Party Didn’t Meet MCR 3.206 Requirements: Must Pay Own Attorney Fees
An ex-wife who filed a motion to modify a custody order was not entitled to attorney fees associated with the motion, because she was able to pay her own fees and the fees were not the result of her ex-husband’s failure to obey a court order, the Michigan Court of Appeals has ruled.
In Hayley v Martin (Docket No. 324689), the plaintiff ex-wife filed a motion to modify the custody and parenting-time order, which the trial court granted in part. Afterward, the plaintiff filed a motion for attorney fees pursuant to MCR 3.206(C), which the trial court denied, finding that both parties worked and were responsible for their own fees.
MCR 3.206(C) says:
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.
A party who requests attorney fees and expenses must allege facts sufficient to show that
the party is unable to bear the expense of the action, and that the other party is able to pay, or
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.
The plaintiff appealed and the Court of Appeals remanded the case, finding the trial court did not adequately address the plaintiff’s fee request.
On remand, the trial court determined the plaintiff improperly sought appeal costs and post-appeal costs, and so the requested fee amount was reduced. The trial court also held that the billable rate and number of hours claimed were reasonable.
The trial court ultimately found the plaintiff failed to prove that she could not pay her own attorney fees or that the defendant was able to pay her fees. Because the requirements of MCR 3.206(C)(2)(a) were not met, the trial court denied the plaintiff’s fee request. The trial court also held the plaintiff was not entitled to fees under MCR 3.206(C)(2)(b), because she did not establish that the fees were incurred because the defendant had violated a previous court order.
Therefore, the trial court held — as it did the first time — that both parties were responsible for their own attorney fees.
On appeal for the second time, the plaintiff argued the trial court applied an incorrect standard to determine whether she could pay her attorney fees. The Court of Appeals disagreed, finding the trial court adequately considered the ability to pay, as required by MCR 3.206(C)(2)(a).
In particular, the Court of Appeals noted that the plaintiff had been paying her own legal fees throughout the case. And while the appeals court said the plaintiff had to prove that financial assistance was necessary, it noted that she had already paid $71,000 in attorney fees.
“Further, plaintiff earned about $62,000 a year and testified that she was paying her attorney $150 a month,” the Court of Appeals said. “Thus, … plaintiff did not prove that she was unable to pay her attorney fees incurred by the filing of her motion to modify the consent judgment of divorce.”
The Court of Appeals also rejected the plaintiff’s argument that the trial court applied an incorrect legal standard.
According to the Court of Appeals, the trial court properly found that the plaintiff failed to show the defendant was “living an extravagant lifestyle and earning $200,000 to $400,000 a year.” The appeals court also noted that the defendant had his own attorney fees to pay. Therefore, the trial court correctly held that the plaintiff did not meet her burden of proof under MCR 3.206(C), and the trial court’s ruling was “amply supported by the record evidence.”
Regarding MCR 3.206(C)(2)(b), the Court of Appeals said the plaintiff did not point to any evidence indicating that she filed her motion to modify custody because the defendant had failed to comply with a prior order. As a result, the appeals court ruled the trial court did not abuse its discretion in finding that the plaintiff was not entitled to fees under MCR 2.306(C)(2)(b).
“In summary, the trial court did not abuse its discretion in denying plaintiff’s request for attorney fees related to the filing of her motion to modify the custody and parenting time provisions of the consent judgment of divorce,” the appeals court concluded.
