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Fees In Divorce Case Properly Denied: Not Pursued Within “Reasonable Time”

Posted on Wednesday, February 12, 2020

A plaintiff’s request for attorney fees in a divorce action was properly denied by the trial court because, by neglecting the issue for nearly two years, the plaintiff did not pursue the fees within a “reasonable time” under MCR 3.206, the Michigan Court of Appeals ruled in Colen v Colen.

What is a “reasonable time” under MCR 3.206, the domestic relations court rule that pertains to attorney fees? According to the Court of Appeals in Colen (Docket No. 345318), a reasonable time “depends on the particular facts and circumstances of each case.”

Here, the plaintiff requested attorney fees almost two years after certain motions had already been resolved – and this was not within a reasonable time after the fees were incurred, the Court of Appeals said. As a result, the trial court did not abuse its discretion by finding that her request was untimely, the Court of Appeals held.

Regarding the plaintiff’s request for appellate attorney fees, the Court of Appeals ruled the trial court had to further examine the issue. “Because the record is insufficiently developed to allow adequate appellate review of this issue, the trial court should first address plaintiff’s request for appellate attorney fees,” the Court of Appeals said. “Notably, this request was made within a reasonable time of incurring those fees since they were incurred in the process of pursuing the instant appeal and are not fees incurred for the prior proceedings that culminated in the April 2016 order.”

Judges Kirsten Frank Kelly, Stephen L. Borrello and Deborah A. Servitto were on the panel that issued the published opinion.

Consent Judgment

The plaintiff and the defendant divorced in 2013. Pursuant to a consent judgment, the plaintiff was awarded “sole care, custody and control” of the parties three children and the defendant was ordered to pay child and spousal support. The consent judgment also provided that the defendant was responsible for the plaintiff’s attorney fees “for an amount not to exceed $5,000.00.”

From March 2014 through April 2016, the Wayne County Circuit Court addressed several disputes between the plaintiff and the defendant regarding property division, support, custody and parenting time. In February 2015, the trial court ordered the defendant to pay the plaintiff $20,000 “for the resolution of all currently outstanding attorney fees as of today’s date ….” On April 18, 2016, the trial court entered an opinion and order following a hearing that resolved a parenting time dispute. In its opinion, the trial court did not address, or make any reference to, attorney fees. Nor did the plaintiff’s trial brief, which was filed before the evidentiary hearing, include a request for attorney fees.

On April 5, 2018 – nearly two years later – the plaintiff filed a motion regarding child support matters. She also filed a motion for attorney fees, requesting that the defendant be ordered to pay fees “for this litigation, as well as the litigation incident to the parties’ competing parenting time motions which were resolved via an opinion entered on April 18, 2016.” The plaintiff indicated that she was seeking fees related to the parenting time dispute from February 10, 2015 through November 2, 2017 and asserted that she incurred more than $37,000 in fees. The plaintiff maintained that MCR 3.206(C)(1) permitted her to “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 specific proceeding, including a post-judgment proceeding.”

After a July 23, 2018, hearing dedicated solely to the attorney fee issue, the trial court denied the plaintiff’s motion for fees “up and through the current request.” While the trial court recognized that MCR 3.206 permitted that a request for attorney fees can be made at “any time,” it reasoned that the plaintiff’s request was untimely because she “waited more than two years without pursuing the attorney fees related to the prior parenting time motions that had already been resolved.”

The plaintiff appealed.

Untimely Request

The plaintiff argued on appeal that the trial court erred by denying her motion for attorney fees and by concluding that her request was untimely. Specifically, the plaintiff asserted that MCR 3.206(D)(1) expressly allows a party to seek attorney fees in a divorce action “at any time.”

Addressing the plaintiff’s claims, the Court of Appeals explained the issue was whether a trial court may determine that a motion for attorney fees by a party in a divorce action was untimely and deny the motion on that basis, despite the language in MCR 3.206(D)(1) permitting a party in a divorce action to request attorney fees “at any time.”

“We acknowledge that this language appears broad and that there is no explicit time limitation in the rule,” the Court of Appeals wrote, citing Smith v Smith, 278 Mich App 198 (2008). In Smith, the Court of Appeals held that an abuse of discretion occurs “when the trial court’s decision falls outside the range of reasonable and principled outcomes.”

The plaintiff’s case, however, was distinguishable from Smith “in a crucial respect,” the Court of Appeals stated. “Plaintiff in this case allowed almost two years to elapse without taking any action in the trial court related to the divorce action, much less any action in the trial court directed at attempting to recover attorney fees related to any portion of the action under MCR 3.206. Smith, in contrast, involved an attorney fee request that was made in the context of ongoing litigation that was actively proceeding in the trial court. … Accordingly, we conclude that we are not bound by Smith on this issue under the circumstances of this case.”

The Court of Appeals then turned to other appellate rulings for guidance, including Baynesan v Wayne State University, 316 Mich App 643 (2016). The Baynesan panel held that the Court of Claims did not abuse its discretion in determining that the defendant’s attempt to transfer a case from the Circuit Court to the Court of Claims was ineffective for being untimely, even though the statute allowing the transfer did not include an explicit time limitation. The Baynesan panel further noted that a “trial court has the inherent authority to control its own docket.”

The Court of Appeals also examined Avery v Demetropoulos, 209 Mich App 500 (1994). In Avery, the plaintiff appealed from an order awarding costs and attorney fees to the defendant because the plaintiff was deemed to have filed a frivolous claim within the meaning of MCL 600.2591(3). “There is no timing requirement contained in MCL 600.2591 for when a motion for costs under this statute must be made,” the Court of Appeals said. “This Court held that with respect to the procedure for recovering costs under MCL 600.2591, the ‘appropriate standard to apply to the statute is whether the motion for costs was filed within a reasonable time after the prevailing party was determined.’ … Subsequently, this Court has concluded that whether a motion for costs under MCL 600.2591 was brought within a reasonable time after the prevailing party was determined ‘depends on the circumstances’ of the individual case.”

Based on the foregoing, the Court of Appeals concludes that a motion for attorney fees under MCR 3.206(D) must be brought within a reasonable time after the fees sought were incurred and that what constitutes a reasonable time depends on the particular facts and circumstances of each case. “A trial court’s decision to deny attorney fees on the ground that the motion was untimely for being made outside a reasonable time is within its inherent authority to ‘impose sanctions appropriate to contain and prevent abuses so as to ensure the orderly operation of justice,’ as well as its inherent authority to ‘manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.’”

The trial court in this case properly denied the plaintiff’s motion for attorney fees with respect to the matters preceding and including the 2018 motion for fees on the ground that by neglecting the matter for almost two years, the plaintiff failed to timely pursue fees under MCR 3.206, the Court of Appeals said. “To the extent that plaintiff apparently attempted to recover certain additional attorney fees in 2016 after the February 9, 2015 order awarding fees and before the April 18, 2016 order resolving the parties’ parenting time dispute, it appears from the record that plaintiff abandoned this attempt and that plaintiff never took any action in the trial court between April 2016 and April 2018 to obtain attorney fees for the period at issue after the attorney fee issue was not addressed in the trial court’s April 18, 2016 order.”

Therefore, the plaintiff’s April 2018 motion “was not brought within a reasonable time after the attorney fees at issue were incurred, and the trial court did not abuse its discretion by determining that the motion was untimely,” the Court of Appeals concluded. “Dismissal of the motion on the basis of untimeliness was within the trial court’s inherent authority to manage its affairs and sanction litigants.”

Appellate Fees

The plaintiff also argued that she should be awarded appellate attorney fees under MCR 3.206(D)(2)(a). Specifically, the plaintiff maintained that she was unable to bear the expense of the appeal while the defendant had the ability to pay.

Addressing this argument, the Court of Appeals focused on the financial status of each party in relation to the attorney fees “because this is all that MCR 3.206(D)(2)(a) discusses and there is no language in the subrule requiring consideration of whether the party requesting attorney fees prevailed on other substantive matters.” The Court of Appeals also pointed out that the plaintiff’s failure to prevail on her argument regarding the trial court’s denial of her motion for attorney fees as being untimely was not dispositive of the issue regarding her request for attorney fees in pursuing the instant appeal.

“However,” the Court of Appeals explained, “the record before this Court does not include factual findings by the trial court sufficient for us to review the issue whether plaintiff is currently unable to bear these expenses.” The Court of Appeals noted that it had “no record of the amount of fees to which plaintiff claims she is entitled as a result of this appeal or whether she would actually need to invade the same spousal support assets that she relies on for living expenses in order to pay her attorney fees.”

As a result, whether the plaintiff satisfied the requirements of the court rule regarding her financial inability to bear the costs was a factual one that had to first be addressed by the trial court, the Court of Appeals stated. “Because the record is insufficiently developed to allow adequate appellate review of this issue, the trial court should first address plaintiff’s request for appellate attorney fees. Notably, this request was made within a reasonable time of incurring those fees since they were incurred in the process of pursuing the instant appeal and are not fees incurred for the prior proceedings that culminated in the April 2016 order.”

In reaching this conclusion, the Court of Appeal cited Gates v Gates, 256 Mich App 420 (2003), saying that it recognized the Gates panel determined that the defendant was entitled to appellate attorney fees under what is now MCR 3.206(D)(2)(a) and remanded only for the trial court to decide the appropriate amount of those fees. However, Gates differed from the present case, the Court of Appeals explained, because the panel had relevant factual findings by the trial court to review.

In contrast, the trial court in this case denied attorney fees to plaintiff on the ground that her motion was untimely and without making any factual findings regarding the parties’ respective abilities to pay attorney fees, and there are no pertinent findings in the current record from which this Court could make a determination whether plaintiff may be entitled to appellate attorney fees under MCR 3.206(D)(2)(a), the Court of Appeals explained. “Thus, Gates does not require this Court to decide first whether plaintiff in this case is entitled to some amount of attorney fees before remanding this matter, nor does Gates prohibit this Court from remanding this matter to the trial court to address this question in the first instance.”

Accordingly, the Court of Appeals affirmed the denial of the plaintiff’s motion for attorney fees related to the prior 2016 hearing and the 2018 motion pursuing those fees. The panel remanded the matter to the trial court “to allow plaintiff to pursue her request for appellate attorney fees related to the instant appeal” under MCR 3.206(D)(2)(a) “so as to develop an appropriate factual record.”

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