EARLIN FAYE WEBSTER V CURTIS L WEBSTER
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STATE OF MICHIGAN
COURT OF APPEALS
EARLIN FAYE WEBSTER,
UNPUBLISHED
December 1, 2009
Plaintiff-Appellee,
v
No. 285848
Genesee Circuit Court
LC No. 07-273592-DM
CURTIS L. WEBSTER,
Defendant-Appellant.
Before: Borrello, P.J., and Whitbeck and K.F. Kelly, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce. For the reasons set forth in
this opinion, we affirm.
The parties married in 1988 and plaintiff gave birth to the parties’ only child on October
15, 1991. Plaintiff filed her complaint for divorce on March 14, 2007, and then filed an affidavit
and default on June 11, 2007, as a result of defendant’s failure to answer the complaint or appear
in the action. A default was entered on that date. On February 21, 2008, plaintiff filed a motion
to enter a default judgment, and on March 3, 2008, the trial court held a hearing on plaintiff’s
motion. Defendant appeared at the hearing without counsel, and when questioned by the trial
court as to why he had not hired an attorney, the following exchange occurred:
THE COURT: Why – why did you not get a lawyer?
MR. WEBSTER:
Because I wanted it to be done right.
THE COURT: Why did you not file something in here – any – on your own.
MR. WEBSTER: I’m not trying to fight with them, sir. I want things done the
right way. I’m not trying to fight with my wife. I’m not trying to fight with
Ms. attorney Fish [plaintiff’s counsel]. I was told by an attorney that they
wouldn’t defend me because of Ms. Fish in your office – in your court – that
Ms. Fish has an unfair advantage in your court. I’ve been told by an attorney.
THE COURT: Why does she have an unfair advan-
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MR. WEBSTER:
I don’t know. I’m trying to find that out. And I want to get
to the bottom of it and give me a chance to get an attorney so we can find all
this out.
THE COURT: I’ll adjourn it one week and I’ll allow you to set the Default aside
upon payment of $1,000 in costs.
MR. WEBSTER:
On whose part?
THE COURT: You’ll have to pay $1,000 to have the Default set aside.
MS. FISH:
Is that to be paid to my office, your Honor?
THE COURT: Yes.
MS. FISH:
Thank you.
MR. WEBSTER:
Okay. It sounds about right, attorney.
THE COURT: And I’ll adjourn it one week.
MS. FISH:
Thank you, your Honor.
THE COURT: You can have a lawyer and have it set aside. I don’t have to do
that.
MR. WEBSTER:
Well –
THE COURT: You’re – you’re getting’ unfair advantage [sic].
MS. FISH:
Thank you.
One week later, on Monday March 10, 2008, attorney David Megdell filed his
appearance as defendant’s counsel and the parties again appeared before the trial court.
Plaintiff’s counsel stated that defendant never paid $1,000 to set aside the default. Defendant’s
counsel stated that he had just spoken to defendant over the weekend and requested a two-week
adjournment to file a motion for reconsideration regarding the $1,000 sum. The trial court
expressed reluctance to waive the payment requirement, stating that if defendant wanted to set
aside the default, he would have to pay for costs because “he sat on this thing for over a year.”
The following colloquy then ensued:
MR. MEGDELL:
It’s my understanding, Judge, that he’s at – that he’s tried
to speak to with [sic] Ms. Fish about this case. He doesn’t want the divorce.
But be as it may –
THE COURT: That’s beside the point. A Default was filed and he took no action.
I’m giving him an opportunity to get back in the case but it’s not going on
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forever and he needs to – there’s certain conditions for him to set it aside. If
not, I will proceed.
MR. MEGDELL:
Well can you adjourn this two weeks for him to uh- try to
raise the money – the $1,000 – so we can uh-proceed with a defense in this
case? Can you adjourn this for two weeks?
THE COURT: Yes, I’ll do that but that’s it. I mean, this lady’s waited and he’s
done nothing. That’s not fair. He’s had opportunities, had notice. He could
have hired you months ago. If he thought it was going to go away by doing
nothing, that’s unreasonable. That’s not fair to her.
***
THE COURT: And it’s not going go on – it’s not going to go on. It’s going to be
set for trial immediately.
MR. MEGDELL:
Okay.
THE COURT: I mean, I’m not – the court, nor should the uh-Plaintiff in this
matter, be held hostage to his inaction.
On April 23, 2008, the parties filed a stipulation to set aside the default and the trial court
entered an order setting aside the default. Also on the same day, the parties reached a partial
settlement that was placed on the record. The trial court directed the parties to appear at 9:00
a.m. the following morning to resolve the remaining four or five issues. Immediately after the
proceeding began the next morning, the following exchange occurred:
MR. MEGDELL:
I’d like to – I would like to make a motion at this time. I
met this morning for a few minutes with my client, Mr. Webster, and um-and
he informed me that he does not want me to represent him and he wants to get
a new lawyer, so I’m asking that I be recused from this case.
THE COURT: Mr. Webster, is that true?
MR. WEBSTER:
That’s true, sir.
THE COURT: Well I’m not going to give you time to get another lawyer.
MR. WEBSTER:
I’m waiting-I’m waitin’ on a call right now.
THE COURT: Wait a minute. Wait a minute. I’m talking right now. I’m not
giving you time. We’re going to trial this morning. You’re making a serious
mistake by discharging your attorney and I’m not going to let you get another
lawyer because you were in default in this case. I did you a favor by allowing
the default to be set aside. This matter is going to trial this morning and if –
you’re going up against a very experienced lawyer, and if you want to do that
on your own, I will allow you to do that, but I will not allow you time to get
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another lawyer. Now you got your choice to go to trial with Mr. Megdell this
morning or go to trial representing yourself.
MR. WEBSTER:
I’m going with your wishes, sir.
THE COURT: Huh?
MR. WEBSTER:
I’m going with your wishes. This is your court, sir.
THE COURT: I don’t – my wishes are it’s going to trial. I don’t care how it goes.
I’m just telling you that’s the choice you’ve got to make. We were here all
day yesterday.
MR. WEBSTER:
I tried, sir.
THE COURT: We are [sic] here all day yesterday and it’s going to trial this
morning. Now you decide if you want to try it yourself or you want to try it
with Mr. Megdell. I – I get – I strongly recommended yesterday that this
matter get settled. I kept you here all day yesterday. If I had let this thing go
to default, this wouldn’t have been going on. You’d a got none of this. You’d
had no opportunity to discuss it.
MR. MEGDELL:
Judge, based upon Mr. Webster’s intentions in this matter
or how he wants me to proceed or what I haven’t done, there’s no way I can
represent him because he refuses to follow my advice and he has a – and I just
do not feel comfortable representing him because I would just be a uh-the
word is uhTHE COURT: I will allow Mr. Megdell to withdraw. We’ll proceed –
MR. MEGDELL:
Thank you, your Honor.
THE COURT: We’ll proceed to trial. You represent yourself.
Following trial, the trial court signed a judgment of divorce (JOD), which was signed by
the court on May 14, 2008, but not entered by the court clerk until May 16, 2008. This appeal
ensued.
Defendant first argues that he was denied his constitutional right to counsel when the trial
court permitted his attorney to withdraw on the day of trial and refused to adjourn the trial to
enable him to secure new counsel. We review constitutional issues de novo. Wayne Co v
Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).
Const 1963, art 1, § 13 provides that “[a] suitor in any court of this state has the right to
prosecute or defend his suit, either in his own proper person or by an attorney.” “An attorney
who has entered an appearance may withdraw from the action or be substituted for only with the
consent of the client or by leave of the court.” In re Withdrawal of Attorney, 234 Mich App 421,
431; 594 NW2d 514 (1999).
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Defendant argues that he was denied his constitutional right to counsel when the trial
court permitted his attorney to withdraw on the morning of trial despite defendant’s indication
that he wished to proceed with the attorney’s representation. Defendant relies on Bye v
Ferguson, 138 Mich App 196, 200; 360 NW2d 175 (1984), in which the trial court permitted
defense counsel to withdraw on the morning of trial notwithstanding that the defendant failed to
appear at trial and had no notice of his attorney’s withdrawal. This Court held that, regardless of
whether the attorney’s withdrawal because of the defendant’s nonpayment of attorney fees was
justified, the defendant was entitled to notice of the withdrawal. Id. at 206. This Court stated
that although an attorney’s withdrawal does not give a litigant an absolute right to a continuance,
the defendant should have been afforded notice of the withdrawal and an opportunity to obtain
new counsel. Id. at 206-207. Similar to Bye, in Pascoe v Sova, 209 Mich App 297, 300-301;
530 NW2d 781 (1995), this Court reversed the trial court’s denial of the defendant’s motion to
set aside a default judgment based on the defendant’s lack of notice of his attorney’s withdrawal
at the beginning of trial.
In contrast to Bye and Pascoe, the record here shows defendant had notice of his
attorney’s intent to withdraw, and it was defendant’s desire that his counsel be removed from the
case. These factors alone negate defendant’s reliance on Bye and Pascoe as a means for this
Court granting relief. Additionally, the trial court informed defendant that it was not going to
further delay the matter and then gave defendant the option of either proceeding with attorney
Megdell or representing himself. Although defendant contends that he voiced his decision to
proceed with counsel, the record demonstrates that defendant avoided directly answering the trial
court’s question as to whether he wished to proceed with or without counsel by stating” “I’m
going to go with your wishes.”
In Wykoff v Winisky, 9 Mich App 662, 664; 158 NW2d 55 (1968), the defendants’
previous attorney withdrew because of indifferences that resulted in the defendants filing a
grievance against the attorney. The defendants retained new counsel approximately one week
before trial, and, after some discussion of whether the defendants wanted the new attorney to
continue to represent them, the trial court granted a one-day adjournment of trial on the condition
that there would be no further requests for adjournment. Id. at 665-666. At the beginning of trial
the following day, defense counsel moved to withdraw and the defendants requested a
continuance to hire a new attorney. The trial court permitted defense counsel to withdraw and
denied the defendants’ request for a continuance, essentially requiring that they represent
themselves during trial. Id. at 666. This Court affirmed, reasoning that had the defendants acted
with reasonable diligence, they had ample time to obtain counsel in whom they had confidence.
Id. at 668-669. This Court also noted that at a pretrial conference held approximately four
months before trial, one of the defendants indicated an intent to represent himself throughout the
proceedings. Id. at 667-668.
In this case, the record evidences defendant’s dilatory tactics and unwillingness to defend
the action. Defendant initially failed to answer plaintiff’s complaint or take any action after a
default was entered. He waited until plaintiff sought to enter a default judgment, approximately
11 months after she had filed her complaint, to participate in the action. Defendant appeared at a
March 3, 2008, hearing without counsel and claimed that he did not have enough time to hire an
attorney. When asked why he had not hired a lawyer, defendant merely replied, “Because I
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wanted it to be done right.” The trial court granted a one-week adjournment and allowed
defendant to set aside the default by paying $1,000 in costs to plaintiff’s counsel.
One week later, defendant still had not paid plaintiff’s counsel $1,000. The trial court
granted a request for a two-week adjournment, noting that such an adjournment was unfair to
plaintiff, who had pursued the action while defendant had “done nothing.” The court indicated
that it would grant no further adjournments. The court stated that the case would proceed to trial
immediately and that neither plaintiff nor the court would “be held hostage to [defendant’s]
inaction.” The parties appeared on April 23, 2008, and spent the entire day negotiating a partial
settlement that was placed on the record. Before trial on the remaining issues the following
morning, however, defendant indicated that he wanted to hire a new attorney and rescind the
agreement that was reached the previous day. We note that during defense counsel’s first
appearance before the trial court he indicated that his client did not want the divorce action to
proceed. When reviewing the record as a whole we are left with the firm conviction that
contrary to defendant being denied his constitutional right to counsel, he engaged in
gamesmanship with the trial court in an effort to forestall the proceedings, including discharging
his counsel on the date and time set for trial. As stated in Wykoff, supra at 670, “when the record
establishes a substantial basis for challenging a litigant’s good faith in preparing for trial, all need
not come to a dead halt until that litigant decides that he is ready to permit the trial to proceed.”
Because the record shows that defendant not only had notice of his attorney’s intent to withdraw
but that defendant sought to dismiss his attorney, defendant was not denied his constitutional
right to counsel. Further, because the record evidences defendant’s dilatory tactics and
gamesmanship, the trial court did not abuse its discretion by proceeding with trial in Megdell’s
absence and denying a continuance. See Bye, supra at 207.
Defendant also contends that the trial court abused its discretion by allowing his attorney
to withdraw on the day of trial. The trial court’s decision was not outside the range of reasonable
and principled outcomes. See Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008).
As previously discussed, the record establishes that defendant’s desire to dismiss Megdell was
yet another attempt to delay the proceedings.
Defendant next argues that the trial court’s failure to make findings of fact and
conclusions of law regarding child support and spousal support requires reversal. Defendant
contends that the trial court erred by failing to make explicit or implicit findings regarding his
baseline income and, as a result, it is unclear whether the court accepted plaintiff’s or
defendant’s assertion regarding his salary. Hence, defendant does not appeal the amounts
awarded by the trial court but rather the method employed by the trial court to calculate the
amounts.
Defendant argues that the trial court failed to make explicit or implicit findings in regard
to his income. MCR 2.517(A) provides, in relevant part:
(1) In actions tried on the facts without a jury or with an advisory jury, the
court shall find the facts specially, state separately its conclusions of law, and
direct entry of the appropriate judgment.
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(2) Brief, definite, and pertinent findings and conclusions on the contested
matters are sufficient, without overelaboration of detail or particularization of
facts.
(3) The court may state the findings and conclusions on the record or
include them in a written opinion. [Emphasis added.]
Although the trial court did not articulate its findings regarding defendant’s income on
the record following trial, it did so in the judgment of divorce, which states, “[Child] Support is
based on Plaintiff’s average net monthly income of $1,520.67 and Defendant’s average net
monthly unemployment and strike pay of $2,557.02 and then, his ability to earn an average net
monthly income of $4,640.45.” Pursuant to MCR 2.517(A)(3), the trial court was permitted to
state its findings of fact in a written opinion.
Further, regarding spousal support, the trial court recognized in its findings of fact on the
record that the parties’ disparity in income was extreme and that the marriage had lasted 20
years. The court further stated that plaintiff was in good health and should be afforded an
opportunity to further her education and seek new employment. These findings are sufficient to
satisfy MCR 2.517(A)(2) with respect to spousal support.
Affirmed. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Stephen L. Borrello
/s/ William C. Whitbeck
/s/ Kirsten Frank Kelly
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