Bar BriefsBar Briefs 2017 Holiday Party - Laura Polizzi, YLS Chair, Sherman Abdo, YLS Treasurer,...

Official Publication of the Macomb County Bar AssociationVolume 36 Number 09

Bar BriefsMarch 2018

Macomb County Bar Association Office is Under Construction

Temporary Office Located on the 3rd Floor of the Macomb County Circuit Court

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Phone: (586) 468-2940Fax: (586) 468-6926 • MacombBar.org

Editor’s Note: The opinions expressed in Bar Briefs do not reflect the official position of the MCBA, nor does this publication constitute an

endorsement of the views expressed. Bar Briefs (ISSN0886-506X) is published monthly by the Macomb County Bar Association.

Copyright 2018 by the Macomb County Bar Association. Periodical class postage paid at Royal Oak MI 48043. POSTMASTER: Send

address correction to MCBA Bar Briefs, 40 North Main St., Suite 435, Mt. Clemens, MI 48043-1037.

Circuit Court CornerBy Macomb County

Circuit Court Administration

FEATURE:

Full Calendar of Events available online at Macombbar.org. Register for events today!

IN THIS ISSUE:4 From The President The Partners By Karen Trickey Pappas Macomb County Bar Association President

6 From the Executive Director MCBA and WLAM: Leaders in Law By Rick R. Troy, Macomb County Bar Association and Macomb County Bar Foundation Executive Director

8 Circuit Court Corner By 16th Circuit Court Administration

12 Some Evidence By Hon. Carl Marlinga, Macomb County Circuit Court

16 From the Family Law Committee Grandparents Rights at a Glance By Randall Chioini, Chioini Law Group PLLC and Family Law Committee Chair

18 From WLAM Macomb Region Women’s Lawyer Association of Michigan: 100 Years of Leadership, Balance and Progress By Tanya A. Grillo, Michigan Ingigent Defense Commission, Regional Manager

22 Classifieds

Bar Briefs

2017 Holiday Party - Laura Polizzi, YLS Chair, Sherman Abdo, YLS Treasurer, Karen Trickey Pappas, MCBA President,

Goran Antovski, YLS Secretary, Dawn Prokopec, President Elect, Jon Biernat, MCBA Secretary and Aaron Hall, YLS Director

Macomb County Bar Association2017-2018

Board of Directors

PresidentKaren Trickey Pappas(586) 465-8227

President ElectDawn Prokopec(313) 417-2200

SecretaryJon C. Biernat(586) 493-5377

TreasurerJoseph Golden(586) 226-2627 Immediate Past PresidentStephen Becker(586) 615-5617

Directors / Term Ending

Francesco Briguglio [2018](248) 593-9090Annemarie Lepore [2018](586) 783-3300R. Tim Kohler [2018](586) 263-1600Calvin Brown[2019] (586) 778-7778Dana Freers [2019] (586) 795-4150 Peter W. Peacock [2019] (586) 466-7605Donald Gillain [2020] (586) 481-4297 Lori Smith [2020] (248) 646-8292 Ryan Zemke [2020] (586) 612-8056 Young Lawyers Section Chair Laura Marji [2018](586) 991-1783 Women Lawyers Association of Michigan - Macomb Region Angela Medley [2018](586) 778-7778

MCBA StaffExecutive DirectorRick R. [email protected]

Associate Executive & Communications Director Dawn M. Fraylick [email protected]

Member Services DirectorKatie [email protected]

Editor in Chief - Aaron J. Hall Managing Editor - Dawn M. Prokopec

The Partners

FROM THE PRESIDENT

by Karen Trickey Pappas,Macomb County Bar Association President

MACOMBBAR.ORG 4 MARCH 2018

This month I sat down with the members of one of the longest partnerships in Macomb County and the only partners that both served as Macomb County Bar Presidents (Kathy 2005-2006 & Art 2008-2009). The partners of Garton and Vogt, P.C. I have known Kathy and Art for 20 years. They have been mentors to me both in my practice and in Bar leadership. Both Kathy and Art are excellent lawyers who care about their clients and are passionate about our Bar Association. Kathy attended Macomb Community College and Oakland University receiving her diploma in 1983. She received her J.D. from Detroit College of Law in 1986 and immediately opened her own practice. She and Art formed Garton & Vogt on September 1, 1988. Kathy started doing criminal appointments and family law and has been practicing primarily family law for the majority of her career. She has been married to her husband, Frank, for 48 years. They have two children, Dennis and Jennie, and they have two grandchildren – Claire (8) and Faye (6) Art attended American International College in Springfield, Massachusetts, completing his degree while serving in the U.S. Air Force (1971-1975). He received his Master’s Degree in Business Management

in 1978 from Central Michigan University, and received his J.D. in 1985 from Detroit College of Law. Art practices Family, Criminal, Business Litigation and Personal Injury Law. Art has been married to his wife, Renea for 39 years. They have one daughter, Julie, a golden doodle named Cutie, 2 cats Kimber and Calie, and their newest addition to their family, their grandson Andrew who is 4 months old. Kathy and Art have known each other since before law school and clerked together through law school at Currie, Stieper, Haddrill & Seyferith, formerly in Troy, MI. Their firm is a Macomb County institution and you can see how well they work together when you talk with them. Whichhistoricalfiguredoyoumost identify with? KV: I would say Queen Elizabeth I – she was a great lady who overcame a lot. She could be brutal but also very good to her friends.AG: Harry Truman – He stood up for his principles and wasn’t afraid to make a decision. He didn’t get caught up in politics. When and where are you most happiest?KV: Whenever I am with my grandkids, kids and husband.AG: Anytime I’m not in jail.KV: Anytime he is with me.

AG: Yes, and the very rare occasion when a client actually thanks you for a job well done. Whoisyourherooffiction?KV: Anna from Frozen. The heroine of the story runs away when there was trouble and Anna faced the danger and saved the day. AG: Superman. He always sought truth, justice and the American way. Who are your heroes in real life?KV: Besides Art? My Dad. He was a very hard working man who overcame a lot of hardships and always made the best of things and was always helping other people. AG: My Mother. She worked very hard as a single mother of three boys and she never took a hand out. What is your favorite place in the world?KV: Home with my family, followed only by our office.AG: Home and the office What is your favorite MCBA moment?KV: My first favorite moment was when we did the 100th Anniversary celebration and gave the award to Ken Sanborn. My second favorite was my Installation at Andiamo.AG: The 100th Anniversary. Judge Sanborn was so deserving of the

award and it was great that Rick was able to keep the ceremony secret and we were able to fly in Mr. Radulovich for the event. What is the best part about being a lawyer? KV: When a client comes back after a difficult divorce and says how their life has improved due to the work you did for them. I was actually told recently that there is a ladies club that are all former clients of mine that all get together socially! AG: When a client comes back and thanks you for what you did for them and agrees that what you advised them to do was the right thing, even though they may not have agreed at the time. I recommended a high intensity treatment program for a client who I represented on his fourth drunk driving charge. He came to me a year later to tell me how helpful the program was. Whatisthemostdifficultpartabout being a lawyer?AG: Scheduling.KV: I agree. Scheduling. Who are your mentors?KV: Art and Max McCulloughAG: I can’t say that they were mentors, but, two individuals that I really admire as Napoleon Hill and Dale Carnegie. Who are your MCBA mentors?AG: Steve Rabaut, Brian Legghio, Felice IafrateKV: Same for me, as well as Kim Cahill Who do you see as an up and coming Young Lawyer?KV: Shaun Mansour & Angela Medley

AG: Shaun Mansour What is something interesting that most people do not know about you?KV: When I was a child I lived in a cabin of logs and mud, no plumbing. Elementary school was a two room schoolhouse, grades 1-8, again no plumbing. I helped to grow tobacco, milked cows and churned butter. It was a totally different way of life! I also love to scuba dive and I sky dived in Hawaii and paraglided in the Grand Tetons.AG: I sit on the Board of Directors for the Macomb Humane Society. What would you be if you weren’t a lawyer?KV: Psychologist or a gardener.AG: Builder or a charity organizer. Why do you love the MCBA?KV: The comradery. The MCBA truly helps attorneys, especially young attorneys. AG: MCBA is the closest knit local bar association. We are also very fortunate to have Rick Troy as our Executive Director. Shaun Mansour: Shaun is a life-long Macomb County resident and member of the Macomb County Bar Association. Shaun received his undergraduate degree at Wayne State University in 2010 and his JD, also at Wayne State University in 2013. After law school Shaun worked for a small boutique Plaintiff’s firm in Birmingham and a year and a half ago opened his own firm, The Law Offices of Shaun A. Mansour, in Clinton Township. He practices Civil Litigation and Criminal Defense.

Angela Medley: Angela received her Associate’s and Bachelor’s Degree from Baker College in Clinton Township. She took a few year break and worked full time and then attended and graduated from U of D Mercy, receiving her J.D. in 2014. She was the 2013 recipeint of the MCBF Trustee Law School Scholarship. Angela worked as an Assistant Prosecutor in the Plymouth District Court for several months and returned to Macomb County to assist with coverage and was a substitute teacher at L’Anse Creuse High School until she began working at Femminineo Attorneys. She worked there for 2 years practicing family and criminal defense law. She now works for Ihrie O’Brien and handles family law and is the Criminal Prosecutor for East Pointe, St. Clair Shores and occasionally Grosse Pointe Farms. She is also the current President of the Women Lawyer’s Association of Michigan - Macomb Region. Angela has three children Devin, who has graduated from high school and is working full-time, Stephanie who is working on her Masters at Western Michigan and will be a Licensed Social Worker and Shannon who is currently in her 1st year of law school at U of D.

Hopefully everyone was able to get out and meet Judge Sandra Harrison at the Young Lawyer Sponsored event! Part 3 of the Family Law Committee’s Series on the Military Aspects of Family Law is coming up on March 19th and the Women Lawyer’s Cocktails for a Cause is on March 21st at Freddy’s in Clinton Township.


FROM THE PRESIDENT

MCBA and WLAM: Leaders in Law

FROM THE EXECUTIVE DIRECTOR

by Rick R. Troy, Executive Director of the Macomb County Bar Association and

Macomb County Bar Foundation

Dear Members,

The Women Lawyers Association of Michigan’s Centennial Celebration will be held on April 27 at the Colony Club in Detroit. The theme, “Looking Back, Moving Forward” perfectly captures the significance of this historical event.

As I learned about this event I recalled the privilege of having conversations with some of Macomb County’s finest representatives of the profession of law. I will never forget listening to the Honorable Mary McDevitt tell stories of what it was like to practice law when she started out in 1955. Our oldest and undoubtedly, the proudest women member of the MCBA, Florence Schoenherr Cahill once shared a story about how she, Judge McDevitt and Mildred Vlaich took turns meeting as WLAM Macomb in each others’ cars. Some went out to the bar after, and some went home to families after the meeting.

It was 1987 when the Honorable Justine Orris was sworn in as the first female President of

the Macomb County Bar Association. In 1988 President Orris requested that the Long-Range Planning Committee explore and identify sources of non-dues income to support the activities of the Bar Association. The committee recommended that the MCBA create a non-profit corporation that could raise funds for

charitable and educational purposes. The result is today’s Macomb County Bar Foundation that hosts educational programs that reach literally thousands of youth with the message of law and civics. Judge Orris

paved the way for other women

leaders to become President of the MCBA; Lori Finazzo, Wendy Jansen, Kimberly Cahill, Kathy Vogt, Gail Pamukov, Dana Warnez, Julie Gatti and today, Karen Trickey Pappas. Later this year the MCBA will swear in Dawn Prokopec as its 90th President.

As a father of three daughters, I am proud to be able to say that half of my career as your Executive Director has been guided by the leadership of women.


Lori Smith, MCBF President, Dana Warnez, MCBA Past President, Florence Schoenherr-Warnez and Julie Gatti, MCBA Past President


FROM THE EXECUTIVE DIRECTORAs a leader in the legal profession, the MCBA has had many firsts, including being the first voluntary bar association in Michigan to provide a position of Director on its Board to the President of WLAM – Macomb Region.

Article IV of the MCBA ByLaws reads in part: “The Board of Directors shall consist of nine regular members of the association, (five Officers), Chair of the Young Lawyers Section and the President of the Macomb Region of the Woman Lawyers Association of Michigan.”

The members of the Macomb County Bar Association, the

Trustees of the Foundation, and the public at large benefit from the many women that answer the call to serve as leaders of the legal profession. This year, seven of the sixteen members of the MCBA Board of Directors are women, and ten of the eighteen members of the MCBF Board of Directors are women.

Mark April 27, 2018 on your calendar!

MORE SAVE THE DATES: (for details visit MacombBar.org)

May 2 - MCBF Annual Meeting of Trustees at Jimmy John’s Baseball Field

May 3 - MCBA YLS Bowling

for Charity at The Rec Bowl (a fun event that has 8 teams competing against each other to raise money for their favorite charity. Come on out and enjoy the festivities)

May 4 - MCBF Law Day Ceremony (“Separation of Powers” is this year’s theme that is captured by hundreds of Macomb County elementary students in posters and essays. The Ceremony takes place in the County Board of Commissioner’s meeting room)

May 17 - MCBA Annual Meeting at The Emerald Theater

June 18 - MCBA Annual Golf Outing at Greystone Golf Club

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Circuit Court Corner

CIRCUIT COURT CORNER

by Macomb County Circuit Court Administration

Numerous relocations will be taking place beginning the week of March 19, due to our ongoing renovation project. The 5th floor of the County Courthouse will be reopening, and the 4th floor will be temporarily closing down. With the 5th floor reopening, Judge Jennifer Faunce will be returning to her permanent Courtroom on the 5th Floor. Judge Joseph Toia will be moving to the 6th floor. Judge Carl Marlinga, Judge James Maceroni, and Judge Rachel Rancilio will be moving to the 5th floor. Judge Michael Servitto

will be moving to the 3rd floor. In addition to moving nearly half of the Circuit Court Bench, the County Clerk’s Office and the Macomb County PPO Office will be moving into their permanent homes on the 1st floor of the County Courthouse. Last but not least, the Macomb County Bar Association will be relocating from the 4th Floor of the County Courthouse to temporary space on the 3rd Floor of the Courthouse. We appreciate your patience and understanding during this herculean effort.


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Some Evidence

SOME EVIDENCE

Hon. Carl Marlinga, Macomb County Circuit Court Judge

In the tenth episode of the third season of the greatest dramatic television series in the history of the world (Breaking Bad), chemistry teacher, turned drug dealer, Walter White obsesses throughout the entire episode about a single fly that has invaded his laboratory space. There is no dialogue to distract White from his single-minded quest to track down and obliterate the tiny, buzzing, annoying, and contaminating beast. Some viewers think poorly of this episode, opining that it is the only weak story in an otherwise brilliant series. I do not adopt that point of view. Rather, I see this episode as the essential reveal of the psyche of the gifted but very twisted protagonist. Following Walter White’s lifelong series of failures, setbacks, and disappointments, his maniacal quest to kill the fly shows that he will never again yield to any force, no matter how big or how

small, that attempts in any way to intrude on his new found path to absolute perfection as the

best crystal meth cooker on the planet. This month’s article is, in part, inspired by that episode. It runs the risk of being too pedestrian, needlessly repetitious of prior articles, and lacking in content. (But, then again, it might be judged indistinguishable from all the other articles I have written.)

Although being aware of the risk, I offer the article anyway because of the insight that I hope it brings to the fundamental, oft-debated issue of hearsay. At this point, I will try to hold the reader’s attention by revealing the question that sparked the writing of this article, and which I will answer at the conclusion. A lawyer asked my opinion on the question of whether a hearsay objection could prevent a witness from testifying about the contents of a video-tape that had been accidentally destroyed sometime after the witness viewed it. The witness was not present when the video-tape was made, so the witness’s only knowledge is what he saw and heard on the video-tape. To answer this question, it is necessary to grasp the fundamentals of what we mean by hearsay; but trying to get to a clean, clear, uncontaminated view of hearsay is hampered by something akin to Walter


White’s fly in his meth lab. The “fly” in the standard analysis of hearsay is the ambiguity in the word statement as that word is defined in MRE 801. The rule’s actual definition, at MRE 801(a), narrows the definition of “statement” to only those statements which are “oral or written ASSERTIONS or …nonverbal conduct of a person, if it is intended by the person as an ASSERTION.” [Excessive emphasis added.] For the mathematically minded, think of “statement” as a poorly named subset of the universe of all statements. Not every statement, therefore, is a “statement” for hearsay analysis purposes. Only those statements that affirmatively assert that something is true, or that something happened or did not happen, are “statements” for hearsay rule purposes. The contaminating ambiguity has this effect: If a person testifying at a trial or hearing starts to talk about what he or she heard someone say, or starts to recount what someone else has written, the immediate knee-jerk response is to think that the witness is necessarily going to offer hearsay testimony. After all, this appears to be an offer of a statement from an out-of-court declarant who is not under oath and who cannot be cross-examined. The “fly” or flaw in this thinking is that, yes, the witness is about to testify about what someone else said or wrote; but that does not mean that what was said or written was intended by the out-of-court declarant as an assertion. The statement might not be a statement for MRE 801(a) purposes. Example: “The doctor said that

I was sick.” That sentence is hardball hearsay because the out-of-court declarant (the doctor) is quoted as saying that a fact or condition is true. The statement is an assertion of fact, and, therefore it meets the definition of hearsay. Another example: “The doctor said, ‘take two aspirin and call me in the morning’.” That sentence is not hearsay because it is not an assertion. It is not a statement of fact. It is not capable of being true or false. It is simply quoting the doctor giving a directive – which can never be hearsay because a directive, instruction, advice, command, question, exclamation, wish, recommendation, offer, acceptance, agreement, threat, expletive and a myriad of other human utterances do not have the quality of being an assertion. There is nothing true or false about the statement, “take two aspirin and call me in the morning.” Granted, this second example does contain sufficient information to cause the fact-finder to infer that the person was, indeed, sick; but that ancillary effect of the non-hearsay statement is not sufficient to ban it from coming in as evidence of the advice that the patient was given. I want to assure the reader that this is not a novel or idiosyncratic view of hearsay. The absolute necessity that an out-of-court statement be an assertion is explained in detail in McCormick on Evidence (4th ed.) section 250, pp 106-117 and Weinstein on Evidence, section 801(a)[01], pp 801-860. It is also the subject of a scholarly article by the Honorable William Giovan (retired Wayne County

Chief Circuit Court Judge) in the November, 1984, Michigan Bar Journal (at 1064). Case authorities explicating the matter include People v Jones, 228 Mich App 191, 579 NW2d 82 (1998) and People v Davis, 139 Mich App 811, 363 NW2d 35 (1984). On the federal level the issue is addressed in United States v Long, 905 F.2d 1572, 1579-80 (D.C. Cir. 1990) and United States v Lewis, 902 F.2d 1176, 1179 (1990). I know it takes a lot of re-thinking to get this right. I recently acted as the judge in a mock trial for the Wayne State University Law School’s moot court team as they prepared for the national moot court competition. They had previously participated in numerous practice rounds with other volunteer lawyers acting as judge. The fact scenario for the trial was that a grain inspector was electrocuted and killed when a pole that he was using to sample grain in a railway car came into contact with a low-hanging electrical wire. A key proposed exhibit was a set of written instructions from the grain elevator company directing inspectors to use caution when taking grain samples while standing on the top of the railway cars. When this document was offered at trial, plaintiff’s lawyers objected to its admission on several grounds, including hearsay. I summarily denied the hearsay objection, and then analyzed the more substantive objections going to authentication of the document and whether the deceased actually received or had notice of the document. After the trial, the plaintiff’s team apologized

SOME EVIDENCE


for raising the non-meritorious hearsay objection, but they felt that they had to do it because some judges in previous practice trials had seriously considered the question. Therein, lies the problem. Since so many lawyers do not have a good grasp of the hearsay rule, otherwise frivolous objections will still be offered to non-hearsay material, simply because the objecting party has no idea of what his or her opponent (or the judge) really knows. This also raises an ethical question. Under MRPC 3.3 a lawyer has an obligation to be candid with the court and not advance a position known by the lawyer to be unsupported by law or fact. It is likely that a lawyer could easily get away with misleading opposing counsel and the court by making a hearsay objection when there really is no hearsay. Suffice it to say, no matter how tempting or how easy it might be, you cannot do it. Your ethical obligations must strictly govern your conduct, especially in an area where you know you will not get caught. Now for the question of whether a witness can testify to what he or she saw and heard on a video tape that is now lost. The answer is, of course, the witness can testify. There is no hearsay in recounting what the witness saw, and, because the video tape will most likely not contain any assertions of fact, most, if not all, of the verbal stuff will come in also. To put this into context, let’s explore a scenario in which such testimony might be offered. Assume that we have a criminal prosecution for murder. The missing video tape was taken by Eddie, a former friend of the

defendant. Detective McBride interviewed Eddie before Eddie’s untimely demise. Although McBride suspects that the defendant was a factor in Eddie’s death, there is no hard evidence to back up that suspicion. During the interview, Eddie told the detective that the defendant was the shooter and then, amazingly, showed the detective his cell phone on which he, Eddie, video-taped the murder. Eddie said that he thought the defendant would enjoy seeing the execution on tape and that Eddie was hoping that his status in the drug gang would be enhanced the making of this documentary. Detective McBride viewed the tape, took the phone, and held it as evidence in the police department’s evidence room. Prior to trial, the police evidence room had a fire, and all evidence held in the room, including Eddie’s cell phone was incinerated. At trial the prosecutor now attempts to question detective McBride about what he saw on the tape. The defense objects on hearsay grounds. The defense also objects on Sixth Amendment grounds saying that under Crawford v Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the defendant would be denied his right of meaningful cross-examination. The correct ruling from the trial judge would be to allow detective McBride to testify to what he saw and heard, being watchful, however, to make sure that testimony to things heard did not involve assertions. The decision to admit testimony as to what the

detective saw on the tape is a no-brainer – at least on hearsay grounds. There might be a question as to authenticity of the tape and whether it accurately depicts what actually occurred on the date, time, and place of the crime. These questions, however, are resolved by the judge in a hearing outside the presence of the jury pursuant to MRE 104. In such a hearing the rules of evidence do not apply. The question of whether the video tape is authentic under MRE 901 is then simply a matter of the judge deciding, using the methodology of MRE 104, whether the judge is “satisfied” that “the matter in question is what its proponent claims.” In making that determination the judge can accept Detective McBride’s testimony of the hearsay information gathered by McBride during his interview with Eddie. The judge can also take into account, under MRE 901(b)(4) the distinctive characteristics of the content of the tape which appear to show a shooting by the defendant of the victim at the time and place indicated in the charging documents. Detective McBride can also testify that the scene depicted in the tape conformed in all respects to the scene that he personally viewed in the course of his investigation. The best evidence of the crime, of course, would be the video tape itself, but since that is no longer available, Detective McBride’s testimony as to its contents is admissible under MRE 1004. With respect to what Detective McBride heard on the tape, most of what was said would likely be admissible. Since

SOME EVIDENCE


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this was a tape of a murder as it happened, it is extremely doubtful that the recording would have picked up anything that was an assertion of fact. There would likely have been threats, taunts, expressions of vengeance, and utterances of murderous intent. Since the source of such statements would have been the defendant, such statements would still be admissible under MRE 801(d)(2) even if there were some hearsay. An MRE 801(d)(2) analysis, however, is not necessary since threats, taunts and the like are clearly and emphatically not hearsay. There may also have been expressions of fear from the decedent or encouragement from defendant’s associates in the gang. None of this would be hearsay. Had the video-tape survived the fire, it would have

been admissible pursuant to the case authorities cited above. Also, in Strach v St. John Hospital Corporation, 160 Mich App 251, 408 NW2d 441 (1987), the Court of Appeals held that a day in the life video of a person who had been seriously injured was admissible over defendant’s hearsay objection. The court held that there is a difference between out-of-court assertions, which are hearsay, and out-of-court statements that are not intended as assertions. In an odd way, the day in the life videos allowed as evidence in such cases also would stand as authority for the moment of death videos at issue in this hypothetical case. And, again, since the video itself would have been admissible, the detective’s testimony as to what was contained in the lost video would be admissible under MRE

1004. As to the Crawford v Washington objection, there would be none. Under Crawford and Michigan v Bryant, 562 U.S. 344, 131 S. Ct. 1143, 165 L. E. 2d 93 (2011), a Sixth Amendment violation of the right of confrontation only occurs if there is hearsay testimony and it is testimonial in nature. In this hypothetical, there is no hearsay. Further, any statement caught on tape could not possibly be considered testimonial in nature since such a statement would not have been made with the intent or expectation that it would be used at trial. Walter White’s obsession with the fly ended when he nailed the perfidious beast. Alas, I envy him.

SOME EVIDENCE


Grandparent Rights at a Glance

FROM THE FAMILY LAW COMMITTEE

by Randall J. Chioini, Chioini Group PLLC and Family Law Committee Chair

At least a few times in our careers as family law practitioners we will come across a grandparent who is desperate and has no one else to turn to. It is likely that your grandparent client’s ability to visit his or her grandchildren has been cut off by the child’s parents and they are desperately seeking your advice and assistance. Many times the script in these cases read the same: “I took care of my grandchild until my child got his or her act together and now, I am not allowed to see my grandchild!”…..“what are my rights?”…. “what do I do?”

Fortunately for our clients, Michigan is one of the only states to have a specific statute for grandparenting time within its Child Custody

Act. With that said, however, Michigan also provides for very limited circumstances where grandparenting time would actually be granted. It

has become even more limited with the additional guidance from the recent holding in Geering v. King and Robinson, 320 Mich. App. 182 (2017). This article seeks to provide a cursory overview of the current

state of grandparenting rights in Michigan in the event your client has exhausted all outlets for a solution and must attempt to enforce their rights under the

Child Custody Act. By background,

grandparents are statutorily limited in establishing standing to bring a complaint. Circumstances that would provide a grandparent with standing include: (a) an action for divorce, separate maintenance, or annulment involving the child’s parents is pending before the court;(b) the child’s parents are divorced, separated under a judgment of separate maintenance, or have had their marriage annulled;

(c) the child’s parent who is a child of

the grandparents is deceased;(d) the child’s parents have never been married, they are not residing in the same household, and paternity has been established;

(e) legal custody of the child has been given to a person other than the child’s parent or the child is placed outside of and does not reside in the home of a parent; or(f) in the year preceding the commencement of the action for grandparenting time, the grandparent provided an established custodial environment for the child, whether or not the grandparent had custody under a court order. MCL 722.27b(1). Without standing, the

grandparent’s complaint will quickly be dismissed. After standing has been established, it is an uphill battle. There is a legal presumption that the decision of ‘fit’ parents to deny grandparenting time does not create a substantial risk of harm to a child’s mental, physical, or emotional health.

In order to be awarded any grandparenting time, you must first rebut the legal presumption by a preponderance of evidence and then argue that grandparenting time is in the best interests of the child. Now, what makes parents’ fit? A recent court of appeals case tackled this issue, Geering v King and Robinson, 320 Mich App 182 (2017). Here, the parents, Jarret Geering and Elizabeth King, have four children together. The parties had a very litigious and contentious custody battle for over 4 years. There were concerns reported to Child Protective Services (CPS) throughout. A

neglect case was initiated but ultimately dismissed. The judgment of divorce ordered joint legal and physical custody. After the judgment was entered, King’s father (the minor children’s grandfather), filed a successful motion to intervene in the divorce proceeding and a motion for grandparenting time. Grandfather Martin Robinson argued that he was purposefully being excluded from the children’s lives. Both Geering and King drafted affidavits to exclude Robinson from the children’s lives. The trial court granted Robinson’s motion holding that Geering and King were unfit parents and that grandparenting time was in the best interests of the children. The court of appeals in Geering reversed the lower court’s finding. The panel opined that Geering and King may not be perfect parents, but no parent is perfect. However, parents have a fundamental constitutional right to rear their children as they see fit. Zawilanski v Marshall,317 Mich App 43 (2016) . No one can be deprived that constitutional right just because a third party disagrees with the decision. In Troxel v Granville, 530 US 57(2000), the court defined a ‘fit’ parent as a parent who “adequately cares for his or her children”. The Geering panel decided to read Troxel court’s definition of a fit parent into MCL 722.27b.

The Troxel definition of a fit parent is very broad. Most parents would qualify as ‘adequately’ caring for his or her

child. Since the Geering case, you should be wary of pursuing grandparenting time cases. More specifically, when you have a potential client come to you and ask for grandparenting time, it would be a good idea to discuss this definition with them. If the potential client is still interested in pursuing a claim, you should address the issues of standing. It is only in limited circumstances that a potential client has standing in these cases. After there is standing, you need to discuss the best interests’ consideration the court will analyze. Then after all of that, you can advise your client that they may have a valid claim to pursue their grandparenting rights.

While grandparenting time is provided for in the Michigan Child Custody Act, a grandparenting case is never a slam-dunk case, however, as practitioners we must be cognizant that there always is a time and place for the proverbial hail mary pass, especially when it comes to protecting the best interest of the children, and filing a grandparents right action can sometimes be exactly that. Additionally, even when the facts are not weighted in your client’s favor an excellent advocate who understands the ins and outs of family court may still be successful in negotiating and securing grandparenting rights for their clients.

FROM THE FAMILY LAW COMMITTEE



Women’s Lawyers Association of Michigan: 100 Years of Balance, Leadership

and Progress

FROM THE WOMEN LAWYER’S ASSOCIATION OF MICHIGAN

By Tanya A. Grillo, Michigan Indigent Defense Commission, Regional Manager

The Women Lawyers Association of Michigan (WLAM) was founded by 5 women attorneys on March 24, 1919, before women won the right to vote. These women, who were the self-proclaimed “ardent Portias of Detroit,” cultivated a female legal community with an initial mission “to advance the interest of women members of the legal profession and to promote a fraternal spirit among lawyers.” One hundred years later, our mission of “[s]triving to secure the full and equal participation of women in the legal profession in furtherance of a just society” continues to carry onward the spirt of the of community, fellowship, and equality. In way of history, the early days of WLAM was more akin to a social professional networking group. Meetings focused on the development of strong professional ties between women lawyers, mentoring, and providing continued legal education in areas such as labor restrictions against women. By 1975, the expanding statewide WLAM membership, lead to a restructuring of the organization

into its current hierarchy: one state umbrella association with several smaller regional chapters throughout the state. WLAM – Macomb has been in

existence since the 80’s and our first president was Margaret R. DeMuynck who served from 1980 – 1982. Since then there have been 24 women who have served as the head of the Macomb regional chapter. We are leaders in our communities, judges, heads of organizations, and zealous advocates for our clients. On April 27, 2018, WLAM will be celebrating its Centennial Annual Conference and we would be remise not to stop and reflect on where women lawyers

have been, how far we have come, and how much more we can do together. Did you know that the Macomb County Bar Association (MCBA) was the first

bar association in Michigan to provide a Director position on the Board of Directors for the regional WLAM President? In fact, this position is embedded in the MCBA Bylaws. The MCBA was formally established in 1906; however, women were not added as part of the frame work until 1947 when Mildred Vlaich, became the first woman member of the Macomb County Bar Association. She was also the first woman to serve as an assistant prosecutor in Macomb County, serving from 1949 to 1952. In 1957, Mary E.

McDevitt became the first female judge in the county and in 1982, Kathleen Jansen was elected to the Macomb County Probate bench. In 1987, Justine Ann Orris became the first woman elected President of the Macomb County Bar Association. Women lawyers have come a long way since 1919, and here in Macomb County, we make up 25% of the membership of the MCBA. As of December 1, 2017, there are 1180 members of the MCBA, 283 female attorneys


and WLAM – Macomb has 59 members. According to the National Association of Women Judges, in 2016, 31% of judges in Michigan are women. In addition, of the 32 Macomb County judicial seats, 16 are proudly held by women. Judge Tracey Yokich, WLAM -Macomb member, was admitted to the State Bar of Michigan in 1985 and has been a member of the judiciary since 2003. When considering how far women have come in the last 100 years, Judge Yokich considers Macomb County’s history and how that has personally impacted her. “The Hon. Mary E. McDevitt and the Hon. Kathleen Jansen were an inspiration - smart, tough, and committed to public service. They had literally kicked the door open in Macomb County which so many of us have been fortunate to walk through. It is my fondest hope that more young, capable women will follow in our footsteps.” Looking toward future elections cycles, Judge Yokich believes that better pooling of resources in support of all women candidates is needed. “We need to mentor young lawyers, encourage paths that lead to public service, and financially support their efforts to obtain elective office.” Judge Yokich has devoted her career to public service having served as a State Representative, Macomb County Prosecutor, and Judge Advocate General for the Air National Guard in addition to her time on the 16th Circuit Court bench. “One thing that my years of service in elective office has taught me is that women bring a different

perspective to the challenges of service in public office. It is not a better perspective, but generally our different perspective which promotes problem solving and leadership excellence in public service.” The Michigan Judges Association, which represents all Circuit and Court of Appeals judges in Michigan, is in a unique position to promote and foster excellence in the judiciary. As the newly appointed President of the Michigan Judges Association, one area of particular concern for Judge Yokich is addressing the secondary trauma that is inflicted on jurists (and practitioners) from repeatedly handling difficult and life changing litigation ranging from child abuse to homicide. “Recognizing the effect our caseload can have on a judge [or lawyer] and how it can impact his/her mental health is the first step toward formulating specific recommendations to combat this trauma. These are difficult times for public servants. The national dialogue is harsh and at times hateful. As a profession, I believe we all have a responsibility to promote civility, both in and out of the courtroom.” Judge Yokich, has always been a strong advocate for change in our judicial system. “In an effort to restore some level of courtesy and respect to human discourse, the Michigan Judges Association hopes to persuade the Michigan Legislature to create significant penalties for those who threaten, harass, or assault a judge, their family, or staff.” As Judge Yokich provides leadership in reforming the judiciary, women are increasing

their influence in criminal law. Out of sixty one assistant prosecuting attorneys in Macomb County, 26 are female and 7 are unit chiefs – including the Chief Trial Attorney, and a WLAM- Macomb Member, Jean Cloud. Cloud has been a licensed attorney for 23 years and has been part of the Macomb County Prosecutors Office for 18 years. Prior to working at the MCPO, Cloud worked in several areas of law including insurance defense, personal injury, custody, divorce probate, and criminal defense. The last 10 years of her career has been devoted to the Criminal Sexual Conduct unit and serving its chief for 7 years. Looking back on her career, Cloud recalls having planned on going into tax law; however, when she started in private practice, she realized that prosecution was where her heart was. “As an assistant prosecutor, when I lay my head on the pillow at night, I really feel that I have done something good for society by making our community safer, and that feeling is worth it all.” She continues on stating that “[o]ne of the challenges is separating yourself emotionally and compartmentalizing everything so that you can be an effective assistant prosecutor and present your case.” A male colleague of Cloud said this of the Chief Trial Attorney: “Jean Cloud has spent 10 years prosecuting child sexual predators and now is the primary prosecutor on child homicides. When it comes to being tough I’d put her up against any man. More importantly when it comes to knowledge of the law and



relentless preparedness in the courtroom she is not only a role model for women – she is role model for each and every attorney in the bar.” How are female defense attorneys looked at by clients? Does the public take them seriously? In 1980 women made up 26 percent of attorneys employed as legal-aid and public defense attorneys; corresponding figures show that number grew to 45 percent by 2000. Jenna M. Bommarito, a WLAM- Macomb member, shared her thoughts. “I’ve had to prove myself in the past to both male colleagues and clients. We [women] have to work much harder to prove ourselves, then men do. Not to mention the issues of being judged by how we dress. If we wear a pant suit, we are too manly, if we wear a skirt suit we can be looked at as inappropriate and trying to get ahead in the game.” Bommarito has been in practice for six years with 80% of her solo practice dedicated to criminal defense. In addition to retained clients, Bommarito is on court appointed lists throughout Macomb County. Bommarito stated that she has always been drawn to areas of criminal law. “I began working with a criminal defense attorney during my first year in law school, we handled state and federal criminal defense. I was immediately hooked to all things criminal defense. I enjoyed the fast-paced nature, and analyzing cases and facts. The first trial I was involved in was a first degree murder trial, this was during my second year of law school. I learned so much

during that trial and really started to develop my own ideas and opinions about the justice system and my role as an incoming defense attorney.” “[While] the most rewarding part is helping people when they are at their lowest, and seeing them succeed and learn from the system, the most difficult part is having to justify doing what I do.” Bommarito further explained, “people often ask “how do you represent those people?” That answer to me is easy, but sometimes not so easy to those not in the legal community. To me, my job is to protect the constitution.” Regardless of the type of law you practice, we all struggle with the work/life balance. Both Cloud and Bommarito agree that time management, experience, and planning are the all necessary components. So how do women in the law deal with the question ‘can you have it all?’ The answer is yes, but how you define ‘everything’ is solely up to you. Cloud shares this advice, “trying to be “superwoman” is difficult and overrated. Reaching out to friends and family is imperative if you have over-extended yourself or just need extra help due to the demands of your career and family obligations.” As a solo practitioner, Bommarito offers this advice, “you have to run your business with processes, as if you’re running a large company. This will help you free up your time from doing administrative and “business work,” and be able to make more time for work that brings you an income, and having time for yourself and your family.”

Woman continue to make strides being leaders in the law. WLAM-Macomb member, Judge Jennifer Faunce was a Macomb County Prosecutor for seven years before being elected State Representative. Then Representative Faunce chaired the House Criminal Law Committee, which reviewed all criminal law and procedure legislation. Judge Faunce was the recipient of the 2017 Mary S. Coleman Award. This award goes to a current or former member of the Michigan federal, state, or tribal judiciary whose leadership, talent, and significant contributions to women provide a role model for women in the profession and women in general. When Judge Faunce accepted this award, she so graciously stated, “Isn’t it ironic? With the expectations and duties professional women are expected to fulfill in our society, there’s no question we have by far the least amount of discretionary time at our disposal. We are busy all the hours God sends providing for clients and family and our elderly. We are not only the caretakers of our legal clientele; we are the caregivers for the families we have worked so hard to establish. It’s truly enough for two separate lifetimes. But the first volunteers I’ve received at every point in my career? Women. The people who’ve given the most of themselves, both with their time and finances? Women. The people who’ve created opportunity for me, and sacrificed for me, and supported me in every instance? Women. Overwhelmingly, the women.”



A WLAM membership offers many different opportunities regardless of whether you are a prosecutor, an attorney, or a judge. Ms. Cloud praises WLAM for providing women in the legal profession the support, advice and encouragement that is lacking in so many other areas of professional roles. “Changes such as these in our profession have allowed us the strength and fortitude to succeed on every level. I am very proud to be a part of the WLAM and the change that it represents for women.” Ms. Bommarito seconds that sentiment and adds, “WLAM Macomb is one of the best networking groups I am involved in.” She further explained that she has gained a great referral network and it has been a place where lifelong friends have been

made. “I always know I can call anyone in the WLAM network for a question, referral, or just to bounce ideas around. This is especially beneficial to me as a solo practitioner.” While we can look back at all we have accomplished in the last 100 years, we must move forward together in our quest for equality. As we continue to strive to diversify our organization, we seek to include men as part of our solution for equality. If you are not already a member of Women Lawyers Association of Michigan, now is the time to join! Come celebrate the past 100 years at our 100th Annual Meeting and Gala on Friday, April 27th at the Colony Club in Detroit. Tickets are on sale now and going fast. Please contact us for more information at [email protected]. We look forward to you joining us as we set

our sights on the next 100 years!

Footnotes:

1 https://www.womenlawyers.org/about-wlam/history/2 https://www.womenlawyers.org/about-wlam/history/3 https://www.womenlawyers.org/about-wlam/history/ 4 http://www.macombbar.org/?page=4265 https://www.nawj.org/statistics/2016-us-state-court-women-judges6 Emotional Trials: Moral Dilemmas of Women Criminal Defense Attorneys, 2004 by Cynthia Siemsen

For a Full List of WLAM-Macomb Past Presidents please visit macombbar.org

Upcoming WLAM Events2018AffinityCharityChallenge

JoinWLAM-Macomb’sownJudgeRachelRancilioforthe2018AffinityCharityChallenge on March 8th at Otis Supply in Ferndale. Judge Rancilio’s chosen charity is Friends of Foster Kids! Tickets are on sale now! Contact Angela Medley at (586) 778-7778 or email [email protected] for more information.

5th Annual Cocktails for a CauseWLAM- Macomb’s 5th Annual Cocktails for a Cause will be held on March 21, 2018 at Freddy’s in Clinton Twp.at 5pm. This year, all proceeds will be donated to Families Exploring Down Syndrome (F.E.D.S.). Tickets are on sale now and sponsorship opportunities are available! Contact Angela Medley at (586) 778-7778 or email [email protected] or Tanya Grillo at (586) 638-6546 or email at [email protected] for more information.

CLASSIFIEDS

MACOMBBAR.ORG 22

OFFICE SPACE

EXECUTIVE / PROFESSIONAL OFFICE SPACE. Individual offices and the potential for as much as 8,000 sq. ft. of contiguous space. Professional decorated common space includes reception, kitchen, and conference rooms. One site basement storage available. Exterior is colonial design with split fieldstone accents. 24825 Little Mack Ave. St. Clair Shores, at 10 Mile. Call Bob Garvey (586) 779-7810.

Professional Office Space at 21 Mile & Garfield. Sublease includes exclusive use of two private offices, Reception Desk and two work stations – all furnished. Shared use of conference room, files area, kitchen, restroom and full basement. Donn Bohde 586-201-8144 Refer to http://www.loopnet.com/Listing/19638367/46869-Garfield-Road-Macomb-MI/

MT. CLEMENS - Professional Office Space Available, 2 offices available, mail drop location, conference room, close to Circuit Court with ample parking available. Reasonable Rates. Call Steve at (586) 615-5617 or email [email protected]

DOWNTOWN MT. CLEMENS - Prime location for access to Macomb County Circuit Court. Furnished office. To arrange a viewing, call Dawn at (586) 463-0300.

DOWNTOWN MT. CLEMENS - 2 Completely furnished offices and secretarial area in the Town Square Building. Shared use of conference room and kitchen. Please call Susan at (586) 493-6833 Ext. 202

PREMIUM MT. CLEMENS - Office space on Main Street for rent. Walking distance to County Buildings with ample

parking. 1-5 offices available, conference room. Gross lease. Contact Lorraine at (586) 469-5050

DOWNTOWN MOUNT CLEMENS Office for rent. Free parking! Walking Distance to Courts! Call Jon Biernat at 586-322-6399

REFERRALS

KEVIN M. KAIN of the Law Firm Levine Benjamin has obtained over 1,500 workers compensation settlements for disabled workers over the last 20 years. Will pay referral fee and provide status reports. Call Kevin M. Kain at 1-800-675-0613.

SOCIAL SECURITY and WORKERS COMPENSATION - Casazza Law Offices - 140 years plus of combined experience with Social Security Disability and Workers Compensation claims. Offices in Southfield and Mt. Clemens. Referral Fees. Call Gene Casazza at (586) 468-4400 or email [email protected]

SERVICES

PROBATE SUPPORT SPECIALISTS, LLC - Decedent, Conservatorship & Guardianship packages; Specializing in forensic Account investigation and regular Account preparation (especially those that are overdue!) Medicaid Applications. Liaison to Social Security, IRS, CMH, DHS, VA and County caseworkers and resources. Investigations, inventorying, liquidation of assets and supervised estate clean-outs. Please call Charlene Tope at (586) 415-0136.

WORKER’S COMPENSATION SOCIAL SECURITY DISABILITY: Charles A. Mancini and Roger R. Kline, 42 years in Macomb County winning over 150 million dollars for injured and disabled workers in the tri-county area. We honor referral fees. Call us and trust your clients will be satisfied with our representation. Mancini Schreuder Kline, 28225 Mound Rd., Warren (586) 751-3900.

MARCH 2018

Macomb County Bar Association40 N. Main St., Suite 435Mt. Clemens, MI 48043MacombBar.org

The Family Law Committee of the Macomb County Bar Association is pleased to announce a new Continuing Legal Education program for 2018 on the military aspects of Family Law.

MILITARY ASPECTS OF FAMILY LAW:

PART 3 OF 4-PART SERIES

Military Pension Featuring Brent Tanner, Esq.Gene Brentley Tanner is a partner at Sullivan & Tanner, P.A., where he currently represents clients in all aspects of family law including separation agreements, premarital agreements, postmarital agreements, custody and visitation, support matters, property division, complex equitable distribution, military pension division orders, court orders acceptable for processing, qualified domestic relations orders, and litigation and appeals. Mr. Tan-ner earned his Bachelor of Arts in political science from the University of North Carolina at Chapel Hill and his Juris Doctorate from the Norman Adrian Wiggins School of Law at Campbell University. Mr. Tanner is a North Carolina board-certified specialist in family law. He has been selected as a rising star in the North Carolina Super Lawyers publication and has been elected to Business North Carolina magazine’s Legal Elite for Family Law. He is a member of the Tenth Judicial district bar, the Wake County Bar Association, the North Carolina Bar Associa-

tion, and the American Bar Association. He is the Vice-chair for the America Bar Association Family Law Section Military Commit-tee. Mr. Tanner has published articles in the areas of family law in North Carolina Lawyer’s Weekly, the Oregon Family Lawyer, the Michigan Bar Journal, the Pennsylvania Family Lawyer, the North Carolina Family Forum, and in the Journal of the American Acad-emy of Matrimonial Lawyers. He has presented at continuing legal education seminars in several states regarding military divorce issues. Mr. Tanner represents clients in all counties within North Carolina and has appeared pro hace vice in Massachusetts in a case involving complex issues related to Survivor Benefit Plan coverage.

Cost is $25 per seminar. Please contact the MCBA Office at (586) 468-2940 ext. 1000 or online at Macombbar.org. Materials and lunch is provided. Please register before the Friday before the event. Late registrations or walk ins will be charged an extra $10.

Special thank you to Hon. Mark Switalski, Randall Chioini and Dawn Prokopec for organizing this seminar.

MARCH 19, 2018All seminars are held in Hon. Mark Switalski’s Courtroom

Lunch 11:45-12:15pm • Seminar Begins 12:15pm (Approx. 60 Minutes)

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