Larry Brinker Jr v. Erica Nicole Proctor

STATE OF MICHIGAN
COURT OF APPEALS
LARRY BRINKER, JR., UNPUBLISHED
January 19, 2017
Plaintiff/Counter-Defendant-
Appellee,
v No. 329051
Wayne Circuit Court
Family Division
ERICA NICOLE PROCTOR, LC No. 14-108877-DM
Defendant/Counter-Plaintiff-
Appellant.
Before: TALBOT, C.J., and JANSEN and HOEKSTRA, JJ.
PER CURIAM.
Defendant appeals as of right the judgment of divorce (JOD). We affirm.
Defendant challenges the trial court’s entry of the judgment of divorce and incorporated
confidential settlement agreement. Specifically, she challenges the trial court’s determination
that the parties agreed to the provision of the settlement agreement that increases plaintiff’s
summer parenting time with the minor child in 2017, and asserts error regarding the trial court’s
failure to refer the dispute to the arbitrator. We disagree.
“A consent judgment is in the nature of a contract, and is to be construed and applied as
such.” Laffin v Laffin, 280 Mich. App. 513, 517; 760 NW2d 738 (2008). “In general, consent
judgments are final and binding upon the court and the parties, and cannot be modified absent
fraud, mistake, or unconscionable advantage.” Id. “[Q]uestions involving the proper
interpretation of a contract or the legal effect of a contractual clause are . . . reviewed de novo.”
Rory v Continental Ins Co, 473 Mich. 457, 464; 703 NW2d 23 (2005).
MCR 2.507(G) provides, “An agreement or consent between the parties or their attorneys
respecting the proceedings in an action is not binding unless it was made in open court, or unless
evidence of the agreement is in writing, subscribed by the party against whom the agreement is
offered or by that party’s attorney.” “An attorney has the apparent authority to settle a lawsuit on
behalf of his or her client.” Kloian v Domino’s Pizza, LLC, 273 Mich. App. 449, 453; 733 NW2d
766 (2006). “Generally, contracts between consenting adults are enforced according to the terms
-1-
to which the parties themselves agreed.” Lentz v Lentz, 271 Mich. App. 465, 471; 721 NW2d 861
(2006).
At the outset, we note that the dispute in this matter only pertains to whether defendant
agreed to the increase in plaintiff’s summer parenting time in 2017. The parties entered into a
settlement agreement before the court finalized the judgment of divorce. The parties discussed
the settlement terms on the record. After discussing the terms on the record, the parties disputed
the agreement with regard to the 2017 summer parenting time schedule. The court concluded
during a subsequent hearing that the parties agreed to follow the parenting time schedule created
by Dr. Jack Haynes with regard to the summer of 2017. We conclude that the trial court did not
err by resolving the language dispute at the request of the parties and determining that defendant
agreed to the prospective increase in plaintiff’s summer parenting time for 2017.
During the July 7, 2015 hearing, the parties approached the trial court, indicating their
readiness to place their settlement agreement on the record. While some minor terms remained
to be decided, defendant’s attorney specified that the major terms were resolved. The trial court
explained the procedure for placing the agreement on the record and the necessity of obtaining
each party’s consent to the settlement terms. While detailing custody and parenting time, there
was a discussion that the parties would “follow the parenting time schedule that is mostly in line
with Dr. Haynes [sic] recommendation with a [tweak],” followed by an explanation regarding
the times for pick up and drop off pertaining to plaintiff’s regular parenting time.1 The parties
also acknowledged that there was a separate holiday and vacation time schedule, developed with
the aid of the guardian ad litem (GAL). Extensive discussion ensued in trying to identify
concerns that would require further clarification before the judgment of divorce was entered.
Defense counsel stated that the minor terms that were not included in the settlement agreement
were the issues of taxes and nondisparagement. Defense counsel emphasized that any remaining
issues constituted “minutia” and were “not material in nature.” He also explained that an
arbitrator could assist with such nonsubstantive matters. He emphasized that the settlement
agreement addressed the issues of “custody and parenting time.” The trial court stated that it was
necessary to have “a full, final and complete settlement,” and received assurance from defense
counsel that no other issues needed to be resolved. Defendant was afforded time to consult
privately with her attorney, and her only question following the consultation related to removal
of the lien of plaintiff’s father from the marital home.
When the JOD was not submitted for signature and approval following the hearing, the
parties again appeared before the trial court on August 11, 2015. The parties sought clarification
regarding the summer 2017 parenting time schedule. Defense counsel asserted that there existed
a separate holiday and vacation time schedule that covered the summer of 2017. Defendant
1
Although the transcript indicates that defense counsel made the statement that the parties would
follow the parenting time scheduled outlined by Dr. Haynes with a “tweak,” the context of the
statement indicates that it was in fact plaintiff’s attorney who made this statement. Regardless,
neither defendant nor her attorney challenged the assertion that the parties agreed to follow the
parenting time schedule of Dr. Haynes with a “tweak.”
-2-
indicated that she “did not agree to a springing increase in parenting time.” Defense counsel
noted his preference to have the trial court resolve the issue that day. The trial court stated that
the parenting time terms could not be construed as minor matters necessitating only a “tweak” in
Dr. Haynes’s proposed schedule, and undertook a review of the recommendation by Dr. Haynes
and the transcript of the July 7, 2015 hearing. After the review, the trial court concluded that the
representations made by counsel during the prior hearing indicated that the parties would follow
the summer parenting time schedule outlined by Dr. Haynes. After the trial court concluded that
the parties agreed to the summer parenting time schedule outlined by Dr. Haynes, defendant
signed the consent judgment of divorce, adding a handwritten notation in the settlement
agreement that she did not agree with the summer 2017 parenting time schedule.
We conclude that the trial court properly determined that the parties agreed to Dr.
Haynes’s summer 2017 parenting time schedule. The parties agreed to adopt Dr. Haynes’s
report with “tweaks.” There was a discussion of the “tweaks” on the record, but neither party
referred to the summer 2017 parenting time schedule as one of the “tweaks.” Defendant
contends that the summer parenting time schedule to which the parties agreed was contained in
the holiday and vacation parenting time agreement completed with the help of the GAL.
However, defendant admits in her brief on appeal that the holiday and vacation time agreement
does not include a summer parenting time schedule. In addition, there is no indication in the
record that the parties had any additional agreement regarding the summer parenting time
schedule.
Notably, toward the conclusion of the discussions with the trial court on this matter,
defendant’s counsel indicated, “[W]e accept . . . [t]he Court’s ruling,” and prompted defendant to
also state, “I accept it.” Further, defendant signed the consent judgment. Defendant’s
handwritten notation on the settlement agreement that she did not agree with the summer 2017
parenting time provision does not negate the fact that defendant agreed to the summer 2017
parenting time schedule and does not counteract the trial court’s proper determination that the
parties agreed to Dr. Haynes’s summer 2017 parenting time schedule. Accordingly, the record
supports the trial court’s conclusion that defendant agreed to be bound by the summer 2017
parenting time schedule outlined by Dr. Haynes.
Defendant also argues that the trial court improperly altered the parenting time terms
without holding a hearing, taking evidence, making findings of fact, or concluding that the
parenting time agreement was contrary to the best interests of the child. MCL 722.27a(2)
provides, “If the parents of a child agree on parenting time terms, the court shall order the
parenting time terms unless the court determines on the record by clear and convincing evidence
that the parenting time terms are not in the best interests of the child.” Here, the trial court
determined that the parties did agree on the parenting time terms, and the court did not conclude
by clear and convincing evidence that the parenting time terms were not in the best interests of
the child. This was not a situation in which the trial court refused to follow the parenting time
schedule agreed to by the parties, but rather, the court determined that the parties did in fact
agree to the parenting time schedule for the summer of 2017. Therefore, the court did not err by
failing to take any additional steps.
Defendant also implies that the court failed to consider that the minor child has special
needs due to his asthma, food allergies, and eating habits. Defendant’s argument is without merit
-3-
for several reasons. First, defendant agreed to a parenting time schedule including routine days
of consecutive parenting time with plaintiff, in addition to identified opportunities for vacation
periods. The fact that defendant agreed to this parenting time arrangement suggests that
defendant believes that plaintiff is sufficiently reliable to monitor his son’s health and well-being
while in his care for extended periods. Second, the confidential settlement agreement,
incorporated into the JOD, provides that the parents will ensure that a child care provider is
familiar with the child’s allergies, asthma, and other medical conditions and will be provided
with medications and instructed on the necessary steps to treat the child’s medical conditions.
The agreement also requires each parent to provide the other parent with the name, address, and
phone number of any provider for the child who cares for the child for more than four hours. It
would appear that all possible precautions and contingencies pertaining to the minor child’s
health and safety have been considered and addressed. Further, as discussed, defendant agreed
to the summer 2017 parenting time schedule outlined in Dr. Haynes’s report with full knowledge
of the child’s special needs and medical conditions. Therefore, her argument that the trial court
failed to consider the special needs of the child is without merit.
Defendant further suggests that the trial court exceeded its authority to resolve the
language dispute because the parties agreed to consult an arbitrator for such matters. While the
JOD and settlement agreement contain arbitration provisions, the parties had not yet signed the
JOD at the time the trial court made its determination. Furthermore, counsel for defendant
specifically requested that the trial court render a decision and resolve the dispute to avoid
prolonging the proceedings. “ ‘[I]t is settled that error requiring reversal may only be predicated
on the trial court’s actions and not upon alleged error to which the aggrieved party contributed by
plan or negligence.’ ” In re Utrera, 281 Mich. App. 1, 11; 761 NW2d 253 (2008) (citation
omitted). Therefore, because defense counsel specifically requested that the court, rather than
the arbitrator, resolve the issue, defendant cannot contend on appeal that the trial court’s decision
to do so contradicted the arbitration provisions in the settlement agreement and JOD.
Affirmed.
/s/ Michael J. Talbot
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
-4-