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SOURCE:Court: Michigan Court of Appeals (Unpublished 02/15/2011),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

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/

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