Zaid Safdar v. Donya Aziz

STATE OF MICHIGAN
COURT OF APPEALS
ZAID SAFDAR, UNPUBLISHED
March 13, 2018
Plaintiff-Appellee,
v No. 336590
Oakland Circuit Court
DONYA AZIZ, LC No. 2016-839363-DM
Defendant-Appellant.
Before: TALBOT, C.J., and BECKERING and CAMERON, JJ.
PER CURIAM.
Defendant, Donya Aziz, appeals as of right a judgment of divorce entered by the Oakland
Circuit Court. The sole issue raised in this appeal is whether the trial court erred by denying
Aziz’s request for payment of her attorney fees. We affirm.
A trial court’s ruling regarding attorney fees in a divorce action is reviewed for an abuse
of discretion, which occurs “when the result falls outside the range of principled outcomes.”1
The trial court’s findings of fact are reviewed for clear error.2 “A finding is clearly erroneous if
we are left with a definite and firm conviction that a mistake has been made.”3
In domestic relations actions, the trial court is authorized by statute to order a party “to
pay any sums necessary to enable the adverse party to carry on or defend the action . . . .”4
Likewise, pursuant to MCR 3.206(C),
1
Richards v Richards, 310 Mich. App. 683, 699; 874 NW2d 704 (2015).
2
Id. at 700.
3
Id., quoting Gates v Gates, 256 Mich. App. 420, 422-423; 664 NW2d 231 (2003) (quotation
marks omitted).
4
Cassidy v Cassidy, 318 Mich. App. 463, 480; 899 NW2d 65 (2017), quoting MCL 552.13(1)
(quotation marks omitted).
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(1) A party may, at any time, request that the court order the other party to
pay all or part of the attorney fees and expenses related to the action or a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts
sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other
party is able to pay . . . .
The party seeking payment of attorney fees bears the burden of demonstrating his or her
entitlement to an award of fees.5
On appeal, Aziz argues that the trial court erred by failing to award attorney fees despite
the vast disparity in the parties’ income and evidence that she was unable to pay the balance
owed to her attorney, while plaintiff, Zaid Safdar, has the ability to so. In support of her
position, Aziz relies almost exclusively on this Court’s opinion in Stallworth v Stallworth,
wherein we affirmed the trial court’s decision to award attorney fees to the plaintiff, based on the
following reasoning:
Because plaintiff’s yearly income is less than the amount she owed her attorney,
she sufficiently demonstrated her inability to pay her attorney fees. Furthermore,
defendant earns more than double what plaintiff earns in a year, which
demonstrated his ability to contribute to plaintiff’s attorney fees. Under these
circumstances, the trial court’s ruling was within the range of reasonable and
principled outcomes.[6]
Since Stallworth was decided in 2007, it has occasionally been cited for the proposition that a
party has always demonstrated an inability to pay attorney fees if his or her annual income is less
than the amount owed.7 But more recently, this Court has clarified that its explanation in
Stallworth should not be construed as a bright-line rule that must be strictly enforced.8 Instead,
Stallworth is properly read as a mere example of one instance in which the party seeking attorney
fees satisfied the burden of demonstrating an inability to pay.9 In any event, whether a party has
established entitlement to an award of attorney fees is always “dependent on the particular facts
and circumstances of each case,” giving “special consideration to the specific financial situations
of the parties and the equities involved.”10 For the same reason, we will not construe Stallworth
5
Borowsky v Borowsky, 273 Mich. App. 666, 687; 733 NW2d 71 (2007).
6
Stallworth v Stallworth, 275 Mich. App. 282, 288-289; 738 NW2d 264 (2007).
7
See, e.g., Myland v Myland, 290 Mich. App. 691, 702; 804 NW2d 124 (2010).
8
Loutts v Loutts (After Remand), 309 Mich. App. 203, 216-218; 871 NW2d 298 (2015).
9
Id. at 217.
10
Id. at 217-218 (quotation marks and citation omitted).
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as suggesting that when one party “earns more than double what [the adverse party] earns in a
year,”11 that party necessarily has the ability to pay the adverse party’s attorney fees. In other
words, while the rationale set forth in Stallworth can be viewed as persuasive in the context of
similar facts, it is not dispositive of the issue presented in the present matter.
In denying Aziz’s request for attorney fees, the trial court found that an award of attorney
fees was not warranted because
[t]here was testimony that both parties had to borrow money to proceed/defend
this action. This is not a case where it is clear that one party is able to bear the
expense and the other is not. Rather, both parties are financially limited in
different ways at this time.
The trial court’s factual findings regarding the parties’ respective inabilities to pay were clearly
supported by the record. Aziz testified that she had been unemployed since she relocated to the
United States in March 2013. Although she owned real estate in Pakistan and Texas, the
properties did not provide a source of income. She had been living with her aunt since July or
August of 2015 and was not required to contribute to household expenses. The amounts she had
previously paid her attorney were advanced by Safdar or borrowed from her family.
Nonetheless, given her lack of employment at the time of the trial court’s decision she had no
means of paying the balance owed to her attorney—which exceeded $81,000 at the conclusion of
the bench trial—without turning to assets she relied upon for her support. Safdar, on the other
hand, made a net salary of approximately $137,000 annually and had secured a raise of
approximately $8,000 that he anticipated would take effect by the end of 2016.12 However, he
also had significant pre- and postmarital debts and was ordered to pay spousal and child support
in excess of $3,000 each month. According to Safdar, his monthly expenses exceeded his
income and he was forced to pay his own attorney fees with a credit card. Under these
circumstances, the trial court’s decision to refrain from awarding attorney fees to Aziz was not
outside the range of principled outcomes. While Aziz may have satisfactorily demonstrated that
she was unable to bear the expense of the action, she did not establish the second requirement for
an award of fees under MCR 3.206(C)(2)(a), i.e., that Safdar had the ability to pay her attorney
fees.
Additionally, in the context of determining Safdar’s spousal and child support
obligations, the trial court repeatedly observed that Aziz is a highly educated individual with an
impressive professional background. In light of her credentials, the trial court expressly opined
that she was capable of earning a reasonable, and likely substantial, income within a short period
of time. Again, these findings were well supported by the record. Aziz holds a bachelor’s
degree in medicine and surgery from her education in Pakistan, which she referred to on her
resume as the equivalent of an MD in the United States, as well as a second bachelor’s degree in
science. She also has 15 years of experience in senior leadership roles in the Pakistani
11
Stallworth, 275 Mich. App. at 289.
12
Safdar is exempt from income tax withholding and is paid in “net” terms.
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government, having served as a member of parliament and parliamentary secretary. While Aziz
testified that she had trouble obtaining employment in the past because her experience and
education were limited to a foreign setting, she also attributed her difficulties to the frequent
moves she made for Safdar’s benefit. As she will no longer have to relocate to accommodate
Safdar’s job, this difficulty should not continue to impede her job search. Moreover, as noted by
the trial court, Safdar’s vocational expert identified a number of lucrative employment
opportunities that might fit Aziz’s qualifications. Although Aziz expressed reservations about
her qualification for most of the positions identified by the vocational expert, her concerns were
largely speculative, and she acknowledged that she had not made any effort to find employment
since the underlying lawsuit was initiated in February 2016. The trial court’s conclusion that
Aziz should not have great difficulty securing suitable employment within a reasonable period of
time was well reasoned and lends further support to its ultimate decision to deny Aziz’s request
for attorney fees.
Affirmed.
/s/ Michael J. Talbot
/s/ Jane M. Beckering
/s/ Thomas C. Cameron
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