MARK C KLUNGLE V KATHY SUE ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
MARK C. KLUNGLE,
UNPUBLISHED
October 19, 2010
Plaintiff-Appellant,
v
No. 292191
Kent Circuit Court
LC No. 08-013557-CZ
KATHY SUE ANDERSON,
Defendant-Appellee.
Before: HOEKSTRA, P.J., and FITZGERALD and STEPHENS, JJ.
PER CURIAM.
In this action to obtain relief from the parties’ judgment of divorce, plaintiff appeals as of
right the March 30, 2009 order granting summary disposition to defendant. Because plaintiff
fails to establish that the trial court erred in concluding that the present action was not timely
filed, we affirm.
I. BASIC FACTS
The parties’ January 2002 judgment of divorce, entered by Judge Feeney, incorporated an
arbitration award. The judgment of divorce required plaintiff to pay $25,000 to defendant for
attorney fees. This Court affirmed the divorce judgment, rejecting plaintiff’s claim that the
arbitrator was biased against him because the arbitrator had been involved in numerous arbitrated
divorce cases handled by defendant’s divorce attorney. Klungle v Klungle, unpublished opinion
per curiam of the Court of Appeals, issued March 9, 2004 (Docket No. 240404).
In December 2008, plaintiff, pursuant to MCR 2.612(C)(3), filed a complaint for relief
from the divorce judgment. The essence of the complaint was that defendant, along with her
divorce attorney, used fraud and perjury to obtain a favorable judgment of divorce. The case was
initially assigned to Judge Feeney, but after a review of the pleadings by the chief judge, which
showed that the matter was civil in nature, it was reassigned to Judge Johnston.
Defendant moved for summary disposition under MCR 2.116(C)(1), (4), (6), (7), and (8).
Defendant’s alleged fraud was revealed in plaintiff’s response to the motion. According to
plaintiff, defendant’s divorce attorney submitted a statement to the arbitrator that defendant had
incurred substantial legal fees and that she was requesting an award of $50,000 for attorney fees.
However, in his bankruptcy proceedings in 2007, plaintiff had the opportunity to depose
defendant’s father, who testified that he had paid $50,000 to $60,000 to defendant’s divorce
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attorney. Plaintiff claimed that had the arbitrator and Judge Feeney known that defendant had
not paid her own attorney fees, he would not have been ordered to pay $25,000 to defendant.
Plaintiff also claimed that the deposition testimony of defendant’s father revealed that defendant
had lied at a February 2007 support review hearing.
The trial court granted summary disposition to defendant under MCR 2.116(C)(6), (7),
and (8).1 It concluded that, by reading MCR 2.612(C)(3) and MCR 3.602(J)(3) together,
plaintiff had 21 days after learning of defendant’s alleged fraud to file an independent action for
relief from the divorce judgment. It then determined that plaintiff knew of the alleged fraud,
whether it be the relationship between the arbitrator and defendant’s divorce attorney,
defendant’s statement that she had incurred substantial attorney fees, or defendant’s apparent
untruthful testimony at the February 2007 hearing, well beyond the 21 days before the complaint
was filed. The trial court dismissed the case, but the dismissal was without prejudice as to any
proceedings before Judge Feeney that were permissible under the court rules.
II. ANALYSIS
Plaintiff claims that the trial court erred in its determination that his fraud claims were
required to be heard by Judge Feeney. This argument is not based on an accurate reading of the
record.
At the hearing on the motion for summary disposition, the trial court indicated some
confusion as to why the present case was assigned to it. It also expressed some reluctance to
overturn a judgment entered by Judge Feeney. However, it stated that “[a] case that comes in the
door with my name on it is a case I have to deal with,” and it did deal with defendant’s motion
for summary disposition. After hearing the parties’ arguments, it held that because plaintiff did
not file the present case within 21 days after he learned of the alleged fraud, the case was
“simply untimely” under the court rules. It therefore granted summary disposition to defendant
and dismissed the case. Thus, the trial court never held that plaintiff’s claims needed to be heard
by Judge Feeney.
Plaintiff also claims that the trial court erred in its determination that the action was
untimely under the court rules.2 We disagree. We review de novo a trial court’s decision on a
motion for summary disposition. Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823
(2009).
1
The written order granting summary disposition to defendant states that summary disposition
was granted under MCR 2.116(C)(6), (7), and (9). Based on the trial court’s statement at the
motion hearing, we believe the written order contains a clerical error.
2
Plaintiff asserts numerous grounds for why summary disposition was improper. However, we
only address plaintiff’s argument that concerns the trial court’s stated basis for granting summary
disposition.
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Plaintiff concedes that, pursuant to MCR 2.612(C)(2), because the judgment of divorce
was entered in January 2002, any motion for relief predicated on fraud filed in the divorce action
before Judge Feeney would be untimely. He acknowledges that to obtain relief from the
judgment of divorce he must file an independent action, pursuant to MCR 2.612(C)(3). This
subrule provides:
This subrule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding; to
grant relief to a defendant not actually personally notified as provided in subrule
(B); or to set aside a judgment for fraud on the court.
MCR 2.612 does not provide a limitation period for when an “independent action” must be filed.
Because the judgment of divorce was the result of arbitration and because plaintiff argued
that the judgment was obtained by fraud, the trial court, in determining whether the present
action was timely filed, borrowed the 21-day period from MCR 3.602(J)(3). MCR 3.602(J)(3)
provides that “if the motion [to vacate an arbitration award] is predicated on corruption, fraud, or
other undue means, it must be filed within 21 days after the grounds are known or should have
been known.”3 Plaintiff does not claim that the trial court erred in reading the 21-day period of
MCR 3.602(J)(3) into MCR 2.612(C)(3), nor does he claim that this independent action for relief
from the divorce judgment was filed within 21 days of him discovering defendant’s alleged
fraud.
Plaintiff claims that because he filed a motion with Judge Feeney on April 11, 2008,4
which was 12 days after he received the “hard proof” of the alleged fraud, the present action was
timely, as he had made the court aware of the alleged fraud within 21 days of discovering it. We
find no merit to plaintiff’s argument. The present action is an “independent action,” filed
pursuant to MCR 2.612(C)(3), for relief from the judgment of divorce. It is an action separate
and distinct from the divorce action before Judge Feeney. We are aware of no authority, and
plaintiff cites none, to support the proposition that the time requirement for the filing of an action
can be met by the filing of a motion in a separate, distinct legal action. “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims.” Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351
(2003). Accordingly, we reject plaintiff’s argument that actions taken by him in the divorce
proceedings before Judge Feeney made the filing of this independent action timely.
3
See also MCL 600.5081(4).
4
Plaintiff also notes that in October 2005, before he had any actual proof of the alleged fraud, he
informed Judge Feeney of his beliefs of the alleged fraud.
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Affirmed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Cynthia Diane Stephens
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