The Michigan Court of Appeals has vacated an order denying a divorced father’s request to change the school his children attend, finding the trial court failed to 1) address the children’s established custodial environment, 2) describe the applicable burden of proof and 3) consider the Child Custody Act’s best-interest factors.
In Marik v Marik (Docket No. 333687), the Court of Appeals remanded the case in a published decision so the trial court could properly handle these issues.
“There was no evidence introduced, no witnesses called, no cross-examination by opposing counsel, and, as stated in more detail below, no express consideration of the best-interest factors contained in MCL 722.23,” the Court of Appeals wrote. “Therefore, we conclude that the trial court failed to conduct a full evidentiary hearing on the request to change the children’s school enrollment, and for that reason, remand is required.”
The Court of Appeals further held that remand was necessary to address the father’s request to modify parenting time. According to the Court, the trial court also failed to determine whether an established custodial environment existed on the parenting-time issue, let alone whether any modification would change it.
The father and mother in Marik were divorced. They had joint and legal physical custody of their children. The father filed a motion in the Macomb County Circuit Court, requesting the children be allowed to attend a different and “better” school system. He also filed a motion to modify parenting time. The trial court denied the father’s motions in June 2016.
The father appealed. The Court of Appeals, in a July 12, 2016 order, dismissed the appeal for lack of jurisdiction. “The postjudgment order denying defendant father’s request to change the children’s school enrollment cannot be considered an order affecting the custody of a minor under MCR 7.202(6)(a)(iii),” the Court said.
The father filed a motion for reconsideration, which the Court of Appeals rejected in an August 30, 2016 order. “An order denying a motion to change schools is not an order affecting the custody of a minor within the meaning of MCR 7.202(6)(a)(iii),” the Court reasoned, citing Ozimek v Rodgers, 317 Mich App 69 (2016).
The father then filed an application for leave to appeal with the Michigan Supreme Court. The Supreme Court held oral arguments on the application in October 2017. The justices issued their decision in a Nov. 16, 2017 order that said: “In lieu of granting leave to appeal, we VACATE the order of the Court of Appeals and REMAND this case to that court for reconsideration of the question whether the Macomb Circuit Court’s … order denying the defendant father’s request to change the children’s school enrollment and modifying parenting time was ‘a postjudgment order affecting the custody of a minor’ and therefore, a ‘final order’ under MCR 7.202(6)(a)(iii) and appealable by right under MCR 7.203(A)(1). In doing so, the court shall apply the standard applicable prior to Ozimek v Rodgers (On Remand), 317 Mich App 69 (2016), which we overrule. Ozimek erred in concluding that the term ‘custody’ in MCR 7.202(6)(a)(iii) does not comprise the concept of legal custody.”
Full Hearing Failure
On remand from the Michigan Supreme Court, the Court of Appeals ruled the trial court did not give the parties “an opportunity to fully present evidence on the issue of whether changing the children’s school was in their best interests.”
In an opinion written by Judge Thomas C. Cameron, joined by Judge Kathleen Jansen, the Court of Appeals noted that no evidence was introduced, no witnesses were called, there was no cross-examination and the statutory best-interest factors were not considered. This was improper and remand was required, the Court observed. A full evidentiary hearing should have been conducted, the Court said, especially given that the trial court had to determine the established custodial environment, whether the father’s request would alter it and whether the request was in the best interests of the children.
Even if a full evidentiary hearing had been conducted, the Court of Appeals pointed out the matter still had to be remanded because the trial court did not determine whether an established custodial environment existed and whether a change in school would alter it. Further, the trial court failed to address any of the MCL 722.23 best-interest factors, let alone indicate which ones applied – a mistake the Court deemed as “fatal.”
On remand, the trial court must first determine the established custodial environment issues “and then conduct a full analysis of the best-interest factors,” the Court of Appeals held.
Regarding the father’s motion to modify parenting time, the Court of Appeals employed a similar analysis. According to the Court, on remand the trial court must first determine the effect of a parenting-time modification on the established custodial environment in order to ascertain which best interests standard applies (Vodvarka or Shade). If on remand the trial court finds the Shade standard applies, “it need only make findings on the contested issues,” the Court said. “However, if it concludes that the stricter Vodvarka standard applies, then it must address all of the best-interest factors.”
Judge Peter D. O’Connell concurred and wrote separately to propose an “Inevitable Remand Rule” in these types of cases.
“When a trial court fails to articulate, with precision, which party has, or which parties share, the established custodial environment, and it cannot be discerned from the lower court record, the Court of Appeals should invoke the Inevitable Remand Rule with the help of a motion from one of the parties,” O’Connell said. “Simply put, on appeal, when the trial transcript is devoid of a trial court’s findings on which party has, or which parties share, the established custodial environment, a motion to remand should immediately be filed with the Court of Appeals.”
Court Rule Clarification Coming?
Since Marik-Ozimek-Madson was first decided in 2016, many Michigan family law and appellate practitioners have been calling for clarification of MCR 7.202(6)(a)(iii) and what constitutes a final postjudgment order.
In fact, Marik-Ozimek and Madson has prompted a proposed amendment of MCR 7.202. The proposal would help nail down what constitutes a final postjudgment order in a domestic relations case for purposes of appealing by right.
The written comment period on the proposed rule change expired August 1, 2018. All comments submitted to the Michigan Supreme Court can be found here. A public hearing has not yet been scheduled.
Stay tuned to the Speaker Law Blog for further developments on the proposed rule change.