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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 41221
Experience:  I provide family and divorce law advice to my clients in my firm.
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I have a Consent Judgment in Michigan. We have

Customer Question

I have a Consent Judgment for divorce in Michigan. We have 3 children. A clause within it states that if we take the kids to a Church, it must be a Catholic Church. Since then, my wife, our child, and myself, have been attending a Christian church. It was ruled yesterday that I have to abide by that unless she consents to change it. when I asked the Judge how we're supposed to go to church without taking my children, he replied that he didn't know. Furthermore, he ruled that we can only bring up two items anytime we file a motion- that that's all he will hear. How is this even justified? I thought he had to hear everything and consider all facts before making a decision? He didn't even hear the motions or responses in their entirety that day, nor did he even review the evidence! Is this even legal? Is this something I should take to an Appellate Court?
Submitted: 2 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your question. Please permit me to assist you with your concerns. I am sorry to hear that you find yourself in this situation. Am I presuming correctly that you and your ex are of different faiths? Does she have primary custodial rights?
Customer: replied 2 years ago.
We are of different faiths and we have Joint Legal Custody.
Expert:  Dimitry K., Esq. replied 2 years ago.
Hmm, in that situation at least in most cases the courts permit parents to take the children to their specific faiths and not generally limit such actions to one specific denomination unless the parties so agreed in the custodial agreement. If this was something that was not initially modified or negotiated the judge is technically right to keep the clause 'as is', but if you changed your faith, became more spiritual, and are seeking to provide such information to your children, I would suggest filing for a 'motion for reconsideration' to the courts, and then seek an appeal. I must be honest and state that such orders tend to be upheld unless you made that decision in the past without understanding or knowledge, but you can claim that exposure to other faiths or other denominations is ultimately in the child's best interest, and use that as grounds for filing. Sincerely, ***** *****
Customer: replied 2 years ago.
What about the 2 items per motion? And not hearing a motion, response, or counter in its entirety?
Expert:  Dimitry K., Esq. replied 2 years ago.
Hi, The judge can choose to refuse to re-litigate terms of the agreement if he believes that the issue are not based on an emergency review or where there is no substantial change in circumstance. The courts tend to dislike a constant review so placing a limit if nothing substantially changed is something that most courts honor and uphold. That is not unethical or a violation of the judge's role. Sincerely, ***** *****
Expert:  Dimitry K., Esq. replied 2 years ago.
PS. I am going to be at a meeting very shortly--should you have more questions, I promise to respond to them once I am available, but there may be a delay with my replies. Please do not worry, I will return to assist you should you need more help.
Customer: replied 2 years ago.
I'm sorry, but I want to know the actual law that states that they can do so. As far as I know, constitutionally, they are required to hear all items of a motion, review the evidence, and rule based on facts. My ex has continually violated the terms of our Change of Domicile, with a large amount of evidence, and he wouldn't even hear the motion as it was compiled. I want to lnow how it is justified, in law, to say he will only hear 2 things at a time?
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your follow-up.
The judge has the right to use to discretion, and almost all judges have a rule that if the same issue has been heard before within a very short period of time (for example within 12 months), they have the right to deem your motion 'frivolous' because that issue has been already litigated. And on that basis they can rule against you. You are respectfully ***** ***** you believe that the judge has a constitutional right to hear all items--that is false. A judge has to accept your filing...and then can choose to see if there is 'merit' in your filing. If there is no merit, the motion is dismissed for being 'frivolous'. And likewise, they hear ALL parts of the motion, they can just choose to rule against all parts by issuing a blanket denial. There is also a misconception that a judge has to explain their decision. That is also untrue--most decisions and rulings especially for motions are undocumented and no explanation is necessary. Without an explanation it is easier to appeal and reverse with a higher court, but a judge has no duty to explain or defend his reasoning.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Nothing of this sort was files previous, nor did he review the motion prior as he didn't know anything until we had our oral hearing. I would like a second opinion on this matter. I would still like to know what the law states.
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your patience.
As per Michigan precedent:
Subject-matter jurisdiction exists “when the
proceeding is of a class the court is authorized to adjudicate and the
claim stated in the complaint is not clearly frivolous.” In re Hatcher, 443
Mich 426, 444 (1993). See also Grubb Creek Action Comm v Shiawassee Co
Drain Comm’r, 218 Mich App 665, 668 (1996).
Also, please review Rule 2.403 Case Evaluation--it specifically grants the 'panel' (the judge) the right to evaluate whether the case is frivolous or not--and that is what you can use to argue that the merits are not frivolous and should be heard. I will link you to below to the full code:
http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/CHAPTER%202.%20CIVIL%20PROCEDURE%20(entire%20chapter).pdf
Good luck!
Sincerely,
Dimitry, Esq.