Riemer v. Johnson , 311 Mich. App. 632 ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
ANDREW RIEMER, FOR PUBLICATION
August 18, 2015
Plaintiff-Appellant-Cross-Appellee, 9:20 a.m.
v No. 321057
Manistee Circuit Court
CHRISTA JOHNSON, LC No. 11-014312-DC
Defendant-Appellee-Cross-
Appellant.
Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.
WILDER, P.J..
Plaintiff-appellant-cross-appellee, Andrew Riemer, appeals as of right the trial court’s
judgment in this custody proceeding and challenges its determinations regarding custody,
parenting time, child support, and attorney fees. Defendant-appellee-cross-appellant, Christa
Johnson, cross appeals. We affirm.
I
The trial court set forth the following relevant facts in its opinion:
The parties are the parents of [ARJ], born April 1, 2011, and were never
married.
Plaintiff/Father is Dr. Andrew Riemer . . . who is 52 years old. He is an
ophthalmologist who owns his own practice, Riemer Eye Care, with four
locations. [Plaintiff] lives in Ludington, Michigan, on Hamlin Lake. He was
previously married to Lori Riemer, from whom he was divorced in 2004.
[Plaintiff] and Lori Riemer have six children who are now all adults.
Defendant/Mother is Dr. Crista [sic] Johnson . . . who is 41 years old. She
is a chiropractor who shares ownership in her own practice, Zeller & Johnson, in
Manistee. [Defendant] lives in Manistee, Michigan. She was previously married
to Eric Ross, from whom she was divorced in 2007. They had no children.
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Plaintiff and Defendant started dating in late 2007 or early 2008.
[Defendant] became pregnant three times during her relationship with [plaintiff].
The first pregnancy was in May 2009, which resulted in a miscarriage.
During the time of the relationship between [plaintiff and defendant,
plaintiff] fathered a child with Sara Zingery. The child, [AR], was born on July
16, 2009. [Plaintiff] and Ms. Zingery were not married. Legal proceedings as to
custody ensued with [plaintiff] and Ms. Zingery agreeing on shared custody of the
child, [AR], with the actual sharing of time on a 50/50 basis commencing in the
summer of 2013.
Subsequent to the birth of [AR], the relationship continued between
[plaintiff] and [defendant] with a second pregnancy occurring, followed by a
miscarriage. [Defendant]’s third pregnancy with [plaintiff] occurred thereafter
with the child, [ARJ], born on April 1, 2011.[1] An Acknowledgement of
Parentage was signed, and [plaintiff]’s name appears as the father on the birth
certificate.
[Plaintiff] and [defendant] were unable to agree on long-term custody
and/or parenting time arrangements, and the custody suit was brought forth by
[plaintiff]. Ultimately, the parties’ relationship continued to deteriorate with
neither marriage occurring nor continuation of their romantic relationship.
The trial court found that the parties’ relationship continued to deteriorate after AJR’s
birth. The trial court found that defendant initially allowed plaintiff parenting time on her own
terms and predominately at her home. But after plaintiff was seen with AR in public, defendant
was upset and became even more restrictive with plaintiff’s parenting time. The parties engaged
in mediation resulting in parenting time for plaintiff every Tuesday and Thursday from 6:30 p.m.
to 10:00 p.m., and four to six hours every other Friday, Saturday, and Sunday. But then, on
September 1, 2011, plaintiff subsequently filed the instant action for custody and parenting time.
On February 9, 2012, the trial court entered a temporary order for the same parenting time
schedule obtained during mediation and required plaintiff to pay defendant $1,500 per month in
child support, effective November 8, 2011. The parties and trial court addressed whether the
temporary child support of $1,500 could be modified at the November 8, 2011 hearing.
Plaintiff’s attorney stated, “I think what the Court first proposed, 1500 ordered to continue until
replaced after a review by a different figure.” The trial court stated that “neither party is stuck
with” the temporary support figure.
While trial was ongoing, on June 18, 2013, the trial court entered another temporary
order changing plaintiff’s parenting time to every Tuesday and Thursday from 6:30 p.m. to 9:30
p.m., and every other weekend from Friday at 6:00 p.m. to Saturday at 6:00 p.m., and Sunday
1
The trial court found that, when defendant was dealing with pregnancy and despair from her
relationship with plaintiff, she struck her belly, screamed at AR, shook AR’s carseat, and kicked
plaintiff.
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from 2:30 p.m. to 8:30 p.m. The trial court also ordered plaintiff to pay defendant $3,000 per
month in child support. In its written order, the trial court ruled:
“[d]efendant’s request for retroactive application and mandatory child support
guideline applicability is reserved; the Court will address final child support
amounts or deviation therefrom, and resultant arrearages, if any, consistent with
this Court’s previous Order of November 8, 2011, when it issues its opinion/order
after conclusion of the present evidentiary hearing.”
Following approximately 19 days of trial, the trial court entered its January 31, 2014 opinion
regarding custody, parenting time, child support, and attorney fees. First, the trial court ruled
that ARJ has an established custodial environment with both parents. Then, it determined that
factors (a), (b), (e) were equal, factors (c), (j), (k), and (l) favored plaintiff, factor (d) favored
defendant, and factors (f), (g), (h), (i) favored neither party. The trial court ordered shared
physical custody with gradually increased parenting time for plaintiff “developed over time for a
smooth transition towards accomplishing a goal of approximately equal co-parenting time for
both parents.”2
The trial court ordered joint legal custody to plaintiff and defendant. Although it found
that defendant’s anger toward plaintiff regarding their relationship had previously reduced her
willingness to facilitate a close relationship between AJR and plaintiff, the parties nevertheless
had satisfactorily resolved important matters affecting the welfare of the child and it was in his
best interests for them to share decision-making authority.
In awarding child support, the trial court calculated plaintiff’s adjusted gross income as
$1,493,481, based on the average adjusted gross income from his tax returns in 2010, 2012, and
2013. The trial court calculated defendant’s adjusted gross income as $107,722, based on the
average adjusted gross income from her tax returns in 2010 and 2011, noting that in 2012, she
had voluntarily reduced her work schedule to care for AJR. From November 1, 2011, to June 15,
2012, the trial court ordered plaintiff to pay defendant $6,229 in child support. From June 15,
2012, to June 18, 2013, the trial court ordered plaintiff to pay defendant $6,807 in child support.
From June 18, 2013, to January 31, 2014, the trial court ordered plaintiff to pay defendant $6,804
in child support. From January 31, 2014, to April 1, 2015, the trial court ordered plaintiff to pay
defendant $6,204 in child support. From April 1, 2015, to June 1, 2017, the trial court ordered
plaintiff to pay defendant $4,511 in child support. After June 1, 2017, the trial court ordered
plaintiff to pay defendant $3,012 in child support. The trial court noted that it had intended the
temporary orders for child support from February 9, 2012, and June 18, 2013, to be “modifiable
2
From the date of the January 31, 2014 opinion to April 1, 2015, a two-week parenting time
schedule awarded plaintiff overnight parenting time on Tuesdays and Thursdays during one
week and five hours on Tuesdays and overnight parenting time on Fridays and Saturdays the
following week. From April 1, 2015, to June 1, 2017, a two-week parenting time schedule
awarded plaintiff overnight parenting time on Tuesdays, Wednesdays, and Thursdays during one
week and overnight parenting time on Thursdays, Fridays, and Saturdays the following week.
After June 1, 2007, the parties were ordered to alternate custody of ARJ every Friday.
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retroactively back to the date of the filing of the motion for support because not all of the
information was available at the time.” It further noted its statement at the November 8, 2011
hearing that neither party would be “stuck with the support figure.”
Finally, the trial court ordered plaintiff to pay a portion of defendant’s attorney fees and
expenses for expert witnesses under MCR 3.206(C)(2)(a). The trial court ruled that defendant
could have been well represented by one attorney at $200 an hour for a total of $186,654 in
attorney fees and expert witnesses’ expenses of $41,050, for a total of $227,704 to defend the
action. From this total, the trial court created what it called a “war chest” of attorney fees and
expert costs—multiplying $227,704 by two for each party (totaling $455,408) and assigning
responsibility for the war chest based on the parties’ combined annual incomes—of which
defendant earns 6.7% and plaintiff earns 93.3%. The trial court ordered defendant to pay
$30,512 toward the war chest and plaintiff to pay the remaining $424,896 ($197,192 of which
would be contributed to defendant’s fees). In addition, the trial court ordered defendant to pay
any of her fees exceeding $200 an hour and the fees charged by her second attorney, noting that
either of defendant’s attorneys would have been competent to defend her case, alone.
II
The parties first challenge the trial court’s order regarding custody and parenting time.
In child custody disputes, “ ‘all orders and judgments of the circuit court shall be
affirmed on appeal unless the trial judge made findings of fact against the great weight of the
evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ ”
Dailey v Kloenhamer, 291 Mich. App. 660, 664; 811 NW2d 501 (2011), quoting MCL 722.28.
Accordingly, the trial court’s findings of fact are reviewed under the great weight of the evidence
standard, which precludes a reviewing court from substituting its judgment on questions of fact
unless they “clearly preponderate in the opposite direction.” Under this standard, a court “should
review the record in order to determine whether the verdict is so contrary to the great weight of
the evidence as to disclose an unwarranted finding, or whether the verdict is so plainly a
miscarriage of justice as to call for a new trial . . . .” Fletcher v Fletcher, 447 Mich. 871, 878;
526 NW2d 889 (1994). Discretionary rulings, including the ultimate award of custody, are
reviewed for an abuse of discretion. Id. “An abuse of discretion exists when the trial court’s
decision is palpably and grossly violative of fact and logic[.]” Dailey v Kloenhamer, 291 Mich
App 660, 664-65; 811 NW2d 501 (2011). Further, clear legal error occurs when the trial court
chooses, interprets, or applies the law incorrectly. Id. at 881.
Whether an established custodial environment exists is a question of fact to be
determined before the trial court makes any custody determination. Kessler v Kessler, 295 Mich
App 54, 61; 811 NW2d 39 (2011); Mogle v Scriver, 241 Mich. App. 192, 197; 614 NW2d 696
(2000). If an established custodial environment exists, as in this case with both parents, the trial
court must find clear and convincing evidence that a change in the established custodial
environment is in the child’s best interests. Kessler, 295 Mich. App. at 61.
In determining whether a change of custody is in the best interest of a child, the best-
interest factors set forth in MCL 722.23 are the appropriate measurement. LaFleche v Ybarra,
242 Mich. App. 692, 700; 619 NW2d 738 (2000). The trial court is required to consider and
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explicitly state its findings and conclusions regarding each best interest factor. Id. The best-
interest factors set forth in MCL 722.23 are:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home
or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
A
On appeal, plaintiff first argues that the trial court’s findings regarding factors (b), (d),
(f), and (g) were against the great weight of the evidence. We disagree.
Factor (b) requires the trial court to consider the capacity and disposition of the parties
involved to give the child love, affection, and guidance, as well as the parties’ capacity and
disposition to educate and raise the child in his or her religion or creed, if any. MCL 722.23(b).
Contrary to plaintiff’s claim, there was evidence that both parties had the capacity and
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disposition to provide love, affection, and comfort to AJR. The trial court found both parties
were professionals with strong educational backgrounds and ties to their religion. The trial court
relied on the court-appointed evaluator, Dr. Frank Langer’s testimony that both parents were
capable of providing excellent care for AJR even though some of their psychological testing
results suggested risk factors for both parents regarding attachment, for defendant regarding
anger management, and for plaintiff regarding maintaining close relationships. The trial court
acknowledged plaintiff’s experience raising six successful adult children but also found that,
although defendant has only parented AJR, she has done so in a kind, loving, and nurturing
manner. Although plaintiff claims that, in considering defendant’s ability to give AJR love,
affection, and guidance, the trial court did not give adequate weight to defendant’s behavior
during her pregnancy and instances of dishonesty, plaintiff has not demonstrated that the trial
court’s finding that defendant had nevertheless been kind, loving, and nurturing subsequent to
AJR’s birth clearly preponderates in the opposite direction.
Factor (d) requires the trial court to consider the length of time the child has lived in a
stable, satisfactory environment, and the desirability of maintaining continuity. Here, the trial
court found that, although both parents provide a safe, comfortable, secure, and loving
environment, AJR had lived with defendant for quantitatively more time than with plaintiff.
Plaintiff claims on appeal that, because defendant limited his time with AJR because of the
breakdown in the parties’ relationship, the trial court’s finding that defendant promoted a stable
environment was against the great weight of the evidence. The record is clear that defendant was
initially restrictive with plaintiff’s parenting time, but the record also demonstrates that
defendant followed the trial court’s temporary orders regarding parenting time and resolved
important decisions affecting AJR’s welfare with plaintiff. Moreover, the trial court found that,
during her time with AJR, defendant demonstrated appropriate, one-on-one caretaking. Plaintiff
has not demonstrated that the trial court’s findings clearly preponderate in the opposite direction.
Factor (f) requires the trial court to consider the moral fitness of the parties involved.
Plaintiff claims the trial court should not have found that defendant’s behaviors, including
violence during her pregnancy, restrictiveness with parenting time due to jealousy of Zingery and
AR, and dishonesty, “did not appear to be a continuation of an element of a shortcoming of
moral fitness as to her interaction with or raising of the child.” As plaintiff notes, defendant was
in counseling to address her anger issues related to plaintiff. Dr. Barbara Edwards did not expect
defendant to behave similarly in the future with anyone else. Therefore, the trial court’s finding
that defendant’s behaviors were “situational,” or related directly to her despair regarding the
demise of her relationship with plaintiff and her pregnancy, did not clearly preponderate in the
opposite direction. Moreover, there is evidence in the record that both parties were dishonest on
occasion. Therefore, we cannot substitute our judgment regarding the moral fitness of the parties
for that of the trial court.
Factor (g) requires the trial court to consider the mental and physical health of the parties
involved. The trial court found that plaintiff and defendant were both in good physical health.
Again, the trial court relied on Langer’s testimony that both parents were capable of providing
excellent care for AJR even though some of their psychological testing results suggested
“psychological difficulties.” Moreover, despite defendant’s “previous difficulty with anger
management,” the trial court relied on Edwards’ testimony that defendant was mentally healthy
at the time of trial. Edwards credited the change in defendant’s mental health to her realization
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that her relationship with plaintiff could not function.3 Therefore, the trial court’s conclusion
that any mental instability defendant had previously demonstrated was specifically attributable to
either her relationship with plaintiff or her pregnancy, and did not reflect her current mental
health, did not clearly preponderate in the opposite direction.
Plaintiff has not demonstrated that any of the trial court’s findings regarding the best
interest factors were against the great weight of the evidence. Even though the trial court found
four of the factors weighed in plaintiff’s favor and only one factor weighed in defendant’s favor,
plaintiff has not established that the award of shared physical custody was an abuse of discretion.
The “trial court need not make its custody determination on the basis of a mathematical
calculation and may assign differing weights to the various best-interest factors.” Berger v
Berger, 277 Mich. App. 700, 712; 747 NW2d 336 (2008).
B
Both parties challenge the trial court’s order regarding parenting time, which gradually
adjusted parenting time over the course of approximately three and one-half years and ultimately
resulted in equal parenting time. MCL 722.27a(1) provides:
Parenting time shall be granted in accordance with the best interests of the child.
It is presumed to be in the best interests of a child for the child to have a strong
relationship with both of his or her parents. Except as otherwise provided in this
section, parenting time shall be granted to a parent in a frequency, duration, and
type reasonably calculated to promote a strong relationship between the child and
the parent granted parenting time.
Plaintiff challenges the parenting time order, claiming it was based on testimony from Langer
that overnights should only be added “when there’s a reasonable likelihood that they will be
positive experiences for AJR and not occasions of distress for mother.” Plaintiff claims that
parenting time should be granted in accordance with the best interests of the child, not on the
basis of one parent’s distress, and notes testimony from other experts at trial that criticized
Langer’s opinion focusing on defendant’s distress. The trial court acknowledged the critique of
Langer’s opinion and, contrary to plaintiff’s claim on appeal, did not rely on it when imposing a
gradual adjustment to the parenting time schedule. Rather, the trial court explained the purpose
of the gradual adjustment was to allow a “smooth transition” to equal parenting time. The expert
testimony at trial—that it is easier on a child emotionally and cognitively to increase parenting
time gradually—supported the trial court’s conclusion. As Dr. Pamela Ludolph testified:
[Y]ou wouldn’t want to change [a child] from one custodial arrangement to a
custodial arrangement that’s entirely different from whatever that first one was,
3
Although plaintiff points to some testimony from Edwards suggesting she was not aware of all
of the interactions defendant had with plaintiff’s children in their attempts to integrate her with
his older children, there is no testimony in the record that Edwards’ opinion regarding
defendant’s overall mental health at the time of trial changed on the basis of these interactions.
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even if the second arrangement was very good in the long run. You would want
to do it more slowly so he could ease into it.
Defendant claims that each change to the parenting time schedule ordered to occur after
the date of the trial court’s January 31, 2014 opinion could not be implemented without proper
cause or a change of circumstances demonstrated at a hearing held at the time of the change
under MCL 722.27(1)(c), which provides, in relevant part:
(1) If a child custody dispute has been submitted to the circuit court as an original
action under this act or has arisen incidentally from another action in the circuit
court or an order or judgment of the circuit court, for the best interests of the child
the court may do 1 or more of the following:
***
(c) Modify or amend its previous judgments or orders for proper cause shown or
because of change of circumstances . . . The court shall not modify or amend its
previous judgments or orders or issue a new order so as to change the established
custodial environment of a child unless there is presented clear and convincing
evidence that it is in the best interest of the child. The custodial environment of a
child is established if over an appreciable time the child naturally looks to the
custodian in that environment for guidance, discipline, the necessities of life, and
parental comfort. The age of the child, the physical environment, and the
inclination of the custodian and the child as to permanency of the relationship
shall also be considered.
But defendant’s reliance on MCL 722.27(1)(c) is misplaced because the gradual changes to the
parenting time schedule are contemplated in the January 31, 2014 opinion and they do not
“[m]odify or amend” that opinion. Defendant cites no authority for the proposition that the full
effect of the parenting time order was required to be implemented immediately. Accordingly, we
conclude that the trial court’s parenting time schedule was not grossly violative of fact or logic.4
C
Defendant argues that the trial court abused its discretion by allowing Dr. Warren Farrell
to testify as an expert in father-child relationships in cases of divorce and non-intact families.
4
We reject defendant’s claim that the fact that AJR will grow older during the period of time that
the gradual changes to the parenting time schedule take effect amounts to a change of
circumstances warranting a hearing with every gradual change. Aging is a normal life change
and cannot, by itself, constitute “proper cause” and “change of circumstances” under MCL
722.27(1)(c). Otherwise, as every child grew older, there would be proper cause or a change of
circumstances to modify a previous parenting time order. Vodvarka v Grasmeyer, 259 Mich. App.
499; 675 NW2d 847 (2003) (normal changes that occur during the life of a child are not
sufficient changes of circumstances to modify a custody order).
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She claims that Farrell was unqualified to testify under MRE 702 and Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993) because of his
background in political science (as opposed to psychology) and she argues that his testimony was
unreliable because there was no evidence that his literature review in studies regarding father-
child relationships had been peer reviewed, was accepted in the scientific community, or had a
known rate of error. But we conclude that, even if the trial court admitted the expert testimony
in violation of MRE 702 and Daubert, any error was harmless. See Lewis v LeGrow, 258 Mich
App 175, 199; 670 NW2d 675 (2003) (“A trial court error in admitting or excluding evidence
will not merit reversal unless a substantial right of a party is affected . . . and it affirmatively
appears that failure to grant relief is inconsistent with substantial justice . . . .”); MCR 2.613(A).
Although there was disagreement among the experts at trial regarding Farrell’s qualifications and
methodology, in its opinion, the trial court only cited Farrell’s opinion that fathers have
“significant importance” in the lives of children. There was no dispute in the record about that
opinion, even by defendant’s own expert (Ludolph), who testified that “there are notable positive
effects that fathers have on their children and . . . they should be involved in their children’s lives
in a very real way.” Ludolph testified, “[I]t’s useful to have a good relationship with both
parents if you’re a baby . . . .” Ludolph further testified that she agreed with Farrell that children
need involvement of both parents and that both parents can serve as an attachment figure with
“two, complimentary and necessary functions.” She also agreed that each parent needs
“substantial parenting time” to foster good relationship. In light of the abundance of testimony
regarding the significance of fathers in the lives of children, defendant has not proved that the
admission of Farrell’s testimony on this point was inconsistent with substantial justice.
III
Next, on appeal, defendant argues that the trial court miscalculated the amount of child
support required under the Michigan Child Support Formula (MCSF), while plaintiff argues that
the trial court should have deviated downward from the formula and that the trial court
improperly modified its first temporary child support order retroactively. We disagree.
“Generally, this Court reviews child support orders and orders modifying support for an
abuse of discretion. Whether the trial court properly acted within the child support guidelines is
a question of law that this Court reviews de novo. This Court also reviews questions of statutory
construction de novo.” Fisher v Fisher, 276 Mich. App. 424, 427; 741 NW2d 68 (2007).
“Finally, to the extent that the trial court made factual findings in determining the amount of
support under the child support formula, those findings are reviewed for clear error.” Borowsky
v Borowsky, 273 Mich. App. 666, 672; 733 NW2d 71 (2007).
“The formula shall be based upon the needs of the child and the actual resources of each
parent.” MCL 552.519(3)(a)(vi). A trial court must strictly comply with the requirements of the
formula in calculating the parents’ support obligations unless it “determines from the facts of the
case that application of the child support formula would be unjust or inappropriate . . . .” MCL
552.605(2). This Court, in turn, must ensure compliance with the plain language of the MCSF
Manual. Peterson v Peterson, 272 Mich. App. 511, 518, 727 NW2d 393 (2006), quoting
AFSCME v Detroit, 468 Mich. 388, 412; 662 NW2d 695 (2003) (‘ “We cannot read into the
statute what is not there.” ’).
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First, defendant claims that the trial court erred in calculating plaintiff’s income for
purposes of child support by excluding depreciation taken by plaintiff’s LLCs.
MCSF 2.01(E)(4) provides, in relevant part:
(e) Deductions for Taxes. For a variety of historical and policy reasons, the
government allows considerable deductions for business-related expenses before
taxes are calculated. Those same considerations are not relevant to monies a
parent has available for support. Therefore, some deductions should be considered
income for purposes of determining child support, unless they are consistent with
the nature of the business or occupation, including:
(i) Rent paid by the business to the parent.
(ii) Depreciation.
A parent’s income does not include depreciation figured at a straightline
(not accelerated) rate on a parent’s (not a corporation’s or partnership’s) tangible
personal property other than for vehicles or home offices. Any who use
accelerated depreciation for a parent’s tangible personal property other than for a
vehicle or a home office can claim a deduction for the straight-line amount if the
parent provides proof of what the straight-line amounts would have been.
(iii) Home office expenses, including rent, hazard insurance, utilities,
repairs, and maintenance.
(iv) Entertainment expenses spent by the parent. Legitimate expenses for
customer’s entertainment are allowable as deductions.
(v) Travel expense reimbursements, except where such expenses are
inherent in the nature of the business or occupation (e.g., a traveling salesperson),
and do not exceed the standard rates allowed by the state of Michigan for
employee travel.
(vi) Personal automobile repair and maintenance expenses.
Depreciation is one of the deductions that the MCSF expressly provides should be
included in a parent’s income even though it is excluded from income for tax purposes. But the
formula limits this inclusion in income by providing, “some deductions should be considered
income for purposes of determining child support, unless they are consistent with the nature of
the business or occupation.” Defendant has not demonstrated that the trial court’s finding that
“there is no indication the depreciation is not a legitimate reality to the nature of the business”
was clearly erroneous.5 Moreover, we reject defendant’s claim that deprecation is merely
5
Defendant claims that all depreciation is, by definition, used in a business and argues that,
under the trial court’s interpretation, depreciation could never be included in a parent’s income
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“theoretical” and should have been included in income to fully understand plaintiff’s actual
resources. See MCL 552.519(3)(a)(vi). Although an accountant testified at trial that
depreciation does not necessarily affect cash flow, it nevertheless affects a parent’s resources.
Random House Webster’s College Dictionary (2001) defines depreciation as “a decrease in value
due to wear and tear, decline in price, etc.” Here, the trial court found the decrease in value to
the business property, according to the Schedule Es, was $276,163 for 2010, $313,737 for 2011,
and $284,955 for 2012. The trial court did not err in calculating plaintiff’s income and excluding
depreciation taken by plaintiff’s LLCs because it was consistent with the nature of plaintiff’s
businesses.
Second, defendant claims that certain income deductions taken in plaintiff’s 2009 tax
return should have been considered when calculating plaintiff’s income for purposes of child
support. But to calculate child support, the trial court considered the average of plaintiff’s
income for 2010, 2012, and 2013. Defendant does not explain why income deductions plaintiff
took in 2009 are relevant to the average of the income plaintiff received between 2010 and 2013.
“It is not enough for an appellant in his brief simply to announce a position or assert an error and
then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.” People v Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291 (2001). Defendant’s
failure to properly address the merits of her assertion of error constitutes abandonment of the
issue. Houghton ex rel Johnson v Keller, 256 Mich. App. 336, 339-340; 662 NW2d 854 (2003).
Plaintiff argues that the trial court abused its discretion by failing to deviate downward
from the MCSF. We disagree.
MCL 552.605(2) provides:
(2) Except as otherwise provided in this section, the court shall order child
support in an amount determined by application of the child support formula
developed by the state friend of the court bureau as required in section 19 of the
friend of the court act, MCL 552.519. The court may enter an order that deviates
from the formula if the court determines from the facts of the case that application
of the child support formula would be unjust or inappropriate and sets forth in
writing or on the record all of the following:
(a) The child support amount determined by application of the child support
formula.
(b) How the child support order deviates from the child support formula.
and MCSF 2.01(E)(4)(ii) would be rendered nugatory. But it is not inconceivable that a parent
could claim a depreciation deduction on an income tax return for property used in a business that
is not actually consistent with the nature of the business or occupation. Such an inconsistency
would have to be established on the record, but as the trial court found, has not been established
here.
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(c) The value of property or other support awarded instead of the payment of child
support, if applicable.
(d) The reasons why application of the child support formula would be unjust or
inappropriate in the case.
Plaintiff claims the child support award provides more than an amount that is necessary
for AJR’s care and maintenance and constitutes de facto alimony for defendant. But our
Supreme Court has explained that the formula incorporates both a child’s needs and the
resources of the parents. Burba v Burba, 461 Mich. 637, 648; 610 NW2d 873 (2000). “Parents’
incomes are accounted for when child support levels are set because they are one of the factors
used in the formula, and the formula sets exact support levels on the basis of parents’ incomes,
including parents whose incomes are disparate.” Id.
MCSF 1.04(E) provides a list of situations that may cause strict application of the
formula to be unjust or inappropriate. The trial court found that MCSF 1.04(E)(17) (“A parent
provides a substantial amount of a child’s day-time care and directly contributes toward a
significantly greater share of the child’s costs than those reflected by the overnights used to
calculate the offset for parental time.”) applied, but would be de minimus. Plaintiff does not
challenge that finding as clearly erroneous on appeal. Rather, plaintiff challenges the trial
court’s finding that none of the other situations listed in MCSF 1.04(E) applied. Plaintiff claims
a downward deviation was warranted under MCSF 1.04(E)(9) (“A parent earns an income of a
magnitude not fully taken into consideration by the formula.”). But plaintiff’s reliance on MCSF
1.04(E)(9) is misplaced because he does not argue that his income was not fully taken into
consideration by the formula, as the plain language of the deviation factor requires. Instead,
plaintiff claims his income was fully taken into consideration by the formula and should not have
been because he earns so much. We cannot read into the MCSF Manual a deviation factor that is
not there. See Peterson, 272 Mich. App. at 518.6
Last, plaintiff argues that the trial court’s February 9, 2012 order, which required plaintiff
to pay child support of $1,500 effective November 8, 2011, was improperly modified
retroactively by the trial court’s January 31, 2014 opinion. Plaintiff relies on MCR 3.207(C)(4),
which provides, “A temporary order must state its effective date and whether its provisions may
be modified retroactively by a subsequent order.” In its January 31, 2014 opinion, the trial court
acknowledged that its written February 9, 2012 order “did not address retroactivity.” The trial
court nevertheless ruled that it was its intent, at that time, for any temporary orders to be
6
We note that plaintiff’s reliance on Kalter v Kalter, 155 Mich. App. 99, 104 (1986) and In re
Marriage of Patterson, 22 Kan App 2d 522; 920 P2d 450 (1996) is misplaced because these
cases are not binding precedent under MCR 7.215(J)(1) and A & E Parking v Detroit Metro
Wayne Co Airport Auth, 271 Mich. App. 641, 645; 723 NW2d 223 (2006). We also note that
defendant claims, by failing to include plaintiff’s depreciation allowance from his Schedule Es
and some of his 2009 deductions, the trial court effectively deviated from the MCSF and failed
to satisfy the written requirements of MCL 552.605(2)(a) through (d). But we concluded earlier
that defendant has not established that the trial court erred in calculating plaintiff’s income.
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modifiable retroactively. We conclude that, not only was it clear that the trial court intended
temporary orders to be modifiable retroactively, it was clear from the plaintiff counsel’s
statements at the November 8, 2011 hearing that this intention was understood. By recording its
intent regarding retroactivity in its written January 31, 2014 opinion, the trial court satisfied,
nunc pro tunc, the retroactivity requirement of MCR 3.207(C)(4). See Sleboede v Sleboede, 384
Mich. 555, 558-559; 184 NW2d 923 (1971) (“The function of such an order is to supply an
omission in the record of action previously taken by the court but not properly recorded.”).
IV
On appeal, both parties challenge the trial court’s award of attorney fees.7 Plaintiff
asserts some entitlement to attorney fees on the basis that defendant’s misconduct protracted the
proceedings and increased the costs of litigation. However, plaintiff did not file a motion
requesting attorney fees in the lower court. As such, any consideration whether plaintiff was
entitled to attorney fees on the basis of defendant’s conduct is unpreserved and we decline to
address it. See King v Michigan State Police Dept, 303 Mich. App. 162, 185; 841 NW2d 914
(2013).
Defendant argues that, after the trial court determined she was entitled to attorney fees
under MCR 3.206(C)(2)(a)8, the trial court erred when it failed to determine the amount of fees
to be awarded by following in detail the procedure outlined in Smith v Khouri, 481 Mich. 519,
530-531; 751 NW2d 472 (2008). We disagree. In Smith, the Supreme Court “review[ed] a trial
court's award of “reasonable” attorney fees as part of case-evaluation sanctions under MCR
2.403(O).” 481 Mich. at 522 (emphasis added). The Supreme Court noted that “[t]he purpose of
[MCR 2.403(O)] is to encourage the parties to seriously consider the evaluation and provide
financial penalties to the party that, as it develops, “should” have accepted but did not. Id. at
527-528. In contrast, as is apparent from the language of the court rule, the purposes for
awarding attorney fees under MCR 3.206(C)(2) are: 1) to assist a party who is unable to bear the
7
The parties’ challenges on appeal are limited to the award of attorney fees and they do not
challenge the award for experts’ expenses under MCR 3.206(C).
8
MCR 3.206(C) provides:
(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, 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.
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expense of the action, when it is also determined that the other party is able to pay the first
party’s fees; and 2) to reimburse a party for attorney fees incurred when that party has sought to
enforce an order which the other party is able, but fails, to comply with.9 Because the purposes
of an award of attorney fees under MCR 3.206(C)(2) have no relation to the purposes for
attorney fees awarded under MCR 2.403(O), we conclude that the trial court did not err in failing
to follow the detailed procedure set forth in Smith. See Univ Rehabilitation Alliance, Inc v Farm
Bureau Gen Ins Co of Mich, 279 Mich. App. 691, 700 n 3; 760 NW2d 574 (2008); FMB-First
Mich Bank v Bailey, 232 Mich. App. 711, 722-23; 591 NW2d 676 (1998).
In determining whether trial court’s award of attorney fees under MCR 3.206(C)(2) was
unreasonable, we review the trial court’s findings of fact for clear error, Solution Source, Inc v
LPR Associates Ltd Partnership, 252 Mich. App. 368, 381; 652 NW2d 474 (2002), and the
determination of the reasonableness of the fees for an abuse of discretion, Bolt v City of Lansing
(On Remand), 238 Mich. App. 37, 61; 604 NW2d 745 (1999). “A finding of fact is clearly
erroneous if the reviewing court has a definite and firm conviction that a mistake has been
committed, giving due regard to the trial court’s special opportunity to observe the witnesses.”
In re BZ, 264 Mich. App. 286, 296-297; 690 NW2d 505 (2004). A trial court does not abuse its
discretion when it chooses an outcome within the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006).
The trial court relied on MRPC 1.5(a) and the factors articulated in Wood v Detroit Auto
Inter-Ins Exch, 413 Mich. 573, 588; 321 NW2d 653 (1982), in determining the amount of
attorney fees to be awarded to defendant. MRPC 1.5(a) provides:
The factors to be considered in determining the reasonableness of a fee include
the following:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
9
As recently clarified by this Court in Richards v Richards, ___ Mich App ___, ___; ___ NW2d
___ (2015) (Docket No. 319753), slip op at 9, “MCR 3.206(C)(2) provides two independent
bases for awarding attorney fees and expenses.”
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(7) the experience, reputation, and ability of the lawyer or lawyers performing the
services; and
(8) whether the fee is fixed or contingent.
The six additional Wood factors are: “(1) the professional standing and experience of the
attorney; (2) the skill, time and labor involved; (3) the amount in question and the results
achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of
the professional relationship with the client.” Wood, 413 Mich. at 588 (quotation marks and
citation omitted).
In its opinion, the trial court first analyzed the MRPC 1.5(a) factors. Regarding factor
(1), the trial court found that the issues were limited to custody, parenting time, child support,
and attorney fee contribution. While the issues were not unusual and many competent attorneys
in the area could handle them, the trial court noted that the case was time-intensive—involving
19 days of trial, over 100 exhibits from each party, and several expert witnesses.
Regarding factor (2), the trial court found that, even though the case was time-
consuming, the attorneys for both parties—Eric Phelps and an associate for plaintiff, and Keldon
Scott and Mark Quinn for defendant—had active law practices and this case did not noticeably
preclude other employment.
Regarding factor (3), the trial court listed the mean hourly rate for attorneys in the circuit
($175), in Lansing (where Scott practices) ($221), and among family law practitioners in
Michigan ($199).
Regarding factor (4), the trial court found that while custody and child support are
important to the parties, this factor is better suited to evaluating the amount at issue and actually
awarded in a civil lawsuit seeking the recovery of damages.
Regarding factor (5), the trial court found that no time limitations were imposed in the
case.
Regarding factor (6), the trial court found that defendant and her attorney had no
relationship prior to the case.
Regarding factor (7), the trial court found that the parties’ attorneys were well-qualified
and represented the parties well.
Finally, regarding factor (8), the trial court found that attorney fees were “hourly based
upon the amount of time spent.”
After analyzing the factors, the trial court noted the hourly rates of each attorney, i.e.,
Phelps ($200), Phelps’s associate ($175), Quinn ($200), and Scott ($325), listed the amounts
charged by the attorneys through August 31, 2013, and estimated the fees that were incurred
afterwards. The trial court further ruled that defendant could have been well represented by one
attorney at $200 an hour for a total of $186,654, and also concluded that reasonable expert
witnesses fees were in the amount of $41,050, for a total of $227,704 to be awarded to defendant
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in order for her to bear the expense of defending the action. Then, as we have previously
explained, the trial court ordered the creation of a so-called “war chest” totaling $455,408
(double the amount awarded to defendant), through payments to be made by the parties in
proportion to their annual incomes.
Defendant challenges the reasonableness of the attorney-fee portion of this award,
arguing that she was disadvantaged because plaintiff incurred for his own attorney fees nearly
double the amount she was awarded by the trial court to pay her attorneys. But in its
consideration of MRPC 1.5(a)(1), the trial court expressly considered resources required given
the “time-intensive” nature of the proceedings, and it ultimately concluded that defendant could
have been well represented by one attorney at $200 an hour for a total of $186,654. Defendant
has failed to establish that the trial court’s conclusion was outside the range of principled
outcomes. Maldonado, 476 Mich. at 388.
Affirmed. No costs, as neither of the parties prevailed in full. MCR 7.219.
/s/ Kurtis T. Wilder
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
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