e-Journal #: 65584
Case: In re BGP
Court: Michigan Court of Appeals ( Published Opinion )
Judges: Saad, Meter, and Murray

Issues:

Payment of administrative & marketing fees related to the adoption process under the Adoption Code (MCL 710.21 et seq.); Due process; U.S. Const. amend. V & XIV, § 1; Const. 1963, art. 1, § 17; Murphy-DuBay v. Department of Licensing & Regulatory Affairs; York v. Civil Serv. Comm’n; Principle that an oral hearing is not necessary to provide a meaningful opportunity to be heard; English v. Blue Cross Blue Shield of MI; Charges & fees in adoption cases; MCL 710.54; MCL 710.54(1)-(5); MCL 710.54(7), (7)(a), & (10); In re MJG; In re MFG; “Child placing agency”; MCL 710.22(k); Standing; People v. Sledge

Summary:

The court held that non-party American Adoptions (American) was not denied its right to due process, and that it lacked standing to challenge the trial court’s failure to approve the payment of marketing fees by the petitioners-adoptive parents. However, it found that the trial court erred by disallowing the payment of administrative fees. Petitioners in these consolidated cases each adopted a child. American incurred various fees in each adoption. As part of the process, the trial court approved all the requested fees and costs related to the adoptions, with the exception of certain administrative fees and marketing fees. On appeal, the court rejected American’s argument that it was denied due process because it was unable to participate in the hearing related to the approval of the fees, noting the trial court “received materials to consider petitioners’ request to approve the fees, and among those materials was [American’s] letter outlining what the administrative fees covered.” However, the court agreed with American that the trial court erred when it denied the approval of the administrative fees, noting the expenses were for “items such as general contract labor, IT services, payroll, health insurance, professional insurance, office supplies, and rent.” Due to the nature of what these overhead services entailed, they were “not connected, or related in fact, to the two adoptions.” Lastly, the court held that American lacked standing to challenge the trial court’s failure to approve marketing fees in the adoptions, noting there was “no evidence of any connection between the marketing fees” and American. Reversed and remanded.

Full Text Opinion

Full Text Opinion

e-Journal #: 65583
Case: In re MJG
Court: Michigan Court of Appeals ( Published Opinion )
Judges: Saad, Meter, and Murray

Issues:

The Adoption Code (MCL 710.21 et seq.); Adoption fees; Interpretation of MCL 710.54; Connection & “relationship in fact” defined; MCL 710.54(7)(a); MCL 710.54(1)-(5); Whether the circuit court should have rejected the entirety of the fees simply because petitioners labelled them as attorney fees; Adams v. Adams; Application of MCL 710.54; Preliminary & administrative & client liaison services fees; MCL 710.54(1) & (2); MCL 710.54(2)(b) & (c); Marketing services fee; MCL 710.54(2)(a); Fundamental readying & legal analysis services fee; MCL 710.54(3); MCL 710.54(3)(e); MCL 710.27(1)(b) & (c); MCL 710.54(3)(f); Adoption opportunity services fee; MCL 710.54(2)(c) & (d); MCL 710.54(3)(d) & (g); MCL 710.54(5); MCL 710.54(3)(c); Appellant-Adoption Network Law Center (ANLC)

Summary:

In an issue of first impression as to interpretation of MCL 710.54, the court held that for fees under MCL 710.54(7)(a), “only fees that were for services made ‘in connection with the adoption’ require court approval. Thus, before a court disapproves any submitted fees, it should determine that the fees actually fall under the scope of the statute.” It further held “that simply because adoptive parents, as part of their required verified accounting, place certain fees or expenses before the court, does not in and of itself confer authority upon the court to permit or prohibit said fees. Rather, it is incumbent upon the trial court to determine in the first instance whether a submitted or requested fee falls within the purview of the statute.” Thus, the circuit court erred when it denied the entirety of the $21,400 fees. The court affirmed the circuit court’s denial of some fees, reversed the denial of others, and remanded for clarification regarding other fees. The case arose from the adoption of the child by the adoptive parents-petitioners under the Adoption Code, and specifically involved the fees paid by petitioners to appellant-ANLC for services performed that may have been related to the adoption process. Pursuant to MCL 710.54, the adoptive parents submitted their list of fees and expenses to the circuit court. And, though both the adoptive parents and ANLC agreed that the fees were acceptable, the circuit court ultimately rejected all of the fees, and ANLC was required to return the money. The court held that unquestionably, “the fees statute is complex and multilayered and could easily cause prospective adoptive parents to be over-inclusive in their submissions, especially considering that the court has the right to affirm or deny the adoption and the statute also provides criminal penalties for making omissions in the verified accounting.” It held that the “proper framework for analyzing fees under the statute involves these inquiries: (1) For each of ANLC’s fees, do they fall within the scope of the statute? If not, then the court has no authority to disapprove the fees. (2) If the fees do fall within the scope of the statute, are they prohibited by subsections (1) or (2)? (3) If they are not prohibited under subsections (1) or (2), are they permitted under subsection (3)?”

Full Text Opinion

Full Text Opinion

e-Journal #: 65579
Case: Joughin v. Joughin
Court: Michigan Court of Appeals ( Published Opinion )
Judges: Saad and Hoekstra; Dissent – Jansen

Issues:

Post-divorce proceeding involving entry of a proposed qualified domestic relations order (QDRO); Whether the effort to pursue entry of the QDRO was time-barred when it was not made until approximately 12 years after entry of the divorce judgment; Whether MCL 600.5809 controlled; Principle that a QDRO required by a divorce judgment is considered part of the judgment; Neville v. Neville; Jordan v. Jordan (TN App.); Duhamel v. Duhamel (NY Sup. Ct.); The Employment Retirement Income Security Act (ERISA); 29 USC § 1056(d)(3)(G)(i)

Summary:

The court held that the 10-year limitations period in MCL 600.5809(3) did not apply to the entry of a proposed QDRO because it is not an enforcement of a noncontractual money obligation, and that the plaintiff-ex-wife’s request for entry of the proposed QDRO was not time-barred. The parties’ divorce judgment was entered in 2003. It ordered them to cooperate in the execution of a QDRO to transfer the interest awarded to plaintiff, and required them to “execute whatever documents may be necessary to complete the transfer.” For whatever reason, they did not promptly do so. Plaintiff submitted the proposed QDRO in 2015. The defendant-ex-husband unsuccessfully objected. The court disagreed with the premise that MCL 600.5809 controlled, noting that the statute “applies only to ‘action[s] to enforce [] noncontractual money obligation[s].’” The court held in Neville that “when a judgment of divorce requires a QDRO to be entered, the QDRO is to be considered ‘as part of the divorce judgment.’” Because a “QDRO is part of the judgment, it necessarily cannot be viewed as enforcing that same judgment.” As the Tennessee Court of Appeals held in Jordan, “approval of the proposed QDRO is adjunct to the entry of the judgment of divorce and not an attempt to ‘enforce’ the judgment.” Further, entry of the order “did not compel the payment of any money to plaintiff.” A proposed QDRO entered by a trial court “is not enforceable until the plan administrator determines that the proposed QDRO is ‘qualified’ under ERISA.” Thus, plaintiff’s motion for entry of “the proposed QDRO was not an act to enforce a judgment or obligation.” Rather, under the circumstances, “the act to obtain entry of a proposed QDRO is a ministerial task done in conjunction with the divorce judgment itself.” The judgment established the distribution of the parties’ assets and expressly requested that they obtain entry of a proposed QDRO. Further, in contrast to “the standard enforcement case, neither party here is or has been prejudiced by the passage of time, because no party has changed any position relative to the annuity, nor has any party triggered the necessary preconditions for the application of the QDRO.” Affirmed.

Full Text Opinion

Full Text Opinion

This summary also appears under Alternative Dispute Resolution

e-Journal #: 65529
Case: Holloway v. Kelley
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Meter, and Shapiro

Issues:

Divorce; Dispute over retirement accounts; Order affirming an arbitration award; Limited judicial review of arbitration awards; Dick v. Dick; City of Ann Arbor v. American Fed’n of State, Cnty., & Mun. Employees (AFSCME) Local 369; MCR 3.602(J)(2); MCL 600.5081(2); Whether the arbitrator exceeded his authority by allegedly failing to follow Michigan law; Dohanyos v. Detrex Corp.; Bone v. Bone

Summary:

Concluding that the arbitrator followed the law and in no way exceeded his authority, the court affirmed the trial court’s order affirming the arbitration award in this divorce case. The plaintiff-ex-husband argued that the defendant-ex-wife should not have received any funds from certain retirement accounts. He claimed that the arbitrator exceeded his authority by not following Michigan law. He acknowledged “that ‘the increase in net worth of the parties may be divided even in short-term marriages[.]’” Citing Bone, he claimed that, nonetheless, their “respective contributions to the marital estate must be considered if such a division is made.” The court held that the award did not show a violation of the principles set forth in Bone. “The arbitrator found that the parties had a joint account into which both made deposits and that this account was used for marital expenses. The arbitrator also found that defendant had significantly altered her life by moving from New York City to Detroit for the marriage. The arbitrator specifically cited the Bone Court’s statement that a property settlement ‘is more correctly couched in terms of what happened during the marriage, i.e., an equitable division of any increase in net worth that may have occurred between the beginning and the end of the marriage.’” The arbitrator further “found that the appreciation in the two biggest retirement funds at issue was earned during the marriage through active involvement by plaintiff.” The court could not review this factual finding. While plaintiff also asserted that the award as to the retirement accounts was inequitable, this was “merely a rehashing of his earlier appellate arguments,” and the court could not substitute its judgment for the arbitrator’s judgment. He “did as he was asked—he resolved the ‘division of each party’s interest in retirement plans . . . .’”

 

e-Journal #: 65656
Case: Koch v. Koch
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Ronayne Krause, and Boonstra

Issues:

Divorce; Property division; Hodge v. Parks; Woodington v. Shokoohi; Gates v. Gates; Korth v. Korth; Determination of fault; McDougal v. McDougal; Welling v. Welling; Witness credibility; Phillips v. Phillips; MCR 2.613(C); Retirement benefits; Boonstra v. Boonstra; MCL 552.18(1); MCL 552.101(3); Booth v. Booth; Survivor benefit; Vander Veen v. Vander Veen; Magee v. Magee; Methods for the valuation & distribution of pension benefits; Boyd v. Boyd; MCL 552.23(1); Attorney fees; Richards v. Richards; MCR 3.206(C); Whether the trial court should have held an evidentiary hearing; B & B Inv. Group v. Gitler; Abandonment of the issue of reasonableness of the fees as to the hourly rate & number of hours billed; Head v. Phillips Camper Sales & Rental, Inc.

Summary:

The court held that the trial court did not give undue weight to the defendant-ex-husband’s fault but also considered a number of factors in disposing of the parties’ estate. It was not definitely and firmly convinced that the disposition was inequitable. Also, the trial court did not invade his separate estate, and did not err by failing to consider the potential financial impact of the survivor benefit on the plaintiff-ex-wife. Finally, the court upheld the award of attorney fees to plaintiff. Thus, it affirmed the judgment of divorce that awarded the plaintiff 55% of defendant’s gross monthly pension benefits and required him to pay a portion of her attorney fees. Defendant argued that the trial court erred by holding that he was at fault for the breakdown of the marriage and by giving undue weight to his fault in distributing the parties’ estate. “Plaintiff testified to repeated acts of domestic violence during the marriage. Both parties admitted” that he was arrested and convicted for domestic violence. Moreover, he admitted to having given plaintiff a bloody nose once with a car door and to hitting her. Although the trial court found that he “was at fault, the property split was not predicated solely on fault, but on a number of factors the trial court considered to arrive at an equitable distribution of the marital estate.” It noted that “the parties were married for 27 years, and that both had contributed to the marital estate during the marriage.” It found that while “defendant had health issues, some of his issues would be remedied with a scheduled knee surgery.” Further, although he had been the primary wage-earner in the marriage, he “was retired and had an annual pension income of $51,880.” Plaintiff had worked for a school district “for 22 years with an annual income of $15,058.” Her health insurance was through defendant’s employment, but due to his insistence on a divorce instead of a judgment of separate maintenance, she “would be required to spend an additional ‘$400 to $700’ a month for health insurance.”

 

e-Journal #: 65795
Case: Chichester v. Chichester
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Motion for attorney fees under the terms of the parties’ consent judgment of divorce

Summary:

The court held that the trial court did not err by denying the defendant-ex-wife’s request for attorney fees and costs pursuant to the parties’ consent judgment of divorce. On appeal, the court rejected her argument that she was entitled to attorney fees and costs, noting that neither the consent judgment nor the property settlement agreement provided for such relief. It noted that attorney fees and costs were not mandated under the provision in the consent judgment requiring “the party ‘determined by the presiding judge to be in default’ to pay attorney fees and costs to the non-defaulting party” because “the trial judge did not determine that plaintiff . . . was in default . . . .” For the same reason, attorney fees and costs were not mandated under the provision in the property settlement agreement requiring that “the presiding judge must make a determination that a party is in default of the agreement before the non-defaulting party may recover attorney fees and costs.” Finally, it noted that attorney fees and costs were not mandated under a second provision in the settlement agreement providing that “a breach of the agreement entitles the non-breaching party to recover attorney fees and costs.” It found that “[a]lthough that provision does not require the presiding judge to make a determination that a party breached the agreement, it still requires a breach.” Here, “the trial court’s ruling made plain that [plaintiff] was complying with the terms of the property settlement agreement and the consent judgment of divorce. In other words, there was no breach of the agreement.” Affirmed.

 

e-Journal #: 65486
Case: Marchese v. Marchese
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Jansen, Murphy, and Borrello

Issues:

Contempt; MCL 600.1701(g); In re Contempt of Dudzinski; In re Contempt of Robertson; Kirby v. Michigan High Sch. Athletic Ass’n; Distinguishing criminal contempt from civil contempt; In re Contempt of Rochlin; The trial court’s authority to punish contempt; MCL 600.1711(2); MCR 3.606(A); Principle that the rules of evidence apply at the hearing on the contempt charges; MRE 1101(a) & (b)(4); In re Contempt of Calcutt; Sanctions; Attorney fees & costs; MCR 3.206(C)(2)(b); Statutory contempt; MCL 600.1721; Taylor v. Currie; Reasonableness; MRPC 1.5(a); Smith v. Khouri; Wood v. Detroit Auto. Inter-Ins. Exch.; Riemer v. Johnson; Cassidy v. Cassidy

Summary:

Holding that there was no error in finding the plaintiff-ex-wife in contempt of court or in awarding sanctions to the defendant-ex-husband, the court affirmed. The trial court found plaintiff in contempt for violating the parties’ consent judgment of divorce by attempting to undermine the sale of their cottage and by interfering with their child’s relationship with defendant. It later awarded defendant $22,439 in sanctions. On appeal, the court rejected plaintiff’s argument that defendant’s show cause motion alleged a failure or refusal by plaintiff to allow parenting time on one particular weekday, but that the divorce judgment did not specify any particular weekday that he was entitled to parenting time. It found that defendant alleged plaintiff was “preventing defendant’s exercise of parenting time on a continuing or ongoing basis, and the reference to a date was merely to identify when plaintiff sent the text message.” It next found there was “overwhelming evidence that plaintiff violated the divorce judgment with respect to the cottage and its sale, including her own testimony that she had changed the locks.” The court rejected her claim that defendant disregarded a possible purchase of the cottage by her mother, noting there was never a written offer by her mother or father, “and even had there been a valid and timely offer, plaintiff’s remedy would have been to file a motion seeking an order to force” defendant to accept it, and it would not have excused her contempt. The court also rejected her contention that there was “‘no damage, no harm, no loss, and no violation of any court order (including the judgment) and certainly no interference’” with any court obligation, noting her “actions forced defendant to commence contempt proceedings, resulting in defendant incurring legal expenses.” Finally, it rejected her argument that there was no need for defendant to litigate a claim of contempt, noting “that defendant incurred legal expenses, as necessary to obtain plaintiff’s compliance with the divorce judgment, to close on the cottage’s sale, and to procure parenting time.” Also, defendant was not required to elicit independent expert testimony on attorney fees, defense counsel’s $350 per hour rate was not unreasonable, plaintiff’s alleged inability to pay was not relevant in the award, and attorney fees connected to consultation with a CPA on IRS-related property matters were relevant.

 

e-Journal #: 65695
Case: Guiles v. Guiles
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Ronayne Krause, and Boonstra

Issues:

Divorce; Spousal support; Loutts v. Loutts; MCL 552.13(1); MCL 552.23(1); Berger v. Berger; Myland v. Myland; Gates v. Gates; Credibility determinations; Butgereit v. Butgereit; Whether the trial court’s ruling assigning to defendant 100% of plaintiff’s accrued uninsured health care expenses was fair & reasonable; Butler v. Simmons-Butler; Woodington v. Shokoohi

Summary:

The court held that, giving deference to the trial court’s special opportunity to determine the witnesses’ credibility, the defendant-ex-husband did not meet his burden of showing that the trial court clearly erred as to any of the pertinent spousal support factors. He also did not show on the basis of the trial court’s findings that its decision as to spousal support was outside the range of reasonable and principled outcomes. Further, it found that the trial court’s decision to assign to him the responsibility for the contested health care expenses was equitable. Thus, the court affirmed the judgment of divorce dissolving the parties’ marriage of over 23 years and awarding the plaintiff-ex-wife spousal support of $3,000 a month for 10 years. Defendant recognized that the trial court made findings as to all factors that the court has recognized may be relevant to making a just and reasonable award of spousal support under the circumstances. He conceded that in light of the relevant factors, a significant award of spousal support to plaintiff (defendant suggested $1,800 per month) was just and reasonable. The court concluded that his argument that the trial court abused its discretion in determining a just and reasonable amount of spousal support had several flaws. First, he failed to establish that the trial court clearly erred in its findings. Second, he employed, “in essence, a formulaic approach by subtracting from what he considers would be a just and reasonable support amount what he concludes that plaintiff should be able to earn by working. But a strict formulaic approach may not be utilized in determining a just and reasonable amount of spousal support.” Further, the trial court’s opinion supported “that it, in fact, considered plaintiff’s ability to earn a limited income working at an unskilled, low-wage position without imputing to plaintiff a specific amount of income.”

 

e-Journal #: 65796
Case: Eising v. Eising
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Divorce; Spousal support; Berger v. Berger; Myland v. Myland; Equal division of an income tax debt; Distribution of marital assets & debts; Gates v. Gates; Sparks v. Sparks; Byington v. Byington

Summary:

Holding that plaintiff-ex-wife failed to show that the award of modifiable spousal support of $1,000 a month for 5 years was inequitable, or that it was inequitable to hold her responsible for half of the parties’ 2015 tax debt, the court affirmed the divorce judgment. In determining its support award, the trial court considered the parties’ conduct and past relations. It found that “their relationship had been unstable since about 2006” as the defendant-ex-husband had twice left the marital home. It also “noted that plaintiff had not worked year-round,” as she was an elementary school cook, and “thus her earning ability was not truly reflected by her income. On the other hand, defendant worked long hours to maintain his pay and bonus checks.” Next, it noted that this was a long-term marriage (over 35 years). Third, it concluded that “both parties had the ability to work full-time.” Fourth, it noted that its property distribution was fairly equal. Fifth, it noted the parties’ ages (they were both 55) “and concluded that they both had the capacity to live full, complete lives.” Sixth, it “concluded that defendant’s income was significantly greater than plaintiff’s” and he had the ability to pay spousal support. Seventh, it concluded that she was going to stay in the martial home for 2 more years and would be paying $200 a month in rent. “Defendant would also be paying rent and his own living expenses.” Eighth, it found that plaintiff would need “financial assistance and defendant was in a position to provide” it. Ninth, “neither party had health issues that kept them from working.” Tenth, the trial court found that their standard of living would not significantly change, and eleventh, it concluded that neither party was responsible for anyone else’s support, although defendant helped their daughter with car expenses. Plaintiff failed to show that any of these factual findings were clearly erroneous. Further, examining the division of the tax debt in light of the entire properly division, splitting that debt was not unfair.

 

e-Journal #: 65628
Case: Andrusz v. Andrusz
Court: Michigan Court of Appeals ( Order )
Judges: Ronayne Krause, Riordan, and Swartzle

Issues:

Divorce; Spousal support; Ackerman v. Ackerman; Whether the consent judgment was ambiguous; Coates v. Bastian Bros., Inc.; Reliance on extrinsic evidence to resolve an ambiguity; Shay v. Aldrich; Consideration of the parties’ conduct; Course of performance; Schroeder v. Terra Energy, Ltd.; Whether the plaintiff-ex-husband’s obligation to pay was out of his earned income or his taxable income; Plaintiff’s support of the parties’ adult children (attending college) as a fact for the trial court to consider; Elahham v. Al-Jabban; Lesko v. Lesko; Reduction in income; Pohl v. Pohl

Summary:

In an order, the court amended its published opinion (see e-Journal # 65601 in the 7/17/17 edition) to correct a clerical error. The order amended the first sentence in the last paragraph to read: “The trial court’s order is reversed to the extent it includes the entirety of plaintiff’s earned income beyond his taxable income in calculating his spousal support obligations.” The opinion remained unchanged in all other respects.

Full Text Opinion

Full Text Opinion

e-Journal #: 65591
Case: Leagon v. Leagon
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – O’Brien, Jansen, and Stephens

Issues:

Motion to change custody; Statutory best interest factors; MCL 722.23; Factors (d), (f), (g), & (j); Distinguishing Kessler v. Kessler; Berger v. Berger; Credibility determinations; Shann v. Shann; Attorney fees; MCL 552.13(1); MCR 3.206(C); Richards v. Richards; Borowsky v. Borowsky; Abandoned argument as to MCL 722.1311 (part of the Uniform Child Custody Jurisdiction & Enforcement Act)

Summary:

Holding that the trial court’s findings on best interest factors (d), (f), (g), and (j) were not against the great weight of the evidence, and that the plaintiff-father was not entitled to an award of attorney fees, the court affirmed the order denying his motion to change custody of the parties’ children and his request for attorney fees. As to factor (d), his reliance on Kessler was misplaced. The children had never lived in the city where plaintiff now lived (in a home owned by his fiancée) apart from staying there during his parenting time. The parties and the children lived elsewhere in Michigan “before moving to China in 2011. Although plaintiff asserts that the children were ‘uprooted’ from Michigan by defendant, it was in fact both parties as a married couple who moved with the children to China in 2011. In 2012, plaintiff left the family and moved back to Michigan, while defendant and the children continued living in China with plaintiff’s consent.” Defendant and the children moved from China to New Jersey in 2015 after she “obtained a job in New York City. Plaintiff has extended family members in the New York City area. The children have begun attending school, church, and catechism near their home in New Jersey.” Thus, the facts were “not even remotely similar” to those in Kessler, and the trial court’s finding that factor (d) favored defendant was not against the great weight of the evidence. The evidence also did not clearly preponderate against its finding that factor (f) favored her. Plaintiff cited “no authority establishing that moral transgressions which occurred before the entry of a divorce judgment are barred from consideration under factor (f) or establishing that only moral transgressions that occurred after the filing of a motion to change custody may be considered” under this factor nor did the court find any authority to this effect. The trial court’s findings that factor (g) favored defendant and that factor (j) did not favor either party were also not against the great weight of the evidence. The court also found within the range of principled outcomes the trial court’s determination that plaintiff did not establish either that he “was unable to pay his attorney fees or that defendant was able to pay” them.

 

e-Journal #: 65868
Case: Bridge v. Bridge
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Boonstra, Ronayne Krause, and Swartzle

Issues:

Divorce; Child support; Borowsky v. Borowsky; 2017 MCSF 2.01(E)(1), (4)(b), & (4)(e); Whether the trial court should have imputed income to the plaintiff-ex-wife; Carlson v. Carlson; Spousal support; Berger v. Berger; Korth v. Korth; Retroactive modification of support order; MCL 552.603(2) & (3); Fisher v. Fisher; Established custodial environment; Pierron v. Pierron; Shulick v. Richards; MCL 722.27(1)(c); Best-interests determination; MCL 722.26a(1); MCL 722.23; MCL 722.23(k); Factors (a), (b), (c), (f), (g), (h), & (j); Child dependency tax exemptions; Fear v. Rogers

Summary:

The court affirmed the parties’ judgment of divorce establishing joint legal custody of the parties’ two children as well as child and spousal support. The defendant-ex-husband argued that the trial court misunderstood the nature of his business, which he asserted led it to erroneously attribute to him an income of $132,000 for child support purposes. The trial court “did not err by disallowing certain business expenses.” He did not “explain how expenses incurred for attending a conference in Wyoming were related to his Lansing-based business.” Although he asserted that “traveling to conferences is part of his job as a salesman, he emphasized that he only can sell his products to neurologists located in the Lansing area.” Also, his tax advisor could not explain which of defendant’s asserted auto expenses were for business and which were personal. “The trial court must add back into a parent’s income insurance, utility, entertainment, and automobile expenses, as well as travel expenses, unless they are ‘inherent in the nature of the business or occupation,’ even if those expenses are tax deductible.” An IRS finding that the expenses are reasonable “is not determinative.” The trial court’s decision as to imputing income “was within the range of reasonable and principled outcomes because it was consistent with defendant’s historical earning ability,” his sales quotas, and his subcontractor’s expected earnings. In her cross-appeal, the plaintiff-ex-wife argued that the trial court erred by changing the children’s legal custody from sole to joint, because it failed to determine their established custodial environment (ECE) and to apply the proper burden of proof. She also argued the trial court’s best-interest analysis was flawed. The court disagreed in all respects. Her arguments on appeal that the trial court did not determine the children’s custodial environment and did not apply the appropriate standard of proof had no merit. Further, it was clear from the record that the trial court determined that a change of legal custody from sole to joint would change the children’s ECE and thus, that defendant had to “present clear and convincing evidence that such a change was in the children’s best interests.”

 

e-Journal #: 66009
Case: Ali v. Ali
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gadola, Cavanagh, and Swartzle

Issues:

Action to determine interest in a parcel of real property in a divorce case; Due process; Bonner v. City of Brighton; Failure to issue a summons; MCR 2.102; Failure to file a complaint; MCR 2.111(B); Failure to allow a responsive pleading; MCR 2.301; Denial of the opportunity to participate in discovery; MCR 2.301; Denial of time to prepare for trial; MCR 2.501(C); Failure to allow a request for a jury trial; MCR 2.508(B)(1); Joinder; MCR 2.205; Distribution of property in a divorce; Reeves v. Reeves; Butler v. Simmons-Butler; Whether the trial court’s initial ruling was erroneous; MCR 2.119(F); Whether there was sufficient reason to grant a new trial; MCR 2.611(A); Whether there was sufficient ground for relief from judgment; MCR 2.612(C); Imputation of income; Carlson v. Carlson; Attorney fees; MCR 3.206(C)(2); Richards v. Richards; Reasonableness; Reed v. Reed; Entry of judgment; MCR 2.602(B); In re Leete Estate; Harmless error; MCR 2.613(A)

Summary:

Holding that the trial court properly found that defendant-Abdel had no interest in the property at issue, divided the proceeds, and imputed income to defendant-Ali but erred in ordering Ali to pay attorney fees and in entering its judgment, the court affirmed in part, but vacated the entry of the divorce judgment, reversed the order awarding attorney fees, and remanded. During their divorce, plaintiff claimed Ali owned the property, while Ali claimed it was owned by Abdel, who also claimed an interest in the property. The trial court joined Abdel in the action. Considering plaintiff’s testimony that Ali told her that he purchased the property, and the trial court’s determination that Ali and Abdel “were not credible, the trial court’s findings” that Ali owned the “property and was attempting to conceal his ownership of this asset” were not erroneous. The court also found that the trial court did not err by upholding its ruling that Abdel had no interest in the property in response to defendants’ motion for rehearing, reconsideration, new trial, or relief from judgment. They “failed to establish any error or irregularity considering that the trial court’s decision was based in large part on the credibility of” the witnesses, or that any of the evidence presented was newly discovered. The court upheld the award of 80% of the value of the property to plaintiff and only 20% of the value to Ali, finding there was “no indication that the trial court gave undue weight to principles of equity and the fact” that Ali tried to conceal the property. It further rejected the argument that the trial court abused its discretion by imputing income of $27,397 to Ali. However, the court held that the trial court erred by ordering Ali to pay plaintiff’s attorney fees in the amount of $8,718 from his portion of the proceeds of the property sale. It noted that plaintiff did not allege or show that Ali “refused to comply with any court order, and thus, she failed to show facts sufficient to justify the award.” Further, the trial court “did not find that plaintiff incurred attorney fees because defendant refused to comply with a previous court order.” The trial court also failed to determine reasonableness. Finally, the court found that the trial court erred by entering the judgment of divorce without giving defendants an opportunity to object, and by including in the judgment a provision that was not part of its opinion and order, noting it “failed to comply with any of the methods for entering a judgment identified in” the court rule, and the error was not harmless.

Full Text Opinion

Full Text Opinion

 

e-Journal #: 65796
Case: Eising v. Eising
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Divorce; Spousal support; Berger v. Berger; Myland v. Myland; Equal division of an income tax debt; Distribution of marital assets & debts; Gates v. Gates; Sparks v. Sparks; Byington v. Byington

Summary:

Holding that plaintiff-ex-wife failed to show that the award of modifiable spousal support of $1,000 a month for 5 years was inequitable, or that it was inequitable to hold her responsible for half of the parties’ 2015 tax debt, the court affirmed the divorce judgment. In determining its support award, the trial court considered the parties’ conduct and past relations. It found that “their relationship had been unstable since about 2006” as the defendant-ex-husband had twice left the marital home. It also “noted that plaintiff had not worked year-round,” as she was an elementary school cook, and “thus her earning ability was not truly reflected by her income. On the other hand, defendant worked long hours to maintain his pay and bonus checks.” Next, it noted that this was a long-term marriage (over 35 years). Third, it concluded that “both parties had the ability to work full-time.” Fourth, it noted that its property distribution was fairly equal. Fifth, it noted the parties’ ages (they were both 55) “and concluded that they both had the capacity to live full, complete lives.” Sixth, it “concluded that defendant’s income was significantly greater than plaintiff’s” and he had the ability to pay spousal support. Seventh, it concluded that she was going to stay in the martial home for 2 more years and would be paying $200 a month in rent. “Defendant would also be paying rent and his own living expenses.” Eighth, it found that plaintiff would need “financial assistance and defendant was in a position to provide” it. Ninth, “neither party had health issues that kept them from working.” Tenth, the trial court found that their standard of living would not significantly change, and eleventh, it concluded that neither party was responsible for anyone else’s support, although defendant helped their daughter with car expenses. Plaintiff failed to show that any of these factual findings were clearly erroneous. Further, examining the division of the tax debt in light of the entire properly division, splitting that debt was not unfair.

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e-Journal #: 65695
Case: Guiles v. Guiles
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Ronayne Krause, and Boonstra

Issues:

Divorce; Spousal support; Loutts v. Loutts; MCL 552.13(1); MCL 552.23(1); Berger v. Berger; Myland v. Myland; Gates v. Gates; Credibility determinations; Butgereit v. Butgereit; Whether the trial court’s ruling assigning to defendant 100% of plaintiff’s accrued uninsured health care expenses was fair & reasonable; Butler v. Simmons-Butler; Woodington v. Shokoohi

Summary:

The court held that, giving deference to the trial court’s special opportunity to determine the witnesses’ credibility, the defendant-ex-husband did not meet his burden of showing that the trial court clearly erred as to any of the pertinent spousal support factors. He also did not show on the basis of the trial court’s findings that its decision as to spousal support was outside the range of reasonable and principled outcomes. Further, it found that the trial court’s decision to assign to him the responsibility for the contested health care expenses was equitable. Thus, the court affirmed the judgment of divorce dissolving the parties’ marriage of over 23 years and awarding the plaintiff-ex-wife spousal support of $3,000 a month for 10 years. Defendant recognized that the trial court made findings as to all factors that the court has recognized may be relevant to making a just and reasonable award of spousal support under the circumstances. He conceded that in light of the relevant factors, a significant award of spousal support to plaintiff (defendant suggested $1,800 per month) was just and reasonable. The court concluded that his argument that the trial court abused its discretion in determining a just and reasonable amount of spousal support had several flaws. First, he failed to establish that the trial court clearly erred in its findings. Second, he employed, “in essence, a formulaic approach by subtracting from what he considers would be a just and reasonable support amount what he concludes that plaintiff should be able to earn by working. But a strict formulaic approach may not be utilized in determining a just and reasonable amount of spousal support.” Further, the trial court’s opinion supported “that it, in fact, considered plaintiff’s ability to earn a limited income working at an unskilled, low-wage position without imputing to plaintiff a specific amount of income.”

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e-Journal #: 65958
Case: Doyle v. Doyle
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Boonstra, Ronayne Krause, and Swartzle

Issues:

Divorce; Marital property; Valuation of the business; Whether the low valuation of the business “skewed the entire property division”; Byington v. Byington; Sparks v. Sparks; Spousal support; Loutts v. Loutts; MCL 552.23(1); Myland v. Myland; Attorney & expert fees; Gates v. Gates; Sands v. Sands

Summary:

The court held that the trial court’s valuation of the business was based on findings of fact that were clearly erroneous, and the plaintiff-ex-wife should not be required to pay the defendant-ex-husband in order to make the property division equal based on the trial court’s business valuation finding. Thus, it remanded for an explanation on the record as to this matter. However, the trial court did not abuse its discretion in holding that spousal support was not warranted, by ordering the parties to pay their own attorney fees, and not requiring defendant to pay for plaintiff’s expert’s testimony. Plaintiff argued that the trial court abused its discretion by rejecting the expert’s valuation of approximately $513,000, and instead concluding that the business was worth $69,364. As to unreported cash income to company, the trial court did not err in crediting defendant’s testimony, but did clearly err by either (1) failing to account for the difference somewhere in its calculation or (2) failing to state in its opinion that the matter had no practical impact on valuation, so any dispute over the cash could be ignored for valuation purposes. The trial court also did not explain how it used a negative net profit rate and still arrived at a positive value for the company under the income approach, and this was error. As to non-operating assets, the trial court’s credibility determination was not error, in light of the expert’s admission that he never visited the company’s worksite. As to excess-operating fixed assets, the court held that by arriving at $69,364, it was mathematically impossible for the trial court to have adjusted for all of the flaws it identified. The court remanded for an explanation on the record as to how the trial court arrived at its determination of value and how its identification and consideration of the “flaws” it found in the valuation process affected this determination. Plaintiff also argued that the trial court’s low valuation of the business “skewed the entire property division,” resulting in an inequitable order that she pay defendant $81,017 in cash. “Plaintiff’s settlement from the property division consisted solely of her retirement accounts and life insurance policy, which were worth $600,366. Defendant received his business, the marital home, and other property worth $519,356.” The court agreed that the cash award to defendant was not equitable, and that the finding as to the valuation of the business was in error. Affirmed in part and remanded.

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This summary also appears under Negligence & Intentional Tort

e-Journal #: 65966
Case: Prose v. Prose
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gadola, Meter, and Fort Hood

Issues:

Post-divorce dispute over property; Leave to amend; MCR 2.118(A)(2); Ben P Fyke & Sons, Inc. v. Gunter Co.; Avoiding forfeiture of a claim; Kern v. Blethen-Coluni; People v. Carines; Relief from judgment; MCR 2.612; Nederlander v. Nederlander; Triplett v. St. Amour; Grace v. Grace; Foreman v. Foreman; Res judicata; Sewell v. Clean Cut Mgmt., Inc.; Collateral estoppel; Monat v. State Farm Ins. Co.; Arbitration; Bayati v. Bayati; Fraudulent misrepresentation; Bergen v. Baker; Hi–Way Motor Co. v. International Harvester Co.; Fraud in the inducement; Custom Data Solutions, Inc. v. Preferred Capital Inc.; Principle that a plaintiff cannot ignore information that contradicts an alleged misrepresentation; Titan Ins. Co. v. Hyten; Legal opinions; Cummins v. Robinson Twp.; Ripeness; Citizens Protecting MI’s Constitution v. Secretary of State

Summary:

The court held that the defendant-ex-husband was entitled to summary disposition as to the plaintiff-ex-wife’s claims related to a pending lawsuit, but that plaintiff was entitled to leave to amend to add claims related to two missing statues. After their divorce, plaintiff sued defendant for fraudulent inducement, fraudulent misrepresentation, silent fraud, and innocent misrepresentation. She claimed he falsely represented during the divorce proceeding that his medical practice would abandon a pending lawsuit it had filed against another business, that he concealed the existence of the litigation, and that he misrepresented the status of it. She then sought leave to amend to add the same claims with regard to two sculptures that had gone missing. The trial court granted summary disposition for defendant as to the claims involving the litigation, but granted plaintiff leave to amend as to the claims involving the statues. On appeal, the court agreed with plaintiff that Grace and Foreman provided authority for allowing her amended complaint, and found Nederlander and Triplett distinguishable. It rejected defendant’s argument that plaintiff’s claims were barred by res judicata and collateral estoppel, noting the “prior litigation did not resolve issues of” fraud, and “the claims relate to evidence arising after the litigation in question.” As to his contention that the trial court erred in ordering the parties to arbitrate the claims in plaintiff’s amended complaint because the arbitration agreement did not encompass tort claims, the court found that, “at this stage in the proceedings, when plaintiff has simply been allowed to proceed on her amended complaint in the circuit court, it was premature for the court to refer any issue back to arbitration . . . .” The court rejected plaintiff’s argument that the trial court erred in finding she failed to plead valid claims of fraud. It noted that the “litigation was not a secret and was clearly referenced in the federal district court’s” opinion, of which she had a copy. Finally, the court found her remaining claims untenable. Affirmed in part, vacated in part, and remanded.

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e-Journal #: 65795
Case: Chichester v. Chichester
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Motion for attorney fees under the terms of the parties’ consent judgment of divorce

Summary:

The court held that the trial court did not err by denying the defendant-ex-wife’s request for attorney fees and costs pursuant to the parties’ consent judgment of divorce. On appeal, the court rejected her argument that she was entitled to attorney fees and costs, noting that neither the consent judgment nor the property settlement agreement provided for such relief. It noted that attorney fees and costs were not mandated under the provision in the consent judgment requiring “the party ‘determined by the presiding judge to be in default’ to pay attorney fees and costs to the non-defaulting party” because “the trial judge did not determine that plaintiff . . . was in default . . . .” For the same reason, attorney fees and costs were not mandated under the provision in the property settlement agreement requiring that “the presiding judge must make a determination that a party is in default of the agreement before the non-defaulting party may recover attorney fees and costs.” Finally, it noted that attorney fees and costs were not mandated under a second provision in the settlement agreement providing that “a breach of the agreement entitles the non-breaching party to recover attorney fees and costs.” It found that “[a]lthough that provision does not require the presiding judge to make a determination that a party breached the agreement, it still requires a breach.” Here, “the trial court’s ruling made plain that [plaintiff] was complying with the terms of the property settlement agreement and the consent judgment of divorce. In other words, there was no breach of the agreement.” Affirmed.

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e-Journal #: 65656
Case: Koch v. Koch
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Ronayne Krause, and Boonstra

Issues:

Divorce; Property division; Hodge v. Parks; Woodington v. Shokoohi; Gates v. Gates; Korth v. Korth; Determination of fault; McDougal v. McDougal; Welling v. Welling; Witness credibility; Phillips v. Phillips; MCR 2.613(C); Retirement benefits; Boonstra v. Boonstra; MCL 552.18(1); MCL 552.101(3); Booth v. Booth; Survivor benefit; Vander Veen v. Vander Veen; Magee v. Magee; Methods for the valuation & distribution of pension benefits; Boyd v. Boyd; MCL 552.23(1); Attorney fees; Richards v. Richards; MCR 3.206(C); Whether the trial court should have held an evidentiary hearing; B & B Inv. Group v. Gitler; Abandonment of the issue of reasonableness of the fees as to the hourly rate & number of hours billed; Head v. Phillips Camper Sales & Rental, Inc.

Summary:

The court held that the trial court did not give undue weight to the defendant-ex-husband’s fault but also considered a number of factors in disposing of the parties’ estate. It was not definitely and firmly convinced that the disposition was inequitable. Also, the trial court did not invade his separate estate, and did not err by failing to consider the potential financial impact of the survivor benefit on the plaintiff-ex-wife. Finally, the court upheld the award of attorney fees to plaintiff. Thus, it affirmed the judgment of divorce that awarded the plaintiff 55% of defendant’s gross monthly pension benefits and required him to pay a portion of her attorney fees. Defendant argued that the trial court erred by holding that he was at fault for the breakdown of the marriage and by giving undue weight to his fault in distributing the parties’ estate. “Plaintiff testified to repeated acts of domestic violence during the marriage. Both parties admitted” that he was arrested and convicted for domestic violence. Moreover, he admitted to having given plaintiff a bloody nose once with a car door and to hitting her. Although the trial court found that he “was at fault, the property split was not predicated solely on fault, but on a number of factors the trial court considered to arrive at an equitable distribution of the marital estate.” It noted that “the parties were married for 27 years, and that both had contributed to the marital estate during the marriage.” It found that while “defendant had health issues, some of his issues would be remedied with a scheduled knee surgery.” Further, although he had been the primary wage-earner in the marriage, he “was retired and had an annual pension income of $51,880.” Plaintiff had worked for a school district “for 22 years with an annual income of $15,058.” Her health insurance was through defendant’s employment, but due to his insistence on a divorce instead of a judgment of separate maintenance, she “would be required to spend an additional ‘$400 to $700’ a month for health insurance.”

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