MOM THOUGHT SHE HAD A DEAL TO GET JOINT PHYSICAL LATER BUT SHE DID NOT ARGUE HER MOTION RIGHT.
Flint Divorce Lawyer Terry Bankert , 235-1970, discusses several family law Issues recently found in an unpublished Court of Appeals opinion. The full opinion is attached.
The Michigan Court of Appeals in reaching its opinion said “In reaching this conclusion, we are “[e]ver mindful that our Legislature’s intent underlying the Child Custody Act was to ‘minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an established custodial environment, except in the most compelling cases[.]’” Foskett, 247 Mich App at 6 (emphasis in original), quoting Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981).
The issues presented were :
1.Divorce; Change of custody; Foskett v. Foskett; Vodvarka v. Grasmeyer; Hayford v. Hayford;
2.Whether this was a change of custody or the implementation of the "conditional custody order" in the divorce judgment; Hayes v. Hayes; Wilson v. Taylor;
3.Proper cause or change of circumstance (PC or COC); McIntosh v. McIntosh
The Court: Michigan Court of Appeals (Unpublished). The Case Name: xxxxx v. xxxxx
UNPUBLISHED August 21, 2012 No. 308247 from Lapeer Circuit Court LC No. 09-041666-DM
THE COURT OF APPEALS REVIEWS THE FINDING OF THE LOWER COURT.
The Court found that since the trial court failed to articulate factors that were not normal life changes in support of its finding of a change of circumstance or proper cause, the court held that it was unable to determine whether the threshold showing had been met.
WHEN A CUSTODY ISSUE IS REVIEWED WHAT DOES THE COURT LOOK AT?
II. STANDARD OF REVIEW
Three different standards of review apply in child custody cases. Foskett v Foskett, 247
Mich App 1, 4; 634 NW2d 363 (2001).
1. The Michigan Court of Appeals reviews the trial court’s “choice, interpretation, or application of existing law” for clear legal error. Id. at 4-5.
2. The Michigan Court of Appeals reviews the trial court’s findings of fact, such as the finding of an established custodial environment, under the great weight of theevidence standard, and “this [C]ourt will sustain the trial court’s factual findings unless the evidence clearly preponderates in the opposite direction.” Id. at 5 (internal quotations andcitation omitted); see also Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847 (2003).
3.The Michigan Court of Appeals reviews the trial court’s discretionary rulings “for an abuse of discretion,including a trial court’s determination on the issue of custody.” Foskett, 247 Mich App at 5. “An abuse of discretion occurs when the decision resulted in an outcome falling outside the
range of principled outcomes.” Hayford v Hayford, 279 Mich App 324, 325; 760 NW2d 503
(2008).
THE MOVING PARTY MUST PRESENT EVIDENCE THAT MEETS THE THRESHOLD
Without this threshold showing, the plaintiff-father's claims relating to the best interest analysis or the preferences of the children were premature. Thus, the court reversed the trial court's order granting defendant-mother's motion to change custody of the parties' minor children and remanded. [ Sent it back to the lower court ].
BACKGROUND- FATHER GRANTED SOLE PHYSICAL CUSTODY AND HE IS PLANNING TO MOVE.
The parties were married for over 10 years and had 2 children together, a son and daughter. The judgment of divorce was entered on 9/10/10, and the trial court ordered joint legal custody but sole physical custody to plaintiff, who was planning to move with the children to Midland, Michigan.
MOM HAD PARENTING TIME
Defendant's parenting time was every other weekend and every Wednesday (non-overnight) during the school year. Summer vacations and other holidays were divided equally.
THE COURT ORDERED DAD COULD MOVE TO MIDLAND, IF MOM MOVES SHE CAN REQUEST SHARED PHYSICAL CUSTODY
The trial court also ordered that plaintiff was allowed to move to Midland with the children and if defendant moved there as well, she could request the physical custody of the minor children to be shared.
DAD MOVED MOTHER FOLLOWED
After the judgment of divorce was entered, plaintiff moved to Midland with the children. Defendant moved there in 10/11. She filed a motion to change custody, requesting joint physical custody and parenting time on a week on/week off basis.
TRIAL COURT CHANGED PHYSICAL CUSTODY TO JOINT PER THE PREVIOUS ORDER
The trial court found that "maybe" the children needed more time with defendant and that it was in their best interests to modify custody. The trial court granted joint physical custody and every other week parenting time.
MOM ARGUED THIS WAS NOT A CHANGE IN CUSTODY BECAUSE OF LANGUAGE IN THE JUDGEMENT
Defendant asserted that this was not really a change of custody, but merely the implementation of the conditional custody order in the judgment of divorce.
THE MICHIGAN COURT OF APPEALS SAID THERE WAS NO GUARANTEE
However, while the judgment of divorce included a statement that defendant could relocate to Midland and petition to change custody, there was no language guaranteeing that her request would be granted.
COURT ORDERS DO NOT DECIDE IF THERE IS A CUSTODIAL ENVIRONMENT
The court also has held that court orders are "irrelevant" for issues like determining the existence of an established custodial environment or the burden of proof in change custody actions.
MOM DID NOT CITE ANY CASE LAW TO DIRECT THE COURT THAT IT IS NOT REQUIRED TO HAVE A CUSTODY HEARING
Further, defendant failed to cite any case law to support a finding that conditional language in custody orders implies that the court may dispense with the change of custody analysis. Thus, the court construed this action as a "change of custody case."
MOTHER WAS REQUIRED TO SHOW THERE WAS A PROPER CAUSE OR CHANGE IN CIRCUMSTANCE
As the moving party in a change of custody action, defendant MOTHER “has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists” to justify a modification of custody. Vodvarka, 259 Mich App at 509. The finding of proper cause or change of circumstance must be determined “before the trial court can consider whether an established custodial environment exists (thus establishing the burden of proof) and conduct a review of the best interest factors.” Id. (emphasis in original).
WAS THIS CHANGE PROVEN BY A PREPONDERANCE OF THE EVIDENCE
Hence, in order to reach plaintiff’s claims about the established custodial environment or the best interest factors, the court must first must determine that the trial court correctly found that a preponderance of the evidence established proper cause or change of circumstance.
PROPER CAUSE MUST BE FOUND
“[P]roper cause means one or more appropriate grounds that have or could have a
significant effect on the child’s life to the extent that a reevaluation of the child’s custodial
situation should be undertaken.” Vodvarka, 259 Mich App at 511.
BIG FACTS NOT LITTLE FACTS ARE NEEDED
The grounds relied upon “must be of a magnitude to have a significant effect on the child’s well-being to the extent that revisiting the custody order would be proper.” Id. at 512. In order to establish a change of circumstance, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Id. at 513 (emphasis in original).
MORE THAN NORMAL LIFE CHANGES MUST BE FOUND
However the evidence of a change of circumstance “must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.”Id. at 513-514. For both proper cause and change of circumstance, a court may consider the best interest factors of MCL 722.23. Id. at 512, 514
THERE IS GOOD REASON TO DO THIS AGAIN
As to whether the trial court correctly found that a preponderance of the evidence established PC or COC, the trial court found that there was good cause to revisit the custody situation because of defendant's relocation, her change of employment, and the "little issues" as to the children.
MOM’S CHANGES WERE JUST NORMAL LIFE
As to defendant's relocation and change of employment, these are merely normal life changes that occur frequently in the course of a parent's life. Also, she failed to show how these changes significantly affect the custodial circumstances surrounding the children. Defendant has been, and continues to be, a constant presence in the children's lives. Both parties agreed that she exercises all of her parenting time and has enjoyed additional time with the children. Further, defendant testified that she and her daughter have become even closer since the divorce and have a better relationship. Thus, she failed to show that her relocation or new job has or will have "a significant effect on the child's well-being," as she already has a significant presence in and involvement with the children's lives.
LITTLE ISSUES?
Also, the trial court's reference to the "little issues" as to the children was an insufficient factual finding. The hearing was replete with allegations concerning the children's well-being, some of which were quite serious, and many of which were contested. Yet, the trial court only referenced "little issues" as to the children, without providing any further explanation or detail. Without knowing what the trial court was referring to or whether it found defendant's allegations to be credible, the court was unable to determine if the trial court erred in finding PC or COC.
THE LOWER COURT RECORD JUST WAS NOT CLEAR
It was also unclear from the record whether the trial court would have still found PC or COC without considering the normal life changes of defendant's relocation or new employment.
[END]
-----full case follows---- FULL CASE FOLLOWS---
S 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 S
JAY ROBERT JOHNSTON,
Plaintiff/Counter-Defendant-
Appellant,
UNPUBLISHED
August 21, 2012
v No. 308247
Lapeer Circuit Court
AUTUMN NICOLE JOHNSTON, LC No. 09-041666-DM
Defendant/Counter-Plaintiff-
Appellee.
Before: O’CONNELL, P.J., AND JANSEN AND RIORDAN, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion to change
custody of the parties’ minor children. We reverse and remand for further proceedings.
I. BACKGROUND FACTS
Plaintiff and defendant were married for over 10 years and had two children together, a
son and daughter. The parties eventually decided to divorce for various reasons, including
defendant’s five year relationship with a married man. The judgment of divorce was entered on
September 10, 2010, and the court ordered joint legal custody but sole physical custody to
plaintiff, who was planning to move with the children to Midland, Michigan. Defendant’s
parenting time was every other weekend and every Wednesday (non-overnight) during the
school year. Summer vacations and other holidays were divided equally. The trial court also
ordered that plaintiff was allowed to move to Midland with the children and if defendant moved
there as well, she could request the physical custody of the minor children to be shared.
After the judgment of divorce was entered, plaintiff moved to Midland with the children
and worked at Dow Chemical, earning approximately $72,000 a year. Defendant remained
living in Columbiaville, Michigan, seeking better employment, as she only earned $10,000 a
year. Two months after the divorce was final and while still in Midland, plaintiff and the
children began living with plaintiff’s girlfriend and her two children. Plaintiff and his girlfriend
eventually married in September 2011. Also in September 2011, defendant began working at
Quick Reliable Printing in Midland, earning $15 an hour and working 40 hours a week. Because
she wanted to be closer to the children and her new job was in Midland, defendant moved there
in October 2011. She procured a three-bedroom apartment a few miles from where plaintiff was
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residing with the children. Defendant then filed a motion to change custody, requesting joint
physical custody and parenting time on a week on/week off basis.
A hearing was held and defendant claimed that the children were not being bathed and
their teeth were not being brushed. She also alleged that the children were experiencing health
problems that plaintiff was not addressing properly, such as constipation, cavities, a fever, and a
sore on their daughter’s lip. Additionally, defendant claimed that the children were emotionally
upset by plaintiff’s new marriage and living arrangement and were having behavioral problems.
Defendant provided examples such as their son smearing his fecal matter on the walls and bed,
and their daughter exhibiting disturbing signs of punching herself in the face and pulling her hair
out. Their son also had to repeat first grade because as opposed to enrolling him in another year
of kindergarten as recommended, plaintiff enrolled him in first grade. Defendant also asserted
that plaintiff’s step-children were physically assaulting the children, leaving bruises, and that the
children did not want to return to plaintiff’s house when defendant’s parenting time ended.
Plaintiff, on the other hand, testified that the children bathe regularly and live in a clean
environment. He also testified that he tells them he loves them, they come to him with problems,
feelings, and triumphs, and he provides them with food, clothing, and access to proper medical
care. He also helps them with their homework, attends parent teacher conferences, teaches them
responsibility through household chores, and disciplines them when needed. While plaintiff
admitted that the children did not see a dentist for a year, this was only because they were
waiting for a family appointment, which was never available. Plaintiff also explained that after
witnessing his daughter hit herself one time, he had a frank discussion with her about how this
was unacceptable behavior. Plaintiff never witnessed his son smear fecal matter anywhere, and
his son’s progress since repeating first grade was excellent. While plaintiff acknowledged that
there were some difficulties with the remarriage, he felt that everyone was getting along despite
the occasional squabble. Plaintiff also claimed that defendant would constantly request more
parenting time and was constantly early to pick up the children and late to drop them off.
Furthermore, plaintiff claimed that defendant violated court orders by talking to the children
about contentious issues in the divorce. Plaintiff also testified that while their son sometimes
became upset when returning to plaintiff’s house, defendant exacerbated the situation by
dragging out the goodbyes and engaging in “theatrics.”
At the close of the hearing, the court stated that when originally deciding custody in the
judgment of divorce, joint physical custody would have been ordered if logistically possible.
The trial court also referred to the judgment of divorce as a conditional custody order, with the
condition being defendant moving to Midland. The court stated that if this was a change of
custody action, good cause to revisit custody was defendant’s relocation, her change of
employment, and “a lot of little issues regarding the children” that “add up to a lot.” The court
then found that there was an established custodial environment with plaintiff and discussed the
best interest factors. The trial court found that the ability to provide for the children’s physical
needs had favored plaintiff, but now favored each party equally. In regard to moral fitness of the
parties, the trial court stated that while this factor had weighed slightly in plaintiff’s favor
because of defendant’s affair, it now weighed equally considering plaintiff’s behavior in moving
in with his girlfriend so soon after the divorce. As for all of the other factors, the trial court
stated that they either favored both parties equally or did not apply. Therefore, the trial court
found that “maybe” the children needed more time with defendant and that it was in the best
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interests of the children to modify custody. The trial court granted joint physical custody and
every other week parenting time. Plaintiff now appeals.
II. STANDARD OF REVIEW
Three different standards of review apply in child custody cases. Foskett v Foskett, 247
Mich App 1, 4; 634 NW2d 363 (2001). We review the trial court’s “choice, interpretation, or
application of existing law” for clear legal error. Id. at 4-5. We review the trial court’s findings
of fact, such as the finding of an established custodial environment, under the great weight of the
evidence standard, and “this [C]ourt will sustain the trial court’s factual findings unless the
evidence clearly preponderates in the opposite direction.” Id. at 5 (internal quotations and
citation omitted); see also Vodvarka v Grasmeyer, 259 Mich App 499, 507; 675 NW2d 847
(2003). Finally, we review the trial court’s discretionary rulings “for an abuse of discretion,
including a trial court’s determination on the issue of custody.” Foskett, 247 Mich App at 5.
“An abuse of discretion occurs when the decision resulted in an outcome falling outside the
range of principled outcomes.” Hayford v Hayford, 279 Mich App 324, 325; 760 NW2d 503
(2008).
III. ANALYSIS
A. Change of Custody Action
Defendant challenges that this was not really a change of custody, but merely the
implementation of the conditional custody order in the judgment of divorce. However, while the
judgment of divorce included a statement that defendant could relocate to Midland and petition
to change custody, there is no language guaranteeing that defendant’s request would be granted.
This Court also has held that court orders are “irrelevant” for issues like determining the
existence of an established custodial environment or the burden of proof in change custody
actions. Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d 190 (1995). Furthermore,
defendant fails to cite any caselaw to support a finding that conditional language in custody
orders implies that this Court may dispense with the change of custody analysis. See Wilson v
Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998) (internal quotations and citation omitted)
(stating that “[i]t is not sufficient for a party simply to announce a position or assert an error and
then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.”). Thus, we construe this action as a change of custody case.
B. Proper Cause or Change of Circumstance
As the moving party in a change of custody action, defendant “has the burden of proving
by a preponderance of the evidence that either proper cause or a change of circumstances exists”
to justify a modification of custody. Vodvarka, 259 Mich App at 509. The finding of proper
cause or change of circumstance must be determined “before the trial court can consider whether
an established custodial environment exists (thus establishing the burden of proof) and conduct a
review of the best interest factors.” Id. (emphasis in original). Hence, in order to reach
plaintiff’s claims about the established custodial environment or the best interest factors, we first
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must determine that the trial court correctly found that a preponderance of the evidence
established proper cause or change of circumstance.
“[P]roper cause means one or more appropriate grounds that have or could have a
significant effect on the child’s life to the extent that a reevaluation of the child’s custodial
situation should be undertaken.” Vodvarka, 259 Mich App at 511. The grounds relied upon
“must be of a magnitude to have a significant effect on the child’s well-being to the extent that
revisiting the custody order would be proper.” Id. at 512. In order to establish a change of
circumstance, “a movant must prove that, since the entry of the last custody order, the conditions
surrounding custody of the child, which have or could have a significant effect on the child’s
well-being, have materially changed.” Id. at 513 (emphasis in original). However, the evidence
of a change of circumstance “must demonstrate something more than the normal life changes
(both good and bad) that occur during the life of a child, and there must be at least some
evidence that the material changes have had or will almost certainly have an effect on the child.”
Id. at 513-514. For both proper cause and change of circumstance, a court may consider the best
interest factors of MCL 722.23. Id. at 512, 514.
In this case, the court found that there was good cause to revisit the custody situation
because of defendant’s relocation, her change of employment, and the “little issues” regarding
the children. In regard to defendant’s relocation and change of employment, these are merely
normal life changes that occur frequently in the course of a parent’s life. See Vodvarka, 259
Mich App at 513. Moreover, defendant failed to demonstrate how these changes significantly
affect the custodial circumstances surrounding the children. Defendant has been, and continues
to be, a constant presence in the children’s lives. Both parties agree that defendant exercises all
of her parenting time and has enjoyed additional time with the children. Further, defendant
testified that she and her daughter have become even closer since the divorce and have a better
relationship. Thus, defendant has failed to demonstrate that her relocation or new job has or will
have “a significant effect on the child’s well-being,” Vodvarka, 259 Mich App at 513 (emphasis
in original), as she already has a significant presence in and involvement with the children’s
lives. In reaching this conclusion, we are “[e]ver mindful that our Legislature’s intent underlying
the Child Custody Act was to ‘minimize the prospect of unwarranted and disruptive change of
custody orders and to erect a barrier against removal of a child from an established custodial
environment, except in the most compelling cases[.]’” Foskett, 247 Mich App at 6 (emphasis in
original), quoting Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981).
In addition, the trial court’s reference to the “little issues” regarding the children is an
insufficient factual finding. “The trial court need not comment on each item of evidence or
argument raised by the parties, but its findings must be sufficient for this Court to determine
whether the evidence clearly preponderates in the opposite direction.” McIntosh v McIntosh, 282
Mich App 471, 474; 768 NW2d 325 (2009). The hearing was replete with allegations
concerning the children’s well-being, some of which were quite serious, and many of which were
contested. Yet, the trial court only referenced “little issues” regarding the children, without
providing any further explanation or detail. Without knowing what the trial court was referring
to or whether the court found defendant’s allegations to be credible, we are unable to determine
if the court erred in finding proper cause or change of circumstance. Moreover, it is also unclear
from the record whether the trial court would have still found proper cause or change of
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circumstance without considering the normal life changes of defendant’s relocation or new
employment.
C. Conclusion
Since the trial court failed to articulate factors that were not normal life changes in
support of its finding of a change of circumstance or proper cause, we are unable to determine
whether the threshold showing has been met. Without this threshold showing, plaintiff’s claims
relating to the best interest analysis or the preferences of the children are premature. We reverse
and remand for further factual findings. We do not retain jurisdiction.
/s/ Peter D. O'Connell
/s/ Michael J. Riordan
