Shannon Elaine Wallace v. Shane Monday Colwell ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SHANNON ELAINE WALLACE, formerly known UNPUBLISHED
as SHANNON ELAINE COLWELL, October 13, 2022
Plaintiff-Appellant,
v No. 360255
Oakland Circuit Court
SHANE MONDAY COLWELL, Family Division
LC No. 2016-844766-DM
Defendant-Appellee.
Before: SWARTZLE, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the lower court’s order declining to modify its previous custody
ruling, modifying the parties’ parenting time, and denying plaintiff’s request to change the
children’s schools. Finding no error requiring reversal, we affirm.
I. BACKGROUND
At the time of the parties’ divorce in December 2016, they agreed to joint legal and physical
custody of their two children, MC age 14 and AC age 12, with an unspecified parenting-time
schedule that allowed the children equal time with each parent. The most recent custody order
entered by consent in June 2019 established parenting time for defendant every other weekend and
overnight on Thursdays on the weeks without weekend parenting time. The consent order also
specified an equally divided holiday parenting-time schedule and provided each parent with two
one-week blocks of uninterrupted parenting time each summer.
In January 2021, the children’s guardian ad litem (GAL) issued a report and
recommendation advising the trial court that defendant had uncovered a plan by plaintiff to move
with the children from Rochester to New Baltimore where her fiancé lived which would result in
a commute of approximately one hour each way between plaintiff’s new residence and the
children’s schools in Rochester. The GAL recommended that the children remain in Rochester
schools, that the parties return to an equal parenting-time schedule while plaintiff remained in
Rochester, and that plaintiff’s parenting time be reduced to alternating weekends during the school
year in the event that she moved.
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Plaintiff relocated with the children to her fiancé’s home in mid-March 2021. During May
2021, she moved to transfer the children from Rochester schools to Anchor Bay schools in New
Baltimore and to alter the parenting-time schedule in whatever manner necessary to implement
that change. Defendant responded by moving to change custody and parenting time, arguing that
plaintiff’s unilateral decision to move the children an hour away constituted proper cause and a
substantial change of circumstances. The trial court agreed that the long morning commute on
school days satisfied the threshold burden for reconsidering custody. Plaintiff and her fiancé
married in July 2021.
Following an evidentiary hearing, the court opined that an established custodial
environment existed with both parents, such that clear and convincing evidence had to be presented
in support of a custody modification. Concerning the statutory best-interest factors, MCL 722.23,
the trial court found that factors (a) (love, affection, and emotional ties), (g) (mental and physical
health), and (k) (domestic violence), equally credited both parents; while factor (j) (willingness
and ability to facilitate child’s relationship with other parent) did not favor either parent. The court
interviewed each child separately in camera and took their statements into consideration under
factor (i) (child’s reasonable preference), but did not consider any other unenumerated
considerations under factor (l) (any other factor). The remaining best-interest factors favored
defendant.
The court provided a lengthy and detailed discussion of the best-interest factors. The court
repeatedly addressed the repercussions of plaintiff’s move. The court cited evidence regarding
plaintiff’s timeline of disclosing the move and possible school change, which involved revealing
information to the children well before defendant. The court expressed concern regarding
plaintiff’s failure to appreciate how her actions left the children in a position of having to keep
secrets from defendant, caused them uncertainty about their future schooling, and made MC, in
particular, feel guilty for telling defendant the truth. The court opined that plaintiff’s decision-
making concerning the move gave almost no consideration to the children. The suddenness of the
move resulted in the children having makeshift bedrooms without appropriate privacy in an
unfamiliar home. Further, plaintiff seemed to offer conflicting views on the distance between
Rochester and New Baltimore, sometimes characterizing it as an insignificant 20- to 30-minute
drive when convenient to her position, and sometimes representing the distance as logistically
unworkable for weekday parenting time and extracurricular activities to create sympathy for the
children. The court observed that other actions by plaintiff reflected her failure to observe
appropriate boundaries for her relationship with the children and a disinclination toward candor
and healthy interactions with the children.
The court observed, defendant raised his concerns with plaintiff directly, instead of
involving the children, and described appropriate disciplinary methods, guidance, and supervision.
Defendant also had a greater willingness to take advice from professionals and he prioritized his
role as a parent of the children over his desire to be their friend. The court determined that the
children had more stability and permanence as a family unit with defendant in Rochester compared
to plaintiff’s recent move and integration of both her and her new husband’s children into a single
blended family.
The trial court also addressed the statutory parenting-time factors, MCL 722.27a(7), most
of which were deemed irrelevant, duplicative of best-interest factors, or not relevant to the issues
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raised on appeal. Relative to parenting-time factor (e) (inconvenience and burden of traveling for
parenting time), the court again observed that the burden of traveling between the parties’ homes
was created by plaintiff’s decision to prioritize her own needs, already negatively impacted the
children, and would be likely to cause more difficulty over time. The court also determined under
parenting-time factor (g) (whether a parent has frequently failed to exercise parenting time) that
despite isolated instances of missed parenting time by defendant, his overall history did not reflect
failure to exercise parenting time.
The court held that plaintiff failed to demonstrate that uprooting the children from the
school district they had always known served their best interests. The court further held that both
parties failed to present clear and convincing evidence to support modifying the parties’ joint
physical custody. However, it found that modification of the parenting-time schedule would serve
the children’s best interests. The court emphasized that it took care not to disturb the children’s
established custodial environments while simultaneously minimizing the unnecessarily excessive
travel between Rochester and New Baltimore each day for school. To that end, the court granted
plaintiff parenting time three weekends of each month, as well as nonovernight parenting time on
Wednesday afternoons. The court granted defendant the balance of the parenting time during the
school year. During summer break, the court ruled that parenting time be exercised on alternating
weeks. The court did not alter the parties’ previous holiday schedule.
II. STANDARDS OF REVIEW
“Under the Child Custody Act, MCL 722.21 et seq., ‘all orders and judgments of the circuit
court shall be affirmed on appeal unless the trial judge made findings of fact against the great
weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major
issue.’ ” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010), quoting MCL 722.28.
“Under this standard, a reviewing court should not substitute its judgment on questions of fact
unless the factual determination clearly preponderates in the opposite direction.” Id. (quotation
marks, alteration, and citation omitted). When parents cannot agree on important decisions, the
court must resolve the issue in the best interests of the child. Id. “A finding of fact is against the
great weight of the evidence if the evidence clearly preponderates in the opposite direction.”
Pennington v Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019).
III. ANALYSIS
A. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Plaintiff first argues that the trial court erred by finding that defendant established proper
cause and a change of circumstances permitting reconsideration of the parties’ custody
arrangement. We disagree.
Defendant contends that plaintiff waived review of this issue by agreeing in her own
motion, at oral argument, and in a stipulated order that provided that the required threshold had
been met. Plaintiff disagrees, reasoning that she contested defendant’s motion and that stipulating
to an order reflecting the court’s oral ruling did not waive her right to appeal the underlying
decision. “A waiver is an intentional relinquishment or abandonment of a known right.” Nexteer
Auto Corp v Mando America Corp, 314 Mich App 391, 395; 886 NW2d 906 (2016) (citation
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omitted). “A stipulation is an agreement, admission or concession made by the parties in a legal
action with regard to a matter related to the case.” Id. (quotation marks and citation omitted). For
a stipulation to constitute waiver, the language must “show an intent to plainly relinquish that
right.” Id. at 395-396 (citation omitted). If an issue has been waived below, this Court will not
review it on appeal. LeFever v Matthews, 336 Mich App 651, 670 n 3; 971 NW2d 672 (2021).
We are unpersuaded that plaintiff waived review of this issue by asserting in her own
motion that “an obvious change of circumstances” had arisen so as to require an evidentiary
hearing. Plaintiff’s motion did not contain a clear statement of the relief she sought. She clarified
at oral argument that she was primarily seeking a change in the children’s school and that any
change in parenting time would be secondary to that issue. She did not ask to change the parties’
custody arrangement. Because plaintiff’s motion did not plainly concede that her move constituted
an appropriate basis to reconsider custody, it did not waive appellate review of this issue. Nor did
her attorney’s signature on the order finding proper cause and change of circumstances have that
effect. As plaintiff correctly points out in her briefing before this Court, appellate review is not
foreclosed merely because the form and substance of an order was approved by stipulation when
the subject order simply memorializes a finding or decision announced after a contested hearing.
Ahrenberg Mech Contracting, Inc v Howlett, 451 Mich 74, 77-78; 545 NW2d 4 (1996).
Whether plaintiff’s attorney waived this issue at oral argument is a closer question. The
trial court considered an evidentiary hearing necessary to address plaintiff’s request to transfer the
children to Anchor Bay schools. After obtaining clarification from plaintiff that she did not seek
a change in custody, the court addressed defendant’s motion, noting that it did involve a request
to change custody. The court stated that plaintiff’s move constituted proper cause and a change in
circumstances because it required the children to commute to school each day. Plaintiff’s attorney
responded, “Correct” which signified counsel’s agreement that plaintiff’s move and the children’s
resulting commute to school constituted a sufficient ground to reconsider custody. Because
plaintiff agreed through her counsel to the trial court’s evaluation of the circumstances, she cannot
challenge that finding on appeal. LeFever, 336 Mich App at 670 n 3. We address this issue,
however, because it is relevant to proper resolution of other issues properly before this Court.
“As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time
order, the moving party must first establish proper cause or a change of circumstances before the
court may proceed to an analysis of whether the requested modification is in the child’s best
interests.” Lieberman v Orr, 319 Mich App 68, 81; 900 NW2d 130 (2017). The trial court may
not “revisit an existing custody decision and engage in a reconsideration of the statutory best-
interest factors” unless the moving party demonstrates proper cause or a change of circumstance
by a preponderance of the evidence. Pennington, 329 Mich App at 571 (citation omitted). In
Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), this Court specified the
threshold requirements a party seeking a change of custody must satisfy:
[T]o establish “proper cause” necessary to revisit a custody order, a movant must
prove by a preponderance of the evidence the existence of an appropriate ground
for legal action to be taken by the trial court. The appropriate ground(s) should be
relevant to at least one of the twelve statutory best interest factors, and must be of
such magnitude to have a significant effect on the child’s well-being. When a
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movant has demonstrated such proper cause, the trial court can then engage in a
reevaluation of the statutory best interest factors.
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[I]n order to establish a “change of circumstances,” a movant must prove that, since
the entry of the last custody order, the conditions surrounding custody of the child,
which have or could have a significant effect on the child’s well-being, have
materially changed. Again, not just any change will suffice, for over time there will
always be some changes in a child’s environment, behavior, and well-being.
Instead, the evidence must demonstrate something more than the normal life
changes (both good and bad) that occur during the life of a child, and there must be
at least some evidence that the material changes have had or will almost certainly
have an effect on the child. This too will be a determination made on the basis of
the facts of each case, with the relevance of the facts presented being gauged by the
statutory best interest factors. [Id. at 512-514.]
The trial court found both proper cause and a change in circumstances because of the
children’s long morning commute from plaintiff’s home in New Baltimore to their schools in
Rochester. Although plaintiff disputed the length of the commute, defendant asserted that it took
approximately an hour to travel from New Baltimore to Rochester. The distance meant that the
children would have to wake up substantially earlier to travel to school from plaintiff’s home than
they would have been required to do when plaintiff resided in Rochester. Under the then-existing
custody order, this disruption in the children’s schedules would affect the majority of their school
mornings. Considering MC’s and AC’s ages—then 13 and 11, respectively—the reduced sleep
and attendant fatigue presented a risk to their academic performance, thereby implicating best-
interest factor (h) (home, school, and community record), MCL 722.23(h), at minimum. While
plaintiff is of the opinion that her move to New Baltimore was a normal life change that did not
significantly affect the children’s well-being, we are unpersuaded that the trial court’s contrary
opinion was against the great weight of the evidence in light of the deference the trial court’s
finding is afforded on appeal. The record before the trial court at the time of its decision did not
clearly preponderate in the opposite direction. Pennington, 329 Mich App at 570.
B. BURDEN OF PROOF
Plaintiff next argues that the trial court erred by concluding that its alteration of the parties’
parenting-time schedule did not affect the children’s established custodial environments. Plaintiff
further reasons that because the court explicitly found that the parties failed to present clear and
convincing evidence supporting a change of custody, it could not order the new parenting-time
schedule because the schedule modified the children’s custody and established custodial
environments. We disagree.
“When resolving important decisions that affect the welfare of the child, the court must
first consider whether the proposed change would modify the established custodial environment.”
Pierron, 486 Mich at 85. “The established custodial environment is the environment in which
‘over an appreciable time the child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort.’ ” Id. at 85-86, quoting MCL
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722.27(1)(c). This determination “is a pivotal step in a custody battle because it dictates the
applicable burden of proof.” Bofysil v Bofysil, 332 Mich App 232, 243; 956 NW2d 544 (2020).
When modification of an earlier judgment or order would change the established custodial
environment, “the moving party must show by clear and convincing evidence that it is in the child’s
best interest.” Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010) (citations omitted). “If
the proposed change does not change the custodial environment, however, the burden is on the
parent proposing the change to establish, by a preponderance of the evidence, that the change is in
the child’s best interests.” Id. (citation omitted).
Plaintiff relies heavily on Lieberman, 319 Mich App 68. In that case the trial court granted
the father’s motion to modify parenting time and change the children’s schools after determining
that (1) the dispute primarily centered on which school the children should attend; (2) any change
in parenting time was a secondary request to accommodate the change in school; (3) the children
had an established custodial environment with both parents that would be unaffected by a change
in schools; and (4) a preponderance of evidence demonstrated that changing the children’s schools
was in their best interests. Id. at 76. In order to facilitate the school transfer, the court reversed
the previous parenting-time schedule, thereby reducing the mother’s parenting time from 225
overnights to 140 overnights each year. Id. at 72, 76.
This Court vacated the trial court’s order because it failed to apply the correct legal
framework to the father’s motion. Id. at 84, 93-94. This Court determined that the father’s motion
was a mislabeled request to change physical custody, because he sought a schedule that would
reduce the mother’s primary physical custody to a distinct minority of the year. Id. at 85-86.
“Thus, it defies the plain meaning of the word ‘primary,’ as well as rudimentary mathematics, to
say that reducing the primary custodian’s overnights with the children from 225, or nearly 62% of
the calendar year, to 140, or approximately 38% of the calendar year, does not change primary
physical custody.” Id. This Court determined that, in light of the proposed change in physical
custody, the trial court should have applied “the more burdensome and restrictive standard set forth
in Vodvarka . . . and the first issue the trial court had to consider was whether [the father] had
established proper cause or a change of circumstances that met the standards set forth in
Vodvarka.” Id. at 86. This Court reasoned that, even accepting the father’s motion as simply
seeking modification of parenting time and a change of schools, the standards outlined in Vodvarka
would remain the applicable legal framework because the trial court erred by finding that the
proposed change would not affect the established custodial environment the children had with the
mother. Id. at 86-87. Notably, Vodvarka requires the moving party to make a preliminary showing
before the trial court may consider whether the proposed modification is in a child’s best interests.
Id. at 93-94. That is, under Vodvarka, the movant must first establish proper cause or a change of
circumstances having a significant effect on the child’s well-being, Vodvarka, 259 Mich App
at 512-513 (describing necessary threshold showing), and the trial court never addressed that
requirement in Lieberman, 319 Mich App at 76.
The instant case does not suffer from the same procedural defect. At the first motion
hearing, the trial court recognized that defendant requested a change in physical custody and that
it might be difficult to craft a parenting-time order that did not alter the children’s established
custodial environment. The court also found proper cause and a change of circumstances
consistent with the requirements of Vodvarka. As explained later in this opinion, the trial court’s
finding regarding that threshold was not against the great weight of the evidence. Having made
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the necessary threshold finding, the trial court could properly hold an evidentiary hearing and
reconsider the statutory best-interest factors.
In presenting her argument regarding the burden of proof applicable to the trial court’s
decision, plaintiff seems to conflate the concepts of physical custody and established custodial
environment. For instance, she contends that if the 85-day reduction in overnights involved in
Lieberman “effectively changed custody,” so too did the 146-day reduction ordered by the trial
court in this case. We assume from context and plaintiff’s reliance on Lieberman, that she is
referring to physical custody. Legal custody is not at issue in this case. She then follows this
assertion with citation to caselaw regarding changes to the established custodial environment,
which require clear and convincing evidence regarding the child’s best interests. Further
compounding this confusion, plaintiff at times asserts that the trial court’s order clearly “changes
the established custodial environment of the children without holding [defendant] to the correct
evidentiary burden” (emphasis added), only to later argue that “the trial court entered an order that
did in fact change custody, in contravention of the Child Custody Act, which requires that a party
demonstrate that a change in custody is clearly and convincingly in the child’s best interest.”
(Emphasis added.)
As explained in Lieberman, although the Child Custody Act does not define “physical
custody,” it is defined in the Uniform Child-Custody Jurisdiction and Enforcement Act, MCL
722.1101 et seq., as “ ‘the physical care and supervision of a child.’ ” Lieberman, 319 Mich App
at 79, quoting MCL 722.1102(n). In child-custody disputes, physical custody is similarly
understood to refer to “a child’s living arrangements.” Lieberman, 319 Mich App at 79. An
established custodial environment, on the other hand, is not strictly a matter of living arrangements.
“A child’s established custodial environment is the environment in which ‘over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort.’ ” Pennington, 329 Mich App at 577, quoting MCL
722.27(1)(c). “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 may exist in more than one home” and is not dependent on
the nature or existence of a custody order. Marik v Marik, 325 Mich App 353, 361; 925 NW2d
885 (2018) (quotation marks and citation omitted). Whether a custodial environment is established
is “an intense factual inquiry.” Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001).
Inasmuch as plaintiff argues that defendant had to present clear and convincing evidence
regarding the children’s best interests because the trial court’s order modified the children’s
established custodial environments, we disagree with the underlying premise that the children’s
established custodial environments were, in fact, altered by the trial court’s order. The trial court
found that the children had an established custodial environment with both parents, and plaintiff
does not dispute that finding—only the trial court’s determination that its newly ordered parenting-
time schedule left the joint established custodial environments unchanged. After concluding that
the children should remain in Rochester schools, the trial court explained its modification of the
parties’ parenting-time schedule as “tailored to minimize the amount of change and includes some
non-overnight parenting time for Plaintiff during the school week to preserve the relationship she
has with the children, but not at the cost of the children having to travel so far to get to and from
school during the school week.” The court “was mindful that it should not disturb the children’s
established custodial environment.” The trial court did not err in this regard.
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Although the time a child spends with each parent commonly affects the established
custodial environment, that is not always the case as a matter of law. See, e.g., Lieberman, 319
Mich App at 86 n 9 (stating that in cases of joint physical custody, an 85-day reduction in parenting
time “would likely affect the established custodial environment”) (emphasis added); Rains v Rains,
301 Mich App 313, 324; 836 NW2d 709 (2013) (noting that substantial reduction in parenting
time can “potentially” change established custodial environment). The existence of an established
custodial environment is always “an intense factual inquiry,” Foskett, 247 Mich App at 6, that
should not be assessed by a blind consideration of the quantity of overnight parenting time.
In this case, while the children spent a large majority of their time with plaintiff, the
evidence demonstrated that they routinely looked to both parents for guidance, discipline, the
necessities of life, and parental comfort, and could continue to do so under the new parenting-time
schedule. The trial court undertook a substantial effort to focus on the nature of the children’s
relationship with each parent and ensure that the new schedule would facilitate continuation of
those relationships.
We also find it noteworthy that plaintiff does not dispute that the children had established
custodial environments with both parties under the previous parenting-time order, which involved
a nearly identical split of parenting time during the school year, albeit with plaintiff having the
majority of the weekday parenting time. Despite spending only every other weekend and every
other Thursday evening with defendant, the children transitioned from what was previously a
strained relationship with defendant to a healthy one of the sort that results in an established
custodial environment. To the credit of both parents, the children had no apparent difficulty
communicating with each parent from the other parent’s household and did so whenever the need
arose. By way of example, when AC faced a bully situation at school, he told both parents about
it, specifically taking time to reach out to defendant by phone during plaintiff’s parenting time.
Similarly, when MC felt unwell and wanted to stay home from school during defendant’s parenting
time, she reported her illness to both parents. Plaintiff then reminded defendant about the school’s
sick policy, and defendant took MC to the pediatrician for evaluation. Under these unique
circumstances, there is no reason why this open communication and the strong parent-child
relationships would be interrupted merely because the trial court effectively reversed the school
year parenting-time schedules. The character of the respective relationships could remain intact.
Because the children’s joint established custodial environments remained the same, the trial court
did not have to find clear and convincing evidence that the change in parenting time served the
children’s best interests. Instead, the decision required only a preponderance of evidence that the
change served their best interests. Lieberman, 319 Mich App at 84; Shade, 291 Mich App at 23.
To the extent that plaintiff argues that the higher evidentiary burden applies solely because
the trial court altered the children’s physical custody, we again disagree. In Lieberman, 319 Mich
App at 83-84, this Court’s summary of the controlling law stated that “[i]n matters affecting
custody, when the child has an established custodial environment with each parent, the movant
must prove by clear and convincing evidence that the proposed change is in the best interests of
the child.” This Court stated the law similarly in Foskett, 247 Mich App at 6: “If the trial court
finds that an established custodial environment exists, then the trial court can change custody only
if the party bearing the burden presents clear and convincing evidence that the change serves the
best interests of the child. This higher standard also applies when there is an established custodial
environment with both parents.” (Citations omitted.) Insofar as these passages suggest that the
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existence of an established custodial environment automatically triggers the clear-and-convincing-
evidence standard respecting any change in custody, they are incomplete statements of the law.
The plain language of the relevant statute precludes modification of a previous judgment
or 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.” MCL 722.27(1)(c)
(emphasis added). This language unambiguously conditions application of the clear-and-
convincing-evidence standard on whether the modification would change the established custodial
environment. A long line of cases confirm this understanding. See, e.g., Brown v Brown, 332
Mich App 1, 17; 955 NW2d 515 (2020) (“[C]hanging [the] custodial environment [with the
plaintiff] by granting defendant sole legal and physical custody of the children requires defendant
to prove by clear and convincing evidence that the modification would be in the children’s best
interests.”); Pennington, 329 Mich App at 577 (“When modification of a custody order changes to
whom the child looks for guidance, discipline, the necessities of life, and parental comfort and
support, the movant must demonstrate by clear and convincing evidence that the change is in the
child’s best interests.”) (citations omitted); Griffin v Griffin, 323 Mich App 110, 119; 916 NW2d
292 (2018) (“[W]here an established custodial environment does exist, a court is not to change the
established custodial environment unless there is presented clear and convincing evidence that it
is in the best interest of the child.”) (quotation marks and citations omitted); Phillips v Jordan, 241
Mich App 17, 25; 614 NW2d 183 (2000) (“[W]hen a modification of custody would change the
established custodial environment of a child, the moving party must show by clear and convincing
evidence that it is in the child’s best interests.”) (citation omitted).
For the reasons already explained, the trial court did not err by concluding that the new
parenting-time schedule left the children’s joint custodial environments intact. Consequently, the
court’s conclusion that defendant’s proofs did not rise to the level of clear and convincing evidence
did not render its decision legally erroneous. The burden of proving that the change served the
children’s best interests remained with defendant and that burden was by a preponderance of the
evidence. Shade, 291 Mich App at 23.
C. BEST-INTEREST FINDINGS
Next, plaintiff challenges the trial court’s best-interest findings. We reject plaintiff’s
arguments and conclude that the trial court’s findings were not against the great weight of the
evidence.
In articulating this claim of error, plaintiff offers no arguments regarding specific best-
interest factors. Instead, plaintiff presents a general argument that all the trial court’s findings
were against the great weight of the evidence because they were “overshadowed by the trial court’s
overriding disgust that [plaintiff] had the audacity to get remarried and move 30 miles away.”1
Plaintiff’s position completely mischaracterizes the trial court’s reasoning. The record indicates
that the trial court’s analysis of the best-interest factors considered plaintiff’s marriage and
1
The trial court cited many other reasons supporting its best-interest findings, but we will focus
on plaintiff’s marriage and relocation in order to directly respond to her claim of error.
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resulting relocation, but not because the court disapproved of plaintiff’s desire to move on with
her life. The trial court focused on the manner in which plaintiff disclosed and executed her plans
to relocate. The court expressed concern that plaintiff gave insufficient consideration to how her
decisions affected the children. These concerns were fully supported by ample evidence.
Plaintiff and her then-boyfriend decided to build a home for their blended family in New
Baltimore in October 2020. Plaintiff told the children about the plan shortly thereafter, but she did
not disclose the anticipated move to defendant until December 2020, after defendant developed
suspicions because the children were inquiring about other school districts and plaintiff’s
Rochester home had appeared in a marketing e-mail about local real estate listings. Plaintiff’s
attorney assured defendant that plaintiff would not be moving before 2022. After receiving an
unexpectedly high offer on her Rochester home in February 2021, however, plaintiff decided to
accept the offer and accelerate the move. In February 2021, the children were informed that they
would soon be moving. Plaintiff did not tell defendant about the change in plans until the
beginning of March 2021 and she moved with the children less than two weeks later. The children
did not have traditional bedrooms but instead used community rooms (a dining room and a den)
that were converted into sleeping quarters. Moreover, the March 2021 move to the existing home
of plaintiff’s fiancé also meant that the children would have to move yet again when the new house
was completed around the end of the year.
Even with the benefit of hindsight, plaintiff did not acknowledge that her practice of staged
disclosures placed the children in the uncomfortable position of feeling as though they had to keep
secrets from defendant. While plaintiff denied that she specifically told the children to withhold
information from defendant, she also admitted telling the children “what happens at dad’s house
is dad’s business and what happens at our house is our business,” thereby conveying the message
to the children to withhold information from their father. Plaintiff also admitted calling MC a
“snitch.” She could not recall the context of this statement, but other evidence suggested that it
occurred after MC “spilled the beans” about the move.
Plaintiff also testified that she was aware all along that she would need approval from the
trial court or defendant before transferring the children from Rochester schools to Anchor Bay
schools. Yet instead of reassuring the children that their schooling would remain the same until
further notice, she promoted Anchor Bay schools to the children and may have provided them
“discussion points” about the favorability of that district to discuss in counseling. Plaintiff’s
approach left the children with uncertainty about what to expect for their schooling and, again,
placed them in the middle of what should have been a decision for the parties to make together as
joint legal custodians and cooperative coparents.
We have no difficulty agreeing with the trial court’s belief that plaintiff’s actions, coupled
with the bare fact that the children were moved to an unfamiliar town to live with a new blended
family,2 affected the statutory best-interest factors, including plaintiff’s ability to give the children
2
Plaintiff argues elsewhere that the trial court’s reference to her blended household suggested it
was penalizing her for marrying a man with children of his own. Our comment regarding the same
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guidance, MCL 722.23(b); the stability of the children’s environment and desirability of
maintaining continuity, MCL 722.23(d); the permanence of the custodial homes and family unit,
MCL 722.23(e); plaintiff’s moral fitness as a parent, MCL 722.23(f); and the children’s home,
school, and community record, MCL 722.23(h).
Plaintiff contends that the trial court’s belief that she elevated her own desires over the
children’s best interests was at odds with the evidence that the children were happy. But happiness
does not necessarily equate with what is best for a child. This aspect of plaintiff’s argument also
fails to appreciate that another driving concern behind the trial court’s best-interest analysis was
the effect the morning commute had on the children. Defendant and the children’s counselor both
expressed concern about the exhaustion the children were exhibiting since school resumed and
they began commuting from New Baltimore to Rochester on a regular basis. The trial court
observed their exhaustion for itself when it interviewed the children on a school day. All
modifications of custody and parenting-time order must be made in the best interests of the child,
Shade, 291 Mich App at 23, and regular exhaustion on school days did not serve these children’s
best interests.
The only other argument plaintiff presents respecting the trial court’s best-interest analysis
is that the trial court relied on ex parte communications from the GAL in reaching its decision.
We reject plaintiff’s evidentiary argument because she clearly waived review of this issue. When
the GAL was appointed, plaintiff and her attorney both signed an order unambiguously stating that
neither the GAL’s recommendations nor any communications to her “by any individual other than
the minor child(ren)” would be confidential. That order further dictated that
[t]he Guardian Ad Litem shall interview the minor child(ren), and shall issue a
separate recommendation directly to the Court, which report shall not be available
to the parties or counsel. Any and all disclosures made by the minor child(ren) to
the Guardian Ad Litem are confidential, and will not be disclosed, except to the
Court.
Any uncertainty this order left as to whether the trial court could rely on such confidential
reports in deciding the parties’ motions was definitively resolved when plaintiff’s attorney agreed
at the evidentiary hearing to the admission of all the GAL’s reports and correspondence as joint
exhibits. The GAL identified each of those documents on the record, specifically noting that there
were two letters regarding interviews with the children that were provided only to the court. In
the midst of identifying all of the GAL’s communications, plaintiff’s attorney said: “Judge, I’m,
I’m okay with you seeing everything and anything that you want. I have no objection to anything.”
Counsel reiterated his agreement when specifically asked about the first confidential
communication, and confirmed that there were no other preliminary matters to address after the
trial court admitted the second confidential communication as another joint exhibit. “By agreeing
to the admission of evidence, a party waives a claim of error regarding the admission of the
stipulated evidence on appeal.” In re Gordon Guardianship, 337 Mich App 316, 320 n 4; 975
point is in no way a “punishment,” but rather a recognition of the fact that plaintiff’s household
lacked a history of “permanence, as a family unit . . . .” MCL 722.23(e).
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NW2d 114 (2021) (citation omitted). See also LeFever, 336 Mich App at 670 n 3 (“To allow a
party to assign error on appeal to something that he or she deemed proper in the lower court would
be to permit that party to harbor error as an appellate parachute.”) (citation omitted).
D. CHANGE OF SCHOOLS
Plaintiff also argues that the trial court erred by failing to make specific best-interest
findings regarding her motion to change schools and by reaching a decision inconsistent with
public policy. We disagree.
Plaintiff takes issue with the trial court’s failure to make separate best-interest findings
concerning her request to change the children’s school. This position is unpersuasive. In Pierron,
486 Mich at 91, our Supreme Court held that “when a trial court is considering a decision that will
not modify the established custodial environment, such as the change-of-school issue in this case,
it must consider the applicability of all the [best-interest] factors.” “However, if the trial court
determines that a particular factor is irrelevant to the immediate issue, it need not make substantive
factual findings concerning the factor beyond this determination, but need merely state that
conclusion on the record.” Id. Plaintiff has not cited any authority suggesting that when a trial
court is resolving two motions brought under the Child Custody Act—both of which require
analysis of the statutory best-interest factors—it must make separate findings regarding the factors
for each motion. Such a rule would be unduly cumbersome, especially in situations where the
motions involve overlapping circumstances and evidence, as the case here.
Having reviewed the trial court’s lengthy analysis of the best-interest factors, it is apparent
that the court made findings regarding plaintiff’s request to change schools under the factors it
deemed relevant. Under factor (b) (capacity and disposition to provide love, affection, and
guidance, and to continue education and raising child in his or her religion or creed), MCL
722.23(b), the trial court found that plaintiff’s request to change schools sought to disrupt the
children’s education without legitimate reasons beyond the obstacles she created by moving, which
did not reflect well on her capacity and disposition to guide the children in their education. Under
factor (d) (length of time in stable, satisfactory environment, and desirability of maintaining
continuity), MCL 722.23(d), the court found that the children had stability in Rochester, where
they had always lived and attended school. Under factor (h) (home, school, and community
record), MCL 722.23(h), the court noted that plaintiff relied on a slide presentation regarding the
Anchor Bay school district, which indicated that it offered a number of advanced placement
programs, honors programs, and a “Career Technical Educational” program that would allow MC
to explore her interest in a child care or an educational career path. The record reflects that other
evidence established that MC was shy by nature and slow to make friends, and both children were
performing well, without disciplinary issues, in their Rochester schools. The court rejected
plaintiff’s suggestion that the career program in Anchor Bay provided a good reason to change
schools, reasoning that MC could obtain comparable experience by way of part-time employment
in Rochester. Nor was the Anchor Bay swim program a persuasive reason to transfer schools,
especially when plaintiff had never explored the availability of a swim program in Rochester.
Under the “school enrollment” heading of the court’s order, it summarized its view of the
foregoing as follows:
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The only reason the matter is being addressed is because Plaintiff unilaterally
moved the children to a new home. The Court has reviewed the evidence presented
and is not persuaded that there is any reason to uproot the children from Rochester,
where they have grown up, to attend a new school. Plaintiff is aware that this could
have been an outcome as she was denied a similar request when she merely wanted
to move the children to a different school in the same district. The Court is
dismayed that Plaintiff placed the children in a state of uncertainty before she made
any request of the Court, let alone told Defendant.
The preponderance of evidence standard is “simply that evidence which
outweighs that which is offered to oppose it.” Martucci v Ballenger, 322 Mich 270,
274; 33 NW2d 789 (1948), quoting Strand v Chicago & WM Ry Co, 67 Mich 380;
34 NW 712 (1887). Essentially, the standard is that the scale tips to one side more
than the other.
To carry Plaintiffs burden, she needed to tip the scale in her favor.
Plaintiff’s evidence is summed up as her own self-centered decision making, an ill-
conceived and poorly executed plan, and a swim team. Plaintiffs evidence falls far
short of meeting her burden. The Court finds that the children shall remain . . .
enrolled in the Rochester Community School District.
While we agree that the foregoing summary would be inadequate on its own, viewed in the context
of the court’s detailed analysis of the best-interest factors, the court did not err by declining to
provide a duplicative assessment of the statutory factors focused only on the proposed change of
schools.
Plaintiff further argues that the trial court’s denial of her motion, and reasons for doing so,
are contrary to public policy favoring marriage and preservation of the family unit. Her general
policy arguments, however, cannot overcome binding caselaw interpreting the Child Custody Act.
When parents are unable to agree on important decisions, “such as a change of the child’s school,
the court is responsible for resolving the issue in the best interests of the child.” Pierron, 486 Mich
at 85. The trial court endeavored to do that in this case, and plaintiff has not established error
requiring reversal.
Plaintiff also asks this Court to order assignment of a new judge for further proceedings on
remand. Because we find no error requiring reversal we have no reason to remand for further
proceedings; therefore, we need not consider whether a new judge should be assigned. Cassidy v
Cassidy, 318 Mich App 463, 510; 899 NW2d 65 (2017).
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ James Robert Redford
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