Douglas Scott Dubin v. Contessa Lynn Fincher ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
DOUGLAS SCOTT DUBIN, UNPUBLISHED
January 30, 2018
Plaintiff-Appellee,
v No. 339175
Washtenaw Circuit Court
CONTESSA LYNN FINCHER, LC No. 12-000833-DM
Defendant-Appellant.
Before: MURPHY, P.J., and SAWYER and BECKERING, JJ.
PER CURIAM.
In this domestic relations action, defendant, Contessa Lynn Fincher, claims an appeal by
right from the trial court’s order denying her motion for expanded parenting time and a
reunification plan. For the reasons explained below, we conclude that defendant’s appeal is not
properly before this Court as an appeal of right because there is no sense in which the trial
court’s order “affect[s] the custody of a minor.” Therefore, the order is not a final order for
purposes of MCR 7.202(6)(a)(iii) and MCR 7.203(A)(1). Accordingly, we dismiss defendant’s
appeal.
This appeal has taken a convoluted path to our docket. On July 11, 2017, defendant filed
both an application for leave to appeal (Docket No. 339172) and this claim of appeal of right
(Docket No. 339175) from the same order. Accompanying the filings were apparently identical
briefs that raised the same issues. The Court denied defendant’s application for leave to appeal
“for lack of merit in the grounds presented.” Douglas Scott Dubin v Contessa Lynn Fincher,
unpublished order of the Court of Appeals, entered October 25, 2017 (Docket No. 339172).
Plaintiff, Douglas Scott Dubin, argued in a brief filed in Docket No. 339175 that defendant did
not have an appeal of right, and this Court did not have jurisdiction, because the order defendant
appealed from was not a final order in a domestic relations case as defined in MCR
702(6)(a)(iii). On December 19, 2017, we ordered defendant to file a supplemental brief
addressing this jurisdictional issue. Dubin v Fincher, unpublished order of the Court of Appeals
entered December 19, 2017 (Docket No. 339175). We also allowed plaintiff to file a
supplemental brief. Id. After reading both parties’ supplemental briefs, and defendant’s reply to
plaintiff’s supplemental brief, we conclude that the order appealed from does not affect custody,
is not a final order appealable by right, and, therefore, this Court does not have jurisdiction
pursuant to MCR 7.203(A)(1).
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The interpretation of a court rule and whether this Court has jurisdiction over an appeal
are questions of law subject to review de novo. Id. at 58. The question of jurisdiction in this
case rests on interpretation of MCR 7.202(6)(a)(iii) and MCR 7.203. Interpretation of a court
rule follows the same general rules of statutory interpretation; therefore:
The goal of court rule interpretation is to give effect to the intent of the drafter,
the Michigan Supreme Court. The Court must give language that is clear and
unambiguous its plain meaning and enforce it as written. Each word, unless
defined, is to be given its plain and ordinary meaning, and the Court may consult
a dictionary to determine that meaning. [Varran v Granneman (On Remand), 312
Mich. App. 591, 599; 880 NW2d 242 (2015) (citations omitted).]
The relevant portion of MCR 7.203(A)(1) provides for this Court’s exercise of
jurisdiction over an appeal of right filed from “[a] final judgment or final order of the trial court
or court of claims, as defined in MCR 7.202(6).”1 A “final judgment” or “final order” in a
domestic relations matter is “a postjudgment order affecting the custody of a minor.” MCR
7.202(6)(a)(iii). Michigan recognizes physical custody and legal custody. Madson v Jaso, 317
Mich. App. 52, 64; 893 NW2d 132 (2016). “Physical custody pertains to where the child shall
physically ‘reside,’ whereas legal custody is understood to mean decision-making authority as to
important decisions affecting the child's welfare.” Varran, 312 Mich. App. at 604 (quotation
marks and citation omitted). With regard to parenting time, “[w]hen a motion addresses the
amount of time a parent spends with a child such that it would potentially cause a change in the
established custodial environment (ECE),2 an order regarding that motion is a final order under
MCR 7.202(6)(a)(iii).” Id. at 603-604.
Although the trial court did not address the issue, the record supports a determination that
the child’s established custodial environment is with plaintiff, who has sole legal and physical
custody. Defendant has one hour of supervised parenting time every 14 days. The order
appealed from denied defendant’s request for expanded parenting time and a “reunification
plan”; it did not change the status quo nor is there any evidence indicating that the modification
defendant requested in her motion had the potential to change the ECE. Because the order in no
way affects the physical or legal custody of the minor, or changes the ECE, it is not a “final
order” pursuant to MCR 7.202(6)(a)(iii).
In her supplemental brief, defendant argues that the nature and scope of the trial court’s
order affects custody because, by denying defendant’s request for an evidentiary hearing, the
order diminishes defendant’s exercise of her constitutional right to the care, custody, and control
of her child without affording her procedural due process. Defendant errs by adopting a legal
paradigm inapplicable to the facts of this case. Defendant points to a number of decisions from
1
There are two exceptions to this provision, neither of which applies here.
2
An ECE exists where, over an appreciable time, “the child naturally looks to the custodian in
that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL
722.27(1)(c).
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the United States Supreme Court that address issues significantly distinguishable from the one at
hand to assert that the High Court has used “custody” to refer to the constitutional right of a fit
parent to the care, custody, and control of her child.3 By equating “custody” to the entire
constellation of constitutionally protected parental rights, defendant is urging this Court to
consider her situation parallel to that of a fit parent whose parental rights have been
unconstitutionally restricted. However, nothing in the trial court’s order changed defendant’s
constitutional rights as a parent. In fact, the order changed nothing at all; rather, it signified that
defendant had not made the threshold showing necessary to revisit the terms of the court’s
current parenting-time order.
Defendant contends that statutes governing the modification of parenting-time orders,
i.e., MCL 722.27a and MCL 722.27, establish an insurmountable obstacle to the exercise of her
parental rights, and asserts that “any obstacle to a fair hearing on the issue of custody ‘affects’
custody—whether that is a court rule, a statute, or a case.” MCL 722.27a and MCL 722.27
permit a court to modify a previous judgment affecting parenting time where the movant first
shows a change in circumstances or proper cause and, then, that modification is in the best
interests of the child. Defendant contends that this legal framework is an obstacle to the exercise
of her parental rights because the only way she can show a “change in circumstances” is to show
that she is cured of her bipolar disorder, symptoms of which have affected the frequency and
duration of the parenting time granted by the trial court. Defendant’s assertion regarding what is
required to proceed to a hearing on whether modification of the current parenting time order is in
the best interests of the child reflects neither a proper understanding of the law nor a fair
representation of the requirements set forth by the trial court in this case.4 The purpose of
requiring a change in circumstances or proper cause before modifying a custody or parenting-
time order is, among other things, “to minimize unwarranted and disruptive changes” of such
orders. Shade v Wright, 291 Mich. App. 17, 28; 805 NW2d 1 (2010), quoting Vodvarka v
Grasmeyer, 259 Mich. App. 499, 509; 675 NW2d 847 (2003).
To summarize, the trial court’s order denying defendant’s motion for expanded parenting
time and a reunification plan is not an order that affects physical or legal custody; therefore, it
3
Defendant relies on the following for her definition of custody: Stanley v Illinois, 405 U.S. 645;
92 S. Ct. 1208; 31 L. Ed. 2d 551 (1972) (challenging declaration of an unwed father’s children as
state dependents after the death of their natural mother and without a hearing on the father’s
parental fitness or proof of neglect); Smith v Org of Foster Families, 431 U.S. 816; 97 S. Ct. 2094;
L Ed 2d 14 (1977) (finding sufficient the procedures for removing foster children from foster
families); Michael H v Gerald D, 491 U.S. 110; 109 S. Ct. 2333; 105 L. Ed. 2d 91 (1989)
(addressing the relative rights of a putative father and the presumed father under California law).
4
The trial court is not required to conduct an evidentiary hearing on change of circumstances or
proper cause. See Vodvarka v Grasmeyer, 259 Mich. App. 499, 512; 675 NW2d 847 (2003). In
light of the trial court’s familiarity with this matter and given the absence of relevant
documentary evidence attached to defendant’s motion, we cannot say that the trial court abused
its discretion by denying her request for an additional hearing to provide evidence that she could
have provided with her motion.
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does not “affect custody” for purposes of MCR 7.202(6)(a)(iii). Accordingly, defendant does not
have an appeal of right over which the Court could exercise jurisdiction pursuant to MCR
7.203(A)(1), and the Court has already denied for lack of merit her application for leave to
appeal.
Dismissed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Jane M. Beckering
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