Whether attorney fees may be awarded in a criminal contempt proceeding for violation of a personal protection order (PPO); MCR 3.206(D)(2)(b); MCR 3.708(G) & (H)(5)(a); MCL 600.2591(23); MCL 600.1715 & 1721; O’Connor v Valcaniant (Unpub); Comparing Eldridge v Eldridge (Unpub); The “American rule”; Haliw v City of Sterling Heights

The court held that the trial court erred by ordering respondent to pay petitioner’s attorney fees after he was found in contempt for violating a PPO. Respondent pled no contest to violating the PPO and was sentenced to 30 days in jail, with 25 days held in abeyance. Petitioner then filed a petition for attorney fees under MCR 3.206(D)(2)(b). Respondent claimed attorney fees were not available in criminal contempt cases. The trial court granted petitioner’s motion, finding it had discretion to award attorney fees in this case. On appeal, the court agreed with respondent that the trial court erred by finding attorney fees may be awarded in a criminal contempt proceeding for violation of a PPO. “MCR 3.206(D)(2)(b) states that a court has discretion to assess attorney fees if the ‘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.’ However, this case did not involve divorce, separate maintenance, an affirmation of marriage, annulment, or paternity. Thus, under the plain language of MCR 3.201(A), the rules in Subchapter 3.200 do not apply to this action. The trial court’s reliance on MCR 3.206(D)(2)(b) was therefore erroneous.” In addition, although “the Eldridge panel did not specifically address an award of attorney fees, [it] nonetheless clearly addressed the costs or penalties a trial court may order when a respondent violates a PPO.” The panel ruled that “MCR 3.708(H)(5) explicitly provides different punishments for criminal-contempt cases involving a PPO violation and civil-contempt cases involving a PPO violation, and concluded that only MCR 3.708(H)(5)(b) permitted the award of costs as set forth in MCL 600.1715 and MCL 600.1721 for civil contempt.” The court was “persuaded that the same analysis applies to the question of whether attorney fees may be awarded in cases of criminal contempt. Both statute and court rule provide a specific punishment for a PPO violation that does not include the assessment of attorney fees.” Reversed and remanded.