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Second Appeal: Mom Properly Awarded Sole Physical Custody Of Children

Posted on Wednesday, October 6, 2021

The trial court properly modified the original custody order in this case to award the plaintiff-mother sole physical custody of the parties’ minor children, the Michigan Court of Appeals has ruled.

This was the second appeal in Shipley v. Shipley (Docket No. 355726). The defendant-father,

Jonathan Shipley, presented several arguments in this second appeal, including:

1) the trial court misapplied the law-of-the-case doctrine.

2) the trial court improperly modified the parties’ custody order.

3) the trial court wrongly ruled that the children’s established custodial environment was solely with Tiffany Shipley, the plaintiff-mother.

The Court of Appeals rejected all the arguments presented, affirming the trial court’s decision.

“The great weight of the evidence in this case establishes that the majority of the best-interest factors [in MCL 722.23] favored Tiffany,” the Court of Appeals held. “Tiffany met her burden of establishing that modification of the custody order served each of the children’s best interests. The evidence established that the children have permanence and stability in Michigan with a loving family that provides for them. The children are also able to maintain their relationship with Jonathan through parenting time. The trial court’s custody order maintains the way in which the children have been living since 2017, and ensures that their lives are not disrupted.”

Judges Mark J. Cavanagh, Christopher M. Murray and James Robert Redford were on the panel that issued the unpublished opinion. 

Background

The parties divorced in 2017. The divorce judgment provided the parties would share joint legal and joint physical custody of their children and the children would primarily reside with Jonathan, who was living in Missouri at the time.

The original custody schedule provided that Jonathan would have the kids during the school year and Tiffany would have them during the summer. The parties later agreed to “flip” this arrangement. When Jonathan tried to change the schedule back, alleging it was temporary, Tiffany refused and filed a motion in Wayne County Circuit Court to modify the custody order. Meanwhile, Jonathan took the kids out of school, flew to his home in California and enrolled them in school there.

The trial court subsequently held that a change in circumstances justified a review of the original custody order. The trial court ultimately ruled that an established custodial environment existed solely with Tiffany and that modifying the custody order was in the children’s best interests. Accordingly, the trial court awarded Tiffany sole physical custody.

Jonathan appealed the trial court’s decision. In that first appeal (Docket No. 349502), the Court of Appeals held the trial court erred in finding proper cause or a change in circumstances to revisit the initial custody order. The case was remanded with specific orders. On remand, the trial court again ruled for Tiffany, granting her sole physical custody of the children.

Jonathan then filed this second appeal.

Appellate Arguments

On appeal, Jonathan first asserted that, under the law-of-the-case doctrine, the trial court misinterpreted the 2020 remand order and should not have re-evaluated the custody issues. According to Jonathan, the trial court should have simply denied Tiffany’s motion to modify custody or required her to file a new motion to modify custody.

“We disagree,” the Court of Appeals said. “Jonathan contends that, because this Court concluded that the trial court erred in finding that Tiffany met the proper cause or a change of circumstances threshold to warrant revisiting the custody order, the law-of-the-case doctrine required the trial court to deny Tiffany’s motion and hold no further proceedings. Jonathan’s argument lacks merit because this Court’s opinion plainly directed the trial court to take specific further action. … We conclude that the trial court correctly interpreted this Court’s remand order and properly held further proceedings by considering updated information as directed by this Court.”

Next, Jonathan claimed the trial court wrongly held that Tiffany met her burden of establishing proper cause or a change of circumstance. “We disagree,” the Court of Appeals wrote. “The trial court did not err in concluding that, since the entry of the [original] custody order, Tiffany had established a change of circumstances, i.e., the conditions surrounding custody of the children, which have or could have a significant effect on the children’s well-being, had materially changed. In [the first appeal in] Shipley, this Court concluded that the trial court erred in finding proper cause or a change of circumstances because the trial court failed to address ‘all’ of the changes since the last custody order. This Court concluded that the trial court placed too much emphasis on the children traveling between states because the initial custody order contemplated such travel. The record reflects that, on remand, the trial court thoroughly compared the conditions in place at the time of entry of the initial custody order with the changes that occurred since that time and articulated on the record the proper cause and change of circumstances that warranted revisiting the order.”

The Court of Appeals also rejected Jonathan’s argument that the trial court erred in finding the children’s established custodial environment was solely with Tiffany. “In this case, the record reflects that the children had an established custodial environment only with Tiffany,” the Court of Appeals explained. “Although this Court previously concluded in Shipley that the trial court erred by finding that only Tiffany had the established custodial environment as of March 2019, nearly a year and a half had transpired by the time the trial court revisited the issue on remand and heard additional testimony regarding the established custodial environment in September 2020. Although Jonathan contended that the trial court could only find that both Jonathan and Tiffany had an established custodial environment because nothing had changed since March 2019, the trial court properly considered updated information, as directed by this Court, before making its custody determination. The trial court properly considered whether, from March 2019 to September 2020, the children continued to have an established custodial environment with both parents or had an established custodial environment with only one of them. … The great weight of the evidence supports the trial court’s conclusion that the children did not have an established custodial environment with Jonathan but had an established custodial environment with Tiffany.”

Jonathan further argued the trial court improperly weighed several of the best-interest factors in MCL 722.23, resulting in the improper modification of custody. “We disagree,” the Court of Appeals said, noting the trial court found that best-interest factors (a), (b), (c), (d), (h), (j), (k) and (l) favored Tiffany, factors (e), (f), (g) were neutral and did not weigh in favor of either party, and also considered factor (i), the preference of the children.

“On appeal, Jonathan asserts that, following the proceedings after remand, the trial court incorrectly found that (a), (b), (c), (d), (h), (j), (k) and (l) favored Tiffany,” the Court of Appeals wrote. “On appeal, Jonathan provides substantive analysis for factor (j). Jonathan asserts that the trial court could not have possibly ‘flipped’ its conclusions and found that factors (a), (b), (c), (d), (h), (k), and (l) favored Tiffany. Examination of the record, however, establishes that Jonathan’s contention lacks merit. The trial court articulated its reasoning and based its decision on evidence in the record, and the great weight of the evidence supported its determinations of each of the best-interest factors.”

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