DO YOU WANT YOUR KIDS TO LIVE WITH YOU?

When you feel your children would be better of living with you rather than your ex spouse who has child custody what can you do? #childcustody

PROVE A PROPER CAUSE OR  CHANGE IN CIRCUMSTANCES

There are several important steps the first discussed here is a court determination that a” change of circumstances exists.”

Additional questions about change in custody can be found by contacting  Flint Divorce Attorney Terry R. Bankert 1000 Beach St. Flint MI 810-235-1970 or terry@attorneybankert.com #flintdivorce

A RECENT DENIAL OF A FATHER'S MOTION TO CHANGE CUSTODY

In a recent Michigan Court of Appeals Case, looking at Kent Circuit Court,LC No. 12-005913-DM case Defendant father  appeals as of right a May 13, 2014 order, with several other issues, denying his motion for change of custody in regard to the parties’ minor child,

TO DETERMINE CHANGE OF CIRCUMSTANCES REQUIRES IS WHAT IS COMMONLY CALLED A VODVARKA HEARING

In Child custody modification of a custody order the controlling state statute is; MCL 722.27(1)(c) while the controlling case law is Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “

When the Michigan Court of Appeals reviews a child custody modification of a County trial court decision, here ,Kent Circuit Court,LC No. 12-005913-DM,  to deny a motion for change in custody   it determines  whether the trial court's finding that there was no "change of circumstances" or "proper cause" was against the great weight of the evidence; MCL 722.28;[1]

The Michigan Court of Appeals recently  held that the trial court,Kent Circuit Court,LC No. 12-005913-DM,  did not err by denying the defendant-father's motion for change of custody of the parties' minor child.[1]

The Michigan Court of Appeals held that the trial court's, In the Kent case,  finding that there was no change of circumstances or proper cause to support a change in custody was not against the great weight of the evidence.[1]

"None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child's life or well-being.[1]

 HOW A CHANGE OF CUSTODY DECISION IS MADE. THE FIRST HURDLE .

A child custody award may only be modified after there has been “proper cause

shown or because of change of circumstances . . . .” MCL 722.27(1)(c). “[1]

The movant, the parent that wants a change,  of course has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists . . . .” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). “ [1]

Proper cause” sufficient to warrant revisiting a custody order “means one or

more appropriate grounds that have or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken.” Id. at 511.[1]

THE COURT LOOKS AT FACTS THAT HAVE CHANGED  SINCE THE ENTRY OF THE LAST ORDER  THAT ARE IMPORTANT OR MATERIAL TO THE CHILDS BEST INTEREST

To demonstrate a change of circumstances meriting consideration of a custody change, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially ]changed.” Id. at 513.  [1]

“[T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.” Id. at 513-514. [1]

In the Kent Circuit Court,LC No. 12-005913-DM case the court did not find the required change in circumstances

As stated above a child-custody award may only be modified after there has been “proper cause shown or because of change of circumstances . . . .” MCL 722.27(1)(c).  [2]

The purpose of the proper cause or change-of-circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003), [2]

None of the allegations raised by father demonstrated the type of circumstances that would have had a significant effect on the child’s life or well-being. See Vodvarka, 259 Mich App at 512-513.[1]

At most, father’s allegations amount to nothing more than normal life changes for the child or minor inconveniences to father in his attempts to interact with mother. See id. at 512-514.[1]

While it is true that “a stipulation by the parties regarding a matter of law is not binding

on a court,” see Staff v Johnson, 242 Mich App 521, 529; 619 NW2d 57 (2000),the Michigan Court of Appeals  cannot characterize the factually based change-of-circumstances issue as purely a “matter of law.” In Vodvarka, 259 Mich App at 512, the Court stated, “Often . . ., the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the

facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard.”[2]

In Washtenaw Circuit Court LC No. 13-001155-DC  the consent order did not reflect a clear temporary arrangement. Instead, it explicitly stated, “the parties stipulate that the parties minor child shall attend kindergarten in the State of Michigan until there is a determination of change of custody” (emphasis added).[2]

The parties stipulated on July 29, 2013, that there was, in fact, a change of circumstances, and the legal standard was satisfied. Vodvarka, 259 Mich App512.[2]

Under all the circumstances, the Michigan Court of Appeals  found “we conclude that the Washtenaw Circuit Court LC No. 13-001155-DC  ultimately erred in finding no change of circumstances sufficient to warrant a revisiting of the original custody order.[2]

If you have additional questions about change in custody please contact Flint Divorce Lawyer Terry R. Bankert 1000 Beach ST. Flint MI 810-235-1970 or terry@attorneybankert.com

Source [1]

STATE OF MICHIGAN COURT OF APPEALS,Before: M.J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.PER CURIAM.,UNPUBLISHED November 20, 2014

v No. 322082 Kent Circuit Court,LC No. 12-005913-DM

Source [2]

STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED November 18, 2014 v No. 320871

Washtenaw Circuit Court LC No. 13-001155-DC

e-Journal Number: 58667

IN DIVORCE THIS ADAM LOST TO EVE, WIFE GETS MORE PROPERTY.by FLINT DIVORCE ATTORNEY TERRY BANKERT

Flint Divorce Attorney Terry Bankert ,810-235-1970 discusses several Issues: 1.Divorce;


2.The defendant-husband's claim that the property division was inequitable; Pickering v. Pickering; Reed v. Reed;

3.The factors in Sparks v. Sparks; Berger v. Berger; Thames v. Thames;

4Infidelity; Davey v. Davey;

4Dissipation of martial assets; Woodington v. Shokoohi



SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),

Case Name: S----- v. S-----, Livingston Circuit Court, LC No. 08-003892-DO

e-Journal Number: 48129,Judge(s): Per Curiam - Murphy, Murray, and Shapiro,

[Comments of Flint Divorce Lawyer Terry Bankert ALL CAPS or trb]



YOU HAVE A RIGHT TO APPEAL THE DECISION OF YOUR LOCAL DIVORCE COURT



A trial court’s factual findings will not be reversed unless they are found

to be clearly erroneous, meaning that, this Court is left with a definite and firm conviction that a mistake has been made. Reed v Reed, 265 Mich App 131, 150; 693 NW2d 825 (2005).



GOOD LUCK IF YOU TRY

A trial court’s dispositional ruling should be affirmed unless this Court is left with the firm conviction that the property division was inequitable. Pickering, 268 Mich App at 7.



HIGH COURT DECISION



The Michigan Court of Appeals held, inter alia, that an unequal division of marital property is not contrary to Michigan law as long as it is based on the appropriate criteria, the trial court properly determined the situation (after a 38-year marriage) did not warrant a 50-50 property division based on the property division factors, and the trial court did not err in awarding the plaintiff-wife $150,000 in alimony in gross.

The LIVINGSTON DIVORCE trial court used its equitable powers to mold relief according to the nature of the case and did what was necessary to accord complete equity and to resolve the controversy. The MICHGIAN COURT OF APPEALS concluded that reversal was not warranted as to the division of property.

HOW DOES A COURT MAKE A PROPERTY DIVISION?

In dividing the marital property, the trial court’s opinion here addressed the property division

factors set forth in Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).

The Sparks Court stated:

We hold that the following factors are to be considered wherever they are

relevant to the circumstances of the particular case: (1) duration of the marriage,

(2) contributions of the parties to the marital estate, (3) age of the parties, (4)

health of the parties, (5) life status of the parties, (6) necessities and circumstances

of the parties, (7) earning abilities of the parties, (8) past relations and conduct of

the parties, and (9) general principles of equity. There may even be additional

factors that are relevant to a particular case. For example, the court may choose to

consider the interruption of the personal career or education of either party. The

determination of relevant factors will vary depending on the facts and

circumstances of the case. [Id. (citation omitted).]



HUSBANDS ARGUMENT-WIFE CAN WORK!

On appeal the defendant-husband argued the trial court made factual findings that were unsupported by the record - particularly that the wife might be unable to work in the future due to poor health,

HUSBAND ARGUES WIFE EQUALLY RESPONSIBLE FOR BAD INVESTMENTS

the defendant should bear the sole responsibility for bad marital investments and (indirectly) the balance on the equity line of credit,

HUSBANDS ARGUMENT- INFIDELITY NOT A BIG DEAL

and the LIVINGSTON DIVORCE trial court placed an inordinate amount of weight on his infidelity in dividing the martial assets.



…defendant complains that the trial court placed an inordinate amount of emphasis

on his affair and ordered an inequitable property distribution to punish him. A circumstance "to be considered in the determination of property division is the fault or misconduct of a party." Davey v Davey, 106 Mich App 579, 581-582; 308 NW2d 468 (1981). However, “the trial court must consider all the relevant factors and not assign disproportionate weight to any one circumstance.” Sparks, 440 Mich at 158.

HUSBAND CONTINUED AFFAIR WHILE IN COUNSELING WITH WIFE

The trial court found defendant’s affair to be significant in relationship to assessing defendant’s credibility. It is undisputed that defendant lied to plaintiff

about the existence of the affair, misled her about the termination of the affair, and participated in counseling with plaintiff while still engaging in the affair.

WIFE GETS $150,000

The court noted that the disparity in the property division was essentially created by the award to the wife of $150,000 in alimony in gross, given that the trial court otherwise evenly divided, for the most part, the marital estate.

DID YOU KNOW?

Woodington v Shokoohi, 288 Mich App 352; __ NW2d __ (2010) (when a party has dissipated marital assets absent the fault of the other spouse, the value of the dissipated assets can be included in the marital estate).



WHAT IS ALIMONY IN GROSS

If alimony, now referred to as spousal support, is either a lump sum or a definite sum to be paid in installments, it is alimony in gross, which is not truly alimony intended for a spouse’s maintenance, but rather is in the nature of a division of property. Staple v Staple, 241 Mich App 562, 580; 616 NW2d 219 (2000).

NO VALUE IN MARITAL HOME

There was no equity and was indeed negative equity in the marital home awarded to the wife, where its appraised value was surpassed by the mortgage and the balance on the home equity line of credit, which the trial court ordered the wife to pay.

ALIMONY TO PAY OFF LINE OF CREDIT

It appeared from the record that the trial court ordered the husband to pay alimony in gross so that plaintiff could use the funds to pay off the balance due on the line of credit, which nearly equaled the amount of alimony.

LIVINGSTON COUNTY DIVORCE COURT GOT IT RIGHT

On the record presented at trial, and given all of the circumstances in the case, there was no inequity in the trial court's decision. Affirmed.

DIVORCE PROPERTY DIVISION CAN BE UNEQUAL

An unequal division of marital property is not contrary to Michigan law as long as it is

based on appropriate criteria. Washington v Washington, 283 Mich App 667, 673; 770 NW2d 908 (2009). Here, the property division favored plaintiff; however, the trial court assessed the relevant factors, and the record supported such findings. Moreover, "there is no Michigan statute or caselaw that precludes outright a substantial deviation from numerical equality in a property distribution award." Id. In this case, the trial determined that the situation did not warrant a 50- 50 property division based upon the property division factors. The trial court did not err in awarding plaintiff $150,000 in alimony in gross. The trial court used its equitable powers to mold relief according to the nature of the case and it did what was necessary to accord complete equity and to conclude the controversy. Cohen v Cohen, 125 Mich App 206, 211; 335 NW2d 661 (1983).



If you have question about Divorce, custody , child support or bankruptcy call Flint Attorney Terry Bankert 1-810-235-1970

http://www.attorneybankert.com/