Anika Marie Atkinson v. Maurice Wayne Atkinson II ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ANIKA MARIE ATKINSON, UNPUBLISHED
January 27, 2022
Plaintiff/Counterdefendant-Appellee,
v No. 357446
Ingham Circuit Court
MAURICE WAYNE ATKINSON II, Family Division
LC No. 20-001549-DM
Defendant/Counterplaintiff-Appellant.
Before: CAMERON, P.J., and M. J. KELLY and SHAPIRO, JJ.
PER CURIAM.
Defendant, Maurice Wayne Atkinson II, appeals as of right the judgment of divorce
dissolving his marriage to plaintiff, Anika Marie Atkinson, and granting her sole legal and physical
custody of their minor child, HA. For the reasons stated in this opinion, we affirm.
I. BASIC FACTS
The parties married in May 2017. HA was born approximately one year later. HA is
Anika’s only child; however, Maurice has joint custody of four children from a prior marriage,
with parenting-time occurring on a week-on/week-off schedule. During their marriage, Maurice
and Anika assumed traditional roles, with Maurice working and Anika focusing on taking care of
the household and providing care for HA and for Maurice’s other children on weeks when he had
custody of them.
According to Maurice, the marriage began to breakdown in January 2020 after Anika had
an abortion even though he wanted her to carry the pregnancy to term. He stated that after the
abortion, he thought “Eff this” and began to have extramarital affairs. Additionally, Maurice
testified that Anika had a “proclivity for violence,” and recounted that she punched him in the head
several times after he finally told her that he was having affairs. He testified that, if HA had not
been present, he “woulda knocked the slam out of her.” Maurice added that if he had hit Anika,
he would have been better at hurting her than she was at hurting him.
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In contrast, Anika described several incidents in which Maurice perpetrated domestic
violence against her. First, on New Year’s Eve in 2016, Maurice was leaving the house right
before midnight, and Anika grabbed his arm and told him to wait until later. She testified:
And he flipped my arm off of him and grabbed me by my shoulders and slammed
me against the wall in our bathroom . . . and said to “Keep my fucking hands to
myself.” And I pushed him off of me and said, “Don’t touch me like that. Don’t
grab me like that.” And he said that—his comment was, “That’s the problem with
you women. You do something, and then when we react, now we’re the problem.”
The next incident was in August 2017. Maurice “was playing Magic and came home and was
mad.” He punched a wall, and Anika “made a comment about it like, ‘Does that make you feel
good?’ ” “And he told me to shut up and that if I kept talking that he was gonna beat my ass.”
Maurice then shoved her from behind, and Anika fell down and hit her head on the floor.
Another incident occurred the following March. Anika was pregnant with HA, they got
into an argument about what to name her, and Maurice flipped the living room couch toward
Anika. In August 2018, Maurice and Anika were having an argument about the frequency with
which Maurice was not home. During the argument, Maurice threw a bench at the wall, putting a
hole in it. Anika heard HA begin to cry in the other room and went to comfort her, but Maurice
blocked the door so that she could not leave the bedroom. Anika threatened to call the police, and
Maurice encouraged her to do so. Anika testified that Maurice then said, “[T]he next time I go to
jail, it’s gonna be worth it. We’re both gonna leave today. I’ll leave in handcuffs, and you can
leave in a body bag.” Maurice retrieved HA, put her on the bathroom floor, and allowed her to
continue crying on the bathroom floor. Maurice then threatened to kill Anika if she did not “shut
up.” Another incident occurred in September 2019. HA was throwing her food on the floor and
Maurice slapped HA’s hand. Anika then yelled at Maurice and called him an “asshole.” Maurice
tackled Anika over the side of the couch and told her to “shut up.” Anika screamed out, and HA
said, “Momma.” Maurice made Anika go down to the basement, and Anika attempted to use her
smart watch to call 911. Maurice knocked Anika down, pulled off her watch, and swung her laptop
at her, striking her arm. Anika called a friend for help, and they took pictures of the bruises on her
arm.1
The final act of domestic violence between the parties was the incident on July 12, 2020.
When Maurice admitted to having had multiple affairs, Anika punched Maurice several times, and
Maurice threatened to kill Anika. Following that incident, Anika obtained a personal protection
order (PPO) against Maurice.
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Maurice testified that the bruises in the photograph were likely from Anika holding a shopping
bag on her wrist, and he claimed that she bruised very easily. He stated that whenever Anika
showed him a bruise he directed her to “annotate it” because he did not want her to lie and say it
was him that caused it. Neither the referee nor the judge at the de novo hearing found his testimony
credible.
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Anika filed a complaint for divorce on July 31, 2020. She requested sole legal and physical
custody of HA. In response, Maurice filed a counterclaim for divorce, and he requested joint legal
and physical custody with a week-on/week-off parenting-time schedule. On August 25, 2020, the
trial court entered a temporary order granting the parties joint legal custody, and granting Anika
sole physical custody. Thereafter, a hearing was held before a referee. The referee recommended
that Anika receive sole legal and physical custody, with Maurice receiving parenting time on
alternating weekends and Wednesday evenings. Maurice filed objections to the recommendation
and requested a de novo hearing on the custody matter. Following the de novo hearing, the trial
court found that Anika’s testimony was credible, but did not find Maurice to be credible. The
court determined that an established custodial environment existed solely with Anika. Thereafter,
the court found that the best-interest factors in MCL 722.23 favored Anika receiving sole physical
custody of HA, and that sole legal custody was proper under MCL 722.26a. In reaching a parent-
time decision, the court made findings under MCL 722.27a.
Additionally, a bench trial was held to determine non-custody matters related to the
divorce. As relevant to this appeal, the trial court valued certain personal property in the marital
home at $5,000 and awarded Anika $17,000 in attorney fees. The court also determined that
Maurice’s income for purposes of calculating child support was $180,531.96. This appeal follows.
II. CUSTODY AND PARENTING TIME
A. STANDARDS OF REVIEW
MCL 722.28 provides that when reviewing a lower court order in a custody dispute, “all
orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made
findings of fact against the great weight of evidence or committed a palpable abuse of discretion
or a clear legal error on a major issue.” This statute “distinguishes among three types of findings
and assigns standards of review to each.” Dailey v Kloenhamer, 291 Mich App 660, 664; 811
NW2d 501 (2011) (quotation marks and citation omitted). Factual findings “are reviewed under
the ‘great weight of the evidence’ standard.” Id. “A finding of fact is against the great weight of
the evidence if the evidence clearly preponderates in the opposite direction.” Pennington v
Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019). “Questions of law are reviewed for
clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets, or
applies the law.” Id. (quotation marks and citation omitted). “Discretionary rulings, such as to
whom custody is awarded, are reviewed for an abuse of discretion. An abuse of discretion exists
when the trial court’s decision is palpably and grossly violative of fact and logic. . . .” Dailey, 291
Mich App at 664-665 (quotation marks and citations omitted). “This Court gives deference to the
trial court’s factual judgments and special deference to the trial court’s credibility assessments.”
Brown v Brown, 332 Mich App 1, 9; 955 NW2d 515 (2020).
B. ANALYSIS
1. ESTABLISHED CUSTODIAL ENVIRONMENT
Maurice argues that the trial court erred by finding that there was an established custodial
environment only with Anika. “When resolving important decisions that affect the welfare of the
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child, the court must first consider whether the proposed change would modify the established
custodial environment.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010).
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency of
the relationship shall also be considered. [MCL 722.27(1)(c).]
The trial court found that the established custodial environment existed solely with Anika
because Maurice “did/does not provide care, security, stability, and permanence for [HA] in the
same capacity that [Anika] did/does.” However, whether an established custodial environment
exists with one party should not be determined in relation to the environment that the minor child
has established with the other party because there can be an established environment with both
parties. See Ritterhaus v Ritterhaus, 273 Mich App 462, 471; 730 NW2d 262 (2007) (“[A]
custodial environment can be established in more than one home.”).
The court also found that Maurice did not provide a significant amount of care during the
first six months of HA’s life “and beyond” and that he usually did not attend HA’s doctor’s
appointments. The record supports this finding. Maurice testified that during the first six months
of HA’s life, he would feed her, change her diaper, play with her, hold her on his chest, and sing
to her. He did not bathe her until after she was six months old, and, although he provided money
to purchase items necessary for HA’s care, he testified that he would generally not physically
purchase those items. Moreover, he also testified that HA had a babysitter. He recounted that
sometimes when Anika left HA with him at their house, the babysitter would be present to care for
HA. However, the trial court did not find Maurice’s testimony credible.
Anika testified that the typical routine occurred as follows:
On a typical day, [HA] wakes up around 6:30, 7:00 o’clock. It was my job
to do breakfast, so if she came in, she would come to my side of the bed. This was
her being out of the crib, so she could walk in and out of her room. I would go
downstairs, make everybody breakfast. If all the children were there, everybody
got fed. I made Maurice’s breakfast.
Once breakfast was done, everybody got vitamins. Once we were done with
that, typically I would take [HA] upstairs. We would brush teeth, brush hair, get
dressed. By that time, it’s probably almost 8:30, 9:00 o’clock. She would get to
play for a couple hours. I always did lunch around 11:30.
HA would play with Anika or Maurice’s other children; however, Maurice was typically in his
office if he was at home or was at work if he was not at home. Anika continued, explaining that
lunch was at 11:30 so that it would coincide with when Maurice’s other children had lunch when
they were at daycare. After lunch, HA would take a nap for approximately two hours. “[A]round
2:00, 2:30, she would wake up, have a snack—sit in her high chair and get some sort of snack.”
They would then go pick the older children up from school or daycare, play when they got back to
the house, and then have dinner. Anika stated that Maurice would only sometimes come to dinner,
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and there were multiple times when she would bring him his plate in his office. After dinner,
Anika would clear up and prepare leftovers for Maurice and his children to eat the following day.
If it was a bath night, she would bathe HA and the younger of Maurice’s children. She stated that
“Maurice would either still be in his office or not home.” If he were home, she would direct the
children to say goodnight to him. Most times, he would not come up to assist her in putting the
children to bed. When she put the children to bed, she would sing them songs or read them books.
Anika stated that, at that time, it would be around 8:30, 9:00 o’clock, so she would go to bed as
well.
Anika testified that, in the evenings, when he was working in Grand Rapids, Maurice would
come home around 6:30, but that he would not stay home. She also testified that on Monday,
Wednesday, Friday, Saturday, and Sunday, Maurice would leave to play a card game called
“Magic: The Gathering.” Although it varied, she recalled that on Mondays and Wednesdays, he
would go to the card games straight from work. On Fridays, he would sometimes leave the house
between 4:00 and 7:00 p.m. She recalled that he would sometimes return at 2:00 a.m., 6:00 a.m.,
or noon on the following day, but that, oftentimes he would return at 3:00 a.m. On Saturdays, he
would leave to play around 1:00 and not return until 3:00 or 4:00 a.m. on Sunday. She added that
“typically you wouldn’t see him the rest of the day.” On Sundays, he might come down to have
breakfast, but then he would typically take a nap and sleep most of the day.
The trial court credited Anika’s testimony, which shows that Maurice was almost
completely uninvolved in providing guidance, discipline, the necessities of life, and parental
comfort to HA. HA was a very young child, and, given Maurice’s absence from her daily routine
and from the environment in general, the trial court’s finding that the established custodial
environment existed solely with Anika was not against the great weight of the evidence.
2. PHYSICAL CUSTODY
Maurice next argues that the trial court erred by granting sole physical custody of HA to
Anika. Because Anika’s proposed custody change would not alter the established custodial
environment, she had to show by a preponderance of the evidence that the change was in HA’s
best interests. See Bofysil v Bofysil, 332 Mich App 232, 243; 956 NW2d 544 (2020). “A trial
court must consider the factors outlined in MCL 722.23 in determining a custody arrangement in
the best interests of the children involved.” Id. at 244. On appeal, Maurice challenges the trial
court’s findings under factors (b), (f), (g), (j), (k), and (l).
Factor (b) requires the trial court to consider “[t]he capacity and disposition of the parties
involved to give the child love, affection, and guidance and to continue the education and raising
of the child in his or her religion or creed, if any.” MCL 722.23(b). The trial court found that this
factor favored Anika because Anika was primarily responsible for feeding, bathing, and dressing
HA, because Anika tended to HA during the night, and because Maurice did not show interest
when HA was tested for COVID-19. The court also noted that there was no testimony concerning
who tended to HA when she was sick and that HA was not enrolled in school or extracurricular
activities. Although those findings were supported by the record, Maurice argues that this factor
should have favored the parties equally.
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Maurice testified that he would lie with HA on his chest and that he would sing to her, and
he stated that he openly showed affection to HA. Anika testified that she would hug and kiss HA,
and that they would snuggle. Maurice testified that he tried to teach his daughters that “they’re
powerful, they’re strong, they’re beautiful” and that he put effort into teaching his children that, as
African Americans, they would need to work extra hard to make it in life. With regard to
discipline, Maurice testified that he believed in spanking children and that he would use physical
punishments for his older children such as push-ups, sit-ups, wall sits, and making them walk up
and down the stairs. Maurice testified that Anika had spanked HA twice but that he thus far,
because of her age, had only given her time-outs. The trial court, however, found Anika credible.
Anika testified that she did not believe in physical punishments, whereas Maurice would
spank his children with a belt. She recalled that Maurice once spanked his three-year-old with a
belt so many times that she urinated in her clothing, and he forced her to eat her dinner in the urine-
soaked clothes in order to teach her a lesson. Anika testified that Maurice would force his children
to walk on a treadmill and that he made one of his children do this to lose weight. In light of this
testimony, particularly the testimony pertaining to Maurice’s disciplinary practices, it cannot be
said that the court’s finding that this factor favored Anika was against the great weight of the
evidence.
Factor (f) requires the court to consider the moral fitness of the parties. MCL 722.23(f).
The court found that this factor favored Anika. When considering this factor, courts must consider
moral fitness only in the context of the parent-child relationship. Fletcher v Fletcher, 447 Mich
871, 887; 526 NW2d 889 (1994). “[A] a spouse’s questionable conduct is relevant to factor f only
if it is a type of conduct that necessarily has a significant influence on how one will function as a
parent.” Id. “Thus, the question under factor f is not ‘who is the morally superior adult;’ the
question concerns the parties’ relative fitness to provide for their child, given the moral disposition
of each party as demonstrated by individual conduct.” Id.In finding that this factor favored Anika, the trial court found that Maurice had engaged in
extramarital affairs. Although not normally a reliable indicator of how one would function with
the parent-child relationship, the record in this case reflects that Maurice was having an affair in
part to punish Anika for getting an abortion. Moreover, the trial court found that Maurice
perpetrated domestic violence, including physical and emotional abuse against Anika. Some of
the incidents of domestic violence occurred while Anika was pregnant, while others occurred while
HA was present. Maurice also pleaded guilty to domestic violence and malicious use of an
electronic device as a result of an incident with his ex-wife.2 Finally, there was also testimony that
when returning items of personal property to Anika, he dumped all the items on the ground near
her vehicle. Anika recalled that there were strangers in the vicinity and that the whole incident
2
At trial, Maurice insisted that the only reason he pleaded guilty was because Anika did not want
to go through a trial with him while she was pregnant with HA. He claimed that the basis for the
charges was not his own conduct; rather, the judge that issued a PPO in favor of his ex-wife orally
permitted his behavior even though the written order prohibited his conduct. Finally, he believed
that his ex-wife only brought the charges because shortly after he broke up with her he married
Anika.
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was humiliating. HA was present during this incident. In light of the above, the trial court’s
finding that this factor favored Anika was not against the great weight of the evidence.
The court also found that factor (g)—which addresses the “mental and physical health of
the parties involved”—favored Anika. That finding was not against the great weight of the
evidence. Maurice admitted that he suffered from chronic injuries that were sustained during his
military service. He claimed that these injuries did not interfere with his ability to parent, but
Anika testified that there were days when the pain was too debilitating for him to function. She
explained:
It’s definitely affected his abilities. You know, he can’t control the weather,
he can’t control the pain. When it comes, it comes, and sometimes it has knocked
him out completely to where he’s had to take medication and needed help getting
the medication, getting into bed. And when he’s in bed, he’s in there for—until he
feels better.
And it’s happened quite a few times in our marriage that, you know, he was
just down, and you had to let the kids know, like, “Daddy can’t play right now.”
Like, “Daddy needs his rest.” He’ll go lay down, and, you know, I do what I can
to help.
Moreover, Maurice suffered from adjustment disorder, and Anika testified that this caused him to
have outbursts and anxiety attacks when faced with stressful situations.
Maurice next argues that the trial court erred by finding that factor (j) favored Anika.
Factor (j) requires the court to examine:
The willingness and ability of each of the parties to facilitate and encourage a close
and continuing parent-child relationship between the child and the other parent or
the child and the parents. A court may not consider negatively for the purposes of
this factor any reasonable action taken by a parent to protect a child or that parent
from sexual assault or domestic violence by the child’s other parent. [MCL
722.23(j).]
The court found that this factor favored Anika because Maurice was unwilling to communicate
and was unwilling to cooperate with the parenting-time schedule. Maurice was routinely late for
parenting time exchanges by at least 10 minutes, and there was one incident in which he was 45
minutes late but did not notify Anika that he was running behind. During another exchange, as
explained above, he dumped a bag of Anika’s clothing in the parking lot. Finally, he steadfastly
testified that if he received the parenting-time schedule of his choice, he would be willing to
cooperate by moving the exchange location to a location that would result in a more equitable
travel time between the parties, and he would also be willing to shift the time of the exchange to
earlier in the day so that HA could be transported to Anika’s home before her bedtime. However,
he was unwilling to make any concessions until and unless he received the exact schedule that he
desired. In light of this testimony, the trial court’s finding that this factor favored Anika was not
against the great weight of the evidence.
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The trial court also did not err by finding that factor (k) favored Anika. Factor (k) requires
the court to consider “[d]omestic violence, regardless of whether the violence was directed against
or witnessed by the child.” MCL 722.23(k). As explained above, on New Year’s Eve in 2016,
Anika attempted to stop Maurice from leaving home just before midnight, so he slammed her
against the bathroom wall. In August 2017, Maurice shoved Anika on the ground and she hit her
head on the floor. In August 2018, he flipped a bench against the wall during an argument, causing
HA to cry, and he refused to let Anika leave the room to go and comfort HA. He then threatened
to kill Anika if she called the police. In September 2019, Maurice swung Anika’s laptop at her
and hit her arm. Finally, on July 12, 2020, Anika punched Maurice several times after he admitted
to having had multiple affairs and indicated that he did not intend to stop. He then pinned Anika
on the ground and threatened to kill her. He also candidly admitted that if HA had not been present
he would have “knocked the slam out of” Anika. In addition to the physical altercations, Anika
testified that Maurice would also emotionally abuse her by calling her fat and making her feel
worthless. The trial court’s findings on factor (k) were not against the great weight of the evidence.
Finally, Maurice argues that under factor (l), the catch-all provision, the trial court should
have considered that HA was close with Maurice’s parents and other children and that Maurice
was an excellent father to the other children. However, these are circumstances that are adequately
covered by the other factors that the court considered. HA’s relationship with Maurice’s relatives
could be considered under factors (d) and (e), while his parenting of his other children could be
considered under factors (b) and (c). Thus, the trial court did not err by declining to consider
additional factors.
In light of the above discussion of the best-interest factors, the trial court did not abuse its
discretion by awarding Anika sole physical custody of HA.
3. LEGAL CUSTODY
When determining legal custody, in addition to considering the best-interest factors, the
court should consider “[w]hether the parents will be able to cooperate and generally agree
concerning important decisions affecting the welfare of the child.” MCL 722.26a(1)(b). The best-
interest factors discussed above support the court’s award of sole legal custody to Anika,
particularly because of the allegations of domestic violence that the court found credible. There
was also evidence that Maurice was unwilling to cooperate with Anika. Anika testified that she
and Maurice could not “agree on anything,” that Maurice does “what he wants to do when he wants
to do it,” and that Maurice was unwilling to compromise. Throughout his testimony, Maurice
supported her view of his cooperation. He testified that he had extramarital affairs and, when
asked if he was cheating he would respond, “If I’m—are you leaving me if I cheat? No? Okay,
then it doesn’t really matter, and that’s the end of it.” And, as recounted above, he persistently
testified that he would only be willing to adjust the parenting time exchange location and the time
of the pick-up/drop-off if he received the custody arrangement he wanted. In light of the above,
the trial court did not abuse its discretion by awarding Anika sole legal custody.
4. PARENTING TIME
Next, Maurice argues that the parenting-time determination was erroneous. When
determining the parenting time schedule, courts are directed to consider seven statutorily
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enumerated factors. MCL 722.27a(7). Maurice does not challenge the trial court’s findings under
any of these factors; rather, his sole argument is that the trial court erred by failing to follow the
Michigan Parenting Time Guidelines. Maurice has not offered any authority in support of the
assertion that courts are bound to follow the parenting time guidelines. Indeed, the guidelines
carry the proviso that they are “not the law,” and are instead, a tool designed “to help parents create
a parenting time schedule in the best interests of their child.” Because the trial court was required
to make the determination based on the analysis of the factors set forth in MCL 722.27a(7), and
not the rigid application of a set of non-binding guidelines, and because Maurice had made no
challenge to the court’s findings related to the statutory factors, we find no merit in his challenge
to the parenting-time determination.
III. PERSONAL PROPERTY LEFT IN MARITAL HOME
A. STANDARD OF REVIEW
Maurice argues that the trial court erred by valuing personal property left in the marital
home at $5,000 without having it appraised. “This Court reviews a property distribution in a
divorce case by first reviewing the trial court’s factual findings for clear error, and then
determining whether the dispositional ruling was fair and equitable in light of the facts.” Olson v
Olson, 256 Mich App 619, 622; 671 NW2d 64 (2003). “A finding is clearly erroneous if, after
reviewing the entire record, we are left with the definite and firm conviction that a mistake was
made.” Loutts v Loutts, 298 Mich App 21, 26; 826 NW2d 152 (2012).
B. ANALYSIS
This issue pertains to personal property that remained in the marital home after Anika left.
Those items included treadmills, a snow blower, a lawn mower, an edger, linens, a kitchen table
and chairs, a washer and dryer, a computer, a printer, a shredder, and collectable cards. The trial
court valued this personal property at $5,000 and awarded it to Maurice. Maurice argues that the
trial court should have had the property appraised. “Generally, the party seeking to include a [piece
of property] for distribution in the property settlement bears the burden of proving the reasonably
ascertainable value of the [property].” Magee v Magee, 218 Mich App 158, 165; 553 NW2d 363
(1996). However, the trial court’s finding that Anika had no reasonable means to ascertain the
value of this property was supported by the evidence. After Anika left the home, Maurice changed
the locks and refused to allow Anika to access the home even to retrieve her winter clothing. Even
when Anika obtained a court order commanding Maurice to grant her access to the home to retrieve
her winter clothing, he nonetheless locked most of the doors, and he left out a bag filled with the
belongings he felt that she needed.
Having been left with no reasonable means to ascertain the value of the property, Anika
prepared an exhibit identifying the property and stating what she believed each piece of property
was worth. Although Maurice acknowledged that a few of the items had a value of $1,000, he
believed that the value should be set to zero solely because the items, which were in his possession,
had not been professionally appraised. However, the failure to have an appraisal was not
dispositive in light of the court’s finding that Anika had no reasonable means to ascertain the value
of this property, and the value attributed to the property by the court was supported by Anika’s
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testimony and exhibit showing their worth to be $5,000. Therefore, the court’s valuation of this
property was not clearly erroneous.
IV. INCOME CALCULATION
A. STANDARD OF REVIEW
Maurice next contends that he is entitled to have his child support recalculated because the
trial court miscalculated his income. A trial court’s factual findings underlying its determination
of a child support award are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282,
284; 738 NW2d 264 (2007).
B. ANALYSIS
Maurice argues that the trial court miscalculated his income. With respect to child support,
the trial court found Maurice’s annual income to be $180,531.96. This was the amount that was
calculated by the Friend of the Court investigator and entered into the initial child support order.
The referee described Maurice’s testimony regarding his income as “incredibly unclear” and
therefore concluded that, while there were “lingering questions” pertaining to his income, Maurice
failed to establish that he was entitled to have his child support recalculated. The trial court
affirmed the referee’s decision, describing Maurice’s testimony pertaining to finances as
“intentionally vague and misleading.”
At the referee hearing, Maurice testified about his profession: “I’m an accountant. I do
work—to be honest, I’m an accountant, I’m an IT guy, a data analytics guy. I do—I teach
program—some programming languages, things like that. I teach financial analysts, and I do some
traditional accounting things.” Maurice testified about doing work as both a contractor and an
employee for several organizations including Wyzant, Gayanga, and Robert Half. He stated that
his wages ranged from $33 to $75 per hour. Maurice received disability benefits from the VA in
the amount of $3,800 each month. He also received income from work as a private tutor, but the
record is not clear on how much he received from this. Anika believed, based on her conversations
with Maurice during the marriage, that Maurice routinely made more than $1,500 a month from
tutoring. Finally, Maurice offered particularly confusing testimony as it pertained to a rental
property he owned in North Carolina. Anika testified that this property was a source of income,
but Maurice insisted that he took a loss. He testified that he was not sure how much he was
currently charging for rent, but, when repeatedly pressed, said that it fell somewhere between $800
and $1,100 per month. Maurice was not sure if his tenant had been paying rent because of the
pandemic. Ultimately, Maurice never produced any documentation pertaining to the income or
expenses relating to this property.
Given the confusing and conflicting nature of the evidence, the trial court’s findings
pertaining to Maurice’s income were not clearly erroneous.
V. ATTORNEY FEES
A. STANDARD OF REVIEW
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Maurice argues that the trial court erred by ordering him to pay Anika’s attorney fees. This
Court reviews “a trial court’s grant or denial of attorney fees for an abuse of discretion.” Reed v
Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005).
B. ANALYSIS
With respect to attorney fees, Michigan follows the “American Rule,” under which
“attorney fees are not recoverable as an element of costs or damages unless expressly allowed by
statute, court rule, common-law exception, or contract.” Id. In domestic relations cases, a party
may recover attorney fees if the party establishes that “the party is unable to bear the expense of
the action, including the expense of engaging in discovery appropriate for the matter, and that the
other party is able to pay . . . .” MCR 3.206(D)(2).
The trial court awarded Anika $17,000 in attorney fees. Maurice does not dispute the trial
court’s finding that Anika was unable to bear the expense of this action. Rather, he argues that he
did not have the ability to pay the fees. Maurice does not support this assertion with any offer of
proof concerning his finances or with any citation to the record. The record, however, reflects that
Maurice’s income was substantially higher than Anika’s. Anika was working 40 hours a week
and was being paid $16 per hour. The trial court found that Maurice made approximately $180,000
annually, and even Maurice admitted that his annual income exceeded $100,000. At trial, Maurice
did not offer any evidence pertaining to his expenses that would render his income inadequate to
cover these fees, and on appeal he makes no such offer of proof. Therefore, the court’s finding
that Maurice could pay Anika’s attorney fees was not clearly erroneous.
Affirmed. Anika may tax costs as the prevailing party. MCR 7.219(A).
/s/ Thomas C. Cameron
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
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