Issues: Custody; "Change of circumstances"; Corporan v. Henton; Vodvarka v. Grasmeyer; Corroboration of domestic assault allegations (via a conviction) as a change of circumstances; Mitchell v. Mitchell; "Escalation" of a condition after entry of the last custody order; Dailey v. Kloenhamer; Whether a change of custody was in the child's best interests; LaFleche v. Ybarra; The statutory best interest factors (MCL 722.23); Factors (a), (b), (c), (d), (e), (i), (j), & (l); Kubicki v. Sharpe; Request for appellate attorney fees; MCR 3.206(C); Spooner v. Spooner; Woodington v. Shokoohi; McIntosh v. McIntosh; Smith v. Smith
Court: Michigan Court of Appeals (Unpublished)
Case Name: Moore v. Moore
e-Journal Number: 58895
Judge(s): Per Curiam – Stephens, Talbot, and Beckering
Holding that the trial court's "failure to interview the child, without determining whether the child was old enough to express a preference, was error requiring reversal," the court vacated the custody order and remanded for further proceedings. It also rejected the defendant-mother's request for appellate attorney fees. The plaintiff-father appealed the trial court's order granting defendant's motion for change of custody and parenting time. While plaintiff argued that there was no change of circumstances after entry of a prior consent order, the court held that "it was not against the great weight of the evidence for the trial court to conclude that defendant established, by a preponderance of the evidence, there was a change of circumstances" since the consent order. "The trial court based its determination that a change of circumstances had occurred on plaintiff's domestic assault conviction, which took place after entry of the prior custody order." The events giving rise to that conviction occurred before the entry of the consent order. Plaintiff argued that his conviction, on its own, was not a change of circumstances that affected the child. The court disagreed, noting that plaintiff was sentenced to 10 days in jail for the conviction and while he was in jail, his parents cared for the child. While the underlying facts for the conviction occurred before entry of the order, "the effect on the child was escalated after plaintiff's conviction, given that plaintiff's resultant jail term removed him from the child's life for a period of time." The court added that the conviction implicated several of the statutory best interest factors. As to the trial court's determination that a change of custody was in the child's best interests, plaintiff challenged its findings on factors (a), (b), (c), (d), (e), (i), (j), & (l). The court concluded that the trial court's findings on all but (i) were not against the great weight of the evidence. However, it agreed with plaintiff that "the trial court committed error requiring reversal when it failed to conduct an interview with the child, despite the agreement of the parties that the child should not be interviewed." In Kubicki, as in this case, the parents agreed that they did not want the child to be interviewed, despite the fact that the child may have been old enough to express a preference. The court in Kubicki explained that, "[r]egardless whether the parties wished for an interview, the court was affirmatively required to consider the child's preference."
Issues: Divorce; Motion to set aside the settlement agreement; Kline v. Kline; Van Wagoner v. Van Wagoner; "Duress" or "coercion"; Lafayette Dramatic Prods., Inc. v. Ferentz; Apfelblat v. National Bank Wyandotte-Taylor; Stott Realty Co. v. Detroit Sav. Bank; Meier v. Schulte; Necessity of evidence that the opposing party actively participated in the coercion; Howard v. Howard; Claim that the settlement was "unconscionable"; Vittiglio v. Vittiglio; Clark v. DaimlerChrysler Corp.; Northwest Acceptance Corp. v. Almont Gravel, Inc.; Effect of the parties' waiver of the right to spousal support; Staple v. Staple; Sanctions; MCR 2.114(D) & (E); MCL 600.2591
Court: Michigan Court of Appeals (Unpublished)
Case Name: Silverman v. Spitzer
e-Journal Number: 58877
Judge(s): Per Curiam – M.J. Kelly, Cavanagh, and Meter
The court held that the defendant-husband failed to establish grounds for setting aside the parties' settlement agreement as to the division of the marital estate. Further, the settlement was not on its face substantively unconscionable. However, the trial court did not err in denying the plaintiff-wife's motion for sanctions. The court concluded that the trial court did not clearly err in finding that the plaintiff's attorney's (D) letters and actions about an incident with the parties' small airplane did not coerce the defendant into settling. "The parties' airplane was a valuable marital asset," which was apparently under defendant's sole control. Because it was a marital asset, plaintiff "had the right to know whether and to what extent it might have been damaged, whether the marital estate had been exposed to any liability, and whether the estate had a viable insurance claim." She also had the right to know if defendant was using marital assets to repair the airplane. Thus, D "cannot be said to have overstepped the bounds of propriety when she asked for information and records about the crash in her letter" of 10/12. She also did not directly connect her request to turn over plaintiff's "jewels, furs, and paintings to the issue with the crash, but instead indicated that she would ask the trial court to decide the issue, which was entirely appropriate." The court held that the parties' record filings and D's letters did not establish that D - acting on plaintiff's behalf - "engaged in any illegal, manifestly unjust, or purposely oppressive conduct" that forced defendant to settle against his will. The court noted that since there was no evidence that plaintiff, through D, participated in any coercive conduct by defendant's attorney, even if defendant's attorney wrongfully coerced him to settle, "that coercion would not warrant setting aside the settlement agreement." The trial court also did not err in determining that the division of the marital estate was not unconscionable. "In order to obtain specific assets with sentimental or personal value, a reasonable person might be willing to settle for a smaller overall percentage of the estate." Also, while "there appeared to be a substantial difference in the value of the assets awarded to each party," even assuming that defendant's valuations were accurate, the difference was not so extreme that it shocked the conscience. "The fact that the parties waived the right to spousal support in their agreement also does not shock the conscience." Affirmed.
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