GENESEE COURT GIVES DAD CHANGE OF CUSTODY , COURT OF APPEALS TAKES IT AWAY.BY Flint Divorce Attorney 235-1970.

#TERRY TALKS “Ideas worth sharing “

# 11/05/13 , -TOPIC #Change of #Child #Custody in #Michigan.

The Defendant mother appeals as of right the Genesee trial court’s order granting Father plaintiff’s motion to change custody with respect to the parties’ minor child. The Michigan Court of Appeals reversed and remand for a determination by
the Genesee County trial court whether there existed proper cause or a change of circumstances, as necessary to modify the previous custody award.

To be clear,The Michigan Court of Appeals held that the determination of proper
cause or a change of circumstances is a mandatory ruling that must expressly be made by the trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances  exists.

On remand, the trial court is to rule on whether there was proper cause or a change of circumstances. The existing evidentiary record should be sufficient to make the determination, but the trial court is free to entertain additional proofs if the court deems it necessary. The Vodvarka decision provides an excellent discussion of what constitutes proper cause and a change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at 509-514. Should the trial court rule that the threshold burden was not satisfied, the court shall
deny plaintiff’s motion to change custody. Should the trial court rule otherwise, defendant, if desired, can pursue a new appeal relative to the threshold ruling.

By Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group www.terrytalks.com

DATE:11/05/13

TIME:7:00 am

Issues discussed in this presentation  are :

Motion to change custody;

Whether “proper cause” or “a change of circumstances” (COC) existed;

MCL 722.27(1)(c);

Vodvarka v. Grasmeyer; In re Anjoski;

Mitchell v. Mitchell; MCL 722.24(1); Harvey v. Harvey; “Established custodial environment” (ECE)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Bangs v. Groulx

e-Journal Number: 55655

Judge(s): Per Curiam – Murphy, Cavanagh, and Stephens

UNPUBLISHED ,October 22, 2013 , Michigan Court of Appeals No. 314566

Genesee Circuit Court  Family Division  LC No. 08-285186-DP

DECISION OF THE MICHIGAN COURT OF APPEALS

FATHERS WIN WAS REVERSED

 

The Michigan  Court of Appeals decided  that “the determination of proper cause or a change of circumstances is a mandatory ruling that must expressly be made by the  Genesee County trial court whenever modification of a custody order is being contemplated, regardless of whether the parties raise the issue or even agree that proper cause or a change of circumstances exists,” the Michigan Court of Appeals  reversed the Genesee County Family Court, the trial court’s order granting the plaintiff-father’s motion to change custody of the parties’ child and remanded.

LOCAL TRIAL COURTS ARE USUALLY UPHELD

Local Courts are usually upheld.with respect to child custody disputes, “all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

MCL 722.28. MCL 722.27 provides in relevant part:

(1) If a child custody dispute has been submitted to the circuit court as an

original action under this act or has arisen incidentally from another action in the

circuit court or an order or judgment of the circuit court, for the best interests of

the child the court may do 1 or more of the following:

. . .

(c) Modify or amend its previous judgments or orders for proper cause

shown or because of change of circumstances[.]

VODVARKA CASE

The seminal case on the threshold inquiry of whether there existed proper cause or a

change of circumstances for purposes of modifying a custody order is of course Vodvarka v

Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003). In construing MCL 722.27(1)(c), the

Vodvarka panel stated that the party seeking a change in custody must establish, by a

preponderance of the evidence, either proper cause or a change of circumstances, and if the

movant fails to so establish, “the court is precluded from holding a child custody hearing.”

Vodvarka, 259 Mich App at 508-509; see also In re Anjoski, 283 Mich App 41, 53; 770 NW2d 1

(2009).1

BURDEN TO SHOW PROPER CAUSE OF CHANGE IN CIRCUMSTANCES

Absent satisfaction of the burden to show proper cause or a change of circumstances, a

trial court is not authorized under the statute to revisit a valid prior custody decision and to

engage in reconsideration of the statutory best-interest factors. Vodvarka, 259 Mich App at 508-

509. The purpose of requiring proper cause or a change of circumstances, as well as requiring

clear and convincing evidence to change an established custodial environment, is to erect a

barrier against removing a child from an established custodial environment except in compelling

cases. Id. at 509; Anjoski, 283 Mich App at 53.

UNDERLYING JUDGEMENT

A 2010 consent judgment awarded the parties joint legal and physical custody of their child. In 2012, plaintiff moved to modify custody, seeking sole or primary physical custody.

He “set forth a litany of allegations” he claimed constituted proper cause or a COC. In her response, the defendant-mother denied all of the allegations.

The Genesee  trial court conducted a five-day evidentiary hearing on the motion.

“On the first day before testimony was taken, defendant asserted that plaintiff had not satisfied the threshold of showing proper cause or a change of circumstances.

” The trial court indicated that if she filed a written motion on the issue, it would consider it at the end of plaintiff’s proofs.

Defendant never filed the motion, and she never mentioned the issue again.

FINDING OF THE GENESEE TRIAL COURT

The Genesee  trial court found that there was a joint ECE…[ joint established custodial

environment…]with both parties and that there was clear and convincing evidence, upon examination of the statutory “best interest” factors, to modify physical custody and award sole custody to plaintiff.

It never expressly ruled on whether proper cause or a COC were shown.

See MCL 722.23 (best-interest factors); MCL 722.27(1)(c) (established custodial

environment cannot be changed absent “clear and convincing evidence” that the change “is in the

best interest of the child”).

The Michigan Court of Appeals  noted that “there is no error in conducting a single evidentiary hearing” encompassing (1) whether there exists proper cause or a COC […CHANGE OF CIRCUMSTANCES…] as needed to modify custody, (2) a determination of the child’s ECE, bearing on the burden of proof, (3) an examination of the best interest factors, and (4) a ruling on the custody motion.

However, Mitchell indicates that the issue of “proper cause or a change of circumstances must be the first issue reviewed and resolved by the trial court.”

GENESEE COURT COMMITTED ERROR

The Appellate court held that the Genesee  “trial court committed clear legal error in directing defendant to file a motion on the threshold issue, given that the burden was on plaintiff as movant to prove that the threshold was met by the preponderance of the evidence” and that defendant denied the allegations.

Further, regardless of whether defendant failed to preserve her appellate arguments or she completely waived them, the Appellate  court could not affirm – reversal and remand was necessary.

Regardless of whether defendant failed to preserve her appellate arguments or, even

further, completely waived the arguments, The Michigan Court of Appeals  affirm and reversal and remand is

necessary. “In all actions involving dispute of a minor child’s custody, the..[Genesee..] court shall declare the

child’s inherent rights and establish the rights and duties as to the child’s custody, support, and

parenting time in accordance with this act.” MCL 722.24(1) (emphasis added). The Michigan Court of Appeals held  that even if defendant had expressly agreed that there existed proper cause or a change of

circumstances, the trial court was nevertheless required to address the issue at some level and

make a ruling on the record.

SENT BACK TO GENESEE TRIAL COURT

On remand, the Genesee  trial court is to rule on whether there was proper cause or a change of

circumstances. The existing evidentiary record should be sufficient to make the determination,

but the trial court is free to entertain additional proofs if the court deems it necessary. The

Vodvarka decision provides an excellent discussion of what constitutes proper cause and a

change of circumstances and should be utilized by the trial court. Vodvarka, 259 Mich App at

509-514. Should the Genesee  trial court rule that the threshold burden was not satisfied, the Genesee Trial  court shall deny plaintiff’s motion to change custody. Should the Genesee  trial court rule otherwise, defendant, if

desired, can pursue a new appeal relative to the threshold ruling.

[This article is a mix of the e-journal and the Unpublished case with modifications by this author for social media presentation. DO NOT rely on this content without seeking legal counsel.][cya]

-Terry-

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

– BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRY ON YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY  on FLICKR –http://www.flickr.com/photos/30366181@N05/

_________________________________________________________________

POWER OF ATTORNEY FOR CHILDREN WHEN PARENT GOES INTO REHAB.

AVVO QUESTION 10/26/13:I am on probation if I go into rehab my ex will fight for my daughter. My family stated of need be they will take my daughter.What do I do?

ANSWER: DELEGATE YOUR PARENTAL POWERS TO A FAMILY MEMBER, CALLED AN AGENT,  WHILE YOU ARE IN REHAB.

 

I will presume you are on a criminal probation and you have a drug problem. Since you stated your concern your” ex will fight for your daughter “ it appears your have physical custody of your daughter. If your custody is challenged the criminal probation and drug use will work against you in a Best Interest Factor analysis MCL  722.23 . On these facts  being in rehab should not. What is important is that your daughter is taken care of. Do not leave the child with a family member without  also giving them legal authority through a power of attorney as your agent.

 

DELEGATION OF PARENTAL POWERS

 

I found the following information.see sources below.

 

Step 1: Determine who you want to name as agent ..

An agent should be someone in whom you have  highest degree of confidence.

 

Step 2: Determine the extent of the powers delegated to the agent.

Most parents will wish to delegate full power to the agent to do everything required for the child’s care.

 

SEE-MCL.700.5103  Delegation of powers by parent or guardian

Sec. 5103.  (1) By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.

 

(2) If a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides a delegation under this section is effective until the thirty-first day after the end of the deployment.

 

(3) If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney and provide the court the name, address, and telephone number of the attorney-in-fact.

As amended by 2000 PA 54 (eff. Apr 1, 2000), 2004 PA 93 (eff. May 7, 2004).

 

Step 3: Include examples of the types of powers that you are  delegating.

Some examples of power delegated to the agent are the power to consent to

  • any medical, diagnostic, or surgical procedure

  • any dental procedure

  • use of any medication or other items related to the child’s health

 

Step 4: Have the document signed, witnessed, and notarized.

While a delegation can be executed without  any judicial proceedings, it must be signed, witnessed, and notarized.

 

When to Use

 

A delegation of parental powers is frequently used when parents take a vacation or when a parent joins the armed forces. A delegation of parental powers may also be used to avert a guardianship proceeding if a parental surrogate is needed for a relatively short time due to a parent entering drug treatment or being sent to prison.

 

You should desire to vest in the agents full powers as a substitute parent  to do anything and everything required for the child’s care You should the agent as your attorney-in-fact to do any of the things you, as parent could do on behalf of your child, including, but not limited to the following:

  1. Give parental consent to any medical, diagnostic, or surgical procedure and/or other treatment of any type or nature;

  2. Give parental consent to any dental procedure;

  3. Give parental consent to admission to any hospital or medical center;

  4. Give parental consent to the use of any drugs, medication, therapeutic devices, or other medicines or items related to the child’s health; and

  5. The power in general to take and authorize all acts with respect to our your health and wellbeing, the same as we could do.

 

Primary Sources

http://www.icle.org/modules/formbank/linked_display.aspx?ID=PRB1238&Display=HowToKit

SEE-MCL.700.5103  Delegation of powers by parent or guardian

IF YOU GO INTO DRUG REHAB HOW DO YOU CARE FOR YOUR CHILD?

 

AVVO QUESTION 10/26/13:I am on probation if I go into rehab my ex will fight for my daughter. My family stated of need be they will take my daughter.What do I do?

 

ANSWER: DELEGATE YOUR PARENTAL POWERS TO A FAMILY MEMBER, CALLED AN AGENT,  WHILE YOU ARE IN REHAB.

 

I will presume you are on a criminal probation and you have a drug problem. Since you stated your concern your” ex will fight for your daughter “ it appears your have physical custody of your daughter. If your custody is challenged the criminal probation and drug use will work against you in a Best Interest Factor analysis MCL  722.23 . On these facts  being in rehab should not. What is important is that your daughter is taken care of. Do not leave the child with a family member without  also giving them legal authority through a power of attorney as your agent.

 

DELEGATION OF PARENTAL POWERS

 

I found the following information.see sources below.

 

Step 1: Determine who you want to name as agent ..

 

An agent should be someone in whom you have  highest degree of confidence.

 

Step 2: Determine the extent of the powers delegated to the agent.

 

Most parents will wish to delegate full power to the agent to do everything required for the child’s care.

 

 

 

SEE-MCL.700.5103  Delegation of powers by parent or guardian

 

Sec. 5103.  (1) By a properly executed power of attorney, a parent or guardian of a minor or a guardian of a legally incapacitated individual may delegate to another person, for a period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the minor child or ward, except the power to consent to marriage or adoption of a minor ward or to release of a minor ward for adoption.

 

(2) If a parent or guardian is serving in the armed forces of the United States and is deployed to a foreign nation, and if the power of attorney so provides a delegation under this section is effective until the thirty-first day after the end of the deployment.

 

(3) If a guardian for a minor or legally incapacitated individual delegates any power under this section, the guardian shall notify the court within 7 days after execution of the power of attorney and provide the court the name, address, and telephone number of the attorney-in-fact.

 

As amended by 2000 PA 54 (eff. Apr 1, 2000), 2004 PA 93 (eff. May 7, 2004).

 

Step 3: Include examples of the types of powers that you are  delegating.

 

Some examples of power delegated to the agent are the power to consent to

 

  • any medical, diagnostic, or surgical procedure

  • any dental procedure

  • use of any medication or other items related to the child’s health

 

Step 4: Have the document signed, witnessed, and notarized.

 

While a delegation can be executed without  any judicial proceedings, it must be signed, witnessed, and notarized.

 

When to Use

 

A delegation of parental powers is frequently used when parents take a vacation or when a parent joins the armed forces. A delegation of parental powers may also be used to avert a guardianship proceeding if a parental surrogate is needed for a relatively short time due to a parent entering drug treatment or being sent to prison.

 

You should desire to vest in the agents full powers as a substitute parent  to do anything and everything required for the child’s care You should the agent as your attorney-in-fact to do any of the things you, as parent could do on behalf of your child, including, but not limited to the following:

 

  1. Give parental consent to any medical, diagnostic, or surgical procedure and/or other treatment of any type or nature;

  2. Give parental consent to any dental procedure;

  3. Give parental consent to admission to any hospital or medical center;

  4. Give parental consent to the use of any drugs, medication, therapeutic devices, or other medicines or items related to the child’s health; and

  5. The power in general to take and authorize all acts with respect to our your health and wellbeing, the same as we could do.

 

Primary Sources

 

http://www.icle.org/modules/formbank/linked_display.aspx?ID=PRB1238&Display=HowToKit


SEE-MCL.700.5103  Delegation of powers by parent or guardian

WHAT’S NEXT FOR FLINT?

 

#TERRY TALKS “Ideas worth sharing “

#FLINT, #EMERGENCY MANAGER,#SNYDER

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group  terrytalks consider joining to continue this discussion.

DATE: 10/22/13

TIME:5:00 AM

see: www.terrytalks.com

WHATS NEXT FOR FLINT?

 

Flint is on its third emergency manager this year, but Gov. Rick Snyder said there are still financial issues in the city that need to be worked out. [1] Has the battleground been prepared for a Flint Bankruptcy? How can the work be done in months. Are draconian changes in store? [trb]

see: www.terrytalks.com

 

WHY ARE WE NOT READY

The city is not yet ready to be without an emergency manager, Snyder said Monday, Oct. 21. [1]

It is logical to me that Governor Snyder fired Michael Brown the past Flint Emergency Manager and his State Treasurer Andy Dillion bringing in current Flint Emergency Manager Darnell Earley because his objective have not been met. Just how will Earley complete his job in months?

WHAT WORK IS YET TO BE DONE.

“There’s still work to be done in Flint,” Snyder said. “But I hope it’s a matter of months (for an emergency manager to be phased out[1]

 

WHAT DO WE DO WHEN SNYDER AND HIS EMERGENCY MANAGER QUIT RUNNING FLINT?

I ask often is Flint capable of electing leadership up to the job? The answer is yes, but good people  in political office need your help. Help by insisting that your representative make  the objective of the living document capable of change the “ NEW FLINT MASTER PLAN” a reality. Insist that your elected officials cause a ballot question for the election of a Flint Charter Commission.

SHOULD WE  REORGANIZE HOW OUR CITY IS RUN?

I suggest that you the real leaders of Flint commit to real long term change in Flint. Get active in Charter Revision.

 

“An elected charter revision commission would study the charter, propose changes and then the potential tweaks to the charter would be put to a vote, Kincaid said. The process would take a year and a half.” Flint Journal 09/22/13

 

“I think it’s time right now that we put a charter revision commission in and take a look at that,” Kincaid said. “If you look at what the charter revision commission did back in the 1970s – it lasted 30 years. For something that is going to take effect for the next 20 or 30 years, I think it’s something that you take the time, not just rush to judgment on.”

Flint Journal 09/22/13

 

I agree. [trb]

FLINT CHARTER REVISION,

 

From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Home_Rule_Cities_Act_(Michigan)

The Home Rule City Act was enacted by the Michigan Legislature as Public Act 279 of 1909. This statute provides the framework by which a new city may become incorporated and provide for its own government by adopting a city charter. It also provides for the method by which an existing city may amend or revise its city charter.[Wikipedia]

DEMAND THAT  THE FLINT MASTER PLAN BE OPERATIONALIZE BY THE ELECTION OF A FLINT CHARTER COMMISSION. IT IS THE RESPONSIBLE THING TO DO.

The Flint Master Plan will be adopted with in 30 days. Then  the adoption of the City Zoning changes to operationalize part of the plan within 6 months. But how do we as citizens  put our  Flint Municipal Government on track to create  our IMAGE of Flint. I suggest election of a Charter Commission to make our local contract with the Citizens compatible with our objectives in the New Flint Master Plan.[trb]

 

A Master Plan is a policy document that provides a foundation for City decision-making on issues related to land use, development, community facilities, parks and open space, and much more.[3]

 

I suggest you attend the following.

[2]

 

I suggest that you consider joining or creating a  collective decentralized effort to decide what’s next after adoption of the Flint Master Plan.

 

Lets get moving before the emergency manager leaves.

 

end- Terry Talks www.terrytalks.com

sources;

[1]

MLIVE By Sarah Schuch | sschuch@mlive.com

on October 21, 2013 at 6:15 PM, updated October 21, 2013 at 8:52 PM

[trb]

Comments of Terry Bankert cited [trb] of BLOCK HEADLINE.

[2]

http://www.imagineflint.com/Documents/MapGallery.aspx

[3]

www.imagineflint.com

 

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-TERRY TALKS  MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

-TERRY TALKS  BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRYTALKS   YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY TALKS   FLICKR –http://www.flickr.com/photos/30366181@N05/

– TERRY TALKS  LEGAL ASSISTANCE www.attorneybankert.com

_________________________________________________________________

 

WHAT’S NEXT FOR FLINT AFTER ADOPTION OF FLINT’S NEW MASTER PLAN?

 

#TERRY TALKS “Ideas worth sharing “

#FLINT, #EMERGENCY MANAGER,#SNYDER

Terry R. Bankert P.C., 810-235-1970, Ideas Worth Sharing of Flint, of the law, and by Flint Michigan People. See also Facebook Group  terrytalks consider joining to continue this discussion.

DATE: 10/22/13

TIME:5:00 AM

see: www.terrytalks.com

WHATS NEXT FOR FLINT?

 

Flint is on its third emergency manager this year, but Gov. Rick Snyder said there are still financial issues in the city that need to be worked out. [1] Has the battleground been prepared for a Flint Bankruptcy? How can the work be done in months. Are draconian changes in store? [trb]

see: www.terrytalks.com

 

WHY ARE WE NOT READY

The city is not yet ready to be without an emergency manager, Snyder said Monday, Oct. 21. [1]

It is logical to me that Governor Snyder fired Michael Brown the past Flint Emergency Manager and his State Treasure Andy Dillion bringing in current Flint Emergency Manager Darnell Earley because his objective have not been met. Just how will Earley complete his job in months?

WHAT WORK IS YET TO BE DONE.

“There’s still work to be done in Flint,” Snyder said. “But I hope it’s a matter of months (for an emergency manager to be phased out[1]

 

WHAT DO WE DO WHEN SNYDER AND HIS EMERGENCY MANAGER QUIT RUNNING FLINT?

I ask often is Flint capable of electing leadership up to the job? The answer is yes, but good people  in political office need your help. Help by insisting that your representative make  the objective of the living document capable of change the “ NEW FLINT MASTER PLAN” a reality. Insist that your elected officials cause a ballot question for the election of a Flint Charter Commission.

SHOULD WE  REORGANIZE HOW OUR CITY IS RUN?

I suggest that you the real leaders of Flint commit to real long term change in Flint. Get active in Charter Revision.

 

“An elected charter revision commission would study the charter, propose changes and then the potential tweaks to the charter would be put to a vote, Kincaid said. The process would take a year and a half.” Flint Journal 09/22/13

 

“I think it’s time right now that we put a charter revision commission in and take a look at that,” Kincaid said. “If you look at what the charter revision commission did back in the 1970s – it lasted 30 years. For something that is going to take effect for the next 20 or 30 years, I think it’s something that you take the time, not just rush to judgment on.”

Flint Journal 09/22/13

 

I agree. [trb]

FLINT CHARTER REVISION,

 

From Wikipedia, the free encyclopedia

http://en.wikipedia.org/wiki/Home_Rule_Cities_Act_(Michigan)

The Home Rule City Act was enacted by the Michigan Legislature as Public Act 279 of 1909. This statute provides the framework by which a new city may become incorporated and provide for its own government by adopting a city charter. It also provides for the method by which an existing city may amend or revise its city charter.[Wikipedia]

DEMAND THAT  THE FLINT MASTER PLAN BE OPERATIONALIZE BY THE ELECTION OF A FLINT CHARTER COMMISSION. IT IS THE RESPONSIBLE THING TO DO.

The Flint Master Plan will be adopted with in 30 days. Then  the adoption of the City Zoning changes to operationalize part of the plan within 6 months. But how do we as citizens  put our  Flint Municipal Government on track to create  our IMAGE of Flint. I suggest election of a Charter Commission to make our local contract with the Citizens compatible with our objectives in the New Flint Master Plan.[trb]

 

A Master Plan is a policy document that provides a foundation for City decision-making on issues related to land use, development, community facilities, parks and open space, and much more.[3]

 

I suggest you attend the following.

[2]

 

I suggest that you consider joining the collective decentralized efforts to decide what’s next after adoption of the Flint Master Plan.

 

Lets get moving before the emergency manager leaves.

 

end- Terry Talks www.terrytalks.com

sources;

[1]

MLIVE By Sarah Schuch | sschuch@mlive.com

on October 21, 2013 at 6:15 PM, updated October 21, 2013 at 8:52 PM

[trb]

Comments of Terry Bankert cited [trb] of BLOCK HEADLINE.

[2]

http://www.imagineflint.com/Documents/MapGallery.aspx

[3]

www.imagineflint.com

 

_______________________________________________________

TERRY TALKS  CONNECTIONS:

-TERRY TALKS .COM- www.terrytalks.com

-TERRYTALKS on facebook –https://www.facebook.com/groups/528945820527410

-TERRY TALKS Twitter –www.twitter.com/terrybankert

-TERRY TALKS  MICHIGAN FAMILY LAW ADVOCATE –http://terrybankert.blogspot.com/

-TERRY TALKS  BANKRUPTCY AND MICHIGAN FAMILIES – http://dumpmycreditors.wordpress.com/

– TERRYTALKS   YOUR TUBE- https://www.youtube.com/user/TRBANKERT

-TERRY TALKS   FLICKR –http://www.flickr.com/photos/30366181@N05/

– TERRY TALKS  LEGAL ASSISTANCE www.attorneybankert.com

_________________________________________________________________

 

What power does the Flint Emergency Manager have?

141.1519 Additional actions by emergency manager; authority of chief administrative officer and governing body; suspension; contracts; sale or transfer of public utility.
Sec. 19.

(1) An emergency manager may take 1 or more of the following additional actions with respect to a local government which is in receivership, notwithstanding any charter provision to the contrary:

(a) Analyze factors and circumstances contributing to the financial emergency of the local government and initiate steps to correct the condition.

(b) Amend, revise, approve, or disapprove the budget of the local government, and limit the total amount appropriated or expended.

(c) Receive and disburse on behalf of the local government all federal, state, and local funds earmarked for the local government. These funds may include, but are not limited to, funds for specific programs and the retirement of debt.

(d) Require and approve or disapprove, or amend or revise a plan for paying all outstanding obligations of the local government.

(e) Require and prescribe the form of special reports to be made by the finance officer of the local government to its governing body, the creditors of the local government, the emergency manager, or the public.

(f) Examine all records and books of account, and require under the procedures of the uniform budgeting and accounting act, 1968 PA 2, MCL 141.421 to 141.440a, or 1919 PA 71, MCL 21.41 to 21.55, or both, the attendance of witnesses and the production of books, papers, contracts, and other documents relevant to an analysis of the financial condition of the local government.

(g) Make, approve, or disapprove any appropriation, contract, expenditure, or loan, the creation of any new position, or the filling of any vacancy in a position by any appointing authority.

(h) Review payrolls or other claims against the local government before payment.

(i) Notwithstanding any minimum staffing level requirement established by charter or contract, establish and implement staffing levels for the local government.

(j) Reject, modify, or terminate 1 or more terms and conditions of an existing contract.

(k) After meeting and conferring with the appropriate bargaining representative and, if in the emergency manager’s sole discretion and judgment, a prompt and satisfactory resolution is unlikely to be obtained, reject, modify, or terminate 1 or more terms and conditions of an existing collective bargaining agreement. The rejection, modification, or termination of 1 or more terms and conditions of an existing collective bargaining agreement under this subdivision is a legitimate exercise of the state’s sovereign powers if the emergency manager and state treasurer determine that all of the following conditions are satisfied:

(i) The financial emergency in the local government has created a circumstance in which it is reasonable and necessary for the state to intercede to serve a significant and legitimate public purpose.

(ii) Any plan involving the rejection, modification, or termination of 1 or more terms and conditions of an existing collective bargaining agreement is reasonable and necessary to deal with a broad, generalized economic problem.

(iii) Any plan involving the rejection, modification, or termination of 1 or more terms and conditions of an existing collective bargaining agreement is directly related to and designed to address the financial emergency for the benefit of the public as a whole.

(iv) Any plan involving the rejection, modification, or termination of 1 or more terms and conditions of an existing collective bargaining agreement is temporary and does not target specific classes of employees.

(l) Act as sole agent of the local government in collective bargaining with employees or representatives and approve any contract or agreement.

(m) If a municipal government’s pension fund is not actuarially funded at a level of 80% or more, according to the most recent governmental accounting standards board’s applicable standards, at the time the most recent comprehensive annual financial report for the municipal government or its pension fund was due, the emergency manager may remove 1 or more of the serving trustees of the local pension board or, if the state treasurer appoints the emergency manager as the sole trustee of the local pension board, replace all the serving trustees of the local pension board. For the purpose of determining the pension fund level under this subdivision, the valuation shall exclude the net value of pension bonds or evidence of indebtedness. The annual actuarial valuation for the municipal government’s pension fund shall use the actuarial accrued liabilities and the actuarial value of assets. If a pension fund uses the aggregate actuarial cost method or a method involving a frozen accrued liability, the retirement system actuary shall use the entry age normal actuarial cost method. If the emergency manager serves as sole trustee of the local pension board, all of the following apply:

(i) The emergency manager shall assume and exercise the authority and fiduciary responsibilities of the local pension board, including to the extent applicable, setting and approval of all actuarial assumptions for pension obligations of a municipal government to the local pension fund.

(ii) The emergency manager shall fully comply with the public employee retirement system investment act, 1965 PA 314, MCL 38.1132 to 38.1140m, and section 24 of article IX of the state constitution of 1963, and any actions taken shall be consistent with the pension fund’s qualified plan status under the federal internal revenue code.

(iii) The emergency manager shall not make changes to a local pension fund without identifying the changes and the costs and benefits associated with the changes and receiving the state treasurer’s approval for the changes. If a change includes the transfer of funds from 1 pension fund to another pension fund, the valuation of the pension fund receiving the transfer must be actuarially funded at a level of 80% or more, according to the most recent governmental accounting standards board’s applicable standards, at the time the most recent comprehensive annual financial report for the municipal government was due.

(iv) The emergency manager’s assumption and exercise of the authority and fiduciary responsibilities of the local pension board shall end not later than the termination of the receivership of the municipal government as provided in this act.

(n) Consolidate or eliminate departments of the local government or transfer functions from 1 department to another and appoint, supervise, and, at his or her discretion, remove administrators, including heads of departments other than elected officials.

(o) Employ or contract for, at the expense of the local government and with the approval of the state financial authority, auditors and other technical personnel considered necessary to implement this act.

(p) Retain 1 or more persons or firms, which may be an individual or firm selected from a list approved by the state treasurer, to perform the duties of a local inspector or a local auditor as described in this subdivision. The duties of a local inspector are to assure integrity, economy, efficiency, and effectiveness in the operations of the local government by conducting meaningful and accurate investigations and forensic audits, and to detect and deter waste, fraud, and abuse. At least annually, a report of the local inspector shall be submitted to the emergency manager, the state treasurer, and the superintendent of public instruction if the local government is a school district. The duties of a local auditor are to assure that internal controls over local government operations are designed and operating effectively to mitigate risks that hamper the achievement of the emergency manager’s financial plan, assure that local government operations are effective and efficient, assure that financial information is accurate, reliable, and timely, comply with policies, regulations, and applicable laws, and assure assets are properly managed. At least annually, a report of the local auditor shall be submitted to the emergency manager, the state treasurer, and the superintendent of public instruction if the local government is a school district.

(q) An emergency manager may initiate court proceedings in Ingham county circuit court in the name of the local government to enforce compliance with any of his or her orders or any constitutional or legislative mandates, or to restrain violations of any constitutional or legislative power of his or her orders.

(r) If provided in the financial and operating plan, or otherwise with the prior written approval of the governor or his or her designee, sell, lease, convey, assign, or otherwise use or transfer the assets, liabilities, functions, or responsibilities of the local government, provided the use or transfer of assets, liabilities, functions, or responsibilities for this purpose does not endanger the health, safety, or welfare of residents of the local government or unconstitutionally impair a bond, note, security, or uncontested legal obligation of the local government.

(s) Apply for a loan from the state on behalf of the local government, subject to the conditions of the emergency municipal loan act, 1980 PA 243, MCL 141.931 to 141.942, in a sufficient amount to pay the expenses of the emergency manager and for other lawful purposes.

(t) Order, as necessary, 1 or more millage elections for the local government consistent with the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992, sections 6 and 25 through 34 of article IX of the state constitution of 1963, and any other applicable state law. A millage election ordered for a local government pursuant to this subdivision shall only be held at the general November election.

(u) Authorize the borrowing of money by the local government as provided by law.

(v) Approve or disapprove of the issuance of obligations of the local government on behalf of the local government under this subdivision. An election to approve or disapprove of the issuance of obligations of the local government pursuant to this subdivision shall only be held at the general November election.

(w) Enter into agreements with creditors or other persons or entities for the payment of existing debts, including the settlement of claims by the creditors.

(x) Enter into agreements with creditors or other persons or entities to restructure debt on terms, at rates of interest, and with security as shall be agreed among the parties, subject to approval by the state treasurer.

(y) Enter into agreements with other local governments, public bodies, or entities for the provision of services, the joint exercise of powers, or the transfer of functions and responsibilities.

(z) For municipal governments, enter into agreements with other units of municipal government to transfer property of the municipal government under 1984 PA 425, MCL 124.21 to 124.30, or as otherwise provided by law, subject to approval by the state treasurer.

(aa) Enter into agreements with 1 or more other local governments or public bodies for the consolidation of services.

(bb) For a city, village, or township, the emergency manager may recommend to the state boundary commission that the municipal government consolidate with 1 or more other municipal governments, if the emergency manager determines that consolidation would materially alleviate the financial emergency of the municipal government and would not materially and adversely affect the financial situation of the government or governments with which the municipal government in receivership is consolidated. Consolidation under this subdivision shall proceed as provided by law.

(cc) For municipal governments, with approval of the governor, disincorporate or dissolve the municipal government and assign its assets, debts, and liabilities as provided by law.

(dd) Exercise solely, for and on behalf of the local government, all other authority and responsibilities of the chief administrative officer and governing body concerning the adoption, amendment, and enforcement of ordinances or resolutions of the local government as provided in the following acts:

(i) The home rule city act, 1909 PA 279, MCL 117.1 to 117.38.

(ii) The fourth class city act, 1895 PA 215, MCL 81.1 to 113.20.

(iii) The charter township act, 1947 PA 359, MCL 42.1 to 42.34.

(iv) 1851 PA 156, MCL 46.1 to 46.32.

(v) 1966 PA 293, MCL 45.501 to 45.521.

(vi) The general law village act, 1895 PA 3, MCL 61.1 to 74.25.

(vii) The home rule village act, 1909 PA 278, MCL 78.1 to 78.28.

(viii) The revised school code, 1976 PA 451, MCL 380.1 to 380.1852.

(ix) 1979 PA 94, MCL 388.1601 to 388.1772.

(ee) Take any other action or exercise any power or authority of any officer, employee, department, board, commission, or other similar entity of the local government, whether elected or appointed, relating to the operation of the local government. The power of the emergency manager shall be superior to and supersede the power of any of the foregoing officers or entities.

(ff) Remove, replace, appoint, or confirm the appointments to any office, board, commission, authority, or other entity which is within or is a component unit of the local government.

(2) Except as otherwise provided in this act, during the pendency of the receivership, the authority of the chief administrative officer and governing body to exercise power for and on behalf of the local government under law, charter, and ordinance shall be suspended and vested in the emergency manager.

(3) Except as otherwise provided in this subsection, any contract involving a cumulative value of $50,000.00 or more is subject to competitive bidding by an emergency manager. However, if a potential contract involves a cumulative value of $50,000.00 or more, the emergency manager may submit the potential contract to the state treasurer for review and the state treasurer may authorize that the potential contract is not subject to competitive bidding.

(4) An emergency manager appointed for a city or village shall not sell or transfer a public utility furnishing light, heat, or power without the approval of a majority of the electors of the city or village voting thereon, or a greater number if the city or village charter provides, as required by section 25 of article VII of the state constitution of 1963. In addition, an emergency manager appointed for a city or village shall not utilize the assets of a public utility furnishing heat, light, or power, the finances of which are separately maintained and accounted for by the city or village, to satisfy the general obligations of the city or village.

BANKRUPTCY, CREDITORS AND YOU. TERRY BANKERT BANKRUPTCY LAWYER

NEED ATTORNEY IN FLINT FOR BANKRUPTCY? CALL BANKRUPTCY LAWYER TERRY BANKERT 810- 235-1970

DID YOU KNOW-When a bankruptcy case is filed by or against a spouse while a divorce is pending, exclusive jurisdiction over the property of the debtor spouse (the bankruptcy estate) is automatically transferred to the bankruptcy court. See In re White, 851 F2d 170, 173 (6th Cir 1988).

The bankruptcy estate is created when the bankruptcy case is filed (whether filed voluntarily by the debtor or filed involuntarily against the debtor by creditors meeting the requirements of 11 USC 303). The bankruptcy estate consists of all property of the debtor. 11 USC 541 defines property of the estate very broadly; generally, it includes all property of the debtor “wherever located and by whomever held.” See 11 USC 541 discussed in §§17.5–17.6.

When a bankruptcy is filed by (or against) a spouse while a divorce case is pending in state court, the state court’s ability to take action against property of the debtor’s estate is automatically stayed or limited by 11 USC 362.

There are some exceptions to the automatic stay pertaining to family law matters, which are found in 11 USC 362(b)(2). Counsel for both the debtor and nondebtor should immediately take appropriate actions as discussed in §17.11. The nondebtor spouse may need to file a claim as discussed in §17.29.

Other sections of special note include §17.16 (domestic support obligations (DSOs)), §17.17 (non–DSO obligations), §17.20 (preferential transfers), §17.21 (fraudulent transfers), §17.26 (power to intervene), §17.27 (pursue preferential transfers), §17.28 (sham divorces), §17.29 (proof of claim), and §17.30 (drafting divorce judgments).

For help-Flint Genesee MI Attorney / Lawyer practicing in Family Law, Divorce, Bankruptcy. 810-235-1970
http://attorneybankert.com

 

Michigan Family Law ch 17 (Hon. Marilyn J. Kelly et al eds, ICLE 7th ed 2011), at http://www.icle.org/modules/books/chapter.aspx/?lib=family&book=2011553510&chapter=17 (last updated 09/30/2011

Follow

Get every new post delivered to your Inbox.

Join 1,131 other followers