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