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.

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

Parenting time adult children

I pay child support, the child is an adult. Do I get parenting time?


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