The permissibility of dividing social security benefits in a Judgment of Divorce

In Biondo v Biondo, __ Mich App __ (Unpub, #294694, 3/15/2011) the Court of Appeals held that the circuit court may consider the parties’ anticipated social security benefits as one factor, among others, to be considered when devising an equitable distribution of marital property. But, in endeavoring to divide the marital estate, the court may not treat social security benefits as tantamount to a marital asset. Instead, the circuit court may take into account, in a general sense, the extent to which social security benefits received by the parties affect the Sparks factors.

Although federal law does not preempt laws governing divorce or domestic relations, a legal arena belonging to the states rather than the United States. Hisquierdo v Hisquierdo, 439 US 572, 581; 99 S Ct 802; 59 L Ed 2d 1 (1979), the federal interest in social security benefits preempts enforcement of a Judgment of Divorce and the parties’ agreement therein to equalize their social security benefits.  Application of social security benefits for marital property purposes remains specifically excluded from this exception, as Congress declared in 42 USC 659(i)(3)(B)(ii) that the term “alimony” does not encompass “any payment or transfer of property or its value by an individual to the spouse or a former spouse of the individual in compliance with any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses.” Therefore, the circuit court erred by enforcing the consent judgment’s social security provision.

Applicability of Padilla to the Holmes Youthful Trainee Act.

The Michigan Supreme Court in People v Ali Abbas, __ Mich __ (#141797, 3/9/2011)in lieu of granting leave to appeal, ordered a remand to the Court of Appeals for consideration as on leave granted. The Court of Appeals was ordered to address whether: (1) if, as the defendant contends, his trial counsel failed to advise him that he was not eligible for Holmes Youthful Trainee Act (MCL 762.11 et seq.) status, the Kalamazoo Circuit Court nevertheless correctly held that the defendant could not meet the standard for establishing entitlement to relief from judgment absent the retroactive application of Padilla v Kentucky, 599 US ___ ; 130 S Ct 1473; 176 L Ed 2d 2928 (2010); and (2) the decision in Padilla may be applied retroactively in this case.

SCAO study on the impact of ordering cases to Mediation

The State Court Administrator Office has released a study on the impact of ordering cases to mediation where one or more parties rejected case evaluation awards under $25,000.

Mediation, formalized through a series of court rules adopted in 2000, has been considered to be one tool courts could use to help parties resolve their case earlier and without adjudication by the court.

This study examined the effect of ordering mediation in select civil cases where case evaluation awards have been rejected. Ninety-three randomly selected cases from the circuit courts in Kent, Macomb, and Oakland counties were included in the study. The cases met the following criteria: (1) the case evaluation award was under $25,000; (2) the award was rejected by one or all of the parties; (3) parties were ordered to mediation either with a private mediator or with a Community Dispute Resolution Program (CDRP) center; (4) the case was ordered to mediation under the pilot; and (5) the case was disposed between March 1, 2007, and September 17, 2009.

Seventy-seven (83 percent) of the cases settled prior to trial, 9 (10 percent) were disposed by summary disposition or default judgment, and the remaining 7 (7 percent) were disposed by trial. On average, cases were 340 days old when ordered to mediation. Forty percent of the cases were disposed within an average of 66 days from the order to mediate. After mediation was conducted and an agreement was reached at the table, an additional 30 cases were disposed; thus 67 cases (72 percent) were disposed within an average of 78 days from the order to mediate. An additional 15 (88 percent) cases settled after a settlement conference or mediation; an average of 99 days after the order to mediate.

Cases settling either pre-mediation or through the mediation event were disposed on average within 93 days of the order to mediate; cases not settled were disposed on average 178 days after the order to mediate. Settlement rates at mediation were higher when all summary disposition motions were decided prior to mediation than when a summary disposition motion was pending. Cases with trial dates scheduled early did not have higher settlement rates than cases without a trial date scheduled early. Further, nearly one-half of the cases with early scheduling of trial dates were ultimately escheduled between one and three times. Taken together, the study suggests that the practice of early scheduling of trial dates should be reassessed for its efficacy in promoting settlement.

Whether a premises owner owes a duty to an employee of an independent contractor.

In Jones v Daimler Chrysler Corporation, __ Mich __ (#140889, 2/4/2011) the Michigan Supreme Court re-affirmed that a premises owner does not have a duty to protect an employee of an independent contractor hired to perform construction work on the owner’s premises, from the hazardous condition that contributed to the plaintiff’s injury, where the defendant delegated to the contractor the task of performing the construction work. Banaszak v Northwest Airlines, Inc, 485 Mich 1034 (2010); Young v Delcor Assoc, 477 Mich 931 (2006). Moreover, even if premises liability had applied, the injured plaintiff could not have recovered where he was aware of the hazard, and indeed had ordered its creation. Riddle v McLouth Steel Products Corp, 440 Mich 86 (1992). An owner of property cannot be held liable under premises liability law for a design of the property that permits an invitee or person in control of the property to create a hazardous condition where none existed before.

Use of a screen to shield a child complainant

In People v Rose, __ Mich __ (#141659, 2/2/2011) the Michigan Supreme Court granted leave to appeal whether the use of a screen to shield a child complainant from the defendant during testimony violates the Confrontation Clause or prejudices the defendant because it impinges on the presumption of innocence.

The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae

Evidence of defendant’s prior conviction for criminal sexual conduct may be admissible under MCL 768.27a.

In People v Yeakey, Unpub, Mich App (#292912, 1/18/2011) the Court of Appeals re-affirmed that evidence of a defendant’s prior conviction for criminal sexual conduct is admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a.

MRE 404(b)(1) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.  To be admissible under MRE 404(b), other acts evidence 1) must be offered for a proper purpose, 2) must be relevant, and 3) must not have a probative value substantially outweighed by its potential for unfair prejudice. People v Knox, 469 Mich 502 (2004).

MCL 768.27a provides that (1) notwithstanding section MCL 768.27, in a criminal case in which the defendant is accused of committing a listed offense against a minor, evidence that the defendant committed another listed offense against a minor is admissible and may be considered for its bearing on any matter to which it is relevant. If the prosecuting attorney intends to offer evidence under this section, the prosecuting attorney shall disclose the evidence to the defendant at least 15 days before the scheduled date of trial or at a later time as allowed by the court for good cause shown, including the statements of witnesses or a summary of the substance of any testimony that is expected to be offered.  (2) As used in this section: (a) “Listed offense” means that term as defined in section 2 of the sex offenders registration act, 1994 PA 295, MCL 28.722. (b) “Minor” means an individual less than 18 years of age.

Under MCL 768.27a, if a defendant is accused of committing a listed offense against a minor, the prosecution may present evidence that the defendant committed another listed offense against a minor without justifying the admissibility of the evidence under MRE 404(b). People vPattison, 276 Mich App 613 (2007). While such evidence is still subject to the requirements of MRE 401 and 403, the statute allows, in many cases, “evidence that previously would have been inadmissible, because it allows what may have been categorized as propensity evidence to be admitted.

In Yeakey the prosecution filed a “Notice of Intent to Present Other Acts Evidence at Trial Pursuant to MCL 768.27a and MRE 404(b).” There was apparently no objection to the introduction of such evidence by defense counsel and there is no indication whether the trial court allowed the admission of the challenged evidence under MCL 768.27a, or MRE 404(b), or both.

It is uncontested that defendant was previously convicted of a listed offense against a minor, as defined in MCL 768.27a, and was charged in the instant matter with a listed offense against a minor, third degree criminal sexual conduct. The evidence of defendant’s prior conviction was thus admissible and “may be considered for its bearing on any matter to which it is relevant” under MCL 768.27a. Further, evidence of defendant’s prior conviction was relevant under the definition set forth in MRE 401, because the evidence made the likelihood of defendant’s behavior with K. more probable. People v Mann, ___Mich App ___ (2010).  And the probative value of defendant’s prior conviction was not substantially outweighed by the danger of unfair prejudice under MRE 403. The defendant’s prior conviction was probative on the issue of whether K. was telling the truth at trial, or whether defendant was telling the truth. Defendant denied that any sexual contact took place. He further portrayed himself as an honest person and one that would admit when he has done something wrong. The testimony concerning defendant’s prior conviction focused, in large part, on whether he initially admitted to police in that case that he had had sexual intercourse with an underage girl, or whether he had denied it. Given that defendant’s credibility was directly placed at issue and his denial of any sexual contact also placed K.’s credibility at issue, the circumstances surrounding his prior criminal sexual conduct conviction were highly probative and the value of this evidence was not substantially outweighed by unfair prejudice.

Finally, the trial court instructed the jury: The prosecution has introduced evidence of a claimed sexual misconduct by the defendant with a minor, for which he is not now on trial. Before you may consider such alleged acts as evidence against the defendant, you must first find that the defendant actually committed those acts. If you find that the defendant did commit those acts, you may consider them in deciding if the defendant committed the offense for which he is now on trial. Because a jury is presumed to follow its instructions, People v Abraham, 256 Mich App 265 (2003), it is presumed that the jury followed the trial court’s caution regarding the use of defendant’s prior conviction in this matter.

The trial court did not thereby abuse its discretion in admitting evidence of defendant’s prior criminal sexual conduct conviction under MCL 768.27a. (The Court of Appeals finally remarked that it wan not therefore necessary to address whether it was also alternatively admissible under MRE 404(b).

The failure to advise a defendant of a SORA requirement when registration is succinct, clear and explicit is ineffective assistance of counsel.

In People v Fonville, __ Mich App __ (#294554, 1/25/2011) the Court of Appeals ordered that defendant be allowed to withdraw his plea of guilty to child enticement because defense counsel failed to advise defendant that he would be required to register under the SORA.  Like deportation, sex offender registration is not a criminal sanction, but is a particularly severe penalty.  In addition to the typical stigma that convicted criminals are subject to upon release from imprisonment, sexual offenders are subject to unique ramifications, including, for example, residency reporting requirements70 and place of domicile restrictions.  Moreover, sex offender registration is “intimately related to the criminal process.”  The “automatic result” of sex offender registration for certain defendants makes it difficult “to divorce the penalty from the conviction.”

If the sex offender registration statute is “succinct, clear, and explicit” in defining the registration requirement for a particular conviction, applying the Padilla rationale, defense counsel must advise a defendant that registration as a sexual offender is a consequence of his guilty plea.  The failure to inform a pleading defendant that his plea will necessarily require registration as a sex offender will thereby affect whether the plea was knowingly made.