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
JANELL MARIE CALLAHAN, UNPUBLISHED
August 11, 2022
Plaintiff-Appellee,
v No. 357443
Grand Traverse Circuit Court
BRUCE ARNOLD CALLAHAN, Family Division
LC No. 2019-014889-DM
Defendant-Appellant.
Before: RICK, P.J., and BOONSTRA and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s judgment of divorce dissolving the parties’
marriage and dividing the marital assets. Defendant challenges the trial court’s division of
property, award of spousal support to plaintiff, and award of attorney fees to plaintiff. We affirm
in part, vacate in part, and remand for further proceedings.
I. BACKGROUND
The parties were married in 1988. By the time of these proceedings, defendant was 64
years old and plaintiff was 57 years old. Throughout their marriage, defendant worked as a marine
engineer and, by the time of these proceedings, was making more than $100,000 per year. Plaintiff,
who was unable to work more than 24 hours per week because of health issues, worked part-time
as a health aide making less than $20,000 per year. Defendant had always been the primary earner
while plaintiff was the primary caregiver for the parties’ two children. At the time of these
proceedings, one of the parties’ children was still a minor, but was living in a guardianship with
the parties’ adult child because plaintiff was no longer able to care for the minor child due to health
issues. Both parties paid child support for the minor.
Plaintiff filed a complaint for divorce in March 2019. Shortly after, the trial court awarded
plaintiff temporary spousal support of $1,000 per month, which was later increased to $2,000 per
month. The trial court also ordered that defendant pay plaintiff’s attorney fees, pay for plaintiff’s
car repairs, and pay plaintiff $400 for her snow tires, which defendant had thrown away in violation
of a mutual ex parte restraining order issued by the court. Defendant, however, refused to pay,
and numerous show-cause orders were issued against defendant for his failure to follow the court’s
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orders. On three occasions, the trial court found defendant in contempt for his failure to follow
the court’s orders, two of which were before the judgment of divorce was issued.
The trial court conducted a bench trial and issued an opinion and order on February 24,
1
2021. Relevant to this appeal, the order awarded defendant all of the parties’ real property, except
for one property which was to be sold to pay off the parties’ medical debt. The order calculated
the total equity in the parties’ real property as $662,196, and awarded that amount (minus payments
already made by defendant) to plaintiff from the parties’ retirement accounts. The order then
provided, “After the Plaintiff is awarded her equitable share of the value of the real estate, . . . all
remaining retirement assets shall be divided equally between the parties,” except that defendant’s
share would be increased by $4,250 because there was $8,500 missing from plaintiff’s retirement
account. The order also awarded plaintiff $2,500 per month in spousal support for two years, after
which spousal support would be decreased to $2,000 per month until plaintiff turned 62 years old.
Finally, the order stated that plaintiff could request attorney fees pursuant to MCR 3.206(D)
because plaintiff incurred excessive attorney fees as a result of defendant’s behavior.
On May 17, 2021, the trial court entered a judgment of divorce, which stated that it
incorporated the terms of the trial court’s February 24, 2021 order. In this judgment, however, the
court ordered defendant to pay plaintiff $1,156,839 from his retirement accounts, which included
plaintiff’s share of the equity in the parties’ real property minus certain payments defendant had
already made (which the court calculated to be $649,940), plus $508,833 as her share of the parties’
retirement accounts. This appeal followed.
II. ANALYSIS
A. DIVISION OF PROPERTY
Defendant first challenges the trial court’s division of property, arguing in relevant part
that the trial court’s total award in the judgment of divorce was not consistent with the terms of its
February 24, 2021 order. We agree.
MCR 2.602(B) provides:
An order or judgment shall be entered by one of the following methods:
(1) The court may sign the judgment or order at the time it grants the relief
provided by the judgment or order.
(2) The court shall sign the judgment or order when its form is approved by
all the parties and if, in the court’s determination, it comports with the court’s
decision.
1
After this order was issued, plaintiff filed a motion asking the trial court to clarify the order,
which the court did in an order dated April 21, 2021. For simplicity, this opinion’s references to
the February 24, 2021 order is to that order as amended by the April 21, 2021 order.
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(3) Within 7 days after the granting of the judgment or order, or later if the
court allows, a party may serve a copy of the proposed judgment or order on the
other parties, with a notice to them that it will be submitted to the court for signing
if no written objections to its accuracy or completeness are filed with the court clerk
within 7 days after service of the notice. The party must file with the court clerk
the notice and proof of service along with the proposed judgment or order.
(a) If no written objections are filed within 7 days of the date of service of
the notice, the judge shall sign the judgment or order if, in the court’s determination,
it comports with the court’s decision. If the proposed judgment or order does not
comport with the decision, the court shall direct the clerk to notify the parties to
appear before the court on a specified date for settlement of the matter.
(b) Objections regarding the accuracy or completeness of the judgment or
order must state with specificity the inaccuracy or omission.
(c) The party filing the objections must serve them on all parties as required
by MCR 2.107, together with a notice of hearing and an alternative proposed
judgment or order.
(d) The court must schedule the hearing upon filing of the first objection,
and the party filing the objection must serve the notice of hearing under subrule
(B)(3)(c). Other parties to the action may file objections with the court through the
end of the 7-day period. The court must schedule a hearing for all objections within
14 days after the first objection is filed or as soon as is practical afterward.
(4) A party may prepare a proposed judgment or order and notice it for
settlement before the court. Pursuant to MCR 2.119(G)(3)(b), a motion fee may
not be charged.
On April 30, 2021, plaintiff motioned for entry of judgment of divorce, and attached a
proposed judgment that she represented comported with the trial court’s February 24, 2021 order.
Defendant filed objections to the proposed judgment on May 7, 2021. Those objections, however,
did not comport with the requirements in MCR 2.602(B)(3)(b) and (c), and, on May 12, 2021, the
trial court dismissed the objections without a hearing that would have otherwise been required
under MCR 2.602(B)(3)(d). The trial court then held a hearing on May 14, 2021, in which it stated
that there were no objections to plaintiff’s proposed judgment and concluded that the proposed
judgment comported with the court’s February 24, 2021 order. On May 17, 2021, the trial court
entered the judgment as proposed by plaintiff. Accordingly, it appears that the trial court entered
the judgment in accordance with MCR 2.602(B)(3)(a).
Under that subrule, the court may only sign the judgment if it comports with the court’s
decision. MCR 2.602(B)(3)(a). We agree with defendant that, here, the trial court’s May 17, 2021
judgment plainly did not comport with the trial court’s February 24, 2021 decision, contrary to the
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trial court’s May 14, 2021 ruling.2 Specifically, in the February 24, 2021 order, under the section
labeled “retirement accounts,” it states, “After the Plaintiff is awarded her equitable share of the
value of the real estate, minus the attorney fees from Defendant’s 401K, all remaining retirement
assets shall be divided equally between the parties.” (Emphasis added.) In the same order, the
trial court calculated the total amount in the parties’ retirement accounts as $1,026,166, and
calculated plaintiff’s equitable share of the value of the real estate as $649,940. Yet, in its eventual
judgment, the trial court ordered defendant to pay $1,156,839 from his retirement accounts,
explaining that this represents plaintiff’s $649,490 share of the equity in the parties’ real property
plus a $508,833 share of the parties’ retirement accounts.3 This latter calculation was clearly
reached by calculating plaintiff’s share of the parties’ retirement account before she was awarded
her equitable share of the value of the parties’ real property, in clear contradiction of the trial
court’s earlier order. Accordingly, plaintiff’s proposed judgment did not comport with the trial
court’s February 24, 2021 order. The trial court’s conclusion to the contrary was plainly incorrect.
This plain error affected defendant’s substantial rights. In its February 24, 2021 order, the
trial court carefully walked through its consideration of the Sparks4 factors in deciding how to
equitably distribute the marital property. After doing so, the court determined that plaintiff should
receive her share of the equity of the parties’ real property from the parties’ retirement account,
and then split the remaining retirement assets equally, with slight adjustments. Rather than follow
this ruling, however, the judgment of divorce awarded plaintiff more than the entirety of the
retirement accounts, leaving defendant, at age 64 and suffering from multiple health conditions as
noted by the trial court, without any retirement savings in contradiction of what the trial court
previously ordered. Moreover, the May 17 judgment was written in a way that made compliance
with the order impossible. The May 17 judgment states that “Defendant shall transfer the amount
2
While this precise issue was not raised in the trial court, it is unclear whether defendant needed
to do so to preserve the issue for appeal. MCR 2.602(B)(3)(a) requires trial courts to find that a
proposed order “comports with the court’s decision” regardless of whether there is an objection,
which would suggest that the issue is reviewable on appeal despite a lack of objection. See MCR
2.517(A)(7) (“No exception need be taken to a finding or decision.”). Yet there is authority to
suggest that a failure to object to a proposed judgment precludes appellate review. See Eriksen v
Fisher, 166 Mich App 439, 451; 421 NW2d 193 (1988). We need not resolve this issue, however,
because it does not change the result. Even if defendant needed to object to the proposed judgment
in order to now raise the issue on appeal, given the unique circumstances of this case, including
the fact that defendant tried to object to the proposed judgment but the trial court denied
defendant’s objections without the required hearing, we will exercise our discretion to review this
issue, treating it as unpreserved. Unpreserved errors are reviewed for plain error affecting
substantial rights. See Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
3
The $508,833 is not precisely half of the total in the parties’ retirement account because the trial
court subtracted the $4,250 from plaintiff’s half as the amount that defendant’s share would
increase due to the missing $8,500 from plaintiff’s retirement account, as specified in the February
24, 2021 order.
4
Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).
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of $1,156,839 from the Defendant’s retirement accounts” to plaintiff, but $1,156,839 exceeds the
amount in defendant’s retirement accounts as determined by the trial court. It would be impossible
for defendant to transfer $1,156,839 “from [his] retirement accounts.” We therefore conclude that
the trial court’s apparent failure to follow the February 24, 2021 order without an explanation why
its new allocation of the parties’ property was equitable affected defendant’s substantial rights.
Accordingly, we vacate the May 17, 2021 judgment to the extent that it calculated
plaintiff’s share of the equity in the parties’ retirement accounts before subtracting her equitable
share of the value of the real estate, and remand to the trial court to either enter judgment in
accordance with its February 24, 2021 order or explain its apparent deviation from that order. See,
e.g., Hagen v Hagen, 202 Mich App 254, 258-259; 508 NW2d 196 (1993) (holding that it is within
the equitable power of the trial court to modify a judgment of divorce, even if final).5
B. SPOUSAL SUPPORT
Defendant next argues that the trial court abused its discretion by awarding plaintiff spousal
support because it was not calculated considering the parties’ assets and actual needs, and because
of the inequitable property division. We disagree.
A trial court’s decision to award spousal support or to impute income is reviewed for abuse
of discretion. Loutts v Loutts, 298 Mich App 21, 25-26; 826 NW2d 152 (2012). “An abuse of
discretion occurs when the trial court’s decision falls outside the range of reasonable and principled
outcomes.” Id. at 26 (quotation marks and citation omitted). A trial court’s factual findings are
reviewed for clear error. Id. “A finding is clearly erroneous if, after reviewing the entire record,
we are left with the definite and firm conviction that a mistake was made.” Id. If a clear error has
not occurred, this Court “must determine whether the dispositional ruling was fair and equitable
under the circumstances of the case” and “must affirm the trial court’s dispositional ruling unless
we are convinced that it was inequitable.” Id.
“The object in awarding spousal support is to balance the incomes and needs of the parties
so that neither will be impoverished; spousal support is to be based on what is just and reasonable
under the circumstances of the case.” Berger v Berger, 277 Mich App 700, 726; 747 NW2d 336
(2008). “Spousal support does not follow a strict formula.” Loutts, 298 Mich App at 30. Trial
courts should consider the following factors in awarding spousal support:
(1) the past relations and conduct of the parties, (2) the length of the
marriage, (3) the abilities of the parties to work, (4) the source and amount
of property awarded to the parties, (5) the parties’ ages, (6) the abilities of
the parties to pay alimony, (7) the present situation of the parties, (8) the
5
Defendant also contends that the trial court’s division of real property was not equitable, but we
do not reach this argument in light of our decision to remand on this issue. In so doing, we allow
defendant the opportunity to raise the issue at a later date if the trial court explains whether (and
why) its division of property in the May 17, 2021 order was correct, despite its apparent failure to
follow the court’s February 24, 2021 order.
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needs of the parties, (9) the parties’ health, (10) the prior standard of living
of the parties and whether either is responsible for the support of others,
(11) contributions of the parties to the joint estate, (12) a party’s fault in
causing the divorce, (13) the effect of cohabitation on a party’s financial
status, and (14) general principles of equity. [Berger, 277 Mich App at 726-
727 (quotation marks and citation omitted).]
“The trial court should make specific factual findings regarding the factors that are relevant to the
particular case.” Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010) (quotation
marks and citation omitted).
The trial court did not abuse its discretion by awarding spousal support because its decision
was reasonable and sufficient to support appellate review. See Loutts, 298 Mich App at 25-26.
Contrary to defendant’s argument, the trial court’s decision to award spousal support took into
consideration the parties’ assets and needs. The trial court concluded that because of plaintiff’s
age, her illnesses, the income disparity between the parties, and the fact that defendant supported
plaintiff throughout their entire marriage, plaintiff needed money to pay for her living expenses to
prevent her from becoming impoverished. The court further reasoned that the assets plaintiff
received from defendant’s retirement account would be in an individual retirement account that
she could not withdraw from without penalty for several years. Although defendant asserts that
the trial court’s award of spousal support to plaintiff impoverished him, the trial court did not
clearly err by determining that defendant would be able to financially support himself because he
was making more than $100,000 per year and, even if he retired, he had access to income-
producing assets, including rental income.
Defendant nevertheless argues that the trial court abused its discretion by awarding spousal
support because the property distribution was inequitable. We decline to address this issue,
however, because defendant’s argument is based in part on the trial court’s award of the retirement
accounts, and we have remanded for the trial court to reconsider that issue. Any consideration of
this argument at this point would be premature.
C. ATTORNEY FEES
Defendant argues that the trial court could not award plaintiff attorney fees pursuant to
MCR 3.206(D). At the divorce trial, plaintiff argued that she was entitled to attorney fees, and
defendant did not oppose the motion. Consequently, in its February 24, 2021 order, the trial court
awarded plaintiff her requested attorney fees. Following that order, defendant did not object to
the award of attorney fees or otherwise ask the trial court to clarify the basis for the award.
Accordingly, the award of attorney fees was eventually incorporated into the trial court’s May 17,
2021 judgment of divorce. Michigan generally follows the raise or waive rule of appellate review,
meaning a litigant’s “failure to timely raise an issue waives review of that issue on appeal.”
Walters v Nadell, 481 Mich 377, 387, 751 NW2d 431 (2008) (quotation marks and citation
omitted). Although “this Court can overlook the preservation issue when failure to consider the
issue would result in manifest injustice, if consideration is necessary for a proper determination of
the case, or if the issue involves a question of law and the facts necessary for its resolution have
been presented,” Mitchell v Mitchell, 296 Mich App 513, 521; 823 NW2d 153 (2012) (quotation
marks and citation omitted), none of these exceptions are present here. See, e.g., Napier v Jacobs,
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429 Mich 222, 234; 414 NW2d 862 (1987) (“More than the fact of the loss of the money judgment
of $60,000 in this civil case is needed to show a miscarriage of justice or manifest injustice.”).
Even if this issue was not waived, defendant concedes that it is unpreserved, and we would
conclude that defendant has failed to establish any error affecting his substantial rights. See Kern
v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000) (explaining that the standard of
review for unpreserved errors is plain error affecting substantial rights).
The May 17, 2021 judgment of divorce provides that “Plaintiff may file a Bill of Costs and
request Defendant pay some or all of her attorney fees and costs incurred in this case” under MCR
3.206(D). That rule in turn provides in relevant:
(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, including the
expense of engaging in discovery appropriate for the matter, 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,
or engaged in discovery practices in violation of these rules. [MCR 3.206(D).]
Defendant argues that he was only found to have violated one of the trial court’s previous
orders, and violating that one order would not support requiring him to, in his words, pay “attorney
fees for the entirety of the divorce proceedings to” plaintiff. Even accepting as true that defendant
only violated one order,6 defendant clearly could have been responsible for the attorney fees and
expenses incurred by plaintiff because of defendant’s refusal to comply with that order. See MCR
3.206(D)(2)(b). The judgment of divorce states that plaintiff “may” file a bill of costs and “request
Defendant pay some or all of her attorney fees incurred in this case.” (Emphasis added.) It is
unclear how much, if any, attorney fees defendant has been required to pay. Accordingly, given
the language in the divorce judgment awarding “some” of plaintiff’s attorney fees and the fact that
defendant, through his own admissions, could be responsible for at least “some” of plaintiff’s
attorney fees, we cannot conclude that the provision in the judgment of divorce awarding plaintiff
attorney fees was a plain error that affected defendant’s substantial rights.
6
Defendant actually violated more than one of the trial court’s orders, and was held in contempt
of court for doing so two times before the divorce trial.
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Affirmed in part, vacated in part, and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michelle M. Rick
/s/ Mark T. Boonstra
/s/ Colleen A. O’Brien
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