Domestic Relations Review
A BIOLOGICAL FATHER LACKS STANDING TO RAISE THE EQUITABLE PARENT DOCTRINE REGARDING A FORMER HUSBAND’S POTENTIAL SUPPORT OBLIGATION
Irwin v. Gennette v. Irwin, (Unpublished, #285398), 11/18/08
THE COURT WILL NOT ALLOW A PARTY TO ESTABLISH AN EQUITABLE MORTGAGE OR LIEN ON THE PARTIES’ MARITAL HOME IN FAVOR OF ONE PARTY WHEN NO SUCH ARRANGEMENT IS CONTEMPLATED BY THE UNAMBIGUOUS TERMS OF AN ANTENUPTIAL AGREEMENT
Haas v. Hatz, ___Mich App___(2008), #279648, 11/13/08
(1) ASSESSING THE FEES OF A GUARDIAN AD LITEM IN A DOMESTIC CASE EQUALLY BETWEEN THE MOTHER AND FATHER DOES NOT VIOLATE AN EARLIER STATEMENT THAT THE COURT WOULD LATER DECIDE WHO WOULD PAY SUCH FEES INCLUDING HOLDING A PARTY AT FAULT SOLELY RESPONSIBLE. (2) SANCTIONS WILL NOT BE ASSESSED AGAINST THE PETITIONING PARTY IN A CUSTODY DISPUTE MERELY BECAUSE THE FACTS ALLEGED ARE LATER DISCOVERED TO BE UNTRUE FOR THOSE COSTS
Langlois v. Langlois, (Unpublished #280764), 10/30/08
THE SUBSTANCE OF A SECTION 45 HEARING IS FOR THE TRIAL COURT TO DETERMINE WHETHER THE SUPERINTENDENT HAD A GOOD REASON TO WITHHOLD HIS CONSENT TO ADOPT NOT WHETHER THE TRIAL COURT OR COURT OF APPEALS WOULD HAVE RENDERED A DIFFERENT DECISION FROM THAT MADE BY THE SUPERINTENDENT
Hampton v. Michigan Children's Institute, (Unpublished, #285670), 10/28/08
MICHIGAN COURTS ARE REQUIRED TO RECOGNIZE AND ENFORCE OTHER STATE’S CUSTODY DETERMINATIONS WHICH SUBSTANTIALLY CONFORM TO THE UCCJEA
Salter and Salter v. Nash and Salter, (Unpublished, #282955), 10/28/08
A DEFENDANT CAN BE FOUND TO BE IN CRIMINAL CONTEMPT AND SENTENCED FOR VIOLATING A PERSONAL PROTECTION ORDER (PPO) AFTER THE EXPIRATION OF THE PPO SO LONG AS THE ALLEGED VIOLATION OCCURRED WHILE THE PPO WAS STILL EFFECTIVETop of Page
Eldridge v. Eldridge, (Unpublished, #278470), 10/28/08
THE DOCTRINE OF LACHES REQUIRES A FINDING THAT THE PASSAGE OF TIME, COMBINED WITH A CHANGE IN CONDITION THAT WOULD MAKE IT INEQUITABLE TO ENFORCE A CLAIM
Nancy Doty, f/k/a/ Nancy Eby v. Lawrence Eby, (Unpublished, #279665), 10/23/08
A SETTLEMENT AGREEMENT MAY DIVIDE SOCIAL SECURITY BENEFITS IF THE PARTIES INTEND THE TRANSFER TO BE SPOUSAL SUPPORT RATHER THAN PART OF THE PROPERTY DIVISION
William L. Lowrie v. Karen A. Lowrie, (Unpublished, #278081), 9/ 23/08
AN AFFIDAVIT OF PARENTAGE CAN ONLY BE VALID IF SIGNED WHEN A CHILD IS BORN OUT OF WEDLOCK, WHICH MEANS THAT THE MOTHER IS NOT MARRIED AT THE TIME OF THE CONCEPTION AND BIRTH OF THE CHILD, OR IT WAS JUDICIALLY DETERMINED, BEFORE THE AFFIDAVIT WAS SIGNED, THAT THE CHILD IS NOT AN ISSUE OF THE MARRIAGE
Daniels v. Bowman, (Unpublished #280915), 9/23/08
A MICHIGAN TRIAL COURT’S WRONGFUL EXERCISE OF JURISDICTION UNDER THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) MAY BE SANCTIONED GIVEN THE PROTRACTED LITIGATION THAT INSUED SINCE THE COURT ORIGINALLY EXERCISED JURISDICTION BECAUSE TO ‘START OVER’ WOULD CREATE FURTHER DELAYS WHICH WOULD NOT BE IN THE CHILD’S OR PARTIES’ BEST INTERESTS.
Zirkle v. Franklin, (Unpublished #282826), 9/16/08
THE TRIAL COURT IS PRECLUDED FROM ENFORCING CUSTODY, PARENTING TIME AND DOMICILE PROVISIONS IN A JUDGMENT OF DIVORCE CONCERNING A CHILD WHERE A PRIOR ORDER OF FILIATION ESTABLISHED ANOTHER MAN AS THAT CHILD’S LEGAL FATHERTop of Page
Jones v. Giannotti, Unpublished #282447, 9/4/08
(1) ABSENT FRAUD, DURESS OR MUTUAL MISTAKE A SIGNED MEDIATION AGREEMENT IS ENFORCEABLE BETWEEN THE PARTIES TO A DIVORCE PROCEEDING. (2) THE COURT IS NOT OBLIGATED TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE THAT THE CUSTODIAL PLACEMENT WAS IN THE CHILD’S BEST INTEREST WHEN THE COURT IS OTHERWISE ABLE TO DETERMINE INDEPENDENTLY THAT THE CUSTODIAL PLACEMENT WAS IN THE CHILD’S BEST INTEREST
Chui v. Lam, Unpublished #284015, 9/4/08
AN UNAMBIGUOUS PROVISION OF A PARTIES’ DIVORCE SETTLEMENT AGREEMENT SHOULD BE ENFORCED ABSENT A VIOLATION OF PUBLIC POLICY
Johnson v. Johnson, (Unpublished #271129), 8/28/08
A RECIPROCAL ALIMONY PROVISION IN A JUDGMENT OF DIVORCE THAT EFFECTIVELY OFFSETS A NON CUSTODIAL PARENT’S OBLIGATION TO PAY CHILD SUPPORT VIOLATES PUBLIC POLICY AND MCL 552.605(2) AND IS UNENFORCEABLE
Laffin v. Laffin, ___Mich App___ (2008), #277187, 8/28/08
IN A CHALLENGE TO THE MCI DIRECTOR’S DECISION TO CONSENT TO AN ADOPTION UNDER MCL 710.45, IT IS THE ABSENCE OF ANY GOOD REASON TO WITHHOLD CONSENT, NOT THE PRESENCE OF GOOD REASONS TO GRANT IT, THAT INDICATES THAT THE SUPERINTENDENT WAS ACTING IN AN ARBITRARY AND CAPRICIOUS MANNER. THUS, A PARTY CHALLENGING THE SUPERINTENDENT’S DECISION MUST BE ALLOWED TO PRESENT ITS EVIDENCE BEFORE THE COURT RULES ON WHETHER THE WITHHOLDING CONSENT WAS ARBITRARY AND CAPRICIOUS OR NOT
In re: Greenwood, (Unpublished #277366), 8/26/08
ENFORCEMENT OF A CUSTODY DECREE FROM ANOTHER STATE IS NOT A CHILD CUSTODY DETERMINATION UNDER THE UCCJEA. A FAMILY MUST SHOW THAT THERE IS NO “HOME STATE” AS DEFINED BY MCL 722.1201(1)(a); OR A COURT OF THE “HOME STATE” HAS DECLINED JURISDICTION, IN ORDER TO ESTABLISH JURISDICTION THROUGH “SIGNIFICANT CONNECTIONS” AS CONTEMPLATED BY THE UCCJEA
Hasan M. Jamil v. Nusrat Jahan & Rachel Lynn Nash and Jeffrey Sean Salter v. Steve Salter and Karen Salter, ___ Mich App ___,(2008), #281062 & 282311, 8/7/08
A VALID PPO NEED NOT COMPLY WITH THE CHILD CUSTODY ACT, AND MAY ALTER CUSTODY OF A MINOR CHILD IN ORDER TO PROTECT THE MINOR FROM BOTH PHYSICAL AND EMOTIONAL DAMAGETop of Page
Hayford v. Hayford, ___ Mich App ___, (2008), #276176, 6/10/08
IN LIGHT OF LONG STANDING COMMON LAW REGARDING TENANCY BY THE ENTIRETIES PROPERTY, WHICH WAS CODIFIED WITH RESPECT TO JUDGMENT LIENS IN MCL 600.2807, AND THE PLAIN LANGUAGE OF MCL 552.625a and 552.625b, CHILD SUPPORT LIENS MAY NOT BE IMPOSED AGAINST PROPERTY HELD AS A TENANCY BY THE ENTIRETIES
People v. Leech, ___Mich App___(2008), #277180, 7/22/08
A TRIAL COURT’S HEARING ON OBJECTIONS RAISED TO A REFEREE’S RECOMMENDED ORDER WHICH INCLUDES THE OPPORTUNITY FOR EACH PARTY TO SUPPLEMENT THE REFEREE HEARING RECORD CONSTITUTES A PROPER DE NOVO REVIEW CONTEMPLATED BY MCR 3.215.
Barnett v. Climmer, (Unpublished, #283322), 7/17/08
THE TRIAL COURT PROPERLY TERMINATED A PUTATIVE FATHER UNDER MCL 710.39(1) GIVEN HE HAD NO CUSTODIAL RELATIONSHIP WITH THE CHILD & GIVEN HIS FAILURE TO PROVIDE SUBSTANTIAL & REGULAR SUPPORT FOR THE MOTHER OR CHILD IN ACCORDANCE WITH HIS ABILITY AND GIVEN THAT THE BEST INTEREST FACTORS DID NOT SUPPORT AN AWARD OF CUSTODY OF THE CHILD TO THIS INDIVIDUAL WHEN THE CHILD WAS ALREADY IN A PRE-ADOPTIVE HOME AND THE 57 YEAR OLD DISABLED PUTATIVE FATHER HAD NO FAMILY SUPPORT SYSTEM IN PLACE
In re: Joshua Douglas Gulick, (Unpublished, #281724), 7/17/08
GIVEN THE PROHIBITIONS OF MCL 600.2163a, NEITHER TESTIMONY BASED ON NOR VIDEO RECORDINGS OF CHILD PROTECTION INVESTIGATION INTERVIEWS MAY BE SUBPOENAED OR INTRODUCED IN A CHILD CUSTODY ACTION
Hakam v. Hakam, (Unpublished, #279931), 7/15/08
I. THE UNIFORM FRAUDULENT TRANSFER ACT (UFTA) APPLIES TO TRANSFERS OF PROPERTY IN A DIVORCE JUDGMENT. HOWEVER, IT DOES NOT APPLY TO TRANSFERS OF ENTIRTIES PROPERTY WHERE A CREDITOR HOLDS A CLAIM AGAINST ONLY ONE OF THE DIVORCING SPOUSES. II. A CREDITOR’S CLAIM UNDER UFTA BROUGHT IN A SEPARATE WRONGFUL DEATH ACTION DOES NOT COLLATERALLY ATTACK A DIVORCE JUDGMENT BECAUSE THE PLAINTIFF IN THE WRONGFUL DEATH ACTION COULD NOT SEEK TO INTERVENE IN THE DIVORCE ACTION AND COULD NOT SEEK TO VACATE THE DIVORCE JUDGMENT. UNDER UFTA, A CREDITOR CAN PURSUE SEPARATE RELIEF SEEKING TO SECURE THE TRANSFER OF A FRAUDULENTLY TRANSFERRED ASSET WHICH WAS ORCHESTRATED BY THE ACTIONS OF THE SPOUSES IN THE DIVORCE SETTLEMENT.
Estes v. Titus, ___Mich___(2008), #133098, 7/2/08
ABSENT CLEAR AND CONVINCING EVIDENCE SUPPORTING THE REVOCATION OF AN AFFIDAVIT OF PATERNITY PURSUANT TO MCL 722.1101(3), A CHILD’S BIOLOGICAL FATHER HAS NO RIGHTS TO PURSUE AN ACTION UNDER THE MICHIGAN PATERNITY ACT.Top of Page
Sinicropi v. Mazurek, ___Mich App ___(2008), #281726, 7/1/08
MCR 3.707(A)(2) REQUIRES THE COURT TO HOLD A HEARING ON A MOTION TO MODIFY OR TERMINATE A PPO. REGARDLESS OF WHETHER OR NOT THE CONTENT OF THE PPO INFRINGES A RIGHT TO FREE SPEECH, AN INDIVIDUAL MAY BE FOUND IN CONTEMPT OF COURT FOR VIOLATING SAID PPO.
Constance Conklin Peterson v. Larry Michael Peterson, (Unpublished, # 283188), 6/17/08
UNDER THE DOMESTIC RELATIONS ARBITRATION ACT, AN ARBITRATOR EXCEEDS THEIR AUTHORITY WHEN THEY DO NOT RECORD THE ARBITRATION PROCEEDINGS.
Christa Kirby v. Brian Vance, ___Mich___(2008), #136050, 6/11/08
A POSTNUPTIAL AGREEMENT THAT ENCOURAGES OR ANTICIPATES FUTURE SEPARATION IS UNENFORCEABLE. A POSTNUPTIAL AGREEMENT THAT HAS A PRIMARY GOAL OF TOTALLY DIVESTING ONE PARTY OF ALL MARITAL ASSETS IN THE EVENT OF A DIVORCE, EVEN IF THE PARTIES HAVE NOT PREVIOUSLY SEPARATED, ENCOURAGES OR ANTICIPATES DIVORCE.
Charles Wright v. Monica Marie Wright, ___Mich App___(2008), #281918, 6/3/08
AS LONG AS MINIMUM PROTECTIONS OF DUE PROCESS ARE AFFORDED THE PARTY, THE RELIEF FROM JUDGMENT COURT RULE – MCR 2.612 – MAY NOT BE USED TO SET ASIDE OR ABATE ACCRUED CHILD SUPPORT.
Erika Malone v. Roy Malone, (Unpublished, #272327), 6/3/08
IN CONSIDERING A CHANGE OF A CHILD’S DOMICILE AFTER DIVORCE, A COURT MUST CONSIDER THE D’ONOFRIO FACTORS AS CODIFIED BY MCL 722.31(4).
Krystal Perreault v. David Sullivan, Jr., (Unpublished, #281727), 6/3/08
N A STEPPARENT ADOPTION, WHEN SEEKING TO TERMINATE THE PARENTAL RIGHTS OF THE NON CUSTODIAL PARENT UNDER MCL 710.51(6), A TRIAL COURT MAY NOT INQUIRE INTO A RESPONDENT’S ABILITY TO PAY SUPPORT WHEN THERE IS A SUPPORT ORDER IN PLACE.Top of Page
In the matter of James Loos III, Minor, (Unpublished, #283463), 5/22/08
A PROPERLY FILED AND NOTICED (BUT UNDECIDED) MOTION TO REDUCE CHILD SUPPORT PRESERVES THE RIGHT TO MODIFY SUPPORT AND REDUCE ARREARS ACCUMULATED BETWEEN THE TIME OF FILING THE MOTION AND THE DECISION ON THAT MOTION IRRESPECTIVE OF THE INTERVENING ENACTMENT OF MCL 552.603(2) PRECLUDING RETROACTIVE MODIFICATION OF ARREARS
Armstrong v. Riemersma, (Unpublished, #277599), 5/8/08
“SUBSTANTIAL COMPLIANCE” UNDER MCL 710.51(6) HAS OCCURRED IF THE PARENT HAS ESTABLISHED “A REGULAR AND BONA FIDE PATTERN OF PAYMENT OVER THE REQUISITE PERIOD".
Jennifer Johnson and Chad Johnson v. Michael Robert Benbow II, Unpublished Opinion #281194, 4/17/08
IN ORDER TO BE A “CHANGE IN CIRCUMSTANCE” THAT WOULD WARRANT RECONSIDERATION OF AN EXISTING CUSTODY ORDER, THE EVIDENCE MUST DEMONSTRATE SOMETHING MORE THAN NORMAL LIFE CHANGES. THEY MUST BE MATERIAL CHANGES THAT HAVE HAD, OR WILL ALMOST CERTAINLY HAVE AN EFFECT ON THE CHILD. ALSO, IF THE PARTIES ARE NOT AWARE OF A FACT, OR HAVE INSUFFICIENT UNDERSTANDING OF THE FACT, PRIOR TO THE CUSTODY ORDER, THEY MAY LATER RELY UPON THAT FACT TO SUPPORT A CLAIM FOR A “CHANGE IN CIRCUMSTANCES”.Top of Page
Susan Marie Terrell v. Steven Paul Holt, Unpublished Opinion #281329, 4/1/08
WHEN DECIDING WHETHER AN INCARCERATED LITIGANT SHOULD BE ALLOWED TO PERSONALLY ATTEND A DIVORCE PROCEEDING, THE COURT SHOULD CONSIDER WHETHER THE PRISONER’S PRESENCE WILL SUBSTANTIALLY FURTHER THE RESOLUTION OF THE CASE; THE SECURITY ISSUES INVOLVED; THE COST AND EXPENSE OF TRANSPORTING AND SAFEKEEPING OF THE PRISONER; AS WELL AS, WHETHER OR NOT THE SUIT COULD BE STAYED UNTIL THE PRISONER IS RELEASED WITHOUT PREJUDICE TO THE MATTER ASSERTED
Chrysula Patricia Renusch v. Ray B. Renusch, Unpublished Opinion No. 275669, 4/10/08
MCR 2.612(A)(1) IS INTENDED TO MAKE THE LOWER COURT RECORD AND JUDGMENT ACCURATELY REFLECT WHAT WAS DECIDED AT THE TRIAL COURT LEVEL, AND CLERICAL MISTAKES – AND ERRORS OF OVERSIGHT AND OMISSION - IN JUDGMENTS ORDERS, OR OTHER PARTS OF THE RECORD MAY BE CORRECTED BY THE COURT AT ANYTIME, BY ITS OWN INITIATIVE, BY MOTION OF A PARTY, AND AFTER NOTICE, IF THE COURT ORDERS IT
David E. Daiek v. Lisa J. Daiek, Unpublished Opinion # 275569, 4/8/08
A MODIFICATION OF PARENTING TIME, WHICH AMOUNTS TO A CHANGE IN AN ESTABLISHED CUSTODIAL ENVIRONMENT, MUST BE SHOWN, BY CLEAR AND CONVINCING EVIDENCE, TO BE IN THE CHILD’S BEST INTEREST. THE PARTY PROPOSING THE MODIFICATION THAT WOULD DISRUPT THE CUSTODIAL ENVIRONMENT BEARS THE BURDEN OF PROVING THAT THE MODIFICATION IS IN THE CHILD’S BEST INTEREST
Christina Lyn Powery, f/k/a Christina Lyn Wells v. John Braden Wells, ___ Mich App ___ (2008), # 276468, 4/3/08
UNDER MCL 710.45, THE TRIAL COURT’S REVIEW OF THE MCI SUPERINTENDENT’S DECISION TO WITHHOLD CONSENT TO ADOPT A STATE WARD IS LIMITED TO DETERMINING WHETHER CLEAR AND CONVINCING EVIDENCE ESTABLISHED THE DENIAL OF CONSENT WAS ARBITRARY AND CAPRICIOUS. FURTHERMORE, A SECTION 45 HEARING IS NOT A VENUE FOR A PETITIONER TO MAKE A CASE FOR CONSENT, BUT FOR THE PETITIONER TO SHOW THAT THE SUPERINTENDENT ACTED ARBITRARILY AND CAPRICIOUSLYTop of Page
In re Alyssa Ann Keast and Amber Nicole Keast, Minors, ___ Mich App ___, (2008), #279820, 4/1/08
IN DIVORCE PROCEEDINGS, THE TRIAL COURT DOES NOT HAVE THE RIGHT TO ADJUDICATE THE RIGHTS OF A THIRD PARTY ABSENT ALLEGATIONS OF FRAUD. THEREFORE, A COURT ORDERED DISBURSMENT OF CONTESTED FUNDS TO ONE PARTY’S ATTORNEY, FOR THE PURPOSE OF PAYMENT OF FEES, IS FOR THE BENEFIT OF THAT PARTY, AND THE ATTORNEY WILL NOT BE JOINTLY LIABLE FOR THOSE FUNDS, IF LATER, THE PARTY HAS TO REPAY THAT AMOUNT TO THE RIGHTFUL OWNER
Kasben v. Hoffman and Bergstrom, PLC, ___ Mich App ___ (2008), #272999, 4/1/08
IN MAKING A RECOMMENDATION IN A CHILD CUSTODY DECISION, THE REFEREE MUST CONSIDER THE BEST INTEREST FACTORS IN MCL 722.23 AND THE TRIAL JUDGE IN ACCEPTING THE REFEREE’S RECOMMENDATION MUST SATISFY HIMSELF THAT THOSE BEST INTEREST FACTORS WERE CONSIDERED
Rivette v. Rose-Molina, ___Mich App___ (2008), #280922, 3/27/08
WHEN DECIDING WHETHER IT IS IN A CHILD’S BEST INTEREST TO CHANGE HIS LEGAL RESIDENCE BY MORE THAN 100 MILES UNDER MCL 722.31, “MILES” MEANS “RADIAL (THE DISTANCE BETWEEN 2 POINTS ON A MAP) MILES” AS OPPOSED TO “ROAD (THE DISTANCE AS MEASURED ALONG AN AVAILABLE ROUTE OF TRAVEL) MILES”
Bowers v. VanderMeulen-Bowers, ___Mich App___ (2008), #274377, 3/25/08
THE DETERMINATION OF WHETHER OR NOT A WIFE IS DISQUALIFIED FROM CONTINUING TO RECEIVE SPOUSAL SUPPORT BECAUSE SHE IS ‘COHABITING WITH AN UNRELATED MALE’ IS A QUESTION OF FACT BASED ON THE TOTALITY OF THE CIRCUMSTANCES INCLUDING CONSIDERATIONS OF THE PARTIES’ LIVING ARRANGEMENTS, THEIR PERSONAL RELATIONSHIP AND THEIR FINANCIAL DEALINGS.
Smith v. Jenkins, ___Mich App___ (2008), #273545, 3/18/08
THE MICHIGAN CHILDREN’S INSTITUTE SUPERINTENDENT’S DECISION TO DENY CONSENT TO A BLOOD RELATIVE’S ADOPTION PETITION IS NOT ‘ARBITRARY AND CAPRICIOUS’ IF THERE ARE GOOD REASONS TO GRANT CONSENT AND GOOD REASONS TO DENY CONSENT TO THE RELATIVE’S PETITION. IT IS THE ABSENCE OF ANY GOOD REASON TO WITHHOLD CONSENT, NOT THE PRESENCE OF GOOD REASONS TO GRANT IT, THAT INDICATES THE SUPERINTENDENT WAS ACTING IN AN ‘ARBITRARY AND CAPRICIOUS’ MANNERTop of Page
In re Fenner-Bailey, (Unpublished #279990), 3/13/08
WHEN THE PARTIES ARE GIVEN A FULL OPPORTUNITY TO PRESENT AND PRESERVE EVIDENCE, AND THERE ARE NO CONTESTED ISSUES OF FACT, THE TRIAL COURT MAY CONDUCT A DE NOVO HEARING BASED SOLELY ON THE RECORD OF A PREVIOUS HEARING. A PARTIES’ RIGHT TO PRESENT LIVE EVIDENCE AT A DE NOVO HEARING IS NOT ABSOLUTE AND THE TRIAL COURT HAS THE DISCRETION TO LIMIT OR EXCLUDE LIVE EVIDENCE. THE TRIAL COURT MAY ADDRESS ONLY THOSE BEST INTEREST FACTORS THAT ARE AT ISSUE IN A DE NOVO HEARING.
Marilyn Rose Luther v. John Eric Wik, Unpublished Opinion #271587, 2/19/08
AS A COURT OF EQUITY, A TRIAL COURT MAY APPLY THE DOCTRINE OF “UNCLEAN HANDS” TO PROPERTY DIVISION IN A DIVORCE ACTION. IN ADDITION, SIGNIFICANT DEPARTURES FROM CONGRUENCY ARE ALLOWED AS LONG AS THE TRIAL COURT CLEARLY EXPLAINS THE DEPARTURE.
Paul David Jackson v Traci Beth Jackson, Unpublished Opinion #271917, 2/19/08
UNDER MCL 710.45, THE TRIAL COURT’S REVIEW OF THE MCI SUPERINTENDENT’S DECISION TO WITHHOLD CONSENT TO ADOPT A STATE WARD IS LIMITED TO DETERMINING WHETHER CLEAR AND CONVINCING EVIDENCE ESTABLISHED THE DENIAL OF CONSENT WAS ARBITRARY AND CAPRICIOUS. FURTHERMORE, A SECTION 45 HEARING IS NOT A VENUE FOR A PETITIONER TO MAKE A CASE FOR CONSENT, BUT FOR THE PETITIONER TO SHOW THAT THE SUPERINTENDENT ACTED ARBITRARILY AND CAPRICIOUSLY.Top of Page
In re Alyssa Ann Keast and Amber Nicole Keast, Minors, Unpublished Opinion #279820, 2/5/08
IN ORDER FOR A PERSON TO MEET THE TEN DAY RESIDENCY REQUIREMENT OF MCL 552.9(1) AN UNINTERRUPTED PHYSICAL PRESENCE IS NOT NECESSARY. IF A PERSON HAS ESTABLISHED A RESIDENCE AND INTENDS TO RESIDES THERE, TEMPORARY ABSENCES DO NOT DESTROY THE RESIDENCY. A JUDGE’S ROLE IN DIVIDING MARITAL PROPERTY IS TO ARRIVE AT AN EQUITABLE DIVISION OF ASSETS, NOT TO PUNISH ONE OF THE PARTIES.
Kristen Berger v. Derek Thomas Berger, ___Mich App___ (2008), #279025, 1/31/08
TERMINATION OF A NON-CUSTODIAL PARENT’S RIGHTS CANNOT OCCUR UNDER MCL 710.51(6) IF AN EXISTING SUPPORT ORDER (INCLUDING ONE THAT SETS SUPPORT AT ZERO) IS SUBSTANTIALLY COMPLIED WITH BY THE PAYOR PARENT. HOWEVER, IF THE ORDER RESERVES ON CHILD SUPPORT THE COURT HEARING THE PETITION TO TERMINATE MAY INQUIRE INTO THE NON-CUSTODIAL PARENT’S ABILITY TO PAY IN ASSESSING WHETHER TERMINATION IS APPROPRIATE UNDER MCL 710.51(6) BASED ON THE PAYOR PARENT’S FAILING TO PROVIDE REGULAR AND SUBSTANTIAL SUPPORT FOR THE CHILD WHEN ABLE TO DO SO.
Van Rijn v. Mullins, (Unpublished, #279660), 1/15/08
A COURT LACKS AUTHORITY IN DIVORCE CASES TO COMPEL A THIRD PARTY TO CONVEY PROPERTY INTERESTS TO ANOTHER (EVEN THE CHILD OF THAT THIRD PARTY WHO IS A PARTY TO THE DIVORCE ACTION) OR TO ADJUDICATE CLAIMS OF THOSE THIRD PARTIES
Adjlouny v. Swygert, (Unpublished, #275591), 1/15/08
A QUALIFIED DOMESTIC RELATIONS ORDER ENTERED CONCURRENTLY WITH A JUDGMENT OF DIVORCE ARE TO READ TOGETHER AS A COMPREHENSIVE DIVISION OF THE MARITAL ESTATE. AS SUCH, THE COURT IS WITHOUT AUTHORITY TO RETROACTIVELY MODIFY SUCH A PROPERTY SETTLEMENT ABSENT FRAUD, DURESS OR MUTUAL MISTAKE.
Thorton v. Thorton, ___ Mich App ___ (2008), # 270931, 1/3/08
IN DETERMINING WHETHER TO TERMINATE THE RIGHTS OF A PUTATIVE FATHER WHO HAS NO CUSTODIAL RELATIONSHIP WITH HIS CHILD AND WHO HAS NOT PROVIDED SUBSTANTIAL AND REGULAR SUPPORT FOR THE MOTHER OR CHILD, THE COURT SHOULD CONSIDER THE ADOPTION CODE’S “BEST INTEREST” FACTORS UNDER MCL 710.22(g). IF SUCH A PUTATIVE FATHER’S RIGHTS ARE NOT TERMINATED BASED ON THAT ANALYSIS, THE COURT IS FREE TO AWARD TEMPORARY PHYSICAL CUSTODY OF THE CHILD TO THE PUTATIVE FATHER SUBJECT TO A FURTHER ANALYSIS COMPARING THE MOTHER’S AND FATHER’S MUTUAL REQUEST FOR PHYSICAL CUSTODY USING THE “BEST INTEREST” FACTORS FOUND IN THE CHILD CUSTODY ACT AT MCL 722.23.Top of Page
In re: Steven Zimmerman, ___Mich App___ (2008), #279696, 1/3/08ONCE A PETITIONER HAS MET THE BURDEN OF PROOF OF HABITUAL RESIDENCE REQUIRING RETURN OF A CHILD TO ANOTHER COUNTRY PURSUANT TO THE HAGUE CONVENTION, THE BURDEN OF PROOF SHIFTS TO THE RESPONDENT TO PROVE ONE OR MORE OF THE EXCEPTIONS. TO PROVE THAT THE PETITIONER CONSENTED TO THE REMOVAL OR TO PROVE THAT A CHILD OF PROPER AGE AND DEGREE OF MATURITY OBJECTS TO BEING RETURNED, THE BURDEN IS A PREPONDERANCE OF THE EVIDENCE. TO PROVE THERE IS A GRAVE RISK THAT THE RETURN WOULD EXPOSE THE CHILD TO PHYSICAL OR PSYCHOLOGICAL HARM OR OTHERWISE PLACE THE CHILD IN AN INTOLERABLE SITUATION, THE BURDEN IS CLEAR AND CONVINCING EVIDENCE. IF THE COURT FINDS A GRAVE RISK, THE COURT THEN HAS THE DISCRETION TO REFUSE TO ORDER RETURN. THE COURT MAY ORDER THE RETURN OF THE CHILD AND ESTABLISH UNDERTAKINGS TO PROTECT THE CHILD WHILE A CUSTODY DETERMINATION IS MADE BY THE COURT IN THE CHILD’S HOMELAND BUT THE UNDERTAKINGS MUST BE WORKABLE AND ENFORCEABLE.
Simcox v. Simcon, ___F3d___, (6th Cir. 2007), 12/28/07
A TRIAL COURT MAY AWARD A PARTY ATTORNEY FEES IF THE FEES WERE INCURRED BECAUSE THE OTHER PARTY REFUSED TO COMPLY WITH THE PREVIOUS COURT ORDER, OR A TRIAL COURT MAY AWARD ATTORNEY FEES IF THE REQUESTING PARTY WAS FORCED TO INCUR THE FEES BECAUSE OF THE OTHER PARTY’S UNREASONABLE CONDUCT
James A. Holmes v Karen M. Roman-Holmes, a/k/a Karen M. Burchfield, Unpublished Opinion #271936, 12/18/07
IN A THIRD PARTY CUSTODY DISPUTE WITH A PARENT AND AN AGENCY OR THIRD PARTY, THE COURT SHALL PRESUME THAT THE BEST INTERESTS OF THE CHILD ARE SERVED BY AWARDING CUSTODY TO THE PARENT OR PARENTS, UNLESS THE CONTRARY IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE; HOWEVER, THIS PARENTAL PRESUMPTION DOES NOT NEGATE THE REQUIREMENT OF THE PARENT TO SHOW PROPER CAUSE OR CHANGE OF CIRCUMSTANCES ON THE PARENT’S REQUEST FOR A CHANGE OF CUSTODY
Joseph Yount v Diana Yount, Unpublished Opinion, #28890, 12/11/07
THE COURT HAS DISCRETION TO DETERMINE WHETHER A CHILD MAY TESTIFY IN OPEN COURT ON SUCH ISSUES AS ABUSE OR MALTREATMENT IF QUALIFIED UNDER MRE 601 IN DOMESTIC CASES. THE SUBJECT MATTER OF AN IN CAMERA REVIEW IS STRICTLY LIMITED TO THE ISSUE OF PARENTAL PREFERENCE. IN DETERMINING WHETHER THE WITNESSES QUALIFIED AS AN EXPERT, THE TRIAL COURT SHOULD NOT WEIGH THE PROFFERED WITNESS’S CREDIBILITY. ARGUED GAPS OR WEAKNESSES IN THE WITNESS’S EXPERTISE ARE SUBJECT FOR CROSS AND GO TO THE WEIGHT, NOT ADMISSIBILITY OF THE EXPERT TESTIMONY
Joseph S. Surman v Jane Ann Surman, ___Mich App___(2007), #276615, 12/4/07
ALTHOUGH THE MEDIATED AGREEMENT WAS NOT SIGNED BY THE PARTIES AS REQUIRED BY MCR 3.216(H)(7), ABSENT A SHOWING OF PREJUDICE, THE NON-COMPLIANCE OF NOT HAVING THE PARTIES SIGN THE AGREEMENT WAS HARMLESS ERROR
Tina B. Meinke v Bruce J. Meinke, Unpublished Opinion, #277033, 11/29/07
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