Sattler v. Tarjeft

NICOLE SATTLER, Plaintiff-Appellee, v. JAY TARJEFT, Defendant-Appellant.

NICOLE SATTLER, Plaintiff-Appellee, v. JAY TARJEFT, Defendant-Appellant.

Nos. 358163, 358164

Court of Appeals of Michigan

April 21, 2022

UNPUBLISHED

Wayne Circuit Court Family Division LC Nos. 13-154523-DS 20-105882-DS

Before: Jansen, P.J., and Sawyer and Riordan, JJ.

PER CURIAM.

In each of these consolidated appeals, ^[1] defendant appeals as of right substantively identical orders awarding plaintiff full legal custody of the parties' two children and a favorable parenting-time schedule. For the reasons set forth below, we vacate the trial court order, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In February 2020, plaintiff moved to enforce and modify a 2015 custody order regarding the parties' eldest child, KT. Plaintiff explained that the parties reconciled for a short period, during which time plaintiff gave birth to the parties' second child, CT. After the parties separated again, they shared parenting time for both children under a slightly modified version of the court-ordered schedule for KT. Plaintiff was exercising parenting time Sunday through Tuesday, defendant was exercising parenting time Wednesday and Thursday, and the parties alternated weekend parenting time. Plaintiff complained that the locations of parenting-time exchanges and KT's school were unfairly favorable to defendant. Plaintiff further asserted that because of defendant's employment as a cross-country truck driver, defendant was rarely present during his parenting time and the children spent most of their time with their paternal grandparents or aunt. Among other requests plaintiff asked the court to modify parenting time to give her an additional parenting-time day each week and include CT in the modified custody and parenting-time order. Plaintiff subsequently amended her motion to seek sole legal custody of both children.

After the trial court determined that it did not have jurisdiction over CT in lower court case number 13-154523-DS, plaintiff initiated the second action, lower court case number 20-105882-DS, by filing a complaint to establish custody, parenting time, and support for CT. The complaint requested that the 2020 case be consolidated with the 2013 case, and defendant agreed with the request. Although it does not appear that the matters were formally consolidated, they proceeded together for the remainder of the relevant procedural history. After hearing testimony over four days of evidentiary hearings, the trial court granted plaintiffs motion and awarded her sole legal custody of both children. Plaintiff was also awarded parenting time Sunday morning through Thursday morning during the school year, with defendant exercising parenting time Thursday afternoon through Sunday morning.^[2]

II. STANDARDS OF REVIEW

In matters involving child custody," 'all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.'" Pennington v Pennington, 329 Mich.App. 562, 569-570; 944 N.W.2d 131 (2019), quoting MCL 722.28. Factual findings, including the existence of proper cause or a change of circumstances, whether the children have one or more established custodial environments, and analysis of the statutory best-interest factors, are reviewed under the great weight of the evidence standard. Pennington, 329 Mich.App. at 570; Marik v Marik, 325 Mich.App. 353, 359; 925 N.W.2d 885 (2018). "A finding of fact is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction." Pennington, 329 Mich.App. at 570. "Discretionary rulings, including the ultimate award of custody and the award of parenting time, are reviewed for an abuse of discretion." Diez v Davey, 307 Mich.App. 366, 389; 861 N.W.2d 323 (2014). "[A]n abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Yachcik v Yachcik, 319 Mich.App. 24, 31; 900 N.W.2d 113 (2017) (quotation marks and citation omitted).

III. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

On appeal, defendant first argues that the trial court erred by finding proper cause and a change of circumstances to reconsider KT's custody and parenting time. We agree.

"As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-time order, the moving party must first establish proper cause or a change of circumstances before the court may proceed to an analysis of whether the requested modification is in the child's best interests." Lieberman v Orr, 319 Mich.App. 68, 81; 900 N.W.2d 130 (2017). The trial court may not "revisit an existing custody decision and engage in a reconsideration of the statutory best-interest factors" unless the moving party demonstrates proper cause or a change of circumstance by a preponderance of the evidence. Pennington, 329 Mich.App. at 571. This Court's opinion in Vodvarka v Grasmeyer, 259 Mich.App. 499; 675 N.W.2d 847 (2003), articulates the threshold requirements a party seeking a change of custody must satisfy:

[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 well-being. 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. [Id. at 512-514.]

The trial court found both proper cause and a change of circumstances of sufficient magnitude to reconsider KT's parenting time and legal custody, citing defendant's limited knowledge of what happened during his parenting time, limited availability to provide the children with guidance, the change in his employment that prompted the children to live with defendant's parents for a period of time, and several potentially dangerous activities the children engaged in that raised questions regarding defendant's judgment. The trial court erred in this regard.

Although the trial court emphasized at the evidentiary hearing that it was not holding defendant's employment against him, it appears from the opinion and order entered after the hearing that the court did just that. The court noted that defendant's job for a different trucking company with different hours was a "significant change since the last custody order," and that his schedule precluded defendant from providing KT with guidance as provided under factor (b) of MCL 722.23. The court noted that defendant took this job in the fall of 2019, and found that defendant's new job was "one of the reasons to consider a review of the best interest factors as it amounts to a proper cause and a change in circumstances." We disagree. Defendant cannot be faulted for maintaining a job and obtaining income. Like many other working parents, defendant relied on his family to provide childcare while defendant was at work. Initially, defendant dropped the children off at his parents' house before bedtime before defendant left for his overnight shift. After plaintiff raised issue with this arrangement, the children's bunkbeds were moved from the grandparents' home to defendant's, and defendant's sister moved in to defendant's home to be there with the children while defendant worked.^[3] Additionally, defendant brought the children to work with him on occasion. This was not against the rules, and we find no safety concerns with the children accompanying defendant on his shifts. These were reasonable accommodations to suit the nature of defendant's job, and although his job changed since the previous 2015 custody order was entered, it does not establish proper cause or a change of circumstances sufficient to review the custody order pertaining to KT that was already in place.

Nor do we find the other circumstances listed by the trial court in its opinion and order to rise to the level of proper cause or a change in circumstances. The trial court noted that it was not illegal for children to ride on defendant's motorcycle, but still considered this cause to question defendant's judgment. The court was also concerned with the incident wherein KT put slime in the microwave, but took notice of the testimony at trial indicating that the paternal grandfather was home at the time, but outside when the incident occurred.

Thus plaintiff did not meet her burden of proving by a preponderance of the evidence that proper cause or a change of circumstances existed to proceed...