Attorney fees,what should you pay!

SAGINAW DIVORCE REVIEWED BY ATTORNEY TERRY BANKERT A DIVORCE LAWYER. For immediate help with your family law questions call 810-235-1970.
THE SAGINAW DIVORCE COST AND ATTORNEY FEE CASE
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
(This opinion has been modified for media presentation)
To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf
SAAD, J.
Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.
V. COSTS AND ATTORNEY FEES
Plaintiff argues that the trial court erred in awarding her only a fraction of the costs and attorney fees she sought. This Court reviews a trial court’s decision to award attorney fees in a divorce action for an abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). The findings of fact on which the trial court bases its decision are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007).
A court in a divorce action may award attorney fees to enable a party to carry on or defend the action. MCR 3.206(C)(1); Stallworth, 275 Mich App at 288-289. MCR 3.206(C)(1) provides that a party to a divorce action may request the trial court to order the other party to pay all or part of the party’s attorney fees. The party seeking attorney fees must allege facts sufficient to show either that the party is unable to bear the expense of the action, and that the other party is able to pay, MCR 3.206(C)(2)(a), or that the attorney fees were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, MCR 3.206(C)(2)(b). The party requesting the attorney fees has the burden of showing facts sufficient to justify the award. Borowsky v Borowsky, 273 Mich App 666, 687; 733 NW2d 71 (2007).
Attorney fees in a divorce action are awarded only as necessary to enable a party to prosecute or defend a suit. Gates, 256 Mich App at 438-439. It is well settled that a party should not be required to invade assets to satisfy attorney fees when the party is relying on the same assets for support. Id. The property division and the award of attorney fees “function in tandem,” and a party may be ordered to pay the opposing party’s attorney fees if that party was awarded insufficient liquid assets in the property division to pay the fees and costs. Olson, 273 Mich App at 354. In Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999), a wife who received $1.2 million in marital assets could not show that she was unable to bear the expense of the divorce action; consequently, this Court concluded that she was not entitled to attorney fees. However, in Ozdaglar v Ozdaglar, 126 Mich App 468, 473; 337 NW2d 361 (1982), this Court held that the plaintiff wife, who was still unemployed, was entitled to attorney fees, notwithstanding her substantial property award, on the ground that she should not be required to pay attorney fees from her share of the marital estate, which she needed to support herself.
Plaintiff submitted a Certification of Plaintiff’s Counsel Fees and Costs to the trial court on June 6, 2008. Plaintiff retained George Snyder of Meyer, Kirk, Snyder & Lynch, PLLC, from Bloomfield Hills and Timothy Fryhoff of Fryhoff & Lynch, PLLC, Bloomfield Hills, as well as Christopher Picard of Burkhart, Picard, Tiderington & McLeod, PLLC, of Saginaw, to represent her in the action. Plaintiff submitted billing documentation that purportedly adjusts the Detroit- area attorneys’ fees to the prevailing rates for legal services in the Saginaw area, and that also adjusted the fees to eliminate charges for duplicate services. She requested a total of $80,226.11, plus $16,400 for reimbursement of Selley’s expert fee. Defendant fails to acknowledge this submission, and argues that plaintiff failed to submit any documentation in support of her request. He also argues that plaintiff was required to present proof of attorney fees in the course of trial, notwithstanding MCR 3.206(C)(1), which provides that 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.”
The trial court failed to explain its decision to award plaintiff only $25,000, less than half of the amount requested. Without adequate findings of fact, there is no basis for determining whether the trial court’s award represented an abuse of discretion. Under the circumstances, the error is not harmless. Although defendant questions plaintiff’s need for three attorneys, including two from out-of-town, it is not obvious that the fees were unreasonable after they were adjusted for local rates and to eliminate redundancy. Moreover, plaintiff did not receive any liquid assets other than the payment of alimony-in-gross over a six-year period. Plaintiff will presumably need to use these funds for living expenses, including a home in the Saginaw area. This circumstance raises the question of whether plaintiff must invade assets that she needs for living expenses in order to pay her attorney fees. Ozdaglar, 126 Mich App at 473. Accordingly, the trial court should make appropriate findings on remand.
Defendant also argues that the trial court properly denied plaintiff’s expert fee because the trial court gave no credence to Selley’s opinion. We have found no authority for the principle that an award of costs to cover an expert’s fee is in any way tied to the party’s success regarding the matter on which the expert testified. The trial court’s rejection of Selley’s analysis does not necessarily mean that plaintiff retained him to advance, in defendant’s words, “a totally bogus claim.” Moreover, our ruling regarding plaintiff’s right to discovery of the P.C.’s business records to establish defendant’s interest in the P.C. undermines defendant’s position regarding expert fees. Accordingly, this argument is without merit. Posted here by
Terry Bankert
http://attorneybankert.com
see
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CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
　
[2]
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Terry Bankert
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MISC
FOOTNOTES
1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.
　
　
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