Saturday, March 14, 2009


Attorney Terry Bankert is a Divorce attorney practicing in Flint Mi USA. As a Flint Family Law Lawyer Bankert litigates issues such as parenting time, child support and child custody. Often parents seeking a change in custody do not realize they must show a change in circumstances since the last order. The following case demonstrates this need.[The material here is altered for media Presentation consult with an atorney before your rely on its content.With some delitions and spacing my comments are in CAP or brackets.Terry bankert]On WFLT 1420 AM Radio.I present every Saturday a show " Know the Law". It is a call in show 9 am to 9:30, 810-239-5733. The core of the program is Family Law as explained through the lens of a recent high court decision. Two things are accomplished. 1. I am marketing 2. You have another barier reduced to understanding and protecting your rights in A Family Law situation.Issues:Child custody; Whether the trial court properly denied the defendant-father's change of custody motion; [A good parent knows what is best for their child! But court proceedings are an organization of rules by which society makes decisons. Implicit in understanding these rules is knowledge of the doctrines they stand on.DOCTRINE: We want stability in the lives of children.RULE: The person asking for a change in custody of a child must show something new since the last court order was entered not just rehash old stuff.This new stuff must have great impact of the childs life.]Burden of proof; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Killingbeck v. Killingbeck; The "best interest" factors (MCL 722.23); Schlender v. Schlender;Standard of review; Fletcher v. Fletcher; Whether a change in economic circumstances alone is sufficient to warrant revisiting a previously entered custody order; Dempsey v. Dempsey;Whether a change in the child's grades demonstrated a change in circumstancesCourt: Michigan Court of Appeals (Published) [The legislature votes on statutes, High Courts Publish Cases to explain how to use statutes, each become the law of the land.]Case Name: Corporan v. Hentone-Journal Number: 42059Judge(s): K.F. Kelly, Servitto, and OwensDAD DID NOT MEET THE CHANGE OF CIRCUMSTANCES TESTConcluding the defendant-father failed to make the required threshold showing of a change in circumstances to support his motion for change of custody,THE LOWER COURT DID IT RIGHTthe court held the trial court employed the proper procedure by first determining whether a proper cause or a change in circumstances was established by a preponderance of the evidence,FINANCIAL PROBLEMS OF CUSTODIAL PARENT ARE NOT A "CHANGE IN CIRCUMSTANCES"..BUT SHOULD BE USED IN CHILD SUPPORT CALCULATIONSproperly ruled negative financial changes are more appropriately addressed in a child support context rather than a change of custody motion,DAD FAILED THE TESTand correctly held defendant failed to show a proper cause or change of circumstances in order to warrant conducting an evidentiary hearing.MOM HAD CUSTODY AND ALLOWED TO MOVE TO FLORIDAThe plaintiff-mother was awarded sole physical custody of the parties' minor son with joint legal custody to the parties pursuant to a consent judgment of support.DAD GOT HIS CHANGE OF DOMICILE HEARING , MOM MOVED WITH CHILDLater, the trial court granted plaintiff's motion to change her domicile to Florida and the child would later move to Florida based on his school schedule and live with her.MOM HAS TO PAY TRANSPORTATIONThe order included a parenting time schedule and was later amended, inter alia, to require plaintiff to pay all transportation costs.---DAD SAYS THERE IS A CHANGE IN CIRCUMSTANCESDefendant moved for a change of custody arguing there was a change in circumstances warranting a change of sole physical custody to him.MOM POOR AND COULD NOT AFFORD AIRLINE TICKET EVICTIONS AND CHILD DID POORLY IN SCHOOL.He alleged plaintiff was having financial difficulties, failed to provide an airline ticket for the holiday parenting time, had received eviction notices, and the child did less well in school while living with her.COURT SAID FINANCIAL PROBLEMS NOT A CHANGE IN CIRCUMSTANCE.The trial court held a preliminary hearing on the motion,WHEN OUT OF STATE SOME COURTS LET YOUR PARTICIPATE BY TELEPHONEplaintiff appeared by telephone, and the trial court ruled plaintiff's alleged financial problems did not constitute a change of circumstances sufficient to warrant a change of custody, financial issues should be addressed in the context of child support, and since defendant failed to meet the threshold requirement of showing a change of circumstance, it refused to consider defendant's motion any further. His motion for reconsideration was denied. The court held after the trial court made the threshold determination, it did not abuse its discretion in denying defendant's motion for change of custody and declining to conduct an evidentiary hearing. Affirmed.– END SUMMARY FULL CASE FOLLOWS WITH MODIFICATIONSS T A T E O F M I C H I G A N,C O U R T O F A P P E A L SPAULA MICHELLE CORPORAN, Plaintiff-Appellee, FOR PUBLICATIONMarch 5, 2009,9:05 a.m.,V No. 285778,Oakland Circuit CourtFamily Division,MARK EDWARD HENTON,LC No. 2003-683821-DS,Defendant-Appellant.Before: Servitto, P.J., and Owens and K.F. Kelly, JJ.K. F. KELLY, J.,--Defendant appeals as of right the trial court’s order denying defendant’s motion forchange of custody.Defendant argues that, contrary to the trial court’s conclusion, he presentedsufficient evidence of a change of circumstances to warrant an evidentiary hearing on the issueof whether a change in custody would be in the best interests of the parties’ minor son. We holdthat the trial court employed the proper procedure by first determining whether or not propercause or a change in circumstances had been established by a preponderance of the evidence.We also affirm the trial court’s ruling that negative financial changes, if any, are moreappropriately addressed in a child support context rather than in a change of custody motion.Finally, we affirm its decision that defendant failed to show proper cause or a change ofcircumstances in order to warrant conducting an evidentiary hearing.I. Basic Facts and Procedural BackgroundPursuant to the original consent judgment of support entered January 6, 2004, plaintiffwas awarded sole physical custody of the parties’ minor son with joint legal custody to plaintiffand defendant.MOM MOVES TO FLORIDAY DAD GETS ALL BUT TWO WEEKS OF SUMMEROn August 23, 2006, the trial court granted plaintiff’s motion to change herdomicile from Michigan to St. Petersburg, Florida. The order provided that the child wouldremain with defendant “until the end of the first marking period” in the St. Petersburg schooldistrict, and then, the child would move to Florida and reside with plaintiff. The order furtherprovided that the child was “to spend summers with his dad from one week after school is out in[Florida] until one week before school starts in [Florida] and Christmas break with dad and anyother time by mutual agreement of the parents.”On January 5, 2007, defendant moved for achange of custody. On January 26, 2007 the trial court entered an order denying defendant’smotion but slightly modified the parenting schedule to include specific dates and requiringplaintiff to pay for all transportation costs.-2-On March 28, 2008, defendant moved again for a change of custody. In his motion,defendant argued that after the trial court entered the January 26, 2007, order there had been aa change of circumstances warranting a change of sole physical custody to defendant.DADS ARGUMENTSpecifically, defendant alleged that plaintiff had[1]difficulty maintaining steady employment;[2]failed to provide an airplane ticket for the Christmas parenting time;[3]had received numerous eviction notices; and,[4]for a period of approximately six weeks, was without a telephone.[5]Moreover, according to defendant, the minor child did less well in school when living withplaintiff and his activity level had declined.1Defendant concluded that it would be in the child’s best interests for defendant to have sole physical custody because he was better able to provide financial support, as well as “a stable, satisfactory environment.”MOM IN PRO PER[ NO ATTORNEY] DID NOT FORMALLY RESPONDPlaintiff did not file a written response to defendant’s motion for change of custody.MOM APPEARED ON THE TELEPHONEOn April 23, 2008, the trial court held a preliminary hearing on defendant’s motion forchange of custody. Plaintiff appeared at the hearing via telephone.MOM SAYS SHE CANNOT AFFORD WHAT SHE HAS TO DO IN THE ORDERIn response to defendant’s allegation that plaintiff withheld parenting time in violation of the trial court’s order, plaintiff argued that she could not afford to purchase an airline ticket for the minor child to visit defendant during the winter holiday season.PLANE TICKETS ARE EXPENSIVE BUT ONE HAS BEEN BOUGHTHowever, plaintiff stated that she had already purchased an airline ticket for him to travel to Michigan for his next scheduled visit during the summer.MOM HADE NOT BEEN EVICTEDShe further argued that she was living in the same apartment, had not been evicted andher landlord issues were a result of late fees added to the rent.DAD JUST HAD HIS CHILD MOVED TO FLORIDA, MOM HAD CONDITIONS SHE CANNOT MEET, HE WANTS HIS CHILD BACKDefendant argued that this constituted a change in economic circumstances and that it would be in the minor child’s best interest for defendant to have sole physical custody.NOPE SAYS THE COURTThe trial court ruled that plaintiff’s alleged financial problems do not constitute a changeof circumstances sufficient to warrant a change of custody.MOM COULD HAVE ASKED FOR MORE CHILD SUPPORT TO COMPLY WITH HER NEW FINANCIAL OBLIGATION UNDER THE ORDER ALLOWING HER TO MOVE!It further found that the financial issues could be addressed by an increase in the amount of child support payments pursuant to a properly filed motion to modify child support.Because defendant failed to meet the threshold requirement of showing a change of circumstances, the trial court refused to consider defendant’s motion any further.DAD ASKED THE LOWER COURT TO RECONSIDER BECASUE THEY WERE OBVIOUSLY WRONG, IN HIS MINDDefendant moved for reconsideration, which the trial court denied, reiterating its previous reasoning, as follows:As indicated on [sic] at the April 23rd hearing, I do not find that Defendant hasshown a sufficient change of circumstance to warrant a hearing on change ofcustody. The parties were reminded that if they have a child support issue, one ofthem needs to file a motion with respect to child support, and Plaintiff wasinstructed to comply with the parenting Order in place.This appeal followed.THE REST OF THE STORY. MOM STILL WITH BOYFRIEND WHO IS ABUSIVE AND HIS ADULT CHILD WHO THREATNED THE MINOR CHILD?Defendant also alleged that plaintiff’s housemate continued to have contact with a physicallyabusive ex-boyfriend, and the housemate’s 23 year old son, who also lived at the home, allegedlyindicated that he “might harm” the minor child. This allegation was not argued before the trialcourt, nor is it raised on appeal.II. Applicable Law1.The goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custodyorders, except under the most compelling circumstances.Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001). And, a trial court may modify a custody award only if the moving party first establishes proper cause or a change in circumstances. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003).Accordingly, a party seeking a change in the custody of a child is required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change in circumstances.Killingbeck v Killingbeck, 269 Mich App132, 145; 711 NW2d 759 (2005); see also Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835(2004).If a party fails to do so, the trial court may not hold a child custody hearing.2 This Court has explained the meaning of “proper cause” and “change of circumstances:”[T]o establish “proper cause” necessary to revisit a custody order, a movant mustprove by a preponderance of the evidence the existence of an appropriate groundfor legal action to be taken by the trial court. The appropriate ground(s) should berelevant to at least one of the twelve statutory best interest factors, and must be ofsuch magnitude to have a significant effect on the child’s well-being. When amovant has demonstrated such proper cause, the trial court can then engage in areevaluation of the statutory best interest factors.* * *[I]n order to establish a “change of circumstances,” a movant must prove that,since the entry of the last custody order, the conditions surrounding custody of thechild, which have or could have a significant effect on the child’s well-being,have materially changed. Again, not just any change will suffice, for over timethere will always be some changes in a child’s environment, behavior, and wellbeing.Instead, the evidence must demonstrate something more than the normallife changes (both good and bad) that occur during the life of a child, and theremust be at least some evidence that the material changes have had or will almostcertainly have an effect on the child. This too will be a determination made onthe basis of the facts of each case, with the relevance of the facts presented beinggauged by the statutory best interest factors. [Vodvarka, supra at 512-514(emphasis in original).]2 Alternatively, if the moving party succeeds in making this threshold showing, the court mustthen determine if the child has an established custodial environment with one parent or both.Once the court makes a factual determination regarding the existence of an established custodial environment, which determines the burden of proof to be applied, the court must weigh thestatutory best interest factors of MCL 722.23 and make a factual finding regarding each factor in the context of a child custody hearing. Schlender v Schlender, 235 Mich App 230, 233; 596NW2d 643 (1999).Although the threshold consideration of whether there was proper cause or a change ofcircumstances might be fact-intensive, the court need not necessarily conduct an evidentiaryhearing on the topic. Id. at 512.III. Standards of ReviewThis Court reviews a trial court’s determination regarding whether a party hasdemonstrated proper cause or a change in circumstances under the great weight of the evidencestandard. Id. at 508, 512. Under the great weight of the evidence standard, this Court defers tothe trial court’s findings of fact unless the trial court’s findings “clearly preponderate in theopposite direction.” Fletcher v Fletcher, 447 Mich 871, 878; 526 NW2d 889 (1994) (quotationmarks omitted).In reviewing child custody decisions, we apply three standards of review:The great weight of the evidence standard applies to all findings of fact. A trialcourt’s findings regarding the existence of an established custodial environmentand regarding each custody factor should be affirmed unless the evidence clearlypreponderates in the opposite direction. An abuse of discretion standard appliesto the trial court’s discretionary rulings such as custody decisions. Questions oflaw are reviewed for clear legal error. A trial court commits clear legal errorwhen it incorrectly chooses, interprets, or applies the law. [Phillips v Jordan, 241Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).]We review a trial court’s ruling on a motion for reconsideration for an abuse ofdiscretion. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). “Anabuse of discretion occurs when the decision results in an outcome falling outside the range ofprincipled outcomes.” Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).IV. AnalysisWe agree with the trial court that defendant failed to establish by a preponderance of theevidence either proper cause or a change in circumstances sufficient to warrant reconsiderationof the previous January 26, 2007 custody and parenting time order. After making this thresholddetermination, the trial court did not abuse its discretion in denying defendant’s motion forchange of custody and declining to conduct an evidentiary hearing.THE BEST INTEREST FACTORS APPLIEDA. Financial Difficulties Defendant contends the evidence shows that plaintiff had incurred financial problems, specifically, difficulties with paying her rent in a timely manner. This argument addresses the “best interest of the child” factor (c), which permits the trial court to consider “[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.” MCL 722.23(c). These problems, in defendant’s view, could have resulted in the eviction of plaintiff and the child, and demonstrated that there was a sufficient change of economic circumstances to warrant a change of custody.According to defendant, thechange in economic circumstances was also shown by plaintiff’s failure to provide airlinetransportation for the child to visit defendant during the previous holiday season.The trial courtrejected defendant’s contention that this change in economic circumstances warranted a changeof custody because, according to the trial court, plaintiff’s shortage of income could be remediedby an increase in child support.This Court arrived at a similar conclusion in Dempsey vDempsey, 96 Mich App 276, 289-290; 292 NW2d 549, modified 409 Mich 495 (1980). InDempsey, this Court reasoned that a parent with “more modest economic resources” isnonetheless entitled to equal consideration in the child custody context, because “[i]f the partiesare substantially different as to economic circumstances, the [trial] court has ample powerthrough its orders, if it be in the best interests of the child or children, to equalize thosecircumstances.” Id. at 290.We agree with the trial court that changes in financial circumstancesare more appropriately addressed upon a properly filed motion to review and/or change childsupport. Changes in economic circumstances, standing alone, are insufficient to warrantrevisiting a previously entered child custody order.Further, we are not persuaded that the trial court erred in concluding that defendant failedto show “that, since the entry of the last custody order, the conditions surrounding custody of the child, . . . [has] or could have a significant effect on the child’s well-being, have materiallychanged.” Vodvarka, supra at 513. Although defendant presented evidence that plaintiff haddifficulty paying her rent, and had, in fact, been threatened with eviction at one point, the record does not show that plaintiff and the child were ever compelled to vacate their residence, or thatplaintiff and the child’s living arrangement actually changed in any way from January 26, 2007,through the date of the hearing on April 23, 2008.Further, although plaintiff admitted at thehearing that she did not comply with the trial court order with respect to providing defendantwith parenting time, plaintiff articulated her intent and ability to follow the order in the future,having already purchased the airline ticket for the child’s next scheduled visit with defendantduring the summer months of this year.Thus, defendant’s assertion, that plaintiff “blatant[ly]refus[ed] to make the child available” for parenting time, is unsupported by the record. Weconclude that the trial court’s finding, that defendant failed to demonstrate a change ofcircumstances with the evidence that plaintiff was experiencing financial problems, was notagainst the great weight of the evidence.B. The Minor Child’s GradesDefendant next argues that “based upon a review of [the child’s] grades since the entry ofthe last custody order, there appears to be a significant decline in the [the child’s] academicperformance.”The trial court’s finding that this evidence did not demonstrate a change ofcircumstances was not against the great weight of the evidence. Defendant addresses “bestinterests of the child” factor (h), “[t]he home, school, and community record of the child.” MCL722.23(h).Although a comparison of the grade reports from Adler Elementary School(Southfield, Michigan) and Maximo Elementary School (St. Petersburg, Florida) shows that thechild’s grades have declined to a minor extent in certain subjects, the child’s grades do not showanythingNORMAL LIFE CHANGES ARE NOT A CHANGE IN CIRCUMSTANCES“more than the normal life changes (both good and bad)that occur during the life of achild . . . .” Vodvarka, supra at 513.The child apparently excelled in five of twelve factors oflanguage arts in Michigan, but achieved an overall grade of “C” in reading and writing inFlorida.However, although the child achieved average grades in art in Michigan, he received aexcellent grade for art in Florida.According to the Florida progress reports, the child is not in danger of failing in anysubject. Furthermore, although defendant attempts to attribute the decline in the child’sacademic performance to his current custodial environment, the changes in the child’s grades