                              STATE OF MICHIGAN

                               COURT OF APPEALS



CYNTHIA HOBBS,                                                            UNPUBLISHED
                                                                          February 14, 2017
                  Plaintiff-Appellee/Cross-Appellant,

v                                                                         No. 325835
                                                                          Washtenaw Circuit Court
RAYMOND HOBBS,                                                            LC No. 13-000103-DO

                  Defendant-Appellant/Cross-
                  Appellee.


Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ.

PER CURIAM.

        In this appeal and cross-appeal involving an antenuptial agreement, the parties1 appeal as
of right the trial court’s entry of a divorce judgment following a bench trial. We affirm in part
and remand for further proceedings consistent with this opinion.

                                     I. FACTS AND PROCEDURE

        The parties met in 1994 and dated for four years before marrying in 1998. Several
months before the wedding, Raymond informed Cynthia of his desire that they enter an
antenuptial agreement. He provided her with a draft agreement roughly one month before the
scheduled wedding, which Cynthia reviewed and discussed with an attorney. Several days
before the wedding, Raymond presented Cynthia with a final draft, which both parties executed.
In pertinent part, the executed antenuptial agreement provided as follows:

                  B.      We mutually desire to define our financial rights and
                          responsibilities with respect to each other.

                  C.      Each of us intends, by entering into this agreement, to limit the
                          right of the other to participate in our separate estates in the event
                          that our future marriage is terminated by death, divorce, separate
                          maintenance, or annulment.

                  D.      Each of us has fully disclosed to the other all of our assets and
                          liabilities.

1
    For the sake of clarity, we will refer to the parties by their first names.

                                                     -1-
                                    * * *

      G.     [Cynthia] represents that she is 48 years of age (date of birth
             January 14, 1950) and [Raymond] represents that his is 45 years of
             age (date of birth December 2, 1952).

      H.     Both parties represent that they are in good health.

                                    * * *

       In consideration of the mutual promises in this agreement and our
forthcoming marriage, we agree:

1.    ASSETS AND LIABILITIES. [The parties’] individual financial
      summaries have been attached to this agreement as Exhibits “A” and
      Exhibit “B”, respectively. Our summaries are intended to be reasonable
      approximations, but not precise delineations. The representations each of
      us has made in the summaries constitute full disclosure of our financial
      situations, subject only to the caveat that the summaries were prepared
      informally.

2.    PREMARITAL PROPERTY. With respect to all property owned by us in
      our individual names prior to our marriage:

      a) Premarital Property Shall Remain Separate Property. Except as we
      have explicitly provided elsewhere in this agreement, we agree that all
      property described in the attached summaries of separate property shall
      remain as separate property. In addition, the tangible personal property
      (which is not itemized on the attached Exhibits) owned by each of us shall
      remain as separate property.

                                    * * *

      b) Premarital Retirement Plans. Any retirement benefits owned by either
      of us at the time of the marriage shall remain separate property.

                                    * * *

3.    PROPERTY ACQUIRED AFTER MARRIAGE.

      a) Property Acquired by Gift or Inheritance. Any property which either of
      us acquires individually by reason of gift or inheritance after our marriage,
      shall be deemed the separate property of that party.

      b) Earned Income. Any income earned during the marriage from
      employment, including wages, salaries, commissions, royalties, overtime,
      and similar payments, and including income from sources such as self-



                                       -2-
     employment, partnerships, close corporations, and independent contracts,
     shall be deemed marital property of the parties.

     c) Unearned Income. Except as we have explicitly provided elsewhere in
     this agreement, any unearned income received during the marriage from
     separate property, including income from investments, appreciation,
     dividends, interest, or from passive or active property ownership, shall be
     separate property. Any unearned income received during the marriage
     from marital assets, including income from investments, appreciation,
     dividends, interest, or from passive or active property ownership, shall be
     marital property.

     d) Retirement Plans. Any contributions to qualified or unqualified
     pension, profit-sharing or other retirement plans during the marriage, and
     earnings on such contributions, shall be marital property. Post-marital
     earnings and growth in the value of premarital retirement plans shall be
     separate property. [Raymond] may, but is not required to, switch his
     deferred compensation account from Fidelity Investments to TIAA CREF
     after the marriage to segregate his post marital retirement savings. In any
     event he shall retain records to document the post marital contributions
     and earnings/growth on those contributions.

     e) Property Purchased with Marital Funds. Any property of any nature
     which is purchased with marital funds shall be marital property. The
     proceeds resulting from the sale of such assets shall be marital property.

     f) Property Purchased with Separate Funds. Any property purchased with
     separate funds shall be deemed separate property unless:

            i) it is titled in the parties’ joint names with survivorship rights, in
            which case it shall be considered marital property; or

            ii) the parties have agreed in writing to deem it marital property.

                                    * * *

7.   UPON DISSOLUTION OF MARRIAGE. In the event of the dissolution
     of our marriage by divorce, separate maintenance, or annulment, we agree:

     a) Marital property shall be equally divided unless the parties agree in
     writing otherwise.

     b) All separate property shall remain as separate property, free of any
     claim by the other.

     c) Neither of us shall seek alimony or spousal support from the other and
     all claims for future alimony/spousal support are waived.



                                       -3-
                                          * * *

      14.    EFFECT. This agreement shall take effect only upon the marriage now
             contemplated by the parties. This agreement contains the entire
             understanding of the parties, and no representations or promises have been
             made except as contained in this agreement.

                                          * * *

      16.    VOLUNTARY AGREEMENT. The parties acknowledge that they have
             entered into this agreement freely and voluntarily, that they have
             ascertained and weighed all the facts, conditions and circumstances likely
             to influence their judgment in entering into this agreement, and that they
             clearly understand and consent to all the provisions of the agreement.
             [Raymond] has had legal counsel . . . and [Cynthia] has had legal counsel.
             ...

According to Cynthia, in the 14 years following their wedding, Raymond became increasingly
controlling and abusive. At trial, she testified as follows:

             Q. [H]ow [we]re you and Ray[mond] relating about things when there
      was a disagreement?

              A. I knew that there were not to be discussions about things. I knew that
      if I brought up money issues at all, I would be putting myself in harm’s way.

             Q. What do you mean by that?

              A. If I asked about investments, Ray[mond] would go from zero to a
      hundred, he would start yelling, screaming obscenities. I would leave the room,
      try to get away from him, and go to a room, and close the door, and he would kick
      in the door with his leg and his foot, and come in and keep screaming at me.
      Screaming.

              Q. Do you feel that you had a choice regarding those payments pertaining
      to the tuition [college tuition for Raymond’s children that was paid with marital
      assets, despite the fact that Raymond indicated in premarital conversations that
      marital assets would not be used for it]?

             A. No.

               Q. And as far as the [household] expenses [paid from Cynthia’s separate
      estate], at the point that Ray[mond] was unemployed, he had retirement money--

             A. Yes.

             Q. --didn’t he?



                                             -4-
              A. Yes.

              Q. Okay, and he also had [a separate] account from his mother, correct?

              A. Yes.

               Q. Could that money not have been applied toward the expenses that you
       folks had?

              A. Could have been.

              Q. Was it?

              A. No.

              Q. So, was this again these series of screaming and yelling, and you felt
       you had to make these payments?

              A. Yes.

              Q. Okay. Now did you talk about leaving him or leaving the marriage?

              A. I didn’t talk about leaving the marriage.

              Q. Was there a time you talked about leaving the marriage?

              A. No. I told him I was scared of him.

              Q. Okay. And what was his response?

              A. He said, if I was scared, if I was that scared of him, I could leave.
       Everything was his. The house was his. The money was his. Nothing was mine.
       Nothing was mine.

              Q. So you could leave, but leave with nothing?

              A. That was repeated to me countless times, countless times.

After a particularly violent incident in mid-December of 2012, Cynthia filed for divorce. In her
divorce complaint, Cynthia acknowledged the existence of the antenuptial agreement, but she
alleged that enforcement of that agreement “would be inequitable.”

         The next month, Raymond filed a motion for summary disposition under MCR
2.116(C)(8) (failure to state a claim upon which relief can be granted) and (C)(10) (no genuine
issue of material fact) regarding the validity and enforceability of the antenuptial agreement.
Raymond argued that (1) it was undisputed that the parties had voluntarily executed the
antenuptial agreement, (2) they had done so absent any fraud, duress, mistake, or nondisclosure
of material facts, (3) there had been no intervening change of fact or circumstance sufficient to



                                               -5-
make enforcement of the antenuptial agreement inequitable, and (4) thus, the trial court was
required to enforce the plain language of the antenuptial agreement.

        Cynthia responded that summary disposition was inappropriate, because there remained
genuine issues of material fact for resolution at trial, and argued that there had been intervening
changes of circumstance that would make enforcement of the antenuptial agreement unfair.
Specifically, Cynthia argued that, viewed together, Raymond’s domestic violence against her, its
impact on her health and ability to work, and her expenditure of her separate assets for marital
expenses constituted a change of circumstances that would make enforcement of the antenuptial
agreement unfair. Additionally, Cynthia argued that Raymond’s motion for summary disposition
was premature because discovery remained ongoing. The trial court agreed, holding that
Raymond’s motion for summary disposition would be denied, without prejudice, to afford the
parties a chance to conduct further discovery. Raymond never renewed his motion for summary
disposition.

         The matter eventually proceeded to a bench trial, which spanned two days. At trial,
Raymond acknowledged that he had commingled marital income with his separate, premarital
assets in his University of Michigan retirement accounts. Rather than providing documentation
of the exact marital contributions, and their subsequent growth, Raymond estimated that
“approximately 6%” was marital. Thus, he requested division of such assets via a coverture
factor.2

       Ultimately, the trial court held that such commingling warranted treating Raymond’s
retirement accounts from the University of Michigan as marital assets. The trial court also
decided that various portions of the parties’ antenuptial agreement were invalid on several
grounds:

       [Cynthia] has offered evidence to support each of three grounds for invalidation.

               [Raymond] delayed to the eve of the wedding to present a final form of the
       [ant]enuptial agreement, which did not address the notes and questions made by
       [Cynthia] the only time that she saw a draft of the agreement. The [ant]enuptial
       agreement did not disclose the extent of [Raymond]’s obligations for child and
       spousal support, and the schedules of pre-marital assets were incomplete. The
       agreement gave [Raymond] forgiveness of the debt he acknowledged to [Cynthia]
       as half of the down payment she made from her premarital funds. These facts all
       go to duress, nondisclosure, and unconscionability.

              The strongest argument for invalidation, however, is the change in facts
       and circumstances, making enforcement unfair and unreasonable. The test is

2
 A coverture factor is a formula, similar to proration, used to calculate what portion of a pension
or retirement account is deemed marital property and what portion is deemed separate property.
See Vander Veen v Vander Veen, 229 Mich App 108, 112; 580 NW2d 924 (1998) (“[T]he trial
court must employ a fraction of the years the parties were married while the spouse employee
earned his pension over the number of years in which the employee spouse worked to build the
pension benefits.”).

                                                -6-
       whether the change of circumstances was foreseeable. Certainly [Cynthia] did not
       see that the marriage would result in her losing the majority of her pre-marital and
       separate assets while [Raymond] amassed a seven figure retirement portfolio. She
       also did not foresee that he would brutally assault her as they ate dinner one night.

               In addition to the three recognized factors above is the fact that
       [Raymond] himself has breached the contract’s requirement at 3d, which
       provided. . . . [“]In any event he shall retain records to document the post marital
       contributions and earnings/growth on those contributions.[”] [Raymond] did not
       supply any evidence of the actual earnings/growth to determine the post-marital
       earnings on the pre-marital assets. He instead requested a division based on the
       coverture fraction, apparently abandoning any rights he had under section 3d of
       the [ant]enuptial agreement.

               The court finds that paragraphs 3c and 3d are invalid.

For the same reasons, the trial court also held that ¶ 7c of the antenuptial agreement—“Neither of
us shall seek alimony or spousal support from the other and all claims for future alimony/spousal
support are waived”—was invalid. Finally, without offering any explanation or supporting
factual findings, the trial court denied each party’s request for attorney fees.

       These appeals ensued.

                                II. STANDARDS OF REVIEW

               A trial court’s findings of fact made following a bench trial in a divorce
       action are reviewed for clear error. A finding is clearly erroneous if, after a
       review of the entire record, the reviewing court is left with a definite and firm
       conviction that a mistake has been made. This issue also necessarily involves the
       interpretation of the antenuptial agreement, which is a question of law that this
       Court reviews de novo. [Allard v Allard, 308 Mich App 536; 867 NW2d 866
       (2014), aff’d in part, rev’d in part on other grounds, vacated in part 499 Mich 932
       (2016) (quotation marks and citations omitted).]

On the other hand, we review de novo a trial court’s decision regarding a motion for summary
disposition, Bowden v Gannaway, 310 Mich App 499, 503; 871 NW2d 893 (2015), and review a
trial court’s refusal to enforce an antenuptial agreement for an abuse of discretion, Woodington v
Shokoohi, 288 Mich App 352, 372; 792 NW2d 63 (2010). Likewise, we review the “trial court’s
decision whether to award attorney fees for an abuse of discretion,” reviewing its related
“findings of fact for clear error, and any questions of law de novo.” Diez v Davey, 307 Mich
App 366, 395; 861 NW2d 323 (2014) (citation omitted).




                                               -7-
                                        III. ANALYSIS

                                A. SUMMARY DISPOSITION

       Raymond argues that the trial court erred by denying his motion for summary disposition
regarding the validity and enforceability of the antenuptial agreement. We disagree.

        Raymond fails to recognize that the trial court’s ruling was premised less on the
substance of his motion than on its prematurity. “Generally, a motion for summary disposition is
premature if granted before discovery on a disputed issue is complete.” Peterson Novelties, Inc v
City of Berkley, 259 Mich App 1, 24-25; 672 NW2d 351 (2003). “However, summary
disposition may nevertheless be appropriate if further discovery does not stand a reasonable
chance of uncovering factual support for the opposing party’s position.” Id. at 25.

        Here, further discovery stood a reasonable chance of uncovering factual support for
Cynthia’s position. Notably, Raymond’s motion was filed in the early stages of discovery, a
mere 31 days after Cynthia’s divorce complaint was filed. In response, Cynthia’s counsel argued
that additional discovery was necessary regarding several disputed issues. By agreeing and
holding that Raymond’s motion for summary disposition would be denied, without prejudice, to
afford the parties a chance to conduct further discovery, the trial court did not commit error. On
the contrary, the trial court pragmatically recognized that, given the dearth of discovery at that
time, there was a reasonable chance that further discovery might yield factual support for
Cynthia’s position.

              B. ENFORCEABILITY OF THE ANTENUPTIAL AGREEMENT

       Although “antenuptial agreements governing the division of property in the event of
divorce are enforceable in Michigan,” Rinvelt v Rinvelt, 190 Mich App 372, 382; 475 NW2d 478
(1991), “such agreements may be voided if certain standards of ‘fairness’ are not satisfied,” Reed
v Reed, 265 Mich App 131, 142; 693 NW2d 825 (2005) (quotation marks and citations omitted).

       A prenuptial agreement may be voided (1) when obtained through fraud, duress,
       mistake, or misrepresentation or nondisclosure of material fact, (2) if it was
       unconscionable when executed, or (3) when the facts and circumstances are so
       changed since the agreement was executed that its enforcement would be unfair
       and unreasonable. A party challenging a prenuptial agreement bears the burden
       of proof and persuasion. [Id. at 142-143 (quotation marks and citations omitted).]

                                 1. COMMINGLED ASSETS

       The trial court held that changed circumstances justified its refusal to enforce ¶ 3c and ¶
3d of the antenuptial agreement, in which the parties agreed that postmarital unearned income
from separate property—including unearned income from premarital retirement accounts—
would remain separate property throughout the marriage and continue as separate property in the
event of a divorce. Raymond argues that, by so ruling, the trial court committed error requiring
reversal. In other words, he argues that the trial court should have divided the University of
Michigan retirement accounts via a coverture factor rather than deeming them marital property
and splitting them between the parties equally. We disagree.

                                               -8-
        At a fundamental, logical level, Raymond’s argument regarding his University of
Michigan retirement accounts is fatally flawed. Raymond contends that, by asking the trial court
to divide those accounts using the applicable coverture factor, he was seeking strict enforcement
of the terms of the antenuptial agreement. But that is untrue. On the contrary, the term
“coverture” is conspicuously absent from the antenuptial agreement, as are any words to the
same effect. Instead of calling for a coverture division of commingled retirement assets—i.e., a
prorated approximation3 of the proportion of the retirement accounts that were separate versus
marital—the antenuptial agreement calls for an exact division of such marital and premarital
assets.

        It is undisputed that Raymond failed to exercise his option “to segregate his post marital
retirement savings.” Instead, after the parties married, Raymond contributed marital income to
his University of Michigan retirement accounts, thereby commingling marital and separate assets
within the same accounts. And yet, instead of providing the trial court with an exact accounting
of the pre- and postmarital contributions (including documentation of the respective growth of
such contributions), Raymond asked the trial court to divide such accounts via a coverture factor.
Thus, contrary to his arguments in the trial court and on appeal, Raymond’s coverture argument
did not actually seek “enforcement” of the antenuptial agreement. Rather, he sought to have the
trial court divide the University of Michigan accounts in a way that was not contemplated by the
parties in their antenuptial agreement.

       Consequently, Raymond’s instant claim of error necessarily fails. The trial court neither
could nor did commit error requiring reversal by failing to enforce provisions of the antenuptial
agreement that both parties, in essence, asked that it disregard. See Giannetti v Cornillie (On
Remand), 209 Mich App 96, 102; 530 NW2d 121 (1995) (“[A] party cannot ask a trial court to
take a certain action, and then argue on appeal that the action constitutes error.”). Moreover,
since neither party presented the trial court with a proposed distribution according to the actual
terms of the antenuptial agreement, Raymond cannot now successfully argue that the trial court
erred by failing to make such a distribution. See Smith v Musgrove, 372 Mich 329, 337; 125
NW2d 869 (1964) (“Error to be reversible must be error of the trial judge; not error to which the
aggrieved appellant has contributed by planned or neglectful omission of action on his part.”).



3
  Because both an employee’s salary and his or her contributions to a retirement account may
vary over time, proration via a coverture factor does not yield a precise division, only an
estimate. See Vander Veen, 229 Mich App at 113-115; see also Stoller, Estimating the Present
Value of Pensions: Why Different Estimators Get Varying Results, 2 J Legal Econ 49, 59 (1992)
(“Under coverture rules, the standard calculation of the marital property proportion (i.e.,
coverture fraction) of the future pension benefits in defined benefit plans is very simple. It is the
proportion of the time during which pension credit was being earned (prior to the evaluation
date) that the couple was married. This proportion is multiplied by the estimated present value
of the pension benefits, as of the evaluation date, to obtain the marital proportion of the present
value. . . . [E]stimators may employ the longevity approach explained above, or, alternatively,
may consider the proportion of pension fund contributions made during the marriage as the
coverture fraction. The choice of methods can sometimes make a substantial difference in such
cases since contributions tend to get considerably larger as the employee gains seniority.”).

                                                 -9-
         “A divorce case is equitable in nature, and a court of equity molds its relief according to
the character of the case; once a court of equity acquires jurisdiction, it will do what is necessary
to accord complete equity and to conclude the controversy.” Draggoo v Draggoo, 223 Mich
App 415, 428; 566 NW2d 642 (1997) (quotation marks and citations omitted). Here, after
recognizing that neither party actually sought enforcement of the antenuptial agreement and that
the court lacked the sort of forensic accounting that would have been necessary to unscramble
the commingled marital and separate assets pursuant to the terms of the antenuptial agreement,
the trial court instead made the commonsense decision to deem those assets marital property and
divide them equally. By doing so, the trial court did what was necessary to effectuate an
equitable property division and conclude the controversy; it did not commit error warranting
reversal.

                             2. SPOUSAL SUPPORT PROVISIONS

        Likewise, the trial court did not abuse its discretion by refusing to enforce ¶ 7c of the
antenuptial agreement—“Neither of us shall seek alimony or spousal support from the other and
all claims for future alimony/spousal support are waived”—due to a change of circumstances
making enforcement unfair.4 The trial court reasoned,

               The strongest argument for invalidation . . . is the change in facts and
       circumstances, making enforcement unfair and unreasonable. The test is whether
       the change of circumstances was foreseeable. Certainly [Cynthia] did not see that
       the marriage would result in her losing the majority of her pre-marital and
       separate assets while [Raymond] amassed a seven figure retirement portfolio. She
       also did not foresee that he would brutally assault her as they ate dinner one night.

         Initially, we note that the trial court’s analysis improperly focused on whether Cynthia
actually, subjectively foresaw that the parties’ separate estates might vary over the duration of
the marriage. “[T]he first step in analyzing whether changed circumstances might justify
refusing to enforce a prenuptial agreement is” to decide whether the changed circumstances were
reasonably foreseeable when the agreement was made. Reed, 265 Mich App at 144. As such,
the germane inquiry is whether, at the time the parties entered the antenuptial agreement, it was
reasonably foreseeable that over time they might accumulate substantially different separate
estates.

       The financial schedules attached to the parties’ antenuptial agreement indicate that
Raymond entered the marriage with a separate estate of roughly $363,042, whereas Cynthia had
a separate estate totaling roughly $187,992. Of Cynthia’s $187,992 separate estate, $34,000 was
the balance due on a note given to Cynthia by Raymond relative to their joint purchase of a
home. But pursuant to the terms of the antenuptial agreement, that $34,000 debt was forgiven
when the parties married. Thus, at the outset of marriage, Cynthia’s separate estate would be
$153,992, or a full $209,050 less than Raymond’s separate estate. Various long-term
investments comprised the vast majority of the parties’ separate estates at that time.


4
  Given this conclusion, we need not address the alternative grounds for invalidity cited by the
trial court.

                                                -10-
         Given the dichotomy between the amount of the parties’ separate estates at the outset of
the marriage and the fact that, under the terms of the antenuptial agreement, “any unearned
income received during the marriage from separate property, including income from investments
. . . or from passive or active property ownership” would remain separate property, it was
reasonably foreseeable that the amount of the parties’ separate estates might vary considerably
over time. It is, of course, common knowledge—not to mention common sense—that different
investments yield different rates of return over time. Moreover, it is axiomatic that, given the
same rate of loss or return, a larger investment will yield a greater loss or return than will a
smaller investment. Over time, it was almost inevitable that the parties’ separate estates would
increase or decrease at different rates and in different amounts, and it was therefore foreseeable
that, following a decade and a half of marriage, those separate estates might have vastly different
dollar values.

        Nevertheless, we conclude that the trial court did not abuse its discretion by refusing to
enforce ¶ 7c because the domestic abuse in this matter represented a change of circumstances
that made enforcement unfair. At the outset, we note that, given Cynthia’s testimony that such
abuse occurred, and Raymond’s conflicting testimony that it did not, the trial court’s factual
finding that the abuse occurred is a credibility determination that is owed deference. See Butler
v Simmons-Butler, 308 Mich App 195, 200; 863 NW2d 677 (2014). And Raymond’s related
argument that the trial court clearly erred by finding that Raymond abused Cynthia—despite the
fact that Raymond had previously been acquitted of domestic violence charges—is baseless. In a
civil matter, evidence of acquittal “has little or no probative value” because of the differing
burdens of proof in civil and criminal proceedings. Cook v Auto Club Ins Ass’n, 217 Mich App
414, 418; 552 NW2d 661 (1996) (quotation marks and citation omitted).

        As explained in Allard, while unforeseeable domestic abuse that develops after marriage
is not, by itself, “a sufficient change of circumstances to void an otherwise valid antenuptial
agreement,” such abuse can constitute a sufficient change for invalidation when the abuse
“relate[s] to the issues addressed in the antenuptial agreement.” Allard, 308 Mich App at 549-
550. When the issue in question is spousal support, abuse can constitute a sufficient change of
circumstances to make enforcement unfair if the abuse is both (1) unforeseeable and (2) directly
affects the abused party’s financial situation. Id. at 550.

       Here, the trial court did not clearly err5 by finding that the abuse was unforeseeable at the
time the antenuptial agreement was executed. According to Cynthia’s testimony, the abuse
developed over several years during the marriage, beginning with verbal abuse and ultimately
ending with outright physical violence. But there is no evidence of abuse before the parties


5
  In several places—interspersed haphazardly throughout the argument sections of his appellate
briefs—Raymond argues that the trial court stated several other factual findings that are clearly
erroneous. We do not reach that issue, however, because, by failing to include it in his statement
of questions presented, Raymond has waived it. See River Inv Group v Casab, 289 Mich App
353, 360; 797 NW2d 1 (2010) (“This issue is waived because plaintiff failed to state it in the
statement of questions presented in its brief on appeal.”). Waiver “extinguish[es] any alleged
error and foreclose[es] appellate review.” In re Tiemann, 297 Mich App 250, 265; 823 NW2d
440 (2012).

                                               -11-
married. Thus, the trial court did not clearly err by finding that the abuse was unforeseeable at
the time the parties entered the antenuptial agreement.

        Moreover, if believed, Cynthia’s trial testimony demonstrates that Raymond’s abuse
directly impacted her financial situation. The abuse compelled Cynthia—by implicit threat of
force—both to use her separate assets to pay marital debt and to assent to Raymond’s use of
marital assets for purposes Cynthia believed were improper. Further, by holding that the
domestic abuse represented a change of circumstances that made enforcement unfair, the trial
court implicitly found that Cynthia’s testimony was credible.6 Again, the trial court’s implicit
credibility determination is owed deference. See Butler, 308 Mich App at 200.

       Thus, the trial court did not abuse its discretion by refusing to enforce ¶ 7c of the
antenuptial agreement. Given the trial court’s relevant factual findings, which were not clearly
erroneous, the domestic abuse represented a change of circumstances that made enforcement of ¶
7c unfair.7

                                      C. ATTORNEY FEES

        Finally, by way of her cross-appeal, Cynthia argues that the trial court abused its
discretion by “summarily” denying her request for attorney fees. “In civil actions tried without a
jury, MCR 2.517(A)(1) requires the court to ‘find the facts specially, state separately its
conclusions of law, and direct entry of the appropriate judgment.’ ” Douglas v Allstate Ins Co,
492 Mich 241, 256; 821 NW2d 472 (2012). “The court must articulate the reasons for its
decision in order to facilitate appellate review.” City of Detroit v Detroit Plaza Ltd Partnership,
273 Mich App 260, 294; 730 NW2d 523 (2006) (quotation marks and citation omitted). “Brief,
definite, and pertinent findings and conclusions on the contested matters are sufficient,” MCR
2.517(A)(2), and “[t]he court may state the findings and conclusions on the record or include
them in a written opinion,” MCR 2.517(A)(3).

        Here, the trial court chose to announce its findings in a written opinion, but it provided no
findings regarding the attorney fee issue, instead simply denying the parties’ requests for fees
without explanation. The trial court’s failure to announce adequate findings leaves us unable to
afford this issue meaningful appellate review.



6
  The trial court is presumed to be aware of this Court’s decision in Allard, and to properly apply
the law as announced in that decision. See In re Costs and Attorney Fees, 250 Mich App 89,
101; 645 NW2d 697 (2002).
7
  Although we need not reach the issue to decide this matter, we caution the trial court against
relying on Staple v Staple, 241 Mich App 562; 616 NW2d 219 (2000), as it did in this case, as a
ground for invalidating a waiver of the right to seek “alimony/spousal support” in an antenuptial
agreement. This Court’s holding in Staple regards the waiver—in a divorce settlement
agreement—of a party’s right to petition for modification of an extant judgment for spousal
support. As such, the holding from Staple relied upon by the trial court is inapposite in cases,
such as this, involving an antenuptial (i.e., premarital) agreement that no spousal support
judgment will ever be sought.

                                                -12-
                                      IV. CONCLUSION

        Accordingly, we affirm the trial court’s rulings regarding the prenuptial agreement and
remand this matter to the trial court for explanation regarding the attorney fee issue. Within 70
days of the date of this opinion, the trial court shall issue a written opinion containing brief,
definite, and pertinent findings and conclusions regarding the attorney fee issue. On remand, the
trial court may hold any proceedings it finds necessary to adequately address that issue, but it
need not hold any proceedings if it finds that the existing record is sufficient.8

        Affirmed in part and remanded to the trial court for further proceedings consistent with
this opinion. We retain jurisdiction.

                                                             /s/ David H. Sawyer
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Kurtis T. Wilder




8
 Because doing so may aid the trial court in timely complying with our remand instructions, we
direct its attention to the following portion of Myland v Myland, 290 Mich App 691, 702; 804
NW2d 124 (2010):

              The applicable court rule, MCR 3.206(C)(2)(a), states:

                      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. . . .

       This Court has interpreted this rule to require an award of attorney fees in a divorce
       action only as necessary to enable a party to prosecute or defend a suit. With 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. Further, 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. [Quotation
       marks and citations omitted; emphasis added.]

                                               -13-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                               David H. Sawyer
Cynthia Hobbs v Raymond Hobbs                                                   Presiding Judge

Docket No.     325835                                                          Joel P. Hoekstra

LC No.         13-000103 DO                                                    Kurtis T. Wilder
                                                                                Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

              Proceedings on remand in this matter shall commence and be concluded no later than 70
days of the Clerk’s certification of this order, and they shall be given priority on remand until they are
concluded. The proceedings on remand are limited to the attorney fee issue addressed in the
accompanying opinion.

              The parties shall promptly file with this Court a copy of all papers filed on remand.
Within seven days after entry, appellant shall file with this Court, copies of all orders entered on remand.

               The transcript of all proceedings on remand shall be prepared and filed within 21 days
after completion of the proceedings.



                                                             /s/ David H. Sawyer




                                 February 14, 2017
