Cohen v. Cohen

125 Mich. App. 206 (1983) 335 N.W.2d 661

COHEN
v.
COHEN

Docket Nos. 55407, 57478, 57479, 59797, 59798, 61077, 61078.

Michigan Court of Appeals.

Decided March 11, 1983.

Gromek, Bendure & Thomas (by James G. Gross), and Leonard Lemberg, P.C. (by Richard G. Partrich), for Brenda Cohen.

Sue Ann Canvasser, for Joseph Cohen.

Before: M.F. CAVANAGH, P.J., and R.B. BURNS and CYNAR, JJ.

PER CURIAM.

This case stems from a divorce action between Brenda Cohen (hereinafter plaintiff) and Joseph Cohen (hereinafter defendant). The property settlement incorporated into the divorce judgment provided that the plaintiff and the defendant would own the marital home as joint tenants with rights of survivorship until it was sold. The sale of the home blossomed into another dispute between the parties and resulted in a series of motions and orders which are now the subject of the plaintiff's appeal. Rather than listing each order at the outset, we will refer to each as we discuss the issues the plaintiff raises for our consideration.

Plaintiff first argues that the trial court lacked subject matter jurisdiction to grant the relief requested by the defendant in his motion to enforce the divorce judgment and thus its orders with relation to that judgment are void. Defendant had moved to enforce the divorce judgment when the plaintiff refused to cooperate in the sale of the marital home to Jack Weissberg and Doreen Weissberg. Plaintiff claims that the trial court lacked subject matter jurisdiction over the defendant's mopion because the defendant had quit-claimed his interest in the marital home to the plaintiff, thereby destroying the estate created by the divorce judgment and leaving no property interest subject to the court's jurisdiction. Plaintiff glosses over the fact that she executed a quitclaim deed to the defendant on the same day he executed his to her, conveying her rights in the property to herself and the defendant as joint tenants. The trial court held that the two deeds cancelled each other and thus did not modify the divorce decree.

We find the plaintiff's claim that the trial court lacked subject matter jurisdiction over the property at issue to be without merit. The court clearly had subject matter jurisdiction over the property when it entered the original divorce judgment. As we stated in Schaeffer v Schaeffer, 106 Mich App 452, 457-458; 308 NW2d 226 (1981):

"A court possesses inherent authority to enforce its own directives. A divorce case is equitable in nature, and a court of equity molds its relief according to the character of the case; once a court of equity acquires jurisdiction, it will do what is necessary to accord complete equity and to conclude the controversy. Moreover, MCL 600.611; MSA 27A.611 provides:

"``Circuit courts have jurisdiction and power to make any order proper to fully effectuate the circuit courts' jurisdiction and judgments.'" (Footnotes omitted.)

Plaintiff's argument with respect to the two quit-claim deeds seeks, in effect, to have us review the merits of the trial court's decision on the defendant's motion for enforcement of the divorce judgment. Since the plaintiff has not appealed from that order, we are not free to review its substantive propriety.

Plaintiff next argues that the trial court erred in consolidating the plaintiff's action for a declaratory judgment concerning the ownership of the property with the defendant's action to enforce the divorce judgment. GCR 1963, 505.1 provides for the consolidation of cases pending before the court which involve "a substantial and controlling common question of law or fact". Consolidation is improper where the overlap of proofs is merely incidental and where consolidation may prejudice a party because of possible confusion by the trier of fact. Sullivan v The Thomas Organization, PC, 88 Mich App 77, 86; 276 NW2d 522 (1979).

We find that there was a substantial and controlling question of law and fact involved in the two actions which were consolidated. In each case the central question was whether the defendant had any property rights in the marital home following the execution of the two quitclaim deeds. However, the plaintiff is correct in arguing that the two cases were improperly consolidated because the defendant's action to enforce the divorce judgment was no longer pending but had already been decided. As we previously noted, GCR 1963, 505.1 provides only for consolidation of cases pending before the court. Although the consolidation was erroneous, we find the error to be harmless because GCR 1963, 926.4(a) provides that actions growing out of the same transaction or occurrence are to be assigned to the same judge. Since the same judge was required to hear both cases, the consolidation of the cases did not prejudice the plaintiff.

Plaintiff next argues that the trial court erred in granting the defendant's motion for accelerated judgment. Defendant had moved for an accelerated judgment dismissing the plaintiff's suit based on the doctrines of res judicata or collateral estoppel. GCR 1963, 116.1(5) provides that an accelerated judgment may be granted upon the ground that a claim is barred by a prior judgment. In order for a claim to be barred on the basis of res judicata, the following three elements must be present: (1) the prior action must have resulted in a judgment on the merits, (2) the issues raised in the second action must have been raised and decided in the prior action, and (3) both actions must involve the same parties or their successors in interest. San Joaquin County, California v Dewey, 105 Mich App 122, 130-131; 306 NW2d 418 (1981).

In the instant case, both actions involved the same parties. The defendant's prior action to enforce the divorce judgment was decided on its merits, after a hearing at which both parties were given an opportunity to present evidence. We find that the issue raised in the second case, i.e., whether the plaintiff had rights in the property other than those which had been granted by the divorce, had already been resolved in the defendant's prior action. The trial court did not err in granting the defendant's motion for accelerated judgment on the basis of res judicata.

Plaintiff next argues that the trial court erred in granting the defendant's motion for attorney fees in the plaintiff's declaratory judgment action because such fees may not be awarded when a case is dismissed prior to trial. We agree. This Court has held that an award of attorney fees under GCR 1963, 111.6 is not permissible where the case has been dismissed prior to trial; the grant of an accelerated judgment is such a dismissal. Reppuhn v Abell, 97 Mich App 407; 296 NW2d 44 (1980); Goodrich Theaters, Inc v Warner Brothers Distributing Corp, 103 Mich App 548; 302 NW2d 913 (1981).

The remaining three issues involve the receiver appointed by the trial court to sell the property in question. Plaintiff argues that the trial court erred in granting the receiver's motion to recover personal property or damages, with respect to fixtures the plaintiff removed from the home, because the receiver had no authority to make the motion, erred in awarding excessive fees to the receiver, and erred in awarding fees to pay for the expenses of the receiver's appellate counsel.

MCL 600.2926; MSA 27A.2926 provides that circuit court judges "may appoint receivers in all cases pending where appointment is allowed by law". The phrase "allowed by law" does not require the presence of statutory authority, although such exists in certain situations. Rather, this Court has interpreted that phrase to mean: "(1) those cases where appointment of a receiver is provided for by statute and (2) those cases where the facts and circumstances render the appointment of a receiver an appropriate exercise of the circuit court's equitable jurisdiction". Petitpren v Taylor School Dist, 104 Mich App 283, 294; 304 NW2d 553 (1981). The appointment of a receiver may be appropriate when other approaches have failed to bring about compliance with the court's orders. Petitpren, supra, p 295.

We find no error in the court's appointment of a receiver or the court's grant of the receiver's motion to compel the plaintiff to return the fixtures or pay damages. The primary purpose of a receiver is to preserve property and to dispose of it under the order of the court. Westgate v Westgate, 294 Mich 88, 91; 292 NW 569 (1940). Here, the receiver was acting properly in attempting to secure the return of the fixtures which the plaintiff admitted she had removed from the property. No one, including a party, has the right to interfere with property which is in the court's possession through its receiver, and the receiver has the right and duty to seek the court's assistance in preserving the property in good condition.

Furthermore, we do not find that the fees awarded to the receiver were excessive. Receivers have a right to compensation for their services and expenses, Fisk v Fisk, 333 Mich 513, 518; 53 NW2d 356 (1952), and we find the award reasonable in light of the actions the receiver was required to take in order to protect the property.

Lastly, the plaintiff argues that the trial court erred in ordering the plaintiff to pay the expenses of the receiver's appellate counsel. We disagree. The court had the authority to award the receiver's appellate attorney fees when such fees were necessary to the performance of the receiver's duties. In re Dissolution of Henry Smith Floral Co, 260 Mich 299, 303; 244 NW 480 (1932). In this case, the appointment of a receiver was made necessary by the plaintiff's actions in interfering with the sale of the marital home, and the plaintiff's subsequent appeal necessitated a response by the receiver's attorney because it raised an issue regarding the performance of the receiver's duties. Since appellate attorney services were actually rendered, fees for those services may be taxed. See MCL 600.2522; MSA 27A.2522.

The trial court's orders consolidating the cases, granting accelerated judgment, granting the receiver's motion for damages to replace personal property taken from the home, and granting the receiver's fees and the receiver's appellate attorney fees are affirmed. The court's order granting the defendant's attorney fees is reversed.

Affirmed in part, reversed in part. No costs, neither party having prevailed in full.