Pavel Leonte v. Carmen Leonte ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PAVEL LEONTE, UNPUBLISHED
April 12, 2018
Plaintiff-Appellee,
v No. 334931
Washtenaw Circuit Court
CARMEN LEONTE, also known as CARMEN LC No. 09-001251-DM
APOSTIL,
Defendant-Appellant.
Before: O’CONNELL, P.J., and BECKERING and STEPHENS, JJ.
PER CURIAM.
In this divorce action, defendant, Carmen Leonte, appeals as of right the trial court’s
order entered on August 31, 2016. The trial court originally entered a default judgment of
divorce in December 2009. Two panels of this Court have summarized the procedural history of
this case.1 A third panel denied a delayed application for leave to appeal.2 This appeal is
defendant’s fourth. We will address only those issues that are directly raised in this appeal.
Because we find no errors that require reversal of the trial court’s decision to deny spousal
support, deny sanctions, deny attorney fees, and grant the divorce nunc pro tunc to December 8,
2009, we affirm the trial court’s order.
I. SPOUSAL SUPPORT
Defendant argues that the trial court erred by denying her request for spousal support.
We disagree. We review a trial court’s findings of fact related to spousal support for clear error.
1
See Leonte v Leonte, unpublished per curiam opinion of the Court of Appeals, issued May 24,
2011 (Docket No. 296602), and Leone v Leonte, unpublished per curiam opinion of the Court of
Appeals, issued October 22, 2013 (Docket No. 309914).
2
Leonte v Leonte, unpublished order of the Court of Appeals, entered August 8, 2016 (Docket
No. 332737). Because this Court denied leave to appeal in that case, we decline to address
defendant’s challenges to the trial court’s October 30, 2015 order at issue in that appeal. Further,
we note that the trial court found that defendant was permitted to cross-examine plaintiff’s expert
witnesses about the value of the assets in question, which was a less severe sanction than default.
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Moore v Moore, 242 Mich. App. 652, 654; 619 NW2d 723 (2000). “A finding is clearly
erroneous if the appellate court is left with a definite and firm conviction that a mistake has been
made.” Id. at 654-655. “The main objective of alimony is to balance the incomes and needs of
the parties in a way that will not impoverish either party, and alimony is to be based on what is
just and reasonable under the circumstances of the case.” Olson v Olson, 256 Mich. App. 619,
631; 671 NW2d 64 (2003).
The record supports the trial court’s factual findings regarding the spousal support
factors. Although defendant indicated that she had health problems and did not make sufficient
income to support herself, she presented no evidence of any restrictions on her ability to work or
of her minimal income. Defendant was employed as a truck driver at the time of trial. She also
had an associate’s degree in accounting and a real estate license, so she had sufficient earning
potential to support herself.
Defendant presented no evidence that the property awarded to each party in the 2009
judgment of divorce was insufficient. In that judgment, defendant was awarded the marital home
and one of three business condominiums, having equity in excess of $550,000. She was awarded
100% interest in the parties’ company, C&M Tool, Inc. The other business was dissolved, and
any of its assets not specifically provided for in the divorce judgment were divided equally
between the parties. Defendant was also awarded her own retirement assets, debts, bank
accounts, personal property, and vehicle. The total division resulted in each party receiving
$450,927.46 in value. Accordingly, defendant was awarded sufficient resources to support
herself, and an award of spousal support was unwarranted.
II. SANCTIONS
Next, defendant argues that the trial court erred by refusing to impose sanctions. We
disagree. The determination of an appropriate sanction is within the discretion of the trial court.
MCR 2.114(E). We review a trial court’s decision regarding the imposition of sanctions for
clear error. Schadewald v Brulé, 225 Mich. App. 26, 41; 570 NW2d 788 (1997).
Defendant first argues that plaintiff’s failure to inform the court about the “reconciliation
discussions” constituted fraud. This Court previously resolved this issue when it determined that
the trial court did not err by finding that “fraud was not the main cause of the discovery delays
. . . .” Leonte v Leonte, unpublished per curiam opinion of the Court of Appeals, issued October
22, 2013 (Docket No. 309914), p 3 n 2. Therefore, we decline to address this argument because
the prior ruling remains the law of the case. See Ashker v Ford Motor Co, 245 Mich. App. 9, 13;
627 NW2d 1 (2001). We also decline to address defendant’s argument that the trial court erred
by not sanctioning plaintiff for undervaluing the Romanian property because defendant
abandoned this issue by failing to address the merits of her assertion of error. See Thompson v
Thompson, 261 Mich. App. 353, 356; 683 NW2d 250 (2004). In short, the trial court did not err
by denying defendant’s motion for sanctions.
III. ATTORNEY FEES AND COSTS
Defendant argues that the trial court erred when it denied her request for attorney fees
because she does not have the ability to pay and plaintiff does. We disagree. This Court reviews
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a trial court’s grant or denial of attorney fees in a divorce proceeding for an abuse of discretion
and any foundational findings of fact for clear error. Reed v Reed, 265 Mich. App. 131, 164; 693
N.W.2d 825 (2005).
Attorney fees may be awarded in a divorce action when a party needs financial assistance
to prosecute or defend the action. MCL 552.13(1). A party requesting attorney fees and
expenses “must allege facts sufficient to show that the party is unable to bear the expense of the
action, and that the other party is able to pay[.]” MCR 3.206(C)(2)(a). A trial court is required
to give “special consideration to the specific financial situations of the parties and the equities
involved.” Myland v Myland, 290 Mich. App. 691, 703; 804 NW2d 124 (2010). Defendant failed
to meet her burden because she did not allege facts sufficient to show that plaintiff has the ability
to pay her attorney fees, nor did defendant offer evidence to overcome the trial court’s finding
that both parties had limited financial means. In addition, defendant has incurred fees and costs
that were not necessary to defend the divorce action by pursuing repetitive claims. Accordingly,
the trial court did not abuse its discretion by declining to award attorney fees.
IV. DIVORCE NUNC PRO TUNC
Finally, defendant asserts that the trial court erred when it entered the divorce judgment
nunc pro tunc. We disagree. We review a trial court’s decision to enter a judgment nunc pro
tunc for an abuse of discretion. Vioglavich v Vioglavich, 113 Mich. App. 376, 386-387; 317
NW2d 633 (1982). An abuse of discretion occurs when the trial court’s decision is outside the
range of reasonable and principled outcomes. In re Temple Marital Trust, 278 Mich. App. 122,
128; 748 NW2d 265 (2008).
Generally, remarrying while still married to another person invalidates the second
marriage, but the entry of a divorce judgment nunc pro tunc will validate the second marriage.
Vioglavich, 113 Mich. App. at 384. In this case, the trial court did not abuse its discretion when it
entered the judgment of divorce nunc pro tunc. Defendant conducted herself as divorced as of
December 2009 by filing tax returns in single status or in married status when she remarried in
2012 and in 2014. 3 These marriages would not be valid if the trial court’s entry of the judgment
of divorce were not nunc pro tunc, and defendant would be guilty of the felony of bigamy, see
MCL 750.439. Therefore, the trial did not abuse its discretion when it entered the divorce
judgment nunc pro tunc.
Affirmed.
/s/ Peter D. O’Connell
/s/ Jane M. Beckering
/s/ Cynthia Diane Stephens
3
Defendant first remarriage commenced on March 19, 2012 and ended on, and she remarried
again on July 1, 2014.
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