FAMILY LAW 34: Domestic violence and child custody.

R and J separated after R summoned the police to the marital home on April 12, 2017. R asserted that J had meted out verbal and physical abuse against her for over a decade. These incidents were often witnessed or heard by the children.

After filing for divorce, R secured a personal protection order (PPO) against J and temporary sole physical custody of their children. J objected and the court conducted a three-day evidentiary hearing to consider the propriety of the PPO and to determine an appropriate custody arrangement.

At the conclusion of that hearing, the court replaced the PPO with a mutual restraining order.

In relation to the best interest factors of MCL 722.23, the court mostly found the parties equal. In relation to domestic violence, factor (k), the court noted, there’s domestic violence, constant arguing, traumatizing the children that is not in their best interests. That’s why we’re separating the parties. The court found mutuality in the situation, however. Despite that R provided evidence corroborating that J employed physical violence against her and J relied on his word alone to claim that R was the aggressor, the court found that the constant yelling, fighting, pushing, shoving appears, at a minimum, to be mutual.

At the close of trial on April 20, 2018, the trial court determined that the children had an established custodial environment with both parents. The court found the parties mostly equal on the best interest factors. The court found that factor (j) weighed in J’s favor because R had not facilitated a close relationship between J and the children. Instead, R admittedly shut J out of decisions. The court found factor (k), domestic violence, the most difficult. The court reiterated its belief that R had exaggerated her claims that J abused her.

Overall, the totality the Court found the father more responsible on domestic violence, particularly in the presence of the children. There was a temper. The parties were at odds and fighting a lot. Certainly, if there’s a lot of argument, it’s a two-way fight. But there is testimony, corroborated through the children, which is sad, that there was physical violence. The court posited that the separation of the parties would mean the domestic violence is over. The court ultimately awarded the parties equal parenting time with the children.

R appealed that decision.

The appeals court was concerned with the trial court’s minimization of the effect of the domestic violence in the home upon the parties’ children. The court incorrectly stated that the potential for domestic violence was over because the parties were separated and therefore factor (k) would no longer be a concern. The record is replete with examples of John’s use of violence against others and his anger management issues. These issues predated the marriage, have continued since the divorce, and could occur again in the future. This issue must be more fully addressed on remand.

The appeals court remanded for further address.

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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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