Spousal support/Attorney fees in a divorce action

In Richards v Richards, __ Mich App __ (#319753, 6/2/15) the Court of Appeals reaffirmed that the plain language of MCL 552.28 does not create a “brightline rule” about when spousal support may be modified. Loutts v Loutts, ___ Mich App ___ (#318468, 2/10/15). Once a trial court provides for spousal support, it has continuing jurisdiction to modify such an order, even without “triggering language” in the judgment of divorce. Id., quoting Rickner v Frederick, 459 Mich 371, 378-379 (1999).  MCL 552.28 provides: On petition of either party, after a judgment for alimony or other allowance for either party or a child, or after a judgment for the appointment of trustees to receive and hold property for the use of either party or a child, and subject to section 17, the court may revise and alter the judgment, respecting the amount or payment of the alimony or allowance, and also respecting the appropriation and payment of the principal and income of the property held in trust, and may make any judgment respecting any of the matters that the court might have made in the original action.

The object in awarding spousal support is to balance the incomes and needs of the parties so that neither will be impoverished, and spousal support is to be based on what is just and reasonable under the circumstances of the case. Moore v Moore, 242 Mich App 652, 654 (2000). When considering an award of spousal support, the following are among those factors that should be weighed in the trial court’s decision: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity. [Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003).]

In Richards the Court also reaffirmed that “Attorney fees in a divorce action are awarded only as necessary to enable a party to prosecute or defend a suit” but are also “authorized when the requesting party has been forced to incur expenses as a result of the other party's unreasonable conduct in the course of litigation.” Hanaway, 208 Mich App at 298. Specifically, 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. [MCR 3.206 (emphasis added).]

Resentencing if counsel ineffective for failing to challenge offense variables.

In People v Wilding, __ Mich __ (#147675, May 29, 2015 the Michigan Supreme Court remanded to the trial court for an evidentiary hearing, pursuant to People v Ginther, 390 Mich 436 (1973), as to whether the defendant’s trial counsel was ineffective for failing to object to the scoring of OVs 8 and 10.   (The Court of Appeals had held that offense variable 8 (MCL 777.38(1)(a)) and offense variable 10 (MCL 777.40(1)(a)) were scored correctly, and that trial counsel was not ineffective for failing to object to the scoring of those variables.) 

In People v Harris, Unpub Per Curiam Opinion (#320233, 5/19/2015) the Court of Appeals  affirmed defendant’s convictions, but vacated his sentences and remanded for resentencing.  Defendant Harris argued that the trial court erred in scoring offense variables (OVs) 1, 4, 10, and 14, and that his counsel was ineffective for failing to challenge OVs 1, 4, and 10. The Court of Appeals held that while defendant was not entitled to relief with regard to his challenges to the scoring of these variables, his counsel was ineffective for failing to challenge the trial court’s scoring of OV 1.  If counsel had raised the objection, the trial court may well have assigned no points to OV 1 on the basis of Jones’s trial testimony and, thus, a different result was reasonably likely.