Pierron v. Pierron

Decision Date03 February 2009
Docket NumberDocket No. 282673.
Citation765 N.W.2d 345,282 Mich. App. 222
PartiesPIERRON v. PIERRON.
CourtCourt of Appeal of Michigan — District of US

Scott Bassett and Miller, Canfield, Paddock and Stone, P.L.C. (by Lynn Capp Sirich), for the plaintiff.

Beverly Safford, Saint Clair Shores, for the defendant.

Before: MARK J., CAVANAGH, P.J., and JANSEN and METER, JJ.

JANSEN, J.

In this child custody dispute, defendant appeals by right the circuit court's order requiring that the minor children remain enrolled in the Grosse Pointe Public Schools. Defendant also challenges the circuit court's refusal to consider the merits of her request for attorney fees. We affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I

Plaintiff and defendant were married in October 1993, and were divorced in April 2000. The parties had two children during the marriage—Andrew Pierron, born May 6, 1994, and Madeline Pierron, born January 25, 1999. The judgment of divorce granted the parties joint legal custody of the children, but granted defendant sole physical custody of the children. Plaintiff was granted "reasonable and liberal parenting time with the minor children, in a manner consistent with the children's best interests, which shall include alternate weekends, alternate holidays, time during school and summer vacations, and as otherwise agreed between the parties." The judgment of divorce specifically provided that "[b]oth parents shall be fully informed with respect to the children's progress in school and shall be entitled to participate in all school conferences, programs and other related activities in which parents are customarily involved," and that "[b]oth parents shall have full access to the children's school records, teachers, [and] counselors ...." The judgment further provided that "[t]he State of Michigan shall be the domicile and residence of the minor children, and the domicile and residence of the minor children shall not be removed from the State of Michigan without the approval of the Judge who awarded custody, or his successor, until the children attain the age of eighteen (18) or until further order of the Court."

An amended judgment of divorce, entered in June 2001, stated in relevant part that "the Judgment of Divorce shall be amended to provide that the parties shall have joint legal custody and shared parenting time." The amended judgment also provided that "[defendant's] residence continues as primary residence; each party's residence is the child's legal residence pursuant to statute.... In all other respects and except as herein stated the Judgment of Divorce shall remain in full force and effect." At the time of the amended judgment of divorce, both plaintiff and defendant resided in Grosse Pointe Woods and the children attended the Grosse Pointe Public Schools.

Sometime in mid-2006, defendant inherited money from her late father. Defendant decided to use the money to purchase a new home.1 In April 2007, defendant made an offer to purchase a home in Howell. Upon learning of defendant's actions in this regard, plaintiff's attorney sent defendant a letter on April 27, 2007, which stated in relevant part, "While [plaintiff] certainly understands your desire to move to Howell and be closer to your sister, he believes that such a move at this time is not in the best interest of the minor children." The letter alleged that defendant's planned move to Howell would "hamper [the children's] access" to plaintiff and would "have a profound and negative impact on the children's relationship with their father...." Plaintiff's attorney wrote that plaintiff was "willing to go to great lengths to find a workable solution that will allow the children to remain in their community and physically close to both parents," and continued:

To demonstrate his commitment and concern for the minor children, [plaintiff] is willing to move out of his current Grosse Pointe Woods residence and sell it to you for $150,000, the identical price of the Howell condo you are currently planning on purchasing. [Plaintiff] is willing to do this, despite the fact that his house is worth approximately $250,000 in today's market. As you know, [plaintiff] has made significant improvements to this house and would basically be giving you $100,000 in free equity. The insurance and taxes on the Grosse Pointe Woods residence are somewhat comparable to the taxes, insurance and association dues which you would pay for your new condominium. Moreover, the taxes and insurance would be deductible and provide a significant savings towards your income tax. The offer to purchase [plaintiff's] residence at a $100,000 below-market value is contingent upon you agreeing to remain within 20 miles of Grosse Pointe Woods until the minor children graduate from high school or further agreement.

The letter urged defendant to seriously consider plaintiff's offer and asked that defendant "take into account the potentially devastating effects a move to Howell could have on the children at this time...."

On May 23, 2007, in anticipation of defendant's planned move to Howell, plaintiff's attorney sent a second letter, accompanied by a proposed stipulated order regarding parenting time. In addition to requesting significant parenting time for plaintiff, the proposed stipulated order would have required defendant to "be responsible for all transportation for parenting time" and to "deliver the children to Plaintiff-Father's home at the commencement of his parenting time and pick up the children at the end of Plaintiff-Father's parenting time." In response to this proposed stipulated order, defendant expressed that she was "unwilling and unable to drive in both directions for parenting time exchanges" between Howell and Grosse Pointe Woods, and that she was "willing to drive one (1) way" only.

In June 2007 defendant moved to Howell, and in July 2007 defendant attempted to enroll her children in the Howell Public Schools. Plaintiff remained opposed to defendant's move with the children, and therefore filed a motion on July 13, 2007, in an effort to prevent the change of school districts.2 The motion alleged that plaintiff had learned that defendant "intended to move with the children from Grosse Pointe Woods to Howell, Michigan, more than sixty (60) miles away," and that he had "discovered, from the minor children, that Defendant intended to remove the children from the Grosse Pointe school system and enroll them in Howell Public Schools for the 2007-2008 school year." The motion asserted that plaintiff had "made several attempts to talk with Defendant and propose alternatives that would allow for the children to remain in the Grosse Pointe Woods area," but that plaintiff had been "rebuffed and ignored." Plaintiff argued that defendant's "unilateral decision to move the children more than an hour from Plaintiff's home and completely uproot them from their school district" was both "a violation of the joint legal custody provision of the parties' Judgment of Divorce" and "a significant modification of the children's established custodial environment and a proper cause for the court to consider a modification of the custodial arrangement." Plaintiff requested "that an order be entered directing that the minor children attend Grosse Pointe ... schools" and that the court "render an award of sole custody to the Plaintiff."

The circuit court conducted a six-day evidentiary hearing during September and October 2007 for the purpose of determining whether it was in the best interests of the minor children to remain enrolled in the Grosse Pointe Public Schools or to be enrolled in the Howell Public Schools. The court considered both the testimony of witnesses and a stipulated statement of facts that had been jointly submitted before the hearing. Substantial evidence was presented concerning the relative quality of the Grosse Pointe and Howell school districts. The court also heard significant evidence concerning the available amenities, recreational opportunities, crime rates, and quality of life in the communities of Grosse Pointe Woods and Howell.

At the conclusion of the evidentiary hearing, the circuit court read its decision from the bench:

Parents who enjoy joint legal custody are entitled to share in decisions concerning their children's education....

Neither parent may unilaterally decide which school a child attends nor may a parent change the school without attempting to consult and obtain the agreement of the other parent. Where a dispute arises, the Court must decide the issue utilizing the applicable best interest factors contained in the Child Custody Act, MCL 722.23....

In school cases, as in all cases where the custody analysis is triggered, the Court must initially ascertain whether a prior order has been entered by the Court. If a prior order addressing the relevant custody issue exists, MCL 722.27(1)(c) provides that a court may not modify that prior order absent a showing of proper cause or change in circumstances. This threshold determination may be made by the Court without an evidentiary hearing.... * * *

[A]s in the present case, if there is no prior order addressing the school, generally it must be established by a preponderance of the evidence that the change in schools is in the best interests of the child.

If, however, the change in schools will also impact the established custodial environment as defined in MCL 722.27(1)(c), the moving party has the burden of proving by clear and convincing evidence that the change of schools is in the best interests of the child.

In that situation the Court may address not only the change in schools but whether there should be a change in custody. The Court must make specific findings concerning each of the ... best interest factors outlined in MCL 722.23. The Court must also address the factors separately as to each...

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