Rule 3.001 Applicability
The rules in this chapter apply in circuit court and in other courts as provided by law or by these rules.
(Current as of 06/30/2006)
Rule 3.101 Garnishment After Judgment
(A) Definitions. In this rule,
(1) "plaintiff" refers to any judgment creditor,
(2) "defendant" refers to any judgment debtor,
(3) "garnishee" refers to the garnishee defendant,
(4) "periodic payments" includes but is not limited to, wages, salary, commissions, bonuses, and other income paid to the defendant during the period of the writ; land contract payments; rent; and other periodic debt or contract payments. Interest payments and other payments listed in MCL 600.4012(4)(a)-(d) are not periodic payments.
(B) Postjudgment Garnishments.
(1) Periodic garnishments are garnishments of periodic payments, as provided in this rule.
(a) Unless otherwise ordered by the court, a writ of periodic garnishment served on a garnishee who is obligated to make periodic payments to the defendant is effective until the first to occur of the following events:
(i) the amount withheld pursuant to the writ equals the amount of the unpaid judgment, interest, and costs stated in the verified statement in support of the writ;
(ii) the expiration of 91 days after the date the writ was issued;
(iii) the plaintiff files and serves on the defendant and the garnishee a notice that the amount withheld exceeds the remaining unpaid judgment, interest, and costs, or that the judgment has otherwise been satisfied.
(b) The plaintiff may not obtain the issuance of a second writ of garnishment on a garnishee who is obligated to make periodic payments to the defendant while a prior writ served on that garnishee remains in effect relating to the same judgment. The plaintiff may seek a second writ after the first writ expires under subrule (B)(1)(a).
(c) If a writ of periodic garnishment is served on a garnishee who is obligated to make periodic payments to the defendant while another order that has priority under MCL 600.4012(2) is in effect, or if a writ or order with higher priority is served on the garnishee while another writ is in effect, the garnishee is not obligated to withhold payments pursuant to the lower priority writ until the expiration of the higher priority one. However, in the case of garnishment of earnings, the garnishee shall withhold pursuant to the lower priority writ to the extent that the amount being withheld pursuant to the higher priority order is less than the maximum that could be withheld by law pursuant to the lower priority writ (see, e.g., 15 USC 1673). Upon the expiration of the higher priority writ, the lower priority one becomes effective until it would otherwise have expired under subrule (B)(1)(a). The garnishee shall notify the plaintiff of receipt of any higher priority writ or order and provide the information required by subrule (H)(2)(c).
(2) Nonperiodic garnishments are garnishments of property or obligations other than periodic payments.
(C) Forms. The state court administrator shall publish approved forms for use in garnishment proceedings. Separate forms shall be used for periodic and nonperiodic garnishments. The verified statement, writ, and disclosure filed in garnishment proceedings must be substantially in the form approved by the state court administrator.
(D) Request for and Issuance of Writ. The clerk of the court that entered the judgment shall issue a writ of garnishment if the plaintiff, or someone on the plaintiff's behalf, makes and files a statement verified in the manner provided in MCR 2.114(A) stating:
(1) that a judgment has been entered against the defendant and remains unsatisfied;
(2) the amount of the judgment and the amount remaining unpaid;
(3) that the person signing the verified statement knows or has good reason to believe that
(a) a named person has control of property belonging to the defendant,
(b) a named person is indebted to the defendant, or
(c) a named person is obligated to make periodic payments to the defendant.
(E) Writ of Garnishment.
(1) The writ of garnishment must have attached or must include a copy of the verified statement requesting issuance of the writ, and must include information that will permit the garnishee to identify the defendant, such as the defendant's address, social security number, employee identification number, federal tax identification number, employer number, or account number, if known.
(2) Upon issuance of the writ, it shall be served upon the garnishee as provided in subrule (F)(1). The writ shall include the date on which it was issued and the last day by which it must be served to be valid, which is 91 days after it was issued.
(3) The writ shall direct the garnishee to:
(a) serve a copy of the writ on the defendant as provided in subrule (F)(2);
(b) within 14 days after the service of the writ, file with the court clerk a verified disclosure indicating the garnishee's liability (as specified in subrule [G][1]) to the defendant and mail or deliver a copy to the plaintiff and the defendant;
(c) deliver no tangible or intangible property to the defendant, unless allowed by statute or court rule;
(d) pay no obligation to the defendant, unless allowed by statute or court rule; and
(e) in the discretion of the court and in accordance with subrule (J), order the garnishee either to
(i) make all payments directly to the plaintiff or
(ii) send the funds to the court in the manner specified in the writ.
(4) The writ shall direct the defendant to refrain from disposing of
(a) any negotiable instrument representing a debt of the garnishee (except the earnings of the defendant), or
(b) any negotiable instrument of title representing property in which the defendant claims an interest held in the possession or control of the garnishee.
(5) The writ shall inform the defendant that unless the defendant files objections within 14 days after the service of the writ on the defendant,
(a) without further notice the property or debt held pursuant to the garnishment may be applied to the satisfaction of the plaintiff's judgment, and
(b) periodic payments due to the defendant may be withheld for as long as 91 days after the issuance of the writ and in the discretion of the court paid directly to the plaintiff.
(6) The writ shall direct the plaintiff to serve the garnishee as provided in subrule (F)(1), and to file a proof of service.
(F) Service of Writ.
(1) The plaintiff shall serve the writ of garnishment, a copy of the writ for the defendant, the disclosure form, and any applicable fees, on the garnishee within 91 days after the date the writ was issued in the manner provided for the service of a summons and complaint in MCR 2.105.
(2) The garnishee shall within 7 days after being served with the writ deliver a copy of the writ to the defendant or mail a copy to the defendant at the defendant's last known address by first class mail.
(G) Liability of Garnishee.
(1) Subject to the provisions of the garnishment statute and any setoff permitted by law or these rules, the garnishee is liable for
(a) all tangible or intangible property belonging to the defendant in the garnishee's possession or control when the writ is served on the garnishee, unless the property is represented by a negotiable document of title held by a bona fide purchaser for value other than the defendant;
(b) all negotiable documents of title and all goods represented by negotiable documents of title belonging to the defendant if the documents of title are in the garnishee's possession when the writ is served on the garnishee;
(c) all corporate share certificates belonging to the defendant in the garnishee's possession or control when the writ is served on the garnishee;
(d) all debts, whether or not due, owing by the garnishee to the defendant when the writ is served on the garnishee, except for debts evidenced by negotiable instruments or representing the earnings of the defendant;
(e) all debts owing by the garnishee evidenced by negotiable instruments held or owned by the defendant when the writ of garnishment is served on the defendant, as long as the instruments are brought before the court before their negotiation to a bona fide purchaser for value;
(f) the portion of the defendant's earnings that are not protected from garnishment by law (see, e.g., 15 USC 1673) as provided in subrule (B);
(g) all judgments in favor of the defendant against the garnishee in force when the writ is served on the garnishee;
(h) all tangible or intangible property of the defendant that, when the writ is served on the garnishee, the garnishee holds by conveyance, transfer, or title that is void as to creditors of the defendant, whether or not the defendant could maintain an action against the garnishee to recover the property; and
(i) the value of all tangible or intangible property of the defendant that, before the writ is served on the garnishee, the garnishee received or held by conveyance, transfer, or title that was void as to creditors of the defendant, but that the garnishee no longer held at the time the writ was served, whether or not the defendant could maintain an action against the garnishee for the value of the property.
(2) The garnishee is liable for no more than the amount of the unpaid judgment, interest, and costs as stated in the verified statement requesting the writ of garnishment. Property or debts exceeding that amount may be delivered or paid to the defendant notwithstanding the garnishment.
(H) Disclosure. The garnishee shall mail or deliver to the court, the plaintiff, and the defendant, a verified disclosure within 14 days after being served with the writ.
(1) Nonperiodic Garnishments.
(a) If indebted to the defendant, the garnishee shall file a disclosure revealing the garnishee's liability to the defendant as specified in subrule (G)(1) and claiming any setoff that the garnishee would have against the defendant, except for claims for unliquidated damages for wrongs or injuries.
(b) If not indebted to the defendant, the garnishee shall file a disclosure so indicating.
(2) Periodic Garnishments.
(a) If not obligated to make periodic payments to the defendant, the disclosure shall so indicate, and the garnishment shall be considered to have expired.
(b) If obligated to make periodic payments to the defendant, the disclosure shall indicate the nature and frequency of the garnishee's obligation. The information must be disclosed even if money is not owing at the time of the service of the writ.
(c) If a writ or order with a higher priority is in effect, in the disclosure the garnishee shall specify the court that issued the writ or order, the file number of the case in which it was issued, the date it was issued, and the date it was served.
(I) Withholding. This subrule applies only if the garnishee is indebted to or obligated to make periodic payments to the defendant.
(1) Except as otherwise provided in this subrule, the writ shall be effective as to obligations owed and property held by the garnishee as of the time the writ is served on the garnishee.
(2) In the case of periodic earnings, withholding shall commence according to the following provisions:
(a) For garnishees with weekly, biweekly, or semimonthly pay periods, withholding shall commence with the first full pay period after the writ was served.
(b) For garnishees with monthly pay periods, if the writ is served on the garnishee within the first 14 days of the pay period, withholding shall commence on the date the writ is served. If the writ is served on the garnishee on or after the 15th day of the pay period, withholding shall commence the first full pay period after the writ was served.
(3) In the case of periodic earnings, withholding shall cease according to the following provisions:
(a) For garnishees with weekly, biweekly, or semimonthly pay periods, withholding shall cease upon the end of the last full pay period prior to the expiration of the writ.
(b) For garnishees with monthly pay periods, withholding shall continue until the writ expires.
(4) At the time that a periodic payment is withheld, the garnishee shall provide the following information to the plaintiff and defendant:
(a) the name of the parties;
(b) the case number;
(c) the date and amount withheld;
(d) the balance due on the writ.
The information shall also be provided to the court if funds are sent to the court.
(5) If funds have not been withheld because a higher priority writ or order was in effect, and the higher priority writ ceases to be effective before expiration of the lower priority one, the garnishee shall begin withholding pursuant to the lower priority writ as of the date of the expiration of the higher priority writ.
(J) Payment.
(1) After 28 days from the date of the service of the writ on the garnishee, the garnishee shall transmit all withheld funds to the plaintiff or the court as directed by the court pursuant to subrule (E)(3)(e) unless notified that objections have been filed.
(2) For periodic garnishments, all future payments shall be paid as they become due as directed by the court pursuant to subrule (E)(3)(e) until expiration of the garnishment.
(3) Upon receipt of proceeds from the writ, the court shall forward such proceeds to the plaintiff.
(4) Payment to the plaintiff may not exceed the amount of the unpaid judgment, interest, and costs stated in the verified statement requesting the writ of garnishment. If the plaintiff claims to be entitled to a larger amount, the plaintiff must proceed by motion with notice to the defendant.
(5) In the case of earnings, the garnishee shall maintain a record of all payment calculations and shall make such information available for review by the plaintiff, the defendant, or the court, upon request.
(6) For periodic garnishments, within 14 days after the expiration of the writ or after the garnishee is no longer obligated to make periodic payments, the garnishee shall file with the court and mail or deliver to the plaintiff and the defendant, a final statement of the total amount paid on the writ. If the garnishee is the defendant's employer, the statement is to be filed within 14 days after the expiration of the writ, regardless of changes in employment status during the time that the writ was in effect. The statement shall include the following information:
(a) the names of the parties and the court in which the case is pending;
(b) the case number;
(c) the date of the statement;
(d) the total amount withheld;
(e) the difference between the amount stated in the verified statement requesting the writ and the amount withheld.
(7) If the disclosure states that the garnishee holds property other than money belonging to the defendant, the plaintiff must proceed by motion (with notice to the defendant and the garnishee) to seek an appropriate order regarding application of the property to satisfaction of the judgment. If there are no pending objections to the garnishment, and the plaintiff has not filed such a motion within 56 days after the filing of the disclosure, the garnishment is dissolved and the garnishee may release the property to the defendant.
(K) Objections.
(1) Objections shall be filed with the court within 14 days of the date of service of the writ on the defendant. Objections may be filed after the time provided in this subrule but do not suspend payment pursuant to subrule (J) unless ordered by the court. Objections may only be based on defects in or the invalidity of the garnishment proceeding itself, and may not be used to challenge the validity of the judgment previously entered.
(2) Objections shall be based on one or more of the following:
(a) the funds or property are exempt from garnishment by law;
(b) garnishment is precluded by the pendency of bankruptcy proceedings;
(c) garnishment is barred by an installment payment order;
(d) garnishment is precluded because the maximum amount permitted by law is being withheld pursuant to a higher priority garnishment or order;
(e) the judgment has been paid;
(f) the garnishment was not properly issued or is otherwise invalid.
(3) Within 7 days of the filing of objections, notice of the date of hearing on the objections shall be sent to the plaintiff, the defendant, and the garnishee. The hearing date shall be within 21 days of the date the objections are filed. In district court, notice shall be sent by the court. In circuit and probate court, notice shall be sent by the objecting party.
(4) The court shall notify the plaintiff, the defendant, and the garnishee of the court's decision.
(L) Steps After Disclosure; Third Parties; Interpleader; Discovery.
(1) Within 14 days after service of the disclosure, the plaintiff may serve the garnishee with written interrogatories or notice the deposition of the garnishee. The answers to the interrogatories or the deposition testimony becomes part of the disclosure.
(2) If the garnishee's disclosure declares that a named person other than the defendant and the plaintiff claims all or part of the disclosed indebtedness or property, the court may order that the claimant be added as a defendant in the garnishment action under MCR 2.207. The garnishee may proceed under MCR 3.603 as in interpleader actions, and other claimants may move to intervene under MCR 2.209.
(3) The discovery rules apply to garnishment proceedings.
(4) The filing of a disclosure, the filing of answers to interrogatories, or the personal appearance by or on behalf of the garnishee at a deposition does not waive the garnishee's right to question the court's jurisdiction, the validity of the proceeding, or the plaintiff's right to judgment.
(M) Determination of Garnishee's Liability.
(1) If there is a dispute regarding the garnishee's liability or if another person claims an interest in the garnishee's property or obligation, the issue shall be tried in the same manner as other civil actions.
(2) The verified statement acts as the plaintiff's complaint against the garnishee, and the disclosure serves as the answer. The facts stated in the disclosure must be accepted as true unless the plaintiff has served interrogatories or noticed a deposition within the time allowed by subrule (L)(1) or another party has filed a pleading or motion denying the accuracy of the disclosure. Except as the facts stated in the verified statement are admitted by the disclosure, they are denied. Admissions have the effect of admissions in responsive pleadings. The defendant and other claimants added under subrule (L)(2) may plead their claims and defenses as in other civil actions. The garnishee's liability to the plaintiff shall be tried on the issues thus framed.
(3) Even if the amount of the garnishee's liability is disputed, the plaintiff may move for judgment against the garnishee to the extent of the admissions in the disclosure. The general motion practice rules govern notice (including notice to the garnishee and the defendant) and hearing on the motion.
(4) The issues between the plaintiff and the garnishee will be tried by the court unless a party files a demand for a jury trial within 7 days after the filing of the disclosure, answers to interrogatories, or deposition transcript, whichever is filed last. The defendant or a third party waives any right to a jury trial unless a demand for a jury is filed with the pleading stating the claim.
(5) On the trial of the garnishee's liability, the plaintiff may offer the record of the garnishment proceeding and other evidence. The garnishee may offer evidence not controverting the disclosure, or in the discretion of the court, may show error or mistakes in the disclosure.
(6) If the court determines that the garnishee is indebted to the defendant, but the time for payment has not arrived, a judgment may not be entered until after the time of maturity stated in the verdict or finding.
(N) Orders for Installment Payments.
(2) If an order terminating the installment payment order is entered and served on the garnishee, the writ again becomes effective and remains in force until it would have expired if the installment payment order had never been entered.
(O) Judgment and Execution.
(1) Judgment may be entered against the garnishee for the payment of money or the delivery of specific property as the facts warrant. A money judgment against the garnishee may not be entered in an amount greater than the amount of the unpaid judgment, interest, and costs as stated in the verified statement requesting the writ of garnishment. Judgment for specific property may be enforced only to the extent necessary to satisfy the judgment against the defendant.
(2) The judgment against the garnishee discharges the garnishee from all demands by the defendant for the money paid or property delivered in satisfaction of the judgment. If the garnishee is sued by the defendant for anything done under the provisions of these garnishment rules, the garnishee may introduce as evidence the judgment and the satisfaction.
(3) If the garnishee is chargeable for specific property that the garnishee holds for or is bound to deliver to the defendant, judgment may be entered and execution issued against the interest of the defendant in the property for no more than is necessary to satisfy the judgment against the defendant. The garnishee must deliver the property to the officer serving the execution, who shall sell, apply, and account as in other executions.
(4) If the garnishee is found to be under contract for the delivery of specific property to the defendant, judgment may be entered and execution issued against the interest of the defendant in the property for no more than is necessary to satisfy the judgment against the defendant. The garnishee must deliver the property to the officer serving the execution according to the terms of the contract. The officer shall sell, apply, and account as in ordinary execution.
(5) If the garnishee is chargeable for specific property and refuses to expose it so that execution may be levied on it, the court may order the garnishee to show cause why general execution should not issue against the garnishee. Unless sufficient cause is shown to the contrary, the court may order that an execution be issued against the garnishee in an amount not to exceed twice the value of the specifically chargeable property.
(6) The court may issue execution against the defendant for the full amount due the plaintiff on the judgment against the defendant. Execution against the garnishee may not be ordered by separate writ, but must always be ordered by endorsement on or by incorporation within the writ of execution against the defendant. The court may order additional execution to satisfy the plaintiff's judgment as justice requires.
(7) Satisfaction of all or part of the judgment against the garnishee constitutes satisfaction of a judgment to the same extent against the defendant.
(P) Appeals. A judgment or order in a garnishment proceeding may be set aside or appealed in the same manner and with the same effect as judgments or orders in other civil actions.
(Q) Receivership.
(1) If on disclosure or trial of a garnishee's liability, it appears that when the writ was served the garnishee possessed,
(a) a written promise for the payment of money or the delivery of property belonging to the defendant, or
(b) personal property belonging to the defendant,
the court may order the garnishee to deliver it to a person appointed as receiver.
(2) The receiver must
(a) collect the written promise for payment of money or for the delivery of property and apply the proceeds on any judgment in favor of the plaintiff against the garnishee and pay any surplus to the garnishee, and
(b) dispose of the property in an amount greater than any encumbrance on it can be obtained, and after paying the amount of the encumbrance, apply the balance to the plaintiff's judgment against the garnishee and pay any surplus to the garnishee.
(3) If the garnishee refuses to comply with the delivery order, the garnishee is liable for the amount of the written promise for the payment of money, the value of the promise for the delivery of property, or the value of the defendant's interest in the encumbered personal property. The facts of the refusal and the valuation must be included in the receiver's report to the court.
(4) The receiver shall report all actions pertaining to the promise or property to the court. The report must include a description and valuation of any property, with the valuation to be ascertained by appraisal on oath or in a manner the court may direct.
(R) Costs and Fees.
(1) Costs and fees are as provided by law or these rules.
(2) If the garnishee is not indebted to the defendant, does not hold any property subject to garnishment, and is not the defendant's employer, the plaintiff is not entitled to recover the costs of that garnishment.
(S) Failure to Disclose or to Do Other Acts; Default; Contempt.
(1) If the garnishee fails to disclose or do a required act within the time limit imposed, a default may be taken as in other civil actions. A default judgment against a garnishee may not exceed the amount of the garnishee's liability as provided in subrule (G)(2).
(2) If the garnishee fails to comply with the court order, the garnishee may be adjudged in contempt of court.
(3) In addition to other actions permitted by law or these rules, the court may impose costs on a garnishee whose default or contempt results in expense to other parties. Costs imposed shall include reasonable attorney fees and shall not be less than $100.
(T) Judicial Discretion. On motion the court may by order extend the time for:
(1) the garnishee's disclosure;
(2) the plaintiff's filing of written interrogatories;
(3) the plaintiff's filing of a demand for oral examination of the garnishee;
(4) the garnishee's answer to written interrogatories;
(5) the garnishee's appearance for oral examination; and
(6) the demand for jury trial.
The order must be filed with the court and served on the other parties.
(Current as of 06/30/2006)
Rule 3.102 Garnishment Before Judgment
(A) Availability of Prejudgment Garnishment.
(1) After commencing an action on a contract, the plaintiff may obtain a prejudgment writ of garnishment under the circumstances and by the procedures provided in this rule.
(2) Except as provided in subrule (A)(3), a prejudgment garnishment may not be used
(b) to garnish a defendant's earnings; or
(c) to garnish property held or an obligation owed by the state or a governmental unit of the state.
(3) This rule also applies to a prejudgment garnishment in an action brought to enforce a foreign judgment. However, the following provisions apply:
(a) The defendant need not be subject to the court's jurisdiction;
(b) The request for garnishment must show that
(i) the defendant is indebted to the plaintiff on a foreign judgment in a stated amount in excess of all setoffs;
(ii) the defendant is not subject to the jurisdiction of the state, or that after diligent effort the plaintiff cannot serve the defendant with process; and
(iii) the person making the request knows or has good reason to believe that a named person
(A) has control of property belonging to the defendant, or
(B) is indebted to the defendant.
(c) Subrule (H) does not apply.
(B) Request for Garnishment. After commencing an action, the plaintiff may seek a writ of garnishment by filing an ex parte motion supported by a verified statement setting forth specific facts showing that:
(1) the defendant is indebted to the plaintiff on a contract in a stated amount in excess of all setoffs;
(2) the defendant is subject to the jurisdiction of the state;
(3) after diligent effort the plaintiff cannot serve the defendant with process; and
(4) the person signing the statement knows or has good reason to believe that a named person
(a) has control of property belonging to the defendant, or
(b) is indebted to the defendant.
On a finding that the writ is available under this rule and that the verified statement states a sufficient basis for issuance of the writ, the judge to whom the action is assigned may issue the writ.
(C) Writ of Garnishment. The writ of garnishment must have attached or include a copy of the verified statement, and must:
(1) direct the garnishee to:
(a) file with the court clerk within 14 days after the service of the writ on him or her a verified disclosure indicating his or her liability (as specified in subrule [E]) to the defendant;
(b) deliver no tangible or intangible property to the defendant, unless allowed by statute or court rule;
(c) pay no obligation to the defendant, unless allowed by statute or court rule; and
(d) promptly provide the defendant with a copy of the writ and verified statement by personal delivery or by first class mail directed to the defendant's last known address;
(2) direct the defendant to refrain from disposing of any negotiable instrument representing a debt of the garnishee or of any negotiable instrument of title representing property in which he or she claims an interest held in the possession or control of the garnishee;
(3) inform the defendant that unless the defendant files objections within 14 days after service of the writ on the defendant, or appears and submits to the jurisdiction of the court, an order may enter requiring the garnishee to deliver the garnished property or pay the obligation to be applied to the satisfaction of the plaintiff's claim; and
(4) command the process server to serve the writ and to file a proof of service.
(D) Service of Writ. MCR 3.101(F) applies to prejudgment garnishment.
(E) Liability of Garnishee. MCR 3.101(G) applies to prejudgment garnishment except that the earnings of the defendant may not be garnished before judgment.
(F) Disclosure. The garnishee shall file and serve a disclosure as provided in MCR 3.101(H).
(G) Payment or Deposit Into Court. MCR 3.101(I) and (J) apply to prejudgment garnishment, except that payment may not be made to the plaintiff until after entry of judgment, as provided in subrule (I).
(H) Objection; Dissolution of Prejudgment Garnishment. Objections to and dissolution of a prejudgment garnishment are governed by MCR 3.101(K) and MCR 3.103(H).
(I) Proceedings After Judgment.
(1) If the garnishment remains in effect until entry of judgment in favor of the plaintiff against the defendant, the garnished property or obligation may be applied to the satisfaction of the judgment in the manner provided in MCR 3.101(I), (J), (M), and (O).
(2) MCR 3.101(P) and (Q) and MCR 3.103(I)(2) apply to prejudgment garnishment.
(J) Costs and Fees; Default; Contempt; Judicial Discretion. MCR 3.101(R), (S), and (T) apply to prejudgment garnishment.
(Current as of 06/30/2006)
Rule 3.103 Attachment
(B) Motion for Writ.
(1) The plaintiff may seek a writ of attachment by filing an ex parte motion supported by an affidavit setting forth specific facts showing that
(a) at the time of the execution of the affidavit the defendant is indebted to the plaintiff in a stated amount on a contract in excess of all setoffs,
(b) the defendant is subject to the judicial jurisdiction of the state, and
(c) after diligent effort the plaintiff cannot serve the defendant with process.
In an action brought on a tort claim or a foreign judgment, subrules (B)(2) and (3), respectively, apply.
(2) In a tort action the following provisions apply:
(a) Instead of the allegations required by subrule (B)(1)(a), the affidavit in support of the motion must describe the injury claimed and state that the affiant in good faith believes that the defendant is liable to the plaintiff in a stated amount. The other requirements of subrule (B)(1) apply.
(b) If the writ is issued the court shall specify the amount or value of property to be attached.
(3) In an action brought on a foreign judgment, instead of the allegations required by subrule (B)(1), the affidavit in support of the motion must show that
(a) the defendant is indebted to the plaintiff on a foreign judgment in a stated amount in excess of all setoffs,
(b) the defendant is not subject to the jurisdiction of the state or that after diligent effort the plaintiff cannot serve the defendant with process.
(C) Issuance of Writ.
(1) On a finding that the writ is available under this rule and that the affidavit states a sufficient basis for issuance of the writ, the judge to whom the action is assigned may issue the writ.
(2) The judge's order shall specify what further steps, if any, must be taken by the plaintiff to notify the defendant of the action and the attachment.
(D) Contents of Writ. The writ of attachment must command the sheriff or other officer to whom it is directed
(1) to attach so much of the defendant's real and personal property not exempt from execution as is necessary to satisfy the plaintiff's demand and costs, and
(2) to keep the property in a secure place to satisfy any judgment that may be recovered by the plaintiff in the action until further order of the court.
(E) Execution of Writ; Subsequent Attachments.
(1) The sheriff or other officer to whom a writ of attachment is directed shall execute the writ by seizing and holding so much of the defendant's property not exempt from execution, wherever found within the county, as is necessary to satisfy the plaintiff's demand and costs. If insufficient property is seized, then the officer shall seize other property of the defendant not exempt from execution, wherever found within Michigan, as is necessary when added to that already seized, to satisfy the plaintiff's demand and costs. The property seized must be inventoried by the officer and appraised by two disinterested residents of the county in which the property was seized. After being sworn under oath to make a true appraisal, the appraisers shall make and sign an appraisal. The inventory and appraisal must be filed and a copy served on the parties under MCR 2.107.
(2) In subsequent attachments of the same property while in the hands of the officer, the original inventory and appraisal satisfy the requirement of subrule (E)(1).
(F) Attachment of Realty; Stock.
(1) The officer may seize an interest in real estate by depositing a certified copy of the writ of attachment, including a description of the land affected, with the register of deeds for the county in which the land is located. It is not necessary that the officer enter on the land or be within view of it.
(2) Shares of stock or the interest of a stockholder in a domestic corporation must be seized in the manner provided for the seizure of that property on execution.
(G) Animals or Perishable Property; Sale; Distribution of Proceeds.
(1) When any of the property attached consists of animals or perishable property, the court may order the property sold and the money from the sale brought into court, to await the order of the court.
(2) After the order for a sale is entered, the officer having the property shall advertise and sell it in the manner that personal property of like character is required to be advertised and sold on execution. The officer shall deposit the proceeds with the clerk of the court in which the action is pending.
(3) If the plaintiff recovers judgment, the court may order the money paid to the plaintiff. If the judgment is entered against the plaintiff or the suit is dismissed or the attachment is dissolved, the court shall order the money paid to the defendant or other person entitled to it.
(H) Dissolution of Attachment.
(1) Except in an action brought on a foreign judgment, if the defendant submits to the jurisdiction of the court, the court shall dissolve the attachment.
(2) A person who owns, possesses, or has an interest in attached property may move at any time to dissolve the attachment. The defendant may move to dissolve the attachment without submitting to the jurisdiction of the court.
(a) When a motion for dissolution of attachment is filed, the court shall enter an order setting a time and place for hearing the motion, and may issue subpoenas to compel witnesses to attend.
(b) The plaintiff must be served with notice under MCR 2.107 at least 3 days before the hearing unless the court's order prescribes a different notice requirement.
(c) At the hearing, the proofs are heard in the same manner as in a nonjury trial. If the court decides that the defendant was not subject to the jurisdiction of the state or that the property was not subject to or was exempt from attachment, it shall dissolve the attachment and restore the property to the defendant, and the attachment may be dissolved for any other sufficient reason. The court may order the losing party to pay the costs of the dissolution proceeding.
(3) If the action is dismissed or judgment is entered for the defendant, the attachment is dissolved.
(I) Satisfaction of Judgment.
(1) If the attachment remains in effect until the entry of judgment against the defendant, the attached property may be applied to the satisfaction of the judgment, including interest and costs, in the same manner as in the case of an execution.
(2) If the court does not acquire personal jurisdiction over the defendant, either by service or by the defendant's appearance, a judgment against the defendant is not binding beyond the value of the attached property.
(Current as of 06/30/2006)
Rule 3.104 Installment Payment Orders
(B) Consideration of Motion. The motion will be granted without further hearing unless the plaintiff files, and serves on the defendant, written objections within 14 days after the service date of the defendant's motion. If objections are filed, the clerk must promptly present the motion and objections to the court. The court will decide the motion based on the papers filed or notify the parties that a hearing will be required. Unless the court schedules the hearing, the moving party is responsible for noticing the motion for hearing.
(C) Failure to Comply with Installment Order. If the defendant fails to make payments pursuant to the order for installment payments, the plaintiff may file and serve on the defendant a motion to set aside the order for installment payments. Unless a hearing is requested within 14 days after service of the motion, the order to set aside the order for installment payments will be entered.
(D) Request After Failure to Comply with Previous Order. If the defendant moves for an order for installment payments within 91 days after a previous installment order has been set aside, unless good cause is shown the court shall assess costs against the defendant as a condition of entry of the new order.
(Current as of 06/30/2006)
Rule 3.105 Claim and Delivery
(A) Nature of Action; Replevin. Claim and delivery is a civil action to recover
(1) possession of goods or chattels which have been unlawfully taken or unlawfully detained, and
(2) damages sustained by the unlawful taking or unlawful detention.
A statutory reference to the action of replevin is to be construed as a reference to the action of claim and delivery.
(B) Rules Applicable. A claim and delivery action is governed by the rules applicable to other civil actions, except as provided in MCL 600.2920, and this rule.
(C) Complaint; Joinder of Claims; Interim Payments. A claim and delivery complaint must:
(1) specifically describe the property claimed;
(2) state the value of the property claimed (which will be used only to set the amount of bond and not as an admission of value);
(3) state if the property claimed is an independent piece of property or a portion of divisible property of uniform kind, quality, and value; and
(4) specifically describe the nature of the claim and the basis for the judgment requested.
If the action is based on a security agreement, a claim for the debt may be joined as a separate count in the complaint. If the plaintiff, while the action is pending, receives interim payments equal to the amount originally claimed, the action must be dismissed.
(D) Answer. An answer to a claim and delivery complaint may concede the claim for possession and yet contest any other claim.
(E) Possession Pending Final Judgment.
(1) Motion for Possession Pending Final Judgment. After the complaint is filed, the plaintiff may file a verified motion requesting possession pending final judgment. The motion must
(a) describe the property to be seized, and
(b) state sufficient facts to show that the property described will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before final judgment unless the property is taken into custody by court order.
(2) Court Order Pending Hearing. After a motion for possession pending final judgment is filed, the court, if good cause is shown, must order the defendant to
(a) refrain from damaging, destroying, concealing, disposing of, or using so as to substantially impair its value, the property until further order of the court; and
(b) appear before the court at a specified time to answer the motion.
(3) Hearing on Motion for Possession Pending Final Judgment.
(a) At least 7 days before a hearing on a motion filed under this subrule, the defendant must be served with
(i) a copy of the motion; and
(ii) an order entered under subrule (E)(2).
(b) At the hearing, each party may present proofs. To obtain possession before judgment, the plaintiff must establish
(i) that the plaintiff's right to possession is probably valid; and
(ii) that the property will be damaged, destroyed, concealed, disposed of, or used so as to substantially impair its value, before trial.
(c) Adjournment. A court may not
(i) grant an adjournment of this hearing on the basis that a defendant has not yet answered the complaint or the motion filed under this subrule; or
(ii) allow a hearing on this motion if the hearing date has been adjourned more than 56 days with the assent of the plaintiff, unless the plaintiff files a new motion which includes recitations of any payments made by the defendant after the original motion was filed.
(4) Order for Custody Pending Final Judgment. After proofs have been taken on the plaintiff's motion for possession pending final judgment, the court may order whatever relief the evidence requires. This includes:
(a) denying the motion;
(b) leaving the defendant in possession of the property and restraining the defendant from damaging, destroying, concealing, or disposing of the property.
The court may condition the defendant's continued possession by requiring the defendant to
(i) furnish a penalty bond, payable to the plaintiff, of not less than $100 and at least twice the value of the property stated in the complaint; and
(ii) agree that he or she will surrender the property to the person adjudged entitled to possession and will pay any money that may be recovered against him or her in the action;
(c) ordering the sheriff or court officer to seize the property within 21 days and either hold it or deliver it to the plaintiff. The court may condition the plaintiff's possession by requiring the plaintiff to
(i) furnish a penalty bond payable to the defendant, and to the sheriff or court officer, of not less than $100 and at least twice the value of the property stated in the complaint; and
(ii) agree that he or she will surrender the property to the person adjudged entitled to possession, diligently prosecute the suit to final judgment, and pay any money that may be recovered against him or her in the action.
A bond required in a claim and delivery action must be approved by and filed with the court within the time the order provides.
(F) Seizure. A copy of an order issued under subrule (E)(4)(c) must be delivered to the sheriff or court officer, who must
(1) seize the property described in the order;
(2) serve a copy of the order on the defendant, under MCR 2.107; and
(3) file a return with the court showing seizure and service.
(G) Custody; Delivery. After seizing the property, the sheriff or court officer shall keep it in a secure place and deliver it in accordance with the court order. The sheriff or court officer is entitled to receive the lawful fees for seizing the property and the necessary expenses for seizing and keeping it.
(H) Judgment.
(1) The judgment must determine
(a) the party entitled to possession of the property,
(b) the value of the property,
(c) the amount of any unpaid debt, and
(d) any damages to be awarded.
(2) If the property is not in the possession of the party who is entitled to possession, a judgment must order the property to be immediately delivered to that party.
(3) If the action is tried on the merits, the value of the property and the damages are determined by the trier of fact.
(4) If the defendant has been deprived of the property by a prejudgment order and the main action is dismissed, the defendant may apply to the court for default judgment under MCR 2.603.
(5) If the plaintiff takes a default judgment, the value of the property and the damages are determined under MCR 2.603. A defendant who appeared at a show-cause proceeding is deemed to have filed an appearance.
(6) The party adjudged entitled to possession of the property described may elect to take judgment for the value of the property instead of possession. The judgment value may not exceed the unpaid debt, if any, secured by such property.
(7) The liability of a surety on a bond given under this rule may be determined on motion under MCR 3.604.
(I) Costs. Costs may be taxed in the discretion of the court. Costs may include the cost of a bond required by the court, and the costs of seizing and keeping the property.
(J) Execution.
(1) The execution issued on a judgment in a claim and delivery action must command the sheriff or court officer
(a) to levy the prevailing party's damages and costs on the property of the opposite party, as in other executions against property; and
(b) if the property described in the judgment is found in the possession of the defendant, to seize the property described in the judgment and deliver it to the prevailing party; or, if the property is not found in the possession of the defendant, to levy the value of it. The value may not exceed the total of the unpaid debt, costs, and damages.
(2) Execution may not issue on a judgment in a claim and delivery action if more than 28 days have passed from the signing of the judgment, unless
(a) the plaintiff files a motion for execution which must include, if money has been paid on the judgment, the amount paid and the conditions under which it was accepted; and
(b) a hearing is held after the defendant has been given notice and an opportunity to appear.
(Current as of 06/30/2006)
Rule 3.106 Procedures Regarding Orders for the Seizure of Property and Orders of Eviction
(A) Scope of Rule. This rule applies to orders for the seizure of property and orders of eviction.
(B) Persons Who May Seize Property or Conduct Evictions. The persons who may seize property or conduct evictions are those persons named in MCR 2.103(B), and they are subject to the provisions of this rule unless a provision or a statute specifies otherwise.
(1) A court may provide that property shall be seized and evictions conducted only by
(a) court officers and bailiffs serving that court;
(b) sheriffs and deputy sheriffs;
(c) officers of the Department of State Police in an action in which the state is a party; and
(d) police officers of an incorporated city or village in an action in which the city or village is a party.
(2) Each court must post, in a public place at the court, a list of those persons who are serving as court officers or bailiffs. The court must provide the State Court Administrative Office with a copy of the list, and must notify the State Court Administrative Office of any changes.
(C) Appointment of Court Officers. Court officers may be appointed by a court for a term not to exceed 2 years.
(1) The appointment shall be made by the chief judge. Two or more chief judges may jointly appoint court officers for their respective courts.
(2) The appointing court must specify the nature of the court officer's employment relationship at the time of appointment.
(3) The appointing court must maintain a copy of each court officer's application, as required by the State Court Administrative Office.
(4) The State Court Administrative Office shall develop a procedure for the appointment and supervision of court officers, including a model application form. Considerations shall include, but are not limited to, an applicant's character, experience, and references.
(D) Conditions of Service as a Court Officer or Bailiff. Court officers and bailiffs must
(1) post a surety bond pursuant to MCR 8.204;
(2) provide the names and addresses of all financial institutions in which they deposit funds obtained under this rule, and the respective account numbers; and
(3) provide the names and addresses of those persons who regularly provide services to them in the seizure of property or evictions.
(E) Forms. The State Court Administrative Office shall publish forms approved for use with regard to the procedures described in this rule.
(F) Procedures Generally.
(1) All persons specified in MCR 2.103(B) must carry and display identification authorized by the court or the agency that they serve.
(2) A copy of the order for seizure of property or eviction shall be served on the defendant or the defendant's agent, or left or posted on the premises in a conspicuous place. If property is seized from any other location, a copy of the order shall be mailed to the defendant's last known address.
(G) Procedures Regarding Orders for Seizure of Property.
(1) Orders for seizure of property shall be issued pursuant to statute and endorsed upon receipt.
(2) No funds may be collected pursuant to an order for seizure of property prior to service under subrule (F)(2).
(3) An inventory and receipt shall be prepared upon seizure of property or payment of funds.
(a) The original shall be filed with the court within 7 days of the seizure or payment.
(b) A copy shall be
(i) provided to the parties or their respective attorneys or agents and posted on the premises in a conspicuous place; if the property is seized from any other location, a copy shall be mailed to the nonprevailing party's last known address, and
(ii) retained by the person who seized the property.
(4) Property seized shall be disposed of according to law.
(5) Within 21 days, and as directed by the court, any money that is received shall be paid to the court or deposited in a trust account for payment to the prevailing party or that party's attorney.
(6) Costs allowed by statute shall be paid according to law.
(a) Copies of all bills and receipts for service shall be retained for one year by the person serving the order.
(b) Statutory collection fees shall be paid in proportion to the amount received.
(c) There shall be no payment except as provided by law.
(7) Within 14 days after the expiration of the order or satisfaction of judgment, whichever is first, the following shall be filed with the court and a copy provided to the prevailing party or that party's attorney:
(a) a report summarizing collection activities, including an accounting of all money or property collected,
(b) a report that collection activities will continue pursuant to statute, if applicable, or
(c) a report that no collection activity occurred.
(H) Procedures Regarding Orders of Eviction. Copies of all bills and receipts for services shall be retained by the person serving the order for one year.
(Current as of 06/30/2006)
Rule 3.110 Stockholders' Liability Proceedings
(A) Scope of Rule. This rule applies to actions brought under MCL 600.2909.
(B) When Action May Be Brought. An action against stockholders in which it is claimed that they are individually liable for debts of a corporation may not be brought until:
(1) a judgment has been recovered against the corporation for the indebtedness;
(2) an execution on the judgment has been issued to the county in which the corporation has its principal office or carries on its business; and
(3) the execution has been returned unsatisfied in whole or in part.
(C) Order for List of Stockholders. When the conditions set out in subrule (B) are met, the plaintiff may apply to the court that entered the judgment to order a list of stockholders. The court shall enter an order to be served on the secretary or other proper officer of the corporation, requiring the officer, within the time provided in the order, to file a statement under oath listing the names and addresses of all persons who appear by the corporation books to have been, or who the officer has reason to believe were, stockholders when the debt accrued, and the amount of stock held by each of them.
(D) Commencement of Action; Complaint. An action against the stockholders to impose personal liability on them for the debt of the corporation may be commenced and carried on as other civil actions under these rules. The complaint must, among other things, state:
(1) that the plaintiff has obtained a judgment against the corporation and the amount;
(2) that execution has been issued and returned unsatisfied in whole or in part, and the amount remaining unpaid;
(3) that the persons named as defendants are the persons listed in the statement filed by the officer of the corporation under subrule (C);
(4) the amount of stock held by each defendant, or that the plaintiff could not, with reasonable diligence, ascertain the amounts;
(5) the consideration received by the corporation for the debt on which judgment was rendered;
(6) a request for judgment against the stockholders in favor of the plaintiff for the amount alleged to be due from the corporation.
(E) Judgment Against Corporation As Evidence. At the trial the judgment against the corporation and the amount remaining unpaid are prima facie evidence of the amount due to the plaintiff but are not evidence that the debt on which the judgment was rendered is one for which the defendants are personally liable.
(F) Entry of Judgment Against Defendant. If a defendant admits the facts set forth in the complaint or defaults by failing to answer, or if the issues are determined against the defendant, judgment may be entered against him or her for the amount of the judgment against the corporation remaining unpaid, on proof that the debt is one for which that defendant is personally liable as a stockholder.
(G) Order of Apportionment; Execution. After judgment has been entered against all or some of the defendants, the court may apportion among these defendants the sum for which they have been adjudged liable pro rata according to the stock held by each. If any defendant fails to pay the amount apportioned against that defendant within 21 days, execution may issue as in other civil actions.
(H) Reapportionment. If execution is returned unsatisfied in whole or in part against any of the defendants as to whom apportionment has been made, the court has the power and the duty on application by the plaintiff to reapportion the sum remaining uncollected on the basis of subrule (G) among the remaining defendants adjudged liable. Execution may issue for the collection of these amounts.
(I) Contribution Among Stockholders. A stockholder who has been compelled to pay more than his or her pro rata share of the debts of the corporation, according to the amount of stock held, is entitled to contribution from other stockholders who are also liable for the debt and who have not paid their portions.
(Current as of 06/30/2006)
Rule 3.201 Applicability of Rules
(A) Subchapter 3.200 applies to
(2) proceedings that are ancillary or subsequent to the actions listed in subrule (A)(1) and that relate to
(a) the custody of minors,
(b) visitation with minors, or
(c) the support of minors and spouses or former spouses.
(B) As used in this subchapter with regard to child support, the terms "minor" or "child" may include children who have reached the age of majority, in the circumstances where the legislature has so provided.
(C) Except as otherwise provided in this subchapter, practice and procedure in domestic relations actions is governed by other applicable provisions of the Michigan Court Rules.
(D) When used in this subchapter, unless the context otherwise indicates:
(1) "Case" means an action initiated in the family division of the circuit court by:
(a) submission of an original complaint, petition, or citation;
(b) acceptance of transfer of an action from another court or tribunal; or
(c) filing or registration of a foreign judgment or order.
(2) "File" means the repository for collection of the pleadings and other documents and materials related to a case. A file may include more than one case involving a family.
(3) "Jurisdiction" means the authority of the court to hear cases and make decisions and enter orders on cases.
(Current as of 06/30/2006)
Rule 3.202 Capacity to Sue
(A) Minors and Incompetent Persons. Except as provided in subrule (B), minors and incompetent persons may sue and be sued as provided in MCR 2.201.
(B) Emancipated Minors. An emancipated minor may sue and be sued in the minor's own name, as provided in MCL 722.4e(1)(b).
(Current as of 06/30/2006)
Rule 3.203 Service of Notice and Court Papers in Domestic Relations Cases
(A) Manner of Service. Unless otherwise required by court rule or statute, the summons and complaint must be served pursuant to MCR 2.105. In cases in which the court retains jurisdiction
(1) notice must be provided as set forth in the statute requiring the notice. Unless otherwise required by court rule or statute, service by mail shall be to a party's last known mailing address, and
(2) court papers and notice for which the statute or court rule does not specify the manner of service must be served as provided in MCR 2.107, except that service by mail shall be to a party's last known mailing address.
(B) Place of Service; After Entry of Judgment or Order. When a domestic relations judgment or order requires the parties to inform the friend of the court office of any changes in their mailing address, a party's last known mailing address means the most recent address
(1) that the party provided in writing to the friend of the court office, or
(2) set forth in the most recent judgment or order entered in the case, or
(3) the address established by the friend of the court office pursuant to subrule (D).
(C) Place of Service; Before Entry of Judgment or Order. After a summons and complaint has been filed and served on a party, but before entry of a judgment or order that requires the parties to inform the friend of the court of any changes in their mailing address, the last known mailing address is the most recent address
(1) set forth in the pleadings, or
(2) that a party provides in writing to the friend of the court office.
(D) Administrative Change of Address. The friend of the court office shall change a party's address administratively pursuant to the policy established by the state court administrator for that purpose when:
(1) a party's address changes in another friend of the court office pursuant to these rules, or
(2) notices and court papers are returned to the friend of the court office as undeliverable.
(E) Service on Nonparties. Notice to a nonparty must be provided as set forth in the statute requiring the notice. Absent statutory direction, the notice may be provided by regular mail. Absent statutory direction, court papers initiating an action against nonparties to enforce a notice must be served in the same manner as a summons and complaint pursuant to MCR 2.105.
(F) Confidential Addresses. When a court order makes a party's address confidential, the party shall provide an alternative address for service of notice and court papers.
(G) Notice to Friend of the Court. If a child of the parties or a child born during the marriage is under the age of 18, or if a party is pregnant, or if child support or spousal support is requested, the parties must provide the friend of the court with a copy of all pleadings and other papers filed in the action. The copy must be marked "friend of the court" and submitted to the court clerk at the time of filing. The court clerk must send the copy to the friend of the court.
(H) Notice to Prosecuting Attorney. In an action for divorce or separate maintenance in which a child of the parties or a child born during the marriage is under the age of 18, or if a party is pregnant, the plaintiff must serve a copy of the summons and complaint on the prosecuting attorney when required by law. Service must be made at the time of filling by providing the court clerk with an additional copy marked "prosecutting attorney". The court clerk must send the copy to the prosecuting attorney.
(I) Service of Informational Pamphlet. If a child of the parties or a child born during the marriage is under the age of 18, or if a party is pregnant, or if child support or spousal support is requested, the plaintiff must serve with the complaint a copy of the friend of the court informational pamphlet required by MCL 552.505(a). The proof of service must state that service of the informational pamphlet has been made.
(Current as of 06/30/2006)
Rule 3.204 Proceedings Affecting Minors
(B) If an action is pending in circuit court for the support or custody of a minor, or for visitation with a minor, or the circuit court has continuing jurisdiction over such matters because of a prior action, a subsequent action for support, custody, or visitation with regard to that minor must be initiated as an ancillary proceeding.
(C) If a new action for support is filed in a circuit court in which a party has an existing or pending support obligation, the new case must be assigned to the same judge to whom the other case is assigned, pursuant to MCR 8.111(D).
(D) In a case involving a dispute regarding the custody of a minor child, the court may, on motion of a party or on its own initiative, for good cause shown, appoint a guardian ad litem to represent the child and assess the costs and reasonable fees against the parties involved in full or in part.
(Current as of 06/30/2006)
Rule 3.205 Prior and Subsequent Orders and Judgments Affecting Minors
(A) Jurisdiction. If an order or judgment has provided for continuing jurisdiction of a minor and proceedings are commenced in another Michigan court having separate jurisdictional grounds for an action affecting that minor, a waiver or transfer of jurisdiction is not required for the full and valid exercise of jurisdiction by the subsequent court.
(B) Notice to Prior Court, Friend of the Court, Juvenile Officer, and Prosecuting Attorney.
(1) As used in this rule, "appropriate official" means the friend of the court, juvenile officer, or prosecuting attorney, depending on the nature of the prior or subsequent court action and the court involved.
(2) If a minor is known to be subject to the prior continuing jurisdiction of a Michigan court, the plaintiff or other initiating party must mail written notice of proceedings in the subsequent court to the attention of
(a) the clerk or register of the prior court, and
(b) the appropriate official of the prior court.
(3) The notice must be mailed at least 21 days before the date set for hearing. If the fact of continuing jurisdiction is not then known, notice must be given immediately when it becomes known.
(4) The notice requirement of this subrule is not jurisdictional and does not preclude the subsequent court from entering interim orders before the expiration of the 21-day period, if required by the best interests of the minor.
(C) Prior Orders.
(1) Each provision of a prior order remains in effect until the provision is superseded, changed, or terminated by a subsequent order.
(2) A subsequent court must give due consideration to prior continuing orders of other courts, and may not enter orders contrary to or inconsistent with such orders, except as provided by law.
(D) Duties of Officials of Prior and Subsequent Courts.
(1) Upon receipt of the notice required by subrule (B), the appropriate official of the prior court
(a) must provide the subsequent court with copies of all relevant orders then in effect and copies of relevant records and reports, and
(b) may appear in person at proceedings in the subsequent court, as the welfare of the minor and the interests of justice require.
(2) Upon request of the prior court, the appropriate official of the subsequent court
(a) must notify the appropriate official of the prior court of all proceedings in the subsequent court, and
(b) must send copies of all orders entered in the subsequent court to the attention of the clerk or register and the appropriate official of the prior court.
(3) If a circuit court awards custody of a minor pursuant to MCL 722.26b, the clerk of the circuit court must send a copy of the judgment or order of disposition to the probate court that has prior or continuing jurisdiction of the minor as a result of the guardianship proceedings, regardless whether there is a request.
(4) Upon receipt of an order from the subsequent court, the appropriate official of the prior court must take the steps necessary to implement the order in the prior court.
(Current as of 06/30/2006)
Rule 3.206 Pleading
(A) Information in Complaint.
(1) Except for matters considered confidential by statute or court rule, in all domestic relations actions, the complaint must state
(a) the allegations required by applicable statutes;
(b) the residence information required by statute;
(c) the complete names of all parties; and
(d) the complete names and dates of birth of any minors involved in the action, including all minor children of the parties and all minor children born during the marriage.
(2) In a case that involves a minor, or if child support is requested, the complaint also must state whether any Michigan court has prior continuing jurisdiction of the minor. If so, the complaint must specify the court and the file number.
(3) In a case in which the custody of a minor is to be determined, the complaint or an affidavit attached to the complaint also must state the information required by MCL 722.1209.
(4) The caption of the complaint must also contain either (a) or (b) as a statement of the attorney for the plaintiff or petitioner, or of a plaintiff or petitioner appearing without an attorney:
(a) There is no other pending or resolved action within the jurisdiction of the family division of the circuit court involving the family or family members of the person[s] who [is/are] the subject of the complaint or petition.
(b) An action within the jurisdiction of the family division of the circuit court involving the family or family members of the person[s] who [is/are] the subject of the complaint or petition has been previously filed in [this court]/[______Court], where it was given docket number ______ and was assigned to Judge ________. The action [remains]/[is no longer] pending.
(5) In an action for divorce, separate maintenance, annulment of marriage, or affirmation of marriage, regardless of the contentions of the parties with respect to the existence or validity of the marriage, the complaint also must state
(a) the names of the parties before the marriage;
(b) whether there are minor children of the parties or minor children born during the marriage;
(c) whether a party is pregnant;
(d) the factual grounds for the action, except that in an action for divorce or separate maintenance the grounds must be stated in the statutory language, without further particulars; and
(e) whether there is property to be divided.
(6) A party who requests spousal support in an action for divorce, separate maintenance, annulment, affirmation of marriage, or spousal support, must allege facts sufficient to show a need for such support and that the other party is able to pay.
(7) A party who requests an order for personal protection or for the protection of property, including but not limited to restraining orders and injunctions against domestic violence, must allege facts sufficient to support the relief requested.
(B) Verified Statement.
(1) In an action involving a minor, or if child support or spousal support is requested, the party seeking relief must attach a verified statement to the copies of the papers served on the other party and provided to the friend of the court, stating
(a) the last known telephone number, post office address, residence address, and business address of each party;
(b) the social security number and occupation of each party;
(c) the name and address of each party's employer;
(d) the estimated weekly gross income of each party;
(e) the driver's license number and physical description of each party, including eye color, hair color, height, weight, race, gender, and identifying marks;
(f) any other names by which the parties are or have been known;
(g) the name, age, birth date, social security number, and residence address of each minor involved in the action, as well as of any other minor child of either party;
(h) the name and address of any person, other than the parties, who may have custody of a minor during the pendency of the action;
(i) the kind of public assistance, if any, that has been applied for or is being received by either party or on behalf of a minor, and the AFDC and recipient identification numbers; if public assistance has not been requested or received, that fact must be stated; and
(j) the health care coverage, if any, that is available for each minor child; the name of the policyholder; the name of the insurance company, health care organization, or health maintenance organization; and the policy, certificate, or contract number.
(2) The information in the verified statement is confidential, and is not to be released other than to the court, the parties, or the attorneys for the parties, except on court order. For good cause, the addresses of a party and minors may be omitted from the copy of the statement that is served on the other party.
(3) If any of the information required to be in the verified statement is omitted, the party seeking relief must explain the omission in a sworn affidavit, to be filed with the court.
(C) Attorney Fees and Expenses.
(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.
(Current as of 06/30/2006)
Rule 3.207 Ex Parte, Temporary, and Protective Orders
(A) Scope of Relief. The court may issue ex parte and temporary orders with regard to any matter within its jurisdiction, and may issue protective orders against domestic violence as provided in subchapter 3.700.
(B) Ex Parte Orders.
(1) Pending the entry of a temporary order, the court may enter an ex parte order if the court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.
(2) The moving party must arrange for the service of true copies of the ex parte order on the friend of the court and the other party.
(3) An ex parte order is effective upon entry and enforceable upon service.
(4) An ex parte order remains in effect until modified or superseded by a temporary or final order.
(5) An ex parte order providing for child support, custody, or visitation pursuant to MCL 722.27a, must include the following notice:
"Notice:
"1. You may file a written objection to this order or a motion to modify or rescind this order. You must file the written objection or motion with the clerk of the court within 14 days after you were served with this order. You must serve a true copy of the objection or motion on the friend of the court and the party who obtained the order.
"2. If you file a written objection, the friend of the court must try to resolve the dispute. If the friend of the court cannot resolve the dispute and if you wish to bring the matter before the court without the assistance of counsel, the friend of the court must provide you with form pleadings and written instructions and must schedule a hearing with the court.
"3. The ex parte order will automatically become a temporary order if you do not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed unless changed by a later court order."
(6) In all other cases, the ex parte order must state that it will automatically become a temporary order if the other party does not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. The written objection or motion and the request for a hearing must be filed with the clerk of the court, and a true copy provided to the friend of the court and the other party, within 14 days after the order is served.
(a) If there is a timely objection or motion and a request for a hearing, the hearing must be held within 21 days after the objection or motion and request are filed.
(b) A change that occurs after the hearing may be made retroactive to the date the ex parte order was entered.
(7) The provisions of MCR 3.310 apply to temporary restraining orders in domestic relations cases.
(C) Temporary Orders.
(1) A request for a temporary order may be made at any time during the pendency of the case by filing a verified motion that sets forth facts sufficient to support the relief requested.
(2) A temporary order may not be issued without a hearing, unless the parties agree otherwise or fail to file a written objection or motion as provided in subrules (B)(5) and (6).
(3) A temporary order may be modified at any time during the pendency of the case, following a hearing and upon a showing of good cause.
(4) A temporary order must state its effective date and whether its provisions may be modified retroactively by a subsequent order.
(5) A temporary order remains in effect until modified or until the entry of the final judgment or order.
(6) A temporary order not yet satisfied is vacated by the entry of the final judgment or order, unless specifically continued or preserved. This does not apply to support arrearages that have been assigned to the state, which are preserved unless specifically waived or reduced by the final judgment or order.
(Current as of 06/30/2006)
Rule 3.208 Friend of the Court
(B) Enforcement. The friend of the court is responsible for initiating proceedings to enforce an order or judgment for support, visitation, or custody.
(1) If a party has failed to comply with an order or judgment, the friend of the court may petition for an order to show cause why the party should not be held in contempt.
(2) The order to show cause must be served personally or by ordinary mail at the party's last known address.
(3) The hearing on the order to show cause may be held no sooner than seven days after the order is served on the party. If service is by ordinary mail, the hearing may be held no sooner than nine days after the order is mailed.
(4) If the party fails to appear in response to the order to show cause, the court may issue an order for arrest.
(5) The relief available under this rule is in addition to any other relief available by statute.
(6) The friend of the court may petition for an order of arrest at any time, if immediate action is necessary.
(C) Allocation and Distribution of Payments.
(1) Except as otherwise provided in this subrule, all payments shall be allocated and distributed as required by the guidelines established by the state court administrator for that purpose.
(2) If the court determines that following the guidelines established by the state court administrator would produce an unjust result in a particular case, the court may order that payments be made in a different manner. The order must include specific findings of fact that set forth the basis for the court's decision, and must direct the payer to designate with each payment the name of the payer and the payee, the case number, the amount, and the date of the order that allows the special payment.
(3) If a payer with multiple cases makes a payment directly to the friend of the court rather than through income withholding, the payment shall be allocated among all the cases unless the payer requests a different allocation in writing at the time of payment and provides the following information about each case for which payment is intended:
(a) the name of the payer,
(b) the name of the payee,
(c) the case number, and
(d) the amount designated for that case.
(4) A notice of income withholding may not be used by the friend of the court or the state disbursement unit to determine the specific allocation or distribution of payments.
(D) Notice to Attorneys.
(1) Copies of notices required to be given to the parties also must be sent to the attorneys of record.
(2) The notice requirement of this subrule remains in effect until 21 days after judgment is entered or until postjudgment matters are concluded, whichever is later.
(Current as of 06/30/2006)
Rule 3.209 Suspension of Enforcement and Dismissal
(A) Suspension of Enforcement.
(1) Because of a reconciliation or for any other reason, a party may file a motion to suspend the automatic enforcement of a support obligation by the friend of the court. Such a motion may be filed before or after the entry of a judgment.
(2) A support obligation cannot be suspended except by court order.
(B) Dismissal. Unless the order of dismissal specifies otherwise, dismissal of an action under MCR 2.502 or MCR 2.504 cancels past-due child support, except for that owed to the State of Michigan.
(Current as of 06/30/2006)
Rule 3.210 Hearings and Trials
(A) In General.
(1) Proofs or testimony may not be taken in an action for divorce or separate maintenance until the expiration of the time prescribed by the applicable statute, except as otherwise provided by this rule.
(2) In cases of unusual hardship or compelling necessity, the court may, upon motion and proper showing, take testimony and render judgment at any time 60 days after the filing of the complaint.
(3) Testimony may be taken conditionally at any time for the purpose of perpetuating it.
(4) Testimony must be taken in person, except that the court may allow testimony to be taken by telephone or other electronically reliable means, in extraordinary circumstances.
(B) Default Cases.
(1) Default cases are governed by MCR 2.603.
(2) A judgment of divorce, separate maintenance, or annulment may not be entered as a matter of course on the default of the defendant because of failure to appear at the hearing or by consent. Every case must be heard in open court on proofs taken, except as otherwise provided by statute or court rule.
(3) If a party is in default, proofs may not be taken unless the judgment fee has been deposited with the court clerk and the proposed judgment has been given to the court.
(4) If the court determines that the proposed judgment is inappropriate, the party who prepared it must, within 14 days, present a modified judgment in conformity with the court's opinion.
(5) If the court determines not to enter the judgment, the court must direct that the judgment fee be returned to the person who deposited it.
(C) Custody of a Minor.
(1) When the custody of a minor is contested, a hearing on the matter must be held within 56 days
(a) after the court orders, or
(b) after the filing of notice that a custody hearing is requested,
unless both parties agree to mediation under MCL 552.513 and mediation is unsuccessful, in which event the hearing must be held within 56 days after the final mediation session.
(2) If a custody action is assigned to a probate judge pursuant to MCL 722.26b, a hearing on the matter must be held by the probate judge within 56 days after the case is assigned.
(3) The court must enter a decision within 28 days after the hearing.
(4) The notice required by this subrule may be filed as a separate document, or may be included in another paper filed in the action if the notice is mentioned in the caption.
(5) The court may interview the child privately to determine if the child is of sufficient age to express a preference regarding custody, and, if so, the reasonable preference of the child. The court shall focus the interview on these determinations, and the information received shall be applied only to the reasonable preference factor.
(6) If a report has been submitted by the friend of the court, the court must give the parties an opportunity to review the report and to file objections before a decision is entered.
(7) The court may extend for good cause the time within which a hearing must be held and a decision rendered under this subrule.
(8) In deciding whether an evidentiary hearing is necessary with regard to a postjudgment motion to change custody, the court must determine, by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion.
(D) The court must make findings of fact as provided in MCR 2.517, except that
(1) findings of fact and conclusions of law are required on contested postjudgment motions to modify a final judgment or order, and
(2) the court may distribute pension, retirement, and other deferred compensation rights with a qualified domestic relations order, without first making a finding with regard to the value of those rights.
(Current as of 06/30/2006)
Rule 3.211 Judgments and Orders
(A) Each separate subject in a judgment or order must be set forth in a separate paragraph that is prefaced by an appropriate heading.
(B) A judgment of divorce, separate maintenance, or annulment must include
(1) the insurance and dower provisions required by MCL 552.101;
(2) a determination of the rights of the parties in pension, annuity, and retirement benefits, as required by MCL 552.101(4);
(3) a determination of the property rights of the parties; and
(4) a provision reserving or denying spousal support, if spousal support is not granted; a judgment silent with regard to spousal support reserves it.
(C) A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge's successor,
(2) the person awarded custody must promptly notify the friend of the court in writing when the minor is moved to another address, and
(3) a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
(D) Uniform Support Orders
(1) Any provisions regarding child support or spousal support must be prepared on the latest version of the Uniform Support Order drafted by the state court administrative office and approved by the Supreme Court. This order must accompany any judgment or order affecting child support or spousal support, and both documents must be signed by the judge. If only child support or spousal support is ordered, then only the Uniform Support Order must be submitted to the court for entry. The Uniform Support Order shall govern if the terms of the judgment or order conflict with the Uniform Support Order.
(2) No judgment or order concerning a minor or a spouse shall be entered unless either:
(a) the final judgment or order incorporates by reference a Uniform Support Order, or
(b) the final judgment or order states that no Uniform Support Order is required because support is reserved or spousal support is not ordered.
(3) The clerk shall charge a single judgment entry fee when a Uniform Support Order is submitted for entry along with a judgment or order that incorporates it by reference.
(E) Unless otherwise ordered, all support arrearages owing to the state are preserved upon entry of a final order or judgment. Upon a showing of good cause and notice to the friend of the court, the prosecuting attorney, and other interested parties, the court may waive or reduce such arrearages.
(F) Entry of Judgment or Order
(1) Within 21 days after the court renders an opinion or the settlement agreement is placed on the record, the moving party must submit a judgment, order, or a motion to settle the judgment or order, unless the court has granted an extension.
(2) The party submitting the first temporary order awarding child custody, parenting time, or support and the party submitting any final proposed judgment awarding child custody, parenting time, or support must:
(a) serve the friend of the court office and, unless the court orders otherwise, all other parties, with a completed copy of the latest version of the state court administrative office's domestic relations Judgment Information Form, and
(b) file a proof of service certifying that the Judgment Information Form has been provided to the friend of the court office and, unless the court orders otherwise, to all other parties.
(3) If the court modifies the proposed judgment or order before signing it, the party submitting the judgment or order must, within 7 days, submit a new Judgment Information Form if any of the information previously submitted changes as a result of the modification.
(4) Before it signs a judgment or order awarding child support or spousal support, the court must determine that:
(a) the party submitting the judgment or order has certified that the Judgment Information Form in subrule (F)(2) has been submitted to the friend of the court, and
(b) pursuant to subrule (D)(2) any judgment or order concerning a minor or a spouse is accompanied by a Uniform Support Order or explains why a Uniform Support Order is unnecessary.
(5) The Judgment Information Form must be filed in addition to the verified statement that is required by MCR 3.206.
(G) Friend of the Court Review. For all judgments and orders containing provisions identified in subrules (C), (D), (E), and (F), the court may require that the judgment or order be submitted to the friend of the court for review.
(H) Service of Judgment or Order.
(1) When a judgment or order is obtained for temporary or permanent spousal support, child support, or separate maintenance, the prevailing party must immediately deliver one copy to the court clerk. The court clerk must write or stamp "true copy" on the order or judgment and file it with the friend of the court.
(2) The party securing entry of a judgment or order that provides for child support or spousal support must serve a copy on the party ordered to pay the support, as provided in MCR 2.602(D)(1), even if that party is in default.
(3) The record of divorce and annulment required by MCL 333.2864 must be filed at the time of the filing of the judgment.
(Current as of 06/30/2006)
Rule 3.212 Postjudgment Transfer of Domestic Relations Cases
(A) Motion.
(1) A party, court-ordered custodian, or friend of the court may move for the postjudgment transfer of a domestic relations action in accordance with this rule, or the court may transfer such an action on its own motion. A transfer includes a change of venue and a transfer of all friend of the court responsibilities. The court may enter a consent order transferring a postjudgment domestic relations action, provided the conditions under subrule (B) are met.
(B) Conditions.
(1) A motion filed by a party or court-ordered custodian may be granted only if all of the following conditions are met:
(a) the transfer of the action is requested on the basis of the residence and convenience of the parties, or other good cause consistent with the best interests of the minor;
(b) neither party nor the court-ordered custodian has resided in the county of current jurisdiction for at least 6 months prior to the filing of the motion;
(c) at least one party or the court-ordered custodian has resided in the county to which the transfer is requested for at least 6 months prior to the filing of the motion; and
(d) the county to which the transfer is requested is not contiguous to the county of current jurisdiction.
(2) When the court or the friend of the court initiates a transfer, the conditions stated in subrule (B)(1) do not apply.
(C) Transfer Order.
(1) The court ordering a postjudgment transfer must enter all necessary orders pertaining to the certification and transfer of the action. The transferring court must send to the receiving court all court files and friend of the court files, ledgers, records, and documents that pertain to the action. Such materials may be used in the receiving jurisdiction in the same manner as in the transferring jurisdiction.
(2) The court may order that any past-due fees and costs be paid to the transferring friend of the court office at the time of transfer.
(3) The court may order that one or both of the parties or the court-ordered custodian pay the cost of the transfer.
(D) Filing Fee. An order transferring a case under this rule must provide that the party who moved for the transfer pay the statutory filing fee applicable to the court to which the action is transferred, except where MCR 2.002 applies. If the parties stipulate to the transfer of a case, they must share equally the cost of transfer unless the court orders otherwise. In either event, the transferring court must submit the filing fee to the court to which the action is transferred, at the time of transfer. If the court or the friend of the court initiates the transfer, the statutory filing fee is waived.
(E) Physical Transfer of Files. Court and friend of the court files must be transferred by registered or certified mail, return receipt requested, or by another secure method of transfer.
(Current as of 06/30/2006)
Rule 3.213 Postjudgment Motions and Enforcement
Postjudgment motions in domestic relations actions are governed by MCR 2.119.
(Current as of 06/30/2006)
Rule 3.214 Actions Under Uniform Acts
(B) RURESA Actions.
(1) Definition. As used in this subrule, "support order" is defined by MCL 780.153b(8).
(2) Transfer; Initiating and Responding RURESA Cases.
(a) If a Michigan court initiates a RURESA action and there exists in another Michigan court a prior valid support order, the initiating court must transfer to that other court any RURESA order entered in a responding state. The initiating court must inform the responding court of the transfer.
(b) If a court in another state initiates a RURESA action and there exists in Michigan a prior valid support order, the responsive proceeding should be commenced in the court that issued the prior valid support order. If the responsive proceeding is commenced erroneously in any other Michigan court and a RURESA order enters, that court, upon learning of the error, must transfer the RURESA order to the court that issued the prior valid support order. The transferring court must inform the initiating court of the transfer.
(c) A court ordering a transfer must send to the court that issued the prior valid support order all pertinent papers, including all court files and friend of the court files, ledgers, records, and documents.
(d) Court files and friend of the court files must be transferred by registered or certified mail, return receipt requested, or by other secure method.
(e) The friend of the court office that issued the prior valid support order must receive and disburse immediately all payments made by the obligor or sent by a responding state.
(D) Registration of Child Custody Determinations Under UCCJEA. The procedure for registration and enforcement of a child custody determination by the court of another state is as provided in MCL 722.1304. There is no fee for the registration of such a determination.
(Current as of 06/30/2006)
Rule 3.215 Domestic Relations Referees
(A) Qualifications of Referees. A referee ap