Schoensee v. Bennett, Docket No. 198637
| Decision Date | 27 February 1998 |
| Docket Number | Docket No. 198637 |
| Citation | 577 N.W.2d 915,228 Mich.App. 305 |
| Parties | Kevin SCHOENSEE, Plaintiff-Appellant, v. Anna R. BENNETT, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Miller and Shensky, P.C. by Katherine Wainright Shensky, Bloomfield Hills, and Lori J. Finazzo, Mt. Clemens, for plaintiff-appellant.
O'Reilly, Rancilio, Nitz, Andrews & Turnbull, P.C. by Paul J. O'Reilly, Sterling Heights, for defendant-appellee.
Before MICHAEL J. KELLY, P.J., and MARK J. CAVANAGH and N.J. LAMBROS *, JJ.
Plaintiff Kevin Schoensee appeals as of right the trial court orders requiring him to pay defendant Anna Bennett's attorney fees and expenses and sanctioning his attorneys for failing to instruct him of his obligation to comply with a court order. We affirm and remand for proceedings consistent with this opinion.
Plaintiff and a partner started Paragon Technologies, Inc., in 1986. Plaintiff and his partner have turned the business into a profitable entity and, as a result, plaintiff is relatively well off.
Plaintiff and defendant met in 1991, when defendant worked for plaintiff's company. Subsequently, plaintiff and defendant began living together, although they never married. On June 24, 1993, defendant gave birth to the couple's daughter, Shelby. In February 1994, the couple separated.
In March 1994, plaintiff sought custody of Shelby. The subsequent custody proceedings were acrimonious, to say the least. Discovery was extensive and unduly protracted. Plaintiff retained a private investigator and accused defendant of endangering Shelby's welfare. Defendant charged that plaintiff was lax in payment of child support. The motions and other paperwork generated by the proceedings take up five lower court files.
Near the beginning of 1995, plaintiff refused defendant's offer to settle the matter amicably. However, in January 1996, plaintiff finally consented to a settlement. On February 8, 1996, the trial court entered an order providing that plaintiff and defendant would share joint legal custody and alternate physical custody of Shelby.
During the course of the proceedings, several interim orders were entered requiring plaintiff to pay portions of defendant's attorney fees. Plaintiff did not challenge the first three orders, which required him to pay a total of $14,000 toward defendant's attorney fees. However, after defendant filed a motion for additional interim attorney fees in April 1995, a hearing to determine whether additional fees should be awarded was conducted before the friend of the court referee. At the conclusion of the hearing, the referee recommended that plaintiff be ordered to pay defendant's attorney an additional attorney fee in an amount equal to what he had paid his attorneys, less the payments already made to defendant's attorney. 1 Plaintiff challenged both the amount of the recommendation and the authority of the trial court to award attorney fees in a custody case involving unmarried parties.
On August 1, 1995, the trial court issued an opinion and order on defendant's motion for interim attorney fees. The trial court found that in 1994 plaintiff's net income was approximately $600,000. Defendant, who was employed as a secretary, had a net income of around $9,000. After reviewing the parties' respective net incomes and the actual amount plaintiff had already spent pursuing custody, the court concluded that defendant was unable to maintain an adequate defense without incurring legal fees that exceeded her earning capacity. The court determined that it had authority to award attorney fees in this case, rejecting plaintiff's attempt to differentiate cases involving divorcing parents from those involving unmarried parents. The court explained: "[I]f Defendant cannot ... build a case for her version of the best interests of the parties' daughter, there is a risk that a determination of the child's best interests will not truly be ascertained." The court therefore adopted the friend of the court recommendation and ordered plaintiff to pay defendant's counsel an additional $25,000, payable in three installments within ninety days of the issuance of its order.
On August 18, 1995, plaintiff filed a motion for leave to file an interlocutory appeal in this Court. In the trial court, plaintiff moved for a stay of the order to pay attorney fees; however, the trial court denied plaintiff's motion in an order dated September 12, 1995.
On October 4, 1995, defendant filed a motion for an ex parte order to show cause why plaintiff should not be held in civil contempt for failure to comply with the court's August 1, 1995, order. Attached to this motion was correspondence between defendant's attorney, Paul O'Reilly, and plaintiff's attorneys, Katherine Wainright Shensky and Lori Finazzo. In a letter dated September 12, 1995, the day the trial court denied plaintiff's motion for a stay, O'Reilly requested the first installment. The next day Shensky responded that O'Reilly would not be receiving the requested payment because plaintiff was filing a motion with this Court to stay the order, and they were awaiting a ruling on the matter. On September 14, 1995, O'Reilly offered to place the money into an escrow account pending this Court's decision on plaintiff's motion. Shensky rejected O'Reilly's offer in a letter dated September 18, 1995, which stated, "Since we are appealing the Order of the Macomb County Circuit Court regarding the issuance of a stay, I cannot instruct my client to pay any portion of the Order."
A hearing was held on defendant's motion on October 16, 1995. The transcript of the hearing contains the following exchange:
The Court: All right. How much is due right now?
Mr. O'Reilly: Right now is due about sixteen thousand six hundred and sixty-six dollars.
The Court: All right, counselor?
Ms. Finazzo: If I may, your Honor. We never failed to comply with the Court's order.
The Court: So he's paid the money?
Ms. Finazzo: No, we took this Court's order and we sought the appropriate relief that this Court instructed us that we would have to do when we were here early September.
Ms. Finazzo: We understand that, your Honor, but we can do no more than seek that relief.
The Court: Right.
Ms. Finazzo: And what relief does my client have if he's to pay these funds? Mr. O'Reilly knows that Mr. Schoensee has the ability to pay these funds if the Court of Appeals does say that we have to do that.
The Court: All right, but what you're telling me is not--there is no law that says you can disobey a court order because you've sought a stay from the Court of Appeals.
* * * * * *
That money will be paid today or your client will spend time in jail.
On October 20, 1995, the court issued an order holding plaintiff in civil contempt for failure to comply with the August 1, 1995, order unless plaintiff paid $16,666 to O'Reilly by 4:00 p.m. on October 16, 1995. The court also ordered plaintiff's attorneys to pay all the reasonable attorney fees and costs incurred by defendant in filing her motion. Plaintiff's counsel filed a motion to vacate that portion of the order that sanctioned the attorneys personally. The court treated the motion as a motion for reconsideration, which it denied. On December 14, 1995, this Court denied plaintiff's motion for a stay of the trial court order, but remanded for consideration of plaintiff's claim that the amount of the attorney fees awarded was unreasonable.
Pursuant to an agreement between the parties, the friend of the court held an evidentiary hearing in February 1996. The hearing referee found that plaintiff's "efforts to flex his clearly superior financial muscles was [sic] a major factor in creating the extraordinary attorney fees incurred by both sides in this case." The referee further concluded that defendant's attorney would have committed malpractice had he adhered to the minimum level of advocacy assumed by plaintiff's argument. Accordingly, the referee recommended that plaintiff be ordered to pay defendant's attorney the sum of $48,533.68.
On October 2, 1996, the trial court issued an opinion and order adopting the findings of the referee, but increasing the amount of the award to include the fees incurred by defendant's counsel in pursuing attorney fees. In all, the trial court ordered plaintiff to pay $58,388.40 to defendant's attorney. The trial court rejected plaintiff's argument that the amount was unreasonable, stating: "Although the issues involved in the various motions and discovery depositions where [sic] not particularly novel, the difficulties attendant with the number of motions, the number of documents filed requiring a response and the scheduling of depositions so as to move the litigation forward has [sic] been considerable." This appeal ensued.
Plaintiff first argues that the trial court lacked authority to award attorney fees in a custody dispute involving unmarried parties. This is a question of law. In child custody cases, questions of law are reviewed for clear legal error. M.C.L. § 722.28; M.S.A. § 25.312(8); Fletcher v. Fletcher, 447 Mich. 871, 876-877, 526 N.W.2d 889 (1994). A court commits legal error when it incorrectly chooses, interprets, or applies the law. Id. at 881, 526 N.W.2d 889.
Michigan follows the "American rule" regarding attorney fees. Under this rule, attorney fees are generally not recoverable unless a statute, court rule, or common-law exception provides to the...
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