Attorney Terry Bankert is a Divorce attorney practicing in Flint Mi USA. As a Flint Family Law Lawyer Bankert litigates issues such as parenting time, child support and child custody. Often parents seeking a change in custody do not realize they must show a change in circumstances since the last order. The following case demonstrates this need.
[The material here is altered for media Presentation consult with an atorney before your rely on its content.With some delitions and spacing my comments are in CAP or brackets.Terry bankert]
On WFLT 1420 AM Radio.I present every Saturday a show " Know the Law". It is a call in show 9 am to 9:30, 810-239-5733. The core of the program is Family Law as explained through the lens of a recent high court decision. Two things are accomplished. 1. I am marketing 2. You have another barier reduced to understanding and protecting your rights in A Family Law situation.
Issues:
Child custody; Whether the trial court properly denied the defendant-father's change of custody motion; [A good parent knows what is best for their child! But court proceedings are an organization of rules by which society makes decisons. Implicit in understanding these rules is knowledge of the doctrines they stand on.
DOCTRINE: We want stability in the lives of children.
RULE: The person asking for a change in custody of a child must show something new since the last court order was entered not just rehash old stuff.This new stuff must have great impact of the childs life.]
Burden of proof; MCL 722.27(1)(c); Vodvarka v. Grasmeyer; Killingbeck v. Killingbeck; The "best interest" factors (MCL 722.23); Schlender v. Schlender;
Standard of review; Fletcher v. Fletcher; Whether a change in economic circumstances alone is sufficient to warrant revisiting a previously entered custody order; Dempsey v. Dempsey;
Whether a change in the child's grades demonstrated a change in circumstances
Court: Michigan Court of Appeals (Published) [The legislature votes on statutes, High Courts Publish Cases to explain how to use statutes, each become the law of the land.]
Case Name: Corporan v. Henton
e-Journal Number: 42059
Judge(s): K.F. Kelly, Servitto, and Owens
DAD DID NOT MEET THE CHANGE OF CIRCUMSTANCES TEST
Concluding the defendant-father failed to make the required threshold showing of a change in circumstances to support his motion for change of custody,
THE LOWER COURT DID IT RIGHT
the court held the trial court employed the proper procedure by first determining whether a proper cause or a change in circumstances was established by a preponderance of the evidence,
FINANCIAL PROBLEMS OF CUSTODIAL PARENT ARE NOT A "CHANGE IN CIRCUMSTANCES"..BUT SHOULD BE USED IN CHILD SUPPORT CALCULATIONS
properly ruled negative financial changes are more appropriately addressed in a child support context rather than a change of custody motion,
DAD FAILED THE TEST
and correctly held defendant failed to show a proper cause or change of circumstances in order to warrant conducting an evidentiary hearing.
MOM HAD CUSTODY AND ALLOWED TO MOVE TO FLORIDA
The plaintiff-mother was awarded sole physical custody of the parties' minor son with joint legal custody to the parties pursuant to a consent judgment of support.
DAD GOT HIS CHANGE OF DOMICILE HEARING , MOM MOVED WITH CHILD
Later, the trial court granted plaintiff's motion to change her domicile to Florida and the child would later move to Florida based on his school schedule and live with her.
MOM HAS TO PAY TRANSPORTATION
The order included a parenting time schedule and was later amended, inter alia, to require plaintiff to pay all transportation costs.
---
DAD SAYS THERE IS A CHANGE IN CIRCUMSTANCES
Defendant moved for a change of custody arguing there was a change in circumstances warranting a change of sole physical custody to him.
MOM POOR AND COULD NOT AFFORD AIRLINE TICKET EVICTIONS AND CHILD DID POORLY IN SCHOOL.
He alleged plaintiff was having financial difficulties, failed to provide an airline ticket for the holiday parenting time, had received eviction notices, and the child did less well in school while living with her.
COURT SAID FINANCIAL PROBLEMS NOT A CHANGE IN CIRCUMSTANCE.
The trial court held a preliminary hearing on the motion,
WHEN OUT OF STATE SOME COURTS LET YOUR PARTICIPATE BY TELEPHONE
plaintiff appeared by telephone, and the trial court ruled plaintiff's alleged financial problems did not constitute a change of circumstances sufficient to warrant a change of custody, financial issues should be addressed in the context of child support, and since defendant failed to meet the threshold requirement of showing a change of circumstance, it refused to consider defendant's motion any further. His motion for reconsideration was denied. The court held after the trial court made the threshold determination, it did not abuse its discretion in denying defendant's motion for change of custody and declining to conduct an evidentiary hearing. Affirmed.
– END SUMMARY FULL CASE FOLLOWS WITH MODIFICATIONS
S T A T E O F M I C H I G A N,C O U R T O F A P P E A L S
PAULA MICHELLE CORPORAN, Plaintiff-Appellee, FOR PUBLICATION
March 5, 2009,9:05 a.m.,V No. 285778,Oakland Circuit Court
Family Division,MARK EDWARD HENTON,
LC No. 2003-683821-DS,Defendant-Appellant.
Before: Servitto, P.J., and Owens and K.F. Kelly, JJ.
K. F. KELLY, J.,
--
Defendant appeals as of right the trial court’s order denying defendant’s motion for
change of custody.
Defendant argues that, contrary to the trial court’s conclusion, he presented
sufficient evidence of a change of circumstances to warrant an evidentiary hearing on the issue
of whether a change in custody would be in the best interests of the parties’ minor son. We hold
that the trial court employed the proper procedure by first determining whether or not proper
cause or a change in circumstances had been established by a preponderance of the evidence.
We also affirm the trial court’s ruling that negative financial changes, if any, are more
appropriately addressed in a child support context rather than in a change of custody motion.
Finally, we affirm its decision that defendant failed to show proper cause or a change of
circumstances in order to warrant conducting an evidentiary hearing.
I. Basic Facts and Procedural Background
Pursuant to the original consent judgment of support entered January 6, 2004, plaintiff
was awarded sole physical custody of the parties’ minor son with joint legal custody to plaintiff
and defendant.
MOM MOVES TO FLORIDAY DAD GETS ALL BUT TWO WEEKS OF SUMMER
On August 23, 2006, the trial court granted plaintiff’s motion to change her
domicile from Michigan to St. Petersburg, Florida. The order provided that the child would
remain with defendant “until the end of the first marking period” in the St. Petersburg school
district, and then, the child would move to Florida and reside with plaintiff. The order further
provided that the child was “to spend summers with his dad from one week after school is out in
[Florida] until one week before school starts in [Florida] and Christmas break with dad and any
other time by mutual agreement of the parents.”
On January 5, 2007, defendant moved for a
change of custody. On January 26, 2007 the trial court entered an order denying defendant’s
motion but slightly modified the parenting schedule to include specific dates and requiring
plaintiff to pay for all transportation costs.
-2-
On March 28, 2008, defendant moved again for a change of custody. In his motion,
defendant argued that after the trial court entered the January 26, 2007, order there had been aa change of circumstances warranting a change of sole physical custody to defendant.
DADS ARGUMENT
Specifically, defendant alleged that plaintiff had
[1]difficulty maintaining steady employment;
[2]failed to provide an airplane ticket for the Christmas parenting time;
[3]had received numerous eviction notices; and,
[4]for a period of approximately six weeks, was without a telephone.
[5]Moreover, according to defendant, the minor child did less well in school when living with
plaintiff and his activity level had declined.1
Defendant concluded that it would be in the child’s best interests for defendant to have sole physical custody because he was better able to provide financial support, as well as “a stable, satisfactory environment.”
MOM IN PRO PER[ NO ATTORNEY] DID NOT FORMALLY RESPOND
Plaintiff did not file a written response to defendant’s motion for change of custody.
MOM APPEARED ON THE TELEPHONE
On April 23, 2008, the trial court held a preliminary hearing on defendant’s motion for
change of custody. Plaintiff appeared at the hearing via telephone.
MOM SAYS SHE CANNOT AFFORD WHAT SHE HAS TO DO IN THE ORDER
In response to defendant’s allegation that plaintiff withheld parenting time in violation of the trial court’s order, plaintiff argued that she could not afford to purchase an airline ticket for the minor child to visit defendant during the winter holiday season.
PLANE TICKETS ARE EXPENSIVE BUT ONE HAS BEEN BOUGHT
However, plaintiff stated that she had already purchased an airline ticket for him to travel to Michigan for his next scheduled visit during the summer.
MOM HADE NOT BEEN EVICTED
She further argued that she was living in the same apartment, had not been evicted and
her landlord issues were a result of late fees added to the rent.
DAD JUST HAD HIS CHILD MOVED TO FLORIDA, MOM HAD CONDITIONS SHE CANNOT MEET, HE WANTS HIS CHILD BACK
Defendant argued that this constituted a change in economic circumstances and that it would be in the minor child’s best interest for defendant to have sole physical custody.
NOPE SAYS THE COURT
The trial court ruled that plaintiff’s alleged financial problems do not constitute a change
of circumstances sufficient to warrant a change of custody.
MOM COULD HAVE ASKED FOR MORE CHILD SUPPORT TO COMPLY WITH HER NEW FINANCIAL OBLIGATION UNDER THE ORDER ALLOWING HER TO MOVE!
It further found that the financial issues could be addressed by an increase in the amount of child support payments pursuant to a properly filed motion to modify child support.
Because defendant failed to meet the threshold requirement of showing a change of circumstances, the trial court refused to consider defendant’s motion any further.
DAD ASKED THE LOWER COURT TO RECONSIDER BECASUE THEY WERE OBVIOUSLY WRONG, IN HIS MIND
Defendant moved for reconsideration, which the trial court denied, reiterating its previous reasoning, as follows:
As indicated on [sic] at the April 23rd hearing, I do not find that Defendant has
shown a sufficient change of circumstance to warrant a hearing on change of
custody. The parties were reminded that if they have a child support issue, one of
them needs to file a motion with respect to child support, and Plaintiff was
instructed to comply with the parenting Order in place.
This appeal followed.
THE REST OF THE STORY. MOM STILL WITH BOYFRIEND WHO IS ABUSIVE AND HIS ADULT CHILD WHO THREATNED THE MINOR CHILD?
Defendant also alleged that plaintiff’s housemate continued to have contact with a physically
abusive ex-boyfriend, and the housemate’s 23 year old son, who also lived at the home, allegedly
indicated that he “might harm” the minor child. This allegation was not argued before the trial
court, nor is it raised on appeal.
II. Applicable Law
1.The goal of MCL 722.27 is to minimize unwarranted and disruptive changes of custody
orders, except under the most compelling circumstances.
Foskett v Foskett, 247 Mich App 1, 6; 634 NW2d 363 (2001). And, a trial court may modify a custody award only if the moving party first establishes proper cause or a change in circumstances. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003).
Accordingly, a party seeking a change in the custody of a child is required, as a threshold matter, to first demonstrate to the trial court either proper cause or a change in circumstances.
Killingbeck v Killingbeck, 269 Mich App
132, 145; 711 NW2d 759 (2005); see also Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835
(2004).
If a party fails to do so, the trial court may not hold a child custody hearing.
2 This Court has explained the meaning of “proper cause” and “change of circumstances:”
[T]o 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. 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. When a
movant has demonstrated such proper cause, the trial court can then engage in a
reevaluation of the statutory best interest factors.
* * *
[I]n order to establish a “change of circumstances,” 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. Again, not just any change will suffice, for over time
there will always be some changes in a child’s environment, behavior, and wellbeing.
Instead, 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. This too will be a determination made on
the basis of the facts of each case, with the relevance of the facts presented being
gauged by the statutory best interest factors. [Vodvarka, supra at 512-514
(emphasis in original).]
2 Alternatively, if the moving party succeeds in making this threshold showing, the court must
then determine if the child has an established custodial environment with one parent or both.
Once the court makes a factual determination regarding the existence of an established custodial environment, which determines the burden of proof to be applied, the court must weigh the
statutory best interest factors of MCL 722.23 and make a factual finding regarding each factor in the context of a child custody hearing. Schlender v Schlender, 235 Mich App 230, 233; 596
NW2d 643 (1999).
Although the threshold consideration of whether there was proper cause or a change of
circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary
hearing on the topic. Id. at 512.
III. Standards of Review
This Court reviews a trial court’s determination regarding whether a party has
demonstrated proper cause or a change in circumstances under the great weight of the evidence
standard. Id. at 508, 512. Under the great weight of the evidence standard, this Court defers to
the trial court’s findings of fact unless the trial court’s findings “clearly preponderate in the
opposite direction.” Fletcher v Fletcher, 447 Mich 871, 878; 526 NW2d 889 (1994) (quotation
marks omitted).
In reviewing child custody decisions, we apply three standards of review:
The great weight of the evidence standard applies to all findings of fact. A trial
court’s findings regarding the existence of an established custodial environment
and regarding each custody factor should be affirmed unless the evidence clearly
preponderates in the opposite direction. An abuse of discretion standard applies
to the trial court’s discretionary rulings such as custody decisions. Questions of
law are reviewed for clear legal error. A trial court commits clear legal error
when it incorrectly chooses, interprets, or applies the law. [Phillips v Jordan, 241
Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).]
We review a trial court’s ruling on a motion for reconsideration for an abuse of
discretion. Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 629; 750 NW2d 228 (2008). “An
abuse of discretion occurs when the decision results in an outcome falling outside the range of
principled outcomes.” Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
IV. Analysis
We agree with the trial court that defendant failed to establish by a preponderance of the
evidence either proper cause or a change in circumstances sufficient to warrant reconsideration
of the previous January 26, 2007 custody and parenting time order. After making this threshold
determination, the trial court did not abuse its discretion in denying defendant’s motion for
change of custody and declining to conduct an evidentiary hearing.
THE BEST INTEREST FACTORS APPLIED
A. Financial Difficulties Defendant contends the evidence shows that plaintiff had incurred financial problems, specifically, difficulties with paying her rent in a timely manner. This argument addresses the “best interest of the child” factor (c), which permits the trial court to consider “[t]he 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). These problems, in defendant’s view, could have resulted in the eviction of plaintiff and the child, and demonstrated that there was a sufficient change of economic circumstances to warrant a change of custody.
According to defendant, the
change in economic circumstances was also shown by plaintiff’s failure to provide airline
transportation for the child to visit defendant during the previous holiday season.
The trial court
rejected defendant’s contention that this change in economic circumstances warranted a change
of custody because, according to the trial court, plaintiff’s shortage of income could be remedied
by an increase in child support.
This Court arrived at a similar conclusion in Dempsey v
Dempsey, 96 Mich App 276, 289-290; 292 NW2d 549, modified 409 Mich 495 (1980). In
Dempsey, this Court reasoned that a parent with “more modest economic resources” is
nonetheless entitled to equal consideration in the child custody context, because “[i]f the parties
are substantially different as to economic circumstances, the [trial] court has ample power
through its orders, if it be in the best interests of the child or children, to equalize those
circumstances.” Id. at 290.
We agree with the trial court that changes in financial circumstances
are more appropriately addressed upon a properly filed motion to review and/or change child
support. Changes in economic circumstances, standing alone, are insufficient to warrant
revisiting a previously entered child custody order.
Further, we are not persuaded that the trial court erred in concluding that defendant failed
to show “that, since the entry of the last custody order, the conditions surrounding custody of the child, . . . [has] or could have a significant effect on the child’s well-being, have materially
changed.” Vodvarka, supra at 513. Although defendant presented evidence that plaintiff had
difficulty paying her rent, and had, in fact, been threatened with eviction at one point, the record does not show that plaintiff and the child were ever compelled to vacate their residence, or that
plaintiff and the child’s living arrangement actually changed in any way from January 26, 2007,
through the date of the hearing on April 23, 2008.
Further, although plaintiff admitted at the
hearing that she did not comply with the trial court order with respect to providing defendant
with parenting time, plaintiff articulated her intent and ability to follow the order in the future,
having already purchased the airline ticket for the child’s next scheduled visit with defendant
during the summer months of this year.
Thus, defendant’s assertion, that plaintiff “blatant[ly]
refus[ed] to make the child available” for parenting time, is unsupported by the record. We
conclude that the trial court’s finding, that defendant failed to demonstrate a change of
circumstances with the evidence that plaintiff was experiencing financial problems, was not
against the great weight of the evidence.
B. The Minor Child’s Grades
Defendant next argues that “based upon a review of [the child’s] grades since the entry of
the last custody order, there appears to be a significant decline in the [the child’s] academic
performance.”
The trial court’s finding that this evidence did not demonstrate a change of
circumstances was not against the great weight of the evidence. Defendant addresses “best
interests of the child” factor (h), “[t]he home, school, and community record of the child.” MCL
722.23(h).
Although a comparison of the grade reports from Adler Elementary School
(Southfield, Michigan) and Maximo Elementary School (St. Petersburg, Florida) shows that the
child’s grades have declined to a minor extent in certain subjects, the child’s grades do not show
anything
NORMAL LIFE CHANGES ARE NOT A CHANGE IN CIRCUMSTANCES
“more than the normal life changes (both good and bad)
that occur during the life of a
child . . . .” Vodvarka, supra at 513.
The child apparently excelled in five of twelve factors of
language arts in Michigan, but achieved an overall grade of “C” in reading and writing in
Florida.
However, although the child achieved average grades in art in Michigan, he received a
excellent grade for art in Florida.
According to the Florida progress reports, the child is not in danger of failing in any
subject. Furthermore, although defendant attempts to attribute the decline in the child’s
academic performance to his current custodial environment, the changes in the child’s grades
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