Phillips v. Jordan

• Decision Date: 26 July 2000
• Docket Number: Docket No. 216559.
• Citation: Phillips v. Jordan, 614 N.W.2d 183, 241 Mich.App. 17 (Mich. App. 2000)
• Parties: Kelli Jo PHILLIPS, f/k/a Kelli Jo Jordan, Plaintiff-Appellee, v. John Christopher JORDAN, Defendant-Appellant.
• Court: Court of Appeal of Michigan

614 N.W.2d 183

241 Mich. App. 17

Kelli Jo PHILLIPS, f/k/a Kelli Jo Jordan, Plaintiff-Appellee, v. John Christopher JORDAN, Defendant-Appellant.

Docket No. 216559.

Court of Appeals of Michigan.

Submitted July 7, 1999, at Lansing.

Decided May 9, 2000, at 9:05 a.m.

Released for Publication July 26, 2000.

Bailey & Smith, P.C. (by Mark R. Bailey), Okemos, for the plaintiff.

Thomas J. Dignan, Owosso, for the defendant.

Before: HOLBROOK, JR., P.J., and ZAHRA and J.W. FITZGERALD¹, JJ.

ZAHRA, J.

Defendant appeals as of right from an order denying his petition for a change of custody and granting plaintiff's petition for a change of domicile. We affirm.

Plaintiff and defendant were divorced in January 1994. The judgment of divorce granted the parties joint legal custody of their two-year-old daughter with physical custody awarded to plaintiff. Following the divorce, plaintiff allowed defendant liberal visitation beyond that ordered by the trial court and often asked the paternal grandmother to baby-sit the child in lieu of a hired baby-sitter. On July 28, 1997, the trial court entered a stipulated order signed by both parties changing custody to joint physical and legal custody. The order also provided that plaintiff would keep the child in the Owosso School District until she reached the age of majority, and if plaintiff moved away from Owosso, defendant would be given physical custody of the child.

In April 1998, plaintiff married a man who lives and works in California. In July 1998, plaintiff petitioned the trial court for change of domicile from Michigan to California and requested an assessment of child support. Defendant in turn filed a petition for change of custody and asked the trial court to enforce the July 28, 1997, stipulated order. Plaintiff then petitioned for change of custody and asked the trial court to set aside the stipulated order. At the conclusion of a four-day evidentiary hearing, the trial court set aside the stipulated order, denied defendant's petition for change of custody, and granted plaintiff's petition for change of domicile.

We apply three standards of review in custody cases. The great weight of the evidence standard applies to all findings of fact. A trial court's findings regarding the existence of an established custodial environment and regarding each custody factor should be affirmed unless the evidence clearly preponderates in the opposite direction. Fletcher v. Fletcher, 229 Mich.App. 19, 24, 581 N.W.2d 11 (1998), citing Fletcher v. Fletcher, 447 Mich. 871, 877-878, 526 N.W.2d 889 (1994). An abuse of discretion standard applies to the trial court's discretionary rulings such as custody decisions. Id. Questions of law are reviewed for clear legal error. Fletcher, supra, 229 Mich.App. at 24,581 N.W.2d 11, citing M.C.L. § 722.28; MSA 25.312(8), and Fletcher, supra, 447 Mich. at 881,526 N.W.2d 889. A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law. Fletcher, supra, 229 Mich.App. at 24,581 N.W.2d 11, citing Fletcher, supra, 447 Mich. at 881,526 N.W.2d 889.

Defendant first argues that the trial court erred in setting aside the July 28, 1997, stipulated order. We disagree. Stipulated orders that are accepted by the trial court are generally construed under the same rules of construction as contracts. See Limbach v. Oakland Co. Bd. of Co. Rd. Comm'rs, 226 Mich.App. 389, 394, 573 N.W.2d 336 (1997); Eaton Co. Bd. of Co. Rd. Comm'rs v. Schultz, 205 Mich.App. 371, 379-380, 521 N.W.2d 847 (1994). Like contracts, stipulated orders are agreements reached by and between the parties. Id. at 378-379, 521 N.W.2d 847. However, contract principles do not govern child custody matters. The Legislature imposed on trial courts, through the Child Custody Act, M.C.L. § 722.21 et seq.; MSA 25.312(1) et seq., the duty to review proposed changes in child custody to determine whether the changes would be in the best interests of the child. MCL 722.27(1)(c); MSA 25.312(7)(1)(c). While trial courts try to encourage parents to work together to come to an agreement regarding custody matters, the circuit court retains jurisdiction over the child until the child reaches the age of majority. The trial court cannot blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child. Lombardo v. Lombardo, 202 Mich.App. 151, 160, 507 N.W.2d 788 (1993), citing West v. West, 241 Mich. 679, 683-684, 217 N.W. 924 (1928), and Ebel v. Brown, 70 Mich.App. 705, 709, 246 N.W.2d 379 (1976).

In Napora v. Napora, 159 Mich.App. 241, 406 N.W.2d 197 (1986), as in this case, the parties agreed to a change of custody that was later disputed by the custodial parent. The Napora Court held that the trial court erred in believing that it was required to uphold the stipulation of the parties:

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 convincing evidence that the change is in the best interests of the child. [Id. at 246-247, 406 N.W.2d 197 (citation omitted)].

See also In re Ford Estate, 206 Mich.App. 705, 708, 522 N.W.2d 729 (1994), holding, in part, a stipulation between the parties was not binding because "the parties to a civil matter cannot by their mere agreement supersede procedures and conditions set forth in statutes or court rules." (citation omitted).

In the present case, the trial court entered the stipulated order to change custody without making any independent determination regarding the best interests of the child pursuant to the Child Custody Act. We conclude that the trial court erred in failing to make such a determination.² As such, the trial court was obligated to set aside the July 28, 1997, stipulated order and make its own determination whether a change of custody would be in the child's best interests pursuant to the Child Custody Act. Therefore, we hold the trial court properly set aside the stipulated order of July 28, 1997.

Defendant next argues that the trial court ignored the great weight of the evidence in failing to grant custody to him. We disagree.³ A custody award may be modified on a showing of proper cause or change of circumstances that establishes that the modification is in the child's best interest. MCL 722.27(1)(c); MSA 25.312(7)(1)(c); Dehring v. Dehring, 220 Mich.App. 163, 166, 559 N.W.2d 59 (1996).⁴ However, when a modification of custody would change the established custodial environment of a child, the moving party must show by clear and convincing evidence that it is in the child's best interest. Rummelt v. Anderson, 196 Mich.App. 491, 494, 493 N.W.2d 434 (1992). A custodial environment is established if

over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(1)(c); MSA 25.312(7)(1)(c).]

The trial court acknowledged that defendant and his family played important roles in the child's life, but that, nevertheless, the custodial environment was with plaintiff as opposed to defendant. The trial court noted that this is not a case of plaintiff versus defendant and his mother, Sharon Jordan. In fact, the trial court opined that both plaintiff and defendant would fall short if they had to compete with Sharon Jordan for custody of the child. However, the trial court looked at the factors as they pertained to plaintiff and defendant, not including the extended family.

The evidence revealed that, during defendant's parenting time, the child spent the majority of her time at Sharon Jordan's house. Even on the weekends when defendant was not working, defendant would spend the day with the child, but the child usually slept at Sharon Jordan's house rather than at defendant's house. In fact, defendant testified that the child stayed overnight with him less than five times a year. Defendant rarely spent time alone with the child without the presence of his mother and other relatives. The report of the independent psychologist, Dr. Heather Zak, indicated that the child had probably bonded more closely with the paternal grandmother and aunt than she had with defendant.

The trial court determined that the child had been with plaintiff since birth except for parenting time spent with defendant. The trial court further found that the child looked to plaintiff, as between the parents, for guidance and the other factors listed in M.C.L. § 722.27(1)(c); MSA 25.312(7)(1)(c). On the basis of these facts, we cannot conclude that the trial court's determination that a custodial environment was established with plaintiff was against the great weight of the evidence.

Once it was determined that a custodial environment was established with plaintiff, it was incumbent on defendant to show by clear and convincing evidence that a change in custody was in the child's best interests. Rummelt, supra at 494, 493 N.W.2d 434.

The trial court must examine the factors listed in M.C.L. § 722.23; MSA 25.312(3) to determine the best interests of the child. The trial court found that the parties were equal with regard to all the factors listed in M.C.L. § 722.23; MSA 25.312(3), except factors c, d, and e, which the trial court found to weigh in favor of plaintiff.

MCL 722.23(c); MSA 25.312(3)(c) examines each party's capacity to provide food, clothing, and medical treatment. There was evidence that plaintiff voluntarily refused child support when defendant was out of work because of a broken leg. After defendant returned to work, plaintiff still did not request child support. The evidence showed that plaintiff was the primary caregiver and she provided food, clothing, and toys to the...