GOOD MORNING FLINT! date 01/08/2013,Divorce, property and parenting time!
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By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970, The purpose here is media consult counsel before reliance.
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Presented here for media to include WFLT 1420 8:45 am radio broadcast on 01/08/13. Also discussed on this program is my unbundeling of services to economically help those that want a do it yourself divorce [ initial consultation free], Chapter 7 Bankruptcy initial payment $200. Congratulations to Larry Watkins the current Superintendent of Flint Community Schools, and comments on the vacancy on the Mott College Board of Trustees, you should apply.
Issues:
Divorce; Parenting time; Shade v. Wright; MCL 722.27a; [1]
HUSBAND APPEALED AN OAKLAND COUNTY FAMILY COURT DECISION
Defendant first argues that the trial court erred by failing to consider the established
custodial environment of the children, failing to define the burden of proof, and failing to make
findings under the best-interest factors of MCL 722.23. [2]
HUSBAND CHANGED IS POSITION ON APPEAL, BAD IDEA.
A party need not take exception to a finding of fact or ultimate decision by the trial court
in order to preserve the issue on appeal. MCR 2.517(A)(7). However, “‘[a] party may not take a
position in the trial court and subsequently seek redress in an appellate court that is based on a
position contrary to that taken in the trial court.’”Holmes v Holmes, 281 Mich App 575, 587-
588; 760 NW2d 300 (2008), quoting Czymbor’s Timber, Inc v Saginaw, 269 Mich App 551, 556;
711 NW2d 442 (2006), aff’d 478 Mich 348 (2007).[2]
HUSBANDS PARENTING TIME APPEAL.
Defendant next argues that the trial court erred by failing to conduct a best-interest
analysis before making a determination regarding parenting time. We disagree.[2]
“‘Orders concerning parenting time must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue.’” Shade v Wright, 291 Mich
App 17, 20-21; 805 NW2d 1 (2010), quoting Pickering v Pickering, 268 Mich App 1, 5; 706
NW2d 835 (2005). [2]
MCL 722.27a governs a trial court’s determination of parenting time and states that
“[p]arenting time shall be granted in accordance with the best interests of the child.” MCL
722.27a(1). When making parenting-time decisions, the court need not address every bestinterest
factor, but must at least make findings with respect to the contested issues.
Shade, 291 Mich App at 31-32. [2]
The trial court's reliance on the FOC's report; [1]
The parties have continued to struggle over the issue of parenting time in post-judgment
proceedings, some of which were filed after this Court granted defendant’s delayed application
for leave to appeal. In light of the parties’ disagreement over parenting time, the trial court was
required to consider the best interests of the children. Defendant claims the court failed to do so.
However, the trial court explicitly relied on the FOC report and adopted its recommendations.
When a trial court relies on FOC reports in making a determination, the FOC findings are
examined to determine whether they comport with the best-interest analysis mandate of MCL
722.23 and MCL 722.27a(1). In re Stevens, 86 Mich App 258, 263; 273 NW2d 490 (1978).[2]
Defendant also argues that the court should have examined the parenting-time factors in
MCL 722.27a(6) before making a determination with respect to parenting time. However, that
statute states only that “[t]he court
may consider the following factors when determining the
frequency, duration, and type of parenting time to be granted.” MCL 722.27a(6) (emphasis
added). Because the trial court had separately considered each of the best-interest factors of
MCL 722.23, and had already made clear on the record that it was concerned with the minor
children’s best interests in determining parenting time, it was unnecessary for the court to
additionally make findings under the parenting-time factors of MCL 722.27a(6). See
Shade, 291 Mich App at 32. [2]
In re Stevens; Best interest factor (i); [1]
Bowers v. Bowers; Weighing the evidence and making credibility determinations; [1]
Shann v. Shann; MCL 722.27a(6); [1]
Division of the marital assets; Berger v. Berger; Reed v. Reed; Sparks v. Sparks; Washington v. Washington; [1]
A judgment of divorce must include a determination of the parties’ property rights. MCR
3.211(B)(3). The property and liabilities of the parties need not be equally divided; they need
only be equitably divided.
Washington v Washington, 283 Mich App 667, 673; 770 NW2d 908
(2009). However, any significant departure from congruence must be clearly explained.
Berger,
277 Mich App at 717. When making its determination regarding division of the marital
property, the trial court should consider:
(1) the duration of the marriage, (2) the contributions of the parties to the
marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life
situation of the parties, (6) the necessities and circumstances of the parties, (7) the
parties’ earning abilities, (8) the parties’ past relations and conduct, and (9)
general principles of equity. [
Id.] [2]
Pension benefits; MCL 552.18(1); [1]
Valuation and distribution of the marital homes; [1]
MCR 3.211(B)(3); The trial court's obligation to put a valuation on the property being awarded; Olson v. Olson; [1]
Division of the retirement accounts; McNamara v. Horner; Custody; [1]
Whether the trial court considered the children's "established custodial environment" ; [1]
Whether the trial court defined the applicable burden of proof; [1]
Whether the trial court considered the statutory "best interest" factors; MCL 722.23; Taking contrary positions in the trial and appellate courts; Waiver; Holmes v. Holmes [1]
Court: Michigan Court of Appeals (Unpublished)
Case Name: Edwards v. Edwards
e-Journal Number: 53418
Judge(s): Per Curiam – Jansen, Borrello, and Beckering [1]
Oakland Circuit Court,No. 308393, LC No. 2010-771759-DM [2]
OAKLAND FAMILY COURT JUDGE RULED AGAINST THE GREAT WEIGHT OF THE EVIDENCE
The court held that while the trial court's ruling went against the great weight of the evidence in adopting the FOC's recommendations on best interest factors (f), (g), and (h), the trial court's decision to grant the defendant-husband parenting time every other weekend, every day from after school until 4:30 PM, and on alternating holidays was not an abuse of discretion. [1]
DIVORCE COURT MUST GIVE CLARITY AS TO THE VALUE OF REAL PROPERTY
However, in light of the lack of clarity as to the value of the marital homes and the amount of equity each party contributed to them, the court concluded that remand was necessary to properly determine the value of the homes and to distribute them equitably. [1]
A BEST INTEREST ANALYSIS REQUIREMENT CAN BE ACHIEVED BY REVIEW OF A FRIEND OF THE COURT REPORT
Defendant argued on appeal, inter alia, that the trial court erred by failing to conduct a best interests analysis before making a determination as to parenting time. [1]
The court disagreed, noting that the trial court explicitly relied on the FOC report and adopted its recommendations, and the FOC "thoroughly examined" each of the factors in MCL 722.23. While the FOC found that factor (f) did not favor either party, the court concluded that the evidence showed this factor favored the plaintiff-wife. The court reached the same conclusion as to factor (g). While the FOC found that factor (h) favored plaintiff, the court determined that this factor favored the parties equally. Five of the factors favored plaintiff, four favored both parties equally, two were inapplicable, one favored neither party, and none favored defendant.
PROPERTY VALUATION
He also argued that the trial court did not divide the marital assets in a roughly "congruent manner," specifically challenging the division of the parties' retirement accounts and homes. [1]
THE TRIAL COURT CANNOT SAY REAL PROPERTY UNDER WATER SO NO VALUE.
The court concluded that it could not review the trial court's factual findings as to the value of the marital homes because the trial court declined to make any, and there was insufficient evidence to support a determination. The trial court never determined the value of either house, stating only that "[t]here is no equity in either home as both homes are underwater."
THE DIVORCE TRIAL COURT WAS IN ERROR
The court held that it was error for the trial court to decline to make such findings. MCR 3.211(B)(3) requires that "[a] judgment of divorce . . . include . . . a determination of the property rights of the parties[.]"[1]
A TRIAL COURT WAS IN CLEAR ERROR BY NOT GIVING A DOLLAR AMOUNT ON REAL PROPERTY?
A trial court "is obligated to put a valuation on the property being awarded, and it is clear error for the court to fail to place a value on a disputed portion of marital property." [1]
COURT SAID RETIREMENT ACCOUNTS OFFSET EACH OTHER.
However, the court had no similar concerns as to the parties' retirement accounts and defendant's pension. The trial court allowed each party to keep his or her own retirement accounts, and permitted defendant to keep his pension. While it was true that plaintiff's two retirement accounts contained a higher balance than defendant's 401k, he will also have his pension - an asset that plaintiff never sought to invade - to offset this imbalance. Although the exact value of his pension was not offered in evidence, the court could not say that the trial court erred by determining that the award of plaintiff's two retirement accounts to her would be roughly congruent to the award of defendant's 401k plus his pension to defendant. Affirmed in part, reversed in part, and remanded. [1]
[source]
[1]
e-Journal Number: 53418
[2]
S T A T E O F M I C H I G A N ,C O U R T O F A P P E A L S
MEGHAN KATHLEEN EDWARDS, Plaintiff-Appellee,UNPUBLISHED
December 6, 2012,v No. 308393,Oakland Circuit Court,
BRIANT JAMES EDWARDS , LC No. 2010-771759-DM,Defendant-Appellant.
[trb]
Comments of Terry Bankert to include uncited BLOCK HEADLINES
Sphere: Related Content
-----
By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970, The purpose here is media consult counsel before reliance.
-----
Presented here for media to include WFLT 1420 8:45 am radio broadcast on 01/08/13. Also discussed on this program is my unbundeling of services to economically help those that want a do it yourself divorce [ initial consultation free], Chapter 7 Bankruptcy initial payment $200. Congratulations to Larry Watkins the current Superintendent of Flint Community Schools, and comments on the vacancy on the Mott College Board of Trustees, you should apply.
Issues:
Divorce; Parenting time; Shade v. Wright; MCL 722.27a; [1]
HUSBAND APPEALED AN OAKLAND COUNTY FAMILY COURT DECISION
Defendant first argues that the trial court erred by failing to consider the established
custodial environment of the children, failing to define the burden of proof, and failing to make
findings under the best-interest factors of MCL 722.23. [2]
HUSBAND CHANGED IS POSITION ON APPEAL, BAD IDEA.
A party need not take exception to a finding of fact or ultimate decision by the trial court
in order to preserve the issue on appeal. MCR 2.517(A)(7). However, “‘[a] party may not take a
position in the trial court and subsequently seek redress in an appellate court that is based on a
position contrary to that taken in the trial court.’”Holmes v Holmes, 281 Mich App 575, 587-
588; 760 NW2d 300 (2008), quoting Czymbor’s Timber, Inc v Saginaw, 269 Mich App 551, 556;
711 NW2d 442 (2006), aff’d 478 Mich 348 (2007).[2]
HUSBANDS PARENTING TIME APPEAL.
Defendant next argues that the trial court erred by failing to conduct a best-interest
analysis before making a determination regarding parenting time. We disagree.[2]
“‘Orders concerning parenting time must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue.’” Shade v Wright, 291 Mich
App 17, 20-21; 805 NW2d 1 (2010), quoting Pickering v Pickering, 268 Mich App 1, 5; 706
NW2d 835 (2005). [2]
MCL 722.27a governs a trial court’s determination of parenting time and states that
“[p]arenting time shall be granted in accordance with the best interests of the child.” MCL
722.27a(1). When making parenting-time decisions, the court need not address every bestinterest
factor, but must at least make findings with respect to the contested issues.
Shade, 291 Mich App at 31-32. [2]
The trial court's reliance on the FOC's report; [1]
The parties have continued to struggle over the issue of parenting time in post-judgment
proceedings, some of which were filed after this Court granted defendant’s delayed application
for leave to appeal. In light of the parties’ disagreement over parenting time, the trial court was
required to consider the best interests of the children. Defendant claims the court failed to do so.
However, the trial court explicitly relied on the FOC report and adopted its recommendations.
When a trial court relies on FOC reports in making a determination, the FOC findings are
examined to determine whether they comport with the best-interest analysis mandate of MCL
722.23 and MCL 722.27a(1). In re Stevens, 86 Mich App 258, 263; 273 NW2d 490 (1978).[2]
Defendant also argues that the court should have examined the parenting-time factors in
MCL 722.27a(6) before making a determination with respect to parenting time. However, that
statute states only that “[t]he court
may consider the following factors when determining the
frequency, duration, and type of parenting time to be granted.” MCL 722.27a(6) (emphasis
added). Because the trial court had separately considered each of the best-interest factors of
MCL 722.23, and had already made clear on the record that it was concerned with the minor
children’s best interests in determining parenting time, it was unnecessary for the court to
additionally make findings under the parenting-time factors of MCL 722.27a(6). See
Shade, 291 Mich App at 32. [2]
In re Stevens; Best interest factor (i); [1]
Bowers v. Bowers; Weighing the evidence and making credibility determinations; [1]
Shann v. Shann; MCL 722.27a(6); [1]
Division of the marital assets; Berger v. Berger; Reed v. Reed; Sparks v. Sparks; Washington v. Washington; [1]
A judgment of divorce must include a determination of the parties’ property rights. MCR
3.211(B)(3). The property and liabilities of the parties need not be equally divided; they need
only be equitably divided.
Washington v Washington, 283 Mich App 667, 673; 770 NW2d 908
(2009). However, any significant departure from congruence must be clearly explained.
Berger,
277 Mich App at 717. When making its determination regarding division of the marital
property, the trial court should consider:
(1) the duration of the marriage, (2) the contributions of the parties to the
marital estate, (3) the age of the parties, (4) the health of the parties, (5) the life
situation of the parties, (6) the necessities and circumstances of the parties, (7) the
parties’ earning abilities, (8) the parties’ past relations and conduct, and (9)
general principles of equity. [
Id.] [2]
Pension benefits; MCL 552.18(1); [1]
Valuation and distribution of the marital homes; [1]
MCR 3.211(B)(3); The trial court's obligation to put a valuation on the property being awarded; Olson v. Olson; [1]
Division of the retirement accounts; McNamara v. Horner; Custody; [1]
Whether the trial court considered the children's "established custodial environment" ; [1]
Whether the trial court defined the applicable burden of proof; [1]
Whether the trial court considered the statutory "best interest" factors; MCL 722.23; Taking contrary positions in the trial and appellate courts; Waiver; Holmes v. Holmes [1]
Court: Michigan Court of Appeals (Unpublished)
Case Name: Edwards v. Edwards
e-Journal Number: 53418
Judge(s): Per Curiam – Jansen, Borrello, and Beckering [1]
Oakland Circuit Court,No. 308393, LC No. 2010-771759-DM [2]
OAKLAND FAMILY COURT JUDGE RULED AGAINST THE GREAT WEIGHT OF THE EVIDENCE
The court held that while the trial court's ruling went against the great weight of the evidence in adopting the FOC's recommendations on best interest factors (f), (g), and (h), the trial court's decision to grant the defendant-husband parenting time every other weekend, every day from after school until 4:30 PM, and on alternating holidays was not an abuse of discretion. [1]
DIVORCE COURT MUST GIVE CLARITY AS TO THE VALUE OF REAL PROPERTY
However, in light of the lack of clarity as to the value of the marital homes and the amount of equity each party contributed to them, the court concluded that remand was necessary to properly determine the value of the homes and to distribute them equitably. [1]
A BEST INTEREST ANALYSIS REQUIREMENT CAN BE ACHIEVED BY REVIEW OF A FRIEND OF THE COURT REPORT
Defendant argued on appeal, inter alia, that the trial court erred by failing to conduct a best interests analysis before making a determination as to parenting time. [1]
The court disagreed, noting that the trial court explicitly relied on the FOC report and adopted its recommendations, and the FOC "thoroughly examined" each of the factors in MCL 722.23. While the FOC found that factor (f) did not favor either party, the court concluded that the evidence showed this factor favored the plaintiff-wife. The court reached the same conclusion as to factor (g). While the FOC found that factor (h) favored plaintiff, the court determined that this factor favored the parties equally. Five of the factors favored plaintiff, four favored both parties equally, two were inapplicable, one favored neither party, and none favored defendant.
PROPERTY VALUATION
He also argued that the trial court did not divide the marital assets in a roughly "congruent manner," specifically challenging the division of the parties' retirement accounts and homes. [1]
THE TRIAL COURT CANNOT SAY REAL PROPERTY UNDER WATER SO NO VALUE.
The court concluded that it could not review the trial court's factual findings as to the value of the marital homes because the trial court declined to make any, and there was insufficient evidence to support a determination. The trial court never determined the value of either house, stating only that "[t]here is no equity in either home as both homes are underwater."
THE DIVORCE TRIAL COURT WAS IN ERROR
The court held that it was error for the trial court to decline to make such findings. MCR 3.211(B)(3) requires that "[a] judgment of divorce . . . include . . . a determination of the property rights of the parties[.]"[1]
A TRIAL COURT WAS IN CLEAR ERROR BY NOT GIVING A DOLLAR AMOUNT ON REAL PROPERTY?
A trial court "is obligated to put a valuation on the property being awarded, and it is clear error for the court to fail to place a value on a disputed portion of marital property." [1]
COURT SAID RETIREMENT ACCOUNTS OFFSET EACH OTHER.
However, the court had no similar concerns as to the parties' retirement accounts and defendant's pension. The trial court allowed each party to keep his or her own retirement accounts, and permitted defendant to keep his pension. While it was true that plaintiff's two retirement accounts contained a higher balance than defendant's 401k, he will also have his pension - an asset that plaintiff never sought to invade - to offset this imbalance. Although the exact value of his pension was not offered in evidence, the court could not say that the trial court erred by determining that the award of plaintiff's two retirement accounts to her would be roughly congruent to the award of defendant's 401k plus his pension to defendant. Affirmed in part, reversed in part, and remanded. [1]
[source]
[1]
e-Journal Number: 53418
[2]
S T A T E O F M I C H I G A N ,C O U R T O F A P P E A L S
MEGHAN KATHLEEN EDWARDS, Plaintiff-Appellee,UNPUBLISHED
December 6, 2012,v No. 308393,Oakland Circuit Court,
BRIANT JAMES EDWARDS , LC No. 2010-771759-DM,Defendant-Appellant.
[trb]
Comments of Terry Bankert to include uncited BLOCK HEADLINES
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