Sunday, November 14, 2010

Division of Marital Property

Statutory Authority


Did you know Divorce law is based on statutes. There is no authority to divide property, for example, absent an applicable statute. Charlton v Charlton, 397 Mich 84; 243 NW2d 261 (1976). Here we will look at what the statute says.

Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or


The primary statutory authority for a court to award property in a divorce case is MCL 552.19:

When there is an  annulment of a marriage, a divorce  or a judgment of separate maintenance, the court may make a further judgment for restoring to either party the whole, or such parts as it finds  just and reasonable, of the real and personal estate that shall have come to either party by reason of the marriage, or for awarding to either party the value thereof, to be paid by either party in money.
The statute is hard to read and apply  and he courts have defined  the marital estate. The process has been slow and evolving, and even now there is no legal or simple definition of the marital estate.
III. WHAT IS  Marital Property



 Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997), lv den 459 Mich 882; 586 NW2d 746 (1998), is the law in Michigan. The DOCTRINE of Reeves was approved by the Michigan Supreme Court in Dart v Dart, 460 Mich 573, 585 n 6; 597 NW2d 82 (1999).

This case says:
The distribution of property in a divorce is controlled by statute. MCL 552.1 et seq. (subsequent citations omitted). In granting a divorce, the court may divide all property that came “to either party by reason of the marriage….” MCL 552.19 ….Reeves at 493. [Emphasis in original.]


The Reeves  case emphasizes that the assets to be divided in a divorce case are those which occurred during the marriage:

When apportioning marital property, the court must strive for an equitable division of increases in marital assets “that may have occurred between the beginning and the end of the marriage.” Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986). Id at 493. [Emphasis in original.]

YOUR DIVORCE ATTORNEY MUST ARGUE THE SEPARATE AND JOINT PROPERTY
Reeves then repeated the proposition found in Byington v Byington, 224 Mich App 103, 114, n 4; 568 NW2d 141 (1997):
Your divorce Judge has the initial obligation  when dividing property in divorce proceedings to determine marital and separate assets. Id at 493–494.


Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or



Reeves then sets forth the construct for the division of property in a divorce:



Generally, the marital estate is divided between the parties, and each party takes away from the marriage that party’s own separate estate with no invasion by the other party. However, a spouse’s separate estate can be opened for redistribution when one of two statutorily created exceptions is met. MCL 552.23 and 552.401 (additional citations omitted).





Finally, Reeves sets forth the order for the analysis:



After properly recognizing the parties’ separate estates and the marital estate, the court may consider whether invasion of defendant’s estate is necessary. Before the court may invade defendant’s separate estate, it must specifically find that one of the two statutory exceptions exists. Id at 497–498.





Despite the analysis in this critically important case, the questions of what is “property”, and from that, what is “marital property” are still left unanswered. There is no statute, court rule, or case law which expressly defines “marital property”. Ultimately, what is “property” is limited only by the creativity of the matrimonial lawyer, and what is “marital property” is anything which is not “separate property”.



Recently, in Cunningham v Cunningham, ___ Mich App ___, ___ NW2d ___ (Docket No. 285541, decided 7/13/10), the Court of Appeals noted the difficulty in applying Reeves to distinguish between separate and marital property:



The categorization of property as marital or separate, however, is not always easily achieved. While income earned by one spouse during the duration of the marriage is generally presumed to be marital property, Byington [v Byington, 224 Mich App 103 568 NW2d 141 (1997)], 224 Mich App at 112, there are occasions where property earned or acquired during the marriage may be deemed separate property. For example, an inheritance received by one spouse during the marriage and kept separate from marital property is separate property. Dart v Dart, 460 Mich 573, 584–585; 597 NW2d 82 (1999). Similarly, proceeds received by one spouse in a personal injury lawsuit meant to compensate for pain and suffering, as opposed to lost wages, is generally considered separate property. Washington v Washington, 283 Mich App 667, 674; 770 NW2d 908 (2009); Pickering [v Pickering, 268 Mich App 1, 706 NW2d 835 (2005)], 268 Mich App at 10. Moreover, separate assets may lose their character as separate property and transform into marital property if they are commingled with marital assets and “treated by the parties as marital property.” Pickering, 268 Mich App at 12–13, citing Wilson v Wilson, 179 Mich App 519, 521, 524; 446 NW2d 496 (1989). The mere fact that property may be held jointly or individually is not necessarily dispositive of whether the property is classified as separate or marital. See Korth v Korth, 256 Mich App 286, 292; 662 NW2d 111 (2003); Reeves, 226 Mich App at 492, 495–496.





The Cunningham panel held that the husband’s worker’s compensation benefits received during the marriage for an injury prior to the marriage were nonetheless marital property because they represented a replacement of wages that would have been earned during the marriage. The panel noted some confusion as to whether a lump sum award received after years of litigation was a settlement of the pre-marriage claim via redemption (which logically would be the husband’s separate property) or rather was merely retroactive benefits, i.e. replacement wages, for earnings that would have occurred at least partially during the marriage (a portion of which would be marital property).



http://www.attorneybankert.com . Principle Source ICLE 09/16/10
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Friday, November 05, 2010

WHAT IS VALUE IN DIVORCE COURT?

To establish a fact in trial you need facts on the record. Just how do you prove what things are worth.

Flint Divorce Terry Bankert a Genesee Custody Attornery discusses several issues : Here we have a husband party appealing a judgment of divorce;

The husband asks whether the trial court properly valued the equity and mortgage of the marital home, included the defendant-husband's premarital property as marital property, appraised a John Deere loader, and valued plaintiff-wife's defined contribution accounts;

What is a Review for "clear error"; Sparks v. Sparks; Jansen v. Jansen; Failure to cite to specific references to the record; Begin v. Michigan Bell Tel. Co.

If you have a child custody, child support or parenting time issues in Genesee County or Flint Michigan contact Attorney Terry Bankert 235-1970

Reviewed here is a Michigan Court of Appeals Case,

UNPUBLISHED, October 26, 2010, No. 293323, out of Barry Circuit Court

LC No. 08-000595-DO. The Case Name is : Symoens v. Symoens. Itg can be found in the e-Journal Number: 47203. The Judges are Zahra, Talbot, and Meter.

Here the court held, inter alia, that the trial court did not clearly err in selecting one of the four appraisals of the marital home as the appropriate value because the trial court was familiar with the work of that appraiser and found him to be the most credible witness and the trial court's valuation of the marital home was within the range established by the proofs. Thus, there was no clear error.

HUSBAND CHALLENGES THE COURTS VALUATION

The defendant-husband appealed from the judgment of divorce and challenged the trial court's decisions as to the valuation of the equity and mortgage balance of the marital home, the alleged inclusion of his separate, premarital property as marital property, an alleged encumbrance that would reduce the appraisal value of a John Deere loader, and the valuation of the plaintiff-wife's defined contribution accounts.

The valuation of the marital home is a finding of fact. “Where a trial court’s

valuation of a marital asset is within the range established by the proofs, no clear error is

present.” Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).

COURT IGNORED SOME OF HUSBANDS ARGUMENTS

The court concluded his other arguments on appeal were not supported by the facts in the record. Defendant failed to acknowledge that the trial court calculated the home's equity by considering both the first and second mortgages.

HUSBAND LOSES SEPARATE PROPERTY ARGUMENT

As to the alleged "separate property" items, defendant did not identify which items on the personal property list were his separate property. Except for a few items marked as separate property, there was no indication of when the things were bought, and the fact that some items were marked as separate led to the inference that the rest were marital property. Further, the cover letter to the list stated that the appraisal was performed at defendant's request. He could hardly complain that property was erroneously included in the list he submitted for appraisal.

JOHN DEERE TRACTOR

Defendant's $12,000 credit account debt was evidence in the record but there was no mention of it being a lien against or otherwise encumbering the John Deere loader. The evidence in the transcript was plaintiff's testimony that there was no debt on the loader. Defendant did not point to any other proof related to the loader. Also, the trial court did not clearly err in assigning the lower values to the retirement accounts.

TRIAL BRIEF HAD EXHIBITS

Although defendant's trial brief included exhibits showing a higher amount, his own trial exhibits were statements from later dates, closer to trial that showed the accounts had decreased in value since the time the trial brief was filed.

A party must support factual statements with specific references to the record. Begin v Mich Bell Tel Co, 284 Mich App 581, 590; 773 NW2d 271 (2009).

THE COURT CORRECTLY USED THE JUDGEMENT VALUES CLOSEST TO TRIAL DATE.

The trial court correctly used the values closest to the trial date.



Posted here By Flint Divorce Lawyer

Terry Bankert
http://attorneybankert.com/

Friday, September 10, 2010

WIFE GONE 2 YEARS, RETURNS FROM LEBANON GETS CUSTODY OF CHILD, REVIEWED BY FLINT DIVORCE ATTORNEY TERRY BANKERT

MOTHER WINS CUSTODY OF A CHILD.




Flint Divorce attorney presents here several family law and divorce Issues on child custody decisions. here mother returned to Lebanon to pursue her education leaving the child with a non English speaking father who denied her parenting time when she returned. What was he thinking? Was this a culturally driven decision on his part?



1.Whether an established custodial environment (ECE) existed with both parties; Mogle v. Scriver; MCL 722.27(1)(c);

2.Effect of a custody order; Berger v. Berger;

3.The trial court's factual findings on the statutory "best interest" factors (MCL 722.23); Factors (b)-(d), (f), (k), and (j);

4."Hearsay"; Harmless error;

5.Whether there was sufficient evidence of a "change of circumstances" to warrant a change in the prior custody order; Brausch v. Brausch; Vodvarka v. Grasmeyer



This post reviews the decision of a Court: Michigan Court of Appeals (Unpublished 08-12-10)

Case Name: Hammouda v. Mourad

e-Journal Number: 46597

Lower County is Wayne Circuit Court ( Divorce Court ) no. 01-137186-DM

Judge(s): Per Curiam - Wilder, Cavanagh, and Saad



LOWER COURT GOT IT RIGHT



The Wayne County Divorce Court the trial court did not err in ruling that an ECE existed with both parties, its factual findings on the challenged best interest factors were not against the great weight of the evidence, and its ruling that there was a change of circumstances warranting an evidentiary hearing to reconsider the prior custody order was also not against the great weight of the evidence.



DID YOU KNOW!

A trial court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests. Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). A “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.” MCL 722.27(1)(c). Courts should also consider “[t]he age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship[.]” Id.



Thus, the court the Michigan Court of Appeals affirmed the Wayne County Divorce trial court's order granting the plaintiff-mother's motion to change custody of the parties' minor child.



WHO HAD THE CUSTODIAL ENVIRONMENT? DAD SAYS HIM



The defendant-father argued that an ECE existed only with him due to the December 2006 order awarding him physical custody and because the child lived with him from December 2006 until the trial court entered its order changing custody in December 2009.



Defendant was awarded physical custody of the child in December 2006 only because plaintiff intended to live in Lebanon for a period of time to attend school. Plaintiff did not immediately seek to regain custody of the child when she returned from Lebanon because the child appeared to be doing fine and did not complain about living with defendant at that time.



WHAT IS IN THE ORDER DOES NOT CREATE THE CUSTODIAL ENVIRONMENT, ITS WHAT IS HAPPENING WITH THE CHILD THAT CREATS THIS ENVIRONMENT.



However, the court noted that a custody order, in and of itself, does not establish a custodial environment and an ECE may exist absent a custody order.



MOM REALLY HAD CUSTODY.



The record showed that the child looked to plaintiff for guidance and parental comfort.



The child had lived with plaintiff her entire life until plaintiff left the country in December 2006.



Thus, the record showed that plaintiff provided care, guidance, and love for the child over a significant period of time and that their relationship was characterized by permanence, security, and stability.



The court also rejected defendant's challenges to the trial court's findings on best interest factors (b)-(d), (f), (k), and (j), concluding, inter alia, that nothing in the record showed that plaintiff lacked the capacity or disposition to provide the child with clothing, food, shelter, or other material needs and that the evidence clearly showed that defendant was unwilling to encourage and facilitate a close relationship between the child and plaintiff.



THERE HAS TO BE A CHANGE IN CIRCUMSTANCES



The trial court also ruled that three factors constituted a change of circumstances -



(1) plaintiff's return to the U.S.,



(2) defendant's refusal to allow parenting time except on alternate weekends, and



(3) the child's failing grades and the fact that neither defendant nor his current wife was able to help the child with her schoolwork.







MOM’S RETURING TO THE COUNTRY WAS THE CHANGE!



The court concluded that plaintiff's return after a one-year absence and her desire to have a normal mother-daughter relationship with her child was a material change that occurred after entry of the December 2006 custody order …



FATHERS DENIAL TO MOM HER PARENTING TIME COST HIM CUSTODY.

and defendant's refusal to permit plaintiff to exercise parenting time could have significantly affected the child's well being.



UNDER DADS WATCH THE CHILDS GRADES DECLINED.



The child's decline in grades and school attendance was also a material change that occurred since the December 2006 order.



The record shows that, while living with defendant, the child did very poorly in school and received several failing grades. Defendant admitted that neither he nor his current wife, Iman, is able to help the child with her homework because they cannot read English. He also admitted that he hired a tutor to help the child after it was recommended that he do so three weeks before the evidentiary hearing and that, since then, her grades had improved.

Friday, August 06, 2010

IF THERE IS SEXUAL ABUSE CAN YOU CHANGE CUSTODY TO PROTECT THE CHILDREN? NO IN THIS CASE

Friday, August 6, 2010


Mentioned; MEL GIBSON, OKSANA, IONIA DIVORCE CHILD CUSTODY , FLINT DIVORCE LAWYER TERRY BANKERT 235-1970



Child Custody disputes affects our families and the rich and the famous like Mel Gibson and Oksana Grigorieva .



We have heard that Oksana Grigorieva will be Under-oath tomorrow in the Child Custody Case against Mel Gibson.[1] Once a Divorce Court established custody that parens , like in the Ionia case below, can petition the court later for a change in custody.



WHAT CAN YOU DO IF YOUR EX’S NEW LOVER SEXUALLY ABUSES YOUR KIDS AND YOUR TAKEN TO COURT? IONIA FAMILY COURT RULES ...JUST SAY IT WON’T HAPPEN AGAIN.



Here, however, the potentially abusive environment has been altered by plaintiff’s agreement to assure that her former fiancé will not be around the children “in perpetuity.”



Ionia Child Custody Court decision commented on by Flint Divorce Attorney Terry Bankert 810-235-1970. The Ionia County Michigan Child Custody Court Issues discussed are :



I.Child custody;



A.Whether the trial court properly declined to hold a child custody hearing on the defendant-father's motion for a change of custody;



B.Whether there was a "proper cause or a change of circumstances" to change custody;



C:The "great weight of the evidence standard of review"; Corporan v. Henton; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Applicability of In re Rinesmith and In re Brown; Children's Protective Services (CPS)

Court: Michigan Court of Appeals (Unpublished July 27 2010)

Case Name: Filsinger v. Filsinger

No. 295643

Ionia Circuit Court

LC No. 2007-025702-DM

e-Journal Number: 46468

Judge(s): Per Curiam - Hoekstra and Beckering; Concurring in result only - Jansen



NO CHANGE IN CIRCUMSTANCE , NO CHANGE IN CHILD CUSTODY



The Michigan Court of Appeals decided the Ionia Child Custody court's decision to not reopen the custody issue was proper based on the facts of the case where the evidence supported a finding that there was no continuing condition that could have a significant effect on the children. Thus, the trial court did not err in declining to hold a child custody hearing.



The couple had children two boys. Instead of a trial with a judge decison they agreed to the terms in a judgement of divorce.



MOM GOT PHYSICAL CUSTODY OF THE CHILDREN



They were granted joint legal custody of the boys, and the plaintiff-mother was awarded sole physical custody.







WANT TO CHANGE CUSTODY IN YOUR CASE, HERE IS THE FIRST STEP



In a child custody dispute, the trial court may change a previous child custody order “for proper cause shown or because of change of circumstances.” MCL 722.27(1)(c).



The court may not change the custody order—or even hold a child custody hearing—unless the moving party establishes proper cause or change in circumstances. Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003). In deciding whether to hold an evidentiary hearing, the court

must first determine “whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.” MCR 3.210(C)(8); see also Vodvarka, 259 Mich App at 512. Here, there was a contested factual issue, i.e., whether the evidence

demonstrated that the fiancé had abused the children. The trial court determined that the resolution of that issue was not necessary to decide the motion, because the fiancé was out of the children’s lives.





DAD SAYS THINGS HAVE CHANGED , THE NEW BOY FRIEND SEXUALLY ABUSING CHILDREN THE BOYS SHOULD BE WITH HIM



Later, defendant filed a motion for change in custody alleging certain behavior and statements of the boys indicated plaintiff's fiancé had sexually abused them.



SOMETHING AS IMPORTANT AS SEXUAL ABUSE OF CHILDREN GOES TO A REFEREE NOT A JUDGE!



At the referee hearing, defendant testified the older boy told him the fiancé slept in the younger child's bed, and the younger child told him the fiancé had put his finger in the boys' "bottom."



CPS ARRIVES ON THE SCENE



Defendant contacted CPS, who opened an investigation. CPS told defendant to keep the boys pending the investigation and interviewed them. The boys did not disclose any abuse. CPS closed its investigation and told defendant to return the boys to the mother's custody. He was not satisfied with this result and asked CPS what else he could do. CPS recommended a doctor he should contact.



DOCTOR DRAGGED INTO THE CASE



The doctor interviewed the boys and recommended that they be seen by H, a Ph.D.



DAD PLAYS THE PERSONAL PROTECTION ORDER CARD



At the time of the hearing, a PPO was in place prohibiting contact between the fiancé and the boys.



DOC THINKS THERE WAS SEXUAL ABUSE



H testified she believed the fiancé had sexually abused the boys but admitted she did not know what had happened. Plaintiff testified there was no "evidence indicating that something happened," and she opined there were other explanations for why the boys "made statements to that effect."



MOMMY AGEES TO COUNSELING



The mother agreed to counseling for the boys if it was recommended.



REFEREE SAYS THERES ENOUGH HERE, SEXUAL ABUSE AS BASIS TO CHANGE CUSTODY



The hearing referee found proper cause and a change of circumstances to justify revisiting the custody order.



CASE PROCEDURALLY FORCED BACK TO MAKE THE JUDGE DECIDE





NOW THAT MOM IS LOSING SHE ANNOUNCES A BREAKUP WITH THE BOY FRIEND



In the IONIA CHILD CUSTODY court, the mother changed her position and said she would no longer reintroduce contact with the fiancé, she had called off the engagement, and the fiancé would never have contact again with the boys.



COURT SAYS EVEN IF BOY FRIEND SEXUALLY ABUSED THE BOYS UNDER MOTHERS WATCH...HE’S GONE NOW, MOM SAID SO.



The IONIA CHILD CUSTODY court held that even if the fiancé had abused the boys, there was no proper cause or change of circumstances for holding an evidentiary hearing in light of the fact the fiancé was out of the boys' life.



Previously mom had said that she felt that when the PPO expired, she would seek to gradually reintroduce the children’s

time with her fiancé, but that she “would be there at all times.”

She then said “The hearing referee found that proper cause and a change in circumstances existed to justify revisiting the custody order.



Before the trial court, plaintiff changed her position with respect to contact between the fiancé and the boys.



She said that she was no longer planning to reintroduce contact, and had called off the engagement. She agreed that her fiancé would have no contact with the boys “in perpetuity.” The trial court made no finding with respect to whether there had been abuse, but found that, even assuming the fiancé had abused the boys, there was no

proper cause or change in circumstances for holding a custody hearing, in light of the fact that the fiancé was out of the boys’ life.



DAD DISAGREES WITH THIS ONE



Defendant disagreed and argued the mother failed to protect the boys and the trial court erred in finding the problem was fixed.



THE LESSON HERE. WHEN YOU GET IN TROUBLE IN FAMILY COURT JUST SAY I’LL NEVER DO IT AGAIN .



The court found the potentially abusive environment was altered by the mother's agreement to assure her former fiancé would not be around the boys "in perpetuity," the circumstances had evolved, and the extent of effect necessary to breach the statutory barrier against revisiting custody orders was not established.



THE MICHIGAN COURT OF APPEALS AGREED WITH THE IONIA CHILD CUSTODY COURT?

Affirmed.



DAD FAILED IN HIS ATTEMPT TO PROTECT HIS CHILDREN FROM THEIR MOTHERS BAD CHOICES



Presented here by

Terry R. Bankert

http;//attorneybankert.com








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[1]

http://www.buzztab.com/celebrity/oksana-under-oath-child-custody-case/

[TRB]

This case has been altered for the purpose of lay understanding,media presentation and SEO. Don not rely on it without consulting the origional document and consulting counsel. The Cap headlines are the opinion of Terry Bankert

Thursday, July 22, 2010

Washtenaw Divorce Judgement comments Flint Divorce Attorney Terry Bankert 810-235-1970

Flint Divorce Attorney comments on Washtenaw Divorce Court Issues:



Divorce; Motion for relief from provisions of the parties' property settlement agreement; Holmes v. Holmes; Contract interpretation; Klapp v. United Ins. Group Agency, Inc.; Dobbelaere v. Auto-Owners Ins. Co.; Frankenmuth Mut. Ins. Co. v. Masters; Hagen v. Hagen; Effect of a party's choice of labels for the action; Johnston v. City of Livonia;



Whether the Washtenaw Divorce court should have evaluated the property's current market value before ordering the transfer of the plaintiff-husband's interest; "Estimate" defined;



Whether the Washtenaw Divorce court's judgment amounted to an improper modification of or substitution to the settlement agreement; Request to appoint a receiver; Reed v. Reed; MCL 600.2926; Petitpren v. Taylor Sch. Dist.;



Attorney's fees; Unthank v. Wolfe



Court: Michigan Court of Appeals (Unpublished 07/06/10)

Case Name: Cook v. Cook

e-Journal Number: 46266

Washtenaw Circuit Court Lc No 05-001920

Judge(s): Per Curiam - Murray, Saad, and M.J. Kelly



PLAIN LANGUAGE

The Washtenaw Divorce Courtcourt correctly applied the plain language of the parties' settlement agreement by awarding in partial satisfaction of the plaintiff-husband's obligation the parcel of real property provided as security in the agreement for the payment of $1,750,000 to the defendant-wife. However, the court agreed with defendant the Washtenaw Divorce Courtcourt erred in not making any valuation of the property's current market value.



A SETTLEMENT AGREEMENT IS A CONTRACT



“A divorce judgment entered upon the settlement of the parties . . . represents a

contract, which, if unambiguous, is to be interpreted as a question of law.” Holmes v Holmes,

281 Mich App 575, 587; 760 NW2d 300 (2008) (quotation marks and citation omitted)



10 INSTALLMENTS

Pursuant to the settlement agreement, which was incorporated into the parties' consent judgment of divorce, plaintiff had to pay defendant $1,750,000 in 10 equal installments of $175,000 with the first payment due a year from the date of entry of the divorce judgment.

SECURITY ON THE DEBT

As security, the agreement required him to maintain a life insurance policy of not less than $1,750,000 designating defendant as the beneficiary until the agreement was satisfied. Also, his interest in a 40-acre parcel of property (with an estimated value of $1,500,000) served as additional security for the debt.

HE CALLED IT RELIEF FROM JUDGEMENT, COURT LOOKED BROADER

Plaintiff filed a motion entitled "relief from impossible property settlement provisions of judgment," asserting it was impossible for him to meet the payment schedule in the settlement agreement because his net worth had gone from $30,000,000 on the date of the divorce judgment to a "negative number." He requested the Washtenaw Divorce Court adjust his payment schedule to $5,000 a month with interest as provided in the agreement and reevaluate his ability to pay in 12 months.



The Washtenaw Divorce Court concluded since execution on the life insurance policy was not an option, plaintiff's inability to pay triggered defendant's security interest in the parcel of real property, rendering plaintiff's outstanding obligation to defendant $29,000 plus interest.

THE APPEAL

On appeal, defendant argued, inter alia, the Washtenaw Divorce court erred in partially granting plaintiff's motion and transferring the parcel to her in lieu of the cash payments required in the agreement. The court disagreed, concluding the agreement clearly contemplated the scenario of plaintiff being unable to meet his payment obligations where it provided 2 forms of security for the $1,750,000 obligation. As the Washtenaw Divorce court observed, the life insurance policy proceeds were unavailable, so the only remaining security was the real property. The Washtenaw Divorce court, after finding plaintiff was unable to make cash payments, applied the unambiguous language of the agreement's security provision. However, the court vacated in part the Washtenaw Divorce court's order and remanded the case for a determination of the actual value of the parcel at the time it was transferred to defendant. Once its value is determined, this actual value should be deducted from the amount plaintiff owed defendant under the divorce judgment.



INTENT OF THE PARTIES



The fundamental goal regarding the construction or interpretation of a contract, including

a settlement agreement, is to honor the parties’ intent by reading the document as a whole and

applying the plain language used in the contract. Dobbelaere v Auto-Owners Ins Co, 275 Mich

App 527, 529; 740 NW2d 503 (2007); Mikonczyk v Detroit Newspapers, Inc, 238 Mich App 347,

349-350; 605 NW2d 360 (1999).



IF THE LANGUAGE IS CLEAR THIS CONTRACT SHOULD NOT BE CHANGED

Where the contractual language is clear and unambiguous,

courts must interpret and enforce the contract as written. Frankenmuth Mut Ins Co v Masters,

460 Mich 105, 111; 595 NW2d 832 (1999). In such instances, despite a court’s equitable

authority to modify a judgment of divorce to reach an equitable result, Hagen v Hagen, 202 Mich

App 254, 258; 508 NW2d 196 (1993), a court may not modify an unambiguous settlement

agreement incorporated into a judgment of divorce to “rebalance the contractual equities” or

because it considers another interpretation more reasonable unless the agreement resulted from

fraud, duress, or mutual mistake, Holmes, 281 Mich App at 594-595.







Affirmed in part, vacated in part, and remanded.



Posted here by

Terry Bankert

http://attorneybankert.com/

Tuesday, July 13, 2010

Child preference in a Child Custody action.

An AVVO question.


In Michigan, what age can child pick what parent they want to live and does a judge listen to a child in a court case

Viewed 9 times. Posted 3 days ago in Family - Dundee, MI

daughter at twelve years old has lived with her dad for five years and would like to live with her mom. is there a certain age at which the daughter can choose who she lives with and how does judge go about this if father lives in colorado and mother lives in michigan. what laws do apply .

ANSWER

The law of the case the case is / was filed in applies. If it is in Michigan here are some thoughts.





BEST INTEREST OF THE CHILD

The Michigan Child Custody Act contains a strong policy statement that “the best interests of the child” must be the court’s controlling guide in custody disputes. MCL 722.25. MCL 722.23 defines the “best interests of the child” as factor (I):





(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.



REASONABLE PREFERENCE



The Child Custody Act lists the “reasonable preference of the child” as one of the factors the court must determine when addressing the best interests of the child. MCL 722.23(i).

IF THE CHILD IS OLD ENOUGH

The court must take the preference into account if it decides that the child is old enough to express a preference. Id.; Flaherty v Smith, 87 Mich App 561, 274 NW2d 72 (1978).

The child’s preference does not have to be accompanied by detailed thought or critical analysis. Pierron v Pierron, No 138824, 2010 Mich LEXIS 884 (May 11, 2010) (trial court could not disregard the children’s preference for attending Howell schools because court concluded that children, having never attended Howell school, presumably lacked any factual basis on which to form reasonable preference). Before the trial court may disregard a child’s preference, it must find that the preference was arbitrary or inherently indefensible. Id.



THE COURT MAY QUESTION IN THE JUDGES OFFICE



The trial court may determine the child’s preference by questioning the child in camera rather than by taking the child’s testimony in court. Impullitti v Impullitti, 163 Mich App 507, 415 NW2d 261 (1987). The court of appeals in Burghdoff v Burghdoff, 66 Mich App 608, 239 NW2d 679 (1976), approved a trial judge’s in camera conference with an eight-year-old boy at which the child stated that he preferred to live with his father.

MANY DO NOT WANT CHILDREN TO TESTIFY IN OPEN COURT

The court held that, as a general rule, such a conference was the best way for a circuit judge to determine the child’s preference while sparing the child from having to testify in favor of one parent in open court under cross-examination. The trial judge had not erred by failing to ascertain on the record that the child had the intelligence and sense of obligation to tell the truth because such a determination, required by MCL 600.2163, applies to testimony about disputed facts but not to a child’s statement of preference. (MCL 600.2163 was repealed by 1998 PA 323, effective August 3, 1998.)



THE JUDGE CAN ASK THE CHILD THEIR PREFERENCE







Based on an amendment to MCR 3.210(C)(5), such in camera interviews are limited to a child’s custodial preference.

Although Molloy firmly established that the subject matter of an in camera interview is strictly limited to determining the child’s preference, neither caselaw nor court rule precludes a trial court from taking testimony in court regarding issues other than the child’s preference. In Surman v Surman, 277 Mich App 287, 745 NW2d 802 (2007), the trial court properly allowed the parties’ child to testify in open court regarding alleged physical abuse by his father. “[A] trial court must take testimony in open court on issues of abuse or mistreatment because to allow courts to discuss such matters during the in camera interview would constitute a due process violation.” Id. at 302.

Friday, July 02, 2010

SPOUSAL SUPPORT EMMET COUNTY DIVORCE comments by Flint Divorce Attorney Terry Bankert 235-1970

Emmet County Divorce commented on by Flint Divorce Attorney Terry Bankert, 810-235-1970. Issues: Spousal support; Woodington v. Shokoohi; Gates v. Gates; Hanaway v. Hanaway; Vanalstine v. Vanalstine; Magee v. Magee


Court: Michigan Court of Appeals (Unpublished 06/22/10),N0.28898, Case Name: Welsh v. Welsh

Emmet Circuit Court N0. 08-001177-DO,e-Journal Number: 46142

Judge(s): Per Curiam - Shapiro and Donofrio; Dissent - Jansen

Summary from de-Journal followed by Case with comments in CAP or [trb ] by Terry Bankert Flint Divorce lawyer , for lay understanding ans SEO.



LOCAL COURT DID IT WRONG!



The MICHIGAN COURT OF APPEALS held the EMMET DIVORCDE trial court's award of spousal support to the defendant-wife of $1,000 a month for three years was unfair, inequitable, and erroneous. Thus, the court remanded for a determination of an increased amount and duration of spousal support.



PRIOR TO DIVORCE HUSBAND AND WIFE HAD AN AGREEMENT



Prior to trial, the parties reached an agreement on all issues except spousal support. As part of their agreement, they stipulated to a division of the marital property with each receiving approximately $207,000 in assets.

AFTER DIVORCE WIFE SAYS SHE WANTS MORE SPOUSAL SUPPORT

On appeal, defendant challenged numerous factual findings by the trial court and contended the amount of spousal support awarded was unfair where she requested permanent spousal support of $3,000 a month.

COURT OF APPEALS AGREES WITH WIFE

The court agreed. In considering the plaintiff-husband's ability to pay alimony, the EMMET COUNTY DIVORCE trial court took into account the husband's duty to repay a loan he acquired to pay defendant for her share of the parties' real property, and noted defendant "was going to be saddled with debt to pay the settlement."

YOU CANNOT DO THAT SAYS THE HIGHER COURT

The court held this was error because the trial court should not have considered this. Plaintiff did not have less than $207,000 in assets because of this. Rather, he had to make the payment because he had more than $207,000 in assets. Defendant's spousal support calculation should not have been reduced because of this decision.

HUSBAND ASSETS ARE INCOME PRODUCING

Also, plaintiff's assets are income-producing assets because he received the business. Defendant received cash, while liquid it earns very little income.

HUSBAND MAKE MUCH MORE THAN WIFE BY A MUL;TIPE OF SEVEN!

Further, plaintiff's income substantially exceeds defendant's, who earns about $8,580 from her part-time job and her net income from a full-time similar job would be about $14,000 a year. His yearly income was about seven times that of defendant.

SPOUSAL SUPPPORT IS TO ALLOW A STANDARD OF LIVING, THE CIOURT NEEDED A BUDGET

Also, the trial court made its decision on the amount of spousal support without any information as to defendant's living expenses. The MICHIGAN COURT OF APPEALS court did not believe the EMMET COUNTY DIVORCE trial court rendered a fair and equitable decision.



It was error for the EMMET COUNTY DIVORCE trial court not to order a greater amount of support for a longer period of time.



This was a 35-year marriage, defendant is 54 years old, has no higher education, and her only work experience was unskilled office work. There was no basis in the record for the trial court's conclusion a three-year period of spousal support was sufficient for defendant to learn new skills and/or secure better employment.

---

BACKGROUND



THERE WAS A TRIAL

Defendant Christine Welsh appeals as of right a divorce judgment issued following a

bench trial.

THERE WAS AN AGREEMENT BEFORE THE TRIAL ALL EXCEPT SPOUSAL SUPPORT

Prior to trial, Christine and Patrick Welsh reached an agreement on all issues except

spousal support.

EACH TO GET VALUE OF $207,000

As part of their agreement, they stipulated to a division of the marital property,

with each receiving approximately $207,000 in assets.foot note 1



WIFE SAYS SHE DID NOT GET ENOUGH SPOUSAL SUPPORT



On appeal, defendant challenges numerous factual findings of the trial court, and argues that the EMMET COUNTY DIVORCE trial court’s award of spousal support of $1000 a month for 3 years, when she requested permanent spousal support of $3000 a month, was unfair and inequitable.

EMMET COUNTY DIVORCE COURT DID IT WRONG, HOW IS THIS DECISION MADE?

We agree and remand for additional proceedings consistent

with this opinion.

WHAT THERE ABUSE OF DISCRETION

“We review a trial court’s decision to award spousal support for an abuse of discretion.

Gates v Gates, 256 Mich App 420, 432; 664 NW2d 231 (2003).



A EMMET COUNTY DIVORCE trial court’s factual findings

regarding spousal support are reviewed for clear error and are presumptively correct. Id. The

appellant has the burden of showing clear error. Id. If this Court determines that the EMMET COUNTY DIVORCE trial court’s findings are not clearly erroneous, this Court must then determine whether the trial court’s decision was fair and equitable in light of the facts. Id. at 433. The trial court’s award of spousal

support must be affirmed unless this Court is firmly convinced that the award was inequitable.

Id.



WHY DOES A COURT AWARD SPOUSAL SUPPPORT?



“The objective of spousal support is to balance the incomes and needs of the parties in a

way that will not impoverish either party, and support is to be based on what is just and

reasonable under the circumstances of the case.” Woodington v Shokoohi, ___ Mich App ___;

___ NW2d ___ (Docket No. 288923, issued May 4, 2010), slip op p 2.



HOW DOES A COURT DECIDE IF THERE SHOULD BE SPOUSAL SUPPORT IF ANY?

In determining whether to award spousal support, a trial court should consider the following factors:

(1) the past relations and conduct of the parties;

(2) the length of the marriage;

(3) the abilities of the parties to work;

(4) the source and amount of property awarded to the parties;

(5) the parties’ age;

(6) the abilities of the parties to pay alimony;

(7) the present situation of the parties;

(8) the needs of the parties,

(9) the parties’ health;

(10) the prior standard of living of the parties and whether

either is responsible for the support of others;

(11) contributions of the parties to the joint estate;

(12) a party’s fault in causing the divorce;

(13) the effect of cohabitation on a party’s financial status; and

(14) general principles of equity.

[Id.]

ARE ANY OF THE ASSETS INCOME PRODUCING?

Additionally, “‘[w]here both parties are awarded substantial assets, the court, in evaluating a

claim for [spousal support], should focus on the income-earning potential of these assets and

should not evaluate a party’s ability to provide self-support by including in the amount available

for support the value of the assets themselves.’” Gates, 256 Mich App at 436, quoting Hanaway

v Hanaway, 208 Mich App 278, 296; 527 NW2d 792 (1995).2



EMMET COUNTY DIVORCE COURT DISCOUNTED WIFES AWARD BY THE LOAN COST OF HUSBAND TO0O PAY HER.



In this case, both plaintiff and defendant received $207,000 in marital assets. In

considering plaintiff’s ability to pay alimony, the trial court took into account plaintiff’s duty to

repay a loan that he had acquired to pay defendant for her share of the couple’s real property, i.e.

2 Plaintiff attempts to argue that Hanaway in distinguishable because it involved wealthy parties.

There is nothing in the opinion that limits its application to only wealthy litigants and such a

proposition is not consistent with the very premise of our judicial system. Furthermore,

Hanaway has been applied to cases where the party paying alimony made only $45,000 and

where the martial assets awarded were only $57,000. See Klesczewski v Klesczewski,

unpublished opinion per curiam of the Court of Appeals, issued August 22, 2000 (Docket No.

213288); Kaylor v Kaylor, unpublished opinion per curiam of the Court of Appeals, issued

December 15, 1998 (Docket No. 204722).

WIFE AND HUSBAND RECEIVE SUBSTANTIAL ASSETS

In any event, the evidence shows that each party received $207,000 in assets. We believe that this is sufficient to constitute “substantial” assets. their house, outbuilding, and approximately 10 acres of land.

HUSBAND SADDFLED WITH PAYING WIFE

The trial court noted in its opinion that defendant was going to “be saddled with debt to pay the settlement.”

EMMET COUNTY DIVORCE COURT WAS WRONG

This was error.



HE OWED IT



That plaintiff had to take out a loan to pay defendant $119,000 of her award is of no

moment and the trial court should not have considered this. Plaintiff does not have less than

$207,000 in assets because of the loan. Rather, he had to make the payment because he had

more than $207,000 in assets—theoretically he had $326,000, thus necessitating the payment.

With plaintiff’s loan, each of the parties would net $207,000 in assets.3 Accordingly, it was

inappropriate to consider plaintiff’s required repayment of the loan when determining either his

ability to pay or the amount he should pay. Plaintiff elected to take out a loan rather than sell

assets. That was certainly his option, but defendant’s spousal support calculation may not be

reduced based on this decision.4 See Vanalstine v Vanalstine, unpublished opinion per curiam of

the Court of Appeals, issued September 22, 2005 (Docket No. 254655) (Concluding that the trial

court properly ignored that the defendant would have to mortgage his property to pay his share of

the property settlement when determining the defendant’s ability to pay spousal support because

the “defendant is not acquiring any existing debt, as he is allowed to choose whether to liquidate

or mortgage the property to plaintiff for her share of its worth”).



HUSBAND GOT THE BUSINESS AND WILL RECEIVE INCOME FROM IT

Moreover, plaintiff’s assets are income-producing assets because he received the

business. Defendant received cash that, although liquid, earns very little income. Accordingly,

although the parties received equal assets, plaintiff received the majority of the incomeproducing

assets.





WIFE MAKES $10 PER HOUR

The evidence also indicates that plaintiff’s income substantially exceeds defendant’s.

The trial court found that the 54-year-old defendant earns $10 per hour as a part-time receptionist

and that her take home pay was $330 biweekly or $8,580 per year based on the available 15 to 22

hours of work per week. The trial court concluded that her monthly net income for full-time

work would be roughly $1,168, which would be just over $14,000 per year. Although we do not

find this conclusion erroneous, the trial court did err in its calculation of plaintiff’s income by

double crediting capital improvements to the business against that income.

THE COURT COMPUTED HUSBANDS INCOME WRONG

The trial court gave plaintiff a double credit for reinvestments into his business. Plaintiff’s CPA testified that over the last six years plaintiff had put on average $22,000 per year back into the business in capital

improvements, although she anticipated that this amount would be less in the future because

much of the work was done.



While we do not take issue with the trial court’s deduction of the capital improvement

expenses from plaintiff’s annual income, the trial court based that annual income on the CPA’s

--

FOOT NOTE 3 That is to say, plaintiff still has $326,000 in assets, but has a loan of $119,000, to render his net assets $207,000.

FOOTNOTE 4 We also note that, although the trial court concluded that plaintiff did not have the ability to pay more spousal support, the conclusion was reached without any evidence as to the plaintiff’s

living expenses. Accordingly, on remand, the trial court shall make its determination of

plaintiff’s ability to pay based solely on evidence.

--

calculations, which set forth plaintiff’s “net income after taxes and depreciation.” The CPA

testified that depreciation is a representation of capital improvements for purposes of taxes,

which require the expenses to be spread out over a certain number of years. Plaintiff was not

entitled to be credited twice for the same expenses. Thus, giving him credit for the full amounts

of the annual capital improvement costs while also giving him credit for depreciation listed on

his taxes was clearly erroneous. The capital improvement expenses should have been subtracted

from the “net income after taxes and before depreciation.” By doing so, defendant’s net income

in 2003, 2004, 2005, 2006 and 2007 after taxes and capital improvements was $59,181, $55,050,

$63,018, $34,137,5 and $74,924 respectively for an average of about $57,500.6 As noted above,

we agree with the trial court’s finding as to defendant’s current full-time earning potential. As a

result, the record evidence indicates that plaintiff’s yearly net income is nearly seven times that

of defendant’s present net income and just over four times that of her potential full-time net

income.



FACTORS THE COURT SHOULD USE

Lastly, although the trial court properly declined to accept some of the amounts in

defendant’s proffered budget, it erred in dismissing some categories completely rather than

limiting the amounts. The purpose of spousal support is to make certain that the parties live as

close to their previous standard of living as possible without impoverishing either party. Magee

v Magee, 218 Mich App 158, 162; 553 NW2d 363 (1996).



COURT NEEDS A COMPLETE PICTURE

The factors that the trial court is to consider are designed to provide a complete picture of each parties assets, income, expenses, and earning ability, as well as a sense of the parties prior standard of living.



Here, where the trial court had no information on plaintiff’s monthly expenses, it failed to consider any of defendant’s living expenses, it failed to consider that plaintiff received the income-producing assets, and it

improperly considered plaintiff’s loan to pay the property settlement, we do not believe the trial

court rendered a fair and equitable decision. Gates, 256 Mich App at 436.



Under these circumstances, we conclude that it was error for the trial court not to order a

greater amount of support and for a longer period. This was a 35-year marriage. Defendant is 54

years old and is without higher education, with her only real work experience being unskilled

office work and keeping simple ledgers for a small family business. We find no basis in the

record for the court’s conclusion that a three-year period is sufficient for plaintiff to “learn new

skills and/or secure better employment.”7 Given that each party received substantial assets and

---

FOOTNOTE5 This relatively low year reflected a $33,377 improvement to the outbuilding on the couple’s

property, which was to be used as an office for the building.

FOOTNOTE6 This, of course, assumes that defendant does not obtain future income as a result of these

capital expenditures and treats them as total losses.

FOOTNOTE7 The court found that defendant had previously worked full-time for Independence Village at the same job she is presently performing on a part-time basis for $10 per hour, that she had

performed some manual labor in the family landscaping business, that she had done

housecleaning for others at some point, and that she ran the office and kept the books for the

couple’s landscaping business. The court noted that plaintiff has “some limited computer skills.”

Defendant testified that when her children were young she volunteered at the schools and had a

paid position at the school for about a year. After that, she occasionally cleaned homes, briefly

provided daycare services to one little boy, worked for an agency that provided some

homemaker services through a local agency and worked for Independence Village. Defendant

described her bookkeeping duties for the landscaping business as “entering checks into a book.”

Plaintiff presented testimony from a CPA who did his taxes and who he had hired to do the

landscaping company books after he and his wife separated. She testified that the bookkeeping

duties at the company involved “paying . . . bills and doing . . . payroll” and that she had not

examined defendant’s work because defendant used a “manual system” and started fresh each

year. Plaintiff testified that defendant would organize the expenses in a ledger but that he would

calculate the figures and determine the amount of receipts, expenses and income. More

generally, he stated that in regards to bookkeeping, “I would do some of it, and Christine, I

would say, though, she had a lot to do with it.” We do not believe that any of this evidence

provides a basis to conclude that, after three years, a 55-year-old woman will have obtained

higher paying employment than she is now capable of obtaining.

---



that plaintiff received the income-earning assets (the business), as well as having a far greater

earning potential over defendant, defendant should not be expected to consume her capital to

support herself. See Hanaway, 208 Mich at 295-296.

We remand for a determination of an increased amount and duration of spousal support.

We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Pat M. Donofrio



-1Foot note 1 Under the terms of the agreement, plaintiff was to receive the following: a 2002 Jeep (value

unspecified); the marital home (valued at $219,500); Patrick’s business, Country Garden &

Landscape (valued at $51,000); plaintiff’s IRA (valued at $30,000); plaintiff’s life insurance with

Genworth Annuity and Farm Bureau; plaintiff’s CD (valued at roughly $11,000); and plaintiff’s

cash accounts (valued at roughly $12,000). Defendant was to receive the following: a 2003

Pontiac (value unspecified); defendant’s 401(k) (valued at $18,000); defendant’s IRA (valued at

$5,600); defendant’s life insurance with Farm Bureau; defendant’s CD (valued at roughly

$11,000); defendant’s cash accounts (valued at roughly $51,000); and a cash payment from

plaintiff for $119,000 to equalize the property settlement.

-

Posted here by
Flint Divorce Lawyer
Terry Bankert
http://attorneybankert.com/

Friday, June 18, 2010

Midland Michigan Circuit Court Divorce Child Custody Child Parenting time Issues presented by Flint Divorce Lawyer Terry Bankert 810-235-1970

Midland  Michigan Circuit Court Divorce Child Custody Child Parenting time  Issues presented by Flint Divorce Lawyer Terry Bankert 810-235-1970:

1. Did the Midland Divorce Court properly grant the plaintiff-mother's petition for modification of custody, awarded her sole legal and physical custody of the two minor children, and modified the defendant-father's parenting time;


2. In a Michigan, Midland or Flint Divorce what is Proper cause/change of circumstances under MCL 722.27(1)(c); Foskett v. Foskett; People v. Gonzalez; Berger v. Berger; Vodvarka v. Grasmeyer; Fletcher v. Fletcher; Shulick v. Richards;

3.Did the Midland Divorce Court court correctly find an established custodial environment (ECE) existed as to mother- plaintiff but there was none with defendant-father; Mogle v. Scriver; Baker v. Baker; The statutory best interest factors (MCL 722.23);

4.Whether the Midland divorce court violate the defendant's due process rights to a fair tribunal and should have determined the preferences of the children; Reed v. Reed; MCL 722.23(i); Treutle v. Treutle; Bowers v. Bowers; Applicability of Stringer v. Vincent; Sinicropi v. Mazurek; McCain v. McCain

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 ,

UNPUBLISHED opinion, May 25, 2010 ,v No. 294177

Midland Circuit Court, LC No. 06-001485-DM

LISA A. DOUGLAS, f/k/a LISA A. EATON, Plaintiff-Appellee,

RUSSELL E. EATON, Defendant-Appellant.

Before: BANDSTRA, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.,e-Journal Number: 45946.

Posted here by Flint Divorce Attorney Terry Bankert whose comments are CAP headline or cited [trb] for purposes or lay understanding and SEO.


FATHER LOSES


The Michigan Court of Appeals found as to the existence of proper cause to revisit the custody order was not against the great weight of the evidence, the Midland trial court's findings as to the existence of an ECE as to the parties and regarding the best interest factors were also not against the great weight of the evidence, and the Midland court did not violate the defendant-father's due process rights by making credibility determinations in plaintiff-mother's favor and by not interviewing the minor children to discover their preference, the Michigan Court of Appeals court affirmed the Midland trial court's order granting mother-plaintiff's petition for modification of custody, awarding her sole legal and physical custody of the minor children, and modifying father-defendant's parenting time.



HERE FATHER- Defendant appeals as of right the order granting MOTHER-plaintiff’s petition for modification of custody and awarding MOTHER-plaintiff sole legal and physical custody of the minor children and modifying FATHER-defendant’s parenting time. For the reasons set forth in this opinion, we THE STATE OF MICHIGAN COURT OF APPEALS affirm THE DECISION OF THE MIDLAND DIVORCE COURT

.

I. FACTS AND PROCEDURAL HISTORY



DIVORCED IN 2007

Plaintiff and defendant were divorced in June 2007.



TWO MINOR CHILDREN

They had two minor children, X…(d/o/b 3/15/99) and Y…. (d/o/b 10/14/00).

ORIGINAL JOINT CUSTODY, PLAY ON WORDS PRIMARY RESIDENCE TO MOM

The divorce judgment awarded the parties joint legal and physical custody of the minor children, with the children’s primary residence being with MOTHER plaintiff. Defendant was awarded parenting time on alternating week-ends and for one evening each week on the weeks he did not have parenting time on the weekend.



DAD WANTS A CHANGE 08/14/2008



On August 14, 2008, defendant filed a petition for change of custody, seeking equal parenting time for the parties, with custody of the minor children alternating each week.



MOM SAYS I”LL ANSWER THAT AND RAISE A THREATENED CHANGE IN PARENTING TIME



Plaintiff filed a response to defendant’s petition for change of custody and a counter-petition for a change in parenting time that sought, among other things, to increase plaintiff’s parenting time and decrease defendant’s parenting time.



04/08/2009 MOM RAISES THE STAKES BY FILING FOR SOLE CUSTODY, she wins!!!!



On April 8, 2009, plaintiff filed an amended petition for modification of

custody, seeking sole legal and physical custody of the parties’ minor children.



MIDLAND DIVORCE COURT AGREES TO LOOK AGAIN AT MIDLAND CHILD CUSTODY

The trial court found that there was proper cause to revisit the custody order and found
that there was an established custodial environment with plaintiff, but not with defendant.



AFTER TWO YEARS THE MIDLAND DIVORCE COURT SAYS IT IS NOT IN THE CHILDRENS BEST INTEREST TO LET THEIR FATHER SHARE JOINT CUSTODY!



The trial court considered the statutory best interest factors in MCL 722.23 and found that it was in
the children’s best interests to award sole legal and physical custody to plaintiff.



FATHER REDUCED BY THE MIDLAND DIVORCE CHILD CUSTODY COURT TO BEING AN EVERY OTHER WEEKEND FATHER!HOW DID THAT HAPPEN?

Defendant was awarded parenting time on alternating week-ends during the school year, from 6:00 p.m. on
Friday to 6:00 p.m. on Sunday. The trial court ordered summer parenting time “according to the
Midland County Co-Parenting Plan . . . .” Defendant thereafter filed a motion for
reconsideration, which the trial court denied.1


II. ANALYSIS



1. STANDARD OF REVIEW FOR THE MICHGIAN COURT OF APPEALS TO SECOND GUESS THE MIDLAND CHILD CUSTODY COURT



This MICHIGAN COURT OF APPEALS Court applies three standards of review in child custody cases. See Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994).

FIRST,

First, the trial court’s findings of fact are reviewed under the “‘great weight of evidence’” standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. Id. at 877-878, quoting MCL 722.28.


A MIDLAND CHILD CUSTODY trial court’s findings regarding the existence of proper cause or a change in circumstances sufficient to reconsider a custody award and the existence of an established custodial
environment, as well as the trial court’s findings regarding the best interest factors under MCR
722.23, are reviewed under the great weight of the evidence standard. Berger v Berger, 277
Mich App 700, 705; 747 NW2d 336 (2008); Vodvarka v Grasmeyer, 259 Mich App 499, 512;
675 NW2d 847 (2003).

SECOND

Second, this Court reviews questions of law for clear legal error that
occurs when a trial court incorrectly chooses, interprets, or applies the law. Berger, 277 Mich
App at 706.

THIRD

Third, discretionary rulings, such as custody decisions, are reviewed for an abuse of
discretion. Fletcher, 447 Mich at 879; Shulick v Richards, 273 Mich App 320, 323-325; 729
NW2d 533 (2006).

OKAY JUST WHAT IS AN ABUSE OF DISCRETION?

An abuse of discretion in matters involving child custody exists where the
result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or
the exercise of passion or bias. Shulick, 273 Mich App at 324-325. The overriding concern in
custody determinations is the child’s best interests. Fletcher v Fletcher, 229 Mich App 19, 29;
581 NW2d 11 (1998).


2. PROPER CAUSE/CHANGE OF CIRCUMSTANCES UNDER MCL 722.27(1)(c)

FATHER -Defendant first argues that there was not proper cause to modify the custody order. A
trial court may modify a custody award only if the moving party first establishes proper cause or
a change in circumstances. MCL 722.27(1)(c); Vodvarka, 259 Mich App at 508-509.



WHY DO WE HAVE THIS BURDEN TO CHANGE CHILD CUSTODY?

The goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except
under the most compelling circumstances. Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363
(2001). Thus, a party seeking a change in child custody is required, as a threshold matter, to first
demonstrate to the trial court either proper cause or a change in circumstances. Vodvarka, 259
Mich App at 508.

NO PROVE , NO GO FORWARD

If a party fails to do so, the trial court may not hold a child custody hearing.
Id. In Vodvarka, this Court explained the terms “proper cause” and “change of circumstances”:

WHAT IS PROPER CAUSE IN MIDLAND CHILD CUSTODY?

[T]o establish “proper cause” necessary to revisit a custody order, a movant must

prove by a preponderance of the evidence the existence of an appropriate ground

for legal action to be taken by the trial court. The appropriate ground(s) should be

relevant to at least one of the twelve statutory best interest factors, and must be of

such magnitude to have a significant effect on the child’s well-being. When a

movant has demonstrated such proper cause, the trial court can then engage in a

reevaluation of the statutory best interest factors.

* * *

YOU LOOK AT YOUR LAST ORDER ANDS ASK “WHATS NEW”!



[I]n order to establish a “change of circumstances,” a movant must prove that,

since the entry of the last custody order, the conditions surrounding custody of the

child, which have or could have a significant effect on the child’s well-being,

have materially changed.

NEW ,THAT SIGNIFICANTLY AFFECTS THE CHILD

Again, not just any change will suffice, for over time

there will always be some changes in a child’s environment, behavior, and wellbeing.

MORE THAN NORMAL LIFE CHANGES

Instead, the evidence must demonstrate something more than the normal

life changes (both good and bad) that occur during the life of a child, and there

must be at least some evidence that the material changes have had or will almost

certainly have an effect on the child. This too will be a determination made on

the basis of the facts of each case, with the relevance of the facts presented being

gauged by the statutory best interest factors. [Vodvarka, 259 Mich App at 512-

514 (emphasis in original).]

FATHER SOUGHT A CHANGE IN CUSTODY !IN RETALIATION TO MOTHERS MOTION!

In this case, defendant himself sought a change in custody, and in his petition for change

of custody, he argued that there had been a substantial change of circumstances since the entry of

the judgment of divorce.


WHAT DID FATHER SAY THE CHANGE WAS?



In his petition, defendant articulated numerous specific instances that

constituted a change of circumstances, including…

ONE

plaintiff’s strict enforcement of the parenting time schedule in the judgment of divorce,

TWO

plaintiff’s violations of the inherent rights of the minor children,

THREE

plaintiff’s refusal to let defendant see the minor children on a particular weekend for a
matter of hours per defendant’s special request,

FOUR

plaintiff’s failure to pick up the children after defendant exercised parenting time with them,

FIVE…BINGO...IT'S ALL ABOUT BASEBALL

problems between the parties regarding one of the minor children’s participation on a baseball team that was coached by defendant,

SIX

and a conflict between the parties that resulted in a scene at the minor children’s baseball practice.



COURT DID NOT THINK DAD HAD ENOUGH


The MIDLAND CHILD CUSTODY trial court specifically rejected defendant’s contention that plaintiff’s

Strict enforcement of the parenting time schedule in the judgment of divorce constituted a change in

circumstances. In reviewing the specific instances cited by defendant, the trial court stated that

the parties’ problems with co-parenting were more properly characterized as proper cause to

revisit the custody order, rather than a change of circumstances sufficient to revisit custody:

The specific instances raised by the Defendant in his petition were also

thoroughly discussed at the hearing through testimony by both parties and their

witnesses.



MIDLAND CHILD CUSTODY COURT DECIDED THE PARENTS CANNOT CO- PARENT

The situations are clear illustrations of the parties’ current inability to

co-parent their children in a manner geared toward the best interests of the

children. The Court does not feel, however, that the contention between the

parties is appropriately categorized as a change of circumstances.



WOW!.... I SHOULD HAVE THOUGHT OF THAT. ...IN JOINT, LACK OF CO-PARENTING IS A CHANGE IN CIRCUMSTANCES

Instead, the coparenting  problems should be classified as proper cause by which to revisit the

current order. The issues surrounding the parties’ inability to co-parent, and the

instances in which those issues have manifested themselves, are clearly relevant

to the parties’ willingness and ability to encourage and facilitate a close

relationship between the child and the other parent. The facilitation and

encouragement of such relationship is one of the twelve best interest factors, and

based on the testimony presented, the problems between the parties are having a

significant effect on the well-being of the children involved in this case.

Therefore, the Court finds proper cause exists to revisit the current custody order.

DAD LOST HIS ABILITY TO CHALLENGE MOM'S LACK OF CHANGE IN CIRCUMSTANCES WHEN HE ARGUES IN HIS OWN PETITION THERE IS.

It is arguable that defendant has waived his argument that there was not proper cause or

change of circumstances sufficient to revisit the custody order by asserting in his petition for

change of custody that there was proper cause to revisit the custody issue. Error requiring

reversal cannot be error to which the aggrieved party contributed by plan or negligence. People

v Gonzalez, 256 Mich App 212, 224; 663 NW2d 499 (2003).



MIDLAND CHILD CUSTODY COURT SAID DAD DID NOT BRING ENOUGH TO THE TABLE



Even if defendant has not waived his argument regarding the lack of proper cause or change of circumstances, his argument is without merit.



PRACTICE NOTE -MOTHER BROUGHT WITNESS TO COURT ON FATHERS NON ABILITY TO CO PARENT.

Defendant argues that there was not proper cause to revisit the custody issue

because the only testimony that the parties’ inability to co-parent the children was affecting the

children came from plaintiff and plaintiff’s witnesses.


LOCAL COURT GETS TO LOOK AT CREDIBILITY

Defendant’s argument in this regard essentially asks this Court to interfere with the factfinder’s duty to determine the credibility of witnesses and the weight of the evidence, something which this Court cannot do. MCR 2.613(C); Berger, 277 Mich App at 715.

MIDLAND CHILD CUSTODY COURT GOT IT RIGHT

As the trial court observed, one of the statutory best

interest factors is “[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’s finding that the parties were unable to coparent

and that this affected the parties’ ability to facilitate a close relationship between the

children and the other parent was based on its determinations regarding the credibility of the

witnesses and its weighing of the evidence. The trial court’s findings were not against the great

weight of the evidence, and the trial court properly found that proper cause existed to revisit the

custody order.

2. ESTABLISHED CUSTODIAL ENVIRONMENT


FATHER Defendant next argues that the trial court erred in ruling that an established custodial

environment existed with respect to plaintiff and in ruling that there was no established custodial

environment with respect to defendant. As noted above, whether an established custodial

environment exists is a question of fact that this Court must affirm unless the trial court’s finding

is against the great weight of the evidence. Berger, 277 Mich App at 706. “A finding is against

the great weight of the evidence if the evidence clearly preponderates in the opposite direction.”

Id. The trial court must address whether an established custodial environment exists before it

makes a determination regarding the child’s best interests. Mogle v Scriver, 241 Mich App 192,

197; 614 NW2d 696 (2000).

WHAT IS AN ESTABISHED CUSTODIAL ENVIRONMENT?



“An established custodial environment is one of significant
duration in which a parent provides care, discipline, love, guidance, and attention that is
appropriate to the age and individual needs of the child.

ITS PHYSICAL AND PSYCHOLOGICAL

It is both a physical and psychological
environment that fosters a relationship between custodian and child and is marked by security,
stability, and permanence.” Berger, 277 Mich App at 706, citing Baker v Baker, 411 Mich 567,
579-580; 309 NW2d 532 (1981).



OVER A PERIOD OF TIME

An established custodial environment exists “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,” MCL 722.27(1)(c), and “the relationship

between the custodian and the child is marked by qualities of security, stability and

permanence.” Baker, 411 Mich at 579-580.

BOTH PARENTS CAN HAVE IT

An established custodial environment may exist

with both parents where a child looks to both the mother and father for guidance, discipline, and

the necessities of life. Foskett, 247 Mich App at 8; Mogle, 241 Mich App at 197-198.

The trial court found that there was an established custodial environment with plaintiff,

but that there was not an established custodial environment with defendant:





MIDLAND CHILD CUSTODY COURT FINDS FOR MOM

Court finds that there is an established custodial environment with the

Plaintiff in this case.

WHY?

ONE

Plaintiff was the children’s primary caregiver from their

birth, staying home with the children while Defendant worked.

TWO

This arrangement

continued until Defendant’s retirement in 2005. At that time, Plaintiff did return

to work, but she has continued to be a constant, positive presence in the children’s

lives.

THREE

It is clear that the children look to her for guidance, discipline, comfort and

the fulfillment of their needs.

FOUR

On the other hand, the relationship the boys have with their father has not

been shown to be of the same positive nature as that with their mother. The boys

have spent more time with their father since his retirement than they did in the

first years of their lives.

FIVE

However, that time has been sporadic and not fostered

the same type of relationship with their father as the boys have with their mother.



SIX

The time Defendant shares with the boys is primarily spent engaging in physical

and outdoor activities. It seems that the boys look to their father more as someone

to have fun with than someone who provides them guidance in their lives.

SEVEN

While it does appear that the boys listen to their father’s directives, they seem to do so

because they fear his reactions more than they respect his authority as a parent.

DAD WAS NOT A PARENTING PARENT

The Court finds no established custodial environment with Defendant.

The trial court’s finding that there was an established custodial environment between the

children and plaintiff was not against the great weight of the evidence.



KIDS ARE MORE SECURE WITH MOM

There was evidence that

the relationship between plaintiff and the children had qualities of security, stability, and

permanence.



MOMS HOME WAS THE PRIMARY RSSIDENCE

Furthermore, plaintiff’s residence had been the children’s primary residence since

the parties divorced in July 2007, and the children spend the majority of their days and nights

with plaintiff. As for defendant, the evidence does not clearly preponderate towards a finding of

an established custodial environment. According to defendant, the trial court downplayed

defendant’s role in the children’s lives and ignored credible witnesses that positively described

the children’s relationship with defendant.



DAD DOES LOVE HIS CHILDREN

It is true that there was testimony that defendant

loves his children and that he generally exercised his parenting time with the children,

participated with their baseball and school activities, and enjoyed outdoor activities with them,

such as hunting, fishing and golfing. Furthermore, there was testimony that defendant guided

and disciplined the children.

DADS HOME LACKED SECURITY

However, there was also evidence that tended to show that the

relationship between defendant and the children did not have qualities of security and stability.

ONE...DAD IS AN ANGRY GUY

For example, there was evidence that defendant sometimes became angry when the children

were present and that his anger affected the children,

TWO..DAD PUT THE DRAMA INFRONT OF THE CHILDREN

there was evidence that defendant made custodial exchanges traumatic, and there was evidence that defendant sometimes did not exercise his parenting time when he was expected to.

THREE

Furthermore, there was evidence to support the trial

court’s finding that defendant was the “fun” parent with whom the boys liked to hang out and

have a good time.

LOCAL COURT GETS TO DECIDE

To the extent that the trial court’s conclusion that there was not an established custodial

environment with defendant involved credibility determinations and the possible rejection of

evidence presented by defendant, we note that the existence of an established custodial

environment is a factual inquiry, and we defer to the trial court’s determinations regarding the

weight of the evidence and the credibility of witnesses. MCR 2.613(C); Berger, 277 Mich App

at 715. We find that the evidence does not clearly preponderate against the trial court’s findings

regarding the existence of an established custodial environment with respect to plaintiff and the

lack of an established custodial environment with respect to defendant. The trial court’s findings

were not against the great weight of the evidence, and the trial court did not err in finding that an

established custodial environment existed with plaintiff, but not with defendant.

3. STATUTORY BEST INTEREST FACTORS

Defendant -FATHER next argues that the trial court’s findings with respect to the statutory best

interest factors were against the great weight of the evidence.



BEST INTEREST FACTORS

To determine child custody, the

trial court must consider the statutory best interest factors in MCL 722.23:

As used in this act, “best interests of the child” means the sum total of the

following factors to be considered, evaluated, and determined by the court:

(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 trial court found the parties equal for factors (c) and (f). The trial court found that

factors (a), (b), and (h) favored plaintiff, that factor (d) slightly favored plaintiff, and that factors

(e), (g), (j) and (k) strongly favored plaintiff. The trial court did not inverview the minor

children and therefore did not favor either party under (i). Furthermore, the trial court did not

consider any other factor under (l).

A

The trial court found in plaintiff’s favor for factor (a). Defendant attacks the trial court’s

finding regarding this factor on the basis that the trial court disregarded the testimony of

unbiased defense witnesses. As the trier of fact, the trial court was in the best position to

determine the credibility of witnesses and determine what weight to give the evidence. MCR

2.613(C); Berger, 277 Mich App at 715. The trial court apparently found the testimony of

plaintiff and her witnesses more credible in this regard than the testimony of defendant and his

witnesses. The trial court’s finding for factor (a) was not against the great weight of the

evidence.



B

The trial court also found in plaintiff’s favor for factor (b). The trial court found the

parties’ capacity to continue the education and raising of the children as Catholics to be

significant regarding this factor and found that defendant was “not consistent with delivering the

boys to religious activities during his parenting time.” There was evidence that plaintiff led the

religious training of the parties’ children and evidence regarding defendant’s lack of participation

and involvement in the children’s religious education and even defendant’s inhibition of the

children’s religious training. The trial court’s finding regarding this factor was not against the

great weight of the evidence.



D

The trial court found that factor (d) slightly favored plaintiff because of the children’s

familiarity with plaintiff’s home. Defendant argues that the trial court failed to note that the

minor children had been spending significant time with defendant in defendant’s new home since

January 2007. This may be true, but the evidence established that the minor children spent the

majority of their days and nights in plaintiff’s home and that the environment in plaintiff’s home

was stable. The trial court did not err in slightly favoring plaintiff under this factor.

E

The trial court found that factor (e) strongly favored plaintiff. There was evidence that

plaintiff, who had not remarried, was in a long-term relationship with a man and that the man

resided in plaintiff’s home and had a good relationship with the minor children. Defendant had

just remarried the very month of the custody trial. Defendant’s wife was a woman he had met

online. He met her in person for the first time in December 2008 and they spent some time

together for about five weeks from March 25, 2009, until they were married on May 3, 2009.

The minor children spent some time with defendant’s wife during these visits, but she did not

appear to have given a lot of consideration to her role as step-mother to the minor children, as

evidenced by her statement that she “never really thought about being their step-mom.”

Defendant takes issue with the trial court’s conclusion that defendant places little value

on his relationships with women. It can be inferred from certain evidence that defendant places

little value on his relationships with women. There was evidence that defendant called plaintiff

vulgar names, sometimes in the children’s presence, and he apparently dated a woman who he

met online because she lived near an author of books that one of his sons liked to read.

According to defendant, “the only reason [he] wanted to interact with” the woman was to meet

this author. Thus, there was evidence to permit the inference to support the trial court’s finding

that defendant places little value on his relationships with women. Furthermore, given the

evidence, and inferences therefrom, regarding the permanence of the parties’ respective homes,

we conclude that the trial court’s finding regarding this factor was not against the great weight of

the evidence.

G

Defendant argues that the trial court erred in strongly favoring plaintiff under factor (g),

the mental and physical health of the parties involved. Defendant was disabled from the

military. He described the nature of his disability as including injuries to both knees and his

right shoulder. He also stated that he ingested gas during Operation Desert Storm and that he

had stomach problems and irritable bowel syndrome. Furthermore, defendant testified that he

suffered from depression, anxiety, and post-traumatic stress disorder. In contrast, plaintiff does

not have any significant physical or mental health issues. The trial court’s finding regarding this

factor was not against the great weight of the evidence.

H

Defendant does not advance any meaningful argument that the trial court erred in

favoring plaintiff under factor (h). “A party abandons a claim when it fails to make a meaningful

argument in support of its position.” Berger, 277 Mich App at 712.

J

Defendant argues that the trial court wrongfully strongly favored plaintiff under factor (j).

Defendant’s argument in this regard is limited to listing ways in which plaintiff attempted to

undermine defendant’s relationship with the children. We again note that a party waives a claim

by failing to make a meaningful argument in support of his position. Id. To the extent that this

factor depended on credibility determinations, the trial court is in the best position to determine

the credibility of witnesses and weigh the evidence, and this Court must give deference to the

trial court’s superior abilities in this regard. MCR 2.613(C); Berger, 277 Mich App at 715.

K

Defendant also argues that the trial court erred in strongly favoring plaintiff under factor

(k), domestic violence. According to defendant, plaintiff was the controlling party, and she was

verbally and emotionally abusive. Defendant asserts that even though plaintiff called the police

on several occasions during the marriage, no police complaints were ever filed and defendant

was never charged with domestic violence.

There was evidence that defendant blockedplaintiff’s car with his truck at a baseball game because he was angry at her, that he threatened to kill plaintiff’s boyfriend,

that he was sometimes “volatile,” and that plaintiff had sought help

from law enforcement on four occasions after the parties were separated because of defendant’s

conduct. A woman who saw defendant block plaintiff’s car in at the baseball game later

approached plaintiff and told plaintiff that she worked for a domestic violence and sexual assault

shelter and that plaintiff should call if she needed anything. Therefore, even without evidence of

a criminal complaint or that defendant was charged without domestic violence, the trial court’s

finding regarding this factor was not against the great weight of the evidence.

In sum, the trial court’s findings of fact regarding the best interest factors were not

against the great weight of the evidence.

4. DUE PROCESS

Defendant finally argues that the trial court violated his due process right to a fair

tribunal. According to defendant, the trial court violated his due process rights by failing to hold

a hearing to determine the preferences of the minor children, MCR 722.23(i), and by deferring to

the report of psychologist Dr. Tracy Allan without taking into consideration any of defendant’s

witnesses or exhibits in rendering its opinion.

We review de novo issues of constitutional law. Sinicropi v Mazurek, 273 Mich App

149, 155; 729 NW2d 256 (2006).



LIFE AND LIBERTY

The Michigan Constitution and the United States Constitution both preclude the

government from depriving a person of life, liberty, or property without due process of law. US

Const, Am V; Const 1963, art 1, § 17; Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825

(2005). “Parents have a significant interest in the companionship, care, custody, and

management of their children, and the interest is an element of liberty protected by due process.”

In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003).

JUST WHAT IS DUE PROCESS

There are two types of due process:

procedural due process and substantive due process. By Lo Oil Co v Dep’t of Treasury, 267

Mich App 19, 32-33; 703 NW2d 822 (2005). Procedural due process requires notice and a

meaningful opportunity to be heard before an impartial decision maker. Mettler Walloon, LLC v

Melrose Twp, 281 Mich App 184, 213-214; 761 NW2d 293 (2008). Substantive due process is

concerned with the arbitrary deprivation of a liberty or property interest. Id. at 201.

The trial court’s rejection of defendant’s witnesses and defendant’s own testimony and

acceptance of plaintiff’s witnesses and evidence did not deprive defendant of his due process

rights. Once again, defendant’s argument is tantamount to a rejection of the trial court’s

credibility determinations. As stated previously, this Court defers to the trial court’s superior

ability to make determinations regarding the credibility of witnesses and the weight of evidence.

MCR 2.613(C); Berger, 277 Mich App at 715. The trial court’s apparent conclusion that

plaintiff’s evidence was more credible or that defendant’s evidence was incredible does not mean

that the trial court failed to consider defendant’s testimony and other evidence. The finder of

fact does not violate a party’s due process rights by finding the party’s evidence incredible or

less credible than evidence presented by the opposing party. Furthermore, the fact that the trial

court may not have mentioned certain portions of defendant’s evidence does not mean that the

trial court failed to consider defendant’s evidence. The trial court need not comment on every

matter in evidence. Sinicropi, 273 Mich App at 180. Defendant’s argument in this regard is

without merit.

In addition, the trial court did not violate defendant’s due process rights by not holding a

hearing to determine the custody preferences of the minor children under MCL 722.23(i). Under

factor (i), the trial court must consider “[t]he reasonable preference of the child, if the court

considers the child to be of sufficient age to express preference.” MCL 722.23(i); Treutle v

Treutle, 197 Mich App 690, 694; 495 NW2d 836 (1992). In this case, the minor children were

eight and ten years old at the time of trial. This Court has stated that children of six years of age

are generally old enough to express a preference. Bowers v Bowers, 190 Mich App 51, 55-56;

475 NW2d 394 (1991). The trial court did not interview the minor children to ascertain their

preferences.



SHOULD THE LOCAL COURT HAVE LISTENED CLOSER TO THE CHILDREN?

Defendant cites Stringer v Vincent, 161 Mich App 429; 411 NW2d 474 (1987), in support

of his contention that the trial court violated his due process rights by failing to consider the

reasonable preference of the children. In Stringer, which involved the defendant’s petition for

change of custody, this Court stated: “[t]he trial court’s failure to interview the children was

itself error requiring reversal.” Id. at 434. We find Stringer to be distinguishable from the

instant case, however, because in Stringer, the trial court made a custody decision without

holding an evidentiary hearing at all, on the basis of the pleadings and a friend of the court

report, which the parties had not agreed could be considered as evidence. Id. at 432-433. We

reversed because of the trial court’s failure to hold an evidentiary hearing and consider the best

interest factors. Id. at 433. In so doing, we stated: “[t]he trial court could not have considered

the eleven factors set out in the definition of a child’s best interests since it had been presented

with no evidence.” Id. Unlike the facts in Stringer, in this case, the trial court held an

evidentiary hearing and considered the best interest factors and made findings regarding those

factors. Although the trial court did not ascertain the children’s preference under factor (i), it

found most of the best interest factors favored plaintiff (and that four factors “strongly” favored

plaintiff) and that the parties were equal for two factors. Significantly, the trial court did not find

in defendant’s favor for any of the best interest factors. The trial court’s holding of an

evidentiary hearing and consideration of the best interest factors in the instant case distinguishes

it from Stringer. Furthermore, in requiring the trial court to interview the children to determine

their preference in Stringer, this Court noted that its statements regarding factor (i) were made

only “to provide guidance to the trial court on remand.” Id.



WE HAVE SAID THIS BEFORE

More recently, this Court has held that the trial court’s failure to consider the preference

of the child under factor (i) does not require reversal if the parties did not ask the trial court to

speak to the child regarding his or her preference and the child’s preference would not have

changed the trial court’s ruling. Sinicropi, 273 Mich App at 182-183. In Sinicropi, we stated:

[Defendant] also takes issue with the fact that the trial court did not

consider the child’s preference under factor i (child’s preference). The trial court

stated that it could not consider the child’s preference because none of the parties

presented him for an interview. We note that the parties stood mute when the trial

court made this statement, and there is no indication in the record that [defendant]

wished or requested that the trial court speak to the child regarding his preference.

This fact distinguishes the case from Flaherty v Smith, 87 Mich App 561, 564-

565; 274 NW2d 72 (1978); Lewis v Lewis, 73 Mich App 563, 564; 252 NW2d

237 (1977), and In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550

(1975), in which the trial court either declined or refused to interview the children

on request. We recognize that “[a] trial court must consider, evaluate, and

determine each of the factors contained in [MCL 722.23]” when determining a

child’s best interests. Mann v Mann, 190 Mich App 526, 536; 476 NW2d 439

(1991). Assuming that the child, who was six years old when the custody hearing

was conducted, was of sufficient age to express a preference, and assuming that

the trial court erred in not interviewing the child when neither party apparently

wished to have the child appear, reversal is not warranted because had the child

expressed a preference, it would not have changed the trial court’s ruling, given

the court’s overall statements and strong feelings regarding what was best for the

child . . . . [Sinicropi, 273 Mich App at 182-183.]

The facts of the instant case are similar to the facts in Sinicropi. In this case, there is no

indication that defendant presented the minor children to the court for an interview.2 Moreover,

there is no indication that the trial court declined or refused to interview the children on request.

In addition, even if defendant had asked the trial court to speak with the minor children to

ascertain their preference, in the present case, like in Sinicropi, the trial court’s findings

regarding the other best interest factors and statements regarding the best interests of the children

indicate that the minor children’s preference would not have changed the trial court’s ruling. In

the present case, the trial court did not find any of the best interest factors in favor of plaintiff.

Moreover, even if the children had articulated a preference to be in the custody of defendant, the

best interest factors need not be given equal weight, McCain v McCain, 229 Mich App 123, 131;

580 NW2d 485 (1998), and a child’s preference does not automatically outweigh all other best

interest factors, Treutle, 197 Mich App at 694, which the trial court found primarily in favor of

2 There is an indication that defendant wished to have the trial court speak with the minor

children regarding their preference even though he did not present them to the trial court for an

interview. On the record on the last day of trial, May 28, 2009, the trial court stated that in lieu

of closing arguments, it wanted the parties to prepare written proposed findings of fact and

conclusions of law. The trial court stated that it would give the parties 14 days to prepare these

closing briefs, which would have made them due on June 11, 2009. Thereafter, counsel for

plaintiff advised the trial court that school for the minor children was out on June 12 and that

plaintiff “would appreciate any speed that you could lend to the decision, especially as it relates

to the summer break parenting time.” The trial court then stated that it was willing to shorten the

timetable to facilitate an earlier decision, but counsel for defendant made comments that

indicated that it would be difficult for her to complete the document any earlier than June 11,

2009. The trial court ultimately left the June 11, 2009, deadline intact, and defendant filed his

closing brief with the trial court on June 11, 2009. In his closing brief, defendant asserted that

“the preference of the children should be determined by this court.” Under the facts of this case,

such a statement, assuming that it constitutes a request that the trial court speak with the minor

children to ascertain their preference, is not a timely request for the trial court to interview the

minor children to ascertain their preferences, when there is no evidence that defendant had the

children available so that the trial court could speak to them that day, and defendant knew that

the children would be out of school on June 12, and knew that the trial court desired to issue its

decision before that date. In fact, the trial court issued its order and opinion on June 11, 2009,

and defendant’s brief on appeal indicates that the trial court actually rendered its opinion before

receiving defendant’s closing brief, although it is impossible to verify this because there is no

time stamp on either the closing brief or the opinion. Significantly, defendant’s motion for

reconsideration did not include any argument regarding the trial court’s failure to ascertain the

minor children’s preference under MCL 722.23(i).

plaintiff. The trial court did not violate defendant’s due process rights by not interviewing the

minor children to determine their preference under factor (i).

III. CONCLUSION

In sum, the MIDLAND CHILD CUSTODY trial court’s findings regarding the existence of proper cause to revisit the

custody order were not against the great weight of the evidence. In addition, the trial court’s

findings regarding the existence of an established custodial environment with respect to plaintiff

and defendant and regarding the best interest factors also were not against the great weight of the

evidence. Finally, the trial court did not violate defendant’s due process rights by making

credibility determinations in plaintiff’s favor and by not interviewing the minor children to

determine their preference.

MICHIGAN COURT OF APPEALS AGREES WITH THE MIDLAND CHILD CUSTODY COURT

Affirmed. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.

/s/ Richard A. Bandstra,/s/ Stephen L. Borrello,/s/ Douglas B. Shapiro





Posted here by

Terry R. Bankert

http://attorneybankert.com/

Or http://dumpmyspouse.com/

[1]

Generally

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 ,

UNPUBLISHED opinion, May 25, 2010 ,v No. 294177

Midland Circuit Court, LC No. 06-001485-DM

LISA A. DOUGLAS, f/k/a LISA A. EATON, Plaintiff-Appellee,

RUSSELL E. EATON, Defendant-Appellant.

Before: BANDSTRA, P.J., and BORRELLO and SHAPIRO, JJ.

PER CURIAM.,e-Journal Number: 45946.

Posted here by Flint Divorce Attorney Terry Bankert whose comments are CAP headline or [] for purposes or lay understanding and SEO.

[2]





FOOTNOTE1 In its order denying defendant’s motion for reconsideration, the trial court clarified that while it eliminated defendant’s mid-week parenting time during the school year, defendant’s mid-week

parenting time on alternating weeks would continue during the summer.