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In Richards v Richards, 310 Mich App 683 (2015) (Docket No. 319753), the Court of Appeals affirmed in part and reversed in part a Judgment of Divorce, ruling in favor of Sherri Richards, a client of the Speaker Law Firm, on all appealed issues. Slip op at 1, 10. Though the case involved a complex divorce and many issues on appeal, of particular import is the Court of Appeals' ruling on the issue of attorney's fees, which clarified that in divorce actions there are two independent bases for an award of attorney's fees under MCR 3.206: financial need or noncompliant action by the opposing party. Slip op at 9. In Richards, the trial court specifically found that the husband did not comply with the court's orders and that the violations “certainly caused confusion and extra time by all parties involved,” but because of the spousal support and property award denied attorney's fees to the wife. Slip op at 9.  The Court of Appeals held that the trial court erred by failing to award attorney's fees because it conflated the two different bases. Slip op at 9.  The Court of Appeals quoted the text of MCR 3.206(C), which uses the disjunctive term “or” between the two different bases for attorney's fees, which the Court of Appeals indicated shows the bases are a choice between two alternatives. Slip op at 8-9. In addition to the plain language of the Court Rule, the Court of Appeals also noted that the staff comments to the Court Rule state that MCR 3.206(C)(2)(b) (attorney's fees for noncompliance) is meant to “shift the costs associated with wrongful conduct to the party engaging in the improper behavior.” Slip op at 9. In the case of Richards, this meant remanding to the trial court for a determination of attorney's fees based on the husband's repeated noncompliance. Slip op at 10.

The Court of Appeals indicated that it has seen the problem in the past where trial courts conflate the two bases for attorney's fees. Slip op at 9. Therefore, it wanted to use this case as an opportunity to clarify the issue. Slip op at 9. Hopefully, this clarification will help provide relief for wronged parties in divorce actions.

In Graham v Foster, ___ Mich App __; __ NW2d __ (2015), the Court of Appeals held that a presumed father, ie, a mother's husband at the time of conception or birth of a child, is a necessary party to a Revocation of Paternity Act claim. The Court of Appeals affirmed the trial court's denial of summary disposition where an “alleged father” under MCL 722.1433(c), ie, “a man who by his actions could have fathered the child,” filed a complaint under the Revocation of Paternity Act seeking an order determining his paternity, an order of filiation, and joint custody with reasonable parenting time. Slip op at 1-2. The alleged father only named the mother as a defendant in the complaint. Slip op at 2. The mother filed a motion for summary disposition claiming that the alleged father could not satisfy the necessary factual requirements under MCL 722.1441(3)(a) and that the case should also be dismissed for failure to join a necessary party: the “presumed father.” Slip op at 2. She also argued that the statute of limitations had run, so the alleged father could no longer join the presumed father as a defendant. Slip op at 2. The alleged father argued that the presumed father was not a necessary party, and if he was a necessary party, requested the trial court allow him to amend his complaint to add the presumed father as a defendant. Slip op at 2. The trial court denied the mother's motion, concluding that genuine issues of material fact existed regarding whether the factual requirements were met and that the husband was not a necessary party to the litigation. Slip op at 2-3. The mother appealed the trial court's decision that the presumed father was not a necessary party. Slip op at 3. 

The Court of Appeals held that a “'presumed father' under MCL 722.1433(e), ie, “a man . . . presumed to be the child's father by virtue of his marriage to the child's mother at the time of the child's conception or birth,” is a necessary party under MCR 2.205 (necessary joinder) because the presumed father has legal rights of parenthood and “[a] successful action by [the alleged father” would strip [the presumed father] of interests that must not be set aside without [the presumed father]'s fair chance to defend those interests.” Slip op at 3-4. The Court of Appeals further held that while generally the filing of an amended complaint that adds in a defendant means that the date of the amended complaint is used to determine if the statute of limitations has run, if the additional defendant to be added is a necessary party, the necessary party can be joined even after the expiration of the limitations period. Slip op at 4. The Court of Appeals discussed that under MCR 2.118(A)(2) trial courts should allow amendment of pleadings “when justice so requires.” Slip op at 4. Thus, in Graham, the Court of Appeals held that the alleged father should be allowed to amend his complaint to add the presumed father and affirmed the denial of summary disposition. Slip op at 4. The Court of Appeals noted in a footnote that if the presumed father was not added as a defendant, the alleged father's claim “would be defective in that it would lack a necessary party.” Slip op at 4 n 3. The Court of Appeals also held that the alleged party's granted motion for genetic testing was premature in light of the fact that the presumed father had not yet been added as a party. Slip op at 4 n 3.

In Loutts v Loutts, __ Mich App __; __ NW2d __ (2015) (Docket No. 318468), the Court of Appeals addressed an issue debated among family law attorneys: whether a party could seek to modify and extend an award of spousal support set by a trial court in the parties’ judgment of divorce. After analyzing MCL 552.28 (regarding modification of spousal support) and the Supreme Court’s opinion in Rickner v Frederick, 459 Mich 371; 509 NW2d 288 (1999), the Court of Appeals held that a trial court had the authority to modify and extend spousal support beyond the term set by the trial court, even where the movant did not request the modification until after the term had expired. Loutts, slip op at 5. The Court of Appeals held, however, that in Loutts, the trial court committed harmless error in failing to interpret the law properly to permit a modification because the moving party failed to establish the requisite change of circumstances to warrant modification and extension of the spousal support. Loutts, slip op at 5. Therefore, if a party seeks to extend spousal support beyond the term set by the trial court, the party may do so even if after the term has expired, so long as the party properly proves a change of circumstances warrant the modification.