Opinion
SC: 164458-9 COA: 357521, 357528
10-24-2022
Stephen G. TELEHOWSKI, Plaintiff-Appellee, v. Claudia G. TELEHOWSKI, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the April 21, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Welch, J. (dissenting).
I dissent from the Court's decision to deny leave to appeal. I would have instead ordered additional briefing and scheduled oral argument to address whether, before deciding a motion to change custody, a trial court's failure to make threshold "proper cause shown" or "change of circumstances" findings under MCL 722.27(1)(c) is subject to harmless error review or some other standard of review.
The plaintiff-father, an American citizen, and defendant-mother, a Mexican citizen, are the parents of a minor child who was born in the United States and holds dual citizenship. The parties married in Mexico, but in 2018, while living in Michigan, they divorced. A consent judgment of divorce was entered in Michigan. The parties shared joint legal custody of the child. Defendant had sole physical custody, and plaintiff was entitled to parenting time. Under the consent judgment, plaintiff agreed to permit defendant to leave Michigan with their child if she desired. The parties also agreed in the consent judgment that the usual 100-mile rule governing parental moves would not apply and that if defendant relocated, plaintiff would be entitled to five weeks of parenting time per year.
In 2019, defendant relocated to Mexico with the child, and she subsequently obtained a restraining order from a Mexican court, which had the legal effect of preventing plaintiff from exercising parenting time with the child. The parties dispute the factual basis for the restraining order and the nature of their interactions and efforts to resolve parenting time disputes after the restraining order was obtained. In March 2020, plaintiff filed a motion to change custody, and defendant opposed the motion on several grounds, including jurisdiction. Following complaints from plaintiff, the Friend of the Court moved to require defendant to show cause why she should not be held in contempt of court for failing to abide by the parenting time agreement.
After multiple hearings, the trial court set forth its findings on the record and concluded that defendant denied plaintiff parenting time in bad faith, held her in contempt of the court's parenting time orders, and opined that Michigan has exclusive, continuing jurisdiction over the custody determination. The trial court then set the change of custody matter for an evidentiary hearing. Defendant's counsel appeared and participated in the hearing on the motion to change custody and argued, among other things, that there had been no change in circumstances. The trial court subsequently granted plaintiff sole physical and sole legal custody of the child. Neither the trial court's verbal statements during the hearings nor its written order articulated the factual basis for "proper cause shown" or a "change of circumstances" that would authorize modification of the custody provisions in the consent judgment of divorce as required by MCL 722.27(1)(c).
Plaintiff applied for leave to appeal, which the Court of Appeals denied. This Court denied leave on June 1, 2021. Telehowski v Telehowski , 507 Mich. 956, 959 N.W.2d 508 (2021).
Defendant filed two separate appeals, and among other things, she challenged the trial court's decisions to review custody without first making findings with respect to proper cause or a change of circumstances (PCCOC). The Court of Appeals consolidated the appeals and affirmed. Relying on this Court's decision in Fletcher v Fletcher , 447 Mich. 871, 526 N.W.2d 889 (1994), and In re A.P. , 283 Mich App 574, 770 N.W.2d 403 (2009), the Court of Appeals determined that the PCCOC issue was subject to harmless error review. The panel also noted that the purpose of the PCCOC findings is to "limit unwarranted and disruptive changes to custody orders." Telehowski v Telehowski , unpublished per curiam opinion of the Court of Appeals, issued April 21, 2022 (Docket Nos. 357521 and 357528), p. 3, 2022 WL 1194626. The panel held that the trial court erred by not making PCCOC findings before scheduling an evidentiary hearing to determine the merits of plaintiff's request to change custody; however, the error was deemed harmless. The Court's entire analysis proceeded as follows:
One of the statutory best-interest factors is the "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). Plaintiff's motion clearly demonstrated defendant was unwilling to facilitate and encourage a relationship between SAT and plaintiff. For nearly a year at the time of the motion, and over two years at the time of the change of custody, defendant had completely refused to facilitate parenting time—or communication of any kind—with plaintiff. In addition, defendant sought and obtained a restraining order against plaintiff in a Mexican court, meaning any contact plaintiff had with SAT would have been a violation of Mexican law. These easily constituted appropriate grounds, premised on a statutory best-interest factor, and material
changes since the entry of the last custody order in the conditions surrounding SAT's custody that could have a significant effect on SAT's life. Vodvarka [ v Grasmeyer ], 259 Mich App [499,] 510-515, 675 N.W.2d 847 [(2003) ]. Accordingly, while the trial court erred by failing to make a finding regarding proper cause or change of circumstances, the error was harmless. [ Telehowski , unpub. op. at 3.]
Under a harmless error standard of review, I have little reason to dispute the Court of Appeals’ conclusion that the trial court's failure to make threshold PCCOC findings was harmless on the current record. But I question whether harmless error is the appropriate standard of review when a trial court fails to make PCCOC findings prior to changing custody. Had PCCOC findings been made by the trial court, those findings would have been reviewed under the "great weight of the evidence standard" pursuant to Corporan v Henton , 282 Mich App 599, 605, 766 N.W.2d 903 (2009). Thus, the end result seems to be that the Court of Appeals will defer to a trial court when it does its job as to PCCOC findings, and it will also defer to the trial court if it does not do its job so long as the appellate court can find factual support for PCCOC findings in the record. While this might be convenient for purposes of appellate review, it does not seem consistent with the notion that the threshold PCCOC requirement is intended to avoid unwarranted disruptions in a child's custodial environment. Regardless of the practicalities of the situation, it is not clear to me that this Court's decision in Fletcher requires harmless error review of the complete failure to make threshold PCCOC findings.
The Court of Appeals articulated what constitutes PCCOC for purposes of a request to change custody in Vodvarka , 259 Mich App at 509-514, 675 N.W.2d 847, and the record in this case does seem to satisfy that standard. It is notable, however, that while a request to change parenting time is subject to the same threshold PCCOC requirement under MCL 722.27(1)(c), the Court of Appeals has held that PCCOC has a different and less stringent meaning in the context of a request to change parenting time than the Vodvarka standard for requests to change custody. See Shade v Wright , 291 Mich App 17, 28-29, 805 N.W.2d 1 (2010).
Under the great weight of the evidence standard, this Court defers to the trial court's findings of fact unless the trial court's findings "clearly preponderate in the opposite direction." Fletcher , 447 Mich. at 878, 526 N.W.2d 889 (opinion by Brickley , J.) (quotation marks and citation omitted).
In Fletcher , 447 Mich. at 877, 526 N.W.2d 889 (opinion by BRICKLEY , J.), this Court pointed to MCL 722.28 and opined that "[b]y its terms, § 8 distinguishes among three types of findings and assigns standards of review to each. Findings of fact are to be reviewed under the ‘great weight’ standard, discretionary rulings are to be reviewed for ‘abuse of discretion,’ and questions of law for ‘clear legal error.’ " But then in addressing the "proper disposition of custody cases following appellate review," a majority opined that "[i]n accord with [ Dempsey v Dempsey , 409 Mich. 495, 296 N.W.2d 813 (1980) ], upon a finding of error an appellate court should remand the case for reevaluation, unless the error was harmless." Fletcher , 447 Mich. at 888-889, 526 N.W.2d 889 (opinion by BRICKLEY , J.) Notably, Justice MALLETT joined Justice BRICKLEY ’s opinion "except with respect to the standard of review." Id. at 890, 526 N.W.2d 889 (opinion by MALLETT , J.). And Justice LEVIN authored a separate opinion, which Justice MALLETT joined, in which he concluded, "I agree with the observations of the lead opinion in part III except that I would be inclined to allow the Court of Appeals considerable leeway in deciding whether to remand for more specific fact finding, and I would not suggest that remand for reevaluation of a custody award is necessarily the correct disposition unless the error perceived by the Court of Appeals is seen as harmless." Fletcher , 447 Mich. at 899-900, 526 N.W.2d 889 (opinion by LEVIN , J.).
"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCL 722.28.
Justice Griffin , joined by Justice Riley , concurred with the lead opinion except as to the conclusion that "extramarital conduct may not be probative of moral fitness under the Child Custody Act." Fletcher , 447 Mich. at 900, 526 N.W.2d 889 ( Griffin , J., concurring in part and dissenting in part).
Based on the fractured discourse in Fletcher and the analysis in In re A.P. , I can understand why the Court of Appeals concluded that a harmless error standard could be applied in this case. But Fletcher was not a case about the lack of threshold PCCOC findings. In fact, Fletcher was not even a case about altering prior custody or parenting time judgments or orders; it was a direct appeal from the original judgment of divorce. As such, MCL 722.27(1)(c) played no role in Fletcher .
Adding to this confusion are two orders that this Court has issued in recent years, which seem to suggest that strict compliance with the PCCOC requirement is necessary before a court should entertain a request to alter the custodial environment. See, e.g., Daly v Ward , 501 Mich. 897, 898, 901 N.W.2d 897 (2017) (denying leave to appeal but stating that the Court was taking the "opportunity to emphasize how critical it is that trial courts fully comply with MCL 722.27(1)(c) before entering an order that alters a child's established custodial environment"); O'Brien v D'Annunzio , 507 Mich. 976, 959 N.W.2d 713 (2021) (vacating the decisions of the lower courts and remanding for further proceedings because the trial court had not made PCCOC findings or conducted an evidentiary hearing before entering an order that effectively changed the custodial environment). In O'Brien , the Court referred to Daly and reiterated that compliance with MCL 722.27(1)(c) is especially important because it will often be " ‘difficult—if not altogether impossible—to effectively remedy’ " an error on appeal or to " ‘restore the status quo ante ’ " without harming the child. O'Brien , 507 Mich. at 977, 959 N.W.2d 713, quoting Daly , 501 Mich. at 898, 901 N.W.2d 897. Daly and O'Brien could be read as requiring something closer to strict compliance with the procedural and substantive requirements of MCL 722.27(1)(c). While the facts and procedural history of this case are different than in Daly and O'Brien , the same overarching concerns would seem to ring true in any situation where a child's custodial environment is subject to alteration.
The caselaw in Michigan is less than clear about the proper standard of review to be applied to a trial court's failure to make threshold PCCOC findings under MCL 722.27(1)(c) before moving on to the merits of a request to change custody. I believe the Court should have taken this case to resolve this ambiguity as to requests to change established custodial arrangements. As a result, I respectfully dissent.
McCormack, C.J., joins the statement of Welch, J.