DEMOCRATS STOP THIS GAME!

SUPER DELEGATES, IN A COMIC SOAP OPERA

MORNING FLINT! Early edition

BY Terry Bankert 3/24/08
http://attorneybankert.com/
You are invited to join me at Face Book http://www.facebook.com/people/Terry_Bankert/645845362 ___________________________
Full article at http://goodmorningflint.blogspot.com/
SUMMARY ON Flint Talk http://flinttalk.com/viewtopic.php?p=26445#26445 _____

THE PLOT THICKENS Readers of a certain age might remember the hit American television show Dynasty. It was originally conceived of as a rival to Dallas, with all those Texan oilmen types, but fast established itself as the most lavish and ludicrous of soap operas. The plot operated around Blake (John Forsythe), his wife Krystle (Linda Evans) and his former bride Alexis (Joan Collins) and others who constituted the rival Carrington and Colby families. [t]

SPELLBINDING GREAT ENTERTAINMENT BUT NO WAY TO PICK A PRESIDENT!

It had Americans under its spell in the mid 1980s, but the combination of ever more insane storylines and endless pay disputes among its performers undermined it. Eventually the plug was pulled in 1989 with a cliffhanger tale in which the stars were imperilled but viewers never found out what happened to them. [t]

DENVER THEN AND NOW

Dynasty was set in Denver, Colorado. By appropriate coincidence, the Democratic national convention will occur in the same city in late August. [t]

The party is now under intense pressure to forge a solution that backers of both Senator Clinton and Barack Obama see as fair. "The real danger is a 1968 convention for the Democrats, where people felt cheated," says Ronald Rapoport, a political scientist at the College of William and Mary in Williamsburg, Va., alluding to one of recent history's most divisive and damaging conventions. [c]

OUR GRANDCHILDREN WILL NOT BELIEVE THIS STORY

It is already evident that the contest between Barack Obama and Hillary Clinton will match anything created by fiction. Yet as the next few weeks will demonstrate, their competition will soon make Dynasty look like gritty social realism.[t]

FIRE ON THE HORIZON

This is a battle destined to become both extremely close and exceptionally combustible. It is hard to believe that Democrats will benefit from it. [t]

DO THE MATH.

Pledges (common democrats) plus Supers (elite Democrats) =nominee. The situation today is as follows. It takes 2,025 delegates to secure a majority and with it victory. About 80 per cent of these Democratic stalwarts will be chosen by voters through primaries and caucuses (“pledged delegates”), the remaining 20 per cent are party leaders of various sorts (“super delegates”). [t]

COMMON DEMOCRATS WANT OBAMA,...SO FAR.

As of now, Mr Obama has won 1,414 pledged delegates to Mrs Clinton’s 1,246, which looks like an imposing lead. [t] In the states that chose their representatives by primaries (open ballots, much like local or general elections here), though, they are almost even. Mr Obama has a clear lead because of his success in caucuses (formal meetings in which the turnout is far lower than primaries and dominated by the most dedicated activists), which are arguably less legitimate indications of general support.[t]

MICHIGAN AND FLORIDA ARE HELPING CLINTON,....NOT

Furthermore, two big states – Florida and Michigan – held primaries (in which Mrs Clinton did best) but have been barred from participating in the convention because they held them earlier than they had been instructed.[t]

With Obama's nearly insurmountable lead in pledged delegates, a revote in Florida and Michigan – or a recognition of the January results – was viewed as Clinton's best chance to narrow the gap and persuade superdelegates of a popular mandate for her candidacy.[c]

THIS IS CLEAR AS MUD

If this all sounds murky, it is about to become much, much worse. There are still a number of ballots to be held. The first is in Pennsylvania, which Mrs Clinton must, and probably will, win. Her rival then has a decent chance to hit back in North Carolina on May 6, where a large proportion of the electorate are African-Americans. Most of the remaining states (Indiana, West Virginia, Oregon, Kentucky, Puerto Rico, Montana and South Dakota) are likely to be inclined towards Mrs Clinton. [t]

Theoretically, there are two forums where the dispute could be resolved: inside the Democratic Party, first in the Credentials Committee and ultimately at the Convention; or in the courts.[f]

WILL IT BE DOOR #1, #2 OR #3?

Such an outcome would result in three intriguing consequences.[t]

#1 MICHIGAN AND FLORIDA MESSED THIS UP

The first is that there could almost be a tie over the number of pledged delegates. Mr Obama, thanks to the proportional representation rules his party uses, will probably have the greatest number in straightforward terms, but will be behind among those secured in primaries, rather than caucuses. Mrs Clinton would also be able to assert that, if the votes cast in Florida and Michigan were included, then she would be the stronger. In that case she would have finished more impressively than her opponent. [t]

#2 THE SUPERS HAVE A MORAL OBLIGATION TO DECIDE FOR US, THE RACE IS NOT OVER UNTIL THE xxx LADY SINGS.

Secondly, the nomination will have to be settled by the super delegates. There are almost 800 of these and more than 300 have still to state their position. Not that it would matter if they had done so, because super delegates are allowed to change their minds right up until the official count at the convention. That being so, even if either Mr Obama or Mrs Clinton were to calculate that they were in second place when the very last primary had been completed in early June, they would have no good reason to abandon their campaigns. [t]

Why not hang on and see if events were to turn up another version of the Reverend Jeremiah Wright, the pastor who has embarrassed Senator Obama recently, or produce an issue that could be exploited? In a further quirk, the convention is being held later than usual because the Democrats decided that it would “maximise momentum” to defer it. [t]

Mark Penn, her chief strategist, says the campaign will look beyond hard numbers in making its case to the some 300 superdelegates, or party leaders, who remain uncommitted. "It's not a question of a cut and dried calculation at this point," he told reporters on a conference call Friday. The campaign hopes superdelegates will also consider "who they believe can win the general election" and who is better "for the good of the country and the good of the party." [c]

But the Clintons won’t be muzzled and are fighting for their political lives. They obviously don’t care if their vicious attempt to win their nomination battle may end up costing the party the war.[N]

#3 VERY LITTLE TIME TO CLEAN THE MESS UP BEFORE THE ELECTION IN NOVEMBER.

Which means, thirdly, that it may be a convention like no other in recent decades. These occasions are normally totally controlled by the presumptive nominee and orchestrated to suit him (or her). They decide who will make the big speeches, impose the policies to be adopted, and the delegates confirm a vice-presidential selection that the candidate has announced to the world a while earlier. The convention is thus simply a vast rally. [t]

FIFTY DELEGATES MAY DECIDE WHO THE NOMINEE IS

That cannot occur if it is uncertain who the champion will be. The party itself will have to run the convention in close, if tense, consultation with the two contenders. The policy details will become a proxy for the fight between the Clinton and Obama camps. No vice-presidential name can be put forward until the top of the ticket is determined. It is entirely possible that the nomination will be awarded on the basis of a margin of as few as 50 delegates, or fewer, out of more than 4,000 present. [t]

THOSE ELITE ENTITLED SUPER DELEGATES MAY DECIDE,PRIVATELY

The super delegates might overrule the pledged delegates, as they are entitled to, attracting intense controversy. [t]

HILLARY MAY BE LOSING THE SUPER DELEGATES SHE HAS SPENT A LIFE TIME CULTIVATING. HERE’S WHY.

The Hillary and Bill Clinton scorched-earth strategy of laying waste to Obama, or his supporters like Bill Richardson, is going to backfire among those in the only constituency who can put Hillary in the saddle. The super delegates.[N]

These people are professional politicians, officials and operatives who are horrified that the Clintons et Co. are producing negative soundbytes which will become fodder for the McCain side come the real contest in the fall. But this should come as no surprise .[N]

AFTER CONVENTION 8 WEEKS TO ELECTION

A bitterly divided party would then have about two months to bind its wounds before polling day in November.[t]

THE REPUBLICANS WILL LAUGH ALL THE WAY TO THE BANK, AGAIN.

Meanwhile, a few days later, the Republican convention will open in Minneapolis, a model of love, peace and unity compared with the Democratic showdown. [t]

MCAIN A BUSH SUPPORTING WAR MONGERING ,ECONOMY DEVASTOR, HAS BEEN, COULD WIN BECAUSE OF WHAT THE DEMOCRATS DO THEMSELVES

In one of the more crackpot Dynasty plotlines, Blake and Alexis end up running against each other for public office (the post of Governor of Colorado) but their expensive feud serves only to allow another candidate to emerge triumphant. John McCain has reason to hope that Mr Obama and Mrs Clinton are poised to do exactly the same, to his advantage. [t]

That leaves Democrats without delegates for the August national convention, the prospect of disillusioned voters — and an opening for Arizona Sen. John McCain, the presumptive GOP presidential nominee, in a state that has not gone Republican since 1988.[h]

"It's not breaking my heart," said Kent County GOP Chairman Dave Dishaw. "From a John McCain perspective, obviously I'm very excited that they can't get their act together."[h] Jeff Williams, a senior vice president with Public Sector Consultants in Lansing, said it would be premature to assume all this chaos means the GOP will win Michigan. He believes the advantage still is with the Democrats.[h] But he agrees McCain's image as a political maverick could help him win independents. His chances improve each week and month the Democrats fail to find a candidate, he believes.[h]

WOULD A REAL NON CANDIDATE LEADER STEP FORWARD, BUILD A COALITION AND GET THIS RIGHT....OUR FUTURE DEPENDS ON IT...AL GORE WHERE THE HADIES ARE YOU?

Meanwhile, party leaders in Florida and Michigan are adamant that their delegations be seated according to the popular vote. "I am deeply disappointed," Michigan Gov. Jennifer Granholm said in a statement after talks collapsed for a state-run, privately funded primary on June 3. "Now that the Legislature has decided not to act, we will turn our attention to other options." [c]

A ROUGH END GAME WILL BACK FIRE AND GIVE OBAMA THE NOMINATION

Short of a Hail Mary Pass, the Clintons are digging themselves an early, and permanent, party grave. More super delegates are going to follow Richardson’s lead even if Hillary pulls off Pennsylvania on April 22.[N]

National polls, after a rough week for Obama, have them tied and he is gaining again at her expense. But Obama has 730,000 more votes and 131 more super delegates than her and has it bagged even if she wins everything else in huge numbers.[N]

BUT WITH THIS DAMAGE CAN WE WIN THE GENERAL ELECTION

Posted here by Terry Bankert ... http://attorneybankert.com/

Join my political party of preference, http://www.michigandems.com/join.html

—WHERE DID THIS STUFF COME FROM---

[t] The Timesonline http://www.timesonline.co.uk/tol/comment/columnists/tim_hames/article3607493.ece?openComment=true

[TRB] Comments of Terry Bankert and CAP headline unattributed. http://attorneybankert.com/

[F] The Fox Network http://www.foxnews.com/story/0,2933,340792,00.html

[c] The Christian Science Monitor http://www.csmonitor.com/2008/0324/p03s03-uspo.html [h] Houston Chronicle.com http://www.chron.com/disp/story.mpl/headline/nation/5639458.html

[n] The National Post http://network.nationalpost.com/np/blogs/francis/archive/2008/03/23/mccain-s-preachers-scary-too.aspx

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FLINT CITIZENS DEMAND DEMOCRATS REVOTE BY CAUCUSES!

FLINT CITIZENS CALL FOR STATE WIDE DEMOCRATIC PARTY CAUCUSES!

See http://groups.yahoo.com/group/Flintcitizen/message/1489
________
GOOD MORNING FLINT!
BY Terry Bankert 3/23/08
http://attorneybankert.com/
You are invited to join me at Face Book http://www.facebook.com/people/Terry_Bankert/645845362 ___________________________
Full article at http://goodmorningflint.blogspot.com/
SUMMARY ON Flint Talk http://flinttalk.com/viewtopic.php?p=26413#26413
_____
Revolt of Michigan’s Common Democrats![trb] DNC Rules Chair says Michigan; Hold caucuses.[D2] for the common democrat.[trb]

Roosevelt encouraged Michigan to return to its original plan, adopted before the Jan. 15 primary was set. Party caucuses had been planned for Feb. 9, and Roosevelt suggested the party could hold caucuses sometime in May or June. "The Michigan party knows how to run an alternative process," he said. [d2]

I am for the little (d) common Democrat. Its time we show up, stand up and speak up. What is needed is a demonstration of support for the proposition that Michigan must hold a caucus to re franchise Michigan at the National Democratic Convention. Forward this article to all of your democratic friends.[trb]

James Roosevelt Jr., a Massachusetts health-care executive is co-chair of the DNC's rules committee. [D2]

CALL TO ACTION FOR PRECINCT DELEGATES TO TAKE OVER THE MICHIGAN DEMOCRATIC PARTY!

The current non-leadership of the Michigan Democratic party wants to broker a Democratic Convention by leveraging its superdelegate vote.[trb]

The last thing they want is for the common democrat to assert its democratic voice at a caucus. Jesse Jackson taught the non-leaders currently in control of the Michigan Democratic party that they lose control if too many regular democrats get involved in the process. [trb]

This is about power, control and the maintenance of special privilege of the super delegates and their employees that currently run the Michigan Democratic Party. [trb]

The States precinct delegates should rise up and take over the Michigan Democratic party. Where is Sam Riddle when you need him?[trb]

THE CANDIDATES SHOULD FOLLOW US!

Who cares what the candidates think. This is our party and the Michigan leadership has screwed up and disenfranchised 500,000 voters. We need to throwout ( hold accountable) our leadership and gerterdone ASAP![trb]

Even if the candidates could agree, there were serious questions about whether party officials could conduct caucuses. In 2004, about 163,000 people voted at about 250 Democratic caucus sites. Party officials estimate that 2008 caucuses -- amid the closest nomination fight in recent history -- could attract as many as 2 million voters, requiring 1,000 or more caucus sites. [d2]

State Democratic Party postpones district conventions [D]did you know this?[trb]

Dems look at divvying up delegates Candidates nix mail-in or caucus voting, so attention turns to a negotiated division.[d2]

WHO IS THIS PANEL?

The panel of four influential Democrats who proposed the do-over primary conferred again Friday afternoon, searching for an alternative that would be acceptable to the state and national parties, and Obama and Clinton. [d2]

WE MUST HOLD OUR LEADERSHIP ACCOUNTABLE TO REGAIN THE TRUST OF MICHIGAN VOTERS

Acknowledging that Michigan's delegate selection mess is unlikely to be resolved in the coming week, the state Democratic Party decided to postpone its congressional district conventions. [d]

A process of elimination is leaving Michigan Democratic leaders with a series of unappetizing choices: accept a negotiated split of the state's convention delegates, hope a nominee emerges who can lift the national party's ban on Michigan, or pursue a divisive, long-shot fight for the state's place in Denver[d2]

15 district gatherings, at which more than half of the Democratic delegates are elected to the Democratic National Convention in August, had been slated for March 29. [d]

Without a new election, Michigan could follow the path of Florida, which like Michigan held an unauthorized January primary and drew the delegate equivalent of the death penalty. Officials in Florida are working to strike a deal with the campaigns and the national party that would seat its delegates on a formula based only partially on the results of the state's Jan. 29 contest. [d2]

"Caucuses necessarily exclude too many people," said Clinton spokesman Phil Singer. Obama has consistently out-performed Clinton in caucus states[d2]

The state party's executive committee late Friday postponed the conventions until April 19. [d]

It remains to be seen whether the delegate picture will be any clearer by then. The national party stripped Michigan of its delegates because its Jan. 15 primary was held three weeks earlier than party rules allowed. [d]

An effort to have a do-over primary died in the Legislature earlier this week. On Friday, the Obama and Clinton campaigns ruled out two other options: a mail-in vote and a party caucus. [d]

That leaves as the only choices for seating delegates: Accepting a negotiated split of delegates; hoping a candidate emerges who will lift the party's ban on the seating of the delegates; or pursuing a long-shot appeal of party rules. [d]

Michigan is supposed to have 156 delegates to the national convention. Of that total, 83 are to be elected at congressional district conventions. Another 45 are picked at the State Party Central Committee meeting on May 17. The other 28 are uncommitted superdelegate, including elected officials and state and national party officials. [d]

WHO TOLD MARK BREWER TO VIOLATE THE RULES OF THE DNC THAT DISENFRANCHISED 500,000 MICHIGAN DEMOCRATS?

Levin and others have argued that New Hampshire and other states also changed the dates of their contests, violating party rules, and should have been punished as well. Michigan set its Jan. 15 contest only after New Hampshire's top election official announced in August that his state would move up. [D2]

With efforts to set up a June 3 state-run primary dead in Lansing, aides to presidential candidates Barack Obama and Hillary Clinton on Friday ruled out two likely alternatives: a mail-in primary or caucuses run by the Michigan Democratic Party. Even with approval from the candidates, either plan would face steep logistical hurdles. And there were few ideas beyond those two for how the state could hold a nomination contest that would bring it back within the national party's rules. [d2]

COMMON DEMOCRATS MUST FORCE THE MICHIGAN DEMOCRATIC PARTY AND ITS SUPER (duper) DELEGATES TO FOLLOW THE SUGGESTION , RULES,ORDERS,OF THE DNC, DEMOCRATIC NATIONAL COMMITTEE

Roosevelt encouraged Michigan to return to its original plan, adopted before the Jan. 15 primary was set. Party caucuses had been planned for Feb. 9, and Roosevelt suggested the party could hold caucuses sometime in May or June. "The Michigan party knows how to run an alternative process," he said. [d2]

THE DEMOCRATIC GOVERNOR OF THE STATE OF MICHIGAN MUST STEP FORWARD TO STRAIGHTEN THIS MESS UP AND REGAIN VOTER CONFIDENCE.

As always I am available to help.[trb]

Posted here by Terry Bankert ...
http://attorneybankert.com/
Join my political party of preference,
http://www.michigandems.com/join.html

—where did this stuff come from---
[d] Detroitnews.com http://www.detnews.com/apps/pbcs.dll/article?AID=/20080322/POLITICS01/803220419/1361
[d2] Detroitnews.com http://www.detnews.com/apps/pbcs.dll/article?AID=/20080322/POLITICS01/803220320
[trb] Coments of Terry Bankert to nclude CAP headlines http://attorneybankert.com/

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WFLT 1420 AM, SATURDAY 9:00 AM BANKERT ON FAMILY LAW CALL IN PROGRAM 239-5733

Issues: Divorce; Motion to terminate spousal support;

________
GOOD MORNING FLINT!
BY Terry Bankert 3/22/08
http://attorneybankert.com/
You are invited to join me at Face Book http://www.facebook.com/people/Terry_Bankert/645845362
___________________________
Full article at http://goodmorningflint.blogspot.com/
SUMMARY ON Flint Talk http://flinttalk.com/viewtopic.php?p=26379#26379
_____

The following is a recent Court of Appeals case that I will present on WFLT 1420 A.M. radio Flint MI Saturday 3/22/08 9:00 am until 9:30 am. It is a call in program. Questions will be fielded by calling 810-239-5733
____________________________
In the case we will talk about today the issues are.


WHAT IS COHABITATION
Whether the trial court properly interpreted the term "cohabitation" as used in the judgment of divorce; Beason v. Beason; Birthelmer v. Birthelmer (Unpub. Ohio App.);

Whether the defendant-wife and her boyfriend were cohabiting; In re BZ; Attorney fees and costs under MCR 3.206(C); Gates v. Gates; Maldonado v. Ford Motor Co.; Reed v. Reed;

Whether the trial court properly relied on the "American rule" in denying defendant's request for attorney fees; Haliw v. City of Sterling Heights

THE CASE REVIEWED
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
WILLIAM JEFFREY SMITH,
Plaintiff-Appellant/Cross-Appellee,
FOR PUBLICATION
March 18, 2008
9:05 a.m.
v No. 273547
Kent Circuit Court
BETTY LEE SMITH, a/k/a BETTY LEE
JENKINS,
LC No. 98-004557-DM
Defendant-Appellee/Cross-
Appellant.
Before: Bandstra, P.J., and Meter and Beckering JJ.
BECKERING, J.
Court: Michigan Court of Appeals (Published)
Case Name: Smith v. Smith
e-Journal Number: 38794
Judge(s): Beckering, Bandstra, and Meter

MULTI FACTOR TEST

The court held the trial court properly employed a multiple-factor test in determining whether the defendant-wife and her boyfriend were cohabitating and properly denied the plaintiff-husband's motion to terminate spousal support, finding defendant and her boyfriend were not cohabitating.

17 YEAR MARRAIGE

The parties were divorced following a 17-year marriage during which they had 5 children.

$3,500 PER MONTH IN SPOUSAL SUPPORT

The judgment of divorce required plaintiff to pay defendant $3,500 per month in spousal support, but provided his obligation to pay spousal support would terminate "upon such time as the Defendant cohabitates with a non-related male."

COHABITATE AND YOU GET NO SUPPORT.

Cohabitation requires more than briefly living together or regularly engaging in sexual activity. Whether cohabitation exists is a factual determination based on the totality of the circumstances. No one factor defining a couple's relationship is dispositive on the question of cohabitation.

LONG-DISTANCE RELATIONSHIP

Defendant's relationship with her boyfriend was more accurately characterized as a committed, long-distance relationship, involving regular overnights together, than as two people "living together . . . as partners in life," or "dwelling together . . . in the manner of husband and wife."

THE BOYFRIEND HAD HISOWN HOME

The boyfriend maintains a separate residence in Georgia, does not keep personal items at defendant's house, does not regularly receive mail there, the couple does not share personal property, they do not hold themselves out as living together, and they are not financially interdependent. Affirmed.
—

PROCEDURE

Plaintiff appeals by leave granted the trial court order denying his motion to terminate
spousal support. Defendant cross-appeals the trial court’s denial of her request for attorney fees
and costs. We affirm.
=
DIVORCED 1999 AFTER 17 YEARS

The parties were divorced in June of 1999, following a seventeen-year marriage during
which they had five children. The judgment of divorce required plaintiff to pay defendant
$3,500 per month in spousal support, but provided that plaintiff’s obligation to pay spousal
support would terminate "upon such time as the Defendant cohabitates with a non-related male."

SHES LIVING WITH A GUY I WANT SUPPORT STOPPED...NOW!

In January of 2005, plaintiff moved to terminate spousal support, asserting that defendant was
cohabitating with her boyfriend, Philip J. Walsh II. Following an evidentiary hearing, the trial
court denied plaintiff’s motion to terminate spousal support, finding that defendant and Walsh
were not cohabitating.

I THINK THE COURT MESSED UP

Plaintiff first argues that the trial court erred in its interpretation of the term
"cohabitation," as used in the parties’ judgment of divorce. A judgment of divorce is to be
construed in light of the trial court’s findings of fact and conclusions of law. Beason v Beason,
435 Mich 791, 798-799 n 3; 460 NW2d 207 (1990). A trial court generally interprets the terms
of a divorce judgment, such as the term "cohabitation," in the same manner that it interprets a
contract. Id. If the term’s meaning is unclear or it is equally susceptible to more than one
meaning, as is the case here, interpretation is a question of fact, and the trial court may consider
extrinsic evidence to determine the intent of the parties. Id.; Brucker v McKinlay Transport, Inc (On Remand), 225 Mich App 442, 448; 571 NW2d 548 (1997). A trial court commits legal error
when it incorrectly chooses, interprets, or applies the law. Fletcher v Fletcher, 447 Mich 871,
881; 526 NW2d 889 (1994).1

THE JUDGEMENT DID NOT SAY WHAT COHABITATION MENT

The parties’ judgment of divorce did not define the term "cohabitation," and there are no
authoritative Michigan cases that define the term in the context of terminating an award of
spousal support.2

Therefore, it was appropriate for the trial court to consider the dictionary
definition of the term "cohabitation" and case law from other jurisdictions that have interpreted
the term in a similar context. See Henderson v State Farm Fire & Cas Co, 225 Mich App 703,
710; 572 NW2d 216 (1997), rev’d on other grounds 460 Mich 348 (1999) (where no Michigan
cases are directly on point regarding the meaning of a phrase, it is appropriate to turn to
dictionary definitions and case law from other jurisdictions).

THE DICTIONARY SAID

In making its findings, the trial court referenced Black’s Law Dictionary (8th ed) which
defines "cohabitation" as "[t]he fact or state of living together, esp. as partners in life, usu. with
the suggestion of sexual relations." Similarly, Ballentine’s Law Dictionary (3rd ed) defines
"cohabitation" as "[a] dwelling together of man and woman in the same place in the manner of
husband and wife." After considering the dictionary definition of "cohabitation," the trial court
adopted the definition for the term articulated in Birthelmer v Birthelmer, unpublished opinion
OF the Court of Appeals of Ohio for the Sixth District, issued July 15, 1983 (Docket No. L-83-046),

1 Defendant argues that the term "cohabitation" should be construed against plaintiff, as the
drafter of the judgment of divorce. Our Supreme Court has held, however, that the rule of contra proferentem, i.e., that ambiguities are to be construed against the drafter of the contract, should
only be applied if all conventional means of contract interpretation, including the consideration
of relevant extrinsic evidence, have left the finder of fact unable to determine what the parties
intended their contract to mean. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 470-471, 474; 663 NW2d 447 (2003). Because the trial court relied on conventional rules of contract
interpretation, construing the term "cohabitation" against plaintiff as the drafter of the judgment was unnecessary.

2 In Passwaters v Passwaters, unpublished opinion per curiam of the Court of Appeals, issued
September 3, 1999 (Docket Nos. 204310, 204311), slip op p 6, this Court found no error in the
trial court’s interpretation of the term "cohabitation" in the parties’ judgment of divorce. The
divorce judgment in that case specifically adopted the definition of "cohabitation" in Black’s
Law Dictionary (5th ed). Id., slip op p 5.

WHY DO WE HAVE SPOUSAL SUPPORT

The trial court explained that the purpose of spousal
support was to allow a spouse in need of support to continue to receive support after a divorce,
and that, if the recipient spouse cohabited with another person, such as her mother, the payor’s
responsibility to pay spousal support would not be abrogated. Id., slip op p 6.

COHABITATION MORE THAN LIVING TOGETHER?

That is, "merely
sharing a home and expenses with another person without romantic involvement does not
mandate termination of spousal support." Id. On appeal, this Court found that the trial court’s
reasoning was supported by the dictionary definition of cohabitation, which likens cohabitation
to a marriage relationship. Id.

This Court also pointed out that the term "cohabitation" as used
in Ianitelli v Ianitelli, 199 Mich App 641, 644-645; 502 NW2d 691 (1993), and Petish v Petish,
144 Mich App 319, 321; 375 NW2d 432 (1985), involved situations where the recipient former
spouse admitted to living with another person in an apparently romantic manner. Passwaters,
supra, slip op p 6. as affirmed and applied in Dickerson v Dickerson, 87 Ohio App 3d 848; 623 NE2d 237 (1993) and Moell v Moell, 98 Ohio App 3d 748; 649 NE2d 880 (1994).

THREE ELEMENTS OF COHABITATION

In Birthelmer, supra, the Ohio Court of Appeals set out three elements distinguishing genuine cohabitation relationships from those which are not:

First, there must be an actual living together, that is, the man and woman
must reside together in the same home or apartment.

Secondly, such a living
together must be of a sustained duration.

Thirdly, shared expenses with respect to
financing the residence (i.e., rent or mortgage payments) and incidental day-today
expenses (e.g., groceries) are the principal relevant considerations.

The trial court noted that, in adopting the Birthelmer test, it gave consideration to the fact
that Ohio is geographically proximate to Michigan, the case provided a well-reasoned decision
for selecting the three factors, and it has since been followed by other Court of Appeals decisions
in Ohio that have adopted the three factors and added to them.

OTHER FACTORS IN DETERMINING COHABITATION

In addition to the three elements set out in Birthelmer, supra, the trial court considered
the following factors:

whether defendant and Walsh intended to cohabitate;

whether they held
themselves out as living together;

whether they assumed obligations generally arising from
ceremonial marriage;

whether a sexual relationship existed;

whether marriage was contemplated;

whether they used one another’s addresses;

whether they kept joint accounts;

whether they were
economically interdependent;

and whether defendant used her spousal support to subsidize the
alleged cohabitation.


We find that the trial court properly employed this multiple-factor test in determining
whether defendant and Walsh were cohabitating. Cohabitation requires more than briefly living
together or regularly engaging in sexual activity. Pursuant to the dictionary definition of
cohabitation, the couple must be "living together . . . as partners in life," or "dwelling together . .
. in the manner of husband and wife." As 6 Am Jur Proof of Facts 3d 765, § 2 states,
"[g]enerally, it can be said that courts consider cohabitation to mean a relationship between two
persons of the opposite sex who reside together in the manner of husband and wife, mutually
assuming those rights and duties usually attendant upon the marriage relationship."

Accordingly,
courts in other jurisdictions have considered a number of evidentiary factors in determining
whether a couple is cohabitating. See, e.g., Rose v Csapo, 359 NJ Super 53, 60-61; 818 A2d 340
(2002); Sanders v Burgard, 715 So 2d 808, 811 (Ala Civ App, 1998); Baker v Baker, 1997 ND
135; 566 NW2d 806, 811-812 (1997); Moell, supra at 752-753; In re Marriage of Herrin, 262 Ill
App 3d 573, 577; 634 NE2d 1168 (1994); McCarty v McCarty, 29 Pa D & C3d 687, 692 (1984);
Quisenberry v Quisenberry, 449 A2d 274, 276-277 (Del Fam Ct, 1982).


Whether cohabitation exists is a factual determination based on the totality of the
circumstances. In making a finding on cohabitation, courts should consider many factors. The
following are examples:

First, courts may consider the living arrangements of the couple and the
extent to which they shared a common residence.

Did they both keep personal items such as
clothing and toiletries at the residence?

Did they both have keys to the residence?

What mailing
address did each party use?

Did they share automobiles, or other personal property?

Were
household duties shared?

How long did such arrangements exist?

Second, courts may consider

the couple’s personal relationship and whether it appeared relatively permanent.

Did they
engage in sexual relations?

Was their relationship monogamous?

Was marriage contemplated?

Did they spend vacations and holidays together?

How did the couple represent their relationship
to their family, friends, and acquaintances, and how did those people view the relationship?

Third, courts may inquire into the couple’s financial arrangements.

Did they share expenses?

Did they maintain joint accounts?

Did they jointly own real or personal property?

Did one party
support the other?

Whether cohabitation exists is a question for the finder of fact. Because no
one factor defining a couple’s relationship is dispositive on the question of cohabitation, the factfinder
should consider the totality of the circumstances in each particular case.

II

Next, plaintiff argues that the trial court erred in finding that defendant and Walsh were
not cohabitating. We disagree. We review a trial court’s factual findings for clear error. MCR
2.613(C); Brucker, supra at 448. A finding of fact is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite and firm conviction that a
mistake has been made, giving due regard to the trial court’s special opportunity to observe the
witnesses. In re BZ, 264 Mich App 286, 296-297; 690 NW2d 505 (2004).

TOTALITY OF THE EVIDENCE

In finding that defendant and Walsh were not cohabitating, the trial court properly
considered the totality of the circumstances. Defendant first met Walsh in 2002, and they have
engaged in a monogamous, sexual relationship since 2004. After Walsh’s own marriage failed in
October of 2003, he moved to Georgia, where he lived with his sister and later purchased a
home. He moved back to Michigan for a period of time in May or June of 2004, but returned to
Georgia in September of 2004. He also spent the summer of 2005 living in Grand Rapids where
his ex-wife allowed him to live in their marital home after she moved out, although Walsh had
minimal utility charges at the home during this time period. Walsh obtained a Georgia driver’s
license and has no plans to move back to Michigan. He is the CEO of his own marketing firm
and travels extensively on a regular basis, almost exclusively in connection with business. For
example, a credit card statement revealed that in a single month, Walsh traveled to North
Carolina, South Carolina, Virginia, Florida, Nevada, Louisiana, Texas, Indiana, Kentucky, and
Alabama. Walsh estimated that he spends 40 weeks each year traveling for business.
When his schedule allows, Walsh stays at defendant’s house in Grand Rapids, Michigan,
where he sleeps in the same bedroom as defendant. Whenever possible, defendant and Walsh
exercise together, share meals, spend vacations and holidays together, and spend time with each other’s children. April Piper, defendant’s housemate in 2004 and 2005, testified that she saw
Walsh’s vehicle parked at defendant’s house overnight between two and four times per week.
Piper was uncertain, however, whether Walsh actually spent the night on all of those occasions,
as she acknowledged there were times when Walsh simply left his vehicle at the house while
away on business travel.

Walsh testified that he does not keep any personal belongings at defendant’s house,
toiletries or otherwise, and that while he brings clothing to defendant’s house, he does not leave
it there and takes it back to his own house for cleaning. He does not receive any mail at
defendant’s home, with the exception of his judgment of divorce and subpoena for this case.
Defendant’s friends testified that they were aware of defendant’s relationship with Walsh, but
that they saw no evidence indicating that Walsh lived with defendant. Walsh estimated that he
spent 30 to 35 nights with defendant in both 2004 and 2005, including vacations. Walsh also
stayed with defendant at her house for four nights in January of 2006, and for a long weekend in March of 2006.

Walsh asked defendant to move to Georgia to live with him on various occasions dating
back to 2004, and asked her to marry him on four or five occasions. However, defendant told
Walsh that she did not want to marry or live together with anyone until her spousal support
ENDS when her youngest child turns eighteen years of age. Defendant and Walsh both testified that
they have a committed, monogamous relationship and love each other. The couple does plan to
marry in the future.

Defendant and Walsh do not share bank accounts, credit cards, or a cellular telephone
plan. They do not contribute to each other’s bills, including daily living expenses or mortgage
payments. When the couple travels together, they share the expenses. Walsh has offered advice
to defendant regarding her rental properties and has assisted her with household projects related
to her own home and the rental properties.

Considering the totality of the circumstances, defendant’s relationship with Walsh is
more accurately characterized as a committed, long-distance dating relationship, involving
regular overnights together, than as two people "living together . . . as partners in life," or
"dwelling together . . . in the manner of husband and wife." Walsh maintains a separate
residence in Georgia, he does not keep personal items at defendant’s house, he does not regularly
receive mail there, the couple does not share personal property, they do not hold themselves out
as living together, and they are not financially interdependent. Accordingly, the trial court did
not clearly err in finding that defendant and Walsh were not cohabitating, and it properly denied
plaintiff’s request to terminate spousal support on that basis.

III


Finally, defendant cross-appeals the trial court’s denial of her request for attorney fees
and costs under MCR 3.206(C).3 We review a trial court’s ruling on a request for attorney fees
for an abuse of discretion. Gates v Gates, 256 Mich App 420, 437-438; 664 NW2d 231 (2003).
An abuse of discretion occurs when 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).


"In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13,
and court rule, MCR 3.206(C)." Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005).
Attorney fees in a divorce action may be awarded "when a party needs financial assistance to
prosecute or defend the suit." Id. That is, "a party should not be required to invade assets to
3 Defendant requested attorney fees and costs in her written closing argument following the
evidentiary hearing. Plaintiff’s argument on appeal that the request was untimely and improperly made is without merit.

MCR 3.206(C) does not require that a request for attorney fees be made
in a separate motion, and provides that a party may request attorney fees "at any time." MCR
3.206(C)(1).

satisfy attorney fees when the party is relying on the same assets for support." Gates, supra at
438. Pursuant to MCR 3.206(C)(2)(a), the party requesting the fees must allege facts sufficient
to show that she is "unable to bear the expense of the action, and that the other party is able to
pay."

We agree with the trial court that defendant did not demonstrate that she was unable to
bear the expense of the action, and that plaintiff was able to pay, in accordance with MCR
3.206(C)(2)(a). Defendant’s request for attorney fees and supporting affidavit were solely
comprised of unsubstantiated assertions that, aside from spousal support used for living
expenses, her income is "minimal," and that she would be unable to defend the action unless the
trial court awarded her attorney fees. The trial court properly concluded that, in light of
defendant’s recent purchase of three income-producing rental properties, she had not
demonstrated a need for financial assistance in defending the action. Defendant also asserted
that there was a wide disparity in the incomes of the parties, but the record does not support this
assertion. While defendant’s affidavit listed plaintiff’s alleged income from 1999-2003,
defendant did not supply income tax returns supporting those figures or any evidence regarding
plaintiff’s income in 2004 and 2005. Nor did defendant supply her own income tax returns to
substantiate the alleged disparity between the parties’ incomes.

Additionally, defendant argues that the trial court improperly relied on the "American
rule" in denying her request for attorney fees. We disagree. "Michigan follows the ‘American
rule’ with respect to the payment of attorney fees and costs.

Under the American rule, attorney

fees generally are not recoverable from the losing party as costs in the absence of an exception
set forth in a statute or court rule expressly authorizing such an award." Haliw v City of Sterling
Hts, 471 Mich 700, 706-707; 691 NW2d 753 (2005). The American rule is codified at MCL
600.2405(6), which provides that "[a]ny attorney fees authorized by statute or by court rule" may
be awarded as costs. See Id. at 707. Here, while the trial court stated that it was "a very big
supporter of the American rule, . . . that everybody has to carry the burden" of litigation, the
court acknowledged that attorney fees are authorized by MCR 3.206(C). The court found that
defendant failed to demonstrate her need for financial assistance in defending the action, as
required by MCR 3.206(C)(2)(a), and denied defendant’s request for attorney fees on that basis.
Affirmed.
/s/ Jane M. Beckering
/s/ Richard A. Bandstra
/s/ Patrick M. Meter
Posted here by Terry Bankert ...
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