Gates v. Gates

GATES GATES 12, 2003, Rapids. at Grand Decided No. 236158. Submitted March Docket appeal sought. May 1, 2003, at 9:00 A.M. Leave to Ricky judgment of divorce from Jeanné M. Gates L. Gates obtained a Court, Cherry, J., H. which in the Branch Circuit Michael plaintiff $566,608in awarded the assets and the defendant support attorney assets, spousal in and awarded the defendant appealed, raising regarding several issues fees. The defendant property, her award of division and valuation of the marital attorney fees, disqual- motion to and the denial of her ify judge. held,-. Appeals The Court of argument failed to consider 1. The defendant’s that the trial court position awarding

her financial in her the marital home fails specific find- because the record reveals that the trial court made parties’ status, earning abilities, ings regarding life of fact property. general principles equity dividing in marital reducing plain- 2. trial court did not err in the value of the The bankruptcy light a debtor business’s tiff’s business interest plaintiffs parties’ stipulation regarding because the the value of the validity specifically predicated interest was on the business Conversely, debt. the trial court did not err in debtor business’s adjust memberships refusing value of certain stock and club subject it was unclear which stock was the of the valua- because request change challenge, did not a in valua- tion and the defendant memberships tion of the stock or at trial. plaintiff Maple awarding 3. The trial court did not err in zero, although at a value of because Lane residence parties, equity in the home was titled the names of the the actual solely payments by plaintiffs had accrued as a result of made wife, home, only in the and had used the brother and his who lived financing purchase to obtain for the of the home. joint valuing bank account 4. The trial court did not err $3,000. In of the fact that the awarded to the defendant actual value of the bank account was a source of confusion for the parties throughout proceedings, said that the the entire it cannot be was erroneous. court’s valuation v Gates parties’ by assigned furniture at the the trial court to The value 5. condominium, were awarded condominium and furniture which Furthermore, clearly supported defendant, the record. argu- supporting the defendant’s in the record is no evidence there fact that the furni- failed to consider the that the trial court ment income-producing dividing marital assets. in the not ture was require plaintiff failing the to err in to trial court did not 6. The properties past defendant pay awarded to the due on ail debt previous payments, debt and the had made because the parties already when the been taken into consideration due had properties. agreed these to values of argument award of the trial court’s 7. The defendant’s spousal support an abuse of discretion nonmodifiable and thus was and, any judgment, by language in supported the of the is not may spousal support event, a trial court’s award fails because 552.28. modified under MCL Although all the relevant factors trial court considered 8. the regarding amount and duration the when it made its determination by supported findings spousal support, are and these of fact dispositional clearly erroneous, rul- the court’s and are not record support $200 awarding a week ing in the amount of the defendant just years of the in of the facts is not and reasonable for five assets, court, parties awarded substantial Where both are case. spousal support, evaluating should focus on in a claim for assets, income-earning potential a and should not evaluate of the self-support by including party’s ability provide amount in the support trial of the assets themselves. The available for the value weight placed on the value of the court inordinate disparate defendant, weight and insufficient on the awarded to the poten- income-earning parties of the and the fact that incomes to off- to the defendant was insufficient tial of the assets awarded dispositional ruling awarding spousal disparity. this The court’s set reversed, support matter remanded for redetermi- must be and the support. appropriate award of nation of an awarding in the defendant The trial court abused its discretion 9. attorney fees, apparent only $5,500 record because it is from the in satisfy $70,900in income is insufficient to that the defendant’s owed, the assets would have to invade fees and that the defendant pay the fees. of divorce in order to awarded to her in the attorney-fee remand, award should reflect the trial court’s On parties spousal support leaves the its award of extent to which comparable another. The court income to one with assets and attorney appropriate award of fees an should also determine appeal. regarding this 256 disqualify judge prop- 10. The defendant’s motion to was any erly because the failed to show actual bias denied defendant or prejudice against the defendant. part, part, pro- for Affirmed reversed in and remanded further opinion. ceedings consistent with this J., dissenting part, stated that would affirm he Sawyer, respect spousal support decision of the trial court with because support he is left with a firm conviction the award inequitable, and would also affirm the trial award of attor- ney fees, finding no abuse of discretion in that award. — Support. Spousal Divorce court, evaluating spousal support A for claim where both assets, awarded are substantial should focus on the income- potential assets, earning party’s and should not evaluate a ability provide self-support including in the amount available for the value of the assets themselves. Gallagher Duby, Byron PLC P. (by Gallagher, Jr), plaintiff. Judith A. Curtis for the defendant. Sawyer P.J.,

Before: JJ. Schuette, Wilder, appeals J. Defendant Jeanné M. Gates as of Wilder, right judgment from á of divorce. We affirm in part, part, reverse in and remand.

In the divorce, the trial court divided estate, substantial marital awarding $741,608 to plaintiff Ricky L. $395,775 Gates and to defendant. To equalize award, the trial court ordered pay defendant $175,000, reducing plaintiffs award to $566,608, and increasing plaintiffs to $570,775. award $200 The trial court also awarded defendant a week in five-year rehabilitative period, attorney as well as in fees.

Defendant first the trial challenges court’s valuation property. marital In reviewing a court’s property in division a divorce we case, must first 423 v Gates the Court Draggoo v of fact. findings the trial court’s review NW2d 642 415, 429; 566 Mich Draggoo, 223 141, 151; 485 Sparks Sparks, v 440 Mich citing (1997), of fact findings court’s “If the trial 893 (1992). NW2d dispositive whether the decide must upheld, are [we] facts. in of those equitable light was fair and ruling discretionary and should is ruling dispositional The firm convic left with the unless be affirmed [we are] Id. 429-430, inequitable.” division was tion that the Sands, 442 Mich 30, 34; 497 NW2d Sands v citing (After v Horner McNamara see also (1993); (2003). NW2d 436 App 667; Remand), in a divorce marital assets distributing goal The equitable distribution is to reach an proceeding McNamara circumstances. of all the NW2d 385 App 177, 188; 642 Horner, mathematically not be The division need departure congruence from any significant equal, but trial court. Id. The clearly explained by the must be property is inti disposition of marital trial court’s Id. of fact. mately findings related to its court’s valuation of that the trial argues Defendant the trial and that was erroneous certain assets inequitable. dispositional ruling failure to consider the trial court’s first the martial home awarding position her financial contention However, defendant’s was error. her on the of fact findings the trial court’s refuted record. defendant, marital home awarding

In court stated: home, as I have established Regarding Fairfield Drive the $44,000, going the and I’m to award value of I can a

best up based I with that number defendant. came same to the upon appraisals prop- both the that have been done of the potential erty together with a the sale was available year ago. my I will address later in decision some of the repairs that done on need to be the marital home to either boys present allow the and the at the time to [sic] remain there or her to sell it if so. for she chooses to do Our has Supreme following Court held that the fac- tors are be considered in the division property, of partic- whenever relevant the circumstances of the ular case: (1) marriage, (2) par- duration of the contributions of the estate, (3) age parties, (4)

ties to marital of the health of parties, (5) parties, (6) of life status necessities and parties, (7) earning par- circumstances of the abilities of the past ties, (8) parties, (9) of the relations conduct general principles equity. supra [Sparks, of at 159-160.] Supreme noted, however, Our that: desirable, feasible, rigid

It is or for us to a establish applying framework for factors. relevant The trial court given fashioning rulings is broad its discretion and there But, can no strict be mathematical formulations. as we have recognized before, equal, while the need division not be it equitable. may must be Just as the final division not be equal, always equal. the factors to be considered will not many Indeed, some, there will be cases where even or most, any factors will be irrelevant. But where opinion factors delineated in this relevant are to the value parties, or to needs of the trial court specific findings regarding shall make of fact those factors. hoped requirement It greater that this will result in con- sistency provide meaningful more effective and appellate (citations review. omitted).] at 158-159 [Id. Contrary to assertion, defendant’s review record indicates that the trial court considered the status, life earning abilities, principles and general v Gates Gates equita- marital and property, when the equity dividing based on those considera- property the bly distributed difficulty trial court noted the opinion, In its the tions. property: “Finding the equitably dividing in it had continu- stay in business and to Mr. Gates to way for sup- has sort of income that generate to the ing [sic] children, and while well the their ported parties so of portion and the Mrs. a fair certain to giving remarkably already is difficult.” estate, plaintiff found at fault the The trial court also to marriage, the but declined breakdown of ultimate sixty mar- percent of the requested defendant’s award the used alternative, As an trial court estate. ital requested appropriate; values where defendant’s pay- lease plaintiff making continue the required to and, for the vehicle; to account ments on defendant’s by plaintiff girlfriend, his made an spent on monies required was in the amount adjustment property division. equalize pay defendant supra in Sparks, noted Supreme our Court As obviously appellate most review effective 162, “[t]he . . . .” thorough finding result from more fact would case, in the the trial court articu- However, instant of fac- findings four the relevant regarding lated its equitably marital tors, and distributed The case. trial of all of the circumstances erroneous, are not findings fact equitable affirm distribution of the marital its we property. court erred in next that argues

Defendant Inc., because of Ireland, the value of Gates adjusting parties’ postvaluation events, contradiction value. further stipulated adjust value refusing erred in trial court 256 Bay yacht valuation date of stock and the Harbor memberships. parties stipulated The golf Inc., was Ireland, $313,500, “assuming value of Gates is valid.” The (Emphasis added.) Acorn debt stipulated Bay yacht also that the value of the Harbor membership was and that the value Bay membership golf $20,800. Harbor

By trial, Systems the time of Acorn Window had bankruptcy, filed and was uncertain Ireland, Inc., whether Gates would be able to collect debt. $366,000 Plaintiff’s one-half in interest $366,000 $183,000. debt was Plaintiff asked court adjust the stipulated $313,500 value Gates Ire- by land, by Acorn, owed Inc., $183,000 with the proviso he and equally defendant would share any amount collected from Acorn. The trial court granted plaintiff’s request and valued Gates Ireland, Inc., and awarded party each one half of the one-half share of the debt currently owed Gates Inc., by Ireland, Acorn. argues

Defendant court erred in the value of adjusting Ireland, Inc., Gates because of postvaluation events in (Acorn’s contra- bankruptcy), the parties’ diction of stipulated value. This Court has “[s]tipulations held that of fact are stipu- but binding, law binding.” lations of are not Johnson, v 242 Staff 521, Mich App 535; 619 NW2d 57 (2000). However, the parties’ stipulation regarding the $313,500 value of Ireland, Gates Inc., specifically stated “assuming Acorn debt valid.” At the time of trial, Acorn debt no longer was valid because of Acorn’s bank- ruptcy. The trial court’s reduction in value Gates Ireland, Inc., was not erroneous, and its dispo- v Gates equitable ruling was fair and sitional the case. facts of argues trial erred in also that the court adjust permit

refusing value and valua her to Bay yacht golf Harbor and tion dates of stock and the memberships. We cannot discern to which “stock” only referring; will discuss therefore, we defendant is yacht memberships. Essentially, golf defen adjusted dant that because the trial court requested plaintiff, Ireland, Inc., of Gates as value adjust items, the valuations of other as it should also requested by request change her. Defendant did not amounts at trial. The trial court valuation dates or adjust yacht golf declined to the valuations of the July opinion memberships 2001, and order. It 3, its regarding is well settled that decisions the time of val property in uation of a divorce action are matters Burkey v Bur within the discretion of the court. (On App key Rehearing), 72, 76; 471 NW2d Curylo Curylo, (1991), citing adjust (1981). Refusing 351; 304 NW2d575 the time yacht memberships golf of valuation of the and was not discretion, well within the trial court’s error. argues

Defendant next that the trial court erred plaintiff Maple awarding at a the 77 Lane residence parties stipulated value value of zero. The property Maple “$0 At $58,559.” Lane was or Maple prop- plaintiff the 77 Lane trial, testified that erty parties’ his names, in the but that was titled Vicky Toby sister-in-law, Gates, brother, Gates, and explained Plaintiff that his brother five there. financing for the house because he unable to obtain parties bankruptcy, financed the had filed for so 256 App providing house in their names, with his brother payment making payments mortgage down and all on the house. opinion,

In its oral the trial court stated: going property The Court is to determine that the located Maple at 77 being Lane was to some extent held in trust Toby here for Mr. Gates’ brother and his wife Vicky- property I will plaintiff award the to the but have appear attached no value to it as it would from the testi- mony heard, the Court prop- has that all of the value in that erty has through payments Toby been achieved Vicky Gates. that the trial court erred because

it violated the statute of frauds, MCL 566.106,which precludes any property the creation of interest in real except by appropriate an written document, and that essentially property the trial court awarded the to a party, authority third which it had no to do. In the case defendant cites, Smela, Smela v (1985), 602, 605; 367 NW2d 426 this Court held “Michigan permit divorce statutes do conveyance property courts to order or interests in property parties.” to third In the instant case, how- Maple ever, the trial court did not order that the 77 property conveyed Toby Vicky Lane Gates. reality Rather, it considered the of the situation sur- rounding ownership pay- of the house and who made property ments on the house and awarded the equity at a value, zero because solely through payments the home was achieved by Toby Vicky made Gates. The trial court’s valu- Maple property ation of the 77 Lane at zero was not erroneous, and its award of the Gates Opinion of the Court equitable light was fair and in of the facts of the case. argues that trial

Defendant next court erred in joint Century awarding the New bank account to her Throughout pendency at a of $3,000. value of the attorneys proceedings, both and their were confused about the value of the bank account. At the evidentiary posttrial hearings, parties attempted account, to address the bank but further confused the adjust issue. The trial court declined to the award of joint July $3,000 bank account to defendant its opinion stating 3, 2001, order, “[defendant was $3,000 awarded for this account. The now persuaded that the actual balance at time trial, [p]laintiff negative testified, as was a which $11,000, [plaintiff subsequently adjustment $0. reduced to No surrounding will be made.” In of the confusion joint the value of the account, bank the trial court’s Moreover, valuation was not erroneous. joint up only bank account made 0.3%of the $1,137,383total estate, marital and did not render the dispositional ruling inequitable. trial court’s Defendant next that the trial court erred awarding parties’ furniture to her at a value unsupported by record, and without consideration income-producing that the furniture was a not an asset. Plaintiff testified the furniture the mar- appraised tial home was at a $34,275, value of but totaling approximately indicated items, that several appraisal. $6,000,had not been included in the Defen- accepted appraisal, dant the values on the with the exception dryer, refrigerator, and treadmill. furnishings with The court determined “that primarily in defendant, home, the marital are $40,000.” worth spent

Plaintiff testified that was on furni- Bay for the ture Harbor condominium and that the parties’ value of the half-interest in the furniture was majority or $25,000 $25,500.Plaintiff testified that the July 1, of the furniture was delivered after 1999. year Therefore, the furniture was less than a old at the time of trial. testified that she and Defendant purchased Arlene Ireland the furniture for the condo- parties’ $24,280.25 minium for that, therefore, one-half interest in the furniture $12,250. was The furnishings “[t]he court found that in the condo, or one-half of those, the value of the Court would $25,000, determine to be and as the condo is awarded furnishings.” to the defendant, so will the value of the assigned The values to the furniture awarded to clearly supported by defendant are the record, and are not erroneous. The trial court awarded Bay defendant the marital home and the Harbor con- thought logical dominium, it that the furniture in stay particularly the residences at the residences, parties jointly where the owned the condominium with the Irelands. argues failing that the trial court erred in

to consider the fact that the furniture awarded to her income-producing. nothing was not However, in the record indicates that the trial court did not consider the fact that the furniture awarded to defendant was income-producing. judgment The of divorce awarded $570,775, defendant some of which included income-producing Therefore, assets. the trial court’s equita- award of furniture to defendant was fair and ble of the facts of the case. Gates v Gates

Defendant next that when the trial court Bay marital Harbor home, golf awarded her the property, and the Wildwinds it erred in membership, require plaintiff pay past all debt due on failing temporary with order properties these consistent court before the entered July 3, 2001, opinion order, divorce. In its trial court stated: ordered, cost[,] [p]laintiff

On June at his performed repairs have certain made or maintenance at the former marital awarded to or she could home [defendant performed and have such services the reasonable amounts money judgment. to the This incurred would added [p]laintiff completed determines either required necessary steps work or took the and reasonable necessary negotiate to do so. To the extent to a check recently having which was revealed as been sent to settle consequential an insurance claim for some of the work or damages, [p]laintiff sign relinquish shall all claims to the check.

The trial court’s determination that either “plaintiff completed required necessary work or took the steps supported by and reasonable to do so” is clearly record, and is not erroneous.

Defendant next that the trial court erred in argues Bay failing plaintiff pay $26,067 to order due on the membership, comprised approximately Harbor golf $3,590 principal payments, and interest dues, in club due before June 2000. After a review record, of the entire it cannot be said that the trial responsible is not plaintiff court’s determination that membership on the is owing golf for the amount clearly trial how the recognized erroneous. The court stipulated came to on the value of the agree App 256 membership golf adjust- did not believe that an necessary. ment was

Defendant next that the trial argues court erred in failing plaintiff pay order $28,537 due on the Wildwinds lot owned with Mr. a Spangler. After review of the record, entire it cannot be said that the court’s determination that respon- is not sible for the amount on the owing 4660 Wildwinds property erroneous. The trial court recog- percent nized ownership defendant’s ten interest and testimony referenced defendant’s requested she property and could “get along” with Spangler. The trial court did not err any determining that expenses property associated with the are defendant’s responsibility. a

After review of the entire record, it is clear that particular court’s valuation of marital assets was not clearly erroneous. The trial division equitable was fair and in light of the facts of case, and we affirm. next that the trial court erred awarding only her spousal rehabilitative support $200 the amount of years. week for five Whether to award is in the trial court’s discre- tion, and we review the trial court’s award for an abuse of discretion. Korth v Korth, 286; 662 NW2d 111 (2003); Magee v Magee, 218 Mich App 158, 161-162; 553 NW2d 363 On (1996). appeal, we review the trial court’s findings fact concerning spousal support for clear error. Moore v Moore, Mich App 652, 654; 619 NW2d 723 (2000). The find- ings presumptively are correct, and the burden is on appellant to show clear error. Beason v Beason, 435 Mich 791, 804; 460 NW2d 207 A finding is Gates v Gates clearly erroneous if we are left with a definite and firm conviction that a has mistake been made. Beason, supra supra Moore, 804-805; at at 654-655. “If the trial court’s are findings erroneous, must then decide dispositional whether the rul- [we] ing equitable was fair and in light of the facts.” Moore, supra at 655. The trial court’s decision regarding spousal support must be affirmed unless we are firmly that Korth, supra inequitable. convinced it was Sparks, supra at 152. 288, at citing Defendant first argues, on the basis of this Court’s Staple Staple, decision in 241 Mich App 562; 616 NW2d 219 (2000), that the trial court’s award of reha- spousal bilitative support to her was nonmodifiable and that the order therefore an abuse of discre- tion. We agree clear, it is both from the trial opinion dated 2, 2000, June judgment divorce, the trial court intended to limit the duration of its award of spousal support rehabilitative years. to five However, we disagree with defendant’s assertion that this limitation of the award spousal renders the award nonmodifiable. In Staple, supra this Court made it clear that “MCL always 552.28 . . . will apply any alimony arrange- adjudicated by ment the trial court when the are unable to reach their own agreement.”

Thus, under both Staple, supra, and MCL 552.28, because the spousal-support provision of the divorce resulted from disposition the trial court’s rather than agreement parties, of the the judgment may interpreted preclude not be from defendant seeking spousal support, or, to continue in other words, modify support award, at the end five-year period rehabilitative established 434 256 Mich 420 Opinion Court precise Additionally, language the trial court. specify spousal the divorce does not judgment years,1 of five support will forever cease at the end amount only but instead states that the rehabilitative by court, based on the evidence established years. trial court reaf- trial, will end after five The July approach in its order dated 2001. firmed this reject that the we defendant’s contention Accordingly, trial court was support awarded nonmodifiable. if the trial court’s

Defendant next claims even spousal support modifiable, award of rehabilitative inappropriately five-year limitation on the award prov- shifts from to defendant the burden of spousal support beyond continue ing whether should five-year period. We The modification of disagree. spousal support an award of must be based on new arising judg- facts or circumstances after the changed Moore, supra party ment of divorce. at 654. The mov- for modification has the burden of such ing showing circumstances. Ackerman v changed new facts or Ackerman, NW2d App 300, 302; 173 supports defendant’s con-

Nothing MCL 552.28 statutory proof tention that there is a burden of imposed that, effect, requires the trial court provide The does that the award of “rehabilitative upon remarriage shall cease of the defendant or the defendant’s (Emphasis added.) spousal support remarriage death.” Termination of on permitted by is, course, expressly 552.13, MCL and defendant has not provision. Additionally, challenged this has not claimed that the defendant spousal support upon trial court’s order that would terminate her death is contrary equitable authority under MCL 552.23 or that provision spousal support this renders the award of nonmodifiable con trary requirements to the of MCL 552.28. v Gates spousal-support make a permanent award that cannot payer modified unless the establishes basis for modification. Defendant also cites no case law sup- port this claim. we the principle reaffirm Accordingly, may that either party seek modification of an award spousal support of any time, at and that the party seeking upward the whether or modification, down- the ward, justification bears burden of proving the for the Ackerman, supra modified award. See at 302. principle case, this the instant Applying to we con- five-year clude that at the end the of rehabilitative period, may request defendant the trial court modify the award spousal-support justi- to an amount by fied facts and circumstances that exist at the time of request, the but that not, were and could not have been, before the trial at court the time the original judgment was entered.

Defendant next argues that the amount of rehabili- tative spousal support by awarded the trial court, $200 a years, week five was not based on the required factors, and therefore is inequitable. The plain of MCL language permits 552.13 a trial court to spousal support award that it “just determines be and reasonable.” Factors be considered the trial court in determining whether an of spousal award support just is and reasonable include: (1) past parties, (2) the relations and conduct of the the

length marriage, (3) parties the abilities of the work, (4) the source and amount of awarded to parties, parties’ (5) ages, (6) par- the the the of abilities the pay alimony, (7) present parties, ties to situation of (8) parties, (9) of parties, the needs health of (10) prior living parties standard of of and whether support responsible either others, (11) for the of contri- joint estate, (12) general butions of the to the 256 Mich Thames, App 299, equity. [Thames principles (1991).] 308; 477 NW2d 496 reflects that 2, 2000, opinion June The trial court’s it made its relevant factors when it considered all the and duration of the amount regarding determination Further, findings the trial court’s spousal support. therefore, are and, in the record supported fact are Id. erroneous. dispositional ruling, However, spousal support rehabilitative awarding defendant period years, $200 a for a of five the amount of week just and reasonable in cannot be considered It is well settled that the facts of the case. the incomes and is intended “to balance will parties” party so that neither needs of the Korth, supra impoverished a result of the divorce. as Moore, supra “[Wjhere par- at both 289, citing 654. assets, court, in eval- ties are awarded substantial on [spousal support], a claim for should focus uating potential of the assets and should income-earning ability self-support party’s provide not evaluate a by in the amount available for including v Hanaway value assets themselves.” Hanaway, App 278, 296; 527 NW2d 792

While were proceedings pending, divorce $200 a week in interim court awarded defendant plaintiff to make spousal support and also ordered payments a month to the debt on the reduce parties’ property judgment real and bank notes. The property marital of divorce awarded $566,608, assets valued at and awarded defendant $570,775. marital and assets with value of required by divorce, Plaintiff was not Gates however, to continue debt-reduction payments on properties awarded to defendant, despite the evi- plaintiff’s dence that gross annual income was at least three times that of defendant’s gross income, and that three of the properties awarded to defendant required monthly payments debt-reduction totaling $6,400. Fur- thermore, while the properties awarded to defendant have income-earning potential, produced the income properties these is insufficient to offset monthly debt obligations of the properties. awarded

We conclude from these $200 facts that the a week award of spousal support was unreasonable, and that in fashioning spousal its support award, the trial placed court inordinate weight on the value of prop- erty awarded to defendant, and insufficient weight on disparate incomes of the and the fact that the income-earning potential of the assets awarded to defendant was insufficient to offset disparity. this As in Hanaway, we find that “]g]iven the length of the marriage, the magnitude of the marital estate, and [plaintiff’s] capital position and potential earning after the divorce, should not expected [defendant] consume her capital to support herself.” Id.

The trial court’s award of rehabilitative spousal support for a period years of five was modifiable and within its discretion, accordance with MCL 522.28. However, dispositional ruling award- ing defendant $200 support of a week during five-year period rehabilitative is inequitable in light of the facts of the case. We remand for a deter- mination of an increased amount of spousal support. next that the trial court erred in awarding only $5,500 of the $70,900 attorney in appraisal requested. fees she We review a trial court’s 420 438 the Court of of dis- for an abuse attorney fees to award decision App 325, Stoudemire, 248 Mich v Stoudemire cretion. of discretion An abuse (2001). NW2d 274 344; 639 “ paipably and ‘is so only where the result occurs not it evidences logic violative of fact grossly will, of perversity will but of the exercise thereof, not but defiance judgment exercise ” or bias.’ passion rather of of reason but exercise 879-880; 526 NW2d Mich Fletcher, 447 Fletcher v Mich Spalding, 355 Spalding v (1994), quoting 889 NW2d 810 382, 384-385; (1959). as a considering judgment that,

We conclude only $5,500 attor- trial court’s award of whole, the fees and costs ney fees out of discretion was an abuse of by defendant requested Attorney fees in a appropriate. and that remand is necessary only to are awarded as divorce action a prosecute or defend suit. party enable well settled that a supra at 344. It is Stoudemire, invade assets to sat- required not be party should on the attorney party relying fees when the isfy Maake, support. Maake same assets NW2d 664 App 184, 189; spousal support above, noted the amount As we inadequate. by the trial court is awarded to defendant record that even apparent from the account- It is also week, $200 a support award of for the ing satisfy her con- income is insufficient defendant’s costs, and that she attorney fees and siderable debt awarded her required to invade the assets would be pay in order to those fees. of divorce judgment comparatively substan- plaintiff enjoyed a Because following advantage tial income erred the trial court divorce, we conclude v Gates 439 of Court attorney making requires an of award fees that defen- dant to invade her On remand, assets. the trial court’s attorney award of fees should reflect the extent to spousal support which its award leaves the comparable with assets and income to one another. supra Hanaway, supra at Ackerman, 302; at 299. argues also that we should remand this appellate case for a determination her fees and paid by plaintiff, specific costs to be or a order appellate attorney Wiley Wiley, amount of fees. v 214 App (1995). 614, 616; Mich NW2d 543 64 MCR provides party 3.206(C)(1) may, any that “a at time, request party pay that court order the other to all part attorney expenses or of the fees related to provides 3.206(C)(2) party MCR action.” “a that requests attorney expenses allege who fees must party facts sufficient to show is unable to expense bear action, and that the other party pay.” is able Defendant is unable to bear the expense appeal of this action on for the same reasons spousal sup- we have determined award of port attorney inadequate. fees court is Therefore, on remand the trial court shall also deter- appropriate attorney mine an award of fees for this appeal. judge

Defendant next that the trial should disqualified. reviewing disqualify When a motion to judge, findings a we review the trial court’s of fact applicability an abuse of discretion; however, the facts to relevant law is reviewed de novo. Arm strong Ypsilanti Twp, App v 573, 248 Mich 596; 640 (2001). Dep’t NW2d 321 See Cain v also Correc (1996). 38; 451 Mich tions, 470, 503 n 548 NW2d 210 256 App judge Disqualification warranted. is not of the trial Supreme for dis- order “[i]n has held that Our 2.003(B)(1) pursuant qualification to be MCR proper, judge actual bias have shown must party’s supra attorney.” party against at Cain, a a or “ general deleted). (emphasis ‘[a]s a addition, In disqualified showing judge absent is not a trial rule, ” Armstrong, supra prejudice.’ bias or of actual People quoting 753, Houston, 446 NW2d 543 756; appears argue that case, defendant

In the instant by trial court actual bias demonstrates the record disqualify itself as trial court declined because the disqualify, requested motion to defendant’s contempt failure to the defendant later held disagree. comply of the court. We with an order rulings, never themselves, of almost in and “[JJudicial alleging bias, valid for a motion constitute a basis ‘ “deep-seated opinion displays judicial a unless the judg- antagonism fair that would make or favoritism ’ heavy presump- impossible” a and overcomes ment supra Armstrong, judicial impartiality.” 597, at tion of Liteky supra quoting quoting v United Cain, 496, at 127 L Ed 2d 1147; 114 S Ct States, 540, 555; 510 US deep-seated showing favorit- of 474 No such made here. ism or bias has been plaintiff’s that because Defendant also contends a had been awarded contract Ireland, Inc., firm, Gates County an Courthouse, the Branch to renovate warranting impropriety” “appearance exists, of Supreme disqualification. Court has Our trial court’s may acknowledged situations in which that “there be judge impropriety part appearance of a on the process strong a to the level of due ... so as to rise is 441 v Gates Opinion by J. Sawyer, supra violation,” Cain, n 48, at 512-513 “ necessary showing of actual bias is not ‘expe- where the probability rience teaches that of actual bias on part or judge decisionmaker is too high ” Crampton Dep’t v constitutionally tolerable.’ State, 347, 351; 352 (1975), quot- 235 NW2d Larkin, Withrow v 47; 421 US ing 35, 1456; 95 S Ct L Ed 2d 712 (1975). pose Situations that such a risk include judge

where the or decisionmaker pecuniary (1) outcome; has a interest (2) target personal “has been the abuse or criticism party him”; from the before (3) petitioner is involving “enmeshed matters [other] .”; .. or

(4) might prejudged prior par- have the case because of ticipation accuser, investigator, as an fact finder or initial 351, [Crampton, supra decisionmaker. quoting Withrow, supra n Mississippi, at 47 15 and Johnson US 215; 1778; L (1971).] S Ct 29 Ed 2d 423 None four exceptions to the actual-bias requirement present is in the instant case, and, accordingly, appearance there no of impropriety warranting reversal of court’s order denying defendant’s to disqualify. motion

Affirmed in part, part, reversed in and remanded proceedings for further opinion. consistent with this do retain jurisdiction. We not Schuette, P.J., concurred. (concurring part dissenting and J.

Sawyer, part). I respectfully portion dissent from that of the majority’s decision would reverse trial court on the of alimony attorney issues and fees. As the 420 Mich Sawyer, J. alimony award we review acknowledged, majority equitable is fair and if it to determine unless we should not reverse and we of the case facts in- award is that the firm conviction left with a are 141, 152; Mich Sparks, 440 v Sparks See equitable. the trial I am satisfied (1992). 485 NW2d left and I am not this issue handled properly court inequitable. award is that the a firm conviction with attorney fees, we review of for the award As Kosch of discretion. for an abuse court’s decision NW2d 434 354; 592 App 346, Kosch, 233 “the result must discretion, To be an abuse (1999). and logic violative of fact grossly and palpably be so perver of will but not the exercise that it evidences but defiance judgment sity will, not the exercise pas rather of of reason but thereof, not the exercise 382, 384- Spalding, 355 Mich Spalding v sion or bias.” decision The trial court’s NW2d 810 385; 94 violative of fact grossly palpably was not here will, it was not perversity not a it was logic, certainly was it most the defiance of I Accordingly, or bias. passion exercise of court on this issue. affirm the trial would I would affirm reasons, the above For on all issues. court

Case Details

Case Name: Gates v. Gates

Court Name: Michigan Court of Appeals

Date Published: Jul 1, 2003

Citation: 664 N.W.2d 231

Docket Number: Docket 236158

Court Abbreviation: Mich. Ct. App.