e-Journal #: 65733
Case: Bauer v. Waidelich
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gleicher, M.J. Kelly, and Shapiro

Issues:

Divorce; Change of custody; Fletcher v. Fletcher; Kubicki v. Sharpe; Vodvarka v. Grasmeyer; Proper cause or change of circumstances; Kaeb v. Kaeb; Shann v. Shann; Whether the trial court should have accepted as true all allegations in defendant-father’s verified petition as plaintiff-mother did not file a verified answer in response; MCR 2.114(B)(2); Jackson v. City of Detroit Bd. of Educ.; MCR 2.119(B)(1)

Summary:

Holding that the trial court’s findings did not preponderate against the evidence, the court affirmed its decision in this custody case. The parties have repeatedly returned to the court system to resolve parenting disputes following their acrimonious divorce. The defendant-father asked the trial court to modify the equal parenting time arrangement and award him sole physical custody of the two children based on parental alienation. The trial court considered the evidence and allegations and determined that since it last resolved a parenting dispute between the parties, no change in circumstances had occurred or proper cause established to revisit the custody award. Thus, it did not further consider his request. “This determination did not preponderate against the evidence.” It did not conduct an evidentiary hearing to determine if a change in custody would be in the children’s best interests because it determined that defendant had not made the prerequisite showing of proper cause or change in circumstances. This was a difficult case and the court appreciated his concerns as to the impact on the children of the plaintiff-mother’s CPS reports. However, it could not conclude that the trial court’s findings preponderated against the evidence. First and foremost, the trial court had the opportunity to observe her first-hand and found believable her statement that she acted out of real concern for the children and not to alienate them from the father. Similarly, the trial court expressed doubt that she was the individual who made the CPS complaint as to sexual abuse. Rather, the trial court opined that the children’s therapist, a mandatory reporter, likely contacted the agency. The court may not second guess the trial court’s assessment of the witness’s credibility in this regard. Even accepting that plaintiff had filed the CPS complaints, the trial court determined that they were made out of a legitimate concern for her children’s welfare. Specifically, she was validly concerned that defendant allowed her father around the children given his history of child sexual abuse. The trial court had already acknowledged the merit of her complaint and entered an order accordingly. Her second CPS complaint as to medical issues was valid, in the trial court’s estimation, because defendant had pursued treatment for the children without her knowledge and approval.

 

e-Journal #: 65400
Case: Lessard v. Londo
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gadola, Talbot, and Gleicher

Issues:

Custody; Pierron v. Pierron; The Child Custody Act (MCL 722.21 et seq.); The statutory best interest factors; MCL 722.23; Factors (c), (d), (f), (j), & (l); Eldred v. Ziny; Berger v. Berger; Fletcher v. Fletcher; Credibility; Shann v. Shann; Change of circumstances or proper cause for a custodial change under MCL 722.27(1)(c); Kubicki v. Sharpe; Established custodial environment; Phillips v. Jordan; Limited parenting time; Pickering v. Pickering; MCL 722.27a(1) & (7); Shade v. Wright

Summary:

The court held that under the circumstances, it could not conclude that the trial court abused its discretion in maintaining the child’s (EL) physical custody with the defendant-mother (Londo) while requiring the parties to work together to make decisions for the child. It also found no error in the trial court’s parenting-time award. Thus, it affirmed the trial court’s ruling that it was in EL’s best interests to remain with the mother while gradually increasing her visits with the plaintiff-father (Lessard). He challenged the trial court’s custody ruling, as well as its underlying findings as to best-interest factors (c), (d), (f), (j), and (l). The trial court first determined that EL’s established custodial environment was with the mother and maternal grandparents, and Lessard did not challenge that ruling. The trial court never made the threshold determination whether he established a change in circumstances or proper cause to change custody. However, the court did not remand for reconsideration because the trial court correctly weighed the best-interest factors and determined that no change in custody was warranted. The court concluded that none of the trial court’s findings on the challenged factors were against the great weight of the evidence, and held that the trial court’s “custody determination was well within its discretion. After reviewing the totality of the best-interest factors,” the trial court rendered a judgment that was in EL’s best interest. She has an established custodial environment with Londo, who has been her primary caretaker since birth. Lessard has never lived in the same city as EL. Because of his proximal distance, he has not yet developed a parent-child bond with her.

 

e-Journal #: 65430
Case: Duncan v. Booth
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gadola, Talbot, and Gleicher

Issues:

Custody; The Child Custody Act (MCL 722.21 et seq.); The statutory best interest factors; MCL 722.23; Factors (a)-(d) & (k); The great weight of the evidence; Diez v. Davey; The preponderance of the evidence standard applicable when no established custodial environment exists; Bowers v. Bowers

Summary:

Holding that the trial court did not err in finding that the challenged statutory best interest factors favored the plaintiff-mother, or abuse its discretion in awarding her primary physical custody of the child, the court affirmed the trial court’s order. While the defendant-father appealed a child support order (the first order appealable as of right), he challenged the earlier custody order. He argued that the trial court erred in determining that primary physical custody with plaintiff was in the child’s best interests, challenging its findings on factors (a)-(d) and (k). The court concluded that, in light of “the limited amount of time defendant spent with the child, the trial court’s findings regarding factor (a) were not against the great weight of the evidence.” Further, given “plaintiff’s bond with the child, the lack of time defendant spent with his other daughter, particularly his failure to exercise summer parenting time, and the fact that plaintiff demonstrated that she would continue to raise the child in the Presbyterian Church,” its findings as to factor (b) were not against the great weight of the evidence. In light of her “demonstrated ability to provide for the child, and the fact that defendant would need to provide for another child in the near future,” the findings on factor (c) were also not against the great weight of the evidence. As to factor (d), the child has lived her whole life (while short) with plaintiff, and defendant’s living situation was uncertain. Finally, as to factor (k), “it was undisputed that defendant violated a personal protection order plaintiff obtained against him, he continued to enter plaintiff’s workplace, and he followed her and drove by her home and workplace on several occasions.”

 

e-Journal #: 65731
Case: In re Guardianship of Montgomery
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Sawyer, Hoekstra, and Beckering

Issues:

Dispute over guardianship of a child; In re Bibi Guardianship; The best interest factors in MCL 700.5101(a); Harmless error in the trial court’s factual findings; MCR 2.613(A); Weighing the evidence; MacIntyre v. MacIntyre; Credibility; In re TK; Lawyer guardian ad litem (LGAL)

Summary:

Holding that except for one harmless error, the probate court’s factual findings in this guardianship dispute were not clearly erroneous, and that it did not abuse its discretion in appointing the child’s paternal uncle (T) as the child’s guardian, the court affirmed. Two days after their daughter, the child’s mother, died of an accidental drug overdose, the petitioners filed a petition for guardianship of the child. They were appointed temporary guardians. T later filed a petition for guardianship, which was supported by the child’s incarcerated father. On appeal, petitioners challenged the probate court’s factual findings, and argued that it wrongly weighed the evidence. The court concluded that the probate court’s finding that the maternal grandmother (C) accused the father of killing the mother was supported by T’s testimony about a comment C placed on the father’s Facebook wall the day after the mother died. The court also was not left with a definite and firm conviction that the probate court made a mistake in finding that C told T “he would burn in a lake of fire and threatened his family while in the courthouse immediately after the first evidentiary hearing.” However, the probate court’s finding that C threatened the mother’s ex-husband (J) after that hearing was not supported by the record. However, its error in misidentifying who assaulted J did “not affect substantial justice,” and thus was harmless. The record supported the probate court’s finding that T “was denied an opportunity to bond with the child.” The court declined to “reweigh the evidence and re-evaluate credibility on appeal.” Even if it were inclined to do so, it would find no grounds for disturbing the probate court’s ruling. While petitioners contended that the probate court failed to consider that the child’s therapist, the DHHS investigator, and the LGAL recommended that petitioners be appointed the guardians, the record showed that the investigator and the LGAL “based their recommendations in no small part on” the therapist’s testimony, which was in turn based on information provided by petitioners. Deciding what weight to give that testimony required the probate court to make credibility determinations.

 

e-Journal #: 65801
Case: Kenzie v. Kenzie
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Divorce; Denial of motion to adjourn; Ruffin v. Kent; Custody; Children’s best interests; Deel v. Deel; Established custodial environment; MCL 722.27(1)(c); Statutory best interest factors; MCL 722.23; Eldred v. Ziny; MacIntyre v. MacIntyre; Property division; Sparks v. Sparks; Olson v. Olson; Byington v. Byington; McNamara v. Horner; Attorney fees; Reed v. Reed; MCR 3.206(C)(2); Stackhouse v. Stackhouse

Summary:

The court held that the trial court did not abuse its discretion in denying the defendant-ex-husband’s motion to adjourn the trial, and that its findings as to the best interests of the parties’ children were not against the great weight of the evidence. Further, the property division was equitable, and the trial court did not abuse its discretion in granting the plaintiff-ex-wife $12,000 in attorney fees. As to the motion to adjourn, while this was “not a case where the moving party had requested ‘numerous past continuances,’ defendant did fail to exercise due diligence by properly responding to discovery requests, and there was no injustice” to him due to the denial of the motion. His attorney “did not request an adjournment to complete discovery, but rather for more time to respond to discovery. In this situation, going to trial without this discovery would have prejudiced plaintiff and not defendant.” The court found that denying the motion “was not outside the range of reasonable and principled outcomes.” It also rejected defendant’s claim that the trial court erred in denying him joint legal and physical custody of the children. “The trial court’s award of sole legal and physical custody to plaintiff with successively increasing parenting time to defendant based on his continued negative drug testing was not an abuse of discretion.” Given his “behavior at trial and throughout the pendency of the divorce, this was a fair custody award that essentially granted joint physical custody to each party on condition” that he show “he is no longer abusing drugs.” The trial court’s ruling considered “the fact that for a significant portion of the marriage defendant had been a committed father” and shown a capacity to provide the children with love and proper guidance. It was “rightly concerned with defendant’s drug use and his unwillingness to accept responsibility for the harm it had caused the children.” The court also held that the trial court’s “near equal division of the marital property” was fair. As to attorney fees, it was “correct to label defendant’s conduct unreasonable.” At every turn, he “obstructed the mediation and discovery process that would have allowed the case to reach a settlement posture.” Affirmed.

 

e-Journal #: 65405
Case: Geering v. King
Court: Michigan Court of Appeals ( Order )
Judges: O’Brien, Hoekstra, and Boonstra

Issues:

Grandparenting time; Zawilanski v. Marshall; Situation where both parents object to a grandparent’s motion for grandpareting time; MCL 722.27b(5); Brinkley v. Brinkley; Defining “fit” as used in MCL 722.27b; The Child Custody Act (MCL 722.21 et seq.); Troxel v. Granville; DeRose v. DeRose; Presumption that the Legislature acts with knowledge of current judicial interpretations; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; Re-enactment of a statute after its provisions were construed by the court; GMAC LLC v. Department of Treasury; Whether the trial court’s finding that the parents were unfit was against the great weight of the evidence; Keenan v. Dawson; Fletcher v. Fletcher

Summary:

In an order, the court amended its published opinion (see e-Journal # 65373 in the 6/15/17 edition) to correct a clerical error. It amended the sentence in the last paragraph on page 6 to read: “Accordingly, because the trial court’s finding that Geering and King were unfit parents was against the great weight of the evidence, we reverse the circuit court’s order granting Robinson’s motion for grandparenting time and remand this matter for the entry of an order denying his motion.” The opinion remained unchanged in all other respects.

 

e-Journal #: 65553
Case: Fante v. Nova
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Fort Hood, Cavanagh, and Ronayne Krause

Issues:

Modification of child custody; The Child Custody Act (CCA); MCL 722.27; Pierron v. Pierron; Principle that removing children from an established custodial environment (ECE) effectuates a change in custody; Shade v. Wright; Principle that the CCA’s requirements cannot be sidestepped by calling a change “temporary”; Mann v. Mann; Requirement that the trial court independently consider the best interest factors; Rivette v. Rose-Molina; Vodvarka v. Grasmeyer; Irrelevance of the propriety of how an ECE came about; Hayes v. Hayes; Parenting time changes; Demski v. Petlick; Effect of “minor tinkering with parenting time”; Lieberman v. Orr; Discretion to dismiss an action or claim with prejudice for a party’s failure to appear at a duly scheduled hearing; MCR 2.504(B)(1); Zerillo v. Dyksterhouse; Brenner v. Kolk; Requirement that the trial court evaluate all available options on the record; Bloemendaal v. Town & Country Sports Ctr., Inc.; Vicencio v. Ramirez; Remand for a new child custody hearing; Rittershaus v. Rittershaus; Consideration of up-to-date information on remand; Fletcher v. Fletcher

Summary:

Concluding that the trial court’s disposition of the defendant-father’s motion to modify custody was “premature” despite his failure to appear for an evidentiary hearing, and that it “grossly abused its discretion by entering an order affecting the custody of the children without engaging in the analyses required by” the CCA, the court vacated the challenged orders and remanded for further proceedings. In 2015, he moved “to modify custody after plaintiff was charged with misdemeanor child abuse.” He later successfully filed an ex parte motion for emergency modification of the custody arrangement before an evidentiary hearing. The “criminal charges were resolved by a directed verdict in plaintiff’s favor.” An evidentiary hearing was adjourned but the trial court entered an order granting plaintiff “temporary physical custody” pending a rescheduled evidentiary hearing on defendant’s 2015 motion. He failed to appear at that hearing. As an initial matter, the court found that “the trial court’s admonition to defendant that the judge was ‘the guy paying for it’ when defendant expressed regret for having had a relationship with plaintiff goes entirely too far.” Further, while “a trial court has the discretion to dismiss an action or claim with prejudice when a party fails to appear at a duly scheduled hearing,” this is a drastic step and “the trial court failed to address the propriety of dismissal or articulate an analysis of the factors typically involved in a decision to dismiss.” The court noted that the “central problem” in this case was “common” and “somewhat intractable” – while trial courts have (and should have) the power to issue orders “removing children from unsafe environments and placing them in a safe” one, “calling it ‘placement’ or ‘temporary’ or ‘emergency’ or any similar euphemisms does not change the true nature of such an order: if the children involved are in” an ECE, removing them from it “effectuates a change in custody.” By the time of the orders appealed here, “the children had been in defendant’s care for a considerable time, raising a serious possibility” that they had an ECE with him. His failure to appear “may be cause for imposing sanctions” on him, but it was not a basis for altering custody.

 

e-Journal #: 65733
Case: Bauer v. Waidelich
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gleicher, M.J. Kelly, and Shapiro

Issues:

Divorce; Change of custody; Fletcher v. Fletcher; Kubicki v. Sharpe; Vodvarka v. Grasmeyer; Proper cause or change of circumstances; Kaeb v. Kaeb; Shann v. Shann; Whether the trial court should have accepted as true all allegations in defendant-father’s verified petition as plaintiff-mother did not file a verified answer in response; MCR 2.114(B)(2); Jackson v. City of Detroit Bd. of Educ.; MCR 2.119(B)(1)

Summary:

Holding that the trial court’s findings did not preponderate against the evidence, the court affirmed its decision in this custody case. The parties have repeatedly returned to the court system to resolve parenting disputes following their acrimonious divorce. The defendant-father asked the trial court to modify the equal parenting time arrangement and award him sole physical custody of the two children based on parental alienation. The trial court considered the evidence and allegations and determined that since it last resolved a parenting dispute between the parties, no change in circumstances had occurred or proper cause established to revisit the custody award. Thus, it did not further consider his request. “This determination did not preponderate against the evidence.” It did not conduct an evidentiary hearing to determine if a change in custody would be in the children’s best interests because it determined that defendant had not made the prerequisite showing of proper cause or change in circumstances. This was a difficult case and the court appreciated his concerns as to the impact on the children of the plaintiff-mother’s CPS reports. However, it could not conclude that the trial court’s findings preponderated against the evidence. First and foremost, the trial court had the opportunity to observe her first-hand and found believable her statement that she acted out of real concern for the children and not to alienate them from the father. Similarly, the trial court expressed doubt that she was the individual who made the CPS complaint as to sexual abuse. Rather, the trial court opined that the children’s therapist, a mandatory reporter, likely contacted the agency. The court may not second guess the trial court’s assessment of the witness’s credibility in this regard. Even accepting that plaintiff had filed the CPS complaints, the trial court determined that they were made out of a legitimate concern for her children’s welfare. Specifically, she was validly concerned that defendant allowed her father around the children given his history of child sexual abuse. The trial court had already acknowledged the merit of her complaint and entered an order accordingly. Her second CPS complaint as to medical issues was valid, in the trial court’s estimation, because defendant had pursued treatment for the children without her knowledge and approval.

 

e-Journal #: 65803
Case: Johnson v. Johnson
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Parenting time; Whether the modified parenting time schedule was in the children’s best interests; Fletcher v. FletcherShade v. Wright; Whether certain provisions applied only to the plaintiff-mother

Summary:

The court could not conclude that the trial court made factual findings against the great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal error on a major issue in modifying the parenting time schedule. Thus, it affirmed the order granting the plaintiff-mother’s motion to change the domicile of the parties’ children, and modifying the parenting time schedule. She challenged only the parenting time portion of the order, arguing that the parenting time schedule “was unfair and not in the children’s best interests. In particular,” she challenged the amount of parenting time awarded to the defendant-father, the flexible Skype or phone schedule, “and the requirement that she pay the expenses to transport the children to and from Michigan.” However, she “did not adequately challenge the factual predicate for the conclusions.” Under the circumstances, to the extent the referee’s factual findings were applicable to her arguments on appeal, she failed to show that the evidence clearly preponderated in the opposite direction of the referee’s findings, as adopted by the trial court, such that they were against the great weight of the evidence. The “referee and trial court correctly ruled that, where a change of parenting time does not result in a change to a child’s established custodial environment, the court is not required to explicitly list or discuss the statutory best-interests factors in the Child Custody Act,” and the factors listed in the parenting time statute, although both were relevant to a determination of the children’s best interests. The court was not persuaded that the challenged parenting time provisions rendered “the adopted parenting time schedule ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’” Under the circumstances, the court held that the fact “the new schedule would provide defendant with more time with the children and would allow him to have custody for the entire summer, but would lessen his visitation time over the school year, is not so unreasonable as to constitute a palpable abuse of discretion.” As to plaintiff’s inability to share certain holidays, given that she “will still see the children consistently throughout the larger span of the school year,” this provision was not so unreasonable that it constituted an abuse of discretion.

 

e-Journal #: 65802
Case: Miller v. Johnson
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh, Meter, and M.J. Kelly

Issues:

Custody; The Child Custody Act (MCL 722.21 et seq.); Proper cause or a change of circumstances; Vodvarka v. Grasmeyer; Brausch v. Brausch; Shade v. Wright; Child support; A final order appealable by right; MCR 7.202(6)(a)(iii); An order that does not change the amount of a parent’s time with the child; Ozimek v. Rodgers; Parenting time; MCL 722.27a(7); Manuel v. Gill; Whether the trial court should have conducted a de novohearing on the objections to the referee’s recommendations; MCR 3.215(E)(4) & (F)(2)

Summary:

Holding that the trial court applied the wrong standard to the plaintiff-mother’s motion for a change of legal custody, the court reversed the award of sole legal custody to her and remanded for an order denying her motion. It also held that the defendant-father’s objections to the referee’s child support recommendations were not properly included in his claim of appeal by right, and rejected his claim that the statutory parenting time factors were not properly considered. His “failures of preservation and presentation” were fatal to his claim that the trial court should have conducted a de novo hearing on his objections to the referee’s recommendations. Faced with two motions to change custody (plaintiff’s motion as to legal custody and defendant’s motion to change physical custody), the trial court “was required to determine separately whether each party could establish proper cause or change of circumstances sufficient to reopen the custody issues.” However, it only applied the Vodvarka standard for proper cause or change of circumstances to defendant’s motion. It applied the standard set forth in Shade to plaintiff’s motion, on the basis that changing legal custody would not affect the child’s established custodial environment. However, Shade “expressly differentiated between custody decisions and parenting time” decisions and “is wholly inapplicable to custody decisions.” Further, Vodvarka made no distinction between change in physical and legal custody. The “Vodvarkastandard has been applied without such a distinction” in many cases, and “in cases explicitly dealing with changes in legal custody.” Since the trial court evaluated the evidence and found that, “under Vodvarka, there was insufficient evidence of proper cause or change of circumstances to reopen the issue of physical custody,” there was no need to remand for application of the proper standard as to the issue of legal custody. Because the challenged order as to child support did not change the amount of time either parent spends with the child, it did not affect custody and was not a final order appealable by right under MCR 7.202(6)(a)(iii). Affirmed in part, reversed in part, and remanded.

 

e-Journal #: 65429
Case: White v. Garber
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Cavanagh and Fort Hood; Dissent – Servitto

Issues:

Uniform Child-Custody Jurisdiction & Enforcement Act (UCCJEA) (MCL 722.1101 et seq.); Jurisdiction; White v. Harrison-White; Cheesman v. Williams; MCL 722.1201; “Home state” defined; MCL 722.1102(g); MCL 722.1206; Personal protection order (PPO)

Summary:

Holding that the trial court’s decision to refrain from exercising jurisdiction did not constitute an abuse of discretion, the court affirmed its order dismissing the plaintiff-father’s child custody complaint. He argued that the trial court erred in concluding that it did not have jurisdiction where the defendant-mother had already commenced child-custody proceedings in Tennessee. Notably, Michigan was not the child’s home state, given that the child did not live here for six consecutive months. The record revealed that at the time defendant initiated legal proceedings in Tennessee, she and the child were residing there, and had just moved back to Tennessee in 10/16. The record reflected that she was solely in charge of the child’s care and maintenance, because plaintiff was in Michigan and had been enjoined from contacting her or the child after the trial court entered a PPO “following his violent and suicidal behavior with a loaded firearm in the presence of defendant.” The PPO enjoined him from spending parenting time with the child. It also appeared from the record that defendant and the child were close to her family and friends that lived in Tennessee. Thus, it was clear that defendant and the child “had a significant connection to Tennessee, as opposed to Michigan, as contemplated by MCL 722.1201(b)(i).” The record also contained “[s]ubstantial evidence” as to the child’s “care, protection, training and personal relationships” in Tennessee. The trial court correctly concluded that it did not have jurisdiction pursuant to MCL 722.1201. As to MCL 722.1206(2), the court’s review of the statutory text confirmed that “this statutory provision applies when a Michigan court has jurisdiction pursuant to the UCCJEA.” Thus, “where the trial court expressly found that it lacked jurisdiction, there would be little utility, as a procedural matter, for it to confer with the Tennessee court to determine the appropriate forum” for the case as set forth in MCL 722.1206(2). The court recognized the same principle in Cheesman, in the context of reviewing a trial court’s determination under MCL 722.1207. The Cheesman court “observed that where a trial court concludes that it does not have jurisdiction, it cannot ‘subsequently decline to exercise jurisdiction that it did not possess.’” Affirmed.

 

e-Journal #: 65731
Case: In re Guardianship of Montgomery
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Sawyer, Hoekstra, and Beckering

Issues:

Dispute over guardianship of a child; In re Bibi Guardianship; The best interest factors in MCL 700.5101(a); Harmless error in the trial court’s factual findings; MCR 2.613(A); Weighing the evidence; MacIntyre v. MacIntyre; Credibility; In re TK; Lawyer guardian ad litem (LGAL)

Summary:

Holding that except for one harmless error, the probate court’s factual findings in this guardianship dispute were not clearly erroneous, and that it did not abuse its discretion in appointing the child’s paternal uncle (T) as the child’s guardian, the court affirmed. Two days after their daughter, the child’s mother, died of an accidental drug overdose, the petitioners filed a petition for guardianship of the child. They were appointed temporary guardians. T later filed a petition for guardianship, which was supported by the child’s incarcerated father. On appeal, petitioners challenged the probate court’s factual findings, and argued that it wrongly weighed the evidence. The court concluded that the probate court’s finding that the maternal grandmother (C) accused the father of killing the mother was supported by T’s testimony about a comment C placed on the father’s Facebook wall the day after the mother died. The court also was not left with a definite and firm conviction that the probate court made a mistake in finding that C told T “he would burn in a lake of fire and threatened his family while in the courthouse immediately after the first evidentiary hearing.” However, the probate court’s finding that C threatened the mother’s ex-husband (J) after that hearing was not supported by the record. However, its error in misidentifying who assaulted J did “not affect substantial justice,” and thus was harmless. The record supported the probate court’s finding that T “was denied an opportunity to bond with the child.” The court declined to “reweigh the evidence and re-evaluate credibility on appeal.” Even if it were inclined to do so, it would find no grounds for disturbing the probate court’s ruling. While petitioners contended that the probate court failed to consider that the child’s therapist, the DHHS investigator, and the LGAL recommended that petitioners be appointed the guardians, the record showed that the investigator and the LGAL “based their recommendations in no small part on” the therapist’s testimony, which was in turn based on information provided by petitioners. Deciding what weight to give that testimony required the probate court to make credibility determinations.

 

e-Journal #: 65734
Case: Kimball v. Pearson
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gleicher, M.J. Kelly, and Shapiro

Issues:

Motion to modify child custody; A change of circumstances or proper cause; MCL 722.27(1)(c); Kubicki v. Sharpe; Vodvarka v. Grasmeyer; Motion for reconsideration; Charbeneau v. Wayne Cnty. Gen. Hosp.; Principle that the primary goal of child custody proceedings is the child’s best interests; Fletcher v. Fletcher; Whether the trial court should have conducted an evidentiary hearing; Whether any dispute as to attorney fees was ripe; King v. Michigan State Police Dep’t; Department of Health & Human Services (DHHS)

Summary:

While the trial court did not err in initially denying the defendant-father’s motion to modify custody of the parties’ children without conducting an evidentiary hearing, the court held that it should have set the matter for a hearing after he presented the additional evidence included in his motion for reconsideration. Thus, it vacated the order denying his motion and remanded for an evidentiary hearing. It retained jurisdiction and issued an order with its opinion setting time frames for the proceedings on remand. As to the evidence supporting the original motion, the “trial court’s finding that the parties had disagreements about practically everything” was supported by the record. Further, the allegation of abuse by the plaintiff-mother’s new husband (R) was not substantiated by the DHHS. The initial evidentiary support he presented as to his allegations of parental alienation consisted primarily of a letter from the family’s court-appointed counselor (C). However, this letter combined with a letter from the family’s therapist (L) that defendant included in support of his motion for reconsideration “should have prompted the trial court to schedule an evidentiary hearing. [L’s] letter detailed serious concerns that plaintiff was attempting to alienate the children from defendant and that the children, particularly DP, had been subject to emotional and physical abuse at the hands of” R. The court found the contents of L’s letter “at best, disturbing,” and if true, the allegations had “the potential to have a significant effect on” the children’s well-being. “While the specific instance of DP being hit with the handle of a hammer was not” substantiated by the DHHS, L’s letter alleged and detailed “a chronic history of emotional and physical abuse.” This letter, when combined with C’s letter, showed “that two professionals, both of whom have spent time with the children, have grave concerns that plaintiff is engaging in active efforts to alienate” them from defendant and possibly subjecting them “to emotional or even physical abuse at the hands of her new husband.” If the allegations are true, the conditions surrounding the children’s custody “have materially changed in a manner that could have a significant impact” on their well-being.

 

e-Journal #: 65731
Case: In re Guardianship of Montgomery
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Sawyer, Hoekstra, and Beckering

Issues:

Dispute over guardianship of a child; In re Bibi Guardianship; The best interest factors in MCL 700.5101(a); Harmless error in the trial court’s factual findings; MCR 2.613(A); Weighing the evidence; MacIntyre v. MacIntyre; Credibility; In re TK; Lawyer guardian ad litem (LGAL)

Summary:

Holding that except for one harmless error, the probate court’s factual findings in this guardianship dispute were not clearly erroneous, and that it did not abuse its discretion in appointing the child’s paternal uncle (T) as the child’s guardian, the court affirmed. Two days after their daughter, the child’s mother, died of an accidental drug overdose, the petitioners filed a petition for guardianship of the child. They were appointed temporary guardians. T later filed a petition for guardianship, which was supported by the child’s incarcerated father. On appeal, petitioners challenged the probate court’s factual findings, and argued that it wrongly weighed the evidence. The court concluded that the probate court’s finding that the maternal grandmother (C) accused the father of killing the mother was supported by T’s testimony about a comment C placed on the father’s Facebook wall the day after the mother died. The court also was not left with a definite and firm conviction that the probate court made a mistake in finding that C told T “he would burn in a lake of fire and threatened his family while in the courthouse immediately after the first evidentiary hearing.” However, the probate court’s finding that C threatened the mother’s ex-husband (J) after that hearing was not supported by the record. However, its error in misidentifying who assaulted J did “not affect substantial justice,” and thus was harmless. The record supported the probate court’s finding that T “was denied an opportunity to bond with the child.” The court declined to “reweigh the evidence and re-evaluate credibility on appeal.” Even if it were inclined to do so, it would find no grounds for disturbing the probate court’s ruling. While petitioners contended that the probate court failed to consider that the child’s therapist, the DHHS investigator, and the LGAL recommended that petitioners be appointed the guardians, the record showed that the investigator and the LGAL “based their recommendations in no small part on” the therapist’s testimony, which was in turn based on information provided by petitioners. Deciding what weight to give that testimony required the probate court to make credibility determinations.

 

e-Journal #: 65749
Case: Campean v. Campean
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey, Meter, and Shapiro

Issues:

Motion for a change of parenting time (equal parenting time); MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Frowner v. Smith; Request for a minor increase in parenting time that would not amount to a change in custody; Shade v. Wright; Kaeb v. Kaeb; Distinguishing Shade & Kane v. Kane

Summary:

The court held that the trial court did not abuse its discretion in denying the defendant-father’s motion for a change in parenting time, including its denial of his request for an increase in parenting time that would fall short of a change in custody. He did not dispute that his request for equal parenting time would result in a change of custody, but contended that he met the threshold showing of a change in circumstances sufficient for the trial court to revisit the previously existing custody order. The last custody order was entered in 2012, and, at that time, he was traveling approximately 45 nights out of the year and worked long hours. Now, he claimed that his work schedule has become more flexible and that he spends, at most, four nights traveling each year. Also, he claimed there has been a change of circumstances because he now lives in a stable family living environment, i.e., he bought a house with his fiancé where they raise the child’s half-sibling. Finally, defendant claimed that his mother is living with him for at least nine months out of the year and that she can help care for the child when defendant is at work. Despite his “claim to the contrary, these kinds of changes can be appropriately characterized as those normal life changes that occur during the life of a child. As the trial court properly pointed out, these changes focus on defendant and his schedule, rather than on” the child and her environment, behavior, and well-being. Thus, the trial court did not abuse its discretion when it denied his request for an evidentiary hearing to determine whether equal parenting time was in her best interest. Whether the trial court erred in denying his request for a minor increase in his parenting time that would not amount to a change in custody was a much closer call. He was “correct that substantial changes in a parent’s schedule can be a consideration in determining whether that parent has made a sufficient threshold change in circumstances showing to justify a parenting time hearing. A significant change in availability can be a consideration when ruling on a motion for an increase in parenting time.” However, the court did not believe the trial court’s “ultimate decision that he had not met the threshold showing for a parenting time hearing constituted an abuse of its discretion.” Also, his reliance on Shade and Kane was misplaced as each case was distinguishable. Affirmed.

 

e-Journal #: 65870
Case: Ahmed v. Ahmed
Court: U.S. Court of Appeals Sixth Circuit ( Published Opinion )
Judges: Cole and Rogers; Concurrence – Gibbons

Issues:

Action under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention); The International Child Abduction Remedies Act (ICARA); 22 USC § 9001 et seq.; “Wrongful retention” under the Hague Convention; March v. Levine; § 9003(e)(1); Friedrich v. Friedrich (Friedrich I & II); Holder v. Holder (9th Cir.); Clear error standard of review; United States v. Yancy; The children’s “habitual residence” under the Hague Convention; Robert v. Tesson; Simcox v. Simcox; Jenkins v. Jenkins; The “shared parental intent standard” for very young children; Gitter v. Gitter (2d Cir.); Nicolson v. Pappalardo (1st Cir.); Feder v. Evans-Feder (3d Cir.); Redmond v. Redmond (7th Cir.); Panteleris v. Panteleris (Unpub. 6th Cir.); Mauvais v. Herisse (1st Cir.); Guzzo v. Cristofano (2d Cir.); Karkkainen v. Kovalchuk (3d Cir.)

Summary:

The court affirmed the district court’s denial of the petitioner-father’s ICARA claim that his wife, the respondent-mother, wrongfully retained their infant children in Tennessee where he failed to establish by a preponderance of the evidence that the United Kingdom was the children’s “habitual residence” when she retained them. The court noted that in determining children’s habitual residence under the Hague Convention, it has “generally preferred the acclimatization standard because it serves one of the main purposes of the Hague Convention: ensuring a child is not kept from her family and social environment.” However, it did not reach the issue of especially young children in Friedrich I, and it determined that “incorporating the shared parental intent standard in cases concerning especially young children would mean addressing a gap, not overturning precedent.” The court joined other circuits and concluded that “it is appropriate to consider the shared parental intent of the parties in cases involving especially young children who lack the cognizance to acclimate to any residence.” It noted “the difficulty, if not impossibility, of applying the acclimatization standard to especially young children.” The court made “no changes to the acclimatization standard itself,” and stated that the determination of when that standard “is impracticable must largely be made by” the district courts. The district court determined that there was “‘no settled mutual intent during the children’s lives and much of Mrs. Ahmed’s pregnancy.’” The court agreed, concluding that “the district court’s detailed factual findings establish that the Ahmeds’ mutual intent for where their children would live was either unclear or absent from the time the children were conceived until Mrs. Ahmed retained them. Accordingly, Mr. Ahmed has not proven by a preponderance of evidence, under either standard, that the United Kingdom was the children’s habitual residence when Mrs. Ahmed traveled with them” to the U.S.

 

 

e-Journal #: 65400
Case: Lessard v. Londo
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gadola, Talbot, and Gleicher

Issues:

Custody; Pierron v. Pierron; The Child Custody Act (MCL 722.21 et seq.); The statutory best interest factors; MCL 722.23; Factors (c), (d), (f), (j), & (l); Eldred v. Ziny; Berger v. Berger; Fletcher v. Fletcher; Credibility; Shann v. Shann; Change of circumstances or proper cause for a custodial change under MCL 722.27(1)(c); Kubicki v. Sharpe; Established custodial environment; Phillips v. Jordan; Limited parenting time; Pickering v. Pickering; MCL 722.27a(1) & (7); Shade v. Wright

Summary:

The court held that under the circumstances, it could not conclude that the trial court abused its discretion in maintaining the child’s (EL) physical custody with the defendant-mother (Londo) while requiring the parties to work together to make decisions for the child. It also found no error in the trial court’s parenting-time award. Thus, it affirmed the trial court’s ruling that it was in EL’s best interests to remain with the mother while gradually increasing her visits with the plaintiff-father (Lessard). He challenged the trial court’s custody ruling, as well as its underlying findings as to best-interest factors (c), (d), (f), (j), and (l). The trial court first determined that EL’s established custodial environment was with the mother and maternal grandparents, and Lessard did not challenge that ruling. The trial court never made the threshold determination whether he established a change in circumstances or proper cause to change custody. However, the court did not remand for reconsideration because the trial court correctly weighed the best-interest factors and determined that no change in custody was warranted. The court concluded that none of the trial court’s findings on the challenged factors were against the great weight of the evidence, and held that the trial court’s “custody determination was well within its discretion. After reviewing the totality of the best-interest factors,” the trial court rendered a judgment that was in EL’s best interest. She has an established custodial environment with Londo, who has been her primary caretaker since birth. Lessard has never lived in the same city as EL. Because of his proximal distance, he has not yet developed a parent-child bond with her.

 

 

e-Journal #: 65405
Case: Geering v. King
Court: Michigan Court of Appeals ( Order )
Judges: O’Brien, Hoekstra, and Boonstra

Issues:

Grandparenting time; Zawilanski v. Marshall; Situation where both parents object to a grandparent’s motion for grandpareting time; MCL 722.27b(5); Brinkley v. Brinkley; Defining “fit” as used in MCL 722.27b; The Child Custody Act (MCL 722.21 et seq.); Troxel v. Granville; DeRose v. DeRose; Presumption that the Legislature acts with knowledge of current judicial interpretations; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; Re-enactment of a statute after its provisions were construed by the court; GMAC LLC v. Department of Treasury; Whether the trial court’s finding that the parents were unfit was against the great weight of the evidence; Keenan v. Dawson; Fletcher v. Fletcher

Summary:

In an order, the court amended its published opinion (see e-Journal # 65373 in the 6/15/17 edition) to correct a clerical error. It amended the sentence in the last paragraph on page 6 to read: “Accordingly, because the trial court’s finding that Geering and King were unfit parents was against the great weight of the evidence, we reverse the circuit court’s order granting Robinson’s motion for grandparenting time and remand this matter for the entry of an order denying his motion.” The opinion remained unchanged in all other respects.

 

 

e-Journal #: 65373
Case: Geering v. King
Court: Michigan Court of Appeals ( Published Opinion )
Judges: O’Brien, Hoekstra, and Boonstra

Issues:

Grandparenting time; Zawilanski v. Marshall; Situation where both parents object to a grandparent’s motion for grandpareting time; MCL 722.27b(5); Brinkley v. Brinkley; Defining “fit” as used in MCL 722.27b; The Child Custody Act (CCA) (MCL 722.21 et seq.); Troxel v. Granville; DeRose v. DeRose; Presumption that the Legislature acts with knowledge of current judicial interpretations; Gordon Sel-Way, Inc. v. Spence Bros., Inc.; Re-enactment of a statute after its provisions were construed by the court; GMAC LLC v. Department of Treasury; Whether the trial court’s finding that the parents were unfit was against the great weight of the evidence; Keenan v. Dawson; Fletcher v. Fletcher

Summary:

In an issue of first impression for a Michigan court, the court incorporated the definition of “fit” set forth in Troxel (“a parent who ‘adequately cares for his or her children’”) into MCL 722.27b. It then held that the trial court’s finding that the plaintiff-father and defendant-mother were unfit parents was against the great weight of the evidence. Thus, it reversed the order granting the intervener-grandfather’s motion for grandparenting time, and remanded for entry of an order denying his motion. The CCA does not define “fit” or “unfit” in the context of MCL 722.27b, and no Michigan court had defined the term in this context. However, the U.S. Supreme Court defined “fit” in Troxel, a decision that led the Michigan Supreme Court to declare a previous version of Michigan’s grandparenting statute unconstitutional in DeRose. Troxel and DeRose led to the amendment of MCL 722.27b to its present form. Thus, the court adopted the Troxel definition of fit. Applying the definition, it concluded that the record did not support a determination that either parent “failed to adequately care for their children,” and the trial court’s “conclusion to the contrary clearly preponderated in the opposite direction.” While the trial court’s “analysis largely focused on the parents’ failure to resolve various parenting issues during the contentious proceedings” before and after the divorce, their “relationship has significantly improved since they resolved the remaining custody and parenting-time issues while this motion was pending.” Although the children struggled during the custody proceedings with frequently changing households, “and the parents failed to effectively communicate and resolve” disagreements, the record showed that, “generally speaking, those concerns are largely concerns of the past.” Further, the primary allegations leading to several Child Protective Services’ investigations were not substantiated. While the court did not necessarily agree with the parents’ alleged decision to largely exclude the grandfather from the children’s lives, it could not deprive them of their constitutionally protected right to raise their children as they see fit – as two fit parents, the decision was for them to make, not the court or the trial court.

 

 

 

e-Journal #: 65358
Case: In re JJW & ELW
Court: Michigan Court of Appeals ( Published Opinion )
Judges: Per Curiam – Sawyer, Saad, and Riordan

Issues:

The Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); The Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq.); Authority to consent to adoptive placement; The Michigan Children’s Institute’s (MCI) authority to consent; MCL 400.203(2) & 400.209; Whether the ICWA or the MIFPA allowed the respondent-agency or the Tribe to withdraw consent after entry of the order placing the children; § 1913(c); In re Kiogima; MCL 712B.13; “Indian custodian” defined; MCL 712B.3(n); A “child placing agency”; MCL 710.22; “Indian tribe” or “tribe” defined; MCL 712B.3(o); Procedure that follows consent to adoption; MCL 710.51; MCL 710.51(3); Reliance on standing to support the decision to rescind the order placing the children; Oglala Sioux Tribe v. Van Hunnik (WD SD); Parens patriae concept; Coldsprings Twp. v. Kalkaska Cnty. Zoning Bd. of Appeals; Principle that standing in no way depends on the merits of the case; Trademark Props. of MI, LLC v. Federal Nat’l Mtg. Ass’n; The ICWA’s placement preferences; § 1915(a); Adoptive Couple v. Baby Girl; List of potential placements under the MIFPA; MCL 712B.23; In re KMN; “Until” defined; Authority to deny adoption petition on the basis of the children’s best interests; MCL 710.21a(b); MCL 710.22(g); MCL 710.56; Whether the MIFPA permitted the respondent-father to withdraw his release of parental rights at any time before entry of a final adoption order; MCL 712B.13(3), (5), & (6); The Adoption Code; MCL 710.29

Summary:

In these consolidated appeals, the court held that the respondent-father did not have a right to withdraw his consent to terminate his parental rights under the MIFPA, the ICWA, or the Adoption Code. It also held that neither the ICWA nor the MIFPA allowed rescission of a placement order due to a change in consent by the respondent-agency (Hands Across the Water – HAW) or the Tribe after entry of the placement order. Thus, in Docket No. 335932, it affirmed the trial court’s order denying the father’s motion to withdraw consent to terminate his rights and for the children’s return. In Docket No. 334095, it vacated the trial court’s order rescinding the order placing the children with the petitioners. Because the trial court in that case did not rule on the factual issue of whether adoption was in the children’s best interests or whether circumstances had arisen making adoption undesirable, the court also reversed the order denying petitioners’ petition for adoption and remanded for further proceedings. In the petitioners’ appeal, the primary issues concerned who has the authority to give consent to adoptive placement, and whether the ICWA or the MIFPA allowed HAW or the Tribe to withdraw consent after the placement order was entered. The court held that after the trial court terminated the MCI’s rights and entered the order placing the children with petitioners, “MCI lost any authority to withdraw consent.” The trial court erred in determining that both HAW and the Tribe had such authority under the MIFPA. “Because neither ICWA nor MIFPA granted authority to HAW or the Tribe to withdraw consent after entry of the order placing the children and terminating MCI’s rights, MCL 710.51(3), which precludes the withdrawal of consent after the order terminating MCI’s rights, controls.” The trial court erred in “concluding that a change in the consent of HAW or the Tribe could have any effect on the order placing the children with petitioners.” It also erred in relying on standing to support its decision to rescind the placement order. Further, the court concluded that neither the ICWA’s placement preferences nor the MIFPA’s list of potential placements had any bearing on this case.

 

e-Journal #: 66077
Case: D’itri v. Bollinger
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Hoekstra, Meter, and K.F. Kelly

Issues:

Motion to change custody of the parties’ child; The Child Custody Act (MCL 722.21 et seq.); Pierron v. Pierron; Whether a question of fact existed as to a proper cause or change of circumstances; Vodvarka v. Grasmeyer; Whether an evidentiary hearing should be held; Bielawski v. Bielawski; MCR 3.210(C)(8); Bowling v. McCarrick; Whether the alleged changes in the child’s life were normal life changes; Gerstenschlager v. Gerstenschlager; Statutory best interest factors; MCL 722.23; Consideration of the child’s text messages; MRE 104(a); Attorney fees; MCR 3.206(C)(2)(b); Reed v. Reed; MCR 2.625(A)(1); MCL 600.2591; Kitchen v. Kitchen; Request for remand to a different trial judge; Bayati v. Bayati

Summary:

Concluding that there was evidence to substantiate the plaintiff-mother’s allegations, and that the proper procedure under the circumstances was to hold an evidentiary hearing on the threshold issue of whether there was a proper cause or a change of circumstances, the court vacated the dismissal of her motion to change custody and remanded for a Vodvarka hearing. It also vacated the award of attorney fees to the defendant-father, but denied plaintiff’s request for remand to a different judge. While the parties’ agreed that the child’s (SB) stepmother had died, they strongly disagreed on the impact this had on defendant’s home, his ability to care for SB, his relationship with SB, and “SB’s emotional and mental health.” It was “clear that plaintiff’s claims were not so facially deficient that, if true, they would not constitute a proper cause or a change in circumstances.” She alleged that “the death of a primary caregiver in defendant’s home resulted in material changes to SB’s circumstances, which have had a significant impact on SB’s well-being.” She asserted that SB was “now emotionally disconnected from defendant,” unable to discuss her feelings with him, and “turning to plaintiff for financial and emotional support with increasing frequency. Contrary to defendant’s arguments, these are not merely normal life changes that accompany a child’s growth and development.” They were relevant to best interest factors (a), (c), (e), and (i) – “SB’s respective emotional ties with her parents,” defendant’s “capacity and disposition to provide for SB’s needs,” the permanency of his family unit, and SB’s preference. Where there “are disputed facts and the allegations, if true, constitute proper cause and a change in circumstances, under MCR 3.210(C)(8),” a trial court must decide whether an evidentiary hearing is needed. The court held that in “failing to even consider whether an evidentiary hearing was required, the trial court operated in the wrong legal framework and palpably abused its discretion.” As to attorney fees, the trial court made no finding that plaintiff violated a court order, she did not violate the custody order by seeking to modify it, and her motion could not be considered frivolous.

Full Text Opinion

 

 

e-Journal #: 65868
Case: Bridge v. Bridge
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Boonstra, Ronayne Krause, and Swartzle

Issues:

Divorce; Child support; Borowsky v. Borowsky; 2017 MCSF 2.01(E)(1), (4)(b), & (4)(e); Whether the trial court should have imputed income to the plaintiff-ex-wife; Carlson v. Carlson; Spousal support; Berger v. Berger; Korth v. Korth; Retroactive modification of support order; MCL 552.603(2) & (3); Fisher v. Fisher; Established custodial environment; Pierron v. Pierron; Shulick v. Richards; MCL 722.27(1)(c); Best-interests determination; MCL 722.26a(1); MCL 722.23; MCL 722.23(k); Factors (a), (b), (c), (f), (g), (h), & (j); Child dependency tax exemptions; Fear v. Rogers

Summary:

The court affirmed the parties’ judgment of divorce establishing joint legal custody of the parties’ two children as well as child and spousal support. The defendant-ex-husband argued that the trial court misunderstood the nature of his business, which he asserted led it to erroneously attribute to him an income of $132,000 for child support purposes. The trial court “did not err by disallowing certain business expenses.” He did not “explain how expenses incurred for attending a conference in Wyoming were related to his Lansing-based business.” Although he asserted that “traveling to conferences is part of his job as a salesman, he emphasized that he only can sell his products to neurologists located in the Lansing area.” Also, his tax advisor could not explain which of defendant’s asserted auto expenses were for business and which were personal. “The trial court must add back into a parent’s income insurance, utility, entertainment, and automobile expenses, as well as travel expenses, unless they are ‘inherent in the nature of the business or occupation,’ even if those expenses are tax deductible.” An IRS finding that the expenses are reasonable “is not determinative.” The trial court’s decision as to imputing income “was within the range of reasonable and principled outcomes because it was consistent with defendant’s historical earning ability,” his sales quotas, and his subcontractor’s expected earnings. In her cross-appeal, the plaintiff-ex-wife argued that the trial court erred by changing the children’s legal custody from sole to joint, because it failed to determine their established custodial environment (ECE) and to apply the proper burden of proof. She also argued the trial court’s best-interest analysis was flawed. The court disagreed in all respects. Her arguments on appeal that the trial court did not determine the children’s custodial environment and did not apply the appropriate standard of proof had no merit. Further, it was clear from the record that the trial court determined that a change of legal custody from sole to joint would change the children’s ECE and thus, that defendant had to “present clear and convincing evidence that such a change was in the children’s best interests.”

Full Text Opinion

 

 

e-Journal #: 65733
Case: Bauer v. Waidelich
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Gleicher, M.J. Kelly, and Shapiro

Issues:

Divorce; Change of custody; Fletcher v. Fletcher; Kubicki v. Sharpe; Vodvarka v. Grasmeyer; Proper cause or change of circumstances; Kaeb v. Kaeb; Shann v. Shann; Whether the trial court should have accepted as true all allegations in defendant-father’s verified petition as plaintiff-mother did not file a verified answer in response; MCR 2.114(B)(2); Jackson v. City of Detroit Bd. of Educ.; MCR 2.119(B)(1)

Summary:

Holding that the trial court’s findings did not preponderate against the evidence, the court affirmed its decision in this custody case. The parties have repeatedly returned to the court system to resolve parenting disputes following their acrimonious divorce. The defendant-father asked the trial court to modify the equal parenting time arrangement and award him sole physical custody of the two children based on parental alienation. The trial court considered the evidence and allegations and determined that since it last resolved a parenting dispute between the parties, no change in circumstances had occurred or proper cause established to revisit the custody award. Thus, it did not further consider his request. “This determination did not preponderate against the evidence.” It did not conduct an evidentiary hearing to determine if a change in custody would be in the children’s best interests because it determined that defendant had not made the prerequisite showing of proper cause or change in circumstances. This was a difficult case and the court appreciated his concerns as to the impact on the children of the plaintiff-mother’s CPS reports. However, it could not conclude that the trial court’s findings preponderated against the evidence. First and foremost, the trial court had the opportunity to observe her first-hand and found believable her statement that she acted out of real concern for the children and not to alienate them from the father. Similarly, the trial court expressed doubt that she was the individual who made the CPS complaint as to sexual abuse. Rather, the trial court opined that the children’s therapist, a mandatory reporter, likely contacted the agency. The court may not second guess the trial court’s assessment of the witness’s credibility in this regard. Even accepting that plaintiff had filed the CPS complaints, the trial court determined that they were made out of a legitimate concern for her children’s welfare. Specifically, she was validly concerned that defendant allowed her father around the children given his history of child sexual abuse. The trial court had already acknowledged the merit of her complaint and entered an order accordingly. Her second CPS complaint as to medical issues was valid, in the trial court’s estimation, because defendant had pursued treatment for the children without her knowledge and approval.

Full Text Opinion