MICHIGAN COURT OF APPEALS DECISIONS
PUBLISHED AND UNPUBLISHED SEE: http://courts.mi.gov/courts/coa/opinions/pages/zipfiles.aspx
PUBLISHED
OPINIONS (Note: published opinion summaries
have been abbreviated with permission from the Michigan Judicial
Institute’s “IMPACT” publication.)
Taylor
v Taylor, published
opinion of the Court of Appeals, released February 22, 2018. (Docket No.
336193).
PATERNITY
– STATUTE OF LIMITATIONS NOT APPLICABLE FOR PRESUMED FATHER IN DIVORCE ACTION
MCL 722.1441(2) permits a presumed father to raise
the issue of paternity “in a paternity action filed within three years of the
child’s birth OR in a divorce action (without regard to how old the child
is).” Taylor v Taylor, ___ Mich App ___, ___ (2018) (holding the three-year
limitation in MCL 722.1441(2) “does not apply if the issue is raised in a
divorce action” between the presumed father and the mother).
Madson
v Jaso, order of
the Michigan Supreme Court, released March 21, 2018. (Docket No. 154529).
CUSTODY
– MAKEUP PARENTING TIME ORDER AND POSTJUDGMENT ORDER AFFECTING THE CUSTODY OF A
MINOR
The Michigan Supreme Court vacated the Court of
Appeals judgment in Madson v Jaso, 317 Mich App 52 (2016), and remanded
the case to determine whether the [circuit court order] that directed that the
plaintiff would have parenting time every other weekend ‘affect[ed] the custody
of a minor’ permitting appeal within the meaning of MCR
7.202(6)(a)(iii).” Madson v Jaso, ___ Mich ___ (2018).
Ramamoorthi
v Ramamoorthi, published
opinion of the Court of Appeals, released March 8, 2018. (Docket No. 336845).
UNIFORM
CHILD-CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) – JURISDICTION TO MAKE
A CUSTODY DETERMINATION
“[T]he focus of the UCCJEA concerns a child’s actual
presence, not his or her intent to remain”; therefore, “regardless of whether
the children properly could be considered residents of Michigan because they
intended to return there, the trial court erred when it found that it had
jurisdiction over the parties’ custody dispute under the UCCJEA” because “the
children had ‘lived with’ a parent in India for more than six consecutive
months . . . immediately before plaintiff filed [the] action,” and thus India
“qualifie[d] as the children’s home state [as defined in MCL 722.1102(g)] under
the UCCJEA.” Ramamoorthi v Ramamoorthi, ___ Mich App ___, ___ (2018).
Zaid Safdar v. Donya Aziz,
published opinion of the Michigan Supreme Court, released March 27, 2018
(Docket no. 156611).
Child Custody – Motion for
Change of Domicile and Pending Appeal of Divorce Judgment
“[A] circuit court has
jurisdiction to consider a motion to change the domicile of a minor child
established by a custody award in a divorce judgment while that underlying
judgment is pending on appeal” Safdar v Aziz, ___ Mich
___, ___ (2018).
Sheardown
v Guastella, published opinion of the Court of Appeals,
released May 15, 2018. (Docket No. 338089).
CHILD
CUSTODY ACT – CONSTITUTIONALITY OF PARENT DEFINITION
There was no equal protection violation because at
the time the case was filed (1) Michigan was required to recognize same-sex
marriages, (2) [the Court of Appeals] had already held that the definition of
‘parent’ under MCL 722.22(i) did not run afoul of [Obergefell v Hodges,
576 US ___ (2015)] because ‘that definition applies equally to same-sex and
opposite-sex married couples,’ (3) the parties never availed themselves of the
marriage laws of other states that recognized same-sex marriages, and (4) the
parties’ relationship had, at a minimum, ended some two-and-a-half years
before, and approximately a year-and-a-half prior to the issuance of Obergefell”.” Sheardown v
Guastella, ___ Mich App ___,
___ (2018).
UNPUBLISHED
OPINIONS – Under Michigan law, unpublished
cases are not considered authoritative. They are cited here to illustrate
points of interest for future similar cases.
Bowman
v Bowman, unpublished opinion of the Court of Appeals, released February 13,
2018. (Docket No. 339702). The trial court properly exercised its discretion to
deny a stay of child-custody proceedings in Michigan after following UCCJEA protocol and communicating with the
Georgia court and determining that Georgia is the more appropriate forum to
resolve the dispute.
Adkins
v Piechan, unpublished opinion of the Court of Appeals, released February 20,
2018. (Docket No. 337745). A parent with sole legal custody may move the
child(ren)’s domicile further than 100 miles from the location at the time of
order entry - the 100 mile rule applies to joint legal custody but not sole
legal custody.
Lowe
v Lowe, third-party Defendants-Appellants Steve and Gail Lowe, unpublished
opinion of the Court of Appeals, released February 20, 2018 (Docket No.
340128). The trial court did not err in denying third-party defendants
grandparenting time. MCL 722.27b(4)(b). Grandparents’ general claim that it
would be a “good thing” for them to have contact with the child did not rebut
the presumption by a preponderance of the evidence that the “fit” custodial
parent’s decision to deny grandparenting time does not create a substantial risk of harm to the child.
Mason
v Shier (Docket No. 340194) and Mason v Stephens (Docket No.
340216), unpublished opinion of the Court of Appeals, released February 20,
2018. Plaintiff failed to prove by a preponderance of the evidence that a
change in domicile was warranted when insufficient evidence was submitted
regarding an improvement in the children’s
quality of life, and the proposed modifications of parenting time were
inadequate for preserving and fostering the existing relationships between the
children and their fathers.
Kanter
v Kanter,
unpublished opinion of the Court of Appeals, released February 22, 2018.
(Docket No. 339159). The trial court erred in granting defendant’s motion to
change (i.e. reinstate) the originally ordered parenting time without first
conducting a best interests analysis.
Perry
v Malpass, unpublished opinion of the Court of Appeals, released March 13,
2018. (Docket No. 340144). The trial court did not err when adopting a Friend
of the Court recommendation changing a six-weeks-on/four-weeks-off schedule
between Michigan and North Carolina when the referee found that there was
proper cause for a change in parenting time because the child was starting
school and subsequently evaluated the established custodial environment,
applied the Vodvarka standard, and
properly evaluated the best interest factors.
Hersha
v Hersha, unpublished opinion of the Court of Appeals, released March 13,
2018. (Docket No. 339643). The trial court found that an established custodial
environment (ECE) existed only with the plaintiff because the children had been
residing exclusively with him for the proceeding seven months. How the
custodial environment came to exist – in this case by temporary order – is
irrelevant in determining ECE.
Matthews
Allen v Allen, unpublished opinion of the Court of Appeals,
released March 13, 2018. (Docket No. 338365). Plaintiff was not denied due
process when the trial court changed legal custody based on a motion to suspend
parenting time because the plaintiff herself responded to the motion as a
motion to change custody.
Szymanski
v Szymanski, unpublished opinion of the Court of Appeals,
released March 13, 2018. (Docket No. 336915). The trial court did not abuse its
discretion by imputing additional potential income to defendant because
relevant imputation factors from the 2013 MCSF were considered, including
defendant’s prior employment and wages, degree, good health, and diligence in
seeking employment.
Leadbetter
v Leadbetter, unpublished opinion of the Court of Appeals,
released March 15, 2018. (Docket No. 333939). While plaintiff might not be
expected to physically force the 13-year-old child to attend therapeutic
parenting time sessions with the therapist and defendant, the trial court
recognized that by failing to institute appropriate disciplinary measures or
establish other consequences for his refusal to attend, plaintiff was
effectively allowing the child to decide whether to attend the therapeutic
sessions – in violation of the trial court’s order.
Emmons
v Vancourt, unpublished opinion of the Court of Appeals,
released March 15, 2018. (Docket No. 339528, 339678). The trial court did not
err in modifying the parenting time order because it correctly applied the Vodvarka standard required for parenting
time changes that can amount to a change in the established custodial
environment, and then it analyzed the best-interest factors.
Loga
v Loga, unpublished opinion of the Court of Appeals, released March 15,
2018. (Docket No. 339975). The trial court did not abuse its discretion by
awarding defendant primary physical custody and sole legal custody, and
parenting time to plaintiff with restrictions including no unsupervised time
with plaintiff’s husband and no use of corporal punishment. Child Protective
Services (CPS) had substantiated plaintiff’s husband abusing the minor child
when he beat the child with a belt and left bruises, and CPS had substantiated
plaintiff for failure to protect the child, yet plaintiff failed to recognize
how any of these events were damaging to the minor child.
Simmons
v Simmons, unpublished opinion of the Court of Appeals, released March 15,
2018. (Docket No. 340499). Changes such as plaintiff cohabitating with her new
partner and plaintiff and her new partner appropriately treating their respective
mental illness concerns do not rise beyond normal life changes that occur
during the life of a child and, under the Vodvarka
standard, do not equate to proper cause or a change in circumstances that
would warrant a reevaluation of custody.
Mbombow
v Fogha Moma, unpublished opinion of the Court of Appeals,
released March 20, 2018. (Docket No. 339436). The parties’ prior cohabitation
did not create an established custodial environment (ECE) when circumstances
had changed after their cohabitation.
Flint
v Sweetin, unpublished opinion of the Court of Appeals, released March 27,
2018. (Docket No. 340043). When parents are unable to cooperate and generally
agree concerning important decisions affecting the welfare of the child, such
as which school district the child will attend and accomplishing regular
parenting time exchanges without the assistance of a third party or agency,
joint legal custody is inappropriate.
Kalynovych
v Kalynovych, unpublished opinion of the Court of Appeals,
released March 27, 2018. (Docket No. 338758). The trial court did not err in
awarding sole legal custody to plaintiff and parenting time to defendant when many
best interest factors weighed as neutral, but plaintiff had a history of being
primary caregiver both emotionally and financially, defendant had a history of
committing domestic violence against plaintiff, and defendant used disparaging
language about plaintiff to the child.
Kimball
v Pearson, unpublished opinion of the Court of Appeals, released March 29,
2018. (Docket No. 335639). The trial court erred in substantially reducing
defendant’s parenting time when it was not a subject of the hearing, and the
reduction violates the statutory requirement that “parenting time shall be
granted to a parent in a frequency, duration, and type reasonably calculated to
promote a strong relationship between the child and the parent granted parenting
time” [MCL 722.27a(1)]. The loss of defendant’s parenting time when school is
in session should be made up by increased parenting time at less disruptive
times.
Howland
v Howland, unpublished
opinion of the Court of Appeals, released April 12, 2018. (Docket No. 339838).
If a determination of where a child will attend school will alter the
established custodial environment, the trial court must find that the school
determination is in the minor child’s best interests by clear and convincing
evidence.
Dardy
v Dardy,
unpublished opinion of the Court of Appeals, released April 12, 2018. (Docket
No. 339775). While multiple unsubstantiated allegations of abuse to Child
Protective Services may be found harmful to a child, other factors must also be
considered during a best-interests analysis for change in custody, and the
unsubstantiated allegations do not necessarily control the custody award.
Medford
v Verkade, unpublished opinion of the Court of Appeals, released April 19,
2018. (Docket No. 340554). The defendant’s lack of evidence regarding pursuing
a relationship with her other children, among other factors, was appropriate to
consider in the best-interests analysis when determining physical custody of
the child; however, in evaluating parenting time, the trial court erred by
failing to articulate how the parenting time would be in the minor child’s best
interests.
Vining
v Malone, unpublished opinion of the Court of Appeals, released April 19,
2018. (Docket No. 340252). A change of domicile may be in the child’s best
interests if the move improves the child’s quality of life due to financial
considerations, health reasons as a result of climate differences, and
increased availability of a parent due to decreased work hours.
Zalenski v Zalenski, unpublished opinion of the Court of
Appeals, released April 26, 2018. (Docket No. 340503). Plaintiff did not waive
his right to assert a claim in Michigan when cases were being litigated in
Michigan and Illinois, in which the parties voluntarily participated. If a waiver
was applicable, then the defendant could be seen to consent to jurisdiction in
Michigan, and it would only apply to personal jurisdiction and not subject
matter jurisdiction.
Royce
v Laporte, unpublished opinion of the Court of Appeals, released May 8,
2018. (Docket Nos. 337549, 340354). An order denying a request for parenting
time that would have changed custody is a final order under MCR
7.202(6)(a)(iii) due to the custody impact of such a proposed change.
Michigan IV-D Memorandums (Office of Child Support)
2018-010 (July 2, 2018) Updates to
Section 3.55, “Hearings,” of the Michigan IV-D Child
Support Manual
Note: This Memorandum replaces Memorandum 2014-002.
Section 3.55 has been revised to incorporate
previously published policy in IV-D Memorandum 2014-002, Revisions to
Administrative Hearing Procedures. Additional revisions to Section
3.55 include:
- Information regarding communication and collaboration between IV-D staff and public assistance staff throughout the hearing process;
- Changes to OCS Operations’ processes;
- Corrections to timing requirements based on revisions to the Bridges Administrative Manual, BAM 600, Hearings.
This
IV-D Memorandum also introduces a new form, the Michigan
IV-D Child Support Program Explanation of Noncooperation Determination (MDHHS-5437),
which IV-D staff will use in the hearing process.
2018-009 (June 27, 2018) Contract
Performance Standards (CPS) Hard Launch, Implementation, Business Objects
Reports, and Contest
This
IV-D Memorandum introduces updates to Section 1.25, “Contracts.” OCS has made
these updates in anticipation of the “Hard Launch” of the Business Objects
reports that will support the IV-D program’s Contract Performance Standards
(CPS). The following reports will be available statewide on July 9, 2018:
- PM-100 IV-D Child Support Contract Performance Standard Summary Report (PM-100);
- PM-101 IV-D Child Support Contract Performance Standard Detail Report (PM-101);
- PM-102 IV-D Child Support Contract Performance Standard Improvement Report (PM-102).
Fiscal year (FY) 2019, which begins on October 1,
2018, will be the first FY in which counties will be measured under the
Cooperative Reimbursement Program (CRP) contract. FY 2020 will be the first
year in which the evaluation will occur for the CPS results for the previous
year.
2018-008 (June 5, 2018) Revisions to the
BFS Offset Notice
OCSE recently announced that the Bureau of Fiscal
Services (BFS) had updated the BFS Offset Notice.
This IV-D Memorandum announces minor revisions to the content, format and
organization of the notice. OCS has updated Exhibit 6.21E3, BFS Offset Notice, to reflect the revised notice.
2018-007 (June 13, 2018) Updates to
Michigan IV-D Child Support Manual Section 4.05, “Paternity Establishment”
This IV-D Memorandum announces updates to Section
4.05, “Paternity Establishment.” OCS revised Section 4.05 to discuss: federal and
state requirements for paternity establishment processes; the benefits of
paternity establishment; paternity establishment methods; and the initiation of
paternity establishment services.
2018-006 (May 25, 2018) Introduction of
Section 1.15, “Family Violence,” of the Michigan IV-D Child
Support Manual and the Request to Protect
Information (MDHHS-5728)
This IV-D Memorandum announces the publication of
Section 1.15, “Family Violence.” It also discusses the new Family
Violence History pop-up window that will be implemented with the Michigan
Child Support Enforcement System (MiCSES) 9.9 Release (June 1, 2018).
Additionally, this IV-D Memorandum introduces a new
sworn statement, the Request to Protect
Information (MDHHS-5728), which survivors of family violence may use
to request the suppression of their identifying information. A copy of the
MDHHS-5728 is attached to this memorandum. It will be available in MiCSES with
the 9.9.1 release (June 29, 2018). The Affidavit for Withholding
Any Information From Disclosure to the General Public (DHS-970) is
no longer available.
2018-005 (May 25, 2018) Uploading
Documents to the Historical Reprints (FHST) Screen in the Michigan Child
Support Enforcement System (MiCSES)
This IV-D Memorandum explains new functionality to
upload and retrieve documents on the MiCSES FHST screen. This functionality
will be implemented with MiCSES 9.9 Release on June 1, 2018.
2018-004 (May 25, 2018) Updates to IV-D
and Non-IV-D Reason Codes to Fix Pre-Conversion Cases That Will Not Close
This
IV-D Memorandum explains updates to eligibility criteria for the following IV-D
and non-IV-D case closure codes to ensure cases automatically close pursuant to
policy:
- GM – Youngest Child Reached Majority, No Payments in 10 Years;
- WY – Non-IV-D Case, Arrears Less Than $500 and No Payment in Six Months; and
- WZ – Non-IV-D Case, No Payment in 10 Years.
This memorandum also introduces a new manual non-IV-D
closure code, “FC – Non-IV-D Case, Services No Longer Needed or Possible,” and
discusses additional minor system updates. These changes will be made with the
MiCSES 9.9 Release (June 1, 2018).
