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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

JOHN MILANOWSKI,

Plaintiff-Appellant,

UNPUBLISHED

August 21, 2018

v No. 338793

Oakland Circuit Court

BRENDA BARLOW, LC No. 2007-731294-DO

Defendant-Appellee.

Before: CAMERON, P.J., and RONAYNE KRAUSE and TUKEL, JJ.

PER CURIAM.

Plaintiff appeals an order granting defendant’s motion to release escrow funds to pay 

property taxes to the Bahamian government and to pay attorney fees for Bahamian counsel in 

this domestic relations dispute. We affirm.

On appeal, plaintiff argues that the trial court erred when it ordered plaintiff to pay all of 

the attorney fees for Bahamian counsel retained by defendant to dispute property taxes owed on 

marital property located in the Bahamas, known as “Villa Tatutina” (the villa), which was owned 

by both parties. Plaintiff claims error because he was not solely responsible for the property 

taxes, he did not cause the tax dispute, there was no evidence regarding plaintiff’s ability to pay, 

and the trial court should have held an evidentiary hearing. We disagree.

A trial court’s award of attorney fees and costs is reviewed by this Court for an abuse of 

discretion. Souden v Souden, 303 Mich App 406, 414; 844 NW2d 151 (2013). “ ‘An abuse of 

discretion occurs when the trial court’s decision is outside the range of reasonable and principled 

outcomes.’ ” Id., quoting Smith v Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). This 

Court reviews findings of fact upon which the trial court bases an award of attorney fees for clear 

error. Cassidy v Cassidy, 318 Mich App 463, 479; 899 NW2d 65 (2017). “ ‘A finding is clearly 

erroneous if we are left with a definite and firm conviction that a mistake has been made.’ ” Id., 

quoting Gates v Gates, 256 Mich App 420, 432-433; 664 NW2d 231 (2003).

I. JURISDICTION

Plaintiff asserts that this Court has jurisdiction over his appeal pursuant to MCR 7.203(A) 

as an appeal of right and that the attorney fees were awarded in the lower court pursuant to MCL 

552.13 and MCR 3.206(C)(1). Defendant raises a jurisdictional challenge on appeal, arguing 

that the order appealed from is not a final order, and plaintiff should have filed an application for 
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leave to appeal. Defendant argues that the attorney fees were not awarded pursuant to MCL 

552.13, MCR 3.206(C), or pursuant to MCR 2.403, 2.405, 2.625 or any other law or court rule 

required by MCR 7.202(6)(a)(iv) to be a final order.

Defendant refers to the order appealed from as a “postjudgment order” in her brief on 

appeal but then asserts that the order is not appealable as of right pursuant to MCR 

7.202(6)(a)(iv) because attorney fees were not awarded or denied “under MCR 2.403 (governing 

the case evaluation process), 2.405 (offers of judgment), [or] 2.625 (governing taxable costs and 

frivolous actions under MCL 600.2591).” While we agree with defendant’s interpretation of the 

court rule, we disagree with her application of it because defendant has not demonstrated that the 

postjudgment order requiring plaintiff to pay attorney fees does not fall under any other law or 

court rule.

“In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, 

and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). 

MCL 522.13(1) provides:

In every action brought, either for a divorce or for a separation, the court 

may require either party . . . 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.

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 7.202(6)(a)(iv) defines “final judgment” or “final order” in a civil case as “a postjudgment

order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625 or other law 

or court rule.” 

The Bahamian attorney fees fall under MCL 552.13(1) because they were necessary for

defendant to carry on and defend the ongoing and tumultuous litigation regarding the villa. The 

parties owed over $800,000 in back taxes, and when the trial court ordered defendant to take 

over all management duties of the villa, she hired a Bahamian attorney to dispute the amount of 
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taxes owed. This resulted in a substantial decrease in the amount of property taxes owed by the 

parties. In arguing that the legal fees did not fall under MCR 7.202(6)(a)(iv), defendant asserted 

that the Bahamian attorney fees are “more akin to costs and management fees than to the type of 

legal fees that are appealable by right pursuant to MCR 7.202(6)(a)(iv).” MCL 552.13 allows 

the trial court to award “costs” against either party, and may direct that such costs be paid out of 

property in the hands of a receiver. The court ordered that plaintiff be responsible entirely for 

the Bahamian attorney fees and ordered that the fee be taken from the escrow funds in the hands 

of the receiver that contained the remaining amount of proceeds from the sale of the commercial 

property owned by plaintiff. The lower court could take this action pursuant to MCL 552.13. 

Additionally, defendant requested that the escrow funds be released to pay for the 

Bahamian attorney fees in her emergency motion, which was a postjudgment proceeding. MCR

3.206(C)(1). She argued that she was unable to pay for the fees because she was 78 years old, 

and plaintiff was still in arrears for payments due pursuant to the property settlement agreement; 

but, plaintiff was able to pay for the attorney fees because of the remaining amount in the escrow 

account, MCR 3.206(C)(2)(a). Thus, the order appealed from may properly be considered a 

postjudgment order awarding attorney fees under MCL 552.13 and MCR 3.206(C), and 

therefore, is appealable as of right pursuant to MCR 7.202(6)(a)(iv). Therefore, defendant’s 

jurisdictional challenge on appeal fails.

II. AWARD OF ATTORNEY FEES

In domestic relations matters, “attorney fees are not recoverable as of right . . . . [and] 

may be awarded only when a party needs financial assistance to prosecute or defend the suit.” 

Reed, 265 Mich App at 164 (citations omitted). Attorney fees may also be awarded “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 v Hanaway, 208 Mich App 278, 298; 527 NW2d 

792 (1995). Any award of fees is within the discretion of the trial court. Borowsky v Borowsky, 

273 Mich App 666, 687; 733 NW2d 71 (2007). 

In this case, plaintiff repeatedly violated the consent judgment of divorce and property 

settlement agreement by failing to make the required payments to defendant, and he repeatedly 

violated court orders requiring him to pay defendant, maintain the villa, and not interfere with 

defendant’s time at the villa. Therefore, the trial court was justified in ordering plaintiff to pay 

the Bahamian attorney fees. The court ordered that plaintiff was solely responsible for the 

attorney fees because the tax dispute litigation greatly benefited plaintiff by decreasing the 

amount of property taxes owed by approximately $600,000. Thus, the court ordered that the 

attorney fees be paid from the escrow account that was funded by the sale of plaintiff’s

commercial property.

Although defendant received a disbursement from the escrow fund after the sale of the 

commercial property, the amount that plaintiff owed defendant continued to accrue under the 

property settlement agreement because the villa had not sold. “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.” Gates, 256 Mich App at 438. Defendant would have had to use her 

disbursement from the lien against the commercial property to pay the attorney fees. Pursuant to 
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the October 5, 2015 opinion and order, the lien would be used to satisfy the property taxes, but it

did not account for the Bahamian attorney fees. Defendant incurred the Bahamian attorney fees 

due to the nonpayment of the property taxes for several years. Although the taxes were to be 

split between the parties upon the sale of the villa, the property was never sold. The villa was 

under the exclusive management and control of plaintiff from 2007 until 2015, and plaintiff was 

responsible for the ongoing expenses of the property. Although plaintiff was not required to pay 

the property taxes pursuant to the property settlement agreement during this time, it was not until

defendant took over the management of the villa that the tax amount was disputed and reduced. 

Thus, the trial court’s decision ordering plaintiff to pay the attorney fees was not an abuse of 

discretion.

In this case, the attorney fees are not fees associated with the representation in the divorce 

proceedings, but rather are costs associated with the distribution of marital assets. This Court 

has upheld orders requiring the payment of professional fees for other services necessary to 

enforcing the judgment of divorce. In Ianitelli v Ianitelli, 199 Mich App 641, 645; 502 NW2d 

691 (1993), we affirmed the trial court’s decision to require the plaintiff husband to pay a portion 

of the defendant wife’s accountant’s fees pursuant to MCL 552.13. We held that it was not an 

abuse of discretion for the trial court to order the accountant’s fees be paid wholly by the 

plaintiff because those fees were incurred as a result of the plaintiff’s resistance to pay the 

defendant alimony for four years. Id. In this matter, both parties incurred the tax bill for back 

taxes on the villa. However, defendant asserted that plaintiff purposely did not pay the tax bill. 

Plaintiff was charged with managing the property from 2007 to 2015 and, although not explicitly 

ordered to pay the taxes under the property settlement agreement, doing so was necessary to 

properly managing the property. Because the property taxes remained unpaid when defendant

assumed management of the property in 2015, she was forced to hire Bahamian counsel to 

dispute the amount owed in taxes.

The trial court did not err in failing to hold an evidentiary hearing regarding the 

Bahamian attorney fees. Generally, the party who requests a postjudgment award of attorney 

fees must demonstrate that the attorney fees were reasonably incurred. McIntosh v McIntosh, 

282 Mich App 471, 483; 768 NW2d 325 (2009). “When requested attorney fees are contested, it 

is incumbent on the trial court to conduct a hearing to determine what services were actually 

rendered, and the reasonableness of those services.” Reed, 265 Mich App at 166. However, 

“there is no error in failing to conduct an evidentiary hearing if ‘the parties created a sufficient 

record to review the issue, and the court fully explained the reasons for its decision.’ ” Cassidy, 

318 Mich App at 488 (citation omitted). 

Although plaintiff argues that the trial court erred in failing to hold an evidentiary 

hearing, plaintiff never contested the Bahamian attorney fees in the lower court. Moreover, he 

did not contest them in his response to defendant’s emergency motion to release the funds to pay 

the taxes and attorney fees, and he did not challenge them at the motion hearing. Plaintiff did not 

contest the billing invoice submitted by defendant. Rather, he argued that defendant should be 

required to pay 40% of the incurred attorney fees. Plaintiff praised the work of the Bahamian 

attorney and argued that the attorney’s successful reduction of the property taxes demonstrated 

that it was appropriate that neither party ever paid the back taxes when they were miscalculated. 
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Because plaintiff never challenged the fact that the Bahamian attorney fees were actually 

incurred, or their reasonableness, the trial court was not required to hold an evidentiary hearing. 

Reed, 265 Mich App at 166. 

Affirmed.

/s/ Thomas C. Cameron 

/s/ Amy Ronayne Krause 

/s/ Jonathan Tukel