Recent Developments in Family Law

Over the past several months, there have been several new case decisions and two statutory amendments in the area of family law.

Pension Benefits
HB 5953 (2006 PA 0288) amends MCL 552.101(5), which addresses division of pension and retirement benefits in a divorce or separate maintenance judgment.  For all such actions filed after September 1, 2006, if the judgment provides for the assignment of rights in a pension or retirement benefit, a proportionate share of all components of the benefits shall be included in the assignment unless the judgment expressly excludes one or more components.   The components include supplements, subsidies, early retirement benefits, postretirement benefits, surviving spouse benefits and death benefits.  The legislation reverses the Court of Appeals decision in Quade v Quade, 238 Mich App 222 (1999), which provided that a share of any component of a pension benefits could only be transferred if expressly granted in the judgment of divorce.

Grandparent Visitation
SB 420 (2006 PA 353) amends the grandparenting time statute, MCL 722.27b, to correct the rights of a grandparent whose grandchild was adopted by a stepparent.  The amendment provides that a stepparent adoption does not terminate the right of the parent of a deceased parent of the child to seek grandparenting time with that child.  The act is effective September 18, 2006.

Case Decisions
 

Kilbourn v. Morrison

Michigan Court of Appeals, June 20, 2006

Docket No. 267211 (Unpublished)
 

The Michigan Court of Appeals ruled that the PPO against the respondent was properly granted. Respondent contended that there was no reasonable cause to believe that he would commit any of the acts listed in MCL 600.2950, the stalking statute. The Court concluded that witness testimony suggested otherwise and that although the respondent never physically assaulted Petitioner and made no direct threat to her safety, there were several recent frightening incidents that justified the granting of a PPO. The Court also held that according to MCR 3.707 (A)(2), the Respondent was entitled to a hearing on the motion to terminate or modify a personal protection order and the lower court erred when it denied the hearing.

 

Lentz v. Lentz

Michigan Court of Appeals, July 6, 2006

Docket No. 257898 (Published)
 

The Court of Appeals affirmed the trial court’s ruling that the separation agreement was equitable and enforceable, and it granted divorce and distribution of the property pursuant to the agreement. The parties in the case separated in anticipation of divorce and negotiated an agreement as to the disposition of the marital property. During the negotiations the plaintiff represented that his business was substantially in debt. The defendant did not examine the financial records and asserted that the agreement should be set aside because the plaintiff coerced her into the agreement and failed to provide a valuation of his businesses. The Court of Appeals notes that the agreement was negotiated over a period of six weeks and that the defendant had ample opportunity to review the business records.

 

Wagner v Wagner

Michigan Court of Appeals, August 17, 2006

Docket No. 268250 (unpublished)
 

The Court of Appeals held that Friend of the Court reports are not admissible as evidence absent the agreement of the parties.  The court examined the amendment to MRE 1109(b)(9), which provides that the rules of evidence do not apply to the court’s consideration of a report and recommendation regarding custody submitted by the friend of the court.   The court concluded that rule does not state that a report of the FOC may be admitted into evidence; rather it states that the trial court may consider such a report.  The rule does not change existing law holding that FOC reports concerning custody may be considered by the trial court, but may not be admitted absent agreement of the parties.  See Duperon v Duperon, 175 Mich App 77 (1989).          

 

Green v Green

Michigan Court of Appeals, October 24, 2006

Docket No. 261537 (unpublished)
 

In this decision, the court discusses what constitutes an appearance, in this case by a defendant in pro per.  Under MCR 2.117(A) (1), a party may appear by filing a notice or by physically appearing before the court.  Here, although the defendant did not file an answer to the divorce complaint, he did appear at a motion hearing, a friend of the court meeting and approved a consent order.  The court found these actions sufficient to constitute an appearance by defendant and triggered the notice required by MCR 2.603(B)(1)(a)(i) for entry of a default judgment.

 

Peterson v Peterson

Michigan Court of Appeals, October 24, 2006

Docket No. 260591 (PUBLISHED)
The issue here was whether the trial court erred in deducting taxes from defendant's income when calculating defendant's child support obligation.  The taxes were not actually incurred but theoretically would have been incurred had defendant not been entitled to a depreciation allowance in his tax returns.  The depreciation could not be deducted from income when examining the parties’ income levels relative to child support.  Because the formula does not allow deductions for theoretical taxes, as opposed to taxes actually incurred, and because limiting deductions to taxes actually incurred is not unjust, the court of appeals held the trial court erred in its support calculation.

 

All of these decisions are available through the Michigan Court of Appeals website:

http://courtofappeals.mijud.net/