Family law – fees – divorce

Where a defendant in a divorce proceeding is denied attorney’s fees, that decision must be upheld because the defendant failed to prove (1) that it was unable to bear the expenses of the proceeding and that the plaintiff was able to pay or (2) it incurred the fees and costs because the plaintiff disobeyed a prior order from the court or violated some rules during the discovery.

“In this divorce case, the Defendant, Ray James Foster, files a counter-appeal with the right to order the lower court to refuse to award attorneys’ fees and costs from the Plaintiff, Deborah Lynn Foster. We affirm.

“The dispute between the parties has been going on for more than a decade and has been brought before both this court and our Supreme Court on numerous occasions to address the division of military benefits as set forth in the parties’ divorce judgment in 2008.

“The defendant alleges that the court abused its discretion by not awarding attorneys’ fees and costs. We disagree.

“At the outset, we notice that the subject before us is a narrow one, which is paying attorney’s fees and costs. Michigan follows the “American Rule” that “attorneys’ fees are non-refundable as a component of costs or damages unless expressly permitted by law, court order, common law exception, or contract.” Colin vs. Colin, 331; Mitch App 295, 300; 952 NW2d 558 (2020) (quotation marks and citations omitted). For cases involving divorce, recovery of attorneys’ fees is subject to both statute and court order, namely MCL 552.13 and MCR 3.206(D). … Neither party has the absolute right to recover attorneys’ fees and costs.

In this case, in support of his application for attorneys’ fees, the Defendant highlighted the extent of litigation that had taken place since 2014, which included numerous appeals before this court and our Supreme Court. This, he said, had forced him to “incur additional costs, expenses and attorneys’ fees.” to defend this appeal” and that he would continue to do so because the plaintiff requested review from our Supreme Court. He asserted that the costs and fees requested were reasonable due to his attorney’s experience, fixed fees, and hourly rate, which the plaintiff did not object to. However, it was evidently absent Any proof by the Defendant that (i) it was unable to bear the costs of the proceeding and that the Claimant was able to pay, or (ii) that it incurred the fees and costs because the Claimant disobeyed a previous court order or violated some rules during discovery. … through Failure to show either of these two conditions, the defendant’s application for attorneys’ fees fails.

Nor are we convinced that the decision of the Court of First Instance would lead to an unfair outcome. … Although this dispute dragged on for many years and caused the defendant – and the plaintiff – to incur fees and costs, the procedural history of this case demonstrates the complexity of the cases involved and the uncertainty of the law governing them. Requiring the plaintiff to pay the defendant’s fees and costs would essentially amount to a penalty for exercising her rights of appeal to fully litigate the issues raised and obtain a final resolution. The defendant did not undertake its burden to prove that the trial court’s decision was outside the scope of reasonable and preliminary consequences.

Foster v. Foster; Milo 08-106822, 6 pages; The Michigan Court of Appeals is not published per Coriam; Letica, J., Borello, J., Riordan, J.; On appeal from the Dickinson Circuit Court; Adam L. Kropstadt to the appellant; Carson J. Tucker for the Respondent.

Click here to read the full text of the opinion.


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