LINDA M ORBACH-SHEAR V GEOFFREY E ORBACH
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STATE OF MICHIGAN
COURT OF APPEALS
LINDA M. ORBACH-SHEAR,
UNPUBLISHED
February 19, 2008
Plaintiff-Appellee,
v
No. 272961
Oakland Circuit Court
LC No. 1995-502158-DM
GEOFFREY E. ORBACH,
Defendant-Appellant.
Before: Saad, C.J., and Borrello and Gleicher, JJ.
PER CURIAM.
Defendant appeals by leave granted an order awarding plaintiff attorney fees in this
postjudgment divorce action. We affirm in part, reverse in part, and remand.
I. Underlying facts & procedure
Plaintiff and defendant married on October 23, 1983, and their marriage produced two
daughters. In March 1996, a consent judgment of divorce granted the parties joint legal custody
of the children, awarded plaintiff physical custody of the children, and provided defendant
visitation pursuant to a mediated agreement. Postjudgment litigation between the parties
intensified on July 24, 2003, when plaintiff filed a motion for modification or clarification of
defendant’s parenting time. Plaintiff alleged that defendant’s new wife subjected the children to
yelling and verbal abuse. Plaintiff also asserted that defendant and his wife often arrived late for
scheduled child custody exchanges, and that they denied plaintiff any contact with the children
when they visited defendant. According to plaintiff, defendant’s wife verbally disparaged her to
the children, failed to accommodate the youngest daughter’s special needs stemming from her
attention deficit hyperactivity disorder, and had locked the younger child out of defendant’s
home, forcing her to walk to plaintiff’s residence. Plaintiff additionally complained that
defendant refused to provide her with a copy of the eldest daughter’s videotaped Bat Mitzvah
ceremony. The trial court ordered the parties to submit to psychological evaluations, and
directed that defendant allow plaintiff to copy the Bat Mitzvah recording.
Plaintiff recounted that in late 2003, after the completion of her psychological evaluation,
but before she learned of its content, defendant and his wife discussed with the children
confidential information from the report, and that falsified versions of the report were
disseminated to many individuals and organizations familiar with plaintiff. Plaintiff thus moved
to suspend defendant’s parenting time, alleging that either he or his wife bore responsibility for
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the improper dissemination and discussion of the psychological evaluation. In February 2004,
plaintiff served defendant a subpoena to produce his home computer for analysis by a forensic
expert, to determine if the revisions to plaintiff’s psychological evaluation and the improper
communications originated from defendant or his household.
After the trial court entered a May 2004 order compelling production of defendant’s
home computer, he eventually produced one for forensic analysis. Examination of the
computer’s hard drive revealed no files that could be linked to the altered psychological
evaluation or the improperly disseminated documents. The forensic analyst noted, however, that
while he initiated his examination of the computer on June 24, 2004, the computer “showed that
it had a last access data of 11-09-2003.” In July 2004, plaintiff filed a motion for contempt,
arguing that defendant had violated the trial court’s order to compel by not turning over all his
home computers in light of (1) defendant’s indication to the forensic analyst that he was turning
over the “children’s computer,” (2) the evidence that someone had opened the hard drive casing,
and (3) the fact that the computer had not shown any use for months, despite the presence of
defendant, his wife, and her two high-school-aged children in the home. On August 4, 2004, the
trial court ordered defendant to reimburse plaintiff the forensic analysis costs of $1,500, found
defendant “responsible for drafting and disseminating ‘the document’ that addressed the court
ordered psychological evaluation,” and reserved ruling on plaintiff’s request for attorney fees.
On November 4, 2004, defendant filed a motion to disqualify Judge Linda Hallmark and
Friend of the Court (FOC) Referee Traci Rink from presiding over further proceedings on the
basis that they possessed a bias against the defense. Defendant complained that their bias and
impartiality stemmed from their improper review of letters and documents defendant’s wife had
prepared and forwarded to the Oakland Circuit Court’s chief judge, the Oakland Psychological
Clinic, and an FOC family counselor regarding allegations of Judge Hallmark’s bias. According
to defendant’s motion, the documents came into the possession of Judge Hallmark’s research
attorney, who turned them over to Referee Rink. Defendant characterized the documents, which
appeared nowhere in the trial court file, as confidential and prejudicial. Defendant concluded
that the court’s repeated rulings against him substantiated its possession of an actual bias against
him. In December 2004, defendant’s motion to disqualify Judge Hallmark was denied, and his
request for disqualification of the referee was forwarded to the FOC administrator.
Also in December 2004, plaintiff filed an emergency motion to suspend defendant’s
parenting time and for a final determination on her original July 2003 motion concerning
parenting time issues. The trial court entered an order requiring that weekly counseling continue
for the children, and that the parties again present themselves and the children for psychological
evaluations geared toward ascertaining appropriate parenting time modifications. The trial court
ordered that in the interim the parties adhere to the “status quo,” and that concerns pertaining to
production of the Bat Mitzvah tape by defendant would be addressed in ongoing proceedings
before the FOC. In addition, the court ordered that “[a]ll attorney fees are reserved.”
On April 12, 2006, the FOC referee issued findings of fact. The referee summarized
defendant’s testimony that “[o]n direct examination of defendant by counsel for plaintiff,
defendant stated that he could not recall whether he lied about the tape’s existence. He stated
that if he did, he might have done so in anger in response to plaintiff’s withholding of the
children. He stated that he did not have the tape in his possession and that it may be lost.”
Defendant’s mother testified that in July 2003, she viewed the tape with defendant’s father at
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Providence Hospital, and that after they watched the video defendant’s wife placed it in her
purse. The referee found that “the last known location of [the] . . . Bat Mitzvah video was with
defendant’s wife,” and that defendant or members of his household thus possessed the tape. The
referee recommended that defendant turn the tape over to plaintiff or pay her $2,500. Defendant
filed objections to the referee’s findings, including that plaintiff never proved that she lawfully
owned the Bat Mitzvah videotape or the “rights” to the recording. He also suggested that
plaintiff’s failures to contribute monetarily to the costs of the ceremony or the child’s religious
training likewise precluded her entitlement to the tape.
On May 2, 2006, plaintiff filed a motion for attorney fees. In support of plaintiff’s
request, she emphasized her much lower annual income than defendant’s, and cited his failure to
cooperate in producing the Bat Mitzvah videotape, his failure to turn over his subpoenaed home
computer for forensic analysis, the trial court’s determination that defendant or members of his
household had improperly disseminated information from the psychological evaluations, among
other dilatory and improper actions by defendant and his family members. Defendant objected
to any award of attorney fees, characterizing his actions as merely a “vigorous [d]efense” of his
legal rights. Defendant contended that plaintiff had behaved unreasonably and had unnecessarily
prolonged the litigation by objecting to the FOC and psychological recommendations, and by
pursuing false and inflammatory allegations concerning defendant’s behavior. Although
defendant neglected to provide substantiation of any fees he allegedly incurred, defendant
requested reimbursement of $47,581.44 for his attorney fees and “all other expenses associated
with this litigation.”
At a hearing on June 27, 2006, the trial court initially determined that it would not
consider defendant’s motion for attorney fees because he neither complied with the court’s
motion praecipe procedures nor properly served the motion on plaintiff’s counsel. During the
hearing, defendant acknowledged that he did not dispute “the Referee’s finding of constructive
ownership or possession,” but he insisted that the Bat Mitzvah videotape “has been lost.”
Relying on federal copyright law, defendant also continued to contest plaintiff’s ownership of or
entitlement to the videotape.
Plaintiff presented testimony concerning her income, the history of the litigation, and the
attorney fees and expenses she had incurred, and requested reimbursement of $44,546.72 in
attorney fees, and $2,326 in costs associated with her share of the depositions and psychological
evaluations. In response, defendant denied that he had sufficient funds to pay plaintiff’s attorney
fees, and remarked that “[a] judgment in this case to me would force personal bankruptcy, which
would cost the loss of my job no questions asked.”
The trial court ruled, in relevant part, as follows:
I’m going to assess the initial fees between July and November to the
plaintiff, make her responsible for payment of those fees. However, since
November of 2003, I think the unreasonable conduct of the defendant has caused
these fees. We have already found the dissemination of the psychological report,
the refusals to turn over the information regarding the computer, on and on and on
this has gone. Even the conduct today is unreasonable.
I believe you have a lot of anger, sir, but you have caused the attorney
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fees. And I’m going to assess $44,546.00 in fees to the defendant, also the cost of
2,326 for a total judgment of $46,872.00.
Further, I believe that should be added to the child support arrearage as
child support, and repaid to the plaintiff. And you can pay it over time, sir. You
don’t have to pay it in a lump sum, but those fees needs to be reimbursed to her.
And once they are child support, you cannot discharge them in bankruptcy. . . .
***
You’ve refused consistently to turn it [the videotape] over, sir. Again, it’s
curious, and I can see why the psychological was originally ordered, because it
doesn’t add up. The actions are so extreme compared to what the problem is that
it is difficult to even fathom what is going on in your mind.
But again the videotape needs to be turned over. If it is not turned over in
the next two days, then the additional cost of $2,500.00 should be assessed. This
clearly fits within the court rule regarding unreasonableness of the conduct and
also the statute [MCL] 552.13. The Reed [v Reed, 265 Mich App 131; 693 NW2d
825 (2005),] case talks about the grant of attorney fees, and if there is a causal
relationship between the fees that were incurred and the conduct, fees can be
assessed after an evidentiary hearing is conducted. This clearly fits within the
Reed case as well.
Finally, there is clearly a disparity of the income, but that alone would not
have caused the Court’s order, had it not been for the conduct. So for those
reasons, I will enter an order . . . .
On July 27, 2006, the trial court entered an order requiring “that the amount of $49,372.00 shall
be added to the Defendant’s child support obligation as arrearage and shall be paid at the rate of
$1,299.26 per month in addition to his regularly [sic] child support obligation of $1,400.00 per
month. A Uniform Child Support Order is incorporated by reference.” The trial court thereafter
denied defendant’s motion to set aside its attorney fee award, explaining that “[t]here were
sufficient grounds for attorney fees under MCR 3.206(C),” and noting that the “award was based
both on the disparity of income and Defendant’s unreasonable conduct during litigation.
II. Analysis of questions presented
A
On appeal, defendant first contends that the trial court erred by considering the disputed
issues because language in the divorce judgment required the parties to first submit parenting
time disputes to mediation. Because the rules of contract interpretation apply to consent
judgments, we review de novo the trial court’s interpretation as a question of law. Schmalfeldt v
North Pointe Ins Co, 469 Mich 422, 426; 670 NW2d 651 (2003); Young v Robin, 146 Mich App
552, 557-558; 382 NW2d 182 (1985).
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The divorce judgment provides that “[i]f a visitation dispute arises, the parties will submit
unresolved issues to mediation as a condition precedent to Court involvement.” Plaintiff’s first
motion to modify parenting time reflected that the parties unsuccessfully pursued mediation of
their visitation concerns, which defendant does not dispute. In fact, defendant’s brief on appeal
acknowledges that the parties commenced arbitration of their parenting time impasse, but could
not resolve their dispute because of oppositional behavior by plaintiff and defendant’s wife.
Defendant’s questioning of plaintiff at the June 27, 2006 hearing also at least implicitly
recognized that the parties had attended mediation on three occasions, albeit unsuccessfully,
before proceeding to the court for resolution of their disputes.
Furthermore, the judgment of divorce requires that the parties submit parenting time
issues to mediation before petitioning the court. By its plain terms, the judgment does not
mandate the resolution of all the parties’ postdivorce disputes through mediation, and does not
preclude resort to a court petition if mediation ends unsuccessfully. On the basis of defendant’s
own acknowledgment, we find that the parties complied with this provision of the divorce
judgment. As this Court recognized in Dick v Dick, 210 Mich App 576, 587; 534 NW2d 185
(1995), “[t]he requirement of a hearing, if voluntary nonbinding mediation fails, is equally
understandable. If mediation is chosen and fails, the custody dispute remains to be resolved and,
save intervention by the courts, there is no other means of resolution.”
B
Defendant also insists that the trial court’s grant of attorney fees to plaintiff ignored the
following language in the divorce judgment:
IT IS FURTHER ORDERED AND ADJUDGED that each party shall be
responsible for his or her own attorney fees, incurred during the pendency of this
divorce proceeding, and hold the other party harmless for same.
But defendant’s argument, that this language did not permit an award of attorney fees, ignores
the limiting language applying the attribution of payment for attorney fees to each party only
“during the pendency of this divorce proceeding.” (Emphasis added). Defendant misconstrues
the meaning of this language by interpreting “divorce proceeding” in an overly broad manner to
encompass postjudgment matters. The inclusion of this language within the judgment does not
prohibit a party from later seeking reimbursement of attorney fees and expenses incurred during
the parties’ postjudgment disputes.
Moreover, a Michigan statute and a court rule both authorize the trial court’s award of
attorney fees and costs under the instant circumstances. “[A]ttorney fees in divorce actions are
not recoverable as of right.” Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723
(1992). However, “[a] party to a divorce action may be ordered to pay the other party’s
reasonable attorney fees if the record supports a finding that such financial assistance is
necessary to enable the other party to defend or prosecute the action.” Id., citing MCL
552.13(1). “This Court has also held that an award of legal fees is authorized where 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.” Id. “We review a trial court’s [ultimate]
grant or denial of attorney fees for an abuse of discretion. Any findings of fact on which the trial
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court bases an award of attorney fees are reviewed for clear error, but questions of law are
reviewed de novo.” Reed, supra at 164.
In MCL 552.13(1), the Legislature has authorized as follows the imposition of fees and
costs in divorce actions:
In every action brought, either for a divorce or for a separation, the court
may require either party to pay alimony for the suitable maintenance of the
adverse party, to pay such sums as shall be deemed proper and necessary to
conserve any real or personal property owned by the parties or either of them, and
to pay any sums necessary to enable the adverse party to carry on or defend the
action, during its pendency. It may award costs against either party and award
execution for the same, or it may direct such costs to be paid out of any property
sequestered, or in the power of the court, or in the hands of a receiver. [Emphasis
added.]
The language of MCR 3.206(C) provides as follows:
(1)
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 or a
specific proceeding, including a post-judgment proceeding.
(2)
A party who requests attorney fees and expenses must allege facts
sufficient to show that
(a)
the party is unable to bear the expense of the action, and that the
other party is able to pay, or
(b)
the attorney fees and expenses were incurred because the other
party refused to comply with a previous court order, despite having the ability to
comply.
The trial court referred to both these provisions to justify its finding that defendant had
responsibility to reimburse attorney fees and costs to plaintiff.
When construing a court rule, this Court applies the legal principles that govern statutory
construction. In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004). We begin by considering
the statute’s or court rule’s plain language. “When that language is unambiguous, we must
enforce the meaning expressed, without further judicial construction or interpretation.” CAM
Constr v Lake Edgewood Condo Ass’n, 465 Mich 549, 554; 640 NW2d 256 (2002) (internal
quotation omitted).
In light of the court rule’s clear and unambiguous language permitting a litigant to
request attorney fees “at any time,” we conclude that the trial court did not err, either in its
interpretation of the limiting language of the divorce judgment, or in its consideration of
plaintiff’s request for attorney fees incurred during postjudgment litigation. Furthermore, given
(1) the trial court’s findings of fact, which have ample evidentiary support in the record, that (a)
several instances of defendant’s unreasonable conduct caused plaintiff to incur attorney fees and
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expenses, and (b) plaintiff’s income left her unable to accommodate the attorney fees and costs
she incurred, and (2) the language of MCL 552.13(1) and MCR 3.206(C) plainly authorizes an
order for reimbursement of attorney fees and costs under the circumstances found by the trial
court, we conclude that the trial court properly ordered defendant to reimburse plaintiff’s
attorney fees and costs. While defendant on appeal generally contests the trial court’s findings of
fact underlying plaintiff’s entitlement to an award of attorney fees and costs, he neither offered
any evidence, nor argues with specificity on appeal, in contradiction of the amounts contained in
plaintiff’s itemized list of fees and costs, on which the court relied in crafting the order of
reimbursement.
C
Defendant next challenges the trial court’s characterization of the attorney fee award as
an order for child support arrearages. “Whether a trial court properly operated within the
statutory framework relative to child support calculations and any deviation from the child
support formula are reviewed de novo as questions of law.” Peterson v Peterson, 272 Mich App
511, 516; 727 NW2d 393 (2006).
In Krist v Krist, 246 Mich App 59; 631 NW2d 53 (2001), this Court found that an
arbitrator overseeing a divorce action did not exceed his authority when he required that monies
he ordered paid to the plaintiff as part of a property settlement, if not paid by the defendant,
would be deemed spousal support, to preclude the defendant from circumventing the award
through bankruptcy. Id. at 65-66. This Court upheld the arbitrator’s authority to protect the
lump sum awarded to the plaintiff by imposing the nonpayment condition, explaining that “the
language employed in the arbitrator’s award was a mechanism to ensure that defendant husband
did not obtain the lion’s share of the marital estate and then subsequently discharge his
obligation to plaintiff after the judgment of divorce was entered.” Id. at 65. Accordingly, this
Court has found that it is not error or beyond the authority of a trial court to characterize an
award of attorney fees, or other lump sum payment, as support to protect it from a defendant’s
obstreperous behavior and to prevent potential dischargeability in bankruptcy.
D
Although a court may designate an award of attorney fees as in the nature of support, two
problems arise here. First, cases like Krist involve the characterization of a monetary award as
spousal support, not child support. In determining or awarding child support, a trial court must
follow the formula set forth in the Michigan Child Support Formula Manual. Peterson, supra at
516, citing MCL 552.519(3)(a)(vi) and MCL 552.605(2). When a trial court orders child
support, MCL 552.605(2) mandates the following:
Except as otherwise provided in this section, the court shall order child
support in an amount determined by application of the child support formula
developed by the state friend of the court bureau as required in section 19 of the
friend of the court act, MCL 552.519. The court 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 in
writing or on the record all of the following:
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(a)
The child support amount determined by application of the child
support formula.
(b)
formula.
How the child support order deviates from the child support
(c)
The value of property or other support awarded instead of the
payment of child support, if applicable.
(d)
The reasons why application of the child support formula would be
unjust or inappropriate in the case.
“Thus, as required by MCL 552.605(2), when deviating from the formula, the trial court fulfills
its statutory duty only when the court has articulated its rationale in accordance with subsection
2(a) through (d).” Peterson, supra at 517. Although a court may modify a child support order
“as the circumstances of the parents and the benefit of the children require,” MCL 552.17(1), a
child support order must rest on the application of the child support formula pursuant to
legislative mandate. MCL 552.519(3)(a)(vi); Ghidotti v Barber, 459 Mich 189, 200; 586 NW2d
883 (1998). In this case, the trial court’s order for payment of the award as a child support
arrearage is inconsistent with the plain statutory language defining the methodology for child
support calculation.
Second, the trial court exceeded its authority to the extent that it purported to address the
dischargeability of the imposed debt. In Brown v Felsen, 442 US 127, 132-138; 99 S Ct 2205;
60 L Ed 2d 767 (1979), the United States Supreme Court held that a bankruptcy court looks
beyond the evidence presented to support a state court judgment pertaining to a collection case,
and is not bound by the doctrine of res judicata. Consequently, if a bankruptcy action is filed,
only the bankruptcy court has authority to determine whether any of the debt owed qualifies as
dischargeable in bankruptcy.
Here, the trial court apparently interpreted defendant’s statement that an award of
attorney fees would place him in danger of bankruptcy as a threat of future action to avoid the
court-imposed fee payment obligation. The Bankruptcy Code excepts the following relevant
debts from discharge:
(5)
. . . a domestic support obligation;
***
(15) to a spouse, former spouse, or child of the debtor and not of the
kind described in paragraph (5) that is incurred by the debtor in the course of a
divorce or separation or in connection with a separation agreement, divorce
decree or other order of a court of record, or a determination made in accordance
with State or territorial law by a governmental unit. [11 USC 523(a).]
When determining whether a particular debt meets the § 523(a)(5) exception to discharge, a
bankruptcy court considers whether the debt is “actually in the nature of . . . support.” Shaver v
Shaver, 736 F2d 1314, 1316 (CA 9, 1984) (internal quotation omitted). This presents a factual
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determination for the bankruptcy court as a matter of federal bankruptcy law. Id. In accordance
with potential dischargeability determinations, the “term ‘support’ is to be broadly defined in
order to protect the best interests of the child.” In re Lowther, 321 F3d 946, 948 (CA 10, 2002).
“To ensure that ‘genuine support obligations are not improperly discharged(,) . . . the term
‘support’ will generally include obligations to pay attorney’s fees incurred in a custody dispute.”
Id. (internal quotation omitted). “[C]ourt-ordered attorney’s fees arising from post-divorce
custody actions are deemed in the nature of support under § 523(a)(5) as being incurred on
behalf of the child. This debt is nondischargeable.” In re Jones, 9 F3d 878, 882 (CA 10, 1993).
In summary, we conclude that the trial court erred by ordering that the attorney fees be
considered as child support arrearages, and by imposing the condition that defendant’s obligation
would be nondischargeable in some future bankruptcy proceeding. Child support awards must
conform to the statutory requirements discussed above, and a nondischargeability determination
falls within the bankruptcy court’s exclusive purview.
E
Defendant further asserts that because he did not receive proper notice that the trial
court’s ultimate ruling might encompass a child support obligation, the award denied him due
process. In a civil action, due process requires notice regarding the nature of the proceedings and
an opportunity to be heard. The notice provided must “be reasonably calculated . . . to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Maxwell v Dep’t of Environmental Quality, 264 Mich App 567, 574; 692 NW2d 68
(2004). Due process does not require that a defendant know any potential outcome of the
proceeding.
In this case, defendant does not deny receipt of the motion for attorney fees or notice of
the hearing to address plaintiff’s request, as reflected by a proof of service and confirmed by his
presence and participation in the hearing. Defendant thus received reasonable and timely notice
that the issue under review by the trial court was plaintiff’s petition for payment of attorney fees,
which constituted the sole subject matter addressed during the hearing. The mere fact that the
trial court issued an order designating the award of attorney fees as child support did not infringe
on defendant’s right to due process.
F
We also reject defendant’s argument that the award of attorney fees qualified as improper
because he endured two sanctions for the same conduct. Defendant’s argument confuses several
distinct legal doctrines. Although defendant’s argument invokes “res judicata,” a closer analysis
suggests that he complains that the trial court’s order violated due process because it subjected
him to double jeopardy. We view as a more accurate articulation of defendant’s argument that
he objects to having to pay both attorney fees and costs because the trial court’s award is
punitive in nature, rather than merely to secure reimbursement. Ultimately, however, we find
support for none of these formulations.
1
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The doctrine of res judicata precludes multiple lawsuits litigating the same cause of
action. Sewell v Clean Cut Mgt, Inc, 463 Mich 569, 575; 621 NW2d 222 (2001). Res judicata
bars a second or subsequent action when (1) the prior action was decided on the merits, (2) both
actions involve the same parties or their privies, and (3) the matter in the second case was, or
could have been, resolved in the first. Id. This Court has assumed an encompassing approach to
the doctrine of res judicata, emphasizing that it bars not only claims already litigated, but also
any claim arising from the same transaction that the parties, in exercising reasonable diligence,
could have raised but did not. Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999).
Res judicata does not encompass plaintiff’s assertion of error because this litigation did
not involve multiple actions. The sanctions imposed by the trial court merely reflect the
continuing nature of this custody dispute and the trial court’s initial restraint in awarding attorney
fees. The trial court repeatedly reserved ruling on plaintiff’s request for attorney fees, but did
award her reimbursement of the costs arising from defendant’s failures to comply with court
orders regarding the submission of his computers for forensic analysis, and as a sanction for his
refusal to turn over the videotape of their daughter’s Bat Mitzvah. The sanctions imposed did
not address in any respect the issue of attorney fees. The trial court’s later award of attorney fees
thus did not duplicate the sanctions previously ordered.
2
Defendant implies that the trial court’s imposition of both costs and fees infringes on his
right to remain free from double jeopardy. Both the United States and the Michigan
constitutions protect an individual from twice being placed in jeopardy for a single offense. US
Const, Am V; Const 1963, art 1, § 15. “The prohibition against double jeopardy provides three
related protections: (1) it protects against a second prosecution for the same offense after
acquittal; (2) it protects against a second prosecution for the same offense after conviction; and
(3) it protects against multiple punishments for the same offense.” Dawson v Secretary of State,
274 Mich App 723, 730-731 (opinion by Wilder, P.J.); 739 NW2d 339 (2007), quoting People v
Nutt, 469 Mich 565, 574; 677 NW2d 1 (2004) (emphasis omitted).
Contrary to defendant’s insinuation, the preclusion against double jeopardy “protects
only against the imposition of multiple criminal punishments and the same offense, and then
only when such occurs in successive proceedings.” Dawson, supra at 731, quoting Hudson v
United States, 522 US 93, 99; 118 S Ct 488; 139 L Ed 2d 450 (1997) (emphasis omitted). Civil
proceedings typically do not invoke double jeopardy protections unless “a threshold showing of
punishment [exists] demonstrating that the civil penalty is overwhelmingly disproportionate to
the government’s damages and expenses.” People v Duranseau, 221 Mich App 204, 207-208;
561 NW2d 111 (1997). Double jeopardy principles generally are not considered violated when a
civil penalty serves a purpose distinct from any punitive purpose. Id. at 206.
Defendant has failed to make a showing that the trial court imposed a penalty so punitive
in purpose or effect that it qualifies as criminal. Duranseau, supra at 207. The stated purpose of
the trial court’s ruling was to compensate plaintiff for the expenses she incurred because of
defendant’s conduct and, therefore, is distinct from the punitive purpose of a criminal sanction.
Consequently, the civil award did not violate the double jeopardy principles.
3
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Defendant’s constitutional argument against the imposition of costs and attorney fees
may also be evaluated as a contention that the award constitutes an excessive fine. US Const,
Am VIII; Const 1963, art 1, § 16. The excessive fine prohibition deals with “criminal process
and with direct actions initiated by government to inflict punishment,” and does not apply to an
award of damages in a civil case between private litigants, provided that the government has not
participated in the prosecution of the action and does not retain the right to receive a share of the
damage award. Browning-Ferris Industries of Vermont, Inc v Kelco Disposal, Inc, 492 US 257,
259-260, 262-264; 109 S Ct 2909; 106 L Ed 2d 219 (1989). Because no governmental unit
claims any right to the instant award of attorney fees and costs, the excessive fine prohibition
does not apply here.
4
Defendant finally suggests that the imposition of costs and attorney fees is improperly
punitive in nature. As already discussed, the evidence supported the trial court’s findings that (1)
defendant continued to prolong this litigation by repeatedly failing to turn over the Bat Mitzvah
tape, as the trial court had ordered, and (2) defendant or members of his household had
improperly disseminated material from her psychological evaluation. As a result of defendant’s
behavior, plaintiff had to expend additional costs and incur more attorney fees to ascertain the
extent of defendant’s culpability and to secure enforcement of the trial court’s orders. Because
the trial court did not clearly err in its finding of fact that defendant’s unreasonable conduct
caused plaintiff to incur unnecessary legal fees for which she lacked the ability to pay, we detect
no punitive element in the court’s ultimate order for defendant to reimburse plaintiff’s attorney
fees and costs.1
G
Defendant further contends that the trial court should be disqualified from hearing any
future issues in this case because of personal bias and prejudice against him. A trial court’s
findings of fact regarding a motion to disqualify a judge are reviewed for an abuse of discretion,
1
Although the trial court invoked MCL 552.13 and MCR 3.206(C) in ordering reimbursement,
but did not specifically reference MCR 2.114(D)(3), we observe that its imposition of attorney
fees also finds support in this subrule, which provides as follows:
The signature of an attorney or party, whether or not the party is
represented by an attorney, constitutes a certification by the signer that . . . the
document is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.
A sanction awarded under this subrule does not permit the inclusion of punitive damages, but a
trial court may award “the reasonable expenses [the innocent party] incurred because of the filing
of the document, including reasonable attorney fees.” MCR 2.114(E). The court rule does not
encompass sanctions only for signature and verification violations, but also permits a court to
award sanctions for the filing of a frivolous claim or defense. MCR 2.114(F).
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and the determination of the applicability of the facts to relevant law is reviewed de novo. Cain
v Dep’t of Corrections, 451 Mich 470, 503 n 38; 548 NW2d 210 (1996); Armstrong v Ypsilanti
Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001).
The Michigan Court Rules contemplate that a judge may be disqualified if she “cannot
impartially hear a case” because she is “personally biased or prejudiced for or against a party or
attorney.” MCR 2.003(B)(1). A “heavy presumption of judicial impartiality” exists, and to
overcome this presumption, a litigant must come forward with evidence of actual and
extrajudicial personal bias or prejudice. Cain, supra at 495-497. To qualify as “extrajudicial,”
the bias must be personal and must “origin[ate] in events or sources of information gleaned
outside the judicial proceeding.” Id. at 495-496. “(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.”
Gates v Gates, 256 Mich App 420, 440; 664 NW2d 231 (2003) (internal quotation omitted).
This Court may remand a case to a different judge “if the original judge would have difficulty in
putting aside previously expressed views or findings, if reassignment is advisable to preserve the
appearance of justice, and if reassignment will not entail excessive waste or duplication.” Bayati
v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004).
Defendant’s motion to disqualify fails to overcome the heavy presumption of judicial
impartiality. First, defendant cites no law in support of his position. “A party may not leave it to
this Court to search for authority to sustain or reject its position.” Sherman v Sea Ray Boats, Inc,
251 Mich App 41, 57; 649 NW2d 783 (2002) (internal quotation omitted). Second, defendant
cites only the trial court’s rulings to support his personal bias contention. Defendant identifies
no comments or remarks by the trial court tending to suggest intemperance or prejudice. The
only allegation of extrajudicial bias stems from defendant’s entirely unsupported assertion that
the trial court’s Lebanese ancestry predisposed it to prejudice against members of defendant’s
“new family,” who “were Israeli citizens.” Standing alone, this allegation does not suffice to
justify disqualification.
Defendant attributes bias, in part, to rulings pertaining to the admissibility of evidence.
Specifically, defendant refers to the trial court’s rejection of his affidavit denying his ownership
of more than one computer, and the court’s refusal to admit a written statement from the director
of his synagogue, Steven Weiss, to contradict plaintiff’s assertion that Weiss advised her that
defendant’s wife had stolen the Bat Mitzvah videotape. Regarding defendant’s affidavit
pertaining to his computer, it does not comport with the requirements of MCR 2.119(B)(1)(a)
and (c), because it fails to assert that defendant had personal knowledge regarding the presence
of other computers in the home, and it does not “show affirmatively that the affiant, if sworn as a
witness, can testify competently to the facts stated in the affidavit.” In reference to the letter
from Weiss, defendant failed to authenticate the writing in accordance with MRE 901(b)(1) by
having Weiss available to testify.
Defendant also complains that the trial court’s refusal to sign subpoenas “prior to the
June 27, 2006 hearing” and its “refus[al] to give a reason” evidence the court’s bias. In support
of this claim, defendant offers a “signed statement” from his current wife, dated September 11,
2006. Although defendant contends that the subpoenas were submitted “prior to the June 27,
2006 hearing,” the proffered statement of his wife inconsistently asserts that she presented the
subpoenas on “Wednesday, July 19, 2006.” In any event, this Court will not consider the
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statement by defendant’s wife because it is not a part of the trial court record. MCR
7.210(A)(1); Sherman, supra at 56 (observing that a party may not expand the record on appeal).
As defendant acknowledges, the trial court’s rulings regarding plaintiff’s request to
terminate or modify his parenting time were not unfavorable to him. These parenting time
rulings directly contradict defendant’s assertion of judicial bias or prejudice. To the extent that
defendant relies on adverse procedural rulings by the trial court to establish bias or prejudice,
these do not suffice to demonstrate a basis for judicial disqualification. Cain, supra at 496. In
conclusion, we have found nothing to support defendant’s claim that the trial court possessed an
actual, extrajudicial personal bias against him.
We affirm the trial court’s award of attorney fees to plaintiff, but we reverse to the extent
that the order designates the attorney fees as a child support arrearage, and we remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Henry William Saad
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
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