Divorce; Burden of proof; Fraud; Relief from judgment; MCR 2.612(C)(1)(c); Serving a motion only on defendant, not defense counsel; MCR 2.107(B)(1)(c)

The court held that the trial court did not err by assigning plaintiff-ex-wife the burden of proof to establish defendant-ex-husband’s alleged fraudulent concealment of three pensions at the evidentiary hearing on his motion. Also, given the testimony of his witnesses that she was privy to many conversations discussing his pensions, and his testimony that she consented to him keeping those pensions in exchange for defendant forgoing his claim to a loan repayment and down payment of the house, the court held that the trial court did not abuse its discretion by granting his motion to set aside the order granting her motion for relief from judgment. Plaintiff claimed that the trial court erred by assigning her the burden of proof because the hearing was on his motion. She contended that “defendant, as the moving party and the party requesting that her order be set aside, had the burden of proof.” The court noted that defendant’s motion “denied that plaintiff was entitled to relief on her motion due to improper service as well as her knowledge of the pensions. Plaintiff answered and maintained that she properly served defendant and that defendant defrauded her.” In addition, the trial court focused “on the question of whether fraud occurred and plaintiff voiced no objection to bearing the burden of proof. In other words, the trial court afforded defendant the opportunity to be heard on plaintiff’s allegations of fraud and imposed costs on defendant for his initial failure to answer and appear on plaintiff’s motion.” Thus, the trial court correctly placed the burden of production and proof on her. Plaintiff argued that he had defrauded her and “described the remedy available for fraud. Given this, the trial court’s opinion and order properly addressed whether plaintiff was entitled to relief on her motion.” Further, to the extent she complained that defendant and the trial “court muddled the burdens of production and proof,” the record revealed that she contributed to any error, and thus, she was not entitled to relief. Even if the court accepted her position on appeal as to “the procedural posture of defendant’s motion as technically correct, the trial court’s error would not necessarily require reversal.” The trial court determined “that defendant showed that he did not fraudulently conceal his pensions, which would accurately reflect that defendant carried his burden of proof.” Affirmed.