GOOD MORNING FLINT!
12/15/07
By Terry Bankert
attorneybankert@...
810-235-1970
First Summaryposted to Flint Talk
http://www.flinttalk.com/viewtopic.php?p=20233#20233
Longer article at
http://goodmorningflint.blogspot.com/
"Defend Yourself or lose everything"
Vlogg to follow at
http://www.youtube.com/terrybankert

DEFEND YOURSELF .........................

The following will be the topic of my radio program
"Know the law" on WFLT 1420 AM Radio , 12/15/07,
this program is on every Saturday at 9:00 am. To 9:30 a.m. WFLT is a
Flint Gospel station and My program is focused most of the time on
Family Law. This is a call in station. 810-239-5733 .

The case selected is a recent Michigan Court of Appeals case from
outside Genesee County. This is written for a lay audience, my
comments are interspersed.

Issues: default,property valuation,marital property,spousal
support,pension,college

1.Motion to set aside the default; In this case the Husband did not
think the wife would not go through with the divorce, he did not
answer the pleadings and was defaulted. The man thought he was in
control until the bitter end.

A default means you lose the right to file any motions, pleading
(like the answer to the complaint) or participate in a trial. The
Wife just went into court with the judgement she wanted, too bad for
him. When this happens many counsel and their client will over rfeach
and get far more than they may have gotten in a trial.Moral of the
story: Answer you pleading, if you can't afford an attorney file
something anything call it an answer.

2.Challenge to the trial court's adoption of the value of the marital
home as advanced by plaintiff-wife's appraiser; Alken-Ziegler, Inc.
v. Waterbury Headers Corp.; Maldonado v. Ford Motor Co.; MCR 2.603(D)
(1); Saffian v. Simmons; Gates v. Gates; Olson v. Olson; Jansen v.
Jansen; Pelton v. Pelton; Even though the case was defaulted the
court understoof it still ahd an obligation to be fair so it allowed
some testimony on this fact.

I have seen Jujdge Beagle in Flint do just this. A good fair judge
will.

Wife said the house was worth $142,500 the husband said it wa worth
$106,000. Since the amount owed on the proopety is know this creats a
significant net value. One party will have to pay the other party 50%
of this net this creates an $18,500 difference in the payoff.

3.Whether the trial court disregarded the marital home's SEV and the
effect this would have if the property ended in receivership; The
reciever would be constrained by the courts determination of value
possibly.

4.Whether the trial court properly awarded plaintiff a four-wheeler
vehicle; Reeves v. Reeves; Dart v. Dart; This is an argumet about
separate versu marital proerty. Once you bring property to marraige
its marital property.

You can then argue it is separate and yours only in a divorce. If you
intemengal the assest its marital. Intermingleing could be making car
payments from a family account, making insurance payments from the
famuily account, letting your wife drive the car as in this case. If
you have that cherry 57 Chevy you might reconsider using family money
to repaint it.

Here, the record reveals that although the four-wheeler was a gift to
defendant from his brother. The four-wheeler was used by both
parties, as evidenced by the facts that plaintiff had possession
of the four-wheeler at her mother's house and that it did not remain
with defendant at the marital home.

The trial court did not clearly err by characterizing the four-
wheeler as marital property and did not abuse its discretion in
awarding it to plaintiff.


5.Spousal support; Thames v. Thames; Moore v. Moore; The elements of
Spousal support are considered. When ordeed there is not a state
formula like in child support. Many attorneys will have a computer
sprogram but it's a guess where a computerized child suppoprt
calculation is based upon Michigan Law.

Factors to be considered by the trial court in determining whether an
award of spousal support is just and reasonable are set out in Thames
v Thames, 191 Mich App 299, 308; 477 NW2d 496 (1991), and include:

(1) the past relations and conduct of the parties,
(2) the length of the marriage,
(3)the abilities of the parties to work,
(4) the source and amount of property awarded to the parties,
(5) the parties' ages,
(6) the abilities of the parties to pay [spousal support],
(7) the present situation of the parties,
( the needs of the parties,
(9)the parties' health,
(10) the prior standard of living of the parties and whether
either is responsible for the support of others,
(11) contributions of the parties to
the joint estate, . . .
(12) general principles of equity[, and
(13)] . . . fault . . . .


6.Whether the trial court placed too much emphasis on plaintiff's age
in determining the award of spousal support; Wiley v. Wiley; McLain
v. McLain; Age is just one factor in a spousal support calculation.
The older you are the harder it is to get a job.



The judgment of divorce provided that plaintiff was to receive twelve
years of spousal support divided into three periods of four years
each: $1,000 a month for the first four years; $750 a month for the
next four years; and $500 a month for the final four years.

The trial court's twelve-year, incremental step-down plan in spousal
support was specifically designed to "hopefully be offset by
increases in her earnings." The trial court did not clearly err in
its findings concerning plaintiff's ability to work.

AGE OF PARTY VS ABILITY TO EARN

Defendant also argues that the trial court placed too much emphasis
on plaintiff's age in determining the award of spousal support; he
contends that, because she was in good health, the trial court should
have placed more weight on her ability to earn income.

The record reveals that the trial court recognized that plaintiff was
50 years of age, in good health, and "was only sporadically employed
part time." However, as noted above, the trial court also recognized
that
plaintiff's business had the potential for expansion and specifically
awarded spousal support in an incremental step-down format, in
anticipation of her increasing income,..


7.Whether the trial court properly declined to find the pensions
could be used in determining spousal support; Magee v. Magee; Keen v.
Keen;

"Pensions are considered part of the marital estate subject to award
upon divorce."
Magee v Magee, 218 Mich App 158, 164; 553 NW2d 363 (1996).

"Pensions may be distributed through either the division of property
or the award of [spousal support], depending on the equities and
circumstances of the specific case." Id. at 164-165. "While the
division of a marital
asset such as a pension through an award of [spousal support] is not
always favored, see Keen v Keen, 160 Mich App 314, 316-317; 407 NW2d
643 (1987), it is an acceptable method of distributing a pension in
some cases." Stoltman v Stoltman, 170 Mich App 653, 658-659; 429
NW2d 220 (1988).


8.Whether the trial court properly declined to find Husband
defendant's current expenses included paying for his adult daughter's
college loans; This is just what good parents do, its optional and
considered a gift.

Posted Here by
Terry Bankert
attorneybankert@...
http://attorneybankert.com/

---cites---
Court: Michigan Court of Appeals (Unpublished)
Case Name: Barney v. Barney, Unpublished 12/04/07 St. Joseph Circuit
Court, 04-000876-DO
State Bar of Michigan e-Journal Number: 37797
Judge(s): Per Curiam - Murphy, Smolenski, and Meter


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