ROBERT STOUDEMIRE V DALE STOUDEMIRE
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT STOUDEMIRE,
Plaintiff-Appellee/Cross-Appellant,
v
FOR PUBLICATION
November 16, 2001
9:05 a.m.
No. 222896
Oakland Circuit Court
LC No. 95-493927-DO
DALE STOUDEMIRE,
Defendant-Appellant/CrossAppellee.
Updated Copy
January 18, 2002
Before: Griffin, P.J., and Meter and K. F. Kelly, JJ.
GRIFFIN, P.J.
Defendant wife, Dale Stoudemire, appeals and plaintiff husband, Robert Stoudemire,
cross appeals a judgment of divorce entered by the Oakland Circuit Court, Family Division. We
affirm.
I
The parties were married in 1983 in Detroit. Plaintiff was forty-one years old at the time
of the marriage and was employed as a laborer at Chrysler Corporation. Defendant, who was
twenty-eight years old when the parties married, was employed as a nursing assistant. The
parties had no biological children together.1 After the marriage and until 1991, both parties
worked and contributed to the payment of marital expenses. In September 1991, the plaintiff was
driving his vehicle when it was struck by a disposal truck, causing plaintiff to suffer a severe
closed head injury requiring brain surgery. Plaintiff 's recovery was prolonged; defendant quit
her job to assist in his recovery. Defendant obtained training in physical therapy in order to aid
her husband, and she took care of his daily needs.
1
Plaintiff has three adult children from his first marriage and defendant testified that, although
this was her first marriage, she was the biological mother of two adult children.
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In February 1992, defendant was appointed plaintiff 's guardian and conservator of his
estate by Judge Martin Maher of the Wayne County Probate Court. A lawsuit was then filed
against the disposal company in the Wayne Circuit Court (by defendant individually and as
guardian and conservator) and the case was settled in June 1993 for $3.5 million. In her capacity
as conservator, defendant stipulated a Wayne Circuit Court order that awarded her $1,330,492.88
for her loss of consortium claim, awarded a one-third attorney fee of approximately $1,166,666
to her personal injury attorney, and awarded plaintiff $1,000,000 in a structured settlement for his
severe closed head injury. Contrary to the directions of Judge Maher, defendant did not obtain
the approval of the Wayne County Probate Court before acceptance of the settlement.
A spending spree followed and the parties used the settlement monies to purchase
expensive consumer items such as cars, jewelry, furs, and clothing. Defendant used a portion of
the settlement proceeds to make a large "loan" to her church without plaintiff 's consent or
authorization. Although both parties participated in spending, plaintiff remained legally
incapacitated until February 1995, when the probate court issued an order restoring his
competency. Defendant continued to act as conservator until that time. Plaintiff evidently
engaged in extramarital affairs during this period.
In March 1995, plaintiff filed for divorce in the Oakland Circuit Court and also filed an
action in the Wayne County Probate Court seeking an accounting by defendant as conservator of
his estate. The divorce action was held in abeyance by the circuit court until an accurate
determination of the marital assets could be made. The probate court case was litigated over the
course of the next 3 1/2 years, resulting in findings of fact and conclusions of law, as well as a
final order issued by Judge Maher on December 17, 1998. The probate court found in pertinent
part that defendant, as guardian and conservator, had breached her fiduciary duty to plaintiff as
ward, that the settlement entered into by defendant as guardian and conservator "shocked the
conscience" of the probate court, and that if defendant had proceeded properly in the personal
injury action and sought damages for a loss of consortium claim, the proper measure of her
damages for that claim would have been twenty-five percent of the total settlement award. The
probate court accordingly reduced the award for loss of consortium to $557,623 and imposed a
surcharge. The probate court further held that defendant was not entitled to any fiduciary fees for
assisting plaintiff in pursuing his claim or fees for performance of caretaking duties. The net
balance of the personal injury proceeds were awarded to plaintiff. No allocation was made for
pain or suffering or lost wages in either the personal injury action or the probate litigation.
Neither the circuit court personal injury settlement nor the probate court decision was ever
appealed.
In May 1999, plaintiff brought a motion for partial summary disposition pursuant to MCR
2.116(C)(10) in the divorce action, alleging that Judge Maher's findings were res judicata
regarding the separate assets of the parties and the issues regarding defendant's surcharge as
conservator of plaintiff 's estate. In June 1999, Judge Linda S. Hallmark of the circuit court
family division granted plaintiff 's motion, ruling that the probate court's findings regarding the
distribution of the settlement proceeds and the accountings of the conservator were res judicata
with respect to those issues. However, the court also held that the probate court lacked
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jurisdiction to apportion the marital estate or to determine whether the separate estate of either
party should be invaded in the context of the divorce proceedings, either for an additional award
of property or for spousal support. The parties were ordered to proceed to trial on the issue of
division of joint property, including the marital home, its contents, a pension plan, and the issue
whether the parties' separate property should be invaded.
A five-day trial ensued in June 1999. The circuit court found that both parties were
equally at fault regarding the marital breakdown: plaintiff 's affairs contributed to the breakdown
of the marriage, and defendant's mishandling of the conservatorship also served to destroy the
relationship between the parties. The primary issue in dispute was the distribution of proceeds
from the personal injury action filed during the marriage. The circuit court determined that
plaintiff had separate property consisting of proceeds for his pain and suffering, defendant had
separate property consisting of proceeds for loss of consortium, and the lost wages portion of the
settlement, determined to be approximately $17,000, was split evenly between the parties. In her
twenty-eight page written opinion and order, Judge Hallmark made extensive findings regarding
the circumstances of the marriage and the division of other assets. A judgment of divorce was
entered on September 22, 1999.
II
On appeal, defendant first contends that the trial court erred in granting partial summary
disposition in favor of plaintiff on the basis of its conclusion that res judicata applied with regard
to the probate court judgment. Defendant maintains that the subject matter of the probate court
proceedings was different from, and therefore not conclusive of, the issues raised in the divorce
action; the probate court dealt only with a fiduciary's duties to the ward, and the breach thereof,
and not with matters of divorce. Citing York v Wayne Co Sheriff, 157 Mich App 417, 424-425;
403 NW2d 152 (1987), defendant further argues that the doctrine of res judicata is inapplicable
where one action is brought in a party's representative capacity and another subsequent action is
brought in a party's individual right.
This Court reviews a trial court's decision on a motion for summary disposition pursuant
to MCR 2.116(C)(7)2 de novo to determine whether the moving party was entitled to judgment as
a matter of law. Limbach v Oakland Co Bd of Co Rd Comm'rs, 226 Mich App 389, 395; 573
NW2d 336 (1997). The applicability of the doctrine of res judicata is a question of law that is
also reviewed de novo. Ditmore v Michalik, 244 Mich App 569, 574; 625 NW2d 462 (2001).
2
Plaintiff moved for partial summary disposition pursuant to MCR 2.116(C)(10), not MCR
2.116(C)(7), in claiming that res judicata was the proper ground in support of its motion.
However, an order granting summary disposition under the wrong subrule may be reviewed
under the correct rule. Limbach v Oakland Co Bd of Co Rd Comm'rs, 226 Mich App 389, 395, n
3; 573 NW2d 336 (1997).
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Judge Hallmark granted plaintiff 's motion for partial summary disposition, holding, in
pertinent part, that (1) the findings of fact and conclusions of law in the Wayne County Probate
Court's final order of December 17, 1998, were binding on the parties as res judicata, (2) the
property awarded to plaintiff by the probate court judgment was his sole and separate property,
the property awarded to defendant was her sole and separate property, and the joint and separate
property was part of the marital estate, (3) the parties were to proceed to trial on the division of
joint property, including the marital home, its contents, and a Chrysler pension plan, and (4) the
parties were to proceed to trial to determine the necessity of invading the separate property under
MCL 552.23, including distribution of the future lost wages portion of the personal injury award
of plaintiff and spousal support. In her subsequent opinion and order resolving the divorce
action, Judge Hallmark further explained with regard to plaintiff 's motion for partial summary
disposition:
Counsel for plaintiff brought a Motion for Partial Summary Disposition in
the divorce action on May 26, 1999, urging this court to adopt Judge Maher's
findings as res judicata regarding the separate assets of the parties and the issues
regarding surcharge of Mrs. Stoudemire as conservator of Mr. Stoudemire's estate.
This court determined that Judge Maher's findings regarding the distribution of
the settlement proceeds and the accountings of the conservator were res judicata
as to those issues. See Howell v Vito's Trucking & Excavating, 386 Mich 37; 191
NW2d 313 (1971) . . . . The Probate Judge lacked jurisdiction, however, to
apportion the marital estate or to determine whether the sole and separate property
of either party should be invaded pursuant to MCLA 552.23 or MCLA 552.401.
See McCormick v McCormick, 221 Mich App 672, [681]; 562 NW2d 504 (1997).
The issue of future spousal support was also reserved for decision by the Family
Division Judge.
* * *
Neither the June 17, 1993 Circuit Court settlement or [sic] Judge Maher's
December 17, 1998 decision in the probate action were [sic] ever appealed.
Judge Maher was the only judge to hear and carefully review the award of
the personal injury claim. He had jurisdiction to determine the issues relating to
the conservatorship, including the amount of property each party should have been
awarded in the personal injury action and whether Mrs. Stoudemire breached her
fiduciary duty as conservator in approving the personal injury settlement. He also
had jurisdiction to decide whether expenditures made by the conservator were
allowed and whether a surcharge should be imposed. This court has ruled
pursuant to an order dated June 17, 1999 that Judge Maher's decisions regarding
the appropriation of the personal injury award and the separate property awarded
to each of the parties as personal injury proceeds is res judicata. It is, however,
for this court to determine the marital estate of the parties and whether the
separate estate of either party must be invaded in the context of the divorce
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proceedings either for an additional award of property (MCLA 552.23 or MCLA
552.401) or for spousal support.
A review of the record leads to the conclusion that the trial court did not err in granting
partial summary disposition in favor of plaintiff. Res judicata bars relitigation of claims that are
based on the same transaction or events as a prior suit. Ditmore, supra at 577. Res judicata
applies when (1) the prior action was decided on the merits, (2) the decree in the prior decision
was a final decision, (3) both actions involved the same parties or their privies, and (4) the matter
in the second case was or could have been resolved in the first. Id. On the basis of these
principles and for the sound reasons stated by the trial court, Judge Hallmark was correct in
determining that the prior judgment rendered in the accounting action brought by plaintiff against
defendant for her breach of duties as conservator of his estate is res judicata regarding the issues
decided. While the probate court lacked authority to apportion the marital estate, McCormick v
McCormick, 221 Mich App 672, 681; 562 NW2d 504 (1997), it was within its authority to
determine the separate assets of the parties arising out of the personal injury settlement.
Moreover, contrary to defendant's argument, the fact that she was acting in a representative
capacity in the probate court action does not preclude the operation of res judicata in the divorce
action. As recognized by the trial court in its citation of Howell v Vito's Trucking & Excavating,
386 Mich 37, 45; 191 NW2d 313 (1971), where a party to one action in his individual capacity
and to another action in his representative capacity is in each case asserting or protecting his
individual rights, res judicata may still be applied. See also York, supra at 424-425. In the
probate court accounting action, in light of defendant's very large loss of consortium award, it is
readily apparent that defendant was protecting and defending the challenge to her individual
rights. Thus, res judicata applies.
Finally, in granting plaintiff 's motion for partial summary disposition, the trial court gave
plaintiff precisely the relief he requested. Thus, his current contention in his cross appeal that the
trial court did not go far enough and should have ruled that res judicata applied to all matters
decided by the probate court is disingenuous and has no basis in the record. As the trial court
astutely noted, the probate court did not have jurisdiction to delve into the divorce issues.
McCormick, supra. Plaintiff 's argument is also based on the faulty presumption that all the
settlement proceeds awarded to him by the probate court represented damages for pain and
suffering, not lost wages. See text, part IV.
III
Defendant next contends that the trial court abused its discretion by disregarding the
actions of plaintiff, who allegedly dissipated assets during the pendency of the divorce action
contrary to the terms of a mutual restraining order. Defendant claims that in addition to the
unauthorized spending of $32,000 on attorney fees, plaintiff also violated the mutual restraining
order by spending monies from certain accounts, totaling over $220,000. Defendant maintains
that the trial court abused its discretion in refusing to forfeit any of these assets wrongfully taken
and concealed by plaintiff. We disagree.
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The trial court addressed this issue in its opinion, stating:
A lump sum payment of $100,000 on November 16, 1996, was received
by Mr. Stoudemire during the pendency of this action. Mr. Stoudemire testified
that $32,000 was paid to his attorney for fees and the balance was used for living
expenses and to attend court appearances from his home in Alabama. Mrs.
Stoudemire has argued that the $32,000 expenditure for attorney fees was in
violation of the court's mutual marital asset restraining order dated April 6, 1995.
Mr. Stoudemire argued that the expenditure for attorney fees was made "in the
ordinary course of business" and does not constitute a violation of the restraining
order. Mrs. Stoudemire is also seeking reimbursement to the estate for the . . .
amounts [totaling approximately $220,000]:
* * *
The court recognizes that this action was filed on March 22, 1995. Both
parties have spent substantial assets since that time for which they have not
accounted. Mr. Stoudemire was obligated to pay substantial spousal support and
had expenses for travel and attorney fees in connection with the litigation. Given
the long period of separation and ongoing litigation, the court finds that neither
party violated the Mutual Restraining Order and neither party will be required to
return assets to the estate.
The standard of review in divorce proceedings has been stated in Sands v Sands, 442
Mich 30, 34; 497 NW2d 493 (1993):
In deciding a divorce action, the circuit court must make findings of fact
and dispositional rulings. On appeal, the factual findings are to be upheld unless
they are clearly erroneous. Beason v Beason, 435 Mich 791; 460 NW2d 207
(1990). A dispositional ruling, however, "should be affirmed unless the appellate
court is left with the firm conviction that [it] was inequitable." Sparks v Sparks,
440 Mich 141, 152; 485 NW2d 893 (1992).
See also McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996).
In the instant case, which is overflowing with evidence of unbridled and unaccounted for
spending by both parties, the trial court did not clearly err in finding that neither party violated
the mutual restraining order and that neither party would be required to return assets to the estate.
This was a fair and equitable response to the circumstances of the case. Sands, supra.
IV
Defendant next maintains that the trial court abused its discretion in disregarding
testimony from defendant's expert concerning economic damages attributed to the structured
personal injury settlement and the valuation of plaintiff 's pension. Defendant's expert testified
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that plaintiff 's annuity had a present value of over $1 million and represented an economic
component of the settlement and should be included in the marital assets to be divided between
the parties. The trial court nonetheless ruled that the structured settlement was the sole and
separate property of plaintiff and only the lost wages portion of the settlement would be subject
to distribution.
Our review of the record indicates that the trial court considered this issue in detail,
weighed the competing testimony of the parties' experts, and rejected defendant's expert's
testimony that all of plaintiff 's settlement proceeds represented economic losses as opposed to
pain and suffering. Instead, the court expressly adopted the reasoning of plaintiff 's expert,
stating in pertinent part:
In making a determination regarding separate property, it is necessary to
establish whether the personal injury proceeds paid to Mr. Stoudemire represented
compensation for pain and suffering, lost wages or both. Bywater v Bywater, 128
Mich App 396; 340 NW2d 102 (1983). Neither the Wayne County Circuit Court
nor the Wayne County Probate Court orders set forth any allocation of damages
regarding Mrs. Stoudemire's portion of the personal injury settlement . . . .
* * *
While it is impossible to know what analysis was used in reaching the
settlement of the personal injury action, it is clear that at the time of settlement
negotiations, Mr. Stoudemire was receiving long term compensation for lost
wages and was permanently disabled. It was known that he had sufficient years of
service to retire at age 55 and begin receiving his pension. His injuries were
extremely severe and justified a considerable award for pain and suffering. We
adopt the reasoning set forth by Mr. Kabacinski [plaintiff 's expert] which based
the lost wage award on the actual circumstances and find that the lost wage
portion of the damage award was in the amount of $17,012 as of the date of filing
of the divorce action. Each party is entitled to one half of the lost wages in the
amount of $8,506.
The balance of Mr. Stoudemire's personal injury award is attributed to pain
and suffering. It is, therefore, Mr. Stoudemire's separate property.
Judge Hallmark did not clearly err in her findings of fact with regard to the division of the
personal injury settlement proceeds. In cases where marital assets are valued between divergent
estimates given by expert witnesses, the trial court has great latitude in arriving at a final figure.
Pelton v Pelton, 167 Mich App 22, 26; 421 NW2d 560 (1988). The trial court has the best
opportunity to view the demeanor of the witnesses and weigh their credibility. Id. Moreover, as
Judge Hallmark recognized, while a right of action or an award of damages for pain and suffering
in a personal injury action is the injured party's separate property, it is, at the trial court's
discretion, available for distribution as a marital asset in a divorce proceeding in order to make a
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fair and equitable division of property. Bywater v Bywater, 128 Mich App 396, 398-400; 340
NW2d 102 (1983). See also Lee v Lee, 191 Mich App 73, 79; 477 NW2d 429 (1991).
In this instance, defendant's expert testified that in light of plaintiff 's income of $41,372
in 1991 and using a cost of living adjustment [COLA] factor of four percent a year to age sixtyfive, all of plaintiff 's settlement proceeds represented economic losses as opposed to pain and
suffering. He also calculated a factor for the loss of plaintiff 's "household services" resulting
from his disability. He calculated damages on the basis of plaintiff 's capacity to earn income up
to the maximum retirement age even if the individual did not intend to work the maximum
number of years.
By contrast, plaintiff 's expert stated that his calculation for lost wages was based on
plaintiff 's actual 1991 income of $30,327. He did not include a factor for household services
because these generally decrease over time, and he used a three percent rather than four percent
inflation factor. He also used a retirement age of fifty-five instead of sixty-five because plaintiff
stated that he intended to retire at age fifty-five even before the accident and did in fact retire at
age fifty-five after the accident. He likewise considered that plaintiff received lost wages as an
insurance benefit from September 1991 to August 1993, his actual retirement date. Using the
divorce filing date as the valuation date, plaintiff 's expert calculated plaintiff 's lost wages at
$17,012.
A review of the record leads to the conclusion that the trial court did not clearly err in
accepting and adopting the expert testimony of plaintiff 's witness, which was based on more
credible calculations than those of defendant's expert. Zecchin v Zecchin, 149 Mich App 723,
730-732; 386 NW2d 652 (1986).
V
Defendant next contends that the property settlement devised by the trial court constituted
neither a fair nor an equitable division of assets in light of all the circumstances. Defendant
complains that the trial court awarded a substantial portion of the marital assets to plaintiff,
ignoring plaintiff 's fault in causing the divorce and defendant's limited employment skills and
abilities. Defendant maintains that although she was awarded the marital home, the court also
gave her the mortgage note and the attendant maintenance and upkeep responsibilities and, in
light of her needs and plaintiff 's more ample monetary resources, her monthly support should
have been $3,500 rather than the $2,000 monthly spousal support awarded by the court.
Conversely, in his cross appeal, plaintiff argues that the trial court's award of spousal
support in gross was actually an unjustified award of a portion of plaintiff 's separate property to
defendant, rather than an award of spousal support. Plaintiff contends this was a short-term
marriage, and defendant had already received, during the pendency of these proceedings, four
years of spousal support at a rate of $3,500 a month, as well as a $10,000 advance on the
property division. Thus, according to plaintiff, the trial court did not give sufficient justification
for the invasion of plaintiff 's separate assets.
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Addressing these opposing arguments, our review of the record indicates that in her
thorough opinion, the trial judge considered the appropriate factors pursuant to Sparks, supra at
159-160, in dividing the assets of the parties. We conclude that the distribution of marital assets
is fair and equitable under the circumstances. It is undisputed that defendant, in her capacity as
guardian and conservator, mishandled the proceeds from the personal injury settlement. Indeed,
the trial court, finding that defendant is still capable of employment, also noted that "Mrs.
Stoudemire was awarded $600,000, most of which has been spent or awarded by the Wayne
County Probate Court in the form of attorney fees and surcharges. Mrs. Stoudemire must take
full responsibility for the dissipation of her assets." Defendant still received sufficient assets and
funds, including $2,000 monthly support, the marital home, one-half of the Chrysler pension,
one-half of the Chrysler stock, a loan receivable from her church, and other miscellaneous sums.
We therefore find defendant's complaints regarding the distribution of assets to be without merit.
Plaintiff 's related arguments raised in his cross appeal are likewise invalidated by Judge
Hallmark's well-written opinion. The judge aptly noted that defendant had to become
reestablished in the job market and in order to do so, she would require ongoing counseling and
training to obtain job skills. The trial court held:
In order to meet her monthly expenses while she reenters the job market,
the court will award her $2,000 per month for a period of ten years, commencing
on the date of judgment. This amount is nonmodifiable and should terminate
upon Mrs. Stoudemire's death or remarriage . . . .
Mr. Stoudemire is well able to afford the award of spousal support. Given
the significant sacrifices made by Mrs. Stoudemire in the care of her husband, the
award of spousal support is reasonable and necessary. It will enable her to meet
her living expenses and resume employment. The court finds that the property
awarded to Mrs. Stoudemire will be insufficient for her support and maintenance
while she becomes reemployed. The award of spousal support will adequately
provide for Mrs. Stoudemire so that a further invasion of Mr. Stoudemire's
separate property will not be required pursuant to MCL 552.23 or 552.40.
Given the fact that defendant was awarded fewer liquid assets than plaintiff, for
legitimate reasons noted by the trial court, the award of monthly support in the amount of $2,000
for ten years is reasonable and equitable, and the trial court did not err in this regard.
Plaintiff 's tangential argument raised in his cross appeal—that the trial court erred in
awarding all the equity in the marital home to defendant, failed to give plaintiff credit for
improvements made to the home, and thereby unjustifiably awarded eighty percent of the marital
estate to defendant—is for similar reasons without merit. Although defendant was awarded the
marital home, valued by the court at $65,000, defendant also assumed responsibility for the
mortgage. Judge Hallmark explained in pertinent part:
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The court finds that the value of the marital home is $65,069 ($80,500
[stipulated value]$—15,431 [mortgage balance]). No credit is given to Mr.
Stoudemire for the improvements. Although they were made from his money
during the pendency of the conservatorship, they served to increase the value of
the joint marital asset. Further, both parties had the use and enjoyment of the
home prior to their move to Southfield.
The court finds that the marital home should be awarded to Mrs.
Stoudemire. She is currently living in the home with her "grandchildren" Danielle
and Denzel. She has paid the mortgage and taxes on the property since 1995.
Further, Mr. Stoudemire is in a better position than Mrs. Stoudemire to maintain
alternative housing at this time. Although Mr. Stoudemire has paid spousal
support, he has not lived in the marital home or contributed directly to its
maintenance or upkeep since 1994.
Plaintiff was awarded the Alabama property where he was living during the pendency of
the divorce proceedings. His claim that defendant was unfairly awarded eighty percent of the
marital estate does not take into account the distribution of property as a whole. The trial court's
distribution of the marital estate was fair and equitable. Sparks, supra.
VI
Defendant lastly argues the trial court abused its discretion in refusing to award her expert
fees and more than $5,000 in attorney fees. Defendant states that she should not be required to
pay her attorney fees and expert fees out of her spousal support or nominal property settlement.
We disagree.
MCL 552.13 provides for attorney fees in actions for divorce or separation. This Court
reviews for abuse of discretion a trial court's decision to award attorney fees and expert witness
fees. Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 466; 633 NW2d 418 (2001); Kosch v
Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999). Attorney fees in a divorce action are not
recoverable as of right. Kurz v Kurz, 178 Mich App 284, 297; 443 NW2d 782 (1989). Attorney
fees and costs are to be awarded only where necessary to preserve the party's ability to carry on or
defend the action. Id.
The trial court in the instant case ruled:
Due to the protracted nature of these proceedings, each party has incurred
substantial attorney fees. Mrs. Stoudemire is awarded fewer liquid assets than Mr.
Stoudemire. He has the ability to contribute to Mrs. Stoudemire's attorney fees
and the court will order than [sic] he make a contribution of $5000 toward her
fees. Each party will then be responsible for the balance of their own attorney
fees.
-10-
A review of the record indicates no abuse of discretion on the part of Judge Hallmark in
the award of attorney fees. Although the trial court did not address the issue of expert witness
fees, it appears that neither party was awarded funds for this purpose. Such a result does not
constitute an abuse of discretion under the described circumstances.
VII
In sum, the trial court did not err in granting partial summary disposition in favor of
plaintiff pursuant to MCR 2.116(C)(7). The prior judgment rendered in the probate court
accounting action brought by plaintiff against defendant for her breach of duties as conservator of
his estate is res judicata regarding the issues decided therein. While the probate court lacked
authority to apportion the marital estate, McCormick, supra, it did have authority to determine
the separate assets of the parties arising out of the personal injury settlement.
Having considered the parties' respective claims raised in this appeal, we conclude that
the judgment of divorce entered by the circuit court should be affirmed without modification.
Defendant's appellate claims, and the issues raised by plaintiff in his cross appeal, lack merit. In
the context of this acrimonious divorce, the trial judge's findings of fact incorporated in her
comprehensive opinion are not clearly erroneous and the division of property and award of
spousal support are fair and equitable under Sparks, supra.
Affirmed.
/s/ Richard Allen Griffin
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
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