Elahham v. Al-Jabban

319 Mich.App. 112

899 N.W.2d 768

Lamis H. ELAHHAM, Plaintiff–Appellee/Cross–Appellant,

v.Mohamad B. AL–JABBAN, Defendant–Appellant/Cross–Appellee.

Lamis H. Elahham, Plaintiff–Appellee,

v.Mohamad B. Al–Jabban, Defendant–Appellant.

No. 326775

No. 331438

Court of Appeals of Michigan.

Submitted March 7, 2017, at Detroit.

Decided March 9, 2017, 9:00 a.m.

Scott Bassett, PLLC (by Scott Bassett ), for plaintiff.

Speaker Law Firm, LLC (by Liisa R. Speaker ), Lansing, for defendant.

Before: Hoekstra, P.J., and Jansen and Saad, JJ.

Per Curiam.

In Docket No. 326775, defendant, Mohamad B. Al-Jabban, appeals as of right the first amendments to the contested judgment of divorce. Specifically, defendant challenges the trial court's decisions regarding attorney fees and property division. Plaintiff, Lamis H. Elahham, cross-appeals, challenging the trial court's decisions on child custody, spousal support, property division, and discovery sanctions. In Docket No. 331438, defendant appeals by delayed leave granted¹ the order finding insufficient information that plaintiff remarried and denying defendant's motion to modify the spousal support award. We affirm in both appeals.

This case arises from a divorce complaint filed in 2013. The parties were married in Syria in 1989. Defendant is a physician with his own medical practice. Plaintiff obtained her pharmacy degree in Syria, but was not licensed as a pharmacist in Michigan at any relevant time. Plaintiff was a stay-at-home mother for most of the parties' marriage, but she worked part-time as a teacher and a pharmacy intern at various times during the marriage. The parties had four adult sons and one minor child at the time of trial.

In late 2012, plaintiff left the marital home in Grand Blanc, Michigan, and moved into the parties' apartment in Egypt. Plaintiff took the parties' minor child with her to Egypt and filed for divorce in January 2013. The trial court held a bench trial and signed a contested judgment of divorce on December 1, 2014. The court addressed several issues in the judgment of divorce, including child custody, child support, spousal support, and property division. The court also awarded attorney fees to plaintiff. The court entered an amended judgement of divorce on March 20, 2015. Several months after the entry of the judgment of divorce, defendant moved to modify spousal support on the basis that plaintiff had remarried. The trial court held a hearing on the motion on July 2, 2015, and, after hearing testimony from experts for both parties, determined that there was insufficient evidence that plaintiff had remarried.

I. ATTORNEY FEES

In Docket No. 326775, defendant first argues that the trial court abused its discretion by awarding attorney fees to plaintiff. We conclude that defendant waived the issue by agreeing to pay plaintiff's attorney fees at the outset of the case.

A waiver constitutes the "intentional relinquishment of a known right." Reed Estate v. Reed , 293 Mich.App. 168, 176, 810 N.W.2d 284 (2011) (citation and quotation marks omitted). A waiver is shown through express declarations or declarations manifesting a party's purpose and intent. Id . During a March 4, 2013 pretrial hearing, defense counsel told the court, "There isn't anybody to pay [plaintiff's] legal fees except my client. So, she is going to be taken care of on legal fees ." (Emphasis added.) Defense counsel objected to "any huge legal fees ordered now," but also stated that plaintiff's attorney would "be well compensated for if not on a voluntarily [sic] basis, certainly the Court would order my client to provide her with legal fees." On appeal, defendant does not challenge the reasonableness of the attorney fee award. Instead, defendant contends that the trial court abused its discretion by requiring him to pay attorney fees without finding that he had the ability to pay or that he had violated a court order. We conclude that defendant waived the issue by agreeing at the outset of the case to pay plaintiff's attorney fees. Therefore, we decline to address whether the trial court abused its discretion by granting attorney fees to plaintiff.

II. PROPERTY DISTRIBUTION

Defendant argues that the trial court inequitably divided the marital property by ordering the sale of one of the commercial properties owned by the parties. Again, we disagree. On cross-appeal, plaintiff argues that the trial court's property division was inequitable because plaintiff received significantly fewer assets than defendant. We disagree.

The parties presented ample testimony at trial regarding the marital assets. In addition to the marital home located in Grand Blanc, Michigan, the parties owned an apartment in Cairo, Egypt. Both parties owned a 1/7 interest in a lake house in Fenton, Michigan. Defendant also owned property in Syria. Defendant owned his medical practice, and he was the sole member of an LLC that owned an office building referred to as the Saginaw Street property. Plaintiff and defendant were the only two members of an LLC that owned another office building referred to as the Richfield Road property. Defendant operated his medical practice out of suites in both the Saginaw Street and Richfield Road properties.

The court awarded defendant the Grand Blanc home and his 1/7 interest in the Fenton lake house. In addition, defendant was awarded his medical practice and the property in Syria. Plaintiff was awarded the apartment in Egypt and her 1/7 interest in the Fenton property. With regard to the office buildings, the court ordered the sale of the Richfield Road property and ordered that the proceeds from the sale be divided between plaintiff and defendant. With regard to the Saginaw Street property, the court ordered that defendant receive the suite out of which he operated his medical practice and that plaintiff receive another suite in the building. The Saginaw Street property contained a final unit called Unit C, which defendant sold during the pendency of the divorce case. The court ordered the parties to divide the down payment and monthly payments from the proceeds of the sale of the Saginaw Street unit.

In general, an issue is preserved if it was raised in, and addressed and decided by, the trial court. Mouzon v. Achievable Visions , 308 Mich.App. 415, 419, 864 N.W.2d 606 (2014). Defendant raised the issue of the division of the Richfield Road and Saginaw Street properties in his proposed findings of fact and conclusions of law, in which he proposed that plaintiff receive two of the Richfield Road units, while he receive the Richfield Road suite out of which he conducted his medical practice and the two remaining units of the Saginaw Street property. Plaintiff raised the issue of defendant's dissipation of marital assets in her proposed findings of fact and conclusions of law, in which she outlined the alleged dissipation of assets and recommended that the court assign the amount of the dissipation to defendant.

The trial court addressed and decided the issue raised by defendant in its judgment of divorce and corresponding opinion when it ordered the sale of the Richfield Road property and divided units A and B of the Saginaw Street property between plaintiff and defendant. Therefore, the issue is preserved. The court also addressed and decided the broader issue of the division of the marital estate, as well as the issue of how to divide the proceeds from the sale of the Saginaw Street unit, in the judgment of divorce. However, the trial court did not directly address and decide the dissipation issue raised by plaintiff. Therefore, this issue is unpreserved.

Although this Court need not address an unpreserved issue, it may overlook preservation requirements when the failure to consider an 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. [ Gen. Motors Corp. v. Dep't of Treasury , 290 Mich.App. 355, 387, 803 N.W.2d 698 (2010).]

Although the trial court did not directly address or decide the issue of defendant's dissipation of marital assets in the context of the property division, we will overlook the preservation requirements because our failure to consider the issue could result in a manifest injustice to plaintiff if she were correct that the trial court failed to consider defendant's purposeful dissipation of marital assets. In addition, we believe that consideration of the issue is necessary for a proper determination of the broader property division issue. Therefore, we will address plaintiff's argument regarding whether the trial court failed to consider defendant's dissipation of marital assets.

We review for clear error the trial court's findings of fact. Richards v. Richards , 310 Mich.App. 683, 693, 874 N.W.2d 704 (2015). " ‘A finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made.’ " Id . at 690, 874 N.W.2d 704 (citation omitted). " ‘If the findings of fact are upheld, [we] must decide whether the dispositive ruling was fair and equitable in light of those facts.’ " Id . at 693, 874 N.W.2d 704 (citation omitted; alteration in original). We will uphold the trial court's ruling "unless this Court is ‘left with the firm conviction that the division was inequitable.’ " Id . at 694, 874 N.W.2d 704 (citation omitted). With regard to the dissipation issue, because the issue was not preserved for appellate review, our review is limited to plain error. See Duray Dev., LLC v. Perrin , 288 Mich.App. 143, 150, 792 N.W.2d 749 (2010). "Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings." Id .

The overarching goal of a trial court's property distribution in a divorce action is equity. Richards , 310 Mich.App. at 694, 874 N.W.2d 704. "Although...