Opinion
No. 355270
04-15-2021
SHERRHONDA L. BROWN, Plaintiff-Appellee, v. RICHARD ALLEN SMITH III, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court Family Division
LC No. 05-057954-DS Before: CAMERON, P.J., and K. F. KELLY and M. J. KELLY, JJ. PER CURIAM.
Defendant, Richard Allen Smith III, appeals by right a circuit court order denying his motion to change custody of the child he has in common with plaintiff, Sherrhonda L. Brown. Because the circuit court failed to make a reviewable finding of fact regarding whether a proper cause or change of circumstances warranted revisiting custody, we remand.
Smith has raised other issues regarding his child support and the application of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., to his parenting time. To the extent that Smith argues that the trial court conditioned its custody decision on his failure to pay child support, this argument lacks record support. The court's order conditioned modifying Smith's parenting time, not custody, on his payment of child support. These issues are not appealable by right, and we decline to consider them. See MCR 7.203(A)(1) and MCR 7.202(6)(a)(iii). --------
I. BASIC FACTS
The parties stipulated to joint custody in 2006. In 2012, Smith submitted a document to the court that asserted tribal court jurisdiction on the basis of Native American ancestry. The trial court found that the document was fraudulent and that Smith had committed a fraud on the court. It temporarily granted custody to Brown and reduced Smith's parenting time until he submitted to a psychological evaluation. After Smith failed to submit an evaluation and was arrested for discharging a firearm, assaulting a police officer, and violating a personal protection order, the court suspended his parenting time. Subsequently, Smith submitted to a psychological evaluation indicating that his responses were consistent with someone who was attempting to make himself appear well-adjusted, resulting in an "invalid profile" and results that could not be analyzed, and the court ordered his parenting time supervised. In 2016, Smith informed the parenting-time supervisor that he would no longer exercise supervised parenting time, and the court suspended his parenting time.
In March 2020, Smith moved to change the child's custody on the basis that he in fact had parenting time with the child despite the court's orders, that he had an established custodial environment with the child, and that the child wanted to live with him. Brown denied that Smith had an established custodial environment with the child, but she admitted that he had parenting time and a "few" overnights. The trial court denied Smith's motion to change custody, and it referred Smith's parenting-time motion to the Friend of the Court contingent on his payment of an investigation fee and overdue child support.
II. CHILD CUSTODY
A. STANDARD OF REVIEW
This Court must affirm the judgment of the circuit court in a child custody dispute "unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCL 722.28. This Court reviews the circuit court's finding regarding the existence of a proper cause or change of circumstances to determine whether its finding was against the great weight of the evidence. Pennington v Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019). A finding is against the great weight of the evidence if the evidence "clearly preponderates in the opposite direction." Id. This Court reviews questions of law for clear legal error, which occurs when the trial court has incorrectly chosen, interpreted, or applied the law. Id.
B. ANALYSIS
Smith argues that the trial court erred by denying his motion to change custody because it failed to make a finding regarding whether a proper cause or change of circumstances existed before denying the motion. To minimize unwarranted and disruptive changes in children's custody, a trial court may only modify children's custody if the moving party first establishes a proper cause or a change of circumstances. Corporan v Henton, 282 Mich App 599, 603; 766 NW2d 903 (2009). The existence of proper cause or a change of circumstances is a threshold consideration that the trial court must resolve before revisiting a custody order. Id. The trial court must make the findings of fact that are necessary to properly resolve legal questions. Sparks v Sparks, 440 Mich 141, 162-163; 485 NW2d 893 (1992).
In this case, Smith argued that a proper cause or change of circumstances existed warranting revisiting custody because he had regular parenting time and an established custodial environment with the child. Brown admitted that Smith had regular contact with the child, but she disputed the amount of contact. The trial court did not make any factual findings regarding whether a proper cause or change of circumstances existed to warrant revisiting the existing custody order, and we cannot review a finding that does not exist. Consequently, we remand for the trial court to make a finding regarding whether a proper cause or change of circumstances existed, which is necessary to support its decision to deny Smith's motion to change custody. The court may, but need not, hold a hearing before doing so. See Corporan, 282 Mich App at 605.
Remanded. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly