DOMESTIC CASELAW UPDATE

BY RYAN O'NEIL (OAKLAND)

Custody
 
Carneiro v. Carneiro, unpublished per curiam opinion of the Court of Appeals, issued July 18, 2024 (Docket No. 366974, 367645, 368672). Ingham County
 
After the parties were married in Brazil, they relocated to Michigan where Father studied at Michigan State.  Father’s studies were paid for by the Brazilian government with the understanding that he would return to Brazil to work.  Father’s failure to return would result in repayments back to the Brazilian government.  Father filed for divorce after discovering Mother was having an affair.  After the divorce action was filed, the parties had exercised equal parenting time with the minor child except during the periods where Mother accused Father of abuse which resulted in him not having parenting time with the child.   Father argued that Mother falsified claims of domestic violence in order to remain in the United States under a program which permitted survivors of domestic violence to remain in the United States.  The trial court found that the minor child had an established custodial environment with both Mother and Father, awarded the parties joint legal custody, and found that the minor child would attend school in Brazil with Mother having substantial parenting time.   
 
On appeal, Mother first contends that the minor child had an established custodial environment with her - despite the fact that the trial court applied the clear and convincing evidence standard because of Father’s request to change the child’s domicile.  Mother contended that a finding that the child had an established custodial environment with her alone would have changed the trial court’s findings under the best interest factors, but the Court of Appeals rejected this argument as having no basis in the law.  

The Court next rejected Mother’s argument that the trial court did not find a change in circumstance and/or proper cause to modify custody.  However, that requirement does not apply to initial custody findings even where an interim order is entered.  Thompson v Thompson, 261 Mich App 353, 359-362; 683 NW2d 250 (2004).  
 
Mother then attacked the trial court’s best interest findings.  Mother argued that Factor (B) should have favored only her because she was more involved in the minor child’s education and because of Father’s domestic violence.  The Court affirmed the trial court’s findings that both parents were bonded with the minor child, both parents were involved in the child’s education, and that Mother’s domestic violence allegations were not credible.  The Court further affirmed the trial court’s findings regarding Factor (J) and noted that Mother had engaged in an extramarital affair and then quickly introduced her paramour to the minor child despite his issues with alcohol.  
 
Mother also contested the trial court’s findings under the change in domicile factors.  MCL 722.31.  Mother alleged that the trial court’s findings that the child would have a relationship with extended family was speculative, however, the Court of Appeals noted that the child’s life would be improved based upon Father’s position as a tenured professor in Brazil, the discharge of his student loans, and the receipt of his pension.  The Court also affirmed the trial court’s ruling that Mother’s parenting time, approximately 158 overnights, was sufficient to continue to foster a relationship between Mother and the minor child.  
 
The Court of Appeals affirmed the trial court’s custody order.
 
Carter v. Basir, unpublished per curiam opinion of the Court of Appeals, issued August 1, 2024 (Docket No. 368751). Washtenaw County
 
Mother and Father were unmarried and had two (2) children.  There were multiple custody and parenting time orders entered.  In 2019, the trial court issued an order which granted the parties joint legal custody, sole physical custody to Mother and parenting time to Father.  In 2023, the trial court modified physical custody by awarding the parties equal parenting time.  
 
“A trial court may modify or amend its previous orders or judgments regarding child custody ‘for proper cause shown or because of change of circumstances’ if it is in the best interests of the child. MCL 722.27(1)(c).”  
 
Mother had sought an ex parte motion to suspend Father’s parenting time alleging abuse.  This motion was denied, and Mother filed objections.  At the hearing on Mother’s objections, the trial court referred the matter to the Friend of the Court for an investigation and recommendation finding that, if the allegations were true, that would constitute a change in circumstance and/or proper cause.  On the second day of the evidentiary hearing, Father made an oral motion to modify parenting time - but the trial court did not make a specific finding regarding either a change in circumstance and/or proper cause regarding this request.  
 
The threshold inquiry for a change in custody is whether the party seeking the modification has established, by a preponderance of the evidence, that proper cause or a change in circumstances exists to warrant a change in custody. Id. at 509, 512. In this case, defendant withheld visitation because she believed that plaintiff was abusing the children while they were in his care. But a withholding of visitation, alone, is not enough to warrant a change in custody. See Maier v Maier, 311 Mich App 218, 227; 874 NW2d 725 (2015).
 
The custody order was vacated 
 
 Child Support  
 
Argel v. Argel, unpublished per curiam opinion of the Court of Appeals, issued August 15, 2024 (Docket No. 368398). Jackson County
 
This case is Father’s sixth appeal to the Court of Appeals.  Father sought to change the parenting time schedule and the minor child’s domicile from Michigan to Texas.  Father filed a custody motion alleging that Mother had moved the child from her home into a home with her parents.  The trial court set the matter for a hearing.  Following two (2) days of hearing, the trial court denied Father’s motion finding that it was not in the minor child’s best interest to change custody/domicile.  At the same time, a Friend of the Court investigation regarding child support was completed.  Father objected to the recommendation which imputed Father income exceeding $89,000.  As part of his objections, Father produced a stipulated order from 2018 that his child support obligation was to be set at $0 because of the cost of transportation he incurred.  At a hearing, the trial court rejected Father’s argument that his child support should be set at $0 because it was his choice to move to Texas.  The trial court also rejected Father’s argument that his income was miscalculated.  Father did not provide income information as part of the child support review and the Friend of the Court relied upon wage data.  The trial court also ordered Father to pay attorney fees to Mother citing the disparity in the parties’ income.  Subsequent to these hearings, the parties entered two (2) consent orders - the first was a child support order which reduced Father’s child support obligation based upon a higher income for Mother and an “actual” income for Father in the amount of $51,000/year.  The second order was an order that awarded the parties joint legal and physical custody of the minor child with the child having his domicile changed to Texas.  
 
A child support order is not a final order which is appealable by right.  MCR 7.202(6)(a)(iii).   The Court of Appeals dismissed Father’s appeal with regards to child support.