Michigan Family Law Journal--March 2021

Michigan Family Law Journal--March 2021M I C H I G A N
FAMILY LAW JOURNAL A PublicAtion of the StAte bAr of MichigAn fAMily lAw Section • SAherA g. houSey, chAirPerSon
editorS in chief: AntheA e. PAPiStA & AMy M. SPilMAn
ASSiStAnt editorS: dAniel b. bAteS, JAMeS w. chrySSikoS, Shon A. cook, JoSePh l. hohler iii,
thereSA wozniAk JenkinS, MeliSSA kelleigh, JeSSicA lArSon, ryAn M. o’neil & Shelley r. SPivAck
voluMe 51 nuMber 3, MArch 2021
From the Chairperson ................................................................... 1 By Sahera G. Housey
Fight the Guilt .............................................................................. 3 By Ryan M. O’Neil
Staple v Staple .................................................................................. 5 By Henry S. Gornbein and Sandra D. Glazier
My CPS Client is Incarcerated, Now What? ............................... 9 By Brandy Thompson
Even Bootleggers Have to Pay Child Support ......................... 10 By Jason Blevins
Professor Lex ................................................................................ 14 By Harvey I. Hauer and Mark A. Snover
Preparing For Your First Mediation: A Step-By-Step Checklist For Advocates ............................................................ 16
By Sheldon J. Stark
IRS Releases Federal Income Tax Data ....................................... 20 By Joseph W. Cunningham, JD, CPA
Former Spouses, Military Service, and Medical Coverage ..... 22 By Mark E. Sullivan
Litigating Parental Alienation .................................................. 25 By Staci Giske
The First Thing We Do: Let’s Heal all the Lawyers: Reducing the Impact of Secondary Trauma in Advocacy ........ 28
By Evelyn Calogero and Elinor Jordan
Truth from Theory: Zalma’s Getting the Whole Truth ......... 36 By David C. Sarnacki
Recent Appellate Decisions ........................................................ 38 By Alicia K. Storm
Legislative Update ....................................................................... 42 By Stephanie Johnson
Ten times per year, the Michigan Family Law Journal reaches: • Over 3,000 State Bar of Michigan members directly • Various courts and law libraries • Specialized financial professionals • State and local public officials
Your ad for services or products – or your political ad – targets people you want most and need to reach.
Cost of ad per issue: $350 –full page $200-half page $175-quarter page $100-eighth page
Prepayment for 10 issues receives a 5% discount
For details contact:
Sean A. Blume c/o Blume Law Offices PLLC 12900 Hall Rd Ste 470 Sterling Heights, MI 48313-1178 Main: (855) 588-4352 Cell: (313) 247-2569 [email protected]
M I C H I G A N
FFAMILY AMILY LLAWAW JJOURNALOURNAL
Recording Secretary: Liisa Speaker
Term ending 2021 James W. Chryssikos Christopher J. Harrington Joseph L. Hohler III Michelle Letourneau-McAvoy Randall B. Pitler Donald C. Wheaton Hon. Tina M. Yost Johnson
Term ending 2022 J. Matthew Catchick, Jr. Jennifer L. Johnsen Viola King Anthea E. Papista Liisa Speaker Randall L. Velzen Kristen L. Robinson
Term ending 2023 Sean A. Blume Shon A. Cook Steven A. Heisler Shelley A. Kester Peter M. Kulas-Dominguez Amy M. Spilman Gail Towne
2020-2021 Family Law Section Officers and Council Members
2020-2021 List of Council Meetings Networking starts at 9 a.m. and the meeting commences at 9:30

Mission
Michigan provides education, information,
through meetings, seminars, its website,
public service programs, and publication
of a newsletter. Membership in the Section
is open to all members of the State Bar of
Michigan.

* If you wish to attend a council meeting, please contact Justin Mann at jmann@ speakerlaw.com to register in advance.
Saturday, April 10, 2021 Virtual
Saturday, May 1, 2021 Virtual or in-person TBD
Saturday, June 5, 2021 Virtual or in-person TBD
List of Advertisers
Letters to the Editor
The Michigan Family Law Journal welcomes letters to the Editor. Typed letters are preferred; all may be edited. Each letter must include name, home address and daytime phone number. Please submit your letters, in Word format, to the Chair of the Family Law Section, Sahera G. Housey, c/o State Bar of Michigan, Michael Franck Building, 306 Townsend Street, Lansing, MI 48933, [email protected]
Family Law Section—Mid-Summer Conference ...............................................................2 ICLE—Premium Partnership ............................................................................................4 Scott Bassett, Esq.—Michigan Family Law Appeals ...........................................................5 Kristen L. Robinson, Mellin Robinson PC—Family Law Mediation .................................6 Soberlink ...........................................................................................................................8 Kristen Roy, CPF, CDFA ................................................................................................10 The QDRO Company LLC ............................................................................................11 Divorce Axis ....................................................................................................................17 QDROExpress LLC, Attorney Robert Treat ....................................................................21 Pitler Family Law and Mediation, PC .............................................................................30 Great Lakes Honor Roll ..................................................................................................34 Mid-Summer Conference Sponsors .................................................................................37 Family Law Political Action Committee ..........................................................................41
FAMILY LAW SECTION “LISTSERV” (E-mail Discussion Group)
The Family Law Section sponsors a “listserv,” which is “geek-speak” for an e-mail discussion group. To be eligible to join, you must be a member of the Family Law Section or be a Michigan judge. If you are eligible and wish to participate (it is a wonderful opportunity to share ideas and solve problems, not to mention communicating with many fine colleagues), you may initiate your subscription to the Familylaw listserv by going to http://groups.michbar.org/ and click on FamilyLaw. Once there, fill out the form under “Subscribing to FamilyLaw” and follow the instructions. If you have questions, contact Elizabeth A. Sadowski at [email protected], or call her at (248) 652-4000.
The Michigan Family Law Journal Endeavors to Establish and Maintain Excellence in Our Service to the Family Law Bench and Bar and Those Persons They Serve.
Assistant Editors: Daniel B. Bates • James W. Chryssikos • Shon Cook
Joseph L. Hohler III • Theresa Wozniak Jenkins Melissa Kelleigh • Jessica Larson
Ryan M. O’ Neil • Shelley R. Spivack
Co-Editors of Outside Articles: James W. Chryssikos • Amy M. Spilman
Hot Topics Editor: Ryan M. O’Neil
Co-Editors in Chief: Anthea E. Papista • Amy M. Spilman
iv Michigan Family Law Journal March 2021
On behalf of the Family Law Council, we are encouraging our membership and readers to consider submitting an article to the Family Law Journal.
Article Contact Person: The primary contact person at the State Bar for Journal articles is Sue Oudsema (517) 367-6423 and [email protected]. Article submissions should be e-mailed to Sue in Word format. Please carbon copy Anthea Papista ([email protected]) and Amy Spilman (spilman@ eisenbergspilman.com) and write “Article for the Family Law Journal” in the subject line when you submit your article.
Article Due Date is One Month in Advance: Please submit your articles to Sue Oudsema at her email address above no later than the 15th day of the month preceding the next publication. In other words, if you wish to have your article considered for publication in February, please have your article to us by January 15th. There are ten (10) published Family Law Journal issues each year. June/July and August/September are combined issues.
Formatting and Links: Consistent with the State Bar Journal’s practice, our formatting resource guide is The Chicago Manual of Style (see www.chicagomanualofstyle.org). Please use endnotes for citations. Feel free to include links in your endnotes, which will permit the reader to click and then be directed to the original source or reference.
Peer Reviewed: Authors are expected to have engaged another attorney to carefully review, critique, and edit articles before sending to the Family Law Journal for consideration.
Bio & a Picture Please: All authors are requested to submit a short biography not to exceed 100 words (similar to the Bar Journal) and photo to Sue in conjunction with your article.
Please Notify: If you are a first time author and wish to submit an article for possible publication, please advise Anthea Papista or Amy Spilman. Please include a detailed description of your topic.
Editorial Board Discretion: The Editorial Board reserves the right to accept, reject, and edit all submitted articles and Letters to the Editor. We shall endeavor to communicate any necessary substantive changes to the author in advance of publication.
Very Truly Yours,
Anthea E. Papista and Amy M. Spilman Journal Committee Co-Chairs
To All Prospective Family Law Journal Authors:
From the Chairperson
Beware Of Court Rules
MCR 3.229 Filing Confidential Materials has been in effect since January 1, 2020. However, many attorneys are not aware of their duties and responsibilities under this court rule. Attorneys should become familiar with the court (public) file and the nonpublic file.
(A) If a party or interested party files any of the following items with the court, the party shall identify the document as a confidential document and the items shall be served on the other parties in the case and maintained in a nonpublic file in accordance with subrule (B):
(1) verified statements and disclosure forms under MCR 3.206(B);
(2) child protective services reports;
(3) psychological evaluations;
(4) custody evaluations;
(5) medical, mental health, and academic records of a minor;
(6) any part of a confidential file under MCR 3.903(A)(3);
(7) any item designated as confidential or nonpublic by statute or court rule; and
(8) any other document which, in the court’s discretion, should not be part of the public record.
(B) Any item filed and identified under subrule (A) is nonpublic and must be maintained separately from the legal file. The filer waives any claim of confidentiality to any item filed under subrule (A) that is not identified by the filer as confidential. The nonpublic file must be made available for any appellate review.
I have noticed that because of this court rule, some attor- neys have submitted Verified Statements with missing infor- mation, i.e., only the last four digits of a parent’s social security number or no date of birth. This information-full social secu- rity numbers and dates of birth-must be included and will be placed in the confidential, non-public file.
Additionally, you should be mindful of attachments that are included as part of an attorney’s motion. For example, sub- mitted CPS reports, psychological reports or the minor child’s report cards, must be identified as a “confidential document;” otherwise, the attorney may be in violation of this court rule.
Take care,
Crystal Mountain Resort 12500 Crystal Mountain Dr, Thompsonville, MI 49683
Photos courtesy Crystal Mountain Resort
The seminar will feature presentations by top-notch family law practitioners providing state- of-the-law education and tips on family law issues. In addition, the conference provides valuable opportunities to network with your colleagues.
Mark your calendar and watch for details.
All COVID protocols (including social distancing and PPE) still recommended in late July will be followed at this event.
Michigan Family Law Journal 3March 2021
The transition to a virtual court system has presented ben- efits that not only provide greater access to litigants but also a more nimble and robust practice for attorneys. Virtual hearing rooms have, in some cases, eliminated cattle calls which allows attorneys to have more structure in their days. It also permits attorneys to appear in multiple courthouses across the state without having to drive a single mile. And for many of us, our home now serves a dual purpose of residence and office.
But for all of the advantages to working from home, there are also some downfalls. When asked about the disadvantages to working from home, employees have reported a blurred line as to when the workday ends and personal time begins.1 In this digital world, it is far too easy to stay on your computer late into the night or take those client phone calls during Jeop- ardy. Perhaps most challenging because of pandemic-related concerns has been the ability to get out of town and leave both your home and work environment altogether. Many attor- neys, even pre-pandemic, expressed hesitation at even taking a vacation knowing that it would likely be interrupted by client phone calls or a mountain of work awaiting their return.
Perhaps no other story exemplifies the struggle to “go off the grid” than a friend of mine who was on her honeymoon at Disneyland in California. As she stood with a crowd waiting to enter the Magic Kingdom, she received a phone call from a court back in Michigan indicating that she was needed to appear on the record for an emergency/unsched- uled hearing in which she was the guardian ad-litem. The explanation that she was on her honeymoon along with the melody from it’s a Small World were not enough to get her excused from the hearing. Eventually, the accommodating cast members took her backstage and set her up in her own conference room so she could participate in the hearing out- side the hustle and bustle of the Happiest Place on Earth. While it is one thing to wait three hours to ride Star Wars: Rise of the Resistance, it is quite another to spend that same amount of time in a Disneyland office.
We have all told ourselves the same lie to make ourselves feel less guilty when we abandon a family vacation for an hour or two to take a phone call or respond to an email. “The client expects me to do this.” “I will get fired if I don’t answer this call.” “Lawyers don’t have days off.” The real- ity is that lawyers, perhaps more than any other professional group, need off days.
Skipping vacations can “be a set-up for anxiety, depres- sion, alcoholism, and burnout,” lawyer and licensed alcohol and drug counselor Patrick R. Krill told Bloomberg Law. Krill is the lead author of the Hazelden study.
Lawyers have more alcohol disorders and mental health distress than other professionals, according to Hazelden. The Hazelden study of 15,000 attorneys found that 28 percent of practicing attorneys struggle with depression, 21 percent are problem drinkers, and 19 percent have anxiety. Hazelden is an addiction treatment provider that runs a specialized program for legal professionals.2
Time away from the office, whether it is a weekend up north or an excursion halfway around the world, is something that lawyers should build into their schedules. When we take time away from the office, we come back refreshed, energized, and sometimes with a new perspective. All of these attributes make us better lawyers, and by extension, able to provide bet- ter services to our clients.
As the pandemic begins to recede in the coming months, examine when you last took time away from your home and office (which very well may be one and the same). Look at when you have some upcoming downtime and arrange to have another attorney cover your cases while you are away. And perhaps most importantly, make it clear to your clients that you will have limited ability to communicate with them while you are away. Boundaries are healthy. You should not feel guilty about spending a week with your family instead of be- ing glued to your computer.
About the Author
Ryan M. O’Neil is a 2005 graduate of the University of Michigan where he earned a B.A. in English and American History. Mr. O’Neil earned his Juris Doctor from the Western Michigan University Cooley Law School and was admitted to the State Bar of Michigan in 2008. He is also licensed to practice law in the United States District Court - Eastern District of Michigan. Mr. O’Neil currently serves as a Friend of the Court Referee in Oakland County.
Endnotes
WHAT’S HOT?
Fight the Guilt
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Randall J. Chioini, Chioini Group PLLC, Mount Clemens
Michigan Family Law Journal 5March 2021
Staple v Staple
Michigan Court of Appeals June 27, 2000, 241 Mich.App. 562 (hereinafter “Staple II”)
THE CASE OF THE ISSUE
The Issue
Does Staple II require certain language beyond a barring of spousal support where there is to be no spousal support payable to either party and spousal support is forever barred?
Some practitioners are including what is commonly re- ferred to as “Staple” language to reflect that the parties intend to forgo their statutory right to petition for modification of a judgment that awards no alimony to either of the parties and bars future entitlement. Given the frequency with which such language appears, a review of the issue of intent and the deci- sion espoused in Staple II was undertaken.
Background
Under MCL 552.28 either party to a divorce judgment has the right to petition the court to amend the alimony pro- visions of the judgment. However, Staple II clarified that
[l]ike many other statutory and constitutional rights, parties may waive their rights under MCL §552.28, MSA 25.10. If the parties to a divorce agree to waive the right to petition for modification of alimony
and agree that the alimony provision is binding and nonmodifiable, and this agreement is contained in the judgment of divorc[e].1
Statement of Facts
The parties were married for 21 years when a divorce was filed by Robert Staple. Robert was 43 and Marcella was 40. In late March 1990, Marcella Staple was severely injured in an automobile accident that left her a permanent paraplegic. She also suffered from thyroid cancer in the past and had been in- formed seven years earlier that this cancer could return within eight years. The parties negotiated an agreement where the alimony award was limited to a six-year duration.
The trial court, relying on Bonfiglio v. Ping,2 ruled that because the alimony involved in Staple was otherwise “mathe- matically determinable,” with the exception of certain contin- gencies, the alimony provision was non-modifiable alimony in gross and, therefore, Marcella Staple was not entitled to alimony beyond the six-year period specified in the consent judgment of divorce.
The Court of Appeals
The Court of Appeals analyzed various cases that took two different approaches; one was a “bright line” approach while the second looked to intent. The intent approach “rest[ed] on a policy perspective that parties to a divorce should be able to contract regarding the settlement of their cases.”3 Those that espoused a “bright line” approach reflected that
whatever the merits of such policy considerations, we are of the view that they do not justify departing from the statutory language of MCL §552.28; MSA 25.106 providing that alimony in the form of an allowance for a party is subject to modification by the circuit court.4
The appellate court also looked to the language of MCL §552.28 and concluded that unlike other statutory provisions (such as those contained in the Worker’s Disability Compen-
By Henry S. Gornbein and Sandra D. Glazier
6 Michigan Family Law Journal March 2021
sation Act, the Michigan Employment Security Act and the Teacher Tenure Act), MCL §552.28 did not contain terms that would expressly nullify any attempt to waive rights pro- vided for in that particular statute.
Importantly, the appellate court recognized that “when parties waive claims to alimony altogether, MCL §552.28 does not provide an escape from that waiver.”5 Therefore, if a consent judgment bars alimony, neither party has the right to seek modification of that provision under the guise of MCL §552.28, and, taking that analysis to the next level,
[i]f the parties agree in their settlement that neither party will pay alimony to the other, and a judgment is entered pursuant to the terms of that settlement, then neither party has the right to petition the court under MCL § 552.28; MSA 25.106 to modify that agreement by adding an alimony provision where none existed before. If divorce litigants are permanently bound to an agreement to waive alimony altogether, then they should also be bound to an agreement to waive future modifications of the agreed-upon alimony arrangement.6
Ruling
Ultimately, the appellate court held that
[t]he statutory right to seek modification of alimony may be waived by the parties where they specifically forgo their statutory right to petition the court for modification and agree that the alimony provision is final, binding, and nonmodifiable.7
The appellate court went on to provide guidance to prac- titioners (and parties) by indicating that any instrument that includes an…