BANKRUPTCY LAW is Federal with some state exception variations. If you do not get it right when you file you could lose everything. Bankruptcy Lawyer Terry Bankert guides you awa from complications that can occur with sloppy pleadings. Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com
Sunday, March 27, 2011
Tuesday, March 22, 2011
IN DIVORCE THIS ADAM LOST TO EVE, WIFE GETS MORE PROPERTY.by FLINT DIVORCE ATTORNEY TERRY BANKERT
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SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),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/
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/
Saturday, March 12, 2011
FLINT BANKRUPTCY STEPS
Its no joke being broke and bankruptcy is a way to a fresh economic start. A Flint Bankruptcy Lawyer can help you.After you make the decision to file a Bankruptcy Case —Here are the next steps
- Once a bankruptcy case is filed, the Bankruptcy Court and the Bankruptcy Code impose a number of deadlines
- Section 341 meeting of creditors—this meeting is held approximately 45 days after the bankruptcy case is filed. At this meeting, the debtor is placed under oath, and the Trustee (if the case is a Chapter 7 or a Chapter 13) or the United States Trustee (f the case is a Chapter 11) asks the debtor questions about its schedules, statement of financial affairs, and any documents requested by the Trustee ahead of time. Typically, debtors are required to provide the Trustee with bank statements, pay stubs, real estate documents and, if requested, credit card statements.
- Creditors typically have 90 days after the date of the 341 meeting to file claims against the debtor (in Chapter 11 cases, especially if they are large, the debtor often requests a longer period of time)
- Creditors have 30 days after the date of the 341 meeting to object to an individual debtor’s exemptions.
- Creditors have 60 days after the date of the 341 meeting to object to the discharge of a particular debt or to object to the debtor’s discharge (in a Chapter 7)
- In a Chapter 11 case, a debtor has 120 days after the case is filed to file its proposed disclosure statement and plan of reorganization. If the Chapter 11 debtor does not extend this deadline and fails to file a plan, then the debtor’s exclusive right to propose a plan terminates and any creditor may then file a proposed plan and disclosure statement
- In a Chapter 7 case, after the 341 meeting, the Trustee typically investigates the debtor to determine if there are any undisclosed assets or any non-exempt assets to administer. If there are, the Chapter 7 Trustee typically begins any sales during this time. If there are not, the Chapter 7 Trustee files a “no asset report”.
- In a Chapter 13 case, the Chapter 13 plan is filed with or shortly after the petition. The Chapter 13 Trustee and creditors use this next period to evaluate the plan and determine whether to object to it. If no objections are filed, or if all of them are resolved, the case is “fast tracked”, the confirmation order is entered without a hearing, and the debtor begins making payments into the plan. If there are unresolved confirmation objections, then a confirmation hearing is held and the Bankruptcy Judge determines whether the plan meets the requirements of the Bankruptcy Code and can be confirmed or whether it does not.
- In a Chapter 11 case, depending on its size, the time after filing can be quite frenetic. The debtor often files a number of “first day” motions, which ask for various types of relief (for example, the ability to pay certain “critical” vendors, the ability to pay employees, the ability to stop utilities from shutting off service and the like). These motions are often heard approximately 20 days after the case is filed. In addition, the Chapter 11 debtor uses this time to evaluate whether it should assume or reject various leases and contracts, and to prepare financials and a business plan that will support the filing of a plan of reorganization. If the debtor intends to use the Chapter 11 to sell its assets and liquidate, the debtor often files a motion for approval of the sale of its assets during this time.
Sunday, November 14, 2010
WHAT IS SEPARATE PROPERTY IN A DIVORCE?
DID YOU KNOW the definition of Separate Property?
DIVORCE LAW IS FILLED WITH WORD OF CLOUDY MEANING.
Words like “marital property” lack statutory definition, so does “separate property”. A question your divorce attorney will have to ask is when does a valuable asset become characterized as separate property, as well as the starting point when identifying property per Reeves. An easy definition is that separate property is the flip side to marital property, and is generally not subject to division between the parties.
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
So when do we havs Satutory Authority to Invade or take Separate Property
The two statutory exceptions are a §401 “contribution” claim, and a §23 “insufficiency” claim (MCL 552.401 and MCL 552.23).
These two statutory exceptions are set forth below.
The first exception, a §401 “contribution” claim, is:
The circuit court of this state may include in any decree of divorce or of separate maintenance entered in the circuit court appropriate provisions awarding to a party all or a portion of the property, either real or personal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case, if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property. The decree, upon becoming final, shall have the same force and effect as a quitclaim deed of the real estate, if any, or a bill of sale of the personal property, if any, given by the party’s spouse to the party.
The second exception, a §23 “insufficiency” claim, is:
Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.
Reeves implicitly overruled an earlier line of cases which held that separate property was simply another factor to consider when fairly dividing the entire estate. Because of Reeves and its progeny, general principles of equity do not constitute a sufficient reason for the invasion of separate property under either statutory exception. See, for example, Schneider v Schneider, unpublished opinion per curiam of the Court of Appeals, issued October 28, 2003 (Docket No. 245578) slip op pp 2–3.
C. Burden of Proof
There are no reported cases that expressly define which party bears the burden of proof in a separate property claim. However, it appears from the cases that the owner-spouse must prove a separate property claim in order to keep the property separate, and the nonowner-spouse must prove a statutory exception on order to justify invading the separate property.
These separate property claim frequently occurs in second marriages involves the ownership of a home by one of the spouses at the time of the marriage. In that case, establish both the fair market value of the home (and, therefore, the equity of the owner-spouse) at the time of the marriage, as well as the current fair market value of the home. All qualified real estate appraisers have access to historical records to adequately prepare an appraisal report for the value of a home even decades in the past.
Here are some examples of Separate Property
A. Premarital Property
Premarital property, that is, property a party owned before the marriage, is separate property. Reeves, Lee, and Korth v Korth, 256 Mich App 286; 662 NW2d 111 (2003).
B. Property Acquired During Cohabitation
Property acquired during cohabitation is separate property. Reeves. The footnote, which in one fell swoop created critical law in this area, is worth reproducing in these materials:
Rather than focusing on the four years the parties had been married, the court said it was equitably considering the parties to have been married for eight years. This was error. Michigan does not recognize common-law marriages. Carnes v Sheldon, 109 Mich App 204, 211, 216–217; 311 NW2d 747 (1981). Cohabitating with someone is not the same as marrying them. Further, Bone, supra, required the court to look at the period that began with the marriage. A court is not free to expand this period to include any cohabitation that may have occurred before the parties marry. Reeves at 493 n 1.[10][Emphasis supplied.]
What Reeves is to property, Korth is to spousal support. The Korth court’s rationale was stated as follows:
Although the past relations and conduct of the parties is one factor the trial court may consider in determining whether to award spousal support, Michigan has a strong public policy supporting the institution of marriage…. This policy was undermined by the trial court’s holding in the present case. The trial court was required to limit its consideration to “the length of the marriage,” not the length of the relationship, in awarding spousal support.
C.Inherited Property
Inherited property is, at least where it has been kept separate from marital property, is generally treated as separate property. Lee, Dart, and Wells v Wells, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2007 (Docket No. 271465) (parent’s conveyance to son of family farm deemed “pre-inheritance transfer”, thus separate asset).
D. Gifted Property
Gifted property, at least that which is intended for the donee-spouse only, has traditionally been considered separate property. Brookhouse v Brookhouse, 286 Mich 151; 281 NW2d 573 (1938); Hackert v Hackert, unpublished opinion per curiam of the Court of Appeals, issued May 5, 1995 (Docket No. 153308) (jewelry and part of a doll collection given to W by H during the course of the marriage were items of personal use or adornment, and therefore separate property of the recipient spouse); and Francis v Francis, unpublished opinion per curiam of the Court of Appeals, issued June 13, 1995 (Docket No. 150780) (H’s gift to W of a diamond engagement ring was W’s separate property). But, see Hance v Hance, unpublished opinion per curiam of the Court of Appeals, issued August 21, 1998 (Docket No. 200684) (interspousal gifts of jewelry deemed marital property).
E. Damages for Pain and Suffering
Pain and suffering awards in the context of personal injury cases are separate property (as opposed to economic losses covering the time of the marriage). Bywater v Bywater, 128 Mich App 396, 398; 340 NW2d 102 (1983); Lee at 79; and Stoudemire v Stoudemire, 248 Mich App 325, 339; 639 NW2d 274 (2001). But, see Pickering v Pickering, 268 Mich App 1; 706 NW2d 835 (2005) (lawsuit proceeds deemed marital asset where both H and W were plaintiffs [H injured riding bicycle; W loss of consortium], joint check issued and deposited to joint account, and parties treated the settlement proceeds as a joint marital asset).
F. Pre/Postmarital Retirement Benefits
Although presumptively separate property, premarital pension benefits may be treated as part of the marital estate, per Booth v Booth, 194 Mich App 284, 291; 486 NW2d 116 (1992), and pension contributions made post-divorce are assets which may be considered part of the marital estate, per Boonstra v Boonstra, 209 Mich App 558, 563; 531 NW2d 777 (1995).
A thorny question arises when a portion of a defined contribution plan, such as a 401k, was accrued prior to the marriage, but investments in the plan continued during the marriage. It is easy to identify the account balance at the time of marriage and return that to the contributing spouse as his/her separate property upon divorce. But does that, without more, shortchange the contributing spouse by denying him/her the benefit of earnings during the marriage on those premarital contributions? With sufficient economic data or testimony, it should be possible to segregate earnings on premarital contributions (which in theory are separate property) from earnings of contributions made from income during the marriage (which is clearly marital property). Yet this approach was rejected recently by the Court of Appeals in the unpublished of Skinner v Skinner, Court of Appeals No. 289740, decided 5/18/10.[11]
Drafting Tip: The language used in Booth and Boonstra to describe the process of awarding a portion of separate property to the nonowner-spouse, “treated/considered”, is not technically correct. Frankly, sloppy use of language creates confusion. Purists, like James P. Ryan, Esq., of Plymouth, point out that the proper language is, instead, “invaded/divided”.
G. Why It Matters - Invasion of Separate Property
Notwithstanding a characterization of an asset as “separate”, the tenacious and creative practitioner will find case law on both sides of most of these issues. Other legal concepts like “commingling” may destroy the separate nature of an otherwise separate asset, and thereby permit the court to treat the asset as marital property.
The cases are obviously fact-intensive, and much depends on the development of the proofs. The key is to understand that a marital asset is subject to division using the equitable factors found in Sparks, while a separate asset may only be divided if either of the statutory exceptions is met.
A. Motion for Partial Summary Disposition pursuant to MCR 2.116 when dealing with separate property claims, particularly when a §23 “insufficiency” claim is not asserted. You educate the court on your claim (either that the asset is separate or marital), and a ruling either way should greatly assist in resolving the case.
Defining the marital estate is not easy. Neither is defining what “marital” and “separate” property are. Ultimately, it is a matter of advocacy, that is, persuading the fact-finder based on knowledge of the law and what makes common sense in a particular fact-pattern. The intent of these materials is to make you a better advocate
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
DIVORCE LAW IS FILLED WITH WORD OF CLOUDY MEANING.
Words like “marital property” lack statutory definition, so does “separate property”. A question your divorce attorney will have to ask is when does a valuable asset become characterized as separate property, as well as the starting point when identifying property per Reeves. An easy definition is that separate property is the flip side to marital property, and is generally not subject to division between the parties.
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
So when do we havs Satutory Authority to Invade or take Separate Property
The two statutory exceptions are a §401 “contribution” claim, and a §23 “insufficiency” claim (MCL 552.401 and MCL 552.23).
These two statutory exceptions are set forth below.
The first exception, a §401 “contribution” claim, is:
The circuit court of this state may include in any decree of divorce or of separate maintenance entered in the circuit court appropriate provisions awarding to a party all or a portion of the property, either real or personal, owned by his or her spouse, as appears to the court to be equitable under all the circumstances of the case, if it appears from the evidence in the case that the party contributed to the acquisition, improvement, or accumulation of the property. The decree, upon becoming final, shall have the same force and effect as a quitclaim deed of the real estate, if any, or a bill of sale of the personal property, if any, given by the party’s spouse to the party.
The second exception, a §23 “insufficiency” claim, is:
Upon entry of a judgment of divorce or separate maintenance, if the estate and effects awarded to either party are insufficient for the suitable support and maintenance of either party and any children of the marriage as are committed to the care and custody of either party, the court may further award to either party the part of the real and personal estate of either party and spousal support out of the real and personal estate, to be paid to either party in gross or otherwise as the court considers just and reasonable, after considering the ability of either party to pay and the character and situation of the parties, and all the other circumstances of the case.
Reeves implicitly overruled an earlier line of cases which held that separate property was simply another factor to consider when fairly dividing the entire estate. Because of Reeves and its progeny, general principles of equity do not constitute a sufficient reason for the invasion of separate property under either statutory exception. See, for example, Schneider v Schneider, unpublished opinion per curiam of the Court of Appeals, issued October 28, 2003 (Docket No. 245578) slip op pp 2–3.
C. Burden of Proof
There are no reported cases that expressly define which party bears the burden of proof in a separate property claim. However, it appears from the cases that the owner-spouse must prove a separate property claim in order to keep the property separate, and the nonowner-spouse must prove a statutory exception on order to justify invading the separate property.
These separate property claim frequently occurs in second marriages involves the ownership of a home by one of the spouses at the time of the marriage. In that case, establish both the fair market value of the home (and, therefore, the equity of the owner-spouse) at the time of the marriage, as well as the current fair market value of the home. All qualified real estate appraisers have access to historical records to adequately prepare an appraisal report for the value of a home even decades in the past.
Here are some examples of Separate Property
A. Premarital Property
Premarital property, that is, property a party owned before the marriage, is separate property. Reeves, Lee, and Korth v Korth, 256 Mich App 286; 662 NW2d 111 (2003).
B. Property Acquired During Cohabitation
Property acquired during cohabitation is separate property. Reeves. The footnote, which in one fell swoop created critical law in this area, is worth reproducing in these materials:
Rather than focusing on the four years the parties had been married, the court said it was equitably considering the parties to have been married for eight years. This was error. Michigan does not recognize common-law marriages. Carnes v Sheldon, 109 Mich App 204, 211, 216–217; 311 NW2d 747 (1981). Cohabitating with someone is not the same as marrying them. Further, Bone, supra, required the court to look at the period that began with the marriage. A court is not free to expand this period to include any cohabitation that may have occurred before the parties marry. Reeves at 493 n 1.[10][Emphasis supplied.]
What Reeves is to property, Korth is to spousal support. The Korth court’s rationale was stated as follows:
Although the past relations and conduct of the parties is one factor the trial court may consider in determining whether to award spousal support, Michigan has a strong public policy supporting the institution of marriage…. This policy was undermined by the trial court’s holding in the present case. The trial court was required to limit its consideration to “the length of the marriage,” not the length of the relationship, in awarding spousal support.
C.Inherited Property
Inherited property is, at least where it has been kept separate from marital property, is generally treated as separate property. Lee, Dart, and Wells v Wells, unpublished opinion per curiam of the Court of Appeals, issued November 20, 2007 (Docket No. 271465) (parent’s conveyance to son of family farm deemed “pre-inheritance transfer”, thus separate asset).
D. Gifted Property
Gifted property, at least that which is intended for the donee-spouse only, has traditionally been considered separate property. Brookhouse v Brookhouse, 286 Mich 151; 281 NW2d 573 (1938); Hackert v Hackert, unpublished opinion per curiam of the Court of Appeals, issued May 5, 1995 (Docket No. 153308) (jewelry and part of a doll collection given to W by H during the course of the marriage were items of personal use or adornment, and therefore separate property of the recipient spouse); and Francis v Francis, unpublished opinion per curiam of the Court of Appeals, issued June 13, 1995 (Docket No. 150780) (H’s gift to W of a diamond engagement ring was W’s separate property). But, see Hance v Hance, unpublished opinion per curiam of the Court of Appeals, issued August 21, 1998 (Docket No. 200684) (interspousal gifts of jewelry deemed marital property).
E. Damages for Pain and Suffering
Pain and suffering awards in the context of personal injury cases are separate property (as opposed to economic losses covering the time of the marriage). Bywater v Bywater, 128 Mich App 396, 398; 340 NW2d 102 (1983); Lee at 79; and Stoudemire v Stoudemire, 248 Mich App 325, 339; 639 NW2d 274 (2001). But, see Pickering v Pickering, 268 Mich App 1; 706 NW2d 835 (2005) (lawsuit proceeds deemed marital asset where both H and W were plaintiffs [H injured riding bicycle; W loss of consortium], joint check issued and deposited to joint account, and parties treated the settlement proceeds as a joint marital asset).
F. Pre/Postmarital Retirement Benefits
Although presumptively separate property, premarital pension benefits may be treated as part of the marital estate, per Booth v Booth, 194 Mich App 284, 291; 486 NW2d 116 (1992), and pension contributions made post-divorce are assets which may be considered part of the marital estate, per Boonstra v Boonstra, 209 Mich App 558, 563; 531 NW2d 777 (1995).
A thorny question arises when a portion of a defined contribution plan, such as a 401k, was accrued prior to the marriage, but investments in the plan continued during the marriage. It is easy to identify the account balance at the time of marriage and return that to the contributing spouse as his/her separate property upon divorce. But does that, without more, shortchange the contributing spouse by denying him/her the benefit of earnings during the marriage on those premarital contributions? With sufficient economic data or testimony, it should be possible to segregate earnings on premarital contributions (which in theory are separate property) from earnings of contributions made from income during the marriage (which is clearly marital property). Yet this approach was rejected recently by the Court of Appeals in the unpublished of Skinner v Skinner, Court of Appeals No. 289740, decided 5/18/10.[11]
Drafting Tip: The language used in Booth and Boonstra to describe the process of awarding a portion of separate property to the nonowner-spouse, “treated/considered”, is not technically correct. Frankly, sloppy use of language creates confusion. Purists, like James P. Ryan, Esq., of Plymouth, point out that the proper language is, instead, “invaded/divided”.
G. Why It Matters - Invasion of Separate Property
Notwithstanding a characterization of an asset as “separate”, the tenacious and creative practitioner will find case law on both sides of most of these issues. Other legal concepts like “commingling” may destroy the separate nature of an otherwise separate asset, and thereby permit the court to treat the asset as marital property.
The cases are obviously fact-intensive, and much depends on the development of the proofs. The key is to understand that a marital asset is subject to division using the equitable factors found in Sparks, while a separate asset may only be divided if either of the statutory exceptions is met.
A. Motion for Partial Summary Disposition pursuant to MCR 2.116 when dealing with separate property claims, particularly when a §23 “insufficiency” claim is not asserted. You educate the court on your claim (either that the asset is separate or marital), and a ruling either way should greatly assist in resolving the case.
Defining the marital estate is not easy. Neither is defining what “marital” and “separate” property are. Ultimately, it is a matter of advocacy, that is, persuading the fact-finder based on knowledge of the law and what makes common sense in a particular fact-pattern. The intent of these materials is to make you a better advocate
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
Tuesday, July 13, 2010
Domestic Violence
Flint Divorce Lawyer talks about The Mel Gibson domestic violence case as a classic example of what happens in private from publicly looking responsible people who engage in domestic violence.
BITTER CUSTODY FIGHT, IS THIS AN EXCUSE?
Gibson, 54, and Grigorieva, 40, are now locked in a bitter custody dispute and the superstar facing domestic abuse allegations and the fallout from leaked audiotapes in which Gibson berates and threatens Grigorieva during profane rants. [1]
DEATH THREAT
On a new recording released today, 07/12/2010, Mel Gibson allegedly threatens to "bury" the mother of his child. Although just one listen and it's clear the actor's digging his own grave.[3]
TAPES RELEASED
A source close to the case claims the tapes were recorded in February on the heels of a heated exchange in January. [1]
WAS MOM SHAKING THE BABY?
Both sides agree they argued in January but differ on what exactly transpired. Grigorieva claims Gibson punched her in the face "more than once," breaking a tooth and knocking out a veneer. Another Gibson source says the actor only "tried to stop [Oskana] from shaking their baby like a ragdoll" during the altercation. [1]
ANOTHER HOLLYWOOD IDOL IN DOMESTIC VIOLENCE, MEL IS NOT ALONE.
Charlie Sheen's hearing for domestic violence, which was scheduled to begin today, has been delayed until August 2, 2010 -- just as filming for the new season of Two And A Half Men is due to begin.[4]
IT’S A PATTERN OF BEHAVIOR
Domestic violence ,said Flint Divorce Attorney Terry Bankert ,is a pattern of behavior in
which one intimate partner uses physical violence, coercion,
threats, intimidation, isolation or emotional, sexual
or economic abuse to control the other partner in the
relationship.
PERSONAL CHOICE, HABIT?
Domestic violence occurs when one household member chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another. All 50 states have statutes authorizing courts to issue orders of protection to domestic violence victims. [5]
IS PPO AN OPTION?
In Michigan, a victim of domestic violence may obtain a personal protection order (PPO) to enjoin abusive behavior. PPOs may enjoin specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. In addition, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. They may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable apprehension of violence. [5]
DOMESTIC VIOLENCE IS MORE THAN POOR COUPLES HITTING EACH OTHER
A divorce Attorney points out Domestic violence does not necessarily
involve physical violence and it equally affects all
aspects of our society, rich or poor, regardless of race,
ethnicity, religion or national origin.
DOMESTIC VIOLENCE IS WIDE SPREAD
Domestic violence is an epidemic. One out of nearly
every three women will be the victim of domestic violence
in her lifetime. Between three and ten million
children are exposed to domestic violence every year
and that exposure has a negative impact on their development.
HOLLYWOOD KEEPS DOMESTIC VIOLENCE QUIET
when it comes to Mel Gibson, who seems to have offended everyone possible with his racist, sexist, anti-Semitic, and outright terrorist rants in the tapes that have been “leaked” to the world over the past week, Hollywood seems to be keeping its usually highly-opinionated mouth closed.[2]
SPOUSES ARE AWARE OF HOW BAD THEIR ACTIONS ARE
The troubled state of his relationship with girlfriend Oksana Grigorieva was not lost on Mel Gibson. "He realized how unhealthy the relationship was and recognized that they were in a bad place and he was getting his buttons pushed," a friend tells [1]
WHAT ARE EXAMPLES OF DOMESTIC VIOLENCE
Domestic violence is defined as a pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org. In addition to physical violence, abusers may use many forms of control against their partners, including
isolation from friends and family;
verbal abuse (belittlement, taunting);
intimidation (destroying property, abusing pets, displaying firearms);
economic abuse (controlling access to money, preventing or interfering with employment);
coercion (threatening to commit suicide or to report incidents to protective services);
use of the children (harassment during parenting time, threatening to kidnap the children);
sexual abuse; and
stalking.[5]
DOMESTIC VIOLENCE CAN MOVE FROM SPOUSE TO CHILDREN
Moreover, studies indicate that forty to sixty
percent of men who abuse women also abuse children
Posted here by
Terry Bankert
http://attorneybankert.com
[1]
http://www.people.com/people/article/0,,20401383,00.html
[2]
http://www.foxnews.com/entertainment/2010/07/13/isnt-hollywood-outraged-mel-gibsons-racist-sexist-rants/
[3]
http://ca.eonline.com/uberblog/b189914_death_threats_admission_of_violence.html
[4]
http://www.examiner.com/x-36751-Canada-Celebrity-Headlines-Examiner~y2010m7d12-Charlie-Sheen-hearing-delayed-until-August--filming-jeopardized
[5]
Michigan Family Law ch 18 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=18
(last updated 07/02/2010).
BITTER CUSTODY FIGHT, IS THIS AN EXCUSE?
Gibson, 54, and Grigorieva, 40, are now locked in a bitter custody dispute and the superstar facing domestic abuse allegations and the fallout from leaked audiotapes in which Gibson berates and threatens Grigorieva during profane rants. [1]
DEATH THREAT
On a new recording released today, 07/12/2010, Mel Gibson allegedly threatens to "bury" the mother of his child. Although just one listen and it's clear the actor's digging his own grave.[3]
TAPES RELEASED
A source close to the case claims the tapes were recorded in February on the heels of a heated exchange in January. [1]
WAS MOM SHAKING THE BABY?
Both sides agree they argued in January but differ on what exactly transpired. Grigorieva claims Gibson punched her in the face "more than once," breaking a tooth and knocking out a veneer. Another Gibson source says the actor only "tried to stop [Oskana] from shaking their baby like a ragdoll" during the altercation. [1]
ANOTHER HOLLYWOOD IDOL IN DOMESTIC VIOLENCE, MEL IS NOT ALONE.
Charlie Sheen's hearing for domestic violence, which was scheduled to begin today, has been delayed until August 2, 2010 -- just as filming for the new season of Two And A Half Men is due to begin.[4]
IT’S A PATTERN OF BEHAVIOR
Domestic violence ,said Flint Divorce Attorney Terry Bankert ,is a pattern of behavior in
which one intimate partner uses physical violence, coercion,
threats, intimidation, isolation or emotional, sexual
or economic abuse to control the other partner in the
relationship.
PERSONAL CHOICE, HABIT?
Domestic violence occurs when one household member chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another. All 50 states have statutes authorizing courts to issue orders of protection to domestic violence victims. [5]
IS PPO AN OPTION?
In Michigan, a victim of domestic violence may obtain a personal protection order (PPO) to enjoin abusive behavior. PPOs may enjoin specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. In addition, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. They may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable apprehension of violence. [5]
DOMESTIC VIOLENCE IS MORE THAN POOR COUPLES HITTING EACH OTHER
A divorce Attorney points out Domestic violence does not necessarily
involve physical violence and it equally affects all
aspects of our society, rich or poor, regardless of race,
ethnicity, religion or national origin.
DOMESTIC VIOLENCE IS WIDE SPREAD
Domestic violence is an epidemic. One out of nearly
every three women will be the victim of domestic violence
in her lifetime. Between three and ten million
children are exposed to domestic violence every year
and that exposure has a negative impact on their development.
HOLLYWOOD KEEPS DOMESTIC VIOLENCE QUIET
when it comes to Mel Gibson, who seems to have offended everyone possible with his racist, sexist, anti-Semitic, and outright terrorist rants in the tapes that have been “leaked” to the world over the past week, Hollywood seems to be keeping its usually highly-opinionated mouth closed.[2]
SPOUSES ARE AWARE OF HOW BAD THEIR ACTIONS ARE
The troubled state of his relationship with girlfriend Oksana Grigorieva was not lost on Mel Gibson. "He realized how unhealthy the relationship was and recognized that they were in a bad place and he was getting his buttons pushed," a friend tells [1]
WHAT ARE EXAMPLES OF DOMESTIC VIOLENCE
Domestic violence is defined as a pattern of behavior used to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org. In addition to physical violence, abusers may use many forms of control against their partners, including
isolation from friends and family;
verbal abuse (belittlement, taunting);
intimidation (destroying property, abusing pets, displaying firearms);
economic abuse (controlling access to money, preventing or interfering with employment);
coercion (threatening to commit suicide or to report incidents to protective services);
use of the children (harassment during parenting time, threatening to kidnap the children);
sexual abuse; and
stalking.[5]
DOMESTIC VIOLENCE CAN MOVE FROM SPOUSE TO CHILDREN
Moreover, studies indicate that forty to sixty
percent of men who abuse women also abuse children
Posted here by
Terry Bankert
http://attorneybankert.com
[1]
http://www.people.com/people/article/0,,20401383,00.html
[2]
http://www.foxnews.com/entertainment/2010/07/13/isnt-hollywood-outraged-mel-gibsons-racist-sexist-rants/
[3]
http://ca.eonline.com/uberblog/b189914_death_threats_admission_of_violence.html
[4]
http://www.examiner.com/x-36751-Canada-Celebrity-Headlines-Examiner~y2010m7d12-Charlie-Sheen-hearing-delayed-until-August--filming-jeopardized
[5]
Michigan Family Law ch 18 (Hon. Marilyn J. Kelly et al eds, ICLE 6th ed 2004), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2004553510&chapter=18
(last updated 07/02/2010).
Sunday, June 6, 2010
MICHIGAN OAKLAND COUNTY DIVORCE PRESENTED BY FLINT MICHIGAN DIVORCE LAWYER TERRY BANKERT 235-1970
78 Mich. App. 73, *; 259 N.W.2d 244, **;
1977 Mich. App. LEXIS 1167, ***
ABADI v. ABADI
Docket No. 29248
Court of Appeals of Michigan
78 Mich. App. 73; 259 N.W.2d 244; 1977 Mich. App. LEXIS 1167
June 22, 1977, Submitted
September 6, 1977, Decided
SUBSEQUENT HISTORY: [***1] Leave to appeal denied, 402 Mich .
PRIOR HISTORY: Appeal from Oakland, Robert L. Templin, J.
DISPOSITION: Affirmed.
CASE SUMMARY:PROCEDURAL POSTURE: Defendant husband sought review of the judgment of the Oakland County Circuit Court (Michigan), which denied the husband's motion to dismiss the complaint seeking a divorce decree because of plaintiff wife's failure to establish proper residency in the state.
OVERVIEW: After the trial court denied the husband's motion to dismiss the complaint seeking a divorce decree, the husband sought review. On appeal, the husband argued that the trial court erred in denying his motion because the wife failed to establish proper residency in the state. The court disagreed and affirmed, holding that the evidence had revealed that the wife had left the marital home where she had lived with her husband since their marriage in 1969, and moved to Virginia because she was fearful of returning to the marital home. The court held that the wife had checked into a hotel in the hope of finding a job as a keypunch operator in the county and that she divided her time between looking for a job and looking for a suitable apartment. The court held that the trial court did not abuse its discretion in making the determination that the wife's testimony was credible and that she had satisfied the 10-day residency requirement. The court held that the 10-day requirement with respect to the county in which the action was brought was a venue provision only and was not designed to bar persons such as the wife from dissolving their marital bonds in the state.
OUTCOME: The court affirmed the order denying the husband's motion to dismiss the complaint seeking a divorce decree.
CORE TERMS: divorce, default, abuse of discretion, alimony, judgment of divorce, immediately preceding, residency requirement, discovery, marital, questions of fact, attorney's fees, divorce action, residency, drastic, trial date, deposition, apartment, venue, division of properties, ability to pay, standard of living, counsel fees, present case, divorce judgment, divorce cases, divorce proceeding, jurisdictional, mathematical, interfered, excluding
SYLLABUS
Complaint by Barbara F. Abadi against Joseph Abadi for divorce. Default judgment for plaintiff with an order for alimony payments. Defendant appeals.
COUNSEL: Robert J. Bromley, for plaintiff.
Ronald G. Hakim, for defendant.
JUDGES: Beasley, P. J., and V. J. Brennan and J. R. McDonald, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
OPINION BY: BRENNAN
OPINION
[*74] [**245] Defendant Joseph Abadi appeals from a July 2, 1975, order of Oakland [*75] County Circuit Court Judge Robert Templin denying defendant's motion to dismiss the complaint because of plaintiff Barbara F. Abadi's failure to establish proper residency in this state. On October 4, 1973, plaintiff left the marital home in Wayne County, where she had lived with her husband since their marriage in 1969, and flew by commercial means to Virginia where she attended a class reunion. She returned to Michigan on October 8, 1973, and, according to her testimony, checked into a Holiday Inn in the city of Farmington in Oakland County. She was fearful of returning to the marital home because she might be subject to personal danger from her husband. The [***4] complaint for divorce was filed on October 19, 1973, and on October 20, 1973, plaintiff checked out of the Holiday Inn and returned to her parents' home in the State of Virginia.
According to plaintiff's testimony, she checked into the Holiday Inn in Farmington in hopes of finding a job as a key punch operator in Oakland County, and she divided her time between looking for a job and looking for a suitable apartment. She was unable to find an apartment, and on October 18, 1973, telephoned her brother in Virginia and indicated that she wanted him to help her in moving her belongings to Virginia. Plaintiff spent some further time attempting to look for an apartment, but finally gave up the search on October 20, 1973.
After hearing testimony, Judge Templin noted a discrepancy between plaintiff's story while on the witness stand and the factual version she gave during an earlier deposition. However, Judge Templin felt satisfied that plaintiff was telling the truth while in his courtroom, and that any differences between her in-court testimony and that [*76] taken on deposition could be attributed to her nervousness at the time of the deposition. Therefore, he determined that [***5] plaintiff's testimony should be accepted as credible and that she had satisfied the 10-day residency requirement.
On appeal, defendant raises two allegations of error. We will speak to each in order.
[**246] Defendant first contends that plaintiff failed to satisfy the residency requirements which would enable the Oakland County Circuit Court to obtain jurisdiction. MCLA 552.9; MSA 25.89.
Michigan statute provides that HN1a judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint. MCLA 552.9; MSA 25.89. Calculation of those 10 days is ordinarily accomplished by excluding the first day and including the last. Beaudry v Beaudry, 20 Mich App 287, 288; 174 NW2d 28 (1969). Whether such a residency requirement has been satisfied is a question of fact involving the intention of the person involved. Banfield v Banfield, 318 Mich 38, 41-44; 27 NW2d 336 (1947).
We recognize that the statute includes a primary requirement that the complainant or defendant reside in the state for 180 days [***6] immediately preceding the filing of the complaint. That requirement is intended to be jurisdictional, so as to prevent "forum shopping" by complainants who may live in states where divorces are more difficult to obtain than they are under the Michigan nofault divorce law. See Sosna v Iowa, 419 U.S. 393; 95 S Ct 553; 42 L Ed 2d 532 (1975).
However, we find the 10-day requirement with respect to the county in which the action is [*77] brought is a venue provision only. Regarding the present case, plaintiff has resided in this state since 1969; but the change in her marital status has unexpectedly disrupted her life style and prompted her to seek solace with her family outside Michigan. The 10-day residency requirement is not designed to bar persons such as plaintiff from dissolving their marital bonds in this state.
As divorce is an equitable action, trial of all questions of fact is reposed in the court without the assistance of a jury. Judge Templin properly held immediate trial on the disputed factual question of plaintiff's residency and her intention with respect to residency during the 10 days immediately preceding the filing of the complaint. GCR 1963, 116.3. [***7] Having resolved the factual questions in plaintiff's favor, the trial court properly denied defendant's motion. We will not disturb such factual determinations on appeal. We find no error in Judge Templin's disposition of this matter.
Defendant next alleges that the trial court abused its discretion in granting plaintiff's motion for default in a contested divorce proceeding when defendant allegedly failed to produce documents, where the default was granted under GCR 1963, 313.2(2)(c).
HN2Refusal to make discovery authorizes a default judgment under the present court rule. See GCR 1963, 313.2(2)(c). Washburn v Lake Diane Inc., 17 Mich App 704, 706; 170 NW2d 298 (1969). We realize that dismissing an action or rendering judgment by default for refusal to make discovery are drastic sanctions. Nevertheless, the ultimate power of the court to impose such sanctions is an appropriate remedy where such refusal is flagrant and wanton. We cannot say on review that the present case did not justify such drastic action.
[*78] The case had been pending for more than two years. Further, the trial court had entered an order requiring defendant to produce virtually the same documents [***8] on May 28, 1975. Plaintiff's attorney, justifiably apprehensive of ever receiving the documents in question, properly moved the court to enforce the 1975 order. As the trial date approached, and as the defendant clearly indicated that he would not be in court on the trial date, the trial judge was faced with no alternative but to take some drastic action. The arrest warrant issued after the alimony show cause hearing had not been served. The record was replete with both testimony and affidavit that the defendant was avoiding service. The transcript reveals that the attorney-client relationship between defendant and his attorney [**247] had broken down. Indeed, shortly before the trial date in this cause, defendant sought new counsel.
On these facts, we find the trial judge did not abuse his discretion in ordering entry of a default against defendant. Humphrey v Adams, 69 Mich App 577, 578-582; 245 NW2d 167 (1976), Bechtel v Bechtel, 33 Mich App 506, 507-509; 190 NW2d 248 (1971).
Defendant questions whether the trial court had adequate evidence to sustain a property division which awarded the plaintiff $ 150,000 cash and permanent alimony in the amount of $ 150 [***9] per week plus attorney's fees in the amount of $ 19,075 as well as preserving prior orders of the court in a judgment of divorce granted June 14, 1976.
HN3We will modify or reverse a judgment of divorce where the trial court commits an abuse of discretion in division of properties. Simmons v Simmons, 58 Mich App 480, 482; 228 NW2d 432 (1975). However, we also recognize that the trial court has [*79] great discretion in the adjustment of property rights. Division of property need not be equal because the distribution of property in a divorce action is not governed by rigid rules or mathematical formulas. Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956).
Even a short perusal of the divorce judgment reveals a substantial degree of fairness. We believe the trial court properly considered several factors. Specifically, testimony existed concerning the source of the property, contributions toward acquisition, years of married life, and needs of the parties, the parties' earning ability, and the cause for divorce. Having considered all of these factors, the trial judge properly awarded the settlement as he did. We find no abuse of discretion. Further, HN4the trial [***10] court's right to award permanent alimony in a divorce case is statutory. MCLA 552.23; MSA 25.103. Under the statute, the court may award to either party a part of the real and personal estate of the other, giving due regard to the various circumstances of the case.
Since the plaintiff was no longer working, had left Michigan, was going to school to attempt to better her station in life, and had evidenced certain medical problems arising from the strain of the divorce proceedings, we do not find the trial court abused its discretion in his award of alimony. The court had due regard for the condition and situation of the parties, health and age, and the past relations and conduct of the parties. He considered the needs and property of the wife, her ability to do productive work in keeping with the standard of living to which she had become accustomed, and the husband's ability to pay. Johnson v Johnson, supra at 426-428.
We also note that HN5the allowance of expense [*80] money and amount of attorney's fees rest in the sound discretion of the trial court. Metcalf v Metcalf, 28 Mich App 442, 448; 184 NW2d 560 (1970). An award or refusal of expenses or counsel fees will [***11] be interfered with on appeal only where manifest abuse of discretion can be shown. Schilleman v Schilleman, 61 Mich App 446, 450; 232 NW2d 737 (1975), Pinney v Pinney, 47 Mich App 290, 293; 209 NW2d 467 (1973). We find no abuse of discretion in the trial court's award of attorney fees.
Having reviewed the errors defendant alleges which we believe merit comment and finding none persuasive, we sustain the trial court.
Affirmed.
Posted here by
Terry Bankert
http://attorneybankert.com/
or
http://dumpmyspouse.com/
1977 Mich. App. LEXIS 1167, ***
ABADI v. ABADI
Docket No. 29248
Court of Appeals of Michigan
78 Mich. App. 73; 259 N.W.2d 244; 1977 Mich. App. LEXIS 1167
June 22, 1977, Submitted
September 6, 1977, Decided
SUBSEQUENT HISTORY: [***1] Leave to appeal denied, 402 Mich .
PRIOR HISTORY: Appeal from Oakland, Robert L. Templin, J.
DISPOSITION: Affirmed.
CASE SUMMARY:PROCEDURAL POSTURE: Defendant husband sought review of the judgment of the Oakland County Circuit Court (Michigan), which denied the husband's motion to dismiss the complaint seeking a divorce decree because of plaintiff wife's failure to establish proper residency in the state.
OVERVIEW: After the trial court denied the husband's motion to dismiss the complaint seeking a divorce decree, the husband sought review. On appeal, the husband argued that the trial court erred in denying his motion because the wife failed to establish proper residency in the state. The court disagreed and affirmed, holding that the evidence had revealed that the wife had left the marital home where she had lived with her husband since their marriage in 1969, and moved to Virginia because she was fearful of returning to the marital home. The court held that the wife had checked into a hotel in the hope of finding a job as a keypunch operator in the county and that she divided her time between looking for a job and looking for a suitable apartment. The court held that the trial court did not abuse its discretion in making the determination that the wife's testimony was credible and that she had satisfied the 10-day residency requirement. The court held that the 10-day requirement with respect to the county in which the action was brought was a venue provision only and was not designed to bar persons such as the wife from dissolving their marital bonds in the state.
OUTCOME: The court affirmed the order denying the husband's motion to dismiss the complaint seeking a divorce decree.
CORE TERMS: divorce, default, abuse of discretion, alimony, judgment of divorce, immediately preceding, residency requirement, discovery, marital, questions of fact, attorney's fees, divorce action, residency, drastic, trial date, deposition, apartment, venue, division of properties, ability to pay, standard of living, counsel fees, present case, divorce judgment, divorce cases, divorce proceeding, jurisdictional, mathematical, interfered, excluding
SYLLABUS
Complaint by Barbara F. Abadi against Joseph Abadi for divorce. Default judgment for plaintiff with an order for alimony payments. Defendant appeals.
COUNSEL: Robert J. Bromley, for plaintiff.
Ronald G. Hakim, for defendant.
JUDGES: Beasley, P. J., and V. J. Brennan and J. R. McDonald, * JJ.
* Circuit judge, sitting on the Court of Appeals by assignment.
OPINION BY: BRENNAN
OPINION
[*74] [**245] Defendant Joseph Abadi appeals from a July 2, 1975, order of Oakland [*75] County Circuit Court Judge Robert Templin denying defendant's motion to dismiss the complaint because of plaintiff Barbara F. Abadi's failure to establish proper residency in this state. On October 4, 1973, plaintiff left the marital home in Wayne County, where she had lived with her husband since their marriage in 1969, and flew by commercial means to Virginia where she attended a class reunion. She returned to Michigan on October 8, 1973, and, according to her testimony, checked into a Holiday Inn in the city of Farmington in Oakland County. She was fearful of returning to the marital home because she might be subject to personal danger from her husband. The [***4] complaint for divorce was filed on October 19, 1973, and on October 20, 1973, plaintiff checked out of the Holiday Inn and returned to her parents' home in the State of Virginia.
According to plaintiff's testimony, she checked into the Holiday Inn in Farmington in hopes of finding a job as a key punch operator in Oakland County, and she divided her time between looking for a job and looking for a suitable apartment. She was unable to find an apartment, and on October 18, 1973, telephoned her brother in Virginia and indicated that she wanted him to help her in moving her belongings to Virginia. Plaintiff spent some further time attempting to look for an apartment, but finally gave up the search on October 20, 1973.
After hearing testimony, Judge Templin noted a discrepancy between plaintiff's story while on the witness stand and the factual version she gave during an earlier deposition. However, Judge Templin felt satisfied that plaintiff was telling the truth while in his courtroom, and that any differences between her in-court testimony and that [*76] taken on deposition could be attributed to her nervousness at the time of the deposition. Therefore, he determined that [***5] plaintiff's testimony should be accepted as credible and that she had satisfied the 10-day residency requirement.
On appeal, defendant raises two allegations of error. We will speak to each in order.
[**246] Defendant first contends that plaintiff failed to satisfy the residency requirements which would enable the Oakland County Circuit Court to obtain jurisdiction. MCLA 552.9; MSA 25.89.
Michigan statute provides that HN1a judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint. MCLA 552.9; MSA 25.89. Calculation of those 10 days is ordinarily accomplished by excluding the first day and including the last. Beaudry v Beaudry, 20 Mich App 287, 288; 174 NW2d 28 (1969). Whether such a residency requirement has been satisfied is a question of fact involving the intention of the person involved. Banfield v Banfield, 318 Mich 38, 41-44; 27 NW2d 336 (1947).
We recognize that the statute includes a primary requirement that the complainant or defendant reside in the state for 180 days [***6] immediately preceding the filing of the complaint. That requirement is intended to be jurisdictional, so as to prevent "forum shopping" by complainants who may live in states where divorces are more difficult to obtain than they are under the Michigan nofault divorce law. See Sosna v Iowa, 419 U.S. 393; 95 S Ct 553; 42 L Ed 2d 532 (1975).
However, we find the 10-day requirement with respect to the county in which the action is [*77] brought is a venue provision only. Regarding the present case, plaintiff has resided in this state since 1969; but the change in her marital status has unexpectedly disrupted her life style and prompted her to seek solace with her family outside Michigan. The 10-day residency requirement is not designed to bar persons such as plaintiff from dissolving their marital bonds in this state.
As divorce is an equitable action, trial of all questions of fact is reposed in the court without the assistance of a jury. Judge Templin properly held immediate trial on the disputed factual question of plaintiff's residency and her intention with respect to residency during the 10 days immediately preceding the filing of the complaint. GCR 1963, 116.3. [***7] Having resolved the factual questions in plaintiff's favor, the trial court properly denied defendant's motion. We will not disturb such factual determinations on appeal. We find no error in Judge Templin's disposition of this matter.
Defendant next alleges that the trial court abused its discretion in granting plaintiff's motion for default in a contested divorce proceeding when defendant allegedly failed to produce documents, where the default was granted under GCR 1963, 313.2(2)(c).
HN2Refusal to make discovery authorizes a default judgment under the present court rule. See GCR 1963, 313.2(2)(c). Washburn v Lake Diane Inc., 17 Mich App 704, 706; 170 NW2d 298 (1969). We realize that dismissing an action or rendering judgment by default for refusal to make discovery are drastic sanctions. Nevertheless, the ultimate power of the court to impose such sanctions is an appropriate remedy where such refusal is flagrant and wanton. We cannot say on review that the present case did not justify such drastic action.
[*78] The case had been pending for more than two years. Further, the trial court had entered an order requiring defendant to produce virtually the same documents [***8] on May 28, 1975. Plaintiff's attorney, justifiably apprehensive of ever receiving the documents in question, properly moved the court to enforce the 1975 order. As the trial date approached, and as the defendant clearly indicated that he would not be in court on the trial date, the trial judge was faced with no alternative but to take some drastic action. The arrest warrant issued after the alimony show cause hearing had not been served. The record was replete with both testimony and affidavit that the defendant was avoiding service. The transcript reveals that the attorney-client relationship between defendant and his attorney [**247] had broken down. Indeed, shortly before the trial date in this cause, defendant sought new counsel.
On these facts, we find the trial judge did not abuse his discretion in ordering entry of a default against defendant. Humphrey v Adams, 69 Mich App 577, 578-582; 245 NW2d 167 (1976), Bechtel v Bechtel, 33 Mich App 506, 507-509; 190 NW2d 248 (1971).
Defendant questions whether the trial court had adequate evidence to sustain a property division which awarded the plaintiff $ 150,000 cash and permanent alimony in the amount of $ 150 [***9] per week plus attorney's fees in the amount of $ 19,075 as well as preserving prior orders of the court in a judgment of divorce granted June 14, 1976.
HN3We will modify or reverse a judgment of divorce where the trial court commits an abuse of discretion in division of properties. Simmons v Simmons, 58 Mich App 480, 482; 228 NW2d 432 (1975). However, we also recognize that the trial court has [*79] great discretion in the adjustment of property rights. Division of property need not be equal because the distribution of property in a divorce action is not governed by rigid rules or mathematical formulas. Johnson v Johnson, 346 Mich 418, 431; 78 NW2d 216 (1956).
Even a short perusal of the divorce judgment reveals a substantial degree of fairness. We believe the trial court properly considered several factors. Specifically, testimony existed concerning the source of the property, contributions toward acquisition, years of married life, and needs of the parties, the parties' earning ability, and the cause for divorce. Having considered all of these factors, the trial judge properly awarded the settlement as he did. We find no abuse of discretion. Further, HN4the trial [***10] court's right to award permanent alimony in a divorce case is statutory. MCLA 552.23; MSA 25.103. Under the statute, the court may award to either party a part of the real and personal estate of the other, giving due regard to the various circumstances of the case.
Since the plaintiff was no longer working, had left Michigan, was going to school to attempt to better her station in life, and had evidenced certain medical problems arising from the strain of the divorce proceedings, we do not find the trial court abused its discretion in his award of alimony. The court had due regard for the condition and situation of the parties, health and age, and the past relations and conduct of the parties. He considered the needs and property of the wife, her ability to do productive work in keeping with the standard of living to which she had become accustomed, and the husband's ability to pay. Johnson v Johnson, supra at 426-428.
We also note that HN5the allowance of expense [*80] money and amount of attorney's fees rest in the sound discretion of the trial court. Metcalf v Metcalf, 28 Mich App 442, 448; 184 NW2d 560 (1970). An award or refusal of expenses or counsel fees will [***11] be interfered with on appeal only where manifest abuse of discretion can be shown. Schilleman v Schilleman, 61 Mich App 446, 450; 232 NW2d 737 (1975), Pinney v Pinney, 47 Mich App 290, 293; 209 NW2d 467 (1973). We find no abuse of discretion in the trial court's award of attorney fees.
Having reviewed the errors defendant alleges which we believe merit comment and finding none persuasive, we sustain the trial court.
Affirmed.
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Friday, May 28, 2010
PRE-NUPTIAL Agreement in Saginaw Divorce
SAGINAW DIVORCE PRE-NUPTUAL REVIEWED BY ATTORNEY TERRY BANKERT A DIVORCE LAWYER. For immediate help with your family law questions call 810-235-1970.
THE SAGINAW DIVORCE PRE- NUPTIAL CASE
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM
(This opinion has been modified for media presentation)
To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf
SAAD, J.
Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.
VI. DEFENDANT’S CROSS-APPEAL: PRENUPTIAL AGREEMENT
On cross-appeal, defendant challenges the trial court’s determination that the parties did not intend for the prenuptial agreement to apply to a divorce. A trial court’s refusal to enforce a prenuptial agreement is reviewed for abuse of discretion. Rinvelt v Rinvelt, 190 Mich App 372, 382; 475 NW2d 478 (1991).
Under Michigan law, trial courts recognize prenuptial agreements governing the division of property in the event of a divorce. Reed, 265 Mich App at 141-142. A court should never disregard a valid prenuptial agreement but should instead enforce its clear and unambiguous terms as written. Id. at 144-145. See also MCL 557.28, providing that “[a] contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place. However, “[a] prenuptial agreement may be voided (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact, (2) if it was unconscionable when executed, or (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.” Reed, 265 Mich App at 142-143. To determine if a prenuptial agreement is unenforceable because of a change in circumstances, the focus is on whether the changed circumstances were reasonably foreseeable either before or during the signing of the prenuptial agreement. Id. at 144. See also Lentz v Lentz, 271 Mich App 465, 471; 721 NW2d 861 (2006), and Rinvelt, 190 Mich App at 380, holding that an otherwise valid prenuptial agreement could be invalidated on the basis of the nondisclosure of a material fact, or if a change of circumstances since the execution of the agreement make its enforcement unfair and unreasonable.
This issue raises questions of contract interpretation. Defendant asserts that the prenuptial agreement clearly and unambiguously provided for the division of property in the event of divorce, but he fails to address Section 3.1, which states that “the parties specifically agree and state that this Agreement is intended to waive rights upon death and is not made in contemplation of divorce.” The trial court determined, based on this language, that the agreement did not apply to divorce. The trial court did not address the remaining provisions of Section 3, which provide for the division of property in a divorce, notwithstanding the disclaimer in Section 3.1.
A contract must be interpreted according to its plain and ordinary meaning. Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008). A contract is ambiguous if it allows two or more reasonable interpretations, or if the provisions cannot be reconciled with each other. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 721-722; 565 NW2d 401 (1997). Under ordinary contract principles if contractual language is clear, construction of the contract is a question of law for the court. Id. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. Id. A court may not rewrite clear and unambiguous language under the guise of interpretation. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). Rather, courts must give “effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.” Klapp, 468 Mich at 463.
Here, the prenuptial agreement is ambiguous. The phrase, “the parties specifically agree and state that this Agreement is intended to waive rights upon death and is not made in contemplation of divorce” does not unambiguously disclaim application of the agreement in the case of divorce. Rather, it could be construed to mean that the contingency of divorce was not the purpose for which the parties entered into the agreement. The inclusion of several provisions for dividing property in the event of divorce militates against the interpretation that the parties intended for the agreement to apply only to dissolution of marriage by death. Assuming, arguendo, that Section 3.1 unambiguously disclaims application of the agreement in the event of divorce, the following sections create an irreconcilable conflict that renders the agreement ambiguous. Klapp, 468 Mich at 467. Disregarding these provisions would violate the principle of giving a contract an interpretation that renders some part of the contract surplusage or nugatory. Id. at 463.
Moreover, Section 3.7 creates multiple options depending upon the enforceability of prenuptial agreements intended to govern property divisions in the event of divorce. This section states as follows:
Whether or not any section of Paragraph 3 of this Pre-Marital Agreement is valid or enforceable, the parties agree that this paragraph is severable from the balance of the Agreement and shall not effect the validity or enforceability of any other provision of this Agreement. This Agreement may be introduced as evidence at the time of any divorce or separation proceedings for the court’s consideration of the parties’ intention at the time of their marriage. [Emphasis added.]
This section both preserves the prenuptial agreement as an agreement in contemplation of death in the event that it is deemed unenforceable in regard to divorce, and preserves the agreement as evidence of the parties’ intent in an action for divorce. Read in conjunction with Section 3.1, the parties assert the following: (1) that the agreement was not made in contemplation of divorce; (2) that the agreement lays out a plan for dividing assets in a divorce; (3) that the plan for dividing assets in a divorce is severable from the contract and would not invalidate the remainder of the contract; and (4) if the plan for dividing assets in a divorce is not enforceable, it can serve as evidence of the parties’ intent. At least two interpretations of this contract are possible: (1) the prenuptial agreement was not intended to govern the division of assets in a divorce; and (2) the prenuptial agreement should govern, or at least guide, the division of assets in a divorce if such provisions are legally enforceable.
Plaintiff argues that the ambiguities of the contract should be construed against defendant as the drafter of the agreement. This is an incorrect statement of the law: the rule of contra proferentem, i.e., that ambiguities are to be construed against the drafter of the contract, should only be applied if all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have left the finder of fact unable to determine what the parties intended their contract to mean. Klapp, 468 Mich at 470-471; Smith v Smith, 278 Mich App 198, 200; 748 NW2d 258 (2008).
We remand this case to the trial court to resolve the ambiguity in the prenuptial agreement. On remand, the trial court “must interpret the contract’s terms, in light of the apparent purpose of the contract as a whole, the rules of contract construction, and extrinsic evidence of intent and meaning.” Klapp, 468 Mich at 469. At trial, neither party presented extrinsic evidence regarding the meaning of the prenuptial agreement. The trial court may consider holding an evidentiary hearing on this matter if necessary to construe the prenuptial agreement. On remand, if the trial court determines that the parties intended for the contract to govern division of property in a divorce, it should further consider the meaning of the term “contribution” as used in the prenuptial agreement in reference to assets acquired during the marriage. It may also address plaintiff’s arguments that the prenuptial agreement should be set aside on the basis of changed circumstances.
We affirm the trial court’s judgment as it pertains to the Sawmill Creek property and the Chemical Bank Primevest Account. We remand to the court for further findings and proceedings regarding the following: the decision to award plaintiff alimony in gross in lieu of spousal support; discovery of the P.C. business records; the trial court’s overall division of property and the valuation of certain specific assets; the award of attorney fees to plaintiff; and the interpretation of the prenuptial agreement with respect to divorce. We do not retain jurisdiction.
Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM
[2]
CAP HEADLINES OR (trb)
Terry Bankert
http://attorneybankert.com
MISC
FOOTNOTES
1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.
THE SAGINAW DIVORCE PRE- NUPTIAL CASE
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM
(This opinion has been modified for media presentation)
To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf
SAAD, J.
Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.
VI. DEFENDANT’S CROSS-APPEAL: PRENUPTIAL AGREEMENT
On cross-appeal, defendant challenges the trial court’s determination that the parties did not intend for the prenuptial agreement to apply to a divorce. A trial court’s refusal to enforce a prenuptial agreement is reviewed for abuse of discretion. Rinvelt v Rinvelt, 190 Mich App 372, 382; 475 NW2d 478 (1991).
Under Michigan law, trial courts recognize prenuptial agreements governing the division of property in the event of a divorce. Reed, 265 Mich App at 141-142. A court should never disregard a valid prenuptial agreement but should instead enforce its clear and unambiguous terms as written. Id. at 144-145. See also MCL 557.28, providing that “[a] contract relating to property made between persons in contemplation of marriage shall remain in full force after marriage takes place. However, “[a] prenuptial agreement may be voided (1) when obtained through fraud, duress, mistake, or misrepresentation or nondisclosure of material fact, (2) if it was unconscionable when executed, or (3) when the facts and circumstances are so changed since the agreement was executed that its enforcement would be unfair and unreasonable.” Reed, 265 Mich App at 142-143. To determine if a prenuptial agreement is unenforceable because of a change in circumstances, the focus is on whether the changed circumstances were reasonably foreseeable either before or during the signing of the prenuptial agreement. Id. at 144. See also Lentz v Lentz, 271 Mich App 465, 471; 721 NW2d 861 (2006), and Rinvelt, 190 Mich App at 380, holding that an otherwise valid prenuptial agreement could be invalidated on the basis of the nondisclosure of a material fact, or if a change of circumstances since the execution of the agreement make its enforcement unfair and unreasonable.
This issue raises questions of contract interpretation. Defendant asserts that the prenuptial agreement clearly and unambiguously provided for the division of property in the event of divorce, but he fails to address Section 3.1, which states that “the parties specifically agree and state that this Agreement is intended to waive rights upon death and is not made in contemplation of divorce.” The trial court determined, based on this language, that the agreement did not apply to divorce. The trial court did not address the remaining provisions of Section 3, which provide for the division of property in a divorce, notwithstanding the disclaimer in Section 3.1.
A contract must be interpreted according to its plain and ordinary meaning. Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008). A contract is ambiguous if it allows two or more reasonable interpretations, or if the provisions cannot be reconciled with each other. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447 (2003); Meagher v Wayne State Univ, 222 Mich App 700, 721-722; 565 NW2d 401 (1997). Under ordinary contract principles if contractual language is clear, construction of the contract is a question of law for the court. Id. If the contract, although inartfully worded or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous. Id. A court may not rewrite clear and unambiguous language under the guise of interpretation. Henderson v State Farm Fire & Cas Co, 460 Mich 348, 354; 596 NW2d 190 (1999). Rather, courts must give “effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract surplusage or nugatory.” Klapp, 468 Mich at 463.
Here, the prenuptial agreement is ambiguous. The phrase, “the parties specifically agree and state that this Agreement is intended to waive rights upon death and is not made in contemplation of divorce” does not unambiguously disclaim application of the agreement in the case of divorce. Rather, it could be construed to mean that the contingency of divorce was not the purpose for which the parties entered into the agreement. The inclusion of several provisions for dividing property in the event of divorce militates against the interpretation that the parties intended for the agreement to apply only to dissolution of marriage by death. Assuming, arguendo, that Section 3.1 unambiguously disclaims application of the agreement in the event of divorce, the following sections create an irreconcilable conflict that renders the agreement ambiguous. Klapp, 468 Mich at 467. Disregarding these provisions would violate the principle of giving a contract an interpretation that renders some part of the contract surplusage or nugatory. Id. at 463.
Moreover, Section 3.7 creates multiple options depending upon the enforceability of prenuptial agreements intended to govern property divisions in the event of divorce. This section states as follows:
Whether or not any section of Paragraph 3 of this Pre-Marital Agreement is valid or enforceable, the parties agree that this paragraph is severable from the balance of the Agreement and shall not effect the validity or enforceability of any other provision of this Agreement. This Agreement may be introduced as evidence at the time of any divorce or separation proceedings for the court’s consideration of the parties’ intention at the time of their marriage. [Emphasis added.]
This section both preserves the prenuptial agreement as an agreement in contemplation of death in the event that it is deemed unenforceable in regard to divorce, and preserves the agreement as evidence of the parties’ intent in an action for divorce. Read in conjunction with Section 3.1, the parties assert the following: (1) that the agreement was not made in contemplation of divorce; (2) that the agreement lays out a plan for dividing assets in a divorce; (3) that the plan for dividing assets in a divorce is severable from the contract and would not invalidate the remainder of the contract; and (4) if the plan for dividing assets in a divorce is not enforceable, it can serve as evidence of the parties’ intent. At least two interpretations of this contract are possible: (1) the prenuptial agreement was not intended to govern the division of assets in a divorce; and (2) the prenuptial agreement should govern, or at least guide, the division of assets in a divorce if such provisions are legally enforceable.
Plaintiff argues that the ambiguities of the contract should be construed against defendant as the drafter of the agreement. This is an incorrect statement of the law: the rule of contra proferentem, i.e., that ambiguities are to be construed against the drafter of the contract, should only be applied if all conventional means of contract interpretation, including the consideration of relevant extrinsic evidence, have left the finder of fact unable to determine what the parties intended their contract to mean. Klapp, 468 Mich at 470-471; Smith v Smith, 278 Mich App 198, 200; 748 NW2d 258 (2008).
We remand this case to the trial court to resolve the ambiguity in the prenuptial agreement. On remand, the trial court “must interpret the contract’s terms, in light of the apparent purpose of the contract as a whole, the rules of contract construction, and extrinsic evidence of intent and meaning.” Klapp, 468 Mich at 469. At trial, neither party presented extrinsic evidence regarding the meaning of the prenuptial agreement. The trial court may consider holding an evidentiary hearing on this matter if necessary to construe the prenuptial agreement. On remand, if the trial court determines that the parties intended for the contract to govern division of property in a divorce, it should further consider the meaning of the term “contribution” as used in the prenuptial agreement in reference to assets acquired during the marriage. It may also address plaintiff’s arguments that the prenuptial agreement should be set aside on the basis of changed circumstances.
We affirm the trial court’s judgment as it pertains to the Sawmill Creek property and the Chemical Bank Primevest Account. We remand to the court for further findings and proceedings regarding the following: the decision to award plaintiff alimony in gross in lieu of spousal support; discovery of the P.C. business records; the trial court’s overall division of property and the valuation of certain specific assets; the award of attorney fees to plaintiff; and the interpretation of the prenuptial agreement with respect to divorce. We do not retain jurisdiction.
Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM
[2]
CAP HEADLINES OR (trb)
Terry Bankert
http://attorneybankert.com
MISC
FOOTNOTES
1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.
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