Case Remanded Second Time For Required Spousal Support Findings

The trial court in this divorce action failed - for the second time - to make the required findings on certain spousal support factors and, as a result, the support order must again be vacated, the Michigan Court of Appeals has ruled.

Meanwhile, the trial court’s award of attorney fees for the defendant-ex-wife fell within the range of principled outcomes, the Court of Appeals held in Lombardo v Lombardo (Docket No. 364062).

Lombardo was before the Court of Appeals for the second time. In the first appeal, the appellate panel remanded the case (Docket No. 356822) so the Alpena County Circuit Court could:

• justify or modify its spousal support award with sufficient factual findings, and

• conduct a hearing to determine the reasonableness of legal services provided by the defendant’s attorney.

On remand, however, the trial court “failed to make the required findings on the relevant spousal support factors, so we must again vacate the award of spousal support and remand,” the Court of Appeals said in this second appeal. “On the other hand, the trial court’s determination of reasonable attorney fees fell within the range of principled outcomes, so we affirm on that issue.”

Judge Michael J. Kelly, Judge Kathleen Jansen and Judge Kristina Robinson Garrett were on the panel that issued the unpublished opinion.

Background

In the first appeal, the plaintiff-ex-husband claimed the trial court wrongly awarded spousal support for a five-year period following a two-year marriage. In July 2022, the Court of Appeals vacated the spousal support award, finding the Alpena County trial court did not make the necessary factual findings. “The trial court simply listed facts that corresponded to some of the relevant factors, but it did not make findings pertaining to whether the facts weighed in favor of or against spousal support, nor did it explain its basis for concluding that the facts warranted additional support.”

The plaintiff also argued in the first appeal that the trial court erred by ordering him to pay the defendant’s attorney fees. The Court of Appeals held the trial court properly found that an award of attorney fees was appropriate but erred “by awarding the specific amount of attorney fees without conducting a hearing to determine the services rendered and the reasonableness of the services.”

Accordingly, in the first appeal the Court of Appeals affirmed the trial court’s ruling that the defendant was entitled to attorney fees. However, the appellate panel vacated the trial court’s award of spousal support, as well as the specific amount of attorney fees awarded, and remanded the case “for additional proceedings concerning those awards.”

On remand, the trial court “expressed uncertainty about complying with this Court’s opinion because it had ‘no idea why [Judge Mack] ordered’ spousal support” and “issued an opinion attempting to justify the five-year award of spousal support ….” In addition, the trial court let the plaintiff contest the reasonableness of legal services rendered by the defendant’s attorney. “The plaintiff declined to contest any particular services or incurred charges in defendant’s bill of costs; he instead argued that the disparity in fees incurred by the parties established the unreasonableness of defendant’s request. “

The trial court, on remand, granted reasonable attorney fees of $32,605.26 (the same amount that had been previously ordered). According to the trial court, this amount was “based on the degree of litigation and the need to validate and double check any and everything the [p]laintiff stated.” The trial court further indicated this amount was less than the amount requested by the defendant, “which reflected the court’s belief that defendant, not just plaintiff, was partly responsible for extending this litigation.”

The plaintiff filed a motion for reconsideration, asking the trial court to “[m]ake specific factual findings on the [spousal support] factors that are relevant to this case as required by the Court of Appeals remand to the trial court.” The trial court denied the motion.

The plaintiff appealed a second time.

Spousal Support

In this second appeal, the plaintiff argued the trial court failed to adequately address the spousal support factors as required by its first remand order. The plaintiff “contends that the award of five years of spousal support for a two-year marriage was inequitable.”

The trial court, on remand, “legally erred by failing to comply with this Court’s instructions,” the Court of Appeals said. “The trial court’s opinion again ‘listed facts that corresponded to some of the relevant factors’ but did not explain how those facts justified the five-year award of spousal support.”

In addition, the trial court “failed to make adequate findings on several relevant factors, including, but not limited to, the parties’ ability to work, their past relations and conduct, their needs, their prior standard of living, and principles of equity,” the Court of Appeals explained.  “Accordingly, we must again vacate the award of spousal support.”

On second remand, “the trial court must articulate its findings on all relevant spousal support factors and explain whether those factors justify the current five-year award or warrant modification of the award,” the Court of Appeals emphasized.

The Court of Appeals continued by noting that although the factual record was insufficient for review, the plaintiff made “one purely legal argument that warrants further discussion.” The plaintiff cited Korth v Korth, 256 Mich App 286 (2003), and contended that a trial court “may not consider prior periods of cohabitation to justify an award of spousal support as it is clearly against the public policy of this State.”

Under Korth, in determining the length of spousal support, “the trial court should not use the length of the relationship as a barometer,” the Court of Appeals observed. “The trial court’s opinion clashed with Korth when it stated that ‘Judge Mack viewed the marriage as not just being two years, but a nine year relationship.’ … On remand, the trial court should not rely on the length of the parties’ relationship as a basis for a longer award of spousal support.”

Attorney Fees

The plaintiff, in this second appeal, also asked the Court of Appeals to set aside the attorney fee award for the defendant, asserting it was unreasonable.

“We previously held that the trial court’s findings supported an award of attorney fees for defendant under MCR 3.206(D)(2)(a),” the Court of Appeals wrote. “That court rule allows payment of attorney fees when one party ‘is unable to bear the expense of the action’ and ‘the other party is able to pay.’ … When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services.”

The plaintiff had maintained the defendant’s request for attorney fees was unreasonable because she incurred more than double the fees that the plaintiff incurred. “Plaintiff declined to challenge any specific rendered services,” the Court of Appeals pointed out. “The trial court again awarded $32,605.26, a reduction from the $45,106.26 in attorney fees that defendant claimed she had incurred. The court reasonably considered the ‘degree of litigation’ in its calculus. Because plaintiff had significant assets and financial holdings, defendant’s attorney rendered more services as part of the discovery process than plaintiff’s counsel. Additionally, as we noted, ‘[n]umerous show cause orders were issued against plaintiff during the pendency of the case for failing to cooperate with discovery and violating various pretrial orders.’ … Moving for these orders required defendant to incur legal expenses.”

The plaintiff’s argument on appeal “goes no further than emphasizing the disparity in attorney fees incurred by the parties,” the Court of Appeals said. “But plaintiff fails to acknowledge that the trial court reduced the amount requested in defendant’s bill of costs by nearly $13,000. In addition, by disclaiming any challenge to the reasonableness of specific services performed by defendant’s counsel, plaintiff has provided no basis by which we could conclude that the trial court’s reasonableness determination fell outside the range of reasonable outcomes.”

Accordingly, the Court of Appeals “[a]ffirmed in part, vacated in part, and remanded for further proceedings ….”