RICKY LEE GATES V JEANNE MARIE GATES
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
RICKY LEE GATES,
FOR PUBLICATION
May 1, 2003
9:00 a.m.
Plaintiff-Appellee,
v
No. 236158
Branch Circuit Court
LC No. 99-005339-DM
JEANNÉ MARIE GATES,
Defendant-Appellant.
Updated Copy
June 20, 2003
Before: Schuette, P.J., and Sawyer and Wilder, JJ.
WILDER, J.
Defendant Jeanné M. Gates appeals as of right from a judgment of divorce. We affirm in
part, reverse in part, and remand.
In the judgment of divorce, the trial court divided the substantial marital estate, awarding
$741,608 to plaintiff Ricky L. Gates and $395,775 to defendant. To equalize the award, the trial
court ordered plaintiff to pay defendant $175,000, reducing plaintiff 's award to $566,608, and
increasing plaintiff 's award to $570,775. The trial court also awarded defendant $200 a week in
rehabilitative spousal support for a five-year period, as well as $5,500 in attorney fees.
Defendant first challenges the trial court's valuation of the marital property. In reviewing
a trial court's property division in a divorce case, we must first review the trial court's findings of
fact. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997), citing Sparks v
Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). "If the trial court's findings of fact are
upheld, [we] must decide whether the dispositive ruling was fair and equitable in light of those
facts. The dispositional ruling is discretionary and should be affirmed unless [we are] left with
the firm conviction that the division was inequitable." Dragoo, supra at 429-430, citing Sands v
Sands, 442 Mich 30, 34; 497 NW2d 493 (1993); see also McNamara v Horner (After Remand),
255 Mich App 667; ___NW2d ___ (2003).
The goal in distributing marital assets in a divorce proceeding is to reach an equitable
distribution of property in light of all the circumstances. McNamara v Horner, 249 Mich App
177, 188; 642 NW2d 385 (2002). The division need not be mathematically equal, but any
-1-
significant departure from congruence must be clearly explained by the trial court. Id. The trial
court's disposition of marital property is intimately related to its findings of fact. Id.
Defendant argues that the trial court's valuation of certain assets was clearly erroneous
and that the trial court's dispositional ruling was inequitable. Defendant first argues that the trial
court's failure to consider her financial position in awarding the martial home to her was error.
However, defendant's contention is refuted by the trial court's findings of fact on the record.
In awarding the marital home to defendant, the trial court stated:
Regarding the Fairfield Drive home, I have established as best I can a
value of $44,000, and I'm going to award the same to the defendant. I came up
with that number based upon both the appraisals that have been done of the
property together with the potential sale that was available a year ago. I will
address later in my decision some of the repairs that need to be done on the
marital home to either allow the plaintiff [sic] and the boys at the present time to
remain there or for her to sell it if she chooses to do so.
Our Supreme Court has held that the following factors are to be considered in the division of
property, whenever 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.
[Sparks, supra at 159-160.]
Our Supreme Court noted, however, that:
It is not desirable, or feasible, for us to establish a rigid framework for
applying the relevant factors. The trial court is given broad discretion in
fashioning its rulings and there can be no strict mathematical formulations. But,
as we have recognized before, while the division need not be equal, it must be
equitable. Just as the final division may not be equal, the factors to be considered
will not always be equal. Indeed, there will be many cases where some, or even
most, of the factors will be irrelevant. But where any of the factors delineated in
this opinion are relevant to the value of the property or to the needs of the parties,
the trial court shall make specific findings of fact regarding those factors. It is
hoped that this requirement will result in greater consistency and provide for more
effective and meaningful appellate review. [Id. at 158-159 (citations omitted).]
Contrary to defendant's assertion, a review of the record indicates that the trial court considered
the life status, earning abilities, and general principles of equity when dividing the marital
property, and equitably distributed the property based on those considerations. In its opinion, the
trial court noted the difficulty it had in equitably dividing the property: "Finding a way for Mr.
-2-
Gates to stay in business and to continuing [sic] to generate the sort of income that has supported
so well the parties and their children, while giving to Mrs. Gates a fair and certain portion of the
estate, already is remarkably difficult."
The trial court also found plaintiff at fault in the ultimate breakdown of the marriage, but
declined to award defendant's requested sixty percent of the marital estate. As an alternative, the
trial court used defendant's requested values where appropriate; required plaintiff to continue
making the lease payments on defendant's vehicle; and, to account for the monies spent by
plaintiff on his girlfriend, made an adjustment in the amount plaintiff was required to pay
defendant to equalize the property division.
As our Supreme Court noted in Sparks, supra at 162, "[t]he most effective appellate
review obviously would result from more thorough fact finding . . . ." However, in the instant
case, the trial court articulated its findings regarding four of the relevant factors, and equitably
distributed the marital property in light of all of the circumstances of the case. The trial court's
findings of fact are not clearly erroneous, and we affirm its equitable distribution of the marital
property.
Defendant next argues that the trial court erred in adjusting the value of Gates Ireland,
Inc., because of postvaluation events, in contradiction of the parties' stipulated value. Defendant
further argues that the trial court erred in refusing to adjust the value and valuation date of stock
and the Bay Harbor yacht and golf memberships. The parties stipulated that the value of Gates
Ireland, Inc., was $313,500, "assuming Acorn debt is valid." (Emphasis added.) The parties also
stipulated that the value of the Bay Harbor yacht membership was $10,000 and that the value of
the Bay Harbor golf membership was $20,800.
By the time of trial, Acorn Window Systems had filed for bankruptcy, and plaintiff was
uncertain whether Gates Ireland, Inc., would be able to collect the $366,000 debt. Plaintiff 's
one-half interest in the $366,000 debt was $183,000. Plaintiff asked the court to adjust the
stipulated $313,500 value of Gates Ireland, Inc., by the $183,000 owed by Acorn, with the
proviso that he and defendant would equally share any amount collected from Acorn. The trial
court granted plaintiff 's request and valued Gates Ireland, Inc., at $130,500 and awarded each
party one half of the one-half share of the debt currently owed Gates Ireland, Inc., by Acorn.
Defendant argues that the trial court erred in adjusting the value of Gates Ireland, Inc.,
because of postvaluation events (Acorn's bankruptcy), in contradiction of the parties' stipulated
value. This Court has held that "[s]tipulations of fact are binding, but stipulations of law are not
binding." Staff v Johnson, 242 Mich App 521, 535; 619 NW2d 57 (2000). However, the parties'
stipulation regarding the $313,500 value of Gates Ireland, Inc., specifically stated "assuming
Acorn debt is valid." At the time of trial, the Acorn debt was no longer valid because of Acorn's
bankruptcy. The trial court's reduction in value of Gates Ireland, Inc., was not clearly erroneous,
and its dispositional ruling was fair and equitable in light of the facts of the case.
Defendant also argues that the trial court erred in refusing to permit her to adjust the
value and valuation dates of stock and the Bay Harbor yacht and golf memberships. We cannot
-3-
discern to which "stock" defendant is referring; therefore, we will only discuss the yacht and golf
memberships. Essentially, defendant argues that because the trial court adjusted the value of
Gates Ireland, Inc., as requested by plaintiff, it should also adjust the valuations of other items, as
requested by her. Defendant did not request a change in valuation dates or amounts at trial. The
trial court declined to adjust the valuations of the yacht and golf memberships in its July 3, 2001,
opinion and order. It is well settled that decisions regarding the time of valuation of property in
a divorce action are matters within the discretion of the trial court. Burkey v Burkey (On
Rehearing), 189 Mich App 72, 76; 471 NW2d 631 (1991), citing Curylo v Curylo, 104 Mich
App 340, 351; 304 NW2d 575 (1981). Refusing to adjust the time of valuation of the yacht and
golf memberships was well within the trial court's discretion, and was not error.
Defendant next argues that the trial court erred in awarding plaintiff the 77 Maple Lane
residence at a value of zero. The parties stipulated that the value of the 77 Maple Lane property
was "$0 or $58,559." At trial, plaintiff testified that the 77 Maple Lane property was titled in the
parties' names, but that his brother, Toby Gates, and sister-in-law, Vicky Gates, live there.
Plaintiff explained that his brother was unable to obtain financing for the house because he had
filed for bankruptcy, so the parties financed the house in their names, with his brother providing
the down payment and making all mortgage payments on the house.
In its oral opinion, the trial court stated:
The Court is going to determine that the property located at 77 Maple
Lane was to some extent being held in trust by the parties here for Mr. Gates'
brother Toby and his wife Vicky. I will award the property to the plaintiff but
have attached no value to it as it would appear from the testimony the Court has
heard, that all of the value in that property has been achieved through the
payments of Toby and Vicky Gates.
Defendant argues that the trial court erred because it violated the statute of frauds, MCL
566.106, which precludes the creation of any interest in real property except by an appropriate
written document, and that the trial court essentially awarded the property to a third party, which
it had no authority to do. In the case defendant cites, Smela v Smela, 141 Mich App 602, 605;
367 NW2d 426 (1985), this Court held that "Michigan divorce statutes do not permit the courts
to order conveyance of property or interests in property to third parties." In the instant case,
however, the trial court did not order that the 77 Maple Lane property be conveyed to Toby and
Vicky Gates. Rather, it considered the reality of the situation surrounding ownership of the
house and who made payments on the house and awarded the property to plaintiff at a zero
value, because the $58,559 equity in the home was achieved solely through payments made by
Toby and Vicky Gates. The trial court's valuation of the 77 Maple Lane property at zero was not
clearly erroneous, and its award of the property to plaintiff was fair and equitable in light of the
facts of the case.
Defendant next argues that the trial court erred in awarding the New Century joint bank
account to her at a value of $3,000. Throughout the pendency of the proceedings, both parties
and their attorneys were confused about the value of the bank account. At the posttrial
-4-
evidentiary hearings, the parties attempted to address the bank account, but further confused the
issue. The trial court declined to adjust the award of the $3,000 joint bank account to defendant
in its July 3, 2001, opinion and order, stating "[d]efendant was awarded $3,000 for this account.
The Court now is persuaded that the actual balance at the time of trial, as [p]laintiff testified, was
a negative $11,000, which [p]laintiff subsequently reduced to $0. No adjustment will be made."
In light of the confusion surrounding the value of the joint bank account, the trial court's
valuation was not clearly erroneous. Moreover, the $3,000 joint bank account made up only
0.3% of the $1,137,383 total marital estate, and did not render the trial court's dispositional
ruling inequitable.
Defendant next argues that the trial court erred in awarding the parties' furniture to her at
a value unsupported by the record, and without consideration that the furniture was a not an
income-producing asset. Plaintiff testified that the furniture in the martial home was appraised at
a value of $34,275, but indicated that several items, totaling approximately $6,000, had not been
included in the appraisal. Defendant accepted the values on the appraisal, with the exception of
the dryer, refrigerator, and treadmill. The trial court determined "that the furnishings with the
defendant, primarily in the marital home, are worth $40,000."
Plaintiff testified that $50,000 was spent on furniture for the Bay Harbor condominium
and that the value of the parties' half-interest in the furniture was $25,000 or $25,500. Plaintiff
testified that the majority of the furniture was delivered after July 1, 1999. Therefore, the
furniture was less than a year old at the time of trial. Defendant testified that she and Arlene
Ireland purchased the furniture for the condominium for $24,280.25 and that, therefore, the
parties' one-half interest in the furniture was $12,250. The trial court found that "[t]he
furnishings in the condo, or one-half of the value of those, the Court would determine to be
$25,000, and as the condo is awarded to the defendant, so will the value of the furnishings." The
values assigned to the furniture awarded to defendant are clearly supported by the record, and are
not clearly erroneous. The trial court awarded defendant the marital home and the Bay Harbor
condominium, and thought it logical that the furniture in the residences stay at the residences,
particularly where the parties jointly owned the condominium with the Irelands.
Defendant argues that the trial court erred in failing to consider the fact that the furniture
awarded to her was not income-producing. However, nothing in the record indicates that the
trial court did not consider the fact that the furniture awarded to defendant was not incomeproducing. The judgment of divorce awarded defendant $570,775, some of which included
income-producing assets. Therefore, the trial court's award of furniture to defendant was fair and
equitable in light of the facts of the case.
Defendant next argues that when the trial court awarded her the marital home, the Bay
Harbor golf membership, and the Wildwinds property, it erred in failing to require plaintiff to
pay all debt past due on these properties consistent with the temporary order entered by the trial
court before the judgment of divorce. In its July 3, 2001, opinion and order, the trial court stated:
On June 2, 2000 [p]laintiff was ordered, at his cost[,] to have certain
repairs made or maintenance performed at the former marital home awarded to
-5-
[d]efendant or she could have such services performed and the reasonable
amounts incurred would be added to the money judgment. This Court determines
that [p]laintiff either completed the required work or took the necessary and
reasonable steps to do so. To the extent necessary to negotiate a check which
recently was revealed as having been sent to settle an insurance claim for some of
the work or consequential damages, [p]laintiff shall sign and relinquish all claims
to the check.
The trial court's determination that "plaintiff either completed the required work or took the
necessary and reasonable steps to do so" is supported by the record, and is not clearly erroneous.
Defendant next argues that the trial court erred in failing to order plaintiff to pay $26,067
due on the Bay Harbor golf membership, comprised of approximately $22,500 in principal and
interest payments, and $3,590 in club dues, due before June 2, 2000. After a review of the entire
record, it cannot be said that the trial court's determination that plaintiff is not responsible for the
amount owing on the golf membership is clearly erroneous. The trial court recognized how the
parties came to agree on the stipulated value of the golf membership and did not believe that an
adjustment was necessary.
Defendant next argues that the trial court erred in failing to order plaintiff to pay $28,537
due on the Wildwinds lot owned with Mr. Spangler. After a review of the entire record, it cannot
be said that the trial court's determination that plaintiff is not responsible for the amount owing
on the 4660 Wildwinds property is clearly erroneous. The trial court recognized defendant's ten
percent ownership interest and referenced defendant's testimony that she requested the property
and could "get along" with Spangler. The trial court did not err in determining that any expenses
associated with the property are defendant's responsibility.
After a review of the entire record, it is clear that the trial court's valuation of particular
marital assets was not clearly erroneous. The trial court's property division was fair and
equitable in light of the facts of the case, and we affirm.
Defendant next argues that the trial court erred by awarding her only rehabilitative
spousal support in the amount of $200 a week for five years. Whether to award spousal support
is in the trial court's discretion, and we review the trial court's award for an abuse of discretion.
Korth v Korth, 256 Mich App ___; ___ NW2d ___ (2003); Magee v Magee, 218 Mich App 158,
161-162; 553 NW2d 363 (1996). On appeal, we review the trial court's findings of fact
concerning spousal support for clear error. Moore v Moore, 242 Mich App 652, 654; 619 NW2d
723 (2000). The findings are presumptively correct, and the burden is on the appellant to show
clear error. Beason v Beason, 435 Mich 791, 804; 460 NW2d 207 (1990). A finding is clearly
erroneous if we are left with a definite and firm conviction that a mistake has been made.
Beason, supra at 804-805; Moore, supra at 654-655. "If the trial court's findings are not clearly
erroneous, [we] must then decide whether the dispositional ruling was fair and equitable in light
of the facts." Moore, supra at 655. The trial court's decision regarding spousal support must be
affirmed unless we are firmly convinced that it was inequitable. Korth, supra at ___, citing
Sparks, supra at 152.
-6-
Defendant first argues, on the basis of this Court's decision in Staple v Staple, 241 Mich
App 562; 616 NW2d 219 (2000), that the trial court's award of rehabilitative spousal support to
her was nonmodifiable and that the order therefore was an abuse of discretion. We agree that it
is clear, both from the trial court's opinion dated June 2, 2000, and the judgment of divorce, that
the trial court intended to limit the duration of its award of rehabilitative spousal support to five
years. However, we disagree with defendant's assertion that this limitation of the award of
spousal support renders the award nonmodifiable. In Staple, supra at 569, this Court made it
clear that "MCL 552.28 . . . will always apply to any alimony arrangement adjudicated by the
trial court when the parties are unable to reach their own agreement."
Thus, under both Staple, supra, and MCL 552.28, because the spousal-support provision
of the divorce judgment resulted from the trial court's disposition rather than agreement of the
parties, the judgment may not be interpreted to preclude defendant from seeking to continue
spousal support, or, in other words, modify the spousal support award, at the end of the five-year
rehabilitative period established by the trial court. Additionally, the precise language of the
divorce judgment does not specify that spousal support will forever cease at the end of five
years,1 but instead only states that the rehabilitative amount established by the trial court, based
on the evidence at trial, will end after five years. The trial court reaffirmed this approach in its
order dated July 3, 2001. Accordingly, we reject defendant's contention that the spousal support
awarded by the trial court was nonmodifiable.
Defendant next claims that even if the trial court's award of rehabilitative spousal support
is modifiable, the five-year limitation on the award inappropriately shifts from plaintiff to
defendant the burden of proving whether spousal support should continue beyond the five-year
period. We disagree. The modification of an award of spousal support must be based on new
facts or changed circumstances arising after the judgment of divorce. Moore, supra at 654. The
party moving for modification has the burden of showing such new facts or changed
circumstances. Ackerman v Ackerman, 197 Mich App 300, 302; 495 NW2d 173 (1992).
Nothing in MCL 552.28 supports defendant's contention that there is a statutory burden
of proof imposed that, in effect, requires the trial court to make a permanent spousal-support
award that cannot be modified unless the payer establishes the basis for modification. Defendant
also cites no case law to support this claim. Accordingly, we reaffirm the principle that either
party may seek a modification of an award of spousal support at any time, and that the party
seeking the modification, whether upward or downward, bears the burden of proving the
justification for the modified award. See Ackerman, supra at 302. Applying this principle to the
1
The judgment does provide that the award of "rehabilitative support shall cease upon the
remarriage of the defendant or the defendant's death." (Emphasis added.) Termination of
spousal support on remarriage is, of course, expressly permitted by MCL 552.13, and defendant
has not challenged this provision. Additionally, defendant has not claimed that the trial court's
order that spousal support would terminate upon her death is contrary to the trial court's equitable
authority under MCL 552.23 or that this provision renders the award of spousal support
nonmodifiable contrary to the requirements of MCL 552.28.
-7-
instant case, we conclude that at the end of the five- year rehabilitative period, defendant may
request that the trial court modify the spousal-support award to an amount justified by facts and
circumstances that exist at the time of the request, but that were not, and could not have been,
before the trial court at the time the original judgment was entered.
Defendant next argues that the amount of rehabilitative spousal support awarded by the
trial court, $200 a week for five years, was not based on the required factors, and therefore is
inequitable. The plain language of MCL 552.13 permits a trial court to award spousal support
that it determines to be "just and reasonable." Factors to be considered by the trial court in
determining whether an award of spousal support is just and reasonable include:
(1) the past relations and conduct of the parties, (2) the length of the
marriage, (3) the abilities of the parties to work, (4) the source and amount of
property awarded to the parties, (5) the parties' ages, (6) the abilities of the parties
to pay alimony, (7) the present situation of the parties, (8) the needs of the parties,
(9) the health of the parties, (10) the prior standard of living of the parties and
whether either is responsible for the support of others, (11) contributions of the
parties to the joint estate, and (12) general principles of equity. [Thames v
Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991).]
The trial court's June 2, 2000, opinion reflects that it considered all the relevant factors
when it made its determination regarding the amount and duration of spousal support. Further,
the trial court's findings of fact are supported in the record and, therefore, are not clearly
erroneous. Id.
However, the trial court's dispositional ruling, awarding defendant rehabilitative spousal
support in the amount of $200 a week for a period of five years, cannot be considered just and
reasonable in light of the facts of the case. It is well settled that spousal support is intended "to
balance the incomes and needs of the parties" so that neither party will be impoverished as a
result of the divorce. Korth, supra at ___, citing Moore, supra at 654. "[W]here both parties are
awarded substantial assets, the court, in evaluating a claim for [spousal support], should focus on
the income-earning potential of the assets and should not evaluate a party's ability to provide
self-support by including in the amount available for support the value of the assets themselves."
Hanaway v Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995).
While divorce proceedings were pending, the trial court awarded defendant $200 a week
in interim spousal support and also ordered plaintiff to make payments of $7,355 a month to
reduce the debt on the parties' real property and bank notes. The judgment of divorce awarded
plaintiff marital property and assets valued at $566,608, and awarded defendant marital property
and assets with a value of $570,775. Plaintiff was not required by the judgment of divorce,
however, to continue debt-reduction payments on properties awarded to defendant, despite the
evidence that plaintiff 's gross annual income was at least three times that of defendant's gross
income, and that three of the properties awarded to defendant required monthly debt-reduction
payments totaling $6,400. Furthermore, while the properties awarded to defendant have income-
-8-
earning potential, the income produced by these properties is insufficient to offset the monthly
debt obligations of the awarded properties.
We conclude from these facts that the $200 a week award of spousal support was
unreasonable, and that in fashioning its spousal support award, the trial court placed inordinate
weight on the value of property awarded to defendant, and insufficient weight on the disparate
incomes of the parties and the fact that the income-earning potential of the assets awarded to
defendant was insufficient to offset this disparity. As in Hanaway, we find that "[g]iven the
length of the marriage, the magnitude of the marital estate, and [plaintiff 's] capital position and
earning potential after the divorce, [defendant] should not be expected to consume her capital to
support herself." Id.
The trial court's award of rehabilitative spousal support for a period of five years was
modifiable and within its discretion, in accordance with MCL 522.28. However, the trial court's
dispositional ruling awarding defendant spousal support of $200 a week during the five-year
rehabilitative period is inequitable in light of the facts of the case. We remand for a
determination of an increased amount of spousal support.
Defendant next argues that the trial court erred in awarding only $5,500 of the $70,900 in
attorney and appraisal fees she requested. We review a trial court's decision to award attorney
fees for an abuse of discretion. Stoudemire v Stoudemire, 248 Mich App 325, 344; 639 NW2d
274 (2001). An abuse of discretion occurs only where the result "'is so palpably and grossly
violative of fact and logic that it evidences not the exercise of will but perversity of will, not the
exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or
bias.'" Fletcher v Fletcher, 447 Mich 871, 879-880; 526 NW2d 889 (1994), quoting Spalding v
Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959).
We conclude that, considering the judgment as a whole, the trial court's award of only
$5,500 in attorney fees out of the $70,900 in fees and costs requested by defendant was an abuse
of discretion and that remand is appropriate. Attorney fees in a divorce action are awarded only
as necessary to enable a party to prosecute or defend a suit. Stoudemire, supra at 344. It is well
settled that a party should not be required to invade assets to satisfy attorney fees when the party
is relying on the same assets for support. Maake v Maake, 200 Mich App 184, 189; 503 NW2d
664 (1993).
As we noted above, the amount of spousal support awarded to defendant by the trial court
is inadequate. It is also apparent from the record that even accounting for the spousal support
award of $200 a week, defendant's income is insufficient to satisfy her considerable debt of
attorney fees and costs, and that she would be required to invade the assets awarded her in the
judgment of divorce in order to pay those fees.
Because plaintiff enjoyed a comparatively substantial income advantage following the
judgment of divorce, we conclude that the trial court erred by making an award of attorney fees
that requires defendant to invade her assets. On remand, the trial court's award of attorney fees
-9-
should reflect the extent to which its award of spousal support leaves the parties with assets and
income comparable to one another. Ackerman, supra at 302; Hanaway, supra at 299.
Defendant also argues that we should remand this case for a determination of her
appellate fees and costs to be paid by plaintiff, or order a specific amount of appellate attorney
fees. Wiley v Wiley, 214 Mich App 614, 616; 543 NW2d 64 (1995). MCR 3.206(C)(1) provides
that "a party may, at any time, request that the court order the other party to pay all or part of the
attorney fees and expenses related to the action." MCR 3.206(C)(2) provides that "a party who
requests attorney fees and expenses must allege facts sufficient to show that the party is unable to
bear the expense of the action, and that the other party is able to pay." Defendant is unable to
bear the expense of this action on appeal for the same reasons we have determined that the award
of spousal support and attorney fees by the trial court is inadequate. Therefore, on remand the
trial court shall also determine an appropriate award of attorney fees for this appeal.
Defendant next argues that the trial judge should be disqualified. When reviewing a
motion to disqualify a judge, we review the trial court's findings of fact for an abuse of
discretion; however, the applicability of the facts to relevant law is reviewed de novo.
Armstrong v Ypsilanti Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001). See also Cain v
Dep't of Corrections, 451 Mich 470, 503 n 38; 548 NW2d 210 (1996).
Disqualification of the trial judge is not warranted. Our Supreme Court has held that
"[i]n order for disqualification pursuant to MCR 2.003(B)(1) to be proper, the judge must have
shown actual bias against a party or a party's attorney." Cain, supra at 512 (emphasis deleted).
In addition, "'[a]s a general rule, a trial judge is not disqualified absent a showing of actual bias
or prejudice.'" Armstrong, supra at 597, quoting People v Houston, 179 Mich App 753, 756; 446
NW2d 543 (1989).
In the instant case, defendant appears to argue that the record demonstrates actual bias by
the trial court because the trial court declined to disqualify itself as requested by defendant's
motion to disqualify, and later held the defendant in contempt for failure to comply with an order
of the court. We disagree. "[J]udicial rulings, in and of themselves, almost never constitute a
valid basis for a motion alleging bias, unless the judicial opinion displays a '"deep-seated
favoritism or antagonism that would make fair judgment impossible"' and overcomes a heavy
presumption of judicial impartiality." Armstrong, supra at 597, quoting Cain, supra at 496,
quoting Liteky v United States, 510 US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994). No
such showing of deep-seated favoritism or bias has been made here.
Defendant also contends that because plaintiff 's firm, Gates Ireland, Inc., had been
awarded a contract to renovate the Branch County Courthouse, an "appearance of impropriety"
exists, warranting the trial court's disqualification. Our Supreme Court has acknowledged that
"there may be situations in which the appearance of impropriety on the part of a judge . . . is so
strong as to rise to the level of a due process violation," Cain, supra at 512-513 n 48, and that a
showing of actual bias is not necessary where "'experience teaches that the probability of actual
bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'"
Crampton v Dep't of State, 395 Mich 347, 351; 235 NW2d 352 (1975), quoting Withrow v
-10-
Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed 2d 712 (1975). Situations that pose such a risk
include
where the judge or decisionmaker
(1) has a pecuniary interest in the outcome;
(2) "has been the target of personal abuse or criticism from the party
before him";
(3) is "enmeshed in [other] matters involving petitioner . . ."; or
(4) might have prejudged the case because of prior participation as an
accuser, investigator, fact finder or initial decisionmaker. [Crampton, supra at
351, quoting Withrow, supra at 47 n 15 and Johnson v Mississippi, 403 US 212,
215; 91 S Ct 1778; 29 L Ed 2d 423 (1971).]
None of the four exceptions to the actual-bias requirement is present in the instant case, and,
accordingly, there is no appearance of impropriety warranting reversal of the trial court's order
denying defendant's motion to disqualify.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Schuette, P.J., concurred.
/s/ Kurtis T. Wilder
/s/ Bill Schuette
-11-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.