Brausch v. Brausch

770 N.W.2d 77

283 Mich. App. 339

BRAUSCH v. BRAUSCH.

Docket No. 282985.

Court of Appeals of Michigan.

Submitted October 8, 2008, at Grand Rapids.

Decided April 14, 2009, at 9:10 a.m.

Rathert Law Offices, P.C. (by Kenneth A. Rathert), Kalamazoo, for the plaintiff.

Vlachos & Vlachos, P.C. (by Nicholas A. Vlachos), Kalamazoo, for the defendant.

Before: MARKEY, P.J., and SAWYER and KIRSTEN FRANK KELLY, JJ.

PER CURIAM.

Plaintiff appeals by right the custody modification order entered by the trial court following a two-day evidentiary hearing. Plaintiff argues that the trial court failed to enforce the parties' agreement and the judgment of divorce regarding custody and change of residence, that the trial court erroneously applied MCL 722.31 and MCR 3.211(C) to the instant case, and that the trial court abused its discretion by modifying the custody order. We reverse and remand for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant were married on October 30, 1999, and their only child was born on January 28, 2004. The parties separated on June 24, 2005, and plaintiff filed a complaint for divorce on July 27, 2005. While the divorce was pending, plaintiff and the child resided with plaintiff's parents in Portage, Michigan. During that time, the child attended half-day sessions at day care. Defendant claimed that he frequently picked up the child from day care and took her to day care the following day. Generally, the child spent Tuesdays, Thursdays, and alternate weekends with defendant; however, defendant conceded that there was no regular or consistent parenting time schedule. Additionally, plaintiff frequently traveled out of town or out of the country, often with the child.

The parties ultimately stipulated that "this matter may stand on the pleadings filed herein, without further notice to the defendant, and the court may enter a judgment of divorce so long as it bears defendant's signature." The trial court entered the judgment of divorce on February 6, 2006, determining that plaintiff presented satisfactory proof that the material facts contained in her complaint were true and that there was a breakdown of the marital relationship. In the judgment, the trial court awarded plaintiff sole legal and physical custody of the child and provided that "defendant shall have reasonable parenting time as agreed to by the parties." The trial court also approved two provisions in the judgment of divorce that indicated that there were no prohibitions against moving the child out of state or more than 100 miles:

It is further ordered that the minor child is currently domiciled in Michigan. However, the domicile or residence of the minor child can be moved from Michigan without obtaining prior approval of the court so long as the non-custodial parent is aware of the location of the child and is provided with the opportunity for reasonable parenting time with the child.

* * *

It is further ordered that, pursuant to MCL 722.31, the prohibition against moving the minor child does not apply to this case, as the plaintiff has sole legal custody of the child.

According to defendant, his parenting time became less regular after June 2006 when plaintiff removed the child from day care. In October 2006, plaintiff and the child moved to Toronto, Ontario, where they resided with plaintiff's new boyfriend.¹ Plaintiff claimed that defendant knew of and acquiesced to her move; however, defendant denied that he knew, indicating that he only learned about the move on April 5, 2007, after pressing plaintiff about his decreased parenting time.

On May 25, 2007, instead of filing a motion for enforcement of, or for specific, parenting time, defendant moved to modify legal custody and to restore his parenting time to what he alleged was the status quo ante. Defendant also moved for an ex parte order prohibiting the removal of the child from the state of Michigan. At the hearing on July 9, 2007, the trial court denied ex parte relief, concluding that defendant failed to demonstrate specific facts that irreparable injury, loss, or damage will result. The trial court also entered an interim order providing that the child would spend the third weekend of every month, from Thursday to Sunday, with defendant. It further stated that it would hold a hearing:

Specifically we're going to deal with the issue of economics,[²] so if you guys don't have that figured out in terms of support. Also in terms of what we're going to do from here in terms of visitation, et cetera. I am a very large proponent of having both parents deeply involved in these children's lives—or this child's life—....

* * * ... [I]f he is willing to step up to the plate now and do it, you should embrace that and let him live the words that he says he's going to do. Because it's very, very important for you and your child to make that happen, okay? So trust— trust him at his word, let it try to happen and we'll see where we go from here, all right?

The hearing was scheduled for November 16, 2007. By then the child had been living with plaintiff in Canada for over a year. Before the hearing, the trial court expressed its dissatisfaction with plaintiff's move to Canada, largely because of its experience with another, unidentified case. It took under advisement plaintiff's request that the trial court only address parenting time and the move to Canada. The trial court then proceeded to conduct a full evidentiary hearing on the issue whether an established custodial environment existed, and, after applying the best interest factors of the Child Custody Act, MCL 722.21 et seq., whether the custody provisions of the judgment of divorce should be modified. The trial court did not determine whether plaintiff had met the threshold for changing custody or whether any established custodial environment existed.³

At the evidentiary hearing, defendant explained that his parenting time had decreased and that he wanted to return to his previous parenting time schedule. He alleged that plaintiff had frequently denied his parenting time, claiming illness or vacation. Defendant asserted that he "enjoyed parenting time with the minor child consistently every other weekend and every Tuesday and Thursday or, alternately, two other week nights on an overnight basis each week, to the extent that the minor child ended up spending nearly half of her time in defendant's care." Defendant believed that plaintiff would relocate to Florida, but because he traveled regularly to Florida, he could still maintain a relationship with his child if she moved. Defendant argued that the parties should be awarded joint legal custody of their child, that the child should not be removed from the state of Michigan without the trial court's approval or the parties' agreement, that the parties be prohibited from moving the child more than 100 miles, and that defendant should be awarded parenting time of alternate weekends, two overnight stays a week, alternate holidays, and a "school schedule" under which defendant would have more parenting time during the summer, spring break, and Christmas.

Plaintiff responded that defendant never exercised regular parenting time and that he frequently went several weeks without contacting their child. Plaintiff claimed that "defendant was enjoying his new found bachelorhood and rarely ever inquired as to parenting time with the child." Plaintiff asserted that she had to initiate contact between defendant and the child. Further, plaintiff claimed that defendant knew that she and the child moved to Canada in October 2006. Plaintiff informed defendant that she planned to enroll in a Toronto university and to work for her father's business in Canada. Plaintiff resides only six hours from Kalamazoo.

After the hearing, the trial court concluded that the provisions in the judgment of divorce that waived a parent's rights to a hearing on the child's removal from Michigan and to the 100-mile rule were unenforceable. The trial court again expressed concern over plaintiff's move to Canada because it believed that defendant's ability to exercise parenting time inappropriately would be contingent on plaintiff's cooperation. Further, the trial court found that a de facto joint legal custodial environment existed; thus, "the provisions of MCL 722.31 Section 11(4) must be adhered to." Finally, the trial court opined that "clear and convincing evidence has been shown that a change in legal custody and specific parenting time is in the best interests of the minor child." The trial court ordered:

(a) The minor child be returned to Kalamazoo County, Michigan within the next 30 days.

(b) The plaintiff and defendant are awarded joint legal custody.

(c) That the father resume parenting time on alternate weekends from Friday at 5 p.m. until Sunday at 6 p.m. and Tuesday and Thursdays from 3:30 p.m. until 7:00 p.m.; the parties alternate all major holidays, excluding New Year's, and including Halloween; Memorial Day, and Labor Day, shall be long holiday weekends. The parties will alternate spring break and split Christmas break. Each party shall have two uninterrupted weeks during summer break; the child shall be with plaintiff the first week after school ends and the Thursday preceding the commencement of school. The parties must notify one another, in writing, by April 15, of what two weeks they intend to take for the summer. The balance of the summer vacation shall be on a weekly rotation. The child's birthday shall be alternated, and the child shall always be with mother on Mother's Day and the father on Father's Day.

Plaintiff appeals by right.

II. STANDARDS OF REVIEW

Pursuant to MCL 722.28, "[t]his Court must affirm all custody orders unless the trial court's findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Berger v. Berger, 277...