FLINT DIVORCE, DIVORCE LAWYER 235-1970 TERRY BANKERT

I am a divorce lawyer in Michigan. My office is located across the street from The Genesee  County Court House downtown Flint Michigan.
http://attorneybankert.com

DID YOU KNOW THAT-Default judgments. §§1.46–1.50.
The grounds are same as in other cases (e.g., failure to plead or failure to comply with other court rules).
The party seeking a default files a default, notice of entry of default, and an affidavit of default, and sends notice of entry of default to all parties.
A default may be filed at any time after the grounds are established, but the waiting period or other requirements may delay entry of the default judgment.
If the defaulted party has appeared, the party seeking entry of the judgment must give the defaulted party written notice of the request for entry of the judgment at least seven days before the hearing. See §1.50 for what constitutes an appearance.
If the defendant has not appeared, a nonmilitary affidavit must be filed before the default judgment of divorce can be entered.


There will be no fee for our first meeting where I will explain how to file for divorce in Michigan
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DI D YOU KNOW THAT-Entry of the judgment.
A party must submit the judgment for entry within 21 days after the court’s opinion or a settlement was placed on the record, unless the court grants an extension. The court may require that the judgment be submitted to the Friend of the Court for review.
Methods for entering a divorce judgment after trial or after the parties place the settlement on the record:

• The court may sign the judgment when it grants the relief provided by the judgment.
• After the parties approve the judgment’s form, the court signs the judgment if it complies with the court’s decision.
• The parties may submit the judgment under the seven-day rule.
• The parties may prepare a proposed judgment and file a motion for settlement.

I have touched on or seen from start to finish thousands of divorces in Michigan since I entered the practice of law in 1994.
http://dumpmycreditors.wordpress.com

DID YOU KNOW THAT-Required provisions for divorce judgments.
All divorce judgments. §1.54.

• A determination of each party’s rights in insurance on the life of the other party.
• A release of dower rights.
• A determination of each party’s rights in pension, annuity, or retirement benefits; contributions to a pension, annuity, or retirement plan; and contingent rights in unvested benefits.
• The parties’ rights in property.
• A provision granting, reserving, or denying spousal support.
• If spousal support is nonmodifiable, a provision to that effect.

Divorces with minor children—additional required provisions. §1.55.

• A prohibition against moving the children’s residence outside Michigan or, in the case of a joint custody arrangement, a relocation agreement or mandated language prohibiting moving the children’s residence more than 100 miles away.
• A requirement that the custodial parent promptly notify the Friend of the Court in writing of any change of the children’s address.
• A statement by the court declaring the children’s inherent rights and establishing the rights and duties as to the children’s custody, support, and parenting time.

As everything else cost of divorce in Michigan has gone up in many jurisdictions. My prices have not raised in 4 years, in this economy how can we.
http://goodmorningflint.blogspot.com

DID YOU KNOW THAT-Modification of judgment provisions. §1.62.
Generally, divorce judgment provisions regarding child custody, parenting time, child support, and periodic spousal support are modifiable; property division and alimony in gross provisions are not.


You divorce forms in Michigan can be found in the County Law library and at book stores. With your family at stake I would suggest you seek legal counsel first.
http://occupyflintlegal.wordpress.com

DID YOU KNOW THAT-Relief from judgments.
Rehearing or new trial. §1.64.
May be ordered on a party’s motion filed within 21 days of entry of the judgment or on the court’s initiative during the same period (the order on the court’s initiative must specify the grounds).
The motion will be granted if a party’s substantial rights are materially affected by

• irregularity in the proceedings
• the prevailing party’s fraud or misconduct
• decision against the great weight of the evidence
• newly discovered material evidence that could not with reasonable diligence have been discovered and produced at trial
• the court’s error of law or mistake of fact
• void judgment
• any other reason justifying relief from the judgment

On a motion for a new trial, the court may

• set aside the judgment
• take additional testimony
• amend findings of fact and conclusions of law
• make new findings or conclusions and enter a new judgment

Amendment or correction. §1.65.
At any time, the court may amend the judgment to correct clerical or inadvertent errors; no change in circumstances is required.
A motion to amend on other grounds must be brought within 21 days after entry of the judgment.


Michigan divorce process take 180 if there are minor children involved and 60 days if there are not.
http://yoursocialmediasolution.com

DID YOU KNOW THAT-Setting aside judgments. §§1.67–1.72.
The parties’ stipulations to set aside—generally valid.
The defendant over whom jurisdiction was acquired but who did not know of the divorce judgment must file a motion for relief within one year after entry of the judgment. He or she must show adequate reason for relief and that innocent third parties will not be prejudiced.
Otherwise, on a motion brought within one year, a judgment may be set aside

• for mistake, inadvertence, surprise, or excusable neglect
• for newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial
• for fraud (intrinsic or extrinsic), misrepresentation, or other misconduct
• for void judgment
• because the judgment has been satisfied, released, or discharged; a prior judgment on which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application
• for any other reason justifying relief

See §§1.68–1.71 for further explanation of these grounds.
A motion to set aside a default judgment (except those based on lack of jurisdiction over the defendant) may be granted only if good cause is shown and an affidavit of meritorious defense is filed. Good cause requires a showing that

• there was substantial defect or irregularity in proceedings
• a reasonable excuse exists for the defendant’s failure to plead
• allowing the default to stand would cause manifest injustice

The court may also set aside a default judgment under MCR 2.612, Relief from Judgment or Order.
Enforcement of divorce judgments. §§1.74–1.78.
The court has inherent authority as a court of equity to enforce its own directives. The court may enforce provisions in the divorce judgment that the parties agreed to even if the court would not have had authority to order them without the parties’ consent.


If  you have additional questions please call 235-1970 or contact through http://attorneybankert.com

What is the Bankruptcy Estate? 235-1970

WHAT IS THE PROPERTY OF THE ESTATE IN BANKRUPTCY

Many divorcing couples also have financial problems leading to Bankruptcy.

A. Included Property

§17.5   11 USC 541 sets forth what is and what is not property of the bankruptcy estate. Generally, the bankruptcy estate consists of everything—“all legal or equitable interests of the debtor in property as of the commencement of the case”—with certain exceptions. Property of the estate also includes the following:

• interests in property recovered by the trustee or debtor
• interests in property preserved for the benefit of or ordered transferred to the estate
• inheritances, property settlements, or life insurance policies if entitled to receipt within 180 days of the petition date
• proceeds of estate property
• funds contributed to 11 USC 529 educational plans over a certain amount
• undivided co-ownership interests

Posted here by Flint Bankruptcy  / Divorce Attorney Terry Bankert 235-1970. See Http://www.attorneybankert.com

Property becomes estate property even if there are transfer restrictions on it or if the applicable agreements contain conditions related to the debtor’s insolvency or financial condition, or the commencement of a bankruptcy case (so called ipso facto clauses). However, the estate may not possess an interest greater in the property than the debtor had at the start of the case. In a Chapter 7 case, the bankruptcy trustee must administer all property of the estate by selling, or otherwise liquidating it if it can be liquidated, and reducing claims and causes of action to judgments that can be collected. Any property that is held by others, either wrongfully or not, must be brought into the bankruptcy case (by agreement or order) and be administered.

Timing also plays a role in whether certain assets are considered part of the estate. If a debtor becomes entitled to a divorce settlement, bequest, devise, inheritance, or the proceeds of life insurance within 180 days of the filing, these assets become property of the estate.

Importantly, exempt assets, §17.7, constitute property of the bankruptcy estate at the start of the case.

B. Excluded Property

§17.6   Items excluded from property of the estate are different from exempt assets because exempt assets are still part of the estate where excluded items never become part of the bankruptcy estate. Excluded items include the following:

• postpetition earnings of the debtor in a Chapter 7 case (although these earnings are included in a Chapter 11, 12, or 13 case)
• in general, property acquired postpetition (subject to exceptions noted in §17.5)
• property held for the benefit of the debtor in a trust that restricts transfer
• any power the debtor may exercise solely on behalf of someone else
• any interest of the debtor as a lessee under a lease of real property (not residential) that expired before the case or that expires during the case
• eligibility to participate in programs authorized under the Higher Education Act of 1965
• certain interests of the debtor in liquid or gaseous hydrocarbons
• funds placed in an educational individual retirement account or 11 USC 529 plan account in the 365 days before the petition, up to $5,475 of funds placed into the account between one and two years before the petition, and everything placed into the account more than two years before the petition
• amounts withheld and placed into an Employee Retirement Income Security Act of 1974 (ERISA)-regulated employee benefit plan, deferred compensation plan, or tax-deferred annuity

A full list of the items that are not included in property of the estate is found in 11 USC 541(b)(1)–(8). A divorcing client should contact bankruptcy counsel to determine the effect of these exemptions on divorce proceedings.

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 12/16/2011).

FACING BANKRUPTCY?

When FACING BANKRUPTCY you are humbled and confused. The paperwork required will add to that confusion. Contact Flint Bankruptcy Attorney Terry Bankert 810-235-1970 or through his web page at http://www.attorneybankert.com/

Flint Divorce Lawyer represents Adams and Eves.

Adam and Eve were followed by families where matrimony turned to acrimoney For an Adam ,Divorce can be a difficult process, the same  for Eve. If you have made that tough decision contact Flint Divorce Lawyer Terry Banket. Even in the best of circumstances, tempers may run high, and every decision can seem to be more stressful than the last. It is only human to find yourself reacting emotionally at certain stages of a divorce, but it is important to remember that your actions throughout the process can affect your familial, emotional, and financial situation for years to come. Flint Divorce Lawyer says Following are some "do's and don'ts" for the divorce process.






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 Labels: alimony, Child Neglect, child support, Flint Custody, flint divorce, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/





http://terrybankert.blogspot.com/2011/03/1st-eve-adam-then-flint-divorce-by.html

DIVIDING MARITAL ASSETS IN A DIVORCE

 Most of what we have after working our lives can  found in our homes and retirements. Considering the housing market today most families have just one asset.

In your divorce do not let your divorce attorney treat your only assets the retirement as an after though to be considered only at the end.

Look at the contrast  spousal support is vigorously negotiated, businesses are duly valued, and child custody issues are given their due. But in most divorces  the specific terms  on dividing the retirement plans  are not negotioated.

Divorce lawyer  lazily use the  same boilerplate text  inserting it nto the Judgment to divide up retirement plans as if they are all one and the same.  In the profession  there is still a lack of education in this area that often leads to post-judgment issues and malpractice claims.


Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10


WHAT ARE RETIREMENT PLANS



There are three basic types of retirement plans; qualified, non-qualified and tax advantaged.


THE EMPLOYER PUTS AWAY MONEY FOR THE EMPLOYEE

QUALIFIED PLANS THAT ARE DIVISABLE BY A QDRO ARE  ERISA PLANS 401K, 403B'S, 4577, PROFIT SHARING AND THE GRANDDADDY OF THEM ALL THE QUALIFIED BENEFIT PENSION PLAN
QUALIFIED PLANS ARE DIVISABLE BY A QDRO- are those that are covered by ERISA (the Employee Retirement Income Security Act of 1974, as amended) and receive special tax-qualified treatment. They must abide by certain rules and regulations set forth by ERISA and the IRS Code. For example, in order to remain “qualified”, the plan administrator must follow requirements in terms of funding the plan, anti-discrimination rules (i.e. not putting in 5 times as much money for your favorite executives), and tax reporting. Depending on the type of plan set up, employees (and/or employers) put money away for the employee (plan “participant”) and those funds are earmarked for retirement. Some examples of qualified plans are 401k’s, certain 403b’s, 457 plans, profit sharing plans and qualified defined benefit pension plans.

THE EMPLOYER PUTS AWAY MONEY FOR THE EMPLOYEE BUT IS OUT OF COMPLAINANCE AS TO A FEW RULES

A non-qualified plan , THIS IS NOT DIVISABLE BY A QDRO, does not comply with ERISA regulations. Funds set aside in non-qualified plans are still ear-marked for retirement; however, they often don’t receive the same protection and special tax treatment as funds in a qualified plan.

NON QUALIFIED PLANS; STATE OF MICHGIAN, CIVIL SERVICE, MILITARY, RAILROAD SOME PRIVATE THESE ARE N OT DIVISABLE BY A QDRO
 Examples of non-qualified plans include the State of Michigan plans, Civil Service, Military and Railroad Board Plans. In addition, corporate employers will sometimes create non-qualified plans that only benefit highly paid employees. For example, suppose employer XYZ wants to retain certain employees but they are already fully funded in their qualified plan benefits. XYZ may choose to set up a non-qualified deferred compensation plan as a special incentive for those employees to stay with the firm. These types of plans, again, are not covered by ERISA nor are the funds guaranteed to be paid to the employees.

TAX ADVANTAGE PLANS, NO QDRO NECESSARY, EXAMPLES ARE; IRA, ROTH IRA, SEP IRA AND NON QUALIFIED ANNUITIES

The third basic type of plan is a tax advantaged plan. These are not generally sponsored by an employer, however, the funds do grow income tax deferred until retirement. Examples include regular IRA’s, Roth IRA’s, SEP IRA’s and non-qualified annuities. A tax-advantaged plan typically can be divided as a non-taxable event (Per IRS Code Section 408d); however, a QDRO is not necessary for the division. (see Appendix G). However, it is very important that the attorney determines (while the case is pending) what documentation will be needed by the account custodian. Examples include a transfer letter signed by both parties, a True Copy of the JOD and/or a specific form provided by the custodian. As is true with any asset transfer, it’s best to assume there will not be much cooperation between the parties after the judgment has been entered.

ONLY QUALIFIED PLANS ARE DIVISABLE BY A QDRO

It is extremely important to keep in mind that only qualified plans are divisible via a Qualified Domestic Relations Order (QDRO). In other words, you may (or may not) be able to divide the assets in a non-qualified plan with a different instrument, but attorneys should expect that a QDRO will not be acceptable and that the assets may not be divisible at all. This is a common mistake made by attorneys who assume that all plan assets are divisible. The worst time to discover that this isn’t the case is after the judgment has been finalized.


THE HISTORY OF QDRO
Qualified Plans and Divorce: Historical Perspective

ANTI A;LIENATION CLAUSES CAUSED MUCH CONFUSION


"Prior to 1984 and the implementation of the Retirement Equity Act, which amended ERISA, if a plan assigned away an interest in a qualified plan from one person to another, this was viewed as a violation of ERISA’s “anti-alienation” clauses and disqualified the plan for tax purposes. In other words, before 1984, if Acme Widgets allowed Joe Smith to transfer to his ex-wife a portion of his 401k plan to her, pursuant to his divorce, the entire plan would become disqualified. In plain English; all plan participants (not just Joe) would receive their plan contributions and earnings back and would owe taxes and penalties on it."



"ERISA’s anti-alienation clause created a tremendous problem for divorcing spouses and their attorneys. Additionally, the IRS, the Department of Labor and each individual State had their own opinion as to whether or not non-divisible retirement assets should actually be included as marital property in a divorce."

IN 1984 QDRO SOLVED MUCH OF THE PROBLEM

"Then, in 1984, the Retirement Equity Act amended ERISA to allow for transfer of qualified plan assets from the employee (or plan participant) to an alternate payee pursuant to a domestic relations matter. However, the only document acceptable for effectuating the transfer would be a Qualified Domestic Relations Order, which of course needed to follow some very specific and strict rules in order for the plan to retain its qualified status."

WHAT IS A QUALIFIED DOMESTIC RELATIONS ORDER OR QDRO?


"A QDRO is a domestic relations order which creates or recognizes an alternate payee’s rights to receive benefits payable to a participant under a specific retirement plan. It is technically only a DRO (Domestic Relations Order) until it is approved by the Plan administrator (not the state court judge). ERISA awarded the Plan Administrator the power to determine if an Order is a DRO or a QDRO. Consequently, this authority gives an outside, third party a tremendous amount of power to effect outcomes in divorce cases. Their role cannot and should not be underestimated by the attorneys involved in the case."

SPOUSES AND CHILDREN CAN USE THIS INSTURMENT

"As to who qualifies as an alternate payee, it must be a spouse, former spouse, child or dependant of the participant. Therefore, it can be inferred that as long as a case is pending, a QDRO can be entered and approved (and the funds distributed) even if the parties are still married. If the purpose of the QDRO is to pay for child support in arrears, the child would be the alternate payee and any taxes owed."

BASIC COMPONENTS OF QDRO

"In order to be a QDRO, on a very basic level, it must be signed by a State court judge (thus mandating the involvement of the State) and it must be pursuant to marital property rights, alimony or child support. Additionally, the QDRO must state which of the three purposes the QDRO is being used for or it will likely get rejected."


DEFINED CONTRIBUTION PLANS


A. What Is a Defined Contribution Plan?



"For simplification purposes, there are two general types of qualified plans. There are actually hybrid plans as well, but that goes beyond the scope of this presentation. The first is a defined contribution plan and the second is a defined benefit plan."

EMPLOYER PUTS MONEY AWAY PRE TAX


"In a defined contribution plan, the employee and sometimes the employer, put money away on a pre-tax (and sometimes post-tax) basis into an investment account that will grow income tax deferred until retirement."

THE VALUE CHANGES BASED ON THE CONTRIBUTION AND THE INVESTMENT TOOLS USED.

" The value of the account will fluctuate based on the investment performance of the underlying assets, be they mutual funds, stocks, bonds or cash. The management of the account is generally up to the employee. There is generally a 10% penalty assessed for withdrawal of these plan assets when the employee is younger than 59 1/2.


WHAT IRS REGULATION HAVE TO BE COMPLIED WITH?

One of the most interesting aspects of dividing defined contribution plans pursuant to a divorce is the little known exception to the 10% penalty that normally applies to pre-59 1/2 distributions. Pursuant to IRS Regulation 72t2c, a distribution to an alternate payee, pursuant to a QDRO will avoid payment of the 10% penalty."
QDRO CAN ALLOCATE WITH OUT 10% PENALTY

" Ordinary income taxes will still be assessed to the alternate payee, at his or her highest marginal tax rate, however, the 10% penalty will not apply.

"This presents a unique opportunity for spouses to pay off debt, free up cash in a non-liquid estate or even pay legal fees."

"Pitfalls: Loan Balances, Vesting, Delayed Plan Contributions, etc.



The first potential pitfall is addressing whether or not loan balances will be included or excluded in the divisible amount when calculating the alternate payee’s share."

"Vesting must also be considered when dividing a defined contribution plan. The vested amount is the amount an employee can take with them when they leave the company. Employees are always 100% vested in their own contributions and the earnings they generate. "


"Another issue that needs to be considered is delayed plan contributions."

"Another often overlooked issue is potential surrender charges. Often times, a school employee will have a qualified 403b plan that is invested inside of an annuity contract. Generally, annuity contracts have surrender charges to get out of them, depending on how long the money has been there. This needs to be addressed in the context of a divorce. Who pays the surrender charge or is it going to be shared? Does anyone even know if there is a surrender charge? Again, attorneys need to do their homework during the Discovery process and find out."

"Defined Benefit Plans

A. What Is a Defined Benefit Plan?



"A defined benefit (pension) plan is the type of plan where the employer promises the employee “X” dollars per month for the rest of their life in retirement. In general, the longer they stay at the company and the higher their salary, the larger the monthly payment. Qualified pension plan benefits are guaranteed by the Pension Benefit Guarantee Corporation (PBGC) up to a set monthly dollar amount ($3,971.59 as a Single Life annuity for those age 65 and older for plans terminating in 2006). Some companies allow their employees to contribute to the pension plans in order to increase the monthly payments. It is extremely important to note that the present value of the employee’s contributions is NOT the actuarial equivalent of the pension’s present value. It is generally worth much more than that and should be evaluated by a pension expert."

HOW SHOULD PENSIONS BE DELT WITH IN A DIVORCE

"There are several ways to address pensions in the context of divorce cases."

GIVE IT A PRESENT DAY VALUE

"The first is to place an actuarial value on the pension and assign it to one party with an offset to the other.
USE A QDRO
"The second is deferred division, which happens via a QDRO.

Division via QDRO: Separate Interest vs. Shared Benefit


" Deferred Division, or QDRO approach. There are two basic ways a pension can be divided via a QDRO, although, again, there are plan-specific exceptions."


THE SEPARATE INTEREST APPROACH
In this approach, the alternate payee controls the timing and receipt of his or her benefits. In other words, the alternate payee may initiate payments upon the participant’s earliest retirement date whether the participant is in pay status or not. Payments are generally based on the alternate payee’s life expectancy and once begun will not cease, even upon the subsequent death of the participant. It’s important to keep in mind that even in this method of division, pre-retirement survivor benefits must be preserved to protect the alternate payee’s interest in the plan. It is often possible for the alternate payee to name a subsequent beneficiary to their benefits upon their death."


Other methods;

"the shared benefit approach. In this approach of division, the alternate payee may not commence benefits until the participant is in pay status and benefits will be based on the joint life of the parties. Both pre and post retirement survivor benefits must be set aside for the alternate payee in order that payments can continue beyond the death of the participant. Upon the death of the alternate payee, there is an automatic reversion of benefits to the participant, either pre or post-retirement. It’s important to note that if the participant is already retired, this is the only option available to the parties."




"Why is it important to know the different division methods when negotiating pension divisions in divorce cases? If you represent the alternate payee, he or she may want to access the benefits at the earliest possible date and be very surprised if they can’t. Alternatively, the participant may feel strongly that their ex-spouse not touch a penny of their retirement until they actually retire! Again, the participant may assume that upon his/her death, the benefits assigned to the alternate payee may revert to him/her. Any of these issues could present an unpleasant surprise that leads to a post-judgment lawsuit. The important thing to remember, again, is that it’s imperative that these issues be discussed, agreed upon and written in the judgment of divorce so that it’s perfectly clear what will and will not happen in the future."



"Entry of the QDRO"


"Most plans will have a QDRO model that they’d like you to use. It’s recommended that you look at the model during the Discovery process for insight into what the plan is looking for, however, it’s not advisable to use it. In fact, the model usually doesn’t benefit the participant or the alternate payee, but rather it actually benefits the plan. It’s easier and less expensive for the plan to review cookie cutter orders instead of actually having skilled employees read individualized QDRO’s. We’ve even seen models that benefit the Alternate Payee at the expense of the Participant. Each QDRO you prepare or review for a client should be tailored to the case at hand and the specific plan you are dealing with."

"Keep in mind that timing for entry of the QDRO is critical. Once the participant has retired or re-married certain options that you were counting on for the alternate payee may no longer be available. Even more important is entry prior to the death of the participant. Remember, the only document that can assign benefits to an alternate payee is a QDRO. The Judgment of Divorce is not sufficient. If the QDRO isn’t entered and approved prior to the death of the participant, you can assume that the alternate payee will receive nothing."



"Once the QDRO arrives at the plan’s front door, it can sit on someone’s desk for as long as they deem reasonable before they make a decision. That could be 2 weeks, 6 months or a year. There is no time limit unless the participant is retired and then they have 18 months to make a decision. It’s a good idea to tell your clients of this timing issue so they know not to expect a distribution 2 weeks post-decree."



"Lastly, when dealing with the Plan, make sure that the plan’s interpretation letter is read and complies with the parties’ agreement. This is an often over-looked last step that must be taken. Even if the QDRO is perfectly prepared, if the plan interprets it wrong, your client could be out of luck. Again, involve your expert to review the Interpretation Letter."


Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com . Principle Source ICLE 09/16/10

OAKLAND COUNTY CHILD CUSTODY BY DIVORCE ATTORNEY

Oakland County Child Custody and child support as discussed by Terry Bankert a Flint Divorce Lawyer. To talk to a divorce Lawyer about your family law issues call 810-235-1970




What follows is principally Oakland Circuit Court ,LC No. 2007-736726-DC, OLGA GENNADYEVNA DEWALD, Plaintiff-Appellee, JEROME WESTFIELD DEWALD, Defendant-Appellant. State of Michigan Court of Appeals, UNPUBLISHED ,May 25, 2010 ,,v No. 294094 ,Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. ,PER CURIAM.

Note this opinion has been altered for media presentation see original article at [1].





FATHER Defendant appeals as of right from a n OAKLAND circuit court order granting his motion for relief from a default judgment of filiation, CHILD custody, CHILD parenting time, and child support.



We affirm. AND AGREE WITH THE OAKLAND COUNTY COURT



DIVORCED IN RUSSIA



In June 2006, the parties divorced in Russia.



MOTHER NEEDS ENFORCEABLE MICHIGAN ORDER



In July 2007, MOTHER plaintiff filed a complaint in Michigan seeking an order awarding her custody of the parties’ two minor children and child support.



FATHER ON PAROL THOUGHT TO HAVE RETURNED TO RUSSIA



According to the complaint, defendant “was on parole for larceny by conversion and is

suspected to have illegally moved back to Russia.”



MOTHER TRIED TO SERVE AT MICHIGAN ADDRESS



Plaintiff tried unsuccessfully serving the summons and complaint on defendant at an address in East Lansing.



COURT AUTHORIZES ALTERNATE SERVICE



In November 2007, the circuit court authorized alternate service by posting in the Oakland County courthouse and publication in the Oakland County Legal News.

THREE WEEK PROCESS

After posting and publication took place over the course of three weeks in December 2007, on January 24, 2008 plaintiff filed an application for a default of defendant, which the court clerk entered the same day.



02/29/2008 COURT ENTERS A DEFAULT JUDGEMENT

On February 29, 2008, the circuit court entered a default judgment of filiation, custody, parenting time and child support.

05/2009 COUNRT ENTER A BENCH WARRANT RE: UNPAID CHILD SUPPORT OVER $10,000



In early May 2009, the circuit court ordered that a bench warrant issue for defendant’s

arrest on the ground that he had failed to appear at a show cause hearing concerning his unpaid

child support, which exceeded $10,000.

05/2009 FATHER PRESENTS HIMSELF AND WARRANT LIFTED

Later in May 2009, the circuit court discharged the bench warrant after defendant had appeared “in friend of the court” on May 18, 2009.



FATHERS SAYS THERE SHOULD NOT HAVE BEEN AN ORDER HE WAS NOT NOTIFIED

In July 2009, defendant moved for relief from judgment under MCR 2.612, arguing that he never

received notice of plaintiff’s complaint or the default judgment, …



FATHER SAYS MOM LIED SHE KNEW WHERE HE WAS, IN RUSSIA

and that plaintiff fraudulently misrepresented to the court that she did not know his address in Moscow. In an August 2009 addendum to the motion for relief from judgment, defendant insisted that the default judgment against him “[wa]s void for lack of personal jurisdiction.”



COURT AFTER FOUND MOTHER KNEW WHERE HE WAS



After a lengthy hearing, the circuit court on August 12, 2009 granted defendant relief from judgment pursuant to MCR 2.612(C)(1)(f), finding that plaintiff knew defendant’s address in Moscow but did not disclose it to the court or attempt to serve him there, despite ,



(1) having many contacts with defendant

between the filing of the Michigan custody action and the circuit court’s entry of the default

judgment, and



(2) serving defendant successfully at his Moscow address in relation to a lawsuit

initiated in Russia.

THE CIRCUIT COURT ORDER

The circuit court’s order read, “The relief from judgment is granted. Support

arrearage and custody and parenting time provision is set aside. There is no child support

arrearage. This order shall be presented to the U.S. Embassy for return and issuance of passport.

Retroactive support is reserved.”1



FATHERS SAYS COURT FOUND HIM THE WINNER AND DID NOT GIVE HIME THE PRIZE.



Defendant avers on appeal that the circuit court failed to recognize the nullity of its

default judgment, its lack of personal jurisdiction over him, its erroneous reservation of the

retroactive child support issue, and its error in not granting relief under MCR 2.612(C)(1)(d)

instead of subrule (f).



THE MICHIGAN COURT OF APPEALS IS REVIEWING TO DETERMINE IF THE OAKLAND COUNTY CIRCUIT COURT MADE A MISTAKE



We review for an abuse of discretion a trial court’s ruling on a motion for

relief from judgment. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial

court abuses its discretion only when it selects a decision that falls outside the range of

reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719

NW2d 809 (2006).



We review de novo issues of statute and court rule application and

interpretation, constitutional issues, and whether a court possesses personal jurisdiction over a

litigant. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); In re Terry, 240 Mich

App 14, 20; 610 NW2d 563 (2000); In re Hawley, 238 Mich App 509, 511; 606 NW2d 50

(1999).



Under MCR 2.612(C), the following circumstances may warrant a grant of relief from a

judgment:



(1) On motion and on just terms, the court may relieve a party or the

legal representative of a party from a final judgment, order, or proceeding on the

following grounds:

* * *

(c) Fraud (intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party.

(d) The judgment is void.

(e) The judgment has been satisfied, released, or discharged; a prior

judgment on which it is based has been reversed or otherwise vacated; or it is no

longer equitable that the judgment should have prospective application.

(f) Any other reason justifying relief from the operation of the

judgment.

(2) The motion must be made within a reasonable time, and, for the

grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the

judgment, order, or proceeding was entered or taken. A motion under this subrule

does not affect the finality of a judgment or suspend its operation.

(3) This subrule does not limit the power of a court to entertain an

independent action to relieve a party from a judgment, order, or proceeding; to

grant relief to a defendant not actually personally notified as provided in subrule

(B); or to set aside a judgment for fraud on the court.



THE COURT OF APPEALS SAID THE LOWER COURT CAN DESIGN THE RELIEF FROM JUDGEMENT, THE CASE DOES NOT JUST GO AWAY



We conclude that the circuit court did not abuse its discretion in granting defendant relief

from judgment pursuant to MCR 2.612(C)(1)(f), and that the court properly continued to

exercise personal jurisdiction over defendant.

THE COURT DID RECOGNIZE THE NULLITY AND ELIMATED ARREARAGES

Contrary to defendant’s argument, the circuit court did not refuse to recognize the nullity of the default judgment against him. “It is well settled that judgments that have been set aside are nullities.” Smith v MEEMIC Ins Co, 285 Mich App 529, 532; 776 NW2d 408 (2009).





As reflected in the language of the circuit court’s August

12, 2009 order, the court remained well aware that in granting defendant relief from the February

2008 default judgment it was rendering the default judgment a nullity;



THE COURT CONTINUED TO EXPLAIN

A. as we have noted, the court ordered that it was setting aside the default judgment’s “[s]upport arrearage and custody and parenting time provision[s],” and that



B.“[t]here is no child support arrearage.”



THE COURT THEN GAVE THE PARTIES A NEW START TO LITIGATE THE ISSUES



At the hearing, the circuit court additionally set the matter for trial and instructed the parties to begin discovery and negotiations concerning the issues of child support and custody.



THE OAKLAND COUNTY FAMILY COURT USED THE RIGHT RULES



Also contrary to defendant’s position on appeal, the circuit court properly invoked MCR

2.612(C)(1)(f) as the basis for granting him relief from the default judgment. Generally, to

justify a court’s grant of relief under subrule (f), three requirements must exist:



“(1) the reason for setting aside the judgment must not fall under subsections a through e,



(2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and



THE COURT DOES NOT HAVE TO COMMIT AN INJUSTICE TO SOLVE AN INJUSTICE



(3) extraordinary circumstances must exist that mandate setting aside the judgment in order to

achieve justice.” Heugel, 237 Mich App at 478-479. However, the Court in Heugel, id. at 481,

reaffirmed that “a trial court may properly grant relief from a judgment under MCR

2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under

subsections a through e are present, when additional factors exist that persuade the court that

injustice will result if the judgment is allowed to stand.”

THE OAKLAND CIRCUIT COURT PROPERLY CRAFTED A FAIR DECISION BASED UPON THEIR EXPIERENCE.



“The trial courts must be empowered to draw from their long experience, both with the particular case and from the bench, to determine whether any variables in the case warrant th[e] extraordinary relief” afforded in MCR 2.612(C)(1)(f). Id. at 480, quoting Kaleal v Kaleal, 73 Mich App 181, 189; 250 NW2d 799

(1977).



Subsection (f) invests “the court with a grand reservoir of equitable power to do justice

in a particular case and vests power in courts adequate to enable them to vacate judgments

whenever such action is appropriate to accomplish justice.” Heugel, 237 Mich App at 481

(internal quotation omitted).

BUIT FATHER SAID HE NEVER GOT THE PAPERS , HIS PAROL AGENT TOLD HIM

Defendant testified that he never received service of any proceedings in plaintiff’s

Michigan custody action, and asserted in an affidavit that he had no knowledge of the case until

his parole officer in Michigan apprised him of it.

MOTHER SAYS SHE TOLD HIM IN 12/2008

Plaintiff estimated that she first mentioned the Michigan custody case to defendant in December 2008.

THE PARTIES AHD LIVED IN TWO LOCATIONS IN RUSSIA

The parties’ testimony agreed that over the course of their marriage, they lived at two primary locations in Moscow.



MOTHER SAID HE GOT THE PAPERS AT ONE OF THE ADDRESSES



Defendant recounted that he had lived at one of these locations as his permanent address between August

2006 and September 2008 and from May 2009 to the present; plaintiff confirmed that in October

2007 she had commenced litigation against defendant in Russia and that her Russian attorney

achieved service of the complaint on defendant at one of the two Moscow addresses they had

shared. Plaintiff recalled that she had forwarded to her counsel in the Michigan custody matter

the two addresses likely occupied by defendant in Moscow.

THE PARTIES HAD COMMUNICATION BUT MOTHER NEVER BROUGHT UP WHAT SHE WAS DOING IN MICHIGAN.

The parties did not dispute that over the course of repeated contacts, by email and otherwise, between 2006 and May 2008, plaintiff never mentioned to defendant the Michigan custody action or the default judgment.



IT WOULD HAVE BEEN UNJUST TO LET THE DEFAULT STAND



Given the ample evidence in this case supporting the circuit court’s findings that plaintiff had neglected to

properly serve defendant, despite possessing knowledge of his likely whereabouts that she did

not share with the court, an injustice would result if the court permitted the default judgment to

stand. Consequently, the circuit court acted within its discretion in granting defendant relief

under MCR 2.612(C)(1)(f).



HERE IS THE POINT FATHER DID NOT GET THE ORIGIONAL PAPER WORK SO THE ORDER DERIVED FROM THAT MUST FALL. BUT BY APPEARING TO PROTEST THE JUDGMENT HE IN FACT HAS FALLEN UNDER THE JURISDICTION OF THE COURT THAT CAN NOW MOVE FORWARD.



We reject defendant’s contention that the circuit court lacked personal jurisdiction over

him because he never received service of process. Our review of the record reveals that the

circuit court possessed personal jurisdiction on the basis of defendant’s general appearances in

the court.

FATHER ENTERD A GENERAL APPEARENCE

A party who enters a general appearance and contests a cause of action on

the merits submits to the court’s jurisdiction and waives service of process

objections. Generally, any action on the part of a defendant that recognizes the

pending proceedings, with the exception of objecting to the court’s jurisdiction,

will constitute a general appearance.

FATHER CREATED AN APPEARANCE ON THE FILE

Only two requirements must be met to render an act adequate to support the inference that there is an appearance:

(1) knowledge of the pending proceedings and (2) an intent to appear.

FATHER THEN SUBMITTED TO THE COURTS JURISDICTION OR CATCH -22

A party that submits to the court’s jurisdiction may not be dismissed for not having received

service of process. MCR 2.102(E)(2). [Penny v ABA Pharmaceutical Co (On

Remand), 203 Mich App 178, 181-182; 511 NW2d 896 (1993), overruled in part

on other grounds in Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 293; 731

NW2d 29 (2007).]



FATHERS PROCESS



In this case, before defendant sought relief from the default judgment and contested

plaintiff’s failure to serve him,

(1) he appeared at the friend of the court on May 18, 2009,

(2) he filed a motion to reduce the amount of child support the circuit court had ordered him to pay in

the default judgment,

(3) he requested a waiver of motion filing fees,

(4) he and plaintiff moved to opt out of friend of the court services,



(5) he negotiated a proposed stipulated order with plaintiff regarding child support, and

(6) he appeared via telephone at a July 8, 2009 hearing and expressed his desire to stipulate to a proposed order on the record, although the circuit court refused to allow the parties to opt out of friend of the court services. These actions establish that defendant had knowledge of the custody proceedings, intended to appear, and in fact made general appearances, thus submitting to the circuit court’s jurisdiction. Penny, 203 Mich App at 181-182. Moreover, at the hearing on the motion for relief from the default judgment, defense

counsel repeatedly conceded that the circuit court had personal jurisdiction over defendant and

that he wanted to continue litigating the issues of parenting time, child support, and custody.



ONCDE YOU ALLOW JURISDICTION TO ATTACH YOU CANNOT OBJECT TO IT.



Defense counsel’s affirmations of the circuit court’s personal jurisdiction constitute a waiver to

any present objections by defendant, which extinguishes any personal jurisdiction-related error.

Lease Acceptance Corp v Adams, 272 Mich App 209, 229; 724 NW2d 724 (2006) (“Challenges

to personal jurisdiction may be waived by either express or implied consent.”) (internal quotation

omitted); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d

805 (2003) (noting that “[a] party may not take a position in the trial court and subsequently seek

redress in an appellate court that is based on a position contrary to that taken in the trial court”)

(internal quotation omitted).

WHAT THE COURT DIOD WAS TO SET ASIDE A JUDGEMENT REACHED BY FRAUD

Although defendant submits that the circuit court erred in relying on Penny, 203 Mich

App 178, defendant appears to confuse the circuit court’s holdings. The court set aside the

default judgment against defendant on the basis of its conclusion that as a result of fraud by

plaintiff, defendant did not receive proper service of the complaint or notice of the default and

default judgment against him.

ONCE THE PRIOR ORDER SETR ASDIE THE COURT HAS CONTINUING JURISDICTION

The circuit court did not find that, because defendant had

appeared after entry of the default judgment, he made an appearance with respect to that default

judgment. Instead, the circuit court merely and correctly determined that it had continuing

subject-matter jurisdiction over the custody issue, MCL 722.26; Harvey v Harvey, 470 Mich

186, 192; 680 NW2d 835 (2004), and personal jurisdiction over defendant after he made general

appearances in the circuit court.

FATHER SAYS THE COURT VIOLATED HIS DUE PROCESS

Defendant also claims that the circuit court violated his due process rights..[FOOTE NOTE 2]





The failure of service of the complaint or default and default judgment on defendant deprived him of

procedural due process because the failure of service prevented him from having an opportunity

to be heard concerning the child custody, support, and parenting time matters. Krueger v

Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981).

LACK OF DUE PROCESS SET ASDIE THE JUDGEMENT BUT THE CASE CONTINUES

Although the initial lack of service deprived defendant of due process, the circuit court ultimately set aside the default judgment and directed that the parties litigate the issues anew. And, as noted, defendant made general appearances and submitted to the circuit court’s personal jurisdiction over him. Penny, 203 Mich

App at 181-182; see also In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985) (“A party

who enters a general appearance and contests a cause of action on the merits submits to the

jurisdiction of the court and waives service of process objections.”).





The only case defendant cites in support of his due process argument, Armstrong v

Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), does not apply to the instant

circumstances. In Armstrong, id. at 547-548, a court terminated the petitioner’s parental rights to

his daughter without notice in the course of an adoption proceeding.



The United States Supreme Court held that the lack of notice combined with the resultant burden of proof imposed on the petitioner when he eventually sought relief combined to violate his constitutional rights:



Had the petitioner been given the timely notice which the Constitution

requires, the . . . moving parties . . . would have had the burden of proving their

2 Defendant neglected to set forth this issue in his appellate statement of questions presented,

rendering it technically not properly before the Court. MCR 7.212(C)(5); English v Blue Cross

Blue Shield of Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004).

case as against whatever defenses the petitioner might have interposed. It would

have been incumbent upon them to show not only that [the adoptive father] met

all the requisites of an adoptive parent under Texas law, but also to prove why the

petitioner’s consent to the adoption was not required. Had neither side offered

any evidence, those who initiated the adoption proceedings could not have

prevailed.



Instead, the petitioner was faced on his first appearance in the courtroom

with the task of overcoming an adverse decree entered by one judge, based upon a

finding of nonsupport made by another judge. As the record shows, there was

placed upon the petitioner the burden of affirmatively showing that he had

contributed to the support of his daughter to the limit of his financial ability over

the period involved. The burdens thus placed upon the petitioner were real, not

purely theoretical. For it is plain that where the burden of proof lies may be

decisive of the outcome. Yet these burdens would not have been imposed upon

him had he been given timely notice in accord with the Constitution. [Id. at 551-

552 (internal quotation omitted).]

HERE FATHER HAD THE SLATE WIPED CLEAN

Here by contrast, defendant has already obtained relief in the form of wiping the slate clean in

these custody proceedings through the circuit court’s grant of his motion for relief from the

default judgment. Because defendant has the opportunity to litigate the custody issues anew, his

due process rights remain intact.

THE OAKLAND COURT WAS FAIR

With respect to defendant’s suggestions that the circuit court should not have granted

relief under MCR 2.612(C)(1)(f) “if an equally plausible alternative exists that will provide the

same result,” and that the circuit court harbored a bias against him, defendant has abandoned

these claims by neglecting to refer to binding authority in support of them. Mitcham v Detroit,

355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, regarding defendant’s judicial bias

claim, we have discerned nothing in the record tending to substantiate this assertion, and his bias

claim has become moot given that a new judge has been appointed to preside over his case.

Detroit v Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008).3

Affirmed.

MOTHER WON FATHER HAS TO PAY COSTS

Costs to plaintiff as the prevailing party on appeal. MCR 7.219(A).



Posted here by

Terry Bankert

http://attorneybankert.com/

Of

http://dumpmyspouse.com/





see

[1]

Original Opinion

http://www.icle.org/contentfiles/mlo/unpublished/20100525_294094.pdf



FOOT NOTE 1 In a subsequent motion for reconsideration, defendant maintained that the circuit court had

mistakenly granted relief under MCR 2.612(C)(1)(f), instead of subrule (d), because the court

never obtained personal jurisdiction over him. The circuit court denied the motion, discerning no

palpable error in its prior ruling.



FOOT NOTE 3 To the extent that defendant also urges this Court to peremptorily reverse the circuit court

pursuant to MCR 7.211(C)(4), we decline to consider this proposal because defendant did not

properly raise it in a motion before this Court, MCR 7.211(A)(2), (3), and he offers no authority

establishing the propriety of peremptory reversal



CAP HEADLINES ARE from Terry Bankert along with (trb), other extnal citations may be used.

FLINT DIVORCE LAWYER, TIGER WOODS AND CHILD CUSTODY CASE.

Child Custody Issues discussed by Flint Divorce Lawyer Terry Bankert:

TO FLINT PARENTS ORDERS FOR CUSTODY AND KEEPING IT ARE CRITICAL

We read daily the turmoil that custody disputes can cause the rich and famous. This same turmoil confront every parent in divorce.[trb]
And one source familiar with the situation tells … that the couple ,… ( Elign Nordegren
and Tiger Woods)…will share joint custody of the children if the divorce goes through.[4]


FLINT Divorce;

DID YOU KNOW:

Grounds for divorce.

“[T]here 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.”[3]

HOW MANY TIMES IS THIS PART VIOLATED?

The plaintiff may not include any other explanation of the grounds in the complaint. The defendant may admit or deny the grounds. The court may consider an admission but is not bound by it.[3]

FLINT DIVORCE Child custody;

DID YOU KNOW THE FOUNDATION OF A CUSTODY ARGUMENT IS CUSTODIAL ENVIRONMENT:

There is an established custodial environment if over an appreciable period of time, the child naturally looks to the custodian in that environment. The court must also consider

the age of the child,

the physical environment, and

the inclination of the custodian and the child as to the permanency of the relationship.

The court makes a factual determination regarding whether there is an established custodial environment; the court is not bound by the parties’ stipulation.[3]


THE NEXT STEP IF NO PRIOR ORDER IS A BEST INTEST ANALYSIS


Best interests of the child.

The best interests of the child is the standard used in custody disputes between parents, agencies, and third parties.

The court must consider each factor and make findings on the record.

The factors need not have equal weight; the court determines the weight of each factor.[3]


Whether the trial court properly denied the plaintiff-father's request for a "best interests" custody hearing by finding he had not made the required demonstration of proper cause or a change in circumstances; [1]



MCL 722.28; Berger v. Berger; Brausch v. Brausch;



Whether plaintiff abandoned his issue by failing to properly brief it and failing to cite to the case record; MCR 7.212(C)(7); [1]



Eldred v. Ziny; Lack of evidence as to proper cause or change in circumstances;

Vodvarka v. Grasmeyer [1]



SUMMARY: Fathers/Plaintiff’s recitation of potential grounds for proper cause center on three facts:

1.Defendant has allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time since the 2005 judgment of divorce;

2. Defendant now works three days a week; and

3.Plaintiff moved and has remarried and his wife has a growing relationship with the children.

Based on these factors, father/plaintiff asked the Oakland County trial court to, in effect, formalize the parties’ informal parenting time arrangement in the wake of a disagreement surrounding the arrangement.[2]



HONORED REQUEST FOR CHANGE NOT A SOWRD OF CHANGE



Here the Michigan Court of Appeals could not conclude the Oakland Circuit Court ,Family Division court's determination not to hold a best interests hearing was a palpable abuse of discretion or clear legal error where the fact the defendant-mother voluntarily modified the parenting schedule on occasion to accommodate the plaintiff-father's request for more parenting time should not be used as a "sword to forge a change" in the previously court ordered arrangement, and the remaining factors he cited did not support his claim of error. [1]



WHEN YOU VOTE YOUR FAMILY COURT JUDGES ARE IMPORTANT

In custody cases, all orders and judgments by the trial court shall be affirmed unless “the trial judge 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; Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).[2]



NO CHANGE OF CIRCUMSTANCES



Thus, the Oakland Circuit Court ,Family Division held plaintiff's allegations were insufficient to show sufficient cause or material changes in circumstance and then Michigan Court of Appeals agreed. [1]



POOR PRESENTATION ON FATHERS PART



We observe that plaintiff has abandoned this issue on appeal by failing to properly brief

it. Plaintiff’s recitation of applicable facts contains no citation to the factual record of this case (or any other record). MCR 7.212(C)(7). Plaintiff’s argument is one sentence long and contains no citation to supporting authority. Id. An appellant may not simply announce a position on appeal and leave it to this Court to rationalize the basis for that claim. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).[2]



DIVORCED WITH FOUR CHILDREN



The parties were divorced in November 2005, and had 4 children between 1998 and 2004. [1]

MOM CUSTODY DAD WITH SUBSTANTIAL PARENTING

The original judgment of divorce granted the plaintiff physical custody of the children and granted defendant substantial parenting time. [1]



DAD: SHE LET ME HAVE MORE NOW THE COURT SHOULD TAKE MORE



He argued the trial court erred in denying his motion seeking a best interests hearing based on a demonstration of proper cause or a change in circumstances. [1]

STEP MOMMY GROWING DEMANDS?

Plaintiff alleged defendant had allowed, on an informal basis, plaintiff to exercise a growing amount of parenting time, she now works three days a week, he moved and remarried, and his wife has a growing relationship with the children.[1]

DAD JUST WANTS TO FORMALIZE, STABILIZE THE NEW STATUS QUO

Thus, he asked the trial court to formalize the parties' informal parenting time arrangement to avoid a disagreement about the arrangement. [1]



OH NO FILBER THIS WILL STOP PARENTS FROM COOPERATING

The court concluded to hold as plaintiff requested would discourage custodial parents from permitting a non-custodial parent greater parenting time than granted by court order. Also, the other factors plaintiff cited did not support his claim of error. [1]



THIS SHOULD BE ABOUT THE CHILDREN



Notably absent from his allegations was any recitation of what effects the alleged changes have had or will have on the children. [1]



DADDY JUST THINKING OF HIMSELF AND POSSIBLY STEP MOM

His allegations seemed to focus on what plaintiff wanted - more guaranteed parenting time - and not what impact this change would have on the children. [1]



It is not sufficient to identify material changes in circumstances without linking those changes to their effects on the children.[2]

Posted 5/11/2010

By Terry Bankert

http://attorneybankert.com



See:



[1], from e-journal

Court: Michigan Court of Appeals (Unpublished)May 6, 2010,Case Name: S v. S. ,No. 294259,Oakland Circuit Court ,Family Division, LC No. 04-695786-DM

e-Journal Number: 45737,Judge(s): Per Curiam - Markey, Zahra, and Gleicher



[CAPITALIZATIONS and trb are Terry Bankerts comments]



[2] See [1] from the case



[3]

Michigan Family Law Benchbook



[4]

http://celebs.gather.com/viewArticle.action?articleId=281474978227525