The plaintiff’s appeal is limited to that portion of the trial court’s order denying her request for attorney fees as a sanction, the Michigan Court of Appeals has ruled, finding that the plaintiff was not entitled to fees.

The plaintiff in Shepard v. Shepard (Docket No. 353900) had filed a motion to modify child support in the Ionia County Circuit Court. In response, the defendant (the plaintiff’s ex-husband) filed various motions. The plaintiff then requested attorney fees as a sanction, claiming the defendant’s motions were frivolous and were intended to harass, embarrass or injure her and otherwise delay the proceedings.

In a March 16, 2020, order, the trial court granted the defendant’s motion for a more definite statement, motion to quash subpoenas and request for a protective order. The trial court denied the defendant’s request for attorney fees in that same order. The trial court never explicitly ruled on the plaintiff’s motion for fees.

The plaintiff appealed, asserting the trial court abused its discretion and that her motion to modify child support satisfied MCR 2.119. She identified the trial court’s March 16, 2020, order as the “final order” from which she was appealing.

But according to the Court of Appeals, the March 16, 2020, order did not dispose of all the claims in the case and was not designated a “final order” pursuant to MCR 2.604(B). As a result, the plaintiff’s appeal “is limited to the portion of the trial court’s decision that denied her request for attorney fees,” the Court of Appeals said.

Accordingly, the Court of Appeals reviewed the plaintiff’s fee arguments, finding the trial court properly denied her request because there was no evidence the defendant’s claims were frivolous. “The plaintiff did not provide, and the trial court record did not include, any evidence that defendant’s motion to quash was meant to delay litigation or embarrass, injure, or harass her,” the appeals court wrote.

Judges Mark T. Boonstra, Mark J. Cavanagh and Michael F. Gadola were on the panel that issued the unpublished decision.

Background

In March 2019, the parties entered into a consent judgment of divorce and uniform child support order. On January 24, 2020, the plaintiff requested modification of child support, asserting there had been a change of circumstances in the defendant’s employment and income level since March 2019.

The plaintiff issued subpoenas to the defendant, his employer, the employer’s president and human resources department, and two employees of the accounting firm used by the defendant’s employer. The defendant moved to quash the subpoenas under MCR 2.305(A)(4)(a), arguing they were not reasonably calculated to result in admissible evidence of the defendant’s income available under the Michigan Child Support Formula. Specifically, the defendant maintained the information being sought was irrelevant or had been disclosed during proceedings before the trial court approved the consent judgment of divorce. The defendant also requested attorney fees and a protective order if the trial court ordered the production of confidential information.

Regarding the plaintiff’s motion to modify child support, the defendant moved for a more definite statement or to strike pleading, and for sanctions. He argued the plaintiff’s allegation that his employment and income had changed was insufficient under MCR 2.115. He further claimed that, pursuant to MCR 2.119(A)(1)(b), the plaintiff failed to state the grounds upon which her motion was based with particularity and requested sanctions under MCR 1.109(E).

The plaintiff responded, asserting that because MCR 2.115 only applies to pleadings, the trial court could not grant the relief sought by the defendant in his motion for a more definite statement or to strike pleading. The plaintiff also contended that her motion to modify child support complied with the particularity requirements of MCR 2.119(A)(1)(b). Regarding the subpoenas, the plaintiff argued the defendant’s income included more than wages and, therefore, the information subpoenaed was relevant. The plaintiff further argued against a protective order, claiming the defendant had not shown good cause. The plaintiff also requested attorney fees as a sanction. She claimed the defendant’s motion to quash subpoenas was frivolous and intended to harass, embarrass or injure her. At a subsequent hearing, the plaintiff again requested attorney fees.

In a March 16, 2020, order, the trial granted the defendant’s motion for more definite statement and his motion to quash subpoenas, and denied his request for attorney fees.

The plaintiff appealed.

Final Order?

On appeal, the plaintiff maintained she was appealing from the trial court’s March 16, 2020, order. She argued this was the “final order” in the case pursuant to MCR 7.202(6). That court rule states, in relevant part:

“(a) In a civil case,

(i) the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties, including such an order entered after reversal of an earlier final judgment or order;

(ii) an order designated as final under MCR 2.604(B);

(iii) in a domestic relations action, a postjudgment order that, as to a minor, grants or denies a motion to change legal custody, physical custody, or domicile;

(iv) a postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law or court rule;

(v) an order denying governmental immunity to a governmental party, including a governmental agency, official, or employee under MCR 2.116(C)(7) or an order denying a motion for summary disposition under MCR 2.116(C)(10) based on a claim of governmental immunity[.]”

In its analysis, the Court of Appeals noted the March 16, 2020, order granted the defendant’s motion for more definite statement and motion to quash subpoenas, and denied his request for attorney fees. “This order neither disposed of all claims in this case nor was designated as final under MCR 2.604(B),” the appeals court wrote. “Also, the order was not a post-judgment order addressing custody or domicile of a minor, and did not include a governmental immunity claim. Nonetheless, because the order implicitly denied plaintiff’s request for attorney fees, and denied defendant’s request for attorney fees, MCR 7.202(6)(a)(iv) applies to this appeal.”

Citing MCR 7.202(6)(a)(iv), the Court of Appeals further pointed out that MCR 7.203(A) says the appeals court has “jurisdiction of an appeal of right filed by an aggrieved party” from a “final order” that denied attorney fees. “However, MCR 7.203(A)(1) limits an appeal under MCR 7.202(6)(a)(iv) ‘to the portion of the order with respect to which there is an appeal of right.’ Accordingly, such ‘appeals only pertain to the award of attorney fees’ and ‘any issue outside those challenging the award of attorney fees goes beyond our jurisdiction over these appeals.’”

Therefore, the plaintiff’s appeal “is limited to the portion of the trial court’s decision that denied her request for attorney fees,” the Court of Appeals said.

No Fees

The Court of Appeals continued by examining whether the trial court abused its discretion by denying the plaintiff’s request for attorney fees. The plaintiff had requested fees pursuant to MCL 600.2591 and MCR 1.109(E)(5) and (6) in her response to the defendant’s motion to quash. The plaintiff’s lawyer again requested fees at a March 3, 2020, hearing.

“The trial court did not explicitly hold when making its oral findings or in its written order that it was denying plaintiff’s request for attorney fees,” the Court of Appeals wrote. “Notably, the trial court’s March 16, 2020, order only specified that it denied defendant’s request for attorney fees. However, neither party disputes that the trial court denied plaintiff’s request for attorney fees. Furthermore, we find that the trial court’s order granting defendant’s motion to quash implicitly denied plaintiff’s request for attorney fees.”

Moreover, the plaintiff was not the prevailing party in the case and, as a result, was ineligible for attorney fees, the Court of Appeals said, citing MCL 600.2591(3)(b). “When the trial court granted defendant’s motion to quash subpoenas, it was affirming defendant’s factual and legal arguments, which were the same factual and legal arguments that plaintiff argued constituted grounds for sanctions under MCL 600.2591 and MCR 1.109(E)(5) and (6). Nevertheless, plaintiff is correct that the MCSF broadly defines income to include more than just wages. … But defendant moved to quash plaintiff’s subpoenas pursuant to MCR 2.305(A)(4)(a), contending that the subpoenas were unreasonable or oppressive. Defendant did not disagree with plaintiff’s definition of income, but with plaintiff’s decision to issue five subpoenas to five different sources seeking largely the same documentation that plaintiff should have already possessed because it was relevant to the divorce judgment that the trial court entered less than a year before plaintiff issued the subpoenas.”

Meanwhile, the plaintiff claimed she was entitled to attorney fees because, if the defendant’s motion to quash was sincere, “he would have responded to the subpoena issued to him,” the Court of Appeals explained. “However, even if defendant had responded to the subpoena, any such response would not have resolved the question of whether the subpoenas issued to defendant’s employer, the employer’s president and human resources department, and two employees of the accounting firm used by his employer were unreasonable or oppressive. … Plaintiff does not expand on this contention, reference any support in the trial court record, or identify legal precedent analyzing similar facts.”

The plaintiff did not provide - and the trial court record did not include - evidence that the defendant’s motion to quash was intended to delay litigation or embarrass, injure or harass the plaintiff, the Court of Appeals concluded. “Therefore, the trial court did not abuse its discretion by denying plaintiff’s request for attorney fees.”