Napora v. Napora, Docket No. 89977

• Decision Date: 05 June 1987
• Docket Number: Docket No. 89977
• Citation: 406 N.W.2d 197,159 Mich.App. 241
• Parties: Norman NAPORA, Plaintiff-Appellee, v. Janet NAPORA, Defendant-Appellant. 159 Mich.App. 241, 406 N.W.2d 197
• Court: Court of Appeal of Michigan — District of US

Page 197

406 N.W.2d 197

Norman NAPORA, Plaintiff-Appellee, v. Janet NAPORA, Defendant-Appellant.

Docket No. 89977.

159 Mich.App. 241, 406 N.W.2d 197

Court of Appeals of Michigan.

Submitted July 28, 1986.

Decided Oct. 29, 1986.

Released for Publication June 5, 1987.

[159 MICHAPP 243] Judith Dennehy Doran, Birmingham, for plaintiff-appellee.

Langs, Schatzberg, Patterson & Langs by E. Philip Adamaszek, Detroit, for defendant-appellant.

Before SULLIVAN, P.J., and ALLEN and KALLMAN, ^* JJ.

PER CURIAM.

On January 8, 1986, the Oakland Circuit Court modified the parties' divorce judgment with respect to custody of their eleven-year-old son, Andrew. Custody was transferred to plaintiff. The order changing custody embodied a stipulation of the parties made in open court on November 8, 1985. Defendant Janet Napora objected to entry of the modified custody order, claiming: (1) that she had entered into the stipulation only as an interim solution to the parties' dispute because she could not afford to travel from Texas to respond to defendant's motion for a change in custody; (2) that a change in custody was not in Andrew's best interests; and (3) that Texas was the proper forum for resolution of the parties' dispute. The trial judge disregarded her objections without hearing them and concluded that the stipulation involved no fraud or coercion, that her financial situation did not amount to duress, and that the stipulation was therefore binding. Defendant appeals from the order as a matter of right. We reverse and remand to the circuit court for further proceedings.

The parties' divorce judgment, dated February [159 MICHAPP 244] 12, 1980, granted defendant Janet Napora custody of the parties' three children. Following a hearing on August 19, 1981, the court granted defendant's motion to remove the children from the State of Michigan to Texas. Plaintiff was granted liberal visitation in Texas, as well as visitation in Michigan for all but four weeks of the children's summer vacations. The summer visitations apparently took place without incident until the summer of 1985. Although the parties' oldest child, sixteen-year-old Jennifer, did not visit during the summer of 1984 or 1985, her absence was apparently not the subject of any legal controversy. However, when Christine, the parties' ten-year-old, did not accompany Andrew in the summer of 1985, an order to show cause was issued to defendant. It is unclear whether Christine ultimately came to visit as a result of this order or because she changed her mind and decided she wanted to visit her father.

In any event, on August 5, 1985, plaintiff Norman Napora moved for modification of the divorce judgment and requested that he be awarded custody of Andrew and Christine. Defendant filed a written response on August 10, 1985, which contained allegations that, if true, would call into question the propriety of changing the custody arrangement. In other words, the response indicated that a change in custody might not be in the children's best interests.

An evidentiary hearing was scheduled for September 10, 1985, where proofs on the allegations in the plaintiff's motion and defendant's response were to be presented. Prior to this date, the court ordered that Christine and Andrew be returned to Texas. Although somewhat unclear, it appears that the September 10th hearing never took place. However, on November 8, 1985, the parties entered[159 MICHAPP 245] into the subject stipulation. This agreement provided that plaintiff would gain custody of Andrew, but did not contain an agreement as to any facts which might shed light on what disposition would be in Andrew's best interests. A stipulation may serve this purpose where such facts are set out on its face and where the court has previously considered the issue of custody as well as having reports from the Friend of the Court. The subsequent order, incorporating the stipulation, was based solely on the stipulation. It was not based on any evidence or on any consideration of Andrew's best interests.

The term "best interests of the child" is defined by M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3), as the sum total of the following factors to be considered, evaluated and determined by the court:

"(a) The love, affection and other emotional ties existing between the parties involved and the child.

"(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

"(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

"(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

"(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

"(f) The moral fitness of the parties involved.

"(g) The mental and physical health of the parties involved.

"(h) The home, school and community record of the child.

[159 MICHAPP 246] "(i) The reasonable preference of the child if the court deems the child to be of sufficient age to express preference.

"(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

"(k) Any other factor considered by the court to be relevant to a particular child custody dispute."

A court may not modify or amend an order so as to change a child's established custodial environment unless the court is presented with clear and convincing evidence that such a change is in the best interests of the child. M.C.L. Sec. 722.27(c); M.S.A. Sec. 25.312(7)(c). The best interest of the child is the controlling factor in any custody dispute. M.C.L. Sec. 722.25; M.S.A. Sec. 25.312(5). This Court will affirm a child custody disposition unless the trial court makes findings of fact against the great weight of the evidence, commits a palpable abuse of discretion, or commits a clear legal error on a major issue. M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8); Theroux v. Doerr, 137 Mich.App. 147, 149, 357 N.W.2d 327 (1984).

In the present case, we find that the trial court erred by believing that it was required to uphold the stipulation of the parties. Although stipulations are favored by the judicial system and are generally upheld, Meyer v. Rosenbaum, 71 Mich.App. 388, 393, 248 N.W.2d 558 (1976), a parent may not bargain away a child's right by agreement with a former spouse. Sayre v. Sayre, 129 Mich.App. 249, 252, 341 N.W.2d 491 (1983) (pertaining to child support as opposed to child custody). Despite any agreement which the parties may reach in regard to the custody of their child, where a custodial environment is found to exist physical custody should not be changed absent clear and [159 MICHAPP 247] convincing evidence that the change is in the best interests of the child. Moser v. Moser, 130 Mich.App. 97, 343 N.W.2d 246 (1983). Accordingly, we find it necessary to remand to the trial court for consideration of whether an established custodial environment exists and, if so, whether changing custody would be in the best interest of Andrew as that term is defined by M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3).

Defendant also argues that the trial court erred in its disposition of her motion requesting that the court decline jurisdiction. The court refused to consider the matter until the prior order was complied with and custody of Andrew was transferred to plaintiff. Seconds later, the court indicated it was denying the motion. Although the basis for denial is unclear, based on Anderson v. Anderson, 142 Mich.App. 837, 840, 371 N.W.2d 435 (1985), we find no error.

We reverse the decision of the trial court with respect to the change of Andrew's custody and remand for proceedings consistent with this opinion.

KALLMAN, Judge (dissenting).

I respectfully dissent from the majority's holding that the trial court erred in concluding that it was required to uphold the stipulation of the parties. I believe that both the letter and the spirit of the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq., support the opposite conclusion.

Section 7 of the act, M.C.L. Sec. 722.27; M.S.A. Sec. 25.312(7), provides in part:

"(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the [159 MICHAPP 248] circuit court, for the best interests of the child the court may:

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"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances...