                          STATE OF MICHIGAN

                           COURT OF APPEALS



CHERYL GRACE LEMAUX,                                               UNPUBLISHED
                                                                   May 21, 2015
              Plaintiff-Appellant,

v                                                                  No. 320236
                                                                   Wayne Circuit Court
ANTHONY BRIAN LEMAUX,                                              LC No. 92-220739-DM

              Defendant-Appellee.


Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ.

PER CURIAM.

       This appeal arises out of the divorce of plaintiff, Cheryl Lemaux, and defendant, Anthony
Lemaux. Plaintiff appeals as of right from an order dismissing her claim seeking a portion of
defendant’s pension and employment benefits. We vacate and remand for further proceedings.

                                      I. BACKGROUND

        Plaintiff and defendant were married on February 2, 1979. On July 27, 1992, plaintiff
filed a divorce complaint against defendant. When plaintiff was unable to locate defendant to
serve him with the complaint, the trial court ordered her to publish notice of the proceedings in
the Detroit Legal News for three consecutive weeks. When defendant still did not appear, on
February 2, 1993, the trial court entered a default judgment of divorce in favor of plaintiff.
However, the court reserved the issue of plaintiff’s entitlement to defendant’s employment
benefits and pension rights for future adjudication.

        In 2012, plaintiff filed a motion to assess her interest in defendant’s pension and
employment benefits, alleging that she was entitled to 50% of defendant’s pension. On June 10,
2013, defendant filed a response to plaintiff’s motion, asserting that plaintiff’s claim was time
barred by the 10-year statute of limitations set forth in MCL 600.5809. The trial court
entertained arguments regarding plaintiff’s motion, and ordered the parties to submit
supplemental briefing on the issue of the reserved pension interest and whether this Court’s
opinion in Yeo v Yeo, 214 Mich App 598; 543 NW2d 62 (1995) was applicable to the case. Both
parties submitted supplemental briefs on the issue of whether plaintiff’s claim was time barred.

       On October 9, 2013, the parties both appeared for a status conference. Following the
conference, the trial court suggested that the parties consult an expert in pension benefits to
determine if reaching a settlement would be more beneficial. The court ordered the parties to

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call the court on or before October 23, 2013, to provide an update. Plaintiff did not call by the
specified date. The court then scheduled a conference call for December 5, 2013, but plaintiff
and her counsel failed to appear. In response, the trial court sua sponte dismissed plaintiff’s
claim without prejudice, stating that “[t]his [was] not the first time Plaintiff’s Counsel failed to
appear for a scheduled conference.” After the dismissal, the trial court denied plaintiff’s motion
to reinstate the case.

                                  II. STANDARD OF REVIEW

        We review a trial court’s decision to dismiss a case for failure to comply with a court
order for an abuse of discretion. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 630; 750
NW2d 228 (2008). A trial court abuses its discretion when it reaches a decision that falls outside
of the range of principled outcomes. Keinz v Keinz, 290 Mich App 137, 141; 799 NW2d 576
(2010). The interpretation of a court rule is a question of law that we review de novo. ISB Sales
Co v Dave’s Cakes, 258 Mich App 520, 526; 672 NW2d 181 (2003).

                                        III. DISCUSSION

       Plaintiff contends that the trial court abused its discretion when it dismissed her case
without considering the guidelines set forth in Vicencio v Ramirez, 211 Mich App 501, 507; 536
NW2d 280 (1995), and without evaluating any other available options on the record. We agree.

       MCR 2.401(G) sets forth the rules governing a party’s failure to attend or to participate in
a scheduled conference. MCR 2.401(G) provides the following:

               (1) Failure of a party or the party’s attorney . . . to attend a scheduled
       conference or to have information and authority adequate for responsible and
       effective participation in the conference for all purposes, including settlement, as
       directed by the court, may constitute a default to which MCR 2.603 is applicable
       or a ground for dismissal under MCR 2.504(B).

MCR 2.504(B) governs the procedure for involuntary dismissal, and provides the following:

             (1) If a party fails to comply with these rules or a court order, upon motion
       by an opposing party, or sua sponte, the court may enter a default against the
       noncomplying party or a dismissal of the noncomplying party’s action or claims.

       Plaintiff first contends that the trial court abused its discretion in dismissing her claim
because a trial court may not order dismissal sua sponte. As indicated above, MCR 2.504(B)(1)
expressly allows a trial court to dismiss a party’s claim sua sponte. Thus, plaintiff’s first
contention is without merit. The trial court did not abuse its discretion in this regard.

       Plaintiff also argues that the trial court abused its discretion because it was required to
consider a list of factors in determining an appropriate sanction and did not evaluate other
options on the record. “Dismissal is a drastic step that should be taken cautiously.” Vicencio,
211 Mich App at 506. “Before imposing such a sanction, the trial court is required to carefully
evaluate all available options on the record and conclude that the sanction of dismissal is just and


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proper.” Id. A trial court’s failure to consider other options constitutes an abuse of discretion.
Id. A list of factors courts should consider when dismissing a case includes the following:

       (1) whether the violation was willful or accidental; (2) the party’s history of
       refusing to comply with previous court orders; (3) the prejudice to the opposing
       party; (4) whether there exists a history of deliberate delay; (5) the degree of
       compliance with other parts of the court’s orders; (6) attempts to cure the defect;
       and (7) whether a lesser sanction would better serve the interests of justice.
       [Vicencio, 211 Mich App at 507.]

The trial court did not hold a hearing to determine whether dismissal was appropriate, and the
only evidence on this issue available in the record is the order of dismissal. The order states the
following:

              THIS MATTER having come before the Court pursuant to a Status
       Phone Conference, and Plaintiff or Plaintiff’s Counsel having failed to appear
       although properly notified of the hearing date and time, and the Court being duly
       advised in the premises:

               IT IS HEREBY ORDERED that this matter is DISMISSED without
       prejudice due to Plaintiff’s Counsel’s failure to appear for the Status Phone
       Conference scheduled at 9:00AM. Defendant’s Counsel appeared in person
       before this Court for said conference. This is not the first time Plaintiff’s Counsel
       failed to appear for a scheduled conference. Plaintiff’s Counsel’s office indicated
       that there was no way to reach Counsel.

       Without further analysis, the trial court dismissed plaintiff’s case after concluding that
this was “not the first time” plaintiff’s counsel failed to appear for a scheduled conference. It is
unclear whether plaintiff’s counsel’s absence at the conference was willful or accidental. The
record provides no evidence that defendant was prejudiced by plaintiff and her counsel’s failure
to appear. Although plaintiff and her counsel failed to comply with a court order to provide an
update by October 23, 2013, and failed to attend the phone conference on December 5, 2013, the
record reveals that before these incidents, plaintiff was actively participating in the proceedings
and complying with court orders. Plaintiff fully participated in the arguments on her motion,
provided supplemental briefing when the court requested it, and participated in previous status
conferences. The record provides no evidence that plaintiff had a history of attempting to
deliberately delay the case. There is also no evidence that the trial court considered any options
besides dismissal. Under these circumstances, the trial court abused its discretion when it
dismissed plaintiff’s claim.1



1
  Plaintiff additionally argues that the trial court should have excused the failure to appear
because dismissal would result in manifest injustice because divorce proceedings are equitable in
nature and dismissal is not a fair result, and because the failure to appear was not due to culpable
negligence. See MCR 2.401(G)(2)(a) and (b). Because we conclude that the court did not


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        Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                           /s/ William B. Murphy
                                                           /s/ Cynthia Diane Stephens
                                                           /s/ Michael F. Gadola




sufficiently comply with the procedural instructions of Vicencio in dismissing plaintiff’s claim,
we need not reach these arguments.


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