MICHIGAN FAMILY LAW ADVOCATE

DNA MAY PROVE YOU TO BE THE FATHER BUT DOES NOT GUARANTEE CONTACT WITH YOUR CHILD.

2011-12-18T06:47:00.001-05:00

GOOD MORNING FLINT!

Date12/18/2011

By Flint Divorce Bankruptcy Attorney Terry Bankert. Downtown Flint Lawyer 235-1970 http://www.attorneybankert.com/

FLINT OR MICHIGAN FATHERS CHILD CUSTODY AND PARENTING TIME RIGHTS

Michigan Child Custody and Parenting time Law keeps Matt Dykema from seeing his young daughter and having child custody and parenting time, he cannot be the father that DNA says he is.[see 1]
http://goodmorningflint.blogspot.com/

FATHERS HAVE A VARIETY OF PRESSURES WHEN THEY TRY TO SEE THEIR CHILDREN

FOR INSTANCE - Kate Gosselin shares custody of her eight kids with their father Jon Gosselin . While a divorce can be messy, it is always encouraging when the parents find a new partner who is willing to, not only accept them, but also their children. Apparently Jon has found that and if a new report is to be believed, Kate is slightly jealous that her kids have taken so well to his girlfriend.[4]

IT JUST FEELS HORRIBLE AND UNFAIR THAT A CHIULD DOES NOT GET TO KNOW THEIR BIOLOGICAL FATHER IF HE STEPS FORWARD UNDER MICHIGAN LAW!

Good Morning Flint! is the daily blog of Flint Divorce lawyer Flint Bankruptcy Attorney Terry Ray Bankert 810-235-1970 If you have legal question call or contact through http://www.attorneybankert.com/

Under Flint Divorce and Michigan divorce and child custody Law today the current husband is presumed by the law to be the “father” of a child when the married party may not have had contact for years. Is that fair?

The Biological Flint or Michigan father can not even get his case heard in a Michigan Family Law Court. The plaintiff must allege that the child was born out of wedlock. Girard v Wagenmaker, 437 Mich 231, 470 NW2d 372 (1991). This requirement frequently creates a problem of standing if a man seeks to establish his paternity when the mother was married to another person during any part of the pregnancy.[2]

see here; http://goodmorningflint.blogspot.com/2011/12/did-you-know-that-if-dna-shows-you-to.html

WHAT IF DNA PROVES HE IS THE FATHER

A DNA test proves Matt Dykema is the girl's father, but the baby's mother was married to another man when the child was born. The two have since divorced.[1]

CHILD BORN IN THE MARRIAGE IS OF THE MARRIAGE

News articles say that A 1956 Michigan law says a child born during a marriage is a product of the marriage. Judges follow that law when deciding custody issues. It gives the ex-husband more rights than the biological father.[1]

More specifically the rights of a biologoical father not married to the mother to see the child do not exist in Michigan. The Child Custody Act of 1970, MCL 722.21 et seq., is no longer used to determine paternity. A putative father may not seek custody or parenting time under the Child Custody Act unless there is first an acknowledgment of paternity or an order of filiation under the Paternity Act. Hoshowski v Genaw, 230 Mich App 498, 584 NW2d 368 (1998); Afshar v Zamarron, 209 Mich App 86, 530 NW2d 490 (1995).[2]

DID YOU KNOW -In divorce proceedings, the general rule in Michigan is that the court does not have the power to litigate the rights of persons other than the husband and the wife. Yedinak v Yedinak, 383 Mich 409, 175 NW2d 706 (1970). In addition, the authority of the court is purely statutory, Flynn v Flynn, 367 Mich 625, 116 NW2d 907 (1962), and no statute provides for determination of the paternity of a third party as part of a divorce action, Pruitt v Pruitt, 90 Mich App 230, 282 NW2d 785 (1979). However, the court may determine the paternity of the husband during such a proceeding. Serafin v Serafin, 401 Mich 629, 258 NW2d 461 (1977); Atkinson v Atkinson, 160 Mich App 601, 408 NW2d 516 (1987). A court must have in personam jurisdiction over the husband to make a paternity determination pursuant to a divorce decree. Gonzales v Gonzales, 117 Mich App 110, 323 NW2d 614 (1982).[3]

MICHIGAN PRESUMES THE CHILD TO BE OF THE HUSBAND AND KEEPS ALLEGED BIOLOGICAL FATHERS OUT.

According to statute and caselaw, there is a strong presumption that any child conceived or born to a married couple before commencement of a suit for divorce is legitimate; this presumption may be rebutted only by clear and convincing evidence. Raleigh v Watkins, 97 Mich App 258, 293 NW2d 789 (1980); Johnson v Johnson, 93 Mich App 415, 286 NW2d 886 (1979). Michigan courts allow a husband and wife to testify regarding a child’s paternity. Serafin. [3]

A finding of fact in a divorce decree that a child was born of the parties’ marriage establishes the child’s paternity. Hackley v Hackley, 426 Mich 582, 395 NW2d 906 (1986). Once a child is determined to be a child of the marriage in a divorce judgment, the doctrine of res judicata bars relitigation of paternity, even if the issue was not contested in the divorce. In re Cook Estate, 155 Mich App 604, 400 NW2d 695 (1986). In Cook, a mother whose deceased child was declared to be a child of the marriage in the divorce judgment was barred from asserting in a subsequent proceeding that her former husband was not the child’s biological father. In Rucinski v Rucinski, 172 Mich App 20, 431 NW2d 241 (1988), a father’s attempt to deny paternity of a child born during a marriage that ended in divorce was barred by res judicata. Since he had not denied paternity during the divorce proceedings, the divorce judgment and support order constituted an adjudication of paternity.[3]

IN DYKEMA MOM THEN DIVORCED AFTER THE BIRTH, EX HUSBAND WILL NOT GIVE UP HIS RIGHTS.

Matt Dykema and his attorney have requested the woman's ex-husband relinquish his rights but, so far, he has refused. It has Dykema and his Muskegon attorney Chris Houghtaling looking to Lansing for help -- and they might get it.[1]

BILL PENDING TO GIVE BIOLOGICAL FATHER RIGHTS

In December, the Michigan Senate unanimously approved four bills that would update the old law. It's the work of Senator Rick Jones, a Republican from Eaton Rapids. [1]

JUDGES TO HAVE MORE FLEXIBILITY

Jones says his legislation would allow judges more flexibility to hear and rule on cases like the one in Ottawa County, ultimately allowing them to make decisions based on what's best for the children.[1]

LEGISLATURE TO ARGUE ISSUE IN 2012

The House Judiciary Committee is expected to take up the bills in 2012. [1]

WHAT THE FATHER NEEDS IS AN ORDER OF PATERNITY

The stated purposes of the Michigan Paternity Act (Paternity Act), MCL 722.711 et seq., are to confer on circuit courts jurisdiction over proceedings to compel and provide support of children born out of wedlock; to prescribe the procedure for determining such liability; to authorize agreements for furnishing such support and to provide for enforcement; and to prescribe penalties for the violation of certain provisions of the Paternity Act. Most paternity actions in Michigan are brought under the Paternity Act. If paternity is not voluntarily established, the party seeking a finding of paternity must file suit in the family division of the circuit court. The mother, the alleged father, or the Department of Human Services (DHS) may bring the action. Genetic testing is available as a valuable and objective means of resolving paternity cases before trial. If a determination of paternity is made, the court must enter an order of filiation. The order of filiation must provide for the support of the child, reimbursement of the medical expenses incurred in the child’s birth, health care insurance coverage when it can be obtained at a reasonable cost, and support for the period before the order was entered.[2]

The purpose of the Paternity Act is to provide for support of children born out of wedlock. Van Laar v Rozema, 94 Mich App 619, 288 NW2d 667 (1980); Tuer v Niedoliwka, 92 Mich App 694, 285 NW2d 424 (1979); Smith v Robbins, 91 Mich App 284, 283 NW2d 725 (1979); Boyles v Brown, 69 Mich App 480, 245 NW2d 100 (1976). The act confers jurisdiction on the circuit courts to compel and provide support for children born out of wedlock, to set forth procedures to determine liability, to authorize agreements providing for support and enforcement of such agreements, and to prescribe penalties for violation of certain provisions of the act. MCL 722.711 et seq.[2]

722.714 Paternity proceeding; parties; venue; action not required; commencement of action; statute of limitations; initiating and conducting proceedings; utilization of child support formula; verification of complaint; charge; summons; default judgment; genetic paternity testing; next friend or guardian ad litem; rights of indigent defendant; order of filiation.

SOURCES THIS ARTICLE

[1]
http://www.wzzm13.com/news/article/190315/2/Biological-father-seeks-help-gaining-parental-rights

[2]

Michgian Family Law ch 21 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at

http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=21

llast updated 12/09/2011

[3]

http://www.legislature.mi.gov/(S(0sju2nu33jxa5145ihib0x55))/mileg.aspx?page=getobject&objectname=mcl-722-714

[4]

http://celebs.gather.com/viewArticle.action?articleId=281474980922294

FLINT CUSTODY LAWYER 810-235-1070 POSTS ,DAD HAD CUSTODIAL ENVIRONMENT OF CHILD BEFORE JAIL, AND AFTER JAIL HE MAY GET CUSTOY NOW.

2011-04-19T11:20:00.002-05:00

Issues presented by Flint Divorce Lawyer Terry R. Bankert 810-235-1970:

1.Custody;

2.Whether an "established custodial environment" (ECE) existed with the plaintiff-father; MCL 722.27(1)(c); Berger v. Berger; An established custodial environment exists if

over an appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
considered. [MCL 722.27(1)©).]

“An established custodial environment is one of significant duration in which a parent provides
care, discipline, love, guidance, and attention that is appropriate to the age and individual needs
of the child.” Berger, 277 Mich App at 706. If an established custodial environment exists with
one parent or with both parents, a trial court may not change the custodial environment unless
there is clear and convincing evidence that a change in the custodial environment is in the child’s
best interests. MCL 722.27(1)(c); In re AP, 283 Mich App 574, 601-602; 770 NW2d 403
(2009). However, if no established custodial environment exists, the trial court may change
custody or enter a custody order if a preponderance of the evidence establishes that the change
serves the child’s best interests. Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345
(2009), aff’d 486 Mich 81 (2010).

3.Consideration of the reasons behind the custodial environment; Treutle v. Treutle;

Because an established custodial environment existed with plaintiff at the time of trial,
the trial court could only change the custodial environment if there was clear and convincing
evidence that such a change was in the children’s best interest. MCL 722.27(1)(c); In re AP, 283
Mich App at 601. The trial court’s use of the preponderance of the evidence standard,
appropriate only where there is no established custodial environment, Pierron, 282 Mich App at
245, was clear legal error. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889 (1994).

4.Use of the preponderance of the evidence standard; In re AP; Pierron v. Pierron; Fletcher v. Fletcher;

5.The trial court's findings on statutory "best interest" factors (c) & (f); MCL 722.23; Corporan v. Henton

—SOURCE

CASE: Court: Michigan Court of Appeals (Unpublished 03/22/2011),Case Name: LXXXX (DAD PLAINTIFF)v. CXXXXXXX (MOM DEFENDANT), e-Journal Number: 48441,Judge(s): Per Curiam – Shapiro, Hoekstra, and Talbot No. 298058, DIVORCE Gladwin Circuit Court, LC No. 2009-004709-DS, Flint Divorce Attorney Terry R. Bankert 810-235-1970 comments CAP’S or citer [trb] See: http://www.attorneybankert.com/

—FACTS AND LAW

FACT SUMMARY OF THIS CASE :The court held that the trial court used the wrong standard in deciding the plaintiff-father's custody request because its finding that the children did not have anESTABLISHED CUSTODIAL ENVIRONMENT ( ECE) with him was against the great weight of the evidence. Thus, the court, MICHIGAN COURT OF APPEALS, reversed the GLADWIN trial court's order awarding plaintiff and the defendant-mother joint legal custody and defendant sole physical custody of the parties' children, and remanded.

DOMESTIC CASE OVER VIEW

WHAT HAPPENS WHEN THE COURT FINDS THERE IS NO CUSTODIAL ENVIRONMENT?

The GLADWIN trial court found that an ECE did not exist with either party.

COURT REVIEWED TWO TIME PERIODS

The trial court divided its custodial environment analysis into two time periods -

BEFORE FATHERS INCARCERATION

(1) from 6/08 to 7/09, the period before plaintiff's incarceration when he, defendant, and the children primarily resided in one household and

AFTER FATHERS INCARCERATION

(2) from 7/09 to the time of trial, the period after plaintiff's incarceration when he and the children lived together and defendant lived in another city.

GLADWIN FOUND BEFORE INCARCERATION MOM HAD ECE

The trial court found an ECE existed with defendant before plaintiff's incarceration, and this ECE was extinguished after his incarceration.

DAD NEVER HAD ECE SO PREPONDERENCE USED

The trial court concluded that an ECE never existed with plaintiff and thus, used the preponderance of the evidence standard to determine the children's custody.

COURT RELIED ON THESE FCATS AS PRESENTED

As to time period (1), the court concluded that defendant's testimony was that both she and plaintiff provided the "day-to-day care" for the children. Plaintiff testified that he primarily took care of them, giving them baths, cooking them dinner, taking them to the doctor, doing their laundry, buying them clothes, and playing with them. Plaintiff testified that during the parties' August-February separation period, the children lived with him four to five days a week. Defendant indicated that during that period, she had the children every other day during the week and every other weekend.

COURT OF APPEALS VS GLADWIN COURT DIFFERENCE IN CONCLUSION

Based on the parties' testimony about time period (1), the MICHIGAN COURT OF APPEALS court held that the GLADWIN trial court's finding that an ECE existed with defendant but not with plaintiff was against the great weight of the evidence.

MICHIGABN COURT OF APPEALS RELIED ON THE FOLLOWING

As to time period (2), the testimony showed that plaintiff lived with the children and his mother while defendant lived in another city. Plaintiff testified that he had no problems raising the children in defendant's absence. He continued to cook for them, do their laundry, and get them ready for school. They participated in school and outdoor recreational activities together, and he took them to medical appointments. Defendant saw the children much less frequently than plaintiff during this period.

DAD HAD ECE EXCEPT DURING INCARCERATION

The court concluded that in making its findings as to time period (2), "the trial court improperly concerned itself with the reasons behind the custodial environment." Without considering the reasons behind the custodial environment, the court held that the evidence showed that an ECE existed with plaintiff. Except during his incarceration (when the children were primarily cared for by his mother), "plaintiff consistently provided the care, discipline, love, guidance, and attention that the children required."

---END FAMILY LAW DISCUSSION
If you have questions about bankruptcy see http://www.nojokebeingbroke.com/

DIVORCE FLINT ,GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970

2011-04-14T06:22:00.000-05:00

DIVORCE FLINT ,GENESEE DIVORCE FLINT DIVORCE LAWYER,ATTORNEY TERRY BANKERT (810)-235-1970

TODAY THE KEYWORDS FOR A RESPONSIBLE DIVORCE ARE “HOW TO FILE FOR DIVORCE IN MICHIGAN”

FILING FOR A DIVORC E

Initial filings. §§1.7–1.10.

The initial filing for a divorce without children includes a summons, a complaint, filing fees, and a record of divorce or annulment (some counties require filing at the time of entry of the judgment).

GENESEE COUNTY IN FLINT FRIEND OF THE COURT GETS A COPY OF YOUR DIVORCE FILING

If there are minor children or a request for spousal support, a verified statement must be served on the other party and provided to the Friend of the Court.

KIDS IN DIVORCE

The initial filing for a divorce with minor children must also include information about custody proceedings and the names and birth dates of the minor children.

DIVORCING COMPLAINT

The complaint must include the following:

The statutory grounds for divorce, without further explanation.

The parties’ complete names and their names before marriage.

Residency information.

Whether a party is pregnant.

The required case caption language (see §1.8).

Whether there are minor children of the parties or minor children born during the marriage.

The complete names and birth dates of any minors involved in the action, including minor children of the parties and all children born during the marriage.

Whether there is property to be divided.

If a request for protection of property is made, facts sufficient to support the relief requested.

If spousal support is requested, a showing of the need for support and the other party’s ability to pay.

If there are minors or a request for child support, whether any Michigan court has continuing jurisdiction over the minor and, if so, the court and file number.

If custody of a minor is to be determined, the following must be included in the complaint or in an attached affidavit: (1) the child’s present address, (2) places where the child has lived within the last five years, (3) names and present addresses of persons with whom the child has lived during that period, (4) whether the party has participated in other litigation concerning the custody of the child in Michigan or elsewhere, (5) whether the party knows of a proceeding that could affect the current child custody proceeding, and (6) whether the party knows of a person who is not a party to the proceedings who has physical custody of the child or claims custody or parenting time rights.

Filing fees may be waived. Fees and costs must be waived or suspended for persons receiving public assistance and indigent persons. The judge may hold a hearing to determine if the person is indigent. If the affidavit of indigency is not disputed, the waiver is mandatory.

Service. §§1.13–1.15.

Service is as provided in the general rules for service, with a copy to the Friend of the Court if there are minor children, a party is pregnant, or support is requested.

If there is a nonresident defendant and jurisdiction is under the long-arm statute, service is made as on a resident defendant. If jurisdiction is acquired by personal service with an order for appearance and publication, specific proofs are required (see §1.13).

Requirements for alternative service—see §1.14.

Requirements when a spouse is in the armed services—see §1.16.

If you have family law/divorce question call for a free consultation Attorney Terry Bankert 235-1970 or reach him through http://www.attorneybankert.com/

FAMILY IN ECONOMIC DISTRESS try his informational site http://www.nojokebeingbroke.com/
if you have bankruptcy questions.

Principal source

Michigan Family Law Benchbook ch 1 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=01
(last updated 04/01/2011

FLINT DIVORCE ATTORNEY,FLINT DIVORCE LAWYER POST ON PROPERTY SETTLEMENT, Terry R. Bankert 810-235-1970

2011-04-08T04:46:00.000-05:00

FLINT DIVORCE ATTORNEY,FLINT DIVORCE LAWYER POST ON PROPERTY SETTLEMENT, Terry R. Bankert 810-235-1970

MOM GETS PRIMARY PHYSICAL CUSTODY?

The APPELLATE court held that the DIVORCE trial court did not err in its division of the parties' real and personal property and its award of primary physical custody of the parties' child to the plaintiff-wife.

Issues PRESENTED HERE:

A.Divorce;

B.The trial court's findings of fact; McDougal v. McDougal; Draggoo v. Draggoo; Holmes v. Holmes;

C.Binding effect of property settlements reached through negotiations and agreement by the parties; Keyser v. Keyser;

D.Abandoned issue; MCR 7.212(C)(7); McIntosh v. McIntosh; Custody; Berger v. Berger; Stipulation; Dick v. Dick

__________________________________________/

SOURCE Court: Michigan Court of Appeals ,Case Name: TXXXXX v. TXXXXX,e-Journal Number: 48366,Judge(s): Per Curiam – Gleicher, Whitbeck, and Owens UNPUBLISHED March 15, 2011, No. 296949,Allegan Circuit Court, LC No. 07-042486-DM.

__________________________________________/

HUSBAND TELLS THE COURT YHEY DID NOT DO IT RIGHT

The defendant-husband challenged the trial court's disposition of the parties' personal and real property, arguing, inter alia, that the trial court failed to find and take into account when disposing of the martial property that plaintiff did not maintain the status quo and the trial court erred in giving plaintiff the property adjacent to the marital residence.

________________________________________/

This article posted by Flint Divorce Attorney Terry R. Bankert 810-235-1970. Article has been modified and written in SEO format. Posters comments in CAP or cited [trb]. Questions contact http://www.attorneybankert.com/

________________________________________/

DIVIDED PROPERTY SHOULD BE EQUAL!

He also contended that the trial court's division of marital personal property was not equal, and the trial court's disposition of the parties' personal property was erroneous because plaintiff's personal property appraisal was improper.

IT WAS AN AGREEMENT?

However, the parties stipulated on the record that they had reached a settlement regarding the division of their real and personal property.

PARTIES EACH HAD DIVORCE ATTORNEYS

Defendant was represented by counsel and indicated that he understood and agreed to the settlement.

DIVORCE COURT JUDGE INCORPORATRED THEIR AGREEMENT?

The trial court's judgment of divorce was consistent with the parties' agreement. Defendant did not allege, and the record did not indicate, the presence of fraud, duress, mutual mistake, or severe stress.

YOU CANNOT HAVE YOUR CAKE AND EAT IT TOO!

He could not stipulate to the division of property and now argue to the court that the ensuing property disposition was erroneous.

THE MICHIGAN COURT OF APPEALS SAID

“A party may not take a position in the trial court and subsequently seek redress in an

appellate court that is based on a position contrary to that taken in the trial court.” Holmes v Holmes, 281 Mich App 575, 587-588; 760 NW2d 300 (2008). Moreover, “[a] party cannot stipulate a matter and then argue on appeal that the resultant action was error.” Id. at 588. “[C]ourts are bound by property settlements reached through negotiations and agreement by parties to a divorce action, in the absence of fraud, duress, mutual mistake, or severe stress which prevented a party from understanding in a reasonable manner the nature and effect of the act in which she was engaged.” Keyser v Keyser, 182 Mich App 268, 269-270; 451 NW2d 587 (1990). “This rule applies whether the settlement is in writing . . . or . . . orally placed on the record and consented to by the parties, even though not yet formally entered as part of the divorce judgment by the lower court.” Id. at 270.

HUSBAND LOSES ARGUMENT

Affirmed.

-----END

If you have questions about divorce please contact Terry R. Bankert http://www.attorneybankert.com/

HUMBLED BY FINANCES MABEY BANKRUPTCY

2011-03-27T18:45:00.001-05:00

Your BANKRUPTCY QUESTION will be personally answered by Flint Bankruptcy Lawyer Terry Bankert. Call 810-235-1970. Do you have questions about what will happen to your home, car and other property. Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com/

FLINT DIVORCE ATTORNEY AND CASE WHERE WIFE GETS MORE PROPERTY

2011-03-22T04:47:00.000-05:00

Flint Divorce Attorney Terry Bankert ,810-235-1970 discusses several Issues: 1.Divorce;

2.The defendant-husband's claim that the property division was inequitable; Pickering v. Pickering; Reed v. Reed;

3.The factors in Sparks v. Sparks; Berger v. Berger; Thames v. Thames;

4Infidelity; Davey v. Davey;

4Dissipation of martial assets; Woodington v. Shokoohi

SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),

Case Name: S----- v. S-----, Livingston Circuit Court, LC No. 08-003892-DO

e-Journal Number: 48129,Judge(s): Per Curiam - Murphy, Murray, and Shapiro,

[Comments of Flint Divorce Lawyer Terry Bankert ALL CAPS or trb]

YOU HAVE A RIGHT TO APPEAL THE DECISION OF YOUR LOCAL DIVORCE COURT

A trial court’s factual findings will not be reversed unless they are found

to be clearly erroneous, meaning that, this Court is left with a definite and firm conviction that a mistake has been made. Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005).

GOOD LUCK IF YOU TRY

A trial court’s dispositional ruling should be affirmed unless this Court is left with the firm conviction that the property division was inequitable. Pickering, 268 Mich App at 7.

HIGH COURT DECISION

The Michigan Court of Appeals held, inter alia, that an unequal division of marital property is not contrary to Michigan law as long as it is based on the appropriate criteria, the trial court properly determined the situation (after a 38-year marriage) did not warrant a 50-50 property division based on the property division factors, and the trial court did not err in awarding the plaintiff-wife $150,000 in alimony in gross.

The LIVINGSTON DIVORCE trial court used its equitable powers to mold relief according to the nature of the case and did what was necessary to accord complete equity and to resolve the controversy. The MICHGIAN COURT OF APPEALS concluded that reversal was not warranted as to the division of property.

HOW DOES A COURT MAKE A PROPERTY DIVISION?

In dividing the marital property, the trial court’s opinion here addressed the property division

factors set forth in Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).

The Sparks Court stated:

We hold that the following factors are to be considered wherever they are

relevant to the circumstances of the particular case: (1) duration of the marriage,

(2) contributions of the parties to the marital estate, (3) age of the parties, (4)

health of the parties, (5) life status of the parties, (6) necessities and circumstances

of the parties, (7) earning abilities of the parties, (8) past relations and conduct of

the parties, and (9) general principles of equity. There may even be additional

factors that are relevant to a particular case. For example, the court may choose to

consider the interruption of the personal career or education of either party. The

determination of relevant factors will vary depending on the facts and

circumstances of the case. [Id. (citation omitted).]

HUSBANDS ARGUMENT-WIFE CAN WORK!

On appeal the defendant-husband argued the trial court made factual findings that were unsupported by the record - particularly that the wife might be unable to work in the future due to poor health,

HUSBAND ARGUES WIFE EQUALLY RESPONSIBLE FOR BAD INVESTMENTS

the defendant should bear the sole responsibility for bad marital investments and (indirectly) the balance on the equity line of credit,

HUSBANDS ARGUMENT- INFIDELITY NOT A BIG DEAL

and the LIVINGSTON DIVORCE trial court placed an inordinate amount of weight on his infidelity in dividing the martial assets.

…defendant complains that the trial court placed an inordinate amount of emphasis

on his affair and ordered an inequitable property distribution to punish him. A circumstance "to be considered in the determination of property division is the fault or misconduct of a party." Davey v Davey, 106 Mich App 579, 581-582; 308 NW2d 468 (1981). However, “the trial court must consider all the relevant factors and not assign disproportionate weight to any one circumstance.” Sparks, 440 Mich at 158.

HUSBAND CONTINUED AFFAIR WHILE IN COUNSELING WITH WIFE

The trial court found defendant’s affair to be significant in relationship to assessing defendant’s credibility. It is undisputed that defendant lied to plaintiff

about the existence of the affair, misled her about the termination of the affair, and participated in counseling with plaintiff while still engaging in the affair.

WIFE GETS $150,000

The court noted that the disparity in the property division was essentially created by the award to the wife of $150,000 in alimony in gross, given that the trial court otherwise evenly divided, for the most part, the marital estate.

DID YOU KNOW?

Woodington v Shokoohi, 288 Mich App 352; __ NW2d __ (2010) (when a party has dissipated marital assets absent the fault of the other spouse, the value of the dissipated assets can be included in the marital estate).

WHAT IS ALIMONY IN GROSS

If alimony, now referred to as spousal support, is either a lump sum or a definite sum to be paid in installments, it is alimony in gross, which is not truly alimony intended for a spouse’s maintenance, but rather is in the nature of a division of property. Staple v Staple, 241 Mich App 562, 580; 616 NW2d 219 (2000).

NO VALUE IN MARITAL HOME

There was no equity and was indeed negative equity in the marital home awarded to the wife, where its appraised value was surpassed by the mortgage and the balance on the home equity line of credit, which the trial court ordered the wife to pay.

ALIMONY TO PAY OFF LINE OF CREDIT

It appeared from the record that the trial court ordered the husband to pay alimony in gross so that plaintiff could use the funds to pay off the balance due on the line of credit, which nearly equaled the amount of alimony.

LIVINGSTON COUNTY DIVORCE COURT GOT IT RIGHT

On the record presented at trial, and given all of the circumstances in the case, there was no inequity in the trial court's decision. Affirmed.

DIVORCE PROPERTY DIVISION CAN BE UNEQUAL

An unequal division of marital property is not contrary to Michigan law as long as it is

based on appropriate criteria. Washington v Washington, 283 Mich App 667, 673; 770 NW2d 908 (2009). Here, the property division favored plaintiff; however, the trial court assessed the relevant factors, and the record supported such findings. Moreover, "there is no Michigan statute or caselaw that precludes outright a substantial deviation from numerical equality in a property distribution award." Id. In this case, the trial determined that the situation did not warrant a 50- 50 property division based upon the property division factors. The trial court did not err in awarding plaintiff $150,000 in alimony in gross. The trial court used its equitable powers to mold relief according to the nature of the case and it did what was necessary to accord complete equity and to conclude the controversy. Cohen v Cohen, 125 Mich App 206, 211; 335 NW2d 661 (1983).

If you have question about Divorce, custody , child support or bankruptcy call Flint Attorney Terry Bankert 1-810-235-1970

http://www.attorneybankert.com/

1st Eve & ADAM then Flint Divorce by Terry Bankert 810-235-1970

2011-03-04T19:37:00.001-05:00

Adam and Eve were followed by families where matrimony turned to acrimoney For an Adam Divorce can be a difficult process, the same is do for Eve. If you have made that tough decision contact Flint Divorce Lawyer Terry Banket. Even in the best of circumstances, tempers may run high, and every decision can seem to be more stressful than the last. It is only human to find yourself reacting emotionally at certain stages of a divorce, but it is important to remember that your actions throughout the process can affect your familial, emotional, and financial situation for years to come. Flint Divorce Lawyer says Following are some "do's and don'ts" for the divorce process.

THE DO's

DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

DO support your children through this process. It's even tougher on them than on you. Don't make them pick sides.

DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements.

DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

DO ask your attorney if anything doesn't make sense. Your attorney works for you, and should help you understand every part of the divorce process.

THE DON'Ts

DON'T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

DON'T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

DON'T "give away" property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

DON'T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

DON’T make wedding plans with your new significant other until your divorce is finalized.

A FEW OF THE ISSUES.

180 day residency in Michigan required of one of the parties.

Friend of the Court becomes involved if there are children or spousal support is requested.

Allegations In a divorce proceeding the only allegation of the grounds for divorce the statute permits is the no-fault grounds, i.e. " there ha been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likely hood that the marriage can be preserved.

Child Custody proceedings are often part of a divorce action but they may be initiated independent of a divorce proceedings. A married parent may independently commence an action for child support as long as there is no divorce or separate maintenance proceedings.

OTHER PARTIES Generally it is beyond the jurisdiction of the divorce court to adjudicate third- party rights regarding property. An example is a car loan with both names on it. One may be ordered to pay it in the divorce but both can be sued by the lien holder.

Filing and Serving the Divorce/Dissolution Petition

The divorce complaint is a legal document that is filed in court by a spouse who seeks a divorce. This complaint informs the court of the filing spouse's (called the "petitioner") desire to end the marriage, and its filing with the court signifies the initiation of the divorce process. Once the divorce/dissolution petition has been "served" on the petitioner's spouse, it also notifies him or her that the divorce process has begun.

Contents of the Divorce/Dissolution Petition: Information and Requests

A complaint typically contains the following information:

Identification of the spouses by name and address;

Date and place of marriage;

Identification of children of the marriage;

Acknowledgment that the petitioner and/or his or her spouse have lived in the state or county for a certain amount of time prior to filing the petition;

Grounds for divorce;

Declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation, and other issues related to divorce.

A divorce complaint should be as neutral a document as possible. Inflammatory language can

open up wounds that will never heal.

Do you need help now? Call 810 235-1970 !

By Attorney Terry Ray Bankert 810 235-1970

http://attorneybankert.com/

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/

Courts must conduct a hearing before your childs custody is changed!

2011-02-28T07:12:00.001-05:00

PARENTS YOU HAVE A RIGHT TO A BEST INTEREST HEARING EVERY TIME A COURT CHANGES CUSTODY OF YOUR CHILD.

Flint Divorce lawyer Terry R. Bankert discusses several domestic issues :

1-The trial court's dispositional order on remand providing that the minor child's "primary residence" would be with respondent-Reid (his father) subject to parenting time with respondent-Johnson (the mother) in accordance with a mediation agreement, any future issues of custody or parenting time would be decided in the domestic section of the family court, and terminating the trial court's jurisdiction over the child in the child protective proceeding;

2- Flint Divorce Attorney Terry R. Bankert also discusses Whether the trial court erred by failing to enter its order in the related paternity case as well as the child protective proceeding; In re AP;

3.Mediation in domestic relations cases;

4. MISC:MCR 3.216(H); Fran v. Fran; Effect of the parents' use of alternative dispute resolution on the trial court's authority and obligations under the Child Custody Act (CCA); Harvey v. Harvey; MCL 722.26a(1); Whether the case should be remanded to a different judge; Balata v. Balata

Based upon S T A T E O F M I C H I G A N C O U R T O F A P E A L S,UNPUBLISHED

January 20, 2011,In the Matter of B J, Minor. No. 296273,Wayne Circuit Court

Family Divisional No. 06-461948.e-Journal Number: 47937 CAPS and [tab] are from poster Terry R. Bankert Flint Family Law Attorney.

HIGH COURT TAKES PRIMARY RESIDENCE OF THE CHILD FROM FATHER

The MICHIGAN COURT OF APPEALS again vacated the WAYNE FAMILY trial court's dispositional order, which provided that the minor child's "primary residence" would be with respondent-Reid (his father), concluding that the order effectively awarded Reid custody but the trial court again did not consider the statutory best interest factors before changing custody.

FATHERS PHYSICAL CUSTODY HAD BEEN REVERESED

In a prior appeal (In re AP), the court vacated the trial court's May 2008 order entered in a child protective case, pursuant to which the trial court terminated its jurisdiction over the child and awarded Reid physical custody.

LOCAL COURT DID NOT CONDUCT A BEST INTEREST HEARING

The court held in AP that the trial court erred because it failed to ensure that its order was entered in a related paternity case between Reid and respondent-Johnson (pursuant to which Johnson was awarded physical custody) and because the trial court effectively decided the custody issue without considering the CCA's best interest factors.

ON SECOND TRY LOCAL COURT GIVES Dad primary residence

On remand, the trial court entered the December 2009 order at issue here. As an initial matter, the court agreed with Johnson that the trial court again erred by failing to enter its order in the related paternity case as well as the child protective proceeding. While the trial court stated that future issues as to custody and parenting time were to be submitted to the domestic section of the family court that decided the paternity case, since the December 2009 order effectively decided custody and parenting time issues, it was necessary that this order also be captioned with the appropriate paternity case name and number.

ONCE AGAIN THER COURT DID NOT CONDUCT A BEST INTEREST HEARING

Further, the court held that the December 2009 order was not entered in accordance with the court's decision in AP because the trial court again effectively decided custody issues without complying with the CCA's requirements and entry of the order resulted in a conflict with the original custody order entered in the paternity case. In accordance with the court's decision in AP, the trial court could not properly enter a custody award to Reid that would survive the termination of its jurisdiction unless its decision was made in compliance with the CCA.

THE COURT USED A MEDIATION REPORT THAT DID NOT RECOMMEND ON CUSTODY ISSUE

The court also noted that while the December 2009 order was allegedly based on a mediation agreement, that agreement only addressed parenting time, not custody.

PRIMARY RESIDENCE EFFECTIVELY GAVE DAD CUSTODY WITHOUT A HEARING

The order establishing Reid's home as the child's "primary residence" subject to a parenting time schedule for Johnson led to a custody arrangement where Reid was effectively awarded physical custody of the child, contrary to the custody order in the original paternity case, but without the prior custody order ever being modified and without entry of an order formally awarding Reid custody. Vacated [ENDED ORDER] and remanded [SENT BACK TO COURT TO GET IT RIGHT].

===

S T A T E O F M I C H I G A N C O U R T O F A P P E A L S,UNPUBLISHED

January 20, 2011,In the Matter of B J, Minor. No. 296273,Wayne Circuit Court

Family Division,LC No. 06-461948.

NOTES

JUDGES MUST COMPLY WITH THE CHILD CUSTODY ACT CCA

This Court held that the juvenile court erred because it failed to

ensure that its order was entered in a related paternity action between respondents Johnson and

Reid, pursuant to which Johnson had been awarded physical custody of the child, and because

the juvenile court also effectively decided the issue of custody without considering the statutory

best interest factors in the Child Custody Act (CCA), MCL 722.23.

MEDIATION RULES

Mediation in domestic relations actions is governed by MCR 3.216. MCR 3.216(H) provides, in pertinent

part:

(5) The mediator shall discuss with the parties and counsel, if any, the

facts and issues involved. The mediation will continue until a settlement is

reached, the mediator determines that a settlement is not likely to be reached, the

end of the first mediation session, or until a time agreed to by the parties.

(6) Within 7 days of the completion of mediation, the mediator shall so

advise the court, stating only the date of completion of the process, who

participated in the mediation, whether settlement was reached, and whether

further ADR proceedings are contemplated. If an evaluation will be made under

subrule (I), the mediator may delay reporting to the court until completion of the

evaluation process.

(7) If a settlement is reached as a result of the mediation, to be binding,

the terms of that settlement must be reduced to a signed writing by the parties or

acknowledged by the parties on an audio or video recording. After a settlement

has been reached, the parties shall take steps necessary to enter judgment as in the

case of other settlements.

DOMESTIC MEDIATION IS DIFFERENT

Domestic relations mediation under MCR 3.216 differs from binding mediation in other civil

actions because mediation under MCR 3.216 is not binding, but is subject to acceptance or

rejection by the parties. Frain v Frain, 213 Mich App 509, 511; 540 NW2d 741 (1995).

ALTERNATIVE DISPUTE RESOLUTIUON MUST STILL FOLLOW THE LAW

It is well established that parents’ utilization of alternative dispute resolution does not

deprive the court of its authority and obligations under the Child Custody Act. In Harvey v

Harvey, 470 Mich 186; 680 NW2d 835 (2004), our Supreme Court held that parties cannot

stipulate to restrict a trial court’s authority to decide a custody issue.

THE CHILD CUSTODY ACT IS MENT TO GUIDE DECISION MAKING IIN CUSTODY DISPUTES.

The Court Stated:The Child Custody Act is a comprehensive statutory scheme for resolving

custody disputes. Van v Zahorik, 460 Mich 320, 327; 597 NW2d 15 (1999).

With it, the Legislature sought to “promote the best interests and welfare of

children.” Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 (1994).

CCA APPLIES IN ALL CUSTODY DECISIONS

The act applies to all custody disputes and vests the circuit court with continuing

jurisdiction. MCL 722.26.

CHILD BEST INTEREST CONTROL

The act makes clear that the best interests of the child control the

resolution of a custody dispute between parents, as gauged by the factors set forth

at MCL 722.23. MCL 722.25(1). It places an affirmative obligation on the

circuit court to “declare the child’s inherent rights and establish the rights and

duties as to the child’s custody, support, and parenting time in accordance with

this act” whenever the court is required to adjudicate an action “involving dispute

of a minor child’s custody.” MCL 722.24(1); Van, supra at 328.

THE COURTS HAVE A DUTY TO CONDUCT A BEST INTEREST HEARING

Taken together these statutory provisions impose on the trial court the duty to ensure that the

resolution of any custody dispute is in the best interests of the child. [Harvey, 470

Mich at 191-192.]

THE COURT WANTS PARENTS TO REACH AGREEMENT BUT THE COURT HAS A DUTY.

We recognize that parents sometimes reach agreements regarding custody

and visitation matters either informally through direct negotiations or through

mediation procedures made available by dispute resolution organizations. Our

decision does not restrict the ability of parties to address disputes through

alternative dispute resolution processes. We hold only that the statutory “best

interests” factors control whenever a court enters an order affecting child custody.

An initial agreement between the parties cannot relieve the court of its statutory

responsibility to ensure that its adjudication of custody disputes is in a child's best

interests.

MEDIATION AGREEMENTS ARE NOT ENFORCEABLE WITHOUT COURT ORDER

Likewise, parties must understand that a child custody determination

resulting from alternative dispute resolution processes is not enforceable absent a

court order. [Id. at 187-188 n 2.]

JUDGES REQUIRED TO MAKE SURE REFEREE CONDUCT A HEARING

See also Rivette v Rose-Molina, 278 Mich App 327, 330-333; 750 NW2d 603 (2008) (holding

that a Friend of the Court referee must consider the best interest factors in making a custody

recommendation, and the trial court must satisfy itself that the best interest factors were

considered or make its own findings regarding the factors).

YOU HAVE A RIGHT TO ASK FOR JOINT CUSTODY

Further, in accordance with MCL 722.26a(1), the court must consider an award of joint custody if requested by either parent.1

Post here by

Terry R. Bankert

Flint Family Law Attorney

http://www.attorneybankert.com/

FLINT DIVORCE LAWYER,ATTORNEY, TERRY BANKERT presents case where dad wins appeal!

2011-01-27T22:15:00.000-05:00

FATHER WINS appeal as of right the trial court’s order adopting a recommendation by the Friend of the Court that there had been no material change in circumstances to warrant an evidentiary hearing on a request for a change in custody. The order OVERTURNED was not the result of findings on the best interest factors1 and there was no hearing on those factors.[trb]

Flint Divorce Attorney,( Lawyer ), Terry Bankert ,810-235-1970,who handles divorce , child custody and support cases discusses several Issues:

1-The defendant-father's challenge to the trial court's adoption of the FOC recommendation that there had been no material change in circumstances to warrant an evidentiary hearing on a request for change in custody;

2-McIntosh v. McIntosh;

3-The Child Custody Act (CCA); MCL 722.27(1)(c);

4-Whether the custody order at issue was a "temporary" order and could be modified on "proper cause shown or a change of circumstances";

5-Foskett v. Foskett; Vodvarka v. Grasmeyer;

6-"Temporary" custody orders are the exception to the rule that the trial court must hold an evidentiary hearing;

7-Thompson v. Thompson; Phillips v. Jordan

This presentation based on Michigan Court of Appeals (Unpublished 12/28/2010), e-Journal Number: 47755,Judge(s): Per Curiam - Murphy, Meter, and Shapiro, No. 294733,Macomb Circuit Court Family Division, LC No. 2002-005932-DS. CAP headlines or cites [trb] by Terry Bankert with the article altered for SEO.

The MICHIGAN COURT OF APPEALS held that the MACOMB CIRCUIT COURT must conduct an evidentiary hearing on the "best interest factors" and after evaluating all of the best interest factors, determine custody based upon the best interests of the child. Reversed and remanded. On remand, because an original finding concerning best interests was never issued, the parties are not precluded from offering evidence that originated prior to the entry of the interim order, but may use evidence occurring from any time.

AFTER A FINAL ORDER TO CHANGE CUSTODY REQUIRED A CHANGE IN CIRCUMSTANCES

The defendant-father appealed the trial court's order adopting the FOC recommendation that there had been no material change in circumstances warranting an evidentiary hearing on a request for a change in custody.

COURT CALLED AN INTERIUM ORDER FINAL

The trial court entered a consent judgment of support which stated that it was a "final judgment," and "resolved the last pending claim and close[d] this case."

INTERIUM IS INTERIUM NOT FINAL

Despite the "final judgment" language, the order did not contain an order of permanent custody. Instead, it contained only what was termed an "interim" provision as to custody, which provided that the plaintiff-mother "shall have sole legal and physical custody of said minor child(ren) until further order of the court."

The order also included parenting time for defendant.

THERE WAS NO TRIAL LIKE HEARING

The order was not the result of findings on the best interest factors and there was no hearing on those factors.

CHANGE IN CIRCUMSTANCES REQUIRED TO CHANGE A CUSTODY ORDER

“MCL 722.27(1)(c) provides for modification of a custody order on ‘proper cause shown’

or ‘[a] change of circumstances.’” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001), quoting MCL 722.27(1)(c) (alteration in Foskett).

WITH OUT PROVING CHANGE ,ORDER STANDS

“On the basis of this language . . . if the movant does not establish proper cause or change in circumstances, then the court is precluded from holding a child custody hearing.” Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).

TEMPORARY ORDERS ARE THE EXEPTION

However, temporary custody orders are the exception to this rule. Thompson v Thompson, 261 Mich App 353, 357; 683 NW2d 250 (2004). “By definition, a temporary custody agreement is only a temporary order pending further proceedings.” Id. That is, a temporary custody order is not an original or initial order. Id. at 361-62. Therefore, this type of order is outside the scope of the Child Custody Act. MCL 722.27(1)(c). As such, a defendantmay not be denied a full evidentiary hearing just because he or she has stipulated to “temporary custody.” Thompson, 261 Mich App at 357.

EVEN WITH STIPULATIUONS THE COURT MUST HAVE A HEARING

Although defendant stipulated to the temporary order, this does not absolve the trial court of the requirement of determining the best interests of the children prior to entering a permanent order. See id. at 359 (holding that although a trial court will enforce temporary custody agreements, “parties cannot conclusively agree regarding child custody”).

JUDGE CANNOT BLINDLY ACCEPT STIPULATIONS

A trial court is not permitted to “blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child.” Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000).

DAD SAID HE DID NOT HAVE TO SHOW A CHANGE IN CIRCUMSTANCES

Defendant contended because the custody order was a temporary custody order, he was not required to show proper cause or a change of circumstances before the trial court could consider a change in custody pursuant to the CCA, and hold an evidentiary hearing on the best interest factors.

The court noted "By definition, a temporary custody agreement is only a temporary order pending further proceedings." Thus, this type of order is outside the scope of the CCA.

A TRIAL LIKE EVIDENTIARY HEARING IS REQUIRED

As such, a defendant may not be denied a full evidentiary hearing just because he or she has stipulated to "temporary custody."

JUST BECAUSE THE PARTIES AGREE DOES NOT RELIEVE THE JUDGE OF HIS DUTY

Although defendant stipulated to the temporary order, this did not absolve the trial court of the requirement of determining the best interests of the children before entering a permanent order.

THE JUDGE MUST DETERMINE WHAT IS IS IN A CHILDS BEST INTEREST

A trial court is not permitted to "blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child."

Presented here by

Terry Bankert

http://www.attorneybankert.com/

Division of Marital Property

2010-11-14T15:06:00.000-05:00

Statutory Authority

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

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

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

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

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

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

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

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

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

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

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

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

Finally, Reeves sets forth the order for the analysis:

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

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

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

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

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

http://www.attorneybankert.com . Principle Source ICLE 09/16/10http://www.attorneybankert.com . Principle Source ICLE 09/16/10

WHAT IS VALUE IN DIVORCE COURT?

2010-11-05T11:43:00.001-05:00

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

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

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

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

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

Reviewed here is a Michigan Court of Appeals Case,

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

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

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

HUSBAND CHALLENGES THE COURTS VALUATION

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

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

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

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

COURT IGNORED SOME OF HUSBANDS ARGUMENTS

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

HUSBAND LOSES SEPARATE PROPERTY ARGUMENT

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

JOHN DEERE TRACTOR

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

TRIAL BRIEF HAD EXHIBITS

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

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

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

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

Posted here By Flint Divorce Lawyer

Terry Bankert
http://attorneybankert.com/

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

2010-09-10T06:06:00.002-05:00

MOTHER WINS CUSTODY OF A CHILD.

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

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

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

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

4."Hearsay"; Harmless error;

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

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

Case Name: Hammouda v. Mourad

e-Journal Number: 46597

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

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

LOWER COURT GOT IT RIGHT

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

DID YOU KNOW!

A trial court must determine whether an established custodial environment exists before it makes a determination regarding the child’s best interests. Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). A “custodial environment of a

child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). Courts should also consider “[t]he age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship[.]” Id.

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

WHO HAD THE CUSTODIAL ENVIRONMENT? DAD SAYS HIM

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

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

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

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

MOM REALLY HAD CUSTODY.

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

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

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

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

THERE HAS TO BE A CHANGE IN CIRCUMSTANCES

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

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

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

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

MOM’S RETURING TO THE COUNTRY WAS THE CHANGE!

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

FATHERS DENIAL TO MOM HER PARENTING TIME COST HIM CUSTODY.

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

UNDER DADS WATCH THE CHILDS GRADES DECLINED.

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

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

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

2010-08-06T06:17:00.000-05:00

Friday, August 6, 2010

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

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

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

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

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

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

I.Child custody;

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

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

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

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

Case Name: Filsinger v. Filsinger

No. 295643

Ionia Circuit Court

LC No. 2007-025702-DM

e-Journal Number: 46468

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

NO CHANGE IN CIRCUMSTANCE , NO CHANGE IN CHILD CUSTODY

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

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

MOM GOT PHYSICAL CUSTODY OF THE CHILDREN

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

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

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

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

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

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

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

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

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

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

CPS ARRIVES ON THE SCENE

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

DOCTOR DRAGGED INTO THE CASE

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

DAD PLAYS THE PERSONAL PROTECTION ORDER CARD

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

DOC THINKS THERE WAS SEXUAL ABUSE

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

MOMMY AGEES TO COUNSELING

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

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

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

CASE PROCEDURALLY FORCED BACK TO MAKE THE JUDGE DECIDE

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

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

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

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

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

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

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

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

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

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

DAD DISAGREES WITH THIS ONE

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

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

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

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

Affirmed.

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

Presented here by

Terry R. Bankert

http;//attorneybankert.com

--

[1]

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

[TRB]

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

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

2010-07-22T05:24:00.000-05:00

Flint Divorce Attorney comments on Washtenaw Divorce Court Issues:

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

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

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

Attorney's fees; Unthank v. Wolfe

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

Case Name: Cook v. Cook

e-Journal Number: 46266

Washtenaw Circuit Court Lc No 05-001920

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

PLAIN LANGUAGE

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

A SETTLEMENT AGREEMENT IS A CONTRACT

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

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

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

10 INSTALLMENTS

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

SECURITY ON THE DEBT

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

HE CALLED IT RELIEF FROM JUDGEMENT, COURT LOOKED BROADER

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

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

THE APPEAL

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

INTENT OF THE PARTIES

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

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

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

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

349-350; 605 NW2d 360 (1999).

IF THE LANGUAGE IS CLEAR THIS CONTRACT SHOULD NOT BE CHANGED

Where the contractual language is clear and unambiguous,

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

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

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

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

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

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

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

Affirmed in part, vacated in part, and remanded.

Posted here by

Terry Bankert

http://attorneybankert.com/

Child preference in a Child Custody action.

2010-07-13T06:20:00.000-05:00

An AVVO question.

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

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

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

ANSWER

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

BEST INTEREST OF THE CHILD

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

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

REASONABLE PREFERENCE

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

IF THE CHILD IS OLD ENOUGH

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

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

THE COURT MAY QUESTION IN THE JUDGES OFFICE

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

MANY DO NOT WANT CHILDREN TO TESTIFY IN OPEN COURT

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

THE JUDGE CAN ASK THE CHILD THEIR PREFERENCE

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

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

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

2010-07-02T11:06:00.001-05:00

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

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

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

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

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

LOCAL COURT DID IT WRONG!

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

PRIOR TO DIVORCE HUSBAND AND WIFE HAD AN AGREEMENT

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

AFTER DIVORCE WIFE SAYS SHE WANTS MORE SPOUSAL SUPPORT

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

COURT OF APPEALS AGREES WITH WIFE

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

YOU CANNOT DO THAT SAYS THE HIGHER COURT

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

HUSBAND ASSETS ARE INCOME PRODUCING

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

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

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

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

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

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

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

---

BACKGROUND

THERE WAS A TRIAL

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

bench trial.

THERE WAS AN AGREEMENT BEFORE THE TRIAL ALL EXCEPT SPOUSAL SUPPORT

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

spousal support.

EACH TO GET VALUE OF $207,000

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

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

WIFE SAYS SHE DID NOT GET ENOUGH SPOUSAL SUPPORT

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

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

We agree and remand for additional proceedings consistent

with this opinion.

WHAT THERE ABUSE OF DISCRETION

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

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

A EMMET COUNTY DIVORCE trial court’s factual findings

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

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

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

Id.

WHY DOES A COURT AWARD SPOUSAL SUPPPORT?

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

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

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

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

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

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

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

(2) the length of the marriage;

(3) the abilities of the parties to work;

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

(5) the parties’ age;

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

(7) the present situation of the parties;

(8) the needs of the parties,

(9) the parties’ health;

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

either is responsible for the support of others;

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

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

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

(14) general principles of equity.

[Id.]

ARE ANY OF THE ASSETS INCOME PRODUCING?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 15, 1998 (Docket No. 204722).

WIFE AND HUSBAND RECEIVE SUBSTANTIAL ASSETS

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

HUSBAND SADDFLED WITH PAYING WIFE

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

EMMET COUNTY DIVORCE COURT WAS WRONG

This was error.

HE OWED IT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HUSBAND GOT THE BUSINESS AND WILL RECEIVE INCOME FROM IT

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

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

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

assets.

WIFE MAKES $10 PER HOUR

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

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

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

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

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

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

double crediting capital improvements to the business against that income.

THE COURT COMPUTED HUSBANDS INCOME WRONG

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

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

much of the work was done.

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

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

--

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

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

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

plaintiff’s ability to pay based solely on evidence.

--

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

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

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

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

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

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

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

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

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

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

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

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

income.

FACTORS THE COURT SHOULD USE

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

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

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

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

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

COURT NEEDS A COMPLETE PICTURE

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

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

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

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

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

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

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

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

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

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

---

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

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

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

capital expenditures and treats them as total losses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

higher paying employment than she is now capable of obtaining.

---

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

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

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

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

We do not retain jurisdiction.

/s/ Douglas B. Shapiro

/s/ Pat M. Donofrio

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

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

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

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

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

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

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

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

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

-

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

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

2010-06-18T05:41:00.002-05:00

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

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

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

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

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

S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ,

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

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

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

RUSSELL E. EATON, Defendant-Appellant.

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

PER CURIAM.,e-Journal Number: 45946.

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

FATHER LOSES

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

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

.

I. FACTS AND PROCEDURAL HISTORY

DIVORCED IN 2007

Plaintiff and defendant were divorced in June 2007.

TWO MINOR CHILDREN

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

ORIGINAL JOINT CUSTODY, PLAY ON WORDS PRIMARY RESIDENCE TO MOM

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

DAD WANTS A CHANGE 08/14/2008

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

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

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

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

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

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

MIDLAND DIVORCE COURT AGREES TO LOOK AGAIN AT MIDLAND CHILD CUSTODY

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

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

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

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

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

II. ANALYSIS

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

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

FIRST,

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

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

SECOND

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

THIRD

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

OKAY JUST WHAT IS AN ABUSE OF DISCRETION?

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

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

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

WHY DO WE HAVE THIS BURDEN TO CHANGE CHILD CUSTODY?

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

NO PROVE , NO GO FORWARD

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

WHAT IS PROPER CAUSE IN MIDLAND CHILD CUSTODY?

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

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

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

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

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

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

reevaluation of the statutory best interest factors.

* * *

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

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

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

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

have materially changed.

NEW ,THAT SIGNIFICANTLY AFFECTS THE CHILD

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

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

MORE THAN NORMAL LIFE CHANGES

Instead, the evidence must demonstrate something more than the normal

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

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

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

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

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

514 (emphasis in original).]

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

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

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

the judgment of divorce.

WHAT DID FATHER SAY THE CHANGE WAS?

In his petition, defendant articulated numerous specific instances that

constituted a change of circumstances, including…

ONE

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

TWO

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

THREE

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

FOUR

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

FIVE…BINGO...IT'S ALL ABOUT BASEBALL

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

SIX

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

COURT DID NOT THINK DAD HAD ENOUGH

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

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

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

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

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

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

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

witnesses.

MIDLAND CHILD CUSTODY COURT DECIDED THE PARENTS CANNOT CO- PARENT

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

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

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

parties is appropriately categorized as a change of circumstances.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

children came from plaintiff and plaintiff’s witnesses.

LOCAL COURT GETS TO LOOK AT CREDIBILITY

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

MIDLAND CHILD CUSTODY COURT GOT IT RIGHT

As the trial court observed, one of the statutory best

interest factors is “[t]he willingness and ability of each of the parties to facilitate and encourage a

close and continuing parent-child relationship between the child and the other parent or the child

and the parents.” MCL 722.23(j). The trial court’s finding that the parties were unable to coparent

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

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

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

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

custody order.

2. ESTABLISHED CUSTODIAL ENVIRONMENT

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

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

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

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

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

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

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

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

197; 614 NW2d 696 (2000).

WHAT IS AN ESTABISHED CUSTODIAL ENVIRONMENT?

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

ITS PHYSICAL AND PSYCHOLOGICAL

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

OVER A PERIOD OF TIME

An established custodial environment exists “if over an

appreciable time the child naturally looks to the custodian in that environment for guidance,

discipline, the necessities of life, and parental comfort,” MCL 722.27(1)(c), and “the relationship

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

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

BOTH PARENTS CAN HAVE IT

An established custodial environment may exist

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

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

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

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

MIDLAND CHILD CUSTODY COURT FINDS FOR MOM

Court finds that there is an established custodial environment with the

Plaintiff in this case.

WHY?

ONE

Plaintiff was the children’s primary caregiver from their

birth, staying home with the children while Defendant worked.

TWO

This arrangement

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

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

lives.

THREE

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

the fulfillment of their needs.

FOUR

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

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

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

first years of their lives.

FIVE

However, that time has been sporadic and not fostered

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

SIX

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

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

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

SEVEN

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

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

DAD WAS NOT A PARENTING PARENT

The Court finds no established custodial environment with Defendant.

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

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

KIDS ARE MORE SECURE WITH MOM

There was evidence that

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

permanence.

MOMS HOME WAS THE PRIMARY RSSIDENCE

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

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

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

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

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

the children’s relationship with defendant.

DAD DOES LOVE HIS CHILDREN

It is true that there was testimony that defendant

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

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

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

and disciplined the children.

DADS HOME LACKED SECURITY

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

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

ONE...DAD IS AN ANGRY GUY

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

were present and that his anger affected the children,

TWO..DAD PUT THE DRAMA INFRONT OF THE CHILDREN

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

THREE

Furthermore, there was evidence to support the trial

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

have a good time.

LOCAL COURT GETS TO DECIDE

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

environment with defendant involved credibility determinations and the possible rejection of

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

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

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

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

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

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

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

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

3. STATUTORY BEST INTEREST FACTORS

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

interest factors were against the great weight of the evidence.

BEST INTEREST FACTORS

To determine child custody, the

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

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

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

(a) The love, affection, and other emotional ties existing between the parties

involved and the child.

(b) The capacity and disposition of the parties involved to give the child love,

affection, and guidance and to continue the education and raising of the child in

his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child

with food, clothing, medical care or other remedial care recognized and permitted

under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment,

and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial

home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to

be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and

encourage a close and continuing parent-child relationship between the child and

the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed

against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child

custody dispute.

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

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

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

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

consider any other factor under (l).

A

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

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

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

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

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

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

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

evidence.

B

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

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

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

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

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

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

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

great weight of the evidence.

D

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

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

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

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

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

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

E

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the evidence.

G

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

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

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

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

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

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

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

factor was not against the great weight of the evidence.

H

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

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

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

J

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

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

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

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

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

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

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

K

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

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

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

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

was never charged with domestic violence.

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

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

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

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

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

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

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

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

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

against the great weight of the evidence.

4. DUE PROCESS

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

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

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

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

witnesses or exhibits in rendering its opinion.

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

149, 155; 729 NW2d 256 (2006).

LIFE AND LIBERTY

The Michigan Constitution and the United States Constitution both preclude the

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

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

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

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

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

JUST WHAT IS DUE PROCESS

There are two types of due process:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

without merit.

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

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

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

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

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

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

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

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

preferences.

SHOULD THE LOCAL COURT HAVE LISTENED CLOSER TO THE CHILDREN?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

WE HAVE SAID THIS BEFORE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. CONCLUSION

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

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

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

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

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

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

determine their preference.

MICHIGAN COURT OF APPEALS AGREES WITH THE MIDLAND CHILD CUSTODY COURT

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

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

Posted here by

Terry R. Bankert

http://attorneybankert.com/

Or http://dumpmyspouse.com/

[1]

Generally

S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ,

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

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

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

RUSSELL E. EATON, Defendant-Appellant.

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

PER CURIAM.,e-Journal Number: 45946.

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

[2]

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

parenting time on alternating weeks would continue during the summer.

FLINT DIVORCE ATTORNEY POST ST. CLAIR COUNTY DIVORCE JUDGEMENT AND THE HIGHER COURTS REVIEW

2010-06-15T07:06:00.002-05:00

Judgement language, St.Clair County Divorce, Flint lawyer, Step Mom and insurance proceeds, who get what?

WHY DID A ST.CLAIR COUNTY DIVORCE DECISION GOE TO SUPREME COURT, These Issues presented by Flint Divorce ATTORNEY Terry Bankert 235-1979:

1.INSURANCE COMPANY DISTRIBUTIONClaims related to the erroneous payment of insurance proceeds to defendant-Cindy Genaw;

2,AMBIGUITY Interpretation of MCL 552.101(2); Houdek v. Centerville Twp.; Metropolitan Life Ins. Co. v. Church; Notice; Schepke v. Department of Natural Res.; Thom v. Washington Nat'l Ins. Co.; ERISA; Sweebe v. Sweebe; Moore v. Moore

MICHGIAN St. Clair Divorce insurance issue to be reviewed by the Michigan Supreme Court Order in its order of ,June 4, 2010. For reference Supreme Court #SC: 140017, Michigan Court of Appeals #COA: 284214

The case is based on a MICHIGAN St, Clair Divorce decision litigated in St Clair Probate Court : 07-000069-CZ

Case Name: Genaw v. Genaw ,GAYLORD GENAW, JR., Personal Representative of the Estate of Gaylord Genaw, Sr., Plaintiff-Appellee, v CINDY GENAW, Defendant,and

UNUM LIFE INSURANCE COMPANY, Defendant-Appellant. e-Journal Number: 46010

Judge(s): Cavanagh, Weaver, Corrigan, Young, Jr., and Markman; Dissent - Kelly; Voting to deny leave to appeal - Hathaway. Additions for lay understanding and SEO noted as CAP headlines or [trb]

THE MICHIGAN SUPREME COURT SAYS THE MICHIGAN COURT OF APPEALS MAY HAVE GOT IT WRONG

In an order in lieu of granting leave to appeal, the court reversed the judgment of the Court of Appeals in a published opinion for the reasons stated in the Court of Appeals dissenting opinion, and remanded to the probate court for entry of an order granting defendant-Unum's motion for summary disposition.

AGAIN INSURANCE COMPANY OFF THE HOOK!

The defendant-insurer was discharged from all liability under MCL 552.101(2) when it paid the policy benefits to the named beneficiary prior to receiving any notice of a competing or adverse claim to those benefits.

RIGHTFULLY JUSTICE KELLY DOES NOT AGREE

In her dissent, Justice Kelly would grant leave to appeal to resolve the differing interpretations of MCL 552.101(2), which addresses entitlement to life insurance proceeds after a divorce.

BEWARE UNLESS YOUR DIVORCE JUDGEMENT SAYS OTHERWISE INSURANCE PROCEEDS WILL GO TO INSURED.

The statute declares, "absent an express designation to the contrary, once a divorce is final all policy benefits are payable to the insured."

WHAT HAPPENS WHEN EX SPOUSE LEFT OFF AFTER DIVORCE

This addresses the problems posed when an ex-spouse is inadvertently left as the named beneficiary after a divorce. Another clause protects insurance carriers. It provides a carrier is discharged from liability for distribution of the insurance proceeds if it pays them to the named beneficiary, absent notice of a competing claim.

THE HIGHER COURT’S JOB IS TO CLARIFY THE LAW

The Supreme Court should resolve the correct interpretation of MCL 552.101(2). The majority "hastily accepted the dissenting opinion as correct" without full briefing or oral argument.

THE EX WIFE IS A PERSON OF INTEREST

Under the language of the statute, petitioner's ex-wife, a named beneficiary of the policy, appeared to be a "person having interest in the policy." The statute does not contain a requirement the notice be given by someone other than the named beneficiary or the insurer be advised of a competing claim to the insurance benefits.

SUPREME COURT REVERSES THE COURT OF APPEALS

On order of the Court, the application for leave to appeal the October 6, 2009

judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in

lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals

THE SUPREME COURT AGREES WITH THE COURT OF APPEALS DISSENTBY C.J.KELLY

for the reasons stated in the Court of Appeals dissenting opinion, and REMAND this case to

the St. Clair Probate Court for entry of an order granting defendant Unum Life Insurance

Company’s motion for summary disposition.

INSURANCE COMPANY OFF THE HOOK

The defendant insurer was discharged from all liability under MCL 552.101(2) when it paid the policy benefits to the named beneficiary prior to receiving any notice of a competing or adverse claim to those
benefits.

KELLY, C.J. (dissenting).

I would grant leave to appeal.

WHAT HAPPENS TO INSURANCE IN A MICHIGAN DIVORCE

At issue in this case is the interpretation of MCL 552.101(2), a statute that addresses entitlement to life insurance proceeds after a divorce.

THE LAW IS CLEAR SO WHAT IS THE PROBLEM

The statute declares that, absent an express designation to the contrary, once a divorce is

final all policy benefits are payable to the insured.

WHAT IF THE DIVORCE COURT ORDER WAS FOR THE SURVIVING SPOUSE NOT TO GET BENEFITS? BUT A MICHGIAN DIVORCE ATTORNEY MAKES A MISTAKE AND THE INSURANCE BENIFICIARY WAS NOT CHANGED? WAS IT THE MICHIGAN DIVORCE LAWYERS FAULT?

This addresses the problems posed when an ex-spouse is inadvertently left as the named beneficiary after a divorce.

MISTAKE OR NO MISTAKE BIG BUSINESS IS OFF THE HOOK

An additional clause protects insurance carriers. It provides that a carrier is discharged from

liability for distribution of the insurance proceeds if it pays them to the named

beneficiary, absent notice of a competing claim.1

GETTING TO THE POINT

The issue in this case is whether notice was provided to the insurance company.

Gaylord Genaw, Sr. was killed in a traffic accident just three days after he was divorced

from his wife.

THE ST.CLAIR COUNTY DIVORCE JUDGEMENT SAID WIFE NOT ENTITLED

The judgment expressly indicated that his ex-wife was not entitled to the

proceeds of his life insurance policy.

IT APPEARS THE ST. CLAIR COUNTY DIVORCE LAWYER DID NOT NOTIFY THE INSURANCE COMPANY OF WIFE’S DISENTITLEMENT!

However, his ex-wife’s designation as beneficiary on the policy was never changed. She took advantage of this after the accident and made a claim for the proceeds.

AT HUSBANDS DEATH WIFE TOLD THEM ABOUT THE DIVORCE, THEY NEVER READ IT AND PAID HER ANYWAY. WHY IS BIG ISURANCE LET OFF THE HOOK AGAIN?

Defendant paid them to her, even though she disclosed the divorce on the claim form and the death certificate she submitted to defendant also indicated that Gaylord was divorced.

STEP SON IN A LOVING THOUGHTFUL MANNER SUES HIS EX STEP MOTHER

When Gaylord’s son discovered that she had improperly collected the policy proceeds, he brought this action against her and against the insurance company.

ST.CLAIR COUNTY PROBATE COURT SAYS STEP MOM GIVE IT UP!

The trial court ordered the ex-wife to turn over to plaintiff what remained of the

proceeds. The court then held defendant liable for the remainder.

THE MICHGIAN COURT OF APPEALS ALSO SAID STEP MOM KEEP THE MONEY!

The Court of Appeals affirmed this action in a published split opinion.2 It found that the ex-wife qualified

As “any other person having interest in the policy” under MCL 552.101(2).

SHE TOLD THE INSURANCE COMPANY THERE WAS A DIVORCE, WHY NOT KEEP THE MONEY?

Because she Had given defendant written notice of the divorce, the court found that defendant had received

notice according to the statute and was therefore responsible for wrongfully disbursing

1

ST.CLAIR COUNTY, MICHIGAN, DIVORCE AND INSURANCE

MCL 552.101(2) states, in its entirety:

Each judgment of divorce or judgment of separate maintenance shall

determine all rights of the wife in and to the proceeds of any policy or

contract of life insurance, endowment, or annuity upon the life of the

husband in which the wife was named or designated as beneficiary, or to

which the wife became entitled by assignment or change of beneficiary

during the marriage or in anticipation of marriage. If the judgment of

divorce or judgment of separate maintenance does not determine the rights

of the wife in and to a policy of life insurance, endowment, or annuity, the

policy shall be payable to the estate of the husband or to the named

beneficiary if the husband so designates. However, the company issuing

the policy shall be discharged of all liability on the policy by payment of its

proceeds in accordance with the terms of the policy unless before the

payment the company receives written notice, by or on behalf of the insured

or the estate of the insured, 1 of the heirs of the insured, or any other

person having an interest in the policy, of a claim under the policy and the

divorce. [Emphasis added.]

2 In re Genaw Estate, 285 Mich App 660 (2009).

3

the funds.3 The dissenting judge would have held that a named beneficiary cannot

qualify as an “other person having interest in the policy.”4

WHAT IS THE CORRECT INTERPRETATION? WHAT IT SAYS OR WHAT IT MEANS J

The Supreme Court should resolve the correct interpretation of MCL 552.101(2).

THE COURT OF APPEALS WAS IN A SLOPPY HURRY?

The majority has hastily accepted the dissenting opinion as correct without the benefit of

full briefing or oral argument.

ONE SUPREME COURT JUSTICE IS TROUBLED!

I find this troublesome because, under the language of the statute, petitioner’s ex-wife, a named beneficiary of the policy, appears to be a “person having interest in the policy.”

JUST WHAT KIND OF NOTICE IS ADEQUATE

Nowhere does the statute contain a requirement that notice be given by someone other than the named beneficiary or that the insurer be advised of a competing claim to the insurance benefits.

THEY NEED PERMISSION OF LEAVE TO APPEAL, IT WAS GIVEN.

Accordingly, I would grant leave to appeal to resolve the differing interpretations

of the statute.

3 Under the factual circumstances of this case, it is undisputed that Unum received a

claim from Genaw that specifically acknowledged both her status as the ex-wife of the

decedent and the existence of a divorce. Consequently, this information, submitted in

conjunction with her claim, was sufficient to meet the notice requirement imposed by the

existing statutory language, and the insurance company was not absolved of its liability

for payment of the proceeds to the designated beneficiary. [Id. at 669.]

PLAIN LANGUAGE

4 [T]he plain language of the statute absolves an insurer of liability for paying its

proceeds in accordance with the terms of the policy unless before the payment it receives

written notice of a claim and of the divorce from one of the persons identified in the

statute.

SPECIFIED PERSONS

These specified persons—(1) the insured or the estate of the insured, (2) the heirs

of the insured, or (3) any other person having an interest in the policy—are plainly ones

who could have an interest in the policy if the beneficiary designated in the policy no

longer had a right to the benefits of the policy.

CLAIM MAKING

A claim by such a person would clearly

give the insurer notice of the extinguishment of the former wife/beneficiary’s interest in

the policy and of the existence of a claim by one other than the beneficiary designated in

the policy. Thus, “other person” logically means a person other than the claimant

(beneficiary) already known to the insurer.

WRITTEN NOTICE NEEDED

Absent written notice of a claim under the

policy by one of the persons identified in the statute before making payment on its policy,

the insurer is discharged of all liability on the policy for payment of its proceeds in

accordance with the terms of the policy.

MOST IMPORTANT TO LET THE INSURANCE COMPANY OFF THE HOOK

This interpretation advances the clear purpose

of the statutory language at issue, which is to protect an insurer that pays its policy

proceeds in accordance with the terms of the policy absent the requisite notice of a claim

by someone other than the beneficiary designated in the policy. In my view, the plain

language of the statute mandates this conclusion. [Id. at 675-676; emphasis in original

(FITZGERALD, J., dissenting).]

HATHAWAY, J., would grant leave to appeal.

Posted 06/15/2010 here by

Terry R. Bankert

A Flint Michigan Divorce Lawyer

http://attorneybankert.com/

Or

http://dumpmyspouse.com/

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

2010-06-02T22:03:00.000-05:00

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

2010-06-01T16:13:00.000-05:00

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/

SAGINAW SPOUSAL SUPPORT AND DIVORCE, LAWYER COMMENTS

2010-05-28T07:24:00.001-05:00

SAGINAW DIVORCE REVIEWED BY ATTORNEY TERRY BANKERT A DIVORCE LAWYER. For immediate help with your family law questions call 810-235-1970.

THE SAGINAW SPOUSAL SUPPORT DIVORCE CASE

CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.

Docket No(s) 288923, Published 05/04/2010

Trial Court/lower Court Saginaw County Circuit Court.

Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM

(This opinion has been modified for media presentation)

To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf

SAAD, J.

Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.

I. SPOUSAL SUPPORT

Plaintiff argues that the trial court erred in awarding her alimony in gross in lieu of the spousal support she sought. She also contends that the trial court failed to make findings of fact in support of this decision. We find that the trial court’s failure to make relevant findings precludes review of this decision, and we remand to the trial court for further findings.

This Court reviews a trial court’s award of spousal support for an abuse of discretion. Olson v Olson, 256 Mich App 619, 631; 671 NW2d 64 (2003). An abuse of discretion occurs where the trial court’s decision falls outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). The trial court’s findings of fact relating to an award of spousal support are reviewed for clear error. Moore v Moore, 242 Mich App 652, 654; 619 NW2d 723 (2000).

“In deciding a divorce action, the circuit court must make findings of fact and dispositional rulings.” McDougal v McDougal, 451 Mich 80, 87; 545 NW2d 357 (1996). This Court must first review the trial court’s findings of fact. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). Findings of fact, such as a trial court’s valuation of particular marital assets, will not be reversed unless clearly erroneous. Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). A finding is clearly erroneous if, after a review of the entire record, the reviewing court is left with the definite and firm conviction that a mistake was made. Id.; Johnson v Johnson, 276 Mich App 1, 10-11; 739 NW2d 877 (2007). Special deference is given to the trial court’s findings when they are based on the credibility of the witnesses. Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). The determination of the proper time for valuation of an asset is in the trial court’s discretion. Gates v Gates, 256 Mich App 420, 427; 664 NW2d 231 (2003). If the trial court’s findings of fact are upheld, the appellate court must decide whether the dispositive ruling was fair and equitable in light of those facts. Sparks, 440 Mich at 151-152. “The court’s dispositional ruling should be affirmed unless this Court is left with the firm conviction that the division was inequitable.” Pickering v Pickering, 268 Mich App 1, 7; 706 NW2d 835 (2005).

Plaintiff sought spousal support in the amount of $55,000 annually (rounded to $4,600 monthly) until the parties’ younger child began attending high school, which would enable plaintiff to continue her status as a full-time stay-at-home mom until the children completed middle school. Defendant stated in his trial brief that he would be willing to pay spousal support in the amount of $55,000 per year for two years.

The objective of spousal support is to balance the incomes and needs of the parties in a way that will not impoverish either party, and support is to be based on what is just and reasonable under the circumstances of the case. Berger v Berger, 277 Mich App 700, 726; 747 NW2d 336 (2008). Among the factors that a court should consider are: (1) the past relations and conduct of the parties; (2) the length of the marriage; (3) the abilities of the parties to work; (4) the source and amount of property awarded to the parties; (5) the parties’ ages; (6) the abilities of the parties to pay support; (7) the present situation of the parties; (8) the needs of the parties; (9) the parties’ health; (10) the parties’ prior standard of living and whether either is responsible for the support of others; (11) contributions of the parties to the joint estate; (12) a party’s fault in causing the divorce; (13) the effect of cohabitation on a party’s financial status; and (14) general principles of equity. Id. at 726-727.

Plaintiff says that the trial court abused its discretion because it essentially denied her spousal support, and opted instead to award her alimony in gross, “a division of property.” 1 The trial court did not explain its reasons for awarding alimony in gross, its reasons for awarding the specific amount of alimony in gross, or its reasons for denying plaintiff’s request for periodic spousal support subject to modification under MCL 552.28. Accordingly, we are unable to discern why the court believed that this decision was appropriate for the parties’ circumstances. The trial court could have ordered spousal support or an award of property called “alimony in gross” but, to support its dispositional ruling, the court was required to make findings of fact that are susceptible to appellate review. Because the trial court failed to provide its analysis or reasoning to its decision to award alimony in gross and deny plaintiff’s request for spousal support, we must reverse and remand with instructions that the trial court make findings of fact appropriate for judicial review.

Posted here by

Terry Bankert

http://attorneybankert.com/

see

[1]

CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.

Docket No(s) 288923, Published 05/04/2010

Trial Court/lower Court Saginaw County Circuit Court.

Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM

[2]

CAP HEADLINES OR (trb)

Terry Bankert

http://attorneybankert.com/

MISC

FOOTNOTES

1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.

FLINT DIVORCE ATTORNEY COMMENTS THAT NAS & KELIS MARRAIGE ENDED.

2010-05-25T06:38:00.000-05:00

Flint Divorce Attorney comments on: The Milkshake hitmaker’s marriage to rapper Nas it's officially over.[1]

NAS & KELIS DIVORCE

Power couple Nas and Kelis announced that they were calling it quicks back in April 2009 despite being pregnant with their first son together. Since then they have gone through a nasty legal battle over child support and child custody. Finally, a little over a year later, the marriage has officially come to a close.[4]

MICHIGAN FILING FOR DIVORCE

The initial filing for a divorce without children includes a summons, a complaint, filing fees, and a record of divorce or annulment (some counties require filing at the time of entry of the judgment).[5]

WHEN THERE ARE CHILDREN

If there are minor children or a request for spousal support, a verified statement must be served on the other party and provided to the Friend of the Court. The initial filing for a divorce with minor children must also include information about custody proceedings and the names and birth dates of the minor children.

MICHIGAN BASIS FOR DIVORCE

“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[5]

FILING FOR DIVORCE

In legal documents filed last Friday in L.A. County Superior Court and obtained by TMZ, the pair’s union has been terminated.[1]

No divorce judgment may be entered without a hearing in open court at which proofs are taken. The testimony of at least one party must establish the statutory grounds and jurisdiction.[5]

No proofs or testimony can be taken until 60 days after the complaint is filed, or 6 months if there are minor children. The court may not shorten the 60-day period, but may reduce the 6-month period to as few as 60 days if there is “unusual hardship or compelling necessity.”[5]

The parties may preserve testimony during the waiting period.[5]

CHILD CUSTODY AND SPOUSAL SUPPORT

However, the couple still need to agree on child custody and spousal support.[1]

HOW MUCH SUPPORT

Nas currently pays Kelis around $10,000 a month for child and spousal support, which he claims he can’t afford.[1]

Nas has been ordered to pay Kelis $10,000 a month in spousal support.[2]

The Michigan Child Support Formula is used as a guideline for determining the amount of support that may be ordered unless application of the formula is unjust or inappropriate. MCL 552.605(2). [5]

TEMPORARY ORDERS SET SUPPORT ISSUES

May be entered at any time on the filing of a verified motion, after a hearing.

Must state effective date and whether it may be modified retroactively. The order remains in effect until modified or a final judgment or order is entered.[5]

CHILD SUPPORT ARREARAGE

The hip-hop star was also told he has to pay his estranged spouse $47,249.42 in back child support for their seven-month-old son Knight, and $40,454 in back spousal support during a hearing in Los Angeles County Superior Court Monday.[2]

The court has inherent authority as a court of equity to enforce its own directives. The court may enforce provisions in the divorce judgment that the parties agreed to even if the court would not have had authority to order them without the parties’ consent.[5]

SUPPORT INCREASE

In December, Nas had his monthly spousal and child payments to Kelis increased from a combined $40,000 to a total of $51,000 a month, but has failed to keep up with the installments.[2]

The musician — real name Nasir Jones — had his spousal support payments increased in order to cover some of the $299,015.50 he owes the Milkshake singer.[[2]

KELIS HAS IRRECONCILABLE DIFFERENCES

Kelis filed for divorce last April citing “irreconcilable differences”.[1]

FAULT

It is believed she became tired of Nas’ verbal abuse and alleged infidelity.[1]

STARVING PREGNANT MOM

Since their split, the pair have regularly been in dispute over finances, with Kelis claiming Nas had not given her enough money to live on during her pregnancy.

Nas insisted he had paid her $30,000 in expenses.[1]

ITS P.DIDDY’S FAULT

Kelis and Nas originally met at an after-party hosted by P. Diddy for the 2002 MTV Video Music Awards.[1]

HER FUNKY MOOD DETERMINS CHILD VISITATION

In a recent interview with VIBE, Nas implied that Kelis is a little haphazard when it comes to access to their son - depending on her mood.[3]

PARENTING TIME IN MICHIGAN

The Child Custody Act of 1970, MCL 722.21 et seq., establishes rights and duties regarding parenting time (visitation) in disputed actions. The family division of the circuit court has exclusive jurisdiction over cases of child custody, including questions regarding parenting time. See MCL 600.1021(1)(g).

MCL 722.27a sets forth general principles controlling parenting time decisions.

It is presumed that it is in the best interests of a child to have a strong relationship with both parents.

The frequency, duration, and type of parenting time granted should be reasonably calculated to promote a strong relationship between the child and the parent granted parenting time. See also Booth v Booth, 194 Mich App 284, 486 NW2d 116 (1992).

The child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that parenting time would endanger the child’s physical, mental, or emotional health. See also Rozek v Rozek, 203 Mich App 193, 511 NW2d 693 (1993).

If the parents reach an agreement regarding parenting time, the court must order the parenting time terms unless it finds on the record by clear and convincing evidence that the terms are not in the child’s best interests. MCL 722.27a(2). [5]

5YR MARRAIGE

They got engaged a year later and married in Atlanta in 2005[1]

Posted here by

Terry Bankert

http://attorneybankert.com/

See

[1]

http://www.showbizspy.com/article/205193/kelis-officially-divorced-from-nas.html

[2]

http://www.showbizspy.com/article/203026/nas-ordered-to-pay-kelis-10k-per-month.html

[3]

http://www.taletela.com/news/1376/nas-and-kelis-are-officially-divorced

[4]

http://www.hollywoodnews.com/2010/05/25/nas-and-kelis-are-officially-divorced/

[5]

Michigan Family Law Benchbook ch 1 (ICLE 2d ed 2006)

HE HAS A FRIEND NAMED "HOSS"

2010-05-20T19:21:00.002-05:00

WHAT COULD BE WORSE FOR MR. NODINE? DIVORCE SERVED, DRUG INDICTED , POLITICALLY IMPEACHED AND NAMED ONLY MURDER SUSPECT IN DEATH OF MISTRESS!...... BUT HE HAS A FRIEND NAMED “HOSS”!

Terry Bankert a Flint Divorce Lawyer , http://attorneybankert.com/ observes it was a bad day for Alabama Mobile County Commissioner Stephen Nodine . Most of us working stiffs think our world has ended and nobody has it worse than us when we are served divorce papers.

IF YOU THOUGHT THE DAY YOU WERE SERVED WITH DIVORCE PAPERS WAS BAD ASK MR. NODINE

SERVED INDICTED IMPEACHED AND NAMED ONLY MURDER SUSPECT

On one Friday he was served divorce papers indicted Friday by a Mobile County Grand Jury on drug charges, impeached and named the only suspect in the murder of his mistress, Angel Downs[see-1]

MICHIGAN IS A NO FAULT DIVORCE STATE.Mrs. Nodine could divorce here without all the above drama.

To end a valid marriage, there must be a judgment of divorce. In a divorce complaint, the only allegation of the grounds for divorce the statute permits is the no-fault ground, i.e., “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” MCL 552.6(1). [3]

If the statutory standard is met, the court must enter a judgment of divorce; thus, one party will invariably be able to obtain the divorce even if the other party objects. Grotelueschen v Grotelueschen, 113 Mich App 395, 318 NW2d 227 (1982) (if either party is unwilling to live with the other, the objects of matrimony have been destroyed); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973) (one party’s assertion of the mere possibility that the marriage can be preserved is not sufficient grounds to deny the divorce). [3]

WIFE THINKS THERE MAY BE IRRECONCILEABLE DIFFERENCES

In the divorce papers filed Friday, Kimberlee Nodine cites an "irretrievable breakdown of the marriage" and says any attempts to reconcile would be futile.[1] .....Do ya think!

WHAT WILL SHE GET WHEN HES IN JAIL?

She's seeking custody of their son, $971 per month in child support and $2,500 per month in alimony. Mrs. Nodine also wants to keep the couples house and her 2005 Honda Pilot, but wants Steve to pay the mortgage and car payment. She also wants Steve's pension from Mobile County.[1]

CHILD CUSTODY IN MICHIGAN

A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment. MCL 722.27(1)(c). Whether an established custodial environment exists is a preliminary and essential determination. Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), aff’d, 451 Mich 457, 547 NW2d 686 (1996). The trial court must make clear findings on this issue before deciding custody. Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). This includes a request for sole custody when the initial order was for joint custody. See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987). [3]

Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987). [3]

The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23 (see §3.8). Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986). [3]

The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

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

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23

CHILD SUPPORT IN MICHIGAN. Here Ms. Nodine would be entitled to childsupport. Collecting may be an issue.

Under the SPTEA, support means the court-ordered payment of money for a child, including payment of the medical, dental, and other health care expenses; child care expenses; and educational expenses. MCL 552.602(ee)(i). [3]

According to 2008 MCSF 3.04, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children. [3]

For purposes of setting the support obligation, it is presumed that a specified dollar amount per child per year ($345 in 2008 manual) will be spent on ordinary expenses. This annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment. The payee must incur this minimum threshold amount before seeking reimbursement for health care expenses from the payer. [3]

However, the payer may seek to have the payee pay his or her apportioned amount of any health care expenses, regardless of whether the threshold amount has been satisfied. Amounts may be added to compensate for other known or predictable expenses, such as orthodontia or special medical needs. Uninsured health care expenses that exceed the ordinary health care expense amount are extraordinary expenses, which are apportioned between the parents based on the medical percentages set in the support order. [3]

SPOUSAL SUPPORT IN MICHIGAN, if the following elements applied Mrs. Nodine would have this avaiable.

A spousal support award must be just and reasonable under the circumstances of the individual case. MCL 552.23; see Maake v Maake, 200 Mich App 184, 187, 503 NW2d 664 (1993). [3]

Relevant factors in determining whether spousal support should be awarded include the following:

the past relations and the conduct of the parties

the length of the marriage

the ability of the parties to work

the source of and amount of property awarded to the parties

the ages of the parties

the ability of the parties to pay spousal support

the present situation of the parties

the needs of the parties

the health of the parties

the prior standard of living of the parties

whether either party is responsible for the support of others

general principles of equity

Parrish v Parrish, 138 Mich App 546, 554, 361 NW2d 366 (1984).

The court must make findings on each factor that is relevant to the claim before it. Sparks v Sparks, 440 Mich 141, 159, 485 NW2d 893 (1992). [3]

ALABAMA SHERIFF “HOSS” SPEAKS OUT

Baldwin County Sheriff Huey "Hoss" Mack said that while Nodine is the only suspect in the Downs [ THE GIRL FRIEND]case at present, that does not mean that there's enough evidence for an arrest. "Just because you're a suspect doesn't mean that you did it," Mack said. [2]

I AM MOST AMAZED THAT MOBILE ALABAMA COUNTY HAS A REAL SHERIFF CALLED “HOSS”!

Posted here by

Terry R. Bankert

http://attorneybankert.com/

[1]

http://www.wkrg.com/alabama/article/steve-nodines-wife-files-for-divorce/887557/May-17-2010_5-41-pm/

[2]

http://blog.al.com/live/2010/05/impeachment_trial_of_stephen_n.html

[3]

Michigan Family Law Bench Book

She must give back the engagement ring!

2010-05-16T09:05:00.001-05:00

Flint Divorce Lawyer Terry Bankert received the following question from AVVO.
http://attorneybankert.com/

“My boyfriend gave me a promise ring on March 14th,2010 told me that the engagenent ring will come after. Now he wants the promise ring back, what are my rights and do i have yo give it back or was it a gift? He said I aint allowed to move any of me or my childs things out of here till i do. What do I do now?”

The ring is a conditional gift. It is not yours.

Some sources say you must give it back. “The engagement period is often a time of euphoria and bliss as two individuals build a relationship and contemplate one of the most important institutions in human society - marriage. ... A majority of jurisdictions, to include Michigan Meyer v. Mitnick, 244 Mich. App. 697 (Mich. Ct. App. 2001),
hold that where an engagement gift is given to a donee in contemplation of marriage, although absolute in form, it is conditional; the donor is entitled to return of the engagement gift upon breach of the engagement. ... Prior to the surge of modern "no-fault" divorce proceedings, a majority of jurisdictions held or recognized that where the donor breaks the engagement, the donee has the right to possess the engagement ring or to recover its value. ... The donor had filed a complaint in replevin alleging a conditional gift of a diamond engagement ring to the donee, where the donor had terminated the engagement one year later. ... While a majority of lower courts recognize that where the donor breaks the engagement, the donee has the right to possess the engagement ring, it is important to recognize that these decisions predate the courts' extension of the policy that removes fault-finding from the personal-relationship dynamics of marriage and divorce to encompass that of broken engagements. ... “

TIGER WOODS JOINT CUSTODY & CASE WHERE DAD TRYS TO CHANGE IT

2010-05-12T04:20:00.000-05:00

Child Custody Issues discussed by Flint Divorce Lawyer Terry Bankert:

TO PARENTS ORDER FOR CUSTODY AND KEEPING IT ARE CRITICAL

We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]

And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren

and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]

Divorce;

DID YOU KNOW:

Grounds for divorce.

“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]

HOW MANY TIMES IS THIS PART VIOLATED?

The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]

Child custody;

DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:

There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider

the age of the child,

the physical environment, and

the inclination of the custodian and the child as to the permanency of the relationship.

The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]

THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS

Best interests of the child.

The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.

The court must consider each factor and make findings on the record.

The factors need not have equal weight; the court determines the weight of each factor.[3]

Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]

MCL 722.28; Berger v. Berger; Brausch v. Brausch;

Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]

Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;

Vodvarka v. Grasmeyer [1]

SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:

1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;

2. Defendant now works three days a week; and

3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.

Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]

HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE

Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]

WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT

In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]

NO CHANGE OF CIRCUMSTANCES

Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]

POOR PRESENTATION ON FATHERS PART

We observe that plaintiff has abandoned this issue on appeal by failing to properly brief

it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]

DIVORCED WITH FOUR CHILDREN

The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]

MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING

The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]

DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE

He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]

STEP MOMMY GROWING DEMANDS?

Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]

DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO

Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]

OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING

The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]

THIS SHOULD BE ABOUT THE CHILDREN

Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]

DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM

His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]

It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]

Posted Here 5/11/10
Terry R. Bankert
http://attorneybankert.com/

See:

[1], from e-journal

Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM

e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher

[CAPITALIZATIONS and trb are Terry Bankerts comments]

[2] See [1] from the case

[3]

Michigan Family Law Benchbook

[4]

http://celebs.gather.com/viewArticle.action?articleId=281474978227525

GrandParent visitation

2010-05-11T07:56:00.000-05:00

MEMORANDUM

GRANDPARENTS RIGHTS

5/11/2010

Grandparenting Time

Source Michigan Family Law Bench Book

A. When a Grandparent May Seek an Order

Legislation was passed in 2005 restating Grandparents rights . Under the amended statute, MCL 722.27b, a grandparent may seek grandparenting time for one of the following reasons. These elements are here restated in the form a question .

GRANDPARENTS NAME

YOUR CHILD

THE OTHER PARENT OF YOUR GRAND CHILD

THE NAME (S) OF GRAND CHILDREN.

1

2

3

4

(a) IS an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court?

[]NO

[]YES. [] COUNTY GENESEE [] COUNTY OTHER

(b) ARE the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled; [] NO, []YES, WHAT COUNTY

(c) IS the child’s parent who is a child of the grandparents is deceased;[]NO[]YES

(d) HAVE the child’s parents have never been married, they are not residing in the same household, and paternity has been established;[]NO[]YES

(e) HAS legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; []NO[]YES, WHO

(f) HAS THE PRANDPARENTin the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order.[]NO[]YES, EXPLAIN

MCL 722.27b(1).

The statute creates a presumption that a fit parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child’s mental, physical, or emotional health.

WILL THE CHILDS PARENTS OPPOSE YOUR SEEKING GRANDPARENTING TIME?[]NO[]YES, WHY

To rebut the presumption, a grandparent must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time creates a substantial risk of harm to the child’s mental, physical, or emotional health.

WHY WOULD YOUR GRANDCHILDREN NOT SEEING YOU CAUSE HARM TO THEM? DESCRIBE,

If the grandparent does not overcome the presumption, the court will dismiss the action. MCL 722.27b(4)(b). The court may also dismiss the action if two fit parents sign an affidavit stating that they both oppose an order for grandparenting time. MCL 722.27b(5).

To ensure that the statute is not found unconstitutional, the legislature included an alternative burden of proof. If the current preponderance of the evidence test is successfully challenged in an appellate court, the statute will convert to a clear and convincing evidence test. MCL 722.27b(4)(c).

The statute survived an as-applied constitutional challenge in Keenan v Dawson, 275 Mich App 671, 739 NW2d 681 (2007) (trial court’s decision to award grandparenting time, which was based on evidence and in consideration of statutory presumption in favor of defendant’s decision, did not improperly interfere with defendant’s constitutional right to raise child as he sees fit). The statute also survived substantive due process, procedural due process, and equal protection claims in Brinkley v Brinkley, 277 Mich App 23, 742 NW2d 629 (2007) (grandparents have no fundamental constitutional right to relationship with their grandchildren, nor do grandchildren have fundamental right to maintain relationship with their grandparents against their parents’ wishes).

If the court finds that a grandparent has met the standard for rebutting the presumption, the court will consider whether it is in the best interests of the child to enter an order for grandparenting time. In determining the best interests of the child, the court will consider the ten factors set forth in MCL 722.27b(6).

The court shall consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that it is in the best interests of the child to enter a grandparenting time order, the court shall enter an order providing for reasonable grandparenting time of the child by the grandparent by general or specific terms and conditions. In determining the best interests of the child under this subsection, the court shall consider all of the following:

DESCRIBE THE FOLLOWING

(a) The love, affection, and other emotional ties existing between the grandparent and the child.

(b) The length and quality of the prior relationship between the child and the grandparent, the role performed by the grandparent, and the existing emotional ties of the child to the grandparent.

(c) The grandparent's moral fitness.

(d) The grandparent's mental and physical health.

(e) The child's reasonable preference, if the court considers the child to be of sufficient age to express a preference.

(f) The effect on the child of hostility between the grandparent and the parent of the child.

(g) The willingness of the grandparent, except in the case of abuse or neglect, to encourage a close relationship between the child and the parent or parents of the child.

(h) Any history of physical, emotional, or sexual abuse or neglect of any child by the grandparent.

(i) Whether the parent's decision to deny, or lack of an offer of, grandparenting time is related to the child's well-being or is for some other unrelated reason.

(j) Any other factor relevant to the physical and psychological well-being of the child.

The parent of a father who has never been married to the child’s mother may not seek an order for grandparenting time unless the father completes an acknowledgment of parentage, a court issues an order of filiation, or the father is determined to be the father by a court. MCL 722.27b(2). Further, the parent of a putative father may not seek grandparenting time unless the putative father has provided substantial and regular support or care in accordance with his ability to provide the support or care.

B. Procedure

HAVE YOU SOUGHT GRANDPARENTING TIME IN THE LAST TWO YEARS []NO[]YES, DESCRIBE

Under the grandparenting time statute, a grandparent may not file more than once every two years seeking a grandparenting time order. If there is a showing of “good cause,” the court may consider a filing despite the two-year restriction. The court may order reasonable attorney fees to the prevailing party. MCL 722.27b(8).

A request for grandparenting time is initiated either by filing a motion, if the circuit court has continuing jurisdiction over the child, or if the circuit court does not have continuing jurisdiction, by filing a complaint in the circuit court for the county where the child resides. MCL 722.27b(3). The motion or complaint must allege that the parent’s denial of grandparent visitation creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b). The motion or complaint must be accompanied by an affidavit setting forth facts supporting the requested order. MCL 722.27b(4)(a).

The grandparent is obligated to give each person with legal custody of the grandchild notice of the motion or action. Parties with legal custody of the grandchild may file opposing affidavits. Id.

A party may request a hearing on the motion or complaint, or the court may order a hearing sua sponte. If a hearing is requested, the court must order it. At the hearing, any party submitting an affidavit or a counter affidavit must be “allowed an opportunity to be heard.” Id.

The statute directs that a “fit” parent’s decision to deny grandparenting time is presumed not to create a “substantial risk of harm to the child’s mental, physical, or emotional health.” To rebut this presumption, the grandparent seeking visitation must prove by a preponderance of the evidence that the parent’s decision to deny grandparenting time does create such a risk. If the grandparent cannot overcome the presumption, the request for visitation must be denied. MCL 722.27b(4)(b).

If the grandparent successfully rebuts the presumption that the parent’s denial of visitation does not create such a substantial risk, the court moves to the second step of the two-step process. Specifically, if the court finds that the grandparent has rebutted the presumption, it must then consider whether it is in the best interests of the child to enter an order for grandparenting time. If the court finds by a preponderance of the evidence that this is the case, the court must enter an order for “reasonable grandparenting time.” MCL 722.27b(6).

Alternatively, if the grandparent overcomes the presumption, the court may refer the request for grandparenting time to domestic relations mediation, governed by MCR 3.216. If the matter is referred to Friend of the Court alternative dispute resolution, but the Friend of the Court is not able to reach a voluntary resolution within a “reasonable time,” the court itself must hold a best interests hearing. MCL 722.27b(7). The new law does not suggest any time line that would satisfy the reasonable time standard.

The court must make a record of its analysis and findings, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

C. Modification or Termination of a Grandparenting Time Order

MCL 722.27b provides that a court may not modify or terminate a grandparenting time order unless it finds by a preponderance of the evidence, on the basis of facts arising since the entry of the grandparenting time order or facts that were unknown before the order, that there has been a change of circumstances of the child or the child’s custodian and that modification or termination of the existing grandparenting time order is needed to avoid a substantial risk of harm to the mental, physical, or emotional health of the child. MCL 722.27b(11). The court must a make a record of its analysis and findings regarding whether an existing grandparent visitation order should be modified or terminated, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

A court may not prevent a parent from changing a child’s domicile solely to allow the exercise of grandparenting time. MCL 722.27b(9).

Absent a showing of good cause, a grandparent is barred from filing an action or motion for grandparenting time more than once every two years. However, if the court finds “good cause,” it may permit more than one motion or action within this two-year period. MCL 722.27b(8). The court must make a record of its analysis and findings regarding whether good cause to file a premature request for visitation exists, including the reasons for granting or denying the visitation request. MCL 722.27b(12).

Posted here

05/11/2010

Terry Bankert

http://www.attorneybankert.com/

WILL YOU GET IN TROUBLE IF YOU STOP VISITATION

2010-05-07T03:26:00.000-05:00

Flint Divorce Lawyer Terry Bankert was asked the following question through AVVO.

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits. She currently is not allowing my ex to go to her house due to various thefts and drama. During the past six months she has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she only has come to see him about half the time. Recently she hasn’t came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

First I will restate it to clearly identify the actors for this answer and state several assumptions.

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits of my son with my sons mother.

ASSUMPTION Because there is an ongoing protective services case and she has a case worker it is assumed that there is an active CPS case with a placement with the father and mothers parenting time is supervised at the maternal grandmothers home.

She, my ex- mother in law, currently is not allowing my ex wife to go to her , the ex-mother in law, house due to various thefts and drama.

During the past six months she, the ex wife, has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she ,the ex wife, only has come to see him about half the time.

Recently she , the ex wife, has not came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

The writer asked

“Can my ex get me in trouble for not sending my son to his supervised visits”

RESTATED Will the father be in violation of a court order if he does not send his son to the maternal grandmothers home as ordered in a child protective proceeding as ordered by the court at probably a contested pretrial. YES

ASSUMPTION The father has not denied the child to the maternal grand mother for the supervised parenting time.

The father will not be “ in trouble” if is the grand mother in breech. If the child has a loving relationship with the grand mother why stop sending the child. The grand mother will have to explain her actions at the next contested pretrial. The father should contact the case worker directly to establish that he is not withholding the child. The father should monitor the child protective proceedings.

Child protective proceedings and their orders are temporary in nature unless there is an order for termination of parental right. The domestic order that establishes parentage, child custody and parenting time is permanent. It is superseded by the Child protective order but will return when the child proactive case is closed. The father if he does not already have it should seek a change in custody of the child to him self and supervised parenting time to the mother.

For further explanation please contact me directly.

Terry Bankert

http://attorneybankert.com/

Articles on Family Law with free newsletter at

MICHIGAN FAMILY LAW ADVOCATE

http://terrybankert.blogspot.com/

To find your Michigan Court House or Friend of the Court

http://dumpmyspouse.com/

CHILD SUPPORT RAPPER NAS, JUSTICE, AND A MICHIGAN CASE

2010-05-02T13:15:00.001-05:00

Flint Divorce Lawyer Terry Bankert discusses Domestic Issues that Could be found in Genesee County Family Court or Your Court:

DID YOU KNOW :
... Arrearages and Civil Contempt A system in which child support awards are commonly set beyond the parent's ability to pay, modification procedures are neither realistically available nor likely to address inequities, and retroactive correction is disallowed, inevitably results in the accrual by many parents of large and unpayable arrearages. [3]

DID YOU KNOW… in contempt, the low-income obligor is rarely a candidate for civil incarceration because of the likelihood that he or she is unable to pay the hefty sum represented by the accumulated arrearages, or even a portion thereof that may be set by the court as the purge amount. [3]

DID YOU KNOW... Indigents are especially unlikely to appeal civil contempt orders, given their lack of access to appellate counsel in most states and the brevity of the typical contempt sentence.[3]

DID YOU KNOW ... In civil contempt proceedings, unlike those for criminal contempt, absence of willfulness is treated as a defense, and the initial burden is on the contemnor to plead and present evidence of his or her inability to comply with the order. ... [3]

IF CONTEMPT OF COURT WITH POSSIBLE JAIL CAN FACE A CELEBRITY IT COULD HAPPEN TO YOU.

Born Nasir Jones Rapper Nas was cleared of a civil contempt charge on Monday in connection with his divorce from Kelis. According to a statement from his spokesperson released on Wednesday, "The contempt charges that were filed against Nas earlier this year in conjunction with his ongoing custody battle were thrown out yesterday by Judge David Cunningham III presiding over the case. [4]

Nas has paid all of the child support owed in full. His legal counsel today also settled on additional undisclosed financial terms, which included attorneys' fees and spousal support." The contempt charges were dismissed after Nas paid nearly $50,000 in child support to estranged wife Kelis,[4]

ISSUES DISCUSSED IN THE ARTICLE BELOW:

Conviction for failing to pay child support (MCL 750.165); Exclusion of evidence the defendant was unable to pay the court-ordered child support; People v. Adams; Due process; City of Port Huron v. Jenkinson;

Whether defendant was entitled to a new trial on the basis her rights under Michigan's Due Process Clause were denied by the trial court's order prohibiting her from presenting inability to pay as a defense;

Constitutionality of MCL 750.165;

Ineffective assistance of counsel; People v. Mack; Impermissible collateral attack on the underlying support order; People v. Howard; MCL 600.1021;

The Support & Parenting Time Enforcement Act (MCL 552.601-.650); MCL 552.16(1); MCL 552.605; MCL 552.603(2); MCR 3.205(C); The actus reus element of the crime; People v. Monaco; Right to present a defense; People v. Kurr; People v. Hayes; People v. Hackett; Relevant evidence (MRE 401);

Prosecutorial misconduct; People v. Dobek; People v. Unger; People v. Thomas; People v. Rodriguez; People v. McLaughlin; People v. Watson;

"Plain error" review; People v. Brown

[1]Court: Michigan Court of Appeals (Unpublished 4/20/2010)

Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FH

e-Journal Number: 45583

Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis

Concluding the defendant's reliance on Jenkinson was misplaced because unlike the defendant in Jenkinson, she was prosecuted for failing to comply with a court order entered after a judicial determination was made she had the financial means to comply with the court order, the court rejected her claim MCL 750.165 was unconstitutional and affirmed her conviction for failing to pay child support.

MOTHER IN FAMILY COURT WAS ORDERED TO PAY CHILD SUPPORT HERE IN CIRCUIT COURT SHE IS BEING PUNISHED FOR NOT PAYING

Mother who is the Defendant was ordered to pay her ex-husband (E) child support after their divorce because he was awarded custody of their three minor children. The child support was initially set at $54 a month. Later, husband sought an increase after he learned mother had purchased a home worth about $500,000 by securing 2 mortgages in her name, for $2,000 a month and $1,000 a month, respectively. She also purchased a new vehicle. After hearings on the matter, the FOC recommended income of $5,000 a month be imputed to defendant consistent with her standard of living and her child support obligation be increased to $1,131 a month, retroactive to June 1, 2005. [1]

The Oakland County Circuit Court trial court in the child support case adopted the recommendation after holding a hearing. [1]

Mothers payment history was very sporadic. She paid nothing in 2006 and $488.85 in 2007. The amount of arrearage as of February 29, 2008 was $40,182.71. [1]

FELONY NON SUPPORT

Felony charges for failure to pay child support were filed against her in March 2008. The trial court granted the prosecution's motion in limine to prevent defendant MOTHER from offering any evidence related to her alleged inability to pay the ordered child support. [1]

THE FOC ASSUMED THE ABILITY TO PAY

On appeal, defendant argued, inter alia, she was entitled to a new trial because her rights under Michigan's Due Process Clause were denied by the OAKLAND COUNTY CIRCUIT trial court's order prohibiting her from presenting her inability to pay as a defense. [1]

THE FAMILY COURT SAID SHE COULD PAY IT SHE SHOULD HAVE APPEALED THERE

The court disagreed, concluding unlike the defendant in Jenkinson, the duty imposed on defendant was adjudged possible for her to perform. She was a party to civil proceedings involving the modification of her child support obligation, which gave her ample opportunity to present evidence of her ability or inability to pay an increased amount of child support. [1]

THE FAMILY COURT SAID WITH THESE BILLS YOU CAN PAY MORE SUPPORT.

In accordance with the evidence of her standard of living, she was adjudged capable of paying $1,131 in child support a month. "Thus, unlike the defendant in Jenkinson, the State did not impose upon her a duty that was impossible for her to perform." [1]

YOU HAVE TO APPEAL A COURT ORDER IN THE COURT THAT MADE THE ORDER NOT ANOTHER EQUAL OR LESSER COURT.

The court concluded her argument was actually an impermissible collateral attack on the underlying support order. Affirmed. [1]

Here, defendant was prosecuted for the criminal offense of violating MCL 750.165 which

states, in pertinent part:

(1) If the court orders an individual to pay support for the individual’s

former or current spouse, or for a child of the individual, and the individual does

not pay the support in the amount or at the time stated in the order, the individual

is guilty of a felony punishable by imprisonment for not more than 4 years or by a

fine of not more than $2,000.00, or both.[1]

On September 29, 2008, the prosecution filed a motion in limine seeking to prevent

defendant from offering any evidence pertaining to her alleged inability to pay the ordered child support. The prosecution argued that, as this Court held in People v Adams, 262 Mich App 89; 683 NW2d 729 (2004), the failure to pay child support in violation of MCL 750.165 is a strict liability offense; thus, evidence of an alleged inability to pay is immaterial and irrelevant. The trial court agreed and granted the motion in limine, holding that “inability to pay is not a defense. Something should have been raised earlier for a modification, but it wasn’t.” A jury trial began on November 14, 2008, and defendant was convicted as charged.[1]

HIGHLIGHT: Each day in the United States thousands of persons are jailed on charges arising from failure to pay court-ordered child support. Some of them have been convicted of contempt of court, a crime based on willful defiance of the court order. However, most are incarcerated pursuant to the court's civil authority to jail contemnors as a means of coercing compliance with the order. In the case of the civil contemnor, confinement generally occurs without the procedural protections that are available as a matter of right in criminal proceedings. A finding of ability to pay the ordered support is a necessary precedent to both a finding of contempt and the penalty of coercive incarceration. Otherwise, the incarceration can only be characterized as punishment for being poor. Yet many incarcerated child support obligors are indigent, with irregular employment, limited earning potential, no real assets, and questionable ability to pay. A variety of systemic and judicial flaws have coalesced to create a fertile environment for unjustified incarcerations. Prominent among these are serious deficiencies in current civil contempt practice. Restoration of equity and due process to this area will require an array of adjustments in federal and state law, agency practice, and judicial process.[3]

Posted here by

Terry Bankert

http://www.attorneybankert.com/

see

[1]

Court: Michigan Court of Appeals (Unpublished 4/20/2010),Case Name: People v. (L), No. 290218, Oakland County Circuit Court, LC No. 2008-220669-FH,e-Journal Number: 45583,Judge(s): Per Curiam - Fitzgerald, Cavanagh, and Davis

[2] HEADLINES and cited comments by Terry Bankert A Michigan Attorney www.attorneybankert.com

[3]

NAME: Elizabeth G. Patterson*
BIO: * Professor, University of South Carolina School of Law. Professor Patterson was Director of the South Carolina Department of Social Services from 1999 through 2003.
18 Cornell J. L. & Pub. Pol'y 95

[4]

http://www.mtv.com/news/articles/1637082/20100415/nas.jhtml

FLINT DIVORCE LAWYER ANSWERS Q; WHEN PAYING CHILD SUPPORT FOR NOW ADULT CHILD DO I GET VISITATION.

2010-05-01T10:01:00.000-05:00

QUESTION:My step-son is turning 18 in a few short days. He is a junior in high school. Order states that husband must continue to pay child support until he graduates(which we have no porblem doing), but now mother says the son doesn't have to come to visit on the weekends and/or holidays and the Order states because he is no longer a minor. Is this true? She will not encourage or facilitate meetings between son and I and in fact prevents them as well.

First I will look at how other attorney have responded. The CAPITALIZATION IS MINE.

One attorney responded.

I BELIEVE THE QUESTIONER KNEW THIS

A minor automatically becomes emancipated when he or she turns 18 by operation of law. Michigan law defines "emancipation" as "termination of the rights of the parents to the custody, control, services and earnings of a minor." Therefore, you cannot force your stepson to visit you. However, the statute relating to the emancipation of minors also states that it "does not affect obligations of support imposed under other laws of this state." Thus, your husband must continue to pay child support according to the court order even though your stepson is emancipated.

LATE STAGE PARENTAL ALIENATION. THESE ARE POORLY UNDERSTOOD BIG WORDS.

Another attorney responded.

Also, this appears to be a case of very late-stage "parental alienation" which is too bad. Your husband should not give-up trying to maintain contact with his son. He will not be hiding in the folds of his mother's skirt forever. This is a long-term project. For some people, they don't have the maturity and independence to reconnect with a wrongfully alienated parent until their late 20s. In the area of family law, we see this all too often. Good luck.

SO, WHAT SHOULD FATHER DO?

Wait and always be available. Let the young child about to be a legal adult have time to “man-up“. Father should led by example.

The 18th birthdate is not a magic date that erases the emotional harm of the divorce. Your focus should be on the child/adult off spring. There are Studies that indicate the most damaging effect of divorce on children arises early in their adult life. Did you know many children of divorce have trouble finding a mate and creating lasting relationships and marriages themselves. Give the young man some space. Keep the lines of communication open between father and son. Step mom should not complicate the emotional issues for the child/adult by advocating her needs.

THIS IS AN AVVO QUESTION ANSWERED ON 5/1/2010

BY Terry Bankert

http://www.avvo.com/legal-answers/son-turning-18--support-will-continue-but-what-abo-259210.html

Child Custody Sandra Bullock, Jessie James ,Gosslin , Rodgriguez and the Michgian Court of Appeals

2010-04-30T04:32:00.001-05:00

Divorce Lawyer discusses several Divorce Issues:

CHILD CUSTODY IN THE NEWS AND A RECENT OPINION OF THE MICHIGAN APPELLATE COURT

Child Custody battles are common place. The most notable are media celebrities. If it can happen to them it can happen to you.

JON GOSSLIN STOPS CUSTODY BATTLE WITH KATE GOSSELIN

According to TMZ.com the octodad is planning to drop his custody and child support lawsuit against ex Kate Gosselin.[2]

He has reportedly hired a new lawyer since firing his former attorney, Anthony List, the man who called Kate an "absentee mom" and filed legal papers on behalf of Jon seeking full custody of their kids.[2]

"Jon has retained a new lawyer and they're now trying to work out an arrangement that is both private and between themselves," a source told E! Online.[2]

Since there is a noticeably large difference between Jon and Kate's income, the exes are reportedly working together to revise the custody and child support agreement that is currently in action.[2]

SANDRA BULLOCK TO NOT SEEK CUSTODY OF THE CHILDREN OF JESSE JAMES

Actress Sandra Bullock will not be fighting for the custody of love rat husband Jesse James children.. [4]

‘The Blind Side’ actress dumped Jesse after a string of his affairs surfaced last month. And despite her mother -role in the lives of his three children, Bullock’s rep revealed that there would not be a custody battle. [4]

RODRIGUEZ WINS CUSTODY CHANGE AND GETS HIS SON

… because the two weren't married, Tina Helfer had automatic custody and legally Richard Rodriguez could do nothing to get his child back.

"I had no rights," Rodriguez says.[3]

The tables turned in November of 2009 and the court awarded Rodriguez full custody. [[3]

As for Helfer, the Berkshire County District Attorney's office says she won't be facing charges. The office says the "woman had legal custody of Ricky when she left Massachusetts. A year and a half later we hear about a custody change. Our understanding is that this woman had no notice of the change. Therefore, she is not knowingly involved in any criminal violation."[3]

THIS FAMILY LAW CASE FROM WAYNE CIRCUIT COURT FAMILY DIVISION SHOWS THAT WHEN ONE PARENT DENYS PARENTING TIME CUSTODY CAN BE LOST.

Custody; The Child Custody Act (MCL 722.21 et seq.); Fletcher v. Fletcher; Phillips v. Jordan; Reed v. Reed; [1]

Exclusion of evidence related to the defendant-mother's criminal history; [1]

Distinction between evidence to be considered in evaluating the statutory "best interest" factors (MCL 722.23) and evidence admissible in determining whether a "change of circumstances" has occurred; Brausch v. Brausch; MRE 609(c); [1]

Challenges to the trial court's findings on best interest factors (b), (c), (f), and (h); [1]

Principle the best interest factors do not need to be given equal weight; McCain v. McCain; Pierron v. Pierron; Challenge to the trial court's finding "clear and convincing evidence" supported modifying custody; MCL 722.28; MCL 722.27(1)(c); [1]

Whether the trial court considered the parties' ability to cooperate in granting joint legal custody; MCL 722.26a; Fisher v. Fisher; Nielsen v. Nielsen; The parenting time schedule.[1]

The Michigan Court of Appeals decided the trial court’s ( Wayne Circuit Court Family Division) factual findings on the best interest factors were not against the great weight of the evidence, the court held the trial court did not abuse its discretion in modifying custody to grant the parties joint legal and physical custody of their two minor children and setting a parenting time schedule. [1]

THIS IS A POST JUDGEMENT ACTION

The parties separated in 2005.

WHILE DIVORCE UNDERWAY MOM GETS IN FIGHT WITH DADS GIRLFRIEND

The children resided with defendant -MOTHER, until July 2006 when, during the
pendency of the divorce proceedings, defendant was arrested and charged with domestic
violence, assault and robbery pertaining to an incident involving plaintiff and his girlfriend. Following this incident, plaintiff was granted temporary physical custody of the minor children.[1]

DAD GET GIRLFRIEND AND CHILD

After this incident, plaintiff-FATHER was granted temporary physical custody of the children.[1]

DIVORCE JUDGE THOUGHT MOM GOING TO JAIL

In April 2007, the parties were divorced via a consent judgment which, in anticipation of defendant's incarceration due to the July 2006 incident, awarded plaintiff -FATHER temporary legal custody with defendant to have parenting time. [1]

MOM THOUGHT THAT WHEN OUT OF JAIL SHE COULD GET HER CHILD BACK

The judgment provided defendant was to petition the trial court for reinstatement of joint legal custody and additional parenting time after the end of her jail sentence and on showing her compliance with any probation requirements. [1]

MOM IN JAIL 9 DAYS THEN ON TETHER

She was sentenced to a year in jail with work release, but was only required to serve nine days and was released on a tether. She reportedly complied with her probation requirements. [1]

DAD SAID NO PARENTING TIME FOR DAD

Despite the fact defendant did not remain incarcerated and was available, plaintiff denied her parenting time. [1]

COURT FOUND DAD IN CONTEMPT

While the parties entered into a consent order detailing defendant's parenting time, the trial court later found plaintiff-FATHER in contempt for failing to cooperate and for ongoing violation of the parenting time schedule. [1]

In essence, the trial court determined that defendant’s compliance with the terms of her

probation in conjunction with the “ongoing conflict between the parents . . . and the apparent interference . . . regarding mother exercising any parenting time with the children, and the impact that such conflict was having on the minor children” necessitated a review of the existing custody arrangement.[1]

MOM SAYS JUDGE THIS IS NOT WORKING SOMETHING DIFFERENT HAS TO BE ORDERED

Defendant-MOTHER filed a motion for change of custody, seeking joint legal and physical custody. [1]

JUDGE SAYS TO MOM THINGS HAVE CHANGED AND I WILL LISTEN TO WHAN YOU HAVE TO SAY

The trial court, Wayne Circuit Court Family Divison, determined proper cause and a sufficient change in circumstances existed to conduct an evidentiary hearing, and properly applied a clear and convincing evidence standard to decide if a modification in custody was in the children's best interests. [1]

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

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

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

have materially changed. [Brausch v Brasuch, 283 Mich App 339, 355-356; 770

NW2d 77 (2009), citing Vodvarka v Grasmeyer, 259 Mich App 499, 512-514;

675 NW2d 847 (2003) (emphasis added).][1]

NOT ALL FACTORS IN LIFE ARE EQUAL IN IMPORTANCE

The court MICHIGAN COURT OF APPEALS noted while plaintiff - FATHER contested the trial court's finding on factor (f), this factor was found to be in his favor and it appeared he misconstrued the precept the factors do not need to be given equal weight. [1]

AFTER INITIAL HURDEL IS MET BY THE CHANGING PARTY THE COURT MUST ANALYIZE THE STATUATORY BEST INTERES FACTORS

As to the other challenged factors, the court concluded the trial court's findings the parties were equal on (b) and (h) while (c) favored defendant were not against the great weight of the evidence. Factor (j) was clearly important to the trial court in weighing the children's best interests. [1]

I THINK J IS THE MOST IMPORTANT SAID THE JUDGE

The trial court, WAYNE, ruled (j) strongly favored defendant and was entitled to "significant weight" in the overall balancing of the factors. [1]

Finding the existence of an established custodial environment with plaintiff, the trial

court properly applied a clear and convincing evidence standard in determining whether an alteration in custody was in the best interests of the children. In evaluating the best interest factors, the trial court found that the parties were equal on seven of the 12 factors.2 Plaintiff was favored on factors (d) [time child has lived in a stable environment] and (f) [moral fitness of the parties]. Defendant was also favored on two factors: (c) [capacity to provide for material needs of child] and (j) [willingness to cooperate and foster relationship]. Although the trial court met, in camera, [ IN JUDGES OFFICE PROBABLY] with both minor children, only the older child was determined to be of sufficient age to express a reasonable preference.3 Following its analysis of the best interest factors, the trial court concluded that custody would be modified so that plaintiff and defendant would have joint legal and physical custody of the minor children and a parenting schedule was delineated. [1]

Clearly, of significant importance to the trial court in weighing the best interests of the

minor children was factor (j), which comprises “the willingness and ability of each of the parties to facilitate and encourage a close and continuing parent/child relationship between the child and the other party.” Reviewing the history of these parties, the trial court noted that defendant had provided “liberal access” of the minor children to plaintiff when they were originally in her custody. However, citing the history of interaction following the award of physical custody to plaintiff and the necessity of a show cause hearing resulting in finding plaintiff in contempt of court for repeated violation of parenting time orders, the trial court emphasized that plaintiff was

found to have “demonstrated a clear pattern of denying parenting time . . . despite the negative impact that this has on the children.” In addition, the trial court observed that plaintiff had “continued to interfere” with defendant’s parenting time with the minor children through scheduling their participation in various activities and camps during defendant’s “scheduled weekends” without consultation or agreement beforehand. The trial court also determined that plaintiff was unwilling to promote the relationship between defendant and the minor children by systematically denying her access to educational and health information and appointments or activities, precluding her participation in meaningful aspects of the children’s lives. As such, the

trial court ruled that this factor strongly favored defendant and would be given “significant weight” in the overall balancing of the best interest factors in evaluating the modification of custody.[1]

MOM WINS AND GETS CUSTODY BACK

The court concluded the trial court's decision was based on clear and convincing evidence the change in custody would facilitate an ongoing relationship between the children and both parents, and was in the children's best interests. Affirmed. [1]

Posted here 4/29/10 by

Terry R. Bankert

Flint Divorce Attorney

http://attorneybankert.com

[1]

Court: Michigan Court of Appeals (Unpublished, 04/20/2010)

Case Name: G v. G, e-Journal Number: 45601, No. 293817 Wayne Circuit Court Family Division Michigan, LC No. 06-605226-DM

[2]

http://www.nydailynews.com/gossip/2010/04/28/2010-04-28_jon_gosselin_drops_custody_lawsuit_against_exwife_kate_couple_ordered_to_take_pa.html

[3]

http://www.fox23news.com/news/local/story/Father-and-son-reunited-after-custody-battle/m6JPjB8Wg06hNjZcoATQyA.cspx

[4]

http://timesofindia.indiatimes.com/entertainment/hollywood/news-interviews/Sandra-will-not-battle-for-Jesses-kids-/articleshow/5868052.cms

Jessie James Sandra Bullock divorce and adoption.

2010-04-28T21:47:00.000-05:00

Our lives are a bumpy road with happiness being fleeting. Why do we do what we do on a give day. Sandra Bullock and Jessie James spent several years qualifying for adoption of a baby, out of site of the press. The baby adopted in January is African American. Bullock then wins award for nurturing another African American child in a movie. She found her base, Jessie James found several of his. But the aftermath and their conduct Class in discretion of her part and class of responsibility acceptance on his part show them both to be greater than the events of scandal we all following with shallow motive. I view them both as larger now. We can all take lesson on their role model of how to conduct oneself in a divorce. Children and privacy first.

FILING FOR DIVORCE

US Oscar- winning actor Sandra Bullock has filed for divorce to end her five-year marriage to Jesse James, she told People magazine in remarks published on its website yesterday.[1]

In Michigan the requirements of a divorce petition include.

Required provisions for divorce judgments.

All divorce judgments.

A determination of each party’s rights in insurance on the life of the other party.

A release of dower rights.

A determination of each party’s rights in pension, annuity, or retirement benefits; contributions to a pension, annuity, or retirement plan; and contingent rights in unvested benefits.

The parties’ rights in property.

A provision granting, reserving, or denying spousal support.

If spousal support is no modifiable, a provision to that effect.

Divorces with minor children—additional required provisions.

A prohibition against moving the children’s residence outside Michigan or, in the case of a joint custody arrangement, a relocation agreement or mandated language prohibiting moving the children’s residence more than 100 miles away.

A requirement that the custodial parent promptly notify the Friend of the Court in writing of any change of the children’s address.

A statement by the court declaring the children’s inherent rights and establishing the rights and duties as to the children’s custody, support, and parenting time.

CHANGE IS SCARY

The Oscar-winning actress said in an interview published on People magazine's website that she had filed for divorce from Jesse James: "I'm sad and I am scared," she said[2]

ADOPTION AND DIVORCE

Sandra Bullock admitted yesterday that she and her now-estranged husband adopted a baby boy three months before she found out he was cheating on her.[2] The Child is 3½-month-old Louis Bardo Bullock, and she now planned to raise him as a single mother.[1]

The surprise, reported by People magazine, is the existence of an adoption in process. Bullock and James, 41, had planned to adopt Louis, a 3-month-old African-American baby from New Orleans. Bullock now plans to complete the adoption as a single parent, according to People.[3]

THE COUPLE TOOK HOME THE BABY IN JANURARY

Bullock and James took baby Louis Bardo Bullock home in January. [2]

JESSIE MANS UP

James, a custom motorcycle manufacturer and reality TV star, said last month that he took full responsibility for his actions, although he did not comment on allegations of an affair with a California tattoo model.[1]

DIVORCE DOES NOT HAVE TO STOP LOVE

Of her relationship with James's three children, Bullock said: "I don't want to know what life is like without those kids." [2]

JESSIE WILL BE INVITED TO BE PART OF THE BABYS LIFE

Looking ahead to life without James, Bullock said, "I really don't know how our paths will intersect in the future, but the father I have known Jesse to be with all the kids is one that I hope Louis can experience one day, no matter how Jesse and I go on with our lives." [2]

PROPERTY DIVISION

No protective order has been filed and the division of property, according to the petition, will focus on community ownership. Bullock, who holds property in several states and is perhaps Hollywood's most bankable female star, also owns several Austin businesses, including Bess Bistro on Pecan and Walton's Fancy and Staple. [3]

In Michigan In general, property and debts accumulated through the direct or indirect efforts of the parties during the marriage are marital. Neither party is inherently entitled to a greater share of the marital assets or responsible for a greater share of the marital debts. Separate property should be awarded to the owner spouse. These presumptions may be rebutted.

Mandatory Judgment Provisions

Property division must be discussed in the judgment of divorce in a separate paragraph prefaced by an appropriate heading. MCR 3.211(A). The judgment must address these property interests:

Property division. A division of the real and personal property brought to and acquired during the marriage as well as the parties’ debts. MCL 552.19, .23, .101, .103, .401; MCR 3.211(B)(3); Yeo v Yeo, 214 Mich App 598, 543 NW2d 62 (1995).

Insurance. A statement confirming that the divorce judgment terminates each spouse’s interest as a beneficiary in life insurance on the other spouse’s life or providing otherwise. MCL 552.101(2)–(3); MCR 3.211(B)(1).

Dower. A statement that the divorce judgment satisfies the wife’s dower claims in the husband’s property. MCL 552.101(1); MCR 3.211(B)(1).

Pension, annuity, and retirement benefits. A determination of the rights of both spouses in pension, annuity, or retirement benefits. MCL 552.101(4); MCR 3.211(B)(2).

A consent judgment of divorce provision releasing each party’s rights to the life insurance proceeds of the other party waives a party’s right to a late former spouse’s life insurance proceeds. Sweebe v Sweebe, 474 Mich 151, 712 NW2d 708 (2006); MacInnes v MacInnes, 260 Mich App 280, 677 NW2d 889 (2004).

A divorce or an annulment revokes a will provision naming the former spouse as a beneficiary unless the will specifically provides otherwise. MCL 700.2806–.2809.

JURISDICTION

The petition says she has lived in Texas for at least the previous six months and has been a resident of Travis County for at least 90 days. During much of that time, Bullock remained behind the walls of her Hollywood Hills residence, dodging a battery of paparazzi.[3]

[1]

http://www.irishtimes.com/newspaper/world/2010/0429/1224269287258.html

[2]

http://www.timeslive.co.za/entertainment/article424118.ece/Single-parent-Bullock-loving-it

[3]

http://www.straitstimes.com/BreakingNews/Lifestyle/Story/STIStory_520444.html

FLINT DIVORCE LAW AND TIKI BARBER, he will be thrown for a loss.

2010-04-28T05:34:00.001-05:00

HIS AFFAIR COST HIM CONTRACTS. WILL HIS CHILD SUPPORT CALCULATIONS BE BASED ON HIS CONTRACT LEVEL OF INCOME? YES!

Flint Divorce Lawyer comments on how Tiki Barber was thrown for a loss. If this can happen to a celebrity couple it could happen to your friends , family or you. What if Tiki Barber and Ginny Barber lived in Michigan ?

HE HAS A GIRL FRIEND , WIFE HAS UNBORN TWINS!WHY FILE FOR DIVORCE?

TMZ.com reported today that former NFL star Tiki Barber was shocked to learn his wife Ginny had filed for divorce. A source told TMZ that Barber had been under the impression that neither he nor his wife "would file divorce papers until after the babies were born."[3]

ROMANTIC INTEREST OUTSIDE MARRAIGE

Tiki Barber have you no shame or any concern at all for your estranged wife of 11 years, who used to be your best friend and biggest supporter? Obviously not. You were spotted all over New York City, reports the New York Post, with 23 year-old Traci Lynn Johnson, the former college student turned NBC intern who you preferred over your wife, two little boys and the twins on the way.[1]

HE'S GOT THE BALL, ....AND FUMBLED!
Tiki Barber fumbled his good guy rep when he left his pregnant wife for a blonde hottie, but he's still got his big bucks job on the today show.[2]

DOES MALE CELEBRITY NOW MEAN HE IS PHILANDERING?

The Barbers join a long list of celebrity marriages recently marred by philandering husbands. While Tiki has sort of slid under the radar due to the hype surrounding a few higher profile relationships (ahem, Tiger Woods Elign Woods and Jesse James ( Sandra Bullock), his circumstance is one of the more offensive given that he was cheating on his wife of 11 years while she was pregnant with twins! [3]

DIVORCE SETTLEMENT NEGOTIATIONS

Not only that, you’ve been lowballing Ginny in out-of-court negotiations over financial support, a family friend told the NYPost. ” Tiki refused to give her anything close to what she needs,” the friend told the paper. Guess it’s more important to buy expensive gifts, clothing and take her out to dinner, than take care of sons AJ, 7, Chasen, 6 and your new babies, Tiki. No wonder our Hollywoodlife.com readers voted you THE WORST Dad of 2010 by a wide margin with 55 per cent of the vote. You easily beat out Jon Gosselin and Tiger Woods.[1]
WHY WOULD HE BE SUPRIZED? LOSS OF CONTROL?

Why Barber is surprised by this news is very unclear. His wife, Ginny, is currently 8 months pregnant with twins, and they have been separated for weeks since news of Barber's infidelity (with a much younger woman) surfaced.[3]

ADULTRY BASIS OF MARITAL BREAKDOWN

The divorce papers were filed in the Manhattan Supreme Court Apr. 26 citing “adultery.” Tiki surprised his wife with news about his affair when he told her he was moving out last fall and into a midtown lovenest. [1]
SACKED

"Tiki is a contributor to the 'Today' show," an NBC news spokeswoman told The Daily News on Tuesday, refuting reports that Barber has been sacked by 30 Rock.

SUPRIZED BY GIRL FRIEND

Until, he dropped that bomb on pregnant Ginny, the former football star, who had spoken out about his own father’s philandering, had never dropped a hint to Ginny, that he was unhappy with their marriage, a source told Hollywoodlife.com.[1]

LOST HIS BIGGEST GIG

Barber, 35, also recently lost his gig on NBC's weekly Sunday night football telecast. The network opted not to renew Barber's contract after last season.

TO GIG OR TO SHACK

Barber's ouster from that show appeared to coincide with reports that he'd shacked up with 23-year-old former NBC intern Traci Lynn Johnson.[2]

DOMESTIC ISSUES COST HUSBAND CONRACTS

It’s not surprising that NBC has suspended Tiki from his two jobs as a Sports and Today show correspondent after news about his scandalous behavior broke. Reports are surfacing that the Today show has fired Tiki but NBC and Tiki both will not comment.[1]

WHAT INCOME WILL TIKIS CHILD SUPPORT BE BASED UPON.

A recent Michigan Court of Appeals case may give some guidance.

Michigan Court of Appeals (Unpublished 4-20-2010),Case Name: T v. T Genesee County 04-252661-DM

e-Journal Number: 45575,Judge(s): Per Curiam - Jansen, Cavanagh, and K.F. Kelly

This case looked at Child support; Whether the trial court properly imputed income to plaintiff for the purpose of calculating child support; Rohloff v. Rohloff; Olson v. Olson; 2008 Michigan Child Support Formula (MCSF) Manual 2.01

WILL THE COURT DECIDE THAT TIKI HAS AN UNEXERCISED ABILITY TO EARN?

The Michigan Court of Appeals held the trial court did not abuse its discretion by adopting the referee's recommendation and imputing a $350,000 annual income to plaintiff for purposes of calculating child support where the evidence clearly showed he voluntarily reduced his income when he left the investment banking field and he had an unexercised ability to earn far more than he was presently earning. [SEE 04-252661-DM]

THE JUDGE HAS GREAT DISCRETION WITH YOUR LIFE IN DIVORCE

As to child support, both case law and the MCSF clearly grant the trial court discretion to impute additional, unearned income to a parent. The evidence showed plaintiff earned well over $600,000 in his last year as an investment banker, he had other substantial assets and investments, he continued to receive distributions from his former company (in which he owned equity), and a VE testified he had a current potential to earn at least $350,000 a year based on his experience and training in investment banking. [See Toal]

HE CAN MAKE MORE MONEY. JUST DO IT.

Tiki has the ability to earn more and his child support may be based upon that higher amount.

IN THE MICHIGAN CASE DAD SAID THE GENESEE COUNTY COURT GOT IT WRONG. THE COURT OF APPEALS SAID IT WAS DONE RIGHT. DAD PAYS MORE CHILD SUPPORT.

In Docket No. 291267, plaintiff argues that the circuit court erred by ordering him to pay
child support based on an imputed annual income of $350,000, rather than his true annual
income of $40,000.
DAD QUIT THE INVESTMENT JOB IN 2002
Specifically, plaintiff asserts that although he was formerly an investment banker, earning $350,000 or more per year, he had since given up his investment-banking career and become a school teacher, with a much more meager annual salary. He contends that the referee and circuit court erred (1) by imputing to him his former income as an investment banker rather than his present income as a teacher and coach, (2) by deviating from the Michigan Child Support Formula Manual (MCSF), and (3) by failing to articulate a sufficient reason for deviating from the MCSF. He points out that he had already switched from his former investment-banking career to his new teaching career at the time of the court’s child support determination, and asserts that the facts of this case did not support the court’s imputation of a $350,000 annual salary. Again, we disagree. [see 04-252661-DM]
THE JUDGE ADOPTED A REFEREE DECISION AND THAT IS OKAY
We cannot conclude that the circuit court abused its discretion by adopting the referee’s
recommendation that plaintiff should pay monthly child support based on an imputed annual income of $350,000. Both Michigan’s caselaw and the MCSF clearly grant the circuit court discretion to impute additional, unearned income to a parent. Stallworth, 275 Mich App at 285; 2008 MCSF 2.01(G). It is well settled that “when a party voluntarily reduces or eliminates income, and the . . . court concludes that the party has the ability to earn an income and pay child support, the court does not err in entering a support order based upon the unexercised ability to earn.” Olson v Olson, 189 Mich App 620, 622; 473 NW2d 772 (1991); see also Rohloff, 161 Mich App at 776. In particular, this Court has held that a circuit court may properly consider a party’s “income potential” when determining child support, id. at 770, and that a court does not abuse its discretion “by entering a child support order based upon the income [a party] received
before voluntarily leaving [his or her] employment,” id. at 776. [See 04-252661-DM]

HE MADE A LOT OF MONEY ONCE AND HE CAN DO IT AGAIN

In the case at bar, the evidence established that plaintiff had earned well over $600,000 in
his final year as an investment banker, that he had other substantial assets and investments, and that he continued to receive distributions from Chilmark, his former company in which he owned equity. Moreover, a vocational expert testified that plaintiff had a current potential to earn at least $350,000 per year, based on his training and experience in the field of investment banking. This Court must give due regard to the special opportunity of the referee and circuit court to weigh the testimony and judge the credibility of the witnesses. See In re Miller, 433 Mich 331, 337; 445 NW2d 161 (1989).

In short, the record in this matter adequately supported the referee’s
finding that plaintiff had other assets and investments in addition to his teaching salary, that he continued to receive distributions from his former company, and that he had the present capacity to earn $350,000 per year. Therefore, the circuit court did not abuse its discretion by adopting the referee’s recommendations on this issue and imputing to plaintiff an annual income of $350,000 for the purpose of calculating child support. [see 04-252661-DM]
THE FAMILY PLANNED TO MOVE HE QUIT A JOB THEY MOVED NOW HE PAYS ON WHAT HE IS NOT EARNING

Here, the evidence plainly established that plaintiff voluntarily reduced his income when
he relocated to Michigan and left the investment-banking industry. Moreover, credible
testimony showed that plaintiff had an unexercised ability to earn far more than he was presently earning as a teacher and coach. We simply cannot conclude that the circuit court deviated from the MCSF in this case. Quite the opposite, it appears to us that the court’s decision to impute income to plaintiff fully conformed to the MCSF’s mandates and guidelines, and we must therefore reject plaintiff’s claim to the contrary.2 See 2008 MCSF 2.01(G).[see 04-252661-DM]

PREGNANT WIFE LEFT HOME

Ginny is now home at her Upper East Side apartment and according to sources close to her, she’s very upset – no surprise.[1]

While Barber has been seen squiring Johnson around town and even took her to the Vancover Olympics, his soon-to-be ex-wife is pregnant with twins - and practically trapped in the marital bed.

"There have not been any complications, but her doctor said it's safer for her to stay in her home and stay in her bed," said a source close to the matter. "She's a small woman and she's very pregnant. Aside from visits to her doctor, she's confined to her apartment."[2]

“It’s been an emotional time for her,” says the source. “She is, of course, worried about the health of her unborn twins. It’s a lot to deal with and she is still being closely monitored by her doctors.”[1]

NO SYMPATHY FOR HUSBAND

We wish you well Ginny. Hopefully your louse of an ex will PAY bigtime![1]

See

[1]

http://www.hollywoodlife.com/2010/04/27/tiki-barber-wife-divorce-papers-traci-intern-mistress/

[2]

http://www.nydailynews.com/gossip/2010/04/27/2010-04-27_exgiant_tiki_barber_keeps_today_show_job_after_leaving_wife_for_23yearold_former.html

[3]

http://celebs.gather.com/viewArticle.action?articleId=281474978201800

DOMESTIC VIOLENCE- NO EXCUSE

2010-04-26T04:44:00.000-05:00

Nobody has a right to hit you. But you have to act. A PPO is one way.

FLINT DIVORCE LAWYER BANKERT COMMENTS ON KIM KARDASHIAN AND DOMESTIC VIOLENCE. POINT OF VIEW:IF THIS HAPPENED IN MICHIGAN.

4/26/2010

Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.

DOMESTIC VIOLENCE

New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]

DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.

Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.

NO POLICE CALLS, NO PPO

Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]

In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable fear of violence.

CONTROLLING

The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]

During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]

DOMINATING

"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]

THEATS OF VIOLENCE TO HER FAMILY

"He threatened to kill me, my family members and the guys that I am dating."

But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]

INDICATORS OF DOMESTIC VIOLENCE

Domestic violence is a pattern of behavior whose purpose is to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org.

Domestic Violence is not limited to physical violence, abusers may use many forms of control against their partners, including

isolation from friends and family;

verbal abuse (belittlement, taunting);

intimidation (destroying property, abusing pets, displaying firearms);

economic abuse (controlling access to money, preventing or interfering with employment);

coercion (threatening to commit suicide or to report incidents to protective services);

use of the children (harassment during parenting time, threatening to kidnap the children);

sexual abuse; and

stalking.

SHOULD SHE HAVE SOUGHT A PPO?

Nobody has a right to hit you. But you have to act. A PPO is one way.

PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.

WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?

What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:

(a) Entering onto premises.

(b) Assaulting, attacking, beating, molesting, or wounding a named individual.

(c) Threatening to kill or physically injure a named individual.

(d) Removing minor children from the individual having legal custody of the children.

(e) Purchasing or possessing a firearm.

(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.

(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.

(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.

(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).

(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.

MCL 600.2950(1).

SHORT TERM MARRAIGE

The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]

Posted here by

Terry Bankert

WWW.ATTORNEYBANKERT.COM

SEE

[1]

http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338

[2]

http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx

[3]

http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/

[4]

http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1

IOSCO COUNTY SAYS MAN IS DAD EVEN WHEN DNA SAYS HE IS NOT?

2010-04-17T05:36:00.000-05:00

CELEBRITY ISSUE SPOTTING AND A LITTLE “SEO”

***** Comments by Flint Divorce Attorney Terry R. Bankert *****

NO PRE NUP

TMZ reports that Larry King, who filed for divorce this week from his seventh wife, didn’t have a prenup agreement with Shawn King.[1]

FAULT

The two have been married for 13 years and have two young sons. Rumors are flying that Shawn, who is also suing for divorce, is ticked off because she thinks Larry had an affair with her sister.[1]

IRRECONCILABLE DIFFERENCES

In court they’ll call that irreconcilable difference.[1]

PROPERTY DISTRIBUTION

TMZ estimates Larry’s net worth at $144 million and says his current contract with CNN is worth $56 million over four years.[1]

California law entitles Shawn to a 50/50 split of all earnings accumulated during the marriage.[1]

FIRING DIVORCE LAWYER

Golfer Tiger Woods' wife Elin Nordegren has reportedly hired a new divorce lawyer. [2]

RECONCILIATION

Insiders are quoted as saying the former model , Elin Nordegren, is angry that Tiger returned to golf so soon after his cheating scandal and she snubbed the Masters. [3]

ENFORCEMENT OF COURT ORDERS

Rapper Nas can't wait to put his messy divorce from R&B singer Kelis firmly behind him so he can focus on his work and fatherhood……Nas was hauled into court on Monday, when a Los Angeles judge ordered him to hand over more than $290,000 in late child and spousal support payments, in addition to covering Kelis' legal and accounting bills.[4]
*****

THE BABY IS NOT MINE!

Flint Divorce Lawyer Terry Bankert comments on several Michigan Divorce Issues:

-Motion to revoke an acknowledgment of parentage; Sinicropi v. Mazurek (After Remand); MCL 722.1003; Bay County Prosecutor v. Nugent; MCL 722.1011(1); MCL 722.1011(2)(a); MCL 722.1011(3);

-Whether the equities supported revocation of the acknowledgment of parentage; Laches; Tray v. Whitney

See Generally Court: Michigan Court of Appeals (Unpublished),April 13, 2010, v No. 294998 ,Iosco Circuit Court Family Division, , LC No. 09-004751-DS,e-Journal Number: 45518.

The Iosco Circuit trial court got it wrong when the Judge denied the man’s motion to revoke his acknowledgment of parentage.

WHO DID THIS HAPPEN?

In 2003, plaintiff gave birth to a son (C). At the time, MOTHER plaintiff was living with male defendant. Believing C to be his biological son, the man and the mother executed an acknowledgment of parentage.

WOMEN SOMETIMES ARE CONFUSED ABOUT WHO THE FATHE IS

In September 2004, when the relationship between MOTHER and THE MALE defendant began to sour, defendant obtained a DNA test confirming he was not C's biological father.

AFTER SIGNING THE DOCUMENT SAYING HE WA THE FATHER HE THEN GOT A DNA TEST!

In spite of this, defendant remained with plaintiff and C. Approximately one year later, defendant broke off his relationship with plaintiff, moving out of the home.

HE STAYED WITH THE CHILD 1 YEAR, MOM WANTS CHILD SUPPORT HE WANTS OUT.

In January 2009, plaintiff sought child support.

THE DNA DOES NOT LIE

Relying on the DNA test results, male moved, pursuant to MCL 722.1011, to revoke the acknowledgment of parentage.

THERE IS A STATE LAW ALLOWING MEN TO INVALIDATE THE AFFIDAVIDIT OF PARENTAGE

There was no disagreement the acknowledgment of parentage was valid, the man’s motion for revocation was proper, the man sufficiently supported his motion by showing mistake of fact (one of the five enumerated grounds), and he proved by clear and convincing evidence C was not his biological son.

AFTER HE KNEW DID THE MAN STAY WITH THE CHILD TOO LONG? WWAS IT FAIR TO THE CHILD

The man and mother disputed, however, whether the equities supported revocation of the acknowledgment of parentage.

IOSCO HELD THE MANS TOES TO THE FIRE

The Iosco Family Court based its bad decision on the judges opinion the equitable doctrine of laches, applies because of the man’s delay in attempting to revoke his acknowledgment of parentage this made revocation unfair.

MOM HAD TIME TO FIND THE BIOLOGICAL FATHER

The Iosco court's conclusion the man’s actions prevented mom from looking for C's biological father made little sense under the facts.

MOM COULD HAVE SOUGHT SUPPORT FROM THE REAL DAD

Just as defendant had known for four and a half years he was not C's biological father, so had the mother plaintiff. She was not prevented from seeking out the biological father, and she was not prevented from seeking support from defendant. It was unfortunate neither parent acted earlier.

THE IOSCO COURT SAID IT WAS OKAY FOR THE MAN TO LET THE CHILD THINK DADDY WAS NEAR!

However, the Iosco court held the man’s delay in attempting to revoke his acknowledgment of parentage was not unreasonable under the circumstances.

THE RELATIONSHIP HAD BEEN BROKEN OFF,

The man had no relationship with C for about three years prior to the initiation of the litigation, and mom acquiesced to the status quo for the same time period.

There was no reason to believe the mother relied on the acknowledgment of parentage during the time. Under these circumstances, revocation was the okay.. The Iosco trial court's denial of the motion to revoke acknowledgment of parentage was found to be wrong.

Because the Iosco court's judgment of filiation, and award of child support, was founded on the acknowledgment of parentage, the judgment was destroyed, and the case was sent back to Iosco County to get it right.

-
THE COURT OF APPEALS RULED :In equitable matters, we review a trial court’s factual findings for clear error, but “whether equitable relief is proper under those facts is a question of law that an appellate court reviews de novo.” Sinicropi v Mazurek (After Remand), 279 Mich App 455, 462; 760 NW2d

520 (2008).

THE COURT OF APPEALS RULED :When an unmarried woman gives birth to a child, that woman may join with a man in

completing an acknowledgment of parentage form, and if they do so, that man is considered the

natural father of the child, MCL 722.1003, and becomes a “legal parent” of the child, Bay Co

Prosecutor v Nugent, 276 Mich App 183, 188; 740 NW2d 678 (2007).

THE COURT OF APPEALS RULED :The man who signs an

acknowledgment of parentage may later file a claim to revoke the acknowledgment. MCL

722.1011(1). Such a claim may be made as a motion in an existing action for child support. Id.

THE COURT OF APPEALS RULED :The claim must be accompanied by an affidavit setting out facts supporting at least one of five

enumerated grounds for revocation, one of which is mistake of fact. MCL 722.1011(2)(a). If the

court finds the affidavit sufficient, the claimant has the burden of proving by clear and

convincing evidence (1) that the child is not his, and (2) “that, considering the equities of the

case, revocation of the acknowledgment is proper.” MCL 722.1011(3).

THE COURT OF APPEALS RULED :

Laches requires more than a

showing of a passage of time; “there must also have been a change of conditions which would

render it inequitable to enforce the claim, or a showing that the defendant was prejudiced by the

delay.” Tray v Whitney, 35 Mich App 529, 535; 192 NW2d 628 (1971).

THE COURT OF APPEALS RULED :It is truly unfortunate that neither parent acted earlier. Nonetheless, we conclude that defendant’s delay in attempting to revoke his acknowledgment of parentage was not

unreasonable under the circumstances. Defendant had no relationship with Colton for about

three years prior to the initiation of this litigation, and plaintiff acquiesced to that state of affairs

for the same time period. There is no reason to believe that plaintiff relied on the

acknowledgment of parentage during that time. Under these circumstances, revocation was the

proper result. Accordingly, we reverse.

Posted Here by

Terry R. Bankert

http://www.attorneybankert.com/

To find your county court house see,

http://www.dumpmyspouse.com/

Sources

[1]

http://www.kansascity.com/2010/04/16/1882240/stargazing-larry-vs-shawn-king.html

[2]

http://sify.com/news/tiger-woods-wife-switches-divorce-lawyer-news-international-keqtkfhcdga.html

[3]

http://www.timeslive.co.za/entertainment/article406695.ece/Imminent-divorce-for-Tiger-Woods

[4]

http://www.sfgate.com/cgi-bin/blogs/dailydish/detail?entry_id=61369

COURT DELAY CAUSES DAD TO LOSE CUSTODY

2010-04-14T06:06:00.002-05:00

Flint Divorce Attorney comments on several Issues:

MOTION FOR CHANGE OF CUSTODY AND ISSUES OF ;

CUSTODIAL ENVIRONMENT

*Whether there was an established custodial environment with the defendant-mother; Phillips v. Jordan; McIntosh v. McIntosh; Harvey v. Harvey; Jack v. Jack;

BURDEN OF PROOF

*Whether after finding an established custodian environment existed with defendant alone the trial court used that finding to reverse the burden of proof on the change of custody motion; Fletcher v. Fletcher (After Remand); Vodvarka v. Grasmeyer;

CHANGE IN CIRCUMSTANCES

*Whether the trial court determined whether there was a change of circumstances and properly changed the custodial arrangement; The Child Custody Act

See generally Court: Michigan Court of Appeals (Unpublished 4/6/2010),Case Name: Spears v. Ziemba, e-Journal Number: 45467,Judge(s): Per Curiam – Wilder, O’Connell, and Talbot ,Wayne Circuit Court Family Division,LC No. 00-024757-CC

WAYNE COURT GOT IT RIGHT

The Wayne Circuit Court Family Division called the trial court properly found there was an established custodial environment with the defendant-mother, did not improperly shift the burden of proof, and granted her motion for change of custody.

THE PARENTS WERE NOT MARRIED

The parties met in 1998. They did not marry. Their only child, M, was born in 1999. Plaintiff commenced this action in 2000. A year or two later, the parties moved to Iowa with M. Later, plaintiff returned to Michigan. M remained in Iowa.

FIRST ORDER SOLE PHYSICAL CUSTODY TO DAD, THE PLAINTIFF

In November 2003, the trial court entered a consent judgment of custody, providing for joint legal custody, and granting sole physical custody of M to plaintiff.

MOM GOT A DETAILED PARENTING TIME PLAN

A detailed parenting time schedule was also set forth in the judgment.

DAD GETS A JOB OFFER AND MOVES, THE PARTY HAD JOINT LEGAL CUSTODY

In 2007, plaintiff received a job offer with a company located in South Carolina. Plaintiff accepted the job offer and during the time defendant was exercising her summer parenting time with M, plaintiff moved to South Carolina.

WAYNE COURT SAID NOW MOM HAD CUSTODIAL ENVIRONMENT

The trial court concluded there was an established custodial environment for M with defendant …

DAD HAD AN ORDER NOT TO REMOVE THE CHILKD FROM THE STATE AND HE MOVED

…because M had been living with defendant since the summer of 2007, pursuant to the trial court's order M not be removed from the state of Michigan after plaintiff moved to South Carolina.

WHY DID MOM HAVE THE CUSTODIAL ENVIRONMENT?

SCHOOL

The trial court noted under its prior order, M was enrolled in school in Michigan, …

LIVING WITH MOM

…had been with defendant for an appreciable time, and …

LOOKED TO MOM FOR GUIDANCE

…naturally looked to her for guidance, discipline, necessities of life, and parental comfort.

EMOTIONAL TIES

The trial court also found the emotional ties between M and defendant were stronger than those between the child and plaintiff.

DAD SAID THE COURT TOOK TOO LONG ON HIS MOTION AND IS PARTLY RESPONSIBLE FOR THE CHANGE IN THE CUSTODIAL ENVIRONMENT…DELAY!!!!!

While the court acknowledged plaintiff's valid complaint about the trial court's failure to act expeditiously on his motion to change domicile and on the motion to change custody by permitting a two year delay before bringing the matter to conclusion, nevertheless,….

TOO BAD FOR DAD SAYS THE COURT

…. on the record before the court, the trial court's finding there existed an established custodial environment with defendant was not against the great weight of the evidence.

IT WAS DADS DECISION TO MOVE, HE CAUSED THE CHANGE

The trial court's February 2008 order found a change of circumstances had occurred because plaintiff's relocation to South Carolina led to a change in the established custodial environment.

Accordingly, the trial court did not fail to find the requisite change in circumstances warranting consideration anew of the custodial arrangement. Affirmed.

TIMELINE

The parties met in 1998.

They did not marry.

One childborn in 1999

Plaintiff commenced this action ,custody,in 2000.

A year or two later, the parties and child moved toIowa

Later, mom returned to Michigan.

The child remained with her father in Iowa.

November 2003, the Wayne Court entered a consent judgment of custody, providing for

joint legal custody, and granting sole physical custody of child to dad.

A detailed parenting time schedule was also set forth in the judgment for mom.

2007, dad received a job offer with a company located in South Carolina.

DAD accepted the job offer and during the time Mom defendant was exercising her summer parenting time with the child dad moved to South Carolina.

DAD TOOK THE JOB AND FILED A SPEEDY MOTION, THIS WAS HIS ONLY OPTION

June 28, 2007, dad filed a motion to change domicile in theWayne County Family Court.

The Court procedure caused dads motion to be referred to the circuit court’s Family Evaluation, Mediation and Counseling unit (FEMC), for investigation and recommendation on the motion to change domicile.

THE COURT PROCESS DRAGGED ON FOR 30 DAYS

Now 30 days have elapsed, the summer is ending Dad already had sole custody being exercised is a satte other than Michigan he just wanted to move to a different state with the child.

COURT TELLS DAD YOUR CHILD WILL STAY IN SCHOOL IN MICHIGAN

My read is that the Wayne Court punished father for moving without a court review. When the FEMC recommendation was still pending in August 2007, the Wayne Family Court trial court judge ruled that the child would remain in Michigan and attend school pending a hearing on the motion. This I my opinion was a court caused change in custodial environment.

AT 60 DAYS A PSYCHOLOGIST SAYS THE CHILD SHOULD GO WITH DAD

In September 2007, a psychologist for FEMC recommended granting the request to change domicile.

THE WAYNE COURT WAS IN NO HURRY NO HEARING GRANTED UNTILL SIX MONTHS AFTER THE FILING OF DADS MOTION

The trial court, however, did not hold an evidentiary hearing on the motion to

change domicile until January 2008, and following the hearing …

THE JUDGE WAS STILL IN NO HURRY

…he took the matter under advisement.

MOM WOKE UP AND FILED HER OWN MOTION TO CHANGE CUSTODY, THE JUDGE BY DELAY HAD GIVEN HER A GIFT OF OPPORTUNITY

Before the January 2008 evidentiary hearing, in December 2007, defendant had filed a
motion for change of custody.

THE COURT DENIED THE FATHERS REQUEST TO CHANGE THE CHILDS DOMICILE FROM ONE STATE TO ANOTHER. THE CHILD HAD NOT BEEN LIVING IN MICHIGAN

In February 2008, the trial court denied the motion to change domicile.

CATCH 22 APPLIED HERE . BY SUBMITING TO THE COURT WHEN NO CHANGE OF CIRCUMSTANCES EXISTED THE COURTS OWN DELAY WAS FOUND TO HAVE CREATED A CHANGE IN CIRCUMSTANCES. THE HIGHER COURT SAID OKAY.

The trial court also held that an evidentiary hearing was required on the motion to

change custody because there had been a change in the established custodial environment due to plaintiff’s relocation and the child having remained in Michigan, and thus, there had also been a change in circumstances.

DAD APPEALED LATE

In April 2008, plaintiff filed a delayed application for leave to appeal in this Court from

the trial court’s August 2007 order denying the motion to change domicile. This Court denied the delayed application for leave, Spears v Ziemba, unpublished order of the Court of Appeals, entered June 26, 2008 (Docket No. 284967), stating in part:

In light of plaintiff’s failure to appeal the February 11, 2008[,] opinion and

order denying his motion to change the child’s domicile and his failure to remain

in Iowa, the delayed application for leave to appeal is DENIED for failure to

persuade the Court of the need for immediate appellate review.

THE WAYNE COURTS HEARING ON MOMS REQUEST MUST HAVE BEEN FAULTY. WHY?

However, the matter is REMANDED to the trial court to promptly conduct a hearing on

defendant’s motion to change custody.

Should you be able to get a divorce on the day you file?

2010-04-10T07:24:00.002-05:00

Flint Divorce Lawyer Terry Bankert shares his opinion on the waiting period in divorce.

These waiting periods are thought to be for the children.

The underlying theory is that waiting gives children the time to adjust to the split of their parents. It gives the parents time to reconcile before divorce.

A long waiting period also works to exclude men from joint custody.

Most men move from the marital home and into inexpensive small apartments. They have been a partner in raising the children but usually end up with a reduced role during the waiting period after a temporary orders have been made. At the time of trial they no longer have a joint custody environment and have effectively lost their right to joint physical and legal custody of their children. What do you think the waiting period between application and granting of divorce should be?

GOVERNMENT SHOULD STAY OUT OF PEOPLES LIVES.

Divorce in itself is a social issue which should not be of concern to the government, other than the need to determine property interests and decide child custody issues, which are legitimate legal concerns.[3]

Divorce Waiting Period

Many states have divorce waiting periods .WHEN YOU FILE FOR DIVORCE make sure what the waiting period is. These Divorce waiting periods vary from state to state, ranging from a month to six months to even a year or more, if certain divorce issues haven't been resolved. Many states will consider extending divorce waiting periods, especially for couples with children. Some think that shorter divorce waiting periods lead to higher divorce rates.[8]

What's the Waiting Period to File for Divorce in Your State?

Many states require a period of separation before divorce when fault is alleged,. But most states have no requirement about spouses being separated for any period of time prior to filing for A NO FAULT DIVORCE. Did you know that some states require a period of separation before filing for divorce Other states require a separation prior to issuing a divorce decree. see generally [8]

WAITING PERIOD IN DIVORCE

A divorce judgment generally may not be entered until after the expiration of a waiting period: 60 days after the complaint was filed for a divorce without children and six months when minor children are involved (unless the court finds extenuating circumstances that necessitate shortening the six-month period). MCL 552.9f; MCR 3.210(A).

The willingness of the trial courts to waive the six-month waiting period varies widely among the circuits and among judges within a circuit.

MCL 552.9f also provides that a party may perpetuate testimony before the waiting period has expired. See also MCR 3.210(A)(3). A plaintiff who will not be in the local area after the waiting period may file a motion for perpetuation of testimony. Testimony is taken in open court, transcribed by the court reporter, and placed in the court file. At the hearing, the court considers the perpetuated testimony in determining the grounds for entry of the divorce judgment. Alexander v Alexander, 103 Mich App 263, 303 NW2d 202 (1981).

COULD A LONGER WAITING PERIOD SAVE THE MARRIAGE OF SANDRA BULLOCK AND JESSE JAMES BECAUSE OF HIS SEX ADDICTION?

Sandra Bullock's love rat hubby Jesse James will spend April in rehab, his publicist said. [4]

SHOULD THE WAITING PERIOD BE SHORTNED WHEN THERE IS DOMESTIC VIOLENCE?

STACEY DASH: The 44-year-old actress split from her husband of three years, Emmanuel Xuereb, in January and a judge granted her a protection order when she filed legal papers to make the split official.[5]

WHAT AFFECT DOES THE WAITING PERIOD FOR THE RICH HAVE CONSIDERING THE COMPLEXITY OF THEIR PROPERTY DIVISION?

Casino maestro Steve Wynn and his now-ex-wife, Elaine Wynn, officially ended their marriage late last year with a settlement that has been sealed at her request. Yet the question has been raised in the nation's gossip columns and in the parlors around Vegas: Was this split the costliest on record? "I would say so," Wynn, 68, …Wynn's relationship with Hissom became public in January 2009. The Wynns filed for divorce two months later. A judge accepted a proposed settlement in November…..Elaine Wynn received her 11,076,709 shares of stock in January, when it was worth $741 million. A recent stock run-up now puts the value of that stake at $955 million.[6]

WHAT IMPACT WILL A WAITING PERIOD HAVE ON THE VERY PUBLIC TIGER AND ELIN WOODS SPLIT?

"Elin thinks if Tiger rushed his golf comeback then all he was interested in was getting back to where he was and she doesn't want to go back to where they were."There were so many other women, so many years of betrayal, of Tiger living a lie. Elin has to learn to trust him again and that is not happening."In fact, his return to golf has made her trust him less," the source revealed.[7]

ARIZONA FAILS IN ATTEMPt TO MAKE IT HARDER TO GET A DIVORCE

It appears that an ill-conceived bill to extend the waiting time before a divorce is finalized in Arizona has been rejected by the Legislature.[1]

That's good. We hope House Bill 2650 is not resurrected during the last, chaotic days of this legislative session.[1]

NO-FAULT DIVORCE

In Arizona, which is a "no- fault" divorce state, one party needs only to assert in a court petition that the marriage is "irretrievably broken." After a 60-day wait, a judge can formally grant a divorce.[1]

ARIZONA FAILS IN ATTEMPT

Lawmakers rejected a bill that would have extended that wait to 180 days. When that failed, Rep. Nancy Barto, R-Phoenix, next tried a proposal that would have allowed one party to demand that the divorce be delayed for six months.[1]

Opponents say a longer waiting period extends uncertainties for children and could impose dangerous stresses on couples.[2]

STATE POLICY SHOULD BE TO ENCOURAGE MARRAIGE

Barto argued that the change was needed because "homes that break up cost the state and should be the policy of our state to encourage families to stay together," Howard Fischer of Capitol Media Services reported in the Star.[1]

LONGER WAITING PERIOD DOES NOT SAVE MARRAIGE

That argument makes little sense to us. There's no evidence that a longer waiting period would reduce the number of divorces.[1]

DO MOST FAMILIES TRY COUNSELING FIRST

As we noted in a February editorial, Colleen McNally, the presiding family court judge for Maricopa County, testified to a House committee that by the time many couples file for divorce, they've already tried counseling.[1]

TIME TO GET DIVORCE SHOULD BE SHORTNED

In an earlier story reported by Fischer in the Star, McNally said judges would like to see the time to make a divorce final shortened, not lengthened.[1]

PEOPLE DO NOT SEEK A DIVORCE IN HASTE

"We don't seem to see people coming to court who are hastily seeking to dissolve their marriages," McNally said.[1]

GOVERNMENT INTRUSION IN TO PEOPLES LIVES

Fischer reported that the bill could still be revived using parliamentary maneuvers.

Lawmakers should let it die a quiet death. We think it would perpetrate a new, inappropriate government intrusion into the private lives of Arizonans.[1]

A SHORT WAITING PERIOD IS BEST

But if married couples want to split, and the necessary legal issues have been addressed, then the state should keep its nose out of it. It is something individuals should decide for themselves, and the court system should expedite the process as much as possible, not drag it out.[3]

Posted here by
Terry Bankert
http://www.attorneybankert.com/
Find your court house in Michgian
http://www.dumpmyspouse.com/

See

[1]

http://azstarnet.com/news/opinion/editorial/article_8e801e6b-322a-5c89-b0f7-f95afcb50210.html

[2]

http://www.kswt.com/Global/story.asp?S=12280057

[3]

http://www.yumasun.com/opinion/divorce-57570-delay-legislation.html

[4]

http://www.dnaindia.com/entertainment/report_jesse-james-to-spend-april-in-rehabilitation_1369695

[5]

http://www.sfgate.com/cgi-bin/blogs/dailydish/detail?entry_id=60988

[6]

http://www.aolnews.com/weird-news/article/steve-wynn-calls-his-divorce-most-expensive-ever/19433852

[7]

http://news.oneindia.in/2010/04/09/tigerwoods-relationship-with-wife-gettingworse.html

[8]

http://www.totaldivorce.com/process/requirements/waiting-period.aspx

Parenting time in Michigan and communication of the parents.

2010-03-28T10:12:00.005-05:00

HOW IS PARENTING TIME DETERMINED IN DIVORCE COURT?

Terry R. Bankert a Flint Divorce Attorney shares his thoughts about parenting time and a recent case of the Michigan Court of appeals. If these celebrities , Tiger Woods and Sandra Bullock, divorced and lived together they would need to communicate with their ex- spouse.

An issue of possibly first impression here is the Flint Divorce parents’ inability to communicate
hampered their ability to co-parent, which was not in the minor child’s best interest.
The Flint Divorce Court looked first to what was best for these parents.

The Flint Divorce Parents had a current poor ability of the parents to cooperate, the Flint Divorce Court determined it best to minimize the amount of disruption to the minor child by gradually increasing the amount of parenting time plaintiff (father) exercised, thereby allowing plaintiff and defendant (mother) to build up to a higher level of trust between the two of them.
The goal and end result of the schedule culminated with an essentially equal division of parenting time between plaintiff and defendant when the child reached seven years of age.

FLINT DIVORCE COURT ORDERS PARENTING CLASSES AND ADJUSTMENT COUNSELING!

To facilitate that goal, the Flint Divorce Court also ordered parenting classes and “adjustment” counseling for the parties.

WHAT LAW CONTROLLS PARENTING TIME

Did you know Parenting time in Flint Divorce Court and throughout Michigan is governed by statute, MCL 722.27a:

(1) Parenting time shall be granted in accordance with the best interests of the
child. It is presumed to be in the best interests of a child for the child to have a
strong relationship with both of his or her parents. Except as otherwise provided
in this section, parenting time shall be granted to a parent in a frequency, duration,
and type reasonably calculated to promote a strong relationship between the child
and the parent granted parenting time.

CAN CUSTODY BE THREATEND BECAUSE THE PARENTS CANNOT GET ALONG

Here we will talk about Child custody; Whether the trial court properly allocated parenting time between the parties; MCL 722.27a; Pickering v. Pickering; Berger v. Berger; Phillips v. Jordan. “Orders regarding parenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.”

WHAT IS JUDICIAL DISCRETION IN FAMILY COURT? WHEN IS IT ABUSED?

An abuse of discretion occurs when the trial court’s decision “is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). However, rulings, such as custody decisions, are discretionary and are reviewed for an abuse of discretion. Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000).

LOCAL FAMILY LAW DECISION ARE FIRST APPEALED TO THE MICHGIAN COURT OF APPEALS

This issue was heard before the Michigan Court of Appeals (Unpublished), 03/16/2010, Case Name: Knieper v. Dumas-Knieper
e-Journal Number: 45342, Genesee County Family Court 08-283542-DM
In the Flint family Court this case was before Judge Behm. The fathers Attorney is barbara dawes and the Mothers Attorney is Linda Pylypiw.

The Court of Appeals decided thew Flint Family Court has before it evidence, a record, that the communication problem between the parties was extremely significant.
This issue dominated the two-day trial, the issue was allowed by the catch-all exceptions not enumerated in §§ 23 and 23a(6).

The Flint divorce Court looked at the best interest factors and essentially found the parties equal on them, and to facilitate the goal of equal parenting time by the time the child is seven the trial court ordered the parties to attend parenting classes and "adjustment" counseling. The Court of Appeals said it was okay when looking at the Flint Divorce Court's allocation of parenting time.
The parties were married in 2007 and separated shortly after the birth of their child in 2008, when the defendant-wife left the marital home with the child and went to her parents' home. Plaintiff filed for divorce.

At the time of trial, both parties were teachers and worked from 7:15 AM to 2:45 PM during the school year. Defendant's mother provided day care while the parties worked. The parties stipulated to having joint legal and physical custody.

After a hearing, the trial court made its findings, evaluated each of the "best interest" factors and found the applicable factors each equally favored or disfavored each party alike. The trial court implemented a tiered approach to parenting time with different schedules dependent on the child's age and whether the parenting time was during the school year or the summer.

The trial judge then implemented a tiered approach to parenting time with
different schedules dependant upon the child’s age and whether it was during the school year as
follows:

A. Until the Clio Schools are released for the 2009 summer, Plaintiff’s
parenting time shall be as set forth in the temporary order, to wit:

1. Every Tuesday and Thursday from 4:00 p.m. until 8:00 p.m. . . .

2. Every Saturday from 10:00 a.m. until 6:00 p.m.

C. Once the Clio Schools are released for the summer, Plaintiff shall have
parenting time as follows until the minor child attains the age of three:

1. Every Tuesday, starting June 16, 2009, beginning at 10:00 a.m.
through Wednesday at 10:00 a.m.

2. Every other Friday, beginning June 19, 2009, from at 10:00 a.m. to
Saturday at 10:00 a.m.

3. Every other Saturday, beginning June 13, 2009, from 10:00 a.m. to
Sunday at 10:00 a.m.

D. Once the minor child attains the age of three years to the age of seven
years, Plaintiff shall have the following parenting time:

1. During the summer, Plaintiff shall have the minor child on alternate
weekends, beginning Friday at 10:00 a.m. through Monday morning at
10:00 a.m. In addition, Plaintiff shall have the minor child every other
week from Wednesday at 10:00 a.m. to Friday at 10:00 a.m.

2. During the school year, Plaintiff shall have the minor child on alternate
weekends, beginning Friday at 10:00 a.m. through Monday morning at
10:00 a.m. In addition, Plaintiff shall have the minor child every week
from Wednesday at 10:00 a.m. to Thursday at 10:00 a.m.

E. Once the minor child attains the age of seven years to the age of ten years,
Plaintiff shall have the following parenting time:

1. During the summer, Plaintiff shall have the minor child on alternate
weekends, beginning Thursday at 10:00 a.m. through Monday
morning at 10:00 a.m. In addition, Plaintiff shall have the minor child
every week from Tuesday at 10:00 a.m. to Wednesday at 10:00 a.m.

2. During the school year, Plaintiff shall have the minor child on alternate
weekends, beginning Thursday at 10:00 a.m. through Monday
morning at 10:00 a.m. In addition, Plaintiff shall have the minor child
every week from Tuesday at 10:00 a.m. to Wednesday at 10:00 a.m.

F. Once the minor child attains ten years of age, then Plaintiff’s parenting
time shall be as follows:

1. During the summer, the parties shall alternate weeks, every Sunday at
8:00 p.m.

2. During the school year, Plaintiff shall have alternate weekends,
commencing Thursday at 10:00 a.m. through Monday 10:00 a.m. and every
Tuesday from 10:00 a.m. to Wednesday at 10:00 a.m.
　
On appeal, the plaintiff objected to the trial court's parenting time schedule.
The Flint divorce Court acknowledged a fact influencing its decision was the "substantial communication problem" existing between the parties, and stressed it was not initially awarding any overnights to plaintiff not because he was not individually fit or worthy, but because of the high level of acrimony, distrust, and lack of cooperation between the parties.

The parents' inability to communicate hampered their ability to co-parent, which was not in the child's best interest. Thus, the trial court decided it was best to minimize the amount of disruption to the child by gradually increasing the amount of parenting time plaintiff had, and allowing the parties to build a higher level of trust between them.

The court noted the parenting order was only a back-up/default position. The schedule will take effect "[i]n the event the parties are unable to agree on reasonable parenting time." Further, the trial court did not preclude the plaintiff from seeking more frequent specific parenting time, which would have been an abuse of discretion.

The Michgian Court of Appeals noted that the parenting time order is only a back-up or default provision.

The schedule is only to take effect “[i]n the event the parties are unable to agree on reasonable parenting time.” Moreover, we note that the trial judge did not preclude plaintiff from seeking more frequent specific parenting time, which would have been an abuse of discretion. See, MCL
722.27a(7).

Posted Here by
Terry R. Bankert
A Flint Divorce attorney.
http://www.attorneybankert.com/.
Bankert also practices State Wide with Domestic Mediation.
http://www.dumpmyspouse.com/

Michigan Legal Separation

2010-03-20T04:30:00.004-05:00

If they lived in Michigan an option for Jesse James , Sandra Bullock would be legal Separation

Flint Divorce Lawyer Terry Bankert shares his thoughts On Legal Separation.

A Married Couple in Flint and through out Michigan may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons. Some times it allows for a cooling off period while protecting both parties. As a Flint Divorce Attorney my observation is that a separate maintenance may in some Flint Divorce cases may have saved the marriage.
　
　
On March 7, Sandra Bullock and Jesse James walked the red carpet arm in arm before Bullock accepted the Best Actress Oscar at the ceremony for her work in "The Blind Side." That next week, she reportedly moved out of the couple's home. [1] If they were residents of Michigan several options would be available. Legal Separation would be one.
　
Separate Maintenance

Married persons may request separate maintenance because the parties have a religious objection to divorce, or want to stay married for other reasons. Separate maintenance may allow both parties to have continued health care coverage, but some employers and heath insurance providers treat an action for separate maintenance as a triggering event disqualifying a nonemployee spouse from continued health insurance coverage. This is not uniformly applied by either employers or health insurance providers.

How do you get a separate maintenance? It is filed in the same manner and on the same grounds as a divorce MCL 552.7. First the plaintiff or the defendant must have resided in the state for at least 180 days and in the county of filing for at least 10 days immediately preceding the filing of the complaint MCL 552.7(1), 9(1).

This criteria must be met. Both of these residency requirements are jurisdictional and must be met on the date of filing. If the requirements are not met, the action may be dismissed or the judgment set aside. Lewis v Lewis, 153 Mich App164, 395 NW2d 44 (1986) (circuit court lacks jurisdiction in separate maintenance action if neither party met residency requirement before filing).

ARE YOU DIVORCED? When the matter is concluded, the parties are still technically married, but the marital property may be divided, MCL 552.19, and the court may order support for a spouse who requires it MCL 552.23 (1).A Separate Maintenance action will result in a divorce judgment if the defendant files a counterclaim for divorce and the statutory grounds are established MCL 552.7 (4) (b).

Questions? Contact information below.

Posted here by
Terry Bankert
Flint Michigan Divorce Lawyer
http://www.dumpmyspouse.com/

[1]
http://www.cbsnews.com/stories/2010/03/19/entertainment/main6315401.shtml

Link to this article
http://terrybankert.blogspot.com/2010/03/michigan-legal-separation.html

IN DIVORCE WILL THE AFFAIR MATTER IN MICHIGAN

2010-03-19T09:23:00.003-05:00

A Flint Divorce Attorney shares his thought on a high profile infidelity. What do you think?

WHEN THE HUSBAND HAS AN AFFAIR

It is an unfortunate reality of some marital break ups, one spouse has an affair. We see that in the tabloids where an actress we all respect has had that happen to her.

Marriages have their ups and downs.

Each of the parties should follow their hearts and do what is best for the children and themselves.

Putting the children first is a life test for parents.

Think of the confusion and hurt of the children.

Think of the pressure on the parents. Its public and high profile. So what! The parents must privatize this as quickly as possible.

Their children will measure them by how they see their parents handle this.

It will affect the children forever.

Does it really matter that the husband sought out a stripper. in Michgian when evaluating a parents fitness for child custody or parenting time in a Flint Divorce Court what is called a Best interest factor is used (f) The moral fitness of the parties involved.

The position of Jesse James if her were in Michigan is weakened because the concept of fault can be factored into a custody decision even given Michigan’s no-fault divorce statute. Feldman v Feldman, 55 Mich App 147, 222 NW2d 2 (1974); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973).

Factor “f” evaluates the parties’ relative moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult. Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994) (error in finding that this factor favored plaintiff; there was no evidence that defendant’s extramarital affairs had any adverse effect on her ability to raise children).

THE AFFAIR CAN BE USED TO DEMONSTRATE HIS POOR JUDGEMENT

Although an extramarital affair is not necessarily a reliable indicator of the party’s parenting ability, in Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008), the court found that the unique nature of defendant’s affair, i.e., seducing the children’s nanny, plaintiff’s cousin, in the marital home, demonstrated extraordinarily poor judgment and lack of insight about the impact his conduct could have on everyone in the household, including, ultimately, the children.
　
Maybe the selection of a stripper means he never wanted a relationship. But it still hurts those he loved the most.

We can watch this saga and wonder how will a divorce court react to this drama?
In Flint Family Law Court in Michigan a “no fault” divorce state; the words “no fault” can be misleading. If the parties reach a final settlement on all issues, fault is not a factor. If there is a dispute about property, child or spousal support, parenting time, or custody, fault may become an active ingredient in resolving these issues.
　
“The ballad of Jesse James seems headed for a showdown, as family fallout continues amid infidelity allegations aimed at Oscar-winner Sandra Bullock's husband of five years.[3]

WAS SHE EVER AROUND THE CHILDREN

A San Diego-based tattoo model, McGee claimed to have had a months-long affair with Jesse James, the husband of recent Oscar-winner Sandra Bullock. [1]

WHAT A HARD FALL THIS MUST BE

“Talk about humiliation. Bullock, 45, spent the entire awards season effusively thanking her husband for having her back and making her a better actress. Just 10 days ago, she acknowledged him again on the Oscar stage and when the camera panned to the star of the cancelled Monster Garage TV series, there was a touching tear sliding down his cheek. “[2]
　
MICHIGAN IS A NO FAULT STATE .WILL AN AFFAIR MATTER? YES1

Michigan is a no-fault divorce state, here fault is a consideration in property awards, as it is with child custody. However, fault may not be used as a punitive basis for an inequitable division. McDougal v McDougal, 451 Mich 80, 545 NW2d 357 (1996).

Posted here by
Terry Bankert
A Flint Divorce Lawyer.
http://www.dumpmyspouse.com/
see
[1]
http://www.people.com/people/article/0,,20352881,00.html
[2]
http://blogs.ajc.com/misadventures-in-atlanta/2010/03/19/can-we-have-it-all/?cxntfid=blogs_misadventures_in_atlanta
[3]
http://www.newsday.com/entertainment/celebrities/more-fallout-over-jesse-james-alleged-infidelity-1.1819094

CHANGING THE SCHOOL, CHANGING CUSTODY?

2010-03-17T05:18:00.002-05:00

My name is Terry R. Bankert

I am a Flint Divorce Attorney. In a recent Michigan Court Of Appeals unpublished decision several issues were discussed. This unpublished opinion was released 3/9/2010. It involved a Lapeer County Divorce Case 95-021724. As a Flint Divorce Lawyer this is the law we rely on in Flint Family Court and in State Wide Divorce actions. To find your courts state wide see, http://www.dumpmyspouse.com .

The opinion stated in part the following.

Father protested to the higher court the Lapeer family Court trial court’s order changing a prior custody order under which the parties had week on/week off parenting time with their son, to permit

The child to attend Cranbrook School as a boarding student. The trial court did not change the
parties’ joint legal custody. The Michigan Court said the Lapeer Court was right.
Did you know that in a Divorce case action post judgement before the trial court can change a child’s custody, an evidentiary hearing must be conducted. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).

A Family Law Court before changing child custody is required prerequisite to the evidentiary hearing, the trial court must determine that there is “proper cause” or there has been a “change of circumstances.” Vodvarka v Grasmeyer, 259 Mich App 499, 508-514; 675 NW2d 847 (2003).
　
Did you know that changing a child’s established custodial environment requires the trial court to consider the twelve “best interest factors” under MCL 722.23 and find “clear and convincing evidence that [the change] is in the best interest of the child.” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).

Did you know that a Flint Family law Court as this Lapeer County Court must “evaluate each of the factors contained in the Child Custody Act, MCL 722.23 . . . and state a conclusion on each, thereby determining the best interests of the child.” Thompson, supra at 363 (citations omitted); see also Foskett, supra at 9.
　
When a parent wants to change custody there are hurdles. The purpose of these hurdles is to “to minimize unwarranted and disruptive changes of custody orders,” except under the most compelling circumstances. Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995); see also Foskett, supra at 6.

CHILDREN DO NOT DECIDE THE CHANGE IN CUSTODY

In this case fathers argument is simply that (1) the parties’ son’s wishes are the only
reason for changing the parties’ custody;1 and (2) the law is that a child’s wishes, standing alone,
cannot constitute proper cause, changed circumstances, or the reason for changing custody.

The Court of Appeals indicated that it is up to the local Family law Court to decide how much weight to give a childs stated preferences.

Did you know that Parents who have joint legal custody of a child must agree upon important decisions that affect the child’s welfare. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 295-296; 750 NW2d 597 (2008).

One of those important decisions is the child’s placement in a particular
school. “If [the parents] are unable to agree, the trial court must resolve the dispute
according to [the child’s] best interest.” The parties here could not agree which school
the child would attend, so the trial court was not merely permitted to resolve that dispute, it was
required to resolve that dispute.

The parties’ undisputed inability to agree on the childs high
school “could have a significant effect on the child’s life to the extent that a reevaluation of the
child's custodial situation should be undertaken,” and thus constitutes “proper cause” to revisit a
custody order. See Vodvarka, supra at 854.

Posted here by
Terry Bankert
http://www.flintfamilylaw.com