Family Law Appellate Case Summaries
Paternity Standing and Full Faith and Credit
Pecoraro v Rostagno-Wallat, __ Mich App __ (1/18/2011), Docket No. 293355
Holding: The Court found that the trial court erred by finding that plaintiff-Pecoraro had standing under the Michigan Paternity Act (MPA) to establish paternity of a child born to Defendant Rostagno-Wallat and her spouse Defendant Wallat during their marriage. Further, the Court held that the trial court erred in concluding that it was constitutionally required to give full faith and credit to the New York order of filiation issued by the court where it concluded it lacked personal jurisdiction over Wallat, a necessary party to the proceedings. The trial court's opinion and order in favor of plaintiff was reversed.
Facts: The Wallats appealed an order issued by the trial court which enforced an order of filiation issued by a New York court declaring plaintiff to be the father of a child conceived and born to Rostagno-Wallat during her marriage to Wallat. The Wallats have been married to each other since June 4, 1994 and at all times pertinent to this action have resided in Michigan. Two children were born during their marriage in 1999 and 2002 and the birth certificates of both children identify Wallat as the father. Rostagno-Wallat and plaintiff attended law school together in Michigan. An intimate relationship between Rostagno-Wallat and Pecoraro began in Michigan and continued on and off after Pecoraro returned to New York in 1998. Rostagno-Wallat informed plaintiff that he was the biological father of the child born in 2002, which was confirmed by DNA. In April 2005, Rostagno-Wallat and plaintiff ended their relationship and litigation commenced. Plaintiff filed a Complaint for Paternity against Rostagno-Wallat in which he sought enforcement of the New York order of filiation. In July 2008, Wallat filed a complaint for declaratory judgment against Rostagno-Wallat and plaintiff. In this action, Wallat sought a determination that he is the legal father of the child.
Analysis: The court agreed with the Wallats' argument that the trial court erred by finding that plaintiff had standing under the MPA. The court also agreed that the trial court erred in concluding that it was constitutionally required to give full faith and credit to the New York order of filiation issued by the New York court. In Michigan, a child conceived and born during a marriage is legally presumed the legitimate child of that marriage and the mother's husband is the child's father as a matter of law. A third party may not rebut this legal presumption unless there first exists a judicial determination arising from a proceeding between the husband and the wife that declares the child is not the product of the marriage. Because Rostagno-Wallat and Wallat have not asked a court to declare that the child was born out of wedlock, plaintiff lacked standing to claim paternity under the MPA. The court also held that plaintiff could not use the CCA to obtain a determination that he is the father under the MPA. Whether the putative father would be considered a natural or biological parent under the CCA is irrelevant unless he can first establish paternity under the MPA. Thus, the court rejected his claim under the CCA. The court was not persuaded that the New York court order should be honored because in arguing the merits of the underlying claim, Rostagno-Wallat protected the interests of Wallat. The court held that the interests of Rostagno-Wallat, the mother, were not consistent with the interests and rights of Wallat, the legal father. Rostagno-Wallat's parental rights as mother were never at risk in this litigation. More significant, however, was the notion that a judgment issued in a matter that does not include a necessary party has no effect. As a result, the courts of the state of Michigan were not obliged to give the New York order of filiation full faith and credit.
Residency Requirement for Divorce Filing
Kar v Nanda, ____ Mich App ____ (1/13/2011), Docket no. 292754
Holding: The Court affirmed the trial court’s order denying defendant’s motion to dismiss for lack of subject matter jurisdiction where defendant argued that neither party met the 180-day residency requirement. The Court held that the statute requires “a place of abode accompanied with the intention to remain”, but does not require an intention to remain permanently and indefinitely.
Facts: Plaintiff and defendant are citizens of India and were married there in 2007. In 2009, while living in Georgia, plaintiff filed a divorce complaint in Washtenaw County. Plaintiff travels for work and doesn’t maintain one address. Defendant lived in Ann Arbor at the time of the filing, but she denies that she is a “resident” because she plans to return to India when she finishes graduate school. Her temporary student visa expires in 2012. Defendant filed a motion to dismiss for lack of subject matter jurisdiction because neither party meets the 180-day residency requirement. The trial court denied the motion finding that an intent to maintain residency in the future is not part of the residency requirement.
Analysis: Plaintiff argued the residency statute, MCL 552.9(1), simply requires a party be physically present in the state for 180 days before filing for divorce. Defendant argued that in addition to physical presence, a party must satisfy the legal definition of residence, which requires an intent to remain permanently or indefinitely. According to the Court, the meaning of “resided” as used in MCL 552.9(1) is an issue of statutory interpretation. Much of the case law has equated “resided” with residence and domicile, both of which require an intent to remain. Although intent is a key factor under the statute, the Court disagreed with defendant’s position that it must be an intent to remain permanently or indefinitely and the courts have never held as such.
Spousal Support Modification and Reconsideration Standard
Luckow v Luckow, ____ Mich App ____ (1/27/2011), Docket No. 294398
Holding: The Court of Appeals reversed the trial court’s order granting defendant’s motion for reconsideration regarding a request to increase spousal support.
Facts: The parties were divorced in 2003 and defendant was awarded modifiable spousal support. Subsequently, plaintiff moved to reduce his support obligation and the parties stipulated to binding arbitration. The arbitrator recommended support be abated to zero but reserving any future support obligation for future adjudication. Plaintiff died before the hearing on his motion to adopt the arbitrator’s decision and his estate was substituted as a party. The trial court, Judge Skutt, adopted the arbitration award. Two weeks later, defendant filed a motion to increase support, which was denied. Defendant filed motion for reconsideration, which was granted by the successor judge, Cholack. On appeal, plaintiff argued Judge Cholack erred by granting tje motion for reconsideration.
Analysis: MCL 552.28 permits modification of spousal support awards, however the moving party must establish new facts or changed circumstances. Further, spousal support may continue, be modified or implemented for the first time following the payer spouse’s death. In a motion for reconsideration, the moving party must establish that the court made a palpable error and that a different result would have occurred.
Here, Judge Skutt found a change in circumstances and recognized that spousal support can be modified and collected against plaintiff’s estate. However, he declined to increase the support amount based on general principles of equity, specifically that he could not reconcile abating support during the payer’s life when he earned an income, with raising his obligation after his death when his estate earns no income. Judge Cholack found palable error when he read the judge’s decision to mean once support is abated to zero it could not be increased. The Court of Appeals found this was an inaccurate reading of the judge’s opinion. Further, the Court found that any error in the judge’s consideration of general principles of equity would be a mere difference in opinion that does not constitute palpable error. Finding no palpable error in Judge Skutt’s decision, Judge Cholack’s decision granting defendant’s motion for reconsideration was reversed.
Attorney Fees Following Objections to FOC Recommendation
Gordon v Gordon, COA Docket no. 294910, (1/13/2011); unpublished
Holding: The Court affirmed the trial court’s order requiring plaintiff to pay defendant’s attorneys fees in connection with her objections to a referee’s recommendation.
Facts: Defendant filed a motion to modify his child and spousal support objigations in connection with a divorce judgment entered several months earlier based on a substantial reduction of his income. The FOC referee, after taking evidence, recommended a reduction and plaintiff objected asserting that defendant was falsifying his income and failed to produce any 2008 tax returns. The trial court indicated it would consider only new evidence that would cast doubt on the referee’s findings and if plaintiff failed to support her objections, the court would consider defendant’s request for attorney fees. Prior to filing objections, defendant produced his 2008 tax returns. At the evidentiary hearing, the evidence supported the referee’s findings and plaintiff presented no new evidence to rebut those findings. The trial court adopted the referee’s recommendation and awarded defendant $7,272 as attorney fees and costs.
Analysis: The court rule, MCR 3.215(E)(4), permits judicial review of a referee hearing, but the objection must include a statement of the findings or application of law to which an objection is made. A frivolous objection is subject to costs and attorney fees. Here, plaintiff’s objections were frivolous because they were without reasonable basis in fact or law. Plaintiff was provided with the 2008 tax returns before the evidentiary hearing and the evidence offered no support for plaintiff’s contention that defendant was falsifying his income. The Court noted that plaintiff failed to raise her strongest possible argument for reversing a finding of frivolousness; that she was entitled to urge the court to invoke its equitable powers to deviate upward from the child support formula in recognition of defendant’s advantages in family connections, assets and income-generating potential.
Changing Temporary Custody
Lyman v Bellomo, COA Docket no. 294733, (12/28/2010); unpublished
Relying on Thompson v Thompson, 261 Mich App 353 (2004), the Court of Appeals held a party moving to modify custody provided in a temporary or interim order (where the order was entered without a finding on the best interest factors) need not show change of circumstances or proper cause before the court may consider a change in custody.
Note: All court decisions may be accessed at the Court of Appeals web site at: http://coa.courts.mi.gov/resources/opinions.htm