RIEMER v JOHNSON
Docket No. 321057
Michigan Court of Appeals
August 18, 2015
311 MICH APP 632
Plaintiff Andrew Riemer and defendant Christa Johnson contested custody, child support, parenting time, and attorney fees in a 19-day trial in the Manistee Circuit Court concerning the parties’ minor child, ARJ. The parties began dating in 2007 or 2008 and never married. ARJ was born in 2011. After the lengthy trial and numerous motions and hearings, the court, Thomas N. Brunner, J., issued an opinion that (1) gave both parties joint physical and legal custody of ARJ, (2) outlined a parenting time schedule that progressively increases plaintiff‘s parenting time with the minor child over a period of years, finally arriving at a 50/50 parenting time schedule as of June 1, 2017, (3) ordered plaintiff to pay child support in an amount that gradually decreases over a period of years and settles at $3,012 a month after June 1, 2017, and (4) ordered plaintiff to pay defendant a portion of her attorney and expert witness fees. Plaintiff appealed, and defendant cross-appealed.
The Court of Appeals held:
1. The trial court‘s ruling regarding custody of the minor child was not an abuse of discretion. Plaintiff argued that the trial court‘s findings regarding best-interest factors (b), (d), (f), and (g) should have favored him. Plaintiff‘s fundamental argument was that defendant‘s instances of dishonesty, and her behavior during her pregnancy and during the demise of the parties’ relationship should have weighed in his favor. The trial court acknowledged that defendant had engaged in angry outbursts, but noted that she parented ARJ in a kind, loving, and nurturing manner. The trial court concluded that defendant‘s behavior was situational and was not indicative of a shortcoming in her moral fitness or mental health. Plaintiff also contended that the best-interest factor accounting for the length of time a child has lived in a stable and satisfactory environment should not have weighed in defendant‘s favor because defendant restricted his time with ARJ when the parties’ relationship was ending. The trial court acknowledged that defendant was initially restrictive but noted that defendant had complied with the trial court‘s temporary orders regarding parenting time and had resolved with plaintiff important decisions affecting ARJ‘s welfare. The trial court‘s assessment of the best-interest factors was not against the great weight of the evidence, and even though more factors weighed in favor of plaintiff, the trial court did not abuse its discretion by awarding the parties shared physical custody.
2. The trial court‘s decision to award parenting time according to a schedule that gradually increases plaintiff‘s parenting time over a period of more than three years was not an abuse of its discretion. The trial court‘s decision was based on expert testimony indicating that a smooth and gradual transition to equal parenting time was better for a child emotionally and cognitively. And contrary to defendant‘s assertion that any change to the parenting time schedule must be precipitated by proper cause or change of circumstances, the future adjustments to the parties’ parenting time were documented in the trial court‘s original January 2014 judgment and so did not constitute a modification or amendment of the parenting time judgment.
3. Even if the trial court erred by permitting a witness whose background was in political science, rather than psychology, to testify as an expert in father-child relationships, any error was harmless. Although there was disagreement among the other experts regarding the witness‘s qualifications and methodology, the trial court relied on only one aspect of the witness‘s testimony—the importance of fathers in the lives of children. Importantly, none of the other experts disagreed with that conclusion, and in light of the consensus that fathers were significant in the lives of children, admission of the witness‘s testimony was not inconsistent with substantial justice.
4. The trial court did not clearly err by subtracting from plaintiff‘s annual income the depreciation deductions related to plaintiff‘s businesses that he claimed on his income tax returns, and then calculating the amount of child support plaintiff was to pay defendant based on that adjustment to plaintiff‘s annual income. Defendant argued that the depreciation amounts plaintiff claimed on his income tax returns should have been included in plaintiff‘s income to accurately reflect plaintiff‘s actual resources. However, although depreciation does not necessarily affect cash flow, it does affect a person‘s resources, and the trial court did not clearly err when it concluded that the depreciation deductions claimed by plaintiff were legitimate realities of plaintiff‘s businesses.
5. The trial court did not abuse its discretion by refusing to deviate downward from the Michigan Child Support Formula, and it did not err by retroactively modifying a previous support order. Plaintiff argued that the amount of child support he was ordered to pay plaintiff exceeded that which was necessary to provide for ARJ‘s care and maintenance, and that the excess child support constituted a de facto award of spousal support. Plaintiff contended that his income should not have been fully taken into consideration when calculating child support because he earned such a large income. A court may not read into the Michigan Child Support Formula a deviation factor not listed there. Plaintiff further contended that the trial court improperly made modification of a previous order of support retroactive to a date before the court‘s January 2014 opinion. Although the previous order did not indicate that it could be modified retroactively by a subsequent order, as
6. The trial court did not clearly err in its award of attorney fees to defendant, the court properly calculated the attorney fees it awarded, and the amount of fees awarded was reasonable. The trial court‘s failure to follow the procedure for determining attorney fees set forth in a case related to case evaluation sanctions was not error because the case‘s procedure did not apply to the fees defendant sought under
Affirmed.
Phelps Legal Group, PLC (by Eric W. Phelps and Morgan G. Shier), for plaintiff.
Scott Bassett for defendant.
Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.
WILDER, P.J.
I. FACTS AND PROCEDURE
The trial court set forth the following relevant facts in its January 31, 2014 opinion:
The parties are the parents of [ARJ], born April 1, 2011, and were never married.
...
Plaintiff/Father is Dr. Andrew Riemer... who is 52 years old. He is an
ophthalmologist who owns his own practice, Riemer Eye Care, with four locations. [Plaintiff] lives in Ludington, Michigan, on Hamlin Lake. He was previously married to Lori Riemer, from whom he was divorced in 2004. [Plaintiff] and Lori Riemer have six children who are now all adults. Defendant/Mother is Dr. Christa Johnson... who is 41 years old. She is a chiropractor who shares ownership in her own practice, Zeller & Johnson, in Manistee. [Defendant] lives in Manistee, Michigan. She was previously married to Eric Ross, from whom she was divorced in 2007. They had no children.
Plaintiff and Defendant started dating in late 2007 or early 2008. [Defendant] became pregnant three times during her relationship with [plaintiff]. The first pregnancy was in May 2009, which resulted in a miscarriage.
During the time of the relationship between [plaintiff and defendant, plaintiff] fathered a child with Sara Zingery. The child, [AR], was born on July 16, 2009. [Plaintiff] and Ms. Zingery were not married. Legal proceedings as to custody ensued with [plaintiff] and Ms. Zingery agreeing on shared custody of the child, [AR], with the actual sharing of time on a 50/50 basis commencing in the summer of 2013.
Subsequent to the birth of [AR], the relationship continued between [plaintiff] and [defendant] with a second pregnancy occurring, followed by a miscarriage. [Defendant]‘s third pregnancy with [plaintiff] occurred thereafter with the child, [ARJ], born on April 1, 2011.1 An Acknowledgment of Parentage was signed, and [plaintiff]‘s name appears as the father on the birth certificate.
[Plaintiff] and [defendant] were unable to agree on long-term custody and/or parenting time arrangements, and the custody suit was brought forth by [plaintiff]. Ultimately, the parties’ relationship continued to deteriorate with neither marriage occurring nor continuation of their romantic relationship.
The trial court found that the parties’ relationship continued to deteriorate after ARJ‘s birth. The trial court further found that defendant initially allowed plaintiff parenting time on her own terms and pre-dominately at her home. Defendant became upset and even more restrictive with plaintiff‘s parenting time after seeing plaintiff with AR in public. The parties engaged in mediation, which resulted in parenting time for plaintiff every Tuesday and Thursday from 6:30 p.m. to 10:00 p.m., and four to six hours every other Friday, Saturday, and Sunday. On September 1, 2011, plaintiff filed the instant action for custody and parenting time. On February 9, 2012, the trial court entered a temporary order for the same parenting time schedule that resulted from mediation and required plaintiff to pay defendant $1,500 a month in child support, effective November 8, 2011. At the November 8, 2011 hearing, the parties and the trial court addressed whether the temporary child support of $1,500 could be modified. Plaintiff‘s attorney believed that the trial court “ordered [the $1500] to continue until replaced after a review by a different figure.” The trial court stated that “neither party is stuck with” the temporary support figure.
On July 11, 2013, the trial court entered another temporary order changing plaintiff‘s
Defendant‘s request for retroactive application and mandatory child support guideline applicability is reserved; the Court will address final child support amounts or deviation therefrom, and resultant arrearages, if any, consistent with this Court‘s previous order of November 8, 2011, when it issues its opinion/order after conclusion of the present evidentiary hearing.
Following approximately 19 days of trial, the trial court entered its January 31, 2014 opinion regarding custody, parenting time, child support, and attorney fees. First, the trial court ruled that ARJ had an established custodial environment with both parents. Then it determined that Factors (a), (b), and (e) were equal, Factors (c), (j), (k), and (l) favored plaintiff, Factor (d) favored defendant, and Factors (f), (g), (h), and (i) favored neither party. The trial court ordered shared physical custody with gradually increasing parenting time for plaintiff “developed over time for a smooth transition towards accomplishing a goal of approximately equal co-parenting time for both parents.”2
The trial court awarded joint legal custody of ARJ to plaintiff and defendant. Although it found that defendant‘s anger toward plaintiff regarding their relationship had previously reduced her willingness to facilitate a close relationship between ARJ and plaintiff, the trial court concluded that the parties nevertheless had satisfactorily resolved important matters affecting ARJ‘s welfare and it was in ARJ‘s best interests for the parties to share decision-making authority.
In awarding child support, the trial court calculated plaintiff‘s adjusted gross annual income as $1,493,481, based on the average adjusted gross income from his tax returns in 2010, 2012, and his estimated return in 2013. The trial court calculated defendant‘s adjusted gross annual income as $107,722, based on the average adjusted gross income from her tax returns in 2010 and 2011, noting that in 2012, she had voluntarily reduced her work schedule to care for ARJ. From November 1, 2011, to June 15, 2012, the trial court ordered plaintiff to pay defendant $6,229 a month in child support. From June 15, 2012, to June 18, 2013, the trial court ordered plaintiff to pay defendant $6,807 a month in child support. From June 18, 2013, to January 31, 2014, the trial court ordered plaintiff to pay defendant $6,804 a month in child support. From January 31, 2014, to April 1, 2015, the trial court ordered plaintiff to pay defendant $6,204 a month in child support. From April 1, 2015, to June 1, 2017, the trial court ordered plaintiff to pay defendant $4,511 a month in child support. After June 1, 2017, the trial court ordered plaintiff to pay defendant $3,012 a month in child support. The trial court noted that it had intended the temporary orders for child
Finally, the trial court ordered plaintiff under
II. CUSTODY AND PARENTING TIME
The parties first challenge the trial court‘s order regarding custody and parenting time.
In child custody disputes, ” ‘all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ ” Dailey v Kloenhamer, 291 Mich App 660, 664; 811 NW2d 501 (2011), quoting
Whether an established custodial environment exists with one or both parents is a question of fact to be determined before the trial court makes any custody determination. Kessler v Kessler, 295 Mich App 54, 61; 811 NW2d 39 (2011); Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). If an established custodial environment exists with either or both parents, the trial court must find
In determining whether a change of custody is in the best interests of a child, the best-interest factors set forth in
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
A. BEST-INTEREST FACTORS
On appeal, plaintiff first argues that the trial court‘s findings regarding Factors (b), (d), (f), and (g) were against the great weight of the evidence. We disagree.
Factor (b) requires the trial court to consider “[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance, and to continue the education and raising of the child in his or her religion or creed, if any.”
Factor (d) requires the trial court to consider “[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”
Factor (f) requires the trial court to consider “[t]he moral fitness of the parties involved.”
Factor (g) requires the trial court to consider “[t]he mental and physical health of the parties involved.”
Plaintiff has not demonstrated that any of the trial court‘s findings regarding the best-interest factors were against the great weight of the evidence. Even though the trial court found four of the factors weighed in plaintiff‘s favor and only one factor weighed in defendant‘s favor, plaintiff has not established that the award of shared physical custody was an abuse of discretion. The “trial court need not make its custody determination on the basis of a mathematical calculation and may assign differing weights to the various
best-interest factors....” Berger v Berger, 277 Mich App 700, 712; 747 NW2d 336 (2008).
B. PARENTING TIME
Both parties challenge the trial court‘s order regarding parenting time, which gradually adjusts parenting time over the course of approximately three and one-half years and ultimately results in equal parenting time.
Parenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Except as otherwise provided in this section, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.
Plaintiff challenges the parenting time order, claiming it was based on testimony from Langer that overnights should only be added “when there‘s a reasonable likelihood that they will be positive experiences for ARJ and not occasions of distress for mother.” Plaintiff claims that parenting time should be granted consistent with the best interests of the child, not on the basis of one parent‘s distress, and notes testimony from other experts at trial that criticized Langer‘s opinion focusing on defendant‘s distress. The trial court acknowledged the critique of Langer‘s opinion, and, contrary to plaintiff‘s claim on appeal, did not rely on it when imposing a gradual adjustment to the parenting time schedule. Rather, the trial court explained the purpose of the gradual adjustment was to allow a “smooth transition” to equal parenting time. The expert testimony at trial—that it is easier on a child emotionally and cognitively to increase parenting time gradually—supported the trial court‘s conclusion. As Dr. Pamela Ludolph testified:
[Y]ou wouldn‘t want to change [a child] from... one custodial arrangement to a custodial arrangement that‘s entirely different from whatever that first one was, even if the second arrangement was very good in the long run. You would want to do it more slowly so he could ease into it.
Defendant claims that each change to the parenting time schedule ordered to occur after the date of the trial court‘s January 31, 2014 opinion could not be implemented without proper cause or a change of circumstances demonstrated at a hearing under
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
*
*
*
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.... The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.
But defendant‘s reliance on
C. EXPERT WITNESS
Defendant argues that the trial court abused its discretion by allowing Dr. Warren Farrell to testify as an expert in father-child relationships in cases of divorce and nonintact families. She claims that Farrell was unqualified to testify under MRE 702 and Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), because of his background in political science (rather than psychology), and she argues that his testimony was unreliable because there was no evidence that his literature review of studies regarding father-child relationships had been peer-reviewed, was accepted in the scientific community, or had a known rate of error. We conclude that even if the trial court admitted the expert testimony in violation of MRE 702 and Daubert, any error
was harmless. See Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675 (2003) (“A trial court error in admitting or excluding evidence will not merit reversal unless a substantial right of a party is affected... and it affirmatively appears that failure to grant relief is inconsistent with substantial justice...“) (citations omitted). See also
III. CHILD SUPPORT
Next, defendant argues that the trial court miscalculated the amount of child support required under the 2013 Michigan Child Support Formula (MCSF), while plaintiff argues that the trial court should have devi-ated downward from the formula, and that the trial court improperly modified its first temporary child support order retroactively. We disagree.
“Generally, this Court reviews child support orders and orders modifying support for an abuse of discretion. Whether the trial court properly acted within the child support guidelines is a question of law that this Court reviews de novo. This Court also reviews questions of statutory construction de novo.” Fisher v Fisher, 276 Mich App 424, 427; 741 NW2d 68 (2007) (citations omitted). “Finally, to the extent that the trial court made factual findings in determining the amount of support under the child support formula, those findings are reviewed for clear error.” Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007).
“The formula shall be based upon the needs of the child and the actual resources of each parent.”
First, defendant claims that the trial court erred in calculating plaintiff‘s income for purposes of child support by excluding depreciation taken by plaintiff‘s limited liability companies (LLCs).
2013 MCSF 2.01(E)(4) provides, in relevant part:
(e) Deductions for Taxes. For a variety of historical and policy reasons, the government allows considerable deductions for business-related expenses before taxes are calculated. Those same considerations are not relevant to monies a parent has available for support. Therefore, some deductions should be considered income for purposes of determining child support, unless they are consistent with the nature of the business or occupation, including:
(i) Rent paid by the business to the parent.
(ii) Depreciation.
A parent‘s income does not include depreciation figured at a straight-line (not accelerated) rate on a parent‘s (not a corporation‘s or partnership‘s) tangible personal property other than for vehicles or home offices. Any who use accelerated depreciation for a parent‘s tangible personal property other than for a vehicle or a home office can claim a deduction for the straight-line amount if the parent provides proof of what the straight-line amounts would have been. (iii) Home office expenses, including rent, hazard insurance, utilities, repairs, and maintenance.
(iv) Entertainment expenses spent by the parent. Legitimate expenses for [a] customer‘s entertainment are allowable as deductions.
(v) Travel expense reimbursements, except where such expenses are inherent in the nature of the business or occupation (e.g., a traveling salesperson), and do not exceed the standard rates allowed by the state of Michigan for employee travel.
(vi) Personal automobile repair and maintenance expenses.
Depreciation is one of the deductions that the MCSF expressly provides should be included in a parent‘s income even though it is excluded from income for tax purposes. But the formula limits this inclusion in income by specifying that “some deductions should be considered income for purposes of determining child support, unless they are consistent with the nature of the business or occupation.” Defendant has not demonstrated that the trial court‘s finding that “there is no indication the depreciation is not a legitimate reality to the nature of the business” was clearly erroneous.5 Moreover, we reject defendant‘s claim that depreciation is merely “theoretical” and should have been included in income to fully understand plaintiff‘s “actual resources.” See
Second, defendant claims that certain income deductions taken in plaintiff‘s 2009 tax return should have been considered when calculating plaintiff‘s income for purposes of child support. But to calculate child support, the trial court considered the average of plaintiff‘s
income for 2010, 2012, and 2013. Defendant does not explain why income deductions plaintiff took in 2009 are relevant to the average income plaintiff received between 2010 and 2013. ” ‘It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave
Plaintiff argues that the trial court abused its discretion by failing to deviate downward from the MCSF. We disagree.
(2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519. The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:
(a) The child support amount determined by application of the child support formula.
(b) How the child support order deviates from the child support formula.
(c) The value of property or other support awarded instead of the payment of child support, if applicable.
(d) The reasons why application of the child support formula would be unjust or inappropriate in the case.
Plaintiff claims the child support award provides an amount more than necessary for ARJ‘s care and maintenance and constitutes de facto alimony for defendant. But our Supreme Court has explained that the formula incorporates both a child‘s needs and the actual resources of the parents. Burba v Burba (After Remand), 461 Mich 637, 648; 610 NW2d 873 (2000). “Parents’ incomes are accounted for when child support levels are set because they are one of the factors used in the formula, and the formula sets exact support levels on the basis of parents’ incomes, including parents whose incomes are disparate.” Id.
2013 MCSF 1.04(E) provides a list of situations that may cause strict application of the formula to be unjust or inappropriate. The trial court found that 2013 MCSF 1.04(E)(17) applied, but would be de minimis (“A parent provides a substantial amount of a child‘s day-time care and directly contributes toward a significantly greater share of the child‘s costs than those reflected by the overnights used to calculate the offset for parental time.“). Plaintiff does not challenge that finding as clearly erroneous. Rather, plaintiff challenges the trial court‘s finding that none of the other situations listed in 2013 MCSF 1.04(E) applied. Plaintiff claims a downward deviation was warranted under 2013 MCSF 1.04(E)(9) (“A parent earns an income of a magnitude not fully taken into consideration by the formula.“). But plaintiff‘s reliance on 2013 MCSF 1.04(E)(9) is misplaced because he does not argue that his income was not fully taken into consideration by the formula, as the plain language of the deviation factor requires. Instead, plaintiff claims his income was fully taken into consideration by the formula and should not have been because he earns so much. We cannot read into the MCSF a deviation factor that is not there. See Peterson, 272 Mich App at 518.6
action previously taken by the court but not properly recorded[.]“) (emphasis omitted).
IV. ATTORNEY FEES
On appeal, both parties challenge the trial court‘s award of attorney fees.7 Plaintiff asserts some entitlement to attorney fees on the basis that defendant‘s misconduct protracted the proceedings and increased the costs of litigation. However, plaintiff did not file a motion requesting attorney fees in the lower court. As such, any consideration whether plaintiff was entitled to attorney fees on the basis of defendant‘s conduct is unpreserved, and we decline to address it. See King v Mich State Police Dep‘t, 303 Mich App 162, 184-185; 841 NW2d 914 (2013).
Defendant argues that after the trial court determined she was entitled to attorney fees under
481 Mich 519, 530-531; 751 NW2d 472 (2008). We disagree. In Smith, the Supreme Court “review[ed] a trial court‘s award of ‘reasonable’ attorney fees
In determining whether a trial court‘s award of attorney fees under
“A finding of fact is clearly erroneous if the reviewing court has a definite and firm conviction that a mistake has been committed, giving due regard to the trial court‘s special opportunity to observe the witnesses.” In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004). A trial court does not abuse its discretion when it chooses an outcome within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
The trial court relied on Michigan Rule of Professional Conduct (MRPC) 1.5(a) and the factors articulated in Wood v Detroit Auto Inter-Ins Exch, 413 Mich 573, 588; 321 NW2d 653 (1982), in determining the amount of attorney fees to be awarded to defendant. MRPC 1.5(a) provides:
The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
The six additional Wood factors are “(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expenses incurred; and (6) the nature and length of the professional relationship with the client.” Wood, 413 Mich at 588 (quotation marks and citation omitted).
In its opinion, the trial court first analyzed the factors in MRPC 1.5(a). Regarding Factor (1), the trial court found that the issues were limited to custody, parenting time, child support, and attorney fee contribution. While the issues were not unusual and many competent attorneys in the area could have handled them, the trial court noted that the case was time-intensive—involving 19 days of trial, over 100 exhibits submitted by each party, and several expert witnesses.
Regarding Factor (2), the trial court found that even though the case was time-consuming, the attorneys for both parties—Eric Phelps and an associate for plaintiff, and Keldon Scott and Mark Quinn for defendant—had active law practices, and this case did not noticeably preclude other employment.
Regarding Factor (3), the trial court listed the mean hourly rate for attorneys in the circuit ($175), in Lansing (where Scott practices) ($221), and among family law practitioners in Michigan ($199).
Regarding Factor (4), the trial court found that while custody and child support were important to the parties, this factor was better suited to evaluating the amount at issue in a civil lawsuit seeking the recovery of damages.
Regarding Factor (5), the trial court found that no time limitations were imposed on the attorneys in the case.
Regarding Factor (6), the trial court found that defendant and her attorneys had no relationship before the case.
Regarding Factor (7), the trial court found that the parties’ attorneys were well-qualified and represented the parties well.
Finally, regarding Factor (8), the trial court found that attorney fees were “hourly based upon the amount of time spent.”
After analyzing the factors, the trial court noted the hourly rates of each attorney, i.e., Phelps ($200), Phelps‘s associate ($175), Quinn ($200), and Scott ($325), listed the amounts charged by the attorneys through August 31, 2013, and estimated the fees that were incurred afterwards. The trial court further ruled that defendant could have been well represented by one attorney at $200 an hour for a total of $186,654. The trial court also concluded that reasonable expert witness fees in the amount of $41,050 were appropriate, for a total of $227,704 to be attributed to defendant‘s expenses of defending the action. Then, as we have previously explained, the trial court ordered that a “war chest” be funded with a total of $455,408 (double the amount attributed to defendant) through payments made by the parties in proportion to their annual incomes.
Defendant challenges the reasonableness of the attorney fees awarded to her, arguing that she was disadvantaged because plaintiff incurred for his own attorney fees nearly double the amount she was awarded by the trial court to pay her attorneys. But in its consideration of MRPC 1.5(a)(1), the trial court
expressly considered the resources required given the “time-intensive” nature of the proceedings, and it ultimately concluded that defendant
Affirmed. No costs are awarded, as neither of the parties prevailed in full.
SERVITTO and STEPHENS, JJ., concurred with WILDER, P.J.