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
Sunday, November 14, 2010
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.
Posted here by
Terry Bankert
http://attorneybankert.com/
or
http://dumpmyspouse.com/
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.
Wednesday, May 12, 2010
Keeping you child custody order.
MICHIGAN Child Custody Issues discussed by Flint Divorce Lawyer Terry Bankert:
TO MICHIGAN PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL
We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]
And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]
MICHIGAN Divorce;
DID YOU KNOW:
Grounds for divorce.
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]
HOW MANY TIMES IS THIS PART VIOLATED?
The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]
MICHIGAN Child custody;
DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]
IN MICHGIAN THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS
Best interests of the child.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.[3]
Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]
MCL 722.28; Berger v. Berger; Brausch v. Brausch;
Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]
Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;
Vodvarka v. Grasmeyer [1]
SUMMARY OF MICHGIAN DIVORCE: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:
1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;
2. Defendant now works three days a week; and
3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.
Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]
HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE
Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]
WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT
In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]
NO CHANGE OF CIRCUMSTANCES
Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]
POOR PRESENTATION ON FATHERS PART
We observe that plaintiff has abandoned this issue on appeal by failing to properly brief
it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]
DIVORCED WITH FOUR CHILDREN
The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]
MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING
The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]
DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE
He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]
STEP MOMMY GROWING DEMANDS?
Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]
DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO
Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]
OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING
The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]
THIS SHOULD BE ABOUT THE CHILDREN
Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]
DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM
His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]
It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]
Posted 5/11/2010
By Terry Bankert
http://attorneybankert.com
See:
[1], from e-journal
Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM
e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher
[CAPITALIZATIONS and trb are Terry Bankerts comments]
[2] See [1] from the case
[3]
Michigan Family Law Benchbook
[4]
http://celebs.gather.com/viewArticle.action?articleId=281474978227525
TO MICHIGAN PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL
We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]
And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]
MICHIGAN Divorce;
DID YOU KNOW:
Grounds for divorce.
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”[3]
HOW MANY TIMES IS THIS PART VIOLATED?
The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]
MICHIGAN Child custody;
DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]
IN MICHGIAN THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS
Best interests of the child.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.[3]
Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]
MCL 722.28; Berger v. Berger; Brausch v. Brausch;
Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]
Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;
Vodvarka v. Grasmeyer [1]
SUMMARY OF MICHGIAN DIVORCE: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:
1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;
2. Defendant now works three days a week; and
3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.
Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]
HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE
Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]
WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT
In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]
NO CHANGE OF CIRCUMSTANCES
Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]
POOR PRESENTATION ON FATHERS PART
We observe that plaintiff has abandoned this issue on appeal by failing to properly brief
it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]
DIVORCED WITH FOUR CHILDREN
The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]
MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING
The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]
DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE
He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]
STEP MOMMY GROWING DEMANDS?
Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]
DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO
Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]
OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING
The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]
THIS SHOULD BE ABOUT THE CHILDREN
Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]
DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM
His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]
It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]
Posted 5/11/2010
By Terry Bankert
http://attorneybankert.com
See:
[1], from e-journal
Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM
e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher
[CAPITALIZATIONS and trb are Terry Bankerts comments]
[2] See [1] from the case
[3]
Michigan Family Law Benchbook
[4]
http://celebs.gather.com/viewArticle.action?articleId=281474978227525
Saturday, May 1, 2010
Parenting time adult children
I pay child support, the child is an adult. Do I get parenting time?
http://terrybankert.blogspot.com
http://terrybankert.blogspot.com
Monday, April 26, 2010
In Flint MI divorce court, nobody has a right to hit you.
FLINT DIVORCE LAWYER BANKERT COMMENTS ON KIM KARDASHIAN AND DOMESTIC VIOLENCE. POINT OF VIEW:IF THIS HAPPENED IN MICHIGAN.
4/26/2010
Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.
DOMESTIC VIOLENCE
New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]
DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.
Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.
NO POLICE CALLS, NO PPO
Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]
In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s 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 fear of violence.
CONTROLLING
The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]
During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]
DOMINATING
"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]
THEATS OF VIOLENCE TO HER FAMILY
"He threatened to kill me, my family members and the guys that I am dating."
But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]
INDICATORS OF DOMESTIC VIOLENCE
Domestic violence is a pattern of behavior whose purpose is 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.
Domestic Violence is not limited 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.
SHOULD SHE HAVE SOUGHT A PPO?
Nobody has a right to hit you. But you have to act. A PPO is one way.
PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.
WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?
What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.
(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.
(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
MCL 600.2950(1).
SHORT TERM MARRAIGE
The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]
Posted here by
Terry Bankert
WWW.ATTORNEYBANKERT.COM
SEE
[1]
http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338
[2]
http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx
[3]
http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/
[4]
http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1
4/26/2010
Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.
DOMESTIC VIOLENCE
New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]
DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.
Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.
NO POLICE CALLS, NO PPO
Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]
In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s 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 fear of violence.
CONTROLLING
The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]
During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]
DOMINATING
"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]
THEATS OF VIOLENCE TO HER FAMILY
"He threatened to kill me, my family members and the guys that I am dating."
But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]
INDICATORS OF DOMESTIC VIOLENCE
Domestic violence is a pattern of behavior whose purpose is 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.
Domestic Violence is not limited 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.
SHOULD SHE HAVE SOUGHT A PPO?
Nobody has a right to hit you. But you have to act. A PPO is one way.
PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.
WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?
What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.
(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.
(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
MCL 600.2950(1).
SHORT TERM MARRAIGE
The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]
Posted here by
Terry Bankert
WWW.ATTORNEYBANKERT.COM
SEE
[1]
http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338
[2]
http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx
[3]
http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/
[4]
http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1
Tuesday, April 20, 2010
Michigan Family Law update 4/20/10
4/20/10 ICLE Plymouth
9 am 2010 Marital Property Update
1:30 2010 Child Custody, Support & Parenting time update
Blog
See
http://michigandivorce.blogspot.com/
Update through out the day...4/20/10
CASE LAW UPDATE
9:51-
Bankruptcy Court will defer to State Court on non dischargable in BKY
In re: Lewis vs Lewis __BR__, 2010 Wl, 724117 [BKY WD Mich 2010] Case No GG 09-03818, Adv Proc NO 09-80321, decided 2/24/2010
DISCOVERY
Trigger recollection of marital financial information from client.
Look to the needs of both parties. We tend to look at the one with the most money as having tons of disposable income, they do not. This assumption will go away as women make more money because they will not stand for it.
10:00
Inital client meeting 1-1.5 hour...to have a sense of where truth lies..have client do discovery before case filed...start with a working meeting, run guidelines at intake meeting, find the appraisals that may disappear after you file, .....identify all the assets that may disappear...
Q: is the health care award from a self insured business..
Q; get the saftey deposit box key
Q: Is there pending litigation?
Q: Look at the tax returns, look at the schedules and W2...
10:13
-Put your client to work with self help
Q: does the boat have a motor on it..
Q; get releases for health
-have client get CreditCard records etc....
GET WAIVER OF DISCOVER IF CLIENT WANTS NONE
Q: is a serioulsy abused wife signs discovery waiver is it valid? May not be
10:17
Lec- prefers subp. over interrogatory..create a bank of addendum..focused
10:20
find out what you do not know...and do not assume you are being told the truth
10:21
number your douments, look at the records in Dr file if number different get rest. Lec: I have never gotten the complete file from a DR,
10:23
Draft early JOd, for focus and to organize discovery...trb- start where you want to end..
number all documents...for use at deposition...
categorical index for all trial material
spread sheet on excel
10:27
all records paper huge stack
get electronic...get accounting disk..reasonbably cost effective...cannot have propriety software...? no thoughts on how to survive challenge
Break
10:40
use credit reports, It is contray to federal law to run the credit report of your opposing party but not yours...
10:46
Proving Property Claims
Michigan is an equitable division State; CT has to make a clear finding...see SPARKS
determine valuation date...
agree, or get order...
cannot be a future happening event...no projections..has to value as during the marraige not after...
burden on thge one that wants part, existence and value...present value of future medical benefits...big issue...
10:53
What are things worth
experts, p[arty testimony, internet sites...cost sale, tax , appraisal..wiull tax be incurred, capitol gains...
APRAISING PERSONAL PROPERTY
peer
american society of appraisers
real estate appraisers
unique values
coins...ask client who would client trust
..
comparative mk analysis is an opinion 1. set listing, offering or rental rate and they cannot charge with a ledgend this is not an appraisal...get appraisal $300 +
...
business valuation approaches
sales..most used
income
cost
retirement
defined benifit plan , being used less,is it being supervised by the government?
taxes not paid?
defined contribution plan
marital coveture
length of marriage/number of years of credited service
advance degree is not an asset
It is a planned sacrific..
subjective
decline in standard of living during schooling years and what was given up...contribution to living expenses and other person giving up relying of benefit after school of other....
see
Postema v Postema 189 Mich App 89, 1991
Busniss must be valued by the court... Steckley..185 MA 19, 1990
current value within the range of proof...yours high theirs low judge cannot go in between...current value not the invested
59-60 Revenue ruling
five step introduction of expert
distribution is fact driven....
Separate Property...acquired during...appreciation... invade [significant contribution, not fault, need, activevs passive, commingling,
premarital
inherited
gifted...wedding ring
pain and suffering[economic vs pain and suffering...verfy order break this out you may have to look at record...if it is not allocated it may all come in]
note
[the wifes presents are hers]
11:29
technology in property issues...
get on list serve..........
Its all about self help
send your client a wish list of documents to bring to the first interview
cl can download a free credit report at the office
have the tax returns
go to irs.gov.. get your own or client can get thei tax return...fill out form go on line and the irs will send it to their.... lawyer,,,!!!!
get tax return as an image long ,,,or quick irs will send you the entries
sites for finding people and assets
PEOPLE
GOOGLE
WITNESS TRACKER
KNOWX...help to find info about put in name + infpor about property and judgements etc...look up you own client www.knox.com
SECRETARY OF STATE VEHICAL INFORMATION GET ACCOUNT THEY WILL BILL PUBLIC INFORMATION
CRIMINAL RECORDS
ASSETS
WESTLAW..BEST ASSET LOCATORS, VERIFY ADDRESS, JURIDICTIONAL TIES, MOTOR VEHICLES, REGISRTRATION TO VOTE, OWN PROPERTY
ACCURNET
GOVERNMENT, SECSTATE, COUNTY, CITY, PROFESSIONAL LIC SITE
LICENSED
hard to find
medical www.dleg.state.mi.us
criminal background checks
www.peoplerecords.com
www.state.mi.us/mdoc/asp/otis2.html
www.bop.gov
get good stuff by paying for it
REALESTATE
timeshares... www.redweek.com/browse/timeshares
what are the sales going for...www.zillow.com transfers of ownership
- ownership interest
-multip listing
cl say they got zillow and know...well its not right ... garbage in garbage out will not pass Daubert...you have got to go it right..not here..no fine tuning
401 k not tax penalty lower and no penalty if transferred to spouse
excell can do graph
kELLY BLUE BOOK
WWW.KBB.COM
CRAIGE LKIST, EBAY FOR VALUES
AIRCRAFT
WWW.AOPA.ORG
fishiug stuff
http://tinyurl.com
sporting goods
www.instantsportsappraisals.com
convert excell program to convert portions of pdf into work processing ..purchase program
household tools go to craids list...their tool appraisers
google
aba tech show 2010...google
Q: how to introduce internet evidence
craigs list
case--tested admissability of the child support formula craig ross..starting ...information on program is not hearsay....obect if not hearsay then Daubert test...reliability?
do a request to admit it is worth..
get att fees for atty if admit...
why is craigs list print out not hearsay
cs guidelaws...mathematical formula replicatable reliable result...based on data in...
getting marital computer stuff
infidelity emails
lots of caselaw...a family owned computer is not private..you cannot put tracking programs on someone elses but you can put it on you own...
negative equity on marital home
wife gets the negastive number...give other party the same amount of debt...husband wants to just walk away
lec;debts are promise to pay...
date of separation or date of filing..discretionary for court, why delay did a party benifit...
adjust depriciated book value of business assets
WHAT IS AVAILABLE
get infor on computer equip
facebook
myspace
court rules require this infor to be dumped before filing..HW
end 12:30
1:43
recent case law changes in statute
the criteria and cost is being developed
The Office of the Friend of the Court [foc]can charge your client for an foc investigation if your client asked for it
CUSTODY
burden
parent and thired presume parent
but ct will not change custodial unless in best interest...
custodial environment is now lesser to parental preference...unless clear and convincing evidence
discovery privilage...if you protect your client may not introduce evidence that is related...see Najt
Fujimarked...the trial court mustr create a record & minor child writings and pictures of the minor child are hearsay..
Primer on privilage in family law...lopez-negrette genesee case 5/26/09 unpublished h app 395[underlying case
Vanderark married birth mom had boy friends child husband denied parentage re: 3 prong test
ESTABLISHED CUSTODIAL ENVIRONMENT
BALLO...custodial environment CAN EXIST WITH BOTH PARENTS IN THE differend
HOUSE...
Basa ent cus envirnment can be created by the temporary order.it does not matter what the written paper work says
Salaka..day to day care does not creat sole custodial environment
CIRCUMSTANCES OF CHANGE NOT MET
geographical move is not enough
Pierron ...mom moved detroit to howell less than 60 miles...changhe school...when we ahve hearin joint and school this is a lombardo hearing nand the court must hold.
but joint legal the BI must be focused on the issue before the court. When talking about school district the testimony must be on the school not whole BI
rousch? move may bring in school and other issue but move alone not enough
BONNER..dad interfere
Greenlee...no litmus test
HallTO that was not temp 5 yr...mom had got off alcohol...the addiction was a change for mom not children..aregued straub..temp good for kids not pubnished...
Prisk...mom move...remarried...kids did not like step dasd ...not enough
did meet test
bad behavior by parent
cps complaint
crain...mom two frivioulos cps and alienated the chidl granted to dad
macheta ...mom unstable living with boy friend move in move out met the standard...
BEST INTEREST FACTORS
gERMAN REQUIRE TO RECORD INCAMERS...COURT NOT REQUIRED TO CREATE RECORD..
hOVE...FACTOR b...DAD FULL TIME WORK SCHEDDULE CONSISTENCE AND RELIABILITY TO THE CHILDREN...MOM PUT SOCIAL LIFE OVER CHILDREN...MOM MADE NEGATIVE COMMENTS ABOUT DAD...
Husen case..you do not have expert testimy for mental issue
Rouguska...trial court not held to stipulated mediated agreement...mom said dad lied in mediation mom had PPO against dad...trial court has an indepoendant duty.
Salatka-its the quality of time not the quantity of time to show move love and affection husband ex wife testified on behalf of father husband
...
Schuiteboer-- trial cpourt not required to follow expert recommendation
child [refeence is illustrative of alienation....?
legal custody
Lopez-negrete and modreske parents anger makes it impossible to cooperate
UCCJEA
DEKINDERN.. if no other satte or they decline mi can take jurisdiction
mom and child never resided in mi...provision suggesting the two courts talk...no record...judges can talk,... signs dad got ex parte judges talked miu dismissed its order
Parenting time
Porter...mom refused out state parenting time to dad...explains criminal mand civil contempt...
change with conditions if specifically state held?
mom moved before getting courts permission mom told to come back and mdad got astty fees
CHILD SUPPORT
HAVREY..FAILURE TO DISCLOSE TO INFOR FOC OF THEIR WAGES
SPOUSAL SUPPORT
CESNICK vol re from form moved out state to gf...spousal support based oin full income
ned required staplem language in spousal support GOLDBERG
YOUNG WIFE COULD TES ABOUT BACK INJURY AND IMPACT..NO EXPERT ON INABILITY TO WORK..LAY WIT COURT TESTIFY AS TO WHAT THEY OBSERVED.
2:27
2:32
ELECTRONIC DISCOVERY
The treasure trove of face book, my space, tweet...
trip to mexico
new car
pictures of boy frien
advise client what to do with social networkinf site
1. becareful whatn you post, the reciepient pass it around..
2.change your passwords that pour spouse does not know.. do not use the name of your new boy friend or girl friend
3.check you privacy settings..face book makes radicaln changes
4.be honest with lawyer
5.know your friends ne casrful of any request you do not recognize after you file for divorce..be wary of hackers..
6.do not hack into your spouse acct violation of federal and stae law..
Can third party become a face book friend
A: pitts= no ehtic committee said inheritanly decietful
How do we get this information unles client give it to you
its near impossible to get from facebook
no success heard fom the room
stored communication act--social media restricted
evolving area of law...anticipated to get harder
ebay and pay pal will respond to your subpoena
no right to privacy for what we post
marino postin g on myspace that poster waived all proivacy rights
What happen when you get the postings.
ESI
electronically storded information
90 %b of all information not printed
goines unpublished
incorect exclusion of myspace page
Lorraine v markel American Ins
judge grimm
4 hurdles you have to cross to admit
1.relevancy
H having affair, saved video on lap top found deleted, relevant
2.authentication
is it trustworth,is it what it is claimed to be
HOW- lay a foundation can use hearsay or other inadmissable, test wit [how the item was created or preserved personal or routine], circumstantial
GOINS CASE 1/21/10 UNPUBLISHED..my space admissable...appearence content distinctive characteristics..
excell sheet...wife as a lay expert or expert...w knows he used excell, she saw hime, nobody else uses it...
email and circumstantial..sender address use of reply function, meta data.daet tiem id creater etc...
self authentication-ownership control or origin...business records wirth written cetification by custodian...
one court has 11 step foundation
request to admit...include the thing as an exhibit...if denied and was can be sanction...reques stipulation
hearsay and exceptions
said by other than a party to win statement person and
electronic is not a person...it is not hearsya there is no poersonnand no statement
3.hearsay and exception
meta date no hearsay, fax not hearsay, not hearsay if not submitted to provce the truth of the matter
email- statement to show relation ship or state of mind are not heasrsay, videos are not hearsay
CASE STUDY TEXT MESSAGE
objcection they cannot be authenticated
pros wants message in
what is the foundation
there are lots of texts
how to authenticate
without extrinsic...is there a certification by custodian ie skytell this guy was qualified as expert
what evidence can be used...
1.look at the content of the message
2.look at the other text messages
3.other facts
4.look at hard ware
5.meta data
see Champion v Champion 368 Mich 84 (1962)
4.best evidence rule
3:29
CHILD SUPPORT
What does it pay for....
Michgian Child support formula is based upon the concept of the marginal cost of children in a family.The payer is expectd to only feed the child when under that parents control.
now
2008 parenting time offset
mofre overnight more cost to the paying parent and child support goes down from 1st overnight on. It used to only occure at 128
Now what if child asks for more...now we have a parenting time offset...should extra costs be paid by both...
sportrs, music lessons , summer camp etc....
In general the more time the children spend with the payer the larger the discount on child support and the greater the extent to which the payer should share expenses.If the parent payer with a lot of parenting time but not contributing to expenditures may provide grounds for the court deviating from the schedule.
CONTRACTUAL LIMITATIONS ON CHILD SUPPPORT
Laffin...parents cannot bargain away a child right to child support. Here dad give mother the house in place of any child support. Mich Ap said no...280 Mich App 513 (2008)here dad was to get offsetting alimony if mom got increase in child support...
CHILD SUPPORT IN HIGH INCOME
no cases...
3:59
COLLECTION OF CHILD SUPPORT AND ENFORCEMENT MECHANISMS
Dischargability
domestic support, in the nature of support, true support is non dischargable...some are not clean, " he shall contribute to CC] this is federal law...
IN THE NATURE OF SUPPORT
Do not look at title, look to the nature of the obligation
exceptions
if bky started during the divorce you are settling proiperty wioth the bky trustess..
child support
spousal support
domestice support obligations get paid first in bankruptcy
do not file a ,motion in state court to determine dischargability of bank stay
ch 7= liquidifation
ch 13= ability to pay
median income of your cpounty based onm IRS guideleines
above media = means test
above means file ch 13 pay something
CH 13 PLAN
3 - 5yr payment of all priority claim
student loans non dischargabile
plan controls
if arrearage understated you cannot collect
every lien must be recorded to cause it to be a perfected lien in case of a bankruptcy filing. If the divorce judgement is not recorded then it is just an unsecured debt...
lein on business, no UCC or recorded judgement..
leins on cars and boats are doe with the secretary of state...
IN A DIVORCE YOUR ARE DIVIDING A BUSINESS PARTNERSHIP
DAD GET HOUSE MOM GETS A Lien DAD SELLS THE HOUSE MOM OUT OF LUCK.
CONSTRUCTIVE TRUST
equitable remedy to prevent fraud or injustice
title that one hold but has no equitable interest the bky court has no intrest...if you are concerned about assets being held and ;possible bankruptcy...
record your judgement
9 am 2010 Marital Property Update
1:30 2010 Child Custody, Support & Parenting time update
Blog
See
http://michigandivorce.blogspot.com/
Update through out the day...4/20/10
CASE LAW UPDATE
9:51-
Bankruptcy Court will defer to State Court on non dischargable in BKY
In re: Lewis vs Lewis __BR__, 2010 Wl, 724117 [BKY WD Mich 2010] Case No GG 09-03818, Adv Proc NO 09-80321, decided 2/24/2010
DISCOVERY
Trigger recollection of marital financial information from client.
Look to the needs of both parties. We tend to look at the one with the most money as having tons of disposable income, they do not. This assumption will go away as women make more money because they will not stand for it.
10:00
Inital client meeting 1-1.5 hour...to have a sense of where truth lies..have client do discovery before case filed...start with a working meeting, run guidelines at intake meeting, find the appraisals that may disappear after you file, .....identify all the assets that may disappear...
Q: is the health care award from a self insured business..
Q; get the saftey deposit box key
Q: Is there pending litigation?
Q: Look at the tax returns, look at the schedules and W2...
10:13
-Put your client to work with self help
Q: does the boat have a motor on it..
Q; get releases for health
-have client get CreditCard records etc....
GET WAIVER OF DISCOVER IF CLIENT WANTS NONE
Q: is a serioulsy abused wife signs discovery waiver is it valid? May not be
10:17
Lec- prefers subp. over interrogatory..create a bank of addendum..focused
10:20
find out what you do not know...and do not assume you are being told the truth
10:21
number your douments, look at the records in Dr file if number different get rest. Lec: I have never gotten the complete file from a DR,
10:23
Draft early JOd, for focus and to organize discovery...trb- start where you want to end..
number all documents...for use at deposition...
categorical index for all trial material
spread sheet on excel
10:27
all records paper huge stack
get electronic...get accounting disk..reasonbably cost effective...cannot have propriety software...? no thoughts on how to survive challenge
Break
10:40
use credit reports, It is contray to federal law to run the credit report of your opposing party but not yours...
10:46
Proving Property Claims
Michigan is an equitable division State; CT has to make a clear finding...see SPARKS
determine valuation date...
agree, or get order...
cannot be a future happening event...no projections..has to value as during the marraige not after...
burden on thge one that wants part, existence and value...present value of future medical benefits...big issue...
10:53
What are things worth
experts, p[arty testimony, internet sites...cost sale, tax , appraisal..wiull tax be incurred, capitol gains...
APRAISING PERSONAL PROPERTY
peer
american society of appraisers
real estate appraisers
unique values
coins...ask client who would client trust
..
comparative mk analysis is an opinion 1. set listing, offering or rental rate and they cannot charge with a ledgend this is not an appraisal...get appraisal $300 +
...
business valuation approaches
sales..most used
income
cost
retirement
defined benifit plan , being used less,is it being supervised by the government?
taxes not paid?
defined contribution plan
marital coveture
length of marriage/number of years of credited service
advance degree is not an asset
It is a planned sacrific..
subjective
decline in standard of living during schooling years and what was given up...contribution to living expenses and other person giving up relying of benefit after school of other....
see
Postema v Postema 189 Mich App 89, 1991
Busniss must be valued by the court... Steckley..185 MA 19, 1990
current value within the range of proof...yours high theirs low judge cannot go in between...current value not the invested
59-60 Revenue ruling
five step introduction of expert
distribution is fact driven....
Separate Property...acquired during...appreciation... invade [significant contribution, not fault, need, activevs passive, commingling,
premarital
inherited
gifted...wedding ring
pain and suffering[economic vs pain and suffering...verfy order break this out you may have to look at record...if it is not allocated it may all come in]
note
[the wifes presents are hers]
11:29
technology in property issues...
get on list serve..........
Its all about self help
send your client a wish list of documents to bring to the first interview
cl can download a free credit report at the office
have the tax returns
go to irs.gov.. get your own or client can get thei tax return...fill out form go on line and the irs will send it to their.... lawyer,,,!!!!
get tax return as an image long ,,,or quick irs will send you the entries
sites for finding people and assets
PEOPLE
WITNESS TRACKER
KNOWX...help to find info about put in name + infpor about property and judgements etc...look up you own client www.knox.com
SECRETARY OF STATE VEHICAL INFORMATION GET ACCOUNT THEY WILL BILL PUBLIC INFORMATION
CRIMINAL RECORDS
ASSETS
WESTLAW..BEST ASSET LOCATORS, VERIFY ADDRESS, JURIDICTIONAL TIES, MOTOR VEHICLES, REGISRTRATION TO VOTE, OWN PROPERTY
ACCURNET
GOVERNMENT, SECSTATE, COUNTY, CITY, PROFESSIONAL LIC SITE
LICENSED
hard to find
medical www.dleg.state.mi.us
criminal background checks
www.peoplerecords.com
www.state.mi.us/mdoc/asp/otis2.html
www.bop.gov
get good stuff by paying for it
REALESTATE
timeshares... www.redweek.com/browse/timeshares
what are the sales going for...www.zillow.com transfers of ownership
- ownership interest
-multip listing
cl say they got zillow and know...well its not right ... garbage in garbage out will not pass Daubert...you have got to go it right..not here..no fine tuning
401 k not tax penalty lower and no penalty if transferred to spouse
excell can do graph
kELLY BLUE BOOK
WWW.KBB.COM
CRAIGE LKIST, EBAY FOR VALUES
AIRCRAFT
WWW.AOPA.ORG
fishiug stuff
http://tinyurl.com
sporting goods
www.instantsportsappraisals.com
convert excell program to convert portions of pdf into work processing ..purchase program
household tools go to craids list...their tool appraisers
aba tech show 2010...google
Q: how to introduce internet evidence
craigs list
case--tested admissability of the child support formula craig ross..starting ...information on program is not hearsay....obect if not hearsay then Daubert test...reliability?
do a request to admit it is worth..
get att fees for atty if admit...
why is craigs list print out not hearsay
cs guidelaws...mathematical formula replicatable reliable result...based on data in...
getting marital computer stuff
infidelity emails
lots of caselaw...a family owned computer is not private..you cannot put tracking programs on someone elses but you can put it on you own...
negative equity on marital home
wife gets the negastive number...give other party the same amount of debt...husband wants to just walk away
lec;debts are promise to pay...
date of separation or date of filing..discretionary for court, why delay did a party benifit...
adjust depriciated book value of business assets
WHAT IS AVAILABLE
get infor on computer equip
myspace
court rules require this infor to be dumped before filing..HW
end 12:30
1:43
recent case law changes in statute
the criteria and cost is being developed
The Office of the Friend of the Court [foc]can charge your client for an foc investigation if your client asked for it
CUSTODY
burden
parent and thired presume parent
but ct will not change custodial unless in best interest...
custodial environment is now lesser to parental preference...unless clear and convincing evidence
discovery privilage...if you protect your client may not introduce evidence that is related...see Najt
Fujimarked...the trial court mustr create a record & minor child writings and pictures of the minor child are hearsay..
Primer on privilage in family law...lopez-negrette genesee case 5/26/09 unpublished h app 395[underlying case
Vanderark married birth mom had boy friends child husband denied parentage re: 3 prong test
ESTABLISHED CUSTODIAL ENVIRONMENT
BALLO...custodial environment CAN EXIST WITH BOTH PARENTS IN THE differend
HOUSE...
Basa ent cus envirnment can be created by the temporary order.it does not matter what the written paper work says
Salaka..day to day care does not creat sole custodial environment
CIRCUMSTANCES OF CHANGE NOT MET
geographical move is not enough
Pierron ...mom moved detroit to howell less than 60 miles...changhe school...when we ahve hearin joint and school this is a lombardo hearing nand the court must hold.
but joint legal the BI must be focused on the issue before the court. When talking about school district the testimony must be on the school not whole BI
rousch? move may bring in school and other issue but move alone not enough
BONNER..dad interfere
Greenlee...no litmus test
HallTO that was not temp 5 yr...mom had got off alcohol...the addiction was a change for mom not children..aregued straub..temp good for kids not pubnished...
Prisk...mom move...remarried...kids did not like step dasd ...not enough
did meet test
bad behavior by parent
cps complaint
crain...mom two frivioulos cps and alienated the chidl granted to dad
macheta ...mom unstable living with boy friend move in move out met the standard...
BEST INTEREST FACTORS
gERMAN REQUIRE TO RECORD INCAMERS...COURT NOT REQUIRED TO CREATE RECORD..
hOVE...FACTOR b...DAD FULL TIME WORK SCHEDDULE CONSISTENCE AND RELIABILITY TO THE CHILDREN...MOM PUT SOCIAL LIFE OVER CHILDREN...MOM MADE NEGATIVE COMMENTS ABOUT DAD...
Husen case..you do not have expert testimy for mental issue
Rouguska...trial court not held to stipulated mediated agreement...mom said dad lied in mediation mom had PPO against dad...trial court has an indepoendant duty.
Salatka-its the quality of time not the quantity of time to show move love and affection husband ex wife testified on behalf of father husband
...
Schuiteboer-- trial cpourt not required to follow expert recommendation
child [refeence is illustrative of alienation....?
legal custody
Lopez-negrete and modreske parents anger makes it impossible to cooperate
UCCJEA
DEKINDERN.. if no other satte or they decline mi can take jurisdiction
mom and child never resided in mi...provision suggesting the two courts talk...no record...judges can talk,... signs dad got ex parte judges talked miu dismissed its order
Parenting time
Porter...mom refused out state parenting time to dad...explains criminal mand civil contempt...
change with conditions if specifically state held?
mom moved before getting courts permission mom told to come back and mdad got astty fees
CHILD SUPPORT
HAVREY..FAILURE TO DISCLOSE TO INFOR FOC OF THEIR WAGES
SPOUSAL SUPPORT
CESNICK vol re from form moved out state to gf...spousal support based oin full income
ned required staplem language in spousal support GOLDBERG
YOUNG WIFE COULD TES ABOUT BACK INJURY AND IMPACT..NO EXPERT ON INABILITY TO WORK..LAY WIT COURT TESTIFY AS TO WHAT THEY OBSERVED.
2:27
2:32
ELECTRONIC DISCOVERY
The treasure trove of face book, my space, tweet...
trip to mexico
new car
pictures of boy frien
advise client what to do with social networkinf site
1. becareful whatn you post, the reciepient pass it around..
2.change your passwords that pour spouse does not know.. do not use the name of your new boy friend or girl friend
3.check you privacy settings..face book makes radicaln changes
4.be honest with lawyer
5.know your friends ne casrful of any request you do not recognize after you file for divorce..be wary of hackers..
6.do not hack into your spouse acct violation of federal and stae law..
Can third party become a face book friend
A: pitts= no ehtic committee said inheritanly decietful
How do we get this information unles client give it to you
its near impossible to get from facebook
no success heard fom the room
stored communication act--social media restricted
evolving area of law...anticipated to get harder
ebay and pay pal will respond to your subpoena
no right to privacy for what we post
marino postin g on myspace that poster waived all proivacy rights
What happen when you get the postings.
ESI
electronically storded information
90 %b of all information not printed
goines unpublished
incorect exclusion of myspace page
Lorraine v markel American Ins
judge grimm
4 hurdles you have to cross to admit
1.relevancy
H having affair, saved video on lap top found deleted, relevant
2.authentication
is it trustworth,is it what it is claimed to be
HOW- lay a foundation can use hearsay or other inadmissable, test wit [how the item was created or preserved personal or routine], circumstantial
GOINS CASE 1/21/10 UNPUBLISHED..my space admissable...appearence content distinctive characteristics..
excell sheet...wife as a lay expert or expert...w knows he used excell, she saw hime, nobody else uses it...
email and circumstantial..sender address use of reply function, meta data.daet tiem id creater etc...
self authentication-ownership control or origin...business records wirth written cetification by custodian...
one court has 11 step foundation
request to admit...include the thing as an exhibit...if denied and was can be sanction...reques stipulation
hearsay and exceptions
said by other than a party to win statement person and
electronic is not a person...it is not hearsya there is no poersonnand no statement
3.hearsay and exception
meta date no hearsay, fax not hearsay, not hearsay if not submitted to provce the truth of the matter
email- statement to show relation ship or state of mind are not heasrsay, videos are not hearsay
CASE STUDY TEXT MESSAGE
objcection they cannot be authenticated
pros wants message in
what is the foundation
there are lots of texts
how to authenticate
without extrinsic...is there a certification by custodian ie skytell this guy was qualified as expert
what evidence can be used...
1.look at the content of the message
2.look at the other text messages
3.other facts
4.look at hard ware
5.meta data
see Champion v Champion 368 Mich 84 (1962)
4.best evidence rule
3:29
CHILD SUPPORT
What does it pay for....
Michgian Child support formula is based upon the concept of the marginal cost of children in a family.The payer is expectd to only feed the child when under that parents control.
now
2008 parenting time offset
mofre overnight more cost to the paying parent and child support goes down from 1st overnight on. It used to only occure at 128
Now what if child asks for more...now we have a parenting time offset...should extra costs be paid by both...
sportrs, music lessons , summer camp etc....
In general the more time the children spend with the payer the larger the discount on child support and the greater the extent to which the payer should share expenses.If the parent payer with a lot of parenting time but not contributing to expenditures may provide grounds for the court deviating from the schedule.
CONTRACTUAL LIMITATIONS ON CHILD SUPPPORT
Laffin...parents cannot bargain away a child right to child support. Here dad give mother the house in place of any child support. Mich Ap said no...280 Mich App 513 (2008)here dad was to get offsetting alimony if mom got increase in child support...
CHILD SUPPORT IN HIGH INCOME
no cases...
3:59
COLLECTION OF CHILD SUPPORT AND ENFORCEMENT MECHANISMS
Dischargability
domestic support, in the nature of support, true support is non dischargable...some are not clean, " he shall contribute to CC] this is federal law...
IN THE NATURE OF SUPPORT
Do not look at title, look to the nature of the obligation
exceptions
if bky started during the divorce you are settling proiperty wioth the bky trustess..
child support
spousal support
domestice support obligations get paid first in bankruptcy
do not file a ,motion in state court to determine dischargability of bank stay
ch 7= liquidifation
ch 13= ability to pay
median income of your cpounty based onm IRS guideleines
above media = means test
above means file ch 13 pay something
CH 13 PLAN
3 - 5yr payment of all priority claim
student loans non dischargabile
plan controls
if arrearage understated you cannot collect
every lien must be recorded to cause it to be a perfected lien in case of a bankruptcy filing. If the divorce judgement is not recorded then it is just an unsecured debt...
lein on business, no UCC or recorded judgement..
leins on cars and boats are doe with the secretary of state...
IN A DIVORCE YOUR ARE DIVIDING A BUSINESS PARTNERSHIP
DAD GET HOUSE MOM GETS A Lien DAD SELLS THE HOUSE MOM OUT OF LUCK.
CONSTRUCTIVE TRUST
equitable remedy to prevent fraud or injustice
title that one hold but has no equitable interest the bky court has no intrest...if you are concerned about assets being held and ;possible bankruptcy...
record your judgement
Saturday, April 3, 2010
Divorce process, divorce petition and the famous.
Flint Divorce attorney comments.
Lawyer advice on the issues of the "Carrere Divorce".
Divorce law and procedure if it was filed in Michigan.
FILING FOR DIVORCE
Wayne's World star Tia Carrere has filed for divorce to end her seven-year marriage.
Grounds for divorce in Michigan. What divorce paperwork was necessary?
“[T]here has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.”
In Michigan divorce procedure if she had filed here Tia Carrer may not include any other explanation of the grounds in the complaint. Here we are talking about filing for divorce. Her Husband Simon Wakelin could then admit or deny the grounds. The court may consider an admission but is not bound by it in its final deliberation.
The initial Michigan and Flint divorce documents in cases without children would be a summons, a complaint, filing fees, and a record of divorce or annulment (some counties require filing at the time of entry of the judgment).This will not be a cheap divorce.
If Carrere and Wakelin had minor children or a request for spousal support, a verified statement must be served on the other party and provided to the Friend of the Court. She did not have to state many reasons for the divorce. The initial filing for a divorce with minor children must also include information about custody proceedings and the names and birth dates of the minor children.
When getting a divorce in Michigan and Flint the Divorce petition or complaint must include the following:
The statutory grounds for divorce, without further explanation.
The parties’ complete names and their names before marriage.
Residency information.
Whether a party is pregnant.
The required case caption language .
Whether there are minor children of the parties or minor children born during the marriage.
The complete names and birth dates of any minors involved in the action, including minor children of the parties and all children born during the marriage.
Whether there is property to be divided.
If a request for protection of property is made, facts sufficient to support the relief requested.
If spousal support is requested, a showing of the need for support and the other party’s ability to pay.
If there are minors or a request for child support, whether any Michigan court has continuing jurisdiction over the minor and, if so, the court and file number.
Children and divorce create additional requirements. If custody of a minor is to be determined, the following must be included in the complaint or in an attached affidavit: (1) the child’s present address, (2) places where the child has lived within the last five years, (3) names and present addresses of persons with whom the child has lived during that period, (4) whether the party has participated in other litigation concerning the custody of the child in Michigan or elsewhere, (5) whether the party knows of a proceeding that could affect the current child custody proceeding, and (6) whether the party knows of a person who is not a party to the proceedings who has physical custody of the child or claims custody or parenting time rights.
Filing fees may be waived. Fees and costs must be waived or suspended for persons receiving public assistance and indigent persons. The judge may hold a hearing to determine if the person is indigent.
LONG OR SHORT TERM MARRIAGE. HE MAY THINK ITS CHEAPER TO KEEPER.NO MATTER TO HER SHE IS GETTING A DIVORCE.
In a Michigan and Flint contested Divorce , spousal support is a useful tool, especially when the attorney is representing a spouse in a long-term marraige or where there is a substantial disparity in income between the spouses. When a Flint divorce terminates a long-term marraige spousal support is used in its traditional sense as support and maintenance of a former spouse who is unable to support himself or herself at a comparable standard of living due to years of financial dependence. The longer the marraigethe older the recipient; the less able the recipient is to support himself or herself due to lack of education, job skills, or on-the-job experience; the more likely spousal support is to be awarded.
NO FAULT NON FOWL
The actress filed papers in Los Angeles on Friday, citing irreconcilable differences for the split. [1] She is wondering what conditition her condition is in.
Most in Divorce have heard of no-fault divorce. The phrase no-fault divorce means it is not necessary to prove fault by a party—for example, infidelity or abuse—for a divorce to be granted. However, the court may consider fault in determining the distribution of property and in ruling on spousal support.
REPRESENT YOUR SELF
The Waynes world star 43 is acting as her own attorney.[2]
Many People in Michigan and flint Divorce represent themselves or appear in pro per.
Why:
Lack of funds to hire attorney
Distrust of attorneys
Inability to secure counsel as indigent due to lack of programs and/or
conflict where legal aid represents spouse
Stated intent to keep things “friendly” through divorce, etc.
Maximum preservation of marital assets for division (avoid attorney fees even if they can be afforded).
Failure to adequately understand pitfalls of self-representation
She wed photographer Simon Wakelin, her second husband, on New Year's Eve in 2002.
SOLE CUSTODY PHYSICAL AND LEGAL
Carrere is asking for sole custody of the couple's four-year-old daughter, Bianca. [1]
The term physical custody, as commonly used by the court, typically focuses on where the child resides. MCLA 722.26a(7)(a).
Legal custody is the authority to make important decisions regarding the welfare of the child. Wellman v. Wellman, 203 Mich App 277, 512 NW2d 68 (1994). Price v. Price, Westlaw 1609013, unreported, decided December 14, 2001
The court must make findings on this issue before deciding custody.
Statutory standard.
There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider
the age of the child,
the physical environment, and
the inclination of the custodian and the child as to the permanency of the relationship.
The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.
Determine burden of proof.
If there is an established custodial environment, a change of custody may be made only on clear and convincing evidence that the change is in the best interests of the child.
If no established custodial environment exists, custody may be changed on showing by a preponderance of the evidence that the custodial arrangement is in the best interests of the child.
Effect of certain facts.
Prior custody orders—mere existence does not create an established custodial environment.
Custodial parent voluntarily relinquishes custody—all factors must be examined to determine if a new custodial environment is created. Public policy encourages a parent with difficulties to temporarily relinquish custody to resolve his or her problems.
In prejudgment cases where the parties are residing together, the judge makes the determination on a preponderance of the evidence.
The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.
The court must consider each factor and make findings on the record.
The factors need not have equal weight; the court determines the weight of each factor.
Factors.
(a) The love, affection, and other emotional ties existing between the parties involved and the child. This factor focuses on the emotional bond that already exists between the parent and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. This factor tries to project the parent’s ability to foster an emotional bond in the future, and the parent’s impact on such matters as education, guidance, and religious training.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes. This factor focuses solely on the permanence of the family environment, not the acceptability of the home or child care arrangements.
(f) The moral fitness of the parties involved. This factor evaluates the parties’ moral fitness only as it relates to how they will function as a parent and not as to who is the morally superior adult.
(g) The mental and physical health of the parties involved. This factor should not impair or defeat the public policy goal of integrating disabled persons into the mainstream of society.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. The court must take the preference of the child into account if it decides that the child is old enough to express a preference. The court is not required to disclose the child’s preference. The child’s preference does not automatically outweigh other factors; it is only one element used to make the determination.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
( l ) Any other factor considered by the court to be relevant to a particular child custody dispute. The court may not consider the race of a parent’s spouse in considering whether to change custody.
PRE NUPTIAL AGREEMENT
The couple have a pre nuptial agreement.[2]
In a Flint Divorce Court MCLA 557.28, MSA 26.165(8) provides that a contract that relates to property and that is made between persons in contemplation of marriage remains in full force after the marriage takes place.
The Michigan Supreme Court recognized, in the early case of Hockenberry v Donovan, 170 Mich 370, 136 NW 389 (1912), that marital agreements will be enforced if the parties to the agreement are mature and have a full understanding of the agreement and no fraud is involved. Marriage, as well as the waiver of property rights, constitutes sufficient consideration to support the contract. Id. at 380.
The leading Michigan case on marital agreements that govern the distribution of property at death is In re Estate of Benker, 416 Mich 681, 331 NW2d 193 (1982). In Benker, the court affirmed that such antenuptial agreements are generally favored by public policy. However, the court also noted that there must be a fair disclosure of assets by both parties for the agreement to be valid. The court said premarital agreements “give rise to a special duty of disclosure not required in ordinary contract relationships so that the parties will be fully informed before entering into such agreements.” Id. at 689
NOT THE FIRST TIME
The actress' first marriage to Elie Samaha also ended in divorce after seven years. She split from the producer in 2000.[1]
Posted here by
Terry R Bankert a Michigan/Flint Divorce lawyer
http://attorneybankert.com/
To Find your Michgian County Court House go to
http://dumpmyspouse.com/
see
[1]
http://jam.canoe.ca/Television/2010/04/03/13453311-wenn-story.html
[2]
http://www.people.com/people/article/0,,20357726,00.html?xid=rss-topheadlines
Subscribe to:
Posts (Atom)