20230202_C356644_61_356644.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANDRE ZANAHIN OULAI, UNPUBLISHED
February 2, 2023
Plaintiff-Appellee,
v Nos. 356644; 358385
Kalamazoo Circuit Court
ANNE-MARIE GUIDY-OULAI, LC No. 2016-006940-DO
Defendant-Appellant.
Before: SHAPIRO, P.J., and GADOLA and YATES, JJ.
PER CURIAM.
In these consolidated appeals,1 defendant appeals by delayed leave granted the trial court’s
Order Regarding Spousal Support, challenging the trial court’s reduction of the award of spousal
support on reconsideration. Defendant appeals as of right the same order of the trial court denying
her request for attorney fees. We vacate the trial court’s order and remand for proceedings
consistent with this opinion.
I. FACTS
The parties married in 1995, and have one adult son. Plaintiff is an orthopedic surgeon
who currently earns an annual salary of approximately $589,000. Defendant has a doctorate in
information systems and teaches at Western Michigan University, earning approximately $83,000
annually. The parties are both in their early 60s. During the marriage, the family’s home was in
Kalamazoo, but at times during the marriage plaintiff worked in different locations, while
defendant stayed in the marital home in Kalamazoo with their son.
In 2016, plaintiff filed for divorce. During the course of mediation, plaintiff—who had
previously been earning $650,000 annually—indicated that he was no longer employed. The
1
Oulai v Guidy-Oulai, unpublished order of the Court of Appeals, entered January 20, 2022
(Docket No. 358385).
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parties signed a settlement agreement in November 2017. Under the settlement agreement,
defendant received the marital home in Kalamazoo and a BMW; plaintiff received a house and
additional real property in the Ivory Coast, and several vehicles, including a Hummer, Porsche,
Dodge Charger, BMW, and a Slingshot motorcycle. The parties divided several bank accounts,
retirement accounts, and life insurance.2 The parties’ debt included several credit cards, plaintiff’s
student loans, an “Advia Signature Loan,” two judgments, college expenses for the parties’ son,
and taxes owed to the IRS for several years. Plaintiff received $224,683 in total assets and
defendant received $251,663, while plaintiff assumed $298,085 in debt and defendant assumed
$180,667 in debt. The settlement agreement forever barred spousal support for plaintiff while
reserving the issue of spousal support for defendant, pending plaintiff’s reemployment. In
February 2018, the trial court entered a divorce judgment incorporating the terms of the settlement
agreement. The divorce judgment reserved the issue of spousal support pending plaintiff’s
reemployment, and required plaintiff to notify defendant when he obtained employment.
In November 2019, defendant moved to enforce the divorce judgment and for spousal
support, asserting that plaintiff obtained employment in September 2018 and as of June 2019 was
earning an annual salary of $589,503. Defendant also sought approximately $5,000 in attorney
fees under MCR 3.206(D)(2)(a) and (b), contending that plaintiff failed to disclose this information
to her and that she learned about it by hiring a private investigator and incurring attorney fees to
subpoena plaintiff to obtain information about his employment.
At the evidentiary hearing, plaintiff testified that the parties’ marriage effectively ended
years before he filed for divorce because defendant refused to join him when he moved for a job.
Plaintiff testified that he thereafter began having affairs with other women, though he continued
to regularly return to the marital home in Kalamazoo, and defendant and the parties’ son regularly
visited plaintiff. Plaintiff also testified that during the latter part of the marriage he did not fully
share his salary with defendant and instead paid only certain household expenses, such as the
mortgage and utilities, and maintained that he therefore should not be required to share his salary
with defendant upon divorce.
In contrast, defendant described a 23-year marriage during which she cared for the parties’
son and, at times, put her own career “on hold” for the marriage. For many years, defendant was
a stay-at-home mother, and the family moved several times for plaintiff’s work. Later, defendant
earned her Ph.D., and in 2010, she began teaching full time at Western Michigan University.
Defendant denied that the couple’s marriage was “over” before the divorce, and testified that she
and plaintiff continued as husband and wife until the divorce, even during those times when
plaintiff worked in locations other than Kalamazoo, and that plaintiff paid all expenses during the
marriage. The parties submitted budgets, with plaintiff claiming monthly expenses of $14,564
compared to defendant’s monthly expenses of $11,447.
Following the hearing, the trial court addressed the spousal support factors and concluded
that spousal support was warranted for defendant. The trial court awarded defendant spousal
2
The bank accounts totaled less than $60,000, and the retirement accounts totaled less than
$55,000.
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support of $6,000 per month for seven years, but denied defendant’s request for attorney fees.
Plaintiff moved for reconsideration of the spousal support award. On reconsideration, the trial
court concluded that it erred in its evaluation of the spousal support factors, specifically with regard
to Factor 4 and Factor 10, and reduced the amount of spousal support to $2,000 per month for six
years. Defendant now appeals.
II. DISCUSSION
A. SPOUSAL SUPPORT
In Docket No. 358385, defendant contends that the trial court erred by, upon
reconsideration, reducing the spousal support award from $6,000 per month for seven years to
$2,000 per month for six years. Defendant argues that the reduced award is inequitable because
it fails to account for the significant disparity in the parties’ incomes and the nonliquid nature of
the assets she received, and thus unfairly allows only plaintiff to live a lavish lifestyle. Defendant
argues that the trial court failed to properly consider the interdependence of the property award
and spousal support under the settlement agreement.
We review a trial court’s spousal support award for an abuse of discretion, which occurs
when the trial court’s decision falls outside the range of reasonable and principled outcomes.
Loutts v Loutts, 298 Mich App 21, 25-26; 826 NW2d 152 (2012). We review for clear error the
trial court’s findings of fact relating to an award of spousal support. Id. at 26. A finding is clearly
erroneous if upon review of the record we are left with a definite and firm belief that the trial court
made a mistake. Lueck v Lueck, 328 Mich App 399, 404; 937 NW2d 729 (2019). If the trial
court’s findings are not clearly erroneous, we determine whether the dispositional ruling was fair
and equitable in light of the facts. Smith v Smith, 328 Mich App 279, 286; 936 NW2d 716 (2019).
A trial court’s ruling must be affirmed unless we are convinced that it was inequitable. Loutts,
298 Mich App at 26. We also review for an abuse of discretion a trial court’s decision on a motion
for reconsideration. Farm Bureau Ins Co v TNT Equip, Inc, 328 Mich App 667, 672; 939 NW2d
738 (2019).
Spousal support is governed by MCL 552.23(1), which provides for a case-by-case
analysis. Loutts, 298 Mich App at 29. The decision to award spousal support is within the trial
court’s discretion and should reflect what is just and reasonable under the circumstances of that
specific case. Id. at 30. “The object in awarding spousal support is to balance the incomes and
needs of the parties so that neither will be impoverished.” Id. at 26 (quotation marks and citation
omitted). Although spousal support is not determined by a strict formula, id. at 30, factors to be
considered include:
(1) the past relations and conduct of the parties, (2) the length of the marriage,
(3) the abilities of the parties to work, (4) the source and amount of property
awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay
alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the
parties’ health, (10) the prior standard of living of the parties and whether either is
responsible for the support of others, (11) contributions of the parties to the joint
estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
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a party’s financial status, and (14) general principles of equity. [Id. at 31 (quotation
marks and citation omitted).]
In this case, following the evidentiary hearing the trial court provided a well-reasoned
discussion of these factors and awarded defendant spousal support of $6,000 per month for seven
years. The trial court observed that the marriage spanned almost 23 years and rejected plaintiff’s
contention that the marriage functionally ended before the parties’ divorce. The trial court
recognized both parties’ contributions to the marriage, including defendant’s primary
responsibility for raising the parties’ child, that both parties are in their early 60s with no significant
health problems, that both parties work, that plaintiff earns $589,000 each year compared to
defendant’s $83,000 annual salary, and that both contributed to the marital estate. The trial court
noted that the parties’ asset distribution in the property settlement was essentially equal, but that
defendant was “low on liquidity,” while in comparison, plaintiff had an annual salary of $589,000.
The trial court also observed that the parties had been able to afford a lavish lifestyle and that both
parties were accustomed to that lifestyle. Despite plaintiff’s repeated infidelity, the trial court did
not ascribe fault to either party in the breakdown of the marriage, but rejected plaintiff’s assertion
that defendant did not merit spousal support. Analyzing all the circumstances, the trial court
awarded defendant $6,000 each month for seven years, noting that the award was only 14 percent
of plaintiff’s take-home pay and that seven years was less than one-third of the duration of the
marriage.
Upon reconsideration, however, the trial court found palpable error in its conclusions
regarding Factor 4 (the source and amount of property awarded to the parties) and Factor 10 (the
prior standard of living of the parties). Regarding Factor 4, the trial court determined that its
previous conclusion—that the property division had been roughly equal—was incorrect
considering the parties’ debt. The trial court determined that defendant received approximately
$70,000 in net assets while plaintiff’s net portion was a negative share of approximately $70,000
in debt, with the result that defendant essentially received approximately $140,000 more than
plaintiff from the marital estate. Regarding Factor 10, the trial court reevaluated the parties’
standard of living and concluded that for much of the marriage plaintiff did not share his substantial
salary with defendant. The trial court reasoned that defendant’s historical standard of living,
therefore, did not include a share in plaintiff’s substantial salary and reduced the amount of spousal
support to $2,000 per month for six years.
Considering all the circumstances, the reduced spousal support award in this case is
inequitable. Leaving the trial court’s factual findings undisturbed,3 we nevertheless conclude that
when determining the spousal support, the trial court gave the distribution of debt and assets
disproportionate weight, resulting in an inequitable spousal support award. See Hanaway v
Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995). Defendant does not have liquid assets
at her disposal, and the property she received is not income-producing. The major asset she
received is the marital home where she lives, she has a mortgage and home equity line of credit on
the home, she earns approximately $83,000 annually, and she has debt of $180,667 arising from
the marriage. In comparison, plaintiff enjoys a substantial earning capacity, with a current base
3
The parties do not challenge the accuracy of the trial court’s calculations.
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salary of $589,000. Although defendant received more from the marital estate in the division of
assets and debt, the division of assets and debt must be considered in light of the parties’ earning
capabilities and the other circumstances of this case. See Magee v Magee, 218 Mich App 158,
162-164; 553 NW2d 363 (1996).
In deciding the motion for reconsideration, the trial court failed to properly consider the
parties’ significantly disparate incomes and the nonliquid, non-income-producing nature of the
assets awarded to defendant. See Gates v Gates, 256 Mich App 420, 437; 664 NW2d 231 (2003)
(finding spousal support inadequate when “in fashioning its spousal support award, the trial court
placed inordinate weight on the value of property awarded to defendant, and insufficient weight
on the disparate incomes of the parties and the fact that the income-earning potential of the assets
awarded to defendant was insufficient to offset this disparity”). Considering plaintiff’s substantial
annual salary compared to defendant’s relatively modest annual salary, the property received by
defendant is not substantial, and the debt assumed by plaintiff, although relevant, is not dispositive
in this case. Plaintiff assumed more debt, but given the parties’ widely disparate incomes and the
nonliquid, non-income-producing nature of the assets received by defendant, the debt assumed by
defendant poses a substantially greater hardship than the debt plaintiff assumed, and the assets she
received are of little help in meeting her needs. Cf. Magee, 218 Mich App at 163-164 (concluding
that marital assets which produced no income did not offset the great disparity in the parties’
respective monthly incomes or eliminate the need for cash flow to meet expenses). Although
defendant received a “positive” overall property award, the $70,000 property award is not
sufficient to meet the current or future needs of someone nearing retirement age. Particularly given
plaintiff’s substantial income, defendant should not be made to invade these relatively modest
assets to support herself. See Hanaway, 208 Mich App at 296.
In sum, defendant’s property award as compared to plaintiff’s assumption of debt was far
from sufficient to offset the vast disparity in the parties’ respective incomes.4 See Gates, 256 Mich
App at 437. In focusing disproportionately on the distribution of debts and assets when ruling on
plaintiff’s motion for reconsideration, the trial court failed to appropriately balance the incomes
and needs of the parties, and the result was a spousal support award that was not just and reasonable
under the circumstances. See Magee, 218 Mich App at 163-164.
Regarding Factor 10, the trial court on reconsideration appeared to conclude that defendant
should be assigned a lesser standard of living than plaintiff because plaintiff did not fully share his
substantial salary with defendant during the marriage. Plaintiff testified that toward the end of the
4
A review of the numbers in this case supports that the trial court gave the debt and asset division
disproportionate weight in light of the parties’ widely disparate incomes and the nonliquid nature
of defendant’s assets. The trial court originally awarded defendant spousal support for seven years
at $6,000 a month, totaling $504,000 over seven years, which is less than plaintiff earns in one
year. Following plaintiff’s motion for reconsideration, the trial court concluded that there was an
approximately $140,000 difference in the net property awards that the parties received, and
therefore reduced defendant’s award of spousal support to $2,000 a month for six years, for a total
of $144,000 over six years. In other words, the trial court drastically reduced defendant’s spousal
support by $360,000 to compensate plaintiff for the $140,000 difference in the property award.
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parties’ marriage he paid the mortgage and utilities on the marital home but otherwise did not share
his income with defendant. Plaintiff appears to argue, and the trial court appeared to agree, that
plaintiff’s failure fully to share his income with his wife during the marriage means that she did
not enjoy his standard of living, and that spousal support should be established in an amount to
maintain their disparate standards of living going forward. We find this reasoning troubling and
not in accordance with the principles of equity that govern a divorce action.
Spousal support Factor 10 considers “the prior standard of living of the parties and whether
either is responsible for the support of others.” Berger v Berger, 277 Mich App 700, 726; 747
NW2d 336 (2008). The focus is on the parties’ standard of living during the marriage, and the
parties’ income can be used as an indicator of the nature of this lifestyle. See Hanaway, 208 Mich
App at 296 & n 10. The idea of a communal or marital standard of living is consistent with the
basic principle that income earned by one spouse during the marriage is presumed to be marital
property, see Cunningham v Cunningham, 289 Mich App 195, 201; 795 NW2d 826 (2010), and
acknowledges that marriage is akin to a partnership in which both parties contribute and both are
entitled to share in the benefits of their labor. See Hanaway, 208 Mich App at 294. The result is
a commensurate standard of living between the spouses, and it is this communal standard of living
during marriage that generally should be considered when addressing spousal support. Following
divorce, particularly with the added expense of separate households, there is no guarantee that
parties will be able to fully maintain their previous standard of living, but any reduction in the
parties’ standard of living should be shared equitably. See Loutts, 298 Mich App at 26 (“[T]he
object in awarding spousal support is to balance the incomes and needs of the parties so that neither
will be impoverished.”); 27B CJS Divorce § 613 (“Permanent support may be appropriate to
equalize the standard of living or equitably share the overall reduction in the parties’ separate
standards of living.”).
We conclude that the trial court erred by ascribing to defendant a lesser standard of living
during the marriage because plaintiff spent more lavishly on himself. Plaintiff does not identify
authority to support the theory that defendant should be ascribed a lower standard of living than
plaintiff during the marriage because plaintiff consumed more of the marital resources. Such an
assertion is contrary to the duty of support that spouses owe each other during marriage, contrary
to the principles of equity that govern a divorce action, and would reward a spouse who consumed
the greater share of the marital resources.5 Here, the parties’ considerable incomes supported them
in an affluent lifestyle during the marriage, and it is this affluent lifestyle that should be considered
for purposes of Factor 10. Cf. Hanaway, 208 Mich App at 296 & n 10.
In sum, the reduced spousal support award in this case was not fair and equitable in light
of all the circumstances. See Loutts, 298 Mich App at 30. The parties had a long-term marriage
of 23 years, during which defendant contributed to the marital estate, and she is entitled to share
5
Arguably, plaintiff’s enjoyment of a more lavish lifestyle during the marriage is an equitable
consideration favoring defendant, because plaintiff could be said to have excessively depleted the
marital estate to which defendant had contributed. See Cassidy v Cassidy, 318 Mich App 463,
471-473; 899 NW2d 65 (2017) (affirming spousal support award when trial court considered,
among other things, the husband’s misuse of marital funds during the marriage).
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equitably in the fruits of their labors. Defendant is in her early 60s, and although she earns a
respectable salary, she is unlikely to approach plaintiff’s substantial earning capacity. The assets
she received are nonliquid and of little help in meeting her needs. The trial court erred in assessing
defendant as having a lower standard of living because plaintiff spent more lavishly on himself
during the marriage.
Although defendant asks this Court to reinstate the prior $6,000 monthly spousal support
award, we conclude that the appropriate course is to remand to the trial court to determine the
spousal support award in the first instance. See Gates, 256 Mich App at 437; Magee, 218 Mich
App at 164. On remand, the trial court should consider all the parties’ circumstances, including
the parties’ respective needs, the length of the marriage, their historical standard of living, the vast
disparity in their incomes, and the nonliquid, nonincome-producing nature of the assets received
by defendant.
B. ATTORNEY FEES
In Docket No. 356644, defendant contends that the trial court erred by denying her request
for approximately $5,000 in attorney fees under MCR 3.206(D)(2)(a) and (b). She argues that the
parties’ income disparity establishes that she is unable to pay the attorney fees and that plaintiff is
able to pay the fees. She also argues that attorney fees are warranted because plaintiff violated the
divorce judgment by failing to inform her of his employment, causing her to incur the attorney
fees and expenses. We review a trial court’s decision to grant or deny attorney fees in a divorce
action for an abuse of discretion. Cassidy, 318 Mich App at 479.
In Michigan, attorney fees are not recoverable unless expressly allowed by statute, court
rule, common-law exception, or contract. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825,
845 (2005). Attorney fees are not recoverable as of right in a divorce action, id., but may be
awarded under MCR 3.206(D), which states:
(1) A party may, 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 a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts
sufficient to show that:
(a) the party is unable to bear the expense of the action, including the
expense of engaging in discovery appropriate for the matter, and that the other party
is able to pay, or
(b) the attorney fees and expenses were incurred because the other party
refused to comply with a previous court order, despite having the ability to comply,
or engaged in discovery practices in violation of these rules.
MCR 3.206(D)(2)(a) allows payment of attorney fees based on one party’s inability to pay
and the other party’s ability to do so. By contrast, MCR 3.206(D)(2)(b) involves consideration of
“a party’s bad behavior.” Cassidy, 318 Mich App at 481. Under this provision, attorney fees and
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expenses may be awarded when the fees were incurred because the other party refused to comply
with a previous court order, despite having the ability to comply. MCR 3.206(D)(2)(b). When
considering whether to award attorney fees on the basis that a party violated a court order, the trial
court should determine whether a party violated a court order, whether this misconduct caused the
other party to incur fees, and whether those fees were reasonable. See Reed, 265 Mich App at 165-
166.
Here, the divorce judgment reserved the question of spousal support pending plaintiff’s
reemployment, and required plaintiff to inform defendant’s attorney when he obtained
employment, stating that “Plaintiff shall provide proof of employment to Defendant’s counsel
within 7 days of securing any position pursuant to the terms of the Settlement Agreement.” In
seeking attorney fees under MCR 3.206(D)(2)(b), defendant presented evidence that plaintiff
failed to provide timely notice of his employment to defendant’s attorney. Defendant also
presented evidence that she incurred attorney fees and expenses as a result of plaintiff’s violation
of the divorce judgment because she had to hire a private detective and an attorney to establish
plaintiff’s employment.
The trial court failed to address whether plaintiff violated the divorce judgment and
whether defendant should be allowed to recover the attorney fees and other expenses she incurred
attempting to ascertain plaintiff’s employment information. When denying defendant’s request
for attorney fees, the trial court reasoned that attorney fees were unwarranted because the issue of
spousal support had been “reserved” in the divorce judgment and plaintiff had the “right to go to
court.” The trial court’s point appears to be that defendant would have incurred attorney fees for
the evidentiary hearing, regardless of plaintiff’s conduct, because the divorce judgment provided
for mediation and a hearing on spousal support. The trial court ignored, however, the salient fact
that the divorce judgment required plaintiff to report his employment to defendant’s attorney
within seven days, meaning that—evidentiary hearing or not—defendant should not have had to
incur expenses by hiring a private detective or subpoenaing plaintiff to ascertain his employment
information. We therefore remand to the trial court for reconsideration of defendant’s request for
attorney fees under MCR 3.206(D)(2)(b). The trial court should consider whether plaintiff in fact
violated the divorce judgment by failing to provide the required notice of employment and
whether, as a result of that violation, defendant incurred compensable attorney fees and expenses.
Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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