This is a Genesee County/ Flint Family Law, post Divorce child support collection case. Terry Bankert is a Flint Divorce Lawyer here sharing a review of a case that raised important family law issues.
Issues:
Whether the trial court properly granted the defendants' motion for summary disposition; in a post divorce case. Res judicata; Adair v. Michigan;
Fraudulent transfer of assets affecting child support; Foodland Distrib. v. Al-Naimi; Coleman-Nichols v. Tixon Corp.; MCL 566.31(1)
See;Court: Michigan Court of Appeals (Unpublished),Case Name: (W) v. (W)
e-Journal Number: 43964, Judge(s): Per Curiam - Murray, Markey, and Borrello
UNPUBLISHED, 6, 2009, v No. 287513,Genesee Circuit Court, LC No. 06-084474-CZ.
[For the purpose of presentation this case has been modified. Do not rely on its contents without assistance of an attorney. trb]
EX HUSBAND WINS
Since all the issues which could have been litigated were decided by a family court hearing referee and if the fraudulent transfer of assets issue had been raised by defendant-EX HUSBAND (as it could have been) he would have been in privity with defendant-GIRL FRIEND and res judicata would have applied, the court held the trial court correctly held plaintiff presented no evidence of a fraudulent transfer and properly granted defendants' motion for summary disposition.
The PARTIES were married, had two children, and there was a divorce in 1991.
By 2006, the children had reached majority and THE EX HUSBAND owed over $70,000 in child support.
Under the divorce judgment, he was ordered to pay half of all uninsured medical, dental, optical, and pharmaceutical expenses.
In 2003, he met and became romantically involved with (T), who was also interested in THE SAME BUSINESS, she had a business background.
She opened a BUSINESS and THE EX HUSBAND agreed to teach there two days a week. Her business flourished, but his continued to struggle financially. (T) loaned him money for his business, but his vehicle was repossessed and he closed his business with many outstanding debts.
He worked at (T) studio as an independent contractor. She did not pay him much money, but bought a car he could use and paid for other "perks." In 2006, plaintiff began to pursue THE EX HUSBAND for reimbursement of child care medical expenses she had paid. In July 2006, the referee found THE EX HUSBAND owed some money, but only for bills incurred after January 2004.
The referee found making him pay older bills would be "inequitable due to the age of the bills and the prejudice to Defendant." The order was not appealed. Plaintiff then filed this case seeking unpaid child support, "delinquent medical expenses," and rescission of "fraudulent conveyance of business and personal assets."
The trial court granted defendants' motion for summary disposition holding the request for medical expenses was barred by res judicata because it was decided by the referee and not appealed, the fraudulent transfer claim relied on a repealed statute, plaintiff failed to present any documentary evidence establishing a genuine issue of material fact, and awarded defendants $5,800 in attorney fees.
The Michigan Court of Appeals agreed and upheld the lower court decision.
I. Facts and Proceedings1
The court thought the record was not properly brought before them.
Our recitation of the facts is based upon our independent review of the deposition and other evidence. Neither parties’ brief adequately cites to the record as required by MCR 6.212(C)(7).
OFTEN WE HEAR OF EX SPOUSES THAT TRANSER THEIR ASSETS SO PARTNER CANNOT GAIN ACCESS TO THEM FOR COLLLECTION OF CHILD SUPPORT.
The ex wife complains that her ex husband has his business in the name of his partner and is hiding assets.
VIOLATION OF MCL 55.19
To move assets for the purpose of evading child support obligations, is a violation of MCL 566.19.
SUMMARY DISPOSITION, EARLIER JUDGEMENT AND RES JUDICATA
Defendants moved for summary disposition, arguing that plaintiff was collaterally attacking the earlier judgment concerning the children’s medical expenses, and that the claim for medical expenses was barred by res judicata.
WRONG STATUTE PLED, AND NO PROOF OFFERED
As for the allegation of fraudulent transfer, defendants argued that even if the correct statute had been pleaded, plaintiff presented no evidence that any transfer ever took place between THE PARTNERS.
TRIAL COURT GRANTED SUMMARY DISPOSITION.
The trial court granted defendants’ motion for summary disposition, concluding that the
request for medical expenses was barred by res judicata because it had been previously decided and not appealed.
EX WIFE STATUTE RELIED UPON HAD BEEN REPEALED
As for the fraudulent transfer allegations, the trial court held that plaintiff
relied on a repealed statute and that plaintiff failed to present any documentary evidence
establishing a genuine issue of material fact.
NO GENUINE ISSUES OF MATERIAL FACT
The trial court also granted defendants’ motion for
attorney fees, awarding $5,800.
II. Analysis
HIGHER COURT REVIEW OF LOWER COURTS GRANTING OF SUMMARY DISPOSITION.
This Court reviews de novo a trial court’s decision to grant or deny a motion for
summary disposition. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
THE EX WIFE COULD NOT MET THE REQUIREMENT TO BRING FORTH MORE INFORMATION
Although substantively admissible evidence submitted at the time of the motion must be
viewed in the light most favorable to the party opposing the motion, the non-moving party must come forward with at least some evidentiary proof, some statement of specific fact upon which to base his case. Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999); Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
RES JUDICATA
The doctrine of res judicata is employed to prevent multiple suits litigating the
same cause of action. The doctrine bars a second, subsequent action when (1) the
prior action was decided on the merits, (2) both actions involve the same parties
or their privies, and (3) the matter in the second case was, or could have been,
resolved in the first.
WHEN A CASE IS DECIDED UNLESS APPEALED YOU CANNOT REDO IT AND YOU HAVE TO RAISE ALL THE ISSUES AT ONCE, YOU CANNOT GO BACK.
This Court has taken a broad approach to the doctrine of res judicata, holding that it bars not only claims already litigated, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.
LATCHES, WAITED TOO LONG
The hearing referee upheld the original provision that THE EX HUSBAND pay half of the medical expenses, excluding only those bills she determined were so old it would be inequitable to require him to pay at this point.
THE GIRLE FRIEND BUSINESS PARTNER HAD NO OBLIGATION TO HIS KIDS
She had no obligation to pay medical expenses incurred by plaintiff’s children. Thus, all the issues that could be litigated in this matter were decided by the hearing referee; adding a party to the claim seems to be merely an attempt to avoid res judicata.
NO IMPROPER TRANSFER WAS PROVEN
The trial court also correctly held that plaintiff presented no evidence establishing a
fraudulent transfer of assets.
CLEAR AND CONVINCING EVIDENCE NEEDED
This Fraud must be proven by clear and convincing evidence and must never be presumed, although it may be established by circumstantial evidence. Foodland Distributors v Al-Naimi, 220 Mich App 453, 457-458; 559 NW2d 379 (1996).
NO FRAUDULENT INTENT PROVEN
The plaintiff must show both a transfer of assets and a fraudulent intent.
Coleman-Nichols v Tixon Corp, 203 Mich App 645, 659; 513 NW2d 441 (1994). Under the UFTA, a “‘[t]ransfer’ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease and creation of a lien or other encumbrance.” MCL 566.31(l).
TRANSFER OF NAME AND REPUTATION
The court found the partner may be using THE EX HUSBANDS name and reputation, but he cannot very well “transfer” it in the way of being able to walk away.
EX WIFE DID NOT PRESENT EVIDENCE OF FRAUDULENT INTENT
Even if he had allowed his name to be used the plaintiff has no evidence of fraudulent intent or that there were any improper transfers.
ATTORNEY FEES AWARDED WITH THE PLAINTIFF EX WIFE PAYING THE EX HUSBAND
Tax costs to defendant having prevailed in full. MCR 7.219 and awarded defendants $5,800 in attorney fees.
Posted here by
Terry Bankert
10/19/09
www.attorneybankert.com
Sunday, October 18, 2009
Monday, October 12, 2009
Father wins change in custody.
FATHER WINS CUSTODY OF THE CHILDREN, MOM APPEALS, FATHER WINS!
Issues reviewed by Flint Divorce Attorney Lawyer Terry Bankert:
There are cases in Family Law where the burden of proof is critical. Such is the case when one parent wants to change the custody order. We want children’s lives to be stable, so there should be and there is great pressure to not change the custodial environment.
The Higher courts have directed the lower court that changes to a child’s established custodial environment should be permitted only “in the most compelling cases,” Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981), and only where the moving party can show by clear and convincing evidence that the change is in the best interest of the child, MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).
In this case, the circuit court held that an established custodial environment existed with defendant only. Accordingly, the circuit court concluded that plaintiff had to prove by clear and convincing evidence that a change in that custodial environment would be in the best interests of the minor children.
The law of Custody; is found in state Law MCL 722.28; and explained inBerger v. Berger; Fletcher v. Fletcher;
Since there are several levels of burden of proof a higher court here was asked to review the local trial court on whether the trial court properly applied the "clear and convincing evidence" standard; MCL 722.27(1)(c); Foskett v. Foskett;
Clear and convincing evidence defined; Kefgen v. Davidson;
PREPONDERANCE VS CLEAR AND CONVINCING
The clear-and-convincing evidentiary standard imposes a higher burden of proof than
the preponderance-of-the-evidence standard. See id. Albeit in a different context, we have
defined clear and convincing evidence as evidence that “‘“produce[s] in the mind of a trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”’” Kefgen v Davidson, 241 Mich App 611, 625; 617 NW2d 351 (2000) (citations omitted); see also In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).
LOWER COURTS USE OF THE BEST INTEREST FACTORS
Whether the trial court's analysis of the best interest factors (MCL 722.23) was against the great weight of the evidence; Eldred v. Ziny; Rittershaus v. Rittershaus; Sinicropi v. Mazurek;
We want to know what the judges based their opinion on in change of custody disputes. Custody issues are to be resolved in the child’s best interests, as measured by the best interest factors enumerated in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).
The best interest factors of MCL 722.23include:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
The circuit court must state its findings and conclusions regarding each of the best
interest factors. Rittershaus v Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007).
Failure to do so generally results in reversible error. Id. However, the court need not comment
on every matter in evidence or declare acceptance or rejection of every proposition argued.
Fletcher, 447 Mich at 883 (BRICKLEY, J.), 900 (GRIFFIN, J.). Moreover, a court need not give
equal weight to all the factors, but may consider the relative weight of the factors as appropriate
to the circumstances. Sinicropi v Mazurek, 273 Mich App 149, 184; 729 NW2d 256 (2006). Here the lower circuit court addressed each factor or determined that it was not applicable. The Mother had staked here claim on the position that the lower court did not evaluate factor g properly.
Factor g; Whether expert testimony is always required for a trial court to find a party's mental illness negatively impacts her or his ability to parent
The circuit court considered testimony concerning the condition of defendant’s home, the
cleanliness of the parties’ minor children, and the effect of defendant’s bipolar condition on the parties’ daughter. We disagree with defendant that the circuit court’s findings were against the great weight of the evidence. There was ample testimony establishing that defendant’s home was unclean and smelled of animal excrement, and that the parties’ minor children were dirty, unkempt, and always in need of a bath. The record also clearly established that the parties’ daughter had anxiety and emotional issues that were negatively affected by defendant’s bipolar disorder. Contrary to defendant’s argument on appeal, expert testimony is not always required before a circuit court may find that a party’s mental illness negatively impacts his or her ability to parent. Nor has defendant presented any evidence that the circuit court was unable to properly consider this issue without expert testimony.
The Michigan Court of Appeals conclude, based on a review of the totality of the circumstances surrounding the circuit court’s analysis, that the court understood and applied the correct standard.
The Michigan Court of Appeals decided the trial court correctly applied the "clear and convincing evidence" standard and its findings on best interest factor g were not against the great weight of the evidence, the court affirmed the trial court's order granting the plaintiff-father's petition for sole custody of the parties' minor children.
See , Michigan Court of Appeals (Unpublished 10/1/09),Case Name: Husen v. Campbell ,e-Journal Number: 43930 ,Judge(s): Per Curiam - Jansen, Fort Hood, and Gleicher , UNPUBLISHED,No. 289918,Bay Circuit Court,, LC No. 07-007522-DC[This case modified for presentation, do not rely on its contents without consulting an attorney.-trb]
Issues reviewed by Flint Divorce Attorney Lawyer Terry Bankert:
There are cases in Family Law where the burden of proof is critical. Such is the case when one parent wants to change the custody order. We want children’s lives to be stable, so there should be and there is great pressure to not change the custodial environment.
The Higher courts have directed the lower court that changes to a child’s established custodial environment should be permitted only “in the most compelling cases,” Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981), and only where the moving party can show by clear and convincing evidence that the change is in the best interest of the child, MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).
In this case, the circuit court held that an established custodial environment existed with defendant only. Accordingly, the circuit court concluded that plaintiff had to prove by clear and convincing evidence that a change in that custodial environment would be in the best interests of the minor children.
The law of Custody; is found in state Law MCL 722.28; and explained inBerger v. Berger; Fletcher v. Fletcher;
Since there are several levels of burden of proof a higher court here was asked to review the local trial court on whether the trial court properly applied the "clear and convincing evidence" standard; MCL 722.27(1)(c); Foskett v. Foskett;
Clear and convincing evidence defined; Kefgen v. Davidson;
PREPONDERANCE VS CLEAR AND CONVINCING
The clear-and-convincing evidentiary standard imposes a higher burden of proof than
the preponderance-of-the-evidence standard. See id. Albeit in a different context, we have
defined clear and convincing evidence as evidence that “‘“produce[s] in the mind of a trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”’” Kefgen v Davidson, 241 Mich App 611, 625; 617 NW2d 351 (2000) (citations omitted); see also In re Martin, 450 Mich 204, 227; 538 NW2d 399 (1995).
LOWER COURTS USE OF THE BEST INTEREST FACTORS
Whether the trial court's analysis of the best interest factors (MCL 722.23) was against the great weight of the evidence; Eldred v. Ziny; Rittershaus v. Rittershaus; Sinicropi v. Mazurek;
We want to know what the judges based their opinion on in change of custody disputes. Custody issues are to be resolved in the child’s best interests, as measured by the best interest factors enumerated in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).
The best interest factors of MCL 722.23include:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
The circuit court must state its findings and conclusions regarding each of the best
interest factors. Rittershaus v Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007).
Failure to do so generally results in reversible error. Id. However, the court need not comment
on every matter in evidence or declare acceptance or rejection of every proposition argued.
Fletcher, 447 Mich at 883 (BRICKLEY, J.), 900 (GRIFFIN, J.). Moreover, a court need not give
equal weight to all the factors, but may consider the relative weight of the factors as appropriate
to the circumstances. Sinicropi v Mazurek, 273 Mich App 149, 184; 729 NW2d 256 (2006). Here the lower circuit court addressed each factor or determined that it was not applicable. The Mother had staked here claim on the position that the lower court did not evaluate factor g properly.
Factor g; Whether expert testimony is always required for a trial court to find a party's mental illness negatively impacts her or his ability to parent
The circuit court considered testimony concerning the condition of defendant’s home, the
cleanliness of the parties’ minor children, and the effect of defendant’s bipolar condition on the parties’ daughter. We disagree with defendant that the circuit court’s findings were against the great weight of the evidence. There was ample testimony establishing that defendant’s home was unclean and smelled of animal excrement, and that the parties’ minor children were dirty, unkempt, and always in need of a bath. The record also clearly established that the parties’ daughter had anxiety and emotional issues that were negatively affected by defendant’s bipolar disorder. Contrary to defendant’s argument on appeal, expert testimony is not always required before a circuit court may find that a party’s mental illness negatively impacts his or her ability to parent. Nor has defendant presented any evidence that the circuit court was unable to properly consider this issue without expert testimony.
The Michigan Court of Appeals conclude, based on a review of the totality of the circumstances surrounding the circuit court’s analysis, that the court understood and applied the correct standard.
The Michigan Court of Appeals decided the trial court correctly applied the "clear and convincing evidence" standard and its findings on best interest factor g were not against the great weight of the evidence, the court affirmed the trial court's order granting the plaintiff-father's petition for sole custody of the parties' minor children.
See , Michigan Court of Appeals (Unpublished 10/1/09),Case Name: Husen v. Campbell ,e-Journal Number: 43930 ,Judge(s): Per Curiam - Jansen, Fort Hood, and Gleicher , UNPUBLISHED,No. 289918,Bay Circuit Court,, LC No. 07-007522-DC[This case modified for presentation, do not rely on its contents without consulting an attorney.-trb]
Tuesday, September 29, 2009
MOM CAN MOVE 200 MILES
Hot off the Press
Flint Divorce Attorney Terry Bankert reviews a 9/17/09 unpublished opinion of the Michigan Court of Appeals. Flint Lawyer Terry Bankert practices Family Law in Genesee County Flint Michigan dealing often with the issues of change of domicile and custodial environment.
Here we discuss a case where Father Defendant appeals as is his right an order of a local court granting a motion for change of domicile , OVER 200 MILES,in favor of Mother Plaintiff.
The local order permitted mother/plaintiff to move from Utica, Michigan to Wellston, Michigan with the parties’ minor child. The Michigan Court of Appeals said the local court got it right.
HOW FAR IS MOM MOVING THE KIDS FROM DAD?
If Michigan were your left hand A move from Utica Michigan to Wellston Michigan would be from the base of your left thumb to the base of your little finger.
This move by a Yahoo Map is 218.60 miles, A 3.34 hr drive. To test for distance in court use a straight line.
To take his kids to his home for the weekend assuming dad is responsible for all driving he spends 12 hours in the car the kids would spend 6. Think about it. If you were dad and had been active with your kids during and after school and regularly took them to visit with your family locally could you keep it up with this drive? The Michigan Court of Appeals would say YES! What does common sense say?
If dad had been move acvtive in the childs life the outcome for him may have been different.
The local court also found that the mother and father parties had conducted themselves in a way in which the mother primarily had physical custody.
Although testimony indicated that the child looked to father for his needs while in
Fathers care and there were periods of time where fathers time with the child was more than what was scheduled, father can point to no testimony establishing that the child also
looked to him for guidance, discipline, and parental comfort on a day-to-day basis.
THE FATHER AND CHILD relationship does not have the characteristic of permanence and stability that is emblematic of an established custodial environment.
HERES A 10 DOLLAR WORD!
emblematic
emblematical, #"/definition/symbolic"symbolic, # "/definition/symbolical"symbolicalserving as a visible symbol for something abstract; "a crown is emblematic of royalty"; "the spinning wheel was as symbolic of colonical Massachusetts as the codfish" emblematic, exemplary, typicbeing or serving as an illustration of a type; "the free discussion that is emblematic of democracy"; "an action exemplary of his conduct";
FAMILY LAW ISSUES
1.Change of minor child's domicile; MCL 722.31(4);
2.Whether the child had an established custodial environment with both parties; Foskett v. Foskett; Rittershaus v. Rittershaus; Mogle v. Scriver; MCL 722.27(1)(c); Baker v. Baker; MCL 722.28; Berger v. Berger; Phillips v. Jordan
MICHIGAN COURT OF APPEALS
Court: Michigan Court of Appeals (Unpublished),September 17, 2009,v No. 291045
Macomb Circuit Court,LC No. 2002-002204-DS,Case Name: Avouris v. Rasa,
e-Journal Number: 43790,Judge(s): Per Curiam - Sawyer, Cavanagh, and Hoekstra
[This opinion has been modified for presentation-TRB 9/29/09]
THE LOCAL COURT GOT IT RIGHT ON CUSTODIAL ENVIRONMENT
The trial court's finding the parties' minor child's established custodial environment was solely with the plaintiff-mother was not against the great weight of the evidence, and it did not abuse its discretion in ruling a change of domicile within the state was warranted under MCL 722.31(4).
A MOVE DISRUPTING PARENTING TIME COULD DISRUPT THE CUSTODIAL ENVIRONMENT
Where there is a joint established custodial environment, neither parent’s custody may be
disrupted absent clear and convincing evidence. Sinicropi v Mazurek, 273 Mich App 149, 178;729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).
WAS THERE JOINT CUSTODY?
DID THE MOVE CHANGE THE CUSTODIAL ENVIRONMENT?
IF YES THEN MOM NEEDED TO SHOW BY CLEAR AND CONVINCING EVIDENCE .
“[T]he trial court is not required to consider the best-interest factors until it first determines thatthe [domicile] modification actually changes the children’s established custodial environment.”Rittershaus v Rittershaus, 273 Mich App 462, 470-471; 730 NW2d 262 (2007).
HERE MOM ONLY HAD TO MAKE HER CASE BY THE LOWER STANDARD OF PREPONDERANCE OF THE EVIDENCE.
Where the change in domicile will not affect the established custodial environment, the moving party has only “the burden of establishing by a preponderance of the evidence that the change in domicile is warranted.” Mogle v Scriver, 241 Mich App 192, 203; 614 NW2d 696 (2000).
DAD LOST THE JOINT CUSTODY ARGUMENT
The defendant-father argued the trial court should have required plaintiff to show the change in domicile was in the child's best interests by clear and convincing evidence because he had an established custodial environment with both parties, and challenged the trial court's findings on the factors in MCL 722.31(4)(a)-(c).
The parties in this case had joint custody of the child, but plaintiff, the child’s mother,
had full physical custody. The trial court found that an established custodial environment only existed with plaintiff. Defendant argues that this finding was against the great weight of the evidence. He contends that the child had an established custodial environment with him as well,and because of this the trial court clearly erred by not requiring plaintiff to show by clear and convincing evidence that the change in domicile was in the child’s best interests. This argument requires a review of whether the trial court’s finding that there was not an established custodial environment with defendant was against the great weight of the evidence.
MCL 722.27(1)(c) provides:
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency
of the relationship shall also be considered.
Whether an established custodial environment exists is a question of fact. Foskett, supra at 8.
An established custodial environment can exist with both parents, even if the child’s primary residence is with one parent and the same parent provides most of the financial support for the child. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000).
Further, an established custodial environment is one of significant duration, both physical and psychological, “in which the relationship between the custodian and child is marked by security, stability and permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981)
Here the court looked for characteristic of permanence and stability that is emblematic of an established custodial environment. Mother plaintiff only needed to prove that the change in domicile was warranted by a preponderance of the evidence.
In determining the child's established custodial environment was with plaintiff, the trial court noted he primarily lived with plaintiff and attended school from her home.
The trial court found while both parties participated in the child's school life and attended doctor's appointments, they conducted themselves in a way in which plaintiff primarily had physical custody.
While testimony indicated the child looked to defendant for his needs when he was in his care and there were periods where his time with the child was more than what was scheduled, defendant could not point to testimony showing the child also looked to him for discipline, guidance, and parental comfort on a day-to-day basis.
The court concluded their relationship did "not have the characteristic of permanence and stability that is emblematic of an established custodial environment."
When a parent petitions the court to change the legal residence of the child to a
location that is more than 100 miles from the child’s legal residence, the trial court must consider the following factors, set forth in MCL 722.31(4), before permitting the change:
(a) Whether the legal residence change has the capacity to improve the quality of
life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her
time under, a court order governing parenting time with the child, and whether the
parent's plan to change the child's legal residence is inspired by that parent's
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal
residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
The court also held there was evidentiary support for the trial court's findings the move would have the capacity to improve the quality of life for the child and plaintiff, and defendant would be able to foster and preserve a relationship with him.
The trial court based its finding on MCL 722.31(4)(a) on plaintiff's planned marriage to her fiancé, who lived in the city to which she sought to change the child's domicile, and on her new employment, after she was unable to find suitable employment in the area where she currently lived.
As to MCL 722.31(4)(b) and (c), the court concluded the evidence also supported the trial court's findings both parties had complied with the scheduling order and given their past cooperation related to parenting time, they would comply with the modified parenting time order. The Michigan Court of Appeals Affirmed or agreed with the local court.
Posted here by Terry Bankert a Flint divorce lawyer. This case has been modified for presentation.9/28/09
Flint Divorce Attorney Terry Bankert reviews a 9/17/09 unpublished opinion of the Michigan Court of Appeals. Flint Lawyer Terry Bankert practices Family Law in Genesee County Flint Michigan dealing often with the issues of change of domicile and custodial environment.
Here we discuss a case where Father Defendant appeals as is his right an order of a local court granting a motion for change of domicile , OVER 200 MILES,in favor of Mother Plaintiff.
The local order permitted mother/plaintiff to move from Utica, Michigan to Wellston, Michigan with the parties’ minor child. The Michigan Court of Appeals said the local court got it right.
HOW FAR IS MOM MOVING THE KIDS FROM DAD?
If Michigan were your left hand A move from Utica Michigan to Wellston Michigan would be from the base of your left thumb to the base of your little finger.
This move by a Yahoo Map is 218.60 miles, A 3.34 hr drive. To test for distance in court use a straight line.
To take his kids to his home for the weekend assuming dad is responsible for all driving he spends 12 hours in the car the kids would spend 6. Think about it. If you were dad and had been active with your kids during and after school and regularly took them to visit with your family locally could you keep it up with this drive? The Michigan Court of Appeals would say YES! What does common sense say?
If dad had been move acvtive in the childs life the outcome for him may have been different.
The local court also found that the mother and father parties had conducted themselves in a way in which the mother primarily had physical custody.
Although testimony indicated that the child looked to father for his needs while in
Fathers care and there were periods of time where fathers time with the child was more than what was scheduled, father can point to no testimony establishing that the child also
looked to him for guidance, discipline, and parental comfort on a day-to-day basis.
THE FATHER AND CHILD relationship does not have the characteristic of permanence and stability that is emblematic of an established custodial environment.
HERES A 10 DOLLAR WORD!
emblematic
emblematical, #"/definition/symbolic"symbolic, # "/definition/symbolical"symbolicalserving as a visible symbol for something abstract; "a crown is emblematic of royalty"; "the spinning wheel was as symbolic of colonical Massachusetts as the codfish" emblematic, exemplary, typicbeing or serving as an illustration of a type; "the free discussion that is emblematic of democracy"; "an action exemplary of his conduct";
FAMILY LAW ISSUES
1.Change of minor child's domicile; MCL 722.31(4);
2.Whether the child had an established custodial environment with both parties; Foskett v. Foskett; Rittershaus v. Rittershaus; Mogle v. Scriver; MCL 722.27(1)(c); Baker v. Baker; MCL 722.28; Berger v. Berger; Phillips v. Jordan
MICHIGAN COURT OF APPEALS
Court: Michigan Court of Appeals (Unpublished),September 17, 2009,v No. 291045
Macomb Circuit Court,LC No. 2002-002204-DS,Case Name: Avouris v. Rasa,
e-Journal Number: 43790,Judge(s): Per Curiam - Sawyer, Cavanagh, and Hoekstra
[This opinion has been modified for presentation-TRB 9/29/09]
THE LOCAL COURT GOT IT RIGHT ON CUSTODIAL ENVIRONMENT
The trial court's finding the parties' minor child's established custodial environment was solely with the plaintiff-mother was not against the great weight of the evidence, and it did not abuse its discretion in ruling a change of domicile within the state was warranted under MCL 722.31(4).
A MOVE DISRUPTING PARENTING TIME COULD DISRUPT THE CUSTODIAL ENVIRONMENT
Where there is a joint established custodial environment, neither parent’s custody may be
disrupted absent clear and convincing evidence. Sinicropi v Mazurek, 273 Mich App 149, 178;729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).
WAS THERE JOINT CUSTODY?
DID THE MOVE CHANGE THE CUSTODIAL ENVIRONMENT?
IF YES THEN MOM NEEDED TO SHOW BY CLEAR AND CONVINCING EVIDENCE .
“[T]he trial court is not required to consider the best-interest factors until it first determines thatthe [domicile] modification actually changes the children’s established custodial environment.”Rittershaus v Rittershaus, 273 Mich App 462, 470-471; 730 NW2d 262 (2007).
HERE MOM ONLY HAD TO MAKE HER CASE BY THE LOWER STANDARD OF PREPONDERANCE OF THE EVIDENCE.
Where the change in domicile will not affect the established custodial environment, the moving party has only “the burden of establishing by a preponderance of the evidence that the change in domicile is warranted.” Mogle v Scriver, 241 Mich App 192, 203; 614 NW2d 696 (2000).
DAD LOST THE JOINT CUSTODY ARGUMENT
The defendant-father argued the trial court should have required plaintiff to show the change in domicile was in the child's best interests by clear and convincing evidence because he had an established custodial environment with both parties, and challenged the trial court's findings on the factors in MCL 722.31(4)(a)-(c).
The parties in this case had joint custody of the child, but plaintiff, the child’s mother,
had full physical custody. The trial court found that an established custodial environment only existed with plaintiff. Defendant argues that this finding was against the great weight of the evidence. He contends that the child had an established custodial environment with him as well,and because of this the trial court clearly erred by not requiring plaintiff to show by clear and convincing evidence that the change in domicile was in the child’s best interests. This argument requires a review of whether the trial court’s finding that there was not an established custodial environment with defendant was against the great weight of the evidence.
MCL 722.27(1)(c) provides:
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency
of the relationship shall also be considered.
Whether an established custodial environment exists is a question of fact. Foskett, supra at 8.
An established custodial environment can exist with both parents, even if the child’s primary residence is with one parent and the same parent provides most of the financial support for the child. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000).
Further, an established custodial environment is one of significant duration, both physical and psychological, “in which the relationship between the custodian and child is marked by security, stability and permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981)
Here the court looked for characteristic of permanence and stability that is emblematic of an established custodial environment. Mother plaintiff only needed to prove that the change in domicile was warranted by a preponderance of the evidence.
In determining the child's established custodial environment was with plaintiff, the trial court noted he primarily lived with plaintiff and attended school from her home.
The trial court found while both parties participated in the child's school life and attended doctor's appointments, they conducted themselves in a way in which plaintiff primarily had physical custody.
While testimony indicated the child looked to defendant for his needs when he was in his care and there were periods where his time with the child was more than what was scheduled, defendant could not point to testimony showing the child also looked to him for discipline, guidance, and parental comfort on a day-to-day basis.
The court concluded their relationship did "not have the characteristic of permanence and stability that is emblematic of an established custodial environment."
When a parent petitions the court to change the legal residence of the child to a
location that is more than 100 miles from the child’s legal residence, the trial court must consider the following factors, set forth in MCL 722.31(4), before permitting the change:
(a) Whether the legal residence change has the capacity to improve the quality of
life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her
time under, a court order governing parenting time with the child, and whether the
parent's plan to change the child's legal residence is inspired by that parent's
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal
residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
The court also held there was evidentiary support for the trial court's findings the move would have the capacity to improve the quality of life for the child and plaintiff, and defendant would be able to foster and preserve a relationship with him.
The trial court based its finding on MCL 722.31(4)(a) on plaintiff's planned marriage to her fiancé, who lived in the city to which she sought to change the child's domicile, and on her new employment, after she was unable to find suitable employment in the area where she currently lived.
As to MCL 722.31(4)(b) and (c), the court concluded the evidence also supported the trial court's findings both parties had complied with the scheduling order and given their past cooperation related to parenting time, they would comply with the modified parenting time order. The Michigan Court of Appeals Affirmed or agreed with the local court.
Posted here by Terry Bankert a Flint divorce lawyer. This case has been modified for presentation.9/28/09
Saturday, September 19, 2009
DAD GETS YOU TO PAY FOR THE BIRTH OF HIS CHILDREN
YOU AND FAMILY LAW!
Issues brought to you by Terry Ray Bankert, Flint Family Law Attorney, Lawyer, specializing in divorce, child custody, child support, parenting time and grand parents rights.
WHAT
1.Whether the Berrian County Family Court was wrong when it denied the defendant-father's motion to stop the pregnancy and confinement ( doctor and hospitalization cost of child birth) expenses in connection with the birth of four children, these kids were not born at once; Analysis of MCL 722.712(4) and (5); Lesner v. Liquid Disposal, Inc.; Jordin v. Jarvis;
2.Whether the amended statute applied to the parties who were married before the amendment became effective; Tyson Foods, Inc. v. Department of Treasury
THIS IS A PUBLISHED OPINION AND MAKES IT THE NEW LAW OF THE LAND EFFECTIVE AT 9 A.AM 9/17/09
Court: Michigan Court of Appeals (Published),Case Name: Booker v. Shannon
N0.284937 Berrian Circuit Court,LC No. 1991-004064-DS,e-Journal Number: 43758
Judge(s): Per Curiam - Servitto, Fitzgerald, and Bandstra.
THE LAW IS THREE THINGS, FEDERAL , STATE STATUTE AND LOCAL ORDINANCES, MICHIGAN COURT OF APPEALS OPINIONS ,SUPREME COURT OPINIONS AND ITS INTERPRETATIONS BY INDIVIDUAL LOCAL JUDGES. WHO YOU ELECT TO A JUDGESHIP IS IMPORTANT TO YOU.
Deciding an issue of first impression, the court held since MCL 722.712(5) places fathers who had an order providing for the payment of confinement and pregnancy expenses entered before October 1, 2004 (effective date of amendment), on the same footing as those whose order was entered after that date, the defendant-father (Shannon) was entitled to abatement of the unpaid confinement and pregnancy expenses based on the plain language of MCL 722.712(4) and (5).
BACKGROUND
The case involved the payment for the hospital confinement and pregnancy expenses in connection with the births of four children.
UNMARRIED WHEN THE CHILDREN WERE BORN, MOM ON MEDICAID PUBLIC HEALTH CARE THAT YOU PAY FOR.
The parties were unmarried, the mother (plaintiff-Booker) was on Medicaid when all the children were born, and Medicaid paid the expenses.
DAD DID NOT WORK MUCH AND LIVED OFF MOM THROUGH THE BIRTH OF THREE CHILDREN
It was undisputed defendant has worked only sporadically and has lived with plaintiff and the children from shortly after the birth of the first child until the present (except for a couple of two-month absences through the years).
DAD ORDERED TO PAY THE STATE OF MICHIGAN BACK THE MONEY IT SPENT ON THE CHILDREN, GOOD THING.
Defendant was ordered to repay the expenses in connection with the children's births and over the years he paid $1,207. The parties were married in May 1997.
10 YEARS LATER DAD TRYS TO GET OUT OF PAYING US OUR TAX MONEY USED TO PROTECT HIS CHILDREN BACK BECAUSE YOUR STATE LEGISLATURE GAVE HIM AN OUT.!
Ten years later, defendant moved to abate the remaining expenses (about $8,288) based on MCL 722.712.
THE PROSECUTOR TRIED TO LIMIT WHAT DAD COULD GET OUT OF.
The prosecutor acting for the county, argued because the marriage must occur after the effective date of the amendatory act, defendant was not entitled to the abatement of the unpaid expenses.
THE BERRIAN COUNTY COURT TRIED TO HELP THE PROSECUTOR
The trial court agreed.
THEY WERE WRONG
The plain language of § 712(4) clearly provides an order for repayment of the expenses shall provide if the father marries the mother after the birth of the child and provides documentation of the fact, the unpaid expenses are abated. The plain language of § 712(5) clearly provides although sections 4 and 5 were not effective until October 1, 2004, orders entered before that date are also subject to abatement "if the father marries the mother." "Simply put, MCL 722.712(5) places fathers who had an order providing for the payment of confinement and pregnancy expenses entered before October 1, 2004, on the same footing as fathers who had an order entered after October 1, 2004."
MICHIGAN COURT OF APPEALS TELLS THE BERRIAN CIRCUIT COURT TO GO BACK AND DO IT RIGHT.
Reversed and remanded for entry of an order abating defendant's unpaid confinement and pregnancy expenses.
This case presents an issue of first impression in Michigan.
MCL 722.712 provides, in pertinent part:
(1) The parents of a child born out of wedlock are liable for the necessary support
and education of the child. They are also liable for the child's funeral expenses.
Subject to subsections (2) and (3), based on each parent's ability to pay and on
any other relevant factor, the court may apportion, in the same manner as medical
expenses of the child are divided under the child support formula, the reasonable
and necessary expenses of the mother's confinement and expenses in connection
with her pregnancy between the parents and require the parent who did not pay
the expense to pay his or her share of the expense to the other parent.
Reversed and remanded for entry of an order abating defendant’s unpaid confinement and
pregnancy expenses.
Posted here by
Terry Bankert
http://www.flintfamilylaw.com/
Issues brought to you by Terry Ray Bankert, Flint Family Law Attorney, Lawyer, specializing in divorce, child custody, child support, parenting time and grand parents rights.
WHAT
1.Whether the Berrian County Family Court was wrong when it denied the defendant-father's motion to stop the pregnancy and confinement ( doctor and hospitalization cost of child birth) expenses in connection with the birth of four children, these kids were not born at once; Analysis of MCL 722.712(4) and (5); Lesner v. Liquid Disposal, Inc.; Jordin v. Jarvis;
2.Whether the amended statute applied to the parties who were married before the amendment became effective; Tyson Foods, Inc. v. Department of Treasury
THIS IS A PUBLISHED OPINION AND MAKES IT THE NEW LAW OF THE LAND EFFECTIVE AT 9 A.AM 9/17/09
Court: Michigan Court of Appeals (Published),Case Name: Booker v. Shannon
N0.284937 Berrian Circuit Court,LC No. 1991-004064-DS,e-Journal Number: 43758
Judge(s): Per Curiam - Servitto, Fitzgerald, and Bandstra.
THE LAW IS THREE THINGS, FEDERAL , STATE STATUTE AND LOCAL ORDINANCES, MICHIGAN COURT OF APPEALS OPINIONS ,SUPREME COURT OPINIONS AND ITS INTERPRETATIONS BY INDIVIDUAL LOCAL JUDGES. WHO YOU ELECT TO A JUDGESHIP IS IMPORTANT TO YOU.
Deciding an issue of first impression, the court held since MCL 722.712(5) places fathers who had an order providing for the payment of confinement and pregnancy expenses entered before October 1, 2004 (effective date of amendment), on the same footing as those whose order was entered after that date, the defendant-father (Shannon) was entitled to abatement of the unpaid confinement and pregnancy expenses based on the plain language of MCL 722.712(4) and (5).
BACKGROUND
The case involved the payment for the hospital confinement and pregnancy expenses in connection with the births of four children.
UNMARRIED WHEN THE CHILDREN WERE BORN, MOM ON MEDICAID PUBLIC HEALTH CARE THAT YOU PAY FOR.
The parties were unmarried, the mother (plaintiff-Booker) was on Medicaid when all the children were born, and Medicaid paid the expenses.
DAD DID NOT WORK MUCH AND LIVED OFF MOM THROUGH THE BIRTH OF THREE CHILDREN
It was undisputed defendant has worked only sporadically and has lived with plaintiff and the children from shortly after the birth of the first child until the present (except for a couple of two-month absences through the years).
DAD ORDERED TO PAY THE STATE OF MICHIGAN BACK THE MONEY IT SPENT ON THE CHILDREN, GOOD THING.
Defendant was ordered to repay the expenses in connection with the children's births and over the years he paid $1,207. The parties were married in May 1997.
10 YEARS LATER DAD TRYS TO GET OUT OF PAYING US OUR TAX MONEY USED TO PROTECT HIS CHILDREN BACK BECAUSE YOUR STATE LEGISLATURE GAVE HIM AN OUT.!
Ten years later, defendant moved to abate the remaining expenses (about $8,288) based on MCL 722.712.
THE PROSECUTOR TRIED TO LIMIT WHAT DAD COULD GET OUT OF.
The prosecutor acting for the county, argued because the marriage must occur after the effective date of the amendatory act, defendant was not entitled to the abatement of the unpaid expenses.
THE BERRIAN COUNTY COURT TRIED TO HELP THE PROSECUTOR
The trial court agreed.
THEY WERE WRONG
The plain language of § 712(4) clearly provides an order for repayment of the expenses shall provide if the father marries the mother after the birth of the child and provides documentation of the fact, the unpaid expenses are abated. The plain language of § 712(5) clearly provides although sections 4 and 5 were not effective until October 1, 2004, orders entered before that date are also subject to abatement "if the father marries the mother." "Simply put, MCL 722.712(5) places fathers who had an order providing for the payment of confinement and pregnancy expenses entered before October 1, 2004, on the same footing as fathers who had an order entered after October 1, 2004."
MICHIGAN COURT OF APPEALS TELLS THE BERRIAN CIRCUIT COURT TO GO BACK AND DO IT RIGHT.
Reversed and remanded for entry of an order abating defendant's unpaid confinement and pregnancy expenses.
This case presents an issue of first impression in Michigan.
MCL 722.712 provides, in pertinent part:
(1) The parents of a child born out of wedlock are liable for the necessary support
and education of the child. They are also liable for the child's funeral expenses.
Subject to subsections (2) and (3), based on each parent's ability to pay and on
any other relevant factor, the court may apportion, in the same manner as medical
expenses of the child are divided under the child support formula, the reasonable
and necessary expenses of the mother's confinement and expenses in connection
with her pregnancy between the parents and require the parent who did not pay
the expense to pay his or her share of the expense to the other parent.
Reversed and remanded for entry of an order abating defendant’s unpaid confinement and
pregnancy expenses.
Posted here by
Terry Bankert
http://www.flintfamilylaw.com/
Thursday, September 03, 2009
Contempt money sanctions to enforce parenting time!
GOOD MORNING FLINT!
09/03/09
BY Terry Bankert, Flint Divorce attorney.
http://www.attorneybankert.com
HOT OFF THE PRESS FROM THE MICHIGAN COURT OF APPEALS
Issues:
Attorney Terry Bankert specializing in divorce practicing in Flint Michigan often has cases where one of the parties does not obey a court order.
The remedy are complaining to the friend of the Court or seeking a show cause for Contempt from the Judge.
The Sanction then is compliance with the court order to include make up parenting time or a partial or full payment of child support ordered for instance.
Here the judge imposed a monetary sanction to compel performance not as a punishment.
The Court of appeals up held the lower court.
CONTEMPT PROCEEDINGS
1.Post-judgment contempt orders regarding parenting time with the defendant-father; Docket No. 284086 - Whether the trial court abused its discretion by finding the plaintiff-mother in contempt where the proceedings were criminal not civil; DeGeorge v. Warheit; In re Contempt of Henry; In re Contempt of Auto. Club Ins. Ass'n; In re Contempt of Calcutt; MCL 600.1721; MCL 600.1701; MCL 600.1715; Bowler v. Bowler; Casbergue v. Casbergue; Jaikins v. Jaikins; The Friend of the Court Act (MCL 552.501 et seq.); The Support & Parenting Time Act (MCL 552.601 et seq.); MCL 552.644;
SHOW CAUSE REQUIREMENTS
2.Whether the defendant's failure to attach a supporting affidavit to his motions for orders to show cause as required by MCR 3.606(A) deprived the trial court of its jurisdiction over the contempt proceedings; MCL 600. 1711(2) (affidavit or other method to show contempt); MCL 552.511b(1); Michigan Gas & Elec. Co. v. Dowagiac; Docket No. 28509 - Failure to satisfy the requirements for affidavits under MCR 2.119(B); Steingold v. Wayne County Probate Court Judge; MCR 2.119 and MCR 2.114; Campbell v. Recorders Court Judge; Lack of notary affixed to defendant's petition for show cause; MCL 552.17a(1); MCL 722.27(1)(c); Harvey v. Harvey; DenHeeten v. DenHeeten; Docket No. 284086 - Plaintiff's failure to sign a consent order and pay the court-ordered sanctions;
3.Whether plaintiff was accorded due process and sufficient evidence supported the trial court's February 13, 2008 contempt order; Plaintiff's claim of poverty; Plaintiff's refusal to sign the counselor's order; Johnson v. White; In re Contempt of DudzinskiSee:Court: Michigan Court of Appeals (Published) 9/1/09,Case Name: Porter v. Portere-Journal Number: 43605,Judge(s): Markey, Cavanagh, and DavisLower Wayne County Circuit Court , 95-525527-DM
THE DECISIOIN OF THE MICHIGAN COURT OF APPEALS
Rejecting the plaintiff-mother's claim the post-divorce judgment contempt proceedings related to the defendant-father's parenting time were criminal and she was not afforded the procedural protections of a criminal contempt proceeding, the court held they were civil in nature because the trial court was attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right of parenting time with his son. The court affirmed both contempt orders.
BACKGROUND
The parties are divorced and have one minor child who lives with plaintiff in Michigan.
The divorce case, originally filed in Massachusetts, was transferred in Michigan. Defendant continued to live in that state, but at the time of these proceedings had relocated to New Hampshire. The child has a history of being contentious as to visiting his father.
The trial court appointed a guardian ad litem for the child who recommended defendant have continued parenting time, telephone contact, and the child receive mental health therapy.
The trial court adopted the recommendations and ordered them to be facilitated by the parties. Subsequently, when the order was not followed, defendant filed motions to show cause why the plaintiff should not be held in contempt for not complying with the requirements of the order.
The trial court issued two contempt orders related to the plaintiff's noncompliance with the parenting issues, including monetary sanctions. On appeal, she raised numerous reasons why the contempt orders should not be enforced. However, the court held, inter alia, the contempt orders were not reversible on the basis of a technical violation of MCR 3.606(A), the trial court had jurisdiction to issue them, and affirmed. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.
Misc.
Relevant to this appeal, the trial court ordered parenting time for defendant, including two weeks of summer visitation commencing June 30, 2007, and that defendant have at least 10 minutes weekly telephone contact with the child.
On July 17, 2007, defendant filed a motion for the issuance of an order to show causewhy plaintiff should not be held in contempt because the ordered summer visitation andtelephone contact did not occur.
On July 18, 2007, the trial court issued its order to show cause and after a July 27, 2007, hearing, found plaintiff in contempt. The court ordered that defendant be provided re-scheduled summer visitation from August 5, 2007 through August 19, 2007.
The contempt order also sanctioned plaintiff $1,000 to be paid by August 29, 2007. The court reserved defendant's request for attorney fees. Plaintiff appeals this order in Docket No. 285095.Plaintiff did not pay the $1,000 sanctions.
Also, the court-ordered August visitation didnot occur, and defendant did not have parenting time for Thanksgiving 2007. On December 12, 2007, defendant filed another motion for an order to show cause why plaintiff should not be held in contempt of court for failing to comply with the trial court's orders.
The trial court, again, ordered plaintiff to pay both the previously ordered $1,000 sanction and an additional $3,100 to pay defendant's counsel an attorney fee. In addition, the court ordered that the parties continue to attend family reconciliation counseling and warned that plaintiff would be sanctioned $2,000 if she failed to cooperate with the counselor.
The court's December 19, 2007, order also included specific travel plans for the child to visit defendant during his Christmas parenting time.
On January 31, 2008, defendant filed yet another motion for an order to show cause whyplaintiff should not be held in contempt for failing to pay the $4,100 in sanctions and attorney fees arising out of the July 27 and December 19, 2007, show cause hearings and for not cooperating with the family counselor by not approving a consent order the counselor required to clarify her authority and fees.
At a February 13, 2008, show cause hearing, the trial court found plaintiff in contempt and ordered plaintiff jailed for two days unless she paid the $4,100.
The court also sanctioned plaintiff $2,000 for her failure to cooperate with the family counselor by not signing the consent order. The trial court entered a separate order containing the provisionsof the proposed consent order by appointing the family counselor as the parties' child specialist and addressing her fees and authority.
Plaintiff first argues that the trial court abused its discretion by finding her in contemptbecause the proceedings were criminal, not civil.
Plaintiff contends she was punished forviolating the trial court's June 25, 2007, order, but was not accorded the procedural protection of a criminal contempt proceeding. Moreover, she argues that because an order to show cause was issued without a supporting affidavit as required by MCR 3.606(A), the trial court lacked jurisdiction over the contempt proceeding. The Court disagreed.
The Court First, rejected plaintiff's argument that the contempt proceedings at issue here were criminal. "Criminal contempt differs from civil contempt in that the sanctions are punitive rather than remedial." DeGeorge, supra at 594. "Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both."
In re Contempt of Henry, 282 Mich App 656, 666; 765 NW2d 44 (2009) (citations omitted).
When a court exercises its criminal contempt power it is not attempting to force the contemnor to comply with an order but is simply punishing the contemnor for past misconduct that was an affront to the court's dignity.
On the other hand, if the court employs its contempt power tocoerce compliance with a present or future obligation or to reimburse the complainant for costs incurred by the contemptuous behavior, including attorney fees, the proceedings are civil. In re Contempt of Dougherty, 429 Mich 81, 91-96; 413 NW2d 392 (1987); In re Contempt of Calcutt,Thus, there "are two types of civil contempt sanctions, coercive and compensatory." Dougherty, supra at 97.
Nevertheless, civil sanctions primarily intended to compel the contemnor to comply with the court's order may also have a punitive effect. Id. at 93; DeGeorge, supra at 592. "`
If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil . . . . The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court.'" Dougherty, supra at 95-96, quoting People ex rel Attorney General v Yarowsky, 236 Mich 169,171-172; 210 NW 246 (1926) (citation omitted).
Differentiating between civil contempt and criminal contempt is not easy because bothforms of contempt might result in the contemnor's being imprisoned for willfully failing to comply with an order of the court. MCL 600.1701; MCL 600.1715.
Thus, all contempt proceedings are referred to as "quasi-criminal" or "criminal in nature." In re Contempt of Dougherty, 429 Mich 81, 90; 413 NW2d 392 (1987), citing Bessette v W B Conkey Co, 194 US 324, 326; 24 S Ct 665; 48 L Ed 997 (1904), and Moskovitz, Contempt of injunctions, civil and criminal, 43 Colum L R 780 (1943).
The distinction between civil and criminal contempt is important because "a criminal contempt proceeding requires some, but not all, of the due process safeguards of an ordinary criminal trial." Dougherty, supra at 91.
A party charged with criminal contempt is presumed innocent, enjoys the right against self-incrimination, and the contempt must be proven beyond a reasonable doubt. DeGeorge, supra at 594; Jaikins, supra at 120-121.Further, a party accused of criminal contempt must be "be informed of the nature of the charge against him or her and to be given adequate opportunity to prepare a defense and to secure the assistance of counsel." DeGeorge, supra at 594.
In contrast, in a civil contempt proceeding, the accused must be accorded rudimentary due process, i.e., notice and an opportunity to present a defense, and the party seeking enforcement of the court's order bears the burden of proving by apreponderance of the evidence that the order was violated. Bowler v Bowler, 351 Mich 398, 405; 88 NW2d 505 (1958); Auto Club, supra at 712-713.
Here the trial court was not trying to punish plaintiff for past misconduct because its dignity had been offended; it was instead attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right to parenting time with his son.
On entry of the contempt order of July 27, 2007, plaintiff could purgeherself of contempt by paying the $1,000 sanction and complying with the order for specific makeup visitation. See Auto Club, supra at 712 ("Civil contempt ends when the contemnor complies with the court's order or is no longer able to do so and pays any fines or costs for the contempt proceedings.");
In a case the Court held that contempt proceedings to enforce court-ordered visitation were civil and the trial court erred when it did not permit the contemptuous party to purge himself from contempt.
The case went on to address several other issues. Here we just explored the civil nature of a Domestic ( Family Law) contempt proceedings.
In domestic cases possibly we should include financial sanctions for n on compliance of parenting and support orders.
Posted here by Terry Bankert
http://www.flingtfamilylaw.com
09/03/09
BY Terry Bankert, Flint Divorce attorney.
http://www.attorneybankert.com
HOT OFF THE PRESS FROM THE MICHIGAN COURT OF APPEALS
Issues:
Attorney Terry Bankert specializing in divorce practicing in Flint Michigan often has cases where one of the parties does not obey a court order.
The remedy are complaining to the friend of the Court or seeking a show cause for Contempt from the Judge.
The Sanction then is compliance with the court order to include make up parenting time or a partial or full payment of child support ordered for instance.
Here the judge imposed a monetary sanction to compel performance not as a punishment.
The Court of appeals up held the lower court.
CONTEMPT PROCEEDINGS
1.Post-judgment contempt orders regarding parenting time with the defendant-father; Docket No. 284086 - Whether the trial court abused its discretion by finding the plaintiff-mother in contempt where the proceedings were criminal not civil; DeGeorge v. Warheit; In re Contempt of Henry; In re Contempt of Auto. Club Ins. Ass'n; In re Contempt of Calcutt; MCL 600.1721; MCL 600.1701; MCL 600.1715; Bowler v. Bowler; Casbergue v. Casbergue; Jaikins v. Jaikins; The Friend of the Court Act (MCL 552.501 et seq.); The Support & Parenting Time Act (MCL 552.601 et seq.); MCL 552.644;
SHOW CAUSE REQUIREMENTS
2.Whether the defendant's failure to attach a supporting affidavit to his motions for orders to show cause as required by MCR 3.606(A) deprived the trial court of its jurisdiction over the contempt proceedings; MCL 600. 1711(2) (affidavit or other method to show contempt); MCL 552.511b(1); Michigan Gas & Elec. Co. v. Dowagiac; Docket No. 28509 - Failure to satisfy the requirements for affidavits under MCR 2.119(B); Steingold v. Wayne County Probate Court Judge; MCR 2.119 and MCR 2.114; Campbell v. Recorders Court Judge; Lack of notary affixed to defendant's petition for show cause; MCL 552.17a(1); MCL 722.27(1)(c); Harvey v. Harvey; DenHeeten v. DenHeeten; Docket No. 284086 - Plaintiff's failure to sign a consent order and pay the court-ordered sanctions;
3.Whether plaintiff was accorded due process and sufficient evidence supported the trial court's February 13, 2008 contempt order; Plaintiff's claim of poverty; Plaintiff's refusal to sign the counselor's order; Johnson v. White; In re Contempt of DudzinskiSee:Court: Michigan Court of Appeals (Published) 9/1/09,Case Name: Porter v. Portere-Journal Number: 43605,Judge(s): Markey, Cavanagh, and DavisLower Wayne County Circuit Court , 95-525527-DM
THE DECISIOIN OF THE MICHIGAN COURT OF APPEALS
Rejecting the plaintiff-mother's claim the post-divorce judgment contempt proceedings related to the defendant-father's parenting time were criminal and she was not afforded the procedural protections of a criminal contempt proceeding, the court held they were civil in nature because the trial court was attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right of parenting time with his son. The court affirmed both contempt orders.
BACKGROUND
The parties are divorced and have one minor child who lives with plaintiff in Michigan.
The divorce case, originally filed in Massachusetts, was transferred in Michigan. Defendant continued to live in that state, but at the time of these proceedings had relocated to New Hampshire. The child has a history of being contentious as to visiting his father.
The trial court appointed a guardian ad litem for the child who recommended defendant have continued parenting time, telephone contact, and the child receive mental health therapy.
The trial court adopted the recommendations and ordered them to be facilitated by the parties. Subsequently, when the order was not followed, defendant filed motions to show cause why the plaintiff should not be held in contempt for not complying with the requirements of the order.
The trial court issued two contempt orders related to the plaintiff's noncompliance with the parenting issues, including monetary sanctions. On appeal, she raised numerous reasons why the contempt orders should not be enforced. However, the court held, inter alia, the contempt orders were not reversible on the basis of a technical violation of MCR 3.606(A), the trial court had jurisdiction to issue them, and affirmed. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.
Misc.
Relevant to this appeal, the trial court ordered parenting time for defendant, including two weeks of summer visitation commencing June 30, 2007, and that defendant have at least 10 minutes weekly telephone contact with the child.
On July 17, 2007, defendant filed a motion for the issuance of an order to show causewhy plaintiff should not be held in contempt because the ordered summer visitation andtelephone contact did not occur.
On July 18, 2007, the trial court issued its order to show cause and after a July 27, 2007, hearing, found plaintiff in contempt. The court ordered that defendant be provided re-scheduled summer visitation from August 5, 2007 through August 19, 2007.
The contempt order also sanctioned plaintiff $1,000 to be paid by August 29, 2007. The court reserved defendant's request for attorney fees. Plaintiff appeals this order in Docket No. 285095.Plaintiff did not pay the $1,000 sanctions.
Also, the court-ordered August visitation didnot occur, and defendant did not have parenting time for Thanksgiving 2007. On December 12, 2007, defendant filed another motion for an order to show cause why plaintiff should not be held in contempt of court for failing to comply with the trial court's orders.
The trial court, again, ordered plaintiff to pay both the previously ordered $1,000 sanction and an additional $3,100 to pay defendant's counsel an attorney fee. In addition, the court ordered that the parties continue to attend family reconciliation counseling and warned that plaintiff would be sanctioned $2,000 if she failed to cooperate with the counselor.
The court's December 19, 2007, order also included specific travel plans for the child to visit defendant during his Christmas parenting time.
On January 31, 2008, defendant filed yet another motion for an order to show cause whyplaintiff should not be held in contempt for failing to pay the $4,100 in sanctions and attorney fees arising out of the July 27 and December 19, 2007, show cause hearings and for not cooperating with the family counselor by not approving a consent order the counselor required to clarify her authority and fees.
At a February 13, 2008, show cause hearing, the trial court found plaintiff in contempt and ordered plaintiff jailed for two days unless she paid the $4,100.
The court also sanctioned plaintiff $2,000 for her failure to cooperate with the family counselor by not signing the consent order. The trial court entered a separate order containing the provisionsof the proposed consent order by appointing the family counselor as the parties' child specialist and addressing her fees and authority.
Plaintiff first argues that the trial court abused its discretion by finding her in contemptbecause the proceedings were criminal, not civil.
Plaintiff contends she was punished forviolating the trial court's June 25, 2007, order, but was not accorded the procedural protection of a criminal contempt proceeding. Moreover, she argues that because an order to show cause was issued without a supporting affidavit as required by MCR 3.606(A), the trial court lacked jurisdiction over the contempt proceeding. The Court disagreed.
The Court First, rejected plaintiff's argument that the contempt proceedings at issue here were criminal. "Criminal contempt differs from civil contempt in that the sanctions are punitive rather than remedial." DeGeorge, supra at 594. "Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both."
In re Contempt of Henry, 282 Mich App 656, 666; 765 NW2d 44 (2009) (citations omitted).
When a court exercises its criminal contempt power it is not attempting to force the contemnor to comply with an order but is simply punishing the contemnor for past misconduct that was an affront to the court's dignity.
On the other hand, if the court employs its contempt power tocoerce compliance with a present or future obligation or to reimburse the complainant for costs incurred by the contemptuous behavior, including attorney fees, the proceedings are civil. In re Contempt of Dougherty, 429 Mich 81, 91-96; 413 NW2d 392 (1987); In re Contempt of Calcutt,Thus, there "are two types of civil contempt sanctions, coercive and compensatory." Dougherty, supra at 97.
Nevertheless, civil sanctions primarily intended to compel the contemnor to comply with the court's order may also have a punitive effect. Id. at 93; DeGeorge, supra at 592. "`
If the contempt consists in the refusal of a party to do something which he is ordered to do for the benefit or advantage of the opposite party, the process is civil . . . . The order in such a case is not in the nature of a punishment, but is coercive, to compel him to act in accordance with the order of the court.'" Dougherty, supra at 95-96, quoting People ex rel Attorney General v Yarowsky, 236 Mich 169,171-172; 210 NW 246 (1926) (citation omitted).
Differentiating between civil contempt and criminal contempt is not easy because bothforms of contempt might result in the contemnor's being imprisoned for willfully failing to comply with an order of the court. MCL 600.1701; MCL 600.1715.
Thus, all contempt proceedings are referred to as "quasi-criminal" or "criminal in nature." In re Contempt of Dougherty, 429 Mich 81, 90; 413 NW2d 392 (1987), citing Bessette v W B Conkey Co, 194 US 324, 326; 24 S Ct 665; 48 L Ed 997 (1904), and Moskovitz, Contempt of injunctions, civil and criminal, 43 Colum L R 780 (1943).
The distinction between civil and criminal contempt is important because "a criminal contempt proceeding requires some, but not all, of the due process safeguards of an ordinary criminal trial." Dougherty, supra at 91.
A party charged with criminal contempt is presumed innocent, enjoys the right against self-incrimination, and the contempt must be proven beyond a reasonable doubt. DeGeorge, supra at 594; Jaikins, supra at 120-121.Further, a party accused of criminal contempt must be "be informed of the nature of the charge against him or her and to be given adequate opportunity to prepare a defense and to secure the assistance of counsel." DeGeorge, supra at 594.
In contrast, in a civil contempt proceeding, the accused must be accorded rudimentary due process, i.e., notice and an opportunity to present a defense, and the party seeking enforcement of the court's order bears the burden of proving by apreponderance of the evidence that the order was violated. Bowler v Bowler, 351 Mich 398, 405; 88 NW2d 505 (1958); Auto Club, supra at 712-713.
Here the trial court was not trying to punish plaintiff for past misconduct because its dignity had been offended; it was instead attempting to coerce plaintiff into complying with its orders for parenting time and related orders intended to facilitate defendant's right to parenting time with his son.
On entry of the contempt order of July 27, 2007, plaintiff could purgeherself of contempt by paying the $1,000 sanction and complying with the order for specific makeup visitation. See Auto Club, supra at 712 ("Civil contempt ends when the contemnor complies with the court's order or is no longer able to do so and pays any fines or costs for the contempt proceedings.");
In a case the Court held that contempt proceedings to enforce court-ordered visitation were civil and the trial court erred when it did not permit the contemptuous party to purge himself from contempt.
The case went on to address several other issues. Here we just explored the civil nature of a Domestic ( Family Law) contempt proceedings.
In domestic cases possibly we should include financial sanctions for n on compliance of parenting and support orders.
Posted here by Terry Bankert
http://www.flingtfamilylaw.com
Tuesday, April 28, 2009
Dad wins Custody, joint!
FlintFamilyLaw.com
- CUSTODY-HOT OFF THE PRESS-
This article by Flint Divorce Lawyer Terry Bankert. Family Law Attorney Bankert practices exclusively in Family Law. The Bankerts Lynn ( office manager) and Terry
( Divorce Lawyer) are there for you when you call. You will be an important client.
The Michigan Court of Appeals on 4/21/09 released the following "unpublished opinion from a case out of the Delta Circuit Court.
Issues: Custody; Whether the trial court correctly concluded an established custodial environment did not exist with either party; MCL 722.28; Fletcher v. Fletcher; Rittershaus v. Rittershaus; Baker v. Baker; Hayes v. Hayes; Foskett v. Foskett; Bowers v. Bowers
The case LC No. 08-019370-DM had as parties Ballo v. Branstrom.
THE MICHIGAN COURT OF APPEALS TOLD THE JUDGE OF THE DELTA CIRCUIT COURT THEIR DECISION WAS WRONG.
The trial court's finding an established custodial environment did not exist with either party was against the great weight of the evidence.
DAD WAS RIGHT WHEN HE ARGUED HE SHOULD HAVE JOINT PHYSICAL CUSTODY
The defendant-father appealed the trial court's order granting him and the plaintiff-mother joint legal custody and plaintiff sole physical custody of the parties' minor children. The court concluded the trial court should have determined an established custodial environment existed with both parties.
WHEN DAD IS ACTIVELY INVOLVED IN THE CHILDS LIFE HE SHOULD GET JOINT PHYSICAL CUSTODY
The testimony showed since the children's birth both defendant and plaintiff had provided for their needs. The testimony also demonstrated the children had always looked to both defendant and plaintiff for discipline, guidance, the necessities of life, and parental comfort. There was no indication in the record any of this changed after the parties separated or at any time before the divorce hearing.
THE KIDS WERE NOT SHUFFLED BACK AND FORTH
While it is true repeated custodial changes can destroy a previously established custodial environment, unlike the children in Baker and Bowers the children in this case were not shuffled back and forth between multiple homes and various states, or subjected to multiple and repeated changes in custody.
THE CHILDRENS LIVES HAD INCLUDED QUALITY TIME WITH DAD AND IT SHOULD STAY THAT WAY
The children's time was simply split between two homes in the same state, one of which they had lived in since they were born. Further, the past exchanges of the children between the parties were "not so irregular or impromptu as to create uncertainty in the children's lives or destroy their expectations of permanency." Reversed and remanded.
DO IT YOUR SELF?
Need help getting fee waives, pleading and judgement preparation? Just a few unresolved issue? We offer mediation with an attorney and pleading and order preparation at a very reasonable fee for divorce or child support adjustments.
Did you know your cost of filing could be waived?
Contact attorney Terry Bankert http://flintfamilylaw.com/ 810-235-1970
- CUSTODY-HOT OFF THE PRESS-
This article by Flint Divorce Lawyer Terry Bankert. Family Law Attorney Bankert practices exclusively in Family Law. The Bankerts Lynn ( office manager) and Terry
( Divorce Lawyer) are there for you when you call. You will be an important client.
The Michigan Court of Appeals on 4/21/09 released the following "unpublished opinion from a case out of the Delta Circuit Court.
Issues: Custody; Whether the trial court correctly concluded an established custodial environment did not exist with either party; MCL 722.28; Fletcher v. Fletcher; Rittershaus v. Rittershaus; Baker v. Baker; Hayes v. Hayes; Foskett v. Foskett; Bowers v. Bowers
The case LC No. 08-019370-DM had as parties Ballo v. Branstrom.
THE MICHIGAN COURT OF APPEALS TOLD THE JUDGE OF THE DELTA CIRCUIT COURT THEIR DECISION WAS WRONG.
The trial court's finding an established custodial environment did not exist with either party was against the great weight of the evidence.
DAD WAS RIGHT WHEN HE ARGUED HE SHOULD HAVE JOINT PHYSICAL CUSTODY
The defendant-father appealed the trial court's order granting him and the plaintiff-mother joint legal custody and plaintiff sole physical custody of the parties' minor children. The court concluded the trial court should have determined an established custodial environment existed with both parties.
WHEN DAD IS ACTIVELY INVOLVED IN THE CHILDS LIFE HE SHOULD GET JOINT PHYSICAL CUSTODY
The testimony showed since the children's birth both defendant and plaintiff had provided for their needs. The testimony also demonstrated the children had always looked to both defendant and plaintiff for discipline, guidance, the necessities of life, and parental comfort. There was no indication in the record any of this changed after the parties separated or at any time before the divorce hearing.
THE KIDS WERE NOT SHUFFLED BACK AND FORTH
While it is true repeated custodial changes can destroy a previously established custodial environment, unlike the children in Baker and Bowers the children in this case were not shuffled back and forth between multiple homes and various states, or subjected to multiple and repeated changes in custody.
THE CHILDRENS LIVES HAD INCLUDED QUALITY TIME WITH DAD AND IT SHOULD STAY THAT WAY
The children's time was simply split between two homes in the same state, one of which they had lived in since they were born. Further, the past exchanges of the children between the parties were "not so irregular or impromptu as to create uncertainty in the children's lives or destroy their expectations of permanency." Reversed and remanded.
DO IT YOUR SELF?
Need help getting fee waives, pleading and judgement preparation? Just a few unresolved issue? We offer mediation with an attorney and pleading and order preparation at a very reasonable fee for divorce or child support adjustments.
Did you know your cost of filing could be waived?
Contact attorney Terry Bankert http://flintfamilylaw.com/ 810-235-1970
Friday, April 10, 2009
Mom get Physical custody, wins on Best Interest Test
"KNOW THE LAW"
Attorney Terry Bankert 4/10-11/09
Www.FlintFamilyLaw.com
Today’s issues are hot "Off the Press" released by the Michigan Court of Appeals on 4/2/09.
Flint Divorce Attorney Terry Bankert has modified (consult an attorney before reliance,) this opinion for media presentation, written, radio and internet TV. Flint Divorce Lawyer Terry Bankert practices exclusively in Michigan Family Law. Www.DivorceLawGuy.com
These issues will be discussed on WFLT 1420 AM Radio 9-9:30 AM Saturday 4/11/09. Program "Know The Law"It is a call in program. If you have questions call 1-810-239-5733.
Www.GeneseeCountyLaw.com
Issues:
MOM WANTS TO CHANGE CUSTODY
1.Custody; Whether the trial court properly granted the defendant-mother's motion for a change of physical custody of the parties' minor children; MCL 722.28; Mason v. Simmons; MCL 722.27(1)(c); Powery v. Wells; Schlender v. Schlender; Fletcher v. Fletcher; Berger v. Berger;
DID THE LOWER HANDLE THE BEST INTEREST FACTORS RIGHT?
2.Whether the trial court's findings as to several child custody factors were against the great weight of the evidence;
DAD NEEDED MORE TIME COURT SAID NO
3.Denial of the plaintiff-father's request for an adjournment; Soumis v. Soumis; MCR 2.503(C)(1) and (2);
THE POWER OF FREIND OF THE COURT
4.Admission of the FOC report over plaintiff's objection at the evidentiary hearing; Duperon v. Duperon
[If you have question email me at www.FlintDivorce.com ]
*
/opinions/appeals/2009/031209/42134.pdf/opinions/appeals/2009/031209/42134.pdfS 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
CHRISTOPHER J. STARK, Plaintiff-Appellant, UNPUBLISHED
April 2, 2009, v No. 287314 ,Kent Circuit Court ,CYNTHIA L. STARK,
LC No. 99-005236-DM ,e-Journal Number: 42360
Defendant-Appellee.Before: Sawyer, P.J., and Zahra and Shapiro, JJ.
PER CURIAM.
Full article posted at http://terrybankert.blogspot.com/
COMPLETE ARTICLE AFTER CAPTION FOLLOWS
*
Plaintiff Christopher Stark appeals as of right the trial court’s August 1, 2008 order,
which granted defendant Cynthia Stark’s motion for a change in physical custody of the parties’
two minor children. We affirm.
I. CHANGE OF CUSTODY, COURTS CANNOT ABUSE DISCRETION
Plaintiff first argues that the trial court abused its discretion in concluding that a change
in custody was in the children’s best interests.
A. WHAT IS THE STANDARD OF REVIEW
This Court must affirm a trial court’s custody order unless the trial court made factual
findings against the great weight of the evidence, committed a palpable abuse of discretion, or
made a clear legal error on a major issue. MCL 722.28; Mason v Simmons, 267 Mich App 188,
194; 704 NW2d 104 (2005).
CLEAR AND CONVINCING EVIDENCE NEEDED TO CHANGE CUSTODY
Modification of an established custodial environment requires clear
and convincing evidence that the change is in the best interest of the child. MCL 722.27(1)(c);
Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008).
THE COURT MUST USE THE BEST INTEREST FACTORS
The trial court must weigh the statutory best interest factors enumerated in MCL 722.23 and make a factual finding regarding each factor. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
" A [TRIAL]court’s ultimate finding regarding a particular factor is a factual finding that can be set aside if it is against the great weight of the evidence." Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
Therefore, a trial court’s findings "with respect to each factor regarding the best
interests of the child under MCL 722.23 should be affirmed unless the evidence clearly
preponderates in the opposite direction." Berger v Berger, 277 Mich App 700, 706; 747 NW2d
336 (2008).
B. Analysis
1ST QUESTION , WHERE IS THE CUSTODIAL ENVIRONMENT
In this case, the trial court found that a custodial environment existed with plaintiff and
properly weighed each of the best interest factors.
CLEAR AND CONVINCING EVIDENCE NEEDED
After weighing the best interest factors, the trial court found that a change was warranted by clear and convincing evidence. Specifically, the trial court found that factors (a), (b), (d), (e), (f), (h), (j), (k), and (l) favored defendant, that plaintiff was favored on factor (c), and that the parties were equal with regard to factor (g).
Plaintiff challenges the trial court’s findings of fact pertaining to factors (a), (b), (d), (e), (f), (h),
(j), (k), and (l) of the best interest factors, arguing that the findings were against the great weight
of the evidence.
FACTOR A
Factor (a) refers to "[t]he love, affection, and other emotional ties existing between the
parties involved and the child." MCL 722.23(a). The trial court found that plaintiff’s emotional
relationship with the children was severely damaged because of pornography found in the home,
excessive use of corporal punishment, and uneven treatment of the children. There was ample
evidence showing a strained emotional tie between plaintiff and the children. The parties’ son
was very angry with plaintiff and refused to see plaintiff because of plaintiff’s punishment
techniques and the perceived disparate treatment amongst the children. In addition, the parties’
daughter had unresolved fear and anxiety stemming from the pornography in plaintiff’s house
and his use of corporal punishment. Furthermore, plaintiff admitted that he had declined to take
the steps necessary to continue supervised visitation and strengthen the emotional tie. The
evidence does not clearly preponderate against the trial court’s finding that this factor favored
defendant.
FACTOR B
Factor (b) requires the trial court to consider "[t]he capacity and disposition of the parties
involved to give the child love, affection, and guidance and to continue the education and raising
of the child in his or her religion or creed, if any." MCL 722.23(b). The trial court found that
defendant had a greater disposition to fulfill this factor because the children harbored unresolved
fear and anger against plaintiff. The trial court recognized that plaintiff met this factor in the
past, but after a specific incident on August 28, plaintiff failed to provide the intervention
necessary for "healing and restoration of relationships." David Bosworth testified that the
children found more comfort with defendant despite spending the majority of their time with
plaintiff. In addition, both of the children had unresolved anger towards plaintiff, but he has
refused to exchange letters through the children’s therapist to repair the relationship.
Accordingly, the trial court’s finding that this factor favors defendant is not against the great
weight of the evidence.
FACTOR D
In regards to factor (d), "[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity," MCL 722.23(d), the trial court
found that defendant enjoyed custody of the children since the August 28 incident and was in a
stable relationship and environment for several years while plaintiff’s home was less stable
because of the use of corporal punishment and pornography in the home. Defendant testified
that she has lived with her boyfriend for four years and that they had recently purchased a house.
Plaintiff lived with his partner and had two other roommates until April 2008, and while in
plaintiff’s custody, the children were exposed to pornography and received excessive corporal
punishment. Accordingly, the trial court’s finding that this factor favors defendant is not against
the great weight of the evidence.
FACTOR E
As for factor (e), "[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes," MCL 722.23(e), the trial court found that defendant’s living situation
exhibited more permanence than plaintiff’s situation. Defendant testified that she was in a fouryear,
stable relationship with her boyfriend and that she planned to move into a house in August
2008. The new house was located in the children’s school district and would not result in a
change of school. Plaintiff lives in a four bedroom duplex with his partner. While in custody of
the children, plaintiff has had other partners and roommates living with him and has lived in a
number of different places, including defendant’s home. Therefore, the trial court’s
determination of this factor is consistent with the evidence on the record and was not against the
great weight of the evidence.
FACTOR F
Factor (f) "[t]he moral fitness of the parties involved," MCL 722.23(f), relates to the
parent-child relationship and the effect that any identified conduct at issue may have on that
relationship. Fletcher, supra at 887. Conduct relevant to this factor includes "verbal abuse,
drinking problems, driving record, physical or sexual abuse and other illegal or offensive
behaviors." Id. The trial court indicated that its primary concern on this factor was the
children’s exposure to pornography. Bosworth interviewed the children and determined that
they both had been exposed to inappropriate sexualized images and situations in plaintiff’s home.
Some of the sexual images were purposefully shown to the children by plaintiff and his partner.
Bosworth testified that exposure to sexual images and items caused the children to experience
anxiety and could be deleterious to their future development. Accordingly, the trial court’s
finding that this factor favors defendant is not against the great weight of the evidence.
The trial court found in favor of defendant with regard to factor (h), "[t]he home, school,
and community record of the child." MCL 722.23(h). The trial court commended plaintiff’s
efforts for establishing a foundation for the children’s educational successes; however, plaintiff’s
ongoing discipline regime was unhealthy and detrimental to the children’s development.
Bosworth testified that plaintiff’s discipline techniques were not suitable for someone with
special educational needs like the parties’ son. Plaintiff’s use of corporal punishment caused
both of the children to experience anxiety. Defendant on the other hand used a system of
privilege removal and timeouts, and the children were responsive to those techniques. Both of
the children found more comfort with defendant. Therefore, the trial court’s determination of
this factor is consistent with the evidence on the record and was not against the great weight of
the evidence.
FACTOR J
With regard to factor (j), "[t]he willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship between the child and the other
parent or the child and the parents," MCL 722.23(j), the trial court found that defendant
attempted to facilitate a strong relationship between the children and plaintiff while plaintiff was
unwilling to accept criticism of his past mistakes and had terminated contact with the children.
Bosworth testified that the parties are often inappropriate in the comments they make concerning
the other party; however, plaintiff’s criticisms are more prolific. In addition, during the
supervised visitation, William Edwards testified that defendant encouraged the parties’ reluctant
son to visit with plaintiff. Conversely, plaintiff refused to bring the children’s Christmas
presents or video game equipment to the supervised parenting time because he felt their property
should stay at his home. In addition, plaintiff refused to take the steps necessary to continue
supervised visitation. Accordingly, the trial court’s finding that this factor favors defendant is
not against the great weight of the evidence.
FACTOR K
Factor (k) refers to "[d]omestic violence, regardless of whether the violence was directed
against or witnessed by the child." MCL 722.23(k). The trial court found that there was a long
history of domestic violence between the parties and that both parties bear the responsibility to
change their behavior; however, the trial court found that more recent events were dispositive on
this issue. Defendant admitted that she was arrested twice for domestic violence against plaintiff
in the past and previously used corporal punishment with the children. Plaintiff recently used
corporal punishment as a motivation for the parties’ son to behave properly in school and used it
when he threatened to slap the parties’ daughter after she used "the Lord’s name in vain." In
addition, plaintiff was arrested after the August 28 incident because the son had red marks on his
neck and chest. Furthermore, Edwards testified that he was primarily concerned about emotional
abuse that may be occurring between the children and plaintiff. The children were more
comfortable with defendant because of the corporal punishment and pornography issues at
plaintiff’s household. Therefore, the trial court’s determination of this factor is consistent with
the evidence on the record and was not against the great weight of the evidence.
Factor (l) refers to "[a]ny other factor considered by the court to be relevant to a
particular child custody dispute." MCL 722.23(l). The trial court found that the parties’
daughter required special care because she was a victim of sexual abuse and that plaintiff did not
fully appreciate the situation and allowed the child to be exposed to pornography. Bosworth
testified that the child was intrigued by pornography and searched for pornographic images and
that plaintiff had not completely restricted access to the sexualized images and, in fact, had
shown some of them intentionally. Bosworth testified that the child was experiencing anxiety
because of her exposure to inappropriate adult images and that such exposure could cause further
deleterious effects. Accordingly, the trial court’s finding that this factor favors defendant is not
against the great weight of the evidence.
COURT PROPERLY CONSIDERED EACH FACTOR
Our review of the record indicates that the trial court properly considered each of the best
interest factors and made factual findings consistent with the record evidence. The majority of
the statutory factors weighed in favor of defendant and the great weight of the evidence
supported the challenged findings. Because the evidence did not clearly preponderate in the
opposite direction, and because the findings favored defendant, there is no basis on which to find
that the trial court abused its discretion in granting defendant sole custody of the children.
II. DAD WANTED ADJOURNMENT
Plaintiff next argues that the trial court erred in denying his request for an adjournment to
allow him more time to prepare for the hearing.
A. Standard of Review
This Court reviews a trial court’s decision on a motion for an adjournment for an abuse of
discretion. Soumis v Soumis, 218 Mich App 27, 32-33; 553 NW2d 619 (1996).
B. Analysis OF FATHERS REQUEST FOR ADJOURNMENT
An adjournment may be granted because of the unavailability of a witness or evidence,
but the motion "must be made as soon as possible after ascertaining the facts" and "only if the
court finds that the evidence is material and that diligent efforts have been made to produce the
witness or evidence." MCR 2.503(C)(1) and (2).
ADJOURNEMNT MUST BE FORE GOOD CAUSE
In addition, a motion for an adjournment must
be based on good cause, and a trial court may grant an adjournment to promote the cause of
justice. Soumis, supra at 32.
FATHER DID NOT ASK FOR THE ADJOURNMENT QUICK ENOUGH
Plaintiff’s claim that the trial court erred in refusing to grant his motion for an
adjournment is without merit because plaintiff’s motion for adjournment was not timely and was
not made for good cause.
FATHER WAS ILL AND WANTED ADJOURNMENT
Plaintiff moved for an adjournment three days before the hearing
because he was unable to reestablish supervised parenting time with the children and was unable
to communicate with his counsel preceding the hearing because of a prolonged illness. While we
do not question that plaintiff’s counsel suffered a prolonged illness before the hearing, the record
does not support that an adjournment was necessary. Counsel appeared in this matter on
February 20, 2008, and even without most of the month of May to prepare, he had more than two
months, including a full week before trial to prepare. Nothing in the record or in plaintiff’s
arguments on appeal indicates that certain witnesses or evidence was not presented because of
any lack of preparation. Further, plaintiff failed to articulate to the trial court, or to this Court,
how additional preparation would have benefited plaintiff. In addition, there was evidence that
plaintiff’s counsel was aware that Edwards suspended plaintiff’s supervised parenting time in
April 2008, and he discussed the matter with plaintiff. Plaintiff had ample time to address the
issue before the evidentiary hearing. Therefore, we conclude that plaintiff’s motion, made the
Friday before the hearing, was not only untimely, but was not made for good cause. The trial
court did not abuse its discretion in denying plaintiff’s motion.
III. THE POWERFUL FRIEND OF THE COURT REPORT
Plaintiff next argues that the trial court erred in admitting the Friend of the Court (FOC)
report over his objection at the evidentiary hearing.
A. Standard of Review
A trial court’s evidentiary decision is reviewed for an abuse of discretion. Waknin v
Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).
B. Analysis ENTERING INTO A TRIAL THE FRIEND OF THE COURT REPORT WITHOUT TESTIMONY?
We reject defendant’s contention that the trial court erred in admitting the FOC report at
the evidentiary hearing. In rendering its opinion, the trial court never referred to the FOC report
and did not rely on the report as the basis for its decision. The trial court based its opinion upon
competent evidence adduced at the hearing. The trial court’s modification of the custody order
was proper.
Affirmed.
/s/ David H. Sawyer
/s/ Brian K. Zahra
/s/ Douglas B. Shapiro
[Comments of Flint Lawyer Terry Bankert are found within Brackets or CAP Headlines. Spacing has been changed for readability-trb]
END ARTICLE
Posted here by Terry Bankert http://www.flintdivorce.com/ You are invited to continue these discussions on my face book. http://www.facebook.com/people/Terry-Bankert/645845362
Attorney Terry Bankert 4/10-11/09
Www.FlintFamilyLaw.com
Today’s issues are hot "Off the Press" released by the Michigan Court of Appeals on 4/2/09.
Flint Divorce Attorney Terry Bankert has modified (consult an attorney before reliance,) this opinion for media presentation, written, radio and internet TV. Flint Divorce Lawyer Terry Bankert practices exclusively in Michigan Family Law. Www.DivorceLawGuy.com
These issues will be discussed on WFLT 1420 AM Radio 9-9:30 AM Saturday 4/11/09. Program "Know The Law"It is a call in program. If you have questions call 1-810-239-5733.
Www.GeneseeCountyLaw.com
Issues:
MOM WANTS TO CHANGE CUSTODY
1.Custody; Whether the trial court properly granted the defendant-mother's motion for a change of physical custody of the parties' minor children; MCL 722.28; Mason v. Simmons; MCL 722.27(1)(c); Powery v. Wells; Schlender v. Schlender; Fletcher v. Fletcher; Berger v. Berger;
DID THE LOWER HANDLE THE BEST INTEREST FACTORS RIGHT?
2.Whether the trial court's findings as to several child custody factors were against the great weight of the evidence;
DAD NEEDED MORE TIME COURT SAID NO
3.Denial of the plaintiff-father's request for an adjournment; Soumis v. Soumis; MCR 2.503(C)(1) and (2);
THE POWER OF FREIND OF THE COURT
4.Admission of the FOC report over plaintiff's objection at the evidentiary hearing; Duperon v. Duperon
[If you have question email me at www.FlintDivorce.com ]
*
/opinions/appeals/2009/031209/42134.pdf/opinions/appeals/2009/031209/42134.pdfS 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
CHRISTOPHER J. STARK, Plaintiff-Appellant, UNPUBLISHED
April 2, 2009, v No. 287314 ,Kent Circuit Court ,CYNTHIA L. STARK,
LC No. 99-005236-DM ,e-Journal Number: 42360
Defendant-Appellee.Before: Sawyer, P.J., and Zahra and Shapiro, JJ.
PER CURIAM.
Full article posted at http://terrybankert.blogspot.com/
COMPLETE ARTICLE AFTER CAPTION FOLLOWS
*
Plaintiff Christopher Stark appeals as of right the trial court’s August 1, 2008 order,
which granted defendant Cynthia Stark’s motion for a change in physical custody of the parties’
two minor children. We affirm.
I. CHANGE OF CUSTODY, COURTS CANNOT ABUSE DISCRETION
Plaintiff first argues that the trial court abused its discretion in concluding that a change
in custody was in the children’s best interests.
A. WHAT IS THE STANDARD OF REVIEW
This Court must affirm a trial court’s custody order unless the trial court made factual
findings against the great weight of the evidence, committed a palpable abuse of discretion, or
made a clear legal error on a major issue. MCL 722.28; Mason v Simmons, 267 Mich App 188,
194; 704 NW2d 104 (2005).
CLEAR AND CONVINCING EVIDENCE NEEDED TO CHANGE CUSTODY
Modification of an established custodial environment requires clear
and convincing evidence that the change is in the best interest of the child. MCL 722.27(1)(c);
Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008).
THE COURT MUST USE THE BEST INTEREST FACTORS
The trial court must weigh the statutory best interest factors enumerated in MCL 722.23 and make a factual finding regarding each factor. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
" A [TRIAL]court’s ultimate finding regarding a particular factor is a factual finding that can be set aside if it is against the great weight of the evidence." Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
Therefore, a trial court’s findings "with respect to each factor regarding the best
interests of the child under MCL 722.23 should be affirmed unless the evidence clearly
preponderates in the opposite direction." Berger v Berger, 277 Mich App 700, 706; 747 NW2d
336 (2008).
B. Analysis
1ST QUESTION , WHERE IS THE CUSTODIAL ENVIRONMENT
In this case, the trial court found that a custodial environment existed with plaintiff and
properly weighed each of the best interest factors.
CLEAR AND CONVINCING EVIDENCE NEEDED
After weighing the best interest factors, the trial court found that a change was warranted by clear and convincing evidence. Specifically, the trial court found that factors (a), (b), (d), (e), (f), (h), (j), (k), and (l) favored defendant, that plaintiff was favored on factor (c), and that the parties were equal with regard to factor (g).
Plaintiff challenges the trial court’s findings of fact pertaining to factors (a), (b), (d), (e), (f), (h),
(j), (k), and (l) of the best interest factors, arguing that the findings were against the great weight
of the evidence.
FACTOR A
Factor (a) refers to "[t]he love, affection, and other emotional ties existing between the
parties involved and the child." MCL 722.23(a). The trial court found that plaintiff’s emotional
relationship with the children was severely damaged because of pornography found in the home,
excessive use of corporal punishment, and uneven treatment of the children. There was ample
evidence showing a strained emotional tie between plaintiff and the children. The parties’ son
was very angry with plaintiff and refused to see plaintiff because of plaintiff’s punishment
techniques and the perceived disparate treatment amongst the children. In addition, the parties’
daughter had unresolved fear and anxiety stemming from the pornography in plaintiff’s house
and his use of corporal punishment. Furthermore, plaintiff admitted that he had declined to take
the steps necessary to continue supervised visitation and strengthen the emotional tie. The
evidence does not clearly preponderate against the trial court’s finding that this factor favored
defendant.
FACTOR B
Factor (b) requires the trial court to consider "[t]he capacity and disposition of the parties
involved to give the child love, affection, and guidance and to continue the education and raising
of the child in his or her religion or creed, if any." MCL 722.23(b). The trial court found that
defendant had a greater disposition to fulfill this factor because the children harbored unresolved
fear and anger against plaintiff. The trial court recognized that plaintiff met this factor in the
past, but after a specific incident on August 28, plaintiff failed to provide the intervention
necessary for "healing and restoration of relationships." David Bosworth testified that the
children found more comfort with defendant despite spending the majority of their time with
plaintiff. In addition, both of the children had unresolved anger towards plaintiff, but he has
refused to exchange letters through the children’s therapist to repair the relationship.
Accordingly, the trial court’s finding that this factor favors defendant is not against the great
weight of the evidence.
FACTOR D
In regards to factor (d), "[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity," MCL 722.23(d), the trial court
found that defendant enjoyed custody of the children since the August 28 incident and was in a
stable relationship and environment for several years while plaintiff’s home was less stable
because of the use of corporal punishment and pornography in the home. Defendant testified
that she has lived with her boyfriend for four years and that they had recently purchased a house.
Plaintiff lived with his partner and had two other roommates until April 2008, and while in
plaintiff’s custody, the children were exposed to pornography and received excessive corporal
punishment. Accordingly, the trial court’s finding that this factor favors defendant is not against
the great weight of the evidence.
FACTOR E
As for factor (e), "[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes," MCL 722.23(e), the trial court found that defendant’s living situation
exhibited more permanence than plaintiff’s situation. Defendant testified that she was in a fouryear,
stable relationship with her boyfriend and that she planned to move into a house in August
2008. The new house was located in the children’s school district and would not result in a
change of school. Plaintiff lives in a four bedroom duplex with his partner. While in custody of
the children, plaintiff has had other partners and roommates living with him and has lived in a
number of different places, including defendant’s home. Therefore, the trial court’s
determination of this factor is consistent with the evidence on the record and was not against the
great weight of the evidence.
FACTOR F
Factor (f) "[t]he moral fitness of the parties involved," MCL 722.23(f), relates to the
parent-child relationship and the effect that any identified conduct at issue may have on that
relationship. Fletcher, supra at 887. Conduct relevant to this factor includes "verbal abuse,
drinking problems, driving record, physical or sexual abuse and other illegal or offensive
behaviors." Id. The trial court indicated that its primary concern on this factor was the
children’s exposure to pornography. Bosworth interviewed the children and determined that
they both had been exposed to inappropriate sexualized images and situations in plaintiff’s home.
Some of the sexual images were purposefully shown to the children by plaintiff and his partner.
Bosworth testified that exposure to sexual images and items caused the children to experience
anxiety and could be deleterious to their future development. Accordingly, the trial court’s
finding that this factor favors defendant is not against the great weight of the evidence.
The trial court found in favor of defendant with regard to factor (h), "[t]he home, school,
and community record of the child." MCL 722.23(h). The trial court commended plaintiff’s
efforts for establishing a foundation for the children’s educational successes; however, plaintiff’s
ongoing discipline regime was unhealthy and detrimental to the children’s development.
Bosworth testified that plaintiff’s discipline techniques were not suitable for someone with
special educational needs like the parties’ son. Plaintiff’s use of corporal punishment caused
both of the children to experience anxiety. Defendant on the other hand used a system of
privilege removal and timeouts, and the children were responsive to those techniques. Both of
the children found more comfort with defendant. Therefore, the trial court’s determination of
this factor is consistent with the evidence on the record and was not against the great weight of
the evidence.
FACTOR J
With regard to factor (j), "[t]he willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship between the child and the other
parent or the child and the parents," MCL 722.23(j), the trial court found that defendant
attempted to facilitate a strong relationship between the children and plaintiff while plaintiff was
unwilling to accept criticism of his past mistakes and had terminated contact with the children.
Bosworth testified that the parties are often inappropriate in the comments they make concerning
the other party; however, plaintiff’s criticisms are more prolific. In addition, during the
supervised visitation, William Edwards testified that defendant encouraged the parties’ reluctant
son to visit with plaintiff. Conversely, plaintiff refused to bring the children’s Christmas
presents or video game equipment to the supervised parenting time because he felt their property
should stay at his home. In addition, plaintiff refused to take the steps necessary to continue
supervised visitation. Accordingly, the trial court’s finding that this factor favors defendant is
not against the great weight of the evidence.
FACTOR K
Factor (k) refers to "[d]omestic violence, regardless of whether the violence was directed
against or witnessed by the child." MCL 722.23(k). The trial court found that there was a long
history of domestic violence between the parties and that both parties bear the responsibility to
change their behavior; however, the trial court found that more recent events were dispositive on
this issue. Defendant admitted that she was arrested twice for domestic violence against plaintiff
in the past and previously used corporal punishment with the children. Plaintiff recently used
corporal punishment as a motivation for the parties’ son to behave properly in school and used it
when he threatened to slap the parties’ daughter after she used "the Lord’s name in vain." In
addition, plaintiff was arrested after the August 28 incident because the son had red marks on his
neck and chest. Furthermore, Edwards testified that he was primarily concerned about emotional
abuse that may be occurring between the children and plaintiff. The children were more
comfortable with defendant because of the corporal punishment and pornography issues at
plaintiff’s household. Therefore, the trial court’s determination of this factor is consistent with
the evidence on the record and was not against the great weight of the evidence.
Factor (l) refers to "[a]ny other factor considered by the court to be relevant to a
particular child custody dispute." MCL 722.23(l). The trial court found that the parties’
daughter required special care because she was a victim of sexual abuse and that plaintiff did not
fully appreciate the situation and allowed the child to be exposed to pornography. Bosworth
testified that the child was intrigued by pornography and searched for pornographic images and
that plaintiff had not completely restricted access to the sexualized images and, in fact, had
shown some of them intentionally. Bosworth testified that the child was experiencing anxiety
because of her exposure to inappropriate adult images and that such exposure could cause further
deleterious effects. Accordingly, the trial court’s finding that this factor favors defendant is not
against the great weight of the evidence.
COURT PROPERLY CONSIDERED EACH FACTOR
Our review of the record indicates that the trial court properly considered each of the best
interest factors and made factual findings consistent with the record evidence. The majority of
the statutory factors weighed in favor of defendant and the great weight of the evidence
supported the challenged findings. Because the evidence did not clearly preponderate in the
opposite direction, and because the findings favored defendant, there is no basis on which to find
that the trial court abused its discretion in granting defendant sole custody of the children.
II. DAD WANTED ADJOURNMENT
Plaintiff next argues that the trial court erred in denying his request for an adjournment to
allow him more time to prepare for the hearing.
A. Standard of Review
This Court reviews a trial court’s decision on a motion for an adjournment for an abuse of
discretion. Soumis v Soumis, 218 Mich App 27, 32-33; 553 NW2d 619 (1996).
B. Analysis OF FATHERS REQUEST FOR ADJOURNMENT
An adjournment may be granted because of the unavailability of a witness or evidence,
but the motion "must be made as soon as possible after ascertaining the facts" and "only if the
court finds that the evidence is material and that diligent efforts have been made to produce the
witness or evidence." MCR 2.503(C)(1) and (2).
ADJOURNEMNT MUST BE FORE GOOD CAUSE
In addition, a motion for an adjournment must
be based on good cause, and a trial court may grant an adjournment to promote the cause of
justice. Soumis, supra at 32.
FATHER DID NOT ASK FOR THE ADJOURNMENT QUICK ENOUGH
Plaintiff’s claim that the trial court erred in refusing to grant his motion for an
adjournment is without merit because plaintiff’s motion for adjournment was not timely and was
not made for good cause.
FATHER WAS ILL AND WANTED ADJOURNMENT
Plaintiff moved for an adjournment three days before the hearing
because he was unable to reestablish supervised parenting time with the children and was unable
to communicate with his counsel preceding the hearing because of a prolonged illness. While we
do not question that plaintiff’s counsel suffered a prolonged illness before the hearing, the record
does not support that an adjournment was necessary. Counsel appeared in this matter on
February 20, 2008, and even without most of the month of May to prepare, he had more than two
months, including a full week before trial to prepare. Nothing in the record or in plaintiff’s
arguments on appeal indicates that certain witnesses or evidence was not presented because of
any lack of preparation. Further, plaintiff failed to articulate to the trial court, or to this Court,
how additional preparation would have benefited plaintiff. In addition, there was evidence that
plaintiff’s counsel was aware that Edwards suspended plaintiff’s supervised parenting time in
April 2008, and he discussed the matter with plaintiff. Plaintiff had ample time to address the
issue before the evidentiary hearing. Therefore, we conclude that plaintiff’s motion, made the
Friday before the hearing, was not only untimely, but was not made for good cause. The trial
court did not abuse its discretion in denying plaintiff’s motion.
III. THE POWERFUL FRIEND OF THE COURT REPORT
Plaintiff next argues that the trial court erred in admitting the Friend of the Court (FOC)
report over his objection at the evidentiary hearing.
A. Standard of Review
A trial court’s evidentiary decision is reviewed for an abuse of discretion. Waknin v
Chamberlain, 467 Mich 329, 332; 653 NW2d 176 (2002).
B. Analysis ENTERING INTO A TRIAL THE FRIEND OF THE COURT REPORT WITHOUT TESTIMONY?
We reject defendant’s contention that the trial court erred in admitting the FOC report at
the evidentiary hearing. In rendering its opinion, the trial court never referred to the FOC report
and did not rely on the report as the basis for its decision. The trial court based its opinion upon
competent evidence adduced at the hearing. The trial court’s modification of the custody order
was proper.
Affirmed.
/s/ David H. Sawyer
/s/ Brian K. Zahra
/s/ Douglas B. Shapiro
[Comments of Flint Lawyer Terry Bankert are found within Brackets or CAP Headlines. Spacing has been changed for readability-trb]
END ARTICLE
Posted here by Terry Bankert http://www.flintdivorce.com/ You are invited to continue these discussions on my face book. http://www.facebook.com/people/Terry-Bankert/645845362
Monday, April 06, 2009
Child Support and Mediation
CHILD SUPPORT
Child support may be awarded pursuant to several Michigan statutes, including the Divorce Act, the Paternity Act (when the child’s parents are not married to each other and the paternity of the child is at issue), and the Family Support Act (FSA) (when the parents are married to each other but have not filed for divorce, or the parents are not married to each other but paternity is acknowledged). These acts are under the exclusive jurisdiction of the family division of the circuit court and are enforceable under the Support and Parenting Time Enforcement Act (SPTEA).
A child has an inherent right to the support of his or her natural or adoptive parents. If there is no biological or adoptive relationship giving rise to a support obligation, a child is usually not entitled to support. However, courts have imposed support obligations on a nonparent based on the doctrines of equitable estoppel and equitable parenthood where the nonparent represents himself or herself to be the parent of the child for many years even though the person knew he or she was not the biological parent.
All child support calculations, including for interim orders and requests for modification, must begin with application of the Michigan Child Support Formula. The Michigan formula is based on the needs of the child and the actual resources of each parent. The court must order support in an amount determined by applying the child support formula or may enter a support order that deviates from the formula if application of the formula would be unjust or inappropriate. Parents may not bargain away a child’s right to adequate support, and the parties may not usurp the court’s statutory authority by agreeing to limit the amount of support. Provisions that attempt to put a ceiling on the support available in the future are unenforceable.
MEDIATION
If you and your spouse when considering divorce differ only on a few issues I suggest you use the Mediation Process.
One fundamental premise of the mediation process is self-determination. When parties have complete and thorough information and understanding about the substantive matters of their dispute coupled with a complete and thorough understanding of the risks or unknowns involved with their dispute, they are able to made substantive decisions that consider all of that information. A mediator feels confidence in the substantive decisions of the parties, when he/she recognizes the decisions are based on thoughtful consideration of both known and unknowable elements.
On the other hand, a mediator will likely feel less comfortable if parties enter into substantive agreements without first having and considering "knowable" information. For example, a party who agrees to waive his/her interest in compensation for future medical bills without having any knowledge about what the relevant future medical bills might be could leave a mediator feeling less than comfortable about the agreement. Or a party who agrees to waive his/her interest in a pension plan without any knowledge of the value of that pension could leave the mediator feeling less than comfortable about the agreement.
Mediators have helpful intervention techniques to use when confronted with parties who appear to be making substantive agreements that are not well informed in the mediator’s view.
In Mediation you are in control and you may resolve the issues of your divorce with dignity and respect.
If you have questions concerning mediation of lowering your child support please call my office for an appointment. 235-1970.
Remember the Flint Mayorial Debat on 4/30/09 6:30 at UAW Local 651 , 3518 Robert T Longway. Sponsored by the Genesee County Democratic Party. You are invited.
Child support may be awarded pursuant to several Michigan statutes, including the Divorce Act, the Paternity Act (when the child’s parents are not married to each other and the paternity of the child is at issue), and the Family Support Act (FSA) (when the parents are married to each other but have not filed for divorce, or the parents are not married to each other but paternity is acknowledged). These acts are under the exclusive jurisdiction of the family division of the circuit court and are enforceable under the Support and Parenting Time Enforcement Act (SPTEA).
A child has an inherent right to the support of his or her natural or adoptive parents. If there is no biological or adoptive relationship giving rise to a support obligation, a child is usually not entitled to support. However, courts have imposed support obligations on a nonparent based on the doctrines of equitable estoppel and equitable parenthood where the nonparent represents himself or herself to be the parent of the child for many years even though the person knew he or she was not the biological parent.
All child support calculations, including for interim orders and requests for modification, must begin with application of the Michigan Child Support Formula. The Michigan formula is based on the needs of the child and the actual resources of each parent. The court must order support in an amount determined by applying the child support formula or may enter a support order that deviates from the formula if application of the formula would be unjust or inappropriate. Parents may not bargain away a child’s right to adequate support, and the parties may not usurp the court’s statutory authority by agreeing to limit the amount of support. Provisions that attempt to put a ceiling on the support available in the future are unenforceable.
MEDIATION
If you and your spouse when considering divorce differ only on a few issues I suggest you use the Mediation Process.
One fundamental premise of the mediation process is self-determination. When parties have complete and thorough information and understanding about the substantive matters of their dispute coupled with a complete and thorough understanding of the risks or unknowns involved with their dispute, they are able to made substantive decisions that consider all of that information. A mediator feels confidence in the substantive decisions of the parties, when he/she recognizes the decisions are based on thoughtful consideration of both known and unknowable elements.
On the other hand, a mediator will likely feel less comfortable if parties enter into substantive agreements without first having and considering "knowable" information. For example, a party who agrees to waive his/her interest in compensation for future medical bills without having any knowledge about what the relevant future medical bills might be could leave a mediator feeling less than comfortable about the agreement. Or a party who agrees to waive his/her interest in a pension plan without any knowledge of the value of that pension could leave the mediator feeling less than comfortable about the agreement.
Mediators have helpful intervention techniques to use when confronted with parties who appear to be making substantive agreements that are not well informed in the mediator’s view.
In Mediation you are in control and you may resolve the issues of your divorce with dignity and respect.
If you have questions concerning mediation of lowering your child support please call my office for an appointment. 235-1970.
Remember the Flint Mayorial Debat on 4/30/09 6:30 at UAW Local 651 , 3518 Robert T Longway. Sponsored by the Genesee County Democratic Party. You are invited.
Saturday, April 04, 2009
Appellate court says Van Buren judge did not get the basics right!
THE JUDGE JUST CANNOT SAY MY REFEREE DID A GOOD JOB, THEN CHANGE CUSTODY!
Necessary optimization. Flint Divorce Lawyer Terry Bankert today reviews an order to change child custody. Terry Bankert Flint child custody attorney observes as does the Court of Appeals that judges cannot blindly accept the finding of a referee, especialy when custody of a child is changed. For more Flint Family Law attorney articles read the articles posted on the website of Flint Divorce attorney Terry Bankert.
Today’s , 4/4/09,Issues Released 3/26/09 Unpublished:
1.Custody; Fletcher v. Fletcher; Powery v. Wells; Order modifying parenting time; Whether the trial court properly affirmed the referee's decision to modify the established custodial environment based on a preponderance of the evidence; Vodvarka v. Grasmeyer; Terry v. Affum (On Remand);
2. The clear and convincing evidence standard; MCL 722.27(1)(c);
3.Consideration of the best interest factors required by MCL 722.23; Rivette v. Rose-Molina;
4.No contact order between the child and the defendant-mother's current husband
[This opinion has been modified for media presentation.Consult an attorney before you rely on its content.-Terry Bankert]
ejournal summary
The court reversed the trial court's order modifying parenting time and remanded the case because it was not clear whether the referee applied the correct burden of proof (clear and convincing evidence), the failure to definitively use the correct burden of proof constitutes clear legal error, and the trial court erred in failing to consider the best interest factors as required by MCL 722.23.
THE LOWER TRIAL COURT DID WHAT?
The trial court modified parenting time from week on/week off to the defendant-mother having custody every other weekend and entered a no contact order between her current husband and the child.
DAD SAYS I SHOWED CHANGE IN CIRCUMSTANCES!DID THE REFEREE USE THE RIGHT LAW?
While the plaintiff-father established by a preponderance of the evidence there had been a change in circumstances warranting modification of parenting time, it was not clear the referee or the trial court applied the correct burden of proof in determining whether to modify the existing custodial environment.
HIGH COURT TELLS THE JUDGE AND REFEREE TO DO IT RIGHT.
On remand, the referee and the trial court must review the record and determine if plaintiff proved modification of the custody order was in the child's best interest by clear and convincing evidence.
A BEST INTEREST ANALYSIS IN FAMILY LAW IS AS FUNDAMENTAL TO CHANGES IN CUSTODY AS AIR IS TO BREATHING.
Further, neither the referee nor the trial court referenced the statutory best interest factors in their orders. The referee recounted the findings of fact, and both the referee and the trial court summarily stated the custody modification was in the child's best interest because it was neither reasonable to expect, nor possible to ensure compliance, with defendant staying away from her husband every other week.
REFERRING 101 FAILED!
Because there was no reference to the best interest factors either by the referee in his recommendations and order or by the trial court in its order, a remand for findings on the best interest factors was required.
THE TRIAL COURT JUDGE SHOULD HAVE KNOWN BETTER
"A mere statement by the trial court that the referee's findings were in the best interests of the child is not a sufficient review of the best interest factors." Reversed and remanded.
–
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
e-Journal Number: 42269,CHAD S. MAXAM, Plaintiff-Appellee,
UNPUBLISHED,March 26, 2009,v No. 280827,Van Buren Circuit Court
CRYSTAL A. NIEMI, f/k/a CRYSTAL A.SNYDER,
LC No. 02-049876-DC ,Defendant-Appellant., Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.,PER CURIAM.
- snippets of the full case follow, consult an attorney before you rely on this content there have been modifications-
In this child-custody dispute,... We reverse
and remand. This case has been decided without oral argument pursuant to MCR 7.214(E).
THERE WAS ABUSE OF DISCRETION
A custody decision is a discretionary ruling that is reviewed under an abuse of discretion
standard. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
...
Defendant argues the trial court abused its discretion when it affirmed the referee’s
decision to modify the established custodial environment based up a preponderance of the
evidence.
PROPER CAUSE.CHANGE CIRCUMSTANCE, PREPONDERENCE OF EVIDENCE
The trial court may modify or amend a prior parenting time order only for proper cause
shown or because of a change of circumstances. The party seeking the change in parenting time
must prove the change in circumstances by a preponderance of the evidence. Vodvarka v
Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003); Terry v Affum (On Remand), 237
Mich App 522, 534-535; 603 NW2d 788 (1999).
IF CHANGE PROVEN, CUSTODIAL ENVIRONMENT THEN CLEAR AND CONVINCING
If a change of circumstances is proven, the trial court must then determine if there is an established custodial environment. If there is, the party seeking to modify the custody order must demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra at 528; Foskett
v Foskett, 247 Mich App 1, 5-6; 634 NW2d 363 (2001); LaFleche v Ybarra, 242 Mich App 692,
695-696; 619 NW2d 738 (2000).
MOM’S LONG TERM BOYFRIEND IS A SEX OFFENDER
In the instant case, plaintiff established by a preponderance of the evidence that there had
been a change in circumstances warranting modification of parenting time. Vodvarka, supra;
Terry, supra. Plaintiff discovered in April 2006 that defendant’s long-term boyfriend (now
husband) was a registered sex offender. Defendant had knowledge of her husband’s criminal
background for many years but never informed plaintiff of this information.
BUT HE WAS ONLY A MODERATE RISK
Dr. Lemmen, a forensic psychiatrist, testified the husband was at a moderate risk to re-offend. Lemmen stated a CSC sub-specialist would be most qualified to make a risk of recidivism determination.
...
THERE WAS A JOINT CUSTODIAL ENVIRONMENT THE CHANGE IN PARENTING WOULD CHANGE THE CUSTODY
Next, the referee determined, and neither party disputes, there was an established
custodial environment prior to the instant action. Plaintiff’s requested modification from week
on/week off to defendant having custody every other weekend (and no contact between the child and defendant’s husband) would result in a change in the established custodial environment.
Because of this, plaintiff was required to demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra; Foskett, supra;
LaFleche, supra.
JUST WHAT BURDEN DID THE REFEREE USE
It is not clear on the record whether the referee in fact applied the correct burden of proof
(clear and convincing evidence) in the determination of whether to modify the existing custodial
environment. The referee noted the appropriate burden, with case citation, in the initial
recommendation and order. However, he mistakenly stated the "preponderance of the evidence" standard in the second recommendation following remand, and did so without case citation.
JUST WHAT BURDEN DID THE JUDGE USE?
Similarly, the trial court failed to indicate which standard it applied when accepting the referee’s
recommendations. Rather, it just found the referee’s recommendations were appropriate and in
the child’s best interests.
CLEAR ERROR ON THE PART OF JUDGE
The failure to definitively use the correct burden of proof constitutes
clear legal error. Powery, supra.
THEY SENT IT BACK AND TOLD THEM TO DO IT RIGHT
On remand, the referee and trial court must review the record
and determine whether plaintiff proved modification of the custody order was in the child’s best
interest by clear and convincing evidence.
JUST HOW DID A FAMILY COURT JUDGE FORGET ABOUT THE BEST INTERESTS
Furthermore, we also find the trial court erred by failing to consider the best interest
factors required by MCL 722.23. Neither the referee nor the trial court referenced the statutory
best interest factors in their orders. Rather, the referee recounted the findings of fact and the
referee and trial court both summarily stated the custody modification was in the child’s best
interest because it was neither reasonable to expect, nor possible to ensure compliance, with
defendant staying away from her husband every other week.
THEY SENT IT BACK AND TOLD THE JUDGE TO DO IT RIGHT
Because there was no reference on the record by either the referee in his recommendations and order, or by the trial court in its order, to the best interest factors, a remand for such findings is required. Rivette v Rose-Molina, 278 Mich App 327, 329-333; 750 NW2d 603 (2008). A mere statement by the trial court that the referee’s findings were in the best interests of the child is not a sufficient review of the best interest factors.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Michael J. Cavanagh
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
Posted here by Terry Bankert
Necessary optimization. Flint Divorce Lawyer Terry Bankert today reviews an order to change child custody. Terry Bankert Flint child custody attorney observes as does the Court of Appeals that judges cannot blindly accept the finding of a referee, especialy when custody of a child is changed. For more Flint Family Law attorney articles read the articles posted on the website of Flint Divorce attorney Terry Bankert.
Today’s , 4/4/09,Issues Released 3/26/09 Unpublished:
1.Custody; Fletcher v. Fletcher; Powery v. Wells; Order modifying parenting time; Whether the trial court properly affirmed the referee's decision to modify the established custodial environment based on a preponderance of the evidence; Vodvarka v. Grasmeyer; Terry v. Affum (On Remand);
2. The clear and convincing evidence standard; MCL 722.27(1)(c);
3.Consideration of the best interest factors required by MCL 722.23; Rivette v. Rose-Molina;
4.No contact order between the child and the defendant-mother's current husband
[This opinion has been modified for media presentation.Consult an attorney before you rely on its content.-Terry Bankert]
ejournal summary
The court reversed the trial court's order modifying parenting time and remanded the case because it was not clear whether the referee applied the correct burden of proof (clear and convincing evidence), the failure to definitively use the correct burden of proof constitutes clear legal error, and the trial court erred in failing to consider the best interest factors as required by MCL 722.23.
THE LOWER TRIAL COURT DID WHAT?
The trial court modified parenting time from week on/week off to the defendant-mother having custody every other weekend and entered a no contact order between her current husband and the child.
DAD SAYS I SHOWED CHANGE IN CIRCUMSTANCES!DID THE REFEREE USE THE RIGHT LAW?
While the plaintiff-father established by a preponderance of the evidence there had been a change in circumstances warranting modification of parenting time, it was not clear the referee or the trial court applied the correct burden of proof in determining whether to modify the existing custodial environment.
HIGH COURT TELLS THE JUDGE AND REFEREE TO DO IT RIGHT.
On remand, the referee and the trial court must review the record and determine if plaintiff proved modification of the custody order was in the child's best interest by clear and convincing evidence.
A BEST INTEREST ANALYSIS IN FAMILY LAW IS AS FUNDAMENTAL TO CHANGES IN CUSTODY AS AIR IS TO BREATHING.
Further, neither the referee nor the trial court referenced the statutory best interest factors in their orders. The referee recounted the findings of fact, and both the referee and the trial court summarily stated the custody modification was in the child's best interest because it was neither reasonable to expect, nor possible to ensure compliance, with defendant staying away from her husband every other week.
REFERRING 101 FAILED!
Because there was no reference to the best interest factors either by the referee in his recommendations and order or by the trial court in its order, a remand for findings on the best interest factors was required.
THE TRIAL COURT JUDGE SHOULD HAVE KNOWN BETTER
"A mere statement by the trial court that the referee's findings were in the best interests of the child is not a sufficient review of the best interest factors." Reversed and remanded.
–
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
e-Journal Number: 42269,CHAD S. MAXAM, Plaintiff-Appellee,
UNPUBLISHED,March 26, 2009,v No. 280827,Van Buren Circuit Court
CRYSTAL A. NIEMI, f/k/a CRYSTAL A.SNYDER,
LC No. 02-049876-DC ,Defendant-Appellant., Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.,PER CURIAM.
- snippets of the full case follow, consult an attorney before you rely on this content there have been modifications-
In this child-custody dispute,... We reverse
and remand. This case has been decided without oral argument pursuant to MCR 7.214(E).
THERE WAS ABUSE OF DISCRETION
A custody decision is a discretionary ruling that is reviewed under an abuse of discretion
standard. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).
...
Defendant argues the trial court abused its discretion when it affirmed the referee’s
decision to modify the established custodial environment based up a preponderance of the
evidence.
PROPER CAUSE.CHANGE CIRCUMSTANCE, PREPONDERENCE OF EVIDENCE
The trial court may modify or amend a prior parenting time order only for proper cause
shown or because of a change of circumstances. The party seeking the change in parenting time
must prove the change in circumstances by a preponderance of the evidence. Vodvarka v
Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003); Terry v Affum (On Remand), 237
Mich App 522, 534-535; 603 NW2d 788 (1999).
IF CHANGE PROVEN, CUSTODIAL ENVIRONMENT THEN CLEAR AND CONVINCING
If a change of circumstances is proven, the trial court must then determine if there is an established custodial environment. If there is, the party seeking to modify the custody order must demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra at 528; Foskett
v Foskett, 247 Mich App 1, 5-6; 634 NW2d 363 (2001); LaFleche v Ybarra, 242 Mich App 692,
695-696; 619 NW2d 738 (2000).
MOM’S LONG TERM BOYFRIEND IS A SEX OFFENDER
In the instant case, plaintiff established by a preponderance of the evidence that there had
been a change in circumstances warranting modification of parenting time. Vodvarka, supra;
Terry, supra. Plaintiff discovered in April 2006 that defendant’s long-term boyfriend (now
husband) was a registered sex offender. Defendant had knowledge of her husband’s criminal
background for many years but never informed plaintiff of this information.
BUT HE WAS ONLY A MODERATE RISK
Dr. Lemmen, a forensic psychiatrist, testified the husband was at a moderate risk to re-offend. Lemmen stated a CSC sub-specialist would be most qualified to make a risk of recidivism determination.
...
THERE WAS A JOINT CUSTODIAL ENVIRONMENT THE CHANGE IN PARENTING WOULD CHANGE THE CUSTODY
Next, the referee determined, and neither party disputes, there was an established
custodial environment prior to the instant action. Plaintiff’s requested modification from week
on/week off to defendant having custody every other weekend (and no contact between the child and defendant’s husband) would result in a change in the established custodial environment.
Because of this, plaintiff was required to demonstrate the change is in the child’s best interest by
clear and convincing evidence. MCL 722.27(1)(c), MCL 722.23; Powery, supra; Foskett, supra;
LaFleche, supra.
JUST WHAT BURDEN DID THE REFEREE USE
It is not clear on the record whether the referee in fact applied the correct burden of proof
(clear and convincing evidence) in the determination of whether to modify the existing custodial
environment. The referee noted the appropriate burden, with case citation, in the initial
recommendation and order. However, he mistakenly stated the "preponderance of the evidence" standard in the second recommendation following remand, and did so without case citation.
JUST WHAT BURDEN DID THE JUDGE USE?
Similarly, the trial court failed to indicate which standard it applied when accepting the referee’s
recommendations. Rather, it just found the referee’s recommendations were appropriate and in
the child’s best interests.
CLEAR ERROR ON THE PART OF JUDGE
The failure to definitively use the correct burden of proof constitutes
clear legal error. Powery, supra.
THEY SENT IT BACK AND TOLD THEM TO DO IT RIGHT
On remand, the referee and trial court must review the record
and determine whether plaintiff proved modification of the custody order was in the child’s best
interest by clear and convincing evidence.
JUST HOW DID A FAMILY COURT JUDGE FORGET ABOUT THE BEST INTERESTS
Furthermore, we also find the trial court erred by failing to consider the best interest
factors required by MCL 722.23. Neither the referee nor the trial court referenced the statutory
best interest factors in their orders. Rather, the referee recounted the findings of fact and the
referee and trial court both summarily stated the custody modification was in the child’s best
interest because it was neither reasonable to expect, nor possible to ensure compliance, with
defendant staying away from her husband every other week.
THEY SENT IT BACK AND TOLD THE JUDGE TO DO IT RIGHT
Because there was no reference on the record by either the referee in his recommendations and order, or by the trial court in its order, to the best interest factors, a remand for such findings is required. Rivette v Rose-Molina, 278 Mich App 327, 329-333; 750 NW2d 603 (2008). A mere statement by the trial court that the referee’s findings were in the best interests of the child is not a sufficient review of the best interest factors.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Michael J. Cavanagh
/s/ Karen M. Fort Hood
/s/ Alton T. Davis
Posted here by Terry Bankert
Saturday, March 28, 2009
MEDIATION AND COURT ORDERS
GOOD MORNING FLINT! 3/29/09 By Flint Divorce Attorney Terry Bankert , contact at http://FlintDivorce.com/
or http://DivorceLawGuy.com/
Posted first to Blogging for Michigan
http://bloggingformichigan.com/This issue will be discussed by Flint Divorce Lawyer Terry Bankert, on WFLT 1420 AM out of Flint, 9 AM to 9:30. Saturday 3/29/09. The Program "Know the Law" presents family law issues and is a call in program for your question 239-5733 area code 810. You are invited.
WHAT IS MEDIATION?
Here is how one mediator describes the process."Mediation Process: We will start in joint session with everyone present. Each side will provide an overview of the case from their perspective, and I encourage both counsel and their clients to speak at this time, if they so desire. It is generally helpful for the parties to communicate their views and feelings in joint session. Many times participants hear things they had not heard or considered before, and many issues can be resolved with everyone at the table. At some point we will probably break into separate meetings, in which we will further explore settlement possibilities privately. Then we will most likely re-convene to negotiate the final settlement terms, and reduce the agreement to writing."[1]
Another describes it as follows."Mediation is a voluntary non-binding information process in which disputing parties come together in good faith and sit with a mediator to discuss ways of resolving their problems. The participants explore options and share information. When an agreement is reached, it is put in writing and signed by both parties only after they have had the opportunity to review the document with their attorneys. Mediation is confidential and all parties will be asked to sign a confidentiality agreement along with an agreement to mediate."[1]
MEDIATION, WHEN DOES IT BECOME BINDING?
Flint Divorce Attorney Terry Bankert is also a mediator in decisions concerning child support, parenting time and divorce. Mediation is a voluntary process where you control the decision making process. But once you present your mediated decision to a court it will become binding.
In this "hot off the presses" case , Flint Divorce Lawyer Terry Bankert, the Issues are :
1.Denial of the plaintiff-wife's motion to set aside the settlement agreement obtained through mediation; Reno v. Gale; Woodard v. Custer; MCR 2.507(G); Plamondon v. Plamondon; Howard v. Howard; Windham v. Morris;
2.Whether the plaintiff was "tricked into signing the agreement" by her attorney; Whether plaintiff signed the agreement based on her "mistaken" belief she had to accept it to get spousal support; Ford Motor Co. v. Woodhaven; Meyer v. Rosenbaum;
3.Whether the terms of the agreement gave the defendant-husband an "unconscionable advantage"; Jackson v. Wayne Circuit Judge; Brown v. Siang; Clark v. DaimlerChrysler Corp.; MCR 3.216(A) and (H)(7)
The Source is :
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
SANDRA MILLER, Plaintiff-Appellant,UNPUBLISHED,March 24, 2009
v No. 282997,Oakland Circuit Court,JOHN MILLER, LC No. 2007-729752-DM
Defendant-Appellee. Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.
PER CURIAM.e-Journal Number: 42246
[Disclaimer: This document has been alterd for media presentation. Consult with an attorney before you rely on its content.]
A quick Summary:
Since mediation is not binding unless it results in a mediation settlement agreement accepted by both parties, the plaintiff-wife was free to reject the agreement and proceed to trial, and admitted as much under oath on the record, and because she failed to show the settlement agreement was procedurally unconscionable, she did not establish a right to relief on this ground.
The case was referred to nonbinding mediation, following which both parties and their attorneys executed a settlement agreement.
The next day, plaintiff appeared in court and admitted on the record in open court she had read and voluntarily signed the agreement.
Although she claimed on appeal she was "tricked" into signing the agreement by her attorney, she executed the agreement based on her mistaken belief she had to accept it to obtain spousal support, and the terms of the agreement gave the defendant-husband an unconscionable advantage, the court disagreed where she was free to reject the agreement and proceed to trial and did not establish the settlement agreement was procedurally unconscionable. Affirmed.
–
A more complete version of the case with additions follows:
WHEN YOU DO NOT AGREE WITH A JUDGEMENT FIRST MOTION TO SET IT ASIDE THEN TAKE IT UP ON APPEAL
Plaintiff appeals by right the judgment of divorce entered by the circuit court following
the denial of her motion to set aside a settlement agreement. We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
DID THE LOCAL COURT ABUSE ITS DECISION MAKING OR DISCRETION
We review the trial court’s decision whether to set aside a party’s acceptance of a
mediation evaluation for an abuse of discretion. Reno v Gale, 165 Mich App 86, 92; 418 NW2d
434 (1987). "An abuse of discretion occurs when the decision results in an outcome falling
outside the principled range of outcomes." Woodard v Custer, 476 Mich 545, 557; 719 NW2d
842 (2006).
COURTS ARE A DECISION MAKING PROCESS
An agreement between parties to an action or their attorneys, if subsequently denied by
either party, "is not binding unless it was made in open court, or unless evidence of the
agreement is in writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney." MCR 2.507(G).
SOMETHING HAS TO BE WRONG
Generally, a party may obtain relief from a settlement agreement for mutual mistake, fraud, unconscionable advantage, or ignorance of a material term of the settlement agreement. Plamondon v Plamondon, 230 Mich App 54, 56; 583 NW2d 245 (1998); Howard v Howard, 134 Mich App 391, 394, 399-400; 352 NW2d 280 (1984).
Other grounds for relief include unilateral mistake induced by fraud, Windham v Morris, 370 Mich 188, 193; 121 NW2d 479 (1963); innocent misrepresentation, Alibri v Detroit Wayne Co
Stadium Auth, 470 Mich 895; 683 NW2d 147 (2004); lack of capacity to contract, Star Realty,
Inc v Bower, 17 Mich App 248, 250; 169 NW2d 194 (1969); and duress or coercion, Lafayette
Dramatic Productions, Inc v Ferentz, 305 Mich 193, 216-217; 9 NW2d 57 (1943).
NON BINDING MEDIATION MEANS VOLUNTARY
The instant case was referred to nonbinding mediation, following which both parties and
their attorneys executed a settlement agreement. The following day, plaintiff appeared in court
and admitted on the record in open court that she had read and voluntarily signed the agreement.
SHE SAI I WAS TRICKED, BY HER ATTORNEY?
Plaintiff first argues that she was tricked into signing the agreement by her attorney. However,
coercion by one’s own attorney is not a valid basis for setting aside a settlement agreement
"absent a showing that the other party participated in the coercion." Howard, supra at 397.
Plaintiff has neither alleged nor shown that defendant colluded with her attorney to secure her
consent to the settlement agreement.
SHE THOUGHT SHE WAS GOING TO GET SPOUSAL SUPPORT, HE DID NOT.
Plaintiff also contends that she executed the settlement agreement based on her mistaken
belief that she had to accept it to obtain spousal support. A mistake of fact warranting rescission
must be mutual, i.e., shared and relied on by both parties. Ford Motor Co v Woodhaven, 475
Mich 425, 442; 716 NW2d 247 (2006). Plaintiff has neither alleged nor shown that defendant
shared her mistaken belief and a unilateral mistake of fact is not grounds for voiding a contract.
Meyer v Rosenbaum, 71 Mich App 388, 394; 248 NW2d 558 (1976).
SHE SAYS HE HAD TOO GREAT OF AN ADVANTAGE
Plaintiff lastly contends that the agreement should be set aside because the terms gave
defendant an unconscionable advantage. The unconscionable advantage that warrants relief from
a contract is "unconscionable advantage taken by one party over the other." Jackson v Wayne
Circuit Judge, 341 Mich 55, 60; 67 NW2d 471 (1954).
MUTUAL LAWYERS SHOULD HAVE LEVELED THE PLAYING FIELD
Given that plaintiff was represented by counsel at mediation and has not alleged that defendant took advantage of her during settlement negotiations, unconscionable advantage is not a basis for relief.
Rather, plaintiff appears to contend that various terms of the settlement were unconscionable. A contract can be found to be invalid if it is one of adhesion, as where its terms are oppressive or unconscionable. Brown v Siang, 107 Mich App 91, 106-107; 309 NW2d 575 (1981).
In order for a contract or contract provision to be considered
unconscionable, both procedural and substantive unconscionability must be
present.
PROCEDURAL UNCONSCIONABILITY
Procedural unconscionability exists where the weaker party had no
realistic alternative to acceptance of the term. If, under a fair appraisal of the
circumstances, the weaker party was free to accept or reject the term, there was no
procedural unconscionability.
SUBSTANTIVE UNCONSCIONABILITY
Substantive unconscionability exists where the challenged term is not substantively reasonable.
However, a contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other.
IT MUST SHOCK THE CONSCIENCE
Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to
shock the conscience. [Clark v DaimlerChrysler Corp, 268 Mich App 138, 143-
144; 706 NW2d 471 (2005) (citations omitted).]
The case was referred to mediation, but mediation is not binding unless it results in a
settlement agreement accepted by both parties. MCR 3.216(A)(2) and (H)(7).
WHAT DO OTHERS SAY ABOUT UNCONSCIONABILITY?
The term unconscionability is not defined in the UCC. Comment 1 to UCC 2-302 provides the following insight:
The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract … . The principle is one of the prevention of oppression and unfair surprise … and not of disturbance of allocation of risks because of superior bargaining power.[2]
Courts have attempted to identify factors and otherwise give meaning to the term unconscionability. For example, in John Deere Leasing Co v Blubaugh, 636 F Supp 1569 (D Kan 1986), the court offered a definition of unconscionability that involved ten elements. [2]
"(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position … (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to the buyer of consumer goods … (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect … (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract … (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate … and (10) inequality of bargaining or economic power."[2]
Id. at 1572–1573 (quoting Wille v Southwestern Bell Tel Co, 219 Kan 755, 758–759, 549 P2d 903 (1976)) (cites and emphasis omitted); see also Pride v Ford Motor Co, 341 F Supp 2d 617, 622 (ND Miss 2004) (" ‘an unconscionable contract is one such as no man in his senses and not under a delusion would make on the one hand, and no honest and fair man would accept on the other’ "; quoting Entergy Mississippi, Inc v Burdette Gin Co, 726 So 2d 1202, 1207 (Miss 1998));[2]
b. Procedural Unconscionability
§3.22 What's New in this Section Procedural unconscionability has been equated with unfair surprise as that term is used in comment 1 to UCC 2-302. Unfair surprise typically involves one of the following: (1) assent obtained by one party’s ignorance or carelessness, which is known to the other party; (2) assent obtained by the signing of forms that are difficult to read or deceptively arranged; or (3) an attempt to contract out of the contract’s dominant purpose. William B. Davenport, Unconscionability and the Uniform Commercial Code, 22 U Miami L Rev 121, 138 (1967). A lack of meaningful choice has become synonymous with procedural unconscionability. 2 William D. Hawkland, Uniform Commercial Code Series §2-302:03 (1992 & Supps).
The indicators of procedural unconscionability generally involve either a lack of knowledge or a lack of voluntariness. A lack of knowledge is demonstrated by a party’s relative unsophistication or an absence of an opportunity to study a contract term so that the term is not understood. An absence of voluntariness is illustrated by typical adhesion contracts, in which a substantial imbalance of bargaining power and an absence of meaningful choice exists. 3 Bender’s Uniform Commercial Code Service: Sales and Bulk Transfers under the Uniform Commercial Code §4.08[2] (Richard W. Duesenberg & Lawrence P. King 1997). .[2]
Procedural unconscionability is evidenced by factors bearing on what may be called "the ‘real and voluntary meeting of the minds’ of the contracting parties: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations to the printed terms were possible, whether there were alternative sources of supply for the goods." Johnson v Mobil Oil Corp, 415 F Supp 264, 268 (ED Mich 1976); see also Andersons, Inc v Horton Farms, Inc, 166 F3d 308 (6th Cir 1998); Jenkins v First American Cash Advance of Georgia, LLC, 400 F3d 868 (11th Cir 2005). In Pichey v Ameritech Interactive Media Servs, 421 F Supp 2d 1038 (WD Mich 2006), the court ruled that plaintiffs did not show that defendants had the sort of monopolistic power associated with procedural unconscionability.[2]
In Ozormoor v T-Mobile USA, Inc, No 08-11717, 2008 US Dist LEXIS 58725 (ED Mich June 19, 2008), the court found that cost-splitting requirements relating to arbitration were procedurally unreasonable because there was no reasonable alternative, but ultimately ruled that the suspect provisions could be severed from the rest of the arbitration provisions.[2]
c. Substantive Unconscionability
What's New in this Section Substantive unconscionability applies to transactions referenced in UCC 2-302 comment 1 as "one-sided" or "oppressive." Substantive unconscionability therefore focuses on the one-sided nature of a contract or a contract term. It may be present when one party is deprived of most of the agreement’s benefits or is left without a remedy for the other party’s breach. Procedural unconscionability concerns the contract formation process, while substantive unconscionability looks to the agreement’s content. 3 Bender’s Uniform Commercial Code Service: Sales and Bulk Transfers under the Uniform Commercial Code §4.08[2] (Richard W. Duesenberg & Lawrence P. King 1997).[2]
The majority of substantive unconscionability cases fall into two categories. The first category is excessive price cases. A number of courts have held contracts to be unconscionable solely on account of excessively high prices. See Shurgard Storage Ctrs v Lipton–U City, LLC, 394 F3d 1041 (2004) (price term in lease agreement’s purchase option was unconscionable as written because it would allow lessee to purchase property for less than half of its value), later proceeding, 454 F3d 934 (8th Cir 2006); Sitogum Holdings v Ropes, 352 NJ Super 555, 800 A2d 915 (2002) (great disparity between $800,000 at which plaintiff had gained right to purchase property and later appraisal and ultimate sale of property to others for nearly twice that amount demonstrated substantive unconscionability of option contract).[2]
The second category of substantive unconscionability cases involves specific clauses in contracts. The more common examples include: [2]
disclaimers of remedies and warranties, Martin v Joseph Harris Co, 767 F2d 296 (6th Cir 1985) (disclaimer of warranty and limitation of remedy clause held unconscionable); Mallory v Conida Warehouses, Inc, 134 Mich App 28, 350 NW2d 825 (1984) (limiting remedy to seed’s purchase price found unconscionable);[2]
exclusion of consequential damages, World Enters, Inc v Midcoast Aviation Servs, Inc, 713 SW2d 606 (Mo App 1986) (where both parties to repair contract were commercial entities that had previously contracted with each other, limitation of liability for incidental and consequential damages was not hidden in fine print, and its terms were neither unusual nor harsh, neither procedural nor substantive unconscionability resulted); In re Feder Lithographic Servs, Inc, 40 BR 486 (Bankr ED Mich 1984) (absent factors that make exclusion of consequential damages unconscionable when contract was made or in its performance, buyer’s recovery for breach of warranty is limited to damages flowing from that breach);[2]
termination clauses, Gianni Sport, Ltd v Gantos, Inc, 151 Mich App 598, 391 NW2d 760 (1986) (clause allowing retailer to terminate clothing orders at any time where clothing was made especially for retailer was unconscionable); Walton v Hoover, Bax & Slovacek, LLP, 149 SW3d 834 (Tex App 2004) (termination clause in attorney fee agreement was unconscionable where it provided that fee: (1) was paid to law firm that was discharged over year and a half before settlement of case, (2) equaled 63 percent–100 percent of former client’s recovery, (3) was not tied to work performed or risk incurred by firm, (4) arose from agreement that did not clearly and accurately explain how fee was to be calculated, (5) allowed discharged attorneys unfettered discretion in determining value of their fee, and (6) was derived in part from settlement offer rejected by client), aff’d in part and rev’d in part on other grounds, 206 SW3d 557 (2006);[2]
default provisions, John Deere Leasing Co v Blubaugh, 636 F Supp 1569 (D Kan 1986) (where default provision was written on back of equipment lease in fine, light print and constituted unduly harsh remedy, provision was unconscionable);[2]
indemnification provisions, Maxon Corp v Tyler Pipe Indus, Inc, 497 NE2d 570 (Ind App 1986) (imposition of broad indemnification clause, placed in relative obscurity on back of invoice at end of long passage, without express consent of proposed indemnitor, was found unconscionable);[2]
contractual statutes of limitations, Clark v DaimlerChrysler Corp, 268 Mich App 138, 706 NW2d 471 (2005); Thurman v DaimlerChrysler, Inc, 397 F3d 352 (6th Cir 2004) (limitation of six months for bringing employment action upheld in both cases);[2]
arbitration clauses, Al-Safin v Circuit City Stores, Inc, 394 F3d 1254 (9th Cir 2005) (arbitration clauses regarding coverage of claims, remedies, arbitration fees, cost-splitting, statute of limitations, class actions, and modifications rendered arbitration agreement excessively one-sided and unconscionable); and [2]
limitation of liability, Pichey v Ameritech Interactive Media Servs, 421 F Supp 2d 1038 (WD Mich 2006) (liquidated damage provision did not shock conscience).[2]
SHE COULD HAVE REJECTED IT
Plaintiff was free to reject the settlement and proceed to trial on the scheduled trial date and admitted as much under oath on the record.
SHE LOSES
Because she has not shown that the settlement agreement was
procedurally unconscionable, she has not established a right to relief on this ground.
Posted Here by Flint Divorce Lawyer Terry Bankert 3/29/09 You are invited to continue this discussion on my Face Book Page. http://www.facebook.com/people/Terry-Bankert/645845362
other sources
[1]
Marketing Track: Educating Lawyers and Clients About the Mediation Process - What Every Litigant and Advocate Needs to Know About YOUR Process By Robert E. Lee Wright, Presented at
7th Annual Advanced Negotiation & Dispute Resolution InstituteThursday, March 13, 2008
or http://DivorceLawGuy.com/
Posted first to Blogging for Michigan
http://bloggingformichigan.com/This issue will be discussed by Flint Divorce Lawyer Terry Bankert, on WFLT 1420 AM out of Flint, 9 AM to 9:30. Saturday 3/29/09. The Program "Know the Law" presents family law issues and is a call in program for your question 239-5733 area code 810. You are invited.
WHAT IS MEDIATION?
Here is how one mediator describes the process."Mediation Process: We will start in joint session with everyone present. Each side will provide an overview of the case from their perspective, and I encourage both counsel and their clients to speak at this time, if they so desire. It is generally helpful for the parties to communicate their views and feelings in joint session. Many times participants hear things they had not heard or considered before, and many issues can be resolved with everyone at the table. At some point we will probably break into separate meetings, in which we will further explore settlement possibilities privately. Then we will most likely re-convene to negotiate the final settlement terms, and reduce the agreement to writing."[1]
Another describes it as follows."Mediation is a voluntary non-binding information process in which disputing parties come together in good faith and sit with a mediator to discuss ways of resolving their problems. The participants explore options and share information. When an agreement is reached, it is put in writing and signed by both parties only after they have had the opportunity to review the document with their attorneys. Mediation is confidential and all parties will be asked to sign a confidentiality agreement along with an agreement to mediate."[1]
MEDIATION, WHEN DOES IT BECOME BINDING?
Flint Divorce Attorney Terry Bankert is also a mediator in decisions concerning child support, parenting time and divorce. Mediation is a voluntary process where you control the decision making process. But once you present your mediated decision to a court it will become binding.
In this "hot off the presses" case , Flint Divorce Lawyer Terry Bankert, the Issues are :
1.Denial of the plaintiff-wife's motion to set aside the settlement agreement obtained through mediation; Reno v. Gale; Woodard v. Custer; MCR 2.507(G); Plamondon v. Plamondon; Howard v. Howard; Windham v. Morris;
2.Whether the plaintiff was "tricked into signing the agreement" by her attorney; Whether plaintiff signed the agreement based on her "mistaken" belief she had to accept it to get spousal support; Ford Motor Co. v. Woodhaven; Meyer v. Rosenbaum;
3.Whether the terms of the agreement gave the defendant-husband an "unconscionable advantage"; Jackson v. Wayne Circuit Judge; Brown v. Siang; Clark v. DaimlerChrysler Corp.; MCR 3.216(A) and (H)(7)
The Source is :
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
SANDRA MILLER, Plaintiff-Appellant,UNPUBLISHED,March 24, 2009
v No. 282997,Oakland Circuit Court,JOHN MILLER, LC No. 2007-729752-DM
Defendant-Appellee. Before: Cavanagh, P.J., and Fort Hood and Davis, JJ.
PER CURIAM.e-Journal Number: 42246
[Disclaimer: This document has been alterd for media presentation. Consult with an attorney before you rely on its content.]
A quick Summary:
Since mediation is not binding unless it results in a mediation settlement agreement accepted by both parties, the plaintiff-wife was free to reject the agreement and proceed to trial, and admitted as much under oath on the record, and because she failed to show the settlement agreement was procedurally unconscionable, she did not establish a right to relief on this ground.
The case was referred to nonbinding mediation, following which both parties and their attorneys executed a settlement agreement.
The next day, plaintiff appeared in court and admitted on the record in open court she had read and voluntarily signed the agreement.
Although she claimed on appeal she was "tricked" into signing the agreement by her attorney, she executed the agreement based on her mistaken belief she had to accept it to obtain spousal support, and the terms of the agreement gave the defendant-husband an unconscionable advantage, the court disagreed where she was free to reject the agreement and proceed to trial and did not establish the settlement agreement was procedurally unconscionable. Affirmed.
–
A more complete version of the case with additions follows:
WHEN YOU DO NOT AGREE WITH A JUDGEMENT FIRST MOTION TO SET IT ASIDE THEN TAKE IT UP ON APPEAL
Plaintiff appeals by right the judgment of divorce entered by the circuit court following
the denial of her motion to set aside a settlement agreement. We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
DID THE LOCAL COURT ABUSE ITS DECISION MAKING OR DISCRETION
We review the trial court’s decision whether to set aside a party’s acceptance of a
mediation evaluation for an abuse of discretion. Reno v Gale, 165 Mich App 86, 92; 418 NW2d
434 (1987). "An abuse of discretion occurs when the decision results in an outcome falling
outside the principled range of outcomes." Woodard v Custer, 476 Mich 545, 557; 719 NW2d
842 (2006).
COURTS ARE A DECISION MAKING PROCESS
An agreement between parties to an action or their attorneys, if subsequently denied by
either party, "is not binding unless it was made in open court, or unless evidence of the
agreement is in writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney." MCR 2.507(G).
SOMETHING HAS TO BE WRONG
Generally, a party may obtain relief from a settlement agreement for mutual mistake, fraud, unconscionable advantage, or ignorance of a material term of the settlement agreement. Plamondon v Plamondon, 230 Mich App 54, 56; 583 NW2d 245 (1998); Howard v Howard, 134 Mich App 391, 394, 399-400; 352 NW2d 280 (1984).
Other grounds for relief include unilateral mistake induced by fraud, Windham v Morris, 370 Mich 188, 193; 121 NW2d 479 (1963); innocent misrepresentation, Alibri v Detroit Wayne Co
Stadium Auth, 470 Mich 895; 683 NW2d 147 (2004); lack of capacity to contract, Star Realty,
Inc v Bower, 17 Mich App 248, 250; 169 NW2d 194 (1969); and duress or coercion, Lafayette
Dramatic Productions, Inc v Ferentz, 305 Mich 193, 216-217; 9 NW2d 57 (1943).
NON BINDING MEDIATION MEANS VOLUNTARY
The instant case was referred to nonbinding mediation, following which both parties and
their attorneys executed a settlement agreement. The following day, plaintiff appeared in court
and admitted on the record in open court that she had read and voluntarily signed the agreement.
SHE SAI I WAS TRICKED, BY HER ATTORNEY?
Plaintiff first argues that she was tricked into signing the agreement by her attorney. However,
coercion by one’s own attorney is not a valid basis for setting aside a settlement agreement
"absent a showing that the other party participated in the coercion." Howard, supra at 397.
Plaintiff has neither alleged nor shown that defendant colluded with her attorney to secure her
consent to the settlement agreement.
SHE THOUGHT SHE WAS GOING TO GET SPOUSAL SUPPORT, HE DID NOT.
Plaintiff also contends that she executed the settlement agreement based on her mistaken
belief that she had to accept it to obtain spousal support. A mistake of fact warranting rescission
must be mutual, i.e., shared and relied on by both parties. Ford Motor Co v Woodhaven, 475
Mich 425, 442; 716 NW2d 247 (2006). Plaintiff has neither alleged nor shown that defendant
shared her mistaken belief and a unilateral mistake of fact is not grounds for voiding a contract.
Meyer v Rosenbaum, 71 Mich App 388, 394; 248 NW2d 558 (1976).
SHE SAYS HE HAD TOO GREAT OF AN ADVANTAGE
Plaintiff lastly contends that the agreement should be set aside because the terms gave
defendant an unconscionable advantage. The unconscionable advantage that warrants relief from
a contract is "unconscionable advantage taken by one party over the other." Jackson v Wayne
Circuit Judge, 341 Mich 55, 60; 67 NW2d 471 (1954).
MUTUAL LAWYERS SHOULD HAVE LEVELED THE PLAYING FIELD
Given that plaintiff was represented by counsel at mediation and has not alleged that defendant took advantage of her during settlement negotiations, unconscionable advantage is not a basis for relief.
Rather, plaintiff appears to contend that various terms of the settlement were unconscionable. A contract can be found to be invalid if it is one of adhesion, as where its terms are oppressive or unconscionable. Brown v Siang, 107 Mich App 91, 106-107; 309 NW2d 575 (1981).
In order for a contract or contract provision to be considered
unconscionable, both procedural and substantive unconscionability must be
present.
PROCEDURAL UNCONSCIONABILITY
Procedural unconscionability exists where the weaker party had no
realistic alternative to acceptance of the term. If, under a fair appraisal of the
circumstances, the weaker party was free to accept or reject the term, there was no
procedural unconscionability.
SUBSTANTIVE UNCONSCIONABILITY
Substantive unconscionability exists where the challenged term is not substantively reasonable.
However, a contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other.
IT MUST SHOCK THE CONSCIENCE
Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to
shock the conscience. [Clark v DaimlerChrysler Corp, 268 Mich App 138, 143-
144; 706 NW2d 471 (2005) (citations omitted).]
The case was referred to mediation, but mediation is not binding unless it results in a
settlement agreement accepted by both parties. MCR 3.216(A)(2) and (H)(7).
WHAT DO OTHERS SAY ABOUT UNCONSCIONABILITY?
The term unconscionability is not defined in the UCC. Comment 1 to UCC 2-302 provides the following insight:
The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract … . The principle is one of the prevention of oppression and unfair surprise … and not of disturbance of allocation of risks because of superior bargaining power.[2]
Courts have attempted to identify factors and otherwise give meaning to the term unconscionability. For example, in John Deere Leasing Co v Blubaugh, 636 F Supp 1569 (D Kan 1986), the court offered a definition of unconscionability that involved ten elements. [2]
"(1) The use of printed form or boilerplate contracts drawn skillfully by the party in the strongest economic position, which establish industry-wide standards offered on a take it or leave it basis to the party in a weaker economic position … (2) a significant cost-price disparity or excessive price; (3) a denial of basic rights and remedies to the buyer of consumer goods … (4) the inclusion of penalty clauses; (5) the circumstances surrounding the execution of the contract, including its commercial setting, its purpose and actual effect … (6) the hiding of clauses which are disadvantageous to one party in a mass of fine print trivia or in places which are inconspicuous to the party signing the contract … (7) phrasing clauses in language that is incomprehensible to a layman or that divert his attention from the problems raised by them or the rights given up through them; (8) an overall imbalance in the obligations and rights imposed by the bargain; (9) exploitation of the underprivileged, unsophisticated, uneducated and the illiterate … and (10) inequality of bargaining or economic power."[2]
Id. at 1572–1573 (quoting Wille v Southwestern Bell Tel Co, 219 Kan 755, 758–759, 549 P2d 903 (1976)) (cites and emphasis omitted); see also Pride v Ford Motor Co, 341 F Supp 2d 617, 622 (ND Miss 2004) (" ‘an unconscionable contract is one such as no man in his senses and not under a delusion would make on the one hand, and no honest and fair man would accept on the other’ "; quoting Entergy Mississippi, Inc v Burdette Gin Co, 726 So 2d 1202, 1207 (Miss 1998));[2]
b. Procedural Unconscionability
§3.22 What's New in this Section Procedural unconscionability has been equated with unfair surprise as that term is used in comment 1 to UCC 2-302. Unfair surprise typically involves one of the following: (1) assent obtained by one party’s ignorance or carelessness, which is known to the other party; (2) assent obtained by the signing of forms that are difficult to read or deceptively arranged; or (3) an attempt to contract out of the contract’s dominant purpose. William B. Davenport, Unconscionability and the Uniform Commercial Code, 22 U Miami L Rev 121, 138 (1967). A lack of meaningful choice has become synonymous with procedural unconscionability. 2 William D. Hawkland, Uniform Commercial Code Series §2-302:03 (1992 & Supps).
The indicators of procedural unconscionability generally involve either a lack of knowledge or a lack of voluntariness. A lack of knowledge is demonstrated by a party’s relative unsophistication or an absence of an opportunity to study a contract term so that the term is not understood. An absence of voluntariness is illustrated by typical adhesion contracts, in which a substantial imbalance of bargaining power and an absence of meaningful choice exists. 3 Bender’s Uniform Commercial Code Service: Sales and Bulk Transfers under the Uniform Commercial Code §4.08[2] (Richard W. Duesenberg & Lawrence P. King 1997). .[2]
Procedural unconscionability is evidenced by factors bearing on what may be called "the ‘real and voluntary meeting of the minds’ of the contracting parties: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations to the printed terms were possible, whether there were alternative sources of supply for the goods." Johnson v Mobil Oil Corp, 415 F Supp 264, 268 (ED Mich 1976); see also Andersons, Inc v Horton Farms, Inc, 166 F3d 308 (6th Cir 1998); Jenkins v First American Cash Advance of Georgia, LLC, 400 F3d 868 (11th Cir 2005). In Pichey v Ameritech Interactive Media Servs, 421 F Supp 2d 1038 (WD Mich 2006), the court ruled that plaintiffs did not show that defendants had the sort of monopolistic power associated with procedural unconscionability.[2]
In Ozormoor v T-Mobile USA, Inc, No 08-11717, 2008 US Dist LEXIS 58725 (ED Mich June 19, 2008), the court found that cost-splitting requirements relating to arbitration were procedurally unreasonable because there was no reasonable alternative, but ultimately ruled that the suspect provisions could be severed from the rest of the arbitration provisions.[2]
c. Substantive Unconscionability
What's New in this Section Substantive unconscionability applies to transactions referenced in UCC 2-302 comment 1 as "one-sided" or "oppressive." Substantive unconscionability therefore focuses on the one-sided nature of a contract or a contract term. It may be present when one party is deprived of most of the agreement’s benefits or is left without a remedy for the other party’s breach. Procedural unconscionability concerns the contract formation process, while substantive unconscionability looks to the agreement’s content. 3 Bender’s Uniform Commercial Code Service: Sales and Bulk Transfers under the Uniform Commercial Code §4.08[2] (Richard W. Duesenberg & Lawrence P. King 1997).[2]
The majority of substantive unconscionability cases fall into two categories. The first category is excessive price cases. A number of courts have held contracts to be unconscionable solely on account of excessively high prices. See Shurgard Storage Ctrs v Lipton–U City, LLC, 394 F3d 1041 (2004) (price term in lease agreement’s purchase option was unconscionable as written because it would allow lessee to purchase property for less than half of its value), later proceeding, 454 F3d 934 (8th Cir 2006); Sitogum Holdings v Ropes, 352 NJ Super 555, 800 A2d 915 (2002) (great disparity between $800,000 at which plaintiff had gained right to purchase property and later appraisal and ultimate sale of property to others for nearly twice that amount demonstrated substantive unconscionability of option contract).[2]
The second category of substantive unconscionability cases involves specific clauses in contracts. The more common examples include: [2]
disclaimers of remedies and warranties, Martin v Joseph Harris Co, 767 F2d 296 (6th Cir 1985) (disclaimer of warranty and limitation of remedy clause held unconscionable); Mallory v Conida Warehouses, Inc, 134 Mich App 28, 350 NW2d 825 (1984) (limiting remedy to seed’s purchase price found unconscionable);[2]
exclusion of consequential damages, World Enters, Inc v Midcoast Aviation Servs, Inc, 713 SW2d 606 (Mo App 1986) (where both parties to repair contract were commercial entities that had previously contracted with each other, limitation of liability for incidental and consequential damages was not hidden in fine print, and its terms were neither unusual nor harsh, neither procedural nor substantive unconscionability resulted); In re Feder Lithographic Servs, Inc, 40 BR 486 (Bankr ED Mich 1984) (absent factors that make exclusion of consequential damages unconscionable when contract was made or in its performance, buyer’s recovery for breach of warranty is limited to damages flowing from that breach);[2]
termination clauses, Gianni Sport, Ltd v Gantos, Inc, 151 Mich App 598, 391 NW2d 760 (1986) (clause allowing retailer to terminate clothing orders at any time where clothing was made especially for retailer was unconscionable); Walton v Hoover, Bax & Slovacek, LLP, 149 SW3d 834 (Tex App 2004) (termination clause in attorney fee agreement was unconscionable where it provided that fee: (1) was paid to law firm that was discharged over year and a half before settlement of case, (2) equaled 63 percent–100 percent of former client’s recovery, (3) was not tied to work performed or risk incurred by firm, (4) arose from agreement that did not clearly and accurately explain how fee was to be calculated, (5) allowed discharged attorneys unfettered discretion in determining value of their fee, and (6) was derived in part from settlement offer rejected by client), aff’d in part and rev’d in part on other grounds, 206 SW3d 557 (2006);[2]
default provisions, John Deere Leasing Co v Blubaugh, 636 F Supp 1569 (D Kan 1986) (where default provision was written on back of equipment lease in fine, light print and constituted unduly harsh remedy, provision was unconscionable);[2]
indemnification provisions, Maxon Corp v Tyler Pipe Indus, Inc, 497 NE2d 570 (Ind App 1986) (imposition of broad indemnification clause, placed in relative obscurity on back of invoice at end of long passage, without express consent of proposed indemnitor, was found unconscionable);[2]
contractual statutes of limitations, Clark v DaimlerChrysler Corp, 268 Mich App 138, 706 NW2d 471 (2005); Thurman v DaimlerChrysler, Inc, 397 F3d 352 (6th Cir 2004) (limitation of six months for bringing employment action upheld in both cases);[2]
arbitration clauses, Al-Safin v Circuit City Stores, Inc, 394 F3d 1254 (9th Cir 2005) (arbitration clauses regarding coverage of claims, remedies, arbitration fees, cost-splitting, statute of limitations, class actions, and modifications rendered arbitration agreement excessively one-sided and unconscionable); and [2]
limitation of liability, Pichey v Ameritech Interactive Media Servs, 421 F Supp 2d 1038 (WD Mich 2006) (liquidated damage provision did not shock conscience).[2]
SHE COULD HAVE REJECTED IT
Plaintiff was free to reject the settlement and proceed to trial on the scheduled trial date and admitted as much under oath on the record.
SHE LOSES
Because she has not shown that the settlement agreement was
procedurally unconscionable, she has not established a right to relief on this ground.
Posted Here by Flint Divorce Lawyer Terry Bankert 3/29/09 You are invited to continue this discussion on my Face Book Page. http://www.facebook.com/people/Terry-Bankert/645845362
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Marketing Track: Educating Lawyers and Clients About the Mediation Process - What Every Litigant and Advocate Needs to Know About YOUR Process By Robert E. Lee Wright, Presented at
7th Annual Advanced Negotiation & Dispute Resolution InstituteThursday, March 13, 2008
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