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DIVORCE 52: The court held that the trial court did not abuse its discretion by awarding defendant ex-wife attorney fees.

Plaintiff and defendant divorced after a 36-year marriage. The divorce trial took place on October 1, 2014, and the court made a dispositional ruling from the bench on October 30, 2014. In the original dispositional ruling, the court erroneously failed to make an award regarding the vested shares of stock in plaintiff’s (now former) employer. After numerous hearings, the trial court awarded defendant spousal support of $5,000 monthly, ordered plaintiff to secure life insurance in an amount not less than $200,000, naming defendant as beneficiary, and awarded defendant her attorney fees from June 12, 2018 in the amount of $38,075. Both plaintiff and defendant moved for reconsideration of the trial court’s order.


We review a trial court’s award of attorney fees for an abuse of discretion while reviewing for clear error the trial court’s underlying factual findings. An abuse of discretion occurs when the trial court’s decision is outside the range of principled outcomes.


Michigan follows the “American Rule” with regard to attorney fees, which provides that “attorney fees are not recoverable as an element of costs or damages unless expressly allowed by statute, court rule, common-law exception, or contract.” In a divorce action, attorney fees are provided for in MCR 3.206(D).   To justify an award of attorney fees under MCR 3.206(D)(2)(b), a trial court must specifically find that a party violated a court order or engaged in misconduct. When awarding attorney fees, the trial court also is required to determine the reasonableness of the fee requested. Although the party seeking attorney fees has the burden to demonstrate the reasonableness of the fees requested, if the opposing party fails to challenge the hourly rate or the amount of time expended before the trial court the issue is not preserved for appellate review. In this case, plaintiff contends that defendant failed to identify the basis for her request for attorney fees. We disagree. Although defendant’s counsel was not entirely clear on this issue at the evidentiary hearing, the record otherwise clearly indicates that the basis under which defendant sought attorney fees was MCR 3.206(D)(2)(b). In the proceedings before the trial court before the initial appeal, defendant moved for partial relief from the consent judgment, and specifically requested that plaintiff be ordered to pay her attorney fees under then MCR 3.206(C)(2)(b) because plaintiff refused to comply with the Consent Judgment despite having the ability to comply, and that plaintiff’s fraudulent misrepresentations caused her to incur substantial attorney fees. The trial court, however, did not rule on defendant’s request before the initial appeal.  This Court has held that the failure to exercise . . . discretion can amount to an abuse of discretion. Because it is appropriate to remand this case for further proceedings as previously discussed, we also remand the issue of attorney fees. This Court thus identified that defendant sought attorney fees under then MCR 3.206(C)(2)(b) on the basis that plaintiff had failed to comply with the trial court’s order, and remanded to the trial court for determination of that issue.

Plaintiff next contends that defendant failed to present evidence that the amount of attorney fees requested is reasonable. On remand, defendant filed two statements for attorney fees: one for fees through March 28, 2016, (105.9 hours at $275 per hour plus costs for a total of $38,174), and another statement for attorney services provided after June 5, 2018 (57.5 hours in attorney fees at the rate of $250 per hour, for a total of $14,375). At the evidentiary hearing held on remand, defense counsel testified that he was licensed to practice law in Michigan, and that the exhibits filed demonstrating the amount of attorney fees expended were “accurate and honest.” Because defendant provided information of the hourly rate, number of hours worked, and the purpose of the fees expended, defendant submitted sufficient relevant documentation to support her request for attorney fees. Plaintiff also challenges the reasonableness of the fees requested. Plaintiff, however, points to no place in the record where he challenged the reasonableness of defense counsel’s hourly rate or the amount of hours expended. Although plaintiff’s counsel stated during the evidentiary hearing that he was not stipulating to the reasonableness of the fees, plaintiff did not actually challenge the reasonableness of the fees sought. Michigan follows the general “raise or waive” rule of preservation of an issue for appellate review. We therefore decline to review this unpreserved issue. Finally, defendant contends that she was entitled to additional attorney fees that she incurred from 2015 to 2018 as a result of plaintiff’s misrepresentations about his vested stock. However, on remand the trial court in this case did not explain on the record the reason for denying the additional attorney fees sought by defendant. Although it was within the trial court’s discretion to grant less than the amount sought by defendant, the trial court failed to create a record for review by this Court and failed to support its decision by findings. We therefore remand that issue for the trial court to state the basis for its decision on defendant’s request for additional attorney fees.


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