In family court proceedings, judges determine civil contempt sentences based on a person's ability to pay child support obligations, and when awarding attorney fees, courts apply established legal factors including the attorney's experience, reputation, case difficulty, results obtained, and geographic billing rates to ensure fees are reasonable and necessary.
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Mom Begs Judge To Avoid Jail Over Child Support — His Response Shocks HerAñadido:
What we're going to do is uh we're gonna need to take some testimony from you.
So, >> this is a scheduling. Sorry.
>> Oh, scheduling. I'm sorry. I thought it was a different hearing. Um, okay. What I'll ask you, Miss Vicaro, just so uh what issues do you believe to be in dispute in the case?
>> Can you explain the question?
>> What are you arguing about?
>> Oh, I just want we're just trying to get um a divorce. There's just a lot. Um, and the marriage has definitely completely dissolved. Uh, we've been separated since the beginning of June.
Um, and you know, we were separated a few times before trial separations and um, yeah, there's just way too many issues and fundamentally the marriage just doesn't work. Um, it's just kind of tricky because we do have two children together.
>> Okay. Let me ask Mr. Ricaro, what issues do you believe are in dispute in the case >> with um like she said, you know, our marriage has been failing. We tried to make it work. Um especially for the kids, but um we just come down to us working as parents, we're perfectly fine, but as a couple, we feel that >> it's not the best environment.
>> Let me ask it this way. Are you are you disputing or fighting over custody, parenting time, child support? I'm I'm fine with paying child support. The only thing I want is to be able to have joint custody.
>> Okay. And is there any property disputes?
>> No.
>> Are you fighting over spousal support?
>> Not to my knowledge.
>> Okay. I'll go back to you, Miss Vicaro.
Do you believe that there's any dispute over custody? Um, I would like full custody at this point and for William to have visitations just because he doesn't really have a lot of resources at the moment or appropriate person.
>> I don't need a detail. I just need to know what issues are in dispute.
>> Okay.
>> It looks like custody is in dispute at least at this point and Okay.
>> Yeah. Cuz I would like full custody. Is there a way to do full custody for me now and then when he has better living situation everything then later on for him to have shared custody?
>> You can always change what happens whatever goes in the judgment you can always change it later if you wish to do so. So >> okay >> that's up to the two of you.
>> Okay.
>> What I'm trying to garner is as a scheduling conference we're trying to put in place various dates and procedures so that the case will proceed in an orderly fashion. So if you have a dispute as you're saying, we have a custody dispute, then the court would put it down as a contested matter and one of the things we would have to do is we'd have to set in place a mediation process. That's where an attorney mediator would meet with the two of you and attempt to come to a resolution in the case. I will tell you there is an expense involved because they don't they don't work for free. And uh so if you have no disputes, the court wouldn't send you to mediation. But if you do have a dispute, then you would have to go to mediation.
>> So that's up to you.
>> Um, so if if I may interject, um, if I'm able to later on go back into having joint custody, then I'm okay with that.
I just want to make sure that I'm still in my kids' lives and I want to make sure that legally >> I'm still in my kids' lives.
>> Okay. What would happen?
>> Legally, you'd have visitations. So if you >> what would happen is at some later point if circumstances change you could always petition for a modification of custody.
>> Okay.
>> And uh what happened is you'd have to estab you'd have to establish the legal burden to do so uh in this particular case. But that's up to you and you'd have to uh uh again establish those facts by clear and convincing evidence and then the court could always modify it. Well, what I'm going to do is I'm going to give you a little more time.
I'm not going to put in place a scheduling order because if I do, then the the mediation process starts. So, there's a cost initially to schedule mediation and all that. What I'm going to do is Miss Macar will give you an opportunity to prepare a proposed judgment, a child support order, and a judgment information form. Those three pleadings. Are you working with a uh service, Miss Vicaro? No, I'm not working with a a >> You can go to michiganlealhelp.org and all the forms are online and it takes you through the process. Are you filing for divorce? No, you've already done that. Uh, you know, what are you preparing?
>> Stock of papers that on I downloaded already. So, yeah, I think I have this form.
>> Okay. So, you'd have the form for you need the judgment of divorce, you need the uniform child support order, and the judgment information form. those three pleadings, you would submit those to Mr. Vicaro and if he approves them, then you could submit them to the front of the court for their approval. Once you have the front of the court's approval and Mr. Vicaro's approval, then we'd be able to complete and do the final hearing at that time. Okay. Any questions, Miss Vicaro?
>> I don't think so. Not at at this time.
>> Okay, Mr. Vicaro, any questions?
>> Uh, no, not at this time.
>> Great. What we'll do is we'll end the hearing now at 8:45. uh you're free to go. Have a good day and uh Miss Vicaro, get working on that because sometimes you do it and you have to submit it to the front of the court multiple times if you miss something. Okay.
>> All right. Well, thank you. I appreciate it.
>> Thank you.
>> Also, Jes, how far out should we set a status conference tomorrow?
>> Probably about 45 to 60 days. What we'll do is set a status conference. that'll let us keep contact because I'll tell you we have thousands of cases and if we don't have a follow-up date you might get missed and lo and behold nine months would pass and we wouldn't be in contact with you or something. So that's why we'll put it out about 45 to 60 days and then check on you at that point see what's happening.
>> Let me see.
>> Is this Mr. Craig Buchanan on the phone?
>> Yes it is.
Um, I was going through the Zoom app, but I wasn't sure if that was working or not because I was on um at 10:00 until now. So, I just hung up on there and just called in.
>> You're fine. You're fine now, sir.
>> Okay. And uh, Miss Plat, Miss Buchanan is the respondent.
>> That is correct.
>> Okay. Miss Buchanan, in this matter, you're before the court charged with civil contempt of court. As a result of your failure to pay child support and or related expenses upon a first conviction, you could be ordered to serve up to 45 days in jail. If it's a second or subsequent offense, up to 90 days in jail. Do you understand the charges?
>> Um, not 100%, your honor, but they >> Well, you're charged with civil contempt of court. We're having a hearing today on that charge. And you could serve up to 45 days in jail if you're found to have in fact violated the order. And if it's a second or subsequent offense, up to 90 days in jail. Do you understand that?
>> Yes.
>> Okay. Court would advise you. You have a right to an attorney. The court would appoint an attorney to represent you should you desire an attorney. It's my understanding you wish to proceed without an attorney. Is that correct?
>> Yes.
>> Okay. And are you doing so freely and voluntarily?
>> Yes. Has anyone threatened you, coerc you using any undue influence, pressure, or promises to get you to uh again to uh wave your right to an attorney?
>> No.
>> Okay. Thank you. The court will find that Miss Buchanan does freely and voluntarily wave her right to an attorney.
>> In this matter, um well, in both matters, Miss Buchanan is here by way of bench warrant. Um she failed to appear for an adjourned show cause before your honor back on March 15th of 2023.
In this 2010 matter, she's currently ordered to pay $272.50 each month. Last payment was a $200 bench warrant clearance payment that was made on August 30th. This is the fourth show cause, the only bench warrant with no prior contempt findings. Compliance was measured over 9 months at the $272.50 each month obligation. During that time, she only paid the $200 benchmark clearance payment, leaving her shortfall at $2,252.50.
At this time, there is current assistance for her by way of Medicaid and food stamps. Current aarage on this docket is $7,64.33 as of the end of August, and she's had no prior jail sentence. The other docket is 20191703DS.
Again, Craig Buchanan versus Renise Buchanan.
In this matter, she's only ordered to pay $226.50 each month. Compliance was measured over 9 months with again only $200 being paid for the bench warrant clearance in this matter as well. Current rearage in this matter is $7,0154 as of the end of August. And again, no previous jail sentences for her in either matter.
>> Okay. Thank you.
Miss Buchanan, do you dispute or contest any of the statements made by Miss Clattic?
>> Yes, I dispute um that I receive food stamps. I do not receive food stamps, only Medicaid. I do not have a bridge card.
>> Okay, we'll make that correction.
Anything else?
>> Um, no, your honor.
>> Okay, Miss Buchanan, what uh would you like to tell me?
>> I would like to tell you that um since 2019, I've been under extreme financial hardship. I was only to able to pay the bench warrants just so that I could still um make income to pay past utility bills which I'm also getting help now from DHS to become current on. I am not as of yet. And I would also like to um let you know that I work as a delivery driver for grocery apps, Uber Eats, Instacart, and ROI. And that is my only forms of income due to um self diagnosed social anxiety.
>> Okay. Okay. Do you say self diagnosed?
>> Yes, sir.
>> Okay. So you have no training or other things that would provide you with any sort of expertise on social anxiety. Is that correct?
>> That's correct.
>> Okay. What what do you figure your normal average weekly income is from the uh delivery services?
>> Well, it is rather unpredictable, but I gauge it by $14 an hour. I would have to make $100 a day. So, I try to make $100 a day, no matter what, to stay at the pay rate of $14 an hour, which was my last job.
>> Okay. So, you basically you pretty much work full-time then. And so, you make about $500 a week.
>> Yes.
>> Okay. And uh you stated that you have a financial hardship, but don't you believe that the uh father and raising the kids, if he's not getting any support, has some financial hardship as well? I believe that he does have some financial hardship as well, but I also know for a fact um with him and being around when we were together that he also has um family support as well.
>> Okay.
>> Which I do not.
>> Okay. But you have sufficient at or a week you have sufficient income. Your support obligation in these matters would be uh approximately $500 a month.
So, why haven't you paid more than just simply the bond amounts?
>> I have not paid any more than that due to the fact that I'm trying to keep current on my utility bills, which are very much past due. I'm still not um able to use all of my utilities. So, it's very hard once you are behind on um multiple things to get caught to even and then pay some of my obligations. But I do um I am trying your honor.
>> Okay. Anything else that you would like me to be aware of? Yeah.
>> Yes. I am also doing research into um trade programs.
This was back when the seasons change because I know that that'll be more stress on any vehicle I'm able to use for delivery. So, I would like um to be enrolled in the trade so that I'll have that skill to put towards any employment and on a more permanent basis.
>> Okay. Anything else? I want to make sure that you have every opportunity to uh make me aware of any situation that you might have in this matter before the court makes a determination. So, if there's anything else, this is your time to mention it.
>> Yes. Um, I would also like to mention one more thing as far as um my residence. Um, my lease is up in January and my rent is excuse me, $1,200 a month. So, I do plan when my lease is up to downsize to something more affordable.
>> Okay.
>> And that was all.
>> Okay. Thank you. Well, court will make the following determination this matter that as stated, Miss Buchanan does make Well, let me ask this first. I'll ask Mr. Buchanan. Mr. McKenzie, is there anything you'd like to add or state before the court decides to?
>> Um, no sir, not at um not at this moment.
>> Okay. Thank you.
>> You're welcome.
>> Well, as the court stated that the amount of child support in this matter is less than $500 per month in this particular case that the respondent, Miss Buchanan, testified that her income is approximately $500 per week. uh that she had suffered since. He said since 2019 she'd had some financial hardship but not withstanding that she obviously does have sufficient income to uh support herself and to pay the child support in this particular matter.
Notwithstanding that again she alleges financial hardship but she also recognizes as well that the failure to pay is putting the uh Mr. Buchanan at financial hardship as well. and uh court finds that she does have the present ability to make payment that she's failing or refusing to pay support is ordered, the court will find her in contempt of court. Ma'am, is there anything you'd like to say before sentencing?
>> No, sir.
>> Okay. This is your first you have no prior jail. So, the court's taking all of that into consideration. But uh beyond the fact that you have not to pay, the court is going to sentence you to 10 days in jail to commence on September 29, 2023, no later than 4:00 p.m. that you would report to the Calhoun County Jail or uh in lie of that, the court would order that you would pay a purge amount of $500. So if you pay the $500 be on or before that date, you would not have to go to jail.
Do you have any questions, ma'am? No, your honor.
>> Okay. Thank you. Oh, Miss Platic.
>> Judge, is that 250 on each case or 500?
>> Yeah, 50 on each case.
>> Thank you.
>> Okay. Thank you. The court will conclude this hearing at 10:29 a.m. and Christopher Tobaca. Attorney Schaeer for plaintiff and attorney Elaine for defendants.
>> Good afternoon to all of you.
>> Good afternoon, Judge.
>> Great.
>> Miss Elaine, are you uh ready to proceed?
>> I am.
>> And Mr. Schaefer?
>> Yes.
>> Okay. Mr. Seline, do you wish to make a opening statement or proceed to your proofs?
>> I'll proceed, your honor.
>> Okay, go ahead.
>> I'll call Chris.
>> Let me ask Let me ask Mr. Schaefer if he wants to do an opening statement now or reserve or wait.
>> I'll reserve, your honor.
>> Okay. Thank you. Go ahead, Miss Elaine.
>> I call Chris Tobaca, please. Dr. Tobaca, you're my client in this matter, correct?
>> Correct.
>> How did you locate me as your attorney?
>> Uh, my wife used during her divorce proceedings and strongly recommended you. And you did not hire me at the beginning of your case, did you not?
>> I did not.
>> You ultimately switched attorneys from was it Erica Solerno?
>> Yes.
>> And how did you get to Erica?
>> Uh Erica was a recommendation that we were given. So I had switched to Erica.
>> Who recommended her to you?
>> Uh you did actually.
>> And why did you switch? Just in brief, without talking about anything that might be privileged, but just in brief, why did you switch from Erica to someone else? Uh Erica was great, but she just stepped. She wasn't as responsive, I guess, as we needed in terms of what was going on.
>> All right. And do you recall her hourly rate?
>> Oh, yes. It was $420 an hour.
>> Did you receive invoices uh line item and detailed billing invoices from Miss Serno's firm?
>> I did.
>> I would propose for I would propose exhibit H as um our we're defendant defendants. Exhibit H. I would like to present uh for admission and let me share my screen. Do you recognize what I put on my screen as proposed exhibit H?
Dr. Tobaca, >> I do.
>> And what are these >> uh invoices from Varnum for her services?
>> For the record, this is a 13-page exhibit. And are these invoices the ones that you received for Miss Solerno's work on your matter?
>> Yes. Do the invoices include uh attorney fees that were incurred by you related to the show cause in that's subject of this attorney fee hearing?
>> They do.
>> And do they also include fees that were not related to the show cause but to other matters that she was handling for you? And if you estimated the total of all of the invoices that you received, what is the approximate number of attorney of attorney fees that you incurred with Miss Solerno?
>> U between about five and $6,000.
>> All right. And you have not in this hearing uh or proceeding asked for reimbursement of any of these fees. Is that correct?
>> I have not.
>> And why is that?
>> Um didn't want to get Erica involved, Mr. Leno involved in terms of having come in and testify. Um don't want any I don't know overlap. I guess >> object to the relevance then your honor that's not being offered.
>> I would say that the relevance is to reasonleness of the total fee that he incurred when he is not submitting fees he actually incurred. that the scales toward the ones he did incur more toward the reasonableness level. And there's been an argument that the fees and time expended on this case weren't reasonable, but actually it's quite a lot more than what we've even presented.
>> Well, that purpose then it's not going to require me to go into each and every one of these uh exhibits if it's going to be there for reasonleness.
>> Okay. Well, what I'm going to do is I I think it is uh not appropriate at this point. We're we're doing the attorney fees as it relates to these issues. He states it included other matters. So, you know, we we can address the fees that are contained in exhibit H excluding anything else that he might have any other work or any other issues that he may have been addressing.
>> All right. So, I um I would move for the admission of H.
>> I object to the H. They're redacted, your honor. Uh they're not uh on their face a determination of uh the show cause issue that the ruling of the court was at. they're redacted to a point uh even the ones that in there uh as to you can't make heads or tails as to uh what it was referencing and this was a document uh produced by a third party that is not here so I don't think the proper foundation is laid uh I need we need to cross-examine as to what the redactions are >> well you can always cross-examine as to that Mr. Schaefer, but uh it does, as I reviewed exhibit H, and I had opportunity to do that. It does seem that it pertains to these proceedings and the denial of parenting time. And uh again, it uh Mr. Tobac has testified that these were the fees that he paid in reference to that. So, I will admit it at this particular time and subject to your cross-examination, Mr. Schaper.
>> Okay. Just for the record, I believe that his testimony was that some of this was not for the show cause and we don't have any determination of what that is.
So I don't >> and again, yeah, your honor, we're not admitting it so that anything from these bills are awarded. So it it seemed pertinent in preparation for this to break out the number, but the point is the court can flip through it as it's already indicated, see that some of the charges were for the show cause. It's uh we're just move we're just presenting it for the fact that he paid more than what he's asking for today and that's it.
>> Okay. Well, for that purpose, the court will admit it.
>> Thank you. Dr. Tobacco, did you sign a engagement agreement with my law firm?
>> I did.
>> Dr. Tobacco, have you received periodic invoices from me?
>> Yes, I have.
>> Have you reviewed the bill of costs that I submitted in this case?
>> Yes.
>> Do the charges on that those bill of costs that I submitted in this case correlate with the invoices that you received? Yes.
>> And on the invoices you received, those invoices uh do they reflect charges for other matters that I'm dealing handling for you other than this show cause proceeding?
>> Could you say that again, please?
>> Yes.
>> On the invoices that you've received from my office, were there charges in addition to charges for the show cause?
>> Yes.
>> Do the charges on the bill of costs that I submitted include any charges that were on your invoice for proceedings in your case other than the show cause?
>> I may object at this point in time. I don't know what bill of cost she is referring to. She filed a a of with a strange title of what necessary and reasonable costs. I don't know. It's a bill of cost. A bill of cost normally is under oath and there was nothing that I received under oath. So I don't know what reference is being made. So I guess I would ask for clarification what bill of cost she's referring.
>> Okay.
>> If you could I in your exhibit you had exhibit B and C. Is that what you're referencing? It is your honor and B was attached to my what it was not a motion it was a statement of necessity.
>> Why don't you share the screen and go through with Mr. Tobaca and we can establish >> Absolutely. All right Dr. Tobaca I've put on my screen what we are proposing as defendants exhibit B which is labeled Christopher Tobaca's bill of cost for show cause proceeding. Do you recognize this document?
>> Yes.
>> And this was a three-page document.
Correct. Mhm.
>> And this was originally attached to a we submitted to the court after the court ordered us to produce a bill of cost. Do you recall that?
>> I do.
>> And additional Did you incur additional costs related to the show cause after the deadline came and went for us to submit our bill of costs?
>> I did.
>> I'm going to now show what we are proposing as defendants exhibit C. And Dr. Mr. Tobaca, is this the second bill of cost for the show cost proceeding that we have submitted as an exhibit proposing?
>> Yes, >> I would move for the admission of both B and C.
>> Okay, Mr. Schaefer, >> I uh I guess I need to board here, I guess, Dr. Dvaka at the moment.
>> Well, that's why I didn't put these up at first because I created them. So, I was going to address them in my own testimony.
>> Well, I guess if it's it's some by somebody else. So I guess I would object to proper foundation is laid laid at this point in time.
>> Well, Mr. Elaine, maybe you can establish at least for the bill of cost that's what he's paid and incurred. So >> yes, that's where I was headed and your honor to put it up on the screen. So I did so.
>> Okay.
>> All right. Um Dr. Tbach, I was asking you in relation to our proposed BNC if any of the charges that were included on B and C were charges related to the other matters that I am handling for you. No. Sorry, you broke up a little bit there. For instance, for instance, you are also litigating custody in this case, correct?
>> Correct.
>> And you are also litigating child support in this case, correct?
>> Uh, we were. Yes.
>> Yes. Does do either B or C reflect any of the charges that you incurred for custody or child support purposes?
>> No.
>> Do you know, sir, the approximate total amount of lawyer fees and costs that you've been build by my firm so far in your case for all components of your case? I guess that's irrelevant, your honor.
It is not irrelevant because Mr. Schaefer has made the claim in his objection to my bill of costs that a I've padded the bill and b that I've included fees for things other than uh the the cause at issue. And so this court uh will may find the fact useful what the total attorney fees are for all matters versus what we have submitted in relation just to the show cause for comparison purposes. Miss Elaine, I I the objection because I'm I'm really concerned what the total is on other matters, but only as it relates to the show cause on pairing time. I think that's reflected in exhibits B and C.
And I think I can look at that as, you know, to make a determination.
>> I have no problem with that, your honor.
I was just trying to be responsive to some of the arguments against my bill.
>> I know you just don't have to uh anticipate Mr. Schaefer's arguments.
>> All right, good enough.
Let me see where I left off here then.
All right. Uh Dr. Debbaka, have you also paid some expenses that were not included in our bill of costs that were directly related to the show cause?
>> Yes, I have.
>> And do you recall what those expenses were?
>> Yeah, mainly transcripts from the various proceedings that we've had on this matter.
>> Transcripts that you paid for directly.
>> Paid for directly with the um transcriptionist. Yes.
>> And have you also attempted to minimize your attorney fees in any way by doing leg work yourself in this case?
>> As much as possible. Yes. uh spent a lot of time at the justice center the last few months driving documents there and back and such. Yeah.
>> Do you maintain frequent contact with me as your attorney?
>> I do.
>> For purposes of your matter?
>> Yes.
>> Do you prepare uh data or analyses and summaries of materials that you expect for me to review?
>> I do.
>> And would you say that the materials and thoughts and questions that you reach out to me about are frequent or infrequent? And do you believe that the communications that we have about and have had about the show cause have been necessary communications?
>> Yes, absolutely.
>> Do you say that you spend a little amount of time, a moderate amount of time or a significant amount of time providing information to me to review and analyze?
>> Uh, probably a moderate amount of time.
>> Do you believe that I'm responsive to you?
>> Yes.
>> When you have reviewed my billings to you, have you ever questioned a line item on the bill?
>> I've reviewed them and no, I have not had a question. Have you ever formed an opinion that the time reflected on my invoices was unreasonable as compared to the work going into your case?
>> No, it's not extremely fair.
>> As my client, have my fees seemed reasonable to the case and necessary?
Reasonable in terms of amount and um hours and amount and then necessary as to the work being done on your matter.
>> Uh yes, on both counts. Clearly, >> I have no further questions. I should have unshared my screen. Here we go.
Okay.
>> I have no further questions for Dr. >> Thank Thank you, Mr. Schaefer. Uh, could we have uh Okay. Could we have exhibit one back shown? Excuse me. Exhibit A.
>> Do you have that, Mr. Schaefer?
>> I don't have that. I I have a copy of it, but I want to cross-examine Dr. Debbaka about it.
>> I Okay. Uh, Mr. Lane, could you share that and put it up for as Mr. Schaefer doesn't have it?
>> I can, your honor. Can I add to my bill for being Mr. Schaefer's assistant in this court?
>> No, you you'll have to take that up with Mr. Schaefer. I mean, it's three four years into Zoom hearings in the pandemic.
>> I didn't didn't get the uh the comment.
What's the comment? Exhibit. So, I'm just asking.
>> I'm unclear why you're not able to do it yourself, but I'm happy to help.
>> Thank you.
>> I will note too, you know, actually for the record and I'm going to do this one, but then maybe there's a different approach because I I'm taking notes and such during this on my computer. So, now I have to manage my computer and use it for showing Mr. Schaefer's exhibit, you know, my exhibits for Mr. Schaefer. So, it's not really practical for me to do it. I'm going to do this one and then maybe we can figure out a different way.
>> Okay. Well, maybe we can. I don't know.
Mr. Schaefer, if you uh Miss Elaine did disclose those exhibits. Did you make copies or can you have your staff make copies of the others?
>> I have copies of all the exhibits that she presented >> in front of me. I I need to have the ability to have Dr. Debbaka look at them at the time that I cross-examine.
>> Well, maybe he has copies himself that he >> That's fine. The um Dr. Dr. Baka on exhibit one. This uh fee agreement uh covers uh a limited appearance. Did you understand that uh for your representation by uh Miss Elaine?
>> Objection relevance.
>> Mr. Schaefer.
>> I didn't hear what the objection was.
>> Relevance.
>> Well, I she had him identify this as their agreement. So, I need to determine what their agreement was and what the representation was for.
>> Well, go ahead, Miss Lane. I mean, unless there's a reason it cover it says it covers parenting time related matters. Unless there's a direction here we're going that's going to invalidate the fees that I charge, I don't see the relevance of having them go through limited appearance and so forth.
>> Well, that's what I'm trying to do, your honor.
>> Yeah, I'm I'm going to allow you some leeway. Go ahead, Mr. Shaver.
>> Do you realize it was a limited appearance uh for custody and parenting time limited excuse me related matters, but not child support related matters?
Did you understand that?
>> I see that. Yes. Is is that was that your understanding?
>> Yes.
>> And uh did you enter into this on November 17th of 2022?
>> I would have to see the date on the document. I don't remember the exact date.
>> Well, would uh it be shared up six of seven. Did you sign it on that date?
>> Uh I believe so. Yes.
>> And is that the date that you understand that the representation took place?
>> Yes.
>> Okay. And uh that included the hourly rate that you hired her. Is that correct?
>> Correct.
>> Okay. Uh, could we see exhibit B, please?
>> I'm going to need to use my computer for my note takingaking.
>> Well, we're a little bit in trouble because uh, Mr. Tbaka doesn't have copies. Mr. Schaefer does, and uh, I don't know how we're going to do it without uh, >> it should be incumbent upon Mr. Schaefer to be able to share his own screen for exhibits and Zoom hearings.
>> I don't believe that's accurate. Not Not the exhibits.
>> Well, we could always say it's incumbent on Mr. tobaca to have copies too. So, >> but how's he and he has to share his screen?
>> No, but he's Mr. Schaefer is just simply doing it for purposes of cross-examination and your client is the one that doesn't have the copy. So, >> I'll continue writing my notes. B is on the screen.
>> Okay. Thank you. Um, >> judge, if you wanted to, I could try to do the screen sharing from here.
>> Would that work for you, Miss Elaine, if we did it?
>> I'd very much appreciate it.
>> Okay. And just so Mr. shape or not knows for future reference. We always have the attorneys that uh if they're doing it that they do the screen share on the exhibit. So maybe I have to figure that out in the future.
>> What page exactly are we looking at?
>> Page two of three.
>> Okay. Uh can you see it? Does it look >> Mr. Debbaca? Dr. Black, can you see uh page two of three?
>> Yes.
>> Okay. the um you got charged prior to your agreement uh one hour for consultation on November 3. Is that your understanding?
>> I was charged for 1 hour on November 3rd. Yes.
>> And uh the next charge is November 16th and I have a little difficulty of determining what that you got charged a half hour. What's your understanding that what that hour is for?
>> Open file draft. File and serve appearance of council. Draft and circulate via docy sign substitution of councel. Um substituting Natalie for Erica. file. Same with the court.
>> Okay. And uh that was prior to you signing any fee agreement, correct?
>> Uh it appears that was the day before.
>> Yep. Okay. To November 30th, there was an entry of 30 emails uh November 2022 uh an hour's worth. What uh emails uh were is that referencing? Do you know?
>> Well, I would object just because it sounds like we may be getting into privileged areas. So, I don't exactly know what Mr. Schaefer means by what emails, but I I think there's danger of asking him a privileged question.
>> Well, if it's privileged, then there's a procedure that's available that they be reviewed in camera. But I I think uh certainly have a right to know what he got charged for and what 30 emails there were.
>> Well, Mr. Schaefer, I'm going to allow you to go into the emails as they pertain to what matters, but I'm not going to let you get into any work product or privilege communication between the client and the attorney.
Well, I understand that. But if if if he is saying he should be reimbursed for an hour on that day for 30 emails, I think we need to know whether or not they have to do with this particular matter or something else that he's being represented on.
>> Like I said, you can go into it generally.
>> Okay. Uh Dr. Debbaka, what 30 emails are being referenced on November 30th?
>> Legals are 30 emails that I had with Miss Lane. I couldn't tell you what specific emails those were. I obviously don't remember that. Well, are you aware of 30 emails that you had? Did you send her 30 emails in November?
>> Again, your honor, I believe that would be privileged. Who sent who emails and what our communications were?
>> I don't think that's privilege, your honor. Maybe the content is, but the fact of the emails aren't.
>> Well, I'm going to again, I guess I'm going to go into that obviously if there's a way to determine who sent who the emails, but he won't let him go into the substance of it. Did you send Miss Elaine 30 emails in November?
>> I believe that was our emails sent from both sides. So, Miss Lane sending me emails and myself sending her emails.
>> And did you have uh email communication with her on other subjects other than the show cause in November?
>> November of 22. Predominant case going on at that time was the show cause. Um, in terms of splitting those emails up, I just tell you is that it was a predominant case going on at that time.
>> Well, how many emails did you send? uh Miss Elaine in November of 22.
>> I don't know. Again, those 30 emails are emails sent from one party to the other party and it could be either. I mean, it's cumulative email communication.
>> I understand. But my question is, how many did you send?
>> I don't know.
>> How many did you receive from her?
>> I don't know.
>> Did you send emails to Miss Elaine and receive emails from Mr. Lane on subject matters other than the show cause in November of 22?
>> Could you say that again, please? In November of 22, did you send Miss Elaine and did you receive from Miss Elaine emails concerning other matters than the show cause?
>> Yes, those those 30 emails are the ones related to the case at hand. There were actually many more emails than that uh regarding the other cases as well. This this bill of cost just showing the emails that pertain to show cause in terms of parenting time. Well, did you review the the 30 emails that were listed on November 30th to assure that they were show cause related?
>> I did not.
>> Then how are you able to tell us that those are only show cause emails?
>> Because there were many more. So if there are 30 listed, then I have to assume those came from the show cause because the rest were for the other matters at hand.
>> Well, >> I didn't I did not go and look at each email and add them up to the 30.
>> Okay, very good. the things that Miss Elaine build you for on January 4th, uh, you have no personal knowledge other than what she related to you as to what time we're involved. Is that correct?
>> Would you say that again, please?
>> On January 4th of 2023, you got there's entry of re discovery response from Alexis employer. Do you have any personal knowledge as to what she did in that regard? Yes, this was the uh subpoena to the county requesting her work hours and correlating those with the parenting time.
>> Well, that's not what she uh put down.
She put review of discovery. Do you know what she did to review the discovery?
>> I thought I just answered that. She received discovery and reviewed it in terms of what she received from Alexis's employer.
>> Well, that's how do you know that's what she told you?
>> Yes.
>> Were you there when she did it?
>> Objection, your honor. I mean, this is a little um I guess unreasonable line of questioning in that it's probably common sense that the client isn't over our shoulder when we perform all of our work for the client. So, it just seems a little bit unreasonable.
>> Well, it's being entered under Dr. Debbaka's uh identification. So, I what else do I have but go through each one of these and determine what he knows about them?
>> He can question me because I'm going to testify.
>> Maybe that would be an easier way for you to handle it, Mr. Schaefer.
>> Okay. Very well. Good. Uh, let's go up to February of 23. There are 65 emails for February 23. Do you know personally?
>> Do I know personally what, Mr. Schaper?
He broke up.
>> Uh, there are listed 65 emails under February 28th of 23. For February of 23, as I take it. Do you know what 65 emails those are? Uh, those are ones that pertain I mean I assume this length test, but they pertain there were far more than 65 emails that month. I can guarantee that. Um, those are the ones that pertain to the show cause case.
>> And how do you know that? Did you go through and count 65 emails?
>> I did not go through and check Miss Elaine. I've never had an issue with any of the line items she sent me. So, I've never had cause to.
>> Okay. So, so you don't know. Okay, fine.
Go back uh to page one, please. On March 31, there are 42 emails for March of 23.
Are you uh familiar with what 42 emails are being referred to there?
>> Again, miscellane bills for emails once a month. Uh I'm sure there were numerous emails. We we're in close communication.
I don't specifically know which 42 emails there are. Those were >> Okay. Your recollection you sent more than 42 emails in March.
>> Yes.
>> Okay. And uh I reference uh April 30th of 23. There's 28 emails. Do you know what 28 emails those are?
>> Again, there were more than 28 emails.
Those are the ones I assume that pertain to the show cause >> on May 31. Uh your bill for 25 emails.
Do you know what 25 emails those were?
>> They were a portion of emails sent in the month of May regard regarding the case and the the cause case.
>> From your testimony, I take it that you would email or receive emails more than two times every day of every month during this time period. Is is that consistent with your recollection? Email is our primary mode of communication and no it's not a matter of two emails a day. My recollection is we go back and forth 5 10 15 times on a subject next week do do similar and that's what adds up.
>> You know if you got charged per email or on a time basis >> I assume it's on a time basis. Um I believe ma bills according to I don't know you ask I'm not sure. Well, okay.
And uh did you send emails to the office that were not to Miss Elaine, but to somebody else in the office? I will save uh my further uh cross on those exhibits, your honor, for Mr. Lane.
>> Okay. Thank you, Mr. Lane. Do you have any redirect?
>> I do not.
>> Okay. Thank you.
>> Oh, Mr. Schaer's uh finished with that.
I'm sorry.
>> I thought correct, Mr. Schaefer, you are complete on your right. Okay. I thought he was.
>> Okay. I Sorry. Sorry. I thought he just meant he was done with that exhibit. I will >> I will testify now then.
>> Okay. Mr. Lane, if you would raise your right hand. We'll have you sworn.
>> Swear or refer the testimony you're about to give shall be the whole truth and nothing but the truth.
>> I do.
>> Okay. Go ahead.
>> Thank you, your honor. First, with respect to exhibits B and C, which are the bill of costs I submitted, I would prefer those for admission.
>> Okay. Mr. Schaefer, >> I I actually admitted those already, your honor.
>> We had not admitted them. She had referenced them but they were not uh and question but they were not they were not admitted.
>> Okay. Well I I with the understanding I get across I don't agree to the uh uh being relevant but as for a reference point I have no objection.
>> Okay then uh defendants exhibit B and C will be admitted.
>> Thank you. I will also take this opportunity to testify under oath that the billings uh relate reflected on exhibits B and C, the bill of costs related to the show cause are accurate and correct with the one exception and a correction I would like to make on the record that occurs on page three of exhibit B with related uh with reference to this line item that I'm highlighting on the screen from March 21st of 23.
This was errone part of this was erroneously included because when I ordered transcripts in this matter from Miss Cox, I ordered a transcript from a hearing that occurred in March of 2022 and then just transfer that in inadvertently onto this bill of costs.
So the way that the transcript costs uh were charged to me is as follows. The March 8th 22 transcript was 74 pages long and Miss Cox charged me $25 a page.
She did not charge me for the March 7th, 2023 transcript. And she did charge $25 a page for the March 28th, 2023 transcript, which was 119 pages. So the total pages that should should be charged for were just the 119 on fill of costs. 205 a page is $243.95.
So we would reduce our request for costs today. Uh that means the total it's reduced by $151.70, your honor.
>> Okay.
>> All right. I'd like to testify a bit to my background in relation to the fee that I charge. I graduated magnaum laad from Thomas Kouli Law School with a 3.9 gradepoint average. After I graduated, I became an adjunct professor for Kulie in a variety of subjects. Moot court uh scholarly writing. I taught advanced writing for I believe six or seven years maybe more. Um, after I graduated, I was a research attorney starting my career out as after law school for the Michigan Court of Appeals. I then became a staff attorney at the Court of Appeals for Judge Steven Burello. After my tenure there, I became a staff attorney for Justice Michael F. Kavanaaugh at the Michigan Supreme Court and ended up as a senior staff attorney in that office. in my positions at the Court of Appeals and the Michigan Supreme Court in one in many of my duties. One of them was writing uh draft opinions for both the Court of Appeals and the Michigan Supreme Court. I then opened my own law firm in 2007. Since that time, I've become a certified mediator by taking the 40-hour mediation course and eight hours of domestic violence training. I have received a family law certificate from the Institute of Continuing Legal Education which involved taking uh nine different seminars. Um I've been named by lawyers weekly as one of the top women lawyers in Michigan. I am currently in super lawyers and super lawyers names only about 5% of attorneys across the nation uh as super lawyers to include it in their publication. I practice I focus my practice 100% on family law. I do not take any other subject matter cases and the reason I do this is that it allows me to devote my entire attention to this one area of practice in order to gain the highest knowledge base possible which is important to me in serving my clients. I do more than practice family law. I study it regularly. I avail myself of continuing legal education on a very regular basis. I subscribe to the Institute of Continuing Legal Education's partnership program. I contribute materials to that program which are findable online if you are a member. I've written m variety of materials for ICLE and I've produced videos uh also for their publication on their website for training purposes of other attorneys. Every year I attend the 2-day annual family law institute and I frequently present at that institute as well as a speaker. When I present I generally spend about 20 to 40 hours preparing the written materials and the oral presentation. And I do that for zero compensation because it benefits not only the bar but also benefits me and that I hone my knowledge in different family law related subject areas quite significantly. I have presented on the area of privilege, child support, evidence, property valuation as a recurring speaker in that subject. The fundamentals of custody which is one of the family law certificate courses as a recurring speaker on that parental alienation. I presented on advanced child support strategies. I've presented on marijuana in family law context, bankruptcy in family law context, and I've been on plenary panels with judges across the state of Michigan as well. Changing doicile is another topic matter. Besides presenting to the Family Law Institute, I've presented to the Referees Association of Michigan. I've presented at the Upper Michigan Legal Institute.
I've presented to the Michigan Judges Association, and I've been a presenter multiple times at the Family Law State Bar uh winter conference, as well as local bars and other local organizations. women's groups and the like. I currently serve on the Family Law Institute planning board with about 15 to 20 other uh family law attorneys throughout the state of Michigan. I served a three-year term, which is the top limit, on the Family Law Advisory Board for the Institute of Continuing Legal Education. I've also served on the Family Law Sections Court Rules Committee. I spearheaded a family law section committee on the effects of COVID on family law issues at the beginning of this pandemic. I authored the chapter property division which appears in ICLE's two volume book Michigan Family Law for their eth edition and their upcoming ninth edition. I've written articles for the family law journal which is distributed to family law practitioners who are members of the section. I've done additional writing for local bar associations and the like. I also handle family law appeals making me a more desirable um candidate for hiring for family law matters. I went and counted because I didn't know, but I've handled 42 appeals, mostly family law subject matters, uh, to the Michigan Court of Appeals and multiple um, applications for appeal to the Michigan Supreme Court as well. I've actually been qualified as an expert to and testified in an attorney fee hearing in a matter here in Ingam County. So, your honor, those are some of my qualifications, and I submit that this background that I outlined qualifies me to be in one of the top percentiles in terms of both ability and billing merit. the econ Michigan economics of law survey which I included as uh attached to my bill of costs and also can offer as exhibit D here today.
May I propose an offer as exhibit D the sections of the economic loss survey that pertain to me?
>> Okay, Mr. Schaefer, uh any response to exhibit D?
>> Is he?
>> Well, I I guess my first comment is a 2002 economic uh survey. Not how relevant it is. It's currently 3 years old and I understand that the uh case law or the appellet law does indicate that the court should review the economics but I'm not sure it's relevant if it's three years old. It's my only comment.
>> Okay. Main any response to that?
>> Yes. In the court of appeals case of which addressed this exact issue uh the court of appeals held that the survey is important. It should be referenced. It should need not be the only factor the court considers and it can even go up from uh the billings listed in the survey. The court recognized that it's only published once every 3 years.
That's just a fact. There is nothing else that I'm aware of at least that is published more regularly. And I think the age just mitigates in favor really of of upping a lawyer's fee. If all we have to refer to is the 2020 numbers, which is the case here, then that should just reflect on the fact that if somebody is asking for higher than an average or higher than a certain percentile, that's probably justified because of inflation purposes.
>> Mr. Schaefer, any response?
>> Well, that is nice speculation, but I guess your honor can do with it as it wishes.
>> Court will admit defendants exhibit D.
Obviously, uh, court reviews that repeatedly in cases not only pertaining to family law, but business law cases in which I have to decide fee disputes and, uh, it's regularly recognized by probably most attorneys in the state as the basis for determining the hourly rates, uh, for attorneys as it relates to fee disputes. So, the court will admit that.
>> Thank you. I would note that for an attorney with 20 years experience like myself, the 75th percentile listed in the 2020 version is $367 an hour, while $546 is the hourly rate for an attorney in the 95th percentile. an attorney practicing in the Lancing area, which of course I do, the 75 75th percentile rate is $345 an hour, and the 95th percentile rate is $450 an hour. And finally, the billing rate for an attorney practicing in family law is $300 in the 75th percentile and $400 in the 95th percentile. I would also state that as a general rule, I bill conservatively. I never bill for the time I spend laying awake at night thinking about worrying about and strategizing about the cases while I lose sleep. I don't charge a search charge for missing time with my family and other events and activities because of the demands of a case and so forth. Um my engagement agreement exhibit A also allows me to charge a higher rate for emergency work. And while I did in fact have to put down other work in this case to tend to urgent issues that arose, I have never invoked that higher fee that my contract says is warranted. I'm going to put up a portion of exhibit A, my fee agreement now. All right. And I would direct the court's attention to paragraph 17 with respect to email. And it essentially explains the way that our firm bills email, stating that a tenth of an hour is a minimum billing on any item, including individual emails. However, in our discretion, we can bill less than that minimum for short emails. But all emails pertaining to the client's case, including the firm's internal emails will be build. And that the firm may also group all emails sent and received within a specified amount of time and bill the same amount of time for each email. And the amount of time to bill per email may change from to billing cycle if we believe a change is warranted. So through many years of trial and error and practice in billing uh this is what we arrived at made the most sense for both the firm and the client in terms of email billing because what we were attempting to do there is limit a client's exposure because in a month where there are let's say 100 emails if we build the minimum of 0.1 for that that would be extraordinary amount that the client was paying so what we do is count them all up and build them in bulk at a much lower rate than that with respect to the emails build on my bill of costs I will note for comparison purposes that oh first of all I will testify your honor that I went through the emails and it was not a fun or uh fast exercise and I counted up the ones that were bill that were related to the show cause. So there were more emails than were reflected on my bill of costs and the full number of emails was reflected on the invoices that Dr. Tobaca received and I'm going to tell you what those numbers were. For instance, in November of 22 emails build to Dr. for tobacco were 50 and on my bill of costs I listed 30 because there were 20 that were not related to the show cause in December of 22 the number on the bill of costs I can't recall let me just check that really quickly 22 uh no emails were build on the bill of cost but I had um I think only three in December build to M Dr. Tobaca in January all of them the 42 are all related to the show cause and again these were not all emails from Dr. Dr. Tbaka to me or me to him or between us.
Uh there are emails that we bill for all emails as my fee agreement said. So with Mr. Schaefer, communication with Mr. Schaefer's assistant, communication with the judge's office, the clerk's office, court reporters, the mediator, subpoena related, for instance, council for Clint uh Calhoun County Sheriff's Office, everything that is related to the case.
In February of 2023, Dr. Tobacco was filled for 237 emails, but on the bill of cost, only 65 are listed because those were the 65 I determined related to the show cause. In March of 2023, he was build for 109 emails. Uh the bill of costs reflects 42 that were related to the show cause. In April of 23, I build him for 64 emails.
Only 28 of those are reflected in my bill of costs as related to the show cause. And for May of 2023, there were 102 emails build and only 25 listed on the bill of costs. While the show cause droned on, in June of 2023, there were 119 total emails. I had didn't even bother putting any on for the second bill of costs. Same for July where there were 95 emails in August where there were 236 emails. With respect to the work that I put in to the show cause hearing itself, I would just make a few comments. First of all, um there was a lot of preparation work. One of the critiques that Mr. Schaefer has of my bill of costs is that I I I guess I worked too hard or too long or too much.
Um which is an interesting observation, but in any event, it isn't true that I worked too much or too long or too hard on Dr. Tobaca's case. I put in this the work that was necessary to handle the matter at hand. For instance, I spent time because I required my client to provide me with the entire our family wizard history which is important to review before going into a hearing at which communications are going to be at issue and they were in this case that that was a total of 444 pages. We had multiple uh discovery responses from the Calhoun County Sheriff's Office which totaled hundreds of pages that I had to go through and digest. Dr. Dr. Tbaka actually saved um hours of attorney fees by doing the initial analysis of time sheets from Miss Tbaka's employer. So that fees for my time at that initial crack at that information were not incurred. But I estimate that would have added 10 10 to 20 hours probably to my time. There were 20 exhibits that I curated, prepared, and uh were ready for the hearing. I don't remember how many were admitted, but there were 20 that were curated and um submitted as potential exhibits. We also had three hearing dates in this matter. March 7th, March 28th, and May uh 12th. As for most cases, I prepared an opening argument. I prepared lengthy questions for the main witnesses in this case. I prepared questions for rebuttal. I prepared a closing argument. you know, in the context of doing all that, we're referencing page numbers of different things like transcripts, exhibit references, cross referencing, all sorts of things. A lot of work goes into that.
Um, your honor, having been in private practice, you're well aware of this.
With respect to the cost, I already talked about the transcript uh cost, but I will just mention too, there was a mediation cost. Mr. Schaefer commented that I didn't produce a receipt for that or something of that nature. I did have a receipt from Mr. Bundage. I paid that by credit card and Mr. Schaefer presumably paid the exact same amount that Mr. Bundage required both of us to pay which was 500 and then then he refunded me I believe it was $60 which is uh listed on. So the total mediation cost was 440. Let's see. Opposing council made in his objection an allegation which I found quite quite frankly a little bit unprofessional which occurs on page three of his objection. states as follows. It appears that after the ruling of the court, this is a prime example of padding the bill in order to bring the matter up to an area that defendant wants to take advantage of the formula that is set forth by the judge. Well, since my billing was contemporaneous, which it was, it is impossible for me to have padded my bill to take advantage of the court ruling. And I believe what Mr. Schaefer is referring to there is that this court only awarded half of the attorney fees uh because it determined that we didn't get the full relief we were requesting. So we wouldn't only get half the attorney fees. Well, I didn't know that until May 12th of 2023. So I couldn't have been prepatting my bill in anticipating such a ruling. So, I just wanted to dispel the specious claim that I in any way altered or increased my fees in this matter from what I had already recorded and already charged to my client. Your honor, unless the court would like me to address any other particular item, I believe that that concludes my testimony.
>> Okay. Thank you. Just to Yeah, if you could just to clarify on the uh the correction you made as it related to the transcript. You said it's less 15170.
Is that off the 1/2 or off the total? I wonder >> that would that's a question that would be the entire bill by 151. So >> okay half >> be half of that. That would be okay.
That's what I when I went through this I couldn't tell based upon what you testified to.
>> All right.
>> Okay. Uh Mr. Schaefer any cross-examination? Miss Elaine, uh, in relation to your exhibit to the economic >> Oh, yes. Go ahead.
>> Excuse me.
>> You cut out, but I heard you now. Go ahead, please. Sorry.
>> Okay. All right. Very good. On the u the economic and surveys. The community that you are practicing in on this particular matter is Calhoun County, Battle Creek.
Correct.
>> Well, I practice in Lancing, Michigan, but this case is in Calhoun.
>> Yes. Correct. And the Battle Creek area on table six of your exhibit D indicates that the uh medium range is 2 uh 80 275 mean 30075 and 318 95 percentile. Is that correct?
>> Um can you point me to where I I didn't look at C I didn't look at that because I don't practice there and the way that the state bar survey >> Okay. No, I you're just answering questions now. You can argue later. Uh on table six of your exhibit D. Yes.
>> Okay. The Battle Creek area. Will you read across what the percentiles are, please?
>> For table six, Battle Creek, uh, 13 attorneys responded and the rate for the 95th percentile is 318 and the 75th is 300.
>> And the mean is 275 and the median is 280. Correct.
>> That's that's what the survey reflects.
Yes.
In relation to table seven of exhibit D under family law, uh the 25th percentile is 200, the median is 250, the mean is two 68, the 75th is 300, and the 95th is 400. Is that correct?
>> That's what the table says. Yes.
>> Thank you. So you have been uh practicing uh in private practice since you said ' 07.
>> That's correct.
>> Okay. 07. So you've been at this for 16 years. Is that correct?
>> I believe so.
>> Okay. Are you presenting anything under the factors of reputation and ability other than your own?
>> I'm sorry. You cut out at the end.
>> Okay.
There are you're familiar then with all of your uh teacher and research that there under uh the case law there's about eight factors that need to be determined. Is that correct?
>> There are.
>> Okay. And you told us about your experience. Uh are you going to present anything about your reputation or your ability other than your your uh self testimony in that regard?
>> Well, I believe Dr. Dr. Tbaka testified that he hired me because of um a referral by another client of mine who had I had done good work for so that so that she believed me.
>> Well, that's I I guess my question is are you going to present any other evidence other than what you presented and your testimony concerning reputation and ability?
>> I am not. No.
>> Okay. Number two, uh the difficulty of the case. Do you consider a as a difficult uh legal matter? I think that show causes have elements to them that are not present in like a regular custody motion or child support case.
Yes. It involves potential uh jail time fuse me that make it difficult a difficult case. It's not a case. It's a he said she said whether the order has been followed. Is that not true?
>> I guess the term difficult is somewhat subjective Mr. Schaefer.
>> Okay. Um, and the third factor is uh the amount in question and the results obtained. Uh, we're not talking a whole lot of financial issues on the show cause and the results. You got approximately 16 of what you were asking for. Is that not true?
>> Again, you're breaking up a little bit.
So, I heard a lot of your question but not all of it.
>> All right, I'll repeat it. uh in relation to that factor three of the amount in question number one we're not talking about a lot of monetary amount in this particular matter uh but the results obtained is that you only received about 16% of the makeup time that you had pled in this particular matter is that not true >> it is and I believe that the court >> Okay attorney >> just a minute I got more questions uh and the expenses that you incurred are on your bill of cost. Is that correct?
>> Yes.
>> Okay. The nature and length of professional relationship with the client. Is this the first time that you had represent Dr. Tobaca?
>> Yes.
>> This is the only case that you represented him. Uh yes.
>> Any other matter?
>> Correct.
>> Okay. You did you uh turn down other because of this case?
>> Yes.
>> What what did you turn down? Well, I'm not going to give names of potential clients, but >> Well, give me >> I'm sorry.
>> Give me an example or a generality of what you turned down.
>> I will. Uh when a when a case takes a lot of my time, I turn down cases. I do it routinely and I did it throughout this case and I'm still doing it with this case quite frankly.
>> Were there any extreme uh time limits imposed by the client or the circumstance?
>> Uh yes. As a matter of fact, when you didn't submit your exhibits two two different times following the court scheduling order, that caused me to have to scramble to deal with late exhibit preparation and preparation with my client pertaining to late exhibits.
>> Okay. If I suggest to you that the number of emails that you are indicating that you have had with your client and specifically those involved in the show cause as being extraordinary in a case of a show cause uh and I'm suggesting it's extraordinary. Do you agree with me or not?
>> I do not.
>> Okay. in these uh three hearings that we had uh you had pretty much taken up at least one and a half to almost two of the first hearings by the testimony of your own client. Do you recall that?
>> Not specifically. I have to review the transcript.
>> All right. Did your client participate in the mediation in good faith trying to resolve this particular matter?
>> He absolutely did. Contrary to the statement you made your objection. on your exhibit B as a boy on February 25, you had 65 emails in apparently the month of February in relation to the show cause and that's what your testimony is. Correct.
>> And that's built on February 28th. But yes, >> and that covers as I interpret your billing covers the month of February. Is that correct?
>> Yes. And could you tell me to whom those 65 emails were sent or rece or from whom they were received?
>> Not as we sit here today, but I can testify that they were all related to the show cause because when I prepared my billing co of costs, I went back through all of those emails.
>> That would be an average of over two a day. Correct.
>> Well, maybe I got 20 in one day as a back and forth. I mean it doesn't >> Was your Was your client overly in regard to attention of uh email?
>> Overly what you're cutting out >> overly needy. Some clients uh are more than others. Do you agree with me on that?
>> I agree. Some clients >> Okay. Some some need handholding on a daily basis, some not. Correct.
>> Correct. Yes.
>> And how would you classify Dr. Baka in that regard?
>> Moderate. And uh so he would on a regular base if not daily uh or multiply multiple times someday email you with question. Is that correct?
>> Not daily. It hasn't been daily.
>> Well then there must have been a lot of days there were a lot of them if you got 65 in one month.
>> Well as I testified it's not just communications between my client and I but communications by me and anyone else who I'm communicating with about the case including your office.
>> Okay. And uh how many emails did you build that you communicated with my office uh in February?
>> I'd have to go back and look.
>> On March 6th of 2023, you build 3.8 hours ofation for the hearing.
>> Yes.
>> Do you have can you give me some detail as to what you did in 3.8 hours on that particular day?
>> I object to this question, your honor, on the basis of work product privilege.
>> Okay. I I'm content your honor. I I it seems like an amount of time of show cause. So if if there's some legitimate reason that to up 3.8 hours, I think we're >> well I think it does obviously go into again issues now privilege but work product etc. So if she stated that that all went into the preparation for the show cause is going to accept that testimony.
>> Thank you. Uh the day after that you also spent 2.2 hours in preparation for show. Is that correct?
>> Yes. And looking back at that it seems low.
>> Seems low. Good.
>> Yes. Does >> March 28th how long hearing that you build for versus the debriefing of your client?
>> I'd have to go back and look at the start and finish time of on the transcript. I don't know that offhand.
And there's also prep for. So there was prep, appearance, and debriefing.
>> Okay. on your exhibit C, you have um build an additional $1,200 for I guess let me take that back. You build four times for September activity uh once in August and three in that billing. Is that correct?
>> That's true. And it's still going on, Mr. Schaefer, because you have objected.
>> Okay. Uh just answer the question, please. You uh include any of the other billings that had to do with other entry of orders that were the show cause?
Absolutely not.
>> I didn't hear that. Mr. Schaefer, you said nothing else. Thank you, Mr. Lane.
Any additional uh testimony?
>> Uh just a few points based on what I was asked, your honor. With respect to table six, I would note that uh the table's title is reported attorney hourly billing rates by office location. And when Mr. Mr. Schaefer asked me to read the Battle Creek area line item, but I don't live in Battle Creek or my office is not in Battle Creek rather. With regard to the results of this case, I would just comment what this court is already aware of, I believe, which is that no less work needed to go into the show cause proceeding to get a result, right? So the same amount of work would have to go in and the court determines the result. Um, so there was no way to like not do as much work because of the result we got, if that makes sense. And I would also further comment that with regard to the difficulty of the case, it's still ongoing because Mr. Schaefer has again objected to the order.
>> This is more argument than than factual responsibility.
>> I guess let me just say that these fees aren't even reflective of the total fees that Dr. Tobaca continues to incur.
Thank you.
>> Okay. Thank you, Mr. Lane. I I just clarified and basically exhibit B and C are cumulative. Is that correct?
>> That's correct. So, okay. Yes.
>> I just want to make sure that I thought it was because you have the subtotal from first billing and then the other total. I just want to make I just want to clarify that so there's no dispute.
>> Yes.
>> Okay. Thank you. Anything else, Mr. Schaefer?
>> Nothing for >> Okay. Thank you. Any additional witnesses, Mr. Elaine?
>> No additional witnesses, sir.
>> Okay. Mr. Schaefer, any witnesses?
>> No witnesses, John.
>> Okay. So, uh Mr. Lane, you rest and Mr. Schaefer rest, correct?
>> That's correct.
>> Okay. Uh Mr. Lane on any closing arguments?
>> No, your honor.
>> Okay, Mr. Schaefer.
>> Uh, yes, your honor. We are opposing the uh the amount of fees being asked for this matter and there's a lot of factors in the case law that goes uh along with this. uh the burden is on the uh petitioner in this particular matter Miss Elaine to and her client to uh determine whatable attorney fees and it's uh the reasonable prevailing in the community and the community is uh Calhoun County is the community that uh the law is being practiced in and uh the the case also indicates that the surveys need to be taken into consideration and certainly that is much lower than at what is being charged in this particular matter. We're not in Lancing. Uh we're in Battle Creek and I don't think you get to take uh your higher rate and bring it here. The number of hours that were spent in build are enormous. uh from the standpoint of emails in all due respect I think needy client here that she is uh placating whatever she has to do to keep him happy but that is not a reasonable fee uh for uh compensation in relation to the judge's ruling. I think there are eight factors the case law indicate that the court needs and must take into consideration and must take into consideration all number one is the experience, reputation and ability of the lawyer. We have heard nothing on reputation. We have heard nothing on the ability other than the uh uh testimony of the lawyer. Experience uh that most of the is in the AC academia and uh as clerking that doesn't necessarily mean uh experience in trying cases. She's been a practicing trial lawyer apparently since ' 07. So we got six years which is I think middle of the road and not it certainly is not extreme people who have practice for 50 years some who have practiced uh business transaction not a complicated copyright action not a complicated PI case this is a show call order it's a he said she said facts to an order so it's not a difficult case number Three, the amount in question uh amount I think uh goes to the economic part there is not an economic part in this the results obtained and the results obtained from the motion that they filed is that they got about 16% of what they had asked for. So that is not a high mark on that factor. The in the expense is not substantial uh and they were listed. Number five, the natur uh nature and the professional relationship with the client is short. This is the only case she's had with him. So, it's not a long-standing client that she's representing. It's somebody new and this is the first case. Number six, the uh turning down of other employment. I we don't have specifics. It was a generality. I suppose that is true with all of us that that if you are going to devote uh an inorate amount of time on one client then you're not going to take other clients. But I I think this is a needy and she is taking advantage if you will of a needy client by uh placating to his emails and his uh need for attention and she bills for it which is fine. Uh but that's not a reasonable process to ask for the other side to uh reimburse that. Uh number seven uh the uh time limitations imposed by the clients. I don't think there were many at all. This was drawn out over a long period of time and a number of hearing.
And the number eight is whether it's a fixed fee or a contingent fee. And this was obviously a fixed fee. it the court needs to determine according to the case law the uh reasonable number of hours uh needed to expand to be expended for the work done on this particular I think they are inflated for whatever reason uh the amount of preparation time the amount of uh billings for emails the amount of billing for other things I think are not reasonable in this particular matter to be plugged in the long and the short of it I think uh your honor needs to determine what a reasonable amount of hours should be uh awarded and what the reasonable rate is.
I don't think that the $400 an hour rate is the customary rate in Calhoun County.
So I think is closer to $300 an hour and I think that rather than billing for some 50 hours and that's what it boils down to. If you've got uh $400 an hour and you come up with 20 grand, that's 50 hours of billing. I think that's uh probably 15 hours or more over bill. So I'm asking the court to figure out a reasonable amount of hours and a miso amount of rate that's customary in this.
And so I would ask the court to do that.
Thank you.
>> Thank you, Mr. Lane. You didn't make a closing, but I'll let you uh >> respond >> address the response. Yes.
>> I appreciate that. Well, I I note that Schaefer gave a lot of his own thoughts and feelings on the matter, but he presented no evidence or testimony with respect to his claim that my fees were unreasonable uh or unnecessary in any regard. He presented no testimony, nor was there any evidence that Dr. Tobaca is needy, that I'm taking advantage of him, that I'm placating him, or that I inflated my bill. If he wanted to prove those things to this court, he should have brought an expert to say so. with regard to where I sit in my geographic area. He stated that the case law says that it is what is reasonable in the prevailing community. He didn't cite any case law, but what Victilio says is that the attorney fee is determined on what is reasonable based on all of the circumstances and all of the factors. Uh the survey is can be considered.
Everything else that is presented to the court must be considered. The geographic area as reflected in the state bar survey is the one that I'm in and that's the one they reported fees in and that's the one I've never left to this very moment. Never left the Lancing area to handle this case. I believe that the experience factor is shown by what I recited in my testimony and also what I submitted in my statement of reasonableness and necessity the cases that I've handled which were over hundreds. Yeah. So that that's what I'd say. I would say that my my fee is on to the survey which is out ofd and should probably be more. My fee is in all the categories but one less than or in between the 75 and the 95 percentile which I probably merit easily the 95th percentile and the only one that equal the 95 is family law and I believe that I warrant that because I specialize in family law that's all I do that's all I've done in my practice and I am frequently called upon to share my knowledge in that subject matter. Thank you your honor. I would ask that you award the fees as stated. other than that minor transfer fee that we >> Thank you. Thank you. In this case, the court has heard the testimony and the court as Mr. Lane points out that the only testimony as it relates to the fee issues really were her testimony and uh I guess ancillary to that was the testimony of Mr. Tobaca where he confirmed that the co the fees and the costs reflected in exhibits B and C were in fact paid by him and reflected the work for the show cause. I'll refer to that as the parenting time, the show cause hearing hearings because we did have three. So, the court would uh reference that he did confirm that. The court will note that attorney fees are uh awarded pursuant to MCL 52552.13 PNS 1 as well as Michigan court rule 3.206 PNS D. Michigan follows the American rule which provides that attorney fees are not recoverable unless expressly allowed by statute court rule common law exception or conduct and that is uh basically the court would note the Hanowway case at 208 mishap 278 1995 case where the party is is entitled to attorney fees where they're forced to incur as a result of the other person's unreasonable conduct. The court is required to have a hearing which we've had today and determine if the attorney fees incurred due to the misconduct of the other party uh are relevant if you would or related to that there's a connection between the fees and the conduct and are the fees reasonable and I would cite to read versus read at 265 mishap 31 2005 case when the court uh looks at whether the fees were incurred uh as a result of the other party's conduct then the court has to engage in the examination as Mr. Schaefer states well actually the nine factors as contained under Smith versus Cowry at 481 Mish 519 at 2008 case and I guess it's Peru versus American uh service auto association at 499 mish 269 at 2016. Looking at those factors, the court has to look at the reasonable hourly rate charged in that particular locality. The court as stated when uh exhibit D was admitted in this matter, the court looks at the 2002 economics of law practice attorney income and billing rate summary report provided by the state bar of Michigan. That report uh is conducted every three years. And so um maybe unfortunately for miscellane is that as we know there's we're in a of inflation. So it's likely that those rates could be higher than what they were in 2020. I'm not going to ascribe that. I'm just saying that uh that is what the court considers as to the reasonleness of those rates because in 2020 it would probably be that those rates were extremely reasonable and as we move away from that and because of the inflation that we've had and uh the court notes from uh again other cases in which uh attorneys have been involved that obviously fees have increased in the three years since this report came out. So, but the court's note in looking at the uh table six reported attorneyly billing rates by office locality, it doesn't state in there by the locality of where the case is being heard. And especially as pointed out by Miss Elaine, everything she's done has been in Ingam County. And I guess that's the uh benefit now of pandemic and proceedings in this matter is that you don't have to go into a different city, etc. But the court does note in doing that that if we look at family law under that uh or in the locality that uh again looking at uh Ingam County that under the 75 percentile it's $345 per hour up to the 95 percentile of $450 per hour. Then if we go to table seven, the hourly billing rates by field of practice, we look at family law and in the family law that the 75 percentile is at $300 an hour and the 95 percentile is at $400 per hour. Court did admit the uh exhibit A, which is the uh guess you say the uh contract for legal services. It does spell out how Miss Elaine charges in this particular matter and it specifically and I'll address that in a little bit as we talk about the emails because under paragraph 17 of the uh contract it does state that those can be grouped and build at one time per month.
Both um Mr. Tbaka and Miss Elaine have testified that in fact the emails that have been charged in fact pertain only to the show cause proceeding. Mr. Elaine went back with again substantial amount of review, if you would, on her part to review the emails, I guess, anticipating that that issue would come up. And she had testified that in November of 2022, there were 50 emails with Mr. Debbaca, only 30 were included. In December of 2022, there were only three included.
that in January of uh 20 23 there were 42 emails that were included. In February of 2023 there were 237 only 65 of which were included for this action. In March 2023 there were 109 only 42 of which were included. In April of 2023 there were 64 only 28 of which were included. in May of 2023 102 only if 25 of which were included and then she shows um in June 119 none of which were included July 95 none of which were included and 236 in August none of which were included in the billings obviously if we look at that we have approx we have in excess of 400 emails that were not even included in the billings in this particular matter the court looks at that as to the issue of reasonleness in this particular case when a party does in fact leave out and not charge for those particular amounts. Court does find that based upon the uh survey the economics law uh that the hourly rate charged by miscellane $400 per hour is reasonable in this particular matter.
When we look at the hours charged in this particular matter as reflected in uh defendants exhibit B and C, Mr. Schaefer has in fact uh called out various charges. But uh again as we look at time spent often times there is some subjectivity to it. But when I reviewed this and I looked at the uh hours and I looked at uh for what the uh I guess you say different description of uh again the u work that was performed. The court cannot find that there were an unreasonable number of hours expended. Uh court would note that Mr. Schaefer has not come forward with an expert to identify that in fact uh a number of those hours were unreasonable.
And again uh Mr. Schaefer does bring up the fact that as he states and I'll get into this fact in factor six as to the difficulty of the case. He brings up, well, it was a show cause. It was not difficult. But I will state that as the court reviewed my notes in preparation for my finding. The court did find that this was not a very simple, easy, straightforward case. The court had to go through voluminous amount of documents as it relates to uh the plaintiff's work schedule. Correlate that to the missed uh parenting time and go over again that the court did find that this case presented as a much more difficult case than a straightforward denial of parenting time on let's say a particular weekend or a holiday or something of that nature due to the correlation and the issues involved. So maybe Miss Elaine and myself were both on the same page with that that I found it to be more difficult than uh would be a straightforward uh show cause proceeding. So when I get back to that uh we'll look at the fact factor the way I have them numbered is of course first the reasonable hour rate charge in the locality I've addressed. Two the reasonable number of hours expended and the difficulty of issues. Number three would representation preclude other other employment by attorney. Mr. El had testified that yes, as a result of the attention to this case, she's had to again uh to not take other particular cases. She were procluded from other employment. Number four, the amount involved in the results obtained uh in this particular case as preparing the case. Again, that's that's in the discretion up to the uh determination of the court and the parties cannot again uh I guess you'd say cannot direct, if you would, the results obtained. And uh there's a lot of reasons that different results are obtained and again there were in this particular case and the court uh found that uh Mr. Tobacco was not entitled to all of the uh hours that he had done and for various reasons and those are included in the order in this particular matter but that is not uh something that is uh I guess you'd say ascribed to either of the parties nor their attorneys in the particular matter but to the court and the court would note that again the results obtained is although it was not everything Mr. Tbaka wanted it was there was a finding that there had been a denial of the parenting time and the court uh ascribed I think it was this is I totally wrong I think it was like 39.5 hours is in the back of my memory but I don't know specifically but I think that's what it was the next factor is the time limitations caused by the client in the case uh again the client has very little input into this other than the emails and that uh the emails would dictate the time limitations in this matter. But uh the time limitations, as each attorney knows, are governed by the the type of the case, the difficulty of the case, the evidence, and all of those other factors that fa fit into the case. And uh as I stated the court finds that uh there was substantial time limitations in this matter based upon the exhibits based upon the discovery because again it required substantial amount of documents from the Kell County Sheriff's Department required correlation of those to the uh missed times and that the court does look at those particular factors in this matter. court does look at the difficulty of the case and as I've stated that already length of the relationship with the client this is the only time that she has represented Mr. Debbaca uh so the court's taking all of that into cons consideration the next issue that u the court does take issue with is um Mr. Schaefer's characterization of Miss Elaine's reputation, the next factor's experience, reputation, and ability of the attorney. Miss Elaine had went through all of that. She had graduated magnum kum laad. She was an adjective professor at Kulie Law School. She worked as a research attorney for the court of appeals and then a staff attorney, then gone to staff attorney position with the Michigan Supreme Court and working for Judge Kavanaaugh. I would state uh as all attorneys know you you don't get those positions just because you're a so- so average run-of-the-mill attorney that in fact that's a high standard. The court would note as well she's has other credentials as well but she is listed as a top woman's lawyer uh that she is listed as a super lawyer in this matter that um she has substantial amount of uh involvement with institute of continuing legal education writing for them providing videos she has provided work for the family law institute she was a presenter in many subjects as she states that she's a presenter at the Michigan judges association that she had been on the uh advisory board for ICL, she'd been on the planning board for a family law institute, that she had authored the property division section of the uh booklet and uh that she has in fact handled 42 appeals of family related matters that she has also as she stated that she's been qualified as an expert in an attorney fee case in Ingam County.
So the court's taking all that into consideration and does find that she is very aly qualified and based upon those credentials does have a substantial experience and reputation that the court is taking into consideration. The last issue is whether it's a fixed or contingency.
Obviously that's not applicable and it's an hourly rate in this matter. When the court does take all of that into consideration, the court does believe that the bill of cost as provided in exhibits B and C is reasonable and as adjusted by the the credit for transcript that the amount that would be owing do and owing by the plaintiff would be the sum of 10,000 51820 when I deduct that particular amount.
With that, the court will so order that that would be the end of the attorney fees owed by the plaintiff. With that, I'll ask Miss Elaine, is there anything else you believe the court has failed to address or needs to address before I conclude?
>> No. Thank you, your honor.
>> Okay, Mr. Schaefer.
>> I don't believe so, your honor.
>> Okay. Thank you, Mr. Lane. You can prepare the appropriate order. submit those to the court.
>> Your honor, actually there is something.
How How long does this have to pay the fees?
>> That's all you had ruled on.
>> I Yeah, I I won't I won't rule on that.
I'm ruling on the amount and the fees.
If that became an issue, then it would always be subject to a review by the court at that
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