At Sean Cox Law, we specialize in helping West Michigan families through divorce, custody and visitation issues every day. The following are briefs from recent appeals that will affect family law in Michigan. If you or someone you know may be affected by this case law, contact us for a free initial consultation 616-942-6404!
• Custody change denial is final order for appeal
In Legal Terms: The trial court’s denial of a motion to change custody was a final order that conferred appellate jurisdiction to review the court’s decision. MCR 7.202(6)(a)(iii) defines a “final order” in a domestic relations case as a “postjudgment order affecting the custody of a minor.” Even when an order denies a custody change, the trial court’s ruling necessarily has an effect on and influences where the child will live and, therefore, is one affecting the custody of a minor, according to the Michigan Court of Appeals in Wardell v. Hincka.
In Layperson’s Terms: What the Court of Appeals was determining is whether the Trial Court’s DENIAL – or lack of change to the custody order – is considered a “final order” under the law. The argument was that if the trial court’s order does not change custody, it does not produce an effect on custody and, therefore, is not appealable of right. However, one could also argue that, when making determinations regarding the custody of a minor, a trial court’s ruling necessarily has an effect on and influences where the child will live and thus, is one affecting the custody of a minor. In this case, the ruling means that “no change” is still “a final order.”
• Grandparenting time decision vacated for failure of proof
In Legal Terms: The trial court’s order granting plaintiff grandparenting time with defendant’s minor child is vacated because the plaintiff did not present any evidence that the lack of visitation would raise a substantial risk of harm to the child, decides a split panel of Michigan Court of Appeals in an unpublished decision, Hollis v. Miller.
In Layperson’s Terms: If you are a grandparent and you wish to argue for visitation time in a court of law, this decision would have you needing to make a case that without your access there is a substantial risk of harm to the child. As a split panel, we might expect differing results on future appeals.
• Referee has authority to conduct PPO proceedings
In Legal Terms: A Friend of the Court referee may conduct personal protection order proceedings involving individuals who have a minor child in common, say the Michigan Court of Appeals in Visser v. Visser. The majority wrote: “It is clear… that PPO proceedings between individuals who have a minor child in common “have reference or relation” to custody or visitation proceedings. Therefore a referee is authorized to conduct a hearing.”
In Layperson’s Terms: In this case, the person against whom the PPO was issued was appealing it and was also suggesting that the order harmed his reputation. The Court of Appeals clarified that it is proper for a Friend of the Court referee to call for a personal-protection order, although one judge gave a dissenting opinion on this aspect.
• Sanctions properly awarded for improperly signed subpoena.
In Legal Terms: In this divorce action, the trial court properly sanctioned defendant for serving a subpoena not signed by an attorney of record. The attorney’s signing of the subpoena without indicating that her signature was made “for” or “with permission of” the attorney of record cannot be excused as a clerical error, according to the Michigan Court of Appeals in an unpublished opinions, Thorne v. Thorne.
In Layperson’s Terms: It is important to ensure that subpoena’s are signed either by the attorney of record or that the signer records the authority to sign on the attorney’s behalf.
• Social Security benefits garnished to pay periodic spousal support
In Legal Terms: Plaintiff’s spousal support obligations to his ex-wife are best understood as periodic alimony. As a result, the trial court erred by ending the garnishment of plaintiff’s Social Security benefits to satisfy his support obligation after plaintiff became ill, was unable to continue his surgical practice, filed for bankruptcy and was reduced to Social Security disability benefits as his only source of income, says the Michigan Court of Appeals in an unpublished opinion (Vanwagner v. Vanwagner.)
In Layperson’s Terms: In this divorce case, the husband had agreed to pay the wife support that was not modifiable and which could not be discharged in bankruptcy. The trial court had erred in treating the payments as “in gross” and therefore, terminated the payments. The Court of Appeals reversed the decision.
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