By Traci R. Gentilozzi
The Daily Record Newswire
A plaintiff is entitled to more than $10,000 in attorney’s fees and costs in a parenting-time dispute even though the trial court was partially wrong in its reason for awarding them, the Michigan Court of Appeals has ruled.
The defendant, Daniel Speicher, asked the Washtenaw Circuit Court on several occasions to reinstate his parenting time. The plaintiff, Aletha Chaconas, opposed the motions and requested fees and costs under MCR 3.206(C)(2)(a) and (b).
The defendant challenged the fee request and asked for an evidentiary hearing, which the trial court granted. After the hearing, the trial court awarded the plaintiff $10,705 in fees and costs, finding they were appropriate under:
• MCR 3.206(C)(2)(a), because fees are allowed in domestic relations matters when one party is unable to pay but the other party can.
• MCR 3.206(C)(2)(b), because fees may be awarded in domestic relations cases when one party incurred expenses after the other party refused to comply with a previous order.
• MCR 2.114(D), because the defendant filed a motion that was not well-grounded in fact.
• MCR 2.114(F), because the defendant’s claims were frivolous.
The defendant appealed, claiming the trial court’s analysis was incorrect.
The Court of Appeals agreed the trial court should not have awarded fees under MCR 3.206(C)(2)(b). “Defendant simply did not violate or refuse to comply with a court order by filing the motion to reinstate parenting time,” the appeals court said.
However, despite the misapplication of MCR 3.206(C)(2)(b), the Court of Appeals upheld the fee award under MCR 3.206(C)(2)(a) and also under MCR 2.114(D) and (F).
“[W]e are not prepared to reverse the trial court’s ruling …, despite some flaws in the trial court’s reasoning,” the panel said. The case is Chaconas v. Speicher (MiLW No. 08-89073, 12 pages). Judges Amy Ronayne Krause, William B. Murphy and Deborah A. Servitto were on the panel.
MCR 3.206(C)
After briefly explaining that MCR 3.206(C)(2)(b) was inapplicable, the Court of Appeals turned to MCR 3.206(C)(2)(a).
The defendant claimed the trial court should not have solely relied on the plaintiff’s annual income and that it wrongly disregarded the $21,000 in gambling earnings she had received. He also argued the fact that the plaintiff used the gambling monies to pay credit card debt was irrelevant to determining income and analyzing MCR 3.206(C)(2)(a).
“Initially, we find it quite notable that defendant does not argue that the evidence showed that he was unable to pay plaintiff’s attorney fees and costs,” the appeals court wrote. “Rather, defendant’s focus is on plaintiff’s ability to bear the expenses of the litigation.”
The Court of Appeals said it did not understand why the trial court would not have considered the gambling proceeds. “These winnings were not awarded support assets that would be invaded by taking them into consideration in determining ability to pay. The fact that she may have used the money to pay credit card debt appears irrelevant; defendant was also clearly paying debts with his income.”
In addition, the friend of the court had been imputing income of $20,000 per year to the plaintiff, the panel noted.
“[O]ur focus, as framed by defendant’s appellate arguments, is on plaintiff’s ability to bear the expenses of the litigation, and there was uncontroverted evidence that plaintiff was forced to borrow over $10,000 from her mother, who expects full repayment, in order to specifically litigate defendant’s failed motion to reinstate parenting time,” the appeals court said.
Under the circumstances, the Court of Appeals said it would not reverse the trial court’s ruling, even though some of its reasoning was flawed.
Evidentiary hearing fees
The defendant also argued the trial court should not have awarded fees for the evidentiary hearing. He claimed the only way the trial court could make a decision on fees was to gather evidence of the parties’ financial situations.
“This argument neglects to acknowledge that the trial court had already determined that an award of attorney fees and costs was appropriate under MCR 3.206(C)(2)(b) before the evidentiary hearing was conducted, and that it was defendant’s demand for an evidentiary hearing that caused it to occur,” the Court of Appeals wrote.
“We recognize that we have now held that an award of attorney fees and costs was not justified under MCR 3.206(C)(2)(b),” the panel said. “However, … we have no basis to reverse the trial court’s award under MCR 2.114.”
Moreover, “the evidentiary hearing on plaintiff’s motion for reconsideration would not have occurred but for defendant’s frivolous and factually-unwarranted motion for reinstatement of parenting time,” the appeals court noted. “Therefore, plaintiff was properly awarded attorney fees and costs incurred in connection with the evidentiary hearing itself.”
MCR 2.114
The trial court held that the defendant violated MCR 2.114(D) by not filing a motion that was well-grounded in fact, the Court of Appeals said.
“The trial court, by citing MCR 2.114(F), also evidently concluded that defendant’s motion was frivolous,” the appeals court noted.
However, the defendant asserted that he did not violate either rule because an expert testified that it would be in the child’s best interests to reinstate parenting time and he also testified about attending therapy.
“Given that we have no record to review and thus have no reason or basis to question or call into doubt the trial court’s analysis and interpretation of the presiding judge’s findings, as well as the trial court’s conclusion that defendant’s reinstatement motion was frivolous and not well grounded in fact, we affirm the award of attorney fees and costs under MCR 2.114(D) to (F),” the Court of Appeals concluded.
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