Opinion
367325
02-15-2024
ELEINA MIKHAYLOV, Plaintiff-Appellant, v. JOHN STEELE III, Defendant-Appellee.
UNPUBLISHED
Oakland Circuit Court Family Division LC No. 2020-503163-DM
Before: GADOLA, C.J., and BORRELLO and BOONSTRA, JJ.
PER CURIAM
Plaintiff appeals by right the trial court's order granting defendant's motion to modify custody and parenting time with respect to the parties' three minor children NS, ES, and JS (collectively, the children). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties married in 2009. The children were born during the marriage. Plaintiff is a neurologist, and defendant is a neurosurgeon. In 2020, plaintiff filed this divorce action. In August 2021, the parties reached a custody and parenting-time settlement agreement, in which the parties were to share joint physical and joint legal custody of the children. Plaintiff had recently moved to Driftwood, Texas, a suburb of Austin. The settlement agreement provided that during the next two years, i.e., from August 2021 to August 2023, the children would continue living with defendant in Michigan and attending school in the Bloomfield Hills School District. Plaintiff was to travel from Texas to Michigan for her parenting time during the school year, and it was anticipated that she would exercise essentially equal parenting time by obtaining a Michigan residence to use while the children were attending school. Plaintiff could exercise her parenting time in Texas during school breaks. The agreement provided that after this initial two-year period, the children would move to Texas and attend school there. It was anticipated that defendant would also move to Texas at that time and that the parties would continue to share joint legal and joint physical custody. Oakland Circuit Judge Jacob James Cunningham approved the custody and parenting-time settlement agreement. In May 2022, a further settlement was reached regarding the remaining issues in the case, including the division of assets and liabilities. In July 2022, Judge Cunningham signed a consent judgment of divorce, which provided that the parties would have joint legal and joint physical custody of the children, and contained the following provisions relevant to this appeal:
The identity of the judge who presided at various points of the case is pertinent to some of plaintiff's appellate arguments. We will thus identify the judge by name when appropriate.
7. For summer 2022, [plaintiff] shall be permitted no less than 6 weeks of parenting time up to approximately 8 weeks of parenting time. The exact dates and times of exchanges shall be determined by the parties, but the children will be returned to Michigan at least one week before the start of the 2022-2023 school year. For the 2023 summer, [defendant] shall have the children no later than July 17, 2023. Commencing July 17, 2023, the children shall go to Texas to reside with [plaintiff].
8. The children shall remain in Michigan for the 2022-2023 school year. They shall remain in the Bloomfield Hills public school system.
9. The children shall relocate to Driftwood, Texas to reside with [plaintiff] in August 2023. The intent is for [defendant] to relocate to Driftwood with or soon after the children. If and when [defendant] should move to Driftwood or a neighboring city, the parties shall engage in an equal parenting time schedule that is structured in the best interests of the children.
10. If [defendant] should petition this Court for the children to remain in Michigan following the 2022-2023 school year on the basis that they are adjusted and/or are doing well academically and/or emotionally, this shall not be considered a change in circumstance or proper cause. Furthermore, if [defendant] should petition the Court to modify the parties' agreement as previously stated, the Court should consider granting sole physical custody to [plaintiff] and otherwise enforcing this Agreement as written.
11. If [plaintiff] should, at any time, before the youngest of the parties' children turns 18 years of age, relocate out of Driftwood, or a neighboring community (the children must remain in the same school district) this Court should consider this a change of circumstance and/or proper cause and further consider providing [defendant] with sole physical custody of the parties' children.
Two days later, the case was administratively reassigned to Oakland Circuit Judge Maureen Hannon Kinsella, who presided for the remainder of the proceedings, because Judge Cunningham had been reassigned to another division of the Oakland Circuit Court.
In June 2023, defendant filed a motion to modify custody and parenting time, seeking to have the children continue to live with him in Michigan and attend school in Bloomfield Hills. He argued that a move to Driftwood in August 2023, as contemplated by the consent judgment of divorce, would be detrimental to the children's wellbeing for various reasons discussed later in this opinion. Plaintiff opposed the motion. Following a three-day evidentiary hearing, the trial court issued a 37-page opinion and order granting defendant's request that the children continue to live with him in Michigan and attend school in Bloomfield Hills. Plaintiff could continue to exercise parenting time as she had been doing the preceding two years, as well as additional parenting time if she is able to travel to Michigan at additional times.
This appeal followed. Plaintiff filed in the trial court a motion for stay pending appeal, which the trial court denied. She then filed a similar motion in this Court, and this Court denied the motion. Plaintiff appealed to our Supreme Court from this Court's denial of her request for a stay, and our Supreme Court granted her request for a stay pending appeal. Mikhaylov v. Steele, 512 Mich. 912, 912 (2023). Because of our Supreme Court's order staying the trial court's order, the children have been living with plaintiff in Texas and attending school in Texas during the pendency of this appeal, as provided for in the consent judgment of divorce. Our Supreme Court's order stated that Justice Zahra "would decline to issue the stay." Id. at 913. Justice Viviano wrote a statement dissenting from the grant of a stay. Id. at 913-915 (VIVIANO, J., dissenting in part). This Court has ordered on its own motion that this case be expedited.
Mikhaylov v. Steele, unpublished order of the Court of Appeals, entered August 24, 2023 (Docket No. 367325).
Mikhaylov v. Steele, unpublished order of the Court of Appeals, entered December 5, 2023 (Docket No. 367325).
II. STANDARD OF REVIEW
This Court applies three standards of review in custody cases. Stoudemire v. Thomas, 344 Mich.App. 34, 42;___ N.W.2d___ (2022). The trial court's factual findings, including whether a party has shown proper cause or a change of circumstances, are reviewed under the great-weight-of-the-evidence standard. Id.; see also Berger v. Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336 (2008). "A finding of fact is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction." Id. (quotation marks and citation omitted). "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." Id. (quotation marks and citation omitted). A trial court's discretionary rulings concerning custody are reviewed for an abuse of discretion. Id. "In child custody cases, an abuse of discretion exists when the trial court's decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Id. at 43 (quotation marks, brackets, and citation omitted).
We review de novo the interpretation of statutory and contract language, as well as the application of legal and equitable doctrines such as estoppel. See Sylvan Twp v. City of Chelsea, 313 Mich.App. 305, 315-316; 882 N.W.2d 545 (2015).
A trial court's decision whether to award attorney fees is reviewed for an abuse of discretion. Reed v. Reed, 265 Mich.App. 131, 164; 693 N.W.2d 825 (2005). A trial court's ruling on a request for sanctions is likewise reviewed for an abuse of discretion. Sprenger v. Bickle, 307 Mich.App. 411, 422-423; 861 N.W.2d 52 (2014). "An abuse of discretion occurs when the result falls outside the range of principled outcomes." Richards v. Richards, 310 Mich.App. 683, 699; 874 N.W.2d 704 (2015).
III. REVIEW OF CUSTODY &PARENTING TIME ORDER
Plaintiff argues that the trial court erred, for several reasons, in reviewing the current custody and parenting time order (the consent judgment of divorce) in response to defendant's motion. Specifically, plaintiff argues that defendant did not demonstrate proper cause or a change of circumstances to warrant reviewing the custody order. Plaintiff also argues that several equitable doctrines, as well as the language of the consent judgment of divorce, should have barred the trial court's review. We disagree.
A. PROPER CAUSE AND CHANGE OF CIRCUMSTANCES
Plaintiff argues that the trial court erred by finding that defendant had demonstrated proper cause or a change of circumstances sufficient to warrant review of the previous custody order. We disagree.
"The Child Custody Act provides a comprehensive scheme for resolving child-custody disputes ...." Kuebler v. Kuebler,___ Mich. App___,___;___ N.W.2d___ (2023) (Docket No. 362488); slip op at 15, lv pending. "To protect children's stability, MCL 722.27 imposes a gatekeeping function on the trial court and provides standards that a moving parent must satisfy to change custody or parenting time." Id. at 16. "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." Id. (quotation marks and citation omitted). The standard for making this threshold showing with respect to a request to change custody was set forth in Vodvarka v. Grasmeyer, 259 Mich.App. 499, 509-514; 675 N.W.2d 847 (2003). Kuebler,___ Mich.App. at___; slip op at 16. The Vodvarka standard has been summarized as follows:
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. The evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. To 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. As is the case with a change of circumstances, the appropriate ground(s) should be relevant to at least one of the twelve statutory best interest
factors, and must be of such magnitude to have a significant effect on the child's well-being. [Id. (quotation marks, brackets, and citation omitted).]
But when the moving party requests only a modification of parenting time, as opposed to custody, a more expansive standard applies and normal life changes may suffice to establish proper cause or a change of circumstances. Kaeb v. Kaeb, 309 Mich.App. 556, 568-569; 873 N.W.2d 319 (2015).
We will assume for the purpose of this analysis that the Vodvarka standard for requests to change custody applies. Plaintiff has failed to establish any error in the trial court's determination that defendant has established proper cause or a change of circumstances.
The trial court cited Vodvarka in its opinion regarding proper cause or change of circumstances. An argument could be made that the more relaxed standard for changes of parenting time applies because the trial court found that an established custodial environment exists with both parties and the requested change would allow the joint established custodial environment to continue. See Kaeb, 309 Mich.App. at 568-569. On the other hand, defendant's motion requested a modification of custody and parenting time, and the effect of the trial court's ruling was that the children would continue to live mostly with defendant in Michigan rather than move to Texas to live primarily with plaintiff as contemplated by the consent judgment of divorce. The circumstances of this case are unusual. In these circumstances, we deem it appropriate to analyze the issue on the assumption that the Vodvarka standard applies.
When the parties reached a custody and parenting-time settlement in August 2021, it was understood that, although plaintiff had already purchased a home in Texas, she would also obtain a residence in Michigan and exercise essentially equal parenting time with defendant while the children continued to live and attend school in Bloomfield Hills before moving to Texas at the beginning of the 2023-2024 school year. In fact, plaintiff never obtained such a residence, instead exercising parenting time at short-term rental property and later in her mother's one-bedroom apartment, and ultimately did not exercise parenting time to the extent anticipated. As a result, defendant became the primary caregiver for the children while they continued to live and attend school in Bloomfield Hills. It was also anticipated that defendant would move to Texas to exercise equal parenting time when the children moved there in August 2023, but defendant testified that he had been unable to find employment in the Austin area in his field of neurosurgery. Further, two of the children, NS and ES, had initially struggled in several areas of life and had only recently begun making significant improvements, particularly from January 2023 forward. NS in particular had struggled academically, emotionally, and socially. However, thanks in a large part to the efforts of a school counselor at NS's school along with NS's participation in religious and sports activities, NS had begun to make strides in connecting with his peers. ES had also made improvements regarding his anger issues. Defendant had engaged NS and ES in therapy beginning in January 2023, which also contributed to improvements for those two children. The therapist had recommended autism-spectrum testing for NS, which defendant planned to pursue. Defendant also testified that JS, who had begun elementary school in 2021, was performing well academically and participated in piano lessons and soccer.
Plaintiff testified that no personal property could be stored at the rental property while she was not renting it, because it was rented out to others during the times when plaintiff had not reserved it. In other words, the property was more like a vacation or hotel room rental than a rented primary residence.
The trial court noted that plaintiff had not taken substantial steps to prepare the children for the transition to Texas, such as by arranging definite plans for a therapist, religious activities, or sports programs, and that plaintiff had not shared any significant information with defendant about the children's schools in Texas. Defendant's inability to find work in Texas further complicated the ability to effectuate a smooth transition to a life in Texas in which the children would have the benefit of both parents involved in their daily lives in person.
Considering all of these facts, we conclude that the evidence as a whole preponderates in support of a conclusion that there had been material changes in conditions that could have a significant effect on the children's wellbeing. Stoudemire, 344 Mich.App. at 42. The evidence showed that the children had begun to develop a strong support system in Michigan that could not easily be replicated immediately for them in Texas, particularly given the particular difficulties faced by the two oldest children and the inability of defendant, their primary caregiver for the previous two years, to move there. The evidence therefore supports a determination that both proper cause and a change of circumstances existed. Kuebler, Mich.App. at; slip op at 16.
It is true that ¶ 10 of the consent judgment of divorce contains a provision stating that if defendant "should petition this Court for the children to remain in Michigan following the 20222023 school year on the basis that they are adjusted and/or are doing well academically and/or emotionally, this shall not be considered a change in circumstance or proper cause." However, as Justice Viviano noted in his statement dissenting from our Supreme Court's grant of a stay, the validity of this provision of the consent judgment of divorce is questionable. See Mikhaylov, 512 Mich. at 914 (VIVIANO, J., dissenting in part) ("[I]t is not apparent to me that the parties can, by agreement, limit the scope of statutory terms.") Justice Viviano's point is well taken. Courts should not be bound by the parties' stipulation limiting the meaning of statutory terms. See generally, Kimmelman v. Heather Downs Mgt Ltd, 278 Mich.App. 569, 576; 753 N.W.2d 265 (2008) (this Court is not bound by "the parties' stipulations on a point of law"); see also Napora v. Napora, 159 Mich.App. 241, 246; 406 N.W.2d 197 (1986) ("Although stipulations are favored by the judicial system and are generally upheld, a parent may not bargain away a child's right by agreement with a former spouse.") (citation omitted).
In any event, regardless of the validity of ¶ 10, the facts establishing proper cause or a change of circumstances were not limited to the children's academic or emotional success, but included a far broader range of events, including defendant's inability to find work in Texas, defendant's primary role in raising the children following plaintiff's move to Texas, plaintiff's failure to obtain a Michigan residence and to use all of her authorized parenting time, and plaintiff's failure to engage in adequate planning for the transition from Michigan to Texas that would allow the children to continue the progress that they had recently begun to demonstrate in Michigan. Therefore, ¶ 10 of the consent judgment of divorce does not preclude our determination that defendant established proper cause or a change of circumstances.
Moreover, the trial court correctly noted that defendant was challenging not only the children's move to Texas but also their enrollment in the Driftwood school district. The parties' disagreement as joint legal custodians regarding which schools the children would attend required an evidentiary hearing irrespective of any showing of proper cause or a change of circumstances. Marik v. Marik, 325 Mich.App. 353, 363-364; 925 N.W.2d 885 (2018); see also Pierron v. Pierron, 486 Mich. 81, 85; 782 N.W.2d 480 (2010) ("[W]hen the parents cannot agree on an important decision, such as a change of the child's school, the court is responsible for resolving the issue in the best interests of the child.").
B. EQUITABLE DOCTRINES
Plaintiff also cursorily argues that the doctrine of judicial estoppel precluded defendant from seeking a change in custody and parenting time. Plaintiff asserts that defendant played "fast and loose" with the judicial system by "successfully urging one judge (Cunningham) to do one thing, then arguing to another judge (Kinsella) that the same thing was improper." We disagree.
"Judicial estoppel is an equitable doctrine, which generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Spohn v. Van Dyke Pub Sch, 296 Mich.App. 470, 479; 822 N.W.2d 239 (2012) (quotation marks and citations omitted). "This doctrine is utilized in order to preserve the integrity of the courts by preventing a party from abusing the judicial process through cynical gamesmanship." Id. at 479-480 (quotation marks and citation omitted).
Under the prior success model of judicial estoppel, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding. In accordance with this model of judicial estoppel, the mere assertion of inconsistent positions is not sufficient to invoke estoppel; rather, there must be some indication that the court in the earlier proceeding accepted that party's position as true. Further, in order for the doctrine of judicial estoppel to apply, the claims must be wholly inconsistent. [Id. at 480 (quotation marks and citations omitted).]"Of utmost importance in determining whether to apply the doctrine of judicial estoppel is whether the party seeking to assert an inconsistent position would derive an unfair advantage if not estopped." Dep't of Transp v. Riverview-Trenton R Co, 332 Mich.App. 574, 594; 958 N.W.2d 246 (2020) (quotation marks and citation omitted). Judicial estoppel "must be applied carefully as, ultimately, use of the doctrine precludes a contradictory position without examining the truth of either statement." Id. at 595 (quotation marks and citation omitted).
Plaintiff's assertion of judicial estoppel could be deemed abandoned because her claim is cursorily presented in a footnote of her appellate brief. "A party may not simply announce a position and leave it to this Court to make the party's arguments and search for authority to support the party's position. Failure to adequately brief an issue constitutes abandonment." Seifeddine v. Jaber, 327 Mich.App. 514, 519-520; 934 N.W.2d 64 (2019) (citation omitted). Although plaintiff cites one case concerning judicial estoppel, her argument is inadequately developed. In any event, judicial estoppel is inapplicable. It is true that defendant stipulated to the entry of the consent judgment of divorce, which contained a provision purporting to exclude academic and emotional success from consideration when determining whether proper cause or a change of circumstances exists. As noted, that provision is of questionable validity. More importantly, defendant did not later assert a wholly inconsistent position. He did not rely solely on the children's academic and emotional success when seeking to modify custody and parenting time. He did not abuse the judicial system through cynical gamesmanship or derive an unfair advantage.
In the same footnote of her appellate brief, plaintiff asserts that the "invited-error doctrine" bars defendant from arguing that Judge Cunningham erred by approving the consent judgment of divorce. Again, plaintiff's argument could be deemed abandoned because it is cursorily presented. Id. In any event, plaintiff's reliance on the invited-error doctrine is misplaced." 'Invited error' is typically said to occur when a party's own affirmative conduct directly causes the error." People v. Jones, 468 Mich. 345, 352 n 6; 662 N.W.2d 376 (2003). "Appellate review is precluded because when a party invites the error, he waives his right to seek appellate review, and any error is extinguished." Id. In this case, defendant is not an appellant, and is not seeking appellate review. Also, contrary to plaintiff's characterization, defendant did not argue that Judge Cunningham erred by approving the consent judgment of divorce; rather, defendant sought a modification of custody and parenting time, as specifically permitted by the Child Custody Act. The invited-error doctrine is inapplicable to this case.
Next, plaintiff argues that Judge Kinsella lacked authority to set aside or vacate the consent judgment of divorce entered by Judge Cunningham and that defendant engaged in "judgeshopping" by waiting to file his motion to modify custody and parenting time until after the case was reassigned to Judge Kinsella. Plaintiff's argument concerning Judge Kinsella's authority is incorrect. Further, to the extent that plaintiff's argument asserts the equitable defense of "unclean hands," that argument is devoid of merit. See Varela v. Spanski,329 Mich.App. 58, 83; 941 N.W.2d 60 (2019) ("The unclean-hands doctrine is a self-imposed ordinance that closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief[.]") (quotation marks and citation omitted).
Plaintiff relies on MCR 2.613(B), which provides:
A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.
Plaintiff argues that, as Judge Cunningham's successor, Judge Kinsella lacked authority to set aside or vacate the consent judgment of divorce entered by Judge Cunningham. Plaintiff reasons that Judge Cunningham was not absent or unable to act because he had merely been reassigned to another division of the Oakland Circuit Court and that any evidentiary hearing should have been held before Judge Cunningham rather than Judge Kinsella. Plaintiff's argument fails for multiple reasons. Upon his reassignment to another division of the Oakland Circuit Court in May 2022, Judge Cunningham agreed to keep the present case on his docket until the consent judgment of divorce was entered. After the entry of the consent judgment of divorce in July 2022, an order was signed by the chief judge of the Oakland Circuit Court, as well as by Judge Cunningham and Judge Kinsella, reassigning the case to Judge Kinsella.
As Judge Cunningham's successor, Judge Kinsella had authority to vacate or set aside her predecessor's orders in appropriate circumstances. See Dutton Partners, LLC v. CMS Energy Corp, 290 Mich.App. 635, 641 n 2; 802 N.W.2d 717 (2010) ("We note that a successor judge has the authority to enter whatever orders his or her predecessor could have entered. MCR 2.613(B)."). Moreover, as will be discussed more fully in the next section, Judge Kinsella did not set aside or vacate the consent judgment of divorce, but instead granted modification of custody and parenting time. MCR 2.613(B), which applies when a judgment or order is set aside or vacated, is therefore inapplicable.
Regarding plaintiff's claim that defendant engaged in "judge-shopping," the record shows that defendant did not file a motion to modify custody and parenting time until eleven months after the case was transferred, and that the motion was based largely on events that occurred after the entry of the consent judgment of divorce. Plaintiff's contention that defendant engaged in judgeshopping is wholly unsupported.
C. CONSENT JUDGMENT OF DIVORCE AS A CONTRACT
Plaintiff argues that, because the consent judgment of divorce is contractual, Judge Kinsella erroneously rewrote the parties' agreement and unconstitutionally impaired contractual obligations. We disagree.
The parties reached a settlement agreement regarding custody and parenting time and, after other issues in the divorce were settled, the trial court entered a consent judgment of divorce. Consent judgments of divorce are generally treated as contracts. Andrusz v. Andrusz, 320 Mich.App. 445, 452; 904 N.W.2d 636 (2017). When "the parties have agreed to a custody arrangement," the trial court is not required "to conduct a hearing or otherwise engage in intensive fact-finding." Harvey v. Harvey, 470 Mich. 186, 192; 680 N.W.2d 835 (2004). However, the trial court is still required to "satisfy itself concerning the best interests of the children. When the court signs the order, it indicates that it has done so." Id. at 192-193.
The entry of a consent judgment of divorce, or its contractual nature, does not alter the fact that the Child Custody Act governs issues concerning child custody. See id. at 189 (noting "that the Child Custody Act governs all child custody disputes and gives the circuit court continuing jurisdiction over custody proceedings"), citing MCL 722.26. "The Child Custody Act provides a comprehensive scheme for resolving child-custody disputes ...." Kuebler, Mich.App. at; slip op at 15. In this case, defendant sought to modify custody and parenting time on the basis of a change of circumstances and proper cause. The trial court held an evidentiary hearing and ultimately granted defendant's requested relief. Contrary to plaintiff's characterization, the trial court did not improperly rewrite the parties' agreement or impair any contractual obligations. Rather, the proceedings below were conducted in accordance with the Child Custody Act, which continued to govern child-custody disputes.
Plaintiff was certainly aware that either party could seek modification of the custody and parenting time provisions of the consent judgment of divorce, should events in the future warrant such a modification. When the parties reached their settlement agreement on custody and parenting time, plaintiff's counsel stated at the hearing that the parties had been informed that the trial court would retain jurisdiction over issues concerning the children. Plaintiff's counsel continued:
Issues involving your children can be modified with a showing of change in circumstances or proper cause. There are different burdens of proof that must be met depending on if you're modifying parenting time or custody. But it's important for you both to understand that modification is possible as the Court retains jurisdiction.
Upon questioning by the trial court, the parties agreed that they understood that the trial court "would have continuing jurisdiction even after the kids go to Texas."
The record shows that plaintiff and her counsel correctly understood at the time of the settlement that the trial court would retain jurisdiction and could modify custody and parenting time upon a showing of proper cause or a change of circumstances. Plaintiff's contention that Judge Kinsella erroneously rewrote the parties' agreement or impaired contractual obligations is devoid of merit.
Relatedly, plaintiff also argues that the doctrine of election precluded Judge Kinsella from reopening the consent judgment of divorce and altering its terms. Plaintiff reasons that she was deprived of the benefit of her bargain because defendant did not tender back all consideration he had received from plaintiff, including money she paid him as part of the property settlement and the benefit of having the children attend school in Michigan for two years. We disagree.
"The doctrine of election (also termed estoppel by acceptance) is an extension of the law of equitable estoppel." In re Beglinger Trust, 221 Mich.App. 273, 276; 561 N.W.2d 130 (1997). "Under the doctrine of election, a person cannot accept and reject the instrument, or, having availed himself of it as to part, defeat its provisions in any other part." Id. (quotation marks and citation omitted).
Plaintiff cites Stefanac v. Cranbrook Ed Community, 435 Mich. 155, 163; 458 N.W.2d 56 (1990), for the proposition that "tender of consideration received is a condition precedent to the right to repudiate a contract of settlement." Plaintiff asserts that, before seeking to modify custody or parenting time, defendant was required to tender back all consideration he had received under the consent judgment of divorce. However, Stefanac did not concern modification of child custody or parenting time, which, again, is governed by the Child Custody Act. Plaintiff cites no authority establishing that defendant was required to tender back all consideration received under the consent judgment of divorce before seeking to modify custody or parenting time on the basis of proper cause or a change of circumstances, or any other authority indicating that the doctrine of election applies in this situation. Further, the record does not support plaintiff's contention that the money she paid as part of the property settlement constituted consideration for any part of the custody settlement. The custody settlement occurred in 2021, and the property settlement occurred in 2022. This chronology undercuts plaintiff's contention that the property settlement constituted consideration for the custody settlement. Plaintiff's own testimony at the evidentiary hearing likewise indicated that the property settlement was unrelated to the custody arrangement.
Plaintiff further argues that judicial estoppel applies in light of defendant's failure to tender back consideration, but plaintiff cites no caselaw concerning judicial estoppel in this portion of her brief and does not explain how the requirements for applying judicial estoppel would be satisfied. Plaintiff "cannot leave it to this Court to make [her] arguments for [her]. [Her] failure to adequately brief the issue constitutes abandonment." Seifeddine, 327 Mich.App. at 521 (citation omitted).
Plaintiff also argues, in a separate portion of her brief, that the provisions of the consent judgment of divorce concerning custody, parenting time, and domicile were valid and enforceable, and argues that Judge Kinsella erroneously rewrote those provisions. Plaintiff's arguments on these points are repetitive of arguments that have previously been addressed. Judge Kinsella did not rewrite provisions of the consent judgment of divorce but revisited custody and parenting-time issues in accordance with the Child Custody Act.
Plaintiff also argues that there is no merit to defendant's claim that ¶ 9 of the consent judgment of divorce, which provided for the children's move to Driftwood in August 2023, violates public policy. But the trial court did not determine that ¶ 9 violates public policy. Plaintiff is not entitled to appellate relief on the basis of an argument that fails to address a basis of the trial court's decision. See Seifeddine, 327 Mich.App. at 522 ("When an appellant fails to address the basis of a trial court's decision, this Court need not even consider granting relief.").
IV. GRANT OF DEFENDANT'S MOTION
Plaintiff also argues that the trial court erred in several respects when making findings on the best-interest, parenting-time, and change-of-domicile factors, and therefore erroneously granted defendant's motion to modify custody and parenting time. We disagree.
A. BEST-INTEREST FACTORS
Plaintiff argues that the trial court erred in its findings under several of the best-interest factors of MCL 722.23. We disagree. In reviewing a trial court's findings regarding best-interest and similar factors, we "will defer to the trial court's credibility determinations, and the trial court has discretion to accord differing weight to the best-interest factors." Berger, 277 Mich.App. at 705.
Plaintiff first disputes the trial court's finding that defendant was favored on factor (b), which is "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any." MCL 722.23(b). The trial court noted defendant's active role in the children's education for the preceding two years, including defendant's communications with NS's teachers and school counselor. The trial court also noted plaintiff's apparent lack of substantial knowledge regarding the Texas schools the children were to attend, other than information that could be obtained from a school website. The trial court viewed defendant as having shown a greater ability to provide guidance in regard to academics. The trial court also noted defendant's active role in promoting the children's Jewish religious faith, in contrast to plaintiff, who did not support organized religion and appeared to have done little to promote the children's faith.
Plaintiff suggests that the trial court relied too heavily on the school counselor's testimony. However, this Court defers to the trial court's credibility determinations. Berger, 277 Mich.App. at 705. Although plaintiff argues that the counselor lacked the expertise to opine on NS's social and emotional needs, the counselor was not offered as an expert witness. Rather, he testified primarily about facts surrounding NS's experiences at school, including NS's difficulty interacting with his peers as well as the counselor's efforts to assist NS in forming appropriate connections with his peers. To the extent any of the counselor's testimony could arguably be viewed as expressing an opinion, the testimony was properly based on his rational perceptions as NS's school counselor. See MRE 701 (a lay witness may testify in the form of an opinion that is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue).
Plaintiff further argues that the trial court shifted the burden of proof under this factor by improperly faulting her for lacking adequate knowledge about the Texas schools and for failing to articulate actions she had taken to prepare for the transition to the Texas schools. We disagree with that characterization of the record. The trial court merely considered the evidence concerning the parties' respective capacities and dispositions pertinent to factor (b). There was extensive testimony indicating that the children were benefiting from a supportive community in Michigan, in contrast to the lack of evidence of such support in Texas. The trial court noted the apparently limited nature of plaintiff's knowledge of the Texas schools and her lack of significant preparation for the anticipated transition of the children from Michigan to Texas.
Plaintiff also challenges the trial court's finding on religion, questioning the sincerity of defendant's support of the children's religious practices. She says that defendant "deploys religion as a bludgeon to portray himself favorably respecting factor (b) ...." Plaintiff asserts that, "likely with counsel's advice, [defendant] was positioning himself to claim superiority on this 'best interest' factor." But this Court defers to the trial court's credibility determinations. Berger, 277 Mich.App. at 705. It is not for this Court to reassess whether defendant is sincere in regard to his support of the children's religious faith. Further, plaintiff's undeveloped claim that the trial court violated her First Amendment rights is supported neither legally nor factually. There is no evidence on the record that the trial court abandoned its "constitutionally mandated neutrality with respect to the merits of the religious beliefs of the parties." Fisher v. Fisher, 118 Mich.App. 227, 234; 324 N.W.2d 582 (1982).
Plaintiff also challenges the trial court's analysis of factor (c), which is "[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs." MCL 722.23(3)(c). The trial court noted that both parties were "employed and able to provide for the children financially." In the preceding two years, defendant had assumed a primary role in taking the children to doctor appointments, dentist appointments, orthodontist appointments, and therapy appointments. Plaintiff had attended some appointments but was often unable to do so given her residency in Texas, and there was no testimony that she had attended any appointments virtually. Plaintiff was slow to agree to vaccines for the children and autism-spectrum testing for NS. Plaintiff had not set up any specific medical or therapy providers for the children in Texas. Although she had a list of possible providers, she had not shared the information with defendant, scheduled any appointments for the children, or presented any evidence demonstrating the research she had performed to ensure continuity of care for the children in Texas. The trial court therefore concluded that factor (c) slightly favored defendant.
Plaintiff again argues that, by noting plaintiff's failure to present evidence showing her research regarding medical providers in Texas, the trial court improperly shifted the burden of proof. But the trial court was only weighing the parties' respective capacities and dispositions to provide medical care. The extent to which plaintiff had pursued efforts to ensure continuity of care for the children in Texas was pertinent to the inquiry under factor (c). The trial court did not shift the burden of proof.
Plaintiff also challenges the trial court's findings on factor (d), which is "[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity." MCL 722.23(d). The trial court noted that the children had been living primarily with defendant for the preceding two years. During her parenting time in Michigan, plaintiff rented a short-term rental for herself and the children but later, due to alleged financial constraints, stayed with her children in the maternal grandmother's one-bedroom apartment in Michigan. Although plaintiff claimed that the children would have a strong community in Austin, she did not provide details regarding such a community. Relying on NS's counselor's testimony, defendant argued before the trial court that keeping the children in the Bloomfield Hills schools would maintain stability. The trial court found "that the children changing schools within the same district, where there is some continuity with school administrators, IEP [individual education plan] services, and classmates, is not the same as changing schools in a completely different state across the country." Therefore, although "both parties live in a stable and satisfactory environment, with regards to the desirability of maintaining continuity and stability for the children this factor favors [defendant's] request that the children remain in Michigan and enrolled in their current school district in Bloomfield Hills, Michigan."
The trial court properly concluded that both parties live in a stable and satisfactory environment but that, with respect to the desirability of maintaining continuity, the factor favored defendant's position. Plaintiff disputes the interest of continuity in the children's school system in Bloomfield Hills, noting difficulties that the children, especially NS, have experienced in the Bloomfield Hills schools in the past. But plaintiff's argument overlooks the significant recent positive developments that the children experienced in large part due to efforts of a school counselor and a therapist. The evidence does not clearly preponderate against the trial court's conclusion that this factor favors defendant. Berger, 277 Mich.App. at 705.
Plaintiff also challenges the trial court's findings on factor (e), which is "[t]he permanence, as a family unit, of the existing or proposed custodial home or homes." MCL 722.23(e). With respect to this factor, the trial court noted that plaintiff owns her home in Texas, the maternal grandmother was planning to move into plaintiff's home, and plaintiff has a cousin in Texas. Defendant rents his home in Michigan and has a dog to which the children are bonded. Defendant planned to purchase a home in Bloomfield Hills if the children are permitted to stay in Michigan. The trial court found "that no evidence was presented to suggest the instability or lack of permanence in either parties' [sic] family unit. Therefore, this factor is neutral to both parties."
Plaintiff argues that she should be favored on this factor. She notes that defendant rents his home, which has four bedrooms and two bathrooms, whereas plaintiff owns her home, which has five bedrooms and four bathrooms. Plaintiff also argues that defendant will have to replace the current au pair he has hired to assist him with the children. Plaintiff's argument on this factor is cursory and unconvincing. This factor does not automatically require the preferencing of home ownership over renting, and plaintiff does not explain how the number of bedrooms and bathrooms affects the permanence, as a family unit, of the existing or proposed custodial homes. Defendant expressed his intent to purchase a home in Bloomfield Hills if the children are allowed to remain in Michigan. It is also unclear why plaintiff thinks that defendant having to replace the au pair is pertinent to this factor. The evidence did not clearly preponderate against the trial court's finding that this factor was neutral. Berger, 277 Mich.App. at 705.
Plaintiff also argues that the trial court erred in its findings under factor (h), which is "[t]he home, school, and community record of the child." MCL 722.23(h). In analyzing this factor, the trial court extensively summarized the testimony regarding the children's experiences and challenges as well as defendant's efforts to provide academic and social support for the children. The trial court discussed the school counselor's efforts to help NS connect with his peers. The court found the counselor's testimony compelling and expressed confidence that the counselor understood NS's needs within the school environment. Although NS and ES would be attending school in a different building in the 2023-2024 school year if they remained in the Bloomfield Hills school system, the trial court noted the counselor's "testimony that changing the children's school within the same district is not the same as changing schools in a different district."
The trial court noted that plaintiff claimed that students in Bloomfield Hills are "mean," but her belief about this came only from what the children had told her. Further, although plaintiff claimed that similar academic services, extracurricular activities, and religious programs were available in Texas, she offered no specific evidence on these points other than testifying that she had looked into soccer programs for JS. The trial court noted defendant's position that it was in the children's best interests to have consistency and stability by remaining in their current school district in Bloomfield Hills rather than uprooting them from their established lives in Michigan, particularly given the gains made in the preceding six months. Therefore, the trial court found that this factor favored defendant's position.
Plaintiff argues that it is "meaningless" that the children would have some difficulty adjusting to a move to Texas, because the parties already knew this when the custody settlement was reached. But there was extensive testimony indicating that the children, especially NS, currently needed consistency and stability. The children had recently begun to develop strong support systems in their schools and community that would be disrupted if they moved to Texas. Plaintiff suggests that the school counselor lacked the expertise needed to opine whether changing school buildings within the same school district is different from going to another school district in another state. Plaintiff offers no basis to conclude that any particular expertise is needed to conclude that attending school at another building in the same school district with many of the same students differs from moving hundreds of miles away. Further, plaintiff again asserts that the trial court shifted the burden of proof by referring to plaintiff's failure to present certain evidence. But the trial court merely properly considered the evidence concerning the children's school and community records in Bloomfield Hills, the lack of specific evidence regarding the services or programs available in Texas, and the lack of a basis to uproot the children from their current environment. Plaintiff also accuses the trial court of denigrating her claim that students in Bloomfield Hills schools are "mean," but the trial court merely noted the lack of a substantial basis for the assertion and her lack of direct knowledge. The evidence did not clearly preponderate against the finding that this factor favored defendant's position. Berger, 277 Mich.App. at 705.
Plaintiff also argues that the trial court erred in its findings on factor (j), which is "[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents." MCL 722.23(j). Regarding this factor, the trial court noted the testimony of a coparenting therapist that the parties struggled with communication with each other. The trial court noted multiple examples of defendant reaching out to plaintiff on issues regarding a child and trying to include her in the children's daily lives. The trial court noted that defendant had said no one could replace plaintiff, and defendant encouraged NS to call plaintiff after NS expressed an intent to harm himself. Also, defendant had facilitated additional parenting time for plaintiff when she asked for it. The trial court cited examples of plaintiff failing to inform defendant about her plans for the children in Texas, including regarding schools and healthcare providers. The trial court found that this factor slightly favored defendant.
There was ample evidence of defendant including plaintiff in the children's lives and affording her additional parenting time, as well as evidence that plaintiff failed to keep defendant informed of her plans for the children in Texas. The evidence did not clearly preponderate in the opposite direction of the trial court's finding that this factor slightly favored defendant. Berger, 277 Mich.App. at 705.
Plaintiff also argues that the trial court erred by finding that factor (k), which is "[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child," MCL 722.23(k), was neutral. The trial court found that there were no allegations of domestic violence. Although there was testimony about defendant poking a fork at a child for putting his elbows on the table as well as testimony about plaintiff throwing items, the court did "not find either of these allegations to rise to the level of domestic violence." Hence, the court found that this factor was neutral.
Plaintiff argues that the trial court "pooh-poohs" defendant's admission that he disciplined a child by poking him with a fork. Plaintiff further accuses the trial court of disregarding evidence that NS twice threatened suicide on defendant's "watch" and that defendant used "abusive language" by telling NS that he was autistic and that he would be a janitor if he did not get good grades. The trial court did not err by concluding that the allegation of defendant poking a child with a fork at the table, as an isolated incident, failed to rise to the level of domestic violence. Further, there is no indication that NS's expressions of an intent to harm himself were related to any domestic violence on the part of defendant. Nor does plaintiff offer any reason to conclude that the alleged verbal statements by defendant constituted evidence of domestic violence or abuse.
Plaintiff notes that the trial court failed to mention NS's alleged suicide threats and defendant's alleged verbal statements to NS. "However, a trial court need not consider every piece of evidence entered and argument raised by the parties when it states its factual findings and conclusions on each of the best interest factors." Kessler v. Kessler, 295 Mich.App. 54, 65; 811 N.W.2d 39 (2011) (quotation marks and citation omitted). "A trial court's failure to discuss every fact in evidence that pertains to a factor does not suggest that the relevant among them were overlooked." Id. (quotation marks and citation omitted). Overall, we conclude that the trial court did not err in finding that this factor was neutral.
In sum, the trial court's factual findings concerning the best-interest factors were not against the great weight of the evidence. Berger, 277 Mich.App. at 705.
B. PARENTING-TIME FACTORS
Plaintiff argues that the trial court erred in its findings on two of the parenting-time factors of MCL 722.27a(7). We disagree.
Factor (a) is "[t]he existence of any special circumstances or needs of the child." MCL 722.27a(7)(a). The trial court discussed the special circumstances or needs of NS and ES, including the fact that they were in therapy. The court acknowledged the children's therapist's testimony that NS and ES could become acquainted with a new therapist in Texas. However, the court was "concerned because no evidence was presented to demonstrate that a new therapist has been selected in Texas to help the children timely transition if they were permitted to move to Texas." The court discussed the strides that NS had recently made in forming peer relationships, which the court noted was due largely to the school counselor's efforts at school and defendant's engagement of NS in sports and religious activities. By contrast, NS did not have friends in Texas. The court found that this factor favored defendant's "request that the children remain in Michigan and enrolled in their current school district in Bloomfield Hills, Michigan."
Plaintiff again accuses the trial court of shifting the burden of proof and of "studiously ignor[ing]" the therapist's testimony indicating that a new therapist could be obtained in Texas. But the trial court explicitly acknowledged that testimony, and did not shift the burden of proof; rather, it merely noted the lack of any indication that a new therapist had been selected in Texas, which the court understandably found concerning given the need for an appropriate transition if the children were permitted to move there. The trial court's findings were properly focused on special circumstances or needs of the children. The evidence did not clearly preponderate in the opposite direction of the finding that this factor favored defendant's position. Stoudemire, 344 Mich.App. at 42.
Factor (f) is "[w]hether a parent can reasonably be expected to exercise parenting time in accordance with the court order." MCL 722.27a(7)(f). The trial court noted that, if the children are permitted to move to Texas, this would likely affect defendant's ability to exercise equal parenting time because he had been unable to secure employment in Texas and his employment in Michigan required him to perform surgery at hospitals in Michigan. Plaintiff had been traveling back and forth between Texas and Michigan for the preceding two years. The trial court found that plaintiff's employment was remote and that she had the ability to travel and work anywhere. The trial court found that this factor was neutral.
Plaintiff argues that the trial court failed to consider the expense and exhaustion associated with traveling from Texas to Michigan in order to exercise parenting time, or to appropriately weight the fact that plaintiff had made that trip for two years and had expected the arrangement to end in summer 2023. But the focus of this factor is not the parties' earlier agreement but "[w]hether a parent can reasonably be expected to exercise parenting time in accordance with the court order." MCL 722.27a(7)(f). The evidence supported the trial court's findings regarding this factor. The trial court did not err by finding that this factor was neutral. Berger, 277 Mich.App. at 705.
In sum, the trial court's factual findings concerning the parenting-time factors were not against the great weight of the evidence. Id.
C. CHANGE-OF-DOMICILE FACTORS
Plaintiff also argues that the trial court erred in its findings on four of the change-of-domicile factors of MCL 722.31(4). We disagree.
Factor (a) is "[w]hether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent." MCL 722.31(4)(a). The trial court noted that plaintiff had provided little to no evidence of the potential benefits to the children of moving to Texas and attending school there aside from vague allusions to such matters as outdoor activities and a warmer climate. The trial court stated that moving to Texas may improve the quality of life for plaintiff, but the court did not believe there was evidence of the same potential benefit for the children. The trial court also found that although defendant had earlier been amenable to moving to Texas, he had come to realize "that the children are stable, progressing well in Michigan where they have a community of friends, activities, and resources," and that "it is in their best interest to remain in Michigan." The trial court therefore found that this factor favored defendant's request that the children remain in Michigan and enrolled in the Bloomfield Hills schools.
Plaintiff once again accuses the trial court of shifting the burden of proof by referring to plaintiff's failure to present evidence of how the move to Texas will improve the children's lives. We will not belabor this point further. The trial court correctly considered the recent progress of the children in Michigan and their community of friends, activities, and resources in Michigan, while noting the lack of specificity of plaintiff's claims of purported benefits from the move to Texas. Plaintiff's reliance on the parties' earlier agreement to the relocation was misplaced given the changed circumstances and the focus on the needs of the children. The evidence did not clearly preponderate against the court's finding on this factor. Berger, 277 Mich.App. at 705.
The next change-of-domicile factor addressed by plaintiff is factor (c), which is:
The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification. [MCL 722.31(4)(c).]
The trial court found that, if the children were to stay in Michigan rather than move to Texas, it would be possible to have a parenting-time schedule that "preserve[s] and foster[s] the parental relationship because the present schedule that the parties have used the last two years has done just that." The court found "that this factor favors [defendant's] request that the children remain in Michigan and enrolled in their current school district in Bloomfield Hills, Michigan."
Plaintiff again notes the parties' earlier agreement to the move to Texas and Judge Cunningham's approval of that agreement. Once again, the parties' earlier agreement is not dispositive of the proper analysis of this factor. Plaintiff's argument fails to account for evidence that defendant was unable to find employment in Texas, that his current employment requires him to be physically in Michigan to perform surgery at Michigan hospitals, and that plaintiff can perform her telemedicine work anywhere. The evidence did not clearly preponderate against the court's finding on this factor. Berger, 277 Mich.App. at 705.
Factor (d) is "[t]he extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation." MCL 722.31(4)(d). The trial court noted that neither party was presently paying child support to the other party because the parties had "agreed to deviate from the Michigan Child Support Formula." The trial court found no evidence that defendant's motion, or plaintiff's opposition, was motivated by a desire to secure child support from the other parent. The court therefore found that this factor was neutral.
Plaintiff argues that this factor should favor her because defendant was seeking to compel plaintiff to bear the expense and burden of biweekly travel to Michigan from Texas. Plaintiff asserts that, under the consent judgment of divorce, it is now defendant's "turn" and that he is "welcome to move to Texas and enjoy his equal parenting time, or to live elsewhere and exercise as much parenting time, up to 50%, as he desires by traveling to Texas." But the focus of this factor is not on whose "turn" it is to travel. Plaintiff identifies no evidentiary basis to conclude that defendant was motivated by a desire to secure a financial advantage with respect to a support obligation. Plaintiff has established no error in the finding that this factor was neutral. Berger, 277 Mich.App. at 705.
Factor (e) is "[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child." MCL 722.31(4)(e). Plaintiff makes similar arguments under this factor as she did under best-interest factor (k), and we reject them for the same reason. The trial court did not err by finding that there was no evidence of domestic violence and that this factor was neutral. Berger, 277 Mich.App. at 705.
In sum, the trial court's factual findings concerning the change-of-domicile factors were not against the great weight of the evidence. Berger, 277 Mich.App. at 705.
D. CONCLUSION
Plaintiff has failed to establish that any of the trial court's findings on the best-interest, parenting-time, and change-of-domicile factors were against the great weight of the evidence. The trial court's findings support the determination that it was in the children's best interests to continue residing in Michigan and attending school in Bloomfield Hills. Id.
Plaintiff also argues that, if this Court affirms the trial court's order or remands for further proceedings, this Court should direct the trial court on remand to reevaluate the children's established custodial environments on the basis of updated information and the fact that the children have been living with plaintiff during this appeal as a result of the stay granted by our Supreme Court. As stated, we find no error requiring remand. Further, we see no reason to direct the trial court to reevaluate the children's established custodial environments in the course of affirming its order. See Fletcher v. Fletcher, 447 Mich. 871, 889; 526 N.W.2d 889 (1994) (holding that a trial court should consider up-to-date information when an appellate court finds nonharmless error requiring remand to the trial court).
V. ATTORNEY FEES
Plaintiff argues that the trial court abused its discretion by denying her request for attorney fees. We disagree.
Plaintiff argues that she was entitled to attorney fees under ¶ 33 of the consent judgment of divorce, which states:
33. Retention of Jurisdiction: The court retains jurisdiction over this action for the purpose of enforcing all the terms and conditions of this property settlement agreement. The court reserves the right to enter additional orders which it deems necessary to implement this agreement which are not inconsistent with the terms of this agreement, including, but not limited to, enforcement of payment of litigation costs, attorney fees, and mediator/arbitrator fees.
Plaintiff offers little explanation of why she believes she is entitled to attorney fees under this provision. She asserts that the provision authorizes attorney fees incurred in implementing the parties' agreement. She further claims that defendant's "effort to prevent implementation, although initially successful, came a cropper when the Supreme Court granted a stay, which result should stand when this Court rules on the merits of this appeal." Plaintiff's argument thus seems to hinge on the success of her appeal of the trial court's order. As stated, we conclude that plaintiff has failed to establish any error on the part of the trial court. Moreover, it is unclear that this provision of the consent judgment of divorce applies. The first sentence refers to the parties' property settlement agreement, not their custody and parenting-time agreement. And the second sentence merely says that the trial court reserves the right to enter orders deemed necessary to implement the agreement, including enforcement of payment of attorney fees. Plaintiff provides no explanation for how an award of attorney fees to her is necessary to implement the parties' agreement. Therefore, although the trial court did not provide reasoning for its denial of plaintiff's request for attorney fees, plaintiff has failed to establish that it abused its discretion by declining to award her attorney fees based on the consent judgment of divorce. Reed, 265 Mich.App. at 164.
Plaintiff further argues that defendant made false allegations in ¶ 4 and ¶ 9 of his motion to modify custody, and that defendant and his counsel should be held liable for costs and attorney fees as a sanction under MCR 1.109(E)(5) and (6). We disagree.
Paragraph 4 of defendant's motion to modify custody and parenting time provides:
4. At the time the Judgment was entered, the minor children resided with the Defendant Father, who lives in Bloomfield Hills, Michigan, while the Plaintiff Mother had resided in Driftwood, Texas, a suburb of Austin, since August 2021.
Paragraph 9 of defendant's motion to modify custody and parenting time provides:
9. There is no dispute that the established custodial environment is with the Defendant Father in Michigan, as the children have resided in Bloomfield Hills for six years, have resided predominantly with the Defendant Father for nearly two years, and where the minor children have looked to the Defendant Father for
guidance, discipline, the necessities of life, and parental comfort, since the Plaintiff Mother moved to Texas in August 2021.
Plaintiff asserts that ¶ 4 and ¶ 9 are false, but she provides no argument to support this assertion. She does not even quote or summarize ¶ 4 and ¶ 9 in the argument section for this issue in her brief, let alone offer any explanation of why she believes the contents of the paragraphs are false. "A party may not simply announce a position and leave it to this Court to make the party's arguments and search for authority to support the party's position. Failure to adequately brief an issue constitutes abandonment." Seifeddine, 327 Mich.App. at 519-520 (citation omitted). We discern no reason to conclude that the paragraphs lacked a factual basis or that sanctions were required. Although defendant argued in ¶ 9 that the children's established custodial environment was with him, and the trial court ultimately determined that there was a joint established custodial environment with both parties, defendant was permitted to make a good-faith argument in support of his position. And any minor inconsistencies in defendant's extensive testimony at the evidentiary hearing did not rise to the level of sanctionable conduct. In any event, sanctions for that conduct would not be made under MCR 1.109(E)(5) and (6), which pertain to sanctions related to a signature on a document. Plaintiff "cannot leave it to this Court to make [her] arguments for [her]. [Her] failure to adequately brief the issue constitutes abandonment." Seifeddine, 327 Mich.App. at 521 (citation omitted).
VI. STAY
As stated, our Supreme Court reversed this Court's denial of plaintiff's motion for a stay pending appeal. Mikhalov, 512 Mich. at 912. Our Supreme Court's order stated that the trial court's order modifying custody "is stayed pending the completion of this appeal," but added that "[on] motion of a party or on its own motion, the Court of Appeals may modify, set aside, or place conditions on the stay if it appears that the appeal is not being vigorously prosecuted or other appropriate grounds appear." Id. Because we conclude that plaintiff has not established that the trial court erred by issuing its order modifying custody, we also conclude that "other appropriate grounds" exist to set aside the stay. Id., see also Nken v. Holder, 556 U.S. 418, 434; 129 S.Ct. 1749; 173 L.Ed.2d 550 (2009) (articulating a four-part test for stays pending appeal). Accordingly, we set aside the stay of enforcement of the trial court's order modifying custody.
Affirmed.