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CRIMINAL 19: Sentencing guidelines are advisory.

In this case, there is no doubt that defendant assaulted and seriously injured the victim; she also destroyed the victim’s and his wife’s property.  Defendant and the victim engaged in an affair for more than five years. The victim was a wealthy, middle-aged married man; defendant, a substantially younger single woman. These offenses arose during a weekend that the two spent at the victim’s vacation home.

Defendant became increasingly frustrated with what she believed was the slow pace of the victim’s divorce proceeding. The victim, however, had withdrawn his divorce action months earlier, apparently without informing defendant. Moreover, on this weekend, defendant discovered an item leading her to conclude that the victim continued to engage in conjugal relations with his spouse. Excessive alcohol use also appears to have contributed to defendant’s destructive and assaultive behavior.


Following a jury trial, defendant was convicted of assault with intent to do great bodily harm less than murder (AWIGBH), malicious destruction of personal property valued at less than $200, domestic violence, malicious destruction of a building between $200 and $1,000, and resisting or obstructing a police officer.


The trial court imposed a sentence of two years’ probation, with the first five months to be served in county jail, for the AWIGBH conviction, a three-day jail sentence, with credit for time served, for the malicious destruction of personal property, malicious destruction of a building, and resisting or obstructing convictions; a thirty-day jail sentence for the domestic violence conviction; and a three-month jail sentence for the felonious assault conviction.

Sentencing Guidelines

The prosecution argued that the trial court abused its discretion by imposing a downward departing sentence. The sentencing guidelines are advisory, and although a trial court must determine the applicable guidelines range and take it into account when imposing a sentence, the court is not required to sentence a defendant within that range.

The trial court noted that the prosecution had earlier offered defendant an opportunity to plead guilty to felonious assault and the misdemeanor malicious-destruction offenses in exchange for dismissal of the remaining charges. Defendant, however, declined what the court offer by the prosecution. If defendant had accepted the prosecution’s offer, the sentencing guidelines’ recommendation would have been 0 to 17 months’ imprisonment.

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REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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