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).