Trial Lawyer’s Takeaway: a circuit court can modify a child custody or spousal support order while the underlying divorce judgment is under appeal.
Under MCR 7.208(A), once a party has appealed an order or judgment to the Michigan Court of Appeals, a lower cannot modify that order or a judgment, with a limited number of exceptions. One of those exceptions, listed in 7.208(A)(4), is when the power to modify the prior order is “otherwise provided by law.” The question in this case was whether MCL 722.27(1), a provision of the Child Custody Act, which gives a circuit court the power to resolve custody disputes, constitutes the power to modify a prior order “as provided by law.”
Read MoreTrial Lawyer’s Takeaway: Legislature’s MMERP warnings sufficient to recover Medicaid benefits from beneficiaries’ estates dating back to July 2010.
The issue in these consolidated cases was whether Michigan’s Department of Health and Human Services could recover Medicaid benefits paid from the beneficiary’s estate. In 1993, Congress required states to execute programs to recover certain Medicaid benefits from beneficiaries’ estates. To that end, Michigan enacted the Michigan Medicaid Estate-Recovery Program. Michigan’s Medicaid application forms did not warn about MMERP when Rasmer initially applied for benefits in 2008. By the time Rasmer’s patient representative sought a redetermination in 2013, the form did include such a warning.
Read MoreTrial-lawyers’ bottom line: If parent has a disability, HHS must establish a service plan that accommodates the parent’s disability.
Ms. Brown is mentally disabled. In 2012, she brought her infant daughter to the Department of Health and Human Services. The Department moved to place the child in protective custody, and the Wayne County Circuit Court took jurisdiction, instituting a service plan provided by the Department. Brown later gave birth to a son, who the court took jurisdiction over him in 2013.
During 2013, Brown’s attorney argued that the Department’s services did not meet her needs as a disabled person. Through 2014 and much of 2015, Brown’s attorney sought services to accommodate Brown’s intellectual disability. She never received them. And in 2015, the Department filed a petition to terminate her parental rights, which the Court of Appeals granted.
The Court of Appeals gave short shrift to the Department’s argument that Brown waived her claim by failing to object to the service plan when it was adopted. The Court of Appeals then ruled that the Department failed to provide a service plan that accommodated Brown’s disability. The Supreme Court granted the children’s guardian ad litem leave to appeal. The questions were (1) whether Brown timely raised her claim for accommodation; and (2) whether the Department’s efforts at family reunification were reasonable—as required by statute.
Read MoreTrial-Lawyers’ Bottom Line: Presumptive father is a necessary party when court is determining parental rights, and the mother could not assert the presumptive father’s limitations defense until he joined the case as a defendant.
In 2009, Sharea Foster gave birth to a baby boy. Under Michigan law, her husband, Christopher Foster, was the child’s presumptive father. See Pecoraro v. Rostagno-Wallat, 291 Mich. App. 303 (2011). But Shae Graham filed a petition under the Revocation of Paternity Act (RPA), MCL 722.1431 et seq., to prove his paternity of the child. Graham sued Sharea Foster only, however (not both of the Fosters). As a result, Sharea moved for summary disposition, arguing that (1) her husband Christopher was a necessary party; and (2) the RPA’s limitations period had expired in relation to Christopher. The trial court disagreed, and Sharea filed an interlocutory appeal.
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