Monday, September 28, 2015

Completing Divorce in One Year

In 2003, the Michigan Supreme Court issued an administrative order requiring all county family court judges to complete divorces within a year of their filing. Since that time, county family court judges have struggled to comply.

Under the Supreme Court's administrative rule, a family court must submit numbers of filed and completed cases to the State Court Administrative Office. All cases listed on the docket that were not, or are not going to be completed within the year must be accompanied by an explanation from the judge.

An elected sitting family court judge does not want to be explaining her slow-moving family court docket to state court administrators. This would only risk getting on the Michigan Supreme Court's radar.

Earlier this month, a Wayne County Family Court judge had the misfortune of lagging in this regard so badly that a formal complaint was filed with the Judicial Tenure Commission. Apparently, this judge developed a very "fast-and-loose" procedure whereby he would take brief testimony as to the breakdown of the marriage, or even accept the representations from counsel if the parties were not present, in order to count the case among those "resolved" when it came time to report his numbers to the SCAO each month.

Another tactic adopted by this judge back in 2010 was to dismiss the case from his docket, but then allow the lawyers to continue to work on the case. This way, the judge's numbers could stay off the Supreme Court's radar.

The ploy did not work, however, resulting in this Supreme Court order of rebuke. That did not prevent the good judge from developing other tactics to stay abreast of his administrative requirements.

All this has led us to question the wisdom of requiring divorces to be completed within one year. In most cases this is sufficient time to start, negotiate and complete a case.

Not all cases, however, fit the typical pattern. In some cases, there is the obstructionism, recalcitrance, and obstinance of one or both parties. There is also the lawyers’ and the judge’s agendas.

Complex high-value marital estates, for example, often require extra time to evaluate businesses, or assess stock grant contracts or non-qualified compensation packages. In other cases, custody disputes need extra time to sort out an acceptable resolution in the best interests of the minor children.

We suspect in such instances, a judge could avail herself of a reasonable explanation that would be acceptable to the case-counters.

Not all counties lend themselves to complete every case on the docket in a year. In Wayne County, for example, there may be a higher per-judge caseload then in some out-county family courts that have less population and thus, fewer cases filed.

Attempting to deceive the Supreme Court is never the way to go. Despite a docket backlog, the public and the judiciary should be able to expect that every judge in every county will use their best efforts to keep the cases on their docket on track and will see them through to timely completion.

This is just how the system is designed to work. Parties to a divorce do not wish to prolong their agony.

If you are experiencing a divorce that is going to drag out longer than one year, consider contacting our law firm for a free consultation so that your option of making a change of counsel can be assessed.

Friday, September 25, 2015

False Child Abuse and Neglect Complaints

Sometimes, co-parents take an overly aggressive approach to reporting perceived wrongs to their county Child Protective Services. If this becomes a habit, there are steps the target parent can take to protect their custody position in a high-conflict family court proceeding.

First, making a false claim of abuse or neglect is a felony. The target parent should contact local law enforcement to see whether a case can be charged.

Second, if a series of false or unfounded reports is made to CPS, ask the case worker to report this conduct to the Friend of the Court. This could result in a warning being issued or a modification of custody.

Third, the Court of Appeals has recognized that a co-parent that lodges false reports of abuse or neglect negatively impacts their own custody chances. The Court of Appeals has directed family courts to take this into account when making a custody determination in a high-conflict case.

The purpose behind these measures is not to punish the offending parent but rather, to advance the best interests of the minor children who are often in the middle of such disputes. When a CPS complaint is lodged, regardless of merit, interviews with the minor children are triggered as well as visits to the children's school and the parents' homes.

When a series of baseless claims are made, these interviews and visits become onerous and offensive. The offending parent need to be shut down.

If you are the target of false claims of child abuse or neglect, contact our law firm in order to discuss your options at a free consultation.

Friday, September 4, 2015

Family Court Judge Refuses Divorce

Chancellor Jeffrey Atherton
Sometimes, a judge is just looking for some cheap professional attention. That's what we suspect occurred this week when a Tennessee family court judge cited the SCOTUS marriage equality decision, among other reasons, as the stated basis for denying an elderly couple's divorce.

After hearing from 7 witnesses and considering dozens of exhibits over 4-days, Hamilton County Chancellor Jeffrey Atherton refused to grant the divorce sought by the litigants. And now, perhaps by the Chancellor's design, here comes his 15-minutes of ill-conceived fame.

In denying the requested relief upon completion of the proofs, the Chancellor stated that because of the SCOTUS decision in Obergefell v Hodges, the Supreme Court now needed to clarify, "when a marriage is no longer a marriage." The judge's reasoning is flawed to the extent that whatever our High Court has defined as a fundamental right within the context of marriage has nothing relevant to do with a state law divorce proceeding.

Chancellor Atherton further concluded that because the SCOTUS has deemed Tennesseans incompetent to define the central institution of marriage, he is somehow judicially hamstrung on the performance of his sworn duties. Those duties would include presiding over and resolving a contested divorce proceeding through a judgment.

What the...?  Is this guy trying to match wits with Kim Davis over in Kentucky?

Divorce proceedings rarely go to trial. When they do, one of the findings a family court judge is required to make is that the objects of matrimony have been destroyed such that there is no reasonable likelihood the marriage can be repaired; the ole "irreconcilable differences".

To properly conduct a divorce trial, the family court judge then needs to make factual findings in the case -usually about the parties' property in a case like this, without children- as well as make other legal decisions, i.e. whether alimony is appropriate. Then, the judge must issue a judgment of divorce setting forth the decisions of the court.

In this case, after 4-days of testimony, Chancellor Atherton concluded the marriage could be salvaged and hoped the couple reconciled. It appears to us, however, that this couple has become victim to the judge's personal desire to grab headlines by stating his political differences with the Obergefell marriage equality decision.

Divorce is difficult enough for couples without this form of petulant judicial grandstanding. We will continue to monitor this case in order to see what "work around" is utilized to correct this judge's harmful error.

In blogging about the marriage equality civil rights movement over the past decade, we predicted that, if the SCOTUS established a fundamental right to marriage, as it did, there would be plenty of instances where people in positions of power, like this  county judge in Tennessee and like the court clerk in Kentucky, simply refuse to obey the law of the land.

Thursday, August 13, 2015

Famous Mother Loses Custody

As divorce lawyers, we see many custody battles unfold in the family court. Over the years, our law firm has developed experience in the defense and the prosecution of child custody battles; we have become students of the industry.

When not actively engaged in a custody proceeding, our lawyers monitor the legal and popular press for interesting cases. This week, the incredible custody battle of Gossip Girl actress Kelly Rutherford caught our attention.

This sad case has everything: million dollar divorce lawyers, a pricey detective, a working bi-coastal actress mother, a European businessman father, a case in LA, a case in New York City, bankruptcy, restraining orders, State Department involvement, a White House plea, and two very well-traveled young children.

While Rutherford was pregnant with their second child in 2008, the briefly married couple filed for divorce in Los Angeles County, California. The father, German business entrepreneur David Giersch, sought sole custody and the couple began a protracted battle over labels like legal custody and physical custody.

This label battle soon began to take on real-life dimensions when Rutherford sought to move the toddlers to NYC where she was filming a season of Gossip Girl.  Father objected on grounds that the actress' job was detrimental to their children and that NYC was unsafe.

When Rutherford believes she is being followed by Giersch, she obtains an injunction; a protective order. She alleges Giersch is abusive during parenting exchanges. She hires a detective to surveil father for three days; for his part, Giersch denies the allegations of abusive conduct.

In August 2012, the family court judge orders the children to live with their father in France and Monaco.  This ruling was affirmed a year later and the children left for Europe last week to live, permanently, with their father.

Along the way, Rutherford has spent over a million dollars on divorce lawyers and private investigators, has filed for bankruptcy, and more recently submitted a petition to the White House asking that the president get involved in her case.

So what goes into a family court judge's calculus in relocating two American children to Europe? One of the major sticking points seems to be the mysterious revocation of father's visa, barring him from entry into the U.S. Some say Rutherford was behind the move, accusing her ex-spouse of running guns and drugs across international boarders.

Another problem for mother was the judge's dim view of her credibility; in the opinion, the judge pointed to mother's lack of candor relative to testimony about her work schedule and other important matters. If Rutherford did arrange to get Giersch's visa revoked, she shot herself in the foot to the extent that she basically forced the judge's hands.

Change of domicile cases are among the most disruptive scenarios to occur in family court; they are much more prevalent in our mobile society.

Further, once the relocation was affirmed, the LA County family court washed its hands of the entire case, ruling that it no longer had jurisdiction over the matter. Oddly, this did not occur before that court strangely awarded Rutherford temporary sole custody over her children, perhaps as a gesture to allow mother to "say goodbye".

From there, Rutherford recently re-filed in NYC. It was Gotham from which the children departed last week for Europe.

Although she has free access to conduct parenting time when in Monaco, the mechanics of Trans-Atlantic parenting and the lack of an enforcement mechanism are daunting, even for a famous actress. So for now, lives lay in ruin at the hands of two famously warring parents.

In such cases, there is very little that a family court can do to patch such a yawning rift. If you are facing custody and parenting troubles, consider giving our law firm a call to schedule a free consultation.

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.

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.