M I C H IG A N FAMILY LAW JOURNAL A PUBLICATION OF THE STATE BAR OF MICHIGAN FAMILY LAW SECTION • HON. RICHARD B. HALLORAN, CHAIR
EDITORS IN CHIEF: ANTHEA E. PAPISTA & AMY M. SPILMAN
EDITORIAL BOARD: DANIEL B. BATES, SAHERA G. HOUSEY, SHON COOK & JAMES W. CHRYSSIKOS ASSISTANT EDITORS: LISA M. DAMPHOUSSE, RYAN M. O’ NEIL, SHELLEY R. SPIVACK, KIANA E. L. FRANULIC, & ASHISH S. JOSHI
VOLUME 47 NUMBER 5 MAY 2017
C M ...... 1 By Hon. Richard B. Halloran, Family Law Section Chair 2016-2017 ...... 2 By Sahera Housey and Ryan M. O’Neil J S O B I W P A O C ...... 3 By Hon. David Newblatt W M D’ W ...... 5 By Shon Cook T I D : T I D A H R I T ...... 8 By Melissa Baumgartner N- P (D’ C R P ) 12 By Danielle J. Hagaman-Clark T C I ...... 15 By Henry S. Gornbein P L ...... 17 By Harvey I. Hauer and Mark A. Snover T P R ...... 19 By Joshua Pease V S M I L P S F ...... 22 By Joseph W. Cunningham M S : A C I I ...... 24 By Mark E. Sullivan R P U C ...... 26 Summarized by the State Bar Family Law Council Amicus Committee Members L U ...... 32 By Stephanie Johnson O A : FOC P C T Y L S ...... 34 Advertise in the M I C H IG A N FAMILY LAW JOURNAL Ten times per year, the Michigan Family Law Journal S B M reaches: Family Law Section • Over 3,000 State Bar of Michigan members directly • Various courts and law libraries • Specialized nancial professionals • State and local public of cials Mission Your ad for services or products – or your political ad – targets people you want most and need to reach. The Family Law Section of the State Bar of Cost of ad per issue: $350 –full page Michigan provides education, information, $200-half page $175-quarter page and analysis about issues of concern $100-eighth page through meetings, seminars, its website, Prepayment for 10 issues receives a 5% discount public service programs, and publication For details contact: Kristen L. Robinson of a newsletter. Membership in the Section c/o Mellin Robinson, PC is open to all members of the State Bar of 1755 W. Big Beaver Road Troy, MI 48084 Michigan. Telephone: (248) 614-9005 Fax: (248) 614-9095
List of Council Meetings*
June 3, 2017 *All regular, monthly Council meetings start at 9:30 a.m. on Saturdays University Club, Lansing and are preceded by a breakfast buffet starting at 9:00 a.m. The Annual Meeting customarily starts at 9:00 a.m. with breakfast buffet at 8:30 a.m. Family Law Section members who are not Council members are welcome September 28, 2017 at 1:00 p.m. at all Council meetings. However, if you know you are going to attend a Cobo Hall, Detroit meeting, kindly send an e-mail in advance so we are sure to have plenty of space and food. If a presenter or member wishes access to audio-video equipment, please let us know 7 days in advance.
—Hon. Richard B. Halloran; [email protected]
2016-2017 Family Law Section Officers and Council Members Chair: Expires 2017 Expires 2018 Expires 2019 Hon. Richard B. Halloran Shon Cook Daniel B. Bates Elizabeth K. Bransdorfer Chair-Elect: Hon. Richard B. Halloran James W. Chryssikos J. Matthew Catchick, Jr. Kent L. Weichmann Shelley A. Kester Christopher J. Harrington Sahera G. Housey Treasurer: Mathew Kobliska Kristen L. Robinson Jennifer Johnsen Robert Charles Treat, Jr. Vanessa Marie Moss-Wilson Corresponding Secretary: Robert Charles Treat, Jr. Peter Michael Kulas Elizabeth K. Bransdorfer Steven D. Reinheimer Randall L. Velzen Anthea E. Papista Recording Secretary: Amy M. Spilman Hon. Tina M. Yost Kent L. Weichmann Sahera G. Housey To update
L A Family Law Section Lifetime Achievement Award Winners ...... 7 Kristen L. Robinson, Mellin Robinson PC—Family Law Mediation ...... 10 ICLE—Family Law Certicate Program ...... 11 Henry Gornbein, Lippitt O’Keefe Gornbein, PLLC —Family Law Mediation...... 16 Scott Bassett—Michigan Family Law Appeals ...... 18 Troy Psychotherapy ...... 19 Great Lakes Honor Roll ...... 20 Family Law Section Summer Conference—Register Now! ...... 23 Laurel Stuart-Fink, PLLC—Domestic Relations Appeals ...... 28 Attorney Robert Treat, QDROExpress LLC ...... 29 Family Law Political Action Committee ...... 31
Letters to the Editor
The Michigan Family Law Journal welcomes letters to the Editor. Typed letters are preferred; all may be edited. Each letter must include name, home address and daytime phone number. Please submit your letters, in Word format, to the Chair of the Family Law Section, Hon. Richard B. Halloran, c/o State Bar of Michigan, Michael Franck Building, 306 Townsend Street, Lansing, MI 48933, [email protected]
The Michigan Family Law Journal Endeavors to Establish and Maintain Excellence in Our Service to the Family Law Bench and Bar and Those Persons They Serve.
Co-Editors in Chief: Anthea E. Papista • Amy M. Spilman Editorial Board: Co-Editors of Outside Articles: Daniel B. Bates • Sahera G. Housey James W. Chryssikos • Amy M. Spilman Shon Cook • James W. Chryssikos Hot Topics Co-Editors: Assistant Editors: Sahera G. Housey • Ryan M. O’Neil Lisa M. Damphousse • Ryan M. O’ Neil Shelley R. Spivack • Kiana E. L. Franulic • Ashish S. Joshi
The views, opinions and conclusions expressed in this publication are those of the respective authors and do not necessarily re ect the position or opinion of the Family Law Section of the State Bar of Michigan. FAMILY LAW SECTION “LISTSERV” (E-mail Discussion Group)
The Family Law Section sponsors a “listserv,” which is “geek-speak” for an e-mail discussion group. To be eligible to join, you must be a member of the Family Law Section or be a Michigan judge. If you are eligible and wish to participate (it is a wonderful opportunity to share ideas and solve problems, not to mention communicating with many ne colleagues), you may initiate your subscription to the Familylaw listserv by going to http://groups.michbar.org/ and click on FamilyLaw. Once there, ll out the form under “Subscribing to FamilyLaw” and follow the instructions. If you have questions, contact Elizabeth A. Sadowski at [email protected], or call her at (248) 652-4000. To All Prospective Family Law Journal Authors:
On behalf of the Family Law Council, we are encouraging our membership and readers to consider submitting an article to the Family Law Journal.
Article Contact Person: The primary contact person at the State Bar for Journal articles is Sue Oudsema (517) 367-6423 and [email protected]. Article submissions should be e-mailed to Sue in Word format. Please carbon copy Anthea Papista ([email protected]) and Amy Spilman (spilman@ emsfamilylaw.com) and write “Article for the Family Law Journal” in the subject line when you submit your article.
Article Due Date is One Month in Advance: Please submit your articles to Sue Oudsema at her email address above no later than the 15th day of the month preceding the next publication. In other words, if you wish to have your article considered for publication in Februrary, please have your article to us by January 15th. There are ten (10) published Family Law Journal issues each year. June/July and August/September are combined issues.
Formatting and Links: Consistent with the State Bar Journal’s practice, our formatting resource guide is The Chicago Manual of Style (see www.chicagomanualofstyle.org). Please use endnotes for citations. Feel free to include links in your endnotes, which will permit the reader to click and then be directed to the original source or reference.
Peer Reviewed: Authors are expected to have engaged another attorney to carefully review, critique, and edit articles before sending to the Family Law Journal for consideration.
Bio & a Picture Please: All authors are requested to submit a short biography not to exceed 100 words (similar to the Bar Journal) and photo to Sue in conjunction with your article.
Please Notify: If you are a first time author and wish to submit an article for possible publication, please advise Anthea Papista or Amy Spilman. Please include a detailed description of your topic.
Editorial Board Discretion: The Editorial Board reserves the right to accept, reject, and edit all submitted articles and Letters to the Editor. We shall endeavor to communicate any necessary substantive changes to the author in advance of publication.
Very Truly Yours, Anthea E. Papista and Amy M. Spilman Journal Committee Co-Chairs C M
B H. R B. H , F L S C -
It is the beginning of May, and yet Spring seems to have expressing the opinion that he has seen possibly only four or already come and gone, and with the cool temperatures we ve real cases of domestic violence. have moved into Fall. Fall is when I step down as Chair of e Michigan Judges Association has asked for this type the Family Law Section, and this chilly spring day has me of training to be given to all judges in the state, and I hope stopping and reviewing what I hoped to accomplish during that the State Court Administrators Oce and the Michigan my tenure as Chair. Judicial Institute will soon make this training a requirement. One of the biggest things I still hope to accomplish is In the current court scenario where judges are assigned motivated by my years of work in the area of domestic abuse. to various divisions, the citizens and families of Michigan I have been an advocate for survivors of domestic abuse since will be best served when we require all of our circuit, district, my days as a Magistrate at 36th District Court in the 90’s. Back probate judges, magistrates and referees to be trained in the then, I served as co-chair of the Wayne County Coordinating dynamics of domestic abuse—just as we require this training Council Against Domestic Violence and I helped create the for our mediators. rst domestic violence court at 36th District Court. I was also appointed to the Michigan Domestic Violence Prevention and Treatment Board by the Governor before he appointed me to the ird Circuit Court in 1998. e Governor also appointed me to a task force that created standards for batterer’s programs in the state. As a circuit court judge, I created the Personal Protection Order Docket in Wayne County Circuit Court, and for ve years I was the judge in Wayne County who issued PPOs. I was instrumental in creating the Solution Oriented Domestic Violence Prevention Court (SODVPC) at ird Circuit Court to help deal with high lethality domestic abuse cases. I say all of this about my experiences with domestic abuse because it frustrates me that I have not been able to get mandatory training for the judges in our state on the dynamics of domestic abuse. Many states mandate this type of training for all judges. However, while we train judges on the law in Michigan, we do not mandate training on what abuse actually is and the dynamics of an abusive relationship. I also nd it interesting that our court rules require all domestic mediators to have at least eight hours of training on the dynamics of abuse, but there is no such requirement for our judges. Too many judges still think there has to be physical violence for there to be abuse. ey do not understand that domestic abuse is about power and control in the relationship, not necessarily “who-hit-whom!” I have even heard of one judge in our state (who has heard PPO cases for years)
M M F L J 1 W ’ H
The Out of Staters Submit your Hot Tip to Sahera Housey (houseys@ oakgov.com) and Ryan O’Neil ([email protected]). Where should a litigant le a custody action where both parties share custody but live in dierent jurisdictions? Sahera G. Housey is currently a Referee at the When unmarried parents have signed an Acknowledg- Oakland County Friend of the Court. Prior to ment of Parentage, the only court with child custody juris- becoming a Referee, Sahera specialized in Family diction is the county where the minor child resides with the Law, Estate Planning and Probate Law. She obtained Mother. After the AOP is signed by the parties, the Mother her undergraduate degree from the University of has initial custody without prejudice to the determination Detroit and her Juris Doctor from the University of of either parent’s custodial rights, until otherwise deter- Detroit Mercy School of Law. mined by the court or otherwise agreed upon by the parties Sahera is a council member of the State Bar of Michigan Fam- in writing and acknowledged by the court. MCL 722.1006. ily Law Section; a member of the Oakland County Bar Association See Kubiak v. Steen, Mich App 408, 412-413, 215 NW2d Family Court Committee and former chair of the committee; an 1955 (1974) (circuit court had jurisdiction under Child Cus- Oakland County Bar Foundation member, State Bar of Michigan tody Act even though child “was found” in another county). foundation member; co-Liaison for the OCBA Legislative Commit- See also Bert v. Bert, 397 NW2d 270, 154 Mich App 208 tee; co-editor of the State Bar of Michigan Family Law Journal; (1986), where the Michigan Court of Appeals ruled that current President of the Referees Association of Michigan (RAM); “resides” refers to the “personal, actual, or physical habitation” Immediate Past President of the Michigan Inter-Professional Asso- of the child. e purpose of requiring ling in the county ciation on Marriage, Divorce and the Family, Inc.(MIPA); and a where the child “resides” is to limit litigation to “where the member of the Chaldean American Bar Association. child can be found or actually lives,” so that the child’s per- sonal life will be subjected to the least disruption over the du- Ryan M. O’Neil is a 2005 graduate of the ration of the suit. Kubiak, supra, p. 414, 215 NW2d 195. University of Michigan where he earned a B.A. in If an action is led under the Uniform Interstate Family English and American History. Mr. O’Neil earned Support Act (“UIFSA”) in the state where the non-custodial his Juris Doctorate from the Western Michigan parent resides, then the Court can only address child support. University Cooley Law School and was admitted MCL 552.2104(2)(b). If the non-custodial parent wants to to the State Bar of Michigan in 2008. He is also address custody and/or parenting time, he/she must le an licensed to practice law in the United States District Court - Eastern action under the Uniform Child Custody Jurisdiction and District of Michigan. Enforcement Act (“UCCJEA”) in the state where the minor Mr. O’Neil currently serves as a Friend of the Court Referee in child resides. Oakland County. He is a former chairperson of the Oakland County Bar Association Family Court Committee. He serves as a district Special thank you to Jeanne Hannah and Chris Campbell court case evaluator for Oakland County. He is a member of the from Traverse City, Tanisha Davis, South eld, and Victoria Family Law section of the State Bar of Michigan, the Oakland Radke, Escanaba for their contribution to this month’s Hot Tips County Bar Association, the Macomb County Bar Association, and column. the incorporated Society of Irish American Lawyers. Mr. O’Neil co- authored several articles in the Oakland County Bar Association publication Laches.
2 M F L J M J S O B I W P A O C
B H. D N
Normally there are two ways to resolve a court case: settle- son for becoming involved. In Troxel v Granville, 530 US 57, ment or trial. For child custody, however, there is a wrin- 120 S Ct 2054, 147 L Ed 2d 49, the Supreme Court held kle when parents want to settle. Michigan law requires that that, “so long as a parent adequately cares for his or her chil- judges independently determine that custody agreements are dren (i.e., is t), there will normally be no reason for the State in children’s best interests before signing an order. How they to inject itself into the private realm of the family to further are to do this is unclear and judges have dierent practices. I question the ability of that parent to make the best decisions assert that judges can sign stipulated custody orders without concerning the rearing of that parent’s children.” Id., at 68-69. a hearing so long as they can ascertain best interests from a In other words, as the Supreme Court later explained, “the sworn statement of the parents. Due Process Clause does not permit a State to infringe on the e seminal case of Harvey v Harvey, 470 Mich 186, 192 fundamental right of parents to make child rearing decisions (2004), interpreted the Child Custody Act to “impose on the simply because a state judge believes a ‘better’ decision could trial court the duty to ensure that the resolution of any custody made.” Id., at 72-73. erefore, “[t]here is a presumption that dispute is in the best interests of the child.” Judges must do t parents act in their children’s best interests.” Id., at 69. something to “satisfy” themselves. Although Harvey acknowl- Given Troxel’s presumption, there are only three scenarios edged that, “[w]hen the court signs the order, it indicates that warranting intense judicial scrutiny in domestic cases involving it has done so,” Id., at 193, as with middle school math stu- custody. I call these “Troxel problems.” e rst is obvious: if dents, judges must show at least some of their work. ey parents disagree, the court must decide. Second, if parents are can’t “blindly accept the stipulation of the parents, but must unt, the presumption doesn’t apply. Finally, if the parents’ cus- independently determine what is in the best interests of the tody agreement is clearly and convincingly not in the children’s child.” Phillips v Jordan, 241 Mich App 17, 21 (2000). best interests, the presumption would be rebutted. erefore, At the same time, the United States Constitution gives other than for disagreements, untness or parental decisions parents the right to make decisions about their children with- that are clearly against the children’s best interests, Troxel re- out governmental interference unless there is a legitimate rea- quires judicial deference to parents’ custody decisions.
M M F L J 3 Where a judge is unaware of a Troxel problem, how rigor- I assert that judges can do this with custody agreements ously must he or she dig to unearth one? I assert that intense where there are no apparent Troxel problems by reviewing a scrutiny for all custody agreements is both unnecessary and sworn statement from the parents establishing three things. futile. First, they are both t parents. Second, whether or not the It is unnecessary because parents’ involvement in domes- agreement changes custody, the parents believe it to be in their tic relations litigation is not, by itself, indicative of untness children’s best interests. Finally, the agreement is an exercise of or bad decision making. ere is no more reason to seek out their fundamental constitutional right to parent. bad parenting in the courthouse than there is for CPS to visit When parents agree on custody, a judge’s nding of t- every house in the neighborhood. If there is a problem, it can ness, best interests and constitutional prerogative based upon be pled or motioned up. Otherwise, intense scrutiny in every the sworn statement of parents can be an appropriate dis- case is, in constitutional parlance, overbroad. It is a search charge of the duty imposed by the Child Custody Act. Of through thousands of haystacks without the hint of a needle. course, judges have discretion to do more. But to require it in It is futile as we have no plausible way of nding any all cases, regardless of the existence of a Troxel problem, would needles. is is because, when parents agree, the judge is de- be an elevation of form over substance. prived of the adversarial process. e parents, who just want the judge to sign the order, are incentivized to make each other look good and gloss over all the bad stu. e judge won’t hear about the cocaine habit or domestic violence charge. He About the Author or she would have to drag it out in a Herculean inquisitive ef- David Newblatt is the Presiding Judge of Genesee County fort. Harvey doesn’t require judges to do this. Family Court. He has been a family court judge since 2004. He Rather, Harvey allows for a cursory approach, giving def- presides over two specialty courts: Infant and Toddler Treatment erence to parents. It made clear that it wasn’t requiring judges Court (Baby Court) and Girls Court. He is on Twitter as @ to “conduct a hearing or otherwise engage in intensive fact- DavidNewblatt. nding.” So long as the record contains at least some indica- tion of best interest consideration beyond nding agreement, judges are on solid ground. In Koron v Melendy, 207 Mich Endnote App 188 (1994), the Court of Appeals allowed the trial court 1 e post-Harvey case of MacIntyre v MacIntyre, 264 Mich App to accept an agreement without “expressly articulat[ing] each 690 (2005) (judgment reversed in part, case remanded to the of the best interests factors,” noting that its determination of Court of Appeals for reconsideration regarding the trial court’s best interests was implicit. Koron acknowledged “this state’s ndings for its custody determination), discussed a court’s obli- public policy to encourage voluntary agreements between the gation to determine best interests when parties agree. Id at 695. parties in domestic relations matters.”1 We want to encourage e MacIntyre Court cited with approval Sirovey v Campbell, cooperation, respect privacy and achieve economy. 223 Mich App 59 (1997), which in turn cited Koron v Melendy, So where are we? First, Harvey requires that judges in- 207 Mich App 188 (1994). See MacIntyre, 264 Mich App at dependently determine best interests. Second, Troxel limits 695. e MacIntyre Court also cited Napora v Napora, 159 scrutiny to cases where there are disagreements, untness, or Mich App 241 (1986), which recognized that, although courts must determine best interests, “stipulations are favored by the parental decisions that are clearly not in the children’s best judicial system and are generally upheld….” MacIntyre, 264 interests. ird, while judges are good at reacting to Troxel Mich App at 695 n 13. problems brought to their attention, proactive searches are un- necessary and futile. Finally, judges have discretion as to how they “satisfy” themselves regarding best interests.
4 M F L J M MEDIATION MATTERS W M D’ W
B S C
As a mediator and an attorney who participates in media- might reect similar values or beliefs can be reassuring. And, tion on a regular basis, I love mediation. I prefer talking through the personality of the mediator is important. ere are some issues and nding resolutions that are creative and t each indi- clients, where a strong mediator, who is less facilitative and vidual, rather than the tedious and combative methods of liti- more directive, can be helpful and cut through the inght- gation. But, there are times mediation does not work and can ing and negativity of some clients. Other times, the unending lead to even further distance between the parties’ positions and patience of a facilitative mediator will be the key to resolution. increase conict. If practitioners and mediators want resolution at the table, they all need to prepare better for the process. The Wrong Mediation Brief is Submitted
Mediation is Done at the Wrong Time I cannot say this enough: mediation is not the time to submit a brief that lays out all the sins of the parties. e par- e scheduling orders created by many courts will man- ties know their history and defects. No one needs to see it in date mediation in the very early stages. e desire to meet print and be reminded of their faults when it is the time to SCAO timelines, especially on DO cases will often result in reach resolution. Time and time again, I am handed media- mediation being ordered within the rst sixty days. In many tion briefs less than twenty-four hours before a mediation that cases, this is too early to have successful discussions at the me- are full of spurious and spiteful allegations. Clients then are diation table. If there has been an aair, if it is a long-term given these briefs and have little time to process or discuss the marriage, or there have been other traumatic events during representations. e very personal attacks on individuals break the marriage, it may be that one party (or both) have not had down all trust between the parties and the attorneys. Clients enough time to process or grieve the loss. Forcing people to also feel that if the mediator knows these very personal details the table (even in shuttle diplomacy), without time to heal, there is likely to be bias from the mediator. can spell disaster. A mediation brief should give basic facts of assets: liabili- ties, incomes, marriage length, and details about children. The Wrong Mediator is Chosen ere should be procedural history and information about controlling orders. ere is no reason to go through the cus- If the parties do not agree to a mediator, then the next tody factors, the spousal support factors or cite case law or person on the court list is assigned by the mediation clerk. statutes. When relevant, issues surrounding these factors can is results in the luck of the draw. All mediators on the court be disclosed in caucus or discussed at the table. ere is never list have taken the training. Not all have experience with fam- a need to throw mud at the wall in the mediation brief and cre- ily law. Not all are attorneys. Not all have experience in your ate more conict before the parties even sit down at the table. court system or with your judge. And, frankly, some mediators are more concerned about telling your clients what to do than Mediation is Explained in the Wrong Way having the clients nd solutions that work for them. Wait- ing for the court to choose a mediator can often result in the I am still surprised by how many mediators make no con- wrong mediator for the wrong case. tact with the attorneys or parties prior to mediation. e me- Using the same mediator for every case is also not the an- diator does not explain how he/she conducts mediation, the swer. For instance, maybe you have a female judge and two time frame, the expense, or the materials the mediator wants female attorneys representing the parties. It might be good to review. A mediator should send a letter to every participant to give some balance to the case, and make the husband feel in the mediation, explaining clearly the function of media- like he will be heard by choosing a male mediator. Perhaps, tor, the mediator’s role, the condentiality and the expense the parties are of a dierent ethnic background or race than of the mediation. en, at every mediation, the mediator the attorneys or judge. Again, having a face in the room that should begin the mediation by again explaining these issues
M M F L J 5 and insuring a signed agreement to mediate has been fully tions are stated, and history of the parties is revealed. A simple understood by the parties. discussion about whether the house will be listed can result in I am even more surprised at how may attorneys do not a 20-minute discussion about the history of renovations and explain to clients what will happen at mediation and how the kids living there. So often, mediators and attorneys are quick process will be conducted. Often attorneys will not appear with to dismiss these conversations because they do not view them their clients at mediation. Unrepresented litigants or litigants as productive. Parties that can share positive history together whose attorneys choose not to appear will come to mediation have a bond that can result in agreements. I have watched with the impression that the mediator will actually tell them many times as attorneys will literally tell their clients not to what to do and create an order or decide their case. What me- talk about that, or will tell their clients to “shut up.” I have diators and attorneys are telling the clients is essential to man- also watched mediators stop conversations and change topics age expectations and relieve anxiety over the process. to avoid the moment in history. When we shut down the history and thoughts of the par- Attorneys and Clients are NOT Prepared ties, we are literally shutting down the process. e court- room is meant to be limiting. ere are only questions asked Many attorneys and clients come to the mediation com- and corresponding answers given. But, so often a party’s ex- pletely unprepared. In doing that, they fail to have the basic planation is necessary to understanding why someone won’t information that is necessary to identify and resolve the is- let go of the cross-stich sh, or just refuses to engage in any sues and valuable billable time of the attorneys and media- decision making or negotiation. Sometimes, until that history tor are wasted. Valuations on real and personal property, debt is discussed or the connection over a memory is made, parties amounts and a list of personal property should be prepared can’t move forward to an agreement. in advance of mediation. Parties should come with W-2s, tax returns and current year-to-date income information. Parties Clients are Prepared for War and not Peace should have values on retirement plans and investment and bank accounts. It is the job of the mediator to explain what Many clients and attorneys see the mediation process as information will be needed to move the mediation forward an attempt to get even, lash out or try to overpower the medi- and the job of the attorneys and parties to have that informa- ation with one agenda. I have seen attorneys and parties use it tion available before mediation occurs. as their own opportunity to swipe barbs at each other, rather than focus on the issues of the clients. I have also watched Attorneys Litigate, Rather than Mediate attorneys use the mediation as part of the discovery process, engaging in interrogation of the opposing party. Mediators don’t decide cases. So, why are attorneys argu- ere is no doubt that some conict can be cathartic and ing their legal and factual positions to the mediator? Attorneys lead to resolution. However, it is not the forum to engage in who continually state, “e Judge would never do that”, or cite another step of the parties’ personal warfare or the grievances case law and statutes, do not understand that mediation is de- of opposing parties. e mediator, as well as the parties and signed to allow parties to resolve their conicts outside the legal their attorneys, need to be aware of the goal of the mediation, process. e whole idea is that a resolution is reached without which is to nd common ground and solutions. e use of a judge having to do anything, because it is what is best for the caucus, shuttle diplomacy and simple breaks in the process parties. Attorneys who are continually arguing a legal position, can be powerful mechanisms to re-focus the mediation and defeat the process and purpose of mediation. aect a positive outcome. A good attorney will ask questions that help clients and the other party to understand. ey should not be attacking Mediated Agreements are Done Wrong or combative. Often when I hear a client say they want joint custody, but work third shift, I simply ask, “How will that Mediation can result in partial agreements, but the scope work, who will watch your child, where would this occur how of those agreements must be clearly articulated in the medi- much would this cost?” Questions like that provoke thought ated agreement. If the mediated agreement does not resolve and solution, rather than back someone into a corner. all issues, the agreement should say what is reserved. If the mediation does resolve all issues between the parties, the Parties Ability to Discuss History and Details is agreement should have a provision state that “this is the com- Discounted plete agreement of the parties and resolves all issues.” When a partial agreement is reached, the agreement must be clear In general, mediation is much more ecient than decid- regarding what is agreed to and what remains at issue, or cli- ing contested issues in the courtroom. However, it can be ents may believe that all issues are resolved. For instance, if a tedious and slow, as documents are discussed, parties’ posi- pension plan is not mentioned and not reserved, then it may
6 M F L J M be believed it belongs to the owner of that retirement plan. About the Author If spousal support is not specically waived in the mediation Shon Cook has been practicing family law for twenty years agreement, by statute it is reserved, which will again create and is nally starting to get it right. With a combination of hu- confusion for litigants. Many self-represented litigants will mor, negotiation, decent people skills and the ability to still throw simply attach the mediated agreement to their judgment of down a good legal objection or two, Shon has deemed herself “ e divorce, or copy it to a new form. When the mediated agree- Good Witch of the Law.” Shon is determined to help people in a ment is not clear about its scope, it leaves outstanding issues positive way get through the worst times of their life and give back and can be the subject of appeal. some respect and dignity that the legal process seems to erode. Shon Mediation doesn’t work if the participants fail to prepare, is the owner of Shon Cook Law, PC, which operates out of a very mentally, emotionally and with the correct information avail- cool building in Whitehall, Michigan, which was the rst library able. It simply creates misunderstanding and a greater divide. in the city. Shon Cook Law, PC has a total of three attorneys e key to making mediation work is recognizing its purpose covering Family Law, Bankrutpcy, Estate Planning, Real Estate and the methods that will support the mediation process, not and Business Formation. destroy it.
FAMILY LAW SECTION Lifetime Achievement Award Winners
1988–Norman H. Robbins 2001–Edward D. Gold 2012–Jon T. Ferrier 1988–Maxine Board Virtue 2003–Fred Morganroth 2014–John F. Mills 1991–Hanley M. Gurwin 2005–Katherine L. Barnhart 2016—Joseph W. Cunningham 1994–Henry Baskin 2009–Ronald Bookholder 1999–Richard S. Victor 2011–Justice Marilyn Kelly
e Family Law Section expresses its gratitude and appreciation for those extraordinary family law attorneys whose dedication, contributions, and leadership earned them the highest honor in Family Law: the Family Law Section Lifetime Achievement Award.
M M F L J 7 T I D : T I D A H R I T
B M B
An often-overlooked area of family law lies at the nied, 461 Mich 1205, 602 NW2d 576 (1999), cert denied, intersection of divorce and estate planning and, in particular, 529 US 1018 (2000) (income from trust established before in issues involving trusts in divorce matters. While as family marriage as separate property); Piche v. Piche, unpublished law practitioners, we may regularly encounter arguments opinion per curiam of the Michigan Court of Appeals, issued regarding a spouse’s separate property interests as a beneciary October 21, 2009 (Docket No. 287835) (property rights held to a trust, less often we encounter issues involving jointly by an irrevocable family trust cannot be adjudicated or be sub- created revocable or irrevocable trusts. Quite often our ject to distribution in divorce). It follows that the individual clients do not fully understand the potential impact of a trust interest of a party as a beneciary of a trust is deemed separate on their ability to eectuate the property division in their property for purposes of division of marital assets in a divorce divorce proceedings that they originally contemplated, nor proceeding. ese general principles are, of course, subject to do they appreciate the long-term ramications should these the rules regarding reclassication of separate property based on issues not be properly addressed. commingling or appreciation and the potential for invasion of separate property pursuant to MCL 552.23 or MCL 55.401. Trust Basics Revocable Living Trusts and Divorce e individual who creates the trust is known as the “grantor” or “settlor.” Within the trust document itself, the What happens when you are no longer dealing with a grantor(s) will identify: (i) who will serve as the initial and spouse’s separate property claims to an interest in a trust, but successor trustees; (ii) the designated lifetime and at-death rather a scenario where your divorce client shares an interest beneciaries; and (iii) the specic terms of the trust. Trusts with his or her spouse in a revocable living trust and the assets created during a grantor’s lifetime are often referred to as “liv- held in trust need to be divided in the divorce proceedings? ing trusts” and trusts formed through a last will and testament is section specically addresses revocable trusts. A revocable and which begin after death are referred to as “testamentary trust is a trust created and funded during the grantor’s lifetime. trusts.” e important process of transferring assets into the As the name implies, revocable trusts are fully revocable at the trust is referred to as “funding” the trust. Assets must be con- request of the grantor. Under the Michigan Trust Code, MCL veyed into the trust to ensure trust ownership. One of the rst 700.7602(2), each grantor may revoke or amend the trust with steps the attorney should take upon identifying a trust at issue regard to community property or with respect to the property in a divorce matter is to ascertain the assets owned by the trust that the grantor has contributed to the trust, unless otherwise through obtaining verifying documents (i.e., deeds, titles, - specied by the trust instrument. MCL 700.7602(2). nancial statements and the like). Scenario: Husband and Wife are the grantors and co- trustees of a revocable living trust, which is funded with the Trusts and Separate Property Principles in Divorce home the parties reside in, meaning the trust maintains own- ership of the real property. Wife les for divorce and the par- Michigan law utilizes a three-step approach to equitable ties wish to resolve their property-related issues pursuant to a distribution of assets in divorce matters which include: (1) settlement agreement. With regard to the real property owned classication of property as “marital” or “separate” property; by the Trust, the parties agree that Husband will be awarded (2) division of “marital property;” and (3) potential for inva- the marital home (not to worry, Wife is awarded the parties’ sion of “separate property.” As a general principle, property beach house in Miami to ensure an equitable division of the inherited by a party, but kept separate from marital property, marital estate). How do you help Husband and Wife eectu- is separate property not subject to distribution in a divorce. ate this division? First, the assets held in the Trust should be See Reeves v. Reeves, 266 Mich App 490, 575 NW2d 1 (1997); transferred out. Husband and Wife, in their capacity as Trust- Dart v. Dart, 460 Mich 573, 597 NW2d 82 (1999), reh’g de- ees of the Trust, should execute a quitclaim deed transferring
8 M F L J M all interest in the real property from the Trust to Husband and of the assets owned by the trust is far more complex than in Wife, individually, as tenants by the entireties. As always, be the previous scenario. mindful of potential transfer tax/uncapping issues when trans- e following is a general outline of the steps that should ferring real property between entities or individuals.1 Husband be taken with respect to termination of an irrevocable trust. and Wife should then, in their capacity as Trustees, execute a e new Michigan Trust Code became eective April 1, 2010 document terminating the revocable trust pursuant to MCL (“Eective Date”) and the Eective Date should guide your 700.7602(2). e details of this procedure should be set forth analysis of what steps need to be taken to attempt to terminate in the initial terms of the parties’ property settlement agree- an irrevocable trust: ment in the divorce matter. e property settlement agree- ment should then include specic terms regarding division If the trust was established or became irrevocable of marital assets, including a provision that said real property before the Eective Date, existing case law will govern. shall be awarded to Husband via Wife’s execution of a quit- A court may terminate the trust if the settlor and 2 claim deed conveying her interest to Husband. beneciaries agree or when the trustee and settlor agree. See Hein v. Hein, 214 Mich App 356, 543 Joint Irrevocable Trusts and Divorce NW2d 19 (1995); Fredricks v. Near, 260 Mich 627, 245 NW 537 (1932). However, an irrevocable trust Less often, we encounter the divorce client with a joint may not be terminated if to do so would violate a irrevocable trust pursuant to which both spouses are the grant- material purpose of the trust. Rose v. Southern Michigan ors and beneciaries of the trust, with their minor or adult Nat’l Bank, 255 Mich 275, 238 NW 284 (1931). e children named as contingent beneciaries. In the event that specic provisions of the trust regarding termination you do encounter an irrevocable trust, it is imperative to iden- or modication should be thoroughly reviewed and tify potential issues this could cause with the divorce proceed- compared to the mandatory provisions of MCL ings at the outset of the case and consult with an experienced 700.7105 to determine whether the Michigan Trust trust attorney. Code overrides them. Scenario: Husband and Wife are the grantors, trustees and beneciaries of an irrevocable trust, which was funded Court proceedings are required to request termination with the home the parties reside in, a commercial building of the trust for trusts that were established or became that Husband’s medical practice operates out of, and a check- irrevocable before or after the Eective Date, unless: ing account. e parties’ minor children are also identied as (i) the irrevocable trust is revoked or expires pursuant contingent beneciaries of the trust. Pursuant to the terms of to its terms; (ii) no purpose of the trust remains to be the trust, the trustees are only permitted to distribute a portion achieved; (iii) the purposes of the trust have become of the net income of the trust annually and may not access the impossible to achieve; or (iv) the trust has a total trust principal, except in emergent circumstances. Husband value less than $50,000 and the trustee concludes and Wife are divorcing and wish for Wife to be awarded the that the value of the trust property is insucient home, Husband to be awarded the commercial building and to justify the cost of administration. See MCL for the parties to equally divide the trust account. Husband 700.7410; MCL 700.7414. In all other instances, a and Wife believe they can simply enter into a property settle- court proceeding is required to request termination ment agreement that enumerates these terms, not understand- of an irrevocable trust that was established or became ing the complexities created by the irrevocable trust. irrevocable before the Eective Date and grounds At the outset of the representation, the following issues for termination. No court proceeding is required should be identied and discussed with the client: (i) the trust for trusts that were established after the Eective is irrevocable and rules regarding termination of irrevocable Date under the following circumstances: (i) on the trusts are complex and often require court involvement and/or consent of the qualied trust beneciaries and a trust obtaining the consent of the trust beneciaries; (ii) Husband protector who is given the power under the terms and Wife cannot enter into an divorce agreement in their in- of the trust to grant, veto, or withhold approval of dividual capacity with respect to the property owned by the termination of the trust, MCL 700.7411(1)(b); or irrevocable trust; (iii) Husband and Wife have created an in- (ii) by termination of a trustee or trust protector to terest in the assets held in trust in their minor children who whom power to direct termination of the trust by the are named as the contingent beneciaries; and (iv) the terms terms of the trust, MCL 700.7411(1)(c). Note that in of the trust only allow Husband and Wife to access the net in- scenarios in which minor beneciaries are involved, come of the trust and not the principal during their lifetimes. the appointment of a Guardian Ad Litem will likely us, terminating the irrevocable trust to eectuate division be necessary to obtain consent.
M M F L J 9 While this article serves as a summary of the rules associ- Guardian Ad Litem for the Grand Traverse County Circuit Court, ated with termination of revocable and irrevocable trusts, it is Family Division. Melissa earned her B.A. from the University of by no means an exhaustive list of all of the complex rules in- Michigan, graduated cum laude from Pace University School of volving trust revocation, nor can it anticipate all of the specic Law and is a trained Collaborative Divorce attorney. legal issues involved with each individual case. To avoid future issues, including claims of malpractice by irrevocable trust Endnotes beneciaries, it is imperative that you as the family law prac- titioner are able to identify potential issues involving trusts in 1 Conveyances from a trust if the person to whom the residential divorce matters and consult with an experienced trust or estate property is conveyed is the settlor and the property is not used planning attorney regarding the same. for any commercial purpose following the conveyance are not considered a “transfer of ownership” for taxable value uncap- ping purposes. MCL 211.27a(ii). Transfers between a trust and About the Author its beneciaries when the transfer is to eectuate a dissolution of the trust and is necessary to transfer the title to real property Melissa Baumgartner is a divorce, family law and estate from the entity to the beneciaries is exempt from transfer tax. planning attorney at the law rm of Wilson Kester in Traverse MCL 207.526(d)(i). City, Michigan. She is licensed to practice in Michigan and New 2 A conveyance from a spouse or married couple creating or dis- York and has dedicated her practice to family law. Melissa has joining a tenancy by the entireties in the grantor and his or extensive experience in representing children in child protective pro- her spouse is exempt from transfer tax. MCL 207.526(i); MCL ceedings, serving as the Attorney for Children with the Legal Aid 207.505(i). Society’s Juvenile Rights Practice in New York and later as a Lawyer
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Imagine these scenarios… tiable motive at all. In addition, the term fails to capture the Jaden is sexually assaulted by a person she considered dissemination of a private, sexually explicit image to someone her friend. While getting a ride home from him, he changed other than the intended audience which can turn a private and course and took her to his apartment to wait for a friend. consensual image into public sexual entertainment or pornog- Once there, he forced her to take her shirt o and then took raphy.1 NCP, dened as “the distribution of sexually graphic several nude photos. After taking the pictures, he sexually as- images of individuals without their consent” is now a crime in saulted her. Upon her disclosure of the assault, he ooded his the State of Michigan. contacts with those photos to discredit her. Passed on July 25, 2016, the Michigan Legislature, with John received a Facebook request from a beautiful young wide bipartisan support, made the intentional dissemination woman. After chatting for several days John agreed to per- of sexually explicit visual material without consent a crime. form a sex act on video. Unbeknownst to him, the act was With passage, Michigan joined thirty-four other states and the taped. e “beautiful woman” began blackmailing John to District of Columbia in holding NCP oenders accountable keep the video secret. Should he stop paying, the video would with MCL 750.145e which states: be sent out to all his contacts with his identifying information. A person shall not intentionally and with the intent eresa was involved in an abusive relationship with her to threaten, coerce, or Intimidate, disseminate any partner. As part of his controlling behavior, he made eresa sexually explicit visual material of another person if strip naked and photographed her. He then used the photo- all of the following conditions apply: graphs to coerce eresa into staying in the relationship. She eventually ended the relationship and he sent the nude photo- (a) e other person is not less than 18 years of age. graphs to eresa’s conservative family. Erika, a senior in high school considered sexting to be (b) e other person is identiable from the sexually nothing more than 21st century irting. She took a nude pho- explicit visual material. tograph and sent it to her boyfriend. Her boyfriend shared is subdivision does not apply if the identifying the picture with ve of his friends, one of whom posted it on information is supplied by a person other than the social media tagging Erika in the picture. Erika now is wor- disseminator. ried that college admissions counselors will view her negatively and that it will diminish her future employment opportuni- (c) e person obtains the sexually explicit visual ties, in that when she Googles her name, a link to the nude material of the other person under circumstances in photograph appears. which a reasonable person would know or understand Ronnie was involved with a man she met online. She that the sexually explicit visual material was to remain realized he was married when a nude photograph of her ap- private. peared on her Facebook prole with a link to her address and (d) e person knows or reasonably should know that cell phone number. e picture along with her identifying the other person did not consent to the dissemination information was posted by her partner’s wife in a vicious act of the sexually explicit visual material. of revenge. All of these scenarios, are classic examples of non- consensual pornography (NCP), more commonly referred to Punishment for a rst time oender is up to 93 days in as “revenge porn.” e name revenge porn doesn’t accurately jail, a $500.00 ne or both. Subsequent conviction for a vio- reect the damages and implications of NCP. In most cases, lation of MCL 750.145e is up to 1 year in jail, a $1,000.00 revenge is not the motivating factor. ne or both.2 e currently enacted legislation follows the na- e narrow framing as revenge porn fails to include pho- tionwide trend of adopting laws designed to hold oenders ac- tographs taken during a sexual assault, for a sexual deviance, countable and to give victims some recourse in criminal court. as an act of power and control, for blackmail, or for no iden- In 2012 only three states had legislation in place that
12 M F L J M criminalized NCP.3 Oenders could disseminate nude photo- NCP all too often plays a role in intimate partner vio- graphs without the fear of being held accountable in a crimi- lence. As in eresa’s case illustrated above, victims will report nal court of law. is inability to prosecute oenders only em- the coercion that comes after the taking of the pictures per- boldened them to spread the photographs to any website they petuating the cycle of power and control. When the victim could nd. Now however, in addition to the thirty-four states attempts to leave the abusive relationship, the batterer will already having laws criminalizing NCP, legislative eorts are threaten to send the pictures to the victim’s family, friends, underway in ve additional states and in the military justice and employers or even to post them on social media. at system, making criminalization a priority across the nation fear of being exposed in such a public way often leads victims to with almost all states taking up the issue in an eort to further remain in the abusive relationship. Others who have had their protect victims.4 But as evidenced by the recent Marine Corps private photographs published online report that the posts en- photo sharing scandal, work remains in criminalizing this be- courage strangers to comment on the pictures in vicious ways. havior. A recently uncovered Facebook group entitled Marines It also encourages strangers to approach victims and proposition United revealed that current and former members of the Ma- them in lewd ways leading them to be frightened to leave their rine Corps were sharing hundreds of naked photographs of fe- homes. Put simply, technology has become another tool for male service members and veterans.5 In response, Rep. Jackie batterers to engage in a systematic pattern of abusive behav- Speier, a California Democrat, introduced legislation on March ior to gain or maintain power and control over their intimate 15, 2017, that would make it a crime for service members to partner.10 Beyond what their partner had done to them, soci- share nude photos and other intimate images without consent.6 ety often engages in victim blaming with comments like “what For Michigan prosecutors, the criminalization of dissemi- did she expect when she took those photos?” or “she never nating nude photos to others was a much-needed tool to hold should have taken the pictures in the rst place.” is quote oenders accountable for this conduct. e new law will most sums it up: “Technology is yet another means by which vic- certainly be used in conjunction with the current laws target- tims of gender-based violence are readily stripped of their dig- ing frequently co-occurring criminal behavior such as domes- nity, dehumanized, and publicly adorned with shame, anguish tic violence, child sexually abusive activity, stalking, extortion, and blame.”11 Taking this victim blaming approach allows and dissemination of video and images obtained through un- oenders to escape accountability for their heinous actions. lawful surveillance. e new law focuses on those photographs Successful prosecution of oenders under MCL 750.145e that were consensually taken or shared by the victim, but that holds them accountable for their actions against victims in a are ultimately used to terrorize them. e repercussions for criminal court. victims of having this type of material on the internet is im- In Michigan, prosecutors will use MCL 750.145e as yet measurable with most reporting irreversible harm. Victims another way to combat the violence against intimate partners. suer from signicant emotional distress including embarrass- While no case has yet made it to the appellate courts, it is ment, depression, loss of relationships, loss of employment, widely anticipated that the statute will withstand the future having to shut social media accounts and emails, being stalked constitutional challenges as cases across the country are standing online and outside of the internet by users who had seen the up in courts in other jurisdictions. For many victims, the crimi- material online, and even suicide.7 nal conviction may be too little, too late, while for others it may e ease with which an abuser or rapist can upload a be used in combination with other statutes to hold oenders ac- photo or video to a website to then be viewed by thousands countable. Civil remedies are also available for victims seeking with a click of the button and shared on hundreds more web- redress. In Oakland County, a victim was awarded $500,000 sites makes this crime especially torturous for victims. Once against an ex-boyfriend who had published nude photographs on the internet, victims report a limited ability to get the on multiple websites. In addition to the monetary award, the photos removed. Progress has been made in that Google and judge in the case issued a permanent injunction against the ex- Bing will remove content when victims request it. Social boyfriend, requiring him to immediately destroy and never re- media platforms such as Facebook, Instagram, Reddit, Tum- publish the photos to third-party websites.12 blr, Twitter and Yahoo do not allow NCP.8 However, even if If your client reports being a victim of NCP or being the search platforms remove the links, the hosting webpages, threatened with exposure of NCP, help is available. NCP is a will still have the material online. Attempts to have the web- crime and you should explore reporting to local law enforce- sites remove the material are ineectual at best. Many of the ment authorities for investigation as an option. If you suspect over 3000 sites dedicated to NCP are hosted in countries your client has been a victim of NCP even if they have not other than the United States and are therefore not subject to reported it, you should explore this area with them. Many our laws. For those websites hosted within the borders of the victims will be too embarrassed to report, or may not believe United States they are broadly immune from liability under that anything can be done about it. Anonymous help is also Section 230 of the Communications Decency Act and they available online at www.cybercivilrights.org including informa- have no legal obligation to identify posters.9 tion about online removal of the photographs. Survivors of
M M F L J 13 2 MCL 750.145f. domestic violence or sexual assault can also seek help from the Michigan Coalition to End Domestic and Sexual Vio- 3 Cyber Civil Rights Initiative. “Revenge Porn Laws.” www.cyber- lence or from a local domestic violence or sexual assault ser- civilrights.org/revenge-porn-laws. (Accessed March 20, 2017). vice provider.13 4 Cyber Civil Rights Initiative. “Revenge Porn Laws.” www.cyber- “is project was supported by Grant No. 2014-WF- civilrights.org/revenge-porn-laws. (Accessed March 20, 2017). AX-0008 awarded by the Oce on Violence Against Women, 5 Brennan, omas James. “Hundreds of Marines investigated U.S. Department of Justice. e opinions, ndings, conclu- for sharing photos of naked colleagues.” Reveal. www.reveal- sions, and recommendations expressed in this publication/ news.org. http://www.revealnews.org/blog/hundreds-of-marines- program/exhibition are those of the author(s) and do not nec- investigated-for-sharing-photos-of-naked-colleagues/ (accessed essarily reect the views of the Department of Justice, Oce March 20, 2017). on the Violence Against Women.” 6 Seck, Hope Hodge. “Lawmaker to Introduce Bill Criminalizing Military ‘Revenge Porn.’” Military.com. http://www.military. com/daily-news/20147/03/15/lawmaker-introduce-bill-criminal- About the Author izing-military-revenge-porn.html. (Accessed March 20, 2017). Danielle J. Hagaman-Clark is the PAAM VAW Proj- 7 Cyber Civil Rights Initiative. “Guide for Legislators.” Cyberciv- ect Director. She has a wide variety of experience in training, ilrights.org. https://www.cybercivilrights.org/guide-to-legislation prosecution, advocacy and criminal law. Prior to joining PAAM, (accessed March 23, 2017). Ms. Hagaman-Clark was the lead attorney for the Sexual Assault 8 Cyber Civil Rights Initiative. “Online Removal Guide.” Cyber- Team and the Homicide Unit of the Wayne County Prosecutor’s civilrights.org. https:www.cybercivilrights.org/online-removal. O ce (WCPO), in Detroit. She has prosecuted cases involving (Accessed March 23, 2017). sexual assault, conducted investigative subpoenas, made charg- 9 “Nonconsensual Pornography: Circulating Sexual Violence ing decisions and handled preliminary examinations, trials and Online: A Taped Webinar.” Amber Morczek. 2017. sentencings for high-pro le, complex and multi-defendant cases. 10 Department of Justice. “Oce on Violence Against Women.” Ms. Hagaman-Clark was also a founding member of the WCPO’s Justice.gov. http://www.justice.gov/ovw/areas-focus. (Accessed Sexual Assault Team. She is a member of the State Bar of Michi- March 23, 2017). gan and the American Inns of Court. She has served as a guest 11 “Nonconsensual Pornography: Circulating Sexual Violence lecturer for the National District Attorneys Association, Wayne Online: A Taped Webinar.” Amber Morczek. 2017. County SAFE, St. John’s Hospital, the University of Detroit, Mer- 12 Staord, Katrease. “Oakland County woman gets $500k in re- cy, and University of Windsor. venge porn case.” Freep.com. http://www.freep.com/story/news/ local/michigan/oakland/2016/08/25/oakland-county-woman-re- Endnotes ceives-500k-revenge-porn-case/89351938/ 13 For a listing of local service providers visit http://www.mcedsv. 1 Franks, Mary Anne. “Guide for Legislators.” Cyber Civil Rights org/help/ nd-help-in-michigan.html Initiative. www.cybercivilrights.org (accessed March 23, 2017).
14 M F L J M T C I JENNIFER A. ZAWILANSKI, PLAINTIFF-APPELLANT V. JUSTIN J. MARSHALL, DEFENDANT, AND KIMBERLY BREDOW, PETITIONER-APPELLEE
For Publication August 25, 2016
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The Issue e issue is the amount of grandparenting time that is appropriate. Grandparent Visitation e referee stressed that the petitioner was the one con- stant in the child’s life and recommended a schedule that a Statement of Facts normal non-custodial parent would receive as follows: Alter- e parties were never married. ey had a child. Defen- nate weekends from Friday at 6 p.m. until Sunday at 6 p.m., dant father’s mother moved for grandparenting time in a cus- four nonconsecutive weeks of summer vacation, and holiday tody case that existed between the parents after her son died. and midweek “parenting time” consistent with the Livingston Mother had been seriously injured in an automobile acci- County Friend of the Court guidelines. e referee found that dent in the summer of 2010 when the child was four-months this was in the child’s best interests. Mother objected and the old. Plainti mother was in a coma for three months. Al- trial court adopted the referee’s grandparenting-time recom- though the father had custody of the child, grandmother was mendation. the primary caregiver. A close bond developed between the Plainti’s motion for reconsideration was denied and she grandmother and the child. then appealed the case to the Court of Appeals. As the mother recovered she was being granted more time with the child. When the father died in March 2014, the mother’s parents informed the paternal grandmother that The Court of Appeals they were taking the child to live with plainti mother and ere was a discussion of the Michigan grandparent- that they would be in touch with petitioner grandmother. Less ing statute and the rebuttable presumption that a t par- than a week later the grandmother led for guardianship. In ent’s decision to deny grandparenting time does not create exchange for withdrawal of that application by grandmother, a substantial risk of harm to the child’s mental, physical or mother agreed to allow grandparenting time every Tuesday and ursday from 9:30 a.m. until 7:30 p.m. and one Friday emotional health. per month from 5:00 p.m. until 8:00 p.m. and to submit the e grandparent must prove by a preponderance of the matter of a grandparenting time schedule to the Friend of the evidence that the parent’s decision to deny grandparenting Court for investigation. time creates a substantial risk of harm to the child’s mental, physical, or emotional health. MCL 722.27b(4)(b). e referee had ruled while the mother was a t parent, that the grandmother had overcome the t-parent presumption. e Court of Appeals takes the position that when some parenting time is granted, a grandparent must show that the denial of the amount of grandparenting time that exceeded mother’s recommendation created a substantial risk of harm to the child. ere was no evidence presented on this question. e referee committed clear legal error as did the trial court by failing to apply the t-parent presumption to the mother’s grandparenting time decision.
M M F L J 15 The Ruling About the Author e Court of Appeals vacated the trial court’s order and Henry S. Gornbein is a partner with the law rm of remanded to the trial court for further proceedings consistent Lippitt O’Keefe Gornbein, PLLC in Birmingham, Michigan. with the opinion. His practice is exclusively devoted to family law. He is a for- mer chairperson of the Family Law Section of the State Bar of Comment Michigan; a former president of the Michigan Chapter of the American Academy of Matrimonial Lawyers; former Chair of My interpretation is that a grandparent is in a very tenu- the Long Range Planning Committee for the National Ameri- ous position under the law. e t parent presumption and can Academy of Matrimonial Lawyers; member of the Oakland the burden placed on a grandparent is a very high one. Grand- County Friend of the Court Citizens Advisory Committee; win- parent visitation cases are very dicult to say the least. e ner of the Professionalism Award from the Oakland Cou nty Bar opinion is worth reading in full. Association in 2004; author of the “Spousal Support” Chapter of Michigan Family Law; author of “Case of the Issue” for the Michigan Family Law Journal, State Bar of Michigan; blogger for the Hungton Post; creator and host of the award-winning cable television show, Practical Law, now entering its 17th year; and Podcaster for DivorceSourceRadio.com. His new book, Di- vorce Demystied, Everything You Need to Know Before Filing for Divorce, is available on Amazon as a softcover or eBook.
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B H I. H M A. S H S
Dear Professor Lex, and further destruction of the web postings by obtaining an ex parte order requesting cessation of such conduct. MCR My client, in a divorce case, has, throughout the 3.207(A) provides, in part, “[t]he court may issue ex parte… pendency of the case, been the victim of conduct by her orders with regard to any matter within its jurisdiction….” spouse that is causing her substantial emotional distress. Second, as your case involves electronically stored data be Her spouse has been posting inappropriate and untruth- mindful of MCR 2.302(B)(5), which states: ful content about her on several social media websites. Electronically Stored Information. A party has Recently, the posted content was deleted from the web- the same obligation to preserve electronically sites. Do you have any thoughts as to possible courses of stored information as it does for all other types of action I should take? information. Absent exceptional circumstances, a court may not impose sanctions under these rules Dear Practitioner, on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith Your case presents many issues. Without knowing the operation of an electronic information system. content of the published material, we can only suggest some options you might want to consider. If your client’s spouse has failed to preserve any electroni- First, you should immediately attempt to prohibit your cally stored data as required by MCR 2.302(B)(5), the court client’s spouse from any further inappropriate publications has the inherent authority to fashion a possible remedy. In
M M F L J 17 Brenner v Kolk, 226 Mich App 149, 159, 573 NW2d 65 If the publications constituted defamation or other tor- (1997), the court dealt with the issue of “whether a trial court tious conduct, consider bringing civil litigation against your in Michigan may sanction parties for the loss or destruction of client’s spouse. evidence as an exercise of its inherent powers.” e above response is not meant to serve as a solution to a e Kolk court stated, in part: case. at would require complete disclosure of all facts in the Michigan courts have recognized that courts have the case, including client consultation. Rather, the intent is to pro- inherent power to take a number of various actions. In vide informal guidance based upon the facts that have been pre- addition, without specically mentioning the sented. e inquiring lawyer bears full legal responsibility for inherent-power doctrine, this Court recently determining the validity and use of the advice provided herein. recognized a court’s authority to sanction litigant Please send questions for Professor Lex to Hhauer@hau- misconduct, even when there is no statute or court rule ersnover.com or [email protected]. Include “Professor addressing the particular form of misconduct, based on Lex” in the e-mails subject line. a court’s fundamental interest in protecting its integrity and that of the judicial system. Id. at 159-160. About the Authors Harvey I. Hauer, Hauer & Snover, PC, is a Fellow of the e Kolk Court concluded: American Academy of Matrimonial Lawyers and the former pres- ident of the Michigan Chapter. He has also served as chairperson …in a case involving the failure of a party to preserve of the State Bar of Michigan Family Law Section, the Michigan evidence, a trial court properly exercises its discretion Supreme Court Domestic Relations Court Rule Committee and when it carefully fashions a sanction that denies the the Oakland County Bar Association Family Law Committee. He party the fruits of the party’s misconduct, but that has been named by his peers to Best Lawyers in America, Super does not interfere with the party’s right to produce Lawyers and Leading Lawyers. He is a co-author of Michigan other relevant evidence. See Lewis v. Telephone Family Law. Employees Credit Union, 87 F.3d 1537, 1557–1558 Mark A. Snover, Hauer & Snover, PC, has been named (C.A.9, 1996). An appropriate sanction may be the by his peers to Best Lawyers in America and Leading Lawyers in exclusion of evidence that unfairly prejudices the Family Law. He was named to the National Advocates, top 100 other party or an instruction to the jury that it may Lawyers. Mr. Snover is listed in Martindale Hubbell’s Bar Regis- draw an inference adverse to the culpable party from ter of Preeminent Lawyers. He was also selected to the American the absence of the evidence. Id. at 161. Society of Legal Advocates, Top 100 Lawyers, and the Nation- al Association of Distinguished Counsels, Top 1 Percent. Mark Additionally, a forensic expert could be useful in examin- served on the State Bar of Michigan Family Law Council. He is a ing the electronic device(s) from which the publications were frequent author in the family law arena. made. MCR 2.310 sets forth the procedure and scope for such inspections. Such experts, among other things, can ascertain if anything was erased from the device(s).
Michigan Family Law Appeals Scott Bassett
Quality and Experience
248-232-3840 - Telephone 248-928-0355 - Fax
[email protected] www.michiganfamilylawappeals.com A Michigan Virtual Law Practice
18 M F L J M
CHILDREN’S PROTECTIVE SERVICES CASES T P R
B J P K C PLLC
When Child Protective Services becomes involved with a e consequences to a parent with an attorney who family, the worst-case scenario for the parents is termination doesn’t fully understand child welfare law or doesn’t fully pre- of their parental rights. is is, in essence, the civil version of pare for a termination of parental rights trial are monumental. the death penalty. Any attorney representing parents in CPS A parent’s attorney needs to have a thorough understanding cases needs to know how the termination of parental rights of the various statutes and court rules, plus the expansive case process works. law, which comprise child welfare law. Additionally, due to the e law regarding termination of parental rights is found fact-intensive nature of termination trials, a parent’s attorney at MCL 712A.19b. CPS has the option of requesting that the needs to know his/her case completely, including taking the court terminate parental rights at the initial dispositional hear- time to understand the dynamics of any foster care placement ing. MCL 712A.19b(4). In this case, once the court takes ju- in the case. Even minor details can sway a court’s opinion on risdiction via trial or a plea by the parent, it can move straight whether termination of parental rights is in the best interests to the hearing on termination of parental rights. CPS tends to of the children. As such a parent’s attorney must always be reserve this option for cases where there have been allegations patient, careful, and thorough. of sexual abuse or signicant physical abuse, or where parents have had prior a prior termination of parental rights and have About the Author never addressed the issues which led to the prior termination. Even if CPS does not request termination of parental Joshua Pease is a Children’s Protective Services Defense rights at the initial disposition, it can later request termina- attorney who has been working in various capacities regarding tion of parental rights for various reasons. e most common child welfare for his entire career. He has worked with numerous grounds for requesting termination of parental rights are fail- families, both as a parent attorney and as an L-GAL. Joshua is ure to benet from services after CPS has made reunica- an associate with the law rm of Kronzek & Cronkright PLLC, tion eorts (MCL 712A.19b(3)(c)(i)), an inability to provide which house multiple attorneys dedicated to this area of practice proper care and custody of the children (MCL 712A.19b(3) and the preservation of families. For more information on CPS (g)), and a reasonable likelihood that the children will be Defense contact us at (517)886-1000 or www.childprotectiveser- harmed if returned to the parent’s care (MCL 712A.19b(3) vicesdefense.com/ (j)). A termination petition, regardless of when it is led, will almost always list more than one statutory ground for termi- nation of parental rights, so a parent’s attorney should always o You now a Teenager or be prepared to argue against every potential statutory ground. Young Adult STRUGGLING with: At a trial regarding termination of parental rights, CPS Adjusting to co-parenting or divorce? must prove two things: that there is at least one statutory Refusing parenting time with one parent? Anxiety or depression? ground for termination, and that termination is in the best interests of the children. e burden of proof for both por- Helping Families in Transition tions is clear and convincing evidence. e best interests de- termination is extremely fact intensive and entails many fac- tors, which are primarily laid out in In re Olive/Metts Minors, 297 Mich App 35; 823 NW2d 144 (2012). If an attorney can successfully argue that termination is not in the children’s 575 E. Big Beaver, Suite 260 • Troy, MI 48083 On the North Side of Big Beaver between Rochester Road and Livernois best interests (or that CPS hasn’t met their burden), then the court cannot terminate the parent’s rights. As such, a parent’s 248-515-8873 For Advice, Videos and Articles, Check Out: attorney should never overlook the best interests portion of a
http://TroyPsychotherapy.com/blog/ 0304-1643 termination trial.
M M F L J 19 The Family Law Section Great Lakes Honor Roll
SSuperioruperior • Natalie• Natalie Alane Alane, Alane, Alane & Chartier,& Chartier, PLC PLC • Elizabeth• Elizabeth K. K. (Liz) (Liz) Bransdorfer Bransdorfer, ,Mika Mika Meyers Meyers Beckett Beckett && JonesJones PLC, Grand RapidsRapids
MMichiganichigan • Anthea E. Papista, Papista & Papista, PLC • Anthea E. Papista, Papista & Papista, PLC Huron H• Catchickuron Law, PC • Liisa• Liisa R. R. Speaker, Speaker Speaker, Speaker Law Law Firm, Firm, PLLC PLLC • Trish• Trish Oleksa Oleksa Haas Haas,, Haas Haas & Associates,& Associates, PLLC PLLC • Irika• Irika Mellin Mellin & &Kristen Kristen Robinson Robinso, n,Mellin Mellin Robinson, Robinson, PC P.C, Troy., Troy • Talarico & Associates, PC • Talarico & Associates, PC EErierie • James• Catchick Chryssikos Law, PC Law Firm, PLLC • •JosephJoseph W. W. Cunningham Cunningham, JD,, JD, CPA, CPA, PC PC • Mathew• Mathew Kobliska Kobliska, DeBrincat,, DeBrincat, Padgett, Padgett, Kobliska Kobliska & Zick& Zick • Mallory,• Mallory, Lapka, Lapka, Scott Scott & Selin,& Selin, PLLC PLLC • Steven D. Reinheimer, Reinheimer Law Office, PLC • Steven D. Reinheimer, Reinheimer Law Office, PLC • Jorin G. Rubin • Jorin• John G. J. Rubin Schrot, Jr., Berry Moorman, PC • John• Velzen, J. Schrot, Johnsen Jr. ,& Berry Wikander, Moorman, PC PC • Velzen, Johnsen & Wikander, PC
SpecialSpecia lthanks thank sto t othe th emembers member ofs o thef th Greate Gre aLakest Lak Honores Hon oRollr R oforll f otheirr the ir supportsupport ofof thethe FamilyFamily Law Law Section Sectio nand an dFamily Fami lLawy La wJournal Journ inal 2016in 2016 The Family Law Section GREAT LAKES HONOR ROLL The Family Law Journal serves as Family Law Council's forum to share ideas, announce new legislation, summarize and analyze case law and trends that affect our Section. Without question, the Journal represents a significant benefit of one's membership in the Family Law Section of the State Bar. Our readers receive advance notice of the most current pertinent legal developments which may impact our practice. We learn from The Best to be The Best. The Family Law Council analyzes, evaluates, testifies, and advocates for the best interest of the Family Law Section regarding all pertinent legislation; it likewise employs a skilled lobbyist to assert our positions on significant new laws.
As a way to express your support for the upcoming year, the Journal will be recognizing honorees on its "Great Lakes Honor Roll." To be included, our loyal readers, authors, and sponsors may participate at various levels as follows:
Superior: $1,000 - $1,500 Michigan: $750 - $999 Huron: $500 - $749 Erie: $150 -$499 There is no deadline for joining the Honor Roll. Your name, law firm name or business name will be added to the honoree list for a full year from the date you first join. Your listing may include a “clickable” link to your website if you so choose.
To be included in the Honor Roll for the Family Law Journal please complete the form below and send your check payable to "State Bar of Michigan" to:
Kristen Robinson, Mellin Robinson, PC, 1755 W. Big Beaver Rd., Troy, MI 48084 (For additional information contact Kristen Robinson at 248.614.9005)
Yes, I would like to be listed in the Great Lakes Honor Roll for one year in each edition of the Family Law Journal.
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B J W. C , JD, CPA
In recent columns (October 2016 and March 2017), vari- while intact and will be conferred solely on the ous aspects of using “value to the owner,” sometimes referred owner post-divorce. to as “Holder’s Interest” value, were presented. If there is no intent to sell, under what rationale Background should any value other than the value based on current nancial benets provided by the enterprise As noted in the October column, the Michigan Court of be used in a divorce settlement? Appeals has ruled in a number of cases that if a business provid- ing personal services is worth more to the owner than the price No other value is relevant to this family or, hence, at which it could be sold, the value for divorce purposes is value to this divorce. to the owner, unless there is reason to believe the enterprise will be sold. Kowalesky v. Kowalesky, 148 Mich App 151; 384 NW2d Application to Small Minority Interest in a Large Firm 112 (1986), and several other Court of Appeals (COA) cases cited in the column. ere are many large law rms, accounting rms, engi- As noted in the March column, the underlying logic is as neering rms, medical practices, etc. operating in Michigan. follows: How is the “value to the owner” determined for a member holding a minority interest in such an enterprise? If there is no intent to sell or discontinue a business or professional practice, it should be valued for Binding “Buy/Sell” Agreements divorce based on its intrinsic value to the owner on a Generally Not Applicable going concern basis. e nancial benets from that Most large personal service rms require individual mem- value are what have been conferred on the family bers to sign binding agreements providing (1) restrictions on transfer and (2) a set price or formula to determine the price of a member’s interest on termination. Quite often such prices include no goodwill value. It is well established that such agreements are not deter- minative of value for divorce because none of the events to which they apply–death, disability, or termination of interest for other reasons–are occurring.
Valuing Entire Firm and Applying Member’s Ownership Percentage Is Generally Not Representative of Value For example, assume two partners—A and B—work at a large accounting rm. Both own 1% of the practice. But, A makes $500,000 annually while B makes $300,000. is disparity is due to dierent performance levels which may ul- timately result in A being awarded a higher ownership interest than B, but currently they both own 1%. Large accounting rms–similar to other large personal service rms–are generally highly leveraged. Non-partner sta are billed out at multiples of what they are paid. is results in “override” income divided among the owners. is is es-
22 M F L J M sentially “goodwill” compensation they receive in addition to being paid for their individual personal services. In our example, both the $500,000 paid to A and the Register Now! $300,000 B receives include some of this goodwill income, though A receives more than B. But, if the entire rm was 2017 Family Law Section valued and their respective 1% ownership percentages applied to the value, the values for their interests would be the same Mid-Summer Conference – which would not be representative of the disparate nancial benets each is receiving from the rm. July 20 – 23, 2017 As an aside, it is very dicult to obtain the “sensitive” Mission Point Resort, Mackinac Island nancial information from such rms needed to value them. http://connect.michbar.org/familylaw/ Use of “Silo” or “Practice Within a Practice” Method e most eective way to determine the value of an inter- est in a large personal service rm is to value the individual owner’s interest based on the nancial benets he/she receives. Using our example, after reviewing what A has received in recent years from the rm and determining prospects going forward, $500,000 appears representative of A’s annual com- pensation from the rm. A’s interest is valued as follows: Representative Earnings ...... $500,000 Less “Market” Value of A’s Services Based on Statistics for the Profession ...... (300,000)
Goodwill Earnings...... 200,000 Less Federal & State Income Tax ...... ( 75,000)
After-Tax Goodwill Earnings ...... 125,000 Earnings Multiple Based on Various Risk Factors ...... 4
“Value to Owner” of A’s Interest ...... 500,000
If the same methodology were applied to B’s interest, the value would be lower, as it should be, notwithstanding that they both own 1%.
Concluding Comments To determine the value to owner of a minority interest in a large personal service rm, the most eective method is to de- termine the value based on what nancial benets this particu- lar owner receives from the rm. is is sometimes referred to as using a “silo” approach, or valuing a “practice within a practice.”
About the Author Joe Cunningham has over 25 years of experience specializing in nancial and tax aspects of divorce, including business valua- tion, valuing and dividing retirement bene ts, and developing set- tlement proposals. He has lectured extensively for ICLE, the Family Law Section, and the MACPA. Joe is also the author of numerous journal articles and chapters in family law treatises. His o ce is in Troy, though his practice is statewide.
M M F L J 23 M S : A C I I
B M E. S
Overview for the Initial Consultation Documents to Request When the attorney is meeting with a client about a mili- Ask your client to produce the following (as applicable): tary child support case, and the client is the custodial parent/ 1. Divorce decree child support payee, a good set of questions can help to frame 2. Paternity determination documents (e.g., written acknowl- the fact-gathering process. Set out below are the questions to edgment, court order, administrative determination) ask, documents to request and actions to take. 3. Child support order or agreement
Questions for the Client 4. Military ID cards, military orders 1. Is there a paternity determination? If so, when and where? 5. Record of support payments 2. Do you have an agreement or court order determining 6. Written narrative of attempts to obtain support payments, as well as supporting documents (e.g., letters, e-mails, text child support? If so, when, where, how much support, messages, social media messages). and what other terms?
3. If the parties were married, when did they separate? Getting Family Support through a Nonsupport When, if applicable, did they divorce? Where was the di- Complaint vorce granted? Regulations of the Army, Navy, Marine Corps and Coast 4. What is the rank of father/alleged father? Guard specify the level of support required when spouses have 5. What is his Social Security Number? separated or when the parents of a child are separated (or not married) and there is no court order or agreement for child 6. What is his branch of service (e.g., Coast Guard, Navy support. ese are known as interim support regulations. Reserve, Ohio National Guard)? ese regulations are: 7. What is his full name? • Army: Army Regulation (AR) 608-99 • Navy: U.S. Department of Navy, Naval Military Person- 8. What is his location (e.g., Fort Hood, Texas, or Shaw Air nel Manual Articles 1754-030 (Support of Family Mem- Force Base, South Carolina)? bers) (ch. 15, April 26, 2006) 9. What is his unit (e.g., 82d Airborne Division, or 20th • Marine Corps: U.S. Marine Corps Order P5800.16A; Fighter Wing)? e more detailed this information is, the Marine Corps Manual for Legal Administration, ch. 15 better. For example, instead of 82d Airborne Division, it (2003) (Dependent Support and Paternity) would be preferable to identify the other party’s unit as “Company C, 2d Battalion, 503 Parachute Infantry Regi- • Coast Guard: U.S. Department of Homeland Security, ment, 82d Airborne Division.” U.S. Coast Guard Commandant Instr. (COMDTINST) M1600.2, Article 2.E. (September 2011) (Support of 10. What support have you received? Do you have a history of Dependents). support payments (i.e., dates of payment, amounts paid)? e point of initial enforcement for support is the unit 11. What attempts have you made to obtain support? Do you commander. e armed forces cannot just take money from have any evidence of those attempts? the pay of a SM and transfer it to a deserving support recipi- ent. Military regulations, however, establish the amount of
24 M F L J M expected support for a SM (except for the Air Force, which About the Author deems nonsupport issues to be a matter for civilian courts). Mr. Sullivan is a retired Army Reserve JAG colonel. He practices ese regulations establish a duty to pay support and – with family law in Raleigh, North Carolina and is the author of e the exception of the Navy – they allow the punishment of Military Divorce Handbook (Am. Bar Assn., 2nd Ed. 2011) servicemembers who do not comply with this requirement. and many internet resources on military family law issues. A In addition, all branches of service will require SMs to Fellow of the American Academy of Matrimonial Lawyers, Mr. comply with court orders for support and with the terms of Sullivan has been a board-certi ed specialist in family law since separation agreements. A wise attorney will use these regula- 1989. He works with attorneys and judges nationwide as a tions as a temporary measure before the case is led or while consultant on military divorce issues in drafting military pension pending a hearing. When there is no agreement or order, the division orders. He can be reached at 919-832-8507 and mark. best course of action is to initiate a nonsupport complaint by [email protected] (or at: 919-306-3015, law.mark. writing to the commander of the other party, identifying the [email protected]) applicant, setting out the factual circumstances, describing any hardships suered, and requesting regular monthly pay- ments through an allotment.
AN INVITATION TO PROSPECTIVE AUTHORS FOR THE MICHIGAN FAMILY LAW JOURNAL’S “TECHNOLOGY AND THE LAW” SPECIAL EDITION
The Family Law Journal Editors invite and encourage prospective authors to submit proposals for our upcoming October “Technology and the Law” issue. Topics may encompass: reproductive rights, technology in our practice, and other ways in which technology has transformed family law or will in the foreseeable future. Author proposals are due on or before June 15, 2017. Please submit your ideas via email to: Anthea Papista ([email protected] ) and Amy Spilman ([email protected]). Thank you in advance!
M M F L J 25 R P U C
(S S B F L C A C M )
Revocation of Paternity Act: Statute of Limitations; raised by him and adjudicated by the trial court he was joined Necessary Party; Premature Adjudication of in the cause of action. Nonparty Anticipated Defense Graham v Foster, ____ Mich ____ Custody—Evidentiary Issues: Hearsay Statements (No. 152058, April 7, 2017) (Michigan Supreme Court) of Minor Child Admitted Under MRE 803(4) and MRE 803(24) e Michigan Supreme Court vacated part of the Court of Appeals opinion while maintaining the portion of the opin- Wallace v Taylor, Mich Ct App No 333888 ion that remanded the case to the trial court for further pro- (March 14, 2017) (unpublished) ceedings. In this case, the defendant-mother had a child while e plainti-mother and defendant-father were never married, and the plainti, a man who was not her husband, married. When the minor child was two years old, a custody claimed that he was the father of her child. e plainti led order was entered granting the parties joint legal and plainti- a paternity action more than three years after the child was mother primary physical custody of the child. e defendant- born but within one year of the enactment of the Revoca- father had parenting time. Approximately ve years later, the tion of Paternity Act. e defendant-mother brought a mo- defendant-father led a motion to change custody due to do- tion for summary disposition, arguing that (a) her husband, mestic violence issues in the plainti-mother’s home, which the presumptive father of the child, was a “necessary party” to prompted Child Protective Services involvement. Following the action and (b) plainti had not joined him to the action an evidentiary hearing, the defendant-father was granted joint within either time limitations contained in MCL 722.1437, physical custody of the child. e plainti-mother became thus plainti’s cause of action was time-barred. e trial court involved with a new boyfriend, and the child was engaged denied the defendant-mother’s summary disposition motion in counseling. While domestic violence did not appear to be on the grounds that her husband was not a “necessary party” present in the plainti-mother’s home with the new boyfriend, to the action. e defendant-mother led an interlocutory the counselor believed that the boyfriend was a “trigger” for application, which was granted. e Court of Appeals ulti- the child, and the trial court entered an order prohibiting the mately disagreed with the trial court’s determination that the plainti-mother’s boyfriend to be present during parenting defendant-mother’s husband was not a “necessary party” to time. Several months later, the defendant-father led another the case, as his parental rights to the child were aected by motion to change custody, alleging that the plainti-mother the cause of action, however, it upheld the denial of summary could not provide the child with a stable environment. e disposition and concluded that a “necessary party” exception trial court granted defendant-father sole legal and sole physical applied to the case, allowing an additional “necessary party” custody of the child, and the plainti-mother was held in con- defendant to be added even after the expiration of the limita- tempt for exposing the child to her boyfriend in contravention tions period. e Michigan Supreme Court agreed with the of the trial court’s order. e plainti-mother appealed the tri- Court of Appeals that the defendant-mother’s husband was al court’s change in custody and the contempt determination, a necessary party to the proceedings but found the Court of primarily arguing that the trial court abused its discretion by Appeals’ logic regarding the relation-back determination to be allowing hearsay statements of the child into evidence by way awed on two fronts: 1) the defendant-mother could not as- of the counselor’s testimony. e Court of Appeals concluded sert the statute of limitations claim on a nonparty’s behalf; it that the trial court appropriately applied the hearsay excep- was her husband’s right to assert; and 2) the trial court erred tions MRE 803(4) and MRE 803(24), making detailed analy- by adjudicating the merits of the presumptive father’s statute sis of the evidentiary ruling on the record. Further, the trial of limitations claim without him being a party to the case. court did not rely heavily on the child’s statements, and the erefore, the Michigan Supreme Court concluded that, main points of the child’s statements were proven by other while the defendant-mother’s husband was a “necessary party” admissible testimony. to the case, the statute of limitations argument could only be
26 M F L J M Custody—Established Custodial Environment Maintained Despite Marked Reduction in Parenting Appeals found that the trial court properly determined that the Time During School Year change in parenting time did not alter the children’s established custodial environment, as the defendant-father could still par- Duhl v Ladomer, Mich Ct App No 334307 ticipate in the children’s schooling despite his parenting time (March 14, 2017) (unpublished) being primarily over the weekends. e Court of Appeals re- jected the defendant-father’s argument that the plainti-moth- e plainti-mother and defendant-father were married er failed to show proper cause or change in circumstances. In in 2003, had a daughter in 2005, a son in 2006, and divorced fact, the children missed practices and extracurriculars on the in 2013. At the time of the divorce, the parties agreed to joint defendant-father’s parenting time, which prevented them from legal and physical custody, with a parenting time schedule fully participating in such activities and aected their school for defendant-father consisting of one week from Monday experience. e plainti-mother requested sole legal custody of overnight through ursday and the next week Sunday eve- the children. e Court of Appeals found the plainti-mother ning through ursday morning (amounting to 7 out of 14 presented sucient evidentiary support that justied the trial overnights). In 2015, the plainti-mother led a motion to court’s award of sole legal custody to her. modify parenting time, requesting that the defendant-father’s parenting time should be reduced to alternating weekends during the school year and alternating weeks in the sum- Prenuptial Agreements: Separate Property Invasion mer. e trial court entered an order stating that there was in Light of Allard I-III; Spousal Support an established custodial environment with both parties; the Reichenbach v Reichenbach, Mich Ct App No 326355 plainti-mother’s request did not alter the established custo- (March 21, 2017) (unpublished) dial environment; the plainti-mother’s motion involved par- enting time, not custody; and the threshold in Shade v Wright, is case involves the invasion statutes, MCL 552.401 201 Mich App 17; 805 NW2d 1 (2010), had been met. After and MCL 552.23, as they relate to prenuptial agreements and an evidentiary hearing spanning seven months, the trial court the decisions in Allard I-III. e plainti-wife and defendant- granted the plainti-mother sole legal custody of the children husband executed a prenuptial agreement three days prior to and modied parenting time to provide the defendant-father their marriage. ey were married for eighteen years and had with alternating weekends during the school year from urs- two children—one child remained a minor at the time of l- day through Monday morning and alternating weeks in the ing of divorce. e plainti-mother’s agreed-upon role in the summer. e parenting time change resulted in the defen- family was to raise the children and the defendant-father’s role dant-father having four out of fourteen overnights during the was that of the nancial provider. e defendant-father was children’s school year. e defendant-father appealed, and the president and owner of a company that his father started in the Court of Appeals concluded that the trial court did not err in 1950s and other companies spun o from that company over granting the plainti-mother’s relief. Specically, the Court of the years. e defendant-father also owned real estate rental
M M F L J 27 Pensions and retirement accounts are often the largest assets properties. After a lengthy trial, the trial court determined attorney withdrew as counsel two weeks prior to the trial. e divided in a divorce; don’t trust your orders to just anyone… that the parties’ prenuptial agreement was valid and enforce- order allowing counsel’s withdrawal also included a provision THERE IS NO SUBSTITUTE FOR EXPERIENCE AND PROVEN RESULTS! able. e trial court then concluded that the separate property that stated the trial date would still proceed. On the date of dened by the prenuptial agreement could be invaded under trial, the plainti-father failed to appear, and the trial court MCL 552.401 and MCL 552.23. As such, it awarded each of proceeded with taking proofs from defendant-wife, who had the parties one-half the marital estate, including the invaded led a counter-complaint. Two days later, the plainti-hus- property, and awarded the plainti-wife rehabilitative spousal band led a motion to enforce a settlement that the parties QDROExpress support of $5,000 per month for seven years. e plainti- supposedly reached months before via e-mail. e defendant- wife’s $105,000 attorney fee request was denied because the wife led a motion to adopt the FOC recommendations re- A Full Service QDRO Firm trial court found that she would have no debt post-divorce garding custody, parenting time and support. At the motion and that she would not have to substantially deplete mari- hearing, the trial court rejected the plainti-husband’s argu- tal assets to pay the fees. After the trial court made its rul- ing, the Court of Appeals decided Allard I, which prompted ment that he thought the trial date was in August, not July, the defendant-husband to move for reconsideration, arguing and that his attorneys did not inform him properly. e trial Why Choose QDROExpress? that Allard I barred the invasion of separate property under court also entered an order adopting the FOC recommenda- MCL 552.23, MCL 552.401 and MCL 557.28. e trial tions as requested by the defendant-wife. In August 2016, the court agreed and deducted the defendant-husband’s premari- plainti-husband led a motion to set aside the default and to Attorneys – The Critical Difference: tal value of the original business and the real estate rentals and enforce the alleged settlement. e plainti-husband claimed, Consider the risk of delegating the drafting of technical legal determined that 40% of the defendant-husband’s income was among other things, that he had spoken with a judicial sta related to separate property and could not be used for spousal member, who informed him that the trial was scheduled for documents to non-lawyers. Our team of 4 experienced family law support. erefore, the trial court reduced the plainti-wife’s August 2016 and not July 2016, and that the parties should attorneys, led by nationally renowned QDRO expert Robert Treat, award to $3,000 per month for seven years. e Michigan be held to their settlement agreement as evidenced by their Supreme Court was considering Allard I during the pendency e-mail exchange. e trial court concluded that the plainti- carefully research and thoughtfully draft your orders to properly of the appeal and held that “the trial court could exercise its father failed to demonstrate good cause or facts supporting a apply the law. discretion under MCL 552.23(1) and MCL 552.401 to in- meritorious defense. e Court of Appeals upheld the trial vade [a party’s] separate estate.” Allard v Allard, 499 Mich 932; court, stating that the burden to show good cause to set aside 878 NW2d 888 (2016) (Allard II). As a result, the Court of a default rests with the defaulted party and the excuses prof- Appeals then determined that the trial court’s modication in fered by the defendant-husband did not support a nding of Expertise in Military Pension Division Orders reliance on Allard I was no longer viable. good cause. Further, the trial court concluded that any neg- • Over 15,000 orders prepared ligence on the part of the defendant-husband’s attorney was Default Judgment—Setting Aside Default imputed to defendant. While an attorney’s abandonment of • Prompt Personal Attention ompson v ompson, Mich Ct App No 334568 a case may be grounds to set aside a default, the facts in the • Hourly Consulting – assistance with judgment language; plan information and (March 21, 2017) (unpublished) present case did not support such a notion, as the attorney e plainti-husband appealed a default judgment and withdrew weeks before the trial and the order allowing for the advice to give you an edge in mediation and settlement negotiations denial of a motion to set aside default. A trial was scheduled withdrawal specically indicated that the trial in July 2016 • Review of orders and judgment language drafted by others in the matter on a date in July 2016 and plainti-husband’s was going to proceed. • Pension Valuations, Expert testimony, Affidavits and Opinion Letters
• All types of retirement plans – private sector and public sector (including state, LAUREL STUART-FINK, PLLC federal and military) plans • Guaranteed Acceptance – continued service until order is qualified DOMESTIC RELATIONS APPEALS 30+ years experience
(248) 626-5450 Contact Robert Treat [email protected] www.qdroexpressllc.com www.laurelfink.com 22919 Eureka Road, Taylor, MI 48180 Tel: (734) 675-8207 • Fax: (734) 671-3741
28 M F L J M Pensions and retirement accounts are often the largest assets divided in a divorce; don’t trust your orders to just anyone… THERE IS NO SUBSTITUTE FOR EXPERIENCE AND PROVEN RESULTS! QDROExpress A Full Service QDRO Firm Why Choose QDROExpress?
Attorneys – The Critical Difference: Consider the risk of delegating the drafting of technical legal documents to non-lawyers. Our team of 4 experienced family law attorneys, led by nationally renowned QDRO expert Robert Treat, carefully research and thoughtfully draft your orders to properly apply the law.
Expertise in Military Pension Division Orders • Over 15,000 orders prepared • Prompt Personal Attention • Hourly Consulting – assistance with judgment language; plan information and advice to give you an edge in mediation and settlement negotiations • Review of orders and judgment language drafted by others • Pension Valuations, Expert testimony, Affidavits and Opinion Letters • All types of retirement plans – private sector and public sector (including state, federal and military) plans • Guaranteed Acceptance – continued service until order is qualified
Contact Robert Treat www.qdroexpressllc.com
22919 Eureka Road, Taylor, MI 48180 Tel: (734) 675-8207 • Fax: (734) 671-3741 G R A F L S S B M A C
1. Requests from litigants should be directed to the Amicus case eventually progressing to the Supreme Court (for cases Committee and may be submitted to any Council member. on which the Supreme Court has not yet granted leave); and 2. e amicus request must clearly indicate whether leave to practical considerations, such as the level of commitment of the requesting attorney and his/her client to pursuing the case. appeal has been requested and/or granted. If leave has been requested but not yet granted, the requesting attorney must 5. e requesting party shall furnish any additional material or indicate whether an amicus is requested to support granting information required by the Amicus Committee. leave or on the substantive issues. Absent exceptional circumstances, no amicus request will be considered until the Court has granted leave to appeal. Case Selection Criteria for Requests for Appearance of the Family Law Section of the State Bar of Michigan as 3. Amicus requests must be in writing, accompanied by ve Amicus Curiae copies of each of the following: a. A short and concise memorandum setting out the legal In passing on a request for appearance as Amicus Curiae, the issue(s) addressed by the appeal; Amicus Committee of the Family Law Section shall b. Previously submitted briefs (from both parties) and consider the following criteria: opinions in the case, together with the order granting l. Whether the legal issue involved is of substantial interest to leave to appeal, if appropriate, and a list of the ling the domestic relations bar. deadlines, including the deadlines for the amicus curiae 2. Whether the legal issue involves a conict in case law, or a brief; case of rst impression, or a novel or previously unresolved question, or whether there is a need for clarication of a legal c. A list of signicant cases that an amicus brief should issue, the disposition of which is likely to have broad range consider, together with copies of any cases outside of eects beyond the particular case. Michigan; 3. Whether the legal issue involved aects fundamental rights of d. A brief statement explaining why the Family Law individuals or involves a constitutional question. Council should grant the request. is statement should 4 . Whether the case presents an opportunity to ameliorate or specically reference the Case Selection Criteria and reverse prior judicial decisions or legislative enactments which the impact of the case on the domestic relations bar as a adversely impact domestic relations law. whole. e statement should also address the potential 5. Whether the issue or case impacts the practice of family law expenditure of Council time and resources; from the view of practitioners. 6. Whether the briefs of the parties before the court, or briefs e. For amicus requests prior to the Court granting of other amicus curiae, adequately address the legal issues leave to appeal, a statement setting out “exceptional presented. circumstances” to justify Family Law Council 7. Whether the facts presented are strong enough, and the involvement; record suciently developed, to support the position to be f. A proof of service indicating that all materials submitted asserted. to the Amicus Committee have been concurrently served 8. Whether the position to be asserted is appropriate in view on all other counsel in the matter. of the recent pronouncements of the appellate courts and 4. e requesting party may be required to meet with the Amicus consistent with the Family Law Council’s principles and Committee to discuss Family Law Council involvement. In philosophy. this event, the Amicus Committee shall notify the opposing 9. Whether there exists sucient time to request amicus status attorney of the date, time, and location of the meeting and and properly prepare a brief. invite them to be present and participate in the meeting. A 10. Whether sucient resources are available, given the Council’s meeting of the Amicus Committee will be convened for this amicus caseload, to grant the particular request. purpose at which the requesting party should be prepared 11. Whether the Court has requested the submission of briefs. to discuss the importance of the issue(s) presented; how 12. Whether the case should be referred to another Section of the Council support will benet the party, the bench, and the State Bar. Bar at the present state of litigation; the likelihood of the
30 M F L J M Family Law Political Action Committee
In 1997, a voluntary Political Action Committee (PAC) was formed known as the Family Law Political Action Committee. e PAC advocates for and against legislation that directly a ects family law. e PAC lobbyist has contact with, and access to, legislators involved with family law issues. Contributions to the PAC are the one way for you to help in uence legislation that directly a ects your practice as a family law lawyer. e Family Law PAC is the most important PAC since it a ects the lives of so many people, adults and children alike. Your assistance and contribution is needed to ensure that this PAC’s voice will continue to be heard and valued by the legislators in both the State Senate and the House of Representatives. Please help the PAC by making a contribution today!
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Please make your check payable to Family Law PAC. Please, no corporate checks. ank you for your assistance!
M M F L J 31 L U
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House Judiciary Host Presentations Regarding riculture and Rep. Tim Kelly (R-Saginaw Twp.) will be leaving Custody Reforms in July to take a position with the United States Department of Education. Rep. Jim Runestad (R-White Lake), chair of the House Judiciary committee has hosted several presentations before the committee from individuals and groups interested in Legislative Calendar child custody reforms. Rep. Runestad has been a steadfast Over the next few weeks, work on the 2017-2018 budget advocate for custody reforms and has been openly supportive will be completed. At that time, the Legislature will likely of a presumption of joint physical and legal custody in all divorce cases. recess for the summer. Judge Richard Halloran, Chair of the Family Law Sec- tion of the State Bar, recently addressed the committee and FLS Bill Tracking reported on the preliminary work the Council has completed with the creation of its “Parenting Solutions” workgroup. Below is legislation that is being monitored by the Family e workgroup has been meeting to discuss various concerns Law Section. All legislation can be found at www.michigan- with custody outcomes from across the state from many per- legislature.org for review. spectives as well as working to collect data to begin to get a sense of the problems and issues that may exist. Presently, HB 4026 - CRIMES, Domestic Violence, Include animal there are a lot of anecdotal stories of negative custody out- abuse crimes in denition of domestic violence under certain comes from specic parties to an action, but specic data circumstances. (Kosowski, Robert (D), 01/12/17) that speaks to the types of custody determinations, the num- (Status: 01/18/2017 - bill electronically reproduced ber of custody disputes and a geographical map of various 01/12/2017) outcomes has been lacking. e FLS workgroup will continue to meet and work HB 4096 - CIVIL PROCEDURE, Personal Protection Or- with the Legislature as they consider this issue. Further, Rep. ders, Allow child custody and child and spousal support to be Runestad has indicated that he will likely have legislation on included. (Kosowski, Robert (D), 01/26/17) the issue introduced in the coming weeks. (Status: 01/31/2017 - bill electronically reproduced 01/26/2017) Rep. John Kivela It is with great sadness that the members of the Michigan HB 4180 - FAMILY LAW, Domestic Violence, Revise refer- Legislature and all those who work in and around the legisla- ence to family independence agency in a certain act to depart- ture have had to say good bye to Rep. John Kivela (D-Mar- ment of health and human services. (Neeley, Sheldon A. (D), quette). Rep. Kivela passed away on Tuesday May 9. He was a 02/08/17) good legislator and advocate for the community he served and (Status: 02/09/2017 - bill electronically reproduced will be greatly missed. 02/08/2017)
Moving On Up! HB 4226 - LABOR, Benets, Establish leave time for care of newborn or adoption of child for certain employees. (Ko- Recently, two state lawmakers have announced their up- sowski, Robert (D), 02/15/17) coming resignations from the Michigan Legislature to serve at the Federal level. Sen. Mike Green (R-Mayville) will be leav- (Status: 02/16/2017 - bill electronically reproduced ing in June to work with the United States Department of Ag- 02/15/2017)
32 M F L J M HB 4268 - WEAPONS, Concealed, Allow certain individu- SB 0039 - PROBATE, Other, Revise exceptions to deni- als with a personal protection order to carry concealed pistol tion of surviving spouse in relation to a funeral representative. in no-carry zones, (Kelly, Tim (R), 02/23/17) (Jones, Rick (R), 01/18/17) (Status: 03/01/2017 - bill electronically reproduced (Status: 03/09/2017 - returned to Senate) 02/28/2017) SB 0222 - FAMILY LAW, Other, Repeal lewd and lascivious HB 4288 - FAMILY LAW, Other, Modify jurisdiction to es- cohabitation prohibition. (Bieda, Steven (D), 03/09/17) tablish a support order in certain circumstances under uni- (Status: 03/09/2017 - INTRODUCED BY SENATOR form interstate family support act (UIFSA) (Kesto, Klint (R), STEVEN BIEDA) 03/01/17) (Status: 03/02/2017 - bill electronically reproduced SB 0224 - CIVIL PROCEDURE, Service of Process, In- 03/01/2017) crease fees (Jones, Rick (R), 03/09/17) (Status: 03/09/2017 - INTRODUCED BY SENATOR HB 4312 - OCCUPATIONS, Attorneys, Modify eligibility RICK JONES) requirements for attorney licensed in another state to practice law in Michigan. (LaFave, Beau (R), 03/07/17) SB 0225 - CIVIL PROCEDURE, Service of Process, Amend (Status: 03/08/2017 - bill electronically reproduced cross-reference to reect amendment of provisions relating to 03/07/2017) fees for service of process (Jones, Rick (R), 03/09/17) (Status: 03/09/2017 - INTRODUCED BY SENATOR HB 4343 - CRIMINAL PROCEDURE, Records, Cre- RICK JONES) ate child abuse oenders registry. (Kosowski, Robert (D), 03/09/17) SB 0261 - CRIMINAL PROCEDURE, Records, Create child (Status: 03/14/2017 - bill electronically reproduced abuse oenders registry. (Hertel Jr., Curtis (D), 03/21/17) 03/09/2017) (Status: 03/21/2017 - INTRODUCED BY SENATOR CURTIS HERTEL) HB 4384 - CRIMINAL PROCEDURE, Records, Create child abuse oenders registry. (Hertel, Kevin (D), 03/21/17) SB 0262 - CRIMINAL PROCEDURE, Sentencing Guide- (Status: 03/22/2017 - bill electronically reproduced lines, Provide for sentencing guidelines for child abuse oend- 03/21/2017) ers registry act violation. (Jones, Rick (R), 03/21/17) (Status: 03/21/2017 - INTRODUCED BY SENATOR HB 4385 - CRIMINAL PROCEDURE, Records, Require RICK JONES) person convicted of certain child abuse oenses to register under the child abuse oender registry. (Lucido, Peter (R), SB 0263 - CRIMINAL PROCEDURE, Records, Require 03/21/17) persons convicted of certain child abuse oenses to register (Status: 03/22/2017 - bill electronically reproduced under the child abuse oender registry. (Schuitmaker, Tonya 03/21/2017) (R), 03/21/17) (Status: 03/21/2017 - INTRODUCED BY SENATOR HB 4386 - CRIMINAL PROCEDURE, Sentencing Guide- TONYA SCHUITMAKER) lines, Provide for sentencing guidelines for child abuse oend- ers registry act violation. (Guerra, Vanessa (D), 03/21/17)
(Status: 03/22/2017 - bill electronically reproduced 03/21/2017)
HB 4410 - PROBATE, Wills and Estates, Allow exempt property decedent to exclude adult child by written instru- ment. (Lucido, Peter (R), 03/23/17) (Status: 03/28/2017 - bill electronically reproduced 03/23/2017)
M M F L J 33 Out & About: FOC Public Calculator Training and Young Lawyers Summit
FOC Public Calculator Training sponsored by the Oakland County Bar Association Family Court Committee on April 19, 2017. Photo at left shows the Oakland County Friend of the Court Suzanne Hollyer and the OCFOC’s Pam Sala addressing the group.
Young Lawyers Summit at Crystal Mountain Resort on April 29, 2017. Pictured from L to R: Elizabeth Sadowski, Justice Stephen J. Markman of the Michigan Supreme Court, Shelley Kester and Jade Edwards.
Send us photos of your participation in bar events or seminars. E-mail us at Anthea Papista ([email protected]) and Amy Spilman ([email protected]). Please include names, dates, and description of the event.
34 Michigan Family Law Journal May 2017 M F L J F L S NON-PROFIT ORG S B M U.S. POSTAGE M F B PAID T S LANSING, MI L , M - PERMIT NO. 191