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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MICHELE R. MORGAN,

Plaintiff-Appellant/Cross-Appellee,

UNPUBLISHED

August 22, 2017

v No. 331261

Genesee Circuit Court

Family Division

KERRY W. MORGAN, LC No. 13-309220-DM

Defendant-Appellee/CrossAppellant.

Before: SAAD, P.J., and SERVITTO and GADOLA, JJ.

PER CURIAM.

In this divorce action, plaintiff appeals and defendant cross-appeals. Both parties raise 

issues concerning the trial court’s division of marital property, award of spousal support to 

defendant, and award of attorney fees to defendant. For the reasons provided below, we affirm 

in part, reverse in part, and remand.

When the parties married in 1990, defendant brought approximately $440,000 of assets 

into the marriage and plaintiff brought approximately $40,000. Defendant had a high school 

diploma and described himself as being self-employed. He was a licensed real estate broker, but 

he let his license lapse in October 2003. After the license lapsed, defendant continued to work as 

a real estate consultant.

In addition to his real estate dealings, defendant at one time owned a restaurant called 

Pumpernick’s, which eventually closed. Defendant filed bankruptcy, which was finalized around 

2005. Defendant testified that he owed back taxes to the IRS and the state of Michigan in the 

range of $100,000 to $150,000. Further, three creditors were not affected by the bankruptcy. 

Defendant claimed that his total debt at the time of the divorce proceedings was $500,000. 

Defendant explained that the way he tried to make money was to borrow against assets to get 

working capital and then turn that capital into money-making ventures.

At the time of trial, defendant last filed an income tax return in 2001. But he had all of 

the remaining tax returns prepared and ready for filing at the time of trial. For 2001 through 

2006, defendant had no taxable income to speak of because his losses were so high. And his 

income over the last 5 years (2010-2014) averaged $12,438.20. But for the last three years 

(2012-2014), the average was only $2,972.
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Plaintiff is employed as a financial advisor. She previously worked for Smith Barney, 

but in 2009, she moved as part of a team to UBS Financial Services. As part of the deal to move 

to UBS, plaintiff received over $542,308 in up-front money in the form of a loan, where oneninth of the loan was forgiven each following year1 as long as she remained with UBS. 

Additionally, if plaintiff was able to meet certain criteria, she could receive up to $367,542 in 

additional forgivable loans, which again would be forgiven over the course of her employment at 

UBS. Plaintiff ultimately earned all of the bonuses and therefore received $909,850 from UBS 

in the form of forgivable loans. In addition to these “loans,” plaintiff also received her bimonthly pay checks, i.e. “non-transitional income,” which for the four years leading up to trial 

(2011-2014), averaged $155,219 per year.

Due to the significant income discrepancies, there was no real dispute at trial that 

defendant contributed very little to the household expenses in the last ten years.

Many issues in the divorce were settled before the trial concluded. However, the main 

issues the trial court had to resolve included how to value and divide plaintiff’s book of business, 

how to divide her 401(k), how to address allegations that plaintiff dissipated vast sums of marital 

assets, and how to address the parties’ requests for attorney fees.

The trial court valued the book of business at $587,500. Relying on the “concerted effort 

doctrine,” the court awarded defendant 25% of the book’s value, or $146,875. The court noted 

that defendant “contributed and sacrificed little to the Book of Business and this was not an equal 

concerted effort.” With respect to plaintiff’s 401(k),2 the trial court awarded defendant one-half 

of its value of $125,000, or $62,500.

Regarding the dissipation of marital assets, the trial court found that plaintiff dissipated 

assets in the amount of $294,000. The court arrived at this total from her $247,000 in 

withdrawals from her IRA, the $17,000 she received from the sale of a Saab and a truck, and 

$30,000 she took from her 401(k) in the form of a loan. The court further found plaintiff’s claim 

that she spent all of the money she received for household expenses was dubious. The court 

noted that in the five-and-one-half years since she made the move to UBS, she has received over 

$2,000,000 in money from all sources. When taking out the taxes paid during these years, “there 

is no way all the money had actually been spent” as plaintiff claimed. In brief, the court found 

that, in addition to the $294,000 mentioned earlier, plaintiff “depleted [other] marital assets so 

that [defendant] would receive very little.” The court did not provide an explicit amount for this 

additional depletion and instead noted that “there is not sufficient evidence as to where the actual 

goods are that [plaintiff] purchased nor where all the cash withdrawals have gone, which were 

 1 For tax purposes, the amount of any forgiven amount in a given year would be considered 

taxable income for that year. The result is that plaintiff received a large amount of money 

initially, but has to pay taxes on it spread out over the next nine years.

2 In its final opinion/order and judgment, the trial court referred at times to the 401(k) as 

plaintiff’s IRA. This was incorrect, as the record indicated (and the court acknowledged) that the 

IRA had been fully depleted by plaintiff.
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numerous and frequent.” In light of plaintiff’s depletion of marital assets, the court awarded 

defendant the entire $294,000 from the IRA withdrawals, the proceeds from the sale of the two 

vehicles, and the 401(k) withdrawal/loan.

And with respect to the issue of attorney fees, the trial court noted that defendant owes 

over $100,000 in attorney and expert fees and found that pursuant to MCR 3.206(C)(2)(a), he “is 

unable to fully bear the expense of the action” and “[plaintiff] is able to pay.” As a result, the 

court ordered plaintiff to pay defendant $70,000 in attorney fees.

I. DIVISION OF MARITAL PROPERTY

We review a trial court’s factual findings for clear error. Gates v Gates, 256 Mich App 

420, 432; 664 NW2d 231 (2003). A finding is clearly erroneous if the reviewing court is left 

with a definite and firm conviction that a mistake has been made. Id. at 432-433. The trial 

court’s dispositional rulings are discretionary and must be affirmed unless this Court is left with

the firm conviction that it was inequitable. Sands v Sands, 442 Mich 30, 34; 497 NW2d 493 

(1993).

The trial court in a divorce action must divide the marital property between the two 

parties to the divorce. Cunningham v Cunningham, 289 Mich App 195, 200; 795 NW2d 826 

(2010). Hence, in doing so, the court must first determine what property is marital property and 

what property is separate property. Id. “Generally, marital property is that which is acquired or 

earned during the marriage, whereas separate property is that which is obtained or earned before 

the marriage.” Id. at 201. The goal in distributing marital assets in a divorce proceeding is to 

reach an equitable distribution of property in light of all the circumstances. Berger v Berger, 277 

Mich App 700, 716-717; 747 NW2d 336 (2008). The division need not be mathematically equal, 

but any significant departure from congruence must be clearly explained. Id. at 717. To reach 

an equitable division, the trial court should consider (1) the duration of the marriage, (2) the 

contribution of each party to the marital estate, (3) the age of the parties, (4) the health of the 

parties, (5) the life status of the parties, (6) the necessities and circumstances of the parties, (7) 

each parties’ earning ability, (8) the past relations and conduct of the parties, and (9) any other 

equitable circumstances. McDougal v McDougal, 451 Mich 80, 89; 545 NW2d 357 (1996); see 

also Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992). While a court must 

consider all relevant factors, it is not to assign a disproportionate weight to any one 

circumstance. Berger, 277 Mich App at 717.

Because the trial court did not consider the necessary factors in dividing the marital estate 

(e.g., the book of business, the 401(k), and the dissipated marital assets), a remand is necessary.

A. BOOK OF BUSINESS

On appeal, plaintiff argues that the trial court’s award of 25% of the value of her book of 

business to defendant was inequitable. On cross-appeal, defendant argues that it was inequitable 

to award only 25% of the value when 50% is the goal.
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Here, the trial court found that plaintiff’s book of business had a value of $587,500 and 

was a marital asset. Although, at trial, the parties differed greatly on what the value of the book 

of business should be,3 notably, neither party challenges the court’s valuation or its 

determination that the book is a marital asset on appeal. Instead, both parties argue that the court 

erred in how it divided the book of business between plaintiff and defendant. Hence, many of 

the complexities of this issue4 are not implicated on appeal and we need not address them.

Once again, the governing principle “in distributing marital assets in a divorce 

proceeding is to reach an equitable distribution of property in light of all the circumstances.” Id.

at 716-717. “The trial court need not divide the marital estate into mathematically equal 

portions, but any significant departure from true congruence must be clearly explained.” Id. at 

717. Therefore, it is clear that the default position is that defendant would be awarded 50% of 

the value of the book of business. However, an evaluation of the property-distribution factors 

can alter the actual percentage to be awarded.

The trial court relied on Postema v Postema, 189 Mich App 89; 471 NW2d 912 (1991), 

which addressed how the value of a law degree was to be divided in a divorce. Although the trial 

court acknowledged that Postema was not on-point, it opined that the law degree obtained during 

the marriage in Postema was analogous to a spouse’s book of business that was acquired during 

the marriage. The Postema Court noted that “a spouse who did not earn an advanced degree [is 

to] be compensated whenever the advanced degree is the end product of a concerted family effort

involving mutual sacrifice and effort by both spouses.” Id. at 94. The Court further explained 

that 

the concept of “concerted family effort” stresses the fact that it is not the existence 

of an advanced degree itself that gives rise to an equitable claim for 

compensation, but rather the fact of the degree being the end product of the 

mutual sacrifice, effort, and contribution of both parties as part of a larger, longrange plan intended to benefit the family as a whole. [Id. at 95.]

We find that the trial court’s analogy is not pertinent. An advanced degree, like a law 

degree, is not an asset that can be sold.5 On the other hand, a book of business is much different 

and can be sold or transferred. Instead, because the trial court found that the book of business is 

a marital asset, we have no reason to believe that it should be treated differently than any other 

marital asset. See McNamara v McNamara, 178 Mich App 382, 393; 443 NW2d 511 (1989) 

 3 Plaintiff’s expert opined that the book had no value, and defendant’s expert opined that the 

book had a value of $964,000, not factoring in any of plaintiff’s remaining loans with UBS.

4 The complexities include how to value the book as a marital asset when it exists in the context 

of a team or partnership, where the two team members arguably agreed that if they ever parted, 

they were to only take the clients they personally brought to the team, even though they both 

worked with all of the clients. Adding to the complexity, there was evidence that plaintiff only 

was responsible for bringing approximately 10% of the clients into the team.

5 Although a law firm or practice can be sold.
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(holding that the defendant’s law practice had value and that the trial court is to award one-half 

of its value to the plaintiff on remand). Again, generally, the difficulty arises in how to evaluate

a book of business, but no such difficulty appears here. The question before us is how this asset

is to be divided.

Here, the trial court appears to have relied primarily upon the concerted family effort

doctrine as described in Postema. The only fact that the court used to rule that defendant should 

receive 25% of the value of plaintiff’s book of business was that “[defendant] contributed and 

sacrificed little to the Book of Business and this was not a concerted effort.” We do not disagree 

with the trial court’s assessment; the record fully supports the view that defendant contributed 

very little, if anything, to allow plaintiff to acquire and grow her book of business. Defendant’s 

claim that he was a stay-at-home dad and maintained the household is diminished by the fact that 

plaintiff hired a full-time nanny until the oldest child reached the age of 16. Further, there was 

evidence that in addition to a nanny, other household tasks were hired out, including house 

cleaning, lawn maintenance, and snow removal. While defendant certainly contributed 

“something” to the household, to equate his contributions to that of a “traditional” full-time, stayat-home mother who is responsible for maintaining an entire household (with no nanny assisting) 

is specious.

In any event, this “lack of contribution” to the book of business would only be one

relevant factor to consider. Specifically, this fact would seem to fall under factor (2) (the 

contribution of each party to the marital estate) and/or (9) (any other equitable circumstances). 

The trial court should have considered all of the pertinent property-division factors. Nowhere in 

its final opinion/order or in the judgment does the trial court refer to these factors.6 Accordingly, 

we reverse the award of 25% of plaintiff’s book of business to defendant and remand for the trial 

court to perform and place on the record the proper analysis. See Sparks, 440 Mich at 160 

(holding that because the trial court fashioned a property division solely based on “fault,” it did 

not consider all the relevant factors and a remand was necessary). This is not to say that the trial 

court cannot come up with the same 25% allocation, but any allocation must be done after a 

consideration of all relevant factors and not merely the fact that defendant contributed little to the 

book of business.

B. 401(k)

The trial court awarded defendant one-half of the balance of plaintiff’s 401(k). The court 

found that the 401(k) had a balance of approximately $125,000, which meant that defendant was 

awarded $62,500.

Although this was an equal division of a marital asset, the same problems that existed 

with respect to the division of the book of business exist here. The trial court did not refer to or 

rely on the property-distribution factors. Accordingly, we reverse the award of half of the 401(k) 

 6 This omission is especially telling when the trial court did list and include the factors it must 

consider on the issue of spousal support.
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to defendant and remand for the trial court to conduct a proper analysis and make a record of the 

same.

C. DISSIPATED MARITAL ASSETS

Plaintiff argues that the trial court erred when it determined that certain withdrawals from 

her IRA and 401(k) constituted the “dissipation” of marital assets. Although we disagree, once 

again, a remand is necessary.

When dividing the marital estate between the parties, the first task of the trial court is to 

determine what the marital estate is. Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 

1 (1997); see also Cunningham, 289 Mich App at 201. However, “when a party has dissipated 

marital assets without the fault of the other spouse, the value of the dissipated assets may be 

included in the marital estate.” Woodington v Shokoohi, 288 Mich App 352, 368; 792 NW2d 63 

(2010) (emphasis added).

Here, the trial court found that plaintiff dissipated $294,000 of marital assets, plus an 

undetermined amount. The $294,000 amount was based on plaintiff withdrawing the entirety of 

her IRA (which totaled $247,000 in withdrawals), plus $17,000 from the sale of two vehicles and 

$30,000 from a loan she took from her 401(k). Also, the trial court was “satisfied that [plaintiff] 

depleted significant additional monies.”7 The court then awarded defendant the entirety of the 

$294,000 depleted assets.8 Therefore defendant was awarded 100% of these marital assets that 

were dissipated.

We do not find persuasive plaintiff’s claim that some of her withdrawals from her IRA 

and the 401(k) loan should not have been considered to be the dissipation of marital assets. 

Plaintiff asserts that the IRA withdrawal to pay Neil Helmkay $40,000 and the IRA withdrawals 

and 401(k) loan to pay (or invest) for their sons’ college educations cannot be categorized as the 

dissipation of marital assets. Plaintiff’s argument is misguided because the trial court implicitly 

found that plaintiff had other resources to pay these expenses without having to resort to the IRA 

or 401(k). Thus, the purpose for these withdrawals is not pertinent. Consequently, the trial court 

 7 Although the trial court did not give a value to this amount of additional depletions, it cited in 

its opinion that during the five-and-one-half years since plaintiff made the transition to UBS, she 

has received over $2,000,000 in funds. When accounting for $200,000 spent on house 

remodeling and the taxes she had to pay during this time, “there is no way all the money had 

actually been spent,” as plaintiff claimed. The trial court then cited favorably the exhibits that 

defendant provided, which demonstrated that there was approximately $760,000 to $1,000,000 in 

unaccounted funds.

8 We note that in this section of the trial court’s opinion, which addressed the dissipation of 

marital assets, the court awarded defendant one-half value of plaintiff’s 401(k). Because the 

division of that marital asset was not related to the dissipation of assets, it probably should have 

been discussed elsewhere to avoid confusion.
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finding that the entirety of the IRA withdrawals and the 401(k) loan were to be considered part 

of the marital estate is not clearly erroneous.

Regardless, we note that awarding defendant 100% of the dissipated assets normally 

would be incorrect because the fact that a party dissipated marital assets does not automatically 

mean that the other party is to receive all of those assets. Instead, the amount dissipated merely 

is considered part of the marital estate (although the funds are no longer present as they have 

been dissipated) where the goal is to divide the marital estate in an equitable fashion. Thus, an 

equitable division of these assets typically would be 50% (or $147,000) to defendant, not 100% 

(or $294,000).9

However, again, the trial court did not acknowledge any of the property-distribution 

factors. Indeed, the trial court did not provide any rationale for why defendant was to receive 

100% of those dissipated marital assets. Thus, we do not know if the court erroneously thought 

that the non-offending party is to receive 100% of dissipated assets or if the court thought that 

$294,000 was equitable because it found that plaintiff dissipated at least $760,000. Accordingly, 

we reverse the award and remand for the court to consider the relevant factors. Furthermore, if 

the trial court on remand is to rely on an amount other than $294,000 for the amount of 

dissipated assets, then it needs to assign an actual value to that amount.

D. CONFUSION IN THE JUDGMENT

Plaintiff also suggests that there is “confusion” in the judgment of divorce because it says 

in one part that defendant is awarded one-half the value of the 401(k)10 but later provides that 

defendant receives the entire 401(k). We understand plaintiff’s concern, but we see no issue. 

The trial court awarded defendant one-half of the non-dissipated 401(k), which results in 

$62,500. The trial court further ordered that plaintiff pay defendant $294,000 due to her 

dissipation of marital assets, for a total of $356,500 concerning these assets. To pay for this 

$356,500, defendant was to receive the full 401(k), which is approximately $125,000, plus the 

remaining $231,500 in cash. Thus, although defendant was awarded one-half of the 401(k), he 

was to receive the entire 401(k) to compensate for other marital assets. Although it could be 

somewhat confusing, the trial court’s methodology and direction was clear.

However, there exists confusion with regard to the trial court’s references to plaintiff’s 

IRA when it should have referenced plaintiff’s 401(k). Therefore, on remand, the trial court is to 

amend its judgment of divorce to accurately reflect that the IRA is indeed depleted and that the 

account with the $125,000 balance that is subject to property division is the 401(k).

II. SPOUSAL SUPPORT/HEALTH INSURANCE

 9 However, if the trial court relied on the fact that plaintiff dissipated at least $760,000, the 

percentage awarded to defendant would be closer to 50%.

10 Again, the trial court technically referred to plaintiff’s IRA, but in actuality, it meant the 

401(k) because it knew that the IRA was already depleted and had nothing left.
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Plaintiff argues that the trial court erred when it awarded spousal support to defendant, 

and on cross-appeal, defendant argues that the trial court should have awarded more. Defendant 

further argues that the court erred when it only ordered plaintiff to pay for one year of 

defendant’s health insurance when she was required to pay for two years of spousal support.

A trial court’s factual findings are reviewed for clear error. Gates, 256 Mich App at 432. 

A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction 

that a mistake has been made. Id. at 432-433. The trial court’s dispositional ruling regarding 

spousal support is discretionary and the must be affirmed unless this Court is left with the firm 

conviction that it was inequitable. Berger, 277 Mich App at 727.

“The main objective of alimony is to balance the incomes and needs of the parties in a 

way that will not impoverish either party. Alimony is to be based on what is just and reasonable 

under the circumstances of the case.” Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 

(2000) (citations omitted). When making this determination, a trial court should consider the 

following factors:

(1) the past relations and conduct of the parties, (2) the length of the marriage, (3) 

the ability 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. [Berger, 277 

Mich App at 726-727.]

Here, the trial court based its award after a review of these 14 factors. Notably, the court 

found that both parties cared for the children and both contributed to the marital estate, with 

defendant contributing more in the early portion of the marriage and plaintiff contributing more 

during the latter portion. In its final analysis, the trial court stated:

The bottom line is that this is a 25 year marriage in which [plaintiff] has proven 

herself to be a successful, licensed analyst. Her employment appears to be secure. 

[Defendant] has always been self-employed, needs to renew his real estate 

license, and needs capital to continue his self-employment. With a good work 

ethic, he “may” become financially successful once again, however he will need 

additional time.

As a result, the trial court ordered plaintiff to pay defendant spousal support in the 

amount of $1,500 per month for 24 months, with defendant having the option to petition the 

court before the end of the 24-month period to request further spousal support, if needed.

In her brief on appeal, plaintiff does not identify any errors in the court’s particular 

factual findings. Instead, her argument is that the court simply selected the wrong result when it 

awarded the spousal support. Defendant, in his brief on cross-appeal, similarly does not 
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challenge any specific court finding and instead argues that due to equitable principles, the trial 

court should have awarded permanent spousal support.

We do not have a firm conviction that the trial court’s award of 24 months of spousal 

support to defendant was inequitable. The court found, and neither party challenges, that 

plaintiff has a yearly income of $160,000 and defendant has an income of $45,600 for purposes 

of spousal support. And although $1,500 per month may seem like a small amount in light of the 

income disparity, it is important to note that defendant was to receive two billboards as part of 

the parties’ agreement, with one immediately providing income of $2,500 per month, and the 

other having the potential to generate $1,300 per month. The trial court also stressed that 

defendant was capable of working and earning an income, but he needed time to reacquire his 

real estate broker license and time to acquire working capital to fund his real estate endeavors. 

In light of these concerns, the trial court’s decision to grant a modest $1,500 per month for 24 

months appears to be fair and equitable. Further, the fact that the court allowed defendant to 

petition the court to extend or modify the spousal support was a very reasonable way to ensure 

that defendant would not be left impoverished at the end of the two-year period. Consequently, 

we hold that the trial court did not abuse its discretion in the grant of 24 months of spousal 

support.

On cross-appeal, defendant also argues that it was erroneous for the court to order 

plaintiff to pay for only one year of health insurance. This is a much closer question, but in light 

of the court’s other property rulings, we cannot say that this amounts to an abuse of discretion.

III. ATTORNEY FEES

Plaintiff argues that the trial court erred when it awarded any attorney fees to defendant, 

and defendant argues that the trial court should have ordered plaintiff to pay the entirety of his 

legal fees instead of a portion. We review a trial court’s decision to award attorney fees for an 

abuse of discretion. Stoudemire v Stoudemire, 248 Mich App 325, 344; 639 NW2d 274 (2001). 

But the trial court’s factual findings are reviewed for clear error. Reed v Reed, 265 Mich App 

131, 164; 693 NW2d 825 (2005).

A party to a divorce action is not entitled to attorney fees as of right. Id. But under MCL 

552.13 and MCR 3.206(C), attorney fees may be awarded “when a party needs financial 

assistance to prosecute or defend the suit.” Id. MCR 3.206(C)(2)(a) provides that in order to 

successfully request attorney fees, a party must show that he is unable to bear the expense of the 

action and that the other party is able to pay. Here, the trial court relied on and cited MCR 

3.206(C)(2)(a) and found that “[Defendant] is unable to fully bear the expense of the action and 

that [plaintiff] is able to pay.”

On appeal, plaintiff argues that the trial court erred when it awarded attorney fees to 

defendant because the court failed to conduct a hearing on the reasonableness of the fees. 

Plaintiff reliance on Reed is misplaced. In Reed, the trial court did not rely on one party’s need 

and the other party’s ability to pay; instead, the trial court awarded the defendant attorney fees 

under the common law, which allows for the imposition of attorney fees when such fees were 

incurred as a result of the other party’s unreasonable conduct in the course of the litigation. 

Reed, 265 Mich App at 164-165. The Reed Court noted that “[the] plaintiff submitted no 
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evidence regarding what fees were actually incurred because of [the] defendant’s misconduct, 

and the trial court made no finding in that regard or concerning the reasonableness of the fees 

incurred because of misconduct.” Id. at 166. Hence, the trial court in Reed abused its discretion 

when it awarded attorney fees based on one party’s misconduct causing the other party to incur 

attorney fees, when the court did not make any findings that connected any particular fees to any 

misconduct. Here, no such findings were required because, while the trial court earlier 

referenced that plaintiff’s misconduct outweighed that of defendant’s during the litigation, the 

court’s opinion makes it clear that it awarded attorney fees solely on the basis of need. The court 

explained:

While attorney fees are not recoverable as of right in divorce actions, they 

may be awarded when a party needs financial assistance to prosecute or defend[] 

the suit. It is well settled that a party should not be required to invade assets to 

satisfy attorney fees when the party is relying on the same assets for support. In 

this case, [plaintiff] enjoys a comparatively substantial income advantage over 

[defendant].

From the evidence presented, [defendant] has claimed miscellaneous debts 

of over $250,000, estimated IRS and state taxes of about $150,000, and legal and 

expert witness fees owing pursuant to these divorce proceedings in the amount of 

$104,000.

The court is satisfied pursuant to MCR 3.206(C)(2)(a) that [defendant] is 

unable to fully bear the expense of the action and that [plaintiff] is able to pay.

Therefore, plaintiff’s argument that the trial court erred when it failed to make any 

findings related to the reasonableness of the fees is not persuasive. We also note that in 

plaintiff’s reply to defendant’s post trial-brief, wherein defendant spelled out his request for 

attorney fees, plaintiff never contested the reasonableness of the amounts that were purportedly 

owed. Thus, there was no need for the trial court to conduct a hearing on the reasonableness 

when the reasonableness was not challenged. See Miller v Meijer, Inc, 219 Mich App 476, 480; 

556 NW2d 890 (1996) (stating that a hearing on reasonableness of attorney fees is only needed 

when the reasonableness of the fees is challenged). Additionally, when a trial court has 

sufficient evidence to determine the amount of attorney fees, no evidentiary hearing is required. 

John J Fannon Co v Fannon Products, LLC, 269 Mich App 162, 171; 712 NW2d 731 (2005). 

Defendant submitted a breakdown of his $104,000 in attorney and expert fees to the trial court. 

Accordingly, plaintiff has failed to show that the trial court abused its discretion.

On cross-appeal, defendant argues that he should have been awarded the entirely of his 

attorney fees instead of only $70,000. The trial court found that defendant owed at least 

$104,000 in attorney and expert fees. Consequently, the court implicitly found that defendant 

could afford to pay in excess of $24,000 in attorney fees. Because defendant received the 

billboard income ($30,000 per year immediately and potential for $15,600 more per year), 
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spousal support ($18,000 per year for two years), and over $500,00011 in liquid assets from 

property distribution, we are not convinced that the trial court erred. Though defendant has a 

tremendous amount of additional debt, requiring him to pay for some of his attorney fees in these 

circumstances is not an abuse of discretion.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this 

opinion. We do not retain jurisdiction. No taxable costs, as neither party prevailed in full.

/s/ Henry William Saad

/s/ Deborah A. Servitto

/s/ Michael F. Gadola

 11 $53,000 (from stipulation of house and associated property) + $294,000 (dissipation of 

assets) + $146,875 (book of business share) + $62,500 (401(k) share) = $556,375.

Of course, because we are reversing the trial court’s present award of $294,000 for the 

dissipation of assets, the $146,875 award for the book of business, and the $62,500 award for the 

401(k), the trial court is going to re-evaluate how much of these amounts defendant is to receive 

in property distribution. Thus, the amount defendant is to receive could go up or down on 

remand. If it goes down significantly from what the trial court initially determined, then the trial 

court is to re-examine whether the $70,000 it awarded to defendant in attorney fees is sufficient 

under the new circumstances.