Opinion
No. 338145
10-12-2017
STEPHANIE SUZANNE ESPINOZA, Plaintiff/Counter Defendant-Appellant, v. DONNIE JAMES ESPINOZA, Defendant/Counter Plaintiff-Appellee.
UNPUBLISHED Livingston Circuit Court Family Division
LC No. 15-050151-DM Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
The parties are the divorced parents of two minor children. Plaintiff appeals as of right the order modifying the parties' parenting-time arrangement in their judgment of divorce. We vacate the trial court's order and remand for further proceedings.
Defendant contends that the postjudgment order appealed from does not change the joint physical custody arrangement stated in their judgment of divorce and, therefore, is not a final order appealable as of right under MCR 7.202(6)(a)(iii). However, as will be discussed, the division of parenting time in the judgment of divorce effectively awarded plaintiff primary physical custody. As will also be discussed, the degree to which the trial court modified that parenting time five months later affected the custody arrangement. Pursuant to this Court's recent ruling in Lieberman v Orr, 319 Mich App 68, 71 n 1; 900 NW2d 130, 133 (2017), regardless of how the trial court characterized its orders, because the order appealed from did, in fact, affect the custody of the minor children, it was appealable as of right pursuant to MCR 7.202(6)(a)(iii). As a published opinion, we are bound by the Lieberman decision. MCR 7.215(C)(2).
At the divorce trial, the trial court noted that the parties agreed to share legal custody of their children and adopted that stipulation. The trial court found that there was an established custodial environment with both parties "up until the time about four months, five months after the divorce was filed," and then discussed and weighed the statutory best-interest factors for determining child custody. See MCL 722.23. The trial court expressed its preference that the children remain in the Fowlerville marital home, in which plaintiff continued to reside, and stated that defendant would have parenting time "every other weekend from Friday at six until Sunday at six," with one midweek, non-overnight visit per week. It further stated that the parties would have equal parenting time for holidays and alternating weeks during summers. The trial court also recognized defendant's desire to acquire housing in Fowlerville, and it set a hearing date for three months later to review the parenting-time arrangement. The trial court clarified that its intent with the future hearing was that, if defendant was able to "secure housing . . . in the Fowlerville school district," then it would "review and [was] amendable to setting up a week-on, week-off schedule for parenting time."
The resulting judgment of divorce awarded the parties joint legal custody and "joint physical care, custody, and control" of their minor children, although the parenting-time schedule effectively granted plaintiff primary physical custody during the school year. The judgment of divorce also stated that "[f]or the reasons stated on the record, the Court will review parenting time" in three months. After multiple adjournments, this review hearing took place roughly five months later. Although plaintiff offered to bring witnesses to testify regarding child custody and parenting time, the trial court limited the scope of the hearing to whether defendant acquired a Fowlerville residence. Defendant reported to the trial court that he had signed a purchase agreement for a Fowlerville home in October 2016 and closed on the home the following month.
In response, plaintiff's counsel asserted that the children had an established custodial environment with plaintiff and that the trial court needed to make the appropriate findings before modifying the parenting-time schedule set in the judgment of divorce:
At this time, we would submit to the Court that there is an established custodial environment with [plaintiff]. The children have been there for more than 14 months, 14 months in the current schedule of which she spent more than 313 overnights, compared to [defendant's] 50 or so. The children have been in a stable established environment with [plaintiff]. She takes care of all their needs. None of that's changed.Plaintiff further argued that if the trial court changed the parties' parenting-time schedule to be equal with alternating weeks, it would disrupt the established custodial environment with plaintiff. The trial court stated that plaintiff raised "an interesting legal question" because the trial court had framed the review hearing as a "continuation of the divorce proceeding" pending defendant's acquisition of housing in the Fowlerville school district, but decided it would neither "go through the whole decision tree process" regarding the children's established custodial environment nor "go back and go through the entire decision tree for completion or perfection of the parenting time provision that [it] ultimately ruled on." The trial court then ordered that the parties have equal parenting time on alternating weeks.
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If the Court seeks to change that established custodial environment, whether it's due to a temporary order, no order, and/or the order that you issued, the Court would have to make a finding as to proper cause and change of circumstances, and/or determine the established custodial environment. And if the Court is disrupting that established custodial environment, then the Court would have to do that by clear and convincing evidence.
It appears that the parenting-time schedule that the trial court adopted in the judgment of divorce was the same schedule that the parties had been on since the time they began the divorce proceedings.
On appeal, plaintiff contends that the trial court erred by concluding that it was not required to determine whether proper cause or change of circumstances warranted reconsideration of the applicable best-interest factors before amending the parties' parenting-time schedule in a way that effectively changed the physical custody of the minor children. We agree. Custody orders must be affirmed 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 committed a clear legal error on a major issue. MCL 722.28; Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). "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." Lieberman v Orr, 319 Mich App 68, 77; 900 NW2d 130 (2017) (citation and quotation marks omitted). "A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law." Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009) (citation and quotation marks omitted).
"The Child Custody Act authorizes a trial court to award custody and parenting time arising out of a child custody dispute and imposes a gatekeeping function on the trial court to ensure the child's stability, as set forth in pertinent part in MCL 722.27," Lieberman, 319 Mich App at 78, which provides in pertinent part as follows:
(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 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:
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(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 and, subject to . . . MCL 552.605b, until the child reaches 19 years and 6 months 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. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the
inclination of the custodian and the child as to permanency of the relationship shall also be considered. [Emphasis added.]
"As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change of circumstances before the court may proceed to an analysis of whether the requested modification is in the child's best interests." Lieberman, 319 Mich App at 81. In Vodvarka v Grasmeyer, 259 Mich App 499, 509-514; 675 NW2d 847 (2003), this Court addressed the requisite standards for showing proper cause or a change of circumstances relative to requests to modify child custody. See Lieberman, 319 Mich App at 81. However, a different standard may apply to a request that seeks to modify parenting time. In Shade v Wright, 291 Mich App 17, 28-30; 805 NW2d 1 (2010), this Court addressed the requisite standards for showing proper cause or change in circumstance relative to requests to modify parenting time. See Lieberman, 319 Mich App at 81.
With respect to a request to modify child custody, "a trial court is required to determine whether there is an established custodial environment with one or both parents before making any custody determination." Kessler v Kessler, 295 Mich App 54, 61; 811 NW2d 39 (2011). After making this determination, the standard for showing proper cause or change in circumstances relative to requests to modify child custody (the Vodvarka framework), as recently explained by this Court, provides as follows:
To establish a change of circumstances sufficient for a court to consider modifying a custody order, the movant must prove by a preponderance of the evidence that since the 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. [T]he evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. [T]o establish 'proper cause' necessary to revisit a custody order, a 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. As is the case with a change of circumstances, [t]he appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child's well-being. If the movant does not establish proper cause or a change of circumstances, the trial court is prohibited from holding a child custody hearing[.] [Lieberman, 319 Mich App at 81-82 (citation and quotation marks omitted; alterations in original).]Once the moving party has shown proper cause or change in circumstances for a change affecting custody, if "the child has an established custodial environment with each parent, the movant must prove by clear and convincing evidence that the proposed change is in the best interests of the child." Id. at 83-84.
With respect to parenting time, the proper cause or change in circumstances burden is less: "the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment" may be "sufficient to modify parenting time." Shade, 291 Mich App at 30-31. Under this standard, "the movant must prove by a preponderance of the evidence that the change is in the best interests of the child." Lieberman, 319 Mich App at 84. However, "[i]f a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate," Shade, 291 Mich App at 27, because "when the proposed parenting-time change alters the established custodial environment, the proposal is essentially a change in custody," Lieberman, 319 Mich App at 84. Thus, if a requested change in parenting time does not affect the established custodial environment, then the showing of proper cause or change in circumstance is easier to establish, and the movant need only prove by a preponderance of the evidence that the change is in the child's best interests. In contrast, if a requested change in parenting time does affect the established custodial environment, then the more difficult standard of showing proper cause or change in circumstance used for a request to change custody applies, and the movant must prove by clear and convincing evidence that the proposed change is in the best interests of the child.
In light of the foregoing legal standards, we conclude that the trial court committed clear legal error in its choice and application of the legal framework under which it chose to analyze defendant's motion. Although the trial court characterized its ruling as a "continuation" or "completion" of the divorce trial and a nominal modification of parenting time, its order affected the physical custody of the minor children and, therefore, further proceedings were necessary.
The parties' judgment of divorce awarded plaintiff 12 overnights per 14-day period during the school year, with the parties to alternate weeks during summer break. Thus, plaintiff clearly had primary physical custody, regardless of the trial court's characterization of this custody arrangement as "joint." When the trial court modified the parties' parenting time, it changed the arrangement to week-on, week-off for the entire year. Although the trial court framed its ruling as a continuation of the divorce trial, it had already entered an order for parenting time in the judgment of divorce, which the parties had followed for the five months leading up to the hearing. Its new order drastically changed that parenting time, effectively changing plaintiff's primary physical custody. Yet the trial court did not follow the procedural framework for determining whether a change in custody was appropriate and in the children's best interests. In fact, the trial court declined plaintiff's counsel's invitation to present evidence to assist the trial court in making the necessary determinations, and rejected plaintiff's argument that such findings were necessary, because it viewed the hearing as a continuation of the divorce trial. Regardless of how the trial court framed this hearing, it clearly affected the custody of the minor children. See Lieberman, 319 Mich App at 71 n 1. Accordingly, the trial court was required to determine whether an established custodial environment existed, Kessler, 295 Mich App at 61, and to apply the Vodvarka legal framework to determine whether the conditions surrounding custody had changed sufficiently to warrant revisiting the question of the children's best interests, Lieberman, 319 Mich App at 81-82.
Even were we to consider the trial court's modification to the parties' parenting time as a change in parenting time rather than a change in custody, we nevertheless would hold that the trial court committed clear legal error. For a change in parenting time, just as for a change in custody, the trial court is still required to make determinations for whether the change was proper and in the children's best interests. Before modifying the parenting time, the trial court was required to determine whether there was an established custodial environment and, if so, "whether the proposed change would modify the established custodial environment." Pierron, 486 Mich at 85. Depending on whether the proposed change affected the custodial environment, the trial court was then required to determine whether the change was in the children's best interests by the applicable standard of proof as stated in either Shade or Vodvarka. See Shade, 291 Mich App at 23, 27. Because the trial court summarily decided that the hearing to change the parties' parenting time was a continuation of the divorce proceedings rather than making the relevant determinations for whether a change was proper, the trial court committed clear legal error. --------
Vacated and remanded. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Colleen A. O'Brien