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Summer 2005 Developments in Family Law

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Issue 28, Summer 2005

Recent Case Developments in Family Law

by Rebecca Shiemke, MPLP Family Law Attorney and
Sheena Kapoor, MPLP Summer Law Clerk


Michigan Court of Appeals and the US District Courts have issued several decisions affecting family law. In particular, bankruptcy, fraud, constitutional, child support, and custody/parenting time issues have been addressed and are discussed below.


Mason v. Simmons, No. 257692, State of Michigan Court of Appeals (June 28, 2005) (published)

The defendant father challenged the trial court's failure to accord him the constitutional deference to which a natural parent in entitled in a custody dispute with a third party. Here, the trial court awarded defendant joint legal custody but ordered that physical custody remain with plaintiff, the child's half-sister, who had been the child's primary caregiver since the death of the child's mother and the Court of Appeals affirmed.

The trial court acknowledged that the presumption in favor of a fit parent outweighs the presumption in favor or a third party despite an established custodial environment with the third party. However, the court found that defendant was not a fit parent based on neglect where he failed to establish paternity for six years and neglected the child during the three years between her mother's death and the paternity adjudication. Therefore, defendant was not entitled to the presumption in favor of a fit parent.

In affirming, the Court of Appeals discussed Heltzel v Heltzel, 248 Mich App 1 (2001), which held that in a custody dispute between a fit parent and a third party custodian, the parental presumption must be given priority over the established custodial environment presumption absent clear and convincing evidence that the child's best interests favor placement with the third party. The Court of Appeals concluded that Heltzel did not govern this case and the trial court was correct by requiring defendant father to show by a preponderance of the evidence that it was in the child's best interests to change custody to defendant. The Court found that the Heltzel holding and rationale logically apply only if a parent is fit. Here, the evidence supports the finding that defendant was not entitled to the status of a "fit" parent.

Wong v. Lee, No. 2551616 and No. 255763, Michigan Court of Appeals (April 26, 2005) (unpublished)

The Court of Appeals affirmed the trial court's order modifying parenting time and also finding plaintiff failed to show proper cause or change of circumstances for a change of custody.

Plaintiff's argument that the trial court based its decision to modify parenting time solely on the confusing nature of the original order was without merit. The Court of Appeals noted that parenting time determinations are governed by the best interests of the child. Here, the trial court's finding that the confusing nature of the order negatively impacted the child and perpetuated the parties' inability to cooperate regarding the child stemmed from its consideration of the best interests of the child. Further, the court did not err in the resultant decrease of plaintiff's parenting time. The trial court was only required to grant parenting time in accordance with the child's best interests, which it did. The Court of Appeals noted that a reduction in parenting time was a risk the parties assumed by their continued failure to cooperate in parenting their child.

Dorr v. Dorr, No. 27385, Michigan Court of Appeals (December 14, 2004) (unpublished)

The Court of Appeals affirmed the trial court's order changing custody from joint to sole custody with plaintiff.

The Court of Appeals affirmed that a party must show just cause or a change of circumstances to support a request to modify a custody order. The standard requires that a party show more than normal life changes that have had or will have an effect on the child. Further, the change of circumstances must have occurred since entry of the previous custody order. Here, defendant's unwillingness to provide for one child's special needs, his violence and abuse toward plaintiff in front of the children, his move which affected the children's school and the parties' inability to agree on the children's fundamental needs were changes that significantly affected the children. Plaintiff had met her burden.

Defendant next argued that the trial court erred by not holding a de novo hearing and instead relying on the record of the referee hearing. The Court of Appeals noted that MCR 3.215(F)(2) permits the parties to agree to limit de novo review to a review of the referee hearing. Here, defendant did agree and he was afforded an appropriate de novo review.


Gehrke v. Gehrke, No. 253506, State of Michigan Court of Appeals (May 10, 2005) (published)

The Court of Appeals affirmed the trial court's decision not to apply the shared economic responsibility formula (SERF) or the retroactive parenting time abatement in defendant father's motion to modify child support.

In a consent judgment of divorce, the parties were awarded joint physical custody of their child. Defendant was ordered to pay family support, which included child support and spousal support. Defendant filed a motion to reduce support, requesting application of SERF and the parenting time abatement credit. The trial court denied defendant's request.

The Court of Appeals affirmed the trial court, finding that under the Michigan Child Support Guidelines Manual defendant was not entitled to an application of SERF because the support order was not issued concurrent with an initial custody/parenting time order or modification of a custody/parenting time order. Further, defendant was not entitled to the parenting time abatement because he is a custodial parent and only noncustodial parents may seek abatement.

Finally, defendant argued that the court's findings on three of the best interest factors, including factor (k), domestic violence, were against the great weight of the evidence. Again, the Court of Appeals dismissed this argument. As to the domestic violence factor, the Court noted that despite defendant's denial of any violence, plaintiff's testimony of violence and abuse were corroborated by her sister and the trial court's findings were not supported by the evidence.

People v. Tidik, No. 252504, State of Michigan Court of Appeals (May 31, 2005) (unpublished)

Defendant was convicted of felony nonsupport pursuant to MCL 750.165, and sentenced to 17 to 32 months in prison. The Court of Appeals affirmed his conviction but remanded for resentencing.

Defendant was ordered to pay $95 per week in child support in a 1995 divorce judgment. Defendant argued that the provision was a "recommendation" and he was only required to pay $200 per week as provided in an income withholding order.

The Court of Appeals found that Defendant was improperly sentenced to prison where the sentencing guidelines were zero to 17 months. In that case, the court is required to impose an "intermediate sanction," which means probation or any sentence other than prison, unless there is a compelling reason to issue a sentence to prison. The court failed to state a compelling reason to sentence defendant to prison and he is entitled to resentencing.

The Court, however, found no merit in defendant's argument that the lower child support in the income withholding order applied over the divorce judgment where there was clear language in the order that support as previously ordered continued. Further, the Court noted that the income withholding order merely identified the amount the defendant's employer was required to withhold from his income.

Finally, the Court of Appeals found that the felony nonsupport statute was not unconstitutionally vague because the statute clearly indicates what conduct is prohibited. The Court also confirmed that the statute is a strict liability statute and inability to pay is not a defense.


In re Ashby, No. 05-41123, US Bankruptcy Court of the Eastern District of Michigan (June 12, 2005) (published)

The Bankruptcy Court dealt with an automatic stay issue, involving a divorced couple. Kevin Ashby, Debtor, and ex-wife, Lisa Ashby, were divorced in November 2004. As a result of the divorce, Debtor was ordered to transfer his 401(k) interest to his ex-wife, through a Qualified Domestic Relations Order (QDRO). In January 2005, Debtor filed for bankruptcy, and ex-wife filed a motion to "exclude her claims from the automatic stay for relief." Essentially, Debtor's ex-wife "[sought] turnover of personal property awarded to her in the divorce judgment" and the interest from the 401(k). The Court held that the automatic stay would "not apply to property that [was] not property of the bankruptcy estate." Property awarded to Debtor's ex-wife in the divorce proceedings are not considered property of the bankruptcy estate. Thus, Debtor's ex-wife was entitled to recover personal property from Debtor. However, she was not permitted to bring a claim for conversion of her personal property, since such a claim would be a "prepetition debt subject to automatic stay."


Foreman v. Foreman, No. 250412, State of Michigan Court of Appeals (May 3, 2005) (published)

The Court of Appeals affirmed plaintiff's jury verdict award of $1,417,000 in a fraud case arising from divorce proceedings. Plaintiff alleged that defendant committed fraud regarding certain representations he made about a Ford dealership, marital home and vacation home during negotiation and mediation leading to the property settlement in the underlying divorce. Defendant appealed the trial court's denial of his motions to set aside the jury verdict.

Contrary to Defendant's argument, the Court of Appeals held that "Michigan law does recognize an independent cause of action for fraud where the fraud induced entry into a settlement agreement, which was incorporated, but not merged, into the final judgment of divorce." In reaching its decision, the Court cited Grace v Grace, 253 Mich App 357 (2002) and also noted, contrary to defendant's argument, that the Grace decision was not dicta. Where the settlement agreement is incorporated but not merged into the divorce judgment, it is a contract enforceable under contract remedies, including a claim of fraud.


Van Pelt v. Cordes, No. 4L04-CV-47, United Stated District Court for the Western District of Michigan Southern Division (April 28, 2005) (published)

The U.S. District Court granted plaintiff partial summary judgment against defendant police officers for violation of her 4th, 5th, and 14th Amendments rights based on unlawful search, seizure, arrest and use of force.

In this case, defendant police officers accompanied plaintiff's former live-in boyfriend to her apartment based on his statements that he still lived there and needed to retrieve property. In fact, plaintiff's former boyfriend was subject to a bond order not to have contact with plaintiff and no longer lived in her apartment. When the officers, arrived, plaintiff refused entry without a warrant. The officers entered when the former boyfriend gave "consent." Defendants assisted the former boyfriend in seizing property, which actually belonged to plaintiff. At one point, plaintiff and a defendant officer struggled over a vacuum cleaner that her former boyfriend claimed as his and she was arrested. Plaintiff was found not guilty in her criminal trial and the judge found that the officers' entry into her apartment was unlawful because it lacked valid consent. Plaintiff then filed this action.

The Court granted plaintiff summary judgment for several reasons. First, the Court found that defendants' entry into plaintiff's apartment was unlawful because they lacked a reasonable basis to conclude that the former boyfriend had authority to consent. The defendants received conflicting information yet chose to side with the former boyfriend without the benefit of a court order or any lawful authority.

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