REINSTATE DEFAULT JUDGEMENT OF DIVORCE

REINSTATING DEFAULT JUDGEMENT OF DIVORCE

#TERRY TALKS “Ideas worth sharing “

# 06012014, -TOPIC REINSTATING DEFAULT JUDGEMENT OF DIVORCE

Flint Divorce Attorney Terry R. Bankert P.C., 810-235-1970,  DATE: 06/01/14 TIME:5:00 a.m.

Issues:

Divorce;

Whether the trial court abused its discretion in reinstating the default judgment of divorce;

Draggoo v. Draggoo;The parties agree that we review this issue for an abuse of discretion.

See Dragoo v Dragoo, 223 Mich App 415, 429; 566 NW2d 642 (1997).

Division of the marital property;

Koy v. Koy;Even in light of the default, the trial court

was obligated to equitably divide the marital property. Koy v Koy, 274 Mich App 653, 659-660;

735 NW2d 665 (2007).

MCL 552.18 & MCL 552.101(4);Plaintiff was awarded

one-half of the portion of defendant’s pension that accrued during the marriage and defendant

was awarded one-half of the portion of plaintiff’s defined contribution account that accrued

during the marriage. This is consistent with the provisions of MCL 552.18 and MCL

552.101(4).

AlimonyThe awarding of spousal support is within the trial court’s discretion. Koy, 274 Mich

App at 660.

Court: Michigan Court of Appeals (Unpublished) UNPUBLISHED

May 6, 2014

Case Name: Vail v. Vail

No. 313431  ,Genesee Circuit Court , LC No. 11-301594-DO

PRIMARY SOURCE THIS ARTICLE e-Journal Number: 57060, THIS ARTICLE HAS MODIFIED THIS PRIMARY SOURCE

Judge(s): Per Curiam – Hoekstra, Sawyer, and Gleicher

REINSTATING DEFAULT JUDGEMENT

The court held that it was not persuaded that the trial court abused its discretion in reinstating the default judgment of divorce.

DIVISION OF MARITAL ESTATE

It also held that the trial court equally divided the marital estate. Further, the court was not persuaded that the trial court erred in denying alimony to the defendant-husband.

BACKGROUND

The parties were married in 1989 and the plaintiff-wife filed for divorce in 2011. Defendant was served on 8/15/11, and failed to file an answer. He claimed he was served while in court on a criminal matter. He turned the documents over to his criminal defense attorney who assured him that he "would handle it" but did not. Then, he secured new counsel who moved to set aside the default. On 5/2/12, the trial court issued an order granting the motion to set aside the default, conditioned upon the filing of an answer and the payment of $700 to plaintiff's counsel within 30 days. After the deadline passed, defendant had only paid $200 of that amount and plaintiff's counsel filed a motion to show cause as to the non-payment. At the July 9 hearing, the matter was adjourned to July 12, the scheduled trial date. On July 12, defendant still had not paid the remaining balance and the trial court entered a second default. The trial court permitted defense counsel to argue the merits of the proposed judgment of divorce. On appeal, defendant's issue was whether the trial court erred in reinstating the default. First, the court noted that he defaulted not once, but twice in this case. Second, the trial court imposed the $700 assessment under the provisions of MCR 2.603(D)(4) with the requirement that it be paid within 30 days. More than 2 months later, only $200 had been paid. Nor was the court persuaded by defendant's argument that there had been no mention of the possibility of reinstating the default at either the June 20 settlement conference or the July 9 show cause hearing. He failed to abide by the conditions imposed to set aside the original default and plaintiff had filed a motion to show cause. As to whether the trial court indicated that it was considering reinstating the default, the court held that defendant should have known that it was a very real possibility due to his noncompliance with the May 2 order. The court was equally unpersuaded by his argument that the trial court failed to respond to the offer made in the courtroom that defendant's sister was willing to access her line-of-credit to pay the remaining $500. Defendant had time in advance of the last minute to raise the necessary funds to comply with the trial court's order and failed to do so. Affirmed.

REINSTATING DEFAULT JUDGEMENT OF DIVORCE

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POWER OF ATTORNEY for Parent going into Drug Rehab

AVVO QUESTION 10/26/13:I am on probation if I go into rehab my ex will fight for my daughter. My family stated of need be they will take my daughter.What do I do?

ANSWER: DELEGATE YOUR PARENTAL POWERS TO A FAMILY MEMBER, CALLED AN AGENT,  WHILE YOU ARE IN REHAB.

I will presume you are on a criminal probation and you have a drug problem. Since you stated your concern your” ex will fight for your daughter “ it appears your have physical custody of your daughter. If your custody is challenged the criminal probation and drug use will work against you in a Best Interest Factor analysis MCL  722.23 . On these facts  being in rehab should not. What is important is that your daughter is taken care of. Do not leave the child with a family member without  also giving them legal authority through a power of attorney as your agent.

DELEGATION OF PARENTAL POWERS

I found the following information.see sources below.

Step 1: Determine who you want to name as agent ..

An agent should be someone in whom you have  highest degree of confidence.

Step 2: Determine the extent of the powers delegated to the agent.

Most parents will wish to delegate full power to the agent to do everything required for the child’s care.

SEE-MCL.700.5103  Delegation of powers by parent or guardian

Sec. 5103.  (1) By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.

(2) If a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides a delegation under this section is effective until the thirty-first day after the end of the deployment.

(3) If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney and provide the court the name, address, and telephone number of the attorney-in-fact.

As amended by 2000 PA 54 (eff. Apr 1, 2000), 2004 PA 93 (eff. May 7, 2004).

Step 3: Include examples of the types of powers that you are  delegating.

Some examples of power delegated to the agent are the power to consent to

• any medical, diagnostic, or surgical procedure
• any dental procedure
• use of any medication or other items related to the child’s health

Step 4: Have the document signed, witnessed, and notarized.

While a delegation can be executed without  any judicial proceedings, it must be signed, witnessed, and notarized.

When to Use

A delegation of parental powers is frequently used when parents take a vacation or when a parent joins the armed forces. A delegation of parental powers may also be used to avert a guardianship proceeding if a parental surrogate is needed for a relatively short time due to a parent entering drug treatment or being sent to prison.

You should desire to vest in the agents full powers as a substitute parent  to do anything and everything required for the child’s care You should the agent as your attorney-in-fact to do any of the things you, as parent could do on behalf of your child, including, but not limited to the following:

1. Give parental consent to any medical, diagnostic, or surgical procedure and/or other treatment of any type or nature;
2. Give parental consent to any dental procedure;
3. Give parental consent to admission to any hospital or medical center;
4. Give parental consent to the use of any drugs, medication, therapeutic devices, or other medicines or items related to the child’s health; and
5. The power in general to take and authorize all acts with respect to our your health and wellbeing, the same as we could do.

Primary Sources

http://www.icle.org/modules/formbank/linked_display.aspx?ID=PRB1238&Display=HowToKit

SEE-MCL.700.5103  Delegation of powers by parent or guardian

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

#TERRY TALKS “Ideas worth sharing “

#GUARDIANS DENIAL OF GRANDPARENT VISITATION WRONG!

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

DATE: 10/20/13

TIME:12:00 PM

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

(Michigan Court of Appeals) agree

see: www.terrytalks.com

Issues:

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

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

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

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

COURTS INVOLVED

Court: Michigan Court of Appeals (Published)

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

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

PRINCIPAL SOURCE e-Journal Number: 55461

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

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

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

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

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

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

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

THE LOWER COURT DID NOT DIFFERENTIATE BETWEEN A GUARDIAN AND PARENT

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

THE LEGISLATURE DID NOT INCLUDE GUARDIAN IN THE LAW

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

GUARDIANS DO NOT GET THE SAME DEFERENCE A PARENT WOULD.

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

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

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

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

PARENTS HAVE A FUNDAMENTAL LIBERTY INTEREST GUARDIANS DO NOT

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

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

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

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

SOURCE

[1]

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

[2]

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

andHEATHER MCCALLISTER,  Intervening-Plaintiff-Appellant,  FOR PUBLICATION

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

And ANGELA TYNDALL, Guardian of XXXXX, Minor,  

Intervening-Defendant-Appellee.

[trb]

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

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com --

-TERRYTALKS on facebook -https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter -www.twitter.com/terrybankert -

-MICHIGAN FAMILY LAW ADVOCATE -http://terrybankert.blogspot.com/ -

- BANKRUPTCY AND MICHIGAN FAMILIES - http://dumpmycreditors.wordpress.com/ -

- TERRY ON YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY  on FLICKR -http://www.flickr.com/photos/30366181@N05/-

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