Tuesday, June 01, 2010

Father in Flint Divorce Does not get the divorce he wants, commented on by Flint Divorce Attorney Terry Bankert, 235-1970


Flint Child support lawyer, child custody attorney and Divorce lawyer reviews a 2009 opinion. If you have divorce questions or need immediate child custody, child support action call  FLINT DIVORCE ATTORNEY Terry Bankert, 235-1970 area code 810.

The Flint area divorce case discussed is Genesee Circuit Court Divorce Court , Judge Weiss re assigned to Judge Behm , LC No. 07-273592,MOTHER EARLIN FAYE WEBSTER, Plaintiff-Appellee, FATHER CURTIS L. WEBSTER,-DM, Defendant-Appellant.

THIS IS A S T A T E O F M I C H I G A N C O U R T O F A P P E A L S CASE , UNPUBLISHED , December 1, 2009, v No 285848,Before: Borrello, P.J., and Whitbeck and K.F. Kelly, JJ.,PER CURIAM.


Flint divorce attorney Terry Bankert has modified this opinions spacing and added CAP HEADLINES for the purpose of lay understanding and SEO.

Father ,Defendant appeals as of right from a judgment of divorce. For the reasons set forth in


The parties married in 1988 and plaintiff gave birth to the parties’ only child on October

15, 1991.


MOTHER Plaintiff filed her complaint for divorce on March 14, 2007, and then filed an affidavit

and default on June 11, 2007, as a result of defendant’s failure to answer the complaint or appear

in the action. A default was entered on that date. On February 21, 2008, plaintiff filed a motion

to enter a default judgment, and on March 3, 2008, the trial court held a hearing on plaintiff’s



FATHER Defendant appeared at the hearing without counsel, and when questioned by the trial

court as to why he had not hired an attorney, the following exchange occurred:

THE COURT: Why – why did you not get a lawyer?

MR. WEBSTER: Because I wanted it to be done right.

THE COURT: Why did you not file something in here – any – on your own.

MR. WEBSTER: I’m not trying to fight with them, sir. I want things done the

right way. I’m not trying to fight with my wife. I’m not trying to fight with

Ms. attorney Fish [plaintiff’s counsel]. I was told by an attorney that they

wouldn’t defend me because of Ms. Fish in your office – in your court – that

Ms. Fish has an unfair advantage in your court. I’ve been told by an attorney.

THE COURT: Why does she have an unfair advan-

MR. WEBSTER: I don’t know. I’m trying to find that out. And I want to get

to the bottom of it and give me a chance to get an attorney so we can find all

this out.

THE COURT: I’ll adjourn it one week and I’ll allow you to set the Default aside

upon payment of $1,000 in costs.

MR. WEBSTER: On whose part?

THE COURT: You’ll have to pay $1,000 to have the Default set aside.

MS. FISH: Is that to be paid to my office, your Honor?


MS. FISH: Thank you.

MR. WEBSTER: Okay. It sounds about right, attorney.

THE COURT: And I’ll adjourn it one week.

MS. FISH: Thank you, your Honor.

THE COURT: You can have a lawyer and have it set aside. I don’t have to do



THE COURT: You’re – you’re getting’ unfair advantage [sic].

MS. FISH: Thank you.


One week later, on Monday March 10, 2008, attorney David Megdell filed his

appearance as defendant’s counsel and the parties again appeared before the trial court.


Plaintiff’s counsel stated that defendant never paid $1,000 to set aside the default. Defendant’s

counsel stated that he had just spoken to defendant over the weekend and requested a two-week

adjournment to file a motion for reconsideration regarding the $1,000 sum. The trial court

expressed reluctance to waive the payment requirement, stating that if defendant wanted to set

aside the default, he would have to pay for costs because “he sat on this thing for over a year.”

The following colloquy then ensued:

MR. MEGDELL: It’s my understanding, Judge, that he’s at – that he’s tried

to speak to with [sic] Ms. Fish about this case. He doesn’t want the divorce.

But be as it may –

THE COURT: That’s beside the point. A Default was filed and he took no action.

I’m giving him an opportunity to get back in the case but it’s not going on

forever and he needs to – there’s certain conditions for him to set it aside. If

not, I will proceed.

MR. MEGDELL: Well can you adjourn this two weeks for him to uh- try to

raise the money – the $1,000 – so we can uh-proceed with a defense in this

case? Can you adjourn this for two weeks?

THE COURT: Yes, I’ll do that but that’s it. I mean, this lady’s waited and he’s

done nothing. That’s not fair. He’s had opportunities, had notice. He could

have hired you months ago. If he thought it was going to go away by doing

nothing, that’s unreasonable. That’s not fair to her.

* * *

THE COURT: And it’s not going go on – it’s not going to go on. It’s going to be

set for trial immediately.


THE COURT: I mean, I’m not – the court, nor should the uh-Plaintiff in this

matter, be held hostage to his inaction.


On April 23, 2008, the parties filed a stipulation to set aside the default and the trial court

entered an order setting aside the default. Also on the same day, the parties reached a partial

settlement that was placed on the record. The trial court directed the parties to appear at 9:00

a.m. the following morning to resolve the remaining four or five issues. Immediately after the

proceeding began the next morning, the following exchange occurred:


MR. MEGDELL: I’d like to – I would like to make a motion at this time. I

met this morning for a few minutes with my client, Mr. Webster, and um-and

he informed me that he does not want me to represent him and he wants to get

a new lawyer, so I’m asking that I be recused from this case.

THE COURT: Mr. Webster, is that true?

MR. WEBSTER: That’s true, sir.

THE COURT: Well I’m not going to give you time to get another lawyer.

MR. WEBSTER: I’m waiting-I’m waitin’ on a call right now.

THE COURT: Wait a minute. Wait a minute. I’m talking right now. I’m not

giving you time. We’re going to trial this morning. You’re making a serious

mistake by discharging your attorney and I’m not going to let you get another

lawyer because you were in default in this case. I did you a favor by allowing

the default to be set aside. This matter is going to trial this morning and if –

you’re going up against a very experienced lawyer, and if you want to do that

on your own, I will allow you to do that, but I will not allow you time to get

another lawyer. Now you got your choice to go to trial with Mr. Megdell this

morning or go to trial representing yourself.


MR. WEBSTER: I’m going with your wishes, sir.


MR. WEBSTER: I’m going with your wishes. This is your court, sir.

THE COURT: I don’t – my wishes are it’s going to trial. I don’t care how it goes.

I’m just telling you that’s the choice you’ve got to make. We were here all

day yesterday.

MR. WEBSTER: I tried, sir.

THE COURT: We are [sic] here all day yesterday and it’s going to trial this

morning. Now you decide if you want to try it yourself or you want to try it

with Mr. Megdell. I – I get – I strongly recommended yesterday that this

matter get settled. I kept you here all day yesterday. If I had let this thing go

to default, this wouldn’t have been going on. You’d a got none of this. You’d

had no opportunity to discuss it.

MR. MEGDELL: Judge, based upon Mr. Webster’s intentions in this matter

or how he wants me to proceed or what I haven’t done, there’s no way I can

represent him because he refuses to follow my advice and he has a – and I just

do not feel comfortable representing him because I would just be a uh-the

word is uh-


THE COURT: I will allow Mr. Megdell to withdraw. We’ll proceed –

MR. MEGDELL: Thank you, your Honor.

THE COURT: We’ll proceed to trial. You represent yourself.


Following trial, the trial court signed a judgment of divorce (JOD), which was signed by

the court on May 14, 2008, but not entered by the court clerk until May 16, 2008. This appeal



Defendant first argues that he was denied his constitutional right to counsel when the trial

court permitted his attorney to withdraw on the day of trial and refused to adjourn the trial to

enable him to secure new counsel. We review constitutional issues de novo. Wayne Co v

Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004).

Const 1963, art 1, § 13 provides that “[a] suitor in any court of this state has the right to

prosecute or defend his suit, either in his own proper person or by an attorney.” “An attorney

who has entered an appearance may withdraw from the action or be substituted for only with the

consent of the client or by leave of the court.” In re Withdrawal of Attorney, 234 Mich App 421,

431; 594 NW2d 514 (1999).


Defendant argues that he was denied his constitutional right to counsel when the trial

court permitted his attorney to withdraw on the morning of trial despite defendant’s indication

that he wished to proceed with the attorney’s representation. Defendant relies on Bye v

Ferguson, 138 Mich App 196, 200; 360 NW2d 175 (1984), in which the trial court permitted

defense counsel to withdraw on the morning of trial notwithstanding that the defendant failed to

appear at trial and had no notice of his attorney’s withdrawal. This Court held that, regardless of

whether the attorney’s withdrawal because of the defendant’s nonpayment of attorney fees was

justified, the defendant was entitled to notice of the withdrawal. Id. at 206. This Court stated

that although an attorney’s withdrawal does not give a litigant an absolute right to a continuance,

the defendant should have been afforded notice of the withdrawal and an opportunity to obtain

new counsel. Id. at 206-207. Similar to Bye, in Pascoe v Sova, 209 Mich App 297, 300-301;

530 NW2d 781 (1995), this Court reversed the trial court’s denial of the defendant’s motion to

set aside a default judgment based on the defendant’s lack of notice of his attorney’s withdrawal

at the beginning of trial.

In contrast to Bye and Pascoe, the record here shows defendant had notice of his

attorney’s intent to withdraw, and it was defendant’s desire that his counsel be removed from the

case. These factors alone negate defendant’s reliance on Bye and Pascoe as a means for this

Court granting relief. Additionally, the trial court informed defendant that it was not going to

further delay the matter and then gave defendant the option of either proceeding with attorney

Megdell or representing himself. Although defendant contends that he voiced his decision to

proceed with counsel, the record demonstrates that defendant avoided directly answering the trial

court’s question as to whether he wished to proceed with or without counsel by stating” “I’m

going to go with your wishes.”

In Wykoff v Winisky, 9 Mich App 662, 664; 158 NW2d 55 (1968), the defendants’

previous attorney withdrew because of indifferences that resulted in the defendants filing a

grievance against the attorney. The defendants retained new counsel approximately one week

before trial, and, after some discussion of whether the defendants wanted the new attorney to

continue to represent them, the trial court granted a one-day adjournment of trial on the condition

that there would be no further requests for adjournment. Id. at 665-666. At the beginning of trial

the following day, defense counsel moved to withdraw and the defendants requested a

continuance to hire a new attorney. The trial court permitted defense counsel to withdraw and

denied the defendants’ request for a continuance, essentially requiring that they represent

themselves during trial. Id. at 666. This Court affirmed, reasoning that had the defendants acted

with reasonable diligence, they had ample time to obtain counsel in whom they had confidence.

Id. at 668-669. This Court also noted that at a pretrial conference held approximately four

months before trial, one of the defendants indicated an intent to represent himself throughout the

proceedings. Id. at 667-668.


In this case, the record evidences defendant’s dilatory tactics and unwillingness to defend

the action. Defendant initially failed to answer plaintiff’s complaint or take any action after a

default was entered. He waited until plaintiff sought to enter a default judgment, approximately

11 months after she had filed her complaint, to participate in the action. Defendant appeared at a

March 3, 2008, hearing without counsel and claimed that he did not have enough time to hire an

attorney. When asked why he had not hired a lawyer, defendant merely replied, “Because I

wanted it to be done right.” The trial court granted a one-week adjournment and allowed

defendant to set aside the default by paying $1,000 in costs to plaintiff’s counsel.

One week later, defendant still had not paid plaintiff’s counsel $1,000. The trial court

granted a request for a two-week adjournment, noting that such an adjournment was unfair to

plaintiff, who had pursued the action while defendant had “done nothing.” The court indicated

that it would grant no further adjournments. The court stated that the case would proceed to trial

immediately and that neither plaintiff nor the court would “be held hostage to [defendant’s]



The parties appeared on April 23, 2008, and spent the entire day negotiating a partial

settlement that was placed on the record. Before trial on the remaining issues the following

morning, however, defendant indicated that he wanted to hire a new attorney and rescind the

agreement that was reached the previous day. We note that during defense counsel’s first

appearance before the trial court he indicated that his client did not want the divorce action to



When reviewing the record as a whole we are left with the firm conviction that

contrary to defendant being denied his constitutional right to counsel, he engaged in

gamesmanship with the trial court in an effort to forestall the proceedings, including discharging

his counsel on the date and time set for trial. As stated in Wykoff, supra at 670, “when the record

establishes a substantial basis for challenging a litigant’s good faith in preparing for trial, all need

not come to a dead halt until that litigant decides that he is ready to permit the trial to proceed.”

Because the record shows that defendant not only had notice of his attorney’s intent to withdraw

but that defendant sought to dismiss his attorney, defendant was not denied his constitutional

right to counsel. Further, because the record evidences defendant’s dilatory tactics and

gamesmanship, the trial court did not abuse its discretion by proceeding with trial in Megdell’s

absence and denying a continuance. See Bye, supra at 207.

Defendant also contends that the trial court abused its discretion by allowing his attorney

to withdraw on the day of trial. The trial court’s decision was not outside the range of reasonable

and principled outcomes. See Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833 (2008).

As previously discussed, the record establishes that defendant’s desire to dismiss Megdell was

yet another attempt to delay the proceedings.

Defendant next argues that the trial court’s failure to make findings of fact and

conclusions of law regarding child support and spousal support requires reversal. Defendant

contends that the trial court erred by failing to make explicit or implicit findings regarding his

baseline income and, as a result, it is unclear whether the court accepted plaintiff’s or

defendant’s assertion regarding his salary. Hence, defendant does not appeal the amounts

awarded by the trial court but rather the method employed by the trial court to calculate the


Defendant argues that the trial court failed to make explicit or implicit findings in regard

to his income. MCR 2.517(A) provides, in relevant part:

(1) In actions tried on the facts without a jury or with an advisory jury, the

court shall find the facts specially, state separately its conclusions of law, and

direct entry of the appropriate judgment.

(2) Brief, definite, and pertinent findings and conclusions on the contested

matters are sufficient, without overelaboration of detail or particularization of


(3) The court may state the findings and conclusions on the record or

include them in a written opinion. [Emphasis added.]

Although the trial court did not articulate its findings regarding defendant’s income on

the record following trial, it did so in the judgment of divorce, which states, “[Child] Support is

based on Plaintiff’s average net monthly income of $1,520.67 and Defendant’s average net

monthly unemployment and strike pay of $2,557.02 and then, his ability to earn an average net

monthly income of $4,640.45.” Pursuant to MCR 2.517(A)(3), the trial court was permitted to

state its findings of fact in a written opinion.

Further, regarding spousal support, the trial court recognized in its findings of fact on the

record that the parties’ disparity in income was extreme and that the marriage had lasted 20

years. The court further stated that plaintiff was in good health and should be afforded an

opportunity to further her education and seek new employment. These findings are sufficient to

satisfy MCR 2.517(A)(2) with respect to spousal support.

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

/s/ Stephen L. Borrello , /s/ William C. Whitbeck, /s/ Kirsten Frank Kelly

posted here by

Terry Bankert 06/01/2010

Divorce Lawyer




1 comment:

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