Kimberly Marie Marik v. Peter Brian Marik

STATE OF MICHIGAN
COURT OF APPEALS
KIMBERLY MARIE MARIK, FOR PUBLICATION
July 24, 2018
Plaintiff-Appellee, 9:00 a.m.
v No. 333687
Macomb Circuit Court
Family Division
PETER BRIAN MARIK, LC No. 2011-000651-DM
Defendant-Appellant.
Before: CAMERON, P.J., and JANSEN and O’CONNELL, JJ.
CAMERON, P.J.
Defendant appeals the trial court’s order denying his request to change the school
enrollment for the parties’ minor children and his corresponding request to modify parenting
time. Defendant asserts the trial court erred in denying his motion to change the minor
children’s school enrollment from a public school near plaintiff’s home to a parochial school.
Additionally, defendant challenges the trial court’s denial of his request for an increase of 18
overnights to his parenting time. We conclude that the trial court failed to address the children’s
established custodial environment, to describe the applicable burden of proof, and did not
consider any statutory best-interest factors in deciding the requests as required by our case law.
Therefore, we vacate and remand to the trial court to properly address these issues.
I. BACKGROUND
The parties divorced in 2011. The judgment of divorce awarded joint legal and physical
custody, with plaintiff’s home as the minor children’s primary residence. As support for his
requests, defendant asserts the children will benefit from attending a different school system.
Although defendant does not identify any particular deficiency with regard to the children’s
current educational environment or in their respective academic performances, he contends that
their ability to thrive would increase in a different school system he contends is “better.”
Defendant implies that the change in school enrollment should also coincide with an increase in
his parenting time to include an additional 18 overnights with the minor children. The parties
currently share joint physical and legal custody, with plaintiff having 55% of the parenting time
with the minor children and defendant enjoying 45% of the available parenting time. The
parenting time modification requested by defendant would equalize the amount of time the
parties have with the minor children.
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The trial court conducted a de novo hearing on June 13, 2016, at which the parties
presented their arguments on the request to change the children’s school enrollment and the
request to modify parenting time. During the hearing, the parties were sworn in and questioned
briefly by the trial court. At the conclusion of the hearing, the trial court did not expressly
address whether there was an established custodial environment, whether the requests would
change that environment, or whether the requests weighed in favor of the individual best-interest
factors under MCL 722.23. Instead, the trial court stated that
whether or not we use the clear and convincing standard or the preponderance of
the evidence standard in both directions it is my opinion based on everything that
I have heard and read that this is something driven by [defendant] who would like
to create reasons.
And the reasons that you have come up with . . . really benefit you. There
is no problem with your children. They seem to be, as I indicated, thriving. . . .
They are doing well. Their grades are satisfactory. They are young. If there
were a problem, then you would know about it.
But in the interim this is exactly the normal life thing that these children might be
doing adequate and next year might do superior. We don’t know.
But you are anticipating problems because you see problems within the
school system. And I agree with [plaintiff’s counsel], find a school system that
doesn’t have some issues.
And so you would prefer to move into Parochial. It’s joint. Legal mother
doesn’t want it. Most important you gave up your argument years ago and so the
children are established in this school.
I will not interrupt their weeknights when they are doing the way that they
are doing and those things that you can work out, you need to work out. If you
are not hearing from the district, you will have to communicate with them that
you need to be notified of this. Obviously, he is borderline, I think there should
be intelligent discussion about what should occur whether or not additional school
is a good idea.
At the conclusion of the hearing, the trial court dismissed defendant’s objections. Defendant
appeals, claiming the trial court erred when it denied his motion to change the children’s school
enrollment and modify parenting time.
II. PRESERVATION AND STANDARDS OF REVIEW
“Generally, an issue is not properly preserved if it is not raised before, addressed, or
decided by the circuit court or administrative tribunal.” AFSCME Council 25 v Faust Pub
Library, 311 Mich. App. 449, 462; 875 NW2d 254 (2015) (citation omitted). Defendant filed a
motion to change the school enrollment and modify the parenting time for the minor children.
Plaintiff filed a response and the trial court held a hearing. The trial court denied defendant’s
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motion. As such, the issue is generally preserved for appellate review. However, defendant’s
argument as to the trial court’s improper application of res judicata is raised for the first time on
appeal and is not preserved.
As discussed in Lieberman v Orr, 319 Mich. App. 68, 76-77; 900 NW2d 130 (2017):
All custody orders 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.
The great weight of the evidence standard applies to all findings of fact.
A trial court’s findings regarding the existence of an established
custodial environment and regarding each custody factor should be
affirmed unless the evidence clearly preponderates in the opposite
direction. An abuse of discretion standard applies to the trial court’s
discretionary rulings such as custody decisions. Questions of law are
reviewed for clear legal error. A trial court commits clear legal error
when it incorrectly chooses, interprets, or applies the law.
The applicable burden of proof presents a question of law that is reviewed de
novo on appeal. [Citations and quotation marks omitted.]
Unpreserved issues are reviewed “for plain error.” Kern v Blethen-Coluni, 240 Mich. App. 333,
336; 612 NW2d 838 (2000). “To avoid forfeiture under the plain error rule, three requirements
must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and
the plain error affected substantial rights.” Id. (quotation marks and citation omitted).
III. ANALYSIS
A. REQUEST TO CHANGE SCHOOLS
Defendant first challenges the trial court’s lack of adherence to procedural requirements
in denying his motion to change the children’s school enrollment. He asserts the trial court erred
in failing to conduct a full evidentiary hearing and determining whether an established custodial
environment existed for the minor children. We agree.
“The Child Custody Act, MCL 722.21 et seq., ‘applies to all circuit court child custody
disputes and actions, whether original or incidental to other actions.’ ” Pierron v Pierron, 282
Mich. App. 222, 247; 765 NW2d 345 (2009) (Pierron I), aff’d 486 Mich. 81 (2010) (quotation
marks and citation omitted). The purpose of the Child Custody Act is “to promote the best
interests of the child and to provide a stable environment for children that is free of unwarranted
custody changes.” Lieberman, 319 Mich. App. at 78 (citations omitted). Specifically, MCL
722.27 provides, in relevant part:
(1) If a child custody dispute has been submitted to the circuit court as an original
action under this act or has arisen incidentally from another action in the circuit
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court or an order or judgment of the circuit court, for the best interests of the child
the court may do 1 or more of the following:
* * *
(c) Subject to subsection (3), modify or amend its previous judgments or orders
for proper cause shown or because of change of circumstances until the child
reaches 18 years of age . . . . The court shall not modify or amend its previous
judgments or orders or issue a new order so as to change the established custodial
environment of a child unless there is presented clear and convincing evidence
that it is in the best interest of the child. . . .
Preliminarily, it is important to remember that the Child Custody Act “provides that when
parents share joint legal custody—as the parties do here—the parents shall share decision-
making authority as to the important decisions affecting the welfare of the child. However, when
the parents 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 v Pierron,
486 Mich. 81, 85; 782 NW2d 480 (2010) (Pierron II) (citations omitted). The threshold
determination is whether an established custodial environment exists. Pierron I, 282 Mich. App.
at 244. “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 II, 486 Mich. at 85-86 (quotation marks and
citation omitted). “An established custodial environment may exist in more than one home, and
can be established as a result of a temporary custody order, in violation of a custody order, or in
the absence of a custody order.” Pierron I, 282 Mich. App. at 244 (quotation marks and citations
omitted). An important decision affecting a child’s welfare does not necessarily mean the
established custodial environment has been modified. Pierron II, 486 Mich. at 86. There is only
a change to the established custodial environment if parenting time adjustments change “whom
the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort.”
Id. A court may not change the established custodial environment “unless there is presented
clear and convincing evidence that it is in the best interest of the child.” Id. (quotation marks and
citation omitted). If the request to change schools does not change the established custodial
environment, “the heightened evidentiary burden is not applicable, and [the] defendant is
required to prove by a preponderance of the evidence that the proposed change of schools would
be in the best interests of the children.” Id. at 89-90. “If, on the other hand, the court finds that
no established custodial environment exists, then the court may change custody or enter a new
order ‘if the party bearing the burden proves by a preponderance of the evidence that the change
serves the child’s best interests.’ ” Pierron I, 282 Mich. App. at 245 (citations omitted).
In other words, when making these determinations, trial courts must first address whether
an established custodial environment exists. If it does, the trial court must determine whether the
requested change would affect the established custodial environment of the child and, dependent
on that outcome, ascertain the proper burden of proof to be employed. If the proposed change
alters the established custodial environment, the party seeking the change must demonstrate by
clear and convincing evidence that the change is in the children’s best interests. If the change
does not alter the established custodial environment, then the proponent of the change need only
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demonstrate by a preponderance of the evidence that the requested change is in the children’s
best interests. Pierron II, 486 Mich. at 89-90.
The children’s best interests are determined by evaluating the factors designated in MCL
722.23. As clarified in Pierron II:
MCL 722.23 requires “the sum total of the . . . factors to be considered, evaluated,
and determined by the court[.]” (Emphasis added.) In Parent v Parent, 282 Mich
App 152; 762 NW2d 553 (2009), the Court of Appeals addressed this issue, also
in the context of a dispute over a proposed change of school. Recognizing that
even though each of the factors might not be relevant to the issue, MCL 722.23
requires consideration of “all” the factors, the Court held that “[t]he trial court
must at least make explicit factual findings with regard to the applicability of each
factor.” Id. at 157, 762 N.W.2d 553 (emphasis added). We believe that this
approach complies with MCL 722.23 and allows for the proper evaluation of
whether an important decision is genuinely in the best interests of the children, in
accordance with the Child Custody Act. Therefore, we hold that when a trial
court is considering a decision that will not modify the established custodial
environment, such as the change-of-school issue in this case, it must consider the
applicability of all the factors. However, if the trial court determines that a
particular factor is irrelevant to the immediate issue, it need not make substantive
factual findings concerning the factor beyond this determination, but need merely
state that conclusion on the record. [Pierron II, 486 Mich. at 91.]
While the trial court did not designate it as such, the de novo hearing it conducted on
June 13, 2016, was in essence a Lombardo1 hearing. At a Lombardo hearing, the trial court
“must consider, evaluate, and determine each of the factors listed at MCL 722.23 for the purpose
of resolving disputes concerning important decisions affecting the welfare of the child that arise
between joint custodial parents.” Pierron I, 282 Mich. App. at 247 (quotation marks and citation
omitted).
Defendant initially argues that the trial court erred in failing to conduct a full evidentiary
hearing. We agree. The record makes clear that the trial court did not allow the parties an
opportunity to fully present evidence on the issue of whether changing the children’s school was
in their best interests. Instead, the parties’ attorneys presented their arguments, plaintiff and
defendant were placed under oath, and the trial court asked them questions. We have long held
that when the trial court must first answer the threshold question of whether there was a proper
cause or change of circumstances, “the court need not necessarily conduct an evidentiary hearing
on the topic.” Corporan v Henton, 282 Mich. App. 599, 605; 766 NW2d 903 (2009). In this case,
however, the trial court was not required to answer this threshold question prior to considering a
request to change schools.2 Instead, the trial court was tasked with determining the children’s
1
Lombardo v Lombardo, 202 Mich. App. 151, 160; 507 NW2d 788 (1993).
2
Here, as in the Pierron cases, there was no prior order regarding the children’s enrollment in
school, and therefore, defendant was not required to show proper cause or a change of
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established custodial environment, whether the requested change would alter it, and whether
such a request was in the best interests of the minor children. This determination requires an
evidentiary hearing in the form of a Lombardo hearing. See Pierron I, 282 Mich. App. at 247
(“The court must do so by holding an evidentiary hearing and considering the relevant best-
interest factors contained in MCL 722.23.”). There was no evidence introduced, no witnesses
called, no cross-examination by opposing counsel, and, as stated in more detail below, no
express consideration of the best-interest factors contained in MCL 722.23. Therefore, we
conclude that the trial court failed to conduct a full evidentiary hearing on the request to change
the children’s school enrollment, and for that reason, remand is required.
Furthermore, even if the hearing itself was adequate, the trial court failed to properly
analyze the request to change schools consistent with the Child Custody Act. To begin, the trial
court did not determine whether an established custodial environment exists with the children or
whether the change of schools would alter that environment. Our Supreme Court has directed
that “[w]hen 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.”
Pierron II, 486 Mich. at 85. Here, this was not done, and this legal error is sufficient to require
vacation and remand to the trial court.
Moreover, the trial court concluded that, regardless of the legal standard applied, a
change of schools would not be in the children’s best interests. Even if the trial court would
have made a record that the more stringent clear and convincing standard was appropriate, it
failed to analyze a single best-interest factor under MCL 722.23, which requires “the sum total of
the . . . factors to be considered, evaluated, and determined by the court[.]” Pierron II, 486 Mich.
at 91. “[E]ven though each of the factors might not be relevant to the issue, MCL 722.23
requires consideration of ‘all’ the factors,” and “[t]he trial court must at least make explicit
factual findings with regard to the applicability of each factor.” Pierron II, 486 Mich. at 91
(quotation marks and citation omitted). If a particular factor is irrelevant, then the trial court
“need merely state that conclusion on the record.” Id. The trial court’s failure to address any of
the factors under MCL 722.23, let alone declare which factors were applicable and which were
not, is fatal. On remand the trial court must first determine the issues concerning the established
custodial environment and then conduct a full analysis of the best-interest factors.
Defendant’s second claim of error, claiming the trial court improperly dismissed his
objections on a res judicata theory, is without merit. Contrary to defendant’s contention, the trial
court did not improperly rely on defendant’s prior 2012 motion to change school systems, and
his subsequent withdrawal of that request does not evidence the trial court’s improper application
of the doctrine of res judicata3 to the issue of school enrollment. Rather, the trial court pressed
circumstances as to the request to change schools. There was, however, a prior interim order
involving the 2012-2013 school year, but nothing addressing the current or future enrollment of
the minor children.
3
“Michigan law defines res judicata broadly to bar litigation in the second action not only of
those claims actually litigated in the first action, but also claims arising out of the same
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defendant during the hearing to identify how the requested change was in the children’s best
interests. Defendant’s previous withdrawal of a similar motion several years earlier was used by
the trial court to question defendant about what had changed in the four-year interim between
motions to necessitate the enrollment of the children in a different school system. In noting that
the children had been attending their current school for four years, without defendant challenging
their current academic placement, the trial court was seeking to obtain an explanation of why a
change was now necessary and how it would serve the best interests of the children. The trial
court’s reference to defendant’s prior motion was not to preclude or raise a barrier to a new
motion, but simply to evaluate the merits of that new motion.
Plaintiff’s contention that the children’s “graduation” from Kenwood Elementary School
at the conclusion of this academic year renders the issue moot is also mistaken. According to
plaintiff, the children will conclude fifth grade at Kenwood Elementary School, presumably
within the upcoming month. Plaintiff suggests this renders defendant’s issue regarding school
enrollment moot because Kenwood Elementary School does not have classes beyond the fifth-
grade level and defendant has only taken exception to the children’s attendance at this particular
school. First, this is a mischaracterization of defendant’s argument below. Defendant
challenged the children’s attendance in their current school district, with emphasis on issues
pertaining to Kenwood Elementary School, due to various alleged financial problems being
experienced, in both the district and school. Second, when indicating a preference for the
children’s enrollment in a parochial school, defendant specifically observed that their enrollment
could continue in the proposed school until high school, allegedly contributing to greater stability
and continuity. It can be anticipated, given the history and evident animosity between plaintiff
and defendant, that the need for the children to select a school to attend for middle school will
result in new litigation should plaintiff and defendant be unable to agree on a school for their
enrollment. However, if the parties cannot agree on a school to enroll the minor children, the
issue would need to be presented to the trial court for resolution of that specific conflict between
the joint legal custodians. Lombardo, 202 Mich. App. at 159.
B. REQUEST TO MODIFY PARENTING TIME
The final issue to be addressed is defendant’s request to modify parenting time.
Defendant argues that the trial court applied the wrong standard when evaluating his request to
add 18 overnights. Specifically, he contends that the trial court improperly relied on Vodvarka v
Grasmeyer, 259 Mich. App. 499; 675 NW2d 847 (2003), rather than Shade v Wright, 291 Mich
App 17; 805 NW2d 1 (2010).
Changes in custody or parenting time may be modified only if the moving party
demonstrates that modification is justified by proper cause or because of a change of
circumstances. MCL 722.27(1)(c). If the requested modification, such as a motion to change
custody, alters the child’s established custodial environment, the stricter Vodvarka framework
would apply. Shade, 291 Mich. App. at 25-26. However, “a lesser, more flexible, understanding
transaction that the parties, exercising reasonable diligence, could have litigated but did not.”
Peterson Novelties, Inc v City of Berkley, 259 Mich. App. 1, 11; 672 NW2d 351 (2003).
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of ‘proper cause’ or ‘change in circumstances’ ” is applicable to a request to modify parenting
time. Kaeb v Kaeb, 309 Mich. App. 556, 570-571; 873 NW2d 319 (2015). Specifically, “the very
normal life change factors that Vodvarka finds 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.” Shade, 291 Mich. App. at 30.
As more recently explicated by this Court in Kaeb, 309 Mich. App. at 570-572:
Because the imposition, revocation, or modification of a condition on the
exercise of parenting time will generally not affect an established custodial
environment or alter the frequency or duration of parenting time, we are
persuaded that 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. As in Shade, it is evident that 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. A condition that was in the child’s
best interests when the child was in elementary school might not be in the child’s
best interests after he or she reaches high school. Even ordinary changes in the
parties’ behavior, status, or living conditions might justify a trial court in finding
that a previously imposed condition is no longer in the child’s best interests. We
conclude that “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.
[Citations omitted.]
In this instance, defendant implies that a change in the children’s school enrollment
would also constitute a change in circumstances sufficient to revisit the issue of parenting time.
Defendant also suggests that his remarriage and the children’s relationship with his wife and her
daughter comprise a sufficient change in circumstances to revisit parenting time.
Because the trial court denied defendant’s request to alter the children’s school
enrollment, there existed no change in circumstances on this alleged basis to support defendant’s
modification of parenting time. However, because we are remanding for further proceedings on
the request to change schools, this issue will need to be addressed at that time as well. See
Pierron I, 282 Mich. App. at 249 (acknowledging that a change in school may “require minor
modifications to [the] plaintiff’s parenting time schedule”).
Defendant’s alternative basis for the modification of parenting time, his remarriage and
the relationship of the children with members of their step-family, are sufficient under Shade to
meet the initial threshold of a change of circumstances to consider the request. Defendant
contends, however, that the trial court ignored Shade and applied the stricter, and inappropriate,
standard imposed by Vodvarka in its analysis. Because the trial court failed to determine
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whether an established custodial environment exists, let alone whether a modification of
parenting time would change that environment, remand is also required on this issue.4
Whether the Vodvarka or Shade standard is applied depends on the existence of an
established custodial environment and whether the proposed parenting time change would serve
to alter that environment. Specifically:
In a parenting-time matter, when the proposed change would not affect the
established custodial environment, the movant must prove by a preponderance of
the evidence that the change is in the best interests of the child. However, . . .
when the proposed parenting-time change alters the established custodial
environment, the proposal is essentially a change in custody, and Vodvarka
governs. [Lieberman, 319 Mich. App. at 84 (citation omitted).]
Again, the trial court did not specifically address or discuss the existence of an
established custodial environment for the children or the extent to which the best-interest factors
were applicable. While the judgment of divorce granted joint physical and legal custody, a trial
court must not “presume an established custodial environment by reference only to” the most
recent custody order, but must “look into the actual circumstances of the case.” Curless v
Curless, 137 Mich. App. 673, 676-677; 357 NW2d 921 (1984). This determination is required
before the trial court may make a conclusion on the best-interest factors.
Moreover, a determination of the effect of the parenting time modification on the
custodial environment is necessary to determine the proper standard, Vodvarka (clear and
convincing evidence) versus Shade (preponderance of the evidence), to be applied in
determining the best interests of the children. Although defendant argues that the trial court
improperly applied the stricter Vodvarka standard, in reality, the trial court opined that under
either standard the best interests of the children were not served by the increase in overnight
parenting time with defendant. Specifically, the trial court stated: “Now, whether or not we use
the clear and convincing standard or the preponderance of the evidence standard in both
directions it is my opinion based on everything that I heard and read that this is something driven
by the Defendant who would like to create reasons.” Given the trial court’s implication that the
requested parenting time would affect the established custodial environment, utilizing the
Vodvarka standard would not be misplaced or constitute error. However, the trial court did not
reach a conclusion as to whether the Vodvarka standard or Shade standard applies to this case,
and the standard dictates whether the trial court must address each best-interest factor or may
only address those factors in dispute. See Shade, 291 Mich. App. at 31-32 (concluding that
“[c]ustody decisions require findings under all of the best-interest factors, but parenting time
decisions may be made with findings on only the contested issues”).
4
We make clear that the trial court in no way expressed its reliance on a referee’s analysis,
wherein the referee may have properly addressed the established custodial environment and best-
interest factors at a hearing. In fact, there is no transcript of the referee’s hearing in this case,
and the trial court instead reevaluated the evidence, questioned the parties, and made an
independent decision based on the parties’ briefing and the record.
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Therefore, even though the trial court repeatedly sought to focus on and emphasize the
best interests of the minor children, it did not expressly address any of the best-interest factors.
If, on remand, the trial court concludes that the Shade standard applies, then it need only make
findings on the contested issues. However, if it concludes that the stricter Vodvarka standard
applies, then it must address all of the best-interest factors.
Vacated and remanded. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
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