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Recent Michigan Appelate Decisions

MPLP Summer 2007 Family Law Section Newsletter Article

                Issue 34, Summer 2007


Recent Michigan Appellate Decisions

Family Law Task Force

May 17, 2007


Koy v Koy, 2007 Mich. App. LEXIS 662, (March 13, 2007)

For Publication

Defendant, former husband, appealed the trial court’s entry of a default judgment of divorce against him and in favor of plaintiff former wife.  The husband argued that the trial court erred in denying his motion to set aside the default judgment of divorce. The court of appeals disagreed. The husband repeatedly failed to comply with numerous court orders. In one instance, the trial court held the husband in contempt of court for failure to return a vehicle to the wife as ordered. When the husband finally did return the vehicle, he did so without the keys. The trial court also ordered the husband to answer interrogatories, which he never did. The trial court ultimately ordered the husband to pay a fine for each day the interrogatories were outstanding, and the husband failed to pay those sanctions. Thus, the trial court imposed increased levels of sanctions in attempts to compel the husband's involvement in the court proceedings. Despite the imposition of those increased sanctions, the husband continued to flout the court's orders. The husband also failed to appear at the hearing for entry of default, instead sending a note with his attorney stating that he was incarcerated, an assertion for which he offered no proof. Therefore, the entry of a default judgment was proper.  However, because the trial court failed to make findings of fact on the record regarding the property division, the issue was remanded with instructions to the court to make findings of fact to support its division of property.  Even in a default judgment, there must be appropriate findings to support the court’s decision.


Stevenson v Stevenson, COA # 272937 (March 20, 2007)

The trial court properly modified the custody order, awarded physical custody of the parties’ minor children to the defendant-wife and ordered plaintiff-father to pay support. Plaintiff contended the trial court erred in finding the parties did not have joint custody of the children. The previous order provided that the parties had joint physical custody of the children and that each parent had parenting time on alternate weeks. Although pursuant to the terms of the order, the parties had joint custody as a matter of law, the trial court found they did not exercise alternating weeks and plaintiff had less than 128 overnights with the children. Therefore, the parties did not “truly” have joint physical custody of the children. In fact, from January 1, 2006, to July 26, 2006, plaintiff had the children for 14½ overnights.  Defendant submitted a copy of her journal, in which she documented plaintiff’s parenting time. Defendant also admitted she denied plaintiff parenting time when he arrived to pick up the children and was intoxicated, or when he exhibited “dangerous behavior” in the children’s presence. The Court of Appeals held that the trial court’s finding that the parties did not “truly” have joint physical custody of the children was not against the great weight of the evidence and affirmed its decision.


People v Herzberg, COA #265546 (March 20, 2007)

In a criminal case, the Court of Appeals defined the meaning of “contact” within the context of the stalking statute.  Rejecting defendant’s argument the trial court erred in ruling a letter to his and the victim’s grown son with specific messages for the victim (defendant’s ex-wife) and a short message on the victim’s answering machine could constitute “contact” within the meaning of MCL 750.411h(1)(d), the court affirmed his stalking conviction. Defendant exhibited violent, physically abusive behavior during his marriage to the victim. She obtained a divorce and a PPO against him, which he repeatedly defied, resulting in his imprisonment. While incarcerated, he left the message on the victim’s answering machine and sent the letter, leading to the charge in this case. The court concluded the letter clearly contained a message defendant sought to communicate to the victim concerning his frustration with the PPO, and defendant tried to use his son to convey a threatening message. Further, the son accomplished this purpose when he delivered the entire letter to the victim. The trial court did not err in determining “any contact” could mean indirect contact, and defendant’s actions could constitute contact proscribed by the statute. In addition, the court rejected his claim he did not possess the necessary mens rea since the term “willful” referred to the harassing course of conduct and not the ultimate result.  The Court affirmed the trial court’s findings.


Fites v Frey, COA #273084 (February 20, 2007)

The trial court properly denied the defendant-father’s motion to change an existing child custody order granting sole physical custody of the parties’ minor son to the plaintiff-mother because defendant failed to establish proper cause or circumstances pursuant to Vodvarka v Grasmeyer, 259 Mich App 499(2003).  First, defendant argued plaintiff suffered from mental illness and substance abuse problems.  The Court found this insufficient because those conditions existed before entry of the custody order.  Second, defendant argued that changes in his circumstances support reevaluation.  The Court disagreed finding defendant’s changes nothing more than normal life changes.  Third, defendant argued plaintiff physically abused the child and submitted evidence of a child protective service investigation.  Again the Court disagreed finding the report was not sufficient to establish proper cause where no further actions were take by protective services.  Thus, the trial court was not authorized to revisit the existing custody order and engage in reconsideration of the statutory best interest factors and its decision was affirmed.


Stallworth v Stallworth, 2007 Mich. App. LEXIS 1010 (April 17, 2007)

For Publication

The trial court used an improper factor when imputing income to the defendant-husband and improperly relied on defendant’s reduced income capacity resulting from his past criminal activities. A trial court has the discretion to impute income when a parent voluntarily reduces or eliminates income or when it finds the parent has a voluntary unexercised ability earn. Although it was true defendant’s criminal actions were voluntary, there was no evidence he committed any crimes with the intent to reduce his income. Given the nature of the crimes, it could be inferred he was attempting to increase his income. Defendant’s criminal conviction bars him from earning a living in politics and his resignation from political office resulted in the involuntary reduction of his income. Defendant has been punished for his crimes. To now cite his criminal conviction as a voluntary lowering of his income in an effort to thwart child and spousal support was illogical and legally unprecedented and it was improper for the trial court to do so.  However, the court could rely on evidence presented by plaintiff that defendant’s lifestyle supported an income far greater than the one he claimed he earned, to determine defendant’s income. Accordingly, the Court vacated the support awards and remanded to the trial court for the purpose of recalculating. 



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