Divorce; Motion for postjudgment attorney fees; MCR 3.206(D)(2)(a)

The court affirmed the trial court’s order denying plaintiff-ex-wife’s motion for postjudgment attorney fees in this divorce case. The court was “unable to conclude that the trial court abused its discretion by finding that plaintiff failed to establish facts sufficient to demonstrate that she was unable to bear the expense of the action.” The trial court observed it was previously “determined that plaintiff had the capacity to earn an income and that there was evidence that she was employed and earning approximately $52,000 annually.” To the extent she asserted “health issues prevented her from continuing to work and earn an income, that allegation was not supported by any factual or documentary evidence, but only by counsel’s unsupported allegation at the motion hearing.” The court held that while “the parties did not dispute that defendant had the financial ability to pay for plaintiff’s postjudgment attorney fees, that alone was not sufficient to entitle plaintiff to attorney fees under MCR 3.206(D)(2)(a).” She also had to show “she was unable to bear the expense of the action. The trial court did not err by finding that” she failed to do so. Although she correctly observed that “[w]ith respect to a party’s ability to prosecute or defend a divorce action, a party ‘may not be required to invade her assets to satisfy attorney fees when she is relying on the same assets for her support,’” the record did not support her claim “that the trial court violated this principle. At the motion hearing, [it] focused on [her] ability to earn an income and found that she was earning an hourly wage of $25 and received $1,000 weekly before taxes ‘in addition to the spousal support that she’s paid.’” The court found that in denying her “motion, rather than considering plaintiff’s spousal support and requiring her to invade that support, the trial court instead focused on [her] earning capacity and ability to earn an income. There was no suggestion by the [trial] court that it expected plaintiff to invade her spousal support to pay her attorney fees or that spousal support was a factor in” its decision to deny her motion. The record also did not support her “claim that the trial court denied her motion for postjudgment attorney fees by relying in part on a provision in the parties’ divorce judgment that required her to pay defendant’s attorney fees related to the sale of” a home in Colorado. The issue of whether she “should be required to pay defendant’s attorney fees associated with plaintiff’s pending motion to modify the listing price for the Colorado home was also before the [trial] court at the hearing on plaintiff’s motion for attorney fees.” Contrary to her argument, there was “no indication in the record that the trial court relied on the attorney-fee provision relative to the Colorado home as a basis for denying” her motion.