                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARYJANE BEATRICE COX,                                             UNPUBLISHED
                                                                   November 15, 2018
              Plaintiff-Appellant,

v                                                                  Nos. 338642 & 339950
                                                                   Tuscola Circuit Court
LARRY ELLIS COX,                                                   LC No. 08-024869-DM

              Defendant-Appellee.


Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

         In these consolidated appeals, plaintiff, Maryjane Cox (Maryjane), appeals by right the
trial court order denying her motion for reconsideration regarding attorney fees, and she appeals
by delayed leave granted1 the trial court’s order regarding child support. For the reasons stated
in this opinion, we affirm.

                                       I. BASIC FACTS

         The parties—Maryjane and defendant Larry Cox (Larry)—divorced in 2009. In July
2016, the friend of the court reviewed Larry’s child-support obligations and recommended that
he pay $392 in support for one child and $611 in support for two children. Maryjane objected to
the recommendation and the matter was set for an evidentiary hearing. Following the hearing,
the trial court issued an opinion finding that Maryjane’s yearly income was $25,000 and Larry’s
yearly income was $51,000. The court found that the parties’ son had no overnight visits with
Larry, but the parties’ daughter spent 118 overnights with Larry per year.

       Based on the court’s findings, Larry submitted a proposed Uniform Child Support Order
(UCSO). Maryjane objected to the order, arguing that it contained several errors. She also
moved for reconsideration of the court’s finding that her yearly income was $25,000. She
argued that her only income was the $15,000 per year she earned in interest on her inheritance,
and she contended that the court had improperly attributed an additional $10,000 per year to her


1
 Cox v Cox, unpublished order of the Court of Appeals, entered March 5, 2018 (Docket No.
339950).


                                               -1-
gross income based on amounts she drew from the principal of her inheritance. Maryjane also
sought attorney fees and costs under MCR 3.206(2)(C)(a), contending that she could not afford
to defend the action and that Larry could afford to pay her attorney fees. The trial court agreed
that there were errors in the proposed UCSO, so it entered a proposed order submitted by
Maryjane. However, it denied her motion for reconsideration, noting that under the statutorily
authorized2 Michigan Child Support Formula (MCSF), inheritance was only “generally”
excluded from being considered part of a parent’s income. The court also stated that the parties
would have to file a separate request before the court would consider whether an award of
attorney fees was proper.

        Thereafter, Maryjane submitted a request for attorney fees. Additionally, she filed an
amended motion for reconsideration, alleging that there were errors in the court’s calculation of
child support, and again asserting that the principal of her inheritance could not be considered
income. The trial court entered an order denying her motion for reconsideration, reasoning that
Maryjane had not established a palpable error by which the court and the parties were misled. In
addition, the court awarded Maryjane only $1,000 in attorney fees after concluding that Larry
had the ability to pay and Maryjane could not afford to pay without using her support assets.

                                 II. CHILD-SUPPORT ORDER

                                 A. STANDARD OF REVIEW

        Maryjane argues that the trial court erred by including the money she withdrew from the
principal of her inheritance as income. Challenges to the modification of a child support order
are reviewed for an abuse of discretion. Clarke v Clarke, 297 Mich App 172, 178-179; 823
NW2d 318 (2012). “However, whether the trial court properly applied the MCSF presents a
question of law that we review de novo.” Id. at 179. In addition, where the issue to be reviewed
involves “matters committed by the MCSF to the discretion of the trial court,” our review is for
an abuse of discretion, which occurs “when a court selects an outcome that is not within the
range of reasonable and principled outcomes.” Borowsky v Borowsky, 273 Mich App 666, 672;
733 NW2d 71 (2007). “Finally, to the extent that the trial court made factual findings in
determining the amount of support under the child support formula, those findings are reviewed
for clear error.” Id.

                                         B. ANALYSIS

        “[O]nce a trial court decides to order the payment of child support, the court must ‘order
child support in an amount determined by application of the child support formula . . . .’ ” Id. at
673, quoting MCL 552.605(2). “A trial court must strictly comply with the requirements of the
MCSF in calculating the parents’ support obligations unless it ‘determines from the facts of the
case that the application of the child support formula would be unjust or inappropriate . . . .’ ”
Id., quoting MCL 552.605(2). Thus, if the court deviates from the formula, it must set forth in
writing or on the record several findings, including the reasons for the deviation. Id.


2
    See MCL 552.519(3)(vi).


                                                -2-
        At the time of the instant proceedings, the 2013 version of the MCSF was effective.
Under the MCSF, “[t]he first step in figuring out each parent’s support obligation is to determine
both parents’ individual incomes.” 2013 MCSF 2. The term “net income” includes, by
definition, “all income minus the deductions and adjustments permitted by this manual.” 2013
MCSF 2.01(A). Although the formula includes an enumerated list of items that constitute
income, it also expressly provides that “income” is not limited to the items listed. 2013 MCSF
2.01(C). Two provisions in the MCSF expressly address a parent’s inheritance. First, under
2013 MCSF 2.01(H), “[i]nterest earned or potentially earned on inheritances and gifts (§
2.05(A)) should be considered as income.” Second, 2013 MCSF 2.05(A) provides, “[i]ncome
generally does not include property or principal from an inheritance or one-time gift. Income
includes the interest earned on those assets. . . .”

        On appeal, Maryjane advocates that we interpret 2013 MCSF 2.05(A) as categorically
prohibiting a court from considering the principal of a parent’s inheritance as income. However,
when interpreting the MCSF, “courts must comply with the plain language of the MCSF, and
may not read language into the MCSF that is not present.” Clarke, 297 Mich App at 179. The
adverb “generally” means “in general; extensively, though not universally; most frequently, but
not without exceptions.” Webster’s New Twentieth Century Dictionary Unabridged (2d ed).
Thus, by stating that income generally does not include principal from an inheritance, the
formula contemplates that, under some circumstances, the principal from an inheritance can be
counted under the formula as income. This is in direct contrast with other sections of the MCSF,
which unequivocally prohibit the consideration of certain types of monies. See 2013 MCSF
2.03(B) (“A child’s Supplemental Security Income (SSI) benefits cannot be considered as
income, nor used to reduce a parent’s support obligation.”); 2013 MCSF 2.04(A) (“Income does
not include the value of benefits from means tested sources such as Temporary Assistance to
Needy Families (TANF), food stamps, the federal Earned Income Credit, and Supplemental
Security Income (SSI).”); and 2013 MCSF 2.07(A)(2) (“Alimony/spousal support paid between
the parents in the case under consideration is not included as its recipient’s income, but remains
its payer’s income.”). “Generally, when language is included in one section of a statute but
omitted from another section, it is presumed that the drafters acted intentionally and purposely in
their inclusion or exclusion.” Menard, Inc v Dep’t of Treasury, 302 Mich App 467, 471; 838
NW2d 736 (2013). For these reasons, we conclude that the plain language of the MCSF
contemplates circumstances where the principal on an inheritance may be considered income.

        Nevertheless, the MCSF does not explicitly state when the principal of an inheritance can
be included in a parent’s income. As a result, the answer to that question is left to the discretion
of the trial court, guided by the policies set forth in the MCSF. Here, the trial court looked to
2013 MCSF 2.01(B) to support its decision to include draws on the principal of Maryjane’s
inheritance as income. That provision provides:

              The objective of determining net income is to establish, as accurately as
       possible, how much money a parent should have available for support. All
       relevant aspects of a parent’s financial status are open for consideration when
       determining support. [2013 MCSF 2.01(B).]




                                                -3-
The court reasoned that under the language used in 2013 MCSF 2.05(A), “while the total
principal would not be utilized, a draw on the principal may be allowed” as there is “nothing to
preclude this.” The court explained that if Maryjane was drawing on the principal on a yearly
basis, “the monies that [she] draws would be an income and be included for the determination of
child support.”3 On reconsideration, the court elaborated:

              I do not think that a savings account and the inheritance are similar in
       nature. A savings account usually[,] generally, there’s that word, is derived from
       an individual’s actual income and they put away monies from that income to then
       have a source of income for a rainy day fund. And I don’t see her inheritance as
       that. In fact, her inheritance is what caused [Maryjane] to no longer be allowed
       Social Security monies. There is that income and she is drawing from that
       income, in addition to the 15,000 for the interest an additional amount for herself
       to quote, unquote—to have monies available for support. And that is, all relevant
       aspects of her financial status and they are open for consideration when
       determining support.

Therefore, on this record, the trial court carefully considered the nature of the draws on
inheritance, the facts that the draws were relevant parts of Maryjane’s financial status that were
open for consideration when determining support, and the court limited its inclusion of the
principal of the inheritance to the amount that Maryjane was drawing for support rather than the
entire amount. In doing so, the court recognized that the use of the word “generally” gave it
discretion to consider draws on the principal of Maryjane’s inheritance. Although a different
court may have exercised its discretion differently and wholly excluded the draws on principal
from the determination of Maryjane’s income, we cannot conclude that the trial court’s decision
to go the other way on this close question was an abuse of discretion. See e.g., People v Smith,
456 Mich 543, 550; 581 NW2d 654 (1998) (noting that close questions arising from a court’s
exercise of discretion are not an abuse of discretion just because the reviewing court would have
ruled differently).4 5




3
  The court imputed a $10,000 per year draw on principal, but invited Maryjane to submit
additional evidence on reconsideration if the projected amount of the draw was incorrect.
Maryjane did not submit any additional evidence challenging the amount of the projected draw,
nor does she challenge the court’s calculation on appeal. Accordingly, we make no decision
regarding whether the court clearly erred by finding that Maryjane drew $10,000 per year from
the principal of her inheritance.
4
  Maryjane relies on this Court’s decision in Borowsky, 273 Mich App 666. That case, however,
did not address whether a court had discretion to sometimes include draws on the principal of a
parent’s inheritance as income. Accordingly, it is distinguishable from the present case.
Additionally, although Maryjane sometimes refers to her inheritance as her “savings,” there is no
evidence in the record to support that her inheritance is, in fact, in a savings account. Instead,
her testimony at the evidentiary hearing suggested that the majority of the inheritance was in the
form of “investments.” Moreover, in Borowsky, this Court concluded that there was no support


                                               -4-
        Maryjane next challenges the trial court’s computation of child support. She explains
that the trial court used Marginsoft to apply the MCSF, but her lawyer used Prognosticator,6 and
she contends that there is a discrepancy of approximately $40 per month between her lawyer’s
results and the court’s results. Maryjane contends that, because both programs purport to use the
Michigan Child Support Formula, the results should be identical or close to identical. She asks
this Court to remand to the trial court with instructions that the court disclose the Marginsoft
calculations that the court used to determine the amounts used in the child support order. We
decline to do so.

       Maryjane brought this issue before the court as part of her motions for reconsideration.
In response to the first motion, the court noted that the difference between the programs used
could be attributed to the fact that the court gave Maryjane deductions for the children, but
Maryjane’s lawyer attributed the deductions for the children to Larry. In response to the second
motion, the trial court stated:

               [Maryjane] has requested that the Court reconsider its determination of
       child support. Specifically, [she] argues that given the information that the Court
       provided on January 9, 2017, that application to the Prognosticator provides a
       different result. First, the Court utilized Marginsoft for the determination of child
       support. This is a different program than utilized by [Maryjane’s lawyer].
       Secondly, [Maryjane] failed to provide a deduction for [Larry’s] pension, as was
       allowable and recognized by the Court in its determination. Upon examination of
       [Maryjane’s] Exhibit A (attached to the motion, [Maryjane] did not provide for
       this deduction. In summary, the Court has carefully reviewed the motion.
       [Maryjane] has demonstrated no palpable error by which the Court and the parties
       have been misled. Thus, pursuant to MCR 2.119(F), the motion is considered and
       denied.

We review for an abuse of discretion a court’s decision to deny a motion for reconsideration.
Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). Here, given the
trial court’s careful consideration of the issue, we conclude the trial court did not abuse its
discretion in denying Maryjane’s motion for reconsideration.



for the trial court to conclude that withdrawals from a savings account could be treated as income
under the MCSF, id. at 677, but in this case there is support in the MCSF to treat the principal of
an inheritance—under some circumstances—as income. Therefore, the fact that Maryjane’s
inheritance might be in a savings account is not dispositive.
5
  Nothing in this opinion should be read as preventing the trial court from exercising its
discretion differently if faced with a future motion to modify child support. The trial court is in
the best position to evaluate such questions and, in the future, it may conclude that draws on the
principal of Maryjane’s inheritance should not be counted as income to her.
6
  Prognosticator and Marginsoft are commercial programs that allow an individual to input
information and receive a calculation of support obligations using the MCSF.


                                                -5-
                                    III. ATTORNEY FEES

                                 A. STANDARD OF REVIEW

        Maryjane argues that the trial court abused its discretion by only ordering Larry to pay
$1,000 in attorney fees. “We review a trial court’s grant or denial of attorney fees for an abuse
of discretion.” Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). “Any findings of
fact on which the trial court bases an award of attorney fees are reviewed for clear error, but
questions of law are reviewed de novo.” Id. (citations omitted).

                                         B. ANALYSIS

        “[A]ttorney fees are not ordinarily recoverable unless a statute, court rule, or common-
law exception provides the contrary.” Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004)
(quotation marks and citation omitted). For domestic relations matters, attorney fees are
authorized by court rule and by statute. Reed, 265 Mich App at 164. “The party requesting the
attorney fees has the burden of showing facts sufficient to justify the award.” Borowsky, 273
Mich App at 687.

       Here, Maryjane sought attorney fees under MCR 3.206(C), which 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.

Typically, this rule has been interpreted to require an award of attorney fees to the extent
“necessary to enable a party to prosecute or defend a suit.” Myland v Myland, 290 Mich App
691, 702, 804 NW2d 124 (2010) (citation and quotation marks omitted). “[A] party sufficiently
demonstrates an inability to pay attorney fees when that party’s yearly income is less than the
amount owed in attorney fees.” Id. Additionally, “[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.’ ” Id., quoting Maake v Maake, 200
Mich App 184, 189; 503 NW2d 664 (1993).

        Maryjane contends that the trial court abused its discretion by only awarding $1,000
rather than the approximately $10,500 in attorney fees and costs reflected in the bills submitted
to the court by her lawyer. Although Maryjane’s yearly income of $25,000 is not less than the
amount owed in attorney fees, Myland does not stand for the proposition that a parent lacks

                                                -6-
sufficient assets only when his or her yearly income is less than the amount owed in attorney
fees. And, in this case, the trial court found that Maryjane lacked the ability to pay without
invading her support assets, and it found that Larry had the ability to pay. Larry has not
challenged those findings on appeal. Accordingly, we assign no error in the court’s decision to
award attorney fees under MCR 3.206(C)(a).

        Likewise, however, we discern no abuse of discretion in the court’s decision to only
award $1,000 in attorney fees. Maryjane directs this Court to Gates v Gates, 256 Mich App 420;
664 NW2d 231 (2003). In that case, this Court held that the trial court abused its discretion by
awarding only $5,500 out of the $70,900 in attorney fees and costs requested by the defendant.
Id. at 438. In Gates, however, the “plaintiff enjoyed a comparatively substantial income
advantage following the judgment of divorce,” which was one of the reasons this Court found the
trial court had abused its discretion. Id. at 438-439. Here, the trial court recognized that the
disparity between Maryjane’s income and Larry’s income was lessened by the child support that
Larry was paying per month. Moreover, unlike the present case, the defendant in Gates would
have had to invade the assets she was awarded in the judgment of divorce in order to pay her
attorney fees whereas Maryjane had an inheritance of roughly $341,000 available to her from
which she could pay her fees. See id. at 438.

        Maryjane also contends that the trial court’s stated rationale for awarding only a fraction
of the requested attorney fees was brief and lacked specificity. We disagree. The court found
that based on the materials submitted that Maryjane’s lawyer “spent approximately more than
twice as much time on the issue of child support as” Larry’s lawyer. The court clarified that
Maryjane’s lawyer had spent 40 hours on the case and compared it to the 14.5 hours spent by
Larry’s lawyer, “who does not concentrate his practice in the area of Family Law . . . .” The
court also found that the results of the proceedings were favorable to Larry, and that the matter
was a child support case, which is not as complex as other matters, i.e. custody. The court noted
that it had reviewed each line of the billing statements submitted and added that it was
considering the nature of the assessments. Although the court did not explicitly state how it was
viewing that information, considering the whole of the court’s opinion, it is plain that the court
concluded that Maryjane’s lawyer had billed an excessive number of hours when compared to
the complexity of the issue and his expertise in family law. Accordingly, the court found that
attorney fees in the amount of $1,000 were warranted, but additional fees were not. On this
record, the court’s finding was not an abuse of discretion.

       Affirmed. Maryjane may not tax costs. MCR 7.219(A).



                                                            /s/ Michael J. Kelly
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey




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