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holding that a reduction from 225 to 140 days constituted a change of custody and "would likely affect the established custodial environment"
Summary of this case from Cleary v. KhalidOpinion
No. 333816
03-07-2017
John Allen LIEBERMAN, Plaintiff–Appellee, v. Kimberly Ann ORR, formerly known as Kimberly Ann Lieberman, Defendant–Appellant.
Scott Bassett for John Lieberman. Speaker Law Firm, PLLC (by Liisa R. Speaker and Jennifer M. Alberts), for Kimberly Orr.
Scott Bassett for John Lieberman.
Speaker Law Firm, PLLC (by Liisa R. Speaker and Jennifer M. Alberts), for Kimberly Orr.
Before: M.J. Kelly, P.J., and O'Connell and Beckering, JJ.
Beckering, J.In this child custody matter, defendant, Kimberly Orr, appeals as of right the trial court's order granting plaintiff, John Lieberman's motion to change parenting time and the children's schools. Defendant contends on appeal that granting plaintiff's motion affected the established custodial environment the children had with her, and that it effectively changed primary physical custody of the children from her to plaintiff without review under the correct legal framework. We agree, and therefore, we vacate the trial court's order and remand for further proceedings.
Plaintiff contends that the postjudgment order appealed from does not change the established custodial environment and, therefore, is not a final order appealable by right under MCR 7.202(6)(a)(i ). In a one-page brief accompanying supplemental authority, plaintiff further argues that the order is not appealable under MCR 7.202(6)(a)(iii ) pursuant to this Court's recent decisions in Ozimek v. Rodgers, 317 Mich.App. 69; 893 N.W.2d 125 (2016), and Madson v. Jaso, 317 Mich.App. 52; 893 N.W.2d 132 (2016). Plaintiff contends that these cases stand for the proposition that postjudgment orders effecting a change in schools (Ozimek ) or a modifying a party's parenting time (Madson ) are not appealable by right. Madson involved an interim order providing for makeup parenting time while the parties prepared for a new custody determination. Madson, 317 Mich.App. at 63, 893 N.W.2d 132. It is, therefore, sufficiently distinguishable from this case and is inapplicable. Although Ozimek is more to the point, plaintiff has overlooked one important exception to the general proposition he derives from Ozimek : an order that changes where a child attends school that also changes "the amount of time either parents spends with the child" such that it affects custody appealable by right. Ozimek, 317 Mich.App. at 77, 893 N.W.2d 125. Contrary to the dissent's implication, this Court dismissed Ozimek for lack of jurisdiction not simply because it involved a question of legal custody, but because the disputed order denying a motion to change schools did not affect custody. That is not the case here. Although the trial court characterized its ruling as merely a change of schools and a modification of parenting time that did not affect the established custodial environments, for the reasons set forth in this opinion, the trial court's order did affect the custody of the minor children. Therefore, it is appealable as of right pursuant to MCR 7.202(6)(a)(iii ).
I. PERTINENT FACTS AND PROCEDURAL HISTORY
After the parties' marriage dissolved, the trial court entered a consent judgment of divorce in March 2008 that awarded defendant sole physical custody and the parties joint legal custody of the two minor children. The consent judgment gave plaintiff parenting time of one midweek overnight a week, every other weekend, four weeks during summer vacation, and alternating holidays. Minor modifications to plaintiff's parenting-time schedule were made in 2008 and 2009.
In July 2010, defendant filed a motion to change the children's residence from East Tawas to DeWitt, where defendant had obtained a full-time job. Plaintiff opposed the motion, and countered it with a motion to change custody. Plaintiff asked the court, among other things, to order psychological examinations for the parties and the children and an in camera interview with the children to determine their preferences. Stressing his present involvement and anticipated future involvement with the children's academic development, plaintiff asked the court to "[o]rder a Change in Custody that awards Plaintiff parenting time during the school year and Defendant parenting time based upon the testimony elicited at hearing [sic] in this matter." Plaintiff appears to have withdrawn his motion subsequent to the parties' February 23, 2011 stipulated modification of parenting time. Pursuant to the terms of the modification, the children continued to live with defendant during the school year, and plaintiff received parenting time three weekends a month during the school year and all but the first and last weeks of the children's summer vacation. The trial court entered a corresponding modified uniform child support order showing that plaintiff had 140 overnights a year with the children, and defendant had 225.
In April 2013, pursuant to a motion filed by the Iosco County Friend of the Court, the trial court entered an order transferring the parties' case to Clinton County. In December 2013, defendant filed a motion requesting parenting time on alternating weekends throughout the year. She alleged that plaintiff violated the parenting-time agreement by not ensuring her telephonic access to the children during the children's summer vacation, and she indicated that her employer no longer required her to work weekends. Plaintiff opposed the motion, arguing that the proposed reduction in his parenting time from 140 to 88 days—a reduction of 52 days—would alter his established custodial environment with the children.
The court indicated to the parties in 2011 that, after resolution of a property matter unrelated to the instant dispute, a change of venue and transfer of the matter would be initiated because neither party resided in Iosco or an adjacent county. MCR 3.212.
The referee who heard defendant's motion noted that the parents shared joint legal custody, defendant had primary physical custody, and plaintiff had parenting time as provided by the parties' February 23, 2011 stipulated agreement. The referee also found that there was an established custodial environment with each parent, and that the proposed 52-day reduction in plaintiff's parenting-time schedule would change the established custodial environment that the children had with plaintiff. Therefore, according to Shade v. Wright , 291 Mich.App. 17, 25–28, 805 N.W.2d 1 (2010), resolution of defendant's motion was governed by the legal framework set forth in Vodvarka v. Grasmeyer , 259 Mich.App. 499, 675 N.W.2d 847 (2003). Employing this framework, the referee found that defendant had failed to establish the proper cause or change of circumstances necessary to proceed to a hearing to determine whether a change in parenting time was in the best interests of the children. The trial court denied defendant's objection to the referee's recommendation, but told defendant that she could submit for the court's consideration an amended motion proposing a parenting-time modification that did not alter the children's established custodial environment with plaintiff. The court rejected defendant's amended motion because it reduced plaintiff's parenting time by 20 days, from 140 to 120 days. The court stated that defendant could file a motion that reallocated plaintiff's parenting time, but not one that reduced it.
In May 2016, plaintiff filed a motion to "modify parenting time and change schools," requesting "essentially that the parties swap the current parenting time schedule." Plaintiff based his motion on concerns about the children's academic opportunities and one child's academic performance. Plaintiff contended that the youngest child ended his fourth-grade year in the 50th percentile in reading and the 63rd percentile in math, and that the goal was the 80th percentile. Plaintiff further observed that he had taken the child to Sylvan Learning Center to arrange for the tutoring the child needed to improve academically, and that he would be better than defendant at helping the child achieve his academic potential. In addition, plaintiff noted that the older child had "reached adolescence" and wanted to spend more time with plaintiff with whom he could explore his interests in history and science. Plaintiff also cited concerns with the children's hygiene, specifically regular nail trimming and dental checkups. Plaintiff asserted that the February 23, 2011 stipulated modification of parenting time provided for "both joint legal and physical custody" of the children. He further asserted, "If this Court was to grant Plaintiff Father's swap of parenting time schedules, because there is no material change in the amount of time the children spend in each household, and both parents would continue to share in providing love, support, and guidance of the minor children, the joint custodial environment would not be changed." Accordingly, plaintiff asserted that the relevant legal framework governing his motion was set forth in Shade , 291 Mich.App. at 25–28, 805 N.W.2d 1 (2010), under which normal life occurrences can constitute a change of circumstances sufficient to proceed to an evidentiary hearing regarding whether the proposed modification of parenting time is in the children's best interests. Plaintiff stated, "If the Court grants Plaintiff Father's modification of parenting time, the minor children will attend The Midland Academy of Advanced and Creative Studies ... beginning in the academic year 2016–2017."
Testimony at the evidentiary hearing on plaintiff's motion came from Catherine Ringey, Center Director for Sylvan Learning Center. No one from the child's school testified at the hearing regarding his academic progress or standing. Ringey admitted on cross-examination that the child was reading at his grade level, or close to it. Defendant's attorney pressed Ringey and noted that to be at his grade level equivalent, the child should have scored a 4.8 but his assessment showed a score of 4.7. According to Ringey, this was still the equivalent of reading in the 50th percentile. Two exhibits were shown regarding math tests the child took in March and May of 2016. On the test in March, he scored an 83. On the test in May, he scored a 92.
In her response to plaintiff's motion, defendant disputed that the parties shared joint physical custody and that plaintiff's proposed change would not significantly change the amount of time the children spent in each household. Defendant further contended that plaintiff's proposed changes would alter the established custodial environments that the children had with each parent. Defendant also moved to dismiss plaintiff's motion on the ground that, notwithstanding its label, it was actually a motion to change custody, and plaintiff had not made the threshold showing of a proper cause or change of circumstances as set forth in Vodvarka .
In its ruling from the bench, the trial court characterized this case as primarily a legal custody issue "about changing schools," and viewed the parenting-time issue as subordinate to the school issue. In the words of the court, "The parenting time request is really if [the school] change is made how can parenting time ... with each parent be accommodated." The trial court found that an established custodial environment existed with both parents and that changing the children's schools would not affect the established custodial environments. Accordingly, the court determined that, in order to succeed in his motion, plaintiff had to prove by a preponderance of the evidence that changing schools was in the best interests of the children. After addressing all of the statutory best-interest factors, MCL 722.23, and making findings on those relevant to the issue of changing schools, the trial court concluded that a preponderance of the evidence showed that changing schools was in the children's best interests. To accommodate this decision, the court granted plaintiff's motion to modify parenting time, reversing the existing parenting-time order so that plaintiff had 225 overnights a year, and defendant had 140. In doing so, the trial court reduced the children's overnights with defendant by 85 days, or nearly three months.
II. ANALYSIS
A. STANDARD OF REVIEW
"All custody orders must be affirmed on appeal unless the circuit court's findings were against the great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court made a clear legal error on a major issue." MCL 722.28 ; Pierron v. Pierron , 282 Mich.App. 222, 242, 765 N.W.2d 345 (2009), aff'd, 486 Mich. 81, 782 N.W.2d 480 (2010).
A court is not bound by what litigants choose to label their motions "because this would exalt form over substance." Johnston v. Livonia, 177 Mich.App. 200, 208, 441 N.W.2d 41 (1989). Rather, courts must consider the gravamen of the complaint or motion based on a reading of the document as a whole. See Stephens v. Worden Ins. Agency, LLC, 307 Mich.App. 220, 229, 859 N.W.2d 723 (2014). As indicated, the trial court characterized plaintiff's motion as primarily a legal custody issue "about changing schools"; plaintiff adopts this characterization on appeal. However, plaintiff moved to modify parenting time, primarily in response to the oldest child's preferences and stage of development and the youngest child's need for private tutoring. That the children would attend Midland Academy of Advanced and Creative Studies was presented as a consequence that would follow from the trial court's grant of plaintiff's proposed modification of parenting time. Regardless of how plaintiff wishes to characterize this matter, it entails a request that affects custody.
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. [ Corporan v. Henton , 282 Mich.App. 599, 605, 766 N.W.2d 903 (2009) (quotation marks and citations omitted).]
"The applicable burden of proof presents a question of law that is reviewed de novo on appeal." Pierron , 282 Mich.App. at 243, 765 N.W.2d 345 (quotation marks and citation omitted).B. RELEVANT LEGAL STANDARDS
The purposes of the Child Custody Act, MCL 722.21 et seq ., "are to promote the best interests of the child and to provide a stable environment for children that is free of unwarranted custody changes." Id . at 243, 765 N.W.2d 345. Constant changes in a child's physical custody can wreak havoc on the child's stability, as can other orders that may significantly affect the child's best interests. The Child Custody Act authorizes a trial court to award custody and parenting time arising out of a child custody dispute and imposes a gatekeeping function on the trial court to ensure the child's stability, as set forth in pertinent part in MCL 722.27 :
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age. ...
(b) Provide for reasonable parenting time of the child by the parties involved, by the maternal or paternal grandparents, or by others, by general or specific terms and conditions. Parenting time of the child by the parents is governed by section 7a.
(c) Subject to subsection (3)[ ], modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous
Subsection (3) is not relevant to the instant case.
judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. ... [Emphasis added.]
1. PHYSICAL CUSTODY
Relevant to the case at bar, in a child custody dispute, MCL 722.27(1) allows a court to award custody to one or more of the parties and reasonable parenting time to the parties involved, both in accordance with the best interests of the child. Physical custody refers to a child's living arrangements. The Child Custody Act does not define "physical custody" or the often-used phrases "sole physical custody" and "primary physical custody." However, "physical custody" is defined under the Uniform Child–Custody Jurisdiction and Enforcement Act, MCL 722.1101 et seq ., as "the physical care and supervision of a child." MCL 722.1102(n). Caselaw frequently uses "sole custody" or "primary physical custody" to distinguish between an award of custody to one parent and an award of joint physical custody.
In contrast to awarding sole or primary physical custody to one parent, a trial court has the option of awarding the parties joint custody, i.e., joint legal and joint physical custody, and the court must consider an award of joint custody at the request of either parent. MCL 722.26a(1). The term "joint physical custody" stems from MCL 722.26a(7)(a), which addresses a situation in which "the child ... resides alternately for specific periods with each of the parents." The term "joint legal custody" stems from MCL 722.26a(7)(b), which addresses a situation in which "the parents ... share decision-making authority as to the important decisions affecting the welfare of the child."
The parties in the instant case agree, and the trial court record makes clear, that the consent judgment of divorce gave defendant physical custody of the children and plaintiff liberal parenting time. At the time the motion at issue was made, the children were spending 140 overnights a year with plaintiff. The parties shared joint legal custody; that is, they shared decision-making authority concerning the important decisions affecting the welfare of their children.
2. PARENTING TIME
Parenting time is the time a child spends with each parent. "Whereas the primary concern in child custody determinations is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents." Shade , 291 Mich.App. at 28–29, 805 N.W.2d 1. A court bases a parenting-time order on its determination of the best interests of the child, and grants parenting time "in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time." MCL 722.27a(1). A child has a right to parenting time unless the court determines on the record by clear and convincing evidence that parenting time would endanger the child's physical, mental, or emotional health. MCL 722.27a(3). The trial court may consider the factors set forth in MCL 722.27a(7), along with the best-interest factors provided in MCL 722.23, when granting parenting time. Shade , 291 Mich.App. at 31, 805 N.W.2d 1.
Formerly MCL 722.27a(6).
3. MODIFICATION OF PREVIOUS JUDGMENTS OR ORDERS OR ISSUANCE OF NEW ORDERS THAT AFFECT THE ESTABLISHED CUSTODIAL ENVIRONMENT
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. Vodvarka addresses the requisite standards for showing proper cause or a change of circumstances relative to requests to modify child custody. Vodvarka , 259 Mich.App. at 509–514, 675 N.W.2d 847. Shade addresses the requisite standards for showing proper cause or a change in circumstances relative to requests to modify parenting time. Shade , 291 Mich.App. at 28–30, 805 N.W.2d 1. Notably, when a proposed change of circumstances will affect a child's established custodial environment, the applicable legal framework for analyzing the matter is that set forth in Vodvarka . Id . at 27, 805 N.W.2d 1. An established custodial environment exists "if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to the permanency of the relationship shall also be considered." MCL 722.27(1)(c).
a. THE PROPER CAUSE OR CHANGE OF CIRCUMSTANCES THRESHOLD
To establish a change of circumstances sufficient for a court to consider modifying a custody order, the movant must prove by a preponderance of the evidence 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." Vodvarka , 259 Mich.App. at 512, 513, 675 N.W.2d 847. "[T]he 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." Id. at 513–514, 675 N.W.2d 847. "[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." Id . at 512, 675 N.W.2d 847. As is the case with a change of circumstances, "[t]he 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." Id . If the movant does not establish proper cause or a change of circumstances, the trial court is prohibited from holding a child custody hearing:
The plain and ordinary language used in MCL 722.27(1)(c) ; MSA 25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors . [ Id . at 508–509, 675 N.W.2d 847 (quotation marks and citations omitted).]
The purpose of this threshold showing "is to minimize unwarranted and disruptive changes of custody orders, except under the most compelling circumstances." Corporan , 282 Mich.App. at 603, 766 N.W.2d 903.
As noted earlier, "[w]hereas the primary concern in child custody determinations is the stability of the child's environment and avoidance of unwarranted and disruptive custody changes, the focus of parenting time is to foster a strong relationship between the child and the child's parents." Shade , Mich.App. at 28–29, 805 N.W.2d 1 ; MCL 722.27a. Therefore, although normal life changes typically are insufficient to establish the proper cause or change of circumstances required to proceed to consideration of a child custody order, such changes may be sufficient for a court to consider modification of a parenting-time order unless the requested change would alter the established custodial environment. See Shade , 291 Mich.App. at 29, 30–31, 805 N.W.2d 1. However, "[i]f a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate." Shade , 291 Mich.App. at 27, 805 N.W.2d 1. In other words, if a change in parenting time would alter the established custodial environment, the normal changes that occur in a child's life "[would] not warrant a change in the child's custodial environment." Id . at 29, 805 N.W.2d 1.
b. BEST-INTERESTS ANALYSIS AND APPLICABLE BURDEN OF PROOF
If the movant seeking to change custody or parenting time successfully establishes proper cause or a change of circumstances under the applicable legal framework, the trial court must then evaluate whether the proposed change is in the best interests of the child by analyzing the appropriate best-interest factors. In matters affecting custody, when the child has an established custodial environment with each parent, the movant must prove by clear and convincing evidence that the proposed change is in the best interests of the child. Foskett v. Foskett , 247 Mich.App. 1, 6, 634 N.W.2d 363 (2001). In a parenting-time matter, when the proposed change would not affect the established custodial environment, the movant must prove by a preponderance of the evidence that the change is in the best interests of the child. Shade , 291 Mich.App. at 23, 805 N.W.2d 1. However, as indicated earlier, when the proposed parenting-time change alters the established custodial environment, the proposal is essentially a change in custody, and Vodvarka governs. See Shade , 291 Mich.App. at 27, 805 N.W.2d 1 ; Pierron , 486 Mich. at 92–93, 782 N.W.2d 480 ("[A] case in which the proposed change would modify the custodial environment is essentially a change-of-custody case."). Thus, after identifying the proper burden of proof, a court then proceeds to consideration of the best-interest factors. As this Court explained in Shade :
Both the statutory best interest factors in the Child Custody Act, MCL 722.23, and the factors listed in the parenting time statute, MCL 722.27a ( [7] ), are relevant to parenting time decisions. Custody decisions require findings under all of the best interest factors, but parenting time decisions may be made with findings on only the contested issues . [ Shade , 291 Mich.App. at 31–32, 805 N.W.2d 1 (emphasis added).]
If the movant cannot meet the applicable burden of proof, the court shall not grant the proposed change. See MCL 722.27(c).
C. APPLICATION
In light of the foregoing legal standards, we conclude that the trial court committed clear legal error in its choice and application of the legal framework under which to analyze plaintiff's motion. Notwithstanding the label plaintiff gave his motion or his inaccurate assertion that the proposed "swap" in parenting time would produce "no material change in the amount of time the children spend in each household," plaintiff's proposed modifications to parenting time effectively changed physical custody of the children from defendant to plaintiff.
The parties' judgment of divorce awarded legal custody to both parents, but physical custody of the children to defendant; the judgment did not award the parties joint physical custody. As noted, an award of physical custody primarily or solely to one party typically entails a situation in which the children receive physical care and supervision primarily from the parent awarded that status. That is the case here. In accordance with the parties' agreement that defendant would be the children's primary physical custodian, the children in the case at bar have resided with and been cared for and supervised primarily by defendant since entry of the judgment of divorce. Thus, it defies the plain meaning of the word "primary," as well as rudimentary mathematics, to say that reducing the primary custodian's overnights with the children from 225, or nearly 62% of the calendar year, to 140, or approximately 38% of the calendar year, does not change primary physical custody. By proposing a reduction in the number of overnights the children spend with defendant to a distinct minority of the year, plaintiff was proposing a change in custody, regardless of the label he gave his motion. Accordingly, the proper legal standard under which to review his motion was the more burdensome and restrictive standard set forth in Vodvarka , not the less restrictive legal framework set forth in Shade , and the first issue the trial court had to consider was whether plaintiff had established proper cause or a change of circumstances that met the standards set forth in Vodvarka .
Notwithstanding plaintiff's assertion to the contrary, the February 23, 2011 order (stipulated order regarding parenting time) does not expressly provide for joint physical custody; rather, it changes parenting time as indicated elsewhere in this decision, and it provides that "[a]ll other prior orders shall remain in full force and effect." Further, the Clinton County Friend of the Court referee who heard defendant's December 2013 motion for a change in parenting time noted that the effective order gave the parties joint legal custody and defendant primary physical custody of the children. In addition, after defendant argued that plaintiff's motion to change parenting time would actually change custody, the trial court appears to have acknowledged as much, noting that the outcome of plaintiff's motion would "change the label that's in the prior order." The only order that provided any "label" regarding custody was the judgment of divorce. Presumably, therefore, the trial court meant that the successful outcome of plaintiff's motion would render him primary physical custodian of the children.
Plaintiff admits that normal life changes are not sufficient to meet the Vodvarka threshold when it comes to a change in physical custody. Defendant accurately questions whether plaintiff's evidence regarding the younger child's academic performance and the older child's shared interests with plaintiff meets the Vodvarka standard for proper cause or a change in circumstances.
Contrary to our dissenting colleague's representation in Part VI of his opinion, the younger child was not performing at the 29th and 27th percentile in reading and mathematics, respectively, when the issue of proper cause or a change of circumstances was before the trial court. Rather, those figures were calculated by Sylvan Learning Center when first assessing the child in the second half of third grade. Both parents thereafter undertook various efforts to improve the child's academic performance. The child's performance levels at the time of the evidentiary hearing after fourth grade placed him at the 50th percentile in reading and the 64th percentile in math, according to Sylvan Learning Center. Plaintiff suggested that he could provide even more tutoring if the child lived with him, and the goal would be for the child to become college-ready upon graduation.
Even if we were to accept plaintiff's characterization of his motion as one simply to modify parenting time and change schools, we nevertheless would hold that the trial court committed error requiring reversal by finding, against the great weight of the evidence, that plaintiff's proposed change would not affect the established custodial environment the children share with defendant and by not analyzing the motion under the applicable legal framework set forth in Vodvarka . Shade , 291 Mich.App. at 27, 805 N.W.2d 1 ("If a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate.").
It bears repeating that a party's label is not dispositive of the substance of that party's motion. Otherwise, parties could simply label change-of-custody matters as change-in-parenting-time matters in order to benefit from the lower threshold set forth in Shade. In no world can a change from 225 overnights to 140 overnights be considered simply a change of parenting time and not a change in physical custody when the parties do not share joint physical custody. And if they do share joint physical custody, a reduction from 225 overnights to 140 overnights (85 days), would likely affect the established custodial environment, much like plaintiff argued when opposing defendant's December 2013 motion, which would have reduced plaintiff's parenting time by 52 days.
This Court addressed a similar issue in Pierron , 282 Mich.App. 222, 765 N.W.2d 345. The trial court found Pierron to be "very close on point"; unlike the trial court, however, we find that Pierron supports defendant's position, not plaintiff's. In Pierron , the defendant-mother had sole physical custody of the minor children, and the parties shared joint legal custody. Id . at 225–226, 765 N.W.2d 345. At the time of the judgment of divorce, both parents lived in Grosse Pointe Woods, and the children attended Grosse Pointe Public Schools. Id . at 226, 765 N.W.2d 345. When the defendant later purchased a house in Howell and sought to enroll the children in Howell Public Schools, the plaintiff-father moved to prevent the change in school districts on the ground that it would significantly modify the children's established custodial environment. Id . at 227–229, 765 N.W.2d 345.After a six-day hearing, the circuit court in Pierron found that the children had established custodial environments with both parents and that the defendant's removal of the children to Howell Public Schools would change the established custodial environments of the children. Id . at 230–232, 765 N.W.2d 345. The circuit court determined that because the change in schools would alter the children's established custodial environments, the defendant had to prove by clear and convincing evidence that the change was in the children's best interests. Id . at 232, 765 N.W.2d 345. After conducting a best-interest analysis, the trial court found that the defendant had not met her burden of proof and therefore granted the plaintiff's request that the children remain enrolled in Grosse Pointe Public Schools. Id . at 242, 765 N.W.2d 345. The defendant appealed this ruling.
On appeal, this Court agreed with the trial court that the children had an established custodial environment with both parents but concluded that the court erred "when it found that the proposed change of school districts would alter the children's established custodial environment." Id . at 248, 765 N.W.2d 345. The Court mentioned at the outset that primary physical custody would not change in order to accommodate the change of schools:
We first note that the proposed change of school districts would not have changed the actual custody arrangements in this case. Defendant has at all times had primary physical custody of the children since the parties' divorce, and plaintiff has seen and interacted with the children only during his parenting time. Enrollment of the children in the Howell Public Schools would not alter this arrangement in any way—defendant would still maintain primary physical custody , and plaintiff would still be free to exercise liberal and reasonable parenting time just as he had done before the change of school districts. [ Id . at 248–249, 765 N.W.2d 345 (emphasis added).]
Although the Pierron Court acknowledged that the change "might require minor modifications to [the] plaintiff's parenting time schedule," the Court concluded that it did not rise to the level of affecting the children's established custodial environment with the plaintiff. Id . at 249, 765 N.W.2d 345. The Court explained why as follows:
Since the divorce, defendant has always been the primary physical custodian of the minor children. In contrast, plaintiff has seen the children and exercised parenting time only when his personal and work schedules have accommodated it. Enrolling the children in the Howell Public Schools quite simply would not alter this arrangement. Plaintiff would still be free to exercise parenting time with the children after school and on weekends and holidays. Such a schedule would not be materially different than plaintiff's current parenting time schedule. [ Id . at 250, 765 N.W.2d 345.]
Because only a change to the parenting-time schedule was at issue, the defendant was required only to prove by a preponderance of the evidence that the change was in the best interests of the children. Id . And even then, the court needed only to evaluate the best-interest factors relevant to a school change. Id . at 250–253, 765 N.W.2d 345. The Michigan Supreme Court granted the plaintiff's application for leave to appeal and affirmed this Court's analysis and conclusion regarding whether the proposed change in schools would affect the children's established custodial environment with plaintiff. Pierron , 486 Mich. at 86–87, 782 N.W.2d 480.
Pierron supports the conclusion in this case that a substantial modification of parenting time would alter the established custodial environment that the children have with defendant. Whereas minor modifications that leave a party's parenting time essentially intact do not change a child's established custodial environment, see id . at 87, 782 N.W.2d 480, significant changes do. See also Rains v. Rains , 301 Mich.App. 313, 323–324, 836 N.W.2d 709 (2013) (indicating that even when parents have joint physical custody and have established a "joint custodial environment," changes that "substantially reduce the time a parent spends with a child would potentially cause a [change] in the established custodial environment"); Shade , 291 Mich.App. at 25–28, 805 N.W.2d 1 (stating that a change in parenting time did not affect the established custodial environment because it left the parties with approximately the same number of parenting-time days); Powery v. Wells , 278 Mich.App. 526, 528, 752 N.W.2d 47 (2008) (holding that a modification of parenting time that would relegate a parent who had been equally active in the child's life to the role of a "weekend parent" would amount to a change in the child's established custodial environment with that parent); Brown v. Loveman , 260 Mich.App. 576, 596, 680 N.W.2d 432 (2004) (indicating that the modification of parenting time from each parent having nearly equal parenting time to one parent having parenting time during the school year and the other having parenting time during the summer "necessarily would amount to a change in the established custodial environment").
In the instant matter, the plaintiff's proposal would reduce the children's overnights with defendant from 225 a year to 140 a year; the 85-day reduction is a nearly 40% decrease in the time the children would spend with defendant. Time spent with the children would be primarily on the weekends and in the summer. "If a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate." Shade , 291 Mich.App. at 27, 805 N.W.2d 1. Accordingly, even if one could construe plaintiff's motion as simply one seeking the modification of parenting time, the Vodvarka framework would still apply because the proposed changes would alter the children's established custodial environment with defendant.
Plaintiff attempts to rebut defendant's argument about being relegated to a weekend/summer parent by contending that, as shown in Pierron , the distance between defendant's and plaintiff's homes and the school need not affect the equation, and noting that, the parties have lived a significant distance from one another for years. Plaintiff points out that the distance change in Pierron was "far more substantial, yet it was allowed." However, the change in Pierron was allowed because, notwithstanding the distance from Grosse Pointe Woods to Howell, custody did not change and the change in schools necessitated only minor modifications in the plaintiff's exercise of parenting time, not the nearly 40% reduction in defendant's parenting time called for in this case.
Plaintiff also argues that the 10 weeks of parenting time during summer vacation that his proposal allows defendant "has the effect [of] preserving and promoting the custodial environment that the children have with [defendant]." However, plaintiff's emphasis on the long stretch of summer parenting time defendant would have with the children does not offset the fact that defendant loses more than 12 weeks of parenting time under plaintiff's proposal. Further, central to the children's established custodial environment with defendant was the support and guidance defendant gave and the material needs she met relative to the children's school attendance. Plaintiff's proposed modification of parenting time would not only substantially reduce the time defendant would spend with the children, it would also change the character of her interaction with the children. Therefore, the proposal significantly alters the children's established custodial environment with defendant. Finally, plaintiff argues that the determinative factor is not the reduction in defendant's day-to-day contact with the children, but "the record showing that the children's best interests would be served by having plaintiff take over the day-to-day management of the children's education that determined the result in this case." This argument misses the point—before a court may even consider whether a proposed custodial change is in the best interests of the children, it must first determine whether the movant has made the required showing of proper cause or a change of circumstances. In this case, under either a custody analysis or a parenting-time analysis, the applicable legal framework for determining whether the threshold showing has been made is that found in Vodvarka, and the trial court erred when it incorrectly applied the law in this instance. See Shade , 291 Mich.App. at 27, 805 N.W.2d 1.
III. RESPONSE TO THE DISSENT
We agree with the dissent on a number of issues. We agree with the dissent's explication of the law governing child custody and parenting-time decisions, and we agree that the Legislature's intent is to provide for the best interests of the children, which includes preventing unwarranted changes in custody and parenting time. We also agree that a grant of physical custody is irrelevant to the factual question of whether, and with whom, a child has an established custodial environment. Additionally, we agree that the trial court properly decided that the children at issue have an established custodial environment with each parent. However, we disagree on two key issues.First, without imputing any improper intention, we see in plaintiff's motion an attempt to change primary physical custody under the guise of a change in parenting time. This attempt may arise from plaintiff's interpretation of the February 23, 2011 stipulated modification of parenting time as a stipulation to joint legal and joint physical custody. However, as we pointed out, defendant disputes this interpretation, and the referee who heard defendant's December 2013 parenting-time motion understood judgment of divorce continued to govern the custodial arrangements. Nevertheless, because the proposed change is essentially a change in physical custody, the first question is whether plaintiff has met Vodvarka's more stringent threshold required to proceed to a best-interests hearing.
Second, even if we did view the proposed change as merely a change in parenting time (that also entailed a move from DeWitt to Midland), the caselaw cited in our decision compels us to conclude that a change of the magnitude suggested in this case affects the children's established custodial environment with both parents, again making Vodvarka the proper legal framework for resolving the dispute. Sometimes, judges must agree to disagree; this case presents just such an occasion.
IV. CONCLUSION
The trial court committed clear legal error in its selection and application of the governing law. Because the effect of granting plaintiff's motion was a change in physical custody, the trial court should have applied the legal standards set forth in Vodvarka to determine whether plaintiff established proper cause or a change of circumstances sufficient to revisit the custody issue. Even if the trial court had been correct in treating plaintiff's motion as one to modify parenting time, Vodvarka remained the proper standard to apply in evaluating whether the proposed modification was in the best interests of the children because the proposed modification would modify the children's established custodial environment. Shade , 291 Mich.App. at 27, 805 N.W.2d 1. In light of these errors, we vacate the trial court's order and remand for further proceedings in compliance with the statutory requirements of the Child Custody Act and relevant caselaw regarding a change of custody. Assuming on remand that the trial court finds by a preponderance of the evidence that plaintiff has met the Vodvarka standard, plaintiff must still prove by clear and convincing evidence that plaintiff's proposed change is in the best interests of each of his children. See Foskett v. Foskett , 247 Mich.App. at 6, 634 N.W.2d 363 (noting that "[t]his higher standard ... applies when there is an established custodial environment with both parents"). In doing so, the court must evaluate all the best-interest factors set forth in MCL 722.23, not just those related to the contested issues. See Shade , 291 Mich.App. at 31–32, 805 N.W.2d 1.
This Court further stresses that the best interests of each child must be considered before the child's established custodial environment may be changed. Although the trial court may certainly take into account the siblings' desire to be with one another, it may not change one child's established custodial environment based solely on the best interests of the other child. See MCL 722.27(1)(c) ("The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.").
Vacated and remanded. We do not retain jurisdiction. Defendant, as the prevailing party, may tax costs. MCR 7.219.
M.J. Kelly, P.J., concurred with Beckering, J. O'Connell, J. (dissenting).
The majority's visceral response to a major change in the parties' parenting time is understandable, but on a close scrutiny, I conclude the trial court's analysis of the facts, the law, the process, and its application of the law in this case was faultless. The majority opinion frames this case as involving a change of custody, but this is not a change of custody case; this is a factually complex parenting-time case in which the trial court ultimately held the children's educational needs paramount to the parents' dispute over which of them should have more time with the children.
In other words, the trial court in this case did exactly what it should do when faced with a complex family law issue—it followed the procedures this Court has outlined to resolve such disputes and, in the end, placed the children's best interests first. I respectfully dissent from the majority's conclusion that the trial court committed a clear legal error in the framework it applied to this case.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant-mother, Kimberly Ann Orr, and plaintiff-father, John Allen Lieberman, divorced in 2008. Their consent judgment granted Orr sole physical custody of their two children, granted joint legal custody to the parties, and granted Lieberman a liberal amount of parenting time. In 2010, the trial court allowed Orr's motion to change the children's residence from their previous home in East Tawas, Michigan. Orr moved to DeWitt, Michigan, and Lieberman moved shortly thereafter to Midland, Michigan.
Parenting time changed after the parties moved. In February 2011, the parties stipulated to Lieberman having parenting time three weekends a month and during the majority of the children's summer vacation. As a result, Lieberman received 140 overnights a year and Orr received 225 overnights a year. In December 2013, Orr filed a motion for a change in parenting time. Her motion requested a modification of parenting time to expand her summer and weekend time with the minor children.
It could be considered a harbinger of things to come that Orr complained of the burdensome responsibility of day-to-day parenting, including assuring that the children's school assignments and homework were completed, and sought more fun and recreational time with the children.
A referee heard the motion on January 28, 2014. The referee found that the children had an established custodial environment with both parents. Following Orr's objections, the trial court held a hearing on March 20, 2014. After considering the parties' admissions and the stipulated parenting-time order from 2011, the trial court found that the children looked to both parents for guidance, discipline, the necessities of life, and parental comfort. Accordingly, it agreed with the referee's finding that the children had an established custodial environment with both parents.
At oral argument and in the briefs filed with this Court, the parents conceded that the children have an established custodial environment with both of them. As I will discuss in Part V of this opinion, this is an important development that the majority overlooks.
In May 2016, Lieberman moved to change the children's school to Midland Academy. He alleged that the youngest child began struggling in school in 2014 and that his fluency scores in reading and math had approached the cut-off point for risk. While the child improved with tutoring over the summer of 2015, he again began falling behind during the 2015–2016 school year. Lieberman sought to facilitate the change by "swap[ping] the current parenting time schedule" so that the children would reside primarily with Lieberman during the school year and with Orr during most weekends and the majority of summer vacation.
Orr moved to dismiss the petition, alleging that Lieberman had not stated proper cause or a change of circumstances sufficient to justify modifying the children's parenting time. The trial court ruled that the younger child's issues with school performance and both children's issues with hygiene might constitute a proper cause or change of circumstances sufficient to warrant revisiting the parenting-time order. The trial court allowed the case to proceed to a hearing, stating that it would make its ruling regarding change of circumstances after the parties presented proofs.The parties presented evidence that both are extensively involved in the children's lives. Lieberman testified that he and the children enjoyed visiting museums, fishing, mountain biking, and kayaking together. Orr testified that she and the children enjoyed fishing, boating, camping, and horseback riding together. Both parties testified about their involvement in the children's schooling, both parties presented evidence that the children discussed daily concerns and life events with them, and both parties presented evidence of supportive and nurturing home environments.
Both parties also testified that after the youngest child began to struggle with reading, they assisted. Lieberman testified that after the younger child's test scores began falling, he engaged Sylvan Learning Center for educational assistance. Catherine Ringey, the Director for Sylvan Learning Center in Midland, testified that some children do better with more individualized instruction. According to Ringey, Sylvan assessed the younger child when he was in third grade and the child initially scored in the 29th percentile for reading and the 27th percentile for math. Sylvan recommended tutoring the child as much as possible.
By the end of the summer of 2015, the child was in the 54th percentile for reading and "his confidence soared." Ringey characterized the child's improvement as impressive, but she wanted the child to advance to around the 80th percentile to be competitive "through school and in college and jobs...." According to Lieberman, he reached out to Orr about enrolling the child in Sylvan during the school year, but Orr did not do so.
Orr testified that she did not trust Sylvan's for-profit nature and did not enroll the child in tutoring during the school year because he was close to reaching his benchmark proficiencies. Instead of paid tutoring, Orr practiced reading and math with the child at home and asked the child's teacher to enroll him in a special class. Ringey testified that as a result of not receiving tutoring during his fourth grade year, the child's reading score dropped to the 50th percentile because he was not progressing at the same rate as his peers. The child was also eventually enrolled in math tutoring, and his math percentile score improved from the 27th to the 63d percentile.
Lieberman testified that he sought to modify parenting time so that he could enroll the children in Midland Academy because it had small class sizes, a focus on arts, sciences, and extracurricular activities, and created a curriculum for each individual child. Orr testified that uprooting the children from their current school environment was unreasonable and that she was concerned that Midland Academy did not offer extracurricular programs that the older child enjoyed.
Following the hearing, the trial court ruled that the case was a parenting-time case that was primarily about changing schools. It found that the children shared their concerns with both parents and that both parents provided the children with material needs and supported them in their activities. The court further found that "the children in this case have two great parents, and I'm very impressed with the extended families and step families, it seems like these kids have a lot of people that love them, a lot of people they feel comfortable around." Accordingly, the trial court found that the children had an established custodial environment with both parents. It also found that the proposed modification to parenting time would not affect the children's relationships with their parents.On that basis, the trial court applied the preponderance-of-the-evidence standard to its findings regarding the children's best interests. Considering the best-interest factors, it found that the parties were equal on most factors. However, the trial court found that the capacity to give the children guidance, and the home, school, and community record of the children favored Lieberman because he was more proactive in remedying the younger child's academic difficulties. The trial court found that Orr's more relaxed parenting style may have contributed to the children's educational and hygiene issues. Finally, the trial court found that the parties' willingness to facilitate a close relationship with the other parent slightly favored Lieberman.
Ultimately, the trial court found that (1) a proper cause or change of circumstances existed, (2) a preponderance of the evidence supported changing the children's school to Midland Academy, and (3) changing the parenting-time schedule to accommodate the change in school was in the children's best interests. The trial court switched Lieberman and Orr's parenting-time schedule so that Orr received 140 overnights a year, primarily during weekends and the summer, and Lieberman received 225 overnights a year, primarily during the school year.
II. JURISDICTION
As an initial matter, this Court lacks jurisdiction to hear this case as an appeal of right. Orr has appealed an order modifying parenting time and addressing school enrollment. This Court has concluded that neither school-enrollment orders, Ozimek v. Rodgers , 317 Mich.App. 69, 75; 893 N.W.2d 125 (2016), nor parenting-time orders, Madson v. Jaso , 317 Mich.App. 52, 66; 893 N.W.2d 132 (2016), are "final orders" appealable by right. The order in the present case is only appealable by leave, and because this Court has not granted leave to appeal, we do not have jurisdiction to hear this case.
The Michigan Supreme Court has recently ordered argument on whether to grant leave to appeal Ozimek. Ozimek v. Rodgers, 500 Mich. 940, 889 N.W.2d 507 (2017), and ordered that an application for leave to appeal in Madson be held in abeyance pending the decision on Ozimek and another related case, Madson v. Jaso, 889 N.W.2d 509 (Mich. 2017).
This case is a prime example of why parenting-time orders are and should be appealable by leave only. Public policy favors prompt and final adjudication of custody disputes. See MCL 722.28. Sagas about parenting time are best resolved by judges in the family division of the circuit court, where the same judge consistently rules on matters concerning a single family, allowing the judge to become intimately familiar with the facts and situations of each family, the best interests of the children, and the effect of the changes and the parties' disputes on the stability of the children's environment. In this case, the saga has taken place over 9 years and has involved a fluid, changing parenting-time situation. The trial court is in the best position to end the struggle for control between the parents by ruling on what is in the best interests of the children from its outside, yet intimately familiar, seat.
III. STANDARDS OF REVIEW
This Court must affirm custody orders "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." MCL 722.28. "A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law." Corpo ran v. Henton , 282 Mich.App. 599, 605, 766 N.W.2d 903 (2009) (quotation marks and citation omitted). We review for clear legal error the trial court's determinations on questions of law. Id .
We review the trial court's decision regarding whether a party has demonstrated proper cause or a change of circumstances to determine whether it is against the great weight of the evidence. Id . We also review the trial court's finding regarding the existence of an established custodial environment under the same standard. Pierron v. Pierron , 486 Mich. 81, 85, 782 N.W.2d 480 (2010). A finding is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction. Corporan , 282 Mich.App. at 605, 766 N.W.2d 903.
IV. LEGAL STANDARDS
Before making any decision on a proposed change that would affect the welfare of a child, the trial court must determine whether the proposed change would modify the child's established custodial environment. Pierron , 486 Mich. at 85, 782 N.W.2d 480. Not every parenting-time adjustment will modify a child's established custodial environment:
While an important decision affecting the welfare of the child may well require adjustments in the parenting time schedules, this does not necessarily mean that the established custodial environment will have been modified. If the required parenting time adjustments will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed. [ Pierron , 486 Mich. at 86, 782 N.W.2d 480 (citation omitted).]
A child has an established custodial environment with both parents when the child "looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort." Berger v. Berger , 277 Mich.App. 700, 707, 747 N.W.2d 336 (2008).
When determining whether and with whom a child has an established custodial environment, the focus is on the child's circumstances, not on the order or orders that created those circumstances. Hayes v. Hayes , 209 Mich.App. 385, 388, 532 N.W.2d 190 (1995). Thus, "[t]he trial court's custody order is irrelevant to this analysis." Id .
A trial court may only amend a previous judgment or order concerning child custody if the moving party shows proper cause or change of circumstances. Corporan , 282 Mich.App. at 603, 766 N.W.2d 903. Accordingly, the trial court must determine whether proper cause or a change of circumstances exists before revisiting a custody order. Id . The trial court may—but need not—hold an evidentiary hearing to determine whether the circumstances rise to the level of proper cause or change of circumstances. See id . at 605. The purpose of this framework is to "erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders." Vodvarka v. Grasmeyer , 259 Mich.App. 499, 509; 675 N.W.2d 847 (2003) (quotation marks and citation omitted).
Proper cause exists if there are "one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Id . at 511, 675 N.W.2d 847. A change of circumstances exists if, "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." Id . at 513, 675 N.W.2d 847. Normal life changes, whether positive or negative, do not constitute a change of circumstances sufficient to warrant changing a child's established custodial environment. Id . However, when a proposed parenting-time change does not modify the child's custodial environment, normal life changes may constitute a sufficient change of circumstances to warrant the parenting-time change. Shade v. Wright , 291 Mich.App. 17, 30–31, 805 N.W.2d 1 (2010).
If a proposed modification would change a child's established custodial environment, the moving party must show by clear and convincing evidence that the change is in the child's best interests. Pierron , 486 Mich. at 92, 782 N.W.2d 480. However, if the proposed modification does not change the child's custodial environment, the moving party must show by a preponderance of the evidence that the change is in the child's best interests. Id . at 93, 782 N.W.2d 480.
V. THE MAJORITY'S FLAWED ANALYSIS
It is a legal adage that hard cases make bad law. The root of this adage is particularly applicable to this case:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend. [ Northern Securities Co. v. United States , 193 U.S. 197, 400–401, 24 S.Ct. 436, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).]
In this case, the majority's instinct that switching parenting time from favoring Orr to favoring Lieberman must be wrong has led it to shortcut the proper legal framework with the pressure of a hydraulic saw.
First, the majority's method for reaching the result it seeks is to conflate a grant of physical custody with a child's custodial environment. In doing so, the majority ignores that the 2008 custody order has no bearing on whether and with whom the children have an established custodial environment. The trial court's custody order is irrelevant to determining the children's established custodial environment. Hayes , 209 Mich.App. at 388, 532 N.W.2d 190. The focus is on the children's actual environment, and "it makes no difference whether that environment was created by a court order, without a court order, in violation of a court order, or by a court order that was subsequently reversed." Id .
In reviewing the legal framework laid out in Part IV of this opinion, one will notice that whether and to whom the trial court initially granted sole or primary physical custody is found nowhere within it. Indeed, one can read Judge MURRAY 's excellent decision in Vodvarka until the cows come home, and one will not find the phrase "physical custody" in that opinion. That is because, as this Court stated in Hayes and has stated again many times since, the custody order is irrelevant: the controlling consideration is the child's custodial environment at the time of the hearing.
In order to reach its desired result, the majority changes the paradigm that all courts use to resolve parenting-time disputes. It casts out the courts' primary goal of minimizing disruptive changes to the children's custodial environments. The majority then disregards the numerous court proceedings that have occurred since that divorce judgment. Traditionally, sole custody would result in one parent having significantly more overnights, and joint custody would result in an approximately equal measure, but as these matters go, those labels lose meaning over time. Each situation is different and, because of modifications to parenting time, each situation is fluid. To whom the children look for love, guidance, and support is not determined by an initial custody label.
For this reason, the majority's conclusion that the trial court committed a clear legal error in evaluating the initial change of circumstances under Shade rather than under Vodvarka is fatally flawed. Shade provides that normal life changes may constitute a sufficient change of circumstances to warrant modifying parenting time but not the children's custodial environment. Shade , 291 Mich.App. at 30–31, 805 N.W.2d 1. Vodvarka provides that the children's conditions must have materially changed to warrant a parenting-time modification that will affect the children's custodial environment. Vodvarka , 259 Mich.App. at 513–514, 675 N.W.2d 847. In either case, it is not the children's physical custody that is of concern, it is the children's custodial environment .
The parties do not dispute that the children have an established custodial environment with both parents and have had that environment for some time. And contrary to the majority's conclusion, for reasons that shall be discussed, the resulting change to parenting time in this case will not alter the children's established custodial environments. Vodvarka does not apply, and the trial court did not err by failing to apply it.
Even if Vodvarka did apply, the trial court properly progressed to an evidentiary hearing. The trial court may hold an evidentiary hearing on the threshold question of whether proper cause or a change of circumstances exists to warrant revisiting a custody order. See Corporan, 282 Mich.App. at 605, 766 N.W.2d 903. The trial court's decision to hold a hearing was appropriate in this case, in which it was unclear whether one of the children's educational struggles rose to the level of a normal life change or a major life change, and where it was unclear whether the parenting-time change would alter the children's custodial environments.
Second, the majority's conclusion that an 85-day change in the number of parenting-time overnights must necessarily change the children's custodial environments is unsupported. The majority neatly sidesteps this issue by treating it as a legal issue when it is a factual issue. See Pierron , 486 Mich. at 85, 782 N.W.2d 480 (indicating that we review the trial court's decisions regarding established custodial environments as issues of fact). As the attorneys illustrated through their vehement opposition at oral argument to setting a specific number of days as a threshold, no arbitrary number of days will determine to whom children look for love, guidance, and necessities. The children had established custodial environments with both parents when the 140- and 225-day split favored Orr. The trial court found that the children would continue having established custodial environments with both parents when the 140- and 225-day split favored Lieberman. The trial court found that both parents were active parents, devoted to their children, and communicated with them regularly without regard to whose house the children were staying in overnight. While major changes in parenting time may result in a change to children's established custodial environments, the majority treats this possibility as conclusive solely on the basis that the change in this case involves 85 overnights. In doing so, the majority ignores the trial court's specific factual findings when those findings were not against the great weight of the evidence.
The majority's conclusion leads me to question what number of days automatically transforms a parenting-time change into a change of custodial environment—10 days, 20 days, 50 days, 85 days? While developing a cutoff might be helpful to some family law practitioners, such a mathematical approach would take into account only one factor of the multifaceted, factually complex issues of custodial environments. Such an approach would be extremely unwise. Unfortunately, by determining that an 85-day change necessarily alters an established custodial environment, the majority opinion has begun to construct the very mathematical cutoff that the litigants' attorneys advised against.
VI. MY ANALYSIS
In analyzing these issues under the legal framework I have laid out in Part IV of this opinion, I conclude that the trial court's decision was legally sound and that its factual findings were not against the great weight of the evidence.
A. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Orr first contends that the trial court erred by finding that the youngest child's difficulties in school constituted proper cause or a change of circumstances sufficient to revisit the children's custody order. I disagree.
In Corporan , this Court considered whether a child's declining grades constituted a change of circumstances that would warrant revisiting a custody order. Corporan , 282 Mich.App. at 608, 766 N.W.2d 903. In that case, the child had changed schools and received lower grades in certain subjects at the new school but was not in danger of failing any subject. Id . at 608–609, 766 N.W.2d 903. We concluded that the trial court's determination that a minor decline in the child's grades was not a material change of circumstances and was not against the great weight of the evidence. Id . at 609, 766 N.W.2d 903.
Corporan does not stand for the proposition that a child's difficulties in school can never constitute proper cause or a change of circumstances. To the contrary, whether a child's academic struggles constitute proper cause or a change of circumstances sufficient to change a child's parenting time or custodial environment depends on the magnitude of the child's difficulties and the effect those difficulties will have on the child's future. The trial court is uniquely equipped to resolve such factually intricate questions.
In this case, Lieberman alleged that the younger child was becoming deficient in foundational skills—reading and mathematics—that Ringey testified could pose a threat not only to the child's future educational success, but to the child's successes into adulthood. The child was nearing the cutoff point for academic risk and was at the 29th and 27th percentiles, respectively, among students his age. Unlike the child in Corporan , the child in this case was at serious educational risk from deficiencies that posed a threat to the child's long-term success. In my opinion, the child's academic difficulties were serious enough that the trial court would have been warranted in finding that they rose to the level of significantly affecting the child's well-being under Vodvarka . I conclude that under the facts of this case, the trial court's decision to revisit the parenting-time order was not against the great weight of the evidence.
While hygiene difficulties were also a factor in this case and played a part in determining the children's best interests, the parties and trial court clearly focused on the younger child's educational difficulties in relation to a change in parenting time.
My conclusion would render moot the question of whether the trial court properly applied Vodvarka or Shade. Under either standard, the trial court properly revisited the children's parenting time.
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B. ESTABLISHED CUSTODIAL ENVIRONMENT VERSUS PHYSICAL CUSTODY
Orr next contends that the trial court erred when it found that the children had an established custodial environment with both parents because the parties' divorce order granted her sole physical custody. According to Orr, this fact alone results in a change of custody. I could not more vehemently disagree. As I discussed in Part IV of this opinion, a parenting-time modification does not necessarily change a child's established custodial environment.
In this case, both parents provided the children with loving and supportive home environments. Both parents engaged the children in activities that suited the children's interests. Both parents discussed how the children came to them with difficulties to seek comfort and advice. The children completed school assignments at both homes, and both parents were significantly involved in the children's education. I conclude that the trial court's finding that the children had an established custodial environment with both parents was not against the great weight of the evidence.
Second, Orr contends that the trial court erred when it found that modifying the children's parenting time would not alter their established custodial environments. Again, I disagree.While a change in parenting time from 225 overnights to 140 overnights is certainly at the outer edge of a parenting-time change (and to some practitioners and at least two appellate judges, beyond a cutoff), I cannot say that the trial court's conclusion that it would not change the children's established custodial environment was against the great weight of the evidence. Orr provided no evidence to support her assertions that this change would alter how the children look to her for guidance, necessities, and support. To the contrary, Lieberman was able to maintain an established custodial environment with the children while having exactly the same parenting-time schedule to which Orr objects. And the record indicates that both parents have striven to maintain close bonds with their children, provide them with physical comforts, engage them in their interests, and counsel them when they have difficulties, and both parents intend to continue to do so in the future. There is no evidence to support that the altered parenting-time schedule would change to whom the children look for guidance, support, and necessities. Accordingly, I conclude that the trial court's finding was not against the great weight of the evidence.
C. THE CHILDREN'S BEST INTERESTS
Orr contends that the trial court clearly erred by applying the preponderance-of-the-evidence standard to the children's best interests instead of the clear-and-convincing-evidence standard. I disagree.
Orr bases her argument on her previous assertion that the trial court incorrectly concluded that a parenting-time modification would not change the children's established custodial environment. However, because I have rejected that argument, the preponderance-of-the-evidence standard was the appropriate standard. The trial court considered all the relevant best-interest factors in reaching its conclusion. I conclude that the trial court applied the proper standard when determining the children's best interests.VII. CONCLUSION
Under the unique set of facts in this case, the trial court concluded that both Lieberman and Orr were excellent parents and that a change in schools was necessary to accommodate the struggling child's educational needs. To effect the change in schools, the trial court flipped the parenting-time schedule in favor of Lieberman. The flip appears to be at the outer edge mathematically speaking, but standing alone, it provides no basis to overturn the trial court's finding that this change would not alter the children's custodial environments. I cannot conclude that the trial court committed clear legal error in its consideration of the evidence within the applicable framework. Neither can I find that its decision was against the great weight of the evidence or that it abused its discretion in its parenting-time decision. The trial court made a difficult, but correct, decision.
I would affirm the trial court's supported and well-reasoned decision.