One Court of Justice

In May 2007, Salvatore moved to amend the trial court’s award of spousal support or property award to his ex-wife Mary, or to make installment payments.  The trial court referred the case to the Friend of the Court for an evidentiary hearing.  However, the parties then agreed to submit to binding arbitration.  In September 2008, the arbitrator’s final award orderd Salvatore to pay Mary $485,155, for Mary’s interest in a company, in installments, without interest, and terminated his spousal support obligation effective May 2007.  The arbitrator granted Salvatore credit for the spousal support that he had paid Mary between May 2007 and September 2008, and ordered that he would continue to pay $5,500 a month until he paid the remaining $391,655 to satisfy the award.

In December 2008, the trial court issued an order confirming the arbitrator’s award and denied Mary’s motions to vacate, modify, or correct the arbitration award.  Salvatore filed a motion to reduce his monthly payments, and in June 2009 after a hearing on the matter, the trial court reduced his monthly payments to $3,870 without modifying the total amount that was awarded.  Mary appealed both orders.  In Cipriano v. Cipriano, Nos. 291377 and 292806, a per curiam opinion, the Court of Appeals affirmed the first order and reversed the second order.  Even though Salvatore had ex parte communication with the arbitrator, the Court of Appeals determined that it did not violate the Domestic Relations Arbitration Act (DRAA) because it did not violate the procedures for the arbitration in Mary and Salvatore’s arbitration agreement. Parties are required under the DRAA to sign an agreement for binding aribtration that delineates the powers and duties of the arbitrator.  Unlike the required formality of courts, arbitration allows parties to determine the procedures of their proceeding.  Despite the ex parte communication, the Court of Appeals held that the trial court did not err in confirming the arbitrator’s award.  The Court of Appeals reversed the second order because under MCR 3.602(K)(1), since there was no pending action between the parties, a complaint to modify the arbitration award must have been filed within 21 days (Salvatore filed his complaint several months after), and neither Salvatore nor the trial court referred any provisions in MCR 3.602(K)(2), the grounds for modification of an arbitration award, to justify modification.

While Fred and Janet were married, they acquired two properties as tenants by the entirety. A tenancy by the entirety is a type of concurrent estate, unique to married couples, that includes the right of survivorship.  Although the probate court found that Frank was not a “surviving spouse” under the Estates and Protected Individuals Code (EPIC), MCL 700.2081(2)(e)(i), which states that a surviving spouse will not be treated as surviving the decedent if a breakdown in marriage is shown, the probate court determined that the statute does not destroy a tenancy by the entirety.  Thus, upon Janet’s death, the properties passed to Frank in fee simple absolute.  The personal representative of Janet’s estate brought this action to seek contribution from Frank for the expenses Janet incurred in maintaining the properties prior to her death.  The probate court granted Frank summary distribution on the estate’s contribution claim, and the Court of Appeals affirmed.  In a 4-3 opinion, the Michigan Supreme Court reversed.

In an issue of first impression, the Michigan Supreme Court held that the equitable doctrine of contribution can be applied between co-tenants by the entirety outside the context of a divorce or separate maintenance proceeding.  In an opinion authored by Justice Markman, and joined by Chief Justice Kelly, and Justices Cavanagh and Corrigan, the majority concluded that Frank had been unjustly enriched because he enjoyed sole ownership of the properties as a result of Janet’s maintenance payments, because they otherwise would have been subject to foreclosure. The majority concluded that the equitable doctrine of contribution could be applied in this context, given Frank’s willful absence in the 18 months prior to Janet’s death, the fact that Janet disinherited Frank and attempted to divest him of his interest in the properties, and the finding that Frank was not deemed a “surviving spouse” under EPIC. Read more »

The Court took substantive peremptory action in two cases, ordered oral argument on the application in two cases, and granted leave to appeal to address a criminal-sentencing issue.  All five cases are discussed below: 

Lawrence M. Clarke, Inc. v. Richco Construction, Inc.:  The Court ordered oral argument on the application.  The Court of Appeals affirmed the trial court’s refusal to set aside a default judgment where the plaintiff obtained leave from the court to effect service by alternate means and the defendants failed to present the necessary affidavits to show a meritorious defense.

In re W Minors:  The Court ordered oral argument on the application.  The Court of Appeals majority affirmed the decision of Michigan Children’s Institute’s superintendent denying consent to adopt and dismissing the adoption petitions filed by the Martins, the W minors’ former foster parents.  Judge Shapiro dissented, concluding that the Martins had been deprived of their ability to adopt the W minors because of an error by the Department of Human Services of Genesee County, and would have remanded the case to the trial court for rehearing. Read more »

In a case of first impression, the Michigan Court of Appeals ruled in Cunningham v. Cunningham, No. 285541, that workers™ compensation benefits received during a marriage are marital property only to the extent that they compensate for wages lost during the marriage.  The Court further ruled that the workers™ compensation benefits paid during the marriage, but for wages lost by one of the parties before the marriage, were separate property.  However, when these separate funds were used to purchase the jointly titled marital home, they were commingled and became marital property. Read more »

While the father was incarcerated, the Department of Human Services (DHS) initiated a child protective action regarding his son.  The action consisted of a series of proceedings, including a pretrial hearing, a dispositional hearing, dispositional review hearings, and a permanency planning hearing.  These proceedings ultimately led to a termination hearing where the circuit court terminated the father’s parental rights.  On July 15, 2010, the Court of Appeals published In re D M Kleyla, Minor, No. 294776, reversing the circuit court and remanding for further proceedings.  The Court of Appeals held that the circuit court’s and DHS’s failure to involve the father in most of the proceedings required a reversal of the termination of the father’s parental rights.  As the Court of Appeals explained, the initial dispositional hearings allow the parties to become acquainted with the parents’ abilities and deficits, the needs of the child, and the efforts necessary for reunification.  DHS also failed to offer the father any services, despite the fact that the father’s parole officer indicated that he would be released from prison the next month, which he in fact was.  The Court of Appeals also held the trial court’s ruling to allow the prosecutor to introduce inadmissible hearsay evidence to show that termination was warranted constituted clear legal error.

On Tuesday, July 13, 2010, the Michigan Court of Appeals published its unanimous opinion in Joe Doe v. John Doe I, No. 285655.  In Doe, the Court concluded that an Emergency Medical Technician (“EMT”) was not liable for his failure to report suspected child abuse in accordance with MCL 722.623, where the perpetrator of the abuse was another EMT who was not related to the child, did not have substantial and regular contact with the child, had no close personal relationship with the child’s parents, and was not a person responsible for the child’s health or welfare.   Read more »

On July 1, 2010, the Michigan Supreme Court published its Opinion in Foster v. Wolkowitz, holding a presumptive award of custody in an acknowledgment of parentage does not constitute an “initial custody determination” under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL § 722.1101 et seq.  While a  presumptive award of custody is “part of a valid agreement into which the parents entered, and may be set aside only when a custody determination has been made by the judiciary,”  the presumptive award of custody was not a court order and cannot be an initial custody determination under the UCCJEA.  Therefore, because the UCCJEA requires initial custody determinations take place in the child’s home state, unless the home-state court expressly declines jurisdiction, and Illinois has been found to be the child’s home state, the Michigan courts were without power to act unless and until the Illinois courts declined jurisdiction. Read more »

The Michigan Supreme Court took substantive action in six cases:

In re P.M. (Department of Human Services v. Mullins), No. 140983:  The Court granted oral argument on the application.

Iron Mountain Information Management, Inc. v. Naftaly, Nos. 140817-140824:  The Court granted leave to appeal limited to the issue of whether the circuit courts have subject-matter jurisdiction over appeals from a decision of the state tax commission regarding property classification.  The Court ordered that the case be argued and submitted with Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814.

Midland Cogeneration Venture Ltd. v. Naftaly, No. 140814:  The Court granted leave to appeal to address the same issue as Iron Mountain.

People v. McCauley, No. 140422:  The Court ordered oral argument on the application to address whether a defendant can raise a challenge to the effective assistance of his counsel during the plea-bargaining process where the defendant rejected the plea offer and subsequently received a fair trial, and if so, what remedies should be available to the defendant.  The Court invited amicus briefs from the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan.  Our post on the Court of Appeals’ decision conditionally vacating the defendant’s sentence is here.

People v. Breidenbach, No. 140153:  The Court ordered oral argument on the application to address three issues:  (1) whether the Court should reconsider the rule of People v. Helzer, 404 Mich. 410 (1978), that a determination of sexual delinquency is a separate, alternative form of sentencing rather than a penalty enhancement; (2) whether the defendant waived or forfeited the right to a second jury’s determination of his status as a sexual delinquent; and (3) whether any error was harmless or harmless beyond a reasonable doubt.  Again, the Court invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to submit amicus briefs.  

Friend v. Friend, No. 139165:  In lieu of granting leave to appeal after having heard argument on the application, the Court remanded the case to the Houghton County Circuit Court for clarification as to whether the alimony award was alimony in gross or periodic alimony.  The Court further ordered that as a precondition of the trial court clarifying the nature of its award, the plaintiff purge herself of any outstanding findings of contempt within 90 days.  The Court denied leave to appeal on all other issues, including whether the Court should adopt the fugitive-disentitlement doctrine.  Justices Corrigan, Markman, and Young dissented and would have applied the fugitive-disentitlement doctrine and condition consideration of the appeal on plaintiff’s compliance with trial court’s orders.

The Court also denied leave to appeal in six cases.

On Tuesday, June 22, 2010, the Michigan Court of Appeals published its opinion in Rose v. Rose, Case No. 286568.  In Rose, the Court of Appeals considered when a trial court may modify a party’s spousal support obligation, under MCR 2.612(C)(1), where the Judgment of Divorce provides that the spousal support award is nonmodifiable.  Ultimately, the Court of Appeals concluded that the failure of defendant’s business did not constitute an extraordinary circumstance allowing the Court to modify the spousal support award, pursuant to MCR 2.612(C)(1)(f), where vacating this provision of the Judgment of Divorce would detrimentally affect plaintiff-wife’s substantial rights.  A copy of the Court’s opinion is here.  Our previous post discussing the oral argument in Rose can be found here. Read more »

On June 8, 2010, the Court of Appeals approved for publication its April 20, 2010 per curiam opinion in People v. Likine, No. 290218.  That case arose from the defendant’s failure to pay court-ordered child support.  Initial support payments were under $200/month, but based upon hearings that revealed the defendant’s purchase of a $500,000 home and new car, were raised to over $1,000/month.  Defendant failed to make the adjusted court-ordered payments and was eventually charged with felony failure to pay child support.  The trial court ordered that defendant would not be permitted to raise a defense of inability to pay, because the charge was a strict liability offense.  The defendant was convicted.  On appeal, she argues that the underlying statute was unconstitutional based on precedent that holds that the Legislature cannot impose the duty to perform an act upon a person, which is impossible for that person to perform, and then make such non-performance a crime.  The Court of Appeals found that the precedent did not apply in this case, noting that the defendant had a full opportunity for due process regarding the child-support amount and her ability to pay in the civil context.  In those proceedings, the civil court had determined that she did, in fact, have the ability to perform the ordered support obligations.  Additionally, she argued that the trial court’s decision preventing her from raising the inability-to-pay defense was a due-process violation.  Again, the Court of Appeals disagreed, finding that the right to present a defense is not an absolute right, and that the inability to pay was irrelevant to any fact at issue in the case.  Thus, the Court of Appeals affirmed the conviction.

On Wednesday May 26, 2010, the Michigan Court of Appeals issued its opinion in In re Mason Minors, Case No. 139785.  In Mason, the Court reversed the Court of Appeals’ opinion which had affirmed the trial court’s decision to terminate the respondent-father’s parental rights.  The Court determined that the trial court had committed several legal errors and that the Department of Human Services had failed to engage the respondent in the proceedings.  In particular, the Court held that the trial court and DHS had failed to facilitate the respondent’s participation in the termination proceeding by telephone, as required by MCR 2.004, and provide the respondent with a copy of the parent-agency agreement.  In light of these errors and failures, the Court reasoned that the termination of the respondent’s parental rights was premature.  Read more »

On Wednesday, May 12, 2010, the Michigan Supreme Court issued an order staying further trial court proceedings in the matter of People v. Baumer, Case No. 141000, pending a decision on the state’s application for leave to appeal.  The state is seeking review of the April 12, 2010 Court of Appeals order denying the state leave to appeal. 

The Court also issued an order directing the Department of Human Services to answer the application for leave to appeal in In re CW, BW, and DW Minors, Case No. 140841.  The Court further invited the children’s lawyer-guardian ad litem to answer the application within the same 28-day time period. 

Justice Corrigan concurred with the Court’s order but wrote separately because she would have directed the Department of Human Services to address the following issues in its brief: (1) whether the decision of the Michigan Children’s Institute Superintendent may be deemed arbitrary and capricious if the Superintendent relied on evidence that he knew, or should have known, was substantially incomplete or inaccurate; (2) whether the Superintendent relied on such evidence in this case where he based his decision upon the opinions of DHS staff members who had past adversarial interactions with the petitioners and when the children’s lawyer-guardian ad litem had expressly favored adoption by the petitioners; (3) whether there was any evidence to support the Superintendent’s conclusion that the petitioners had an inadequate ability to meet the developmental needs of the children; and (4) whether the Superintendent erred by failing to consider that the children’s older sister is placed with the petitioners, as required by MCL § 710.22(g)(x) and 42 USC § 671(a)(31)(A).  A copy of the Court’s order is here.

On May 11, 2010, the Michigan Supreme Court issued its per curiam opinion in Pierron v. Pierron, No. 138824, affirming the Court of Appeals’ decision to vacate the trial court’s order.  In this case, the plaintiff and the defendant have two children from their marriage.  The divorced parents share joint legal custody, and the defendant has primary physical custody.  The Michigan Supreme Court held that a change of schools 60 miles away did not legally effect a change in the established custodial environment of the children.  Justice Corrigan issued an opinion concurring in part and dissenting in part.  Read more »

On Wednesday, March 24, 2010, the Michigan Supreme Court denied eight applications for leave to appeal, denied one motion for reconsideration, and ordered oral argument on the application for leave to appeal in Janson v. Sajewski Funeral Home, Inc., No. 140071.   The Court also took substantive action in two criminal and two civil cases which are discussed after the jump. Read more »

On March 4, 2010, the Michigan Court of Appeals issued its published opinion in Department of Human Services v. Beck (In re Beck), No. 293138.  The court held that the trial court properly terminated father-respondent’s parental rights while continuing his child-support obligations.  The court’s opinion may be found here.

Read more »

On January 8, 2010, the Michigan Supreme Court peremptorily resolved two cases, denied leave to appeal in three cases, and ordered oral argument on the application in one case.  People v. Smelley is addressed in a separate post.  The remaining cases in which the Court took substantive action are addressed below.

In the apparently inaptly titled action Friend v. Friend, the Michigan Supreme Court ordered a MOA to address, among other issues, whether the Court should adopt the fugitive-disentitlement doctrine to dismiss the defendant mother’s appeal because she has failed to comply with counseling and parenting-time provisions in the parties’ divorce judgment and then refused to appear for hearing in contempt of a court order.  The Court invited the Family Law Section of the State Bar of Michigan and the Michigan Chapter of the American Academy of Matrimonial Lawyers to submit amicus briefs.  Read more »

On January 5, 2010, the Michigan Court of Appeals heard oral argument in the matter of Rose v. Rose, Case No. 286568.  On appeal, the Court is considering when, if ever, a trial court can modify an award of spousal support where the judgment of divorce states that the spousal support award cannot be modified.  This case is of particular significance to family law practitioners as the Court’s the decision will likely affect the manner in which parties negotiate divorce settlements and potentially could open the floodgates of post-judgment requests for modification of what have been heretofor non-modifiable spousal support. Read more »

On December 29, 2009, the Court of Appeals published its opinion in Skelly v. Skelly, No. 287127.  In this case, the Court of Appeals overturned a circuit court’s determination that in a judgment of divorce, a wife was entitled to a share of her husband’s retention bonus, and any future bonuses he might earn at his current job.  In this case, the retention bonus involved an installment paid by the employer in 2007, and future payments to be made in 2008 and 2009, as long as the husband remained employed with his current employer.  These bonuses, however, were contingent, and he would have to repay any such bonuses if he left the company before a certain date in 2009.  The trial court ruled that all of the retention bonus installments be divided between the divorcing parties.  The Court of Appeals, however, concluded that none of those bonus installments could be considered “earned” until the husband reached the relevant employment date in 2009—after the marriage had ended.  Thus, the Court of Appeals found that the lower court erred, and none of the retention bonus was earned during the marriage, and thus was not subject to division.  Similarly, the Court of Appeals found that potential future bonuses were not earned during the marriage and are not subject to division.

On December 22, 2009, the Court of Appeal published its decision in In re MKK, No. 292065.  Here, the Court addressed the priority between simultaneous paternity and adoption actions involving the same child.  The Court of Appeals concluded that while adoption proceedings are generally to be completed as quickly as possible and given priority on a court’s docket, a paternity action can take priority under certain circumstances pursuant to a statutory exception that allows for adjournment/continuance of an adoption proceeding upon a showing of “good cause.”   According to the Court of Appeals, “good cause” exists to stay adoption proceedings in favor of a paternity action where there is no dispute as to biological paternity, where the paternity action was commenced without unreasonable delay and was not filed simply to thwart the adoption proceedings.  Read more »

On Wednesday, December 16, 2009, the Michigan Supreme Court granted leave to appeal in Foster v. Wolkowitz, Case No. 139872.  On appeal,  the Court ordered the parties to address (1) whether the Court of Appeals erred in relying on the Michigan Acknowledgment of Parentage Act (“MAPA”), MCL § 722.1001, et seq., rather than the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), MCL § 722.1101, et seq., to determine that the Monroe Circuit Court had jurisdiction over this child custody dispute; (2) whether, if the Court of Appeals correctly relied on the MAPA, the statute violates the Equal Protection Clauses of the Michigan and United States Constitutions by creating a suspect class of unmarried fathers who are treated differently than married fathers; and (3) if Illinois is the “home state” of the child under the UCCJEA and therefore properly has jurisdiction over this dispute, whether Michigan is nonetheless a more convenient forum for resolution of this case. Read more »