Dailey v. Kloenhamer

• Decision Date: 08 March 2011
• Docket Number: Docket No. 300698.
• Citation: 811 N.W.2d 501,291 Mich.App. 660
• Parties: DAILEY v. KLOENHAMER.
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 660

811 N.W.2d 501

DAILEY

v.KLOENHAMER.

Docket No. 300698.

Court of Appeals of Michigan.

Submitted March 2, 2011, at Lansing.Decided March 8, 2011, at 9:00 a.m.

Scott Bassett for Jill S. Dailey.

Amy H. Bailey and Erica G. Terranova for Barry N. Kloenhamer.

Before: FITZGERALD, P.J., and O'CONNELL and METER, JJ.

O'CONNELL, J.

Plaintiff appeals as of right the circuit court's judgment granting sole legal custody of the parties' minor child to defendant. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant divorced in 2003. The parties have one minor child, who was born March 26, 1998. During the divorce proceedings, the parties stipulated that they would share legal custody and that the child would reside with defendant. The parties also agreed to a parenting-time schedule in which the child would split time between the parents. The circuit court incorporated the agreed-on schedule into the divorce judgment.

For the first few years after the divorce, most of the parties' disputes revolved around parenting time. However, in recent years, the disputes have grown to include larger and more significant issues. There have been some disputes over education and religion, and considerable disputes over the proper medical diagnosis and treatment for the child's chronic cough. In particular, the parties disputed whether the child should be treated for asthma. While this dispute concerning medical treatment was ongoing, plaintiff filed a motion for primary physical custody of the child. The parties reached an agreement on that motion in 2009; the agreement resulted in an order modifying the parties' parenting time. The order also required plaintiff to schedule an appointment with an allergist to obtain a second opinion on the child's respiratory condition.

The disputes between the parties continued. Eventually, a physician at C.S. Mott Children's Hospital tested the child and determined that the child did not have asthma. The parties then disagreed about the proper health-care provider to oversee the child's medications, including the cessation of asthma medications. This disagreement culminated in December 2009, when plaintiff filed a motion to have a Mott physician supervise the child's respiratory condition. Defendant opposed the motion and asked the circuit court to allow the allergist to determine the course of treatment for the child.

In March 2010, the parties reached an agreement on the motion. The agreement provided that neither party could seek respiratory treatment or testing for the child without the express written agreement of the other party. Additionally, in the event that the child redeveloped a serious chronic cough, the parties were required to consult with each other and agree on an appropriate course of treatment.

Two weeks later, defendant filed a motion regarding the child's medical care because the parties could not agree whether the child should undergo an allergy skin test. Defendant also filed a motion for sole legal custody. Defendant alleged that there had been a change in circumstances since the last custody order, as evidenced by the numerous motions filed by the parties regarding medical care. Additionally, defendant asserted that the parties were unable to agree on the child's education, including which school he should attend and which electives he should be taking.

In response, plaintiff indicated that defendant had failed to engage in good-faith discussions concerning medical care. Plaintiff denied that the parties were unable to agree on education, but did indicate that she was planning to file a motion for a change in parenting time so the child could attend a private school in the Detroit area where plaintiff now lived. Plaintiff subsequently filed a motion for a change in parenting time and a change in the child's school because she alleged that the child was not being adequately challenged in his current school in DeWitt. According to plaintiff, the school offered no advanced or gifted programs for the child, and the child was becoming bored with school. Defendant opposed the school change.

In August 2010, the circuit court held a hearing on the parties' motions. After two days of testimony, the circuit court issued a ruling from the bench. The court first found that there was proper cause or a change in circumstances to review the custody order. The court then found that the child had an established custodial environment in both parties' homes. After reviewing the statutory best-interest factors of MCL 722.23, the court granted defendant's motion for sole legal custody. The court denied plaintiff's motions.

Plaintiff now appeals the grant of legal custody to defendant. Plaintiff alleges that the circuit court erred when it determined that proper cause or a change in circumstances existed for the court to review the custody order. Additionally, plaintiff argues that defendant failed to present clear and convincing evidence that a change in custody was in the child's best interests. Also, plaintiff argues that the Child Custody Act, MCL 722.21 et seq. , requires that a parent who is granted physical custody must also be granted legal custody. Finally, plaintiff argues that the circuit court should have implemented a less drastic remedy by apportioning the important decision-making authority between the parties.

II. STANDARD OF REVIEW

MCL 722.28 provides that in child-custody disputes, “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.” Our Supreme Court has explained that MCL 722.28 “distinguishes among three types of findings and assigns standards of review to each.” Fletcher v. Fletcher, 447 Mich. 871, 877, 526 N.W.2d 889 (1994). Findings of fact, such as the trial court's findings on the statutory best-interest factors, are reviewed under the “great weight of the evidence” standard. Id. at 878–879, 526 N.W.2d 889. Discretionary rulings, such as to whom custody is awarded, are reviewed for an abuse of discretion. Id. at 879, 526 N.W.2d 889. An abuse of discretion exists when the trial court's decision is “palpably and grossly violative of fact and logic....” Id. (citation and quotation marks omitted); see also Shulick v. Richards, 273 Mich.App. 320, 325, 729 N.W.2d 533 (2006). Finally, “clear legal error” occurs when a court incorrectly chooses, interprets, or applies the law. Fletcher, 447 Mich. at 881, 526 N.W.2d 889.

III. DISCUSSION

Before modifying or amending a custody order, the circuit court must determine whether the moving party has demonstrated either proper cause or a change of circumstances to warrant reconsideration of the custody decision. MCL 722.27(1)(c); Vodvarka v. Grasmeyer, 259 Mich.App. 499, 508–509, 675 N.W.2d 847 (2003). The movant has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists. Vodvarka, 259 Mich.App. at 509, 675 N.W.2d 847. To establish proper cause, the movant must prove “the existence of an appropriate ground for legal action to be taken by the trial court.” Id. at 512, 675 N.W.2d 847. Further, “[t]he appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude [as] to have a significant effect on the child's well-being.” Id. Similarly, to establish a change of circumstances, the movant must prove 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.” Id. at 513, 675 N.W.2d 847.¹

Plaintiff argues that the circuit court erred when it determined that a change in circumstances or a proper cause existed to review the custody order. We disagree. The record demonstrates that the parties' disagreements have escalated and expanded to topics that could have a significant effect on the child's well-being. The parties disagree over the proper educational course for the child. More significantly, since the date of the last custody order, the parties have continued to disagree about the child's medical treatment. Plaintiff scheduled an appointment at Mott for a pulmonary function test without defendant's knowledge, but defendant opposed the child's going to Mott and filed a motion to prevent the test. Later, the parties were unable to agree on when and how to wean the child from his asthma medications. Additionally, defendant wished to proceed with the allergist's recommendation of a skin test for the child, but plaintiff opposed the test absent express instructions from the Mott physician. The parties' recurrent disagreements delayed the child's medical treatment; further delay could have a detrimental effect on the child's well-being. These medical delays are directly relevant to the best-interest factor set forth in MCL 722.23(c) (capacity and disposition to provide the child with medical care). Given these facts, it was not against the great weight of the evidence for the circuit court to have determined that either proper cause or a change of circumstances existed to revisit the custody decision.

Next, plaintiff argues that even if proper cause or a change in circumstances did exist, the circuit court erred when it determined that granting defendant sole legal custody was in the child's best interests. Again, we disagree. Once a party has met the initial burden of showing a change in circumstances or proper cause to revisit the custody order, the next step is for the circuit court to determine the applicable burden of proof for the custody hearing. See MCL 722.27(1)(c). In this case, because an established custodial environment existed with both parents, the circuit court correctly determined that it could not modify custody unless it...