Motion to Vacate Temporary Child Support Order.

Looking at the case law I referenced several cases in it:

Whybra v. Gustafson, 140 N.W.2d 760 Mich App., 1966

"No support payment schedule may serve as substitute for examination and careful evaluation of circumstances of each child support case"

Whybra v. Gustafson, 140 N.W.2d 760 Mich App., 1966

"No judge may blindly follow any support payment schedule in abdication of his duty to excercise discretion"

Paulson v. Paulson. 657 N.W.2d 559 Mich App., 2002

"Court may deviate from legislatively mandated child support formula if the court determines from the facts of the case that application of the formula would be unjust or inappropriate. MCLA 552.519

This was all old news in this case. This was all stemming from me being forced into signing a consent order in November of 2003 and not understanding all the facts surrounding what that consent really involved. I had an attorney that just wanted to get this into the system so that it would manage itself and who was too busy wanting to write books. I fired him, despite the court saying how great he was all the time and how "capable" he was.

In my Prior Brief in 2004 I go through all the statutes and prove that the court must give up its stance of discretion when there is no language in the statute that allows for it.

Thompson v. Thompson Mich App. March 23, 2004 (cite wasn't available then)

In the new brief I lay the grounds for the actual statute that appears with mandatory language in OVER 8 DIFFERENT PLACES IN the Michigan Compiled Laws. I couldn't believe it appearing so many times that says that a Judge must follow the procedure laid out in the Michigan Compiled Laws for initial and modified child support orders. My Judge has violated this just a few weeks ago when he arbitrarily raised the child support level pending a future evidentiary hearing that I ORIGINALLY REQUESTED IN APRIL 2004!!

BELOW I HAVE SUMMARIZED MY ROUGHT BRIEF FOR YOU ALL TO LOOK AT THAT BASICALLY INCORPORATES THE PRIOR BRIEF ON THE GROUNDS THAT IT HAS ALL THE STATUTORY CONSTRUCTION ARGUMENTS IN IT.

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KENT

___________

LARY HOLLAND (Pro Se),                                                   BRIEF IN SUPPORT OF DEFENDANT'S  MOTION TO VACATE

INTRODUCTION

            On Motion to Disqualify Judge Steven M. Pestka and the Kent County Friend of the Court by Defendant several issues of law were discussed and not concluded at the hearing and subsequently questioned by Judge Steven M. Pestka. Statements were made in a manner that a reasonable man could impute from hearing that essentially it was the duty of the litigants and the parties’ attorneys to raise the issue as to duty of the court on certain issues of law and with regard to Child Support.

            On or around November 13, 2003 a Temporary Consent Order was entered with regard to the minor child Esilanna, and an Order RE: Jurisdiction was determined by the Court regarding the parties’ minor child Esilanna. Both records are available in the Court Record and therefore do not have to be reattached. Although the Defendant had what Judge Steven M. Pestka refers to as very “prestigious counsel” and very “capable counsel” among other statements made directly by Judge Steven M. Pestka as well as the attorney for Plaintiff, Peter Walsh. However, although Judge Steven Pestka’s opinions pertaining to a particular attorney does not give him first hand knowledge of the advice that was supplied to Defendant. Defendant realized that his counsel was not capable in the matter at-hand and was a detriment to Defendant in the matter at hand. Demonstrably both parties were instantly litigating with their counselors on multiple issues surrounding the Temporary Consent Order and Defendant’s counsel declined to properly handle an appeal on Jurisdiction among other things because of his time constraints and other issues surrounding this case. The Temporary Consent Order RE: Esilanna was forced onto Defendant in fear of not having counsel at the time and who was experiencing other issues that nullified his ability to enter into a synallagamatic contract of any type.

            Addressing the ill-advised legal advice provided directly to Defendant where Defendant was not provided all the facts prior to entering into the consent is currently not at issue, but is reserved by the previous filings and statements made throughout the course of proceedings in this court. Addressing the statements pertaining to Attorney for Plaintiff, Peter Walsh, alleging that Defendant’s former counsel was “capable” has no bearing as he has no first-hand knowledge as to the advice provided to Defendant. Judge Steven M. Pestka’s statements regarding his apparent appreciation for Defendant’s former counsel also could not be formed with respect to the advice that Defendant received, unless he was present in the conference rooms while the advice was provided to Defendant and additionally is irrelevant to the point at hand.

            What is noteworthy in this action is that this Court has not provided any findings of fact regarding the “best interest factors” related to the Michigan Custody Act 1970 and this Court has failed to properly review its past Orders upon presentment of binding case law and statutes.

LEGAL ARGUMENT

Defendant hereby reaffirms and attaches his BRIEF IN SUPPORT OF DEFENDANT’S ANSWER AND OBJECTION TO PLAINTIFF’S MOTION FOR CONTEMPT, et al; April 20, 2004 as “Prior Brief” and recognizes that it already exists in its entirety in this Court’s file and Defendant’s position is as unambiguous as the legislature’s position in this matter.. The ancillary arguments will not be rehashed as the statutory language is plain, the statutes referenced are unambiguous in nature and are mandatory authorities directing the court of its duties that it has continually disregarded for months.

In addition to all of the authorities listed in Defendant’s Prior Brief the following authorities are additionally relied on:

Burba v Burba 461 Mich. 637, 610 N.W.2d 873 states that:

Court must follow the statutory procedures set forth in statute governing modification of child support orders when modifying such an order. M.C.L.A. 552.17.

Burba v Burba 461 Mich. 637, 610 N.W.2d 873 further states that:

Trial court failed to fulfill its statutory duty to memorialize and explain its deviation from statutory child support formula, in action by former wife to modify child support order contained in parties’ divorce decree, where court failed to state, in writing or on the record, the level of support it would have ordered had it followed the formula, or to provide an explanation of how the order deviated from the formula. M.C.L.A 552.17(2)(a,b).

Burba v Burba 461 Mich. 637, 610 N.W.2d 873 further states that:

When construing a statute, court’s foremost duty is to discern and give effect to the legislature’s intent; court begins with an examination of the statutory language itself, which provides the most valuable evidence of legislative intent.

The Supreme Court also held in Ghidotti, supra, “the criteria for deviating from the formula are mandatory. Generally, the legislator has prescribed that courts shall follow the formula, but it also allows deviation in appropriate circumstances following a specific procedure. The importance the Legislature attached to courts carefully articulating these factors when deviating from the formula cannot be underestimated, for the Legislature prescribed their use when courts deviate from the formula in no less than eight different sections of the Michigan Compiled Laws. See: MCL 552.15; MSA 25.95; MCL 552.16; MSA 25.96; MCL 552.452; MSA 25.244(3); MCL 722.27; MSA 25.312(7), MCL 722.717; MSA 25.497; MCL 780.164; MSA 25.225.”

MSA 25.97. Section 16 also governs an initial order of child support rather than modifications of support and additionally is on point with regard to the case at hand.

CONCLUSION

 It is undeniable that the Temporary Order did not conform to the statutory requirements laid by the Legislator notwithstanding the indicators previously disclosed in the Prior Brief and that the Order should be VACATED or otherwise struck from the Temporary Order RE: Esilanna until proper motion is laid before the Court with regard to the setting of a proper Temporary Child Support Order RE: Esilanna with retroactive effect minus deductions that were already received by Plaintiff.