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In Berger v. Berger, a Defendant-father appealed from a judgment of divorce to the
Michigan Court of Appeals following a Trial Court ruling that the Plaintiff-mother was to receive custody of the parties two children as well as a 70/30 division of marital property. While the Court of Appeals agreed with the Trial Court’s weighing of the best interest factors in favor of the mother receiving custody, it reversed the Trial Court's 70/30 division of property. Upon review of the Trial Court’s findings, the Court of Appeals stated that it appeared the Trial Court’s motives in diverging from the normal equitable division of property were based on the desire to “punish the Defendant for his affair with Johnson (the nanny), which the court found particularly egregious.” While the Trial Court was within its discretion to consider and weigh the factor of the extramarital affair by Defendant, the Court of Appeals pointed out that it was clear the lower court gave this factor disproportionate weight and the division of property was in fact, biased and inequitable.

One might wonder how the holding in this case matches up with that of the decision recently in Jackson v. Jackson, (see blog entry dated February 20, 2008) where the Court of Appeals affirmed a 97/3 division of marital property based on fault by the Defendant in the marriage. While seemingly similar factually, the Berger case can be contrasted with Jackson because here the Defendant’s conduct (an extramarital affair) while egregious, is certainly not on par with the Defendant’s efforts in Jackson to poison her husband in order to be with another man and take her husband’s money. There, the Court said that the behavior was so egregious it was appropriate to weigh it heavily, in Berger, the Court specifically stated that while the affair by Defendant should be a factor, it should not have been weighed as heavily as the Trial Court did.

Labels: divorce, divorce appeal, equitable, Jackson County, Michigan

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COA Reverses TPR Case: Says to Trial Court Mind Your Pleas and Q’s

In DHS v Holm, the Court of Appeals reversed a decision terminating respondent’s parental rights after holding that the trial court improperly exercised jurisdiction. The respondent allegedly sexually abused two of his daughters. The abuse allegation was verified as to one of the daughters because respondent’s wife actually walked in on respondent while having sex with their daughter. DHS submitted a petition to the trial court stating that all four of respondent’s children were within the jurisdiction of the court based on respondent’s sexual abuse of two of the girls and past criminality. However, the petition only alleged sexual abuse against two of the girls and contained a paragraph about the instance witnessed by the mother. At a preliminary hearing the mother agreed to plea to that paragraph of the petition. The trial court exercised jurisdiction on that basis alone. The COA held that the trial court may only exercise jurisdiction in such cases where one of the statutory grounds expressed in MCL 712A.2(b) is met. In this instance, none of those grounds existed since it was the mother who agreed to plea to an allegation contained in the petition and not the “respondent” as required by statute. Consequently the trial court could not obtain jurisdiction and the order terminating rights was vacated.

Prior Parental Conduct Can Support Termination Prior to Paternity

In DHS v Dwayne Davis and Karen Jordan, the respondent father claimed that the trial court could not properly consider his criminal conduct while he was only the putative father (before he perfected paternity) to decide whether termination is appropriate pursuant to 712A.19b(3)(g) because, at that time, he did not owe the child a legal duty. The court disagreed, noting that the issue had only been addressed previously in one unpublished case In re Maddox. The Court agreed with the panel in Maddox, this time in a published opinion, holding that even though a putative father may not owe a legal duty to a child, he owes a moral duty as the biological father and he certainly could have offered support to his child. The court further held that the father’s failure to timely perfect paternity (he waited 15 months) could be used against him as evidence of his failure to provide care and custody. The decision appealed to a common sense interpretation found in Maddox where the Court reasoned that adopting respondent’s position as to prior conduct would, “contravene the fundamental purpose of child protective proceedings by excluding from consideration a parent’s conduct no matter how egregious, until paternity was established.” Now this sensible conclusion is binding precedent....conduct of a parent prior to establishing paternity can be used to support termination of his parental rights.

Labels: DHS, MCL 712A.2(b), termination of parental rights

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