“A court in a divorce action may award
attorney fees to enable a party to carry on or defend the action.” Woodington
v Shokoohi, 288 Mich App 352, 369 (2010), citing MCR 3.206(C)(1). Under MCR
3.206(C)(2)(a), “[a] party who requests attorney fees and expenses must allege
facts sufficient to show that . . . the party is unable to bear the expense of
the action, and that the other party is able to pay. . . .”
The Courts have
interpreted this rule to require an award of attorney fees in a divorce action
‘only as necessary to enable a party to prosecute or defend a suit.’ Myland
v Myland, 290 Mich App 691, 702 (2010), quoting Gates v Gates, 256
Mich App 420, 438 (2003). “With respect to a party’s ability to prosecute or
defend a divorce action, a party ‘may not be required to invade her assets to
satisfy attorney fees when she is relying on the same assets for her support.’
” Id., quoting Maake v Maake, 200 Mich App 184, 189 (1993).
“Further, a party sufficiently demonstrates an inability to pay attorney fees
when that party’s yearly income is less than the amount owed in attorney fees.”
Id. “The party requesting the attorney fees has the burden of showing
facts sufficient to justify the award.” Woodington 288 Mich App at 370.
The trial court abuses its discretion where the party requesting
attorney fees would have to “invade the same spousal support assets she is
relying on to live in order to pay her attorney fees,”-----the party’s ability to
pay must be considered apart from that party’s support award and share in the
marital estate. Loutts v Loutts, 298 Mich App 21, 25 (2012).
The
trial court must make specific findings of fact regarding a defendant’s ability to
pay attorney fees. “Without adequate findings of fact, there is no basis for
determining whether the trial court’s award represented an abuse of
discretion.” Woodington, 288 Mich App at 371. And the matter will be remanded back to the trial for those specific findings.
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