CHILD SUPPORT MODIFICATION. ATTORNEY BANKERT

MODIFICATION OF CHILD SUPPORT

In this economically hard time parents may need to modify their child support. Sometimes the original order called for no child support by agreement of the parties. 

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“ While it is true that a court can generally only modify orders for child support upon a showing of a change in circumstances justifying the modification, see MCL 552.17; Aussie v Aussie, 182 Mich App 454, 463; 452 NW2d 859 (1990), “[w]hen a court order does not provide for child support, such maintenance may later be provided by the court and does not depend upon a change of circumstances,” Johns v Johns, 178 Mich App 101, 106; 443 NW2d 446 (1989).”

“When  properly motioned for a change in child support  the Court may deny the motion. The question then is  has “...trial court correctly decided that it should not modify its previous child support order and that the parties should be held to their agreement that defendant not pay child support. MCL 552.605(3) states that a court is not prohibited “from entering a child support order that is agreed to by the parties and that deviates from the child support formula, if the requirements of subsection (2) are met.” (Emphasis added.)”

“ MCL 552.605(2) states: (2) Except as otherwise provided in this section, the court shall order child support in an amount determined by application of the child support formula developed by the state friend of the court bureau as required in section 19 of the friend of the court act, MCL 552.519.”

“ The court may enter an order that deviates from the formula if the court determines from the facts of the case that application of the child support formula would be unjust or inappropriate and sets forth in writing or on the record all of the following:

 (a) The child support amount determined by application of the child support formula.

 (b) How the child support order deviates from the child support formula. 

(c) The value of property or other support awarded instead of the payment of child support, if applicable.

 (d) The reasons why application of the child support formula would be unjust or inappropriate in the case.”

“In Burba v Burba, 461 Mich 637, 644; 610 NW2d 873 (2000), our Supreme Court held that “the criteria [in MCL 552.605(2)(a)-(d)] for deviating from the formula are mandatory.” 4 The Burba Court emphasized that “[t]he importance the Legislature attached to courts carefully articulating these factors when deviating from the formula cannot be underestimated, for the Legislature prescribed their use when courts deviate from the formula in no less than eight different sections of the Michigan Compiled Laws.” Id. “To impress upon the courts the gravity of deviating from the formula, the Legislature has required them to meticulously set forth these factors when deviating.” Id. at 645-646. “

“Thus, as required by MCL 552.605(2), when deviating from the formula, the trial court fulfills its statutory duty only when the court has articulated its rationale in accordance with subsection 2(a) through (d).” Peterson, 272 Mich App at 517. “ [Source and Unpoublished Michigan Court of Appeals,11/14/19, case e-journal, #71700 Ncheugium v Tegadjourfrom Saginaw Circuit Court.]

5-1970

If you have additional questions about Divorce, child support or other Family Court Issues Please call Terry R. Bankert, Flint and Genesee County Attorney, 810-235-1970

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CHANGING CUSTODIAL ENVIRONMENT.

MAY A COURT AMEND A CUSTODY OR PARENTING TIME ORDER?

A trial court may modify or amend its previous judgments or orders, including those addressing custody or parenting-time issues, “for proper cause shown or because of a change of circumstances.” MCL 722.27(1)(c). Before doing so, a trial court “must first consider whether the proposed change would modify the established custodial environment.” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). “

WHAT IS THE ESTABLISHED CUSTODIAL ENVIRONMENT.

“The established custodial environment is the environment in which over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” Id. (quotation marks omitted), citing MCL 722.27(1)(c). “
EXAMPLE OF WHEN THIS ENVIRONMENT NOT CHANGED.

“Whereas minor modifications that leave a party’s parenting time essentially intact do not change a child’s established custodial environment, significant changes do.” Lieberman, 319 Mich App at 89-90 (cleaned up). If parenting-time adjustments “will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed.” Pierron, 486 Mich at 86. “
EVIDENCE NEED TO CHANGE CUSTODIAL ENVIRONMENT

“The trial court “shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c). “

“It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents.” MCL 722.27a(1).”

“Whereas the primary concern in child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents.” Shade v Wright, 291 Mich App 17, 28-29; 805 NW2d 1 (2010).” (Source, e-journal #70586, Michigan Court of Appeals unpublished 5/21/19, no.346025.)
Presented here by Flint Divorce Lawyer Terry Bankert Attorney practicing Family Law, Divorce, Child Custody, Parenting time, Support and other Family issues. 1-(810- 235-1970, www.attorneybankert.com No charge for initial appointment.

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#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG! by Flint Divorce Attorney Terry Bankert 810-235-1970

#TERRY TALKS “Ideas worth sharing “

#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group WWW.terrytalks.com

DATE: 10/20/13

TIME:12:00 PM

Here the “Plaintiff alleges that the trial court erred by allowing defendant, the guardian, to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation. We  

(Michigan Court of Appeals) agree

see: www.terrytalks.com

Issues:

1. Motion for grandparent visitation (MCL 722.27b);

2. Whether the trial court properly allowed the intervening defendant (the guardian) to utilize the "fit parent presumption" of MCL 722.27b(4)(b) to deny grandparent visitation; Whitman v. City of Burton; In re Receivership of 11910 S. Francis Rd.; Johnson v. Recca; People v. Peltola; In re Hurd-Marvin Drain; Michigan Basic Prop. Ins. Ass'n v. Office of Fin. & Ins. Regulation; Maple Grove Twp. v. Misteguay Creek Intercounty Drain Bd.; Miller-Davis Co. v. Ahrens Constr., Inc.;

3. MCL 722.27b(1)(e);

4. Whether the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b); MCL 700.5215;In re Beck; University Ctr., Inc. v. Ann Arbor Pub. Schs.; Hunter v. Hunter

COURTS INVOLVED

Court: Michigan Court of Appeals (Published)

FOR PUBLICATION,September 26, 2013 ,9:00 a.m. [2]

Case Name: Book-Gilbert v. Greenleaf ,No. 308755 ,[1]

PRINCIPAL SOURCE e-Journal Number: 55461

MICHIGAN COURT OF APPEALS Judge(s): Per Curiam – Fort Hood, Fitzgerald, and Ronayne Krause

THE LOCAL,LOWER,TRIAL  COURT  ERRED IN ALLOWING INTERVENING  GUARDIAN  TO STEP INTO A  FIT PARENTS  PRESUMPTION  WHEN DECIDING ON GRANDPARENT VISITATION.

The court held that the trial court erred by allowing intervening defendant-Tyndall (the guardian and relative of the minor child's deceased mother) to utilize the fit parent presumption of MCL 722.27b(4)(b) to deny grandparent visitation to intervening plaintiff-McCallister and by allowing a guardian to "step into the shoes" of a fit parent for purposes of MCL 722.27b(4)(b)."[1]

MICHIGAN COURT OF APPEALS REVERSES LOWER COURT/TRIAL COURT  ORDER  AND DENY’S THE GRANDPARENT MOTION FOR VISITATION

Thus, the court reversed the family court order [...AND...] denying plaintiff's (the minor child's paternal grandmother) motion for grandparent visitation, and remanded. "[1]

THE TRIAL COURT RELIED ON MCL 722.27b(4)9b)

The trial court held that MCL 722.27b(4)(b) provided that deference was to be given to the decision of a fit parent to deny grandparenting time, and it was presumed that the denial of parenting time "does not create a substantial risk of harm to the child's mental, physical, or emotional health.""[1]

THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT

It acknowledged that defendant was not a parent, but a guardian. Nonetheless, it held that defendant had the right to make decisions as a fit parent, the right to deny grandparenting time, and plaintiff failed to overcome the presumption."[1]

THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW

The court held that the trial court's holding was contrary to the plain language of MCL 722.27b(4)(b), which grants "fit parents" a presumption as to the denial of grandparenting time. The Legislature could have afforded a presumption to "custodians" or "guardians" of a grandchild, but did not include such language. "[1]

GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.

The court cannot read into a statute what the Legislature did not include, and permitting guardians or custodians to derive the benefit of the fit parent presumption would require it to rewrite the statute"[1]

Defendant contended that a guardianship encompasses parental responsibilities, and thus, the trial court appropriately allowed the guardian to "step into the shoes" of the parent for purposes of MCL 722.27b(4)(b).[1]

The court held that despite the definition of guardian found in MCL 700.5215, there was no indication that the definition may be incorporated into the provisions of MCL 722.27b(4)(b).[1]

"The statutes fail to address the same subject matter, and they cannot be read in pari materia." More importantly, the court held that there are distinct differences between a natural parent and a guardian such that it would be inappropriate to read the term guardian into the text of the fit parent presumption of MCL 722.27b(4)(b) in the absence of a legislative provision.[1]

PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT

"Specifically, parents have a fundamental liberty interest in the care, custody, and control of their children.""[1]

"The presumption to a fit parent reflects the elevated status and rights a parent has to a minor child..[1]

" Further, a fit parent has a relationship to the grandparents "such that an informed decision may be made regarding the propriety of grandparent visitation. "[1]

On the contrary, a guardian or custodian of a grandchild may or may not have a relationship with the grandparent, and, in the absence of a relationship, could not make an informed decision regarding the risk of harm to a child during visitation."[1]

SOURCE

[1]

PRINCIPAL SOURCE e-Journal Number: 55461 Mostly the incited text

[2]

STATE OF MICHIGAN  COURT OF APPEALS ,ASHLEE BOOK-GILBERT,  Plaintiff,

andHEATHER MCCALLISTER,  Intervening-Plaintiff-Appellant,  FOR PUBLICATION

September 26, 2013 ,9:00 a.m. ,JERRY RYAN GREENLEAF Defendant,

And ANGELA TYNDALL, Guardian of XXXXX, Minor,  

Intervening-Defendant-Appellee.

[trb]

TERRY BANKERT comments are in BLOCK HEADLINE  or quoted [trb]

_______________________________________________________

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Flint Divorce Attorney reviews decision on Parenting time. property valuation and reliance on Friend of the Court reports. 235-1970 by Flint Divorce Attorney Terry Bankert.

GOOD MORNING FLINT! date 01/08/2013,Divorce, property and parenting time!
-----
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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