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DIVORCE 54: The trial court abused its discretion in denying Defendant’s request for attorney fees without conducting a hearing or allowing her to support her request.

This case arises from the dissolution of plaintiff and defendant’s marriage. Defendant was a stay-at-home parent for the parties’ two children during the majority of the marriage. The children were adults at the time of the separation and divorce. The trial court determined that plaintiff owed defendant $107,112 as a property equalization award, and awarded defendant $1,500 per month in spousal support for a period of 10 years, at which time defendant would become eligible for social security income. The trial court’s denied defendant’s request for attorney fees. Defendant now appeals.

ANALYSIS

Defendant argues that the trial court abused its discretion by denying her request for a hearing regarding attorney fees and by denying her request for attorney fees. We agree. The trial court must provide a reasoned basis for its discretionary decision regarding attorney fees. Attorney fees are authorized by statute and by court rule in a divorce action.  The trial court has authority to order a party’s payment of the other party’s attorney fees during the pendency of the divorce case. MCL 552.13(1). MCR 3.206(D)(1).   In this case, after the close of proofs but before the trial court issued its oral opinion, defendant requested a hearing regarding attorney fees because “it was impossible to determine, at the time of the trial, the amount of attorney’s fees that were generated by [sic] client and to give the court an understanding as to how much attorney fees my client has paid.” The trial court indicated that proofs were closed and that the parties waived closing arguments. The trial court also indicated that the issue regarding attorney fees was not addressed during the bench trial. The trial court denied defendant’s request for a hearing regarding attorney fees and declined to address whether defendant was entitled to attorney fees. After the trial court issued its oral opinion, defendant requested that the value of her property award be adjusted from $145,000 to $125,000 to reflect her debt of $20,000 in attorney fees. The trial court indicated that defendant failed to raise the issue of attorney fees before the close of proofs and that it would not address whether defendant was entitled to attorney fees. The trial court ordered each party to pay their respective attorney fees. Defendant’s request for attorney fees was timely under MCL 522.13(1) because it was made during the pendency of the divorce proceeding and before the trial court gave its oral opinion regarding the divorce judgment, rather than after the entry of an order that resolved the last pending claims and closed the case. Defendant’s request for attorney fees was also timely under MCR 3.206(D) because a request for attorney fees under this court rule can be made “at any time.” MCR 3.206(D)(1). Therefore, the trial court had authority to award defendant attorney fees at the time of defendant’s request under MCL 522.13(1) and MCR 3.206(D). Defendant testified during the bench trial that she had a credit card balance of $2,000 for legal fees in this case. Defendant also testified that she borrowed approximately $20,000 from her sister to pay for attorney fees in this case, although there were no loan documents. The lower court record also supports that defendant’s salary was $22,000 per year in 2018 before taxes and payroll deductions and that plaintiff’s income was $210,000 in 2018. Defendant was not required to invade her assets that she relied on for support or to invade the property award in order to pay attorney fees to defend this action. These facts support defendant’s request for attorney fees on the basis of defendant’s inability to pay to defend the divorce proceeding and plaintiff’s ability to pay. By failing to hold a hearing or to allow defendant to support her request for attorney fees, the trial court did not render a decision on the basis of the particular facts and circumstances regarding the parties’ financial situations and the equities involved. Accordingly, the trial court failed to provide a reasoned basis for its denial of defendant’s request for attorney fees and remand is required to permit the parties to develop the factual record and allow the trial court to consider defendant’s request and to exercise its discretion in the first instance.

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