UPDATES IN MICHIGAN FAMILY LAW

Divorce | Who Keeps the House in this Declining Market?

One of the most troublesome issues in divorce settlements today is what will happen with the house? This is usually a difficult question for the mother of young children, if she's the custodial parent. She says: "Should I keep the house for the kids so that they are in familiar surroundings, still in the same neighborhood and/or school, to minimize the trauma of the divorce for them?" Making this decision with that as her frame of mind is bound to create financial problems down the road.

Photo credit: Bossip.com

What is Child Abuse and/or Child Neglect?

Determining whether and/or when to report suspected child abuse or neglect can be difficult. A bruise on a toddler's forehead may be the result of learning to walk or the result of abuse. When in doubt, contact the local DHS office for consultation.

If you suspect abuse or neglect, call 855-444-3911 any time day or night. This toll-free phone number allows you to report abuse or neglect of any child or adult to the Michigan Department of Human Services.

Attorney's Charging Lien on Entireties Property is Invalid

Law firms negotiating a Fee Agreement with payment secured by a lien against real estate must take care to ensure that the real estate encumbered by the lien is truly valid security. In an unpublished decision, the Michigan Court of Appeals based its decision upon earlier cases holding that neither a husband nor a wife holding title to real estate in a tenancy by the entireties may, without written permission of the other spouse, create a valid lien against that property.

In Smith v Vainik, Linda, a divorced woman, sued her husband Richard's former attorney for quiet title to the former marital dwelling. In 2003, Richard's former attorney had unilaterally granted a lien to his attorneys on his purported “tenant in common interest” in the house for unpaid attorney fees incurred as a result of the firm's representation of him in an earlier divorce action, which was later dismissed.

Legal Writing | Fit or Flabby?

Thanks to Elizabeth Sadowski for this great tool for legal writers. Nothing irritates trial judges more than a brief that is too verbose and is otherwise poorly written and/or organized. Because our trial briefs are our first opportunity to explain the facts of the case and the applicable law, nothing could be more important than making sure that the trial brief doesn't simply annoy the judge or referree. A succinct statement of the chronology and a brief explanation of applicable law will make a great first impression. Liz wrote on the State Bar of Michigan's Listserv yesterday:

I ran across this interesting  piece on writing skills for academics (that means us, I believe) on the State Bar’s Newslinks page. It’s an article about Prof. Helen Sword,  who wrote two books on academic writing, The Writer’s Diet and Stylish Academic Writing.

Professor Sword posted a free on line tool to test whether your writing is “fit” or “flabby”.  Give it a try, if you like. [I just copied and pasted part of a brief into notepad to remove the Word elements that interfere with html. I excised quotes from cases I cited so that I was testing only my own writing.]

Legal Writing | Fit or Flabby?

Thanks to Elizabeth Sadowski for this great tool for legal writers. Nothing irritates trial judges more than a brief that is too verbose and is otherwise poorly written and/or organized. Because our trial briefs are our first opportunity to explain the facts of the case and the applicable law, nothing could be more important than making sure that the trial brief doesn't simply annoy the judge or referree. A succinct statement of the chronology and a brief explanation of applicable law will make a great first impression. Liz wrote on the State Bar of Michigan's Listserv yesterday:

I ran across this interesting  piece on writing skills for academics (that means us, I believe) on the State Bar’s Newslinks page. It’s an article about Prof. Helen Sword,  who wrote two books on academic writing, The Writer’s Diet and Stylish Academic Writing.

Inheritances as Separate Property? Only if not Commingled.

The importance of segregating separate property (money, stock accounts, inheritances, for example) is emphasized once more in an unpublished but instructive case from the Michigan Court of Appeals released on June 26, 2012. [Legalo v Legalo, unpublished, June 20, 2012] In that case, the husband ["H"]  During the marriage, H inherited $125,000 from his parents. He deposited this money into the parties' joint account.  During the 37-year marriage, the money was moved a couple times, but ultimately it was placed in a joint account belonging to both the parties. $96,000 was used from the joint account to pay off the marital home.

Difficulties Establishing & Protecting Legal Family Ties | Same Sex Couples

The New York Times took a look at the obstacles faced by same sex couples attempting to establish legal ties to children. With A.R.T., many lesbian couples choose to have children. In some states, where same-sex unions are recognized by law, some obstacles are not present--school enrollments, for example. In Your Money, the NY Times explores some of the benefits that these couples have to give up. Included is the right to survivor benefits from Social Security. Some couples have to give up rights to retirement plans of a partner.

When the couple has minor children, how do couples protect their children? The article discusses the challenges faced by these parents and how some choose to accomplish this.

18-year-old's Income Not Considered in Child Support Modification

An Indiana appellate court held in Ashabranner v. Wilkins, Docket No. 22A01-1109-DR-411
(Indiana Court of Appeals, June 15, 2012) [For Publication] that the trial court could not consider an18-year-old daughter's income and ability to provide for herself when determining amount of child support which father was required to continue to pay. A child who is not yet emancipated is not responsible for providing for him or herself, and his or her income should not be considered by a court determining the amount of child support owed.

Download Ashabranner_v_Wilkins may be read here. 

Unsubstantiated CPS Reports Lead to Change in Custody

The court of appeals released an opinion on July 17, 2012 affirming the trial court's decision to award sole legal and sole physical custody to the father and to suspend the parenting time of the mother until further order of the court where the mother had made numerous unsubstantiated CPS reports alleging sexual abuse of the children.

Unsubstantiated allegations were made to CPS in 2009. It was recommended that defendant mother’s parenting time be suspended until further order and until after she engaged in counseling to address her suspected Munchausen syndrome by proxy.

In September 2010, the father moved for a change in custody based largely on the continued and unsubstantiated allegations of sexual abuse. Following four days of hearings on custody, the hearing referee issued a report and recommendation finding that plaintiff should be granted sole legal and sole physical custody of both minor children.

Dividing Military Pensions | New Guide

Mark Sullivan, family lawyer in North Carolina and military family law guru, advises that DFAS just revised the guide for attorneys in preparing MDPO's [military pension division orders].  Mark says that although there's NOTHING about clauses to use in getting SBP coverage, you'll find it invaluable in laying out pre-approved sample clauses for pension division, including the VERY TRICKY hypothetical clauses.

As for me . . . I will stick with the professionals who draft such orders. However, every family lawyer should have a working knowledge of how this is done since the military pension is usually the most valuable asset in a military family. Download your Download DFAS AttorneyGuidance.

Change of Schools | Cases are Fact-Specific

In Weiss v Gross, Docket No. 308804, Decided July 17, 2012 [Unpublished], the court of  appeals affirmed the trial court's denial of the mother's request to change the child's school district. The mother attempted to present the case as quite similar to the Pierron v Pierron factual situation. She claimed that the 25 mile move would not have any impact on the established custodial environment ("ECE"). [In Pierron, the change in school resulted in a 60 mile distance between the mother's house and the father's house, yet did not result in a change in the ECE.]

The COA, however, noted that the trial judge's decision (Judge David Hoort in the Ionia Family Court) recognized some disparities between this case and Pierron. The COA also examined this case in light of the published decision in Gagnon v Glowacki, 295 Mich App 557, __ NW2d __ (2012) and upheld the trial court's denial of the mother's motion to change schools.

Court Must Find Parent Capable of Working to Impute Income for Child Support Calculation

In an unpublished decision released by the court of appeals on July 17, 2012, that court held that the trial court must find that a parent is actually capable of working before the court may impute income to the parent for the purposes of calculating and assessing child support.

The mother suffered from mental illness as established by testimony of a psychologist at a hearing. She had not worked in 1995 and was not working. She was capable of teaching piano lessons, but had been deemed to be a threat to her own children. She does not receive SSI. She is totally dependent upon her parents for support.Nevertheless, the trial court imputed income to her of $12,500.

The court of appeals reversed and remanded, holding that before a court may impute income to a parent, the court must first find that the parent is capable of working.

Download Henry_v_Francis here.

Single Parenthood as a "Child Abuse Factor" Proposed in Wisconsin

Good grief! What's in the water in Wisconson? [Perhaps Rush Limbaugh is swimming?] A legislator proposes that single parenthood be, as a matter of law, a child abuse factor. The proposal calls statewide educational and public awareness campaigns and materials for the purpose of developing public awareness of the problems of child abuse and neglect. In promoting those campaigns and materials, the board shall emphasize nonmarital parenthood as a contributing factor to child abuse and neglect.

You may read the proposed legislation and news article here: GOP State Senator Introduces Bill To Brand Single Parenthood As Child Abuse Factor, on mediaite.com.

More than Two Legal Parents for a Child?

Most states, including Michigan, do not permit a child to have more than two legal parents. However, recognizing the growing number of alternative families, in rent years, Delaware and the District of Columbia have passed laws that allow for third “de facto parents.” De facto parents have the same rights and responsibilities toward their children as adoptive parents.

Additionally, over the last decade several states, including Oregon and Massachusetts, have also recognized three legal parents in a handful of cases.

Pending legislation in California would allow judges to recognize more than two legal parents for a given child, opening the door for alternative families to seek legal recognition of their relationships. Mark Leno, the state senator who sponsored the bill, says that “There are literally scores of different families and circumstances.” The bill would require a best interests of the child hearing before any order extending parental rights to anyone other than the legal parent or legal parents.

You may read Measure Opens Door to Three Parents, or Four here. Byline: Ian Lovett, Published
July 13, 2012

Other articles on alternative families may be read here on this blog.

Bankruptcy & Effect of Split Custody on Size of "Family Unit"

A hat tip to Robert L. Baum, Family Lawyer from Rockville, Md. who says:

There was an interesting case out of the US 4th Circuit Court of Appeals yesterday.  In a case of first impression, a divided court held that when custody of children is divided, that under the bankruptcy code the family unit is to be defined by taking the percentage of time each child spends with the parent, rather than accepting the IRS definition that if the child spends more than half the overnights with a parent then the child is considered part of that parent's household. 

The dissent warned that as a result of the decision,

Penn State Tragedy | Who Knew What & When | Failure to Protect

An independent investigation of the Jerry Sandusky child sexual abuse scandal that rocked the university last fall has just been released. According to the 267 page report, for more than a decade, the most senior officials at Penn State University failed  to take any steps to protect the children victimized by Jerry Sandusky, Joe Paterno's longtime head assistant football coach. 

Louis J. Freeh, the former federal judge and director of the F.B.I. who oversaw the investigation said: “Our most saddening and sobering finding is the total disregard for the safety and welfare of Sandusky’s child victims.”  * * * “The most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized.”

Episcopal Church Approves Official Liturgy for Blessing Same-sex Unions

The Episcopal Church on Tuesday approved an official liturgy for blessing same-sex unions, enabling priests who have the approval of their bishops to bestow the church’s blessing on gay couples whether they live in a state where same-sex marriage is legal or not. The official liturgy, called “The Witnessing and Blessing of a Lifelong Covenant” is as follows:

Trial Court may Modify Federal Dependency Exemption in a Prior Judgment

The Michigan Court of Appeals decided Clarke v Clarke, 297 Mich App 172 (2012) on June 26, 2012. In this decision, despite the fact that the tax exemption had been agreed to be alternated between the parties in odd and even numbered years, the court of appeals makes clear that the tax exemption is related to the child support and can be modified by the trial court.

IRS Publication 501 (a downloadable PDF file) makes clear that to be entitled to the tax exemption according to the federal tax code, a parent must have custody of the child for more than one half of the year, and it was this requirement that was the rationale for the Clarke panel’s decision. For the rules regarding the exemption, see IRS Publ. 501 at Table 5. "Overview of the Rules for Claiming an Exemption for a Dependent." [Page 12]

Wedding Ring: Marital Property or Separate Property?

In a listserv discussion among colleagues, the topic of whether a wedding ring is "marital property" and the value should be divided between the parties, it was obvious that courts in the 50 states deal with in different ways with this issue.

Mark Johnson Roberts, family lawyer in Portland, Oregon graciously has shared a published decision from Oregon holding that the wedding ring is a gift to the wife--intended for her own use and enjoyment--and thus is her separate property.

In the Oregon appellate court, Wife contended that the trial court erred in treating her wedding ring, valued at $8,320, as a marital asset. She asserted that the ring should be treated either as her premarital asset or that, because Husband gave her the ring for her sole use and enjoyment, it was her separate property. The appellate court found Wife's argument persuasive and that Wife, as a result,  rebutted the presumption of equal contribution that would make the ring marital property. Husband's argument was a fence-straddling one: he contended that he gave the ring to Wife "in contemplation of marriage" and also that the ring "was acquired during the marriage."

Courts Should Not be Required to Micromanage Custody Issues

An unpublished decision released by the Michigan Court of Appeals on July 3, 2012 reveals how some parents expect family courts to micromanage their custody and parenting time issues. This case has parallels with other cases I've had in my office and clearly illustrates the type of extensive and painful post-judgment actions parents may take--legal actions that have the potential to alienate or otherwise harm the children. Why should parents expect the courts to micromanage their post-judgment legal issues in regard to parenting time and custody in the absence of Vodvarka standards? In the end, Dad was award expanded parenting time. One can only conclude it was because of Mom's contrary behavior.

Contempt proceedings? Oh yes. BF was, per an agreed order, to move from the mother's residence. Now how effective was that when his move was to a camper in the back yard and he was still present in the home at breakfast and while and after the children went to bed? [Been there, seen that . . . a 100-foot electrical cord from the mother's house to a camper in the driveway . . . when that man had a no-contact order so that he was prevented from being in the presence of the children.]

Read it here: Klaas v Klass

How SCRA Protects Servicemembers from Foreclosures & Civil Suits

Not too long ago, I wrote a blog post about a mortgage foreclosure reported on NPR | All things Considered about a foreclosure on the home of Capt. Mike Clauer who was then serving in Iraq as company commander of an Army National Guard unit assigned to escort convoys. His home was put in foreclosure because of unpaid homeowner association dues.

Mark Sullivan, who literally wrote the book, The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families, Second EditionThe Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families, Second Edition, offers this advice to servicemembers and their families about how SCRA--the Servicemembers Civil Relief Act--provides protection for those who are serving our country and are faced with mortgage foreclosures: Mark Sullivan says:

Subpoena AT&T Records

Thanks to my friends Elizabeth Sadowski of Rochester Hills, Michigan and Marshal Willick of Las Vegas, Nevada for this helpful link to an online request by subpoena for AT&T records.

See:    https://contact.bellsouth.com/subpoena/