Kubicki v. Sharpe

• Decision Date: 28 August 2014
• Docket Number: Docket No. 317614.
• Parties: KUBICKI v. SHARPE.
• Court: Court of Appeal of Michigan — District of US

306 Mich.App. 525

858 N.W.2d 57

KUBICKI

v.SHARPE.

Docket No. 317614.

Court of Appeals of Michigan.

Submitted Aug. 5, 2014, at Detroit.

Decided Aug. 28, 2014 at 9:00 a.m.

Robert A. Switzer for plaintiff.

Law Offices of Suzanna Kostovski (by Suzanna Kostovski, Detroit) for defendant.

Before: GLEICHER, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.

Opinion

PER CURIAM.

This child custody dispute requires us to construe a provision of the Child Custody Act intended to safeguard the custodial rights of a parent called to active military duty. Holly Kubicki, an active-duty member of the United States Army, contends that by placing her son in the temporary custody of his father, the circuit court deprived her of the statute's protection. Because the father filed a change of custody motion before the mother was called to active duty, we find the relevant statutory language inapplicable. Nevertheless, we must vacate the custody order and remand for a new evidentiary hearing, as the court failed to consider the child's wishes.

I. UNDERLYING FACTS AND PROCEEDINGS

DLS was born in 2002 to plaintiff, Holly Westmoreland (now Kubicki), and defendant, Dale Sharpe, Jr. The parties never married. Holly and Dale briefly lived together with the child.¹ In 2005, they consented to a judgment awarding Holly sole legal and physical custody and granting Dale “reasonable parenting time[.]”

In 2006, Dale moved for a change of custody. He asserted that Holly had established a coguardianship of the minor child with her sister and brother-in-law and that due to Holly's living arrangement, the child “does not have his own bedroom or bed.” Holly retorted that she obtained the guardianship so that the child would have health insurance, maintaining that Dale, whose child support payments were substantially in arrears, had consented to it. She denied that her son lacked an appropriate place to sleep. The circuit court terminated the guardianship and ordered that Holly and Dale share joint legal custody, with Holly having primary physical custody.

Dale again moved to modify DLS's custody in November 2012.² He averred that Holly planned to join the United States military, which “will either require physical displacement of the minor son and complete disruption of the established custodial environments with both parents, or he will be left in the custody of his step-father.”³ According to the motion, DLS expressed a preference to live with his father “if his mother is absent.” Dale requested an order stating that when Holly “is in training or deployed outside southeastern Michigan in the U.S. military, [Dale] will have primary physical custody.” A referee ascertained that Holly had enlisted in the Army and would start basic training in January 2013. Holly intended to leave the child with her husband, Daniel Kubicki, during basic training. If subsequently stationed more than 100 miles from her home, Holly planned to file a motion for a change of domicile and to allow Dale expanded parenting time. The referee determined that Dale failed to establish grounds warranting a custody review.

Dale objected to the referee's recommendation and the circuit court scheduled a hearing for January 11, 2013. Before the hearing was held, Holly filed a motion for a change of domicile. She asserted that after completing 12 weeks of basic training she would be deployed more than 100 miles away and that “it would be in the best interests of the child to remain primarily in her family's care and custody during active duty deployment.” Holly explained that her “Army-retired husband and their two children” would live in on-base housing and that Kubicki would “assume most housekeeping and child care responsibilities.”⁴

It is unclear whether the circuit court conducted the hearing scheduled for January 2013.⁵ In an order dated January 11, 2013, the circuit court expanded Dale's parenting time and called for “the step-parent” to “have parenting time during the balance of the month.” The court did not address Dale's objections to the referee's recommendation, and instead scheduled a single hearing concerning the custody and domicile motions. In April 2013, Dale filed a motion seeking modification of the January 11, 2013 order. He alleged that he had only recently learned that approximately two years earlier, Kubicki was arrested and charged with domestic violence after shooting Holly's dog. According to Dale's motion, Kubicki ultimately pleaded guilty to a charge of “killing an animal” and was sentenced to two years' probation. The motion further averred that, while in Kubicki's care, the child had been tardy from school on nine occasions and “wears dirty clothes,” and that Kubicki did not help the child with his homework.

On May 3, 2013, the circuit court entered an order awarding Dale “ temporary custody,” with Holly granted weekend parenting time upon her return from basic training. The order concluded: “This order shall remain in force and effect until there is a decision on [Holly's] motion for change of domicile.”

At the outset of the June evidentiary hearing, the circuit court characterized the issue presented as involving Holly's change of domicile. The court acknowledged awareness of the pertinent language of MCL 722.27(1)(c) concerning the active military duty of a parent. Regarding Dale's motion to change custody, the circuit court stated:

One of the other things that we talked about is whether this is a motion for change of custody and whether the Court has to look at all the best interests factors in making a determination on this matter. We will be moving forward with mother's Motion for Change of Domicile, and the Court will be looking at the factors that are involved with that, and then based on the facts the Court will have to make the determination of whether I have to apply the best interests factors to that.

Holly testified that she enlisted in the Army on January 2, 2013, completed basic training, and deployed to Fort Riley, Kansas, in May 2013. She described her job as a cook required her to work from 4:00 a.m. until 1:30 p.m. Holly secured a four-bedroom house on the base located in a community designated for families. She contemplated that Kubicki would care for the children during the morning, pack their lunches, and walk them to school. She would assume parenting responsibilities in the afternoon.

The focus of the hearing then turned to Kubicki's 2011 arrest. Holly recounted that on the day of his arrest, she and Kubicki had a “big fight” about her 12–pound miniature Doberman pinscher. The dog had bitten Kubicki and the children on many occasions, and Kubicki insisted that she get rid of it. The argument escalated. Kubicki took Holly's identification papers and a cable modem. Holly responded by telling Kubicki that she had hidden something of his. The two then fought over a phone charger, which broke. Kubicki threw Holly's dog across the kitchen, and the two moved their dispute outside. While Kubicki choked the dog, Holly bit Kubicki's wrist. Although Holly claimed in a written statement that Kubicki had pulled her hair, she recanted at the hearing, asserting that he merely “pulled” his fingers through it. When she stopped biting Kubicki, she kicked Kubicki's dog. He retrieved a pistol from the home, held her miniature pinscher in the air by the collar, and shot it in the head at point-blank range.

Holly told the police that she tried to leave the home with the children, but Kubicki forbade her from leaving with his son that was born from an earlier relationship. After she called 911, she and the children fled the scene. The police arrested Kubicki and seized two pistols and eight rifles from the home.

The prosecutor charged Kubicki with killing an animal, a four-year felony under MCL 750.50b, and use of a firearm in the commission of a felony in violation of MCL 750.227b. Kubicki pleaded guilty to the charge of killing an animal in exchange for dismissal of the felony-firearm charge. The court sentenced him to a two-year term of probation during which he was ordered to complete an anger-management program and a residential treatment program for posttraumatic stress disorder (PTSD) offered by the Veterans Administration (VA). Holly admitted that Kubicki had never entered the residential treatment program, insisting that he did not suffer from PTSD.

Kubicki explained that he had served for 6 1/2 years in the Army and was medically discharged after a roadside bomb explosion fractured several bones in his cervical spine. The Army considers him 30% disabled and able to work. Kubicki admitted killing the dog, but expressed his belief that he had acted “in self defense from a dog that bit me[.]” Contrary to his wife's testimony, Kubicki conceded that he suffered from PTSD and that he had been treated for this disorder on approximately five occasions before the dog incident. Kubicki acknowledged that his plea agreement required him to obtain residential treatment for PTSD, but claimed that he had not been permitted to enroll because the VA program had no room for him. He claimed that he successfully completed the anger-management class. Despite having been diagnosed with “major depressive disorder ” by the VA, Kubicki denied suffering from this condition and admitted that he did not take his prescribed antidepressant medication.

The circuit court engaged in the following dialogue with Kubicki:

The Court: ... [D]o you have something from [the] VA Hospital or can you provide the Court with anything showing that you have completed your treatment for [PTSD] and you're no longer considered to have that condition?

Kubicki: I'm sure I can get with Dr. Smith or something on that, your Honor.

The Court: You do understand that that's the essence of this case, right?

Kubicki: Yes, your Honor.

The Court: You do understand that, right?

Kubicki: I do now, your Honor.

The Court: You understand that the reason we're here is that [Dale] is worried about the safety of his son in your care and custody

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