Michael Alan Schwartz v. Sara Oltarz-Schwartz ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL ALAN SCHWARTZ, UNPUBLISHED
September 22, 2016
Plaintiff/Counter-Defendant-
Appellant,
v Nos. 324555; 330031; 330213
Oakland Circuit Court
SARA OLTARZ-SCHWARTZ, LC No. 2013-810233-DO
Defendant/Counter-Plaintiff-
Appellee.
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
In these consolidated appeals, plaintiff appeals as of right in Docket No. 324555 a
judgment of divorce entered by Oakland Circuit Court Judge Mary Ellen Brennan. In Docket
No. 330031, plaintiff appeals as of right a subsequent order entered by Judge Lisa Langton,
which required plaintiff to pay defendant $68,452.60 in attorney fees and $3,965 in costs related
to the divorce. In Docket No. 330213, plaintiff appeals by leave granted another order entered
by Judge Langton, which granted in part defendant’s motion to enforce the judgment of divorce.
In Docket No. 330031, we vacate the order awarding attorney fees and remand for further
proceedings, but affirm in all other respects.
I. FACTUAL BACKGROUND
Plaintiff and defendant, both attorneys, were married on December 8, 1973. The
marriage produced two children who were adults at the time of the divorce.
In the early 2000s, plaintiff lost approximately $1 million in investments when the stock
market crashed. The parties agreed at trial that the initial collapse of their marriage coincided
with the loss. However, they also provided extensive testimony regarding their respective
perspectives on the subsequent breakdown of their relationship, including the fact that the couple
stopped sharing a marital relationship at least 10 years prior to trial. At some point, plaintiff
began engaging in a long-term affair with Julie Mareski, whom he secretly supported financially
for several years prior to the divorce.
In December 2012 or January 2013, plaintiff disclosed the affair and his support of
Mareski to defendant. A short time later, defendant requested a divorce, and plaintiff moved out.
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According to defendant, plaintiff asked her to hold off filing for divorce, promising that a title
company he operated would start earning “a lot more money” and that he would pay all the legal
fees in an “amicable divorce.” Regardless, plaintiff filed a divorce complaint on July 8, 2013.
Extensive proceedings ensued. Ultimately, the trial court entered an opinion and order
granting the divorce on August 29, 2014. After additional filings and hearings, the trial court
entered a judgment of divorce and uniform spousal support order on October 1, 2014.1 Further
proceedings related to the divorce continued for nearly a year afterward, eventually resulting in
the trial court’s September 9, 2015 order awarding defendant $68,745.10 in attorney fees and
$3,965 in costs and its September 18, 2015 order granting in part defendant’s motion to enforce
the judgment of divorce, as well as other opinions and orders.
II. PROPERTY DIVISION
In Docket No. 324555, plaintiff raises numerous challenges to the trial court’s division of
the parties’ property. We reject all of plaintiff’s claims.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Appellate courts review a trial court’s dispositional ruling in a divorce case as follows:
The appellate court must first review the trial court’s findings of fact under the
clearly erroneous standard. If the findings of fact are upheld, the appellate court
must decide whether the dispositive ruling was fair and equitable in light of those
facts. But because we recognize that the dispositional ruling is an exercise of
discretion and that appellate courts are often reluctant to reverse such rulings, we
hold that the ruling should be affirmed unless the appellate court is left with the
firm conviction that the division was inequitable. [Sparks v Sparks, 440 Mich.
141, 151-152; 485 NW2d 893 (1992) (footnote omitted).]
“The goal in distributing marital assets in a divorce proceeding is to reach an equitable
distribution of property in light of all the circumstances.” Gates v Gates, 256 Mich. App. 420,
423; 664 NW2d 231 (2003). “The division need not be mathematically equal, but any significant
departure from congruence must be clearly explained by the trial court.” Id. When dividing the
marital estate, it is appropriate for the court to consider the following non-exhaustive factors:
(1) duration of the marriage, (2) contributions of the parties to the marital estate,
(3) age of the parties, (4) health of the parties, (5) life status of the parties, (6)
necessities and circumstances of the parties, (7) earning abilities of the parties, (8)
past relations and conduct of the parties, and (9) general principles of equity.
1
On November 4, 2014, the trial court filed a judgment nunc pro tunc to include page three of
the judgment, which had not been filed electronically or sent to the parties. The effective date of
the judgment was still October 1, 2014.
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[Sparks, 440 Mich. at 159-160.]
“[W]here any of the factors . . . are relevant to the value of the property or to the needs of the
parties, the trial court shall make specific findings of fact regarding those factors.” Id. at 159.
“The significance of each of these factors will vary from case to case, and each factor need not
be given equal weight where the circumstances dictate otherwise.” Byington v Byington, 224
Mich. App. 103, 115; 568 NW2d 141 (1997). “Indeed, there will be many cases where some, or
even most, of the factors will be irrelevant.” Sparks, 440 Mich. at 159.
B. SPARKS FACTORS
Plaintiff first raises a series of claims concerning the trial court’s application of the
Sparks factors. He primarily contends that the court placed a disproportionate emphasis on his
fault in the breakdown of the marriage, raising a series of challenges to the trial court’s findings
or purported lack of findings with regard to each of the factors. As demonstrated below, the
record shows that the trial court made specific findings on the Sparks factors and did not focus
exclusively on defendant’s fault for the end of the marriage in distributing the property. While
we recognize that defendant received significantly more property than plaintiff as a result of the
trial court’s distribution, we cannot conclude that the trial court’s decision, which it clearly
explained, was unfair and inequitable given the facts of this case. See Gates, 256 Mich. App. at
423; Sparks, 440 Mich. at 151-152.
1. CONTRIBUTIONS TO THE MARITAL ESTATE
Plaintiff first argues that the trial court erred in failing to make any express findings
regarding the parties’ contributions to the marital estate, and that he should have been credited
with contributing most of the marital assets—while defendant contributed “virtually nothing”—
in the last 20 years. We disagree.
Contrary to plaintiff’s claims, the trial court expressly determined in its factual findings
that both plaintiff and defendant are licensed attorneys who worked for significant periods of
time during the marriage. The court also specifically found that “the parties agreed that
[defendant] would stop working and that decision was ratified by their actions during the
marriage,” and, later in its opinion, that “[d]efendant raised the parties’ children and maintained
the marital home,” which resulted in “her employment skills and education [growing] obsolete.”
Thus, although the court did not specifically link these findings to the Sparks framework, the
court did consider each party’s contributions to the marital estate.
Additionally, as the trial court concluded, the parties both worked as licensed attorneys,
with exceptions for defendant’s childcare-related leave, from 1972 until 1992. It was undisputed
that plaintiff did not object when defendant left the workforce in 1992, at which time the parties’
children were teenagers and still living at home. As the trial court concluded, the record
confirms that defendant contributed to the household, preparing meals and caring for the children
until they went to college. It was appropriate for the trial court to consider those household
contributions. Hanaway v Hanaway, 208 Mich. App. 278, 293-294; 527 NW2d 792 (1995).
Additionally, the couple opened a law firm in 2001, but there was not enough work for both
plaintiff and defendant. Nevertheless, the record shows that defendant continued to support
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plaintiff professionally by reviewing his written work product and substituting for him in court at
least once.
Thus, the trial court correctly concluded that both parties contributed substantially to the
marital estate. See Sparks, 440 Mich. at 151-152.
2. HEALTH PROBLEMS
Next, plaintiff argues that the trial court should not have “equalized” the parties’ health
problems when distributing the marital property. We again conclude that the trial court’s factual
findings on this factor were not clearly erroneous. See id.
In its findings, the trial court acknowledged each party’s testimony regarding their health
issues. Although it did not specifically address the parties’ health in the section of its opinion
concerning the division of marital assets, it later stated, in the context of establishing spousal
support, that “[defendant] has some health issues as does [p]laintiff.” Similarly, in its opinion
denying plaintiff’s motion for a new trial, it reiterated that it had considered both parties’ health,
as well as other factors, when it divided the parties’ assets.
There is no dispute that plaintiff suffers from various health problems. However, no
evidence was presented below indicating that the problems impacted his earning potential.2
Conversely, defendant testified that one doctor had advised her to stop working many years
earlier, and that putting in a full day, like she did during trial, was difficult and required special
precautions because of her anemia. She also testified that, while plaintiff was working for
Geoffrey Fieger, the parties decided that she would stop working at the recommendation of her
doctors because she “was not well enough to work full-time.” Because she did not work,
defendant only owned a portion of the law firm and her only income was $1,250 per month in
social security benefits. Therefore, to the extent that the trial court considered the parties’
health—and its effect on their status and earning potential, as clearly relevant in dividing the
property and awarding spousal support—weighing this factor in favor of defendant was fair and
equitable.
Plaintiff also challenges the trial court’s acceptance of defendant’s testimony,
emphasizing that she did not produce documentary evidence to support her statements. See
Sparks, 440 Mich. at 151-152. We find no basis for concluding that the trial court’s findings
were clearly erroneous based on the lack of independent documentation. “Because this case was
heard as a bench trial, the court was obligated to determine the weight and credibility of the
evidence presented.” Wright v Wright, 279 Mich. App. 291, 299; 761 NW2d 443 (2008). “We
defer to the trial court’s credibility determinations given its superior position to make these
judgments.” Shann v Shann, 293 Mich. App. 302, 305; 809 NW2d 435 (2011).
2
Rather, plaintiff testified that, despite his health, “I’ve always worked, and it’s always been my
intention to work.” Consistent with his stated intentions, the record confirms that plaintiff
continued to work, owned a portion of two businesses, and was eligible for $2,349 per month in
social security benefits.
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3. LIFE STATUS AND EARNING ABILITY
In a related argument, plaintiff contends that the trial court clearly erred when it found in
the spousal support section of its opinion that defendant was unable to work. Plaintiff claims
that defendant never testified that her legal skills and education were obsolete, citing in support
of his claim her membership in the Michigan and New York bar associations and her stated
efforts to remain abreast of developments in the law. Plaintiff also contends that there was no
medical evidence that defendant was disabled from working, and that her testimony about
writing a book and the possibility of a lecture tour undermine such a conclusion. We reject
plaintiff’s claims.
In making this argument, plaintiff ignores the fact that he conceded to defendant’s
decision to leave the full-time workforce more than two decades earlier. Although defendant is a
member of two bar associations and she testified that she tried to stay informed of legal
developments, there is no evidence in the record that she could obtain gainful legal employment.
To the contrary, when she attempted to secure legal employment in the early 2000s—after being
out of the market for much less time than now—she was completely unsuccessful. In addition,
by the time of the divorce, defendant was nearly 70 years old, and her health made full days of
activity, such as participating in trials, very difficult. Although defendant testified that she is
writing a book and has aspirations of participating in a lecture tour, there is no evidence in the
record that these efforts will result in income. Likewise, she specifically testified that she has
“had problems that have caused [her] to stop writing for a lengthy period of time.” Therefore, in
light of defendant’s professional history, health, and age, we are not left with a definite and firm
conviction that the trial court made a mistake when it found that defendant was unable to work
and earn an income. See Sparks, 440 Mich. at 151-152.
4. NECESSITIES AND CIRCUMSTANCES OF THE PARTIES
Plaintiff next argues that the trial court should have weighed the parties’ current
circumstances in his favor when awarding the marital property. He contends that defendant was
awarded a large home with many amenities, while he is “compelled” to live in a more modest
apartment with Mareski, which has “far less amenities.” Aside from the cost to rent the
apartment, plaintiff presented no evidence regarding the unit to establish such a distinction.
Moreover, although defendant was awarded the marital home, she was also burdened with the
parties’ mortgage, on which more than $300,000 was owed. Therefore, we find no basis for
concluding that the trial court erred in failing to consider the purported disparity between the
“necessities and circumstances” of the parties based on the amenities available at their respective
residences, or that the property division was unfair and inequitable on that basis. See Sparks,
440 Mich. at 151-152.
5. PAST RELATIONS AND CONDUCT OF THE PARTIES
Plaintiff also challenges the trial court’s findings regarding the fault and conduct of the
parties on several grounds. We reject plaintiff’s claims.
i. PLAINTIFF’S FAULT IN THE BREAKDOWN OF THE MARRIAGE
Plaintiff argues that the trial court should have apportioned the fault more equally, as he
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contends that the breakdown occurred before his long-term affair with Mareski. As plaintiff
claims, the trial court acknowledged that both parties “had some responsibility for the breakdown
of the marriage.” However, the evidence clearly supports the trial court’s finding that plaintiff’s
affair with Mareski and plaintiff’s dispersion of the marital assets, through his support of
Mareski, were the “overwhelming cause[s]” of the breakdown. Even though both parties
admitted that they grew apart in the 1990s or early 2000s and stopped having intimate relations,
the parties did not decide to divorce until defendant learned of plaintiff’s secret affair with, and
financial support of, Mareski.
Additionally, plaintiff contends that the trial court gave disproportionate weight to his
fault and punished him for the affair to the exclusion of the other Sparks factors. However, as
the trial court emphasized in its opinion denying plaintiff’s motion for a new trial, it is apparent
that the court considered plaintiff’s fault—including both the affair and his “economic waste” of
the parties’ resources by providing for Mareski’s expenses for many years—as well as the long
length of the marriage; both parties’ earning capacity; both parties’ contributions to the marriage
and family; the age of the parties; and the parties’ health.
Relatedly, plaintiff claims in his brief on appeal that the judgment is inequitable because
he received only 13 percent of the parties’ assets while defendant received 87 percent. Plaintiff’s
calculations are difficult to follow and seem miscalculated. Adding just the parties’ immediate
cash resources and equity, and subtracting the parties’ debt,3 plaintiff is left with a positive
balance, whereas defendant is left with a negative balance. Notably, these totals do not reflect
the future revenue that plaintiff may enjoy from his title company4 and from attorney fees
through his work at the law firm, as well as the thousands of dollars in marital assets that he
already—and secretly5—dissipated from the marital estate in order to support Mareski during the
marriage.6 “[A] party’s attempt to conceal assets” is “relevant in considering an equitable
3
Marital debts are treated in the same way as marital assets in a divorce action. See, e.g., Butler
v Simmons-Butler, 308 Mich. App. 195, 208-209; 863 NW2d 677 (2014).
4
Although the title company is currently unprofitable, he promised defendant that it would earn
millions of dollars.
5
Plaintiff argues that the trial court did not explain how it concluded that there was an effort to
conceal assets, but even plaintiff testified that defendant did not know that he was supporting
Mareski until December 2012 or January 2013.
6
The trial court found that, in 2004 and 2005, plaintiff routinely removed $1,500 to $2,000 per
month from the law firm’s account, and plaintiff admitted that he gave Mareski loans that were
not repaid around this time. Likewise, between 2005 and 2013, plaintiff spent $89,900 just on
rent for Mareski. And in addition to her rent, plaintiff supported Mareski with payments for her
utilities, cable TV, phone, transportation (including the lease, rental, and purchase of a car,
insurance costs, registration fees, and license plate fees), gifts, and spending money. Mareski
testified that she was “sure there were things that he didn’t pay for,” but she did not name any.
The trial court did not identify plaintiff’s total spending in addition to rent, but it stated in its
opinion that it amounted to “tens of thousands of dollars.”
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division of marital property[.]” Hanaway, 208 Mich. App. at 298. Likewise, “when a party has
dissipated marital assets without the fault of the other spouse, the value of the dissipated assets
may be included in the marital estate.” Woodington v Shokoohi, 288 Mich. App. 352, 368; 792
NW2d 63 (2010). Additionally, as previously mentioned, plaintiff has a greater earning capacity
than defendant despite his age and health problems.
Again, “[t]he goal in distributing marital assets in a divorce proceeding is to reach an
equitable distribution of property in light of all the circumstances.” Gates, 256 Mich. App. at 423.
The application of the Sparks factors in this case supports the trial court’s property distribution.
We are not left with a firm conviction that the property division was inequitable. See Sparks,
440 Mich. at 151-152.
ii. COBRA PAYMENTS
Plaintiff also argues that the trial court clearly erred when it found that he paid for
Mareski’s insurance through the Consolidated Omnibus Budget Reconciliation Act (“COBRA”),
29 USC 1161 et seq., from August 2013 to November 2013, but did not pay for defendant’s
COBRA coverage. The testimony and documentary evidence presented at trial shows that
plaintiff paid for both Mareski’s and defendant’s benefits during that period using the firm’s
account. Thus, as defendant agrees on appeal, the trial court clearly erred in concluding that
plaintiff did not pay for defendant’s coverage. See Sparks, 440 Mich. at 151-152.
However, the trial court’s error was harmless. See MCR 2.613(A). It made this finding
as part of its determination that plaintiff was at fault for dissipating the marital estate by
supporting Mareski for years. Given the extensive evidence in the record, the court’s error does
not affect that determination. Thus, we will not disturb the trial court’s judgment based on this
minor factual error, as we are not “left with the definite and firm conviction that a mistake has
been made.” See Draggoo v Draggoo, 223 Mich. App. 415, 429; 566 NW2d 642 (1997).
iii. VETERINARY EXPENSES
Plaintiff contends that the trial court erred in requiring him to reimburse defendant for the
family pet’s veterinary bills. He first argues that documentary evidence establishes that
defendant did not spend $12,000, despite her testimony at trial. Second, he argues that insurance
would not have covered all of the costs incurred and, as such, challenges the trial court’s finding
that he unilaterally decided “not to renew the pet insurance that would have covered those costs.”
We also reject these claims.
The only evidence regarding the costs of the veterinary care presented at trial was
defendant’s testimony, which the trial court found credible. Plaintiff testified that pet insurance
is a “bad deal,” but he did not offer any evidence regarding items a policy would have covered in
this circumstance. Again, it was the trial court’s responsibility to “determine the weight and
credibility of the evidence presented.” Wright, 279 Mich. App. at 299. Plaintiff later submitted
some unverified receipts for the dog’s care (totaling $3,361.30) and sample pet insurance
coverage with his motion for a new trial and with his brief on appeal. However, plaintiff did not
establish that this was “newly discovered” evidence warranting a new trial. See MCR
2.611(A)(1)(f); South Macomb Disposal Auth v Am Ins Co, 243 Mich. App. 647, 655; 625 NW2d
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40 (2000). Likewise, the evidence that plaintiff submitted after the close of proofs with his
motion for a new trial, as well as with his brief on appeal, is not part of the evidentiary record
that we will consider on appeal. See In re Rudell Estate, 286 Mich. App. 391, 405; 780 NW2d
884 (2009); Kent Co Aeronautics Bd v Dep’t of State Police, 239 Mich. App. 563, 579-580; 609
NW2d 593 (2000), aff’d sub nom Byrne v State, 463 Mich. 652 (2001). As a result, it cannot be
used to establish that the trial court clearly erred in making its factual findings regarding the pet
bills.
Moreover, even if all of the costs incurred would not have been covered by the pet
insurance, defendant testified that plaintiff had promised to pay for the veterinary costs, and the
trial court expressly found defendant’s testimony credible. Therefore, the order requiring
plaintiff to reimburse defendant according to his promise was fair and equitable.
C. CLASSIFICATION OF PROPERTY
Plaintiff also raises various challenges regarding whether particular types of property
were marital or separate. We reject his claims.
1. STANDARD OF REVIEW
We review “for clear error a trial court’s factual findings on . . . whether a particular asset
qualifies as marital or separate property.” Hodge v Parks, 303 Mich. App. 552, 554-555; 844
NW2d 189 (2014). Generally, marital assets are subject to division between the parties, but the
parties’ separate assets may not be invaded. Woodington, 288 Mich. App. at 358. Assets acquired
or earned by a spouse during the marriage are usually part of the marital estate. Cunningham v
Cunningham, 289 Mich. App. 195, 201; 795 NW2d 826 (2010), citing MCL 552.19.
Additionally, separate assets acquired before marriage become part of the marital estate “if they
are commingled with marital assets and treated by the parties as marital property.” Id. (quotation
marks and citation omitted). Notably, “[t]he mere fact that property may be held jointly or
individually is not necessarily dispositive of whether the property is classified as separate or
marital.” Id. at 201-222. As a result, “[t]he actions and course of conduct taken by the parties
are the clearest indicia of whether property is treated or considered as marital, rather than
separate, property.” Id. at 209.
2. ANALYSIS
Plaintiff first argues that the trial court made factual misstatements about their
management of marital funds and contradictorily concluded that the parties’ funds were
commingled even though the parties never had joint accounts. We disagree. Even though the
parties had separate accounts, the record demonstrates that plaintiff and defendant used the funds
in their separate accounts for joint purposes, such as paying marital bills. Even if a party
acquired separate property during the marriage, or brought preexisting separate property into the
marriage, the court may divide it as part of the marital estate if it is commingled with marital
property or used for joint purposes. See, e.g., Polate v Polate, 331 Mich. 652, 654-655; 50
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NW2d 190 (1951).7 Further, there is a presumption that earned property (e.g., as compensation
for services) acquired by one spouse during the marriage is marital property. Byington v
Byington, 224 Mich. App. 103, 112; 568 NW2d 141 (1997).
Additionally, plaintiff claims that the court’s finding that the parties “were always
signatories on each other’s accounts” but no longer signatories after 1995 was a non sequitur.
We disagree. Although the trial court’s findings could have been drafted with a more careful use
of the word “always,” the court clearly referred to the historical trend until 1995 and then noted a
subsequent change in the parties’ practice.
Finally, plaintiff argues that the trial court erroneously awarded a painting—valued
between $1,000 and $3,000—to defendant because it was his separate property. “Normally,
property received by a married party as an inheritance, but kept separate from marital property, is
deemed to be separate property not subject to distribution.” Dart v Dart, 460 Mich. 573, 585;
597 NW2d 82 (1999). However, even though the painting came from plaintiff’s family, it was
not obtained by inheritance. Rather, defendant testified that when the parties were first married,
plaintiff sought out the painting in order to show it to her, as it featured a Polish scene and she
was born in Poland.8 After learning that plaintiff’s parents gave the painting to plaintiff’s
brother, and that he was only storing it in a closet, plaintiff and defendant acquired the painting
and enjoyed it in their home for the rest of their 40-year marriage together. Plaintiff does not cite
any evidence indicating that the painting was intended to be his separate property. See
Cunningham, 289 Mich. App. at 209. Thus, the trial court did not err in concluding that the
painting was marital property or abuse its discretion in distributing it to defendant as it divided
the parties’ assets. See Hodge, 303 Mich. App. at 554-555.
III. LIQUIDATION OF EXISTING LIFE INSURANCE POLICIES AND
PURCHASE OF NEW POLICIES
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review a trial court’s award of spousal support for an abuse of discretion and its
findings of fact related to a spousal support award for clear error. Woodington, 288 Mich. App. at
355. We will affirm a trial court’s dispositional ruling unless we are left with the firm conviction
that the ruling was inequitable. Id. “The objective of spousal support is to balance the incomes
7
In a reply brief, plaintiff also argues that an inheritance from his mother should have been
treated as separate property. Reply briefs are limited to rebuttal, and raising an issue for the first
time in a reply brief is not sufficient to present the matter for appeal. Bronson Methodist Hosp v
Michigan Assigned Claims Facility, 298 Mich. App. 192, 199; 826 NW2d 197 (2012).
Nevertheless, we note that by the time the judgment was entered, there was nothing left from the
inheritance to distribute. Plaintiff already had spent the money, and he admitted that it was used
to pay the parties’ bills.
8
Accordingly, defendant testified that if she had not been born in Poland, “we probably wouldn’t
even have the painting[.]”
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and needs of the parties in a way that will not impoverish either party, and support is to be based
on what is just and reasonable under the circumstances of the case.” Id. at 356.
B. ANALYSIS
In Docket No. 324555, plaintiff argues that Judge Brennan’s order to obtain life
insurance to insure his monthly $1,800 spousal support obligation in the event of his death is
inequitable.9 We disagree.
Without any citation to the record or substantiation in his brief, plaintiff makes
contradictory claims that (1) he is uninsurable because of his health problems, and (2) he can
only obtain a whole life policy “at an expensive premium for a mere fraction of the coverage
which is necessitated by the order.” Nevertheless, given plaintiff’s health problems, including,
among other things, diabetes and heart disease—and given the fact that defendant’s entitlement
to spousal support survives plaintiff’s death and terminates only upon defendant’s death or
remarriage—it was not inequitable, in order to ensure compliance with the judgment, for the trial
court to require plaintiff to secure his spousal support obligation by purchasing a life insurance
policy.10 See Woodington, 288 Mich. App. at 355.
Additionally, in Docket Nos. 324555 and 330213, plaintiff raises nearly identical claims
that Judge Brennan’s order requiring plaintiff to liquidate his existing life insurance policies and
purchase new, more expensive policies was nonsensical. Plaintiff’s argument is unpersuasive for
several reasons. First, in the trial court, plaintiff expressly requested that the existing life
insurance policies be liquidated and divided equally between the parties, just as Judge Brennan
ultimately ordered. He cannot now complain that he received that requested relief.11 See
9
Notably, plaintiff does not contest the award itself or the factors considered by the trial court in
awarding spousal support. He only contests the court’s order that he insure his monthly spousal
support obligation.
10
See Luckow v Luckow, 291 Mich. App. 417, 425; 805 NW2d 453 (2011) (recognizing that
under Michigan law, “the obligation to pay alimony does not terminate by operation of law upon
the death of the payor; it may be enforced against the payor’s estate”) (quotation marks and
citation omitted); Kurz v Kurz, 178 Mich. App. 284, 296-297; 443 NW2d 782 (1989) (concluding
that a trial court “abused its discretion in requiring [the plaintiff] to maintain a life insurance
policy naming [the] defendant as sole beneficiary so as to secure her right to alimony” because
“[u]nder the terms of the divorce judgment, [the] plaintiff’s obligation to pay alimony ceased
upon the occasion of his death.”). Cf. Luckow, 291 Mich. App. at 425-426 (“To hold that, as a
rule, the death of the payor eliminates any further spousal-support obligation without regard to
the particular circumstances pertinent to an award of spousal support would alter the balance of
assets and income struck by the court in rendering the divorce judgment and any subsequent
modification orders, without regard to the provisions of the divorce judgment or to the particular
equities presented.”) (emphasis added).
11
Plaintiff asserts on appeal that he requested that only one policy be liquidated and defendant’s
policy be kept intact, but he provides no citation to the record in support of this claim.
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Hoffenblum v Hoffenblum, 308 Mich. App. 102, 117; 863 NW2d 352 (2014). Second, by
liquidating the existing insurance policies, the parties each received approximately $74,000,
thereby providing a large cash reserve that, as clear from the record, both parties needed,
partially because of plaintiff’s dissipation of marital assets. Third, even if Judge Brennan knew,
as plaintiff argues, that the new insurance policy would be expensive for plaintiff, any monthly
payment for life insurance for the remainder of defendant’s life was much lower than the cash
reserve plaintiff obtained from liquidating the existing policies.
We reject plaintiff’s claims.
IV. JUDICIAL BIAS
Throughout his brief on appeal in Docket No. 324555, plaintiff suggests that the trial
court was biased against him in light of statements that the court made throughout the
proceedings concerning plaintiff’s testimony and conduct. Because he failed to include an issue
related to judicial bias in his statement of questions presented and failed to cite any supporting
authority in support of this claim, we deem this issue waived and abandoned. See River
Investment Group, LLC v Casab, 289 Mich. App. 353, 360; 797 NW2d 1 (2010); Houghton ex rel
Johnson v Keller, 256 Mich. App. 336, 339-340; 662 NW2d 854 (2003). Nevertheless, we note
that “opinions formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings . . . do not constitute a basis for a bias or partiality motion
unless they display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Cain v Michigan Dep’t of Corrections, 451 Mich. 470, 496; 548 NW2d 210 (1996).
We find no indication in the record that such was the case here.
V. ATTORNEY FEES & COSTS
Next, in Docket Nos. 324555 and 330031, plaintiff challenges Judge Brennan’s orders
concluding that defendant was entitled to attorney fees and costs and Judge Langton’s order
determining the amount of fees and costs owed. We agree that remand is required with regard to
this issue.
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review for an abuse of discretion a trial court’s award of attorney fees
in a divorce action. An abuse of discretion occurs when the result falls outside the
range of principled outcomes. However, findings of fact on which the trial court
bases an award of attorney fees are reviewed for clear error. A finding is clearly
erroneous if we are left with a definite and firm conviction that a mistake has been
made. [Richards v Richards, 310 Mich. App. 683, 699-700; 874 NW2d 704 (2015)
(quotation marks and citations omitted).]
Under the “American rule,” attorney fees are not recoverable as an element of costs or damages
unless expressly allowed by statute, court rule, common-law exception, or contract. Reed v
Reed, 265 Mich. App. 131, 164; 693 NW2d 825 (2005). Likewise, in divorce actions, attorney
fees are not recoverable by right, but they are authorized by statute, see MCL 552.13, and court
rule, see MCR 3.206(C). Reed, 265 Mich. App. at 164. However, there is a “common-law
exception to the American rule that an award of legal fees is authorized where the party
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requesting payment of the fees has been forced to incur them as a result of the other party’s
unreasonable conduct in the course of the litigation.” Reed, 265 Mich. App. at 164-165 (quotation
marks and citation omitted). See also Richards, 310 Mich. App. at 700. In order to fulfill the
exception, “the attorney fees awarded must have been incurred because of misconduct.” Reed,
265 Mich. App. at 165. “The party requesting the attorney fees has the burden of showing facts
sufficient to justify the award.” Borowsky v Borowsky, 273 Mich. App. 666, 687; 733 NW2d 71
(2007).
B. ANALYSIS
As an initial matter, it is necessary to clarify the basis of Judge Brennan’s grants of
attorney fees in this case. In her August 29, 2014 opinion and order granting the divorce, she
noted that defendant had requested attorney fees under MCR 2.313(A)(5) because (1) plaintiff’s
testimony was not credible, and (2) plaintiff insufficiently answered a request for admission,
claiming that a loan and inheritance paid for most of Mareski’s expenses, and this answer greatly
increased the costs and expenses incurred by defendant. Judge Brennan then concluded:
The court is satisfied that because the testimony at trial established that [p]laintiff
has been fully supporting Ms. Mareski since at least 2004, years before the 2009
$50,000 loan from Geoffrey Fieger and the $150,000 2010 inheritance from his
mother, an award of fees and costs shall be awarded to [d]efendant. The court
will hold a hearing to determine the amount.
The opinion also states, “A Judgment shall enter in conformance with this Opinion and Order
within fourteen (14) days of its issuance.” (Emphasis added). The October 1, 2014 judgment of
divorce states, “Defendant is awarded attorney fees incurred on Defendant’s behalf. This Court
will schedule an evidentiary hearing to determine the amount.”
Consistent with Judge Brennan’s August 29, 2014 opinion and order, Judge Langton held
a hearing on the attorney fee issue on July 31, 2015. She then entered a blanket award of
attorney fees and costs in her September 9, 2015 order, reasoning:
Even though Plaintiff argues that Judge Brennan awarded limited attorney
fees solely as a sanction for discovery deficiencies, the court does not agree, and
does not find Judge Brennan’s award to be so narrow. It is true that in the
Opinion and Order, the attorney fee award was in response to Defendant’s
request under MCR 2.313(A)(5). The court, however, finds that the Judgment of
Divorce – which was issued at a later date – simply awarded Defendant attorney
fees, without any restrictive language. Furthermore, Judge Brennan also awarded
Defendant “actual attorney fees and costs in connection with this matter,” two
weeks after the parties entered their Judgment of Divorce, in connection to a
motion seeking to supplement the parties’ initial Judgment of Divorce. This
further demonstrates to the court Judge Brennan’s intention for a more wide
ranging attorney fee award, than what Plaintiff argues she granted.
We disagree with Judge Langton’s conclusion. See Neville v Neville, 295 Mich. App. 460,
466; 812 NW2d 816 (2012) (stating that we review a trial court’s interpretation of a divorce
-12-
judgment de novo). Again, Judge Brennan’s opinion and order granting the divorce provided
that a judgment would be entered “in conformance with” that opinion. Even though Judge
Brennan did not restate the basis of her attorney fee award in the judgment, we must assume,
given the clear language of her opinion and order—and the fact that there is nothing in the record
indicating that Judge Brennan later intended to expand the scope of the attorney fees awarded in
that opinion—that the award of attorney fees in the judgment was “in conformance” with the
opinion’s limitation of attorney fees to those necessitated by the request to admit.12 Thus, we
conclude that Judge Langton clearly erred in concluding that Judge Brennan’s judgment intended
a “more wide ranging attorney fee award.” See Richards, 310 Mich. App. at 699-700.
1. ATTORNEY FEES RELATED TO REQUEST TO ADMIT
Next, given plaintiff’s challenges to the basis of the attorney fee award in the August 29,
2014 opinion and order, we must determine whether the trial court’s award of attorney fees
necessitated by the request to admit constituted an abuse of discretion. As mentioned supra,
Judge Brennan noted in her opinion that defendant sought fees under MCR 2.313(A)(5), but that
court rule is not applicable to the circumstances here.13 Additionally, defendant did not request
attorney fees on the basis of need pursuant to MCL 552.13 or MCR 3.206(C)(2), and there is no
indication in the record that Judge Brennan justified the award with that statute or court rule.
Plaintiff argues that one of the bases on which Judge Brennan predicated the award was
MCR 2.313(C) in light of plaintiff’s response to defendant’s request to admit. He contends that
granting attorney fees on that basis was in error. MCR 2.313(C) provides, in relevant part:
If a party denies the genuineness of a document, or the truth of a matter as
requested under MCR 2.312, and if the party requesting the admission later
proves the genuineness of the document or the truth of the matter, the requesting
party may move for an order requiring the other party to pay the expenses
incurred in making that proof, including attorney fees. [Emphasis added.]
A trial court is required to enter an order pursuant to MCR 2.313 unless one of the grounds under
MCR 2.313(C)(1)-(4) applies. Plaintiff is correct that he did not deny the truth of a matter as
requested. Absent a denial, attorney fees were not appropriate under the plain language of MCR
2.313(C). See Henry v Dow Chem Co, 484 Mich. 483, 495; 772 NW2d 301 (2009) (stating that
the first step in interpreting a court rule is “considering the plain language of the court rule in
12
Notably, if Judge Brennan intended the judgment to require plaintiff to pay all of defendant’s
attorney fees, her order, which she entered just a few days after the judgment, requiring him to
pay defendant’s attorney fees specifically related to his lack of compliance with the court’s
January 8, 2014 order concerning payment of the mortgage would have been unnecessary and
duplicative.
13
MCR 2.313(A) pertains to attorney fees related to motions and orders compelling discovery.
Neither party claims that defendant filed a motion to compel plaintiff to respond to the request to
admit.
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order to ascertain its meaning.”). Cf. Richardson v Ryder Truck Rental, Inc, 213 Mich. App. 447,
457; 540 NW2d 696 (1995).
Alternatively, however, Judge Brennan had the discretion to order attorney fees under the
common-law exception explained in Reed, 265 Mich. App. at 164-165. Plaintiff argues that his
admission was factually accurate and reasonable based on the amount of support that he provided
at various points and the time at which his support increased. The trial court did not make
factual findings regarding exactly how much money was spent to support Mareski each year. As
a result, it is not clear from the record whether plaintiff was truthful when he said that “most” of
the support was derived from the loan and inheritance. See Merriam-Webster’s Collegiate
Dictionary (11th ed) (defining “most” as “greatest in quantity, extent, or degree” or “the majority
of”). Nevertheless, even if his statement was technically truthful, it appears from the context of
Judge Brennan’s opinion that she concluded that plaintiff’s admission was unreasonable because
it constituted gamesmanship or an attempt to conceal support provided before plaintiff received
the loan and inheritance. Such a conclusion is not clearly erroneous, and ordering attorney fees
on that basis was not an abuse of discretion. See Richards, 310 Mich. App. 683, 699-700; Reed,
265 Mich. App. at 165.14
However, the record fails to demonstrate the necessary link between plaintiff’s answer to
the request to admit and the amount of attorney fees awarded by Judge Langton. See Reed, 265
Mich. App. at 165-166 (finding an abuse of discretion when even though the “defendant’s failure
to comply with a discovery order constituted misconduct, [the] plaintiff did not establish what
fees she incurred as a result,” and the court made “made no finding in that regard or concerning
the reasonableness of the fees incurred because of misconduct.”). Here, as in Reed, Judge
Langton failed to determine the amount of fees incurred by defendant as a result of plaintiff’s
misconduct before she awarded defendant $68,452.60 in attorney fees and $3,965 in costs.15
Therefore, the attorney fees and costs awarded constituted an abuse of discretion, and
remand is necessary so that the trial court may determine the fees actually incurred as a result of
plaintiff’s unreasonable conduct. See id.
2. ATTORNEY FEES RELATED TO RETURNED MORTGAGE PAYMENT
Plaintiff also contends that the additional proceedings related to his payment of the
mortgage on the marital home during the divorce proceedings was not a proper basis for
awarding attorney fees. We disagree.
Before the judgment of divorce was entered, defendant filed a motion for contempt,
14
Contrary to plaintiff’s claim on appeal, there is no indication that Judge Brennan awarded
attorney fees based on plaintiff’s lack of credibility. She merely cited plaintiff’s lack of
credibility as one of the rationales cited by defendant in her request for attorney fees.
15
Judge Langton generally cited defendant’s assertion that the answer required additional
discovery and depositions, but she did not identify the specific expenses that resulted.
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arguing that plaintiff had violated the January 8, 2014 order requiring him to make mortgage
payments on the marital home and, as a result, the lender (Quicken Loans) was initiating
foreclosure proceedings. Defendant urged the trial court to order plaintiff to prove that payments
were current, and she requested attorney fees associated with plaintiff’s violation of the order. In
response, plaintiff argued that the payments were current regardless of Quicken Loans’ records.
Although no testimony was recorded on the date scheduled for the evidentiary hearing on
defendant’s motion, it appears from Judge Langton’s September 9, 2015 opinion that one of the
payments that plaintiff made pursuant to the January 8, 2014 order was not accepted and was
ultimately returned due to an error made by Quicken Loans. Then, when plaintiff received the
returned check, he took no action, which resulted in the initiation of foreclosure proceedings.
Ultimately, on October 8, 2014, Judge Brennan entered an order requiring plaintiff to pay
defendant $11,138.56 within 48 hours and specifying that “[t]his concludes plaintiff’s obligation
on the mortgage.” The trial court further stated, “Counsel for defendant is awarded actual
attorney fees & costs in connection with this matter, the amount of which is to be determined at
an evidentiary hearing date to be determined.”
Judge Langton concluded that even if plaintiff’s conduct strictly complied with the
January 8, 2014 order, his conduct disregarded the spirit of the order and resulted in additional
unnecessary litigation between the parties. Consistent with this conclusion, there is no indication
in the record that Judge Brennan made a finding of contempt, as defendant had requested, or that
she ordered attorney fees on that basis. Cf. MCL 600.1721; Taylor v Currie, 277 Mich. App. 85,
99-100; 743 NW2d 571, 580 (2007). Nevertheless, even if attorney fees and costs were not
awarded for contempt, an award of attorney fees based on a finding that plaintiff acted
unreasonably and generated additional costs to the parties by failing to take action despite his
knowledge that the payment was returned was not outside the range of principled outcomes. See
Richards, 310 Mich. App. at 699-700; Reed, 265 Mich. App. at 164-165. Thus, Judge Brennan’s
award of attorney fees based on plaintiff’s conduct related to the mortgage did not constitute an
abuse of discretion.
Once again, however, Judge Langton abused her discretion by making a blanket award of
attorney fees and costs without first determining the amount that resulted from plaintiff’s
unreasonable conduct. Thus, remand for a determination of the expenses resulting from
plaintiff’s conduct is necessary.16
16
Judge Langton expressly limited her opinion so that it was a determination of a reasonable
amount of attorney fees to be awarded consistent with Judge Brennan’s orders. She did not
separately conclude whether attorney fees were warranted on separate or additional grounds.
Therefore, even though plaintiff refutes several statements in Judge Langton’s September 9,
2015 order, review of additional grounds for an award of attorney fees is not before this Court.
Additionally, contrary to plaintiff’s characterization of Judge Langton’s opinion, the statements
that he challenges on appeal were made in the context of deciding the reasonableness of the fees
incurred by defendant’s attorney, not in the context of presenting alternative grounds for
awarding attorney fees in this case. See Souden v Souden, 303 Mich. App. 406, 415; 844 NW2d
151 (2013).
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3. MISCELLANEOUS CLAIMS
Finally, plaintiff makes several miscellaneous claims regarding attorney fees. All of
these claims lack merit.
He argues that the award should be reversed because he was less able to pay for
defendant’s attorney fees than she was following the judgment of divorce (which, according to
plaintiff, was skewed in defendant’s favor). Although ability to pay is a relevant consideration
under MCR 3.206(C)(2)(a), that rule was not the basis for the award of attorney fees in this case.
Plaintiff also complains that defense counsel’s invoices were vague and included
instances of “block billing.” Likewise, plaintiff claims that he does not understand what certain
entries mean. Plaintiff raised similar arguments below, and Judge Langton repeatedly gave
plaintiff the opportunity to question defense counsel about any lack of clarity in his billing
records. Nevertheless, as previously stated, the trial court must determine on remand which
expenses were related to—and were necessary as a result of—plaintiff’s response to the request
to admit and the mortgage-payment matter. See Souden v Souden, 303 Mich. App. 406, 415; 844
NW2d 151 (2013); Reed, 265 Mich. App. at 164-165; Stackhouse v Stackhouse, 193 Mich. App.
437, 445; 484 NW2d 723 (1992). To the extent that plaintiff remains confused, remand should
help to clarify which expenses where tied to the request to admit and the mortgage-payment
matter.
VI. MOTION TO ENFORCE THE JUDGMENT
In Docket No. 330213, plaintiff argues that Judge Langton erred in enforcing Judge
Brennan’s judgment of divorce. We disagree.
A. STANDARD OF REVIEW AND APPLICABLE LAW
Divorce actions are equitable in nature, and circuit courts have the authority to make any
order to enforce their judgments in divorce cases. MCL 600.611; Draggoo, 223 Mich. App. at
428. As such, the court should use its equitable powers to fashion its relief according to the
character of the case and do what is “ ‘necessary to accord complete equity and to conclude the
controversy.’ ” Draggoo, 223 Mich. App. at 428. “A trial court’s decision concerning equitable
issues is reviewed de novo, although its findings of fact supporting the decision are reviewed for
clear error.” Eller v Metro Indus Contracting, Inc, 261 Mich. App. 569, 571; 683 NW2d 242
(2004).
B. PAYMENT OF REVENUE FROM PENDING CASES17
17
In his statement of the questions presented in Docket No. 324555, plaintiff challenges the trial
court’s division of fees from cases pending in the law firm, but he provides no argument
regarding this issue in the body of his brief. Thus, we deem this claim abandoned. See Prince v
MacDonald, 237 Mich. App. 186, 197; 602 NW2d 834 (1999). However, we will address his
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Regarding revenue from pending cases, the judgment of divorce provides:
12. Law Firm of Schwartz & Oltarz-Schwartz, P.C. Revenue: Defendant
retains her 50% interest in the law firm of Schwartz & Oltarz-Schwartz, P.C.
Defendant is awarded a 50% interest in revenue produced in the cases listed on
Trial Exhibit R (a copy of which is attached hereto and incorporated herein) as
Exhibit A.
The fee agreement for one of the cases listed on Trial Exhibit R (“Dart”) provided for an hourly
fee of $200 per hour as well as a 20 percent contingency fee. The firm billed the client for 277.7
hours, totaling $55,540. The client settled the case for $450,000, resulting in $90,000 to the firm
for the contingency fee. Together, the billable hour fees and 20 percent contingency fee
provided $145,540 in revenue, half of which is $72,770.18
Plaintiff’s summary of checks drawn on the firm’s account indicates approximately
$53,799.68 in withdrawals during the firm’s representation of Dart (June 2013 through October
2014). Before giving defendant her share of the fees, plaintiff charged her for half of the
majority of these expenses (i.e., $25,379.57), so that she received $47,390.43 instead of $72,770.
In light of these charges, defendant filed a motion to enforce the judgment, under which she
requested the amount deducted by plaintiff for firm-related expenses. Judge Langton ordered
plaintiff to pay $25,379.50 to defendant to complete the transfer of 50 percent of the revenue
from the Dart case, concluding that Judge Brennan’s judgment contemplates a “gross theory of
distribution,” not a net theory that takes into account the costs deducted by plaintiff prior to the
distribution.
The thrust of plaintiff’s argument on appeal is that Judge Langton’s order requiring him
to pay $25,379.50 to defendant was inequitable because (1) he performed the vast majority of the
work on the case, (2) each party bore responsibility for all of the expenses that the firm incurred
during its representation of Dart, as no settlement could have been reached otherwise, (3) some
of the expenses were for defendant’s direct benefit, including payment of her COBRA expenses
and her bar dues, and (4) the fees paid in Dart should have been reduced in light of these
expenses before they were divided between the parties. We disagree that Judge Langton’s order
was inequitable.19
As Judge Langton noted, the divorce judgment does not define the term “revenue.”
related argument in Docket No. 330213 concerning the portions of Judge Langton’s order
involving attorney fees from the Dart case.
18
Some expenses were billed to the client and paid from an IOLTA account, but those amounts
are not at issue on appeal.
19
To the extent that plaintiff again challenges Judge Brennan’s property division on the basis
that she attributed disproportionate weight to plaintiff’s fault, we reject plaintiff’s claims for the
reasons previously discussed in this opinion. Judge Langton’s order merely effectuated Judge
Brennan’s division of property; it did not add to plaintiff’s existing burden.
-17-
Similar to our review of contract interpretation, we review de novo, as a question of law, a trial
court’s interpretation of the terms of a divorce judgment. Smith v Smith, 278 Mich. App. 198,
200; 748 NW2d 258 (2008); Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277
Mich. App. 51, 55; 744 NW2d 174 (2007). Likewise, divorce judgments are generally interpreted
in the same manner as contracts. Smith, 278 Mich. App. at 200. Accordingly, terms of a divorce
judgment are to be given their plain and ordinary meanings, and a court may consult dictionary
definitions in order to determine the plain and ordinary meaning of a term that is undefined in the
judgment. See id. at 200-201; Coates v Bastian Bros, Inc, 276 Mich. App. 498, 503; 741 NW2d
539 (2007). When the language is unambiguous, it will be construed as written. Coates, 276
Mich. App. at 503. Additionally, however, “[a] judgment of divorce is to be construed in light of
the trial court’s findings of fact and conclusions of law.” Smith, 278 Mich. App. at 200.
“Revenue” is defined as “the total income produced by a given source,” or “the gross
income received by an investment.” Merriam-Webster’s Collegiate Dictionary (11th ed).
“Income” is defined as “a gain or recurrent benefit usu[ally] measured in money that derives
from capital or labor; also: the amount of such gain received in a period of time.” Id. These
definitions do not contemplate deductions for any expenses, whether related to the source of the
income, such as payment for Carl Schwartz’s work on Dart, or other matters, such as loans to
Schwartz for unspecified reasons. Additionally, nothing in the opinion and order, or the divorce
judgment, assigns responsibility to either party for the expenses incurred by the law firm during
the Dart case. Thus, given the plain and ordinary meaning of “revenue,” we agree with Judge
Langton’s conclusion that Judge Brennan intended for the Dart-related fees to be divided on a
gross basis rather than on a net basis when she entered the judgment of divorce. See Smith, 278
Mich. App. at 200.
Additionally, plaintiff argues that defendant actually should have received less than the
$47,390.43 that he already paid her because defendant only was entitled to 50 percent of the
contingency fees pursuant to the August 29, 2014 opinion granting the divorce.20 We disagree.
As plaintiff emphasizes, the opinion granting a divorce provides:
As to the value of the law firm, Plaintiff testified as to his current
contingency fee cases. He argues that his office runs at a deficit and that he broke
even this year. (Defendant, a 50% partner in Schwartz & Oltarz-Schwartz, P.C.,
retains her interest in the firm.) To the extent that any of the cases in Exhibit Q
produce revenue in the future, Defendant shall be entitled to her 50% marital
portion of those contingency fees.
However, plaintiff fails to recognize that when both parties, following the entry of Judge
Brennan’s August 29, 2014 opinion, presented documentation of the fee structures for the
pending cases with their proposed divorce judgments, they agreed that fees from the Dart case
originated not only from a 20 percent contingency fee, but also from a $200 billable hour fee.
The language of defendant’s proposed judgment accounted for the broader fee structure
20
With regard to the Dart case, 50 percent of the 20 percent contingency fee is $45,000.
-18-
(“Defendant is awarded a 50% interest in revenue produced in the cases listed on . . . Exhibit A.”
[Emphasis added.]), while plaintiff’s proposed judgment provided a more limited fee structure
(“Defendant is awarded a 50% interest in the contingency fee revenue produced in the cases
listed on . . . Exhibit A.”). Although Judge Brennan did not specifically address this discrepancy
at the hearing before she entered the divorce judgment, it is apparent that she adopted
defendant’s broader language in her final judgment.
Additionally, contrary to plaintiff’s claims, this language appears consistent with Judge
Brennan’s August 29, 2014 opinion, as it states, “To the extent that any of the cases . . . produce
revenue in the future, Defendant shall be entitled to her 50% marital portion of those contingency
fees.” (Emphasis added.) When read in context, her use of the word “those” appears to suggest
that Judge Brennan believed when she entered the opinion—presumably due to both parties’
repeated references to “the contingency cases” throughout the trial—that all of the revenue from
those cases would be received from contingency fees, and that this belief was later undermined
by the documentation submitted by the parties with their proposed judgments. Thus, on this
record, we reject defendant’s claim that Judge Langton’s interpretation of the judgment was in
error.
Moreover, plaintiff claims that this result is inequitable because he took “money from his
own assets to make such payments . . . , and he loaned money to the firm for that purpose.” The
only evidence in the record regarding such a loan is plaintiff’s own testimony that he withdrew
money from his IRA in 2013 and 2014 for expenses associated with the law firm, as well as
marital expenses, such as the mortgage. The parties were legally married for the entirety of the
firm’s 16-month representation in Dart, except for eight days. And the IRA was a marital asset
until it was awarded to defendant in the judgment of divorce. See Cunningham, 289 Mich. App.
at 200-202. Thus, a loan from the IRA would have constituted a contribution by both plaintiff
and defendant. By awarding each party 50% of the fees without reducing the award for
expenses, plaintiff and defendant were, in effect, each repaid equally for the loan. Therefore,
plaintiff’s argument is unpersuasive.
Plaintiff argues that the order regarding the Dart fees is inequitable because he only
received either 21 or 30 percent of the fees, contrary to the order requiring a 50-50 split. As
previously mentioned, Judge Langton ruled that each party was entitled to the same amount of
fees: $72,770. Any claim that plaintiff was responsible for the firm’s expenses during the
pendency of Dart, and consequently received fewer fees, is refuted by his testimony and
argument that the expenses were paid with a loan from the IRA—a marital asset. But even if the
expenses were paid exclusively from the firm’s account, there is no evidence that the firm’s
account was anything but a product of the marriage as well.
Lastly, plaintiff argues that it was inequitable for the court not to reduce the Dart fees by
the firm’s expenses because defendant benefitted from some of the payments, including
$2,125.04 in COBRA payments for her health care between July 2013 and November 2013 and
payment of her bar dues. However, plaintiff also benefited from some of the payments by
receiving, inter alia, the payment of bar dues, office rent, and receptionist and technology fees so
he could continue the practice of law. Therefore, we are unpersuaded by plaintiff’s claim.
C. SPOUSAL SUPPORT
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Next, plaintiff raises challenges regarding the life insurance policies that the trial court
ordered him to obtain to guarantee payment of spousal support. First, to the extent that plaintiff
argues that Judge Brennan’s order in the judgment of divorce lacked clarity regarding the
requirements for the new insurance policy, Judge Langton later provided clarification when she
ordered him to obtain two $50,000 policies from Generation Insurance Company. See Barbier v
Barbier, 45 Mich. App. 402, 404; 206 NW2d 464 (1973) (“It is clear that the trial court has the
power to clarify and construe a divorce judgment as long as it effectuates no change in the
substantive rights of the parties.”).
Plaintiff also argues that “the requirement that [he] purchase life insurance policies to
insure the continuance of alimony is harsh, punitive, inequitable, and an abuse of discretion” in
light of the difficulties that he has encountered in securing coverage due to his age and medical
history. Judge Langton acknowledged in her opinion and order that plaintiff experienced
difficulties in obtaining a policy, but she ordered coverage that plaintiff had demonstrated he
could obtain. At the hearing, defendant’s attorney explained that plaintiff had produced an email
from Generation Life Insurance indicating that he could purchase a $50,000 policy and a
colleague “will get him another fifty.” Although defendant’s attorney acknowledged on the
record that the proceeds from this policy would last less than 10 years if plaintiff’s death
preceded defendant’s death, he requested that Judge Langton order plaintiff to obtain those
policies. Therefore, any argument by plaintiff on appeal that this particular coverage would be
insufficient under the terms of the judgment, or that it is impossible for him to obtain coverage in
compliance with the judgment, is meritless given defendant’s agreement to the amount of
coverage.
Likewise, plaintiff claims that Judge Langton’s order to obtain the two Generation Life
Insurance policies is inequitable because the total cost is unaffordable given his current income
and expenses. Although plaintiff asserts in his brief on appeal that his monthly obligation would
be more than $700 for the policies, plaintiff never offered any evidence to support this claim in
the trial court, and he likewise fails to support this claim on appeal. Absent any evidence
regarding the cost of the policies, we find no basis for concluding that Judge Langton’s order
was inequitable.
D. $5,000 WITHDRAWAL
On January 8, 2014, Judge Brennan ordered plaintiff to pay the mortgage, taxes, and
insurance for the marital home, but ordered the parties to otherwise “pay their own other
expenses until further order.” On June 13, 2014, the trial court entered an order adjourning the
trial and prohibiting liquidation of the parties’ IRAs, “except in the ordinary course of business
to maintain the status quo . . . .” In August 2014, plaintiff withdrew $5,000 from his IRA. Later,
in her motion to enforce the judgment, defendant claimed that plaintiff improperly removed the
$5,000 and requested repayment. Subsequently, in her September 18, 2015 order, Judge Langton
ordered plaintiff to reimburse defendant for the $5,000 withdrawn from the IRA. In particular,
Judge Langton found plaintiff’s explanation regarding the expenditures to be vague and unclear,
concluding that she was unable to determine from the evidence presented “where the money was
deposited or whether it was used to maintain the status quo of the parties.”
On appeal, plaintiff claims that Judge Langton’s order is inequitable because his
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withdrawal from the IRA was consistent with Judge Brennan’s status quo order. We disagree.
Consistent with Judge Langton’s findings, our review of the record confirms that plaintiff
failed to provide the court with bank statements showing the transfer of $5,000 to an account
with debits for subsequent expenses. He only proffered a chart that he created which listed
payments to various companies and organizations, without any descriptions of the products or
services obtained, that exceeded $5,000 in August and September 2014, and he claimed that the
$5,000 from the IRA was used to pay for those expenses. Although plaintiff claims on appeal
that some of these expenses were made in the ordinary course of business to maintain the status
quo—and were, therefore, consistent with Judge Brennan’s order—he did not offer any proof in
the trial court, such as invoices or even his own affidavit, that these payments were related to
ordinary expenses that he or defendant incurred (as opposed to someone else). See In re Rudell
Estate, 286 Mich. App. at 405. Interestingly, plaintiff argues that he made payments on his credit
card balances to avoid the destruction of his credit so he could then use the cards for ordinary
expenses, but he does not offer proof, or even claim, that those particular credit card expenses
were incurred in the ordinary course of business.
Given the trial court’s findings regarding plaintiff’s history of dissipating marital assets
for a third party and his attempts, even at trial, to conceal that spending, we are not convinced
that Judge Langton clearly erred in finding that plaintiff failed to substantiate this withdrawal.
Absent proof that the $5,000 was withdrawn in the ordinary course of business to maintain the
status quo, the order requiring plaintiff to repay $5,000 to defendant was not inequitable.
VII. ATTORNEY FEES ON APPEAL
Finally, in Docket Nos. 324555, 330031, and 330213, defendant seeks attorney fees, or
states an intention to file a motion for attorney fees, upon the conclusion of this appeal. Under
MCR 7.216(C)(1), a party may move for actual and punitive damages or other disciplinary action
as provided under MCR 7.211(C)(8). Defendant’s notations in her briefs on appeal are
ineffectual, as they are not a proper substitute for the requisite motion. MCR 2.111(C)(8); Fette
v Peters Const Co, 310 Mich. App. 535, 553-554; 871 NW2d 877 (2015).
Pursuant to MCR 7.211(C)(8), defendant may file a motion requesting damages or other
disciplinary action “at any time within 21 days after the date of the order or opinion that disposes
of the matter that is asserted to have been vexatious.” Thus, we deny defendant’s current request
without prejudice. Fette, 310 Mich. App. at 554.
VIII. CONCLUSION
In Docket Nos. 324555 and 330031, we affirm the judgment of divorce and the
postjudgment order granting in part defendant’s motion to enforce the divorce judgment.
However, in Docket No. 330213, we vacate Judge Langton’s order regarding attorney fees and
remand for further proceedings for the reasons stated in this opinion.
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Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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