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Lieberman v. Orr

Court of Appeals of Michigan

March 7, 2017

JOHN ALLEN LIEBERMAN, Plaintiff-Appellee,
v.
KIMBERLY ANN ORR, formerly known as KIMBERLY ANN LIEBERMAN, Defendant-Appellant.

         Clinton Circuit Court LC No. 13-024442-DM

          Before: M. J. Kelly, P.J., and O'Connell and Beckering, JJ.

          BECKERING, J.

         In this child custody matter, defendant Kimberly Orr appeals as of right the trial court's order granting plaintiff John Lieberman's motion to change parenting time and the children's schools.[1] Defendant contends on appeal that, not only did the proposed change affect the established custodial environment the children had with her, but also by granting plaintiff's motion, the trial court effectively changed primary physical custody of the children from her to plaintiff without reviewing plaintiff's motion under the correct legal framework. We agree, and therefore, we vacate the trial court's order and remand for further proceedings.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         After the parties' marriage dissolved, the trial court entered a consent judgment of divorce in March of 2008 that awarded defendant sole physical custody and the parties' joint legal custody of the two minor children. The consent judgment gave plaintiff parenting time of one midweek overnight per week, every other weekend, four weeks during summer vacation, and alternating holidays. Minor modifications to plaintiff's parenting time schedule were made in 2008 and 2009.

         In July of 2010, defendant moved to change the children's residence from East Tawas to DeWitt, where defendant had obtained a fulltime job. Plaintiff opposed the motion, and countered it with a motion to change custody. Plaintiff asked the court, among other things, to order psychological examinations for the parties and the children and an in camera interview with the children to determine their preferences. Stressing his present involvement and anticipated future involvement in the children's academic development, plaintiff asked the court to "[o]rder a change in custody that awards Plaintiff parenting time during the school year, and Defendant parenting time based upon the testimony elicited at hearing [sic] in this matter." Plaintiff appears to have withdrawn his motion subsequent to the parties' February 23, 2011 stipulated modification of parenting time. Pursuant to the terms of the modification, the children would continue to live with defendant during the school year, and plaintiff would receive parenting time three weekends per month during the school year and all but the first and last weeks of the children's summer vacation. The trial court entered a corresponding, modified uniform child support order showing that plaintiff had 140 overnights per year with the children, and defendant had 225.

         In April of 2013, pursuant to a motion filed by the Iosco County friend of the court, the trial court entered an order transferring the parties' case to Clinton County.[2] In December of 2013, defendant filed a motion requesting parenting time on alternating weekends throughout the year. She based her request on allegations that plaintiff violated parenting time by not ensuring her telephonic access to the children during the children's summer vacation, and on her employer no longer requiring her to work weekends. Plaintiff opposed the motion, arguing that the proposed reduction in his parenting time from 140 to 88 days-a reduction of 52 days-would alter his established custodial environment with the children.

         The referee who heard defendant's motion noted that the parents shared joint legal custody, defendant had "primary physical custody, " and plaintiff had parenting time as provided in the parties' February 23, 2011 stipulated agreement. The referee also found that there was an established custodial environment with each parent, and that the proposed 52-day reduction in plaintiff's parenting-time schedule would change the established custodial environment that the children had with him. Therefore, according to Shade v Wright, 291 Mich.App. 17, 25-28; 805 N.W.2d 1 (2010), resolution of defendant's motion was governed by the legal framework set forth in Vodvarka v Grasmeyer, 259 Mich.App. 499; 675 N.W.2d 847 (2003). Employing this framework, the referee found that defendant had failed to establish the proper cause or change in circumstances necessary to proceed to a hearing to determine whether a change in parenting time was in the best interests of the children. The trial court denied defendant's objection to the referee's recommendation, but told defendant that she could submit for the court's consideration an amended motion proposing a parenting time modification that did not alter plaintiff's established custodial environment. Defendant filed an amended motion, which the court rejected because it reduced plaintiff's parenting time by 20 days, from 140 to 120 days. The court stated that defendant could file a motion that reallocated plaintiff's parenting time, but not one that reduced it.

         In May of 2016, plaintiff filed a motion to "modify parenting time and change schools, " requesting "essentially that the parties swap the current parenting time schedule." Plaintiff based his motion on concerns about the children's academic opportunities and one child's academic performance. Plaintiff contended that the youngest child ended his fourth grade year in the 50thpercentile in reading and 63rd percentile in math, and that the goal should be the 80th percentile. Plaintiff further observed that he had taken the child to Sylvan Learning Center to arrange for the tutoring the child needed to improve academically, and that he would be better than defendant at helping the child achieve his academic potential.[3] In addition, plaintiff noted that the older child had "reached adolescence" and wanted to spend more time with plaintiff, with whom he could explore his interests in history and science. Plaintiff also cited concerns with the children's hygiene, pertaining to regular nail trimming and dental checkups. Plaintiff asserted that the February 23, 2011 stipulated modification of parenting time provided for "both joint legal and physical custody" of the children. He further asserted that, "If the Court was to grant plaintiff's swap of parenting time schedules, because there is no material change in the amount of time the children spend in each household, and both parents would continue to share in providing love, support, and guidance of the minor children, the joint custodial environment would not be changed." Accordingly, plaintiff asserted that the relevant legal framework governing his motion was set forth in Shade v Wright, 291 Mich.App. 17, 25-28; 805 N.W.2d 1 (2010), under which normal life occurrences can constitute a change in circumstances sufficient to proceed to an evidentiary hearing regarding whether the proposed modification of parenting time was in the children's best interests. Plaintiff stated, "If the Court grants Plaintiff Father's modification of parenting time, the minor children will attend The Midland Academy of Advanced and Creative Studies . . . beginning in the academic year 2016-2017."

         In her response to plaintiff's motion, defendant disputed that the parties shared joint physical custody and that plaintiff's proposed change would not significantly change the amount of time the children spent in each household, and contended that plaintiff's proposed changes would alter the established custodial environments that the children have with each parent. Defendant also filed a motion to dismiss plaintiff's motion on the ground that, notwithstanding its label, it was actually a motion to change custody, and plaintiff had not made the threshold showing of a proper cause or change in circumstances as set forth in Vodvarka.

         In its ruling from the bench, the trial court characterized this case as primarily a legal custody issue "about changing schools, " and viewed the parenting time issue as subordinate to the school issue. In the words of the court, "The parenting time request is really if [the school change] is made how can parenting time . . . with each parent be accommodated." The trial court found that an established custodial environment existed with both parents and that changing the children's schools would not affect the established custodial environments. Accordingly, the court determined that, in order to succeed in his motion, plaintiff had to prove by a preponderance of the evidence that changing schools was in the best interests of the children. After addressing all of the statutory best-interest factors, MCL 722.23, and making findings on those relevant to the issue of changing schools, the trial court concluded that a preponderance of the evidence showed that changing schools was in the children's best interest. To accommodate this decision, the court granted plaintiff's motion to modify parenting time, reversing the existing parenting-time order so that plaintiff had 225 overnights per year, and defendant 140. In doing so, the trial court reduced the children's overnights with defendant by 85 days, or nearly three months.

         II. ANALYSIS

         A. STANDARD OF REVIEW

         "All custody orders must be affirmed on appeal unless the circuit court's findings were against the great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court made a clear legal error on a major issue."[4] MCL 722.28; Pierron v Pierron, 282 Mich.App. 222, 242; 765 N.W.2d 345 (2009); aff'd by Pierron v Pierron, 486 Mich. 81; 782 N.W.2d 480 (2010).

The great weight of the evidence standard applies to all findings of fact. A trial court's findings regarding the existence of an established custodial environment and regarding each custody factor should be affirmed unless the evidence clearly preponderates in the opposite direction. An abuse of discretion standard applies to the trial court's discretionary rulings such as custody decisions. Questions of law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law. [Corporan v Henton, 282 Mich.App. 599, 605; 766 N.W.2d 903 (2009) (quotation marks and citations omitted).]

"The applicable burden of proof is a question of law that is reviewed de novo on appeal." Pierron, 282 Mich.App. at 243 (quotation marks and citation omitted).

         B. RELEVANT LEGAL STANDARDS

         The purpose of the Child Custody Act, MCL 722.21 et seq., is to "promote the best interests of the child and to provide a stable environment for children that is free of unwarranted custody changes." Id. at 243. Constant changes in the child's physical custody can wreak havoc on that child's stability, as can other orders that may significantly affect the child's best interests. The Child Custody Act authorizes the trial court to award custody and parenting time arising out of a child custody dispute and imposes a gatekeeping function upon the trial court to ensure the child's stability, as set forth in pertinent part in MCL 722.27:

(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. . . .
(b)Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a.1
(c) Subject to subsection (3)[5], modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. . . . [emphasis added].

         1. PHYSICAL CUSTODY

         Relevant to the case at bar, in a child custody dispute, MCL 722.27(1) allows a court to award custody to one or more of the parties and reasonable parenting time to the parties involved, both in accordance with the best interests of the child. Physical custody refers to a child's living arrangements. The Child Custody Act does not define "physical custody" or the often-used phrases "sole physical custody" and "primary physical custody." However, "[p]hysical custody" is defined under the Uniform Child-Custody Jurisdiction and Enforcement Act, MCL 722.1101 et seq., as "the physical care and supervision of a child." MCL 722.1102(n). Caselaw frequently uses "sole custody" and "primary physical custody" to distinguish an award of custody to one parent from an award of joint physical custody.

         In contrast to awarding sole or primary physical custody to one parent, a trial court has the option of awarding the parties joint custody, i.e., joint legal and joint physical custody, and the court must consider an award of joint custody, at the request of either parent. MCL 722.26a(1). The term "joint physical custody" stems from MCL 722.26a(7)(a), which addresses a situation where "the child resides alternately for specific periods with each of the parents." The term "joint legal custody" stems from MCL 722.26a(7)(b), which addresses a situation where "the parents[] share decision-making authority as to the important decisions affecting the welfare of the child."

         The parties in the instant case agree and the trial court record makes clear that the consent judgment of divorce gave defendant physical custody of the children and plaintiff liberal parenting time, which at the time of the motion at issue, entailed the children spending 140 overnights per year with him. The parties shared joint legal custody, and thus, they shared decision-making authority as to the important decisions affecting the welfare of their children.

         2. PARENTING TIME

         Parenting time is the time a child spends with each parent. "Whereas the primary concern in child custody determinations is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents." Shade, 291 Mich.App. at 28-29. A court bases a parenting-time order on its determination of the best interests of the child, and grants parenting time "in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time." MCL 722.27a.1). The child has a right to parenting time unless the court determines on the record by clear and convincing evidence that parenting time would endanger the child's physical, mental or emotional health. MCL 722.27a(3). The trial court may consider the factors set forth in MCL 722.27a(7), along with the best interest factors provided in MCL 722.23, when granting parenting time. Shade, 291 Mich.App. at 31-32.

         3. MODIFICATION OF PREVIOUS JUDGMENTS OR ORDERS OR ISSUANCE OF NEW ORDERS THAT AFFECT THE ESTABLISHED CUSTODIAL ENVIRONMENT

         As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change in circumstances before the court may proceed to an analysis of whether the requested modification is in the child's best interests. Vodvarka addresses the requisite standards for showing proper cause or a change in circumstances relative to requests to modify child custody. Vodvarka, 259 Mich.App. at 509-514. Shade addresses the requisite standards for showing proper cause or a change in circumstances relative to requests to modify parenting time. Shade, 291 Mich.App. at 28-30. Notably, where a proposed change in circumstances affects a child's established custodial environment, the applicable legal framework for analyzing the proposal is that set forth in Vodvarka. Id. at 27. An established custodial environment exists if "over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to the permanency of the relationship shall also be considered." MCL 722.27(1)(c)

         a. Proper Cause or Change of Circumstances Threshold

         To establish a change in circumstances sufficient for a court to consider modifying a custody order, the movant must prove by a preponderance of the evidence 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." Vodvarka, 259 Mich.App. at 513. "[T]he evidence 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. "[T]o establish 'proper cause' necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court." Id. at 512. As is the case with a change in circumstances, "[t]he appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child's well-being." Id. If the movant does not establish proper cause or a change in circumstances, the trial court is prohibited from holding a child custody hearing:

The plain and ordinary language used in MCL 722.27(1)(c); MSA 25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors. [Id. at 508-509 (quotation marks and citations omitted) (emphasis in Vodvarka).]

         The purpose of this threshold showing "is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances." Corporan, 282 Mich.App. at 603.

         As noted above, "[w]hereas the primary concern in child custody determinations is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents." Id. at 28-29; MCL 722.27a. Thus, although normal life changes typically are insufficient to establish the proper cause or change in circumstances required to proceed to consideration of a child custody order, unless the requested change would alter the established custodial environment, such changes can be sufficient for a court to consider modification of a parenting-time order. See Shade, 291 Mich.App. at 29, 30-31. However, "[i]f a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate." Shade, 291 Mich.App. at 27. In other words, if a change in parenting time alters the established custodial environment, the normal changes that occur in a child's life "[would] not warrant a change in the child's custodial environment." Id. at 29.

         b. Best Interests Analysis and Applicable Burden of Proof

         If the movant seeking to change custody or parenting time successfully establishes proper cause or a change of circumstances under the applicable legal framework, the trial court must then evaluate whether the proposed change is in the best interests of the child by analyzing the appropriate best interest factors. In changes of custody, where the child has an established custodial environment with each parent, the movant must prove by clear and convincing evidence that the proposed change is in the best interests of the child. Foskett v Foskett, 247 Mich.App. 1, 6; 634 N.W.2d 363 (2001). In a parenting-time matter, where the proposed change does not affect the established custodial environment, the movant must prove by a preponderance of the evidence that the change is in the best interests of the child. Shade, 291 Mich.App. at 23. However, as indicated above, where the proposed parenting-time change alters the established custodial environment, the proposal is essentially a change in custody, and Vodvarka governs. Shade, 291 Mich.App. at 27; see also Pierron, 486 Mich. at 92-93 ("[W]hen considering an important decision affecting the welfare of the child . . . a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case."). Thus, after identifying the proper burden of proof, a court then proceeds to consideration of the best interest factors. As this Court explained in Shade:

Both the statutory best interest factors in the Child Custody Act, MCL 722.23, and the factors listed in the parenting time statute, MCL 722.27a([7]), are relevant to parenting time decisions. Custody decisions require findings under all of the best interest factors, but parenting time decisions may be made with findings on only the contested issues. [Shade, 291 Mich.App. at 31-32 (emphasis added).]

         If the movant cannot meet the applicable burden of proof, the court shall not grant the proposed change. MCL 722.27(c).

         C. APPLICATION

         In light of the foregoing legal standards, we conclude that the trial court committed clear legal error in its choice and application of the legal framework under which to analyze plaintiff's motion. Notwithstanding the label plaintiff gave his motion or his inaccurate assertion that the proposed "swap" in parenting time would produce "no material change in the amount of time the children spend in each household, " plaintiff's proposed modifications to parenting time effectively changed physical custody of the children from defendant to plaintiff.

         The parties' judgment of divorce awarded legal custody to both parents, but physical custody of the children to defendant; the judgment did not award the parties joint physical custody.[6] As noted above, an award of physical custody primarily or solely to one party typically entails a situation in which the children receive physical care and supervision primarily from the parent awarded that status. Such is the case here. In accordance with the parties' agreement that defendant would be the children's primary physical custodian, the children in the case at bar have resided with and been cared for and supervised primarily by defendant since entry of the judgment of divorce. Thus, it defies the plain meaning of the word "primary, " as well as rudimentary mathematics, to say that reducing the primary custodian's overnights with the children from 225, or nearly 62% of the calendar year, to 140, or approximately 38% of the calendar year, does not change primary physical custody. By proposing a reduction in the number of overnights the children spend with defendant to a distinct minority of the year, plaintiff was proposing a change in custody, regardless of the label he gave his motion. Accordingly, the proper legal standard under which to review ...


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