Opinion
No. 352386
07-23-2020
MARK JUSTIN COOPER, Plaintiff-Appellee, v. CORTNEY AMANDA DIANE COOPER, 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 UNPUBLISHED Kalamazoo Circuit Court Family Division
LC No. 2018-007043-DC Before: MARKEY, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM.
Defendant-mother appeals by right the trial court's order denying her motion to dismiss an a North Carolina court order regarding custody and parenting time of the parties' two minor children that had awarded plaintiff-father primary physical custody of the two children on a temporary emergency basis. The Michigan trial court's order also adopted the temporary emergency North Carolina order as a permanent custody order without the court's conducting its own proceedings typically associated with a custody determination. The trial court believed that it was acting in accordance with the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. We reverse the trial court's custody order and remand the case for further proceedings.
Father already had sole physical custody of the parties' son before the temporary emergency order from North Carolina was issued, but the temporary order did change primary physical custody of the parties' daughter from mother to father.
I. BASIC FACTS AND PROCEDURAL HISTORY
This case presents a purely procedural matter; therefore, we will not delve into the facts in any great detail. The parties were married in June 1998. Their daughter, HC, was born in 2005, and their son, EC, was born in 2008. In January 2015, the parties divorced in Texas. The Texas judgment of divorce essentially awarded the parties joint physical custody of their two children. In October 2017, a postjudgment order modifying custody was entered in Texas. Under the order, father was granted primary physical custody of EC, and mother was awarded primary physical custody of HC. The parties had joint legal custody of the children and had parenting time. Each party remarried, and mother and her new husband lived in North Carolina with HC, while father and his new wife resided with EC in Michigan.
In the fall of 2018, there was a flurry of filings by the parties in a North Carolina (NC) court connected to concerns regarding the behavior of mother's new husband. On November 26, 2018, father filed a verified petition for temporary emergency ex parte custody of HC. On December 6, 2018, an evidentiary hearing was held on the petition. The NC court issued an extensive written order regarding temporary emergency custody. The NC court set forth 59 findings of fact, determined that it was in the best interests of the minor children to exercise temporary emergency jurisdiction, and awarded father primary physical and legal custody of HC on a temporary emergency basis. The NC court found that there was a "substantial risk to [HC's] physical and emotional wellbeing if she were to remain in the primary care[,] custody, . . . and control of [m]other." The NC court concluded that it was in the best interests of the children that father be granted temporary emergency physical custody of both minors until further order of the court. The NC court opined that father was a fit and proper person to have temporary custody. The order directed that HC be immediately relocated to Michigan to live with father. The NC court indicated that it would schedule a hearing to determine the appropriate jurisdiction for future custody litigation, followed by a hearing with the proper state "to review the terms of this [t]emporary [o]rder." The order ended by emphasizing that it was "a temporary order." North Carolina, like Michigan, has adopted the UCCJEA. North Carolina General Statutes (NCGS) 50A-101 et seq. And the NC court expressly issued the order pursuant to NCGS 50A-204, which pertains to temporary emergency custody orders under the UCCJEA.
Shortly thereafter, the NC court held a separate hearing to address jurisdiction and then issued an order providing "exclusive, continuing jurisdiction over the parties, the minor children, and the subject matter of this action" to Michigan as "the more convenient forum." Father next proceeded to file a motion in the trial court in Michigan requesting an order determining that Michigan had exclusive jurisdiction relative to custody issues and asking the court to adopt the NC temporary emergency custody order as a permanent order. The parties eventually entered into a stipulated order recognizing Michigan as having exclusive jurisdiction going forward with respect to the parties' children under the UCCJEA. The stipulation additionally provided that the NC temporary emergency custody order and the NC order regarding jurisdiction had been registered with the trial court.
In June 2019, mother filed a motion in Michigan to terminate the NC temporary emergency order regarding custody. Father then filed a motion to dismiss mother's motion. A hearing was held on all of the pending motions; it was not an evidentiary hearing. In October 2019, the trial court issued a short order granting father's motion to dismiss mother's motion to terminate the NC temporary emergency order. The trial court ruled:
Based on the review of the UCCJEA sections 201-204, the Court is adopting the . . . temporary order of the North Carolina Court as the permanent order of this Court. The best interest factors of North Carolina differ from Michigan, but throughout the enumerated 59 [paragraphs] of the North Carolina order, it is clear that North Carolina took the best interests of the minor child to heart. Therefore,
the Court is adopting the order regarding temporary custody issued in . . . North Carolina . . . as the permanent order of this court. If either party believes there is a change in circumstances, a motion can be filed to challenge the present order of this court. . . . .In January 2020, the trial court denied mother's motion for reconsideration. She now appeals by right the trial court's order.
II. ANALYSIS
A. STANDARDS OF REVIEW
In Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006), this Court, relying primarily on MCL 722.28, addressed the standards of review applicable in a child custody dispute, observing:
There are three different standards of review applicable to child custody cases. The trial court's factual findings on matters such as the established custodial environment and the best-interests factors are reviewed under the great weight of the evidence standard and will be affirmed unless the evidence clearly preponderates in the opposite direction. In reviewing the findings, this Court defers to the trial court's determination of credibility. A trial court's discretionary rulings, such as the court's determination on the issue of custody, are reviewed for an abuse of discretion. Further, . . . questions of law in custody cases are reviewed for clear legal error. [Quotation marks and citations omitted.]Finally, this Court reviews de novo questions involving the interpretation of the UCCJEA. Atchison v Atchison, 256 Mich App 531, 534-535; 664 NW2d 249 (2003).
A court commits clear legal error when it makes a mistake in its choice, interpretation, or application of the law. Shade v Wright, 291 Mich App 17, 21; 805 NW2d 1 (2010). In the child-custody context, the trial court abuses its discretion when its decision is so grossly violative of fact and logic that it evidences passion or bias rather than the exercise of reason. Shulick v Richards, 273 Mich App 320, 324; 729 NW2d 533 (2006).
B. STANDARD ANALYTICAL FRAMEWORK FOR CHANGING CUSTODY IN A
MICHIGAN COURT
MCL 722.27(1)(c) provides that in a custody dispute, the trial court, for the best interests of the child at the center of the dispute, may "modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances." But the court is not permitted to "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." MCL 722.27(1)(c). "These initial steps to changing custody—finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders." Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (quotation marks omitted).
The first step in the analysis is to determine whether the moving party has established proper cause or a change of circumstances, applying a preponderance of the evidence standard. Vodvarka, 259 Mich App at 508-509. "This Court reviews a trial court's determination regarding whether a party has demonstrated proper cause or a change of circumstances under the great weight of the evidence standard." Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009). "Although the threshold consideration of whether there was proper cause or a change of circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary hearing on the topic." Id.
In Pierron v Pierron, 486 Mich 81, 92-93; 782 NW2d 480 (2010), our Supreme Court discussed the next step of the analysis if proper cause or a change of circumstances is established, stating:
If the proposed change would modify the established custodial environment of the child, then the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child's best interests. Under such circumstances, the trial court must consider all the best-interest factors because a case in which the proposed change would modify the custodial environment is essentially a change-of-custody case.
The statutory best-interest factors are set forth in MCL 722.23. And it is ultimately an assessment of the best-interest factors that governs a trial court's decision on custody. MCL 722.23 (the best interests of a child means the sum total of the enumerated factors, which are "to be considered, evaluated, and determined by the court"). "Where the trial court has failed to analyze the issue of child custody in accord with the mandates of MCL 722.23 and make reviewable findings of fact, the proper remedy is to remand for a new child custody hearing." Bowers v Bowers, 190 Mich App 51, 56; 475 NW2d 394 (1991).
C. DISCUSSION
For purposes of the UCCJEA, there is no dispute that the NC court was acting within its jurisdiction when it issued the temporary emergency custody order. See NCGS 50A-204. Additionally, there is no dispute that the Michigan trial court was acting within its jurisdiction when making its ruling to adopt the temporary emergency custody order as a permanent custody order. See MCL 722.1201 through MCL 722.1204. The issue is whether the trial court, in exercising its jurisdiction, was permitted or had the discretion to simply adopt the temporary emergency custody order issued by the NC court or whether the court needed to comply with the analytical framework set forth above in regard to resolving a Michigan change-in-custody dispute.
We have reviewed MCL 722.1201 through MCL 722.1204, which the trial court broadly cited in support of its ruling adopting the NC order. And, as argued by mother, we conclude that these statutory provisions simply have no relevance to answering the issue posed in this appeal.
NCGS 50A-204(a) provides that "[a] court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." Pursuant to this provision, the NC court issued its temporary emergency custody order. Although a full evidentiary hearing was conducted and the NC court made extensive findings of fact and conclusions of law, the order issued by the NC court was nevertheless a "temporary" order issued under and in relation to "emergency" circumstances. With respect to duration, the temporary emergency custody order stated that it would remain in effect until further court order, and it provided for subsequent review of its terms by a court of proper jurisdiction, which was later determined to be a Michigan court. The temporary emergency custody order did not indicate that it would or could become a permanent custody order.
NCGS 50A-204(b) provides that "[i]f a child-custody proceeding has not been or is not commenced in a court of a state having jurisdiction . . ., a child-custody determination made under this section becomes a final determination if it so provides, and this State becomes the home state of the child." The NC order did not so provide. Regardless, a child custody proceeding was commenced in a state indisputably having jurisdiction, Michigan. In other words, as drafted and in light of the surrounding jurisdictional circumstances, the NC temporary emergency custody order could not become a final determination of custody under the UCCJEA. Consequently, the Michigan trial court's decision to simply adopt the NC order as a permanent custody order without conducting an independent examination of the facts and law effectively converted the NC order into a final custody determination in contravention of the UCCJEA.
Moreover, MCL 722.24(1) provides that "[i]n all actions involving dispute of a minor child's custody, the court shall declare the child's inherent rights and establish the rights and duties as to the child's custody, support, and parenting time in accordance with this act." (Emphasis added.) We conclude that the issue of whether the primary physical custody of HC should be changed from mother to father—beyond the terms of the NC temporary emergency custody's order—requires application of the standard analytical framework for modifying custody under Michigan law as outlined earlier in this opinion. Father's arguments to the contrary are unavailing.
The "act" is a reference to the Child Custody Act, MCL 722.21 et seq.
Father's arguments under MCL 722.1304(3)(c) and (5) are misplaced because the "registration," "confirmation," and "validity" of the NC temporary emergency custody order are not at issue in this case. The NC order was valid; it was registered in Michigan, and it was confirmed by a court of our state, but none of these points is pertinent to the question that confronts us, which is whether the valid, registered, and confirmed NC temporary order could be adopted as a permanent custody order without the trial court's following the Michigan Child Custody Act. We do not view confirmation of the NC order as being the equivalent of adopting the temporary NC order as a permanent custody order. --------
We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, mother may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Mark T. Boonstra