Michigan Appellate Digest

Shade v Wright
COA# 296318 View Docket Sheet
Released: December 2, 2010
Panel: Borrello, Jansen (concurring in result), Bandstra (PC)

291 Mich App 17; 805 NW2d 1 (2010)
Opinion - Per Curiam - Published View Opinion
Opinion - Concurring View Opinion

Domestic Relations - Child Custody - Visitation - Review - Standard

Orders concerning parenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. Under the great weight of the evidence standard, the court should not substitute its judgment on questions of fact unless the facts clearly preponderate in the opposite direction. An abuse of discretion exists when the trial court’s decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Clear legal error occurs when the trial court errs in its choice, interpretation, or application of the existing law.

Appeal and Error - Law of the Case - Applicability - Review - Standard

The determination whether the law of the case doctrine applies is a question of law which is reviewed de novo on appeal.

Appeal and Error - Law of the Case - Applicability

The law of the case doctrine provides that a question of law decided by an appellate court will not be decided differently on remand or in a subsequent appeal in the same case when the facts remain materially the same. In this case, the parties were divorced in 2006, under an agreement which established joint custody of their minor child and permitted the plaintiff to move with the child to Ohio, with specified arrangements for physical custody and visiting time between the parties. In 2008, the plaintiff petitioned to modify the visitation order and the defendant moved for a change in custody. The trial court refused to alter custody but modified the visitation schedule. The defendant appealed, and argued that in modifying the schedule from that established in the consent judgment of divorce, the trial court breached the law of the case. However, the court’s determination of the best interest of the child implicit in its acceptance of the parties’ settlement was a question of fact rather than law, was not a determination by an appellate court, and -- given the greater age of the child and her concomitant change in activities -- was not made as to unchanged material facts. The law of the case did not apply.

Domestic Relations - Child Custody - Child Custody Determination - Definition

Under the Child Custody act, a “child custody determination” is a judgment, decree, or other court order providing for legal custody, physical custody, or parenting time with respect to a child, including a permanent, temporary, initial, and modification order.

MCL 722.1102(c)

Domestic Relations - Child Custody - Modification - Burden of Proof

A trial court may modify or amend its previous child custody judgments or orders for proper cause shown or because of a change of circumstances, but only when it is in the minor child’s best interest. If a modification would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child’s best interest, but if the proposed change would not change the custodial environment, the burden is on the parent proposing the change to establish, by a preponderance of the evidence, that the change is in the child’s best interest.

MCL 722.27(1)(c)

Domestic Relations - Child Custody - Modification - Cause

Proper cause to merit a change in child custody requires an appropriate ground which has or could have a significant effect on the child’s life to the extent that a reevaluation of the child’s custodial situation should be undertaken. The party seeking the change must prove by a preponderance of the evidence the existence of an appropriate ground. The appropriate ground should be relevant to at least one of the twelve statutory best interest factors, and must be of such a magnitude as to have a significant effect on the child’s well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors.

Domestic Relations - Child Custody - Modification - Change in Circumstances - Standard

To establish a change of circumstances which merits a change in child custody, a movant must prove 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. The evidence must demonstrate something more than normal life changes, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child.

Domestic Relations - Child Custody - Modification - Grounds - Necessity - Purpose

In restricting the circumstances under which modifications to child custody may be made, the CCA seeks to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances.

MCL 722.27

Domestic Relations - Child Custody - Visitation - Purpose

The primary concern with child custody determinations is the stability of the child’s environment and avoidance of unwarranted and disruptive custody changes, while the focus of visitation is to foster a strong relationship between the child and the child’s parents.

Domestic Relations - Child Custody - Visitation - Necessity

Under the CCA, parenting time must be granted in accordance with the best interest of the child, and it is presumed to be in the best interest of a child for the child to have a strong relationship with both of his parents. Generally, parenting time must be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time.

MCL 722.27a(1)

Domestic Relations - Child Custody - Visitation - Modification - Factors - Extracurricular Activities

If a change in a visitation schedule would alter the established custodial environment, the factors relevant to a change in child custody should be considered, but otherwise, visitation should be granted to encourage a strong relationship between the child and his parent. The age of the child and his participation in activities are relevant in determining visitation. In the absence of a change in the established custodial environment, that a child has entered high school and seeks to become more involved in activities is a change in circumstance which can merit a change in visitation. In this case, the judgment of divorce had required the plaintiff to pay for the costs of transportation necessitated by the visitation schedule, and in seeking a change in the schedule and allocation of the costs, the plaintiff contended that the costs of fuel had doubled. The plaintiff also asserted that the established visitation schedule interfered with the child’s increased activities. In modifying the visitation schedule, the trial court maintained approximately the same number of days of visitation with the defendant as the earlier schedule had afforded while reducing the number of necessary trips. The changes in the child’s activities were normal life changes rather than changes which merited a change in the visitation schedule, nor was a change in fuel costs a condition relevant to a change in custody. Under the circumstances, no change in physical custody was merited. However, the geographic distance between the parties’ households affected the transportation time necessary to effect the established visitation schedule, and that circumstance constituted a cause to modify visitation to enable the child to participate in her activities.

Domestic Relations - Child Custody - Visitation - Findings of Fact - Necessity

The child’s best interest governs a court’s decision regarding visitation. Under the CCA, both the custodial best interest factors and the parenting time factors are relevant to parenting time decisions. Custody decisions require findings under all of the best interest factors, but parenting time decisions may be made with findings only on the contested issues. In this case, the modification of visitation did not alter custody and so specific findings on the custodial factors was not necessary. Further, it was clear from the trial court’s statements that it was considering the child’s best interest in modifying visitation. Under the circumstances, the trial court properly modified parenting time.

MCL 722.23, MCL 722.27a(1), MCL 722.27a(6)