Johnson v. Johnson
| Decision Date | 06 April 2023 |
| Docket Number | 361277 |
| Parties | PAMELA JOY LEE JOHNSON, Plaintiff-Appellant, v. EDGAR JOHNSON III, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Clinton Circuit Court LC No. 10-022282-DM
Before: GADOLA, P.J., and GARRETT and FEENEY, JJ.
This child-custody dispute returns to us for a third time. This appeal primarily involves the trial court's order granting sole physical and legal custody of the parties' minor children to defendant-father and suspending plaintiff-mother's parenting time following an evidentiary hearing. Plaintiff argues that that she did not receive proper notice of this hearing, that the trial court erred in several of its best-interest findings, and that the trial court erroneously suspended her parenting time. Despite plaintiff's egregious conduct throughout this case, the trial court committed clear legal error in its consideration of the children's reasonable preferences and made several best-interest findings against the great weight of the evidence. Therefore, we must vacate the trial court's ordering granting custody to defendant and remand for a new evidentiary hearing to consider the children's best interests.
To understand the issues before us on this appeal, we begin with the history of childcustody litigation between the parties.
The first appeal to this Court stemmed from plaintiff's challenge to the trial court's parenting time order, entered in conjunction with an order granting plaintiff's motion to change the children's domicile from Michigan to Virginia. Johnson v Johnson, unpublished per curiam opinion of the Court of Appeals, issued August 8, 2017 (Docket No. 336827), p 1. This Court summarized the case's background:
The parties were divorced in 2011 and have joint legal custody of their two children. Plaintiff has primary physical custody of the children, but defendant has traditionally had substantial parenting time. In 2016, plaintiff was called for active duty as a medical review officer in Maryland and Virginia. She filed a motion to change the children's domicile from Michigan to Virginia, and to modify the parties' parenting time schedule to one similar to what had been in place a few years earlier when plaintiff resided in the state of Washington. Following an evidentiary hearing before a referee, the trial court granted plaintiff's motion to change the children's domicile to Virginia and adopted the referee's recommended parenting time schedule. [Id.]
The trial court granted parenting time to defendant for the entirety of each Thanksgiving, Christmas, spring, and summer school break, and plaintiff was ordered to pay all transportation costs. Id. at 1-2. Plaintiff was also required to make the children available three days per week for video calls with defendant. Id. at 2. Plaintiff argued that this parenting time schedule was unfair and not in the children's best interests, but this Court determined that it was supported by the evidence; as such, this Court affirmed. Id. at 2-5.
A few years later, this dispute returned to this Court. Johnson v Johnson, 329 Mich.App. 110; 940 N.W.2d 807 (2019). In this second appeal, this Court summarized the pertinent facts as follows:
[D]efendant asserts that between January 11, 2017, and May 21, 2018, plaintiff failed to facilitate Skype parenting-time sessions between defendant and the children, to provide the minor children to him for Thanksgiving break, to provide the children to him for Christmas break, to provide the children for defendant 's summer parenting time, and to provide him with medical information regarding the children or information about their well-being. On multiple occasions, the Friend of the Court (FOC) petitioned the court to issue an order to show cause for why plaintiff should not be held in contempt for violating the parenting-time schedule. [Id. at 115.]
Plaintiff missed the first scheduled show cause hearing, and she submitted a letter before the second date requesting a stay of proceedings in accordance with the rights and protection offered to her under the Servicemembers Civil Relief Act (SCRA), 50 USC 3901 et seq. Id. at 115-116. The trial court ultimately denied plaintiff's stay request and held plaintiff in contempt for failing to appear at several hearings. Id. at 117. The trial court also ordered that plaintiff transfer the minor children to defendant and directed that defendant would have temporary physical custody of the children. Id. at 118. On appeal, this Court affirmed the trial court's denial of a stay under the SCRA. Id. at 125. But this Court also held that the trial court erred by modifying the custody order without first conducting an evidentiary hearing to consider the children's best interests. Id. at 131-132. Accordingly, this Court reversed the trial court's order awarding defendant temporary placement of the children. Id. at 132.
In July 2021, defendant filed a motion for change of custody, arguing that plaintiff had completely cut off contact between him and the children. Defendant requested that the trial court grant him full physical and legal custody of the children. The proof of mailing indicated that the motion, and an order scheduling a motion hearing, was sent to plaintiff at her last known address. At the motion hearing, plaintiff was not present, and the trial court indicated that plaintiff received proper notice. The trial court found that proper cause existed to reconsider the custody order and set the matter for an evidentiary hearing. Notice of the evidentiary hearing was served to plaintiff by mail at her last known address.
Plaintiff again failed to appear at the evidentiary hearing, and defendant's counsel stated that she had verified with the FOC that the address used to serve plaintiff with the notice of hearing was the last address that the FOC had on file. The trial court proceeded with the hearing, and the only evidence presented was defendant's testimony. Defendant testified that he had not physically seen the children since 2016 when they moved to Virginia, and he had not been able to speak with the children since November 2017 when plaintiff stopped appearing for defendant's Skype visits with the children. Defendant explained that he had filed several parenting time complaints and that plaintiff failed to appear at numerous show-cause hearings, leading to the issuance of bench warrants. In defendant's view, plaintiff "never fully committed to the joint legal custody agreement" and tried to "undermine" defendant as a father to the children. Considering plaintiff's obstructive tactics, defendant believed that receiving custody of the children was the only way he could have a relationship with them.
At the conclusion of the evidentiary hearing, the trial court found that it was in the best interests of the children for defendant to have sole legal and physical custody. Of the 12 bestinterest factors, the court found that nine factors favored defendant and that the remaining three factors were neutral. The primary focus of the trial court's analysis was plaintiff's chronic failure to comply with court orders or appear at any hearings. In addition, the trial court suspended plaintiff's parenting time until she appeared before the court and erased defendant's child support obligation. The trial court entered an order memorializing these decisions in November 2021.
In February 2022, plaintiff filed a motion for relief from judgment and a stay of proceedings. She alleged that she did not receive timely notice of the evidentiary hearing and did not know about the court's custody order until January 2022. After the trial court scheduled a hearing to consider the motion, plaintiff moved to appear via videoconferencing technology. Five days before the hearing, plaintiff's attorney filed a motion to withdraw, and the day before the hearing, the court denied plaintiff's motion to appear remotely. Plaintiff did not appear in-person at the hearing, despite her attorney requesting that she appear, and the court granted plaintiff's attorney's motion to withdraw. The court then denied plaintiff's motion for relief from judgment.
This appeal followed by delayed leave granted.[1]
Three distinct standards of review apply in child-custody disputes. "All custody orders must be affirmed on appeal unless the trial court committed a palpable abuse of discretion, made findings against the great weight of the evidence, or made a clear legal error." Mitchell v Mitchell, 296 Mich.App. 513, 517; 823 N.W.2d 153 (2012), citing MCL 722.28. Orders concerning parenting time are reviewed under these same standards of review. Luna v Regnier, 326 Mich.App. 173, 179; 930 N.W.2d 410 (2018). The palpable abuse of discretion standard, which applies to the trial court's ultimate decision on a custody award, is only met when the decision is "palpably and grossly violative of fact and logic." Dailey v Kloenhamer, 291 Mich.App. 660, 664-665; 811 N.W.2d 501 (2011) (quotation marks and citation omitted). Factual findings, including the trial court's findings on the statutory best-interest factors, are against the great weight of the evidence only when "the evidence clearly preponderates in the opposite direction." Bofysil v Bofysil, 332 Mich.App. 232, 242; 956 N.W.2d 544 (2020) (quotation marks and citation omitted). Finally, questions of law are reviewed for clear legal error, which exists when the trial court "incorrectly chooses, interprets, or applies the law." Id. (quotation marks and citation omitted).
Additionally we review a trial court's decision on a motion for relief from judgment for an abuse of discretion. Yee v Shiawassee Co Bd of Comm'rs, 251 Mich.App....
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