Jeffrey William Kidder v. Laura Sue Pobursky-Kidder ( 2024 )

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
JEFFREY WILLIAM KIDDER, FOR PUBLICATION
February 22, 2024
Plaintiff-Appellant, 9:00 a.m.
No. 365527
Oakland Circuit Court
LAURA SUE POBURSKY-KIDDER, LC No. 2010-776877-DM
Defendant-Appellee.
Before: PATEL, P.J., and K. F. KELLY and RIORDAN, JJ.
PATEL, P.J.
Plaintiff appeals as of right the trial court’s opinion and order awarding defendant
$57,008.90 in attorney fees in this postjudgment divorce action. We affirm.
I. BACKGROUND
The trial court determined that several pleadings filed by plaintiff were not well grounded
in fact and were intended to falsely lead the court to believe that a reduction in his child support
obligations was necessary. The trial court sanctioned plaintiff under MCR 1.109(E)(6) and ordered
him to pay defendant’s expert witness fees and her attorney fees. Plaintiff appealed the trial court’s
decision, and we affirmed it. See Kidder v Pobursky-Kidder, unpublished per curiam opinion of
the Court of Appeals, issued September 22, 2022 (Docket Nos. 356297 & 357908). Our prior
opinion summarizes the relevant background related to this appeal:
The parties divorced in 2011. The October 2011 consent judgment awarded
the parties joint legal and physical custody of their three minor children. And
plaintiff was ordered to pay monthly child support.
On February 6, 2018, plaintiff filed a pro se motion seeking a modification
of the existing child support order based on a change in circumstances. In addition
to a change involving one of the three children, plaintiff maintained that he had a
change in income:
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The second change of circumstances is that I am out of a job
currently. I am working on obtaining a job to support my family.
There is no way I can obtain a salary of the one I previously had. So
I am requesting my income level to change the formula to calculate
child support.
At the motion hearing, plaintiff testified that he had been self-employed at
his family’s engineering business, Kidder Associates, of which he was a 49%
owner. But plaintiff maintained that his brother, who owned 51% of the business,
had terminated his employment with a three-month severance package. Plaintiff
claimed that his income from Kidder Associates would cease at the end of March
2018, but he was in negotiations for a buyout of his 49% ownership interest.
Plaintiff also testified that he invested in two residential homes that he intended to
sell for a profit. The [Friend of the Court (“FOC”)] referee imputed income to both
parties and recommended that neither party pay child support.
In June 2019, defendant filed a motion to modify plaintiff’s child support
obligation, alleging that, contrary to his February 2018 motion and March 2018
testimony, plaintiff continued to receive his full salary from Kidder Associates until
December 31, 2018. Defendant further alleged that plaintiff had income from real
estate sales and rental properties. Plaintiff contested defendant’s accusations,
asserting that he was a full-time student working on a masters’ degree and
“commencing in 2019, [he] no longer receives an income or funds from Kidder
Associates.” The FOC referee recommended that defendant be afforded an
opportunity to conduct discovery.
After serving a series of subpoenas to investigate plaintiff’s financial
background, defendant filed a motion for retroactive modification of child support
in March 2020. Defendant accused plaintiff of committing perjury because,
contrary to his pleadings and testimony, he had allegedly received his regular
income from Kidder Associates until November 2019. She further maintained that,
beginning in 2014, plaintiff received periodic disbursements from Kidder
Associates in addition to his regular salary. But none of these disbursement[s] were
previously disclosed by plaintiff. Defendant requested the opportunity to conduct
additional discovery on the issue of retroactive child support. She argued that
plaintiff should be sanctioned and ordered to pay her expert witness fees and
attorney fees. In response, plaintiff denied that he received his regular monthly
income in 2019 and maintained that the 2019 payments were used to offset the
amounts due plaintiff pursuant to a November 2019 settlement agreement with
Kidder Associates. He further asserted that the disbursements he had periodically
received in addition to his regular salary were for his corporate income tax
obligations and were not personal income.
The trial court referred the matter to the FOC referee for an evidentiary
hearing. The evidentiary hearing began on August 20, 2020, but the hearing was
stopped before the conclusion of plaintiff’s testimony due to time constraints. Prior
to the continuation of the evidentiary hearing, defendant filed two motions to
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compel production of plaintiff’s tax returns and W-2 forms. Defendant maintained
that this documentation was necessary to adequately prepare for the continuation
of the evidentiary hearing. The trial court ordered plaintiff to produce his tax
returns for the previous three years and expressed that it would consider requiring
plaintiff to produce additional tax returns with a showing of good cause. After
plaintiff complied with the order, defendant filed a motion to compel production of
plaintiff’s tax returns back to 2011, arguing that the information was highly relevant
to calculating plaintiff's retroactive child support payments. Defendant also
renewed her request for expert witness fees and attorney fees.
Following the November 5, 2020, hearing on defendant’s motion to compel,
the trial court entered an order (1) directing the FOC referee to continue the
evidentiary hearing regarding retroactive child support to be paid by plaintiff for
the time period prior to 2019, (2) instructing the FOC referee to calculate the
amount of retroactive support from 2019 to the present, (3) awarding defendant fees
for a financial expert, (4) awarding defendant attorney fees incurred since 2019,
and (5) reserving the issue of production of additional tax returns and further
retroactivity of child support modifications upon good cause shown. Plaintiff
moved for reconsideration, but the trial court denied the motion. Plaintiff now
challenges portions of the trial court’s order in these consolidated appeals. [Kidder,
unpub op at 1-2.]
Although we affirmed the trial court’s decision to award defendant her attorney fees
incurred since 2019, we declined to address plaintiff’s argument that the requested amount of
attorney fees was unreasonable because “the trial court has not yet determined the amount of
attorney fees to award and expressly stated that defendant would be required to prove the
reasonableness of any requested fees in accordance with the factors set forth in Wood v DAIIE,
413 Mich 573, 581; 321 NW2d 653 (1982).” Kidder, unpub op at 7 n 5.
While Kidder was pending, the trial court conducted proceedings to determine a reasonable
attorney-fee award. Defendant filed a 24-page bill of costs that contained an itemized listing of
her attorneys’ legal services and the rates charged for those services. Plaintiff filed objections to
defendant’s bill of costs, generally challenging several of the charges on the ground that they were
“exaggerated, excessive, and unreasonable,” and requested an evidentiary hearing. At the March
2021 hearing, plaintiff again objected that many of the listed charges were “exaggerated,
excessive, and unreasonable” and claimed that he did not understand some of the charges. The
trial court repeatedly offered plaintiff’s counsel an opportunity to question defendant’s attorneys
under oath regarding the charges.1 But plaintiff’s counsel declined these offers, indicating that his
principal disagreement was with the trial court’s decision to sanction plaintiff in the first instance.
Ultimately, plaintiff’s counsel requested the trial court to defer its decision on a reasonable
attorney-fee award until after this Court resolved plaintiff’s challenge to the award of sanctions.
Plaintiff’s counsel maintained he would rely on his arguments made during the March 2021
hearing and plaintiff’s filed response to defendant’s bill of costs if this Court affirmed the trial
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Both of defendant’s attorneys were present at the hearing and available for questioning.
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court’s imposition of sanctions. Defendant stipulated to a brief deferment, and the trial court
agreed to reserve its decision until after this Court issued its opinion in the pending appeal.
Following this Court’s decision in Kidder, the case returned to the trial court, which
revisited the issue of a reasonable attorney-fee award. Defendant was granted an opportunity to
file supplemental affidavits from her attorneys in support of her fee request. Plaintiff was granted
an opportunity to file supplemental objections to address any new matters raised in defendant’s
filings, but did not do so. The trial court found that the rates charged by defendant’s attorneys
were commensurate with the rates customarily charged by attorneys in the same locality with
similar experience. The trial court further determined that the number of hours spent by
defendant’s attorneys were reasonable, with some minor exceptions. The court reduced
defendant’s requested fees of $57,221.40 by $212.50, resulting in an award of $57,008.90.
Plaintiff now appeals.
II. ANALYSIS
Plaintiff argues that the trial court erred by failing to determine a reasonable attorney-fee
award under the framework articulated by our Supreme Court in Smith v Khouri, 481 Mich 519,
530; 751 NW2d 472 (2008) (opinion of TAYLOR, C.J.) and Pirgu v United Servs Auto Ass’n, 499
Mich 269, 281-282; 884 NW2d 257 (2016). We disagree.
We review a trial court’s award of attorney fees for an abuse of discretion. Kostreva v
Kostreva, 337 Mich App 648, 673; 976 NW2d 889 (2021). “An abuse of discretion occurs when
the trial court’s decision is outside the range of reasonable and principled outcomes.” Pirgu, 499
Mich at 274. A trial court’s factual findings underlying an award of attorney fees are reviewed for
clear error. Colen v Colen, 331 Mich App 295, 300; 952 NW2d 558 (2020). A finding is clearly
erroneous when this Court is left with a definite and firm conviction that a mistake has been made.
Id.The party requesting attorney fees has the burden of proving the reasonableness of the
requested fees. Smith, 481 Mich at 528-529 (opinion by TAYLOR, C.J.). “The fee applicant bears
the burden of supporting its claimed hours with evidentiary support” and “[i]f a factual dispute
exists over the reasonableness of the hours billed or hourly rate claimed by the fee applicant, the
party opposing the fee request is entitled to an evidentiary hearing to challenge the applicant’s
evidence and to present any countervailing evidence.” Id. at 532.
In Pirgu, our Supreme Court explained that a court “must begin its analysis by determining
the reasonable hourly rate customarily charged in the locality for similar services.” Pirgu, 499
Mich at 281. The trial court “must then multiply that rate by the reasonable number of hours
expended in the case to arrive at a baseline figure.” Id. In determining whether the number of
hours expended is reasonable, the trial court “should exclude excessive, redundant or otherwise
unnecessary hours regardless of the attorneys’ skill, reputation or experience[].” Smith, 481 Mich
at 532 n 17 (opinion by TAYLOR, C.J.) (cleaned up). With respect to determining both the rate and
hours, a trial court is “obliged to make an independent determination with regard to a reasonable
amount of fees.” Mich Tax Mgt Servs Co v Warren, 437 Mich 506, 511; 473 NW2d 263 (1991).
“Thereafter, the trial court must consider all of the remaining Wood and MRPC 1.5(a) factors to
determine whether an up or down adjustment is appropriate.” Pirgu, 499 Mich at 281.
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The Pirgu Court recognized that its decision in Smith required trial courts to consult two
different lists of factors that contain “significant overlap,” which “unnecessarily complicates the
analysis and increases the risk that courts may engage in incomplete or duplicative consideration
of the enumerated factors.” Id. Accordingly, the Court distilled the remaining Wood and MRPC
1.5(a) factors into the following list to assist trial courts in their analysis:
(1) the experience, reputation, and ability of the lawyer or lawyers
performing the services,
(2) the difficulty of the case, i.e., the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly,
(3) the amount in question and the results obtained,
(4) the expenses incurred,
(5) the nature and length of the professional relationship with the client,
(6) the likelihood, if apparent to the client, that acceptance of the particular
employment will preclude other employment by the lawyer,
(7) the time limitations imposed by the client or by the circumstances, and
(8) whether the fee is fixed or contingent. [Id. at 281-282.]
The Court held that these factors are not exclusive, and a trial court may consider any additional
relevant factors. Id. at 282. To facilitate appellate review, a trial court should briefly discuss its
view of each factor on the record and justify the relevance and use of any additional factors. Id.In this case, plaintiff first challenges the trial court’s determination that the hourly rates
charged by defendant’s attorneys, William Berlin and Joseph Yaccarino, were consistent with fees
customarily charged in the locality for similar legal services. “The burden is on the fee applicant
to produce satisfactory evidence—in addition to the attorney’s own affidavits—that the requested
rates are in line with those prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.” Smith, 481 Mich at 531 (opinion by
TAYLOR, C.J.) (cleaned up). A fee applicant “must present something more than anecdotal
statements to establish the customary fee for the locality.” Id. at 532. “The fees customarily
charged in the locality for similar legal services can be established by testimony or empirical data
found in surveys and other reliable reports.” Id. at 531-532.
The record discloses that Berlin charged an hourly rate of $350, which increased to $400
an hour after November 1, 2020, and Yaccarino charged an hourly rate of $150, which increased
to $200 an hour after September 1, 2020. Preliminarily, plaintiff fails to address the trial court’s
finding that he stipulated to the reasonableness of Berlin’s $350 rate at the March 10, 2021 hearing.
At that hearing, plaintiff’s counsel stated: “Mr. Berlin who’s a good lawyer, who’s a fine lawyer,
I’m not disputing what he charges at $350 an hour.” The trial court found that this statement only
addressed Berlin’s $350 hourly rate and thus Berlin’s increased rate and Yaccarino’s rates were
not subject to any agreement. Despite this stipulation, the trial court asserted that it has a
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“responsibility to determine the reasonableness of the hourly rate” and thus it evaluated the
reasonableness of Berlin’s $350 hourly rate in addition to the reasonableness of Berlin’s increased
rate and Yaccarino’s rates.
Plaintiff argues that defendant’s attorneys did not satisfy their burden of establishing the
reasonableness of their requested rates because “they clearly did not provide any calculations,
relevant facts to demonstrate their experience, or support for the rates they charge.” He asserts
that the trial court abused its discretion by “simply relying on Mr. Berlin and Mr. Yaccarino’s
purported reasonable rates,” “without any meaningful analysis of . . . [the] charged rate[s].” The
record does not support these arguments. Further, because plaintiff’s counsel stated that he was
not contesting Berlin’s $350 hourly rate, plaintiff waived any challenge to the reasonableness of
Berlin’s rate. See Adair v Michigan, 497 Mich 89, 104; 860 NW2d 93 (2014) (recognizing that
waiver is the intentional relinquishment of a known right).
Contrary to plaintiff’s argument, defendant’s bill of costs was supported by affidavits from
Berlin and Yaccarino that summarized their practice areas, years of experience, and rates charged,
and also referenced the 2020 Economics of Law Practice (ELP) publication by the State Bar of
Michigan.2 Plaintiff argued that the ELP demonstrated that her attorneys’ rates were within the
appropriate ranges customarily charged by attorneys in the locality with similar experience. On
remand, Berlin and Yaccarino filed similar affidavits asserting that the amounts charged were
based on actual time spent litigating this action between May 2019 and December 2020, and again
asserting that the rates were within the appropriate ranges customarily charged by attorneys in the
location with similar experience, as supported by the 2020 ELP publication. The trial court granted
plaintiff an opportunity to file a response to these affidavits, but he did not file any objections or
otherwise respond to the affidavits.
Although plaintiff did not object to the rates and expressly conceded that Attorney Berlin’s
$350 hourly rate was reasonable, the trial court did not simply accept the rates offered by
defendant’s attorneys as reasonable. The trial court independently analyzed the requested rates
and the 2020 ELP, and it found that the ELP supported defendant’s claim that the requested rates
were consistent with the rates customarily charged in the locality by attorneys with similar
experience. Plaintiff has not demonstrated that the trial court erred by determining that the rates
charged by defendant’s attorneys were reasonable.
Having determined that the rates charged by defendant’s attorneys were reasonable, the
next step in the trial court’s analysis was to multiply those hourly rates by the reasonable amount
of hours expended in the case. Pirgu, 499 Mich at 281; Smith, 481 Mich at 531 (opinion by
TAYLOR, C.J.). The trial court observed that plaintiff raised objections to charges for several
services, but most of the objections simply asserted that various charges were “exaggerated,
excessive, and unreasonable.” The court stated that plaintiff “offered no factual or legal basis for
the conclusions he argued.” The court attempted to address some of plaintiff’s specific objections,
but found that his failure to exercise the opportunity to question defendant’s attorneys about
2
In Smith, 481 Mich at 530-531 (opinion by TAYLOR, C.J.), our Supreme Court noted that surveys
such as the ELP publication are an appropriate resource to consult in determining the fee
customarily charged in the community for similar legal services.
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specific services at an evidentiary hearing precluded him from demonstrating factual support for
his position that some of the charges were unreasonable. After considering plaintiff’s objections,
the trial court found that, but for some minor exceptions, all of the hours expended were
reasonable. The court summarized its analysis by stating:
Plaintiff’s Objections are largely undeveloped and leave this Court without
a factual or legal basis to analyze them. Plaintiff did not take the opportunity to
question Defendant’s counsel, nor elaborate on his Objections on March 10, 2021.
* * *
Defendant’s requested sum is large. Had this matter been less complicated,
Defendant’s sum may be unreasonable. Here, Defendant filed the 2019 Support
Motion to reconcile Plaintiff’s material misrepresentation of fact in the 2018
Support Motion. Plaintiff further complicated these proceedings by again
misrepresenting a material fact. Plaintiff then engaged in a litigation strategy that
caused delay and required this Court’s intervention. Plaintiff’s conduct increased
the costs of litigation in this matter.
The Court finds that the fees sought by Defendant are reasonable as stated
above. The Court also finds that the number of hours spent is reasonable.
Defendant’s efforts to litigate this matter to resolution have been consistent and
proportionate to the obstacles that Plaintiff has placed in her way. The Court finds
that the hours and rates, as adjusted above, are reasonable.
On appeal, plaintiff complains that the descriptions of services in defendant’s bill of costs
lacked sufficient detail to accurately describe the various services, which he contends necessarily
prevented the trial court from finding that the charges were reasonable. He also challenges various
charges as unnecessary and unreasonable, and argues that they are difficult to understand without
more context and information. We disagree that defendant failed to satisfy her initial burden under
Smith to submit detailed billing records in support of her requested attorney fees. Defendant
submitted a 24-page bill of costs that contained itemized descriptions of the various legal services,
a general description of the services performed on each date, the number of hours spent on each
activity, and the rates charged for each service. This bill of costs was sufficient to inform plaintiff
of the factual bases for the various charges. To the extent that plaintiff disagreed with the necessity
of some of the services or the time spent performing various services, these were issues to be
explored at an evidentiary hearing. As the trial court observed, plaintiff was repeatedly given the
opportunity to address the reasonableness of any contested charge at the March 10, 2021 hearing,
but his counsel informed the court that he was not seeking an evidentiary hearing, he declined the
opportunity to question defendant’s attorneys regarding the reasonableness of the services
performed or the hours that were billed, and he did not present any countervailing evidence to
otherwise undermine counsel’s itemized billings. The trial court did not clearly err by finding that
contested charges were not objectively unreasonable and that, by declining the opportunity for an
evidentiary hearing at which plaintiff could question defendant’s attorneys regarding specific
charges, plaintiff failed to demonstrate that the charges were unreasonable.
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Defendant’s bill of costs also sought recovery of copying, postage, and filing fees totaling
$308.40. Plaintiff argues that it was improper to award defendant her costs because the trial court’s
December 17, 2020 order only awarded her “reasonable attorney fees,” and not costs, as a sanction
under MCR 1.109. But plaintiff did not object to any of these costs in his objections to defendant’s
bill of costs or raise any arguments to these costs at the March 2021 hearing. “In civil cases,
Michigan follows the ‘raise or waive’ rule of appellate review.” Tolas Oil & Gas Exploration Co
v Bach Servs & Mfg, LLC, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 359090);
slip op at 3. A litigant must raise an issue in the trial court to preserve it for appellate review. Id.at ___; slip op at 3. As we explained in Jawad A Shah, MD, PC v State Farm Mut Auto Ins Co,
324 Mich App 182, 194; 920 NW2d 148 (2018), a party “may not remain silent in the trial court
and then hope to obtain appellate relief on an issue that [he or she] did not call to the trial court’s
attention.” Because plaintiff failed to object to the inclusion of costs in defendant’s bill of costs,
either on the ground that they were unreasonable or that they were outside the scope of the trial
court’s December 17, 2020 order, the issue is unpreserved. We find that the circumstances of this
case do not warrant our review of this unpreserved issue.3
Plaintiff further argues that even if the trial court calculated a reasonable baseline figure in
accordance with Smith/Pirgu, it erroneously considered the Smith/Pirgu factors to determine that
a deviation from that figure was justified. The trial court did not deviate from its baseline figure.
In accordance with Smith/Pirgu, the court determined that the rates charged by defendant’s
attorneys were consistent with the fees customarily charged in the locality by attorneys with similar
experience. The court then determined that the number of hours billed was reasonable, but for
some minor adjustments. Accounting for those adjustments, the court arrived at a baseline amount
of $57,008.90. The trial court examined each of the Smith/Pirgu factors and determined that there
was no factual or legal basis to reduce or increase the amount. The court’s findings regarding the
Smith/Pirgu factors are supported by the record, and none of those findings compel a conclusion
that a downward deviation was warranted.
Affirmed.
/s/ Sima G. Patel
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
3
We will generally decline to address an unpreserved issue unless the failure to do so would result
in manifest injustice, if the issue involves a question of law and the facts necessary for its resolution
have been presented, or resolving the issue is necessary to properly determine the case. Miller v
Mich Dep’t of Corrections, 343 Mich App 104, 119; 996 NW2d 738 (2022). Our Supreme Court
has cautioned that this discretion should be exercised sparingly and only in exceptional
circumstances. Napier v Jacobs, 429 Mich 222, 233-234, 414 NW2d 862 (1987).
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