In this hоtly contested child-custody case, we must determine whether the circuit court erred when it awarded plaintiff, Jo Edge, appellate costs and attorney fees incurred as a result of the decision of defendant, Joel D. Edge, to appeal the circuit court’s custody determination. After the circuit court awarded plaintiff sole legal and physical custody of the parties’ minor child and reduced defendant’s parenting time, defendant appealed. We аffirmed and awarded plaintiff taxable costs under MCR 7.219 for having fully prevailed on appeal. Plaintiff did not move this Court for damages for a vexatious appeal under MCR 7.211(C)(8) and MCR 7.216(C) or MCL 600.2445. Rather, plaintiff moved the circuit court for attorney fees and costs incurred in the appeal, citing MCR 2.114(D)(1) and (E), MCR 7.208(1), and MCR 3.206(C). Plaintiff argued that defendant’s unsuccessful appeal was frivolous and suggested that only defendant was able to bear the expense.
I. FACTUAL BACKGROUND
Plaintiff and defendant entered into a consent judgment of divorce in June 2008. Under the consent judgment, plaintiff and defendant were to have joint legal custody of their minor child. After holding an evidentiary hearing, the circuit court in September 2010 entered an order that awarded plaintiff sole legal and physical custody of the minor child and reduced defendant’s parenting time. Defendant appealed in this Court. We affirmed the circuit court’s order and awarded plaintiff taxable costs under MCR 7.219 for having fully prevailed on appeal.
Four months later, plaintiff filed a verified motion in the circuit court for attorney fees and costs pursuant to MCR 2.114(D)(1) and (E), MCR 7.208(1), and MCR 3.206(C). Plaintiff requested that the court award her $14,858.27 in appellate attorney fees and costs for defendant’s unsuccessful appeal. Plaintiff generally asserted that defendant had “demonstrated an ongoing pattern of unnеcessary and unreasonable litigation without regard to the facts or law which. . . caused [her] to needlessly incur superfluous attorney fees and costs.” Plaintiff argued that her resources were “limited” and that the “frivolous actions . . . caused a severe drain on those resources.” Plaintiff insisted that an “award of appellate attorney fees is generally left to the trial court to decide because the trial court is in a better position to evaluate the neеd and/or ability for the payment of said fees by the parties.” Plaintiff also insisted that a “trial court may order appellate attorney fees under MCR 3.206.” Plaintiff noted that her annual salary was $21,600 and that defendant’s annual salary was $62,675.08.
Without holding a hearing, the circuit court issued an opinion and order granting plaintiffs motion for attorney fees and costs. At the outset of its opinion, the court noted that it was granting plaintiff attorney fees and costs “as sanctions.” In its legal analysis, the court first еxplained that this Court determined that the circuit court did not err with respect to any of the issues defendant raised in his appeal. The circuit court next explained the following: The circuit court then discussed the factors to consider when determining the reasonableness of an hourly fee and concluded that plaintiffs counsel’s hourly rate was “not excessive” and that the services
In matters invоlving domestic relations, attorney fees are at times awarded, within the discretion of the trial court, when necessary to enable a party to carry on or defend a suit. In enforcement proceedings the court may also award attorney fees if one party is unable to bear all or a portion of those fees.... Further, the court may award a party attorney fees necessitated by the other party’s failure to comply with the divorce judgment.
Overwhelming evidence was presented during the evidentiary hearing to support this Court’s findings, and was noted by the Court of Appeals in its ruling that Plaintiff had fully prevailed. The Court finds that Defendant’s claims, as presented to the Court of Appeals, were completely without merit.
The Court will acknowledge that merely because a party is unsuccessful on appeal does not automatically mean that he is responsible to reimburse the other party for the costs of the litigation. However, а party that signs a pleading certifies by that signature that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. In this case, Defendant’s signature, or his attorney’s signature on his behalf, created meritless ... litigation for which no credible evidence existed to support his claims and arguments.
As a result, the Court finds that Defendant’s claims on appeal were clеarly frivolous pursuant to MCR 2.114(D)(1) and (E), MCR 7.208(1) [sic], and MCR 3.206(C), MCR 2.625(A)(2), and MCL 600.2591.
On this basis, the circuit court awarded plaintiff $153.27 in costs and $14,245 in attorney fees, totaling $14,398.27. Defendant moved the circuit court for reconsideration, which the court denied.
II. ANALYSIS
Defendant argues that the circuit court did not have the authority to award appellate attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), MCR 3.206(C), MCR 7.208(1), or MCL 600.2591. Defendant also argues that, even if the circuit court had this authority, his appeal in this court was not frivolous and therefore could not justify an award of attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), and MCL 600.2591; the court did not actually award plaintiff fees and costs under MCR 3.206(C); and, even if the court did award plaintiff fees and costs under MCR 3.206(C), it abused its discretion because the factual allegations in plaintiffs motion were insufficient to show that plaintiff was entitled to attorney fees and costs under MCR 3.206(C).
We review for an abuse of discretion a trial court’s ruling on a request for attorney fees. Smith v Smith,
A. MCR 2.114, MCR 2.625(A)(2), AND MCL 600.2591
Generally, “ ‘[a]wards of costs and attorney fees are recoverable only where specifically authorized by a statute, a court rule, or a recognized exception.’ ”
This Court may sanction a party under MCR 2.114(E) for a document signed in violation of MCR 2.114. See BJ’s & Sons Constr Co v Van Sickle,
MCR 7.219 addresses taxation of costs and fees on appeal. MCR 7.219(A) states that, “[e]xcept as the Court of Appeals otherwise directs, the prevailing party-in a civil case is entitled to costs.”
MCR 7.216(C) addresses awards of damages and other disciplinary action for vexatious appellate proceedings:
(1) The Court of Appeals may, on its own initiative or on the motion of any party filed under MCR 7.211(C)(8),[4] assessactual and punitive damages or take other disciplinary action when it determines that an apрeal or any of the proceedings in an appeal was vexatious because
(a) the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to be determined on appeal; or
(b) a pleading, motion, argument, brief, document, or record filed in the case or any testimony presented in the case was grossly lacking in the requirements of propriety, violatеd court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.
(2) Damages may not exceed actual damages and expenses incurred by the opposing party because of the vexatious appeal or proceeding, including reasonable attorney fees, and punitive damages in an added amount not exceeding the actual damages. The court may remand the case to the tried court or tribunal for a determination of actual damages.
Finally, MCL 600.2445(1) states that costs on appeal in this Court “shall be awarded in the discretion of the court.” “The appellant may be awarded the costs on appeal if he improves his position on appeal.” MCL 600.2445(2). And “[t]he appellee may be awarded damages for the delay and vexation caused by the appeal, to be assessed in the discretion of the court, in addition to costs on appeal, if the appellant does not improve his position on appeal.” MCL 600.2445(3).
In this case, the circuit court did not rely on MCR 7.219, MCR 7.216, or MCL 600.2445 as a basis for its award of appellate attorney fees and costs. Rather, the court opined that it was awarding attorney fees and costs to plaintiff as a sanction against defendant because defendant’s claims on appeal were frivolous, citing the following legal authority: MCR 2.114, MCR 3.206(C), MCR 2.625(A)(2), MCR 7.208(1), and MCL 600.2591.
As previously discussed, MCR 2.114(E) grants “the court” the discretion to fashion an appropriate sanction for a violation of MCR 2.114; this includes trial courts. FMB-First Mich Bank v Bailey,
In DeWald v Isola (After Remand),
The costs, including reasonable attorney fеes, incurred by defendants at the trial level were the direct result of plaintiffs pursuit of a frivolous cause of action and were clearly within the scope of the sanctions allowable under MCR 2.114, 2.625(A)(2), and MCL 600.2591[.] However, the expenses incurred by defendants on appeal and remand, after the trial court’s refusal to impose sanctions under the statute and court rules, were directly caused by the trial court’s erroneous decision and defendants’ consequent decision to appeal, not by plaintiff’s initial filing of a frivolous complaint in the circuit court. This Court determined, in defendants’ first appeal, that plaintiffs cause of action was frivolous, but did not expressly authorize an award of appellate attorney fees. We conclude that it is inappropriate to expand the scope of MCR 2.114, 2.625(A)(2), and MCL 600.2591.. .to cover costs, including attorney fees, incurred on appeal and remand of a frivolous action. [DeWald,188 Mich App at 703 (emphasis added).]
Under DeWald, the circuit court in the prеsent case did not have the authority to grant plaintiff appellate attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), and MCL 600.2591. See DeWald,
Plaintiff attempts to distinguish DeWald from the present case on the ground that defendant’s first appeal in this сase was frivolous but that the first appeal in DeWald was not. Plaintiff essentially tries to limit DeWald’s application by arguing that the only reason appellate attorney fees were not awarded in DeWald was because the appeal was not found to be frivolous. But DeWald is much broader than plaintiff asserts. The issue in DeWald was not
Moreover, we emphasize that the plain language of MCL 600.2591 demonstrates that the circuit court could not award appellate attorney fees and costs in this case. MCL 600.2591 states that “if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred . . . .” MCL 600.2591(1) (emphasis added). In this casе, the circuit court was not the court that conducted the appeal; therefore, it could not award sanctions under MCL 600.2591 for a frivolous appeal.
In addition, the definition of a frivolous claim under MCL 600.2591(3)(a) is different from the definition of a vexatious appellate proceeding under MCR 7.216(C)(1). MCL 600.2591(3)(a) states that a claim is frivolous if one of three conditions is met: (1) a “party’s legal position was devoid of arguable legal merit,” (2) the “party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true,” or (3) the “party’s primary purpose in initiating the action or asserting the defense was to harass, embarrass, or injure the prevailing party.” MCL 600.2591(3)(a)(i) through (Hi). In contrast, MCR 7.216(C)(1) provides that an appeal is vexatious in either of the following circumstances: (1) “the appeal was taken for purposes of hindrance or delay or without any reasonable basis for belief that there was a meritorious issue to bе determined on appeal” or (2) “a pleading, motion, argument, brief, document, or record filed in the case or any testimony presented in the case was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.” MCR 7.216(C)(1)(a) and (b). As can be gleaned from the definitions above, the definition of a vexatious appeal is much broader than the definition of a frivolous claim оr defense. The difference in the definitions further supports the conclusion that sanctions for vexatious appeals must be considered
Accordingly, we conclude that the circuit court abused its discretion by awarding plaintiff appellate attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), and MCL 600.2591.
B. MCR 3.206(C) AND MCR 7.208(1)
As previously discussed, the circuit court also cited MCR 3.206(C) and MCR 7.208(1) as a basis for sanctioning defendant for pursuing a frivolous appeal in this Court. Plaintiff insists that the circuit сourt properly awarded her appellate attorney fees and costs under these court rules. We disagree.
MCR 3.206(C)(1) provides that, in a domestic-relations action, “[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.” A party who requests attorney fees and expenses under MCR 3.206(C) must allege facts sufficient to show that either (1) he or she is unable to bear the expense of the action and that the other party is able to pay or (2) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order despite being able to comply. MCR 3.206(2)(a) and (b).
In this case, however, the circuit court did not grant plaintiff attorney fees and costs under MCR 3.206(C).
Finally, MCR 7.208(1) did not provide the circuit court with a basis to award plaintiff appellate attorney fees and costs. MCR 7.208(1) states the following: “The trial court may rule on requests for costs or attorney fees under MCR 2.403, 2.405, 2.625 or other law or court rule, unless the Court of Appeals orders otherwise.” Under MCR 7.208(1), a trial court has jurisdiction to award sanctions despite the filing of a claim to appeаl unless the Court of Appeals orders otherwise. The staff comment to the 1999 amendment that added subrule (I) to MCR 7.208 explains:
The amendment to MCR 7.208 deals with the issue regarding the relationship of appeals and orders awarding or denying attorney fees and costs. The amendment concerns the authority of the trial court to rule on requests for sanctions when an appeal has been taken. See Co-Jo, Inc v Strand,226 Mich App 108 [572 NW2d 251 ] (1997). New MCR 7.208(1) provides that the trial court has the authority to rule on such requests despitе the pendency of an appeal. [461 Mich cxcvi (2000).]
Accordingly, we hold that the circuit court abused its discretion by awarding plaintiff $14,398.27 in appellate attorney fees and costs.
Reversed.
Notes
Edge v Edge, unpublished opinion per curiam of the Court of Appeals, issued August 23, 2011 (Docket Nos. 300668 and 300713).
Trial courts also “possess the inherent authority to sanction litigants and their attorneys. ‘This power is not governed so much by rule or statute, but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Keinz,
A prevailing party seeking costs must file a certified or verified bill of costs with the clerk and serve a copy on all parties within 28 days after the dispositive order, opinion, or order denying reconsideration is mailed. MCR 7.219(B). The clerk must then promptly verify the bills and tax those costs allowable. MCR 7.219(D). “The action by the clerk will be reviewed by the Court of Appeals on motion of either party filed within 7 days from the date of taxation . ...” MCR 7.219(E).
4 MCR 7.211(C)(8) states that a party’s request for damages or other disciplinary action under MCR 7.216(C) must be made in a motion. “A party may file [the] motion ... at any time within 21 days after the date of the order or opinion that disposes of the matter that is asserted to have been vexatious.” MCR 7.211(C)(8).
In light of this conclusion, we need not address defendant’s alternative claim on appeal that the circuit court clearly erred by finding that his appeal in this Court was frivolous.
In light of this conclusion, we need not address whether a circuit court has the authority to grant appellate attorney fees and costs under MCR 3.206(C). Therefore, we express no opinion on this issue.