Sheila Starr Fante v. John Vincent Nova ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
SHEILA STARR FANTE, UNPUBLISHED
June 29, 2017
Plaintiff-Appellee,
v Nos. 334735; 336085
Macomb Circuit Court
Family Division
JOHN VINCENT NOVA, LC No. 2011-000078-DC
Defendant-Appellant.
Before: FORT HOOD, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.
PER CURIAM.
In this consolidated appeal, defendant appeals, partly by right and partly by leave granted,
from orders of the trial court modifying custody of the parties’ children to “return” sole physical
custody to plaintiff after the children had spent more than a year in defendant’s sole care,
dismissing defendant’s motion to modify custody, and denying defendant’s renewed motion to
modify custody and parenting time. We vacate and remand for further proceedings.
The parties’ original custody arrangement, pursuant to a 2011 consent judgment, granted
the parties joint legal custody and plaintiff sole physical custody of the children. On March 4,
2015, and defendant filed a motion to modify custody after plaintiff was charged with
misdemeanor child abuse. Defendant subsequently filed an ex parte motion, which the trial court
granted, seeking an emergency modification to the custody arrangement prior to an evidentiary
hearing. After the evidentiary hearing, the referee ordered that the children would remain placed
with defendant, emphasizing that it was “placement” rather than a change in custody, “until
further order of the court.” The trial court affirmed the referee’s order, and the arrangement
remained practically unchanged in all relevant respects until the criminal charges were resolved
by a directed verdict in plaintiff’s favor.
The trial court then set an evidentiary hearing for June 9, 2016, but adjourned the hearing
after defendant’s attorney withdrew; the trial court nevertheless entered an order granting
plaintiff “temporary physical custody of both minor children” pending a June 29, 2016
evidentiary hearing on defendant’s 2015 motion. The trial court ordered defendant to represent
himself if he could not obtain substitute counsel. Defendant did not appear at all on June 29,
2016, and the trial court dismissed defendant’s motion to modify custody as a consequence. It
also granted plaintiff’s request to make defendant’s parenting time supervised. The trial court
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subsequently denied defendant’s motion seeking relief from the June 9 and June 29, 2016, orders
because defendant had not appeared.
We note initially that the trial court’s order appears to have been motivated in part by its
frustration with defendant. We appreciate that the trial courts are under immense external
pressure to conform to somewhat arbitrary timetables and to manage their dockets to optimize
for rapidity rather than justice. Nor do we believe that parties should not face consequences for
their conduct. However, the trial court’s admonition to defendant that the judge was “the guy
paying for it” when defendant expressed regret for having had a relationship with plaintiff goes
entirely too far. A sitting trial court judge is in absolutely no way “paying” for anything—quite
the opposite, judges earn a salary for the precise purpose of resolving legal problems parties
bring to them, whereas parties are frequently paying what is to them vast sums of money they
often do not have and significantly inconveniencing themselves for the privilege of attempting to
navigate a seemingly Kafkaesque procedural and bureaucratic labyrinth because they have little
choice. Indeed, this case illustrates in many ways how dysfunctional the legal framework
surrounding child custody issues is from the standpoint of parents who, for whatever reason, are
unable to work out a compromise with another parent. A trial judge unable to contain their
impatience, unable to appreciate the perspective of the people before the court, or unable to
refrain from making the proceedings about themself instead of the parties, is perhaps in the
wrong line of work.
In any event, although a trial court has the discretion to dismiss an action or claim with
prejudice when a party fails to appear at a duly scheduled hearing, MCR 2.504(B)(1); Zerillo v
Dyksterhouse, 191 Mich. App. 228, 230; 477 NW2d 117 (1991), it is “a drastic step that should be
taken cautiously,” Brenner v Kolk, 226 Mich. App. 149, 163; 573 NW2d 65 (1997). As such, a
trial court is required to “carefully evaluate all available options on the record and include that
dismissal is just and proper. Bloemendaal v Town & Country Sports Center, Inc, 255 Mich. App.
207, 214; 659 NW2d 684 (2002). A trial court’s dismissal of a case without evaluating on the
record other available options constitutes an abuse of discretion. Vicencio v Ramirez, 211 Mich
App 501, 507; 536 NW2d 280 (1995). In this case, the trial court failed to address the propriety
of dismissal or articulate an analysis of the factors typically involved in a decision to dismiss.
See id. (summarizing some of the factors this Court directs a trial court to consider before
imposing the sanction of dismissal). The trial court here dismissed a motion, not an entire case,
and defendant has not challenged that dismissal on these grounds. Nevertheless, the trial court’s
disposition of the matter was, under the circumstances, premature despite defendant’s failure to
appear.
The central problem in this matter is a common and, in the absence of some action from
our Supreme Court or the Legislature, a somewhat intractable one, especially considering the
time pressures involved. Courts clearly have the power, as they should, to issue orders, even on
an ex-parte basis, removing children from unsafe environments and placing them in a safe
environment. However, the simple fact is that calling it “placement” or “temporary” or
“emergency” or any similar euphemisms does not change the true nature of such an order: if the
children involved are in an established custodial environment, removing the children from that
environment effectuates a change in custody. See Shade v Wright, 291 Mich. App. 17, 27; 805
NW2d 1 (2010). By law, any modification of custody is subject to the Child Custody Act and
requires independent consideration by the court of the best-interest factors. MCL 722.27; Rivette
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v Rose-Molina, 278 Mich. App. 327, 332-333; 750 NW2d 603 (2008); Vodvarka v Grasmeyer,
259 Mich. App. 499, 508-509; 675 NW2d 847 (2003). The Child Custody Act also governs
parenting time changes. Demski v Petlick, 309 Mich. App. 404, 440; 873 NW2d 596 (2015). The
trial court cannot sidestep the requirements of the Child Custody Act by proclaiming a change to
be “temporary.” See Mann v Mann, 190 Mich. App. 526, 529-530; 476 NW2d 439 (1991)
(holding that a trial court cannot “do by a postjudgment interim order temporarily changing
custody that which it cannot do by a final order changing custody”).
Likewise, by the time of the orders being appealed, the children had been in defendant’s
care for considerable time, raising a serious possibility that the children had an established
custodial environment with defendant. The propriety of that environment coming about is
irrelevant: “[i]t makes no difference whether [the established custodial] environment was
created by a court order, without a court order, in violation of a court order, or by a court order
that was subsequently reversed.” Hayes v Hayes, 209 Mich. App. 385, 388; 532 NW2d 190
(1995). Before the trial court may change an established custodial environment, it must first find
“proper cause or a change in circumstances sufficient to revisit an existing custody order,” and
then determine whether an established custodial environment actually exists. Pierron v Pierron,
282 Mich. App. 222, 244; 765 NW2d 345 (2009). If an established custodial environment does
exist, the trial court must then determine whether clear and convincing evidence shows the
change to be in the best interests of the child. Id. at 244-245. A party’s failure to appear does
not in any way constitute evidence of either the existence or nonexistence of an established
custodial environment, nor does it constitute evidence bearing on the best interests of the child.
Clearly, it may be cause for imposing sanctions on the party, it is not a basis for altering a child’s
custody. A trial court may limit its analysis to explicitly contested issues only where a change in
parenting time does not alter the established custodial environment. Shade v Wright, 291 Mich
App 17, 26-27, 31-32; 805 NW2d 1 (2010).
That being said, we emphasize that minor tinkering with parenting time does not
necessarily change an established custodial environment. Lieberman v Orr, __ Mich App __, __;
__ NW2d __ (2017) (Docket No. 333816), slip op at p 12. We think it obvious that removing a
child from a situation deemed immediately hazardous for a few days until the situation is
resolved or a proper hearing can be conducted likewise does not immediately change an
established custodial environment. Indeed, the trial courts must have leeway to do so.
Removing a child for an indefinite time, however, equally obviously does implicate the Child
Custody Act. Likewise, once a child is in a new environment for a significant length of time, the
trial court must determine whether a new established custodial environment exists and may not
simply “revert” the child back, even if the initial removal was intended to be temporary.
Although the trial court’s implication that it was the victim was inappropriate, we do not
mean to suggest that the trial court should not have sanctioned defendant for his failure to
appear. Furthermore, we do not express any opinion, and none should be implied, whether
proper cause or change of circumstances did in fact exist at any relevant time, nor do we render
or imply any opinion as to the children’s best interests. The outcome may well have been
proper. However, if so, it was by accident: the trial court grossly abused its discretion by
entering an order affecting the custody of the children without engaging in the analyses required
by the Child Custody Act. We note that the trial court’s order requiring defendant to have
supervised parenting time was legally erroneous and an abuse of discretion for the same reasons:
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the trial court simply failed to acknowledge and comply with the rules and procedures governing
custody and parenting time disputes. See Demski, 309 Mich. App. at 440. Consequently, we must
vacate the trial court’s orders and remand for a new child custody hearing. See Rittershaus v
Rittershaus, 273 Mich. App. 462, 475; 730 NW2d 262 (2007). The remaining issues on appeal
are therefore moot.
The trial court’s orders are vacated, and we remand the matter to the trial court to hold a
new hearing on defendant’s 2015 motion to modify custody or to allow defendant to file a new
motion to modify the custody and parenting time arrangement in the parties’ 2011 consent
judgment. Plaintiff may also file a renewed motion for defendant’s parenting time to be
supervised. On remand, the trial court should take into account up-to-date information pursuant
to Fletcher v Fletcher, 447 Mich. 871, 889; 526 NW2d 889 (1994). We do not retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Amy Ronayne Krause
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