Zaid Safdar v. Donya Aziz

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
ZAID SAFDAR, FOR PUBLICATION
March 7, 2019
Plaintiff-Appellee, 9:05 a.m.
v No. 344030
Oakland Circuit Court
DONYA AZIZ, LC No. 2016-839363-DM
Defendant-Appellant.
Before: MURRAY, C.J., and SHAPIRO and RIORDAN, JJ.
MURRAY, C.J.
This is defendant’s appeal of the trial court’s order denying her motion for change of
domicile to Pakistan for the minor child, IBAS, born during her marriage to plaintiff. Under
state law, MCL 722.27a(10), a trial court cannot enter a parenting time order allowing for the
exercise of parenting time in a country that is not a “party” to the Hague Convention on the Civil
Aspects of International Child Abduction (Convention). Because the United States has not
accepted Pakistan’s accession to the Convention, Pakistan is not a “party” to the Convention for
purposes of MCL 722.27a(10). Consequently, we affirm the trial court’s order denying the
motion for change of domicile, but for reasons different than those utilized by the trial court.
I. BACKGROUND FACTS AND PROCEEDINGS
The parties are once again before this Court on an issue primarily pertaining to their
minor child. Relevant to the current appeal is this Court’s decision in Safdar v Aziz, 321 Mich
App 219, 221-222; 909 NW2d 831 (2017), aff’d in part and vacated in part 501 Mich 213(2018), which addressed the parties’ history:
Plaintiff and defendant, both Pakistani citizens, were married in Pakistan
on June 24, 2011, and relocated to the United States, where plaintiff resided with
an employment visa. In 2015, defendant moved to Michigan to live with her aunt,
while plaintiff continued to reside in Maryland. The couple’s only daughter was
born in Oakland County on January 1, 2016, and the parties divorced on
December 21, 2016. Pursuant to the judgment of divorce, the parties agreed to
share joint legal custody of the minor child, while defendant would maintain sole
physical custody. The divorce judgment contained a provision prohibiting the
exercise of parenting time in any country that is not a party to the Hague
Convention on the Civil Aspects of International Child Abduction. At that time,
the prohibition applied to Pakistan. Challenging only the trial court’s denial of
her motion for attorney fees, defendant filed a claim of appeal from the divorce
judgment. . . .
In March 2017, defendant filed the motion to change domicile that is the
subject of this appeal, expressing her desire to relocate with the minor child to
Pakistan as soon as possible and claiming that Pakistan had completed steps to
become a party to the Hague Convention since entry of the judgment of divorce.
Plaintiff objected, arguing that the trial court lacked authority to set aside or
amend the judgment of divorce while defendant’s appeal from that judgment was
pending before this Court. Defendant responded that her first appeal was limited
to the issue of attorney fees and that the appeal did not preclude the trial court’s
consideration of custody matters. The trial court adopted plaintiff’s position and
entered an order dismissing defendant’s motion for change of domicile without
prejudice, reasoning that pursuant to MCR 7.208(A), it lacked jurisdiction to
modify any component of the judgment of divorce.
This Court reversed the trial court on the basis that “[t]he trial court erred when it determined
that it lacked the authority to consider defendant’s motion for change of domicile and to modify
the parties’ divorce judgment during the pendency of defendant’s appeal.” Id. at 227. Plaintiff
appealed this decision and, in lieu of granting leave to appeal, the Michigan Supreme Court held
that “MCL 722.27(1) authorizes the continuing jurisdiction of a circuit court to modify or amend
its previous judgments or orders and is an exception to MCR 7.208(A) ‘otherwise provided by
law.’ ” Safdar v Aziz, 501 Mich 213, 219; 912 NW2d 511 (2018). The Supreme Court vacated
this Court’s “decision to the extent it derived jurisdiction from MCL 552.17, affirm[ed] the result
reached,” and remanded the matter to the trial court for further proceedings. Id.On September 27, 2017, which was shortly after the issuance of this Court’s opinion but
before the Supreme Court’s ruling, defendant filed a new motion for change of domicile seeking
to relocate the minor child with her to Pakistan. Defendant asserted that Pakistan was now a
party to the Convention, eliminating any restriction imposed by MCL 722.27a(10).1 Further, she
argued that the move would greatly improve the quality of life for her and the minor child
because a secure home, an excellent international school system, and free health care would be
1
MCL 722.27a(10) provides:
Except as provided in this subsection, a parenting time order shall contain a prohibition
on exercising parenting time in a country that is not a party to the Hague Convention on the Civil
Aspects of International Child Abduction. This subsection does not apply if both parents provide
the court with written consent to allow a parent to exercise parenting time in a country that is not
a party to the Hague Convention on the Civil Aspects of International Child Abduction.
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available, her immediate and extended family would be nearby, and she would have greater job
opportunities and a more affordable cost of living. Defendant emphasized her full and complete
compliance with the trial court’s previous orders, plaintiff’s monthly visits with the minor child,
and her willingness to expand or accommodate a more beneficial parenting time schedule to
assure plaintiff’s maintenance of a bond with the minor child. She also denied having any
improper motivation for the relocation. Plaintiff filed an answer to the motion for change of
domicile, asserting Pakistan’s accession to the Convention has not made it a treaty partner with
the United States or a “party” in accordance with MCL 722.27a(10).2
At a subsequent motion hearing, the trial court discussed with the parties Pakistan’s status
with respect to the Convention, ultimately indicating that the United States’ failure to recognize
Pakistan as a treaty partner constituted “a concern” and “a big issue.” Nonetheless, the trial court
indicated that an evidentiary hearing was required to resolve the motion to change domicile:
Well because the Court of Appeals says I had to I’m scheduling the hearing. I
don’t – I think you’ve got a up – uphill battle because I’m – I guess I will do more
research but I have to be completely satisfied – I have that . . . with respect to
their participation, even if I decide that changing – moving this child to a different
country is a good idea for that . . . which . . . you know it’s concerning ‘cuz I
don’t – I don’t know how you prove that it’s in the child’s best interest. I really
don’t know. I mean you gotta look at all the factors, I’m gonna do that but it’s it’s
not like you can go see him every other weekend or whatever.
The evidentiary hearing was conducted over a two-day period, with witnesses testifying for both
sides about such matters as the political and economic environment in Pakistan, the school and
living conditions that would be made available to the child in both countries, the past and current
history between the parties, and the procedure for, as well as the likelihood of, enforcing a
United States custody order in Pakistan.
On March 30, 2018, the trial court issued a written order. The trial court engaged in a
lengthy recitation of the parties’ history and the testimony adduced at the hearing and then, as to
the Convention issue, concluded:
For the purposes of Article 38, both parties agree that the United States is a
contracting state, that Pakistan properly acceded to the Hague Convention, and
that the United States did not take any of the required steps to declare its
2
Plaintiff also filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10),
primarily asserting that Pakistan’s circumstances had not changed with regard to the Convention
and the United States. But a motion for summary disposition is a vehicle to attack (or at times
enforce) the validity of a claim or defense, it is not a means by which to seek dismissal of a
previously filed motion. See MCR 2.116(C)(8) (allowing a party to challenge the validity of a
“claim,” which is a cause of action set forth in a complaint, MCR 2.111(B)), and MCR
2.116(C)(10) (allowing a party to seek a judgment, except as to damages, when the material facts
are undisputed).
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acceptance of Pakistan’s accession. Thus, the United States has not accepted
Pakistan’s accession. Citizens of neither country have legal recourse, under the
Hague Convention, if a parent from one country abducts a child into the other
country.
The trial court then provided a thorough analysis of the factors set forth in MCL 722.31(4),
finding that three factors favored plaintiff, two factors were neutral between the parties, and
defendant failed to establish by a preponderance of the evidence that a change in domicile was in
the child’s best interest. Having determined that a change in the minor child’s domicile was not
in the child’s best interest, the trial court did not proceed to an analysis of whether a change
would occur in the established custodial environment.
II. ANALYSIS
A. HAGUE CONVENTION AND MCL 722.27a(10)
Defendant contends that, because Pakistan has acceded to the Convention, it is now a
“party” to that Convention as required by MCL 722.27a(10) and, therefore, the proscriptions
imposed by MCL 722.27a(10) no longer remain an impediment to her request for change of
domicile. As noted, the trial court recognized that the United States is a Contracting Party to the
Convention, and that Pakistan acceded to the Convention, but never determined whether, as a
result, Pakistan could be considered a “party” to the Convention for purposes of the statute.
“Issues of statutory interpretation are questions of law that this Court reviews de novo.”
Spectrum Health Hosps v Farm Bureau Mut Ins Co of Mich, 492 Mich 503, 515; 821 NW2d 117
(2012). “Treaties have the same legal effect as statutes, and therefore a . . . court’s interpretation
of a treaty is reviewed de novo as well.” VLM Food Trading Int’l, Inc v Illinois Trading Co, 811
F3d 247, 251 (CA 7, 2016).3
The rules of statutory interpretation are recognized to encompass the following:
In examining a statute, it is our obligation to discern the legislative intent
that may reasonably be inferred from the words expressed in the statute. One
fundamental principle of statutory construction is that “a clear and unambiguous
statute leaves no room for judicial construction or interpretation.” Thus, when the
Legislature has unambiguously conveyed its intent in a statute, the statute speaks
for itself and there is no need for judicial construction; the proper role of a court is
to apply the terms of the statute to the circumstances in a particular case.
Concomitantly, it is our task to give the words used by the Legislature their
3
While federal case law constitutes “only . . . persuasive authority [and] not binding precedent,”
Sharp v City of Lansing, 464 Mich 792, 803; 629 NW2d 873 (2001), we look to it for guidance
here because the vast majority of decisions applying the Convention are from the federal
judiciary.
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common, ordinary meaning. [In re Investigative Subpoena, 256 Mich App 39,
45-46; 662 NW2d 69 (2003) (quotation marks and citations omitted).]
More specifically the Supreme Court has held:
Unless statutorily defined, every word or phrase of a statute should be accorded
its plain and ordinary meaning, taking into account the context in which the words
are used. We may consult dictionary definitions to give words their common and
ordinary meaning. When given their common and ordinary meaning, “[t]he
words of a statute provide ‘the most reliable evidence of its intent . . . .’ ” [Krohn
v Home-Owners Ins Co, 490 Mich 145, 156-157; 802 NW2d 281 (2011) (citations
omitted; alterations in original).]
As set forth in footnote 1, MCL 722.27a(10) states:
Except as provided in this subsection, a parenting time order shall contain
a prohibition on exercising parenting time in a country that is not a party to the
Hague Convention on the Civil Aspects of International Child Abduction. This
subsection does not apply if both parents provide the court with written consent to
allow a parent to exercise parenting time in a country that is not a party to the
Hague Convention on the Civil Aspects of International Child Abduction.
With regard to MCL 722.27a(10), we recently stated that “[t]he plain language of the statute
establishes that a court may not grant physical custody to a parent when that parent lives in a
country that is not a party to the Hague Convention.” Elahham v Al-Jabban, 319 Mich App 112,
127; 899 NW2d 768 (2017).
Defendant argues that because Pakistan acceded to the Convention, it is a party for
purposes of MCL 722.27a(10). We do not think it is as simple as that. Instead, when examining
the meaning of “party” under the statute, as well as how a nation becomes obligated to another
nation for purposes of the Convention, it is clear that Pakistan is not a party to the Convention.
The Legislature did not provide a definition for the term “party” under MCL 722.27a(10).
Additionally, the Convention does not refer to a nation joining it as a “party.” So, to determine
the term’s meaning, we turn to a legal dictionary because the term “party” has a peculiar legal
meaning. See Feyz v Mercy Mem Hosp, 475 Mich 663, 683; 719 NW2d 1 (2006). Additionally,
“[t]he common understanding and the traditional legal usage of a term also guide our
interpretation.” In re Erwin, 503 Mich 1, 10; 921 NW2d 308 (2018), citing People v Thompson,
477 Mich 146, 151-152; 730 NW2d 708 (2007); see also MCL 8.3a.4
4
MCL 8.3a states:
All words and phrases shall be construed and understood according to the
common and approved usage of the language; but technical words and phrases,
and such as may have acquired a peculiar and appropriate meaning in the law,
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A “party” is “[o]ne who takes part in a transaction.” Black’s Law Dictionary (7th ed). A
“transaction,” in turn, is generally defined as “[a]ny activity involving two or more persons,” and
more specifically defined as “[t]he act or an instance of conducting business or other dealings”
and as “[s]omething performed or carried out; a business agreement or exchange.” Id. Using
these definitions, “party” means one who engages with another to perform or carry out an
agreement. This general definition is consistent with the traditional usage of the term party in
the context of contractual relations5—that being a competent person whom, for valid
consideration, mutually agrees to the performance or exchange of things. See Lentz v Lentz, 271
Mich App 465, 471; 721 NW2d 861 (2006), and Detroit Trust Co v Struggles, 289 Mich 595,
599; 286 NW 844 (1939).
In determining whether Pakistan is a party to the Convention with the United States,6 we
must look to how a nation becomes bound to the Convention rules and procedures. After all, as
one court has recognized, “[a] State only becomes bound by—that is, becomes a party to—a
treaty when it” takes the appropriate legal action to be bound. Flores v Southern Peru Copper
Corp, 414 F3d 233, 256 (CA 2, 2003). In doing so, we conclude that Pakistan’s accession to the
Convention—without the United States’ acceptance—does not make Pakistan a party to the
Convention for purposes of state law.
There are two ways in which a nation can become a party to the Convention. First, under
Article 37, nations that were “Members of the Hague Conference of Private International Law at
shall be construed and understood according to such peculiar and appropriate
meaning.
5
We place our focus on what is meant by a contracting “party” because “[a]s a general matter, a
treaty is a contract, though between nations.” BG Group PLC v Republic of Argentina, 572 US
25, 37; 134 S Ct 1198; 188 L Ed 2d 220 (2014). See, also, In re Extradition of Zhenly Ye Gon,
613 F Supp 2d 92, 96 (D DC, 2009) (reasoning that “a treaty is a contract between countries”).
6
Our concurring colleague opines that we have departed from the plain language of the statute
by considering whether Pakistan is a party to the Convention with the United States, as opposed
to whether Pakistan is simply a party to the Convention in general, and that Pakistan is
“obviously” a “party” to the Convention because it acceded to it. But looking to dictionary
definitions and considering the context of the term within the statute are precisely how courts
determine the plain meaning of an undefined statutory term. See Marcelle v Taubman, 224 Mich
App 215, 219; 568 NW2d 393 (1997), Griffith v State Farm Mut Auto Ins Co, 472 Mich 521,
526; 697 NW2d 895 (2005) (“Because the role of the judiciary is to interpret rather than write the
law, courts lack authority to venture beyond a statute’s unambiguous text. Further, we accord
undefined statutory terms their plain and ordinary meanings and may consult dictionary
definitions in such situations.”) (citations omitted), and People v Gillis, 474 Mich 105, 114; 712
NW2d 419 (2006) (holding that courts must consider, in addition to the dictionary definition, the
placement and purpose of those words in the context of the statutory scheme). And when doing
so here, we conclude that Pakistan can only be a “party,” as that term is used in MCL
722.27a(10), if it is a party to the Convention with the United States.
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the time of its Fourteenth Session,” could sign the Convention and then have the subsequent
ratification of the signature deposited with the Ministry of Foreign Affairs in the Netherlands.
Hague Convention, art 37. “The United States signed the Convention in 1981 and ratified it,
thereby becoming a Contracting State, in 1988, and the Convention entered into force in the
United States on July 1, 1988.” Marks on Behalf of SM v Hochhauser, 876 F3d 416, 420 (CA 2,
2017).
Pakistan was not able to become a Contracting State through Article 37, but could
through Article 38 of the Convention. Article 38 allows a nation to “accede” to the Convention.
Hague Convention, art 38. “ ‘Accession’ is ‘the act whereby a State accepts the offer or the
opportunity of becoming a party to a treaty already signed by some other States.’ ” Marks, 876
F3d at 419 n 2 (quotation marks and citation omitted). But as Marks points out, an accession to
the Convention is only binding on those Contracting States that accept the accession:
Article 38 explains that:
Any other State may accede to the Convention. . . . The accession
will have effect only as regards the relations between the acceding
State and such Contracting States as will have declared their
acceptance of the accession. . . . The Convention will enter into
force as between the acceding State and the State that has declared
its acceptance of the accession on the first day of the third calendar
month after the deposit of the declaration of acceptance.
As Article 38 makes clear, accession requires the acceptance of other states before
the Convention “will enter into force,” i.e., the accession has effect only as to
Contracting States that “have declared their acceptance of the accession.”
[Marks, 876 F3d at 419-420 (citations omitted).]
There is no dispute that Pakistan acceded to the Convention by depositing its instrument
of accession to the Convention on December 22, 2016, with the Convention entering into force
for Pakistan on March 1, 2017.7 See Ozaltin v Ozaltin, 708 F3d 355, 359 n 4 (CA 2, 2013)
(citations omitted). However, the United States has not recognized Pakistan’s accession to the
Convention. And, as made clear above, “the Convention does not ‘enter into force’ until a
ratifying state accepts an acceding state’s accession and [ ] Article 35 limits the Convention’s
application to removals and retentions taking place after the Convention has entered into force
between the two states involved.” Marks, 876 F3d at 424. As a result, the clear and important
legal effect of the United States not accepting Pakistan’s accession to the Convention is that
Pakistan is not bound to all the benefits and obligations imposed by the Convention when it
comes to parenting-time orders arising out of the United States:
7
International Family Law Firm, Country Report: Pakistan
(accessed
October 9, 2018). The referenced article was authored by Jeremy D. Morley, who served as a
witness in this case.
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It is undisputed that the United States and the Dominican Republic have
not entered into the negotiations required by Article 38. Consequently, the
Convention’s administrative and judicial mechanisms are not yet applicable with
regard to relations between the two countries. See Gonzalez v Gutierrez, 311 F.3d
942, 945 (9th Cir., 2002) (“Accession . . . binds a country only with respect to
other nations that accept its particular accession under Article 38.”) (citing Lynda
R. Herring, Taking Away the Pawns: International Parental Abduction & the
Hague Convention, 20 N.C.J. INT’L. L & COMM. REG. 137, 138 n. 8 (1994));
see also Dep’t of State, Hague Int’l Child Abduction Convention Text and Legal
Analysis, 51 Fed. Reg. 10494, 10514 (Mar. 26, 1986) (“[U]nder Article 38 the
Convention is open to accession by non-member States, but enters into force only
between those States and member Contracting States which specifically accept
their accession to the Convention.”). [Taveras v Taveras, 397 F Supp 2d 908, 911
(SD Ohio, 2005), aff’d 477 F3d 767 (CA 6, 2007)].
See, also, Marks, 876 F3d at 423 (“Clearly, the Convention did not come into force between
Thailand and the United States until after the latter accepted the former’s accession.”); Souratgar
v Lee, 720 F3d 96, 102 n 5 (CA 2, 2013) (“Under Article 38, one state’s accession will have
effect with respect to another contracting state only after such other state has declared its
acceptance of the accession.”); Viteri v Pflucker, 550 F Supp 2d 829, 833 (ND Ill, 2008) (“Thus,
the Convention enters into force between an acceding State and a member Contracting State only
when the Contracting State accepts the acceding State’s accession to the Convention.”). As
such, the Convention has not come into force, i.e., it is not binding between Pakistan and the
United States because the latter has not accepted the former’s accession.
To accept defendant’s argument would render hollow the word “party.” As we hope to
have made clear, a nation (or any other person or entity) that has not bound itself to comply with
a contract’s provisions is not a “party” to the contract. To conclude otherwise would render the
term meaningless, and would allow a circuit court to enter a parenting time order without
offending MCL 722.27a(10), despite there being no legal protections that the foreign nation
would be bound to the Convention’s terms.
The protective procedures and rules of the Convention are not binding between the
United States and Pakistan, and as a result, Pakistan is not a “party” to the Convention as
contemplated by MCL 722.27a(10). Therefore, the prohibitions of that statute remain applicable.
For that reason, the trial court properly denied the motion to change domicile, and it is
unnecessary to proceed with a review of defendant’s remaining substantive allegations of error
regarding the trial court’s ruling on the motion for change of domicile.
B. ATTORNEY FEES
Defendant asserts that the trial court erred in denying her request that plaintiff contribute
to or pay her attorney fees, citing the income discrepancy between the parties.
This Court reviews a trial court’s award of attorney fees in a divorce action for an abuse
of discretion. Cassidy v Cassidy, 318 Mich App 463, 479; 899 NW2d 65 (2017). “An abuse of
discretion occurs when the result falls outside the range of principled outcomes.” Id. Findings
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of fact are reviewed for clear error. Id. “A finding is clearly erroneous if we are left with a
definite and firm conviction that a mistake has been made.” Id. (quotation marks and citation
omitted).
A party requesting attorney fees postjudgment must show that the fees were incurred, and
that they were reasonable. Souden v Souden, 303 Mich App 406, 415; 844 NW2d 151 (2013).
“When requested attorney fees are contested, it is incumbent on the trial court to conduct a
hearing to determine what services were actually rendered, and the reasonableness of those
services.” Id. (quotation marks and citation omitted). In accordance with MCR 3.206(C), as
amended April 1, 2003, 468 Mich lxxxv (2003):
(1) A party may, at any time, request that the court order the other party to pay all
or part of the attorney fees and expenses related to the action or a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to
show that
(a) the party is unable to bear the expense of the action, and that the other party is
able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused
to comply with a previous court order, despite having the ability to comply.
Further:
“Attorney fees are not awarded as a matter of right but only when
necessary to enable a party to carry on or defend the litigation.” “The party
requesting the attorney fees has the burden of showing facts sufficient to justify
the award.” This burden includes the burden to provide evidence of the attorney
fees that were incurred. A party cannot rely on unsubstantiated assertions when
requesting attorney fees under MCR 3.206(C). [Sulaica v Rometty, 308 Mich
App 568, 590; 866 NW2d 838 (2014) (citations omitted).]
Defendant asserts that she is entitled to attorney fees premised on the income discrepancy
between the parties. In support of her position, defendant relies on this Court’s ruling in
Stallworth v Stallworth, 275 Mich App 282, 288-289; 738 NW2d 264 (2007), wherein it was
stated:
Necessary and reasonable attorney fees may be awarded to enable a party
to carry on or defend a divorce action. . . . Because [the] plaintiff’s yearly income
is less than the amount she owed her attorney, she sufficiently demonstrated her
inability to pay her attorney fees. Furthermore, [the] defendant earns more than
double what [the] plaintiff earns in a year, which demonstrated his ability to
contribute to [the] plaintiff’s attorney fees. Under these circumstances, the trial
court’s ruling was within the range of reasonable and principled outcomes.
[Citations omitted.]
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Defendant made the same argument after the entry of the divorce judgment and the denial of her
request for plaintiff to contribute to her attorney fees. On appeal of that ruling to this Court, we
addressed the request for attorney fees on the basis of income disparity alone:
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. 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. 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. 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.” For the same reason, we will not construe Stallworth as
suggesting that when one party “earns more than double what [the adverse party]
earns in a year,” 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. [Safdar v Aziz, unpublished per curiam
opinion of the Court of Appeals, issued March 13, 2018 (Docket No. 336590), pp
2-3 (citations omitted; alteration in original).]
The trial court’s denial of defendant’s request for attorney fees was based upon (1) “the parties’
respective inabilities to pay,” (2) plaintiff’s significant debts and monthly expenses, including his
own attorney fees which he paid by credit card, (3) defendant’s failure to demonstrate plaintiff’s
ability to pay, and (4) defendant’s lack of effort to obtain employment despite her level of
education and “an impressive professional background.” Id. at 3.
Postjudgment, the trial court again denied defendant’s request that plaintiff contribute to,
or pay, the attorney fees she had incurred. The trial court noted that both parties have incurred
significant debt due to the proceedings. The trial court indicated that a significant factor for
denial of the request was defendant’s failure to secure any type of employment since the
judgment of divorce in 2016. The trial court specifically acknowledged that its decision was
premised on MCR 3.206(C)(2)(a), as amended April 1, 2003, 468 Mich lxxxv (2003), which
requires proof that “the party is unable to bear the expense of the action and that the other party
is able to pay,” rather than, MCR 3.206(C)(2)(b), which involves a refusal to comply with
previous orders.
At the evidentiary hearing, both parties asserted that the legal proceedings had been
extremely expensive and that they had both incurred substantial legal fees, which remain unpaid.
Defendant asserted that she has been required to borrow money to pay her attorney fees and that,
although she has sought employment, she has not been able to procure such in the United States
despite her education level and professional experience. While plaintiff acknowledged that he
has a substantial income from his employment with World Bank, he attested to paying his
attorney with a credit card and retaining an outstanding balance to his attorney of more than
$100,000.
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On this record, and given that the burden of proof is on defendant, it cannot be said that
the trial court erred in denying her request for attorney fees. In accordance with MCR
3.206(C)(2)(a), it was incumbent on defendant to demonstrate that she was unable to bear the
expense of the litigation and that plaintiff had the ability to pay. As noted by the trial court and
by this Court in the prior appeal, despite defendant’s educational and professional background
and her assertion of the expenditure of effort to obtain employment, it is difficult to accept that
defendant is unable to earn any monies or obtain a job. At the very least, the trial court could
reasonably impute income to defendant, which could dispute or minimize her declared need for
contribution to her attorney fees. Further, although defendant asserted that she was required to
borrow funds to pursue the litigation, there was no testimony that defendant also incurred a
commensurate obligation to repay those borrowed funds. There exists, in other words, an
informational or evidentiary gap regarding defendant’s assertions of need and her continued
ability to survive economically without employment.
Commensurately, defendant has not demonstrated that plaintiff has the ability to pay or
contribute to her attorney fees. Again, the evidentiary record, with regard to testimony elicited at
the hearing, lacked anything other than confirmation of plaintiff’s salary and the incurrence of
substantial attorney fees of $100,000 or more, with payment of the debt at least in part through
credit cards. Additionally, during the evidentiary hearing, defendant offered plaintiff a place to
stay, transportation, and the opportunity to see the minor child when she travels back to the
United States, which she implied would be a regular occurrence, making her assertions of
poverty or financial need somewhat suspect. As such, the trial court did not abuse its discretion
in denying defendant’s request for attorney fees.
Affirmed.
/s/ Christopher M. Murray
/s/ Michael J. Riordan
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