Third party custody decisions sets the trial court straight

The Court of Appeals in Frowner v Smith, published opinion of the Court of Appeals, issued April 26, 2012 (Docket 305704), addressed whether a parent has to satisfy the Vodvarka threshold to change custody from a third party custodian. The Trial Court very clearly believed that it knew the law on this issue, and in fact, chastised the parent for challenging the third party custodian: "The child is already in an established custodial environment with the [third party custodians] and you have parenting time, pursuant to the last Court order. . . That’s the law in Michigan. And you should consult with a lawyer if you think it’s anything different than that. Trust me, I’m well versed in it."

　

In a published opinion, the Court of Appeals confirmed what the Michigan Supreme Court has stated in Hunter v Hunter 484 Mich 247, 263; 771 NW2d 694 (2009) – that when there are competing presumptions between a third party custodian with whom a child has an established custodial environment and a biological parent who does not have custody of the child, the latter presumption (of the parent) trumps the third party custodian. Accordingly, the Frowner court held the trial court clearly erred by holding that a parent has to demonstrate the Vodvarka threshold of proper cause or change of circumstances in order for a trial court to evaluate whether it can change custody from the third party custodian to the parent. Instead, under MCL 722.25(1), the third party custodian has to demonstrate by clear and convincing evidence that it is not in the child’s best interest to have custody in the parent. "[D]ue regard for Smith’s parental rights requires that the circuit court presume him to be the proper caretaker of his child. Enforcing this presumption requires that any opposing presumption, shielding the child from a custodial change absent a showing of proper cause or changed circumstances, must yield."

Speakers Beware

A recent premise liability case leaves this Speaker speechless. The Court of Appeal, on reconsideration, in Chesser v Radisson Plaza Hotel, unpublished per curiam opinion of the Court of Appeals, April 19, 2012 (Docket No 299776), left one Speaker without a leg to stand on, which is not surprising given the current state of premise liability in Michigan. Ms. Chesser was asked to give a short speech at an event held at the Radisson Plaza Hotel. The Radisson set up a stage with a podium in front of a table where presenters were seated while awaiting their turn to speak. The table was towards the back of the stage, the chairs were given slight room to be pulled out before there was a considerable gap between the end of the stage and a wall without a guard rail. Ms. Chesser acknowledged that she had traversed the stage just fine to get up to give her speech, however, on the way back to her seat, upon taking one step forward behind the third seat she passed, her foot "stepped on air," and down she fell. The full force of the fall was felt in her shoulder.

Not surprising to this Speaker, the defense moved for summary disposition on open and obvious. The trial court denied summary disposition, finding that there was a genuine issue of fact for the jury decide if the hazard was open and obvious. The Court of Appeals however, reversed finding that the hazard was in fact open and obvious. The Court rejected plaintiff’s argument that "because she did not see the hazards presented and nobody else has presented testimony on point, the hazards must not have been apparent." Id at 3. The Court analogized this argument to a res ipsa loquitur argument, and made clear that the standard is an objective standard, tested by whether a reasonable person would have foreseen the danger, not what a particular plaintiff knew. The Court also rejected the plaintiff’s argument on special aspects. It said that age is not a special aspect because special aspects go to the characteristics of the premises not the plaintiff. Finally, the Court was not receptive to plaintiff’s argument that the special aspects present in this situation fell within the effectively unavoidable category. However, the Court was quick to point out that plaintiff’s argument citing to "alleged industry standards for stage erection and purported admissions of negligence by defendant’s employees" would have been relevant to a special aspects argument under the unreasonably dangerous argument. Id at 3. Since plaintiffs failed to argue it, the Court says it’s abandoned, much like the Court has abandoned the majority of premises liability plaintiffs since its opinion in Lugo.

COA strictly construes MCL 600.2591 and sanctions attorney.

In the underlying action of In re Moore, unpublished per curiam opinion of the Court of Appeals, Docket No. 298100, December 22, 2011, an interested party in a probate estate (son) alleged that the personal representative provided fraudulent misinformation about the legal obligation to repay a mortgage loan secured by a mortgage on real property. The personal representative of the deceased father of Moore failed to list the mortgage loan as debt of the estate and failed to advise Moore of his obligation to pay the mortgage loan. The decedent’s estate was closed in 2007. The personal representative moved for summary disposition in this case because the 6-year statute of limitations on fraud passed. The personal representative also argued that Moore had all the information about the mortgage loan and moved for sanctions against Moore and his attorney under MCL 600.2591.

The probate court granted sanctions against Moore, but not against his attorney. The Court of Appeals modified the probate court’s sanction award to include sanctions against Moore’s attorney. The Court of Appeals stated that the statutory language and the definition of “and” were clear. It held that the statue required that sanctions be against both the party and the attorney when the trial court determines that a frivolous lawsuit has been filed.  

Court of Appeal issues published domicile decision in Kessler v Kessler

From Kessler v Kessler, a published opinion from the Court of Appeals, issued December 6, 2011.  The Court held that the lower court was not obligated to consider the change of domicile factors, MCL 722.31, when the domicile change was requested as part of the original custody order.  Moreover, the trial court still has to determine the established custodial environment, even though it was making the original custody decision and even though the parties still lived together in the same house.

Both these decisions make sense in the context of established custody law.

Whitmore v Charlevoix County Road Commission

The Michigan Supreme Court heard arguments on December 7, 2011 in a highway defect case this week in Whitmore v Charlevoix County Road Commission.  The Court had lots of questions for both sides (Bill Henn for Defendant and Liisa Speaker for Plaintiff). 

You might be able to catch a rerun on MGTV.  Stay tuned for a decision on the case by the end of the term.

SORA not Punishment for Juvenile's CSC Adjudication

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.

COA "Curbs" Governmental Immunity Claim

In Sharp v City of Benton Harbor, the COA held that a curb comes withing the definition of "a public highway, road, or street," for purposes of applying the highway exception to governmental immunity to municipalities. In Sharp, the plaintiff sustained injuries when she stepped onto a crumbling curb. The defendant city acknowledged jurisdiction over the curb where plaintiff fell. Plaintiff sued the city for failure to maintain the curb. The city moved for summary disposition on the basis of governmental immunity. The trial court denied the city's motion and the COA affirmed.

The COA reasoned that the city was not entitled to governmental immunity where the statutory purpose of making highways "reasonably safe and fit for travel" is best served by abrogating immunity for governmental agencies with jurisdiction over structures such as curbs. The Court noted that the Legislature's decision to list structures both included within and excluded from the definition of "highway" illustrated that the lists of inclusion and exclusion were not exhaustive. Consequently, unidentified structures, such as curbs, could fall within the definition of highway.