By Paul Fletcher
BridgeTower Media Newswires
DETROIT — A husband’s efforts to find “loopholes” in a judge’s orders and his failure to cooperate in the sale of the marital home justify an award of attorneys’ fees to his wife, a panel of the Michigan Court of Appeals has ruled.
Even though the husband testified he did not want a divorce, he was compelled to follow the judge’s orders, the court found.
The per curiam decision, Lang v. Lang, was issued by Judges Kathleen Jansen, Parick M. Meter, and Thomas C. Cameron.
The parties had been married for 29 years. The wife testified that she had been a stay-at-home mother for 27 years and had earned no income during that time. The couple relied on the pay of the husband, who earned $93,000 a year.
She also said she had a chronic back condition that prevented her from standing or sitting for a long period of time; as a result, she requested support.
The wife also sought attorneys’ fees for the husband’s failure to negotiate in good faith at a mediation and “his interference with the sale of the marital home.”
The trial court made findings on all the factors from the 2003 Olson v. Olson case, except for fault, and awarded the wife $2,910 per month.
She was 51, and she had no education, training or experience. Additionally, the court said, her back issues “do not make her very marketable.”
The husband had the “clear ability to pay support,” stated the opinion. This decision was appropriate, the panel found.
The trial judge also awarded the wife an award of attorneys’ fee of $8,000, to which the husband objected.
But the appeals court backed the judge on this issue as well.
Attempts at mediation in the case were a failure. The husband did not attend the first scheduled session. After the wife filed a motion to compel, the judge ordered the parties to meet for a good-faith mediation that did not produce a settlement.
The husband testified that he did not want a divorce. That fact apparently impacted his behavior at the mediation and the handling of the sale of the marital home.
The house went on the market and the husband rejected three different offers. The real estate agent listed the home as being 285 square feet larger than it actually was. The husband nixed an initial offer of $270,000. After a second offer of $287,000, he called the agent and identified the size discrepancy. The second offeror came back with a bid of $278,700 and the husband countered at $290,000.
The home did not sell; the wife had been willing to take all three offers.
The court wrote that the husband told the wife, “[T]he judge said I had to put the house up for sale, but the judge did not tell me I had to [sell] the house.”
The trial judge authorized the wife to sell the house for any offer of $278,000 or higher.
The husband objected to the attorneys’ fees, arguing that the wife could pay her lawyers from her take from the house. But the court, citing a 1993 Appeals Court decision, said that a party does not have to invade her assets to pay lawyer fees when she is relying on those same assets to live.
He also claimed he was being penalized for exercising his right to go to trial.
Here, the court made clear its reasons for affirming the fee award: The trial judge awarded fees, it said, because in both a failed mediation and in the sale of the home, the husband “attempted to find loopholes in the trial court’s order, rather than participating in good faith, as he was required to do.”
The panel affirmed the trial court’s findings.
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