BY RYAN O'NEIL (OAKLAND)Custody Barretta v. Zhitkov, _____ Mich App _____, ______ NW2d ______, 2023, (Docket No. 364921, 365078). Oakland County Mother and Father have one minor child. Pursuant to the parties’ 2016 judgment, they were awarded joint legal and joint physical custody of the minor child with a week-on/week-off parenting time schedule. The parties had a contentious post-judgment co-parenting relationship and in 2022 a guardian ad-litem (“GAL”) was appointed.
The Court of Appeals ruled that the trial court erred by not first holding an evidentiary hearing before changing custody. While the orders were titled as “temporary,” the Court of Appeals found that these orders had the practical effect of modifying Mother’s custody and parenting time. The trial court also failed to make findings as to change in circumstance/proper cause, the established custodial environment, or best interest findings. MCR 3.207(B) essentially permits a trial court in a domestic-relations matter to issue an ex parte order regarding child custody if the court is satisfied that there is a threat of imminent harm. But “ex parte orders issued under MCR 3.207 that affect child custody must comply with specific notice requirements.” Johnson v Johnson, 329 Mich App 100, 130 (2019)
The Court of Appeals found that the allegations in the ex parte motion had existed for a period of time (and were not those warranting emergency relief) and that the trial court did not comply with the notice requirements of MCR 3.207. The trial court also modified custody without first conducting a hearing. The Court also rejected the trial court’s suspension of Mother’s parenting time as the trial court did not make any findings that could attribute a threat of harm to the child solely to Mother. The Court of Appeals vacated the trial court’s interim parenting time orders and remanded the matter back to the trial court to complete the evidentiary hearing. The Court of Appeals did not restore Mother’s custodial rights but instead continued with an order from June 1, 2023, which provided her supervised parenting time once a week. In doing so, the Court ruled: Imposing an abrupt change on AZ without first requiring the trial court to hold and complete the evidentiary hearing would not advance the Legislature’s goal of minimizing unwarranted and disruptive changes in AZ’s custody. See Fletcher v Fletcher 447 Mich 871, 889; 526 NW2d 889 (1994). Ordering a change in custody without being apprised of the current circumstances would be imprudent and could potentially be contrary to AZ best interests. Id. It is in AZ’s best interests for the trial court to expedite its consideration and resolution of this case. Eby v. Eby, unpublished per curiam opinion of the Court of Appeals, issued October 26, 2023 (Docket No. 364709). Branch County Mother and Father had one (1) minor child, and after initiating a divorce action, converted the matter to a custody case and entered a consent judgment whereby they would continue to reside together and share legal and physical custody of the minor child. Mother subsequently filed for divorce and alleged that Father sought to alienate the child from her. A forensic psychologist, retained by the parties, recommended “that the trial court order defendant to vacate the home immediately, stop all communications with the child, and pay $15,000 for plaintiff and the child to attend an intensive, four-day reunification program called Turning Points for Families (TPFF).” Following a hearing, the trial court found that the minor child had an established custodial environment with Father only, that the majority of the best interest factors favored Father and awarded the parties joint legal custody with Father having sole physical custody. The trial court then awarded Mother exclusive use of the marital home for a two (2) month period during which Mother would exercise primary custody of the minor child in order for the child to “reacquaint” herself with Mother. The trial court also ordered that each party would pay their own attorney fees. First, Mother argued that the trial court erred in conducting its own internet research in questioning the forensic psychologist. The trial court asked the psychologist about articles indicating that the theory of “parental alienation” had been debunked, which the psychologist testified to. The Court of Appeals found that, to the extent this constituted error, the error was harmless. The Court of Appeals did reject the trial court’s method for analyzing the statutory best interest factors. Rather than making specific and detailed findings regarding each of the best interest factors, the trial court adopted the “law, logic, and rationale” of the Father’s best interest analyses. “Adopting wholesale, without further comment, a party’s best-interest analysis in a pretrial brief does not satisfy a trial court’s obligation to ‘consider and explicitly state its findings and conclusions with respect to each of [the best-interest] factors.’” Foskett v Foskett, 247 Mich App 1, 9; 634 NW2d 363 (2001). Branham v. Branham, unpublished per curiam opinion of the Court of Appeals, issued November 30, 2023 (Docket No. 366088, 366798). Wayne County Father was charged with two counts of felony-firearm for pointing a loaded gun at Mother. While Father was being held, Mother moved in secret with their minor child to Indiana. A consent judgment was entered that provided the parties with joint legal custody and primary physical custody to Mother. Father was to exercise a specific and graduated parenting time schedule including supervised parenting time and electronic parenting time. The judgment also provided that the minor child’s domicile would be changed from Michigan to Indiana, but, upon resolution of Father’s criminal case, the matter could be modified without having to show a proper cause and/or change in circumstance. At Father’s criminal case, he was found not guilty. The judge did not find Mother to be credible. Father sought to modify custody, parenting time, and domicile. Following a bench trial, the trial court awarded the parties’ joint legal custody with the child’s domicile returning to Michigan. The trial court entered a graduated parenting time schedule with Father but Father argued that the trial court did not specify what Mother’s schedule would be once the minor child relocated to Michigan. Mother also filed a motion requesting a stay of the proceedings. However, the trial court entered an amended opinion and order that clarified the parenting time provisions which essentially provided Mother with the entirety of the summer break and alternating weekends of parenting time during the school year. On appeal, Mother argued that the trial court erred in relying upon MCR 2.612(A)(1) to modify the previous oral ruling and written opinion. This rule is intended to remedy: Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it. “The purpose behind MCR 2.612(A)(1) is to make the lower court record and judgment accurately reflect what was done and decided at the trial level.” Central Cartage Co v Fewless, 232 Mich App 517,536 (1998). The Court of Appeals found that the trial court’s amended ruling went beyond correcting what the original oral ruling was, and instead, imposed a brand new parenting time schedule. Under this schedule, for the vast majority of the year, defendant was granted parenting time a mere two overnights in every two-week period, whereas she would exercise parenting time 9 or 10 overnights under the trial court’s original ruling, depending on whether plaintiff’s midweek parenting time occurred every week or only on alternating weeks. And although the amended order granted the defendant most of the summer-break parenting time, that was little more than she would have exercised under the originally-stated schedule. The Court of Appeals also found that the trial court erred in not independently assessing Mother’s credibility, and instead, based her credibility on the criminal case. Making a determination under the Child Custody Act is “highly fact intensive.” The Court of Appeals found that “The questions before the trial court were entirely distinct. As the fact-finder in this case, the trial court was ‘obligated to determine the weight and credibility of the evidence presented.’ Wright v Wright, 279 Mich App 291, 299; 761 NW2d 443 (2008).” While the Court found the trial court committed error, it did not find that the instances where the trial court applied the criminal court’s credibility findings of Mother warranted reversal. The Court of Appeals then examined the trial court’s best interest findings. With regard to Factor (D), the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity, the trial court found that this factor favored both parties equally, and did so without offering any rationale or reason in support of this conclusion. The evidence, however, demonstrated that the minor child lived predominantly with Mother and her parents in Indiana. Factor (D) should have favored Mother. With regards to Factor (K), domestic violence, the Court found that the trial court erred in relying entirely on the judge’s finding in the criminal case. The trial court should have made its own independent determination on the presence of domestic violence in this case. The Court also made this finding regarding the trial court’s findings: Although the trial court’s succinct, unexplained findings with respect to many of the factors—including factor (j)—leave much to be desired, the record with respect to the other factors discussed earlier was fairly clear, often undisputed, and sufficient for this Court to review the trial court’s findings under the appropriate standard of review. The Court vacated the trial court’s amended opinion and order and remanded back to the trial court. Parenting Time Craig v. Becker, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2023 (Docket No. 364931). Livingston County Prior to the initiation of an action, the Mother and the child lived together at Mother’s parents’ home. Father exercised weekday parenting time twice per week and alternating weekends of overnight parenting time. After both parties filed complaints, they agreed to joint legal custody but did not agree to parenting time or physical custody. The trial court entered an interim order providing Father with alternating weekend parenting time and one (1) mid-week overnight visit along with two (2) mid-week overnight visits when he was not exercising weekend parenting time. Prior to trial, Father sought to limit the witnesses that Mother could call arguing that she should be limited to the witnesses identified in her initial witness list and not the witnesses identified in her supplemental witness list. The trial court provided additional time for discovery on the witnesses but declined to limit Mother’s ability to call those witnesses. Mother also redacted text messages that Father had sought and claimed that some had been deleted to “free up storage.” The trial court declined to order an examination of Mother’s phone but did reserve the option that, if a proper showing could be made at trial, that a negative inference could be made against Mother that the texts displayed “vitriol against Father.” Following trial, the trial court awarded the parties’ joint legal custody and made the interim parenting time schedule a final parenting time schedule. The Court of Appeals affirmed the trial court’s best interest findings. Father challenged the trial court’s findings regarding 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. Mother was a Catholic who desired to have the child raised Catholic. Father would take the minor child to nondenominational churches without notifying Mother. Additionally, the evidence demonstrated that Mother was more involved in helping the child with school work. The Court of Appeals found that evidence supported the trial court’s finding. Dekarske v. Lopez, unpublished per curiam opinion of the Court of Appeals, issued December 28, 2023 (Docket No. 366704). Ingham County Prior to the parties’ relationship, Father had been convicted of fourth-degree criminal sexual conduct. Although he disclosed the conviction to Mother at the time they were dating, he misrepresented the facts. Father had sexually abused his three-year old half-sister when he was 17 years old. Mother subsequently discovered the true nature of the offenses. She was concerned that Father had abused their minor child and Mother’s child from a previous relationship, took photographs of the minor children and collected three (3) USB drives and delivered them to the police and CPS. The police tried to contact Father approximately 60 times to obtain the password for the drives and that he refused. The detective testified there was no probable cause to obtain a warrant to search the drives. The police did interview Mother’s child from another relationship who did not disclose any sexual assault or abuse. Mother testified that the parties’ child exhibited behaviors she found suspicious including reaching his hands in front of his pants and becoming rigid when Mother would try to change his diaper. Following trial, the trial court awarded the parties’ joint legal custody and ordered that Father was to have parenting time, that such parenting time would be supervised, but suspended his parenting time until such a time as he surrendered the contents of the USB drives. On appeal, the Court of Appeals found that the trial court failed to find by clear and convincing evidence that Father’s exercise of supervised parenting time endangered the minor child. [A] child has a right to parenting time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the child’s physical, mental, or emotional health.” See Butters v Butters, 342 Mich App 460, 472; ___ NW2d ___ (2022), vacated in part on other grounds 510 Mich 1096 (2022). A trial court commits clear legal error when it suspends a parent’s parenting time without making “the requisite findings regarding the effect of parenting time with [the parent] on [the child’s] physical, mental, or emotional well-being.” Barretta v Zhitkov, ___ Mich App ___, ____; ___ NW2d ___ (2023) (Docket Nos. 364921, 365078); slip op at 11. The trial court erred by failing to identify what harm would come to the minor child if Father were to exercise supervised parenting time. The contents of the drive would be relevant to a determination as to whether Father should exercise unsupervised parenting time, but there was no finding that any threat of harm existed to the minor child if Father exercised supervised parenting time. The condition that Father’s supervised parenting time be suspended until he surrenders the contents of the USB drive was vacated. Child Support Beachum v. Beachum, unpublished per curiam opinion of the Court of Appeals, issued December 14, 2023 (Docket No. 362895). Oakland County The parties’ judgment of divorce required that any dispute involving calculation of child support once Defendant’s 2020 income was provided would be arbitrated. After the information was provided, the parties did not agree to the calculation. Defendant sought to have the matter sent to arbitration. Plaintiff sought to have the calculation enforced by the trial court. The trial court ruled that the judgment and agreement to arbitrate prohibited the arbitrator from deviating from the Michigan Child Support Formula (“MCSF”) and limited the scope of arbitration to disputes involving the factors of the MCSF. Under MCL 691.1686(2), trial courts have the authority to decide whether an agreement to arbitrate exists, and, if so, whether the controversy is subject to arbitration under the terms of that agreement. The arbitrator’s scope of authority depends on the terms of the parties’ arbitration agreement. Tinsley v Yatooma, 333 Mich App 257, 262; 964 NW2d 45 (2020). … To determine the arbitrability of a matter, the court must examine (1) whether the parties’ contract has an arbitration provision, (2) whether the disputed issue is arguably encompassed within the arbitration clause, and (3) whether the contract terms expressly exempt the dispute from arbitration. Registered Nurses, Registered Pharmacists Union v Hurley Med Ctr, 328 Mich App 528, 536; 938 NW2d 800 (2019). The parties’ judgment provided the following regarding child support, “[a]ny dispute over the calculation of child support upon receipt of Defendant Husband’s income information shall be arbitrated by David Mendelson.” The Court of Appeals found that the trial court erred in ruling that the arbitrator was prohibited from considering a deviation from the MCSF. The Court found that, just by agreeing to compute child support pursuant to the MCSF did not, in and of itself, prohibit the arbitrator from considering a deviation. Gjergji v. Gjergji, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2023 (Docket No. 366459). Oakland County The parties had two minor children. Mother filed for divorce and sought an award of sole custody and alleged that Father had abused her. Father filed a counterclaim and sought joint custody. Following a two day trial, the court awarded Mother sole legal custody of the minor children, ordered Father to exercise supervised parenting time, and ordered Father to pay child support in the amount of $1,436/month. On appeal, Father argued that he had testified that while he did earn $1,000 in cash per week working for a family automobile business, that the business had slowed and he was no longer earning that amount. The Court of Appeals rejected Father’s argument as both the testimony elicited plus financial statements evidenced that Father was depositing $3,400 to $6,000 per month into the parties’ joint bank accounts. The Court found that the trial court correctly calculated child support pursuant to MCL 552.605. Spousal Support Marick v. Marick , unpublished per curiam opinion of the Court of Appeals, issued December 21, 2023 (Docket No. 363945). Calhoun County Husband and Wife married in 1991. Husband was 58 years old and Wife was 44. Husband had worked for Post Cereal for over 20 years prior to marrying Wife. Wife worked until 1994 when her job was eliminated and, after, worked part-time/seasonal jobs. In 2003, Husband’s mother died and Husband inherited a family account that he intended to be used for his children. Husband filed for divorce in 2021 and was 88 years old. Wife was 74 years old. Following a two-day trial, the trial court ordered Husband to pay alimony in gross totalling $30,000 in monthly installment payments of $500. The trial court made findings regarding the spousal support factors pursuant to Myland v Myland, 290 Mich App 691, 695; 804 NW2d 124 (2010). The Court of Appeals found that the trial court erred in excluding the amount of Husband’s income that he would derive from his IRA. The trial court identified his social security and dividends, but did not consider the annual income from the IRA. The Court found that “even if the corpus of the IRA was plaintiff’s separate property, the income from the IRA was a marital asset that both parties enjoyed during the marriage.” The trial court’s order regarding alimony was vacated and remanded back to the trial court. Contempt Josey v. Hayes, unpublished per curiam opinion of the Court of Appeals, issued October 26, 2023 (Docket No. 365275). Kalamazoo County The parties were the parents of one minor child. The parties entered a consent judgment that awarded them joint legal custody with Defendant having primary physical custody and Plaintiff having parenting time twice per week. Plaintiff filed post-judgment motions and alleged that Defendant was interfering in Plaintiff’s parenting time. After a hearing, the trial court concluded that the minor child was scared of Plaintiff and ordered parenting time with conditions. At an adjourned show cause hearing, Defendant’s counsel indicated that counsel was served but that Defendant was not properly served. Plaintiff’s counsel argued that Defendant had not appeared for any of Plaintiff’s parenting time since the prior hearing. The trial court found Defendant in contempt, ordered Defendant to serve 30 days in jail, and upon Defendant’s arrest, Plaintiff would be awarded temporary sole legal and physical custody of the minor child. A written order was never entered. Approximately 18 months later, Plaintiff filed another show cause motion. A successor judge entered an order memorializing the ruling from the prior show cause hearing. The Court of Appeals found that Defendant was not personally served, as required by MCR 2.107(B)(1) and/or MCL 600.1968(4). Personal service on a party is a requirement for a sentence of incarceration for criminal contempt. Procedural Jaiyeola v. Jaiyeola, unpublished per curiam opinion of the Court of Appeals, issued December 21, 2023 (Docket No. 364963). Kent County Wife and Husband emigrated to the United States from Nigeria. The parties had three children. Husband notified Wife that he was taking a job with Apple in California and moving there with the two youngest children. Wife filed for divorce. The trial court conducted a trial and awarded Wife sole legal and physical custody and ordered Husband to pay child support and spousal support. First, the Court of Appeals rejected Husband’s claim that the trial court lacked personal jurisdiction. Husband lived in Michigan while married to Wife and returned while visiting from California. This satisfied the requirement of long-arm personal jurisdiction. There was also evidence that, when the process server came to Husband’s home, the door was answered by the child. Husband, appearing in the background, indicated that he was the defendant and was refusing to accept service. The process server left the summons and complaint on the floor and indicated that Husband was served. This satisfied the requirement for personal service. Second, the Court of Appeals rejected Husband’s argument that he was denied due process when he requested an adjournment of the trial date, and the request was denied. Husband failed to demonstrate good cause to adjourn, and it was not improper for the trial court to deny the request to adjourn. MCR 2.503(B)(1). Finally, Husband argues that the trial court improperly considered evidence that was transmitted in conjunction with an offer of settlement. Husband “argued that the trial court could not properly consider his current salary because he submitted the documentation establishing his salary as part of negotiations to settle the case.” MRE precludes statements that are made during settlement negotiations from being admitted in an effort to prove liability, however, MRE 408 does not preclude evidence from being introduced which would otherwise be discoverable. MCR 2.302(A)(1) MCR 3.206(C)(2) both required Husband to disclose his income, so the fact that he included the documents with settlement negotiations does not prevent them from being admissible during the trial. Embryo Markiewicz v. Markiewicz, unpublished per curiam opinion of the Court of Appeals, issued December 7, 2023 (Docket No. 363720). Macomb County This is the second appeal to the Court of Appeals involving an award of frozen embryos. In Markiewicz v. Markiewicz, unpublished per curiam opinion of the Court of Appeals, issued March 24, 2022 (Docket No. 355774), the Court of Appeals ruled as follows: 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 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 a number of 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 make a determination 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:
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. On remand, the trial court conducted a hearing. Only the parties provided testimony. Wife, who was 44 years of age at the time of the hearing, testified that if she was awarded the embryo, she would have it implanted into her and would waive any financial obligations from Husband. Husband testified that he does not want any more biological children with a woman he is now divorced from and that, if he was awarded the embryo, he would donate it to science or discard it. Husband also testified that nothing precludes Wife from having other children with donor eggs. The trial court ruled that the embryo was marital property and weighed the relevant factors. The trial court considered the fact that the embryo was created using Husband’s sperm and Wife’s sister’s eggs - so the embryo was more Husband’s than Wife’s. The trial court ruled that it was more equitable to award the embryo to Husband. First, the Court of Appeals rejected Wife’s argument that the Constitutional amendment contained within Const 1963, art 1, § 28 has no bearing on this case. Wife argues that Section 28 vested both Husband and Wife with fundamental rights regarding childbirth, but the matter in this case involved the assignment of an embryo which was a property issue. Next, the Court of Appeals rejected Wife’s argument that the trial court did not adopt the blended approach (referenced above) by finding that there was no binding contract between the parties. There was a contract between the parties and the embryo facility, but no agreement/contract by and between the parties as to what would happen with the unused embryo in the event of a divorce. The Court also found that the contract with the embryo facility required mutual consent of the parties to make determinations regarding the embryo and that one party would be prevented from making a unilateral decision. The Court further affirmed the trial court’s analysis of the Sparks factors. A dissenting opinion would have awarded the embryo to Wife. The dissent found that the parties had a contract with the IVF facility and that both parties agreed that it was their intention to have the embryos ultimately transferred back to Wife’s uterus “at a later cycle.” The dissent accuses the majority of ignoring this provision and instead, focusing on the provision that addressed assignment of the embryo in the event of divorce. The dissent also would remand back to the trial court to consider the reproductive freedom amendment contained within Const 1963, art 1, § 28.
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Tyler Martinez (Oakland)
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