Michigan Supreme Court Considers Family Court Judge's Lack of Candor

Wayne Circuit Family Court Judge Deborah Ross Adams

Truly, divorce is Hell.  No one can attest to this more directly than embattled Wayne County Family Court Judge Deborah Ross Adams.

After 3-years of her own gruelling divorce proceeding [understandably transferred from Wayne County to the Oakland County Family Court] during which Judge Adams ducked media-scrutiny of the disintegration of her 30-plus year marriage, the good Judge really hit the jackpot when her attempts to "right a wrong" at the midnight hour of her divorce went totally awry.

The divorce case went awry due to Judge Adams' own self-defeating and over-reaching conduct.  Both the Judicial Tenure Commission and a Special Master appointed by the Michigan Supreme Court found earlier this year that Judge Adams lied to the judge presiding over her divorce proceedings and signed her former attorney's name to a  petition without his permission, recommending a 180-day suspension without pay.

The appellate lawyer for the Judicial Tenure Commission even went beyond the recommended 180-day suspension, asserting in oral arguments before the Michigan Supreme Court that because Judge Adams has such little respect for the truth, that because she willfully misled a tribunal and jurist [i.e. Oakland Circuit Judge Mary Ellen Brennan] in open court, she did not deserve her elected seat on the Wayne County Family Court.

For his part, our friend Cyril Hall had his hands full on behalf of Judge Adams during the High Court oral arguments.  Mr. Hall emphasized his client's exemplary judicial record while downplaying the materiality of her one-time lies under Oath during a pro-confesso divorce proceeding.

Justices Robert Young and Stephen Markman pressed Mr. Hall on the importance of truth within a judicial proceeding, no matter how perfunctory, and queried whether his client was perhaps held to a higher standard, being herself a family court jurist facing a similar docket as Judge Brennan here in Oakland County.

Justice Markman, in particular, asked Cyril to "fill-in-the-blank" for the following statement:

This Court [Supreme Court] preserves the integrity of the judiciary, and maintains public trust in that judiciary, by allowing a judge to remain on the bench despite having testified falsely under oath, because...[why?].

Mr. Hall simply did not have a good answer for Justice Markman.

Having listened to the oral arguments, we here at the Law Blogger predict that the Supreme Court will uphold the Judicial Tenure Commission's recommended suspension, but will decline the request of the JTC's attorney to remove Judge Adams from the Wayne County bench.  Even Justice Young noted that this requested sanction exceeded the appellate attorney's own client's recommendation.

Hopefully for the family law litigants that will appear before Judge Adams in the upcoming years, assuming she survives this personal and professional setback and retakes her position on the Wayne Circuit's Family Court, she will have learned a valuable bedrock lesson upon which our entire legal structure is based: the truth matters in any and all judicial proceedings.

Post Script:  Judge Adams was removed as a judge by the Michigan Supreme Court's decision.  In August 2013, Governor Snyder appointed Bodman attorney Charles Hegarty to fill this judicial vacancy.

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Cyril Hall,divorce,Judge Deborah Ross Adams,Michigan Supreme Court,Oakland County divorce,Oakland County Family Court,Oakland County Judge Mary Ellen Brennan,Wayne County Circuit Court

Valid Prenuptial Agreements Require Full Asset Disclosures

Prenuptial agreements, contracts executed in the anticipation of a marriage, have long been validated in Michigan courts.  Generally, there are two contingencies covered in a typical prenuptial agreement: a) the divorce of the contracting parties; and b) the death of one of the parties.

A primary requirement to enforcing a prenuptial agreement is the "special duty" of full disclosure of all assets by both contracting parties.  This requirement was recently examined in a key (but unpublished) decision of the Michigan Court of Appeals.
The case, In the Matter of Kenneth Waller, originated right here in the Oakland County Probate Court.  The case illustrates the risk of executing a "do-it-yourself" prenuptial agreement.

The contract at issue in the Waller case waived the Wife's interest in a statutory share of her husband's estate in favor of the Husband's adult children.  The Wife challenged her Husband's estate at his death, despite her execution of the antenuptial agreement.

The contract was upheld by the probate court judge.  In reversing the probate court, the Court of Appeals focused on the asset disclosure and lack of evidence that any proper disclosure had been made by either party:

Accordingly, fair disclosure is required  under statute and caselaw in the context of
determining whether a prenuptial agreement can be deemed valid and enforceable.  The record indicates that there was no formal disclosure of assets by either decedent or Waller at the time of or before the execution of the  prenuptial agreement, such as through the presentation or exchange of written asset lists or through a verbal communication or declaration electronically recorded so as to preserve proof of disclosure.  The prenuptial agreement itself did not contain an itemization of assets and values,  nor did it indicate that disclosure of assets had taken place.  

Indeed, there is no evidence of even an informal, off-the-cuff discussion between Waller and decedent regarding the nature, extent, and value of each other’s assets prior to the execution of the agreement.  The probate court essentially found that Waller was sufficiently familiar with the assets held by decedent, making it unnecessary for decedent to redundantly disclose his assets to Waller before the agreement was signed, where  the assets had already been effectively “disclosed” to her simply through the evolution of their relationship in which familiarity with each other’s property naturally occurred.  We agree with the principle that if a party challenging a prenuptial agreement was fully aware of the other party’s assets and their value at the time of execution, an argument that there was a failure to fairly and formally disclose assets should fail; the purpose of a disclosure is to make a party  aware of what he or she may be giving up in signing a prenuptial agreement.

The Court of Appeals held that under such a record, the (rebuttable) presumption of non-disclosure should have been applied to invalidate the prenuptial agreement in that case.

Also, the Court of Appeals placed significance on the lack of a financial statement or schedule of assets.  These are typically attached to the antenuptial agreement.  This way, there can be no claim, as in the Waller case, of a failure to disclose, or a triggering of the presumption of nondisclosure.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: antenuptial agreement,divorce,divorce lawyer,Michigan Court of Appeals,Oakland County Family Court,Oakland County Probate Court,prenuptial agreement

Fathers See Gains in County Family Courts

Do the regularly maintained statistics support the contention that fathers are getting more time with their children in family courts?  To borrow a lyric from the 70’s band, Boston, “it’s more than a feeling”.

 

Divorce records maintained by the Michigan Department of Community Health reflect a trend that family law professionals have observed, and perhaps helped influence; fathers with joint custody and equal parenting time.

While family law attorneys will no doubt acknowledge this trend, hard statistics are difficult to garner.  Custody is still decided on a “case-by-case”, county by county, basis.

The form used by MDCH to collect information about divorces has a field to designate custody of minor children involved in a case.  The person completing the form, usually an attorney, selects from the basic options of joint custody, or designates custody to mother, or father.

Per usual, however, the devil is in the details.  For many practicing family law, the formal custody designation set forth in a judgment of divorce or custody order is merely a label, and a poor one at that.

Joint legal custody is usually a given; an accepted starting point.  Physical custody, however, is a more contentious battlefield.  The phrase “physical custody” does not even appear in the Michigan Child Custody Act; it is a mechanism used by family law attorneys and family court judges to identify a custodial parent.

The more significant provision is the parenting schedule set forth in the judgment.  Not only does that schedule establish how much actual contact the minor children get with each parent, it also determines the child support obligation for each parent.

Purely anecdotal evidence from our recent divorce cases is consistent with the trend that Fathers are awarded joint custody (legal and physical) more often and, roughly, equal parenting time.  One size, however, does not fit all.

An article titled Throwaway Dads, from the Michigan Bar Journal from 10-years ago, decrying a gender bias against fathers, provides an interesting barometer relative to the climate change in Michigan’s county family courts.

There must be good reasons to establish where the children of a divorce will live, and even better reasons to limit them from the home of one of their parents.  Focusing on the parenting schedule rather than the custody label is the real trend at work here.

www.clarkstonlegal.com

info@clarkstonlegal.com

Read more »

Posted in: attorney,child custody,Child Custody Act,family court,family law,family law lawyer,joint custody,Michigan Bar Journal,Oakland County Family Court

Oakland County Judge-Shuffle Shaping Up

Recently, President Obama appointed Oakland Circuit Judge Mark Goldsmith to the federal bench in Detroit. His appointment has been approved by the U.S. Senate and he is expected to assume his place at the United States District Court for the Eastern District of Michigan by year's end.

Goldsmith's appointment creates an opening on the general docket of the Oakland County Circuit Court.  Oakland Family Court Judge James M. Alexander has announced that he will vacate his place in the Family Court to assume Judge Goldsmith's docket.

Judge Alexander will be handling general civil cases, and a criminal docket.  This means that attorneys, and parties that had matters pending with Judge Alexander in the Oakland Family Court will have their matters re-assigned to another judge.

This also means that another judge will be appointed, perhaps by the end of the year, to fill Judge Alexander's spot on the family court in Oakland County.  Rumors are rampant relative to Governor Jennnifer Granholm's appointment for this seat.  Among a few others, we've heard that 51st District Chief Judge Phyllis McMillen is under active consideration.

McMillen would be well-suited for the family court appointment.  A judge's judge, McMillen brings plenty of judicial experience as well as a valuable even-handed judicial demeanor to fill this important vacancy.  Unfortunately, in our system of political judicial appointments, the right person does not always get the job.

Our system of judicial elections for at-large seats, and gubernatorial vacancy appointments makes for an ever-changing bench at the county and municipal levels.  Good judges help to instill in the general public the proper confidence in our judicial system.

www.clarkstonlegal.com
info@clarkstonlegal.com

Read more »

Posted in: Judge Phyllis McMillen,Oakland Circuit Judge James Alexander,Oakland Circuit Judge Mark Goldsmith,Oakland County Circuit Court,Oakland County Family Court

Dividing Retirement Assets: Who's Loss; Who's Gain?

In mid 2008, many divorce attorneys faced the problem of apportioning sudden significant losses in the stock and real estate markets.  Those cases depended on valuing IRAs and 401(k) plans to neutralize the risk for both parties.

The economy fell too fast and too far, however, for many sagging marriages.  During the first two quarters of 2008, many divorce litigants locked-in on values established over appreciable time.  Unless their divorce attorneys had the qualified domestic relations order (QDRO) ready at the trial date (a rare bit of forethought), significant value was lost each day of the delay.  In some cases, more than six-figures.

One such case decided during that era by Oakland County Family Court Judge Elizabeth Pezzetti, Skinner v Skinner, was upheld earlier this month in an opinion by the Michigan Court of Appeals.

Skinner is a guide for divorcing partners relative to what constitutes premarital or "separate" retirement property and defines "passsive income" relative to retirement assets.  The case also illustrates the consequences of stipulating to division dates for retirement assets, then suffering a long delay prior to full-resolution of the divorce litigation.

In Skinner, Husband stipulated to a date for purposes of valuation of the couple's retirement assets, including the pre-marital portion of his 401(k).  A two or three day trial and other dispositive court hearings were then spread over the next 3-months, during which time investment portfolios tanked, eroding nearly half the accrued value in retirement assets, across the board.

The issues in the case were: how to classify the significant interest income generated from Husband's pre-marital, and thus separate, retirement asset; and what date to use for division of the parties' IRA.

Coming into the marriage, Husband had invested approximately $15,000 in his Ford Motor Company 401(k) plan.  Over the course of the couple's 23-year marriage, more than $150,000 in marital earning contributions were made to the Ford plan.

As of the (pre-Great Recession) trial date, the value of the parties' other significant retirement asset, an IRA, was nearly $500,000.  By the time the judgment of divorce entered in mid-November, the IRA was only worth $330,000, and the Great Recession was upon us.

At trial, Husband presented a mathematically sound formula to calculate the interest generated from his pre-marital investment; these calculations were uncontested.  In her opinion dividing the marital estate, however, Judge Pezzetti ruled that 100% of the appreciation on the retirement plan was part of the marital estate.

The court of appeals affirmed Pezzetti's decision, including such gains as a component of the marital estate when a spouse, in this case the Wife, assists in the growth of the separate asset.  In the Skinner case, this assistance took the form of Wife's role as homemaker for the parents' four children.

Husband in Skinner took a double hit due to the losses incurred from the stipulated valuation date and the delay in getting the divorce judgment entered.  He cried "unfair" to the appellate court, to no avail.

In many of these cases, investor(s) nearing traditional retirement age were caught napping; some had a significant portion of their life-savings  invested in stock-based retirement assets rather than a more liquid, diversified portfolio.  Once the Great Recession took hold of the economy, divorce attorneys whose clients had already agreed to valuation dates for retirement assets lost significant value each and every day until their final judgment was entered.

Even when (painfully) aware of the issue, attorneys simply could not complete these divorces fast enough.  One of the parties, like in Skinner, usually came up short, suffering a complete loss of retirement value.

Once an agreement is reached, or when a divorce trial begins, it is crucial for the attorneys to work diligently in order to complete the often painful and emotional process of ending a long-term marriage.  Skinner tells us that no good can come from a delay.

info@clarkstonlegal.com
www.clarkstonlegal.com

Read more »

Posted in: 401(k),divorce,Great Recession,IRA,Judge Elizabeth Pezzetti,Michigan Court of Appeals,Oakland County Family Court,property settlement,retirement assets,Skinner