Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem
AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Alan G. Greenberg, for plaintiff. Small, Oakes Vosko, for defendant.
Judges
  • PER CURIAM.
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Click here to upload
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Alan G. Greenberg, for plaintiff. Small, Oakes Vosko, for defendant.
Judges
  • PER CURIAM.
See more information ...
Smart Summary

Summary of Opinion: WHITE v WHITE, Docket No. 78-1334 (Mich. Ct. App. Sept. 21, 1978)

Factual and Procedural Background

A default judgment of divorce was filed on August 30, 1976, granting custody of the parties' two minor children to defendant. Plaintiff moved to change custody of one child and requested that defendant be ordered to pay child support and medical and dental expenses when the change of custody became effective. The motion was supported by an affidavit of plaintiff's attorney stating the truth of the matters to the best of his knowledge and on information and belief. Defendant answered, agreeing to the custody change but asserting financial inability to pay support and contending the motion was not properly before the trial court because it was not signed by plaintiff and the affiant lacked first-hand knowledge. The motion was referred to the Friend of the Court over defendant's objection. Plaintiff also sought an order requiring defendant to pay her attorney fees. At hearing the trial court ordered the custody change, required defendant to pay $42 per week in child support, and awarded plaintiff $150 in attorney fees. Defendant appealed.

Legal Issues Presented

  1. Whether the plaintiff's motion seeking change of custody and child support was properly before the trial court given the form and verification of the supporting affidavit.
  2. Whether the trial court erred in awarding attorney fees to plaintiff where plaintiff did not make a factual showing that such an award was necessary to enable her to carry on the action.

Arguments of the Parties

Defendant's Arguments

  • The motion for change of custody and child support was not properly before the trial court because it was not signed by plaintiff and the affidavit supporting it was not made by someone with first-hand knowledge of the facts pleaded.
  • The trial court erred in awarding plaintiff attorney fees because plaintiff made no showing that the award was necessary to enable her to carry on the action.

The opinion does not contain a detailed account of any separate, specific legal arguments advanced by the plaintiff beyond the factual requests (change of custody, child support, attorney fees) and submission of the affidavit described above.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Irish v Irish, 59 Mich. App. 635; 229 N.W.2d 874 (1975) The standard that this Court hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court where it is clear this Court would have reached a different result. The court invoked this precedent to state the applicable standard of appellate review for the custody modification appeal.
Mixon v Mixon, 51 Mich. App. 696; 216 N.W.2d 625 (1974) Referenced both as support for the de novo appellate review guideline in divorce cases and for the principle that attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. The court relied on this authority for the applicable standard of review and to state the substantive rule limiting attorney-fee awards in domestic relations cases.
Gove v Gove, 71 Mich. App. 431, 434; 248 N.W.2d 573 (1976) The guideline of appellate review is applicable when this Court reviews the award of attorney fees in a domestic relations action. The court cited this case to emphasize how appellate review should be conducted regarding attorney fees and to instruct that the trial court's attorney-fee determinations are subject to that guideline.

Court's Reasoning and Analysis

The court first identified the governing rules for domestic relations proceedings: the special court rules GCR 1963, 721 to 731, and the verification requirement of GCR 1963, 725.1, which mandates that all pleadings seeking affirmative relief in actions described by rule 721 be verified by oath. Because the domestic-relations special rules do not specify the form of verification, the general procedure rule, GCR 1963, 114.3, governs. GCR 114.3 allows verification either by oath or affirmation of the party or of someone having knowledge of the facts pleaded, or by a signed declaration that the statements are true to the best of the declarant's information, knowledge and belief; matters may be stated positively or upon information and belief.

The court observed that GCR 114.3 had been effective in its present form since September 3, 1976, and thus applied to the case. Applying the rule, the court concluded that a custody pleading may be verified by someone other than a party based on information and belief. The affidavit submitted by plaintiff's attorney comported with GCR 114.3, so the motion to amend the divorce judgment was properly before the trial court.

Turning to appellate review standards, the court reiterated that it reviews divorce appeals de novo on the record and will only substitute its judgment when the record shows it clearly would have reached a different result. That guideline applies to review of attorney-fee awards as well. The court then analyzed the statutory and rule authority for attorney-fee awards: MCL 552.13; MSA 25.93 authorizes courts in divorce actions to require payment of sums necessary to enable the adverse party to carry on or defend the action, and GCR 1963, 726.1 permits a request for attorney fees in such actions but requires the moving party to allege facts showing inability to bear the expense without the award and permits the trial judge to require disclosure of fees already paid.

The court applied these principles to the record and found plaintiff's motion for attorney fees deficient: it failed to allege facts demonstrating plaintiff's inability to pay, and the record lacked sufficient information (assets, other income sources, and expenses) for the court to determine need. Plaintiff's answers to interrogatories showed wages but did not provide a complete financial picture. In the absence of necessary factual detail, the appellate court could not independently determine that an attorney-fee award was required.

Holding and Implications

Core Ruling: The trial court's order amending the judgment of divorce is affirmed in part and reversed in part. Specifically, the appellate court affirmed the change in child custody and the award of child support, and set aside the award of attorney fees.

Implications and direct consequences:

  • The custody modification and the order requiring defendant to pay child support (as ordered by the trial court) are left in place.
  • The $150 attorney-fee award to plaintiff is vacated because plaintiff did not present sufficient factual proof of inability to bear the expense of the action.
  • Plaintiff is permitted to file a new motion in the trial court alleging the factual details (assets, other income, expenses, etc.) necessary to support a request for attorney fees; the trial court shall decide any such motion in accordance with the guidelines set forth in Gove v Gove.
  • No costs were awarded to either party, as neither prevailed in full.

Show full summary ...

WHITE v. WHITE

PER CURIAM.

A default judgment of divorce between the parties was filed on August 30, 1976. Custody of the parties' two minor children was granted to defendant.

Plaintiff moved for a change of custody of one of the parties' two children. Plaintiff also requested that the defendant be ordered to pay child support, medical and dental expenses when the change of custody became effective.

The motion for change of custody was supported by an affidavit of plaintiff's attorney stating that the reasons and grounds stated therein were true to the best of his knowledge and that he believed the matters stated on information and belief to be true.

Defendant's answer acknowledged that he agreed to the change in custody proposed by plaintiff. Defendant contended, however, that he was financially unable to contribute support to the child in plaintiff's custody. He further argued that the plaintiff's motion was not properly before the trial court because it was not signed by the plaintiff and there was no showing that the affiant, plaintiff's attorney, had first-hand knowledge of the matter set forth therein.

The plaintiff's motion for change of custody was referred over defendant's objection to the Friend of the Court for a recommendation.

The plaintiff also moved the trial court to order the defendant to pay the attorney fees incurred by her while attempting to effectuate the change of custody order.

At a hearing on the motions, the trial court ordered that custody be changed and that defendant should pay $42 a week for the support of the child in plaintiff's custody. The trial court further ordered the defendant to pay $150 in attorney fees.

On appeal, defendant contends that the plaintiff's motion seeking change of custody and child support was not properly before the trial court because it was not verified by the oath of the plaintiff or someone having knowledge of the facts pleaded. He further argues that the trial court erred in awarding plaintiff attorney fees because she made no showing that the award was necessary to enable her to carry on the action.

A special set of court rules, GCR 1963, 721 to 731, govern domestic relations proceedings, including child custody matters. GCR 1963, 721(6). Unless otherwise specified in these special rules, the procedure in the actions enumerated in GCR 1963, 721, shall follow the general rules of procedure.

GCR 1963, 725.1 provides that all pleadings seeking affirmative relief in actions described in rule 721 shall be verified by oath. The special rules applicable to domestic relations do not, however, contain a provision specifying how a pleading may be verified by oath. Thus, according to GCR 1963, 721, the verification procedure would be governed by the general rule of procedure, GCR 1963, 114.3, which provides:

"(1) If a pleading must be verified:

"(a) it may be verified by the oath or affirmation of the party or of someone having knowledge of the facts pleaded; or

"(b) it may contain the following signed and dated declaration: `I declare that the statements above are true to the best of my information, knowledge and belief'.

"The matters in the pleading must be stated positively or upon information or belief, according to the fact.

"(2) A person who knowingly makes a false declaration under subrule 114.3(1)(b) is in contempt of court."

The foregoing court rule has been effective in its present form since September 3, 1976, and was thus applicable to the case at bar.

The clear import of this rule is that a custody pleading may be verified by someone, other than a party, having knowledge of the facts pleaded; further, this knowledge may be acquired upon information and belief.

The affidavit in support of the plaintiff's motion to change custody appears to comport with GCR 1963, 114.3. Thus, the motion to amend the divorce judgment was properly before the trial court.

This Court hears an appeal in a divorce case de novo on the record and will only substitute its judgment for that of the trial court where it is clear that this Court would have reached a different result had this Court occupied the position of the trial court. Irish v Irish, 59 Mich. App. 635; 229 N.W.2d 874 (1975), Mixon v Mixon, 51 Mich. App. 696; 216 N.W.2d 625 (1974).

This guideline of appellate review is applicable where this Court is reviewing the award of attorney fees in a domestic relations action. Gove v Gove, 71 Mich. App. 431, 434; 248 N.W.2d 573 (1976).

MCL 552.13; MSA 25.93 provides in pertinent part:

"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."

GCR 1963, 726.1 provides in pertinent part:

"(1) In an action for divorce, separate maintenance, annulment, or affirmation of marriage, and in subsequent petitions to modify the judgment, either party may request that the court order the other spouse to pay an attorney the sum specified as necessary to enable that party to carry on or defend the suit.

"(2) The moving party shall allege facts showing that he or she is unable to bear the expense of the action without this aid. The trial judge may require the disclosure of what attorney fees have been paid.

"(3) The court may order, in the judgment or in a separate order, that whatever sum it finds necessary and reasonable be paid to the wife's attorney, either by the husband or out of the assets of the husband over which the court has jurisdiction."

Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Mixon v Mixon, supra, at 702.

Plaintiff's motion for attorney fees failed to allege any facts which support her allegation that she was unable to bear the expense of the action without the award. Moreover, there are not sufficient facts on the record from which this Court could determine her need for an attorney fee award. Plaintiff's answers to the interrogatories submitted by defendant do indicate her wages. However, there is no indication whether plaintiff had assets or income from sources other than wages. Further, there is no record of plaintiff's expenses. In the absence of these facts, this Court cannot make an independent determination of the plaintiff's ability to bear the expense of the action.

The trial court's order amending the judgment of divorce is affirmed insofar as it ordered a change in child custody and payment of child support. The award of attorney fees is, however, set aside. Plaintiff is not precluded from filing a new motion in the trial court setting forth those factors which she believes require defendant to pay an attorney fee. The court shall decide the matter in accordance with the guidelines set forth in Gove v Gove, supra. No costs, neither party having prevailed in full.

Use AI to get other relevant cases.
Try AI Pro free for 7 days Upgrade to AI Pro

Comments

WHITE v. WHITE
(Sep 21, 1978)