Hoogewerf v. Kovach , 185 Mich. App. 577 ( 1990 )

185 Mich. App. 577 (1990) 463 N.W.2d 160

HOOGEWERF
v.
KOVACH

Docket No. 111939.

Michigan Court of Appeals.

Decided October 1, 1990.

Michael J. Berezowsky, for Ronald Hoogewerf.

Brescoll & Associates, P.C. (by James A. Brescoll and Philip K. McNelis), for Judy Hoogewerf, George Hoogewerf, Evelyn Zilinick, Jeffrey Hoogewerf and Terrance Hoogewerf.

Before: CAVANAGH, P.J., and McDONALD and MARILYN KELLY, JJ.

MARILYN KELLY, J.

Appellant, Ronald Hoogewerf, appeals as of right the circuit court's order regarding the distribution of proceeds of a wrongful death judgment pursuant to MCL 600.2922(6); MSA 27A.2922(6). On appeal, Ronald claims that the trial court erred in awarding him only ten percent of the monies recovered as a result of his son's death. We affirm.

Christopher Hoogewerf died on November 3, 1984. His mother, Judy Hoogewerf, was named personal representative of his estate. She filed a wrongful death action against Michael Kovach and Orleans Family Restaurant. The suit was ultimately settled with entry of a consent judgment totalling $159,139.92. Christopher was survived by his father, his mother, two brothers and two grandparents.

On June 13, 1988, the court entered an order approving attorney fees and awarding each grandparent 2 1/2 percent of the net proceeds. An evidentiary hearing then was held to determine distribution of the remaining ninety-five percent.

Following the hearing the judge found that Judy Hoogewerf had suffered the greatest loss from the death of Christopher. He also found that Christopher had a closer relationship with his brothers than his father. Accordingly, the judge awarded Judy fifty-five percent of the proceeds, each brother received fifteen percent, and Ronald received ten percent.

Initially we note that there exists no clear standard of review of the trial court's allocation of wrongful death proceeds. The statute requires the court to distribute the proceeds to designated surviving relatives and the estate in a fair and equitable manner considering the relative damages sustained by each party. MCL 600.2922(6)(d); MSA 27A.2922(6)(d).

A panel of this Court articulated a standard of review in a case involving distribution of wrongful death proceeds in probate court. It held that the findings of fact of a probate judge may not be reversed, unless the evidence clearly preponderates in the opposite direction. In re Young Estate, 119 Mich. App. 307, 313; 326 NW2d 492 (1982). The exact meaning of the Young standard is unclear. Also, Young was appealed from a different court. We decline to apply it to this case.

The appropriate standard is the one mandated by the court rule. Findings of fact by the trial court may not be set aside unless clearly erroneous. MCR 2.613(C). In reviewing the findings, we give due regard to the special opportunity of the court to judge credibility. In re Dupras, 140 Mich. App. 171, 174; 363 NW2d 26 (1984). We then review the court's distribution of the proceeds, based on its findings, for an abuse of discretion.

In this case, the evidence supports the finding that Judy Hoogewerf sustained by far the greatest loss on the death of Christopher. After his parents divorced in 1972, Christopher lived with his mother and brothers for all but three months. He contributed financially to the family household. Ronald often failed to make timely support payments. The judge did not clearly err when he found that Christopher's relationship with his mother and brothers was much closer than his relationship with his father. Based on the findings, the distribution of proceeds was not an abuse of discretion.

Affirmed.