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DIVORCE 20: Plaintiff asserts that defendant’s motions to purge her contempt were frivolous.

Plaintiff filed for divorce in August 2007 and a Judgment of Divorce (JOD) granting the parties joint legal and joint physical custody of their two minor children was entered in December 2007.

Things were amicable between the parties for a while, but at some point plaintiff became concerned that the children were being exposed to domestic violence and alcohol abuse in the defendant’s home she shared with her new husband.

Plaintiff subsequently filed a Motion Regarding Custody and Parenting Time. On December 12, 2013, the trial court issued an order granting defendant’s motion to appoint a therapist for evaluation, review and recommendation as to any parenting time and custodial issues.

On April 4, 2014, plaintiff filed a Motion for an Order to Show Cause for Contempt for defendant’s failure to follow the December 2013 order and requested $2400 in attorney fees.

In a subsequent order, the court awarded plaintiff full legal and physical custody of the children. Defendant was advised that she could petition the court for a custody hearing and additional parenting time upon demonstrating that she had fully addressed the issues identified in the therapist’s report.

In October 2014, defendant filed her first Motion to Restore Joint Legal Custody, Modify Parenting Time and No Contact Provision, and Purge Contempt arguing she had fully complied with the issues identified by the therapist.

At a March 2015 hearing the court inquired into defendant’s progress. Based on admissions made by defendant, the court found she was not in full compliance because she was not in counseling at that time.

Thereafter, defendant continued to file motions to modify custody & parenting time arguing her and her husband’s compliance with the therapist’s recommendations. Each time plaintiff responded with assertions that defendant and her husband were not in compliance. Plaintiff likewise continued to file motions requesting evidentiary hearings regarding his unresolved complaints for litigation costs and contempt sanctions due to defendant’s non-compliance and unresolved contempt.

Plaintiff asserts that the filing of defendant’s motions to purge her contempt were frivolous because defendant was not in full compliance with the recommendations made by the therapist. However, defendant testified that she was engaged in parenting time alone with the children, was attending Al-Anon and was going to begin individual counseling with a new counselor.

Taking these actions into account, it was not unreasonable for defendant to believe that she and her husband had substantially addressed the court’s order and the therapist’s recommendations at the time she filed the motions. Defendant ultimately not being in full compliance did not make the filing of the motions or the signing of them by defense counsel frivolous. Thus, the trial court did not err when it held that plaintiff failed to show that defendant’s filings were frivolous.

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REAL ESTATE 36: Plaintiff argued that her claim was not time-barred because it did not accrue until the grandmother’s death.

Plaintiff’s interest in the subject property is best characterized as a remainder estate, because her right to possession of the property was postponed until the occurrence of a specific contingency, that being the deaths of the grandparents. Plaintiff pursued this action within the 15-year limitation period; accordingly, this action is not barred by MCL 600.5801(4).

LITIGATION 6: The terms of the agreement prevails over the course of performance.

The trial court determined that under the UCC, the express terms of the parties’ agreements prevailed over the course of their performance and course of dealing. Although a course of performance may show that parties have waived a specific contractual term under MCL 440.1303(6), the statute does not similarly provide that a course of dealing may demonstrate waiver.

PROBATE 27: Petitioner filed a petition for mental-health treatment.

In support of the allegations, petitioner attached clinical certificates from a physician and a psychiatrist who observed respondent at the hospital. Both doctors diagnosed respondent with bipolar disorder, determined that she displayed a likelihood of injuring herself and that she did not understand the need for treatment, and recommended a course of treatment that consisted of 60 days of hospitalization and 90 days of outpatient care.

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FAMILY LAW 32: Trial court committed error in failing to address whether there was an established custodial environment.

On appeal, plaintiff argues that the trial court failed to make any findings regarding (1) the child’s established custodial environment, (2) the child’s best interests regarding the grant of primary physical custody to defendant, (3) the child’s best interests with respect to parenting time, and (4) the child’s best interests pertaining to the parties’ dispute over daycare.

PROBATE 25: Daughter removed as personal representative of the estate.

the probate court determined that Daughter J had managed the estate in a manner that promoted her own interests as a beneficiary over the interests of the estate. The probate court found that such management demonstrated mismanagement of the estate and that removal of Daughter J was therefore in the best interests of the estate.

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REAL ESTATE 32: Plaintiffs and defendants executed a second easement.

Plaintiffs requested that the trial court, either through reformation of the First Easement or interpretation of the Second Easement, quiet title in favor of plaintiffs and declare them to be the owners of an easement to access Lake Superior through the ravine on defendants’ property, enjoin defendants from interfering with their use of the easement, and order compensation for damages to the stairs.

LITIGATION 4: Plaintiff claimed installation of hardwood flooring breached the condo bylaws.

Defendants completed the project. Plaintiff did not pay for any of the costs of the project. Defendants moved to compel plaintiff to pay one-half of the costs under the agreement. Plaintiff responded that defendants had materially breached the agreement in several ways, including by denying her the right to supervise the project, by refusing to give her an installation schedule, and by starting work before plaintiff approved of the start date.

FAMILY LAW 30: Discretionary trust assets cannot be reached to satisfy claims for child support and alimony.

The key difference between discretionary trusts, support trusts, and spendthrift trusts is that creditors cannot compel the trustee of a discretionary trust to pay any part of the income or principal in order that the creditors may be paid. The opposite is true of spendthrift and support trusts, which allow trust assets to be reached to satisfy creditors, including creditors seeking to satisfy claims for child support and alimony.

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FAMILY LAW 29: Quitclaim deed signed after prenuptial agreement prevails.

The court ruled that title to the land prevails and that once the deed was signed, the property became the undivided whole interest for both the decedent and appellee and became appellee’s property upon the decedent’s death. Consequently, the court concluded that the prenuptial agreement did not have any impact on the property rights of appellee in this case.

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