TARRELL ALBERT HAGEN V KIMBERLY JONES-HAGEN
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STATE OF MICHIGAN
COURT OF APPEALS
TARRELL ALBERT HAGEN,
UNPUBLISHED
April 3, 2008
Plaintiff-Appellee,
v
No. 270930
Wayne Circuit Court
Family Division
LC No. 04-403829-DO
KIMBERLY JONES-HAGEN,
Defendant-Appellant.
Before: Whitbeck, C.J., and White and Zahra, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree with the majority that remand is necessary regarding spousal support to make the
award modifiable. I also agree with the majority’s affirmance of the trial court’s award of
spousal support.1
I disagree with the majority regarding attorney fees. I note that plaintiff filed for divorce
in February 2004 and the proceedings below continued until June 2007. With the exception of
two months early on in the proceedings, defendant proceeded below in propria persona and does
so on appeal as well. The record supports that defendant could not afford to retain other counsel,
yet her request for attorney fees to pay counsel during the several months during which she had
representation below was denied. I would instruct the trial court on remand to award defendant
whatever attorney fees she incurred, and an amount sufficient to gain representation on remand.
1
I note, however, that the record does support that defendant suffers from chronic back pain and
is on pain medication. Defendant, representing herself, early on in the proceedings stated to the
court that she took pain medication daily, and had a bad back. The court asked defendant to
explain to plaintiff’s counsel off the record what her diagnosis was. The record reflects that
defendant and plaintiff’s counsel went out in the hallway, and plaintiff’s counsel then stated on
the record that defendant had shown her proof of an upcoming surgery. Defendant also stated to
the court in a later proceeding, as did one of her witnesses, William Vaughn, that shortly before
the Farmington Hills home was foreclosed on, she had been hospitalized for a number of days.
Defendant’s daughter testified that defendant had a bad back and she provided her with pain
medication frequently.
-1-
I do not agree with the majority that the trial court properly denied defendant one half of
the 2003 tax refund. Plaintiff made no showing in the trial court that he had even received the
2003 refund early enough so that he could apply it to pay marital bills through February 2004.
The majority notes in a footnote that the record is silent as to when the 2003 tax refund was
cashed, yet relies on plaintiff’s testimony that he used the refund to pay marital bills, alone, to
affirm the trial court, stating that defendant did not challenge this testimony during her crossexamination, when defendant did in fact challenge plaintiff whether he paid the bills. Defendant,
representing herself, showed plaintiff various bills that evidence that he had not paid the marital
bills through February 04. Defendant obviously did not know the method by which documents
are offered and admitted into evidence.2 A fair reading of the record does not adequately support
that plaintiff applied the 2003 tax refund to pay marital bills through February 2004.
Finally, I note that the divorce judgment awards defendant one half of the 2004 and 2005
tax refunds, to which plaintiff admitted forging defendant’s signature. The record supports that
plaintiff refused to turn over those tax returns. Defendant should file a post-judgment motion in
the trial court to compel plaintiff to produce the tax returns and to enforce the judgment as to
those two refunds.
/s/ Helene N. White
2
The record is replete with instances evidencing that defendant’s representing herself permeated
and damaged her case below. Nonetheless, the majority makes little allowance for defendant’s
having proceeded in propria persona. See e.g., Burton v Jones, 321 F3d 569, 573 (CA 6, 2003)
(pleadings of petitioner appearing in propria persona are held to less stringent standards than
those drafted by attorneys), and Wimberly v Rogers, 557 F2d 671 (CA 9, 1977) (Court of
Appeals should make all allowances possible in favor of persons appealing in propria persona).
-2-
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