The trial court in this divorce action properly awarded attorney fees to the plaintiff ex-wife because the defendant ex-husband “engaged in misconduct” that caused the plaintiff “to incur unnecessary attorney fees,” the Michigan Court of Appeals has ruled.

In arguing the Grand Traverse County Circuit Court erroneously awarded attorney fees to the plaintiff in Zuidersma v Zuidersma (Docket No. 361194), the defendant asserted the trial court’s reasoning and ruling “did not fit within the parameters of MCR 3.206(D),” the court rule that governs attorney fees in domestic relations cases.

The Court of Appeals affirmed the trial court’s decision.

“Although defendant broadly declares that he vehemently objects to the court’s characterization of the parties’ words and actions, he declines to engage in any factually substantive challenge to the court’s findings of fact,” the Court of Appeals said. “He does not point to or identify certain findings and then build an argument and set forth an analysis to counter the findings.”

Judges Michael J. Riordan, Jane E. Markey and Christopher P. Yates were on the panel that issued the unpublished opinion.

Background

The parties were married in 2004 and had three children together. The plaintiff filed for divorce in January 2021. In February 2021, the trial court issued an order for temporary custody, child support and parenting time.  Under the temporary order, the parties were awarded joint legal custody of the children, the plaintiff was granted primary physical custody, the defendant was awarded some parenting time and the defendant was required to pay monthly child support of $1,432.

After a hearing, the referee recommended the order for temporary custody, child support and parenting time be continued and incorporated into a judgment of divorce. On July 14, 2021, the trial court adopted the referee’s recommendation. The defendant did not object to the referee’s recommendation. 

A bench trial was held on January 19, 2022, regarding issues of spousal support and the division of marital property and debts. The trial court held there was no reasonable likelihood the marriage could be preserved and, after the parties presented their closing arguments, the trial court issued a written opinion and order. The trial court declined to award any spousal support because the parties each earned sufficient income to provide for their respective needs. The trial court then divided the marital assets and debts.

Pertaining to this appeal, the trial court also ruled as follows: 

“An Order for Temporary Custody, Support and Parenting Time was entered on February 11, 20[2]1, with no objection from Defendant. Yet, despite failing to object, no new change of circumstance or proper cause, Defendant proceeded to insist on a multi-day child custody trial [before the referee]. Moreover, while Defendant denied or diminished certain acts of domestic abuse at the custody trial, letters he wrote the children essentially admitted the acts of rage, anger, and abuse.  After the custody trial, Defendant was actually awarded less parenting time than he had originally been offered. Furthermore, Defendant’s unfounded property-related arguments resulted in a bench trial that incurred additional attorney fees and costs for both parties. Given the evidence of Defendant’s misconduct during the marriage and his unsupported legal claims at both the custody and property trials, the Court finds that Plaintiff is entitled to reimbursement for attorney’s fees and costs. The Defendant shall reimburse the Plaintiff $10,000 for attorney’s fees and costs.”

The plaintiff’s $10,000 attorney fee award was included in the judgment of divorce.

The defendant appealed. 

The Arguments

On appeal, the defendant presented a four-page brief, citing the standards of review and quoting MCR 3.206(D), the Court of Appeals noted.

The defendant argued the following in his appellate brief: “While [defendant] vehemently objects to the trial court’s interpretation of the parties’ words and actions in its Findings of Fact, no detailed response is required, because no facts cited by the court provide the basis for an award of attorney fees. In order even to ask the court for an award of attorney fees, [plaintiff] would have had to allege that she was ‘unable to bear the expense of the action’ and that [defendant] was ‘able to pay.’ [Plaintiff] alleged neither requirement and proved neither at trial. In the alternative, [plaintiff] would have had to allege that a certain amount of her attorney fees was incurred because [defendant] ‘refused to comply with a previous court order, despite having the ability to comply, or engaged in discovery practices in violation of these rules.’ [Plaintiff] alleged neither requirement and proved neither at trial. In other words, there were no grounds for the trial court’s award of attorney fees.”

According to the Court of Appeals, “This is the entirety of defendant’s appellate argument.”

Meanwhile, the plaintiff claimed the trial court correctly held that attorney fees were warranted due to the defendant’s misconduct or unreasonable conduct that caused the plaintiff to incur the awarded fees.

“Plaintiff contends that aside from MCR 3.206(D), a court in a domestic relations action has authority under the common law to award attorney fees for a party’s misconduct,” the Court of Appeals said. “Plaintiff maintains that in this case the trial court properly awarded attorney fees because defendant had engaged in misconduct that caused plaintiff to incur unnecessary attorney fees.”

Misconduct Supports Fees

Next, the Court of Appeals examined the “American rule” for awarding attorney fees.

Under the American rule, which Michigan follows, “attorney fees are not recoverable as an element of costs or damages unless expressly allowed by statute, court rule, common-law exception, or contract,” the Court of Appeals explained, citing Reed v Reed, 265 Mich App 131 (2005).

In the context of domestic relations actions, MCR 3.206(D) says the following when it comes to attorney fees:

“(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. 

(2) A party who requests attorney fees and expenses must allege facts sufficient to show that: 

(a) the party is unable to bear the expense of the action, including the expense of engaging in discovery appropriate for the matter, and that the other party is able to pay, or 

(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, or engaged in discovery practices in violation of these rules.”

“In light of the specific reasoning given by the trial court for awarding plaintiff $10,000 in attorney fees in this case, we agree with defendant that MCR 3.206(D), as well as MCL 552.13(1), did not support the court’s ruling,” the Court of Appeals wrote.

“Nevertheless,” the Court of Appeals continued, “the Reed panel recognized a common-law exception to the American rule that authorizes an award of attorney fees when a party has been forced to incur fees as a result of the other party’s unreasonable conduct during the course of litigation. … Under the exception to the American rule …, the attorney fees awarded must have been incurred because of misconduct.” 

Here, the trial court “expressly referenced ‘[d]efendant’s misconduct during the marriage and his unsupported legal claims’ when making the decision to award plaintiff attorney fees,” the Court of Appeals said. “Although the court did not specifically state that it was applying the common-law exception that permits a court to assess attorney fees for misconduct or unreasonable conduct, that is exactly what the court did in awarding attorney fees to plaintiff. Defendant does not challenge the validity of the common-law misconduct exception to the American rule.  Indeed, he does not even acknowledge the exception’s existence. And, … defendant does not craft or develop an argument actually challenging the court’s finding of misconduct or unreasonable conduct.”

Therefore, “we conclude that the trial court did not err by awarding plaintiff $10,000 in attorney fees,” the Court of Appeals ruled.