Of note in the Legislature: Divorce property divisions and COA filing fees

Statutory presumption for marital property splits proposed: Property acquired during a marriage, regardless of how the title is held, would be presumed to be marital property under HB 4672 and HB 4673.

The presumption could be rebutted by evidence to the contrary. The presumption would apply to real property and stocks.

HB 4673 also contains a list of factors courts must consider when untangling commingled marital and nonmarital assets, and another list of factors to determine how marital property should be divided.

The bills are currently in the House Judiciary Committee.

Bill would nix lower COA filing fees: Two statutory motion fees in the Court of Appeals would remain intact under HB 4731. The standard $100 motion fee and $200 fee for expedited appeals, see MCL 600.321, would have dropped to $75 and $150, respectively, on Oct. 1, 2012.

The bill is in the House Appropriations Committee. A hearing is set for June 22.

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Bills would streamline adoption process for foster care children

LANSING, Mich. – Michigan Supreme Court Justice Mary Beth Kelly and Michigan Department of Human Services Director Maura D. Corrigan have urged legislators to approve bills before both chambers that will streamline the adoption process for children in foster care. The passage of these bills could pave the way for expedited placement in qualified, permanent homes for more than 1,100 children.

Currently, the only person authorized to approve adoptions for children in foster care is the Michigan Children’s Institute (MCI) superintendent. Since April 2010, the MCI superintendent has received 1,100 such cases for approval.

Under the bills, the MCI superintendent, the legal guardian for children committed to MCI when parental rights have been terminated, may authorize a designee to provide written consent to the adoption, marriage, guardianship or emancipation of MCI wards. The designee would be allowed to authorize adoption requests where the child is already living in the recommended adoption home and a review by a caseworker and supervisor has determined there are no concerns about the placement.

Kelly said her experience as a family court judge convinced her that the bills are needed.

“No matter how good a job the MCI superintendent does, he or she is only one person, and it is simply unrealistic to expect one person to perform in-depth reviews of hundreds of these cases each year,” Kelly told legislators.

While finding a permanent, loving home for children in foster care is a key mission for DHS, Corrigan was clear that the expedited process will not sacrifice due diligence in the examination of potential adoptive families. The department will be systematic, careful and considerate when determining who will be named as a designee, Corrigan told members of the Senate Families, Seniors and Human Services committee.

“The best place for a child is in a stable, permanent home. That is our goal for each of the 4,150 children in foster care available for adoption. Joining a family should not be delayed because only one person in the entire state can authorize a child’s adoption or guardianship,” Corrigan said.

Among the bills’ supporters is the Michigan Probate Judges Association. In a March 15 letter to Sen. Judith Emmons, Judge Dorene Allen, chief judge of the Midland County Probate Court and chair of the MPJA’s Juvenile and Adoption Issues Committee, wrote that the legislation “will facilitate the permanency of children in the abuse and neglect system, certainly a goal we can all agree upon.”

Source: Michigan Department of Human Services

Foster Care Review Board announces 2010 awards

Two attorneys and a Saginaw County probate judge are among those honored by the Foster Care Review Board (FCRB) at its recently concluded 2010 conference.

Saginaw County Probate Judge Faye Harrison received the Jurist of the Year Award for her work as a family court judge.

Harrison, a 30-year veteran, was nominated by Barbara Hill, chair of the FCRB volunteer board in Saginaw County, as “a wonderful and expressive advocate for children’s justice who has truly made a difference in the lives of children in Saginaw County.”

Harrison, a past president of the Michigan Probate Judges Association, was cited for her leadership on the state and national level.

Tracy Green, managing attorney of the Detroit Center for Family Advocacy, received the FCRB’s Parent Attorney of the Year Award for her representation of parents in child welfare cases.

University of Michigan Law School Prof. Vivek Sankeran, who nominated Green, praised her as a “passionate and tireless advocate for parents.” Sankeran described Green as “nurturing and attentive … [she] is well respected by jurists and her attorney colleagues in Wayne County, where she practices, for her professionalism, expert knowledge and zealous representation of her clients.”

The Lawyer-Guardian Ad Litem of the Year Award was presented to Viola King, an attorney with the Juvenile Law Group in Wayne County.

Wayne County Family Court Referee Ilene Weiss Fruitman, who nominated King, described King as “the best and most professional representative and advocate for children of all who have practiced before me in my 13 years on the bench.”

King is esteemed by her colleagues in the child welfare system, Fruitman reported, and “has the rare quality of truly listening to what [her clients] are saying, as well as being able to hear what they are not saying.”

The FCRB, which was created by the Michigan legislature in 1981, serves as a statewide system of third-party review of the foster care system.

The program is administered by the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, and is comprised of citizen volunteers who serve on one of 30 local review boards throughout the state.

Local boards review randomly chosen child abuse and neglect cases to assess the performance of courts, Department of Human Services and private child welfare agencies.

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In their opinions

“[T]he majority’s unrestrained decision today is a huge mistake.”

Michigan Supreme Court Justice Elizabeth A. Weaver, dissenting in Tkachik v. Mandeville.

It’s not too often that you’ll find MSC Justices Stephen J. Markman, Michael F. Cavanagh, Maura D. Corrigan and Chief Justice Marilyn Kelly in agreement about much of anything.

But the four of them formed a majority and ruled that when Frank Mandeville’s wife, Janet, died, he unquestionably received fee simple title to property they held as tenants by the entirety.

No surprise there. But they also ruled that Frank owed Janet’s estate some cash because, well, because he was a cad.

In the last 10 years of their marriage, Frank frequently took long trips to foreign countries. He was gone on one such trip for the 18 months before she died. While Frank was abroad, Janet had to pay the mortgage, insurance and taxes on their property by herself.

He never called or wrote, even though he knew she was battling breast cancer. He didn’t even return for her funeral.

Before she died, she did everything she could, short of divorcing Frank, to cut him out of her life. She wrote him out of her will. She transferred her retirement benefits to keep them from him. She even tried to defeat the right of survivorship in the marital properties through a quitclaim deed.

A few months after Janet’s death, Frank strolled into probate court and petitioned to set aside Janet’s will. Susan Tkachik, Janet’s sister and personal representative, had little trouble convincing the court that Frank had “willfully abandoned” Janet, and, under MCL 700.2801(2) was not a “surviving spouse.”

Then Susan went on the offensive. She filed her own probate complaint, arguing that because Frank was not a surviving spouse, he and Janet had owned the marital property as tenants in common, and that he shouldn’t get fee simple title.

But MCL 700.2801(2), said the probate court, has limited application and certainly doesn’t destroy a tenancy by the entireties. Frank gets the property in fee simple.

Susan wasn’t through. She amended her complaint to seek contribution from Frank for all the mortgage, insurance and taxes payments Janet made before her death.

The probate court didn’t go for that one, either. Nor, after a couple of trips up and down the appellate ladder, did the Court of Appeals.

Writing for the majority, Markman, said that’s just not fair. Susan sought equitable relief, and that’s what she’s going to get.

Our consideration of the “special circumstances” of this case leads us to conclude that the following facts are legally sufficient to permit a claim for contribution between tenants by the entirety:

(a) where the decedent spouse has taken sole responsibility for the property maintenance payments while the other spouse had absolutely no personal contact with her for at least the last 18 months of her life;

(b) where the other spouse did not attempt once to communicate with the decedent spouse during this time, even though he acknowledged that he was aware that she was battling cancer;

(c) where the other spouse was disinherited in the decedent spouse’s will;

(d) where the decedent spouse sought diligently, albeit unsuccessfully, to divest the other spouse of his interest in the real properties before she died; and

(e) where the other spouse was deemed a non-surviving spouse under MCL 700.2801(2)(e)(i).

These unusual facts cry out for equitable relief so that “complete justice” can be done and give us assurance that in granting plaintiff’s remedy we are exercising our discretion carefully and responsibly.

Justices Robert P. Young Jr., Weaver and Diane M. Hathaway dissented. Said Young:

There is an old legal adage that “bad facts make bad law.” This phrase has rarely been as true as on the circumstances giving rise to this case. …

With its decision today, the majority now permits posthumous collateral attacks on the validity of marriages in this state where neither spouse has taken the appropriate legal steps to challenge the marriage or the financial equities of the marriage during life.

In doing so, the majority ignores the perfectly adequate legal remedies that our Legislature created in specific contemplation of marital disharmony — specifically, an action for separate maintenance — instead preferring to craft a new remedy recognized nowhere else in the country.

This rule allowing contribution between tenants by the entireties outside the context of a divorce or separate maintenance action is not supported by a single case or authority from any jurisdiction, let alone authority from Michigan.

As such, the new rule the majority creates today is untested and holds unforeseen consequences that reach much further than the narrow and unassuming decision the majority believes it has issued in this case.

Weaver, in her dissent, quoted Young’s statement with approval and labeled the majority’s approach a “huge mistake.”

In their opinions …

prison cell“[T]he [trial] court and the DHS failed to facilitate respondent’s participation in the child protective action by telephone in light of his incarceration, as required by MCR 2.004. …

“The court effectively terminated respondent’s parental rights merely because he was incarcerated during the action without considering the children’s placement with relatives or properly evaluating whether placement with respondent could be appropriate for the children in the future.

“Incarceration alone is not a sufficient reason for termination of parental rights.”

– Michigan Supreme Court Justice Maura D. Corrigan, writing for the majority in In re: Mason. Dep’t of Human Services v. Mason, et al.

“[T]he majority reverses the judgment of the Court of Appeals, which affirmed the trial court’s termination of [respondent’s] parental rights, on the basis that the Department of Human Services (DHS) and the trial court did not do enough to help respondent become a better parent. I believe that the majority has it exactly backwards — respondent is the one who did not do enough to become a better parent.”

– Michigan Supreme Court Justice Stephen J. Markman, dissenting in Mason.

While Richard Mason was doing time for a drunken driving conviction, and then for the resulting probation violation of a larceny conviction, the DHS removed his two sons from Smith, the boys’ mother.

Mason and Smith’s parental rights were eventually terminated when Mason was up for parole. Smith didn’t attend the termination hearing and did not appeal. Mason was there and did appeal. The Court of Appeals shut him down.

But Corrigan, joined by Chief Justice Marilyn Kelly and Justices Michael F. Cavanagh and Robert P. Young Jr., faulted the trial court for not facilitating Mason’s participation by telephone during some phases of the proceedings.

The majority also said the court and the DHS didn’t “ensure[ ] that [Mason] had a meaningful opportunity to comply with a case service plan, or consider[ ] the effect of the children’s placement with his family.”

Markman, joined by Justice Diane M. Hathaway, didn’t see any problem with the extent of Mason’s participation:

Because respondent was incarcerated, he was not present at all the proceedings, but his counsel was always present on his behalf.

Respondent’s counsel indicated that although he wrote to respondent and notified him of the proceedings and of the fact that respondent could participate by way of speakerphone, respondent did not initially respond.

That is, contrary to the majority’s repeated contention that respondent was not informed of his right to participate in the hearings by telephone, respondent’s attorney did, in fact, inform respondent of this right. …

[R]espondent did also, in fact, participate by way of speakerphone during at least two of the proceedings, and he did physically attend the termination hearing.

Markman also took issue with the majority’s conclusion that the DHS and the trial court did do enough to help Mason “become a better parent.” Any mischief here was that of Mason’s own making:

The majority, quoting the children’s lawyer-guardian ad litem, asserts that respondent was “‘hamstrung from the beginning [in] trying to get things in order so that he [could] one day be a father to these children.'”

However, the majority disregards two quite significant points.

First, to the extent that respondent was “hamstrung,” this was of his own making — nobody but respondent can be blamed for the fact that he was in prison during the pendency of these proceedings.

Second, there is no evidence that respondent did anything to provide for his children while they were living with their unfit mother, with foster parents, or with their paternal aunt and uncle. Instead, respondent pleaded “no contest” to the removal petition that alleged that “Mr. Mason has failed to provide for the children physically, emotionally and financially.”

Justice Elizabeth A. Weaver joined Markman’s dissent in a separate opinion.

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Woman’s bankruptcy doesn’t give ex-husband attorney fee relief

Douglas C. Sutphin was probably one happy guy when he learned his ex-wife declared bankruptcy and received a Chapter 7 discharge.

Sutphin figured that her divorce lawyer’s bill, the one he was supposed to be paying but so far hadn’t, was gone with the wind.

But after her bankruptcy discharge, Sutphin’s ex went back to court and obtained an order requiring him to pay the $23,000 bill in three installments. Sutphin went to the Court of Appeals and argued that he wasn’t responsible for her legal bill because it had been discharged in bankruptcy.

There are a few problems with your argument, Mr. Sutphin, said COA Judges Kathleen Jansen and Elizabeth L. Gleicher in the majority opinion of Berryman v. Sutphine.

First, it’s not at all clear that your ex-wife’s legal bill was discharged:

Defendant has presented no evidence substantiating (1) that plaintiff listed or scheduled her divorce attorney debt, or (2) the extent of plaintiff’s divorce attorney’s notice or knowledge of the right to assert a claim in plaintiff’s Chapter 7 case.

Second, if you yourself sought a bankruptcy discharge of the judgment requiring you to pay the attorney fees, you couldn’t do it:

[T]he current bankruptcy code prohibits the Chapter 7 discharge of a divorce-related attorney fee obligation. Depending on the underlying circumstances and the precise language of a divorce court’s attorney fee award, federal courts deem a divorcing party’s attorney fee debt as nondischargeable in a Chapter 7 bankruptcy under either 11 USC 523(a)(5) or (15).

But the real stopper is this:

Even were we to assume for the sake of argument that plaintiff’s Chapter 7 discharge eliminated the debt she owed to her divorce attorney, defendant ignores that plaintiff’s discharge has no legal impact on the distinct attorney fee debt that defendant owed to plaintiff, arising from the circuit court’s … orders.

In a concurring opinion, Judge Christopher M. Murray noted that:

[A] “Chapter 7 discharge does not actually extinguish a debtors debts; however, he is no longer personally liable for the discharged debts.” In re Graham, 297 BR 695, 697 (Bankr ED Tenn, 2003) … .

Thus, even if plaintiff’s debt to her attorney was discharged in the Chapter 7 proceeding, that did not eliminate the actual debt that existed to the attorney.

Therefore, the circuit court was free to determine that defendant should pay the outstanding attorney fees, as long as that decision was supportable under the normal rules governing the award of attorney fees in divorce actions. Since it was, defendant’s argument is properly rejected.

Murray said the only thing missing from the majority opinion was a directive that Sutphin should make the payments directly to the ex-wife’s attorney.

It’s only right. He’s the guy with the unpaid bill.