BEST INTEREST ANALYSIS

CUSTODY, PARENTING TIME, ATTORNEY FEES AND MORE.
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Issues:
Custody; Established custodial environment; Fletcher v. Fletcher; Foskett v. Foskett; Jack v. Jack; Baker v. Baker; Ireland v. Smith; Best interest factors (b), ©), (d), (e), (f), (g), (j), and (k);
Whether the trial court violated the automatic stay rule in MCR 2.614(A)(1); Bayati v. Bayati; Loyd v. Loyd;
Denial of motion for new trial under MCR 2.611; Gilbert v. DaimlerChrysler Corp.; Trial court’s failure to apply MCL 722.31(4); Fast Air, Inc. v. Knight; Spires v. Bergman;
Whether the trial court deviated from the formula prescribed by the Michigan Child Support Formula when it imputed income to defendant-mother without explaining its deviation pursuant to MCL 552.605(2); Ghidotti v. Barber; Stallworth v. Stallworth;
Attorney fees; Reed v. Reed;
Whether the parenting time awarded to defendant in the divorce judgment was not feasible because she moved from Virginia to Florida after the judgment was entered; Appellate attorney fees and costs
Court: Michigan Court of Appeals (Unpublished), No.276038
Case Name: Rasmussen v. Casamatta
e-Journal Number: 37989
Judge(s): Per Curiam - Donofrio, Sawyer, and Cavanagh
Washtenaw Circuit Court No. 05-000390-DM(12/20/07)

The trial court properly awarded the plaintiff-father sole legal custody and primary physical custody of the parties’ child.
DAD WAS OUT OF STATE
There was evidence to support the trial court’s finding plaintiff actively pursued a relationship with his child, although this was made difficult by his residency in Virginia and conflict with defendant.
NO CUSTODIAL ENVIRONMENT CREATED
The evidence supported a reasonable inference the instability existing during the divorce proceedings precluded either party from establishing a custodial environment with their young child (who was born during the divorce proceedings) that, in at least a psychological sense, was marked by qualities of security, stability, and permanence.
INSTABILITY
The evidence the child was temporarily living with defendant in her daycare provider’s home at the time of trial could only add to the instability of the custodial situation. The evidence did not clearly preponderate against the trial court’s finding there was no established custodial environment with either party. Further, even if the trial court erred in finding an established custodial environment did not exist, the error was harmless.
PREPONDERANCE REALLY CLEAR AND CONVINCING
Notwithstanding the trial court’s statement it could apply a preponderance of the evidence standard, it explained its custody decision was actually supported by clear and convincing evidence. Thus, any error in the trial court’s determination an established custodial environment did not exist was harmless. The court also concluded defendant failed to establish the trial court’s custody decision was an abuse of discretion. Affirmed.
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Defendant MOTHER appeals as of right from a judgment of divorce. Relevant to this appeal,
defendant challenges the trial court’s decision to award plaintiff FATHERS sole legal custody and primary physical custody of the parties’ child, Sophia Casamatta (born June 23, 2005).
Defendant also challenges the trial court’s determination of child support and its decision to award plaintiff attorney fees of $3,000.
Because defendant has not established any basis for relief with respect
to the trial court’s: custody decision, denial of a new trial, decision not to apply MCL 722.31,
determination of child support, and award of attorney fees to plaintiff, we affirm.

On appeal, defendant primarily challenges the trial court’s custody decision.

THE COURT OF APPEALS STATED
In deciding custody disputes, a trial court must first determine whether an established
custodial environment exists. Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000).

Brief, definite, and pertinent findings on contested matters are sufficient, MCR 2.517(A)(2), and
a court is not required to comment on every matter in evidence or every argument made by the
parties, Fletcher, supra at 883; Bowers v Bowers, 198 Mich App 320, 328; 497 NW2d 602
(1993).
CUSTODIAL ENVIRONMENT DID NOT EXIST
Here, while the trial court did not make findings on each criterion in MCL 722.27(1)©),
it stated the statutory criteria and facts material to its determination that an established custodial
environment did not exist.
WHAT IS A CUSTODIAL ENVIRONMENT
The custodial environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.
The age of the child, the
physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered. [MCL 722.27(1)©).]
CUSTODIAL ENVIRONMENT INCLUDES THE PSYCHOLOGICAL SENSE
Under this statute, an established custodial environment is one "in both the physical and
psychological sense in which the relationship between the custodian and the child is marked by
qualities of security, stability and permanence." Baker v Baker, 411 Mich 567, 579-580; 309
NW2d 532 (1981).
ITS HARD FOR AN OUT OF STATE PARENT
But there is evidence to support the trial court’s
finding that plaintiff actively pursued a relationship with his child, although this was made
difficult by his residency in Virginia and conflict with defendant.
INSTABILITY PRELUDES THE ESTABLISHMENT OF A CUSTODIAL ENVIRONMENT
The evidence supports a
reasonable inference that the instability that existed during the divorce proceedings precluded
either party from establishing a custodial environment with their young child that, in at least a
psychological sense, was marked by qualities of security, stability, and permanence. Baker,
supra at 579-580.
PARENT HAD CHILD LIVING WITH ANOTHER
The evidence that the child was temporarily living with defendant in her
daycare provider’s home at the time of trial could only add to the instability of the custodial
situation.
The evidence does not clearly preponderate against the trial court’s finding that there
was no established custodial environment with either party. Foskett, supra at 5.
Furthermore, even if the trial court erred in finding that an established custodial
environment did not exist, the error was harmless.
WHY IS CUSTODIAL ENVIRONMENT IMPORTANT?
The significance of an established custodial
environment is that it governs the standard of proof to be applied to decisions changing a child’s
custody. If an established custodial environment exists, a trial court must apply a clear and
convincing evidence standard, as opposed to a preponderance of the evidence standard, before
changing custody. Baker, supra at 579; see also MCL 722.27(1)©). Here, notwithstanding the
trial court’s statement that it could apply a preponderance of the evidence standard, it explained
that its custody decision was actually supported by clear and convincing evidence. Thus, any
error in the trial court’s determination that an established custodial environment did not exist was
harmless and remand for reevaluation of the custody decision is unnecessary. See Ireland v
Smith, 451 Mich 457, 468-469; 547 NW2d 686 (1996); Fletcher, supra, 447 Mich at 889.
A REVIEW OF APPLICATION OF THE BEST INTEREST FACTORS
With regard to the trial court’s actual custody decision, we review the trial court’s
findings of fact with respect to the best interest factors in MCL 722.23 under the great weight of
the evidence standard and its application of law for clear legal error. Foskett, supra at 4-5. The
court’s ultimate custody decision is reviewed for an abuse of discretion. Id. at 5. The court’s
resolution of the statutory best interest factors need not be given equal weight. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). As this Court stated in Heid v
AAASulewski (After Remand), 209 Mich App 587, 594; 532 NW2d 205 (1995), "[t]he process of
reviewing these wrenching decisions is not, at bottom, a problem of quantitative analysis; our
duty is finally to analyze the quality of the evidence adduced to determine whether a party’s
burden of proof is met."

Defendant challenges the trial court’s findings with respect to best interest factors (b), ©),
(d), (e), (f), (g), (j), and (k) of MCL 722.23. To the extent that defendant argues that the trial
court failed to address particular matters in evidence, we point out that a court is not required to
comment on every matter in evidence or every argument raised by the parties. Fletcher, supra,
447 Mich at 883; Bowers, supra at 328. Additionally, to the extent that defendant relies on her
own testimony to establish error, the record reveals that the trial court found that defendant was not a credible witness, particularly with respect to the disputed issue concerning which party was
the aggressor of domestic violence in the home.
We give deference to the trial court’s resolution
of credibility issues. Fletcher, supra, 229 Mich App at 25; see also MCR 2.613©).
Additionally, there is no support in the record for defendant’s suggestion that the trial court was
biased against her.
A trial court is charged with the responsibility of determining the credibility
of witnesses, and judicial remarks that are critical, disapproving of, or hostile toward parties or
their cases ordinarily do not establish bias. Cain v Dep’t of Corrections, 451 Mich 470, 497 n
30; 548 NW2d 210 (1996). Defendant has not overcome the heavy presumption of judicial
impartially. Id. at 497.
FACTOR B
With respect to factor (b), "[t]he capacity and disposition of the parties involved to give
the child love, affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any," MCL 722.23(b), we disagree with defendant’s claim that the
trial court’s evaluation of this factor is inconsistent with its evaluation of factor (a). Factor (b)
goes beyond existing emotional bonds by requiring the trial court to project a parent’s capacity
and disposition to provide love, affection, and guidance in the future. The trial court reasonably
looked beyond the parties’ past interactions with the child to project their capacity and
disposition to provide for the child’s needs. Its finding that factor (b) favored plaintiff is not
against the great weight of the evidence.
FACTOR C
With respect to factor ©), the evidence that plaintiff, unlike defendant, had a history of
stable employment and income supports the trial court’s finding that plaintiff had the superior
capacity and disposition to provide for the child’s material needs. Defendant has not established
that the trial court’s ruling on this factor is against the great weight of the evidence.
There is a degree of overlap between factors (d) and (e). Ireland, supra at 465.
FACTOR D
Factor(d) is the "length of time the child has lived in a stable, satisfactory environment, and the
desirability of maintaining continuity." MCL 722.23(d). This factor "calls for a factual inquiry
(how long has the child been in stable, satisfactory environment?) and then states a value (‘the
desirability of maintaining continuity’)." Ireland, supra at 465 n 8.
FACTOR E
Factor (e) is "[t]he
permanence, as a family unit, of the existing or proposed custodial home or homes." MCL
722.23(e). "Taken literally, factor e appears to direct an inquiry into the extent to which a
‘home’ will serve as a permanent ‘family unit.’" Id. at 465. The acceptability of the home is not
pertinent to this factor. Fletcher, supra, 447 Mich at 885. The focus of factor (e) is on the
child’s prospects for a stable family environment. Ireland, supra at 465.
The stability of a child’s home can be undermined in various ways. This
might include frequent moves to unfamiliar settings, a succession of persons
residing in the home, live-in romantic companions for the custodial parent, or
other potential disruptions. Of course, every situation needs to be examined
individually. [Id. at 465 n 9.]
With regard to the trial court’s finding that factor (d) did not favor either party, we agree
with defendant that the trial court did not comment on evidence that the child lived with her
during the 15 months preceding the trial. The focus of the court’s finding that the child was not
in a stable, satisfactory environment was on the first six months of the child’s life when plaintiff
was visiting her in the marital home.
The trial court arguably erred to the extent that it failed to
consider the child’s circumstances at the time of trial. It is clear from the court’s earlier findings,
however, that the court recognized that defendant had spent 15 months with the child. Further,
defendant’s own testimony indicated that the child’s environment had changed shortly before
trial, inasmuch as she and the child were temporarily staying in the daycare provider’s home, and
the trial court’s findings with respect to factor (e) clearly reflect the court’s awareness of
defendant’s plan to move to her father’s home in Ohio after the trial.

Considered as a whole, any error by the trial court in applying factor (d) was harmless in
light of the undisputed evidence that the child’s environment had changed shortly before trial and
would be changing again after the trial, regardless of which parent was awarded custody. It is
apparent that the court would have reached the same result regarding the instability of the child’s
environment, even if it considered her current circumstances in its evaluation of factor (d).
FACTOR E
With respect to factor (e), defendant’s claim that the trial court improperly reopened the
proofs when considering this factor is not properly before us because it lacks citation to
supporting authority. A party may not leave it to this Court to search for authority to sustain or
reject a position. Thompson v Thompson, 261 Mich App 353, 356; 683 NW2d 250 (2004);
Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). We note, however, that it
is not improper for a trial court to interrogate witnesses, even after both parties have rested.
People v Betts, 155 Mich App 478, 480-483; 400 NW2d 650 (1986); see also MRE 614(b);
People v Davis, 216 Mich App 47, 50-51; 549 NW2d 1 (1996). Therefore, to the extent that the
trial court attempted to elicit an assurance from plaintiff that he would rent or purchase a home if
the child was placed with him so that he could have control over the child’s physical
environment, we find no error.

Although it appears that the trial court went beyond the scope of factor (e) by considering
the acceptability of defendant’s proposal to stay in her father’s home and, in particular, the
evidence regarding his past domestic violence with defendant’s mother, the trial court also
expressed reservations about plaintiff’s situation. It did not find that either party had established
a proposed home that would serve as a permanent "family unit," but rather that plaintiff was
staying with a woman whom the court knew little about and that defendant’s stay in her father’s
home would be temporary. The distinction ultimately drawn by the trial court with regard to the
child’s prospects for a stable family environment under factor (e) arose from plaintiff’s superior
ability to control the child’s physical environment by taking financial responsibility for securing
a home. Overall, we are not persuaded that the trial court would not have reached a different
decision, even if it had not considered the acceptability of defendant’s proposed home when
evaluating factor (e). Therefore, any error in applying factor (e) was harmless. Ireland, supra at
468.
FACTOR F
Factor (f) is the "moral fitness of the parties involved." MCL 722.23(f). Like other
factors, the moral fitness must relate to parental fitness. Fletcher, supra, 447 Mich at 886-887.
The type of morally questionable conduct relevant to this factor includes "verbal abuse, drinking
problems, driving record, physical or sexual abuse of children, and other illegal or offensive
behaviors" Id. at 887 n 6. Contrary to defendant’s argument on appeal, the trial court
specifically addressed the moral fitness factor, weighing it in favor of plaintiff after commenting
on evidence regarding both parties. Because defendant has failed to recognize and address the
full basis of the trial court’s decision, we decline to consider this issue further. Roberts & Son
Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987).

FACTOR G
The trial court found that factor (g), the "mental and physical health of the parties
involved," MCL 722.23(g), highly favored plaintiff, because defendant’s past conduct
demonstrated problems with her emotional health. Therefore, we reject defendant’s claim that
the trial court’s concern was based on the psychological test results. Further, defendant has not
established that the trial court’s decision is against the great weight of the evidence.
FACTOR J
We also are not persuaded that the trial court’s findings that factor (j), which concerns
each party’s willingness and ability to foster a parent-child relationship with the other party,
favored plaintiff is against the great weight of the evidence.
FACTOR K
Further, the trial court’s decision to
weigh factor (k), domestic violence, in favor of plaintiff rested largely on its assessment of the
witnesses’ credibility. Overall, while domestic violence on the part of either party is not
excusable, giving appropriate deference to the trial court’s finding that defendant was the
aggressor and very confrontational during the marriage, it cannot be said that the trial court’s
finding that factor (k) favored plaintiff is against the great weight of the evidence.
REVIEW OF TRIAL COURT FACTOR ANALYSIS
In sum, even if we were to conclude that the trial court erred in its application of factors
(d) and (e), we would not reverse because we are satisfied that the trial court would have reached
the same decision that clear and convincing evidence existed to award custody of the child to
plaintiff. Further, defendant has not established that the trial court’s custody decision was an
abuse of discretion. Foskett, supra at 5.
CHANGE OF DOMICILE
Defendant’s next claim regarding the trial court’s failure to apply MCL 722.31(4) is not
properly before us because it was not presented to or decided by the trial court. Fast Air, Inc v
Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Regardless, defendant has not
established that the trial court was required to apply MCL 722.31(4).
We review issues of statutory interpretation de novo as a question of law. Spires v
Bergman, 276 Mich App 432, 436; ___ NW2d ___ (2007), lv pending; Brown v Loveman, 260
Mich App 576, 582; 680 NW2d 432 (2004). MCL 722.31 was intended to codify, with some
modification, the common-law test previously applied by this Court to determine if a child’s
domicile should be changed. Spires, supra at 436. The statute provides, in part:
(1) A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as otherwise
provided in this section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location that is more than
100 miles from the child’s legal residence at the time of the commencement of the
action in which the order is issued.
(2) A parent's change of a child’s legal residence is not restricted by
subsection (1) if the other parent consents to, or if the court, after complying with
subsection (4), permits, the residence change. This section does not apply if the
order governing the child’s custody grants sole legal custody to 1 of the child’s
parents.
(3) This section does not apply if, at the time of the commencement of the
action in which the custody order is issued, the child’s 2 residences were more
than 100 miles apart. . . . [MCL 722.31.]
This statute applies in all cases in which one parent wishes to change the legal residence
of a child whose custody is governed by a court order. Spires, supra at 436. "[T]he Legislature
intended that a parent who shares joint legal or physical custody may petition the court to
relocate a minor." Brown, supra at 589. The statute does not apply if one parent is granted sole
legal custody in the order governing custody. MCL 722.31(2); Sehlke v VanDerMaas, 268 Mich
App 262, 265; 707 NW2d 603 (2005), rev’d in part on other grounds 474 Mich 1053 (2005).
Further, the statute does not apply if, "at the time of the commencement of the action in which
the custody order is issued, the child’s 2 residences were more than 100 miles apart." MCL
722.23(3). A separate inquiry is made utilizing the best-interest factors in MCL 722.23 if the
matter involves a change in custody. See Brown, supra at 585.

The first inquiry under MCL 722.31 is to determine if the child’s custody was governed
by an order and, if so, the terms of the order. Defendant does not identify any particular order
that she claims constitutes a custody order for purposes of MCL 722.31. Although the lower
court record contains several orders governing temporary parenting time, those orders are silent
with respect to legal custody issues.

The Child Custody Act, MCL 722.21 et seq., does not use "parenting time" and
"custody" synonymously. See MCL 722.27(1) (trial court in custody dispute may award custody
to one or more parties and grant reasonable parenting time); MCL 722.26a(7) ("joint custody"
defined as a relationship in which the "child shall reside alternatively for specific periods with
each of the parents" or parents share decision-making authority on important issues). Parenting
time is granted in accordance with the child’s best interests under MCL 722.27a. See Brown,
supra at 595.
"In construing a statute, the court should presume that every word has some meaning and
should avoid any construction that would render any part of a statute surplusage or nugatory."
Thompson, supra at 361 n 2. The primary goal of statutory construction is to ascertain and give
effect to the legislative intent. Id. at 361 n 2. Because MCL 722.31 plainly requires a child
subject to a custody order, and the record contains only parenting time orders, we conclude that
MCL 722.31 does not apply. Therefore, we reject defendant’s claim that the trial court was
required to render a change-of-domicile decision under MCL 722.31.



CALCULATION OF CHILD SUPPORT
Next, defendant argues that the trial court erroneously deviated from the formula
prescribed by the Michigan Child Support Formula (MCSF) when it imputed income to her
without explaining its deviation pursuant to MCL 552.605(2). A deviation will be found where a
trial court does not follow the MCSF when imputing income. Ghidotti v Barber, 459 Mich 189,
198-200; 586 NW2d 883 (1998). The standards for imputing income are set forth in 2004 MCSF
2.10. Stallworth v Stallworth, 275 Mich App 282, 285; 738 NW2d 264 (2007). Because
defendant does not argue that the trial court misapplied § 2.10, however, we find no basis for her
claim that the trial court was required to apply the deviation standards in MCL 552.605(2).
ATTORNEY FEES
Next, defendant argues that the trial court abused its discretion by awarding plaintiff
$3,000 in attorney fees. Attorney fees in a domestic relations case are governed by statute,
MCL 552.13, and court rule, MCR 3.206©). See Reed v Reed, 265 Mich App 131, 164; 693
NW2d 825 (2005). The trial court awarded plaintiff attorney fees of $3,000 because of
defendant’s violations of court orders pertaining to the marital home and possessions in that
home. Because defendant does not address the basis for the trial court’s decision to award
attorney fees, appellate relief is not warranted. Roberts & Son Contracting, Inc, supra at 113.
FEASIBILITY OF PARENTING TIME

Next, defendant argues that the parenting time awarded to her in the divorce judgment is
not feasible because plaintiff moved from Virginia to Florida after the judgment was entered. If
a parent believes that proper cause or change of circumstances merits a change in parenting time,
the parent may move for modification of parenting time in the trial court. MCL 722.27(1)©);
Brown, supra at 595; Terry v Affum (On Remand), 237 Mich App 522, 534-535; 603 NW2d 788
(1999). Indeed, the record reflects that defendant moved for a modification of parenting time
while this appeal was pending. The instant appeal does not involve any postjudgment order
modifying parenting time, but rather is an appeal as of right from the final divorce judgment.
See MCR 7.203(A)(1) and 7.202(6)(I). Our review is limited to the record presented to the trial
court. Amorello, supra at 330. Because defendant’s challenge to the parenting time schedule is
based on circumstances arising after the judgment, we conclude that it is not properly before us
and decline to address it..

Sphere: Related Content

DEFEND YOURSELF OR LOSE EVERYTHING

GOOD MORNING FLINT!
12/15/07
By Terry Bankert
attorneybankert@yahoo.com
810-235-1970
First posted to Flint Talk
The following will be the topic of my radio program "Know the law" on WFLT 1420 AM Radio , 12/15/07, this program is on every Saturday at 9:00 am. To 9:30 a.m. WFLT is a Flint Gospel station and My program is focused most of the time on Family Law. This is a call in station. 810-239-5733.
The case selected is a recent Michigan Court of Appeals case from outside Genesee County.This is written for a lay audience, my comments are interspersed.
Issues:
1.Motion to set aside the default; In this case the Husband did not think the wife would not go through with the divorce, he did not answer the pleadings and was defaulted. The man thought he was in control until the bitter end. A default means you lose the right to file any motions, pleading (like the answer to the complaint) or participate in a trial. The Wife just went into court with the judgement she wanted, too bad for him. When this happens many counsel and their client will over rfeach and get far more than they may have gotten in a trial.Moral of the story: Answer you pleading, if you can’t afford an attorney file something anything call it an answer.
2.Challenge to the trial court’s adoption of the value of the marital home as advanced by plaintiff-wife’s appraiser; Alken-Ziegler, Inc. v. Waterbury Headers Corp.; Maldonado v. Ford Motor Co.; MCR 2.603(D)(1); Saffian v. Simmons; Gates v. Gates; Olson v. Olson; Jansen v. Jansen; Pelton v. Pelton; Evne though the case was defaulted the court understoof it still ahd an obligation to be fair so it allowed some testimony on this fact. I have seen Jujdge Beagle in Flint do just this. A good fair judge will. Wife said the house was worth $142,500 the husband said it wa worth $106,000. Since the amount owed on the proopety is know this creats a significant net value. One party will have to pay the other party 50% of this net this creates an $18,500 difference in the payoff.
3.Whether the trial court disregarded the marital home’s SEV and the effect this would have if the property ended in receivership; The reciever would be constrained by the courts determonation of value posibly.
4.Whether the trial court properly awarded plaintiff a four-wheeler vehicle; Reeves v. Reeves; Dart v. Dart; This is an argumet about separate versu marital proerty. Once you bring property to marraige its marital property. You can then argue it is separate and yours only in a divorce. If you intemengal the assest its marital. Intermingleing could be making car payments from a family account, making insurance payments from the famuily account, letting your wife drive the car as in this case. If you have that cherry 57 Chevy you might reconsider using family money to repaint it.
Here, the record reveals that although the four-wheeler was a gift to defendant from his brother,
the four-wheeler was used by both parties, as evidenced by the facts that plaintiff had possession
of the four-wheeler at her mother’s house and that it did not remain with defendant at the marital
home. The trial court did not clearly err by characterizing the four-wheeler as marital property
and did not abuse its discretion in awarding it to plaintiff.

5.Spousal support; Thames v. Thames; Moore v. Moore; The elements of Spousal support are considered. When ordeed there is not a state formula like in child support. Many attorneys will have a computer sprogram but it’s a guess where a computerized child suppoprt calculation is based upon Michigan Law.
Factors to be considered by the trial court in determining whether an award of spousal
support is just and reasonable are set out in Thames v Thames, 191 Mich App 299, 308; 477
NW2d 496 (1991), and include:
(1) the past relations and conduct of the parties,
(2) the length of the marriage,
(3)the abilities of the parties to work,
(4) the source and amount of property awarded to the parties,
(5) the parties’ ages,
(6) the abilities of the parties to pay [spousal support],
(7) the present situation of the parties,
(8) the needs of the parties,
(9)the parties’ health,
(10) the prior standard of living of the parties and whether
either is responsible for the support of others,
(11) contributions of the parties to
the joint estate, . . .
(12) general principles of equity[, and
(13)] . . . fault . . . .

6.Whether the trial court placed too much emphasis on plaintiff’s age in determining the award of spousal support; Wiley v. Wiley; McLain v. McLain; Age is just one factor in a spousal support calculation. The older you are the harder it is to get a job.

The judgment of divorce provided that plaintiff was to receive twelve
years of spousal support divided into three periods of four years each: $1,000 a month for the
first four years; $750 a month for the next four years; and $500 a month for the final four years.
The trial court’s twelve-year, incremental step-down plan in spousal support was specifically
designed to "hopefully be offset by increases in her earnings." The trial court did not clearly err
in its findings concerning plaintiff’s ability to work.
AGE OF PARTY VS ABILITY TO EARN
Defendant also argues that the trial court placed too much emphasis on plaintiff’s age in
determining the award of spousal support; he contends that, because she was in good health, the
trial court should have placed more weight on her ability to earn income.
The record reveals that
the trial court recognized that plaintiff was 50 years of age, in good health, and "was only
sporadically employed part time." However, as noted above, the trial court also recognized that
plaintiff’s business had the potential for expansion and specifically awarded spousal support in
an incremental step-down format, in anticipation of her increasing income, as well as her

7.Whether the trial court properly declined to find the pensions could be used in determining spousal support; Magee v. Magee; Keen v. Keen;
"Pensions are considered part of the marital estate subject to award upon divorce."
Magee v Magee, 218 Mich App 158, 164; 553 NW2d 363 (1996).
"Pensions may be distributed
through either the division of property or the award of [spousal support], depending on the
equities and circumstances of the specific case." Id. at 164-165. "While the division of a marital
asset such as a pension through an award of [spousal support] is not always favored, see Keen v
Keen, 160 Mich App 314, 316-317; 407 NW2d 643 (1987), it is an acceptable method of
distributing a pension in some cases." Stoltman v Stoltman, 170 Mich App 653, 658-659; 429
NW2d 220 (1988).

8.Whether the trial court properly declined to find Husband defendant’s current expenses included paying for his adult daughter’s college loans; This is just what good parents do, its optional and considered a gift.
9.Whether the trial court properly did not consider plaintiff was living with her mother. This speakes to her expenses and in this default casxe it ment nothing.
10.

Court: Michigan Court of Appeals (Unpublished)
Case Name: Barney v. Barney, Unpublished 12/04/07 St. Joseph Circuit Court, 04-000876-DO
State Bar of Michigan e-Journal Number: 37797
Judge(s): Per Curiam - Murphy, Smolenski, and Meter
The Michigan Court of Appeals rejected Husband-defendant's challenge to the trial court’s adoption of the value of the marital home as advanced by the plaintiff-wife’s appraiser. As w ill be explained later even though this case is a default case there was a hearing to determine fairness of the property distribution.
Specifically, Husband- defendant challenged the comparables used by plaintiff’s expert, who appraised the home at $142,500, as opposed to defendant’s expert, who appraised the home at $106,000 using the State Equalized Value. Comparables is a valuation process where the value of your property is determined by looking at home sales in your neighborhood.
The trial court, which is like our local Family Court Division of our County Circuit Court, determined the appraisal advanced by plaintiff was more accurate and credible, and it valued the property accordingly.
Plaintiff’s appraiser explained in detail the method he used to determine the value of the marital home, and "where a trial court’s valuation of a marital asset is within the range established by the proofs, no clear error is present." When the big court ,Michigan Court of Appeals reviews a local courts decision it is not redetermnng the issues, it is looks for errors made by the local court.
The Higher Court believes , a trial court is in the best position to judge the credibility of the witnesses and has great latitude in arriving at a final valuation of a marital asset on the basis of divergent testimony about the asset’s value. These kinds of evaluations are presumed to be best done locally where the people are in front of the court.The Court of Appeals is reading pleading and listening to attorneys.
"The trial court may, but is not required to, accept either parties’ valuation evidence." The trial court’s findings with regard to the acceptability of plaintiff’s appraisal were not clearly erroneous. The Michigan Court of Appeals upheld the decision of the lower court.
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[How does the court of appeals overturn a lower court.]
We review for an abuse of discretion a trial court’s decision with regard to a motion to set
aside a default. Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600 NW2d
638 (1999).
An abuse of discretion is found if the trial court’s decision falls outside of the range
of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
The party trying to set aside must shows good cause and files an affidavit demonstrating a meritorious defense. MCR 2.603(D)(1).
Good cause can be shown by demonstrating a "reasonable excuse for the failure to comply with the requirements that created the default." Saffian v Simmons, 267 Mich App 297, 301-302; 704 NW2d 722 (2005).
HUSBAND DID NOT BELIEVE HIS WIFE WOULD GO THROUGH WITH THE DIVORCE.
Defendant averred that he "did not take full and complete part in this divorce action" for
the reason that he "believed that [his] wife was never actually going to go forward with the
divorce."
The trial court found that defendant had a meritorious defense, noting that, due to the
significant length of the marriage and substantial assets to be divided between the parties, the
proceedings would benefit from having both parties participate.
However, the trial court found that defendant’s statement, that he did not believe plaintiff would follow through with the divorce, did not constitute good cause sufficient to warrant setting aside the default under MCR 2.603(D)(1).
IF YOU DO NOT DEFEND YOUR SELF IN A DIVORCE YOU COULD USE EVERYTHING.
The trial court commented that parties proceed at their own risk when they decline
to involve themselves in litigation under the mistaken assumption that the other party will
dismiss the case. The trial court’s finding that defendant failed to demonstrate the requisite good
cause necessary to warrant setting aside a default under MCR 2.603(D)(1) did not fall outside of
the range of reasonable and principled outcomes. Maldonado, supra at 388.
A judgment of divorce must include a determination of the property rights of the parties.
MCL 552.19; MCR 3.211(B)(3); Olson v Olson, 256 Mich App 619, 627; 671 NW2d 64 (2003).
On appeal, defendant challenges the trial court’s adoption of the value of the marital home as
advanced by plaintiff’s appraiser. Specifically, defendant challenges the comparables used by
plaintiff’s expert, who appraised the home at $142,500, as opposed to that of defendant’s expert,
who appraised the home at $106,000.
The trial court determined that the appraisal advanced by plaintiff was more accurate and credible, and it valued the property accordingly.

Plaintiff’s appraiser explained in detail the method he used to determine the value of the marital home, and "where a trial court’s valuation of a marital asset is within the range established by the proofs, no clear error is present." Jansen v Jansen, 205 Mich App 169, 171; 517 NW2d 275 (1994).
Moreover, a trial court is in the best position to judge the credibility of the witnesses and has
great latitude in arriving at a final valuation of a marital asset on the basis of divergent testimony
about the asset’s value. Pelton v Pelton, 167 Mich App 22, 25-26; 421 NW2d 560 (1988). "The
trial court may, but is not required to, accept either parties’ valuation evidence." Id. at 25. The
trial court’s findings with regard to the acceptability of plaintiff’s appraisal were not clearly
erroneous, and the trial court did not err in adopting plaintiff’s appraised value as the value of the
marital home.
Defendant also argues that the trial court erred in disregarding the marital home’s state
equalized value (SEV) and the effect that this would have if the property ended in receivership.
As noted above, the trial court had broad discretion in determining the valuation of property. Id.
at 26.
Both appraisers testified regarding the notorious inaccuracy of using state equalized
values when attempting to determine the value of a marital home for property settlement purposes in a divorce.
Even though the Defendant had defaulted he was allowed to participate in a hearing review the property disposition. As an aside, we note that defendant ultimately admitted all of the allegations in plaintiff’s complaint and was also allowed by the trial court to participate in hearings involving the fairness and equity of the divorce judgment.
Thus, we do not find that the trial court clearly erred in deciding not to
use the SEV when determining the value of the marital home.
Defendant tangentially posits that the trial court "did not take into consideration the
economic realities of the soft real estate market when it allowed the receiver language to remain
in the judgment of divorce."
Defendant does not elaborate on this argument, and "[i]t is not
sufficient for a party simply to announce a position or assert an error and then leave it up to this
Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position." Wilson v
Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (internal citation and quotation marks
omitted).
Further, a review of the trial court’s decision following the hearing reveals that the
trial court specifically recognized that "recent trends in the real estate market have been
somewhat downward in the area, as shown by Defendant’s exhibit and testimony."

In fact the trial court noted that if it was assigning value at the time it wrote the decision, it would devalue the marital home by two percent to reflect the slight downward trend. However, the trial court found that it would be unfair to calculate the equity in the home based on a current valuation and that to do so would reward defendant because of a delay of his own making.
Instead, the court fixed the equity as near as possible to the parties’ separation date. The proper time for valuation of an asset is within the discretion of the trial court, Nalevayko v Nalevayko, 198 Mich App 163,164; 497 NW2d 533 (1993), and no clear error is apparent.

Defendant also argues that the trial court erred in awarding plaintiff a four-wheeler
vehicle, contending that it was his separate property.
At the hearing, defendant testified that the
vehicle was a gift to him from his brother and that he "wanted it back."
Plaintiff testified that
she "had possession" of the vehicle.
"Generally, the marital estate is divided between the parties,
and each party takes away from the marriage that party’s own separate estate with no invasion by
the other party." Reeves v Reeves, 226 Mich App 490, 494; 575 NW2d 1 (1997). "Normally,
property received by a married party as an inheritance, but kept separate from marital property, is
deemed to be separate property not subject to distribution." Dart v Dart, 460 Mich 573, 585;
597 NW2d 82 (1999).
However, courts have the discretion to include property acquired by gift
or inheritance in the marital estate where the separate property has been commingled with the
marital property or used for joint purposes. See, e.g., Charlton v Charlton, 397 Mich 84, 94; 243
NW2d 261 (1976), and Pickering v Pickering, 268 Mich App 1, 13; 706 NW2d 835 (2005).

Here, the record reveals that although the four-wheeler was a gift to defendant from his brother,
the four-wheeler was used by both parties, as evidenced by the facts that plaintiff had possession
of the four-wheeler at her mother’s house and that it did not remain with defendant at the marital
home. The trial court did not clearly err by characterizing the four-wheeler as marital property
and did not abuse its discretion in awarding it to plaintiff.
Defendant next makes several allegations of error concerning the trial court’s award of
spousal support to plaintiff. In reviewing a trial court’s award of spousal support in a divorce
case, we review for clear error the trial court’s findings of fact. Gates, supra at 432. The
findings are presumptively correct, and the appellant bears the burden of showing clear error. Id.
If the trial court’s findings of fact are not clearly erroneous, we must decide whether the
dispositional ruling was equitable in light of the facts. Id. at 433. "The trial court’s decision
regarding spousal support must be affirmed unless we are firmly convinced that it was
inequitable." Id.
Factors to be considered by the trial court in determining whether an award of spousal
support is just and reasonable are set out in Thames v Thames, 191 Mich App 299, 308; 477
NW2d 496 (1991), and include:
(1) the past relations and conduct of the parties,
(2) the length of the marriage,
(3)the abilities of the parties to work,
(4) the source and amount of property awarded to the parties,
(5) the parties’ ages,
(6) the abilities of the parties to pay [spousal support],
(7) the present situation of the parties,
(8) the needs of the parties,
(9)the parties’ health,
(10) the prior standard of living of the parties and whether
either is responsible for the support of others,
(11) contributions of the parties to
the joint estate, . . .
(12) general principles of equity[, and
(13)] . . . fault . . . .
VOLUNTARY REDUCTION IN INCOME
Defendant argues that the trial court failed to consider that plaintiff voluntarily reduced her income by not charging her friends "the actual amount of what her work is worth" and by refusing to advertise her fledgling interior design/wall treatment business and instead relying on word of mouth. Defendant is correct that a voluntary reduction of income may be considered in determining the proper amount of spousal support. Moore v Moore, 242 Mich App 652, 655;619 NW2d 723 (2000).
IMPUTED INCOME
If a court finds that a party has voluntarily reduced her income, it may
impute additional income in order to arrive at an appropriate award of spousal support. Id.

Here however, plaintiff did not voluntarily reduce her income. The trial court specifically noted that
she earned a "very modest [gross] income" of $7,983 in 2005. Defendant essentially argues that
the trial court erred in failing to award plaintiff spousal support in line with plaintiff’s
prospectively attainable income.
However, the record reveals that this is exactly what the trial
court did. The trial court recognized that plaintiff was "hopeful of expanding her business and
her income in the future."
The judgment of divorce provided that plaintiff was to receive twelve
years of spousal support divided into three periods of four years each: $1,000 a month for the
first four years; $750 a month for the next four years; and $500 a month for the final four years.
The trial court’s twelve-year, incremental step-down plan in spousal support was specifically
designed to "hopefully be offset by increases in her earnings." The trial court did not clearly err
in its findings concerning plaintiff’s ability to work.
AGE OF PARTY VS ABILITY TO EARN
Defendant also argues that the trial court placed too much emphasis on plaintiff’s age in
determining the award of spousal support; he contends that, because she was in good health, the
trial court should have placed more weight on her ability to earn income.
The record reveals that
the trial court recognized that plaintiff was 50 years of age, in good health, and "was only
sporadically employed part time." However, as noted above, the trial court also recognized that
plaintiff’s business had the potential for expansion and specifically awarded spousal support in
an incremental step-down format, in anticipation of her increasing income, as well as her
forthcoming ability to draw on her social security and other retirement benefits.
This case is
similar to Wiley v Wiley, 214 Mich App 614, 615; 543 NW2d 64 (1995), where the wife had a
history of part-time employment and this Court recognized that "although the trial court certainly
intended to encourage her to work full-time[,] that objective is not always attainable for people in
their fifties, male or female."
Similarly, in McLain v McLain, 108 Mich App 166, 173; 310
NW2d 316 (1981), this Court found that the fact that the plaintiff was 55 years of age would
"probably be detrimental to her ability to find work, even if she is able." The trial court here
properly took into account plaintiff’s age, health, and ability to work in determining whether and
how much of an award of spousal support was warranted.
PENSIONS
Defendant next argues that the trial court erred in not finding that the pensions (divided
by the qualified domestic relations orders [QDROs]) could be used in determining spousal
support
The trial court awarded plaintiff one-half of defendant’s 457 plan and one-half of the
marital share of defendant’s municipal employee plan through two QDROs. The trial court
commented that "[t]he terms for the QDRO as set forth in the proposed judgment are deemed fair
and proper, including sole surviving spouse status for those plan benefits already accrued as of
the date of Judgment."
"Pensions are considered part of the marital estate subject to award upon divorce."
Magee v Magee, 218 Mich App 158, 164; 553 NW2d 363 (1996).
"Pensions may be distributed
through either the division of property or the award of [spousal support], depending on the
equities and circumstances of the specific case." Id. at 164-165. "While the division of a marital
asset such as a pension through an award of [spousal support] is not always favored, see Keen v
Keen, 160 Mich App 314, 316-317; 407 NW2d 643 (1987), it is an acceptable method of
distributing a pension in some cases." Stoltman v Stoltman, 170 Mich App 653, 658-659; 429
NW2d 220 (1988).
Here, the trial court characterized defendant’s retirement accounts as marital
property and divided them as such. This was in line with the more favorable method of
distribution of retirement assets. "[C]haracterizing any payment as a property distribution rather
than [spousal support] . . . entitle[s] the nonpension-holding spouse to receive the assets due him
or her regardless of remarriage or death." Keen, supra at 317.
This method achieves an
"equitable distribution of the marital estate . . . regardless of such events as death and
remarriage." Id. The trial court did not err in distributing the retirement assets through the
property division.
Defendant next argues that the trial court erred in failing to find that his current expenses
included paying for his adult daughter’s college loans.
The record reveals that the trial court
recognized that more than $400 of defendant’s monthly expenses was for the parties’ adult
children, but it noted that defendant voluntarily assumed those expenses.
Defendant testified that he was paying $300 a month on his adult daughter’s three college
loans, two of which he had co-signed.2 Defendant argues on appeal that, because he cosigned
the loans and because his daughter is not making payments on them, he has a legal obligation to
do so.
However, defendant did not advance this argument at trial or offer any proof that his
daughter was delinquent; therefore, the trial court did not clearly err in determining that
defendant’s payments were voluntary and in accordingly declining to consider those expenses
when calculating spousal support. See, generally, Lesko v Lesko, 184 Mich App 395, 405; 457
NW2d 695 (1990), rejected in part on other grounds by Booth v Booth, 194 Mich App 284, 290-
291 (1992).
Finally, defendant argues that the trial court erred in failing to consider that plaintiff was
living with her mother, thereby reducing her expenses. The record reveals that the trial court was
2 Plaintiff disputed that defendant had co-signed the loans.

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URBAN REVOLUTION

GOOD MORNING FLINT!
12/14/07 By Terry Bankert
attorneybankert@yahoo.com
Posted first to Flint Talk http://flinttalk.com/viewtopic.php?p=20161#20161

I think Genesee County and all of its communities must seriously debate the reorganizations of its basic services.

But we must differ from simplistic answers. I am not arguing for county executive.

There are many ways to deliver basic service like Fire protection.

Fire protection has many components that may avail them selves to being manipulated separately, unbundling.

For instance; Equipment purchased could be coordinated through a central purchasing department such as Genesee County Purchasing or the City of Flint purchasing.

Fire inspection work can be centralized to allowed the most professional to be available to all jurisdictions.

1.Health benefits could be centralized to get a better price.

2.There could be a central dispatch system.

3.There are many negative and positive spill overs caused by our current system. I support partial regionalization of this system.

I think fire service delivery differs significantly from a city setting to a rural system. In our reconstruction of fire service delivery this should be recognized.

Commissioner Curtis and others are providing a valuable service in the way they are raising this issue.

I attended the Meeting of the Flint Board of Education that rose Linda Thompson to the position of Superintendent. She received all but the support of Mr. Hatter who did pledge to work with her. I questioned whether or not Bashier should have abstained, but that’s his call.

Superintendent of Flint Schools Linda Thompson has the perfect temperment to face the fire storm brewing on the horizon as Flint Schools are closed.

Sherif Robert Pickell’s fundraiser was standing room only with barley enough space to park your car. He is an excellent sheriff and master politician.


Where will the dynamics of urban technological revolution take Flint? See[1]

As out cities evolve we sustain paradigm shifts in how we analyze city dynamics. V.Gordon Child In his article The Urban Revolution talks of the overlapping evolution of different eras. His basic proposition is that cities provide a social surplus to allow specialized activity and citizens are there for economic and physical safety. This sounds familiar.

We hear this in our political drum beat from our political leaders to provide increased police protection and jobs.

This drum beat is not new it is the basis of modern urban civilization. We no longer have walled fortified cities protecting us from foreign invaders. Required now is adequate police protection to protect us from ourselves. That is to protect city dweller from other city dwellers. Police protection and enforcement of the rules of law are of the highest importance.

Second is economic security. Easy access to “out of city” jobs and enticement and retention of small, medium and large business in Flint is the second highest importance. The job creation paradigm must include quality education for our citizens.

This is necessary for Flint to complete for jobs and enticement for business to locate here where a specialized work force will demand quality education for their children. Flint should prepare itself for change. We have a unique opportunity to change our mix of business activities in Flint combined with changes in our physical landscape.

The Flint Board of Education is tasked with providing a quality education for our residents.

The Future of Flint is the combined influence of the Flint municipal corporation and school system. Both bodies, Flint Board of Education and City of Flint Municipal Corporation, have the same general mission ,to improve the quality of life in Flint.

Terry Bankert. 12/14/2007

1.See Generally” The City Reader 3rd edition by LeGates and Stout 2003 Published by Routledge.

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