Pay on death provisions are arrangements between a bank or credit union and an account holder who has designated specific beneficiaries to receive some or all of the account holder’s assets in the bank or credit union. The immediate transfer of the assets is triggered by the death of the account holder. Pay on death provisions may be in effect for a person’s checking account, savings account, security deposits, savings bonds and other deposit certificates.
HTTP://WWW.ATTORNEYBANKERT.COM
Pay on death provisions may be useful to secure payment for the recipient spouse, but are not secure since the account owner (obligor) retains control of the asset, the ability to spend the funds, and the ability to change the pay on death designation at will. HTTP://WWW.NOJOKETOBEBROKE.COM
It is important for the attorney to remind the client after the divorce is final to review all of his or her assets and to change any pay on death provisions which may have been established during the marriage, since the bank or credit union must release the funds to the named beneficiary on death of the account owner. HTTP://WWW.DUMPMYSPOUSE.COM
Thursday, April 21, 2011
Friday, May 28, 2010
Attorney fees,what should you pay!
SAGINAW DIVORCE REVIEWED BY ATTORNEY TERRY BANKERT A DIVORCE LAWYER. For immediate help with your family law questions call 810-235-1970.
THE SAGINAW DIVORCE COST AND ATTORNEY FEE CASE
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
(This opinion has been modified for media presentation)
To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf
SAAD, J.
Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.
V. COSTS AND ATTORNEY FEES
Plaintiff argues that the trial court erred in awarding her only a fraction of the costs and attorney fees she sought. This Court reviews a trial court’s decision to award attorney fees in a divorce action for an abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). The findings of fact on which the trial court bases its decision are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007).
A court in a divorce action may award attorney fees to enable a party to carry on or defend the action. MCR 3.206(C)(1); Stallworth, 275 Mich App at 288-289. MCR 3.206(C)(1) provides that a party to a divorce action may request the trial court to order the other party to pay all or part of the party’s attorney fees. The party seeking attorney fees must allege facts sufficient to show either that the party is unable to bear the expense of the action, and that the other party is able to pay, MCR 3.206(C)(2)(a), or that the attorney fees were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, MCR 3.206(C)(2)(b). The party requesting the attorney fees has the burden of showing facts sufficient to justify the award. Borowsky v Borowsky, 273 Mich App 666, 687; 733 NW2d 71 (2007).
Attorney fees in a divorce action are awarded only as necessary to enable a party to prosecute or defend a suit. Gates, 256 Mich App at 438-439. It is well settled that a party should not be required to invade assets to satisfy attorney fees when the party is relying on the same assets for support. Id. The property division and the award of attorney fees “function in tandem,” and a party may be ordered to pay the opposing party’s attorney fees if that party was awarded insufficient liquid assets in the property division to pay the fees and costs. Olson, 273 Mich App at 354. In Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999), a wife who received $1.2 million in marital assets could not show that she was unable to bear the expense of the divorce action; consequently, this Court concluded that she was not entitled to attorney fees. However, in Ozdaglar v Ozdaglar, 126 Mich App 468, 473; 337 NW2d 361 (1982), this Court held that the plaintiff wife, who was still unemployed, was entitled to attorney fees, notwithstanding her substantial property award, on the ground that she should not be required to pay attorney fees from her share of the marital estate, which she needed to support herself.
Plaintiff submitted a Certification of Plaintiff’s Counsel Fees and Costs to the trial court on June 6, 2008. Plaintiff retained George Snyder of Meyer, Kirk, Snyder & Lynch, PLLC, from Bloomfield Hills and Timothy Fryhoff of Fryhoff & Lynch, PLLC, Bloomfield Hills, as well as Christopher Picard of Burkhart, Picard, Tiderington & McLeod, PLLC, of Saginaw, to represent her in the action. Plaintiff submitted billing documentation that purportedly adjusts the Detroit- area attorneys’ fees to the prevailing rates for legal services in the Saginaw area, and that also adjusted the fees to eliminate charges for duplicate services. She requested a total of $80,226.11, plus $16,400 for reimbursement of Selley’s expert fee. Defendant fails to acknowledge this submission, and argues that plaintiff failed to submit any documentation in support of her request. He also argues that plaintiff was required to present proof of attorney fees in the course of trial, notwithstanding MCR 3.206(C)(1), which provides that a party “may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.”
The trial court failed to explain its decision to award plaintiff only $25,000, less than half of the amount requested. Without adequate findings of fact, there is no basis for determining whether the trial court’s award represented an abuse of discretion. Under the circumstances, the error is not harmless. Although defendant questions plaintiff’s need for three attorneys, including two from out-of-town, it is not obvious that the fees were unreasonable after they were adjusted for local rates and to eliminate redundancy. Moreover, plaintiff did not receive any liquid assets other than the payment of alimony-in-gross over a six-year period. Plaintiff will presumably need to use these funds for living expenses, including a home in the Saginaw area. This circumstance raises the question of whether plaintiff must invade assets that she needs for living expenses in order to pay her attorney fees. Ozdaglar, 126 Mich App at 473. Accordingly, the trial court should make appropriate findings on remand.
Defendant also argues that the trial court properly denied plaintiff’s expert fee because the trial court gave no credence to Selley’s opinion. We have found no authority for the principle that an award of costs to cover an expert’s fee is in any way tied to the party’s success regarding the matter on which the expert testified. The trial court’s rejection of Selley’s analysis does not necessarily mean that plaintiff retained him to advance, in defendant’s words, “a totally bogus claim.” Moreover, our ruling regarding plaintiff’s right to discovery of the P.C.’s business records to establish defendant’s interest in the P.C. undermines defendant’s position regarding expert fees. Accordingly, this argument is without merit. Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
[2]
CAP HEADLINES OR (trb)
Terry Bankert
http://attorneybankert.com
MISC
FOOTNOTES
1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.
-----
THE SAGINAW DIVORCE COST AND ATTORNEY FEE CASE
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
(This opinion has been modified for media presentation)
To see original document, http://coa.courts.mi.gov/documents/opinions/final/coa/20100504_c288923_61_288923opn.pdf
SAAD, J.
Plaintiff Cheri Woodington appeals the trial court’s judgment of divorce. She argues that the trial court made inadequate findings of fact in regard to the value of marital property, the date of valuation, and the status of certain assets as marital or separate property. She also raises issues concerning discovery, spousal support, and attorney fees. Defendant Kamran Shokoohi cross-appeals and contends that the trial court erred in failing to divide the property in accordance with the parties’ prenuptial agreement. We affirm some aspects of the trial court’s judgment; however, because the inadequacy of the trial court’s findings on several of these matters precludes meaningful appellate review, we remand for further proceedings.
V. COSTS AND ATTORNEY FEES
Plaintiff argues that the trial court erred in awarding her only a fraction of the costs and attorney fees she sought. This Court reviews a trial court’s decision to award attorney fees in a divorce action for an abuse of discretion. Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825 (2005). The findings of fact on which the trial court bases its decision are reviewed for clear error. Stallworth v Stallworth, 275 Mich App 282, 288; 738 NW2d 264 (2007).
A court in a divorce action may award attorney fees to enable a party to carry on or defend the action. MCR 3.206(C)(1); Stallworth, 275 Mich App at 288-289. MCR 3.206(C)(1) provides that a party to a divorce action may request the trial court to order the other party to pay all or part of the party’s attorney fees. The party seeking attorney fees must allege facts sufficient to show either that the party is unable to bear the expense of the action, and that the other party is able to pay, MCR 3.206(C)(2)(a), or that the attorney fees were incurred because the other party refused to comply with a previous court order, despite having the ability to comply, MCR 3.206(C)(2)(b). The party requesting the attorney fees has the burden of showing facts sufficient to justify the award. Borowsky v Borowsky, 273 Mich App 666, 687; 733 NW2d 71 (2007).
Attorney fees in a divorce action are awarded only as necessary to enable a party to prosecute or defend a suit. Gates, 256 Mich App at 438-439. It is well settled that a party should not be required to invade assets to satisfy attorney fees when the party is relying on the same assets for support. Id. The property division and the award of attorney fees “function in tandem,” and a party may be ordered to pay the opposing party’s attorney fees if that party was awarded insufficient liquid assets in the property division to pay the fees and costs. Olson, 273 Mich App at 354. In Kosch v Kosch, 233 Mich App 346, 354; 592 NW2d 434 (1999), a wife who received $1.2 million in marital assets could not show that she was unable to bear the expense of the divorce action; consequently, this Court concluded that she was not entitled to attorney fees. However, in Ozdaglar v Ozdaglar, 126 Mich App 468, 473; 337 NW2d 361 (1982), this Court held that the plaintiff wife, who was still unemployed, was entitled to attorney fees, notwithstanding her substantial property award, on the ground that she should not be required to pay attorney fees from her share of the marital estate, which she needed to support herself.
Plaintiff submitted a Certification of Plaintiff’s Counsel Fees and Costs to the trial court on June 6, 2008. Plaintiff retained George Snyder of Meyer, Kirk, Snyder & Lynch, PLLC, from Bloomfield Hills and Timothy Fryhoff of Fryhoff & Lynch, PLLC, Bloomfield Hills, as well as Christopher Picard of Burkhart, Picard, Tiderington & McLeod, PLLC, of Saginaw, to represent her in the action. Plaintiff submitted billing documentation that purportedly adjusts the Detroit- area attorneys’ fees to the prevailing rates for legal services in the Saginaw area, and that also adjusted the fees to eliminate charges for duplicate services. She requested a total of $80,226.11, plus $16,400 for reimbursement of Selley’s expert fee. Defendant fails to acknowledge this submission, and argues that plaintiff failed to submit any documentation in support of her request. He also argues that plaintiff was required to present proof of attorney fees in the course of trial, notwithstanding MCR 3.206(C)(1), which provides that a party “may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.”
The trial court failed to explain its decision to award plaintiff only $25,000, less than half of the amount requested. Without adequate findings of fact, there is no basis for determining whether the trial court’s award represented an abuse of discretion. Under the circumstances, the error is not harmless. Although defendant questions plaintiff’s need for three attorneys, including two from out-of-town, it is not obvious that the fees were unreasonable after they were adjusted for local rates and to eliminate redundancy. Moreover, plaintiff did not receive any liquid assets other than the payment of alimony-in-gross over a six-year period. Plaintiff will presumably need to use these funds for living expenses, including a home in the Saginaw area. This circumstance raises the question of whether plaintiff must invade assets that she needs for living expenses in order to pay her attorney fees. Ozdaglar, 126 Mich App at 473. Accordingly, the trial court should make appropriate findings on remand.
Defendant also argues that the trial court properly denied plaintiff’s expert fee because the trial court gave no credence to Selley’s opinion. We have found no authority for the principle that an award of costs to cover an expert’s fee is in any way tied to the party’s success regarding the matter on which the expert testified. The trial court’s rejection of Selley’s analysis does not necessarily mean that plaintiff retained him to advance, in defendant’s words, “a totally bogus claim.” Moreover, our ruling regarding plaintiff’s right to discovery of the P.C.’s business records to establish defendant’s interest in the P.C. undermines defendant’s position regarding expert fees. Accordingly, this argument is without merit. Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
CHERI L. WOODINGTON, Plaintiff-Appellant/Cross-Appellee, v KAMRAN SHOKOOHI, Defendant-Appellee/Cross- Appellant.
Docket No(s) 288923, Published 05/04/2010
Trial Court/lower Court Saginaw County Circuit Court.
Trial Court Judge Robert L. KaczarekLower Court Docket No(s) LC No. 06-060841-DM
[2]
CAP HEADLINES OR (trb)
Terry Bankert
http://attorneybankert.com
MISC
FOOTNOTES
1 Staple v Staple, 241 Mich App 562, 566; 616 NW2d 219 (2000). We note that the holding in Staple is inapplicable because Staple applies “to judgments entered pursuant to the parties’ own negotiated settlement agreements, not to alimony provisions of a judgment entered after an adjudication on the merits.” Id. at 569.
-----
Wednesday, March 17, 2010
Lack of agreement on schooling can change custody?
My name is Terry R. Bankert I am a Flint Divorce Attorney. In a recent Michigan Court Of Appeals unpublished decision several issues were discussed. This unpublished opinion was released 3/9/2010. It involved a Lapeer County Divorce Case 95-021724. As a Flint Divorce Lawyer this is the law we rely on in Flint Family Court and in State Wide Divorce actions. To find your courts state wide see, http://www.dumpmyspouse.com . The opinion stated in part the following.
Father protested to the higher court the Lapeer family Court trial court’s order changing a prior custody order under which the parties had week on/week off parenting time with their son, to permit the child to attend Cranbrook School as a boarding student. The trial court did not change the parties’ joint legal custody. The Michigan Court said the Lapeer Court was right.
Did you know that in a Divorce case action post judgement before the trial court can change a child’s custody, an evidentiary hearing must be conducted. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
A Family Law Court before changing child custody is required prerequisite to the evidentiary hearing, the trial court must determine that there is “proper cause” or there has been a “change of circumstances.” Vodvarka v Grasmeyer, 259 Mich App 499, 508-514; 675 NW2d 847 (2003).
Did you know that changing a child’s established custodial environment requires the trial court to consider
the twelve “best interest factors” under MCL 722.23 and find “clear and convincing evidence
that [the change] is in the best interest of the child.” Foskett v Foskett, 247 Mich App 1, 5; 634
NW2d 363 (2001).
Did you know that a Flint Family law Court as this Lapeer County Court must “evaluate each of the factors contained in the Child Custody Act, MCL 722.23 . . . and state a conclusion on each, thereby determining the best interests of the child.” Thompson, supra at 363 (citations omitted); see also Foskett, supra at 9.
When a parent wants to change custody there are hurdles. The purpose of these hurdles is to “to minimize unwarranted and disruptive changes of custody orders,” except under the most compelling circumstances. Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995); see also Foskett, supra at 6.
CHILDREN DO NOT DECIDE THE CHANGE IN CUSTODY
In this case fathers argument is simply that (1) the parties’ son’s wishes are the only
reason for changing the parties’ custody;1 and (2) the law is that a child’s wishes, standing alone,
cannot constitute proper cause, changed circumstances, or the reason for changing custody.
The Court of Appeals indicated that it is up to the local Family law Court to decide how much weight to give a childs stated preferences.
Did you know that Parents who have joint legal custody of a child must agree upon important decisions that
affect the child’s welfare. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 295-296; 750
NW2d 597 (2008).
One of those important decisions is the child’s placement in a particular
school. I “If [the parents] are unable to agree, the trial court must resolve the dispute
according to [the child’s] best interest.” The parties here could not agree which school
The child would attend, so the trial court was not merely permitted to resolve that dispute, it was
required to resolve that dispute. The parties’ undisputed inability to agree on the childs high
school “could have a significant effect on the child’s life to the extent that a reevaluation of the
child's custodial situation should be undertaken,” and thus constitutes “proper cause” to revisit a
custody order. See Vodvarka, supra at 854.
Posted here by
Terry Bankert
http://www.flintfamilylaw.com
Father protested to the higher court the Lapeer family Court trial court’s order changing a prior custody order under which the parties had week on/week off parenting time with their son, to permit the child to attend Cranbrook School as a boarding student. The trial court did not change the parties’ joint legal custody. The Michigan Court said the Lapeer Court was right.
Did you know that in a Divorce case action post judgement before the trial court can change a child’s custody, an evidentiary hearing must be conducted. Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
A Family Law Court before changing child custody is required prerequisite to the evidentiary hearing, the trial court must determine that there is “proper cause” or there has been a “change of circumstances.” Vodvarka v Grasmeyer, 259 Mich App 499, 508-514; 675 NW2d 847 (2003).
Did you know that changing a child’s established custodial environment requires the trial court to consider
the twelve “best interest factors” under MCL 722.23 and find “clear and convincing evidence
that [the change] is in the best interest of the child.” Foskett v Foskett, 247 Mich App 1, 5; 634
NW2d 363 (2001).
Did you know that a Flint Family law Court as this Lapeer County Court must “evaluate each of the factors contained in the Child Custody Act, MCL 722.23 . . . and state a conclusion on each, thereby determining the best interests of the child.” Thompson, supra at 363 (citations omitted); see also Foskett, supra at 9.
When a parent wants to change custody there are hurdles. The purpose of these hurdles is to “to minimize unwarranted and disruptive changes of custody orders,” except under the most compelling circumstances. Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995); see also Foskett, supra at 6.
CHILDREN DO NOT DECIDE THE CHANGE IN CUSTODY
In this case fathers argument is simply that (1) the parties’ son’s wishes are the only
reason for changing the parties’ custody;1 and (2) the law is that a child’s wishes, standing alone,
cannot constitute proper cause, changed circumstances, or the reason for changing custody.
The Court of Appeals indicated that it is up to the local Family law Court to decide how much weight to give a childs stated preferences.
Did you know that Parents who have joint legal custody of a child must agree upon important decisions that
affect the child’s welfare. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 295-296; 750
NW2d 597 (2008).
One of those important decisions is the child’s placement in a particular
school. I “If [the parents] are unable to agree, the trial court must resolve the dispute
according to [the child’s] best interest.” The parties here could not agree which school
The child would attend, so the trial court was not merely permitted to resolve that dispute, it was
required to resolve that dispute. The parties’ undisputed inability to agree on the childs high
school “could have a significant effect on the child’s life to the extent that a reevaluation of the
child's custodial situation should be undertaken,” and thus constitutes “proper cause” to revisit a
custody order. See Vodvarka, supra at 854.
Posted here by
Terry Bankert
http://www.flintfamilylaw.com
Saturday, September 27, 2008
Alcona County
ALCONA COUNTY, Harrisville, 23rd Circuit, pop. 11,719
http://www.alconacountymi.com/content/section/19/78/
106 Fifth StreetCounty CourthouseHarrisville, MI 48740-9789Phone: (989)724-9410Fax: (989)724-5684
http://www.alconacountymi.com/content/section/19/78/
106 Fifth StreetCounty CourthouseHarrisville, MI 48740-9789Phone: (989)724-9410Fax: (989)724-5684
Friday, September 26, 2008
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