Michael Patrick Ryan v. Michaela Sophia Spiessl ( 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
MICHAEL PATRICK RYAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellee,
v No. 360000
Marquette Circuit Court
MICHAELA SOPHIA SPIESSL, LC No. 19-057956-DM
Defendant-Appellant.
Before: GARRETT, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
In this custody dispute, defendant appeals as of right the trial court’s orders denying her
motion to change the domicile of the parties’ minor children, and denying the parties’ cross-
motions for change of the children’s custody. We vacate the trial court’s finding of contempt
against defendant, but affirm in all other respects.
I. BACKGROUND
The parties are the parents of two minor children, KPR and JCR. Pursuant to a judgment
of divorce entered on February 6, 2020, the parties were awarded joint physical and legal custody
of the children. They shared physical custody of the children under an alternating schedule of four
days on and four days off. At the time the judgment was entered, the parties lived in Negaunee
Township, Michigan. The judgment prohibited the parties from moving the children’s domicile
in Negaunee Township more than 100 miles away without the consent of the other party or an
order of the court.
Following the parties’ divorce, defendant found a job with the Michigan Department of
Corrections in Kincheloe, Michigan, which is more than 100 miles from Negaunee Township.
Defendant did not initially inform plaintiff of the move, but the children stayed with defendant in
Kincheloe during her parenting time. When plaintiff became aware that defendant resided in
Kincheloe, he filed a motion to modify the children’s custody by awarding him primary physical
custody of the children. Defendant filed a cross-motion for modification of custody, and a separate
motion to change the children’s domicile. Following an evidentiary hearing and a de novo review
hearing, the trial court denied defendant’s motion for a change of domicile, and denied the parties’
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cross-motions to modify custody. The trial court also found defendant in contempt “for failing to
take steps in a timely manner to seek a change in the children’s legal residence.” Defendant now
appeals.
II. STANDARDS OF REVIEW
“This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to
grant a motion for change of domicile.” Moote v Moote, 329 Mich App 474, 477; 942 NW2d 660(2019) (quotation marks and citation omitted). In child custody cases, the trial court abuses its
discretion when its decision is “palpably and grossly violative of fact and logic . . . .” Id. at 477-
478 (quotation marks and citations omitted).
MCL 722.28 provides:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, 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.
Thus, a trial court’s findings, including the trial court’s findings in applying the MCL 722.31
factors, should be affirmed unless the evidence clearly preponderates in the opposite direction.
Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). “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). “In reviewing a trial court’s
findings, this Court should defer to the trial court’s determination of credibility.” Moote, 329 Mich
App at 478 (citation omitted). “Further, this Court may not substitute its judgment on questions
of fact unless the facts clearly preponderate in the opposite direction.” Id. (quotation marks and
citation omitted).
This Court generally reviews constitutional issues de novo. Upper Peninsula Power Co v
Village of L’Anse, 334 Mich App 581, 591; 965 NW2d 658 (2020). “This Court reviews a trial
court’s decision regarding a contempt motion for an abuse of discretion.” DeGeorge v Warheit,
276 Mich App 587, 591; 741 NW2d 384 (2007). “If the trial court’s decision results in an outcome
within the range of principled outcomes, it has not abused its discretion.” In re Contempt of Henry,
282 Mich App 656, 671; 765 NW2d 44 (2009).
III. ANALYSIS
Defendant argues that the trial court abused its discretion by denying her motions for a
change of the children’s domicile and to modify their physical custody. Defendant principally
argues that the trial court did not adhere to the appropriate evidentiary standard, that it erred by
finding that the children had an established custodial environment with both parties, and that its
findings regarding several of the statutory best-interest factors were against the great weight of the
evidence. Defendant also argues that inconsistent rulings by the trial court and its decision to
review plaintiff’s mental health records in camera undermined her right to procedural due process,
and that the court erred by finding her in contempt. Although we agree that the finding of contempt
should be set aside, we disagree with each of defendant’s other claims of error.
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A. CHANGE OF DOMICILE AND MODIFICATION OF CUSTODY
MCL 722.31 governs a child’s change of domicile and 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.
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(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 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.
This Court has distilled a court’s analysis when considering a change of domicile into the
following factors:
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 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
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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. [Moote, 329 Mich App at 480, quoting Rains v Rains, 301
Mich App 313, 325; 836 NW2d 709 (2013) (citation omitted).]
When considering these factors, the court’s primary focus must be on the child. Moote,
329 Mich App at 480. Defendant’s primary challenge to the trial court’s decision denying her
motion to change the children’s domicile is that the court erred (1) by finding that the children had
an established custodial environment with both parties, and (2) by failing to properly apply the
appropriate evidentiary standard when evaluating the children’s best interests.
Regarding modification of a child’s physical custody, MCL 722.27(1) provides in pertinent
part:
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:
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(c) Subject to subsection (3), 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 . . . . 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. The custodial environment of a child 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. If a motion for change of custody is filed while a parent is active duty,
the court shall not consider a parent’s absence due to that active duty status in a
best interest of the child determination.
See also Pierron, 486 Mich at 85-86 (stating that an established custodial environment is the
environment in which the child, over an appreciable time, naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort) (quotation
marks and citation omitted). Accordingly, defendant’s challenges to the trial court’s decisions on
her motions for a change of domicile and for modification of physical custody dovetail because
they both address whether the trial court erred by finding that an established custodial environment
existed with both parties, and whether the court properly weighed the best-interest factors of MCL
722.23 in the context of the correct evidentiary standard.
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First, defendant does not dispute that the children had an established custodial environment
with her, but she argues that the trial court erred by finding that the children also had an established
custodial environment with plaintiff. We conclude that the record amply supports the trial court’s
finding.
The parties shared joint physical custody of the children under an alternating schedule of
four days on and four days off. Thus, the parties had physical custody of the children for relatively
equal amounts of time. Respecting plaintiff in particular, Luke Siebert, a witness who knew
plaintiff, described plaintiff as a “great father,” and explained that when the children are with
plaintiff, the trio are together “doing boy things.” Siebert described how plaintiff and the boys
would climb tree houses, sit around campfires, and make smores. Similarly, plaintiff’s mother,
Jeanne Ryan, testified that both she and her husband have a close relationship with the children.
She described plaintiff as a “loving, supportive father” who taught the children to write their names
and encouraged their participation in church. She observed plaintiff snuggling with the children,
watching a children’s video with them, helping them with chores, and “just having free time to
play.” Ryan described both boys as “[v]ery affectionate” with plaintiff, and said they would run
to plaintiff, jump on him to hug and kiss him, and wrestle and hang out together. Another witness,
Andrew Bek, knew plaintiff from his involvement in the ski patrol and other community
organizations, and he described plaintiff as “a responsible dad,” who is “[a]ffectionate” and gives
parental guidance and discipline to his children as appropriate.
Plaintiff described his bond with the children as follows:
You know, it’s almost unshakeable the way that they react to seeing me
upon picking them up and first thing in the morning and the way we go about it.
It’s a magical thing. I really enjoy being their dad.
Considering both the parties’ alternating physical-custody schedules and the body of
evidence describing plaintiff’s parenting of and interaction with the children, the trial court’s
finding that an established custodial environment existed with both plaintiff and defendant is not
against the great weight of the evidence.
Next, defendant’s argument that the trial court utilized an improper burden of proof in
considering her motions for a change of domicile and modification of physical custody lacks merit.
Respecting the motion to change domicile, after determining that the children had an established
custodial environment with both parties, the trial court next properly considered whether a change
of domicile would modify or alter that established custodial environment, Moote, 329 Mich App
at 480, and it concluded that it would. Considering the distance between plaintiff’s residence and
defendant’s new residence, and the trial court’s observation that it would be unrealistic for the
children to continue to have residences with both parents, the trial court’s finding that a change of
domicile would disrupt the children’s established custodial environment with plaintiff is not
against the great weight of the evidence. As such, the trial court properly determined that it was
necessary for defendant to establish that a change in domicile was in the children’s best interests
“by considering whether the best-interest factors in MCL 722.23 have been established by clear
and convincing evidence.” Moote, 329 Mich App at 480. Likewise, the trial court also properly
determined that it could not modify the children’s existing physical-custody arrangement unless
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clear and convincing evidence established that a modification served the children’s best interests.
MCL 722.27(1)(c).
B. BEST-INTEREST FACTORS
Next, defendant challenges the trial court’s findings regarding several of the statutory best-
interest factors. MCL 722.23 sets forth the best-interest factors as follows:
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
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. A court may not consider negatively
for the purposes of this factor any reasonable action taken by a parent to protect a
child or that parent from sexual assault or domestic violence by the child’s other
parent.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
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(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
Defendant argues that the trial court erroneously found that Factor (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) equally favored both
parties. Defendant asserts that the trial court should have found that this factor favored her because
the evidence demonstrated that she was the parent who made sure that the children had a religious
upbringing. While defendant presented evidence that she took the children to church and Bible
school at Maplewood Baptist Church in Kincheloe, the evidence also showed that both parties
were bonded to the children, gave them love and affection, and both actively participated in their
education. Moreover, Ryan testified that she had observed plaintiff and the children “willingly
participate in church.” The trial court’s decision to weigh this factor equally in favor of both
parties is not against the great weight of the evidence.
Defendant also generally challenges the trial court’s findings regarding Factors (a), (d), (e),
and (f). The trial court found that the parties were equal respecting Factors (a) and (f), that Factor
(d) favored plaintiff, and that Factor (e) did not apply. Defendant argues that the trial court’s
findings regarding these factors are against the great weight of the evidence because testimony
from defendant, her mother, and her boyfriend confirmed that the children were victims of physical
abuse by plaintiff. In support of this argument, defendant also relies on photographs depicting
bruises on the children after they returned from parenting time with plaintiff. However, the trial
court reviewed the photographs and concluded that they reflected injuries that were consistent with
typical childhood scratches, abrasions, and bruises, rather than abuse or trauma. Additionally, an
investigator with Child Protective Services (CPS) testified that he investigated the allegations of
child abuse and found them to be unfounded. Having reviewed the photographs and considered
the testimony on this issue, including the CPS investigator’s findings, and plaintiff’s explanations
for the children’s bruises and abrasions, we are not persuaded that the trial court erred in finding
that the children were not physically abused by plaintiff. The trial court’s determinations regarding
Factors (a), (d), (e), and (f) are not against the great weight of the evidence.
As for Factor (h) (the home, school, and community record of the child), defendant is
simply incorrect that the trial court held that the parties did not provide testimony regarding this
factor. The court noted that there were positive influences for the children in Kincheloe and
Kinross, such as their school program and participation in the religious community, but that the
stability they had acquired living with plaintiff in Negaunee Township outweighed those benefits.
Further, while defendant faults the trial court for not making findings regarding plaintiff’s mental
health diagnosis and medications, and whether his mental health issues and medications would
interfere with his parenting of the children, defendant overlooks that the trial court conducted an
in camera review of plaintiff’s medical records and found that plaintiff was appropriately
addressing his mental health issues and that the issues were not interfering with his ability to parent
the children in an effective manner. Accordingly, defendant’s challenges to the trial court’s best-
interest findings lack merit.
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C. INCONSISTENT RULINGS OF THE TRIAL COURT
Defendant also asserts that the trial court made “inconsistent rulings” regarding the
children’s schooling which amount to “procedural irregularities that violated the procedural due
process rights of [defendant] and . . . resulted in a decision which is not in the best interest of the
minor children.” We disagree.
In Pinebrook Warren, LLC v City of Warren, ___ Mich App ___, ___; ___ NW2d ___
(2022) (Docket Nos. 355989, 355994, 355995, 356005, 356011, 356017, 356023, 359269, &
359285); slip op at 24, this Court explained the substantive and procedural prongs of the right to
due process protected by our state and federal constitutions:
Both the United States Constitution and the Michigan Constitution prohibit
the government from depriving persons of life, liberty, or property without due
process of law. See US Const, Am XIV; Const 1963, art 1, § 17. The protections
afforded by these clauses include both a substantive provision, which protects
persons from arbitrary acts by the government, and a procedural component, which
guarantees constitutionally sufficient procedures for the protection of life, liberty,
and property. See Bonner v City of Brighton, 495 Mich 209, 223-224; 848 NW2d
380 (2014), see also Cary Investments, LLC v City of Mount Pleasant, ___ Mich
App ___, ___; ___NW2d___ (2022), slip op at 4-5.
Procedural due process requires—at a minimum—that a person whose
interests might be affected by government action be given notice and a meaningful
opportunity to be heard before the government acts. Bonner, 495 Mich at 235.
Additionally requirements may be necessary depending on three considerations: the
private interest that will be affected, the risk of erroneous deprivation of such
interest through the procedures used, and the probable value of additional or
substitute procedural safeguards. Id.
In this case, throughout the proceedings, the trial court gave defendant opportunity to be
heard on the issue of KPR’s education and the choice for his school. Moreover, it is not unusual
in domestic relations matters for interim rulings to evolve factually over time, and the parties and
the trial court in this matter appeared to be under the mistaken impression that hybrid learning was
an option at Maplewood Baptist Academy. The trial court’s decisions respecting KPR’s education
and school choice evolved as information changed and as the court made its final determinations
regarding the children’s physical custody and domicile. During this process, the court afforded
defendant a full opportunity to participate in the proceedings and be heard on her position.
Therefore, we reject defendant’s argument that her procedural due-process rights were violated.
D. MENTAL HEALTH RECORDS
Defendant next argues that the trial court erred by holding an in camera review of
plaintiff’s medical records, which she asserts violated her procedural due-process rights. The
lower court record indicates that plaintiff’s medical records from the Department of Veterans
Affairs were filed with the trial court on November 4, 2021. After reviewing the records, the court
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prepared a confidential memorandum, dated November 9, 2021, that addressed plaintiff’s mental
health issues and how they impacted his parenting.
On appeal, defendant generally argues that the court violated her right to procedural due
process, but she does not adequately explain how. In Pinebrook Warren, LLC, ___ Mich App at
___; slip op at 24, this Court recognized that procedural due process requires “that a person whose
interests might be affected by government action be given notice and a meaningful opportunity to
be heard before the government acts.” (Citation omitted.) Because defendant does not advance a
meaningful argument, supported by relevant facts, she has effectively abandoned this argument on
appeal, and therefore, we decline to address it. In re Conservatorship of Murray, 336 Mich App
234, 260-261; 970 NW2d 372 (2021).
E. FINDING OF CONTEMPT
Defendant argues that the trial court erred by finding her in contempt, which she contends
contributed to the trial court erroneously denying her motions for a change of domicile and a
modification of custody. We agree that the trial court erred by finding defendant in contempt, but
disagree that this finding affected the court’s decisions on the motions for a change of domicile or
modification of custody.
Defendant essentially argues that the trial court held her liable for anticipatory contempt,
which occurs when a party indicates its intention not to comply with an order of the trial court in
the future. In re Dougherty, 429 Mich 81, 106-107; 413 NW2d 392 (1987). That, however, is not
what transpired in this case. The record is clear that the children were moved more than 100 miles
away from their home in Marquette County when defendant moved them to Kincheloe without
obtaining plaintiff’s consent or permission from the trial court. In its ruling holding defendant in
contempt, however, the trial court did not state if it found defendant in criminal or civil contempt.
To the extent that defendant’s conduct of moving the children more than 100 miles away from
their legal residence without plaintiff’s consent or an order of the court violated the divorce
judgment, such conduct would lend itself to a finding of criminal contempt. Id. at 85. Moreover,
the conduct occurred outside the presence of the court and the requirements of MCR 3.606 were
not followed before the court made its finding of contempt. Under the circumstances, the trial
court’s contempt finding cannot stand. Accordingly, we vacate the finding of contempt. Contrary
to what defendant asserts, however, the record discloses that the trial court did not consider or
factor its contempt finding in its analysis of defendant’s motion for a change of domicile or the
cross-motions for a change of custody. Therefore, any error related to the trial court’s finding of
contempt was harmless, MCR 2.613(A), and does not warrant appellate relief respecting the
court’s decisions denying the motions for change of domicile or change of custody.
Affirmed in part and vacated in part. We do not retain jurisdiction.
/s/ Kristina Robinson Garrett
/s/ Colleen A. O’Brien
/s/ James Robert Redford
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