Cooper v. Cooper

J. H. Gillis, P.J.

(concurring in part, dissenting in part). I cannot agree with the majority’s disposition of the case with respect to the matter of attorney fees.

In the trial court, plaintiff was awarded attorney fees in the amount of $2,520. The award of such fees rests in the sound discretion of the trial court. Schaffer v Schaffer, 37 Mich App 711; 195 NW2d 326 (1972). The trial court, however, is not unfettered in the exercise of that discretion. Attorney fees are not awarded as a matter of right but only if necessary to enable a party to carry on or defend the litigation. Gove v Gove, 71 Mich App 431; 248 NW2d 573 (1976), MCL 552.13; MSA 25.93.

The applicable court rule also requires that the party who moves for attorney fees shall allege facts showing that she or he is unable to bear the expense of the action without this aid. GCR 1963, 726.1, Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

In the present case, the trial court appears to have based its decision upon a comparison of *230plaintiffs unemployed status to the defendant’s employed status and his ownership of an expensive home. This was improper. The question is whether the moving party is unable to pay, not whether the nonmoving party is able to pay.

Furthermore, we note that the trial court failed to consider as a factor those assets which plaintiff gained in the property settlement between the parties. See Mixon v Mixon, 51 Mich App 696, 703; 216 NW2d 625 (1974).

For the foregoing reasons, I would remand the cause to the trial court. On remand, I would request the trial court to weigh the award of attorney fees in light of the above-cited cases, the statute and the court rule.