DID YOU KNOW-The Bankruptcy Code is embodied in Title 11 of the United States Code and, within Title 11, four different types of bankruptcy are available to individuals—namely Chapters 7, 11, 12, and 13. There are two ways in which a bankruptcy may be commenced—voluntarily and involuntarily—and both forms of commencement invoke the automatic stay. See 11 USC 362(a) discussed in §17.11. In a voluntary bankruptcy, the debtor files the bankruptcy petition. In an involuntary bankruptcy, the statutory number of creditors file the bankruptcy against the debtor under 11 USC 303. An involuntary case against an individual may only be commenced under Chapters 7 or 11 of the Bankruptcy Code. Only a debtor may voluntarily file a case under Chapters 12 and 13.

A brief overview of the attributes and eligibility requirements of these four chapters is as follows:

Chapter 7—Liquidation: In this bankruptcy proceeding, the debtor turns over all nonexempt property to the Chapter 7 trustee, whose job it is to sell or liquidate the property and distribute the proceeds to creditors pro rata, usually in a one-time payment once all of the assets have been administered. The Chapter 7 trustee will also investigate the debtor’s financial affairs to determine the location of any nonexempt property (including causes of action) that can be turned into cash for distribution to creditors. The debtor will be released (i.e., discharged) from the unpaid portion of most types of debts. However, DSOs (defined in 11 USC 101(14A)) and debts owing to a spouse, former spouse, or child of the debtor and arising out of a divorce or separation are nondischargeable. See 11 USC 523(a)(5), (15). See §§17.16 and
17.17. The Chapter 7 trustee is always appointed by the U.S. trustee and is usually a member of a panel of trustees.

Chapter 11—Reorganization: The purpose of this bankruptcy proceeding is to allow the debtor a breathing spell from creditors and enable the debtor to reorganize his or her financial affairs. The debtor retains control of all of his or her property unless a Chapter 11 trustee is appointed for cause. Chapter 11 is the most expensive and complicated type of bankruptcy and can last for several years. The debtor proposes a plan of reorganization that is subject to the vote of the creditors. Individuals with debts exceeding the dollar limits in 11 USC 109(e) are eligible to file Chapter 11.

Chapter 12—Family farmer bankruptcy: This type of bankruptcy may be filed only voluntarily and only by a family farmer with regular annual income. This proceeding is similar to a Chapter 13, described below, but the debt limits in Chapter 13 do not apply to Chapter 12.

Chapter 13—Adjustment of debts: This type of bankruptcy may be filed only voluntarily and only by individuals with regular income (filing with or without a spouse) and with debts that fall within the statutory limits for secured debt and unsecured debt. Those debt limits are adjusted at three-year intervals pursuant to 11 USC 104. As of July 2010, the most recent adjustment was effective April 1, 2010, and it provides that only an individual with regular income and unsecured debts of less than $336,900 and secured debts of less than $1,010,650 is eligible to be a debtor under Chapter 13. Soon after a Chapter 13 case starts, the debtor must propose a plan but, unlike a Chapter 11, the creditors of a Chapter 13 debtor do not get the opportunity to vote on it. Instead, the bankruptcy court and the Chapter 13 trustee review the plan and must approve it as fitting within the strict requirements for a plan under Chapter 13. See 11 USC 1325. In the Chapter 13 plan, the debtor commits to pay the Chapter 13 trustee an appropriate part of his or her income or other property for a period of time (generally three to five years). A Chapter 13 trustee is appointed in each Chapter 13 case to distribute the debtor’s payments to the creditors in accordance with a confirmed Chapter 13 plan. Once the debtor has completed all payments due under a confirmed Chapter 13 plan, the debtor receives a broader discharge than individuals receive in a Chapter 7 liquidation. Priority debts must be paid in full, see 11 USC 1322(a)(2), and, pursuant to 11 USC 507(a)(1), a debt for a DSO is a priority unsecured claim. See §§17.16 and 17.17.

For help-Michigan, Flint Genesee, Lawyer / Attorney , Bankruptcy, 810-235-1970, Divorce and Family Law

http://terrybankert.blogspot.com

Michigan Family Law ch 17 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=17 (last updated 09/30/2011

 LAW SCHOOL FAMILY LAW PROFESSORS , WHAT THEY THINK IS IMPORTANT!

Flint Family Law,Divorce Attorney Thoughts on the 4th Annual Midwest Family Law Consortium: Family Law in the 21st Century hosted by the Michigan State College of Law June 17-17 2011.

 Reflections of Flint Divorce Attorney Terry Bankert 810-235-1970. http://www.dumpmyspouse.com/

 or http://www.attorneybankert.com/    Yes I am SEO here, you got me. Oh, I forgot, http://www.nojokebeingbroke.com/

 FAMILY LAW IN THE 21ST CENTURY, divorce, child support, parenting time, custody and stuff.

 I recieved a card promoting this event but placed it on the corner of my desk that I keep for wishful thinking.

 I had a scheduled hearing in conflict with the June 16-17 date of the event. Located in Lansing on the campus of Michigan State University College of Law I was interested.

 Mid week my conflict left and I reached out to go hastely sending in my lonely $100 bucks.

 The program talked of a reception and dinner the night before, we made inquiry and were given the location and time. This I attended.

 The promo stated “ The first decade of the 21st century has been an exciting time for Family Law Scholars, Teachers and Practitioners.” I believe I was the only current practitioner.( lab rat).

 The Professors I am sure had extensive practice expierence before assending the Ivry Tower.

 Justice Marilyn Kelly was the keynote speaker at lunch on Friday the program day. How could I not go, the holy grail of Michigan Family Law intelligence was speaking. I am moitivated to protect the fatherhood rights of putative fathers. Her presentation was motivating.

 But back to the Thursday reception. We dined at Michells Fish Market in a location called East Gate(?). I thought I was in a new commercial development in Atlanta Ga. It sure did not look like Flint to me.( Yes  it was Lansing).

 What I was at was the preconference reception for the presenters, I think I basically crashed it. I am told I did not. But I think the are just being polite.

 The program facilitators were very gracious and made me feel at home and welcome. I had the time of my life. I was able to engage in a level of conversation that is usually fleeting for me. In the end though they were the scientists and I was the lab rat.

 Scholarly law professors toying with a court house practice family law lawyer from violence & depression ridden Flint MI. I thank everyone for the great time.

 The last time I was in the MSU Law Library was when I debated Profesor Bitinski on the use of force and child protective proceeding. I took the side of parents being able to beat disobedience out of the little miscreants.

 It was sponsored by the Federalist Society. I was in unfriendly territory but had my usual good time.Did I tell you I am from Flint MI the most violent city in America and was a 5th Army Drill Sergeant! Bring it on. After all life is to short not to.

 The dinner was great I ordered clam chowder, steak and key lime pie. I prattled on so much, I am a talkative lab rat, that I finished only ½ of the best steak I will have this year. Just where were my priorities. Interesting discussion on the rights of putative fathers.

Combining this with the presentation of Justice Kelly my awarness of this travisty of justice in Family Law was enhanced.

 The Consortium, a room full of law school professors, went well. The presentations were broken up into panels.

 WELCOME

We were welcomed by Melanie B. Jacobs Michigan State University College of Law, Cynthia Lee Starnes Michigan State College of Law, and Dean Joan H. Howarth Michigan State College of Law.

PANEL NUMBER ONE “ ISSUES IN REPRODUCTION.”

 (1)First up was Jamie R Abrahams Hofstra University Law School of Law Presenting “ Distorted and Diminished Tort remedies for birthing mothers.”

(2) Mary Patricia Byrn William Michell College of Law “ Why Banning anonymous Gamete (sperm & egg) donation is a bad idea and probably unconstitutional”

(3) Deborah L. Forman Whittier Law School “ Embryo Disposition and Divorce: Why Clinic consent forms are not the answer.”

(4) Maya Manian University of San Francisco School of Law.” Parents, Minors, and Minor Parents: A Family Law Perspective on Adolescents Reproductive Rights.” The above panel was moderated by Helene S. Shapo Northwestern University School of Law.

PANEL NUMBER TWO “ ISSUES IN INTERNATIONAL AND COMPARATIVE LAW.”

(5) Ann Laquer Estin University of Iowa College of Law “ International Issues in Child Welfare Cases”.

(6) Richard F. Storrow “ The City University of New York School of Law.” The Phantom Children of the Republic: Surrogacy, Globialization and the New Illegitimacy.

(7) Shani M. King Universaity of Florida Levin College of Law “ The right to counsel for unaccompanied minors” This panel was moderated by Leslie J.Harris University of Oregon School of Law.

(8)KEYNOTE ADDRESS DURING LUNCH BY JUSTICE MARILYN KELLY

PANEL NUMBER THREE “ ISSUES IN PATERNITY AND PARENTHOOD”

(9) Cynthia Godsoe Brooklyn Law School “ Parsing Parenthood.”

(10) Jeffrey A. Parnes The John Marshall Law School “ Paternity After Lehr and Michael H.”

(11) Dara E Purvis, University of Illinois College of Law “ Same-Sex intended Parents and the Problem of perspective.” This panel moderated by Maya Manian, University of San Francisco School of Law.”

PANEL NUMBER FOUR “ ISSUES IN MARRAIGE AND DIVORCE”

(12) Jessica Knouse University of Toledo College of Law “ Civil marraige: threat to democracy”

(13) Mark Strasser Capital University Law School “ Child Welfare and promotion of marraige.” This Panel moderated by Nina W. Tarr, University of Illinois College of Law”

PANEL NUMBER FIVE” FAMILY LAW IN PERSPECTIVE”

(14) June Carbone University of Missouri- Kansas City School of Law “ The emergence of Family as a marker of class.”

(15) Barbara Glesner Fines University of Misouri Kansas City School of Law “ How Family Law practice has changed in the past 50 years.”

(16) Leslie J Harris University of Oregon School of Law “ Implications of the fragile families studies for the Law of Family Formation and child support.

(17) Charles Reid University of St. Thomas ( Minnesota) “ Lucifers Children; A story of Free Love, Religion, Politics and Law. This panel was moderatede by Mary Jean Dolan The John Marshall Law School.

Now you will note there were 17 presenters and five moderators, plus 3 organizers from Michigan State plus Justice Kelly and one practicioner (me) additionally counting the one student who came in mid afternoon this number is 28. The exact number in attendance. As a practitioner I paid $100, a bargain by any measure. ( possibly the only one who gladly paid anything). No papers were distributed.I will not post my full notes because I was not as attentive during all presentations.

Mabey next year I will offer a paper . Titled? “ HEY…Here is what you should really teach us about Family Law in Law School, just what were you thinking!”

JUST FOR THE RECORD I AM AVAILABLE TO GUEST LECTURE. I work for steak. I can drive buying my own gas and return to my own housing if interested the following schools may contact me for this protein compensated service; Michigan State College of Law , Thomas Cooley Law School( Alma Mater) , University of Michigan Law School.

Jealous your school is not on my list? Give me a call………. Just saying. 810-235-1970.

TERRY BANKERT 810-235-1970

Link to this site. http://goodmorningflint.blogspot.com/2011/06/law-school-family-law-professors-what.html

THE DO’s

DO be reasonable and cooperate as much as possible with your soon-to-be-ex. Reasonable compromise yields quicker and easier results in divorce cases.

DO support your children through this process. It’s even tougher on them than on you. Don’t make them pick sides.

DO let your spouse know when and where you will spend time with your kids while you work out permanent custody arrangements.

DO fully disclose all your assets and property. A court can throw out a divorce decree based on financial deception, putting you back in court years after you thought everything was final.

DO ask your attorney if anything doesn’t make sense. Your attorney works for you, and should help you understand every part of the divorce process.

THE DON’Ts

DON’T make big plans to take a job in another state or move out of the country until your divorce is final. Your new life could interfere with getting your divorce finalized.

DON’T violate any temporary custody or visitation arrangements. It could make it tougher for you to get the custody or visitation rights you prefer.

DON’T “give away” property to friends or relatives and arrange to get it back later. Hiding property can mean your spouse can take you back to court to settle those assets.

DON’T go it alone. Divorce is complicated, and an attorney can make sure that your interests are protected.

DON’T make wedding plans with your new significant other until your divorce is finalized.

A FEW OF THE ISSUES.

180 day residency in Michigan required of one of the parties.

Friend of the Court becomes involved if there are children or spousal support is requested.

Allegations In a divorce proceeding the only allegation of the grounds for divorce the statute permits is the no-fault grounds, i.e. ” there ha been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likely hood that the marriage can be preserved.

Child Custody proceedings are often part of a divorce action but they may be initiated independent of a divorce proceedings. A married parent may independently commence an action for child support as long as there is no divorce or separate maintenance proceedings.

OTHER PARTIES Generally it is beyond the jurisdiction of the divorce court to adjudicate third- party rights regarding property. An example is a car loan with both names on it. One may be ordered to pay it in the divorce but both can be sued by the lien holder.

Filing and Serving the Divorce/Dissolution Petition

The divorce complaint is a legal document that is filed in court by a spouse who seeks a divorce. This complaint informs the court of the filing spouse’s (called the “petitioner”) desire to end the marriage, and its filing with the court signifies the initiation of the divorce process. Once the divorce/dissolution petition has been “served” on the petitioner’s spouse, it also notifies him or her that the divorce process has begun.

Contents of the Divorce/Dissolution Petition: Information and Requests

A complaint typically contains the following information:

Identification of the spouses by name and address;

Date and place of marriage;

Identification of children of the marriage;

Acknowledgment that the petitioner and/or his or her spouse have lived in the state or county for a certain amount of time prior to filing the petition;

Grounds for divorce;

Declaration or request as to how the petitioner would like to settle finances, property division, child custody, visitation, and other issues related to divorce.

A divorce complaint should be as neutral a document as possible. Inflammatory language can

open up wounds that will never heal.

Do you need help now? Call 810 235-1970 !

By Attorney Terry Ray Bankert 810 235-1970

http://attorneybankert.com/

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/
Posted by Terry Ray Bankert at 7:37 PM 0 comments Labels: alimony, Child Neglect, child support, Flint Custody, flint divorce, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/

DID YOU KNOW- “Proceeds from a personal injury lawsuit meant to compensate for pain and suffering are not joint marital property.” Pickering v Pickering, 268 Mich App 1, 10; 706 NW2d 835 (2005). Nevertheless, those proceeds can be distributed as part of the property division under MCL 552.23 or MCL 552.401. Id. Also, a personal injury settlement can be treated as marital property where the original action included a loss of consortium claim and the settlement check was made payable to both parties and was treated by the parties as marital property. Id. at 11.
Flint Divorce lawyer Terry R. Bankert presents several marital Property Issues. Questions call 810-235-1970 or go to http://attorneybankert.com
ISSUES :

1.Appeal from a judgment of divorce;

2.Whether the trial court should have determined the proceeds from a tort lawsuit settlement were marital property and included them in the marital estate; Berger v. Berger; McDougal v. McDougal; McNamara v. Horner; Reed v. Reed; MCL 552.19; MCL 552.23; MCL 552.401; Pickering v. Pickering;

3.Whether the trial court correctly found that defendant did not use any of the Gocha Enterprises loan proceeds for marital interests; Woodington v. Shokoohi (Unpub.); 4.Whether the property division was inequitable

SEE
Court: Michigan Court of Appeals (Unpublished),Case Name: Gocha v. Gocha
e-Journal Number: 47237,No. 292442,Genesee Circuit Court Family Division
LC , Theile, No. 07-278858-DO,Appellate Judge(s): Per Curiam – Borrello, Cavanagh, and Owens

LOWER COURT RULES TORT SETTLEMENT NOT PART OF MARITAL ESTATE

The court held, inter alia, that the trial court properly refused to determine whether the proceeds from a tort lawsuit settlement based on a botched surgery claim by the plaintiff-wife were marital property or separate property and did not include the lawsuit proceeds in the marital estate.

FORTY YEAR MARRAIGE

The parties were married for nearly 40 years. They had three children, all of whom were adults when plaintiff filed for divorce. At that time, she was employed as a nurse and the defendant-husband was employed as a mechanic/technician, and they earned about the same amount per year.

COURTS JOB IS TO DETERMINE A FAIR DISTRIBUTION OF THE PROPERTY

Absent a binding agreement, the goal in distributing marital assets in a divorce
proceeding is to reach an equitable distribution of property in light of all the circumstances. Berger, 277 Mich App at 716-717. To reach an equitable division, the trial court should consider the duration of the marriage, the contribution of each party to the marital estate, each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal v McDougal, 451 Mich 80, 89; 545 NW2d 357 (1996).

SEPARATE ASSETS MAY NOT BE INVADED GENERALLY

The court noted that generally, marital assets are subject to division between the parties, but the parties’ separate assets may not be invaded.

Generally, marital assets are subject to division between the parties but the parties’
separate assets may not be invaded. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2002). Marital assets are those assets a spouse earns during the course of a marriage. MCL 552.19; Reed v Reed, 265 Mich App 131, 152; 693 NW2d 825 (2005). However, a spouse’s separate estate can be opened for redistribution when one of two statutorily created exceptions is met. Separate property may be invaded if, upon entry of a divorce judgment, the property awarded to one party is not sufficient for the suitable support of one party or the party’s children. MCL 552.23. In the alternative, separate property may be invaded if one “party contributed to the acquisition, improvement or accumulation of the property.” MCL 552.401.

PERSONAL INJURY [PI] AWARDS FOR PAIN AND SUFFERING ARE NOT MARITAL PROPERTY
“Proceeds from a personal injury lawsuit meant to compensate for pain and suffering are not joint marital property,” based on Pickering.

WHEN THERE IS NEED THEY CAN BE ALLOCATED BETWEEN THE PARTIES
Nevertheless, those proceeds can be distributed as part of the marital property division under MCL 552.23 or MCL 552.401.

LOSS OF CONSORTIUM MAKES IT JOINT PROPERTY
Also, a personal injury settlement can be treated as marital property where the original action included a loss of consortium claim, the settlement check is made payable to both parties, and was treated by the parties as marital property.

THIS CASE WAS PAIN AND SUFFERING ONLY
However, in this case the record indicated that the settlement proceeds were intended to compensate the plaintiff for pain and suffering related to the surgery.

THE PI AWARD WAS SEPARATE PROPERTY
Thus, they were properly treated as her separate property.

SHE SUFFERED
Plaintiff suffered horrible injuries as the result of a failed tummy tuck and hernia repair procedure. She was on a ventilator for four days and in the ICU for six days. She was in the hospital for more than 3 weeks and was out of work for 14 weeks. She suffered permanent scarring of her abdomen and thighs.

NO EVIDENCE THAT HUSBAND MADE A LOSS OF CONSORTIUM CLAIM
There was no evidence in the record that defendant made a loss of consortium claim in her original case. While both the wife and husband signed the settlement release, there was no evidence that the settlement check was made out to both. The only evidence indicated the wife was compensated for her pain and suffering as a result of medical malpractice.

LOWER COURT CALLED PI PROCEEDS SEPARATE
Thus, the trial court did not clearly err in finding the settlement proceeds amounted to separate property.

Generally, as noted above, marital assets are subject to division between the parties but
the parties’ separate assets may not be invaded. McNamara, 249 Mich App at 183. Marital assets are those assets that came to a spouse “by reason of the marriage . . . .” MCL 552.19; Woodington v Shokoohi, ___ Mich App ___; ___ NW2d ___ (Docket No. 288923, issued May 4, 2010), slip op, p 3. “The goal of a court when apportioning a marital estate is to equitably divide it in light of all of the circumstances.” Reed, 265 Mich App at 152. As noted above, to reach an equitable division, the trial court should consider the duration of the marriage, the contribution of each party to the marital estate, each party’s station in life, each party’s earning ability, each party’s age, health and needs, fault or past misconduct, and any other equitable circumstance. McDougal, 451 Mich at 89.

LOWER COURT REFUSED ALLOCATED THIS SEPARATE PROPERTY
Further, the trial court did not err in refusing to invade plaintiff’s separate property under either MCL 552.23 or MCL 552.401. The settlement proceeds were not required to insure the support of the defendant, he did not request alimony, and he recognized he did not need financial support from plaintiff. Also, defendant did not contribute to greatly relieving plaintiff’s pain and suffering after her surgery. He testified he was not even aware she was having the surgery until the day before. He did help her recover by assisting with bathing and changing her dressings, but he lost at most two days of work. The trial court did not clearly err in refusing to invade plaintiff’s settlement proceeds and distribute them as part of the marital property. The court also held that the other issues raised on appeal by the defendant had no merit and affirmed.

Presented here 11/15/10
By Terry R. Bankert

http://attorneybankert.com

BITTER CUSTODY FIGHT, IS THIS AN EXCUSE?

Gibson, 54, and Grigorieva, 40, are now locked in a bitter custody dispute and the superstar facing domestic abuse allegations and the fallout from leaked audiotapes in which Gibson berates and threatens Grigorieva during profane rants. [1]

DEATH THREAT

On a new recording released today, 07/12/2010, Mel Gibson allegedly threatens to “bury” the mother of his child. Although just one listen and it’s clear the actor’s digging his own grave.[3]

TAPES RELEASED
A source close to the case claims the tapes were recorded in February on the heels of a heated exchange in January. [1]

WAS MOM SHAKING THE BABY?

Both sides agree they argued in January but differ on what exactly transpired. Grigorieva claims Gibson punched her in the face “more than once,” breaking a tooth and knocking out a veneer. Another Gibson source says the actor only “tried to stop [Oskana] from shaking their baby like a ragdoll” during the altercation. [1]

ANOTHER HOLLYWOOD IDOL IN DOMESTIC VIOLENCE, MEL IS NOT ALONE.

Charlie Sheen’s

http://www.examiner.com/x-36751-Canada-Celebrity-Headlines-Examiner~y2010m7d12-Charlie-Sheen-hearing-delayed-until-August–filming-jeopardizedhttp://ca.eonline.com/uberblog/b189914_death_threats_admission_of_violence.htmlhttp://www.foxnews.com/entertainment/2010/07/13/isnt-hollywood-outraged-mel-gibsons-racist-sexist-rants/http://www.people.com/people/article/0,,20401383,00.htmlhttp://attorneybankert.com hearing for domestic violence, which was scheduled to begin today, has been delayed until August 2, 2010 — just as filming for the new season of Two And A Half Men is due to begin.[4]

This opinion has been modified for media presentation. Original opinion at [1]

MOTION FOR CUSTODY

Plaintiff appeals by right an order of the trial court denying his motion to change custody.
The Lapeer Circuit Court, on de novo review, agreed with the Friend of the Court (FOC)
referee’s findings and entered an order consistent with the findings. Finding no error, we affirm.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).

MARRIED 1989-2004

Plaintiff and defendant married in 1989 and divorced in 2004. The marriage produced
one child, MC, born in 2000.

JOINT LEGAL AND PHYSICAL CUSTODY THE PLAINTIFF PRIMARY PHYSICAL CUSTODY

The parties entered into a consent judgment of divorce that
granted both parents joint legal and joint physical custody of MC . In 2007, defendant,
concerned over plaintiff’s imminent move to West Virginia, sought sole physical custody.
Defendant was instead granted primary physical custody, and plaintiff was granted permission to move to West Virginia.

ON VISITS DAD GRABS CUSTODY

In January of 2009, while MINOR CHILD (MC) was with FATHER plaintiff in West Virginia, plaintiff sought and received in the courts of West Virginia an emergency protective order and temporary custody of MC. Meanwhile, defendant filed a motion in the Lapeer Circuit Court for MC return.

MICHIGAN SAYS GET THIS CHILD BACK

The trial court informed plaintiff that the temporary custody granted by West Virginia was
without effect and that he was required to return MC to defendant MOTHER, and attend a hearing in the Lapeer Circuit Court. FATHER Plaintiff complied, and on the date of the hearing filed a motion for change of custody in that court.

REFEREE SAYS LEAVE CHILD HERE

In June of 2009, the FOC referee heard plaintiff’s motion, taking testimony from
plaintiff, defendant, and plaintiff’s wife. The referee also interviewed MC in camera. The
referee recommended that plaintiff’s motion be denied, and made findings of fact on the record.

FATHER SAYS REFEREE SCREWED UP APPEALS TO THE REAL JUDGE

Plaintiff filed his objections before the trial court. The trial court reviewed the transcript and the
pleadings, and agreed with the referee and entered an order denying plaintiff’s motion.

FATHER NOT HAPPY WITH LAPEER COURT, HE APPEALS

Plaintiff’s sole argument on appeal is that the trial court abused its discretion in denying
plaintiff’s motion in light of the following facts:

(1) plaintiff is married and has a stable home,
while defendant has had two live-in boyfriends she met on the internet;

(2) plaintiff has a higher
income than defendant;

(3) defendant was previously unaware of MC Asperger syndrome1
diagnosis.

RULES FOR THE COURT OF APPEALS

We affirm all orders and judgments of the trial court in child custody cases unless the
court “made findings of fact against the great weight of evidence or committed a palpable abuse
of discretion or a clear legal error on a major issue.” MCL 722.28; Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004).

A JOURNEY BEGINS WITH THE FIRST STEP

The first step in deciding a motion for change of custody is determining whether proper
cause or change of circumstances merits such a change. MCL 722.27(1)(c); Powery v Wells, 278
Mich App 526, 527; 752 NW2d 47 (2008).

FATHER IS THE BEARER OF THE BURDEN

The party seeking the change bears the burden of establishing this by a preponderance of the evidence. MCL 722.27(1)(c).

JUST WHAT DID THE REFEREE SAY
THERE IS A CHANGE IN CIRCUMSTANCES

The FOC referee found that defendant having two live-in boyfriends in the space of two and a half years was both a sufficient change of circumstances and a proper cause to allow a change of custody.

Plaintiff does not contest this finding on appeal. Nor does the finding appear to be a palpable abuse of discretion, as the adults with whom a child lives have or can have a significant effect on that child’s well-being and development.

WHAT ABOUT THE CUSTODIAL ENVIRONMENT?

The next inquiry is whether there is an established custodial environment. Powery, 278
Mich App at 528. Plaintiff FATHER concedes that an established custodial environment exists with Defendant MOTHER . The referee did not rely on plaintiff’s concession, but found that there was an established custodial environment based on the length of time defendant had primary physical custody. This finding is not against the great weight of the evidence. See Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).

PRELIMINARY STEPS COMPLETED, IS IT CLEAR?

Having established that there is proper cause or a change in circumstances, and that there
is an established custodial environment, what remains to examine is whether plaintiff established by clear and convincing evidence that the change in custody is in the best interest of MC. Powery, 278 Mich App at 528.

THE LEGISLATURE HAS DECIDED THE ELEMENTS OF THE BEST INTEREST OF A CHILD?

The Legislature has enumerated the following 12 factors to be considered when making the best interest determination:

(a) The love, affection, and other emotional ties existing between the
parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.

(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23.]

SOME FACTORS ARE MORE EQUAL THAN OTHERS

While the best interest factors must be considered, a trial court need not give each factor equal
weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).

FATHER SAYS FACTORS C,D,E, DONE WRONG.

It appears as though plaintiff’s arguments are aimed at best interest factors (c), (d), (e),
and (f).

( C)

The referee explained that plaintiff prevailed on factor (c) due to his higher income, but
noted that both parties were “struggling,” and that neither party was “suffering.” Because the
disparity in income was not dramatic, the referee did not give it great weight.

(D)(E)

With respect to factors (d) and (e), the referee expressed concerns about defendant’s two live-in boyfriends.

LIFE STYLE IS OF CONCERN

The trial court agreed that there were “certainly legitimate concerns about the Defendant’s lifestyle and her manner of involvement of male companions in the child’s life.” The referee’s and the trial court’s concerns on the impact of defendant’s decision to have her boyfriends live in the
home with MC does impact the stability and prospects for stability of the home. Thus, there
was no error in the handling of these factors below.

PARITY ON (F)

The referee found that the parties were equal with respect to factor (f), specifically
rejecting plaintiff’s argument that cohabitation outside of marriage was per se immoral under
case law. See Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988)). It was not clear
legal error for the trial court to reject plaintiff’s argument; rather, it would have been clear legal
error for it to accept plaintiff’s argument.

THE SUM OF ALL THE PARTS IS THE SUM, MOTHERS SUM GREATER THAN FATHERS

In sum, the referee considered all of the statutory factors, weighed them, and found that
the factor on which defendant prevailed outweighed the two factors on which plaintiff prevailed.
The trial court, reviewing the testimony, came to the same conclusion.

THE LOCAL COURT DID NOT MESS UP

We find no palpable abuse of discretion in the trial court’s balancing of the best interest factors, and in finding that plaintiff failed to prove by clear and convincing evidence that it was in Joshua’s best interest to
grant plaintiff’s motion for change of custody

THE MICHIGAN COURT OF APPEALS AGREED WITH THE LAPEER FAMILY COURT!

Affirmed.
Posted here by
Terry Bankert
http://attorneybankert.com/
see
[1]
http://www.icle.org/contentfiles/mlo/unpublished/20100318_293702.pdf
[2]
CAP HEADLINES or 9trb)
Terry Bankert
http://attorneybankert.com/
FOOTNOTE
1 Asperger syndrome is a developmental disorder characterized by low social ability but normal
linguistic and cognitive function (DSM-IV-TR). It is often considered a form of or similar to
high-functioning autism.
　

THE SAGINAW DIVORCE DISCOVERY OF BUSINESS RECORD CASE

CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.

Docket No(s) 288923, Published 05/04/2010

Trial Court/lower Court Saginaw County Circuit Court.

Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM

(This opinion has been modified for media presentation)

To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf

SAAD, J.

Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.

III. DISCOVERY OF BUSINESS RECORDS

Plaintiff argues that the trial court erred in denying her discovery request for production of the business records of the Great Lakes Eye Institute, P.C. A trial court’s decisions regarding discovery are reviewed for abuse of discretion. Mercy Mt Clemens Corp v Auto Club Ins Ass’n, 219 Mich App 46, 50; 555 NW2d 871 (1996). In view of the unique circumstances of defendant’s relationship to the P.C., we conclude that the trial court abused its discretion in denying the discovery request.

After completing his residency in ophthalmology, defendant practiced medicine with the Great Lakes Eye Institute, P.C., a professional corporation owned by his brother, Farhad Shokoohi. Defendant was allegedly employed pursuant to an employment agreement, but his compensation up to and including 2005 was substantially higher than the amount due under the agreement. In 2006, the year plaintiff filed for divorce, defendant’s compensation was reduced to the contractual payment amount. Plaintiff maintained that defendant was a part owner of the P.C., although corporate documents listed Farhad as the sole owner. She sought discovery of the P.C.’s business records to investigate the true nature of defendant’s relationship with the P.C., and the means of determining his compensation. The trial court reviewed the records in camera and denied the request.

The issue, as framed by plaintiff, is not whether the trial court erred in finding that defendant had no ownership in the P.C., but whether the trial court erred in denying plaintiff the discovery materials she says are necessary to assess defendant’s status in relation to the P.C. The trial court’s comments that the materials were not discoverable because they did not contain information concerning defendant’s income reflect a misunderstanding of plaintiff’s purpose in issuing the subpoena for the documents. Plaintiff sought the documents to assess whether defendant’s compensation was formulaically correlated to the P.C.’s receipts (suggesting an ownership interest), rather than calculated only according to the employment agreement. Plaintiff established suspicious circumstances warranting further investigation of how defendant’s compensation was determined. Defendant’s actual compensation from 2000 to 2005 was substantially disparate from the compensation he should have earned under the employment agreement, but in 2006, the year plaintiff filed for divorce, it was reduced to the employment agreement level. Moreover, although defendant claims he is and always has been only an employee of the P.C., evidence shows that he bragged to others that he had an ownership interest and corporate documents show that defendant was listed as an officer of the P.C. These circumstances raise questions as to why defendant was overpaid, and why the end of overpayment coincided with the onset of the divorce action. Defendant’s self-serving explanation—that his brother paid him generously out of fraternal affection until 2006—does not dispel questions as to Farhad’s actual arrangement of defendant’s compensation. Additionally, Farhad’s conflicting statements regarding defendant’s status as a corporate officer merit further discovery to determine whether defendant held any position other than a salaried physician. Plaintiff should have been allowed the opportunity to examine the documents to investigate the actual nature of defendant’s status in the P.C. The suspicious circumstances surrounding defendant’s compensation militate against accepting at face value defendant’s assertion that his compensation was an ad hoc decision based on familial favoritism.

Defendant argues that plaintiff’s expert, Robert Selley, essentially conceded the ownership issue by stating that ownership status did not enter into his analysis. The pertinent question, however, is whether the financial records contained information that might have enabled Selley to better assess whether defendant had an ownership interest, and whether that information could have led to a different or stronger analysis.

In Eyde v Eyde, 172 Mich App 49; 431 NW2d 49 (1988), the defendant wife, Katherine Eyde, sought business records from the her husband’s brother and business partner, George Eyde, in the course of divorce proceedings to determine her husband’s net worth. George Eyde brought an action to prevent discovery of the documents. The trial court entered an order compelling discovery but establishing a number of safeguards designed to prevent the disclosure of confidential matters and to prevent discovery of documents which relate only to George Eyde and were not relevant to Kathleen Eyde’s determination of Louis’s net worth. Id. at 50. The Court stated:

Michigan has a strong historical commitment to a far-reaching, open and effective discovery practice. Daniels v Allen Industries, Inc, 391 Mich 398, 403; 216 NW2d 762 (1974). Discovery rules are to be liberally construed in order to further the ends of justice. Id. The modern tendency is to broaden the scope of discovery when necessary to facilitate preparation, to guard against surprise, and to expedite justice. Fassihi v St Mary Hospital of Livonia, 121 Mich App 11, 15; 328 NW2d 132 (1982).

The general rule is that any document which is relevant and not privileged is freely discoverable upon request. Davis [ v O’Brien, 152 Mich App 495,] 502- 504[; 393 NW2d 914 (1986).] MCR 2.302(B)(1) provides:

Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.

There is no requirement that there be good cause for discovery of relevant and nonprivileged documents. Davis, 152 Mich App at 503-504. [ Id. at 54-55.]

The Court concluded that the defendant wife was entitled to discover Louis Eyde’s records. It stated:

Louis Eyde’s business records and banking records were relevant to the subject matter involved in defendant’s divorce action. The financial status of defendant’s husband is material and relevant to the subject matter of defendant’s divorce. . . . Defendant’s discovery so far has been inadequate to determine the true value of Louis Eyde’s assets; financial statements now in defendant’s possession vary widely in their estimate of Louis Eyde’s net worth. The documents already in defendant’s possession do not include relevant financial information regarding all of Louis Eyde’s known business entities. Plaintiff’s counsel had effectively blocked any estimate of Louis Eyde’s net worth by deposed bank officials. Thus, the documents at issue are relevant and necessary to determine the extent and value of defendant and Louis Eyde’s marital estate. [ Id. at 55.]

Although not directly on point, Eyde is instructive with respect to discovery of financial records that are relevant to ascertaining the value of a spouse’s assets, but which are in the possession of a closely related third party. In Eyde, it was already established that George Eyde and Louis Eyde were partners in several business endeavors, and that Louis’s records were relevant to George’s financial status. In the instant case, in contrast, defendant’s status in relation to the P.C. is uncertain. The corporate documents indicate that Farhad is the sole shareholder, and defendant’s tax returns indicate that he is an employee without an ownership interest, but plaintiff has raised evidence of inconsistency between these “official” facts and defendant’s actual compensation. Under these specific circumstances, plaintiff has established that discovery of the P.C. records are relevant to the subject matter, and are therefore discoverable.

In granting the P.C.’s motion to quash, the trial court stated that the records were not relevant to proving defendant’s income. We agree with plaintiff that this ruling was off-point. Plaintiff needed the records to investigate the P.C.’s basis for determining defendant’s income, and to investigate whether this method reflected any understanding between Farhad and defendant concerning possible ownership status. Such information would have been highly relevant to Selley’s analysis of the value of defendant’s “holder’s interest” in his practice.

Plaintiff has offered concrete, specific reasons why the P.C.’s records might reveal pertinent information concerning defendant’s involvement. Accordingly, we remand to the trial court to enable plaintiff to examine the records sought in the subpoena. After examining the records subject to an appropriate protective order, plaintiff may move for appropriate relief based on information in the records that could lead to a different outcome in regard to defendant’s interest in the P.C. as a marital asset.

Posted here by

Terry Bankert

see

[1]

CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.

Docket No(s) 288923, Published 05/04/2010

Trial Court/lower Court Saginaw County Circuit Court.

Trial Court Judge Robert L. Kaczarek
Lower Court Docket No(s) LC No. 06-060841-DM

[2]

CAP HEADLINES OR (trb)

Terry Bankert

MISC

FOOTNOTES

1

Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569. http://attorneybankert.comhttp://attorneybankert.com

Terry Bankert a Flint Divorce Lawyer , Http://attorneybankert.com observes it was a bad day for Alabama Mobile County Commissioner Stephen Nodine . Most of us working stiffs think our world has ended and nobody has it worse than us when we are served divorce papers papers.

IF YOU THOUGHT THE DAY YOU WERE SERVED WITH DIVORCE PAPERS WAS BAD ASK MR. NODINE

SERVED INDICTED IMPEACHED AND NAMED ONLY MURDER SUSPECT

On one Friday he was served divorce papers indicted Friday by a Mobile County Grand Jury on drug charges, impeached and named the only suspect in the murder of his mistress, Angel Downs[see1]

MICHIGAN IS A NO FAULT DIVORCE STATE

To end a valid marriage, there must be a judgment of divorce. In a divorce complaint, the only allegation of the grounds for divorce the statute permits is the no-fault ground, i.e., “there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.” MCL 552.6(1). If the statutory standard is met, the court must enter a judgment of divorce; thus, one party will invariably be able to obtain the divorce even if the other party objects. Grotelueschen v Grotelueschen, 113 Mich App 395, 318 NW2d 227 (1982) (if either party is unwilling to live with the other, the objects of matrimony have been destroyed); Kretzschmar v Kretzschmar, 48 Mich App 279, 210 NW2d 352 (1973) (one party’s assertion of the mere possibility that the marriage can be preserved is not sufficient grounds to deny the divorce). [3]

WIFE THINKS THERE MAY BE IRRECONCILEABLE DIFFERENCES

In the divorce papers filed Friday, Kimberlee Nodine cites an “irretrievable breakdown of the marriage” and says any attempts to reconcile would be futile.[1] Do ya think.

WHAT WILL SHE GET WHEN HES IN JAIL?
She’s seeking custody of their son, $971 per month in child support and $2,500 per month in alimony. Mrs. Nodine also wants to keep the couples house and her 2005 Honda Pilot, but wants Steve to pay the mortgage and car payment. She also wants Steve’s pension from Mobile County.[1]

CHILD CUSTODY IN MICHIGAN

A court cannot enter a new custody order or amend an existing order without first determining if there is an established custodial environment. MCL 722.27(1)(c). Whether an established custodial environment exists is a preliminary and essential determination. Ireland v Smith, 214 Mich App 235, 542 NW2d 344 (1995), aff’d, 451 Mich 457, 547 NW2d 686 (1996). The trial court must make clear findings on this issue before deciding custody. Stringer v Vincent, 161 Mich App 429, 411 NW2d 474 (1987). This includes a request for sole custody when the initial order was for joint custody. See Duperon v Duperon, 175 Mich App 77, 437 NW2d 318 (1989); Nielsen v Nielsen, 163 Mich App 430, 415 NW2d 6 (1987). [3]

Once the trial court makes findings on the record on whether an established custodial environment exists and determines the appropriate burden of proof, it must then apply that burden to the best interests factors. Underwood v Underwood, 163 Mich App 383, 414 NW2d 171 (1987).

The best interests of the child are the controlling consideration in custody disputes between parents, between agencies, and between third persons. MCL 722.27a. The best interests factors are set forth at MCL 722.23 (see §3.8). Before granting primary physical custody to a party in a custody determination, the trial court must consider each of the statutory factors and make specific findings on the record. Overall v Overall, 203 Mich App 450, 512 NW2d 851 (1994); Schubring v Schubring, 190 Mich App 468, 476 NW2d 434 (1991); Meyer v Meyer, 153 Mich App 419, 395 NW2d 65 (1986).

The best interests of the child means the sum total of the following 12 factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute. MCL 722.23

CHILD SUPPORT IN MICHIGAN

Under the SPTEA, support means the court-ordered payment of money for a child, including payment of the medical, dental, and other health care expenses; child care expenses; and educational expenses. MCL 552.602(ee)(i).

According to 2008 MCSF 3.04, every support order must set a family annual ordinary health care expense amount to cover uninsured costs, premiums, and copays for children.

For purposes of setting the support obligation, it is presumed that a specified dollar amount per child per year ($345 in 2008 manual) will be spent on ordinary expenses. This annual amount is apportioned according to the parents’ income, and the payer’s share is paid as part of the regular support payment. The payee must incur this minimum threshold amount before seeking reimbursement for health care expenses from the payer.

However, the payer may seek to have the payee pay his or her apportioned amount of any health care expenses, regardless of whether the threshold amount has been satisfied. Amounts may be added to compensate for other known or predictable expenses, such as orthodontia or special medical needs. Uninsured health care expenses that exceed the ordinary health care expense amount are extraordinary expenses, which are apportioned between the parents based on the medical percentages set in the support order.

SPOUSAL SUPPORT IN MICHIGAN

A spousal support award must be just and reasonable under the circumstances of the individual case. MCL 552.23; see Maake v Maake, 200 Mich App 184, 187, 503 NW2d 664 (1993).

Relevant factors in determining whether spousal support should be awarded include the following:

the past relations and the conduct of the parties

the length of the marriage

the ability of the parties to work

the source of and amount of property awarded to the parties

the ages of the parties

the ability of the parties to pay spousal support

the present situation of the parties

the needs of the parties

the health of the parties

the prior standard of living of the parties

whether either party is responsible for the support of others

general principles of equity

Parrish v Parrish

http://blog.al.com/live/2010/05/impeachment_trial_of_stephen_n.htmlhttp://www.wkrg.com/alabama/article/steve-nodines-wife-files-for-divorce/887557/May-17-2010_5-41-pm/http://attorneybankert.com, 138 Mich App 546, 554, 361 NW2d 366 (1984).

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits. She currently is not allowing my ex to go to her house due to various thefts and drama. During the past six months she has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she only has come to see him about half the time. Recently she hasn’t came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

First I will restate it to clearly identify the actors for this answer and state several assumptions.

“Can my ex get me in trouble for not sending my son to his supervised visits.

My ex mother in-law has not obeyed the rules for the visits of my son with my sons mother.

ASSUMPTION Because there is an ongoing protective services case and she has a case worker it is assumed that there is an active CPS case with a placement with the father and mothers parenting time is supervised at the maternal grandmothers home.

She, my ex- mother in law, currently is not allowing my ex wife to go to her , the ex-mother in law, house due to various thefts and drama.

During the past six months she, the ex wife, has been to rehab, had documented heroin and other drug use, she has an ongoing protective services case, and she ,the ex wife, only has come to see him about half the time.

Recently she , the ex wife, has not came to see him at all in the last few weeks. I was told that her caseworker is helping her file a complaint and that they are going to provide her with a lawyer. “

The writer asked

“Can my ex get me in trouble for not sending my son to his supervised visits”

RESTATED Will the father be in violation of a court order if he does not send his son to the maternal grandmothers home as ordered in a child protective proceeding as ordered by the court at probably a contested pretrial. YES

ASSUMPTION The father has not denied the child to the maternal grand mother for the supervised parenting time.

The father will not be “ in trouble” if is the grand mother in breech. If the child has a loving relationship with the grand mother why stop sending the child. The grand mother will have to explain her actions at the next contested pretrial. The father should contact the case worker directly to establish that he is not withholding the child. The father should monitor the child protective proceedings.

Child protective proceedings and their orders are temporary in nature unless there is an order for termination of parental right. The domestic order that establishes parentage, child custody and parenting time is permanent. It is superseded by the Child protective order but will return when the child proactive case is closed. The father if he does not already have it should seek a change in custody of the child to him self and supervised parenting time to the mother.

For further explanation please contact me directly.

Terry Bankert

 http://attorneybankert.com