Requests for Attorney fees in domestic relations cases, and maybe otherwise.

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter.  I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.  In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a).  The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.]  The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.