Termination of parental rights does not automatically end an obligation of support.

The Legislature has statutorily specifically defined parental rights and parental obligations such that issues involving parental rights are distinct from parental obligations.  Nothing in the statutory structure indicates that the loss of parental rights automatically results in the loss of parental obligations. Rather, a parental support obligation continues unless a court of competent jurisdiction, in the exercise of its discretion, modifies or terminates the obligation. In re Beck, ___ Mich ___ (#140842, 12/20/2010)

The premise of Open & Obvious requires that the condition be open and obvious upon casual inspection.

In Watts v Michigan Multi-King, __ Mich App __ (#293185, 12/14/2010) the court of appeals rejected defendant’s assertion that a wet floor in a restaurant is a common everyday hazard of which customers are expected to be aware, making it always open and obvious regardless of its visibility.  In Watts the plaintiff introduced evidence that this was not the case.  Although the parties essentially agreed that the floor had been mopped shortly before plaintiff’s fall and the report from the store indicated that there were “wet floor” signs present, plaintiff testified that there were no signs present. Plaintiff also testified that both before and after her fall, the tile did not look shiny or wet and nothing else about its appearance appeared out of the ordinary.  Summary disposition was thereby improperly granted.  The premise of open and obvious requires that the hazard would be “obvious” upon “casual inspection.” O’Donnell v Garasic, 259 Mich App 569 (2003).

A landowner has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). However, a premises possessor is not generally required to protect an invitee from open and obvious dangers, unless special aspects of a condition make even an open and obvious risk unreasonably dangerous, in which case the possessor must take reasonable steps to protect invitees from harm. Id. The question of whether a condition is “open and obvious” depends on whether “it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.” O’Donnell, supra. The test is objective; “the inquiry is whether a reasonable person in the plaintiff's position” would have done so. Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008). When deciding a summary disposition motion based on the open and obvious danger doctrine, “it is important for courts . . . to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.” Lugo, 464 Mich at 523-524. If genuine issues of material fact exist regarding the condition of the premises and whether the hazard was open and obvious, summary disposition is inappropriate. See Bragan v Symanzik, 263 Mich App 324 (2004).

Motion to change custody versus a motion to modify parenting time.

In Shade v Wright, __ Mich App __ (#296318, 12/2/2010) the Court of Appeals held that the change in circumstances or proper cause required to modify a court order differs depending on whether the decision is one of custody or parenting time.  With regards to custody, if there is the required change of circumstances or proper cause, custody decisions require findings under all of the best interest factors under the Child Custody Act, MCL 722.23.   If it is a motion to modify parenting time, although the statutory best interest factors and the factors listed in the parenting time statute, MCL 722.27a(6), are both relevant, parenting time decisions require only findings on the contested issues from the two statutes. 

A.    The change in circumstances or proper cause requirement.

The term “‘[c]hild-custody determination’ means a judgment, decree, or other court order Providing for legal custody, physical custody, or parenting time with respect to a child, and includes a permanent, temporary, initial, and modification order. . . .” MCL 722.1102(c).  Under MCL 722.27(1)(c), a trial court may “[m]odify or amend its previous judgments or orders for proper cause shown or because of change of circumstances . . . .” A modification of such a judgment or order is only permissible when it is in the minor child’s best interests. MCL 722.27(1)(c).

B.  The burden of proof.

If a modification would change the established custodial environment of a child and would thereby be a change in custody, the moving party must show by clear and convincing evidence that it is in the child’s best interest. Pierron v Pierron, 486 Mich 81, 92 (2010); MCL 722.27(1)(c). If, however, the proposed change does not change the custodial environment, however, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interests. Pierron, 486 Mich at 93. 

C. Custody.

In Vodvarka v Grasmeyer, 259 Mich App 499 (2003) the Court of Appeals articulated the proper cause and change of circumstances sufficient to warrant a change of custody. Proper cause means one or more appropriate grounds that have or 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. 

With respect to child custody disputes, “[t]he goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances.” Corporan v Henton, 282 Mich App 599, 603 (2009). “Providing a stable environment for children that is free of unwarranted custody changes . . . is a paramount purpose of the Child Custody Act . . . .” Vodvarka, 259 Mich App at 511. Therefore, in the context of a child custody dispute, the purpose of the proper cause or change of circumstances requirement is “to ‘erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders.’” Id. at 509, quoting Heid v AAASulewski (After Remand), 209 Mich App 587, 593-594 (1995).

To establish “proper cause” necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Id. at 512.]  In order to establish a “change of circumstances,” a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed. Again, not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and wellbeing. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. . . [Id at 513-514].

D.  Parenting Time.

Nothing in the Vodvarka opinion requires that the standards used to determine the existence of proper cause and change of circumstances for custody determinations applies to determinations regarding parenting time, absent a conclusion that a change in parenting time will result in a change in an established custodial environment. Id. at 509.  The proper cause and change of circumstances definitions as articulated in Vodvarka are guided by the best interest factors in MCL 722.23(a)-(l), and do not take into account the parenting time factors in MCL 722.27a(6)(a)-(i). 

MCL 722.27a provides, in relevant part: (6) The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted: (a) The existence of any special circumstances or needs of the child. (b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing. (c) The reasonable likelihood of abuse or neglect of the child during parenting time.  (d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time. (e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time. (f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.  (g) Whether a parent has frequently failed to exercise reasonable parenting time.  (h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent. (i) Any other relevant factors.

A more expansive definition of proper cause or change of circumstances is appropriate for determinations regarding parenting time when a modification in parenting time does not alter the established custodial environment.  The Vodvarka concerns do not exist when a modification of parenting time does not alter the established custodial environment because determinations regarding child custody and parenting time serve different purposes. Whereas the primary concern with child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child’s parents. See MCL 722.27a. To that end: [p]arenting time shall be granted in accordance with the best interests of the child and it is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents, in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent. [MCL 722.27a(1).]

Thus, the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should consider in making determinations regarding modification of parenting time.  If the change is a parenting time decision, the normal life changes that occur with a minor child may be sufficient to establish the required change in circumstances or proper cause.

The trial court's authority to issue a protective order to ensure compliance with HIPAA.

In Szpak v Inyang, __ Mich App __ (#292625, 11/23/2010) the Court of Appeals held that in conjunction with a defendant’s request to ex-parte interview plaintiff’s treating physicians under HIPAA, it is an abuse of discretion for the trial court to require that plaintiff’s counsel receive notice of, and an opportunity to attend, ex parte interviews by defense counsel with plaintiff's treating physicians.  The trial court's authority to issue a protective order to ensure compliance with HIPAA is controlled by MCR 2.302(C).  The imposition of conditions unrelated to compliance with HIPAA, or any related privacy concerns is not permissible in the absence of evidence to support a reasonable concern for intimidation, harassment, and the like.

In determining spousal support the trial court is to “balance the incomes and needs of the parties".

In Myland v Myland, ___ Mich App ___ (#292868, 11/23/2010) the Court of Appeals reversed an order of spousal support (alimony) based on the trial court’s use of an arbitrary formula to calculate an award of spousal support.  In determining spousal support the trial court is to “balance the incomes and needs of the parties in a way that will not impoverish either party” based on what is “just and reasonable under the circumstances of the case.” Moore v Moore, 242 Mich App 652, 654 (2000).

Among the factors to be considered are: (1) the past relations and conduct of the parties, (2) the length of the marriage, (3) the abilities of the parties to work, (4) the source and amount of property awarded to the parties, (5) the parties’ ages, (6) the abilities of the parties to pay alimony, (7) the present situation of the parties, (8) the needs of the parties, (9) the parties’ health, (10) the prior standard of living of the parties and whether either is responsible for the support of others, (11) contributions of the parties to the joint estate, (12) a party’s fault in causing the divorce, (13) the effect of cohabitation on a party’s financial status, and (14) general principles of equity [Olson v Olson, 256 Mich App 619, 631 (2003). MCL 552.23; Korth v Korth, 256 Mich App 286, 288 (2003).

Obligation of defense attorney to request an expert witness.

People v Owens, Unpub, (288074, 11/2/2010)

Defendant was charged with CSC.  Prosecutor argued victim credibility based on the ‘forensic interview’ of the victim.  A reasonable trial counsel presented with these facts would have investigated the limitations on the forensic interview process and would have called an expert to testify about those limits as well as about the common behaviors of adults who sexually abuse children.  At the Ginther hearing, defense counsel stated that he did not do any research on sexual abusers' behavior patterns or consult an expert because he believed that "it was obvious that this [offense] wouldn't happen . . . under these circumstances." The court concluded that had defense counsel engaged in proper investigation, he would have learned that adults who sexually abuse children often engage in specific acts to "groom" their victims. Since there was no evidence that defendant ever engaged in grooming behavior with the alleged victim or any other child, defense counsel could have used an expert's testimony "to provide context for the allegations and to highlight the improbable nature" of the victim's description of events. O, the proposed defense expert, testified at the Ginther hearing that she could have offered expert testimony that external factors in the case might have impacted the victim's description of the incident. O explained that several factors such as the victim's age, questioning by her family and others before the forensic interview, and the victim's family's criticism of defendant during the ride home about his treatment of the victim's brother (who was dating defendant's daughter) could have tainted the victim's memory of the events. O also could have offered testimony that the forensic interview was not dispositive of whether the victim's account of the incident was tainted by interaction with her family. For that reason, defendant’s trial counsel’s decision not to investigate and call an expert on this area fell below an objective standard of reasonableness under prevailing professional norms. Further, because this case involved a close credibility contest, we cannot conclude that this error was harmless.  See also People v Yost, 278 Mich App at 387.

Obligation of the military spouse re retirement pay.

In Megee v Carmine, ___ Mich App ___ (#292207, 11/16/2010) the Court of Appeals held that a military spouse remains financially responsible to compensate his/her former spouse in an amount equal to the share of retirement pay ordered to be distributed to the former spouse as part of a divorce judgment’s property division, notwithstanding the military spouse making a unilateral and voluntary postjudgment election to waive the retirement pay in favor of disability benefits contrary to the terms of the divorce judgment.

Pursuant to a judgment of divorce, defendant was awarded 50 percent of plaintiff’s Navy disposable retirement pay as part of the property division, and the judgment incorporated a Qualified Domestic Relations Order (QDRO) to enforce that provision.  The QDRO acknowledged the 50-percent division of plaintiff’s disposable retirement pay, also referred to therein as his pension, and it prevented plaintiff from making another benefit election “that would otherwise reduce the monthly pension allotment without the written consent of defendant.

The trial court does not have authority to compel payment from a military disability compensation fund.  Compensation to be paid the former spouse as his or her share of the property division in lieu of the waived retirement pay can come from any source the military spouse chooses, but it must be paid to avoid contempt of court.

Tortious interference with a business expectancy.

Cedroni Associates, Inc v Tomblinson, ___ Mich App ___ (#287024, 11/16/2010)

With respect to a claim of tortious interference with a business expectancy, a plaintiff must prove (1) the existence of a valid business expectancy, (2) knowledge of the expectancy on the part of the defendant, (3) an intentional interference by the defendant inducing or causing a termination of the expectancy, and (4) resultant damage to the plaintiff. Dalley v Dykema Gossett, PLLC, 287 Mich App 296 (2010); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241 (2003). A valid business expectancy is one in which there exists a reasonable likelihood or probability that the expectancy will come to fruition; mere wishful thinking is not sufficient to support a claim. First Public Corp v Parfet, 246 Mich App 182 (2001), vacated in part on other grounds 468 Mich 101 (2003); Trepel v Pontiac Osteopathic Hosp, 135 Mich App 361 (1984).

Although the exercise of professional business judgment in making recommendations relative to government contracts and projects must be afforded some level of protection and deference, a cause of action may exist if there exists evidence suggesting that the ostensible exercise of professional business judgment is in reality a disguised or veiled attempt to intentionally and improperly interfere with the contractual or expectant business relationships of others. It is then for the trier of fact to sort through all of the conflicting evidence and assess the credibility of the parties’ claims and their witnesses.

Sentence or Jail Credit

MCL 769.11b provides that whenever a person is convicted of any crime within this state and has been in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.  The idea being to equalize the position of defendants unable to post bond with defendants financially able to post bond.

If a defendant is in another jail awaiting trial on unrelated charges, the Court of Appeals held in People v Shipp, 141 Mich App 610 (1985) that this calculation of ‘sentence or jail credit’ commences from the date upon which a hold is placed upon the defendant.

This right to ‘sentence or jail credit’, however, does not apply to defendants who are serving a jail (or prison) sentence after being sentenced in another case or to defendants who have a parole detainer/hold placed on them because of the alleged commission of a new felony while on parole.  The explanation being that the defendant is incarcerated regardless of whether (s)he would otherwise be eligible for bond before conviction on the new offense. Because the defendant is incarcerated regardless of whether (s)he is able to furnish bond for the new offense, the jail credit statute, supra, does not apply. People v Idziak, 484 Mich 549, 562 (2009).

Child support re-payment based on the payer’s ability to pay and the best interests of the child.

In December 2009, the Legislature amended MCL 552.605e to permit courts to establish a payment plan for a payer in arrears that is based on both the payer’s ability to pay and the best interests of the child,  and MCL 552.605e no longer precludes payers who have been prosecuted for felony nonsupport from filing an arrearage payment plan.  The Legislature also modified the procedure to be used to discharge amounts assessed as surcharges. The following are excerpts from the SCAO Memorandum to Family Court Judges and Referees. 

The payment plan must require payers to pay a reasonable portion of the amount of the arrearage over a reasonable time period. Under MCL 552.603(d), a party or the friend of the court (FOC) may file a motion (FOC 109) to request that the court establish a payment plan that provides discharge of previously assessed surcharges and allows future surcharges to be waived. The payment plan may address payee-owed arrears, state owed arrears, or both payee- and state-owed arrears.  If the court determines by a preponderance of the evidence that the payment plan is in the best interest of the parties and the children, the court must approve the proposed payment plan.

A. Arrearages Owed to a Payee

If the court determines that the payment plan is in the best interest of the parties and the children, and that the arrearages are owed only to the payee, the court must further determine that both of the following conditions apply before the court grants the motion for a payment plan:  1. The payee has consented to entry of the order under circumstances that satisfy the court that the payee is not acting under fear, coercion, or duress; and 2. The payer establishes that the arrearage did not arise from conduct that the payer engaged in exclusively for the purpose of avoiding a support obligation.

B. Arrearages Owed to the State

When the arrearages are owed solely to the state, the court must determine that all of the following conditions apply before the court grants the motion for a repayment plan:  1. The arrearage did not arise from conduct that the payer engaged in exclusively for the purp ose of avoiding payment of a support obligation; 2. In the absence of a court-approved payment plan, the payer has no present ability, and will not have an ability in the foreseeable future, to pay the arrearage; 3. The payment plan will require the payer to pay a reasonable portion of the arrearage over a reasonable period of time in accordance with the payer’s current ability to pay; and 4. The Office of Child Support or its designee has been served with a copy of the motion at least 56 days before the hearing.

B. Additional Requirements

The court order that approves a payment plan may also contain other conditions that a payer must meet, including, but not limited to:

1. Participation in a parenting program;

2. Drug and alcohol counseling;

3. Anger management classes or participation in a batterer intervention program;

4. Participation in a work program;

5. Counseling; or

6. Continued compliance with a current support order.

The court may impose these additional conditions at its discretion. If the court does order additional conditions, the FOC must monitor the payer’s compliance.

IV. Termination of the Arrearage Payment Plan

At any time, any interested party may move to terminate an arrearage payment plan and reinstate the arrearage amount for good cause. Typically, a termination motion will be filed by an actual party to the case, and not the court, the FOC, or a state agency. “Good cause” for termination includes, but is not limited to:

1. The payee has become a recipient of public assistance.

2. The payer has received property in an amount that is sufficient to pay a substantial portion of the amount discharged. Examples include:

a. Lottery proceeds or other winnings;

b. A settlement under an insurance policy;

c. A judgment in a civil action; or

d. An inheritance.

V. Fulfilling the Requirements of an Arrearage Payment Plan

Upon completing the repayment plan, the payer must provide written notice to all “interested parties” and request that the court conduct a hearing to consider the discharge of any remaining arrearage. After notice and hearing, if the court finds that the payer has fully complied with the payment plan, the court shall enter an order that discharges any remaining arrearage. If the court finds that the payer has only substantially complied with the payment plan, the court may enter an order that discharges all or a portion of the remaining arrearage, depending on the circumstances.

Until the payer has fully complied with the payment plan, all mandatory enforcement remedies, such as credit reporting and tax refund offset, shall continue on any arrearage amounts that are subject to the payment plan. MCL 552.605e allows discretionary enforcement remedies to also continue, but a referee, judge, or other person conducting an administrative review hearing on the matter must stop the discretionary enforcement if the payer is currently in compliance with the payment plan.

Misrepresentation of income to the Friend of the Court

A party’s misrepresentation of income to a Referee in connection with the setting of child support necessitating additional proceeds and a delayed implementation of an appropriate child support order justifies the imposition of attorney fees and costs against the offending party. Keinz v. Keinz, ___Mich App___ (#292781, 9/16/10).

MDOT explains the new flashing yellow left-turn signal

To help motorists understand the new flashing yellow left-turn signal, the Michigan Department of Transportation (MDOT) has posted an animated video on MDOT's YouTube channel: www.youtube.com/MichiganDOT.

For years, Michigan drivers have been making left turns from lanes where the signal light is flashing red. But soon there will be a new traffic signal that offers a safer, more efficient way for traffic to turn left at busy intersections.

The signals are being introduced nationwide and ultimately will be required at all intersections where there is a separate left-turn arrow signal. This change is the result of a national study conducted by the Federal Highway Administration, which demonstrated that the new signal helps prevent crashes, moves more traffic through an intersection, and provides more flexibility in traffic management.

The flashing yellow arrow is part of a four-arrow light. What do you do when you see the flashing yellow? It's simple: be cautious, and after yielding to oncoming traffic and pedestrians, make your left turn.

After it flashes, the flashing yellow then turns to a solid yellow left-turn arrow, which means prepare to stop.

When the light turns to a solid green arrow, turn left. Oncoming traffic must stop.

Just remember: a flashing yellow signal means turn with caution. More information, including a link to download a brochure and a demonstration of how the signal works, is available at www.michigan.gov/flashingyellowarrow.

Charge for FOC Custody or Parenting time Investigation.

Effective January 8, 2010, MCL 552.505(3) was amended to permit Friend of the Court offices to charge parties an amount for the expense of conducting a custody or parenting time investigation, when a party requests one, pursuant to standards issued by the State Court Administrative Office (SCAO). The following includes excerpts from the SCAO memorandum establishing the standards for charging a party for the FOC’s expense of conducting an investigation ordered under MCL 552.505(1)(g).

A. Background

1. When a dispute involving custody or parenting time issues exists in a domestic relations matter, the court may order the Friend of the Court (FOC) office to investigate the relevant facts and make a written report and recommendation to the parties and to the court. MCL 552.505(1)(g).

2. MCL 552.505(3) permits the FOC office to charge parties in a dispute an amount for the expense of conducting an investigation and making a report, and outlines several parameters regarding the amount that an office may charge.

            a. An office may only charge for its expenses pursuant to standards prescribed by the State Court Administrative Office (SCAO).

            b. An office cannot assess an amount to the parties unless a party requests an investigation.

            c. The amount assessed cannot exceed the office’s expense to conduct the custody or parenting time investigation and make the report and recommendation ordered under MCL 552.505(1)(g).

            d. If the court waives or suspends fees in a case due to indigence or inability to pay, the office shall not charge for its investigation. If the court orders partial waiver or suspension of fees in the case due to indigence or inability to pay, the office shall reduce the amount charged.          

            e. If the court determines that a party’s request for an investigation was frivolous, the court may order that the amount be charged only against the requesting party.

            f. Monies collected for an office’s expenses to conduct investigations must be deposited into the friend of the court fund.

3. The term “investigation” means the work and processes used to find information and to make a written report and recommendation to fulfill FOC duties under MCL 552.505(1)(g). The term “office” means the local friend of the court office that conducts an investigation.

B. Standards

1. Local Administrative Order Required

            a. To establish procedures governing charges for FOC investigation expenses, each circuit must adopt a local administrative order (LAO) pursuant to MCR 8.112(B) that conforms with SCAO model LAO 34 - Friend of the Court Investigation Expenses.

            b. An office may only charge amounts for an investigation as permitted by the LAO approved by the SCAO.

2. Investigation Requested

            a. The office may only charge an amount if a party requests an investigation.  Before the office can assess charges for its expenses, any party or a party’s attorney must expressly request an investigation. Because the court may order an investigation without either party requesting it, the office cannot infer a request based solely on a motion to change a custody or parenting time order or upon a contested dispute.

            b. The office must base its determination of a request for investigation on an express statement in a pleading or on the record, a signed document requesting an investigation filed with the office, or a finding by the court that a party requested an investigation.

3. Amounts Charged

            d. An office cannot charge the parties if the court waives or suspends fees in that case because of inability to pay or indigence. The office must reduce the amount charged on a case and to a party if the court waives or suspends any portion of a party’s fees because of inability to pay or indigence.  If the court partially waives or suspends fees in a case, unless otherwise ordered by the court the office must reduce its charges.

            e. The court may direct an office to charge reduced amounts based on a party’s limited ability to pay.

            f. Unless permitted by statute or court rule, the court may not charge or collect any other fee or amount for the office conducting an investigation.

5. Completing Investigations

Once ordered to conduct an investigation, unless a subsequent order terminates it, the office must timely complete its work and submit a report to the court and parties, regardless of whether a party pays the amount charged.

As with any concern about office operations, any party with a complaint regarding a office’s practices or procedures for charging for its investigation expenses may file a grievance pursuant to MCL 522.526.

Uniform Child and Spousal Support Orders (Revised)

MCR 3.211(D) requires that child support and spousal support orders be prepared on the Uniform Support Order (USO) approved by the Michigan Supreme Court. On September 22, 2010, the Court adopted the USO revisions that were suggested by the State Court Administrative Office (SCAO). The Court approved the new forms (dated 5/10) for immediate use, and authorized the continued use of the previous version of each form until December 31, 2010. Beginning January 1, 2011, courts should only accept support orders prepared on the latest forms (dated 5/10). 

SCAO-approved domestic relations forms are available on the Michigan Courts website at http://courts.michigan.gov/scao/courtforms/domesticrelations/drindex.htm.

Personal Protection Orders.

My $.02:

In general terms, Personal Protection Orders by statute are for cases involving domestic violence or stalking.  However, sometimes what would not necessarily appear to be included within that definition still can be the basis for a PPO because of the relevant facts and circumstances between the parties.

If an ex-parte Personal Protection Order is granted, the respondent has the right to file a Motion to terminate the PPO within 14 days after being served with (or receiving actual notice of) the PPO.  (A motion filed by the respondent after the required 14 days may require the respondent to show good cause for the late filing of the motion.)  At the hearing on the respondent’s Motion to terminate the PPO the petitioner has the burden of proof to show through legally admissible, substantive evidence that the PPO was issued correctly and remains necessary today.

If your petition for any ex parte Personal Protection Order is denied, it may be because, in fairness to both sides, both parties should be present and have the opportunity to present evidence to the judge as to whether a PPO is appropriate.  It is not necessarily that there is insufficient evidence for the Personal Protection Order, but the ex parte denial may simply be that the court is not satisfied upon review of the petition that petitioner will suffer immediate and irreparable injury, loss or damage by having to wait for a hearing whereby both parties (and witnesses) can be present. 

If you wish to present evidence at any hearing, witnesses are generally required.  Please remember that hearsay is generally inadmissible, except for admissions made by the opposing party or otherwise as allowed by the Rules of Evidence.  This includes what other people may have told you whether that other person be a police officer, lawyer, family member, friend or stranger.  Likewise, police reports, letters, medical reports and affidavits are hearsay and generally not admissible unless you can lay a proper foundation under the Rules of Evidence.

At the hearing please do not interrupt when someone else is talking.  The judge will try to give both sides a full opportunity to be heard before making any decision.  Do not argue with the other party.  You are there to convince the judge, not the other party, that your position is correct.

When you don’t follow these rules it can affect your credibility.  We know and understand that people are nervous when they appear in court, but even if you are nervous or upset, you can still be polite, civil or courteous to the other party, witnesses and the court. 

Use of Medical Marijuana

My $.02:

Medical marijuana by law and by affirmation in the Court of Appeals is allowable if prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition.  Accordingly, if a person placed on probation wishes to use medical marijuana for treatment of a serious or debilitating medical condition, my intention is to use the following guidelines:

1. Are there other reasonable alternatives to medical marijuana?  Unless the answer is clearly yes or no, defendant shall obtain, at defendant's expense, an evaluation, by a person approved by the probation department, whether medical marijuana is reasonably necessary for treatment of a serious or debilitating medical condition.

2. If medical marijuana is reasonably necessary, defendant may use marijuana prescribed by a licensed physician during the course of a bona fide physician-patient relationship for treatment of a serious or debilitating medical condition.  Defendant shall not otherwise use or possess, or be in the presence of any person using or possessing, any controlled substance or imitation thereof.  All prescriptions otherwise must be non-narcotic and prescribed by a licensed physician during the course of a bona fide physician-patient relationship.

3. Unless smoking medical marijuana is reasonably necessary to treat nausea and approved in writing by the court, the smoking of marijuana is prohibited and ingestion of medical marijuana shall be in oral tablet form.

4. Defendant shall not use or possess marijuana in the presence of any person using a controlled substance.  (This precludes the sometimes practice of people using or possessing marijuana at the so called 'marijuana clubs'.) 

5. Defendant shall not operate a motor vehicle.

A jury panel of 12 or 6?

My $.02:

Six person criminal jury trial:  The United States Supreme Court in Williams v Florida, 399 U.S. 78, 90 S Ct 1893, 26 L.Ed.2d 446 (1970) held that the constitutional guarantee of a trial by jury does not necessarily require a trial by exactly 12 persons. The State of Florida’s refusal to impanel more than the six members provided for by Florida law did not violate defendant's Sixth Amendment rights as applied to the States through the Fourteenth Amendment.   Contrarily, the ABA advocates 12 member juries in all non-petty criminal cases and in all civil cases whenever feasible.  According to the ABA Principles for Juries and Jury Trials, larger juries deliberate longer, and have better recall of trial testimony, and are more likely to produce accurate results. 

Is there some intrinsic value in a decision making body of twelve versus six?  As long as arbitrary exclusions of a particular class from the jury rolls are forbidden, the concern that the cross-section will be significantly diminished if the jury is decreased in size from twelve to six seems an unrealistic one.  A six person criminal jury trial with (or without) the further adoption by court rule and statute of reduced peremptory challenges would preserve the right to a jury trial of one’s peers.  This author, acting as a district, probate and circuit judge, has seen no difference and found no persuasive authority that a verdict rendered in a six person probate, misdemeanor or civil matter has any less validity than that rendered by a twelve person jury panel.  This author would also argue that minority representation, as a meaningful voice, carries less weight on the greater panel than does like service on the lesser panel. 

The prescription and use of medical marijuana.

In People v Redden, ___ Mich App ___ (#295809, 9/14/2010) the Court of Appeals discussed two areas of concern in medical marijuana cases.  Whether the patient (defendant) was prescribed the medical marijuana during the course of a bona fide physician-patient relationship and whether the defendant has a serious or debilitating medical condition. 

MCL 333.26428(a)(1) states that a medical-purpose defense shall be presumed valid if: A physician has stated that, in the physician’s professional opinion, after having completed a full assessment of the patient’s medical history and current medical condition made in the course of a bona fide physician-patient relationship, the patient is likely to receive therapeutic or palliative benefit from the medical use of marihuana to treat or alleviate the patient’s serious or debilitating medical condition or symptoms of the patient’s serious or debilitating medical condition . . . .

The MMMA does not define the phrase “bona fide physician-patient relationship.” When words or phrases are not defined in a statute, a dictionary may be consulted. People v Peals, 476 Mich 636, 641 (2006). Random House Webster’s College Dictionary (1997) defines “bona fide” as “1. made, done, etc., in good faith; without deception or fraud. 2. authentic; genuine; real.”

Section § 7(b)(5) states that the MMMA “shall not permit any person to . . . [u]se marihuana if that person does not have a serious or debilitating medical condition.” MCL 333.26427(b)(5). Section 3, the definitions section of the MMMA, states: (a) “Debilitating medical condition” means 1 or more of the following: (1) Cancer, glaucoma, positive status for human immunodeficiency virus, acquired immune deficiency syndrome, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, agitation of Alzheimer’s disease, nail patella, or the treatment of these conditions. (2) A chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: cachexia or wasting syndrome; severe and chronic pain; severe nausea; seizures, including but not limited to those characteristic of epilepsy; or severe and persistent muscle spasms, including but not limited to those characteristic of multiple sclerosis. (3) Any other medical condition or its treatment approved by the department, as provided for in section 5(a). [MCL 333.26423.]

Section 3 does not define the phrase “serious medical condition.” MCL 333.26423.  With regard to the phrase “serious medical condition,” Random House Webster’s College Dictionary (1997) defines “serious,” in this context, as “weighty, important, or significant” and “giving cause for apprehension; critical or threatening[.]” Without knowing the nature of defendants’ medical conditions, it is not possible to determine whether they are “serious.” With regard to the phrase “debilitating medical condition,” MCL 333.26423(a)(2) indicates that this phrase includes “[a] chronic or debilitating disease or medical condition or its treatment that produces 1 or more of the following: . . . severe and chronic pain; severe nausea . . . .”

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Both issues center on the underlying concern that persons not be allowed to abuse the allowed use of medical marijuana for a non-serious or debilitating medical condition and that the use of medical marijuana be legitimately prescribed during the course of a legitimate patient-physician relationship.

Imposition of a fine when not allowed by the relevant statute.

My $.02:

In Michigan the allowable incarceration and fine to be imposed for a criminal offense is derived from the corresponding statute setting forth the offense and the possible penalty.  People v Neil, 99 Mich App 677 (1980).  Depending on the particular statute, certain criminal statutes provide for incarceration but do not set forth an allowable fine.  Other statutes allow for the imposition of a fine or incarceration, and other offenses allow for the imposition of a fine and incarceration. 

Under our rules of statutory construction, unambiguous statutes are to be enforced as written.  People v Holder, 483 Mich 168 (2009). Accordingly, it would seem that if a criminal statute does not allow for the imposition of a fine, the same is not authorized as a lawful penalty at sentencing.  See MCL 769.24: “Whenever, in any criminal case, the defendant shall be adjudged guilty and a punishment by fine or imprisonment shall be imposed in excess of that allowed by law, the judgment shall not . . . be wholly reversed . . ., but the same shall be valid and effectual to the extent of the lawful penalty . . ..”

Padilla Risk of Deportation--Ineffective assistance of counsel

At our Criminal Jurisprudence & Practice Committee meeting today there was considerable discussion about the proposed court rules regarding effective assistance of counsel when there is a risk of deportation associated with one's plea of guilty or no contest.


At our meeting prosecutors and defense counsel seem to be in agreement that under Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010), defense counsel is required, at a minimum, to inform a defendant that if (s)he is not a citizen of the United States, their plea of guilty or no contest may result deportation. (If it is clear that the plea of guilty or no contest will result in deportation, Padilla requires that the client be given correct advice; it is, however, not always clear what convictions will result in deportation.)

Because one's status as a United States citizen is not determined by their appearance, defense counsel needs to discuss this risk of non-citizen deportation with each and every client. i.e. a non-citizen may include someone from the Middle East, South America, Canada, Europe or otherwise.

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Accordingly, until otherwise directed by the Supreme Court, it is my intention to begin asking the following questions at any plea of guilty or no contest:

1. Do you understand that if you are not a legal citizen of the United States that your plea of guilty or no contest may result in deportation?

2. Have you discussed this with your attorney?

If this discussion has not taken place, a recess or adjournment will be offered to the defense to allow further discussion or consideration of this issue.

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If you are planning on attending the SBM annual meeting in Grand Rapids, consider attending the panel discussion put on by the Criminal Issues Initiative relating to the appropriate remedies for Padilla violations at the state and federal levels on Thursday, September 30, 2010 from 2:00-4:00 p.m. I have been asked to be the moderator for the panel discussion; Frank Eaman will be speaking on federal issues; Noel Saleh will be the immigration expert, and a third tbd person will speak to state procedures.

FHA SHORT-REFI PROGRAM for mortgages under water

Beginning September 7th, FHA has a new program for some underwater borrowers. As many as 20 million homeowners may be underwater. FHA and the government fear these homeowners are at much greater risk of foreclosure whether it be a strategic or a traditional foreclosure.

Here are the new program qualifications:

1. Homeowner must be in a negative equity position;
2. Homeowner must be current on the existing mortgage to be refinanced;
3. The homeowner must occupy the subject property (1-4 units) as their primary residence;
4. The homeowner must qualify for the new loan under standard FHA underwriting requirements & possess a "FICO based" decision credit score greater than or equal to 500;
5. Existing loan to be refinanced must not be a FHA-insured loan;
6. Existing first lien holder must write off at least 10 percent of the unpaid principal balance
7. The refinanced FHA-insured first mortgage must have a loan-to-value ratio of no more than 97.75 percent;
8. Non-extinguished existing subordinate mortgages must be re-subordinated and the new loan may not have a combined loan-to-value ratio greater than 115 percent;
9. For loans that receive a "refer" risk classification from TOTAL Mortgage Scorecard (TOTAL) and/or are manually underwritten, the homeowner's total monthly mortgage payment, including the first and any subordinate mortgage(s), cannot be greater than 31 percent of gross monthly income and total debt, including all recurring debts, cannot be greater than 50 percent of gross monthly income;
10. FHA mortgagees are not permitted to use premium pricing to pay off existing debt obligations to qualify the borrower for the new loan;
11. FHA mortgagees are not permitted to make mortgage payments on behalf of the borrowers or otherwise bring the existing loan current to make it eligible for FHA insurance; and
12. Existing loan to be refinanced may not have been brought current by the existing first lien holder, except through an acceptable permanent loan modification as described below.

see also...

http://portal.hud.gov/portal/page/portal/HUD/press/press_releases_media_advisories/2010/HUDNo.10-173

http://blogs.wsj.com/developments/2010/09/06/the-fhas-short-refinance-program-frequently-asked-questions/

http://www.rwbpress.com/2010/09/10/federal-housing-administration-short-refinance-program-fha-underwater-refinancing-plan-may-prevent-foreclosure/

Change in Domicile

Davenport v Mosholder, Unpub, (#295852, 9/9/2010)

Defendant appealed the circuit court order granting plaintiff’s motion to change the domicile of the parties’ minor child from Michigan to Georgia. The judgment of divorce in 2006 provided that the parties would share joint legal and joint physical custody of their child. In 2009 the mother filed a petition to change domicile to Georgia. The mother planned to remarry in February 2010, and her fiancé resided in Georgia. The father opposed the child’s move.

On appeal the father asserts that the circuit court erred by declining to consider whether clear and convincing evidence established that the move to Georgia served the child’s best interests, as required by MCL 722.23. The circuit court found that an established custodial environment existed with both parents, with the mother having “primary physical custody” during the school year. However, the circuit court ruled that the proposed move to Georgia would not alter the child’s established custodial environment because the father will have the opportunity to exercise 138 overnights with the child, which is nearly the same amount he currently enjoys. . . . The child will have open access to both parents and both parents have open access to him. This provides him with continued security and stability even though the custodial schedule and his legal residence and domicile have changed.

The Court of Appeals reversed. A custodial environment “is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). “Where there is a joint established custodial environment, neither parent’s custody may be disrupted absent clear and convincing evidence.” Sinicropi v Mazurek, 273 Mich App 149, 178 (2006). If a proposed relocation “would result in a change in parenting time so great as to necessarily change the established custodial environment,” the court must conduct an inquiry into the best interest factors set forth in MCL 722.23. In ascertaining whether a proposed change modifies an established custodial environment, “it is the child’s standpoint, rather than that of the parents, that is controlling.” Pierron v Pierron, 486 Mich 81, 92 (2010).

The circuit court’s finding that the move to Georgia would occasion no change in the child’s established custodial environment contravenes the great weight of the evidence. The record supports that the father enjoyed almost daily contact with his son, attended and helped coach his flag football practices, and served as the child’s scout den leader. The child and father regularly read together, played catch and golf, and worked on science projects. Viewed from the child’s standpoint, a move to Georgia would disrupt the child’s ready access to his father and impair the child’s ability to receive guidance, structure, and comfort from his father. We reject the notion that contact through a webcam, even if maintained daily, may effectively substitute for the established custodial environment present in this case.

Michigan Supreme Court holds that evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally insufficient to support defendant’s conviction under MCL 750.145 for doing an act that tended to cause a minor child to become neglected or delinquent.

People v Tennyson, ___ Mich ___ ( #137755, 9/7/2010)


In Tennyson, supra, the Michigan Supreme Court granted leave to appeal to consider whether evidence that a child was present in a home in which defendant was in possession of drugs and firearms is, by itself, legally sufficient to support defendant’s conviction under MCL 750.145 for doing an act that “tended to cause a minor child to become neglected or delinquent so as to tend to come under the jurisdiction of” the family division of the circuit court.

The Supreme Court held that where there is no evidence that the child was aware of such drugs or firearms that there is insufficient evidence to support defendant’s conviction under this statute. To decide otherwise would render a conviction under MCL 750.145 an increasingly routine appendage to a broad array of other criminal charges in instances in which a child is merely present in a home where evidence of a crime has been uncovered. Moreover, to decide otherwise would have considerable implications for the process by which parental rights are terminated in this state, for, as the facts of this case demonstrate, a conviction under MCL 750.145 would almost certainly constitute a trigger at least for the initiation of the termination process by the Department of Human Services. Because this result has never before been reached by courts of this state, and because we believe that such result was never intended by the Legislature, we reverse in part the judgment of the Court of Appeals, vacate defendant’s conviction under MCL 750.145, and remand to the trial court for proceedings consistent with this opinion. Defendant’s drug and firearms convictions, which the Court of Appeals has affirmed, are not affected by this decision.

A defendant is entitled to resentencing if his sentence is based on inaccurate information.

People v Jackson, ___ Mich ___ (#138988, 7/7/2010)


In Jackson, supra the Michigan Supreme Court held that a defendant is entitled to resentencing for an armed-robbery conviction when the Court of Appeals vacated his concurrent convictions for felonious assault that were used as a factor in calculating his sentence for armed robbery. Under the Michigan Court Rules, Court of Appeals’ remands for resentencing are governed by MCL 769.34(10) which requires that cases be remanded when the sentence is based on inaccurate information. We therefore conclude that defendant is entitled to resentencing because his sentence is now based on inaccurate information.

Eligibility for Medicaid long-term care benefits in Michigan--divesture.

Mackey v Dep’t of Social Servs, ___ Mich App ___ (#288966, 9/7/2010)


To be eligible for Medicaid long-term care benefits in Michigan, an individual must meet a number of criteria, including having $2,000 or less in countable assets. Ronney v Dep’t of Social Servs, 210 Mich App 312, 315 (1995). A Medicaid applicant eligible for long-term care benefits is subject to a divestment penalty if she transfers a resource during the five-year “look-back” period for less than fair market value and that resource is not otherwise excluded as a divestment. 42 USC 1396p(c)(1).

Less than fair market value means the compensation received in return for a resource was worth less than the fair market value of the resource” and elaborates that compensation must have “tangible form” and “intrinsic value.” i.e. the amount of money that a ready, willing, and able buyer would pay for the asset on the open market . . . . Wolfe-Haddad Estate v Oakland Co, 272 Mich App 323, 325-326 (2006) (emphasis added).

In this case petitioner invested a sizeable sum in the Marden Family L.L.C., created solely for the purpose of circumventing Medicaid eligibility requirements and which ceded total control to petitioner’s daughter (and fiduciary) for a fraction of the cost of petitioner’s investment. Under the terms of the agreement, petitioner would only receive a marginal return on her unsecured investment after two years. A willing buyer could not acquire such an asset on the open market, in an arm’s-length transaction. Therefore, the transaction was for less than fair market value and constituted a divestment of assets not subject to an exclusion.

The risk of deportation as a potential consequence of a guilty plea.

In Padilla v Kentucky, ___ US ___; 130 S Ct 1473 (2010) the United States Supreme Court held that defense counsel is required to inform a defendant about the risk of deportation as a potential consequence of a guilty plea when the risk of deportation is clear. The Supreme Court also noted that in “situations in which the deportation consequences of a particular plea are unclear or uncertain, … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”

The Michigan Supreme Court is considering the adoption of a specific Court Rule to implement this decision. Proposal A would require a judge to ask a noncitizen defendant and the defendant’s lawyer if they have discussed possible risk of deportation as a consequence of a guilty plea. The focus of this inquiry is whether the defendant is a noncitizen, and what the defense counsel has told the defendant. Proposal B would require a judge to give general advice to any defendant (whether or not the defendant is represented by counsel) that a guilty plea by a noncitizen may carry immigration consequences. This alternative would obviate the need to determine the defendant’s citizenship status, which the defendant may not know or be willing to divulge.

On September 10, 2010 the State Bar Criminal Jurisprudence & Practice Committee will discuss the U.S. Supreme Court decision and the proposed Michigan Court Rule alternatives.  CJ&P reviews proposed court rules and statutes related to criminal procedure and practice in state courts and makes recommendations concerning improvements in the operation of criminal law and procedure to promote the fair, speedy and efficient administration of criminal justice.  As co-chair of this committee, I would be interested in your comments or suggestions.  You can email me at dhoort@ioniacounty.org.

Non-Profit Organization IRS filing requirement

In the past, 501(c)(3) organizations earning less than $25,000 a year were not required to file with the Internal Revenue Service. That changed in 2006 and small organizations that have not filed for the past three years are in danger of losing their tax-exempt status.

The Pension Protection Act of 2006 requires the IRS to revoke the federal tax exemption of any non-profit organization required to file an annual return that has failed to do so for three consecutive years. Nonprofits that wish to have their exemptions reinstated will be required to reapply to the IRS for tax-exempt status, a process that can take several months and requires a user fee of $400 or $850. The IRS will start issuing the revocation notices in 2011.

The Internal Revenue Service is providing a one-time relief program for small nonprofits and extending the deadline for filing the 990N or 990E-Z (also called the e-postcard) until October 15, 2010. The failure to do so will affect not only the organizations that lose their exemptions but also the donors and funders that support the organizations and the people that rely on their services.

Follow these step by step instructions to see if your organization is on the list:
1. Go to: http://www.irs.gov/charities/article/0,,id=225889,00.html
2. Scroll down the page until you see the list of states
3. Go to Michigan and Click on the PDF (the Excel spreadsheet is quite large and will take up a lot of space on your computer)
4. Search for your organization alphabetically (by your legal name)
5. Contact the IRS directly if you have questions or need information about filing at 1-877-829-5500

My suggestion for preliminary examination reform.

My suggestion for preliminary examination reform in criminal cases, to minimize the time and expense to litigants, witnesses, attorneys and court, but preserve a defendant's right to this sometimes necessary check and balance.

The purpose of a preliminary examination is whether there exist probable cause to believe both that an offense not cognizable by the district court has been committed and that the defendant committed it.

My suggestion:

As per existing criminal procedure, a defendant would still be arraigned by the district court judge/magistrate on the felony complaint, with bond set and counsel, if necessary, appointed.  However, instead of the case being set on for a preliminary examination in district court, the case would go to the circuit court for a circuit court arraignment with the assigned circuit judge. The right to a preliminary examination would be preserved, but in circuit court, by the filing of a sworn affidavit challenging the probable cause to believe an offense not cognizable by the district court has been committed and that defendant committed it.

Because a preliminary examination is sometimes legitimately used as a means of trial strategy, with this change the rules of discovery would be expanded to require witnesses to speak with an attorney (or his/her designee). At the witness’ request, the interview would be taped in its entirety. As is done in civil cases, one could also allow for depositions if necessary to preserve testimony for use at trial under MRE 804.

Newly available evidence versus newly discovered evidence

In People v Terrell, __ Mich App __ (#286834, 8/26/2010) the Court of Appeals held that when a defendant knew or should have known that his codefendant could provide exculpatory testimony; the codefendant asserting his/her privilege against self-incrimination does equal newly discovered evidence but is instead merely newly available evidence.


A new trial based on newly discovered evidence is warranted where the defendant satisfies the following four part test: “(1) ‘the evidence itself, not merely its materiality, was newly discovered’; (2) ‘the newly discovered evidence was not cumulative’; (3) ‘the party could not, using reasonable diligence, have discovered and produced the evidence at trial’; and (4) the new evidence makes a different result probable on retrial.” People v Cress, 468 Mich 678, 691, 692 (2003). Quoting People v Johnson, 451 Mich 115, 118 n 6 (1996).

If a codefendant invokes his privilege against self incrimination and refuses to testify, a defendant can be denied the benefit of any potentially exculpatory testimony the codefendant might have provided. See Owen, 500 F3d at 91. In such case, the trial court could grant a severance if it is persuaded that the deprivation causes the defendant prejudice. Id. The prosecutor could confer limited immunity on the codefendant so he may testify truthfully and that, as a last resort, a defendant could take the stand and convey his story. Id. at 92. Under MCR 6.121(C) a defendant is entitled to severance if he makes a “showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”

Although newly available evidence does not constitute newly discovered evidence sufficient to warrant a new trial, this does not preclude the possibility that a codefendant’s post-trial or post-conviction exculpatory statements may ever qualify as newly discovered evidence under MCR 6.431(B). There may be cases where such evidence does indeed constitute newly discovered evidence. However, in this case, defendant knew or should have known that his codefendant could offer material testimony regarding defendant’s role in the charged crime; therefore, defendant cannot claim that he “discovered” that evidence only after trial.

Serious impairment of body function in no fault automobile accident cases.

On July 31, 2010 the Michigan Supreme Court in McCormick v Carrier overturned the existing case law interpretation found in Kreiner v Fischer, 471 Mich 109 (2004) of a serious impairment of body function for no fault automobile accident cases. Under MCL 500.3135, there is tort liability for non-economic loss arising out of the ownership, maintenance, or use of a qualifying motor vehicle “for noneconomic loss caused by his or her ownership, maintenance, or use of a motor vehicle only if the injured person has suffered death, serious impairment of body function, or permanent serious disfigurement.”


In my first jury trial since this decision, I used the following jury instruction today (based on McCormick) to explain a Serious impairment of body function:

Serious impairment of body function is a (1) an objectively manifested impairment (observable or perceivable from actual symptoms or conditions) (2) of an important body function (a body function of value, significance, or consequence to the injured person) that (3) affects the person’s general ability to lead his or her normal life (influences some of the plaintiff’s capacity to live in his or her normal manner of living).

Under the first prong, it must be established that the injured person has suffered an objectively manifested impairment of body function. As such the focus is not on the injury itself, but how the injury affected a particular body function. An objectively manifested impairment is an impairment that is evidenced by actual symptoms or conditions that someone other than the injured person would observe or perceive as impairing a body function. In other words, an “objectively manifested” impairment is commonly understood as one observable or perceivable from actual symptoms or conditions.

If there is an objectively manifested impairment of body function, the next question is whether the impaired body function is “important.” The relevant definition of the adjective “important” is ‘marked by or having great value, significance, or consequence’. Whether a body function has great “value,” “significance,” or “consequence” will vary depending on the person. Therefore, this prong is an inherently subjective inquiry that must be decided on a case-by-case basis, because what may seem to be a trivial body function for most people may be subjectively important to some, depending on the relationship of that function to the person’s life. Likewise, if as to that person, the impairment is of an unimportant body function, the person has not suffered an impairment of an important body function. What is important to one is not important to all; a brief impairment may be devastating whereas a near permanent impairment may have little effect.

Finally, if the injured person has suffered an objectively manifested impairment of body function, and that body function is important to that person, then you must determine whether the impairment “affects the person’s general ability to lead his or her normal life.” To “affect” the person’s “general ability” to lead his or her normal life is to influence some of the person’s power or skill, i.e., the person’s capacity, to lead a normal life. In that regards, “to lead his or her normal life” is to have an influence on some of the person’s capacity to live in his or her normal manner of living. This requires a subjective, person and fact specific inquiry that must be decided on a case-by-case basis. Accordingly, this determining the effect or influence that the impairment has had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the plaintiff’s life before and after the incident.

In that regards the law merely requires that a person’s general ability to lead his or her normal life has been affected, not necessarily destroyed. Thus, the consideration is not only whether the impairment has led the person to completely cease a pre-incident activity or lifestyle element, but also whether, although a person is able to lead his or her pre-incident normal life, the person’s general ability to do so was nonetheless affected. Second, and relatedly, the law only requires that some of the person’s ability to live in his or her normal manner of living has been affected, not that some of the person’s normal manner of living has been affected. While the extent to which a person’s general ability to live his or her normal life is affected by an impairment is undoubtedly related to what the person’s normal manner of living is, there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected. Third, and finally, the law does not create an express temporal requirement as to how long an impairment must last in order to have an effect on “the person’s general ability to live his or her normal life.” An impairment does not have to be permanent in order to be a serious impairment of body function.

If you decide that all three elements have been proved, then plaintiff is entitled to recover damages for non-economic loss for pain and suffering, mental anguish, fright and shock, denial of social pleasure and enjoyments, embarrassment, humiliation or mortification, aggravation of a pre-existing ailment or condition that you determine the plaintiff has sustained as a result of that injury.