Al, Tipper Gore Divorce, Boomers , Oakland County Divorce presented by Flint Divorce Lawyer Terry Bankert 235-1970

Recently a higher court reviewed the Oakland Circuit Divorce Court in its Family Division, LC No. 2007-741418-DM.The Divorcing husband said Oakland Divorce Court gave wife too much property. Flint Divorce attorney Terry Bankert presents this opinion. For questions or immediate help contact Divorce Lawyer  Terry Bankert at 235-1970, area 810 Assets are always a question in divorce especially with older parties like Al Gore and Tipper Gore for instance.






AL,TIPPER GORE SPLIT PUTS FOCUS ON LATE-STAGE DIVORCES.[a]



Divorce attorneys and relationship counselors around the country say they've been seeing more "late-stage" divorces among Baby Boomers. And it's not because the kids have grown up and moved out.[a]



OLDER DIVORCING BOOMERS HAVE ASSETS TO DIVIDE



"It's the whole phenomenon of living longer, of having sex longer, of being healthier, oftentimes of being wealthier and feeling that they can easily pursue a no-fault divorce," says divorce lawyer John Mayoue of Atlanta. "I think we're seeing persons in long marriages questioning whether in fact there's a better life out there."[a]



The Gores knew as much. In their 2003 book, "Joined at the Heart," -- see how seriously they took this endeavor? They wrote a book about it! -- the Gores explored the way a prolonged life expectancy could affect American unions. "If couples are in unhappy marriages they are more likely to eventually divorce as they face so much of their lifetimes together after their child-rearing years are over," they wrote. [b]



AN OAKLAND COUNTY DIVORCE LOOKING AT SEVERAL ASSET ISSUES.



The higher court was the S T A T E O F M I C H I G A N C O U R T O F A P P E A L S. May 18, 2010 v No. 289740, , UNPUBLISHED





The Parties were BRIAN DAVID SKINNER, Defendant-Appellant. LAURA ANNE SKINNER, Plaintiff-Appellee



HUSBAND APPEALS THE JUDGEMENT OF DIVORCE



Defendant appeals as of right a judgment of divorce. THE MICHIGAN COURT OF APPEALS affirm, AGREE WITH THE OAKLAND DIVORCE COURT.



This court of appeals opinion was been altered by spacing and Cap headlines for lay clarity and SEO. Other citations will appear as [].

PRE MARITAL 401 K CONTRIBUTION AT ISSUE

Defendant first argues on appeal that the trial court erred in including the appreciation on

his premarital contribution to his 401(k) account in the marital estate.1



We THE MICHIGAN COURT OF APPEALS disagree.



WAS THERE CLEAR ERROR?



In a divorce action, this Court reviews the trial court’s factual findings, including whether

a particular asset constitutes marital or separate property, for clear error. Sparks v Sparks, 440

Mich 141, 151; 485 NW2d 893 (1992).



A FACTUAL FINDING REVIEW FIRST



A factual finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made upon reviewing the entire record. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).



2ND WAS THE RULING FAIR BASED UPON THE FACTS



If the trial court’s factual findings are upheld, then this Court “must decide whether the dispositive ruling

was fair and equitable in light of those facts.” McNamara v Horner (After Remand), 255 Mich

App 667, 670; 662 NW2d 436 (2003).



WAS IT INEQUITABLE



“A dispositional ruling is discretionary and should be affirmed unless this Court is left with the firm conviction that the division was inequitable.” Id.



IS APPRECIATION PART OF THE MARITAL ESTATE?YES



A premarital asset’s appreciation is considered part of the marital estate “[w]hen one

[spouse] significantly assists in the acquisition or growth of [the other] spouse’s separate asset . .

. .” Reeves v Reeves, 226 Mich App 490, 495; 575 NW2d 1 (1997).



BUT THE APPRECIATION MUST BE ACTIVE



In contrast, a premarital asset’s appreciation should not be considered part of the marital estate if the appreciation is due to “wholly passive” appreciation.



See id. at 497.



WHAT IS PASSIVE APPRECIATION



A premarital asset increases in value by wholly passive appreciation when there is no addition of capital or active management during the marriage. See Dart v Dart, 460 Mich 573, 585 n 6; 597 NW2d 82 (1999).



HOW WERE THE INVESTMENTS MANAGED?



In Reeves, 226 Mich App at 495-498, this Court held that the marital estate included the

appreciation in value of the husband’s separate assets that he actively managed during the

marriage, but not the appreciation on his passive investments.



MOM TOOK CARE OF HOUSE DAD HAD TILE TO CARE FOR BUSINESS AND THE STOCKS WENT UP. MOM HAS AN INTEREST.



Similarly in Hanaway v. Hanaway, 208 Mich App 278, 293-294; 527 NW2d 792 (1995), this Court held that the marital estate included appreciation in stocks the defendant received from his family’s company because the plaintiff’s domestic efforts in managing the household and child raising allowed the

defendant to concentrate on building up the family company, which increased the stock value.



WHAT IF PRE MARITAL CONTRIBUTIONS WERE MADE.

In McNamara v Horner, 249 Mich App 177, 180-182; 642 NW2d 385 (2002), after

remand 255 Mich App 667 (2003), the parties had separate Michigan Credit Union retirement

funds and Mutual of America tax-deferred annuities (TDAs), which the trial court included in the

marital estate.2 The defendant appealed the trial court’s inclusion of the entire appreciation of

the parties’ retirement plans in the martial estate, arguing that because each party had made

premarital contributions to their own accounts, each party was entitled to have part of the

appreciation from the accounts excluded from the marital estate. Id. at 183-184.





This Court affirmed the trial court, holding that the appreciation in the value of the parties’ premarital

contributions was not because of a wholly passive investment. Id. at 184-185. After they

married, the parties contributed a percentage of their income to the retirement accounts and equal

amounts to the TDAs. Id. at 184. The parties’ premarital funds were thus commingled with

marital assets. Id. This Court found that the premarital assets in the retirement accounts and

TDAs did not increase in value because of wholly passive appreciation, but rather, because of the

additional contributions of martial assets as well as appreciation. Id. The Court held that the

parties’ commingling of premarital and marital assets made it impossible to accurately determine

the premarital appreciation of the assets, and thus, affirmed the trial court’s including the entire

appreciation amount in the retirement funds and TDAs as part of the marital estate. Id. at 184-

185.



Defendant argues that his case is distinguishable from McNamara, because he provided

the trial court with mathematically sound and uncontested formulas to determine the

appreciation on his $14,300 premarital contribution. However, because defendant’s premarital

contribution was commingled with approximately $150,000 in marital funds over the course of

some 23 years, any meaningful determination as to how much appreciation could be fairly

attributed to either the original balance or the contributions during the marriage is impossible,

defendant’s suggested interest calculations notwithstanding. Defendant further argues that the

increase in value of the 401(k) account was due to wholly passive appreciation because he was

only able to select mutual fund investments from a menu and was not active in the selection or





performance of the investments made by the mutual fund director. Although defendant did not

actively manage the investment decisions, the parties’ regular contributions of marital assets to

the 401(k) account throughout the marriage were a significant activity, and thus, the appreciation

in the 401(k) account was not wholly passive. See id. at 184-185. Consequently, it was not clear

error for the trial court to find that only defendant’s original balance was a separate asset.

The trial court’s dispositive ruling to deny defendant appreciation on premarital funds

was fair and equitable in light of the facts. Both parties contributed to the 401(k) account in that

plaintiff maintained the household and cared for the couple’s four children while defendant

generated the income needed to support the family. Marital assets funded the majority of the

401(k) account and the appreciation derived from the 401(k) account was to be for the mutual

benefit of both parties upon defendant’s retirement. The trial court gave defendant his premarital

principal contribution of $14,300 and ordered the remainder of the Fidelity fund to be equally

divided. Under these circumstances, the trial court did not err by concluding that it would not

benefit defendant with appreciation on the premarital portion of the 401(k) account.

Defendant next argues that the trial court’s valuation of the Fidelity IRA account (the

rollover of the 401(k) account) was clearly erroneous and that the trial court’s dispositional

ruling was inequitable. We disagree.





“For purposes of dividing property, marital assets are typically valued at the time of trial

or at the time judgment is entered.” Byington v Byington, 224 Mich App 103, 114 n 4; 568

NW2d 141 (1997). “[T]he court may, in its discretion, use a different date.” Id. We review the

trial court’s decision regarding the time of valuation for an abuse of discretion. Gates v Gates,

256 Mich App 420, 427; 664 NW2d 231 (2003).



At the September 2, 2008, trial in this case the parties stipulated that August 31, 2008

would be the valuation date for the various assets, including the Fidelity IRA account. On

August 31, 2008, the Fidelity IRA account was valued at $486,945.40. Due to deteriorating

economic conditions, by the time of the entry of judgment on December 10, 2008, the Fidelity

IRA account had diminished in value to $330,000, according to defendant. Citing language in

the trial court’s November 17, 2008, opinion and order, in which it held that “ . . . the parties will

divide the balance [of the Fidelity IRA account] equally,”3 defendant requested that the trial

court divide the remaining funds according to the account’s value as of the date of the final

order. Relying on the parties’ prior stipulation and noting that the delay between trial and entry

of a final judgment was not the fault of the court, the trial court denied defendant’s request. On

appeal, defendant claims that he did not stipulate to one-half of the August 31, 2008, valuation of

the Fidelity IRA account, but only that the parties would equally divide the assets after deducting

defendant’s premarital portion and any appreciation on the premarital portion as awarded by the

3 It should be noted that the November 17, 2008, opinion and order also references and attaches

what the trial court named “the August 31, 2008 Stipulation,” which was signed by the parties on

August 31, 2008, amended on the record on September 2, 2008, and which identifies the parties’

stipulations regarding premarital and marital assets and their values.



Defendant argues that the trial court’s reliance on the valuation of the assets as of August

31, 2008, was grossly unfair and has resulted in an obviously inequitable result.

During the September 2, 2008, trial, the court sought the parties’ agreement as to a

valuation date for asset distribution purposes. Pertinent portions of the trial transcript provide as

follows:



The Court. All right. When are you going to sit down and stipulate to the

values that you can stipulate to?

Defense Counsel. Well, I suggested that during our discussions today that we

take the stipulated facts, just the last two pages, which were the assets and

give the Court those which would have those stipulations and [plaintiff’s

counsel] refused.

The Court. Why is that—

Plaintiff’s Counsel. I agreed, not at all—

The Court. You did agree? Well, okay, then give it to me.

Plaintiff’s Counsel. Of course.

* * *

The Court. Okay. But see, for my purposes I have to know what date I’m

going to value these things because otherwise I’ll enter—I’ll do an opinion

and you’ll tell me, well wait a minute, those accounts have changed. Or

maybe you’re going to say to me I wanted to use the date as of the complaint

of divorce. I want to know if you’ve agreed on a date?

Defense Counsel. These are all—

Plaintiff’s Counsel. We agree on the last of August, which would be—

The Court. The accounts as of 8/31/08?

Plaintiff’s Counsel. Yes.

The Court. Okay.

Plaintiff’s Counsel. I’ll put that on here [“the August 31, 2008 Stipulation”].

Defense Counsel. Again, that’s the stipulation she was—we sent them back

over to her last week with those numbers and they’re marginally, they’re—

they’re—a lot of them are mutual funds and that account is a moving target.

The Court. That’s right, so that’s why I need a date. And I—you have just

told me that you’re going to agree to a valuation date of 8/31/08.

-5-

Defense Counsel. That’s fine.

“A party cannot stipulate a matter and then argue on appeal that the resultant action was

error.” Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001). See also

Bonkowski v Allstate Ins Co, 281 Mich App 154, 168; 761 NW2d 784 (2008) (“A party may not

waive objection to an issue and then argue on appeal that the resultant action was error.”). As set

forth above, before agreeing to the stipulation, defense counsel noted that some of the assets

were mutual funds that fluctuated in value.



The trial court stated that was why a stipulation date regarding the value of the assets was needed.



The parties then stipulated to a valuation date of August 31, 2008



Therefore, this issue is waived. Even if defendant had not waived this issue,

the trial court acted equitably in seeking the parties’ stipulation regarding, and holding to, a fixed

date for valuation of the assets so that there would be no confusion or additional posturing with

respect to any upward or downward swings in the marketplace.4 Had the stock market risen after

August 31, 2008, plaintiff would not have been entitled to seek a different valuation date;

likewise, in the event of an economic decline, defendant was prevented from seeking a different

valuation date. Given the volatility of the market at that time and yet today, selecting exactly

what date would be proper under either circumstance would be difficult. While it is extremely

unfortunate that the market deteriorated as quickly and as unforeseeably as it did, we do not find

that the trial court abused its discretion in sticking to the parties’ agreed upon valuation date.

Affirmed. By judges , Patrick M. Meter, Christopher M. Murray, Jane M. Beckering



Posted here by

Flint Divorce Attorney Terry Bankert.

http://attorneybankert.com/

Or

http://dumpmyspouse.com/





FOOTNOTE

1 The 401(k) account has since been rolled over into a Fidelity IRA account because defendant

retired from Ford Motor Company.

2 The Court noted that the trial court properly removed from the marital estate each party’s

premarital contributions to their respective retirement and TDA accounts as part of the stipulated

premarital assets. Id. at 185 n 5.



4 The parties could have agreed that the asset valuation date would be the date judgment was

entered, but they chose August 31, 2008, which was essentially the time of trial

[a]

http://www.usatoday.com/news/health/2010-06-03-gore03_ST_N.htm

[b]

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/02/AR2010060202373.html

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

GENESEE COUNTY FATHER IN FLINT AREA DIVORCE WANTS RELIEF FROM A JUDGEMENT OF DIVORCE


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.


YOU CANNOT DRAG OUT A DIVORCE FOR EVER.

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
this opinion, we THE MICHIGAN COURT OF APPEALS, affirm THE JUDGEMENT OF THE GENESEE COUNTY COURT.

MARRAIGE 1988

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

15, 1991.

MOTHER FILED FOR DIVORCE 2007 FATHER WAS DEFAULTED, HE LOSES

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

motion.

FATHER APPEARED AT DEFAULT HEARING

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?

THE COURT: Yes.

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

that.

MR. WEBSTER: Well –

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

MS. FISH: Thank you.

FATHER GETS ATTORNEY

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.

MOM SAYS DAD DID NOT PAY THE $1,000

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.

MR. MEGDELL: Okay.

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

matter, be held hostage to his inaction.



MOM AND DAD THEN AGREED TO SET ASIDE THE DEFAULT

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:

DAD WANTS TO GET RID OF HIS ATTORNEY ON THE TRIAL DATE

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.



DAD KEEPS HIS ATTORNEY



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

THE COURT: Huh?

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-

JUDGE LETS THE ATTORNEY OUT AND WANTS TRIAL

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.

DAD REPRESENTED HIMSELF

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

ensued.

FATHER APPEALED

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).

DENIED CONSTITUTIONAL RIGHTS

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.

DAD WAS DILATORY

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]

inaction.”

PARTIES NEGOTIATED A PARTIAL SETTLEMENT

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

proceed.

DAD WAS GAMING THE COURT



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

amounts.

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

facts.

(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

http://attorneybankert.com/

and

http://dumpmyspouse.com/