Williams v. Williams

Cavanagh, P.J.

(concurring in part and dissenting in part). While I agree that the trial court incorrectly apportioned the marital assets after finding fraud, I respectfully dissent from the majority’s holding that a hearing conducted via depositions constitutes a full evidentiary hearing for the purpose of making a finding of fraud upon the court.

I agree with the majority that, as provided in MCR 2.119(E)(2), deposition testimony will be sufficient for many evidentiary hearings. However, the majority has completely ignored the level of proof required in the present case. The level of proof required to sustain a motion to set aside a judgment because of alleged fraud is "of the highest order.” Kiefer v Kiefer, 212 Mich App 176, 179; 576 NW2d 873 (1995); Parlove v Klein, 37 Mich App 537, 544; 195 NW2d 3 (1972).

In Parlove, this Court held that a full evidentiary hearing was required for a determination whether there had been fraud upon the court. Parlove, supra at 545. The majority holds that a "deposition” hearing, ordered pursuant to MCR 2.119(E)(2), satisfies Parlove's requirement of a full evidentiary hearing. MCR 2.119(E)(2) provides:

When a motion is based on facts not appearing of record, the court may hear the motion on affidavits presented by the parties, or may direct that the motion be heard wholly or partly on oral testimony or deposition.

However, in Parlove, this Court specifically stated that the trial court could not determine whether there had been fraud upon the court solely by reference to conflicting affidavits. Parlove, supra at 544-545. Thus, relying on MCR 2.119(E)(2) for the definition of "full evidentiary hearing” is contrary to the holding of Parlove, which the majority purports to follow.

As the parties noted in the trial court, this case involves a question of credibility. The majority correctly states that an assessment of credibility can be made without considering a witness’ demeanor. However, for better or worse, our judicial system places value on the factfinder’s ability to observe witnesses. The deference an appellate court gives the trial court’s findings of fact is due to "the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it.” MCR 2.613(C). The Supreme Court has observed that "[t]here are many aids possessed by the judge who hears the oral testimony in deciding who of the witnesses are truthful that do not get upon the printed page.” Beason v Beason, 435 Mich 791, 800-801; 460 NW2d 207 (1990) (quoting Donaldson v Donaldson, 134 Mich 289, 291; 96 NW 448 [1903]).

Because a finding of fraud upon the court requires the highest order of proof, I believe that the trial court should not have deprived itself of the opportunity to observe each witness firsthand and to consider the witness’ demeanor as it assessed credibility. Therefore, I would remand to the trial court for a full, in-court evidentiary hearing.