Award of Attorney Fees for Failure to Negotiate in Good Faith

27 May 2020
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Category: Blog
27 May 2020, Comments: 0

The Michigan Court of Appeals in an a unpublished opinion (Docket # 347110) wherein the Defendant admitted that he had not settled the case because he did not want a divorce affirmed the trial court’s decision to awarded spousal support and attorney fees.

Michigan Court Rule 3.206 (D) provides that

(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.

This Court in affirming the trial court explained that MCR 3.206(D)(2)(b)[1] was promulgated to (1) reduce the number of hearings that occur because of a litigant’s vindictive or wrongful behavior, (2) shift the costs associated with wrongful conduct to the party engaging in the improper behavior, (3) remove the ability of a vindictive litigant to apply financial pressure to the opposing party, (4) create a financial incentive for attorneys to accept a wronged party as a client, and (5) foster respect for court orders.

They went on to indicate that the trial court did not award plaintiff attorney fees because defendant exercised his right to go to trial after failing, in good faith, to reach a settlement agreement. Instead, the trial court awarded plaintiff attorney fees because, in regard to both mediation and the sale of the marital home, defendant attempted to find loopholes in the trial court’s order, rather than participating in good faith, as he was required to do and concluded that the trial court did not abuse its discretion in awarding plaintiff attorney fees because defendant refused to comply with a court order, despite having the ability to comply.

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