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Recent Case Developments in Family Law

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Recent Case Developments in Family Law
Issue 29, Fall 2005

Recent Case Developments in Family Law

by Rebecca Shiemke, MPLP Family Law Attorney


The Michigan Court of Appeals has issued several decisions affecting family law. In particular the court addressed securing child support through life insurance policies, agreements regarding the "100-mile rule," a change in child's residence as a change in circumstances and retroactivity of amendments to the paternity act. These cases are discussed below.


In re Estate of Lobaina, Court of Appeals Docket No. 260866, July 19, 2005, Published

Decedent and his former spouse entered into a divorce settlement that required both parties to name their minor child as a beneficiary of their life insurance policies. Decedent was ordered to pay child support for the minor children. Decedent named his second wife as beneficiary and when he died, Plaintiff filed a claim on behalf of the one minor child against his estate for the amount of the proceeds of his employer-provided life insurance.

The Court held that the child was entitled to the entire proceeds under the terms of the divorce judgment, concluding that such a provision is not inherently limited to securing the payment of future child support. The court noted that here, the judgment imposed the obligation on both parties without any indication that the purpose of the provision was merely to secure future child support.


Delamielleure v Belote, Court of Appeals Docket No. 254593, July 12, 2005, Published

The parties' divorce judgment included a provision stating the child's domicile shall be the defendant-wife's state of residence and the parties expressly waived the requirement that they comply with MCL 722.31, the "100-mile rule," regarding changes in residence. When defendant and her new husband informed the plaintiff they were going to move to Arkansas, he objected and filed a motion. The trial court granted the motion and struck the change of domicile provision from the judgment. After a hearing on defendant's request to change domicile, the trial court denied the request.

The Court of Appeals affirmed the trial court's decision, finding that the divorce judgment fails to comply with the statutory restriction on changing a child's residence found in MCL 722.31. First, the judgment states that the parties "waive" the requirement to comply with the statute. There is nothing in the statute that authorizes parties to waive compliance. Second, the parties' blanket consent to any change of residence is also contrary to the provisions of the statute, which requires the other parent to consent to "the residence change." Rather, the only consent that can be granted under the statute is consent to a specific, identifiable change of residence.

Sehlke v Vandermass, Court of Appeals, Docket No. 262346, July 27, 2005, Published

Plaintiff filed a petition to change custody based on Defendant's move approximately 140 miles away and the resulting reduction in plaintiff's parenting time. Plaintiff alleged that the change in residence was without his consent as required by the order and contrary to the statute, MCL 722.31. After a hearing, the trial court determined that defendant's unauthorized move constituted a change in circumstances and that a change in custody was in the child's best interests.

The Court of Appeals affirmed the trial court's decision and held that an unauthorized change in legal residence in excess of one hundred miles constitutes a change in circumstances sufficient to revisit custody. This decision (and MCL 722.31) effectively overrules Dehring v Dehring, 220 Mich App 163 (1996), which held an intrastate change of domicile does not constitute a sufficient change of circumstance to reopen the issue of custody. In Dehring, the paramount policy consideration was the custodial parent's ability to move. However, when the legislature enacted MCL 722.31, it determined that was no longer the paramount policy consideration and imposed restrictions on a parent's ability to change a child's residence more than 100 miles away.

The Court of Appeals noted that although an unauthorized change in residence is sufficient change in circumstances, the trial court must still determine whether a change in custody is in the child's best interests. Here, the Court agreed with defendant that the matter was decided prematurely without an opportunity for a Friend of the Court review or a separate evidentiary hearing after the determination there was a change in circumstance. The Court reversed the order to change custody and remanded for an evidentiary hearing.


McLaren v Miller, Court of Appeals, Docket No. 260868, October 13, 2005, Unpublished

Defendant appealed the trial court's decision in these consolidated paternity actions that defendant's support obligation commenced pre-complaint rather than back to the date the complaints were filed. Here, plaintiff filed her complaints under the paternity act prior to the October 1, 2004 amendment and within 6 years of the children's births.

In affirming the trial court's decision, the Court of Appeals held that the October 1, 2004 amendment of MCL 722.717(2) of the paternity act was prospective only and not retroactive. Before it was amended, MCL 722.717(2) provided that if a paternity action was commenced within 6 years of a child's birth, support could be retroactive to the date of the child's birth. As amended, the statute now provides that support is retroactive to the date the complaint was filed unless one of three circumstances exists, neither of which include filing within 6 years of birth. The Court refused to apply the 2004 amendment to these cases because it "significantly impacts both children's substantive right to support by altering the extent of any potential award" and because there was no express indication of retroactivity in the statute.

NOTE: To access these or any Michigan Court of Appeals decisions, go to:


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