I DON'T LIKE MY FRIEND OF THE COURT RECOMMENDATION - NOW WHAT?

 OBJECT! AND DO IT QUICKLY -- FOR MOST ISSUES, YOU HAVE ONLY 21 DAYS TO FILE AND SERVE YOUR OBJECTION. 

            A party may obtain a de novo review on any matter that has been the subject of     a referee hearing and that resulted in a statement of findings and a recommended order by filing an appropriate objection.[1] Although the trial court may conduct the hearing by review of the record of proceedings with the referee, the trial court must allow  the parties to present live evidence as to matters objected to.[2]

            The trial court may, in its discretion, prohibit a party from presenting live on findings of fact to which     the party did not object and may find the referee’s findings conclusive as to matters to which neither party objected,[3] but the trial court must make independent conclusions as to matters to which a party did object.[4] So, be specific and detailed in your objection - whatever you do not object to is probably coming in.

            Demand a de novo hearing- a hearing "anew" before your judge, without deference to the Friend of the Court. It is your right. For example, in Cochrane v Brown,[5] the Court of Appeals reversed a lower court for limiting its review of a Friend of the Court recommendation following    a party’s objection to the referee’s findings of fact and conclusions of law, the file and transcripts.  The defendant-father objected to a referee’s recommendation denying his motion to modify custody.  The lower court conducted the hearing but did not allow him to present evidence because the lower court’s administrative policy permitted review of the record alone.[6] But, a hearing as contemplated in MCR 3.215 “based solely on review of the referee’s hearing record is permissible only with the consent of all parties,” and        the lower court “cannot simply adopt the referee’s recommendation without conducting its hearing de novo.”[7] The word “must” is a directive to allow live evidence.[8]

[1]               MCL 552.507(F); MCR 3.215(e)(4).

[2]               MCR 3.215(F)(1); see also Cochrane v Brown

[3]               MCR 3.215(F)(1)(a)-(c).

[4]               Drumm v Brodbeck, 276 Mich App 460; 740 NW2d 751 (2007).

[5]               234 Mich App 129; 592 NW2d 123 (1999).

[6]               Id.

[7]               Id.

[8]               Mann v Mann, 190 Mich App 526, 529; 476 NW2d 439 (1991) (citing Crampton v Crampton, 178 Mich App 362; 443 NW2d 419 (1989)).

WILL MY DIVORCE USE THE FRIEND OF THE COURT? AND WHAT IS IT, ANYWAY?

            Divorces in Michigan fall into two categories: those involving the Friend of the Court and those not. The Friend of the Court is  an agency-like body that assists the Family Division of the Circuit Court with child custody and parenting time, child support and (depending on the county) spousal support. Each county has the authority to establish how its Friend of the Court operates, but, in general, in each county the Friend of the Court investigates, recommends orders and enforces orders for child custody, parenting time and support.

Both categories have these in common:

*To obtain a divorce in Michigan, one of the parties must have resided in Michigan for at least 180 days, and the case is filed in the county in which the non-filing party resides for divorce for at least 10 days prior to filing. These residency requirements are jurisdictional, meaning neither party can waive them (for example, if you only resided in county A for 9 days, you could not file in county A).

*Michigan is a no-fault divorce state. The complaint for divorce need only allege that there has been a breakdown in the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood of reconciliation. This does not mean, however, that Michigan does not consider fault. Fault is relevant in some instances in child custody, spousal support and property distribution.

*There is a filing fee of $150 for a divorce without children and a $230 for a divorce with children, but the parties may petition the court to waive these fees based on poverty.

* There is a waiting period of 60 days for a divorce without children and a waiting period of 6 months for a divorce with children. However, if there is unusual hardship or compelling necessity, the court may waive the waiting period.

*“Equitable distribution” governs property division. The court starts with the presumption that the parties should each receive a “roughly congruent” share of the marital property. Marital property is any property (including debt) acquired during the marriage, from any source, and not property acquired before the marriage and passive increases in the value of that property. However, special rules apply to gifts (whether they were for the marriage or for the individual), inheritances, and commingled property. There is no “bright-line” rule to divide property; instead, the court considers several factors, including the length of the marriage, the parties’ needs, age, the value of the property, and so forth. Fault is, in general, relevant if the fault that caused the breakdown of the marriage is related to marital property (e.g., your spouse had a gambling habit and, as a result, acquired substantial debt by refinancing your marital home). The court may also invade each party’s separate property if the other party contributed to the increase in value of that property or if the other party “needs” a share of the property, using the same multi-factored analysis.  For short-term marriages (think, 3 years or less, generally), each party usually retains his or her property and debt, except large items (e.g., a joint credit card or a house) are divided equitably.

Property negotiation consumes most of the waiting period.

 

In addition, for Friend of the Court cases or cases involving children or support:

*Alimony in Michigan is called “spousal support.” The court may award temporary spousal support during the action and rehabilitative or permanent support in the final judgment if the judge determines that the awarded party “needs” support and the other party is able to pay it

 

 *“Custody” has two components, “legal custody” and “physical custody.” Usually, the parties share legal custody. This means the power to make the child’s important life decisions, such as educational and medical decisions. Physical custody is the actual possession and time with the child. (Because the term “physical custody” suggests the other parent has no time with the child, courts increasingly call physical custody “allocation of parenting time.”) The court must presume each child deserves an equal relationship with both parents, and the court must inform the parties of the option for joint custody. The court must also try to maintain the child’s established custodial environment. An established custodial environment is a physical and a psychological environment marked by security and stability, where the child naturally looks for comfort, guidance and necessities. Any custody decision must be in the child’s best interests, considering the love, bond, home and school environment, capacity and disposition of the parties to provide for the child, religion, if any, history of care-giving, willingness to foster and encourage a relationship with the other parent, domestic violence, and any other fact relevant to the child.

 

*Child support is based on the Michigan Child Support Formula. The MCSF calculates support using each parent’s income and overnights with the child, with credit given for actual childcare and healthcare costs. The Friend of the Court utilizes a computer program with the MCSF to calculate each party’s support obligation, if any. The paying parent may ask to deviate from the formula amount if it is “unjust or inappropriate.”

*Parties may opt out of the Friend of the Court system, but should only after a thorough consultation with an attorney because the Friend of the Court offers order enforcement, monitoring, counseling and complaint services for a nominal fee, and often for free.

Whether or not a Friend of the Court case, Michigan courts encourage settlements!      The court will order (or strongly encourage) the parties to attend mediation, conciliation, arbitration, negotiation, and any other appropriate alternate dispute resolution mechanism before a trial. Divorce trials are rare, though necessary to protect a parent’s constitutional rights to his child and his property, and these alternate dispute resolution mechanisms are sometimes free, always creative and allow clients and attorneys to fashion a divorce judgment tailored to the family’s needs.

To learn more about Michigan family law, to locate courthouses and to find court resources, visit the State Court Administrative Office’s website -- www.courts.michigan.gov.

WHAT SERVICES DOES THE FRIEND OF THE COURT PROVIDE?

If you are considering opting out of Friend of the Court services, think again -- you will be walking away from many helpful, and often free, services: 

a. Accounting Services

Friends of the court must collect support and disburse it within 48 hours. Friend of the court accounting services include:

            1) friend of the court accounting for payments received and sent,

            2) adjustments of support for parenting time or other credits,

            3) annual statements of accounts, if requested.

b. Support Enforcement Services

The friend of the court must begin to enforce support when one month of support is overdue. For friend of the court cases, child-support enforcement services include:

• paying support out of tax refunds.

• asking the court to order the nonpaying party to come to court to explain the failure to pay.

• having unpaid support paid out of property the payer owns.

• reporting support arrearage to a consumer reporting agency or requesting that the payer’s license(s) be suspended.

• collecting support by an income withholding order.

c. Medical Support Enforcement Services

The friend of the court is required to recommend how the parents divide health-care expenses and to take action to collect the amounts that a parent fails or refuses to pay. When a parent is required to insure the children, the friend of the court is authorized to instruct an employer to enroll the children in an insurance plan when the parent fails or refuses to do so.

d. Support Review and Modification Services

Once every three years, persons with friend of the court cases may request the friend of the court to review the support amount. After completing the review, the friend of the court must file a motion to raise or lower support, or inform the parties that it recommends no change. It must also review support when changed circumstances lead it to believe that support should be modified.

e. Custody and Parenting-Time Investigation Services

For disputes about custody or parenting time in friend of the court cases, the friend of the court sometimes must investigate and provide reports to the parties and the court.

f. Mediation Services

Friend of the court offices must provide mediation services to help parties with friend of the court cases settle custody and parenting-time disputes.

g. Custody and Parenting-Time Enforcement Services

For friend of the court cases, the friend of the court must enforce custody and parenting time when a party complains that it is violated. Child-custody and parenting-time enforcement services include:

• asking the court to order the noncooperating party to come to court to explain the failure to obey the parenting-time order.

• suspending the licenses of individuals who deny parenting time.

• awarding makeup parenting time.

• joint meetings to resolve complaints.

CAN I OBJECT TO THE FRIEND OF THE COURT REFEREE'S RECOMMENDATIONS FOR MY CASE?

YES, but you must object within 21 days of the date of service of the recommendation.

“A party may obtain a de novo review on any matter that has been the subject of a referee hearing and that resulted in a statement of findings and a recommended order by filing an appropriate objection.[1] Although the trial court may conduct the hearing by review of the record of proceedings with the referee, the trial court must allow the parties to present live evidence as to matters objected to.[2] The trial court may, in its discretion, prohibit a party from presenting live on findings of fact to which the party did not object and may find the referee’s findings conclusive as to matters to which neither party objected,[3] but the trial court must make independent conclusions as to matters to which a party did object.[4]


For example, in Cochrane v Brown,[5] the Court of Appeals reversed a lower court for limiting its review of a Friend of the Court recommendation following a party’s objection to the referee’s findings of fact and conclusions of law, the file and transcripts. The defendant-father objected to a referee’s recommendation denying his motion to modify custody. The lower court conducted the hearing but did not allow him to present evidence because the lower court’s administrative policy permitted review of the record alone.[6] But, a hearing as contemplated in MCR 3.215 “based solely on review of the referee’s hearing record is permissible only with the consent of all parties,” and the lower court “cannot simply adopt the referee’s recommendation without conducting its hearing de novo.”[7] The word “must” is a directive to allow live evidence.[8] ”

         

In many counties, you must also provide the transcripts for the referee's hearing. In all counties, you must file your objection citing specific errors of law and/or fact and file and serve that objection, along with a notice of hearing, on all parties (or their attorneys) of record.

You can learn more about Michigan's Friend of the Court system here: http://courts.mi.gov/administration/scao/officesprograms/foc/Pages/default.aspx

[1]               MCL 552.507(F); MCR 3.215(e)(4).

[2]               MCR 3.215(F)(1); see also Cochrane v Brown

[3]               MCR 3.215(F)(1)(a)-(c).

[4]               Drumm v Brodbeck, 276 Mich App 460; 740 NW2d 751 (2007).

[5]               234 Mich App 129; 592 NW2d 123 (1999).

[6]               Id.

[7]               Id.

[8]               Mann v Mann, 190 Mich App 526, 529; 476 NW2d 439 (1991) (citing Crampton v Crampton, 178 Mich App 362; 443 NW2d 419 (1989)).