Tabetha Argel v. George Elliott Argel ( 2024 )

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
TABETHA ARGEL, also known as TABETHA UNPUBLISHED
CORDELL, August 15, 2024
Plaintiff/Counterdefendant-Appellee,
v No. 368398
Jackson Circuit Court
GEORGE ELLIOTT ARGEL, LC No. 16-001097-DM
Defendant/Counterplaintiff-Appellant.
Before: REDFORD, P.J., and GADOLA, C.J., and RIORDAN, J.
PER CURIAM.
In this custody dispute, defendant, George Argel, appeals by right the trial court’s order
denying his motion to change the custody of the parties’ minor daughter, AA. The trial court also
effectively denied defendant’s request to allow AA to attend school in Texas, which is where
defendant resides. On appeal, defendant argues that the trial court clearly erred in relation to its
findings on custody and schooling following an evidentiary hearing. He additionally contends that
the trial court erred when it adopted the child support calculations made by the Friend of the Court
(FOC) and when it awarded attorney fees to plaintiff. We hold that defendant’s claims of error
with respect to the trial court’s decision to deny his custody and school-change requests have been
rendered moot or were waived given entry of a stipulated custody order after this appeal was filed.
Additionally, we conclude that we do not have jurisdiction to consider defendant’s claim of error
involving the trial court’s decision to adopt the FOC’s child support calculations. Moreover, the
child support issue was, for the most part, rendered moot and waived in light of a stipulated support
order that was entered after this appeal was filed. Finally, we do agree with defendant that the trial
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court abused its discretion and otherwise erred when it ordered defendant to pay plaintiff’s attorney
fees under MCR 3.206(D). In sum, we dismiss and affirm in part and vacate in part.1
I. BASIC FACTS
This is defendant’s sixth appeal in this Court. For brevity’s sake, we decline to restate the
lengthy procedural history of this case.2 Instead, we address only those facts relevant to this
appeal.
Throughout this case, defendant has repeatedly sought to expand his parenting time with
AA in Texas. In February 2023, defendant asked the trial court to change the conditions of his
parenting time to the extent that some of his parenting time had to be exercised in Michigan. He
also requested a change of AA’s domicile from Michigan to Texas so that she could attend school
there. Plaintiff opposed the motion and argued that defendant was using the legal system to harass
her.
The trial court entered an order denying defendant’s motion to change parenting time,
domicile, and schools in April 2023. The court determined that defendant had only presented
evidence of normal life changes in support of his motion. The trial court explained that the factors
that defendant felt warranted a change—the birth of his new child and increased work
responsibilities—were not life changes that affected AA, but rather were changes that affected
defendant himself. The trial court also noted that the requested changes would result in more travel
time for AA. Given the cited evidence, the court determined that defendant had not identified a
basis for holding an evidentiary hearing on his motion even under the lower threshold for making
parenting-time changes.
In June 2023, defendant moved to change AA’s custody. Defendant argued that plaintiff
abruptly left her current husband and moved her children, including AA, into her parents’ home.
He alleged that plaintiff had withheld the children that she had with her current husband without
cause and that the husband had since filed for divorce. According to defendant, there was also a
fire at plaintiff’s parents’ home, which required plaintiff to move into a hotel for the time being.
Defendant maintained that plaintiff’s actions directed at her current husband and AA’s half siblings
amounted to psychological abuse. He argued that the described events were not normal life
changes and that they warranted revisiting custody. Defendant asked the trial court to hold an
evidentiary hearing, award him physical custody of the child, and change AA’s domicile so that
she could attend school in Texas.
Plaintiff responded and denied that AA had experienced any trauma. She agreed that she
had moved out of the marital home and accused defendant of colluding with her current husband.
1
To the extent that we reject defendant’s appeal on the basis of mootness or lack of jurisdiction,
dismissal rather than affirmance is the appropriate holding. See B P 7 v Bureau of State Lottery,
231 Mich App 356, 359; 586 NW2d 117 (1998) (an appeal should be dismissed when moot).
2
For a detailed recitation of the facts, see Argel v Argel, unpublished per curiam opinion of the
Court of Appeals, issued January 27, 2022 (Docket No. 357494).
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She also agreed that there had been a fire in the garage of her new home with her parents, but she
stated that it was quickly put out and that the insurance company asked the family to temporarily
move out to allow for smoke remediation. She denied that the events warranted an evidentiary
hearing, as they did not amount to proper cause or a change of circumstances.
The trial court held an initial hearing on defendant’s motion to change custody in
July 2023. After hearing the parties’ arguments, the trial court determined that defendant’s
allegations that the stability of AA’s home life had been adversely affected by recent events
implicated multiple best-interest factors. The trial court stated that its only hesitation arose from
the fact that defendant had repeatedly tried to change custody. Nevertheless, the trial court
reluctantly granted the motion for an evidentiary hearing. The court indicated that it would hear
the motion directly rather than assigning it to a referee.
The FOC conducted a child support review in June 2023. The caseworker noted that
defendant did not respond to a request for his income information. The caseworker imputed more
than $89,000 in annual income to defendant. The caseworker recommended entry of an order
compelling defendant to pay $768 a month in child support.
In August 2023, defendant objected to the proposed child support order. He noted that a
stipulated support order from October 2018 provided that his child-support obligation was zero.
Indeed, an FOC recommendation from August 2019 recommended reserving child support given
the costs that defendant paid to transport AA to and from Texas for parenting time. Additionally,
defendant denied that any caseworker contacted him, and he argued that the incomes assigned to
both parties were inaccurate.
The trial court held an evidentiary hearing on the custody dispute over two days in
September 2023. And the court entered its written opinion and order resolving the custody dispute
in October 2023. The trial court found that AA’s established custodial environment was solely
with plaintiff, and therefore defendant had the burden to establish by clear and convincing evidence
that a change in custody was in AA’s best interests. The court then analyzed the various best-
interest factors and determined that, given the totality of the factors, defendant had not met his
burden to prove that a change in physical custody was warranted by clear and convincing evidence.
Accordingly, the court denied his motion to change custody, which effectively precluded AA from
attending school in Texas.
The trial court next addressed defendant’s objections to the proposed child support order.
The court rejected defendant’s contention that the FOC had no authority to review child support
on its own initiative. The trial court also determined that defendant’s claim that he should not be
required to pay child support because he paid all of AA’s travel expenses was meritless. The court
explained that AA’s travel expenses were high because defendant made the choice to move to
Texas. The trial court noted that childcare expenses for AA were not reduced simply because
defendant elected to move to Texas. The court ruled that the payment of travel costs was not a
valid basis for reducing child support.
The trial court did not agree with defendant that the FOC’s earnings calculations were
wrong. The court observed that plaintiff had provided updated information, which supported her
reduced imputed income. By contrast, defendant did not submit any updated documentation to the
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FOC; therefore, the FOC properly relied on wage data for persons generally involved in the same
business as defendant. The trial court stated that defendant submitted his 2023 tax return after the
court requested the documents at the evidentiary hearing, but it determined that that tax return did
not support changing the income calculation. The court explained that the tax return demonstrated
that defendant had a gross income of $121,494, but it still showed a loss of $2,360.3 The trial court
found that the income used by the FOC was more accurate. As such, the court decided to issue
the recommended Uniform Child Support Order (UCSO), requiring defendant to pay monthly
support in the amount of $768.
Finally, the trial court ruled as follows regarding attorney fees:
Plaintiff/mother did not specifically request an award of attorney fees,
although her prayer for relief in her response to Defendant/father’s Motion to
Change Custody, seeks "such other and further relief as the court deems just,
equitable and in the best interest of the minor child." MCR 3.206 permits an award
of attorney fees in a domestic relations matter when it is shown that a party is unable
to bear the expense of the action and the other party is able to pay. Given the
substantial disparity in the parties’ respective incomes and the fact that
Defendant/father did not need to incur any attorney fees himself, and given that
Plaintiff/mother has been bearing alone the cost of raising [AA] without any
financial support from Defendant/father, the Court finds that both requirements of
the court rule have been met, and therefore awards Defendant/mother the
reasonable and necessary attorney fees that she incurred in defense of
Defendant/father’s motion.
Subsequently, defendant filed a claim of appeal in this Court on October 31, 2023. In
November 2023, defendant moved in the trial court to stay enforcement of the court’s ruling
pending his appeal. The trial court apparently held a hearing on the motion for stay. The court
granted a stay but only as to the award of attorney fees. The motion for stay was denied in all
other respects.
In February 2024, defendant moved to modify his child support obligation retroactively to
the date of the entry of the last support order. He claimed that the evidence would show that he
had a net income of $51,439 in 2021 and $59,918 in 2020, which was substantially lower than the
imputed amount used by the FOC. Defendant also noted that he had a second child, which the
FOC did not take into consideration.
The trial court later entered a stipulated child support order on February 6, 2024. The order
increased plaintiff’s imputed income on the basis of her previous employment at $22 an hour for
40 hours a week. The parties also stipulated to using defendant’s actual income from 2020 to 2021
for calculating child support. The parties further stipulated to modifying child support on the basis
that both parties now had more children. Employing the new criteria, the trial court ordered
3
Defendant operates his own small business.
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defendant to pay $383 a month in child support effective February 22, 2024. The court entered a
revised UCSO in March 2024.
The trial court entered yet another stipulated order in June 2024. The stipulated order
provided that the parties would have joint legal and joint physical custody of AA. The order also
changed AA’s domicile to defendant’s home in Texas effective June 7, 2024. AA would now
attend school in Texas. The order further stated that the parties would exercise week-on/week-off
parenting time. The order additionally provided that neither party would pay child support. The
parties agreed to refuse services from the FOC.
II. ANALYSIS
A. CUSTODY DISPUTE
We first address defendant’s claims that the trial court erred when it denied his motion to
change physical custody and his request to allow AA to attend school in Texas. We conclude that
these claims of error were rendered moot or were waived by the stipulated order on custody that
was entered after this appeal was filed.
“Whether a case is moot is a threshold question that we address before reaching the
substantive issues of a case.” Gleason v Kincaid, 323 Mich App 308, 314; 917 NW2d 685 (2018).
A claim of error is moot when a subsequent event has rendered it impossible for the appellate court
to fashion a remedy. Garrett v Washington, 314 Mich App 436, 450; 886 NW2d 762 (2016).
Because reviewing a moot issue would ordinarily be a purposeless endeavor, this Court will
generally dismiss a moot claim without reaching the merits. Gleason, 323 Mich App at 315. This
Court will, however, review a moot claim when there is a reasonable expectation that a publicly-
significant wrong will recur yet escape judicial review. Id. A waiver involves the intentional
abandonment or relinquishment of a known right, and the affirmative expression of assent
constitutes a waiver. VHS Huron Valley Sinai Hosp v Sentinel Ins Co, 322 Mich App 707, 716;
916 NW2d 218 (2017).
In the trial court, defendant moved for a change in custody and other relief. More
specifically, he asked the trial court to award him physical custody of AA and to allow AA to
attend school in Texas. The trial court denied the motion in October 2023. In June 2024, the trial
court entered the stipulated order that gave defendant joint physical and legal custody of AA. The
order also changed AA’s domicile to defendant’s home in Texas and put into place a week-on and
week-off parenting-time schedule.
Given the changes accomplished by the stipulated order entered in June 2024, defendant
has obtained most if not all the relief that he had requested, including having AA’s domicile and
schooling changed to Texas and being awarded, while not sole physical custody, at least joint
physical custody.4 To the extent that defendant obtained relief in the stipulated custody order that
4
While plaintiff was described as having sole physical custody of AA, the parenting-time
arrangement between the parties would more accurately be characterized as joint physical custody.
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he had requested in his rejected motion, it is impossible for us to fashion a remedy and those issues
are now moot. See Garrett, 314 Mich App at 450.5 And to the extent that the stipulated order on
custody may not have resulted in defendant obtaining all the relief that he sought in his rejected
motion, we conclude that the claim for such relief was waived.6 Despite the fact that he had a
pending appeal, defendant affirmatively reached an agreement with plaintiff to share physical and
legal custody of AA, which was memorialized in a stipulated court order, thereby abandoning or
relinquishing a known right to a ruling from this Court on his appeal. Were we to hold that the
trial court erred by not awarding defendant physical and legal custody back in October 2023, the
subsequently-entered stipulated custody order would ultimately govern. We conclude that the
doctrines of mootness and waiver demand, respectively, dismissal and affirmance.
B. CHILD SUPPORT
We next address defendant’s claim that the trial court erred when it adopted the child
support order recommended by the FOC. “Whether this Court has jurisdiction to hear an appeal
is always within the scope of this Court’s review.” Chen v Wayne State Univ, 284 Mich App 172,
191; 771 NW2d 172 (2009). This Court has jurisdiction of an appeal of right from a final judgment
or order as defined in MCR 7.202(6). See MCR 7.203(A)(1). In MCR 7.202(6)(a)(iii), our
Supreme Court defined “final order” to include “in a domestic relations action, a postjudgment
order that, as to a minor, grants or denies a motion to change legal custody, physical custody, or
domicile.” It also defined “final order” to include a “postjudgment order awarding or denying
attorney fees and costs under court rule or other law.” See MCR 7.202(6)(a)(iv).
Defendant appealed the trial court’s decisions on custody, domicile, and attorney fees.
Those orders constitute final orders for purposes of an appeal of right. A modification of child
See MCL 722.26a(7)(a) (“joint custody” means “[t]hat the child shall reside alternately for specific
periods with each of the parents”). Furthermore, although defendant requested that he be awarded
physical custody of the child, it appears that defendant ultimately wished for joint physical custody
but with parenting time reversed. Defendant’s main objectives were to have AA’s domicile
changed to Texas and for her to attend school in Texas. He states in his brief on appeal that he did
not propose a change in the established custodial environment, just “a reversal of the school
schedule,” citing caselaw stating that flip-flopping a parenting-time arrangement does not change
the established custodial environment. Accordingly, defendant ostensibly received everything he
hoped for upon entry of the stipulated custody order.
5
Moreover, we cannot grant defendant relief for any lost parenting time that he might have
exercised but for the alleged error. See Stern v Stern, 327 Mich 531, 534; 42 NW2d 737 (1950)
(declining to address a parenting-time dispute over a specific period of parenting time because the
Court could not grant relief given that the relevant period had passed).
6
Although defendant contends in his brief on appeal that the trial court erred by not awarding him
sole legal custody, at no point in the lower court proceedings did he assert that an inability to co-
parent AA warranted an award of sole legal custody in favor of defendant. Moreover, any claim
for sole legal custody was waived and rendered moot when defendant entered into the stipulated
custody order.
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support, however, is not defined as a final order. See MCR 7.202(6)(a). Moreover, the fact that
the trial court addressed defendant’s objections to the child support recommendation in its opinion
and order resolving the custody dispute did not transform the child support ruling into one
appealable as of right. See MCR 7.203(A)(1) (an appeal from an order that is appealable by right
“is limited to the portion of the order with respect to which there is an appeal of right”).
Accordingly, we do not have jurisdiction over defendant’s appeal to the extent that it includes a
claim of error regarding the UCSO. Furthermore, given the stipulated child support order requiring
neither party to pay support, the doctrines of mootness and waiver would operate to preclude
appellate relief with respect to child support going forward. In sum, we reject defendant’s appeal
of the trial court’s child support ruling.
C. ATTORNEY FEES
Defendant finally argues that the trial court erred when it awarded plaintiff attorney fees.
This Court reviews de novo whether the trial court properly interpreted and applied the court rules.
Franks v Franks, 330 Mich App 69, 86; 944 NW2d 388 (2019). We review a trial court’s decision
whether to exercise its discretion to award attorney fees for an abuse of discretion. Borowsky v
Borowsky, 273 Mich App 666, 687; 733 NW2d 71 (2007). A trial court abuses its discretion when
its decision falls outside the range of reasonable and principled outcomes. Ford Motor Co v Dep’t
of Treasury, 313 Mich App 572, 588; 884 NW2d 587 (2015). A trial court necessarily abuses its
discretion when it bases its decision on an error of law. Gay v Select Specialty Hosp, 295 Mich
App 284, 292; 813 NW2d 354 (2012).
The trial court relied on MCR 3.206 in awarding plaintiff attorney fees. MCR 3.206(D)
provides, in pertinent part:
(1) A party may, at any time, request that the court order the other party to
pay all or part of the attorney fees and expenses related to the action or a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts
sufficient to show that:
(a) the party is unable to bear the expense of the action, including the
expense of engaging in discovery appropriate for the matter, and that the other party
is able to pay, . . . .
In this case, assuming that the trial court could sua sponte award attorney fees under MCR
3.206(D) absent specific allegations of fact by plaintiff on the subject, there simply was no
evidence presented showing that plaintiff was unable to bear the expenses related to defending
against defendant’s motion. See Loutts v Loutts (After Remand), 309 Mich App 203, 216; 871
NW2d 298 (2015). Accordingly, we must vacate the award of attorney fees.
III. CONCLUSION
With respect to the issues of child custody, domicile, and schooling, we dismiss
defendant’s appeal as moot or otherwise affirm the trial court’s ruling on the basis of waiver. In
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regard to child support, we dismiss defendant’s appeal for lack of jurisdiction, while also
concluding that the doctrines of mootness and waiver lend further support to rejecting defendant’s
appeal. Finally, we vacate the trial court’s award of attorney fees.
We dismiss and affirm in part and vacate in part. We decline to award taxable costs under
MCR 7.219.
/s/ James Robert Redford
/s/ Michael F. Gadola
/s/ Michael J. Riordan
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