The opinion
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
TONI LYN MARTINEZ, f/k/a TONI LYN CARR, UNPUBLISHED
August 19, 2021
Plaintiff-Appellee,
v No. 351858
Clinton Circuit Court
DEREK CARR, LC No. 2016-026942-DO
Defendant-Appellant.
TONY LYN MARTINEZ, f/k/a TONI LYN CARR,
Plaintiff-Appellee,
v No. 352729
Clinton Circuit Court
DEREK CARR, LC No. 2016-026942-DO
Defendant-Appellant.
Before: STEPHENS, P.J., and K. F. KELLY and RIORDAN, JJ.
PER CURIAM.
These appeals are a culmination of contentious, constant, continuous and acrimonious post-
judgment litigation; or, as the trial court stated it is “a case that never lacked for a new dispute.”
In Docket No. 351858, defendant appeals as of right the trial court’s opinion and order
denying his request for attorney and expert witness fees purportedly incurred to obtain enforcement
of the provisions in the consent judgment of divorce. In Docket No. 352729, defendant appeals
by delayed leave granted the trial court’s opinion and order declining to reimburse the costs and
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penalties incurred as a result of plaintiff’s failure to comply with the joint tax return provision of
the divorce judgment.1 Finding no errors warranting reversal, we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant were married in 2003, and had no children. In October 2016,
plaintiff filed her complaint for divorce. Thereafter, multiple motions were filed before the trial
court to address issues including exclusive occupation of the marital home, the release of the
parties’ assets to pay attorney fees, the release of defendant’s medical records to support his
claimed need for spousal support, and the exclusion of the medical records at trial. In February
2017, the parties filed a stipulation and order to set aside a mutual temporary restraining order in
light of the resolution of the divorce through a confidential settlement agreement (CSA). The
terms of the CSA were to be incorporated into the consent judgment of divorce.
In May 2017, after the CSA was executed, but prior to the entry of a divorce judgment,
defendant filed a motion to enforce the CSA.2 Specifically, defendant claimed that the parties’
firearms were in the hands of a dealer, and plaintiff failed to comply with the CSA provision
regarding delivery of the firearms to him. Also in this agreement, plaintiff purportedly was
responsible for the costs associated with the enforcement of the firearms provision. Further,
defendant alleged that plaintiff breached the CSA by disclosing its terms to the dealer holding the
firearms, and therefore, plaintiff was responsible for $5,000 in liquidated damages for this breach.
Finally, although plaintiff obtained exclusive possession of the marital home in October 2016,
defendant requested that she repay him for the period of occupancy between December 2016 and
March 2017, for outstanding expenses of $7,306.68 that she failed to pay. Accordingly, defendant
sought attorney fees and costs for enforcement of the CSA.
In May 2017, plaintiff filed an answer to this motion. She contended that, in accordance
with the CSA, the parties had completed a consent judgment of divorce and were waiting for
defense counsel to circulate it for signatures. Furthermore, because the CSA and judgment of
divorce resolved outstanding issues raised by defendant, plaintiff contended that defendant’s
motion was frivolous and was merely designed to delay the proceedings. Plaintiff also claimed
that she recently began a “dating relationship” with the firearms dealer, Dr. Michael Hoppe, and
defendant’s animosity toward the couple caused him to “frustrate” the proceedings. She denied
the allegation that she failed to comply with the firearms transfer requirement of the CSA. Rather,
plaintiff asserted that Dr. Hoppe was advised by his counsel to transfer the guns only after entry
of the divorce judgment and to transfer the guns directly to defendant because federal criminal
liability could occur if he presented the guns to plaintiff for delivery to defendant. Moreover,
plaintiff claimed that defendant and his counsel could have simply picked up the guns directly
1
In addition to granting leave, the appeals were consolidated. Martinez v Carr, unpublished order
of the Court of Appeals entered March 23, 2020 (Docket No. 352729).
2
This motion also alleged that plaintiff and her counsel committed discovery violations regarding
defendant’s medical and business records. These purported violations are not challenged on
appeal.
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from Dr. Hoppe, raised issues that were believed resolved by the proposed judgment, and attorney
fees should be awarded to her for having to respond to the frivolous motion.
Addressing the alleged disclosure of confidential information in the CSA, plaintiff claimed
that it was defense counsel that should be sanctioned for his preparation of an affidavit for Dr.
Hoppe’s signature that disclosed firearm information. Addressing home expenses, plaintiff
contended that defendant’s company, “The HelpDesk LLC,” paid him $7,500 a year to cover home
business expenses such as electric, heating and cooling, and waste management. Therefore,
defendant should have pursued entry of the judgment and filed a motion if there was
noncompliance with its provisions. Plaintiff requested attorney fees, costs, and sanctions for
having to respond to defendant’s frivolous motion.
On May 26, 2017, the trial court heard oral argument on the breach of the CSA motion.
Although a judgment of divorce was presented to the court, the trial court agreed to delay signing
the judgment until June 2, 2017, to allow defendant to have a medical procedure covered by
plaintiff’s insurance. Defense counsel argued that there were outstanding issues related to delivery
of defendant’s guns, nearly $7,900 in expenses for plaintiff’s sole occupancy of the marital home
between October 2016 and March 2017, plaintiff’s disclosure of confidential information for
which $5,000 was the penalty, and plaintiff’s obligation to present paperwork to defendant to
acquire COBRA insurance coverage. Because defendant’s medical costs were over $100,000 a
month, counsel also sought a penalty to hold plaintiff responsible for failing to provide the
insurance information, although defendant was responsible for the premium costs. The trial court
declined defendant’s invitation to “write” an insurance document penalty provision into the
judgment, but noted the parties could seek a penalty for noncompliance with any agreed to
provision. The trial court scheduled an evidentiary hearing for June 2017, to hear witnesses and
present evidence addressing the issues raised.
However, counsel for Dr. Hoppe, Jennipher Martinez (Martinez),3 was present and testified
that defense counsel discussed the terms of the CSA between the parties in a phone conversation
addressing how to transfer the guns. Additionally, Martinez indicated that she read defendant’s
motion and the affidavit that he prepared for Dr. Hoppe to sign. This affidavit disclosed that Dr.
Hoppe was a firearms dealer and how many guns were stored. Upon questioning by the court,
Martinez testified that she appeared in court to ensure that Dr. Hoppe, as a federally licensed
firearms dealer as well as an acupuncturist, did not violate any federal laws. Dr. Hoppe was willing
to deliver the guns directly to defendant. Martinez brought a spreadsheet delineating each gun and
requested a designation regarding the party who should receive each gun. Defense counsel noted
that 10 guns were at issue and would be owned by a trust, but the owner would not be named on
the record at that time. The hearing concluded. On June 2, 2017, the trial court signed the
judgment of divorce.
In July 2017, defendant filed an amended motion to enforce the parties’ CSA. The defense
asserted that plaintiff was obligated to ensure the delivery of firearms to defendant within 15 days
after Dr. Hoppe received the firearms and all necessary federal approval. Despite Dr. Hoppe
informing the parties on May 19, 2017, that all pending firearm approval was secured, a date and
3
She was not related to plaintiff.
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time for delivery of the firearms was never given. At the hearing on June 20, 2017, it was asserted
that the transfer of the firearms would occur that week, but it was later represented that Dr. Hoppe
was unavailable to make the transfer. Despite repeated attempts to schedule the delivery, neither
Dr. Hoppe nor plaintiff communicated a potential date since June 29, 2017. After the defense
contacted plaintiff’s counsel, Dr. Hoppe provided tentative dates in July and August. Because
plaintiff failed to ensure the delivery within 15 days of May 19, 2017, she was responsible to
indemnify defendant for costs incurred in light of the divorce judgment’s enforcement provisions.
Therefore, defendant requested that Dr. Hoppe deliver the guns in the courthouse parking lot one
hour before the scheduled hearing date on the motion. Additionally, it was claimed that plaintiff
failed to comply with the COBRA insurance coverage provision and the qualified domestic-
relations order (QDRO) requirements. Defendant requested compliance with the judgment
provisions or reimbursement for the purchase price of the guns and costs and attorney fees.
On July 18, 2017, the court heard oral argument regarding the motion to enforce the CSA.
The parties resolved the COBRA benefit issue as well as the QDRO issue and submitted it to the
court for signature and entry. The firearms were to be delivered that evening. However, the parties
needed to resolve the issue of expenses for the marital home between December 2016 and February
2017.4 Although plaintiff was granted occupancy of the marital home, defendant ran his business
from that home, and his computer servers were located there. An agreement was reached to allow
defendant to work at the home from 10 a.m. to 8 p.m., but there were allegations that plaintiff
changed the locks. While defendant took money from his business for its operation expenses,
plaintiff’s counsel represented there was no stipulation regarding whether that amount could be
subtracted from defendant’s obligations, and the divorce judgment did not address this issue.
However, defense counsel claimed that plaintiff had exclusive possession and submitted a portion
of the CSA to the court to support his contention that the expenses should be paid by her. For
purposes of the hearing that day, the defense withdrew the challenge to a breach of the CSA.
Defendant represented he would need plaintiff’s continuing cooperation regarding insurance and
the QDRO, and he was entitled to attorney fees for the failure to ensure the timely transfer of the
firearms. In reply, plaintiff’s counsel asserted that defendant paid rent through his business, and
plaintiff’s expenses should be reduced by the amount each month that defendant paid himself for
the business expenses. The trial court ordered plaintiff to pay $7,053 or three months of expenses
at a rate of $2351 as found in the CSA because the CSA made her responsible for the home
expenses, and there was no setoff for defendant’s business expenses. The trial court acknowledged
that defendant requested attorney fees for enforcement of the CSA and divorce judgment, but had
not submitted an itemization. Therefore, the trial court would “leave that issue open.”
In November 2017, defendant filed a motion for attorney fees and costs for enforcement of
the consent judgment of divorce. Specifically, defense counsel noted that the trial court ordered
plaintiff to pay $7,053 in monthly expenses for the sole occupancy of the marital home through
February 2017. Additionally, plaintiff represented that she would ensure that the firearms were
transferred to defendant in a timely manner, but defendant did not secure the firearms for 31 days
after receiving notice that the firearms were federally approved for transfer. Thus, defendant was
4
Although defendant initially requested expenses through March 2017, the expense request was
now limited to the period between October 2016 and February 2017.
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forced to file motions to obtain plaintiff’s compliance with the CSA and divorce judgment.
Furthermore, defendant obtained disability benefits because of medical conditions and needed his
explanation of benefits (EOB) forms from 2016 to obtain the diagnosis and procedure codes to
determine the level of insurance coverage that he needed. Despite the request of EOBs from 2016,
plaintiff only provided a six-month period from the year 2017. Although defendant attempted to
obtain this information directly from the insurer, his request was denied. It was claimed that
plaintiff denied the defense request for assistance because she did not want her address disclosed,
yet she could have provided the information with redactions. Time was of the essence because
defendant needed to select coverage by December 15, 2017, for 2018. Additionally, the parties
were to file joint 2016 tax returns. Defendant assumed responsibility for the preparation and
submitted the returns to plaintiff for signature. Ultimately, plaintiff declined to sign and instead
filed a tax return as “married filing separate.” Consequently, defendant allegedly incurred
additional tax liability and penalties. Thus, he sought attorney fees and costs necessary to enforce
the CSA and divorce judgment in amounts of $11,133.75 and $571.50 respectively. Further,
defendant requested enforcement of the benefit and tax provisions of the divorce judgment and
attorney fees and costs caused by plaintiff.
In November 2017, plaintiff filed her answer to defendant’s motion for attorney fees and
costs. Plaintiff acknowledged that the trial court ordered her to pay $7,053 for home expenses, but
asserted that the issue required court intervention because defendant operated his business from
the basement of the home and the rent was paid by the business. Additionally, plaintiff claimed
that defendant had access to the EOBs through Blue Cross and Blue Shield (BC) online at least
until June 7, 2017. Instead of acting with due diligence to obtain the information defendant needed,
he repeatedly blamed plaintiff for his shortcomings. Further, plaintiff allegedly contacted BC on
two occasions, learned that defendant could obtain the EOBs for his own account, and requested
BC send defendant the EOBs. Plaintiff admitted that she did not want defendant to know her
address because of prior years of “verbal and emotional abuse.” She nonetheless denied any
attempt to circumvent defendant’s receipt of necessary information and expressed her goal to
“sever every conceivable tie with the defendant.”
In her response to defendant’s motion, plaintiff denied a relationship with Dr. Hoppe at the
time of the CSA, but the pleading admitted they were dating “at the time of the Judgment of
Divorce.” Despite the relationship, plaintiff denied making any effort to frustrate the delivery of
the firearms. She further denied disclosing any terms of the CSA, but alleged that defendant
attempted to have Dr. Hoppe sign an affidavit that divulged contents of the CSA, and therefore,
that document should be sealed. More importantly, defendant tried to have plaintiff violate federal
firearms law by having her transfer the weapons to him instead of a direct conveyance by Dr.
Hoppe to defendant as the transferee. Addressing the tax returns, plaintiff contended that
defendant untimely pursued the tax returns and demanded that she sign a return that her own
accountant could not closely examine and verify. After consulting with a certified public
accountant (CPA) regarding liability for civil and criminal penalties and his expert opinion that
defendant’s joint tax return was prepared incorrectly, plaintiff timely filed her own individual tax
return. Defendant could not blame a loss of tax savings on plaintiff when he obstructed the timely
filing. Finally, plaintiff denied that her conduct caused defendant to incur attorney fees, but blamed
his own actions for the delay in firearm delivery and other issues. She contested over 26 entries
of attorney fees submitted by defense counsel for a failure to delineate the subject matter of the
service or the failure to correlate the entry to enforcement of the CSA or divorce judgment.
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On November 22, 2017, the trial court heard oral argument on the attorney fees motion.
Defendant argued that he was entitled to attorney fees and costs for the efforts expended in
obtaining the return of the firearms. Additionally, plaintiff agreed in the CSA to assist in
defendant’s retention of health benefits and to file a joint income tax return. Although defense
counsel requested over $11,000 in attorney fees, he subtracted from that amount the time expended
on the medical records and CSA breach issues that had been withdrawn. Defense counsel did not
bring witnesses to the hearing to address reasonableness of his requested attorney fees. The trial
court concluded that it would hold an evidentiary hearing regarding attorney fees.
Despite the trial court’s decision to conduct a hearing, plaintiff was given the opportunity
to make a record. Plaintiff’s counsel noted that defendant was in contact with BC, and he was
given specific guidance and the necessary forms to fill out for insurance. Addressing the tax issue,
plaintiff purportedly reached out to defendant when the tax deadline was approaching. When no
response was received, she communicated with the couple’s tax preparer. In turn, the tax preparer
contacted defendant, and defendant fired him. Because defendant prevented the timely
presentation of a joint tax return, plaintiff necessarily had to file separately, and her accountant
had an opinion about the loss and benefit of that action. The trial court agreed that expert witnesses
could be called at the hearing.
In July 2018, plaintiff filed her own motion for CSA sanctions and liquidated damages.
She claimed that defendant violated the terms of the CSA on eight occasions, and the CSA
contained a liquidated damage provision of $5,000 for the first violation, $10,000 for the second
violation, and so on. Plaintiff alleged that she was entitled to $180,000 in liquidated damages for
defendant’s violations as well as recovery of attorney fees.
On August 23, 2018, the trial court held a hearing on plaintiff’s liquidated damages motion.
Defense counsel stated that he was waiting for resolution of a home repair and financing issue
before pursuing his attorney fee sanctions. With regard to the tax issue, plaintiff’s counsel asserted
that defendant submitted the tax returns to her on October 12, 2017, but when plaintiff gave them
to her accountant, he advised that they were incorrect. Therefore, plaintiff was forced to submit
her own return as married, filing separately, and incurred an additional $2700 in taxes. On the
contrary, defendant asserted that plaintiff was at fault for causing him to incur an additional $2700
in taxes.
At this hearing, Michael S. Flintoff, plaintiff’s CPA, testified that he reviewed a joint tax
return and a married filing separate tax return prepared by Dave Remick, an attorney who also
acted as an accountant, but was not a CPA. Flintoff expressed concern with the tax returns because
the property taxes were not itemized and the underlying documentation pertaining to the income
tax return for defendant’s business was not submitted for vetting. Because the business acted as a
“pass through” company and took aggressive deductions, Flintoff advised that there was the
possibility of an audit and personal tax liability. To avoid potential liability, Flintoff advised
plaintiff to file separately or file on a joint return basis if she could obtain a hold harmless provision
from defendant. It was generally “cheaper” to file on a joint basis. Because of the limited
timeframe, Flintoff was unable to negotiate a hold-harmless agreement for plaintiff and opined
that there were “control” not economic issues involved with defendant.
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Flintoff testified that the joint tax return with itemized deductions that he prepared for the
parties resulted in a refund of $640. The tax return that he submitted for plaintiff with a standard
deduction resulted in a refund of $261. Although Flintoff did not review the divorce judgment, he
was told that it provided for a joint tax return. When asked why he did not advise plaintiff to seek
a modification of the tax provision in court, Flintoff testified that the need to file a tax return in
three days eliminated the “possibility of a quick and speedy resolution.” He did not want plaintiff
to be subject to a late filing penalty, and advised her of the potential economic consequences of
the divorce judgment. In considering the choice, plaintiff had to minimize the risk associated with
filing a joint return and to protect herself because her signature on the tax return represented that
the return was true and accurate, subject to a penalty of perjury. The hearing was continued.
In September 2018, defendant sought court assistance pertaining to the refinancing of the
marital home to allow him to remove plaintiff’s name from the existing mortgage. On September
26, 2018, the trial court held a hearing on defendant’s motion to compel plaintiff to sign a release
to allow work to be done on the former marital home in order to facilitate defendant’s refinancing
of the property. The refinancing would permit defendant to discharge plaintiff from any liability
on the home. However, defendant was also involved in litigation with the builder of the home.
The builder agreed to a settlement, but insisted on having a release from both defendant and
plaintiff. Plaintiff’s counsel responded that defendant asked for favors from plaintiff without
regard to her needs and opined that refinancing should occur within a certain period of time to
resolve the case. The trial court noted that the litigation with the builder was pending in another
court, and therefore, the issue of settlement approval or release was “nonexistent” in this case. It
further opined that the settlement and refinancing were separate and distinct issues. The trial court
apprised the parties to return in November, and the motion was denied without costs or attorney
fees.
The evidentiary hearing resumed in February 2019. The parties advised that the home
ownership issue was resolved with plaintiff’s name removed from the deed. Plaintiff’s counsel
then proceeded to introduce documentary evidence to support the claim that defendant violated the
CSA by disclosing confidential information and sought $180,000 in liquidated damages for the
eight violations. In contrast, defendant submitted a binder of documents that indicated that some
of the disclosures were necessary, permissible, and contemplated by the parties.5
For the defendant, Patricia M. Ouellette, attorney, CPA, and spouse of Remick, testified
that she prepared a 2016 joint income tax return for the parties and a separate income tax return
for defendant. Ouellette concluded that the 2016 tax return, if submitted as married filing jointly,
would have resulted in a refund of $1436, and defendant would have received $718. However,
defendant instead paid $1160 in taxes using the married, but filing separately return because he
did not have withholdings. Also, he owed $163 in state taxes, but was further assessed penalties
and costs. Thus, if the parties had filed jointly, a net refund of $1255 would have been obtained
with each party receiving $628. Ouellette opined that it cost defendant $2,180 to file separately as
5
Although plaintiff initially sought to pursue a cross appeal addressing the denial of her motion
for liquidated damages, the parties stipulated to dismiss the cross appeal.
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opposed to a refund of $628 if he filed jointly. Ouellette opined that the divorce judgment required
the parties to file a joint tax return, share any refund, and pay any costs.
On May 21, 2019, the hearing resumed to address defendant’s request for attorney fees.
Ouellette was recalled to provide testimony addressing the reasonableness of the fees. To reach
an opinion on reasonableness, Ouellette reviewed motions, pleadings, transcripts, emails,
documents, letters, subpoenas, and the complete billings. She examined the charges pertaining to
firearms, taxes, QDRO, and house expenses by evaluating the date, the charge, and the activity
performed. After reviewing the written pleadings and hearings, Ouellette allocated $15,669 in
reasonable attorney fees for firearms. She opined that although it was “ludicrous” to spend
multiple hearings on the issue of firearms, and the attorney fees “were necessary.”
With regard to taxes, Ouellette testified that the divorce judgment required that the parties
“shall” file a 2016 joint tax return with shared refunds and liabilities, but it was not filed. A joint
tax return was prepared close in time to the due date of October 15, 2017, and she opined that
despite the late preparation date, the return could have been filed timely or amended after the filing
date. Because of the difficulty obtaining tax records, Ouellette opined that $9,713.02 was
expended in attorney fees for the total time it took to address the income tax issue. Additionally,
$849 in reasonable attorney fees was expended to prepare the QDRO. Ouellette also opined that
$1,764.81 was a reasonable attorney fee for enforcement of the divorce judgment pertaining to the
household expenses. With regard to the claim for reimbursement for attorney fees for refinancing
the marital home, Ouellette noted that it was in plaintiff’s best interests for defendant not to secure
refinancing because the home would be sold and plaintiff would receive some of the proceeds.
Further, it was alleged that plaintiff attempted to shorten the time period allotted for refinancing.
Therefore, Ouellette opined that the $5,244.27 requested for attorney fees was reasonable. She also
asserted that $1,707 was a reasonable attorney fee incurred for litigating issues pertaining to the
CSA. Finally, Ouellette submitted her fees for examining the tax returns in the amount of $4,590
and for her expert testimony regarding reasonableness of the attorney fees, charging $22,050. Her
hourly rate for services was $300.
On September 18, 2019, the final date of the evidentiary hearing occurred. On cross-
examination, Ouellette acknowledged she testified that the over $15,000 in attorney fees was
reasonable to address the firearms issue, but she had no information regarding plaintiff’s failure to
facilitate a prompt transfer. Rather, she asserted that the CSA contained a facilitation requirement
and the firearms dealer was plaintiff’s boyfriend. She also testified that $14,000 in attorney fees
and expert fees were reasonable and necessary to reach a conclusion regarding the proper amounts
of taxes owed, despite the fact that the potential refund at issue totaled $2,180. Additionally,
Ouellette continued to assert that the over $5,400 requested pertaining to the refinancing and
release was necessitated by plaintiff while acknowledging she was unaware to what extent plaintiff
caused any delay in signing the release and whether plaintiff’s signature had any bearing on
refinancing.
Plaintiff’s expert, local family law attorney Robin Omer, disagreed that the over $15,000
requested for the firearms issue was reasonable. The CSA was signed in February 2017, and the
divorce judgment was signed in June 2017. The correspondence during that time period did not
involve plaintiff or indicate that she was uncooperative in transferring the firearms. There was a
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stipulation reached by the parties regarding the recipient of each firearm. Therefore, it was the
dealer who needed to make the transfer, and that correspondence reflected scheduling issues.
With regard to the tax returns in this acrimonious divorce, Omer opined that plaintiff had
to exercise due diligence and examine the documents prepared by the opposing party, particularly
where the defendant fired the couple’s tax preparer. A new preparer could miss pertinent material.
Indeed, Flintoff recommended that plaintiff not sign the joint tax return prepared by Remick citing
the fact that it was missing information. Omer opined that although plaintiff may not have
complied with the tax term of the divorce judgment, she had little recourse in light of the delay in
receiving the documents from defendant in relationship to the tax deadline. Further, Omer opined
that the amounts expended on accountants and lawyer expert fees for a tax return that generated a
penalty or refund of $2,000-3,000 was simply “ridiculous.” He stated that $14,000 in expert fees
demonstrated a party’s “matter of principle,” when a cost-benefit analysis would not warrant such
an expenditure in light of a $600 refund.
Omer opined that the over $5,000 requested for the home refinancing issue could have been
mediated or resolved for lesser expense. He also testified that plaintiff did nothing improper by
refusing to sign the release because she still owned the property, was still subject to a mortgage,
and still had the potential for liability. Omer further concluded that the attorney fees submitted by
plaintiff’s attorney were “low.”
Although the attorneys did not call plaintiff and defendant to testify, plaintiff’s counsel
made an offer of proof regarding testimony. Specifically, plaintiff would have testified that she
did nothing to interfere with the delivery of the firearms, but rather did everything in her power to
efficiently turn the guns over to defendant within the bounds of federal law. Defense counsel
presented an offer of proof that plaintiff had responsibilities under the CSA to guarantee and
indemnify defendant for the firearms, but the documentation demonstrated the defense efforts to
secure the firearms. The parties submitted closing argument in written briefs.
On November 21, 2019, the trial court issued its extremely thorough and well-written 42-
page opinion and order denying relief and attorney fees. In the opinion, the trial court expressed
that, although the issues raised involved obtaining compliance with the CSA and divorce judgment
and the recovery of attorney and expert witness fees necessary to enforce the documents, the
judgment was effectively the beginning of the litigation because the case presented the
continuation of the parties’ discord. It further noted that, although “no stone” was left unturned in
the presentation of pleadings, briefs, arguments, experts, and documentary evidence, the parties
were not called to testify. The trial court expressed that it essentially served as the trustee of the
marital estate, however, the parties seemed more concerned with engaging in a battle designed “to
right old wrongs.” The trial court further characterized the parties’ disputes as a “scorched earth
War of the Roses legal battle” that was not directed by the attorneys, but by the clients without any
cost-benefit analysis of the outcome on the assets. It noted that the documents governing the
parties’ dispute were the CSA and judgment of divorce. However, before the judgment of divorce
was entered on June 2, 2017, defendant filed a motion seeking enforcement and a possible violation
of the CSA in what the court labeled the “opening salvo.”
In discussing the firearms issue in which it was learned the parties had not agreed to the
division of the firearms, the trial court reflected that it should not have entered the judgment of
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divorce until the pending motions addressing the parties’ disagreements were resolved.6 The court
then summarized the motions, hearings, and admitted evidence that the parties introduced to
support their claims for attorney and expert witness fees and liquidated damages.
Ultimately, the trial court concluded that the requests for attorney fees was borne from a
“matter of principle” and not a “cost-benefit” analysis when tens of thousands of dollars was
expended on the 2016 joint tax return, yet $2,180 dollars was at issue. Further, the motions
reflected a “struggle for control and vindication” when, in response to defendant’s motion for
nearly $76,000 in attorney and expert witness fees, plaintiff filed a motion for liquidated damages
of $180,000. While plaintiff asserted that defendant’s motions were designed to control and punish
her for leaving him, defendant asserted that plaintiff was noncompliant and misleading and on a
mission to exhaust defendant’s resources.
First, the trial court denied plaintiff’s claim for liquidated damages, concluding that any
defense disclosures were made within the course of the litigation, the parties never moved to seal
the file, and the liquidated damage provision was solely punitive and not compensatory. The trial
court denied defendant’s request for attorney and expert witness fees pertaining to the joint tax
return issue. Although the judgment provided for a joint tax return, the trial court noted that
defendant undertook the responsibility to prepare the return, fired the couple’s tax preparer, failed
to deliver the proposed return to plaintiff until days before the deadline, and caused plaintiff to
seek an independent CPA who found problems with the joint tax return. Under the circumstances,
the trial court concluded that plaintiff was “justified” in filing married, but separate, in light of
defendant’s actions. The trial court concluded that the attorney and expert witness fees were
incurred and should be paid. However, it held they were not reasonable and necessary to enforce
the CSA and the judgment, but were incurred to “advance the goals of the parties” and reflected
their continuing battle.
The trial court also denied the defense request for attorney fees pertaining to the transfer
of the firearms, determining there was a lack of evidence that plaintiff failed to ensure the timely
transfer. The request for attorney fees pertaining to the home refinancing and release was denied
because the parties resolved the issue. The trial court declined to award attorney fees pertaining
to the award of home expenses to defendant, concluding that it was a legitimately contested
motion. Finally, the trial court declined to award any attorney fees for the preparation of the
QDRO. In conclusion, the trial court stated, “The request that attorney fees should be borne in
whole or part by the other party is not reasonable given the circumstances and conduct of the
parties. For purposes of taxing the adverse party, the fees were neither objectively reasonable nor
necessary. This was litigation and these were expenses that neither party ever had to bear. . . .
Neither of them is being penalized for their mutual choice to do battle and deploy every
6
When the parties appeared for hearings, the trial court would indicate that the next day or two
was available for a continuation of the evidentiary hearing. However, many months passed
between the hearings. In addition to reflecting that it should have delayed the entry of the judgment
until additional issues were resolved, the trial court also expressed regret that it failed to require
that the parties’ appear for successive hearing dates.
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conceivable weapon in the struggle. But the Court should not reward that choice by shifting the
costs of war to one party when both are at fault.”
II. APPLICABLE LAW
In Michigan, attorney fees are generally not recoverable as an element of costs or damages
unless permitted by statute, court rule, a common-law exception, or contract. Skaates v Kayser,
___ Mich App ___, ___; ___ NW2d ___ (2020). Additionally, in an action for divorce, attorney
fees may be awarded by statute, MCL 552.13(1) or court rule, MCR 3.206(D)(1). A party who
requests attorney fees and expenses must allege sufficient facts to demonstrate that those fees and
expenses were the result of the other party’s refusal to comply with a prior court order despite
having the ability to comply. MCR 3.206(D)(2)(b).
This Court reviews a trial court’s decision whether to award attorney fees and the decision
regarding the reasonableness of the attorney fees for an abuse of discretion. Teran v Rittley, 313
Mich App 197, 208; 882 NW2d 181 (2015). A trial court abuses its discretion when it selects an
outcome outside the range of reasonable and principled outcomes. Id. The trial court’s factual
findings underlying an attorney fee decision are reviewed for clear error. Loutts v Loutts, 298
Mich App 21, 24; 826 NW2d 152 (2012). A finding is clearly erroneous, if, upon a review of the
entire record, the reviewing court is left with a definite and firm conviction that the trial court made
a mistake. Lueck v Lueck, 328 Mich App 399, 404; 937 NW2d 729 (2019). Questions of law are
reviewed de novo. Loutts, 298 Mich App at 24. A divorce judgment entered as a result of a
settlement agreement reached by the parties represents a contract, and, if unambiguous, presents a
question of law. Lueck, 328 Mich App at 404.
III. DOCKET NO. 351858
A. TRANSFER OF FIREARMS
Defendant first alleges that the trial court erred in denying his motion for attorney fees and
costs arising from plaintiff’s failure to ensure delivery of the firearms within 15 days of Dr.
Hoppe’s receipt of final federal approval. We disagree.
The divorce judgment contained a provision entitled “Enforcement Expenses,” stating:
In the event any party to this action defaults in the performance of any of
the obligations herein set forth, and it becomes necessary to initiate legal
proceedings to effectuate performance of any provisions of this Consent Judgment
of Divorce or the CSA, the party found to be in default shall pay expenses, including
reasonable attorney fees, incurred in connection with such enforcement
proceedings.
Additionally, the CSA contained a provision that plaintiff assumed full responsibility for “ensuring
that [defendant] receives his firearms from the Dealer within 15 days after the Dealer receives
[defendant’s] firearms and all federal permitting approvals.” Plaintiff further agreed to indemnify
defendant for all costs in ensuring compliance with this provision.
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On May 17, 2017, defendant filed a motion to enforce the CSA and contended that plaintiff
breached her obligation to ensure that defendant receive his firearms within 15 days of the dealer’s
receipt of final approval. It was further claimed that plaintiff admitted to defendant that she would
not comply. Defendant then later amended his initial motion on July 11, 2017, and moved for
attorney fees pertaining to firearms on November 15, 2017.
Despite these multiple motions and hearings requesting attorney fees, the trial court
declined any attorney fees for pursuing this issue. First, the trial court acknowledged that it agreed
to address attorney fees “at a later hearing if necessary.” It also noted that defendant filed a motion
pertaining to this issue in May 2017, but the guns did not change hands until July 18, 2017. The
trial court further acknowledged that plaintiff and Dr. Hoppe were never called as witnesses. Thus,
there was no testimonial evidence presented to confirm their involvement in a dating relationship.
Nonetheless, the trial court concluded that a relationship was not dispositive of the issue.
Rather, the proofs indicated that Dr. Hoppe and his counsel, Martinez, corresponded with
defendant and his attorney to transfer the weapons. Therefore, the trial court denied defendant’s
request for $15,670 in attorney fees. Specifically, the trial court held:
In sum the Court is persuaded that [defendant] has failed to prove it more
likely than not that [plaintiff] failed to “ensure” the timely transfer of the firearms
and the attorney fees requested are therefore not granted. With [defendant’s]
consent the issue could have been easily addressed in a show cause hearing for civil
contempt directed to [plaintiff] with both she and Mr. Hoppe called as witnesses.
Both [plaintiff] and Mr. Hoppe were represented already by their retained attorneys
and the simple issue would be, “Why doesn’t [defendant] have his firearms?”
Scheduling such hearing often means they never need to occur.
We conclude that the trial court did not abuse its discretion in failing to award attorney
fees for filing motions and subpoenas to obtain the transfer of the firearms. First, defendant filed
his motion on May 17, 2017, when the parties had executed a CSA, but were in the process of
incorporating the CSA into a consent judgment of divorce and submitting the judgment to the trial
court. Thus, although the parties had reached an agreement, the trial court had not been privy to
the document or reduced it to a judgment or order. Furthermore, Dr. Hoppe, an acupuncturist and
firearms dealer, retained an attorney, Martinez, to advise him of federal firearms laws to ensure
that he was in compliance. Martinez opined that Dr. Hoppe could transfer the guns to defendant
following the entry of the divorce judgment if defendant completed the necessary forms.
Curiously, defendant never called plaintiff or Dr. Hoppe to testify regarding the nature of
their relationship and whether or not they deliberately obstructed the firearm delivery. Rather,
plaintiff asserted that, consistent with the representations by Martinez, she could not receive the
firearms that belonged to defendant as an intermediary because it would subject her to criminal
liability. Indeed, defendant also did not produce an expert in firearms to attest that plaintiff could
or should have received the firearms and transferred them to defendant. Moreover, at the hearing
on May 26, 2017, Martinez brought a spreadsheet delineating the firearms and requested a
designation regarding the party who should receive each gun because the dealer did not have
information to determine the recipient. Defense counsel noted that 10 guns were at issue and
would be owned by a trust, but the owner would not be named on the record at that time. Thus,
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it is unclear how defendant expected Dr. Hoppe to turn over the firearms to him: (1) when a
judgment of divorce had not yet entered; (2) when defendant failed to present expert testimony
that demonstrated Dr. Hoppe had the authority to turn over the weapons to plaintiff for delivery to
defendant; and (3) where defense counsel declined to facilitate the transfer by identifying the
recipient of each firearm. More importantly, defendant did not call plaintiff or Dr. Hoppe to testify
such that the trial court could have assessed their credibility pertaining to this issue.
Under the circumstances, the trial court’s decision to deny attorney fees for a purported
failure to comply with the CSA and divorce judgment provisions regarding transfer of firearms
was not an abuse of discretion. Teran, 313 Mich App at 208. The trial court scheduled an
evidentiary hearing to address attorney fees, but never confirmed that an award of some amount
would be granted. Further, the trial court’s erroneous declaration that there was no evidence of a
romantic relationship between plaintiff and Dr. Hoppe (when plaintiff’s response to the motion to
enforce the CSA acknowledged a relationship) did not establish that plaintiff thwarted the transfer
of the firearms. Rather, the trial court held that defendant failed to meet his burden of proof in
demonstrating that plaintiff interfered with the delivery of the firearms. Finally, the trial court
concluded that the appropriate recourse was a show cause to pursue civil contempt involving
Martinez and Dr. Hoppe to facilitate the execution of the transfer. Even though the CSA and the
divorce judgment imposed obligations on the parties to facilitate the property division, the trial
court did not abuse its discretion by failing to award attorney fees when it became apparent that
Dr. Hoppe had the firearms in his possession as a licensed dealer, and his attorney advised that
there could be potential liability issues if the weapons were transferred to plaintiff to act as an
intermediary with defendant.
B. MARITAL HOME EXPENSES
Defendant submits that the trial court erred in failing to award him costs and attorney fees
because plaintiff was found in default of her obligation under the divorce judgment to pay all
expenses for the marital home during her exclusive occupancy. We disagree.
As an initial matter, we again note that defendant filed the motion to enforce the CSA on
May 17, 2017. However the CSA was to be incorporated into the divorce judgment, and the
judgment did not enter until June 2, 2017. Thus, defendant initiated the motion before the
judgment had even entered, and his characterization that he was enforcing the judgment was
erroneous. Furthermore, it is unclear why defendant immediately sought to declare plaintiff in
breach of her obligation instead of seeking a declaration that plaintiff be held responsible for the
costs. This request for clarification would have been the more prudent approach in light of
defendant’s continued operation of his business at the marital home plaintiff occupied.
Addressing the marital expenses, the trial court concluded:
At the July 18, 2017 hearing the Court ordered [plaintiff] to pay [defendant] $7,053
in expenses the Court determined she owed him for home expenses. This was a
legitimately contested motion and attorney fees in the requested amount of $1765
are not awarded.
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The judgment of divorce contained a “Debt and Indemnity” section, and it provides in
relevant part:
The parties shall indemnify and hold each other harmless from the
obligations in this Consent Judgment of Divorce and contractually agree that if any
party pays any of the debts to which another is responsible pursuant to the
provisions of this Consent Judgment of Divorce, whether as a result of a judgment
or a voluntary payment to protect that person’s credit rating, the party responsible
for the debt shall immediately reimburse the other the amount paid. However, no
party shall pay a debt for which another is responsible unless the debt is in default.
The parties agree that in the event that a party fails to reimburse another as provided
above within thirty (30) days, the party entitled to reimbursement may petition the
Court to obtain a judgment for the amount owed, including interest, costs, and
reasonable attorney fees.
No party, after the execution of the CSA, will make a commitment to incur
any obligation in another party’s name, or secure or attempt to secure any credit in
another party’s name. The parties will pay all debts and discharge all financial
obligations that they have made in their respective names during the pendency of
this divorcee proceeding and each party will indemnify each other against, and hold
each other harmless from all such debts and financial obligations.
With respect to debts for which more than one party may be liable, whether
or not the debt was incurred by only one party, the parties shall assume and pay
the debts as set forth herein. [Emphasis added.]
The trial court did not abuse its discretion by denying attorney fees when the trial court
ordered plaintiff be responsible for $7,053 in marital expenses. Although plaintiff was awarded
exclusive occupancy of the marital home between the fall of 2016 and February 2017, there was
no dispute that defendant operated his business out of the marital home. Accordingly, there were
expenses attributed to the operation of the business such as electricity and waste management.
Furthermore, plaintiff alleged that defendant withdrew corporate funds for payment of rent and
electricity. The unique scenario presented by plaintiff’s sole occupancy of the marital home that
housed defendant’s business and his computer servers was not a circumstance that was expressly
addressed by the CSA or divorce judgment. Although it was appropriate to conclude that plaintiff
be held responsible for the expenses while staying in the marital home, it was similarly appropriate
for defendant to be responsible for the expenses caused by his operation of his business in the
home, particularly when he withdrew funds to pay rent and utilities for his business. Thus, under
the circumstances, it was proper for the trial court to resolve the issue of outstanding expenses in
light of the language in the divorce judgment contemplating that more than one party may be liable
for a debt. The fact that defendant filed a motion and obtained payment of expenses does not
necessarily warrant attorney fees. Because a debt was incurred for which both parties could be
held responsible, defendant’s filing of the motion did not necessarily indicate default or
misconduct on plaintiff’s part. The trial court’s resolution of this issue did not constitute an abuse
of discretion. Teran, 313 Mich App at 208.
C. JOINT TAX RETURN ATTORNEY FEES AND EXPENSES
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Defendant next contends that the trial court improperly denied his request for costs and
attorney fees when plaintiff violated the tax provision of the divorce judgment and he incurred fees
in an attempt to enforce the judgment. We disagree.
The judgment of divorce addressed the 2016 income tax returns as follows:
The parties shall file joint 2016 federal, state, and local individual income
tax returns and equally share in the costs to prepare and file the returns, any refunds,
and any liabilities.
Although the divorce judgment contained this provision, plaintiff nonetheless filed as married but
separate. Because she was the first person to file, this action required defendant file in a similar
manner. However, despite plaintiff’s noncompliance with the judgment, the trial court concluded
that defendant’s actions caused her to file in this manner. The trial court’s opinion stated in
pertinent part:
The second example of the parties’ shared agendas in this litigation is
[defendant’s] request for attorney fees and expert witness fees in connection with
the tax issue. [Plaintiff] filed separately requiring [defendant] to do the same. That
violation of the clear requirements of the judgment of divorce cost [defendant]
about $2180. And now [defendant] seeks $9713 in attorney fees and a significant
portion of his expert witness fees of $29,070.
However, the trial court also concluded that the facts did not warrant attorney or expert witness
fees under the circumstances. Although defendant assumed the responsibility to have the returns
prepared, he filed an extension from April to October 2017. Just before the extension deadline,
defendant fired the tax preparer previously retained by the couple. Despite an earlier request by
plaintiff’s counsel to view the tax returns, defendant only provided the tax returns a couple of days
before the deadline. At that time, plaintiff hired CPA Flintoff to review the joint tax return.
Flintoff advised plaintiff to not sign the return because itemized deductions and source information
underlying defendant’s business were missing. In light of time constraints, Flintoff was unable to
obtain an agreement for defendant to hold plaintiff harmless in the event of an audit or tax
deficiency. Because of the upcoming deadline and deficiencies, plaintiff chose to file separately.
In declining to grant attorney or expert witness fees to either side, the trial court stated, in
pertinent part:
But [plaintiff’s] noncompliance with the joint filing requirement is clearly
justified by [defendant’s] conduct. [Defendant put her at a disadvantage and this
Court finds, from the direct and circumstantial evidence, that he did so
unnecessarily and deliberately. *** This Court must in fact rely on circumstantial
and secondary evidence because neither of the parties ever testified in this case for
reasons best known to them. The Court could have and perhaps should have called
them as witnesses. MRE 614(a) allows the Court on its own motion to call
witnesses. The Court did not do so understanding that able and experienced trial
counsel should be allowed to “try their case” and whether the clients testify is
ultimately the client’s decision.
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The Court finds and concludes that [defendant’s] claim for attorney fees and
related expert witness [f]ees should be and hereby is denied. I am satisfied that
those costs are neither objectively reasonable nor necessary. The reader will recall
that both attorney fee experts testified as to whether those fees were reasonable and
necessary. The Court is satisfied that is the standard and that, in the long run,
neither party has carried the burden of proof to satisfy it.
In denying these two claims the Court is not saying that either [plaintiff
counsel’s] attorney fees or [defense counsel’s] attorney fees should not be paid.
They were incurred and paid to advance the goals of the parties. Both parties
choose a battle based on principle to the exclusion of an objectively reasonable
weighing of the benefits to be gained against the rising costs incurred. The parties
hopefully have realized their goals. But the law allows for reasonable fees and
“reasonable” implies an objective standard and that standard includes the cost-
benefit rational analysis earlier discussed. Both the weak liquidated damage claim
in light of the evidence and the attorney fee claim in light of [defendant’s] conduct
and the amount involved support leaving the parties with the fees they have
voluntarily agreed to pay their attorneys.
The trial court’s factual findings underlying a determination regarding attorney fees are
review for clear error. Loutts, 298 Mich App at 24. Clear error occurs when the reviewing court
is left with a definite and firm conviction that a mistake has been made after an examination of the
entire record. Lueck, 328 Mich App at 404.
In light of these facts, the trial court did not clearly err in concluding that the factual
circumstances underlying plaintiff’s noncompliance with the divorce judgment did not warrant
imposition of attorney and expert witness fees. The trial court noted that plaintiff’s decision to file
separately was necessitated by defendant’s actions. Defendant delayed presenting the information
to the tax preparer and did not respond to plaintiff’s counsel’s inquiry. After plaintiff’s counsel
contacted the couple’s tax preparer, defendant fired that individual. Consequently, a new tax
preparer, Remick, was hired. When the tax return was finally provided to plaintiff, she hired
Flintoff to examine the return. He expressed concern that a deduction for real estate taxes was
missing, and the documentation from defendant’s “pass through” corporation that was used to
calculate the couple’s taxes was not provided. Because Flintoff did not have time to negotiate a
hold harmless provision from defendant in the event an audit occurred, plaintiff was given her
options and choose to file separately. As the trial court noted, defendant claimed to incur an
additional tax liability of $2,180 as a result of plaintiff’s actions. However, the trial court
concluded that a cost-benefit analysis did not warrant $9,713 in attorney fees and $29,070 to
litigate the issue. Indeed, defendant voluntarily chose to expend nearly $40,000 to recover $2180
to enforce the divorce provision. However, in choosing to litigate the issue, defendant ignored his
conduct that led to plaintiff’s decision to file separately. Because defendant failed to testify, there
was no explanation as to: (1) why he fired the couple’s prior tax preparer at the last minute when
that person may have provided plaintiff with a level of comfort to sign off on the return; (2) why
he waited until days before the deadline to submit the tax returns to plaintiff for her review; (3)
why he did not submit the documentation underlying the preparation of the tax return to facilitate
plaintiff’s approval and signature; and (4) why he did not submit a hold-harmless agreement to
plaintiff in light of his actions. Accordingly, the trial court’s ultimate determination to deny
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attorney and expert witness fees to defendant for litigating the noncompliance with the tax
provision of the divorce judgment did not constitute an abuse of discretion.
For purposes of completeness, we note that defendant contends the decision in Pirgu v
United Servs Auto Ass’n, 499 Mich 269; 884 NW2d 257 (2016) demonstrates that reversal is
warranted. In Pirgu, the plaintiff suffered closed head injuries in an automobile accident and
ultimately filed suit alleging the insurer assigned to pay the claim improperly discontinued paying
benefits. The case proceeded to a jury trial with plaintiff seeking a recovery between $200,000
and $400,000. The jury awarded $70,237.44. After the trial, plaintiff’s counsel requested
$220,945 in attorney fees, asserting that he expended more than 600 hours prosecuting the case
and his hourly rate was $350 an hour. The trial court found that the insurer unreasonably failed to
pay, MCL 500.3148(1), but then noted that the jury granted a recovery of approximately 33% of
the amount requested by plaintiff. Therefore, the court awarded $23,412.48 in attorney fees, or
approximately 33% of the jury verdict. Id. at 271-272.
Our Supreme Court concluded that the trial court erred in its calculation. First, the Court
concluded that the reasonableness of an attorney fee under MCL 500.3148(1) must begin with an
analysis of the reasonable customary rate charged in the locality for similar services multiplied by
the reasonable number of hours expended. Id. at 281. Thereafter, the trial court must consider:
(1) the experience, reputation, and ability of the lawyer or lawyers; (2) the difficulty of the case in
light of the legal questions involved and the necessary skillset to address the issues; (3) the amount
in question and the result achieved; (4) the expenses incurred; (5) the nature and length of the
attorney-client relationship; (6) the likelihood that acceptance of the case will preclude the lawyer
from accepting other employment; (7) the time limits imposed by the client or the nature of the
case; and (8) whether the fee agreement is fixed or contingent. Id. at 281-282. Nonetheless, these
factors are not exclusive, and the trial court may consider other pertinent information. Id. at 282.
To aid in appellate review, the trial court should briefly discuss the factors and delineate any
additional factors deemed relevant. Id. Applying the above standard, the Pirgu Court concluded
that the trial court improperly failed to analyze the baseline by determining a reasonable rate and
reasonable hours. Furthermore, the trial court erred by principally relying on one factor, the
amount sought and the result achieved. Id. at 282-283. Consequently, the Court vacated the fee
award and remanded for an analysis in light of all the factors. Id. at 283.
Defendant contends that the Pirgu decision is applicable to the present case because the
trial court solely compared the amount of the tax liability incurred (approximately $2,000) in light
of the attorney fees and expert witness fees expended (nearly $30,000 in total) to deny the request.
However, our review of the trial court’s opinion reveals that it conducted a two-page analysis
addressing the terms of the judgment, the circumstances surrounding the timeliness of defendant’s
preparation, the belated firing of the couple’s prior tax preparer, and the submission of the tax
returns without underlying documentation. The trial court’s opinion as a whole insinuated that the
parties were engaged in gamesmanship as demonstrated by a lack of key evidence presented by
both sides. At the beginning of the trial court’s opinion, it stated:
Counsel for both parties have left no stone unturned in pleading, briefing,
and arguing their clients’ claims and defenses. At least no stone other than not
calling either party for direct or cross-examination. They have offered volumes of
documentary evidence together with lay and expert testimony.
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We disagree with defendant’s contention that Pirgu is dispositive. The trial court did not solely
rely on the tax liability that defendant incurred as a result of plaintiff’s filing and compare it to the
fees expended to litigate the issue. Rather, the trial court noted the judgment requirement of a joint
filing, defendant’s unreasonable actions in waiting to file, firing the tax preparer, and limiting the
time plaintiff had to review the joint tax return. Indeed, one who first breaches a contract cannot
maintain an action against the other contracting party for the subsequent breach or failure to
perform. Michaels v Amway Corp, 206 Mich App 644, 650; 522 NW2d 703 (1994). Although
the trial court did not expressly rely on this proposition of law, it seemingly applied this principle.
That is, the divorce judgment designated that a joint return would be submitted with any refund or
costs split between the parties. With regard to the execution of that provision, defendant undertook
that responsibility. However, he did so in such a manner that plaintiff was precluded from having
an opportunity to evaluate her potential liability in light of the tax return’s deficiencies according
to Flintoff, her CPA. Thus, the trial court essentially excused plaintiff’s failure to file a joint tax
return with defendant because of defendant’s conduct in his delayed filing and unexplained firing
of the couple’s tax preparer. Defendant’s challenge premised on Pirgu is without merit.
D. RELEASE
Defendant further contends that the trial court erred in denying his request for costs and
attorney fees expended in attempting to obtain a release from plaintiff to settle the litigation with
the marital home builder which was allegedly necessary for defendant to obtain refinancing of the
marital home and to remove plaintiff’s name from the mortgage. Defendant acknowledges that
the parties resolved the issue “on their own,” but nonetheless defendant claims entitlement to
$5,244 expended in attorney fees litigating the issue. We disagree.
In addressing this issue, the trial court stated:
[Defense counsel] in his closing argument requests $5,244 in attorney fees
on the issue of [defendant] refinancing the marital home he was awarded so as to
discharge [plaintiff’s] obligation on the mortgage debt. The confidential settlement
agreement acknowledges that such refinancing is subject to repair of “porch and
possible foundation problems” and goes on to say that “[Defendant] will refinance
the marital home or remove [plaintiff] from any mortgage on the marital home as
soon as reasonably possible after Eastbrook (the contractor allegedly at fault for the
defects) resolves the defective porch construction and any related foundational
problems.[”] Once any necessary repairs are completed the agreement gives
[defendant] 90 days to refinance (not the 30 as claimed by [plaintiff’s counsel] at
the September 26, 2018 hearing[)].
The issue was whether [plaintiff] a joint owner of the home should sign a
release of Eastbrook in connection with litigation pending in district court before
or upon receipt of a discharge of her liability on the mortgage. The Court put the
matter off to a hearing set for November 20, 2018 which was adjourned by counsel
to February 27, 2019. By the latter date the issue was resolved.
No attorney fees are awarded to [defense counsel] on this issue.
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Defendant contends that plaintiff acted unreasonably, and therefore, an award of attorney
fees is warranted despite the parties’ ultimate settlement of the issue. We recognize that, “an award
of legal fees is authorized where the party requesting payment of the fees has been forced to incur
them as a result of the other party’s unreasonable conduct in the course of the litigation.”
Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723 (1992). “A trial court has the
discretion to award such fees as are necessary and reasonable, and a court’s determination in this
regard will not be reversed on appeal absent an abuse of that discretion.” Id. However, it should
also be noted that when a party fails to dispute the basis of the trial court’s ruling, this Court need
not even consider granting the relief requested by the party-appellant. Denhof v Challa, 311 Mich
App 499, 521; 876 NW2d 266 (2015).
Defendant fails to recognize that when this issue was raised below, the trial court held that
any controversy was “nonexistent” in the divorce action because the issue of the settlement with
the builder and any need for a release presented an issue for the district court where the builder
litigation was pending. Specifically, on September 26, 2018, the trial court heard oral argument
on defendant’s motion to compel plaintiff to sign a release to allow work to be done on the former
marital home in order to facilitate defendant’s refinancing of the property that would permit a
discharge of plaintiff from any liability on the home. Defense counsel advised that the release had
been executed addressing construction work. However, defendant was also involved in litigation
with the builder of the home. The builder agreed to a settlement, but insisted on having a release
signed by both defendant and plaintiff. The trial court noted that the litigation with the builder
was pending in another court, and the issue of the settlement approval was “nonexistent” in the
divorce case. The trial court further opined that the builder’s settlement and refinancing were
separate and distinct issues. The trial court apprised the parties to return in November, and the
motion was denied with no costs or attorney fees. When the parties returned to court, the issue of
the release was settled. Accordingly, the trial court did not abuse its discretion by denying
defendant’s request for attorney fees arising from the motion to compel plaintiff to sign a release
to facilitate the refinancing of the home.
E. JUDGMENT ENFORCEMENT – EXPERT AND ATTORNEY FEES
Lastly, in this appeal, defendant contends that the trial court abused its discretion by
denying $22,050 in expert witness fees and $11,130 in attorney fees that was necessarily expended
to enforce the divorce judgment. We disagree.
Although the trial court concluded that plaintiff violated the 2016 joint tax return provision,
it chose to decline to award the attorney and expert witness fees requested by defendant, stating:
The second example of the parties’ shared agendas in this litigation is
[defendant’s] request for attorney fees and expert witness fees in connection with
the tax issue. [Plaintiff] filed separately requiring [defendant] to do the same. That
violation of the clear requirements of the judgment of divorce cost [defendant]
about $2180. And now [defendant] seeks $9713 in attorney fees and a significant
portion of his expert witness fees of $29,070.
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Defendant contends that the trial court improperly denied all expert and attorney fees, aside
from the tax issue, without stating why the fees were unreasonable and without conducting an
analysis of whether the attorney rates and hours were reasonable.
However, we cannot conclude that the trial court abused its discretion by denying expert
witness and attorney fees. As noted by the trial court, the parties seemed intent on continuing a
“war” and what should have been the end of the litigation turned into the beginning of the
enforcement disputes. The trial court also concluded that the parties were intent on engaging in
gamesmanship. Specifically, after defendant filed motions for costs and attorney fees seeking
enforcement of the CSA and divorce judgment, plaintiff filed a request for liquidated damages in
the amount of $180,000. The trial court found that the attorney fees were incurred, but determined
that each party should be responsible for the costs and attorney fees in light of the games played.
In light of the trial court’s factual findings underlying its determination, we cannot conclude that
the trial court’s decision constituted an abuse of discretion. Teran, 313 Mich App at 208.
IV. DOCKET NO. 352729
A. REIMBURSEMENT TAX COSTS AND PENALTIES
Finally,7 defendant alleges that the trial court improperly rewrote the divorce judgment by
relieving plaintiff from the costs and penalties incurred by defendant when she failed to file the
joint 2016 tax return as set forth in the judgment. We disagree.
Contrary to defendant’s assertion, the trial court did not rewrite the parties’ consent
judgment of divorce and disregard contract principles. The trial court acknowledged the divorce
judgment provision requiring a 2016 joint tax return be filed with shared refunds or liabilities.
However, the trial court examined defendant’s conduct and concluded that he deliberately
hampered plaintiff’s ability to timely review and evaluate the liability implications of signing a
joint tax return without the underlying documentation provided. The trial court effectively
considered that defendant undertook the obligation to prepare the joint tax return, but essentially
breached that provision by his conduct, and thereby, excused noncompliance by plaintiff.
Defendant’s reliance on the language of the divorce judgment does not negate his inappropriate
conduct and preclude the trial court from deviating from a strict interpretation of the judgment
under the circumstances.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Kirsten Frank Kelly
/s/ Michael J. Riordan
7
Defendant also raised the issue of payment of attorney and expert fees for plaintiff’s failure to
file a joint tax return, an issue resolved in Docket No. 351858.
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