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The Court of Appeals' jurisdiction in post judgment custody appeals has long been a vexing area for family law attorneys. MCR 7.202 grants an appeal by right to post judgment orders affecting custody. Due to the uncertainty in how the Court of Appeals interprets 7.202(6)(a)(iii), many times appellate attorneys will simultaneously file a claim and an application. But there is additional cost and rush to do an application in 21 days. Obviously this type of uncertainty is not ideal. For a period of time the Court of Appeals seemed more willing to accept appeals of orders as post judgment orders affecting custody. The trend seemed to be that the court would accept a claim if the appeal was brought by a custodial parent, even when it was just a parenting modification. See Simon v Simon (Docket No. 308528); Jackson v Anderson (Docket No. 315648). But the Court of Appeals was more likely to dismiss the appeal by right when a non-custodial parent challenged the custody order. See, e.g., Flick v Marsh (Docket No. 327679). The Court of Appeals seemed to resolve the uncertainty in Wardell v Hincka, 297 Mich App 127 (2012) (Docket No. 308243) seemed to resolve this issue when it held that an order need not change custody to “affect” custody, and that a denial of a motion to change custody “affects” custody just as a grant of such a motion does.

However, the Court of Appeals changed the direction again last year in Madson v Jaso (Docket No. 331605) and Ozimek v Rodgers (Docket No. 331726). After dismissing the appeals by right for lack of jurisdiction, the parties appealed to the Supreme Court and the Supreme Court remanded for the Court of Appeals to issue an opinion on the jurisdictional issue. The result was 2 opinions issued on the same day. In Madson the sole physical custodian challenged a parenting time order that completely swapped the schedule from the father having most of time and mother having alternating weekends to the converse. The Court of Appeals however characterized it as a "make up" parenting time order. 

 Ozimek is a legal custody issue when a change of school was denied. The Court said legal custody does not "affect custody."

            Both cases are pending in the Supreme Court for a second time and family law appellate attorneys anxiously await a decision.

Argument:

Bertin sued Mann for negligence, alleging that Mann acted with “active negligence” and “without due care and caution” when he struck him with the cart. Mann raised two affirmative defenses. One, the event was an unforeseeable accident and, two, Bertin’s own negligence was the sole cause or contributing cause of the accident.

The parties disagreed on the applicable standard of care. Bertin argued it should be ordinary negligence while Mann argued it should be reckless misconduct under the case of Richie-Gamester because the parties were playing a game of golf, a recreational activity. The trial court agreed with Mann and the jury entered a verdict for him.

The Court of Appeals agreed with Bertin. It said that Richie doesn’t imply that where injury occurs during a recreational activity, the incident must be held to the reckless misconduct standard. “Indeed, we think it more likely that players participate with the expectation that no liability will arise unless a participant’s actions exceed the normal bounds of conduct associated with the activity.”

Bertin raised two theories for applying the ordinary negligence standard:

1. A golf cart is a “motor vehicle” and thus is subject to the civil liability provisions of the Motor Vehicle Code.
2. A golf cart is not an inherent component of the game of golf and thus doesn’t full under the “reckless misconduct” standard of care under

The court dismissed the motor vehicle argument but agreed with the argument that the risks associated with the using of a golf cart are not an inherent component of golf and thus not subject to the “reckless misconduct” standard of care.

The court applied the following reasoning:  

1. The US Supreme Court in PGA Tour, Inc. v Martin ruled that walking wasn’t an essential part of golf and that using a golf cart wouldn’t change the nature of the game in the context of the American with Disabilities claim.
2. The US Golf Association’s Rules of Golf don’t refer to golf carts.
3. The Farmington Hills Golf Course doesn’t require the use of golf carts.

The Court of Appeals, holding that the trial court applied the wrong standard of care, vacated the jury’s verdict, reversed the trial court’s verdict and remanded the case for further proceedings.

Confused about when you may and may not pursue a private cause of action for double damages under the Medicare Secondary Payer Act? You are not alone! This article surveys recent case law and outlines when you can, and cannot, bring a private claim for double damages.

HERE is the link to Sandra Lake's article written for the Michigan Association for Justice Journal, Fall 2016.