by ryan o'neil (oakland)Custody Mikhaylov v. Steele III, unpublished per curiam opinion of the Court of Appeals, issued February 15, 2024 (Docket No. 367325). Oakland County Following their divorce, Mother and Father shared legal and physical custody of the minor children. Mother relocated to Austin, Texas and the parties agreed that the minor children would remain in school in Bloomfield Hills from 2021 - 2023. Mother would exercise parenting time in both Michigan and Texas. The parties’ consent judgment further provided that, after the two (2) year period, the children would relocate to Texas and attend school there. Father was also planning on moving to Texas. The parties’ judgment, in incorporating these terms, included a provision which read as follows: "If [defendant] should petition this Court for the children to remain in Michigan following the 2022-2023 school year on the basis that they are adjusted and/or are doing well academically and/or emotionally, this shall not be considered a change in circumstance or proper cause. Furthermore, if [defendant] should petition the Court to modify the parties’ agreement as previously stated, the Court should consider granting sole physical custody to [plaintiff] and otherwise enforcing this Agreement as written." The judge who entered the consent judgment left the family bench and the case was subsequently assigned to his successor. In 2023, Father sought to modify the judgment and for the children to continue to remain in Michigan and continue at their schools. Following an evidentiary hearing, the trial court granted Father’s motion. Mother was to continue exercising parenting time as she had done from 2021-2023. The trial court denied Mother’s motion for a stay pending appeal. The Court of Appeals also denied the stay, but the Michigan Supreme Court granted Mother’s request for a stay. During the pendency of the appeal before the Michigan Court of Appeals, the children were residing in and attending school in Texas. On appeal, Mother first argues that the trial court erred in finding either a change in circumstance and/or proper cause to modify the judgment.
"To establish a change of circumstances sufficient for a court to consider modifying a custody order, the movant must prove by a preponderance of the evidence 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 the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. To establish proper cause necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. As is the case with a change of circumstances, the appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child’s well-being." [Vodvarka v Grasmeyer, 259 Mich App 499, 509-514; 675 NW2d 847 (2003). Kuebler, ___ Mich App at ___; slip op at 16.] Following the parties’ divorce, Mother did not obtain her own residence in Michigan as the parties had agreed. Instead, she obtained a rental in Michigan, exercised parenting time at her mother’s one-bedroom apartment and did not exercise the amount of parenting time in Michigan as the judgment allowed. The trial court found, and the Court of Appeals affirmed, that Father became the children’s primary caregiver from 2021 - 2023. Father was also unable to find employment in his field in Austin, Texas, as anticipated in the agreement. The children, who were previously struggling with various aspects of their lives, had only recently made improvement. The trial court also found that Mother failed to take steps to ensure a smooth transition from Michigan to Texas, such as making arrangements for continued therapy, religious activities, and sports programs. The Court of Appeals found that the trial court did not err in finding both a change in circumstance and proper cause to consider a modification of the custody order. The Court further questioned the validity and enforceability of the provision which prohibited Father from challenging the move from Michigan to Texas on the basis of the children’s emotional or academic well-being. “Courts should not be bound by the parties’ stipulation limiting the meaning of statutory terms.” Kimmelman v. Heather Downs Mgt Ltd, 278 Mich App 569, 576; 753 NW2d 265 (2008). Mother next argued that Father’s petition should be barred by either judicial estoppel, invited error, or a lack of authority. Mother argued that Father asked the first judge to enter the consent order and then argued before the successor judge that the order barring modification was improper. The Court rejected this argument. While Father did consent to entry of a judgment that contained a provision that would limit the trial court’s scope of consideration for a post-judgment motion, the Court of Appeals found that provision was of “questionable validity.” Additionally, Father’s post-judgment motion did not just focus on the children’s academic and emotional well-being. Mother then argued that Father’s claims should be barred pursuant to the invited-error doctrine. ‘Invited error’ is typically said to occur when a party’s own affirmative conduct directly causes the error.” People v Jones, 468 Mich 345, 352 n 6; 662 NW2d 376 (2003). “Appellate review is precluded because when a party invites the error, he waives his right to seek appellate review, and any error is extinguished.” Id. In this case, Father was not the Appellant, so the invited-error doctrine would not apply. Additionally, Father did not argue that the first judge committed error, but instead, he sought a modification of the custody order. Finally, Mother argues that the successor judge lacked authority to modify the order and that Father was engaged in “judge-shopping.” Mother argues that, pursuant to MCR 2.613(B), the previous judge should have heard the post-judgment motion. The Court of Appeals rejected this argument. The parties’ case was properly transferred to the successor judge on order of the court. Since the judgment was modified, and not set aside, MCR 2.613(B) was not applicable. Mother next argued that the judgment was a contract, and in modifying the terms, the trial court “rewrote” the parties’ agreement. While a judgment is contractual in nature, that does not supersede the Child Custody Act which governs all custody disputes. Additionally, upon entry of the judgment, the parties acknowledged that the trial court would retain jurisdiction and could modify custody. Mother also argues that the doctrine of election barred the trial court from altering the judgment. “Under the doctrine of election, a person cannot accept and reject the instrument, or, having availed himself of it as to part, defeat its provisions in any other part.” In re Beglinger Trust, 221 Mich App 273, 276; 561 NW2d 130 (1997). Mother argued that Father should have been required to return all consideration he received under the judgment in citing Stefanac v Cranbrook Ed Community, 435 Mich 155, 163; 458 NW2d 56 (1990), however, Stefanac did not involve the modification of custody. Mother then challenged the trial court’s best interest findings. Amongst the factors challenged by Mother was Factor (C), the capacity and disposition of the parties involved to provide the child with food, clothing, medical care, or other remedial care. While Mother was residing in Texas, Father was the primary caregiver for the minor children and was the parent who took the children to the doctors while Mother did not have specific providers identified for the children’s relocation to Texas. The Court of Appeals affirmed the trial court’s best interest findings. The Court further affirmed the trial court’s findings with regards to the change of domicile factors pursuant to MCL 722.31(4). The trial court found that Mother did not demonstrate that the relocation would have the capacity to improve the life of the minor children even though the relocation to Texas would benefit her. MCL 722.31(4)(a). The Court of Appeals affirmed the trial court’s ruling and set aside the stay ordered by the Michigan Supreme Court. Three (3) weeks after the Court of Appeals issued this opinion, the Michigan Supreme Court issued their own order. Mikhaylov v Steele III, unpublished order of the Michigan Supreme Court, entered March 5, 2024 (Docket No. 166762). The Michigan Supreme Court issued another stay of the trial court’s August 13, 2023 order which modified custody/domicile. Beszka v. Beszka, unpublished per curiam opinion of the Court of Appeals, issued March 21, 2024 (Docket No. 365254, 367459). Oakland County Mother and Father, following their divorce, were awarded joint legal custody and a shared parenting time schedule with their minor child. Shortly thereafter, a GAL was appointed and the parties were sent to co-parenting counseling and therapy. The GAL later reported that Mother was telling mandatory reporters that the minor child was being abused at Father’s home, but there was no evidence, including interviews with the minor child, that the child was being abused. Mother also scheduled dance classes and when Father objected to the number of classes, Mother told the child that dance classes were reduced because of Father. Mother would also schedule events that would run into Father’s time which placed him in a compromised position of having a child upset they had to leave their event early. Mother also requested a police welfare check after the minor child reported to her that Father had asked her to “clean her room.” Based upon these reports, the trial court referred the matter to the Friend of the Court referee for a hearing. The referee recommended that Father demonstrated by clear and convincing evidence that it was in the child’s best interests to award Father sole legal custody and to modify the parenting time schedule whereby Mother would exercise parenting time on the weekend. The minor child was also to remain in her current school and in her current activities. Following a de novo hearing, the trial court adopted the recommendation of the referee. Subsequent to that ruling, Father sought to modify the child’s school and dance studio. The trial court conducted a hearing and granted the request to change school but not dance studios. On appeal, Mother challenged the trial court’s best interest findings. MCL 722.23. The referee found that Factor A favored Father. The referee concluded that while Mother loved the child, that the child’s feelings were becoming enmeshed with Mother to the point that they could not be distinguished. The referee found that this was dangerous for the minor child. On appeal, Mother argued that this application was wrong because the court “usually” finds this factor equal between the parties in a custody case. The Court of Appeals rejected Mother’s argument. The evidence demonstrated that the child would refer to “we” instead of “I” when describing events in her life. The counselor testified that this level of shared identity is a “learned behavior.” The Referee also found, with regards to Factor (B), that Mother’s love for the minor child needed to be re-directed so that the child could develop her own individual thoughts. Mother agued, unsuccessfully, that the referee erred in finding that she was the party who had predominantly taken the child to medical appointments and church and that Father, in removing the child from parochial school to private school could not result in a finding that Factor (B), the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any, favored Father. The Court of Appeals found that there was nothing in the record that demonstrated that the child’s educational needs were not being met or that Father was seeking to diminish the minor child’s involvement in religion and faith. Mother also directed the minor child to refer to Father by his first name, and to refer to her step-father as “Dad.” Factor (E) examines “the permanence, as a family unit, of the existing or proposed custodial home or homes.” The Referee found that this factor favored both parties equally. Mother argued that this factor should have favored her because the minor child had “issues” with her blended family on Father’s side. The Court of Appeals ruled, “Issues with AB’s relationship with her stepmother, many of which were fueled by defendant-mother’s conduct, are not relevant to the permanence of the family unit. The evidence suggests that both parties were in stable relationships with their new spouses, so the trial court did not err by finding this factor equal.” Factor (J) considers the “willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.” Mother argued that the referee erred in finding that this factor favored Father, but the Court of Appeals ruled that there was “overwhelming evidence” to support the referee’s finding. This included:
The Court of Appeals rejected Mother’s argument that the trial court improperly considered this evidence as Factor J prevents a trial court from considering “negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.” In this case, Mother fabricated the incident in order to justify her actions Finally, Mother challenged the findings regarding Factor (L) - any other factor considered by the court to be relevant to a particular child custody dispute. In finding that this factor favored Father, the referee found as follows: "Of concern to this court and relevant to this particular custody dispute is Defendant/Mother’s inability to recognize how dangerous her own behavior is to AB’s prediction of success as she continues to get older. It is clear from her testimony that Defendant/Mother loves this minor child and wishes to provide for her mentally and emotionally, however fails to see how her own actions will prevent her from doing so. The Defendant/Mother has proven that is she unable to navigate the appropriate channels. She uses semantics and technicalities to justify doing whatever it is she chooses to do without regard to the other parent in this situation. She has continued to undermine her own credibility with both her co-parenting actions/omissions and her evasive testimony regarding same. She forges ahead without concern for the consequences for [AB] that lie ahead." Mother argued that the evidence did not support such a finding, but that the referee was attempting to “vilify” her. The Court of Appeals rejected this argument and again highlighted the instances where Mother sought to drive a wedge between Father and the minor child. Finally, Mother challenged the trial court’s order which modified the minor child’s school. Mother argued that this change in school impacted the established custodial environment. The Court of Appeals ruled, “[Minor Child] does not look to her parents ‘for guidance, discipline, the necessities of life, and parental comfort’ at school. Changing AB’s school in no way impacted her parenting-time schedule. Therefore, this argument is without merit. The Court of Appeals affirmed the trial court’s ruling. Quint v. Quint, _____ Mich App _____, ______ NW2d ______, 2024 (Docket No. 368002). Ionia County Father and Mother shared legal custody of their minor child with parenting time as agreed by the parties. Father moved to modify custody alleging that Mother was interfering in the child’s education and medical care. Mother would accuse teachers and care providers of being racist. The trial court found that the proposed change would not alter the established custodial environment but still applied the clear and convincing standard. The trial court found that four (4) of the best interest factors favored both parties and six (6) factors favored Father. The trial court did not consider the minor child’s reasonable preference and indicated that neither party had asked the trial court to do so and contemplated whether interviewing the minor child would be appropriate. The Court of Appeals ruled that, in child custody proceedings (as with child welfare proceedings), the appellate court should apply the plain-error standard for claims that are not preserved for appeal. In many civil cases, the appellate courts apply a “raise or waive” standard. Tolas Oil & Gas Exploration Co v Back Servs & Mfg, LLC, __ Mich App __, __; __ NW2d __ (2023) (Docket No. 359090); slip op at 3. The plain error-standard is more relaxed and generally applies to criminal cases. "To show that a plain error occurred warranting reversal, the following four elements must be established on appeal: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) the plain error affected substantial rights, and 4) once a defendant satisfies these three requirements, an appellate court must exercise its discretion in deciding whether to reverse. Reversal is warranted when the plain, forfeited error seriously affected the fairness, integrity or public reputation of judicial proceedings." [In re Pederson, 331 Mich App 445, 463; 951 NW2d 704 (2020).] The Court of Appeals found that plain-error occurred in this case, and even though the matter was not preserved for appeal, it must be addressed by the Court. First, the trial court is required to consider the reasonable preference of a minor child - regardless whether the parent directs the trial court to do so. The Court further opined that, even though the trial court only modified legal custody and not physical custody, the law does not distinguish between legal and physical custody and therefore requires a trial court to consider the reasonable preference of a minor child even in cases where legal custody is being modified. The Court went on to find that the minor child's rights were substantially impacted by the trial court’s error. The child’s substantial rights were impacted by the trial court’s failure to consider the child’s reasonable preferences. The Court of Appeals vacated the trial court’s order and remanded the matter back to the trial court for a new custody hearing including updated information. A concurring opinion highlighted the fact that substantial rights of children are impacted in custody cases, and as a result, the “raise or waive” rule should not be applied in those matters. The concurring opinion also opined that it wished the Court had previously not ruled that children “as young as seven” are of sufficient age to express a reasonable preference, and instead, had empowered the trial court with the ability to exercise discretion as to when a child was of sufficient age to express a reasonable preference. Greenway v. Safronoff, unpublished per curiam opinion of the Court of Appeals, issued July 27, 2023 (Docket No. 364507). Grand Traverse County Mother had primary physical custody of the minor child with Father having consecutive weekends during the school year and alternating weeks during the summer. Mother worked at Home Depot in Traverse City. She accepted a transfer to a Home Depot in Allen Park with the same hourly pay but for more hours. Mother filed a motion to change the child’s domicile. Mother accepted the new job and moved to Allen Park. Mother ultimately enrolled the minor child in a Dearborn school. After Father’s attorney filed an appearance, the referee adjourned the hearing from March to May citing a conflict of interest that would expire in April (the referee had previously worked with Father’s attorney and the two-year conflict window would end in April). The hearing was then adjourned again to June because Mother’s attorney was unavailable. While the change of domicile hearing was pending, Father filed his own motion to change custody, parenting time, and child support. Following a hearing before the referee, it was recommended that Mother’s motion to change domicile be denied but granted Father’s motion to change custody. The trial court, following a de novo hearing, adopted the referee’s findings. On appeal, Mother argues that the referee should have been disqualified based upon their previous employment with Father’s attorney pursuant to MCR 2.003(C)(1)(e). “[T]o avoid delaying trial and inconveniencing the witnesses, all motions for disqualification must be filed within 14 days of the discovery of the grounds for disqualification[,]” and “[i]f the discovery is made within 14 days of the trial date, the motion must be made forthwith.” MCR 2.003(D)(1)(a). Mother did not file a motion to disqualify pursuant to MCR 2.003(D)(1)(a) and the Court of Appeals rejected Mother’s argument. Mother then challenged the referee’s findings regarding the change of domicile. While the move had the potential to increase Mother’s income, and also decrease her living expenses (as her rent in Dearborn was less than her rent in Traverse City), the monetary benefit to the minor child did not outweigh the negative impact the child would have by spending less time with Father and being removed from his community and friends. Mother also challenged the referee and trial court’s findings regarding Father’s motion to change custody and parenting time. "Mother appears to argue on appeal that NS only had an established custodial environment with mother because mother had primary physical custody under the court’s previous custody order. However, mother’s focus on the mere fact that NS resided with her most of the time fails to address the relevant standard under the statute, which considers whether 'over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort[,]' considering the 'age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship.' MCL 722.27(1)(c)." The trial court’s ruling was affirmed. The Michigan Supreme Court in Greenway v. Safronoff, unpublished order of the Michigan Supreme Court, entered [April 5, 2024] (Docket No. 166072), issued an order that reversed the Court of Appeals and vacated the trial court’s ruling which denied Mother’s request to change the minor child’s domicile. "MCL 722.28 directs appellate courts to affirm orders and judgments in child custody disputes 'unless the trial judge made findings of fact against the great weight of evidence. . . .' Regarding the plaintiff’s motion to change the child’s legal residence, the evidence clearly preponderates toward the conclusion that the defendant’s midweek contacts with the child are occasional, at most. The trial judge’s findings that MCL 722.31(4)(a) and (4)(c) favor the defendant are therefore against the great weight of the evidence. See Rains v Rains, 301 Mich App 313 (2013); see also Fletcher v Fletcher, 447 Mich 871 (1994)." The Supreme Court vacated the trial court’s order and, on remand, directed that the trial court to consider updated information and to expedite the matter. A dissenting opinion was authored which would have denied the leave to appeal finding that the matter was fact intensive and that there was no legal error to warrant vacating the trial court’s prior ruling. Parenting Time Sangji v. Bendapudi, unpublished per curiam opinion of the Court of Appeals, issued January 11 2024 (Docket No. 361509). Washtenaw County Father and Mother were both physicians. Mother obtained an offer to work for the University of Michigan in Ann Arbor, Michigan. Father also applied for and received an offer to work for the University of Michigan but believed that Mother interfered in his negotiations with the university by accepting her offer first. Mother gave birth to the parties’ minor child in Ann Arbor. Father had rejected Michigan’s offer and returned to Boston. The parties dispute their agreement to relocate with Father claiming that Mother promised to return to Boston after working for a year in Ann Arbor and Mother claiming that Father was to return to Ann Arbor after working in Boston for a year. Wife ultimately petitioned for a divorce in Michigan and alleged that Father was verbally abusive towards her. Father denied the claims. The trial court conducted a 19-day trial. Both parties appealed the trial court’s judgment. Father appealed the trial court's restrictions that were placed on his ability to travel with the minor child. Trial courts are authorized to impose reasonable restrictions on a parties’ parenting time provided that the restrictions are in the minor child’s best interest. Kaeb v Kaeb, 309 Mich App 556, 569; 873 NW2d 319 (2015). Mother’s custody expert testified that parenting time exchanges were stressful for children and that very young children (such as the minor child in this case) had a harder time coping with that stress. The trial court awarded Father parenting time that took place in both Ann Arbor as well as Boston. Father was to exercise his parenting time in Boston and could travel with the minor child throughout Michigan. The Court of Appeals found that these restrictions were in the minor child’s best interest as it would reduce the stress on the minor child. The Court also affirmed the trial court’s travel restrictions within each state. It was appropriate for Father’s time to be exercised in Boston since the child would already be traveling from Michigan to Massachusetts. By contrast, when Father exercised his parenting time in Michigan, the minor child could travel more throughout the state since he would already be near his home base. Mother appealed the trial court’s best interest findings with regards to the parenting time schedule ordered by the court. First, Mother objects to the trial court’s findings under Factor C: “capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.” MCL 722.23(c). The GAL testified that she suspected that the minor child was subjected to a full-body search by Mother after the child returned from Father’s care. Mother also did not follow the pediatrician's recommendations to handle sleep related issues for the minor child. The Court of Appeals found that the finding that Factor C favored Father was not against the great weight of the evidence. Kleinfeldt v. Stern, unpublished per curiam opinion of the Court of Appeals, issued April 18, 2024 (Docket No. 365506, 366777). Oakland County Mother and Father have one (1) minor child. Mother resides in Florida. Father resides in Michigan. After Mother became pregnant, Father sold his home in Michigan and sought to purchase a home in Florida. The parties lived in a rental home in Michigan. After the minor child was born, the parties engaged in settlement discussions regarding custody and parenting time as the parties were not married. The parties reached an informal agreement but an order was not entered after Father filed his custody action. At the same time, Mother expressed frustration with the amount of time Father was away from the home after the birth of the minor child. The parties and minor child traveled frequently together and apart between Florida and Michigan around the time the custody complaint was filed. After the parties’ relationship ended, Mother sought summary disposition of Father’s custody case alleging that Michigan did not have jurisdiction pursuant to MCR 2.116(C)(4). The trial court and Florida court conducted a UCCJEA conference. Following that conference, the trial court denied Mother’s motion for summary disposition. The trial court found that the minor child had significant connections to the State of Michigan. The trial court conducted a trial on Father’s custody complaint. Following a seven (7) day trial, the court found that the minor child had an established custodial environment (“ECE”) with both parents, awarded the parties joint legal and joint physical custody, ruled that the minor child’s domicile was in Michigan, awarded the parties equal parenting time to take place in two (2) week blocks, denied Mother’s request for attorney fees, and referred the matter of child support to the Friend of the Court. Mother sought for and received a stay of the opinion and order issued on March 10, 2023. Father sought a show cause against Mother for removing the minor child to Florida and not exchanging the minor child at the airport. Mother argued that the trial court could not enforce the parenting time in either the temporary order or the March 10, 2023 order as the Court of Appeals had stayed enforcement. The trial court denied Father’s motion to show cause. Father filed a motion to enforce parenting time which was similarly denied by the trial court but the request for makeup parenting time was reserved. The Court of Appeals granted leave on the limited issue of whether the minor child had an established custodial environment with both parents. The Court of Appeals also vacated the trial court’s ruling awarding the parties two (2) week blocks of parenting time. The Court also rendered the stay moot. The trial court was to issue an interim parenting time order pending the outcome of the appeal. An order was subsequently issued by the trial court which provided Father with parenting time on Father’s Day and additional parenting time from July 2023 through September 2023. Additionally, a Uniform Child Support (“USO”) order was entered which required Father to pay $5,474/month in child support. The USO was entered on July 5, 2023 but was subsequently removed on July 10, 2024 as it contained “confidential calculations” of the parties’ income. A revised USO, which was identical to the July 5, 2023 USO but omitted the calculations, was entered on July 17, 2024. After considering the parenting time factors under MCL 722.a(7), the Court of Appeals previously found that the trial court’s ruling that the parties exercise equal parenting time in two (2) week blocks was an abuse of discretion. As an interim parenting time order, the trial court ruled that the minor child would, “fly from Florida to Michigan and back approximately every three weeks, rather than every two weeks, for a one-week stay in Michigan with [Father].” The Court of Appeals ruled that the trial court has to consider a parenting time schedule that places the burden of travel on the parents and not on the minor child. The trial court’s interim parenting time orders were vacated and the matter was remanded back to the trial court to consider a more appropriate parenting time schedule. Child Support Sangji v. Bendapudi, unpublished per curiam opinion of the Court of Appeals, issued January 11 2024 (Docket No. 361509). Washtenaw County Father and Mother were both physicians. Mother obtained an offer to work for the University of Michigan in Ann Arbor, Michigan. Father also applied for and received an offer to work for the University of Michigan but believed that Mother interfered in his negotiations with the university by accepting her offer first. Mother gave birth to the parties’ minor child in Ann Arbor. Father had rejected Michigan’s offer and returned to Boston. The parties dispute their agreement to relocate with Father claiming that Mother promised to return to Boston after working for a year in Ann Arbor and Mother claiming that Father was to return to Ann Arbor after working in Boston for a year. Wife ultimately petitioned for a divorce in Michigan and alleged that Father was verbally abusive towards her. Father denied the claims. The trial court conducted a 19-day trial. Both parties appealed the trial court’s judgment. Father challenged the trial court’s inclusion of Mother’s child care expenses. “When a parent has an ‘established child care pattern and can verify that they have actual, predictable and reasonable child care expenses,” the trial court must “use the actual costs in the calculation.’” 2021 MCSF 3.06(A)(1). Mother’s responsibilities as a burn surgeon and a researcher required comprehensive child care for the minor child including in-home care. Father argues that the child support formula does not apply to in-home care and that Mother’s own mother lived at the home and provided childcare to the minor child. The Court of Appeals rejected Father’s argument. "The subsection at issue establishes that when 'calculating child care expenses,' the trial court must ordinarily presume that the parents are following the court’s parenting-time orders. 2021 MCSF 3.06(A)(3). In context, that means that the trial court should only calculate a childcare obligation on the basis of childcare that would be required when the child was under a particular parent’s care. It then provides an exception to that presumption: 'However, if a child care provider requires payment to retain a slot for a child without regard to whether the child actually attends, include those additional costs.' 2021 MCSF 3.06(A)(3). Nothing within this exception refers to childcare in an institutional setting. The exception instructs the trial court to include the 'additional costs' for childcare without regard to whether the child “attends” the childcare if the 'child care provider requires payment to retain a slot.' 2021 MCSF 3.06(A)(3). Moreover, a child can 'attend' childcare in a variety of settings, which includes his or her own home. Finally, the phrase “requires payment” cannot be read to limit the exception to those instances in which the childcare provider has a formal requirement. There need only be evidence that the childcare provider would be unable or unwilling to retain the “slot” for the child’s care without the extra payment." The Court of Appeals affirmed the trial court’s ruling incorporating Mother’s nanny costs into the child support computation. Mother also appealed the trial court’s child support order arguing that the trial court should have retroactively modified support and set the effective date to the filing of the complaint. "A support order—whether part of a judgment or as an order in a domestic relations matter—is a judgment with all the attributes of a judgment of this state on and after the date it is due. MCL 552.603(2). The support ordered in a child support order may not be retroactively modified except to the date of notice in the petition to modify an existing support order. Id. Notably, the Legislature provided that the prohibition against retroactive modification did not apply to an 'interim support order or a temporary support order.' MCL 552.603(3). In this case, there was no interim or temporary support order, which could be modified consistent with MCL 552.603(3); the order in February 2022 was the first order compelling the payment of child support and thus there was no earlier petition to modify support. Although the trial court suggested that it had the discretion to award retroactive support, it did not have that authority under MCL 552.603(2). Accordingly, the trial court did not err when it refused to order defendant to pay support retroactive to before the date of the first order for child support." Thomas v. Thomas, unpublished per curiam opinion of the Court of Appeals, issued February 22 2024 (Docket No. 366112). Van Buren County Mother and Father had four (4) minor children at the time of their divorce case. Father owned and operated his own excavating business and Mother was a stay-at-home parent. The trial court ordered Father to deposit $1,600/month into the parties’ joint account and awarded Mother exclusive use of the marital home. After the trial (which spanned a year), the trial court issued an oral ruling regarding property disputes and Father’s income - but a judgment of divorce was not entered. Seven (7) months later, without a judgment having been entered, Father sought to modify custody which the trial court denied. A year after the trial concluded, a judgment of divorce was entered. On appeal, the Court of Appeals concluded that the trial court considered only a few of the imputation factors when imputing income to Mother. “The court clearly did not go through each factor listed by 2021 MCSF 2.01(G)(2) and did not articulate how that factor applied or state that the factor did not apply, as required by 2021 MCSF 2.01(G)(4)(c).” The trial court’s imputation of Mother’s income was vacated and remanded back to the trial court for findings consistent with MCSF 2.01(G)(2). During the pendency of the divorce action, while not titled as “child support” payments, the $1,600/month deposits were used to provide care for the minor children. “[T]he label given the payments is not dispositive. The MCSF allows a deviation from the strict application of the support calculations when the trial court has ordered one spouse to make payments that reduced his or her income available for child support, see 2021 MCSF 1.04(E)(12).” The Court of Appeals found that the trial court erred in not granting Father’s request for a credit for the support payments made during the pendency of the action when it ordered Father to pay back child support. The child support order was vacated and remanded back to the trial court for recalculation.
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Tyler Martinez (Oakland)
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