Silas v. McKenney

1

ROBIN E. SILAS, Plaintiff/Counterdefendant-Appellant, v. EVELYN A. MCKENNEY, Defendant/Counterplaintiff-Appellee, and JODI DEBRECHT SWITALSKI, Appellee.

Nos. 359472, 362867

Court of Appeals of Michigan

May 25, 2023

UNPUBLISHED

Macomb Circuit Court LC No. 2012-004854-DM

Before: Letica, P.J., and Borrello and Riordan, JJ.

PER CURIAM

In Docket No. 359472, plaintiff Robin Silas appeals as of right the trial court's November 17, 2021 order requiring him to pay one-half of appellee Jodi Switalski's lawyer-guardian ad litem fees in this postjudgment custody dispute. In Docket No. 362867, plaintiff appeals as of right the trial court's August 16, 2022 order requiring him to pay $1,500 to Switalski and $1,000 to defendant Evelyn A McKenney as a sanction for filing a frivolous postjudgment motion that sought, among other relief, to enforce plaintiff's parenting time and to remove Switalski as the children's lawyer-guardian ad litem. For the reasons set forth in this opinion, we affirm in Docket No. 359472, but reverse the portion of the trial court's August 16, 2022 order requiring plaintiff to pay Switalski's and defendant's attorney fees in Docket No. 362867.

I. BACKGROUND

The parties divorced in 2013. They have two minor children. Pursuant to a consent order, plaintiff was granted sole legal and physical custody of the parties' children. Plaintiff remarried in 2013. Defendant subsequently accused the children's stepmother of manipulating and emotionally abusing the children, isolating them, falsely reporting that they have serious mental illnesses, and forcing them to receive alternative medical treatments. In 2018, the parties entered into a consent order granting them joint legal and physical custody of the children.

In 2020, defendant moved to change custody and requested sole physical and legal custody of the children. She alleged that the stepmother was harming the children by "diagnosing" them with mental disorders that were not confirmed by any qualified practitioner. Pursuant to a stipulated order entered on December 17, 2020, the trial court appointed Switalski as guardian ad litem for the children. Although the order referred to Switalski as a "guardian ad litem" (GAL), it also provided that Switalski would have the duties and powers of a lawyer-guardian ad litem (LGAL) as defined in MCL 712A.17d. The order further provided that "[t]he GAL's fees are $300.00 per hour and shall be equally shared by the parties ($150.00/hour)." Additionally, any objection to the GAL's billing invoices were required to be brought to the GAL's attention within seven days of the billing date, "otherwise the billing shall be deemed agreed to." Plaintiff stipulated to the entry of this order.

After conducting an investigation, Switalski filed an ex parte emergency motion to award defendant sole legal and physical custody of the children. Switalski alleged that the stepmother's "pathological" behavior had harmed the children. Switalski believed that the stepmother's habit of diagnosing the children with mental and emotional conditions indicated that she suffered from a factitious disorder known as Munchausen syndrome by proxy.

Plaintiff opposed the petition, but in September 2021 the parties agreed to entry of a consent order awarding them joint legal custody of the children, but awarding sole physical custody to defendant. Plaintiff's visitation would be supervised by Dr. Ross Beckley in a therapeutic setting. Switalski subsequently moved for a show-cause order to require plaintiff to pay her fees. Although plaintiff had not previously objected to any of Switalski's billing invoices, he opposed Switalski's motion and argued that Switalski's requested fees were excessive in part because she had overstepped the bounds of her duties as a GAL. Following a hearing, the trial court determined that Switalski had been appointed as an LGAL and ordered plaintiff to pay his one-half share of Switalski's fees. Plaintiff now appeals that order in Docket No. 359472.

In October 2021, Dr. Beckley temporarily discontinued the therapeutic sessions because the sessions had become hostile. In June 2022, plaintiff moved to "enforce" the September 2021 consent custody order by reinstating his visitation sessions. He also requested new psychological evaluations of the children by a neutral practitioner and requested Switalski's removal as LGAL. In accordance with a referee's recommendation, the trial court denied plaintiff's motion and ordered plaintiff to pay Switalski's and defendant's attorney fees as a sanction for filing a frivolous motion. Plaintiff challenges the trial court's imposition of sanctions in Docket No. 362867.

II. DOCKET NO. 359472

Plaintiff argues that Switalski was never duly appointed as an officer of the court because the appointment order did not clearly specify whether she was appointed as a GAL or an LGAL, and accordingly, all of her requested fees are unreasonable, thereby relieving him of liability for any of her fees. Although plaintiff challenged the reasonableness of some of Switalski's fees in the trial court, he never argued that any ambiguity regarding Switalski's status as a GAL or an LGAL invalidated all of her requested fees or his obligation to pay any of her fees. Therefore, this issue is unpreserved.

To the extent that this issue involves the interpretation of a stipulated order, such an order is treated as a contract between the parties, subject to principles of contract interpretation. Andrusz v Andrusz, 320 Mich.App. 445, 453; 903 N.W.2d 636 (2017). Issues involving the interpretation of a contract are reviewed de novo as a question of law. Innovation Ventures v Liquid Mfg, 499 Mich. 491, 507; 885 N.W.2d 861 (2016). To the extent that this issue also involves the application of statutes and court rules, such issues are reviewed de novo as questions of law. Safdar v Aziz, 501 Mich. 213, 217; 912 N.W.2d 511 (2018). "Review of an unpreserved error is limited to determining whether a plain error occurred that affected substantial rights." Rivette v Rose-Molina, 278 Mich.App. 327, 328; 750 N.W.2d 603 (2008). "To avoid forfeiture under the plain-error rule, three requirements must be met: (1) an error must have occurred; (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights." Id. at 328-329 (quotation marks and citation omitted).

Plaintiff's obligation to pay Switalski's fees is expressly addressed in the December 17, 2020 stipulated order. Further, regarding the nature of Switalski's appointment, the order cites MCL 722.27(1)(d)(3)^[1] as authority for Switalski's appointment, but it also states that "[t]he GAL's powers and duties are those defined by MCL 712A.17d," which specifies the powers and duties of an LGAL. To the extent that the order is internally inconsistent, however, plaintiff stipulated to its entry, thereby consenting to Switalski's appointment and to his obligation to pay one-half of Switalski's fees, at the agreed rate of $300 an hour.

"A consent judgment is in the nature of a contract, and is to be construed and applied as such." Laffin v Laffin, 280 Mich.App. 513, 517; 760 N.W.2d 738 (2008). "If no reasonable person could dispute the meaning of ordinary and plain contract language, the Court must accept and enforce contractual language as written, unless the contract is contrary to law or public policy." Id. "In general, consent judgments are final and binding upon the court and the parties, and cannot be modified absent fraud, mistake, or unconscionable advantage." Id. To the extent that the stipulated order was ambiguous regarding the nature of Switalski's appointment, it was not ambiguous as to the payment of her fees. The order clearly provides that her fee would be $300 an hour, and that her fees would be equally shared by the parties. Although we agree that there are differences between a GAL and an LGAL, and that each serves distinct roles, there is also substantial overlap in their roles. See Farris v McKaig, 324 Mich.App. 349, 358; 920 N.W.2d 377 (2018). In any event, the distinction is immaterial to plaintiff's agreement to pay Switalski's fees at the stipulated rate pursuant to an order that also specified that Switalski would have all the powers and duties of an LGAL. Furthermore, in addition to specifying that Switalski's fees would be equally shared by the parties, and specifying that Switalski would have the powers and duties of an LGAL, the stipulated order further provided:

Any objection to the GAL's billing must be brought to her attention, in writing, within seven (7) days of the billing date, otherwise the billing shall be deemed agreed to.

Switalski presented evidence that she submitted invoices in April, June, and September 2021, and plaintiff did not timely object to these invoices. To the extent that plaintiff believed that Switalski was improperly charging for LGAL services, it was incumbent upon him to timely object to those invoices and identify any services he believed were unauthorized. Plaintiff having stipulated to bringing forth any objection to Switalski's billings within a timely manner as prescribed by the contract, is bound by the contract. Because plaintiff stipulated to the agreement and failed to bring his objections within a timely manner as outlined in the stipulated contract, we affirm the trial court's November 17, 2021 order requiring plaintiff to pay his one-half share of Switalski's fees.

III. DOCKET NO. 362867

In Docket No. 362867, plaintiff argues that the trial court abused its discretion by awarding Switalski and defendant attorney fees as a sanction for having to respond to plaintiff's postjudgment motion to enforce the September 2021 consent order.

This Court reviews a trial...