Sarah R Kwek v. Michael L Kwek ( 2019 )

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
SARAH R. KWEK, also known as SARAH R. UNPUBLISHED
CLEVENGER, February 5, 2019
Plaintiff-Appellee,
v No. 343934
Livingston Circuit Court
MICHAEL L. KWEK, LC No. 15-049633-DM
Defendant-Appellant.
Before: CAMERON, P.J., and BECKERING and RONAYNE KRAUSE, JJ.
PER CURIAM.
Defendant-father appeals an order denying his requests to modify a parenting time
schedule and to remove a right-of-first-refusal parenting time provision from the parties’
judgment of divorce. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In July 2015, a consent judgment of divorce was entered granting defendant and plaintiff
joint legal custody and “joint physical care, custody, and control” of their minor child, who at the
time was about to start kindergarten. The judgment set forth a two-week parenting time
schedule. For week one, defendant had the child on “[a]lternating Tuesdays at 9:00 a.m. until
Thursday at 4:30 p.m. (during summer/if school is not in session). During the school year,
[defendant] will deliver [the child] to school on Thursday morning and [plaintiff] will pick up
[the child] from school on Thursdays.” For week two, defendant would have “alternating
Tuesdays at 9:00 a.m. until 8:00 p.m.; and alternating weekends from Fridays from 9:00 a.m.
until Sunday at 8:00 p.m.” Plaintiff received “all other parenting time.” Holidays were
alternated, and each year they were rotated. Christmas break and spring break were to be divided
equally, and each parent was to receive two non-consecutive and uninterrupted weeks in the
summer. Both parties are nurses who work 8 to 12-hour shifts, and the divorce judgment
included a right-of-first-refusal provision (the “RFR”),1 which stated:
Each party shall have the right of first refusal if they are going to be away from
the minor child overnight OR for a twelve (12) hour work shift. If they will be
away because of either of these, that parent must notify the other parent to offer
them the first right of refusal for overnight parenting time. This is not available
during holiday and school break parenting time.
In July 2017, plaintiff filed a motion seeking various forms of relief. Relevant to this
appeal, she alleged that defendant had violated the RFR by working overnight shifts during his
parenting time with the child without offering her the RFR, and she requested “make-up
parenting time” days. Defendant subsequently filed a motion in September 2017 to modify
parenting time so that he had parenting time, including overnights, every Tuesday, Thursday, and
Saturday. He alleged that, approximately one year after entry of the divorce judgment, the child
began having overnight visits with him on plaintiff’s Tuesday nights due to plaintiff’s work
schedule, which resulted in his having overnight parenting time every Tuesday. However,
plaintiff stopped these overnights after she filed her July 2017 motion. Defendant asserted that
the child had grown accustomed to having parenting time with him every Tuesday night, and that
this warranted revisiting the parenting time schedule. Additionally, defendant asked the court to
remove the RFR condition, alleging that plaintiff was using it to harass him and that it was
disruptive to the child’s environment. According to defendant, plaintiff had violated HIPAA2
privacy laws in an attempt to learn defendant’s work schedule, motivated by her belief that
defendant had been violating the RFR.
A referee conducted an evidentiary hearing, subsequent to which the referee
recommended that the trial court deny both of defendant’s requests.3 Regarding defendant’s
motion to modify parenting time, the referee observed that defendant currently had 116
overnights per year, but sought 182.5 overnights. The referee determined that such a substantial
increase in defendant’s overnights and corresponding decrease in plaintiff’s overnights would
change the established custodial environment. Accordingly, the referee considered defendant’s
request as a motion to modify custody rather than parenting time and deemed it subject to
analysis under Vodvarka v Grasmeyer, 259 Mich. App. 499; 675 NW2d 847 (2003). The referee
concluded that defendant had not shown the proper cause or a change in circumstances Vodvarka
required to warrant revisiting a custody order. The referee further opined that even if she had
1
“RFR” will signify both the right-of-first-refusal provision and the phrase, “right of first
refusal.”
2
The Health Insurance Portability and Accountability Act, 29 USC 1181 et seq.
3
The referee also heard evidence on defendant’s alleged violation of the RFR. The referee
found that defendant had in fact violated the RFR on numerous occasions and recommended
granting plaintiff’s motion for make-up parenting time. The trial court adopted the referee’s
recommendation. Defendant does not raise this issue on appeal, and we address it only to
provide background and context for the arguments raised.
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considered defendant’s motion under the lesser standard set forth in Shade v Wright, 291 Mich
App 17; 805 NW2d 1 (2010), for analysis of a motion to modify parenting time, defendant still
had not shown proper cause or a change in circumstances. The referee concluded that
defendant’s bases for seeking modification—that defendant had obtained extra parenting time on
Tuesday nights resulting from plaintiff’s offering and his exercise of the RFR, that the child was
older, and that communication between the parties had diminished after plaintiff filed her July
2017 motion—did not establish proper cause or a change of circumstances under either Shade or
Vodvarka. For this reason, the referee recommended that the trial court deny defendant’s request
to modify parenting time. The referee likewise recommended denial of defendant’s request to
eliminate the RFR because defendant failed to show that it was unworkable.
Defendant objected to the referee’s recommendation. At a hearing on his objections
before the trial court, defendant stated that he had new evidence that had been unavailable at the
time of the evidentiary hearing. The trial court permitted defendant to return to the referee and
supplement the record with newly obtained evidence, which, as it turned out, related to
defendant’s alleged violations of the RFR. After the supplementary hearing, the referee’s
recommendation remained unchanged. Defendant objected again and, subsequent to another
hearing before the trial court, the court issued an order expressly adopting the referee’s
recommendations and denying defendant’s requests to modify parenting time and to remove the
RFR.
II. ANALYSIS
A. STANDARD OF REVIEW
We affirm parenting time orders 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.” Shade, 291 Mich. App. at 20-21 (quotation marks and
citation omitted). Under the great weight of the evidence standard, we will not substitute our
judgment on questions of fact “unless the facts clearly preponderate in the opposite direction.”
Id. at 21. “An abuse of discretion exists when the trial court’s decision is so palpably and grossly
violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the
exercise of passion or bias.” Id. (quotation marks and citation omitted). “Clear legal error
occurs when the trial court errs in its choice, interpretation, or application of the existing law.”
Id. (quotation marks and citation omitted).
B. MODIFICATION OF PARENTING TIME
Defendant first asserts that the trial court erroneously treated his motion to modify
parenting time as a motion to change custody and analyzed it under Vodvarka’s stricter standard
for establishing proper cause or a change in circumstances. He contends that the court should
have employed the lesser standard set forth in Shade and that under Shade’s standard, he
established proper cause or a change of circumstances.
Ordinarily, when a party seeks a change in custody, the party must first show by a
preponderance of the evidence that either proper cause or a change of circumstances has
occurred to warrant the change. Vodvarka, 259 Mich. App. at 508-509; MCL 722.21(1)(c).
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Vodvarka, 259 Mich. App. at 509-514, addresses the standards for showing proper cause or a
change in circumstances relative to a request to modify custody, while Shade, 291 Mich. App. at
28-30, addresses the standards for showing proper cause or a change in circumstances relative to
a request to modify parenting time.
To establish proper cause under Vodvarka, the movant “must prove by a preponderance
of the evidence the existence of an appropriate ground for legal action to be taken by the trial
court.” Vodvarka, 259 Mich. App. at 512. The ground should be relevant to at least one of the
statutory best-interest factors and of such magnitude as “to have a significant effect on the
child’s well-being.” Id. To establish a change in circumstances under Vodvarka, the movant
“must prove that, since entry of the last custody order, the conditions surrounding custody of the
child, which have or could have a significant effect on the child's well-being, have materially
changed.” Id. at 513-514. “[T]he evidence must demonstrate something more than the normal
life changes (both good and bad) that occur during the life of a child . . . .” Id. at 514. Under
Shade, however, normal life changes can constitute proper cause or a change in circumstances
sufficient to warrant revisiting a parenting-time order. Shade, 291 Mich. App. at 30.
Nevertheless, “[i]f a change in parenting time results in a change in an established custodial
environment, then the Vodvarka framework is appropriate.” Id. at 27. “The established
custodial environment is the environment in which ‘over an appreciable time the child naturally
looks to the custodian in that environment for guidance, discipline, the necessities of life, and
parental comfort.’” Pierron v Pierron, 486 Mich. 81, 85-86; 782 NW2d 480 (2010), quoting
MCL 722.27(1)(c).
Defendant contends on appeal that he met Shade’s requirements for proper cause or
changed circumstances by showing that the minor child is growing up, is engaged in
extracurricular activities, and spent overnights with him on most Tuesdays for nearly nine
months due to plaintiff’s work schedule. Defendant suggests that modification of the parenting-
time schedule is in the best interest of the child because the child loves him and experiences
stability with him, and because the proposed modifications will result in less “back and forth” for
the child. We disagree. 4
First, the fact that plaintiff offered defendant the RFR for numerous Tuesday overnights
over the course of approximately nine months does not support defendant’s position that a
change of circumstances or proper cause has arisen. The referee concluded that it would be
improper to hold plaintiff’s compliance with a valid provision in the judgment of the divorce
4
The referee opined that the sheer extent of defendant’s requested modifications to parenting
time would impact the child’s established custodial environment, and thus, she analyzed
defendant’s request under Vodvarka. Defendant contends that in this joint custody situation,
both parties had an established custodial environment, and thus, the proposed change would not
affect the child’s established custodial environment with both parents. Given that the referee
also analyzed defendant’s request using the Shade framework, and because defendant has failed
to meet the easier Shade standard under the circumstances, we need not weigh in on whether the
higher standard applies to defendant’s requested modification.
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against her in an action to modify parenting time; to hold otherwise would penalize plaintiff, and
other parents, for following the provisions of a judgment of divorce, and it would generally
discourage parents from permitting any additional parenting time to the other parent outside the
court’s orders. We similarly conclude that following the RFR under the circumstances presented
did not constitute a change of circumstances or proper cause under Shade, it merely maintained
the status quo effectuated by the consent judgment of divorce.
Next, the child’s “growing up” in this instance meant progressing from kindergarten to
second grade. Her extracurricular activities entailed enrolling in swimming and gymnastics
classes; defendant’s complaint was that he wanted to attend the classes, not that parenting time
was now interfering with the child’s ability to participate in certain activities. In Shade, the
parties lived in different states, which required extensive travel to accommodate the exercise of
parenting time. Shade, 291 Mich. App. at 31. This Court held that normal life changes were
sufficient to support a modification of parenting time because the existing schedule and distance
between the parents’ homes prohibited the high-school-aged child from her desired engagement
in social and extracurricular activities. Id. Of note, the Court held that “we do not seek to
precisely define the proper cause or change of circumstances necessary to change parenting time.
Our holding is limited to our conclusion that the normal life changes that occurred with the
minor child in this case are sufficient to modify parenting time.” Id. at 31. Analogous factors
are missing from the present case. Here, there has been no discernible change in circumstances,
other than minor progressions in a grade-school-aged child. There is no evidence that the
existing parenting-time schedule to which defendant agreed at the time of his divorce is no
longer in the best interests of the child or has in any way affected defendant’s strong relationship
with the child. See MCL 722.27a(1). Thus, because proper cause or a change of circumstances
is not precisely defined in a parenting-time situation, and because the changes in the child’s age
and activities in this instance are so minor, we conclude that the trial court’s finding that
defendant failed to meet the Shade standard was not against the great weight of the evidence.
Shade, 291 Mich. at 20-21.
Finally, to the extent defendant implies that plaintiff’s working nights provides proper
cause for a change in parenting time, we observe that defendant also works nights. The record
indicates that both parties seem to manage their work schedules incredibly well. Despite
inconsistent scheduling, each party is able to request what hours they would like to work and, in
instances where their shifts fall onto parenting time days, arrange for appropriate substitute
childcare. For all of these reasons, we conclude that defendant has not met his burden under
Shade to prove proper cause or a change in circumstances sufficient to modify parenting time
and the trial court did not err by denying his motion.
C. REMOVAL OF THE RIGHT OF FIRST REFUSAL
Defendant next asserts that the trial court erred in denying his request to modify the
divorce judgment to remove the RFR. He contends that plaintiff has used the RFR to harass him,
that its existence has caused a breakdown in the parties’ communication and ability to co-parent,
and that the cost of litigating the RFR has risen to the level that the RFR is no longer in the
child’s interests. We disagree.
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To change an existing condition on the exercise of parenting time, the moving party
“must demonstrate proper cause or a change of circumstances that would justify a trial court’s
determination that the condition in its current form no longer serves the child’s best interests.”
Kaeb v Kaeb, 309 Mich. App. 556, 571-572; 873 NW2d 319 (2015). The standards espoused in
Vodvarka and Shade do not apply. Id. at 570. Rather, “a lesser, more flexible, understanding of
‘proper cause’ or ‘change in circumstances’ should apply to a request to modify or amend a
condition on parenting time.” Id. at 570-571. Under this standard, “even normal changes to the
lives of the parties affected by a parenting-time order may so alter the circumstances attending
the initial imposition of a condition that a trial court would be justified in revisiting the propriety
of the condition.” Id. at 571. In contrast to the Vodvarka standard, in this context “ ‘proper
cause’ should be construed according to its ordinary understanding when applied to a request to
change a condition on parenting time; that is, a party establishes proper cause to revisit the
condition if he or she demonstrates that there is an appropriate ground for taking legal action.”
Id.
From our review of the record, it appears that the mere existence of the RFR is not
necessarily a source of contention. The source of contention appears to be plaintiff’s attempt to
enforce defendant’s compliance with the provision. Defendant testified that communication
between him and plaintiff had been “great” for the first two years after entry of the judgment of
divorce. The record shows that, because of her work schedule, plaintiff offered, and defendant
exercised, the RFR on Tuesday nights for nearly nine months in 2017. Thus, the RFR appears to
have worked as intended, namely, to ensure that if one of the parents is away from the child
either overnight or for an extended period of time, e.g., a 12-hour work shift, the child will still
receive childcare from a parent.5
According to defendant, the parties’ communications soured after plaintiff filed her July
2017 motion, a motion based in part on her belief that defendant was not complying with the
RFR.6 As it turned out, the referee concluded that she was correct. The referee found that
defendant had violated the RFR on numerous occasions, and defendant does not dispute this
finding on appeal. Nevertheless, defendant testified that even after plaintiff filed her motion,
which caused him “confusion” as to why she was involving the court system in the issue, the
5
The only extent to which it appears not to have worked is in defendant’s decisions not to honor
the RFR in circumstances when he was required to offer overnights to plaintiff.
6
Defendant’s claim of harassment by plaintiff relates to her efforts to obtain his work schedule
in order to determine whether he was complying with the RFR. One of the measures to which
plaintiff resorted was looking at patient records to determine whether defendant was at work on a
treatment team when he was supposed to be exercising parenting time. In so doing, plaintiff
violated HIPAA privacy laws, which violation plaintiff acknowledged and for which she was
disciplined. Defendant contends that plaintiff’s violation provides another reason for eliminating
the RFR. Violating federal privacy laws and risking the loss of her employment was certainly
not in the minor child’s best interests. Plaintiff’s conduct was illegal, and we in no way condone
it. We point out, however, that her actions did not taint the RFR or its purpose in serving the
child’s best interests.
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parties were still able to exchange the child without issue and to adequately communicate to each
other essential information about the child. Thus, defendant failed to show that any
diminishment in the parties’ communication quality and ability to co-parent outweighed the
provision’s benefit to the child or necessitated the court’s intervention. See Kaeb, 309 Mich. App.
at 571-572.
Defendant’s third reason for seeking to remove the RFR from the divorce judgement
relates to the associated expenses incurred due to litigation over enforcement of the RFR. Doing
away with the provision would indeed do away with related litigation costs, but so would
compliance with the provision, and compliance would maintain the RFR’s intended benefits to
the child. In short, defendant has not “demonstrate[d] proper cause or a change of circumstances
that would justify a trial court’s determination that the [RFR] condition in its current form no
longer serves the child’s best interests.”7 Kaeb, 309 Mich. App. at 571-572.
Affirmed.
/s/ Thomas C. Cameron
/s/ Jane M. Beckering
/s/ Amy Ronayne Krause
7
The trial court did revise the RFR by ordering that a “parent offered the right of first refusal
may not accept if that parent is working or will otherwise be away during the period offered.”
Defendant does not challenge this revision.
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