Katharine Marie Sprague v. Robert Franklin Houston Bray ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
KATHARINE MARIE SPRAGUE, UNPUBLISHED
September 27, 2016
Plaintiff-Appellant,
v No. 331280
Lapeer Circuit Court
Family Division
ROBERT FRANKLIN HOUSTON BRAY, LC No. 14-047491-UM
Defendant-Appellee.
Before: BORRELLO, P.J., and MARKEY and RIORDAN, JJ.
PER CURIAM.
Plaintiff appeals as of right a final order closing the case in this child support and
parenting time dispute. However, the issues raised by plaintiff on appeal relate to the trial
court’s prior order granting defendant out-of-state parenting time. We vacate the trial court’s
parenting time modification and remand for reevaluation of the contested best-interest and
parenting-time factors.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties’ minor daughter, EB, was born while plaintiff and defendant were married
and residing together in Delaware. In 2013, the parties separated and filed for divorce in that
state. On November 23, 2014, plaintiff and EB moved to Lapeer, Michigan, with defendant’s
consent, and defendant moved to Pennsylvania. On March 20, 2014, the parties entered an
interim consent order in Delaware, which granted plaintiff sole legal custody of EB and
established an interim parenting time schedule that allowed defendant visitation in Michigan
once per month and FaceTime communication with EB every other day. A divorce decree was
entered in the Delaware divorce case on April 3, 2014, and plaintiff’s related petition for custody
was dismissed without objection on May 14, 2014.
Because plaintiff was not awarded child support through the Delaware proceeding, she
filed a complaint for child support in the Lapeer Circuit Court on April 7, 2014. On June 12,
2014, defendant filed a motion in connection with the Michigan child support case, which sought
modification of the parenting time schedule established by the March 20, 2014 interim consent
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order.1 The child support and parenting time matters were referred to the Friend of the Court
(“FOC”) for an evidentiary hearing. The FOC referee initially refused to proceed with the
hearing as it related to defendant’s request for parenting time given his concerns that the court
did not have jurisdiction to modify the Delaware order under the Uniform Child Custody
Jurisdiction and Enforcement Act (“UCCJEA”), MCL 722.1101 et seq.
However, at a later hearing in February 2015, the referee concluded that the Delaware
court had implicitly relinquished its jurisdiction over the matter by failing to respond to four
inquiries from the referee regarding the UCCJEA jurisdictional issue. At that time, the parties
had reached an agreement regarding the reunification of defendant and two-year-old EB, which
would be accomplished by granting defendant gradually increasing periods of weekend parenting
time in Michigan. If the proposed “ramp-up” parenting time agreement was successful,
defendant would eventually receive one week of parenting time each month, to take place at his
home in Pennsylvania. This parenting time agreement was memorialized in the referee’s
recommendation and the trial court order entered in accordance with the recommendation. The
referee directed the parties to return for a follow-up hearing in July 2015 to evaluate defendant’s
progress with EB and to determine whether it was appropriate to begin the out-of-state parenting
time contemplated by the final stage of the agreement.
Following a breakdown in the parties’ temporary agreement based on defendant’s failure
to exercise all of the parenting time permitted under the “ramp-up” schedule, the FOC conducted
a full evidentiary hearing on the parenting time issue in September 2015. At that time, the
referee heard testimony from the parties; defendant’s new wife, Karleen Krenicky; plaintiff’s
father, William Sprague; and two employees of Kids in New Directions (“KIND”) who had
provided supervision during three of defendant’s visits with the child. The referee then issued a
recommendation that defendant receive the following parenting time: five consecutive days,
every other month, to take place at his home in Media, Pennsylvania; weekend parenting time in
Michigan during the second full week of the months when he was not exercising parenting time
in Pennsylvania; and remote communication by FaceTime, or a similar application, on Tuesdays,
Thursdays, and Sundays. A temporary order was entered in accordance with the referee’s
recommendation. Both parties then filed objections to the referee’s recommendations. After
conducting a de novo review, the trial court adopted the referee’s recommendations in full except
for several minor changes that are not relevant to this appeal.
II. UCCJEA JURISDICTION
Plaintiff first contends that the trial court’s order must be reversed because the court did
not have subject-matter jurisdiction to modify the interim consent order entered in Delaware.
We disagree.
A. STANDARD OF REVIEW
1
Defendant’s motion was identified as a motion for custody and parenting time, but defendant
later confirmed that he was not necessarily seeking a change in the parties’ custody arrangement.
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“The question whether a court has subject-matter jurisdiction to hear a particular claim is
a question of law that we review de novo. However, the determination whether to exercise
jurisdiction under the UCCJEA is within the discretion of the trial court and will not be reversed
absent an abuse of that discretion.” Jamil v Jahan, 280 Mich. App. 92, 99-100; 760 NW2d 266
(2008).
Plaintiff’s challenge to the trial court’s jurisdiction requires interpretation of the
UCCJEA. Issues of statutory interpretation are reviewed de novo as questions of law. Atchison
v Atchison, 256 Mich. App. 531, 534-535; 664 NW2d 249 (2003). We examine the plain
language of the statute in order to effect the intent of the Legislature. Id. at 535. “If the statutory
language is unambiguous, appellate courts presume that the Legislature intended the meaning
plainly expressed and further judicial construction is neither permitted nor required.” Id.
B. ANALYSIS
1. JURISDICTION UNDER MCL 722.1203
The UCCJEA was designed to address several concerns that arise in interstate custody
matters, including issues involving the exclusive, continuing jurisdiction held by the state that
first enters a decree regarding the custody of a minor. Atchison, 256 Mich. App. at 536. It
“prescribes the powers and duties of the court in a child-custody proceeding[2] involving
[Michigan] and a proceeding or party outside of this state[.]” Cheesman v Williams, 311 Mich
App 147, 151; 874 NW2d 385 (2015) (quotation marks and citation omitted).
Under the UCCJEA, “once an initial child-custody determination occurs, exclusive,
continuing jurisdiction generally remains with the decreeing court.” Atchison, 256 Mich. App. at
538, citing MCL 722.1202. Thus, “[o]nce a court of another state has rendered a child-custody
determination, a Michigan court shall not modify[3] this order . . . unless certain criteria are
established” pursuant to MCL 722.1203. Atchison, 256 Mich. App. at 537. Under MCL
722.1203, except in matters requiring temporary emergency jurisdiction,
a court of this state shall not modify a child-custody determination made by a
court of another state unless a court of this state has jurisdiction to make an initial
child-custody determination under [MCL 722.1]201(1)(a) or (b) and either of the
following applies:
2
“ ‘Child-custody proceeding’ means a proceeding in which legal custody, physical custody, or
parenting time with respect to a child is an issue.” MCL 722.1102(d) (emphasis added).
3
Under the UCCJEA, “ ‘[m]odification’ means a child-custody determination that changes,
replaces, supersedes, or is otherwise made after a previous child-custody determination
concerning the same child, whether or not it is made by the court that made the previous child-
custody determination.” MCL 722.1102(k).
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(a) The court of the other state determines it no longer has exclusive,
continuing jurisdiction under [MCL 722.1]202 or that a court of this state would
be a more convenient forum under [MCL 722.1]207.
(b) A court of this state or a court of the other state determines that neither
the child, nor a parent of the child, nor a person acting as a parent presently
resides in the other state. [Emphasis added.]
In other words, the Lapeer Circuit Court had jurisdiction to modify the existing child-custody
determination made by the Delaware court concerning EB if two criteria were satisfied: (1)
Michigan courts had jurisdiction to make an initial child-custody determination regarding EB,
and (2) there was a determination, as described in MCL 722.1203(a), by the Delaware court that
entered the existing decree, or there was a determination by either the Delaware court or the
Lapeer Circuit Court, that none of the individuals listed in MCL 722.1203(b) resided in
Delaware at that time. Jamil, 280 Mich. App. at 100-101; Atchison, 256 Mich. App. at 537-538.
With regard to the first prong, the record shows that Michigan courts had jurisdiction to
make an initial child-custody determination with regard to EB when the child custody
proceedings were initiated in this case. See Jamil, 280 Mich. App. at 100; Atchison, 256 Mich
App at 537. In relevant part, MCL 722.1201(1)(a) states that “a court of this state has
jurisdiction to make an initial child-custody determination” if “[t]his state is the home state of the
child on the date of the commencement of the proceeding[.]” Michigan is a minor child’s home
state if it is “the state in which a child lived with a parent or a person acting as a parent for at
least 6 consecutive months immediately before the commencement of a child-custody
proceeding.” MCL 722.1102(g). EB moved to Michigan with plaintiff on or about November
23, 2013. Therefore, Michigan became EB’s “home state” for purposes of the UCCJEA six
months later, on May 23, 2014, and it remained her “home state” when defendant initiated the
“child-custody proceeding” at issue in this case on June 12, 2014, by filing a motion to modify
the parenting time arrangement under the Delaware interim consent order.4 See Fisher v
Belcher, 269 Mich. App. 247, 256-257, 259-260; 713 NW2d 6 (2005) (explaining that a “child
support complaint d[oes] not give rise to a child custody proceeding for purposes of determining
jurisdiction under the UCCJEA,” and that a subsequent request concerning custody or parenting
time does not relate back to the filing of the child-support complaint for purposes of determining
jurisdiction under the UCCJEA). Thus, because Michigan was EB’s “home state” when the
child-custody proceeding was commenced, the Lapeer Circuit Court had jurisdiction to make an
4
Plaintiff’s complaint for child support was filed on April 7, 2014, before Michigan qualified as
EB’s “home state.” However, as mentioned supra, the term “child-custody proceeding” is
defined by the UCCJEA as “a proceeding in which the legal custody, physical custody, or
parenting time with respect to a child is an issue,” and it does not include actions for child
support. MCL 722.1102(d); Fisher v Belcher, 269 Mich. App. 247, 256-257; 713 NW2d 6
(2005). Because plaintiff’s April 7, 2014 complaint only implicated defendant’s financial
support obligations and did not involve custody or parenting time issues, it did not commence a
child-custody proceeding for purposes of the jurisdictional question at issue in this appeal.
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initial determination regarding her custody unless otherwise prohibited from doing so under the
UCCJEA.5
Having satisfied the first criterion, the next question is whether either of the alternatives
in MCL 722.1203(a) or (b) is applicable to the circumstances in this case. See Jamil, 280 Mich
App at 100-101. We agree with plaintiff that the referee erroneously concluded that the
Delaware court’s inaction amounted to a formal determination ceding jurisdiction to Michigan
under MCL 722.1203(a). However, the circumstances in this case satisfy the alternative
jurisdictional basis set forth under MCL 722.1203(b). As previously stated, MCL 722.1203(b)
allows a Michigan court to modify an existing child-custody decree if “[a] court of this state or a
court of the other state determines that neither the child, nor a parent of the child, nor a person
acting as a parent presently resides in the other state.” It was undisputed below that neither EB
nor her parents were residing in Delaware when the child-custody proceedings were initiated.
Thus, the Lapeer Circuit Court had jurisdiction to modify the interim consent order pursuant to
MCL 722.1203. We will not reverse the trial court’s exercise of jurisdiction because it reached
the correct result, albeit for the wrong reasons. See Klooster v Charlevoix, 488 Mich. 289, 313;
795 NW2d 578 (2011).
2. IMPLICATIONS OF MCL 722.1206
In the lower court, the referee initially concluded that he could not proceed with
defendant’s request for a modification of the interim consent order without an order from
Delaware explicitly relinquishing its exclusive, continuing jurisdiction under MCL 722.1206.
Plaintiff also relies on MCL 722.1206 in support of her jurisdictional claim on appeal. However,
in invoking this section, plaintiff conflates the UCCJEA’s jurisdictional requirements for
simultaneous child-custody proceedings under MCL 722.1206 with its jurisdictional
requirements for the modification of existing child-custody decrees under MCL 772.1203.
Under MCL 722.1206(1), except in cases involving temporary emergency jurisdiction, a
Michigan court is not permitted to exercise its jurisdiction under the UCCJEA when a child-
custody proceeding already has been commenced in another state, “unless the proceeding has
been terminated or is stayed by the other state because a court of this state is a more convenient
forum[.]” In this case, however, it is undisputed that the parties’ divorce was finalized in
5
Plaintiff argues that the trial court did not have jurisdiction to make an initial child-custody
determination under MCL 722.1201(1)(a) because Delaware was EB’s home state when a child-
custody proceeding was actually commenced there in conjunction with the divorce proceeding
and, as a result, Michigan could not have jurisdiction to enter an initial child-custody
determination because Delaware had jurisdiction to—and did, in fact—enter an initial order
regarding EB’s custody. We reject plaintiff’s reasoning, as it necessarily results in a finding that
Michigan courts are unable to modify existing decrees from other states, as the existence of an
earlier decree would always prevent a Michigan court from making an “initial” child-custody
determination. Such an understanding is undermined by the plain language of the UCCJEA and
our existing caselaw. See, e.g., Jamil, 280 Mich. App. at 100-101; Atchison, 256 Mich. App. at
537-538.
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Delaware on April 3, 2014. At the September 16, 2014 FOC hearing, the referee read into the
record an order of dismissal that had been filed in the Delaware court on May 14, 2014, which
read, “The following petition is hereby dismissed without prejudice, Petition for Custody and
Counterclaim, at the request of the Petitioner; no objection by Respondent.” Consistent with
these records, the referee expressly found at the February 25, 2015 hearing that “the Delaware
proceeding has in fact been completely terminated[.]”
Thus, based on the record received on appeal, a simultaneous proceeding was not
pending in Delaware when the child-custody proceeding was commenced in Michigan on June
12, 2014, as the Delaware action was terminated no later than May 14, 2014. Accordingly, in
contrast to the referee’s initial—and erroneous—conclusion, the provisions of MCL 722.1206
are inapplicable here. As explained above, the standard set forth in MCL 722.1203 controls the
jurisdictional issue in this case.
III. PARENTING TIME MODIFICATION
Next, plaintiff contends that the trial court committed a series of errors related to its
consideration of whether defendant demonstrated proper cause or a change in circumstances
warranting modification of the parenting time schedule and whether modification of defendant’s
parenting time was in the child’s best interests. We agree that the trial court committed clear
legal error by failing to make explicit findings with regard to several best-interest and parenting-
time factors that were contested by the parties.
A. PRESERVATION
Although plaintiff preserved the majority of her claims by raising them in the trial court,
she did not challenge below the trial court’s alleged failure to make a determination regarding
the existence of an established custodial environment. See Loutts v Loutts, 298 Mich. App. 21,
23; 826 NW2d 152 (2012). However, we may overlook a party’s failure to preserve a claim
“when failure to consider the issue would result in manifest injustice, if consideration is
necessary for a proper determination of the case, or if the issue involves a question of law and
the facts necessary for its resolution have been presented.” Mitchell v Mitchell, 296 Mich. App.
513, 521; 823 NW2d 153 (2012) (quotation marks and citation omitted). The existence of an
established custodial environment affects the standards applicable to plaintiff’s other claims of
error. See Shade v Wright, 291 Mich. App. 17, 22-23, 26-28; 805 NW2d 1 (2010). Thus, because
consideration of the issue is necessary for a proper determination of the case, we will disregard
plaintiff’s failure to preserve this claim.
B. STANDARD OF REVIEW
“Orders concerning parenting time must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue.” Pickering v Pickering, 268
Mich. App. 1, 5; 706 NW2d 835 (2005). “Under the great weight standard, the trial court’s
factual determinations will be affirmed unless the evidence clearly preponderates in the other
direction.” Butler v Simmons-Butler, 308 Mich. App. 195, 200; 863 NW2d 677 (2014). An abuse
of discretion occurs when the result is “ ‘so palpably and grossly violative of fact and logic that it
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evidences not the exercise of will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Shulick v Richards,
273 Mich. App. 320, 324; 729 NW2d 533 (2006), quoting Spalding v Spalding, 355 Mich. 382,
384-385; 94 NW2d 810 (1959). “A court commits legal error when it incorrectly chooses,
interprets, or applies the law.” Pickering, 268 Mich. App. at 5 (quotation marks and citation
omitted).
C. ANALYSIS
1. PROPER CAUSE FOR MODIFICATION
As further discussed later in this opinion, a trial court is only permitted to grant parenting
time in accordance with a child’s best interests. See MCL 722.27a(1); Shade, 291 Mich. App. at
31.6 However, as an initial matter, a court shall not modify a parenting time order unless the
moving party first demonstrates proper cause or a change of circumstances warranting the
modification. MCL 722.27(1)(c); Shade, 291 Mich. App. at 22-23. Plaintiff contends that
defendant failed to demonstrate proper cause or a sufficient change in circumstances. We
disagree.
As plaintiff emphasizes on appeal, the trial court failed to make a finding regarding the
existence of an established custodial environment and whether an existing established custodial
environment would be altered by the proposed parenting time modification. Such a finding was
necessary, as it affected the degree of proper cause or change of circumstances necessary to
modify the prior parenting time order as well as the burden of proof applicable to the best-
interest determination. Id. at 23, 26-29. “Where a trial court fails to make a finding regarding
the existence of a custodial environment, this Court will remand for a finding unless there is
sufficient information in the record for this Court to make its own determination of this issue by
de novo review.” Jack v Jack, 239 Mich. App. 668, 670; 610 NW2d 231 (2000) (quotation marks
and citation omitted). There is sufficient information in the record for us to conclude that EB
had an established custodial environment with plaintiff.
Pursuant to MCL 722.27(1)(c),
[t]he 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.
Stated differently,
6
MCL 722.27a was amended, effective August 1, 2016. 2016 PA 96. All citations to the statute
in this opinion are to the statute’s prior codification, which was in effect during the proceedings
concerning the parenting time modification.
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[a]n established custodial environment is one of significant duration in which a
parent provides care, discipline, love, guidance, and attention that is appropriate
to the age and individual needs of the child. It is both a physical and a
psychological environment that fosters a relationship between custodian and child
and is marked by security, stability, and permanence. [Berger v Berger, 277 Mich
App 700, 706; 747 NW2d 336 (2008).]
In this case, EB resided with both parties in Delaware for the first 14 months of her life,
but she and plaintiff subsequently moved to Michigan in November 2013 with defendant’s
consent. The limited testimony concerning defendant’s involvement with EB before she and
plaintiff relocated to Michigan was largely negative. It indicated that defendant had minimal
interaction with EB and that he indirectly threatened her during a drunken outburst on at least
one occasion. Between November 2013 and April 2014, defendant only had sporadic contact
with EB via FaceTime, and he did not attempt to visit her until shortly after this action was filed.
Even after he began exercising parenting time on a more frequent basis, the visits were limited in
duration. On the other hand, after November 2013, plaintiff resided with EB and was solely
responsible for EB’s upbringing, although plaintiff received considerable assistance from EB’s
maternal grandparents. Plaintiff testified regarding her close relationship with EB, their favorite
activities together, and plaintiff’s efforts to encourage EB’s development by enrolling her in
swim classes and a daycare program with an educational curriculum. Given EB’s young age and
consistent contact with plaintiff, it is overwhelmingly apparent that her established custodial
environment was with plaintiff.
Parenting time modifications do not necessarily result in a change in the established
custodial environment, Rains v Rains, 301 Mich. App. 313, 340; 836 NW2d 709 (2013), and
despite plaintiff’s claims, the proposed modification in this case was unlikely to affect the
established custodial environment, cf. id. at 341 (finding that a parenting time modification
which gave the plaintiff 2¼ fewer overnights each month was not likely to change whom the
child naturally looked to for guidance, discipline, the necessities of life, and parental comfort).
Rather, it is clear that the modification in this case only amounted to “a change in the duration or
frequency of parenting time[.]” Kaeb v Kaeb, 309 Mich. App. 556, 570; 873 NW2d 319 (2015).
Although defendant gained bimonthly out-of-state parenting time, he only gained, numerically
speaking, an additional three days of parenting time every other month. Likewise, the alternating
parenting time schedule still included extended gaps between defendant’s bimonthly out-of-state
parenting time, which lasts for a five-day period, and his bimonthly in-state parenting time,
which lasts for one weekend. As a result, EB continued to spend the vast majority of her time in
plaintiff’s care under the modified parenting time schedule, and the schedule did nothing to limit
EB’s contact with plaintiff through remote methods while in defendant’s care.
Thus, because there is no indication that the modified parenting time schedule will
change EB’s established custodial environment, the threshold inquiry—i.e., whether defendant
demonstrated proper cause or a sufficient change of circumstances—is more expansive than the
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threshold required for a change in custody. Shade, 291 Mich. App. at 27-28.7 “[T]he very normal
life change factors that [would be] insufficient to justify a change in custodial environment are
precisely the types of considerations that trial courts should take into account in making
determinations regarding modification of parenting time.” Id. at 30. Plaintiff contends that the
trial court erroneously relied on the referee’s findings, including his determination that
defendant’s marriage to Krenicky and the birth of EB’s half-brother were sufficient reasons to
consider modification of the parenting time arrangement, because these events did not constitute
proper cause or a sufficient change in circumstances. However, because the modified parenting
time schedule will not change EB’s established custodial environment, these normal life changes
may constitute sufficient grounds for a parenting time modification. See id. at 30-31. The trial
court did not abuse its discretion in concluding that these circumstances justified modification of
defendant’s parenting time. See MCL 722.27(a).
2. BEST INTERESTS OF THE CHILD
Lastly, plaintiff challenges the trial court’s finding that modification of defendant’s
parenting time was in the best interests of the child. See Shade, 291 Mich. App. at 31, citing MCL
722.27a(1). Where, as here, the proposed change will not alter the child’s established custodial
environment, the party requesting the modification must demonstrate by a preponderance of the
evidence that the proposed parenting time schedule is in the best interests of the child. Shade,
291 Mich. App. at 23, 30-31.
“Both the statutory best interest factors in the Child Custody Act, MCL 722.23, and the
factors listed in the parenting time statute, MCL 722.27a(6),[8] are relevant to parenting time
decisions.” Shade, 291 Mich. App. at 31. However, contrary to plaintiff’s claims on appeal, the
trial court was not required to address the best-interest factors under MCL 722.23 if the parenting
time modification did not result in a change of custody. Id. at 32. Likewise, although a trial
court is required to make findings with regard to all of the best-interest factors when it makes a
custody decision, it is only required to make findings on the contested issues when it makes a
parenting time decision. Id. at 31-32. But, in the absence of a dispute, a trial court’s failure to
address the parenting-time factors under MCL 722.27a(6) does not warrant reversal when it is
7
Given this conclusion, we reject plaintiff’s reliance on Vodvarka v Grasmeyer, 259 Mich. App.
499; 675 NW2d 847 (2003), for the applicable standard in her brief on appeal. As we explained
in Shade, 291 Mich. App. at 25-27,
the definitions of “proper cause” and “change of circumstances” from Vodvarka
do not control the facts of this case because this case involves a modification of
parenting time rather than a change in custody. . . . If a change in parenting time
results in a change in the established custodial environment, then the Vodvarka
framework is appropriate. [Emphasis added.]
8
MCL 722.27a was amended by 2016 PA 96, effective August 1, 2016. The parenting-time
factors are now listed under subsection (7), but the factors themselves are unchanged. The other
amendments to the statute are not relevant to the instant case.
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“clear from the trial court’s statements on the record that the trial court was considering the
minor child’s best interests in modifying [a party’s] parenting time.” Id. at 32.
After the evidentiary hearing, the referee concluded that the out-of-state parenting time
would be in EB’s best interest, and the court adopted the referee’s recommendation and proposed
opinion with minimal alterations that are inconsequential to this issue. In support of his
conclusion, the referee articulated limited findings with regard to best-interest factors (a), (b),
(e), (j), and (l) under MCL 722.23 and parenting-time factor (e) under MCL 722.27a(6), all of
which supported his decision to grant out-of-state parenting time to defendant every other month.
Our review of the record confirms that these findings were well-supported by the evidence.
On appeal, however, plaintiff raises the following claim with regard to the trial court’s
best-interest determination: “[Defendant’s] history of domestic violence and causal [sic] drug
use should have been given greater weight under subsections MCL 722.23(f), (g), and (k) and,
likewise, MCL 722.23(e)[9] was not given proper deference.” Although plaintiff frames her
argument in terms of the weight or deference that was attributed to the aforementioned factors, it
is apparent that neither the referee nor the trial court made explicit findings with regard to several
of the best-interest and parenting-time factors contested by the parties.10 The trial court’s failure
to do so constitutes clear legal error. See Shade, 291 Mich. App. at 31-32; Pickering, 268 Mich
App at 5.
It is most evident from the record that best-interest factor (k) (“[d]omestic violence,
regardless of whether the violence was directed against or witnessed by the child”) was
specifically contested by the parties,11 as defendant’s previous acts of domestic violence and
their potential effect on the child were vigorously disputed. See MCL 722.23(k). Plaintiff and
plaintiff’s father testified regarding multiple prior instances of domestic violence perpetrated by
defendant against plaintiff and defendant’s former girlfriend. Krenicky, however, testified that
she was aware of the allegations made against defendant, but she stated that had no concerns
about domestic violence in her household and implied that the past incidents were nothing more
than unsubstantiated allegations. The disputed evidence demonstrates that best-interest factor (k)
was a contested issue as to which the court should have articulated a finding before modifying
the previous parenting time arrangement. Although the referee’s recommendation briefly
mentions that “[i]n addition to betraing [sic] the parties’ marriage, the [d]efendant has physically
9
Plaintiff provides no further argument with regard to best-interest factor (e). See MCL
722.23(e). Thus, we deem any argument related to this factor abandoned. See VanderWerp v
Plainfield Charter Twp, 278 Mich. App. 624, 633; 752 NW2d 479 (2008).
10
Again, although the trial court was not necessarily required to consider the best interest factors
under MCL 722.23 in rendering its parenting time decision, Shade, 291 Mich. App. at 32, the
referee expressly considered multiple factors under that statute, and the trial court adopted the
referee’s best-interest recommendation.
11
It appears that the parties’ dispute on this issue also may have implicated parenting-time
factors (d) (“[t]he reasonable likelihood of abuse of a parent resulting from the exercise of
parenting time.”) and (i) (“[a]ny other relevant factors.”). See MCL 722.27a(6)(d), (i).
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assaulted the [p]laintiff and allegedly thrown her out of a car,” this brief statement does not
constitute a finding with regard to defendant’s domestic violence as it relates to the child’s best
interests.
Additionally, the record indicates that the parties contested issues implicating best-
interest factor (f), which “relates to a person’s fitness as a parent.” Fletcher v Fletcher, 447
Mich. 871, 886-887; 526 NW2d 889 (1994) (emphasis in original); see also MCL 722.23(f).
Notably, “questionable conduct is relevant to factor f only if it is a type of conduct that
necessarily has a significant influence on how one will function as a parent.” Fletcher, 447 Mich.
at 887. “[V]erbal abuse, drinking problems, driving record, physical or sexual abuse of children,
and other illegal or offensive behaviors,” as well as other things, may be relevant to factor (f).
Id. at 887 n 6. The parties expressly contested whether defendant abuses marijuana and alcohol
and whether he uses these substances in the presence of children. Defendant admitted occasional
marijuana use, but he and Krenicky denied that he has any ongoing issues with drugs or alcohol.
Plaintiff provided contradictory testimony, describing one instance when defendant “spent the
whole day drinking,” went to bed drunk, and subsequently “started screaming at [EB]” when she
began to cry during the night, “saying [that] he was going to throw her in the garage if she did
not shut up.” Plaintiff testified that defendant then threatened to “beat [plaintiff’s] a--” when she
“started crying and asking him to stop yelling at her.” According to plaintiff, defendant
continued to “berat[e]” her and scream at her until the police arrived. This instance, in
conjunction with other incidents recounted my plaintiff, may reveal a potential for alcohol abuse
and verbal abuse affecting defendant’s functionality as a parent depending on the trial court’s
credibility determinations. Defendant’s prior criminal record was also at issue. Nevertheless,
neither the referee nor the trial court made a finding with regard to this contested factor or,
relatedly, parenting time factors (c) (“[t]he reasonable likelihood of abuse or neglect of the child
during parenting time”) and (d) (“[t]he reasonable likelihood of abuse of a parent resulting from
the exercise of parenting time”). See MCL 722.27a(6)(c), (d).
Thus, under these circumstances, the trial court committed clear legal error when it failed
to make findings on plainly disputed issues. See Shade, 291 Mich. App. at 31-32; Pickering, 268
Mich. App. at 5. The appropriate remedy is to vacate the trial court’s parenting time award and
remand the case for reevaluation. See Harvey v Harvey, 257 Mich. App. 278, 292; 668 NW2d
187 (2003). On remand, the trial court should reevaluate the contested factors and determine
whether, in light of those factors, the modified parenting time schedule remains in EB’s best
interest. Likewise, because the best interests of a child are always evolving, the court “ ‘should
consider up-to-date information’ and ‘any other changes in circumstances arising since the trial
court’s original custody order.” ’ Kessler v Kessler, 295 Mich. App. 54, 62-63; 811 NW2d 39
(2011) (quotation marks and citation omitted).
Prior to remand, however, we find it necessary to note that we reject the rest of plaintiff’s
claims on appeal. Plaintiff contends that the court failed to recognize that the extensive travel
between Michigan and Pennsylvania is unduly burdensome in light of EB’s young age and
potentially hazardous in light of the states’ harsh winters. However, the referee’s
recommendation includes a specific finding under MCL 722.27a(6)(e), which addresses the
inconvenience or burden that the proposed travel will have on the child. In particular, the referee
reasoned that defendant’s out-of-state parenting time should be limited to five days every other
month because “the length of the drive is arduous, and it is not in the best interests of the minor
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child to spend 20 hours in a car each month going back and forth from Michigan to
Pennsylvania.” The referee’s estimation that round-trip travel would be approximately 20 hours
is supported by the defendant’s testimony and undisputed by plaintiff. The parties discussed the
FOC’s standard long-distance parenting time recommendation on the record, noting that it
suggests five-day visits on a monthly basis. Thus, the referee’s decision to reduce the frequency
of the visits demonstrates that he took the burden of the required travel into consideration.
Moreover, given the considerable testimony from the parties, as well as the neutral KIND
employees, indicating that it would be in EB’s best interest to have a strong relationship with
defendant, her stepmother, and her half-brother, the referee’s determination that the benefits of
the parenting time modification outweighed the burden of the travel was not against the great
weight of the evidence.
Plaintiff also argues on appeal that the court erroneously applied the best-interest factors
because it gave inadequate weight to defendant’s failure to take advantage of numerous
parenting time opportunities. Defendant’s failure to attend parenting time with EB was relevant
to parenting-time factors (f) (“[w]hether a parent can reasonably be expected to exercise
parenting time in accordance with the court order”) and (g) (“[w]hether a parent has frequently
failed to exercise reasonable parenting time”) under MCL 722.27a(6). Although neither the
referee nor the trial court cited these factors, the referee’s factual findings, which were adopted
by the trial court, include numerous references to defendant’s failure to attend multiple visits.
Thus, it is clear that the referee’s recommendation does, in effect, include findings on these
contested factors. Additionally, the referee’s findings plainly conclude that defendant’s failures
resulted from plaintiff’s efforts to limit his time with the child. Likewise, it is apparent that the
referee did not believe that defendant’s failure to take advantage of parenting time opportunities
weighed against a finding that modification of the parenting time schedule was in the child’s best
interests. To the contrary, he specifically concluded, with regard to best-interest factor (j), that
granting out-of-state parenting time would “minimize [p]laintiff’s opportunities to interfere with
the [d]efendant’s parenting time.” Given the conflicting evidence in the record, it is clear that
the referee’s conclusions were dependent on its credibility determinations. “Special deference is
given to the trial court’s findings when they are based on the credibility of the witnesses.”
Woodington v Shokoohi, 288 Mich. App. 352, 355; 792 NW2d 63 (2010). On this record, these
findings were not against the great weight of the evidence.
IV. CONCLUSION
Because the trial court committed clear legal error by failing to make findings concerning
several disputed issues, we vacate the trial court’s parenting time modification and remand this
case for reconsideration of the contested best-interest and parenting-time factors. The rest of
plaintiff’s claims on appeal do not warrant relief.
Vacated in part and remanded for proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Stephen L. Borrello
/s/ Jane E. Markey
/s/ Michael J. Riordan
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