Thursday, July 30, 2015

Spousal Support Always Modifiable Once Awarded by Family Court

If the parties to a divorce do not settle their divorce, then a family court will decide the issues in the case, including spousal support and whether income should be imputed to a non-earning spouse. The court's decision is discretionary thus, what the court orders will stand unless that powerful discretion is somehow abused; that is precisely what happened in Loutts v Loutts regarding the issue of alimony.

The Loutts case is an interesting case study on the valuation of a business and the calculation of alimony. Both spouses had PhDs and both were "hands-on" in the running of a global laser business developed by husband.

The Washtenaw Circuit Court cannot seem to get the alimony equation correct as the case has made two trips to the Michigan Court of Appeals and the appellate court has twice reversed the decision of the lower court. The first appellate decision addressed the "double dip" concept of alimony: where the business is valued by capitalizing the income derived from the operation of the business while, at the same time, factoring that same income stream into a spousal support calculation. The court cannot count the same dollars twice. 

The second appeal involves the statute that allows alimony to be modified by the family court upon the petition of either party. The right to modify alimony, once awarded by the trial court, cannot be extinguished according to this case. The only way to foreclose any future modification of alimony is for the parties to make this agreement themselves, and to expressly memorialize this bar in their initial divorce decree.

A trial at which a family court makes the initial alimony determination will keep the question open, subject to modification, apparently forever. The family court cannot place what is known as a "presumptive term" on an alimony award and then deny any request for modification filed after the term expires. Once awarded by the family court, the question of spousal support remains open.

The irony of this case is that, although the reviewing court held it was error to foreclose the request for modification of alimony, it concluded the error was harmless because Wife did not persuade the family court that there was a change of circumstances to merit an extension of her alimony payments.

Sunday, June 7, 2015

Michigan Legislature Again Seeks to Restrict Divorce Trolling

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce. 

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate again has taken action with SB 351, a seemingly perennial bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 21-days after that person is officially served with the divorce papers. 

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose. 

This latest Senate bill, introduced toward the end of May, is the third attempt in 4-years to block the questionable practice. 

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole. 

In the past, industry professionals opposing past iterations of the measure have indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  

Citing an undue restriction to commercial free speech, the Michigan Supreme Court declined to support the bill through a requested amendment to the professional conduct rules that would prohibit trolling for divorce clients. The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that insufficient empirical data was presented in support of such a procedural rule change. 

When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret.  We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk's court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper. 

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 351 [and its immediate predecessor SB 981], as proposed, may suffer from constitutional defects. First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message. Regrettably, family law is a complex industry featuring a busy intersection where advertising and public records collide. 

Second, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.  Third, opponents cite to the right of timely notice when being sued and note that no other area of law imposes similar restrictions on the bar.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

www.clarkstonlegal.com 
info@clarkstonlegal.com

Wednesday, June 3, 2015

Alcohol Abuse Results in Parenting Conditions


Earlier this month, the Michigan Court of Appeals addressed alcohol abuse and parenting conditions in a rare published opinion; rare in that parenting time appeals do not get published very often. This case, Kaeb v Kaeb, comes to us from Ottawa County Family Court and sheds some light on the proper way in which to conduct an evidentiary hearing seeking a modification of the parenting schedule.

Like many cases we see, the parents in Kaeb were litigious, going back to court following the entry of their judgment of divorce, in order to modify their custody and parenting arrangements. Mother alleged Father was an alcohol abuser and compulsive gambler; she alleged this conduct affected his ability to conduct proper parenting time.

Apparently, at his lowest point during their divorce proceedings and at the nadir of his alcohol abuse, Father agreed to a small amount of supervised parenting time. As he addressed his demons over time and climbed onto the sobriety wagon, he eased into increased contact with his minor children. Eventually, Father sought to modify his parenting schedule by removing the conditions that he attend regular AA meetings.

When such cases reach a critical juncture, the family court often holds an evidentiary hearing where each side can put evidence [in the form of testimony and documents] into the record to support their contentions. Only evidence about events and circumstances that occurred since the entry of the court's last parenting or custody order is relevant and thus admissible.

Accordingly, in support of his motion, Father submitted a psychological evaluation and a letter of discharge from his therapist.  While Father testified that he was in compliance with the court's prior order by addressing his alcohol abuse and attending AA meetings, he also may have been able to take advantage of a therapeutic alliance with his counselor.

Shortly after the entry of the court's prior order placing conditions on his parenting time, for example, Father generated a letter from his therapist stating there was no clinical need for him to attend regular therapy sessions or AA meetings.  Also, Father did not produce AA "sign-in" sheets at the hearing, only his self-serving testimony about attending the meetings.

The family court was troubled by this sketchy record, concluding that Father was in compliance with its previous orders. But the court did not find that Father satisfied the evidentiary burden of demonstrating a proper cause or a "change in circumstances" to justify any modification of previously imposed conditions to his parenting time. Further, the family court sanctioned Father for attorney fees in bringing what it characterized as a frivolous motion.

In reversing the family court, the Court of Appeals noted that this case did not involve a change in custody or a change to the established custodial environment. Rather, the appeals court viewed Father's burden in the context of modifying a condition to his parenting time.

www.clarkstonlegal.com
info@clarktsonlegal.com


Saturday, May 30, 2015

Custody Bills Protect Soldiers

Yesterday, Governor Snyder signed Senate Bill 09 and tied barred House Bills 4071 and 4482 which provide protections for active service members involved in family court child custody proceedings.  The Senate bill stays custody proceedings during a service member's deployment while the House bills provide similar protection relative to court-ordered parenting time.

The new legislation simply amends the Child Custody Act, an oft-amended piece of legislation. The amendments provide service members protection in the form of a stay of proceedings until the period of deployment ends.

In order for the service member to avail himself or herself of the protections of the new laws, that service member must request the stay from the family court. In cases of emergency, a family court judge would still have the power to modify the custody or parenting time of a minor child.

These bills received unanimous support in both legislative chambers, perhaps due to the case of an active duty father who temporarily lost custody of his child while on a 6-month submarine deployment for the U.S. Navy in the Pacific Ocean.

If you or a family member are active duty military and need assistance for a family law matter, contact our law firm for a free consult. We provide fee discounts for active military.

www.clarkstonlegal.com
info@clarkstonlegal.com


Friday, May 29, 2015

Series of Moves Violates 100-Mile Rule

Earlier this month, the Michigan Court of Appeals again considered the 100-mile rule in a published decision. The case is significant to the extent that it provides parents guidance on the location of their post-divorce domicile and is yet another case that illustrates the concept of joint custody.

In Eickelberg v Eickelberg, the parents were awarded joint legal custody. Father was active military and made two job-related moves after the divorce: first from the former marital home in Clinton Township to Perry, MI 86 miles away; then on to Marshal, MI which was 126 miles from the former marital home. 

Understandably, Father's move complicated his parenting time; especially his mid-week parenting contact with the children.  So he moved the court to modify the parenting schedule and to adjust the parenting transition point to a location closer to his new home in Marshal.

Equally understandably, Mother objected arguing that Father's series of moves violated the 100-mile rule which prohibits a custodial parent from moving to a location more than 100-miles from the child's residence at the time the divorce or custody proceeding was initiated. The Court of Appeals rejected the Macomb County family court's calculation that the miles to be measured were only from the Father's most-recent residence; i.e. from Perry to Marshal.

Since Father's second move was more than 100-miles from Clinton Township, he was required to obtain Mother's approval prior to the move, or the family court should have held a hearing to consider the so-called "change of domicile" factors in order to determine whether the proposed change is in the best interests of the minor children. In addition, to further complicate the legal analysis, because Father's move changed the children's "established custodial environment", the eleven statutory best interest factors also should have been evaluated by the lower court.

Consequently, the case was sent back to the Macomb County family court to conduct such a hearing.

www.clarkstonlegal.com
info@clarkstonlegal.com

   Clarkston Legal

Friday, November 21, 2014

Unfounded CPS Complaints Lead to Loss of Custody

We have seen this movie at our law firm on a few occasions.  A maladjusted parent attempts to enlist the machinery of the state in a bid to gain custody by making false or trumped-up allegations of abuse against the other spouse or co-parent.

Earlier this week, the Michigan Court of Appeals affirmed a St. Clair County Family Court judgment that awarded Father sole legal custody and limited Mother's parenting schedule to minimal supervised sessions largely on the basis of Mother's series of unsupported allegations of abuse and neglect made to CPS.

These unfounded allegations of abuse and neglect, combined with Mother's overall campaign of alienation against Father, left Mother with only two hours of supervised parenting time.  While it appears she brought this on by her own actions, we never like to see a parent stuck with such limited parenting time.

In this case, however, Mother was her own worst enemy.  The trial testimony not only featured credible evidence of parental alienation and unfounded CPS complaints, Mother also subjected the children to multiple forensic interviews, while she violated the family court's temporary parenting orders; a recipe for disaster to be sure.

Additionally, to make matters even worse for the children, Mother assaulted Father on several occasions, sometimes in front of these poor children.  As a result, the older child now has issues of his own and Mother is "overwhelmed" by her son's issues.

From a professional perspective, we note here at our law firm that the trial court's decision was deemed to be well-reasoned and supported by applicable authority.  With regard to the appellant-Mother's challenge to her limited parenting time, the Court of Appeals stated:
Other than to argue that she was justified in reporting the issues to CPS and that she loved and cared for the children, defendant has done little by way of argument to demonstrate that the trial court erred in determining parenting time.  Trial evidence supported the factors mitigating against greater parenting time, and the trial court’s findings with respect to parenting time were not against the great weight of the evidence.  Importantly, defendant has not been removed from the children’s lives as she has weekly parenting time, and the trial court’s order –as it must- left open the possibility that she can be granted more time in the future.
So the Mother in this unfortunate case will need to earn herself a spot back into the lives of her children.  Thus, she would be well-advised to start playing by the rules: i.e. following the court orders issued in her divorce case.

The simple lesson here is, even when your adult relationship has deteriorated to the point of divorce, you must make every attempt to co-parent with the person with whom you procreated for the sake of the children.

www.clarkstonlegal.com
info@clarkstonlegal.com


Saturday, October 18, 2014

Senate Bill Prevents Lawyers From Soliciting in Newly Filed Divorces

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce.

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate has taken action with SB 981, a bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 14-days after that person is officially served with the divorce papers.

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose.

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole.

At hearings before the Senate Judiciary Committee last month, lawyers opposing the measure indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  Opponents of the bill also point out First Amendment considerations and argue that family law is a complex industry in which advertising is necessarily involved.

The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that no empirical data was presented in support of such a procedural rule change.

When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret.  We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk's court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper.

Unfortunately, it must be noted that our state legislature sometimes does find it necessary to regulate the practice of law in Michigan via criminal statutes.  For example, ambulance chasing in personal injury cases is prohibited for 30-days after the date of the accident.

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 981, as proposed, may suffer from constitutional defects.  First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message.  Also, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

www.clarkstonlegal.com
info@clarkstonlegal.com