Nowicki v. Solecki-Nowicki, (Unpublished, #288775), 12/22/09
Domestic Relations ReviewThe Plaintiff husband appeals the trial court’s decision awarding defendant wife attorney fees and denying his motions for disqualification and change of venue.
This case apparently has an extensive history in Macomb County. In May 2008, the trial court sua sponte ordered that the husband’s fee waiver (that dated from 1996) was no longer in effect. It required the husband to reestablish his indigency before another waiver would issue. This prompted the husband to move to disqualify the assigned judge, the entire Macomb bench and to seek to change venue. The trial court denied each of the motions and indicated the waiver needed to be reviewed because it had been in existence some 12 years. The wife’s attorney asked for $750 in attorney fees arguing that this was the third time the husband made the request. The trial court said it was inclined to rule in the wife’s favor because the husband’s motion was frivolous. The husband contended that he was entitled to an evidentiary hearing on the award of attorney fees. The court agreed and set that hearing after the Chief Judge found that there was no bias or prejudice toward the husband and, thus, disqualification was not required.
The evidentiary hearing was held on October 10, 2008. The husband was not present. His attorney was and objected to the reasonableness of the attorney fee now claimed by wife of $3295.50. The trial court found the husband to be in default for failure to appear at the hearing. The court also concluded that the husband’s attorney couldn’t testify, so the court awarded the fees claimed.
On appeal the husband argued that the court erred in granting the attorney fee award without first determining whether the husband had the ability to pay when the record showed he was disabled, unemployed and indigent. He also claimed error in awarding the fees without any evidence beyond the wife’s attorney’s unsworn statement, in issuing the default judgment for the husband’s failing to appear and in refusing to listen to the husband’s counsel’s arguments given he was present at the hearing.
The Court of Appeals held that because the attorney fee award was a sanction for filing a frivolous claim, there is no necessity to determine if the sanctioned party (here the husband) had the ability to pay. MCL 600.2591 However, the Court of Appeals determined that the claim that there was a lack of evidence supporting the amount of the award had merit. The trial court may not award attorney fees based solely on what it perceives as fair or on equitable principles. Here, the wife’s attorney provided no evidence of her claimed fees. What is more, the fees claimed in May, 2008 were $750; in October, 2008 they had risen to $3295.50 without any explanation. And the husband’s attorney was not afforded an opportunity to identify what charges he considered unreasonable. So, the Court of Appeals vacated the fee award because there was no evidence that they were reasonable.
The trial court also erred, according to the Appeals Court, because the husband’s attorney was prohibited from arguing at the hearing. The husband had not been ordered to appear at the October hearing. Thus, the court could not punish him for not appearing. Since the attorney appeared for him he should have been afforded an opportunity to argue against any attorney fee award being considered.
The husband also argued on appeal that the assigned judge as well as the entire Macomb bench should have been disqualified and venue of the proceedings changed. The only real allegation of bias by the trial judge was the refusal to keep the 1996 fee waiver in force without review. Ruling against a party is not tantamount to a showing of bias or prejudice especially when all the husband needed to do was to re-establish his lack of income with some evidence. So the motion to disqualify was groundless. Likewise the husband’s request to change venue was without merit because he did not allege there was a more convenient forum and the husband had no issue that was going forward to trial.
Return to Calhoun County Courts Home Page
Last updated 2-1-10
Send your comments, questions and suggestions to Phil Harter at 161 E Michigan Avenue, Battle Creek, Michigan 49014 or e mail to: pharter@calhouncountymi.gov