DAVID C RESETAR V RHONDA SUZANNE RESETAR
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID C. RESETAR,
UNPUBLISHED
March 4, 2008
Plaintiff-Counter-DefendantAppellee,
v
No. 265269
Wayne Circuit Court
LC No. 04-410078-DM
RHONDA SUZANNE RESETAR,
Defendant-Counter-PlaintiffAppellant.
DAVID C. RESETAR,
Plaintiff-Appellee,
v
No. 274047
Wayne Circuit Court
LC No. 04-410078-DM
RHONDA SUZANNE RESETAR,
Defendant-Appellant.
DAVID C. RESETAR,
Plaintiff-Appellee,
v
No. 277150
Wayne Circuit Court
LC No. 04-410078-DM
RHONDA SUZANNE RESETAR,
Defendant-Appellant.
Before: Bandstra, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
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In these consolidated appeals, defendant appeals as of right from the judgment of divorce
and an order denying defendant’s motion for a new trial, to amend the judgment of divorce, for
relief from judgment, and for a stay of proceedings and appeals, by leave granted, the trial
court’s denial of her motion to enforce this Court’s prior order regarding the sale of the parties’
car wash and the trial court’s order denying defendant’s motion to amend or vacate the judgment
of divorce. Defendant also appeals, by leave granted, an order denying defendant’s motion
requesting the disqualification of the trial court judge. We affirm.
Background
Plaintiff filed a complaint for divorce on April 5, 2004.1 At a February 8, 2005
settlement conference, the parties indicated an interest in referring the matter to binding
arbitration/mediation. An order was entered to that effect, providing that the arbitration would
take place on March 12, 2005, that a final arbitration award would be issued by March 21, 2005,
and that the parties would appear before the trial court on April 11, 2005 for entry of a judgment
of divorce.
On April 11, 2005, the parties appeared before the trial court. The parties having
attended mediation/arbitration and having reached no resolution, the trial court ordered that trial
would commence that afternoon. Trial did, indeed, commence that very afternoon and continued
on various days throughout the next two weeks. A judgment of divorce incorporating the court’s
oral opinion was entered on May 13, 2005. Relevant to the instant matter, the judgment of
divorce awarded defendant the parties’ marital home and the primary mortgage associated with
the home. Plaintiff was awarded the parties’ rental home, the primary mortgage on the home, the
parties’ car wash business (valued at $630,000.00), and all debts associated with the car wash.
The judgment further gave the trial court’s approval of a pending sale of the car wash and
provided that the proceeds from the sale of the car wash were to be used for repayment of the
debts secured by the car wash, with the debts on which defendant had liability being paid first.
Defendant thereafter moved for a new trial and/or amendment of the judgment of divorce,
for relief from judgment, and for a stay, which the trial court denied in its entirety. The trial
court also denied defendant’s motion to amend the judgment of divorce to settle the issue of the
car wash, which defendant brought when it was discovered that the sale of the car wash fell
through. Defendant thereafter filed an application for leave to appeal the trial court’s failure to
enforce the judgment of divorce regarding the sale of the car wash and its order denying
defendant’s motion to amend or vacate the judgment of divorce. In lieu of granting leave to
appeal, this Court reversed the trial court’s order denying defendant’s motion to settle the sale of
the car wash, stating: “Where both parties desire the sale of the car wash, the circuit court is
directed to appoint a receiver to implement the sale.” We remanded for proceedings consistent
with the order. Resetar v Resetar, order of the Court of Appeals, entered March 23, 2006
(Docket No. 265890). The trial court denied defendant’s later motion for enforcement of our
remand order and further denied defendant’s separate motion to disqualify the trial court judge.
1
Plaintiff had previously filed for divorce, but the matter was dismissed in February, 2004 for
lack of progress.
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Docket No. 265269
Defendant first argues that the trial court erroneously imposed a deadline for the
completion of arbitration, then rescinded the parties’ arbitration agreement. We disagree.
The existence and enforceability of the terms of an arbitration agreement are judicial
questions for the court. Watts v Polaczyk, 242 Mich App 600, 603; 619 NW2d 714 (2000).
Judicial questions are reviewed de novo. Id.
The domestic relations arbitration act (DRAA), MCL 600.5070 et seq., is a specific and
comprehensive statutory scheme that provides for and governs arbitration in domestic relations
matters. Harvey v Harvey, 257 Mich App 278, 285; 668 NW2d 187 (2003). Pursuant to MCL
600.5071, parties to an action for divorce may stipulate to binding arbitration by a signed
agreement that specifically provides for an award with respect to at least one issue concerning,
among other things, real and personal property or child custody. The DRAA contains numerous
protections, including mandatory pre-arbitration disclosures and detailed procedural
requirements. Id at 287.
MCL 600.5071 clearly and unambiguously provides that a matter may be submitted to
arbitration only by a “signed agreement.” Judicial construction of statutory language that is clear
and unambiguous is not permitted. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d
119 (1999). While the parties in this matter stated on the record their desire to engage in
mediation/arbitration, they did not execute a written arbitration agreement as required by the
DRAA. Instead, they merely obtained a court order, signed only by the trial court, referring the
dispute to arbitration. Where the requirement for a signed agreement was not met, the order for
arbitration was improper and the issue of whether any limitations on the arbitration procedure
itself were proper is thus moot.
Even if the order referring the matter to arbitration was proper and could be construed as
the parties’ agreement to arbitrate, we would nevertheless find that the deadlines imposed by the
court for completion of the arbitration were appropriate. First, while defendant argues there is no
statutory or court rule authority allowing time restrictions to be imposed upon arbitration
proceedings, one could also argue that the converse is true—there is no authority precluding
such limitations.
Second, the authority of the arbitrators is derived from the agreement. Gordon Sel-Way,
Inc v Spence Bros, Inc, 438 Mich 488, 496; 475 NW2d 704 (1991). If, in fact, the order is
viewed as a signed agreement of the parties, it is the parties who limited the
arbitration/mediation.
Third, and most compellingly, defendant, through counsel, explicitly agreed to the time
limitations set forth in the arbitration order. At the settlement conference, defense counsel
specifically stated that the parties desired to refer the matter for mediation and, if it did not work,
immediately go into arbitration so that they did not leave the mediator’s office without a
decision. The trial court indicated that the arbitrator must be made aware that his decision would
be due by March 21, 2005, and defense counsel related that he had never left the mediator’s
office without an opinion. Both parties, then, were well aware of the court’s proposed
limitations and continued to express (through counsel) a desire to engage in arbitration.
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Consistent with the parties’ desires and understanding, the order for arbitration entered that day
contained the timeframe in which the arbitration would proceed as well as the issues to be
arbitrated.
At no time did defendant object to or question the time limit for arbitration, nor did she
move to set aside the arbitration order. Where defendant explicitly agreed to limit the time in
which arbitration would take place, she cannot now assign this agreement as error. “To do so
would allow defendant to harbor error as an appellate parachute.” People v Roberson, 167 Mich
App 501, 517; 423 NW2d 245 (1988).
Defendant additionally argues that even if the court had the authority to impose a
limitation, the limitation was unreasonable because it soon became apparent that they could not
arbitrate the case in one day, as previously thought. However, nearly a month passed before the
parties were to appear before the court and no one contacted the court to ask for additional time
to arbitrate the matter. If defendant believed additional arbitration dates were necessary, the
matter could have been brought to the court’s attention well within that one-month period. The
timeframe imposed was not unreasonable and defendant’s failure to request additional time now
precludes her argument otherwise.
Next, defendant contends that the trial court abused its discretion in ordering trial on
three hours’ notice to the parties, and then imposed testimony deadlines that prevented defendant
from presenting her case. We disagree.
MCR 2.501(C) states:
Notice of Trial. Attorneys and parties must be given 28 days’ notice of trial
assignments, unless
(1) a rule or statute provides otherwise as to a particular type of action,
(2) the adjournment is of a previously scheduled trial, or
(3) the court otherwise directs for good cause.
Notice may be given orally if the party is before the court when the matter is
scheduled, or by mailing or delivering copies of the notice or calendar to attorneys
of record and to any party who appears on his or her own behalf.
Because the parties were not given 28 days’ notice of the trial, the issue is whether any of the
exceptions set forth in MCR 2.501 apply.
Here, the trial court presumably relied on the “good cause” exception to the twenty-eight
day notice requirement, MCR 2.501(C)(3). We review the trial court's finding of good cause for
an abuse of discretion. See Soumis v Soumis, 218 Mich App 27, 32; 553 NW2d 619 (1996).
The parties attempted a one-day mediation on March 12, 2005 and had a hearing date set
to enter the Judgment of Divorce on April 11, 2005. A review of the April 11, 2005 hearing
transcript reveals that the court received a letter from the arbitrator/mediator indicating that the
parties attempted mediation with him but were unable to settle the matter, and that it was his
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understanding that no further alternative dispute resolution proceedings were contemplated.
Further, as of the April 11, 2005 hearing date, discovery had been closed, no further mediation
dates had been scheduled, and no one contacted the court to reschedule or adjourn the hearing.
Given the expectation that a judgment of divorce would enter on that hearing date, the parties
were well aware that the court expected the case to be completely closed on April 11, 2005.
When the parties appeared on the hearing date without a judgment, it was therefore reasonable to
go to trial. Moreover, defendant presented the court with a trial brief at the hearing, and, on the
second day of trial, defense counsel twice indicated that the case was ready for trial. The trial
then proceeded over the course of two weeks. Under the circumstances, there was sufficient
good cause to proceed to trial on the date that the judgment was to be entered.
With respect to the limitations at trial, we note that MRE 611 grants a trial court broad
power to control the manner in which a trial is conducted, including the examination of
witnesses. People v Mixon, 170 Mich App 508, 514-515; 429 NW2d 197 (1988), rev'd in part on
other grounds 433 Mich 852, 443 NW2d 167 (1989). We review its determination of the scope
of examination for an abuse of discretion. Persichini v William Beaumont Hosp, 238 Mich App
626, 632; 607 NW2d 100 (1999).
The trial court limited both parties’ examination of plaintiff, indicating to plaintiff’s
counsel during direct examination that it did not need to know certain of the information
requested, and indicating to defense counsel during cross-examination that he had a limited
amount of time in which to complete his questioning. The trial court asked questions of the
witness as well and, as it was a bench trial, the trial court presumably knew what testimony it
would deem relevant and necessary for its ultimate ruling in the case. Given the above, and
noting that defendant has not identified how any limitation in time for questioning plaintiff
prejudiced her, the court did not abuse its discretion in limiting defendant’s time to crossexamine plaintiff.
Similarly, the trial court did not abuse its discretion in imposing other trial limitations.
During trial, defendant indicated that she would need to call no less than ten witnesses in
addition to herself and presented the trial court with a substantial trial brief containing a
multitude of documents as attachments. The trial court opined that the matter was not a difficult
financial case and that the majority of the information sought through the witnesses could be
submitted in a written offer of proof.2 The trial court thus gave defendant an entire day to call
what witnesses she felt were most relevant, informing defendant that anything she thought the
court needed to know in addition to witness testimony could be submitted in a written offer of
proof.
Given that this was a bench trial and the trial court’s ultimate duty was to ascertain and
divide the parties’ assets and liabilities, it was in the best position to determine what evidence
would best help her decision if given through live testimony and which evidence would be
2
The major issues for resolution were the values of the two homes, the debts incurred by the
parties and the reason for the debts, the value of the car wash, and whether plaintiff was
withholding cash from the car wash for his sole use.
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equally useful but less expensive and time-consuming if presented in written form. The trial
court did not abuse its discretion in limiting defendant’s time at trial, its actions were within its
authority under MRE 611, and the limitations did not preclude defendant from presenting her
case.
Defendant next contends that the trial court abused its discretion in precluding the
testimony of her forensic CPA. Decisions regarding the admissibility of an expert's testimony
are reviewed for an abuse of discretion. Tate v Detroit Receiving Hosp, 249 Mich App 212, 215;
642 NW2d 346 (2002).
MRE 702 governs expert testimony and provides that an expert witness may testify if the
trial court determines that scientific, technical, or other specialized knowledge will assist the trier
of fact and if :
(1) the testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Here, defendant’s expert, Mr. Wisinski, was retained to determine if the car wash’s
financial statements were accurately represented for purposes of the divorce proceedings. The
expert informed the court, however, that he was going to render an opinion only as to whether
the 2003 gross earnings of the car wash were accurately represented. Mr. Wisinski told the court
he did not have all of the books concerning the car wash, was not given enough time to analyze
the detail behind the car wash expenses, and could not render an opinion as to what was done
with any monies not stated in the earnings of the car wash or whether the money was spent on
the marital estate or otherwise.
The trial court’s duty in this divorce matter was to determine what the assets of the
marital estate were, and to determine to what extent, if any, either party diverted assets out of the
marital estate for their own personal benefit. Because Ms. Wisinski did not perform a valuation
of the car wash and did not have enough information to render an opinion as to the car wash
expenses, the trial court could reasonably conclude that any information Mr. Wisinski could
provide was not based upon sufficient facts or data and could not assist the trial court in ruling on
the ultimate issues concerning the car wash. The trial court thus did not abuse its discretion in
precluding the testimony of defendant’s forensic CPA.
Defendant next argues that the awarded spousal support was not just or reasonable under
the circumstances and that the trial court abused its discretion in setting the support amount. We
review a trial court’s decision whether to award spousal support for an abuse of discretion.
Gates v Gates, 256 Mich App 420, 432; 664 NW2d 231 (2003). We review a trial court's
findings of fact related to spousal support for clear error. Moore v Moore, 242 Mich App 652,
654; 619 NW2d 723 (2000). “A finding is clearly erroneous if the appellate court is left with a
definite and firm conviction that a mistake has been made.” Id. at 654-655. If there is no clear
error, this Court determines whether the dispositional ruling was fair and equitable in light of the
facts. Id.
The main objective of spousal support is to balance the incomes and needs of the parties
in a way that will not impoverish either party, and spousal support is to be based on what is just
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and reasonable under the circumstances of the case. Moore, supra, at 654. Facts to consider in
awarding spousal support 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 [spousal
support], (7) the present situation of the parties, (8) the needs of the parties, (9)
the parties' health, (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, (12) a party's fault in causing the divorce, (13) the effect of
cohabitation on a party's financial status, and (14) general principles of equity.
Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).
In this case, both parties submitted a statement of their respective expenses and income
for the court’s consideration, and the trial court specifically addressed the factors relevant to an
award of spousal support. The trial court considered the parties’ ages and acknowledged that
the parties agreed defendant would stay home with the parties’ children, while plaintiff made
approximately $144,000.00 per year, plus a $7200.00 car allowance. Noting that it awarded
plaintiff the car wash, the trial court also noted that it awarded plaintiff all of the debt associated
with the car wash. Acknowledging defendant’s expressed desire to continue to stay at home with
the parties’ school-aged children, the trial court indicated that defendant was entitled to
rehabilitative spousal support, given that she was young enough and educated enough (she has a
bachelor’s degree) that she would eventually be able to get back into the workforce. Sorting out
what it considered reasonable and necessary expenses, and taking into account the income
defendant could receive from part-time work as well as the child support amount awarded, the
trial court awarded defendant $1500.00 per month in spousal support for a period of five years.
While defendant places significant emphasis on one or two of the factors to be considered in
awarding spousal support, in light of the evidence and how it relates to the factors as a whole, we
find that the trial court's award of spousal support was just and equitable.
Defendant next argues that plaintiff’s failure to sell the car wash, as agreed upon, requires
that the judgment of divorce be set aside. We disagree.
We review a trial court's decision to grant or deny a motion to set aside a prior judgment
for an abuse of discretion. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999).
MCR 2.612(C)(1) provides for relief from judgments, orders, and proceedings on the
following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on
which it is based has been reversed or otherwise vacated; or it is no longer
equitable that the judgment should have prospective application.
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(f) Any other reason justifying relief from the operation of the judgment.
Defendant is correct that the parties anticipated that the car wash would be sold. Plaintiff
moved for permission to immediately sell the car wash during the divorce proceedings,
apparently had a buyer lined up, and was proceeding toward the sale. Consistent with that
intention, the judgment of divorce awards plaintiff the car wash, indicates the court’s approval of
the sale of the car wash, and values the car wash at $630,000.00. Plaintiff was also awarded all
of debt secured for the purpose of owning or operating the car wash, which was in an amount
close to, if not more than, the value of the car wash. Plaintiff was further ordered to pay off the
debt from the proceeds of the car wash sale, with the debt that defendant was also held liable for
to be paid first. The anticipated sale did not, however, occur, and plaintiff still owns and operates
the car wash.
Despite the lack of sale, plaintiff paid off the home equity line of credit (used for the car
wash) on the marital home awarded to defendant and defendant has identified no other debt for
which she remains liable. Where plaintiff was awarded the car wash, but was also awarded
nearly the entirety of the marital debt, most of which was used for the car wash and which
approached the value of the car wash itself, it does not appear that the failure to sell the car wash
renders the entire judgment unfair. Plaintiff is still saddled with all of the debt and expenses
associated with the car wash, and defendant is free and clear of the same. The goal of a court
when apportioning a marital estate is to equitably divide it in light of all the circumstances.
Byington v Byington, 224 Mich App 103, 114; 568 NW2d 141 (1997). That plaintiff retained the
car wash does not frustrate that goal or render the judgment inequitable.
Finally, defendant contends that the trial court abused its discretion in awarding her only
$750.00 in attorney fees. Attorney fees are not recoverable as of right in divorce actions.
Stackhouse v Stackhouse, 193 Mich App 437, 445; 484 NW2d 723 (1992). We review a trial
court's grant or denial of attorney fees for an abuse of discretion. Reed v Reed, 265 Mich App
131, 164; 693 NW2d 825 (2005). Any findings of fact on which the trial court bases an award of
attorney fees are reviewed for clear error. Id.
Attorney fees in a domestic relations case are governed by statute, MCL 552.13, and
court rule, MCR 3.206(C). According to MCL 552.13(1):
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. . .
MCR 3.206 provides:
(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
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(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.
Testimony established that plaintiff had already paid $5,000 to defense counsel for
defendant’s attorney fees, $5,000 for an expert, $6,500 to defendant’s prior counsel in the prior
divorce proceeding, half of the $2,400 mediation fee, and several thousand dollars of his own
attorney fees. While defendant had little income other than the child and spousal support
awarded her, she was also awarded the majority of the marital liquid assets while plaintiff was
awarded hundreds of thousands of dollars in marital debt, as well as being ordered to pay child
and spousal support. The trial court’s finding that plaintiff was not in a financial position to pay
defendant’s attorney fees was thus not erroneous.
As to defendant’s allegations that her attorney fees were incurred due to plaintiff’s failure
to cooperate or comply with discovery requests, the trial court indicated neither party was
efficient in their effort to resolve the case. The trial court then engaged in a detailed analysis of
each party and counsel’s conduct during the proceedings and employed a reasonable rationale in
determining that neither party was at fault with respect to the amount of attorney fees incurred.
Based on the trial court’s well-reasoned and supported findings regarding the parties’ ability to
pay attorney fees and that neither party was proportionately at fault for incurring any
unnecessary attorney fees, the trial court did not abuse its discretion in awarding only an
additional $750.00 in attorney fees to defendant.
Docket No. 274047
Defendant asserts that the trial judge’s deep-seated antagonism toward defense counsel
and application of the Due Process Clause necessitated her disqualification. We disagree.
When reviewing a motion for disqualification, this Court reviews the trial court's findings
of fact for an abuse of discretion and the applicability of the facts to the relevant law de novo.
Armstrong v Ypsilanti Charter Twp, 248 Mich App 573, 596; 640 NW2d 321 (2001).
Disqualification of judges is governed by MCR 2.003, which states in pertinent part:
(B) Grounds. A judge is disqualified when the judge cannot impartially hear a
case, including but not limited to instances in which:
(1) The judge is personally biased or prejudiced for or against a party or attorney.
(2) The judge has personal knowledge of disputed evidentiary facts concerning
the proceeding.
(3) The judge has been consulted or employed as an attorney in the matter in
controversy.
(4) The judge was a partner of a party, attorney for a party, or a member of a law
firm representing a party within the preceding two years.
The party challenging the impartiality of a judge “must overcome a heavy presumption of
judicial impartiality.” Van Buren Charter Twp v Garter Belt, Inc, 258 Mich App 594, 598; 673
NW2d 111 (2003) (citation omitted).
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“The Due Process Clause requires an unbiased and impartial decision maker. Thus, where
the requirement of showing actual bias or prejudice under MCR 2.003(B)(1) has not been met, or
where the court rule is otherwise inapplicable, parties have pursued disqualification on the basis
of the due process impartiality requirement.” Cain v Dep't of Corrections, 451 Mich 470, 497;
548 NW2d 210 (1996). “Due process requires judicial disqualification without a showing of
actual prejudice only in the most extreme cases.” Van Buren Charter Twp, supra at 599. Among
those extreme cases are where the judge:
(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 decision maker.
Crampton v Dep't of State, 395 Mich 347, 351; 235 NW2d 352 (1975)(citations
omitted).
We must examine claims that due process requires judicial disqualification on a case-bycase basis, Cain, supra at 514, and review the totality of the circumstances. Van Buren Charter
Twp, supra at 601. Disqualification is only necessary “when the risk of actual bias is too
prevalent, so that the constitutional guarantee of a fair trial would be inhibited.” Cain, supra at
514. “[T]he constitutional standard for disqualification is not easily met.” Id.
Here, defendant filed a motion to disqualify Judge Popke because she was allegedly
personally biased or prejudiced against defense counsel. Judge Popke denied the motion to
disqualify and defendant sought de novo review of the denial before Chief Judge Kelly. Judge
Kelly also denied the requested relief.
Defendant draws our attention to two potential reasons for Judge Popke’s bias: defense
counsel’s denial of Judge Popke’s 2002 request for assistance in getting appointed to the Court
of Appeals; and, Judge Popke’s remarks to defense counsel at 2006 fundraiser. The relevancy of
the possible reasons for her alleged bias is questionable. Nevertheless, defendant presents a
narrative of the events and conversations that transpired that are different from the version given
by Judge Popke. These are thus generally issues of credibility. Judge Kelly heard defense
counsel’s motion and, apparently found that defense counsel’s details of his communications
with Judge Popke were not as credible. We give deference to the trial court's ability to judge the
credibility of witnesses. See, e.g., Fletcher v Fletcher, 229 Mich App 19, 25; 581 NW2d 11
(1998).
Defendant also directs this court to an alleged ex parte communication between Judge
Popke’s clerk and plaintiff as evidence of a personal bias toward defense counsel. However, that
the communication “had to be undertaken at Judge Popke’s instruction” as alleged by defendant
is not borne out by the information elicited at the hearing. According to the information
provided at the hearing, Judge Popke did not engage in ex parte communication with plaintiff
and did not direct her clerk to do so. The alleged ex parte communication thus does not serve as
evidence that Judge Popke had a deep-seated antagonism toward defense counsel.
To the extent defendant takes issue with rulings made during the divorce proceeding
which he claims evidence Judge Popke’s bias and deep-seated antagonism toward defense
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counsel, “repeated rulings against a litigant, even if erroneous, are not grounds for
disqualification.” Armstrong v Ypsilanti Charter Township, 248 Mich App 573, 597; 640 NW2d
321 (2001)(citation omitted). We would also note that rulings were also made against plaintiff
during the proceedings and defendant was ultimately awarded the martial home, spousal support
and child support, and was relieved of all marital debt.
Finally, defendant directs this Court to Judge Popke losing her patience with defense
counsel during trial, making sarcastic remarks, and denying him the opportunity to make a
record. After a review of the entire record, however, we are satisfied that the occasional stray
remark by the trial judge does not show an actual bias or prejudice against defense counsel. The
trial judge’s alleged refusal to allow defense counsel to make a record similarly demonstrates no
bias or prejudice.
Throughout trial, defense counsel oftentimes asked to make a record on his objections.
The trial court generally advised counsel that he should put the matter in writing as they were
going to continue with trial. Judge Popke, then, never prevented defense counsel from bringing
any objection or argument he may have. Instead, she limited the mechanism through which
defense counsel could bring his argument and attempted to keep the trial focused and moving
forward. Defendant having failed to establish that Judge Popke harbored deep-seated
antagonism toward defense counsel, the trial court properly denied defendant’s motion for
disqualification premised upon MCR 2.003.
The denial of defendant’s disqualification motion brought on due process grounds was
also appropriate. Defendant has not identified which, if any, of the four situations illustrated in
Crampton, supra, this matter falls within, nor has she illustrated anything in this case that would
warrant categorizing this matter as “extreme” such that due process principles would require the
trial judge’s disqualification. And, given the outcome of the trial and the rulings made within, it
cannot be said that the risk of bias was so prevalent that the constitutional guarantee of a fair trial
was inhibited.
Docket No. 277150
Defendant first asserts that the trial court failed to comply with this Court’s remand
instructions to appoint a receiver to sell the car wash, despite the fact that the order was the law
of the case. Whether the law of the case doctrine applies is a question of law that we review de
novo. Hill v City of Warren, 276 Mich App 299, 305; 740 NW2d 706 (2007).
The law of the case doctrine provides that “ ‘if an appellate court has passed on a legal
question and remanded the case for further proceedings, the legal questions thus determined by
the appellate court will not be differently determined on a subsequent appeal in the same case
where the facts remain materially the same.’ ” Grievance Administrator v Lopatin, 462 Mich
235, 259; 612 NW2d 120 (2000), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428,
454; 302 NW2d 164 (1981). As a general rule, the law of the case binds lower courts, which
may take no action on remand that is inconsistent with the appellate court's decision on the case.
Id. at 260.
Courts have recognized several exceptions to applying the doctrine in subsequent
proceedings, including, (1) when the law has changed after the first appellate decision, Ashker v
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Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001); (2) to avoid precluding review of
constitutional issues. Locricchio v Evening News Assn, 438 Mich 84, 109-110; 476 NW2d 112
(1991); and, (3) where the facts do not remain materially or substantially the same, Grace v
Grace, 253 Mich App 357, 363; 655 NW2d 595 (2002). But the law of the case doctrine
“‘merely expresses the practice of courts generally to refuse to reopen what has been decided,
not a limit to their power.’” Locricchio, supra, at 109, quoting Messenger v Anderson, 225 US
436, 444; 32 S Ct 739; 56 L Ed 1152 (1912). The law of the case doctrine is thus discretionary.
Grace, supra.
On defendant’s October 18, 2005 application for leave to appeal, in lieu of granting leave
to appeal, we ordered:
Where both parties desire the sale of the car wash, the circuit court is directed to
appoint a receiver to implement the sale. The case is REMANDED to the circuit
court for further proceedings consistent with this order.
In her application for leave to appeal, defendant made the following statements:
Although it is uncontested that Plaintiff still has not sold the car wash and that
Defendant’s substantial debts remain unpaid, the trial court denied the motion. . .
Defendant’s substantial marital debts, which were supposed to be paid off by the
car wash sale months ago, remain unsatisfied.
. . .the fact remains that that Plaintiff still retains sole ownership of an exclusive
enjoyment of the profits from the significant marital asset- with no end in sight.
Meanwhile, Defendant is stuck with a patently inequitable asset distribution and
massive, unpaid debts.
Defendant’s application for leave to appeal with this Court appears to have been premised in
large part upon a claim that debts for the car wash remained unpaid and that defendant was liable
for such debts. And we based our order solely on the basis of the facts stated in defendant’s
application for leave to appeal, as plaintiff did not file a response.
Defendant filed her application for leave to appeal on October 18, 2005 and it is
undisputed that plaintiff paid off the home equity line of credit on the marital home awarded to
defendant on November 3, 2005. Defendant has not specifically identified any debts that she
remains liable for as a result of the car wash not being sold. Given that, and given that our prior
order was based on facts that existed at the time the application was filed, but did not exist mere
weeks later, the law of the case doctrine is inapplicable and the trial court did nor err in denying
defendant’s motion to enforce this Court’s March 23, 2006 order.
Defendant next argues that the trial court clearly erred in finding that defendant’s motion
to enforce this Court’s remand order was violative of MCR 2.114. Whether the trial court so
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erred or not is inconsequential, as the trial court did not impose sanctions upon defendant or her
counsel. We thus see no basis to review this issue on appeal.3
Affirmed.
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
3
Defendant’s final argument in this appeal mirrors her argument in docket no. 265269 that was
previously addressed by this Court, i.e. that plaintiff’s retention of the car wash necessitated
setting aside the judgment of divorce.
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