KRYSTAL DINU V MICHAEL DINU
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STATE OF MICHIGAN
COURT OF APPEALS
KRYSTAL DINU,
UNPUBLISHED
August 10, 2004
Plaintiff-Appellant,
v
No. 253014
Oakland Circuit Court
LC No. 2003-675418-DM
MICHAEL DINU,
Defendant-Appellee.
Before: Cavanagh, P.J., and Jansen and Saad, JJ.
PER CURIAM.
Following a bench trial, the trial court entered a judgment of divorce that awarded the
parties joint legal and physical custody of the parties’ two children, with plaintiff receiving
primary physical custody. Plaintiff subsequently filed a motion for a new trial challenging the
adequacy of the trial court’s findings and conclusions with regard to custody, and also
challenging other aspects of the judgment. After making additional findings and conclusions, the
trial court issued an amended judgment of divorce. Plaintiff now appeals as of right. We affirm.
Before trial, the friend of the court (FOC) advised the trial court that the parties had
reached an agreement concerning custody, specifically, that “[t]he parties would like to share
joint legal custody of their two minor children with the mother having the physical custody and
the father having reasonable and liberal rights of parenting time.” At the trial, plaintiff’s counsel
advised the court, “There has basically been agreement as to the children. Mother to have
physical custody, joint legal custody.” At the conclusion of the hearing, the trial court stated:
The Court will adopt the Oakland County Friend of the Court
recommendation of May 15th, 2003, indicating that the parties would like to share
joint legal custody of their two minor children. But I’m going to change it to
some extent. I’m going to give joint legal and physical custody to these parties.
The children can have—the mother can be the primary physical custodian of the
child [sic].
The court did not address whether there was an established custodial environment, nor did it
discuss any of the statutory best interest factors, MCL 722.23(a) – (l).
In her motion for a new trial, plaintiff argued that the trial court’s findings and
conclusions with regard to custody were deficient. The court agreed and thereafter issued an
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opinion and order in which it made specific findings and conclusions concerning the existence of
an established custodial environment and the best interest factors.
On appeal, plaintiff argues that the trial court erroneously issued its new findings and
conclusions in reliance on the testimony presented at trial, and instead should have conducted a
new trial or evidentiary hearing. We disagree.
Generally, the trial court must consider and explicitly state its findings and conclusions
regarding the existence of an established custodial environment and each of the best interest
factors, and the failure to do so is usually requires reversal. Foskett v Foskett, 247 Mich App 1,
9; 634 NW2d 363 (2001); Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000). Here,
however, on plaintiff’s motion, the trial court issued additional findings of fact and conclusions
of law, and issued an amended judgment, thereby curing its earlier deficiency in this regard. The
trial court’s action is consistent with MCR 2.611(A)(2), which provides:
On a motion for new trial in an action tried without a jury, the court may
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(c) amend findings of fact and conclusions of law or
(d) make new findings and conclusions and direct the entry of a new
judgment.
Similarly, MCR 2.517(B) states, in part:
On motion of a party made within 21 days after entry of the judgment, the
court may amend its findings or make additional findings, and may amend the
judgment accordingly.
Plaintiff cites no authority for her position that the trial court was required to hold a new trial or
evidentiary hearing to correct its failure initially to make appropriate findings and conclusions.
Further, to the extent that plaintiff challenges the adequacy of the trial court’s findings in
the argument section of her brief, that issue is not properly before us because it is not included in
the statement of the issues presented. MCR 7.212(C)(5); Persinger v Holst, 248 Mich App 499,
507 n 2; 639 NW2d 594 (2001). Additionally, the issue is inadequately briefed.
It is not enough for an appellant in his brief simply to announce a position
or assert an error and then leave it up to this Court to discover and rationalize the
basis for his claims, or unravel and elaborate for him his arguments, and then
search for authority either to sustain or reject his position. The appellant himself
must first adequately prime the pump; only then does the appellate well begin to
flow. [Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998) quoting
Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).]
Plaintiff’s failure to properly address the merits of her assertion of error, as discussed
above, constitutes abandonment of the issue. See Yee v Shiawassee County Bd of Comm’rs, 251
Mich App 379, 406; 651 NW2d 756 (2002).
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Plaintiff next argues that reversal is required because the trial court erred in refusing to
allow her to make an “offer of proof” concerning her proposed questions to the children.1 We
conclude that reversal is not required because the court did not abuse its discretion. See Orlich v
Buxton, 22 Mich App 96, 100; 177 NW2d 184 (1970).
The discussion on the record at the outset of the hearing on November 7, 2003, indicates
that there was some confusion regarding the scope of the hearing as it pertained to custody.
Plaintiff’s counsel anticipated that the court would interview the children in conjunction with its
efforts to remedy its earlier failure to make findings concerning a custodial environment and the
best interests of the children. Accordingly, plaintiff’s counsel submitted “proposed questions.”
After the trial court determined that it would issue findings of fact and conclusions of law based
on the existing record, plaintiff’s counsel sought to make an “offer of proof” concerning the
proposed questions to the children. Plaintiff’s counsel then began referring to incidents that
occurred before trial. Defense counsel objected, and the trial court sustained the objection. The
court refused to allow plaintiff to make an offer of proof concerning the matters that occurred
before trial and explained, “[T]here’s no offer of proof, because I’m basing it on what the trial
transcript and the trial proofs were, not on what you’re going to tell me now.”
On appeal, plaintiff asserts that the trial court’s refusal to allow an offer of proof requires
reversal absent a compelling reason for the denial on the record. In this regard, plaintiff’s
reliance on Hileman v Indreica, 385 Mich 1; 187 NW2d 411 (1971), is misplaced. The purpose
of an offer of proof is to provide the trial court with an adequate basis on which to make its
ruling and to give a reviewing court the information to evaluate the claim of error. Orlich, supra,
100. That purpose would have been served in Hileman, supra, inasmuch as the proposed offer of
proof concerned evidence that a party sought to use at trial. Here, however, the “offer of proof”
concerned proposed questions for the children. But the trial had already concluded and the
“offer or proof” occurred in the context of a proceeding where the court was merely required to
make additional findings and conclusions based on the evidence that had already been presented.
In this context, an offer of proof would not have aided the trial court in its task, nor was it
necessary to aid appellate review of the court’s decision. Under these circumstances, the trial
court did not abuse its discretion by disallowing the “offer of proof,” plaintiff’s counsel
attempted to make.
Plaintiff also challenges the trial court’s July 2, 2003, order requiring that the marital
home be listed and sold.
However, plaintiff waived any error in this regard by affirmatively consenting to the trial
court’s action. At a hearing on April 30, 2003, plaintiff’s counsel agreed with the court’s
proposal to list the property for sale.
1
Although plaintiff’s second stated issue identifies four subparts, only the trial court’s failure to
permit an offer of proof is adequately briefed. She mentions that the court invited proposed
questions and then failed to accept them or interview the children, but she cites no authority
concerning the propriety of the court’s actions. These matters are inadequately briefed and we
deem them abandoned. See Mudge, supra at 105.
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THE COURT: List property for sale with proviso that if [sic?] the parties
can’t close until 60 days after listing. Is that agreeable?
MS. PALETZ [Plaintiff’s counsel]: That’s agreeable.
MS. RONAYNE [Defense counsel]: That’s fine by me.
Plaintiff’s counsel also indicated that plaintiff had told defendant that the house needed to be
sold and they would divide the proceeds. Having agreed through counsel that the property
should be listed for sale,2 plaintiff should not be heard to complain that the trial court’s action
was improper. “Error requiring reversal cannot be error to which the aggrieved party contributed
by plan or negligence.” Phinney v Perlmutter, 222 Mich App 513, 537; 564 NW2d 532 (1997);
Hibbard v Hibbard, 27 Mich App 112, 116; 183 NW2d 358 (1970); Curylo v Curylo, 104 Mich
App 340, 346; 304 NW2d 575 (1981); see also People v Carter, 462 Mich 206, 215; 612 NW2d
144 (2000).
Plaintiff also challenges the trial court’s order requiring her to pay $1,000 for her failure
to comply with the court’s previous order to sign a listing agreement.
In an order dated July 2, 2003, the trial court ordered plaintiff to sign a listing agreement
as recommended by the realtor and to follow the recommendations of the realtor. The order
further provided that if plaintiff did not sign the listing agreement, she would be assessed $1,000
as a sanction. Subsequently, when plaintiff failed to sign the listing agreement as directed,
defendant filed a motion for an order to show cause for the noncompliance. The trial court then
entered an order requiring plaintiff to appear on July 9, 2003, and show cause “why she should
not be held in contempt of Court for violation of this Court’s order.” Following the hearing, the
trial court ruled:
The Court ordered that this lady sign a listing agreement forthwith, as
recommended by the realtor and follow the recommendations of the realtor. The
letter indicates there is a recommendation of the realtor. The proof is that she
didn’t sign it on July 2nd, so she’s assessed $1000.
Plaintiff challenged the sanction in her motion for a new trial, complaining that the trial court
improperly fined her without making a determination that she was in contempt of court and was
in violation of the contempt statute, MCL 600.1715. The trial court rejected this argument,
explaining:
The Court properly enforced the terms of the July 2, 2003 Order by
assessing Plaintiff $1,000.00. Therefore, the Court will not rescind the $1,000.00
sanction, which was not a fine, but costs.
2
We reject plaintiff’s argument that the trial court erroneously relied on her attorney’s consent.
See Nelson v Consumers Power Co, 198 Mich App 82; 497 NW2d 205 (1993) (an attorney has
apparent authority to settle claims connected with the matter).
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On appeal, plaintiff’s argument on this issue consists of the following paragraph:
Second, the trial court committed clear error of law when it assessed a
$1,000 attorney fee sanction without a rudimentary hearing to demonstrate if she
had in fact violated the Court’s order. Also, the assessment of the $1,000 attorney
fee sanction was a violation of the Michigan Contempt Statute which limits fines
to not more than $250. MCL 600.1715. Further, the attorney fee sanction does
not comply with the requirements of MCR 2.114(C) Signature and (D) Effect of
Signature.
In her limited treatment of this issue in her brief, plaintiff does not discuss the basis of the
trial court’s order. The trial court indicated that the sanction was not a fine, but was costs.
Plaintiff’s brief only addresses the sanction as a fine. Plaintiff’s failure to address the basis for
the trial court’s decision precludes appellate relief. See Roberts & Son Contracting, Inc v North
Oakland Development Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987). In addition,
plaintiff’s citation to MCL 600.1715 and MCR 2.114(C) and (D), without explaining or
rationalizing her position, is insufficient to properly present this issue for this Court’s
consideration. See Mudge, supra at 105.
Next, relying on George v Sandor M Gelman, PC, 201 Mich App 474; 506 NW2d 583
(1993), plaintiff argues that the trial court’s award of a lien to her former lawyer was an error of
law because no retainer agreement had been submitted in evidence. We disagree.
In George, supra, the defendant represented the plaintiff in a divorce action pursuant to
an oral agreement. Id. at 475. After they were unable to resolve a dispute over the defendant’s
bill, the defendant recorded a lien against a condominium that was awarded to the plaintiff in the
divorce judgment. Id. The plaintiff brought an action to remove the lien. Id. at 476. The trial
court granted summary disposition in favor of the defendant and denied the plaintiff’s motion for
summary disposition. Id. This Court reversed both orders and ordered the release of the lien.
George, supra at 479. The Court recognized that attorneys have a right to charging liens, which
“automatically attach to funds or a money judgment recovered through the attorney’s services.”
Id. at 477. The Court also acknowledged that an attorney may obtain a lien on real property by
way of a court order. Id. at 477-478, citing Wolter v Wolter, 332 Mich 229, 236; 50 NW2d 771
(1952); Tyrrell v Tyrrell, 107 Mich App 435, 438-439; 309 NW2d 632 (1981). But the attorney
in George had asserted a lien on real property without obtaining a court order. The Court held
that an attorney’s charging lien for fees may be imposed upon real property if the parties have a
written agreement providing for the lien, the attorney obtains a judgment and follows the proper
procedure for enforcement, or if there are “special equitable circumstances.” Id. at 478. None of
those situations was present in George, supra.
Here, however, plaintiff’s former attorney obtained the lien through a court order, which
George and Tyrrell both recognize is proper. Moreover, plaintiff waived any error because she
signed the order before it was presented to the trial court. Phinney, supra; Hibbard, supra;
Curylo, supra.
Next, plaintiff complains that the trial court failed to indicate how its award of child
support was calculated, i.e., whether it complied with or deviated from the child support formula.
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MCL 552.605(2) states that the court “shall order child support in an amount determined
by application of the child support formula” and “may enter an order that deviates from the
formula if the court determines from the facts of the case that application of the child support
formula would be unjust or inappropriate,” and sets forth the amount calculated under the
formula, the deviation, the value of property or other support award and the reasons why the
amount calculated by the formula would be “unjust or inappropriate in the case.”
Here, the discussion of this issue at the conclusion of the trial demonstrates that the trial
court relied on the calculation completed by defendant’s counsel, as depicting the amount
determined by the child support formula, as the basis for its support award. “The party appealing
a support order has the burden of showing that a mistake has been made.” Calley v Calley, 197
Mich App 380, 382; 496 NW2d 305 (1992). Plaintiff does not argue, much less demonstrate,
that the amount of the trial court’s award inaccurately reflects the amount determined by the
child support formula. In addition, to the extent plaintiff wanted to challenge the calculation, she
failed to raise the issue below. Under these circumstances, appellate relief is not warranted. See
Jansen v Jansen, 205 Mich App 169, 172; 517 NW2d 275 (1994); Edwards v Edwards, 192
Mich App 559, 561; 481 NW2d 769 (1992) (indicating that a challenge to the amount of the
child support calculation should be first raised before the trial court).
Plaintiff next argues that the trial court failed to make findings of fact and conclusions of
law regarding the “values of all assets as of an evaluation date and equitable division of these
assets.” She contends that the court failed to determine the values of the following assets: (1) the
marital home; (2) personal property; (3) the parties’ Barbie doll and ham radio collections; and
(4) the boat.
Generally, “[t]his Court reviews a property distribution in a divorce case by first
reviewing the trial court’s factual findings for clear error, and then determining whether the
dispositional ruling was fair and equitable in light of the facts.” Olson v Olson, 256 Mich App
619, 622; 671 NW2d 64 (2003). In Olson, supra at 627-628, this Court addressed the need to
make factual findings where the value of property is in dispute as follows:
[I]t is settled law that trial courts are required by court rule to include a
determination of the property rights of the parties in the judgment of divorce. As
a prelude to this property division, a trial court must first make specific findings
regarding the value of the property being awarded in the judgment. There are
numerous ways in which a trial court can make such a valuation, but the most
important point is that the trial court is obligated to make such a valuation if the
value is in dispute. Accordingly, we have held that a trial court clearly errs when
it fails to place a value on a disputed piece of marital property. [Citations
omitted.]
We reject plaintiff’s contention that the trial court erred in ordering the sale of the marital
property without determining its value. In Olson, supra at 627 n 5, this Court observed that “[a]
court could, for example, order the sale of a marital home (if that is an option in the case)
without determining its value and splitting whatever equity exists in the house between the
parties.” Here, the position of the parties at trial was that the home would be sold; therefore,
selling the home was “an option.” Accordingly, the trial court properly could order the sale of
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the marital home “without determining its value and splitting whatever equity exists in the house
between the parties.” Id.
With regard to the trial court’s failure to divide the personal property, we conclude that
plaintiff is precluded from challenging the trial court’s ruling because she caused or contributed
to the alleged error. In plaintiff’s closing argument, counsel requested the trial court to allow the
parties an opportunity to resolve the distribution of the personal property. Plaintiff is correct that
the determination of the property rights of the parties should have been made in the judgment of
divorce. Olson, supra at 627. Yet, “[e]rror requiring reversal cannot be error to which the
aggrieved party contributed by plan or negligence.” Phinney, supra; Hibbard, supra; Curylo,
supra. Therefore, plaintiff is not entitled to relief on this basis.
With respect to the trial court’s failure to place a value on the parties’ respective
collections, plaintiff also caused or contributed to the alleged error and, therefore, is precluded
from arguing this issue on appeal. In plaintiff’s closing argument, counsel suggested awarding
the collections to their respective owners. Plaintiff may not now complain about the court’s
decision to follow her recommendation. Phinney, supra; Hibbard, supra; Curylo, supra.
With respect to the boat, as well as the collections, no findings concerning the values
were necessary because the values were not in dispute. Olson, supra at 627. Neither party
presented any evidence concerning the values of their collections. Nor did plaintiff challenge
defendant’s testimony that the boat and trailer were worth $1,500. Therefore, this case is unlike
those cited by plaintiff wherein issues concerning the valuation of assets were litigated below.
See Thompson v Thompson, 189 Mich App 197; 472 NW2d 51 (1991); Burkey v Burkey (On
Rehearing), 189 Mich App 72; 471 NW2d 631 (1991). Therefore, appellate relief is not
warranted. 3
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Henry William Saad
3
It is noted, plaintiff also asserts that this case must be reassigned to another trial judge on
remand. However, based on our resolution it is unnecessary to address this issue as we are not
remanding the case for further proceedings. Regardless, none of the following criteria have been
shown to exist in this case, which would require remand to a different judge:
[A]n appellate court may remand to a different judge if the original judge would
have difficulty in putting previously expressed views or findings out of his or her
mind, if reassignment is advisable to preserve the appearance of justice, and if
reassignment would not entail excessive waste or duplication. [Feaheny v
Caldwell, 175 Mich App 291, 309-310; 437 NW2d 358 (1989) citing People v
Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986).]
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