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STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF MACOMB A. B R, Plaintiff, v. H D R, Defendant. MOTION FOR SUMMARY DISPOSITION OR, IN THE ALTERNATIVE, PETITION FOR DECLARATORY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW D H R, DEFENDANT, by and through his attorney, David Moody, who moves the Court for the following relief:
I. FACTUAL BACKGROUND
On July 26, 2000, A B R, ("A") filed a Verified Complaint for Divorce. She alleged
that "[t]here has been a breakdown in the marital relationship to the extent
that the objects of matrimony cannot be preserved" she wished for a dissolution
of the marriage. From that day forward, this family has been under the control
of the court because an Ex Parte Order for Interim Shared Custody; and Maintaining
Financial Status was entered.
On February 28, 2001, H D R ("D") filed his answer, and denied her allegations
regarding the marriage.
A and D continue to reside in their marital home. This is an intact family,
with four children.
On August 7, 2001, the Friend of the Court filed her "Custody Recommendation."
This three page document, attached as Exhibit "A," contains a brief factual
resume of the status of this family. The report reveals a "functioning  family
unit." D support the family unit, and A does not work outside the home. (She
began working outside the home when she decided to divorce D.) There is no violence
within the home. The investigator found a family home with both parents able
to provide the children with food, clothing, medical care, to provide a stable
living environment, to provide a "permanent" custodial home, to provide moral
fitness, to supply the children with parents who are sound physically and mentally,
and to provide a home completely free of domestic violence. The investigator
further found that A does not want to reconcile the marriage, but that D does
The investigator found a home in which both parties raised their children in
their religion and each parent desires to continue providing religious opportunity
to the children.
In conclusion, the third party investigator found a normal family living a normal
II. MOTION FOR SUMMARY DISPOSITION
A. Rule Allowing Challenge
A party may move for dismissal of a claim in accordance with MCR 2.116. The
party may move for dismissal on the basis that the court lacks jurisdiction
of the subject matter. MCR 2.116(C)(4). A party may also move for dismissal
because there is no genuine issue as to any material fact, and the moving party
is entitled to judgment as a matter of law. MCR 2.116(C)(10). This motion for
dismissal may be made at any time. MCR 2.116(D)(3).
B. Basis for Jurisdictional Challenge
A states that the trial court has jurisdiction over her marriage when MICH.
STAT. ANN. § 25.86 allows her to petition the court for a divorce because "there
has been a breakdown in the marriage relationship to the extent that the objects
of matrimony have been destroyed and there remains no reasonable likelihood
that the marriage can be preserved." MICH. STAT. ANN. ANN. § 25.86 (Lawyers
Coop. Pub. 1992). This is Michigan's "no-fault" divorce statute.
1. The Statute Violates D's First Amendment Right to Free Exercise of Religion
and Violates the Establishment of Religion Clause of the First Amendment
D asserts that the trial court cannot take jurisdiction over his marriage because
the statute violates his right to Free Exercise of Religion and the statute
violates the constitutional prohibition against establishment of religion set
forth in the First Amendment to the United States Constitution. The conduct
proscribed by the statute (marital "breakdown") is outside the cognizance of
the civil courts because it is not conduct posing a substantial threat to public
safety, peace or order.
2. The Statute Violates D First Amendment Rights By Taking
Unlimited Jurisdiction Over his Marriage, and
Further Violates the Freedom of Religion Guarantees of the Michigan Constitution
D further asserts that the trial court cannot take jurisdiction over his marriage
based upon MICH. STAT. ANN. ANN. § 25.86 because the statute takes unlimited
jurisdiction over all aspects of his marriage, including the religious aspects
of this marriage to A, in violation of the explicit protections given him under
the First Amendment and MICH. CONST. art. 1, § 4.
3. The Statute Violates D's Right to Have All Political Power Inherent in the
D further asserts that the trial court cannot take jurisdiction over his marriage
based upon MICH. STAT. ANN. § 25.86 because the statute as written and as applied
violates MICH. CONST. art, 1, § 1. That section states that all political power
is inherent in the people. Government is instituted for their equal benefit,
security and protection. This law takes political power away from "the people"
and places it solely and completely within the judiciary to dissolve every marriage
which comes before it. The court is further able to dissolve the marital relationship
at the will of one of the parties to the relationship, leaving the other spouse
completely unable to defend the marriage. This violates the Michigan State Constitutional
mandate that political power reside in the people for their "equal . . . protection."
D is completely unprotected by the government in this divorce case. The statute
presumes a winner and a loser, to the complete derogation of D's right to defend
himself in court, and the law is therefore void, and cannot confer the court
with jurisdiction over this marriage.
4. Michigan's No-Fault Divorce Statute Purported to Create a "Right" to Divorce,
and is Therefore Void. Source of Rights is in the People, Not Statutes
Finally, D challenges the court's jurisdiction over this marriage because MICH.
STAT. ANN. § 25.86 allegedly creates a "right" to a divorce. "Rights" are inherent
in the people, and cannot be created by statute. Therefore, any statute which
purports to create a "right" must be void, of no effect, and incapable of conferring
the trial court with jurisdiction over the purported subject matter of the statute,
which in this case is the marriage between D and A.
C. Basis for Judgment as a Matter of Law
A claims that her marriage has "broken down" yet she continues to reside with
D in their marital home. Michigan's no-fault divorce law means that people who
no longer reside with one another deserve a divorce. Yet, if the marriage partners
continue to reside together, and receive the benefits of the marital relationship,
such as providing for their children and enjoying the reduced cost of living
in one household rather than two households, then the court cannot conclude
that the marriage has broken down. A has not met the first part of her prima
facie case, namely, that she no longer resides with her husband. Without that
element, she cannot prevail on her claim that the marriage has "broken down"
and D is entitled to judgment as a matter of law.
III. PETITION FOR DECLARATORY JUDGMENT
A. Statutory Basis for Relief
In a case of actual controversy within its jurisdiction, a Michigan court of
record may declare the rights and other legal relations of an interested party
seeking a declaratory judgment, whether or not other relief is or could be sought
or granted. MCR § 2.605(A)(1).
B. Nature of Relief Sought and the Statute in Question
D seeks a declaration from the court declaring the Michigan's "no-fault" divorce
law unconstitutional for the following reasons.
By its own words, the statute extends judicial power into every aspect of the
marriage between A and D. The statute does not enumerate any specific "causes"
which might "destroy" the marriage relationship. The statute has these three
1. There has been a "breakdown" of the marriage relationship.
2. The objects of matrimony have been destroyed.
3. There remains no reasonable likelihood that the marriage can be preserved.
MICH. STAT. ANN. § 25.86.
1. Michigan's No Fault Divorce Statute Violates The First Amendment
and MICH. CONST. art. § 4
The judicial power of government does not extend into the religious affairs
of private citizens. D seeks a declaration that this statute is void because
it requires to government to decide if D has violated his religious duty to
avoid a "breakdown" of the marriage relationship.
Further, D seeks a declaration that the statute is void because it presumes
to be able ascertain the "objects of matrimony" without reference to the religious
meaning of marriage.
Further, D seeks a declaration that the statute is void because the government
must determine whether the marriage can be preserved, a question which is uniquely
religious in character, and impossible to answer by a governmental official.
Further, D seeks a declaration that the statute is void because it attempts
to regulate conduct which does not pose a substantial threat to public safety,
peace, or order, in violation of the First Amendment and MICH. CONST. art. §
2. Michigan's No-Fault Divorce Statute Violates Michigan's Guarantee of
Equal Protection of the Law
D also seeks a declaration that the statute is void because it violates Michigan's
promise of equal protection of the law as set forth in MICH. CONST. art. 1,
D prays that the Court will GRANT the relief requested, and DECLARE that MICH.
STAT. ANN. § 25.86 violates the United States and Michigan Constitutions and
is void, and that the Circuit Court of Michigan, County of Macomb has no jurisdiction
over the marriage between A and D R.
Further, D seeks an order from the court granting his Motion for Summary Disposition on the grounds that he is entitled to judgment as a matter of law because A cannot meet her prima facie case because she continues to reside with D in their marital home.
Further, D seeks a declaration that MICH. STAT. ANN. 25.86 is unconstitutional under the United States Constitution, and for separate and equally persuasive grounds, under the Michigan Constitution.
D moves the court to award him attorney's fees and his costs, and any other relief to which the court may find him to be entitled.
David Moody, Texas Bar Number 00795539
The Law Office of David Moody, P.C.
P.O. Box 94361
Lubbock, TX 79493
PROOF OF SERVICE
STATE OF TEXAS )
COUNTY OF LUBBOCK )
David Moody, being first duly sworn, deposes and state that on _____________________ he did serve a copy of this pleading upon R G. M Esq., attorney for the plaintiff and M A. K, attorney for defendant, via first class mail with postage fully prepaid thereon, return receipt requested.
Subscribed to and sworn before me this _______________