Deborah Lynn Foster v. Ray James Foster ( 2023 )

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
DEBORAH LYNN FOSTER, UNPUBLISHED
May 18, 2023
Plaintiff/Counterdefendant-
Appellant/Cross-Appellee,
v No. 355654
Dickinson Circuit Court
RAY JAMES FOSTER, Family Division
LC No. 07-015064-DM
Defendant/Counterplaintiff-
Appellee/Cross-Appellant.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
PER CURIAM.
In this divorce case, defendant, Ray James Foster, cross-appeals by right1 the trial court’s
order denying an award of attorney fees and costs from plaintiff, Deborah Lynn Foster. We affirm.
I. BACKGROUND
The dispute between the parties spans more than a decade and has been before both this
Court and our Supreme Court on many occasions to address the division of military benefits as set
forth in the parties’ 2008 consent judgment of divorce. The underlying facts and procedural
history, which are not in dispute for purposes of this appeal, have already been set forth by prior
opinions of this Court and by our Supreme Court:
The parties’ consent judgment of divorce was entered in December 2008.
At the time of the divorce, defendant was receiving both military retirement pay
and military disability benefits for injuries he sustained during the Iraq War.
Pursuant to their property settlement, plaintiff was awarded 50% of defendant’s
retirement pay, also known as “disposable military retired pay.” She was not
awarded any of defendant’s military disability benefits. To protect plaintiff in the
1
Plaintiff’s primary appeal has been involuntarily dismissed.
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event that defendant became entitled to (and accepted) more disability benefits than
he currently received, consequently diminishing the retirement benefits that were
divided and awarded to plaintiff, the parties agreed to include a provision in the
consent judgment of divorce that has become known as the “offset provision.” In
the offset provision, if defendant elected to receive an increase in disability pay, he
agreed to pay plaintiff an amount equal to what she would have received had
defendant not elected to do so. [Foster v Foster, 509 Mich 109, 115; 983 NW2d
373 (2022), amended 509 Mich 988 (2022) (Foster III).]
This “offset provision” has been the centerpiece of the dispute between the parties. The parties
disputed whether federal law preempted the offset provision and voided the consent judgment of
divorce. Plaintiff brought her petition in 2010
seeking to hold defendant in contempt for failing to comply with the consent
judgment. A few months later, defendant argued, for the first time, that under
federal law, [Combat-Related Special Compensation (CRSC)] benefits are not
subject to division in a divorce action. In an opinion and order dated October 8,
2010, the trial court denied plaintiff’s request to hold defendant in contempt but
ordered defendant to comply with the provisions of the judgment. The trial court
acknowledged that it did not have the power to divide military disability pay but
noted that the parties here had agreed upon the division and neither party had moved
to set aside the judgment on the ground of mutual mistake. The trial court warned
that if defendant failed to comply with the order that he would be held in contempt.
On March 25, 2011, plaintiff filed a petition to hold defendant in contempt,
alleging that he had not made any payments as ordered. Although he did not appear
at the hearing, defendant filed a response, arguing that he was not in contempt and,
for the first time, arguing that the issue was within the jurisdiction of the federal
courts. On May 10, 2011, the trial court entered an order holding defendant in
contempt, granting a money judgment to plaintiff, and issuing a bench warrant for
defendant’s arrest because he did not appear at the hearing.
At a show-cause hearing on June 27, 2014, defendant, relying on 10 USC
1408 and 38 USC 5301, argued that he could not assign his disability benefits and
that the trial court had erred by not complying with federal law. The trial court
observed, “[W]e have litigated this issue and re-litigated this issue and it has not
been properly appealed.” The trial court ordered plaintiff to pay the arrearage.
On September 22, 2014, the trial court entered an order holding defendant
in contempt and ordering him to pay the arrearage and attorney fees. Defendant
appealed that order in the Court of Appeals. [Foster III, 509 Mich at 116-118
(alteration in original).]
We initially affirmed the trial court’s order, Foster v Foster, unpublished per curiam opinion of
the Court of Appeals, issued October 13, 2016 (Docket No. 324853), but our Supreme Court
reversed and remanded for reconsideration in light of Howell v Howell, 581 US 214; 137 S Ct
1400; 197 L Ed 2d 781 (2017). Foster v Foster, 501 Mich 917; 903 NW2d 189 (2017) (Foster I).
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We again affirmed, Foster v Foster (On Remand), unpublished per curiam opinion of the Court of
Appeals, issued March 22, 2018 (Docket No. 324853), and defendant sought review from our
Supreme Court a second time. Our Supreme Court held “that federal law preempts state law such
that the consent judgment is unenforceable to the extent that it required defendant to reimburse
plaintiff for the reduction in the amount payable to her due to his election to receive CRSC.”
Foster v Foster, 505 Mich 151, 156; 949 NW2d 102 (2020) (Foster II). The Foster II Court
remanded for us to “address the effect of our holdings on defendant’s ability to challenge the terms
of the consent judgment.” Id.On remand a second time, we “reverse[d] the trial court’s order requiring defendant, under
the offset provision in the consent judgment, to make payments to plaintiff to cover the reduction
in his retirement pay.” Foster v Foster (On Second Remand), unpublished per curiam opinion of
the Court of Appeals, issued June 30, 2020 (Docket No. 324853), p 1. Additionally, regarding the
subject-matter jurisdiction question, we held that “defendant did not engage in an improper
collateral attack on the consent judgment and the trial court lacked subject-matter jurisdiction to
enforce the consent judgment with respect to the offset provision due to the principle of federal
preemption.” Id. at 2. Our Supreme Court again reversed, holding “that federal preemption under
10 USC 1408 and 38 USC 5301 does not deprive our state courts of subject-matter jurisdiction
over a divorce action involving the division of marital property.” Foster III, 509 Mich at 130. As
a result, although “the offset provision in the parties’ consent judgment of divorce was ‘a mistake
in the exercise of undoubted jurisdiction,’ that judgment is not subject to collateral attack.” Id.
(citation omitted).
When plaintiff’s application for leave to appeal our June 30, 2020 decision was still
pending before our Supreme Court, defendant brought in the trial court a motion for restitution
and for attorney fees and costs. Defendant argued that, under Foster II, the consent judgment of
divorce had illegally required him to pay his CRSC pay to plaintiff in violation of federal law. He
sought more than $74,000 in restitution and interest for the payments made to plaintiff between
June 2014 and May 2020. Defendant further argued that attorney fees and costs were proper
because of the extensive litigation in this case. Defendant set forth documentation, which plaintiff
did not dispute, showing that he had incurred $4,038.06 in court costs and $145,650 in attorney
fees.
The trial court, relying on Foster II and Howell, granted defendant $72,000 in restitution
but denied his request for attorney fees and costs. The trial court found
that the Defendant’s attachments are supportive of the amount he has expended
pursuing his appeals. The Court does not believe that the amounts have been
embellished or exaggerated or that the attorney fees are in any way unreasonable.
The Court acknowledges it has absolutely no idea how much the plaintiff has
expended in this legal nightmare.
However, the trial court denied defendant’s request for attorney fees and costs because “[c]osts
and attorney fees are different and this Court is of the opinion there is no wrong doing by the
Plaintiff to suggest that equity requires her to pay [Defendant’s] attorney fees in this action in
addition to her own.”
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Plaintiff filed her appeal in this Court challenging the trial court’s award of restitution. We
held our decision in abeyance pending our Supreme Court’s decision in Foster III. See Foster v
Foster, unpublished order of the Court of Appeals, entered February 10, 2021 (Docket
No. 355654). Our Supreme Court rendered its decision on April 5, 2022. See Foster III, 509 Mich
109. Plaintiff filed a motion for peremptory reversal, which we denied. Foster v Foster,
unpublished order of the Court of Appeals, entered May 23, 2022 (Docket No. 355654). After
failing to submit a brief, plaintiff’s appeal was involuntarily dismissed, Foster v Foster,
unpublished order of the Court of Appeals, entered June 29, 2022 (Docket No. 355654), which
leaves pending only defendant’s cross-appeal for attorney fees and costs.
II. STANDARD OF REVIEW
In a divorce action, this Court reviews for an abuse of discretion an award of attorney fees.
Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). The trial court abuses its discretion
when its “decision falls outside the range of reasonable and principled outcomes.” Woodington v
Shokoohi, 288 Mich App 352, 355; 792 NW2d 63 (2010).
III. ANALYSIS
Defendant alleges that the trial court abused its discretion by failing to award him attorney
fees and costs. We disagree.
At the outset, we note that the issue before us is a narrow one, the payment of attorney fees
and costs.2 Michigan follows the “American Rule,” which states that “attorney fees are not
recoverable as an element of costs or damages unless expressly allowed by statute, court rule,
common-law exception, or contract.” Colen v Colen, 331 Mich App 295, 300; 952 NW2d 558(2020) (quotation marks and citation omitted). For cases involving divorce, the recovery of
attorney fees is governed both by statute and court rule, namely MCL 552.13 and MCR 3.206(D).3
Colen, 331 Mich App at 301. A party has no absolute right to recover attorney fees and costs. Id.
MCL 552.13(1) provides in relevant part:
2
Much of defendant’s cross-appeal seemingly relitigates the issue of whether the consent judgment
of divorce, which contained the disputed offset provision, was valid and enforceable. However,
such issues have been addressed and decided by our Supreme Court in Foster III, which expressly
rejected defendant’s contention that the consent judgment of divorce was void from the outset.
See Foster III, 509 Mich at 123-130. Although defendant may adamantly disagree with this
decision, opinions by our Supreme Court are binding on this Court, Youmans v Bloomfield Charter
Twp, 336 Mich App 161, 219-220; 969 NW2d 570 (2021), and represent the law of the case,
Pontiac Police & Fire Retiree Prefunded Group Health & Ins Bd of Trustees v Pontiac (On
Remand), 317 Mich App 570, 582; 895 NW2d 206 (2016). Moreover, his disagreement with the
outcome of other appeals has no bearing on the limited issue raised here.
3
MCR 3.206 was subsequently amended after defendant filed his motion for restitution and
attorney fees and costs; however, no changes were made to subrule (D). See MCR 3.206, as
amended March 24, 2021.
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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(D) 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, including the
expense of engaging in discovery appropriate for the matter, 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,
or engaged in discovery practices in violation of these rules. [Emphasis added.]
Additionally, a motion brought under MCR 3.206(D) “must be brought within a reasonable time
after the fees sought were incurred” and “what constitutes a reasonable time depends on the
particular facts and circumstances of each case.” Colen, 331 Mich App at 304.
In the present case, in support of his request for attorney fees, defendant highlighted the
extent of litigation that had occurred since 2014, which included multiple appeals filed before both
this Court and our Supreme Court. He argued that this had forced him “to incur additional costs,
expenses and attorneys’ fees in defending that appeal” and that he would continue to do so because
plaintiff had sought review from our Supreme Court. He submitted that the requested costs and
fees were reasonable because of his attorneys’ experience, flat fees, and hourly rate, which plaintiff
did not dispute. However, noticeably absent was any showing by defendant that (1) he was unable
to bear the expense of the action and that plaintiff was able to pay, or that (2) he incurred the fees
and costs because plaintiff disobeyed a prior court order or violated some rule during discovery.
See MCR 3.206(D)(2). By failing to show either of these two requirements, defendant’s request
for attorney fees fell short.
Defendant did not attempt to correct this deficiency on appeal. Instead of showing that
either of the two requirements of MCR 3.206(D)(2) were met, defendant essentially contends that
equity requires that he be permitted to recover attorney fees and costs of this litigation because he
was forced to incur them defending an action in which the consent judgment of divorce was ruled
to be void. However, as previously discussed, Foster III expressly rejected defendant’s argument
that the consent judgment of divorce was void. Although defendant may adamantly disagree, this
has no bearing on the issue’s resolution. Furthermore, we have previously held that “it is improper
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to award attorney fees on general equitable principles.” In re Adams Estate, 257 Mich App 230,
237; 667 NW2d 904 (2003).
Nor are we persuaded that the trial court’s decision would lead to an “inequitable result.”
See Walch v Crandall, 164 Mich App 181, 193; 416 NW2d 375 (1987); Kennedy v Brady, 43 Mich
App 760, 765; 204 NW2d 779 (1972).4 Although this dispute has spanned many years and has
caused defendant—and plaintiff—to incur fees and costs, the procedural history of this case
demonstrates the complexity of the issues involved and the uncertainty of the law governing it.
Requiring plaintiff to pay defendant’s fees and costs would essentially amount to a punishment for
her exercising her appellate rights to fully litigate the issues raised and obtain a final resolution.
Defendant has not met his burden to show that the trial court’s decision was outside the range of
reasonable and principled outcomes.
Affirmed.
/s/ Anica Letica
/s/ Stephen L. Borrello
/s/ Michael J. Riordan
4
“A panel of the Court of Appeals must follow the rule of law established by a prior published
decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed
or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in
this rule.” MCR 7.215(J)(1). However, we recently stated: “We think it reasonable to draw the
negative inference that we are not strictly required to follow uncontradicted opinions from this
Court decided before November 1, 1990, but we think they are nevertheless considered to be
precedent and entitled to significantly greater deference than are unpublished cases.” Woodring v
Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018).
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