Saturday, April 12, 2008


Move your child you may lose custody, and discussion on spousal support


Issues: Custody; Proposed change of the parties' minor child's residence;

When the plaintiff-mother's move was less than 100 miles and was the move alone insufficient to constitute a change in circumstances warranting an evidentiary hearing on the best interest factors under MCL 722.27(1)(c); Mason v. Simmons; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Proposed modification of parenting time amounting to a change in the established custodial environment; Brown v. Loveman;

Whether the trial court properly placed the burden of proof on plaintiff to prove the move was in the child's best interests; Sinicropi v. Mazurek; Whether plaintiff met her burden of proof 1. Court: Michigan Court of Appeals (Published) 4/8/2008 Case Name: Powery v. Wells Mason Circuit Court Family Division e-Journal Number: 38998 04-000326 DM Judge(s): Saad, Wilder, and Smolenski


Concluding any modification of "parenting time" based on the plaintiff-mother's move from Ludington to Traverse City would amount to a change in the established custodial environment and thus, an analysis under the best interest factors framework was required, the court held the trial court properly conducted an evidentiary hearing.

The Michigan Law MCL 722.27(1)©) and the controlling case called ; Vodvarka v. Grasmeyer; require that when a parent asks for a change in custody they must show a change of circumstances that materially affect the child. Mother/Plaintiff argued her move was less than 100 miles and thus, insufficient to constitute a change of circumstances warranting an evidentiary hearing. The court disagreed.

While plaintiff contended the move only required a modification of parenting time, the evidence at the motion hearing showed if she moved to Traverse City, either she or the defendant-father "would be relegated to the role of a 'weekend' parent," amounting to a change in the established custodial environment. The trial court also did not err in placing the burden of proof on plaintiff to prove the move was in the child's best interests. While defendant filed the motion to change custody after plaintiff told him she planned to make the move, she requested a modification to the existing parenting time arrangement based on her move.

Since plaintiff made the move necessitating the modification of parenting time, she had the burden of establishing the existing custody arrangement should be disrupted. The court held plaintiff failed to establish the move was in the child's best interests. There were only two possible outcomes - one or the other parent would become a weekend parent. The trial court expressly found removing the child to Traverse City, where she would lose her regular mid-week contact with defendant, did not promote her best interests.

This meant of the two available options, weekly custody with defendant was the one in the child's best interests. The trial court clearly found the continuity of remaining in Ludington was preferable to the uncertainty of the move. The court affirmed the trial court's order ruling the child's residence not be changed and granting defendant weekly physical custody during the school year in the event plaintiff remained in Traverse City.


Issues: Spousal support; Moore v. Moore; Olson v. Olson; McNamara v. McNamara; Whether the award of spousal support should be modifiable; Staple v. Staple; Alimony in gross; MCL 552.28; Whether the trial court properly divided the marital property; Sparks v. Sparks; Gates v. Gates; The 2003 tax refund; Insurance proceeds;

The parties' vehicles; Attorney fees; Omdahl v. West Iron County Bd. of Educ. Court: Michigan Court of Appeals (Unpublished) 4-3-08


Case Name: Hagen v. Jones-Hagen Wayne Circuit Court Family Division 04-403829-DO e-Journal Number: 38960 Judge(s): Per Curiam - Whitbeck and Zahra; Concurring in part, Dissenting in part - White The trial court properly awarded the defendant-wife $1,000 a month in spousal support for two-and-a-half years, which was designated as nonmodifiable, and the court held she was not entitled to spousal support for life.

The trial court based the award on the parties' incomes at the time, their lack of assets, and the amount of debt accrued during the marriage.

The parties were married for seven years when they separated and were married for nine-and-a-half years when the divorce judgment was finally entered. Plaintiff earned $96,000 a year at GM. The parties amassed significant debt during the marriage and plaintiff accepted the burden of the debt in the divorce and his Chapter 13 bankruptcy proceedings.

Plaintiff pays $750 in child support monthly, $1,000 in spousal support, $368 for defendant's health insurance premiums, and $2,200 on his Chapter 13 repayment plan in addition to the outstanding debt on one house, the library fine, and his current monthly bills for utilities, car insurance, food, and other necessities.

Although defendant claimed a physician had placed her on medical leave and she was dependent on pain medication for chronic back pain, she presented no evidence to support this contention. Defendant was able to attend nursing school despite her alleged disability.

The parties lived together for only seven years and had no children together. Defendant testified she was not a housewife and had no one to care for in the home. She owned her own home and raised two children before she married plaintiff.

The court held the two-and-a-half year limit on the spousal support award was appropriate to allow her to finish nursing school and find a job. Given the parties' financial condition at the time of their separation and divorce, the amount of spousal support was fair and equitable. The court affirmed, but remanded for administrative correction of the divorce judgment to reflect the award of spousal support is modifiable.

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by Terry Bankert ...
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