"Playing James Bond may land a snoopy spouse in jail"

Author:  Marie E. Matyjaszek


We’ve all gone a little “007” on our significant others at some point in our relationships – checking out their Facebook friends, peeking at their cell phones or interrogating him when he comes home with glitter on his clothes.  Spouses are supposed to be able to have a trusting relationship with each other, and when there are children involved, it becomes increasingly important to be able to rely on your husband’s or wife’s word.  However, if you suspect that trust is broken and decide to dig a little deeper, think twice, because you might end up in jail.

Thirty-three year old Leon Walker of Rochester Hills, Michigan, was charged in February 2009 with a felony that could have him facing up to five years in prison – all for logging into his wife’s Gmail account.  Leon had begun having suspicions that his wife Clara was fooling around on him, and was concerned that it was with her second ex-husband, who had previously been arrested for domestic violence in the presence of her son from her first marriage.  Leon and Clara had a very young daughter at the time and he was concerned for her safety around Ex-husband #2, in addition to his step-son’s well-being (yes, it is hard to keep all the people straight in this scenario). 

According to Leon, Clara left her Gmail password next to the shared laptop located in the couple’s home, so he logged in without issue.  Emails confirmed his suspicions about the affair and Leon provided Ex-husband #1 with the emails so he could use them in court to file for custody of their son. 

Clara was apparently mad enough to make a police report, which wound up on the desk of Oakland County Prosecutor Jessica Cooper, who is ready to make an example out of Mr. Walker, charging him with violating MCL 752.795, typically used to prosecute the theft of trade secrets or identities.  Here’s where I think Ms. Cooper is trying to hang her hat – as luck would have it, Leon is a computer technician for Oakland County and according to the prosecution’s theory, has the plethora of skills needed to hack into computers with ease, and aside from his wife’s email, allegedly planned to break into the county’s law enforcement computer system CLEMIS.  Leon claims he was inquiring about this system in order to file a Freedom of Information Act to obtain police reports, which he eventually did, learning that no one has ever been prosecuted in this manner before in Michigan.  A January 31, 2011 article by the Detroit Free Press indicated that “county officials told the Free Press that an internal investigation found that Walker…never made such an attempt.”

Clara has alleged that Leon, who is now Ex-husband #3 (they were divorced in December 2010), did all of this to gain favor in front of their judge and win custody of their daughter.  Some of the many factors a court must examine when determining custody are domestic violence, regardless of whether or not that particular child witnessed the incident, the moral fitness of the parties, stability of the proposed homes, and everyone’s favorite – the catch all – “[a]ny other factor considered by the court to be relevant to a particular child custody dispute.”  If I was Leon Walker, I’d be bringing this affair to the attention of the court as well based on the history of the person with whom Clara had the affair.  And speaking of the affair, why isn’t Clara being charged with adultery?  If we’re going to through the book at Leon, let’s consider the fact that Clara isn’t exactly coming to the table with clean hands.

In my opinion, Leon’s guilty of nothing other than being a concerned parent and nosy spouse.  The parties lived in the same home at the time of the alleged crime, it was a shared laptop that both clearly had access to, and HELLO – Clara left her password next to the laptop.  I would say this is akin to the gracious “in plain sight” rule the police are allowed to follow.  I suppose that there should be the caveat of mentioning that this is Leon’s version of the story of course. 

The Walker saga seems like a plot conjured up by the writers at “As the World Turns,” but its outcome could have a tremendous impact on the legal community, particularly those of us that practice family law.  Of course rights of privacy exist, but to what extent do they apply in a marriage?  I attach Facebook posts and emails to pleadings regularly to help make my case, and in some instances, they are quite helpful.  Now I’ve got to be concerned about how my client came about possessing those tidbits of information too.  Maybe it’s about time for me to brush up on my criminal law.

Courtesy of Jackson County Legal News, 4/18/11, Vol. 47, No. 37

Defaults: Delaying the inevitable is not a good idea

Author:  Marie E. Matyjaszek


Filing a default in a case is one of my favorite pastimes, only second to receiving sparkly gifts. Defaults can be entered for a variety of reasons, but the most common is the defendant’s neglect to plead his case. When a divorce is filed, the defendant has to respond to the complaint within a certain period of time after he or she is served with the initial pleadings. If served in person, he only has 21 days from the date of service, and if he is served via snail mail, an answer must be filed within 28 days from the date of service being acknowledged. Not answering the complaint can mean that a default will be entered, which effectively terminates the defendant’s right to participate in the divorce proceedings, including a trial. A default judgment of divorce could be entered, with its terms being decided solely by the plaintiff. If this happens, you do still have options – it’s not as bad as the despair you feel when you have large dogs and look at your backyard after the snow melts.

Let’s say you were lazy or didn’t read the fine print on the summons, which provides you with an ominous warning about the perils of not answering the complaint. As an attorney, I occasionally get a phone call from a colleague asking for me to voluntarily set aside the default that was entered in that particular case. Depending on how far along the case is, I may agree to do so, knowing full well that I could be on the other side one day, asking that attorney to do the same for me. And the chance of a judge setting aside a default during the infancy of the case is a lot higher – most courts would rather have both sides be able to plead their case in order to ensure an equitable outcome.

However, if the divorce is close to being finalized, has been finalized with a default judgment already entered, or my client is adamantly against setting the default aside, the defendant or his new attorney can file a motion with the court to set aside the default and/or the default judgment. In order to successfully do so, good cause must be shown and there must be “an affidavit of facts showing a meritorious defense.” See MCR 2.603(D)(1).

Good cause can mean that the defendant has a viable excuse as to why he failed to answer the complaint, that there was something wrong with the proceedings, or it would be extremely unjust to keep the default in place. If a judgment has not been entered yet, a personally served defendant must file to set the default aside before the judgment enters. When a default judgment has already been entered, the defendant only has 21 days from entry of that judgment to file his motion to set it aside.

As an attorney, I realize that any default judgment that I enter will be carefully reviewed by the court because it has an obligation to ensure the judgment isn’t blatantly unfair. Some people think that if the defendant doesn’t care enough to file an answer or otherwise plead his case, then that person has whatever it is coming to him. The reality is that a court can actually refuse to sign a default judgment that it finds inequitable, ensuring your client is going to be really unhappy, and your reputation as an attorney is likely going to be questioned anytime you go in front of that same judge. It’s best to keep your client’s vindictive side in check when drafting a default judgment.

It certainly makes it a lot easier to finalize the judgment when the defendant is defaulted, but if you’re the defendant, delaying the inevitable isn’t the best idea. If you’re on the other side of one of my cases, however, I don’t mind if you keep quiet.

Courtesy of Jackson County Legal News, 3/7/11, Vol. 47, No. 25

It's the month to sing: 'Reunited and it feels so good...'

Author:  Marie E. Matyjaszek

Love is in the air during the month of February – red and pink colors are plastered in every store window and heart-shaped jewelry abounds at the mall. Some people claim to love being in love, and this could be why they entertain ideas of setting aside their divorce action and reconciling with their husband or wife.

At times, there seem to be a plethora of reasons to go forward with the divorce action – he can’t pick his underwear up off the floor, you trip over screwdrivers and tools that you don’t even know the name of, let alone would ever get permission to use, and he shrinks all of your clothes. There are solutions to some of these problems – let your dogs play tug-of-war with all of his belongings that live on the floor – the financial hit of replacing his wardrobe provides significant incentive to pick up after himself. But the benefit of having a partner to help raise the kids, listen to your problems, provide a second income and health insurance are also strong reasons to stay in the marriage. If you lack culinary skills like I do, eating home-cooked meals on a regular basis helps too. And, despite all his faults, you still love the guy.

If you’ve started a divorce action but decide to give the relationship another go, you can dismiss the action with little difficulty. Assuming you did not yet serve your spouse with the divorce papers, you can file a notice of dismissal and cross your fingers that he never finds out. It’s much more common for the divorce to have been ongoing for a few months and the parties then decide to attempt reconciliation. A stipulation and order dismissing the divorce action would be signed by all parties and the judge, and entered with the court. Voila! Let the reconciliation begin.

In Jackson County, it is acceptable local practice to add in a provision allowing the parties a time period within which they can re-file the divorce action without having to wait the full statutory waiting period of 60 or 180 days, and without having to pay the divorce filing fee again. Other counties may allow for different provisions or may exclude these all together. This “grace period” provides some with peace of mind that the process can be expedited if it doesn’t work out, but others believe it’s setting the couple up to fail.

Just because I’m a divorce attorney doesn’t mean that I want couples to break up. Both parties making a concerted effort to sustain their relationship is why “every kiss begins with Kay.” Then again, if they all did that, I might be out of a job.

Courtesy of Jackson County Legal News, 2/7/11, Vol. 46, No. 18

Annulments: 'Where's that time machine when you need one?'

Author:  Marie E. Matyjaszek

We all have things in life we wish we could do over – actions, comments, clothing choices (think parachute pants) – but for most of us, it’s virtually impossible to rewind the clock. The law can provide you with the ultimate mulligan in the form of an annulment if you meet the strict criteria. Legal annulments are not the same as an annulment from a church – for example, if you obtain an annulment from the Catholic Church, the courts do not recognize this as valid.

In Michigan, two statutes, MCL 552.1 and 552.2, control the ways you can receive an annulment. MCL 552.1 requires any of the following to be met – the married couple is related (start the Kentucky jokes now), hubby or wife is already legally married to someone else (think “Sister Wives” if that guy tried to legally marry all of those women) or one of the parties is incapable of entering into a legal marriage contract. All of these reasons automatically void the marriage. MCL 552.2 provides for an annulment if one of the “spouses” is under the age of legal consent, the consent to marry was obtained by fraud or duress and there was no subsequent cohabitation of the parties.

Based on health reasons alone, it makes sense that you shouldn’t marry someone you’re related to, but the law in Michigan also prohibits marrying your mother-in-law and step-son as well. The prohibition extends past blood relationships and carries over into a relationship based on the blood relative of your spouse – see MCL 551.3 and 551.4. If you’re already married to someone else, any marriage after this is void. However, if you’re dead-set on marrying your cousin, you can get hitched in a state that permits this and then drive back to your home in Michigan, where the marriage will be recognized as valid.

Marriages where the person is incapable of entering into a marriage contract are also void, unless that person later becomes capable and chooses to continue living as husband or wife with his or her spouse.

The age of consent in Michigan is 18, but if one of your parents or legal guardians consents to the marriage, you can get married at age 16 or 17, as long as that consent is in writing (I don’t know about you, but I was far more interested in getting my driver’s license at 16 then obtaining a ball and chain). And, if you have really great parents, with both sets consenting, you can get married under 16 years of age.

Fraud or duress can also annul a marriage, with examples being telling the man he is your child’s father when you know he’s not, if you are a homosexual but do not tell your husband or wife this before you marry him or her, marrying so you can stay in the United States and not be deported, or if you’re drunk or on drugs when you get married (I think this happens a lot in Vegas). If you have no intention of consummating the marital relationship, this can also be grounds for annulment.

Kids born of an annulled marriage are still recognized as legitimate, and the courts go about dividing property, awarding custody and child support pretty much the same as in a divorce. Michigan’s statute for spousal support does not provide this right for those whose marriages have been annulled, and if the marriage was annulled due to fraud or force, the parent who was wronged must be awarded custody of the children.

Everybody makes mistakes in life and it’s only appropriate that the law would provide relief for some of those errors in judgment. Of course, if you’re Britney Spears, Zsa Zsa Gabor or Renee Zellweger, you’re not going to completely erase your now-invalid marriage because it’s been plastered across tabloids for months. Luckily, Jay Leno won’t be talking about us common folk on the late night shows, and there’s a good chance that an annulment would be a mere blip on the radar screen of scandals, reduced to non-planetary status like Pluto.

Courtesy of Jackson County Legal News, 1/17/11, Vol. 46, No. 15

Domestic quarrels can require courts to consider personal protection orders

Author:  Marie E. Matyjaszek

Personal Protection Orders, or PPOs, that are issued between people who have some sort of domestic relationship – whether they are dating, married, have a child in common, live together, or have had a relationship in the past – are under the exclusive jurisdiction of the family courts. Non-domestic PPOs are granted as well, but those are not the focus of this article.

Some PPOs are a “he said-she said” situation that may be based on fabrications created by an angry spouse; others are absolutely necessary to protect an individual’s life. The problem lies in the fact that it’s often very difficult for a judge to gamble on whether a denial of a PPO won’t lead to a person being seriously injured or even worse. Because so much domestic violence goes unreported, there often aren’t police reports to corroborate the verified statement that accompanies the PPO paperwork, and judges may err on the side of caution and issue the PPO.

PPOs can contain various prohibitions, some of which are contact with the petitioner (whether mail, phone or other types of communication), entering onto property, threatening to kill or injure the petitioner, and purchasing or possessing a firearm (which really irritates people during hunting season, but more importantly can jeopardize employment if they are required to carry a gun).

PPOs can also affect one’s rights to see his minor children, in that a PPO can prohibit the offender from taking the children unless another court order expressly allows for parenting time and that order does not violate the terms of the PPO. The respondent may also be denied access to legal records for the child if those records reveal the whereabouts of the petitioner. Michigan Court Rule 3.706 requires that the court issuing the PPO consider the custody and parenting time rights of the person against whom the PPO is issued, and whether or not restricting those rights is necessary to keep the petitioner and minor children safe. The PPO trumps any “existing custody or parenting time order until the personal protection order has expired, or the court having jurisdiction over the custody or parenting time order modifies the custody or parenting time order to accommodate the conditions of the personal protection order.”

While it is not always the case, most of the PPOs that I have seen are against the husband, with the wife as the person asking for the protection. If a divorce client comes to me with a PPO already in place, the immediate problems are obvious – he can’t go home if the other spouse resides there, so he has no access to his personal belongings and property, not to mention the fact that he has to find a place to live, and he can’t communicate with his spouse, so unless the kids are with him, he may have no ability to communicate with or see the kids either. Unfortunately, parenting time exchanges can be an opportunity for the respondent to intimidate or threaten the petitioner, which can lead to the threatened spouse refusing to cooperate with parenting time orders if a PPO is in place.

In my opinion, PPOs can be one of the most complicated issues in a divorce or custody case – they immediately paint a dark picture of the person against whom the PPO is issued. This negative image spills over, directly impacting his or her perceived ability to parent and take care of the kids.

I normally try to set up a date and time for my client to come to the marital home and retrieve some of his items, with a friend or peace officer present to avoid any conflict or further he said-she said incidents. If there is a legitimate basis for the PPO to have been issued, my best option is to ask that the PPO be set aside and a civil restraining order enter in its place, which can also place restraints on the parties’ behavior. It also helps remove the negative association connected with a PPO, and it would not be a criminal violation if the civil restraining order were violated (although you can bet that my client might wish he was in jail after I got off the phone with him.) Often times a civil restraining order will automatically allow the victim to ask for the original PPO to go back into effect if the civil order is violated.

If the PPO is truly unnecessary, a motion should be filed to terminate the PPO, which must be done within 14 days after service or actual notice of the PPO if it was issued “ex parte,” meaning it was issued without a hearing/notice to the person against whom the PPO was granted. If the court terminates the PPO after the hearing, it can help show that the petitioner may have been trying to provide the court with a negative image of the other party.

Separation and divorce lead to emotional roller coasters, with people acting in a manner that is unexpected and unexplained. Like any other type of legal action, PPOs may or may not be necessary, and it’s critical for the judge and the person requesting the PPO to thoroughly examine the reasons behind wanting one issued. By doing this, it helps ensure the legitimacy of PPOs granted, which is perhaps the most important outcome for those in need of protection.

Courtesy of Jackson County Legal News, 12/20/10, Vol. 46, No. 11

Grandparent rights analyzed: 'If Mom and Dad say no, ask Grandma!'

Author:  Marie E. Matyjaszek

Grandparents are usually a kid’s best defense against the ridiculous rules moms and dads establish, because nana and poppa just can’t say no to that adorable face. They played an important role in my life, although their excitement over the homemade gifts I crafted for them led to an inflated ego about my potholder-making skills. Walking the few blocks to Telegraph Road to load up on sugar at the Dairy Queen (with grandma’s blessing and money of course) still makes me smile.

Michigan law provides for grandparent’s rights under a limited basis. Under MCL 722.27b, a velour-sweatpants clad grandparent can ask for grandparenting time if any of the following circumstances are met: if a divorce, separate maintenance, or annulment action is pending or has been finalized between the child’s parents; one of the parents of the child is now deceased; if the child’s parents have never been married, don’t live together and paternity has been established; if legal custody of the minor child has been awarded to someone other than the parent, or if the child does not live with a parent; or if the grandparent has established a custodial environment for the minor child within a year prior to starting the grandparenting time action.

When grandma files her motion with the court for parenting time, she has to prove by a “preponderance of the evidence” (a fancy way of saying the evidence clearly supports one side more than the other) that the denial of grandparenting time creates a “substantial risk of harm to the child’s mental, physical, or emotional health.” If she can’t prove this, the court will deny the motion and grandma’s back to fattening up the neighbor kids instead.

The court gives significant deference to whether or not the parents of the child want their bundle of joy spending time with his grandparents. The law provides that if the parents are deemed to be fit, and both sign an affidavit stating that they do not want Junior to have grandparenting time, the court must dismiss the grandparent’s motion or complaint. Absent cause, a grandparent can only file a motion once every two years. Because of the rarity of grandparent’s rights, I would recommend that a qualified attorney assist any grandparent seeking parenting time to ensure that they don’t waste his or her once every two years opportunity if there isn’t enough evidence to successfully go forward.

If the grandparent has met the burden, the court must then decide if it is in the child’s best interest to have an order for grandparenting time in place. Ten specific factors are set forth in the statute for the court to consider, such as the emotional ties between the grandparent and child, any history of abuse, the health of the grandparent, and the child’s preference (if he’s old enough, because we all know any 3 year old is going to say he wants to go to the land of sugar and “Of course honey, you can have that!” Actually, that sounds really good to me and I’m perpetually 29 years old.)

Assuming the court finds that the grandparents have proven their case by a preponderance of the evidence, the court can also refer the matter to a mediator, or the Friend of the Court, in an attempt to resolve the matter within a reasonable time. Once an order is in place, new or previously undisclosed facts have to come to light to allow for a termination or modification of the grandparent’s parenting time.

Most of us can’t imagine not being able to see our grandparents, even if they did drive a station wagon with the front license plate “Let me tell you about my grandkids!” Grandparents can have an amazing and positive impact on a child’s life in so many ways. Despite my vivid memories of pink flamingos and hand-painted wooden depictions of a gardener’s backside dotting my grandparent’s front lawn, they remain unseen at my house. My neighbors are thankful that this trait skipped a few generations.

Courtesy of Jackson County Legal News, 11/15/10, Vol. 46, No. 6

'Come Out, Come Out Wherever You Are!' - Hiding assets in a divorce

Author: Marie E. Matyjaszek

When a divorce action is filed, suspicions of a spouse’s deceit rack up faster than Lindsay Lohan’s probation violations. Don’t believe that your wife’s incessant shredding of documents unequivocally means she is hiding loot – I shred my bank statements every few years so I don’t end up on the TLC show “Hoarders.” But, if you haven’t been in control of the finances, or you’ve been kept in the dark about major decisions, it doesn’t hurt to look into it.

To be honest, your wife has always been sneaky – it took you a good five years to find her hidden stash of designer shoes, and you haven’t ever been able to locate those really nice cufflinks from your ex-girlfriend once she found out who they were from. So, as you go through the discovery process during your divorce, it’s not that surprising that several of your bank accounts are missing substantial deposits.

You tell your lawyer that she obviously hid the money in an attempt to remove it from the marital estate. Your attorney issues subpoenas and conducts depositions like it’s his job (oh wait, it is), but you just can’t get the definitive proof you need, so you reach a settlement and enter the judgment. Luckily for you, your new girlfriend has a love of all things Neiman Marcus and wants nothing more than to help you find the money. She hires the best PI and finally locates your ex-wife’s divorce cash stash. Vindicated, you walk around with that “I told you so” expression on your face for weeks. What can the court do now that you’re divorced?

The preeminent case with respect to hidden assets is undoubtedly Sands v Sands, 192 Mich App 698 (1992), aff’d, 442 Mich 30 (1993). Sands provides the courts with the ability to award all of the hidden asset to the aggrieved party, and none to the party who concealed it. It is important to realize that this forfeiture is not automatic, but it can be warranted in cases if it provides an equitable division of the marital property under the circumstances. Sands’ holding should make a shifty spouse think twice before throwing a blanket over her secret divorce cash stash.

If your wife dumped money into an account owned by her ϋber-close best friend (think Oprah and Gayle), and the court finds that her BFF acted in concert with her to hide it, Gayle’s account could be divided even though neither of the spouse’s names are on the account.

Settlement agreements that are incorporated, but not merged, into your judgment of divorce provide you with other recourse – contract law. Pursuant to Grace v Grace, 253 Mich App 357 (2002), the aggrieved spouse can sue his or her ex (also known as Mr. or Mrs. “Money? What money?”) civilly for fraud, which is separate from the divorce action. The civil action also comes along with a side order of the right to a jury trial, not to mention a little more cha-ching in the form of statutory interest. However, if the judgment of divorce merges the property settlement agreement, the only recourse for your post-judgment fraud woes is MCR 2.612. Note that this court rule requires you to file your motion for relief within one year of entry of judgment.
It’s amazing how quickly trust disintegrates between spouses when a divorce is filed, and we attorneys hear a lot of “I should have had control of the checkbook” and “Why didn’t I go to the investment meetings too?” A good attorney will tell you that hindsight is 20/20, but a great attorney will tell you to stop looking for the cufflinks.

Courtesy of Jackson County Legal News, 10/25/10, Vol. 46, No. 3