Chisnell v. Chisnell
| Decision Date | 11 August 1980 |
| Docket Number | Docket Nos. 44781,44821 |
| Citation | 99 Mich.App. 311,297 N.W.2d 909 |
| Parties | Beatrice M. CHISNELL, Plaintiff-Appellee, v. Robert Lloyd CHISNELL, Defendant-Appellant. 99 Mich.App. 311, 297 N.W.2d 909 |
| Court | Court of Appeal of Michigan — District of US |
[99 MICHAPP 313] Gary E. Gendernalik, Mount Clemens, for defendant-appellant.
Thomas J. McCallum, Fraser, for plaintiff-appellee.
[99 MICHAPP 314] Before V. J. BRENNAN, P. J., and BRONSON and DEMING, * JJ.
This is an appeal from orders modifying a judgment of divorce and allowing plaintiff additional attorney fees entered on April 16, 1979, and April 2, 1978 respectively.
A synopsis of the various judicial determinations involved in this litigation will aid in clarifying what is on the whole a rather confused picture of events. They may be concisely stated as follows:
On January 5, 1977, plaintiff was awarded a judgment of divorce providing that neither party receive alimony and that all of the marital property be sold with the proceeds going first to settle the liens on the property and the remainder to be divided equally between the parties. The judgment also provided that defendant pay plaintiff's attorney fee in the sum of $500. Subsequent to the entry of the judgment of divorce, defendant filed a motion for a new trial. Following a hearing on May 23, 1977, the trial court denied defendant's motion and awarded plaintiff an additional $150 in requested attorney fees.
On June 8, 1977, defendant appealed to this Court, raising an issue of first impression in Michigan: the treatment of military retirement pay in a divorce proceeding. While that appeal was pending, plaintiff secured an order to show cause against defendant as to why he should not be held in contempt for not complying with the judgment of divorce. This Court granted a stay of proceeding while the matter was on appeal. Subsequently, this Court affirmed the trial court's judgment that defendant's military retirement pay was correctly [99 MICHAPP 315] categorized as a marital asset and properly included within the property settlement. Chisnell v. Chisnell, 82 Mich.App. 699, 267 N.W.2d 155 (1978).
Defendant, thereupon, filed an application for leave to appeal to the Michigan Supreme Court which was denied. 403 Mich. 844 (1978). In the interim, plaintiff filed a brief in opposition and requested additional attorney fees of $10,000. Thereafter, defendant pursued his cause to the United States Supreme Court by way of writ of certiorari. On April 11, 1979, the United States Supreme Court requested that plaintiff's attorney file a response to defendant's petition. Plaintiff's response was filed on May 29, 1979. Subsequently, defendant's petitions for writ of certiorari, 442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310 (1979), and for rehearing, 444 U.S. 887, 100 S.Ct. 187, 62 L.Ed.2d 121 (1979), were denied.
While defendant's petition was pending in the United States Supreme Court, plaintiff filed a petition in Macomb County Circuit Court for additional attorney fees. Plaintiff also filed a petition for modification of the judgment of divorce and for an order to show cause why defendant should not be held in contempt for not complying with the judgment of divorce.
On April 2, 1979, the trial court entered an order allowing plaintiff additional attorney fees of $3,000. On April 16, 1979, the trial court entered an order modifying the judgment of divorce and ordering defendant to appear. When defendant failed to appear as ordered, the court issued a bench warrant for his arrest and cited him for contempt of court.
Defendant raises several issues on appeal which we address in our order. Defendant first contends that the trial court abused its discretion in awarding[99 MICHAPP 316] plaintiff additional attorney fees in the amount of $3,000.
The award of attorney fees and expenses rests within the sound discretion of the trial court. Schaffer v. Schaffer, 37 Mich.App. 711, 195 N.W.2d 326 (1972); Schilleman v. Schilleman, 61 Mich.App. 446, 232 N.W.2d 737 (1975). The trial court does not have unlimited discretion, however. Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Gove v. Gove, 71 Mich.App. 431, 248 N.W.2d 573 (1976); Mixon v. Mixon, 51 Mich.App. 696, 216 N.W.2d 625 (1974); Radway v. Radway, 81 Mich.App. 328, 333, 265 N.W.2d 202 (1978); Tigner v. Tigner, 90 Mich.App. 787, 791, 282 N.W.2d 481 (1979).
In the present case, the Court determined that plaintiff was in need of attorney fees to defend defendant's suit in the United States Supreme Court. Although the Supreme Court subsequently denied defendant certiorari, plaintiff's attorney was required to file a brief in opposition to defendant's motion. In Chisnell v. Chisnell, supra, another panel of this Court held that the trial court had not abused its discretion in its original award of attorney fees to plaintiff. Subsequently, defendant appealed to the United States Supreme Court twice, the Michigan Supreme Court, and the Court of Appeals. Our review of the record shows that since that time plaintiff's financial condition has certainly not improved and, in all probability, has further deteriorated. Having failed to show an abuse of discretion, we will not disturb the attorney fees awarded here. Abadi v. Abadi, 78 Mich.App. 73, 80, 259 N.W.2d 244 (1977).
Defendant's final argument concerns the April 16, 1979, modification of property settlement and [99 MICHAPP 317] issuance of a bench warrant for defendant's arrest and has both a procedural and substantive basis. We address the latter first.
Defendant correctly argues that property settlements cannot be modified in the absence of fraud, Firnschild v. Firnschild, 67 Mich.App. 327, 240 N.W.2d 790 (1976). Since plaintiff neither alleged nor proved fraud, defendant contends that the trial court erred by modifying the property settlement provisions of the judgment of divorce.
Defendant, however, fails to note the exceptions to the general rule. As this Court pointedly stated in Dougherty v. Dougherty, 48 Mich.App. 154, 158, 210 N.W.2d 151 (1973):
In the instant case plaintiff contends that the trial court's modification order was valid because its purpose was to clarify and interpret ambiguities which existed in the property settlement. We agree.
The initial property settlement contained a provision requiring the sale of certain real property [99 MICHAPP 318] but failed to state which party was to arrange and consummate the sale. As the property had not been sold as of April 16, 1979, the court modified the judgment to enable plaintiff to carry out the sale. 1 To the extent the court's order clarified the existing ambiguity as to which party was to sell the property, it was valid. Dougherty v. Dougherty, supra.
We are unable, however, to affirm the second portion of the modified provision as to the sale of real property. It states:
"IT IS FURTHER ORDERED that the plaintiff, BEATRICE M. CHISNELL may keep one-half (1/2) of the proceeds from the sale of the above mentioned properties as her sole and separate property and deposit one-half (1/2) of the proceeds from the sale of said properties with this Court for further distribution pursuant to further Order of this Court."
In Irwin v. Irwin, 85 Mich.App. 576, 578, 272 N.W.2d 328 (1978), this Court stated:
According to the judgment of divorce, plaintiff was to receive one-half of the proceeds of the sale, and defendant was to receive the other half of the proceeds. The question becomes whether, by ordering[99 MICHAPP 319] defendant's share to be deposited with the court, his rights in the property were substantively changed.
Plaintiff contends that, in light of the surrounding circumstances, equity demanded that defendant's share of the proceeds be deposited with the court for plaintiff's protection. At the time of the order, defendant owed plaintiff $8,640 of his military retirement pay and $625 in attorney fees. Therefore, plaintiff intends fairness required that defendant's proceeds be deposited with the court. Plaintiff's claim could be premised upon GCR 1963, 528.3(6), which provides that a party may be relieved from a judgment if "any other reason justifying relief from the operation of the judgment" exists.
In Boucher v. Boucher, supra, 222, 191 N.W.2d 85, the trial court accelerated payments provided for in a property settlement to plaintiff's estate after defendant was convicted of murdering plaintiff. The Court looked to see if GCR 1963, 528.3(6) justified the acceleration and found it did not.
To continue reading
Request your trial
-
Kostreva v. Kostreva
...quoting 16B Wright, Miller, & Cooper, Federal Practice & Procedure (2d ed.), § 4028, p. 403. See also Chisnell v. Chisnell , 99 Mich. App. 311, 321-324, 297 N.W.2d 909 (1980) (stating that failure to verify a pleading in a divorce action is a relatively minor procedural defect and thus, in ......
-
Cristini v. City of Warren
...of the trial court” and the trial court alone. Jones v. Continental Corp., 789 F.2d 1225, 1229 (6th Cir.1986) ; Chisnell v. Chisnell, 99 Mich.App. 311, 316, 297 N.W.2d 909 (1980).Second, the Feiger Firm's argument that “extraordinary circumstances” exist in this case is based on a faulty pr......
-
Adams v. Adams
...should be given a reasonable amount of time in which to file a proper petition for change of custody. See, e. g., Chisnell v. Chisnell, 99 Mich.App. ---, 297 N.W.2d 909 (1980). In the event the petition is not brought into conformance with the court rules, it is to be Reversed and remanded ......
-
Chisnell v. Chisnell
...fees but reversed in part another order, not pertinent to this appeal, which modified the property settlement. Chisnell v. Chisnell, 99 Mich.App. 311, 297 N.W.2d 909 (1980). Plaintiff then embarked on a series of attempts to collect the attorney fees owed by defendant. These included garnis......