"The Legal Corner" provides a summary of recent Michigan Supreme Court and Michigan Court of Appeals decisions relevant to the child support program, as well as recently released state memoranda.
Editor’s note: SCAO form updates and published opinion summaries have been published here with permission from the Michigan Judicial Institute’s “IMPACT” publication.
COURT FORM REVISIONS
NOTICE OF REQUEST TO ENTER CONSENT
JUDGMENT/ORDER
The State Court Administrative Office (SCAO) has revised CCFD
26, Notice of Request to Enter Consent Judgment/Order,
to modify the title of the form to include “Order”; additionally, “[t]he proof
of service was modified to include ‘order’ and change party name to ‘Party B’ to
be consistent with court rule.” See the December 20, 2021 SCAO Memorandum for
a brief explanation of the changes and a copy of the form with the changes
highlighted.
CHILD SUPPORT ABATEMENT
The State Court Administrative Office (SCAO) has revised FOC
10, Uniform Child Support Order; FOC 10a, Uniform
Child Support Order, No Friend of the Court Services;
FOC 106, Notice of Redirection or Abatement of Child Support;
and FOC 107, Notice Following Review of Proposed Redirection or Abatement of
Child Support, pursuant to 2020 PA 348 (concerning
incarceration abatement), and to include options regarding incapacitation
abatement. See the December 20, 2021 SCAO Memorandum for
a brief explanation of the changes and a copy of the forms with the changes
highlighted.
POSTJUDGMENT TRANSFER OF DOMESTIC
RELATIONS CASES
The State Court Administrative Office (SCAO) has revised FOC
24, Motion/Stipulation for Transferring Case (Postjudgment);
and FOC 25, Order Changing Venue and Transferring Case (Postjudgment),
“to align the form language with the procedures laid out in MCR 3.212”; “[t]he
forms were also modified to new form standards and MiFILE requirements.” See
the December 21, 2021 SCAO Memorandum for
a brief explanation of the changes and a copy of the forms with the changes
highlighted.
LEGISLATIVE ACTIVITY
ABATEMENT OF CHILD SUPPORT
RESPONSIBILITIES – INCARCERATED PAYER
Effective December 30, 2021, 2020 PA 349 amended the Friend of
the Court Act (FOCA), MCL 552.501 et seq., to do the following:
- Remove a provision that allows the Friend of the Court to review a child support order for a changed financial condition related to incarceration or release from incarceration after a criminal conviction and sentencing to a term of more than one year, former MCL 552.517(1)(f)(v)(B); and
- Add a new section to provide that the monthly amount of support payable under an order must be abated, by operation of law, when the payer becomes incarcerated for 180 consecutive days or more and does not have the ability to pay support, and to set out parameters for abatement and termination of abatement, or reinstatement, MCL 552.517f.
PUBLISHED OPINIONS
DIVORCE – COLLATERAL ATTACK OF CONSENT
JUDGMENT AND FEDERAL PREEMPTION
A party cannot “collaterally attack a provision in [a] consent
judgment of divorce . . . on the ground that it conflicts with federal
law.” Foster v Foster,
___ Mich ___, ___ (2022). In this case, “the provision of the parties’ consent
judgment of divorce that divides defendant’s military retirement and disability
benefits is generally enforceable under the doctrine of res judicata even
though it is preempted by federal law,” and federal preemption “does not
deprive our state courts of subject-matter jurisdiction over a divorce action
involving the division of marital property.” Id. at ___. Accordingly,
“defendant’s challenge to enforcement of the provision at issue is an improper
collateral attack on a final judgment.” Id. at ___.
UNPUBLISHED OPINIONS
Under Michigan court rule, unpublished decisions are not considered
authoritative. They are cited here to illustrate points of interest for future
similar cases.
Massey v. Verazain,
unpublished opinion of the Court of Appeals,
released December 28, 2021 (Docket No. 356015). The trial court
correctly determined that the children had an established custodial environment
with only the plaintiff mother when since at least May 2016, she had
provided for the children’s emotional, religious, education, and medical needs,
as well as love and guidance and that plaintiff had been a stay-at-home parent
and home-schooled the children, while defendant’s relationship with the
children had been “one of distance with visitation since 2016.”
Pueblo
v. Haas, unpublished opinion of the Court of
Appeals, released December 28, 2021 (Docket No. 357577). Holding that
plaintiff could not achieve the status of “natural parent” to a child conceived
through in-vitro fertilization under the equitable-parent doctrine given that
she was not ever married to defendant, and therefore lacked
standing to seek custody because she is not related to the child genetically or
by birth.
Travis
v. Jacobs, unpublished opinion of the Court of Appeals,
released January 13, 2022 (Docket No. 357940). Where a change of
domicile would not improve the quality of life for plaintiff and the child
because plaintiff’s unstable employment and a move would cause a long distance
between the child and the defendant, the Court held that the trial
court did not abuse its discretion in denying plaintiff-mother’s motion.
Moore
v. Forbers, unpublished opinion of the Court of
Appeals, released January 20, 2022 (Docket No. 357296). The trial
court erred in finding that plaintiff’s proposed change in domicile did not
have the capacity to improve the plaintiff and the child’s life when it did not
believe she could not find employment despite her testimony that immediately
after losing her job, she began looking for another job, applying for at least
50, and up to 100 additional positions as an attorney, as well as paralegal
positions and used ziprecruiter.com and careerbuilder.com to look for
employment, and she submitted an exhibit that listed all of the jobs that she
had applied for.
Smith
v. Rotterdam, unpublished opinion of the Court of
Appeals, released January 22, 2022 (Docket No. 356991). The trial
court did not abuse its discretion in denying plaintiff’s motion to adjourn the
evidentiary hearing until it could be held in person as opposed to on Zoom
when, although the request for adjournment was based on her fear that the
photographs of alleged abuse and associated testimony could potentially be
recorded through the Internet and used to harm the child in the future,
plaintiff failed to explain how the denial of her motion harmed her case for
custody or altered her approach in presenting her case because it was conducted
via Zoom.
Atkinson v. Atkinson, unpublished opinion of the Court of Appeals, released January 27, 2022
(Docket No. 357466). When the father was unwilling to compromise or
alter his demands for parenting time exchanges unless he obtained the custody
arrangement he wanted, the court correctly found that the parents could not
cooperate in exercising joint legal custody and did not err in awarding the
mother sole legal custody.
Adams
v. Youker, unpublished opinion of the Court of Appeals, released
January 27, 2022 (Docket No. 353793). The court was correct to apply
straight line rather than accelerated depreciation in determining defendant’s
income, it was not clear why the court added in the difference between straight
line and accelerated income and the trial court would either have to explain
why it did so or treat the calculation as a deviation.
Dennis
v. Tyler, unpublished opinion of the Court of Appeals,
released February 17, 2022 (Docket No. 358222). Normally, a person
must have standing as a legal parent to file for custody and so a determination
in another case that another man is a child’s father would prohibit a defendant
from litigating custody, however, because plaintiff raised the custody issue,
the trial court could award custody to the defendant even is he is not the
child’s father.
Parfet
v. Lennen, unpublished opinion of the Court of Appeals,
released February 24, 2022 (Docket No. 355177). The Court of Appeals
could not conclude that the trial court erred in not finding that the end of
plaintiff’s relationship with her live-in boyfriend was more than a normal life
change that should trigger a review of whether defendant, who had been out of the
children’s lives for five years, should have his parenting time restored.
Grobaski
v. McPherson, unpublished
opinion of the Court of Appeals, released February 24, 2022 (Docket No.
358336). The trial court erred when it granted plaintiff’s motion concerning
choice of school because even though the court performed the required
best-interest factors analysis, caselaw requires that the analysis be informed
by an evidentiary hearing as well, which the court failed to conduct.
Shamion
v. Skalitsky, unpublished opinion of the
Court of Appeals, released February 24, 2022 (Docket No. 358254).
The fact that the defendant did not obtain more overnights with the child did
nothing to interfere with his joint legal custody as that relies on
decision-making rather than the amount of time the parent has regular
interaction with the child in which to exercise decision-making.
Cummings
v. Cummings, unpublished opinion of the Court of Appeals,
released March 10, 2022 (Docket No. 358295). The court did not err
in finding factor J ([t]he willingness and ability of each of the parties to
facilitate and encourage a close and continuing parent-child relationship
between the child and the other parent or the child and the parents) favored
plaintiff when, despite the alleged demanding tone of plaintiff’s text messages
concerning parenting time, defendant failed
to respond to the text messages and admitted to the Friend of the Court
that at times, he was not willing to commit to responding to plaintiff when she
has reached out to him.
Omaits
v. Zerbe, unpublished opinion of the Court of Appeals,
released March 10, 2022 (Docket No. 357995). While respondent’s
residence was relevant to the child’s connections with Michigan, standing
alone, it did not establish that any evidence related to parental fitness or an
ability to care for the child was present in Michigan; In contrast, petitioner
established that evidence related to the child’s care was present in Georgia,
and accordingly the trial court did not err by declining to exercise
jurisdiction over the custody case..
Stoll
v. Pietila, unpublished
opinion of the Court of Appeals, released March 17, 2022 (Docket No. 358542). The
trial court erred by giving undue weight to the parties’ respective employment
history rather than examining how the quality of life of the party and children
if the move was not allowed compared to their quality of life if the move was
allowed, and to then assess whether the move would result in an improved
quality of life.
Keinath
v. Keinath, unpublished opinion of the Court of Appeals,
released April 7, 2022 (Docket No. 358548). Although the parents shared
responsibility for raising the children during the majority of their marriage,
the trial court did not err in finding that as a result of the parties’
separation, the children had an established custodial environment only with
plaintiff where during the period of separation plaintiff resided with the
children in their existing home, handled their entire daily routines and appointments,
and was involved in their schooling; in contrast, defendant spent time with the
children for three afternoons per week.
MICHIGAN IV-D MEMORANDUMS (OFFICE OF
CHILD SUPPORT)
2022-001 (January 7, 2022) OCS Procurement of Vendor for Independent Security
Audit in County-Managed Offices
This
IV-D Memorandum addresses Independent Information Technology (IT) Security
Audits that County-managed offices in the Cooperative Reimbursement Program
(CRP) are required to complete every three years. For the audit due by
September 30, 2022, OCS is procuring the vendor that will conduct the audit.
This
vendor will:
- Audit the county-managed offices’ IT infrastructure, workstations, and county systems that process or store IV-D data;
- Provide the county office and OCS an audit report (including findings, if any);
- Assist the county in preparing a Plan of Action and Milestones (POAM) as a result of the findings, and offer guidance regarding cybersecurity improvements; and
- Provide OCS with a summary of county findings in a statewide risk assessment.
2022-002 (February 7, 2022) Professional License Data Updates
This
IV-D Memorandum announces the migration of professional license data from the
License 2000 (L2K) system to the Michigan Commercial Licensing and Enforcement
Regulation (MiCLEAR) system. MiCLEAR is one of the new licensing systems for
the Michigan Department of Licensing and Regulatory Affairs (LARA).
This
IV-D Memorandum also introduces the license types and secondary license
statuses that LARA will add to its professional license interface with the
Michigan Child Support Enforcement System (MiCSES). These license types and
statuses will be added on February 11, 2022 with the MiCSES 11.0.2 Release.
2022-003 (March 18, 2022) Jail Incarceration Records Update
This
IV-D Memorandum announces that jail incarceration data1 collected by Maximus
will soon be available to IV-D workers. IV-D workers can use jail data to abate
support, to locate support payers, and for other IV-D purposes. IV-D workers
may access the jail data through Smartsheet, a software application that
functions similarly to a Microsoft Excel spreadsheet. The availability of jail
incarceration data through the Smartsheet application will be an interim
solution, however. OCS is currently working to incorporate jail data into the
Michigan Child Support Enforcement System (MiCSES) and Business Objects
reports. This task should be completed later in 2022.
This
IV-D Memorandum will:
- Describe the role Maximus plays in collecting jail incarceration data;
- Describe the Smartsheet application and the data that is included in it; and
- Explain how IV-D workers may obtain access to and use the data in Smartsheet.
