Written on
January 10, 2008
by
David C. Sarnacki
The New York Times reports on the Vermont divorce court handling Garrido v. Krasnansky. The court ordered the husband to stop posting blog items about his wife and their crumbled marriage, possibly turning an ordinary divorce into a much broader battle over free speech on the Internet.
Abby Goodnough writes (excerpt):
The husband, William Krasnansky, posted what he calls a fictionalized account of the marriage on his blog late last year. His wife, Maria Garrido, complained to the judge overseeing their divorce, who ordered Mr. Krasnansky to take down “any and all Internet postings” about his wife and their marriage pending a hearing next month.
****
Ms. Ellwood says that the blog, at lookatmypugs.livejournal.com, constitutes harassment, and that it is typical in divorce cases for judges to bar harassment by either party.
But Ms. Schoenberg has countered that a defamation claim does not belong in family court — Mr. Smolla and several other scholars said the usual venue was civil court — and that, regardless, her client’s freedom of speech trumps his wife’s concerns.
Posted in Law: Cases/Statutes 
No Comments »
Written on
January 8, 2008
by
David C. Sarnacki
FindLaw explains how Britney Spears is highlighting principles of Family Law and child custody disputes. Joanna Grossman identifies and discusses three lessons:
Lesson #1: Courts, not Divorcing Parents, Ultimately Decide Custody
Lesson #2: Parental Behavior Matters in Custody Battles
Lesson #3: Britney: The Paparazzi Are Not the Only Ones Watching Your Every Move
Posted in Something Different 1 Comment »
Written on
January 7, 2008
by
David C. Sarnacki
The Michigan Court of Appeals is publishing its decision in Thornton v. Thronton (January 3, 2008, Case No. 270931). The per curiam decision held (excerpt):
In this domestic relations action, plaintiff appeals by leave granted two orders signed by
the trial court on May 23, 2006. The first order reduced plaintiff’s award of spousal support and
the second amended a qualified domestic relations order (QDRO) to eliminate plaintiff’s award
of a survivor benefit under defendant’s pension plan. We conclude that the trial court improperly
modified the division of property by amending the QDRO to eliminate plaintiff’s survivor
benefit and erred when it modified plaintiff’s award of spousal support without adequate record
evidence and definite factual findings. Therefore, we reverse the trial court’s opinion, vacate the
orders of May 23, 2006, and remand for further proceedings consistent with this opinion.
****
Because the parties incorporated the substantive provisions of the QDRO into their
judgment of divorce, we find the trial court’s reliance on Quade v Quade, 238 Mich App 222;
604 NW2d 778 (1999) and Roth v Roth, 201 Mich App 563; 506 NW2d 900 (1993) for the
proposition that the QDRO could not provide for a surviving spouse benefit to be misplaced.
Neither case dealt with a QDRO that was incorporated into the judgment by reference and
entered contemporaneously with the judgment.3 Instead, those cases addressed whether a QDRO
entered after the entry of a judgment of divorce could include awards of property that were either
precluded by the plain language of the judgment, see Roth, supra at 569, or not specifically
included within the judgment of divorce, see Quade, supra at 224-225. Because the present case
involves a contemporaneously executed QDRO that was incorporated into the judgment of
divorce, its provisions must be treated as part of the settlement.
Because 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. Quade, supra
at 226. Likewise, to the extent that defendant’s motion can be interpreted as a motion for relief
from judgment under MCR 2.612, we conclude that the motion was untimely and unreasonable.
See MCR 2.612(C)(2) and Roth, supra at 570. Therefore, the trial court erred when it entered an
order amending the QDRO to alter its substantive provisions.
****
An alimony award can be modified based upon a showing of new facts or changed
circumstances. Moore, supra at 654; MCL 552.28. In the present case, the trial court’s opinion
clearly indicated that the trial court found that there were changed circumstances sufficient to
warrant a modification of defendant’s spousal support obligation. However, evidence of the
changed circumstances must appear in the record. See Rapaport v Rapaport, 158 Mich App 741,
746; 405 NW2d 165 (1987). After review of the record, we conclude that there is inadequate
evidence of the parties’ financial status in the record to properly review the equity of the trial
court’s modification of the spousal support award. In such cases, it may be appropriate to
remand for the taking of “supplemental and definite proof.” Bailey v Bailey, 352 Mich 113, 118;
89 NW2d 500 (1958). Therefore, we vacate the trial court’s order modifying defendant’s
spousal support obligation and remand this matter to the trial court. On remand, the trial court
shall take evidence concerning the parties’ finances and make the necessary findings of fact.
After making its findings, the trial court shall issue a new order concerning whether to grant
defendant’s motion for a reduction in his spousal support obligation.
****
An adoptive parent may request adoption assistance, which can include a support
subsidy. See MCL 400.115f(b) and 400.115g(1). However, the subsidy is meant to be a
“payment for support of a child.” MCL 400.115f(v). Because the subsidy is meant for the
support of the child alone, it is not proper for a trial court to attribute this subsidy to the parent
when determining whether the parent is entitled to spousal support. Therefore, on remand, the
trial court shall not consider any adoption assistance currently received by plaintiff in
determining whether and to what extent it should grant defendant’s motion for modification of
his spousal support obligation.
Posted in Law: Cases/Statutes No Comments »
Written on
January 4, 2008
by
David C. Sarnacki
The Washington Post reports on the study published in Health Psychology that a happy marriage helps relieve a woman’s stress from work–but apparently not a man’s (excerpt):
Coming home to a loving spouse and a good marriage helps working women shake off the stress of the day, new research confirms.
Men, on the other hand, often drop their stress at the door when they come home, regardless of the state of their union, reported psychology researchers.
Posted in Relationships No Comments »
Written on
January 3, 2008
by
David C. Sarnacki
Ireland On-Line reveals the breakup of Peter Parker’s marriage to Mary Jane (excerpt):
In Spider-Man No. 545 the web-slinger agrees a deal with villain Mephisto, to protect his identity and spare his elderly Aunt May.
In return Spider-Man’s alter ego Peter Parker must turn his back on Mary-Jane and their history together - which has been erased from their memories.
The move, revealed when the comic book hit news stands on Friday has infuriated longterm fans who have invested decades in the series, reports the New York Post.
Posted in Something Different No Comments »
Written on
January 2, 2008
by
David C. Sarnacki
The Washington Post describes how divorces of same-sex marriages challenge the legal framework for divorce, including issues related to jurisdiction and venue, child custody, parenting time, alimony (spousal support), property division, retirement and taxation.
Dafna Linzer writes (excerpt):
. . . Heterosexual couples claim a tax deduction for alimony payments, but that benefit is not available to gay and lesbian spouses because the Internal Revenue Service does not recognize their marriages.
****
Retirement savings and pension plans, easily split for heterosexual couples divorcing, would have to be cashed out and would be heavily taxed for gay couples. Current tax law allows only $12,000 to be transferred from one gay spouse to another without being subject to a gift tax.
****
Andrew Koppelman, a law professor at Northwestern University, published a book in 2006, “Same Sex, Different States: When Same-Sex Marriages Cross State Lines.” Koppelman urged states that oppose same-sex marriage to agree at least to perform divorces. “You have to have a way for people to get out of these things — otherwise, you have multiple claims on the same property and no protections for people entering into new marriages. I think states that try to adopt these rules refusing to recognize the marriages just haven’t thought it through.”
Posted in Law: Cases/Statutes No Comments »
Written on
December 22, 2007
by
David C. Sarnacki
The California Supreme Court disqualified an attorney who used opposing counsel’s notes of a meeting with expert witnesses. In Rico v. Mitsubishi Motors Corporation, the court stated:
Here we consider what action is required of an attorney who receives privileged documents through inadvertence and whether the remedy of disqualification is appropriate. We conclude that, under the authority of State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644 (State Fund), an attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation. We affirm the disqualification order under the circumstances presented here.
****
Moreover, we agree with the Court of Appeal that, “when a writing is protected under the absolute attorney work product privilege, courts do not invade upon the attorney’s thought processes by evaluating the content of the writing. Once [it is apparent] that the writing contains an attorney’s impressions, conclusions, opinions, legal research or theories, the reading stops and the contents of the document for all practical purposes are off limits. In the same way, once the court determines that the writing is absolutely privileged, the inquiry ends. Courts do not make exceptions based on the content of the writing.” Thus, “regardless of its potential impeachment value, Yukevich’s personal notes should never have been subject to opposing counsel’s scrutiny and use.”
Posted in The Practice No Comments »
Written on
December 21, 2007
by
David C. Sarnacki
The Grand Rapids Press reports on the adopted man who found his birth mother at work.
Pat Shellenbarger writes (excerpt):
For more than two months, Steve Flaig eyed the woman running the cash register in the home improvement store where both worked, trying to decide how to tell her what he knew and she didn’t.
In early October, Flaig’s long search for his birth mother ended when he learned she was the woman he previously knew only as Chris, the head cashier at the Lowe’s Home Improvement Warehouse in Plainfield Township.
Posted in Something Different No Comments »
Written on
December 20, 2007
by
David C. Sarnacki
The Associated Press discusses the options of collaborative divorce and mediation.
David Crary writes (excerpt):
In contrast to mediation, in which divorcing couples entrust a resolution to a single neutral mediator, collaborative divorce involves the use of attorneys for each party, often joined by other expert consultants. But the lawyers, instead of sparring, pledge from the outset to work together in crafting an outcome that is fair to all.
“Most clients in a dispute are looking for an honorable peace, not war,” Boston lawyer David Hoffman wrote in recent op-ed for The Christian Science Monitor. . . .
****
The firm analyzed 199 of its recent divorce cases, and found that mediation, collaborative divorce and litigation all produced high rates of successful settlement. Mediation was by far the least expensive option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.
****
Mediation is another popular option for divorces . . . .
“At the heart of mediation is the belief that people can solve their own problems,” said Carl Schneider, a psychologist . . . .
Posted in Collaborative Divorce, Mediation/ADR No Comments »
Written on
December 18, 2007
by
David C. Sarnacki
The Maryland Daily Record addresses the concerns of traditional divorce attorneys about collaborative divorce. Caryn Tamber’s article gives voice to opponents who poo-poo Collaborative Divorce.
In considering the arguments, it is helpful to keep in mind that:
Not every case involves “a pair of good divorce attorneys.”
In court cases, attorneys may use litigation tactics that do harm to relationships in order to reach a settlement.
Certainly, collaborative divorce is not for everyone. And domestic violence, mental illness and substance abuse will pose tremendous problems, regardless of the process selected.
People can maintain their privacy in collaborative divorce while ensuring full disclosure and documentation of material facts.
In litigation, “people with secrets” lie and use the litigation process itself to hinder full disclosure and create expensive barriers to information.
Unlike other forms of alternative dispute resolution, collaborative divorce prevents litigation threats and activities as a means of coercion against the other party.
Posted in Collaborative Divorce No Comments »
Written on
December 11, 2007
by
David C. Sarnacki
The New York Times unwraps the gift within the act of giving.
Tara Parker-Pope writes (excerpt):
. . . [G]iving gifts is a surprisingly complex and important part of human interaction, helping to define relationships and strengthen bonds with family and friends. Indeed, psychologists say it is often the giver, rather than the recipient, who reaps the biggest psychological gains from a gift. . . .
****
But the biggest effect of gift giving may be on ourselves. Giving to others reinforces our feelings for them and makes us feel effective and caring, Dr. Langer said.
Posted in Relationships No Comments »
Written on
December 6, 2007
by
David C. Sarnacki
The Michigan Court of Appeals is publishing Surman v Surman (Case No. 276615, 12/4/2007), which addresses children as witnesses (excerpt):
While courts should seek to avoid, trial court may call child to testify in court about his or her allegations of abuse during child custody proceeding divorcing parents from being pushed to the center of their parents’ dispute by avoiding the taking of the child’s parental preference testimony in court. Based on this principle of protecting the child from undue stress, Joseph Surman argues that Nicholas should not have been called to testify in court regarding his allegations of abuse.
We disagree. First, Molloy II firmly established that the subject matter of the in camera
interview be strictly limited to determining the child’s preference. Second, neither case law nor
court rule precludes a trial court from taking testimony in court regarding issues other than the
child’s preference. Indeed, case law, including Burghdorff, Molloy II, and specifically,
Breneman, makes clear that a trial court must take testimony in open court on issues of abuse or mistreatment because to allow courts to discuss such matters during the in camera interview would constitute a due process violation. Stated differently, although courts should seek to avoid subjecting children to the distress and trauma resulting from testifying in court subject to cross examination, concerns over the child’s welfare are outweighed when balanced against the parent’s due process rights.
When dealing with issues such as abuse and mistreatment, the child will often be the only
witness, other than the allegedly abusive parent, with firsthand knowledge of the incident.33
Thus, testimony concerning a child’s allegations of abuse is clearly relevant to the trial court’s
custody determination.34 And, unlike when assessing testimony regarding the child’s personal preference on which parent the child would rather reside, when assessing testimony of abuse the trial court is called upon to make credibility determinations, weigh the evidence, and, most importantly, resolve factual conflicts, all of which must be supported by the great weight of the evidence and subject to this Court’s review.35 Accordingly, when necessary to facilitate a trial
court’s assessment of the child’s best interests, a trial court may call a child to testify in court
concerning his or her allegations of abuse during a child custody proceeding.
Joseph Surman also argues that the trial court should not have interviewed Nicholas in
court because he had been diagnosed with bipolar disorder and oppositional defiant disorder, and was taking medication and receiving psychological counseling. We disagree.
In Breneman, this Court, citing MRE 601,36 held that, “as a general rule an 11-year-old
child is competent to testify . . . unless the court finds after questioning a person that he does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and
understandably[.]”37 Here, the trial court “specifically questioned the child to determine his
competency and ability to tell the truth before it permitted him to testify.”38 Therefore, the trial
court complied with MRE 601 by assessing Nicholas’s competency on the record. Indeed, the trial court took additional safeguards to make sure the process was not coercive or threatening by soliciting the active participation of James Van Treese, PhD.
We conclude, in keeping with Breneman and Molloy II, that the trial court did not abuse
its discretion in permitting Nicholas to testify in court regarding his allegations of abuse against Joseph Surman.
Posted in Law: Cases/Statutes No Comments »
Written on
November 28, 2007
by
David C. Sarnacki
The New York Times rings up “two hours of inexplicable madness” with a report on the Niagara Falls judge who heard a cellphone ring in his courtroom. When no one fessed up, he played the “Go Directly to Jail, Do Not Pass Go” card.
Danny Hakim writes (excerpt):
On the morning of March 11, 2005, the judge, Robert M. Restaino, was presiding over a slate of domestic-violence cases when he heard a phone ring. According to the commission’s report, he told the roughly 70 people in the courtroom that “every single person is going to jail in this courtroom” unless the phone was turned over.
****
“This troubles me more than any of you people can understand,” Judge Restaino said, adding: “This person, whoever he or she may be, doesn’t have a whole lot of concern. Let’s see how much concern they have when they are sitting in the back there with all the rest of you. Ultimately, when you go back there to be booked, you’ve got to surrender what you got on you. One way or another, we’re going to get our hands on something.”
Posted in Something Different No Comments »
Written on
November 26, 2007
by
David C. Sarnacki
The Associated Press/Grand Rapids Press shows the abuse risk in cohabitation, including the abusive-boyfriend syndrome and the risk to children in nontraditional family structures.
David Crary writes (excerpt):
Among the findings:
*Children living in households with unrelated adults are nearly 50 times as likely to die of inflicted injuries as children living with two biological parents, according to a study of Missouri abuse reports published in the journal of the American Academy of Pediatrics in 2005.
*Children living in stepfamilies or with single parents are at higher risk of physical or sexual assault than children living with two biological or adoptive parents, according to several studies co-authored by David Finkelhor, director of the University of New Hampshire’s Crimes Against Children Research Center.
*Girls whose parents divorce are at significantly higher risk of sexual assault, whether they live with their mother or their father, according to research by Robin Wilson, a family law professor at Washington and Lee University.
Posted in Families/Children 1 Comment »
Written on
November 16, 2007
by
David C. Sarnacki
USA Today showed the power of love through the eyes of retired Justice Sandra Day O’Connor and her husband, who suffers from Alzheimer’s.
Joan Biskupic writes (excerpt):
“Mom was thrilled that Dad was relaxed and happy and comfortable living here and wasn’t complaining,” Scott [O’Connor] . . . .
****
Scott compared his father to “a teenager in love” and said, “For Mom to visit when he’s happy … visiting with his girlfriend, sitting on the porch swing holding hands,” was a relief after a painful period.
Posted in Relationships 13 Comments »
Written on
November 6, 2007
by
David C. Sarnacki
Divorce Online announced their support for collaborative divorce (excerpt):
. . . [F]amily law is different. Who is the winner and who the loser in an argument about what should happen to the family home, or in a dispute about the living arrangements for children? Many judges who regularly hear family cases would generally agree with – and express – the sentiment that if a family conflict reaches the courts, a fair outcome will result only in both parties feeling like losers.
****
So what are the alternatives to court? Negotiation and mediation have been around for a little while. But these alternatives, however useful and effective in their own right, share one disadvantage that can make them unsuitable for some people: the option of going to court is always there in the background, for one party or the other to think, ‘This is as far as I am willing to compromise, because I would do at least as well as this if I went to court.’ And if both parties think this, then the negotiations will hit an impasse.
This is where a new approach, Collaborative Family Law, comes into its own. The unique feature of the collaborative process is a formal ‘participation agreement’, which prevents the parties and the lawyers from relying on the fall-back option of the court if agreement is not reached. In effect, if the collaborative process fails, then the parties have to instruct new lawyers and start from scratch if they want to go to court. This ‘stick’ motivates everybody involved – including the lawyers – to do everything reasonable to reach agreement. There is also the ‘carrot’ of the parties having far more control over the outcome of their dispute than if they were to ask a judge to make a decision for them.
Posted in Collaborative Divorce 2 Comments »
Written on
November 2, 2007
by
David C. Sarnacki
James W. McElhaney highlights how to make a losing argument. He discusses seven methods:
Argue with the judge.
Bury your argument in clutter.
Misstate the facts.
Base your argument on obscure technicalities.
Read your argument.
Push a good point too far.
Give in to sudden inspiration.
Posted in Persuasion/Advocacy No Comments »
Written on
November 1, 2007
by
David C. Sarnacki
The News Journal summarizes wooing to win [”The Art of Woo: Using Strategic Persuasion to Sell Your Ideas” by Wharton professor G. Richard Shell and management consultant Mario Moussa] (excerpt):
The word “woo,” the authors note, has many meanings, but all of them relate to focusing on the person you are trying to persuade more than on your own needs and fears. . . .
“The Art of Woo” presents a simple, four-step approach to the idea-selling process. First, persuaders need to polish their ideas and survey the social networks that will lead them to decision makers. . . .
The second stage of the Woo process is confronting what Shell and Moussa call “the five barriers” — the five most common obstacles that can sink ideas before they get started. These include unreceptive beliefs, conflicting interests, negative relationships, a lack of credibility and failing to adjust one’s communication mode to suit a particular audience or situation. . . .
The third stage is to pitch your idea in a compelling way [for example, short, punchy presentations showing exactly what problem your idea addresses, how your idea will solve it and why your idea is better than both the status quo and available alternatives]. . . .
The final stage of Woo is to secure both individual and organizational commitments. . . . “Research shows that in most organizations, a minimum of eight people will need to sign off on even simple ideas.”
Posted in Persuasion/Advocacy No Comments »
Written on
October 31, 2007
by
David C. Sarnacki
ClickDocs announces the launch of a new legal forum encouraging use of the collaborative process for complex ‘big money’ divorces (excerpt):
The founders of the Central London Collaborative Forum believe that collaborative law can help avoid the cost and acrimony evidenced in many high profile divorce proceedings including those involving couples such as the McCartneys and the Charmans.
****
Jane Simpson, head of family law at Manches, says: “In collaborative divorce, couples who have decided to end their marriage work with a team of professionals to avoid the sometimes arbitrary and uncertain outcomes of Court proceedings and to achieve a settlement that best meets their specific needs and those of their children.
“Collaborative practice focuses on finding an agreed solution through a series of round table meetings between the couple and their lawyers. Where appropriate other professionals are brought in to help the process, such as accountants, pension advisers and, very importantly, family consultants.”
Posted in Collaborative Divorce No Comments »
Written on
October 24, 2007
by
David C. Sarnacki
American Chronicle tries to establish the mind set for persuasion.
Pradeep Aggarwal writes (excerpt):
Basic Rule of persuasion: Never Assume or Disrespect
This is the most common mistake that people generally make. They want others to listen to them but they never tend to respect their thoughts, likes and dislikes.
To assume that others have the same attitude, behavior, likes and dislikes as ours, is not right. Every person is unique and special in its own way. No two persons have the same likes and dislikes.
****
When you don’t oppose their beliefs, opinions or values, they tend to feel comfortable with you and trust you. You must let them know that you value their words and respect what they have to say.
Posted in Persuasion/Advocacy No Comments »
