Gove v. Gove

• Decision Date: 28 September 1976
• Docket Number: Docket No. 26830
• Citation: 71 Mich.App. 431,248 N.W.2d 573
• Parties: Dorothy N. GOVE, Plaintiff-Appellee, v. Gilbert E. GOVE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 573

248 N.W.2d 573

71 Mich.App. 431

Dorothy N. GOVE, Plaintiff-Appellee, v. Gilbert E. GOVE, Defendant-Appellant.

Docket No. 26830.

Court of Appeals of Michigan.

Sept. 28, 1976.

Released for Publication Jan. 12, 1977.

Gilbert E. Gove, atty. in pro. per.

Denison, Devine, Porter & Bartush by Daniel C. Devine, Bloomfield Hills, for plaintiff-appellee.

Before MAHER, P.J., and RILEY and RYAN, ^* JJ.

RYAN, Judge.

This is an appeal as of right by defendant Gilbert E. Gove from an award of $1,250 in attorney fees entered by an Oakland County Circuit Court for plaintiff Dorothy N. Gove, upon completion of two hearings on petitions to modify a prior judgment for divorce.

The parties to this action were divorced in 1966. Custody of the parties' only child was awarded to plaintiff-wife. Defendant- husband initiated a change of custody proceeding with a petition filed in 1974; subsequently, this petition was modified by a petition filed a few months later, wherein defendant demanded definite visitation rights with his child. Plaintiff filed her own petition for an increase in child support payments in 1975. At the initial hearing, defendant was awarded specific visitation rights. At a second hearing, plaintiff's demand for an increase in child support was denied; but plaintiff's demand that defendant be ordered to pay outstanding medical bills was granted.

At the conclusion of the second hearing, defendant was also ordered to pay a portion of plaintiff's attorney fees, even though the trial court had previously determined that the plaintiff had assets well in excess of $200,000. The total amount of attorney fees requested was $5,500; the trial court trimmed this amount to $1,250.

Defendant, an attorney, now appeals In propria persona from the trial court's denial of his motion for a rehearing on the award of attorney fees to plaintiff.

I

Defendant contends that the trial court clearly abused its discretion by awarding attorney fees of $1,250 to plaintiff at the conclusion of the second hearing when the same trial court had already determined that plaintiff possessed sufficient funds to pay her own attorney fees.

We are constrained to agree with the defendant and find that the trial court abused its discretion in the instant case, even though we realize the test for finding an abuse of discretion is strict. Our Court hears an appeal in a divorce case De novo on the record and will only substitute its judgment for that of the trial court when it is clear we would have reached a different result had we occupied the position of the trial court. Irish v. Irish, 59 Mich.App. 635, 638, 229 N.W.2d 874 (1975), Mixon v. Mixon, 51 Mich.App. 696, 700, 216 N.W.2d 625 (1974). In this case, we would have reached a different result.

The governing Michigan statute on the awarding of attorney fees in domestic relations cases is M.C.L.A. § 552.13; M.S.A. § 25.93. That statute, in its pertinent part, provides as follows:

'In every action brought, either for a divorce, or for a separation, the court, in its discretion, may require either party to pay alimony for the suitable maintenance of the adverse party, * * * and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency.'

The applicable court rule which defines the paramenters for the payment of attorney fees is GCR 1963, 726.1:

'.1 Attorney Fees and Expenses.

(1) In an action for divorce, separate maintenance, annulment, or affirmation of marriage, and in subsequent petitions to modify the judgment, either party may request that the court order the other spouse to pay an attorney the sum specified as necessary to enable that party to carry on or defend the suit.

(2) The moving party shall allege facts showing that he or she is unable to bear the expense of the action without this aid. The trial judge may require the disclosure of what attorney fees have been paid.

(3) The court may order, in the judgment or in a separate order, that whatever sum it finds necessary and reasonable be paid to the wife's attorney, either by the husband or out of the assets of the husband over which the court has jurisdiction.'

In this Court's previous decisions regarding the award of attorney fees in domestic relations cases, we have consistently adhered to the principle that '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'. Mixon v. Mixon, supra at 702, 216 N.W.2d at 628.

We find nothing in the instant record indicating plaintiff required $1,250, or any part thereof, to proceed with her claim. In fact, the plaintiff conceded she possessed assets in excess of $200,000, including significant cash reserves. The plaintiff did not need the award in question to 'carry on or defend the action'.

In Mixon, supra, this Court eliminated an attorney fee award in the amount of $2000 after an examination of the record failed to disclose anything which would demonstrate that plaintiff required the $2000 attorney fee award to proceed with her claim. Similarly, in Schaffer v. Schaffer, 37 Mich.App. 711, 195 N.W.2d 326 (1972), and Pinney v. Pinney, 47 Mich.App. 290, 209 N.W.2d 467 [71 Mich.App. 436] (1973), this Court affirmed the trial courts' refusal to award attorney fees to other plaintiffs.

The trial court stated on the record that it was basing its attorney fees award on general equitable principles--without articulating any specific factors. In State Farm Mutual Automobile Insurance Co. v. Allen, 50 Mich.App. 71, 212 N.W.2d 821 (1973), however, we rejected this rationale for an award of attorney fees, especially when there is a specific statute and/or court rule which governs the situation (as there clearly is in the instant case).

The trial court, in its remarks on the attorney fees award, did make an oblique reference to defendant's modification of his original petition for a change in child custody. Perhaps the trial court believed that this remark would justify the award under GCR 1963, 111.6, which allows an award of costs, including reasonable attorney fees, when it appears that the pleadings contain unwarranted allegations and denials. However, the trial court flatly denied this intention and stated it was 'not penalizing' defendant for the custody petition.

More importantly, the trial court did find that plaintiff, by misstating her wealth, had 'perjure(d) herself', and had caused an unnecessary hearing on her petition to increase the defendant's child support payments. It is this Court's opinion that it would be highly inappropriate to award attorney fees based on unwarranted allegations by defendant in a case where the...