Due Process for Enforcing Charging Liens Recorded in Divorce Judgments Does Not Require a Complaint to be Filed, Summons to be Obtained, or Process to be Served

At the end of last year, the Court of Appeals, in a published opinion, Souden v Souden, 303 Mich App 406; 844 NW2d 151 (2013), clarified the amount of due process required when an attorney seeks enforcement of charging liens secured by a divorce judgment signed by the client debtor. In Souden, each party was responsible for its own attorney fees, and pursuant to the judgment of divorce each attorney retained a lien on his or her client’s “share of the marital assets to insure payment of attorney fees.” Defendant Attorney filed a “Petition for Payment of Attorney Fees . . .” in family court to seek enforcement of the charging lien. Plaintiff Client argued that she was denied due process because: (1) the family court conducted the proceeding without subject matter jurisdiction; and (2) Defendant Attorney did not file a complaint, obtain summons, or serve process regarding the enforcement proceeding.

The Court of Appeals disagreed. First, “[t]”he ability to enforce an attorney’s charging lien is ancillary to a trial court’s exercise of jurisdiction over the cases before it,” and family courts have “power to enforce charging liens secured by a judgment of divorce.” Second, due process was not violated primarily because notice of the charging lien was given on Plaintiff Client’s judgment of divorce. In addition, although Defendant Attorney did not file a complaint, obtain summons, or serve process on Plaintiff Client, Defendant Attorney did serve the petition—which Plaintiff Client answered—and the notice of hearing—which Plaintiff Client attended—on Plaintiff Client, satisfying due process. The Court of Appeals reasons that what might appear to be a surprise is actually a reasoned and appropriate response to the facts of the case. Minimal process was due because the judgment had already been entered. Plaintiff Client was afforded the notice required to appear in court and dispute the amount of money owed to Defendant Attorney (which the rest of the appeal was devoted to). Plaintiff Client was also afforded the service of the petition and could properly prepare for trial.