DOMESTIC CASELAW UPDATE

BY RYAN O'NEIL (Oakland)

CUSTODY

Smith v Rotterdam​, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022 (Docket No. 357940)

​Dueling post-judgment motions to modify custody. The trial court found that the minor child had an established custodial environment with both parties, applied the clear and convincing standard, and found that four (4) best interest factors favored Father while none favored Mother and granted Father’s motion to sole physical custody. Mother appealed the finding that the minor child had an established custodial environment with both parents, but the Court of Appeals rejected (and was seemingly confused) by this argument since the trial court applied the higher clear and convincing standard. Second, while the trial court did not find either a change in circumstance or proper cause, it was not necessary for them to do so since the parties were seeking to modify a temporary order. The Court opined,

This Court, relying on the language of MCL 722.27(1)(c) and noting that there had been no evidentiary hearing or evaluation of the best-interest factors before the trial, held that the trial court did not have to address or rule on whether there had been a change of circumstances or a demonstration of proper cause. Id. at 358, 362-363. Under the circumstances, the panel described the custody order entered after trial as the “initial” order of custody in the case. Id. at 361. And, according to the Court, “[T]he requirement to show proper cause or change of circumstances does not apply to the trial court's initial award of custody. . . .” Thompson v Thompson, 261 Mich App 353, 362; 683 NW2d 250 (2004).

Finally, the Court of Appeals affirmed the trial court’s best interest findings. Of relevant note was the analysis of factor (c): the capacity and disposition of the parties to provide a child with the necessities of life. The Court affirmed the trial court’s finding that Father was in a better position to provide the child with necessities of life due to his steady employment and the fact that Mother does not work and was only looking for part-time employment.


Markiewicz v Markiewicz, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2022 (Docket No. 355774)

During their marriage, Wife and Husband went through the process of preserving embryos via IVF using eggs from Wife’s sister and Husband’s sperm. Following a divorce action being filed, the parties were unable to agree as to what would happen to the one remaining embryo. Wife wanted to preserve the embryo and agreed at the hearing not to hold Husband financially responsible for the child. Father opposed this and indicated he did not want another child of his being born as the parties were already in their 40s and had four (4) children together. The trial court awarded the embryo to Husband and denied Wife’s request for reconsideration and opportunity to brief the issue on the embryo’s legal status.

Wife raised several issues on appeal - many of which were not addressed by the Court of Appeals as they were not raised during the hearing before the trial court. One such issue was whether, under Michigan law, the embryo constituted a human life. Wife’s argument to the trial court was that the embryo was marital property, and as such, the Court of Appeals was unable to determine if the child constituted a human life under Michigan law. The Court of Appeals did consider whether the division of property was equitable and considered that the legislature sought to give protection to nonviable embryos pursuant to the Fetal Protection Act of 1998 MCL 750.90a. Embryos are entitled to protection under the law.

Additionally, MCL 600.2922a penalizes someone who intentionally or negligently commits a wrongful act which results in a miscarriage. However, Michigan has yet to adopt a firm rule for how to award and treat embryos in the context of a divorce case. The Court of Appeals looked at approaches and rules from other states that have grappled with the issue. The Court then adopted a blended approach whereby the court must first look at whether the parties had an agreement for how to treat the embryo, and absent such an agreement, would then look at the interest of the parties. When considering the interest of the parties, the court should look at the following factors:

1. The original reasons the parties underwent IVF
2. The parties’ positions relative to the disposition of the embryo
3. Whether the party who favors recreation has any other reasonable means of having a child if the embryo was destroyed
4. A party’s bad faith in using the embryo as leverage in the divorce proceeding

The matter was remanded back to the trial court to consider the Sparks factors and the legal framework outlined by the Court to determine the treatment of an unviable embryo.

A dissenting opinion rejected the majority’s creation of the framework for determining who an embryo should be awarded to as it seems to contradict its prior ruling that Wife argued at the trial court that the embryo was marital property, and as such, was not subject to any special considerations.


Halstead v Halstead, unpublished per curiam opinion of the Court of Appeals, issued May 5, 2022 (Docket No. 358181)

After Father filed for divorced, the parties briefly reconciled which resulted in their youngest minor child being born (that child was the only minor child at issue during the post-judgment order on appeal). The parties were awarded joint legal custody of the minor child with Mother being awarded primary physical custody and Father being awarded reasonable parenting time as agreed upon by the parties. Father filed a post-judgment motion seeking an order for sole custody alleging that Mother had recently divorced, left her home, and would not disclose her whereabouts. Father also alleged that Mother had been diagnosed with Influenza-B and that, because of the lockdown, it was likely the minor child would become infected. The trial court denied Father’s motion on an ex parte basis prompting Father to refuse to return the minor child to Mother. Mother and her fiancé went to pick up the minor child and the exchange between the parties resulted in a PPO being issued against Mother. The trial court did find Father in violation of the order and required that Father return the minor child to Mother and for the parties to communicate through her fiancé. The parties had several witnesses testify about Mother’s alleged drug use and inability to provide for the minor child. Mother’s current fiancé testified that she has no concerns about Mother’s drug use. Mother testified that while she had relapsed four (4) years earlier, she was not currently using. She testified that she had left her former partner because of abuse and moved to a shelter. The Friend of the Court referee found that Father did not demonstrate a change in circumstance/proper cause and recommended that the motion be denied. The trial court largely affirmed this recommendation, but sua sponte awarded Father sole legal custody. A subsequent evidentiary hearing was held whereby the parties supplemented the record with updated information. Father testified that while he was not previously involved in the minor child’s education (as he lived further away) he was more involved now that he was awarded sole legal custody. Mother argued that, since the award of legal custody, he had not communicated with her and was on a “power trip.” The trial court then found it was not required to make a finding of change in circumstance/proper cause. The trial court then conducted a best interest analysis and continued with an award of sole legal custody.

First, the Court of Appeals rejected Mother’s argument that the trial court was prohibited from modifying legal custody on its own motion but held that it was improper to do so under the circumstances of the case. Since legal and physical custody both require the same examination, both matters may be before the court, but in the context of this case, the matter  had not been raised by either party and the facts do not support the trial court raising the issue on its own.

Second, the Court of Appeals found the trial court improperly concluded it was not required to make a finding on change in circumstance or proper cause. Even though neither party sought to modify legal custody, Father was the party who received the benefit of the change and should have been charged with demonstrating either proper cause or a change in circumstance.

Finally, the trial court failed to make any findings to show how it is not in the minor child’s best interest for the parties to share legal custody. The trial court seemed to largely focus on Mother’s separation from her partner and admittance to a shelter as basis to modify legal custody, for which the Court of Appeals said, “[A] custodial parent does not need the other parent’s permission to change partners or remove herself and a child from a dangerous situation.”

A concurring opinion questioned why the majority opinion spent so much time examining whether the trial court could raise the issue of legal custody on its own initiative when it ultimately reached the correct conclusion that, while it could, it did not offer the parties an opportunity to argue their respective positions. The concurring opinion also would have foregone the examination of best interest analysis as the trial court incorrectly failed to make findings on change in circumstance and proper cause.

PARENTING TIME

Hallin v Brunnell, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022 (Docket No. 358126)

Following a domestic violence incident with her new husband and concerns over Mother’s substance abuse, the trial court awarded Father primary custody of the parties’ minor child. Seven (7) years later, Mother filed a motion to modify parenting time alleging that she was getting re-married, expecting a new child, had exercised parenting time beyond what was provided for in the order, and was moving into a new home. The trial court, following the recommendation of the Friend of the Court, denied Mother’s parenting time finding that she did not demonstrate a change in circumstance or proper cause. The trial court also rejected the argument that exercising parenting time outside the parameters of the order should be considered as it was against public policy - such a consideration would deter parents from expanding the other’s parenting time. The Court of Appeals affirmed the trial court’s finding that Mother did not demonstrate a proper cause or change in circumstance. While her relationship status has changed, she did not address the substance abuse concerns. Mother did not deny that she continues to consume alcohol and has not yet had her driver license reinstated. Mother also failed to show how her new relationship has impacted the minor children.

CHANGE OF DOMICILE

Travis v Jacobs, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2022 (Docket No. 357940)
Following the entry of a judgment, Mother began denying Father parenting time. Father filed motions to enforce and eventually moved to change custody alleging that Mother had lost her home and moved into a shelter. Mother filed her own motion to change domicile to Houghton Lake alleging that she had been approved for assistance with an apartment. The Friend of the Court Custody and Parenting Time Specialist prepared a recommendation that the change of domicile be denied and custody remain, but that if the change of domicile was granted, that Father be awarded custody of the minor child. The trial court conducted a hearing and prepared an opinion (along with an order re: parenting time exchanges following motions filed by both parties) denying Mother’s motion to change domicile and granting Father’s motion to change custody.

The Court of Appeals affirmed the trial court’s denial of Mother’s request to change domicile. The court rejected the argument that the child’s quality of life would not be improved by the move to Houghton Lake because of Father’s unstable living situation with his girlfriend who was still married. The trial court properly considered the testimony of Father’s girlfriend that her divorce would be finalized shortly, and the parties planned on purchasing a home in a safe neighborhood. Mother’s employment situation was also subject to continual change, and she presented no evidence about the quality of education in Houghton Lake compared to the minor child’s current school. The trial court also correctly found that Mother’s motivation to relocate to Houghton Lake was due in part to her desire to frustrate Father’s parenting time.

The Court of Appeals further rejected Mother’s claims that the trial court was biased against her because of “hostile comments” made by the judge against Mother. Statements made by a trial judge that are “critical of or hostile to counsel, the parties, or their cases, ordinarily do not establish disqualifying bias.” In re MKK, 286 Mich App 546, 567; 781 NW2d 132 (2009).

In affirming the trial court’s ruling to grant Father’s motion to change custody, the Court affirmed the best interest findings. Specifically, the Court affirmed the finding that factor (g) — the physical and mental health of the parties — favored Father. While both parties did not present evidence of any physical ailments that would hinder their ability to parent, Mother’s history of CPS investigations and her refusal to follow the court orders to attend therapy impacted her mental health. 

Finally, Mother argued that the trial court improperly considered the Friend of the Court report and recommendation. Father’s attorney had subpoenaed the Custody and Parenting Time Specialist who had not appeared for trial but sought admission of the report in lieu of compelling his appearance. Mother’s attorney stipulated to the entry of the report. Mother did not raise a hearsay objection at trial and the issue was waived. Further, the trial court’s opinion, to the extent it mirrored the recommendation from the Friend of the Court, was based on properly received evidence during the evidentiary hearing.

CHILD SUPPORT

Adams v Youker, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022 (Docket No. 353793)

As part of a child support hearing, the trial court applied straight-line depreciation to Father’s business (which utilized accelerated depreciation). After an objection from Father, a hearing was held in which Father and his accountant testified. The trial court found Father’s annual income to be $213,713 and ordered support to be paid by Father to Mother in the amount of $1,296 per month. In reaching this conclusion, the trial court added back the accelerated depreciation to the business’s profit (Value of X). It then subtracted the straight-line depreciation from the accelerated depreciation and subtracted that amount from the Value of X.

The Court of Appeals analyzed each step of the trial court’s calculation. First, the addition of the accelerated depreciation to the business’s profits was correct as the Michigan Child Support Formula (“MCSF”) does not allow a parent to deduct accelerated depreciation. MCSF 2.01(E)(4)(e)(iii). The second step, the subtraction of the straight-line depreciation from the accelerated depreciation, is not supported by the MCSF. The case was remanded to the trial court to calculate the net income pursuant to the MCSF and the rules for adding in accelerated-depreciation or to make the proper findings if the trial court intended to deviate from the MCSF. MCSF 1.04(A).