GOOD MORNING FLINT!
By Terry Bankert
12/28/07
http://attorneybankert.com/
Posted to Flint Talk
and Terry Ray Bankert P.C.
http://terrybankert.blogspot.com/
This the substance of a Michigan Court of Appeals case modified for media presentation. Do not rely on this without consulting the original document.http://www.michbar.org/e-journal/121807.html#6 -trb
Issues:
A .Custody; Modification of a prior out-of-state custody order regarding the plaintiff-father’s two minor children; MCL 722.27;
B. Whether a change of circumstances was established; Vodvarka v. Grasmeyer; Remand for an evidentiary hearing on the children’s best interests; Heltzel v. Heltzel; Mason v. Simmons; C.
Court: Michigan Court of Appeals (Unpublished), 12/11/2007
Case Name: Yv. Y
Ingham Circuit Court, NO.07-000663-DC
e-Journal Number: 37869 State Bar of Michigan electronic Journal.
see:http://www.michbar.org/e-journal/121807.html#6
Judge(s): Per Curiam – Davis, Murphy, and Servitto
The Michigan Court of Appeals court reversed the Ingham County Circuit Court’s order dismissing the plaintiff-father’s complaint to modify a prior out-of-state custody order regarding his two minor children, concluding a change of circumstances was established and he was entitled to remand for an evidentiary hearing on the children’s best interests. Dad had cleaned himself up from a significant drug abuse history.
3RD PARTY CUSTODY PARENTING TIME
Defendant was plaintiff’s sister. In March 2001, a Minnesota family court entered an order finding the children were in need of protection or services, plaintiff requested the defendant take custody of them, and he would not be able to care for them in the foreseeable future due to chemical dependency issues. This would have been a child protectives services action that could have ended with a termination of his parental rights.
MOM DECEASED
The children’s mother was deceased. The order gave defendant legal and physical custody of the children, and provided plaintiff with the right of reasonable visitation under supervised conditions. Plaintiff relocated to Michigan to be closer to the children and to exercise visitation.
DAD TRIED TO CHANGE CUSTODY FROM SISTER.
He unsuccessfully filed a petition to change custody in the Michigan trial court in February 2006. In March 2007, he filed a new complaint for custody. The trial court found a failure to show proper cause or a change of circumstances. Plaintiff asserted he had overcome his chemical dependency problems, and the trial court apparently accepted this claim. Plaintiff’s chemical dependency was the main reason for the proceedings in Minnesota and his request for defendant to take custody of the children.
Y has issues See:http://www.michbar.org/e-journal/121807.html#6
Thus, his "actions, efforts, and success in overcoming the dependency and becoming clean and sober" constituted a "significant change of circumstances, satisfying the threshold under MCL 722.27(1)©)." Under the circumstances, plaintiff’s sobriety was relevant to the children’s best interests. Directing the trial court on remand to follow and apply Heltzel, the court also deemed it appropriate to reassign the case to a different judge to preserve the appearance of justice. Reversed and remanded for an evidentiary hearing on the children’s best interests before a different judge.
DAD 5 YEARS SOBER!
Plaintiff, who claimed that he was drug and alcohol free since his release from a chemical dependency program. he had been clean and sober for five years.
LOWER COURT SAID SISTER COULD KEEP THE CHILDREN.
The trial court issuing an order that there "is no material change in circumstance
nor proper cause to establish a reason to have an evidentiary hearing to decide the best interestsfactors after six (6) years of custody as a result of plaintiff’s abandonment of the children to defendant."
DAD TRIED TO ARGUE PARENTAL PRESUMPTION BUT COULD NOT.
The court also ruled that the parental presumption under MCL 722.25(1) did not
apply and was not implicated, given that plaintiff failed to show proper cause or a change of
circumstances.
DAD HAD CLEANED HIMSELF UP AND COULD HAVE PARENTING TIME
The trial court did award plaintiff unsupervised parenting time, commenting that "nobody appears to have any problems with his ability to provide visitation or care overnight."
HOW ARE LOWER COURT DECISIONS ANALYZED
Findings of fact in custody cases are reviewed under the great weight of the evidence
standard, discretionary decisions such as custody dispositions are reviewed for an abuse of
discretion, and questions of law are reviewed for clear legal error. MCL 722.28; Thompson v
Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004), quoting Phillips v Jordan, 241 Mich
App 17, 20; 614 NW2d 183 (2000).
LAW OF CHANGE IN CUSTODY
MCL 722.27 provides (1) If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following, AND ©) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . . The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the child. [Emphasis added.]
THE CHANGE MUST OCCUR AFTER THE ENTRY OF THE LAST ORDER
A change of circumstances is established by proving that "since the entry of the last
custody order, the conditions surrounding custody of the child, which have or could have a
significant effect on the child’s well-being, have materially changed." Vodvarka v Grasmeyer,
259 Mich App 499, 513; 675 NW2d 847 (2003) (emphasis in original). Something more than
normal life changes that occur during a child’s life must be shown. Id.
PREPONDERANCE OF THE EVIDENCE
Proper cause is shown by proving by a preponderance of the evidence that an appropriate ground for legal action to be taken by the trial court exists. Id. at 512.
PREPONDERANCE
Defenition. Evidence which ig greater in weight or more convincing than the evidence that is offered in opposition to it. Evidence that shows at a whole that the fact sough to be proved is more probable than not. (Blacks Law Dictionary 5th edition)
"The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well being." Id.
NO PREPONDERANCE NO HEARING
If proper cause or a change of circumstances is not established, the court is precluded from holding a child custody hearing to determine the child’s best interests. Id. at 508.
A PARENT CLEANING THEMSELVES UP IS ENOUGH.
To rule otherwise would permanently close the door to custody relative to parents who have earnestly straightened out their lives after earlier parental failures. Accordingly, plaintiff is entitled to an evidentiary hearing on the best interests of the
children.
A PARENTS FUNDAMENTAL LIBERTY INTERESTS
The comprehensive scheme set forth in the Child Custody Act permits
consideration of both the natural parent's fundamental liberty right to raise a child
and a child's need for stability in determining the ultimate issue of the child's best
interests. When the statutory presumption in favor of parental custody and the
presumption in favor of the established custodial environment conflict, due
process requires that the presumption remain in favor of custody with the parent
in the absence of a showing of parental unfitness. Heltzel, supra at 23-24, 27-28.
THE SISTER COULD HAVE REBUTTED THE PARENTAL PRESUMPTION
The best interests of the child are presumed to be served by granting custody to
the parent, and that presumption must be weighed heavily in favor of the parent.
To rebut the presumption, the third party must show by clear and convincing
evidence that the best interests of the child require maintaining the established
custodial environment. Id.
DAD GOT HIS HEARING ORDERED! Results unknown!
This article from
see http://www.michbar.org/e-journal/121807.html#6
CAP HEADLINES ATTRIBUTED TO Terry Bankert
Posted here by
Terry Bankert
http://attorneybankert.com/
Note that Y's counsel contacted me threatening a number of actions toward me affecting my free speech liberties. The case is public information. I am not a journalist as much as I welcome a fight I will give this appeasment replacing his name with "Y "to him. Why, cost benefit analysis and I do not know what happened at the final hearing. -trb 5/26/08
Friday, December 28, 2007
Sunday, December 23, 2007
Stopping Domestic Violence
GOOD MORNING FLINT AND USA!
BY Terry Bankert 12/22/07
http://attorneybankert.com/
Summary posted to Flint Talk
Origional post to
http://terrybankert.blogspot.com/
Christmas is a horrible time for households that experience domestic violence.
A lone event of violence is a battery. Domestic violence is not just one event it is a pattern of physical, sexual, emotional, and/or financial abuse with the intent and result of establishing and maintaining control over an intimate partner.[DVBB1998]
Domestic violence can impact proceedings in all of Michigan courts..In whatever context it occurs domestic violence presents the court with unique safety concerns.[DVBB1998]
These safety concerns for the litigants arise from the intimate relationship of the victim and the perpetrator.
*A domestic violence perpetrator typically has unlimited access to the victim..they live together or have regular contact romantically or by the exercise of parenting time...known are the dailey routines and there is ready access to information about the victim and this persons whereabouts...
*[this happens]..by the exercise of a pattern of physical, social, psychological, and to economic control over the partners..Many abusers who perceive a loss of control over their partners will resort to physical violence to regain it..., the courts intervention have increase the potential for violence.
*Domestic violence occurs in the privacy of the home when the only witnesses re under the control of the abuser..see generally [DVBB1998]
In Flint/ Genesee County extreme cases of domestic violence, including homicides, could be put under the microscope by a special new team that would dissect the county's worst cases of family violence. [FJ12/23/07]
The YWCA of Flint is pushing to form a domestic violence fatalities review team five years after a state law allowed for creation of the groups. [FJ12/23/07]
400.1511 Interagency domestic violence fatality review team.
http://www.legislature.mi.gov/(S(wuizve2nvddfryfjo1chfufe))/mileg.aspx?page=getObject&objectName=mcl-400-1511
Sec. 11.
(1) The state or a county may establish an interagency domestic violence fatality review team..... The purpose of a team is to learn how to prevent domestic violence homicides and suicides by improving the response of individuals and agencies to domestic violence.
(2) The fatality review teams may review fatal and near-fatal incidents of domestic violence, including suicides. The review of a domestic violence incident may include a review of events leading up to the domestic violence incident, available community resources, current laws and policies, actions taken by the agencies and individuals related to the incident and the parties, and any other information considered relevant by the team....
(4) A fatality review team established under this section shall include, but is not limited to, the following:
(a) A health care professional with training and experience in responding to domestic violence.
(b) A medical examiner.
©) A prosecuting attorney or a designated assistant prosecuting attorney.
(d) A representative of a domestic violence shelter that receives funding from the Michigan domestic violence prevention and treatment board.
(e) A law enforcement officer.
Boosters of idea said the need may be stronger in Genesee County than anywhere else in Michigan because the rate of violence against women here has been among the highest in the state.[FJ12/23/07]
"There needs to be a better, more organized and focused approach to domestic violence " learning what the system has in place and where the gaps are," said Karen Folks, chief executive officer of the YWCA.[FJ12/23/07]
Folks said she has applied for funding for the review team from the Community Foundation of Greater Flint, and she and county Prosecutor David Leyton agree that something more is needed. A decision on the grant is expected next year. [FJ12/23/07]
The YWCA Safehouse, a shelter for women and their children, is used by about 600 women every year, and an analysis of district court records by The Flint Journal four years ago showed domestic assault is among the most common crimes in the county. [FJ12/23/07]
The same analysis showed cases were routinely dismissed and rarely went to trial here. [FJ12/23/07]
Folks said in her proposal that the team will identify patterns and trends in domestic violence-related fatalities, and identify risk factors and shortcomings in the system to improve future responses. [FJ12/23/07]
Leyton said he hasn't studied statistics on domestic violence cases countywide but believes family violence has been steady throughout the county.[FJ12/23/07]
The county prosecutor handles the most serious cases of domestic violence in Genesee Circuit Court and cases brought by Michigan State Police and the county sheriff. [FJ12/23/07]
"A lot of times (the cases) are accompanied by another crime," Leyton said. "Most homicides are the result of drugs or domestic violence. It's too common." [FJ12/23/07]
A 2002 state law allowed for the creation of county or multi-county death review teams to dig deeper into domestic violence fatalities, near fatalities and other serious incidents. [FJ12/23/07]
Folks said teams have been set up in Oakland and Macomb counties nearby. [FJ12/23/07]
Each year, intimate partner homicide happen in increasing numbers in our community. Mothers, fathers and children lose daughters, sons, mothers and fathers in unimaginable tragedy. The Macomb County Domestic Violence Fatality Review Team (MCDVFRT) concluded that more can be done to prevent domestic violence homicides. Domestic violence will end when communities say it will end and when complex, uncoordinated systems make homicide prevention a systemic priority.[MCCDV2006] see
MCL 400.1511
Domestic violence is a pattern of power and control in which one intimate partner seeks to dominate and control the other.
Violence is only one tool that is used by the battering partner.
Other tools include using cultural privileges, emotional abuse, withholding money, using the children and using the legal system. Because the criminal and civil legal systems are designed to address one problem on a given day, the pattern of domestic violence is often difficult for one system to ascertain.
Determinations of patterns that demonstrate a high risk of lethality (increased violence, stalking, abuse of pets, threats to kill, and other factors) are counterintuitive to the way most criminal and civil matters are handled. So much of what occurs is geared toward gathering evidence toward prosecution of a particular crime rather than capturing the intricacies of power and control throughout a relationship that even successful arrest and prosecution does not guarantee victim safety.
Homicide prevention requires an integrated systemic interagency response to hold the assailant accountable and make it practical for the victim to become safe. [MCCDV2006]
The MCDVFRT determined that there are four key system responses that are critical to victim safety: Law enforcement response, criminal justice system response, civil justice response and the response of community and victims services. Although all of the recommendations of the MCDVFRT are important, the following recommendations were determined by the MCDVFRT to be of particular note:
Key law enforcement response recommendations:
• Provide ongoing, coordinated, uniform and county- wide trainings for law enforcement officers who are most often the first responders at a domestic violence scene.
• Development and implementation of countywide, uniform policies regarding investigation and pursuit of perpetrators who flee the scene of a domestic assault.
Key criminal Justice System recommendations:
• Train judges to recognize lethality indicators and respond accordingly in the issuance of personal protection orders.
• Work to end gaps between systems, including insuring that probation is aware of violations that have occurred in other jurisdictions.
Key Civil Justice System recommendations:
• End Macomb County’s practice of assigning domestic violence related felonies to the same judge that hears the divorce action to insure that criminal actions are not seen as a "bargaining chip" in divorce actions.
• Work toward the development of a supervised visitation center for the safety of children and families.
Key Community and Victim Services recommendations:
• Educate the community through public service campaigns on the seriousness of domestic violence particularly when the victim is attempting to leave the relationship.
• Increase domestic violence prevention education in the early years and beyond. [MCCDV2006]
It is our hope that this report will spur conversation and motivate this community to come together toward the common goal of building a safe community. We invite all community members to the table as the Macomb Community Domestic Violence Council works to implement these recommendations. [MCCDV2006]
The following are further recommendations after a review of the public records:
a) Train judges to recognize lethality indicators and respond accordingly in the issuance of a personal protection order.
b) Judges should not issue personal protection order renewals that become less specific over time, if the condition exists as it did at the time of the original petition or the existence of the personal protection order itself is the cause of the cessation of violence. Judges should enter subsequent orders that reflect the original level of threat.
c) Insure that Probation and/or the district court issuing a no contact bond is notified of personal protection order violations.
d) Train District Judges and Magistrates to recognize lethality in setting bond conditions.
e) Insure that domestic violence bond conditions are issued pursuant to MCL 756.6(b); MCL 764.15(e). Bond conditions that comply with this statute are entered in LEIN and convey a warrant-less arrest authority to law enforcement.
f) Insure that the court has a mechanism to enter bond conditions ordered pursuant MCL 756.6(b); MCL 764.15(e) into LEIN.
g) Notify prosecution of personal protection order violations and insure that the Prosecutor has ability to call witnesses.
h) Insure that Probation is aware of violations that have occurred in other courts, create an instant communication system between district court and circuit court/probation/batterer intervention.
I) Judges should strongly consider ordering convicted abusers only to batterer intervention programs that meet state standards and insure that court-sanctioned batterer intervention programs have a method of communicating with probation and the court system.
j) Educate probation on the difference between batterer intervention and anger management.
k) Keep domestic violence cases in district court to reduce the chance that it may become a "bargaining chip" in a family court custody/divorce proceeding.
l) Prosecutors should review the charge to determine if the underlying offense supports a higher charge. For example, where a victim is strangled or sexually assaulted, charge those crimes in addition to domestic violence.
m) Train Prosecutors and probation officers on domestic violence, particularly in recognition of lethality indicators.
n) Train Prosecutors to request sentencing in lieu of jail time, to accredited batterer intervention programs.
o) Train Prosecutors on the procedure for admission of other bad acts (404)(b), the effects of the confrontation clause and effective jury voir dire.
p) Issue witness, and particularly victim, subpoenas at least three days prior to a hearing date.
q) The Prosecutor’s office should continue the no drop policy regarding domestic violence cases. Whenever possible, prosecutors or victim services should call domestic violence victims before court date to assure attendance and alleviate their fears. The no drop/mandatory prosecution policy should be communicated to the police and courts. [MCCDV2006]
Recommendations for the civil legal system are as follows:
a) Train for judges, prosecutors and the Friend of the Court on lethality/danger for domestic violence. New judges, prosecutors and the Friend of the Court employees should be trained not just in the dynamics of domestic violence and lethality assessment but as to the importance of cross systems integration to maximize safety as well as how a survivor experiences disparate systems.
b) Involve community in the development of a supervised visitation and exchange center staffed by professionals trained in assessing dangerousness, lethality and domestic violence.
c) Develop and train a pro bono panel and work toward funding a highly trained legal aid program for indigent domestic violence survivors. Work to include the Macomb County Bar Association and Young Lawyers and provide free training in exchange for pro bono commitment.
d) Recruit representatives from the Friend of the Court and Child Protective Services to become part of Macomb County Coordinated Community Response. Create a working group to address systemic gaps between Family Court and Child Protective Services.
e) Macomb County is the only county statewide that defines "family court" as one judge determining both the criminal and civil issues within one family. All other jurisdictions comply with the definition of MCL 600.102, which defines family court as one judge hearing the divorce and probate action (child protective services case). Because Prosecutors represent the interests of the State of Michigan and a prosecution has significant impact on the Defendant and community interests, involvement of a criminal proceeding concurrent with a family matter provides an appearance of impropriety. The concurrent prosecution of a criminal offense and a divorce proceeding encourages the negotiation of criminal offenses to resolve the family matter, shifting emphasis from crime and punishment and relegating offenses to a family sphere. It is the recommendation of this team that district court judges handle misdemeanor domestic violence cases, and felony actions be assigned to a different circuit court judge than the family court judge handling a pending custody or divorce action.
f) Provide judges, magistrates, referees and probation officers training on the difference between anger management and Batterer’s intervention. Provide probation with a list of Batterer Intervention Programs that meet
state standards.
g) Provide education for civil attorneys on warning signs and safety planning and differences between domestic violence and highly contentious divorces.
h) Provide training for Child Protective Services on the dynamics of domestic violence to insure that the non-offending parent is not being charged with controlling the behavior of the batterer.
I) Create and distribute for use by the Friend of the Court and Family Court a questionnaire to identify lethality based on the FBI’s identified risk factors.
j) Create and distribute model parenting time orders to maximize victim safety for cases involving domestic violence. [MCCDV2006]
"This is an epidemic social ill," she said. What's being talked about are the type of "discussions we have not had to this point" in this county. [FJ12/23/07]
Folks said she expects an answer on her proposal early in 2008 and said the proposed team would be structured like the county's Child Death Review Team, which reviews individual cases of childhood fatalities, looking for trends, patterns, and needed changes. [FJ12/23/07]
The team would include representatives of law enforcement, prosecutors and domestic violence service providers. [FJ12/23/07]
In Oakland County, the team has operated since 2002, according to Lisa Gorcyca, who heads the team. [FJ12/23/07]
"When we review a fatality we learn about (whether) there was prior abuse, had they been in the criminal justice system, and if they had, we make sure the system worked for these people," Gorcyca said. "We look for areas the system could improve on." [FJ12/23/07]
Posted here by
Terry Bankert
12/23/07
http://attorneybankert.com/
-CITED-
[FJ12/23/07]
Tackling domestic violence
Effort would form new review team
GENESEE COUNTY
THE FLINT JOURNAL FIRST EDITIONSunday, December 23, 2007
http://www.mlive.com/news/flintjournal/index.ssf?/base/news-48/1198389011225400.xml&coll=5
-
cite
[MCCDV2006]
Macomb County Domestic Violence Fatality Review Team 2006 Report
FOR MORE INFORMATION REGARDING THE
MACOMB COUNTY FATALITY REVIEW TEAM,
PLEASE FEEL FREE TO CONTACT:
HONORABLE JOSEPH OSTER
DISTRICT JUDGE, 40TH JUDICIAL DISTRICT COURT
22701 JEFFERSON AVENUE
SAINT CLAIR SHORES, MICHIGAN
[DVBB1998]
Domestic Violence Benchbook, Michigan Judicial Institute 1998
BY Terry Bankert 12/22/07
http://attorneybankert.com/
Summary posted to Flint Talk
Origional post to
http://terrybankert.blogspot.com/
Christmas is a horrible time for households that experience domestic violence.
A lone event of violence is a battery. Domestic violence is not just one event it is a pattern of physical, sexual, emotional, and/or financial abuse with the intent and result of establishing and maintaining control over an intimate partner.[DVBB1998]
Domestic violence can impact proceedings in all of Michigan courts..In whatever context it occurs domestic violence presents the court with unique safety concerns.[DVBB1998]
These safety concerns for the litigants arise from the intimate relationship of the victim and the perpetrator.
*A domestic violence perpetrator typically has unlimited access to the victim..they live together or have regular contact romantically or by the exercise of parenting time...known are the dailey routines and there is ready access to information about the victim and this persons whereabouts...
*[this happens]..by the exercise of a pattern of physical, social, psychological, and to economic control over the partners..Many abusers who perceive a loss of control over their partners will resort to physical violence to regain it..., the courts intervention have increase the potential for violence.
*Domestic violence occurs in the privacy of the home when the only witnesses re under the control of the abuser..see generally [DVBB1998]
In Flint/ Genesee County extreme cases of domestic violence, including homicides, could be put under the microscope by a special new team that would dissect the county's worst cases of family violence. [FJ12/23/07]
The YWCA of Flint is pushing to form a domestic violence fatalities review team five years after a state law allowed for creation of the groups. [FJ12/23/07]
400.1511 Interagency domestic violence fatality review team.
http://www.legislature.mi.gov/(S(wuizve2nvddfryfjo1chfufe))/mileg.aspx?page=getObject&objectName=mcl-400-1511
Sec. 11.
(1) The state or a county may establish an interagency domestic violence fatality review team..... The purpose of a team is to learn how to prevent domestic violence homicides and suicides by improving the response of individuals and agencies to domestic violence.
(2) The fatality review teams may review fatal and near-fatal incidents of domestic violence, including suicides. The review of a domestic violence incident may include a review of events leading up to the domestic violence incident, available community resources, current laws and policies, actions taken by the agencies and individuals related to the incident and the parties, and any other information considered relevant by the team....
(4) A fatality review team established under this section shall include, but is not limited to, the following:
(a) A health care professional with training and experience in responding to domestic violence.
(b) A medical examiner.
©) A prosecuting attorney or a designated assistant prosecuting attorney.
(d) A representative of a domestic violence shelter that receives funding from the Michigan domestic violence prevention and treatment board.
(e) A law enforcement officer.
Boosters of idea said the need may be stronger in Genesee County than anywhere else in Michigan because the rate of violence against women here has been among the highest in the state.[FJ12/23/07]
"There needs to be a better, more organized and focused approach to domestic violence " learning what the system has in place and where the gaps are," said Karen Folks, chief executive officer of the YWCA.[FJ12/23/07]
Folks said she has applied for funding for the review team from the Community Foundation of Greater Flint, and she and county Prosecutor David Leyton agree that something more is needed. A decision on the grant is expected next year. [FJ12/23/07]
The YWCA Safehouse, a shelter for women and their children, is used by about 600 women every year, and an analysis of district court records by The Flint Journal four years ago showed domestic assault is among the most common crimes in the county. [FJ12/23/07]
The same analysis showed cases were routinely dismissed and rarely went to trial here. [FJ12/23/07]
Folks said in her proposal that the team will identify patterns and trends in domestic violence-related fatalities, and identify risk factors and shortcomings in the system to improve future responses. [FJ12/23/07]
Leyton said he hasn't studied statistics on domestic violence cases countywide but believes family violence has been steady throughout the county.[FJ12/23/07]
The county prosecutor handles the most serious cases of domestic violence in Genesee Circuit Court and cases brought by Michigan State Police and the county sheriff. [FJ12/23/07]
"A lot of times (the cases) are accompanied by another crime," Leyton said. "Most homicides are the result of drugs or domestic violence. It's too common." [FJ12/23/07]
A 2002 state law allowed for the creation of county or multi-county death review teams to dig deeper into domestic violence fatalities, near fatalities and other serious incidents. [FJ12/23/07]
Folks said teams have been set up in Oakland and Macomb counties nearby. [FJ12/23/07]
Each year, intimate partner homicide happen in increasing numbers in our community. Mothers, fathers and children lose daughters, sons, mothers and fathers in unimaginable tragedy. The Macomb County Domestic Violence Fatality Review Team (MCDVFRT) concluded that more can be done to prevent domestic violence homicides. Domestic violence will end when communities say it will end and when complex, uncoordinated systems make homicide prevention a systemic priority.[MCCDV2006] see
MCL 400.1511
Domestic violence is a pattern of power and control in which one intimate partner seeks to dominate and control the other.
Violence is only one tool that is used by the battering partner.
Other tools include using cultural privileges, emotional abuse, withholding money, using the children and using the legal system. Because the criminal and civil legal systems are designed to address one problem on a given day, the pattern of domestic violence is often difficult for one system to ascertain.
Determinations of patterns that demonstrate a high risk of lethality (increased violence, stalking, abuse of pets, threats to kill, and other factors) are counterintuitive to the way most criminal and civil matters are handled. So much of what occurs is geared toward gathering evidence toward prosecution of a particular crime rather than capturing the intricacies of power and control throughout a relationship that even successful arrest and prosecution does not guarantee victim safety.
Homicide prevention requires an integrated systemic interagency response to hold the assailant accountable and make it practical for the victim to become safe. [MCCDV2006]
The MCDVFRT determined that there are four key system responses that are critical to victim safety: Law enforcement response, criminal justice system response, civil justice response and the response of community and victims services. Although all of the recommendations of the MCDVFRT are important, the following recommendations were determined by the MCDVFRT to be of particular note:
Key law enforcement response recommendations:
• Provide ongoing, coordinated, uniform and county- wide trainings for law enforcement officers who are most often the first responders at a domestic violence scene.
• Development and implementation of countywide, uniform policies regarding investigation and pursuit of perpetrators who flee the scene of a domestic assault.
Key criminal Justice System recommendations:
• Train judges to recognize lethality indicators and respond accordingly in the issuance of personal protection orders.
• Work to end gaps between systems, including insuring that probation is aware of violations that have occurred in other jurisdictions.
Key Civil Justice System recommendations:
• End Macomb County’s practice of assigning domestic violence related felonies to the same judge that hears the divorce action to insure that criminal actions are not seen as a "bargaining chip" in divorce actions.
• Work toward the development of a supervised visitation center for the safety of children and families.
Key Community and Victim Services recommendations:
• Educate the community through public service campaigns on the seriousness of domestic violence particularly when the victim is attempting to leave the relationship.
• Increase domestic violence prevention education in the early years and beyond. [MCCDV2006]
It is our hope that this report will spur conversation and motivate this community to come together toward the common goal of building a safe community. We invite all community members to the table as the Macomb Community Domestic Violence Council works to implement these recommendations. [MCCDV2006]
The following are further recommendations after a review of the public records:
a) Train judges to recognize lethality indicators and respond accordingly in the issuance of a personal protection order.
b) Judges should not issue personal protection order renewals that become less specific over time, if the condition exists as it did at the time of the original petition or the existence of the personal protection order itself is the cause of the cessation of violence. Judges should enter subsequent orders that reflect the original level of threat.
c) Insure that Probation and/or the district court issuing a no contact bond is notified of personal protection order violations.
d) Train District Judges and Magistrates to recognize lethality in setting bond conditions.
e) Insure that domestic violence bond conditions are issued pursuant to MCL 756.6(b); MCL 764.15(e). Bond conditions that comply with this statute are entered in LEIN and convey a warrant-less arrest authority to law enforcement.
f) Insure that the court has a mechanism to enter bond conditions ordered pursuant MCL 756.6(b); MCL 764.15(e) into LEIN.
g) Notify prosecution of personal protection order violations and insure that the Prosecutor has ability to call witnesses.
h) Insure that Probation is aware of violations that have occurred in other courts, create an instant communication system between district court and circuit court/probation/batterer intervention.
I) Judges should strongly consider ordering convicted abusers only to batterer intervention programs that meet state standards and insure that court-sanctioned batterer intervention programs have a method of communicating with probation and the court system.
j) Educate probation on the difference between batterer intervention and anger management.
k) Keep domestic violence cases in district court to reduce the chance that it may become a "bargaining chip" in a family court custody/divorce proceeding.
l) Prosecutors should review the charge to determine if the underlying offense supports a higher charge. For example, where a victim is strangled or sexually assaulted, charge those crimes in addition to domestic violence.
m) Train Prosecutors and probation officers on domestic violence, particularly in recognition of lethality indicators.
n) Train Prosecutors to request sentencing in lieu of jail time, to accredited batterer intervention programs.
o) Train Prosecutors on the procedure for admission of other bad acts (404)(b), the effects of the confrontation clause and effective jury voir dire.
p) Issue witness, and particularly victim, subpoenas at least three days prior to a hearing date.
q) The Prosecutor’s office should continue the no drop policy regarding domestic violence cases. Whenever possible, prosecutors or victim services should call domestic violence victims before court date to assure attendance and alleviate their fears. The no drop/mandatory prosecution policy should be communicated to the police and courts. [MCCDV2006]
Recommendations for the civil legal system are as follows:
a) Train for judges, prosecutors and the Friend of the Court on lethality/danger for domestic violence. New judges, prosecutors and the Friend of the Court employees should be trained not just in the dynamics of domestic violence and lethality assessment but as to the importance of cross systems integration to maximize safety as well as how a survivor experiences disparate systems.
b) Involve community in the development of a supervised visitation and exchange center staffed by professionals trained in assessing dangerousness, lethality and domestic violence.
c) Develop and train a pro bono panel and work toward funding a highly trained legal aid program for indigent domestic violence survivors. Work to include the Macomb County Bar Association and Young Lawyers and provide free training in exchange for pro bono commitment.
d) Recruit representatives from the Friend of the Court and Child Protective Services to become part of Macomb County Coordinated Community Response. Create a working group to address systemic gaps between Family Court and Child Protective Services.
e) Macomb County is the only county statewide that defines "family court" as one judge determining both the criminal and civil issues within one family. All other jurisdictions comply with the definition of MCL 600.102, which defines family court as one judge hearing the divorce and probate action (child protective services case). Because Prosecutors represent the interests of the State of Michigan and a prosecution has significant impact on the Defendant and community interests, involvement of a criminal proceeding concurrent with a family matter provides an appearance of impropriety. The concurrent prosecution of a criminal offense and a divorce proceeding encourages the negotiation of criminal offenses to resolve the family matter, shifting emphasis from crime and punishment and relegating offenses to a family sphere. It is the recommendation of this team that district court judges handle misdemeanor domestic violence cases, and felony actions be assigned to a different circuit court judge than the family court judge handling a pending custody or divorce action.
f) Provide judges, magistrates, referees and probation officers training on the difference between anger management and Batterer’s intervention. Provide probation with a list of Batterer Intervention Programs that meet
state standards.
g) Provide education for civil attorneys on warning signs and safety planning and differences between domestic violence and highly contentious divorces.
h) Provide training for Child Protective Services on the dynamics of domestic violence to insure that the non-offending parent is not being charged with controlling the behavior of the batterer.
I) Create and distribute for use by the Friend of the Court and Family Court a questionnaire to identify lethality based on the FBI’s identified risk factors.
j) Create and distribute model parenting time orders to maximize victim safety for cases involving domestic violence. [MCCDV2006]
"This is an epidemic social ill," she said. What's being talked about are the type of "discussions we have not had to this point" in this county. [FJ12/23/07]
Folks said she expects an answer on her proposal early in 2008 and said the proposed team would be structured like the county's Child Death Review Team, which reviews individual cases of childhood fatalities, looking for trends, patterns, and needed changes. [FJ12/23/07]
The team would include representatives of law enforcement, prosecutors and domestic violence service providers. [FJ12/23/07]
In Oakland County, the team has operated since 2002, according to Lisa Gorcyca, who heads the team. [FJ12/23/07]
"When we review a fatality we learn about (whether) there was prior abuse, had they been in the criminal justice system, and if they had, we make sure the system worked for these people," Gorcyca said. "We look for areas the system could improve on." [FJ12/23/07]
Posted here by
Terry Bankert
12/23/07
http://attorneybankert.com/
-CITED-
[FJ12/23/07]
Tackling domestic violence
Effort would form new review team
GENESEE COUNTY
THE FLINT JOURNAL FIRST EDITIONSunday, December 23, 2007
http://www.mlive.com/news/flintjournal/index.ssf?/base/news-48/1198389011225400.xml&coll=5
-
cite
[MCCDV2006]
Macomb County Domestic Violence Fatality Review Team 2006 Report
FOR MORE INFORMATION REGARDING THE
MACOMB COUNTY FATALITY REVIEW TEAM,
PLEASE FEEL FREE TO CONTACT:
HONORABLE JOSEPH OSTER
DISTRICT JUDGE, 40TH JUDICIAL DISTRICT COURT
22701 JEFFERSON AVENUE
SAINT CLAIR SHORES, MICHIGAN
[DVBB1998]
Domestic Violence Benchbook, Michigan Judicial Institute 1998
Saturday, December 01, 2007
Annulment and elderly parents?
-
IF YOUR ELDERLY PARENT GETS MARRIED TO A GOLD DIGGER WHO DOES NOT CARE FOR YOUR PARENT AND IS ONLY OUT FOR THEIR MONEY WHAT CAN YOU DO?
Issues: Action for annulment of marriage; MCL 552.12; MCR 2.202(A)(1); Tiedman v. Tiedman; MCL 552.1, .2, and .3; Fraud to support an annulment; Stegienko v. Stegienko; Yanoff v. Yanoff; Applicability of Romatz v. Romatz
Court: Michigan Court of Appeals (Unpublished) 11/20/2007
Case Name: Summers, Elson v Kimberely
e-Journal Number: 37694
Wayne County Circuit Court
LC NO 06-612426-DO
Judge(s): Per Curiam – Servitto, Sawyer, and Murray
For a marriage to be valid in Michigan the parties must:
-not be married already,
-not be of the same sex,
-not be too closely related,
-be of marriageable age,
-be capable of contracting,
-enter the marriage without fraud or duress,
A strong presumption exists favoring MARRIAGE’S VALIDITY. Once the celebration of a MARRIAGE is shown, the contract of MARRIAGE, the capacity of the parties, and everything necessary to the validity of the MARRIAGE are presumed. [Michigan Family Law Bench Book MFLBB 2.7]
An annulment is a judicial determination that a valid MARRIAGE did not occur.
An annulment dissolves two categories of MARRIAGE:
*MARRIAGE void ad inito- void from the beginning (although not favored, can be attacked after death of one or both parties)[note this case below defines this]
* Voidable marriage- valid until a party brings an action to annul (must be brought while both parties are living)
Either party may file a petition or complaint for annulment in the family division of the circuit court in the county where at least one party resides. There are no length of residence requirements.
Children of an annulled MARRIAGE:
-the children are legitimate ( for nonage, incompetence, and bigamy, the children are the legitimate offspring of the party capable of contracting MARRIAGE)
-the court provides for the custody and support of the children of the annulled MARRIAGE, regardless of grounds ( and while the annulment is pending)
Property awards- same principals as in a divorce.
Attorney fee awards- same principals as in a divorce.
Grounds: Bigamy,marraige prohibited by the relationship of the parties, incompetence, underage marriage, fraud and duress, inability to have children.
-The court opinion-follows-
Adopting the defendant-wife’s argument, the court held the right to annul a voidable marriage is a personal right and the action for annulment of such marriage can be maintained only by a party to the marriage contract, or where the spouse seeking annulment is under a legal disability, by someone in his or her behalf.
The plaintiff filed this action for annulment of his marriage, but died shortly after the complaint was served.
The trial court initially entered an order allowing plaintiff’s daughters to substitute as parties, but later determined the order was not "appropriate" and dismissed the case.
The issue was whether plaintiff’s death extinguished his claim for annulment. Michigan law is unclear as to actions for annulment. The plaintiff did not plead any of the conditions in MCL 552.1 in the complaint.
Rather, he claimed the defendant fraudulently induced him to marry her by promising him she would care for him, and she breached that promise.
Plaintiff also contended the marriage was not consummated, which alone is not grounds for annulment unless it was part of the fraud inducing the wronged party to consent to marriage and the parties did not cohabited after the fraud.
The appellants-daughters argued based on Romatz an action for annulment survives the death of a party.
Defendant argued Romatz was inapplicable because the case was filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person void based on his lack of capacity to enter into a contract.
The complaint in this case alleged the marriage was voidable based on defendant’s allegedly fraudulent promise to take care of plaintiff.
According to defendant, where a marriage is merely voidable the parties are married until the court enters a judgment of annulment.
Because plaintiff died before any court judgment declared the marriage voidable, the parties were married when plaintiff died and the marriage ended with his death. The court agreed and affirmed.
The lower court dismissed the action. The Michigan Court of Appeals affirmed the action.
-
Appellants appeal as of right.
An action brought to annul a marriage is equitable in nature. MCL 552.12. This Court
reviews equitable matters de novo. Schmude Oil Co v Omar Operating Co, 184 Mich App 574,
582; 458 NW2d 659 (1990).
Pursuant to MCR 2.202(A)(1), if a party to an action dies, "and the claim is not thereby
extinguished, the court may order substitution of the proper parties." The issue to be determined,
therefore, is whether plaintiff’s death extinguished his claim for annulment.
It is well established in Michigan that a court is without jurisdiction to enter a judgment
for divorce after the death of one of the parties. See, e.g., Tiedman v Tiedman, 400 Mich 571,
576; 255 NW2d 632 (1977). However, Michigan law is not as clear regarding actions for
annulment.
MCL 552.1 provides that a marriage is "absolutely void" if it is "prohibited by law"
because of the relationship by consanguinity or affinity of the parties, because one or both parties
is already married, or because either party was "not capable in law of contracting" at the time of
marriage.
Pursuant to MCL 552.2, "in case the consent of one of the parties was obtained by
force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the
marriage shall be deemed void without any decree of divorce or other legal process." MCL
552.3, on which the trial court relied in dismissing this matter, provides:
When a marriage is supposed to be void, or the validity thereof is doubted,
for any of the causes mentioned in the 2 preceding sections, either party,
excepting in the cases where a contrary provision is hereinafter made, may file a
petition or bill in the circuit court of the county where the parties, or one of them,
reside, or in the court of chancery for annulling the same, and such petition or bill
shall be filed and proceedings shall be had thereon, as in the case of a petition or
bill filed in said court for a divorce; and upon due proof of the nullity of the
marriage, it shall be declared void by a decree or sentence of nullity.
In his complaint, plaintiff did not plead any of the conditions in MCL 552.1. Rather, he
alleged that defendant fraudulently induced him to marry her by a promise that she would care
for him, and that she had breached that promise.
Michigan case law has held that for fraud to
rise to the level to support an order of annulment, it must be of a "nature wholly subversive of
the true essence of the marriage relationship," Stegienko v Stegienko, 295 Mich 530, 535; 295
NW 252 (1940), and must "affect the free conduct of the wronged party and be clearly
established." Yanoff v Yanoff, 237 Mich 383, 387; 211 NW 735 (1927).
Plaintiff also maintained that the marriage was not consummated, but that alone is not grounds for annulment unless it is part of the fraud that induced the wronged party to consent to marriage and the parties did not cohabited after that fraud. MCL 552.2.
Appellants argue that the Supreme Court specifically held that an action for annulment
survives the death of a party in Romatz v Romatz, 355 Mich 81; 94 NW2d 432 (1959), in which
the Court overruled its prior decision that had reversed the circuit court’s grant of annulment.1
The action had been brought by the guardian of the husband, who had been adjudicated
incompetent shortly after his marriage.
The husband died in the time between the publication of the two opinions, and the Supreme Court stated, in language relied upon by appellants here:
This brings us to the jurisdictional instrument itself; the bill of complaint
filed in behalf of Anton Romatz in his lifetime. If that bill conferred requisite
jurisdiction at the time, and we so hold, subsequent events -- such as Anton's
death prior to hearing below -- have not destroyed such jurisdiction. [Romatz,
supra, 355 Mich at 85.
Defendant argues that Romatz is distinguishable because the complaint in that case was
filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person
1 Romatz v Romatz, 346 Mich 438; 78 NW2d 160 (1956).
void based on his lack of capacity to enter into a contract. In the present case, the complaint
alleged that the marriage was voidable based on defendant’s allegedly fraudulent promise to take
care of plaintiff.
According to defendant, where a marriage is merely voidable, the parties are
married until a court enters a judgment of annulment. Because plaintiff died before any
judgment by a court declaring the marriage voidable, the parties were married when plaintiff
died, and the marriage ended with his death.
We believe that defendant has the better argument. Although not clearly laid out in
Michigan law, legal authority and case law from other jurisdictions support this position.
" The right to annul a voidable marriage is a personal right and the action for annulment of such a
marriage can be maintained only by a party to the marriage contract or, where the spouse seeking
annulment is under legal disability, by someone in his or her behalf." 4 Am Jur 2d, Annulment
of Marriage, § 61, p 2, citing White v Williams, 159 Miss 732; 132 So 573 (1931); In re Estate of
Davis, 55 Or App 982; 640 P2d 692 (1982).
Further, "[a]n action to annul a marriage on the ground of fraud can only be brought by the defrauded spouse while both parties to the marriage are living; it cannot be annulled at the suit of the heirs of the spouse imposed upon or other third persons." 4 Am Jur 2d, Annulment of Marriage, § 62, p 2, citing Norris v Harrison, 91 US App
DC 103; 198 F2d 953 (1952); Gibbons v Blair, 376 NW2d 22 (ND, 1985); Johnson v Sands, 245
Ky 529; 53 SW2d 929 (1932); White, supra.
Posted here by
Terry Bankert
12/1/07
attorneybankert@yahoo.com
IF YOUR ELDERLY PARENT GETS MARRIED TO A GOLD DIGGER WHO DOES NOT CARE FOR YOUR PARENT AND IS ONLY OUT FOR THEIR MONEY WHAT CAN YOU DO?
Issues: Action for annulment of marriage; MCL 552.12; MCR 2.202(A)(1); Tiedman v. Tiedman; MCL 552.1, .2, and .3; Fraud to support an annulment; Stegienko v. Stegienko; Yanoff v. Yanoff; Applicability of Romatz v. Romatz
Court: Michigan Court of Appeals (Unpublished) 11/20/2007
Case Name: Summers, Elson v Kimberely
e-Journal Number: 37694
Wayne County Circuit Court
LC NO 06-612426-DO
Judge(s): Per Curiam – Servitto, Sawyer, and Murray
For a marriage to be valid in Michigan the parties must:
-not be married already,
-not be of the same sex,
-not be too closely related,
-be of marriageable age,
-be capable of contracting,
-enter the marriage without fraud or duress,
A strong presumption exists favoring MARRIAGE’S VALIDITY. Once the celebration of a MARRIAGE is shown, the contract of MARRIAGE, the capacity of the parties, and everything necessary to the validity of the MARRIAGE are presumed. [Michigan Family Law Bench Book MFLBB 2.7]
An annulment is a judicial determination that a valid MARRIAGE did not occur.
An annulment dissolves two categories of MARRIAGE:
*MARRIAGE void ad inito- void from the beginning (although not favored, can be attacked after death of one or both parties)[note this case below defines this]
* Voidable marriage- valid until a party brings an action to annul (must be brought while both parties are living)
Either party may file a petition or complaint for annulment in the family division of the circuit court in the county where at least one party resides. There are no length of residence requirements.
Children of an annulled MARRIAGE:
-the children are legitimate ( for nonage, incompetence, and bigamy, the children are the legitimate offspring of the party capable of contracting MARRIAGE)
-the court provides for the custody and support of the children of the annulled MARRIAGE, regardless of grounds ( and while the annulment is pending)
Property awards- same principals as in a divorce.
Attorney fee awards- same principals as in a divorce.
Grounds: Bigamy,marraige prohibited by the relationship of the parties, incompetence, underage marriage, fraud and duress, inability to have children.
-The court opinion-follows-
Adopting the defendant-wife’s argument, the court held the right to annul a voidable marriage is a personal right and the action for annulment of such marriage can be maintained only by a party to the marriage contract, or where the spouse seeking annulment is under a legal disability, by someone in his or her behalf.
The plaintiff filed this action for annulment of his marriage, but died shortly after the complaint was served.
The trial court initially entered an order allowing plaintiff’s daughters to substitute as parties, but later determined the order was not "appropriate" and dismissed the case.
The issue was whether plaintiff’s death extinguished his claim for annulment. Michigan law is unclear as to actions for annulment. The plaintiff did not plead any of the conditions in MCL 552.1 in the complaint.
Rather, he claimed the defendant fraudulently induced him to marry her by promising him she would care for him, and she breached that promise.
Plaintiff also contended the marriage was not consummated, which alone is not grounds for annulment unless it was part of the fraud inducing the wronged party to consent to marriage and the parties did not cohabited after the fraud.
The appellants-daughters argued based on Romatz an action for annulment survives the death of a party.
Defendant argued Romatz was inapplicable because the case was filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person void based on his lack of capacity to enter into a contract.
The complaint in this case alleged the marriage was voidable based on defendant’s allegedly fraudulent promise to take care of plaintiff.
According to defendant, where a marriage is merely voidable the parties are married until the court enters a judgment of annulment.
Because plaintiff died before any court judgment declared the marriage voidable, the parties were married when plaintiff died and the marriage ended with his death. The court agreed and affirmed.
The lower court dismissed the action. The Michigan Court of Appeals affirmed the action.
-
Appellants appeal as of right.
An action brought to annul a marriage is equitable in nature. MCL 552.12. This Court
reviews equitable matters de novo. Schmude Oil Co v Omar Operating Co, 184 Mich App 574,
582; 458 NW2d 659 (1990).
Pursuant to MCR 2.202(A)(1), if a party to an action dies, "and the claim is not thereby
extinguished, the court may order substitution of the proper parties." The issue to be determined,
therefore, is whether plaintiff’s death extinguished his claim for annulment.
It is well established in Michigan that a court is without jurisdiction to enter a judgment
for divorce after the death of one of the parties. See, e.g., Tiedman v Tiedman, 400 Mich 571,
576; 255 NW2d 632 (1977). However, Michigan law is not as clear regarding actions for
annulment.
MCL 552.1 provides that a marriage is "absolutely void" if it is "prohibited by law"
because of the relationship by consanguinity or affinity of the parties, because one or both parties
is already married, or because either party was "not capable in law of contracting" at the time of
marriage.
Pursuant to MCL 552.2, "in case the consent of one of the parties was obtained by
force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the
marriage shall be deemed void without any decree of divorce or other legal process." MCL
552.3, on which the trial court relied in dismissing this matter, provides:
When a marriage is supposed to be void, or the validity thereof is doubted,
for any of the causes mentioned in the 2 preceding sections, either party,
excepting in the cases where a contrary provision is hereinafter made, may file a
petition or bill in the circuit court of the county where the parties, or one of them,
reside, or in the court of chancery for annulling the same, and such petition or bill
shall be filed and proceedings shall be had thereon, as in the case of a petition or
bill filed in said court for a divorce; and upon due proof of the nullity of the
marriage, it shall be declared void by a decree or sentence of nullity.
In his complaint, plaintiff did not plead any of the conditions in MCL 552.1. Rather, he
alleged that defendant fraudulently induced him to marry her by a promise that she would care
for him, and that she had breached that promise.
Michigan case law has held that for fraud to
rise to the level to support an order of annulment, it must be of a "nature wholly subversive of
the true essence of the marriage relationship," Stegienko v Stegienko, 295 Mich 530, 535; 295
NW 252 (1940), and must "affect the free conduct of the wronged party and be clearly
established." Yanoff v Yanoff, 237 Mich 383, 387; 211 NW 735 (1927).
Plaintiff also maintained that the marriage was not consummated, but that alone is not grounds for annulment unless it is part of the fraud that induced the wronged party to consent to marriage and the parties did not cohabited after that fraud. MCL 552.2.
Appellants argue that the Supreme Court specifically held that an action for annulment
survives the death of a party in Romatz v Romatz, 355 Mich 81; 94 NW2d 432 (1959), in which
the Court overruled its prior decision that had reversed the circuit court’s grant of annulment.1
The action had been brought by the guardian of the husband, who had been adjudicated
incompetent shortly after his marriage.
The husband died in the time between the publication of the two opinions, and the Supreme Court stated, in language relied upon by appellants here:
This brings us to the jurisdictional instrument itself; the bill of complaint
filed in behalf of Anton Romatz in his lifetime. If that bill conferred requisite
jurisdiction at the time, and we so hold, subsequent events -- such as Anton's
death prior to hearing below -- have not destroyed such jurisdiction. [Romatz,
supra, 355 Mich at 85.
Defendant argues that Romatz is distinguishable because the complaint in that case was
filed under MCL 555.1 and involved a request to declare the marriage of an incompetent person
1 Romatz v Romatz, 346 Mich 438; 78 NW2d 160 (1956).
void based on his lack of capacity to enter into a contract. In the present case, the complaint
alleged that the marriage was voidable based on defendant’s allegedly fraudulent promise to take
care of plaintiff.
According to defendant, where a marriage is merely voidable, the parties are
married until a court enters a judgment of annulment. Because plaintiff died before any
judgment by a court declaring the marriage voidable, the parties were married when plaintiff
died, and the marriage ended with his death.
We believe that defendant has the better argument. Although not clearly laid out in
Michigan law, legal authority and case law from other jurisdictions support this position.
" The right to annul a voidable marriage is a personal right and the action for annulment of such a
marriage can be maintained only by a party to the marriage contract or, where the spouse seeking
annulment is under legal disability, by someone in his or her behalf." 4 Am Jur 2d, Annulment
of Marriage, § 61, p 2, citing White v Williams, 159 Miss 732; 132 So 573 (1931); In re Estate of
Davis, 55 Or App 982; 640 P2d 692 (1982).
Further, "[a]n action to annul a marriage on the ground of fraud can only be brought by the defrauded spouse while both parties to the marriage are living; it cannot be annulled at the suit of the heirs of the spouse imposed upon or other third persons." 4 Am Jur 2d, Annulment of Marriage, § 62, p 2, citing Norris v Harrison, 91 US App
DC 103; 198 F2d 953 (1952); Gibbons v Blair, 376 NW2d 22 (ND, 1985); Johnson v Sands, 245
Ky 529; 53 SW2d 929 (1932); White, supra.
Posted here by
Terry Bankert
12/1/07
attorneybankert@yahoo.com
Friday, November 16, 2007
Girls friends get you less property
Issues: How does a girl friend hurt your divorce.
VLOGG ON THIS TOPIC
http://www.youtube.com/watch?v=xZOajKOdR9I
Divorce; Whether the trial court properly did not include the Detroit house in the marital estate; McDougal v. McDougal; Reeves v. Reeves; Whether the trial court properly assessed fault to the plaintiff-husband and awarded 60 percent of the marital estate to the defendant-wife; Whether the spousal support award was excessive; Olson v. Olson
Court: Michigan Court of Appeals (Unpublished)
Case Name: Homayed v. Homayed
UNPUBLISHED, November 6, 2007 ,No. 271671 , Wayne Circuit Court
LC No. 05-506909-DO, e-Journal Number: 37566
Judge(s): Per Curiam - Markey, Saad, and Wilder
The parties were married in August, 1991, and the judgment of divorce was entered in
March, 2006.
Plaintiff [Husband] had initially filed a complaint for separate maintenance, but the case was tried as a divorce matter. Following a trial, the trial court entered a judgment which plaintiff now challenges in part.
Plaintiff contends that a home in Detroit which was owned at one time
by defendant should have been treated as a part of the marital estate and its value divided equally between the parties.
Plaintiff further contends that the trial court’s assessment of fault to
plaintiff, its division of the marital estate, and its award of spousal support to defendant [wife], were all clearly erroneous.
The trial court did not err by not including the Detroit house in the marital estate and properly entered the judgment of divorce.
The plaintiff-husband contended a home in Detroit owned at one time by the defendant-wife should have been treated as a part of the marital estate and its value divided equally between the parties.
The Detroit house was sold in 1997, long before the divorce.
Plaintiff was evidently challenging the trial court’s characterization of the proceeds of the sale of this home, which the trial court referenced in its discussion of the parties’ contributions to the Brownstown property, as defendant’s “separate asset.”
Plaintiff argued the trial court’s finding the proceeds from the sale were defendant’s separate property was clearly erroneous because (1) evidence was introduced he paid all the monthly bills on the home for 11 years, (2) he paid down the mortgage by $5,000, and (3) he invested $30,000 in capital improvements to the home.
The trial court expressly discredited plaintiff’s testimony with respect to money spent for remodeling the Detroit home.
Although the trial court did not make specific findings with respect to plaintiff’s claims of paying the monthly bills and paying down $5,000 on the mortgage, the absence of specific findings on these minor points did not entitle plaintiff to relief. [during appeal]
Whether plaintiff paid the monthly bills and whether he paid down the mortgage was immaterial to whether the proceeds of the sale were defendant’s separate property.
As this Court has held in regard to the increase in value of a premarital asset during the marriage, whether by equity payments or appreciation,
[t]he sharing and maintenance of a marital home affords both spouses an
interest in any increase in its value (whether by equity payments or appreciation) over the term of a marriage.
Such amount is clearly part of the marital estate.
The parties did not present evidence of the value of the Detroit home and defendant’s equity in the home at the time of the marriage so the appreciation, if any, could be determined.
However, the down payment, the equity built up before the parties’ marriage, and
any appreciation that occurred before the parties’ marriage should have been
considered defendant’s separate estate. [Reeves v Reeves, 226 Mich App 490,
495-496; 575 NW2d 1 (1997).]
Without evidence of an increase in value occurring during the marriage, the trial court’s characterization of the proceeds of the sale of the home as defendant’s separate property was not clear error. Further, any error would have been harmless. Affirmed.
–
* The Detroit property was relevant only as a factor in evaluating the contributions of the parties for the purpose of determining an equitable division of the parties’ marital assets.
*The contribution of each party to the marital estate is one of several factors that a trial court may consider. See McDougal, supra, p 89.
*Assuming arguendo that the characterization was not entirely accurate, the inaccuracy would warrant relief only if correction of the mischaracterization of the parties’ initial contribution to the Brownstown home would likely affect the court’s dispositional ruling.
Even if a portion of the proceeds from the sale of the Detroit property should have been considered a joint contribution to the purchase of the Brownstown property,
the trial court’s explanation of its ruling negates the suggestion that its division of the equity in the Brownstown property at 60 percent to defendant and 40 percent to plaintiff would have been any different.
FAULT
*Plaintiff also argues that the trial court clearly erred in assessing fault to him and awarding 60% of the marital estate to the defendant. We disagree.
The trial court’s finding that fault should be assessed to plaintiff is supported by
defendant’s testimony.
THE MARRIED MAN HAD AN AFFAIR AND TOLD HIS WIFE.
Defendant testified that the parties reconciled after plaintiff admitted having an affair and apologized.
ATTEMPTED RECONCILIATION
Subsequent to his apology and during their attempted reconciliation,
THE MARRIED MAN ADMITTED TO ANOTHER AFFAIR
however, plaintiff admitted that he was again having an affair.
HE LATER THEN ASKED HER TO TAKE HIM BACK, SHE DID.
SHE DISMISSED THE CASE.
In August 2005, after a settlement conference, plaintiff asked defendant to “take him back” and she dismissed the case.
THE MARRIED MAN TOLD HIS WIFE HE WAS GOING TO LIVE WITH HIS GIRL FRIEND FOR 90 DAYS.
After the case was dismissed, however, plaintiff told defendant that he was not coming back for two or three months so that he could be with another woman.
FAULT BASED UPON THE GIRL FRIEND HURTING THE RECONCILIATION.
DO A THINK!
The record supports the court’s factual finding that plaintiff’s relationship with another woman impeded the parties’efforts at reconciliation, and that fault should be assessed to the plaintiff.
THE COURT GIVES THE WIFE 60% Why? Because the husband had a girl friend!
Given the evidence, we find no clear error in the trial court’s allocation of 60% of the marital estate to defendant.
FAULT USED TO AWARD SPOUSAL SUPPORT
Lastly, plaintiff claims that the spousal support award was excessive as a matter of law because the court “erred by relying on ‘fault’ which was not proven and on an arrest which was never prosecuted.”
*However, in determining spousal support, a trial court may consider “the past relations and conduct of the parties,” and “a party’s fault in causing the divorce.” Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). The arrest, which immediately preceded plaintiff’s moving out of the marital home, and the extramarital relationship were appropriately considered by the
trial court.
--end
Vlogg on getting child support lowered.
The 3 min topic concerns how you get child support lowered.
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Divorce; Whether the trial court properly did not include the Detroit house in the marital estate; McDougal v. McDougal; Reeves v. Reeves; Whether the trial court properly assessed fault to the plaintiff-husband and awarded 60 percent of the marital estate to the defendant-wife; Whether the spousal support award was excessive; Olson v. Olson
Court: Michigan Court of Appeals (Unpublished)
Case Name: Homayed v. Homayed
UNPUBLISHED, November 6, 2007 ,No. 271671 , Wayne Circuit Court
LC No. 05-506909-DO, e-Journal Number: 37566
Judge(s): Per Curiam - Markey, Saad, and Wilder
The parties were married in August, 1991, and the judgment of divorce was entered in
March, 2006.
Plaintiff [Husband] had initially filed a complaint for separate maintenance, but the case was tried as a divorce matter. Following a trial, the trial court entered a judgment which plaintiff now challenges in part.
Plaintiff contends that a home in Detroit which was owned at one time
by defendant should have been treated as a part of the marital estate and its value divided equally between the parties.
Plaintiff further contends that the trial court’s assessment of fault to
plaintiff, its division of the marital estate, and its award of spousal support to defendant [wife], were all clearly erroneous.
The trial court did not err by not including the Detroit house in the marital estate and properly entered the judgment of divorce.
The plaintiff-husband contended a home in Detroit owned at one time by the defendant-wife should have been treated as a part of the marital estate and its value divided equally between the parties.
The Detroit house was sold in 1997, long before the divorce.
Plaintiff was evidently challenging the trial court’s characterization of the proceeds of the sale of this home, which the trial court referenced in its discussion of the parties’ contributions to the Brownstown property, as defendant’s “separate asset.”
Plaintiff argued the trial court’s finding the proceeds from the sale were defendant’s separate property was clearly erroneous because (1) evidence was introduced he paid all the monthly bills on the home for 11 years, (2) he paid down the mortgage by $5,000, and (3) he invested $30,000 in capital improvements to the home.
The trial court expressly discredited plaintiff’s testimony with respect to money spent for remodeling the Detroit home.
Although the trial court did not make specific findings with respect to plaintiff’s claims of paying the monthly bills and paying down $5,000 on the mortgage, the absence of specific findings on these minor points did not entitle plaintiff to relief. [during appeal]
Whether plaintiff paid the monthly bills and whether he paid down the mortgage was immaterial to whether the proceeds of the sale were defendant’s separate property.
As this Court has held in regard to the increase in value of a premarital asset during the marriage, whether by equity payments or appreciation,
[t]he sharing and maintenance of a marital home affords both spouses an
interest in any increase in its value (whether by equity payments or appreciation) over the term of a marriage.
Such amount is clearly part of the marital estate.
The parties did not present evidence of the value of the Detroit home and defendant’s equity in the home at the time of the marriage so the appreciation, if any, could be determined.
However, the down payment, the equity built up before the parties’ marriage, and
any appreciation that occurred before the parties’ marriage should have been
considered defendant’s separate estate. [Reeves v Reeves, 226 Mich App 490,
495-496; 575 NW2d 1 (1997).]
Without evidence of an increase in value occurring during the marriage, the trial court’s characterization of the proceeds of the sale of the home as defendant’s separate property was not clear error. Further, any error would have been harmless. Affirmed.
–
* The Detroit property was relevant only as a factor in evaluating the contributions of the parties for the purpose of determining an equitable division of the parties’ marital assets.
*The contribution of each party to the marital estate is one of several factors that a trial court may consider. See McDougal, supra, p 89.
*Assuming arguendo that the characterization was not entirely accurate, the inaccuracy would warrant relief only if correction of the mischaracterization of the parties’ initial contribution to the Brownstown home would likely affect the court’s dispositional ruling.
Even if a portion of the proceeds from the sale of the Detroit property should have been considered a joint contribution to the purchase of the Brownstown property,
the trial court’s explanation of its ruling negates the suggestion that its division of the equity in the Brownstown property at 60 percent to defendant and 40 percent to plaintiff would have been any different.
FAULT
*Plaintiff also argues that the trial court clearly erred in assessing fault to him and awarding 60% of the marital estate to the defendant. We disagree.
The trial court’s finding that fault should be assessed to plaintiff is supported by
defendant’s testimony.
THE MARRIED MAN HAD AN AFFAIR AND TOLD HIS WIFE.
Defendant testified that the parties reconciled after plaintiff admitted having an affair and apologized.
ATTEMPTED RECONCILIATION
Subsequent to his apology and during their attempted reconciliation,
THE MARRIED MAN ADMITTED TO ANOTHER AFFAIR
however, plaintiff admitted that he was again having an affair.
HE LATER THEN ASKED HER TO TAKE HIM BACK, SHE DID.
SHE DISMISSED THE CASE.
In August 2005, after a settlement conference, plaintiff asked defendant to “take him back” and she dismissed the case.
THE MARRIED MAN TOLD HIS WIFE HE WAS GOING TO LIVE WITH HIS GIRL FRIEND FOR 90 DAYS.
After the case was dismissed, however, plaintiff told defendant that he was not coming back for two or three months so that he could be with another woman.
FAULT BASED UPON THE GIRL FRIEND HURTING THE RECONCILIATION.
DO A THINK!
The record supports the court’s factual finding that plaintiff’s relationship with another woman impeded the parties’efforts at reconciliation, and that fault should be assessed to the plaintiff.
THE COURT GIVES THE WIFE 60% Why? Because the husband had a girl friend!
Given the evidence, we find no clear error in the trial court’s allocation of 60% of the marital estate to defendant.
FAULT USED TO AWARD SPOUSAL SUPPORT
Lastly, plaintiff claims that the spousal support award was excessive as a matter of law because the court “erred by relying on ‘fault’ which was not proven and on an arrest which was never prosecuted.”
*However, in determining spousal support, a trial court may consider “the past relations and conduct of the parties,” and “a party’s fault in causing the divorce.” Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). The arrest, which immediately preceded plaintiff’s moving out of the marital home, and the extramarital relationship were appropriately considered by the
trial court.
--end
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Friday, November 09, 2007
Division of marital Property
In a case called Bowditch
Duane [PLAINTIFF]
V
Barbara [DEFEDNANT]
unpublished from the Michigan Court of Appeals , No 270647 was decided on 10/23/07. It arose from the Ottawa Circuit Court N0. 05-051948-DO the following issues were decided.
Issues: Divorce;
1.Whether the trial court properly subtracted certain real property from the marital estate and awarded it to the plaintiff-husband as his separate property; Sparks v. Sparks; Reeves v. Reeves; Dart v. Dart;
2.Whether plaintiff intended for his property to be commingled with the marital property; Pickering v. Pickering;
3.Whether the trial court should have invaded the husband’s separate property to pay for the defendant-wife’s reasonable expenses; Grotelueschen v. Grotelueschen; Charlton v. Charlton;
4.Whether defendant contributed to the acquisition, improvement or accumulation of the property;
5.Whether the trial court equitably divided the marital property; Hanaway v. Hanaway; Whether the trial court considered the Thames factors; MCL 552.23; Olson v. Olson; Korth v. Korth;
6.Whether the trial court properly awarded defendant $205 per month from plaintiff’s pension benefit
Summary:
1.The trial court did not err when it held, inter alia, the plaintiff-husband was entitled to certain real property as his separate property.
2.The parties did not dispute the real property at issue was owned by plaintiff before the marriage or received by him as an inheritance or gift after the marriage.
3.Although the defendant-wife contended all of plaintiff’s real property was commingled and became marital property because he transferred the ownership of the properties into joint title with her a year or two after the marriage, the court disagreed.
4.Transfer of title into joint names can indicate the parties’ intent the separate property had become marital property.
5.However, title alone is not dispositive—rather, the parties’ intent to make separate property marital property is the determining factor.
6.After review of the record, the court concluded the trial court did not clearly err when it determined plaintiff did not intend to make his separate property marital property when he redeeded the property into joint names.
7.Further, less than two years after plaintiff deeded the real property into joint ownership, the couple redeeded the properties to their individual trusts.
8.The court also found unpersuasive defendant’s contention because plaintiff executed a will and wrote a letter explaining his wish to ensure defendant’s financial well-being should he predecease her, his separate property became part of the marital estate.
9.Defendant provided no authority to support her claim testamentary intent is relevant to whether or not property is commingled during life, and the court found no such authority.
10.The court held it did not believe testamentary intent was indicative of the intent to commingle property in life.
11.The court also affirmed the remaining aspects of the trial court’s decisions regarding the property settlement, spousal support, and the award of plaintiff’s pension.
GENERAL
Defendant appeals as of right the judgment of divorce, entered by the trial court on April
5, 2006, specifically, portions of the property settlement, the spousal support award, and the
amount of the award of plaintiff’s pension. The Michigan Court of Appeasld agreed with or affirmed the decision of the lower court.
Defendant first argues that the trial court erred when it subtracted certain real property
from the marital estate and awarded it to plaintiff as his separate property. We disagree.
Assest earned by a spouse during the marriage are generally considered to be part of the marital estate. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002).
Property that a spouse owned before marriage or acquired during the marriage by inheritance or gift is generally considered to be separate property. Dart v Dart, 460 Mich 573, 585; 597 NW2d 82 (1999); Reeves, supra at 495-
496; Postema v Postema, 189 Mich App 89, 109; 471 NW2d 912 (1991).
Separate property can, however, become marital property by commingling or joint use. Reeves, supra at 496-497.
Further, the appreciation of premarital property is included in the marital estate if the parties
actively contribute to the gain in value, but it is not included if the appreciation is due to wholly
passive appreciation. McNamara, supra at 184; Reeves, supra at 497.
Defendant argues,however, that all of plaintiff’s real property was commingled and became marital property.
Transfer of title into joint names can indicate the parties’ intent that separate property has become marital property. Polate v Polate, 331 Mich 652, 654-655; 50
NW2d 190 (1951).
Nevertheless, title alone is not dispositive; rather, the parties’ intent to make
separate property marital property is the determining factor. Id.
After reviewing the record, we conclude that the trial court did not clearly err when it
determined that plaintiff did not intend to make his separate property marital property when
he redeeded the property into joint names. Although defendant claims that they intended to
" share and share alike" all the assets each brought to the marriage, plaintiff testified that although he redeeded the property in joint names, he did not intend that his property become marital property.
Further, less than two years after plaintiff deeded the real property at issue into joint ownership, the couple redeeded the properties to their individual trusts.
Because the trial court, who observed the witnesses and judged the credibility of each, determined that plaintiff did not intend that the property at issue would become marital property, and we are not left with a firm conviction that it erred, we will defer to the trial court’s finding. Stanton v Dachille, 186 Mich App 247, 255; 463 NW2d 479 (1990).
Defendant also argues that because the parties regularly sold real property acquired
before and after the marriage to support their lifestyle, the property plaintiff owned before the
marriage became commingled according to this Court’s ruling in Pickering v Pickering, 268
Mich App 1; 706 NW2d 835 (2005). Again, we disagree.
The settlement check at issue in Pickering was made payable to both parties.
Clearly, it was commingled marital property. Here the properties were in separate trusts, and even if jointly titled, there was no intent to commingle. Although the proceeds from the sales of the various properties throughout the years may have become marital assets because they were used jointly, the properties were separate property until the land was sold at which point the proceeds were commingled as marital property.
The property at issue herein does not include any proceeds from the sale of real property.
Finally, we note that unlike the parties in McNamara, supra at 183-184, who made
additional contributions during the marriage to the retirement funds at issue in the divorce,
plaintiff and defendant did not make any additional contributions to the disputed property.
There is no evidence that any improvements were made to the undeveloped land or that any mortgages on the property at issue were paid off with marital funds.
Even if marital assets paid the property taxes and insurance, such minimal contributions are not "significant" and insufficient to make separate property marital property.
Grotelueschen v Grotelueschen, 113 Mich App 395, 400- 401; 318 NW2d 227 (1982), superseded in part by statute, 10 USC 148(c)(1).
Further, the Court in McNamara, supra at 185, noted that the funds were commingled because it was impossible to separate the premarital from marital appreciation in the accounts, but here, the appreciation of the individual parcels could be determined.
We conclude that the trial court did not clearly err when it ruled that the Fillmore Street
and Bowditch subdivision properties were not marital property because they were jointly titled
only briefly and remained in plaintiff’s trust for the remainder of the marriage. Thus, because
that property was separate property, subtraction from the marital estate was proper. Reeves,
supra at 494.
We also affirm the trial court’s conclusion that because Parcels A and D, and the Pierce
Street property remained in the defendant’s trust for 10 and 15 years, respectively, the property was commingled and became marital property. Although title is not dispositive, the fact that plaintiff allowed the property to remain in the defendant’s trust for so many years is strong evidence that he intended that property to become marital assets.
Defendant also argues, in her reply brief, that the trial court erred when it valued the
marital portion of the Pierce Street property at one-half its current value based on the number of years it was in joint ownership.
Defendant did not raise the issue in her brief on appeal, and
issues raised for the first time in a reply brief are not properly presented for review. MCR
7.212(G); Maxwell v Dep’t of Environmental Quality, 264 Mich App 567, 576; 692 NW2d 68
(2004). Thus, we decline to address the issue and affirm the trial court’s valuation of the
property.
Defendant also argues that if the trial court properly excluded plaintiff’s separate
property, it erred in not invading that property to provide for defendant’s reasonable living
expenses. We disagree.
A trial court may invade the separate property of one spouse to
distribute to the other spouse under two circumstances.
First separate property or a portion of it may be awarded to the other spouse where the other spouse "contributed to the acquisition, improvement or accumulation" of the separate property. MCL 552.401; Reeves, supra at 494- 495.
Second, separate property may be awarded to the other spouse when the marital estate is
insufficient for the suitable support and maintenance of the other spouse. MCL 552.23; Charlton
v Charlton, 397 Mich 84, 94; 243 NW2d 261 (1976).
In this case, defendant’s argument that she contributed to the acquisition, improvement or
accumulation of the separate property is not supported by the record. The record shows that
defendant assisted plaintiff in giving gifts to his children and allowed plaintiff to put his property
into her trust.
Those minimal contributions are not a significant contribution to the accumulation
of the assets. Grotelueschen, supra at 400-401. Further, although the property appreciated in
value over the 18 years of the parties’ marriage, such wholly passive appreciation of separate
property does not become marital property. Reeves, supra at 497.
In her reply brief, defendant argues that she was actively involved in maintaining the
properties, developing the subdivisions, and paying taxes for 18 years, but we could find no
support in the record below for those claims.
At best, the evidence at trial shows that defendant
kept the couple’s check book and paid bills and that the two decided together which properties to sell to finance their expenses.
In light of the lack of evidence in the lower court record that
supports defendant’s claims, we do not have a firm and definite conviction the trial court made a
mistake when it failed to find that defendant contributed to the acquisition, improvement, or
accumulation of the property.
Defendant also failed to show that the award of marital property is insufficient to meet
her reasonable living expenses.
Although she argues on appeal that she is unable to maintain an
adequate standard of living with the trial court’s existing award, she provided no evidence of her
living expenses.
Because defendant failed to provide the lower court with any evidence, the trial
court presumed reasonable living expenses.
Given the dearth of evidence in the record, we cannot say the court clearly erred when it found that defendant’s social security benefits, investment income, and spousal support was sufficient to meet her needs. Thus, the trial court did not err when it failed to invade plaintiff’s separate property for her support. MCL 552.25; Charlton, supra at 94.
Defendant also argues that even if the disputed property was plaintiff’s separate property,
the division of assets was inequitable because she received a small fraction of the total assets of
both parties. The argument is without merit because "it does not matter if the division of the
entire holdings appears one-sided, what is important is the division of the marital estate."
Reeves, supra at 497.
Defendant additionally argues that the trial court erred when it failed to consider and
make adequate findings of fact on the record regarding the appropriate factors when dividing the marital estate. We disagree.
To reach an equitable division, the trial court should consider the
applicable factors and must make specific findings regarding the factors it determines are
relevant. Sparks, supra at 158-160. Those factors include: the duration of the marriage; the
contribution of each party to the marital estate; each party’s station in life; each party’s earning
ability; each party’s age, health and needs; fault or past misconduct; and any other equitable
circumstance. Id. While the trial court’s opinion may be a bit terse, we find it to be adequate.
Defendant next argues that the trial court erred as a matter of law when it ruled that
defendant could sell her home and move to less expensive quarters if she needed additional funds to support herself.
Defendant is correct that a spouse should not be required to invade his or her
marital capital or property award to pay daily living expenses.
When determining spousal support, the trial court "should focus on the income-earning potential of the assets and should not evaluate a party’s ability to provide self-support by including in the amount available for support the value of the assets themselves." Hanaway v Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995).
Nevertheless, after reviewing the record, we find that the trial court’s comment was
made in the context of explaining its spousal support award and expressed its concern that she
have a debt-free place to live.
The trial court did not intend that defendant would have to sell her
home to meet daily living expenses.
Rather, the trial court intended that defendant’s income be
sufficient to meet her daily living expenses and awarded her what it determined was adequate
support to meet her daily needs.
We further note that the trial court properly considered the
income-earning potential of the couple’s assets, because it awarded defendant the only incomeproducing asset the couple owned.
Defendant next argues that the trial court abused its discretion when it failed to consider
the Thames1 factors and reduced defendant’s total spousal support. We disagree. The trial court
correctly awarded spousal support to defendant because her portion of the marital estate is
insufficient to provide for her support. MCL 552.23. The main purpose of spousal support "is to
balance the incomes and needs of the parties in a way which will not impoverish either party,"
and spousal support must be based on "what is just and reasonable under the circumstances of
the case." Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). The trial court should
consider the following factors:
(1) the past relations and conduct of the parties,
(2) the length of the
marriage,
(3) the abilities of the parties to work,
(4) the source and amount of
property awarded to the parties,
(5) the parties’ ages,
(6) the abilities of the parties
to pay alimony,
(7) the present situation of the parties,
(8) the needs of the parties,
(9) the parties’ health,
(10) the prior standard of living of the parties and whether
either is responsible for the support of others,
(11) contributions of the parties to
the joint estate,
(12) a party’s fault in causing the divorce,
(13) the effect of
cohabitation on a party’s financial status, and
(14) general principles of equity.
[Id.]
It is apparent from the trial court’s opinion that it considered the defendant’s ability to
work, the source and amount of property awarded to defendant, the ages of the parties, the ability of plaintiff to pay spousal support, the needs of defendant, and the parties’ health and awarded defendant spousal support sufficient to meet her needs. However, the trial court must make specific findings of fact regarding all of the relevant factors, Korth v Korth, 256 Mich App 286, 289; 662 NW2d 111 (2003), and it did not do so in this case.
Nevertheless, because our review of the record indicates that we would not have reached a different result, we will not reverse the trial court’s decision. Lee v Lee, 191 Mich App 73, 80; 477 NW2d 429 (1991).
Defendant insists that she is entitled to, at least, the same amount that she was receiving
in temporary support, but she offers no argument in support of that assertion. She provided no
indication of her actual living expenses, below or on appeal, and simply argues that her income is
insufficient to cover her expenses. Because defendant failed to present any evidence of her
living expenses, the trial court presumed what her reasonable living expenses would be and
awarded sufficient spousal support to meet those presumed needs. In light of defendant’s failure
to provide any facts regarding actual expenses for the record or this Court’s review, we conclude
that the trial court’s estimates are not clearly erroneous and that the award was just and
reasonable under the circumstances. Because we would not have reached a different result,
reversal is not required despite the trial court’s failure to explicitly state its findings regarding
each Thames factor on the record. Lee, supra at 80.
Defendant’s final argument on appeal is that the trial court erred when it awarded her
only $205 per month from plaintiff’s pension benefit. We disagree. The portion of vested
1 Thames v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991) pension benefits that are earned by a party during the marriage are part of the marital estate and are subject to award upon divorce. MCL 552.18(1); Pickering, supra at 7-8; McNamara, supra at 187-188. The allocation of a pension benefit that accrued both before and during the marriage
should be based upon the ratio of the years the parties were married while the spouse earned the pension to the total years that the spouse worked to earn the pension. Pickering, supra at 8.
Plaintiff is receiving benefits from his "30-year" pension. The trial court found as fact
that plaintiff worked or received credit during the marriage for approximately five years of
service; thus, the marital portion of his pension was five-thirtieths, and defendant’s share was
one-half of that fraction.
The record supports that plaintiff and defendant were married for three
years and ten months before plaintiff retired. Plaintiff purchased 21 months’ military service
retirement credits with defendant’s assistance after they married. Defendant claims on appeal
that plaintiff purchased fifteen years of credit with her assistance, but that claim is not supported by the record and defendant conceded at trial that plaintiff only received 21 months’ credit.
Thus, plaintiff earned 67 months’ or a little more than five and one-half years’ credit during the
marriage. The trial court’s determination that one-sixth of plaintiff’s pension was marital
property was not clearly erroneous.
Affirmed.
Duane [PLAINTIFF]
V
Barbara [DEFEDNANT]
unpublished from the Michigan Court of Appeals , No 270647 was decided on 10/23/07. It arose from the Ottawa Circuit Court N0. 05-051948-DO the following issues were decided.
Issues: Divorce;
1.Whether the trial court properly subtracted certain real property from the marital estate and awarded it to the plaintiff-husband as his separate property; Sparks v. Sparks; Reeves v. Reeves; Dart v. Dart;
2.Whether plaintiff intended for his property to be commingled with the marital property; Pickering v. Pickering;
3.Whether the trial court should have invaded the husband’s separate property to pay for the defendant-wife’s reasonable expenses; Grotelueschen v. Grotelueschen; Charlton v. Charlton;
4.Whether defendant contributed to the acquisition, improvement or accumulation of the property;
5.Whether the trial court equitably divided the marital property; Hanaway v. Hanaway; Whether the trial court considered the Thames factors; MCL 552.23; Olson v. Olson; Korth v. Korth;
6.Whether the trial court properly awarded defendant $205 per month from plaintiff’s pension benefit
Summary:
1.The trial court did not err when it held, inter alia, the plaintiff-husband was entitled to certain real property as his separate property.
2.The parties did not dispute the real property at issue was owned by plaintiff before the marriage or received by him as an inheritance or gift after the marriage.
3.Although the defendant-wife contended all of plaintiff’s real property was commingled and became marital property because he transferred the ownership of the properties into joint title with her a year or two after the marriage, the court disagreed.
4.Transfer of title into joint names can indicate the parties’ intent the separate property had become marital property.
5.However, title alone is not dispositive—rather, the parties’ intent to make separate property marital property is the determining factor.
6.After review of the record, the court concluded the trial court did not clearly err when it determined plaintiff did not intend to make his separate property marital property when he redeeded the property into joint names.
7.Further, less than two years after plaintiff deeded the real property into joint ownership, the couple redeeded the properties to their individual trusts.
8.The court also found unpersuasive defendant’s contention because plaintiff executed a will and wrote a letter explaining his wish to ensure defendant’s financial well-being should he predecease her, his separate property became part of the marital estate.
9.Defendant provided no authority to support her claim testamentary intent is relevant to whether or not property is commingled during life, and the court found no such authority.
10.The court held it did not believe testamentary intent was indicative of the intent to commingle property in life.
11.The court also affirmed the remaining aspects of the trial court’s decisions regarding the property settlement, spousal support, and the award of plaintiff’s pension.
GENERAL
Defendant appeals as of right the judgment of divorce, entered by the trial court on April
5, 2006, specifically, portions of the property settlement, the spousal support award, and the
amount of the award of plaintiff’s pension. The Michigan Court of Appeasld agreed with or affirmed the decision of the lower court.
Defendant first argues that the trial court erred when it subtracted certain real property
from the marital estate and awarded it to plaintiff as his separate property. We disagree.
Assest earned by a spouse during the marriage are generally considered to be part of the marital estate. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002).
Property that a spouse owned before marriage or acquired during the marriage by inheritance or gift is generally considered to be separate property. Dart v Dart, 460 Mich 573, 585; 597 NW2d 82 (1999); Reeves, supra at 495-
496; Postema v Postema, 189 Mich App 89, 109; 471 NW2d 912 (1991).
Separate property can, however, become marital property by commingling or joint use. Reeves, supra at 496-497.
Further, the appreciation of premarital property is included in the marital estate if the parties
actively contribute to the gain in value, but it is not included if the appreciation is due to wholly
passive appreciation. McNamara, supra at 184; Reeves, supra at 497.
Defendant argues,however, that all of plaintiff’s real property was commingled and became marital property.
Transfer of title into joint names can indicate the parties’ intent that separate property has become marital property. Polate v Polate, 331 Mich 652, 654-655; 50
NW2d 190 (1951).
Nevertheless, title alone is not dispositive; rather, the parties’ intent to make
separate property marital property is the determining factor. Id.
After reviewing the record, we conclude that the trial court did not clearly err when it
determined that plaintiff did not intend to make his separate property marital property when
he redeeded the property into joint names. Although defendant claims that they intended to
" share and share alike" all the assets each brought to the marriage, plaintiff testified that although he redeeded the property in joint names, he did not intend that his property become marital property.
Further, less than two years after plaintiff deeded the real property at issue into joint ownership, the couple redeeded the properties to their individual trusts.
Because the trial court, who observed the witnesses and judged the credibility of each, determined that plaintiff did not intend that the property at issue would become marital property, and we are not left with a firm conviction that it erred, we will defer to the trial court’s finding. Stanton v Dachille, 186 Mich App 247, 255; 463 NW2d 479 (1990).
Defendant also argues that because the parties regularly sold real property acquired
before and after the marriage to support their lifestyle, the property plaintiff owned before the
marriage became commingled according to this Court’s ruling in Pickering v Pickering, 268
Mich App 1; 706 NW2d 835 (2005). Again, we disagree.
The settlement check at issue in Pickering was made payable to both parties.
Clearly, it was commingled marital property. Here the properties were in separate trusts, and even if jointly titled, there was no intent to commingle. Although the proceeds from the sales of the various properties throughout the years may have become marital assets because they were used jointly, the properties were separate property until the land was sold at which point the proceeds were commingled as marital property.
The property at issue herein does not include any proceeds from the sale of real property.
Finally, we note that unlike the parties in McNamara, supra at 183-184, who made
additional contributions during the marriage to the retirement funds at issue in the divorce,
plaintiff and defendant did not make any additional contributions to the disputed property.
There is no evidence that any improvements were made to the undeveloped land or that any mortgages on the property at issue were paid off with marital funds.
Even if marital assets paid the property taxes and insurance, such minimal contributions are not "significant" and insufficient to make separate property marital property.
Grotelueschen v Grotelueschen, 113 Mich App 395, 400- 401; 318 NW2d 227 (1982), superseded in part by statute, 10 USC 148(c)(1).
Further, the Court in McNamara, supra at 185, noted that the funds were commingled because it was impossible to separate the premarital from marital appreciation in the accounts, but here, the appreciation of the individual parcels could be determined.
We conclude that the trial court did not clearly err when it ruled that the Fillmore Street
and Bowditch subdivision properties were not marital property because they were jointly titled
only briefly and remained in plaintiff’s trust for the remainder of the marriage. Thus, because
that property was separate property, subtraction from the marital estate was proper. Reeves,
supra at 494.
We also affirm the trial court’s conclusion that because Parcels A and D, and the Pierce
Street property remained in the defendant’s trust for 10 and 15 years, respectively, the property was commingled and became marital property. Although title is not dispositive, the fact that plaintiff allowed the property to remain in the defendant’s trust for so many years is strong evidence that he intended that property to become marital assets.
Defendant also argues, in her reply brief, that the trial court erred when it valued the
marital portion of the Pierce Street property at one-half its current value based on the number of years it was in joint ownership.
Defendant did not raise the issue in her brief on appeal, and
issues raised for the first time in a reply brief are not properly presented for review. MCR
7.212(G); Maxwell v Dep’t of Environmental Quality, 264 Mich App 567, 576; 692 NW2d 68
(2004). Thus, we decline to address the issue and affirm the trial court’s valuation of the
property.
Defendant also argues that if the trial court properly excluded plaintiff’s separate
property, it erred in not invading that property to provide for defendant’s reasonable living
expenses. We disagree.
A trial court may invade the separate property of one spouse to
distribute to the other spouse under two circumstances.
First separate property or a portion of it may be awarded to the other spouse where the other spouse "contributed to the acquisition, improvement or accumulation" of the separate property. MCL 552.401; Reeves, supra at 494- 495.
Second, separate property may be awarded to the other spouse when the marital estate is
insufficient for the suitable support and maintenance of the other spouse. MCL 552.23; Charlton
v Charlton, 397 Mich 84, 94; 243 NW2d 261 (1976).
In this case, defendant’s argument that she contributed to the acquisition, improvement or
accumulation of the separate property is not supported by the record. The record shows that
defendant assisted plaintiff in giving gifts to his children and allowed plaintiff to put his property
into her trust.
Those minimal contributions are not a significant contribution to the accumulation
of the assets. Grotelueschen, supra at 400-401. Further, although the property appreciated in
value over the 18 years of the parties’ marriage, such wholly passive appreciation of separate
property does not become marital property. Reeves, supra at 497.
In her reply brief, defendant argues that she was actively involved in maintaining the
properties, developing the subdivisions, and paying taxes for 18 years, but we could find no
support in the record below for those claims.
At best, the evidence at trial shows that defendant
kept the couple’s check book and paid bills and that the two decided together which properties to sell to finance their expenses.
In light of the lack of evidence in the lower court record that
supports defendant’s claims, we do not have a firm and definite conviction the trial court made a
mistake when it failed to find that defendant contributed to the acquisition, improvement, or
accumulation of the property.
Defendant also failed to show that the award of marital property is insufficient to meet
her reasonable living expenses.
Although she argues on appeal that she is unable to maintain an
adequate standard of living with the trial court’s existing award, she provided no evidence of her
living expenses.
Because defendant failed to provide the lower court with any evidence, the trial
court presumed reasonable living expenses.
Given the dearth of evidence in the record, we cannot say the court clearly erred when it found that defendant’s social security benefits, investment income, and spousal support was sufficient to meet her needs. Thus, the trial court did not err when it failed to invade plaintiff’s separate property for her support. MCL 552.25; Charlton, supra at 94.
Defendant also argues that even if the disputed property was plaintiff’s separate property,
the division of assets was inequitable because she received a small fraction of the total assets of
both parties. The argument is without merit because "it does not matter if the division of the
entire holdings appears one-sided, what is important is the division of the marital estate."
Reeves, supra at 497.
Defendant additionally argues that the trial court erred when it failed to consider and
make adequate findings of fact on the record regarding the appropriate factors when dividing the marital estate. We disagree.
To reach an equitable division, the trial court should consider the
applicable factors and must make specific findings regarding the factors it determines are
relevant. Sparks, supra at 158-160. Those factors include: the duration of the marriage; the
contribution of each party to the marital estate; each party’s station in life; each party’s earning
ability; each party’s age, health and needs; fault or past misconduct; and any other equitable
circumstance. Id. While the trial court’s opinion may be a bit terse, we find it to be adequate.
Defendant next argues that the trial court erred as a matter of law when it ruled that
defendant could sell her home and move to less expensive quarters if she needed additional funds to support herself.
Defendant is correct that a spouse should not be required to invade his or her
marital capital or property award to pay daily living expenses.
When determining spousal support, the trial court "should focus on the income-earning potential of the assets and should not evaluate a party’s ability to provide self-support by including in the amount available for support the value of the assets themselves." Hanaway v Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995).
Nevertheless, after reviewing the record, we find that the trial court’s comment was
made in the context of explaining its spousal support award and expressed its concern that she
have a debt-free place to live.
The trial court did not intend that defendant would have to sell her
home to meet daily living expenses.
Rather, the trial court intended that defendant’s income be
sufficient to meet her daily living expenses and awarded her what it determined was adequate
support to meet her daily needs.
We further note that the trial court properly considered the
income-earning potential of the couple’s assets, because it awarded defendant the only incomeproducing asset the couple owned.
Defendant next argues that the trial court abused its discretion when it failed to consider
the Thames1 factors and reduced defendant’s total spousal support. We disagree. The trial court
correctly awarded spousal support to defendant because her portion of the marital estate is
insufficient to provide for her support. MCL 552.23. The main purpose of spousal support "is to
balance the incomes and needs of the parties in a way which will not impoverish either party,"
and spousal support must be based on "what is just and reasonable under the circumstances of
the case." Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). The trial court should
consider the following factors:
(1) the past relations and conduct of the parties,
(2) the length of the
marriage,
(3) the abilities of the parties to work,
(4) the source and amount of
property awarded to the parties,
(5) the parties’ ages,
(6) the abilities of the parties
to pay alimony,
(7) the present situation of the parties,
(8) the needs of the parties,
(9) the parties’ health,
(10) the prior standard of living of the parties and whether
either is responsible for the support of others,
(11) contributions of the parties to
the joint estate,
(12) a party’s fault in causing the divorce,
(13) the effect of
cohabitation on a party’s financial status, and
(14) general principles of equity.
[Id.]
It is apparent from the trial court’s opinion that it considered the defendant’s ability to
work, the source and amount of property awarded to defendant, the ages of the parties, the ability of plaintiff to pay spousal support, the needs of defendant, and the parties’ health and awarded defendant spousal support sufficient to meet her needs. However, the trial court must make specific findings of fact regarding all of the relevant factors, Korth v Korth, 256 Mich App 286, 289; 662 NW2d 111 (2003), and it did not do so in this case.
Nevertheless, because our review of the record indicates that we would not have reached a different result, we will not reverse the trial court’s decision. Lee v Lee, 191 Mich App 73, 80; 477 NW2d 429 (1991).
Defendant insists that she is entitled to, at least, the same amount that she was receiving
in temporary support, but she offers no argument in support of that assertion. She provided no
indication of her actual living expenses, below or on appeal, and simply argues that her income is
insufficient to cover her expenses. Because defendant failed to present any evidence of her
living expenses, the trial court presumed what her reasonable living expenses would be and
awarded sufficient spousal support to meet those presumed needs. In light of defendant’s failure
to provide any facts regarding actual expenses for the record or this Court’s review, we conclude
that the trial court’s estimates are not clearly erroneous and that the award was just and
reasonable under the circumstances. Because we would not have reached a different result,
reversal is not required despite the trial court’s failure to explicitly state its findings regarding
each Thames factor on the record. Lee, supra at 80.
Defendant’s final argument on appeal is that the trial court erred when it awarded her
only $205 per month from plaintiff’s pension benefit. We disagree. The portion of vested
1 Thames v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991) pension benefits that are earned by a party during the marriage are part of the marital estate and are subject to award upon divorce. MCL 552.18(1); Pickering, supra at 7-8; McNamara, supra at 187-188. The allocation of a pension benefit that accrued both before and during the marriage
should be based upon the ratio of the years the parties were married while the spouse earned the pension to the total years that the spouse worked to earn the pension. Pickering, supra at 8.
Plaintiff is receiving benefits from his "30-year" pension. The trial court found as fact
that plaintiff worked or received credit during the marriage for approximately five years of
service; thus, the marital portion of his pension was five-thirtieths, and defendant’s share was
one-half of that fraction.
The record supports that plaintiff and defendant were married for three
years and ten months before plaintiff retired. Plaintiff purchased 21 months’ military service
retirement credits with defendant’s assistance after they married. Defendant claims on appeal
that plaintiff purchased fifteen years of credit with her assistance, but that claim is not supported by the record and defendant conceded at trial that plaintiff only received 21 months’ credit.
Thus, plaintiff earned 67 months’ or a little more than five and one-half years’ credit during the
marriage. The trial court’s determination that one-sixth of plaintiff’s pension was marital
property was not clearly erroneous.
Affirmed.
Tuesday, November 06, 2007
Division of marital property.
Issues: Divorce;
Division of marital property;
Tymes Anna v Ronald Unpublished Mich App. 10/30/2007 No. 270598 out of Kent County LC No. 04-011087-DM
e-Journal Number: 37525
In a case called Tymes the Court of Appeals rules on how to divide the equity in a marital home.
At the time of the parties’ marriage in 1987, defendant Ronald Tymes was employed full-time at General Motors Corporation (GM).
Although plaintiff Anna Tymes was then also employed full-time as a nurse’s aid, she later left that job in order to care for the couple’s children.
The parties purchased a home in 1994, after which plaintiff began working part-time performing secretarial functions at a church.
Before trial, the parties reached stipulations regarding their personal property. They also agreed that defendant would receive the marital home as his separate property and would remain responsible for the mortgage payments on the home. At the close of trial, the trial court awarded each party one-half of the $10,000 in equity it found in the marital home.
The trial court’s finding regarding equity in the marital home and its decision to award plaintiff half of the equity; Draggoo v. Draggoo; Olson v. Olson;
Defendant Ronald Tymes argued that the trial court erred in finding that there was $10,000 equity in the marital home and that the court’s decision to award $5,000 of the equity to plaintiff was inequitable.
We disagree.
In Draggoo v Draggoo, 223 Mich App 415, 429-430; 566 NW2d 642 (1997), this Court
set forth the following standards of review that apply in divorce cases:
In a divorce case, this Court must first review the trial court’s findings of fact . . .
under the clearly erroneous standard. A finding is clearly erroneous if, after a
review of the entire record, the reviewing court is left with the definite and firm
conviction that a mistake has been made.
This Court gives special deference to a trial court’s findings when they are based on the credibility of the witnesses.
If the trial court’s findings of fact are upheld, this Court must decide whether the
dispositive ruling was fair and equitable in light of those facts. The dispositional
ruling is discretionary and should be affirmed unless this Court is left with the
firm conviction that the division was inequitable. [Citations omitted.]
"The goal of a court when apportioning a marital estate is to equitably divide it in light of
all the circumstances." Reed v Reed, 265 Mich App 131, 152; 693 NW2d 825 (2005). "As a
prelude to this property division, a trial court must first make specific findings regarding the
value of the property being awarded in the judgment." Olson v Olson, 256 Mich App 619, 627;
671 NW2d 64 (2003).
The trial court may base the valuation on expert testimony, lay testimony, the parties’ testimony, or may appoint its own independent expert to provide the court with a
more objective valuation. Id. at 627 n 4.
In this case, trial testimony revealed that the parties refinanced the marital home in 2002.
At that time, an appraiser valued the home at $110,000, which defendant claimed at trial was not an accurate valuation. Specifically, defendant testified that the appraiser inflated the value of the home to help the parties obtain a larger mortgage from the bank. In or around October 2005, plaintiff’s attorney arranged for appraiser Kevin Garcia to conduct an appraisal of the marital home.
Plaintiff testified that Garcia appraised the marital home "in the eighties." Defendant
testified that he was present when the appraisal was conducted and that Garcia appraised the
home’s value at approximately $84,000. The record also reveals, however, that in October 2005 defendant filed a petition for bankruptcy in which he declared the value of the marital home to be $103,800, subject to a $93,858 mortgage. Defendant testified at trial that he did not have a copy of Garcia’s appraisal when he prepared his bankruptcy petition and, thus, was required to estimate the value of the home using its state equalized value (SEV). According to defendant, the SEV was based upon the 2002 appraisal and, thus, was not an accurate reflection of the true market value of the home.
On the record before us, the evidence supported the trial court’s finding that there was
$10,000 equity in the marital home. Based upon the figures provided by defendant in his
bankruptcy petition, which he signed under penalty of perjury, the equity in the home was
approximately $9,942.
We recognize that defendant testified that the 2002 appraisal, upon which
the declaration in his bankruptcy petition was based, was not an accurate representation of the
value of the home, and that the condition of the home had deteriorated since the 2002 appraisal
was conducted. However, it is not a reviewing court’s function to resolve conflicts in the
evidence or pass on the credibility of witnesses. See Stoudemire v Stoudemire, 248 Mich App
325, 339; 639 NW2d 274 (2001). Rather, we must give special deference to the trial court’s
findings. MCR 2.613(C); Draggoo, supra at 429. Affording such deference here, we find no
clear error in the trial court’s conclusion regarding the equity in the parties’ marital home.
Furthermore, defendant failed to establish that the trial court’s decision to award $5,000 of the
equity to plaintiff was inequitable. The trial court’s decision to award one-half of the equity in
the home to plaintiff was consistent with its goal of fashioning a "roughly congruent" property
distribution in this case. See Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).
Division of marital property;
Tymes Anna v Ronald Unpublished Mich App. 10/30/2007 No. 270598 out of Kent County LC No. 04-011087-DM
e-Journal Number: 37525
In a case called Tymes the Court of Appeals rules on how to divide the equity in a marital home.
At the time of the parties’ marriage in 1987, defendant Ronald Tymes was employed full-time at General Motors Corporation (GM).
Although plaintiff Anna Tymes was then also employed full-time as a nurse’s aid, she later left that job in order to care for the couple’s children.
The parties purchased a home in 1994, after which plaintiff began working part-time performing secretarial functions at a church.
Before trial, the parties reached stipulations regarding their personal property. They also agreed that defendant would receive the marital home as his separate property and would remain responsible for the mortgage payments on the home. At the close of trial, the trial court awarded each party one-half of the $10,000 in equity it found in the marital home.
The trial court’s finding regarding equity in the marital home and its decision to award plaintiff half of the equity; Draggoo v. Draggoo; Olson v. Olson;
Defendant Ronald Tymes argued that the trial court erred in finding that there was $10,000 equity in the marital home and that the court’s decision to award $5,000 of the equity to plaintiff was inequitable.
We disagree.
In Draggoo v Draggoo, 223 Mich App 415, 429-430; 566 NW2d 642 (1997), this Court
set forth the following standards of review that apply in divorce cases:
In a divorce case, this Court must first review the trial court’s findings of fact . . .
under the clearly erroneous standard. A finding is clearly erroneous if, after a
review of the entire record, the reviewing court is left with the definite and firm
conviction that a mistake has been made.
This Court gives special deference to a trial court’s findings when they are based on the credibility of the witnesses.
If the trial court’s findings of fact are upheld, this Court must decide whether the
dispositive ruling was fair and equitable in light of those facts. The dispositional
ruling is discretionary and should be affirmed unless this Court is left with the
firm conviction that the division was inequitable. [Citations omitted.]
"The goal of a court when apportioning a marital estate is to equitably divide it in light of
all the circumstances." Reed v Reed, 265 Mich App 131, 152; 693 NW2d 825 (2005). "As a
prelude to this property division, a trial court must first make specific findings regarding the
value of the property being awarded in the judgment." Olson v Olson, 256 Mich App 619, 627;
671 NW2d 64 (2003).
The trial court may base the valuation on expert testimony, lay testimony, the parties’ testimony, or may appoint its own independent expert to provide the court with a
more objective valuation. Id. at 627 n 4.
In this case, trial testimony revealed that the parties refinanced the marital home in 2002.
At that time, an appraiser valued the home at $110,000, which defendant claimed at trial was not an accurate valuation. Specifically, defendant testified that the appraiser inflated the value of the home to help the parties obtain a larger mortgage from the bank. In or around October 2005, plaintiff’s attorney arranged for appraiser Kevin Garcia to conduct an appraisal of the marital home.
Plaintiff testified that Garcia appraised the marital home "in the eighties." Defendant
testified that he was present when the appraisal was conducted and that Garcia appraised the
home’s value at approximately $84,000. The record also reveals, however, that in October 2005 defendant filed a petition for bankruptcy in which he declared the value of the marital home to be $103,800, subject to a $93,858 mortgage. Defendant testified at trial that he did not have a copy of Garcia’s appraisal when he prepared his bankruptcy petition and, thus, was required to estimate the value of the home using its state equalized value (SEV). According to defendant, the SEV was based upon the 2002 appraisal and, thus, was not an accurate reflection of the true market value of the home.
On the record before us, the evidence supported the trial court’s finding that there was
$10,000 equity in the marital home. Based upon the figures provided by defendant in his
bankruptcy petition, which he signed under penalty of perjury, the equity in the home was
approximately $9,942.
We recognize that defendant testified that the 2002 appraisal, upon which
the declaration in his bankruptcy petition was based, was not an accurate representation of the
value of the home, and that the condition of the home had deteriorated since the 2002 appraisal
was conducted. However, it is not a reviewing court’s function to resolve conflicts in the
evidence or pass on the credibility of witnesses. See Stoudemire v Stoudemire, 248 Mich App
325, 339; 639 NW2d 274 (2001). Rather, we must give special deference to the trial court’s
findings. MCR 2.613(C); Draggoo, supra at 429. Affording such deference here, we find no
clear error in the trial court’s conclusion regarding the equity in the parties’ marital home.
Furthermore, defendant failed to establish that the trial court’s decision to award $5,000 of the
equity to plaintiff was inequitable. The trial court’s decision to award one-half of the equity in
the home to plaintiff was consistent with its goal of fashioning a "roughly congruent" property
distribution in this case. See Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).
Sunday, October 21, 2007
Grandparents
Issues: Grandparent visitation; Court:
Michigan Court of Appeals (Published) The case originated in Wayne County Case Name: Brinkley v. Brinkley 10/16/2007 e-Journal Number: 37353 Judge(s): Per Curiam - Wilder, Borrello, and Beckering
On remand from the Supreme Court sending the case back to the Michigan Court of Appeals “for plenary consideration of the grandparents-maternal grandparents’ constitutional issue,” the court held MCL 722.27b(5) does not unconstitutionally violate the defendants-grandparents’ due process or equal protection rights.
722.27b Order for grandparenting time; circumstances; acknowledgment of parentage; commencement of action; procedures; affidavit; notice; opposing affidavit; hearing; basis for entry of order; condition; record; court mediation; frequency of filing complaint or motion seeking order; attorney fees; order prohibiting change of domicile of grandchild; effect of entry of order; modifying or terminating order. (5).
If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3).
This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.
http://www.legislature.mi.gov/(S(jxtdsk45px1nm455buhaai55))/mileg.aspx?page=getObject&objectName=mcl-722-27b
The Grandparents, the Bacas, had visited their grand-children frequently , taken them on vacations and bought toys after the divorce.
Following a divorce, the defendant-mother became estranged from defendants and denied them further contact with the children. She/childrens mother persuaded the plaintiff-father to do the same.
The Bocas the maternal grandparents argued MCL 722.27b(5) , the state Law that controls grandparent visitation rights, denies them their substantive due process right to maintain a familial relationship, which is in their grandchildren’s best interests.
The Bocas/Defendants contended they have a fundamental right to maintain a relationship with their grandchildren and, therefore, the strict scrutiny test applies.
The court held MCL 722.27b(5) is rationally related to the legitimate goal of protecting and encouraging the grandparent-grandchild relationship without infringing on the parents’ fundamental right to manage the upbringing of their children.
MCL 722.27b was amended to avoid the constitutional deficiencies found in the previous statute. As amended, the statute affords broad deference to parents by limiting the circumstances in which grandparents may seek visitation, by imposing the burden of proof on grandparents, and by requiring dismissal of petitions for grandparenting time when two fit parents jointly oppose visitation.
Subject to specific exceptions, MCL 722.27b grants absolute deference to parents who have an intact marriage or domestic relationship, and to fit parents who unanimously oppose visitation. The statute grants qualified deference in four circumstances.
None of the circumstances are implicated where a child’s natural parents are both fit and both oppose grandparent visitation as in this case.
The issues decided in this case were: Whether MCL 722.27b(5) violates the defendants-maternal grandparents’ constitutional rights to due process and equal protection; Substantive due process challenge to the constitutionality of MCL 722.27b(5); Morreale v. Department of Cmty. Health; Keenan v. Dawson; DeRose v. DeRose; Troxel v. Granville; Tolksdorf v. Griffith; W. A. Foote Mem’l Hosp. v. City of Jackson; Frame v. Nehls; Whether defendants have a fundamental right to maintain a relationship with their grandchildren; Johnson v. White; In re Morton; In re Clausen; Whether the strict scrutiny or rational test applied; Whether MCL 722.27b(5) deprives defendants of procedural due process; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Morales v. Michigan Parole Bd. In this situation, MCL 722.27b(5) was rationally related to the legitimate purpose of preserving the fit parents’ fundamental right in managing the care, custody, and control of their children. -
Terry Bankert attorneybankert@yahoo.com or http://attorneybankert.com/ 21104
Michigan Court of Appeals (Published) The case originated in Wayne County Case Name: Brinkley v. Brinkley 10/16/2007 e-Journal Number: 37353 Judge(s): Per Curiam - Wilder, Borrello, and Beckering
On remand from the Supreme Court sending the case back to the Michigan Court of Appeals “for plenary consideration of the grandparents-maternal grandparents’ constitutional issue,” the court held MCL 722.27b(5) does not unconstitutionally violate the defendants-grandparents’ due process or equal protection rights.
722.27b Order for grandparenting time; circumstances; acknowledgment of parentage; commencement of action; procedures; affidavit; notice; opposing affidavit; hearing; basis for entry of order; condition; record; court mediation; frequency of filing complaint or motion seeking order; attorney fees; order prohibiting change of domicile of grandchild; effect of entry of order; modifying or terminating order. (5).
If 2 fit parents sign an affidavit stating that they both oppose an order for grandparenting time, the court shall dismiss a complaint or motion seeking an order for grandparenting time filed under subsection (3).
This subsection does not apply if 1 of the fit parents is a stepparent who adopted a child under the Michigan adoption code, chapter X of the probate code of 1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent seeking the order is the natural or adoptive parent of a parent of the child who is deceased or whose parental rights have been terminated.
http://www.legislature.mi.gov/(S(jxtdsk45px1nm455buhaai55))/mileg.aspx?page=getObject&objectName=mcl-722-27b
The Grandparents, the Bacas, had visited their grand-children frequently , taken them on vacations and bought toys after the divorce.
Following a divorce, the defendant-mother became estranged from defendants and denied them further contact with the children. She/childrens mother persuaded the plaintiff-father to do the same.
The Bocas the maternal grandparents argued MCL 722.27b(5) , the state Law that controls grandparent visitation rights, denies them their substantive due process right to maintain a familial relationship, which is in their grandchildren’s best interests.
The Bocas/Defendants contended they have a fundamental right to maintain a relationship with their grandchildren and, therefore, the strict scrutiny test applies.
The court held MCL 722.27b(5) is rationally related to the legitimate goal of protecting and encouraging the grandparent-grandchild relationship without infringing on the parents’ fundamental right to manage the upbringing of their children.
MCL 722.27b was amended to avoid the constitutional deficiencies found in the previous statute. As amended, the statute affords broad deference to parents by limiting the circumstances in which grandparents may seek visitation, by imposing the burden of proof on grandparents, and by requiring dismissal of petitions for grandparenting time when two fit parents jointly oppose visitation.
Subject to specific exceptions, MCL 722.27b grants absolute deference to parents who have an intact marriage or domestic relationship, and to fit parents who unanimously oppose visitation. The statute grants qualified deference in four circumstances.
None of the circumstances are implicated where a child’s natural parents are both fit and both oppose grandparent visitation as in this case.
The issues decided in this case were: Whether MCL 722.27b(5) violates the defendants-maternal grandparents’ constitutional rights to due process and equal protection; Substantive due process challenge to the constitutionality of MCL 722.27b(5); Morreale v. Department of Cmty. Health; Keenan v. Dawson; DeRose v. DeRose; Troxel v. Granville; Tolksdorf v. Griffith; W. A. Foote Mem’l Hosp. v. City of Jackson; Frame v. Nehls; Whether defendants have a fundamental right to maintain a relationship with their grandchildren; Johnson v. White; In re Morton; In re Clausen; Whether the strict scrutiny or rational test applied; Whether MCL 722.27b(5) deprives defendants of procedural due process; Hinky Dinky Supermarket, Inc. v. Department of Cmty. Health; Morales v. Michigan Parole Bd. In this situation, MCL 722.27b(5) was rationally related to the legitimate purpose of preserving the fit parents’ fundamental right in managing the care, custody, and control of their children. -
Terry Bankert attorneybankert@yahoo.com or http://attorneybankert.com/ 21104
Tuesday, October 16, 2007
More on Global Warming
More on Global Warming that I will move to my Good Morning Flint Site at
Global warming could further damage Michigan's economyThis review posted on Good Morning Flint,Michigan USAhttp://goodmorningflint.blogspot.com/
Global warming could further damage Michigan's economyThis review posted on Good Morning Flint,Michigan USAhttp://goodmorningflint.blogspot.com/
Sunday, October 14, 2007
Global Warming
GOOD MORNING FLINT
10/15/07 By Terry Bankert
Posted to Flint Talk at
http://flinttalk.com/viewtopic.php?p=16637#16637
and
Flint Citizen
http://groups.yahoo.com/group/Flintcitizen/
I haven’t paid much attention to the debate over global warming. I guess it takes a Vice President to write a book [I have not read the book], win an Oscar [I have not seen the movie] and accept a Nobel Peace prize.
Okay Al Gore you have my attention. How to learn more quickly?
I knew there was this outfit called the Green Party.
SO I Googled it. Beats buying a book. The following is from the 2004 Green Party Platform As ratified at the 2004 Green National Convention in Milwaukee, WI. http://www.gp.org/platform/2004/ecology.html#753914
As usual from this point on my comments until –end--if any will be [-trb], no other comments will be added and if deleated will show as ...
–begin--
Earth's atmosphere is in great danger due to man-made chemicals and hydrocarbon emissions. Chloro-fluorocarbons, hydrochloro-fluorocarbons, and other related ozone-depleting substances should be banned as soon as is possible. [I have a ways to go. I don't know what products these are.-trb]
The Green Party urges the U.S. Congress to act immediately to address the critical global warming and climate change issues. When the U.S. Senate voted 95-to-0 to oppose any global warming treaty that does not also bind developing countries to specific, if smaller, carbon emissions reductions in the future, which many industrializing countries oppose, it put a roadblock in the way of progress by all nations. [This was in 2004-trb]
With only 4% of the earth's people, the United States produces more than 20% of carbon emissions. [ I would think that we have a great responsibility.-trb]
From 1990 to 1996, total U.S. emissions grew by an amount equal to what Brazil and Indonesia produce every year. Per capita, the United States emits 85% more than Germany, twice as much as England and Japan, and currently nearly 10-times as much as China. [ I bet the rest of the world thinks we have an environmental debt to pay.-trb]
Climate change presents very real economic and social opportunities for new and sustainable jobs from new energy technologies, including both energy efficiency and renewables. Yet, too often, the focus of debate has been only on the pain of adjustment to carbon reductions, This is because of the influence of multinational business on government policies. We must implement the following policies if we are to make a start on protecting our global climate:
1. An early target must be set to prevent emissions from rising so far that future reductions become even more difficult.
2. Avoiding loopholes is even more important now than an ambitious target. Unless a very ambitious target is set, which now seems unlikely, allowing sinks and trading within the protocol will create such loopholes that no real reductions will occur. Trading and sinks must be left until there is much more scientific precision in how they are measured.
3. Targets are not enough without credible policies and measures to achieve them. We urge all governments to table a list of the policies and measures they intend to adopt to attain their target, for example eco-taxes and energy performance standards.
4. Nuclear power is not an acceptable alternative to fossil energy. We should not accept country commitments that depend on increasing nuclear capability. We must join the solar age.
5. We endorse the Contraction and Convergence model under discussion at international talks (which as proposed would eventually give every human being an equal right to the atmosphere) as the most practical way to achieve justice and participation for developing countries.
6. As a nation, we must implement public and private initiatives at every level to support the Global Climate Treaty signed at the Earth Summit in 1992, committing industrial nations within a time framework to reducing emissions to 1990 levels.
7. The most authoritative assessment to date concludes that a worldwide carbon dioxide emissions reduction of 50-70 percent is necessary to contain climate change. The Kyoto Climate Protocol in 1998 falls far short, calling for only a five percent reduction. Nonetheless, the agreement is an important first step that all parties - especially the U.S. - should ratify as soon as possible.
8. We must drastically reduce, then eliminate, the use of fossil fuels. We must use energy more efficiently, and from clean, renewable sources. We must preserve the many valuable natural services including climactic stability provided by intact ecosystems....
9. If we fail to summon the political will now to make these investments, the costs of climatic disruptions will almost certainly force us to make them later at a greater expense. Greenhouse gases and the threat of global warming must be addressed by the international community in concert, through international treaties and conventions, with the industrial nations at the forefront of this vital effort. —end–
Now this was two years ago, Al Gore and the Union of Concerned Scientist seem to have a lot to say. Others say this Global Warming is a falsity being promoted by the left.
How can it not be happening, global warming?
How can we opposed moving to new technologies?
The issue is far to complicated to spout off on. Any site recommendations are appreciated.
Yes Al Gore I am going to read your book and watch your movie. Stay tuned. Terry Bankert http://groups.yahoo.com/group/Flintcitizen/
20394
10/15/07 By Terry Bankert
Posted to Flint Talk at
http://flinttalk.com/viewtopic.php?p=16637#16637
and
Flint Citizen
http://groups.yahoo.com/group/Flintcitizen/
I haven’t paid much attention to the debate over global warming. I guess it takes a Vice President to write a book [I have not read the book], win an Oscar [I have not seen the movie] and accept a Nobel Peace prize.
Okay Al Gore you have my attention. How to learn more quickly?
I knew there was this outfit called the Green Party.
SO I Googled it. Beats buying a book. The following is from the 2004 Green Party Platform As ratified at the 2004 Green National Convention in Milwaukee, WI. http://www.gp.org/platform/2004/ecology.html#753914
As usual from this point on my comments until –end--if any will be [-trb], no other comments will be added and if deleated will show as ...
–begin--
Earth's atmosphere is in great danger due to man-made chemicals and hydrocarbon emissions. Chloro-fluorocarbons, hydrochloro-fluorocarbons, and other related ozone-depleting substances should be banned as soon as is possible. [I have a ways to go. I don't know what products these are.-trb]
The Green Party urges the U.S. Congress to act immediately to address the critical global warming and climate change issues. When the U.S. Senate voted 95-to-0 to oppose any global warming treaty that does not also bind developing countries to specific, if smaller, carbon emissions reductions in the future, which many industrializing countries oppose, it put a roadblock in the way of progress by all nations. [This was in 2004-trb]
With only 4% of the earth's people, the United States produces more than 20% of carbon emissions. [ I would think that we have a great responsibility.-trb]
From 1990 to 1996, total U.S. emissions grew by an amount equal to what Brazil and Indonesia produce every year. Per capita, the United States emits 85% more than Germany, twice as much as England and Japan, and currently nearly 10-times as much as China. [ I bet the rest of the world thinks we have an environmental debt to pay.-trb]
Climate change presents very real economic and social opportunities for new and sustainable jobs from new energy technologies, including both energy efficiency and renewables. Yet, too often, the focus of debate has been only on the pain of adjustment to carbon reductions, This is because of the influence of multinational business on government policies. We must implement the following policies if we are to make a start on protecting our global climate:
1. An early target must be set to prevent emissions from rising so far that future reductions become even more difficult.
2. Avoiding loopholes is even more important now than an ambitious target. Unless a very ambitious target is set, which now seems unlikely, allowing sinks and trading within the protocol will create such loopholes that no real reductions will occur. Trading and sinks must be left until there is much more scientific precision in how they are measured.
3. Targets are not enough without credible policies and measures to achieve them. We urge all governments to table a list of the policies and measures they intend to adopt to attain their target, for example eco-taxes and energy performance standards.
4. Nuclear power is not an acceptable alternative to fossil energy. We should not accept country commitments that depend on increasing nuclear capability. We must join the solar age.
5. We endorse the Contraction and Convergence model under discussion at international talks (which as proposed would eventually give every human being an equal right to the atmosphere) as the most practical way to achieve justice and participation for developing countries.
6. As a nation, we must implement public and private initiatives at every level to support the Global Climate Treaty signed at the Earth Summit in 1992, committing industrial nations within a time framework to reducing emissions to 1990 levels.
7. The most authoritative assessment to date concludes that a worldwide carbon dioxide emissions reduction of 50-70 percent is necessary to contain climate change. The Kyoto Climate Protocol in 1998 falls far short, calling for only a five percent reduction. Nonetheless, the agreement is an important first step that all parties - especially the U.S. - should ratify as soon as possible.
8. We must drastically reduce, then eliminate, the use of fossil fuels. We must use energy more efficiently, and from clean, renewable sources. We must preserve the many valuable natural services including climactic stability provided by intact ecosystems....
9. If we fail to summon the political will now to make these investments, the costs of climatic disruptions will almost certainly force us to make them later at a greater expense. Greenhouse gases and the threat of global warming must be addressed by the international community in concert, through international treaties and conventions, with the industrial nations at the forefront of this vital effort. —end–
Now this was two years ago, Al Gore and the Union of Concerned Scientist seem to have a lot to say. Others say this Global Warming is a falsity being promoted by the left.
How can it not be happening, global warming?
How can we opposed moving to new technologies?
The issue is far to complicated to spout off on. Any site recommendations are appreciated.
Yes Al Gore I am going to read your book and watch your movie. Stay tuned. Terry Bankert http://groups.yahoo.com/group/Flintcitizen/
20394
Monday, October 08, 2007
Changing Custody of Children
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
Leder v Leder 7/26/07 NO:275237
Posted here with modification of style by"
http://attorneybankert.com/
full article
http://terrybankert.blogspot.com/
In a recent case a Mother appeals as of right the trial court’s order denying her motion to change the custody of the minor children born during her marriage to defendant. On cross-appeal, defendant challenges the trial court’s determination that he had been uncooperative with plaintiff regarding legal issues related to the children and the court’s imposition of additional requirements to ensure cooperation in the order. The Court of Appeals did not disagree with the trial court.
I. Basic Facts And Procedure
The parties were divorced by consent judgment in April, 2003. Pursuant to that
judgment, defendant was awarded primary physical custody of the parties’ two minor children.
Plaintiff was awarded a significant amount of parenting time provided that plaintiff seek
psychological evaluation and treatment. The parties incorporated a prior order of the trial court,
entitled "Order That Parties Cooperate in Parenting Their Minor Children," into the judgment.
That portion of the judgment of divorce required the parties to respectfully and courteously
communicate with each other regarding issues related to the children. Following the entry of the
judgment of divorce, the parties continued to disagree regarding the care of the minor children.
Plaintiff alleged that defendant and his new wife fabricated a story that plaintiff hired a hit man
to kill them. She alleged that they invented this story to support their attempts to change the
children’s domicile to Arkansas. Defendant’s current wife, Susan Leder, obtained a personal
protection order against plaintiff based on these allegations.
The parties also continually argued regarding the amount of child support that plaintiff
should be required to pay. Apparently, plaintiff had never maintained employment. She had
previously worked at a fast food restaurant for two years, but quit shortly after marrying
defendant. Plaintiff lived with her mother and allegedly provided 20 hours of caretaking services for her a week in exchange for room and board. Plaintiff promised, but never provided, proof that her mother required such full-time care, even though she alleged that her mother suffered from rheumatoid arthritis. In any event, plaintiff refused to seek employment outside of the home. Defendant, on the other hand, made less than $500 a week as a salesman and often had to rely on his parents to provide free childcare.
Following various motions to change child support and recommendations from the FOC
to impute income to plaintiff, the parties entered a consent order in March, 2006, by which
plaintiff agreed to pay $71 each month in child support, $13 for ordinary healthcare costs, $20
for the children’s health insurance, and 28 percent of the children’s uninsured medical expenses.
Plaintiff filed a motion to change the custody of the minor children in October, 2006.
Plaintiff alleged that, despite the increase in child support, defendant had neglected the minor
children’s medical and dental needs by failing to take them to regular dental check-ups for the
prior two years and by discontinuing the children’s prescription medications without the
supervision of a doctor.
Plaintiff further alleged that defendant instructed the children’s doctors
to deny her access to the children’s medical records and told the doctors that plaintiff was
"crazy." Plaintiff claimed that defendant’s actions amounted to a change of circumstances and
required the trial court to conduct a hearing to reevaluate the best interest factors related to child custody, pursuant to MCL 722.23.
In response, defendant asserted that the older child was taken off of Strattera because his
behavior no longer warranted the prescription. Defendant asserted that he weaned the older child off the medication based on the doctor’s instructions. Defendant further asserted that both minor children had never visited a dentist until he was awarded primary physical custody. Defendant admitted that the children did not receive a dental check-up every six months, but asserted that he could not afford the costs of regular visits because he did not have dental insurance.
Defendant also admitted that he had not considered orthodontic care for the children because he
needed to save funds for such treatment. Defendant denied that he had neglected the children’s
medical needs and asserted that he sought medical care for the children when warranted.
Defendant retorted that plaintiff had failed to provide quarterly reports regarding her
psychological evaluations and alleged that plaintiff abused prescription medication.
An FOC referee conducted a hearing on plaintiff’s motion in October, 2006. The referee
recommended that plaintiff’s motion to change custody be denied. However, the referee noted
that both parties had been uncooperative regarding legal issues related to the children. The
referee recommended that defendant be ordered to supply plaintiff with a copy of the children’s
health insurance cards and recommended that defendant be ordered to schedule regular dental
check-ups and physical examinations for the children. Plaintiff objected to the entry of the
recommended order without an evidentiary hearing to reevaluate the best interest factors.
Shortly thereafter, plaintiff filed a supplement to her objection to the recommendation.
Plaintiff alleged that defendant cancelled the older child’s November, 2006, dental appointment,
had not scheduled the ordered doctor appointments, and had yet to provide her with a copy of the children’s health insurance cards. Defendant responded that plaintiff had visited the children’s dentist office in November, 2006, to retrieve copies of their records. During that visit, plaintiff acted in such a disruptive and aggressive manner that the dentist wrote a letter indicating that plaintiff was no longer welcome in the office. Defendant also provided doctor notes indicating that the older child had a physical examination and reevaluation regarding his ADHD on November 13, 2006; that the younger child had a physical examination on November 27, 2006; and that the older child had a satisfactory dental check-up on November 20, 2006.
The trial court subsequently conducted a hearing regarding plaintiff’s motion for a de
novo hearing regarding the best interest factors. At that hearing, plaintiff argued that the referee had determined that defendant’s conduct amounted to medical and dental neglect and, therefore, the referee should have found a change in circumstances that warranted a reevaluation of the best interest factors. Plaintiff conceded that defendant had arranged for medical and dental check-ups for the children, but alleged that defendant failed to notify her of the dates so that she could attend. Plaintiff alleged that the older child’s doctor recommended that he remain off of Strattera solely because defendant failed to inform the doctor of the child’s continuing attention problems at school.
The trial court specifically determined that defendant’s conduct did not amount to neglect
of the minor children’s medical and dental care. The trial court agreed with the referee that the
parties had communicated poorly regarding the children’s medical appointments. The trial court
also agreed that the poor communication did not amount to a change of circumstances requiring
a de novo hearing regarding the best interest factors. The trial court then adopted the referee’s
recommended order, which included requirements that the children receive regular medical and
dental care, that the parties cooperate in relation to those appointments, and that defendant
provide plaintiff with a copy of the children’s health insurance cards.
II. No Change In Circumstances Or Proper Cause For A Change Of Custody
First, plaintiff challenges the trial court’s failure to conduct a de novo hearing regarding
the best interest factors of MCL 722.23 based on evidence that defendant had neglected the
children’s medical and dental care.
This Court applies three standards of review in custody cases. The great weight of the
evidence standard applies to all findings of fact. A trial court’s findings regarding the existence
of an established custodial environment and regarding each custody factor should be affirmed
unless the evidence clearly preponderates in the opposite direction. An abuse of discretion
standard applies to the trial court’s discretionary rulings such as custody decisions. Questions of
law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly
chooses, interprets, or applies the law. Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). [Citations omitted.]
A trial court may modify a custody award when the moving party establishes that a
"change in circumstances" has occurred or when the party establishes proper cause for
reconsideration. MCL 722.27(1)(c); Phillips v Jordan, 241 Mich App 17, 24; 614 NW2d 183
(2000). To establish "proper cause," the moving party must present evidence of "one or more
appropriate grounds that have or could have a significant effect on the child’s life to the extent
that a reevaluation of the child’s custodial situation should be undertaken." Vodvarka, supra at
511. To establish a "change in circumstances," the moving party "must prove that, since the
entry of the last custody order, the conditions surrounding custody of the child, which have or
could have a significant effect on the child’s well-being, have materially changed." Id. at 513.
The moving party must establish something beyond "normal life changes" in order to justify the
court’s reconsideration. Id. at 513-514. "[W]hen a modification of custody would change the
established custodial environment of a child, the moving party must show by clear and
convincing evidence that it is in the child’s best interest." Phillips, supra at 25. However, the
trial court may not reconsider the best interest factors until the moving party has established
proper cause or a change in circumstances by a preponderance of the evidence. Vodvarka, supra
at 509. In determining whether a plaintiff has established proper grounds for reconsidering the
existing custody order, a trial court may use the best interest factors of MCL 722.23 as a guide.
Vodvarka, supra at 511-512. MCL 722.23(c) requires the court to consider the "capacity and
disposition of the parties involved to provide the child with . . . medical care."
In this case, plaintiff failed to show "proper cause" or a "change in circumstances" in
relation to this factor. Defendant asserted that he lacked dental insurance and, therefore, took the minor children to the dentist only once a year and postponed consideration of orthodontic
treatment. Defendant maintained the same employment prior to the divorce and, therefore,
lacked dental insurance throughout his marriage to plaintiff as well. There is no evidence that
plaintiff and defendant took the children to the dentist more frequently when they were married.
In relation to the children’s medical treatment, we agree that defendant acted
unreasonably in failing to take the older child for follow-up visits after weaning him off of
medication for his attention deficit/hyperactivity disorder. Plaintiff testified that the child’s
condition was so severe that he had been institutionalized in the past. However, there is no
evidence that plaintiff would be more capable of providing medical care. Plaintiff was
unemployed by choice and lacked medical insurance. Defendant repeatedly asked the trial court
and FOC to increase the amount of child support to allow him to pay for the children’s medical
expenses. In response, plaintiff pleaded poverty. Furthermore, the children are 12 and 14 years
old and, therefore, are old enough to tell their parents when they are not well. There is no record indication that defendant neglected to take the children to the doctor when necessary for urgent care. There is also no indication that the children had not received all recommended
vaccinations and medical tests. Accordingly, we agree with the trial court that plaintiff failed to
show a change in circumstances or proper cause for a change of custody. We also agree with the
trial court’s determination that defendant had not neglected the children’s medical and dental
care.
III. Defendant Failed To Cooperate With Plaintiff
On cross appeal, defendant challenges the trial court’s imposition of additional
requirements despite the determination that defendant did not neglected the children’s medical
and dental needs.
When reviewing a judgment of the trial court sitting without a jury, we review a trial
court’s findings of fact for clear error and conclusions of law de novo. In reviewing the trial
court’s findings of fact, we must give deference to the trial court’s determinations of witness
credibility. MCR 2.613(C); GlenLake-Crystal River Watershed Riparians v GlenLake Ass'n, 264
Mich App 523, 531; 695 NW2d 508 (2004). "A finding is clearly erroneous where, although
there is evidence to support the finding, the reviewing court is left with the definite and firm
conviction that a mistake has been made." Ambs v Kalamazoo Co Rd Comm, 255 Mich App
637, 652; 662 NW2d 424 (2003).
We first note that we agree with plaintiff that defendant has improperly attempted to
expand the record on appeal by presenting a psychological evaluation report that was not
considered by the trial court. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649
NW2d 783 (2002). However, contrary to plaintiff’s contention, defendant has not improperly
expanded the record on appeal by presenting the transcript of the February 27, 2007, child
protective proceeding, because this Court entered an order that allowed defendant to expand the record on appeal in this regard. Leder v Leder, unpublished order of the Court of Appeals,
entered March 23, 2007 (Docket No. 275237).
In any event, we find that the trial court’s factual determination that defendant had been
uncooperative with plaintiff regarding the children’s medical and dental care comports with the
evidence. The trial court determined that defendant did not neglect the children’s medical and
dental needs. However, defendant admitted that he did not inform plaintiff of the younger
child’s dentist appointments. Defendant alleged that he notified plaintiff in advance of the older
child’s doctor appointments during which he was weaned off of medication and asserted that
plaintiff failed to attend those appointments. Defendant conceded that he should take the
children to the pediatrician for an annual physical. Given defendant’s admissions and
concessions, the trial court’s factual determination that defendant had violated the consent
judgment of divorce by failing to cooperate with plaintiff was not clearly erroneous.
C O U R T O F A P P E A L S
Leder v Leder 7/26/07 NO:275237
Posted here with modification of style by"
http://attorneybankert.com/
full article
http://terrybankert.blogspot.com/
In a recent case a Mother appeals as of right the trial court’s order denying her motion to change the custody of the minor children born during her marriage to defendant. On cross-appeal, defendant challenges the trial court’s determination that he had been uncooperative with plaintiff regarding legal issues related to the children and the court’s imposition of additional requirements to ensure cooperation in the order. The Court of Appeals did not disagree with the trial court.
I. Basic Facts And Procedure
The parties were divorced by consent judgment in April, 2003. Pursuant to that
judgment, defendant was awarded primary physical custody of the parties’ two minor children.
Plaintiff was awarded a significant amount of parenting time provided that plaintiff seek
psychological evaluation and treatment. The parties incorporated a prior order of the trial court,
entitled "Order That Parties Cooperate in Parenting Their Minor Children," into the judgment.
That portion of the judgment of divorce required the parties to respectfully and courteously
communicate with each other regarding issues related to the children. Following the entry of the
judgment of divorce, the parties continued to disagree regarding the care of the minor children.
Plaintiff alleged that defendant and his new wife fabricated a story that plaintiff hired a hit man
to kill them. She alleged that they invented this story to support their attempts to change the
children’s domicile to Arkansas. Defendant’s current wife, Susan Leder, obtained a personal
protection order against plaintiff based on these allegations.
The parties also continually argued regarding the amount of child support that plaintiff
should be required to pay. Apparently, plaintiff had never maintained employment. She had
previously worked at a fast food restaurant for two years, but quit shortly after marrying
defendant. Plaintiff lived with her mother and allegedly provided 20 hours of caretaking services for her a week in exchange for room and board. Plaintiff promised, but never provided, proof that her mother required such full-time care, even though she alleged that her mother suffered from rheumatoid arthritis. In any event, plaintiff refused to seek employment outside of the home. Defendant, on the other hand, made less than $500 a week as a salesman and often had to rely on his parents to provide free childcare.
Following various motions to change child support and recommendations from the FOC
to impute income to plaintiff, the parties entered a consent order in March, 2006, by which
plaintiff agreed to pay $71 each month in child support, $13 for ordinary healthcare costs, $20
for the children’s health insurance, and 28 percent of the children’s uninsured medical expenses.
Plaintiff filed a motion to change the custody of the minor children in October, 2006.
Plaintiff alleged that, despite the increase in child support, defendant had neglected the minor
children’s medical and dental needs by failing to take them to regular dental check-ups for the
prior two years and by discontinuing the children’s prescription medications without the
supervision of a doctor.
Plaintiff further alleged that defendant instructed the children’s doctors
to deny her access to the children’s medical records and told the doctors that plaintiff was
"crazy." Plaintiff claimed that defendant’s actions amounted to a change of circumstances and
required the trial court to conduct a hearing to reevaluate the best interest factors related to child custody, pursuant to MCL 722.23.
In response, defendant asserted that the older child was taken off of Strattera because his
behavior no longer warranted the prescription. Defendant asserted that he weaned the older child off the medication based on the doctor’s instructions. Defendant further asserted that both minor children had never visited a dentist until he was awarded primary physical custody. Defendant admitted that the children did not receive a dental check-up every six months, but asserted that he could not afford the costs of regular visits because he did not have dental insurance.
Defendant also admitted that he had not considered orthodontic care for the children because he
needed to save funds for such treatment. Defendant denied that he had neglected the children’s
medical needs and asserted that he sought medical care for the children when warranted.
Defendant retorted that plaintiff had failed to provide quarterly reports regarding her
psychological evaluations and alleged that plaintiff abused prescription medication.
An FOC referee conducted a hearing on plaintiff’s motion in October, 2006. The referee
recommended that plaintiff’s motion to change custody be denied. However, the referee noted
that both parties had been uncooperative regarding legal issues related to the children. The
referee recommended that defendant be ordered to supply plaintiff with a copy of the children’s
health insurance cards and recommended that defendant be ordered to schedule regular dental
check-ups and physical examinations for the children. Plaintiff objected to the entry of the
recommended order without an evidentiary hearing to reevaluate the best interest factors.
Shortly thereafter, plaintiff filed a supplement to her objection to the recommendation.
Plaintiff alleged that defendant cancelled the older child’s November, 2006, dental appointment,
had not scheduled the ordered doctor appointments, and had yet to provide her with a copy of the children’s health insurance cards. Defendant responded that plaintiff had visited the children’s dentist office in November, 2006, to retrieve copies of their records. During that visit, plaintiff acted in such a disruptive and aggressive manner that the dentist wrote a letter indicating that plaintiff was no longer welcome in the office. Defendant also provided doctor notes indicating that the older child had a physical examination and reevaluation regarding his ADHD on November 13, 2006; that the younger child had a physical examination on November 27, 2006; and that the older child had a satisfactory dental check-up on November 20, 2006.
The trial court subsequently conducted a hearing regarding plaintiff’s motion for a de
novo hearing regarding the best interest factors. At that hearing, plaintiff argued that the referee had determined that defendant’s conduct amounted to medical and dental neglect and, therefore, the referee should have found a change in circumstances that warranted a reevaluation of the best interest factors. Plaintiff conceded that defendant had arranged for medical and dental check-ups for the children, but alleged that defendant failed to notify her of the dates so that she could attend. Plaintiff alleged that the older child’s doctor recommended that he remain off of Strattera solely because defendant failed to inform the doctor of the child’s continuing attention problems at school.
The trial court specifically determined that defendant’s conduct did not amount to neglect
of the minor children’s medical and dental care. The trial court agreed with the referee that the
parties had communicated poorly regarding the children’s medical appointments. The trial court
also agreed that the poor communication did not amount to a change of circumstances requiring
a de novo hearing regarding the best interest factors. The trial court then adopted the referee’s
recommended order, which included requirements that the children receive regular medical and
dental care, that the parties cooperate in relation to those appointments, and that defendant
provide plaintiff with a copy of the children’s health insurance cards.
II. No Change In Circumstances Or Proper Cause For A Change Of Custody
First, plaintiff challenges the trial court’s failure to conduct a de novo hearing regarding
the best interest factors of MCL 722.23 based on evidence that defendant had neglected the
children’s medical and dental care.
This Court applies three standards of review in custody cases. The great weight of the
evidence standard applies to all findings of fact. A trial court’s findings regarding the existence
of an established custodial environment and regarding each custody factor should be affirmed
unless the evidence clearly preponderates in the opposite direction. An abuse of discretion
standard applies to the trial court’s discretionary rulings such as custody decisions. Questions of
law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly
chooses, interprets, or applies the law. Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). [Citations omitted.]
A trial court may modify a custody award when the moving party establishes that a
"change in circumstances" has occurred or when the party establishes proper cause for
reconsideration. MCL 722.27(1)(c); Phillips v Jordan, 241 Mich App 17, 24; 614 NW2d 183
(2000). To establish "proper cause," the moving party must present evidence of "one or more
appropriate grounds that have or could have a significant effect on the child’s life to the extent
that a reevaluation of the child’s custodial situation should be undertaken." Vodvarka, supra at
511. To establish a "change in circumstances," the moving party "must prove that, since the
entry of the last custody order, the conditions surrounding custody of the child, which have or
could have a significant effect on the child’s well-being, have materially changed." Id. at 513.
The moving party must establish something beyond "normal life changes" in order to justify the
court’s reconsideration. Id. at 513-514. "[W]hen a modification of custody would change the
established custodial environment of a child, the moving party must show by clear and
convincing evidence that it is in the child’s best interest." Phillips, supra at 25. However, the
trial court may not reconsider the best interest factors until the moving party has established
proper cause or a change in circumstances by a preponderance of the evidence. Vodvarka, supra
at 509. In determining whether a plaintiff has established proper grounds for reconsidering the
existing custody order, a trial court may use the best interest factors of MCL 722.23 as a guide.
Vodvarka, supra at 511-512. MCL 722.23(c) requires the court to consider the "capacity and
disposition of the parties involved to provide the child with . . . medical care."
In this case, plaintiff failed to show "proper cause" or a "change in circumstances" in
relation to this factor. Defendant asserted that he lacked dental insurance and, therefore, took the minor children to the dentist only once a year and postponed consideration of orthodontic
treatment. Defendant maintained the same employment prior to the divorce and, therefore,
lacked dental insurance throughout his marriage to plaintiff as well. There is no evidence that
plaintiff and defendant took the children to the dentist more frequently when they were married.
In relation to the children’s medical treatment, we agree that defendant acted
unreasonably in failing to take the older child for follow-up visits after weaning him off of
medication for his attention deficit/hyperactivity disorder. Plaintiff testified that the child’s
condition was so severe that he had been institutionalized in the past. However, there is no
evidence that plaintiff would be more capable of providing medical care. Plaintiff was
unemployed by choice and lacked medical insurance. Defendant repeatedly asked the trial court
and FOC to increase the amount of child support to allow him to pay for the children’s medical
expenses. In response, plaintiff pleaded poverty. Furthermore, the children are 12 and 14 years
old and, therefore, are old enough to tell their parents when they are not well. There is no record indication that defendant neglected to take the children to the doctor when necessary for urgent care. There is also no indication that the children had not received all recommended
vaccinations and medical tests. Accordingly, we agree with the trial court that plaintiff failed to
show a change in circumstances or proper cause for a change of custody. We also agree with the
trial court’s determination that defendant had not neglected the children’s medical and dental
care.
III. Defendant Failed To Cooperate With Plaintiff
On cross appeal, defendant challenges the trial court’s imposition of additional
requirements despite the determination that defendant did not neglected the children’s medical
and dental needs.
When reviewing a judgment of the trial court sitting without a jury, we review a trial
court’s findings of fact for clear error and conclusions of law de novo. In reviewing the trial
court’s findings of fact, we must give deference to the trial court’s determinations of witness
credibility. MCR 2.613(C); GlenLake-Crystal River Watershed Riparians v GlenLake Ass'n, 264
Mich App 523, 531; 695 NW2d 508 (2004). "A finding is clearly erroneous where, although
there is evidence to support the finding, the reviewing court is left with the definite and firm
conviction that a mistake has been made." Ambs v Kalamazoo Co Rd Comm, 255 Mich App
637, 652; 662 NW2d 424 (2003).
We first note that we agree with plaintiff that defendant has improperly attempted to
expand the record on appeal by presenting a psychological evaluation report that was not
considered by the trial court. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649
NW2d 783 (2002). However, contrary to plaintiff’s contention, defendant has not improperly
expanded the record on appeal by presenting the transcript of the February 27, 2007, child
protective proceeding, because this Court entered an order that allowed defendant to expand the record on appeal in this regard. Leder v Leder, unpublished order of the Court of Appeals,
entered March 23, 2007 (Docket No. 275237).
In any event, we find that the trial court’s factual determination that defendant had been
uncooperative with plaintiff regarding the children’s medical and dental care comports with the
evidence. The trial court determined that defendant did not neglect the children’s medical and
dental needs. However, defendant admitted that he did not inform plaintiff of the younger
child’s dentist appointments. Defendant alleged that he notified plaintiff in advance of the older
child’s doctor appointments during which he was weaned off of medication and asserted that
plaintiff failed to attend those appointments. Defendant conceded that he should take the
children to the pediatrician for an annual physical. Given defendant’s admissions and
concessions, the trial court’s factual determination that defendant had violated the consent
judgment of divorce by failing to cooperate with plaintiff was not clearly erroneous.
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