Nichole Eileen Hanshue v. Wayne Kenneth Hanshue ( 2020 )

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
NICHOLE EILEEN HANSHUE, UNPUBLISHED
August 27, 2020
Plaintiff-Appellant,
v No. 350658
Montcalm Circuit Court
WAYNE KENNETH HANSHUE, also known as LC No. 2016-021249-DM
WADE HANSUE and WADE KEITH HANSHUE,
Defendant-Appellee.
Before: BORRELLO, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
Plaintiff, Nichole Eileen Hanshue, appeals by leave granted the trial court’s order denying
her request to change the school placement for the parties’ minor child. We reverse the trial court’s
order and remand for further proceedings.
The parties divorced in 2017 during the child’s second-grade school year. The trial court
awarded the parties joint legal and physical custody of the child. The child had academic
difficulties and tested below grade level in reading and language arts beginning in his kindergarten
year. The child also received counseling for generalized anxiety and adjustment disorder, and he
was diagnosed with attention-deficit hyperactivity disorder (ADHD). Plaintiff filed a motion to
change the child’s school placement from Montabella public schools to either Rockford public
schools or Greenville public schools. Plaintiff argued that it was in the child’s best interests to
attend those schools, rather than Montabella, on the basis of the academic performance of those
schools and the resources and interventions that were available to meet the child’s needs.
Defendant opposed changing the child’s school placement and believed that the risk to the child’s
mental health as a result of the change of schools did not outweigh the potential opportunities and
advantages of changing schools.
After a hearing, the referee denied plaintiff’s motion to change schools. Plaintiff filed an
objection to the referee’s recommendation and order and requested a de novo hearing before the
trial court. At the conclusion of the de novo hearing, the trial court denied plaintiff’s request to
change the child’s school placement. However, the trial court ruled that either party could move
-1-
to change the child’s school placement after the child’s upcoming (fourth-grade) 2018-2019 school
year. After the child’s fourth-grade school year, plaintiff refiled her objection to the referee’s
recommendation and order and requested a de novo hearing before the trial court. The trial court
held a hearing and determined that the child had an established custodial environment with both
parties and that changing the child’s school would not modify the established custodial
environments. The trial court ultimately, however, determined that changing schools was not in
the child’s best interests on the basis of the child’s emotional and mental health and the stability
and consistency of his school environment at Montabella. Plaintiff now appeals the trial court’s
order.
Plaintiff first argues that the trial court violated her due-process rights by failing to consider
evidence from the referee hearing. We disagree.
Generally, this Court reviews de novo constitutional issues. Kampf v Kampf, 237 Mich
App 377, 381; 603 NW2d 295 (1999). Additionally, “[w]hen an evidentiary question involves a
question of law, such as the interpretation of a statute or court rule, our review is de novo.” In re
Utrera, 281 Mich. App. 1, 15; 761 NW2d 253 (2008).
MCL 552.507 permits a de novo court hearing of any matter that was placed before a
referee. The statute provides, in relevant part:
(4) The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon motion
of the court. The request of a party shall be made within 21 days after the
recommendation of the referee is made available to that party.
(5) A hearing is de novo despite the court’s imposition of reasonable
restrictions and conditions to conserve the resources of the parties and the court if
the following conditions are met:
(a) The parties have been given a full opportunity to present and preserve
important evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are
afforded a new opportunity to offer the same evidence to the court as was presented
to the referee and to supplement that evidence with evidence that could not have
been presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited
to, the following:
(a) A new decision based entirely on the record of a previous hearing,
including any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de
novo hearing.
-2-
(c) A new decision based in part on the record of a referee hearing
supplemented by evidence that was not introduced at a previous hearing. [MCL
552.507.]
In addition, when a party objects to a referee’s findings and recommendations, the circuit court’s
review is guided by MCR 3.215(F), which provides, in relevant part:
(2) To the extent allowed by law, the court may conduct the judicial hearing
by review of the record of the referee hearing, but the court must allow the parties
to present live evidence at the judicial hearing. The court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which
no objection was filed;
(b) determine that the referee’s finding was conclusive as to a fact to which
no objection was filed;
(c) prohibit a party from introducing new evidence or calling new witnesses
unless there is an adequate showing that the evidence was not available at the
referee hearing;
(d) impose any other reasonable restrictions and conditions to conserve the
resources of the parties and the court.
In this case, the parties do not dispute that they were given a full opportunity to present and
preserve important evidence at the referee hearings. The lower court record supported that the
parties presented evidence during the referee hearings regarding the child’s academic performance
at Montabella from kindergarten to third grade, the child’s social development at Montabella, the
opportunities available at the Rockford and Greenville public schools, and the parties’ concerns
regarding changing the child’s school placement. Furthermore, the trial court gave the parties an
opportunity to offer the same evidence that was presented to the referee and to supplement that
evidence at the de novo hearing. There was no indication in the lower court record that the trial
court restricted the parties’ presentation of evidence during the de novo hearing. Therefore, the
trial court’s de novo review of the referee hearings complied with MCL 552.507(5).
The lower court record supported that the trial court considered evidence that the parties
presented during the de novo hearing and evidence from the referee hearings. For example, the
trial court addressed the parties’ history of co-parenting and facilitating a close relationship
between the child and the other parent, and the trial court indicated that it analyzed this best-interest
factor “in listening to the testimony previously and then here today.” Additionally, although the
trial court did not address the child’s academic performance during his fourth-grade school year,
the trial court addressed the child’s school situation and social development during that time. It
also weighed the child’s home environment in the Greenville area and the academic and sports
opportunities at the Greenville schools against the consistency and friendships that the child
developed at Montabella. The trial court did not plainly err in conducting the de novo hearing,
and plaintiff did not establish that the trial court violated her due-process rights. See Marik (On
Remand), 325 Mich. App. at 359.
-3-
Plaintiff next argues that the trial court committed reversible error by failing to interview
the minor child regarding his school preference. We agree.
Regarding this Court’s review of custody orders, all orders and judgments of the circuit
court must be affirmed on appeal unless the circuit court’s findings were against the great weight
of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court
made a clear legal error on a major issue. MCL 722.28. “A trial court commits clear legal error
when it incorrectly chooses, interprets, or applies the law.” Lieberman v Orr, 319 Mich. App. 68,
76-77; 900 NW2d 130 (2017) (quotation marks and citation omitted). In other words, a trial court
commits clear legal error if it fails to properly apply the law. Sulaica v Rometty, 308 Mich. App.
568, 583-584; 866 NW2d 838 (2014). A clear legal error “generally require[s] remand for further
consideration under the proper legal framework unless the error is harmless.” Id. at 585 (quotation
marks and citation omitted).
MCL 722.23(i) provides that the court must consider “[t]he reasonable preference of the
child, if the court considers the child to be of sufficient age to express preference” when
considering the best interests of a child in a child custody proceeding. “A child over the age of six
is presumed to be capable of forming a reasonable preference.” Maier v Maier, 311 Mich. App.
218, 224; 874 NW2d 725 (2015). This Court has found reversible error where the trial court failed
to take into consideration the reasonable preferences of children over the age of six. See Bowers
v Bowers, 190 Mich. App. 51, 55-56; 475 NW2d 394 (1991). When evaluating whether the child
formed a preference, the trial court considers whether the child is of sufficient age to form a
preference and whether the child’s capacity to give his or her preference is compromised by
infirmity, disability, or other circumstances. Maier, 311 Mich. App. at 225.
A trial court is not required to interview a child in order to make factual findings regarding
the child’s capacity to form a preference and the child’s preference. Id. at 225. The trial court
may determine a child’s capacity to form a preference and the child’s preference on the basis of
the trial court’s interview of the child, an interview of the child using an evidence-based protocol,
or information from a mental health professional. Id. In determining whether a child’s preference
is reasonable, the trial court may consider the child’s emotional state and whether there were efforts
to influence the child’s preference, such as coaching the child to express a certain preference or an
emotionally distressing situation that influenced the child. Id. at 225-226.
In this case, the child was 10 years old at the time of the de novo hearing and was thus
presumably old enough to form a reasonable preference. See id. at 224. Although there was
testimony that the child was diagnosed with adjustment disorder and ADHD, there was no
indication that his capacity to form a preference was compromised by infirmity, disability, or any
other circumstance. See id. Therefore, the child presumably had the capacity and was of sufficient
age to form a reasonable preference regarding his school placement. See id.
The trial court did not determine whether the child was of sufficient age and capacity to
form a preference. The trial court also did not interview the child regarding his preference. The
trial court did not discuss the referee’s findings or otherwise discuss the child’s interview with a
Friend of the Court deputy that occurred during the proceedings before the referee. Rather, the
trial court only considered the parties’ testimony during the de novo hearing that they believed the
child would express a preference to remain at Montabella. Additionally, the trial court did not
-4-
determine whether the child’s preference to remain at Montabella was reasonable or whether it
was influenced by a parent or outside factors. Although the trial court was not required to interview
the child, the trial court plainly erred by relying on the parties’ opinions of the child’s preference,
rather than determining whether the child had the capacity to form a preference, what school
placement the child preferred, and whether that preference was reasonable. See id. at 224-225.
“The right to have a reasonable preference considered attaches to the best interests of the
child, not to the rights of the contestants in the custody battle.” Id. at 224. The trial court
considered best-interest factor MCL 722.23(i) when it decided not to change the child’s school
placement, but this determination was based on a lack of proper analysis concerning the child’s
preference. This was error requiring reversal. See Bowers, 190 Mich. App. at 56.
Finally, plaintiff argues that the trial court erred in its analysis of the best-interest factors
and failed to consider several best-interest factors when it determined that it was not in the minor
child’s best interests to change schools. We agree with plaintiff regarding best-interest Factors (i),
(f), (g), and (k).
This Court reviews a trial court’s findings of fact in custody orders to determine whether
the findings were against the great weight of the evidence. Pierron v Pierron, 282 Mich. App. 222,
242; 765 NW2d 345 (2009). A trial court’s finding is against the great weight of the evidence if
the evidence clearly preponderates in the opposite direction. Id. “The abuse of discretion standard
applies to the circuit court’s discretionary rulings; A ruling concerning an important decision
affecting the welfare of a child is such a discretionary ruling.” Id. at 243 (internal citation omitted).
If a trial court fails to make a finding regarding the existence of a custodial environment, or the
best-interest factors set forth in MCL 722.23, this Court will generally remand to the trial court for
a new hearing. Rittershaus v Rittershaus, 273 Mich. App. 462, 471, 475-476; 730 NW2d 262
(2007).
When parents share joint legal custody of a child, but cannot agree on an important
decision, 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. “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.” Id. If the established custodial environment
remains the same, the moving party must prove by a preponderance of the evidence that the
proposed change is in the best interests of the child, using the 12 best-interest factors set forth in
MCL 722.23. Id. at 91. The trial court must make specific findings of fact regarding the
applicability of each factor. Id. If the trial court determines that a factor is irrelevant to the issue
before it, the trial court must state that conclusion on the record but need not make substantive
findings of fact regarding that factor. Pierron, 486 Mich. at 91, 93. The trial court need not
consider every piece of evidence when making its findings of fact, but the record must be sufficient
to facilitate appellate review. MacIntyre v MacIntyre (On Remand), 267 Mich. App. 449, 452; 705
NW2d 144 (2005).
MCL 722.23 provides:
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:
-5-
(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.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
In this case, the trial court found that the change in school would not affect the established
custodial environment. The trial court then found that factors (a), (b), (c), (e), (h), and (j) weighed
equally or neutrally regarding a change of the child’s school and that factors (d), (i), and (l)
weighed against changing the child’s school placement. Plaintiff challenges the trial court’s
application of the law and/or factual findings regarding factors (b), (c), (d), (f), (g), (h), (i), (k),
and (l).
Regarding best-interest factor (b), the trial court found that both parties had the capacity
and disposition to give the child love, affection, and guidance, and to continue the child’s education
-6-
and religion. The lower court record supported that the parties disagreed regarding the child’s
school placement, school performance, and social development. The parties were nonetheless
involved in the child’s education by attending meetings with representatives of Montabella,
providing the child with parental guidance, and providing him with tutoring and at-home reading
support. Both parties were involved in the child’s education and development, and there was no
evidence to suggest that either party lacked the capacity to provide the child with love, affection,
and guidance. The trial court had the opportunity to assess the credibility of the witnesses and
weighed the parties’ testimonies equally. It cannot be said that the evidence clearly preponderates
in the opposite direction of the trial court’s findings regarding this factor.
Regarding best-interest factor (c) (capacity of the parties to provide the child with
necessities and material needs), the trial court found that both parties were capable and disposed
to meet the child’s necessities and medical needs. The lower court record supported that the parties
were able to provide the child with food and clothing and that the parties took the child to various
medical appointments, including regularly scheduled wellness checks and counseling sessions.
There was no evidence to suggest that either party lacked the capacity to provide for the child’s
necessities and medical needs. The evidence presented during the evidentiary hearing supported
weighing this factor equally, and the evidence did not clearly preponderate in the opposite direction
of the trial court’s findings regarding this factor.
The trial court weighed best-interest factor (d) (the length of time that the child has lived
in a stable, satisfactory environment, and the desirability of maintaining continuity) in defendant’s
favor because defendant provided the child with a stable and consistent home and community in
the Montabella school system since his birth, whereas the child experienced changes when the
parties separated and divorced and when plaintiff moved to the Greenville school district. The
lower court record supported that the child’s home with defendant and school were stable.
Although the trial court did not find whether the school environment was satisfactory, the trial
court found that the child had an established community at Montabella. The trial court also
indirectly found that maintaining continuity was desirable in light of the changes to the child’s
family life, including the parties’ divorce and plaintiff’s relocation to a new neighborhood. The
trial court had the opportunity to assess the credibility of the witnesses and gave greater weight to
defendant’s testimony that consistency was important for the child. The trial court did not commit
clear legal error in its evaluation of this best-interest factor, and the evidence did not clearly
preponderate in the opposite direction of the trial court’s findings against changing the child’s
school placement.
Best-interest factor (f) refers to a person’s moral fitness as a parent. The trial court did not
make any factual findings regarding this factor. Although the parties testified regarding their
relationship with the child, their involvement in his educational development, and the child’s
academic performance, the trial court did not determine how the parent-child relationships affected
the child’s schooling. There was no evidence that the parties were not fit as parents. However,
there were not sufficient remarks by the trial court or support from the lower court record to discern
the trial court’s findings regarding best-interest factor (f), or whether the trial court deemed best-
interest factor (f) irrelevant, and to facilitate appellate review. Therefore, this error requires
reversal. See Rittershaus, 273 Mich. App. at 475-476.
-7-
The trial court also did not make any factual findings regarding best-interest factor (g) (the
parties’ mental and physical health). There was no evidence in the lower court record that either
party had a physical disability or a mental health diagnosis. There was also no evidence of a
physical or mental health condition that would affect either party’s ability to parent. However,
there were not sufficient remarks by the trial court or support from the lower court record to discern
the trial court’s findings regarding best-interest factor (g), or whether the trial court deemed best-
interest factor (g) irrelevant, and to facilitate appellate review. Therefore, this error requires
reversal. See Rittershaus, 273 Mich. App. at 475-476.
Regarding best-interest factor (h) (the child’s home, school, and community record), the
trial court found that Greenville schools provided greater academic and sports opportunities for
the child and that the child had friends within the Greenville school district. However, the trial
court also found that child attended Montabella since he began attending school, Montabella
provided consistency in the child’s community and environment, the child had friends through the
Montabella school system, and the parties were involved in the child’s schooling at Montabella.
Ultimately, the trial court weighed the benefits of each school option. Although the trial court did
not address the child’s academic performance during his fourth-grade school year, the trial court
addressed the child’s school situation at Montabella on the basis of his social developments during
that time and weighed the child’s home environment with plaintiff in the Greenville area and the
academic and sports opportunities at the Greenville schools with the consistency and friendships
that the child developed at Montabella. Best-interest factor (h) encompasses the home, school,
and community of the child. The trial court considered each of these aspects and ultimately found
that the opportunities at the Greenville public schools did not outweigh the consistency of the
child’s home, school, and community at Montabella. The trial court did not commit clear legal
error in its evaluation of this best-interest factor, and the evidence did not clearly preponderate in
the opposite direction of the trial court’s findings regarding this factor.
Regarding best-interest factor (i) (the child’s reasonable preference), the trial court did not
interview the child regarding his preference but found that the parties agreed that the child’s
preference was to remain at Montabella. The trial court considered the child’s preference in light
of the stability and consistency that Montabella provided and the significant changes that the child
experienced regarding the parties’ divorce and new relationships. As previously discussed, the
trial court clearly erred by relying on the parties’ opinion of the child’s preference, rather than
assessing the child’s capability to form a preference and the child’s actual stated preference.
Although the trial court’s findings regarding best-interest factor (i) were not against the great
weight of the evidence that was presented during the de novo hearing, the trial court’s clear legal
error regarding this factor requires remand. See Marik (On Remand), 325 Mich. App. at 359;
Bowers, 190 Mich. App. at 56.
Best-interest factor (k) addresses domestic violence. The trial court did not make any
factual findings regarding best-interest factor (k). There was no evidence in the lower court record
to support that there was an act of domestic violence between the parties or that the child observed
an act of domestic violence. However, there were not sufficient remarks by the trial court or
support from the lower court record to discern the trial court’s findings regarding best-interest
factor (k), or whether the trial court deemed best-interest factor (k) irrelevant, and to facilitate
appellate review. Therefore, this error requires reversal. See Rittershaus, 273 Mich. App. at 475-
476.
-8-
Regarding best-interest Factor (l), the trial court considered that defendant’s girlfriend’s
children attended Montabella with the child and that “there is some comfort in having your family
unit.” The trial court considered that changing schools would be a significant life event for the
child that could affect his mental health, particularly in light of his adjustment disorder. The trial
court found that, although the child was capable of adjusting to a different school, it was not in the
child’s best interests to change his school placement on the basis of the stability and consistency
of Montabella and the concerns for the child’s emotional and mental health. Although it was not
apparent from the record that the child relied on defendant’s girlfriend’s children as a family unit
and that the children socialized at school, the trial court’s finding that these peers could be a source
of comfort for the child was not against the great of the evidence. The parties provided extensive
testimony regarding the child’s mental health, adjustment disorder, and responses to family
changes. Plaintiff and the child’s counselor testified that the child’s emotional regulation
improved, he developed new friendships, and attending Greenville public schools with his new
friends could be beneficial for his social development. The trial court had the opportunity to assess
the credibility of the witnesses and gave greater weight to defendant’s testimony that consistency
was important for the child and that changing the child’s school placement could affect the child’s
emotional and mental health. The evidence did not clearly preponderate in the opposite direction
of the trial court’s findings regarding this factor.
In sum, the trial court’s findings, particularly that factors (a), (b), (c), (e), (h), and (j)
weighed equally or neutrally regarding a change of the child’s school and that factors (d) and (l)
weighed against changing the child’s school placement, were supported by the evidence on the
record. However, the trial court clearly erred in its evaluation of best-interest factor (i) and by
failing to consider best-interest factors (f), (g), and (k). The trial court’s clear legal errors regarding
best-interest factors (i), (f), (g), and (k) require remand. See Rittershaus, 273 Mich. App. at 475-
476.
Reversed and remanded for further consideration of the best-interest factors consistent with
this opinion. We do not retain jurisdiction.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Deborah A. Servitto
-9-