The Gavel gets off the back burner
Sorry for not getting another issue out sooner. As many of you know, our office has been deluged with requests for legal services. Virtually all these requests came from existing client referrals, and we appreciate the confidence shown in us. Since client service comes first, The Gavel had to go on a back burner for a short while. We hope it was worth the wait.

Home Improvement: No license, No pay
Residential builders as well as contractors who perform maintenance or alterations for residences must be licensed by the State of Michigan. This law was enacted to help ensure that unqualified and unscrupulous businesses were not preying upon unwitting home owners. To ensure that this law is followed, a severe penalty befalls any builder or contractor that does not follow the licensing requirement: they cannot get paid for work performed. Anyone (other than the homeowner) who performs work at a residence that involves building, repair, alteration, demolition, etc. of the house or garage (even laying concrete) must be licensed as either a builder or a maintenance and alteration contractor (except other licensed trades such as plumbers, electricians, etc.). If they are not, then state law prohibits them from bringing an action (suing) for collection of compensation; in other words, if they are unlicensed and unpaid, they cannot go to court to get paid. MCL § 339.2412. Under state law, a court cannot even fashion some type of a remedy (compensation) for someone who is otherwise barred from relief. The unlicensed builder or contractor is out of luck and out the money they were due to be paid.
Or are they?
It appears there is one loophole that an unlicensed builder or contractor might be able to use. In a recent case, an unlicensed roofing contractor got into a dispute with a homeowner and was not paid. The contractor placed a construction lien against the house, and the homeowner responded by an action to remove the cloud on their title (i.e. remove the lien). The contractor countered claimed for payment on the materials and labor used. The case wound up in the Court of Appeals. The court recognized the statutory prohibition against collection by an unlicensed contractor. However, because the Court was bound by an earlier decision, a strange result occurred. Since the homeowner went to court seeking equity (to clear title), one of the oldest equitable principles came into play: "He who seeks equity must be prepared to do equity." Even though the contractor was unlicensed, and even though the contractor did not have a right to place a lien on the house because of the licensure issue, the Court reluctantly granted the existence of the lien and declared that if the lien was to be removed (seeking equity), then the contractor's bill must be paid (do equity). The Court was very frustrated that the earlier decision had created "a road map for unlicensed contractors who want to avoid the licensing requirements of the act," and only allowed the situation to stand because of the earlier decision. The Court was practically begging for this loophole to be closed in the future by the Supreme Court or the Legislature. Stokes v Milled Roofing Co.

How Far Can a Divorced Parent Move the Children?
Michigan divorce courts retain jurisdiction over the residence of the minor children of a divorce. The custodial parent can not move out of Michigan without the court's blessing. However, the custodial parent was free to move anywhere within the state, which could cause real problems for visitation.
As explained by State Senator Bill Bullard, Jr.: "You needed court intervention and approval to move 15 miles to Toledo, but none to move 700 miles to the Upper Peninsula. A move of a certain distance can disrupt and destroy the bond between a parent and a child." Therefore, Bullard was one of the sponsors of a recently passed law that now limits long moves within the state. Under the new law, the custodial parent cannot unilaterally move more than 100 miles from where the children were living at the time the divorce proceedings started. The rationale is obvious: moving far away will affect and possibly severely limit parenting and visitation time for the non-custodial parent.
However, the new law was not written without some flexibility. The move can still be made if both parents agree, if there is a threat of domestic violence, or if the Court permits the move. The Court will look at a number of factors in deciding whether to permit the 100+ mile move. Foremost of these factors is whether the change will improve the quality of life for the custodial parent and the minor child, and whether the parenting time schedule can be modified so that the parental relationship between the non-custodial parent and the child can be preserved and fostered.
Bottom line: a custodial parent is now even more restricted from moving far away without first receiving permission.

CASE IN POINT: Cordless Phone Privacy
In a prior issue, the topic of recording phone conversations was discussed (see "Can you get (Linda) Tripped up for Michigan Eavesdropping?" The Gavel Issue 2-99). A related question is: Can you legally listen in on someone else's cordless phone conversation?
The issue arose in a criminal case involving a married couple in the process of divorce proceedings. The husband moved out of the house, then found out from his wife's next door neighbor that her cordless phone conversations could be picked up on his police scanner. The Husband asked the neighbor to "keep on top of things and find out what was going on." Acting on a criminal complaint, the police obtained a search warrant and found fifteen cassette tapes of the wife's phone conversations at the homes of the neighbor and the husband. The husband was charged with eavesdropping on a private conversation, in violation of Michigan law. He defended on the theory that cordless phone conversations were not "private," and that the user of a cordless phone could not have a reasonable expectation of privacy, particularly in light of the technological devices that can intercept cordless phone conversations. The case eventually wound up in the Michigan Supreme Court.
The Court first had to interpret Michigan law as to exactly what a "private conversation" was. The Court determined that it was "a conversation that a person reasonably expects to be free from casual or hostile intrusion or surveillance." Having reached this interpretation, the rest of the case was easily decided: since the wife did have a reasonable expectation of privacy in her cordless phone conversation, the husband and neighbor violated those expectations and thus violated Michigan's eavesdropping statute.
Bottom Line: Just because you have the ability to hear someone else's phone conversation does not mean you can legally do so. People v Stone.

REFERRALS
If you have been pleased with the service and professionalism you have received from our office, it would be greatly appreciated if you passed the good word along. Referrals are always appreciated and encouraged, and we look forward to the opportunity of being of service to your associates and friends. If we can not immediately service their needs, we will be happy to refer them to the appropriate attorney specializing in their specific area of need.
However, if you have not been pleased, contact us directly!

David B. Forest, JD, MBA
Attorney and Counselor at Law
(810) 263-5690
www.forestlaw.com

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