Brandon Bernard Carr v. Caci Ann Carr

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
BRANDON BERNARD CARR, UNPUBLISHED
July 18, 2019
Plaintiff-Appellee,
v No. 345820
Calhoun Circuit Court
CACI ANN CARR, LC No. 2017-003228-DM
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MARKEY and GLEICHER, JJ.
PER CURIAM.
Defendant, Caci Ann Carr, appeals as of right the trial court’s judgment of divorce and its
entry of a uniform child-support order. For the reasons more fully explained below, we affirm in
part, reverse in part, and remand for further proceedings.
I. BASIC FACTS
Caci married plaintiff, Brandon Carr, in 2015, and they had a daughter in December
2015. Caci was unemployed at the time of their marriage and did not come to the marriage with
significant assets. Brandon, however, had a high-paying job earning approximately $120,000 per
year, real property, and significant assets. In November 2017, Brandon filed for divorce. At the
time of trial, Brandon was 28 years of age and Caci was 27 years of age. In September 2018, the
trial court entered a judgment of divorce that divided the marital estate. Relevant to this appeal,
the trial court found that few assets were part of the marital estate and it denied Caci’s request for
spousal support and attorney fees. The judgment also provided that Brandon and Caci had joint
legal and physical custody of the child. The court also entered a child-support order.
II. PROPERTY DIVISION
A. STANDARD OF REVIEW
Caci argues that the trial court erred by awarding the funds in three bank accounts, a John
Deere 4650 tractor, and an account receivable to Brandon as his separate property. “This Court
reviews de novo whether the trial court properly interpreted and applied the relevant statutes and
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court rules.” Pransky v Falcon Group, Inc, 311 Mich. App. 164, 193; 874 NW2d 367 (2015).
The factual findings underlying the trial court’s application of the law are reviewed for clear
error. Kaeb v Kaeb, 309 Mich. App. 556, 564; 873 NW2d 319 (2015). A trial court’s findings are
clearly erroneous when, after reviewing the record, this Court is left with the definite and firm
conviction that the trial court made a mistake. Loutts v Loutts, 298 Mich. App. 21, 26; 826 NW2d
152 (2012).
B. ANALYSIS
Trial courts have broad authority to divide real and personal property that came to either
party to a divorce action by reason of the marriage. MCL 552.19; Reeves v Reeves, 226 Mich
App 490, 493; 575 NW2d 1 (1997). Generally, marital property is property that was acquired or
earned by the parties during the marriage, and separate property is generally property that the
parties obtained or earned before the marriage. Cunningham v Cunningham, 289 Mich. App. 195,
201; 795 NW2d 826 (2010). When considering how to divide property in a divorce proceeding,
the trial court’s first step must be to determine the parties’ marital and separate estates. Reeves,
226 Mich. App. at 493-494.
Brandon had three bank accounts: a Chemical Bank account with an account number
ending in 6300, a Chemical Bank account that he referred to as the farm account, and a savings
account with a credit union. It appears that the farm account predated the marriage; however, the
other two accounts appear to have been started and funded during the marriage with marital
funds. On the date selected by the trial court for valuing the marital estate, the accounts had a
total of $49,893. Although Brandon characterized the farm account and savings account as his
own, he did not testify that the accounts were premarital and did not offer any testimony or
evidence concerning the balances that these accounts had before the parties’ marriage. He
further stated that, at one point, he and Caci had just the farm account and used it for all their
transactions. Brandon stated that he deposited more than $60,000 into the farm account—during
the marriage—between July 2017 and December 2017. From the testimony, one could infer that
Brandon and Caci used all three accounts for income received and expenses paid during the
marriage. In addition, the record shows that Brandon was essentially the sole income earner and
that he made a substantial income throughout the marriage. “[P]roperty earned by one spouse
during the existence of a marriage is presumed to be marital property.” Byington v Byington, 224
Mich. App. 103, 112-113; 568 NW2d 141 (1997). Finally, as recognized by the trial court,
Brandon used all three accounts to conduct the marital estate’s transactions.
Nevertheless, the trial court awarded all the funds in the accounts to Brandon because
“there was no testimony as to any change in the value of these accounts.” In doing so, the trial
court held that the parties’ failure to present evidence concerning the balance in these accounts at
the time of the marriage precluded a finding that the funds were marital funds. When asked to
clarify if it was valuing the accounts at zero for purposes of the marital division, the trial court
agreed, explaining that the “monies were there prior to this etcetera.” The record only showed
that Brandon deposited substantial sums of income that came to him by reason of the marriage
into those accounts, and there was no evidence that the accounts had premarital funds in them.
Accordingly, as there was no evidentiary basis for the court’s finding, it clearly erred when it
found that the funds in the accounts were all “there prior to this.”
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Additionally, the evidence strongly suggests that Brandon comingled whatever funds he
earned during the marriage with any funds that might have been premarital. In such cases, the
funds should be treated as part of the marital estate. Cunningham, 289 Mich. App. at 201-202
(“[S]eparate assets may lose their character as separate property and transform into marital
property if they are commingled with marital assets and ‘treated by the parties as marital
property.’ ”) (citation omitted). Therefore, although that Caci did not present evidence
concerning the balance of the accounts at the start of the marriage, the trial court erred by not
addressing whether any balance in the accounts had lost its separate character given the
acknowledge use of the accounts for the parties’ financial transactions during the marriage,
including the deposit of more than $60,000 between July 2017 and December 2017.
Consequently, we reverse the trial court’s decision to award all the funds to Brandon as his
separate property and remand for specific findings. On remand, the trial court shall hold an
evidentiary hearing and determine whether the accounts were funded with income earned during
the marriage or whether Brandon so comingled marital funds with possible premarital funds that
the accounts should be treated as part of the marital estate. The court may, in its discretion, take
additional evidence. After making its findings and conclusions, the trial court shall amend the
judgment as needed.
Next, the trial court found that the John Deere 4650 tractor that Brandon purchased
during the marriage was not part of the marital estate. The court found that because the John
Deere 4650 was a replacement for an older tractor that Brandon purchased before the marriage,
the new tractor was separate property. The record does not support the court’s finding. Brandon
sold the old tractor after the parties separated, and he deposited the proceeds from the sale into
the farm account that was awarded to him. Thus, it is clear that the replacement for the
premarital tractor was the proceeds from its sale. The John Deere 4650 was purchased during
the marriage, presumably with marital assets, and there is no testimony or documentary evidence
indicating that the John Deere 4650 was purchased with Brandon’s separate property.
Accordingly, the presumption that it is martial property is unrebutted, see Byington, 224 Mich
App at 112, so the trial court clearly erred by finding the new tractor was Brandon’s separate
property. We, therefore, reverse this portion of the court’s order and remand for findings as to
the net value of John Deere 4650 tractor and a proper division of that asset as part of the marital
estate.
The trial court also found that a $13,365.97 deposit into the farm account days after
Brandon filed for divorce was separate property. Caci argues that this was an error because the
money was for an account receivable owed to the marital estate before Brandon filed for divorce.
Any debt owed to Brandon that arose during the marriage was presumptively an asset of the
estate. See id. Brandon testified that, as part of his farm operations, he would sometimes not
realize the proceeds from the sale of the crop until later in the year. Accordingly, the trial court
should have considered whether the payment after the valuation date reflected payment for goods
or services owned by or provided by the marital estate, and it should have divided the value as
part of the marital estate if it found that the funds reflected payment for goods or services owned
by or provided by the marital estate. To the extent that the trial court refused to consider this
evidence because the deposit occurred after the valuation date, it erred as a matter of law. See
LaFleche, 242 Mich. App. 692, 695; 619 NW2d 738 (2000) (“A trial court commits clear legal
error when it incorrectly chooses, interprets, or applies the law.”) (quotation marks and citation
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omitted). Accordingly, we reverse and remand for specific findings on the nature of the deposit
and whether it reflected payment for goods or services owned by the marital estate.
III. CUSTODY
A. STANDARD OF REVIEW
Caci next argues that the trial court erred when it awarded the parties joint physical
custody because the parties’ agreement clearly made her the child’s primary physical custodian.
In child custody disputes, this Court reviews the trial court’s factual findings by examining
whether the findings are against the great weight of the evidence. Fletcher v Fletcher, 447 Mich.
871, 877-878; 526 NW2d 889 (1994).
B. ANALYSIS
Brandon moved for “shared custody” with equal parenting time. The parties settled their
custody dispute on the record, but specifically declined to address whether the custody
arrangement involved sole physical custody or joint physical custody. The trial court approved
the partial settlement in June 2018. In July 2018, Caci submitted her trial brief, noting that the
provision of alternating parenting time met the definition of joint physical custody under MCL
722.26a(7). However, she argued that not all parents are deemed joint physical custodians just
because the child resides alternately with both parents. Rather, she maintained, the trial court
should award her sole physical custody because the agreement on parenting time made it clear
that she was the primary custodial parent. The matter arose again at trial and the court agreed
that it had to examine the parenting-time schedule and award physical custody on the basis of the
time allocated to a particular parent. The court added that Caci would be the “primary
custodian.” The divorce judgment, however, stated that the parties had joint physical custody.
On appeal, Caci claims that the trial court misconstrued the ramifications of the parties’
parenting-time agreement and then refused to implement the decision. Caci notes that she and
Brandon agreed to a parenting schedule that provided her with significantly more parenting time
over the minor child and included significantly more overnight stays. She maintains that the
agreement plainly awarded her primary physical custody, which she equates with sole physical
custody. Primary physical custody is not a legal classification established by the Legislature
under MCL 722.26a(7); rather, it is a shorthand reference that in many cases involves joint
physical custody. See Lieberman v Orr, 319 Mich. App. 68, 79-80; 900 NW2d 130 (2017). As a
result, whether the parties agreed to sole or joint physical custody depends on the terms of their
agreement. See MCL 722.26a(2) (stating that, if the parents agree on joint custody, the court
must respect that agreement unless it finds by clear and convincing evidence that joint custody is
not in the best interests of the child).
The agreement provided that the child would reside with both parents during alternating
periods. Therefore, in the absence of an express term to the contrary, the agreement provided for
joint physical custody as defined under MCL 722.26a(7)(a). Consequently, the parties did not
agree that Caci would have sole physical custody. Moreover, although it is fair to characterize
Caci as having primary physical custody of the minor child, because that term is not a
classification recognized under the Child Custody Act, MCL 722.21 et seq., nothing in the law
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requires the court to state that one parent is the primary physical custodian. Consequently,
because the trial court’s award of joint physical custody in the judgment is consistent with the
terms of the parties’ agreement on custody and with the terms of MCL 722.26a(7)(a), it is
unnecessary to alter the judgment to include a statement that Caci is the primary custodial parent.
IV. CHILD SUPPORT
A. PRESERVATION AND STANDARD OF REVIEW
Caci argues that the trial court erred in several respects when it applied Michigan’s Child
Support Formula (MCSF). This Court reviews de novo whether the trial court properly
interpreted and applied the relevant statutes and the MCSF. See Borowsky v Borowsky, 273
Mich. App. 666, 672; 733 NW2d 71 (2007). We review for clear error the trial court’s factual
findings underlying its application of the MCSF for clear error, and we review for an abuse of
discretion the trial court’s exercise of discretion under the MCSF. Id. A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes. Id.
Brandon argues that Caci waived her claims of error regarding the trial court’s decision to
impute income to her by failing to object to the trial court’s factual findings and failing to
specifically challenge the trial court’s application of the law after the trial court orally stated its
findings and conclusions. Caci did not have to object to the trial court’s findings in order to
challenge them on appeal. MCR 2.517(A)(7). As for the remaining claims of error, the claims
would be preserved if they were raised before or addressed by the trial court. Loutts, 298 Mich
App at 23. Here, the record reflects that each issue raised on appeal was raised before and/or
decided by the trial court. Accordingly, the issues are preserved and not waived.
B. ANALYSIS
1. IMPUTATION OF INCOME
Caci contends that the trial court erred as a matter of law when it imputed income to her
without following the requirements of the MCSF and when it refused to adjust the imputed
income to reflect the childcare costs that she might incur were she to return to work.
As a general rule, trial courts are required to strictly comply with the requirements of the
MCSF when calculating child support. Borowsky, 273 Mich. App. at 673. The first step in
calculating child support is to determine the parents’ income. Id. The MCSF provides that a
parent’s income “includes the potential income that the parent could earn, subject to that parent’s
actual ability,” if the parent is “voluntarily unemployed or underemployed, or has an unexercised
ability to earn” income. 2017 MCSF 2.01(G). Accordingly, if a trial court finds that the parent
is voluntarily unemployed, underemployed, or has an unexercised ability to earn income, the
court must determine the amount of unearned income and impute it to that parent.
Yet, the MCSF provides strict limitations on a trial court’s ability to impute income. The
court may only impute income to a parent if it finds that the parent has the “actual ability to earn
and a reasonable likelihood of earning the potential income.” 2017 MCSF 2.01(G)(2). And
when figuring the amount of potential income, trial courts must consider the following factors:
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(a) Prior employment experience and history, including reasons for any
termination or changes in employment.
(b) Educational level and any special skills or training.
(c) Physical and mental disabilities that may affect a parent’s ability to
work, or to obtain or maintain gainful employment.
(d) Availability for work (exclude periods when a parent could not work
or seek work, e.g., hospitalization, incarceration, debilitating illness, etc.).
(e) Availability of opportunities to work in the local geographical area.
(f) The prevailing wage rates and number of hours of available work in the
local geographical area.
(g) Diligence exercised in seeking appropriate employment.
(h) Evidence that the parent in question is able to earn the imputed
income.
(i) Personal history, including present marital status, present means of
support, criminal record, ability to drive, and access to transportation, etc.
(j) The presence of the parties’ children in the parent’s home and its
impact on that parent’s earnings.
(k) Whether there has been a significant reduction in income compared to
the period that preceded the filing of the initial complaint or the motion for
modification. [2017 MCSF 2.01(G)(2).]
Additionally, a trial court’s calculation of the amount of potential income to be imputed to a
parent “should account for additional costs associated with earning the potential income such as
childcare and taxes that a parent would pay on the imputed income.” 2017 MCSF 2.01(G)(3).
As this Court has explained, trial courts must consult these factors to ensure that adequate fact-
finding supports the finding that the parent has an actual ability and likelihood of earning the
imputed income. Clarke v Clarke, 297 Mich. App. 172, 184; 823 NW2d 318 (2012). An
imputation that does not involve consideration of the listed criteria is speculative and violates the
requirement that child support be determined on the basis of the actual resources of the parents.
Ghidotti v Barber, 459 Mich. 189, 199-200; 586 NW2d 883 (1998).
After hearing the proofs, the trial court found that Caci could work, notwithstanding her
testimony to the contrary. Although the trial court found that Caci could work, it did not make
any findings about her actual ability to earn income with these conditions and did not find
whether there was a reasonable likelihood that she would earn the potential income, which it was
required to do before it could include potential income when calculating Caci’s income. See
2017 MCSF 2.01(G); 2017 MCSF 2.01(G)(2). Additionally, it did not directly address any of
the factors provided under 2017 MCSF 2.01(G)(2)(a) to (k). Instead, the court briefly noted that
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Caci had previously been employed and had a limited education, but it did not discuss the
evidence that suggested that her ability to work was limited by her various ailments and did not
state how her educational level affected her earning potential. See 2017 MCSF 2.01(G)(2)(a).
The court also did not discuss whether Caci’s conditions affected the type of work that she could
perform, the amount of hours that she could work in any given week, and whether there was
work available in her community for someone with those limitations. See 2017 MCSF
2.01(G)(2)(c) through (e). Accordingly, although the court’s brief statement implicated some of
the factors, the trial court failed to “articulate information about each factor” and how that
information applied to its finding that Caci had “the actual ability and reasonable likelihood of
earning” the potential income. 2017 MCSF 2.01(G)(4)(c). Contrary to Brandon’s argument on
appeal, 2017 MCSF 2.01(G)(4)(c) clearly requires trial courts to address each factor—if only to
state that it does not apply—and to “articulate” the information that is relevant to that factor and
the failure to do so causes the imputation to be out of compliance with the MCSF. The trial
court’s findings were inadequate under the MCSF. See Ghidotti, 459 Mich. at 199-200.
Moreover, it the trial court improperly inferred that—because Caci could work at some
level—she could earn minimum wage and work full-time. Imputing income on the basis of such
assumptions without examining the parent’s “actual ability and likelihood” is a violation of law
and does not comply with the MCSF. See 2017 MCSF 2.01(G)(4)(a).
Finally, the trial court failed to adequately address the costs that Caci might incur to earn
the potential income even though the MCSF provides that courts “should account for the
additional costs associated with earning the potential income” when imputing potential income.
2017 MCSF 2.01(G)(3). When Caci raised the matter posttrial, the trial court dismissed her
proofs because she had not actually incurred any childcare expenses. But the MCSF does not
impose any such requirement. Rather, it requires trial courts to impute “potential” income with
deductions for the necessarily “potential” costs associated with the “potential” income. See 2017
MCSF 2.01(G)(3).1
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On appeal, Caci invites this Court to hold that the record evidence was insufficient to support
the imputation of income to her or to make its own findings on de novo review. Caci cites
Fletcher, 447 Mich. at 882, for the proposition that this Court may make its own findings on de
novo review. However, our Supreme Court there held that an appellate court’s review of
custody matters is not de novo. Id. And this Court is ill-equipped to make findings of fact,
especially where credibility is at issue. See Stallworth v Stallworth, 275 Mich. App. 282, 285;
738 NW2d 264 (2007) (noting that the trial court is in the best position to judge witness
credibility and stating that this Court will not second-guess credibility determinations). Here,
although the parties did not develop the record on Caci’s health, there was sufficient evidence
from which the trial court could have concluded that Caci had no ability to work or a limited
ability to work. Yet, the trial court could also have found that Caci’s testimony about her
limitations was not credible in whole or part. On that basis, the trial court could have found that
Caci had some unexercised ability to earn income with or without accommodations such as those
that enable her to work at the stable. Therefore, we decline to make our own findings.
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In sum, the trial court erred as a matter of law when it imputed income to Caci without
making the required findings concerning her actual ability and likelihood of earning the potential
income and without analyzing the required factors, and without examining the potential costs
associated with earning the imputed income. Accordingly, we reverse the court’s decision to
impute income to Caci. We further remand this case to the trial court for a hearing to resolve the
dispute over Caci’s potential income, and, if necessary, enter an amended order of child support.
2. DEVIATION FROM MCSF
Caci also argues that the trial court abused its discretion when it refused to modify the
number of overnights used to calculate child support to reflect that she would likely be caring for
the child during periods of the child’s residency with Brandon under 2017 MCSF 1.04(E)(16). A
trial court has the discretion to deviate from the child-support formula if it determines that
application of the formula would lead to an unjust or inappropriate result. Borowsky, 273 Mich
App at 673. When deviating from the formula, the trial court must still “follow the formula
except for the provisions that create an unjust or inappropriate result.” 2017 MCSF 1.04(B).
“Strict application of the formula may produce an unjust result” when one “parent provides a
substantial amount of a child’s day-time care and directly contributes toward a significantly
greater share of the child’s costs than those reflected by the overnights used to calculate the
offset for parental time.” 2017 MCSF 1.04(E)(16).
Caci maintained that Brandon frequently worked long hours. Because the parties’
parenting-time order provided each parent with the right of first refusal if the other parent would
be unable to parent the child for two or more hours, Caci argued that she would in effect be
parenting the child during Brandon’s work shift on those days when the child resided with
Brandon. For that reason, she felt that she would likely incur additional expenses and asked the
trial court to modify Brandon’s overnights to reflect the fact that she would be caring for the
child. However, Caci’s argument with regard to the right of first refusal was speculative and did
not establish that application of the formula would be unjust. The parenting-time arrangement
did not require Caci to assert her right of first refusal, and there was no evidence that she would
invariably be ready, willing, and able to do so for each and every day that Brandon worked.
There was also no evidence that Brandon could not arrange his work schedule to permit him to
parent the child during those periods when the child resides with him. Thus, the trial court did
not abuse its discretion when it refused to deviate from the formula by altering the overnights on
the assumption that Caci would frequently be parenting the child during Brandon’s parenting
time. However, if over time Caci provides child care for greater periods of time than
contemplated by the parties at the time of the court’s order, the court must reconsider the
deviation from the formula in light of the evidence.
3. RETROACTIVE SUPPORT ORDER
Caci argues that the trial court erred when it refused to order that the child-support order
take effect retroactively. Although Caci raised this claim of error in a question presented to this
Court in her brief on appeal, she did not discuss the applicable law, the facts of this case, or the
reason for the trial court’s decision. By failing to offer any meaningful analysis, she has
abandoned this claim of error on appeal. See Mitcham v Detroit, 355 Mich. 182, 203; 94 NW2d
388 (1959).
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V. SPOUSAL SUPPORT
A. STANDARD OF REVIEW
Caci next argues that the trial court abused its discretion when it denied her request for
spousal support. This Court reviews a trial court’s decision whether to order spousal support for
an abuse of discretion. Loutts, 298 Mich. App. at 30.
B. ANALYSIS
The Legislature has authorized trial courts to invade a party’s separate property or order
spousal support as is “just and reasonable, after considering the ability of either party to pay and
the character and situation of the parties, and all the other circumstances of the case.” MCL
552.23(1). “The primary purpose of spousal support is to balance the parties’ incomes and needs
so that neither party will be impoverished, and spousal support must be based on what is just and
reasonable considering the circumstances of the case.” Loutts, 298 Mich. App. at 32. Michigan
courts routinely consider the following factors when deciding whether to award 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, (11) contributions of the parties to the joint
estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on
a party’s financial status, and (14) general principles of equity. [Id. at 31
(quotation marks and citations omitted).]
The parties are entitled to have individual consideration on the facts of their case, and the trial
court may not employ a limited, arbitrary, or formulaic approach to a support determination.
Myland v Myland, 290 Mich. App. 691, 696; 804 NW2d 124 (2010). Rather, the trial court should
make specific factual findings on the factors that are relevant to the particular case. Id. at 695.
The trial court addressed the factors set forth in MCR 2.517(A)(2), finding that Brandon
had the resources to pay spousal support and would leave the marriage with more wealth, but it
did not agree that those factors alone warranted support. The court placed weight on the fact that
the marriage was short, but it did not appear to excessively weigh that factor. The court
considered the short duration of the marriage in conjunction with the evidence that Caci was
relatively young and that—without spousal support—Caci would have a lifestyle after the
marriage that was unchanged from that which she had before the marriage. The trial court
impliedly found that Caci could return to her premarital situation in which she relied on her
mother for significant support. More importantly, the trial court found that Caci had an
unrealized ability to earn more income and had inflated her claimed needs beyond what was
reasonable.
To the extent that Caci had the unrestricted ability to work full-time and could continue
to indefinitely rely on her family for support with housing and living expenses, the trial court
might reasonably conclude that Caci would not be impoverished. But it was not clear from the
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record that Caci would be able to rely on her mother to the same degree that she had previously
relied on her, and the record in that respect was not adequate to support such a finding. This is
especially true given that Caci now has a young child to care for in addition to meeting her own
needs. Moreover, the trial court found that Caci suffered from various medical conditions, which
would presumably affect her ability to work and care for a young child. Yet, the court
inexplicably found that she would be able to work full-time in her community without any
restrictions or limitations. The trial court also ignored the evidence that Caci’s lifestyle had
improved with the marriage and determined that it was not inequitable to expect Caci to return to
her previous lifestyle even while Brandon’s lifestyle had improved during the course of the
marriage. Brandon continued to have a high-paying job and had improved his real property,
which was in the process of reclamation and which he would likely own in his own name at
some point in the future. Brandon had also acquired new farm equipment for his farming
operation, and his farm operation would likely improve with the reclamation of a gravel pit and
the acquisition of new equipment. Additionally, after the divorce, Brandon would no longer
have to maintain Caci’s vehicle payments, her insurance, or her other expenses. In this way,
Brandon’s lifestyle improved after the divorce while Caci’s regressed.
We conclude that the trial court’s decision was inequitable on its face—especially given
the extreme disparity in the parties’ income and the apportionment of the assets. On this record,
the evidence showed that Caci would suffer a substantial reduction in her lifestyle during the
transition from married life to single life and that she would be compelled to seek support from
family members to avoid being impoverished when Brandon had the ability to provide limited
support to help Caci’s transition. See Magee v Magee, 218 Mich. App. 158, 163-164; 553 NW2d
363 (1996) (holding that the trial court abused its discretion because the evidence showed that
the award left the plaintiff with no reduction in his financial position whereas it left the defendant
impoverished in the short term). The trial court abused its discretion when it determined that
Caci would not require any spousal support for any period. Consequently, we reverse the trial
court’s decision in this respect and vacate the trial court’s judgment to the extent that it denied
Caci’s request for spousal support. We instruct the trial court to reconsider whether to order
support after it resolves the factual dispute concerning whether and to what extent income should
be imputed to Caci for purposes of calculating child support.
VI. ATTORNEY FEES
Finally, Caci argues that the trial court erred when it denied her request for attorney fees.
Under MCR 3.206(D),
(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
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(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.
In addition, Michigan courts have recognized that a trial court may award a party his or her
attorney fees when he or she was forced to incur the fees as a result of the opposing party’s
unreasonable conduct. See Borowsky, 273 Mich. App. at 687. The party requesting the fees has
the burden of showing facts sufficient to justify the award. Id.
Caci argued that the trial court should order Brandon to pay her attorney fees as
authorized under MCR 3.206(D). The trial court found that Brandon had not engaged in
unreasonable conduct and denied the award. The record does not show that either party engaged
in the kind of unreasonable litigation tactics that might justify an award of attorney fees as stated
under Borowsky, 273 Mich. App. at 687. Therefore, the trial court did not clearly err when it
found that neither party had engaged in unreasonable conduct that unnecessarily increased the
cost of litigation.
Caci did, however, present evidence that she incurred an estimated $12,000 in attorney
fees, that she incurred various costs totaling approximately $1,700, that she had no ability to pay
the costs and fees, and that she had to borrow $5,000 from family to pay her fees. There was
also ample evidence that Brandon had the ability to pay all or part of Caci’s fees. Despite this
evidence, the trial court completely failed to address her request for attorney fees under MCR
3.206(D). Because the trial court failed to make any factual findings or provide any rational for
its decision to deny fees premised on need, this Court cannot review the trial court’s decision.
On remand, the trial court shall specifically address Caci’s request for attorney fees under MCR
3.206(D)(2)(a).
Affirmed in part, reversed in part, and remanded for further proceedings. We do not
retain jurisdiction. Caci may tax costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Jane E. Markey
/s/ Elizabeth L. Gleicher
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