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A Better Partnership
February 12, 2015

COA: Parties may move for modification of spousal support after support obligation ends

Georgii and Irina Loutts married in Russia in 1988. They later moved to the United States. During their marriage, they each earned a Ph.D. Georgii, a professor by day, also started QPhotonics, a business that buys, sells, imports, and exports light emitting diodes (LEDs). Irina worked as an adjunct professor and as QPhotonics’ accountant.
 
The couple divorced in 2008 and the court entered a judgment dividing most of their property 50-50. The court also awarded Irina four years of rehabilitative spousal support, a cash payment of $247,788 as an “equalizer,” and half of the value of QPhotonics—approximately $140,000. Seven years later, in Loutts v. Loutts, No. 318468, the Court of Appeals concluded that a motion to modify spousal support, made after the termination of spousal support, lacked the necessary support to establish a chance of circumstances since the divorce.
 
In this most recent trip to the Court of Appeals, Irina first challenged the trial court’s denial of her motion to extend and modify spousal support. She argued that her support should be increased and extended because she suffered from bleeding stomach ulcers and was unable to find work in Michigan’s bleak economy.
 
The trial court had dismissed Irina’s arguments because they were untimely. The trial court held that Irina needed to make her motion to modify and extend support prior to the termination of the support obligation. Irina made her motion in June 2013, but her spousal support terminated back in April 2013. The court, therefore, denied her motion. The Court of Appeals corrected the trial court, in that there is no such bright-line rule for the timing of a motion to modify or extend support. But it was a harmless error because Irina failed to show the necessary “change of circumstances” since the divorce judgment. Though she had allegedly developed ulcers and was unemployed in the midst of a dismal job market, the Court of Appeals affirmed that Irina failed to substantiate her claims that she could not find work. Perhaps the final nail in the coffin, while Irina claimed that her debilitating ulcers formed in March 2012, she failed to make her support motion until June 2013. The Court of Appeals, therefore, held that Irina failed to show the necessary change of circumstances in a motion to modify or extend spousal support.
 
Next, Irina argued that Georgii should have to pay her divorce-related attorney and expert witness fees. An award of attorney fees in a divorce action is proper “only as necessary to enable a party to prosecute or defend a suit” or when payment of the fees would require the fee-seeking party to invade the same assets they rely upon for support. Myland v. Myland, 804 N.W.2d 124 (Mich. Ct. App. 2010). The trial court held that Irina failed to carry her burden of proof that she could not bear the expense of litigation. In fact, she was awarded a cash equalizer payment of $247,788, rehabilitative spousal support for four years, $62,000 in a distribution from Georgii’s retirement account, and $50,000 as an advance against the property settlement. The Court of Appeals, therefore, held that the trial court did not err in denying Irina’s request for attorney and expert witness fees.

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