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.