A PUBLIC ATION OF the STATE B AR OF MICHIGAN
Karen S. Sendelbach
FA MILY L AW SECTION Chairperson
Volume 37 Number 8 Norman N. Robbins
IN THIS ISSUE
Chairperson’s Message 3
Editor’s Commentary 5
Has Professional Advertising
had an Effect on the Practice
of Family Law
Quid Pro Quo 7
Ask Professor Lex 8
Recent Cases 12
Berry v Berry
Jones v Giannotti
Havas v Havas
Karchin v Karchin
Aukeman v Aukeman
Leder v Leder
Nolen v Nolen
Tax Trends 17
Legislative Update 20
The Case Of The Issue 24
The Enforcer 25
Letters to the Editor 27
The Wengel Malpractice Trap 29
Ethical Considerations for the 30
Michigan Collaborative Lawyer
Bad Things That Can Happen When 32
Clients Don’t Update Beneficiary
Designations After Divorce
For Sale: Special Issues of The 42
Michigan Family Law Journal
The Michigan Family Law Journal endeavors to establish
and maintain excellence in our service to the Family
Law Bench and Bar and those persons they serve.
Advertise in the
Michigan Family Law Journal FAMILY LAW SECTION
ten times per year, “Listserv”
the Michigan Family Law Journal reaches:
(email Discussion Group)
• Over 3,000 State Bar of Michigan members directly
• Various courts and law libraries the Family Law section sponsors a
• Specialized financial professionals “listserv”, which is “geek-speak” for an
• State and local public officials email discussion group. to be eligible
to join, you must be a member of the
Your ad for services or products –
or your political ad – targets people Family Law section or be a Michigan
you want most and need to reach. judge. if you are eligible and wish to
participate (it is a wonderful opportunity
Cost of ad per issue: $350 – full page to share ideas and solve problems, not
$200 – half page to mention communicating with many
$175 – quarter page fine colleagues), you may initiate your
$100 – eighth page subscription to the Familylaw listserv
For details contact: by going to http://groups.michbar.org/
todd s. selin and click on FamilyLaw. Once there,
c/o Mallory, Cunningham, Lapka & scott, PLLC fill out the form under “subscribing to
605 south Capitol Avenue FamilyLaw” and follow the instructions. if
Lansing, Mi 48933 you have questions, contact elizabeth A.
telephone: (517) 482-0222 sadowski at email@example.com,
or call her at (248) 652-4000.
Michigan Family Law Section
2007-2008 MeetiNG sCHeDULe
ALL MeetiNGs stArt At 9:30 am
Novi Host: Carlo Martina (734) 254-1140 Lansing Host: Meri Anne stowe (517) 347-1440
Wyndham Garden Hotel (248) 344-8512 University Club of MSU (517) 353-5111
42100 Crescent Blvd. • Novi, MI 48875 3435 Forest Road • East Lansing, MI 48910
Ann Arbor Host: Karen sendelbach (734) 994-3000
Weber’s Inn (734) 769-2500
3050 Jackson Road • Ann Arbor, MI 48103
October 6, 2007 ................................................. Novi November 3, 2007 ................................... Ann Arbor
December 1, 2007...................................east Lansing January, 2008 .......................................[no meeting]
February 2, 2008 ........................................ Ann Arbor March 1, 2008 ...................................... east Lansing
April 4, 2008 ...................................................... Novi May 7, 2007 ............................................ Ann Arbor
June 7, 2007 .............................................. Ann Arbor
2006-2007 Family Law Section Officers and Council Members
Chairperson: Expires 2007 Expires 2008 Expires 2009
Karen sendelbach Charlotte Allen Neil Colman Anne Argiroff
Chairperson-Elect: John Forczak Hon. John Hammond Judith O’Donnell
Lorne Gold Phil Navarre traci rink
Treasurer: Jules Hanslovsky rebecca shiemke todd selin
Carlo Martina James J. Harrington iii Mark snover Karen sendelbach
Corresponding Secretary: Barbara Kelly ross stancati Kent Weichmann
Barbara Kelly Carlo Martina Connie thacker Amy Yu
Immediate Past Chairperson: Lisa Sullivan
by Karen s. sendelbach
Chairperson, 2007 – 2008
The practice of family law is one of the most important, working toward improving the laws and systems of justice
challenging and rewarding practices in the law. Unlike other which impact them.
areas of the law which focus on less personal issues, our core
focus and interactions are always with people – complex, The elected Council Members of our Section are a group
emotional, vulnerable and unpredictable husbands, wives, of dedicated and talented leaders who volunteer their time
children, judges, attorneys, referees, evaluators, experts, to serve on these committees, to meet with legislators, to
witnesses – all of whom look to us to provide them with undertake study of new bills and proposed legislation, to
judgment and guidance about their most personal and coordinate continuing legal education training, and to do
precious issues. A good family law attorney can steer a countless other tasks which improve the judicial system of
family toward a fair resolution; an excellent attorney can our state. These Council Members advocate not only for their
help them resolve their matters and move forward on a new, own clients in their own practices, but for the improvement
but more healthy path, and a poor family law attorney can of our laws and justice system. They therefore effectively
exacerbate already existing hostilities and financial issues touch every family and family law practitioner in the state,
and do very real and significant harm to that family. and I am humbled to be selected to lead such an impressive
group of attorneys.
This is a tremendous responsibility which should not be
lightly undertaken, and it is also an enormous privilege. It is I encourage every Section member to become involved
our duty to ensure that we practice at the highest levels of in the Council. As attorneys, we are privileged to have
which we are capable, never allowing ourselves to become had access to the educations we were provided; we are
complacent in our knowledge of the law, new methods of privileged to be entitled to stand and speak on behalf of a
dispute resolution, new tax and other financial issues, and client and to be heard by the Court, and we are privileged
the ever-growing body of psychological research which to be “invited to the table” to participate in decisions of
impacts the family law professional. As the chairperson of enormous impact in our state. With that privilege comes
the Family Law Section, it is my responsibility to lead the responsibility, and I encourage everyone to re-dedicate
Section to assist all of our members to continue to pursue the themselves to giving something back to the profession.
highest level of practice possible, so that together we can
best serve Michigan’s families. Recently, while out working for the Council, I encouraged a
young lawyer to become more active in our practice, only
As a Section, we have much to be proud of. Together, we to be met with the typical refrain that they are “too busy”
have influenced the drafting and passage of many laws with family and work to give back to society and to the
which impact Michigan’s families, and as a result or our practice. Of course, they are very busy; we are all very
dedicated and thoughtful work, we are now routinely busy, but the sacrifice of taking on important work brings
invited to the table to join legislators as they draft new with it the satisfaction of knowing that we accept our roles
legislation regarding family law issues. We are currently as leaders. We have been given great opportunities and
very active in drafting of modifications to the Child Support privilege.
Formula. The opinion of the Section on important family law
matters is sought by the Michigan Supreme Court as well as We are leaders. Our clients look to us to lead them through
the Michigan Court of Appeals on issues of importance to the difficult process of divorce, and to show them the way
Michigan’s families. We serve the families of Michigan by to the best solution. Our state agencies look to our section
to help lead them to the best answers in family law issues. We should not underestimate the importance of our good
Our families look to us to help lead them through everyday leadership to all those whom we lead, and the difference
issues, and our staff and employees ask us to lead our that it can make. Please join us. Breakfast is available for
offices. As lawyers, we are often called upon to lead social at every meeting at 9:00 a.m. and the meetings begin at
and public agencies and community organizations. We 9:30 a.m.
must accept the call to lead and involve ourselves in a way
to use our education, skills and talent to give back to the Schedule of meetings:
profession and people we are privileged to serve.
Saturday October 6, 2007 Wyndam Gardens, Novi
I urge each of you to accept this challenge, and to become Saturday November 3, 2007 Webers, Ann Arbor
involved in the Section. If you are not a member, join us: we Saturday, December 1, 2007 University Club, East Lansing
will endeavor to provide you with the tools and resources to Saturday February 2, 2008 Webers, Ann Arbor
allow you to improve the quality of your practice. If you are Saturday, March 1, 2008 University Club, East Lansing
a Section member, become involved in Section leadership. Saturday, April 4, 2008 Wyndam Gardens, Novi
Our meetings are open to all section members and are Saturday, May 3, 2008 University Club, East Lansing
conveniently located throughout the state. I think you will Saturday, June 7, 2008 Webers, Ann Arbor
find our meetings provide a great deal of information,
thoughtful debate, and interaction with interesting and I look forward to working with each of you during the next
influential people in our field. year.
by norman n. robbins
Has Professional Advertising had an the economic scale that were helped by the legal aid, that
Effect on the Practice of Family Law is, people who could only afford to pay modest fees. They
decided to accomplish this end by only accepting such
“I’m all for progress; it’s change I can’t stand.” matters as uncontested adoptions, uncontested divorces,
change of name and other “simple” matters such as simple
– Mark Twain personal bankruptcies. To be able to do this work profitably
they needed volume. They tried their plan of practice but
Although lawyers had always found unique ways to attract decided it would not work unless they advertised their low
business, they were stopped from advertising by ethical fees along with the matters they handled.
rules written for the various state and local bar associations.
These rules banned any form of advertising whether On February 22, 1976 the two lawyers, with full knowledge
by commercial speech or in print. However in 1976, in that they were violating Disciplinary Rule 2-101 (B) of their
the case of Virginia State Board of Pharmacy v Virginia State Bar, put an advertisement in the Arizona Republic
Citizens Consumer Council the Supreme Court ruled that Daily News stating “legal services at very reasonable fees,”
a law that banned the advertising of prescription drug and listed the fees of certain services. The bar grievance
prices was unconstitutional. This opinion pointed out that committee recommended six months suspension and an
such ads gave important information to the purchaser of appeal, the committee lowered that suspension to one week.
drugs, and that the consumer depended on a free flow of The attorneys appealed to the Arizona Supreme court stating
commercial information. However, the court did point out the ban on advertising was unconstitutional and the court
that such advertisement had to be regulated so as to limit ruled against them. The U.S. Supreme Court then heard the
false, misleading and fraudulent information. case. They stated “The heart of the dispute before us today
is whether lawyers... may constitutionally advertise the prices
One year prior to the Virginia State Board of Pharmacy at which certain routine services will be performed.”
case the Supreme Court subjected lawyers to antitrust
laws by outlawing the minimum fee schedules. I vividly The court considered the following before rendering its
recall those schedules and I am certain that the family law decision.
attorneys were happy to see them go even though our state
1. The adverse effect on Professionalism
bar thought it was a necessary evil.
2. The Inherent Misleading Nature of attorney
It was in 1977 that the U.S. Supreme Court decided in
Bates v State Bar of Arizona, 433 US 350, that advertising
by lawyers was commercial speech protected by the First 3. The adverse effect on the administration of justice.
Amendment. The court however stated that advertisement
by lawyers could be regulated on a case by case basis. 4. The undesirable economic effects of advertising
There have been many cases since, that helped interpert
these regulations and I assume the Supreme Court will 5. The adverse effect of advertising on the quality of
continue to review many more. service
It all started when two attorneys John R. Bates and VanO’Steen 6. The difficulties of enforcement
left their jobs at the Maricopa County Legal Office in 1974
to start their own practice in Phoenix, Arizona. Their After easily disposing of the above matters in a way to reflect
purpose was to render legal services to people just above favorably on lawyer advertising they then decided that the
two attorneys were exercising their right to “commercial as well as the Statue of Liberty, “unadorned law books, the
speech” that is protected by the First Amendment. They inside and outside of a courthouse, columns and diplomas.
ruled that the individual states cannot ban lawyer’s from all Of course such images as your bar logo, a gavel, a robed
advertising but would have the right to regulate it on a case judge and Lady Justice have been permitted.
by case basis. This, of course, left the door open to many
test cases that followed. There are also different rulings as to radio, television,
magazine, news paper and phone book advertisements.
The states may prohibit advertising that is false, misleading One state requires attorneys to get permission for each ad
or fraudulent. They may ban personal solicitation but that is placed. The controls are in place and advertising,
sending personal solicitation letters to prospective clients though disagreeable to many, is working.
was approved. You may give legal advice in your ads but
if you advertise contingent fee services you must state that There is however a lingering fear. If a case like Bates can
the client is expected to pay the costs of an unsuccessful change hundred of years of solid tradition, a practise that
lawsuit. As time goes on there will be more entries on to the was considered to be set in stone, what other established
list of what you can and cannot do. legal precedent, protocol or shibboleth will be shattered?
Lawyers, along with several other professions have valued
Now, how has advertising effected the Family Law branch the right to exercise the rule of “privileged communication.”
of the law? It appears to have had very little effect. It hasn’t Will that continue? Social workers, news reporters, mental
lowered fees. It hasn’t changed the fine quality of services health specialists, even attorneys and doctors have seen
we render. Our efficiency, our volume of work, our work invasions of this right.
product nor our end product has not, in any way that is
noticeable, effected our practice. Will real estate agents, paralegals, bankers and CPA’s
be given limited rights to practice law? Will a law license
There is perhaps one part of advertising that effects all eventually only be required for trial work? Will advertising
lawyers including family law lawyers. As the Florida eventually reduce our profession to just another trade?
Supreme Court pointed out quite succinctly “sharks, wolves, Will all our child custody matters be turned over to the
crocodiles and piranhas” are inappropriate ad images for mental health discipline and our divorce work to probate
lawyers. This rule came last year and muzzled a pair of specialists? Is all this fantasy? Did anyone 50 years ago
attorneys who used a pit bull in a television commercial. The think that you would see advertised in your phone book
bad ads that reflect upon lawyers images or a professional “Unhappy Marriage? (Get) Divorced – you should know
entity harms us all and must be regulated. your rights.”
New rules do list permissible images such as the American What do you think?
eagle, the United State flags and the individual state flags
Quid prO QuO
by norman n. robbins
Did you know that a father was denied credit against Did you know that a decedents alleged unhappiness
current and past support that he owed for social security with his marriage, if proven, may affect the surviving wife’s
dependency benefits his children received on account of recovery for loss of consortium. (Corder v Corder, Cal., No.
his disability, even though the benefits exceeded his child S138666, 7/5/07).
support obligations. (In re Crabtree, N.H., No. 2006-329
6/15/07). Did you know that a mother who had illegally removed
four of the parties children from their home in Mexico was
Did you know that a trial court erred in dismissing ordered to return just two of them as the older children,
a complaint and counter-complaint for divorce filed by ages 10 and 12 were of sufficient age and maturity to
husband and wife after discovering that both committed object going back to their father. (Simcox Simcox, N.D.
adultery. The appellate court stated that no useful purpose Ohio, No. 1:7CV96, 6/29/07).
can be served by legally decreeing continuance of the
marriage. (Boyatt v Boyatt, Tenn. Ct. App; No. E 2006- Did you know that a property settlement agreement
01462, 6/19/07). whereby divorcing parties agreed to “release (each)
absolutely and forever” all rights and claims to child support
Did you know that a man who paid court-ordered against the other “in consideration of the cash obligations
child support after his paternity of a child was declared and transfer of property herein” is unenforceable, (Dahl v
under a default judgment is not entitled to reimbursement Dahl, S.D., No. 24301, 6/27/07).
of those payments following genetic testing disproving his
parentage. (Los Angeles County v James, Cal. Ct. App., Did you know that a court may grant a remarried father’s
No. B187770, 6/19/07). wife the right to visit or exercise her husband’s parenting
time with his children while he was deployed in Iraq. (In re
Did you know that a spouse that receives nondivisable DePaluco, Colo. Ct. App., No. 06CA1478, 7/26/07).
social security retirement benefits can expect the fact that
it may be considered to be a factor in making an unequal Did you know that an adoption of a 22-year-old mother
property division as part of a divorce matter. (Johnson v does not prevent her own biological mother’s rights to seek
Johnson, S.D., No 24023, 6/20/07. visitation with her grandchild. (In re J.E.M. (Handshoe v
Ridgeway), Ind. Ct. App., No 76A03-0612-CV-603,
Did you know that at common law waivers of both 7/23/07).
maintenance and attorney fees were unenforceable if
unconscionable at the time of enforcement. (In re 1 Keler, Did you know that the amount of time that a child
Colo., No. 065C664, 6/25/07). spends in a state after a custody petition was filed may
not be counted as part of the time necessary for homestate
Did you know that a husband and wife who had jurisdiction, (Sareen v. Sareen, Cal. Ct. App., No.
obtained an order of permanent parental responsibility, C053784, 7/17/07).
after agreeing to raise someone else’s child, are obligated
to support that child even though the couple gets divorced.
(In re Rodrick, Colo., No. 06CA0306, 6/28/07).
by harvey i. hauer
Dear Professor Lex: outweighs the possible benefit of transferring custody
to defendant, who does not have these problems. The
I have been retained in what appears to be a trial court’s determination is therefore not contrary to
high conflict custody case. Both parents are good the great weight of evidence.
parents. My client’s primary basis for seeking sole
physical custody of their child is that mother is a In Pitre v Pitre, 2003 Mich App LEXIS 2224, plaintiff was
chain smoker. He is extremely concerned about awarded primary parenting time of the parties’ minor
the detrimental affect that habit may have on children by the trial court. Among the facts presented to the
their child. Do you think that mother’s smoking trial court were that defendant tried to control his smoking,
habit will have a significant impact on the court’s although he admitted that he smoked in the presence of one
determination of physical custody? child who had allergies that were adversely affected by
smoke. The trial court gave a slight advantage to plaintiff.
In Higgins v Loveland, 2004 Mich App LEXIS 2085, one of
Dear Practitioner: the issues before the appellate court, in a change of custody
case, was that the minor child was under doctors’ order
As with nearly all family law cases, knowledge of the facts to avoid cigarette smoke and that plaintiff continued to
is crucial to providing an informed opinion. It would be smoke. The trial court felt that said exposure was relatively
helpful to know the relevant facts of your case, including minor and would not meet the high standard of constituting
whether the child has any current health problems, and “proper cause” to modify the existing custodial environment
what methods, if any, are taken by the smoking parent to of the child. The appellate court, in regards to the smoking
limit or prevent the child’s exposure to the smoke. allegations, held:
In Jordan v Coon, 1998 Mich App Lexis 2032, the court, the evidence was undisputed that the child was
in determining a child custody case, found that factor (d), under doctor’s orders to avoid cigarette smoke and
which states “the length of time the child has lived in a that plaintiff continues to smoke. However, the trial
stable, satisfactory environment and the desirability of court apparently did not consider the smoking issue
maintaining continuity,” slightly favored the plaintiff. The particularly relevant because both parties were aware
defendant strongly disagreed with that determination, citing of the condition before the initial stipulated order. The
evidence that plaintiff’s current husband has an apparent trial court heard evidence that plaintiff took precautions
alcohol problem and that plaintiff is a self-admitted cigarette to minimize her child’s exposure to the smoke, and it
addict. The trial court was very concerned about the impact further found that the issue as presented did not rise to
of these problems upon the “satisfactory environment” the level of a changed circumstance. The evidence does
requirement enunciated in factor (d), but nevertheless ruled not preponderate in favor of a contrary conclusion.
for plaintiff. The court of appeals held that:
In Eldred v Long, 2004 Mich App LEXIS 173, the trial court
Although we are keenly aware of the deleterious affects weighed the factors in MCL 722.23(b) which addresses the
of “secondhand smoke” and a drinking problem on [*5] capacity and disposition of the parties to give love, affection,
the household, we are not prepared to state that as a and guidance and to continue the education and raising of
matter of law custody may not be awarded to a parent the child in his or her religion or creed. Despite finding that
like plaintiff who finds herself in those circumstances. both parents were capable of showing love and affection to
Notwithstanding these negative facts, the evidence the child, the trial court found in favor of defendant because
considered as a whole indicates that the children have it had concerns about plaintiff’s ability to provide proper
lived with plaintiff in a stable, satisfactory environment guidance to the child since he frequently left the child in the
and that the desirability of maintaining continuity care of others, participated in activities that he preferred
rather than those that would be more enjoyable to the child, The above response is not meant to serve as a solution to
and continued to smoke in the child’s presence although she a case. That would require complete disclosure of all facts
has allergies. The appellate court found that the findings in the case, including client consultation. Rather, the intent
were not against the great weight of the evidence. is to provide informal guidance based upon the facts that
have been presented. The inquiring lawyer bears full legal
I believe that it would be helpful to your case if an expert responsibility for determining the validity and use of the
witness testify as to the deleterious affects passive smoke advice provided herein.
can have on a child. In my opinion, such testimony could
make a substantial impact the findings of the trial court. Questions for Professor Lex should be forwarded to the
The court reviews all of the factors of the Child Custody Act Michigan Family Law Journal, State Bar of Michigan,
prior to rendering an opinion. Without knowledge of all of Michael Franck Building, 306 Townsend Street, Lansing, MI
the relevant facts in your case, I do not know whether or 48933-2083. One letter will be selected to be published in
not mother’s smoking habit will be sufficient for your client each issue of the Family Law Journal. Letter writer’s names
to prevail. shall remain anonymous.
Answer respectfully submitted by Harvey I.
Hauer, Hauer & Snover.
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Berry v Berry, person. On remand, the trial court was instructed to consider
Court of Appeals Docket No. 273427, decided all factors when revisiting the wife’s alimony request.
July 24, 2007, Murphy, P.J., and Talbot and
Servitto, JJ., Unpublished: Attorney Fees: Based on evidence of the wife’s minimal
income, her child support obligation, and the minimal
The wife appealed several aspects of the trial court’s award of marital assets, the appellate panel held that the
divorce judgment. The Court of Appeals affirmed the trial trial court abused its discretion in denying the wife’s request
court’s custody order. The trial court’s property division was for attorney fees. The fact that the wife’s infidelity caused
vacated and the matter remanded for a factual finding on the the marital breakdown does not constitute unreasonable
value of the marital home. The trial court’s decision to deny conduct during the litigation that would weigh against such
alimony was also vacated and remanded for further factual an award. This decison to award attorney fees is purely a
findings. The trial court was also directed to reconsider its need/ability to pay inquiry.
refusal to grant the wife’s request for attorney fees.
Child Custody: While the trial court did not determine opinions/final/coa/20070724_c273427_64_
whether an established custodial environment existed, 273427.opn.pdf
there was sufficient information in the record to allow the
Court of Appeals to find there was no established custodial Jones v Giannotti,
environment. There were repeated changes in the children’s Court of Appeals Docket No. 261236, decided
physical custody in the three months before the trial. The January 4, 2007, Zahra, P.J., and Cavanagh
parties rotated living in the marital home with the children on and Schuette, JJ., Unpublished:
a weekly basis. This arrangement continued throughout the
trial, which occurred over five months. The Court of Appeals Child Custody: The mother appealed the trial court’s
found these “regular and repeated changes in the physical order changing custody of the two minor children to the
custody of the parties’ two sons, along with the uncertainty father. The Court of Appeals reversed the award as to the
created by the custody trial,” meant no established custodial older child, who was born prior to the marriage and was
environment existed. Although there was a stable physical not a child of the parties, but affirmed the custody award
environment, “there was no psychological environment concerning the younger child who was born during the
of significant duration, marked by security, stability and marriage and was a child of both parties.
permanence.” A preponderance of the evidence supported
the trial court’s decision to award custody of the parties’ While the Livingston County Circuit Court did not lack
two sons to the father. subject-matter jurisdiction to decide custody of the older
child, it erroneously exercised jurisdiction over him. The
Property Division: Although the value of the marital older child was born prior to the marriage. An order of
home, which was the largest martial asset, was in dispute, filiation from Wayne County established another man as
the trial court did not assign it a value before dividing the that child’s father. The Wayne County order also gave the
marital estate. This was clear error, making it impossible for mother custody of the older child. The parties married shortly
the Court of Appeals to determine whether the trial court’s after entry of the Wayne County order. The Wayne County
division of the marital estate was equitable. custody order remained in effect at the time the Livingston
County court attempted to modify custody.
Alimony: The trial court abused its discretion when it
failed to consider all of the case law factors in denying the The Court of Appeals agreed with the mother’s argument
wife’s request for spousal support. The trial court based its that MCR 3.205(C)(2) precluded the Livingston County
decision only on the wife’s infidelity, her failure to admit the court from entering an order contrary to the earlier Wayne
infidelity, and her attempt to portray the husband as a bad County order. However, this conclusion did not require the
court to disturb the trial court’s decision concerning custody The father also argued that no violence against the
of the younger child. mother took place in the child’s presence. In so doing, he
overlooked the plain language of the statute which directs
Judge Wilder concurred in part and dissented in part. He the trial court to consider domestic violence regardless of
accepted the mother’s argument that the Livingston County whether the child witnessed it. Also, in light of the fact the
court lacked subject-matter jurisdiction over the older child PPO against the father prohibited communication between
because it was undisputed that the older child was not a the parties, it was highly unlikely they would be able to
child of the parties nor was he born during the parties’ agree on the basic issues of child rearing or cooperate in
marriage. Under MCL 552.16, a court hearing a divorce joint decision-making.
case, including post-judgment modification proceedings,
has subject-matter jurisdiction only over a child “of the Next, the father argued that the trial court’s custody order
parties.” It does not matter that the original complaint for constituted a termination of his parental rights. The panel
divorce alleged that the child was born during the marriage disagreed with the father’s assessment. The trial court
when the same complaint also correctly listed the child’s date advised the father that once the PPO expired and was not
of birth as 13 months before the date of marriage. Judge extended, he could file a motion to modify custody and
Wilder wrote that because the trial court’s order changing parenting time based on changed circumstances.
custody of the older child must be reversed, custody of the
younger child should be remanded to the trial court for The father also complained that he was denied due process
reconsideration. of law because he was denied the opportunity to present
evidence at trial. Because these arguments were raised
Majorit y : http ://courtofappeals.mijud.net/ for the first time on appeal, they are not preserved for
d ocuments/o pinions/final/co a/20 070717_ appellate review. Furthermore, at no time did he request an
c266568_84_266568.opn.pdf opportunity to present additional evidence or witnesses.
Partial Concurrence/Dissent: http:// Finally, the father claimed that his right to trial transcripts for
courtofappeals.mijud.net/documents/opinions/ his appeal was denied because he was poor and indigent.
final/coa/20070717_c266568_85_266568p. The Court of Appeals previously denied his motion to waive
opn.pdf transcript fees, and despite that denial, the father was able
to order and file the transcripts in question.
[Note: The author of the above summary was
appellate co-counsel for the mother in this http://courtofappeals.mijud.net/documents/
Havas v Havas,
Court of Appeals Docket No. 272302, decided Karchin v Karchin,
July 3, 2007, decided January 23, 2007, Court of Appeals Docket No. 268750, Decided
Whitbeck, C.J., and Wilder and Borrello, JJ., June 19, 2007, Servitto, P.J., and Jansen and
Unpublished: Schuette, JJ., Unpublished:
Child Custody: The father appealed the child custody pro- The wife appealed the property division, alimony, and
visions of the divorce judgment. The Court of Appeals affirmed. attorney fee provisions of the divorce judgment. The Court
of Appeals affirmed on all three issues.
The father argued first that the trial court abused its
discretion in awarding the mother sole custody of the Property Division: The Court of Appeals did not
parties’ child. Concluding the trial court’s findings conclude that the trial court’s equal division of the parties’
regarding the best interest factors and the parties’ ability retirement account was inequitable. The wife claimed that
to communicate were not against the great weight of she should have been awarded 55 percent of the retirement
the evidence, the Court of Appeals held the trial court account, asserting that the husband was at fault for the
did not abuse its discretion in awarding the mother breakup of the marriage due to a romantic involvement with
sole custody of the parties’ child. The mother had sole another woman. The panel noted that while fault is a proper
physical custody pursuant to an ex parte order. Since consideration in dividing the marital estate, the trial court
an established custodial environment existed with her, found the marriage broke down before husband’s affair.
the father had to show a change was in the child’s best The parties were equally at fault for not working together to
interests. The trial court also noted a PPO had been issued address their problems. The parties were the same age, both
against the father. While the father repeatedly protested well-educated, in good health, and had the same standard
about the PPO against him, he failed to timely appeal the of living, assets, and needs. Those factors supported an
PPO, thereby not preserving that issue. equal division of the retirement account.
The trial court did not err in allowing the husband to keep The husband first argued that the trial court erroneously
his inheritance as separate property while not awarding the included his premarital assets in the marital estate. The
wife her inheritance as separate property. The wife received parties married on November 1, 1996. The husband filed
money from her living grandmother in 1995, which was for divorce in January 2004. He received a $75,000 bonus
used for a down payment on the parties’ marital home. in March of 1997 for work completed in 1996. In January
Both parties’ names were on the mortgage and deed, they of 1998 he retired from his employment after 20 years of
and their children lived in the home for several years, and service to start his own business. After his retirement he
the husband paid to maintain it. The wife’s inheritance was received an Earned Equity Award Plan (EEAP) award,
not intended to be nor kept as her separate property. The longevity bonus, severance package, and outplacement
husband’s inheritance, however, was received after the services cash-out from his former employer, which he
death of his mother in 2004, around the time the parties placed in the parties’ joint checking account. The trial court
separated, and was placed into his separate account. included the entirety of his 1996 bonus, EEAP award,
After he moved out of the marital home, he used some of longevity bonus, severance package, and outplacement
this money to buy another home. The wife never had an services cash-out in the marital estate.
interest in the husband’s new home and did not contribute
to its purchase or maintenance. In light of the different The Court of Appeals affirmed, holding that the husband’s
circumstances, the trial court did not abuse its discretion in actions in depositing those assets in a joint account
treating the two sums of money differently. indicated his intent that they be treated as marital assets.
Furthermore, the parties withdrew funds from the joint
Alimony: The wife argued that the 7 year alimony award account for living expenses, renovation of the marital
ordered by the trial court was inequitable because the home, and to finance the business the husband started
husband expressed a willingness to pay alimony for 10 during the marriage. The trial court’s conclusion that the
years. However, the husband’s 10 year offer was based on disputed assets were intended by the husband to replace
a lesser amount than what was ordered by the trial court. the income he would have contributed to the marriage if
There was no agreement for a 10 year alimony award at he had retained his employment was supported by the
the amount ordered by the trial court. record.
The wife also appealed the trial court’s refusal to require Next, the husband argued that the trial court erred when
the husband to secure alimony with life insurance. Although calculating the value of the parties’ business. The appellate
the trial court had the authority to require life insurance as panel noted that the trial court’s value fell within the range
security, it was not obligated to do so. The wife did not established by the parties’ respective valuation experts. The
make a request for life insurance as security during the trial. trial court found that both expert valuations were based on
Because it would have been an additional expense to the speculative sales projections and assigned a value between
husband not weighed by the trial court in its alimony or the two assessments. When a trial court arrives at a value
property awards, the trial court did not abuse its discretion within the range established by the evidence, there is no
when it denied the wife’s motion to amend the judgment to showing of clear error.
include a security provision.
Attorney Fees: The trial court denied the wife’s request opinions/final/coa/20070612_c267326_49_
for $15,000 in attorney fees. Instead, it ordered that each 267326.opn.pdf.
party be responsible for their own fees. The marital estate
was divided equally, and the wife was unable to show that Note: The husband filed an application for leave
she could not pay her own fees. Nor was there a showing to appeal to the Michigan Supreme Court on July
that the husband engaged in unreasonable conduct. The 20, 2007. It has been assigned Supreme Court
trial court did not err on this issue. No. 134476.
http://courtofappeals.mijud.net/documents/opinions/ Leder v Leder,
final/coa/20070619_c268750_46_268750.opn.pdf Court of Appeals Docket No. 275237, Decided
June 26, 2007, Bandstra, P.J., and Zahra and
Aukeman v Aukeman, Fort Hood, JJ., Unpublished:
Court of Appeals Docket No. 267326, Decided
June 12, 2007, Davis, P.J., and Hoekstra and Child Custody: The mother appealed the trial court’s order
Donofrio, JJ., Unpublished: denying her motion to change custody of the minor children.
The father cross-appealed the trial court’s imposition of
Property Division: The husband appealed the property additional requirements to assure his cooperation with
division provisions of the divorce judgment. The Court of the custody/parenting time order. The Court of Appeals
Appeals affirmed. affirmed.
The mother challenged the trial court’s conclusion that she judgment because the relief requested in the complaint was
failed to show a change in circumstances or proper cause for different than what was granted in the default judgment.
a change of custody. She asserted that the father neglected The trial court denied the motion and declined to hold
the children’s dental and medical needs and instructed a best interests hearing. In a prior appeal, the Court of
the children’s doctors to deny her access to their medical Appeals reversed the trial court’s refusal to set aside the
records. She argued that the father’s actions amounted to a custody provisions of the divorce judgment and remanded
change of circumstances requiring the trial court to conduct for an evidentiary hearing on custody. See Docket No.
a hearing to reevaluate the best interest factors. The Court of 261029.
Appeals disagreed, holding that there was no evidence the
parties took the children to the dentist more often during the After conducting the hearing on remand, the trial court found
marriage than the annual trips made post-divorce. While the that the child had an established custodial environment
father should have been more diligent in securing follow-up with both parents and there was not clear and convincing
care for one of the children, there was no evidence that evidence to change the existing arrangement. Accordingly,
the mother would be more capable of providing medical the trial court awarded joint legal and joint physical custody.
care. The father’s actions did not constitute neglect of the The mother appealed, challenging a number of the trial
children’s medical or dental care. court’s findings on the best interest factors.
The father disputed the trial court’s imposition of additional The Court of Appeals affirmed the trial court because none of
requirements on him concerning cooperation with the the challenged findings were against the great weight of the
mother. The Court of Appeals concluded that the record evidence. While the parties had been using text messaging
supported the trial court’s finding that the father had been to communicate, that fact alone did not necessarily show
uncooperative with the mother concerning the children’s that the parties had an inability to communicate. Nor
medical and dental care. was the fact that they had several disagreements and
misunderstandings about parenting time evidence that they
http://courtofappeals.mijud.net/documents/ would be unwable to cooperate and generally agree about
opinions/final/coa/20070626_c275237_48_ important decisions affecting the child’s welfare.
Judicial Disqualification: The mother claimed that the
Nolen v Nolen, chief trial court judge abused discretion in denying her
Court of Appeals Docket No. 271111, decided motion to disqualify the trial judge. The Court of Appeals
June 26, 2007, Bandstra, P.J., and Zahra and held that the mother failed to satisfy the MCR 2.003(B)(1)
Fort Hood, JJ., Unpublished: standard to disqualify a judge. Repeated rulings against a
party are not disqualifying. There were also no remarks on
The mother appealed the trial court’s custody order and the the record indicating any bias or extrajudicial prejudice.
order denying her request to disqualify the trial judge. The
Court of Appeal affirmed. http://courtofappeals.mijud.net/documents/
Child Custody: When the father filed for divorce, his 271111.opn.pdf
complaint sought joint legal and joint physical custody. The
mother did not answer the complaint and was defaulted. Note: The mother filed an application for leave
The father submitted and the trial court entered a default to appeal with the Michigan Supreme Court on
judgment granting him sole legal and sole physical custody August 7, 2007. It has been assigned Supreme
of the parties’ child. The mother moved to set aside the Court No. 134606.
Family Law Appeals
Scott Bassett, Esq.
Quality and Experience
Past Chairperson, State Bar Family Law Section
Fellow, American Academy of Matrimonial Lawyers
Appeals - Trial Court Research - Brief Writing - Consultations
COURT-APPROVED FAMILY LAW MEDIATOR
Carole L. Chiamp
Ms. Chiamp is among the first attorneys in Michigan to be
designated as a Family Law Court-Approved Mediator. For more
than 30 years she has been appointed mediator, facilitator and
arbitrator in cases ranging from negligence, probate and contract
law to civil rights and family law.
Ms. Chiamp served as a member of the Task Force on Child
Support and Alimony Awards, the Mediation Tribunal Selection
Committee and the 21st Century Commission on the Courts.
For eighteen consecutive years she has been named
to The Best Lawyers in America.
Please contact Ms. Chiamp at:
Chiamp & Associates, P.C.
Mediations Conducted at:
211 West Fort Street • Suite 615 • Detroit, MI 48226
313.962.4600 • Fax 313.962.3600 and
555 S. Old Woodward Avenue • Suite 765 • Birmingham, MI 48009
SERVING WAYNE AND OAKLAND COUNTIES
tax trends and deVeLOpMents
by Joseph W. Cunningham, J.d., C.p.a.
This Month’s Column in a Nutshell: Recent Court • Among the reasons for the Court’s decision was that
of Appeals Case Indicates (1) Importance of H failed to present expert testimony concerning the
Retaining a Business Valuation Expert and (2) business value.
the Significance of Standard of Value. Buckner v
Buckner, Mich App No. 266887 (7/26/07) • Further, the Court said that even if it were procedurally
appropriate to consider the affidavit executed by the
FACTS OF THE CASE company’s accountant, the document did not present
a conclusion of value based on an accepted business
• W’s business valuation expert valued H’s business at valuation methodology.
$2.5 million on a net asset value basis.
COMMENTS ON THE CASE
• The expert acknowledged that the value of the business
based on its income earning capacity may be a million Importance of Engaging an Expert
dollars or so less than the $2.5 million net asset value.
• In a previous decision, the Court of Appeals ruled that
• The expert further acknowledged that the use of the where one party presents testimony of an expert who
income approach – and, hence, the corresponding performed a business valuation analysis and the other
lower value – may be more appropriate for the divorce party does not, it is appropriate for the trial court to
settlement if the owner intends to continue to operate adopt the conclusion of the expert, despite objections
the business. by the party who did not provide such testimony to the
• But, the expert was evidently not asked to perform an
income based appraisal and was not provided sufficient • The case was Kolbus v Kolbus (Mich App No. 162642
data with which to do so. (9/1/95) in which Dick McEndarffer, CPA, performed
a business valuation. His counterpart critiqued Mr.
• H did not engage the services of a business valuation McEndarffer’s appraisal but did not perform an
expert to perform an appraisal or to critique the analysis independent valuation analysis. The court adopted
of W’s expert. McEndarffer’s conclusion of value stating that he had
performed a complete valuation analysis on which it
• The trial court adopted the $2.5 million net asset value could rely whereas his counterpart did not.
while stating, essentially, that W’s expert’s comments
that an income based value appeared substantially • The Buckner case, as well as Kolbus, indicate the
lower did not constitute a business valuation analysis importance of engaging a business valuation expert
on which the court could rely. where one of the parties owns a business. Sometimes
it is appropriate to hire a business valuation expert to
• H filed an appeal and included an affidavit executed by consult concerning estimated value and/or to critique
the company’s accountant incident to a motion for a retrial. an appraisal performed by the other party’s expert.
The affidavit indicated, evidently, that the cash flow of the However, if it appears a case is headed to arbitration
business did not correlate with a $2.5 million value. or trial, it is essential that the expert perform an
independent valuation analysis.
COURT OF APPEALS DECISION
Significance of Standard – or Measure – of Value
• The Court of Appeals upheld the trial court’s decision
to use the $2.5 million net asset value in the divorce • It has become increasingly common in Michigan,
settlement. and in other states, to use the value of a business to
the owner for divorce settlement purposes unless the or practice may be of considerable value to another
business will be sold or discontinued. This measure or company or practice operating in the same field. But,
standard of value is sometimes referred to as “holder’s if the owner does not intend to sell the business or
interest value” or “investment value assuming the owner practice – which could be inadvisable if the owner has
is the investor.” no other means of making a living – the higher sale/
merger value will not be realized.
• Often the holder’s interest value of a professional
practice or closely held business is higher than what the
• In such an instance, it may well be appropriate to use
business could be sold for to an unrelated third party
the lower “value to owner” in the divorce settlement
(fair market value). The concept is that if the family had
with a provision that if there is a sale or merger within
benefited from this higher value – generally measured
a reasonable period after the divorce, that any excess
by the financial benefits the business conferred on the
value be divided in an equitable manner – either
owner - and the owner will take this same value forward
pursuant to a formula, or as decided by the mediator
after the divorce, that such value should be used in
or arbitrator involved in the case.
devising an equitable division of marital property.
• However, some businesses or practices do not • Use of the lower “value to owner” assumes that the
generate earnings in excess of a reasonable level of income of the business is not temporarily depressed due
compensation to its owner. Hence, they have no good to a short term downturn attributable to (1) a normal,
will or incremental earnings value and, in many cases, recurring business cycle, (2) manipulation by the owner,
have minimal net asset value. Nonetheless, because (3) distraction of or time demands on the owner due to
of synergies such as economies of scale, the business the divorce.
BUSINESS VALUATIONS FOR DIVORCE: PRACTICE AID FOR LAWYERS
BY FAMiLY LAW seCtiON AD HOC COMMittee ON BUsiNess vALUAtiONs
this “Practice Aid” contains 24 pages including:
• Guidelines for business valuations for divorce settlement purposes.
• Checklists for family law practitioners on (1) selecting and working with an appraiser, (2) information
necessary to value a business and (3) appropriate valuation report contents.
• Various resource materials for family law practitioners including a bibliography of business valuation
for divorce materials.
to obtain this publication:
send a check or money order for $25 payable to the “state Bar of Michigan” to the following address:
Joseph W. Cunningham, JD, CPA, Plante & Moran, LLP
27400 Northwestern Hwy., P Box 307, southfield, Mi 48037-0307
NOTICE RE: THIRD EDITION OF TAX CHECKLISTS FOR DIVORCE SETTLEMENTS
the third edition of Tax Checklists for Divorce Settlements (Tax Checklists) has been updated through January 1,
1999. it is approximately 125 pages and includes revised rules regarding tax treatment of the sale of principal
residences and the new provisions regarding “innocent spouse” relief.
terMs OF PUrCHAse:
• For first time purchasers of Tax Checklists, the price is $65.
• For those whose first purchase of Tax Checklists occurred during 1998, the price is $15.
• For those who first purchased Tax Checklists prior to January 1, 1998, the price is $20.
• See the box below for information regarding payment and mailing.
tAX CHeCKLists FOr DivOrCe settLeMeNts
BY JOsePH W. CUNNiNGHAM, JD, CPA
PUBLiCAtiON OF tHe FAMiLY LAW seCtiON, stAte BAr OF MiCHiGAN
tHirD eDitiON – 1999 UPDAte
this comprehensive, 125-page guide includes checklists, outline materials and illustrations on tax traps and
planning opportunities regarding:
• Using Section 71 Payments to Advantage
• Avoiding Tax Pitfalls in Property Settlement Transfers and Appropriately Taking Taxes into Account
• Tax-planning for the Marital Residence in Divorce Settlements
• Providing for Dependency Exemptions
• Maximizing Clients’ Tax Benefits from Payment of Professional Fees
• Providing for Key Provisions in QDROs/EDROs
• Closely-Held Corporations and Divorce Settlements – Pitfalls and Planning
• New Innocent Spouse Provisions
to order – send a check or money order payable to the state Bar of Michigan with a request for a copy of
“tax Checklists for Divorce settlements” to:
Joseph W. Cunningham, JD, CPA, Plante & Moran, LLP
P Box 307, southfield, Mi 48037-0307
by Bill Kandler
Lobbyist, FamiLy Law seCtion
Bills that the Family Law unless required by law. Last Action: 3/27/2007 – printed
Council is following are: bill filed 03/23/2007
HB 4066 Children; adoption; posthumous adoptions; HB 4522 Family law; paternity; inclusion of personal
provide for retroactivity for posthumous adoptions and information in order of filiation; prohibit unless required
medical assistance payments. Last Action: 1/23/2007 by law. Last Action: 3/27/2007 – printed bill filed
– printed bill filed 01/23/2007 03/23/2007
HB 4128 Civil procedure; civil actions; payment of HB 4523 Family law; child support; inclusion of personal
medical or psychological care for a child who was information in an order under the family support act; prohibit
abused or neglected by a parent; provide for. Last Action: unless required by law. Last Action: 3/27/2007 – printed
1/25/2007 – read a first time bill filed 03/23/2007
HB 4140 Family law; child custody; award of custody to HB 4564 Family law; child custody; joint custody;
parent convicted of criminal sexual conduct against his or her mandate in every custody dispute between parents except
child; prohibit. Last Action: 1/25/2007 – read a first time in certain circumstances. Last Action: 4/5/2007 – referred
to Committee on Families and Children’s Services
HB 4147 Family law; child support; termination of child
support obligations when DNA evidence demonstrates payer HB 4566 Family law; child support; repayment of child
is not the biological parent; provide for. Amends 1982 PA support; allow under certain circumstances. Last Action:
295 (MCL 552.601 – 552.650) by adding sec. 5f. Last 4/12/2007 – printed bill filed 04/06/2007
Action: 1/31/2007 – printed bill filed 01/31/2007
HB 4731 Family law; other; lewd and lascivious
HB 4174 Family law; parenting time; electronic visitation; cohabitation; repeal prohibition. Amends sec. 335 of 1931
allow court to order for parents and grandparents. Amends PA 328 (MCL 750.335). Last Action: 5/10/2007 – printed
secs. 7a, 7b & 11 of 1970 PA 91 (MCL 722.27a et seq.). bill filed 05/10/2007
Last Action: 1/31/2007 – printed bill filed 01/31/2007
HB 4735 Human services; children’s services; procedure
HB 4180 Probate; powers of attorney; uniform power of for placement of children in a foster home; expand to
attorney act; enact. Creates new act & repeals secs. 5501 give special consideration to relatives. Amends sec. 4a of
– 5505 of 1998 PA 386 (MCL 700.5501 – 700.5505). 1994 PA 203 (MCL 722.954a). Last Action: 06/19/2007
Last Action: 1/31/2007 – printed bill filed 01/31/2007 – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
HB 4241 Family law; marriage and divorce; entry of social
security number on marriage license application; clarify HB 4736 Human services; children’s services; procedure
that county clerk is not to accept noncomplying application. for placement of children in a foster home; expand to
Amends sec. 2 of 1887 PA 128 (MCL 551.102). Last give special consideration to individuals of same religious
Action: 2/13/2007 – printed bill filed 02/09/2007 background. Amends sec. 4a of 1994 PA 203 (MCL
722.954a). Last Action: 06/19/2007 – REFERRED TO
HB 4259 Children; adoption; second parent adoption; COMMITTEE ON FAMILIES AND HUMAN SERVICES
provide for. Last Action: 5/9/2007 – referred to second
reading HB 4737 Human services; children’s services; requirement
for parental disclosure of relatives when placing a child in a
HB 4521 Family law; marriage and divorce; certain home other than that of a parent; implement. Amends sec.
inclusion of personal information in judgment; prohibit 13a, ch. XIIA of 1939 PA 288 (MCL 712A.13a).
Last Action: 06/21/2007 – REFERRED TO COMMITTEE individual’s home; require prior court approval. Amends
ON FAMILIES AND HUMAN SERVICES secs. 5422 & 5423 of 1998 PA 386 (MCL 700.5422 &
700.5423). TIE BAR WITH: HB 5186’07, HB 5188’07. Last
HB 4741 Family law; personal protection orders; Action: 09/11/2007 – printed bill filed 09/10/2007
prohibition against harming animals owned by petitioner;
include in personal protection order. Amends sec. 2950 of HB 5188 Probate; guardians and conservators; bond;
1961 PA 236 (MCL 600.2950). Last Action: 5/15/2007 require if protected individual has liquid assets over certain
– printed bill filed 05/11/2007 limit. Amends sec. 5410 of 1998 PA 386 (MCL 700.5410).
TIE BAR WITH: HB 5186’07, HB 5187’07. Last Action:
HB 4742 Crimes; domestic violence; penalties for killing 09/11/2007 – printed bill filed 09/10/2007
or torturing animal in perpetration of domestic violence;
increase. Amends sec. 50b of 1931 PA 328 (MCL 750.50b). SB 141 Children; services; court–appointed special
Last Action: 5/15/2007 – printed bill filed 05/11/2007 advocates; provide for. Creates new act. Last Action:
1/31/2007 – REFERRED TO COMMITTEE ON FAMILIES
HB 4743 Criminal procedure; sentencing guidelines; AND HUMAN SERVICES
sentencing guidelines for crime of killing or torturing an
animal in perpetrating an act of domestic violence; enact. SB 170 Children; guardians; relative guardianship
Amends sec. 16b, ch. XVII of 1927 PA 175 (MCL 777.16b). assistance act; establish. Creates new act. Last Action:
TIE BAR WITH: HB 4742’07. Last Action: 5/15/2007 2/6/2007 – REFERRED TO COMMITTEE ON FAMILIES
– printed bill filed 05/11/2007 AND HUMAN SERVICES
HB 4818 Family law; child custody; factors determining SB 171 Children; foster care; relative care; require same
best interest of child; include equal time for both parents as level of support as foster care. Amends secs. 18c, 55 &
a factor. Amends sec. 3 of 1970 PA 91 (MCL 722.23). Last 115b of 1939 PA 280 (MCL 400.18c et seq.) & adds sec.
Action: 5/24/2007 – printed bill filed 05/24/2007 18b. TIE BAR WITH: SB 0172’07 Last Action: 2/6/2007
– REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
HB 4896 Records; adoption; issuance of certified copy SERVICES
of original certificate of live birth to certain adopted
individuals; allow. Amends sec. 2832 of 1978 PA 368 (MCL SB 172 Children; foster care; child under relative’s care;
333.2832) & adds sec. 2832a. Last Action: 06/13/2007 prohibit removal under certain circumstances. Amends
– printed bill filed 06/13/2007 1939 PA 288 (MCL 710.21 – 712A.32) by adding sec.
11a to ch. XIIA. Last Action: 2/6/2007 – REFERRED TO
HB 4925 Children; abduction; uniform child abduction COMMITTEE ON FAMILIES AND HUMAN SERVICES
prevention act; create. Creates new act. Last Action:
06/19/2007 – printed bill filed 06/15/2007 SB 476 Family law; child custody; court review of arbitrator’s
decision on custody; allow court to gather additional
SB 34 Criminal procedure; sentencing; requirement of evidence. Last Action: 6/13 Passed House –REFERRED TO
presentence report for nonpayment of support; eliminate. COMMITTEE ON FAMILIES AND CHILDREN’S SERVICES
Last Action: 1/24/2007 – REFERRED TO COMMITTEE ON
JUDICIARY SB 477 Family law; child custody; child custody disputes
that have been arbitrated; require courts to resolve in
HB 5050 Family law; friend of the court; bank accounts accordance with domestic relations arbitration provisions of
of self–employed child support payers; require payers to the RJA. Amends sec. 4 of 1970 PA 91 (MCL 722.24). Last
disclose and allow friend of court to obtain information Action: 6/13 Passed House – REFERRED TO COMMITTEE
regarding. Amends sec. 5a of 1982 PA 295 (MCL ON FAMILIES AND CHILDREN’S SERVICES
552.605a) & adds sec. 27a. Last Action: 07/25/2007
– printed bill filed 07/25/2007 SB 506 Family law; paternity; circumstances under which
putative father may sue to establish paternity of a child
HB 5186 Probate; guardians and conservators; appointment born to a married woman; establish. Amends secs. 1, 4
of conservator; require court to consider if person under a & 6 of 1956 PA 205 (MCL 722.711 et seq.). Last Action:
guardianship has liquid assets of more than certain limit. 5/16/2007 – REFERRED TO COMMITTEE ON FAMILIES
Amends sec. 5305 of 1998 PA 386 (MCL 700.5305) & AND HUMAN SERVICES
adds sec. 5319. TIE BAR WITH: HB 5187’07, HB 5188’07.
Last Action: 09/11/2007 – printed bill filed 09/10/2007 SB 522 Family law; friend of the court; informational
pamphlet; allow to be provided electronically. Last Action:
HB 5187 Probate; guardians and conservators; power 5/22/2007 – REFERRED TO COMMITTEE ON FAMILIES
of conservator to mortgage or place lien on protected AND HUMAN SERVICES
SB 543 Children; protection; appeal process; provide SB 668 Family law; parental rights; termination of parental
for. Amends 1935 PA 220 (MCL 400.201 – 400.214) by rights and parenting time; clarify. Amends sec. 19b, ch. XIIA
adding sec. 5b. Last Action: 5/25/2007 – REFERRED TO of 1939 PA 288 (MCL 712A.19b). Last Action: 08/01/2007
COMMITTEE ON FAMILIES AND HUMAN SERVICES – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
SB 553 Family law; child support; system for payment of
support over the internet; require office of child support to SB 669 Children; foster care; permanency plan and
establish. Amends sec. 6 of 1971 PA 174 (MCL 400.236). permanent placement of a child; clarify. Amends sec. 19a,
Last Action: 5/25/2007 – REFERRED TO COMMITTEE ON ch. XIIA of 1939 PA 288 (MCL 712A.19a). TIE BAR WITH:
FAMILIES AND HUMAN SERVICES SB 0671’07 Last Action: 08/01/2007 – REFERRED TO
COMMITTEE ON FAMILIES AND HUMAN SERVICES
SB 592 Records; adoption; issuance of certified copy of
original certificate of live birth to certain adopted individuals; SB 670 Children; protection; notice regarding termination
allow. Amends sec. 2832 of 1978 PA 368 (MCL 333.2832) of parental rights; revise. Amends sec. 13b, ch. XIIA of
& adds sec. 2832a. Last Action: 06/19/2007 – REFERRED 1939 PA 288 (MCL 712A.13b). Last Action: 08/01/2007
TO COMMITTEE ON FAMILIES AND HUMAN SERVICES – REFERRED TO COMMITTEE ON FAMILIES AND HUMAN
SB 645 Family law; child support; use of substitute service
for complaint under family support act; allow. Amends sec. 1 SB 671 Children; foster care; alternate permanency plan
of 1966 PA 138 (MCL 552.451). Last Action: 07/24/2007 to be made concurrently with reasonable efforts to reunify
– REFERRED TO COMMITTEE ON JUDICIARY child and family; allow. Amends sec. 19, ch. XIIA of 1939 PA
288 (MCL 712A.19). Last Action: 08/01/2007 – REFERRED
SB 666 Children; adoption; second parent adoption; TO COMMITTEE ON FAMILIES AND HUMAN SERVICES
provide for. Amends secs. 24 & 51 of 1939 PA 288 (MCL
710.24 & 710.51). Last Action: 08/01/2007 – REFERRED SB 672 Children; foster care; review of permanency
TO COMMITTEE ON JUDICIARY plan; require. Amends sec. 19c, ch. XIIA of 1939 PA 288
(MCL 712A.19c). TIE BAR WITH: SB 0671’07. Last Action:
SB 667 Family law; marriage and divorce; persons 08/01/2007 – REFERRED TO COMMITTEE ON FAMILIES
authorized to solemnize marriage; allow county clerk in a AND HUMAN SERVICES
county other than county in which clerk serves. Amends sec.
7 of 1846 RS 83 (MCL 551.7). Last Action: 08/01/2007
– REFERRED TO COMMITTEE ON JUDICIARY
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the Case OF the issue
by henry s. gornbein
Gornbein, FLetCher & smith, p.L.L.C.
William D. Johnson, Plaintiff/Counter-Defendant-Appellant (d) Arbitration may not be appropriate in all cases.
v Lillian B. Johnson, Defendant/Counter-Plaintiff-Appellee,
for publication June 7, 2007 MCL 600.5072(1)(a)-(d)
Statement of Facts The record on appeal revealed that the mandatory pre-
arbitration disclosures were not satisfied. The statement of
This is a case that has a very tortured background. There the second judge that advised the parties the property issues
were three different judges involved in the case. There were were being submitted to the arbitrator, and that the decision
issues raised with regard to when the parties separated, along would be the final word, failed to apprise the parties that
with the fact that the Plaintiff-husband had been leading two appellate review was available, but limited. In addition, the
separate lives with an illegitimate child in another relationship. record is unclear as to whether the agreement to arbitrate
The first judge at one point had held that the issue of spousal delineated the fact that spousal support or alimony was
support was off the table. The second judge took proofs as to held in reserve for the first judge to resolve. The written
the breakdown of the marital relationship, and the division and oral statements did not provide that the arbitration was
of assets was reserved for binding arbitration. The case voluntary, and in light of the trial court’s admonishment to
was not returned to the first judge. Instead, a third judge, a the parties that the case would be resolved the next day, it is
visiting judge, presided over the case and entered orders. unclear the decision to arbitrate was voluntary. In addition,
The written order provided that the division of the balance the second judge did not advise the parties that the fee for
of the marital property was submitted to binding arbitration arbitration was unnecessary, if they elected to proceed to
with each party responsible for half the fee. Discovery have the court to resolve the matter. The first judge erred in
had been closed, and the trial had occurred, and the allowing the default judgment premised on Plaintiff’s failure
third judge also granted a motion by Defendant to require to participate in arbitration when he was not advised of
asset disclosure. Both parties were to complete an asset the statutory criteria for voluntary submission. The Court of
disclosure form available from the first judge, and submitted Appeals set aside the default judgment based upon the non-
before arbitration. When the time for arbitration arrived, the compliance with MCL 600.5072.
Plaintiff-husband refused to participate. He alleged that the
arbitration encompassed issues which he had not agreed to. Conclusion
He also requested a new trial. The motion for a new trial was
denied, and a default judgment of divorce was entered by the This case is fact specific, but it spells out the fact that
first judge after Plaintiff refused to participate in the arbitration. whenever a case is put into binding arbitration, there must
The crux of this case deals with the arbitration statute. be a full record made, the arbitration agreement must spell
out exactly what the powers and limits of the arbitrator are,
The Law as well as what issues are to be covered in arbitration. A
concern I have is that there are some judges who are now
MCL 600.5072(1) provides that the trial court shall not taking the position that under the arbitration agreement, an
order a party to participate in arbitration unless there is an arbitrator, even if the agreement does not give the arbitrator
acknowledgment on the record or in writing that: that authority, can make spousal support non-modifiable,
where a trial court does not have that power. I’m concerned
(a) The submission to arbitration is voluntary; about the direction of arbitration. I am concerned about the
fact that parties are not being fully advised, and the judges
(b) The outcome of the arbitration will be binding and are, in instances, allowing cases to enter arbitration without
appellate review is limited; the attorneys or the court fully explaining to the parties
what their rights are, and what is being waived. I feel a
(c) An arbitration is not recommended for domestic commentary on this issue is important, and clarification of
violence or other domestic cases; what powers an arbitrator has, is necessary.
by david Findling
the FindLinG Law Firm
Papa Was a Rolling Stone, Wherever unpaid and shall continue until the amount of past due
He Laid His Hat Was His Home support is paid in full or the lien is terminated by the
title IV-D agency.
But when he died, all he left me was alone. Your client
wants more from the father than just to be left alone. Your Consequently, the unpaid support may be satisfied from the
client wants child support from the decedent. Does Michigan estate’s proceeds or assets.
law provide for child support after the death of a support
payer? The court also has the authority to secure the payment of
future support. The court may impose a lien on the payor’s
Following the death of a child support payer, what personal and real property for the amount of child support
happens to current child support? Arrearages? Under MCL which is past due and to “require security for payment of
§700.3705(6), a personal representative must provide the support that is . . . due in the future.” Milligan v. Milligan,
identity of the heirs of an intestate estate, and the devisees 197 Mich. App. 665, 670 N.W.2d 394 (1992). (See also
of a testate estate, to the Friend of the Court. The notice is MCL §552.27(c) for the court’s authority to sequester the
provided to the Friend of the Court in the county where the payor’s property for future support).
estate is being administered, and at the same time the notice
of the appointment is provided under MCL §700.3705(1). It should be noted that the granting of a lien does not insure
Effective October 1, 2005, MCL §700.3705(6) requires: payment. The estate’s assets may be secured by other
obligations, the property’s value may be de minimis, and
... at the same time the notice required by subsection there may be other estate claims. Furthermore, the granting
(1) is given, the personal representative shall give of a lien is different than the perfection of a lien. It would still
notice to the Friend of the Court for the county in which be necessary for the Personal Representative or the support
the estate is being administered, which notice identifies claimant to perfect the lien after it is granted.
the decedent’s surviving spouse and the individuals
who are, for a testate estate, the devisees or, for an The personal representative does not necessarily have a
intestate estate, the heirs. The personal representative is fiduciary duty to ensure that a support obligation is actually
not required to notify the friend of the court of a devise paid by the estate. If the Friend of the Court, the support
to a trustee of an existing trust or to a trustee under a claimant, or the court do not take steps to effectuate the
will. A personal representative incurs no obligation or granting of a lien, then no obligation will inure to the
liability to the friend of the court or to another person Personal Representative. In the event that proper notification
for an error or omission made in good faith compliance is not provided, it remains up to the payee to notify the
with this subsection. court and to seek distribution from the decedent’s estate or
to make a claim against the Personal Representative for a
Arrearages for unpaid support constitute a lien on the breach under MCL 700.3715(6).
payer’s estate for the amount of child support which is past
due. Accordingly, MCL §552.625a(1) states: Finally, in certain circumstances a lien is not applicable for
unpaid support payments. For instance, a lien against a
The amount of past due support that accrues under a decedent’s estate is not applicable toward the homestead,
judgment as provided in section 3 or under the law of other exempt property, family allowances or trusts.1
another state constitutes a lien in favor of the recipient Moreover, a lien is not applicable toward any money paid to
of support against the real and personal property of a the estate to the extent that such money is owed for attorney
payer, including, but not limited to, money paid as a fees or litigation expenses.2 It also does not apply toward
distribution from a decedent’s estate; as the result of a Medicaid, medical services, medical reimbursements, or
claim of negligence, personal injury, or death . . . The Medicare. Additionally, inheritance and estate assets are
lien is effective at the time that the support is due and not items subject to the lien.3 Although the lien may be
placed against an inheritance distribution it may not be
placed against the estate itself.
1. M.C.L. 552.625a(6)(c)
2. M.C.L. 552.625a(6)(e)
3. M.C.L. 552.625c(2)
Smith Mediaiton Center specializes in
providing domestic relations facilitation,
Smith Mediation Center specializes in providing domestic relations
mediation and parenting coordination
facilitation, mediation and parenting coordination services that
services that efficiently and effectively resolve
efficiently and effectively resolve client issues while accommodating
client issues while accommodating is designed to
the procedural needs of their attorneys. The Center the
procedural needs of their attorneys. The
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Center is designed to provide these services
in a timely manner for a reasonable fee.
Barbara B. Smith, J.D.
court-approved domestic relations Mediator
Tel. 248-290-5186 Fax. 248- 646-7224
31700 Telegraph Road, Suite 250
248-290-5186 Fax. 248-646-7224
Tel.Bingham Farms, •Michigan 48025
31700 Telegraph Road, Suite 250
Barbara B. Michigan 48025
Bingham Farms, Smith, J.D.
Qualified Domestic Relations
Mediator Pursuant to MCR 3.216
Letter tO the editOr
submitted by ross F. stancati
A TRAP OR A TOOL?
Every now and then we come upon a situation that would appear to be a trap for a lawyer that spells
Knowledge of that trap can sometimes provide a useful tool or advantage in future situations.
A widowed spouse comes to your office and tells you that she or he has been married to A for two or four
years. That in A’s first marriage he had two children. That prior to the widowed spouses marriage to A,
A executed a Will giving everything to A’s two children.
This widowed spouse now wants to know what rights the widowed spouse has to the estate of A.
Ah, you say, well I believe that you are entitled to a portion of A’s estate as a pretermitted spouse. You
can claim against the Will.
Isn’t this what you as an educated attorney would say? Isn’t this what we were taught in law school?
However, when we get to the Probate statute we might find:
1. Yes, under MCL 700.2301(1) the spouse is, in fact, a pretermitted spouse on the facts as we know
However, MCL 700.2301(1)(a) says that if the Will directs the assets of the estate to or in trust for the
benefit of a child of the testator who was born before the testator married the surviving spouse and who
is not the child of the surviving spouse, then surviving spouse gets nothing. See: In re Estate of Cecil C.
Warren Jr., Deceased, Unpublished Michigan Court of Appeals No. 262937.
Surprised? I was.
Now that you know, how do we use it? Doesn’t this knowledge now become a tool for you post
Advice to a client post divorce certainly is important. That a single parent might want to protect his or her
estate from future alliances, and the way to do it would be important to them.
The knowledge that with a Will behind them they can decide what to share with their future spouses and
what not to share is again important.
MCL 700.2301(1)(a) another tool of the family lawyer to advise his clients post divorce or another trap
you need to know and advise your client about before marriage.
Ross F. Stancati
Letter tO the editOr
submitted by Carole L. Chiamp
August 28, 2007
As I continue to review the family law practice, it hurts me to see so few color of people in the ranks
of writers in the Journal, members of the family law council, members of the American Academy of
Matrimonial Lawyers, Best Lawyers in American, etc.
Is there something we can do to change this? In the City of Detroit the population is at least 80% African
American. Shouldn’t those litigants, for example, be able to read regular or special issues of the Family
Law Journal and see pictures of the people who write articles whose skin color matches theirs?
What do you think?
Carole L. Chiamp
the WengeL MaLpraCtiCe trap
by Blaine B. Johnson, Jr.
bLaine b. Johnson, Jr., p.C., JaCkson, mi
I. Introduction to Florida. The point of Plaintiff’s quiet title action was to
award Plaintiff title to the property (in fee simple), so that
On February 28, 2006, the Court of Appeals issued an she could mortgage and sell the property as she wished.
important property law decision in Wengel v Wengel, 270 She failed. The $25,000.00 Defendant initially demanded
Mich App 86; 714 NW2d 371 (2006), involving a parcel of appears to have been a bargain, because now, assuming
real property owned by the parties as “joint tenants with full the property is worth $100,000.00, Plaintiff could not force
rights of survivorship.” But the decision has a major impact Defendant to accept $200,000.00 to release his contingent
on family law lawyers when advising unmarried parties. remainder interest in the property. Plaintiff is absolutely
hamstrung, simply because of the manner in which Plaintiff
II. Holding caused Defendant’s name to be placed on the conveyancing
instrument. Defendant could have contributed some “sweat
As between unmarried parties who own real property equity” by way of improvements to the property (which he
jointly with rights of survivorship (that is, a joint life estate claimed occurred), or Plaintiff could have been enamored
with dual contingent remainders), the doctrine of adverse with Defendant and wanted to demonstrate her affection
possession is available to the occupying tenant to defeat for and commitment to Defendant, by adding his name to
the ousted cotenant’s life estate interest, but the ousted life the property. But whether Defendant contributed or not, it
tenant’s contingent remainder cannot be destroyed through doesn’t matter. He still wins.
V. Malpractice Trap
Not mentioned in the Court of Appeals’ decision is how
Plaintiff and Defendant met in 1972, became romantically Plaintiff’s lawyer advised her relative to the drafting of the
involved, and lived together. Two years later, Plaintiff deed. If the lawyer did not understand dual contingent
purchased a home, and titled the property in her name remainders, and did not have a working knowledge of
alone. In 1981, Plaintiff conveyed the property to Defendant Albro v Albro,2 that lawyer may well have breached the
and herself “as joint tenants with full rights of survivorship,”1 standard of care and left the door open to defending a
In 1985, the parties had a disagreement, and Defendant malpractice action for failing to properly advise the client
moved out of the home. Plaintiff told Defendant that “he as to the consequences of conveying property “jointly with
should have his name removed from the property,” but full rights of survivorship.”
Defendant refused to do so unless he received $25,000.00.
Plaintiff declined to pay Defendant anything, including any VI. Take Away
portion of some rental income generated by the property.
Instead, Plaintiff performed all of the maintenance, made Don’t shy away from drafting deeds involving unmarried
all of the mortgage payments, and paid all of the insurance parties. Just take the time to thoroughly explain the ramifications
premiums and taxes associated with the property. Plaintiff of joint tenancies, and charge the client accordingly. Becoming
had exclusive possession of the property from 1984 until knowledgeable not only means that you are a better lawyer. It
2004, when she filed her action to quiet title. Although also means that you will be paid better.
Plaintiff won that part of her lawsuit as to Defendant’s life
estate interest in the property, she lost the most important/ Endnotes
valuable part of the lawsuit, as Defendant retained his
contingent remainder in fee simple. I. The magic language used to create joint life estates with dual
contingent remainders includes: “and to the survivor of them,’
“to them and the survivor of them,” “or survivor of them,” “with
right of survivorship,” or “with full rights of survivorship.”
Plaintiff was left with her joint cotenant out of the picture
2. Albro v Allen, 434 Mich 271; 454 NW2d 85 (1990), a
during his lifetime, but Defendant still retained the right case both Jeanne M. Hannah, Esq., of Traverse City, and
to all of the property once Plaintiff died. That meant no Adele P. Laport, Esq., of Ann Arbor, frequently cite relative
victory at all, inasmuch as Defendant had already been out to real property issues on the professional online discussion
of Plaintiff’s life for 19 years, and, according to Plaintiff, group sponsored by the State Bar of Michigan - Family Law
Defendant had left her for another woman and moved Section (“listserv”).
ethiCaL COnsideratiOns FOr the
MiChigan COLLaBOratiVe LaWyer
by erika L. salerno, J.d.1
In February of 2007, the Ethics Committee of the Colorado the collaborative process, and pursue court intervention.
Bar Association (“CBA”) issued an advisory opinion The Collaborative Participation Agreement does not bind
criticizing Collaborative Practice.2 Collaborative Practice is the lawyers or clients to the process. The Participation
a form of alternative dispute resolution in which the clients Agreement simply states each party’s desire to resolve the
and lawyers agree to work toward resolving all of the issues divorce through the collaborative process, describes the
through facilitative negotiation, without court intervention.3 collaborative process, and sets out each party’s commitment
Collaborative lawyers limit the scope of their representation to honor the collaborative process, as long as the parties
within their Retainer Agreements, and commit to the remain in the collaborative process.8 Family law lawyers
process by signing a Participation Agreement limiting the routinely enter into similar agreements without the fear
scope of the representation and outlining the process. The they have taken on the “other spouse” as their client.9 For
Participation Agreement is signed by the lawyers, and example, most lawyers regularly employ collaborative
individual clients. techniques in their practices such as informal discovery,
joint appraisals, and civil and non-threatening behavior.10
The CBA opinion states that a Colorado attorney cannot As a result, the Participation Agreement does not bind either
sign a Collaborative Law Participation Agreement without party or either attorney to the collaborative process.11 Each
violating Rule 1.7 of the Colorado Rules of Professional commits to the process for only so long as each wishes to
Conduct.4 This CBA opinion has rekindled the debate continue the process.12
regarding whether lawyers who engage in Collaborative
Practice are violating state ethical rules.5 Several jurisdictions Furthermore, the CBA opinion rests upon a faulty analysis of
have already upheld Collaborative Practice as ethical Rule 1.7. The Colorado Rule 1.7(b), similar to the Michigan
under the ABA Model Rules of Professional Conduct.6 As rule, states that a lawyer shall not represent a client if the
of the date of this article, the Michigan State Bar has not representation may be materially limited by the lawyer’s
yet issued an opinion on the matter. However, an analysis responsibilities to a third person, or the lawyer’s own
of the CBA opinion and the Michigan Rules of Professional interests.13 However, an exception arises when the lawyer
Conduct (“MRPC”) clearly demonstrate that Collaborative believes the representation will not be adversely affected
Practice does not violate ethical rules governing lawyers or and the client consents after consultation.14 The CBA opinion
the MRPC. concludes that a client’s consent is invalid because if the
process should terminate, the lawyer must withdraw, and
First of all, the CBA opinion ignores its own Rule 1.2, which cannot represent the client as the case moves forward into
is similar to MRPC 1.2. MRPC 1.2 states that a lawyer litigation.15 Here, the CBA opinion implies a collaborative
may “limit the objectives of the representation if the client lawyer cannot adequately help the client consider litigation
consents after consultation.”7 Therefore, clients have the right alternatives in a material way.16 This rationale is completely
to manage and direct the role and scope of their lawyer’s flawed. A Collaborative lawyer owes the same obligation
work, and the resolution of their case. After all, especially to his client as any other family lawyer.17 The Collaborative
in the context of family law, it is our client who actually lives lawyer must exercise appropriate professional judgment in
with the ramifications of a particular outcome of a case once recommending the collaborative process, monitoring the
it is resolved. For some individuals and families, alternative process, and, if the process is not working, advising the
dispute resolution, and collaborative practice in particular, client to leave the process.
provides the ability to craft an outcome and allows them to
move forward, rather than getting caught up in the angst In conclusion, the CBA opinion serves as a good reminder
of litigation. This decision is not fundamentally different to all family law practitioners that if there is a risk that your
than a criminal defendant who chooses not to testify, or a representation of one or more clients will be materially
corporation that chooses to arbitrate a dispute. limited by your responsibilities to a third party, the
representation can continue only if each affected client gives
Secondly, the CBA opinion suggests that the signing of the informed consent, after full disclosure and consultation. The
Collaborative Practice Participation Agreement creates a Collaborative lawyer must carefully draft the Collaborative
contractual relationship with the opposing party because Retainer Agreement that limits the scope of the representation
the Participation Agreement requires a lawyer to withdraw in the collaborative context and review it with the client. In
from the case, should either party choose to terminate addition, the Collaborative lawyer must fully explain the
various process options available for resolving a legal New Jersey, Opinion 699, Dec. 12, 2005; 2002 WL
matter, including mediation, and litigation, and be direct 2029469 (N.C. St. Bar); and Pennsylvania Bar Assoc.,
with the client about the collaborative process, the pros and Informal Opinion 2004-24.
cons, as well as the risks involved.
7. MRPC 1.2.
8. Cross, Daniel R. & Schneider, Jolene D., “Collaborative
1. Currently, Ms. Salerno practices with Kreis, Enderle, Process, Itself, Doesn’t Lead to Malpractice.” Wisconsin
Callander & Hudgins, P .C., in Kalamazoo, MI. Lawyer, Vol. 75, No.5, May 2002.
2. Opinion No. 115 (http://www.cobar.org/group/ 9. Id.
3. The Collaborative Divorce Model is essentially a team
approach to conflict resolution. This approach may 11. Id.
also involve hiring other professionals such as Divorce
Coaches, Child Specialists, Financial Specialists and
Mediators to resolve all of the issues in the conflict.
13. Opinion No. 115 (http://www.cobar.org/group/
display.cfm?Gen ID=1059&EntityID=CETH). See also,
Colo. RPC l.7(b); MRPC l.7(b).
5. See IACP Ethics Task Force, “The Ethics of the Collaborative
Participation Agreement: A Critique of Colorado’s Maverick
Ethics Opinion.” (http://www.collaborativepractice. 14. Id.
John, “Lessons for Collaborative Lawyers & Other Dispute 15. Id.
Resolution Professional from Colorado Bar Association
Ethics Opinion 115.” (http://www.mediate.com/articles/ 16. Id.
17. Cross, Daniel R. & Schneider, Jolene D., “Collaborative
6. Kentucky Bar Assoc., Ethics Opinion KBAE-425, June Process, Itself, Doesn’t Lead to Malpractice.” Wisconsin
2005; Advisory Committee on Professional Ethics, Lawyer, Vol. 75, No. 5, May 2002.
Bad things that Can happen When
CLients dOn’t update BeneFiCiary
designatiOns aFter diVOrCe
by stephanie a. neal
Introduction II. Michigan Statute – MCL 552.101
Family law practitioners routinely advise their clients to MCL 552.101(4) Pension, Annuity or Retirement Benefits:
update the beneficiaries of their retirement plans, profit Each judgment of divorce or judgment of separate
sharing, pensions, or other qualified retirement plans, maintenance shall determine all rights of the husband and
and life insurance policies ASAP after a divorce is final, wife in all to all of the following:
consistent with the terms of the judgment of divorce and
the plan documents. Some clients will not have the option a. Any pension, annuity or retirement benefits.
to revise beneficiary designations following their divorce
(some plan documents do not allow a change of beneficiary, b. Any accumulated contributions in any pension,
for example, when participant is in active-pay status). The annuity or retirement system.
plan documents may not allow a change of beneficiary
(state court judgment of divorce may not be enforceable c. Any right or contingent right in and to unvested
with respect to a change of beneficiaries if it does not pension, annuity or retirement benefits.
satisfy the requirements of a QDRO set forth in 29 USC
1056(d)3)). Where the plan documents and the QDRO MCL 552.101(2) Wife’s rights in life insurance, endowment
make a change of beneficiaries permissible following a or annuity contracts; and MCL 552.101(3) Husband’s rights
divorce some clients simply never get around to updating in life insurance, endowment or annuity contracts.
the beneficiary designation before they die. The failure to
update beneficiaries will leave the potential recipient of Insurance waiver statutes.
the death benefit uncertain, delay the payment of benefits,
and increase the complexity and expense of the claims
Federal Courts Favor Plan Documents
procedure. This scenario can create competing interests
Under Laws of Preemption –
between federal and state laws. Family law practitioners
6th Circuit U.S. Supreme Court
should be mindful that oftentimes they may have the ability
to do some forum shopping. Several factors may influence
Cases out of the Sixth Circuit generally have enforced Plan
whether to seek relief in federal or state court. When a
documents on file with the Plan Administrator on the date of
conflict between federal and state law surfaces, which
death, even though the designated beneficiary may have
waived all rights to benefits during divorce proceedings.
McMillan v Parrott, 913 F2d 310
Federal Law vs. State Law (61h Cir., Kentucky 1990)
Plan Document vs. Judgment of Divorce Dr. Parrott died less than 24 hours after marrying his third
wife, Claudia. At the time his pension and profit sharing
Client: vs. Client: Estate plans were created Dr. Parrott was married to Barbara
Former Spouse (New Spouse and he named her as his beneficiary and his son from a
or Children) prior marriage as his contingent beneficiary. When he
and Barbara divorced they entered into a joint property
settlement that divided their marital property and contained
The following federal and state laws are often at odds in a waiver clause relinquishing “any and all” claims he
these disputes. or she would have against the other. Dr. Parrott never
designated a new beneficiary and Barbara remained as
I. Federal Statutes – ERISA 29 use 110 I et seq. his designated beneficiary at the time of his death. Upon
his demise, his widow, the children of another marriage
ERISA shall supersede any and all state laws that relate to and his estate made claims against one half the proceeds
any employee benefit plan. ERISA 5I4(a); 29 use 1144(a) in his vested ERISA pension and profit sharing plans. Held:
– Preemption clause. ERISA plans are to be administered according to their
controlling documents. The designation on file with the plan QDRO requirements thus
administrator at the time of his death controls. Barbara’s plan administrator paid group
waiver would not be effective here. For a waiver to be benefits to designated
effective, it must specifically refer to the spouse’s rights as beneficiaries (children); but once
beneficiary in an ERISA plan. paid, district court had discretion
to impose constructive trust upon
McMillan v Parrott 913 F2d 126 (61h Cir 1990) benefits in accordance with state
Parties: Plan vs. Former Spouse, Widow, law if equity so required.
Children & Estate Held: Plan Documents (Beneficiary
Assets in Dispute: Pension & Profit Sharing Plans Designation) controlled but
Result: Former Spouse Prevailed possible state law alternative
considered once released by plan.
Held: Plan Documents (Beneficiary
Ford Motor Co v Ross: 129 FSupp2d 1070 (2001)
Also see Parties: Estate (adult children) and
surviving spouse (divorce
Metropolitan Life Ins 82 F3d 126 6th Cir 1996 pending when participant died,
Parties: Former Souse vs. Estate premarital agreement had been
Assets in Dispute: Life Insurance signed)
Result: Former Spouse Prevailed Assets in Dispute: Savings and stock investment
Held: Plan Documents (Beneficiary plan for salaried employees
Designation) Controlled Result: Constructive trust rejected.
What you cannot do directly
Boggs v Boggs 520 US 833 (1997) (obtain benefits from plan
Parties: Surviving Spouse (2nd administrator) cannot be done
Spouse) vs. Sons of First indirectly (obtain benefits once
Spouse paid to designated beneficiary)
Assets in Dispute: IRA, ESOP, Annuity Held: Plan Documents (Beneficiary
Result: Surviving Spouse prevailed. Designation) Controlled
Held: Surviving spouse’s statutory Unicare Life & Health 35 EBC 2577 (6th Cir 2005)
entitlement to qualified joint &
survivor annuity has priority over Parties: Spouse vs. Heirs/Children
Louisiana community property Assets in Dispute: Life insurance benefits
laws that conflict with ERISA,
frustrate its purpose. Result: Spouse Prevailed
Held: Plan Documents (Beneficiary
Egelhoff v Egelhoff 532 US 141 (2001)
Parties: Former Spouse vs. Heirs/Children
Michigan Courts Favor Divorce Judgments
Assets in Dispute: Pension
under Theory of Waiver versus Preemption
Result: Former Spouse Prevailed
MacInnes v MacInnes, 260 Mich App 280 (2004)
Held: Plan Documents (Beneficiary
Cheryl and Joe MacInnes divorced after a 9-year marriage.
Cheryl Rowley died after the divorce and her ex-husband
Central States v Howell 227 F3d 672 (6th Cir 2000)
was still listed as her designated beneficiary. Met Life paid
Parties: Wife v husband’s children insurance proceeds to him and decedent’s estate sought to
recover it. Ex-husband argued that he was entitled to keep
Assets in Dispute: Non-group and group life policy
the funds because ERISA supersedes the divorce judgment.
Result: Non-group benefits paid to The Court did not view this as a preemption issue (does
spouse per domestic relations it “relate to” an employee benefit plan?) and resolved it
order (husband died during under principles of waiver instead. The Court found that
pendency of divorce). Preliminary when MacInnes stipulated to a provision in the divorce
injunction did not comply with judgment that all rights in any policy of life insurance shall
become payable to the estate of the owner, he knowingly spouse (Gail) was appointed personal representative of
and voluntarily waived his rights as beneficiary of the life his estate and sought to enforce the waiver in the divorce
insurance proceeds from his former wife’s insurance policy. judgment. The Michigan Supreme Court enforced the
waiver in the divorce decree, holding that it was not
MacInnes v MacInnes 260 Mich App 280 (2004) preempted by ERISA. Here, the plan administrator did
distribute the proceeds to the named beneficiary as
Parties: Former Spouse vs. Estate
required by ERISA to the named beneficiary (step one).
Assets in Dispute: Life insurance benefits Thereafter a claim could then be filed against the named
beneficiary alleging that she waived her right to retain
Result: Estate Prevailed
the proceeds (step two). The second phase involved a
Held: Waiver Provisions in Judgment of simple contractual waiver dispute between two parties.
Divorce Controlled It is devoid of the any invasion of the requirement of
ERISA that the plan administrator distribute the proceeds
Moore v Moore, 266 Mich App 96 (2005); to the named beneficiary and therefore, in the view of
Iv denied 475 Mich 884 (2006) the Michigan Supreme Court, is distinguishable from the
U. S. Supreme Court holdings in Egelhoff and Boggs, supra.
Clark Moore named his spouse Hetta as beneficiary of a
life insurance and pension death benefit but then divorced. Sweebe v Sweebe 474 Mich 151 (2006)
The consent judgment of divorce provided that each
Parties: Former Spouse vs. Estate
party’s interest in the other party’s life insurance policies
and retirement benefits were terminated by the judgment Assets in Dispute: Life insurance
of divorce. He died without changing his beneficiary
Result: Estate Prevailed
designations. His estate sought to secure the benefits but
learned from the plan administrator that the funds had Held: Waiver Provisions in Judgment of
already been disbursed to the named beneficiary. Hetta Divorce Controlled
Moore (ex-wife) argued ERISA preempts the Michigan Statute
that requires all divorce judgments to contain language Is a Resolution of the Conflict Coming?
disposing of each party’s interest in the other’s retirement
and pension plans and that this preemption negates any McGowan v NJR Service Corp, 423 F3d 241 (3rd Cir.
claimed benefit waiver. Held: The former spouse who in a 2005), cert denied, No. 05-853, 2007 WL 91575 (U.S. Jan
consent judgment of divorce expressly waived her interest 16,2007) involved an employee who elected to retire and
in the life insurance and pension benefits is not entitled to receive his retirement benefits in the form of an “automatic
retain those benefits, even where she may be the named surviving spouse option” creating a 50% survivor annuity
beneficiary. The court noted it was not bound by federal for his wife, Rosemary (second wife). They later divorced
precedent except from the United States Supreme Court. and Rosemary waived all rights to his pension and signed a
form consenting to the election of James’ first wife (Shirley)
Moore v Moore 266 Mich App 96 (2005); Iv as the replacement beneficiary. The plan benefits manager
denied 475 Mich 884 (2006) did not permit changes to contingent beneficiary election
because he was receiving benefit payments. The retiree
Parties: Former Spouse vs. Estate
again sought to change his beneficiaries after his third
Assets in Dispute: Life insurance & pension benefits marriage to Donna and brought suit seeking a declaration
directing the plan to recognize Rosemary’s waiver of the
Result: Estate Prevailed
plan benefits in the divorce and recognize the subsequent
Held: Waiver Provisions in Judgment of nomination of his third wife (Donna) as the new beneficiary.
Divorce Controlled Held: Plan administrators are not required to look beyond
plan documents to determine whether a waiver has
Sweebe v Sweebe, 474 Mich 151 (2006) been effectuated in a private agreement between a plan
participant and his named beneficiary. In the 3rd Circuit,
Marilyn and Herbert Sweebe divorced in 1986 and these issues are resolved by the plan documents alone.
memorialized in their judgment of divorce an agreement NOTE: On 3/20/06, the U.S. Supreme Court invited the
to give up all interests either of them had in the other’s life Solicitor General to file a brief expressing the views of the
insurance contracts. Herbert had a life insurance policy United States. However, the U.S. Supreme Court denied
provided by his employer; he had designated Marilyn as certiorari on January 16, 2007.
the beneficiary in 1963 and never changed the beneficiary
after the divorce. When he died in 2001 the insurance plan Perhaps you will have the case positioned to reach the U.S.
administrator paid the plan proceeds to Marilyn (ex-wife) Supreme Court and resolve the conflict between federal
because she was the designated beneficiary. His surviving and state law.
Conclusion plan documents and the QDRO requirements set forth in
29 USC 1056(d)(3), family law practitioners will decide
Family Law Practitioners may represent persons with whether to initiate such actions in federal or state court
interests in ERISA-qualified pension or welfare benefit plans or remove actions initiated in state court to federal court.
of a former spouse because they remain as the designated Several factors influence the choice of forum including the
beneficiary of the plan or plans at the time of the participant’s party you represent, the type and amount of assets in dispute,
demise. Assuming the claim otherwise complies with the the plan documents and terms of the divorce decree.
FAMILY LAW SECTION
ON THE INTERNET
the Family Law section’s website contains information
concerning the section’s mission, council information,
public policy reports, upcoming events, news, selec-
tions from the Michigan Family Law Journal, and an
archives. visit us at:
then select Family Law from the sections drop-down list.
FAMILY LAW POLITICAL ACTION COMMITTEE
in 1997 a voluntary Political Action Committee (PAC) was formed known as the Family Law Political Action
Committee. the PAC advocates for and against legislation that directly affects family law practitioners, and
the PAC lobbyist has contact with, and access to, legislators involved with family law issues. Contributions to
the PAC are one way for you to help influence legislation that directly affects your practice as a family lawyer.
the Family Law PAC is the most important PAC, since it affects the lives of so many people, adults and children
alike. Your assistance and contribution is needed to ensure that this PAC’s voice will continue to be heard
and listened to by the legislators in both the state senate and House of representatives. Please help the PAC
by making a contribution today!
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Family Law Appeals
Cheryl A. Fletcher, Esq.
firstname.lastname@example.org Gornbein, Fletcher & Smith, PLLC
Experience and Published Results!
Founding Member and Past President of
Collaborative Practice Institute of Michigan.
Lectures extensively and is the author of
numerous articles on family law.
Case Research, Brief Writing, Oral Argument Outlines
GUARDIAN AD LITEM HANDBOOK FOR DIVORCE PRACTICE (September 2006)
edited by Connie R. Thacker
Table of Contents
Preface Honorable Lisa Sullivan
Introduction Honorable Kathleen A. Feeney
Statutes, Standards, Guidelines and Immunity Donna E. Mobilia, Attorney
Role of the Guardian Marie E. Kessler, Attorney/Referee
The Appointment Charlie L. Clapp, Attorney
and Donna E. Mobilia, Attorney
The GAL Investigation William Lansat, Attorney
and Frank E. Vandervort, Attorney
a. Best Interest Debra J. Colletti, Attorney
b. Questions for the Minor Children Richard S. Victor, Attorney
c. Michigan Protocol Edited by Connie R. Thacker, Attorney
d. ABA Standards Provided by Connie R. Thacker, Attorney
Common Evidentiary Issues Pamela J. Farrer, Attorney
Choosing the Mental Health Experts and HIPAA Honorable Patricia D. Gardner
and Paul W. Simon, Law Clerk
Domestic Violence and the GAL Connie R. Thacker, Attorney
Fees for the GAL John Forczak, Attorney
Removal of the GAL Connie R. Thacker, Attorney
Pricing: Handbook $ 75.00
6% sales tax $ 4.50
Shipping/Handling $ 10.00
Total $ 89.50
To order send check payable to State Bar of Michigan to:
Connie R. Thacker
600 Waters Building
161 Ottawa Avenue NW
Grand Rapids, Michigan 49503
Telephone: (616) 235-3500
Facsimile: (616) 233-5269
CHILD SUPPORT FORMULA & ALIMONY GUIDELINE COMPUTER SOFTWARE
Springfield Publications has available the 2007 Child Support Prognosticator (Version 21) through arrangement with the
Family Law Section of the State Bar of Michigan. Use of the program allows you to easily calculate appropriate child
support considering all formula factors, using the current Michigan Child Support Formula.
Also available is the 2007 Alimony Prognosticator (Version 17). The Alimony Prognosticator calculates spousal support
recommendations using the version of the alimony guidelines detailed in the August/September 1990 Michigan Family Law
Journal, updated for cost of living increases since 1990. Both programs have been updated to include 2007 changes to
federal and state income tax rates.
The Prognosticator programs come with a non-exclusive five-user license for use in Windows 98 or newer compatible
computers. (Additional users can be added for a nominal fee). Each disk is individually prepared, and is customized to
identify your firm or office. Customer support is provided on an "as available" basis from the developer by telephone and e-
mail for installation or operation assistance. If a disk is defective or damaged in shipping, it may be returned to Springfield
Publications for replacement. There are no expressed or implied warranties.
The Prognosticator programs are available CD-ROM (or 3.5”HD upon request). The license fee for each program is $53.00
(which includes $3 sales tax). Shipping for one or both programs is $3.00. The programs are updated annually by
Springfield Publications for published changes in the tax rates and in the Michigan Child Support Formula & Alimony
(Spousal Support) Guidelines. Springfield Publications attempts to notify users of the availability of updates of the
Prognosticator programs, but reserves the right to, at any time and without notice, terminate distribution of the programs.
Note: The Alimony Prognosticator is distributed in cooperation with the State Bar Family Law Section, but is not
specifically endorsed by the State Bar Family Law Section.
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2007 PROGNOSTICATOR ORDER FORM
PLEASE SEND A COPY OF THE PROGRAMS I HAVE INDICATED BELOW. I UNDERSTAND
AND AGREE TO THE TERMS AND RESTRICTIONS STATED ABOVE.
COST: $56 ($53 IF TAX EXEMPT) FOR ONE PROGRAM; $109 FOR BOTH ($103 IF TAX EXEMPT)
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GUIDELINES FOR REQUESTING APPEARANCE OF
THE FAMILY LAW SECTION OF THE STATE BAR OF MICHIGAN AS AMICUS CURIAE
1. requests from litigants should be directed to the Amicus Committee, and may be submitted to any Council member.
2. the amicus request must clearly indicate whether leave to appeal has been requested and/or granted. if leave
has been requested but not yet granted, the requesting attorney must indicate whether an amicus is requested
to support granting leave, or on the substantive issues. Absent exceptional circumstances, no amicus request
will be considered until the Court has granted leave to appeal.
3. Amicus requests must be in writing, accompanied by five copies of each of the following:
a. A short and concise memorandum setting out the legal issue(s) addressed by the appeal;
b. Previously submitted briefs (from both parties) and opinions in the case, together with the order granting
leave to appeal, if appropriate, and a list of the filing deadlines, including the deadlines for the amicus curiae
c. A list of significant cases that an amicus brief should consider, together with copies of any cases outside Michi-
d. A brief statement explaining why the Family Law Council should grant the request. this statement should
specifically reference the Case selection Criteria and the impact of the case on the domestic relations bar as
a whole. the statement should also address the potential expenditure of Council time and resources.
e. For amicus requests prior to the Court granting leave to appeal, a statement setting out “exceptional circum-
stances” to justify Family Law Council involvement.
f. A proof of service indicating that all materials submitted to the Amicus Committee have been concurrently
served on all other counsel in the matter.
4. the requesting party may be required to meet with the Amicus Committee to discuss Family Law Council involve-
ment. in this event, the Amicus Committee shall notify the opposing attorney of the date, time and location of
the meeting and invite them to be present and participate in the meeting. A meeting of the Amicus Committee
will be convened for this purpose at which the requesting party should be prepared to discuss the importance
of the issue(s) presented; how Council support will benefit the party, the bench and the bar at the present state
of litigation; the likelihood of the case eventually progressing to the supreme Court (for cases on which the
supreme Court has not yet granted leave); and practical considerations, such as the level of commitment of the
requesting attorney and his/her client to pursuing the case.
5. the requesting party shall furnish any additional material or information required by the Amicus Committee.
CASE SELECTION CRITERIA FOR REQUESTS FOR APPEARANCE OF
THE FAMILY LAW SECTION OF THE STATE BAR OF MICHIGAN AS AMICUS CURIAE
in passing on a request for appearance as Amicus Curiae, the Amicus Committee of the Family Law section shall
consider the following criteria:
1. Whether the legal issue involved is of substantial interest to the domestic relations bar.
2. Whether the legal issue involves a conflict in case law, or a case of first impression, or a novel or previously
unresolved question, or whether there is a need for clarification of a legal issue, the disposition of which is likely
to have broad-range effects beyond the particular case.
3. Whether the legal issue involved affects fundamental rights of individuals or involves a constitutional question.
4. Whether the case presents an opportunity to ameliorate or reverse prior judicial decisions or legislative enact-
ments which adversely impact on domestic relations law.
5. Whether the issue or case impacts on the practice of family law from the view of practitioners.
6. Whether the briefs of the parties before the court, or briefs of other amicus curiae, adequately address the legal
7. Whether the facts presented are strong enough, and the record sufficiently developed, to support the position
to be asserted.
8. Whether the position to be asserted is appropriate in view of the recent pronouncements of the appellate courts
and consistent with the Family Law Council’s principles and philosophy.
9. Whether there exists sufficient time to request amicus status and properly prepare a brief.
10. Whether sufficient resources are available, given the Council’s amicus caseload, to grant the particular
11. Whether the Court has requested the submission of briefs.
12. Whether the case should be referred to another section of the state Bar.
QDRO/EDRO/FEDERal REtiREmEnt ORDER PREPaRatiOn
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COMPARE: ** $400 or less most orders flat fee
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For more information please contact:
Attorney Mark Cherniak
laW OFFiCE OF maRK S. CHERniaK, P.C.
10242 Joseph Campau • Hamtramck, MI 48212
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Mark@QDRO-Services.com (e-mail) • visit QDRO-Services.com (website)
notice: Special issues of the MICHIGAN FAMILY LAW JOURNAL are for Sale.
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The Michigan Family Law Journal subscriptions. A service charge of $2 before the 10th of each month directly
is available to persons who are not per copy for postage and handling, to Norman N. Robbins, Editor, 5543
members of the State Bar of Michigan in addition to the regular subscription Tadworth Place, West Bloomfield, MI
Family Law Section. The subscription price, is charged for individual copies 48322.
rate for non-members is $30 annually of regular issues of the Journal. This
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