Thursday, December 30, 2010
Bay Mills Tribe possible Casino site
http://www.mlive.com/news/flint/index.ssf/2010/12/land_records_show_bay_mills_in.html
CASINO HEADED TO FLINT TOWNSHIP
A big development could be headed for the shadow of the Genesee Valley shopping center and some are speculating it could be a casino.[2]
BAY MILLS TRIBE OPENING CASINOS WHEREVER THEY WANT
Speculation about a casino here could be fueled by recent reports regarding the Upper Peninsula’s Bay Mills Indian Community, which recently opened a casino in Vanderbilt near Gaylord despite questions about the legality of the move.[2]
CASINO SLIPPED IN WITHOUT GOVERNMENT APPROVAL
The Port Huron Times Herald reported the casino opened without the usually required state and federal approvals, and experts told the paper that the tribe could be using Vanderbilt as a test before opening a casino in Port Huron, where it recently purchased land, and elsewhere.[2]
BAY MILLS NOT AVAILABLE FOR COMMENT
The Flint Journal could not reach a representative of the Bay Mills Indian Community for comment Friday.[2]
TRIBE NOW OWN PRIME LAND NEAR GENESEE VALLEY
The Bay Mills Indian Community now owns 28 acres near the Genesee Valley shopping center, putting it in a position to open a casino here if it can fend off legal challenges.
A warranty deed filed with the Genesee County Register of Deeds Office Dec. 17 shows the vacant land has been purchased by the Bay Mills tribe from Joann M. Kemp of Macomb County but neither that paperwork nor a quit claim deed filed earlier reveal a purchase price. [1]
BUZZ
Buzz has been building since the October sale of a 28-acre parcel of real estate in the area of Dutcher and Lennon roads, long promoted as some of the county's best undeveloped commercial land.[2]
DID PRESTON GET IN TROUBLE FOR LEAKING THE CASINO INFORMATION?
Jerry Preston, president of the Flint Area Convention & Visitors Bureau, said he has heard the casino speculation.[2]
“We understand there's been a land purchase by what could be an Indian tribe,” Preston said Friday.[2]
DETROIT AREA REAL ESTATE BROKER
The same Detroit-area broker who helped put the sale together still has options to purchase additional, adjacent parcels that could double the size of a potential development, according to the real estate company that's representing the sellers.[2]
LAND SOLD LINKED TO FLINT TOWNSHIP TRUSTEE
The Flint Journal earlier covered the purchase of Kempts property by Norel Enterprises Inc., a corporation with owners that include township trustee George Menoutes. [1]
WHAT DID THEY KN OW AND WHEN DID THEY KNOW IT.
At that time, Bay Mills involvement in the land deal was the subject of rumor and speculation. Now that the tribe has taken ownership, the only question is what Bay Mills has in mind for the prime commercial property, located near the northeast corner of Lennon and Dutcher roads. [1]
KEMP NOT TALKING
The Journal has been unable to reach Kemp or a Bay Mills representative for comment on the tribe's interest in the area, and township Supervisor Karyn Miller said she isn't sure whether she would support development of a casino here or fight against it.
Long-time resident Bonnie Johnson, who lives on Tandy Drive, just east of the Bay Mills property, said she's not excited about the prospect of a gambling operation in her back yard. [1]
THE PUBLIC RECORD
The 28 acres in the Lennon and Dutcher roads area were sold to Joanne Kemp of Harrison Twp in Macomb County, according to a deed on file at the Genesee County Register of Deeds Office. The Flint Journal could not reach Kemp for comment Friday and others involved in the sale say they aren't sure what her intentions may be.[2]
JUST WHAT IS THE PROPERTY WORTH
The deed did not list the price of the sale, but township records say the property has an assessed value of more than $525,000.[2]
A CASINO IS NOTHING BUT TROUBLE
"It would be nothing but trouble. We would be against it," said Johnson, who has lived here about 40 years. "People go there with a lot of money and come out with none."
Bay Mills is locked in a high-stakes game of chicken with state and federal officials as well as other tribes since it opened a small casino in Vanderbilt, a small village in northern Michigan, that state officials say violates state and federal law. [1]
A letter sent to the tribe from the state attorney general's office says Bay Mills considers that Vanderbilt property tribal land because its purchase was connected to the Michigan Indian Land Claims Settlement Act. [1]
The attorney general's office says the casino there is not on "Indian lands," as required for a legal gambling operation. The letter says Bay Mills has argued the casino can operate without review or approval from the state or federal officials in part because the tribe already has an approved compact with the state. Bay Mills also operates two casinos in the Upper Peninsula, where it is based. [1]
Bay Mills opened the Vanderbilt casino in November, and the state and the Little Traverse Bands of Odawa Indians filed lawsuits in U.S. District Court last week, asking a federal judge to shut down the casino. [1][
Like the newly purchased land in Flint Township and land it purchased recently in Port Huron, Bay Mills bought the Vanderbilt land within the last six months, fueling speculation that it is planning casinos in those two areas as well. [1]
James Nye, a spokesman for six Indian tribes that claim the Vanderbilt casino is illegal, said the small gambling operation near Gaylord is "a test case to open additional areas" like Flint Township to a Bay Mills casino. [1]
"If it's legal in Vanderbilt, it's legal in Flint or Port Huron," Nye said. "Then Bay Mills is the only government entity that gets to decide when and where they open a casino.
"It's completely at Bay Mills discretion." [1]
Winfield Cooper, president of Cooper Commercial in Flint Township, said the broker …Vigliotti … representing Kemp never volunteered what the ultimate plans are for the land.[2]
Cooper said he's never talked to Kemp, who only emerged as the buyer days before the sale closed. He said he knows there will be interest in what's happening here — options pending on multiple parcels of land in an otherwise slow real estate market.
But Cooper said the buyer's representative “did not talk to us about what the use would be.”[2]
“We're just excited to see interest in development in Flint Township,” he said.[2]
Genesee County Commissioner Ted Henry, D-Clayton Twp., said he would support the construction of a casino to provide an economic boost the area -- provided the operation is legal and is supported by the township. [1]
Miller said she's not sure if she would use her position to fight or support a casino.
"I don't have any comment ... whether I'm for it," Miller said. "When they feel it is the right time, I'm sure they will talk to (me). At this point, I don't know." [1]
Miller said she and other township officials have discussed forming a special committee, including members of the township planning commission, to discuss the land purchase with Bay Mills officials. [1]
Menoutes said there are more questions than answers about the property but spoke in positive terms about development of a casino here. [1]
"It's too bad that it's not going to (downtown Flint)," Menoutes said. "That would have helped the city." [1]
Menoutes said he sees the positive impact of the Indian casino in Mount Pleasant when he visits there. [1]
"All I see is people walking up and down the street," Menoutes said. [1]
Police, fire and the township's tax base could all benefit if a casino becomes reality, Menoutes said. [1]
Johnson, 75, said she won't leave her home no matter what happens with the vacant land Bay Mills now owns. [1]
"We're here for the rest of our lives," she said. [1]
George Menoutes, a township trustee and partner in Norel Enterprises Inc. — the corporation that sold the property to Kemp — identified the deal broker as Ralph Vigliotti Real Estate but would not comment on what the land may be used for.[2]
[1]
[2]http://www.mlive.com/news/flint/index.ssf/2010/12/sss.html
\ Sphere: Related Content
Tuesday, December 28, 2010
Classic rope.
WE NEED OPEN DEBATE ABOUT THE LEGALIZATION OF MARIHUANA
Failure to engage in the debate hinders our hunt for a statute’s intended purpose and generally stifles the formation of sound legal principles. If we all gently withdrew our voices from the arena of competing ideas, then mistakes would go unchallenged, and the process of correction could suffer nearly insurmountable setbacks.[8]
On November 4, 2008, the Michigan Medical Marihuana Act (MMMA), MCL
333.26421 et seq., was passed by referendum and went into effect soon thereafter. It is without question that this act has no effect on federal prohibitions of the possession or consumption of marijuana.1[8]
DO YOUR ELECTED OFFICALS HAVE THE COURAGE TO OPENLY DEBATE LEGALIZATION OF POT?
I have no doubt that in the minds of some voters in this state, legalizing marijuana would be good public policy. Others who approved this act were under the impression that the act’s specific purpose was limited to permitting the use of medical marijuana by registered patients with debilitating medical conditions. Still others voted against this change in the law. Whether the decriminalization of medical marijuana is a good or bad idea for this state is a question of public policy for our state legislators, the executive branch, and the citizenry to ponder. It is not for the courts to set public policy.[8]
SHOULD CANNABIS BE LEGALIZED?
…U.S. data … statistics were derived in a setting that spends an estimated $10 billion each year enforcing marijuana laws. Research funded by the U.S. government also clearly demonstrates that, even as federal funding for anti-drug efforts increased by more than 600 per cent over the last several decades, marijuana's potency has nevertheless increased by 145 per cent since 1990, and its price has declined 58 per cent. For many of the above reasons, as well as the potential to generate a massive amount of tax revenue, a 2004 Fraser Institute report called for the outright legalization of cannabis, ….[5]
(T)he MMMA does not create any sort of affirmative right under state law to use or
possess marijuana. That drug remains a Schedule 1 substance under the Public Health Code, MCL 333.7212(1)(c), meaning that “the substance has a high potential for abuse and has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision,” MCL 333.7211. The MMMA does not repeal any drug laws contained in the Public Health Code, and all persons under this state’s jurisdiction remain subject to them. Accordingly, mere possession of marijuana remains a misdemeanor offense, MCL 333.7403(2)(d), and the manufacture of marijuana remains a felony, MCL 333.7401(2)(d).[8]
NOW A WORD FROM PAT ROBERTSON
"I'm not exactly for the use of drugs, don't get me wrong, but I just believe that criminalizing marijuana, criminalizing the possession of a few ounces of pot, that kinda thing it's just, it's costing us a fortune and it's ruining young people. Young people go into prisons, they go in as youths and come out as hardened criminals. That's not a good thing."[6]
Michigan's two-year-old law allowing the use of marijuana for medical purposes is leaving communities, courts, patients and police locked in disputes over what is legal and what isn't.[3]
"We're locking up people that have taken a couple puffs of marijuana and next thing you know, they've got 10 years with mandatory sentences. These judges just say, they throw up their hands and say 'nothing we can do with these mandatory sentences.' We've got to take a look at what we're considering crimes and that's one of 'em."[6]
Advocates of medical marijuana say nothing in the law prohibits dispensaries and collective growing facilities, and that communities are ignoring the will of Michigan voters by cracking down on those businesses. Advocates of the law say it's broad by design to protect a wide range of activities.[3]
Michigan Court of Appeals Judge Peter O'Connell wrote in a September opinion that the law is susceptible to multiple interpretations and that reading it "carelessly or out of context could result in jail or prison time for many of our citizens." He urged state officials to clear up contradictions and vague areas in the voter-approved law.[3]
The problem, however, is that the MMMA is inartfully drafted and, unfortunately, has
created much confusion regarding the circumstances under which an individual may use
marijuana without fear of prosecution. Some sections of the MMMA are in conflict with others,and many provisions in the MMMA are in conflict with other statutes, especially the Public Health Code. Further, individuals who do not have a serious medical condition are attempting to use the MMMA to flout the clear prohibitions of the Public Health Code and engage in recreational use of marijuana. Law enforcement officers, prosecutors, and trial court judges attempting to enforce both the MMMA and the Public Health Code are hampered by confusing and seemingly contradictory language, while healthy recreational marijuana users incorrectly view the MMMA as a de facto legalization of the drug, seemingly unconcerned that marijuana use remains illegal under both state and federal law.[8]
MARIJUANNA USE VIOLATED FEDERAL LAW
The Controlled Substances Act, 21 USC 801 et seq., classifies marijuana as a
Schedule 1 substance, 21 USC 812(c), meaning that Congress recognizes no acceptable medical uses for it, and its possession is generally prohibited. See Gonzales v Raich, 545 US 1, 27; 125 S Ct 2195; 162 L Ed 2d 1 (2005); United States v Oakland Cannabis Buyers’ Co-op, 532 US 483, 490; 121 S Ct 1711; 149 L Ed 2d 722 (2001). As a federal court in Michigan recently recognized, “It is indisputable that state medical-marijuana laws do not, and cannot, supercede federal laws that criminalize the possession of marijuana.” United States v Hicks, ___ F Supp 2d ___ (No. 07-20176, ED Mich, 2010); 2010 WL 2724286 at *3, citing Gonzales, 545 US at 29 (“The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.”); United States v $186,416.00 in US Currency, 590 F3d
942, 945 (CA 9, 2010) (“The federal government has not recognized a legitimate medical use for marijuana, however, and there is no exception for medical marijuana distribution or possession under the federal Controlled Substances Act”); United States v Scarmazzo, 554 F Supp 2d 1102, 1109 (ED Cal, 2008) (“Federal law prohibiting the sale of marijuana is valid, despite any state law suggesting medical necessity for marijuana”); United States v Landa, 281 F Supp 2d 1139, 1145 (ND Cal, 2003) (“our Congress has flatly outlawed marijuana in this country, nationwide, including for medicinal purposes.”). Accordingly, the MMMA has no effect on federal law, and the possession of marijuana remains illegal under federal law, even if it is possessed for medicinal purposes in accordance with state law. Hicks, 2010 WL 2724286 at *4, citing Gonzales, 545 US at 27 (“The CSA designates marijuana as contraband for any purpose”).[8]
----
O’Connell commented in the appeal of a case namedPeople v. Redden
Several Issues were discussed in this case:
*Whether a "registry identification card" is required for a § 8 affirmative defense under the Michigan Medical Marihuana Act (MMMA)(MCL 333.26421 et seq.);
*MCL 333.26428; People v. Stone Transp., Inc.; People v. Williams; Welch Foods, Inc. v. Attorney Gen.;
*Whether the trial court properly reversed the bindover decision; People v. Henderson; People v. Glass (After Remand); People v. Waltonen; People v. King; Whether a "bona fide physician-patient relationship" existed; MCL 333.26428(a)(1); People v. Peals;
*Whether the amount of marijuana defendants possessed was "reasonable" under the statute; MCL 333.26428(a)(2);
*Whether the marijuana was "being used for medical purposes"; MCL 333.26428(a)(3); *Whether defendants suffered from "serious or debilitating medical conditions";
*MCL 333.26427(b)(5)
This is a precent opinion of -Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden , e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
THE COURTS CONCLUSION
The court held that the district court did not err by permitting defendants to raise the affirmative defense even though neither satisfied the registry-identification-card requirement of § 4 and the trial court properly reversed the district court's dismissal of a single count of manufacturing 20 or more but less than 200 marijuana plants for each defendant and reinstated the charges where there was evidence that the defense was not complete, and there were colorable issues for the trier of fact.
HOW DID THIS CASE START
This case arose from the execution of a search warrant at defendants' residence,
DEFENDANTS HAD A LOT OF DOPE
which resulted in the discovery of approximately 1 1/2 ounces of marijuana and 21 marijuana plants.
BUT WE HAVE A MEDICAL CARD?
Defendants each turned over documents regarding their use of marijuana for medical purposes.
WHAT IS THE MMMA?
The MMMA went into effect on December 4, 2008, but, according to officer W, the state of Michigan did not begin issuing registry identification cards until April 4, 2009. The Michigan Department of Community Health issued medical marijuana registry identification cards to each defendant on April 20, 2009, but this was after the search in this case took place.
DR. SAID THESE SICK PEOPLE NEED HELP, NAUSEA
In support of the defense, they presented testimony from Dr. E, who signed the medical-marijuana authorization. Regarding defendant-R, E concluded that he had a debilitating condition that caused pain, satisfying the MMMA. Regarding defendant-C, E concluded that she suffered from nausea. According to E, each defendant was using other narcotics for their conditions, and he opined that access to marijuana would give them the opportunity to wean themselves off of those narcotics.
TWO PREVIOUS CONVICTIONS TO DISTRIBUTE
The parties stipulated that defendant-R had two previous convictions for possession with intent to distribute marijuana. As part of the preliminary examination, defendants asserted the affirmative defense contained in § 8 of the MMMA. The plain language of § 8 does not place any restriction on defendants' raising of the affirmative defense.
DEFENDANT DID NOT HAVE A CARD
Nevertheless, the prosecution argued that the affirmative defense under § 8 is unavailable to defendants because they did not possess valid registry identification cards at the time of the offense, in violation of § 4. Because of the differing levels of protection in §§ 4 and 8, the plain language of the statute establishes that § 8 is applicable for a patient who does not satisfy § 4.
WAS THERE REAlLY A DOCTOR PATIENT RELATIONSHIP HERE
As to the trial court reversing the district court's dismissal of charges and reinstating them, the court found that there were colorable issues concerning whether a bona fide physician-patient relationship existed,
WAS THE AMOUNT OF DOPE REASONABLE FOR A SICK PERSON
whether the amount of marijuana defendants possessed was reasonable under the statute,
WAS THE DOPE BEING USED FOR MEDICAL PURPOSES
whether the marijuana in question was being used for medical purposes, and whether defendants suffered from serious or debilitating medical conditions.
COURT OF APPEALS UPHELD THE LOWER COURT
Affirmed. [7]
-----
FEDERALLIES WANT TO NIP MICHIGANS BUD.
Federal agents want Michigan to turn over medical marijuana records as part of an investigation in the Lansing area, a sign that voter approval won't stop federal authorities from enforcing their drug laws.[1]
SHOULD THE FEDERAL LAW BE CHANGED?
..there is clear consensus in the medical and scientific community that cannabis is substantially less harmful than alcohol and tobacco. [5]
MICHIGAN VOTERS SAID WE WANT MARIJUANNA
Michigan voters agreed in 2008 to legalize the use of marijuana in treating some health problems.[1]
FED’S SAY WE DON’T CARE MICHIGAN
But "the cultivation, possession and distribution of marijuana remains illegal under federal law," Assistant U.S. Attorney John Bruha said in a court filing last week.[1]
FEDS WE WANT THE RECORDS MICHIGAN COLLECTED
The U.S. attorney's office has asked a judge to order the Department of Community Health to comply with a subpoena for records of seven people with medical marijuana or marijuana caregiver cards.[1]
MICHIGAN PROMISED THE RECORDS WOULD NOT BE GIVEN OUT
The state has been resisting turning over the information because of a privacy provision in Michigan law, Bruha said. No names or identifying information about the seven are included in court documents, nor are details about the Drug Enforcement Administration's investigation.[1]
FEDS INVADING RIGHTS OF 14 STATES
Michigan isn't alone in trying to sort out hazy medical marijuana laws. Fourteen other states have similar statutes — prompting raids and debate over local regulations in California, disputes over which doctors can recommend pot in Colorado and fights over proposed regulations in New Jersey.[4]
GREEN CARD ENFORCEMENT
Some police agencies want a better system to verify the authenticity of authorization cards. Physicians must certify patients would benefit from the pain-reducing aspects of marijuana, but it's left to the patients to register with the state and to self-regulate the amount and quality of the drug they take.[4]
"There is absolutely no connection to medicine and what's going on with medical marijuana right now," said Oakland County Sheriff Mike Bouchard. "You don't have a required patient-doctor relationship. You don't go to a state-licensed, inspected and regulated facility like a pharmacy. ... It's creating already a lot of problems and a lot of misconceptions."[4]
DEA WE ARE TARGETING PEOPLE THAT ARE AMBIGUOUS.
DEA spokesman Rich Isaacson in Detroit wouldn't comment about the case Monday but said agents generally are "not targeting people that are unambiguously following the state medical marijuana law."[1]
WE ARE IN NO HURRY
"The DEA targets large scale drug trafficking organizations and does not expend its resources on individuals possessing 'user amount' quantities of illegal drugs," he said.
The federal government apparently hasn't been in a rush to get the information: The subpoena was given to the Department of Community Health in June.[1]
45,000 POTENTIAL PERPS GAVE THE GOV’T THE NAME OF THEIR DRUG OF CHOICE ,THEIR NAME ADDRESS AND PHONE NUMBER. ALL THAT’S LEFT IS AN ARREST APPOINTMENT.
More than 45,000 people in Michigan are registered to use marijuana to ease the symptoms of cancer and other health problems. They can have up to 2 1/2 ounces of ready-to-use pot and up to 12 plants kept in an enclosed, locked facility. They could also choose to have a registered caregiver grow the drug for them.[1]
Michigan's more than 45,000 licensed medical marijuana patients can possess up to 2½ ounces of usable marijuana and have up to 12 plants kept in an enclosed, locked facility — or have a registered caregiver grow the drug for them.[4]
A MAZE
Law enforcement officials have panned the law as poorly written, and an appeals court judge has called it a "maze." [1]
Many patients who have the state's OK to use marijuana to ease their pain from conditions ranging from cancer to Crohn's disease have been arrested and others have been fired because of different interpretations of the law approved by Michigan voters in late 2008. Courts face a rash of medical marijuana cases, with the law raising so many questions one state appeals court judge described reading it as a "maze."[3]
CITIZENS TURN TO HIGHER LEARNING
A class on legal issues is a staple at Med Grow Cannabis College in Southfield, one of the few medical marijuana trade schools in the nation. Nick Tennant, who last year opened up the trade school in suburban Detroit, said the goal of the class is to provide students some clarity about a law that has gray areas.[3]
"A lot of people want definitive answers," Tennant, 25, said. "It's just hard, because sometimes the attorneys can't really give a definitive answer. They can give almost a 'best practices, here's how you stay out of trouble, don't raise your risk tolerance in this gray area' type of thing."[3]
The school also provides students with instruction on the medical and horticultural aspects of growing pot for medicinal use.[3]
"We don't want the people and the public to be afraid of us or to think we're drug dealers, because that's really a popular misconception as well. We're here to help," said Travis Williams, a 38-year-old Detroiter who took classes at the school and now provides marijuana he grows himself to patients.[3]
HERE IS A VENDOR WITH A Mission Statement:
We are here to help qualifying patients obtain their medical marijuana patient certification through the state of Michigan. Our doctors (M.D.) are dedicated to assisting individuals on their process toward becoming a medical marijuana patient. Our licensed Michigan physicians are in full compliance with the Michigan Medical Marijuana Certification guidelines.[4]
Upon the physician’s review and approval, qualified patients will receive written recommendations and a signed State Certification Form that will allow them to apply for the Michigan Medical Marijuana Identification Card. [4]
ACLU SUING CITIES THAT ARE BLOCKING THE DOPERS
The American Civil Liberties Union is suing cities over anti-marijuana policies.[1]
Local governments are jumping in and passing their own ordinances, mostly trying to limit, ban or regulate a wave of businesses popping up to grow and sell the drug.[3]
The American Civil Liberties Union has sued the southeast Michigan cities of Livonia, Birmingham and Bloomfield Hills and joined a lawsuit against the west Michigan city of Wyoming over policies it says effectively ban the use of medical marijuana.
Local governments counter that they are trying to make sure illegal drug dealing and other crimes don't take place in the absence of a clear state law.[3]
CIVIL UNREST
Many of the clashes are between medical marijuana advocates who say they're acting within the law and police who say they aren't. Adding to the tension is federal law that continues to ban the use and possession of marijuana. Although it won't be a top priority for lawmakers in a state swamped by economic and state government budget problems, Michigan's next Legislature likely will devote some time to clarifying the law[4]
DRUG ENFORCEMENT CAUSES VIOLENCE
This violent reality has emerged as an unintended consequence of a more than a half-century long experiment aimed at reducing illegal drug supply through aggressive law enforcement. Remarkably, despite the U.S. taxpayer spending an estimated $2.5 trillion since America's "War on Drugs" was launched by former president Richard Nixon, drugs remain more available today than at any time in our history, while drug market violence has continued to worsen. A recent international example is the upsurge in drug-related violence in Mexico, which has claimed more than 30,000 lives after Mexican President Felipe Calderon launched a crackdown on the cartels in 2006. [5]
The MMMA does not codify a right to use marijuana; instead, it merely provides a procedure through which seriously ill individuals using marijuana for its palliative effects can be identified and protected from prosecution under state law. Although these individuals are still violating the Public Health Code by using marijuana, the MMMA sets forth particular circumstances under which they will not be arrested or otherwise prosecuted for their lawbreaking. In so doing, the MMMA reflects the practical determination of the people of Michigan that, while marijuana is classified as a harmful substance and its use and manufacture should generally be prohibited, law
enforcement resources should not be used to arrest and prosecute those with serious medical conditions who use marijuana for its palliative effects.2[8]
mainstream view that it's nuts to keep busting pot users.[6]
Again, all individuals who possess, use, or manufacture marijuana in this state, including
qualifying patients who have been issued a valid registry identification card and their primary caregivers, are violating the federal Controlled Substances Act and are still subject to arrest and punishment for doing so.[8]
For those who instituted the process of placing the proposal on the
ballot, the MMMA was both an avenue for allowing society to explore the medical uses of marijuana, but also a first step in legalizing marijuana in Michigan. For some citizens who voted for the bill out of empathy for the terminally ill or those suffering from debilitating conditions, it was a vote for a medical process that would help those in need. Unfortunately for all concerned with the implementation of the medical mission, including compassionate-care groups, marijuana growers, marijuana users, marijuana dispensers, police, prosecutors, municipalities, townships, etc., the act has resulted in much confusion. And it has suggested itself to many purely recreational marijuana consumers as a vehicle to aid in their continuing illicit indulgence in that
vice.[8]
Sources-
[1]
http://www.mlive.com/news/index.ssf/2010/12/feds_want_michigan_records_in.html
[2]
Comments in article at;
http://www.mlive.com/news/index.ssf/2010/12/feds_want_michigan_records_in.html
[TRB]
ALL CAP LINES or followed by this cite are from Terry Bankert. http://attorneybankert.com/.
[3]
http://www.bloomberg.com/news/2010-12-22/michigan-s-medical-marijuana-law-shrouded-in-haze.html
[4]
http://www.greenmedicalclinic.com/
[5]
http://www.vancouversun.com/news/Prohibition+marijuana+responsible+much+gang+violence+both+here+elsewhere/4031861/story.html
[6]
http://www.newsworks.org/index.php/homepage-feature/item/9967-pot-and-the-preacher
[7]
Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden
e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
FOR PUBLICATION, September 14, 2010,9:20 a.m.
v No. 295809,Oakland Circuit Court
LC No. 2009-009020-AR
[8] Concurring opinion of juistive O’Connell
Court: Michigan Court of Appeals (Published)
Case Name: People v. Redden
e-Journal Number: 46768
Judge(s): Meter and Owens; Concurrence – O’Connell
FOR PUBLICATION, September 14, 2010,9:20 a.m.
v No. 295809,Oakland Circuit Court
LC No. 2009-009020-AR Sphere: Related Content
Wednesday, December 22, 2010
LAPEER FATHER DENIED CHANGE OF CUSTODY
Not enough evidence to support change was presented.
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: [] v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: []v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010 Sphere: Related Content
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: [] v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: []v. []
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010 Sphere: Related Content
LAPEER FATHER DENIED CHANGE OF CUSTODY
Lapeer Child Custody decision upheld.
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010) Sphere: Related Content
A Lapeer Michigan fathers defeat in his attempt to change custody is presented here by Flint Divorce Lawyer Terry Bankert.
The Lapeer Divorce Court decision on Lapeer Child custody is reviewed by Flint Child Custody Lawyer Terry Bankert with several sub Issues:
(1)Custody;
(2)Motion to change custody;
(3)The statutory "best interest" factors (MCL 722.23);
(4)The trial court's findings on factors (g), (j), and (l);
(5)MCL 722.28;
(6) Mis cases
Baker v. Baker;
Vodvarka v. Grasmeyer;
Mogle v. Scriver;
Phillips v. Jordan;
McCain v. McCain;
(7)The trial court's obligation to determine the credibility and weight of the evidence; Gorelick v. Department of State Hwys.;
(8)Whether the trial court's order as to the plaintiff-father's minor son from a prior relationship was permissible;
(9)The trial court's authority to add conditions to the parenting time order as needed; MCL 722.27a(8)
UNPUBLISHED COURT OF APPEALS CASE
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
YOU SHOULD KNOW
Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/ .
MICHIGAN COURT OF APPEALS SAYS LAPEER COURT GOT IT RIGHT
Concluding that the trial court's decision on best interest factors (g), (j), and (l) was not against the great weight of the evidence, the court held that the trial court did not abuse its discretion in denying the plaintiff-father's motion to change custody.
THE LOCAL JUDGE DETERMINES IF THE TESTIMONY IS WORTH LISTENING TO.
The LAPEER DIVORCE trial court was obligated to determine the credibility and weight of the evidence, and it complied with that requirement.
LOOK FIRST TO THE HISTORY
The LAPEER CHILD CUSTODY trial court's opinion addressed the parties' history and the evidence they presented.
THE CHILDREN HAVE BEEN EMOTIONALLY HARMED BECAUSE THESE PARENTS DO NOT GET ALONG.
The trial court determined that neither party exhibited mental or physical health issues, both parties were unwilling to facilitate a close relationship between the children and the other parent, and the children had been subjected to emotional or psychological harm from both parents.
THE LAPEER CUSTODY DECISION WAS BASED UPON THE EVIDENCE.
"Based on the evidence, and deferring to the trial court's determination of credibility, the trial court's decision on these factors was not against the great weight of the evidence."
THE LAPEER JUDGE DID A GOOD JOB
The court concluded that the trial court's review of the evidence and its opinion were thorough and thoughtful. "The trial court's conclusion was supported by the evidence and was within the range of principled outcomes."
DAD SAYS “YOU CANNOT GIVE ORDERS CONCERNING MY OTHER SON.” COURT OF APPEALS SAYS YES WE CAN !
The court also rejected plaintiff's argument that the trial court's order as to plaintiff's minor son from a prior relationship was impermissible because the trial court did not have jurisdiction over the boy and its decision was against the great weight of the evidence.
DID YOU KNOW A JUDGE CAN ADD CONDITIONS TO A PARENTING TIME ORDER
The court noted that the trial court was authorized to add conditions to the parenting time order, as needed.
A PARENT CAN BE ORDERED TO KEEP OTHER PEOPLE AWAY FROM THE CHILDREN OF A CASE.
The court held that the trial court did not exercise jurisdiction over plaintiff's son by stating when or where the boy could spend time with plaintiff. "Instead, it exercised jurisdiction over the custody and parenting time arrangement with the parties as it related to their daughters, taking into consideration the relationship between plaintiff and the girls. This was a proper exercise of jurisdiction."
MOM WINS AND KEEPS CUSTODY
The court affirmed the trial court's order providing that the parties' minor children remain in the defendant-mother's physical custody with the parties continuing to share joint legal custody.
MICHIGAN COURT OF APPEALS SAYS THE LAPEER COURT MADE THE CORRECT DECISION
In this child LAPEER custody action, plaintiff- FATHER appeals by right from an order that denied his
motion to change custody and ordered that the parties’ minor children remain in the primary
physical custody of defendant -MOTHER with the parties continuing to share joint legal custody. We
affirm.
FATHER DOES NOT LIKE THE LAPEER DECISION AND TAKES THE CASE UP
On appeal, plaintiff -FATHER argues that the trial court erred in its decision because the great
weight of the evidence revealed that plaintiff had an advantage over defendant with regard to
three of the statutory best interest factors. We (MICHIGAN COURT OF APPEALS) disagree.
REVERSAL OF A LOWER COURT DECISION IS A DIFFICULT OBJECTIVE
This Court must affirm the trial court’s child custody decision “unless the trial judge
made findings of fact against the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Baker v Baker, 411
Mich 567, 573; 309 NW2d 532 (1981).
DID THE LAPEER CHILD CUSTODY COURT COMMIT AN ABUSE?
We review the trial court’s discretionary rulings for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003) (citation omitted). A court abuses its discretion when its decision is outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).
WHAT ARE THE BEST INTEREST FACTORS AND WHY DO WE CARE?
The best interest factors are set forth in MCL 722.23.
WEIGHT
Plaintiff-FATHER challenges the weight of the evidence regarding:
(g) the mental and physical health of the parties;
(j) the willingness of
the parties to work together and foster the relationship between the child and the other parent;
and
(l) any other factor considered by the court to be relevant.1
LAPEER HAD A FIVE DAY CUSTODY HEARING AND ISSUES A DETAILED OPINION
Over a five-day custody hearing, the court considered ample evidence involving the best interest factors and provided a detailed opinion recounting the evidence and outlining its findings pertaining to each best interest factor.
CREDIBILITY IS IN THE EYE OF THE LOWER COURT
In reviewing the trial court’s findings, this Court should defer to the fact-finder’s
determination of credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
WAS THERE A CLEAR PREPONDERANCE OPPOSITE THE LOWER COURT CONCLUSION?
Under the great weight of the evidence standard, a trial court’s findings regarding each custody
factor “should be affirmed unless the evidence clearly preponderates in the opposite direction.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).
YOUR LOCAL JUDGE CAN DETERMINE THE IMPORTANCE OF THE BEST INTEREST FACTORS
Notably, the trial court was not required to weigh the statutory best interest factors equally. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
LOCAL COURT DECIDES WHAT IS IMPORTANT
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it complied with that requirement. Gorelick v Dep’t of State Hwys, 127
Mich App 324, 333; 339 NW2d 635 (1983).
HISTORY OF THE PARTIES
The court’s opinion addressed the parties’ history
and the evidence presented by both parties. The court concluded that neither party exhibited
mental or physical health issues, found that both parties were unwilling to facilitate a close
relationship between the child and the other parent, and found that the minor children had been
subjected to psychological or emotional harm from both parents.
LAPEER CHILD CUSTODY DECISION NOT AGAINST THE GREAT WEIGHT OF THE EVIDENCE
Based on the evidence, and deferring to the trial court’s determination of credibility, the
trial court’s decision on these factors was not against the great weight of the evidence. MCL
722.28; Mogle, 241 Mich App at 201. The court’s review of the evidence was thorough and
thoughtful, as was its opinion. The trial court’s conclusion was supported by the evidence and
was within the range of principled outcomes. See Maldonado, 476 Mich at 388.
FATHER SAYS LEAVE MY SON OF ANOTHER WOMAN OUT OF THIS.
Plaintiff next argues on appeal that the court’s order regarding plaintiff’s other minor son
from a previous relationship was impermissible because the court did not have jurisdiction over
plaintiff’s son, and its decision was against the great weight of the evidence. We-MICHIGAN COURT OF APPEALS disagree.
PERMISSABLE CONDITIONS OF PARENTING TIME
In its order, the court provided conditions for the parties to follow in order to prevent
further abuse and for the best interests of the children. In part, the court ordered that plaintiff’s
son not be present while plaintiff was parenting his daughters unless they were in public or
during non-overnight family functions at the home of friends or relatives. This condition was
similar to the requirement stated in the original parenting time order dated August 29, 2006.
SUPERVISION NEEDED
Clearly the parties and the court had previously recognized the benefit of restricting the
unsupervised interaction of the children.
DAD SAYS THIS DISRUPTS MY VACATIONS
During plaintiff’s testimony, he acknowledged that he
planned to continue the restrictions to prevent further allegations, but noted that it was not an
ideal situation because it interfered with family functions and vacations.
A JUDGE CAN ADD CONDITIONS TO PROTECT A CHILD
Nevertheless, the court was authorized to add conditions to the parenting time order, as
needed. MCL 722.27a(8) provides, in pertinent part, the following:
A parenting time order may contain any reasonable terms or conditions
that facilitate the orderly and meaningful exercise of parenting time by a parent,
including 1 or more of the following:
(c) Restrictions on the presence of third persons during parenting time.
(i) Any other reasonable condition determined to be appropriate in the
particular case.
THER COURT DECISION WAS A REASONABLE RESTRICTION TO PROTECT CHILDREN
In its order, the court prefaced the conditions placed on the parties by indicating that they
were necessary in order to prevent further abuse of the children and to satisfy the best interests of
the children. Even though the court stated that the disputed condition was for the safety of
plaintiff’s son, it appears that this condition was required for both his safety and as a precaution
for the minor children. In fact, the condition was one previously exercised by plaintiff
voluntarily to avoid further allegations of misconduct by defendant. The court did not exercise
jurisdiction over plaintiff’s son by stating when or where plaintiff’s son could spend time with
plaintiff. Instead, it exercised jurisdiction over the custody and parenting time arrangement with
the parties as it related to their daughters, taking into consideration the relationship between
plaintiff and the girls. This was a proper exercise of jurisdiction.2... We-MICHIGAN COURT OF APPEALS note also that the court was concerned with the actions by both parents and imposed
additional conditions upon the parties. Specifically, the court required both parents to engage in
counseling and to submit progress reports to the court. In light of the continued monitoring by
the court, we cannot conclude that the trial court erred in its ruling
---END----
Presented here by Flint Child Custody lawyer Terry Bankert
http://attorneybankert.com/
References
[1]Court: Michigan Court of Appeals (Unpublished),Case Name: McNutt v. McNutt
e-Journal Number: 47514,Judge(s): Per Curiam - Owens, K.F. Kelly, and Fort Hood
UNPUBLISHED, December 2, 2010 ,v No. 298480’Lapeer Circuit Court , LC No. 05-035949-DM
[trb]Genesee Family Law Attorney Terry Bankert presents this article in the style of SEO. The majority of the content is from[1] but changes for presentation have been made. You should seek advice or review the original material before reliance on its content. Questions may be directed to Flint Divorce Attorney Terry Bankert, 810-235-1970, http://attorneybankert.com/
Bankerts comments are cited [trb] or are the block HEADLINES.
[2]Michigan Family Law Benchbook ch 3 (ICLE 2d ed 2006), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2006553550&chapter=03 (last updated 12/10/2010) Sphere: Related Content
Saturday, December 11, 2010
Thursday, November 25, 2010
GEORGE LOPEZ MAY PAY SPOUSAL SUPPORT AND KALMAZOO MI DIVORCE COURT GOT ANOTHERS SPOUSAL SUPPORT WRONG.
Thursday, November 25, 2010
GEORGE LOPEZ TO PAY SPOUSAL SUPPORT? FLINT DIVORCE LAWYER REVIEWS SPOUSAL SUPPORT AWARD FROM KALAMAZOO JUDGE TOLD TO DO IT OVER AGAIN
Here a Flint Michigan Divorce Lawyer notes the rights of a celebrity wife to financial support which are similar to a Michigan spouse and using that law. “Ann Lopez, wife of comedian and "Lopez Tonight" host George Lopez, officially filed for divorce Tuesday in Los Angeles, making good on the couple's Sept. 27 announcement of a mutual decision to split up.”[1]“She is requesting spousal support, as well as primary custody of Mayan, reports TMZ.com. “[2]Flint Spousal Support Attorney Terry Bankert 810-235-1970 reviews Michigan Spousal support. (SEO) link to this article.
Full articel here
http://bankertspousalsupport.blogspot.com/2010/11/george-lopez-to-pay-spousal-support.html
Monday, November 22, 2010
CIVIL UNION AND CHILD CUSTODY.
VERMONT UPHOLDS RIGHT OF NON-BIOLOGICAL MOTHER TO HAVE CUSTODY, OTHER MOTHER RUNS.
The case Lisa Miller biological mother on the run , reviewed by Flint Divorce Attorney Terry Bankert ,as Vermont upholds custody order to lesbian non-biological mother. This is followed by a presentation of 3rdy Party Standing in Michigan by Flint Custody Lawyer Terry Bankert. (SEO)
The biological mother, Lisa Miller, became a Christian, gave up the lesbian lifestyle, and moved with her daughter to Virginia. But a 2009 order, which awarded sole custody of Isabella to non-biological mother … lesbian …Janet Jenkins, was upheld Monday by the Vermont Supreme Court.[3on 11/2/10]
Link to this posting
http://michiganchildcustody.blogspot.com/2010/11/vermont-continues-custody-woth-non.html
Friday, November 19, 2010
MILITARY DIVORCE AND RETIREMENT SPLIT ENFORCED EVEN WITH DISABILITY ELECTION
WIFE GETS RETIREMENT EVEN IF SEVERED WITH DISABILITY ELECTION
FLINT DIVORCE ATTORNEY TERRY BANKERT PRESENTS SEVERAL ISSUES CONCERNING MILITARY DIVORCE.
Presented here is an opinion of first impression of Michigan Court of Appeals concerning the issues surrounding whether a military spouse remains financially responsible to compensate his or her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment's property division where the military spouse makes a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment; Combat-related special compensation (CRSC)(10 USC § 1413a);
link to this site
http://woundedmilitary.blogspot.com/2010/11/wife-gets-retirment-even-if-severed.html
Wednesday, November 17, 2010
FAILING OR MISUNDERSTOOD? WHAT IS HAMP?
THE HAMP, FAILING OR JUST MISUNDERSTOOD?
DID YOU KNOW Home affordability modification Program failing horribly this 75 billion dollar program was planned to help 5 million home owners and it has not. What happened? What is HAMP discussed here.
What happened to the $75 billion Home Affordability Modification Program designed by the Obama Administration to help struggling homeowners by lowering borrowers’ monthly payments with mortgage rate reductions and extended loan terms. HAMP originally promised to help four to five million homeowners.[4]
TOTALS OF A REPORT HAMP MODIFICATION ACTIVITY BY SERVICER.
This program report through July 2010.
Total estimated eligible 60+ day delinquent borrowers 1,456,363
Trial Plan offers extended 1,553,925
All HAMP trials started 1,307,489
Active trial modifications 255,934
Permanent modifications 421,804
[5]
This site at http://dumpmycreditors.wordpress.com/2010/11/17/hamp-failing-or-just-misunderstood/
Sunday, November 14, 2010
WHAT IS MARITAL PROPERTY IN A DIVORCE
WHAT IS MARITAL PROEPRTY.
Every thing of economic value to a marriage—tangible or intangible property, job skills, educational degrees, future entitlements—may be viewed in some sense as a property interest.
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
THE FOLLOWING IS A PARTIAL SHOPPING LIST OF WHAT ARE MARITAL ASSEST.
A. Assets Earned During the Marriage
Assets earned by a spouse during the marriage are part of the marital estate. McNamara v Horner, 249 Mich App 177, 183; 642 NW2d 385 (2003).
B. Post Filing Acquisitions
Property to be received even after the divorce is marital property if the property was earned during the marriage. McNamara at 183.
C. Retirement Plans
Vested and unvested interests in retirement plans are marital property. MCL 552.18(1)–(2). In fact, MCL 552.101(4) requires that each judgment of divorce shall determine all rights of the parties as to all retirement plans. The Michigan Supreme Court agreed when it adopted MCR 3.211(B)(2).
D. Marital Home Appreciation
Appreciation in a marital home is considered a part of the marital estate:
The sharing and maintenance of a marital home affords both spouses an interest in any increase in its value (whether by equity payments or appreciation) over the term of the marriage. Such amount is clearly part of the marital estate. However, the down payment, the equity built up before the parties’ marriage, and any appreciation that occurred before the parties’ marriage should have been considered defendant’s separate estate. Reeves at 495–496.
As held by Reeves, where one party makes a down payment on a home from premarital (i.e. separate) assets, that down payment should be returned to the contributing spouse upon divorce as his/her separate property. Nonetheless, seemingly contrary to this rule, the Court of Appeals recently in Cunningham v Cunningham, ___ Mich App ___, ___ NW2d ___ (Docket No. 285541, decided 7/13/10), held that the husband’s contribution of $90,000 from his premarital worker’s compensation award toward the down payment on the marital home was sufficiently “commingled” with the marital estate so as to lose its character as separate property.[7]
E. Worker’s Compensation Benefits and Awards
Worker’s compensation benefits and awards are considered marital property subject to division. Petrie v Petrie, 41 Mich App 80, 84; 199 NW2d 673 (1972) (affirmed appointment of FOC to collect worker’s compensation award to pay alimony and child support per JOD); Evans v Evans, 98 Mich App 328, 330; 296 NW2d 248 (1980) (workers’ compensation proceeds received during the course of the marriage considered marital property subject to division); Smith v Smith, 113 Mich App 148, 151; 317 NW2d 324 (1982) (“Since the Worker’s Disability Compensation Act was promulgated to assist both the worker and her spouse, the trial court did not err when it included the compensation as part of the marital assets.”); Lee v Lee, 191 Mich App 73, 80; 477 NW2d 429 (1991) (workers’ compensation benefits properly included in the marital estate); and Hagen v Hagen, 202 Mich App 254, 258–260; 508 NW2d 196 (1993) (division of payments on workers’ compensation claim for injury that occurred during the marriage found proper).
However, as held recently in Cunningham, supra, ___ Mich App at 14–15:
Because a spouse’s earnings are classified as marital property only between the beginning and end of the marriage, see Bone v Bone, 148 Mich App 834, 838; 385 NW2d 706 (1986), we hold that worker’s compensation benefits are to be considered marital property only to the extent that they compensate for wages lost during the marriage, i.e., between the beginning and end of the marriage. Any compensation benefits awarded for time periods before the marriage or after its dissolution are akin to a party’s individual earnings and are to be considered separate property, as those earnings fall outside the beginning and end of the marriage.
F. Retention Bonuses
A “retention bonus” paid to the husband during the marriage was held not to be divisible marital property where it was subject to forfeiture unless the husband remained employed until a date after the divorce. Skelly v Skelly, 286 Mich App 578, 780 NW2d 368 (2009). Reasoning that this “retention bonus” would not really be earned until after the divorce, the Court of Appeals reversed the trial court’s classification of this asset as marital property.
Practice Tip: It is important to distinguish a Skelly-type retention bonus, which was payable for remaining employed post divorce, from nonvested or deferred benefits that are intended as compensation for services during the marriage, which are divisible, but will be paid post-divorce.
G. Stock Options
Stock options are divisible marital assets. Everett v Everett, 195 Mich App 50; 489 NW2d 111 (1992).
H. Employee Stock Ownership Plans
Employee stock ownership plans (ESOP’s) are divisible marital assets. Burkey v Burkey (On Rehearing), 189 Mich App 72; 471 NW2d 631 (1991). Even unvested rights in a stock/annuity plan are divisible. Vollmer v Vollmer, 187 Mich App 688, 690; 468 NW2d 236 (1990).
I. Vacation and Sick Time
Employee benefits must always be considered when identifying assets comprising the marital estate. “Banked” vacation and sick time can be divisible marital assets. The key is whether the employee will receive payment for the accumulated time if not used before retirement. Lesko v Lesko, 184 Mich App 395, 401–402; 457 NW2d 695 (1990).
Practice Tip: The Lesko decision points out that while these employee benefits are divisible marital assets, it is error not to reduce the value of these assets by considering the tax consequences associated with the receipt of these taxable assets.
J. Advanced Degrees
Where an advanced degree is the end product of a concerted family effort, involving the mutual sacrifice, effort, and contribution of both spouses, there arises a “marital asset” subject to distribution, wherein the interest of the nonstudent spouse consists of an “equitable claim” regarding the degree. However, an evaluation of the equitable claim does not include valuing the degree. Instead, the focus of an award involving an advanced degree is not to reimburse the nonstudent spouse for loss of expectations over what the degree might potentially have produced, but to reimburse that spouse for unrewarded sacrifices, efforts, and contributions toward attainment of the degree on the ground that it would be equitable to do so in view of the fact that the spouse will not be sharing in the fruits of the degree. Postema v Postema, 189 Mich App 89; 471 NW2d 912 (1991).
Practice Tip: In the same case, the court held that a nursing degree was not an advanced degree subject to the nonstudent spouse’s equitable claim. Postema at 108, citing Sullivan v Sullivan, 175 Mich App 508, 512; 438 NW2d 309 (1989). The undergraduate degree in Sullivan was a Bachelor of Arts degree.
K. Health Insurance Refund
A participant on the SBM—FLS[8] listserv asked whether a (large) refund from the parties’ group health insurer for medical costs paid over the course of a year for the family constituted a marital asset. The question is more properly framed as how would the refund check be characterized if it is not considered a marital asset. The check is not “income” for support purposes, and it is not separate property to the employee-spouse for the same reason retirement benefits are not separate property. The check is clearly a marital asset.
L. Employee Buyout
Another listserv participant inquired whether the proceeds of a General Motors 1-time employee buyout in the amount of $35,000.00 is a marital asset, where the employee-spouse has been working at GM for 28 years, and the marriage is only 6 years in duration. Once again, assuming the payout is not specifically deemed a replacement for future earnings, the check is clearly a marital asset. How the check is divided between the parties, in terms of the Sparks[9] factors, and coverture considerations (frequently utilized when dividing defined benefit plans under the deferred division method), is beyond the scope of this presentation
Terry Ray Bankert is a Michigan Attorney specializing in Family Law, and works as a Flint Divorce Attorney, Flint Divorce lawyer, Genesee Divorce Lawyer and Genesee Divorce Attorney.(SEO) For help with your questions call 810-235-1970. Or http://www.attorneybankert.com/ . Principle Source ICLE 09/16/10
Saturday, November 13, 2010
THE ONLY OPTION FOR SOME. YOU WILL NOT BE THE ONLY RETIREE YOU WILL NOT BE ALONE.
According to a recent story in USA Today, the Consumer Bankruptcy Project found that bankruptcy filings by those 65 and older jumped by 150 percent from 1991 to 2007. At the same time, bankruptcy filings for U.S. residents from the ages of 75 to 84 increased 433 percent.[9] You may need a bankruptcy attorney.
FILING FOR CHAPTER 7 BANKRUPTCY FOR SOME MAY BE THE ONLY WAY TO GET A FRESH START TO BEGIN RETIREMENT YEARS.
We work our jobs raise our kids pay our taxes and what happens? We have to beg our way through retirement. Is this a option that you want?
Instead of saving for retirement, a growing number of elderly Americans are instead preparing to file for Chapter 7 bankruptcy. At least that’s what the results of a new survey say.[9]
If you are approaching retirement years your age group ranks are growing in bankruptcy court.
According to a recent story in USA Today, the Consumer Bankruptcy Project found that bankruptcy filings by those 65 and older jumped by 150 percent from 1991 to 2007. At the same time, bankruptcy filings for U.S. residents from the ages of 75 to 84 increased 433 percent.[9]
ELDERLY HEALTH CARE AND BANKRUPTCY
see notes at;
http://goodmorningflint.blogspot.com/2010/11/only-option-for-some-you-are-not-alone.html
Who do you trust to advise you?
A study was conducted by Professor John Pottow, an expert on bankruptcy at the University of Michigan Law School. He found that even though the elderly account for a relatively small share of overall bankruptcy filings, the growth rate in their filings has been dramatic. For example, from 1991 to 2007, the percentage of bankruptcy petitioners age 65 to 74 rose 178 percent. Those figures reflect trends before the recession began in 2008, so it’s fair to assume the situation has worsened in the past few years due to job losses, diminished retirement portfolios and housing equity.[7]
Our economy and housing values will only slowly recover. How much time do we have? What are our choices? The notes in the following section show you choice, filing for personal bankruptcy.
Posted here by Flint Area Bankruptcy Attorney Terry Bankert 810-235-1970
PERSONAL BANKRUPTCY
Is personal bankruptcy -- filing Chapter 7 -- the right solution for you? For millions of debt-ridden people, it's the only way out of their financial quagmire. Today's high level of unemployment is resulting in waves of desperate folks seeking shelter under Chapter 7 of the U.S. bankruptcy code. [1]
What It Is:
Chapter 7 refers to the section of U.S. bankruptcy law under which companies and individuals liquidate their assets in order to repay their debts.[2]
WHY ARE MORE ELDERLY GOING BANKRUPT?
Not only have bankruptcy filings within the general populace increased in Colorado but so have bankruptcy filings for those over 60 years of age, with the primary reason attributed to credit card debt. Many of the elderly have limited incomes, typically Social Security retirement benefits combined with a pension income, and such limited income is unlikely to offset the increasing interest, late charges and other fees charged by the credit card companies.[8]
There’s no empirical evidence as to why bankruptcy filings have increased among the elderly but my experience (from years of experience handling bankruptcy matters in Denver and most areas of Colorado) is that the elderly are generally less sophisticated with using credit cards and do not have similar access to other types of credit (due to having a fixed income). Additionally, many of the elderly are not as likely to negotiate with creditors and are typically less inclined to request financial help from family and friends.[8]
Most of the bankruptcy filings I see from elderly clients are chapter 7 cases. Having a limited income due to being retired, the overwhelming majority of my clients pass the Means Test and are not required to pay back any debts to unsecured creditors in a chapter 13 payment plan.[8]
The minority of my elderly clients who do file for chapter 13 in Colorado do so because of a pending foreclosure (with their house being their most valuable asset) or because of a previous chapter 7 filing within the past 8 years. Those facing foreclosure often lack the ability to keep up with monthly mortgage payments (especially as they simultaneously tackle the aforementioned credit card debt). [8]
Many of my elderly clients are also upside down on their mortgages as housing prices have decreased in Colorado (and nationwide) and are forced to file for chapter 13 bankruptcy to prevent against foreclosure.[8]
How It Works/Example:
Individuals, partnerships, or corporations can file bankruptcy under Chapter 7.[2]
Individuals
To file Chapter 7, the debtor files a petition with the local bankruptcy court (in some cases, creditors can force a debtor into Chapter 7 by filing the petition themselves). The debtor must provide the court with financial and tax information, as well as a list of creditors and outstanding debts. In most cases, the court also requires proof that the individual has obtained credit counseling. Filing the Chapter 7 petition automatically stops most collection actions against the debtor, including lawsuits, garnishments, and phone calls.[2]
Here's a shocking statistic to put the current financial environment in perspective: 1,512,989 people filed for bankruptcy in the 12 months ending June 30, 2010, a +21% increase from the 12 month period ending June 30, 2009. That's more people than the populations of any of these 10 states: New Hampshire, Maine, Hawaii, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota or Wyoming. It's also the most bankruptcies filed for any period following the Bankruptcy Prevention Act of 2005. [1]
Bankruptcy cases filed in federal courts for Fiscal Year (FY) 2010, the 12-month period ending Sept. 30, totaled 1,596,355, up 13.8 percent over total FY 2009 bankruptcy filings of 1,402,816; according to statistics released Monday by the Administrative Office of the U.S. Courts. While non-business bankruptcy filings continued to rise in FY 2010, business filings dropped slightly for the first time since 2006. The bankruptcies reported are for Oct. 1, 2009 through Sept. 30, 2010.[5]
There are many advantages to declaring bankruptcy. In most cases, filing for Chapter 7 will automatically stop most collection actions, including lawsuits, wage garnishments, and those never-ending phone calls. [1]
A TRUSTEE GETS INVOLVED
The U.S. trustee (or the court itself, in some states) then appoints an impartial trustee to handle the case and liquidate the debtor's assets. If all the debtor's assets are exempt or subject to liens, there may not be any assets to liquidate and hence no money to distribute to creditors. If there are assets to liquidate, however, the creditors usually file a written claim so that they can receive some of the proceeds. The trustee handles the liquidation and determines which creditors are paid first.[2]
However, before you take the drastic step of filing under Chapter 7, you need to be fully apprised of the potential pitfalls. Here's a look at a few nasty surprises that may await you:[1]
Bankruptcy laws vary from state to state.
Every state has its own peculiarities and exemptions; some state laws are more generous than others. Some states allow exemptions to shelter your automobile, household goods, Individual Retirement Accounts (IRAs), etc. Other states are more restrictive. Before you file for bankruptcy, do some homework to find out the laws applicable to your home state.[1]
Mortgages and any other secured loans are not eliminated.
Bankruptcy is designed to get creditors off your back, so you can get some breathing room to right yourself. Certain types of unsecured debt (e.g., credit cards) can be wiped off the books. However, to the consternation of many who file for bankruptcy, the laws don't allow you to just walk away from your mortgage or any other secured loan (any loan in which you've pledge some kind of "collateral" -- like your car or your home -- for the loan). Bankruptcy only keeps those payments at bay until you have dealt with other creditors.[1]
Collateral is an asset pledged by a borrower to a lender, usually in return for a loan. The lender has the right to seize the collateral if the borrower defaults on the obligation.[3]
Any cosigners of any collateral are in the same boat with you.
Likewise, if any of your collateral involves consignors, your cosigners won't be able to emerge out of debt with you. They will be liable for part or all of the debt you discharge through bankruptcy.[1]
Bankruptcy is reported on your credit report for 10 years.
Bankruptcy is like a Scarlet Letter that follows you around for a decade. The good news is that within this time frame, you can still re-establish a good credit rating, through frugality and paying off your debts in a timely fashion.[1]
What It Is:
A credit report is a report detailing a person's financial history specifically related to their ability to repay borrowed money.[4]
How It Works/Example:
There are three major credit bureau s in the United States: TransUnion, Experian and Equifax. Each keeps a database of financial information about borrowers, including the names of all their creditors (past and present), the dates when their accounts opened and closed, whether the account is a joint account, the balance and credit limit on each account, and the number and dates of late payments.[4]
Related information is also including such as previous names, address history, birth date, phone numbers, social security number, marital status, any legal judgments, child support owed, arrests, indictments, convictions, etc. Not just anyone can view someone's credit report --it is only available to those with a legally permissible purpose.[4]
Information on credit reports are used to determine a person's credit score. The credit score (or FICO score) in turn reflects a person's credit risk--that is, whether he or she is a trustworthy borrower. The more prompt and responsible a person is financially, the higher his or her FICO score is.[4]
In general, negative information (such as late payments or tax liens) remains on a credit report for seven years. Bankruptcies stay on the report for 10.
By law, credit bureaus must send you one copy (at your request) of your credit report each year. Additionally, if you have been denied a credit card because of information on your credit report, you may receive another free copy within 60 days of the denial. In most other circumstances, you usually have to pay the credit bureau for a copy of your credit report.[4]
Why It Matters:
Your credit report and the creditworthiness it reflects tells banks, credit card companies, retail stores, utilities, landlords, and even employers whether you are a financially responsible person. Bad credit causes people to be denied for loans, pay higher interest rates on loans, and have trouble in even the most minor areas of life, such as renting a video, getting utilities turned on or renting a car. Character and collateral also influence a person's creditworthiness, but the credit report often outweighs these attributes.[4]
It is important to note that credit reports often contain errors, so a consistent periodic look at your credit report can be very helpful. This also goes a long way toward preventing identity theft, because any accounts opened in your name will appear there. You have the right to contest incorrect information in your credit report, and credit bureau s by law must provide toll-free phone numbers, live customer-service representatives, and an expeditious investigation process. [4]
Bankruptcy does not wipe out withholding or sales taxes.
It's possible to get rid of old income taxes that are more than three years old, but this benefit has given rise to a myth that you also can eliminate withholding or sales taxes. This is not possible, no matter how old the taxes.[1]
You can't cherry pick the debts and property to list in your bankruptcy.
Many people seem to think that they can go through their portfolio of possessions and pick and choose what they want to list in the bankruptcy. They're shocked when they discover that it's all fair game. When you file bankruptcy, the law mandates that you list all your property and debts.[1]
Declaring bankruptcy does not get your "ex" off your back.
Bankruptcy does not allow you to cease payment on child support or alimony. Sorry, but you still need to write those checks. Although divorce is one of the most common causes of bankruptcy (click here to see the Top Causes of Bankruptcy...And How to Avoid Them), your agreement is not affected by a Chapter 7 filing. So, if you're thinking that you can wiggle out of those responsibilities, think again.[1]
Declaring bankruptcy does not get you off the hook on student loans.
Your student loan payments still need to be made. They can't be wiped out, as with a credit card balance.[1]
You must still fear the repo man.
A bankruptcy discharge doesn't eliminate liens. A secured debt is a debt where the creditor has a lien on your property and can repossess it if you don't pay the debt. Bankruptcy can wipe out the debt, but it still doesn't prevent the secured creditor from repossessing your property.[1]
HEALTH CARE AND BANKRUPTCY
healthcare expenses can wreck retirement security - a fact underscored by a recent study that found medical expenses are a major contributor to bankruptcy among older Americans.[6]
The study was conducted by Professor John Pottow, an expert on bankruptcy at the University of Michigan Law School. He found that even though the elderly account for a relatively small share of overall bankruptcy filings, the growth rate in their filings has been dramatic. For example, from 1991 to 2007, the percentage of bankruptcy petitioners age 65 to 74 rose 178 percent. Those figures reflect trends before the recession began in 2008, so it's fair to assume the situation has worsened in the past few years due to job losses, diminished retirement portfolios and housing equity.[6]
Healthcare is a major area of expense in retirement, and costs are rising more quickly than overall inflation.[6]
The Center for Retirement Research at Boston College (CRR) reports that the typical married couple at age 65 can expect to spend $197,000 in lifetime uninsured health costs, including insurance premiums, out-of-pocket and home healthcare. That figure excludes any long-term care need. When nursing care is factored in, the typical cost rises to $260,000, with a 5 percent chance of hitting $570,000.[6]
Research by Fidelity Investments shows that retiree healthcare expenses this year are 4.2 percent higher than in 2009, and have jumped 56 percent since 2002. By contrast, overall consumer prices are up just 1.1 percent so far this year. Fidelity also found that monthly healthcare costs average $535 this year, second only to the cost of food.[6]
A JUDGE GETS INVOLVED
Ultimately, a judge decides whether to discharge an individual's debt. The judge can deny the discharge if the debtor failed to keep adequate records, failed to explain the loss of any assets, committed a crime, disobeyed court orders, or did not seek credit counseling. Alimony, child support, and student loans generally cannot be discharged in a Chapter 7 case, nor can most judgments against the debtor for criminal acts.[2]
Why It Matters:
Chapter 7 is usually the last resort for individuals and businesses. For individuals, the goal of Chapter 7 is to get a fresh start by removing debts. However, bankruptcy virtually ruins a person's credit for several years, making it very difficult and expensive to borrow money in the future.[2]
The law works to prevent people from filing Chapter 7 merely to avoid repaying a debt. This is why not all individuals qualify for Chapter 7, especially those with high monthly income or those primarily saddled with consumer debts (i.e., credit card debt). If the individual does not qualify for Chapter 7, the case usually becomes a Chapter 13 filing, where the individual must still repay the debt, albeit under a payment plan.[2]
ELDERLY AMERICANS AND BANKRUPTCY
From these unsettling numbers, it seems that more elderly Americans will soon need to learn how to claim bankruptcy.[9]
This is a shame: U.S. residents who are nearing their retirement ages are supposed to be worrying about how much money they’ll need to save to spend their post-working years in a state of peace. They’re not supposed to learning the ins and outs of how to file bankruptcy.[9]
However, this is exactly what is happening. As usual, blame falls on the struggling national economy. Older Americans are facing the same problems that all U.S. residents are facing: Some have lost their jobs late in life. Others have had to cope with medical bills that are simply overwhelming. Still others have watched as their homes have fallen in value. Many U.S. residents had been counting on their homes’ ever-increasing values to help fund their retirement years. The Great Recession has certainly scuttled that dream.
Of course, the entire country is struggling these days, or so it seems. The number of bankruptcy filings, both of Chapter 7 bankruptcy and Chapter 13 claims, is on the rise. Bankruptcy filings aren’t discriminating based on age, gender, or wealth. U.S. residents of all kinds are facing overwhelming debt and declining yearly incomes.[9]
It’s a situation that won’t improve until the national economy shows some sign of regaining momentum. Unfortunately, it doesn’t look as if this is going to happen any time soon. Yes, it’s true that officially the economy is in recovery mode, but because unemployment remains so high, and because home values continue to fall or remain stagnant, the recovery doesn’t feel like one.[9]
Older Americans struggling with their finances do have some options to avoid Chapter 13 or Chapter 7 bankruptcy. [9]
DO YOU WANT TO BORROW FROM FAMILY MEMBERS?
They can try to borrow money from family members. They can work with non-profit credit counselors to set up budgets that allow them to pay down their outstanding debt. They can also take out debt consolidation loans or work with debt settlement providers. Of course, none of these options is perfect. They call come with negatives, everything from high fees and interest rates to the embarrassment of asking family members for financial help.[9]
FILING FOR CHAPTER 7 BANKRUPTCY FOR SOME MAY BE THE ONLY WAY TO GET A FRESH START TO BEGIN RETIREMENT YEARS.]
Posted here by Terry R. Bankeret
http://attorneybankert.com/
[1]
http://www.investinganswers.com/education/going-bankrupt-isnt-easy-startling-facts-you-never-knew-about-filing-bankrup-1958
[2]
http://www.investinganswers.com/term/chapter-7-352
[3]
http://www.investinganswers.com/term/collateral-1034
[4]
http://www.investinganswers.com/term/credit-report-113
[5]
http://www.grandrapidsmn.com/business/article_13b0cf04-ee8e-11df-8d50-001cc4c03286.html
[6]
http://www.reuters.com/article/idUSTRE6A73M920101108
[7]
http://www.americasnewsonline.com/study-on-bankruptcy-shows-dramatic-growth-in-filings-from-elderly-911/
[8]
http://www.jdsupra.com/post/documentViewer.aspx?fid=0dfce5a1-baa3-41f2-b47c-ea24f4efc410
[9]
http://www.creditloan.com/blog/2010/10/29/chapter-7-bankruptcy-filings-on-rise-among-older-americans/ Sphere: Related Content
FILING FOR CHAPTER 7 BANKRUPTCY FOR SOME MAY BE THE ONLY WAY TO GET A FRESH START TO BEGIN RETIREMENT YEARS.
We work our jobs raise our kids pay our taxes and what happens? We have to beg our way through retirement. Is this a option that you want?
Instead of saving for retirement, a growing number of elderly Americans are instead preparing to file for Chapter 7 bankruptcy. At least that’s what the results of a new survey say.[9]
If you are approaching retirement years your age group ranks are growing in bankruptcy court.
According to a recent story in USA Today, the Consumer Bankruptcy Project found that bankruptcy filings by those 65 and older jumped by 150 percent from 1991 to 2007. At the same time, bankruptcy filings for U.S. residents from the ages of 75 to 84 increased 433 percent.[9]
ELDERLY HEALTH CARE AND BANKRUPTCY
see notes at;
http://goodmorningflint.blogspot.com/2010/11/only-option-for-some-you-are-not-alone.html
Who do you trust to advise you?
A study was conducted by Professor John Pottow, an expert on bankruptcy at the University of Michigan Law School. He found that even though the elderly account for a relatively small share of overall bankruptcy filings, the growth rate in their filings has been dramatic. For example, from 1991 to 2007, the percentage of bankruptcy petitioners age 65 to 74 rose 178 percent. Those figures reflect trends before the recession began in 2008, so it’s fair to assume the situation has worsened in the past few years due to job losses, diminished retirement portfolios and housing equity.[7]
Our economy and housing values will only slowly recover. How much time do we have? What are our choices? The notes in the following section show you choice, filing for personal bankruptcy.
Posted here by Flint Area Bankruptcy Attorney Terry Bankert 810-235-1970
PERSONAL BANKRUPTCY
Is personal bankruptcy -- filing Chapter 7 -- the right solution for you? For millions of debt-ridden people, it's the only way out of their financial quagmire. Today's high level of unemployment is resulting in waves of desperate folks seeking shelter under Chapter 7 of the U.S. bankruptcy code. [1]
What It Is:
Chapter 7 refers to the section of U.S. bankruptcy law under which companies and individuals liquidate their assets in order to repay their debts.[2]
WHY ARE MORE ELDERLY GOING BANKRUPT?
Not only have bankruptcy filings within the general populace increased in Colorado but so have bankruptcy filings for those over 60 years of age, with the primary reason attributed to credit card debt. Many of the elderly have limited incomes, typically Social Security retirement benefits combined with a pension income, and such limited income is unlikely to offset the increasing interest, late charges and other fees charged by the credit card companies.[8]
There’s no empirical evidence as to why bankruptcy filings have increased among the elderly but my experience (from years of experience handling bankruptcy matters in Denver and most areas of Colorado) is that the elderly are generally less sophisticated with using credit cards and do not have similar access to other types of credit (due to having a fixed income). Additionally, many of the elderly are not as likely to negotiate with creditors and are typically less inclined to request financial help from family and friends.[8]
Most of the bankruptcy filings I see from elderly clients are chapter 7 cases. Having a limited income due to being retired, the overwhelming majority of my clients pass the Means Test and are not required to pay back any debts to unsecured creditors in a chapter 13 payment plan.[8]
The minority of my elderly clients who do file for chapter 13 in Colorado do so because of a pending foreclosure (with their house being their most valuable asset) or because of a previous chapter 7 filing within the past 8 years. Those facing foreclosure often lack the ability to keep up with monthly mortgage payments (especially as they simultaneously tackle the aforementioned credit card debt). [8]
Many of my elderly clients are also upside down on their mortgages as housing prices have decreased in Colorado (and nationwide) and are forced to file for chapter 13 bankruptcy to prevent against foreclosure.[8]
How It Works/Example:
Individuals, partnerships, or corporations can file bankruptcy under Chapter 7.[2]
Individuals
To file Chapter 7, the debtor files a petition with the local bankruptcy court (in some cases, creditors can force a debtor into Chapter 7 by filing the petition themselves). The debtor must provide the court with financial and tax information, as well as a list of creditors and outstanding debts. In most cases, the court also requires proof that the individual has obtained credit counseling. Filing the Chapter 7 petition automatically stops most collection actions against the debtor, including lawsuits, garnishments, and phone calls.[2]
Here's a shocking statistic to put the current financial environment in perspective: 1,512,989 people filed for bankruptcy in the 12 months ending June 30, 2010, a +21% increase from the 12 month period ending June 30, 2009. That's more people than the populations of any of these 10 states: New Hampshire, Maine, Hawaii, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota or Wyoming. It's also the most bankruptcies filed for any period following the Bankruptcy Prevention Act of 2005. [1]
Bankruptcy cases filed in federal courts for Fiscal Year (FY) 2010, the 12-month period ending Sept. 30, totaled 1,596,355, up 13.8 percent over total FY 2009 bankruptcy filings of 1,402,816; according to statistics released Monday by the Administrative Office of the U.S. Courts. While non-business bankruptcy filings continued to rise in FY 2010, business filings dropped slightly for the first time since 2006. The bankruptcies reported are for Oct. 1, 2009 through Sept. 30, 2010.[5]
There are many advantages to declaring bankruptcy. In most cases, filing for Chapter 7 will automatically stop most collection actions, including lawsuits, wage garnishments, and those never-ending phone calls. [1]
A TRUSTEE GETS INVOLVED
The U.S. trustee (or the court itself, in some states) then appoints an impartial trustee to handle the case and liquidate the debtor's assets. If all the debtor's assets are exempt or subject to liens, there may not be any assets to liquidate and hence no money to distribute to creditors. If there are assets to liquidate, however, the creditors usually file a written claim so that they can receive some of the proceeds. The trustee handles the liquidation and determines which creditors are paid first.[2]
However, before you take the drastic step of filing under Chapter 7, you need to be fully apprised of the potential pitfalls. Here's a look at a few nasty surprises that may await you:[1]
Bankruptcy laws vary from state to state.
Every state has its own peculiarities and exemptions; some state laws are more generous than others. Some states allow exemptions to shelter your automobile, household goods, Individual Retirement Accounts (IRAs), etc. Other states are more restrictive. Before you file for bankruptcy, do some homework to find out the laws applicable to your home state.[1]
Mortgages and any other secured loans are not eliminated.
Bankruptcy is designed to get creditors off your back, so you can get some breathing room to right yourself. Certain types of unsecured debt (e.g., credit cards) can be wiped off the books. However, to the consternation of many who file for bankruptcy, the laws don't allow you to just walk away from your mortgage or any other secured loan (any loan in which you've pledge some kind of "collateral" -- like your car or your home -- for the loan). Bankruptcy only keeps those payments at bay until you have dealt with other creditors.[1]
Collateral is an asset pledged by a borrower to a lender, usually in return for a loan. The lender has the right to seize the collateral if the borrower defaults on the obligation.[3]
Any cosigners of any collateral are in the same boat with you.
Likewise, if any of your collateral involves consignors, your cosigners won't be able to emerge out of debt with you. They will be liable for part or all of the debt you discharge through bankruptcy.[1]
Bankruptcy is reported on your credit report for 10 years.
Bankruptcy is like a Scarlet Letter that follows you around for a decade. The good news is that within this time frame, you can still re-establish a good credit rating, through frugality and paying off your debts in a timely fashion.[1]
What It Is:
A credit report is a report detailing a person's financial history specifically related to their ability to repay borrowed money.[4]
How It Works/Example:
There are three major credit bureau s in the United States: TransUnion, Experian and Equifax. Each keeps a database of financial information about borrowers, including the names of all their creditors (past and present), the dates when their accounts opened and closed, whether the account is a joint account, the balance and credit limit on each account, and the number and dates of late payments.[4]
Related information is also including such as previous names, address history, birth date, phone numbers, social security number, marital status, any legal judgments, child support owed, arrests, indictments, convictions, etc. Not just anyone can view someone's credit report --it is only available to those with a legally permissible purpose.[4]
Information on credit reports are used to determine a person's credit score. The credit score (or FICO score) in turn reflects a person's credit risk--that is, whether he or she is a trustworthy borrower. The more prompt and responsible a person is financially, the higher his or her FICO score is.[4]
In general, negative information (such as late payments or tax liens) remains on a credit report for seven years. Bankruptcies stay on the report for 10.
By law, credit bureaus must send you one copy (at your request) of your credit report each year. Additionally, if you have been denied a credit card because of information on your credit report, you may receive another free copy within 60 days of the denial. In most other circumstances, you usually have to pay the credit bureau for a copy of your credit report.[4]
Why It Matters:
Your credit report and the creditworthiness it reflects tells banks, credit card companies, retail stores, utilities, landlords, and even employers whether you are a financially responsible person. Bad credit causes people to be denied for loans, pay higher interest rates on loans, and have trouble in even the most minor areas of life, such as renting a video, getting utilities turned on or renting a car. Character and collateral also influence a person's creditworthiness, but the credit report often outweighs these attributes.[4]
It is important to note that credit reports often contain errors, so a consistent periodic look at your credit report can be very helpful. This also goes a long way toward preventing identity theft, because any accounts opened in your name will appear there. You have the right to contest incorrect information in your credit report, and credit bureau s by law must provide toll-free phone numbers, live customer-service representatives, and an expeditious investigation process. [4]
Bankruptcy does not wipe out withholding or sales taxes.
It's possible to get rid of old income taxes that are more than three years old, but this benefit has given rise to a myth that you also can eliminate withholding or sales taxes. This is not possible, no matter how old the taxes.[1]
You can't cherry pick the debts and property to list in your bankruptcy.
Many people seem to think that they can go through their portfolio of possessions and pick and choose what they want to list in the bankruptcy. They're shocked when they discover that it's all fair game. When you file bankruptcy, the law mandates that you list all your property and debts.[1]
Declaring bankruptcy does not get your "ex" off your back.
Bankruptcy does not allow you to cease payment on child support or alimony. Sorry, but you still need to write those checks. Although divorce is one of the most common causes of bankruptcy (click here to see the Top Causes of Bankruptcy...And How to Avoid Them), your agreement is not affected by a Chapter 7 filing. So, if you're thinking that you can wiggle out of those responsibilities, think again.[1]
Declaring bankruptcy does not get you off the hook on student loans.
Your student loan payments still need to be made. They can't be wiped out, as with a credit card balance.[1]
You must still fear the repo man.
A bankruptcy discharge doesn't eliminate liens. A secured debt is a debt where the creditor has a lien on your property and can repossess it if you don't pay the debt. Bankruptcy can wipe out the debt, but it still doesn't prevent the secured creditor from repossessing your property.[1]
HEALTH CARE AND BANKRUPTCY
healthcare expenses can wreck retirement security - a fact underscored by a recent study that found medical expenses are a major contributor to bankruptcy among older Americans.[6]
The study was conducted by Professor John Pottow, an expert on bankruptcy at the University of Michigan Law School. He found that even though the elderly account for a relatively small share of overall bankruptcy filings, the growth rate in their filings has been dramatic. For example, from 1991 to 2007, the percentage of bankruptcy petitioners age 65 to 74 rose 178 percent. Those figures reflect trends before the recession began in 2008, so it's fair to assume the situation has worsened in the past few years due to job losses, diminished retirement portfolios and housing equity.[6]
Healthcare is a major area of expense in retirement, and costs are rising more quickly than overall inflation.[6]
The Center for Retirement Research at Boston College (CRR) reports that the typical married couple at age 65 can expect to spend $197,000 in lifetime uninsured health costs, including insurance premiums, out-of-pocket and home healthcare. That figure excludes any long-term care need. When nursing care is factored in, the typical cost rises to $260,000, with a 5 percent chance of hitting $570,000.[6]
Research by Fidelity Investments shows that retiree healthcare expenses this year are 4.2 percent higher than in 2009, and have jumped 56 percent since 2002. By contrast, overall consumer prices are up just 1.1 percent so far this year. Fidelity also found that monthly healthcare costs average $535 this year, second only to the cost of food.[6]
A JUDGE GETS INVOLVED
Ultimately, a judge decides whether to discharge an individual's debt. The judge can deny the discharge if the debtor failed to keep adequate records, failed to explain the loss of any assets, committed a crime, disobeyed court orders, or did not seek credit counseling. Alimony, child support, and student loans generally cannot be discharged in a Chapter 7 case, nor can most judgments against the debtor for criminal acts.[2]
Why It Matters:
Chapter 7 is usually the last resort for individuals and businesses. For individuals, the goal of Chapter 7 is to get a fresh start by removing debts. However, bankruptcy virtually ruins a person's credit for several years, making it very difficult and expensive to borrow money in the future.[2]
The law works to prevent people from filing Chapter 7 merely to avoid repaying a debt. This is why not all individuals qualify for Chapter 7, especially those with high monthly income or those primarily saddled with consumer debts (i.e., credit card debt). If the individual does not qualify for Chapter 7, the case usually becomes a Chapter 13 filing, where the individual must still repay the debt, albeit under a payment plan.[2]
ELDERLY AMERICANS AND BANKRUPTCY
From these unsettling numbers, it seems that more elderly Americans will soon need to learn how to claim bankruptcy.[9]
This is a shame: U.S. residents who are nearing their retirement ages are supposed to be worrying about how much money they’ll need to save to spend their post-working years in a state of peace. They’re not supposed to learning the ins and outs of how to file bankruptcy.[9]
However, this is exactly what is happening. As usual, blame falls on the struggling national economy. Older Americans are facing the same problems that all U.S. residents are facing: Some have lost their jobs late in life. Others have had to cope with medical bills that are simply overwhelming. Still others have watched as their homes have fallen in value. Many U.S. residents had been counting on their homes’ ever-increasing values to help fund their retirement years. The Great Recession has certainly scuttled that dream.
Of course, the entire country is struggling these days, or so it seems. The number of bankruptcy filings, both of Chapter 7 bankruptcy and Chapter 13 claims, is on the rise. Bankruptcy filings aren’t discriminating based on age, gender, or wealth. U.S. residents of all kinds are facing overwhelming debt and declining yearly incomes.[9]
It’s a situation that won’t improve until the national economy shows some sign of regaining momentum. Unfortunately, it doesn’t look as if this is going to happen any time soon. Yes, it’s true that officially the economy is in recovery mode, but because unemployment remains so high, and because home values continue to fall or remain stagnant, the recovery doesn’t feel like one.[9]
Older Americans struggling with their finances do have some options to avoid Chapter 13 or Chapter 7 bankruptcy. [9]
DO YOU WANT TO BORROW FROM FAMILY MEMBERS?
They can try to borrow money from family members. They can work with non-profit credit counselors to set up budgets that allow them to pay down their outstanding debt. They can also take out debt consolidation loans or work with debt settlement providers. Of course, none of these options is perfect. They call come with negatives, everything from high fees and interest rates to the embarrassment of asking family members for financial help.[9]
FILING FOR CHAPTER 7 BANKRUPTCY FOR SOME MAY BE THE ONLY WAY TO GET A FRESH START TO BEGIN RETIREMENT YEARS.]
Posted here by Terry R. Bankeret
http://attorneybankert.com/
[1]
http://www.investinganswers.com/education/going-bankrupt-isnt-easy-startling-facts-you-never-knew-about-filing-bankrup-1958
[2]
http://www.investinganswers.com/term/chapter-7-352
[3]
http://www.investinganswers.com/term/collateral-1034
[4]
http://www.investinganswers.com/term/credit-report-113
[5]
http://www.grandrapidsmn.com/business/article_13b0cf04-ee8e-11df-8d50-001cc4c03286.html
[6]
http://www.reuters.com/article/idUSTRE6A73M920101108
[7]
http://www.americasnewsonline.com/study-on-bankruptcy-shows-dramatic-growth-in-filings-from-elderly-911/
[8]
http://www.jdsupra.com/post/documentViewer.aspx?fid=0dfce5a1-baa3-41f2-b47c-ea24f4efc410
[9]
http://www.creditloan.com/blog/2010/10/29/chapter-7-bankruptcy-filings-on-rise-among-older-americans/ Sphere: Related Content
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