Thursday, June 30, 2011

DAD'S BUSINESS FAILING! WHAT SHOULD HIS CHILD SUPPORT BE WHEN HE DECIDES HOW LOW TO LOWER HIS INCOME?


Flint Divorce Attorney Terry Bankert discusses problems of establishing a business owners income for child support in these hard times. Flint Divorce lawyer Terry Bankert can be contacted at 810-235-1970. FLINT Matrimonial Counsel Bankert also handles child support, parenting time and child custody.



Issues discussed in this case:

Child support;



The 2004 Michigan Child Support Formula Manual (MCSFM);



Stallworth v. Stallworth; Sparks v. Sparks;



Whether the defendant-father's reduction in income was "voluntary";



Whether the trial court properly imputed an income to defendant;



Rohloff v. Rohloff; Borowsky v. Borowsky; MCSFM 2.10(A) & (E);



Ascertaining an individual's ability and likelihood of earning imputed income where the individual is a business owner;



MCSFM 2.11(A) & (D)

SOURCE:Court: Michigan Court of Appeals (Published June 28, 2011 9:05 a.m.), Case Name: WIFE v. HUSBAND, e-Journal Number: 49154, Judge(s): Wilder, Servitto, and Shapiro No. 292536, Genesee Circuit Court Family Division, removed to Judge Fullerton, LC No. 03-250996-DM. Comments of Terry Bankert in CAPS or cited [trb].THE CASE HAS BEEN MODIFIED BY ORDER OF PRESENTATION

MICHIGAN COURT OF APPEALS (MA). HUSBAND VOLUNTARILY REDUCED INCOME BUT IMPUTED IT TOO HIGH.

While the trial court did not clearly err in finding that the defendant-father voluntarily reduced his income, the court held that the trial court abused its discretion by imputing an income of $95,000 to him.



DID YOU KNOW- An abuse of discretion occurs when a court selects an outcome that is not within the range of reasonable and principled outcomes. Borowsky v Borowsky, 273 Mich App 666, 672; 733 NW2d 71 (2007).

(MA) TELLS LOCAL COURT TO DO IT AGAIN

Thus, the court vacated the trial court's order modifying his child-support obligation and remanded the case for further proceedings as to his motion to reduce his child-support obligation.

THERE WAS AN EVIDENTIARY HEARING

After an evidentiary hearing, the trial court adopted a FOC hearing referee's recommendation.



DID YOU KNOW .In determining the appropriate amount of child support, “a trial court must presumptively

follow the Michigan Child Support Formula (MCSF).” Stallworth v Stallworth, 275 Mich App

282, 284; 738 NW2d 264 (2007).

HUSBAND WAS PRESIDENT OF A COMPANY

Defendant testified that he is an engineer and president of a company (X). He and his brother purchased (X) from their father. (X) had gross receipts in 2006 of $1,198,860 and paid defendant $123,209 in compensation plus $11,700 for reimbursement for the prior year's tax liability. (X) had gross receipts in 2007 of $608,226 and paid him $67,591 in compensation plus $12,500 as reimbursement for his tax liability.

HUSBAND HAD A SIDE JOB

He also earns $12,000 a year as a (Y).

COMPANY HURT BY THE ECONOMY

He testified that (X's) income declined significantly in 2008 due to the slumping economy. As of 6/08, about 20 employees had left or been laid off, leaving only 6 employees. (X) took out a $50,000 line of credit in order to "stay afloat" and paid salaries with loan funds. Defendant testified that he is personally liable on the loan. When over half of the line of credit was expended, defendant, his brother, and his father elected to reduce defendant's income to $250 a week and lay off more employees.

HUSBAND REDUCED INCOME FROM HIS COMPANY TO SAVE IT

The court concluded that the record showed "defendant's decision to reduce his income to $250 per week was a voluntary and strategic decision to keep (X) afloat and to maintain health insurance for him and his children until the economy could turn around."

FOC SAID THIS DISCRETIONARY DECISION WAS TOO LOW

The FOC determined that he took a "‘salary hit' way beyond that which is believed to be reasonable." He was (X) lowest paid employee.



DID YOU KNOW-“A trial court has the discretion to impute income when a parent voluntarily

reduces or eliminates income or when it finds that the parent has a voluntar[y] unexercised

ability to earn.” Stallworth, 275 Mich App at 286-287, citing 2004 MCSFM 2.10(A).



THERE WAS NO EVALUATION OF IMPUTATION FACTORS

However, "neither the FOC nor the trial court ever evaluated the factors set forth in the MCSFM for the imputation of income.



DID YOU KNOW-The MCSFM sets forth a number of equitable criteria that must be considered when

determining whether to impute income:

(1) Prior employment experience;

(2) Education level;

(3) Physical and mental disabilities;

(4) The presence of parties’ children in the individual’s home and its impact on

the earnings;

(5) Availability of employment in the local geographical area;

(6) The prevailing wage rates in the local geographical area;

(7) Special skills and training; or

(8) Whether there is any evidence that the individual in question is able to earn

the imputed income. [2004 MCSFM 2.10(E); see also Stallworth, 275 Mich

App at 286.]

The 2004 MCSFM also contemplates the difficulties in ascertaining an individual’s ability and

likelihood of earning imputed income where the individual is a business owner:

There are special difficulties in determining the income of certain individuals . . .

persons who have significant control over the form and manner of their own

compensation may be able to arrange that compensation so as to be able to

minimize the amount visible to friends of the court and others. [2004 MCSFM

2.11(A).]

TRIAL COURT DID NOT DETERMINE ACTUAL ABILITY

More importantly, the trial court failed to assess whether defendant possessed an actual ability and likelihood of earning the $95,000 imputed income." That (X) could afford to pay him an average salary of $95,000 in 2006 and 2007 did not mean that it could continue to pay him that amount in the existing economic climate.

COMPANY HIT HARD BY RECESSION

The evidence clearly showed that (X's) revenues "precipitously dropped" 50% from 2006 to 2007. By 2008 it had lost 70% of its employees and had to take a line of credit to pay salaries. "Thus, there was no evidence to suggest that defendant could remain at (X) and earn the same amount of income that he earned in 2006 and 2007." There was also no evidence that he could gain outside employment earning $95,000. "

THE LOCAL COURT DID ABUSED ITS DISCRETION

Because the trial court failed to consider the enumerated factors in 2004 MCSFM 2.10(E), including whether defendant possessed an actual ability and likelihood of earning the $95,000 imputed income," the court concluded that the trial court abused its discretion in adopting the FOC's recommendation to impute that income to him.





THE MICHIGAN COURT OF APPEALS TOLD THE LOCAL COURT TO DO IT OVER

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Sunday, June 19, 2011

LAW SCHOOL FAMILY LAW PROFESSORS , WHAT THEY THINK IS IMPORTANT!

Flint Family Law,Divorce Attorney Thoughts on the 4th Annual Midwest Family Law Consortium: Family Law in the 21st Century hosted by the Michigan State College of Law June 17-17 2011


Reflections of Flint Divorce Attorney Terry Bankert 810-235-1970. http://www.dumpmyspouse.com/

 or http://www.attorneybankert.com/

 Yes I am SEO here, you got me. Oh, I forgot, http://www.nojokebeingbroke.com/


FAMILY LAW IN THE 21ST CENTURY, divorce, child support, parenting time, custody and stuff.


I recieved a card promoting this event but placed it on the corner of my desk that I keep for wishful thinking. I had a scheduled hearing in conflict with the June 16-17 date of the event. Located in Lansing on the campus of Michigan State University College of Law I was interested.

Mid week my conflict left and I reached out to go hastely sending in my lonely $100 bucks.


The program talked of a reception and dinner the night before, we made inquiry and were given the location and time. This I attended.


The promo stated “ The first decade of the 21st century has been an exciting time for Family Law Scholars, Teachers and Practitioners.” I believe I was the only current practitioner.( lab rat). The Professors I am sure had extensive practice expierence before assending the Ivry Tower.


Justice Marilyn Kelly was the keynote speaker at lunch on Friday the program day. How could I not go, the holy grail of Michigan Family Law intelligence was speaking. I am moitivated to protect the fatherhood rights of putative fathers. Her presentation was motivating.


But back to the Thursday reception. We dined at Michells Fish Market in a location called East Gate(?). I thought I was in a new commercial development in Atlanta Ga. It sure did not look like Flint to me.( Yest it was Lansing).


What I was at was the preconference reception for the presenters, I think I basically crashed it. I am told I did not. But  I think the are just being polite.


The program facilitators were very gracious and made me feel at home and welcome. I had the time of my life. I was able to engage in a level of conversation that is usually fleeting for me. In the end though they were the scientists and I was the lab rat. Scholarly law professors toying with  a court house practice  family law lawyer from violence & depression ridden Flint MI. I thank everyone for the great time.


The last time I was in the MSU Law Library was when I debated Profesor Bitinski on the use of force and child protective proceeding. I took the side of parents being able to beat disobedience out of the little miscreants. It was sponsored by the Federalist Society. I was in unfriendly territory but had my usual good time.Did I tell you I am from Flint MI the most violent city in America and was a 5th Army Drill Sergeant! Bring it on. After all life is to short not to.


The dinner was great I ordered clam chowder, steak and key lime pie. I prattled on so much, I am a talkative lab rat, that I finished only ½ of the best steak I will have this year. Just where were my priorities.


Interesting discussion on the rights of putative fathers. Combining this with the presentation of Justice Kelly my awarness of this travisty of justice in Family Law was enhanced. The Consortium, a room full of law school professors, went well. The presentations were broken up into panels.


WELCOME

We were welcomed by Melanie B. Jacobs Michigan State University College of Law, Cynthia Lee Starnes Michigan State College of Law, and Dean Joan H. Howarth Michigan State College of Law.


PANEL NUMBER ONE “ ISSUES IN REPRODUCTION.”

(1)First up was Jamie R Abrahams Hofstra University Law School of Law Presenting “ Distorted and Diminished Tort remedies for birthing mothers."

(2) Mary Patricia Byrn William Michell College of Law “ Why Banning anonymous Gamete (sperm & egg) donation is a bad idea and probably unconstitutional”

(3) Deborah L. Forman Whittier Law School “ Embryo Disposition and Divorce: Why Clinic consent forms are not the answer.”

(4) Maya Manian University of San Francisco School of Law.” Parents, Minors, and Minor Parents: A Family Law Perspective on Adolescents Reproductive Rights.”

The above panel was moderated by Helene S. Shapo Northwestern University School of Law.


PANEL NUMBER TWO “ ISSUES IN INTERNATIONAL AND COMPARATIVE LAW.”


(5) Ann Laquer Estin University of Iowa College of Law “ International Issues in Child Welfare Cases”.


(6) Richard F. Storrow “ The City University of New York School of Law.” The Phantom Children of the Republic: Surrogacy, Globialization and the New Illegitimacy.


(7) Shani M. King Universaity of Florida Levin College of Law “ The right to counsel for unaccompanied minors”


This panel was moderated by Leslie J.Harris University of Oregon School of Law.


(8)KEYNOTE ADDRESS DURING LUNCH BY JUSTICE MARILYN KELLY


PANEL NUMBER THREE “ ISSUES IN PATERNITY AND PARENTHOOD”


(9) Cynthia Godsoe Brooklyn Law School “ Parsing Parenthood.”


(10) Jeffrey A. Parnes The John Marshall Law School “ Paternity After Lehr and Michael H.”


(11) Dara E Purvis, University of Illinois College of Law “ Same-Sex intended Parents and the Problem of perspective.”


This panel moderated by Maya Manian, University of San Francisco School of Law.”


PANEL NUMBER FOUR “ ISSUES IN MARRAIGE AND DIVORCE”


(12) Jessica Knouse University of Toledo College of Law “ Civil marraige: threat to democracy”


(13) Mark Strasser Capital University Law School “ Child Welfare and promotion of marraige.”


This Panel moderated by Nina W. Tarr, University of Illinois College of Law”



PANEL NUMBER FIVE” FAMILY LAW IN PERSPECTIVE”

(14) June Carbone University of Missouri- Kansas City School of Law “ The emergence of Family as a marker of class.”



(15) Barbara Glesner Fines University of Misouri Kansas City School of Law “ How Family Law practice has changed in the past 50 years.”



(16) Leslie J Harris University of Oregon School of Law “ Implications of the fragile families studies for the Law of Family Formation and child support.



(17) Charles Reid University of St. Thomas ( Minnesota) “ Lucifers Children; A story of Free Love, Religion, Politics and Law.



This panel was moderatede by Mary Jean Dolan The John Marshall Law School.





Now you will note there were 17 presenters and five moderators, plus 3 organizers from Michigan State plus Justice Kelly and one practicioner (me) additionally counting the one student who came in mid afternoon this number is 28. The exact number in attendance. As a practitioner I paid $100, a bargain by any measure. ( possibly the only one who gladly paid anything). No papers were distributed.I will not post my full notes because I was not as attentive during all presentations.


Mabey next year I will offer a paper . Titled? “ HEY...Here is what you should really teach us about Family Law in Law School, just what were you thinking!”


JUST FOR THE RECORD I AM AVAILABLE TO GUEST LECTURE. I work for steak. I can drive buying my own gas and return to my own housing if interested the following schools may contact me for this protein compensated service; Michigan State College of Law , Thomas Cooley Law School( Alma Mater) , University of Michigan Law School. Jealous your school is not on my list? Give me a call.......... Just saying. 810-235-1970.



TERRY BANKERT

810-235-1970

Link to this site.
http://goodmorningflint.blogspot.com/2011/06/law-school-family-law-professors-what.html

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