A Court's Discretion with Child Support

If I had a dime for every time child support interfered with a consent order being signed, I wouldn’t be sitting here writing this article for you (or maybe I would, but it would be from a beach in Hawaii).  Child support is routinely a hotly contested issue during mediation, divorce and custody proceedings.

In cases where the custodial parent receives government assistance (Food Stamps, Medicaid, or cash), this is typically the only reason the action is filed in the first place.  The parents may be content as to their custody and parenting time arrangement, but the state will force an action and sue the other parent to establish a child support obligation.  Often times these orders for support award the mother custody, and award the father vague parenting time, simply stating “as agreed upon between the parties.”  There is, however, a definite child support obligation spelled out in the order.

Many people believe that parenting time and child support are tied together, and they are – to an extent.  A parent’s number of overnight visits with the children is a component to the Michigan Child Support Formula (MCSF) calculation, along with other factors like the parties’ incomes.  However, a parent can be ordered to pay child support even if he never sees his child.  Conversely, a parent can fail to pay support and still exercise all of his parenting time (assuming he has parenting time of course).  The separation of one’s child support obligation and parenting time rights is clearly delineated in the case Rzadkowolski v Pefley, 237 Mich App 405 (1999).

In the Ewald v Ewald, 292 Mich App 706 (2011) case, the father appealed the trial court’s calculation of his child support obligation.  The parties had two children, a son and a daughter.  The son primarily resided with the dad and the daughter primarily lived with the mom.  Dad saw the daughter regularly for parenting time, but mother and son stopped seeing each other.  Mom did not take any action to change or enforce her parenting time (or lack thereof) with the son.

The trial court determined that the father had a hand in estranging the parties’ son from the mother, and thought it unfair to not award the mother overnight credit (with the son) for purposes of calculating child support.  In doing so, this increased the father’s child support obligation.

The Court of Appeals vacated the trial court’s child support decision, noting that “the trial court erred because the Support and Parenting Time Enforcement Act does not provide for the enforcement of parenting-time rights by adjusting child support obligations.”  If you remember, one of my past article discussed how one’s child support obligation can continue even if parental rights are terminated.

Courts do have discretion in awarding child support, but there are specific deviation factors set forth in the MCSF which outline what can be used as a reason for deviation (see MCSF §1.04(D) & (E)).  The trial court’s problem in the Ewald case was that alleged parental interference with visitation wasn’t one of them.

The MCSF also dictates that child support be calculated by crediting “a parent for overnights a child lawfully and actually spends with that parent including those exercised outside the terms of the currently effective order.” See MCSF §3.03(C)(4)(a) & (b).  So, if the last entered parenting time order gave dad 182 overnights per year, but he since moved to California and now only sees the minor child a few times a year, child support can be recalculated based on his new (and fewer) yearly overnights, without a change in the parenting time order occurring first.

I hear a lot of griping when this is explained, but think about it- why should a person receive a reduced support amount based on what is essentially a now inaccurate court order?  The other parent is providing the child with the daily necessities more frequently due to the decrease in parenting time.

It is said that money is the root of all evil.  I don’t know if that’s true, but it sure is the cause of a lot of court hearings.

Vaccination or Education?

When I came across a New York court case dealing with immunizations and school, it caught my attention, probably because my daughter received a nice rash along with her toy dinosaur after getting her MMR (Measles, Mumps and Rubella) vaccine a few weeks ago.   My husband and I are pro-vaccination as we believe the benefits outweigh the disadvantages of any vaccine given to our child.  Yes, I was annoyed that she broke out in a rash, but thankfully it did not seem to bother her in the least and the only real inconvenience was having to reschedule her pictures so I wasn’t paying for memories of her looking like a Dalmatian.   All of that being said, the debate about whether or not to vaccinate your kiddos is not the subject of this article – it’s about the recent ruling of Judge William F. Kuntz, II, of the Federal District Court in Brooklyn, New York.

Like Michigan, New York requires students to be vaccinated against certain illnesses prior to attending day care, pre-kindergarten, kindergarten, and grades 1 through 12.  A parent or guardian can, however, request an exemption to the immunization policy by having the child’s doctor fill out a form detailing why it would be harmful to the child to be immunized.   If you are objecting for religious reasons, New York requires that the student, parent, or guardian hold “genuine and sincere religious beliefs which are contrary to the practice of immunization. “  If you are denied the exemption, you can of course, in the spirit of the American judicial system, appeal this decision.  For the first appeal, your child can stay in school.  However, if your appeal is denied, and you decide to give it one last go ‘round with the New York State Commissioner of Education, your child cannot attend school during that time period.

The crux of the recent case surrounded New York’s policy excluding unvaccinated children from school when there was an outbreak of a vaccine preventable disease.  Three families sued, two of which had already secured religious exemptions to the vaccination policy.  Their children were not permitted to attend school during a chickenpox outbreak. The third family filed suit due to having the exemption denied on both medical and religious grounds.  The main allegations were violations of the families’ First and Fourteenth Amendment rights.

Judge Kuntz ruled in favor of public health over the religious exemption, and upheld the policy allowing New York to bar unvaccinated children from school during vaccine-preventable disease outbreaks, based on case law from the early 1900’s.  In Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905), Henning Jacobson was appealing his $5.00 fine (big bucks back then) which he received for failure to comply with an order to be vaccinated for smallpox during an outbreak.   The Supreme Court upheld the fine, helping to cement the government’s ability to require vaccinations for public health reasons.

The New York ruling will assist other states in preventing unvaccinated children from attending school during a disease outbreak, which could be a good thing depending on what your beliefs are regarding immunizations.  At a minimum, I’m sure this adds some interesting talking points in the current debate of the balance between public, individual, corporation, and religious rights that the Hobby Lobby SCOTUS case brought into the spotlight.

Supreme Court of the United States rules on the Hobby Lobby Case

Link below to read the heavily contested SCOTUS opinion, June 30, 2014, written by Justice Alito.

http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

The California Hitman Law

I was watching television the other night, trying to pretend I could still stay up late and function the next day when  I came across a show called “Who the bleep did I marry.”  In this episode, California police detective John Pomroy was detailing how his ex-wife Tina received half of their marital estate even though she tried to hire a hitman to kill him.

Tina was physically abusive and suffered from addictions to prescription medications, alcohol and illegal drugs, so it was no surprise that John was awarded custody of the couple’s children in their 2002 divorce action.  Most individuals would be very upset in this situation, but Tina took it a step further. 

Conveniently, some members of a biker gang lived nearby and she tried to hire them to kill her husband.  Unfortunately for Tina she solicited members with scruples, as they quickly ratted her out to the police.  Undercover officers then caught Tina in the act and she was eventually convicted of solicitation for murder.

Due to California law at the time, a spouse was only barred from receiving assets if she personally attempted the murder, not if she hired someone.  As one would imagine, John was quite irritated by this legal loophole, so he made it his mission to get the law changed.

John’s goal became reality – California Family Code Section 4324 states “when a spouse is convicted of attempting to murder the other spouse…or of soliciting the murder of the other spouse…the injured spouse shall be entitled to a prohibition of any temporary or permanent award for spousal support or medical, life, or other insurance benefits or payments from the injured spouse to the other spouse.”  The injured spouse need not actually be physically injured for this to apply.

It seems ridiculous that this law had not always been in effect or that the judge in the Pomroy case wouldn’t have been a trailblazer and set new precedent, but just watching the news will tell you there’s a lot of ridiculousness out there.  In fact, I think that’s even a television show.

Covering the kids on your health insurance

With all of the press surrounding Obamacare and health insurance plan compliance, it led me to thinking about divorced or separated couples covering their kiddos on their health insurance (because the law is what an attorney day dreams about).  Often times the court only requires one parent to provide the insurance, for a variety of reasons.  One parent’s plan may be too expensive, or the benefits may not be as good as the other’s coverage.  The individual incomes of each parent, whether or not they fall below a certain percentage of the federal poverty level, and if the child is covered by Medicaid are also factors for the court to consider.

Both parents may have a legal obligation to provide coverage for their children, if available at reasonable cost.  The word “reasonable” is quite open to interpretation in all areas of the law (and life in general), but luckily for all of us, the Michigan Child Support Formula Manual spells that out.  A “reasonable cost” for health care coverage is no more than 5% of that parent’s gross income.

Talking about health care insurance routinely raises one’s blood pressure when you contemplate what you pay for coverage and what the insurance company provides you with in benefits.  It seems like the companies deny claims right and left despite the enormous premiums you pay each year.  I regularly feel like I need a drink after getting off the phone with my insurance company.  Many parents cover the children on their health insurance regardless of whether or not it falls within the 5% dollar amount, because they make too much money to qualify for a government assisted plan but don’t want their children to go without coverage.

If you cover your children on your health care insurance and either receive or pay child support, be certain to include that coverage amount for child support calculation purposes.  The parent paying for the health care coverage will receive a credit (read:  deduction) in the formula if he pays support, or a premium adjustment payment (read: additional support monies) if he receives support.  Additionally, if the cost of your health care skyrockets at each yearly open enrollment, you may wish to have child support reviewed based on this new, higher cost that you are contributing.

For those of you who might be worried that you are paying a premium adjustment to your ex and reimbursing her for her personal health care coverage, don’t fret.  The child support formula calculates the cost for the children only based on the number of individuals on the policy.

One last bit of medical advice:  the next time you have to call up your insurance company to find out why your son’s asthma medication isn’t covered anymore, pour that drink before you pick up the phone.

If you are interested in learning more, or downloading a free copy of the Michigan Child Support Formula Manual and its supplement, you can find them both on the Michigan Courts One Court of Justice website: http://courts.mi.gov/Administration/SCAO/OfficesPrograms/FOC/Pages/Child-Support-Formula.aspx.

Destination Divorces

Destination weddings are still popular with many couples, but how many “destination divorces” do you hear about?  I’d venture to say not too many.

If you happen to get divorced in a foreign country, does the United States recognizes that divorce as valid?  The answer is:  it depends.  The United States Supreme Court has long asserted that if the individual had the right to a fair trial, without prejudice or fraud, had the right to be present, and the “system of jurisprudence [was] likely to secure an impartial administration of justice between the citizens of its own country and those of other countries,” the judgment would be given comity.  Hilton v Guyot, 159 US 113 (1895).

The Michigan Court of Appeals echoed this position in Dart v Dart, opining that if the parties were afforded due process, present in court and had a hearing on the merits of the case, the judgment would be upheld.  Dart v Dart, 224 Mich App 146, 155 (1997).

In the 2009 unpublished case of Tarikonda v Pinjari, Michigan Court of Appeals Docket #287403, the Michigan Court of Appeals was faced with the question of whether or not to uphold an Indian divorce.  The parties were married in India and had one child born in the United States.  They resided in Michigan for about two years.  When the parties separated, the wife stayed in Michigan and the husband moved to New Jersey. 

Shortly after separating, the husband secured a divorce by traveling to India.  Pursuant to Indian law, a husband can actually divorce his wife by pronouncing that he divorces her three times.  This is called the “triple talaq.”  Pinjari did just that in his written triple talaq, and received a divorce certificate.  Just think, if this kind of quick and easy divorce were allowed in the United States, I’d be out of a job.

Tarikonda filed for divorce in Michigan a month after her husband received the Indian divorce.  The lower court granted the husband’s request to dismiss the Michigan divorce complaint on the basis that the couple was already divorced in India.  Tarikonda was told to register the Indian divorce in Michigan and she could pursue custody and support in a separate complaint.

Tarikonda appealed on the position that the Indian divorce should not have been given comity as it “is violative of due process and contrary to public policy.”

The Court of Appeals agreed with Tarikonda, noting that she was denied due process as she had no notice of the triple talaq and was not given the right to be present or have an attorney.  Further, this type of divorce denies women equal protection as they cannot pronounce a triple talaq on their husbands and receive a divorce.  The lack of an equitable property division was also contrary to Michigan law.

The lesson to be learned from this case:  don’t get a destination divorce in a country where you can simply say you’re divorced three times and it becomes true.  That only works if you’re wearing ruby slippers and click your heels.

Keeping Secrets Pays

Confidentiality is a common theme throughout the legal world, and for good reason.  The most recognized example of this is the fact that conversations between attorney and client are privileged and held confidential, which you would think promotes an open and honest relationship between the two, but that is not always the case (read:  clients lie, despite the fact that you can’t tell anyone what they say).

In family law, many settlement agreements are kept out of the public file, especially in high profile cases, so that the privacy of the divorcing couple and their family is held intact.  In a world outside of family law – GASP!  There is such a thing? – when resolutions are reached behind closed doors, those involved are often held to confidentiality agreements so that no one knows what really happened or how much was awarded.  Lawsuits are often publically humiliating for corporations and individuals; naturally, the PR people want to minimize any potential damage to the extent possible.  Many people assume that the higher the monetary award, the more truth there was to the allegation that brought the lawsuit in the first place.

This type of confidential agreement was brought to light in Florida for the Snay family.  Patrick Snay sued his former employer, Gulliver Preparatory School, claiming age discrimination when he was not brought back on board to head the school.  The school and Snay eventually reached an agreement – meant to be confidential – where Snay would receive $80,000 as a settlement, in addition to $10,000 in wages and $60,000 for his attorneys.  The agreement did allow exceptions to the confidentiality so that Snay and his wife could speak to his attorneys and other “professional advisors.”

Unfortunately, Snay decided to let his daughter in on the secret, claiming that she was entitled to know “something” due to the fact that she was involved in the family ordeal and had needed therapy.  This probably wouldn’t have been a big deal, except that Snay’s daughter posted a little something on her Face Book page, which just so happened to have 1,200 individuals following it (and I thought I was doing good with 420 friends):  “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT.”

Gulliver Preparatory Schools was less than impressed and refused to fork over the $80,000, based on a breach of the confidentiality agreement.  Various court hearings and appeals were held, but Gulliver prevailed in the end.

I wonder if Snay’s darling daughter still got to go on that European vacation.

Sperm Donation Leads to Lawsuit

It’s said that no good deed goes unpunished, and that appears to be the case for Kansas resident William Marotta, who simply wanted to help a couple fulfill their dream of having a child.

Craig’s List can be used to solicit, sell and advertise a variety of wanted items, and apparently sperm is one of them (good to know).  This is how couple Jennifer Schreiner and Angela Bauer got in touch with Marotta and arranged for him to provide his donation in 2009, which he did free of charge.  Schreiner and Bauer worked off of the “DIY” method and did not utilize any type of medical assistance in order to conceive their daughter, who was later born as a result of Marotta’s donation. 

Everyone involved wanted to be smart about the situation, and the parties signed a contract stating that Marotta did not have any parental rights to the child and was not financially responsible for her, which only seems fair, right?  Wrong.  Because the couple later separated and Kansas law doesn’t recognize same-sex marriages, only the biological mother (Schreiner) could be held legally responsible for the child. When Schreiner later needed government assistance, the State of Kansas sought out the father in order to have him help support the child.

Government agencies routinely come after the non-custodial parent for child support when the other parent receives assistance, and rightfully so.  If there is a parent out there who could provide for the child, and/or reimburse the state for monies spent on the child, the state will make every attempt to locate him or her.

One of the most unusual aspects in this case is that had the former couple went through a doctor for the insemination, Marotta would not be liable under Kansas law.  Apparently Kansas is taking the position that Marotta and Schreiner could have conceived the child the old fashioned way, whereas if they had used a doctor, it would have solidified that he was a sperm donor and nothing more. 

Marotta said he had no idea that the couple wasn’t using a doctor, but I find that a bit hard to believe – he was trolling on Craig’s List for a place to donate his sperm and he naturally assumed that those same individuals would be using medical assistance when he directly provided the product requested?  That’s a bit sketchy, at best.

Marotta is appealing the decision, as one would expect.  He probably imagined good karma coming his way for his donation, and instead he was hit with a lawsuit.
 
 
 

Ex Parte Orders

Personally, I’m not a fan of surprises unless it involves presents, preferably sparkly and 14 carat.  Professionally, it would be an ideal world to have ample notice before every hearing, for every client to tell the truth (and nothing but the truth), and to never get a panicked phone call that an ex parte order was just served on my client. 

What is an ex parte order you ask?  Well, if you have the right circumstances, a court can sign an order awarding you the relief that you seek in your motion, without giving notice to the opposing party.  The order itself is not enforceable until the opposing party is served with it, because obviously you can’t abide by something you know nothing about.

The court has the authority to issue an ex parte order pursuant to Michigan Court Rule (MCR) 3.207, if it “is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.”

Here’s a good example of a common reason for an ex parte order in a divorce case:  John has filed for divorce.  This makes his wife, Jane, very mad, so she drains the bank accounts and starts cashing in savings bonds to give herself as much money as possible before the inevitable split of assets in the divorce.  Naturally, John is not happy about this turn of events, so he asks the court to issue an ex parte restraining order, prohibiting Jane from taking money out of their accounts, such as bank accounts, 401ks, whole life insurance policies, etc., and to prevent her from spending or hiding the money she has already plundered.  If John had to provide Jane with notice that he filed a motion, and had to wait for the court hearing, there’s a good chance Jane might use that week or so of time to do exactly what John is trying to prevent her from doing.  Then, after taking all of their riches, Jane hops on a plane with her destination being any country that doesn’t have extradition to the United States). 

Ex parte orders for custody, parenting time and support are also entered by the court, especially if there is an unfortunate situation such as domestic violence between the parties, abuse of a child, or issues with drugs or alcohol.  In these cases, if the moving party had to wait to give notice of the hearing, there is the concern that the abuse would continue or worsen, neglect of the child would occur if parenting time was not supervised, or that a parent may all together disappear with the minor child.

Specific language advising the opposing party of their right to object to the order, and what happens if they fail to object, must be included in the ex parte order itself.  Be aware that even if you object to an ex parte order that you are served with, you still have to follow the terms of that order until you have the hearing on your objection.  Even then, it’s not a guarantee that the judge will change the terms of the order.  The objection time period is very short – only 14 days – so you have to act fast if you are unhappy with the order (which is a very good assumption).

Ex parte orders are not something judges take lightly, and neither should you.  It is imperative that you provide ample evidence that what you are seeking is immediately necessary and that your order contain the mandatory language set forth in the court rule.   

My last piece of advice:  when the opposing party is served with the ex parte order, I would suggest skipping the usual surprise party balloons – somehow I don’t think they will make the surprise a happy one.