                          STATE OF MICHIGAN

                           COURT OF APPEALS



JOHN BRITTON GORDON,                                                UNPUBLISHED
                                                                    May 7, 2015
               Plaintiff/Counter-Defendant-
               Appellee,

v                                                                   No. 319062
                                                                    Wayne Circuit Court
CLAIRE SCHROM GORDON,                                               LC No. 09-114308-DM

               Defendant/Counter-Plaintiff-
               Appellant.


Before: M. J. KELLY, P.J., and WILDER and K. F. KELLY, JJ.

PER CURIAM.

        In this domestic relations dispute, defendant, Claire Schrom Gordon, appeals by right the
trial court’s order denying her request for attorney fees and ordering her to pay $1,425 in
attorney fees to plaintiff, John Britton Gordon. For the reasons more fully explained below, we
affirm in part, reverse in part, and remand for further proceedings.

                                        I. BASIC FACTS

        The trial court entered a judgment of divorce in January 2011. In the judgment, the trial
court awarded the parties joint legal and physical custody of their four children, and ordered John
Gordon to pay child support and spousal support, which included healthcare benefits. The trial
court amended the judgment in April 2011 to require John Gordon to disclose his income from
all sources to Claire Gordon and provide her with annual copies of his income tax returns.

        In January 2012, the trial court entered an order exempting the case from oversight by the
friend of the court; the order specified that the friend of the court would “not be involved in the
enforcement, investigation, or accounting functions for custody, parenting time, or support in this
case.” But referees from the friend of the court conducted hearings in June and November 2012
regarding several postjudgment matters raised by the parties. Other postjudgment matters were
decided by the court without referral.




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        On March 8, 2013, the trial court granted John Gordon’s motion for attorney fees in the
amount of $8,699, as sanctions against Claire Gordon for filing frivolous motions. In December
2013, this Court denied Claire Gordon’s delayed application for leave to appeal that order “for
lack of merit in the grounds asserted.”1 She also applied for leave to appeal the trial court’s May
2013 order in which the court addressed Claire Gordon’s objections to two proposed uniform
child support orders submitted by John Gordon under MCR 2.603(B)(3), and resolved her
motion for increased child support. However, this Court denied that application as well.2

       Claire Gordon now appeals the trial court’s order of October 3, 2013, as amended on
October 23, 2013. In that order, the trial court ordered her to pay an additional $1,425 in
attorney fees to John Gordon and denied her request for attorney fees.

                                       II. JURISDICTION

        A party may appeal by right a postjudgment order awarding or denying attorney fees and
costs. See MCR 7.202(6)(a)(iv); MCR 7.203(A)(1). The appeal must be filed within 21 days
after entry of the judgment or order, MCR 7.204(A)(1)(a), or within an additional period as
allowed by MCR 7.204(A)(1)(b). Because Claire Gordon filed this appeal within 21 days after
entry of the October 23, 2013 amended order, and that order was entered within 21 days of the
original order, we reject John Gordon’s argument that this appeal is untimely. Nonetheless,
because the only portion of the amended order that is appealable by right is the portion
addressing the award of attorney fees and denying Claire Gordon’s request for attorney fees,
MCR 7.202(6)(a)(iv), and because an appeal from such an order is limited to the portion of the
order for which there is an appeal as of right, MCR 7.203(A)(1), we will limit our review to the
trial court’s decisions to grant or deny attorney fees.

                                        III. SANCTIONS

                                A. STANDARDS OF REVIEW

        Attorney fees and costs are recoverable in an action only where specifically authorized by
statute, court rule, or a recognized exception. Keinz v Keinz, 290 Mich App 137, 141; 799
NW2d 576 (2010). When a court has discretion to award attorney fees, we review the trial
court’s exercise of discretion to determine whether its decision falls outside the range of
principled outcomes. Id. We review a trial court’s factual findings, such as whether a party’s
position was frivolous, for clear error. Id. To the extent that review involves the interpretation
of a court rule or statute, our review is de novo. Holton v Ward, 303 Mich App 718, 734 n 20;
847 NW2d 1 (2014). To the extent that Claire Gordon argues that she was denied due process,




1
  Gordon v Gordon, unpublished order of the Court of Appeals, entered December 20, 2013
(Docket No. 318496).
2
  Gordon v Gordon, unpublished order of the Court of Appeals, entered December 20, 2013
(Docket No. 316398).


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we review this constitutional issue de novo. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich
265, 277; 831 NW2d 204 (2013).

                                          B. ANALYSIS

        We first address the trial court’s decision to order Claire Gordon to pay attorney fees of
$1,425 to John Gordon as a sanction for filing frivolous objections to the referee’s
recommendations of July 2013. MCR 3.215 and MCL 552.507 govern the authority of a referee
from the friend of the court to hear a matter in a domestic relations action. A party may obtain a
judicial hearing “on any matter that has been the subject of a referee hearing and that resulted in
a statement of findings and a recommended order by filing a written objection . . . .” MCR
3.215(E)(4). Similarly, MCL 552.507(4) provides that “[t]he court shall hold a de novo hearing
on any matter that has been subject of a referee hearing, upon the written request of either party
or upon motion of the court.”

        It is clear from the referee’s recommendation that it declined to address Claire Gordon’s
objections to an earlier referee’s recommendation that had been mailed to the parties in May
2013, because the matter had already been decided by the trial court when it determined the
income figures to be used to determine child support and ultimately entered uniform child
support orders on the basis of those findings. The referee determined that it was unclear why the
other referee purported to act under a January 2013 court order to recalculate child support, given
that the order did not direct the friend of the court to do so and the case was exempt from friend
of the court oversight. The referee also recognized that neither the friend of the court nor a
referee has authority to set aside a prior court order; as such, the referee noted that Claire Gordon
would have to seek relief from the court in an appropriate motion under MCR 2.612(C). For
those reasons, the referee rejected Claire Gordon’s objections and denied her request to
recalculate child support as decided by the trial court in May 2013.

        In her objections to the referee’s July 2013 recommendation, Claire Gordon claimed that
the referee inaccurately summarized the case history. She argued that the trial court’s child
support order of May 2013 should have been based on John Gordon’s 2012 income, and that the
friend of the court has the independent authority to modify child support. Examining the record
as a whole, we conclude the trial court did not clearly err when it found that these objections
were frivolous.

        Claire Gordon’s reliance on MCL 552.517(1)(f) is misplaced because, even if we were to
assume that the January 2012 order exempting the case from oversight by the friend of the court
did not preclude the friend of the court from initiating an investigation, the friend of the court’s
May 2013 recommendation, on its face, relied on the trial court’s January 18, 2013 order as the
basis for its investigation. Thus, there is no support for Claire Gordon’s argument that the friend
of the court was attempting to comply with an order of December 2012. And to the extent that
she argues that the referee had a duty under MCL 552.517(1) to make a recommendation
regarding child support, that argument is unavailing because the referee’s duties are governed by
MCL 552.507 and MCR 3.215, not MCL 552.517(1).




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        We are also not persuaded that the referee’s use of the phrase “res judicata” in its
recommendation of July 2013 establishes that the trial court clearly erred in finding Claire
Gordon’s objections to be frivolous. The doctrine of res judicata is not applicable to a
postjudgment motion seeking to retroactively apply a child support recommendation, but support
orders cannot be retroactively applied to increase or decrease support. See Harvey v Harvey, 237
Mich App 432, 437, 439; 603 NW2d 302 (1999). In general, “[r]etroactive modification of a
support payment due under a support order is permissible with respect to a period in which there
is pending a petition for modification, but only from the date that notice of the petition was given
to the payer or recipient of support.” MCL 552.603(2).3

        Regardless of whether the referee correctly referred to “res judicata,” Claire Gordon has
failed to establish that it was objectionable for the referee to refuse to make a child support
recommendation that would contravene the trial court’s prior orders or to recommend that Claire
Gordon seek relief directly from the trial court. Indeed, we note that Claire Gordon ultimately
relied on the court rule recommended by the referee in her objections. Therefore, the trial court
did not clearly err when it found that Claire Gordon’s attempt to seek relief from the uniform
child support orders through objections to the referee’s recommendation, rather than a motion
under MCR 2.612, was frivolous.

        Claire Gordon also argues that the trial court erred in ordering sanctions under MCL
600.2591 because John Gordon did not prevail on all issues. MCL 600.2591(3)(b) does not
require a party to prevail on all issues, but only “on the entire record.” Regardless, the statute is
not dispositive of the sanctions ordered in this case because the trial court determined that
sanctions were also warranted under MCR 3.206(C)(2)(b) and under the common-law exception
for fees incurred as a result of the other’s unreasonable conduct.4 Further, the trial court’s
decision to award attorney fees based on Claire Gordon’s frivolous objections to the referee’s
recommendations falls squarely within MCR 3.215(F)(3), which authorizes an award of
reasonable costs and attorney fees “[i]f the court determines that an objection is frivolous[.]
“This Court will affirm where the trial court came to the right result even if for the wrong
reason.” Fisher v Blankenship, 286 Mich App 54, 70; 777 NW2d 469 (2009). On this record,
we have no basis for disturbing the trial court’s decision to order sanctions.

       We also reject Claire Gordon’s argument that the trial court erred in failing to conduct an
evidentiary hearing regarding attorney fees. An evidentiary hearing is unnecessary if the trial
court has sufficient evidence to determine the amount of attorney fees and costs. John J Fannon
Co v Fannon Prods, LLC, 269 Mich App 162, 171; 712 NW2d 731 (2005). To warrant an
evidentiary hearing, a factual dispute must exist regarding the reasonableness of the hours billed
or hourly rate claimed by the fee applicant. Smith v Khouri, 481 Mich 519, 532; 751 NW2d 472
(2008). Claire Gordon did not specifically challenge the reasonableness of the hourly rate


3
    MCL 552.603b provides an exception to this rule.
4
  Under the common-law exception, an award of attorney fees is permitted where the party
requesting the fees was forced to incur them as a result of the other party’s unreasonable
conduct. See Reed v Reed, 265 Mich App 131, 164-165; 693 NW2d 825 (2005).


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claimed or any of the three items listed in the detailed billing statement submitted by John
Gordon’s lawyer in support of the motion for attorney fees.

        In addition, contrary to Claire Gordon’s argument on appeal, the trial court made a
specific finding at the October 3, 2013 hearing that the attorney fees requested by John Gordon
were reasonable. However, the most significant of the three items in the billing statement was
$875 for work described as including a motion to compel compliance with an award of attorney
fees. The trial court had previously ordered sanctions of $8,699 on March 8, 2013. But because
the trial court did not award attorney fees related to the motion to compel on October 3, 2013,
but only work expended by John Gordon’s lawyer in responding to Claire Gordon’s objections to
the referee’s recommendation, we cannot conclude that the trial court’s decision to award the
requested attorney fees in the total amount of $1,425 is within the range of principled outcomes.
Keinz, 290 Mich App at 141. Consequently, we remand for reconsideration and determination of
a reasonable attorney fee consistent with the approach discussed in Smith, 481 Mich at 530-532.

       We also reject Claire Gordon’s argument that she was deprived of due process; there is
no evidence that the procedure followed in this case failed to comport with due process. Reed,
265 Mich App at 159-160. To the extent she argues that she was deprived of an impartial
decision-maker, Claire Gordon has failed to overcome the heavy presumption of judicial
impartiality. Cain v Dep’t of Corrections, 451 Mich 470, 496-497; 548 NW2d 210 (1996);
Eldred v Ziny, 246 Mich App 142, 152; 631 NW2d 748 (2001).

        Claire Gordon also challenges the trial court’s decision to deny her request for attorney
fees. Although she has not established any basis for an award of sanctions against John Gordon,
we conclude that further proceedings are warranted with respect to Claire Gordon’s request for
attorney fees under MCR 3.206(C)(2)(a). A trial court may order a party to a domestic relations
action to pay the other party’s attorney fees and expenses under that rule when the requesting
party establishes that he or she is unable to bear the expense and the other party is able to pay.
MCR 3.206(C)(2); Woodington v Shokoohi, 288 Mich App 352, 370; 792 NW2d 63 (2010). The
particular factual circumstances of the case govern whether a party has the ability to pay.
Myland v Myland, 290 Mich App 691, 703; 804 NW2d 124 (2010).

        The record reflects that Claire Gordon made multiple requests for attorney fees during the
postjudgment proceedings, including a request that was denied by the first successor judge at a
hearing on October 5, 2012, because she had access to funds other than child support or spousal
support. Before the October 3, 2013 hearing, Claire Gordon sought attorney fees on several
grounds. She requested attorney fees under MCR 3.216(C)(2)(a) and (b) in her objections to the
referee’s recommendation of July 2013. In August 2013, she again requested attorney fees under
this court rule in a motion for increased child and spousal support. She also argued that attorney
fees were warranted because John Gordon engaged in unreasonable conduct and made frivolous
claims under MCL 600.2591.

       At the October 3, 2013 hearing, the trial court initially denied Claire Gordon’s request for
attorney fees in connection with her objections. Later, after the trial court determined that it
would hold a hearing to address Claire Gordon’s motion to modify spousal support, it denied
another request for attorney fees that were part of her motion, stating, “Your claims are
outrageous. Your requests are meritless.” Although the trial court did not address each basis for

                                                -5-
her request for attorney fees sought, considering Claire Gordon’s failure to substantiate any of
her objections to the referee’s recommendation, the court did not err when it denied her motion
for attorney fees. The trial court’s decision regarding Claire Gordon’s request for attorney fees
in her motion to modify support is problematic because it is unclear whether the court found the
entire request for attorney fees to be outrageous and meritless and, if so, the basis for that
decision. Nonetheless, we reject Claire Gordon’s claim that she established a basis for sanctions
under MCR 3.206(C)(2)(b), or the common-law exception for unreasonable conduct, Reed, 265
Mich App at 164-165, or the standards for a frivolous action or defense under MCL 600.2591.
Therefore, further proceedings regarding these claims are not warranted.

       However, because we are unable to conclude whether the trial court gave special
consideration to the financial situations of the parties and the equities involved in determining
whether an award would be appropriate under MCR 3.206(C)(2)(a) for that portion of Claire
Gordon’s motion to modify support that she substantiated enough to warrant further proceedings,
we remand this case to the trial court for application of the correct standard in determining
whether to award attorney fees and costs under MCR 3.206(C)(2)(a). The trial court may also
consider appellate attorney fees with respect to the substantiated portion of Claire Gordon’s
claim. Myland, 290 Mich App at 703.

       Lastly, we reject Claire Gordon’s argument that she was deprived of due process with
regard to this issue. The trial court’s use of the word “outrageous” does not establish that she
was deprived of an impartial decision-maker, especially considering the ambiguity in the record
regarding which conduct the trial court considered to be outrageous. The remark was within the
bounds of what imperfect men and women sometimes display. Cain, 451 Mich at 497 n 30.

                                      IV. OTHER ISSUES

       Claire Gordon also raises several additional issues that are beyond the scope of this
appeal, which, as previously indicated, is limited to the trial court’s decisions regarding attorney
fees and costs in the October 3, 2013 order, as amended on October 23, 2013. Because this
Court lacks jurisdiction over the remaining issues, we decline to address them.

        Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.



                                                             /s/ Michael J. Kelly
                                                             /s/ Kurtis T. Wilder
                                                             /s/ Kirsten Frank Kelly




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