The Costly Lesson of Full Disclosure to Friend of the Court

by Wendy Alton

In Michigan, child support is modifiable upon change of circumstances, and in order to modify the amount of child support, you must file a motion/request with Friend of the Court. A referee in Friend of the Court then reviews each parent’s income, health care costs, child care costs, and parenting time and makes a recommendation based upon those facts. Once a recommendation is made, each parent has an opportunity to object to the recommendation, and if there is an objection filed, the matter goes to the Judge for a formal hearing.

So what happens if during the entire process one of the parents is less than forthcoming with their income information? What happens if one parent deliberately misstates their income?

The Court of Appeals recently discussed this exact situation in Keinz v Keinz, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 292781).

In Keinz v Keinz, a modification request was filed by the mother 3 years after the divorce was final. At the referee hearing, the father not only stated that his gross annual income was $41k, he produced a letter from his employer indicating the same thing. The referee made a recommendation, and the mother objected to that recommendation. Eventually a full evidentiary hearing was held by the Judge, at which time it was discovered that the father actually earned $81k annually, double the income he asserted at the referee hearing.

The father’s justification was that he was working overtime, but that due to his health, he didn’t expect to work any more overtime. However, it was discovered that at the time that he asserted that he would only earn $41k annually, he had already earned $40k and only half the year was over.

The mother asked the Court to make the father pay for her attorney fees stating that his position/defense was frivolous, which means that the father asserted a position that he knew was not true. While the trial court initially denied the mother’s request for attorney fees, the Court of Appeals determined that the father deliberately deceived the referee by offering evidence that he knew was not true. The Court of Appeals determined that the father’s position in the child support hearings was truly frivolous and because the mother ultimately prevailed with a higher child support amount (albeit after numerous court hearings), the father was responsible for paying the mother’s attorney fees.

The cost for deliberately deceiving Friend of the Court: paying for two attorneys.

If you are interested in learning more about divorce or family law, please call Wendy Alton at 248-380-9976 or email her at walton@fb-firm.com.

Michigan May be First to Implement Roadside Drug Testing

by Melissa Cox

On September 8, 2010 a bill was introduced to the Legislature that would authorize police to administer a roadside saliva test to check drivers for illegal drug use. The test would be similar, in theory, to the preliminary breath tests used to test for alcohol when an officer stops a driver suspected of being intoxicated.

In Michigan, the presence of any level of an illegal drug is grounds for a charge of operating with the presence of drugs. However, when an officer has probable cause that a driver is on drugs, confirmation often requires a search warrant and hospital-administered blood testing.

http://www.freep.com/article/20100909/NEWS06/9090347/Michigan-may-be-1st-to-adopt-roadside-drug-testing

Insurance Death Benefits Greed

by Jim Fausone

Upon the death of a service member, his or her family is entitled to death benefits from service life insurance. The financial press recently broke the story that Prudential Financial did not pay the lump sum to the families as expected. Instead, Prudential Financial Inc. would withhold lump-sum payments of life insurance benefits for survivors of fallen service members. The families, which were entitled to lump sums, were simply given checks to draw down on the amounts owed.

Prudential held $662 million of survivors’ money in its corporate general account as of June 30, according to information provided by the VA. Prudential’s general account earned 4.2 percent in 2009, mostly from bond investments, according to regulatory filings. The company has paid survivors holding Alliance Accounts 0.5 percent in 2010. This is financial greed at its worse. The company earned 3.7% on other people’s money.

If you know someone in this situation, have them contact us. The victims of this greed need to consider a class action to make Prudential pay the ill-gotten gains to the families of our fallen American heroes.

http://www.bloomberg.com/news/2010-09-14/how-prudential-cut-a-deal-with-the-va.html

New PTSD Rule - New Problem

by Jim Fausone

As many VA watchers know, VA adopted a new law "Relaxation of Evidentiary Standard for Establishing In Service Stressors in Claims for PTSD" dated July 13, 2010.

We at Legal Help for Veterans, PLLC have received the first rating decision taking this law into account. The VA conceded the Vietnam Vet's stressor exposure based on the new rule. This Army veteran had a Vietnam Service Medal and Campaign Medal. VA granted a 10% rating and set an effective date of July 13, 2010. VA did not evaluate the stressors under the old law. If it had, the effective date would have been 9 months earlier. Is this going to be the way VA handles these PTSD cases? VA concedes the stressor under the new law and does not evaluate or give an effective date back to the filing of the claim. It seems to me this is improper when the law was changed to make VA's life easier not to swindle vets on the effective date and retro payments.

Yes, we are going to appeal. I believe the Court will remand and make VA look back to the date of filing the claim using the old law.

Permanent Disability

by Jim Fausone

If you have a disability rating from VA, the first step is done. But you will want to get rated at 100% permanently disabled if appropriate. It is just one way that a disabled vet can take care of his family now and in the future. Without that designation, the vet’s family is not eligible for many benefits including medical insurance or college costs. Also, the VA may not pay a survivor's benefit to the surviving spouse unless they can prove the vet’s death is directly related to his military service. Most vets don't want their spouse to have to fight the VA. A recent article is worth reading on this subject.

http://www.stltoday.com/news/local/metro/article_6ee6516a-d8c5-55ab-a850-e7700f4cf26b.html

Personality Disorder Misdiagnosis

by Jim Fausone

We see soldiers discharged for or diagnosed with "personality disorder" all too often in our veteran disability practice. As a result, the veteran is not going to receive VA benefits. Personality disorder is a "preexisting condition" so there will be no grant of VA disability compensation. After an article in The Nation magazine, the Defense Department changed its policy and began requiring a top-level review of each case to ensure post-traumatic stress or a brain injury wasn't the underlying cause rather than a pre-existing condition. The Army had been discharging 1000 vets per year with personality disorder. However, the annual number of personality disorder cases dropped by 75% after the new policy was implemented. Only 260 soldiers were discharged on those grounds in 2009.

At the same time, the number of post-traumatic stress disorder cases has soared. By 2008, more than 14,000 soldiers had been diagnosed with PTSD - twice as many as two years before. The Army is now looking at if it misdiagnosed and discharged thousands of veterans in the last few years. The article attached discusses this problem and highlights the need to challenge a VA denial of claims for personality disorder.

http://www.usatoday.com/news/health/2010-08-15-incorrect-ptsd-dismissals_N.htm

Fausone Bohn Helps Local Business Obtain Former Wheel Plant

by Andrea Hayden

An article in the Livingston Daily recently highlighted the purchase by a local business of a former wheel manufacturing plant in Howell, Michigan. The plant had been mothballed by Kelsey-Hayes Lemmerz, and vacant for over five years. The purchase of the property by Regal Recycling will give the area a needed stimulus with the addition of jobs and an operating presence at the facility. Howell Township Clerk, Carolyn Eaton, stated that “[h]aving a building of that size operating adds some value to the town. We don’t like to see any of our buildings empty.” This is certainly a common sentiment among Michigan residents considering that “for sale or lease” signs have become a common adornment to building facades across the state.

With such a surplus of property on the market, and property values having plummeted, if you’re looking to buy it would seem that now is a great time to find a deal. This may be true, however, oftentimes the purchase of property such as the former Kelsey-Hayes Wheel plant is complicated by the presence of bankruptcy, tax, environmental, or other legal issues that must be dealt with as part of the purchase. Fausone Bohn acted as legal counsel to Regal Recycling throughout the purchase of the former wheel plant, providing guidance on complex legal issues encountered throughout the transaction, including issues involving the adjacent Shiawassee River – a Superfund Site listed on the U.S. EPA’s National Priorities List.

If you are considering the purchase of commercial or industrial property, whether it be a Superfund site or the local welding shop down the road, and are interested in learning more about real estate transactions in Michigan, please call Paul Bohn or Andrea Hayden at 248-380-0000, or e-mail them at pbohn@fb-firm.com and ahayden@fb-firm.com

Read more about the former Kelsey-Hayes Wheel Plant purchase at: http://www.livingstondaily.com/apps/pbcs.dll/article?AID=/201009020500/NEWS01/100902001