Opinion
364037 364038
03-14-2024
DENISE MCKEOWN, Plaintiff-Appellee, v. THOMAS R. MCKEOWN, Defendant-Appellant DENISE MCKEOWN, Plaintiff-Appellee, v. THOMAS R. MCKEOWN, Defendant-Appellant
UNPUBLISHED
Macomb Circuit Court LC No. 2001-003324-DO
Before: O'Brien, P.J., and Borrello and Hood, JJ.
PER CURIAM
In Docket No. 364037, defendant appeals as of right the trial court's November 14, 2022 order (the November order) holding defendant in contempt and requiring defendant to pay plaintiff s actual attorney fees as a sanction for defendant's contemptuous refusal to follow one of the court's order earlier orders. In Docket No. 364038, defendant appeals by leave granted the same November order to the extent that it granted plaintiff s petition to show cause for defendant's nonpayment of spousal support as required by an earlier order, ordered an accounting of defendant's past spousal-support payments as required by the same earlier order, and was entered in violation of the court rules. Defendant also argues that the trial court incorrectly found that the parties' original consent judgment for divorce was not nonmodifiable, despite that it did not include this alleged finding in any order. Plaintiff, for her part, addresses defendant's substantive arguments but contends that they are not properly before this Court because the decisions that defendant contests on appeal were decided in the earlier order, not the November order from which defendant appeals.
McKeown v McKeown, unpublished order of the Court of Appeals, issued March 1, 2023 (Docket No. 364038).
In Docket No. 364037, we agree with defendant that the trial court failed to adequately justify the amount of the attorney-fees sanction. In Docket No. 364038, we agree with plaintiff that the issues are not properly before us. The November order that defendant appeals from held him in contempt for failing to follow an earlier order. To the extent that the November order required defendant to continue making spousal-support payments and provide an accounting, the November order was merely enforcing the earlier order, not deciding those issues a second time. Accordingly, in Docket No. 364037, we vacate the attorney-fees sanction and remand for further proceedings on that issue consistent with this opinion. In Docket No. 364038, we affirm the November order.
I. BACKGROUND
In January 1974, defendant and plaintiff were legally married. In 2001, after 27 years of marriage, plaintiff filed a complaint for divorce. The parties eventually entered into a consent judgment. As relevant to this appeal, the consent judgment had a spousal-support provision providing:
Defendant, THOMAS R. McKEOWN, shall pay to the Plaintiff DENISE McKEOWN, non-modifiable spousal support of Six Hundred ($600.00) Dollars per month commencing June 1, 2001 through May 1, 2002, and Six Hundred Fifty ($650.00) Dollars per month from June 1, 2002 through June 1, 2003. Thereafter, Defendant shall pay to Plaintiff twenty-five percent (25%) of his gross base salary each year from July 1st through Jure 30th with a minimum payment of $40,000.00 to Plaintiff per year. This shall be paid at the rate of $3,333.00 per month and the difference, if any, due and owing July 1st of each year. This non-modifiable spousal support shall continue until Plaintiffs death or remarriage whichever occurs first, at which time it shall terminate and shall be forever barred. This spousal support shall be taxable to Denise McKeown and shall be deductible by Thomas R. McKeown and each party shall cooperate and file whatever documents may be required or convenient to effectuate this result.
The parties operated under this consent judgment for more than 20 years. In January 2022, defendant paid $2,000 to plaintiff as spousal support and claimed that this was his last such payment because he had retired and no longer owed spousal support.
This led plaintiff to petition for a show-cause order in March 2022. The petition alleged that defendant was required to continue making spousal-support payments under the parties' consent judgment. The petition requested, in relevant part, that the court enter a show-cause order requiring defendant to explain (1) why he was not obeying the consent judgment and (2) why he should not give an accounting of his "gross base salary" going back to 2003. The trial court entered the requested show-cause order the same day, requiring defendant to appear before the court and explain why he was not obeying the consent judgment and why he should not give an accounting of his gross base salary going back to 2003.
In response to the show-cause order, defendant filed a motion to dismiss plaintiff s petition to show cause on April 20, 2022. In this motion, defendant argued that, by the terms of the parties' consent judgment, he only had to make spousal-support payments if he had a "gross base salary." As defendant had retired, he no longer had a "gross base salary," and so, according to defendant, he was no longer required to make spousal-support payments. In response to the request for an accounting of defendant's salary going back to 2003, defendant argued that there was nothing in the consent judgment that would require defendant to provide such an accounting.
In reply, plaintiff argued that defendant's obligation could not have ceased because the spousal-support provision of the parties' consent judgment was nonmodifiable. She further asserted that she was entitled to an accounting because defendant had never verified his income.
The trial court heard the parties' motions at a May 2022 hearing. The court took the motions under advisement and said it would issue a written opinion. In an opinion and order issued on July 1, 2022 (the July order), the trial court denied defendant's motion to dismiss the petition to show cause. The court reasoned that defendant's motion had to be dismissed because defendant had not properly supported the motion with citation to authority. The court correspondingly reasoned that defendant had failed to show cause "why he is not required to pay spousal support to Plaintiff in accordance with the terms of the Consent Judgment of Divorce and provide an accounting to Plaintiff of his annual gross base salary since June 1, 2003." The court accordingly ordered defendant to "resume making payments and provide the requested information forthwith."
Defendant moved for the trial court to reconsider the July order. In that motion, defendant repeated his arguments that (1) he was no longer required to pay spousal support to plaintiff under the terms of the consent judgment because he had retired, and (2) nothing in the consent judgment required him to provide an accounting of his past salaries. Defendant also argued that the spousal-support requirement was modifiable, contrary to what plaintiff had argued in her reply to defendant's earlier motion. The trial court denied defendant's motion for reconsideration in an order entered on August 8, 2022. Defendant took no further action.
On September 14, 2022, plaintiff petitioned for a second no-cause order. In her petition, plaintiff alleged that defendant was still refusing to make the spousal-support payments required by the parties' consent judgment, despite the trial court's July order requiring defendant to do so. Plaintiff further alleged that she had incurred costs and fees trying "to enforce the legal obligations that Defendant has to her," and argued that defendant's refusal to comply with his legal obligations has "been intentional and without any basis in law or fact." Plaintiff accordingly requested that the trial court order defendant to, among other things, show cause (1) why he should not be found in contempt for failure abide by the court's previous orders and (2) why he should not pay the costs and fees that plaintiff incurred enforcing the prior judgments.
The trial court issued a show-cause order the same day, requiring defendant to show cause why he should not be held in contempt for violating the court's previous orders, and why he should not have to pay the fees that plaintiff had incurred "as a result of [defendant's] default under the Consent Judgment of Divorce."
On November 4, 2022, defendant responded to the show-cause order by filing another motion to dismiss the petition to show cause. Defendant again argued that he was no longer required to pay spousal support under the parties' consent judgment because he had retired. Defendant also repeated his argument that there was nothing in the consent judgment requiring "an accounting to be provided." And defendant reiterated his belief that the spousal-support provision of the parties' consent judgment was modifiable.
The trial court held a show-cause hearing on November 14, 2022. During the hearing, the trial court criticized defendant's response to the show-cause order. The court noted that it had issued a previous opinion on the issues that defendant raised in his motion, and if defendant was dissatisfied with those rulings, he could appeal. What he could not do, the court explained, was ignore the court's previous order and then, when ordered to show cause why, file what amounted to a motion for reconsideration in an attempt to relitigate the issues that the court had already decided. When defense counsel ignored the court's critique and continued trying to relitigate issues decided in the July order, the court said that it was done "entertaining" these arguments. It explained that "[a] court order is a court order," and that defendant could either follow the order or "get sanctioned." The trial court then asked plaintiff what her actual costs were since the trial court issued its July order, and plaintiff represented that her costs were $6,800 in attorney fees. The court accordingly ordered defendant to pay "$6,800 in attorney fees as a sanction for you guys not complying with the orders." The court clearly stated, "These are sanctions for noncompliance." The court said that defendant had to comply with the court's order within seven days or he would face potential jail time. The court also said that it was going to refer the case to the Friend of the Court for an evidentiary hearing regarding the accounting issue.
Following this hearing, the trial court entered an order that reflected the holdings stated above. The order did not state that it was denying defendant's motion to dismiss, nor was it signed by defendant's counsel; plaintiffs counsel signed the proposed order and sent it to the trial court, who then signed it.
This appeal followed.
II. DOCKET NO. 364037
In Docket No. 364037, defendant challenges the reasonableness of the attorney-fee award that the trial court ordered defendant to pay as a sanction for his contemptuous conduct. We agree with defendant to the extent he argues that the trial court failed to adequately justify the amount of attorney fees.
As part of its powers of contempt, a court can coerce compliance with a present or future obligation by ordering a contemnor "to reimburse the complainant for costs incurred by the contemptuous behavior, including attorney fees." Porter v Porter, 285 Mich.App. 450, 455; 776 N.W.2d 377 (2009). Such an order may be "for actual loss or injury caused by a contemnor's conduct." In re Contempt of United Stationers Supply Co, 239 Mich.App. 496, 500; 608 N.W.2d 105 (2000). See also MCL 600.1721. "The burden of proving the amount of the loss sustained rests on the party claiming it." In re Contempt of Rochlin, 186 Mich.App. 639, 651; 465 N.W.2d 388 (1990).
Here, the trial court made no findings relative to the amount of loss sustained by plaintiff as a result of defendant's contemptuous conduct, but instead merely accepted the amount stated by plaintiff s counsel. When defense counsel asked for an accounting of plaintiffs loss or "some documentation" that "substantiates" the loss, the trial court denied the request. This was error. See id. (holding that the trial court did not sufficiently explain the amount of damages that the plaintiff had suffered as a result of the defendant's contemptuous conduct because it "merely accepted the amount proposed by plaintiffs counsel" and did not "substantiate such a loss" with evidence). Under these circumstances, plaintiff is entitled to an opportunity to show the losses that she sustained as a result of defendant's contemptuous conduct. Then, on the basis of the proofs presented, the trial court may determine how much, if any, sanctions are appropriate. See id.
III. DOCKET NO. 364038
In Docket No. 364038, we agree with plaintiff that two of the issues that defendant raises on appeal-his spousal-support obligation and the requirement that he provide an accounting- were not decided in the November order. Those issues were decided in the July order. Defendant chose not to appeal the July order, and then he ignored it. This conduct resulted in plaintiff having to file a second petition for a show-cause order. While it is true that, in response to the second show-cause order, defendant raised the same issues that he now raises on appeal, those issues were not properly before the trial court and it did not need to address them. The second show-cause order was issued to decide whether defendant should be held in contempt for failing to follow the July order, and defendant's argument that the July order was improperly decided was not a basis for failing to follow it. See Kirby v Michigan High Sch Athletic Ass 'n, 459 Mich. 23, 40; 585 N.W.2d 290 (1998) ("A party must obey an order entered by a court with proper jurisdiction, even if the order is clearly incorrect, or the party must face the risk of being held in contempt and possibly being ordered to comply with the order at a later date"). In other words, the trial court decided in July that defendant continued to owe spousal support and had to provide an accounting, and by November, the court was only deciding whether to hold defendant in contempt for refusing to comply with those earlier decisions. The July order is not at issue in this appeal, so we cannot address issues decided by the July order. Accord Klco v Dynamic Training Corp, 192 Mich.App. 39, 41; 480 N.W.2d 596 (1991) (refusing to consider a challenge to an earlier order granting summary disposition because the appellant chose not to appeal that order); Surman v Surman, 277 Mich.App. 287, 294; 745 N.W.2d 802 (2007) (concluding that this Court lacked jurisdiction to entertain a challenge to an earlier order because "[a] party cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order").
We also note the oddity of defendant's argument. Defendant is asking this Court to rule that he does not have to pay spousal support or provide an accounting, even though it is not apparent that this relief was available to him before he appealed. Again, those issues were decided by the trial court in July. Whatever action defendant could have taken to avoid enforcement of the July order before November, he chose not to do it. He instead simply ignored the July order. While defendant eventually moved to dismiss plaintiff s petition for a second show-cause order (which sought to enforce the July order), that motion, at most, would have permitted defendant to avoid being held in contempt. It was not an avenue for challenging rulings made in the July order.
In short, defendant could not have avoided application of the July order in November by moving to dismiss the show-cause order that had issued against him. Correspondingly, he cannot avoid application of the July order by appealing the November order holding him in contempt for ignoring the July order. Stated differently, this appeal is not the proper vehicle for relief from the July order.
This effectively disposes of defendant's arguments related to his spousal-support obligation and the requirement that he provide an accounting of his past salaries. Those issues were decided in the July order; in the November order that defendant appeals, the trial court simply enforced the July order and held defendant in contempt.
But defendant raises two other issues on appeal that require briefly addressing. In one issue, defendant contests the trial court's supposed finding that his spousal-support obligation was nonmodifiable. In the other issue, defendant challenges the procedure used by the trial court to enter the November order.
On the issue of modification, we disagree with defendant that the trial court actually decided that defendant's spousal-support obligation was nonmodifiable. The issue of modification was first raised by plaintiff in response to defendant's argument that he no longer had to pay spousal support under the terms of the consent judgment. The trial court never ruled on plaintiffs argument, however, because it was unnecessary to resolve the issues addressed in the July order. Defendant then raised the issue of modification in his motion for reconsideration, which the court denied. Defendant next raised the issue of modification after the trial court issued the second show-cause order. Then, at the show-cause hearing, when defendant raised the modification issue, the trial court responded in confusion, presumably because defendant had not moved to modify his spousal-support obligation. Plaintiffs counsel then interjected, decrying the suggestion that the award was modifiable, and the trial court responded by saying, "It's a non-modifiable spousal support award," and plaintiffs counsel said, "Correct."
On this record, it is not apparent that the trial court ruled on whether the spousal-support obligation was modifiable. While the court did say that the support obligation was nonmodifiable, the statement was in response to arguments by defendant and was seemingly an off-the-cuff statement directed at plaintiff s counsel rather than a finding from the bench. This is further supported by the fact that it is wholly unclear why the trial court would have ruled on the modification issue-the issue was never brought before the court in a manner that required the court to decide it (such as in a motion to modify spousal support), and the trial court never said that it was basing any of its rulings on a finding that the spousal-support award was nonmodifiable. Accordingly, as we read the record, the trial court did not rule that the spousal-support obligation was nonmodifiable, so there is no issue to address.
For clarity, however, if the trial court did hold that the spousal-support obligation in the parties' consent judgment was nonmodifiable, that ruling is vacated. The parties are free to litigate the modification issue in the future.
The only remaining issue on appeal is defendant's argument that the trial court used an improper procedure to enter the November order. For this issue, we conclude that any error in the procedure used to issue the November order was harmless. See MCR 2.613(A). Defendant claims that, because the trial court failed to follow the proper procedures for entering the November order, that order omitted (1) the court's denial of defendant's motion to dismiss plaintiff's petition for a show-cause order and (2) the court's finding that defendant's spousal-support obligation was nonmodifiable. Defendant accordingly asks this court to vacate the November order and remand for the trial court to include these holdings in its order "to the extent that the [November] order is a problem for appellate review." In other words, defendant claims that the trial court's failure to follow the proper procedures for entering the November order prejudiced defendant by obstructing his ability to obtain review of the court's decisions.
Defendant's argument is misplaced; the November order's alleged failure to state that it was denying defendant's motion to dismiss the second show-cause petition does not complicate our review. Our review is complicated by the fact that defendant appealed the November order rather than the July order, but the relief he seeks could only have been granted in an appeal from the July order (i.e., the order in which the issues were decided). In other words, even if the trial court expressly stated in the November order that it was denying defendant's motion to dismiss, that would not cure the defects with defendant's spousal-support and accounting arguments in this appeal from the November order. With respect to the trial court's alleged finding about modification, while we disagree with defendant that the trial court found defendant's spousal-support obligation to be nonmodifiable, we believe that defendant's concerns are fully alleviated by this opinion's decision to vacate the court's modification decision (assuming one was made). Accordingly, we conclude that any error in the procedure the lower court used to enter the November order was harmless because the error did not prejudice defendant.
IV. CONCLUSION
In Docket No. 364037, we vacate the attorney-fees sanction and remand for further proceedings on that issue consistent with this opinion. In Docket No. 364038, we affirm the November order.
Affirmed in part, vacated in part, and remanded for further proceedings. We do not retain jurisdiction. Neither party may tax costs pursuant to MCR 7.219, neither party having prevailed in full.