James Putnam Dean v. Frances Joyce Dean ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JAMES PUTNAM DEAN, UNPUBLISHED
May 18, 2023
Plaintiff-Appellee,
v Nos. 359888; 361524
Oakland Circuit Court
FRANCES JOYCE DEAN, LC No. 1998-603993-DO
Defendant-Appellant.
Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
Defendant appeals the trial court’s postjudgment order terminating plaintiff’s spousal
support obligation and denying defendant’s request for attorney fees. In Docket No. 359888,
defendant appeals as of right the portion of the order denying her request for attorney fees. In
Docket No. 361524, defendant appeals by delayed leave granted the portion of the order
terminating plaintiff’s spousal support obligation.1 We affirm.
I. FACTS AND PROCEEDINGS
This case arises from plaintiff’s September 2021 motion to terminate spousal support
because of his impending retirement later that year. The parties divorced in 1998 and, pursuant to
a consent judgment of divorce, plaintiff initially paid defendant $4,200 a month in spousal support
and contributed to defendant’s out-of-pocket prescription medication costs. In 2012, plaintiff
moved to modify spousal support and his obligation was reduced to $2,850 a month and a $1,000
yearly cap was placed on the contribution to defendant’s prescription medication costs. In 2021,
plaintiff filed the present motion seeking to terminate his spousal support obligation. Defendant
opposed the motion and requested that plaintiff contribute to her attorney fees incurred in
defending the motion. After an evidentiary hearing, the trial court granted the motion to terminate
1
Dean v Dean, unpublished order of the Court of Appeals, entered November 9, 2022 (Docket
No. 361524).
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spousal support and denied defendant’s request for attorney fees. Defendant also moved for
reconsideration, which the trial court denied. These appeals followed.
II. DOCKET NO. 359888
Defendant argues that the trial court abused its discretion by denying her request for
attorney fees. We disagree.
This Court reviews “a trial court’s ruling on a request for attorney fees for an abuse of
discretion. An abuse of discretion occurs when the trial court’s decision falls outside the range of
reasonable and principled outcomes.” Smith v Smith, 278 Mich App 198, 207; 748 NW2d 258(2008) (citations omitted).
“Michigan follows the ‘American Rule,’ which states that ‘attorney fees are not
recoverable as an element of costs or damages unless expressly allowed by statute, court rule,
common-law exception, or contract.’ In a divorce action, attorney fees are permitted by statute
and court rule.” Skaates v Kayser, 333 Mich App 61, 84; 959 NW2d 33 (2020) (citations omitted).
Defendant requested a contribution toward her attorney fees under MCR 3.206(D), which
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, including the
expense of engaging in discovery appropriate for the matter, and that the other party
is able to pay, or
(b) the attorney fees and expenses were incurred because the other party
refused to comply with a previous court order, despite having the ability to comply,
or engaged in discovery practices in violation of these rules.
At issue here is whether defendant was entitled to attorney fees under MCR 3.206(D)(2)(a).
In her evidentiary hearing brief, defendant alleged that payment of her attorney fees would
require her to draw from her life savings and that plaintiff had substantially more resources.
Defendant, however, did not present any evidence regarding her attorney fees at the evidentiary
hearing. The trial court denied her request on the ground that defendant failed to provide any
evidence and, thus, had abandoned the request.
On appeal, defendant argues that the evidence presented at the hearing established her
inability to pay and plaintiff’s ability to pay, and if the trial court had made a finding on the basis
of the evidence, she would have presented evidence regarding the reasonableness of the requested
fees.
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In Skaates, 333 Mich App at 85, the defendant similarly alleged in his trial brief that he
was unable to pay the costs associated with litigation, but at the final divorce hearing he “failed to
offer any evidence outlining the details of his attorney fees, such as hourly rate, number of hours
worked, and the experience level of his attorney.” This Court concluded that the defendant “bore
the burden of submitting sufficient facts to justify the award, and the trial court did not abuse its
discretion by determining that defendant failed to satisfy his burden.” Id. at 85-86 (citation
omitted).
In this case, defendant bore the burden of submitting sufficient facts to justify the award of
attorney fees. She presented no documentation to support her attorney fee request at the
evidentiary hearing. Indeed, she never even disclosed the amount of her attorney fees, either at
the evidentiary hearing, in her evidentiary hearing brief in which she requested attorney fees, or in
her motion for reconsideration. To the extent that defendant argues that the evidence at the
evidentiary hearing demonstrated that plaintiff had a greater financial ability to pay her attorney
fees, the court rule also required defendant to demonstrate that she “is unable to bear the expense
of the action.” MCR 3.206(D)(2)(a). Both parties had retired and their monthly expenses exceeded
their monthly retirement incomes, but both parties also had access to various retirement and
savings accounts. But because defendant did not present any evidence of the amount of her
attorney fees, there is no basis to determine that she lacked the ability to pay her unspecified
attorney fees. Thus, she failed to satisfy her burden and the trial court did not abuse its discretion
by denying her request.2
III. DOCKET NO. 361524
Defendant also argues that the trial court abused its discretion by terminating spousal
support. We disagree.
This Court reviews for clear error a trial court’s factual findings related to an award of
spousal support. Lueck v Lueck, 328 Mich App 399, 404; 937 NW2d 729 (2019). “A finding is
clearly erroneous if, after a review of the record, we are left with a definite and firm conviction
that the trial court made a mistake.” Id. This Court reviews for an abuse of discretion the trial
court’s ultimate ruling regarding spousal support and “[t]he trial court’s dispositional ruling must
be affirmed unless the appellate court is firmly convinced that it was inequitable.” Berger v
Berger, 277 Mich App 700, 727; 747 NW2d 336 (2008).
“A trial court may modify spousal support on the basis of new facts or different
circumstances arising after entry of the divorce judgment. The burden is on the party seeking
modification to establish that the new facts or changed circumstances warrant modification.”
Lueck, 328 Mich App at 405 (citations omitted). “If the court finds that a party has established a
change in circumstances, it must then make factual findings from which to conclude whether the
alimony should be modified and, if so, by what amount.” Luckow v Luckow, 291 Mich App 417,
2
Although the trial court denied the request on the basis that defendant abandoned her request for
attorney fees, it reached the correct result. See Kelley v Gen Motors, LLC, 335 Mich App 349,
368-369; 966 NW2d 716 (2021) (affirming the lower court’s judgment even though it was based
on a different rationale).
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424; 805 NW2d 453 (2011) (quotation marks and citation omitted). As this Court explained in
Luckow, a court considers the following factors in awarding spousal support:
(1) the past relations and conduct of the parties, (2) the length of the marriage, (3)
the abilities of the parties to work, (4) the source and amount of property awarded
to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony,
(7) the present situation of the parties, (8) the needs of the parties, (9) the parties’
health, (10) the prior standard of living of the parties and whether either is
responsible for the support of others, and (11) general principles of equity. [Id.
(quotation marks and citation omitted).]
“The object in awarding spousal support is to balance the incomes and needs of the parties so that
neither will be impoverished; spousal support is to be based on what is just and reasonable under
the circumstances of the case.” Berger, 277 Mich App at 726.
Preliminarily, defendant does not dispute that plaintiff’s retirement constituted a change in
circumstances. Rather, she argues that the trial court improperly terminated, rather than modified,
spousal support. Defendant first contends that the trial court improperly focused on the total
amount of spousal support that plaintiff had paid since the divorce. The trial court did indeed rely
on its finding that plaintiff had paid almost $1 million in total spousal support since the divorce as
a factor in its decision. This figure was supported by plaintiff’s testimony at the evidentiary
hearing and not disputed by defendant. While the amount of spousal support is not an enumerated
factor, it may be relevant to “general principles of equity.” Luckow, 291 Mich App at 424. Thus,
the trial court did not necessarily err by considering this factor. The trial court did not terminate
spousal support on this basis alone, and, contrary to defendant’s argument, there is no indication
that the court placed undue weight on this factor.
Defendant also argues that the trial court incorrectly believed that it had a binary choice
between continuing the $2,850 monthly payment and termination. The trial court’s opinion shows
that it did not consider its decision to be a binary choice between continuing the current level of
spousal support or terminating spousal support. The trial court stated that the relevant factors that
must be assessed in order to determine “what, if any, spousal support award is appropriate[.]”
After considering the relevant factors, the court concluded: “The intent of this Court is to provide
for a result which mirrors the parties’ intentions, and the Court further seeks to place the parties in
parity with one another. Short of terminating the current spousal support award, the Court cannot
achieve that goal.” These statements make clear that the trial court did not consider its decision as
a binary choice between continuing the current level of spousal support or terminating spousal
support. Rather, it considered whether any amount of spousal support was appropriate and found
that termination was the appropriate option.
Defendant asserts that complete termination of spousal support is “cruel” given her
medical needs. The trial court, however, made detailed findings regarding defendant’s health and
“ongoing difficulties.” The court further acknowledged that the parties’ daughter provided
assistance to defendant and that if she did not provide such assistance, “a care provider would need
to be retained at considerable expense.” Defendant’s testimony did not establish that her medical
conditions and needs had caused any significant financial hardship at that time. Plaintiff’s attorney
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acknowledged at the hearing that spousal support could be modified in the future if circumstances
changed.
In her brief on appeal, defendant also asserts that plaintiff admitted that continuing the
same level of spousal support would not have had any effect on his lifestyle. In response, plaintiff
argues that he will be forced to tap into his retirement assets. In her reply brief on appeal, defendant
asserts that only the source of plaintiff’s income had changed. Defendant relies on Ackerman v
Ackerman, 197 Mich App 300, 303; 495 NW2d 173 (1992), in which this Court explained that the
defendant’s receipt of proceeds under a disability insurance policy bore directly on his ability to
pay spousal support and the trial court’s finding that there was no change of circumstances was
clearly erroneous. This Court has similarly concluded that to prove a change in circumstances, a
party must “show a change in the resources available to him for living expenses.” Stoltman v
Stoltman, 170 Mich App 653, 659; 429 NW2d 220 (1988). These cases, however, relate to the
determination of whether there exists a change in circumstances, which is not at issue in this case.
Nonetheless, a reduction in income does not mandate a reduction in spousal support. See Andrusz
v Andrusz, 320 Mich App 445, 459; 904 NW2d 636 (2017).
In this case, the trial court found that both parties would have to use their savings to
supplement their income in order to cover their monthly expenses. However, it found that if forced
to continue paying spousal support at the current level, plaintiff would deplete his savings at a
much higher rate. On the basis of the trial court’s findings regarding the parties’ assets, income,
and expenses, which defendant does not challenge on appeal, the trial court’s finding that plaintiff
would deplete his resources at a faster rate than defendant is not clearly erroneous. Given that
defendant’s arguments otherwise lack merit, the trial court’s decision is not inequitable.
Accordingly, we affirm the court’s decision.
Affirmed in Docket Nos. 359888 and 361524.
/s/ Sima G. Patel
/s/ Mark J. Cavanagh
/s/ James Robert Redford
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