Monday, April 18, 2011
OAKLAND COUNTY BANKRUPTCY, HOME FORCLOSURE AND BANKRUPTCY IN FLINT AND BAY CITY ATTORNEY CALL (810) 235-1970
OAKLAND COUNTY DEBTOR QUESTION ON HOME FORCLOSURE AND BANKRUTPCY AUTOMATIC STAY. You mortgage holder can request the court to lift the automatic stay that is created when you file for bankruptcy in chapter 7 this is most common. In your bankrupcy home forclosures are stopped when you file. If you have income and your objective is to save your house your best solution may be to file Chapert 13 Bankruptcy. BANKRUTPCY ATTORNEY or LAWYER 810-235-1970 , Terry Bankert, will answer OAKLAND COUNTY Flint MI, Bay City, Owosso, Lapeer and Corunna question from people in debt that just need some answers. The topics you can ask as as follows. Remember we know its http://www.nojokebeingbroke.com/ Lifting of the automatic stay also occurs to allow the eviction of a month-to-month tenand and the repossession of a car. More questions? Call Flint Bankruptcy Attorney Terry Bankert 810-23501879.
Sunday, June 6, 2010
OAKLAND COUNTY DIVORCE PRESENTED BY FLINT DIVORCE LAWYER TERRY BANKERT 235-1970
2003 Mich. App. LEXIS 3154, *
CARLA K. LINDEEN, f/k/a CARLA K. STINSON, Plaintiff-Appellee, v ROBERT LEE STINSON, Defendant-Appellant.
No. 248264
COURT OF APPEALS OF MICHIGAN
2003 Mich. App. LEXIS 3154
December 9, 2003, Decided NOTICE: [*1] THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS. PRIOR HISTORY: Oakland Circuit Court. LC No. 00-632191-DM. DISPOSITION: Affirmed.
JUDGES: Before: Cavanagh, P.J., and Jansen and O'Connell, JJ.
OPINIONPER CURIAM.Defendant appeals as of right from an order granting sole legal custody and sole physical custody of the parties' minor child to plaintiff. We affirm.
I.Plaintiff and defendant were divorced on December 18, 2000. The terms of the Judgment of Divorce specified that plaintiff and defendant would share joint physical and legal custody of their only minor child, Robert, who was born on December 11, 1996.
Plaintiff's residence was considered Robert's primary residence.
Under the divorce judgment, defendant's parenting time included every other weekend, every Tuesday night to Wednesday morning, two non-consecutive seven-day periods in the winter, and four non-consecutive seven-day periods in the summer, with alternating holidays.
On July 25, 2001, plaintiff filed a petition to change the custody of Robert from joint legal and physical custody to sole legal and physical custody for plaintiff. [*2]
On September 21, 2001, the trial court began an evidentiary hearing on plaintiff's petition to change custody, which continued over four days. On April 7, 2003, the trial court ordered that plaintiff be awarded sole legal custody and sole physical custody of the parties' minor child.
II.Defendant argues that the trial court erred in granting sole legal and sole physical custody to plaintiff by ignoring facts in the evidentiary hearing favoring defendant, and that application of those ignored facts require a reversal, restoring defendant's parental rights.
We disagree.
A multifaceted standard of review is applied to a custody issue.
The trial court's custody order must be affirmed unless its findings were against the great weight of the evidence, it committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28.
The trial court's findings with regard to each factor affecting custody should be affirmed "unless the evidence clearly preponderates in the opposite direction . . . ." Hilliard v Schmidt, 231 Mich. App. 316, 321; 586 N.W.2d 263 (1998).
The trial court's discretionary rulings, [*3] including to whom it granted custody, are reviewed for an abuse of discretion. Id. Upon a finding of error, appellate courts should remand to the trial court unless the error was harmless. Fletcher v Fletcher, 447 Mich. 871, 882; 526 N.W.2d 889 (1994).
There are eleven statutory factors provided in § 3 of the Child Custody Act that the court must consider in order to determine the best interests of children in custody cases. MCL 722.23.
With each factor, the court must consider and explicitly state its findings and conclusions. Bowers v Bowers, 190 Mich. App. 51, 55; 475 N.W.2d 394 (1991).
The best interests of the child are determined by "the sum total of the following factors":
(a The love, affection, and other emotional ties existing between the parties involved and the child.
(b The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c The capacity and disposition of the parties involved to provide the child with food, clothing, medical care [*4] or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e The permanence, as a family unit, of the existing or proposed custodial home, or homes.
(f) The moral fitness of the parties involved.
(g The mental and physical health of the parties involved.
(h The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Any other factor considered by the court to be relevant to a particular child custody dispute. [MCL 722.23; Bowers v Bowers, 198 Mich. App. 320, 327-328; 497 N.W.2d 602 (1993).]
Defendant argues that the court failed to apply the facts evenly with respect to factors (a), (b), (c), (e), (g), (i) and [*5] (k).
The Court's findings with regard to factors (a), (b), (c), (e), (g), (i) and (k) are affirmed because the evidence does not clearly preponderate in the opposite direction. See Hillard, supra at 321.
The trial court did not abuse its discretion in deciding that plaintiff should gain sole legal and physical custody of Robert. See Id.
A. Established Custodial EnvironmentUnder the Child Custody Act, a court may not change custody to change the established custodial environment unless presented with clear and convincing evidence that a change is in the best interests of the child. MCL 722.27(1)(c);
LaFleche v Ybarra, 242 Mich. App. 692, 697; 619 N.W.2d 738 (2000). The party moving for custody bears the burden of establishing by clear and convincing evidence that a change in custody is in the best interests of the minor. Mann v Mann, 190 Mich. App. 526, 535; 476 N.W.2d 439 (1991).
In a petition for custody change, the first step is to determine the established custodial environment. Curless v Curless, 137 Mich. App. 673, 676; 357 N.W.2d 921 (1984).
Plaintiff stipulated [*6] that a custodial environment existed with both parties. Therefore, plaintiff must show through clear and convincing evidence that a change of custody is in the minor's best interest. LaFleche, supra at 697.
The court must find a compelling reason to change custody, requiring more than a marginal improvement in the minor's life. Carson v Carson, 156 Mich. App. 291, 301; 401 N.W.2d 632 (1986).
B. Best Interest Factors 1. Factor (a)Factor (a), MCL 722.23(a), examines "the love, affection, and other emotional ties existing between the parties involved and the child." See also Hillard, supra at 321-322.
Defendant argues that the trial court committed legal error because the trial court's findings failed to take all the evidence into consideration.
Specifically, defendant argues that evidence that John Neumann, an employee of Impact Counseling Services, witnessed that defendant and Robert have a strong love, affection, and emotional bond was not properly considered.
While it is true that Neumann observed this, the court did take this fact into consideration when making its determination on this factor.
The trial [*7] court's findings were not against the great weight of the evidence. See MCL 722.28.
Neumann stated that the supervised visits between defendant and Robert went well, that Robert was captivated by defendant, and that Robert was emotional and clingy with defendant.
However, defendant also missed two out of five of his scheduled visits with Robert, without notification. Although defendant was aware that his parenting time with Robert would be suspended until a court ordered psychological evaluation occurred, defendant refused to submit to the evaluation because of procedural aspects.
Plaintiff also testified that at times when Robert was with defendant, Robert would return to her care or call her crying to come home because he did not want to be with defendant.
The trial court did not fail to take evidence in defendant's favor into consideration. Further, upon review of the record, there was sufficient evidence to support the trial court's findings with respect to factor (a).2. Factor (b)The second factor, MCL 722.23(b), looks at "the capacity and disposition of the parties involved to give the child love, affection, and guidance and [*8] to continue the education and raising of the child in his or her religion or creed, if any." See Fletcher, supra at 26.
Under factor (b), defendant argues that he has the equivalent capacity and disposition to give the child love, affection, guidance, and to continue the education of the child. In support of this, defendant states that there was "no direct credible testimony offered that [defendant] ever told his son about the 'boogie man' 1 or played a 'stupid game' 2 with him."
FOOTNOTES1
There is evidence that defendant told Robert that the "boogie man" lived at plaintiff's house and came out at night.2
There is evidence of defendant and Robert playing the "stupid game," which is a game where defendant would call Robert stupid and Robert would call defendant stupid.
First, when reviewing a trial court's findings, this Court generally will not weigh the credibility of a witness or replace its assessment of the testimony for that of the trial court. MCR 2.613(C); Fletcher, supra at 890 [*9] .
However, a court cannot immunize its findings from review by alleging that they are found on pure credibility determinations in light of other evidence. Beason v Beason, 435 Mich. 791, 804; 460 N.W.2d 207 (1990).
In this case, there was no testimony contrary to the findings that defendant told Robert about the "boogie man" and played the "stupid game" with him.
Although plaintiff was the only witness to allege that defendant was participating in these activities with Robert, the trial court may factor in the credibility of the witnesses, and absent evidence that disputes the testimony, find that plaintiff's version of the events is credible. MCR 2.613(C); Fletcher, supra at 890; Beason, supra at 804.Second, the court did not make its determination with regard to factor (b) based on the statements about the 'boogie man' and the 'stupid game' alone.
In one incident that occurred at Kindercare, Robert said that he was going to bring a gun to school and shoot someone.
In response to the incident, defendant would not answer Kindercare's question of whether Robert had access to guns and Robert was subsequently not allowed [*10] back into the program.
Robert also told plaintiff that defendant encouraged him to say bad words. There is evidence that after defendant's parenting time, Robert would use foul language. And there is evidence that since defendant's parenting time has stopped, Robert no longer uses foul language.
Because the court may determine the credibility of the witness and because the factor was determined in plaintiff's favor due to various other factors, there is no indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.3.
Factor (c)The third factor, MCL 722.23(c), looks at "the capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs."
Defendant argues that under factor (c), there is no testimony showing that defendant was not employed and could not care for his son's needs.The court noted that as of March 27, 2003, the Friend of the Court records show that defendant owed $ 1,431.92 in back child support and $ 52 in fees, for [*11] a total of $ 1,483.92. 3 Although there was no testimony that defendant was not employed, as defendant argues, there is no evidence that he was still employed.
Defendant had an opportunity to testify to his employment at the evidentiary hearing and to submit his findings of facts and conclusions of law to the court, which he chose not to do.
Further, the court's decision on this factor was not based on the inconclusive nature of defendant's employment alone, but rather, it included defendant's delinquency in child support payments.
Because the factor was determined in plaintiff's favor due to the inconclusive status of defendant's employment and his child support payments being in arrears, there is no indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.FOOTNOTES3
We find no evidentiary support for this claim in the lower court file, and are relying solely on the trial court's statement on this matter.4.
Factor (e)The fifth factor, MCL 722.23(e) [*12] , looks at "the permanence, as a family unit, of the existing or proposed custodial home or homes." Defendant argued that factor (e) was wrongly decided because no testimony was offered to show that defendant could not and did not provide a permanent family unit for Robert absent interference by plaintiff. Defendant also stated that evidence concerning the benefits of extended contact between defendant and Robert could not be offered due to plaintiff's efforts to keep them apart.
The court did not state that defendant could not or did not offer a permanent family unit for Robert, but rather, that there was no evidence to show that defendant did offer a permanent family unit.
Supporting the permanent family unit with plaintiff, Dr. Heyna Rachmiel, an employee at the Oakland County Psychological Clinic, stated that plaintiff and Richard Davis would be effective parents to Robert.
Plaintiff has had sole physical custody of Robert since defendant's parenting time was suspended on July 31, 2001, pending the results of a psychological evaluation.
Plaintiff stated that Robert benefited from her having sole physical custody and has been a lot more stable, with improved behavior and more [*13] consistency.
Because there was evidence to show that plaintiff did offer a permanent family unit to Robert, and no evidence whether defendant could, there is not an indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.
Further, defendant contends there is a lack of evidence because plaintiff interfered with his ability to have contact with his son.
However, the facts indicate that defendant skipped two planned visits with his son without prior notification.
Defendant did not submit to a court ordered psychological examination until sixteen months after it was ordered, which prevented him from having visitation with his son.
Defendant admitted that he knew his parenting time was suspended pending the evaluation, but his inability to follow policy regarding the recording of the evaluation prohibited him from fulfilling the court's requirements.
Rachmiel also indicated that plaintiff did not appear to be mean-spirited in her attempt to restrict defendant's parenting time, but instead, plaintiff acted out of a genuine concern for Robert's best interests.
These reasons, which are in no way plaintiff's fault, but are solely [*14] the fault of defendant, are the factors that have prevented him from having contact with his son.
5. Factor (g)The seventh factor, MCL 722.23(g), examines "the mental and physical health of the parties involved." Defendant suggests that factor (g) was against the great weight of the evidence, stating that he is mentally competent to care for his son.
Defendant relies on the facts that he has been found by Michael Brock, a master level psychologist and certified social worker, to have attained a reasonable degree of success in his field of employment and that "any alleged negative psychological attributes have been controlled by [defendant] to allow him to function."
The court's decision, that the factor of mental and physical competence favor plaintiff is not against the great weight of the evidence. Officer Dale Waldo, Pontiac Police Department, testified that during defendant's arrest on September 5, 2001, defendant was "on the verge" and that defendant's demeanor was "kind of shaky." Waldo said that he could not recall someone "so agitated for such a length of time."
Waldo also stated that defendant questioned and resisted almost everything the police [*15] asked him to do.
Defendant told Brock, during a psychological evaluation, that he believed that Judge Elizabeth Pezzetti either had him under surveillance or was privy to surveillance information on him.
Defendant stated that he was by himself when he drove Robert down to Disney World, apparently without informing plaintiff, leaving Michigan at approximately 5:00 a.m. and reaching Orlando at about 10:00 p.m.
Defendant stated that, overall, the weekend car trip to Disney World was a positive experience for Robert.
Defendant said that it was possible that he called Michelle Parker, director of Prodigy Child Development Center, a "thing" and a "bitch" during an evidentiary hearing and admitted to calling Karen Ross, plaintiff's attorney, a "big fat lying pig."
Defendant stated that he did not find it inappropriate to make these comments.
Roy Jones, Jr., a Friend of the Court referee, conducted an evidentiary hearing for child support in this case. Jones stated that defendant's behavior at the time of the hearing was inappropriate and abusive to the point that Jones had to ask defendant to leave the room.
Tiffany Martinez, an employee at HAVEN, had an interview with defendant on August 26, 2002, that [*16] lasted for an hour and a half.
Defendant let Martinez know during the intake that he would not fill out any more than his name and address on the paperwork.
Martinez repeatedly told defendant that it was his choice on whether to fill out the paperwork, but if he did not complete it, he would not be accepted into the program.
About an hour into the intake process, Martinez noticed that he was tape recording the session without notice or permission.
Martinez told defendant that he must turn off the tape recorder, or the interview would stop.
Defendant refused to stop taping and Martinez reluctantly agreed to continue the interview.
After five to ten minutes, Martinez again said that defendant had to turn off the tape recorder, and when defendant would not comply, Martinez stopped the interview. According to Martinez, defendant's demeanor changed at this point and he seemed panicky.
Defendant told Martinez that he wanted the paperwork back. Defendant walked over to her quickly and ripped the paperwork from her hand and began to tear it up.
Once he had finished tearing up the paperwork he stuffed it in his pockets and left. Martinez stated that defendant made her feel uneasy and labeled [*17] his behavior as desperate and unpredictable.
Officer Todd Chatterson, of the Oakland County Sheriff's Department, stated that on November 25, 2002, he responded to the Oakland County Mental Health Department in regard to defendant.
Defendant was told that he could not videotape in that office because there were legal documents there. Defendant began to yell. Defendant lunged his video camera at Chatterson. Chatterson grabbed the video camera and defendant's arm to check him for weapons.
Once assured that defendant did not have a weapon, Chatterson released defendant. Defendant claimed that Chatterson hurt him, walked out into the waiting room and called 9-1-1.
Chatterson's lieutenant and sergeant came to the scene and interviewed defendant. Defendant eventually left the psychological clinic and an arrest warrant was subsequently issued for disturbing the peace.
Officer James Gregory, of the Oakland County Sheriff's Department, issued a police report involving defendant on December 2, 2002.
When defendant was spotted at the Oakland County courthouse, defendant was advised of the warrant and placed in custody. Defendant was asked to step onto an elevator and he refused to comply.
Defendant [*18] was unresponsive to the officers' commands to exit the elevator, and when an officer touched defendant's arm to escort him out, defendant fell to the floor screaming that the officers were abusing him.Defendant testified that when Neumann interviewed him, he refused to state his employer, instead saying he worked for George W. Bush.
Defendant claimed it was none of Neumann's business who he worked for. When asked why he did not comply with Neumann's requests if he wanted to have parenting time with his son, defendant stated:
Very simply because I will not be held hostage by people asking for things that are not part of their, it's not their business to have. And to have people be allowed to request anything or everything or I don't get to see my son, I mean he made that very clear to me. He's holding me hostage for the information so he could force me down the counseling path and other things. And I told him that was not what I was here for.
Defendant's intake session with Neumann was then terminated.Brock testified that he completed a psychological examination on defendant.
The results of the psychological examination, which also included a medical social questionnaire [*19] and a Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") that were administered on August 15, 2002, diagnosed defendant with a paranoid personality disorder.
In reviewing factors leading to the diagnosis of paranoid personality, Brock explained the evidence supporting the diagnosis.
With regard to the incident at Kindercare, Brock stated that defendant inappropriately handled the situation and caused a lot of trauma for his own child and the other children at the daycare by involving the police.
Brock noted also that defendant hired and fired the same trial counsel more than once, keeping with his general suspicion of everyone.
Brock even found that defendant was suspicious of him while he was evaluating defendant. Brock stated that defendant's paranoid personality disorder could indirectly harm Robert because of defendant's inappropriate decisions, involving bad judgments based on his perception of being persecuted.
Brock also considered defendant telling Robert about the "boogie man", playing the "stupid game" and using foul language in front of his son as bad parenting skills, but stated that these things would not be reasons to eliminate parenting time from defendant. Brock [*20] indicated that defendant functions at a reasonably high level with regard to his professional performance.
Defendant's reliance on his reasonable degree of success in his employment is not a relevant factor in determining his mental health. As defendant indicated, despite his negative psychological attributes, all that a reasonable degree of success in his field of employment indicates is that he can function.
The statutory factors are used to ascertain "the best interest of the child." MCL 722.23.
It is not against the great weight of the evidence for the court to favor plaintiff over defendant, who has had many situations where his mental health has been called into question, and who has been diagnosed with a personality disorder, but who can function enough to maintain employment.
6. Factor (i)The ninth factor, MCL 722.23(i) is "the reasonable preference of the child, if the court considers the child to be of sufficient age to express preference." Defendant contends that the court erred in failing to interview the minor child to determine the reasonable preference of the child under factor (i).
The court stated that "the factor [*21] is not applicable in this case."At the conclusion of the evidentiary hearing in January 2003, the child was six years old.
The trial court has the discretion to determine whether a child is of sufficient age to express a reasonable preference regarding custody arrangements. Dempsey v Dempsey, 96 Mich. App. 276, 282-283; 292 N.W.2d 549, modified on other grounds 409 Mich. 495 (1980).
This Court has previously found clear error where a trial court failed to discover the preferences of children as young as six and nine years old. Bowers, supra at 55-56.
The court did consider Robert's reasonable preference and found it to be inapplicable in this case.
In Treutle v Treutle, 197 Mich. App. 690, 695-696; 495 N.W.2d 836 (1992), the Court found that the trial court had considered the reasonable preference of the child despite the fact that it failed to interview the child. The trial court in Treutle, supra, decided that there was no need to talk to the child because there was no opinion the minor could have expressed that would have affected the case. Id.
In this case, the court [*22] also considered the preference of the minor child and stated that, "the factor is not applicable in this case." The court found in favor of plaintiff with regard to factors (a), (b), (c), (d), (e), (g), (h), (j), (k), and (l). The court did not find in favor of defendant with regard to any of the factors, but found plaintiff and defendant equal in reference to factor (f).
The child's preference does not automatically outweigh the other evidence, but is only one element to evaluate in determining the best interests of the child DeGrow v DeGrow, 112 Mich. App. 260, 271; 315 N.W.2d 915 (1982).
The trial court, therefore, did not err in failing to interview Robert where it considered Robert's reasonable preference, and found it to be inapplicable.7.
Factor (k)The eleventh factor, MCL 722.23(k), looks at "domestic violence, regardless of whether the violence was directed against or witnessed by the child." Defendant argues that, under factor (k), the court should not have favored plaintiff because there was no evidence of domestic violence.
The court specifically stated that, "aside from the incidents prompting Plaintiff to petition [*23] for and the Court to issue a PPO against Defendant, domestic violence has not been an issue in this proceeding.
Plaintiff is slightly favored on this factor."On April 13, 2001, plaintiff filed a petition requesting an ex parte personal protection order (PPO) against defendant. Plaintiff stated in the petition that defendant had been stalking her, had come to her house without permission, and had been making threatening phone calls to her home and employment.When issuing a PPO under MCL 600.2950(1), the court may restrain "a former spouse . . . from doing 1 or more of the following":
(a Entering onto premises.
(b Assaulting, attacking, beating, molesting, or wounding a named individual.
(c Threatening to kill or physically injure a named individual.
(d Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
(e Purchasing or possessing a firearm.
(f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises that are solely owned or leased by the [*24] individual to be restrained or enjoined.
(g Interfering with petitioner at petitioner's place of employment or education or engaging in conduct that impairs petitioner's employment or educational relationship or environment.
(h Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner's minor child or about petitioner's employment address.(
i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.Further, the court must have cause to issue a PPO:
The court shall issue a personal protection order under this section if the court determines that there is reasonable cause to believe that the individual to be restrained or enjoined may commit 1 or more of the acts listed in subsection (1). [MCL 600.9250(4).] [*25]
The court previously determined that reasonable cause existed to believe that plaintiff might require a PPO against defendant. Therefore, it is not against the great weight of the evidence for the court to "slightly" favor plaintiff with regard to this factor. C.
ConclusionIn viewing the "sum total" of the factors under MCL 722.23, the court did not abuse its discretion in determining that granting sole legal and sole physical custody of Robert to plaintiff was in the best interest of the child. Hillard, supra at 321. Nine of the eleven factors under MCL 722.23 were decided in favor of plaintiff, including (a), (b), (c), (d), (e), (g), (h), (j), and (k). The court found factor (f), the moral fitness of the parties involved, equal between the parties.
The court further expounded under factor (l), in which the court may incorporate discretionary factors it finds relevant, that defendant's behavior and lack of respect for plaintiff, counsel, the court, and other individuals was "very disturbing," noting specifically that the court had held defendant in criminal contempt, placing him in jail for two days. Defendant stated in his [*26] closing argument that the court had improperly held him in contempt of court. Specifically, defendant stated:
I'm not sure what the full reasons were, but [the court] accused me of calling [it] a lying sack of s---. I think maybe somebody has better terms than that. My comments were that [the court was] a lying sack of whatever.
The court also stated that it was "very concerned about Defendant's mental stability and his overall ability to parent at this time."
We conclude that the trial court's findings were not against the great weight of the evidence, and even if factor (i), the reasonable preference of the child, which was not examined, was found to favor defendant, the court did not abuse its discretion in determining that granting sole legal and sole physical custody of the minor to plaintiff was in the best interest of the child. Hillard, supra at 321.
III.Defendant next argues that the trial court erred in not considering the preference of the minor child. Questions of law are reviewed for clear legal error, and a trial court commits legal error when it incorrectly chooses, interprets, or applies the law. Phillips v Jordan, 241 Mich. App. 17, 20; [*27] 614 N.W.2d 183 (2000). As stated in, hereinbefore, Robert's reasonable preference was considered and determined inapplicable. Thus, there is no legal error requiring reversal.
Affirmed./s/ Mark J. Cavanagh/s/ Kathleen Jansen/s/ Peter D. O'Connell
CARLA K. LINDEEN, f/k/a CARLA K. STINSON, Plaintiff-Appellee, v ROBERT LEE STINSON, Defendant-Appellant.
No. 248264
COURT OF APPEALS OF MICHIGAN
2003 Mich. App. LEXIS 3154
December 9, 2003, Decided NOTICE: [*1] THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS. PRIOR HISTORY: Oakland Circuit Court. LC No. 00-632191-DM. DISPOSITION: Affirmed.
JUDGES: Before: Cavanagh, P.J., and Jansen and O'Connell, JJ.
OPINIONPER CURIAM.Defendant appeals as of right from an order granting sole legal custody and sole physical custody of the parties' minor child to plaintiff. We affirm.
I.Plaintiff and defendant were divorced on December 18, 2000. The terms of the Judgment of Divorce specified that plaintiff and defendant would share joint physical and legal custody of their only minor child, Robert, who was born on December 11, 1996.
Plaintiff's residence was considered Robert's primary residence.
Under the divorce judgment, defendant's parenting time included every other weekend, every Tuesday night to Wednesday morning, two non-consecutive seven-day periods in the winter, and four non-consecutive seven-day periods in the summer, with alternating holidays.
On July 25, 2001, plaintiff filed a petition to change the custody of Robert from joint legal and physical custody to sole legal and physical custody for plaintiff. [*2]
On September 21, 2001, the trial court began an evidentiary hearing on plaintiff's petition to change custody, which continued over four days. On April 7, 2003, the trial court ordered that plaintiff be awarded sole legal custody and sole physical custody of the parties' minor child.
II.Defendant argues that the trial court erred in granting sole legal and sole physical custody to plaintiff by ignoring facts in the evidentiary hearing favoring defendant, and that application of those ignored facts require a reversal, restoring defendant's parental rights.
We disagree.
A multifaceted standard of review is applied to a custody issue.
The trial court's custody order must be affirmed unless its findings were against the great weight of the evidence, it committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28.
The trial court's findings with regard to each factor affecting custody should be affirmed "unless the evidence clearly preponderates in the opposite direction . . . ." Hilliard v Schmidt, 231 Mich. App. 316, 321; 586 N.W.2d 263 (1998).
The trial court's discretionary rulings, [*3] including to whom it granted custody, are reviewed for an abuse of discretion. Id. Upon a finding of error, appellate courts should remand to the trial court unless the error was harmless. Fletcher v Fletcher, 447 Mich. 871, 882; 526 N.W.2d 889 (1994).
There are eleven statutory factors provided in § 3 of the Child Custody Act that the court must consider in order to determine the best interests of children in custody cases. MCL 722.23.
With each factor, the court must consider and explicitly state its findings and conclusions. Bowers v Bowers, 190 Mich. App. 51, 55; 475 N.W.2d 394 (1991).
The best interests of the child are determined by "the sum total of the following factors":
(a The love, affection, and other emotional ties existing between the parties involved and the child.
(b The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
(c The capacity and disposition of the parties involved to provide the child with food, clothing, medical care [*4] or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e The permanence, as a family unit, of the existing or proposed custodial home, or homes.
(f) The moral fitness of the parties involved.
(g The mental and physical health of the parties involved.
(h The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
(k) Any other factor considered by the court to be relevant to a particular child custody dispute. [MCL 722.23; Bowers v Bowers, 198 Mich. App. 320, 327-328; 497 N.W.2d 602 (1993).]
Defendant argues that the court failed to apply the facts evenly with respect to factors (a), (b), (c), (e), (g), (i) and [*5] (k).
The Court's findings with regard to factors (a), (b), (c), (e), (g), (i) and (k) are affirmed because the evidence does not clearly preponderate in the opposite direction. See Hillard, supra at 321.
The trial court did not abuse its discretion in deciding that plaintiff should gain sole legal and physical custody of Robert. See Id.
A. Established Custodial EnvironmentUnder the Child Custody Act, a court may not change custody to change the established custodial environment unless presented with clear and convincing evidence that a change is in the best interests of the child. MCL 722.27(1)(c);
LaFleche v Ybarra, 242 Mich. App. 692, 697; 619 N.W.2d 738 (2000). The party moving for custody bears the burden of establishing by clear and convincing evidence that a change in custody is in the best interests of the minor. Mann v Mann, 190 Mich. App. 526, 535; 476 N.W.2d 439 (1991).
In a petition for custody change, the first step is to determine the established custodial environment. Curless v Curless, 137 Mich. App. 673, 676; 357 N.W.2d 921 (1984).
Plaintiff stipulated [*6] that a custodial environment existed with both parties. Therefore, plaintiff must show through clear and convincing evidence that a change of custody is in the minor's best interest. LaFleche, supra at 697.
The court must find a compelling reason to change custody, requiring more than a marginal improvement in the minor's life. Carson v Carson, 156 Mich. App. 291, 301; 401 N.W.2d 632 (1986).
B. Best Interest Factors 1. Factor (a)Factor (a), MCL 722.23(a), examines "the love, affection, and other emotional ties existing between the parties involved and the child." See also Hillard, supra at 321-322.
Defendant argues that the trial court committed legal error because the trial court's findings failed to take all the evidence into consideration.
Specifically, defendant argues that evidence that John Neumann, an employee of Impact Counseling Services, witnessed that defendant and Robert have a strong love, affection, and emotional bond was not properly considered.
While it is true that Neumann observed this, the court did take this fact into consideration when making its determination on this factor.
The trial [*7] court's findings were not against the great weight of the evidence. See MCL 722.28.
Neumann stated that the supervised visits between defendant and Robert went well, that Robert was captivated by defendant, and that Robert was emotional and clingy with defendant.
However, defendant also missed two out of five of his scheduled visits with Robert, without notification. Although defendant was aware that his parenting time with Robert would be suspended until a court ordered psychological evaluation occurred, defendant refused to submit to the evaluation because of procedural aspects.
Plaintiff also testified that at times when Robert was with defendant, Robert would return to her care or call her crying to come home because he did not want to be with defendant.
The trial court did not fail to take evidence in defendant's favor into consideration. Further, upon review of the record, there was sufficient evidence to support the trial court's findings with respect to factor (a).2. Factor (b)The second factor, MCL 722.23(b), looks at "the capacity and disposition of the parties involved to give the child love, affection, and guidance and [*8] to continue the education and raising of the child in his or her religion or creed, if any." See Fletcher, supra at 26.
Under factor (b), defendant argues that he has the equivalent capacity and disposition to give the child love, affection, guidance, and to continue the education of the child. In support of this, defendant states that there was "no direct credible testimony offered that [defendant] ever told his son about the 'boogie man' 1 or played a 'stupid game' 2 with him."
FOOTNOTES1
There is evidence that defendant told Robert that the "boogie man" lived at plaintiff's house and came out at night.2
There is evidence of defendant and Robert playing the "stupid game," which is a game where defendant would call Robert stupid and Robert would call defendant stupid.
First, when reviewing a trial court's findings, this Court generally will not weigh the credibility of a witness or replace its assessment of the testimony for that of the trial court. MCR 2.613(C); Fletcher, supra at 890 [*9] .
However, a court cannot immunize its findings from review by alleging that they are found on pure credibility determinations in light of other evidence. Beason v Beason, 435 Mich. 791, 804; 460 N.W.2d 207 (1990).
In this case, there was no testimony contrary to the findings that defendant told Robert about the "boogie man" and played the "stupid game" with him.
Although plaintiff was the only witness to allege that defendant was participating in these activities with Robert, the trial court may factor in the credibility of the witnesses, and absent evidence that disputes the testimony, find that plaintiff's version of the events is credible. MCR 2.613(C); Fletcher, supra at 890; Beason, supra at 804.Second, the court did not make its determination with regard to factor (b) based on the statements about the 'boogie man' and the 'stupid game' alone.
In one incident that occurred at Kindercare, Robert said that he was going to bring a gun to school and shoot someone.
In response to the incident, defendant would not answer Kindercare's question of whether Robert had access to guns and Robert was subsequently not allowed [*10] back into the program.
Robert also told plaintiff that defendant encouraged him to say bad words. There is evidence that after defendant's parenting time, Robert would use foul language. And there is evidence that since defendant's parenting time has stopped, Robert no longer uses foul language.
Because the court may determine the credibility of the witness and because the factor was determined in plaintiff's favor due to various other factors, there is no indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.3.
Factor (c)The third factor, MCL 722.23(c), looks at "the capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs."
Defendant argues that under factor (c), there is no testimony showing that defendant was not employed and could not care for his son's needs.The court noted that as of March 27, 2003, the Friend of the Court records show that defendant owed $ 1,431.92 in back child support and $ 52 in fees, for [*11] a total of $ 1,483.92. 3 Although there was no testimony that defendant was not employed, as defendant argues, there is no evidence that he was still employed.
Defendant had an opportunity to testify to his employment at the evidentiary hearing and to submit his findings of facts and conclusions of law to the court, which he chose not to do.
Further, the court's decision on this factor was not based on the inconclusive nature of defendant's employment alone, but rather, it included defendant's delinquency in child support payments.
Because the factor was determined in plaintiff's favor due to the inconclusive status of defendant's employment and his child support payments being in arrears, there is no indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.FOOTNOTES3
We find no evidentiary support for this claim in the lower court file, and are relying solely on the trial court's statement on this matter.4.
Factor (e)The fifth factor, MCL 722.23(e) [*12] , looks at "the permanence, as a family unit, of the existing or proposed custodial home or homes." Defendant argued that factor (e) was wrongly decided because no testimony was offered to show that defendant could not and did not provide a permanent family unit for Robert absent interference by plaintiff. Defendant also stated that evidence concerning the benefits of extended contact between defendant and Robert could not be offered due to plaintiff's efforts to keep them apart.
The court did not state that defendant could not or did not offer a permanent family unit for Robert, but rather, that there was no evidence to show that defendant did offer a permanent family unit.
Supporting the permanent family unit with plaintiff, Dr. Heyna Rachmiel, an employee at the Oakland County Psychological Clinic, stated that plaintiff and Richard Davis would be effective parents to Robert.
Plaintiff has had sole physical custody of Robert since defendant's parenting time was suspended on July 31, 2001, pending the results of a psychological evaluation.
Plaintiff stated that Robert benefited from her having sole physical custody and has been a lot more stable, with improved behavior and more [*13] consistency.
Because there was evidence to show that plaintiff did offer a permanent family unit to Robert, and no evidence whether defendant could, there is not an indication that the evidence for this factor clearly preponderates in the opposite direction. Hillard, supra at 321.
Further, defendant contends there is a lack of evidence because plaintiff interfered with his ability to have contact with his son.
However, the facts indicate that defendant skipped two planned visits with his son without prior notification.
Defendant did not submit to a court ordered psychological examination until sixteen months after it was ordered, which prevented him from having visitation with his son.
Defendant admitted that he knew his parenting time was suspended pending the evaluation, but his inability to follow policy regarding the recording of the evaluation prohibited him from fulfilling the court's requirements.
Rachmiel also indicated that plaintiff did not appear to be mean-spirited in her attempt to restrict defendant's parenting time, but instead, plaintiff acted out of a genuine concern for Robert's best interests.
These reasons, which are in no way plaintiff's fault, but are solely [*14] the fault of defendant, are the factors that have prevented him from having contact with his son.
5. Factor (g)The seventh factor, MCL 722.23(g), examines "the mental and physical health of the parties involved." Defendant suggests that factor (g) was against the great weight of the evidence, stating that he is mentally competent to care for his son.
Defendant relies on the facts that he has been found by Michael Brock, a master level psychologist and certified social worker, to have attained a reasonable degree of success in his field of employment and that "any alleged negative psychological attributes have been controlled by [defendant] to allow him to function."
The court's decision, that the factor of mental and physical competence favor plaintiff is not against the great weight of the evidence. Officer Dale Waldo, Pontiac Police Department, testified that during defendant's arrest on September 5, 2001, defendant was "on the verge" and that defendant's demeanor was "kind of shaky." Waldo said that he could not recall someone "so agitated for such a length of time."
Waldo also stated that defendant questioned and resisted almost everything the police [*15] asked him to do.
Defendant told Brock, during a psychological evaluation, that he believed that Judge Elizabeth Pezzetti either had him under surveillance or was privy to surveillance information on him.
Defendant stated that he was by himself when he drove Robert down to Disney World, apparently without informing plaintiff, leaving Michigan at approximately 5:00 a.m. and reaching Orlando at about 10:00 p.m.
Defendant stated that, overall, the weekend car trip to Disney World was a positive experience for Robert.
Defendant said that it was possible that he called Michelle Parker, director of Prodigy Child Development Center, a "thing" and a "bitch" during an evidentiary hearing and admitted to calling Karen Ross, plaintiff's attorney, a "big fat lying pig."
Defendant stated that he did not find it inappropriate to make these comments.
Roy Jones, Jr., a Friend of the Court referee, conducted an evidentiary hearing for child support in this case. Jones stated that defendant's behavior at the time of the hearing was inappropriate and abusive to the point that Jones had to ask defendant to leave the room.
Tiffany Martinez, an employee at HAVEN, had an interview with defendant on August 26, 2002, that [*16] lasted for an hour and a half.
Defendant let Martinez know during the intake that he would not fill out any more than his name and address on the paperwork.
Martinez repeatedly told defendant that it was his choice on whether to fill out the paperwork, but if he did not complete it, he would not be accepted into the program.
About an hour into the intake process, Martinez noticed that he was tape recording the session without notice or permission.
Martinez told defendant that he must turn off the tape recorder, or the interview would stop.
Defendant refused to stop taping and Martinez reluctantly agreed to continue the interview.
After five to ten minutes, Martinez again said that defendant had to turn off the tape recorder, and when defendant would not comply, Martinez stopped the interview. According to Martinez, defendant's demeanor changed at this point and he seemed panicky.
Defendant told Martinez that he wanted the paperwork back. Defendant walked over to her quickly and ripped the paperwork from her hand and began to tear it up.
Once he had finished tearing up the paperwork he stuffed it in his pockets and left. Martinez stated that defendant made her feel uneasy and labeled [*17] his behavior as desperate and unpredictable.
Officer Todd Chatterson, of the Oakland County Sheriff's Department, stated that on November 25, 2002, he responded to the Oakland County Mental Health Department in regard to defendant.
Defendant was told that he could not videotape in that office because there were legal documents there. Defendant began to yell. Defendant lunged his video camera at Chatterson. Chatterson grabbed the video camera and defendant's arm to check him for weapons.
Once assured that defendant did not have a weapon, Chatterson released defendant. Defendant claimed that Chatterson hurt him, walked out into the waiting room and called 9-1-1.
Chatterson's lieutenant and sergeant came to the scene and interviewed defendant. Defendant eventually left the psychological clinic and an arrest warrant was subsequently issued for disturbing the peace.
Officer James Gregory, of the Oakland County Sheriff's Department, issued a police report involving defendant on December 2, 2002.
When defendant was spotted at the Oakland County courthouse, defendant was advised of the warrant and placed in custody. Defendant was asked to step onto an elevator and he refused to comply.
Defendant [*18] was unresponsive to the officers' commands to exit the elevator, and when an officer touched defendant's arm to escort him out, defendant fell to the floor screaming that the officers were abusing him.Defendant testified that when Neumann interviewed him, he refused to state his employer, instead saying he worked for George W. Bush.
Defendant claimed it was none of Neumann's business who he worked for. When asked why he did not comply with Neumann's requests if he wanted to have parenting time with his son, defendant stated:
Very simply because I will not be held hostage by people asking for things that are not part of their, it's not their business to have. And to have people be allowed to request anything or everything or I don't get to see my son, I mean he made that very clear to me. He's holding me hostage for the information so he could force me down the counseling path and other things. And I told him that was not what I was here for.
Defendant's intake session with Neumann was then terminated.Brock testified that he completed a psychological examination on defendant.
The results of the psychological examination, which also included a medical social questionnaire [*19] and a Minnesota Multiphasic Personality Inventory-2 ("MMPI-2") that were administered on August 15, 2002, diagnosed defendant with a paranoid personality disorder.
In reviewing factors leading to the diagnosis of paranoid personality, Brock explained the evidence supporting the diagnosis.
With regard to the incident at Kindercare, Brock stated that defendant inappropriately handled the situation and caused a lot of trauma for his own child and the other children at the daycare by involving the police.
Brock noted also that defendant hired and fired the same trial counsel more than once, keeping with his general suspicion of everyone.
Brock even found that defendant was suspicious of him while he was evaluating defendant. Brock stated that defendant's paranoid personality disorder could indirectly harm Robert because of defendant's inappropriate decisions, involving bad judgments based on his perception of being persecuted.
Brock also considered defendant telling Robert about the "boogie man", playing the "stupid game" and using foul language in front of his son as bad parenting skills, but stated that these things would not be reasons to eliminate parenting time from defendant. Brock [*20] indicated that defendant functions at a reasonably high level with regard to his professional performance.
Defendant's reliance on his reasonable degree of success in his employment is not a relevant factor in determining his mental health. As defendant indicated, despite his negative psychological attributes, all that a reasonable degree of success in his field of employment indicates is that he can function.
The statutory factors are used to ascertain "the best interest of the child." MCL 722.23.
It is not against the great weight of the evidence for the court to favor plaintiff over defendant, who has had many situations where his mental health has been called into question, and who has been diagnosed with a personality disorder, but who can function enough to maintain employment.
6. Factor (i)The ninth factor, MCL 722.23(i) is "the reasonable preference of the child, if the court considers the child to be of sufficient age to express preference." Defendant contends that the court erred in failing to interview the minor child to determine the reasonable preference of the child under factor (i).
The court stated that "the factor [*21] is not applicable in this case."At the conclusion of the evidentiary hearing in January 2003, the child was six years old.
The trial court has the discretion to determine whether a child is of sufficient age to express a reasonable preference regarding custody arrangements. Dempsey v Dempsey, 96 Mich. App. 276, 282-283; 292 N.W.2d 549, modified on other grounds 409 Mich. 495 (1980).
This Court has previously found clear error where a trial court failed to discover the preferences of children as young as six and nine years old. Bowers, supra at 55-56.
The court did consider Robert's reasonable preference and found it to be inapplicable in this case.
In Treutle v Treutle, 197 Mich. App. 690, 695-696; 495 N.W.2d 836 (1992), the Court found that the trial court had considered the reasonable preference of the child despite the fact that it failed to interview the child. The trial court in Treutle, supra, decided that there was no need to talk to the child because there was no opinion the minor could have expressed that would have affected the case. Id.
In this case, the court [*22] also considered the preference of the minor child and stated that, "the factor is not applicable in this case." The court found in favor of plaintiff with regard to factors (a), (b), (c), (d), (e), (g), (h), (j), (k), and (l). The court did not find in favor of defendant with regard to any of the factors, but found plaintiff and defendant equal in reference to factor (f).
The child's preference does not automatically outweigh the other evidence, but is only one element to evaluate in determining the best interests of the child DeGrow v DeGrow, 112 Mich. App. 260, 271; 315 N.W.2d 915 (1982).
The trial court, therefore, did not err in failing to interview Robert where it considered Robert's reasonable preference, and found it to be inapplicable.7.
Factor (k)The eleventh factor, MCL 722.23(k), looks at "domestic violence, regardless of whether the violence was directed against or witnessed by the child." Defendant argues that, under factor (k), the court should not have favored plaintiff because there was no evidence of domestic violence.
The court specifically stated that, "aside from the incidents prompting Plaintiff to petition [*23] for and the Court to issue a PPO against Defendant, domestic violence has not been an issue in this proceeding.
Plaintiff is slightly favored on this factor."On April 13, 2001, plaintiff filed a petition requesting an ex parte personal protection order (PPO) against defendant. Plaintiff stated in the petition that defendant had been stalking her, had come to her house without permission, and had been making threatening phone calls to her home and employment.When issuing a PPO under MCL 600.2950(1), the court may restrain "a former spouse . . . from doing 1 or more of the following":
(a Entering onto premises.
(b Assaulting, attacking, beating, molesting, or wounding a named individual.
(c Threatening to kill or physically injure a named individual.
(d Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
(e Purchasing or possessing a firearm.
(f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises that are solely owned or leased by the [*24] individual to be restrained or enjoined.
(g Interfering with petitioner at petitioner's place of employment or education or engaging in conduct that impairs petitioner's employment or educational relationship or environment.
(h Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner's minor child or about petitioner's employment address.(
i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.Further, the court must have cause to issue a PPO:
The court shall issue a personal protection order under this section if the court determines that there is reasonable cause to believe that the individual to be restrained or enjoined may commit 1 or more of the acts listed in subsection (1). [MCL 600.9250(4).] [*25]
The court previously determined that reasonable cause existed to believe that plaintiff might require a PPO against defendant. Therefore, it is not against the great weight of the evidence for the court to "slightly" favor plaintiff with regard to this factor. C.
ConclusionIn viewing the "sum total" of the factors under MCL 722.23, the court did not abuse its discretion in determining that granting sole legal and sole physical custody of Robert to plaintiff was in the best interest of the child. Hillard, supra at 321. Nine of the eleven factors under MCL 722.23 were decided in favor of plaintiff, including (a), (b), (c), (d), (e), (g), (h), (j), and (k). The court found factor (f), the moral fitness of the parties involved, equal between the parties.
The court further expounded under factor (l), in which the court may incorporate discretionary factors it finds relevant, that defendant's behavior and lack of respect for plaintiff, counsel, the court, and other individuals was "very disturbing," noting specifically that the court had held defendant in criminal contempt, placing him in jail for two days. Defendant stated in his [*26] closing argument that the court had improperly held him in contempt of court. Specifically, defendant stated:
I'm not sure what the full reasons were, but [the court] accused me of calling [it] a lying sack of s---. I think maybe somebody has better terms than that. My comments were that [the court was] a lying sack of whatever.
The court also stated that it was "very concerned about Defendant's mental stability and his overall ability to parent at this time."
We conclude that the trial court's findings were not against the great weight of the evidence, and even if factor (i), the reasonable preference of the child, which was not examined, was found to favor defendant, the court did not abuse its discretion in determining that granting sole legal and sole physical custody of the minor to plaintiff was in the best interest of the child. Hillard, supra at 321.
III.Defendant next argues that the trial court erred in not considering the preference of the minor child. Questions of law are reviewed for clear legal error, and a trial court commits legal error when it incorrectly chooses, interprets, or applies the law. Phillips v Jordan, 241 Mich. App. 17, 20; [*27] 614 N.W.2d 183 (2000). As stated in, hereinbefore, Robert's reasonable preference was considered and determined inapplicable. Thus, there is no legal error requiring reversal.
Affirmed./s/ Mark J. Cavanagh/s/ Kathleen Jansen/s/ Peter D. O'Connell
Friday, May 28, 2010
Child Support and Child Custody in Oakland County by Divorce Lawyer
Here we discuss Oakland County Child Custody and child support as presented by Terry Bankert a Flint Divorce Lawyer. To talk to a divorce Lawyer about your family law issues call 810-235-1970
The material is drawn fromy Oakland Circuit Court ,LC No. 2007-736726-DC, OLGA GENNADYEVNA DEWALD, Plaintiff-Appellee, JEROME WESTFIELD DEWALD, Defendant-Appellant. State of Michigan Court of Appeals, UNPUBLISHED ,May 25, 2010 ,,v No. 294094 ,Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. ,PER CURIAM.
Note this opinion has been altered for media presentation see original article at [1].
FATHER the Defendant appeals as of right from the OAKLAND circuit court order granting his motion for relief from a default judgment of filiation, OAKLAND CHILD custody, OAKLAND CHILD parenting time, and OAKLAND child support.
We affirm. AND AGREE WITH THE OAKLAND COUNTY COURT
THE PARTIES WERE DIVORCED IN RUSSIA
In June 2006, the parties divorced in Russia.
MOTHER NEEDS ENFORCEABLE MICHIGAN ORDER
In July 2007, MOTHER plaintiff filed a complaint in Michigan seeking an order awarding her custody of the parties’ two minor children and child support.
FATHER ON PAROL THOUGHT TO HAVE RETURNED TO RUSSIA
According to the complaint, defendant “was on parole for larceny by conversion and is
suspected to have illegally moved back to Russia.”
MOTHER TRIED TO SERVE AT MICHIGAN ADDRESS
Plaintiff tried unsuccessfully serving the summons and complaint on defendant at an address in East Lansing.
COURT AUTHORIZES ALTERNATE SERVICE
In November 2007, the circuit court authorized alternate service by posting in the Oakland County courthouse and publication in the Oakland County Legal News.
THREE WEEK PROCESS
After posting and publication took place over the course of three weeks in December 2007, on January 24, 2008 plaintiff filed an application for a default of defendant, which the court clerk entered the same day.
02/29/2008 COURT ENTERS A DEFAULT JUDGEMENT
On February 29, 2008, the circuit court entered a default judgment of filiation, custody, parenting time and child support.
05/2009 COUNRT ENTER A BENCH WARRANT RE: UNPAID CHILD SUPPORT OVER $10,000
In early May 2009, the circuit court ordered that a bench warrant issue for defendant’s
arrest on the ground that he had failed to appear at a show cause hearing concerning his unpaid
child support, which exceeded $10,000.
05/2009 FATHER PRESENTS HIMSELF AND WARRANT LIFTED
Later in May 2009, the circuit court discharged the bench warrant after defendant had appeared “in friend of the court” on May 18, 2009.
FATHERS SAYS THERE SHOULD NOT HAVE BEEN AN ORDER HE WAS NOT NOTIFIED
In July 2009, defendant moved for relief from judgment under MCR 2.612, arguing that he never received notice of plaintiff’s complaint or the default judgment, …
FATHER SAYS MOM LIED SHE KNEW WHERE HE WAS, IN RUSSIA
and that plaintiff fraudulently misrepresented to the court that she did not know his address in Moscow. In an August 2009 addendum to the motion for relief from judgment, defendant insisted that the default judgment against him “[wa]s void for lack of personal jurisdiction.”
COURT AFTER FOUND MOTHER KNEW WHERE HE WAS
After a lengthy hearing, the circuit court on August 12, 2009 granted defendant relief from judgment pursuant to MCR 2.612(C)(1)(f), finding that plaintiff knew defendant’s address in Moscow but did not disclose it to the court or attempt to serve him there, despite ,
(1) having many contacts with defendant
between the filing of the Michigan custody action and the circuit court’s entry of the default
judgment, and
(2) serving defendant successfully at his Moscow address in relation to a lawsuit
initiated in Russia.
THE CIRCUIT COURT ORDER
The circuit court’s order read, “The relief from judgment is granted. Support
arrearage and custody and parenting time provision is set aside. There is no child support
arrearage. This order shall be presented to the U.S. Embassy for return and issuance of passport.
Retroactive support is reserved.”1
FATHERS SAYS COURT FOUND HIM THE WINNER AND DID NOT GIVE HIME THE PRIZE.
Defendant avers on appeal that the circuit court failed to recognize the nullity of its
default judgment, its lack of personal jurisdiction over him, its erroneous reservation of the
retroactive child support issue, and its error in not granting relief under MCR 2.612(C)(1)(d)
instead of subrule (f).
THE MICHIGAN COURT OF APPEALS IS REVIEWING TO DETERMINE IF THE OAKLAND COUNTY CIRCUIT COURT MADE A MISTAKE
We review for an abuse of discretion a trial court’s ruling on a motion for
relief from judgment. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial
court abuses its discretion only when it selects a decision that falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
We review de novo issues of statute and court rule application and
interpretation, constitutional issues, and whether a court possesses personal jurisdiction over a
litigant. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); In re Terry, 240 Mich
App 14, 20; 610 NW2d 563 (2000); In re Hawley, 238 Mich App 509, 511; 606 NW2d 50
(1999).
Under MCR 2.612(C), the following circumstances may warrant a grant of relief from a
judgment:
(1) On motion and on just terms, the court may relieve a party or the
legal representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the
judgment.
(2) The motion must be made within a reasonable time, and, for the
grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the
judgment, order, or proceeding was entered or taken. A motion under this subrule
does not affect the finality of a judgment or suspend its operation.
(3) This subrule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding; to
grant relief to a defendant not actually personally notified as provided in subrule
(B); or to set aside a judgment for fraud on the court.
THE COURT OF APPEALS SAID THE LOWER COURT CAN DESIGN THE RELIEF FROM JUDGEMENT, THE CASE DOES NOT JUST GO AWAY
We conclude that the circuit court did not abuse its discretion in granting defendant relief
from judgment pursuant to MCR 2.612(C)(1)(f), and that the court properly continued to
exercise personal jurisdiction over defendant.
THE COURT DID RECOGNIZE THE NULLITY AND ELIMATED ARREARAGES
Contrary to defendant’s argument, the circuit court did not refuse to recognize the nullity of the default judgment against him. “It is well settled that judgments that have been set aside are nullities.” Smith v MEEMIC Ins Co, 285 Mich App 529, 532; 776 NW2d 408 (2009).
As reflected in the language of the circuit court’s August
12, 2009 order, the court remained well aware that in granting defendant relief from the February 2008 default judgment it was rendering the default judgment a nullity;
THE COURT CONTINUED TO EXPLAIN
A. as we have noted, the court ordered that it was setting aside the default judgment’s “[s]upport arrearage and custody and parenting time provision[s],” and that
B.“[t]here is no child support arrearage.”
THE COURT THEN GAVE THE PARTIES A NEW START TO LITIGATE THE ISSUES
At the hearing, the circuit court additionally set the matter for trial and instructed the parties to begin discovery and negotiations concerning the issues of child support and custody.
THE OAKLAND COUNTY FAMILY COURT USED THE RIGHT RULES
Also contrary to defendant’s position on appeal, the circuit court properly invoked MCR
2.612(C)(1)(f) as the basis for granting him relief from the default judgment. Generally, to
justify a court’s grant of relief under subrule (f), three requirements must exist:
“(1) the reason for setting aside the judgment must not fall under subsections a through e,
(2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and
THE COURT DOES NOT HAVE TO COMMIT AN INJUSTICE TO SOLVE AN INJUSTICE
(3) extraordinary circumstances must exist that mandate setting aside the judgment in order to
achieve justice.” Heugel, 237 Mich App at 478-479. However, the Court in Heugel, id. at 481,
reaffirmed that “a trial court may properly grant relief from a judgment under MCR
2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under
subsections a through e are present, when additional factors exist that persuade the court that
injustice will result if the judgment is allowed to stand.”
THE OAKLAND CIRCUIT COURT PROPERLY CRAFTED A FAIR DECISION BASED UPON THEIR EXPIERENCE.
“The trial courts must be empowered to draw from their long experience, both with the particular case and from the bench, to determine whether any variables in the case warrant th[e] extraordinary relief” afforded in MCR 2.612(C)(1)(f). Id. at 480, quoting Kaleal v Kaleal, 73 Mich App 181, 189; 250 NW2d 799
(1977).
Subsection (f) invests “the court with a grand reservoir of equitable power to do justice
in a particular case and vests power in courts adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice.” Heugel, 237 Mich App at 481
(internal quotation omitted).
BUT FATHER SAID HE NEVER GOT THE PAPERS , HIS PAROL AGENT TOLD HIM
Defendant testified that he never received service of any proceedings in plaintiff’s
Michigan custody action, and asserted in an affidavit that he had no knowledge of the case until
his parole officer in Michigan apprised him of it.
MOTHER SAYS SHE TOLD HIM IN 12/2008
Plaintiff estimated that she first mentioned the Michigan custody case to defendant in December 2008.
THE PARTIES AHD LIVED IN TWO LOCATIONS IN RUSSIA
The parties’ testimony agreed that over the course of their marriage, they lived at two primary locations in Moscow.
MOTHER SAID HE GOT THE PAPERS AT ONE OF THE ADDRESSES
Defendant recounted that he had lived at one of these locations as his permanent address between August
2006 and September 2008 and from May 2009 to the present; plaintiff confirmed that in October
2007 she had commenced litigation against defendant in Russia and that her Russian attorney
achieved service of the complaint on defendant at one of the two Moscow addresses they had
shared. Plaintiff recalled that she had forwarded to her counsel in the Michigan custody matter
the two addresses likely occupied by defendant in Moscow.
THE PARTIES HAD COMMUNICATION BUT MOTHER NEVER BROUGHT UP WHAT SHE WAS DOING IN MICHIGAN.
The parties did not dispute that over the course of repeated contacts, by email and otherwise, between 2006 and May 2008, plaintiff never mentioned to defendant the Michigan custody action or the default judgment.
IT WOULD HAVE BEEN UNJUST TO LET THE DEFAULT STAND
Given the ample evidence in this case supporting the circuit court’s findings that plaintiff had neglected to
properly serve defendant, despite possessing knowledge of his likely whereabouts that she did
not share with the court, an injustice would result if the court permitted the default judgment to
stand. Consequently, the circuit court acted within its discretion in granting defendant relief
under MCR 2.612(C)(1)(f).
HERE IS THE POINT FATHER DID NOT GET THE ORIGIONAL PAPER WORK SO THE ORDER DERIVED FROM THAT MUST FALL. BUT BY APPEARING TO PROTEST THE JUDGMENT HE IN FACT HAS FALLEN UNDER THE JURISDICTION OF THE COURT THAT CAN NOW MOVE FORWARD.
We reject defendant’s contention that the circuit court lacked personal jurisdiction over
him because he never received service of process. Our review of the record reveals that the
circuit court possessed personal jurisdiction on the basis of defendant’s general appearances in
the court.
FATHER ENTERD A GENERAL APPEARENCE
A party who enters a general appearance and contests a cause of action on
the merits submits to the court’s jurisdiction and waives service of process
objections. Generally, any action on the part of a defendant that recognizes the
pending proceedings, with the exception of objecting to the court’s jurisdiction,
will constitute a general appearance.
FATHER CREATED AN APPEARANCE ON THE FILE
Only two requirements must be met to render an act adequate to support the inference that there is an appearance:
(1) knowledge of the pending proceedings and (2) an intent to appear.
FATHER THEN SUBMITTED TO THE COURTS JURISDICTION OR CATCH -22
A party that submits to the court’s jurisdiction may not be dismissed for not having received
service of process. MCR 2.102(E)(2). [Penny v ABA Pharmaceutical Co (On
Remand), 203 Mich App 178, 181-182; 511 NW2d 896 (1993), overruled in part
on other grounds in Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 293; 731
NW2d 29 (2007).]
FATHERS PROCESS
In this case, before defendant sought relief from the default judgment and contested
plaintiff’s failure to serve him,
(1) he appeared at the friend of the court on May 18, 2009,
(2) he filed a motion to reduce the amount of child support the circuit court had ordered him to pay in
the default judgment,
(3) he requested a waiver of motion filing fees,
(4) he and plaintiff moved to opt out of friend of the court services,
(5) he negotiated a proposed stipulated order with plaintiff regarding child support, and
(6) he appeared via telephone at a July 8, 2009 hearing and expressed his desire to stipulate to a proposed order on the record, although the circuit court refused to allow the parties to opt out of friend of the court services. These actions establish that defendant had knowledge of the custody proceedings, intended to appear, and in fact made general appearances, thus submitting to the circuit court’s jurisdiction. Penny, 203 Mich App at 181-182. Moreover, at the hearing on the motion for relief from the default judgment, defense
counsel repeatedly conceded that the circuit court had personal jurisdiction over defendant and
that he wanted to continue litigating the issues of parenting time, child support, and custody.
ONCE YOU ALLOW JURISDICTION TO ATTACH YOU CANNOT OBJECT TO IT.
Defense counsel’s affirmations of the circuit court’s personal jurisdiction constitute a waiver to
any present objections by defendant, which extinguishes any personal jurisdiction-related error.
Lease Acceptance Corp v Adams, 272 Mich App 209, 229; 724 NW2d 724 (2006) (“Challenges
to personal jurisdiction may be waived by either express or implied consent.”) (internal quotation
omitted); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d
805 (2003) (noting that “[a] party may not take a position in the trial court and subsequently seek
redress in an appellate court that is based on a position contrary to that taken in the trial court”)
(internal quotation omitted).
WHAT THE COURT DIOD WAS TO SET ASIDE A JUDGEMENT REACHED BY FRAUD
Although defendant submits that the circuit court erred in relying on Penny, 203 Mich
App 178, defendant appears to confuse the circuit court’s holdings. The court set aside the
default judgment against defendant on the basis of its conclusion that as a result of fraud by
plaintiff, defendant did not receive proper service of the complaint or notice of the default and
default judgment against him.
ONCE THE PRIOR ORDER SETR ASDIE THE COURT HAS CONTINUING JURISDICTION
The circuit court did not find that, because defendant had
appeared after entry of the default judgment, he made an appearance with respect to that default
judgment. Instead, the circuit court merely and correctly determined that it had continuing
subject-matter jurisdiction over the custody issue, MCL 722.26; Harvey v Harvey, 470 Mich
186, 192; 680 NW2d 835 (2004), and personal jurisdiction over defendant after he made general
appearances in the circuit court.
FATHER SAYS THE COURT VIOLATED HIS DUE PROCESS
Defendant also claims that the circuit court violated his due process rights..[FOOTE NOTE 2]
The failure of service of the complaint or default and default judgment on defendant deprived him of
procedural due process because the failure of service prevented him from having an opportunity
to be heard concerning the child custody, support, and parenting time matters. Krueger v
Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981).
LACK OF DUE PROCESS SET ASDIE THE JUDGEMENT BUT THE CASE CONTINUES
Although the initial lack of service deprived defendant of due process, the circuit court ultimately set aside the default judgment and directed that the parties litigate the issues anew. And, as noted, defendant made general appearances and submitted to the circuit court’s personal jurisdiction over him. Penny, 203 Mich
App at 181-182; see also In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985) (“A party
who enters a general appearance and contests a cause of action on the merits submits to the
jurisdiction of the court and waives service of process objections.”).
The only case defendant cites in support of his due process argument, Armstrong v
Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), does not apply to the instant
circumstances. In Armstrong, id. at 547-548, a court terminated the petitioner’s parental rights to
his daughter without notice in the course of an adoption proceeding.
The United States Supreme Court held that the lack of notice combined with the resultant burden of proof imposed on the petitioner when he eventually sought relief combined to violate his constitutional rights:
Had the petitioner been given the timely notice which the Constitution
requires, the . . . moving parties . . . would have had the burden of proving their
2 Defendant neglected to set forth this issue in his appellate statement of questions presented,
rendering it technically not properly before the Court. MCR 7.212(C)(5); English v Blue Cross
Blue Shield of Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004).
case as against whatever defenses the petitioner might have interposed. It would
have been incumbent upon them to show not only that [the adoptive father] met
all the requisites of an adoptive parent under Texas law, but also to prove why the
petitioner’s consent to the adoption was not required. Had neither side offered
any evidence, those who initiated the adoption proceedings could not have
prevailed.
Instead, the petitioner was faced on his first appearance in the courtroom
with the task of overcoming an adverse decree entered by one judge, based upon a
finding of nonsupport made by another judge. As the record shows, there was
placed upon the petitioner the burden of affirmatively showing that he had
contributed to the support of his daughter to the limit of his financial ability over
the period involved. The burdens thus placed upon the petitioner were real, not
purely theoretical. For it is plain that where the burden of proof lies may be
decisive of the outcome. Yet these burdens would not have been imposed upon
him had he been given timely notice in accord with the Constitution. [Id. at 551-
552 (internal quotation omitted).]
HERE FATHER HAD THE SLATE WIPED CLEAN
Here by contrast, defendant has already obtained relief in the form of wiping the slate clean in
these custody proceedings through the circuit court’s grant of his motion for relief from the
default judgment. Because defendant has the opportunity to litigate the custody issues anew, his
due process rights remain intact.
THE OAKLAND COURT WAS FAIR
With respect to defendant’s suggestions that the circuit court should not have granted
relief under MCR 2.612(C)(1)(f) “if an equally plausible alternative exists that will provide the
same result,” and that the circuit court harbored a bias against him, defendant has abandoned
these claims by neglecting to refer to binding authority in support of them. Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, regarding defendant’s judicial bias
claim, we have discerned nothing in the record tending to substantiate this assertion, and his bias
claim has become moot given that a new judge has been appointed to preside over his case.
Detroit v Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008).3
Affirmed.
MOTHER WON FATHER HAS TO PAY COSTS
Costs to plaintiff as the prevailing party on appeal. MCR 7.219(A).
Posted here by
Terry Bankert
http://attorneybankert.com
Of
http://dumpmyspouse.com
see
[1]
Original Opinion
http://www.icle.org/contentfiles/mlo/unpublished/20100525_294094.pdf
FOOT NOTE 1 In a subsequent motion for reconsideration, defendant maintained that the circuit court had
mistakenly granted relief under MCR 2.612(C)(1)(f), instead of subrule (d), because the court
never obtained personal jurisdiction over him. The circuit court denied the motion, discerning no
palpable error in its prior ruling.
FOOT NOTE 3 To the extent that defendant also urges this Court to peremptorily reverse the circuit court
pursuant to MCR 7.211(C)(4), we decline to consider this proposal because defendant did not
properly raise it in a motion before this Court, MCR 7.211(A)(2), (3), and he offers no authority
establishing the propriety of peremptory reversal
CAP HEADLINES ARE from Terry Bankert along with (trb), other extnal citations may be used.
The material is drawn fromy Oakland Circuit Court ,LC No. 2007-736726-DC, OLGA GENNADYEVNA DEWALD, Plaintiff-Appellee, JEROME WESTFIELD DEWALD, Defendant-Appellant. State of Michigan Court of Appeals, UNPUBLISHED ,May 25, 2010 ,,v No. 294094 ,Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. ,PER CURIAM.
Note this opinion has been altered for media presentation see original article at [1].
FATHER the Defendant appeals as of right from the OAKLAND circuit court order granting his motion for relief from a default judgment of filiation, OAKLAND CHILD custody, OAKLAND CHILD parenting time, and OAKLAND child support.
We affirm. AND AGREE WITH THE OAKLAND COUNTY COURT
THE PARTIES WERE DIVORCED IN RUSSIA
In June 2006, the parties divorced in Russia.
MOTHER NEEDS ENFORCEABLE MICHIGAN ORDER
In July 2007, MOTHER plaintiff filed a complaint in Michigan seeking an order awarding her custody of the parties’ two minor children and child support.
FATHER ON PAROL THOUGHT TO HAVE RETURNED TO RUSSIA
According to the complaint, defendant “was on parole for larceny by conversion and is
suspected to have illegally moved back to Russia.”
MOTHER TRIED TO SERVE AT MICHIGAN ADDRESS
Plaintiff tried unsuccessfully serving the summons and complaint on defendant at an address in East Lansing.
COURT AUTHORIZES ALTERNATE SERVICE
In November 2007, the circuit court authorized alternate service by posting in the Oakland County courthouse and publication in the Oakland County Legal News.
THREE WEEK PROCESS
After posting and publication took place over the course of three weeks in December 2007, on January 24, 2008 plaintiff filed an application for a default of defendant, which the court clerk entered the same day.
02/29/2008 COURT ENTERS A DEFAULT JUDGEMENT
On February 29, 2008, the circuit court entered a default judgment of filiation, custody, parenting time and child support.
05/2009 COUNRT ENTER A BENCH WARRANT RE: UNPAID CHILD SUPPORT OVER $10,000
In early May 2009, the circuit court ordered that a bench warrant issue for defendant’s
arrest on the ground that he had failed to appear at a show cause hearing concerning his unpaid
child support, which exceeded $10,000.
05/2009 FATHER PRESENTS HIMSELF AND WARRANT LIFTED
Later in May 2009, the circuit court discharged the bench warrant after defendant had appeared “in friend of the court” on May 18, 2009.
FATHERS SAYS THERE SHOULD NOT HAVE BEEN AN ORDER HE WAS NOT NOTIFIED
In July 2009, defendant moved for relief from judgment under MCR 2.612, arguing that he never received notice of plaintiff’s complaint or the default judgment, …
FATHER SAYS MOM LIED SHE KNEW WHERE HE WAS, IN RUSSIA
and that plaintiff fraudulently misrepresented to the court that she did not know his address in Moscow. In an August 2009 addendum to the motion for relief from judgment, defendant insisted that the default judgment against him “[wa]s void for lack of personal jurisdiction.”
COURT AFTER FOUND MOTHER KNEW WHERE HE WAS
After a lengthy hearing, the circuit court on August 12, 2009 granted defendant relief from judgment pursuant to MCR 2.612(C)(1)(f), finding that plaintiff knew defendant’s address in Moscow but did not disclose it to the court or attempt to serve him there, despite ,
(1) having many contacts with defendant
between the filing of the Michigan custody action and the circuit court’s entry of the default
judgment, and
(2) serving defendant successfully at his Moscow address in relation to a lawsuit
initiated in Russia.
THE CIRCUIT COURT ORDER
The circuit court’s order read, “The relief from judgment is granted. Support
arrearage and custody and parenting time provision is set aside. There is no child support
arrearage. This order shall be presented to the U.S. Embassy for return and issuance of passport.
Retroactive support is reserved.”1
FATHERS SAYS COURT FOUND HIM THE WINNER AND DID NOT GIVE HIME THE PRIZE.
Defendant avers on appeal that the circuit court failed to recognize the nullity of its
default judgment, its lack of personal jurisdiction over him, its erroneous reservation of the
retroactive child support issue, and its error in not granting relief under MCR 2.612(C)(1)(d)
instead of subrule (f).
THE MICHIGAN COURT OF APPEALS IS REVIEWING TO DETERMINE IF THE OAKLAND COUNTY CIRCUIT COURT MADE A MISTAKE
We review for an abuse of discretion a trial court’s ruling on a motion for
relief from judgment. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial
court abuses its discretion only when it selects a decision that falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
We review de novo issues of statute and court rule application and
interpretation, constitutional issues, and whether a court possesses personal jurisdiction over a
litigant. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); In re Terry, 240 Mich
App 14, 20; 610 NW2d 563 (2000); In re Hawley, 238 Mich App 509, 511; 606 NW2d 50
(1999).
Under MCR 2.612(C), the following circumstances may warrant a grant of relief from a
judgment:
(1) On motion and on just terms, the court may relieve a party or the
legal representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the
judgment.
(2) The motion must be made within a reasonable time, and, for the
grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the
judgment, order, or proceeding was entered or taken. A motion under this subrule
does not affect the finality of a judgment or suspend its operation.
(3) This subrule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding; to
grant relief to a defendant not actually personally notified as provided in subrule
(B); or to set aside a judgment for fraud on the court.
THE COURT OF APPEALS SAID THE LOWER COURT CAN DESIGN THE RELIEF FROM JUDGEMENT, THE CASE DOES NOT JUST GO AWAY
We conclude that the circuit court did not abuse its discretion in granting defendant relief
from judgment pursuant to MCR 2.612(C)(1)(f), and that the court properly continued to
exercise personal jurisdiction over defendant.
THE COURT DID RECOGNIZE THE NULLITY AND ELIMATED ARREARAGES
Contrary to defendant’s argument, the circuit court did not refuse to recognize the nullity of the default judgment against him. “It is well settled that judgments that have been set aside are nullities.” Smith v MEEMIC Ins Co, 285 Mich App 529, 532; 776 NW2d 408 (2009).
As reflected in the language of the circuit court’s August
12, 2009 order, the court remained well aware that in granting defendant relief from the February 2008 default judgment it was rendering the default judgment a nullity;
THE COURT CONTINUED TO EXPLAIN
A. as we have noted, the court ordered that it was setting aside the default judgment’s “[s]upport arrearage and custody and parenting time provision[s],” and that
B.“[t]here is no child support arrearage.”
THE COURT THEN GAVE THE PARTIES A NEW START TO LITIGATE THE ISSUES
At the hearing, the circuit court additionally set the matter for trial and instructed the parties to begin discovery and negotiations concerning the issues of child support and custody.
THE OAKLAND COUNTY FAMILY COURT USED THE RIGHT RULES
Also contrary to defendant’s position on appeal, the circuit court properly invoked MCR
2.612(C)(1)(f) as the basis for granting him relief from the default judgment. Generally, to
justify a court’s grant of relief under subrule (f), three requirements must exist:
“(1) the reason for setting aside the judgment must not fall under subsections a through e,
(2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and
THE COURT DOES NOT HAVE TO COMMIT AN INJUSTICE TO SOLVE AN INJUSTICE
(3) extraordinary circumstances must exist that mandate setting aside the judgment in order to
achieve justice.” Heugel, 237 Mich App at 478-479. However, the Court in Heugel, id. at 481,
reaffirmed that “a trial court may properly grant relief from a judgment under MCR
2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under
subsections a through e are present, when additional factors exist that persuade the court that
injustice will result if the judgment is allowed to stand.”
THE OAKLAND CIRCUIT COURT PROPERLY CRAFTED A FAIR DECISION BASED UPON THEIR EXPIERENCE.
“The trial courts must be empowered to draw from their long experience, both with the particular case and from the bench, to determine whether any variables in the case warrant th[e] extraordinary relief” afforded in MCR 2.612(C)(1)(f). Id. at 480, quoting Kaleal v Kaleal, 73 Mich App 181, 189; 250 NW2d 799
(1977).
Subsection (f) invests “the court with a grand reservoir of equitable power to do justice
in a particular case and vests power in courts adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice.” Heugel, 237 Mich App at 481
(internal quotation omitted).
BUT FATHER SAID HE NEVER GOT THE PAPERS , HIS PAROL AGENT TOLD HIM
Defendant testified that he never received service of any proceedings in plaintiff’s
Michigan custody action, and asserted in an affidavit that he had no knowledge of the case until
his parole officer in Michigan apprised him of it.
MOTHER SAYS SHE TOLD HIM IN 12/2008
Plaintiff estimated that she first mentioned the Michigan custody case to defendant in December 2008.
THE PARTIES AHD LIVED IN TWO LOCATIONS IN RUSSIA
The parties’ testimony agreed that over the course of their marriage, they lived at two primary locations in Moscow.
MOTHER SAID HE GOT THE PAPERS AT ONE OF THE ADDRESSES
Defendant recounted that he had lived at one of these locations as his permanent address between August
2006 and September 2008 and from May 2009 to the present; plaintiff confirmed that in October
2007 she had commenced litigation against defendant in Russia and that her Russian attorney
achieved service of the complaint on defendant at one of the two Moscow addresses they had
shared. Plaintiff recalled that she had forwarded to her counsel in the Michigan custody matter
the two addresses likely occupied by defendant in Moscow.
THE PARTIES HAD COMMUNICATION BUT MOTHER NEVER BROUGHT UP WHAT SHE WAS DOING IN MICHIGAN.
The parties did not dispute that over the course of repeated contacts, by email and otherwise, between 2006 and May 2008, plaintiff never mentioned to defendant the Michigan custody action or the default judgment.
IT WOULD HAVE BEEN UNJUST TO LET THE DEFAULT STAND
Given the ample evidence in this case supporting the circuit court’s findings that plaintiff had neglected to
properly serve defendant, despite possessing knowledge of his likely whereabouts that she did
not share with the court, an injustice would result if the court permitted the default judgment to
stand. Consequently, the circuit court acted within its discretion in granting defendant relief
under MCR 2.612(C)(1)(f).
HERE IS THE POINT FATHER DID NOT GET THE ORIGIONAL PAPER WORK SO THE ORDER DERIVED FROM THAT MUST FALL. BUT BY APPEARING TO PROTEST THE JUDGMENT HE IN FACT HAS FALLEN UNDER THE JURISDICTION OF THE COURT THAT CAN NOW MOVE FORWARD.
We reject defendant’s contention that the circuit court lacked personal jurisdiction over
him because he never received service of process. Our review of the record reveals that the
circuit court possessed personal jurisdiction on the basis of defendant’s general appearances in
the court.
FATHER ENTERD A GENERAL APPEARENCE
A party who enters a general appearance and contests a cause of action on
the merits submits to the court’s jurisdiction and waives service of process
objections. Generally, any action on the part of a defendant that recognizes the
pending proceedings, with the exception of objecting to the court’s jurisdiction,
will constitute a general appearance.
FATHER CREATED AN APPEARANCE ON THE FILE
Only two requirements must be met to render an act adequate to support the inference that there is an appearance:
(1) knowledge of the pending proceedings and (2) an intent to appear.
FATHER THEN SUBMITTED TO THE COURTS JURISDICTION OR CATCH -22
A party that submits to the court’s jurisdiction may not be dismissed for not having received
service of process. MCR 2.102(E)(2). [Penny v ABA Pharmaceutical Co (On
Remand), 203 Mich App 178, 181-182; 511 NW2d 896 (1993), overruled in part
on other grounds in Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 293; 731
NW2d 29 (2007).]
FATHERS PROCESS
In this case, before defendant sought relief from the default judgment and contested
plaintiff’s failure to serve him,
(1) he appeared at the friend of the court on May 18, 2009,
(2) he filed a motion to reduce the amount of child support the circuit court had ordered him to pay in
the default judgment,
(3) he requested a waiver of motion filing fees,
(4) he and plaintiff moved to opt out of friend of the court services,
(5) he negotiated a proposed stipulated order with plaintiff regarding child support, and
(6) he appeared via telephone at a July 8, 2009 hearing and expressed his desire to stipulate to a proposed order on the record, although the circuit court refused to allow the parties to opt out of friend of the court services. These actions establish that defendant had knowledge of the custody proceedings, intended to appear, and in fact made general appearances, thus submitting to the circuit court’s jurisdiction. Penny, 203 Mich App at 181-182. Moreover, at the hearing on the motion for relief from the default judgment, defense
counsel repeatedly conceded that the circuit court had personal jurisdiction over defendant and
that he wanted to continue litigating the issues of parenting time, child support, and custody.
ONCE YOU ALLOW JURISDICTION TO ATTACH YOU CANNOT OBJECT TO IT.
Defense counsel’s affirmations of the circuit court’s personal jurisdiction constitute a waiver to
any present objections by defendant, which extinguishes any personal jurisdiction-related error.
Lease Acceptance Corp v Adams, 272 Mich App 209, 229; 724 NW2d 724 (2006) (“Challenges
to personal jurisdiction may be waived by either express or implied consent.”) (internal quotation
omitted); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d
805 (2003) (noting that “[a] party may not take a position in the trial court and subsequently seek
redress in an appellate court that is based on a position contrary to that taken in the trial court”)
(internal quotation omitted).
WHAT THE COURT DIOD WAS TO SET ASIDE A JUDGEMENT REACHED BY FRAUD
Although defendant submits that the circuit court erred in relying on Penny, 203 Mich
App 178, defendant appears to confuse the circuit court’s holdings. The court set aside the
default judgment against defendant on the basis of its conclusion that as a result of fraud by
plaintiff, defendant did not receive proper service of the complaint or notice of the default and
default judgment against him.
ONCE THE PRIOR ORDER SETR ASDIE THE COURT HAS CONTINUING JURISDICTION
The circuit court did not find that, because defendant had
appeared after entry of the default judgment, he made an appearance with respect to that default
judgment. Instead, the circuit court merely and correctly determined that it had continuing
subject-matter jurisdiction over the custody issue, MCL 722.26; Harvey v Harvey, 470 Mich
186, 192; 680 NW2d 835 (2004), and personal jurisdiction over defendant after he made general
appearances in the circuit court.
FATHER SAYS THE COURT VIOLATED HIS DUE PROCESS
Defendant also claims that the circuit court violated his due process rights..[FOOTE NOTE 2]
The failure of service of the complaint or default and default judgment on defendant deprived him of
procedural due process because the failure of service prevented him from having an opportunity
to be heard concerning the child custody, support, and parenting time matters. Krueger v
Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981).
LACK OF DUE PROCESS SET ASDIE THE JUDGEMENT BUT THE CASE CONTINUES
Although the initial lack of service deprived defendant of due process, the circuit court ultimately set aside the default judgment and directed that the parties litigate the issues anew. And, as noted, defendant made general appearances and submitted to the circuit court’s personal jurisdiction over him. Penny, 203 Mich
App at 181-182; see also In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985) (“A party
who enters a general appearance and contests a cause of action on the merits submits to the
jurisdiction of the court and waives service of process objections.”).
The only case defendant cites in support of his due process argument, Armstrong v
Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), does not apply to the instant
circumstances. In Armstrong, id. at 547-548, a court terminated the petitioner’s parental rights to
his daughter without notice in the course of an adoption proceeding.
The United States Supreme Court held that the lack of notice combined with the resultant burden of proof imposed on the petitioner when he eventually sought relief combined to violate his constitutional rights:
Had the petitioner been given the timely notice which the Constitution
requires, the . . . moving parties . . . would have had the burden of proving their
2 Defendant neglected to set forth this issue in his appellate statement of questions presented,
rendering it technically not properly before the Court. MCR 7.212(C)(5); English v Blue Cross
Blue Shield of Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004).
case as against whatever defenses the petitioner might have interposed. It would
have been incumbent upon them to show not only that [the adoptive father] met
all the requisites of an adoptive parent under Texas law, but also to prove why the
petitioner’s consent to the adoption was not required. Had neither side offered
any evidence, those who initiated the adoption proceedings could not have
prevailed.
Instead, the petitioner was faced on his first appearance in the courtroom
with the task of overcoming an adverse decree entered by one judge, based upon a
finding of nonsupport made by another judge. As the record shows, there was
placed upon the petitioner the burden of affirmatively showing that he had
contributed to the support of his daughter to the limit of his financial ability over
the period involved. The burdens thus placed upon the petitioner were real, not
purely theoretical. For it is plain that where the burden of proof lies may be
decisive of the outcome. Yet these burdens would not have been imposed upon
him had he been given timely notice in accord with the Constitution. [Id. at 551-
552 (internal quotation omitted).]
HERE FATHER HAD THE SLATE WIPED CLEAN
Here by contrast, defendant has already obtained relief in the form of wiping the slate clean in
these custody proceedings through the circuit court’s grant of his motion for relief from the
default judgment. Because defendant has the opportunity to litigate the custody issues anew, his
due process rights remain intact.
THE OAKLAND COURT WAS FAIR
With respect to defendant’s suggestions that the circuit court should not have granted
relief under MCR 2.612(C)(1)(f) “if an equally plausible alternative exists that will provide the
same result,” and that the circuit court harbored a bias against him, defendant has abandoned
these claims by neglecting to refer to binding authority in support of them. Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, regarding defendant’s judicial bias
claim, we have discerned nothing in the record tending to substantiate this assertion, and his bias
claim has become moot given that a new judge has been appointed to preside over his case.
Detroit v Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008).3
Affirmed.
MOTHER WON FATHER HAS TO PAY COSTS
Costs to plaintiff as the prevailing party on appeal. MCR 7.219(A).
Posted here by
Terry Bankert
http://attorneybankert.com
Of
http://dumpmyspouse.com
see
[1]
Original Opinion
http://www.icle.org/contentfiles/mlo/unpublished/20100525_294094.pdf
FOOT NOTE 1 In a subsequent motion for reconsideration, defendant maintained that the circuit court had
mistakenly granted relief under MCR 2.612(C)(1)(f), instead of subrule (d), because the court
never obtained personal jurisdiction over him. The circuit court denied the motion, discerning no
palpable error in its prior ruling.
FOOT NOTE 3 To the extent that defendant also urges this Court to peremptorily reverse the circuit court
pursuant to MCR 7.211(C)(4), we decline to consider this proposal because defendant did not
properly raise it in a motion before this Court, MCR 7.211(A)(2), (3), and he offers no authority
establishing the propriety of peremptory reversal
CAP HEADLINES ARE from Terry Bankert along with (trb), other extnal citations may be used.
Thursday, March 11, 2010
Non custodial parents and the 100 Mile rule
Oakland County parents and the 100 Mile rule!
Thoughts from a Flint Divorce Lawyer.
Issues Discussed here by Terry Bankert a Flint Divorce Attorney:
Child custody;
Motion for a change of domicile; Brown v. Loveman; Mogle v. Scriver; Shulick v. Richards;
MCL 722.31;
Factors a, b, and c; Spires v. BergmanFrom Court: Michigan Court of Appeals (Unpublished)The Case Name: Woodward v. WoodwardReviewed first at e-Journal Number: 45255Michigan Court of Appeals Judge(s): Per Curiam - Servitto, Bandstra, and Fort HoodWhen did the lower court release this? March 4, 2010, No. 294441,Where did this case begin? Lapeer Circuit Court,LC No. 08-040752-DM
DID YOU KNOW
In My Flint Divorce and Statewide mediation practice often one parent wants to move.
Did you know that when parents share joint legal custody of their children and one parent proposes torelocate more than 100 miles away, a motion for change of domicile is governed by MCL722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus vRittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007).
That statute provides, in pertinentpart: Before permitting a legal residence change. . . , the court shall considereach of the following factors, with the child as the primary focus in the court’sdeliberations:
(a) Whether the legal residence change has the capacity to improve thequality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his orher time under, a court order governing parenting time with the child, and whetherthe parent’s plan to change the child’s legal residence is inspired by that parent’sdesire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits thelegal residence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.
(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.
(e) Domestic violence, regardless of whether the violence was directedagainst or witnessed by the child. [MCL 722.31(4).]
IN THIS CASE
The Lapeer County Family court decision to grant the plaintiff-mother's motion for change of domicile was not an abuse of discretion. dad thought it was a bad decision. He was wrong.
IMPROVING THE CHILDS LIFE
These parents shared joint custody of their minor children. Father claimed the trial court erred by finding factor (a) favored permitting the relocation because mother failed to establish a move to Massachusetts would improve the quality of the children's lives.
MABEY COUNTS IN FAMILY COURT
Mother was not required to prove the move would improve the quality of their lives, only it had the capacity to do so.
CHILDS QUALITY OF LIFE STAYS THE SAME, EXCEPT FOR NOT SEEING DAD AS MUCH!The Lapeer Family Court found, the evidence showed the children would have basically the same lifestyle regardless of where they lived, apart from the diminution in time spent with defendant.
MOTHER WAS MOVING TO A GOOD HOME
There was a suitable home in a suitable neighborhood in both communities, there were good schools in both communities, the children had friends in both communities, and they had a chance to see nearby relatives in both communities.
MOM THE PROVIDER LOST HER JOB, MOVED TO FIND ANOTHER
However, mother , who had been the children's sole source of financial support because father was unemployed, had lost her job and been unable to find new employment in Michigan, but she had some work available to her immediately in Massachusetts.
IF MOM STAYS IN MICHIGAN CHILD FINANCIALLY HARMED
The trial court tacitly recognized if mother were to remain in Michigan without work, the children's quality of life could be detrimentally affected.
MOM WINS FACTOR A
Thus, the trial court's conclusion with respect to factor (a) was not against the great weight of the evidence.
DAD DID NOT USE ALL THE PARENTING TIME THE COURT HAD ORDERED
As to factor (b), the Lapeer court found father had not taken full advantage of his parenting time.
DAD WAS THE BABY SITTER
Although the custody and support order entered in 2005 was not admitted into evidence, he admitted it gave him parenting time for half the summer and he had not exercised the time, apparently because of all the extra time he spent babysitting the children.
DAD STEPPED TO THE ;PLATE AND TOOK CARE OF THE CHILDREN WHILE MOM AT WORK! COURT SAYS THAT’S NO ENOUGH!
While father was seeing the children on a regular basis almost daily, the time spent with them for a few hours while mother was at work and on alternate weekends was not the same as being a full-time parent for five or six weeks at a time.
MOM WINS FACTOR B
Thus, the Lapeer court's conclusion with respect to this aspect of factor (b) was not against the great weight of the evidence.
COURT SAYS EVEN WITH THE 1000 MILE MOVE DAD CAN STILL BNE THE SAME KIND OF DAD TO THESE KIDS.
As to (c), the Lapeer court found it would be possible to work out a new visitation schedule adequate to preserve defendant's relationship with the children. This finding was supported by mothers testimony father had maintained regular telephone contact with the children during an extended vacation to Massachusetts, and by her testimony regarding a proposed visitation schedule.MOM WINS FACTOR C.Thus, the trial court's conclusion with respect to this aspect of factor (c) was not against the great weight of the evidence. Defendant did not challenge the trial court's findings regarding factors (d) and (e).
DO YOU BELIEVE THAT WAS THE RIGHT CONCLUSION?SOMETIMES THE LAW IS USED TO REACH THE CONCLUSION THE COURT WANTS.WHAT WAS THIS LAW?
1. Local courts like Lapeer have great discretion. For a higher court to reveres a lower court it must find abuse. Good luck with that one. An abuse of discretion in matters involving child custody exists where the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. Shulick v Richards, 273 Mich App 320, 324- 325; 729 NW2d 533 (2006).
2.When mom and dad share joint legal custody of their children and one parent proposes torelocate more than 100 miles away, a motion for change of domicile is governed by MCL722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus vRittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007).
3.That statute MCL 722.31 says:Before permitting a legal residence change. . . , the court shall considereach of the following factors, with the child as the primary focus in the court’sdeliberations:(a) Whether the legal residence change has the capacity to improve thequality of life for both the child and the relocating parent.(b) The degree to which each parent has complied with, and utilized his orher time under, a court order governing parenting time with the child, and whetherthe parent’s plan to change the child’s legal residence is inspired by that parent’sdesire to defeat or frustrate the parenting time schedule.(c) The degree to which the court is satisfied that, if the court permits thelegal residence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.(e) Domestic violence, regardless of whether the violence was directedagainst or witnessed by the child. [MCL 722.31(4).]
4. Mom had the burden of bringing the evidence. The party , mom here, seeking a change of domicile has the burden of proving by a preponderance of theevidence that the change is warranted. Brown, 260 Mich App at 600.5. The high court did not say it was the right decision only that the decision allowing mom tochange domicile was not an abuse of discretion.
Posted here by
Terry Bankert
http://www.attorneybankert.com/
Find your county Family Court House State Wide.
http://www.dumpmyspouse.com/
Thoughts from a Flint Divorce Lawyer.
Issues Discussed here by Terry Bankert a Flint Divorce Attorney:
Child custody;
Motion for a change of domicile; Brown v. Loveman; Mogle v. Scriver; Shulick v. Richards;
MCL 722.31;
Factors a, b, and c; Spires v. BergmanFrom Court: Michigan Court of Appeals (Unpublished)The Case Name: Woodward v. WoodwardReviewed first at e-Journal Number: 45255Michigan Court of Appeals Judge(s): Per Curiam - Servitto, Bandstra, and Fort HoodWhen did the lower court release this? March 4, 2010, No. 294441,Where did this case begin? Lapeer Circuit Court,LC No. 08-040752-DM
DID YOU KNOW
In My Flint Divorce and Statewide mediation practice often one parent wants to move.
Did you know that when parents share joint legal custody of their children and one parent proposes torelocate more than 100 miles away, a motion for change of domicile is governed by MCL722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus vRittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007).
That statute provides, in pertinentpart: Before permitting a legal residence change. . . , the court shall considereach of the following factors, with the child as the primary focus in the court’sdeliberations:
(a) Whether the legal residence change has the capacity to improve thequality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his orher time under, a court order governing parenting time with the child, and whetherthe parent’s plan to change the child’s legal residence is inspired by that parent’sdesire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits thelegal residence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.
(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.
(e) Domestic violence, regardless of whether the violence was directedagainst or witnessed by the child. [MCL 722.31(4).]
IN THIS CASE
The Lapeer County Family court decision to grant the plaintiff-mother's motion for change of domicile was not an abuse of discretion. dad thought it was a bad decision. He was wrong.
IMPROVING THE CHILDS LIFE
These parents shared joint custody of their minor children. Father claimed the trial court erred by finding factor (a) favored permitting the relocation because mother failed to establish a move to Massachusetts would improve the quality of the children's lives.
MABEY COUNTS IN FAMILY COURT
Mother was not required to prove the move would improve the quality of their lives, only it had the capacity to do so.
CHILDS QUALITY OF LIFE STAYS THE SAME, EXCEPT FOR NOT SEEING DAD AS MUCH!The Lapeer Family Court found, the evidence showed the children would have basically the same lifestyle regardless of where they lived, apart from the diminution in time spent with defendant.
MOTHER WAS MOVING TO A GOOD HOME
There was a suitable home in a suitable neighborhood in both communities, there were good schools in both communities, the children had friends in both communities, and they had a chance to see nearby relatives in both communities.
MOM THE PROVIDER LOST HER JOB, MOVED TO FIND ANOTHER
However, mother , who had been the children's sole source of financial support because father was unemployed, had lost her job and been unable to find new employment in Michigan, but she had some work available to her immediately in Massachusetts.
IF MOM STAYS IN MICHIGAN CHILD FINANCIALLY HARMED
The trial court tacitly recognized if mother were to remain in Michigan without work, the children's quality of life could be detrimentally affected.
MOM WINS FACTOR A
Thus, the trial court's conclusion with respect to factor (a) was not against the great weight of the evidence.
DAD DID NOT USE ALL THE PARENTING TIME THE COURT HAD ORDERED
As to factor (b), the Lapeer court found father had not taken full advantage of his parenting time.
DAD WAS THE BABY SITTER
Although the custody and support order entered in 2005 was not admitted into evidence, he admitted it gave him parenting time for half the summer and he had not exercised the time, apparently because of all the extra time he spent babysitting the children.
DAD STEPPED TO THE ;PLATE AND TOOK CARE OF THE CHILDREN WHILE MOM AT WORK! COURT SAYS THAT’S NO ENOUGH!
While father was seeing the children on a regular basis almost daily, the time spent with them for a few hours while mother was at work and on alternate weekends was not the same as being a full-time parent for five or six weeks at a time.
MOM WINS FACTOR B
Thus, the Lapeer court's conclusion with respect to this aspect of factor (b) was not against the great weight of the evidence.
COURT SAYS EVEN WITH THE 1000 MILE MOVE DAD CAN STILL BNE THE SAME KIND OF DAD TO THESE KIDS.
As to (c), the Lapeer court found it would be possible to work out a new visitation schedule adequate to preserve defendant's relationship with the children. This finding was supported by mothers testimony father had maintained regular telephone contact with the children during an extended vacation to Massachusetts, and by her testimony regarding a proposed visitation schedule.MOM WINS FACTOR C.Thus, the trial court's conclusion with respect to this aspect of factor (c) was not against the great weight of the evidence. Defendant did not challenge the trial court's findings regarding factors (d) and (e).
DO YOU BELIEVE THAT WAS THE RIGHT CONCLUSION?SOMETIMES THE LAW IS USED TO REACH THE CONCLUSION THE COURT WANTS.WHAT WAS THIS LAW?
1. Local courts like Lapeer have great discretion. For a higher court to reveres a lower court it must find abuse. Good luck with that one. An abuse of discretion in matters involving child custody exists where the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias. Shulick v Richards, 273 Mich App 320, 324- 325; 729 NW2d 533 (2006).
2.When mom and dad share joint legal custody of their children and one parent proposes torelocate more than 100 miles away, a motion for change of domicile is governed by MCL722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus vRittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007).
3.That statute MCL 722.31 says:Before permitting a legal residence change. . . , the court shall considereach of the following factors, with the child as the primary focus in the court’sdeliberations:(a) Whether the legal residence change has the capacity to improve thequality of life for both the child and the relocating parent.(b) The degree to which each parent has complied with, and utilized his orher time under, a court order governing parenting time with the child, and whetherthe parent’s plan to change the child’s legal residence is inspired by that parent’sdesire to defeat or frustrate the parenting time schedule.(c) The degree to which the court is satisfied that, if the court permits thelegal residence change, it is possible to order a modification of the parenting timeschedule and other arrangements governing the child’s schedule in a manner thatcan provide an adequate basis for preserving and fostering the parentalrelationship between the child and each parent; and whether each parent is likelyto comply with the modification.(d) The extent to which the parent opposing the legal residence change ismotivated by a desire to secure a financial advantage with respect to a supportobligation.(e) Domestic violence, regardless of whether the violence was directedagainst or witnessed by the child. [MCL 722.31(4).]
4. Mom had the burden of bringing the evidence. The party , mom here, seeking a change of domicile has the burden of proving by a preponderance of theevidence that the change is warranted. Brown, 260 Mich App at 600.5. The high court did not say it was the right decision only that the decision allowing mom tochange domicile was not an abuse of discretion.
Posted here by
Terry Bankert
http://www.attorneybankert.com/
Find your county Family Court House State Wide.
http://www.dumpmyspouse.com/
Sunday, September 28, 2008
Oakland County
Oakland
http://www.oakgov.com/index.html
1200 N Telegraph RdPontiac, MI 48341(248) 858-1000
Area: 873 smEst: 1819Pop: 1,194,156Pop/sm: 1,368.6Seat: Pontiac
http://www.oakgov.com/index.html
1200 N Telegraph RdPontiac, MI 48341(248) 858-1000
Area: 873 smEst: 1819Pop: 1,194,156Pop/sm: 1,368.6Seat: Pontiac
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