Opinion
SC: 166051 COA: 367325
08-28-2023
Eleina MIKHAYLOV, Plaintiff-Appellant, v. John STEELE, III, Defendant-Appellee.
Order
On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the August 24, 2023 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal and on the Court's own motion, we ORDER that enforcement of the Oakland Circuit Court's August 14, 2023 order modifying custody is stayed pending the completion of this appeal. On motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or if other appropriate grounds appear. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should now be reviewed by this Court.
Welch, J. (concurring).
I concur fully with the Court's decision to grant a stay pending appeal. This Court and the Court of Appeals have authority to grant "a stay of effect or enforcement of any judgment or order of a trial court on the terms it deems just." MCR 7.209(D) ; see also MCR 7.305(I). A primary purpose of a stay pending appeal is "to preserve the status quo during the period an aggrieved party has to file posttrial motions or an appeal." In re Contempt of Calcutt , 184 Mich App 749, 755, 458 N.W.2d 919 (1990). The confusion in this case, for stay analysis purposes, is "what is the status quo?" When the parties to this case were divorced, they agreed to a consent judgment of divorce (CJOD) providing that the children would remain living with the defendant-father and attend school in Michigan through the 2022-2023 school year. The CJOD also provided that the parties’ children would relocate to Texas to reside with the plaintiff-mother in July 2023 and would attend school in Texas moving forward. The children have already relocated to Texas and have begun school in Texas. This is the status quo that the CJOD required and that should be the focus of considerations about whether a stay pending appeal should be granted. The plaintiff-mother has raised potentially meritorious arguments that the family court erred by concluding that there was a "proper cause" or "change in circumstances" that would permit modifying the CJOD under MCL 722.27(1)(c) and that modification is in the best interests of the children. Accordingly, I agree it is both just and equitable to grant a stay pending appeal that will preserve the agreed-to custody and schooling arrangements while the merits of the parties’ arguments are resolved on appeal.
Zahra, J., would decline to issue the stay.
Viviano, J. (dissenting in part).
The parties in the present case were divorced in 2022, with three children. They agreed to a divorce judgment awarding joint legal and physical custody, with a specific schedule for where the children would reside and go to school. Through the 2022-2023 school year, they were to remain with defendant-father in Michigan and continue their enrollment in the Bloomfield Hills school district. Then, for the following school year, they were to move in with plaintiff-mother in Texas and begin school there. In June 2023, the father moved to modify custody and parenting time, seeking primary physical custody of the children and requesting that they remain in Michigan in the upcoming school year. After conducting an evidentiary hearing, the trial court granted the motion, and the Court of Appeals denied the mother's motion for a stay of the trial court order. That means that the children will remain in Michigan and attend the schools that they had been attending for many years.
The majority on this Court reverses the lower courts and grants the stay. Once again, the Court has failed to give any indication of the standard it is applying or its analysis in applying the standard. See, e.g., O'Halloran v Secretary of State , 510 Mich 970, 984-986 (2022) ( VIVIANO , J., dissenting). As I have advocated for in the past, the proper standard that should be applied for motions to stay a trial court order considers the following four factors:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. [ Id. (citation and quotation marks omitted.]
In the present case, I do not believe plaintiff has made the requisite showings. With regard to the first factor, generally, to modify a custody or parenting time order, the trial court must find that there's "proper cause" or a "change of circumstances" and that the modification is in the best interests of the child. MCL 722.27(1)(c). This statutory provision, however, goes on to state that 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." MCL 722.27(1)(c).
In the present case, the custody and school-enrollment provision in the consent divorce judgment is unusual, to say the least. In it, the parties prospectively agreed to relocate the children to Texas at a date 13 months into the future. Further, the parties in the judgment attempted to define the scope of "proper cause" and "change of circumstances" to exclude the children's academic or emotional success while in Michigan. It is not at all clear to me that the parties can prospectively agree to change the children's established custodial environment and thereby circumvent the statutory requirement in MCL 722.27(1)(c) that changes in established custodial environments must be shown to be in the best interest of the child by clear and convincing evidence. See generally Napora v Napora , 159 Mich App 241, 246, 406 N.W.2d 197 (1986) ("[A] parent may not bargain away a child's right by agreement with a former spouse .... Despite any agreement which the parties may reach in regard to the custody of their child, where a custodial environment is found to exist physical custody should not be changed absent clear and convincing evidence that the change is in the best interests of the child."). Even to the extent such agreements are valid, the parties here further attempted to limit the scope of the statutory provision by excluding academic and emotional success in Michigan as a "proper cause" or "change in circumstances" allowing a modification. Again, it is not apparent to me that the parties can, by agreement, limit the scope of statutory terms. Even setting aside these questions about the validity of the consent judgment, it is not yet clear, in the limited time we have had with this case, that the mother has shown she will succeed on the merits, i.e., that the father cannot establish, per MCL 722.27(1)(c), a "proper cause" or "change in circumstances" and cannot show that keeping the children in Michigan is in their best interests.
The trial judge conducted an evidentiary hearing over the course of several days and issued a 37-page opinion that thoroughly evaluated the evidence and addressed the relative merits of the parties’ arguments. Indeed, the trial court found that even if the father were required to prove his case by clear and convincing evidence, he would have met that threshold, as the court found "that the evidence was overwhelming to support Defendant/Father's claim that it is in the children's best interest that they remain in Michigan enrolled in the Bloomfield Hills School District." That finding is entitled to significant deference on appeal. MCL 722.28 ("To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal 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.").
As to the other factors, I fail to see how the mother will be irreparably harmed if her children do not begin the school year with her in Texas. Rather, it seems that the children themselves are at risk of harm if they are forced to attend a new school in a new state, only later to be returned to Michigan, where they have lived and attended school for many years until now. I further believe the public interest weighs against a stay, in that the stability of the children's lives and education would be disrupted by a stay. From their perspective, it is obvious that the status quo is maintained by allowing them to live, go to school, worship, and continue with their sports and other activities in Michigan.
For these reasons, I dissent from the issuance of the stay.