Devolder v. Lee
| Decision Date | 10 November 2015 |
| Docket Number | Case No. 14-cv-10624 |
| Parties | MELANIE A. DEVOLDER, Plaintiff, v. RICHARD L. LEE, JR, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
In 2009, Plaintiff Melanie DeVolder retained Defendants to represent her in her divorce action in Midland County Circuit Court. Following the entry of her Judgment of Divorce on October 21, 2011, DeVolder retained new counsel to address post-judgment matters. She then brought the instant action on February 10, 2014, alleging that Defendants had committed legal malpractice representing her during the divorce case as well as having breached a promise to her. DeVolder's breach of implied promise claim was dismissed on a motion to dismiss as duplicative of her legal malpractice claim under Michigan law, and her remaining claim of legal malpractice proceeded to discovery. See ECF Nos. 15, 22.
On July 31, 2015, Defendants filed two motions. In the first, Defendants move to strike the expert witness testimony of Rebecca Tooman. ECF No. 28. In the second, Defendants move for summary judgment on DeVolder's remaining allegations. ECF No. 29. Based on the following, Defendants motion to exclude the expert testimony of Rebecca Tooman will be denied. Defendant's motion for summary judgment will be granted.
Plaintiff Melanie A. DeVolder married her now ex-husband on May 31, 1986. See Pl. Br. in Resp. to Mot. for Summ. J. 1 [hereinafter Pl.'s S.J. Resp.]. The couple had two sons. Id. The first was born in 1988 and the second was born in 1990. Id.
Plaintiff DeVolder earned an Associate Degree in Nursing in 1987, and worked as a full time labor and delivery nurse until approximately 1994. Id. She then worked only part time until 1996. Id. DeVolder resumed working as a Hospice Nurse during the winter of 2008, but only for around 8 to 10 hours a week. DeVolder then began working full time in 2009. During 2009, Plaintiff DeVolder earned $28,225 in income. She made around $39,109 in 2010.
Mr. DeVolder worked for State Farm. During the year of 2009, Mr. DeVolder earned just over $200,000 working in State Farm's executive office. Id. at Ex. 3 at 58-59. In April of that year, Mr. DeVolder was informed that he would be terminated at the end of the 2009 calendar year because he was missing too many days of work. Id. Mr. DeVolder was then given the opportunity to take a position as an executive agent with State Farm, which he accepted. Id. at Ex. 3 pp. 59-60. Following his move to the agency position, Mr. DeVolder earned around $115,000 in 2010. Id. at Ex. 3. 65.
Throughout their marriage, Plaintiff explains, Mr. Devolder and Plaintiff had an active, albeit somewhat deviant sexual life. DeVolder alleges that this aspect of the relationship was partially responsible for the eventual breakdown of the marriage. As a result of their sexual practices Plaintiff DeVolder contends she suffered, and continues to suffer from a variety of physical, mental and emotional health problems.
DeVolder left her husband on around July 8, 2009, and retained Defendants Richard L. Lee, Jr. and his firm, Mathieu & Lee Attorneys, PLC, in August 13, 2009 to file a separate-maintenance action. See Def.'s Mot. for Summ. J. Ex. 2 pp. 55-58, ECF No. 32 [Hereinafter Def.'s S.J. Mot.]; Compl. ¶ 7. Defendants filed the action in Midland County Circuit Court, and the case was assigned to Judge Jonathan E. Lauderbach. Compl. ¶ 8. Mr. DeVolder, represented by William Brisbois, answered and filed a counter-complaint for divorce.
After the initial filing, Mr. DeVolder removed Plaintiff's name from their mutual accounts. See Def.'s S.J. Mot. Ex. 2 at. 69-70. In response, Defendant Lee filed a Petition for Relief with the Court on January 22, 2010. Id. See also Def.'s S.J. Mot. Ex. 6. DeVolder was awarded $10,000 as a result of this motion. See Def.'s S.J. Mot. Ex. 7.
On January 14, 2010 Defendant Lee filed a petition for temporary alimony during the pendency of the case on behalf of Plaintiff DeVolder. See Id. at Ex. 4. The court denied the petition on February 16, 2010 on the grounds that Plaintiff DeVolder was gainfully employed. See Id. at Ex. 5.
The parties sold their marital home around May of 2010. Pl.'s S.J. Resp. Ex. 3 p. 12. There was a large mortgage on that property, and so Plaintiff DeVolder claims she only recovered $4,000 from that sale. Id. In December of 2010, Plaintiff DeVolder purchased a condominium in Noblesville, Indiana with proceeds from the sale of mutual funds. Id at 11. She lived in Indiana throughout the divorce proceedings.
In October of 2010, while the divorce proceedings were pending, Plaintiff DeVolder underwent an ileostomy procedure.1 See Pl.'s S.J. Resp Ex. 3 p. 175. The parties agreed that the surgery was necessary, and was likely a result of the parties' sexual practices. Id. at Ex. 17 13.
On July 21, 2011 Plaintiff DeVolder sent an email to Defendant Lee expressing concern about the progress of the divorce proceedings. Id. at Ex. 13. In that email, DeVolder explained that she was not seeking medical expenses, but just wanted Mr. DeVolder to pay for her out-of-network Psychologist Harvey Power's expenses, her attorneys' fees, and her next month of special physical therapy. Id. Ms. DeVolder also thanked Defendant Lee for his efforts. Id.
The case was scheduled for trial on August 1, 2011. When the parties arrived on that date, they began active settlement discussions. Id. at Ex. 17 37-38. Alimony was the primary obstacle in reaching a settlement. See Pl. S.J. Resp. p. 5. Plaintiff DeVolder was concerned about future medical and insurance payments. Pl. S.J. Resp. p. 4. Plaintiff was paying out-of-network Psychologist Harvey Powers around $1,500 a month to treat PTSD that she contends resulted from her marriage. Id. She was also concerned about additional surgeries she needed to have as a result of the parties' sexual practices. Id. at Ex 17 p. 17. Mr. DeVolder did not want to pay any alimony. See Def.'s S.J. Mot. Ex. 12 p. 76-77. With assistance from Judge Lauderbach, the parties reached a negotiated settlement agreement on that date that awarded Plaintiff DeVolder non-modifiable monthly alimony for a period of four years. See Pl. S.J. Resp. p. 5.
After the parties informed Judge Lauderbach that they had reached a settlement, a divorce hearing was held. At that hearing on questioning from Defendant Lee, DeVolder testified as follows:
See Def.'s S.J. Motion Ex. 15 9-14. Based on this testimony and his consultation with the attorneys, Judge Lauderbach found the settlement agreement fair and equitable to both parties. Id. at 15.
On October 21, 2011, DeVolder signed the Judgment of Divorce that reflected the terms of the settlement agreement. Pl.'s S.J. Resp. Ex. 9. The Midland Court entered the judgment that same day. Id. Pursuant to the Judgment of Divorce, DeVolder was to receive $2,000.00 per month in alimony for a period of 36 months, and then $1,000.00 per month for a period of 12 months. Id. at 2. The alimony was to be "non-modifiable as to amount and/or duration" and to terminate upon the earlier of DeVolder's death or forty-eight months. Id. In addition, DeVolder would receive a one-time payment of $15,000.00 following the entry of the Judgment of Divorce. Id. at 4.
Concerning the property division, the Judgment of Divorce declared that each party would be entitled to one-half the gross value of: (1) the combined IRA's; (2) Mr. DeVolder's 401(K) plan through State Farm; (3) Mr. DeVolder's pension; and (4) the mutual funds heldthrough State Farm. Id. at 3. Each party was awarded any and all accounts already in his or her name, and each party also took responsibility for his or her own debts. Id. at 4-5.
The Judgment of Divorce also provided that "[i]f either party has failed, either intentionally or unintentionally, to disclose any of his or her assets, the issue of property division may be reopened on the motion of...
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