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The higher court was the S T A T E O F M I C H I G A N C O U R T O F A P P E A L S. May 18, 2010 v No. 289740, , UNPUBLISHED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
Wednesday, June 02, 2010
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
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/
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/
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