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Juvenile Code Doesn’t Allow a Pre-determined Flat Rate Probation Fee

Posted on Monday, July 24, 2017
             
               Michigan Court of Appeals, in People v Killich, No. 329941, held that the Juvenile Code doesn’t allow for the imposition of a flat rate probation supervision fee, and vacated the trial court order imposing the fee and remanded for a corrected order of disposition.
FACTS: 
               Respondent Taylor Killich, a juvenile, pled no contest to a juvenile petition and was placed on probation for three months. She accepted the disposition ordered by the referee, but her attorney objected to the $100 probation supervision fee, citing People v Juntikka, 310 Mich App 306; 871 NW2d 555 (2015). The argument was rejected and she requested a review hearing before the trial court.
               At the review hearing, defense counsel argued that the court did not have statutory authority under the Juvenile Code to impose a pre-determined flat rate fee and that the Juvenile Code only permitted the court to be reimbursed for individualized costs of probation supervision services extended to individual juveniles.
               Petitioner argued that three statutory provisions allowed for the imposition of a probation supervision fee: 1) MCL 712A.18(1)(b), 2) MCL 712A.18(3), and 3) MCL 712A.18(12). The trial court upheld the fee.


Opinion:
               While the Michigan Court of Appeals agreed with the trial court that local units of government share the costs for juvenile adjudication and supervision, it disagreed with the imposition of the $100 probation supervision fee, vacating and remanding the matter back to the trial court.

The court said:
  • Petitioner first contended the $100 probation supervision fee is authorized by MCL 712A.18(1)(b). The court disagreed. The language of the statute authorizes the court to order a juvenile to pay the state minimum state cost of not less than $68.00 for a felony. Thus, Killich must pay $68 but the law doesn’t authorize the $100 fee.
  • Petitioner next contends that the $100 probation supervision fee is authorized by MCL 712A.18(12). The court disagreed. The statute states that the court “shall order” a juvenile to pay an assessment fee if an order of disposition is entered. And, MCL 780.905 (3) authorizes a fee of $25.00.
  • Lastly, petitioner contends that the $100 probation supervision fee is authorized by MCL 712A.18(3). Again, the court disagreed. While the statute allows a court to impose a reimbursement provision before it has incurred any expense, whether it authorizes flat rate assessments is a different question. Because the fee doesn’t qualify as reimbursement for the “cost of service” for a particular juvenile, it isn’t authorized by the statute.
               The court, stating that there was no evidence on the record to conclude that the $100 fee is either more or less than the cost of service, vacated the trial court decision and remanded the case for entry of a corrected order of disposition.

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Michigan Appeals Court Brings Some Clarity to Frivolous Defenses and Vexatious Appeals

Posted on Monday, December 19, 2016
If you’re curious about frivolous defenses and vexatious appeals, the case of Miller v Blue CrossBlue Shield Michigan, No: 326300, unpublished, is worth a read.

The facts concern a denial of coverage by Blue Cross Blue Shield Michigan (BCBSM) for care provided to Francis Miller, who, after challenging the denial, petitioned the Washtenaw County Circuit Court to review the decision. When that court issued an order awarding attorney fees, costs and statutory interest to Miller, BCBSM appealed. The Michigan Court of Appeals (MCOA) affirmed the lower court order, finding the BCBSM defense to Miller’s argument frivolous.

Facts: Miller was a patient at Heartland’s Skilled Nursing Facility (SNF) in Ann Arbor for 3 months. Her insurance, BCBSM, denied coverage for part of that time, claiming Miller only needed custodial care for which it didn’t pay. Miller submitted the matter to Office of Financial and Insurance Regulation (OFIR), which agreed with BCBSM decision.

Miller petitioned the trial court for review of the OFIR’s order, asking the court to reverse the order, pay for her treatment and award her attorney fees for having to seek review.

The trial court framed the issue as whether “there was substantial competent and material evidence to support the OFIR’s findings.” The trial court reversed the OFIR’s order, stating that it was frivolous for BCBSM to assert that petitioner Miller did not need a nurse to administer a feeding tube in place during the time in question and that “under [MCL] 600.2591 [respondent] had no reasonable basis to believe that the facts underlying their legal position were true and . . . their position was devoid of any arguable legal merit.”

BCBSM appealed that decision, arguing the trial court erred in finding its defense frivolous. The COA disagreed.

Frivolous Defense and Vexatious Appeal

The appeals court, in writing its opinion, offered some thoughts on the frivolous defense and vexations appeals. BCBSM argued that its defense was not frivolous per MCL 600.2591, as held by the trial court. The COA disagreed and upheld the trial court because “the definition of a frivolous defense under MCL 600.2591 is comparable to the definition of a vexatious appeal under MCR 7.216(C)(1)(b), and the trial court did not clearly err in concluding that respondent’s defense was frivolous.”

Under MCL 600.2591, a frivolous defense can occur in the following 3 ways:
1. The party’s primary purpose in . . . asserting the defense was to harass, embarrass, or injure the prevailing party,
            2. The party had no reasonable basis to believe that the facts underlying that party’s legal position were in fact true, or
3. The party’s legal position was devoid of arguable legal merit.

MCR 7.216(C)(1)(b) allows the court to sanction a party advancing a vexatious “argument, brief, document, or record filed . . . [that] was grossly lacking in the requirements of propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the court.”

The COA ruled that because petitioner Miller didn’t file a complaint in circuit court and BCBSM didn’t assert its defense in a pleading, the trial court “plainly erred in awarding attorney fees under MCL 600.2591. Instead, “this case is governed by the appellate court rules, because the petitioner filed a petition for review of the OFIR’s final order in the trial court pursuant to MCL 550.1915 and MCR 7.103(A)(4), and respondent asserted its defense in a response. MCR 7.216(C); see also MCR 7.112 explaining that “the circuit court may grant relief as provided in MCR 7.216”).

The court stated in affirming the trial court’s decision:

 “Although we agree that respondent did not defend a “civil action” under MCL 600.2591, we nonetheless uphold the sanction because the definition of a frivolous defense under MCL 600.2591 is comparable to the definition of a vexatious appeal under MCR 7.216(C)(1)(b), and the trial court did not clearly err in concluding that respondent’s defense was frivolous. Further, we find that the trial court did not abuse its discretion in calculating the amount of attorney fees and costs to be awarded.

In his dissenting opinion, Hon. Mark T. Boonstra, stated “I have a definite and firm conviction that a mistake was made” and he would reverse the circuit court’s sanctions award.

He saw the issue as whether the circuit court properly sanctioned respondent (whether based on “frivolousness” or “vexatiousness”) in advocating on appeal (to the circuit court) for the affirmance of an administrative decision of OFIR.”

He argued that the majority was incorrect in equating a finding of frivolousness with a finding that an appeal is vexatious, that BCBSM argument that OFIR complied with MCL 550.1911(13) and (15) was a proper, non-vexatious argument on appeal (albeit unsuccessful) and was concerned that the trial court’s entire predicate for the its issuance of sanctions was its “medical” judgment regarding the need of skilled nursing care to administer a feeding tube. That judgement “has now spawned extensive litigation over the propriety of the resulting sanctions award.”

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Unmarried Co-Parent Denied Standing in Michigan Visitation Suit

Posted on Monday, August 1, 2016

The Michigan Court of Appeals (COA) concluded that the equitable-parent doctrine does not extend to unmarried couples, whether heterosexual or same-sex couples. And, because the doctrine doesn’t apply, Plaintiff Michelle Lake does not have standing to seek parenting time with the child. Therefore, the COA remanded the matter back to the trial court for entry of an order granting summary disposition in the defendant’s favor. Judge Douglas B. Shapiro wrote a concurring opinion, stating the circumstances where he could see a different outcome.

The facts of Lake v Putnam (No. 330955) are:

The plaintiff and defendant Kerri Putnam were in a romantic relationship from 2001 to 2014. During which defendant Putnam gave birth to an artificially inseminated child. When the relationship ended, defendant denied plaintiff visitation. Plaintiff filed suit and the Washtenaw Circuit Court granted her supervised visitation. Defendant appealed that decision to the Court of Appeals.

The COA opinion:

The court first turned to the standing issue, stating:

1.  Plaintiff is a third person as defined by MCL 722.22(k) as one who is an individual other than a parent, or one who is not a natural or adoptive parent of the child,
2.  Third persons under the Child Custody Act have limited standing in the following circumstances: a) they are guardians or limited guardians, or b) are unmarried biological parents or are related to the child but don’t have custody.
3.  Therefore, the plaintiff lacks standing since she meets none of the above scenarios.

Plaintiff also asserted she had standing under Michigan’s Equitable-Parent Doctrine. Under this doctrine a husband who is not the biological father to a child born during the course of the marriage can be considered the child’s father if:

1.  The husband and child have or the mother acknowledges their father-child relationship.
2.  The husband wants parental rights and is will to pay child support.

Plaintiff doesn’t have standing under this dshaoctrine since the parents were never married thus the child was not born during the course of a marriage. Michigan’s equitable doctrine applies only to married couples.

Plaintiff argued that her constitutional rights to due process and equal protection were violated. The court didn’t agree stating her argument wasn’t supported on the facts or the law. She was not married to the defendant and had she been so “regardless of whether the biological parent was male or female, the outcome of this appeal would have been different.”

Judge Shapiro, concurring:

Judge Shapiro, in a separate opinion, stated that the case would have turned out differently if the Plaintiff had shown that she and the defendant would have married before the child’s birth had the states where they lived, Michigan and Florida, allowed it. He referred to a COA case (Stankevichv Milliron, 31 Mich. App. 2233 (2015) where the couple married out of state before the child’s birth, which the court used to determine the standing of the non-biological parent and grant visitation. He would not limit this application to cases where the couple actually married in another state. Using the intent of Obergefell v Hodges, 15 S Ct 2584, he would expand the equitable parent doctrine to include situations where the couples were prevented by state law from marrying but lived together as a married couple and raised the child as co-parents. Because the facts of this case didn’t support that but for the state law ban the parties would have married, he supported the majority opinion.


He pointed out, however, that in a different scenario, where the parties show that they would have married had they been able, “I believe the courts would be required to recognize the parental rights of the non-biological parent” and determine custody and visitation considering the best interests of the child. 

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Spousal Support Is Modifiable Beyond the Term Set by the Trial Court in the Parties’ Judgment of Divorce

Posted on Wednesday, June 17, 2015
In Loutts v Loutts, __ Mich App __; __ NW2d __ (2015) (Docket No. 318468), the Court of Appeals addressed an issue debated among family law attorneys: whether a party could seek to modify and extend an award of spousal support set by a trial court in the parties’ judgment of divorce. After analyzing MCL 552.28 (regarding modification of spousal support) and the Supreme Court’s opinion in Rickner v Frederick, 459 Mich 371; 509 NW2d 288 (1999), the Court of Appeals held that a trial court had the authority to modify and extend spousal support beyond the term set by the trial court, even where the movant did not request the modification until after the term had expired. Loutts, slip op at 5. The Court of Appeals held, however, that in Loutts, the trial court committed harmless error in failing to interpret the law properly to permit a modification because the moving party failed to establish the requisite change of circumstances to warrant modification and extension of the spousal support. Loutts, slip op at 5. Therefore, if a party seeks to extend spousal support beyond the term set by the trial court, the party may do so even if after the term has expired, so long as the party properly proves a change of circumstances warrant the modification.

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To be or not to be? The Court of Appeals Declines to Answer the Question

Posted on Wednesday, May 8, 2013
On April 16, 2013, the Michigan Court of Appeals affirmed in a published opinion a trial court’s grant of a judgment of divorce, despite the fact that the plaintiff-wife in the divorce was mentally incompetent and the defendant-husband in the divorce was no longer male. In Estate of Devon Burnett, Docket 309640. The plaintiff incompetent spouse was 79 years old and suffering from dementia. The defendant spouse was a post-operative transgender male to female. This case brings to light two very interesting and important public policy considerations, which the Court of Appeals declined to address. First, should guardians of an incompetent spouse be able to sue for divorce on behalf of the incompetent spouse? Second, should the courts define a man and a woman by their biological sex? In dicta, the Court acknowledged that defendant’s argument that as a matter of policy, allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members merely for financial gain, was an interesting one, but noted that such a policy consideration was better left to the legislature of the Michigan Supreme Court. In this particular case, the evidence clearly established that the parties were no longer holding themselves out as married. They were living in separate states, and there was no indication that the defendant spouse provided any support to the plaintiff incompetent spouse after 2005. If the plaintiff wife had been competent, certainly no judge would question her decision to file for divorce. However, the issue does remain–what purpose does divorce serve other than a financial advantage to the guardians and beneficiaries of the incompetent spouse’s will? On the one hand, if divorce is necessary to address the possibility of an abandoned spouse leeching off of an incompetent spouse’s means for support, then certainly, divorce actions initiated by guardians of an incompetent spouse seems necessary. On the other hand, is it equitable to allow guardians to initiate divorce actions solely for the purpose of financial gain once the incompetent spouse has passed away? Also in dicta, the Court of Appeals noted that it was declining to adopt a definition of “man” and “woman” as defined by biological characteristics. Since the Michigan Constitution and Michigan law expressly forbid same sex marriage, this decision from the Court of Appeals was surprising. On the one hand, adopting the view that ones status as male or female is determined by ones chromosomal pattern could allow for couples in a transgender relationship to legally marry, despite the fact that outwardly, the marriage may appear to be one between the “same sex.” On the other hand, the decision not to define a “man” and a “woman” at law may avoid confusion with other areas of the law where biological sex may be relevant. It seems that the Court of Appeals was fearful of the policy implications of such a decision, and so, instead of answering the question–to be or not to be–it simply declined to respond. Such an action from the Michigan Court of Appeals is not surprising. Just a few months ago, it acted similarly in its published decision regarding custody of a child between two same sex parents that were legally married in another state, as described in this blog for Usitalo v Landon.

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A Pyrrhic victory in attorney's fee challenge

Posted on Friday, February 8, 2013
The Michigan Supreme Court reversed in a part a trial court's award of attorney's fees in a divorce case. But the victory was hollow for the party who brought their attorney's fee challenge all the way to the Supreme Court in Desai v Desai, issued February 6, 2013 (Docket 144818). In Desai, the appellant and his attorney had been sanctioned by the trial court jointly and severally for $10,044.25 in attorney's fees for filing a frivolous action. The Court of Appeals affirmed the trial court's sanction in an unpublished opinion, Desai v Desai, issued December 8, 2011 (Docket 300330). The appellant proceeded to challenge the sanction in the Supreme Court. Over a year later, the Supreme Court agreed that one cost item included in the trial court's sanction was "for services that were not incurred in connection with the plaintiff’s complaint for divorce." The Supreme Court thus subtracted that $342 item from the attorney's fees sanction. It is a pyrrhic victory because the appellant paid $375 to file the supreme court application (not to mention attorney's fee for preparing the application, and the costs and fees associated with the appeal to the Court of Appeals) all to reduce the judgment by a mere $342.

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SORA not Punishment for Juvenile's CSC Adjudication

Posted on Friday, May 27, 2011
In a published opinion, In re TD, the Court of Appeals held that application of SORA was not "punishment," so it could not be deemed unconstitutional on grounds that it was cruel and unusual as applied to the respondent.

The respondent was convicted of CSC II at the age of 15 and was subject to registration requirements of SORA. When he reached 18, he petitioned the trial court for relief from SORA's registration requirements. The trial court recognized that the statute did not provide an exemption for his listed offense, but granted respondent's requested relief anyway, finding that SORA, as applied to the juvenile, was cruel and unusual punishment.

The Court of Appeals reversed. The Court concluded that SORA was not "punishment" and thus, could not be cruel and unusual punishment. Consequently, the the statute was constitutional as applied to respondent.

In a well-written concurrence, recent judicial appointee, Judge Amy Krause, raised some valid concerns with application of SORA to juvenile offenses. Judge Krause opined that "the critical problem is simply that registering people who are demonstrably not dangerous makes it more difficult conceptually to regard SORA as the non-punishment tool it should be."

Fortunately, new legislation addresses some of these concerns by providing that no juvenile offenders will be listed on the public registry. The changes also remove reporting requirements for certain offenses depending on the ages of the parties involved. While these changes do not eradicate every concern related to application of SORA to juveniles, it is a good starting point.

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COA "Adopts" Use of Stays in the Battle of Paternity Act vs. Adoption Code

Posted on Wednesday, December 23, 2009
The COA released a published opinion providing some clarification on whether paternity actions can ever take precedence over adoption proceedings. In MKK, Minor, the COA reversed the trial court's order denying the putative father's motion to stay adoption proceedings pending resolution of his paternity action. The COA also reversed the trial court's order denying him custody of the minor child.

The putative father filed his paternity action in April 2008. Just a month later, a petition to adopt was filed along with the birth mother's petition for a hearing to identify the father and terminate his parental rights. The putative father argued that the adoption proceedings should be stayed pending the outcome of the paternity action because the paternity action would render the adoption proceedings moot. At the hearing, DNA results were revealed showing a 99.99 probability that the putative father was, in fact, the child's biological father. Despite this evidence, his motion to stay the adoption proceedings was denied. The court continued with a best interest hearing under the adoption code, finding that custody with the putative father was not in the child's best interest, but declining to terminate his parental rights.

The COA cited the statutory exception to the statutory mandate that adoption proceedings take priority reasoning adoption proceedings may be stayed upon a showing of good cause, to be determined on a case-by-case basis. The COA held that the trial court erred in denying the motion in this particular case because the putative father was the biological father, wished to be present for the child's birth, had been diligent in attempting to perfect paternity, and he had made efforts to prepare for fatherhood.

Foreshadowing commentary to come, the COA stated, "we do not intend to create a "race to the courthouse," where a paternity action takes precedence over an adoption proceeding merely because the paternity action was filed first; rather, the timing of a paternity claim is but one factor to be considered in determining whether there is good cause under MCL 710.25(2) to stay adoption proceedings." It further explained that because Michigan courts follow the presumption that the best interests of a child are served by awarding custody to the natural parents, giving a paternity action priority over an adoption proceeding does not necessarily conflict with protecting the best interests of the child.

Given the conflicting views on the interplay between the Adoption Code and Paternity Act, there is sure to be substantial commentary on this new opinion--"stay" tuned!

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