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
Sunday, November 14, 2010
Friday, May 28, 2010
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.
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.
Wednesday, May 12, 2010
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
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
Monday, April 26, 2010
Divorce is emotional and can be violent.
FLINT DIVORCE LAWYER BANKERT COMMENTS ON KIM KARDASHIAN AND DOMESTIC VIOLENCE. POINT OF VIEW:IF THIS HAPPENED IN MICHIGAN.
4/26/2010
Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.
DOMESTIC VIOLENCE
New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]
DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.
Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.
NO POLICE CALLS, NO PPO
Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]
In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable fear of violence.
CONTROLLING
The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]
During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]
DOMINATING
"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]
THEATS OF VIOLENCE TO HER FAMILY
"He threatened to kill me, my family members and the guys that I am dating."
But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]
INDICATORS OF DOMESTIC VIOLENCE
Domestic violence is a pattern of behavior whose purpose is to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org.
Domestic Violence is not limited to physical violence, abusers may use many forms of control against their partners, including
isolation from friends and family;
verbal abuse (belittlement, taunting);
intimidation (destroying property, abusing pets, displaying firearms);
economic abuse (controlling access to money, preventing or interfering with employment);
coercion (threatening to commit suicide or to report incidents to protective services);
use of the children (harassment during parenting time, threatening to kidnap the children);
sexual abuse; and
stalking.
SHOULD SHE HAVE SOUGHT A PPO?
Nobody has a right to hit you. But you have to act. A PPO is one way.
PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.
WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?
What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.
(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.
(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
MCL 600.2950(1).
SHORT TERM MARRAIGE
The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]
Posted here by
Terry Bankert
WWW.ATTORNEYBANKERT.COM
SEE
[1]
http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338
[2]
http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx
[3]
http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/
[4]
http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1
4/26/2010
Terry Bankert a Flint Michigan Divorce Attorney comments on the following celebrity domestic relations and the issue implications from a Michigan Family Law view.
DOMESTIC VIOLENCE
New divorce court papers reveal Kim Kardashian's tumultuous relationship with ex-husband and music producer Damon Thomas, including the claim that Thomas punched Kardashian in the face and slammed her against the wall. [1]
DID YOU KNOW: Domestic violence happens when one household member , spouse , romantic interest or just room mate, chooses to use a pattern of physical assaults, threats of violence, and emotional abuse to maintain power and control over another.
Americas 50 states all have statutes authorizing courts to issue orders of protection to domestic violence victims.
NO POLICE CALLS, NO PPO
Why no police reports? Abject fear. "I thought about calling the police but was afraid and decided not to do so," Kardashian reported.[4]
In Michigan, a victim of domestic violence has the option of obtaining a personal protection order (PPO) to stop abusive behavior. PPOs may order a stop to specific actions, such as assaulting, attacking, beating, molesting, stalking, or wounding the petitioner. Additionaly, they may prohibit entering specific premises, usually including the petitioner’s home and place of employment. PPO’s may also prohibit the removal of minor children from the legal custodian, purchasing or possessing a firearm, and any other act that interferes with the petitioner’s personal liberty or that causes a reasonable fear of violence.
CONTROLLING
The papers also claim that Thomas gave her $3,650 to get liposuction, because he wanted her to be "perfect." [1]
During their divorce in 2004, Kim revealed in a sworn testimony that she was instructed to have liposuction, was treated like a maid and that music producer Damon had threatened to kill her.[3]
DOMINATING
"Damon decided what we would do and when we would do it. He was very much the 'King of the castle," Kardashian stated in the documents. [1]
THEATS OF VIOLENCE TO HER FAMILY
"He threatened to kill me, my family members and the guys that I am dating."
But that wasn't the only threat against her life, he repeated it at least 12 times. "At this point, I am frightened by the stories that are repeated to me." [2]
INDICATORS OF DOMESTIC VIOLENCE
Domestic violence is a pattern of behavior whose purpose is to establish power and control over another person through fear and intimidation, often including the threat or use of violence. National Coalition Against Domestic Violence, at http://www.ncadv.org.
Domestic Violence is not limited to physical violence, abusers may use many forms of control against their partners, including
isolation from friends and family;
verbal abuse (belittlement, taunting);
intimidation (destroying property, abusing pets, displaying firearms);
economic abuse (controlling access to money, preventing or interfering with employment);
coercion (threatening to commit suicide or to report incidents to protective services);
use of the children (harassment during parenting time, threatening to kidnap the children);
sexual abuse; and
stalking.
SHOULD SHE HAVE SOUGHT A PPO?
Nobody has a right to hit you. But you have to act. A PPO is one way.
PPOs have two types that may be issued, depending on the relationship between the parties. A domestic relationship PPO enjoins certain assaultive and threatening behaviors when there is a domestic relationship between the parties. A domestic relationship exists if the parties are or have been married, have had a child in common, have lived together, or have dated.
WHAT BEHAVIOR CAN A PPO STOP OR AT LEAST GIVE THE POLICE A REASON TO ARREST?
What acts may a domestic relationship PPO restrict? Petitioners may request that the court prohibit respondents from the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner’s efforts to remove petitioner’s children or personal property from premises that are solely owned or leased by respondent.
(g) Interfering with petitioner at petitioner’s place of employment or education or engaging in conduct that impairs petitioner’s employment or educational relationship or environment.
(h) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner’s minor child or about petitioner’s employment address.
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code (stalking).
(j) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
MCL 600.2950(1).
SHORT TERM MARRAIGE
The two were marred in Las Vegas when Kardashian was 19, Thomas 29. They divorced three years later.[1]
Posted here by
Terry Bankert
WWW.ATTORNEYBANKERT.COM
SEE
[1]
http://abcnews.go.com/Entertainment/slideshow/survivors-abuse-7057338
[2]
http://www.hindustantimes.com/Kardashian-s-bad-marriage/H1-Article1-535226.aspx
[3]
http://www.mirror.co.uk/celebs/news/2010/04/24/court-papers-reveal-kim-kardashian-s-abusive-four-year-marriage-115875-22208181/
[4]
http://www.sheknows.com/articles/814830/kim-kardashian-papers-detail-abuse-at-hands-of-ex-1
Friday, April 2, 2010
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Sunday, March 7, 2010
WHERE TO FILE YOUR CASE
Jurisdiction; venue.
KNOW YOUR CUSTODY,SUPPORT AND DIVORCE RIGHTS. Michigan Divorce Lawyer , Custody and support.
When you file for Divorce you or your spouse must have resided in Michigan for at least 180 days and in the county of filing for at least 10 days. Residence is more than a short stay , it means the place of a permanent home where the party intends to remain.
The 10-day county residency requirement need not be met if there is information that would allow the court to reasonably conclude that the parties’ minor children are at risk of being taken outside the U.S. and kept in a foreign country by a defendant who was born in a foreign country or who is not a U.S. citizen.
Attorney Terry R. Bankert based in Flint Michigan. State Wide Divorce practice in mediation. For information about State Wide Family Law issues in your area go to http://www.dumpmyspouse.com/
At my web site there are many Family law Articles to help you.
KNOW YOUR CUSTODY,SUPPORT AND DIVORCE RIGHTS. Michigan Divorce Lawyer , Custody and support.
When you file for Divorce you or your spouse must have resided in Michigan for at least 180 days and in the county of filing for at least 10 days. Residence is more than a short stay , it means the place of a permanent home where the party intends to remain.
The 10-day county residency requirement need not be met if there is information that would allow the court to reasonably conclude that the parties’ minor children are at risk of being taken outside the U.S. and kept in a foreign country by a defendant who was born in a foreign country or who is not a U.S. citizen.
Attorney Terry R. Bankert based in Flint Michigan. State Wide Divorce practice in mediation. For information about State Wide Family Law issues in your area go to http://www.dumpmyspouse.com/
At my web site there are many Family law Articles to help you.
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