            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARK EDWARD RAINWATER,                                              UNPUBLISHED
                                                                    April 18, 2019
               Plaintiff-Appellant,

v                                                                   No. 341989; 342418
                                                                    Eaton Circuit Court
                                                                    Family Division
NICOLE ILENE RAINWATER, also known as                               LC No. 2015-000642-DM
NICOLE ILENE CHAMPION,

               Defendant-Appellee.


Before: BORRELLO, P.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

       In Docket No. 341989, plaintiff appeals by leave granted1 the trial court’s order denying
his motion to enforce or set aside the property settlement agreement incorporated into the parties’
judgment of divorce (JOD). In Docket No. 342418, plaintiff appeals by right the trial court’s
order awarding defendant attorney fees on the basis that plaintiff’s motion was frivolous and that
he engaged in misconduct in conducting a deposition.

       For the reasons discussed below, the trial court erred in determining that plaintiff’s
motion to enforce the JOD was untimely and that it lacked the authority to consider the motion.
For the same reasons, the trial court erred in finding that the motion was frivolous. Accordingly,
we reverse the trial court’s order denying plaintiff’s motion, and we reverse the order awarding
attorney fees to the extent that the award was based on the determination that plaintiff’s motion
was frivolous. However, because the trial court did not clearly err in determining that plaintiff
engaged in misconduct in conducting a deposition, we affirm the award of attorney fees for fees
incurred because of the deposition. We remand for further proceedings consistent with this
opinion.


1
  Rainwater v Rainwater, unpublished order of the Court of Appeals, entered June 26, 2018
(Docket No. 341989).



                                                -1-
                 I. DOCKET NO. 341989—MOTION TO ENFORCE THE JOD

                                        A. BACKGROUND

       The parties divorced in 2015. The consent judgment of divorce contained a property-
settlement provision providing for the division of marital property:

               IT IS FURTHER ORDERED AND ADJUDGED that any remaining
       personal property shall be divided between the parties, any personal property that
       the parties are not in agreement as to who shall receive it, such item shall be sold
       and the net proceeds divided equally between the parties.

According to plaintiff, the parties attempted to work together to divide the marital property.
However, the two experienced difficulties and were ultimately unable to work out a satisfactory
division of the property, including their deceased minor son’s items.

        In September 2017, plaintiff filed a motion to either enforce the property settlement, or,
in the alternative, to set aside the property settlement and reach a new agreement for property
division. At the motion hearing, much was made of a provision in the JOD providing that
plaintiff could use the barn located at the marital home for nine months to store his personal
property. Based on this provision, the trial court determined that plaintiff’s motion was untimely
and that it did not have authority to grant his requested relief. The court also ruled that plaintiff’s
motion was not timely under MCR 2.603 (default judgments) and MCR 2.612 (relief from
judgment). In addition, the trial court indicated that it did not have authority to consider
plaintiff’s motion because the JOD resolved all of the parties’ claims relating to the divorce.
Regarding the parties’ deceased son’s items, the court opined that the proper forum for these
concerns was the probate court, not the circuit court. The trial court ultimately denied plaintiff’s
motion, as well as a motion for reconsideration.

                                         B. DISCUSSION

        “A divorce judgment entered by agreement of the parties represents a contract” that we
interpret de novo as a question of law. Rose v Rose, 289 Mich App 45, 49; 795 NW2d 611
(2010). We also review de novo the interpretation and application of court rules. Lech v
Huntmore Estates Condo Ass’n, 315 Mich App 288, 290; 890 NW2d 378 (2016).

        To begin, the trial court erred in determining that plaintiff’s motion to enforce the JOD
was untimely under MCR 2.603 and MCR 2.612. MCR 2.603 was not applicable in this case
because plaintiff was not seeking relief from a default judgment. MCR 2.612 governs relief from
judgment and therefore was applicable to plaintiff’s alternative request to set aside the property
settlement. However, plaintiff was primarily seeking to enforce the property settlement. Thus,
even assuming that the motion to set aside the JOD was untimely MCR 2.612, that would have
no bearing on plaintiff’s motion to enforce the JOD. In short, the trial court focused too heavily
on plaintiff’s alternative request to set aside and replace the settlement provisions. In examining
the motion, it is clear that this was a cursory argument and that plaintiff’s real desire was for the
court to enforce the property settlement. The trial court failed to adequately address both of
plaintiff’s arguments.


                                                 -2-
       Under MCL 600.5809(3), the period of limitations for enforcing a JOD is 10 years.
Peabody v DiMeglio, 306 Mich App 397, 405; 856 NW2d 245 (2014). The parties’ JOD was
entered in 2015, and plaintiff filed his motion in 2017. Therefore, plaintiff’s motion to enforce
the JOD was timely brought within 10 years.

       The trial court also erred concluding that plaintiff’s claims regarding the distribution of
the marital estate were time-barred by the JOD. Again, the trial court based that ruling on a
provision providing that plaintiff had nine months to use the barn to store his personal property:

               IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall be
       entitled to use of the barn located at the marital home to store his personal
       property for a period of nine (9) months after the entry of this Judgment of
       Divorce. Plaintiff shall be required to notify Defendant in advance when he needs
       access to the barn.

However, there is nothing in the JOD to suggest that the parties had nine months to divide or sell
the martial personal property. We note that plaintiff made allegations in his motion pertaining to
his recovery of personal property stored at the marital home. So the trial court’s conflation of
these issues is somewhat understandable. At oral argument, however, plaintiff clarified that he
was seeking division of the marital personal property in accordance with the JOD. Indeed,
plaintiff provided an inventory of the marital property to which he claimed half the value of.

        In sum, the time-limit for plaintiff storing his personal property in the barn had no
bearing on the division of the marital estate. And there is no language in the JOD indicating that
the parties had to divide the marital property within a certain amount of time. Nor is there any
provision providing that that defendant would receive exclusive ownership of the marital
property in the event that the parties were unable to divide it. Again, the pertinent provision
provides:

       IT IS FURTHER ORDERED AND ADJUDGED that any remaining personal
       property shall be divided between the parties, any personal property that the
       parties are not in agreement as to who shall receive it, such item shall be sold and
       the net proceeds divided equally between the parties. [Emphasis added.]

This provision plainly and unambiguously states that in the event that the parties could not agree
on property division, such property was to be sold and the proceeds divided between them.

        The trial court also erred in stating that that it had no authority to address plaintiff’s
motion because the JOD resolved all claims related to the divorce. While the JOD fully satisfied
all claims related to the divorce, the trial court retained authority to hear matters relating to the
JOD’s obligations:

               IT IS FURTHER ORDERED AND ADJUDGED that the provisions of
       this Judgment of Divorce fully satisfy all claims that either party may have
       against the other except for the obligations and reservations contained herein, and
       except for child-related matters which are herein set forth. [Emphasis added.]



                                                 -3-
One such obligation was the property settlement provision, which, as previously discussed,
required the parties to divide the marital property and, if they could not do so, to sell the property
and divide the proceeds.

      Moreover, the JOD explicitly gave the trial court authority to interpret and enforce the
JOD’s provisions, which is exactly what plaintiff’s motion asked the court to do:

               IT IS FURTHER ORDERED AND ADJUDGED that the court retains
       jurisdiction to interpret and enforce any and all provisions of this Judgment of
       Divorce.

Therefore, the trial court possessed authority to address plaintiff’s motion, which was not an
attempt to litigate another issue of the divorce that the JOD had fully satisfied and barred.
Rather, the motion was an attempt to enforce provisions of the JOD. Accordingly, we remand to
the trial court so that it can consider the merits of plaintiff’s motion. 2

                         II. DOCKET NO. 342418—ATTORNEY FEES

                                       A. BACKGROUND

        After the trial court denied plaintiff’s motion, defendant filed a motion for costs and
attorney fees. The trial court granted the motion, ruling that plaintiff’s motion to either set aside
or enforce the property settlement provisions was frivolous. Further, the court found that
plaintiff committed misconduct during his deposition of David R. Fox. Plaintiff deposed Fox in
relation to his motion for contempt alleging that defendant violated the JOD by using Fox to
reveal plaintiff’s criminal history to the parties’ children. The court ordered that defendant
provide an itemize billing relating to the motion and deposition and address the factors for
determining reasonable attorney fees. After a hearing to address the contested billings, the trial
court awarded defendant attorney fees in the amount of $3,542.50.

                                         B. DISCUSSION

        The decision to award attorney fees is reviewed for an abuse of discretion. Smith v
Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008). “An abuse of discretion occurs when the
trial court’s decision is outside the range of reasonable and principled outcomes.” Id. A trial
court’s findings of fact relating to the award of attorney fees are reviewed for clear error. Reed v
Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005).




2
  As for the deceased child’s belongings, the probate estate closed years ago. Assuming that the
earlier probate proceedings resulted in plaintiff and defendant receiving the child’s items, these
items became a part of the marital estate because they were property that came to “either party
by reason of the marriage.” MCL 552.19.


                                                 -4-
        A court may assess costs and attorney fees against a party as a sanction for bringing a
frivolous claim. MCR 1.109(E)(7);3 MCR 2.625(A)(2); MCL 600.2591(1). For the reasons
stated above, plaintiff’s motion to enforce the JOD was not frivolous. Accordingly, the trial
court clearly erred in awarding defendant attorney fees incurred because of the motion.
However, we disagree with plaintiff that the trial court clearly erred in finding that he committed
misconduct during the deposition of Fox and therefore affirm the award for costs incurred in
connection with the deposition.

       MCR 2.306(D)(2) provides, “On motion, the court may impose an appropriate sanction—
including the reasonable expenses and attorney fees incurred by any party—on a person who
impedes, delays, or frustrates the fair examination of the deponent or otherwise violates this
rule.” A court may also award attorney fees incurred due to a party’s misconduct. Reed, 265
Mich App at 164-165. Misconduct occurs when the other party engages in “unreasonable
conduct in the course of the litigation.” Id. at 165 (quotation marks and citation omitted).

        While the deposition began with plaintiff asking Fox questions pertinent to the motion for
contempt, plaintiff soon veered off course. Plaintiff asked if Fox had received or been promised
any sexual favors from defendant. Plaintiff also asked if Fox had engaged in a sexual
relationship with defendant and if Fox had been married before. Plaintiff demanded of Fox what
right he had to inject himself into the situation between plaintiff and defendant. Furthermore,
plaintiff asked if Fox had a “history . . . of contacting random people over things you believe to
be an injustice?” Plaintiff further asked, “Is that the reason why you don’t work, Mr. Fox, is
because you’re busy calling, making calls?” Finally, plaintiff asked, “So you feel it’s your duty
to right all the wrongs in the world?” Given the combative nature of that irrelevant line of
questioning, the trial court did not clearly err in finding that plaintiff’s conduct was
unreasonable.

                                       III. CONCLUSION

        The trial court erred in determining that plaintiff’s motion was untimely and that the court
lacked the authority to consider the motion. For the same reasons, the trial court erred in finding
that the motion was frivolous. Accordingly, we reverse the trial court’s order denying plaintiff’s
motion and remand so that the court can address the merits of the motion. We also reverse the
order awarding attorney fees to the extent that the award was based on the determination that
plaintiff’s motion was frivolous. However, because the trial court did not clearly err in
determining that plaintiff engaged in misconduct during Fox’s deposition, we affirm the award of
attorney fees to the extent that the fees were incurred because of that deposition. We remand for
further proceedings consistent with this opinion. We do not retain jurisdiction.

                                                             /s/ Stephen L. Borrello
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael J. Riordan


3
  The court rule governing sanctions was previously found in MCR 2.114, which was repealed
effective September 1, 2018.


                                                -5-
