Party Must Post Security Bond Before Filing Motions & Pleadings In Divorce Proceedings

The trial court in this “contentious” divorce case properly required the ex-husband to post a security bond each time he filed a motion or pleading, the Michigan Court of Appeals has ruled, due to his “repeated” filing of “meritless” pleadings that violated the court rules.

In Clark v Clark (Docket Nos. 366151 and 367121), the Oakland County Circuit Court granted the plaintiff-ex-wife’s request to require the defendant-ex-husband (an attorney who represented himself) to post a $1000 security bond every time he filed a motion or pleading. The trial court said the bond was necessary because the defendant “had repeatedly filed duplicative, meritless, and harassing pleadings and briefs that the trial court determined were filed for the dilatory purpose of delaying entry of the judgment of divorce.”

After a judgment of divorce was entered, the defendant sought to file a motion to modify child and spousal support without posting security under MCR 2.109. He asked the trial court to waive the security requirement due to his “extreme lack of funds,” claiming his circumstances “had materially changed” since the divorce judgment was entered.” The trial court denied the defendant’s motion, noting it “felt compelled” to impose the security bond “because of the repeated pleadings and briefing the defendant had filed” that violated the court rules. In addition, the trial court found there had not been a material change in either party’s financial circumstances since entering the judgment of divorce.

The defendant appealed. He argued the trial court wrongly denied his request to proceed with his motion to modify child and spousal support without first posting security.

The Court of Appeals rejected the defendant’s argument. “[W]e are not persuaded that the trial court made a mistake in its determination,” the appeals court said. “[B]ecause defendant could not state a legitimate claim, the trial court did not abuse its discretion in denying his motion for leave to proceed without posting bond under MCR 2.109(B)(1).”

Judge Philip P. Mariani, Judge Christopher M. Murray and Judge Christopher M. Trebilcock were on the Court of Appeals panel that issued the unpublished opinion.

Background

The parties were married in 2005 and had three children together. During the marriage, the defendant worked as a bankruptcy and foreclosure attorney, and the plaintiff was a stay-at-home mom. “The contentious nature of these proceedings started at the very beginning, and included issues surrounding the parties’ finances,” according to the Court of Appeals.

In March 2021, the trial court ordered the parties “to maintain the financial status quo that they had practiced before the filing of the divorce action.” After “extensive pretrial motion practice and a 12-day combined bench trial and evidentiary hearing,” the trial court issued a 207-page opinion and order. In the meantime, the plaintiff returned to the workforce as a speech and language pathologist.

Before entering a judgment of divorce, the trial court granted the plaintiff’s request to require the defendant to post a bond for security each time he filed a motion or pleading. In its order, the trial court stated the bond was needed because the defendant “had repeatedly filed duplicative, meritless, and harassing pleadings and briefs” for purposes of “delaying entry of the judgment of divorce.”

The trial court entered the judgment of divorce in April 2023. Among other things, the trial court ordered the defendant to pay $1,430 in child support and spousal support of $3,300 for 90 months. Also, because the defendant was in arrears on the status quo payments that accrued during the proceedings, the trial court ordered him to pay the plaintiff approximately $1,390 a month until he had paid the total arrearage of $34,314, as well as the gross spousal award in the amount of $71,436.33. In addition, as part of summer parenting-time conditions, the trial court ordered the defendant to enroll in anger management counseling, and to provide the court written verification of his participation before the next review hearing. At a May 2023 review hearing, the trial court referred the defendant to a court-approved anger management course because the defendant “informed the trial court that he had been unable to enroll in any of the other court-approved anger management courses because of the availability of the courses and fees.”

A short time later, the defendant filed an ex parte request seeking to proceed with a motion to modify child and spousal support without posting security under MCR 2.109. The defendant asked the trial court to waive the security bond requirement due to his “extreme lack of funds” and maintained that his circumstances “had materially changed” since the judgment of divorce was entered. The plaintiff did not respond to the motion.

The trial court denied the defendant’s motion, saying it was imposing the security bond “because of the repeated pleadings and briefing that defendant had filed that were violative of the court rules.” Further, the trial court explained there had not been a “material change” in either party’s financial circumstances since the judgment of divorce had been entered.

The defendant appealed.

No Legitimate Claim

On appeal, the defendant presented several arguments, including that the trial court erroneously denied his request to proceed with a motion to modify child and spousal support without first posting a security bond.

The Court of Appeals began its analysis by citing MCR 2.109. That court rule says:

• “(A) Motion. On motion of a party against whom a claim has been asserted in a civil action, if it appears reasonable and proper, the court may order the opposing party to file with the court clerk a bond with surety as required by the court in an amount sufficient to cover all costs and other recoverable expenses that may be awarded by the trial court, or, if the claiming party appeals, by the trial and appellate courts. The court shall determine the amount in its discretion. MCR 3.604(E) and (F) govern objections to the surety.

• (B) Exceptions. Subrule (A) does not apply in the following circumstances:

  • (1) The court may allow a party to proceed without furnishing security for costs if the party’s pleading states a legitimate claim and the party shows by affidavit that he or she is financially unable to furnish a security bond. …”

Next, the Court of Appeals referenced In re Surety Bond for Costs, 226 Mich App 321 (1997), which explained that a court may only require security “if there is a substantial reason for it ….” According to that decision, a “substantial reason” for requiring security can exist where there is a “tenuous legal theory of liability” or where there is “good reason to believe that a party’s allegations are ‘groundless and unwarranted.’”

The Court of Appeals also cited Luckow v Luckow, 291 Mich App 417 (2011), which “recognized that MCL 552.28 allows the trial court to permit the modification of a spousal-support award included in its divorce judgment. For the court to modify its prior award, the party seeking modification must meet the threshold of establishing ‘new facts or changed circumstances arising since the prior order regarding support was issued.’”

In the present case, for the defendant to prevail in seeking a modification of spousal support, “he was required to set forth new facts for the trial court or changed circumstances that had arisen since the prior orders were entered,” the Court of Appeals explained. “A review of the trial court’s written ruling confirms that the trial court duly considered each of defendant’s proffered changes of circumstance and new facts, but rejected each of them after determining that the facts and circumstances had existed when the divorce judgment and support orders were entered. Notably, the trial court considered all of the alleged new facts and changed circumstances defendant raised relating to plaintiff’s income and lifestyle, and rejected defendant’s argument that they warranted a modification of the support orders. … The trial court’s conclusions were supported by the record, as plaintiff testified during the bench trial and evidentiary hearing that she had taken a new speech pathology job in November 2022. Accordingly, the trial court’s determination that it had already considered plaintiff’s contract work as a speech pathologist and her plans to work during the summers in its calculations for support purposes was grounded in the evidence.”

Further, the trial court “did not err in finding that defendant’s myriad allegations of changed circumstances all predated entry of the support orders,” the Court of Appeals said. “[T]he trial court correctly observed that the fact that the New Start Law Group closed in September 2022 was also an event that took place before the parties’ judgment of divorce and the support orders were entered. The trial court also rejected defendant’s allegation that it had interfered with his ability to seek employment or to work with his friend, Travis Nims, placing him in ‘a position to fail,’ and the record supports the trial court’s conclusion.”

Meanwhile, the Court of Appeals noted the defendant had asserted that he was “toxic” in the legal community, “no one would hire him to represent clients” and the plaintiff and her attorney “conspired to communicate with a law firm within the small bankruptcy community to inform it of an alleged sexual assault.” The trial court “found these claims unavailing, characterizing them as ‘completely unfounded,’ and importantly, recognized these circumstances existed before entry of the judgment and orders.”

Upon reviewing the record, the Court of Appeals said it was “not persuaded” the trial court made an erroneous decision. “[W]e are not left with a definite and firm conviction that the trial court clearly erred in rejecting defendant’s contention that plaintiff’s alleged actions to sabotage his employment in the bankruptcy field amounted to a changed circumstance that would require the court to revisit child and spousal support,” the appeals court said.

“Because defendant did not present the trial court with evidence of changed circumstances or new facts arising after entry of the support orders, the trial court did not err in holding that his motion to modify the trial court’s orders of child support and spousal support was without merit,” the Court of Appeals held. “Accordingly, because defendant could not state a legitimate claim, the trial court did not abuse its discretion in denying his motion for leave to proceed without posting bond under MCR 2.109(B)(1).”