STATE OF MICHIGAN
COURT OF APPEALS
SUSAN L. FORMICOLA,
November 23, 2010
Macomb Circuit Court
LC No. 2005-003833-DM
Before: STEPHENS, P.J., and MARKEY and WILDER, JJ.
Plaintiff appeals by right the trial court’s denial of her motion for attorney fees and costs
in connection with defendant’s unsuccessful motion to modify child support. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
The parties were divorced on February 2, 2006, pursuant to a consent judgment. The
parties have two minor children. The initial child support order directed defendant to pay
plaintiff base support in the amount of $1,117 per month and ordinary medical expenses in the
amount of $43, for a total of $1,160 per month. Subsequently, on August 7, 2009, defendant
moved to modify child support. In his motion, defendant maintained that he had recently
changed employment after being unemployed for a time and stated that he currently earned an
average weekly gross income of $1,228, but that this figure included overtime, which he might
not be able to work in the future. Defendant also maintained that plaintiff, who was
unemployed, should have income imputed to her in the amount of at least $7.40 an hour for 40
hours per week. In response to plaintiff’s subsequent argument that defendant’s calculations
were incorrect and that defendant could not meet the minimum threshold for a change in a child
support order under 2008 MSCF 4.04, as well as plaintiff’s concurrent motion for sanctions for
filing a frivolous motion, defendant eventually recalculated his current wages without the
included overtime at $1,002.40 a week. Using this new figure, and still imputing income to
plaintiff, he argued that the new child support obligation should be $211.85 a week, or $921.56 a
month, an amount lower than the threshold $1,044 a month necessary to move for a change in his
On September 8, 2009, the trial court held a hearing on the parties’ motions. Ultimately,
the court concluded that it was not appropriate to impute income to plaintiff. The court noted
that plaintiff was not working at the time of the divorce and that there was no change in
circumstances to justify the court’s revisiting the issue. When defendant requested that the court
consider the 11 factors listed in the child support guidelines concerning imputation of income,
the trial court stated that it did not think that those factors necessitated imputation of income
while the children, then ages six and seven, still needed more parenting than they might when
they were older. The trial court denied plaintiff’s motion for sanctions, however, after finding
that the request for imputation of income was not frivolous.
We review a trial court’s determination whether an action is frivolous for clear error.
Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002). “A decision is clearly erroneous
where, although there is evidence to support it, the reviewing court is left with a definite and firm
conviction that a mistake has been made.” Id. at 661-662.
Under MCR 2.114(D)(2), when a party or an attorney signs a motion, among other
documents, the signature constitutes an certification that, “to the best of his or her knowledge,
information, and belief formed after reasonable inquiry, the document is well grounded in fact
and is warranted by existing law or a good faith argument for the extension, modification, or
reversal of existing law[.]” MCR 2.114(E) provides:
(E) Sanctions for Violation. If a document is signed in violation of this
rule, the court, on the motion of a party or on its own initiative, shall impose upon
the person who signed it, a represented party, or both, an appropriate sanction,
which may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the document, including
reasonable attorney fees. The court may not assess punitive damages.
Pursuant to MCR 2.114(F):
(F) Sanctions for Frivolous Claims and Defenses. In addition to sanctions
under this rule, a party pleading a frivolous claim or defense is subject to costs as
provided in MCR 2.625(A)(2). The court may not assess punitive damages.
MCR.2.625(A)(2) in turn provides:
(2) Frivolous Claims and Defenses. In an action filed on or after October
1, 1986, if the court finds on motion of a party that an action or defense was
frivolous, costs shall be awarded as provided by MCL 600.2591.
MCL 600.2591(1) provides:
(1) Upon motion of any party, if a court finds that a civil action or defense
to a civil action was frivolous, the court that conducts the civil action shall award
to the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
MCL 600.2591(3) defines “frivolous” as follows:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the
defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
These provisions impose a duty on the attorney to conduct an objectively reasonable inquiry into
the factual and legal viability of a pleading before it is signed. LaRose Market, Inc v Sylvan
Center, Inc, 209 Mich App 201, 210; 530 NW2d 505 (1995). The determination of whether a
claim is frivolous under MCR 2.114(E) and (F) and under MCL 600.2591 depends on the facts
of the case. Kitchen, 465 Mich at 662.
Plaintiff appears to argue that defendant’s motion to modify his child support was
frivolous under the statute and court rule because defendant should have known that his request
for modification of child support would be denied because it did not meet the “minimum
threshold for modification” of a change of ten percent of the currently ordered support, or $50,
whichever is greater. 2008 MCSF 4.04.1 But the main dispute over whether defendant’s
calculated reduction met the minimum threshold was whether the trial court should impute
income to plaintiff, who was not working. Defendant correctly points out that the MCSF manual
does allow for imputation of income after analyzing the eleven factors. 2008 MCSF 2.01(G).
Defendant argued, and continues to argue, that imputation was proper under the guideline
factors. The trial court found it was not, because plaintiff was not working at the time of the
divorce and that there had been no change of circumstances. The court also appeared to base its
decision on the age of the children and plaintiff’s desire to continue as a full-time parent.
We need not decide the underlying question of whether a court can properly modify a
child support order based on imputation of income to someone who was not working at the time
of the judgment of divorce. Instead, we note that plaintiff has not presented this court with any
authority to suggest that this question is so settled that defendant’s attempt to impute income
under these circumstances was so outrageous as to be frivolous. A party may not simply assert
an error and then leave it to this Court to search for authority to support or reject the argument.
In re Reisman Estate, 266 Mich App 522, 533; 702 NW2d 658 (2005). The trial court intimated
that were the children older, it might have reached a different decision. And, arguably, even if
the fact that the children were getting older was not by itself enough to warrant revisiting the
issue of imputing income to plaintiff, defendant’s new job and reduced income could have
formed the basis for maintaining that there was such a change in circumstances. We do not
decide whether defendant’s position is the correct one or whether imputation was appropriate
While plaintiff does not provide a citation to authority to show that defendant had to actually
establish this minimum threshold in order to seek modification of his child support, we note that
the state Friend of the Court Bureau is required to “establish a minimum threshold for
modification of a child support amount.” MCL 552.519(3)(a)(vi).
here. But defendant’s position had sufficient merit that we find no clear error in the trial court’s
decision that defendant’s motion for change in support was not frivolous.
We affirm. Defendant being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Cynthia Diane Stephens
/s/ Jane E. Markey
/s/ Kurtis T. Wilder