Domestic Relations Review
IN THE DIVISION OF PROPERTY, THE COURT LACKS AUTHORITY TO DIVIDE FUTURE SOCIAL SECURITY BENEFITS IN AN ATTEMPT TO EQUALIZE FUTURE SOCIAL SECURITY INCOMES BETWEEN THE PARTIES BECAUSE UNDER THE DOCTRINE OF FEDERAL PREEMPTION, THE COURT CANNOT RULE IN A MANNER CONTRARY TO THE SOCIAL SECURITY ACT
Lowrie v. Lowrie, (#256631, Unpublished) Michigan Court of Appeals, October 18, 2005
WHILE A DOWER INTEREST DOES NOT PRECLUDE FORECLOSURE OF A MORTGAGE TO WHICH THE DOWER INTEREST HOLDER NEVER AGREED, UNDER CERTAIN CIRCUMSTANCES, THE DOWER RIGHTS CAN RIPEN INTO A JUDGMENT LEIN WHICH HAS A SUPERIOR POSITION TO THE PURCHASER AT A FORECLOSURE SALE
Rice v. Rice, (Unpublished #253843), November 17, 2005
IMPUTATION OF INCOME IN SETTING CHILD SUPPORT MUST CONSIDER VARIOUS FACTORS AS OUTLINED IN THE CHILD SUPPORT FORMULA NOT MERELY THE PROSECUTOR’S LARGELY UNSUBSTANTIATED ESTIMATE OF THE PAYOR’S POTENTIAL INCOME
Lewis v. Foster, (Unpublished #255035), November 17, 2005
AN EMPLOYEE’S PURCHASE OF SERVICE CREDITS TO EXPEDITE THE COMMENCEMENT OF HIS NORMAL RETIREMENT BENEFITS DOES NOT PRECLUDE THE ALTERNATE PAYEE FROM ALSO RECEIVING NORMAL RETIREMENT BENEFITS TO WHICH SHE IS ENTITLED UNDER THE JUDGMENT EARLIER THAN OTHERWISE ANTICIPATED
Baker v. Baker, (Published #253718), November 3, 2005
AN ORDER PROHIBITING PARTIES FROM COHABITING WITH AN UNRELATED MEMBER OF THE OPPOSITE SEX WHILE EXERCISING PARENTING TIME WITH HIS/HER CHILDREN IS NOT ERROR
Muller v. Muller, (Unpublished #259271), October 27, 2005
MCL 722.31 PROVIDES THAT A CHILD HAS A LEGAL RESIDENCE WITH EACH PARENT WITH JOINT LEGAL CUSTODY. A MOVE IN VIOLATION OF THAT PROVISION IS A SUFFICIENT “CHANGE OF CUSTODY” TO WARRANT AN EVIDENTIARY HEARING ON WHETHER THE MOVE NECESSITATES A CHANGE IN PHYSICAL CUSTODY OF THE PARTIES’ CHILD
Sehlke v. Vandermaas, (Published #262346) September 27, 2005
UPON A MOTION OR REQUEST FOR SPECIFIC PARENTING TIME MADE AT ANY TIME, PARENTING TIME MUST BE GRANTED IN SPECIFIC TERMS. MCL 722.27a ALSO REQUIRES THAT THE PARENTING TIME BE GRANTED IN “A FREQUENCY, DURATION, AND TYPE REASONABLY CALCULATED TO PROMOTE A STRONG RELATIONSHIP BETWEEN THE CHILD AND PARENT
Pickering v. Pickering, (#253342, Published) Michigan Court of Appeals, August 30, 2005
THE PATERNITY ACT STATES THAT “A CHILD THAT THE COURT HAS DETERMINED TO BE A CHILD BORN OR CONCEIVED DURING A MARRIAGE BUT NOT THE ISSUE OF THAT MARRIAGE” IS A CHILD THAT IS BORN OUT OF WEDLOCK. A DEFAULT DIVORCE JUDGMENT THAT REFLECTS THAT NO CHILDREN WERE BORN OF THE MARRIAGE OR EXPECTED TO BE CONSTITUTES A PROPER COURT DETERMINATION AS IT PERTAINS TO THE PATERNITY ACT
Barnes v. Jeudevine, (#252840, Unpublished) Michigan Court of Appeals, August 23, 2005
WHERE A SUPPOSED PARENT PAYS CHILD SUPPORT AND LATER FINDS THAT THEY ARE NOT THE BIOLOGICAL PARENT, THEY DO NOT HAVE A CLAIM OF UNJUST ENRICHMENT AGAINST THE TRUE BIOLOGICAL PARENT
Fonstad v. Teal, (#254051, Unpublished) Michigan Court of Appeals, July 21, 2005
GENERALLY, WHEN THE STATUTORY PRESUMPTION IN FAVOR OF PARENTAL CUSTODY AND THE PRESUMPTION IN FAVOR OF THE ESTABLISHED CUSTODIAL ENVIRONMENT CONFLICT, DUE PROCESS REQUIRES THAT THE PRESUMPTION REMAIN IN FAVOR OF CUSTODY OF THE PARENT AND THE THIRD PARTY MUST SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE BEST INTEREST OF THE CHILD REQUIRES THIRD PARTY CUSTODY. HOWEVER WHEN A PARENT’S CONDUCT IS INCONSISTENT WITH THE PROTECTED PARENTAL INTEREST, THAT IS, THE PARENT IS UNFIT, THE GENERAL RULE DOES NOT GOVERNTop of Page
Mason v. Simmons, (#257692, Published) Michigan Court of Appeals, June 28, 2005
GIVEN THE FATHER’S DRUG ABUSE HISTORY, HIS FAILURE TO COMPLY WITH THE DRUG TESTING REQUIREMENTS OF A LIMITED GUARDIANSHIP PLACEMENT PLAN PRECLUDED A FINDING OF “SUBSTANTIAL COMPLIANCE” WITH THE PLAN AND AFFORDED THE LIMITED GUARDIANS STANDING TO PURSUE CUSTODY UNDER MCL 722.26b
Hill v. Minnix, (Unpublished #261131), July 19, 2005
AN AGREEMENT TO IRREVOCABLY DESIGNATE LIFE INSURANCE PROCEEDS TO CONTINUE UNTIL A CHILD SUPPORT OBLIGATION TERMINATES IS ENFORCEABLE TO THE FULL EXTENT OF THE INSURANCE BENEFITS AVAILABLE
Lobaina v. Lobaina, (Published #260866), July 19, 2005
PARENTS CANNOT INCLUDE A BLANKET WAIVER TO THE “100 MILE” RESIDENCY PROVISIONS OF MCL 722.31 AS A TERM OF THEIR DIVORCE SETTLEMENT
Delamielleure v. Belote, (Published #254593), July 12, 2005
BIOLOGICAL FATHER HAD STANDING TO FILE MOTION TO CHANGE CUSTODY BECAUSE PRIOR FILIATION ORDER STIPULATED TO BY THE MOTHER WAS A COURT DETERMINATION THAT THE CHILD WAS NOT THE ISSUE OF HER MARRIAGE WHICH OCCURRED BEFORE THE BIRTH OF THE CHILD
McNamara v. Farmer, (Unpublished #260575), July 7, 2005
THE DETERMINATION OF WHETHER AN ESTABLISHED CUSTODIAL ENVIRONMENT EXISTS IS A FACTUAL ONE THAT NEEDS TO BE MADE INDEPENDENT OF PRIOR COURT ORDERS OR THE STIPULATION OF THE PARTIES
Schember v. Ruth, (Unpublished #259630), July 7, 2005
A TRIAL COURT MUST CONDUCT AN EVIDENTIARY HEARING BEFORE DECIDING A MOTION FOR RELIEF FROM JUDGMENT WHERE FRAUD IS ALLEGED UNLESS THE ALLEGATIONS RELATE TO A PARTY’S SEPARATE, INHERITED PROPERTY AND THERE IS NO “NEXUS” BETWEEN THE PROPERTY AND SOME ACTIVITY DURING THE MARRIAGE
Marie Michejlyszyn v. Walter Michajlyszyn, Michigan Court of Appeals, # 252681, 6-2-05, Unpublished
ALTHOUGH THE TRIAL COURT IS REQUIRED TO INSTRUCT THE JURY ON THE ELEMENT OF NOTICE IN A FELONY NONSUPPORT ACTION, A FAILURE TO DO SO DOES NOT WARRANT REVERSAL WHERE THE DEFENDANT’S SUBSTANTIAL RIGHTS WERE NOT AFFECTEDTop of Page
People of the State of Michigan v. Brad Tidik, Michigan Court of Appeals, # 252504, 5-31-05, Unpublishe
BEFORE DECIDING WHETHER TO MODIFY PARENTING TIME, THE COURT MUST CONDUCT AN EVIDENTIARY HEARING AND MAKE FINDINGS OF FACT ABOUT THE BEST INTERESTS OF THE CHILD
Reza Bayati v. Bahareh Bayati, Michigan Court of Appeals, # 258378, 5-31-05, Unpublished
A COURT MAY ONLY DEVIATE FROM THE CHILD SUPPORT FORMULA IF APPLICATION OF THE FORMULA WOULD BE UNJUST OR INAPPROPRIATE
Steven R. Radulovich v. Monica Kaufman, Michigan Court of Appeals, # 252647, 5-26-05, Unpublished
COURTS ARE ENCOURAGED TO KEEP SIBLINGS TOGETHER BECAUSE DOING SO IS USUALLY IN THEIR BEST INTEREST, BUT IF KEEPING THE CHILDREN TOGETHER IS CONTRARY TO THE BEST INTERESTS OF AN INDIVIDUAL CHILD, THE BEST INTERESTS OF THAT CHILD WILL CONTROL
Cynthia L. Gibbs v. Richard Hall, Michigan Court of Appeals, # 258538, Decided 4/14/05, Unpublished
UNDER FEDERAL LAW, A COMPETING STATE CREATED JUDGMENT LIEN WILL NOT BE GIVEN PRIORITY OVER A FEDERAL TAX LIEN UNTIL IT ATTACHES UNDER THE GOVERNING STATE LAW
Christine A. Richards v. Jeffrey Richards, United State of America Department of Treasury-Internal Revenue Service; United States of America, Counter-Plaintiff v. Christine A. Richards, Counter-Defendant, United States District Court, Western District of Michigan, Southern Division, Decided March 28, 2005; Unpublished
ALTHOUGH A PRO SE LITIGANT MAY NOT BE AWARDED ATTORNEY FEES UNDER MCR 2.114, A TRIAL COURT HAS THE DISCRETION TO FASHION AN APPROPRIATE REMEDY, INCLUDING AN AWARD OF ATTORNEY FEES, UNDER MCR 2.114(E)Top of Page
William E. Kasben v. Beryl W. Hoffman, Michigan Court of Appeals, # 247297; 253201; 254295, Decided March 24, 2005; Unpublished
CUSTODIAL PARENTS ARE NOT ENTITLED TO SHARED ECONOMIC RESPONSIBILITY FORMULA (SERF) APPLICATION ABSENT AN INITIAL CUSTODY/PARENTING TIME DETERMINATION OR A SUBSEQUENT MODIFICATION OF SUCH CUSTODY OR PARENTING TIME
Gehrke v. Gehrke (Published #253506), May 10, 2005
A PARTY MAY SUE ON A FRAUDULENT DIVORCE SETTLEMENT AGREEMENT INCORPORATED INTO, BUT NOT MERGED WITH, A JUDGMENT OF DIVORCE
Foreman v. Foreman (Published #250412), May 3, 2005
A NAMED BENEFICIARY TO ERISA PLAN BENEFITS MAY EXPRESSLY WAIVE THOSE RIGHTS THROUGH ENTRY OF A CONSENT JUDGMENT OF DIVORCE AND IS THEREAFTER NOT ENTITLED TO RETAIN THOSE BENEFITS UNDER FEDERAL PRE-EMPTION DOCTRINE
Moore v. Moore (Published #251822), April 28, 2005
MCL 600.5080(2) REQUIRES THAT THE CIRCUIT COURT “REVIEW” AN ARBITRATION AWARD REGARDING CHILD CUSTODY UPON A PARTY’S MOTION TO VACATE OR MODIFY THE AWARD. ALTHOUGH THE PARTIES’ AGREEMENTS MAY NOT WAIVE THE AVAILABILITY OF AN EVIDENTIARY HEARING IF THE CIRCUIT COURT DECIDES THAT A HEARING IS NECESSARY TO EXERCISE ITS INDEPENDENT DUTY UNDER THE CHILD CUSTODY ACT, A HEARING IS NOT REQUIRED IF THE CIRCUIT COURT IS ABLE TO INDEPENDENTLY DETERMINE WHAT PLACEMENT IS IN THE BEST INTERESTS OF THE CHILD
Patrick Joseph Macintyre v. Regina Maureen Macintyre, Michigan Supreme Court, #127963, Decided March 31, 2005
THE “PUBLIC POLICY” CONSIDERATION GRANTING SPECIAL TREATMENT TO RETURNING VETERANS SO AS NOT TO DISCOURAGE MILITARY SERVICE IS MISPLACED IN CHILD CUSTODY ACTIONS. SUCH A POLICY IS EXTRANEOUS TO ANY DETERMINATION OF THE CHILD’S BEST INTERESTS UNDER THE CHILD CUSTODY ACT AS WELL AS A DECISION ON WHETHER THE COURT HAS JURISDICTION UNDER THE UCCJEA
Johnson v. Johnson, (Unpublished #258062) March 1, 2005
CHILD SUPPORT MODIFICATIONS ARE TO BE BASED ON MICHIGAN’S CHILD SUPPORT MANUAL NOT THE SUPPORT ACTUALLY NEEDED TO MAINTAIN THE PARTIES' CHILD. IN CASES WHERE A PARENT’S INCOME VARIES SIGNIFICANTLY FROM YEAR TO YEAR, A THREE YEAR EARNINGS AVERAGE MAY BE USED IN THE CALCULATION
Moody v. Moody, (Unpublished #249870) March 1, 2005
AN EVIDENTIARY HEARING AND ANALYSIS OF THE TWELVE BEST INTEREST FACTORS IS MANDATED BEFORE CUSTODY CAN BE MODIFIED, EVEN ON A TEMPORARY BASIS. A TRIAL COURT’S APPLICATION OF MCL 722.31 IS NOT RESTRICTED TO REQUESTS FOR DOMICILE CHANGE ARISING OUT OF CUSTODY ORDERS ENTERED SUBSEQUENT TO THE ENACTMENT OF THE STATUTE
Olivia Grew v. Larry Bruce Knox II, Michigan Court of Appeals, #258339, February 24, 2005; Published
PLAINTIFF’S PATERNITY ACTION WAS BARRED WHERE THE MOTHER GOT MARRIED TO ANOTHER MAN WHILE SHE WAS PREGNANT BECAUSE THE CHILD WAS NOT “BORN OUT OF WEDLOCK,” AS REQUIRED BY THE PATERNITY ACT
William D. Numerick, Jr. v Heather A. Krull, aka Heather A. Smith, Michigan Court of Appeals, # 249172, February 15, 2005; Published
A DIVORCING COUPLE’S 1975 PRENUPTIAL AGREEMENT IS VALID EVEN THOUGH MICHIGAN DID NOT RECOGNIZE AGREEMENTS CONTEMPLATING DIVORCE AT THE TIME IT WAS EXECUTED AND THE COUPLE’S ASSETS GREW EXPONENTIALLY DURING THEIR 26 YEAR MARRIAGETop of Page
Verladia Reed v Gregory J. Reed, Michigan Court of Appeals, # 248895, February 8, 2005; Published
CONSENT JUDGMENT REQUIRING PAYMENTS OF A CHILD’S POST MINORITY TUITION COSTS CAN BE ENFORCED BASED ON THE CHILD’S DETRIMENTAL RELIANCE ON THE PROMISE TO PAY. HOWEVER, ON REQUEST THE FUTURE TUITION OBLIGATION CAN BE LIMITED BY THE COURT BASED ON CHANGED FINANCIAL CIRCUMSTANCES OF THE PAYER
Top v. Silver, (Unpublished # 250275) January 25, 2005
THE DIVORCING PARTIES CANNOT STIPULATE THAT THE COURT BE BOUND BY THE ARBITRATOR’S DECISION ON CHILD CUSTODY. ANY DE NOVO REVIEW OF THAT CUSTODY AWARD MUST BE MADE BY THE COURT AFTER A FULL AND FAIR EVIDENTIARY HEARING
Macintyre v. Macintyre, (Published #255368) January 11, 2005A GRANDPARENT WITHOUT FULL OR LIMITED GUARDIANSHIP STATUS HAS NO AUTHORITY TO SEEK COURT ORDERED VISITATION RIGHTS WITH HER GRANDDAUGHTER
Tieppo v. Schneider and Totten, (Unpublished #25147) December 28, 2004
THE PREMISE THAT A BIOLOGICAL FATHER DOES NOT HAVE THE RIGHT TO DENY PATERNITY AND THE DUTY TO PROVIDE FINANCIAL SUPPORT TO HIS CHILD IS A PREMISE THAT IS FIRMLY ROOTED IN HISTORICAL LEGAL TRADITION
N.E., as biological father of E.D.L, a minor, v. Cindy Hedges, Brian Hedges, and James C. Monk, United States Court of Appeals for the Sixth Circuit, # 03-6680; 04-5156, Decided December 20, 2004; Published
UNDER THE HAGUE CONVENTION, A COURT IS NOT BOUND TO ORDER RETURN OF WRONGFULLY REMOVED OR RETAINED CHILDREN IN BREACH OF A PARENT’S CHILD CUSTODY RIGHTS IF: 1) THE RESPONDENT PROVES BY CLEAR AND CONVINCING EVIDENCE THAT THERE IS A GRAVE RISK THAT THE CHILD’S RETURN WOULD EXPOSE THE CHILD TO PHYSICAL OR PSYCHOLOGICAL HARM OR 2) IF THE CHILD OBJECTS TO BEING RETURNED AND HAS ATTAINED DEGREE OF MATURITY AT WHICH IT IS APPROPRIATE TO TAKE ACCOUNT OF ITS VIEWSTop of Page
Guillermo Eduardo Enrique Bonilla-Ruiz v. Jennifer Jeanne Tuttle Bonilla, Michigan Court of Appeals, # 255772, Decided December 14, 2004; Unpublished
REGARDLESS OF WHAT TYPE OF ALTERNATIVE DISPUTE RESOLUTION IS USED BY THE PARTIES, THE CHILD CUSTODY ACT REQUIRES THE TRIAL COURT TO INDEPENDENTLY DETERMINE WHAT CUSTODIAL PLACEMENT IS IN THE BEST INTERESTS OF THE CHILDREN. A SHOWING OF CONCRETE PARTIALITY MUST BE SHOWN IN ORDER TO VACATE AN ARBITRATION ORDER
Reza Bayati v. Bahareh Bayati, Michigan Court of Appeals, # 254762, Decided December 14, 2004; Published
A COURT HAS THE POWER TO PROHIBIT AN INDIVIDUAL FROM FILING FRIVOLOUS PLEADINGS AS PART OF A PERSONAL PROTECTION ORDER. THIS BEHAVIOR OF FILING NUMEROUS FRIVOLOUS PLEADINGS COULD CONSTITUTE STALKING
Lisa Podgajski v. Brad Tidik, Michigan Court of Appeals, # 244392, Decided December 9, 2004; Unpublished
AN ATTORNEY MAY NOT PURSUE FORECLOSURE OF A MARITAL HOME BASED ON A MORTGAGE THE ATTORNEY OBTAINED PURSUANT TO A NEGOTIATION BETWEEN THE ATTORNEY AND HIS CLIENT’S EX-SPOUSE WHO WAS AWARDED THE HOME IN THE CONSENT JUDGMENT OF DIVORCE
Robert James Blaha, Jr. v Faupel & Associates, P.C., Michigan Court of Appeals, #250241, Decided December 2, 2004; Unpublished
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