Opinion
No. 349037
09-17-2020
VIJAYALAKSHMI THAMILSELVAN, Plaintiff-Appellee, v. SIVAGNANAM THAMILSELVAN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-860600-DM Before: STEPHENS, P.J., and O'BRIEN and REDFORD, JJ. PER CURIAM.
Defendant appeals as of right the parties' judgment of divorce (JOD). We affirm.
I. BACKGROUND
In 1997, Indian citizens, Vijayalakshmi Thamilselvan (plaintiff) and Sivagnanam Thamilselvan (defendant), were married in India, through an arranged marriage. Three weeks after their wedding, defendant came to Florida for work and plaintiff followed in 1998. Two years later, in 2000, the parties moved to Michigan with their one-month old daughter. In 2006, they purchased a home in Farmington Hills. Some 11 years later, the marriage began to deteriorate, and in December 2017, plaintiff and the parties' then 17-year-old daughter left the marital home with the assistance of their daughter's school counselor. In January 2018, defendant filed a complaint for divorce in Oakland County and a motion for the return of the parties' minor child to the marital home, because he believed that if the minor child was returned home, plaintiff would follow and the parties could be reconciled. When neither plaintiff nor their daughter returned, defendant dismissed his complaint. In February 2018, plaintiff reinstituted the action by filing her own complaint for divorce alleging, among other issues, abuse in the home. Defendant then turned to the courts in India, where the parties had married, for relief. Defendant petitioned the Family Court in India for restoration of his conjugal rights, as a form of reconciliation or mediation with plaintiff. He also petitioned the High Court in Madras, India for an anti-suit injunction to prevent plaintiff from continuing her action in Oakland County. Defendant then, filed an answer to plaintiff's complaint wherein he denied any abuse in the home. Plaintiff retained counsel in India to respond to defendant's petition that an anti-suit injunction issue, but after multiple hearings, the injunction became a final order on July 12, 2018. Approximately two weeks later, defendant moved the Oakland County court to amend his answer to plaintiff's complaint for the reason that his attorney erroneously admitted to allegations that the parties were residents of the state of Michigan immediately before the complaint was filed. That amendment was denied.
Defendant filed the first of two motions to dismiss in November 2018. Defendant argued under MCR 2.116(C)(10) that India was the proper jurisdiction over the parties' divorce where the parties were Indian citizens, and that the Indian anti-suit injunction was enforceable in Michigan under principles of comity to dismiss plaintiff's complaint. The trial court denied the motion finding that Michigan had jurisdiction over the parties, and that it possessed discretion to overlook the injunction when its enforcement would contravene plaintiff's legal right to a divorce. Defendant was denied interlocutory review of that order.
Defendant filed his second motion to dismiss mid-trial in February 2019. Defendant argued under MCR 2.116(C)(4) that the Oakland County court lacked subject matter over the parties' divorce because the parties were Indian citizens and plaintiff had not resided in Michigan for 180 days immediately preceding the complaint filing where plaintiff and defendant were in India for one month. The court treated this motion as an untimely motion for reconsideration of defendant's first motion to dismiss and denied the motion.
An opinion and order following the trial was issued in April 2019 granting plaintiff's complaint for divorce, dividing the parties' property, and awarding plaintiff attorney fees. Defendant was denied appellate review of that order because it was not yet a final order. Thereafter, defendant filed motions for relief from judgment and for reconsideration that were also denied. The JOD issued afterward on May 23, 2019, giving rise to the instant appeal.
On appeal, defendant argues that the court abused its discretion when it denied his request for a continuance on the last day of trial to present evidence of the Indian properties' value. Defendant also challenges the trial court's denial of both of his motions for summary disposition and his motion for relief from judgment.
II. SUMMARY DISPOSITION MOTIONS
A. SUBJECT MATTER JURISDICTION
Defendant argues that the trial court erred when it found the parties satisfied the jurisdictional residency requirements to file a complaint for divorce and denied his motion for summary disposition under MCR 2.116(C)(4). We disagree.
1. STANDARD OF REVIEW
"Jurisdictional questions under MCR 2.116(C)(4) are questions of law that are ... reviewed de novo." Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 205; 631 NW2d 733 (2001). "In considering a motion challenging jurisdiction under MCR 2.116(C)(4), a court must determine whether the affidavits, together with the pleadings, depositions, admissions, and documentary evidence, demonstrate that the court lacks subject matter jurisdiction." CC Mid West, Inc v McDougal, 470 Mich 878, 878; 683 NW2d 142 (2004).
Whether a party has satisfied the residency requirement in MCL 552.9(1), presents a question of fact. Berger v Berger, 277 Mich App 700, 702; 747 NW2d 336 (2008). "Findings of fact by the trial court may not be set aside unless clearly erroneous." MCR 2.613(C). In a divorce action, "[a] finding is clearly erroneous if, after a review of the entire record, the reviewing court is left with a definite and firm conviction that a mistake has been made." McNamara v Horner (After Remand), 255 Mich App 667, 669; 662 NW2d 436 (2003). "Special deference is afforded to a trial court's factual findings that are based on witness credibility." Hodge v Parks, 303 Mich App 552, 555; 844 NW2d 189 (2014).
2. ANALYSIS
MCL 552.9(1) provides, in part, that:
A judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint.Notably, the statute's language only requires that one party, either the complainant or defendant, meet the residency requirement. "Residence in Michigan is defined as a place of abode accompanied with the intention to remain." Leader v Leader, 73 Mich App 276, 280; 251 NW2d 288 (1977). "Domicile and residence in Michigan are synonymous terms." Id. "For many purposes, residence must be considered in light of a person's intent. Presence, abode, property ownership and other facts are often considered, yet intent is the key factor." Id. at 281 (internal citation omitted).
Subsection (2) applies when the defendant is a citizen of a different country, the parties have minor children, and the children are at risk of being taken out of the country. The subsection is not implicated here where the parties' only child had reached the age of majority at the time of the trial for divorce.
We acknowledge plaintiff's position that defendant submitted to the jurisdiction of the Oakland County court twice, once in his complaint for divorce and again in his answer to plaintiff's complaint for divorce. Further, that at the hearing on defendant's MCR 2.116(C)(10) motion for summary disposition, defendant's counsel stated, "I'm not contesting the jurisdiction of the court". Even so, because the jurisdiction of the court is purely statutory in accord with MCL 552.9, it cannot be conferred on the court by consent of the parties. Stamadianos v Stamadianos, 425 Mich 1, 8; 385 NW2d 604 (1986). "The court must make its own determination regarding the existence of a statutory basis for jurisdiction." In re Hatcher, 443 Mich 426, 433; 505 NW2d 834 (1993), overruled on other grounds In re Ferranti, 504 Mich 1; 934 NW2d 610 (2019). "[A] court is continually obliged to question sua sponte its own jurisdiction over a person, the subject matter of an action, or the limits of the relief it may afford[.]" Yee, 251 Mich App at 399.
Defendant first argues that the parties had not resided in Michigan for 180 days immediately preceding plaintiff's February 12, 2018 filing of the complaint for divorce because the parties had visited India for one-month, from August 1, 2017 to September 1, 2017, thereby interrupting the 180-day residency requirement. This argument is without merit. In Berger v Berger, this Court held that MCL 552.9(1) did not require a plaintiff's continuing physical presence. 277 Mich App at 703. The Court held that once the plaintiff had shown an established residency and an intent to remain, a temporary absence from the jurisdiction had not divested the court of jurisdiction. Id. On another occasion, this Court held that the plaintiff had satisfied the 180-day state residency requirement of MCL 552.9(1) despite a four-month absence from Michigan where the plaintiff had shown an intent that her residence remained in Michigan. Leader, 73 Mich App at 280.
There is ample record support for a determination that the residency requirements were met here. There were several undisputed facts that support such a finding:
1. The parties had lived in Michigan for over 18 years, having moved here from Florida in August 2000, with their one-month old daughter.
2. The parties obtained continuous employment in Michigan from 2000 forward.
3. The parties' daughter was born in the United States and educated in Michigan.
4. The parties purchased the marital home in Farmington Hills in 2006 and also purchased an investment property in Detroit.
5. They paid Michigan resident income taxes each year.
The parties testified differently concerning their intent to reside and remain in Michigan. Plaintiff testified that Michigan was her home, while defendant testified that India was the parties' home. The court found the plainitff's testimony credible and we defer to that credibility determination. Hodge, 303 Mich App at 555. The defendant did offer the court documentary evidence to support his position that neither party was a Michigan resident. He offered banking and passport renewal documents as well as the evidence concerning the purchase of residential property in India in Choolaimedu. The plainitff testified to physical abuse and stated that the defendant controlled the family finances and that they never lived in the Indian residence. Plaintiff also testified that it was defendant who completed the passport renewal document and drove plaintiff to the notary and told her where to sign. Finally, plaintiff testified unequivocally that it was her intent to only visit India and not to reside there.
Defendant asks us to disregard the parties' long tenure in Michigan citing Leader which noted, that "physical presence for a longer period of time is no longer the key factor it once was," 73 Mich App 281. Relying on Leader, defendant argues that a "mere change of residence to Michigan, although continued for a long time, does not effect a change of domicile." He further argues that in accord with Leader, "a domicile, once shown to exist, is presumed to continue until the contrary is shown." First, the trial court had much more than mere long-term presence in the state on which to rely. The purchase of property, payment of taxes, education of the minor child, and employment were also considerations in this case. Further, the court found that Michigan was the domicile and, therefore, it would have required proofs of abandonment of that domicile for the defendant to prevail. Lastly, we note that since domicile of only one party suffices for jurisdiction, once the court found that the plainitff was credible regarding her intent during the sojourn to India, the court had evidentiary support for its jurisdictional determination
We reject defendant's last jurisdictional argument that since the parties' marriage was solemnized under the Hindu marriage act of 1955, the Indian court had exclusive jurisdiction over any dissolution. The cited reference to the act presented by the defendant addresses "petitions under this act," This defendant did not petition for dissolution in India. To the contrary, he petitioned to restore conjugal rights and to enjoin any dissolution action.
B. COMITY
Defendant argues that the trial court erred in finding that the Indian anti-suit injunction was not entitled to comity and in denying his motion for summary disposition under MCR 2.116(C)(10). We disagree.
1. STANDARD OF REVIEW
"This Court reviews de novo the grant or denial of a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law." Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). [Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999)].
"Both the trial court's determination that it had subject-matter jurisdiction and that the foreign judgment was appropriately enforced based on the principle of comity are reviewed de novo by this Court." Gaudreau v Kelly, 298 Mich App 148, 151; 826 NW2d 164 (2012). "Findings of fact by the trial court may not be set aside unless clearly erroneous." MCR 2.613(C). "In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." Id. "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Walters v Snyder, 239 Mich App 453, 456; 608 NW2d 97 (2000).
2. ANALYSIS
Comity is defined as the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other
persons who are under the protection of its laws. [Bang v Park, 116 Mich App 34, 39; 321 NW2d 831 (1982) (citation omitted)]."The rule of comity is not allowed to operate when it will contravene the rights of a citizen of the State where the action is brought." Keehn v Charles J Rogers, Inc, 311 Mich 416, 425; 18 NW2d 877 (1945). It is a discretionary doctrine. Hare v Starr Commonwealth Corp, 291 Mich App 206, 221; 813 NW2d 752 (2011). "United States courts are not required by Federal law to give full force and effect to a judgment granted in another country, but foreign judgments may be recognized under the doctrine of comity, as indicated in Growe, [infra]." Bang, 116 Mich App at 39. In Growe v Growe, 2 Mich App 25, 33; 138 NW2d 537 (1965), "this Court indicated that the factors to be considered in determining whether a foreign judgment should be accorded comity were whether or not the basic rudiments of due process were followed, whether the parties were present in court, [and] whether a hearing on the merits was held." Dart v Dart, 224 Mich App 146, 154-155; 568 NW2d 353 (1997).
Whether the parties were afforded fundamental due process in the Indian anti-suit injunction proceedings is not disputed. However, the trial court here rightly asserted its discretion of whether or not to enforce that injunction because enforcement would infringe upon plaintiff's legal right to obtain a divorce in the state of Michigan. In State Bar v Cramer, our Supreme Court discussed this state's reason for adopting the no-fault divorce law, MCL 552.6: "that this revision in the divorce law was made in the belief that when the marriage relationship has terminated, granting of the divorce should flow as an inalienable legal right." Cramer, 399 Mich 116, 135; 249 NW2d 1 (1976) (internal citations omitted). "Since that time, it has been the law that a marriage will only be recognized if two parties agree, but a divorce will be granted upon the request of only one of the original marrying parties, i.e., even over the objection of one of the marrying parties." Draggoo v Draggoo, 223 Mich App 415, 424; 566 NW2d 642 (1997). Dismissing plaintiff's complaint for divorce would deprive her of her right to obtain a no-fault divorce. Defendant's comparison of his case to Dart v Dart is unavailing. In Dart, the wife filed for divorce in Michigan four days after the husband had filed for divorce in England. 224 Mich App at 148. After the English court entered a judgment of divorce, the husband moved for a stay of the Michigan proceedings and enforcement of the English order under the doctrine of comity. Id. at 149-150. This Court reversed the trial court and granted the husband relief where it found the requirements of due process were complied with in the English court proceedings. Id. at 151-155. Defendant's case is not like Dart. A divorce proceeding was never filed in India and the parties were not granted a divorce in India thus, there is no final judgment of divorce to enforce.
Viewing the evidence in the light most favorable to plaintiff, the trial court did not err in denying defendant's motion for summary disposition under MCR 2.116(C)(10).
III. REQUEST FOR CONTINUANCE
Defendant argues that the trial court abused its discretion when it denied his request for a continuance to present evidence of the value of the Indian properties. We disagree.
A. STANDARD OF REVIEW
"This Court reviews for an abuse of discretion the trial court's decision whether to adjourn or continue a proceeding." Johnson v Johnson, 329 Mich App 110, 118; 940 NW2d 807 (2019). "A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Foster v Foster, ___ Mich ___; ___ NW2d ___ (2020).
B. ANALYSIS
Trial adjournments are governed by MCR 2.503. Under the rule, "a request for an adjournment must be by motion or stipulation made in writing or orally in open court and is based on good cause." MCR 2.503(B)(1). "A motion to adjourn a proceeding because of the unavailability of . . . evidence must be made as soon as possible after ascertaining the facts." MCR 2.503(C)(1). The adjournment may be granted "only if the court finds that the evidence is material and that diligent efforts have been made to produce the . . . evidence." MCR 2.503(C)(2).
The record reflects that defendant did not request a continuance:
Defendant: I thought I can get here next hearing so I didn't prepare for that so I don't remember, so you -- you gave me 24 hours to respond so if I remember anything, I will submit it.This record rather demonstrates that defendant was unprepared for closing argument and could not remember everything he wanted to argue to the court. Further, he expressed satisfaction with the court's offer to allow him to supplement his argument after the trial. After this colloquy, the court admitted defendant's deeds of sale for the Indian properties, which defendant asserted represented the value of the properties. Thereafter, defendant filed two voluminous addendums to the evidence. After trial, defendant found what he considered better valuation evidence of the Indian properties. However, defendant fails to show that this information was unavailable to him before or during the trial, or that he diligently sought, but could not find the evidence. MCR 2.503(C).
Court: Yes, but it can't -- the proofs are closed so you can't submit anymore evidence or witnesses. But you can -- you have 24 hours to submit anything supplemental in argument if you would like.
Defendant: Mmhmm.
On appeal, defendant now asserts he was disadvantaged by having to represent himself and that the court's animus toward him affected his presentation of evidence. Defendant's counsel was allowed to withdraw from representing defendant approximately 11 days before trial was scheduled to begin. Defendant argues that this event, the complexities of his case, and the court having frozen his assets, forced him to represent himself at trial.
There were four defense counsel in this case. Defendant asserts that although the fourth attorney did not file a motion to withdraw until January 31, eight days before the scheduled trial date, he had wanted to discharge her as early as the previous October. We note that the withdrawal of counsel would not have absolutely entitled defendant to a continuance. Bye v Ferguson, 138 Mich App 196, 207; 360 NW2d 175 (1984). In any case, he did not ask for an adjournment when counsel's motion to withdraw was granted and the trial date was moved from February 8th until February 11th. Additionally, the record reflects the trial court indicated that while some of defendant's funds were frozen, funds would be released to pay for a fifth attorney. Defendant did not request those funds and exercised his right to represent himself.
Defendant fails to support his additional contention, that the court believed his multiple motions were annoying and harassing, with citations to the record. This Court will not search for authority to support plaintiff's position. Guardiola v Oakwood Hospital, 200 Mich App 524, 536; 504 NW2d 701 (1993).
IV. MOTION FOR RELIEF FROM JUDGMENT
Defendant argues that he is entitled to relief from the trial court's April 12, 2019 Opinion and Order, concerning the division of property and the allocation of attorney fees. We disagree.
A. STANDARD OF REVIEW
"A trial court's decision on a motion for relief from judgment is reviewed for an abuse of discretion." Yee v Shiawassee Co Bd of Com'rs, 251 Mich App 379, 404; 651 NW2d 756 (2002). "A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion." Edry v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010). "A court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." Foster, ___ Mich at ___.
B. ANALYSIS
Relief from a judgment or order is governed by MCR 2.612. The grounds for relief are listed in subsection (C)(1):
(a) Mistake, inadvertence, surprise, or excusable neglect.Defendant argues he was entitled to relief under (C)(1)(b) and (C)(1)(f).
(b) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment. [MCR 2.612(C)(1)].
MCR 2.611(B) provides that "[a] motion for a new trial made under this rule or a motion to alter or amend a judgment must be filed and served within 21 days after entry of the judgment."
Under MCR 2.612(C)(1)(b), defendant claimed that discovery of the property values from the Indian government was newly discovered evidence that would have rebutted plaintiff's valuation evidence. In his motion for relief from judgment, defendant offered for each Indian property, a "Declaration of Value of the Property" purportedly from the Tamil Nadu, India Government Guideline Value. The Declaration of Value for the Choolaimedu property was 4,869,158 rupees, which defendant represented was approximately $70,126.02, based on the May 2019 rupees to dollar exchange rate, and the Siruseri property was valued at 1,778,850.00 rupees, which defendant represented was approximately $25,619.15, again based on the then-current exchange rate. Taken together, defendant's valuation of the Indian properties was approximately $96,000. Plaintiff relied on an Indian real estate website called Magic Bricks to calculate her approximate value of the Indian properties at $271,000. The difference between the two valuations was approximately $175,000.
There are four requirements that must be met for newly discovered evidence to support a motion for postjudgment relief: (1) the evidence, not simply its materiality, must be newly discovered, (2) the evidence must not be merely cumulative, (3) the newly discovered evidence must be such that it is likely to change the result, and (4) the party moving for relief from judgment must be found to have not been able to produce the evidence with reasonable diligence. [S Macomb Disposal Auth v Am Ins Co, 243 Mich App 647, 655; 625 NW2d 40 (2000)].
Defendant fails to show that his Indian valuation evidence was newly discovered and that he was entitled to relief under MCR 2.612(C)(1)(b). In his motion for relief from judgment, defendant did not claim that the Indian government's "Declaration of Value of the Property" was unavailable to him at any point during or before the trial. Neither did he claim that he sought valuation evidence different from or better than the deeds of sale, and found none. Rather, he admitted that after he requested the information from the Indian government, he received it one week later. This fact negates that defendant, with due diligence, could not have discovered the evidence.
Defendant blamed his failure to introduce additional valuation evidence on his attorney withdrawing just before trial. Prior to withdrawal, counsel submitted a trial brief on defendant's behalf and after, defendant supplemented that trial brief twice with over 400 pages of evidence. Defendant claims something akin to surprise regarding the need for evidence regarding the then-present value of the foreign properties. It is for this reason, he argues, that he only submitted the deed. However on January 24th, prior to his counsel filing the motion to withdraw and prior to his supplementation of the pre-trial brief of counsel, plaintiff submitted her trial brief with an exhibit listing the real estate included in the marital estate and its value. Plaintiff listed the value of the Indian properties as $285,000. The trial court did not abuse its discretion in denying relief from judgment under MCR 2.116(C)(1) where defendant's valuation evidence from the Indian government was not newly discovered evidence which by due diligence he was unable to discover.
The trial court otherwise did not abuse its discretion in accepting plaintiff's valuation evidence of the Indian properties. Plaintiff not only offered the Magic Bricks' exhibit, but her own testimony as to the properties' value. "A lay witness will be permitted to testify as to the value of land if he has seen the land and has some knowledge of the value of other lands in the immediate vicinity." City of Grand Rapids v HR Terryberry Co, 122 Mich App 750, 753; 333 NW2d 123 (1983). MRE 602 provides that a lay witness may testify to matters that the witness has personal knowledge of and that "[e]vidence to prove personal knowledge may, but need not, consist of the witness' own testimony." MRE 701 further provides that,
[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.Plaintiff testified from personal knowledge that the Choolaimedu property consisted of a 1,253 square foot home and that it was located in a desirable part of India with other homes that were really high in property value. She testified that the Siruseri property was a 1,062 square foot apartment. Plaintiff inputted the information she knew about the properties into the Indian real estate website, Magic Bricks. Plaintiff testified that her sisters, who still lived in India, told her the site was reliable. Magic Bricks valued the Choolaimedu home at $207,627 and the Siruseri apartment at $64,000 based on the average price of Indian real estate per square foot, translated into U.S. dollars. Plaintiff believed the estimate for the Choolaimedu property was low given her knowledge of the neighborhood. Defendant objected at trial to the use of the Magic Bricks' website as unreliable and in his motion for relief from judgment, he argued that testimony as to the reliability of the website was hearsay because it came from plaintiff's sisters who did not testify at trial. The court admitted the evidence under MRE 803(17) which excepts from the rule against hearsay, "[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations." The court's decision was not an abuse of discretion. Plaintiff's valuation testimony was relative to a fact at issue i.e., the value of the Indian property, and properly admitted based on her personal knowledge of the properties, the area where the properties were situated, and her trips to the properties' locations. The Magic Bricks' valuation was properly admitted under MRE 803(17) as market quotations relied on by the public or persons in particular occupations where plaintiff testified that she conversed with relators and family members living in India concerning the properties' valuation and use of the website.
Defendant also argued that MCR 2.612(C)(1)(f) applied because it allowed the court to consider: 1) the fact that defendant did not have an attorney nor was given ample time to retain an attorney, and 2) its allocation of nearly all the attorney fees to him.
In order for relief to be granted under MCR 2.116(C)(1)(f), the following three requirements must be fulfilled: (1) the reason for setting aside the judgment must not fall under subsections a through e, (2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and (3) extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice. [Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999)].
In the trial court and again on appeal, defendant failed to address any of the Heugel requirements and consequently, his entitlement to relief.
Nevertheless, even if defendant had applied Heugel, he would not be entitled to relief under (C)(1)(f). Defendant's reasons for relief concerning counsel's withdrawal and attorney fees met the first Heugel requirement because they did not otherwise fall under subsections a through e, however they fail to meet the second and third Heugel requirements.
As for the second requirement, plaintiff's substantial rights would be detrimentally affected if the judgment as to the court's property distribution and attorney fees were set aside because such relief would reward defendant for his lack of due diligence and improper conduct, and financially burden plaintiff. Attorney fees are not recoverable by right, but are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(D). Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). An exception is when "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). Defendant's motion for relief challenged the court's order that he pay attorney fees to plaintiff's attorney and plaintiff's appellate attorney.
The court ordered defendant to pay $31,250 in attorney fees to plaintiff's attorney. Defendant argued that when he was ordered to pay this amount from his share of the marital estate, a large disparity then existed between the parties' martial shares of the estate, with plaintiff being awarded $375,000 and defendant $339,270. "The goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of property in light of all the circumstances." Berger v Berger, 277 Mich App 700, 716-717; 747 NW2d 336 (2008). "The trial court need not divide the marital estate into mathematically equal portions, but any significant departure from congruence must be clearly explained." Id. at 717. The court explained that it was dividing the amount of the marital assets that defendant spent on attorney fees in half, and awarded that amount to plaintiff for her attorney fees. MCR 3.206(D) authorizes the court to order a party to pay attorney fees and expenses for the other party where they "were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, or engaged in discovery practices in violation of these rules." to equalize the amount of marital estate assets spent on attorney fees. The court found, and defendant did not dispute, that defendant used $62,500 of marital assets to pay his attorney fees during this case. Defendant failed to include this amount in his calculations of his share of the martial estate. Dividing the amount that defendant improperly used on attorney fees in half and distributing that portion to plaintiff was equitable.
The court also ordered that defendant pay the attorney fees for plaintiff's appellate attorney Susan Lichterman because his appeal challenging the jurisdiction of the court was unnecessary and frivolous. "A claim is frivolous when (1) the party's primary purpose was to harass, embarrass, or injure the prevailing party, or (2) the party had no reasonable basis upon which to believe the underlying facts were true, or (3) the party's position was devoid of arguable legal merit." Cvengros v Farm Bureau Ins, 216 Mich App 261, 266-267; 548 NW2d 698 (1996) citing MCL 600.2591(3)(a). Defendant twice admitted jurisdiction was proper with the Oakland County court in his own complaint and in his answer to plaintiff's complaint. Defendant further acknowledged having lived in the United States for over 20 years. Despite those admissions, defendant pursued an appeal of jurisdiction. Disingenuously, defendant claimed that he had not read either pleading. The trial court found that testimony incredible. Lichterman testified that she reduced her bill for attorney fees considerably. The bill was originally $22,000 and she discounted it by $10,000. Plaintiff paid a $7,500 retainer. It was not unreasonable for the court to order defendant to pay approximately $5,000 in appellate attorney fees for defendant pursing a frivolous action.
Defendant also claimed he was unable to bear the expense of an additional amount of $9,820 in attorney fees because his salary was less than plaintiff's and all the debt was allocated to him. Plaintiff testified that she earned approximately $55,000 annually. Defendant testified he earned $30,000.
In determining the $9,820 amount the trial court explained that it
painstakingly went through each billable item to determine what costs were clearly unnecessarily incurred by Wife due to Husband's actions. The Court considered costs such as dealing with the futile appeal, the wrongful legal action being pursued in India, multiple motions to compel compliance with orders, repeated attempts by Husband to get this matter dismissed, and motions to show cause to be wrongfully incurred by Wife.Defendant did not contest the court's calculation of $9,820 and the court sufficiently justified the award. Therefore, the court did not abuse its discretion in awarding the additional amount to plaintiff.
Addressing the third requirement in Heugel, defendant's circumstances did not rise to the level of extraordinary. "The caselaw construing MCR 2.612(C)(1)(f) contemplates that extraordinary circumstances warranting relief from a judgment generally arise when the judgment was obtained by the improper conduct of a party." Rose v Rose, 289 Mich App 45, 62; 795 NW2d 611 (2010) citing Heugel, 237 Mich App at 479. There has been no claim of misconduct by plaintiff to warrant relief from judgment. Further, while an attorney's abandonment of, or withdrawal from, a client's case may be considered an extraordinary circumstance under MCR 2.612(C)(1)(f), that has generally only been found to be the case where the defendant had no notice of his counsel's withdraw and was not given ample time to find other counsel. See Pascoe v Sova, 209 Mich App 297; 530 NW2d 781 (1995), and Bye v Ferguson, 138 Mich App 196; 360 NW2d 175 (1984). In this case, 1) defendant expressed a desire to retain new counsel months before trial but did not, 2) defendant acted in propria persona throughout these proceedings by filing documents with the court on his own and without his counsel's knowledge, 3) counsel filed a motion to withdraw over a week before trial, and 4) counsel filed a trial brief on defendant's behalf before trial. Additionally, as noted, the court's allocation of attorney fees was not an extraordinary circumstance, but reasonable based on defendant's improper conduct throughout the case. The court strived to achieve an equitable distribution of the marital estate.
See also Wykoff v Winisky, 9 Mich App 662, 664; 158 NW2d 55 (1968), where the trial court allowed defense counsel to withdraw on the day of trial and denied the defendants' request for a continuance, basically requiring that they represent themselves during trial. Id. at 666. This Court affirmed the trial court's decision, reasoning that had the defendants acted with reasonable diligence, they had ample time to obtain counsel in whom they had confidence. Id. at 668-669. This Court further noted that at a proceeding held approximately four months before trial, one of the defendants informed the court he wished to represent himself. Id. at 667-668.
In sum, defendant was not entitled to relief from judgment 1) where the Indian government valuation evidence he offered after trial was not newly discovered and, 2) defendant failed to show: a) that setting aside the judgment would not detrimentally affect plaintiff's rights and b) counsel's withdraw or the court's award of attorney fees were extraordinary circumstances.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien
/s/ James Robert Redford