Opinion
No. 335873
08-08-2017
RACHEL M. KENZIE, Plaintiff-Appellee, v. THOMAS R. KENZIE, Defendant-Appellant.
UNPUBLISHED Livingston Circuit Court
LC No. 15-050224-DM Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ. PER CURIAM.
In this divorce case, defendant appeals as of right the trial court's order overruling his objections to the reasonableness of the attorney fee award in the judgment of divorce. However, defendant also raises issues on appeal related to the judgment of divorce itself, including custody of the minor children. In the interest of justice and judicial economy, we exercise our discretion to treat defendant's claim of appeal as a delayed application for leave to appeal, and grant leave to appeal on the issues raised in defendant's brief. We affirm.
The parties married on May 30, 1997, and soon after purchased land and built a home in Livingston County. The home is located in a rural area, and the parties raised animals for meat for their own use. Plaintiff is a registered nurse, and defendant is an electrician. Both parties were employed throughout the marriage and earned roughly equal salaries. The parties have two minor children.
After the children were born, plaintiff's mother helped care for them when both parties were at work. As the kids got older, they went to daycare and later to school, and plaintiff's mother continued to help with their care. Plaintiff worked 7:00 a.m. to 7:30 p.m. three days a week on a rotation requiring her to work every third weekend. Defendant worked a day shift Monday through Friday.
Defendant handled the parties' finances. They held a joint checking account at First National Bank in Fowlerville. They had one debit card that defendant kept in his possession. Defendant would give plaintiff cash or the debit card when she asked for it. They also had a second checking account for a rental property they owned. The rental property was a neighboring property the parties purchased in 2008 after it went into foreclosure. Both parties also had retirement accounts through their respective employers.
In 2008, defendant slipped and fell and injured his back requiring surgery and several months of recovery. After he recovered, he continued to work as an electrician, but found a job that was less strenuous and did not require him to lift anything over 50 pounds. Defendant was in pain after the surgery and the pain was difficult for him to control. He went to a pain clinic regularly and was prescribed morphine. Plaintiff stated that during the months after the surgery when defendant was being treated for pain he became more on edge and would yell at her and the kids more often. Defendant spent more time in the barn and isolated himself.
In the years after defendant's surgery, the parties experienced financial trouble. Defendant continued to handle the finances. There were ATM withdrawals from their bank account, but bills were going unpaid and they were often bouncing checks and incurring overdraft fees. Plaintiff confronted defendant because she did not understand why the bills were not being paid. In July 2015, defendant told plaintiff that he had run up a $20,000 credit card debt and wanted to take out a loan to pay it off. After this incident, plaintiff decided to open her own account and the parties agreed to split the bills.
In 2015, defendant tested positive for methamphetamines when he was screened at the pain clinic. He went to a required appointment with an addiction doctor, but did not see the doctor. He told plaintiff that the clinic would not take a check and that the people there "looked like they were all on heroin." Defendant smoked marijuana, and plaintiff conceded that she occasionally smoked marijuana with him. Plaintiff observed marijuana and paraphernalia on the table in the basement of the marital home where it was accessible to the children.
In late September or early October of 2015 plaintiff discovered activity on defendant's phone indicating he was involved with online dating websites. Plaintiff investigated defendant's online activity and found profiles with pictures of defendant in their backyard with the family dog on Match.com, SeniorPeopleMeet.com, Chemistry.com, and other online dating sites. There were also pictures of defendant in his office. When she confronted defendant about this, he said, "[O]ur marriage sucks and I've wanted a divorce." There were charges on defendant's credit card statement to various online dating sites. Defendant stated that he did not authorize these charges, but there was nothing in the credit card statement to indicate that he had sought to have them reversed. Defendant denied using any dating websites.
Plaintiff filed a complaint for divorce on October 21, 2015. The parties continued living together and defendant became verbally abusive and called plaintiff names. He blamed her for causing the divorce and yelled at her in front of the children.
In addition to being verbally abusive, defendant also engaged in stalking behavior toward plaintiff. On November 11, 2015, plaintiff went to her attorney's office to discuss the divorce. During the meeting, defendant called and texted plaintiff to let her know he knew where she was. Plaintiff had not told defendant where she was going that day. Later that evening, defendant showed up uninvited to a home where plaintiff was watching a football game with friends. He pulled into the driveway and left; he then texted plaintiff, "yeah, that was me."
Defendant wanted a "50/50" custody arrangement and did not want a schedule in place. Plaintiff wanted a schedule that fit her work schedule. Following a settlement conference at which the parties could not agree on a custody arrangement, defendant became verbally abusive toward plaintiff while the children were in the home. He was angry at her because he was "going to get investigated." The parties met with a friend of the court investigator together and separately. The investigator asked defendant to submit to a drug test. He made an obscene statement and gesture toward her and refused to comply. At trial, defendant asserted that he refused to submit to drug tests because he felt he was "being railroaded" and that the tests violated his constitutional rights.
Defendant lived in the basement of the marital home until moving out on January 30, 2016. The parties had mediation the following week. On the evening following the mediation defendant arrived at the marital home and began yelling at plaintiff while she was on the phone with her sister. He was angry that she had told the mediator that he had moved out. According to plaintiff, defendant began hitting himself in the face and then called the police and told them plaintiff had hit him. The police arrived, but no arrests were made. After the police left, defendant left the house and did not return.
The court granted plaintiff's ex parte motion to have exclusive use of the marital home on February 8, 2016. On February 15, 2016, the court entered a stipulated order allowing defendant's counsel to withdraw. On March 8, substitute counsel entered her appearance. Counsel moved for an adjournment on April 20, five days prior to trial. Counsel argued that she had inadequate time to prepare and that defendant's prior attorney had not responded to discovery. Plaintiff's attorney argued that this matter needed to go to trial quickly to preserve the parties' assets and provide stability for the children. Plaintiff's attorney stated that defendant had threatened her in the hall prior to the hearing and that plaintiff's friends were unwilling to testify in the matter because they were afraid of defendant. The court denied the motion to adjourn and trial began on April 25, 2016. On the first day of trial, defendant saw plaintiff in the hall at the courthouse and told her to "get her lies together." When returning from lunch, defendant gave plaintiff the middle finger.
Plaintiff stated she wanted the court to grant her full custody of the children and allow defendant parenting time when he can prove that he is not using drugs. Plaintiff stated that she did not believe defendant to be in his right mind and that he had not made an effort to see the children. Plaintiff suggested that every other weekend would be an appropriate parenting time schedule.
Regarding the best interest of the children, defendant testified as follows:
Q [By plaintiff's counsel]. Mr. Kenzie, are you opposed to the children staying in the home that they've grown up in?
A. No.
Q. Are you opposed to them staying in the home with Ms. Kenzie?
A. Yes.
Q. Why is that?
A. Because I have been drug through the mud for the last eight months. I've been called a drug dealer, a drug abuser, a wife abuser, a child abuser. I've been railroaded by FOC and on and on it goes.Defendant then changed his position and agreed that staying in the home with plaintiff would be in the children's best interest.
Q. My question, Mr. Kenzie, is why you do not want the children to be in that home with Ms. Kenzie.
A. I would like my children to be in the home, but just everything that's been done to me, I, it's, I think the houses should be sold.
Q. What does that, what is [sic] the best interest of your children have to do with you?
A. The best interest of my children, they wouldn't have been kept away from me for the last four months, if you want to talk about best interest of the children.
Following the close of proofs, and based on discussion held on the record, the trial court ordered defendant to submit to a 10-panel urine and hair follicle drug test, for which plaintiff agreed to pay. On May 10, 2016, before delivering its opinion from the bench, the trial court reopened proofs to allow testimony from Annette Wilson, an administrator from the court drug and alcohol testing center. Defendant tested positive for "methamphetamines, THC, and saboxel (phonetic)." Wilson testified that defendant attempted to bribe her and asked her what it would take "to have these tests results go away."
The trial court made its ruling from the bench, first finding that the objects of matrimony had been destroyed and that there remained no reasonable likelihood the marriage could be preserved. The trial court reviewed the testimony and generally found plaintiff to be a credible witness. The court found that defendant had engaged in emotional domestic violence and stalking. The court also found that defendant's description of events was "fuzzy" regarding timing and generally lacking in detail. The court noted that defendant's answers to interrogatories were incomplete and "lacking attention to detail," and that this lack of detail had caused unnecessary litigation in this matter. The court further found defendant's explanation for the dating website profiles to be incredible and concluded that he was lying under oath when he denied using those sites. The court stated, "He said he was not buying drugs; I don't believe that. He says he is not buying dates with other women; I don't believe that." The trial court divided the marital property and awarded child custody as discussed in more detail below. The court made no provision for spousal support and awarded guideline child support. Judgment of divorce was entered on June 13, 2016.
I. ADJOURNMENT
Defendant first argues that the trial court abused its discretion by not granting his motion to adjourn. We disagree.
A trial court's ruling on a motion for an adjournment is reviewed for an abuse of discretion. In re Jackson, 199 Mich App 22, 28; 501 NW2d 182 (1993). "[A]n abuse of discretion occurs only when the trial court's decision is outside the range of reasonable and principled outcomes." Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). A motion for adjournment of trial can be granted for good cause. MCR 2.503(B)(1). "[C]ases upholding a denial [of a motion to adjourn] have always involved some combination of numerous past continuances, failure of the movant to exercise due diligence, and lack of any injustice to the movant." Ruffin v Kent, 139 Mich App 479, 480-481; 363 NW2d 14 (1984). "Where a motion to adjourn is requested in order to complete discovery, the inquiry focuses on whether the movant has shown an adequate explanation for the failure to complete discovery and whether the failure was due to a lack of diligence in preparation." Id. at 481-482.
Although this is not a case where the moving party had requested "numerous past continuances," defendant did fail to exercise due diligence by properly responding to discovery requests, and there was no injustice to defendant because of the trial court's denial of the motion to adjourn. Defendant's counsel did not request an adjournment to complete discovery, but rather for more time to respond to discovery. In this situation, going to trial without this discovery would have prejudiced plaintiff and not defendant. It is unclear from defendant's argument what information from his own financial records he wished to present at trial but was unable to. Defense counsel's explanation for why subpoenas were necessary is lacking in merit. The documents plaintiff requested were all statements from defendant's credit cards and various accounts. There is no explanation for why the institutions holding these accounts would not give the information to defendant immediately upon request. Defendant's counsel provided no explanation for why she needed these documents other than for general preparation for trial.
In reviewing the hearing transcript, it appears that the trial court's primary concern was that there had been a breakdown of the mediation process and that this matter needed immediate resolution by trial. Plaintiff's counsel described being verbally accosted by defendant while entering the courthouse and she stated that she was unable to find witnesses to testify because they were afraid of defendant. Defendant would not voluntarily submit to drug testing, and there was no indication he would have if given more time. There was no custody order in place, and there was a risk that the mortgage on the marital home would go into default. Although the court appeared to sympathize with defendant's counsel and stated that it had "rushed" her into trial, the court made no indication regarding how it would have divided the property differently or ruled on the issue of child custody differently had defendant adequately responded to plaintiff's discovery requests. Given the history and circumstances of the matter, denying the motion to adjourn was not outside the range of reasonable and principled outcomes. See Saffian, 477 Mich at 12.
II. CHILD CUSTODY
Defendant next argues that the court erred by not granting him joint legal and physical custody of the minor children. We disagree.
To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. [MCL 722.28.]"By its terms, [MCL 722.28] distinguishes among three types of findings and assigns standards of review to each. Findings of fact are to be reviewed under the 'great weight' standard, discretionary rulings are to be reviewed for 'abuse of discretion,' and questions of law for 'clear legal error.' " Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 (1994). Under the great weight of the evidence standard, "a reviewing court should not substitute its judgment on questions of fact unless they clearly preponderate in the opposite direction." Id. at 878 (citations and internal quotations marks omitted). "This Court will defer to the trial court's credibility determinations, and the trial court has discretion to accord differing weight to the best-interest factors." Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).
In any child custody dispute, the overriding concern is the best interests of the children. Deel v Deel, 113 Mich App 556, 559; 317 NW2d 685 (1982). Here, the trial court found, and the parties did not dispute, that an established custodial environment existed with both parents. "The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c). "The court shall not . . . issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." Id. "Generally, a trial court determines the best interests of the child by weighing the twelve statutory factors outlined in MCL 722.23." Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). MCL 722.23 states:
As used in this act, "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
In this case, the trial court's finding that factor (a) slightly favored plaintiff was not against the great weight of the evidence. The evidence demonstrated that, although defendant had been an involved parent throughout much of the children's lives, he became more distant in the years leading up to the divorce and was verbally abusive toward plaintiff in the presence of the children. He left the marital home in January 2016, and had no parenting time for three months leading up to the trial. He refused to comply with drug testing and behaved erratically. Further, while the children were bonded to both parents, they primarily looked to their mother for guidance because she had spent more time with them. The trial court did not err in weighing this factor in plaintiff's favor because the evidence does not clearly preponderate in the opposite direction.
The trial court's finding that factor (b) slightly favored plaintiff was not against the great weight of the evidence. Although the trial court found both parties to be involved parents, the court noted defendant's verbal abuse toward plaintiff and his lack of recognition of its effect on the children. Defendant argues that this factor should favor him because he taught his daughter to cook and taught his son to repair equipment. However, the evidence overall did not clearly preponderate in favor of defendant and the trial court did not err by weighing this factor in plaintiff's favor.
The trial court's finding that factor (c) favored both parties equally was not against the great weight of the evidence. The court noted that they each make relatively the same amount of money, that both had made purchases for the children, and that they both had adjusted their hours for the needs of the children. While defendant claims that this factor should have favored him because he raised livestock for the family to eat, both parents appeared to have the disposition to provide the children with care and material needs. It was not against the great weight of the evidence to find both parties equal in this regard.
Factor (d) favored plaintiff because she lived with the children in the home they had always known. Defendant moved out in January 2016, and before that his behavior became erratic and he spent more time away from the home. During the pendency of the divorce, he was verbally abusive toward plaintiff in the presence of the children. It was not against the great weight of the evidence for the court to weigh this factor in favor of plaintiff.
The trial court did not specifically address factor (e), but consideration of the existing custodial home is subsumed in its discussion of factor (d).
Under factor (f) the court cited defendant's use of dating websites and use of illegal drugs. Defendant's only argument is that he "absolutely denied" using dating websites. The trial court made a credibility determination and found defendant to be lying under oath about his use of dating websites. His phone received messages through the sites, plaintiff found several online profiles and printed them off, and defendant's credit card statement reflected expenditures to several online dating sites. His explanation was preposterous. It was not against the great weight of the evidence for the court to find in plaintiff's favor on this factor.
Under factor (g), the trial court questioned defendant's mental state citing his absurd denial of his use of dating websites. Defendant is correct that there was no expert testimony or medical evidence that he had a mental health issue. However, in MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 457; 705 NW2d 144 (2005), this Court held that "numerous . . . incidents involving defendant's volatile anger" could support a finding in favor of the other party under this factor. Here, defendant was verbally abusive toward plaintiff as well as toward officers of the court. He engaged in stalking behavior and was belligerent up to and including the dates of trial. It was not against the great weight of the evidence for the court to find that this factor favored plaintiff.
Defendant challenges the trial court's finding that both parties were equal regarding factor (h) based on things he taught the children to do outside of school. However, defendant offers nothing more than an unsupported statement that he trained his children to repair equipment around the house. The court found that plaintiff was more likely to be the parent who took the kids to parent-teacher conferences. The court found that the children were doing well and that both parents were involved in getting them to school. It was not against the great weight of the evidence for the court to find the parties equal under this factor.
The court found that the children were old enough to express a preference under factor (i) and took their preferences into consideration without stating the preferences. See MacIntyre, 267 Mich App at 458 ("The trial court need not violate the child's confidence by revealing that preference on the record.")
Regarding factor (j), the court found that defendant had shown poor judgment in talking to the children about the divorce. The court also found that plaintiff wanted defendant to have a relationship with the children, but was concerned about his drug use. These findings were not against the great weight of the evidence, and the trial court correctly weighed this factor in favor of plaintiff.
The court's finding under factor (k), that defendant had engaged in emotional domestic violence and stalking toward plaintiff, was supported by the record and was not against the great weight of the evidence. Plaintiff's testimony was that defendant had been verbally abusive toward her after the divorce action was filed, and had attempted to control what she revealed to the mediator and the friend of the court officer. Defendant sent plaintiff a text message when she was at her attorney's office and showed up later at the home of plaintiff's friend. Both times, plaintiff had not told defendant where she was going. This suggests that defendant was following her or tracking her in some way. The trial court correctly characterized this behavior as stalking and properly weighed this factor in favor of plaintiff.
The court also considered, as "any other factor considered by the court to be relevant," that defendant had used dating websites and that he had not attempted to have parenting time with the children while the litigation was ongoing. These considerations also favored plaintiff.
In summary, the trial court's findings of fact regarding the best interests of the children were not against the great weight of the evidence. The trial court's award of sole legal and physical custody to plaintiff with successively increasing parenting time to defendant based on his continued negative drug testing was not an abuse of discretion. To the contrary, given defendant's behavior at trial and throughout the pendency of the divorce, this was a fair custody award that essentially granted joint physical custody to each party on condition that defendant demonstrate that he is no longer abusing drugs. The court's ruling took into account the fact that for a significant portion of the marriage defendant had been a committed father and demonstrated a capacity to provide love and proper guidance for the children. The court was rightly concerned with defendant's drug use and his unwillingness to accept responsibility for the harm it had caused the children.
Defendant's argument regarding many of the factors was that the trial court should have taken more facts into consideration in making its determination. However, the trial court's findings and conclusions "need not include consideration of every piece of evidence entered and argument raised by the parties." MacIntyre, 267 Mich App at 452. Defendant's argument is essentially that the trial court could have considered more facts in his favor. But defendant does not demonstrate how the facts that the trial court did find were against the great weight of the evidence, or how the trial court's discretionary rulings were outside the range of reasonable and principled outcomes. And, as plaintiff correctly points out, the trial court was in the best position to judge the credibility of the witnesses.
III. PROPERTY DIVISION
Defendant also argues that the trial court's property division was inequitable. We disagree.
The trial court expressed its intent to divide the marital property evenly between the parties. The court awarded the marital home to plaintiff, giving it a net equity value of $106,700. The court ordered the rental property sold giving it an appraised value of $185,000 with a mortgage debt of $78,578. The court also found $56,859 in joint debts and ordered that they be paid off before the net proceeds of the sale of the rental property (approximately $49,562.80) would go to defendant. The court awarded plaintiff her vehicle valued at $5,754. The court awarded tractors and implements valued at $7,800 to plaintiff.
The trial court found that defendant had taken $12,500 from the parties' First National Bank account without explanation, factoring into that number that defendant often gave plaintiff cash out of the ATM withdrawals. The court credited defendant as having received that money out of the marital estate. The court awarded each party their individual retirement accounts held by Edward Jones ($14,490 to plaintiff; $17,490 to defendant). The court awarded plaintiff her 403B account worth $18,032, and awarded defendant his 403B account worth $57,813 including the withdrawals he had made and assigning him any tax consequences from the withdrawals. To equalize the division of assets, the court awarded plaintiff 43.5% of the parties' $119,068 Edward Jones IRA account and 56.5% to defendant. Thus, the court concluded, each party was awarded about $204,600.
When considering the issue of property division in a divorce case, "[t]he appellate court must first review the trial court's findings of fact under the clearly erroneous standard." Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). "A finding is clearly erroneous if the appellate court, on all the evidence, is left with a definite and firm conviction that a mistake has been made." Olson v Olson, 256 Mich App 619, 629; 671 NW2d 64 (2003). "If the findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts." Sparks, 440 Mich at 151-152. "[T]he ruling should be affirmed unless the appellate court is left with the firm conviction that the division was inequitable." Id. at 152.
The trial court's property division was fair and equitable under the circumstances. "The goal of the court when apportioning a marital estate is to reach an equitable division in light of all the circumstances." Byington v Byington, 224 Mich App 103, 114; 568 NW2d 141 (1997). In reaching an equitable division of the marital estate, the trial court is to consider the following factors whenever they are relevant to the circumstances of the particular case:
(1) duration of the marriage, (2) contributions of the parties to the marital estate, (3) age of the parties, (4) health of the parties, (5) life status of the parties, (6) necessities and circumstances of the parties, (7) earning abilities of the parties, (8) past relations and conduct of the parties, and (9) general principles of equity. [McNamara v Horner, 249 Mich App 177, 185; 642 NW2d 385 (2002), quoting Sparks, 440 Mich at 159-160.]
In this case, the trial court made a near equal division of the marital property, awarding each party about $204,600. Defendant argues that the division was in fact not equal and that equality was only arrived at by an accounting trick.
Defendant challenges the trial court's decision to pay the joint debts out of the sale of the rental home before the net proceeds went to defendant. It is unclear what defendant's dispute is with this action. The court arrived at the award of $49,526 for the net value of the rental home by starting with the appraised value, deducting the mortgage, and using the proceeds to pay the parties' joint debts. The court could have itemized the joint debts on a separate line and awarded him a greater value for the rental house, but the net result would have been the same. The court used the parties' joint Edward Jones IRA to equalize the final division, so if more debt had ended up in plaintiff's column, she would have received a larger share of the IRA. The court's accounting simplified the balance sheet by eliminating the debt, but there would have been no net change if the court had done it the way defendant suggests.
Defendant argues that "the $12,500.00 First National account award to [defendant] is a sham." There was testimony that defendant made cash withdrawals from the family checking account that he could not explain. There was evidence that defendant was using drugs and transferring money through dating websites. It is not entirely clear from the trial court's opinion how the court arrived at the $12,500 figure. Plaintiff stated at trial that she believed defendant had taken $38,000 from the family checking account over the past two years. She also conceded that half of that money belonged to defendant. She stated that defendant would often give her cash when she asked for it. The trial court attempted to make a 50/50 division "recognizing that there has been misconduct by [defendant] and items that were not explained, as far as expenditures, where money just disappeared." Fault or misconduct by one of the parties can be considered as a factor in equitably dividing a marital estate. Sparks, 440 Mich at 158. However, the court may not give "disproportionate weight to any one circumstance." Id. "The trial court is given broad discretion in fashioning its rulings." Id. at 158-159. There is no "rigid framework for applying the relevant factors" and "there can be no strict mathematical formulations." Id. Considering the testimony regarding the missing money, defendant's drug use, and defendant's unexplained transfers of money through dating websites, we are not left with a firm and definite conviction that the trial court made a mistake in crafting its ruling. Adding $12,500 to defendant's column to account for unexplained missing money was an equitable means of dividing the marital estate. The court expressly stated that it was taking into consideration defendant's misconduct. Had the court ignored the testimony regarding missing money and attempted to divide the remaining assets evenly, the award would have been inequitable to plaintiff, because defendant would have unjustly benefited from his misconduct. Accordingly, defendant's claim is without merit. See id. at 152.
IV. ATTORNEY FEES
Defendant finally argues that the trial court erred by granting plaintiff $12,000 in attorney fees. We disagree.
A grant or denial of attorney fees is reviewed for abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). "Any findings of fact on which the trial court bases an award of attorney fees are reviewed for clear error." Id. The trial court did not abuse its discretion in awarding plaintiff her attorney fees in this matter.
The trial court addressed attorney fees in its ruling as follows:
I am going to, based upon what I've described as the conduct of Mr. Kenzie during the course of this litigation, the answering of interrogatories, the denials of the use of drugs, notwithstanding positive testing, I am going to award Ms. Kenzie her attorney fees for prosecution of this action, as testified to by her in the amount of $12,000. And that sum should be paid from the sale of the rental home at the time of sale.MCR 3.206(C)(2), which governs pleading in a divorce case, states as follows:
A party who requests attorney fees and expenses must allege facts sufficient to show that
This Court has held "that an award of legal fees is authorized where the party requesting payment of the fees has been forced to incur them as a result of the other party's unreasonable conduct in the course of the litigation." Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723 (1992); see also Richards v Richards, 310 Mich App 683, 700-701; 874 NW2d 704 (2015).(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.
The trial court was correct to label defendant's conduct unreasonable. Soon after plaintiff filed the divorce action, defendant followed her to her lawyer's office and continued stalking her as a means to pressure her into accepting his requests. He became belligerent when plaintiff would not capitulate to his wishes. When the friend of the court officer required him to submit to drug testing, he made a vulgar gesture to her and refused to comply. He initiated an altercation with plaintiff following mediation at which he called the police and accused plaintiff of domestic violence. He gave evasive answers to interrogatories and gave incredible explanations at trial for his financial misconduct and use of dating websites.
There was nothing particularly complex about the facts of this case that required extensive litigation. The parties should have been able to reach a settlement regarding both property division and child custody. The final result was a near even split of the assets and a parenting time schedule for defendant that will eventually grant him the 50/50 custody he requested if he can comply with the court's orders regarding drug testing. At every turn defendant obstructed the mediation and discovery process that would have allowed the case to reach a settlement posture. His child-custody demands were unreasonable in light of his testing positive for illegal drugs and his erratic, abusive behavior. His desire for the marital home to be sold, notwithstanding his later concession that staying in the marital home would be in the children's best interest, was another unreasonable demand that was simply unnecessary for the equitable division of the marital estate. The findings of fact on which the court based its award were not clearly erroneous. See Reed, 265 Mich App at 164. In light of the numerous pre- and post-judgment motions plaintiff was required to file, the award of $12,000 to plaintiff for attorney fees was not an abuse of discretion. See id.
Affirmed. Plaintiff is entitled to tax costs as the prevailing party. MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
/s/ Michael J. Kelly