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In Heiden v Heiden, unpublished opinion in the Court of Appeals, issued February 26, 2015 (Docket No. 318245), the Court of Appeals used the statutory rules governing binding domestic-relations alternative dispute resolution (ADR) to set aside a common law mediation agreement that purported to divide the parties' property for their judgment of divorce. On October 15, 1987, the parties executed an antenuptial agreement in contemplation of marriage, which stated, “all personal property owned respectively by them shall remain their separate property, no spouse shall have any right in the property of the other spouse, even in the event of the death of either party.” The husband had separate funds that undisputedly flowed from a personal injury lawsuit settlement. In 2012, the wife filed for divorce. When the wife sought a declaratory judgment that the antenuptial agreement was invalid, the trial court held that the plain language of the antenuptial agreement indicated that it did not apply to a divorce action between the parties. The parties then proceeded to mediation based on this understanding. The parties reached a mediation agreement, but the husband hired new counsel who sought to set aside the mediation agreement pursuant to MCR 2.612(C)(1). The husband argued that the mediation agreement was unconscionable because he was required to pay more in spousal support per month than was available to him, his counsel coerced him to sign it, and he was unable to assess the situation at the time of the mediation because he is a diabetic and his blood sugar dropped too low. The trial court refused to set aside the agreement, instead incorporating it into the parties' judgment of divorce. The husband appealed.

The Court of Appeals first held that the trial court committed legal error by interpreting the antenuptial agreement not to apply to a divorce between the parties. The antenuptial agreement also was enforceable as to the divorce under Reed v Reed, 265 Mich App 131, 142; 693 NW2d 825 (2005), even though antenuptial agreements were against public policy at the time of its execution. Next, the Court of Appeals held that the parties and their attorneys failed to consider that absent an antenuptial agreement there are other ways to establish property as separate and also to invade that separate property, and, therefore, both the trial court and the parties and their counsel failed to properly characterize assets as marital or separate. The final issue the Court of Appeals addressed before reaching the specific issue of setting aside the mediation agreement was that the mediation agreement was financially inequitable because it gave the wife “more than four times [the husband's] available income” through the spousal support award, which would also deplete his source of income -- annuity and IRA accounts -- before the nonmodifiable ten-year spousal support term ended.

Finally, the Court of Appeals addressed the motion to set aside the mediation award, holding that the trial court abused its discretion in denying the husband's motion. The Court of Appeals first held that the trial court's error in interpreting the antenuptial agreement affected the mediation award. It then looked to the law governing domestic relations ADR, specifically the rule that relief from the agreement should be granted if "the agreement was procured by 'corruption, fraud, or other undue means.'" Unpub op at 10, quoting Cipriano v Cipriano, 289 Mich App 361, 367; 808 NW2d 230 (2010), quoting MCL 600.5081. The Court of Appeals noted, though, that in order for an ADR agreement to be set aside "'because of an error of law, the error must have been so substantial that, but for the error, the award would have been substantially different.'" Unpub op at 10, quoting Cipriano, 289 Mich App at 368. The Court of Appeals held that relief must be granted in this case because the trial court's error and the parties' and their counsels' continued misapplication of the law was substantial enough that that property would have been awarded substantially different. The Court of Appeals vacated the mediation agreement and the property and spousal support awards and then ordered that on remand the trial court categorize the parties' assets as marital or separate and then “divine an equitable distribution of the assets.” Unpub op at 10. 

Though unpublished, this case provides another option for parties to set aside a common-law mediation agreement by applying the rules of statutory ADR.

In In re Dorsey, 306 Mich App 571; 858 NW2d 84 (2014), the appellant's son had been adjudicated delinquent and was subject to the jurisdiction of the family division of the circuit court. A child welfare/abuse and neglect case involving the appellant mother and the son ran concurrent with the juvenile adjudication hearings. Based on prior drug usage, under both the juvenile delinquency case and the child welfare case, the appellant mother was ordered to submit to drug testing. Once the child welfare case was closed, the appellant mother refused to comply with drug testing without consulting with her attorney. At a show cause hearing for failure to comply with the drug test order in the juvenile adjudication case, she said that she thought because her abuse and neglect case was over, she did not need to submit to drug testing, but that her son's probation officer had told her she wanted appellant mother to submit to drug testing for the delinquency case. The circuit court held her in contempt, sanctioning her with fines and 93 days in jail. The mother appealed the contempt order.

The Court of Appeals first affirmed that under MCL 712A.6 a family division of the circuit court exercises jurisdiction over a parent (or other adult) as it relates to a juvenile subject to the circuit court's jurisdiction. The Court of Appeals stated, quoting MCL 712A.6, that this "incidental jurisdiction" gives the circuit court authority to "make orders affecting adults as in the opinion of the court are necessary for the physical, mental, or moral well-being of a particular juvenile or juveniles under its jurisdiction."

The Court of Appeals then addressed an issue of first impression for Michigan courts: whether a trial court's order subjecting a parent of a child adjudicated delinquent (and under formal probation) to random drugs screens constitutes an unconstitutional search and seizure. The Court of Appeals first held that the random drug testing did constitute a Fourth Amendment 'search,' which necessitated a determination of whether the search was constitutionally reasonable. The Court of Appeals then ruled that the random drug testing order was an unconstitutional search. Adopting the reasoning of the Idaho and Utah Supreme Courts, the Court of Appeals held that though the state has a legitimate interest in protecting and rehabilitating juveniles adjudicated delinquent, "appellant did not enjoy a diminished expectation to privacy merely by virtue of the fact that her son had been adjudicated delinquent." The Court of Appeals noted that the purpose of the testing was ultimately general crime control and related to collection of evidence for law enforcement. However, despite its unconstitutionality, the Court of Appeals held that the issue of the constitutionality of the drug testing order was not an issue before the court because the issue on appeal was the finding of criminal contempt against the appellant mother. The Court of Appeals held that a person must object to the order when it is issued or the validity of the order will be waived, even if it is a constitutional challenge. A contemnor cannot relitigate the legal or factual basis for the order under which she has been held in contempt. Therefore, even though the drug testing order was unconstitutional, the Court of Appeals still affirmed the contempt holding against the appellant mother.

Therefore, despite the unconstitutionality of the contempt order, the Court of Appeals affirmed the contempt order in its entirety. This opinion, though apparently in line with precedent, raises some serious concerns for those subject to unconstitutional orders, especially where the party was in pro per and would likely not have the knowledge to object to the underlying order. These lines of opinion seem to undermine an individual's right to counsel for criminal proceedings since a major avenue of attack – the validity of the order – is waived by the time the right to counsel attaches. 

This case is currently pending on application in the Michigan Supreme Court.

In Eddington v Torrez, 311 Mich App 198 (2015), the Court of Appeals addressed a narrow issue regarding defamation cases: "whether statements made to police regarding criminal activity are absolutely privileged and therefore immune from suit for defamation." The Court of Appeals first discussed the inception of the privilege in the Michigan Supreme Court case Shinglemeyer v Wright, 124 Mich 230; 82 NW 887 (1900). In Shinglemeyer, the Supreme Court adopted a rule of absolute privilege for statements made to police regarding criminal activity, holding that it would be against public policy to allow reports made to the police form the basis of a defamation claim. The appellant in Eddington disputed that the privilege set forth in Shinglemeyer persisted. However, the Court of Appeals noted that Shinglemeyer had never been overruled and had repeatedly been positively cited in Supreme Court opinions, even in one where the communications to the police were done with malicious intent. The Court of Appeals further indicated that the public policy concerns discussed in Shinglemeyer still remained true: "[W]e could not reliably have practical law enforcement if victims of crimes, or those with knowledge of crimes, were forced to risk a lawsuit upon reporting what they know or what they suffered." Recognizing the concern that reports to the police can on occasion be made maliciously, the Court of Appeals noted that criminal statutes make it a crime to lie to the police about an ongoing investigation under MCL 750.479c and to make an intentionally false report to the police under MCL 750.411a. Therefore, the Court of Appeals stated, malicious reporting would not be protected unduly by the absolute privilege and immunity from a defamation claim. The Court of Appeals also found no meaningful difference with regard to statements made to the police between those made to initiate an investigation and those made during an ongoing investigation. Finally, the Court of Appeals noted that if the law set forth in Shinglemeyer were to be changed, it would have to be the Legislature or the Supreme Court that did so.