MICHIGAN COURT OF APPEALS DECISIONS
PUBLISHED
AND UNPUBLISHED SEE: http://courts.mi.gov/courts/coa/opinions/pages/zipfiles.aspx
(Note: published opinion summaries have been reprinted with permission from the Michigan Judicial Institute’s “IMPACT” publication.)
Kalin
v Fleming, published
opinion of the Court of Appeals, released November 21, 2017. (Docket No.
336724).
REVOCATION
OF PATERNITY ACT (RPA) – THREE-YEAR DEADLINE FOR REVOCATION OF ACKNOWLEDGMENT
OF PARENTAGE (AOP) AND EXTENSION
Where the parties signed an AOP and the
defendant-mother “intentionally did not tell [the plaintiff-acknowledged
father] that there was a possibility that he was not the child’s father[,]” the
trial court erred in granting the defendant’s motion for an extension of time to
set aside the plaintiff’s AOP on the basis of the defendant’s own
misrepresentation and misconduct; “the trial court erred by determining that
MCL 722.1443(12) allowed an extension[,]” because “MCL 722.1443(12) requires
that the person requesting the extension show that [he or] she did not timely
file the action because of one of the five listed exceptions[]”
to the general rule of MCL 722.1437(1) that an action to revoke parentage must
be filed within three years of the child’s birth or one year of the date that
the AOP was signed. Kalin v Fleming,
___ Mich App ___, ___ (2017). “While [the plaintiff’s] mistaken belief that he
was the child’s father may constitute a mistake of fact,” the defendant “did
not allege that she was previously unaware of the child’s
paternity, nor did she allege that a mistaken belief contributed to her delay[;
t]hus, [her] affidavit did not describe a mistake of fact that prevented her
from seeking revocation of the acknowledgment of parentage within the
three-year deadline.” Id. at ___.
McRoberts
v Ferguson, published
opinion of the Court of Appeals, released November 28, 2017. (Docket No.
337665).
CHILD
CUSTODY – PROPER CAUSE OR CHANGE OF CIRCUMSTANCES AND CHANGE OF CUSTODY
Where the plaintiff-mother “was found in contempt of
court [for violations of visitation orders] on three separate occasions, the
last of which resulted in a 30-day jail sentence[,] . . . [and] there were
ongoing ‘visitation complaints’ . . . including that [the] plaintiff failed to
produce the child at the airport for a prearranged pick-up, causing [the
defendant-father’s] wife to needlessly fly from California to Detroit[,]”
sufficient allegations of contempt or visitation complaints existed to
constitute proper cause to modify the existing child custody order. McRoberts v Ferguson,
___ Mich App ___, ___ (2017). Further, the “plaintiff’s interference with the
child and [the] defendant’s relationship” constituted “an event that ‘could
have a significant effect on the child’s life to the extent that a reevaluation
of the child’s custodial situation should be undertaken[;]’” specifically,
“[i]n addition to the parenting-time violations, [the] plaintiff repeatedly
facilitated the child calling her now ex-boyfriend ‘dad’ and calling [the]
defendant by his first name.” Id. at ___ (citation omitted). Additionally,
considering that the defendant addressed medical issues for the child, such as
untreated cavities and immunizations, provided a counselor for the child, and
helped to greatly improve her recognition of sight words, in addition to the
defendant’s new living situation (land-based military duty, instead of
deployment at sea), “it [could not] be said that the evidence clearly
preponderated against the trial court’s finding that there was a sufficient
change of circumstances, allowing the court to consider a modification of the
custody arrangement.” Id. at ___. Finally, “the trial court [did not err] by
finding that [the] defendant proved by clear and convincing evidence that
granting him sole legal and physical custody was in the child’s best interests”
where “there were legitimate concerns with [the] plaintiff’s care of the child,
including untreated cavities and numerous unexcused absences from school[,] . .
. [and where the] plaintiff’s repeated acts of contempt relative to parenting
time were troubling and reflected an inability by [the] plaintiff to facilitate
and encourage a close and continuing parent-child relationship between [the]
defendant and his daughter.” Id. at ___ (noting that “[c]onversely, there was no
evidence suggesting that [the] defendant had interfered with the relationship
between [the] plaintiff and the child[]”).
Sims
v Verbrugge, published
opinion of the Court of Appeals, released December 5, 2017. (Docket No. 337747).
CHILD
CUSTODY – AFFIDAVIT OF PARENTAGE (AOP), CHANGE OF CUSTODY, AND BURDEN OF PROOF
“Courts cannot treat the legal custody granted by
signing an [AOP] the same as a judicial determination because[] . . . MCL
722.1006 provides that the grant of initial custody through the execution of an
AOP ‘shall not, by itself, affect the rights of either parent in a proceeding
to seek a court order for custody or parenting time[;]’” therefore, because the
parties’ AOP was not a judicial determination, no existing judgment or order
regarding legal custody existed, and the trial court erred by requiring the
defendant-father to demonstrate by a preponderance of the evidence proper cause
or a change in circumstances, the standard required to modify or amend an
existing judgment or order under MCL 722.27(1)(c). Sims v
Verbrugge, ___ Mich App ___, ___ (2017). Further, “[t]o the
extent that the trial court reasoned that MCL 722.1 and MCL 722.2 provided that
[the plaintiff-mother] received sole legal custody of [the child] as a result
of [the child] being an illegitimate child, . . . this interpretation [wa]s at
odds with MCL 722.1004’s mandate that a child that is the subject of an AOP is
treated as a child born in wedlock and not as illegitimate.” Sims,
___ Mich App at ___ (remanding for reconsideration of whether the defendant was
entitled to legal custody, to be treated as an initial custody evaluation
without a prior existing order). However, “[r]egarding [the child’s] physical
custody, . . . a previous order existed, and the trial court did not err by
requiring [the] defendant to demonstrate proper cause or a change in
circumstances to justify reconsideration of the order.” Id.
at ___ (additionally holding that the trial court did not err in declining to
hear the defendant’s argument as to a change in physical custody because his
argument at the time rested on contingent future events, not a change in
circumstances that already occurred).
Ludwig
v Ludwig, published
opinion of the Court of Appeals, released December 12, 2017. (Docket No.
336938; 336978).
CHILD
CUSTODY – ORDER FOR FAMILY THERAPY NOT MODIFICATION OF PARENTING TIME
The trial court’s order directing “the minor
children and [the defendant-father] to engage in family therapy with
therapists, all by way of video conference, as part of the reunification
process without first holding an evidentiary hearing[] . . . did not modify
parenting time[;]” accordingly, “the trial court’s decision did not amount to
clear legal error because the order d[id] not affect parenting time and was a
proper exercise of the trial court’s broad power over the parenting dispute”
under MCL 722.27(1)(e). Ludwig v Ludwig, ___ Mich App ___, ___ (2017) (holding that “because the order
appealed was not an order modifying parenting time the strict procedural
requirements of MCL 722.27(1)(c) were not required,” but noting that if the
trial court subsequently considered a change to parenting time, it would “be
required to hold an evidentiary hearing to address [the plaintiff-mother’s]
concerns and accept additional evidence regarding the best interests of the
children[]”).
Rettig
v Rettig, published
opinion of the Court of Appeals, released January 23, 2018. (Docket No.
338614).
CHILD
CUSTODY – AGREEMENT FOLLOWING MEDIATION, BEST-INTEREST FACTORS, AND ESTABLISHED
CUSTODIAL ENVIRONMENT
If the parties present the court with an agreement
regarding child custody and visitation, the court is “empowered to accept it”
and “‘need not expressly articulate each of the best interest factors[ listed
under MCL 722.23; i]mplicit in the court’s acceptance of the parties’ agreement
is its determination that the arrangement is in the child’s best
interest.’” Rettig v Rettig, ___ Mich App
___, ___ (2018) (citation omitted). “[T]he court remains obligated to come to
an independent conclusion that the parties’ agreement is in the child’s best
interests, but . . . the court is absolutely permitted to accept that agreement
where the dispute was resolved by the parents[.]” Id.
at ___ (noting that “[a]lthough the trial court is not necessarily constrained
to accept the parties’ stipulations or agreements verbatim, the trial court is
entirely permitted to accept them and presume at face value that the parties
actually meant what they signed,” and concluding that “[t]here [was] no
coherent reason presented why the trial court could not” accept the parties’
mediated agreement, including provisions concerning child custody and
visitation). Additionally, in light of the parties’ agreement, “the trial court
was [not] required to make a finding regarding the minors’ established
custodial environment[;]” “[t]he requirement of making an express determination
of whether there is an established custodial environment is as inapposite to
effectuating an agreement reached by the parties as is the requirement of
conducting intensive fact finding.” Id. at ___.
Griffin
v Griffin, published
opinion of the Court of Appeals, released January 30, 2018. (Docket No.
338810).
CHILD
CUSTODY – CHANGE OF ESTABLISHED CUSTODIAL ENVIRONMENT AND BURDEN OF PROOF WHEN
BOTH PARTIES SEEK CUSTODY CHANGE
“[T]he trial court erred by applying the
preponderance-of-the-evidence standard instead of the statutorily mandated
clear-and-convincing-evidence standard to the best-interests determination
under MCL 722.23” when “the court was faced with a somewhat unique problem:
everyone agreed that maintaining the current custodial arrangement was not in
the child’s best interests” and “[b]oth parties moved for a change in custody,
advancing their own arguments in favor of receiving primary custody of their
son during the school year.” Griffin v Griffin, ___ Mich App ___, ___ (2018). “The court should have . . .
applied the clear-and-convincing evidence standard when determining whether to
maintain the status quo or enter an order changing the child’s established
custodial environment” because “the trial court is not tasked with comparing
the parties’ suggested changes to each other and determining which is better,”
but “[r]ather, in order to make a change to the established custodial
environment, the trial court must find that the change is in the child’s best
interests when compared to the status quo.” Id. at ___.
CHILD
CUSTODY – CHANGE OF ESTABLISHED CUSTODIAL ENVIRONMENT AND CONSIDERATION OF
CURRENT AND FUTURE ABSENCE DUE TO ACTIVE DUTY STATUS
Under MCL 722.27(1)(c), “a trial court is only prohibited
from considering a parent’s current, not future[,] absences from the child due
to his or her active duty status[;]” accordingly, “a trial court [is not
precluded] from considering a parent’s anticipated future relocation due to his
or her active duty status when making a determination of a child’s best
interest[.]” Griffin v Griffin, ___ Mich App ___, ___ (2018) (holding that “because [MCL
722.27(1)(c)] only prohibits the court from considering current absences due to
active duty status, . . . the trial court erred by interpreting and applying
MCL 722.27(1)(c) so as to wholly preclude consideration of [the defendant’s]
anticipated future relocation due to her military service”).
UNPUBLISHED
OPINIONS
Ferrante v
Polovina,
unpublished opinion of the Court of Appeals, released October 19, 2017. (Docket
No. 333457). The trial court did not err in granting defendant’s motion to
compel plaintiff to pay defendant for extra-curricular activities for the
parties’ minor children because the Judgment of Divorce (JOD) provided that
such payment would be equally shared by the parties, and plaintiff was aware of
the activities when the JOD was entered and did not object.
Williams v
Cannon,
unpublished opinion of the Court of Appeals, released October 24, 2017. (Docket
No. 335922). The trial court did not err in its consideration of the friend of
the court’s written report and recommendation regarding custody and parenting
time because the court also, through an evidentiary hearing, conducted its own
best-interest analysis and made its own independent findings of fact and conclusions
of law.
Hazen v
Phillis,
unpublished opinion of the Court of Appeals, released November 2, 2017. (Docket
No. 337106). The trial court erred in modifying the existing custody order
without first establishing proper cause or a change of circumstances to warrant
modification.
Nordhielm
v Dapena-Baron,
unpublished opinion of the Court of Appeals, released November 14, 2017.
(Docket No. 335877). The trial court did not err in its finding that sharing
joint legal and physical custody would not be in the child’s best interests due
to the ongoing conflict between the parties.
Joslyn v
Scott, unpublished
opinion of the Court of Appeals, released November 21, 2017. (Docket No.
337809). Although the trial court erred in failing to determine whether an
established custodial environment (ECE) existed before making a custody
determination, the record supports the trial court’s belated assertion that an
ECE existed with both parties, and therefore the trial court needed only to
find by a preponderance of the evidence that remaining in the current shared
custodial environment was in the child’s best interests.
Adkins v Piechan, unpublished opinion of the Court of Appeals, released November 21, 2017.
(Docket No. 337745). The trial court erred in determining that evidence of
defendant’s relationships with numerous high-school-aged children could have a
significant effect on the children’s well-being did not meet the burden of
proof for proper cause or change in circumstances warranting a change in
custody and parenting time.
Burnett v
Ahola and Ahola,
unpublished opinion of the Court of Appeals, released December 7, 2017. (Docket
No. 338618). Defendants’ consent to a custody order and parenting time order
effectively waived their right to argue plaintiff’s fraud in a motion for
reconsideration of an earlier ROPA judgment because the consent order showed
that defendants were preparing to work toward a co-parenting relationship with
plaintiff rather than revoke his parental rights entirely.
Robinson v
Robinson,
unpublished opinion of the Court of Appeals, released January 2, 2018. (Docket
No. 335043). The trial court could adopt a friend of the court child support
recommendation which calculated plaintiff’s variable annual income according to
2013 MCSF 2.01(A),(B) as an average of three prior years’ self-employment
income excluding the most recent year because defendant failed to provide all
necessary documentation for the most recent tax year to the friend of the
court.
Russian v.
Porter,
unpublished opinion of the Court of Appeals, released January 18, 2018. (Docket
No. 339288). The trial court did not err in granting joint custody and equal
parenting time of the parties’ 8-month-old child when evidence presented
affirmed that the child was thriving on a diet of both breast milk and formula,
and that the child was well cared for and in a stable environment with both
parties.
Harner v
Harner,
unpublished opinion of the Court of Appeals, released January 23, 2018. (Docket
No. 338746). The trial court’s decision to order payment for reunification
therapy in lieu of child support constitutes a deviation from the MCSF, which
was improper without first establishing that application of the formula would
be unjust or inappropriate and then setting forth the requirements stated under
MCL 552.605(2).
Dubin v
Fincher,
unpublished opinion of the Court of Appeals, released January 30, 2018. (Docket
No. 339175). The trial court’s denial of defendant’s motion for expanded
parenting time and a reunification plan does not “affect custody” for purposes
of MCR 7.202(6)(a)(iii), and, therefore, defendant does not have an appeal of
right over which the Court of Appeals could exercise jurisdiction pursuant to
MCR 7.203(A)(1).
Friend of the Court Bureau Administrative Memoranda
2018-01 (March 8, 2018) Adjusting Current Support Due to Incapacitation
This memorandum recommends actions that courts and FOC staff should take regarding child support orders when parents may be incapacitated and unable to satisfy their child support obligations due to disability, mental incompetency, serious injury, debilitating illness, or incarceration.
2018-003 (February 16,
2018) OCS Customer Complaint Process
Note: This
Memorandum replaces Memorandum 2006-046 OCS Customer Complaint Process.
This IV-D
Memorandum announces changes to the OCS customer complaint process including
forms required, method of submitting complaints, and the OCS process for
investigating and responding to complaints.
2018-002 (January 17,
2018) Contract Performance Standards
(CPS) Evaluation Process
This IV-D
Memorandum introduces Section 1.25, “Contracts,” in the Michigan IV-D Child
Support Manual. Section 1.25 discusses the CPS evaluation process. This is new
information; OCS encourages PA and FOC staff to read this memorandum and
Section 1.25. In FY 2020, OCS plans to start the evaluation process for FY
2019.
2018-001 (January 2,
2018) Overpaid Support Obligations
Resulting from the Michigan Child Support Enforcement System (MiCSES)-Bridges
SyncAssist Process
This IV-D Memorandum
explains instances where non-custodial parents (NCPs) unintentionally overpaid
their medical support obligations as a result of the synchronization of
assistance records between MiCSES and Bridges in the MiCSES 9.5 Release (June
15, 2017). This memorandum provides guidance for FOC staff who have not yet
resolved NCP overpayments created as a result of the synchronization in the 9.5
release. It also provides recommended actions IV-D staff may take to identify
and resolve IV-D cases with an NCP overpayment or a potential NCP overpayment
of medical support.
2017-028 (December 4,
2017) Implementation of the IV-D
Learning Management System
This IV-D
Memorandum announces the implementation by OCS of a Learning Management System
(LMS) to track IV-D child support program training participation.
2017-027 (December 4,
2017) Federal Regulation Changes to Case
Closure and Other Minor Case Closure Updates
On December
20, 2016, the federal Office of Child Support Enforcement (OCSE) published the
final rule: Flexibility, Efficiency, and Modernization in Child Support
Enforcement Programs (final rule). The final rule requires state IV-D programs
to implement the changes addressed in this IV-D Memorandum by December 20,
2017. The Michigan Child Support Enforcement System (MiCSES) 9.7 Release on
December 8, 2017 implemented these changes, including: IV-D agencies must close
IV-D cases if the referral was from Medicaid for only medical care services and
the child is eligible for Indian Health Services; and the IV-D program must
make a good-faith effort to contact non-assistance IV-D applicants by two
different methods prior to closing the IV-D case if the IV-D worker needs more
information to proceed with the case. OCS has alos updated the following
sections of the Michigan IV-D Child Support Manual to reflect the mandatory
changes in the final rule: Section 2.05, “Referrals and Applications”; and
Section 3.50, “Case Closure.” In addition to changes related to the new final
rule, OCS has updated policy to remove intergovernmental cases, both initiating
and responding, from automatic case closure for failure to locate the non-custodial
parent.
2017-026 (December 4,
2017) New Intergovernmental Policy
Sections and Revisions to Intergovernmental Forms
Note: This
Memorandum replaces Memorandum 2016-001, 2014-018, 2008-028, 2005-005
New Intergovernmental Policy Sections and Revisions to Intergovernmental Forms.
This IV-D
Memorandum announces updates to Section 7.15, “International,” and the
introduction of the following new sections of the Michigan IV-D Child Support
Manual: Section 7.01, “Intergovernmental Overview”; Section 7.05, “Initiating
Cases”; and Section 7.10, “Responding Cases.” This memorandum also introduces
revisions to the federally approved standard intergovernmental forms, including
updates to existing forms and the introduction of new forms. The new and
revised forms were available with the Michigan Child Support Enforcement System
(MiCSES) 9.7 Release on December 8, 2017.
2017-025 (December 4,
2017) Excluding Supplemental Security
Income (SSI) from Financial Institution Data Match (FIDM) Liens
This IV-D
Memorandum announces policy and system updates required to comply with a
revised federal requirement for IV-D programs. IV-D programs must automatically
prevent SSI and concurrent SSI and Social Security Disability Insurance (SSDI)
benefits from being garnished in the FIDM process. In the MiCSES 9.7 Release
(December 8, 2017), OCS added functionality to identify NCPs in the FIDM process
who are receiving or potentially receiving SSI payments, affecting information
loaded on the Financial Assets (ASFN) screen, as well as Administrative Levy
(ADLV) activity chains opened after December 8, 2017. In addition, this
memorandum announces updates to Section 6.27, “Liens – FIDM/MSFIDM,” of the
Michigan IV-D Child Support Manual to ensure OCS’s compliance with the federal
requirement. Finally, this memorandum announces revisions to two FIDM forms:
The Request for Administrative Review of Lien (FEN325); and The Results of
Administrative Review (FEN326).
