COLLEEN JAIKINS V JAMES W JAIKINS
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STATE OF MICHIGAN
COURT OF APPEALS
COLLEEN JAIKINS, a/k/a COLLEEN
MONTGOMERY,
UNPUBLISHED
August 10, 2004
Plaintiff,
v
No. 244497
Oakland Circuit Court
LC No. 91-409499-DM
JAMES W. JAIKINS,
Defendant-Appellant,
and
PLANTE & MORAN, LLP,
Appellee.
Before: Gage, P.J., and Meter and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s order awarding appellee Plante &
Moran, LLP (Plante & Moran), expert witness fees and attorney fees. We affirm in part, reverse
in part, and remand.
Defendant and plaintiff were divorced in August 1992. Plaintiff was awarded custody of
the parties’ four children and defendant was ordered to pay child support of $2,500 a month. In
1994, each party filed a petition alleging an increase in the other party’s income. In April 1995,
in response to allegations that defendant was diverting business income in order to reduce his
child support obligation to plaintiff, the trial court appointed an expert, Joseph Cunningham, a
certified public accountant (CPA), with Plante & Moran, “to examine the corporate financial
records to ascertain if, in fact, there has been a diversion of the Defendant’s income to his wife
and advise the Court accordingly.” The order further provided that “any and all costs incurred in
connection with said examination shall be equally split between Plaintiff and Defendant.”
Cunningham ultimately determined that there had been some income shifting and, by order of
the court, submitted a report of his analysis and conclusions regarding the amount of money
involved. Cunningham submitted bills for his services to both plaintiff and defendant. Plaintiff
paid the large portion of her fee obligation, but defendant did not pay anything. When defendant
continued to fail to pay his portion of Cunningham’s bill, Plante & Moran petitioned the court
and, following an evidentiary hearing, the court awarded Plante & Moran expert witness fees of
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$24,687.51, of which defendant was held responsible for $18,657.51. The court subsequently
entered another order awarding Plante & Moran attorney fees of $9,730.95, of which defendant
was held responsible for $4,865.47.
On appeal, defendant argues that the trial court erred in requiring Cunningham to
examine defendant’s financial records to determine whether there had been income diversion and
in ordering Cunningham to determine the specific amount of income that was diverted.
Defendant contends that the court’s orders constituted an improper delegation of a judicial
function.
The appointment and qualification of an expert witness is within the trial court’s
discretion. MRE 706(a); Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 454; 633 NW2d
418 (2001). Giving opinion evidence on complex matters is, by definition, the province of an
expert witness, even where the expert’s opinion “embraces an ultimate issue to be decided by the
trier of fact.” See MRE 704, MRE 703, and Zeeland Farm v JBL Enterprises, 219 Mich App
190, 196; 555 NW2d 733 (1996). Whether an expert witness engaged in a judicial function is a
question of law. We review questions of law de novo. Walters v Snyder, 239 Mich App 453,
456; 608 NW2d 97 (2000).
In this case, the trial court did not abuse its discretion in appointing Cunningham, a CPA,
to review defendant’s complex corporate financial records for the purpose of determining
whether defendant had improperly diverted his income. Rickwalt, supra at 454. In fact, the
record discloses that defendant did not challenge below an assertion that Cunningham’s
appointment was by stipulation of the parties, and defendant’s attorney advised the trial court in
1996 that “we agreed” to Cunningham’s appointment. This Court will not find an error requiring
reversal if the aggrieved party “contributed by plan or negligence” to the challenged
circumstances. Farm Credit Services v Weldon, 232 Mich App 662, 683-684; 591 NW2d 438
(1998).
We also find no merit to defendant’s claim that the trial court improperly delegated a
judicial function to Cunningham. MRE 706(a) expressly authorizes the appointment of an expert
witness, directs the court to inform the witness of his duties in writing, and requires the witness
to advise the parties of his findings. This is what occurred here. Cunningham submitted reports
and properly was permitted to give his opinion regarding the amount of defendant’s income
shifting. See MRE 704 (an expert witness may give an opinion on “an ultimate issue”). There is
no indication that the trial court improperly delegated to Cunningham the responsibility for
making the final determination regarding defendant’s support obligations or that Cunningham
offered a legal conclusion or told the trial court how to decide the case or interpret the law. Cf.
Carson Fischer Potts & Hyman v Hyman, 220 Mich App 116, 122-123; 559 NW2d 54 (1996).
In fact, after the filing of Cunningham’s reports, the parties ultimately negotiated and entered
into a stipulated final order regarding child support. For these reasons, we reject this claim of
error.
Defendant also challenges the trial court’s award of expert witness fees. This Court
reviews a trial court’s decision to award expert witness fees for an abuse of discretion. Rickwalt,
supra at 466. At the evidentiary hearing, defendant generally challenged the requested expert
witness fees and questioned certain of the charges. It is apparent from the record that the trial
court considered and weighed the relevant factors and arguments in determining the
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reasonableness of the requested fees and properly exercised its discretion; apart from the interest
portion of the trial court’s award, we find no abuse of discretion. Id. Under the circumstances of
this case, we disagree that Cunningham waived his right to fees or interest by failing to file a
petition with the court, especially considering his testimony that he did not know such a petition
was required. Moreover, we emphasize, in response to defendant’s argument that plaintiff, as
well as defendant, should have been charged with interest, the court’s finding that “Plante &
Moran has not requested interest on [p]laintiff’s unpaid balance.”
As noted, a portion of the fee award included interest on late fees. The trial court
awarded interest at the requested rate of seven percent. We agree with defendant that it was
improper for Plante & Moran to charge seven percent interest because defendant did not agree to
this rate in writing. MCL 438.31. Accordingly, we reverse the trial court’s order insofar as it
awards interest on late fees at a rate of seven percent and remand for recalculation of the interest
portion of the fee award based on the lower five percent rate prescribed by MCL 438.31.
Lastly, defendant argues that the trial court erred in awarding Plante & Moran attorney
fees incurred in its collection efforts. As a general rule, attorney fees are not recoverable “in the
absence of an exception set forth in a statute or court rule expressly authorizing such an award.”
Persichini v Beaumont Hospital, 238 Mich App 626, 639; 607 NW2d 100 (1999). However, a
trial court has “inherent authority to impose sanctions on the basis of the misconduct of a party
or an attorney,” including an award of attorney fees. Id. at 639-641. Where attorney fees are
authorized, we review the trial court’s award of attorney fees for an abuse of discretion. See
Schoensee v Bennett, 228 Mich App 305, 314-315; 577 NW2d 915 (1998).
The trial court had an ample basis on which to award attorney fees, given defendant’s
failure to pay Cunningham in a timely manner. Indeed, although the trial court’s original April
1995 appointment order provided that “any and all costs incurred in connection with
[Cunningham’s appointment] shall be equally split between Plaintiff and Defendant,” defendant
failed to pay any portion of his costs for five to seven years and required Plante & Moran to
resort to collection proceedings to recover any fees. With regard to the reasonableness of the
attorney fees awarded, the trial court specifically considered the professional standing,
experience, and skill of the attorney involved. Persichini, supra at 644. Although the trial court
declined to look at a survey offered by defendant on the issue of hourly rates, the court offered to
conduct an evidentiary hearing if defendant wanted one, but defendant declined to pursue one.
The trial court agreed with some of defendant’s challenges and reduced the requested fee by
omitting certain charges. The court considered the circumstances of the case and did not abuse
its discretion in its award of attorney fees. Id.; Schoensee, supra at 314-315. Moreover, despite
his arguments about judicial bias, defendant has not overcome the heavy presumption of judicial
impartiality. See, generally, People v Wells, 238 Mich App 383, 391; 605 NW2d 374 (1999).
Affirmed in part, reversed in part, and remanded for recalculation of interest in
accordance with this opinion. We do not retain jurisdiction.
/s/ Hilda R. Gage
/s/ Patrick M. Meter
/s/ Karen M. Fort Hood
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