COA Dismisses Father’s Contempt Appeal, Affirms Custody & Parenting-Time Orders

In this case involving custody, parenting time and civil contempt, the Michigan Court of Appeals ruled that it did not have jurisdiction over the father’s appeal from his civil contempt proceedings, and also held the trial court properly denied the father’s motion to reinstate joint legal custody and modify parenting time.

The case of Bauer v Waidelich (Docket Nos. 369519, 370605, 373564 and 374353) has a “lengthy history.” The plaintiff-mother and the defendant-father initially shared joint legal and physical custody of their two children, HW and AW. But the mother obtained sole legal custody after disputes arose regarding the father’s “aggressive approach to the children’s medical treatment.” After the mother filed a show-cause motion in the St. Clair County Circuit Court regarding HW’s numerous school absences during the father’s parenting time, as well as medical issues, the father sought joint legal custody and modification of parenting time. The mother alleged the father’s custody motion was in retaliation for her show-cause motion.

The trial court held that the father did not show proper cause or a change in circumstances warranting a change in legal custody or a modification of the parenting-time schedule. The trial court subsequently denied the father’s motion for reconsideration of the changes to the parenting time, explaining the father would have to use his “best judgment to make good faith efforts to comply with the [c]ourt’s orders.”

“In Docket No. 373564, father appeals as of right from the trial court’s order denying his motion to change legal custody. … In Docket No. 374353, he appeals from that same order by leave granted, raising issues that are outside the scope of his appeal of right … – specifically, challenging the requirements imposed on him by the trial court when he exercises parenting time.”

The trial court further said the issues of HW’s school absences did not constitute contempt of court because the mother ultimately acquiesced by failing to intervene earlier with HW’s frequent absences and by agreeing to modify HW’s school schedule. However, the trial court also held the father “committed … criminal contempt of court for administering … at-home blood test[s]” to HW. The trial court said the father’s intention was to determine whether there was “something medically wrong with HW” and he was “deliberately trying to conceal these things because of the history of what’s happening.” As a sanction, the trial court ordered the father to pay the mother’s attorney fees associated with the contempt proceedings. “In Docket No. 369519, father claims an appeal from the court’s order holding him in contempt.”

In Docket Nos. 369519 and 370605, “we dismiss the appeals for lack of jurisdiction over the civil contempt sanction,” the Court of Appeals held. “In Docket Nos. 373564 and 374353, we affirm.”

Judge Matthew S. Ackerman, Judge Stephen L. Borrello and Judge Anica Letica were on the panel that issued the unpublished opinion.

Contempt Appeal

Regarding the contempt issue, the father challenged the trial court’s decisions to 1) hold him in contempt and 2) award mother $8,500 in attorney fees as a sanction.

“We conclude that we lack jurisdiction to review either issue,” the Court of Appeals said.

While the trial court characterized its decision as criminal contempt, “our de novo review shows that it was compensatory civil contempt,” the Court of Appeals said. “The sanction imposed on father was not a criminal penalty authorized under MCL 600.1715. Instead, it was an indemnification award under MCL 600.1721, which ‘codifies the compensatory sanction’ for compensatory civil contempt. … As a result, we lack jurisdiction over this appeal of right.”

In making this decision, “we note that the trial court was imposing general contempt sanctions, not attorney fees under MCR 3.206(D),” the Court of Appeals explained. “Mother did not invoke MCR 3.206(D), and the trial court made no finding that mother was unable to pay, as that rule requires. … Here, the sanction was an award of damages ‘measured in part by plaintiff’s attorney fees’ but ‘not an award of attorney fees as such’ and therefore not a ‘final judgment’ as that term is defined for civil cases in MCR 7.202(6)(a)(iv).”

Custody Decision

As to custody, the father argued the trial court abused its discretion and violated MCR 3.210(C)(8) by denying his motion to reinstate joint legal custody without an evidentiary hearing. He claimed that he established proper cause and changed circumstances by a preponderance of the evidence.

“We disagree,” the Court of Appeals said, noting the focus of the father’s argument was “whether the trial court abused its discretion by failing to recognize proper cause or a change in circumstances warranting a return to joint legal custody.” The father “emphasize[d] our holding in Dailey v Kloenhamer, 291 Mich App 660 (2011),] that issues relating to medical care can support a finding that proper cause or a change of circumstances exists to justify revisiting custody.”

In denying the father’s custody motion, “the trial court explained there was no evidence mother ignored the children’s medical conditions,” the Court of Appeals observed. “The court noted that although HW had significant absences from school during father’s parenting time, HW was continuing his extracurricular activities. The court suggested that either father had poor dietary options at his home, or that HW might have been manipulating the situation to avoid attending school. The court was also concerned about father projecting his own health issues onto HW. We agree that father failed to show by a preponderance of the evidence that the conditions surrounding custody of the children that have, or could have, a significant effect on the children’s well-being had materially changed since the entry of the last custody order. Nor has father established by a preponderance of the evidence that an appropriate legal ground existed for the court to act on the basis of best interest factors (c), (d), (e), or (i). If anything, the facts continued to demonstrate a pattern by father of aggressively pursuing medical treatment for the children and imposing his medical beliefs on HW.”

The father “also faults mother for not informing him of prior attendance letters, yet he fails to explain why mother was obligated to do so or how that would have affected HW’s attendance, given father’s position that HW was genuinely ill during the days he was kept home or picked up from school,” the Court of Appeals pointed out. “There is no indication that mother was ignoring a serious medical condition on the part of HW. Accordingly, there was no proper cause or change in circumstances as it related to mother’s sole legal custody.”

Moreover, the father “was not entitled to an evidentiary hearing on the issue,” the Court of Appeals said. “For the reasons discussed, there was no factual dispute that HW missed a significant number of school days under father’s care yet attended extracurricular events. There was no dispute that father did not inform mother about most of the absences. Again, there was no evidence mother was ignoring a serious medical condition. And there is no dispute that mother scheduled a gastroenterologist appointment for HW, which the court ordered must occur. Thus, the facts as asserted by father were not legally sufficient to demonstrate proper cause or change of circumstances. The trial court did not err or violate MCR 3.210(C)(8) by declining to conduct an evidentiary hearing.”

Parenting Time

Regarding parenting time, the father argued the trial court abused its discretion and committed clear legal error “by preventing him from making what he characterizes as routine decisions during parenting time.” In addition, he claimed the trial court did not apply the correct framework for modifying parenting time.

“We disagree with both arguments,” the Court of Appeals said.

“Contrary to father’s argument on appeal, the order does not prohibit him ‘from administering any forms of medication,’” the Court of Appeals wrote. “Instead, it requires that any medication be consistent with the pediatrician’s recommendations or with a list provided by mother. Outside these parameters, the parties retain flexibility to decide how to arrange for medication distribution during father’s parenting time. The order only requires that mother provide a list ‘as necessary,’ contemplating that the list may not always be required. The order was designed to give father clarity about what medications he may distribute to the children. The order does not prevent him from obtaining mother’s permission when in doubt.”

In addition, having the mother “make the final call on whether the children stayed home from school addressed the concern that HW was feigning illness while in father’s care,” the Court of Appeals said. “Under these circumstances, the provisions of the court’s order did not affect father’s authority over routine matters under MCL 722.26a(4) or MCL 722.27a(11).”

Regarding parenting-time changes, “[t]he minor adjustments to parenting time did not amount to a change in the established custodial environment that would require a finding of proper cause or change in circumstances under the Vodvarka v Grasmeyer, 259 Mich App 499 (2003),] framework or an express finding on each statutory best-interest factor,” the Court of Appeals said. “Moreover, proper cause and a change in circumstances existed under the more expansive framework that allows the trial court to make slight modifications to the parenting-time arrangements.

As a result, the Court of Appeals dismissed the contempt appeal, and affirmed the trial court’s custody and parenting-time orders.