Edge v. Edge

• Decision Date: 27 December 2012
• Docket Number: Docket No. 308633.
• Citation: 299 Mich.App. 121,829 N.W.2d 276
• Parties: EDGE v. EDGE.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 121

829 N.W.2d 276

EDGE

v.EDGE.

Docket No. 308633.

Court of Appeals of Michigan.

Submitted Dec. 11, 2012, at Lansing.

Decided Dec. 27, 2012, at 9:00 a.m.

Nichols, Sacks, Slank, Sendelbach & Buiteweg, P.C., Ann Arbor, (by Monika Holzer Sacks), for plaintiff.

Haas & Associates, PLLC (by Trish Oleksa Haas), for defendant.

Before: WHITBECK, P.J., and FITZGERALD and BECKERING, JJ.

BECKERING, J.

In this hotly contested child-custody case, we must determine whether the circuit court erred when it awarded plaintiff, Jo Edge, appellate costs and attorney fees incurred as a result of the decision of defendant, Joel D. Edge, to appeal the circuit court's custody determination. After the circuit court awarded plaintiff sole legal and physical custody of the parties' minor child and reduced defendant's parenting time, defendant appealed. We affirmed and awarded plaintiff taxable costs under MCR 7.219 for having fully prevailed on appeal. Plaintiff did not move this Court for damages for a vexatious appeal under MCR 7.211(C)(8) and MCR 7.216(C) or MCL 600.2445. Rather, plaintiff moved the circuit court for attorney fees and costs incurred in the appeal, citing MCR 2.114(D)(1) and (E), MCR 7.208(I), and MCR 3.206(C). Plaintiff argued that defendant's unsuccessful appeal was frivolous and suggested that only defendant was able to bear the expense. The circuit court granted plaintiff's motion and awarded her $14,398.27 in appellate attorney fees and costs as sanctions on the basis that defendant's appeal in this Court was frivolous. Because neither the statute nor the court rules on which the circuit court relied authorized it to grant appellate attorney fees and costs on the basis of a frivolous appeal in this Court, we hold that the circuit court abused its discretion by doing so. We also hold that, contrary to plaintiff's contention, the circuit court did not grant plaintiff appellate attorney fees and costs under MCR 3.206(C). Accordingly, we reverse.

I. FACTUAL BACKGROUND

Plaintiff and defendant entered into a consent judgment of divorce in June 2008. Under the consent judgment, plaintiff and defendant were to have joint legal custody of their minor child. After holding an evidentiary hearing, the circuit court in September 2010 entered an order that awarded plaintiff sole legal and physical custody of the minor child and reduced defendant's parenting time. Defendant appealed in this Court. We affirmed the circuit court's order and awarded plaintiff taxable costs under MCR 7.219 for having fully prevailed on appeal.¹

Four months later, plaintiff filed a verified motion in the circuit court for attorney fees and costs pursuant to MCR 2.114(D)(1) and (E), MCR 7.208(I), and MCR 3.206(C). Plaintiff requested that the court award her $14,858.27 in appellate attorney fees and costs for defendant's unsuccessful appeal. Plaintiff generally asserted that defendant had “demonstrated an ongoing pattern of unnecessary and unreasonable litigation without regard to the facts or law which ... caused [her] to needlessly incur superfluous attorney fees and costs.” Plaintiff argued that her resources were “limited” and that the “frivolous actions ... caused a severe drain on those resources.” Plaintiff insisted that an “award of appellate attorney fees is generally left to the trial court to decide because the trial court is in a better position to evaluate the need and/or ability for the payment of said fees by the parties.” Plaintiff also insisted that a “trial court may order appellate attorney fees under MCR 3.206.” Plaintiff noted that her annual salary was $21,600 and that defendant's annual salary was $62,675.08.

Without holding a hearing, the circuit court issued an opinion and order granting plaintiff's motion for attorney fees and costs. At the outset of its opinion, the court noted that it was granting plaintiff attorney fees and costs “as sanctions.” In its legal analysis, the court first explained that this Court determined that the circuit court did not err with respect to any of the issues defendant raised in his appeal. The circuit court next explained the following:

In matters involving domestic relations, attorney fees are at times awarded, within the discretion of the trial court, when necessary to enable a party to carry on or defend a suit. In enforcement proceedings the court may also award attorney fees if one party is unable to bear all or a portion of those fees.... Further, the court may award a party attorney fees necessitated by the other party's failure to comply with the divorce judgment.

The circuit court then discussed the factors to consider when determining the reasonableness of an hourly fee and concluded that plaintiff's counsel's hourly rate was “not excessive” and that the services charged were “not unwarranted.” The circuit court then opined as follows:

Overwhelming evidence was presented during the evidentiary hearing to support this Court's findings, and was noted by the Court of Appeals in its ruling that Plaintiff had fully prevailed. The Court finds that Defendant's claims, as presented to the Court of Appeals, were completely without merit.

The Court will acknowledge that merely because a party is unsuccessful on appeal does not automatically mean that he is responsible to reimburse the other party for the costs of the litigation. However, a party that signs a pleading certifies by that signature that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. In this case, Defendant's signature, or his attorney's signature on his behalf, created meritless ... litigation for which no credible evidence existed to support his claims and arguments.

As a result, the Court finds that Defendant's claims on appeal were clearly frivolous pursuant to MCR 2.114(D)(1) and (E), MCR 7.208(1)[sic], and MCR 3.206(C), MCR 2.625(A)(2), and MCL 600.2591.

On this basis, the circuit court awarded plaintiff $153.27 in costs and $14,245 in attorney fees, totaling $14,398.27. Defendant moved the circuit court for reconsideration, which the court denied.

II. ANALYSIS

Defendant argues that the circuit court did not have the authority to award appellate attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), MCR 3.206(C), MCR 7.208(I), or MCL 600.2591. Defendant also argues that, even if the circuit court had this authority, his appeal in this court was not frivolous and therefore could not justify an award of attorney fees and costs under MCR 2.114, MCR 2.625(A)(2), and MCL 600.2591; the court did not actually award plaintiff fees and costs under MCR 3.206(C); and, even if the court did award plaintiff fees and costs under MCR 3.206(C), it abused its discretion because the factual allegations in plaintiff's motion were insufficient to show that plaintiff was entitled to attorney fees and costs under MCR 3.206(C).

We review for an abuse of discretion a trial court's ruling on a request for attorney fees. Smith v. Smith, 278 Mich.App. 198, 207, 748 N.W.2d 258 (2008). “An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes.” Id. “The findings of fact on which the trial court bases its decision are reviewed for clear error.” Woodington v. Shokoohi, 288 Mich.App. 352, 369, 792 N.W.2d 63 (2010). Furthermore, we review de novo issues of statutory interpretation and the interpretation of court rules. Bint v. Doe, 274 Mich.App. 232, 234, 732 N.W.2d 156 (2007).

A. MCR 2.114, MCR 2.625(A)(2), AND MCL 600.2591

Generally, “ ‘[a]wards of costs and attorney fees are recoverable only where specifically authorized by a statute, a court rule, or a recognized exception.’ ” ²Keinz v. Keinz, 290 Mich.App. 137, 141, 799 N.W.2d 576 (2010), quoting Phinney v. Perlmutter, 222 Mich.App. 513, 560, 564 N.W.2d 532 (1997). Both the Michigan court rules and statute provide a method for this Court to award attorney fees and costs for litigation before this Court. See MCR 2.114; MCR 7.216(C); MCR 7.219; MCL 600.2445.

This Court may sanction a party under MCR 2.114(E) for a document signed in violation of MCR 2.114. See BJ's & Sons Constr. Co. v. Van Sickle, 266 Mich.App. 400, 413, 700 N.W.2d 432 (2005) (finding a violation of MCR 2.114(D) and (E) in furtherance of a vexatious appeal). MCR 2.114(E) states that, if a party signs a document in violation of MCR 2.114, “the court, on motion of a party or on its own initiative, shall impose upon the [party] ... an appropriate sanction, which may include an order to pay to the other party ... the amount of the reasonable expenses incurred because of the filing of the document, including reasonable attorney fees.” Under MCR 2.114(C)(1), “[e]very document of a party represented by an attorney shall be signed by at least one attorney of record. A party who is not represented by an attorney must sign the document.” When a party signs a document, the party certifies, to the best of “his or her knowledge, information, and belief formed after reasonable inquiry, [that] the document is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law[.]” MCR 2.114(D)(2). The party also certifies that “the document is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” MCR 2.114(D)(3).

MCR 7.219 addresses taxation of costs and fees on appeal. MCR 7.219(A) states that, “[e]xcept as the Court of Appeals otherwise directs, the prevailing party in a civil case is entitled to costs.” ³ Furthermore, MCR 7.219(I) provides that this Court “may impose costs on a party or an attorney when in its discretion they should be assessed for violation of these rules.” Significantly, this Court has consistently held that a trial court does not have jurisdiction to tax costs incurred on...