Kostreva v. Kostreva

• Decision Date: 24 June 2021
• Docket Number: s. 352029,353316
• Citation: 337 Mich.App. 648,976 N.W.2d 889
• Parties: Kinga KOSTREVA, Plaintiff-Appellee, v. Michael KOSTREVA, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 648

976 N.W.2d 889

Kinga KOSTREVA, Plaintiff-Appellee,

v.Michael KOSTREVA, Defendant-Appellant.

Nos. 352029

353316

Court of Appeals of Michigan.

Submitted June 8, 2021, at Detroit.

Decided June 24, 2021, 9:00 a.m.

Law Offices of Jeffery A. Cojocar, PC, Shelby Township (by Jeffery A. Cojocar ) for Kinga Kostreva.

Speaker Law Firm, PLLC (by Liisa R. Speaker, Kalamazoo) for Michael Kostreva.

Before: Murray, C.J., and Karen M. Fort Hood and Rick, JJ.

Karen M. Fort Hood, J. Defendant appeals as of right the trial court's orders granting plaintiff's request to take the parties’ minor daughter, LKK, to Poland for two weeks, changing the custodianship of the child's passport from defendant to plaintiff, and granting plaintiff's request for attorney fees while denying defendant's request for the same. We affirm in all respects.

I. FACTUAL BACKGROUND

In 2017, the parties divorced and entered a consent judgment of divorce providing that the parties would share joint legal and physical custody of LKK but that defendant would retain LKK's passport. On July 3, 2019, plaintiff's mother—LKK's grandmother—passed away unexpectedly while visiting plaintiff and LKK from Poland. In preparation to return the decedent to her home in Poland for a memorial service and burial, plaintiff sought consent from defendant to travel with LKK to Poland for two weeks. Defendant did not consent, leading plaintiff to file an emergency motion in the trial court on July 18, 2019, to authorize the travel. In the motion, plaintiff requested LKK's passport from defendant and attorney fees. The trial court granted the motion the following day, authorized plaintiff to travel with LKK to Poland from July 20, 2019 to August 3, 2019, and set a hearing on the permanency of the passport's custodian and attorney fees for August 5, 2019.

Following the hearing, a referee recommended that defendant retain custody of LKK's passport, but that defendant reimburse plaintiff for the $1,112.50 in attorney fees necessitated by the motion. Defendant filed objections to the fees. On that basis, a subsequent evidentiary hearing was held on November 1, 2017. Following that hearing, the trial court issued a written opinion and order denying a request by defendant for attorney fees and increasing the fees owed to plaintiff to $6,395. The court additionally, and apparently on its own motion, revisited the issue of permanent custody of LKK's passport and decided plaintiff would be the custodian of the passport. Defendant filed a motion for reconsideration, which the trial court denied. This appeal followed.

II. THE UNIFORM CHILD ABDUCTION PREVENTION ACT

Defendant first contends that the trial court erred in modifying the parties’ consent judgment of divorce to effectively reverse protective orders against parental kidnapping without first considering the factors outlined in the Uniform Child Abduction Prevention Act (UCAPA), MCL 722.1521 et seq. , or the best-interest factors from the Child Custody Act, MCL 722.21 et seq. We disagree.

As a preliminary matter, we note that, under the circumstances, "[n]o exception need be taken to a finding or decision" in order to preserve the issue of whether the trial court erred by modifying the parties’ consent judgment of divorce to change the custodianship of the child's passport from plaintiff to defendant. See MCR 2.517(A)(7). However, for the purposes of this appeal, we find it relevant to note that defendant failed to invoke any argument below concerning the UCAPA or the Child Custody Act. That is to say, defendant's argument on appeal necessarily implies that the trial court should have sua sponte considered provisions of the UCAPA, and in so doing the best-interest factors set forth in MCL 722.23 of the Child Custody Act, prior to awarding custody of the child's passport to plaintiff.

The same general standard of review applies to Parts II through V of this opinion: All custody orders must be affirmed on appeal unless the trial court's factual findings are against the great weight of the evidence, the court committed a palpable abuse of discretion,¹ or the court made a clear legal error on a major issue. MCL 722.28 ; Fletcher v. Fletcher , 447 Mich. 871, 876-877, 526 N.W.2d 889 (1994).

The UCAPA was enacted to "allow courts in this state to impose measures to prevent the abduction of children; to establish standards for determining whether a child is subject to a significant risk of abduction; and to provide remedies." 2014 PA 460, effective January 12, 2015. Under MCL 722.1524(1), "[a] court on its own motion may order abduction prevention measures in a child-custody proceeding if the court finds that the evidence establishes a credible risk of abduction of the child," and under Subsection (2), "[a] party to a child-custody determination ... may file a petition seeking abduction prevention measures to protect the child under this act," MCL 722.1524(2). These provisions indicate that the provisions of the UCAPA are not applicable unless specifically invoked—either by the court or by a party. As specified in Subsection (1), a court's authority to invoke the UCAPA arises when there is evidence establishing "a credible risk of abduction of the child."

In this case, however, although defendant asserts that plaintiff's emergency motion occasioned "the first time a Michigan court was being asked to review an order entered based on the risk factors in the UCAPA," he claims incorrectly that he raised this issue in his response to plaintiff's emergency motion and in his motion for reconsideration. In arguing the issue in his brief on appeal, he nowhere otherwise asserts that the UCAPA was ever invoked by anyone throughout the proceedings below. Further, although defendant complains that plaintiff has at times taken some liberties with her time or travel with LKK, including by not always providing defendant with satisfactory notice, he does not assert that plaintiff ever attempted any actual abduction in the sense of parental kidnapping in derogation of his own parental rights. Because the record does not reveal any evidence establishing "a credible risk of abduction of the child," the trial court did not commit clear legal error for not having sua sponte invoked the UCAPA during the proceedings below.

III. PROPER CAUSE AND CHANGE OF CIRCUMSTANCES

Related to the previous issue, defendant next contends that the trial court abused its discretion by changing the custodianship of the child's passport from defendant to plaintiff without first determining that proper cause or changed circumstances warranted revisiting the issue.

As with the framing of the UCAPA issue, in framing this issue defendant speaks to the trial court having reversed "protective orders" against "parental kidnapping." In fact, defendant calls attention to no specific protective orders, but asserts that in the parties’ predivorce history "a Cook County, Illinois trial court issued protective orders designed to ensure against parental kidnapping." Defendant elaborates that "Appellee-Mother obtained an Emergency Order of Protection against him from the Cook County, Illinois, Domestic Relations Division" in January 2014, citing "01/22/2014 Disposition Order, Cook County, Illinois Case No. 13 OP 75578 (Cook County PPO Order)," and that "the Cook County trial court vacated the Emergency Order of Protection based on Appellee-Mother's motion on January 22, 2014." According to defendant, further such litigation had the result that "[o]n October 14, 2015, the Cook County trial court entered an Order for Visitation placing restrictions on the requested travel, including that Appellant-Father travel to Poland with the minor child." Defendant otherwise refers to "protective language included in a Consent Judgment of Divorce to prevent international parental kidnapping."

Defendant does not specifically assert that the instant trial court failed to afford full faith and credit to any pertinent Illinois orders, all of which predated the parties’ Macomb County divorce proceedings that culminated in a consent judgment. Defendant asserts, without citation of authority, that when "Cook County transferred (not dismissed) its custody case to Michigan because the parties and the courts determined that Michigan was the more convenient forum, the protective provisions went with them into the new state." But he adds that the instant trial court "never needed to review Cook County's findings because the parties reached a Consent Judgment of Divorce that included similar protective provisions[.]" At issue, then, is not the "reversal," or overruling, of specific protective orders originating in Illinois, but rather the enforcement or modification of certain particulars in the parties’ Macomb County divorce judgment.

According to MCL 722.27(1)(c), a court may modify an existing child-custody order "for proper cause shown or because of change of circumstances...." That subsection further states that a court may not change a child's established custodial environment except upon presentation of "clear and convincing evidence that it is in the best interest of the child" and sets forth criteria for determining the existence of an established custodial environment. "However, a lesser, more flexible, understanding of proper cause or change in circumstances is applicable to a request to modify parenting time" in ways that would not affect the child's established custodial environment.

Marik v. Marik , 325 Mich. App. 353, 367-368, 925 N.W.2d 885 (2018) (quotation marks and citation omitted). Further, if the proposed modification would not change the custodial environment, the proponent of the modification need show that the change is in the child's best interests on a mere preponderance of the evidence. Shade v. Wright , 291 Mich. App. 17, 23, 805 N.W.2d 1 (2010). In this case, defendant concedes that plaintiff's motion for custody of the subject child's passport has no bearing on the child's established...