Circuit Court Family Division LC No. 2011-000651-DM
Before: Cameron, P.J., and Jansen and O'Connell, JJ.
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.
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.
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
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.
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.
PRESERVATION AND STANDARDS OF REVIEW
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 ...