Domestic Diversions

Selected 2006-2007 published Michigan family law decisions

Proving best interests for change in custody

Dumm v. Brodbeck, Mich.App., July 19, 2007:
Defendant failed to establish by clear and convincing evidence that a change in custody was in Gwyneth’s best interest. Defendant alleged that plaintiff forced Gwyneth to use the last name “Dumm” at school. Defendant also asserted that officials at Gwyneth’s school told him that Gwyneth did not exhibit behavior reflecting a need for attention deficit/hyperactivity disorder (ADHD) medication. Defendant alleged that Gwyneth was not responding well to the ADHD medication and attacked plaintiff for failing to seek follow-up treatment. He claimed that plaintiff’s parents could testify that Gwyneth was under extreme distress arising from plaintiff’s treatment and control over her. However, defendant presented no affidavits from school officials or plaintiff’s parents or any medical records or documentation from Gwyneth’s physician regarding her behavior and need for medical treatment. Given the lack of evidence supporting defendant’s assertions, the trial court properly determined that defendant failed to establish by clear and convincing evidence that a change in custody was in Gwyneth’s best interests.

Reduction in income for child support purposes

Stallworth v. Stallworth, 275 Mich.App. 282, 738 N.W.2d 264, April 17, 2007:
Here, the trial court improperly relied on defendant’s reduced income capacity that resulted from his past criminal activities to impute income to him. The court opined that it “[was] not inclined to reward Defendant for his actions by lowering his financial obligations to support his family.” Although it is true that defendant’s criminal actions were voluntary, there is no evidence that defendant committed any crimes with the intent to reduce his income. Indeed, given the nature of the crimes, it could be inferred that defendant was attempting to increase his income. Defendant’s criminal conviction bars him from earning a living in politics, at least now, because he was forced to resign from his most recent elected position. Defendant’s resignation resulted in an involuntary reduction in his income. Although it is true that defendant obviously knew he was committing crimes and did so voluntarily, he has been punished for those crimes. To now cite his criminal conviction as a voluntary lowering of his income in an effort to thwart child and spousal support, is both illogical and legally unprecedented. We cannot do so, and must conclude that it was improper for the trial court to have done so. Therefore, we find that the trial court improperly utilized defendant’s conviction as a reason for imputing income to him.

Sanctions for misconduct in divorce case

Koy v. Koy, 274 Mich.App. 653, 735 N.W.2d 665, March 13, 2007:
When a trial court must resort repeatedly to orders and sanctions of increasing severity to compel a party’s participation in court proceedings, and the party still refuses to comply, the trial court properly exercises its power in entering a default and, if appropriate, a default judgment against that party. As this Court previously stated in Draggoo v. Draggoo, 223 Mich.App. 415, 427, 566 N.W.2d 642 (1997), “In our view, the ultimate sanction of default judgment is a necessary sanction at the trial court’s disposal to require compliance with its interim orders in a divorce case.” Under the circumstances of this case, the trial court did not abuse its discretion in denying defendant’s motion to set aside the default judgment.

Notice of foreign court proceedings

Isack v. Isack, 274 Mich.App. 259, 733 N.W.2d 85, February 13, 2007:
In conclusion [case involving Uniform Foreign Money-Judgments Recognition Act (UFMJRA)], because defendant did not have notice of the summary disposition motion in Canada that resulted in the issuance of the judgment against her, the trial court was permitted to decline to recognize it under MCL 691.1154(2)(a).

Income for child support purposes

Borowsky v. Borowsky, 273 Mich.App. 666, 733 N.W.2d 71, January 23, 2007:
Because the trial court did not properly apply the MCSF in calculating the applicable child support, we vacate the trial court’s child support order and remand for recalculation of the support order. On remand, the trial court shall recalculate defendant’s income consistent with this opinion. Upon recalculation, the trial court may elect to deviate from the MCSF should it conclude that application of the MCSF would be unjust or inappropriate under the facts of this case. If the trial court elects to deviate from the formula, it shall satisfy the requirements of MCL 552.605(2)(a) through (d). See Burba, supra at 643-649, 610 N.W.2d 873. In all other respects, we affirm the judgment of the trial court.

Changing domicile versus changing custody

Rittershaus v. Rittershaus, 273 Mich.App. 462, 730 N.W.2d 262, January 04, 2007:
Defendant appeals as of right the trial court’s order granting plaintiff’s motion to change the domicile of the party’s minor children from Michigan to Texas and denying his motion to change the standing custody order to award him sole physical custody. With respect to the trial court’s order granting plaintiff’s motion to change the domicile of the minor children, we remand for the trial court to make findings and a determination regarding whether an established custodial environment existed with respect to defendant. If the trial court finds that an established custodial environment existed with respect to defendant, then the trial court must conduct an inquiry into whether a change in domicile is in the minor children’s best interests, MCL 722.23. With respect to the trial court’s order denying defendant’s motion to change custody, we likewise remand to the trial court to consider the best-interest factors of MCL 722.23. On remand, the trial court shall decide whether the existing record is sufficient to permit it to make these determinations or whether an additional evidentiary hearing will be conducted.

Fraud in divorce cases

Estes v. Titus, 273 Mich.App. 356, 731 N.W.2d 119, December 21, 2006:
In this wrongful death action, plaintiff appeals by leave granted the trial court’s order denying her motion to add defendant’s former spouse as a party for purposes of conducting an evidentiary hearing to inquire into the fairness of the property division approved in a divorce judgment entered while this action was pending. Plaintiff argues that, to the extent the marital property settlement exceeded a fair and equitable division, it was a fraudulent transfer within the meaning of the Uniform Fraudulent Transfer Act (UFTA), MCL 566.31 et seq. We agree and reverse.

Decision-making authority in joint custody cases

Shulick v. Richards, 273 Mich.App. 320, 729 N.W.2d 533, December 19, 2006:
Plaintiff appeals as of right an order changing the physical and legal custody of the parties’ minor children from plaintiff, solely, to the parties, jointly. We hold that the trial court’s finding that the parties could cooperate on important decisions concerning the welfare of the children was not against the great weight of the evidence and that the trial court did not abuse its discretion in awarding the parties joint legal and physical custody of the minor children. We also conclude, however, that the trial court erred in dividing the decision-making authority between the parties in the event that they cannot agree on decisions affecting the welfare of their children and thus remand to the trial court for removal of this provision from the order.

Acknowledgment of parentage versus Paternity Act

Sinicropi v. Mazurek, 273 Mich.App. 149, 729 N.W.2d 256, December 07, 2006:
We hold that an order of filiation cannot be entered under the Paternity Act, MCL 722.711 et seq. , if, under the Acknowledgment of Parentage Act, MCL 722.1001 et seq. , a proper acknowledgment of parentage was previously executed and has not been revoked. This is because, under MCL 722.1003 and MCL 722.1004, an unrevoked acknowledgment already legally established paternity and conferred the status of natural and legal father on the man executing the acknowledgment, which in turn entitled him to seek custody or parenting time if desired and obligated him to pay support if appropriate. Accordingly, the trial court erred by ruling that the child has two legally recognized fathers under both the Acknowledgment of Parentage Act and the Paternity Act. The case is remanded to the trial court for action consistent with this opinion and further reflection on the issue of revocation of the acknowledgment of parentage.

Deductions and taxes for child support purposes

Peterson v. Peterson, 272 Mich.App. 511, 727 N.W.2d 393, October 24, 2006:
Plaintiff appeals by leave granted the trial court order adopting the Friend of the Court (FOC) recommendation concerning defendant’s child support obligation. The issue presented to us is whether the trial court, in the context of calculating defendant’s child support obligation, erred in deducting taxes from defendant’s income. These taxes were not actually incurred by defendant, but theoretically would have been incurred had defendant not been entitled to a depreciation allowance in preparing his income tax returns. This depreciation allowance indisputably could not be deducted from income when examining the parties’ income levels relative to child support. Because the 2001 version of the Michigan Child Support Formula Manual (MCSF Manual) does not allow deductions for theoretical taxes, as opposed to taxes actually incurred, on income received by a parent, and because limiting deductions to taxes actually incurred is not unjust or inappropriate, the trial court erred in its child support calculation, and we reverse and remand.

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2 thoughts on “Selected 2006-2007 published Michigan family law decisions

  1. Muriel

    if your marred not yet divorced and are having a baby with a boyfriend can the baby have the boyfriends last name

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