Kirk Charles Herald v. Laurie Marie Rozek ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
KIRK CHARLES HERALD, UNPUBLISHED
September 11, 2018
Plaintiff/Counterdefendant-
Appellant,
v No. 339530
Ingham Circuit Court
LAURIE MARIE ROZEK, Family Division
LC No. 15-000985-DM
Defendant/Counterplaintiff-
Appellee.
Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order striking a parenting-time provision from
the parties’ consent judgment of divorce. We reverse.
The parties married on October 8, 2005, and they had three children during their
marriage. On January 4, 2016, the trial court entered a judgment of divorce. The judgment of
divorce documented the parties’ agreement regarding custody and parenting time. It granted
joint physical and joint legal custody to the parties. It also granted defendant slightly more
parenting time during the school year and granted the parties equal parenting time during the
children’s summer break. However, the judgment of divorce also provided that the parenting-
time schedule would be adjusted to give the parties equal parenting time beginning in September
2017.
On May 31, 2017, defendant filed a motion to amend the parties’ judgment of divorce,
claiming that the provision in the judgment of divorce providing for increased parenting time to
plaintiff beginning in September 2017 was invalid. Defendant claimed that, because this was a
change in parenting time, the trial court was required to find proper cause or a change in
circumstances before allowing the change, which is something the trial court could not have
done so far in advance of the change. Plaintiff responded that the modification was not a change
in parenting time requiring proper cause or a change of circumstances because the parties agreed
to the provision when they signed the judgment of divorce. Following a hearing, the trial court
granted defendant’s motion and ordered that the provision be stricken from the judgment of
divorce.
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On appeal, plaintiff argues that the trial court erred in striking the challenged provision
from the judgment of divorce.1 We agree.
“ ‘Orders regarding 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.’ ” Shade v Wright, 291 Mich
App 17, 20-21; 805 NW2d 1 (2010), quoting Pickering v Pickering, 268 Mich. App. 1, 5; 706
NW2d 835 (2005). This Court applies a similar standard of review to questions regarding
custody. See Phillips v Jordan, 241 Mich. App. 17, 20; 614 NW2d 183 (2000). “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.” Shade, 291 Mich. App. at 21.
A trial court has abused its discretion in a child-custody case if its “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.” Id. (quotation marks and citation omitted). A trial court has
committed clear legal error if it “err[ed] in its choice, interpretation, or application of the existing
law.” Id. (quotation marks and citation omitted).
The Child Custody Act of 1970, MCL 722.21 et seq., governs all child-custody disputes.
MCL 722.26; Harvey v Harvey, 470 Mich. 186, 189, 192; 680 NW2d 835 (2004). “If the parents
of a child agree on parenting time terms, the court shall order the parenting time terms unless the
court determines on the record by clear and convincing evidence that the parenting time terms
are not in the best interests of the child.” MCL 722.27a(2).
Before the trial court can modify a previous custody judgment or order, the moving party
must demonstrate proper cause or a change of circumstances. MCL 722.27(1)(c); Phillips, 241
Mich. App. at 24. If the modification would alter the child’s established custodial environment,
the moving party must show by clear and convincing evidence that the change is in the child’s
best interests. MCL 722.27(1)(c); Phillips, 241 Mich. App. at 25. The factors a trial court must
consider in determining whether a change in custody is in the child’s best interests are found in
MCL 722.23. Likewise, when a parenting-time modification alters the established custodial
environment, the moving party must present clear and convincing evidence that the change is in
the child’s best interests. Shade, 291 Mich. App. at 22-23. However, when a parenting-time
modification does not alter the established custodial environment, the moving party must
establish only by a preponderance of the evidence that the change is in the child’s best interests.
Id. at 23.
While a trial court must make findings under all the best-interests factors when making a
custody decision, when making a parenting-time decision, the trial court need only make
1
We reject defendant’s assertion that this Court lacks jurisdiction over plaintiff’s appeal. The
July 25, 2017, order is reasonably interpreted as an order that “revers[es]” the judgment of
divorce, hence becoming a new final order appealable as of right under MCR 7.202(6)(a)(i). At
any rate, we find it appropriate to address the appeal regardless. See Wardell v Hincka, 297
Mich. App. 127, 133 n 1; 822 NW2d 278 (2012).
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findings on the contested best-interests factors. Shade, 291 Mich. App. at 31-32. However, when
the parties have come to an agreement about custody and parenting time, “[i]mplicit in the trial
court’s acceptance of the parties’ custody and visitation arrangement is the court’s determination
that the arrangement struck by the parties is in the child’s best interest.” Koron v Melendy, 207
Mich. App. 188, 191; 523 NW2d 870 (1994). See also Harvey, 470 Mich. at 192-193 (holding that
when a trial court signs an order memorializing the parties’ agreement regarding custody, it
indicates that the trial court has “satisf[ied] itself concerning the best interests of the children”).
When gradual changes to parenting time are incorporated in the trial court’s original
custody and parenting-time order, this does not qualify as a modification or amendment of
custody or parenting time. See Riemer v Johnson, 311 Mich. App. 632, 648; 876 NW2d 279
(2015). On appeal, both parties in Riemer challenged the trial court’s order, which “gradually
adjust[ed] parenting time over the course of approximately three and one-half years and
ultimately result[ed] in equal parenting time.” Id. at 646. This Court rejected the defendant’s
reliance on MCL 722.27(1)(c) in this context, holding that the defendant’s reliance on that statute
was “misplaced” because the trial court’s order “contemplated” the gradual changes and because
the defendant “cite[d] no authority for the proposition that the full effect of the parenting time
order was required to be implemented immediately.” Id. at 648.
In this case, the judgment of divorce included a parenting-time provision that increased
plaintiff’s parenting time to equal parenting time beginning at the start of the school year in
2017. Plaintiff argues that the trial court’s decision to strike that provision constituted a change
in parenting time that should not have been made. Defendant responds that an agreement that
modifies child custody in the future is invalid because it improperly “usurps the authority of a
court,” given that the trial court cannot know in advance whether proper cause or a change of
circumstances will exist.
Here, when the trial court approved the parties’ agreement, it implicitly decided that the
agreement was in the best interests of the children. See Koron, 207 Mich. App. at 191, and
Harvey, 470 Mich. at 192-193. Because the judgment of divorce was the first custody or
parenting-time order in this case and documented the agreed-upon future parenting-time
modification, it was not a modification of a custody or parenting-time order. See Riemer, 311
Mich. App. at 648. MCL 722.27(1)(c) requires the threshold showing of proper cause or a change
of circumstances before modifying a judgment or order regarding child custody. In this case, the
prospective change was incorporated in the judgment of divorce; it was not itself an attempt to
modify a judgment or order that was in place. Instead, the trial court’s decision to strike the
provision from the judgment of divorce was itself an improper modification of parenting time.2
Defendant argues that, if this Court agrees with plaintiff’s argument, there would be “no
limit on the permissible machinations” allowing for future changes to custody or parenting-time
2
We note that defendant made no showing or even allegation of a proper cause or a change in
circumstances justifying the modification of the judgment of divorce (i.e., the striking of the
provision in question).
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orders. However, this ignores the mandate that the trial court must determine whether an
agreement is in the best interests of the child, see Harvey, 470 Mich. at 192-193, and we are,
quite simply, following the established caselaw of Riemer, 311 Mich. App. at 648.
Reversed.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Elizabeth L. Gleicher
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