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Marik v. Marik

Court of Appeals of Michigan

July 24, 2018

KIMBERLY MARIE MARIK, Plaintiff-Appellee,
v.
PETER BRIAN MARIK, Defendant-Appellant.

          Macomb Circuit Court Family Division LC No. 2011-000651-DM

          Before: Cameron, P.J., and Jansen and O'Connell, JJ.

          CAMERON, P.J.

         Defendant appeals the trial court's order denying his request to change the school enrollment for the parties' minor children and his corresponding request to modify parenting time. Defendant asserts the trial court erred in denying his motion to change the minor children's school enrollment from a public school near plaintiff's home to a parochial school. Additionally, defendant challenges the trial court's denial of his request for an increase of 18 overnights to his parenting time. We conclude that the trial court failed to address the children's established custodial environment, to describe the applicable burden of proof, and did not consider any statutory best-interest factors in deciding the requests as required by our case law. Therefore, we vacate and remand to the trial court to properly address these issues.

         I. BACKGROUND

         The parties divorced in 2011. The judgment of divorce awarded joint legal and physical custody, with plaintiff's home as the minor children's primary residence. As support for his requests, defendant asserts the children will benefit from attending a different school system. Although defendant does not identify any particular deficiency with regard to the children's current educational environment or in their respective academic performances, he contends that their ability to thrive would increase in a different school system he contends is "better." Defendant implies that the change in school enrollment should also coincide with an increase in his parenting time to include an additional 18 overnights with the minor children. The parties currently share joint physical and legal custody, with plaintiff having 55% of the parenting time with the minor children and defendant enjoying 45% of the available parenting time. The parenting time modification requested by defendant would equalize the amount of time the parties have with the minor children.

         The trial court conducted a de novo hearing on June 13, 2016, at which the parties presented their arguments on the request to change the children's school enrollment and the request to modify parenting time. During the hearing, the parties were sworn in and questioned briefly by the trial court. At the conclusion of the hearing, the trial court did not expressly address whether there was an established custodial environment, whether the requests would change that environment, or whether the requests weighed in favor of the individual best-interest factors under MCL 722.23. Instead, the trial court stated that

whether or not we use the clear and convincing standard or the preponderance of the evidence standard in both directions it is my opinion based on everything that I have heard and read that this is something driven by [defendant] who would like to create reasons.
And the reasons that you have come up with . . . really benefit you. There is no problem with your children. They seem to be, as I indicated, thriving. . . .
They are doing well. Their grades are satisfactory. They are young. If there were a problem, then you would know about it.
But in the interim this is exactly the normal life thing that these children might be doing adequate and next year might do superior. We don't know.
But you are anticipating problems because you see problems within the school system. And I agree with [plaintiff's counsel], find a school system that doesn't have some issues.
And so you would prefer to move into Parochial. It's joint. Legal mother doesn't want it. Most important you gave up your argument years ago and so the children are established in this school.
I will not interrupt their weeknights when they are doing the way that they are doing and those things that you can work out, you need to work out. If you are not hearing from the district, you will have to communicate with them that you need to be notified of this. Obviously, he is borderline, I think there should be intelligent discussion about what should occur whether or not additional school is a good idea.

         At the conclusion of the hearing, the trial court dismissed defendant's objections. Defendant appeals, claiming the trial court erred when it denied his motion to change the children's school enrollment and modify parenting time.

         II. PRESERVATION AND STANDARDS OF REVIEW

         "Generally, an issue is not properly preserved if it is not raised before, addressed, or decided by the circuit court or administrative tribunal." AFSCME Council 25 v Faust Pub Library, 311 Mich.App. 449, 462; 875 N.W.2d 254 (2015) (citation omitted). Defendant filed a motion to change the school enrollment and modify the parenting time for the minor children. Plaintiff filed a response and the trial court held a hearing. The trial court denied defendant's motion. As such, the issue is generally preserved for appellate review. However, defendant's argument as to the trial court's improper application of res judicata is raised for the first time on appeal and is not preserved.

As discussed in Lieberman v Orr, 319 Mich.App. 68, 76-77; 900 N.W.2d 130 (2017):
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 ...

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