MICHIGAN COURT OF APPEALS DECISIONS
PUBLISHED AND UNPUBLISHED http://courts.mi.gov/courts/coa/opinions/pages/zipfiles.aspx.
PUBLISHED OPINIONS
Published opinion summaries have been published here with permission from the Michigan Judicial Institute’s “IMPACT” publication.Ludwig v Ludwig: CHILD CUSTODY – EVIDENTIARY HEARING REQUIRED BEFORE REUNIFICATION ORDER
Where the circuit court “ordered the defendant and the minor children to participate in a six-month reunification process” that first “required the defendant and the children to participate in a reunification video conference under the in-person supervision of two therapists,” and “[t]he order provided that, following the initial video conference, the ‘frequency, duration, and method of continued contact will be at the therapists’ discretion,’” “the circuit court should have held an evidentiary hearing and considered the best interests of the children before entering the reunification order.” Ludwig v Ludwig, ___ Mich ___, ___ (2018) (reversing Ludwig v Ludwig, 322 Mich App 266 (2017), and remanding to the circuit court to conduct an evidentiary hearing). “[T]he circuit court’s order left up to the unfettered discretion of the therapists the ‘frequency, duration, and method’ of any additional contact between the defendant and the children for a six-month period following the initial video conference,” and “the circumstances of this case warrant a hearing to determine whether the reunification process authorized by the circuit court’s order is in the children’s best interests.” Ludwig, ___ Mich at ___.
Marik v Marik: CHILD CUSTODY – REQUEST TO CHANGE SCHOOL ENROLLMENT AND MODIFICATION OF PARENTING TIME
Where the defendant father requested a change in school enrollment and a modification of parenting time from 55-45 to equal, and the trial court conducted a de novo hearing but “did not expressly address whether there was an established custodial environment, whether the requests would change that environment, or whether the requests weighed in favor of the individual best-interest factors under MCL 722.23,” the trial court “erred in failing to conduct a full evidentiary hearing and [in failing to] determin[e] whether an established custodial environment existed for the minor children.” Marik v Marik, ___ Mich App ___, ___ (2018). Specifically, “prior to considering a request to change schools,” “the trial court was tasked with determining the children’s established custodial environment, whether the requested change would alter it, and whether such a request was in the best interests of the minor children”; because “[t]here was no evidence introduced, no witnesses called, no cross-examination by opposing counsel, and . . . no express consideration of the best-interest factors contained in MCL 722.23,” “the trial court failed to conduct a full evidentiary hearing on the request to change the children’s school enrollment, and for that reason, remand is required.” Marik, ___ Mich App at ___. Regarding the defendant father’s request to modify parenting time, “the trial court did not specifically address or discuss the existence of an established custodial environment for the children or the extent to which the best-interest factors were applicable”; however, “a determination of the effect of the parenting time modification on the custodial environment is necessary to determine the proper standard, Vodvarka[ v Grasmeyer, 259 Mich App 499 (2003)] (clear and convincing evidence) versus Shade[ v Wright, 291 Mich App 17 (2010)] (preponderance of the evidence), to be applied in determining the best interests of the children,” and “the standard dictates whether the trial court must address each best-interest factor or may only address those factors in dispute.” Marik, ___ Mich App at ___. Accordingly, “even though the trial court repeatedly sought to focus on and emphasize the best interests of the minor children, it did not expressly address any of the best-interest factors”; “[i]f, on remand, the trial court concludes that the Shade standard applies, then it need only make findings on the contested issues” but “if it concludes that the stricter Vodvarka standard applies, then it must address all of the best-interest factors.” Marik, ___ Mich App at ___.
UNPUBLISHED OPINIONS
Under Michigan law, unpublished cases are not considered authoritative. They are cited here to illustrate points of interest for future similar cases.Beukema v Labar, unpublished opinion of the Court of Appeals, released May 17, 2018 (Docket No. 340072). The parties’ constant contention, acrimonious relationship, and inability to co-parent was detrimental to the minor child and constituted proper cause to change custody.
Zeineh v Zeineh, unpublished opinion of the Court of Appeals, released May 17, 2018 (Docket No. 339443). The trial court erred when it granted a change in legal custody without first evaluating the established custodial environment in order to determine the proper burden of proof.
Lanker v Oyler, unpublished opinion of the Court of Appeals, released May 22, 2018 (Docket Nos. 341530; 341550). When parents with joint legal custody could not agree on an important decision such as where the child will attend school, the trial court erred by deciding the issue without first determining whether the proposed order would modify the established custodial environment and then conducting a best-interest analysis using the statutory best-interest factors.
Sharpe v Huguelet and Beebe, unpublished opinion of the Court of Appeals, released May 29, 2018 (Docket No. 340569). The trial court could properly extend the time for filing an action under the Revocation of Paternity Act based on misrepresentation when the biological father was deceived by the mother’s repeated statements that he was not the child’s father until he saw a picture of the child who looked like him which caused him to question her statements.
Krieg v Krieg, unpublished opinion of the Court of Appeals, released June 7, 2018 (Docket No. 341055). Considering the child’s young age, the distance between the parties, and the concerns regarding the plaintiff’s work schedule, the trial court reasonably concluded that multiple weekly visits were not in the child’s best interests.
Argel v Argel, unpublished opinion of the Court of Appeals, released June 12, 2018 (Docket No. 340148). The trial court could impute income to the defendant at a level he had previously earned in his business where the trial court properly determined that defendant had voluntarily unexercised income or had taken advantage of tax law to indicate that his income was far below what it actually was.
Pieper v Pieper, unpublished opinion of the Court of Appeals, released June 19, 2018 (Docket No. 338206). The trial court erred when it imputed income to the plaintiff, who received means-tested supplemental security income, without following the deviation procedure or stating a reason for deviating from the Michigan Child Support Formula’s guidance regarding treatment of means-tested income.
Slocum and Slocum v Floyd, unpublished opinion of the Court of Appeals, released June 19, 2018 (Docket No. 338782; 340242). The trial court erred by awarding grandparenting time in a custody proceeding because having just awarded custody to the mother in that proceeding the grandparents could not have satisfied the requirement that they were denied grandparenting time and the denial creates a substantial risk of harm to the child's mental, physical, or emotional health.
Wigginton v Wigginton, unpublished opinion of the Court of Appeals, released June 19, 2018 (Docket No. 339982). The change of domicile factors are not applicable when no custody order existed at the time the court rendered its decision.
Samborski v Samborski, unpublished opinion of the Court of Appeals, released June 19, 2018 (Docket No. 341524). When there was no evidence that defendant’s infidelity, money handling issues, and bankruptcy or a reprimand in the course of his professional career implicated his fitness to parent the children, they were not relevant considerations under the moral fitness best interest factor.
Reyes v Herron, unpublished opinion of the Court of Appeals, released June 19, 2018 (Docket No. 342224). For a 13-year-old child, experiencing an allergic reaction and having an altercation with another child – both immediately and appropriately attended to – do not demonstrate something more than the normal life changes that occur during the life of a child, and therefore do not constitute proper cause or change of circumstances sufficient to revisit the custody order.
Mitchner v Pollard, unpublished opinion of the Court of Appeals, released June 26, 2018 (Docket No. 341802). The trial court did not commit error by awarding the plaintiff sole legal custody when despite the parties’ past cooperation, there was no evidence that the parties could currently cooperate on major life decisions.
Hamden v Marrow II, unpublished opinion of the Court of Appeals, released July 17, 2018 (Docket No. 342659). When a timely objection to a friend of the court referee’s recommendation is filed, a review of the record without holding a live hearing does not satisfy requirements under MCL 552.507(4) and MCR 3.215(E)(4).
Rozmiarek v Rozmiarek, unpublished opinion of the Court of Appeals, released July 19, 2018 (Docket No. 339976). In determining whether joint custody is appropriate, the parties’ ability to cooperate is but one consideration, and absent evidence in the record that the parties’ differences are incapable of being resolved, the Court of Appeals would not disturb the trial court’s order refusing to award sole custody to either party.
Amromin v Amromin, unpublished opinion of the Court of Appeals, released July 18, 2018 (Docket No. 341804). A court may consider a parent’s prior violation of court orders as well as prior unsubstantiated claims of abuse to Child Protective Services during a best-interests analysis in a custody dispute.
Orellana v Mayne and Mayne, unpublished opinion of the Court of Appeals, released July 24, 2018 (Docket No. 338929). Although there was conflicting evidence concerning whether the biological father knew the mother was married while the parties lived together, the trial court did not err in finding the biological father did not know the mother was married at the time of the child’s conception which gave him standing to bring an action under the Revocation of Paternity Act.
Sternaman v Sternaman, unpublished opinion of the Court of Appeals, released July 31, 2018 (Docket No. 340722). When defendant requested a change in parenting time that would reduce plaintiff’s overnights by between 26 to 57 ½ per year, this amounted to a request to alter the established custodial environment with plaintiff and therefore required proper cause or a change in circumstances warranting revisiting custody.
Dubin v Fincher, unpublished opinion of the Court of Appeals, released August 7, 2018 (Docket No. 339175). When defendant requested expanded, unsupervised, non-overnight parenting time, the order denying her request was not a “final order” appealable by right because her request was not to change legal or physical custody or to alter the established custodial environment.
Shaya v Shaya, unpublished opinion of the Court of Appeals, released August 9, 2018 (Docket No. 336107). Despite referring to its decision as imputing income, the trial court was not required to use the imputation factors in the MCSF when it did not attribute income to the defendant based on his ability to earn but instead calculated defendant’s actual income based upon his tax returns, bank statements, and casino records.
Middlebrook v Freeman, Jr., unpublished opinion of the Court of Appeals, released August 21, 2018 (Docket No. 342827). The trial court erred in changing custody without first determining the child’s established custodial environment.
Maitland v Ostrovich, unpublished opinion of the Court of Appeals, released August 23, 2018 (Docket No. 342811). There is no mathematical requirement regarding weighing of the statutory best-interest factors, and where the parties were equal on all factors—except for one the trial court found to be very important that favored defendant—the court did not err in ordering joint physical custody to protect defendant’s relationship with his daughter, which plaintiff was undermining.
NEW COURT FORM
CASE INVENTORY ADDENDUM (FAMILY DIVISION)
The State Court Administrative Office (SCAO) has created MC 21, Case Inventory Addendum (Family Division), “as required by MCR 3.206, [MCR] 3.931, and [MCR] 3.961.” See the August 29, 2018 SCAO Memorandum, Notice of Creation of MC 21, for a brief explanation of the form and a copy of the form.
Friend of the Court Bureau Memoranda
(August 16, 2018) Certified Orders in Electronic Document Exchange
This memorandum provides guidance regarding using the Office of Child Support Enforcement’s Electronic Data Exchange (EDE) application to exchange interstate child support forms and other child support documents, including certified court orders.
(August 13, 2018) MCR 3.208 – Initiating Show Cause by Friend of the Court Notice
This memorandum provides guidelines for domestic relations judges, referees, and FOC staff on amendments to MCR 3.208, specifically the show cause notice and exempting cases from enforcement.
Michigan IV-D Memorandums (Office of Child Support)
2018-013 (August 20, 2018) Implementation of Federal Child Support Portal Applications, Revised Income Withholding Notice (IWN), and Modifications to User Access Security Forms
This IV-D Memorandum announces the implementation of two new Federal Child Support Portal applications in Michigan – Electronic Document Exchange (EDE) and Debt Inquiry Service (DIS). It also introduces the revised federal income withholding notice (IWN). The Portal applications and the revised IWN were implemented on August 24, 2018.
2018-012 (August 20, 2018) IV-D Worker Access to the MiChildSupport Portal Customer Communication Page Through the Michigan Child Support Enforcement System (MiCSES)
This IV-D Memorandum announces revisions to the Michigan IV-D Child Support Manual as a result of new functionality that will allow IV-D workers to access the MiChildSupport Portal Customer Communication page through MiCSES. This is a change from the previous process of logging into the MiChildSupport Portal using a separate username and password to access the Customer Communication page. These changes were implemented with the MiCSES 9.10 release on August 24, 2018.
2018-011 (August 20, 2018) Updates to the Federal Tax Refund Offset (FTRO) Fraud Process
This IV-D Memorandum announces changes to the FTRO fraud process and enhancements to the FTRO Fraud Queries (FFRQ) screen in the Michigan Child Support Enforcement System (MiCSES). These enhancements, which include the ability to store “Potential Fraud Conditions Query” data and record OCSE responses, were implemented with the MiCSES 9.10 Release on August 24, 2018.
