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Recent Appellate Family Law Decisions

MPLP Summer 2008 Family Law Section Newsletter Article

Issue 36, Summer 2008





Testimony of minor child:

Surman v Surman, _____ Mich App _____ (Docket no. 269725, 12/4/2007)

Holding: The court of appeals affirmed the award of custody to defendant-mother.  The Court also affirmed the trial court’s decision to permit the minor child to testify regarding allegations 0f abuse between the child and plaintiff-father. 

Summary: First, the court of appeals disagreed with plaintiff’s argument that it was improper for the trial court to permit the minor child to testify.  The trial court properly questioned the child, who was 12 at the time, regarding his comprehension of truthfulness.  Further, the court excluded the child’s testimony regarding parental preference, which must be solicited in an in camera interview.  However, the child’s testimony as to other issues, such as abuse and mistreatment, must be presented in court.  Here, defendant-mother alleged that plaintiff abused the child so it was proper for the court to permit the child’s testimony.

The court of appeals also disagreed with plaintiff’s argument that it was improper for the trial court to permit the child’s therapist to testify as an expert witness.  The Court held that the qualifications of an expert and the admissibility of the expert’s testimony are within the trial court’s discretion.  Here, the trial court complied with its gate-keeping function under MRE 702 by extensively questioning the expert regarding her qualifications and her ability to testify on the specific issues regarding the child in this case.

Full Text Opinion

100 mile rule – calculation of miles:


Bowers v Bowers, ___ Mich App ___ (Docket no. 274377, 3/25/08)


Holding:  The court of appeals affirmed the trial court’s decision that plaintiff’s move did not exceed the 100-mile limit of MCL 722.31 and therefore he did not need permission to move.  The 100’mile limitation refers to radial miles (the distance between two points measured on a straight line) rather than road miles (“as the crow flies”).


Summary: The court of appeals noted that although no court has examined the meaning of “100 miles,” in Lash v Traverse City, the Supreme Court examined an analogous provision in MCL 15.602.  There, the court found that the term “20 miles” in that statute was not ambiguous as “mile” is a measurement of a distance of 5,280 feet.  Here, the court applied the same analysis and found that had the legislature intended road miles, it could have said so.  


Parenting time modification:


Powery v Wells, ___ Mich App ___ (Docket no. 280622, 4/8/08)


Holding: The court of appeals affirmed the trial court’s determination that where a change in parenting time results in a change in the established custodial environment, the best interest factors must be reviewed before a modification

Here, plaintiff argued her move was less than 100 miles and thus insufficient to constitute a change of circumstances warranting an evidentiary hearing.  The court disagreed.  While plaintiff contended the move only required a modification of parenting time, the court found that if she moved, one of the parents would become a “weekend parent,” amounting to a change in the custodial environment.  It was proper for the court to conduct an evidentiary hearing to review the best interest factors.


Referee review of best interest factors:


Rivette v Rose-Molina, ___ Mich App ___ (Docket no. 280922, 3/27/08)


Holding: The court of appeals reversed the trial court’s order denying defendant’s petition to change custody where both the referee and the trail court failed to consider the best interest factors.

Summary: The court noted that although case law expressly requires circuit courts to analyze the best interest factors in determining custody, the law regarding referee hearings does not address this issue.  However, there is nothing in the law to suggest that a referee hearing absolves the referee from such an examination.  If it’s required in the circuit court, likewise, a referee’s recommendation – which the court may uphold without independent findings – should include a consideration of the best interest factors.

Placement of child during adoption:

In re Zimmerman, ___ Mich App ___ (Docket no. 279696, 1/2/08)

Holding: In an issue of first impression regarding how custody should be decided in situations under the Adoption Code where the mother does not release her parental rights and the petition to terminate the father’s parental rights is denied, the Court of Appeals rejected petitioner-mother’s argument that a trial court is without authority to grant custody to a putative father unless MCL 710.39(3) applies.  Here, the trial court did not err in granting immediate custody of the child to the respondent-father (Byron) once it completed its best interests determination under MCL 710.39(1) in his favor.

Summary: The child was born out of wedlock and immediately placed in the home of the petitioners-prospective adoptive parents. They filed a petition for adoption, and the petitioner-mother filed a petition to terminate Byron’s parental rights. She indicated she planned to voluntarily release her parental rights to the child if the trial court granted her petition to terminate Byron’s parental rights. However, she intended to seek custody if Byron’s parental rights were not terminated. In reviewing the trial court’s best interest analysis, the Court of Appeals agreed the trial court erred in weighing the permanence of the family unit in Byron’s favor, it concluded the trial court did not clearly err in reviewing the balance of the best interest factors.  Thus, the Court of Appeals affirmed the trial court’s order denying the petition to terminate Byron’s parental rights.

The Court also held the trial court did not err in deciding custody of the child should be granted on a temporary basis to Byron until there is a further determination of the child’s best interests under the Child Custody Act.  In so ruling, the Court rejected petitioner-mother’s argument that the adoption code only allows a grant of custody to a putative father under MCL 710.39(3), which is limited to cases where the mother’s parental rights have been terminated. Full Text Opinion

Note: The court of appeals decision was recently vacated in part by the Supreme Court. The part of the opinion that was vacated had to do with the ruling that the trial court could award custody to the father at the Section 39 hearing.  Instead, the Supreme Court said it was okay for the trial court to temporarily place the child with the father after the trial court decided not to terminate his parental rights, but the custody decision cannot be addressed until there is a hearing that compares the mother and father under the best interests factors.

Termination of parental rights and immigration status:

In re Diaz Orozco, ___ Mich App ___ (Docket no. 279461, 5/13/08)

Holding: The court held when the state deliberately takes action with the purpose of "virtually assuring the creation of a ground for termination of parental rights" and then proceeds to seek termination on that very ground, the state violates the due process rights of the parent.

Summary:  Since the evidence showed termination of the respondents-parents' parental rights would harm the children and they would lose all ties to their native language and culture, the trial court erred by finding termination of the parents' parental rights were not clearly contrary to the children's best interests. Further, the trial court erred by exercising continuing jurisdiction over the children while their parents were deported, constituting an improper de facto termination of their parental rights.  Here, all three parents are Guatemalan citizens who were illegally residing in this country.  Before several issues regarding DHS services could be remedied, respondents were detained by ICE officials and were deported. It was evident from the record the DHS, itself, reported respondents to ICE. The court held under the unique and particular facts of the case, the trial court's continued exercise of jurisdiction over the children was unconstitutional. The court reversed the termination of respondents' parental rights and the trial court's exercise of jurisdiction over the minor children and ordered DHS to take immediate steps to reunite the children with respondents in.  Full Text Opinion

6th Circuit Hague Convention grave risk of harm:

Simcox v Simcox, 511 F.3d 594, C.A.6 (Ohio), 2007

Holding: In this action under the Hague Convention and ICARA, the 6th Circuit held that the district court erred by ordering defendant-mother to return to Mexico with two of her four children residing with her in Ohio and should have declined to order a return based on the grave risk of harm standard. 

Summary: Here, defendant met her burden of establishing by clear and convincing evidence a grave risk of harm due to serous abuse to both defendant and the children by plaintiff-father.  The district court conditioned the return on certain “undertakings” to ameliorate the risk of harm to the children.  However, the court found such undertakings problematic particularly requiring defendant-mother to return to Mexico.  Further, the court found that the district court improperly interpreted article 13b of the convention which permits a court to decline to order return if such a return would permit grave risk of harm to the children.  Here, there was evidence of repeated physical and psychological abuse that was not sporadic or isolated.  The court’s decision reversing the court’s order to return comports with the Convention purposes, which was never intended to be used as a vehicle to return children to abusive situations.  Here, the trial court’s undertaking to ameliorate the risk was insufficient.  Full Text Opinion


Jurisdiction and 10-day residency:

Berger v Berger, ___ Mich App ___ (Docket no. 279025, 1/31/08)

Holding: In this divorce action, the trial court properly found the plaintiff-wife satisfied the 10-day jurisdictional residency requirement of MCL 552.9(1) despite her temporary absence and held defendant's argument requiring her continuing presence in the county for 10 days immediately preceding filing for divorce was without merit.


Summary: The statute's plain language requires only plaintiff to have established her residence for the "10 days immediately preceding the filing of the complaint." Once plaintiff established her residence and intended for the county to be her residence, her temporary absence did not destroy it. In Leader, the court determined on the basis of the plaintiff's intent that her residence remained in Michigan even though she lived in Kentucky for 4 months during the 180 days immediately preceding her filing in Michigan. For many purposes, residence must be considered in light of a person's intent. Presence, abode, property ownership, and other facts are often considered, yet intent is the key factor. The Leader case established two rules applicable here--determining residence or domicile requires a multi-factor analysis, but the preeminent factor is the person's intent, and an established domicile is not destroyed by a temporary absence where the person has no intention of changing his/her domicile. The trial court correctly found plaintiff established the county as her residence and she "resided in the county in which the complaint" was filed for 10 days immediately preceding the filing of the complaint, even though she slept 1 night in another city during the 10-day period. Thus, the trial court correctly held plaintiff satisfied the 10-day jurisdictional requirement. Full Text Opinion


Alimony and definition of cohabitation:


Smith v Smith, ___ Mich App ___ (Docket no. 273547, 3/18/08)


Holding: Plaintiff filed a motion to terminate the prior order for spousal support, which terminated if defendant cohabitated with an unrelated male.  The trial court did not err in finding that the parties were not cohabitating and it properly denied plaintiff’s request to terminate spousal support on that basis.


Summary:  The court of appeals approved of the trial court’s consideration of a number of factors to determine whether defendant was cohabitating.  The trial court relied on an Ohio court decision, which considered three elements: actual living together, of a sustained duration and shared expenses.  In addition, the trial court considered the following factors: intent; held out as living together; assumed obligations, sexual relationship; joint accounts; economically interdependency; and whether spousal support subsidized the alleged cohabitation.

QDRO and surviving spouse benefits:     

Thornton v Thornton, ___ Mich App ___ (Docket no. 270931, 1/3/08)

Holding: [This opinion was previously released as an unpublished opinion on 10/23/07.] The trial court improperly modified the division of property by amending the QDRO to eliminate the plaintiff-wife’s survivor benefit and erred when it modified her award of spousal support without adequate record evidence and definite factual findings.  The case was remanded.

Summary: Plaintiff argued the QDRO was essentially part of the judgment and thus, the trial court was without the authority to modify it more than 12 years after it was entered. After a hearing on August 26, 1993, the parties agreed to the entry of a divorce judgment. Each party and their attorneys approved the judgment, which specifically provided plaintiff would receive 50 percent of defendant’s monthly-accrued benefit under his pension during the term of the marriage as set forth in a QDRO. The QDRO was also approved by defendant’s attorney and it clarified the parties’ mutual intent to provide plaintiff with a retirement payment that fairly represents what they have agreed to be her marital share of defendant’s benefit through the provisions of the QDRO. Based on the totality of these circumstances, the Court of Appeals held the parties intended the judgment and the QDRO to be read together as a comprehensive division of the marital estate. Thus, the division of property described in the judgment incorporated by reference the substantive provisions of the QDRO into the divorce judgment. The Court found the trial court’s reliance on Quade and Roth for the proposition the QDRO could not provide for a surviving spouse benefit was misplaced. Since the case involved a contemporaneously executed QDRO incorporated into the divorce judgment, its provisions must be treated as part of the settlement. Since the QDRO addressed the division of marital property, the trial court was without the authority to modify those provisions absent fraud, duress, or mutual mistake.         Full Text Opinion


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