Opinion
SC 166762 (94) (104) COA 367325
05-16-2024
ELEINA MIKHAYLOV, Plaintiff-Appellant, v. JOHN STEELE, III, Defendant-Appellee.
Oakland CC: 2020-503163-DM
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On order of the Court, the motions to expedite and to file under seal are GRANTED. There is good cause to seal the parties' briefs and appendices because these items reference information protected under the Family Educational Rights and Privacy Act, 20 USC 1232g , and there are no less restrictive means to adequately and effectively protect the interest asserted. See MCR 8.119(I). The Clerk may disclose or provide copies of any order or opinion entered in this appeal, see MCR 8.119(I)(5), but sealed pleadings or other contents of the file shall not be disclosed or made available for public viewing. The Clerk shall also maintain a copy of this order and forward a copy of this order to the State Court Administrative Office. MCR 8.119(I)(7).
The application for leave to appeal the February 15, 2024 judgment of the Court of Appeals is considered. We VACATE the sentence of the Oakland Circuit Court's August 14, 2023 opinion and order stating, "The children shall return to Michigan one week before the start of school," and REMAND to that court for the limited purpose of determining when the children shall return to Michigan in light of their current school, therapist, medical, and other schedules. We DIRECT the circuit court to expedite its consideration and resolution of this case. In all other respects, leave to appeal is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
The stay of enforcement of the Oakland Circuit Court's August 14, 2023 order modifying custody, ordered on March 5, 2024, is DISSOLVED.
No motion for reconsideration of this order will be entertained.
We do not retain jurisdiction.
Cavanagh, J. (dissenting).
I dissent from the Court's order denying leave to appeal. This case presents a jurisprudentially significant question about whether stipulations in consent orders concerning child custody and parenting time can override the trial court's obligation to determine whether there is proper cause or a change of circumstances to modify such orders under MCL 722.27(1)(c). See Mikhaylov v Steele, 512 Mich. 912, 914 (2023) (Viviano, J., dissenting in part) ("[I]t is not apparent to me that the parties can, by agreement, limit the scope of statutory terms.") Here, the parties' consent judgment of divorce (CJOD) contemplated that after finishing the 2022-2023 school year in Michigan, the children would relocate with plaintiff-mother to Texas and would attend school in Texas going forward. The parties also stipulated that the occurrence of certain future events would or would not constitute proper cause or a change of circumstances to change custody. Relevant to this dispute, the parties agreed that should defendant-father petition to keep the children in Michigan past the 2022-2023 school year, the children being adjusted, doing well academically, or doing well emotionally would not constitute a change of circumstances or proper cause.
I believe that the bench and bar would benefit from guidance as to whether such stipulations are binding, and if not, how trial courts should consider and evaluate modifications to custody orders when parties have agreed to a certain set of circumstances concerning custody and parenting time in an existing consent order, including future changes to legal residence, domicile, or custody. In this case, I question whether, as the Court of Appeals concluded, there was proper cause or a change of circumstances warranting review of the order where the parties anticipated within the CJOD the exact situation that existed when defendant-father filed the motion to modify custody and parenting time. And given that such bargained-for terms are commonplace in divorce and custody agreements, I believe that the issue merits further review by this Court.
I would hear oral argument in the case and ask (1) whether the Oakland Circuit Court and the Court of Appeals correctly analyzed and determined whether there was proper cause or a change of circumstances to review the custody order, see MCL 722.27; Vodvarka v Grasmeyer, 259 Mich.App. 499, 511 (2003), (2) whether parties may stipulate in a custody order that certain factual conditions do not constitute proper cause or a change of circumstances warranting review of the order under MCL 722.27, and (3) if such stipulations are not enforceable, how trial courts should consider such stipulations when evaluating child custody disputes under MCL 722.27(1)(c). Because the Court instead denies leave to appeal, I respectfully dissent.
At a minimum, I would remand to the trial court to determine whether the August 14, 2023 opinion and order continues to align with the children's best interests under the current circumstances and then, if so, establish a schedule to facilitate the children's return to Michigan in keeping with their best interests. Given the length of time that the children have resided in Texas with plaintiff-mother during the pendency of the appeal, the dissolution of the stay is analogous to a peremptory change in custody warranting reevaluation of the children's best interests on the basis of up-to-date information. See Fletcher v Fletcher, 447 Mich. 871, 889 (1991).
Clement, C.J., and Welch, J., join the statement of Cavanagh, J.