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DIVORCE 32: Regular gift of money included as income for child support formula.

This case arose from the dissolution of plaintiff and defendant’s marriage. In January 2018, the trial court granted the parties’ divorce. Regarding plaintiff’s testimony at the bench trial, the trial court found that plaintiff lacked credibility and lacked accountability for having an affair while she was married to defendant.

The trial court found that defendant’s 401(k) retirement account funds were minimal, and that defendant used the money for living expenses. The trial court found that the parties contributed to the marital estate and that both parties were of similar age. The trial court also found that the parties had the same health, life status, and necessities and circumstances. However, the trial court found that defendant had a greater earning potential. The trial court also found that defendant’s conduct of engaging in an assault was not appropriate.

The trial court calculated child support based on the parties’ income during 2017. The trial court referred this case to the Friend of the Court to assess the imputation of income and child support based on the parties’ future income. The trial court adopted plaintiff’s recommendation regarding retirement benefits, which provided that each party retained his or her retirement benefits free and clear of any claim of the other party. Finally, the trial court divided the parties’ real property, personal property, vehicles, bank accounts, businesses, additional debts, insurance, and attorney fees.  The trial court did not award spousal support.

Plaintiff first argues on appeal that the trial court erred by including money that plaintiff received from her parents as income when it calculated child support.

In determining the contributions to child support that divorced parents must make, the trial court presumptively must follow the Michigan Child Support Formula (MCSF) developed by the Friend of the Court. The assessment of support and the support formula are based on the child’s needs and each parent’s ability to pay.

Pursuant to the MCSF, a trial court uses a parent’s net income to calculate support. Net income means all income minus the deductions and adjustments permitted by this manual. 2017 MCSF 2.01(A). Property or principal from an inheritance or a one-time gift is generally not included as income. However, a gift that a parent receives from relatives other than a spouse, friends, or others may be included as income if the gift is significant and regularly reduces personal expenses or replaces or supplements employment income.

In this case, plaintiff received approximately $57,000 or $67,000 from her parents. The trial court included the money from plaintiff’s parents as income for its 2017 child support calculation.

The testimony presented at the bench trial supported the trial court’s determination that the money that plaintiff received from her parents was a gift, rather than a loan. Plaintiff’s father testified that he gave plaintiff money to help her pay her mortgage. The testimony supports the conclusion that the sum of money that plaintiff received from her parents replaced or supplemented plaintiff’s employment income, which was not sufficient to meet her mortgage payments.

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FAMILY LAW 37: Referee recommended against changing legal custody or parenting time.

Plaintiff requested sole legal custody, arguing that she and defendant had difficulty co-parenting and that defendant would not agree to medical treatment for the diagnosis and treatment of ADHD, need for orthodontic work, and need for vision testing and glasses. Plaintiff also requested an alternating weekly or biweekly schedule during the summer, which would increase her overall parenting time.

REAL ESTATE 40: Tax Tribunal denied petitioner’s claim of a principal residence exemption (PRE).

MCL 211.7cc(2) provides that an owner of property can claim the PRE by filing an affidavit that must state that the property is owned and occupied as a principal residence by that owner of the property on the date that the affidavit is signed and shall state that the owner has not claimed a substantially similar exemption, deduction, or credit on property in another state.

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REAL ESTATE 38: Plaintiff fails to make land contract payments.

The land contract stated that T Company sold real property to plaintiff. The land contract further stated that if plaintiff failed to make a monthly payment, T Company could execute the quitclaim deed, thereby terminating plaintiff’s rights to the real property under the land contract.

CONTRACTS 6: Do you understand the clauses in your Purchase Agreement?

The trial court granted defendants’ motion for summary disposition, concluding that the claims against the realty companies were barred by the valid release contained in the purchase agreement and that the claims against sellers were required to be resolved in arbitration because they fell within the scope of the arbitration clause in the purchase agreement.

DIVORCE 29: Spousal support in gross is non-modifiable, whereas periodic is subject to modification.

As the name implies, periodic spousal support payments are made on a periodic basis. Periodic spousal support payments are subject to any contingency, such as death or remarriage of a spouse, whereas spousal support in gross is paid as a lump sum or a definite sum to be paid in installments. In addition, one major difference between the two types of spousal support is modifiability. Spousal support in gross is non-modifiable, whereas periodic spousal support is subject to modification pursuant to MCL 555.28.1.

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PROBATE 28: Probate court enters a protective order providing support for a community spouse.

A probate court’s consideration of the couple’s circumstances cannot involve an assumption that the institutionalized spouse should receive 100% free medical care under Medicaid or an assumption that a community spouse is entitled to maintain his or her standard of living. Medicaid is a need-based program, and a Medicaid recipient is obligated to contribute to his or her care.

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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