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Shade v. Wright

December 2, 2010

CAROLYN MICHELLE SHADE, PLAINTIFF-APPELLEE,
v.
STUART NEIL WRIGHT, JR., DEFENDANT-APPELLANT.



Midland Circuit Court. LC No. 05-008947-DM. Affirmed.

Per curiam.

Before: BORRELLO, P.J., and JANSEN and BANDSTRA, JJ. JANSEN, J. (concurring in the result only).

Defendant, Stuart N. Wright, Jr., appeals as of right an order granting the motion by plaintiff, Carolyn Shade, to modify parenting time with the parties' minor child.*fn1 For the reasons set forth in this opinion, we affirm.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

The parties were married in December 1993; they had one child during the marriage. Plaintiff filed for divorce in September 2005. The parties agreed on a custody and parenting time arrangement that, in part, allowed plaintiff to move with the minor child from Midland, Michigan, to Ohio, and also established a parenting time schedule. The agreement provided that plaintiff would be responsible for all transportation of the child to visitation with defendant as long as the child's residence was more than 100 miles from defendant's residence. The parties' agreement regarding custody and parenting time was incorporated into the judgment of divorce, which was entered on November 29, 2006. The judgment of divorce provided that the parties would share joint legal and physical custody of the minor child, that plaintiff was permitted to move, with the minor child, to Ohio, and that defendant would have parenting time with the minor child two weekends per month, with plaintiff providing all transportation for the minor child to and from defendant's residence. The judgment of divorce also contained provisions regarding holiday parenting time and provided for eight weeks of summer parenting time for defendant, with plaintiff having parenting time every other weekend.

After the judgment of divorce was issued, however, both parties became dissatisfied with the custody and parenting time arrangement that they had agreed to and that had been incorporated into the judgment of divorce. In May 2008, plaintiff filed a petition to modify the order of parenting time, arguing that a change of circumstances warranted the change in parenting time. In December 2008, defendant filed a motion for change of custody, in which he sought sole physical custody of the child.

The trial court held a de novo hearing to consider the parties' competing motions. In an order entered November 30, 2009, the trial court denied defendant's motion for change of physical custody of the child, but it modified the parenting time schedule. Under the new parenting time schedule, defendant had parenting time with the child one extended weekend per month, defendant had parenting time for the entire summer, except during times when the child's sports schedule required her to be at plaintiff's home, and the parties were to equally share in the responsibility to transport the child to parenting time. By granting defendant parenting time for the entire summer, the trial court was attempting to provide defendant with the same number of days of parenting time that he should have been receiving under the parties' agreement. In denying defendant's motion for change of physical custody and modifying parenting time, the trial court did not, on the record or in its order, make explicit findings regarding the existence of proper cause or a change of circumstances or the best interests of the minor child.

Thereafter, defendant moved for reconsideration, and the trial court denied the motion. This appeal ensued.

II. STANDARD OF REVIEW

"Orders concerning parenting time must be affirmed on appeal unless the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Pickering v Pickering, 268 Mich App 1, 5; 706 NW2d 835 (2005). Under the great weight of the evidence standard, this Court should not substitute its judgment on questions of fact unless the facts clearly preponderate in the opposite direction. Rittershaus v Rittershaus, 273 Mich App 462, 473; 730 NW2d 262 (2007). In child custody cases, "[a]n abuse of discretion exists when the trial court's decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Clear legal error occurs "when the trial court errs in its choice, interpretation, or application of the existing law." Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006).

III. ANALYSIS

A. LAW OF THE CASE

As a preliminary matter, we first address defendant's argument that the trial court was bound by the parenting time schedule in the judgment of divorce based on the law of the case doctrine. Whether the law of the case doctrine applies is a question of law that we review de novo. Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). The law of the case doctrine provides that a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case "'where the facts remain materially the same.'" Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000), quoting CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302 NW2d 164 (1981). According to defendant, the court was bound by its implicit determination that the parenting time agreement reached by the parties was in the best interests of the minor child.

The law of the case doctrine does not prohibit the trial court's modification of parenting time in this case. First, a determination regarding a child's best interests is not a question of law, but a question of fact. Second, the original determination of parenting time and the child's best interests was made by the trial court (pursuant to the parties' agreement), not an appellate court. Third, the facts in this case are not materially the same because at the time of the original parenting time order, the minor child was not in high school, and now she is a freshman in high ...


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