CHANGING CHILD CUSTODY ATTORNEY TERRY BANKERT (810)235-1970

DID YOU KNOW.

MCL 722.27(1)(c) provides that in a custody dispute, a trial court, for the best interests of the child at the center of the dispute, may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances.” 

[Principle source e-journal #71713, Unpublished 11/14/19.No.349021. ]

But the court is not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c).

“These initial steps to changing custody— finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (quotation marks omitted). 

The first step in the analysis is to determine whether the moving party has established proper cause or a change of circumstances by a preponderance of the evidence. Id. at 508-509.

In McRoberts v Ferguson, 322 Mich App 125, 131-132; 910 NW2d 721 (2017), this Court explained: Proper cause means one or more appropriate grounds that have or 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. 

In 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.

To constitute a change of circumstances under MCL 722.27(1)(c), 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. [Citations, quotation marks, and alterations omitted.] 

With respect to the issue of “proper cause,” the criteria outlined in the statutory best

interest factors, MCL 722.23, “should be relied on by a trial court in deciding if a particular fact raised by a party is a ‘proper’ or ‘appropriate’ ground to revisit custody orders.” Vodvarka, 259 Mich App at 512. 

In regard to “change of circumstances,” the relevance of facts presented should also “be[] gauged by the statutory best interest factors.” Id. at 514. “Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic.” Corporan, 282 Mich App at 605. 

In Vodvarka, 259 Mich App at 512, this Court, addressing the threshold issue, observed: Obviously, trial courts must make this factual determination case by case. Although these decisions will be based on the facts particular to each case, we do not suggest that an evidentiary hearing is necessary to resolve this initial question. 

Often times, the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.

 MCR 3.210(C)(8) provides: In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.

 It is clear to us, and was effectively accepted by the trial court, that if the allegations set forth in plaintiff’s motion to modify custody are true, they would easily establish a change of circumstances and proper cause for purposes of revisiting the issue of custody under the statutory best-interest factors.

 But the trial court found it problematic that plaintiff had not submitted any statements, affidavits, reports, or other documentary evidence to support the allegations, let alone evidence that was current and relevant. 

The motion to modify custody was not verified, nor did plaintiff supply her own affidavit. MCR 3.210(C)(8) allowed the trial court to require “an offer of proof or otherwise” in relation to deciding whether to order an evidentiary hearing.

Under the circumstances of the case and given the remarks made by the trial court when ruling on the motion, the court’s hesitation and resistance at giving any weight to the allegations in plaintiff’s motion was plainly driven by the four CPS investigations instigated by plaintiff that resulted in determinations that allegations of abuse by defendant could not be substantiated.

The lack of substantiation, again and again, could reasonably call into question plaintiff’s motives and credibility on all matters.

 The trial court appeared more than open to further considering a motion to modify custody if plaintiff would come forward with supporting documentary evidence, explaining why the court took the unusual step of denying the motion without prejudice.

 Indeed, the record and the CPS history support the trial court’s decision to deny the motion to modify custody simply on the-1970 basis that plaintiff did not provide supporting documentation on the threshold issue of change of circumstances or proper cause."

Presented here by Terry Bankert Flint Divorce Attorney 810-235-1970 FlintFamilyLaw.com

GRANDPARENT VISITATION STOPPED BY GUARDIAN WAS WRONG.Flint Divorce Attorney Terry Bankert 810-235-1970

#TERRY TALKS “Ideas worth sharing “

#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group WWW.terrytalks.com

DATE: 10/20/13

TIME:12:00 PM

Here the “Plaintiff alleges that the trial court erred by allowing defendant, the guardian, to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We  

(Michigan Court of Appeals) agree

see: www.terrytalks.com

Issues:

1. Motion for grandparent visitation (MCL 722.27b);

2. Whether the trial court properly allowed the intervening defendant (the guardian) to utilize the "fit parent presumption" of MCL 722.27b(4)(b) to deny grandparent visitation; Whitman v. City of Burton; In re Receivership of 11910 S. Francis Rd.; Johnson v. Recca; People v. Peltola; In re Hurd-Marvin Drain; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.; Miller-Davis Co. v. Ahrens Constr., Inc.;

3. MCL 722.27b(1)(e);

4. Whether the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b); MCL 700.5215;In re Beck; University Ctr., Inc. v. Ann Arbor Pub. Schs.; Hunter v. Hunter

COURTS INVOLVED

Court: Michigan Court of Appeals (Published)

FOR PUBLICATION,September 26, 2013 ,9:00 a.m. [2]

Case Name: Book-Gilbert v. Greenleaf ,No. 308755 ,[1]

PRINCIPAL SOURCE e-Journal Number: 55461

MICHIGAN COURT OF APPEALS Judge(s): Per Curiam – Fort Hood, Fitzgerald, and Ronayne Krause

THE LOCAL,LOWER,TRIAL  COURT  ERRED IN ALLOWING INTERVENING  GUARDIAN  TO STEP INTO A  FIT PARENTS  PRESUMPTION  WHEN DECIDING ON GRANDPARENT VISITATION.

The court held that the trial court erred by allowing intervening defendant-Tyndall (the guardian and relative of the minor child's deceased mother) to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation to intervening plaintiff-McCallister and by allowing a guardian to "step into the shoes" of a fit parent for purposes of MCL 722.27b(4)(b)."[1]

MICHIGAN COURT OF APPEALS REVERSES LOWER COURT/TRIAL COURT  ORDER  AND DENY’S THE GRANDPARENT MOTION FOR VISITATION

Thus, the court reversed the family court order [...AND...] denying plaintiff's (the minor child's paternal grandmother) motion for grandparent visitation, and remanded. "[1]

THE TRIAL COURT RELIED ON MCL 722.27b(4)9b)

The trial court held that MCL 722.27b(4)(b) provided that deference was to be given to the decision of a fit parent to deny grandparenting time, and it was presumed that the denial of parenting time "does not create a substantial risk of harm to the child's mental, physical, or emotional health.""[1]

THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT

It acknowledged that defendant was not a parent, but a guardian. Nonetheless, it held that defendant had the right to make decisions as a fit parent, the right to deny grandparenting time, and plaintiff failed to overcome the presumption."[1]

THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW

The court held that the trial court's holding was contrary to the plain language of MCL 722.27b(4)(b), which grants "fit parents" a presumption as to the denial of grandparenting time. The Legislature could have afforded a presumption to "custodians" or "guardians" of a grandchild, but did not include such language. "[1]

GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.

The court cannot read into a statute what the Legislature did not include, and permitting guardians or custodians to derive the benefit of the fit parent presumption would require it to rewrite the statute"[1]

Defendant contended that a guardianship encompasses parental responsibilities, and thus, the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b).[1]

The court held that despite the definition of guardian found in MCL 700.5215, there was no indication that the definition may be incorporated into the provisions of MCL 722.27b(4)(b).[1]

"The statutes fail to address the same subject matter, and they cannot be read in pari materia." More importantly, the court held that there are distinct differences between a natural parent and a guardian such that it would be inappropriate to read the term guardian into the text of the fit parent presumption of MCL 722.27b(4)(b) in the absence of a legislative provision.[1]

PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT

"Specifically, parents have a fundamental liberty interest in the care, custody, and control of their children.""[1]

"The presumption to a fit parent reflects the elevated status and rights a parent has to a minor child..[1]

" Further, a fit parent has a relationship to the grandparents "such that an informed decision may be made regarding the propriety of grandparent visitation. "[1]

On the contrary, a guardian or custodian of a grandchild may or may not have a relationship with the grandparent, and, in the absence of a relationship, could not make an informed decision regarding the risk of harm to a child during visitation."[1]

SOURCE

[1]

PRINCIPAL SOURCE e-Journal Number: 55461 Mostly the incited text

[2]

STATE OF MICHIGAN  COURT OF APPEALS ,ASHLEE BOOK-GILBERT,  Plaintiff,

andHEATHER MCCALLISTER,  Intervening-Plaintiff-Appellant,  FOR PUBLICATION

September 26, 2013 ,9:00 a.m. ,JERRY RYAN GREENLEAF Defendant,

And ANGELA TYNDALL, Guardian of XXXXX, Minor,  

Intervening-Defendant-Appellee.

[trb]

TERRY BANKERT comments are in BLOCK HEADLINE  or quoted [trb]

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com --

-TERRYTALKS on facebook -https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter -www.twitter.com/terrybankert -

-MICHIGAN FAMILY LAW ADVOCATE -http://terrybankert.blogspot.com/ -

- BANKRUPTCY AND MICHIGAN FAMILIES - http://dumpmycreditors.wordpress.com/ -

- TERRY ON YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY  on FLICKR -http://www.flickr.com/photos/30366181@N05/-

_________________________________________________________________

FLINT DIVORCE ATTORNEY AND CASE WHERE WIFE GETS MORE PROPERTY

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

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/

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

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/

Alimony Modification

Flint Divorce Attorney article on alimony or Spousal Support. Terry Bankert is also a Flint Divorce Attorney handelings child custody and child support issues. These actions in Flint Divorce also deal with Parenting time and Grandparents rights.

This article is posted to the writing page of Flint Attorney Bankerts webpage under writings. It shall appear on his FaceBook (1200 Friends), Blogging for Michigan and his daily thread " Good Morning Flint" found on FlintTalk.com and Bankerts Google and Word press Blogs. Divorce Attorney Bankert will also discuss Alimony Payments on WFLT 1420 A.M. Radio 9 A.M. to 9:30 on 3/07/09.
Issues:
Divorce;
Motion for a reduction of alimony payments;
Motion for an increase in spousal support; Moore v. Moore; Rickner v. Frederick; MCL 552.28; Staple v. Staple;
Whether because the property settlement was not merged into the judgment of divorce the alimony was not subject to modification; Marshall v. Marshall;
Whether there was evidence the plaintiff-husband needed support to be reduced; Thornton v. Thornton; Stoltman v. Stoltman;
Retroactive modification of alimony; Staff v. Johnson; MCL 552.603(2); Rapaport v. Rapaport;
Calculation of the modified award in reliance on a "fictional rate of return"; Charbeneau v. Wayne County Gen. Hosp.
Court: Michigan Court of Appeals (Unpublished)
February 24, 2009
Oakland Circuit Court No. 280286
Case Name: Goldberg v. Goldberg
e-Journal Number: 41933
Judge(s): Per Curiam - Fort Hood, Wilder, and Borrello
This presentation is modified consult an attorney before you rely on its contents.

THE HIGHER COURT SAID THE LOWER COURT DID IT RIGHT

The trial court properly granted the plaintiff-husband's motion for a reduction of alimony payments modifying the alimony agreement where the agreement was modifiable and plaintiff proved a change in circumstances.

THE WORDS USED ARE IMPORTANT

The alimony provision in the property settlement did not specifically declare the parties were forgoing their statutory right to modification, nor did the alimony provision state it was "final, binding and nonmodifiable."

THE RIGHT TO CHANGE ALIMONY WAS NOT GIVEN UP

Further, the judgment of divorce did not address any waiver of modifiability of the alimony provision.

WIFE SAID HUSBAND DID NOT DO THE JUDGEMENT RIGHT

Defendant-wife contended the property settlement was not merged into the judgment of divorce, and thus, the alimony was not subject to modification.

A CASE CALLED MARSHALL WAS CONTROLLING

The court held Marshall did not preclude the modification of the alimony agreement in this case.

MARSHALL WAS A PROPERTY CASE

First, Marshall explicitly applies to property settlements and does not reference alimony directly.

A PRIOR AMENDMENT LET ALIMONY IN

More importantly, review of the record revealed the parties stipulated in 1987 to modify the judgment of divorce to include the alimony provision.

NOBODY WAIVED THE RIGHT TO CHANGE ALIMONY

Thus, defendant's reliance on the Marshall decision was misplaced, and it was presumed the parties did not intend to waive their statutory right to modify the alimony agreement. The parties entered into the stipulation for modification of the judgment of divorce on October 23, 1987. The stipulation demonstrated the parties intended to amend the judgment of divorce to include the alimony provision, as opposed to allowing it to remain a provision of the property settlement.

CHANGE IN CIRCUMSTANCES HUSBANDS INCOME DOWN AND WIFE INHERITIED

While the defendant also argued the trial court erred in reducing spousal support because there was no evidence plaintiff needed support to be reduced, the court disagreed. Plaintiff established his income had decreased and the defendant inherited a large sum from her mother. The court held the trial court was justified in modifying the alimony agreement. Affirmed.

– the complet case follows, above has been modified for presentation--

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
HOWARD S. GOLDBERG,
Plaintiff-Appellee,
UNPUBLISHED
February 24, 2009
v No. 280286
Oakland Circuit Court
ALICE D. GOLDBERG,
LC No. 83-255799-DM
Defendant-Appellant.
Before: Fort Hood, P.J., and Wilder and Borrello, JJ.
PER CURIAM.

Defendant appeals by leave granted an order granting plaintiff’s motion for a reduction of
alimony payments and denying defendant’s motion for an increase in spousal support. We
affirm.

Defendant first asserts the trial court erred in modifying the alimony agreement because
the agreement was non-modifiable. We disagree. The goal of alimony is to balance the incomes
and needs of the parties in such a manner that neither party will be impoverished; rather it should
be based on what is just and reasonable under the circumstances. Moore v Moore, 242 Mich
App 652, 654; 619 NW2d 723 (2000). Upon a showing of changed circumstances, the alimony
award can be modified, but the modification must be based on new facts or changed conditions
arising since the judgment of divorce. Id. The trial court’s factual findings regarding the
modification of an alimony award are reviewed for clear error. Id. "A finding is clearly
erroneous if the appellate court is left with a definite and firm conviction that a mistake has been
made." Id. at 654-655. There is a statutory power to modify alimony that is not contingent upon
triggering language contained in the judgment. Rickner v Frederick, 459 Mich 371, 379; 590
NW2d 288 (1999).
Pursuant to MCL 552.28, individuals in Michigan have a statutory right to petition a
court for a modification to a judgment of alimony.1 "[T]he statutory right to seek modification
1 On appeal, neither party discusses the statutory right to modification of an alimony award.
However, the statutory right existed in 1983 at the time the parties agreed upon the alimony
provision. See Esslinger v Esslinger, 9 Mich App 11; 155 NW2d 702 (1967).
of alimony may be waived by the parties where they specifically forgo their statutory right to
petition the court for modification and agree that the alimony provision is final, binding, and
nonmodifiable." Staple v Staple, 241 Mich App 562, 578; 616 NW2d 219 (2000). In
continuing, the Court explained:
Without prescribing any "magic words," we hold that to be enforceable,
agreements to waive the statutory right to petition the court for modification of
alimony must clearly and unambiguously set forth that the parties (1) forgo their
statutory right to petition the court for modification and (2) agree that the alimony
provision is final, binding, and nonmodifiable. Furthermore . . . this agreement
should be reflected in the judgment of divorce entered pursuant to the parties'
settlement. [Id. at 581.]
In the present case, the alimony provision in the property settlement did not specifically
declare that the parties were forgoing their statutory right to modification, nor did the alimony
provision state that it was "final, binding and nonmodifiable." Furthermore, the judgment of
divorce did not address any waiver of modifiability of the alimony provision.
Defendant contends that the property settlement was not merged into the judgment of
divorce, and therefore, the alimony is not subject to modification. In Marshall v Marshall, 135
Mich App 702, 708; 355 NW2d 661 (1984), this Court stated, "[t]raditionally, once the parties
enter into a property settlement and obtain approval of it, the trial court may not modify the
settlement in the absence of fraud, duress or mutual mistake, or for such other causes as any
other final judgment may be modified." Because there was no evidence presented of fraud,
duress or mistake, defendant asserts the trial court did not have the authority to modify the
alimony provision that was contained in the property settlement.
We conclude that Marshall does not preclude the modification of the alimony agreement
in this case. First, Marshall explicitly applies to property settlements and does not reference
alimony directly. More importantly, review of the record reveals that the parties stipulated in
1987 to modify the judgment of divorce to include the alimony provision. Therefore,
defendant’s reliance on the Marshall decision is misplaced, and it is presumed the parties did not
intend to waive their statutory right to modify the alimony agreement.2 The parties entered into
the stipulation for modification of the judgment of divorce on October 23, 1987. That stipulation
begins as follows:
It is stipulated by and between the parties, Howard S. Goldberg, Plaintiff
and Alice D. Goldberg, Defendant, that the Judgment of Divorce of June 24, 1983
may and the same shall be amended to provide as follows:
2 The record reveals that the parties modified the alimony provision on other occasions. More
importantly, at the commencement of the underlying hearing, defense counsel agreed that
alimony was modifiable and, in fact, sought an increase in alimony. At the continuation of the
hearing, defense counsel raised the Marshall decision, despite the prior case history.
I. Alimony
Alimony shall be paid by Husband to Wife in the amount of [. . .]
This stipulation demonstrates that the parties intended to amend the judgment of divorce to
include the alimony provision, as opposed to allowing it to remain a provision of the property
settlement. Accordingly, the trial court was entitled to modify the alimony award, MCL 522.28.
Defendant next contends the trial court erred in reducing spousal support where there was
no evidence that plaintiff needed support to be reduced. We disagree. This Court reviews a trial
court’s factual findings in relation to an order modifying alimony for clear error. Thornton v
Thornton, 277 Mich App 453, 458; 746 NW2d 627 (2007). If the factual findings were not
clearly erroneous, the trial court’s ruling is reviewed to determine whether it was "fair and
equitable in light of the facts." Id. at 458-459. "This Court must affirm the trial court's decision
regarding spousal support unless we are firmly convinced that it was inequitable." Id. at 459.
In the present case, defendant improperly asserts that a modification of alimony is only
proper when the party who makes the alimony payment is capable of demonstrating that he or
she is no longer able to make the payment. To the contrary, Stoltman v Stoltman, 170 Mich App
653, 659; 429 NW2d 220 (1988), the case upon which defendant relies, stands only for the
proposition that the party who petitions the court for a change in alimony carries the burden of
proving that the circumstances justify the proposed change. Here, because plaintiff proved such
a change in circumstances by demonstrating that his income had decreased and that defendant
inherited a large sum from her mother, the trial court was justified in modifying the alimony
agreement.
Defendant next contends the trial court erred in making the modification of alimony
retroactive. We disagree. "The interpretation and application of court rules and statutes presents
a question of law that is reviewed de novo." Staff v Johnson, 242 Mich App 521, 527; 619
NW2d 57 (2000).
As provided by MCL 552.603(2), "[r]etroactive modification of a support payment due
under a support order is permissible with respect to a period during which there is pending a
petition for modification, but only from the date that notice of the petition was given to the payer
or recipient of support." In arguing retroactive modification was inappropriate, defendant asserts
that plaintiff prevented the evidentiary hearing from occurring in a timely manner and the
modification essentially would force defendant to live off of her savings for two years while
support was not being paid. In making such an argument, defendant cites to Rapaport v
Rapaport, 158 Mich App 741, 752; 405 NW2d 165 (1987), for the proposition that "the recipient
of spousal support should not have to invade her savings to support herself." Defendant is
incorrect. Rapaport explicitly states that the plaintiff in that particular case should not have to
invade her personal assets to pay attorney fees. Attorney fees are not at issue in this case.
Moreover, there is no record evidence holding that plaintiff deliberately delayed the proceedings
to create a hardship, and any delay is not relevant to the merits of plaintiff’s petition for
reduction.
Defendant further argues that because her inheritance was not received until four months
after the petition was filed, retroactive modification was improper. The trial court has discretion
to retroactively modify the alimony payment and took into consideration undue hardship as well
as defendant’s substantial assets. MCL 552.603(2). On this record, we cannot conclude that the
trial court abused its discretion.
Finally, defendant asserts the trial court erred in calculating the modified award in
reliance on a "fictional rate of return." We disagree. Review of the record reveals that plaintiff
offered testimony regarding rates of return, while defendant introduced evidence of her assets,
income, and obligations. After the trial court ruled on the reduction of alimony, defendant filed a
motion for reconsideration seeking to introduce evidence of her rate of return. The trial court
denied the motion for reconsideration. It is not an abuse of discretion to deny a motion for
reconsideration based on facts or legal theory that could have been pleaded or argued before the
trial court’s original order. Charbeneau v Wayne Co General Hosp, 158 Mich App 730, 733;
405 NW2d 151 (1987).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello

Property Division

Issues: Divorce;
Property division; Sparks v. Sparks; Dart v. Dart;
Division of the farm property; Hanaway v. Hanaway; Reeves v. Reeves;
Division of farm rental income;
Attorney fees; Reed v. Reed; MCL 552.13; MCR 3.206(C); Smith v. Smith;
Alleged misconduct as a basis to sustain the award of attorney fees

Court: Michigan Court of Appeals (Unpublished)
Case Name: Bowser v. Bowser
e-Journal Number: 41617
Judge(s): Per Curiam - Hoekstra, Whitbeck, and Talbot

The trial court did not err in concluding the farm was not separate property where it was clear both parties actively managed the farm and the proceeds were partly used for marital purposes.

The parties did not dispute the 78 percent of the property at issue was a gift from the defendant-husband's parents and held in his trust.

Defendant argued the trial court erred in determining the whole of the farm was a marital asset subject to division, contending the record showed he maintained a separate 78 percent interest in the farm, which was not divisible as a marital asset.

The court noted the farm was a fully operational business, first as a cow-milking operation and then for selling cash crops.

While the record showed a dispute about how much involvement the plaintiff-wife had, the case was analogous to the business in Hanaway.

It was clear from the record the farm account, which was funded with proceeds from the farm's milking operation, cash crops, and rental income, was used to pay electricity, propane, and car insurance bills for the family, as well as for farm and property-related expenses.

The court also was not left with a definite and firm conviction the trial court's division of the farm rental income was inequitable.

However, the court reversed and remanded the trial court's award of attorney fees to the plaintiff, concluding she did not meet her burden to show she was unable to cover her attorney fees and she did not establish the defendant was able to pay the fees as required by MCR 3.206(C)(2)(a).

Plaintiff also failed to demonstrate the fees she requested were incurred due to defendant's alleged misconduct.

On remand, the trial court was instructed to make findings about plaintiff's financial needs and whether defendant's misconduct directly resulted in plaintiff incurring the fees she requested. Affirmed in part, reversed in part, and remanded.
— full case follows
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
MARGARET ANN BOWSER,
Plaintiff-Appellee,
UNPUBLISHED
January 22, 2009
v No. 279007
Saginaw Circuit Court
TIM HOWARD BOWSER,
LC No. 02-044743-DM
Defendant-Appellant.
Before: Hoekstra, P.J., and Whitbeck and Talbot, JJ.
PER CURIAM.
Defendant Tim Bowser appeals from the parties’ judgment of divorce. Tim Bowser’s
issues on appeal involve the property division and an award of attorney’s fees to plaintiff
Margaret Bowser. We affirm in part, reverse in part, and remand for further consideration of
certain specified matters consistent with this opinion.
I. Basic Facts And Procedural History
The parties were married in 1977. They met when Margaret Bowser was a little over
fifteen years old. Margaret Bowser moved in with Tim Bowser a year before their wedding
when she was seventeen. Three children were born during the marriage, all of whom are now
adults.
Tim Bowser’s father was a dairy farmer who inherited 40 acres from his father and then
continued to add acreage until the property, known as Bowser Farms, was 288 acres and had two
houses on it. 100 percent interest in Bowser Farms Limited Partnership was held in the Tim
Bowser Revocable Living Trust. 78 percent interest in the property was acquired by Tim
Bowser’s trust as a gift from his parents. Before 1995, it was a cow milking operation. The
cows were then sold and from then onward crops were grown to be sold. The property was
appraised twice: once in 2002 at $520,000 and once in 2005 at $600,000. An annuity payable to
Tim Bowser’s parents was set up in 1982 to buy a 16 percent interest in the limited partnership
portion in the farm. To pay the annuity, $1,320 was monthly taken out of a farm account into
which farm proceeds were deposited and from which farm-operating expenses were paid.
Margaret Bowser was obligated by a promissory note for part of the annuity fund and issued
some of the checks to the annuity fund for Tim Bowser’s parents. Margaret Bowser testified that
she believed that she and Tim Bowser were making annuity payments in order to purchase the
whole farm and that they owned the farm jointly. Margaret Bowser, along with Tim Bowser and
-2-
his parents, signed a quitclaim deed in 1991, which released Margaret Bowser’s interest in the
property and named Tim Bowser as sole trustee of the trust that held the property. Margaret
Bowser testified that she did not read the deed before signing it, did not receive an advance copy
of the document, and was not told the scope of the document.
Margaret Bowser testified that she has been working on the farm ever since she met Tim
Bowser. Margaret Bowser and her daughter, Lisa Montgomery, testified that Margaret Bowser
helped with the dairy farm, drove tractors, helped cultivate crops, kept the lawn, and did the
bookkeeping. She did this work in addition to keeping the house, cooking, and raising the
children. Tim Bowser testified that his parents, who worked the farm previously, worked right
alongside each other and that he would describe his work relationship with Margaret Bowser as
the same. Tim Bowser also testified that Margaret Bowser helped on the farm for five weeks
during the growing season and only occasionally worked an 11- or 12-hour day.
Margaret Bowser testified that she filed for divorce because of Tim Bowser’s drinking
problems. In June 2002, Margaret Bowser moved from the marital home to the second house on
the property with one of her daughters. Tim Bowser claims he paid almost $13,000 from the
farm account to have repairs done to that second house. In 2005, the net profit on the farm was
$7,704 and an additional $2,193 was received from a government farm subsidy program. In
2005, Margaret Bowser took $500 out of the farm account to reimburse herself for fixing a gas
leak at the second house. Tim Bowser paid his car insurance from the farm account. During
2004 and 2005, Tim Bowser paid both his and Margaret Bowser’s propane and electricity bills
from farm proceeds. Replacement of tools and replacement of a tool shed after a fire were also
paid from the farm account. Tim Bowser testified that Margaret Bowser left the second house
with significant damage.
In 2004 and 2005, Margaret Bowser and Tim Bowser filed their taxes separately.
Beginning in 2004, Tim Bowser decided to stop farming the property and he rented it out for
about $23,870 a year for two years. The proceeds from crops in 2004 and 2005 were included on
Tim Bowser’s income tax returns. Margaret Bowser testified that she did not pay any income
taxes on those proceeds.
Regarding Bowser Farms, the trial court concluded as follows:
The Court finds that the entirety of the real property comprising Bowser
Farms is a marital asset subject to equitable distribution. [Tim Bowser]’s claim
that 78% of the Farm is separate property fails, due to the fact that he failed to
keep any part of the [f]arm real property or farm business separate. All the
evidence is that Bowser Farms was, during all times alluded-to [sic] in the record,
maintained and operated as a single commercial enterprise.
Tim Bowser now appeals.
-3-
II. Division Of Assets
A. Standard Of Review
We review the trial court’s factual findings for clear error.1 "A finding is clearly
erroneous if this Court, on all the evidence, is left with a definite and firm conviction that a
mistake was made; the appellant bears the burden of showing that a mistake was made."2 If no
clear error is found, we will uphold the trial court’s ultimate dispositional ruling unless we are
left with a firm conviction that the property division was inequitable in light of the facts.3
B. Division Of The Farm Property
Property that is received by one spouse as an inheritance but is kept separate from marital
property is generally deemed to be separate property that is not subject to division.4 However,
the nature of a separate asset acquired by one spouse as a gift can change and become marital
property if the asset is managed actively and its proceeds are used for marital purposes.5
The parties do not dispute that the 78 percent of the property in question was a gift from
Tim Bowser’s parents and held in Tim Bowser’s trust. But Tim Bowser argues that the trial
court erred in concluding that the whole of the farm was a marital asset subject to division. Tim
Bowser asserts that the record shows that he maintained a separate 78 percent interest in the farm
that was not divisible as a marital asset.
Tim Bowser relies on several cases to support his position. In Hanaway v Hanaway, this
Court concluded that because the plaintiff solely handled the child-rearing and household duties,
thereby freeing the defendant to build his family’s company and increase the value of the
company stock that had been gifted to him over the years by his father, the trial court erred in
treating the company as the defendant’s separate property.6 In Reeves v Reeves, this Court
concluded that the marital estate should include the appreciation in value of separate assets that
the defendant actively managed during the marriage while other passive investments should be
excluded.7 The Supreme Court agreed with the rationale this Court applied in these cases in
1 Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992).
2 Berger v Berger, 277 Mich App 700, 723; 747 NW2d 336 (2008) (quotation and citation
omitted).
3 Sparks, supra at 152.
4 Dart v Dart, 460 Mich 573, 584-585; 597 NW2d 82 (1999).
5 See, e.g., Reeves v Reeves, 226 Mich App 490, 495-497; 575 NW2d 1 (1998); Hanaway v
Hanaway, 208 Mich App 278, 293-294; 527 NW2d 792 (1995).
6 Hanaway, supra at 293-294.
7 Reeves, supra at 495-497.
-4-
Dart v Dart: "We recognize that, in certain situations, a spouse’s separate assets, or the
appreciation in their value during the marriage, may be included in the marital estate."8
Here, it is clear that both parties actively managed the farm, which was a fully
operational business, first as a cow-milking operation and then for selling cash crops. The record
does reflect a dispute as to how much involvement Margaret Bowser had. Regardless, the asset
was actively managed, and, analogous to the business in Hanaway, the proceeds were partly used
for marital purposes. Tim Bowser focuses on the trust and the farm funds, asserting that they
remained separate property and were not co-mingled with marital property. However, it is clear
from the record that the farm account, which was funded with proceeds from the farm’s milking
operation, cash crops, and rental income, was used not only to pay farm and property-related
expenses, but also to pay propane, electricity, and car insurance bills for the family. Thus, the
trial court did not err in concluding that the farm was not separate property, and it properly made
factual findings to support this conclusion.
C. Division Of Farm Rental Income
Tim Bowser contends that the division of the $47,740 in farm rental income from 2004
and 2005 was improper because: (1) Margaret Bowser only had a 22 percent interest in the farm
and (2) the money was not available for distribution to either party because it was spent on farmrelated
expenses and the mutual support of the parties.
With respect to his first contention, Tim Bowser argues that, if this Court concludes that
the 78 percent interest in Bowser Farms should not have been divided as a marital asset, then the
78 percent of the income from renting the farm in 2004 and 2005 should also not be divided as a
marital asset. This argument fails, however, because, as concluded above, the trial court did not
err in finding that the farm was not separate property.
Regarding Tim Bowser’s second contention, in concluding that $47,740 in rental income
was part of the marital estate, consisting of $23,870 for each 2004 and 2005, the trial court
reasoned that the amount had a "solid basis in the evidence." Tim Bowser claims that the trial
court clearly erred in this finding because the rental income received in 2004 and 2005 had been
spent on the farm and the parties’ expenses. We disagree. First, Tim Bowser has not properly
presented this argument by failing to offer any authority in support of this claim.9 Second, there
is no dispute that the rental income for 2004 and 2005 was $47,740, and besides presenting a tax
return form for calendar year 2004, Tim Bowser presented no documentary evidence to support
his claims regarding the distribution of the rental income for 2005 or regarding how he spent any
of the rental income.10 Accordingly, we are not left with a definite and firm conviction that the
trial court’s division of the rental income was inequitable.
8 Dart, supra at 585 n 6.
9 See In re Indiana Michigan Power Co, 275 Mich App 369, 376; 738 NW2d 289 (2007).
10 See Ward v Conrail, 472 Mich 77, 85-86; 693 NW2d 366 (2005); M Civ JI 6.01.
-5-
III. Attorney Fees
A. Standard Of Review
Tim Bowser appeals the award of attorney fees to Margaret Bowser, arguing that she is
capable of paying the fees herself because she will be awarded a large sum of money and
because she has higher earnings than he does. We review the trial court’s grant of attorney fees
for an abuse of discretion.11 We review for clear error the findings of fact on which the court
bases its award of fees, and we review de novo any questions of law.12 "An abuse of discretion
occurs when a court selects an outcome that is not within the range of reasonable and principled
outcomes."13
B. Legal Standards
In general, attorney fees are not recoverable unless authorized by statute, court rule, or
common law.14 In domestic relations cases, the granting of attorneys fees are authorized by
statute and by court rule.15 The requesting party must allege facts to show that her or she is
unable to cover the expense of the court action and that the other party is able to pay or that the
fees were incurred because the other party refused to comply with a court order.16 The party
should not be required to invade assets being used for support to satisfy attorney fees.17
C. Application
Margaret Bowser first argues that the award should be sustained because the cash
distribution received from the divorce, which she asserts she relies on for support, cannot be
invaded to cover her attorney’s fees. However, evidence in the record showing that Margaret
Bowser will rely on those funds for support is scarce. It is true that neither party was awarded
spousal support. But the record shows that in addition to the large cash distribution coming to
Margaret Bowser, she has an earning capacity commensurate with her degree and that she is
employed. Margaret Bowser testified at trial that she was then making $16.73 an hour and
working 72 hours a pay period. Margaret Bowser has not provided documentation of her
inability to cover expenses. Thus, Margaret Bowser did not meet her burden to show that she is
unable to cover her attorney fees. Moreover, Margaret Bowser did not show that Tim Bowser
was able to pay the fees as required by MCR 3.206(C)(2)(a).
11 Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005).
12 Id.
13 Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007).
14 Reed, supra at 164.
15 MCL 552.13; MCR 3.206(C); Reed, supra at 164.
16 MCR 3.206(C)(2); see also Smith v Smith, 278 Mich App 198, 207-208; 748 NW2d 258
(2008).
17 Smith, supra at 207.
-6-
Margaret Bowser’s second argument to sustain the award is based on Tim Bowser’s
alleged misconduct. Even if the party requesting fees does not require financial assistance, the
trial court may award attorney fees if there has been misconduct by the other party that directly
resulted in the amount requested.18 In the instant case, the record shows misconduct by both
parties regarding the court proceedings. Tim Bowser paid himself wages in violation of the
stipulated order regarding the farm account disbursements and the trial court had to reimburse
Margaret Bowser for that amount. In addition, Tim Bowser stopped documenting and reporting
on proceeds from the farm operations, ignoring subpoenas because "they came so numerously
[he] got tired of taking time off from work to answer them." Tim Bowser also continued to
make payments from the account and did not account for them after April 2005, as required by
the order. Conversely, Margaret Bowser caused extra litigation by filing a frivolous motion for
support in October 2004, claiming that she was unemployed. But employment records and
Margaret Bowser’s 2004 tax return show that she had in fact been employed since July 2004.
The motion was later abandoned. Further, like the plaintiff in Reed v Reed, Margaret Bowser did
not establish that the fees she requested were incurred as a result of Tim Bowser’s misconduct.19
Under these circumstances, we reverse and remand the trial court’s award of attorney
fees. On remand, the trial court must make findings regarding Margaret Bowser’s financial
needs and whether Tim Bowser’s misconduct directly resulted in the incurrence of the fees
requested.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. No taxable costs pursuant to MCR 7.219, neither party having prevailed in full.
We do not retain jurisdiction.
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
/s/ Michael J. Talbot
18 Reed, supra at 165.
19 Id.

Mom survives custody Appeal

WHAT IS THE IMPACT OF CHURCH SELECTION IN A CUSTODY MATTER?

Issues: Divorce; Custody; Best interest factors (b), (d), (e), (f), (i) and (k); Bowers v. Bowers; Fletcher v. Fletcher; Mogle v. Scriver; McCain v. McCain; Treulte v. Treulte; National Waterworks, Inc. v. International Fid. & Sur., Ltd.; Gorelick v. Department of State Hwys.
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
INGRA LISA MILES,Plaintiff-Appellee,
UNPUBLISHED,October 14, 2008
v No. 283891,Clinton Circuit Court,TIMOTHY D. MILES,
LC No. 06-018951-DM,Defendant-Appellant.
Before: Wilder, P.J., and Markey and Talbot, JJ.,PER CURIAM.
e-Journal Number: 40736

The trial court properly granted judgment for the plaintiff-wife granting her sole physical custody of the parties' three children.

This child custody appeal concerned only two of the children, as the third child was now legally considered an adult.

Although the trial court erred in concluding factor (f) favored neither party, the court held it did not need to overturn the custody determination.

The court concluded the trial court erred in not weighing factor (f) in defendant's favor.

The trial court also determined factors
(d) [ERROR SHOULD BE B] ( EDUCATION AND RELIGION)
and (e) (PERMNENCE OF FAMILY UNIT)
favored plaintiff,

factors
g) ( mENTAL AND PHYSICAL HEALTH)
and
(j) ( FACILITATE RELATION SHIP WITH OTHER PARTY)
favored defendant,

factor (i) should be considered, and the remaining factors weighed equally.


The court found no error as to those factors. In light of the importance the trial court placed on the children's comments, it could not be said the custody decision was outside the range of principled outcomes even considering the erroneous determination of factor (f). Affirmed.
—
In this child custody action, defendant appeals by right from a judgment for the plaintiff
granting her sole physical custody of the parties’ three children. This child custody appeal
concerns only two of the children, as the third child is now legally considered an adult. We
affirm.
Defendant’s argues on appeal that the trial court’s conclusions regarding best interest
factor (b), (d), (e), (f), (i) and (k). The best interest factors are set forth in MCL 722.23:
(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(a)-(l).]

"The trial court must consider each of these factors and explicitly state its findings and
conclusions regarding each." Bowers v Bowers, 198 Mich App 320, 328; 497 NW2d 602 (1993).
However, "[b]rief, definite, and pertinent findings and conclusions on the contested matters are
sufficient, without over elaboration of detail or particularization of facts." MCR 2.517(A)(2).

In custody cases, a court is not obliged to "‘comment upon every matter in evidence or declare
acceptance or rejection of every proposition argued.’" Fletcher v Fletcher, 447 Mich 871, 883;
526 NW2d 889 (1994), quoting Baker v Baker, 411 Mich 567, 583; 309 NW2d 532 (1981).
In
reviewing the trial court’s findings, this Court should defer to the fact-finder’s determination of
credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).


Factor (b) (education and religion)

The trial court found that this factor did not favor either party,
reasoning that

1. neither parent seems to have continued the children’s religious training.

The trial court noted that even though
2.defendant testified that he tried to take the family to Mt. Hope Church,

3. plaintiff apparently never shared his enthusiasm for the church’s tenets.

4.Defendant argues that because
plaintiff has decided to stop attending his church, the evidence shows that it is he who will
"continue" their religious education in their "religion or creed."

5.On this point, the following
discussion from McCain v McCain, 229 Mich App 123, 125-126; 580 NW2d 485 (1998) is
instructive:
5.a In determining factor b, "[t]he 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," . . . the
trial court focused on a religious dispute between the parties that, in large part, led
to the dissolution of the marriage.

5.b It was clearly the parties who heavily weighed
this religious dispute, not the court.

5.cThe evidence established that plaintiff
stopped attending the Lutheran church and began worshipping at an alternative
home church before the separation, and that, after that, both children attended
services with her during the marriage, choosing at times to attend with plaintiff
rather than with defendant at Trinity Lutheran. Also, although plaintiff stopped
attending Lutheran services, she testified that she was still practicing the Christian
religion.

5.d We note that the trial court stated: "While others might find the
differences between the religious views of these two churches, such as whether
baptism should be as an infant or as an adult, to be not very significant, to Rodger
and Laura McCain these are matters of great significance."

6.In ruling on factor b,
the trial court stated: "Since the parties view the differences between their two
churches as being so major, the Court must also." It was proper for the trial court
to consider the magnitude of the force that drove the parties apart. Its
consequences were not overweighed.
7.Before the religious dispute, this family
attended the Lutheran church. Accordingly, it was reasonable for the trial court to
consider defendant as more prepared to continue the children in their religion and
to give this factor some weight in his favor.
YOU HAVE TO IMPRESS UPON THE COURT THAT RELIGIOUS PREFERENCE IF OF GREAT SIGNIFICANCE.
8.Unlike McCain, the parties to the present appeal did not argue below that plaintiff’s decision not to take the children to Mt. Hope Church is a matter of great significance or an underlying cause of the dissolution of the marriage.
YOU CANNOT USE RELIGION TO CLEAN UP YOUR BAD LIFE
In context, defendant raised the issue of his religious beliefs
below to counter assertions about his allegedly bad behavior.
IF YOU THINK THE CHOICE OF WHICH CHURCH IS SIGNIFICANT YOU MUST SAY WHY
He did not contend that the
differences between the churches the parties attend is of such significance that the court must
consider who is best able to keep the children attending Mt. Hope Church. Accordingly, the
court did not err in weighing factor (b) equally.
Factor (d)
Defendant argues that the trial court incorrectly ruled in plaintiff’s favor on this factor
and that the children had an equally stable, if not more stable, environment with him. The
court’s findings regarding this factor are as follows:
This factor favors plaintiff, regardless of the fact she arbitrarily and
inaccurately accused defendant of engaging in improper conduct with the
children, and regardless of her threat to continue to sabotage defendant’s
relationship with the children.
The court agrees with Dr. Vander Jagt [sic], that the children have a close
relationship with plaintiff, and they have no desire to have their custody removed
from her.
The factor is weighed in plaintiff’s favor not because she has provided a
stable and satisfactory atmosphere, but because regardless of the atmosphere she
has provided, and regardless of her unfortunate attempts to drive a wedge between
defendant and the children, the children are still more comfortable in their current
environment than they would be if they were abruptly placed in defendant’s
custody.
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The court clearly considered plaintiff’s behavior, including false allegations made against
defendant, and the nature of the children’s custodial environment, but nonetheless determined
that it was desirable to maintain the children’s current environment given VanderJagt’s
observations and the children’s preferences. As the court noted in discussing factor (i), "the
court has taken into serious consideration the comments made to the court by the minor
children." The court’s reasoning is sound and based on the record evidence. The court did
consider the consequences of plaintiff’s action when it addressed factor (j), which it determined
"weighed heavily against plaintiff, for the reasons previously set forth."
Factor (e)
Defendant contends that the trial court erred in looking only at plaintiff’s home since
either party could provide permanence. This is a misunderstanding of the court’s reasoning. The
court stated the following:
The court is satisfied that the children are as comfortable as they can be in
their current circumstances, that plaintiff intends to maintain what for them has
become a stable environment, and while defendant offers a return to the marital
and family home, the level of current comfort with plaintiff maintained by the
children causes this factor to be weighed slightly in plaintiff’s favor.
Again, the court noted in discussing factor (i) that it "has taken into serious consideration
the comments made to the court by the minor children." The court’s analysis of factor (e)
appears to have been significantly impacted by the children’s stated preferences. Considering
the court’s superior position in this regard, its conclusion on factor (e) is not erroneous.
Factor (f)
Whether the court erred on this factor is a close question. The court concluded as
follows:
There was no evidence that would permit the court to weigh the moral
fitness of one party favorably as to the other party, at least to the extent morality
relates to one’s conduct.
In terms of which party is better equipped to teach the children right from
wrong, each party comes to that obligation from a different perspective, but
neither perspective can be discounted. This factor is weighed evenly.
This Court recently noted the following with respect to factor (f), the moral fitness of the
parties:
[W]ith respect to extramarital affairs . . . [,] a spouse’s "questionable conduct is
relevant to factor f only if it is a type of conduct that necessarily has a significant
influence on how one will function as a parent." Fletcher, supra at 887.
Examples of such conduct include, but are not limited to, "verbal abuse, drinking
problems, driving record, physical or sexual abuse of children, and other illegal or
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offensive behaviors." Id. at 877 n 6. Trial courts must "look to the parent-child
relationship and the effect that the conduct at issue will have on that relationship."
Id. at 877. Thus, under factor f, the issue is not who is the morally superior adult,
but rather "the parties’ relative fitness to provide for their child, given the moral
disposition of each party as demonstrated by individual conduct." Id. [Berger v
Berger, 277 Mich App 700, 712-713; 747 NW2d 336 (2008) (emphasis in
original).]
Contrary to the court’s observation, there was evidence from which the court could
conclude that defendant’s moral fitness was superior to plaintiff’s. Specifically, as the court
noted, the judge who entered the judgment of divorce had concluded that the allegations that lead
to the suspension of defendant’s parenting time "were not supported by the evidence." Further,
the court observed the following:
The court can think of no greater harm that can be accomplished within a family
unit that has undergone a divorce between the parents than the damage caused by
one parent who refuses to recognize the rights of the other parent, who continually
misrepresents the actions of the other parent, who refuses to cooperate in
providing important information to the other parent, and who promises to do
whatever she can to sabotage the relationship between the other parent and the
minor children.
It is clear from the evidence and the context of the comments in the opinion that plaintiff is the
person described in this paragraph.
Plaintiff’s conduct arguably displays a selfish disposition to lie and manipulate, conduct
not in the interests of the children. This not only impacts the children directly by undermining
their relationship with defendant, but also indirectly: at the very least, after observing such
behavior for a long time, the children might well learn that such behavior is acceptable. Thus,
the court did err in not weighing factor (f) in defendant’s favor.
Factor (i)
Defendant argues that the trial court let the children decide the custody trial and allowed
the children’s preference to outweigh the other best interest factors. Defendant also contends
that the trial court decision to meet the children as a group, instead of individually, is a palpable
abuse of discretion.
Here, the trial court considered more than just the preferences of the children, as
defendant contends. The trial court stated that it took the comments of the minor children into
serious consideration, indicating that the comments were "frank, honest, sincere, and rational,
and worthy of serious consideration." VanderJagt, after evaluating both parents and three
children, also concluded that the children were best suited in plaintiff’s custody. Defendant is
correct that a child’s stated preference does not automatically outweigh the other best interest
factors. Treulte v Treulte, 197 Mich App 690, 694; 495 NW2d 836 (1992). But, it is also true
that a court need not accord all the best interest factors equivalent weight when deciding the
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issue of custody. See McCain, supra at 131. It is clear from the record that the court considered
factor (i) significant, but that does not mean it treated it as dispositive.
Further, the assertion that the court erred in not interviewing the children separately is
unsupported by authority. "A party may not merely announce a position and leave it to this
Court to discover and rationalize the basis for the claim." Nat’l Waterworks, Inc v Int’l Fidelity
& Surety, Ltd, 275 Mich App 256, 265; 739 NW2d 121 (2007).
Factor (k)
Defendant argues that the trial court decision to weigh this factor equally was against the
great weight of the evidence. Defendant claims that the trial court failed to evaluate the
credibility of the parties and should have concluded that this factor favored defendant. Although
the trial court noted that the record is replete with allegations that both parties domestically
abused the other, the court discounted the incidents in terms of which party shouldered the
greater amount of the blame. Ultimately, the trial court was obligated to determine the weight
and credibility of the evidence presented, and it did just that. Gorelick v Dep’t of State Hwys,
127 Mich App 324, 333; 339 NW2d 635 (1983).
Although the court erred in concluding that factor (f) favored neither party, we need not
overturn the custody determination. The court determined that factors (d) and (e) favored
plaintiff, that factors (g) and (j) favored defendant, that factor (i) should be considered, and that
the remaining factors weighed equally. In light of the importance that the court placed on the
children’s comments, it cannot be said that the custody decision was outside the range of
principled outcomes even considering the erroneous determination of factor (f).
We affirm.
/s/ Kurtis T. Wilder
/s/ Jane E. Markey
/s/ Michael J. Talbot