Sulaica v. Rometty , 308 Mich. App. 568 ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
PAUL SULAICA, JR., FOR PUBLICATION
December 18, 2014
Plaintiff-Appellant, 9:10 a.m.
v No. 321275; 322760
Oakland Circuit Court
LESLIE ROMETTY, f/k/a LESLIE KUNKLER, LC No. 2002-672260-DC
Defendant-Appellee.
Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.
PER CURIAM.
In Docket No. 321275, plaintiff, Paul Sulaica, Jr., appeals as of right the trial court’s
order granting a motion filed by defendant, Leslie Rometty, to change the domicile of the
parties’ minor child from Michigan to Florida. Plaintiff also argues that the trial court erred in
ordering him to pay $1,000 in attorney fees in connection with his filing of a motion to extend
parenting time and for joint legal custody. In Docket No. 322760, plaintiff appeals as of right the
trial court’s order denying plaintiff’s motion to enter a parenting time order and denying
plaintiff’s request for attorney fees. We affirm in part and reverse in part.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
These appeals arise from orders concerning the domicile, custody, and parenting time of
the parties’ minor child. The parties were never married. They resided together for the first one
and one-half years of their child’s life.
In October 2002, plaintiff filed a complaint for custody, which ultimately led to a
December 9, 2003 consent judgment specifying custody, parenting time, and support. That
consent judgment granted defendant sole legal custody and both parties joint physical custody of
the child. Defendant’s residence was named the “primary residence . . . for school purposes.”
The parties were both Michigan residents at the time. The consent judgment specified weekly
parenting time for plaintiff, including alternate weekends, midweek overnights, and some
holidays. The consent judgment further provided that “neither party may permanently move the
minor child of the parties from the State of Michigan without the prior written consent and
approval of the other party or without first obtaining the approval of the Court. . . .”
On February 5, 2014, defendant filed a motion to change the child’s domicile to Florida.
Defendant emphasized that she had sole legal custody and provided the child’s primary
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residence. Defendant also argued that plaintiff had “an extensive criminal history including
felony convictions, as well as assaultive behavior toward [defendant], some of his children and
previous girlfriends.” Defendant claimed that she was the child’s primary caregiver and had
been offered more secure employment in Florida as a sonographer, which would pay her
$75,000, annually ($31,000 more than she made in her present position in Michigan). Defendant
stated that she had located suitable schooling for the child and that she would continue to
encourage a relationship between plaintiff and the child. Defendant argued that because she was
the sole legal custodian, it was unnecessary to analyze the best interests factors set forth in MCL
722.31(4).
On February 11, 2014, plaintiff filed a response to defendant’s motion, arguing that there
was an established custodial environment with both parties and that defendant had not shown
proper cause or a change in circumstances warranting a change to the established custodial
environment. On that same day, plaintiff filed a motion for joint legal custody.
On February 12, 2014, the trial court held a hearing on defendant’s motion to change
domicile. The trial court noted that there was an open investigation by Child Protective Services
(CPS) concerning conduct by defendant’s husband and stated its intent to withhold ruling on
defendant’s motion until the investigation was completed.1 The trial court asked for argument,
however, on the state of the law as it related to a party with sole legal custody seeking to change
domicile. Plaintiff argued that defendant sought to change an established custodial environment
and, therefore, that a best interests hearing was required. Plaintiff cited as support Brown v
Loveman, 260 Mich. App. 576; 680 NW2d 432 (2004). The trial court stated its inclination to rule
that defendant’s sole legal custody would allow defendant to change the child’s domicile without
such detailed inquiry.
On February 19, 2014, plaintiff filed a motion for extended parenting time and joint legal
custody. He again argued that there was an established custodial environment with both parties.
Plaintiff contended that it was in the child’s best interests to grant him joint legal custody or, at
least, extended parenting time. Defendant filed a response to plaintiff’s motion, arguing, in part,
that it was frivolous and seeking attorney fees incurred in responding.
On February 26, 2014, the trial court held a second hearing on defendant’s motion to
change domicile. The CPS investigation into defendant’s husband was complete with the
allegations unsubstantiated. The trial court stated that it had reviewed defendant’s motion to
change domicile as well as plaintiff’s motion to change custody and parenting time and closely
reviewed the case file. The trial court took testimony from defendant regarding the new job that
she intended to take in Florida and her increased salary and job stability. The trial court stated
that it found defendant’s testimony credible and ruled: “it’s appropriate in light of the fact that
[defendant] has sole legal custody for the Court to allow this move, to her permission to do that.”
The trial court also denied plaintiff’s motions regarding parenting time and joint legal custody
and referred the issue of parenting time to the Friend of the Court for analysis and a
recommendation. The trial court stated its belief that plaintiff was “playing games” in
1
The CPS report appears to have been initiated by plaintiff on February 6, 2014.
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connection with his filing of his motions and ordered plaintiff to pay defendant $1,000 in
attorney fees. The trial court denied plaintiff’s subsequent motion for reconsideration.
On April 9, 2014, the Friend of the Court issued its parenting time recommendation. It
recommended, in light of defendant’s planned move to Florida, that plaintiff be granted the
following parenting time:
1. Six weeks during the summer vacation from school, starting two weeks after
school is out for the summer.
2. Every spring break, for a period of seven days.
3. Every mid-winter break, if applicable.
4. Every other Thanksgiving break, from the day school is out until the day
before school begins. The father would have odd years and the mother would
have even years.
5. Christmas break every year, as follows: in even years, he would have the child
the day after school is out until the day before school begins. In odd years, he
would have the child from December 26 until the day before school begins. This
allows for the Christmas Eve/Christmas Day holiday to be alternated.
6. The mother would provide or pay for transportation for the summer, Christmas
and spring break visits. The father would pay for the mid winter and
Thanksgiving breaks.
7. If the father travels to Florida, he is entitled to parenting time with a one-week
notice.
On April 30, 2014, defendant filed objections to the Friend of the Court recommendation,
arguing that the parenting time provided to plaintiff was excessive. Plaintiff filed a response to
defendant’s objections and included a request for attorney fees and costs, claiming that he was
unable to afford the costs and attorney fees incurred in responding to defendant’s objections.
On May 15, 2014, plaintiff filed a motion for entry of the Friend of the Court
recommendation, with the modification that he be granted parenting time for full summers.
Plaintiff included argument that defendant was not complying with prior parenting time
requirements.
On June 6, 2014, the trial court entered a parenting time order without holding a hearing.
The trial court adopted the Friend of the Court recommendation, with modification. It ordered
that the recommendation in paragraph 5 be revised to state: “In odd years, [plaintiff] would have
the child from December 27 until the day before school begins.” The trial court struck the
recommendation in paragraph 7 regarding parenting time if plaintiff traveled to Florida. Plaintiff
filed a motion for reconsideration, which the trial court denied. The trial court also stated that it
was denying plaintiff’s request for attorney fees related to entry of the parenting time order.
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Plaintiff filed the present appeals and, on August 19, 2014, a panel of this Court entered
an order of consolidation. Sulaica v Rometty, unpublished order of the Court of Appeals, entered
August 19, 2014 (Docket Nos. 321275 and 322760).
II. JURISDICTION
As an initial matter, we address and reject defendant’s contention that this Court lacks
jurisdiction over these appeals with regard to the orders addressing custody and change of
domicile.2 Defendant argues in both appeals that the orders appealed from are not final orders
that are appealable as of right. “Whether this Court has jurisdiction to hear an appeal is an issue
that we review de novo.” Rains v Rains, 301 Mich. App. 313, 320; 836 NW2d 709 (2013)
(citation and quotation omitted). This Court “has jurisdiction of an appeal of right filed by an
aggrieved party from . . . [a] final judgment or final order of the circuit court . . . .” MCR
7.203(A)(1). In a domestic relations action, “final judgment” or “final order” means “a
postjudgment order affecting the custody of a minor[.]” MCR 7.202(6)(a)(iii). An order need
not change custody to be a final order. Indeed, this Court has held that the term “affects” as is
used in regard to child custody orders includes a broad class of orders. Wardell v Hincka, 297
Mich. App. 127, 132-133; 822 NW2d 278 (2012) (explaining that “a decision regarding the
custody of a minor is of the utmost importance regardless of whether the decision changes the
custody situation or keeps it as is.”). In Wardell, we held that an order denying a motion for a
change of custody is appealable as of right. Id. at 133. We have also held that where “a change
in domicile will substantially reduce the time a parent spends with a child, it would potentially
cause a change in the established custodial environment,” such that the denial of a motion for a
change in domicile is a final order appealable as of right. Rains, 301 Mich. App. at 323-324. See
also Thurston v Escamilla, 469 Mich. 1009; 677 NW2d 28 (2004). In this case, the trial court’s
orders affected the child’s domicile and substantially reduced the amount of time plaintiff can
spend with the child as a result of the child’s move from Michigan to Florida. Accordingly, we
find that both of the orders from which plaintiff appeals were orders “affecting the custody of a
minor” and that they are appealable as of right. See Rains, 301 Mich. App. at 324; Wardell, 297
Mich. App. at 131-132.
III. DOCKET NO. 321275
A. CHANGE OF DOMICILE
On appeal, plaintiff first argues that the child had an established custodial environment
with both parents and defendant was obligated to show proper cause or a change of
circumstances that established that the modification of the environment via the move to Florida
was in the child’s best interests. This Court agrees that the trial court focused too narrowly on
2
Defendant does not separately challenge this Court’s jurisdiction with respect to plaintiff’s
issues on appeal concerning attorney fees. The orders regarding attorney fees are final orders
appealable as of right. See MCR 7.202(6)(a)(iv) (including in the definition of “final order” “a
postjudgment order awarding or denying attorney fees and costs under MCR 2.403, 2.405, 2.625
or other law or court rule[.]”).
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whether the 100-mile rule, MCL 722.31, applied and failed to analyze the requested move in the
context of whether it constituted a change to an established custodial environment, which would
warrant closer scrutiny.
This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to
grant a motion for change of domicile. Rains, 301 Mich. App. at 324. In this context, an abuse of
discretion exists when the result 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.,
citing Brown, 260 Mich App at 600-601. In the child custody context, questions of law are
reviewed for clear legal error. A trial court commits legal error when it incorrectly chooses,
interprets or applies the law. Fletcher v Fletcher, 447 Mich. 871, 881; 526 NW2d 889 (1994);
Sturgis v Sturgis, 302 Mich. App. 706, 710; 840 NW2d 408 (2013).
The trial court decided the issue of domicile based only on defendant’s status as the party
with sole legal custody of the child. The trial court looked to the 100-mile rule, MCL 722.31,
concerning the change in a child’s legal residence. That rule provides, in pertinent part:
(1) A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as otherwise
provided in this section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location that is more than
100 miles from the child’s legal residence at the time of the commencement of the
action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection
(1) if the other parent consents to, or if the court, after complying with subsection
(4), permits, the residence change. This section does not apply if the order
governing the child’s custody grants sole legal custody to 1 of the child’s parents.
* * *
(4) Before permitting a legal residence change otherwise restricted by subsection
(1), the court shall consider each of the following factors, with the child as the
primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the quality
of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or her
time under, a court order governing parenting time with the child, and whether the
parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal
residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
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relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed against
or witnessed by the child. [MCL 722.31(1), (2), and (4).]
The trial court properly relied on subsection (2) in reasoning that – because defendant had sole
legal custody of the child – it need not analyze the factors set forth in subsection (4). Brecht v
Hendry, 297 Mich. App. 732, 743; 825 NW2d 110 (2012); Brausch v Brausch, 283 Mich. App.
339, 349-350; 770 NW2d 77 (2009); Spires v Bergman, 276 Mich. App. 432, 439-440; 741 NW2d
523 (2007). But that should not have ended the inquiry.
MCL 722.27 prohibits any change to an established custodial environment unless the
change is shown by clear and convincing evidence to be in the child’s best interests.
(1) If a child custody dispute has been submitted to the circuit court as an original
action under this act or has arisen incidentally from another action in the circuit
court or an order or judgment of the circuit court, for the best interests of the child
the court may do 1 or more of the following:
* * *
(c) Modify or amend its previous judgments or orders for proper cause shown
or because of change of circumstances until the child reaches 18 years of age and,
subject to section 5b of the support and parenting time enforcement act, 1982 PA
295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The
court shall not modify or amend its previous judgments or orders or issue a new
order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of
the child.[3] The custodial environment of a child is established if over an
3
The best interests factors are set forth in MCL 722.23, which states:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child
with food, clothing, medical care or other remedial care recognized and permitted
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appreciable time the child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort. The age of the
child, the physical environment, and the inclination of the custodian and the child
as to permanency of the relationship shall also be considered. If a motion for
change of custody is filed during the time a parent is in active military duty, the
court shall not enter an order modifying or amending a previous judgment or
order, or issue a new order, that changes the child’s placement that existed on the
date the parent was called to active military duty, except the court may enter a
temporary custody order if there is clear and convincing evidence that it is in the
best interest of the child. Upon a parent’s return from active military duty, the
court shall reinstate the custody order in effect immediately preceding that period
of active military duty. If a motion for change of custody is filed after a parent
returns from active military duty, the court shall not consider a parent’s absence
due to that military duty in a best interest of the child determination. [MCL
722.27(1)(c) (emphasis added).]
Therefore, the question is whether changing the child’s domicile to Florida constituted a
change in an established custodial environment warranting the scrutiny required under MCL
722.27(1)(c). The trial court should have analyzed this question. It is true that Brecht, Brausch,
and Spires, held that, when the party seeking to change domicile has sole legal custody, the trial
court has discretion to decide the change in domicile without considering the factors set forth in
MCL 722.31(4). Brecht, 297 Mich. App. at 743; Brausch, 283 Mich. App. at 352-353; Spires, 276
Mich. App. at 438-439. A plain reading of MCL 722.31(2) requires that conclusion. But none of
those cases involved parties with joint physical custody. See Brecht, 297 Mich. App. at 734,
Brausch, 283 Mich. App. at 342-343, and Spires, 276 Mich. App. at 434 (in each, the party who
sought to change domicile had sole legal and physical custody). The absence of joint physical
custody is an important distinction, which the panel in Spires recognized when it cited to Brown:
under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be
of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage
a close and continuing parent-child relationship between the child and the other
parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against
or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
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Only when the parents share joint physical custody and the proposed change of
domicile would also constitute a change in the child’s established custodial
environment is it also necessary to evaluate whether the change of domicile would
be in the child’s best interest. [Brown, 260 Mich. App. at 598 n 7.] This concern is
not present in the case at bar because plaintiff had sole legal and physical custody.
[Spires, 276 Mich. App. at 437 n 1.]
In Brown, 260 Mich. App. at 578-579, the parties shared physical custody of their minor
daughter. The defendant sought court approval to remove the child from Michigan. Neither
party had sole legal custody of the child and, therefore, the trial court applied the MCL 722.31(4)
factors and granted the defendant permission to move the child out of state. Id. at 590-591. On
appeal, the Brown panel considered whether the trial court should have more closely scrutinized
the move in the context of its affect on the child’s established custodial environment. The panel
reasoned that MCL 722.31 and MCL 722.27 have common purposes and should be applied in
tandem. Id. at 593. The Brown panel held that a trial court must make the inquiry required
under MCL 722.27 where a change in domicile effectively changes an established custodial
environment of a minor, explaining:
It would be illogical and against the intent of the Legislature to apply MCL
722.31 without considering the best interests of the minor child, if the change in
legal residence would effectively change the established custodial environment of
the minor. Ansell [v Dep’t of Commerce (On Remand), 222 Mich. App. 347, 355;
564 NW2d 519 (1997)]. Otherwise, where parents have joint physical custody
and one party seeks to change the legal residence of the child (which would
effectively change the established custodial environment), the party would only
be subject to the lesser preponderance of the evidence burden required by MCL
722.31. The Legislature could not have intended MCL 722.27 and MCL 722.31
to be applied completely independently of each other where the result would
allow a party seeking to change domicile (and in effect change the established
custodial environment) to circumvent its burden of proof by clear and convincing
evidence that the change is in the child’s best interest.[4] [Id. at 594-595.]
The panel in Brown ultimately remanded the case to the trial court to conduct an evidentiary
hearing in order to determine whether the defendant could prove by clear and convincing
evidence that the proposed change of domicile was in the child’s best interests. Id. at 598.
Because the parties to the present case had joint physical custody, the trial court should
have engaged in the additional analysis of whether the proposed change in domicile had the
4
The Brown court deemed “illogical” the idea that a parent could circumvent the requirements of
MCL 722.27(1)(c) and effectively change a child’s established custodial environment by simply
satisfying the lesser preponderance of the evidence burden necessary to change domicile under
MCL 722.31(4). It would be equally illogical, if not more so, to let a party with sole legal
custody skip that step too under MCL 722.31(2) and change custody with no proofs whatsoever;
it would turn a person’s sole legal custody status into a trump card.
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effect of changing an established custodial environment. See id. See also Gagnon v Glowacki,
295 Mich. App. 557, 570; 815 NW2d 557 (2012) (emphasis added) (“After granting a change of
domicile, the trial court must determine whether there will be a change in the established
custodial environment and, if so, determine whether the relocating parent can prove, by clear and
convincing evidence, that the change is in the child’s best interest.”); Rittershaus v Rittershaus,
273 Mich. App. 462, 470; 730 NW2d 262 (2007) (holding that the trial court erred in failing to
determine whether granting the plaintiff’s motion for a change of domicile would have changed
the child’s established custodial environment).5 The trial court’s failure to properly apply the
law constituted clear legal error. Fletcher, 447 Mich. at 881.
For several years leading up to defendant’s motion to change domicile, plaintiff had
significant parenting time, including weekly overnights and overnights on alternating weekends,
along with some holidays. Plaintiff argued before the trial court that there was an established
custodial environment with both parties and that Brown required the trial court to engage in a
factual analysis to determine the effect of the change of domicile on that environment. The trial
court, however, allowed little factual development. It briefly questioned defendant before
granting the motion to change domicile, but it did not examine whether an established custodial
environment existed and, if so, with whom.
Whether an established custodial environment exists is a question of fact. Brausch, 283
Mich. App. at 356 n 7. A custodial environment is established if:
over an appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
considered. [MCL 722.27(1)(c).]
An established custodial environment is one of significant duration, both physical and
psychological, in which the relationship between the custodian and child is marked by security,
stability and permanence. Berger v Berger, 277 Mich. App. 700, 706; 747 NW2d 336 (2008).
“[A] trial court’s clear legal error would generally require remand for further
consideration under the proper legal framework” unless the error is harmless. Rains, 301 Mich
App at 331. See also Kubicki v Sharpe, __ Mich App __; __ NW2d __ (Docket No. 317614,
issued August 28, 2014), slip op at 9; Brausch, 283 Mich. App. at 356 n 7 (“When a trial court
fails to make a finding regarding the existence of a custodial environment, this Court will
5
We note that neither Gagnon nor Rittershaus addressed the precise issue in this case, i.e.,
whether the trial court must consider the child’s established custodial environment in a situation
where a parent has sole legal custody and therefore is not required to satisfy the factors set forth
in MCL 722.31(4); however, given the analysis of MCL 722.31 and MCL 722.27 set forth
above, and that the “touchstone” of the trial court’s analysis in custody decisions is to be the
child’s best interest, see Kubicki v Sharpe, __ Mich App __; __ NW2d __ (Docket No. 317614,
issued August 28, 2014), slip op at 10, we find that the cases support our analysis.
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generally remand for such a finding unless sufficient information exists in the record for this
Court to make a de novo determination of this issue.”). Based on the record before us, we are
unable to conclude that the error was harmless and we remand with instruction that the trial court
examine the question of whether an established custodial environment existed. We find that the
four-step process outlined in Rains, 301 Mich. App. at 325, is applicable and instructive in this
instance, save for the first step which deals with the factors set forth in MCL 722.31(4), as
defendant in this case was not required to satisfy those factors. That process provides:
First, a trial court must determine whether the moving party has established by a
preponderance of the evidence that the factors enumerated in MCL 722.31(4), the
so-called D’Onofrio[6] factors, support a motion for a change of domicile.
Second, if the factors support a change in domicile, then the trial court must then
determine whether an established custodial environment exists. Third, if an
established custodial environment exists, the trial court must then determine
whether the change of domicile would modify or alter that established custodial
environment. Finally, if, and only if, the trial court finds that a change of
domicile would modify or alter the child's established custodial environment must
the trial court determine whether the change in domicile would be in the child's
best interests by considering whether the best-interest factors in MCL 722.23 have
been established by clear and convincing evidence. [Id.]
Here, insofar as the trial court finds an established custodial environment with plaintiff,
the trial court should further consider whether defendant’s move to Florida represented a change
to that environment. In the event that the move is found to constitute a change to an established
custodial environment, MCL 722.27(1)(c) would compel defendant to demonstrate clear and
convincing evidence that the move was in the child’s best interests with careful analysis of the
factors set forth in MCL 722.23.
B. TRIAL COURT’S AWARD OF ATTORNEY FEES
Plaintiff next argues that the trial court erred in ordering him to pay $1,000 in attorney
fees based on his filing of his motion for extended parenting time and joint custody. We agree.7
6
D’Onofrio v D’Onofrio, 144 N J Super 200, 206-207; 365 A 2d 27 (1976).
7
The trial court did not expressly state the authority pursuant to which it granted attorney fees.
Nevertheless, the trial court indicated that it found plaintiff’s motions to extend parenting time
and for joint custody were meant as a “roadblock” to defendant’s motion to change domicile, that
plaintiff’s motions were “baseless,” and that plaintiff was “playing games.” Defendant requested
fees, contending that plaintiff’s motions were “frivolous.” Given this context, it is apparent that
the trial court granted attorney fees because it found that plaintiff’s motions were frivolous or
intended to delay the proceedings. See MCL 600.2591, MCR 2.114(E), and MCR 2.625(A)(2)
(authorizing an award of attorney fees for frivolous actions or pleadings or for actions or
pleadings filed for the purpose of unnecessary delay). As discussed infra, this determination was
premised on the trial court’s erroneous interpretation of the law.
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The findings of fact underlying an award of attorney fees are reviewed for clear error,
Brown v Home Owners Ins Co, 298 Mich. App. 678, 690; 828 NW2d 400 (2012), while
underlying questions of law are reviewed de novo, Loutts v Loutts, 298 Mich. App. 21, 24; 826
NW2d 152 (2012), and the decision whether to award attorney fees and the determination of the
reasonableness of the fees are within the trial court’s discretion and will be reviewed on appeal
for an abuse of discretion, Smith v Khouri, 481 Mich. 519, 526; 751 NW2d 472 (2008); In re
Temple Marital Trust, 278 Mich. App. 122, 128; 748 NW2d 265 (2008).
The trial court appeared to conclude that plaintiff’s motions to change parenting time and
for joint legal custody were frivolous and, therefore, awarded fees. As discussed, the trial court
erred in failing to analyze the existence of an established custodial environment and, insofar as
the change in domicile affected such an environment, whether the move was in the child’s best
interests. Brown, 260 Mich. App. at 598. That is part of the relief that plaintiff was seeking
through his motion for extended parenting time and joint legal custody. The trial court’s fee
order was the result of its erroneous interpretation of the law controlling the domicile issue and
is, therefore, reversed. See Loutts, 298 Mich. App. at 24.
In reaching this conclusion, we reject defendant’s contention that plaintiff waived any
potential objection to the trial court’s award of attorney fees by approving “as to content and
form” the trial court’s order granting fees. Defendant contends that plaintiff’s approval as to
“content and form” was the equivalent of the parties entering into a consent decree that cannot be
challenged on appeal. Our Supreme Court has recognized that, although previous case law held
that approving an order as to “form and content,” could be viewed as waiver of the ability to
challenge the order, the “better rule,” which the Court adopted, cautioned against finding waiver
simply where an order was approved as to form and content. Ahrenberg Mech Contracting, Inc v
Howlett, 451 Mich. 74, 77; 545 NW2d 4 (1996). Rather than amounting to waiver, the Court
explained that an attorney’s approval of an order as to “form and substance” or “form and
content” should be, under certain circumstances, viewed “but only as recognition that the
proposed decree was legally formulated, and contained in substance the decision as orally
announced by the court.” Id. at 77 (citation and quotation omitted). In Ahrenberg, there was no
evidence of negotiations indicating that the parties were looking to compromise or otherwise
surrender rights. Id. at 78. In addition, the fact that the defendant vigorously challenged the trial
court’s ruling—both before and after entry of the order—demonstrated that the approval of the
order as to “form and content” was not a waiver, but rather an acknowledgement that the
prepared order contained the substance of the trial court’s decision. Id. at 78.
Similarly, in this case, there is no indication that the parties stipulated to an outcome
regarding the attorney fees. Plaintiff’s counsel’s comments at oral argument show that she
challenged the trial court’s decision to award fees; plaintiff subsequently moved for rehearing
and continued to challenge those fees on appeal. There is nothing to suggest that plaintiff’s
counsel’s approval of the order at issue as to “content and form” illustrated counsel’s intent to
enter into a consent order; rather, as in Ahrenberg, it merely appears that plaintiff’s counsel
acknowledged that the prepared order contained the substance of the trial court’s oral ruling. See
id.
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IV. DOCKET NO. 322760
A. PARENTING TIME
Plaintiff next argues that the trial court erred in denying his request to extend parenting
time without allowing factual development concerning changes to the established custodial
environment. As discussed, the trial court erred in failing to engage in a more detailed analysis
of whether an established custodial environment existed and whether the defendant’s planned
move to Florida constituted a change to that environment that was in the child’s best interests.
Brown, 260 Mich. App. at 598. The trial court’s decision to grant defendant’s motion to change
domicile necessarily affected its ruling on plaintiff’s later motion to extend parenting time
because the trial court analyzed parenting time in the context of what was appropriate given
defendant’s move to Florida. Because the determination of proper parenting time depends on the
outcome of the trial court’s resolution of the custodial environment and best interests issues on
remand, the June 6, 2014 parenting time order is also reversed.
B. PLAINTIFF’S REQUEST FOR ATTORNEY FEES
Finally, plaintiff argues that the trial court erred in denying his request for attorney fees.
He contends that, pursuant to MCR 3.206(C), he was entitled to his attorney fees incurred in
responding to defendant’s objections to the FOC’s recommendations because he was unable to
afford such fees. We review for an abuse of discretion the trial court’s denial of plaintiff’s
request for fees. Ewald v Ewald, 292 Mich. App. 706, 724; 810 NW2d 396 (2011). “The trial
court abuses its discretion when its decision results in an outcome that falls outside the range of
reasonable and principled outcomes.” Id. at 725.
Pursuant to MCR 3.206(C):
(1) A party may, at any time, request that the court order the other party to pay all
or part of the attorney fees and expenses related to the action or a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts sufficient to
show that
(a) the party is unable to bear the expense of the action, and that the other
party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party
refused to comply with a previous court order, despite having the ability to
comply.
“Attorney fees are not awarded as a matter of right but only when necessary to enable a
party to carry on or defend the litigation.” Spooner v Spooner, 175 Mich. App. 169, 174; 437
NW2d 346 (1989). “The party requesting the attorney fees has the burden of showing facts
sufficient to justify the award.” Woodington v Shokoohi, 288 Mich. App. 352, 370; 792 NW2d 63
(2010). This burden includes the burden to provide evidence of the attorney fees that were
incurred. McIntosh v McIntosh, 282 Mich. App. 471, 483; 768 NW2d 325 (2009). (“The party
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requesting attorney fees must show that the attorney fees were incurred and that they were
reasonable.”). A party cannot rely on unsubstantiated assertions when requesting attorney fees
under MCR 3.206(C). Smith v Smith, 278 Mich. App. 198, 208; 748 NW2d 258 (2008).
On the record presented, we find that the trial court’s decision was not outside the range
of reasonable and principled outcomes. See Ewald, 292 Mich. App. at 725. Despite requesting
attorney fees, plaintiff alleged, only generally, that he was unable to afford attorney fees. As
such, plaintiff “has not alleged sufficient facts to demonstrate that plaintiff would be unable to
bear the expense of this action without aid.” Spooner, 175 Mich. App. at 174. Concerning
plaintiff’s contention that the trial court was required to hold a hearing, we find his claim to be
meritless. See MCR 2.119(E)(3); American Transmission, Inc v Channel 7 of Detroit, Inc, 239
Mich. App. 695, 709; 609 NW2d 607 (2000).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Jane M. Beckering
/s/ Mark T. Boonstra
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