GOOD MORNING FLINT!
10/25/09
The Livingston Circuit Court , called the trial court, did not abuse its discretion in entering the divorce judgment nunc pro tunc after the defendant-husband died.
Flint Divorce attorney Terry Bankert presents here several issues :
1.Division of marital property in divorce ; Spooner v. Spooner; Berger v. Berger;
2.Whether the trial court correctly nunc pro tunc entered the divorce judgment after the defendant-husband died; Vioglavich v. Vioglavich; Tiedman v. Tiedman; Ensman v. Ensman;
3.The absence of Divorce plaintiff's signature on the divorce judgment; Trupski v. Kanar;
4.Whether the trial court properly distributed divorce defendant's pre-marital property and held the appreciation in value of this property was not subject to distribution; Reeves v. Reeves;
5.Whether plaintiff wife significantly contributed to the home's appreciation in value; Korth v. Korth; MCL 552.401;
6.Whether the overall divorce distribution of assets was fair and equitable
The source here is primarily Michigan Court of Appeals (Unpublished),Case Name: Gentile v. Graybill e-Journal Number: 44039,UNPUBLISHED,October 15, 2009,v No. 284639 Livingston Circuit Court,Judge(s): Per Curiam - Talbot, Wilder, and M.J. Kelly
[This source document has been altered for “social media” presentation . Do not rely on its content without consulting a Divorce Lawyer.-trb]
The primary issue addressed in this divorce case was the distribution of property.
The trial court placed its finding on the record December 14, 2007.and told plaintiff's counsel prepare and give to the court a written judgment within 7 days. The divorce attorney did not submit the proposed judgment until 20 days later on January 3, 2008.
Plaintiff's divorce lawyer had already signed the proposed judgment when it submitted it to the trial court. The husband died the next day January 4, 2008. The husbands divorce lawyer did not know he died and approved the proposed judgment on January 4, 2008.
The trial court also signed and approved then entered the Divorce judgment later on the same day.
Plaintiff later filed a motion to set aside the judgment asserting it was improperly entered.
The court of appeals said Generally, a "trial court is without jurisdiction to render a judgment of divorce after the death of one of the parties." That makes sense but there are always exceptions.
If the trial court (a)reads all the terms of the judgment into the record with indication of its immediate effect or (b)if there is evidence of reliance by the parties on the terms of the divorce a divorce judgment can be entered even after the death of a party. Here condition (a) was met.
The Court of Appeals looked at the totality of the the circumstances and equities , or fairness, in the case, and said the court held the trial court properly entered the divorce judgment.
There was skepticism of the motivation of the plaintiff in the delay of filing the judgment because the record showed plaintiff knew her husband was seriously ill and hospitalized.
Contrary to the trial court's directive, plaintiff's divorce counsel was to submit the written judgment for approval in accordance with the court rule, plaintiff delayed its submission for 20 days. There was no excuse for the delay. If the Plaintiff had done what was ordered the judgment of divorce would have been entered .
The Court of Appeals found that it was impermissible for plaintiff to unreasonably delay in finalizing the divorce judgment relying on the likelihood the husband would die before it was entered in order to obtain a more substantial award of assets based on the status of being a widow rather than a divorcee.
The finding up held the Livingston County Circuit Court. Affirmed in this case it was okay to divorce a dead person in Livingston County Michigan.
THE LAW APPLIED.
“The division of marital properties is committed to the sound discretion of the trial
court.” Spooner v Spooner, 175 Mich App 169, 172; 437 NW2d 346 (1989). The trial court’sfactual findings are reviewed for clear error. Berger v Berger, 277 Mich App 700, 717; 747NW2d 336 (2008). If the trial court’s findings are not clearly erroneous, we then decide whetherthe “dispositional ruling was fair and equitable in light of those facts.” Id.
HOW IS MARITAL PROPERTY DIVIDED?
Factors to beconsidered in the equitable division of a marital estate include:
(1) the duration of the marriage,
(2) the contributions of the parties to the marital
estate,
(3) the age of the parties,
(4) the health of the parties,
(5) the life situation
of the parties,
(6) the necessities and circumstances of the parties,
(7) the parties' earning abilities,
(8) the parties' past relations and conduct, and
(9) general principles of equity. [Id.]
WHAT EVER EACH PARTY OWNS IS PART OF THE MARRIAGE OR MARITAL ESTATE, BUT IS THERE A REASON SHOULD IT BE SEPARATED FOR THE BENEFIT OF ONE SPOUSE.
“[T]he trial court's first consideration when dividing property in divorce proceedings is
the determination of marital and separate assets.” Reeves v Reeves, 226 Mich App 490, 493-494;575 NW2d 1 (1997).
IF AN ASSET IS ORDER TO BE HELD SEPARATE FOR ONE SPOUSE THAT SPOUSE HAS IT AWARED TO THEM WITH EXCEPTIONS
“Generally, . . . each party takes away from the marriage that party's own
separate estate with no invasion by the other party.” Id. at 494. Separate property is subject to distribution only when one of two statutorily created exceptions is met.1 Id.
IF THE OTHER SPOUSE CONTRIBUTES TO IMPROVING THE VALUE OF AN ASSET THAT COULD HAVE BEEN SEPARATED IT COULD BECOME JOINT PROPERTY.
In this instance, plaintiff asserts MCL 552.401, which permits the invasion of separate property if the other spouse "contributed to the acquisition, improvement, or accumulation of the property" is applicable. Id. at 494-495.
THE CONTRIBUTION MUST BE SIGNIFICANT
However, a party’s contribution must be seen as having significantly
assisted in the growth or appreciation of the asset before separate or pre-marital property can be invaded for distribution. Reeves, supra at 495 (emphasis added).
HUSBAND HAD THE PROPERTY BEFORE THE MARRAIGE
The home, adjoining five and ten-acre land parcels, and the nine parcels of land located
in Washtenaw County were Samuel Gentile’s separate property before the parties married.
WIFE DID NOT CONTRIBUTE TO THE PROPERTY
A review of the lower court record, reveals the absence of any evidence that plaintiff significantly contributed to the appreciation in value of the home. Korth v Korth, 256 Mich App 286, 292; 662 NW2d 111 (2003); Reeves, supra at 495.
THE HUSDAND OWNED THE PAID OFF HOUSE BEFORE THE MARRAIGE
The home was completely built and paid for before the parties married. Plaintiff’s only contribution was in the selection of carpeting for the home. There was no evidence that plaintiff invested any of her own money in the property other than her rather vague testimony that she made a cement purchase and “bought stuff” for the home, including all the groceries.
WIFE SAID THE DIVISION OF MARITAL ASSETS WAS NOT FAIR
Plaintiff also contends that the overall distribution of assets was not fair and equitable.
BEFORE DIVISION THE SEPARATE PROPERTY IS TAKEN OUT OF THE MARITAL
ESTATE
Before a determination pertaining to whether a distribution was equitable is made, the separate assets of the parties must be identified and omitted and only the value of the marital assets is to be considered. Reeves, supra.
THE HOME WAS FOUND TO BE SEPARATE FOR THE HUSBAND BUT THE WIFE TOOK $100,000
Notably, in the months preceding plaintiff’s leaving the marital home she withdrew approximately $103,200 from a joint account, to which she did not contribute or deposit any funds.
THE WIFE IS 63 THE HUSBAND IS 78
NUNC PRO TUNC , DID THE TRIAL COURT DO IT RIGHT
We review the trial court's decision to enter an order nunc pro tunc for an abuse of
discretion.
DEAD PEOPLE DO NOT USUALLY GET DIVORCED.
Vioglavich v Vioglavich, 113 Mich App 376, 386-387; 317 NW2d 633 (1982).
Generally, “[a] trial court is without jurisdiction to render a judgment of divorce after the death of one of the parties.” Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d 632 (1977).
THERE ARE EXCEPTIONS WHERE DEAD PEOPLE CAN GET DIVORCED
However, exceptions to this rule exist based on whether the trial court read all the terms of the judgment into the record with indication of its immediate effect or if there is evidence of reliance by the parties on the terms of the divorce. Id. at 575 n 1, 577.
ITS OKAY FOR THE LIVINGSTON CIRCUIT COURT TO DIVORCE THIS DEAD PERSON.
Based on the circumstances and equities in this case, we find that the trial court did not
abuse its discretion when it entered the judgment of divorce nunc pro tunc. Vioglavich, supra at 386-387.
THE WIFE KNEW THE HUSBAND WAS SICK AND SHE WOULKD GET A BETTER DEAL IF HE DIED BEFORE THE DIVORCE WAS ENTERED
The record demonstrates that plaintiff was aware that Samuel was seriously ill and
hospitalized. Contrary to the trial court’s directive that plaintiff’s counsel was to submit the written judgment for approval in accordance with MCR 2.602(B)(3), plaintiff delayed its submission for 20 days.
Posted here by
Terry Bankert
http://www.flintfamilylaw.com/
Sunday, October 25, 2009
Livingston County, they divorce dead people!
LOCAL DEFENSE ATTORNEY'S CLEAN THEIR CLOCKS
GOOD MORNING FLINT!
By Terry R. Bankert Flint Divorce Lawyer, who posts here for the following purpose.
“Social Media Issue Advocacy civilly with diverse sociopolitical communities of justice seekers.”
BLOG TODAY, 10/24/09 :
The headline should read “LOCAL DEFENSE ATTORNEY’S CLEANS THEIR CLOCK!” Why did this take so long? When will the City get is money? Why did the Prosecutor agree to no jail time? Why is one defendant ordered to pay about $200,000 and the other over $1,000,000. Why did the City give them money in the first place? Has the policy that allowed this been changed?
http://www.mlive.com/news/flint/index.ssf/2009/10/joseph_giacalone_and_daniel_ro.html
FLINT MADE OR DELIVERED PRODUCTS AND SERVCES-PAID ADVERTISING
*LEGAL: Law Office of Terry R.Bankert , Legal Services,1000 Beach St Flint Mi 48502, 810-235-1979, www.attorneybankert.com
*Your Flint made or delivered product or service could be here. 1 per category.
By
Terry R. Bankert , Flint MI Native with a downtown Flint Family Law, Divorce Practice.
www.flintfamilylaw.com -Legal, Family Law, Custody, support and parenting time.
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