                          STATE OF MICHIGAN

                            COURT OF APPEALS



PAULA ALI,                                                           UNPUBLISHED
                                                                     September 14, 2017
               Plaintiff-Appellee,

v                                                                    No. 331601
                                                                     Wayne Circuit Court
ZYIEDA ALI and ABDEL ALI,                                            LC No. 14-109427-DM

               Defendants-Appellants.


Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

        Defendants appeal as of right a judgment of divorce entered in this action filed by
plaintiff, Paula Ali, against defendant, Zyieda Ali. Defendant Abdel Ali was later joined as a
necessary party to the action to determine his alleged interest in property located at 2217 Boldt in
Dearborn (the Boldt property), which plaintiff claimed was a marital asset.1 For the reasons
discussed below, we affirm in part, but vacate the entry of the divorce judgment, reverse the
order awarding attorney fees, and remand to the trial court for further proceedings.

                                     I. THE BOLDT PROPERTY

                                        A. DUE PROCESS

       First, defendants contend that the trial court denied Abdel due process of law by failing to
comply with several court rules before adjudicating Abdel’s alleged interest in the Boldt
property. We disagree.

       Defendants did not allege any due process violation at the evidentiary hearing held to
determine Abdel’s alleged interest in the Boldt property. They first claimed that Abdel was
denied due process in their motion for rehearing or reconsideration. “Where an issue is first
presented in a motion for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau
Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009). Nonetheless, we may


1
  Because defendants share the same last name, we will refer to defendant Zyieda Ali as
“defendant” and defendant Abdel Ali as “Abdel” in this opinion.


                                                -1-
review this unpreserved issue because it is “an issue of law for which all the relevant facts are
available.” Id. Unpreserved constitutional issues are reviewed for plain error affecting a party’s
substantial rights. Demski v Petlick, 309 Mich App 404, 463; 873 NW2d 596 (2015).

         In Bonner v City of Brighton, 495 Mich 209, 235; 848 NW2d 380 (2014), our Supreme
Court observed that, “at a minimum, due process of law requires that deprivation of life, liberty,
or property by adjudication must be preceded by notice and an opportunity to be heard.”
Defendants allege the following violations of the Michigan Court Rules denied Abdel due
process of law: (1) the failure to issue a summons in order to obtain personal jurisdiction over
Abdel in violation of MCR 2.102; (2) the fact that there was no complaint indicating the causes
of action against Abdel or the relief requested in violation of MCR 2.111(B); (3) the failure to
allow Abdel to file a responsive pleading in violation of MCR 2.301; (4) the denial of the
opportunity to participate in discovery in violation of MCR 2.301; (5) the denial of time to
prepare for trial in violation of MCR 2.501(C); and (6) the failure to allow Abdel to request a
jury trial in violation of MCR 2.508(B)(1).
        However, the trial court complied with the court rule regarding the necessary joinder of
parties. MCR 2.205 provides, in relevant part:

               (A) Necessary Joinder. Subject to the provisions of subrule (B) and
       MCR 3.501, persons having such interests in the subject matter of an action that
       their presence in the action is essential to permit the court to render complete
       relief must be made parties and aligned as plaintiffs or defendants in accordance
       with their respective interests.

               (B) Effect of Failure to Join. When persons described in subrule (A)
       have not been made parties and are subject to the jurisdiction of the court, the
       court shall order them summoned to appear in the action, and may prescribe the
       time and order of pleading. If jurisdiction over those persons can be acquired
       only by their consent or voluntary appearance, the court may proceed with the
       action and grant appropriate relief to persons who are parties to prevent a failure
       of justice. In determining whether to proceed, the court shall consider

              (1) whether a valid judgment may be rendered in favor of the plaintiff in
       the absence of the person not joined;

               (2) whether the plaintiff would have another effective remedy if the action
       is dismissed because of the nonjoinder;

                (3) the prejudice to the defendant or to the person not joined that may
       result from the nonjoinder; and

               (4) whether the prejudice, if any, may be avoided or lessened by a
       protective order or a provision included in the final judgment.

               Notwithstanding the failure to join a person who should have been joined,
       the court may render a judgment against the plaintiff whenever it is determined
       that the plaintiff is not entitled to relief as a matter of substantive law.

                                               -2-
        Abdel claimed an interest in the Boldt property, a subject matter of this action. His
presence was essential for the court to render complete relief because plaintiff and defendant
disputed whether defendant or Abdel owned that property and, to divide the marital estate, the
trial court had to determine whether the property was owned by defendant or Abdel. Thus, the
trial court properly made Abdel a defendant in the action. See MCR 2.205(A). Because Abdel
was not a party, the trial court was permitted to order Abdel summoned to appear in the action.
See MCR 2.205(B). The trial court ordered that Abdel be served with a summons and the order.
Although a proof of service is not contained in the lower court file, Abdel’s attorney filed an
appearance on his behalf and Abdel and his attorney appeared at the evidentiary hearing. The
trial court acquired personal jurisdiction over Abdel by this voluntary appearance. See MCR
2.205(B).

        MCR 2.205(B) further allows the trial court to “prescribe the time and order of pleading.”
According to its order, the trial court did not require Abdel to file a responsive pleading, but he
was not prohibited from doing so. The trial court ordered him to produce documentation related
to the Boldt property, appear at the evidentiary hearing, and testify at the hearing. Although
there was no complaint filed against Abdel, the court rules do not require a complaint against an
added party. Moreover, the trial court’s order clearly indicated that Abdel’s ownership interest
in the Boldt property was the subject of the evidentiary hearing.

       Defendants argue that Abdel was not allowed time to file a responsive pleading, conduct
discovery, or prepare for trial. But the trial court’s order was issued on August 25, 2015, and the
evidentiary hearing was scheduled for September 9, 2015, but then rescheduled to September 23,
2015, giving Abdel additional time. When Abdel and his attorney appeared on September 23,
2015, they never claimed that they needed time for discovery or to prepare for the hearing.
Defendants fail to explain what they could have established with additional time for discovery or
preparation. Therefore, they have not established any error affecting their substantial rights.

        Finally, as defendants acknowledge, MCR 2.508(B)(1) provides that “[a] party may
demand a trial by jury of an issue as to which there is a right to trial by jury by filing a written
demand for a jury trial within 28 days after the filing of the answer or a timely reply.” Abdel
was represented by an attorney and he never filed a demand for a jury trial, or even raised the
issue orally at the evidentiary hearing. The failure to do so constituted a waiver of a trial by jury.
MCR 2.508(D)(1).

          B. DETERMINATION OF ABDEL’S ALLEGED PROPERTY INTEREST

       Defendants argue that the trial court erred by finding that Abdel had no interest in the
Boldt property. We disagree.

        “We review for clear error a trial court’s findings of fact regarding whether a particular
asset qualifies as marital or separate property. Findings of fact are clearly erroneous when this
Court is left with the definite and firm conviction that a mistake has been made.” Woodington v
Shokoohi, 288 Mich App 352, 357; 792 NW2d 63 (2010) (citations omitted). “We accord
special deference to a trial court’s factual findings that were based on witness credibility.” Id. at
358.


                                                 -3-
       In Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 1 (1997), this Court
explained:
                The distribution of property in a divorce is controlled by statute. In
       granting a divorce, the court may divide all property that came to either party by
       reason of the marriage . . . . When apportioning marital property, the court must
       strive for an equitable division of increases in marital assets that may have
       occurred between the beginning and the end of the marriage. Thus, the trial
       court’s first consideration when dividing property in divorce proceedings is the
       determination of marital and separate assets. This distinction between marital and
       separate estates has long been recognized in this state. Generally, the marital
       estate is divided between the parties, and each party takes away from the marriage
       that party’s own separate estate with no invasion by the other party. However, a
       spouse’s separate estate can be opened for redistribution when one of two
       statutorily created exceptions is met. [Citations and quotation marks omitted.]

         The trial court found that defendant was the true owner of the Boldt property. Although
both defendants testified that Abdel owned the property, the trial court found that their testimony
was not credible. The court stated that Abdel’s testimony was “inconsistent, contradictory, and
not credible, in ways both small and large.” In particular, the court noted that (1) Abdel gave
inconsistent testimony regarding when he first started living at the Boldt property; (2) Abdel
testified that he did not charge defendant rent, but he executed an eviction notice indicating that
defendant owed $2,000 in rent; (3) Abdel testified that he allowed defendant to live at the Boldt
property because he could not leave defendant on the street, but he then purported to evict
defendant without knowing where he would live; (4) Abdel claimed he was angry with defendant
for involving him in the divorce, but he also testified that he involved defendant by asking him to
cosign for the land contract and to execute a quitclaim deed conveying the property to him; (5)
defendants failed to produce any evidence corroborating their testimony that Abdel’s mother was
involved in the financing of the Boldt property, and they failed to present Abdel’s mother as a
witness; (6) Abdel claimed that he made land contract payments in an amount different from the
monthly payment required by the land contract; (7) Abdel claimed that he consistently made land
contract payments, but stated that he knew nothing about outstanding taxes on the Boldt
property; and (8) Abdel claimed he made payments on the home when he was unable to live
there for more than three years. The trial court further found that the evidence demonstrated a
pattern of defendant placing Abdel’s name on property and assets that defendant actually owned.

        On appeal, defendants dispute the trial court’s credibility determinations, but the trial
court is in a superior position to assess credibility, so we give special deference to those findings.
See Woodington, 288 Mich App at 358. Moreover, there is no indication that the trial court
“falsely claim[ed] a lack of credibility in order to get special deference” from this Court.
Contrary to defendants’ assertion, the trial court’s determination that Abdel was credible in some
respects, but not in others, does not signal any impropriety.

       Moreover, defendants’ arguments are not persuasive. First, defendants argue that several
documents were admitted into evidence that established Abdel owned the home. While this may
be true, the trial court believed that defendant had placed Abdel’s name on property that
defendant, in fact, owned. Defendants also contend that the trial court should not have doubted

                                                 -4-
that Abdel would have wanted to purchase a house at age 21 or that he would have had the
money to do so. However, the trial court did not doubt Abdel’s desire or ability to purchase the
Boldt property; rather, it only doubted that he would have made payments when he could not live
in the home.

        Defendants further contend that the trial court should not have rejected Abdel’s claimed
interest in the home because he failed to produce his mother as a witness. The trial court,
however, stated that defendants had failed to provide any corroborating evidence of the source of
the payments. Both defendants testified that Abdel’s mother was actively involved in Abdel’s
purchase of the home. Calling Abdel’s mother as a witness was one way they could have
corroborated their testimony. Regarding the amount of the land contract payments, defendants
contend that Abdel’s testimony that the payment was $797 was actually correct when a late fee
of $50 is added. Although defendants’ motion for rehearing did address this inconsistency in
Abdel’s testimony, this was only one of the reasons why the trial court found that Abdel’s
testimony was not credible, and this clarification did not change the trial court’s credibility
determination.

        Defendants also contend that the trial court misunderstood Abdel’s testimony, which was
that he stopped making payments when he could not obtain a Certificate of Occupancy, not that
he made payments for more than three years. However, Abdel’s testimony did indicate that he
made payments until the Certificate of Occupancy was obtained. He clarified in his affidavit,
however, that he only made payments until 2011 or 2012. Although the trial court did find that
Abdel made payments for 3½ years, what it found incredible was that Abdel would make any
payments when he could not live there for more than three years. Defendants argue that the fact
that Abdel stopped making payments is consistent with the fact that he was not paying property
taxes, his lack of receipts, and the fact that he had the opportunity to refinance. However, the
fact that Abdel did not pay the property taxes and had few receipts was also consistent with
defendant being the true owner.

        Defendants also attempt to explain the apparent inconsistencies regarding who lived in
the Boldt home first. Contrary to defendants’ assertions, however, it is not clear that defendant
intended to say that he moved into the home in October 2013, rather than 2014. Regardless,
contrary to defendants’ assertion, this was not a “major issue,” but merely one area of testimony
that showed defendants’ lack of credibility. Defendants also contend that Abdel’s income was
sufficient to cover the land contract payments as well as the refinancing, especially with help
from his mother. However, the trial court never doubted that Abdel had sufficient income;
rather, it found a lack of corroboration regarding the source of the payments, including the
money from Abdel’s mother. While defendants did provide evidence of Abdel’s income with
their motion for rehearing, they still failed to provide any proof that Abdel’s mother helped with
the financing, as they claimed at trial.

        Defendants also contend that Abdel was honest, stated he did not want to lie, and referred
to the property as his house. Again, however, the trial court was in the best position to judge
Abdel’s credibility, and it did not believe his testimony. Defendants argue that the fact that
Abdel appeared at the hearing and is still fighting for the property is an indication of his
credibility. However, it could also be a continuation of defendant’s effort to conceal this asset
from plaintiff. Defendants contend that there is no proof that defendant put money into the home

                                               -5-
and doing so would not have made sense. As indicated, however, there was no corroboration of
the testimony that the additional money came from Abdel’s mother. Thus, it could have come
from defendant. Moreover, the fact that defendant had recently married plaintiff and had another
home does not establish that he would not buy another property.

       Defendants do not dispute other aspects of the trial court’s findings, including that
defendant testified that he gave the property to Abdel, that defendant was the person who let the
appraiser into the Boldt home, that defendant lived in the home rent-free, and defendant’s pattern
of placing Abdel’s name on other property that defendant actually owns. Considering these
findings, as well as plaintiff’s testimony that defendant told her that he purchased the Boldt
property, and the trial court’s determination that defendant and Abdel were not credible, the trial
court’s findings that defendant owned the Boldt property and was attempting to conceal his
ownership of this asset are not clearly erroneous.2 See Woodington, 288 Mich App at 357.

    C. MOTION FOR REHEARING, RECONSIDERATION, NEW TRIAL, OR RELIEF FROM
                                JUDGMENT

        Defendants argue that the trial court erred by upholding its ruling that Abdel had no
interest in the Boldt property in response to defendants’ motion for rehearing, reconsideration,
new trial, or relief from judgment. We disagree.

        “This Court reviews a trial court’s decision regarding denial of a motion for rehearing or
reconsideration for an abuse of discretion.” Ensink v Mecosta Co Gen Hosp, 262 Mich App 518,
540; 687 NW2d 143 (2004). Similarly, “[t]his Court reviews for an abuse of discretion a trial
court’s decision on a motion to set aside a judgment under MCR 2.612. This Court also reviews
for an abuse of discretion the trial court’s decision to grant or deny motions for a new trial under
MCR 2.611.” Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 498,
531; 866 NW2d 817 (2014) (citations omitted). “A trial court abuses its discretion when its
decision falls outside the range of reasonable and principled outcomes.” Id. (citation and
quotation marks omitted).

        The trial court found that defendants failed to establish (1) that its initial ruling was
erroneous or that a different disposition was required under MCR 2.119(F), (2) sufficient reason
to grant a new trial under MCR 2.611(A), or (3) sufficient ground for relief from judgment under
MCR 2.612(C).




2
  In a related argument, defendants contend that the trial court’s determination that defendant’s
2015 quitclaim deed conveying his interest in the Boldt property to Abdel was void under MCL
566.221 was ineffective to invalidate Abdel’s independent 50% interest in the property.
However, the issue before the court was not limited to the validity of the 2015 quitclaim deed.
Rather, the court was called on to determine whether Abdel had any interest in the property. The
trial court found that Abdel had no interest in the property and that defendant was the true owner
of the property. As indicated, that finding is not clearly erroneous.


                                                -6-
MCR 2.119(F)(3) provides:
         Generally, and without restricting the discretion of the court, a motion for
rehearing or reconsideration which merely presents the same issues ruled on by
the court, either expressly or by reasonable implication, will not be granted. The
moving party must demonstrate a palpable error by which the court and the
parties have been misled and show that a different disposition of the motion must
result from correction of the error.

MCR 2.611(A)(1) provides:
        A new trial may be granted to all or some of the parties, on all or some of
the issues, whenever their substantial rights are materially affected, for any of the
following reasons:

       (a) Irregularity in the proceedings of the court, jury, or prevailing party, or
an order of the court or abuse of discretion which denied the moving party a fair
trial.

         (b) Misconduct of the jury or of the prevailing party.

       (c) Excessive or inadequate damages appearing to have been influenced by
passion or prejudice.

         (d) A verdict clearly or grossly inadequate or excessive.

       (e) A verdict or decision against the great weight of the evidence or
contrary to law.

        (f) Material evidence, newly discovered, which could not with reasonable
diligence have been discovered and produced at trial.

         (g) Error of law occurring in the proceedings, or mistake of fact by the
court.

         (h) A ground listed in MCR 2.612 warranting a new trial.

MCR 2.612(C)(1) provides:
       On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:

         (a) Mistake, inadvertence, surprise, or excusable neglect.

       (b) Newly discovered evidence which by due diligence could not have
been discovered in time to move for a new trial under MCR 2.611(B).

       (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.

                                          -7-
               (d) The judgment is void.

              (e) The judgment has been satisfied, released, or discharged; a prior
       judgment on which it is based has been reversed or otherwise vacated; or it is no
       longer equitable that the judgment should have prospective application.

               (f) Any other reason justifying relief from the operation of the judgment.

        Defendants argue that the trial court failed to give any consideration to the affidavits and
exhibits submitted with their motion for rehearing, which clarified many of the inconsistencies
that the trial court had found. In particular, defendants argue that (1) Abdel’s affidavit clarified
that he stopped making payments because he was unable to live in the home; (2) Abdel explained
that defendant may have stayed at the home before he actually lived there; (3) Abdel provided
proof that he sold a car for $4,800, giving him a large portion of the $20,000 needed to refinance,
as well as bank statements showing his deposits; and (4) defendants attached proof of four
payments, which also showed that the payment amount was $747 plus a late fee of $50.
Defendants, however, failed to establish any error or irregularity considering that the trial court’s
decision was based in large part on the credibility of the witnesses. Moreover, defendants failed
to establish that any of this evidence was newly discovered. The majority of the arguments made
by defendants are addressed in subpart A, above. With regard to the proof of sale of the vehicle
and Abdel’s bank statements, there is no evidence that the $4,800 or the deposits were actually
used to refinance the home. Moreover, while defendants attached at least one receipt for $797,
indicating payment was made by Abdel, this does not establish from where the money came.
Defendants have failed to show that the trial court abused its discretion in denying their
postjudgment motion.

                          D. DIVISION OF THE BOLDT PROPERTY

       Next, defendants argue that the trial court erred when it awarded 80% of the value of the
Boldt property to plaintiff and only 20% of the value to defendant. We disagree.

       In Butler v Simmons-Butler, 308 Mich App 195, 207-209; 863 NW2d 677 (2014), this
Court stated:

               In deciding issues on appeal involving division of marital property, this
       Court first reviews the trial court’s findings of fact. Findings of fact, such as a
       trial court’s valuations of particular marital assets, will not be reversed unless
       clearly erroneous. A finding is clearly erroneous if, after a review of the entire
       record, the reviewing court is left with the definite and firm conviction that a
       mistake was made. If the trial court’s findings of fact are upheld, this Court must
       decide whether the dispositive ruling was fair and equitable in light of those facts.
       The dispositional ruling is discretionary and will be affirmed unless this Court is
       left with a firm conviction that the division was inequitable.

                                                 ***

             The goal in distributing marital assets in a divorce proceeding is to reach
       an equitable distribution of property in light of all the circumstances. The

                                                -8-
       division need not be mathematically equal, but any significant departure from
       congruence must be clearly explained. To reach an equitable division, the trial
       court should consider the duration of the marriage, the contribution of each party
       to the marital estate, each party’s station in life, each party’s earning ability, each
       party’s age, health and needs, fault or past misconduct, and any other equitable
       circumstance. The determination of relevant factors will vary with the
       circumstances of each case, and no one factor should be given undue weight. The
       trial court must make specific findings regarding the factors it determines to be
       relevant. [Citations and quotation marks omitted.]

        The trial court determined that the 80/20 distribution was equitable in light of defendant’s
efforts to conceal or minimize his assets to prevent plaintiff from obtaining her rightful share of
the marital assets, and because of plaintiff’s lesser earning potential. The trial court also ordered
the 80/20 division in lieu of modest spousal support, which it would have otherwise awarded to
plaintiff.

        Defendants contend that the 80/20 division is inequitable because (1) the Boldt property
was the only marital asset with any appreciable value, (2) the trial court gave undue weight to
“general principles of equity,” (3) plaintiff actually had a higher earning potential than defendant
because she is pursuing a certificate to work in healthcare, (4) the trial court failed to consider
defendant’s more immediate need for retirement savings, and (5) plaintiff’s history of assault
should have weighed against her. Although the Boldt property was the main asset of value, the
trial court ordered the 80/20 provision in lieu of spousal support, which it would have otherwise
awarded to plaintiff. There is no indication that the trial court gave undue weight to principles of
equity and the fact that defendant had tried to conceal the property. Rather, this was only one of
the factors that the trial court considered.

        The trial court also did not clearly err by finding that defendant had a higher earning
potential given his experience. Although plaintiff testified that she intended to obtain her
General Educational Development (GED) Certificate and a degree in healthcare, she had not yet
done so. Defendant, however, had worked throughout the duration of the marriage. Contrary to
defendants’ suggestion, the trial court did acknowledge the ages of the parties. Although
defendant was closer to the age of retirement than plaintiff, plaintiff had immediate needs of
providing food and housing for the children. In addition, although plaintiff had pleaded guilty to
charges stemming from one incident, she testified that she did not actually commit the offense,
and both parties had alleged domestic violence. The trial court’s finding that there was no
significant proof that one party was more at fault for the breakdown of the marriage than the
other is not clearly erroneous. As noted, the trial court also awarded this unequal division in lieu
of awarding spousal support to plaintiff, and defendants do not contend that an award of short-
term spousal support would have been improper. We are not persuaded that the trial court’s
dispositional ruling was inequitable.

                                 II. IMPUTATION OF INCOME

      Defendants contend that the trial court abused its discretion by imputing income of
$27,397 to defendant. We disagree.


                                                -9-
       “[W]e review a trial court’s discretionary rulings, such as the decision to impute income
to a party, for an abuse of discretion. An abuse of discretion occurs when a court selects an
outcome that is not within the range of reasonable and principled outcomes.” Carlson v Carlson,
293 Mich App 203, 205; 809 NW2d 612 (2011) (citations omitted).

       In Carlson, 293 Mich App at 205-207, this Court observed:

               According to the 2004 Michigan Child Support Formula Manual, the first
       step in determining a child-support award is to ascertain each parent’s net income
       by considering all sources of income. This calculation not only includes a party’s
       actual income, but it can include imputed income. In other words, a party can be
       treated as having income or resources that the individual does not actually have.
       A trial court has the discretion to impute income when a parent voluntarily
       reduces or eliminates income or when it finds that the parent has a voluntarily
       unexercised ability to earn. However, a court’s decision to impute income must
       be supported by adequate fact-finding that the parent has an actual ability and
       likelihood of earning the imputed income.

              The 2004 MCSF sets forth a number of equitable criteria that must be
       considered when determining whether to impute income:

              (1) Prior employment experience;

              (2) Educational level;

              (3) Physical and mental disabilities;

              (4) The presence of the parties’ children in the individual’s home and its
       impact on the earnings;

              (5) Availability of employment in the local geographical area;

              (6) The prevailing wage rates in the local geographical area;

              (7) Special skills and training; or

               (8) Whether there is any evidence that the individual in question is able to
       earn the imputed income.

       The 2004 MCSF also contemplates the difficulties in ascertaining an individual’s
       ability and likelihood of earning imputed income where the individual is a
       business owner:

                      There are special difficulties in determining the income of
              certain individuals . . . [because] persons who have significant
              control over the form and manner of their own compensation may
              be able to arrange that compensation so as to be able to minimize
              the amount visible to friends of the court and others.

                                               -10-
       In these instances, the MCSF directs that the court give special attention to factors
       such as unusual forms of income (e.g., profit sharing); in-kind income; redirected
       income; deferred income; fringe benefits; and certain tax deductions. [Citations,
       footnote, and quotation marks omitted.]

        The trial court found defendant’s testimony that he only made $800 to $900 a month not
credible given his work experience as a certified mechanic and the cash transactions that took
place at his business. The trial court found that the median income for an entry-level automotive
mechanic in Detroit was $35,835 based on documentation submitted by the parties as a joint
exhibit. But because defendant was not certified, the trial court decided to impute income to
defendant of only $27,397, representing the bottom 10 percentile of the salary range. Based on
this income level, the court calculated defendant’s child support payments at $604 a month.

         Defendant contends that he cannot pass the testing required to become a certified
mechanic because he cannot read or use computers and, therefore, the income imputed by the
trial court represents 2.5 times defendant’s actual income. The trial court, however, believed that
defendant could find a way to obtain recertification. The trial court’s finding that defendant had
an unexercised ability to earn is not clearly erroneous given that he was able to obtain
certification in the past, and had supported himself, plaintiff, and the children with his
automotive repair business. Defendant also claimed that he could not read well, but plaintiff
testified that defendant could read and write. The document submitted by the parties established
defendant’s likelihood to earn the income imputed by the trial court, as it described the median
salary in the area. Moreover, the trial court expressly recognized that defendant was not
presently certified and imputed only an income at the bottom of the specified range. The trial
court also took into account an unusual form of income that was unique to defendant’s
business—cash transactions.

        We note that, while the trial court stated that it was imputing income to defendant, it also
suggested that defendant actually earned more than $800 or $900 a month, and that his testimony
that he made only $800 or $900 a month was not credible given his experience and the cash
transactions at his business. Thus, while the trial court seemed to find that defendant’s income
was in fact higher than what he stated, it did not impute income to defendant at this higher level.
The trial court’s decision to impute income at the bottom of the range for certified mechanics
was not an abuse of discretion.

                                     III. ATTORNEY FEES

       Defendants also argue that the trial court erred by ordering defendant to pay plaintiff’s
attorney fees in the amount of $8,718 from his portion of the proceeds of the sale of the Boldt
property. We agree. “This Court reviews a trial court’s decision to award attorney fees in a
divorce action for an abuse of discretion.” Woodington, 288 Mich App at 369.

        Plaintiff sought attorney fees under MCR 3.206(C)(2). She suggested that defendant had
the ability to pay given that the trial court did not believe his testimony that his income was only
$800 or $900 a month. She further argued that attorney fees were warranted based on
defendant’s obstructionist behavior. She requested $8,718 for her attorney’s work on the case.


                                               -11-
       MCR 3.306(C) 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, 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.

        The trial court ordered defendant to pay the amount requested by plaintiff based on his
unreasonable and obstructive conduct. Thus, the trial court apparently awarded fees under MCR
3.206(C)(2)(b), which as plaintiff argues, does not consider the party’s ability to pay. See
Richards v Richards, 310 Mich App 683, 701-702; 874 NW2d 704 (2015). However, plaintiff
did not allege or establish that defendant refused to comply with any court order, and thus, she
failed to show facts sufficient to justify the award. See MCR 3.306(C)(2). Moreover, while the
trial court found that defendant attempted to interfere with plaintiff’s right to marital assets by
concealing his ownership in assets, thereby causing plaintiff to incur unnecessary legal fees, the
trial court did not find that plaintiff incurred attorney fees because defendant refused to comply
with a previous court order. MCR 3.206(C)(2)(b). Thus, the trial court abused its discretion by
awarding attorney fees under MCR 3.206(C)(2)(b). See Woodington, 288 Mich App at 3369.
        Additionally, the trial court failed to conduct a hearing or make findings of fact regarding
the reasonableness of the fees incurred. See Reed v Reed, 265 Mich App 131, 165; 693 NW2d
825 (2005). “When requested attorney fees are contested, it is incumbent on the trial court to
conduct a hearing to determine what services were actually rendered, and the reasonableness of
those services.” Id. at 166. Although plaintiff submitted an attorney fee statement, the trial court
did not find that those fees were actually incurred and it found, without explanation, that those
fees were reasonable and caused by defendant’s conduct. Accordingly, we reverse the trial
court’s award of attorney fees to plaintiff.

                                  IV. ENTRY OF JUDGMENT

       Finally, defendants contend that the trial court erred by entering the judgment of divorce
without giving defendants an opportunity to object, and by including in the judgment a provision
that was not part of its opinion and order. We agree.

        “This Court reviews de novo the proper interpretation and application of statutes and
court rules.” Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110 (2012).

       MCR 2.602(B) provides:
               An order or judgment shall be entered by one of the following methods:

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              (1) The court may sign the judgment or order at the time it grants the relief
       provided by the judgment or order.

               (2) The court shall sign the judgment or order when its form is approved
       by all the parties and if, in the court’s determination, it comports with the court’s
       decision.

               (3) Within 7 days after the granting of the judgment or order, or later if the
       court allows, a party may serve a copy of the proposed judgment or order on the
       other parties, with a notice to them that it will be submitted to the court for
       signing if no written objections to its accuracy or completeness are filed with the
       court clerk within 7 days after service of the notice. The party must file with the
       court clerk the original of the proposed judgment or order and proof of its service
       on the other parties.

               (a) If no written objections are filed within 7 days, the clerk shall submit
       the judgment or order to the court, and the court shall then sign it if, in the court’s
       determination, it comports with the court’s decision. If the proposed judgment or
       order does not comport with the decision, the court shall direct the clerk to notify
       the parties to appear before the court on a specified date for settlement of the
       matter.

              (b) Objections regarding the accuracy or completeness of the judgment or
       order must state with specificity the inaccuracy or omission.

              (c) The party filing the objections must serve them on all parties as
       required by MCR 2.107, together with a notice of hearing and an alternative
       proposed judgment or order.

              (4) A party may prepare a proposed judgment or order and notice it for
       settlement before the court.

As this Court explained in In re Leete Estate, 290 Mich App 647, 656-657; 803 NW2d 889
(2010):
       Thus, under MCR 2.602(B), for an order to be valid, it must be entered in one of
       four ways: it may be signed at the time relief is granted; it may be signed when its
       “form” is approved by all the parties and if, in the court’s determination, it
       comports with the court’s decision; it may be entered pursuant to the “seven-day
       rule”; or, it may be prepared and noticed for settlement before the court.

        We agree with defendants that the trial court failed to comply with any of the methods for
entering a judgment identified in MCR 2.602(B). The judgment of divorce was not signed when
the relief was granted, which was when the court’s opinion and order was issued. Nor was it
signed after its form was approved by the parties because defendants never approved its form.
Finally, the judgment was not entered pursuant to the “seven-day rule,” nor was it noticed for
settlement before the court. Rather, plaintiff submitted the judgment on December 21, 2015,
consistent with the trial court’s order, and the trial court signed and entered the judgment on

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December 22, 2015, without giving defendants any opportunity to object. Although plaintiff
requested a hearing on February 2, 2016, no such hearing was held.

       Furthermore, the error was not harmless and it resulted in a substantial injustice to
defendant. See MCR 2.613(A). The judgment of divorce contained a mutual release provision
that was not part of the trial court’s opinion and order. This provision “release[d] each party
from any claims, including tort claims that the other party may have against them[.]” Given the
manner of entry, defendant had no opportunity to object to the inclusion of this provision.
Furthermore, defendants contend that the inclusion of the provision prejudiced defendant
because he had a pending tort claim against plaintiff, which would be barred by this provision.
Accordingly, we vacate the judgment of divorce and remand for proper entry of the judgment in
accordance with MCR 2.602(B).

       We affirm in part, vacate the entry of the divorce judgment, reverse the order awarding
attorney fees, and remand to the trial court for further proceedings. We do not retain jurisdiction.



                                                             /s/ Michael F. Gadola
                                                             /s/ Mark J. Cavanagh
                                                             /s/ Brock A. Swartzle




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