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OAKLAND COUNTY MICHIGAN MUSLIM DIVORCE PRESENTED BY TERRY BANKERT 810-235-1970

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

2009 Mich. App. LEXIS 733, *
SAIDA BANU TARIKONDA, Plaintiff-Appellant, v BADE SAHEB PINJARI, Defendant-Appellee.
No. 287403
COURT OF APPEALS OF MICHIGAN
2009 Mich. App. LEXIS 733
April 7, 2009, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.PRIOR HISTORY: [*1]

Oakland Circuit Court. Family Division. LC No. 2008-746484-DM.

CORE TERMS: OAKLAND COUNTY MICHIGAN DIVORCE , divorce lawyer, divorce attorney , india, talaq, triple, comity, child support, child custody, indiacode, rights of citizens, marriage contracts, equal protection, pronouncing, prenuptial, invidious,

JUDGES: Before: Saad, C.J., and Bandstra and Hoekstra, JJ.

OPINIONPER CURIAM.

Plaintiff appeals as of right the trial court's order recognizing the parties' earlier divorce in India and granting defendant's motion to dismiss the divorce complaint pursuant to MCR 2.116(C)(7).

We reverse.

Plaintiff and defendant are Muslim citizens of India who were married in Hyderabad, Andhra Pradesh, India in 2001.

They have one child, Maahira, born December 22, 2005, in Anaheim, California.

Although Maahira was sent to live in India, the couple resided in Michigan from February 2006 to January 2008, when they separated.

Plaintiff remained in Michigan and defendant moved to New Jersey. 1

FOOTNOTES1 At the time plaintiff filed the divorce complaint, Maahira lived with her in Michigan. It is unclear from the record when she moved from India to Michigan.India has a two-tiered legal system with a universal civil code that applies to all citizens and individual personal laws that apply to each of the Christian, Hindu, and Muslim communities. Jain, Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women's Rights in India, 23 Berkeley J Int'l L 201, 204 (2005). [*2]

India recognizes the Muslim personal law with respect to issues of marriage and divorce. Muslim Personal Law (Shariat) Application Act of 1937, Act no. 26 of 1937, section 2.

2 One method of divorce under the Muslim personal law is the triple talaq. Pursuant to the triple talaq, a husband may summarily divorce his wife by pronouncing language such as, "I divorce thee," three times. Western, Islamic "Purse Strings": The key to amelioration of women's legal rights in the Middle East, 61 AF L Rev 79, 121-123 (2008).

In April 2008, defendant traveled to India and pronounced the following written triple talaq:

Now this deed witnesses that I the said Bade Pinjari, do hereby divorce Saida Tarikonda, daughter of T. Babu Khan, by pronouncing upon her Divorce/Talaq three times irrevocably and by severing all connections of husband and wife with her forever and for good.1.
I Divorce thee Saida Tarikonda2.
I Divorce thee Saida Tarikonda3.
I Divorce thee Saida Tarikonda . . . .

The parties disagree regarding whether plaintiff was notified of this triple talaq.

However, in May 2008, plaintiff [*3] filed a complaint for divorce in Michigan.

Defendant filed a motion to dismiss the complaint pursuant to MCR 2.116(C)(7) because of the existing Indian divorce.

To prove the divorce occurred, he offered a divorce certificate from a Wakf Board in Andhra Pradesh, India.

The trial court granted his motion.

It instructed plaintiff to register the Indian divorce in Michigan and file a separate complaint for custody and child support.

On appeal, plaintiff argues that the trial court erred when it recognized the Indian divorce, because the triple talaq is violative of due process and contrary to public policy. 3

We agree.

FOOTNOTES3 Throughout her brief, plaintiff relies upon a recent Maryland case, in which the court refused to afford comity to a divorce arising from a pronouncement of the talaq in Pakistan. Aleem v Aleem, 404 Md 404; 947 A2d 489 (2008).

A decision from a court in another state is not binding, but may serve as persuasive authority. K & K Constr, Inc v Dep't of Environmental Quality, 267 Mich App 523, 559 n 38; 705 NW2d 365 (2005).

This Court reviews a lower court's determination regarding a motion for summary disposition de novo. Hinkle v Wayne County Clerk, 467 Mich 337, 340; 654 NW2d 315 (2002). [*4] Under MCR 2.116(C)(7), a party may move for dismissal of a claim on the ground that the claim is barred because of a "'prior judgment . . . or other disposition of the claim before commencement of the action.'" Maiden v Rozwood, 461 Mich 109, 118 n 3; 597 NW2d 817 (1999), quoting MCR 2.116(C)(7).

A movant need not file supportive material. Id. at 119. However, if the movant submits affidavits, depositions, admissions or other documentary evidence, the evidence must be admissible and the trial court must consider it. Id.

"The contents of the complaint are accepted as true unless contradicted by documentation submitted by the movant." Id."

Unlike the judgments of sister states, foreign country judgments are not subject to the command of the Full Faith and Credit clause of the United States Constitution, Art. IV, Sec. 1." Electrolines, Inc v Prudential Assurance Co, 260 Mich App 144, 152; 677 NW2d 874 (2003).

Nevertheless, comity is one nation's recognition of the "legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws." Dart v Dart, 460 Mich 573, 580; 597 NW2d 82 (1999) [*5] (Dart I).

Our Supreme Court has adopted the following criteria, set forth in Hilton v Guyot, 159 U.S. 113; 16 S Ct 139; 40 L Ed 95 (1895), with respect to comity:

[W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the party that the judgment was erroneous in law or in fact. [Id. at 581, quoting Hilton, supra at 202-203.]

Likewise, this Court has stated that a judgment should be accorded comity if: 1) "'the basic rudiments of due process were followed,'" 2) "the parties [*6] were present in court," and 3) "'a hearing on the merits was held.'" Dart v Dart, 224 Mich App 146, 155; 568 NW2d 353 (1997) (Dart II), aff'd Dart I, supra, quoting Growe v Growe, 2 Mich App 25, 33; 138 NW2d 537 (1965).

Plaintiff did not enjoy the basic rudiments of due process in the instant Indian divorce. Dart II, supra at 155.

She had no right to prior notice of defendant's pronouncement of the triple talaq. Ara v Ahmad, 2002 AIR 3551, Judgment of the Supreme Court of India, entered October 1, 2002 (Appeal No. 465 of 1996) 4; Pathan v Pathan, Judgment of the Bombay High Court, entered May 2, 2002 (Criminal Writ Petition No. 94 of 2000), part 7, sections 24-25. 5

Further, she was not represented by an attorney and had no right to be present at the pronouncement. Id.

The divorce provided no opportunity for a hearing on the merits and it was not overseen by a court of law. Ara, supra; Pathan, supra.

Because plaintiff was denied due process in the Indian divorce arising from defendant's pronouncement of the triple talaq, the trial court erred by recognizing the divorce and dismissing the complaint pursuant to MCR 2.116(C)(7). Dart I, supra at 582.Notably, the Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. "The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment." Crego v Coleman, 463 Mich 248, 258; 615 NW2d 218 (2000). If the state distinguishes between persons, the distinctions must not be "'arbitrary or invidious.'" Id. at 259, quoting Avery v Midland Co, Texas, 390 U.S. 474, 484; 88 S Ct 1114; 20 L Ed 2d 45 (1968).

Wives have no right to pronounce the talaq. Pathan, supra, part 2, section 13; Islamic "Purse Strings," supra at 123.

This distinction is arbitrary and invidious. To accord comity to a system that denies equal protection would ignore the rights [*8] of citizens and persons under the protection of Michigan's laws. Dart I, supra at 580.

Plaintiff also claims that it was contrary to public policy for the trial court to recognize the Indian divorce because the Muslim personal law and Michigan law differ substantially with respect to property division.

Under Muslim personal law, wives may be entitled to a dower if it is afforded in their marriage contracts. Muslim Women (Protection of Rights on Divorce) Act, 1986, (Act no. 25 of 1986; 5/19/086), section 3(1)(c). 6

Absent a marriage contract, wives are limited to properties titled in their names. Id. at section 3(1)(d).

Under Michigan law, trial courts recognize prenuptial agreements governing the division of property in the event of a divorce. Reed v Reed, 265 Mich App 131, 141-142; 693 NW2d 825 (2005).

However, absent prenuptial agreements, trial courts equitably distribute marital property in light of all the circumstances. Berger v Berger, 277 Mich App 700, 716-717; 747 NW2d 336 (2008).

Given this difference between the Muslim personal law in India and Michigan law, affording comity to the Indian divorce would again ignore the rights of citizens and persons under the protection of [*9] Michigan's laws. Dart I, supra at 580.

In light of our conclusion above, this Court need not address plaintiff's remaining claims that:
1) it would be contrary to public policy to recognize the Indian divorce because it failed to resolve issues of custody, child support, medical expenses, parenting time, and spousal support, and
2) the triple talaq and divorce certificate were invalid in India.

On appeal, defendant maintains that the lower court file is devoid of evidence of personal service.
This claim fails.

The lower court file includes an affidavit of service, certifying that plaintiff served a copy of the summons and complaint by registered mail. MCR 2.104.

Plaintiff also attached a document from the United States Postal [*10] Service detailing the delivery information.

Next, defendant argues that, even if the trial court erred by dismissing plaintiff's complaint pursuant to MCR 2.116(C)(7), "additional issues as to jurisdiction remain."

Defendant fails to support his claim with citations to the record or authority to sustain this position. Flint City Council v Michigan, 253 Mich App 378, 393 n 2; 655 NW2d 604 (2002) ("this Court will not search for authority to support a party's position, and the failure to cite authority in support of an issue results in its being deemed abandoned on appeal.").

This claim is abandoned on appeal. Id.

Finally, given the Indian divorce, defendant maintains that plaintiff should have filed a separate complaint for custody and child support. He objects to such a complaint on several grounds.

However, because plaintiff has not yet filed a separate complaint for custody and child support in Michigan, defendant's objections are not ripe for review.We reverse./s/ Henry William Saad/s/ Richard A. Bandstra/s/ Joel P. Hoekstra

*As posted here several footnotes eliminated re:non conforming HTML-
Posted here by
Terry Bankert
http://attorneybankert.com
or
http://dumpmyspouse.com

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GRANDPARENTS GET TO VISIT THE BABIES!

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

GRANDPARENTS! Flint Divorce Attorney Terry Bankert discusses several Issues: \

Tuscola COUNTY grandparents get visitation;

HERE Flint Divorce Lawyer looks at whether the trial court properly awarded plaintiffs grandparent visitation time after the death of their son (the children's father); MCL 722.27b(1)(c);

GrandParents Rights Lawyer reviews Whether the trial court had the authority to order grandparenting time; MCL 722.27b(3)(b); Bowman v. Coleman;

BE Careful what your agreed to!Stipulation as to visitation; Koron v. Melendy; Agreement read in open court under MCR 2.507(G); Massachusetts Indem. & Life Ins. Co. v. Thomas; Wagner v. Myers;

MOM HADE AN ATTORNEY!
Whether defendant's ( mothers )due process rights were violated; Lewis v. Legrow;
Whether the plaintiffs-grandparents proved the mother s decision to lessen grandparenting time created a substantial risk of harm to the children under MCL 722.27(4)(b)

WHERE DID THIS CASE COME FROM-TUSCOLA COUNTY MI
Court: Michigan Court of Appeals (Unpublished 05/11/2010)
Case Name: McQuillan v. Sanback
Tuscola Circuit Court
LC no 08-024762-DZ
e-Journal Number: 45763
Judge(s): Per Curiam - Talbot, Fitzgerald, and M.J. Kelly

MICHIGAN COURT OF APPEALS SAYS GRANDPARENTS GET PARENTING TIME
Concluding the plaintiffs-grandparents were statutorily entitled to seek a grandparenting time order after the death of their son Joshua, the children's father, and the defendant-mother stipulated with them to the grandparenting time plan, which ostensibly worked for all parties, the court held the trial court properly entered an order memorializing the agreement and denied the mother's motion for a JNOV or new trial.
The Grandparents son died as the result of injuries sustained in a car accident.

DID YOU KNOW?“A child’s grandparent may seek a grandparenting time order . . . [if] the child’s parent who is a child of the grandparents is deceased.” MCL 722.27b(1)(c). Here, plaintiffs are the grandparents of the two minor children. Because their son is deceased, plaintiffs are entitled to seek a grandparenting time order in accordance with MCL 722.27b(1)(c).
Grand Parent Plaintiffs filed a complaint against the defendant, their daughter-in-law, seeking to establish grandparenting time with Joshua's two children.

The grand parents and the mother (parties) entered into a stipulated settlement to address grandparenting time visitation at a hearing.

DID YOU KNOW?
… an agreement that is read in open court is binding on the parties under MCR
2.507(G).1 “Judgments entered pursuant to the agreement of the parties are of the nature of a contract, rather than a judicial order entered against one party.” Massachusetts Indemnity & Life Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Absent a showing of fraud or duress, it is appropriate for a court to enforce the terms of the parties’ agreement. Id. “The litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of persuasion. Every presumption of judicial care, or professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulation and of orders and MCR 2.507(G), formerly MCR 2.507(H) states: An agreement or consent between the parties or their attorneys respecting the proceedings in an action, subsequently denied by either party, is not binding unless it was made in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by that party’s attorney. [MCR 2.507(G).

Mom’s Attorney Defense counsel stated in open court, "It is a fair and accurate full statement of the agreement of the parties of the settlement."

After the Grandparents (plaintiffs) filed a motion for entry of an order and a hearing, an order memorializing the agreement was entered.

Later, mom changed her minds (defendant) filed a motion for JNOV or a new trial alleging she was under duress at the time she reached the settlement, she did not understand what she was agreeing to, and it was not in the children's best interest to provide the level of grandparenting time specified in the agreement.

DID YOU KNOW YOU SHOULD BE CAREFUL WHAT YOU AGREE TO.

… defendant agreed to visitation time and entered a stipulated agreement on the record. Because defendant did not deny grandparenting time, plaintiffs’ burden to overcome the presumption provided by MCL 722.27b(4)(b) was never triggered. Essentially, defendant waived this presumption by agreeing to the grandparenting visitation time stipulation. Again, defendant may not benefit from a claim of error resulting from her own conduct. See Lewis, 258 Mich App at 210.

The Tuscola Circuit Court (trial court) denied the motion, holding the defendant was bound by the agreement placed on the record and it could not change the grandparenting time order without a showing of a change of circumstances.

The Tuscola Circuit court held defendant's challenge to the trial court's authority to order grandparenting time was without merit, as were her claims her due process rights were violated, and the grandparents were seeking to control the amount of visitation they have with the children in violation of MCL 722.27b(3)(b). The Michigan Court of Appeals agreed with the Tuscola Circuit Court (Affirmed).

Posted here by
Terry Bankert
http://attorneybankert.com

University of Central Florida – Emily Marron – Junior Golf Exposure Camp – Girls – 12.16.17

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by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

Temporary restraining orders.

KNOW YOUR CUSTODY,SUPPORT AND DIVORCE RIGHTS. Michigan Divorce Lawyer , Custody and support.

You can limit the actions of your spouse to drain your bank accounts, sell your assets or limit actions concerning your children by causing the court to grant a temporary restraining order.(TRO). Some courts have procedures to cause this.

Requirements for granting a temporary restraining order (TRO):

If you believe and can explain the need to your judge by stating specific facts shown in an affidavit or a verified pleading that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be entered.

The applicant’s attorney certifies in writing any efforts to give notice and why notice should not be required. For instance the asset may be lost.

A permanent record is made of nonwritten evidence, arguments, or representations supporting the application.

The order must be
(1) endorsed with the date and time it is issued,
(2) describe the injury and why it is irreparable, and
(3) state why the order was granted without notice.

Domestic relations TROs (unlike others) need not END within a fixed period, and the court need not set a date for further hearing.

Personal dangers are protected against by personal protection orders.


Attorney Terry R. Bankert based in Flint Michigan. State Wide Divorce practice in mediation. For information about State Wide Family Law issues in your area go to http://www.dumpmyspouse.com/
At my web site there are many Family Law Articles to help you.

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MICHIGAN DIVORCE PROPERTY DISTRIBUTION , DIVORCE LAWYER COMMENTS

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

MICHIGAN SAGINAW COUNTY DIVORCE PROPERTY DIVISION REVIEWED BY ATTORNEY TERRY BANKERT A DIVORCE LAWYER. For immediate help with your family law questions call 810-235-1970.

PROPERTY DISTRIBUTION FROM A THE SAGINAW DIVORCE PROPERTY DIVISION 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. KaczarekLower 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.
 
 
 
II. SAWMILL CREEK PROPERTY

Plaintiff maintains that the trial court erred in finding that the real property defendant purchased on Sawmill Creek was not a marital asset. We disagree.

We review for clear error a trial court’s findings of fact regarding whether a particular asset qualifies as marital or separate property. See McNamara v Horner, 249 Mich App 177, 182-183; 642 NW2d 385 (2002). Findings of fact are clearly erroneous when this Court is left with the definite and firm conviction that a mistake has been made. Ackerman v Ackerman, 197 Mich App 300, 302; 495 NW2d 173 (1992). We accord special deference to a trial court's factual findings that were based on witness credibility. Draggoo, 223 Mich App at 429.

A “trial court’s first consideration when dividing property in divorce proceedings is the determination of marital and separate assets.” Reeves v Reeves, 226 Mich App 490, 493-494; 575 NW2d 1 (1997). Marital assets are those that came “to either party by reason of the marriage. . . .” MCL 552.19. Generally, marital assets are subject to being divided between the parties, but separate assets may not be invaded. McNamara, 249 Mich App at 183.

Plaintiff presented evidence that the Sawmill Creek property was a marital asset acquired by defendant before she filed for divorce, but defendant presented evidence that he bought the property for and on behalf of his sister, with his sister’s money. This issue presented a question of the credibility of the witnesses. Although the trial court might have found that defendant’s explanation of his involvement in the Sawmill property purchase was not credible, and that he was concealing the property’s true status as a marital asset, it gave credence to his explanation.

This finding was not clearly erroneous because it was based on the trial court’s findings as to the credibility of witnesses. Draggoo, 223 Mich App at 429.

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. KaczarekLower 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.

MICHIGAN DIVORCE AND BANKRUPTCY

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

IS YOUR CASE IN THE EASTERN DISTRICT OF MICHIGAN BANKRUPTCY COURT? BANKRUPTCY FLINT / BAY CITY ,ATTORNEY POSTING BY Flint / Bay City Bankruptcy Attorney Terry R. Bankert 810-235-1970. Flint /BAY CITY Bankruptcy lawyer Terry R. Bankert , http://www.attorneybankert.com If you have bankruptcy questions call today 810-235-1970 this article presented in a SEO format.We are a debt relief agency that assists consumers filing for Bankruptcy.   B. Core and Related Proceedings 1. The Significant Distinction §1.6 When litigating in the bankruptcy court, the practitioner must be keenly aware of the distinction made in the jurisdictional provisions of the Bankruptcy Code between core and noncore (or related) proceedings. This distinction is important primarily because in related proceedings, bankruptcy judges may not enter final orders and judgments without the consent of the litigants.

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Divorce Over View in Michigan

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

FAMILY RIGHTS and Divorce Overview

Posted here By
Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
http://terrybankert.blogspot.com/
Articles on Divorce and lawyers in Flint, Genesee County Michigan USA
http://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html

Do you need help now?Call 810 235-1970

A Family Divorce starts with the filing of divorce legally.But between the man and wife it begins much earlier.A divorce will ultimately be granted under the no fault standard. The first decisions will be when to file, where to file, whether to seek child support, custody ,alimony and other temporary relief.

On the filing date one party must have resided in Michigan for at least 180 days and in Genesee County for 10 days immediately before filing. Residence means the place of a permanent home where the party intends to remain.

Residence has the same meaning for county and state purposes.Mere physical presence in the county for 10 days does not establish residence. Lehaman v Lehman, 312 Mich 102, 19 NW2d 502, (1945). Residence means the place of a permanent home where a party intends to remain. Banfield v Banfield, 318 Mich 38. If both parties live in Michigan the party that files first will establish the case in the county they file in.(venue)

A Michigan resident who enters the military does not lose residency status because they are out of state McFadden v McFaddeen 336, Mich 557, 59 NW2d 1 (1953). There are limitations on what may be done while a parent is on active duty.Legal ground for divorce in Michigan is when "There has been a breakdown in the marital relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved." MCL 552.6

The other spouse needs to be notified , called service, and given reasonable opportunity to retain counsel. Sometimes it takes a while for both parties to accept that they are divorcing.When there are minor children and one of the parents is incarcerated the party starting the divorce must contact the Department of Corrections to confirm the prison number and location of the party and put this in the complaint for divorce.

The caption of the petition or motion must state that a telephonic hearing is required. MCR 2.004(B). The court must issue an order requesting that the Department or facility where the party is located allow the inmate to participate in the proceeding by telephone. County jails are not included in this statute.Most cases involve a series of scheduling and settlement events with the court. There may be a hearing on temporary issues to stabilize the family until a divorce judgement can be entered.

There is a mandatory waiting period of 60 days for families without children and 6 months for families with children. The waiting period is for the benefit of the children.

In Genesee County the series of events will begin with a temporary hearing court date to stabilize children and family finances.The court will several months later set a pretrial date to resolve discovery timeliness and narrow the issues followed by a settlement conference with the judge and then trial. The parties may settle at any time.

Friend of the court mediation may be provided for custody and parenting time disputes. The court may at any time refer a contested issue to mediation.Some local judges have an alternative dispute resolution or mediation process that they order their cases to.This is where a third party and attorney or an agency tries to resolve the issues without a trial.

The legal procedure concludes with entry of a judgement of divorced. Most cases get to this point without a trial. There is a great value in the parties settling their own issues of children and finances. Good parenting in divorce includes the ability of the parents to learn ways to negotiate their difference and show children that they are loved and secure.

The final document entered with the court called a judgement of divorce. To finalize the judgement a brief court hearing is required. Consent judgement are routinely approved.No divorce judgement may be entered without a hearing in open court at which proofs are taken. The testimony of at least one party must establish the statutory grounds for divorce andjurisdiction.

In those few cases where a trial is required entry of judgement follows a ruling by the court on the disputed issues. The parties are divorced when the judgement is signed and filed with the court.

Posted here By Attorney Terry Ray Bankert
810 235-1970http://attorneybankert.com/

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.http://terrybankert.blogspot.com/

Articles on Divorce and lawyers in Flint, Genesee County Michigan USAhttp://terrybankert.blogspot.com/2006/09/divorce-attorneys-and-law-in-flint.html

Do you need help now?Call 810 235-1970

Comics of the Week #405 | Mcanous Design

Comics of the Week #405 | Mcanous Design


Mcanous Design

Every week we feature a set of comics created exclusively for WDD. The content revolves around web design, blogging and funny situations that we encounter in our daily lives as designers. These great cartoons are created by Jerry King, an award-winning cartoonist who’s one of the most published, prolific and versatile cartoonists in the world […]

EATON COUNTY CHILD CUSTODY JUDGE TOLD TO DO IT OVER.Comments by Flint Divorce Lawyer Terry Bankert, 235-1970

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

 
The Eaton County Divorce Court, Family Division, 1999 Child Custody dispute and order granting joint legal custody was done wrong because there was not a child custody change in circumstances determination hearing. Flint Divorce Attorney Terry Bankert, a subscriber to Dump My Spouse . Com, reviews this issue. If you need information on you child custody, child support or divorce call 1-810-235-1970 , Divorce Lawyer Terry Bankert or see the link below.

CHILD CUSTODY DECISIONS ARE HARD ON CHILDREN, PARENTS AND SOMETIMES THE LAWYERS.

DO NOT THINK YOU ARE ALONE. Another chapter in the bitter child custody battle between NBA star Dwayne Wade and his wife played out in a Chicago court room Friday with Mrs. Wade firing her ninth attorney. [3] ANOTHER ON BITES THE DUST
The FAMILY COURT trial had been set to get under way June 7, but at a hearing Friday, Cook County Circuit Judge Marya Nega , DIVORCE AND CHILD CUSTODY,granted what she described as a final postponement after allowing Mrs. Wade to dismiss her most recent lawyer. [3]

NOW BACK TO MICHIGAN
 
The State of Michigan Court of Appeals in the case concerning FATHER JOHN E. WILBER,
Plaintiff/Counter-Defendant- appellant and MOTHER Skye D. Carter Defendant /counter-Plaintiff-Appell in an UNPUBLISHED DECISION ,May 20, 2010,v No. 293804 DECIDED ON THE ORDERS OF A LOCAL COURT. The child custody case was from Eaton Circuit Court. That courts case number is LC No. 99-000882-DP. The information that follows is altered for this media presentation. The original case can be found at cite [1]

In this EATON COUNTY CHILD CUSTODY custody dispute, p FATHER plaintiff appeals an order granting joint legal custody of the parties’ minor child (DOB 4/20/99).

THE EATON COUNTY COURT WAS WRONG IN A CHILD CUSTODY DECISION
Because the trial court erred in awarding custody without determining a change in circumstances, just cause, the existence of an established custodial environment, and without considering the best interest factors, we reverse the order and remand for further proceedings.

DUE PROCESS AND STATE LAW VIOLATED

FATHER Plaintiff argues that the court erred in modifying a prior custody award without a motion being submitted and without a finding that there was proper cause or a change in circumstances to justify the modification.

SOME HAVE BEEN TRYING TO CHANGE THE LAW BUT WILL NOT BE ON THE BALLOT NOT THIS YEAR.

Robert Kerr of Lansing, who launched an effort to require circuit courts to award joint child custody unless there's convincing legal evidence that one of the parents is unfit, said the hurdle to collect 304,100 signatures was too high. He's hoping a bill that would achieve similar aims will get a fair hearing in the House Judiciary Committee. [4]

DOCTRINE FOLLOWED

A custody order must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue. MCL 722.28; Berger v Berger,
277 Mich App 700, 705; 747 NW2d 336 (2008). A trial court commits legal error when it
incorrectly chooses, interprets, or applies the law. Id. at 706.

THE CHILD CUSTODY ACT AND EATON COUNTY, THERE ARE RULES A JUDGE MUST FOLLOW.

The Child Custody Act of 1970 (CCA), MCL 722.21 et seq., governs child custody
disputes between parents, agencies, or third parties. The purpose of the CCA is to promote the
best interest of children, and it is to be liberally construed. MCL 722.26(1); Harvey v Harvey,
470 Mich 186, 192; 680 NW2d 835 (2004). The CCA creates “presumptions and standards by
which competing claims to the right of custody are to be judged, sets forth procedures to be
followed in litigation regarding such claims, and authorizes the forms of relief available in the
circuit court.”. Ruppel v Lesner, 421 Mich 559, 565; 364 NW2d 665 (1984).

WHAT THE EATON COURT GAVE FATHER IT TOOK AWAY IN ERROR

FATHER Plaintiff states that the court changed custody because it issued an order on March 31,
2009, awarding plaintiff sole legal and physical custody of the child and then, on August 11,
2009, ordered “[d]efendant’s joint legal custody of the minor child is restored. Hence both
parties shall now share joint custody of the minor child.”

FATHERS RIGHTS WERE TAKEN AWAY AT A REVIEW HEARING

The August 11, 2009, order followed a hearing that was scheduled in the order dated March 31, 2009, to review the matter.

THE EATON COUNTY COURT HAD MADE SEVERAL CHANGES TO CHILD LEGAL CUSTODY

Since the original February 2000 award of joint legal and physical custody, the court
changed the custody arrangement several times.

EATON COUNTY COURT ISSUED A TEMPORARY ORDER PENDING REVIEW

05/2005-temp physical to father

In May 2005, after motions from both parties, the court awarded temporary physical custody to plaintiff pending a referee hearing.

02/2006- next review hearing

After a referee hearing and a motion by defendant, the court ordered that the parties again have joint legal and physical custody, and set a review hearing for February 2006.

12/2006- led to motions and a referee hearing
Following motions by both parties and a referee hearing, the court awarded temporary physical custody to plaintiff and suspended defendant’s parenting time pending further orders and a referee hearing in December 2006.

02/2007 continued fathers custody mothers supervision

In February 2007, after a referee hearing, the court continued temporary physical custody
with plaintiff and supervised visits with defendant.

07/2008, mother gets parenting told to move

In July 2008, after defendant petitioned for parenting time and plaintiff sought child support, the court ordered parenting time for defendant and required defendant to secure different living conditions within four months.

03/31/2009, father granted father sole legal and physical

In a March 31 2009, order, after another motion by plaintiff to limit defendant’s parenting time and a scheduled review hearing at which the court interviewed the child, the court granted plaintiff sole legal and physical custody and scheduled the matter for review in August 2009.

08/11/2009 mothers joint legal custody restored, saying it intended too all along.

After the review hearing and a second interview with the child, the court ordered on August 11,

2009, that defendant’s joint legal custody was restored. The court also scheduled a hearing to review child support.

During the August 2009 review hearing, the court reviewed the history of the case and
indicated that the intent had long been to expand defendant’s involvement in the child’s life, but
that the real question was whether to reinstate the original joint physical custody arrangement of the parties.

EATON COUNTY COURT WAS UNCOMFORTABLE WITH MOTHER BUT MOTHER WA BEGING TO ACT IN A STANDARD MANNER.

The court indicated that it was not entirely comfortable with defendant’s
involvement with the child in the past but that defendant began to resume more typical parenting time.

EATON COUNTY COURT SAID IT WAS CONSIDERING CHANGING CUSTODY BECAUSE FATHER WAS MAKING IT DIFFICULT FOR MOTHER?

The court indicated that it was likely to restore joint legal custody because plaintiff was
relying on sole legal custody in order to make things difficult for defendant.

DID EATON COUNTY THINK IT WAS MANAGEING THIS CHILD CUSTODY ARRAINGEMENT?

Because the court issued temporary orders on May 25, 2005, and February 16, 2007,
scheduled hearings to review the matter, made comments regarding its general intention to
restore the original custody arrangement, and in its August 11, 2009, order referred to restoring
joint custody rather than awarding custody, it is possible that the court believed it was managing
the custody of the parties with temporary orders to preserve, and not modify, the original custody arrangement as intended.

WE WANT PARENTS TO FEEL FREE TO LET THE OTHER PARENT HAVE MORE TIME WHEN THEY ARE IN NEED.

Indeed, this Court has affirmed the “good public policy to encourage
parents to transfer custody of their children to others temporarily when they are in difficulty by
returning custody when they have solved their difficulty.” Straub v Straub, 209 Mich App 77,
81; 530 NW2d 125 (1995).

TOO MUCH SPECULATION

However, under these circumstances, any finding that the court was
modifying temporary orders until joint custody could be restored would be based on speculation.

SOME ORDERS WERE CALLED TEMPORARY SOME WERE NOT.

Only two of the court’s six orders changing the custody arrangement of the parties were
characterized as temporary. The August 11, 2009, order followed a March 31, 2009, order
granting sole legal and physical custody to plaintiff that did not state that it was a temporary
order.

WHAT DOES THE LAW SAY?

MCL 722.27(1) provides in part:
If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following:
* * *
(c) Modify or amend its previous judgments or orders for proper cause shown or
because of change of circumstances until the child reaches 18 years of age and,
subject to section 5b of the support and parenting time enforcement act, 1982 PA
295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The
court shall not modify or amend its previous judgments or orders or issue a new
order so as to change the established custodial environment of a child unless there
is presented clear and convincing evidence that it is in the best interest of the
child.

EATON COUNTY CHANGES IN CHILD CUSTODY MUST BE BASED ON CAUSE OR CHANGE.

Thus, the party seeking a change of custody must first establish proper cause or change of
circumstances by a preponderance of evidence. In re AP, 283 Mich App 574, 600; 770 NW2d
403 (2009). If a party fails to establish proper cause or change of circumstances, the trial court
may not hold a child custody hearing. Corporan v Henton, 282 Mich App 599, 603-604; 766
NW2d 903 (2009).

EATON COUNTY FAMILY COURT DID NOT CONSIDER THESE THRESHOLDS

Here, there was no discussion of the threshold question of proper cause or a change in
circumstances during the August 5, 2009, hearing or in the August 11, 2009, order to consider a
change in the March 31, 2009, custody order.

SOMETIMES JUDGES FORGET THEY ARE THE REFEREES OF AN ADVESARIAL SYSTEM BASED UPON MOTIONS AND RESPONSES

Neither party filed a motion to change custody following the March 31, 2009, order. A trial court must determine if the moving party has shown that the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed since the entry of the last custody order. Brausch v Brausch, 283 Mich App 339, 355-356; 770 NW2d 77 (2009).
 
Here there was no such motion and no findings presented on the matter.

THE EATON COUNTY CHILD CUSTODY JUDGE WAS SUPPOSED TO DETERMINE IF A CUSTODIAL ENVIRONMENT EXISTED.

Additionally, the first step in considering a change in custody is to determine whether an
established custodial environment exists. It is only then that the court can determine what
burden of proof is applied. Curless v Curless, 137 Mich App 673, 676; 357 NW2d 923 (1984).1

THE EATON COUNTY CHILD CUSTODY JUDGE DID NOT LOOK AT THE CHILDS BEST INTEREST ON THE COURTS RECORD.

Further, above all, custody disputes are to be resolved in the best interests of the child, as
measured by the factors set forth in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631
NW2d 748 (2001). Generally, the trial court must consider and explicitly state its findings and
conclusions regarding each factor and the failure to do so is reversible error. Rittershaus v
Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007); Daniels v Daniels, 165 Mich App
1
HERE IS WHAT A CUSTODIAL ENVIRONMENT IS.

According to MCL 722.27(1)(c), a custodial environment is established if: “over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort. The age of the child, the physical environment, and the
inclination of the custodian and the child as to permanency of the relationship shall also be
considered.” 726, 730; 418 NW2d 924 (1988).

ITS NOT A MIGHT DO IT’S A MUST DO RESPONSIBILITY.

Even in fairness to the parties this standard cannot be abrogated. Soumis v Soumis, 218 Mich App 27, 34; 553 NW2d 619 (1996).

THE EATON COUNTY JUDGE DID NOT DISCUSS THESE ISSUES

In the instant case, there was no discussion or findings regarding an established custodial
environment, the standard of proof required to change custody, or the statutory best interest
factors in the courts order or during the hearing.

THERE IS NOTHING NEW ABOUT THE COURT OF APPEALS EXPECTING THE EATON COUNTY JUDGE TO FOLLOW THE LAW OF CHILD CUSTODY.

This Court has consistently held that when deciding a custody matter the trial court must evaluate each of the factors contained in MCL 722.23 and state a conclusion on each, thereby determining the best interests of the child. Thompson v Thompson, 261 Mich App 353, 363; 683 NW2d 250 (2004).

THESE LAWS PROTECT THE FUNDAMENTAL RIGHTS OF PARENTS AND CHILDREN AND ARE NOT TO BE IGNORED.

It is vitally important for the protection of the fundamental rights of the parties involved to have some indicia on the record showing that the court has satisfied itself that its custody determination was in the child’s best interests. In re AP, 283 Mich App at 608.

SOCIETY WANTS TO MINIMIZE DISRUPTIZE CHANGES IN A CHILDS LIFE.

The goal of the CCA is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances. See Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).

SINCE THE EATON COUNTY COURT DID NOT MAKE A CHILD CUSTODY DECISION RIGHT IT MUST DO IT AGAIN.

When a trial court fails to consider custody issues in accordance with the mandates set
forth in MCL 722.23 and make reviewable findings of fact, the proper remedy is to remand for a
new child custody hearing. Foskett, 247 Mich App at 12. Also, where this Court concludes that
the trial court committed clear legal error on a major issue, the appropriate remedy is to remand
for reevaluation. Fletcher v Fletcher, 447 Mich 871, 888-889; 526 NW2d 889 (1994);
Rittershaus, 273 Mich App at 475-476.

THE MICHIGAN STATE COURT OF APPEALS , We therefore reverse and remand. On remand, the EATON COUNTY trial court should consider up-to-date information, including the child’s current and reasonable preferences and any other changes in circumstances arising since the original custody order.
Fletcher, 447 Mich at 889.

ORDER OF THE MICHIGAN COURT OF APPEALS

Reversed and remanded. We do not retain jurisdiction.
FATHER MAY GET COSTS FROM MOTHER
Plaintiff, being the prevailing
party, may tax costs pursuant to MCR 7.219.
MICHIGAN COURT OF APPEALS PANEL Douglas B. Shapiro, Kathleen Jansen, Pat M. Donofrio

Posted here by
Terry Bankert
http://attorneybankert.com
Or
http://dumpmyspouse.com
SEE
[1]
STATE C O U R T O F A P P E A L S,JOHN E. WILBER, Plaintiff/Counter-Defendant-
Appellant, UNPUBLISHED,May 20, 2010,v No. 293804,Eaton Circuit Court,SKYE D. CARTER, LC No. 99-000882-DP,Defendant/Counter-Plaintiff-,Appellee.Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.PER CURIAM.
At http://www.michbar.org/opinions/appeals/2010/052010/45902.pdf
[2]
Modifications have been made by Terry Bankert shown as CAP HEADLING TYPE or cited as (trb) other sources made be included and cited. The oddities of this article are for SEO.
[3]
http://abclocal.go.com/wls/story?section=news/local&id=7467958
[4]
http://www.detnews.com/article/20100527/POLITICS02/5270417/1024/POLITICS03/Citizen-petitions-unlikely-to-make-it-onto-ballot

The Weaver Barns Pavilion – Simple Outdoor Elegance!

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White Supremacy and the College Campus

by aradik @ Fulton-Montgomery Community College

by Dr. Dustin Swanger Recent events on the University of Virginia Campus in Charlottesville illustrated the divide that is happening in our country. White Supremacists marched across the campus shouting racist, homophobic and anti-Semitic chants. This group was met with many individuals who were protesting the White Supremacists’ march. The campus was under siege; the […]

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by admin @ J&B Technology

Non-Profit Donations Over the last couple years, we here at J&B Technology have become painfully aware of the technology needs in the nonprofit sector. However, we find that many folks in the nonprofit sector are challenged with technology and don’t know where or how to get the services they need with a limited budget. Technology donations from TechSoup might just Continue Reading

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College Golf Camps™ – BIG 5 – Junior Golf Exposure Camp – Pinehurst, NC 2016 – Girls

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Girlfriend must give back ring but keep baby!

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

Flint Divorce Lawyer Terry Bankert received the following question from AVVO.

“My boyfriend gave me a promise ring on March 14th,2010 told me that the engagenent ring will come after. Now he wants the promise ring back, what are my rights and do i have yo give it back or was it a gift? He said I aint allowed to move any of me or my childs things out of here till i do. What do I do now?”

The ring is a conditional gift. It is not yours.

Some sources say you must give it back. “The engagement period is often a time of euphoria and bliss as two individuals build a relationship and contemplate one of the most important institutions in human society - marriage. ...

A majority of jurisdictions, to include Meyer V Mitnick 244 Mich App 244 , 2001 Michigan ,hold that where an engagement gift is given to a donee in contemplation of marriage, although absolute in form, it is conditional; the donor is entitled to return of the engagement gift upon breach of the engagement. ...

Prior to the surge of modern "no-fault" divorce proceedings, a majority of jurisdictions held or recognized that where the donor breaks the engagement, the donee has the right to possess the engagement ring or to recover its value. ...

The donor had filed a complaint in replevin alleging a conditional gift of a diamond engagement ring to the donee, where the donor had terminated the engagement one year later. ...


While a majority of lower courts recognize that where the donor breaks the engagement, the donee has the right to possess the engagement ring, it is important to recognize that these decisions predate the courts' extension of the policy that removes fault-finding from the personal-relationship dynamics of marriage and divorce to encompass that of broken engagements. ... “
I you have additional questions contact Terry Bankert at http://attorneybankert.com/

Encouraging Your Patient to make a Healthy Lifestyle Change

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Mott Community College - PhysicalTherapist.com

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How NAP Affects Local SEO and Why Citation Consistency is So Important by John Crenshaw on Sep 25, 2016 A major factor in determining how you rank locally is the quantity and quality of citations and NAP consistency across your citations. What is NAP stand for? NAP stands for Name, Address, and Phone Number. It's a critical factor in local Continue Reading

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SHOULD MOM ON HEROIN SEE HER CHILD?

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

Flint Divorce Lawyer Terry Bankert was asked the following question through AVVO.

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits. She currently is not allowing my ex to go to her house due to various thefts and drama. During the past six months she has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she only has come to see him about half the time. Recently she hasn’t came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

First I will restate it to clearly identify the actors for this answer and state several assumptions.

“Can my ex get me in trouble for not sending my son to his supervised visits.
My ex mother in-law has not obeyed the rules for the visits of my son with my sons mother.

ASSUMPTION Because there is an ongoing protective services case and she has a case worker it is assumed that there is an active CPS case with a placement with the father and mothers parenting time is supervised at the maternal grandmothers home.

She, my ex- mother in law, currently is not allowing my ex wife to go to her , the ex-mother in law, house due to various thefts and drama.

During the past six months she, the ex wife, has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she ,the ex wife, only has come to see him about half the time.

Recently she , the ex wife, has not came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

The writer asked

“Can my ex get me in trouble for not sending my son to his supervised visits”

RESTATED Will the father be in violation of a court order if he does not send his son to the maternal grandmothers home as ordered in a child protective proceeding as ordered by the court at probably a contested pretrial. YES

ASSUMPTION The father has not denied the child to the maternal grand mother for the supervised parenting time.

The father will not be “ in trouble” if is the grand mother in breech. If the child has a loving relationship with the grand mother why stop sending the child. The grand mother will have to explain her actions at the next contested pretrial. The father should contact the case worker directly to establish that he is not withholding the child. The father should monitor the child protective proceedings.

Child protective proceedings and their orders are temporary in nature unless there is an order for termination of parental right. The domestic order that establishes parentage, child custody and parenting time is permanent. It is superseded by the Child protective order but will return when the child proactive case is closed. The father if he does not already have it should seek a change in custody of the child to him self and supervised parenting time to the mother.
For further explanation please contact me directly.

Terry Bankert
http://attorneybankert.com/

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MICHIGAN FAMILY LAW ADVISOR
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Every orthopedic physical therapist is confronted with the obese patient who is 80-100 pounds overweight and has osteoarthritis of the knees. After performing hundreds of straight leg raises along with ...

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College Golf Camps™ – BIG 5 – Junior Golf Exposure Camp – Pinehurst, NC 2016 – Boys

by admin @ College Golf Camps™

CAMP IS SOLD OUT!!! College Golf Camps is coming back to the “Home of American Golf”, Pinehurst, North Carolina, November [...]

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Attorney Sarah Ellis – Flint Michigan

by admin @ J&B Technology

We’re excited to assist a local attorney in launching her new solo practice located in Flint. So far, we've been able to help Attorney Sarah Ellis with phone services, designing a website, and setting up her marketing. Her new website includes drop down menus for both mobile and desktop versions, descriptions of the services provided, client reviews, and a blog Continue Reading

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Search Engine Optimization Blogging

by Seattle SEO Consultant Rob @ Rob1SEO | Top SEO Consulting Company

There’s no doubt about it. Blogging is a tried and true method of increasing site traffic and conversion rates. A blog has so much versatility, it’s one of the most important tools you can use to develop a community and maintain a steady stream of website traffic. But how can you make your blog worth …

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Extended Office Hours! Get Ready for Fall!

by kromano @ Fulton-Montgomery Community College

The Raider Trader College Store, Financial Aid office, Registrar’s office and the Bursar’s office will be open until 6 pm for a limited time.  Please check out the schedule below for further details: Raider Trader College Store Sunday, 8/27                                                    11am – 4pm Tuesday – Thursday, 8/29, 8/30, 8/31      8:15am – 6pm First week of […]

FM’s Perrella Gallery Hosts New Exhibition

by aradik @ Fulton-Montgomery Community College

Now – October 13, 2017 Made In China, Photography by Zhan You Bing Every day we shop for, handle, and use products made by people working in factories thousands of miles away in China. MADE IN CHINA is an exhibition of photographs by Zhan You Bing that document the lives of Chinese factory workers who […]

When Should You Start Up a Google AdWords Campaign For Your Company?

by Seattle SEO Consultant Rob @ Rob1SEO | Top SEO Consulting Company

You’re excited about how your company is growing. More and more people are becoming aware of your company and brand. You want to continue to advertise your business and its products.   1.  Customer Demand The first ingredient is customer demand. If your Seattle customers are not searching for your product or service in Google, …

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FCC Recommends Consumer Labels for Broadband Services

by admin @ J&B Technology

FCC Consumer Label for Broadband Services Comparing prices, performance and network practices of broadband service providers can be challenging, even for technology savvy consumers. With this in mind, the FCC created Open Internet transparency rules requiring providers to convey sufficient information for consumers to make informed choices about available broadband services. Based on recommendations from its Consumer Advisory Committee, the Continue Reading

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MICHIGAN DIVORCE AND BANKRUPTCY

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

Limitations on Ability to Make Claims
The surviving party to whom property settlement payments or support payments are owed or who has remained jointly liable for debts which the decedent has not paid prior to his or her death may have difficulties claiming against the estate, even though the debts are binding on the estate.
The estate may not have sufficient assets to satisfy the obligations.
The court retains power to modify the divorce judgment and may entertain a motion to decrease or terminate the payments on petition of the decedent’s personal representative. Pingree v Pingree, 170 Mich 36, 135 NW 923 (1912); Flager v Flager, 190 Mich App 35, 475 NW2d 411 (1991).
Assets may be held jointly with a new spouse (or others), so that the property passes to the surviving owner at the time of death, which means it is not available to satisfy the outstanding debt to the former spouse.
The decedent and a new spouse may have a signed pre-nuptial agreement which conflicts with the provisions of the judgment of divorce and otherwise disposes of the assets of the decedent which could have been included in the estate and/or used to satisfy the support/property settlement obligations.
Life insurance policies which were owned by the decedent as Trustee of his or her own trust , covering his or her own life, may be included in the estate by law, if the decedent had any incidents of ownership in the three years immediately preceding his or her death (incidents of ownership include the right to change the beneficiary, the right to borrow against the policy or the right to cash in the policy). This will complicate the distribution of the proceeds from the policy and may have ramifications for taxes and/or assessing the cost of probating the estate.
The parties may no longer live in the same jurisdiction, making it cumbersome and expensive for the surviving party to monitor probate of the decedent’s estate
MCL 700.3805(1) establishes priority of claims against the estate of the decedent. The are, in order of priority: costs and expenses of administration; reasonable funeral and burial expenses; homestead allowance; family allowance; exempt property; debts and taxes with priority under federal law; reasonable and necessary medical and hospital expenses of the decedent’s last illness, including compensation of persons attending the decedent; debts and taxes with priority under other laws of this state; all other claims. The party to whom debts pursuant a judgment of divorce are still owed is eighth in line of priority.
MCL 600.5809(3) limiting actions to enforce divorce judgments to a period of ten years will prohibit the payee’s ability to claim against the estate if ten years have passed since entry of the judgment of divorce, or since the past payment was made.(See Form 4 for sample judgment clause)
MCL 600.5803 limits actions to enforce divorce judgment liens on real property to a 15-year limitation period for the foreclosure on liens. Sullivan v Sullivan, 300 Mich 640, 2 NW2d 799 (1942).
A payee who has failed for many years to seek enforcement of payments due or to initiate proceedings to collect property settlement payment or support payments may be prevented from doing so under the doctrines of laches and estoppel. Sonenfeld v Sonenfeld, 331 Mich 60, 49 NW2d 60 (1951).
Failure to timely draft and enter the appropriate Domestic Relations Orders awarding the payee his or her interest in the obligor’s retirement accounts may prevent their award to the payee on death of the obligor, or may require time consuming and expensive litigation with the estate and/or the plan administrator. www.attorneybankert.com

Loon Lake Writing Retreat

by ValorieBadgett @ Barn And Log Homes

Loon Lake Writing Retreat Event on 2017-09-29 15:00:00 You are invited to the Loon Lake Writing Retreat. Part workshop and part retreat this weekend will provide you with an opportunity to focus on your written work and be fully supported … Continue reading

Loon Lake Writing Retreat is a post from: Barn And Log Homes

UtopiaSoft develops Book Maker solution for Health Care Provider

by John Dolson @ UtopiaSoft, LLC

UtopiaSoft has developed a windows based solution that creates directories for a major health care provider based in Detroit, Michigan. The directories are created in Adobe PDF format and can be accessed electronically and in printed format. The program will automatically process new directories every month.

Shania Twain dates home wreckers husband, Midland Michigan divorce and comments of Flint Divorce lawyer 235-1970

by noreply@blogger.com (Dump My Spouse) @ MichiganDumpMySpouse.com

SHANIA TWAIN WITH A DIVORCE ATTORNEY DIVORCED CHEATING HUSBAND AND IS NOW DATING THE HOME WRECKERS HUSBAND

Shania Twain's divorce from music producer Robert "Mutt" Lange was finalized this week, and the country singer appears to be wasting no time moving forward with her new man, Frederic Thiebaud [1]

WAS IT AN AFFAIR OR JUST CLOSE WORKING RELATIONSHIP

Immediately after their separation, it was alleged that the two split because Lange was having an affair with Marie-Annie Thiebaud, the couple's longtime secretary and manager of their chateau in Switzerland. [1]

AND THE BEAT GOES ON

Twain was recently spotted getting cozy with Marie-Annie Thiebaud's ex-husband, Frederic, at the Swiss Red Cross Ball on May 29, according to a recent People report. A source close to the country singer told the magazine that Twain "looked radiantly happy" and that the two "are a great addition to each others lives." [1]

If you think the twain lange divorce had its twists and turns the following Midland Michigan Divorce and subsequent battle to change custody must have been emotionally draining.
The Midland Divorce case follows.

S T A T E O F M I C H I G A N C O U R T O F A P P E A L S

LISA A. DOUGLAS, f/k/a LISA A. EATON,
Plaintiff-Appellee,
UNPUBLISHED
May 25, 2010
v No. 294177

Midland Circuit Court

RUSSELL E. EATON,
LC No. 06-001485-DM
Defendant-Appellant.
Before: BANDSTRA, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.

Defendant appeals as of right the order granting plaintiff’s petition for modification of
custody and awarding plaintiff sole legal and physical custody of the minor children and
modifying defendant’s parenting time. For the reasons set forth in this opinion, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant were divorced in June 2007. They had two minor children, Cody
(d/o/b 3/15/99) and Tyler (d/o/b 10/14/00). The divorce judgment awarded the parties joint legal and physical custody of the minor children, with the children’s primary residence being with plaintiff.

Defendant was awarded parenting time on alternating week-ends and for one evening
each week on the weeks he did not have parenting time on the weekend. On August 14, 2008,
defendant filed a petition for change of custody, seeking equal parenting time for the parties,
with custody of the minor children alternating each week.

Plaintiff filed a response to defendant’s petition for change of custody and a counter-petition for a change in parenting time that sought, among other things, to increase plaintiff’s parenting time and decrease defendant’s parenting time.

On April 8, 2009, plaintiff filed an amended petition for modification of
custody, seeking sole legal and physical custody of the parties’ minor children.

The trial court found that there was proper cause to revisit the custody order and found
that there was an established custodial environment with plaintiff, but not with defendant. The
trial court considered the statutory best interest factors in MCL 722.23 and found that it was in
the children’s best interests to award sole legal and physical custody to plaintiff. Defendant was
awarded parenting time on alternating week-ends during the school year, from 6:00 p.m. on
Friday to 6:00 p.m. on Sunday.

The trial court ordered summer parenting time “according to the
Midland County Co-Parenting Plan . . . .” Defendant thereafter filed a motion for
reconsideration, which the trial court denied.1

II. ANALYSIS

1. STANDARD OF REVIEW
This Court applies three standards of review in child custody cases. See Fletcher v
Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994). First, the trial court’s findings of fact
are reviewed under the “‘great weight of evidence’” standard and will be affirmed unless the
evidence clearly preponderates in the opposite direction. Id. at 877-878, quoting MCL 722.28.
A trial court’s findings regarding the existence of proper cause or a change in circumstances
sufficient to reconsider a custody award and the existence of an established custodial
environment, as well as the trial court’s findings regarding the best interest factors under MCR
722.23, are reviewed under the great weight of the evidence standard. Berger v Berger, 277
Mich App 700, 705; 747 NW2d 336 (2008); Vodvarka v Grasmeyer, 259 Mich App 499, 512;
675 NW2d 847 (2003). Second, this Court reviews questions of law for clear legal error that
occurs when a trial court incorrectly chooses, interprets, or applies the law. Berger, 277 Mich
App at 706. Third, discretionary rulings, such as custody decisions, are reviewed for an abuse of
discretion. Fletcher, 447 Mich at 879; Shulick v Richards, 273 Mich App 320, 323-325; 729
NW2d 533 (2006). An abuse of discretion in matters involving child custody exists where the
result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or
the exercise of passion or bias. Shulick, 273 Mich App at 324-325. The overriding concern in
custody determinations is the child’s best interests. Fletcher v Fletcher, 229 Mich App 19, 29;
581 NW2d 11 (1998).

2. PROPER CAUSE/CHANGE OF CIRCUMSTANCES UNDER MCL 722.27(1)(c)

Defendant first argues that there was not proper cause to modify the custody order. A
trial court may modify a custody award only if the moving party first establishes proper cause or
a change in circumstances. MCL 722.27(1)(c); Vodvarka, 259 Mich App at 508-509. The goal
of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except
under the most compelling circumstances. Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363
(2001). Thus, a party seeking a change in child custody is required, as a threshold matter, to first
demonstrate to the trial court either proper cause or a change in circumstances. Vodvarka, 259
Mich App at 508. If a party fails to do so, the trial court may not hold a child custody hearing.
Id. In Vodvarka, this Court explained the terms “proper cause” and “change of circumstances”:
1

In its order denying defendant’s motion for reconsideration, the trial court clarified that while it
eliminated defendant’s mid-week parenting time during the school year, defendant’s mid-week
parenting time on alternating weeks would continue during the summer.

[T]o establish “proper cause” necessary to revisit a custody order, a movant must
prove by a preponderance of the evidence the existence of an appropriate ground
for legal action to be taken by the trial court. The appropriate ground(s) should be
relevant to at least one of the twelve statutory best interest factors, and must be of
such magnitude to have a significant effect on the child’s well-being. When a
movant has demonstrated such proper cause, the trial court can then engage in a
reevaluation of the statutory best interest factors.
* * *
[I]n order to establish a “change of circumstances,” 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. Again, not just any change will suffice, for over time
there will always be some changes in a child’s environment, behavior, and wellbeing.
Instead, the 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. This too will be a determination made on
the basis of the facts of each case, with the relevance of the facts presented being
gauged by the statutory best interest factors. [Vodvarka, 259 Mich App at 512-
514 (emphasis in original).]

In this case, defendant himself sought a change in custody, and in his petition for change
of custody, he argued that there had been a substantial change of circumstances since the entry of the judgment of divorce.

In his petition, defendant articulated numerous specific instances that
constituted a change of circumstances, including plaintiff’s strict enforcement of the parenting
time schedule in the judgment of divorce, plaintiff’s violations of the inherent rights of the minor
children, plaintiff’s refusal to let defendant see the minor children on a particular weekend for a
matter of hours per defendant’s special request, plaintiff’s failure to pick up the children after
defendant exercised parenting time with them, problems between the parties regarding one of the minor children’s participation on a baseball team that was coached by defendant, and a conflict between the parties that resulted in a scene at the minor children’s baseball practice.

The trial court specifically rejected defendant’s contention that plaintiff’s strict
enforcement of the parenting time schedule in the judgment of divorce constituted a change in
circumstances.

In reviewing the specific instances cited by defendant, the trial court stated that
the parties’ problems with co-parenting were more properly characterized as proper cause to
revisit the custody order, rather than a change of circumstances sufficient to revisit custody:

The specific instances raised by the Defendant in his petition were also
thoroughly discussed at the hearing through testimony by both parties and their
witnesses.

The situations are clear illustrations of the parties’ current inability to
co-parent their children in a manner geared toward the best interests of the
children. The Court does not feel, however, that the contention between the
parties is appropriately categorized as a change of circumstances. Instead, the coparenting
problems should be classified as proper cause by which to revisit the
current order.

The issues surrounding the parties’ inability to co-parent, and the
instances in which those issues have manifested themselves, are clearly relevant
to the parties’ willingness and ability to encourage and facilitate a close
relationship between the child and the other parent.

The facilitation and encouragement of such relationship is one of the twelve best interest factors, and based on the testimony presented, the problems between the parties are having a
significant effect on the well-being of the children involved in this case.

Therefore, the Court finds proper cause exists to revisit the current custody order.
[Footnote omitted.]


It is arguable that defendant has waived his argument that there was not proper cause or
change of circumstances sufficient to revisit the custody order by asserting in his petition for
change of custody that there was proper cause to revisit the custody issue. Error requiring
reversal cannot be error to which the aggrieved party contributed by plan or negligence. People
v Gonzalez, 256 Mich App 212, 224; 663 NW2d 499 (2003). Even if defendant has not waived
his argument regarding the lack of proper cause or change of circumstances, his argument is
without merit.

Defendant argues that there was not proper cause to revisit the custody issue
because the only testimony that the parties’ inability to co-parent the children was affecting the
children came from plaintiff and plaintiff’s witnesses. Defendant’s argument in this regard
essentially asks this Court to interfere with the factfinder’s duty to determine the credibility of
witnesses and the weight of the evidence, something which this Court cannot do. MCR
2.613(C); Berger, 277 Mich App at 715.

As the trial court observed, one of the statutory best
interest factors is “[t]he 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.” MCL 722.23(j).

The trial court’s finding that the parties were unable to coparent
and that this affected the parties’ ability to facilitate a close relationship between the
children and the other parent was based on its determinations regarding the credibility of the
witnesses and its weighing of the evidence.

The trial court’s findings were not against the great weight of the evidence, and the trial court properly found that proper cause existed to revisit the custody order.

2. ESTABLISHED CUSTODIAL ENVIRONMENT

Defendant next argues that the trial court erred in ruling that an established custodial
environment existed with respect to plaintiff and in ruling that there was no established custodial environment with respect to defendant. As noted above, whether an established custodial environment exists is a question of fact that this Court must affirm unless the trial court’s finding is against the great weight of the evidence. Berger, 277 Mich App at 706.

“A finding is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction.”

Id. The trial court must address whether an established custodial environment exists before it
makes a determination regarding the child’s best interests. Mogle v Scriver, 241 Mich App 192,
197; 614 NW2d 696 (2000).

“An established custodial environment is one of significant
duration in which a parent provides care, discipline, love, guidance, and attention that is
appropriate to the age and individual needs of the child. It is both a physical and psychological
environment that fosters a relationship between custodian and child and is marked by security,
stability, and permanence.” Berger, 277 Mich App at 706, citing Baker v Baker, 411 Mich 567,
579-580; 309 NW2d 532 (1981).

An established custodial environment exists “if over an
appreciable time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort,” MCL 722.27(1)(c), and “the relationship
between the custodian and the child is marked by qualities of security, stability and
permanence.” Baker, 411 Mich at 579-580.

An established custodial environment may exist
with both parents where a child looks to both the mother and father for guidance, discipline, and
the necessities of life. Foskett, 247 Mich App at 8; Mogle, 241 Mich App at 197-198.

The trial court found that there was an established custodial environment with plaintiff,
but that there was not an established custodial environment with defendant:

[T]he Court finds that there is an established custodial environment with the
Plaintiff in this case. Plaintiff was the children’s primary caregiver from their
birth, staying home with the children while Defendant worked. This arrangement
continued until Defendant’s retirement in 2005. At that time, Plaintiff did return
to work, but she has continued to be a constant, positive presence in the children’s
lives. It is clear that the children look to her for guidance, discipline, comfort and
the fulfillment of their needs.

On the other hand, the relationship the boys have with their father has not
been shown to be of the same positive nature as that with their mother. The boys
have spent more time with their father since his retirement than they did in the
first years of their lives. However, that time has been sporadic and not fostered
the same type of relationship with their father as the boys have with their mother.

The time Defendant shares with the boys is primarily spent engaging in physical
and outdoor activities. It seems that the boys look to their father more as someone
to have fun with than someone who provides them guidance in their lives. While
it does appear that the boys listen to their father’s directives, they seem to do so
because they fear his reactions more than they respect his authority as a parent.

The Court finds no established custodial environment with Defendant.
The trial court’s finding that there was an established custodial environment between the
children and plaintiff was not against the great weight of the evidence. There was evidence that
the relationship between plaintiff and the children had qualities of security, stability, and
permanence. Furthermore, plaintiff’s residence had been the children’s primary residence since
the parties divorced in July 2007, and the children spend the majority of their days and nights
with plaintiff. As for defendant, the evidence does not clearly preponderate towards a finding of
an established custodial environment. According to defendant, the trial court downplayed
defendant’s role in the children’s lives and ignored credible witnesses that positively described
the children’s relationship with defendant. It is true that there was testimony that defendant
loves his children and that he generally exercised his parenting time with the children,
participated with their baseball and school activities, and enjoyed outdoor activities with them,
such as hunting, fishing and golfing. Furthermore, there was testimony that defendant guided
and disciplined the children. However, there was also evidence that tended to show that the
relationship between defendant and the children did not have qualities of security and stability.
For example, there was evidence that defendant sometimes became angry when the children
were present and that his anger affected the children, there was evidence that defendant made
custodial exchanges traumatic, and there was evidence that defendant sometimes did not exercise his parenting time when he was expected to.

Furthermore, there was evidence to support the trial
court’s finding that defendant was the “fun” parent with whom the boys liked to hang out and
have a good time.

To the extent that the trial court’s conclusion that there was not an established custodial
environment with defendant involved credibility determinations and the possible rejection of
evidence presented by defendant, we note that the existence of an established custodial
environment is a factual inquiry, and we defer to the trial court’s determinations regarding the
weight of the evidence and the credibility of witnesses. MCR 2.613(C); Berger, 277 Mich App
at 715. We find that the evidence does not clearly preponderate against the trial court’s findings
regarding the existence of an established custodial environment with respect to plaintiff and the
lack of an established custodial environment with respect to defendant.

The trial court’s findings
were not against the great weight of the evidence, and the trial court did not err in finding that an established custodial environment existed with plaintiff, but not with defendant.

3. STATUTORY BEST INTEREST FACTORS

Defendant next argues that the trial court’s findings with respect to the statutory best
interest factors were against the great weight of the evidence. To determine child custody, the
trial court must consider the statutory best interest factors in MCL 722.23:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties
involved 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.

(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.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(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.

(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 trial court found the parties equal for factors (c) and (f). The trial court found that
factors (a), (b), and (h) favored plaintiff, that factor (d) slightly favored plaintiff, and that factors
(e), (g), (j) and (k) strongly favored plaintiff. The trial court did not inverview the minor
children and therefore did not favor either party under (i). Furthermore, the trial court did not
consider any other factor under (l).

The trial court found in plaintiff’s favor for factor (a). Defendant attacks the trial court’s
finding regarding this factor on the basis that the trial court disregarded the testimony of
unbiased defense witnesses. As the trier of fact, the trial court was in the best position to
determine the credibility of witnesses and determine what weight to give the evidence. MCR
2.613(C); Berger, 277 Mich App at 715. The trial court apparently found the testimony of
plaintiff and her witnesses more credible in this regard than the testimony of defendant and his
witnesses.

The trial court’s finding for factor (a) was not against the great weight of the
evidence.

The trial court also found in plaintiff’s favor for factor (b). The trial court found the
parties’ capacity to continue the education and raising of the children as Catholics to be
significant regarding this factor and found that defendant was “not consistent with delivering the
boys to religious activities during his parenting time.” There was evidence that plaintiff led the
religious training of the parties’ children and evidence regarding defendant’s lack of participation
and involvement in the children’s religious education and even defendant’s inhibition of the
children’s religious training. The trial court’s finding regarding this factor was not against the
great weight of the evidence.

The trial court found that factor (d) slightly favored plaintiff because of the children’s
familiarity with plaintiff’s home. Defendant argues that the trial court failed to note that the
minor children had been spending significant time with defendant in defendant’s new home since
January 2007. This may be true, but the evidence established that the minor children spent the
majority of their days and nights in plaintiff’s home and that the environment in plaintiff’s home
was stable. The trial court did not err in slightly favoring plaintiff under this factor.

The trial court found that factor (e) strongly favored plaintiff. There was evidence that
plaintiff, who had not remarried, was in a long-term relationship with a man and that the man
resided in plaintiff’s home and had a good relationship with the minor children. Defendant had
just remarried the very month of the custody trial. Defendant’s wife was a woman he had met
online. He met her in person for the first time in December 2008 and they spent some time
together for about five weeks from March 25, 2009, until they were married on May 3, 2009.

The minor children spent some time with defendant’s wife during these visits, but she did not
appear to have given a lot of consideration to her role as step-mother to the minor children, as
evidenced by her statement that she “never really thought about being their step-mom.”

Defendant takes issue with the trial court’s conclusion that defendant places little value
on his relationships with women. It can be inferred from certain evidence that defendant places
little value on his relationships with women. There was evidence that defendant called plaintiff
vulgar names, sometimes in the children’s presence, and he apparently dated a woman who he
met online because she lived near an author of books that one of his sons liked to read.

According to defendant, “the only reason [he] wanted to interact with” the woman was to meet
this author. Thus, there was evidence to permit the inference to support the trial court’s finding
that defendant places little value on his relationships with women. Furthermore, given the
evidence, and inferences therefrom, regarding the permanence of the parties’ respective homes,
we conclude that the trial court’s finding regarding this factor was not against the great weight of
the evidence.

Defendant argues that the trial court erred in strongly favoring plaintiff under factor (g),
the mental and physical health of the parties involved. Defendant was disabled from the
military. He described the nature of his disability as including injuries to both knees and his
right shoulder. He also stated that he ingested gas during Operation Desert Storm and that he
had stomach problems and irritable bowel syndrome. Furthermore, defendant testified that he
suffered from depression, anxiety, and post-traumatic stress disorder. In contrast, plaintiff does
not have any significant physical or mental health issues. The trial court’s finding regarding this
factor was not against the great weight of the evidence.

Defendant does not advance any meaningful argument that the trial court erred in
favoring plaintiff under factor (h). “A party abandons a claim when it fails to make a meaningful
argument in support of its position.” Berger, 277 Mich App at 712.

Defendant argues that the trial court wrongfully strongly favored plaintiff under factor (j).
Defendant’s argument in this regard is limited to listing ways in which plaintiff attempted to
undermine defendant’s relationship with the children. We again note that a party waives a claim
by failing to make a meaningful argument in support of his position. Id. To the extent that this
factor depended on credibility determinations, the trial court is in the best position to determine
the credibility of witnesses and weigh the evidence, and this Court must give deference to the
trial court’s superior abilities in this regard. MCR 2.613(C); Berger, 277 Mich App at 715.

Defendant also argues that the trial court erred in strongly favoring plaintiff under factor
(k), domestic violence. According to defendant, plaintiff was the controlling party, and she was
verbally and emotionally abusive. Defendant asserts that even though plaintiff called the police
on several occasions during the marriage, no police complaints were ever filed and defendant
was never charged with domestic violence. There was evidence that defendant blocked
plaintiff’s car with his truck at a baseball game because he was angry at her, that he threatened to
kill plaintiff’s boyfriend, that he was sometimes “volatile,” and that plaintiff had sought help
from law enforcement on four occasions after the parties were separated because of defendant’s
conduct. A woman who saw defendant block plaintiff’s car in at the baseball game later
approached plaintiff and told plaintiff that she worked for a domestic violence and sexual assault
shelter and that plaintiff should call if she needed anything. Therefore, even without evidence of
a criminal complaint or that defendant was charged without domestic violence, the trial court’s
finding regarding this factor was not against the great weight of the evidence.
In sum, the trial court’s findings of fact regarding the best interest factors were not
against the great weight of the evidence.

4. DUE PROCESS

Defendant finally argues that the trial court violated his due process right to a fair
tribunal. According to defendant, the trial court violated his due process rights by failing to hold
a hearing to determine the preferences of the minor children, MCR 722.23(i), and by deferring to
the report of psychologist Dr. Tracy Allan without taking into consideration any of defendant’s
witnesses or exhibits in rendering its opinion.

We review de novo issues of constitutional law. Sinicropi v Mazurek, 273 Mich App
149, 155; 729 NW2d 256 (2006).

The Michigan Constitution and the United States Constitution both preclude the
government from depriving a person of life, liberty, or property without due process of law. US
Const, Am V; Const 1963, art 1, § 17; Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825
(2005). “Parents have a significant interest in the companionship, care, custody, and
management of their children, and the interest is an element of liberty protected by due process.”

In re JK, 468 Mich 202, 210; 661 NW2d 216 (2003). There are two types of due process:
procedural due process and substantive due process. By Lo Oil Co v Dep’t of Treasury, 267
Mich App 19, 32-33; 703 NW2d 822 (2005). Procedural due process requires notice and a
meaningful opportunity to be heard before an impartial decision maker. Mettler Walloon, LLC v
Melrose Twp, 281 Mich App 184, 213-214; 761 NW2d 293 (2008). Substantive due process is
concerned with the arbitrary deprivation of a liberty or property interest. Id. at 201.

The trial court’s rejection of defendant’s witnesses and defendant’s own testimony and
acceptance of plaintiff’s witnesses and evidence did not deprive defendant of his due process
rights. Once again, defendant’s argument is tantamount to a rejection of the trial court’s
credibility determinations. As stated previously, this Court defers to the trial court’s superior
ability to make determinations regarding the credibility of witnesses and the weight of evidence.
MCR 2.613(C); Berger, 277 Mich App at 715. The trial court’s apparent conclusion that
plaintiff’s evidence was more credible or that defendant’s evidence was incredible does not mean
that the trial court failed to consider defendant’s testimony and other evidence. The finder of
fact does not violate a party’s due process rights by finding the party’s evidence incredible or
less credible than evidence presented by the opposing party. Furthermore, the fact that the trial
court may not have mentioned certain portions of defendant’s evidence does not mean that the
trial court failed to consider defendant’s evidence. The trial court need not comment on every
matter in evidence. Sinicropi, 273 Mich App at 180. Defendant’s argument in this regard is
without merit.

In addition, the trial court did not violate defendant’s due process rights by not holding a
hearing to determine the custody preferences of the minor children under MCL 722.23(i). Under
factor (i), the trial court must consider “[t]he reasonable preference of the child, if the court
considers the child to be of sufficient age to express preference.” MCL 722.23(i); Treutle v
Treutle, 197 Mich App 690, 694; 495 NW2d 836 (1992). In this case, the minor children were
eight and ten years old at the time of trial. This Court has stated that children of six years of age
are generally old enough to express a preference. Bowers v Bowers, 190 Mich App 51, 55-56;
475 NW2d 394 (1991). The trial court did not interview the minor children to ascertain their
preferences.

Defendant cites Stringer v Vincent, 161 Mich App 429; 411 NW2d 474 (1987), in support
of his contention that the trial court violated his due process rights by failing to consider the
reasonable preference of the children. In Stringer, which involved the defendant’s petition for
change of custody, this Court stated: “[t]he trial court’s failure to interview the children was
itself error requiring reversal.” Id. at 434. We find Stringer to be distinguishable from the
instant case, however, because in Stringer, the trial court made a custody decision without
holding an evidentiary hearing at all, on the basis of the pleadings and a friend of the court
report, which the parties had not agreed could be considered as evidence. Id. at 432-433. We
reversed because of the trial court’s failure to hold an evidentiary hearing and consider the best
interest factors. Id. at 433. In so doing, we stated: “[t]he trial court could not have considered
the eleven factors set out in the definition of a child’s best interests since it had been presented
with no evidence.” Id. Unlike the facts in Stringer, in this case, the trial court held an
evidentiary hearing and considered the best interest factors and made findings regarding those
factors. Although the trial court did not ascertain the children’s preference under factor (i), it
found most of the best interest factors favored plaintiff (and that four factors “strongly” favored
plaintiff) and that the parties were equal for two factors. Significantly, the trial court did not find
in defendant’s favor for any of the best interest factors. The trial court’s holding of an
evidentiary hearing and consideration of the best interest factors in the instant case distinguishes it from Stringer.

Furthermore, in requiring the trial court to interview the children to determine
their preference in Stringer, this Court noted that its statements regarding factor (i) were made
only “to provide guidance to the trial court on remand.” Id.
More recently, this Court has held that the trial court’s failure to consider the preference
of the child under factor (i) does not require reversal if the parties did not ask the trial court to
speak to the child regarding his or her preference and the child’s preference would not have
changed the trial court’s ruling. Sinicropi, 273 Mich App at 182-183. In Sinicropi, we stated:
[Defendant] also takes issue with the fact that the trial court did not
consider the child’s preference under factor i (child’s preference). The trial court
stated that it could not consider the child’s preference because none of the parties
presented him for an interview. We note that the parties stood mute when the trial
court made this statement, and there is no indication in the record that [defendant]
wished or requested that the trial court speak to the child regarding his preference.
This fact distinguishes the case from Flaherty v Smith, 87 Mich App 561, 564-
565; 274 NW2d 72 (1978); Lewis v Lewis, 73 Mich App 563, 564; 252 NW2d
237 (1977), and In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550
(1975), in which the trial court either declined or refused to interview the children
on request. We recognize that “[a] trial court must consider, evaluate, and
determine each of the factors contained in [MCL 722.23]” when determining a
child’s best interests. Mann v Mann, 190 Mich App 526, 536; 476 NW2d 439
(1991).

Assuming that the child, who was six years old when the custody hearing
was conducted, was of sufficient age to express a preference, and assuming that
the trial court erred in not interviewing the child when neither party apparently
wished to have the child appear, reversal is not warranted because had the child
expressed a preference, it would not have changed the trial court’s ruling, given
the court’s overall statements and strong feelings regarding what was best for the
child . . . . [Sinicropi, 273 Mich App at 182-183.]

The facts of the instant case are similar to the facts in Sinicropi. In this case, there is no
indication that defendant presented the minor children to the court for an interview.2 Moreover,
there is no indication that the trial court declined or refused to interview the children on request.
In addition, even if defendant had asked the trial court to speak with the minor children to
ascertain their preference, in the present case, like in Sinicropi, the trial court’s findings
regarding the other best interest factors and statements regarding the best interests of the children indicate that the minor children’s preference would not have changed the trial court’s ruling.


In the present case, the trial court did not find any of the best interest factors in favor of plaintiff.

Moreover, even if the children had articulated a preference to be in the custody of defendant, the
best interest factors need not be given equal weight, McCain v McCain, 229 Mich App 123, 131;
580 NW2d 485 (1998), and a child’s preference does not automatically outweigh all other best
interest factors, Treutle, 197 Mich App at 694, which the trial court found primarily in favor of
2 There is an indication that defendant wished to have the trial court speak with the minor
children regarding their preference even though he did not present them to the trial court for an
interview. On the record on the last day of trial, May 28, 2009, the trial court stated that in lieu
of closing arguments, it wanted the parties to prepare written proposed findings of fact and
conclusions of law. The trial court stated that it would give the parties 14 days to prepare these
closing briefs, which would have made them due on June 11, 2009. Thereafter, counsel for
plaintiff advised the trial court that school for the minor children was out on June 12 and that
plaintiff “would appreciate any speed that you could lend to the decision, especially as it relates
to the summer break parenting time.”

The trial court then stated that it was willing to shorten the
timetable to facilitate an earlier decision, but counsel for defendant made comments that
indicated that it would be difficult for her to complete the document any earlier than June 11,
2009. The trial court ultimately left the June 11, 2009, deadline intact, and defendant filed his
closing brief with the trial court on June 11, 2009. In his closing brief, defendant asserted that
“the preference of the children should be determined by this court.” Under the facts of this case,
such a statement, assuming that it constitutes a request that the trial court speak with the minor
children to ascertain their preference, is not a timely request for the trial court to interview the
minor children to ascertain their preferences, when there is no evidence that defendant had the
children available so that the trial court could speak to them that day, and defendant knew that
the children would be out of school on June 12, and knew that the trial court desired to issue its
decision before that date. In fact, the trial court issued its order and opinion on June 11, 2009,
and defendant’s brief on appeal indicates that the trial court actually rendered its opinion before
receiving defendant’s closing brief, although it is impossible to verify this because there is no
time stamp on either the closing brief or the opinion. Significantly, defendant’s motion for
reconsideration did not include any argument regarding the trial court’s failure to ascertain the
minor children’s preference under MCL 722.23(i).
plaintiff.

The trial court did not violate defendant’s due process rights by not interviewing the
minor children to determine their preference under factor (i).

III. CONCLUSION

In sum, the trial court’s findings regarding the existence of proper cause to revisit the
custody order were not against the great weight of the evidence. In addition, the trial court’s
findings regarding the existence of an established custodial environment with respect to plaintiff
and defendant and regarding the best interest factors also were not against the great weight of the evidence.

Finally, the trial court did not violate defendant’s due process rights by making
credibility determinations in plaintiff’s favor and by not interviewing the minor children to
determine their preference.

Affirmed. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Richard A. Bandstra
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
 
[1]
http://www.cbsnews.com/8301-31749_162-20007284-10391698.html

Posted here by
Terry Bankert
http://attorneybankert.com/
or http://dumpmyspouse.com/

The Toadies

by ValorieBadgett @ Barn And Log Homes

The Toadies Event on 2017-10-12 21:00:00 with Local H Its been 23 years since the Toadies started playing rock music in Fort Worth, Texas, but even the band will admit that the road theyve taken over that lengthy period of … Continue reading

The Toadies is a post from: Barn And Log Homes

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