SHELLY L REYNOLDS V DAVID E REYNOLDS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SHELLY L. REYNOLDS,
UNPUBLISHED
October 20, 2009
Plaintiff-Appellee,
v
No. 288358
Genesee Circuit Court
LC No. 95-179699-DM
DAVID E. REYNOLDS,
Defendant-Appellant.
Before: Davis, P.J., and Whitbeck and Shapiro, JJ.
PER CURIAM.
Defendant David Reynolds appeals as of right the trial court’s September 16, 2008 award
of attorney fees and costs to plaintiff Shelly Reynolds after the trial court found him in contempt
for violating the trial court’s previous parenting time and ex parte orders. We affirm.
I. Basic Facts And Procedural History
This appeal involves an underlying and ongoing custody dispute between the parties
related to their 1999 divorce. On August 15, 2008, Shelly Reynolds petitioned ex parte for an
order to show cause as to why David Reynolds should not be held in contempt of court for
violating the parties’ parenting time order by removing one of the parties’ two minor children to
his residence in Florida and failing to return her to Michigan. The trial court entered an order
that same day, finding that the minor child was removed from Shelly Reynolds’ home on August
4, 2008, without her knowledge, and in violation of the trial court’s prior custody and parenting
time order. The trial court ordered David Reynolds to immediately return the minor child to
Shelly Reynolds in Michigan. The trial court further ordered David Reynolds to show cause as
to why he should not be held in contempt and sanctioned for violating the trial court’s prior
custody, domicile, and parenting time orders when he removed the minor child to Florida. The
trial court ordered David Reynolds to appear before the trial court on September 2, 2008.
Further, the trial court ordered that the parties’ minor children “shall not leave the state of
Michigan until further order of this court.”
David Reynolds thereafter failed to return the minor child to Shelly Reynolds in
Michigan and failed appear in person at the September 2, 2008 hearing. Although he contacted
the trial court by telephone, the trial court on September 16, 2008, issued an order holding him in
contempt, assessing fines and attorney fees, and ordering that the parties’ minor children were
prohibited from leaving Michigan until further order of the court. David Reynolds thereafter
-1-
moved the trial court to reconsider, but the trial court denied his motion, and this appeal
followed.
II. Custody, Child Support, And Parental Rights Issues
David Reynolds argues that the trial court abused its discretion in determining custody,
child support, and parental rights issues. However, these issues are not properly before this
Court because David Reynolds has only appealed the trial court’s September 16, 2008 order that
held him in contempt of court, assessed fines and attorney fees, and ordered that the parties’
minor children were prohibited from leaving Michigan until further order of the court. An
appellant must timely appeal the final order of the trial court.1 “This Court ‘has jurisdiction of an
appeal of right filed by an aggrieved party from . . . [a] final judgment or final order of the circuit
court . . . .’”2 Here, David Reynolds never filed a claim of appeal from any ruling by the trial
court regarding custody, child support, and parental rights issues. We do not address issues that
are first raised on appeal.3
III. Attorney Fees And Costs
A. Standard Of Review
David Reynolds argues that the trial court erred in awarding attorney costs and fees after
finding him in contempt of court. We review the trial court’s findings in a contempt proceeding
for clear error, and we must affirm such findings where there is competent evidence to support
them.4 “Clear error exists when this Court is left with the definite and firm conviction that a
mistake was made.”5 Whether to issue an order of contempt “rests in the sound discretion of the
trial court and is reviewed only for an abuse of discretion.”6 We also review for an abuse of
discretion the trial court’s decision regarding awarding attorney fees for defendant’s contempt.7
Where the decision falls within the range of principled outcomes, there is no abuse of discretion.8
1
MCR 7.203(A); MCR 7.204(A).
2
Surman v Surman, 277 Mich App 287, 293-294; 745 NW2d 802 (2007), quoting MCR
7.203(A)(1).
3
Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 234; 507 NW2d 422
(1993).
4
In re Contempt of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009).
5
Id.
6
Id. at 671.
7
Taylor v Currie, 277 Mich App 85, 99; 743 NW2d 571 (2007).
8
In re Contempt of Henry, supra at 671.
-2-
B. Legal Standards
The trial court cited MCL 600.1701 and MCL 600.1711 in fining David Reynolds for
contempt. MCL 600.1701(g) provides that a circuit court has the power to punish “by fine or
imprisonment, or both” a party to an action “for disobeying any lawful order, decree, or process
of the court.” Further, MCL 600.1711(1) provides that “[w]here any contempt is committed in
the immediate view and presence of the court, the court may punish it summarily by fine,
imprisonment, or both.” Where the contempt “is committed other than in the immediate view
and presence of the court, the court may punish it by fine or imprisonment, or both, after proof of
the facts charged has been made by affidavit or other method and opportunity has been given to
defend.”9 The trial court may redress contemptuous behavior using the sanctions of criminal
punishment, coercion to comply with a court’s order, or compensatory relief to the
complainant.10 The trial court may also award attorney fees as part of the contempt finding.11
C. Applying The Standards
Here, we conclude that the trial court’s finding of contempt and award of costs and fees
were not clearly erroneous or an abuse of discretion.12 Shelly Reynolds presented competent
evidence supporting the finding through her affidavit and her testimony at the ex parte hearing
indicating that David Reynolds refused to return their minor child to Shelly Reynolds in
Michigan. This violated the December 22, 2005 parenting time order regarding summer
vacation time. David Reynolds also directly violated the trial court’s August 15, 2008 ex parte
order to return the minor child immediately and to appear at the September 2, 2008 hearing to
show cause as to why he should not be held in contempt of court. David Reynolds committed
contempt in the presence of the trial court by failing to appear13 and outside the presence of the
trial court by failing to return the minor child to Shelly Reynolds in Michigan.14 The trial court
was thus authorized to punish David Reynolds by fine or imprisonment, or both.15 (We note that
David Reynolds engaged in the same behavior during the summer of 2007, forcing Shelly
Reynolds to seek ex parte relief.) The record does not support that the imposition of a $250 fine
for each finding of contempt in 2008 was an abuse of discretion.
With respect to attorney fees, David Reynolds is correct that a person proceeding in
propria persona may not directly collect attorney fees.16 However, the record reflects that Shelly
9
MCL 600.1711(2).
10
In re Contempt of Dougherty, 429 Mich 81, 98; 413 NW2d 392 (1987).
11
MCL 600.1721; Burnett v Burnett, 152 Mich App 157, 161; 393 NW2d 562 (1986); Plumbers
& Pipefitters Local Union No 190 v Wolff, 141 Mich App 815, 818; 369 NW2d 237 (1985).
12
In re Contempt of Henry, supra at 668, 671.
13
MCL 600.1711(1).
14
MCL 600.1711(2).
15
MCL 600.1701(g); MCL 600.1711(1) and (2).
16
FMB-First Mich Bank v Bailey, 232 Mich App 711, 719; 591 NW2d 676 (1998).
-3-
Reynolds did not collect fees for the work that she performed in this case. Although Shelly
Reynolds occasionally represented herself at various times in the trial court and worked for her
attorney, Robert Crites, Crites also represented her in this instant case and was the attorney of
record. He prepared the ex parte petition and other pleadings in this matter and appeared at the
ex parte hearing and subsequent show cause hearings, on behalf of Shelly Reynolds. David
Reynolds relies on Omdahl v West Iron Co Bd of Ed17 to argue that “there must be separate
entities between the attorney and the client, and a person who represents himself or herself
cannot recover actual attorney fees . . . .” However, separate identities clearly existed in the case
because, unlike the situation in Omdahl, the client and the attorney are not the same individual.
The record supports a finding that Crites was Shelly Reynolds’ attorney and agent because he
“act[ed] in [her] stead,” and therefore it was possible for attorney fees to be incurred.18
Further, in Macomb Co Taxpayers Ass’n v L’anse Creuse Pub Schools,19 the Michigan
Supreme Court held that the fact that the absence of an express payment agreement between
client and attorney or the payment of a fee did not preclude establishing an attorney/client
relationship or the award of attorney fees, because “an obligation to pay for legal services” was
not the “sine qua non of an attorney-client relationship.” The Court held that “[t]he rendering of
legal advice and legal services by the attorney and the client’s reliance on that advice or those
services is the benchmark of an attorney-client relationship. The attorney’s right to be
compensated for his advice and services arises from that relationship; it is not the definitional
basis of that relationship.”20 The Court noted:
Since it is the attorney’s right to receive compensation for legal advice and
services rendered, it is also the attorney’s right to waive that right to receive
compensation. In the absence of a binding legal agreement absolving a client of
any responsibility to render compensation to the attorney, that attorney’s right to
demand compensation remains viable and unfettered. Whether the attorney, for
any reason, opts not to pursue compensation, has nothing to do with the fact that
legal fees were incurred.[21]
Therefore, whether Crites chose to collect fees from Shelly Reynolds does not change the
fact that legal fees were incurred for the time he spent pursuing the ex parte order to return the
minor child to plaintiff. Moreover, the record reflects that Crites informed the trial court that he
performed approximately 4 hours of work on this instant matter and that a reasonable hourly rate
was $250. The trial court noted that the attorney fees must be actual, not punitive, and held that
it would assess a fee of $200 an hour for four hours, totaling $800. Contrary to David Reynolds’
assertion on appeal, the trial court did, in fact, make a determination regarding the number of
17
Omdahl v West Iron Co Bd of Ed, 478 Mich 423, 432; 733 NW2d 380 (2007).
18
FMB-First Mich Bank, supra at 725-726.
19
Macomb Co Taxpayers Ass’n v L’anse Creuse Pub Schools, 455 Mich 1, 10; 564 NW2d 457
(1997).
20
Id. at 11.
21
Id. at 12.
-4-
hours worked and the hourly rate. We do not find this determination unreasonable.22 Further,
the trial court awarded attorney fees only for Crites’s work on the case, not Shelly Reynolds’
work.
D. Appearance By Telephone
David Reynolds also complains that he was not permitted to appear via telephone. After
reviewing the record, we conclude that no error occurred. David Reynolds engaged in the same
behavior during the summer of 2007, keeping the parties’ minor children beyond the time
allowed him under the parenting time order, and refusing to return them, forcing Shelly Reynolds
to seek ex parte relief. The trial court required David Reynolds to personally appear for those
proceedings and refused his request to appear by telephone. The August 15, 2008 ex parte order
directed that David Reynolds “shall appear before this Honorable Court on September 2, 2008,
at 1:30 p.m.” to show cause. Although David Reynolds attempted to call the trial court on the
telephone at that time, the trial court noted that “there’s a previous Court order that stated that
Mr. Reynolds would not have the ability to participate by telephone in Court proceedings and
that order is still in effect. And, secondly, the order of August 15 requires his presence. So, I am
going to state that he did contact the office in an attempt to participate by phone, but I’m not
going to allow it for those reasons.” We conclude that the trial court apprised David Reynolds of
the fact that his personal appearance was required when he again violated the parenting time
order during the summer of 2008, that Shelly Reynolds was again forced to move for relief ex
parte, and the trial court again ordered David Reynolds to appear and show cause why he should
not be held in contempt for violating the parenting time order and failing to return the children.
We further note that David Reynolds received proper notice of Shelly Reynolds’ ex parte
petition and the trial court’s ex parte order, as the record reflects that these documents were
served on David Reynolds via certified mail, return receipt requested, and he acknowledged
receipt of the documents. His arguments to the contrary are not supported by the record and are
without merit.
E. Rules Of Professional Conduct; Practice Of Law
Additionally, David Reynolds contends that Crites violated the Michigan Rules of
Professional Conduct and that Shelly Reynolds was guilty of practicing law without a license.
However, attorneys are permitted to assist a party proceeding in propria persona, and Crites was
designated as Shelly Reynolds’ co-counsel.23 It was not necessary that Shelly Reynolds be
“indigent” to receive any free legal services from Crites, and the record does not support a
finding that Crites otherwise provided her with financial assistance.24 Further, Shelly Reynolds
22
Smith v Khouri, 481 Mich 519, 528 n 12; 751 NW2d 472 (2008); Wood v Detroit Auto InterIns Exchange, 413 Mich 573, 588; 321 NW2d 653 (1982).
23
MRPC 5.5, comment.
24
MRPC 1.8(e); MRPC 6.1.
-5-
was not engaged in the unauthorized practice of law by exercising her constitutional right to
represent herself.25
F. Judicial Bias
Lastly, David Reynolds contends that the trial court was biased against him. Although
David Reynolds argued that the trial court was biased and requested that he remove himself from
the case several times throughout the divorce proceedings, including in response to the trial
court’s September 16, 2008 order, he never cited MCR 2.003, the court rule applicable to judicial
disqualifications, nor any other source of legal authority to support his argument in the trial court
or on appeal. An appellant may not merely announce his position, then leave it to this Court to
discover and rationalize the basis for his claims, or merely give cursory treatment to an issue and
fail to provide supporting authority.26 David Reynolds has therefore abandoned this issue on
appeal.27
Nonetheless, we have reviewed David Reynolds’ claim and conclude that it is without
merit. “A trial judge is presumed to be impartial, and the party asserting partiality has the heavy
burden of overcoming that presumption.”28 A defendant must show actual bias.29 Here, David
Reynolds alleges that the trial court was biased as demonstrated by its ex parte order and its
refusal to allow him to appear by telephone. However, “[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 and
overcomes a heavy presumption of judicial impartiality.”30
David Reynolds also argues that the trial court was biased because Crites’s wife worked
for the friend of the court and was assigned to the judge in this case. However, the record
reflects that court policy dictated that Crites’s wife had no contact with cases where Crites was
the attorney, and the trial court indicated that he would not know who Crites’s wife was even if
she appeared in court. On the record, there is no evidence demonstrating actual bias by the trial
court where Crites’s wife was not assigned to this case and had no personal connection to the
trial court judge.31
25
Const 1963, art 1, § 13.
26
In re Application of Ind Mich Power Co, 275 Mich App 369, 376; 738 NW2d 289 (2007).
27
Id.
28
Coble v Green, 271 Mich App 382, 390; 722 NW2d 898 (2006).
29
Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996).
30
Gates v Gates, 256 Mich App 420, 440; 664 NW2d 231 (2003) (quotations and citations
omitted).
31
MCR 2.003(B)(1); Cain, supra at 495-496.
-6-
G. Vexatious Appeal
Shelly Reynolds requests that this Court find David Reynolds’ appeal vexatious and
award damages.32 However, she did not move under MCR 7.211(C) for attorney fees and costs
because of the appeal. Rather, her request is contained in her brief on appeal and does not
constitute a proper motion for a vexatious appeal and sanctions.33
Affirmed.
/s/ Alton T. Davis
/s/ William C. Whitbeck
/s/ Douglas B. Shapiro
32
MCR 7.216(1).
33
MCR 7.211(C)(8); Citizens Ins Co v Secura Ins, 279 Mich App 69, 78; 755 NW2d 563 (2008).
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
