Riemer v. Johnson

• Decision Date: 18 August 2015
• Docket Number: Docket No. 321057.
• Citation: 876 N.W.2d 279,311 Mich.App. 632
• Parties: RIEMER v. JOHNSON.
• Court: Court of Appeal of Michigan — District of US

311 Mich.App. 632

876 N.W.2d 279

RIEMER

v.JOHNSON.

Docket No. 321057.

Court of Appeals of Michigan.

Submitted March 10, 2015, at Lansing.

Decided Aug. 18, 2015, at 9:20 a.m.

Phelps Legal Group, PLC (by Eric W. Phelps, Traverse City and Morgan G. Shier), for plaintiff.

Scott Bassett, for defendant.

Before: WILDER, P.J., and SERVITTO and STEPHENS, JJ.

WILDER, P.J.

Plaintiff Andrew Riemer appeals as of right the trial court's judgment in this custody proceeding and challenges the court's determinations regarding custody, parenting time, child support, and attorney fees. Defendant Christa Johnson cross-appeals. We affirm.

I. FACTS AND PROCEDURE

The trial court set forth the following relevant facts in its January 31, 2014 opinion:

The parties are the parents of [ARJ], born April 1, 2011, and were never married.

Plaintiff/Father is Dr. Andrew Riemer ... who is 52 years old. He is an ophthalmologist who owns his own practice, Riemer Eye Care, with four locations. [Plaintiff] lives in Ludington, Michigan, on Hamlin Lake. He was previously married to Lori Riemer, from whom he was divorced in 2004. [Plaintiff] and Lori Riemer have six children who are now all adults.

Defendant/Mother is Dr. Christa Johnson ... who is 41 years old. She is a chiropractor who shares ownership in her own practice, Zeller & Johnson, in Manistee. [Defendant] lives in Manistee, Michigan. She was previously married to Eric Ross, from whom she was divorced in 2007. They had no children.

Plaintiff and Defendant started dating in late 2007 or early 2008. [Defendant] became pregnant three times during her relationship with [plaintiff]. The first pregnancy was in May 2009, which resulted in a miscarriage.

During the time of the relationship between [plaintiff and defendant, plaintiff] fathered a child with Sara Zingery. The child, [AR], was born on July 16, 2009. [Plaintiff] and Ms. Zingery were not married. Legal proceedings as to custody ensued with [plaintiff] and Ms. Zingery agreeing on shared custody of the child, [AR], with the actual sharing of time on a 50/50 basis commencing in the summer of 2013.

Subsequent to the birth of [AR], the relationship continued between [plaintiff] and [defendant] with a second pregnancy occurring, followed by a miscarriage. [Defendant]'s third pregnancy with [plaintiff] occurred thereafter with the child, [ARJ], born on April 1, 2011.^[1] An Acknowledgment of Parentage was signed, and [plaintiff]'s name appears as the father on the birth certificate.

[Plaintiff] and [defendant] were unable to agree on long-term custody and/or parenting time arrangements, and the custody suit was brought forth by [plaintiff]. Ultimately, the parties' relationship continued to deteriorate with neither marriage occurring nor continuation of their romantic relationship.

The trial court found that the parties' relationship continued to deteriorate after ARJ's birth. The trial court further found that defendant initially allowed plaintiff parenting time on her own terms and predominately at her home. Defendant became upset and even more restrictive with plaintiff's parenting time after seeing plaintiff with AR in public. The parties engaged in mediation, which resulted in parenting time for plaintiff every Tuesday and Thursday from 6:30 p.m. to 10:00 p.m., and four to six hours every other Friday, Saturday, and Sunday. On September 1, 2011, plaintiff filed the instant action for custody and parenting time. On February 9, 2012, the trial court entered a temporary order for the same parenting time schedule that resulted from mediation and required plaintiff to pay defendant $1,500 a month in child support, effective November 8, 2011. At the November 8, 2011 hearing, the parties and the trial court addressed whether the temporary child support of $1,500 could be modified. Plaintiff's attorney believed that the trial court "ordered [the $1500] to continue until replaced after a review by a different figure." The trial court stated that "neither party is stuck with" the temporary support figure.

On July 11, 2013, the trial court entered another temporary order changing plaintiff's parenting time to every Tuesday and Thursday from 6:00 p.m. to 9:30 p.m., and every other weekend from Friday at 6:00 p.m. to Saturday at 6:00 p.m., and Sunday from 2:30 p.m. to 8:30 p.m. The trial court also ordered plaintiff to pay defendant $3,000 a month in child support. In its written order, the trial court ruled:

Defendant's request for retroactive application and mandatory child support guideline applicability is reserved; the Court will address final child support amounts or deviation therefrom, and resultant arrearages, if any, consistent with this Court's previous order of November 8, 2011, when it issues its opinion/order after conclusion of the present evidentiary hearing.

Following approximately 19 days of trial, the trial court entered its January 31, 2014 opinion regarding custody, parenting time, child support, and attorney fees. First, the trial court ruled that ARJ had an established custodial environment with both parents. Then it determined that factors (a), (b), (e) were equal, factors (c), (j), (k), and (l ) favored plaintiff, factor (d) favored defendant, and factors (f), (g), (h), and (i) favored neither party. The trial court ordered shared physical custody with gradually increasing parenting time for plaintiff "developed over time for a smooth transition towards accomplishing a goal of approximately equal co-parenting time for both parents."²

The trial court awarded joint legal custody of ARJ to plaintiff and defendant. Although it found that defendant's anger toward plaintiff regarding their relationship had previously reduced her willingness to facilitate a close relationship between ARJ and plaintiff, the trial court concluded that the parties nevertheless had satisfactorily resolved important matters affecting ARJ's welfare and it was in ARJ's best interests for the parties to share decision-making authority.

In awarding child support, the trial court calculated plaintiff's adjusted gross annual income as $1,493,481, based on the average adjusted gross income from his tax returns in 2010, 2012, and his estimated return in 2013. The trial court calculated defendant's adjusted gross annual income as $107,722, based on the average adjusted gross income from her tax returns in 2010 and 2011, noting that in 2012, she had voluntarily reduced her work schedule to care for ARJ. From November 1, 2011, to June 15, 2012, the trial court ordered plaintiff to pay defendant $6,229 a month in child support. From June 15, 2012, to June 18, 2013, the trial court ordered plaintiff to pay defendant $6,807 a month in child support. From June 18, 2013, to January 31, 2014, the trial court ordered plaintiff to pay defendant $6,804 a month in child support. From January 31, 2014, to April 1, 2015, the trial court ordered plaintiff to pay defendant $6,204 a month in child support. From April 1, 2015, to June 1, 2017, the trial court ordered plaintiff to pay defendant $4,511 a month in child support. After June 1, 2017, the trial court ordered plaintiff to pay defendant $3,012 a month in child support. The trial court noted that it had intended the temporary orders for child support from February 9, 2012, and July 11, 2013, to be "modifiable retroactively back to the date of the filing of the motion for support because not all of the information was available at the time." It further noted its statement at the November 8, 2011 hearing that neither party would be "stuck with the support figure."

Finally, the trial court ordered plaintiff under MCR 3.206(C)(2)(a) to pay a portion of defendant's attorney fees and the expenses for her expert witnesses. The trial court ruled that defendant could have been well represented by one attorney at $200 an hour for a total of $186,654 in attorney fees. The trial court also fixed defendant's expert witness expenses at $41,050, for a total of $227,704 to defend against plaintiff's action. From this total, the trial court created what it called a "war chest" of attorney fees and expert witness costs—multiplying by two $227,704, the amount attributed to each party for attorney and expert witness fees, for a total of $455,408. The trial court assigned responsibility for payment of the war chest total to each party based on the percentage each party contributed to their combined annual incomes—defendant earned 6.7% and plaintiff earned 93.3%. The trial court ordered defendant to pay $30,512 toward the war chest amount and plaintiff to pay the remaining $424,896 ($197,192 of which would be contributed to defendant's fees). In addition, the trial court ordered defendant to pay any of her fees exceeding $200 an hour and the fees charged by her second attorney, noting that either of defendant's attorneys alone would have been competent to defend her case.

II. CUSTODY AND PARENTING TIME

The parties first challenge the trial court's order regarding custody and parenting time.

In child custody disputes, " ‘all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ " Dailey v. Kloenhamer, 291 Mich.App. 660, 664, 811 N.W.2d 501 (2011), quoting MCL 722.28. Accordingly, the trial court's findings of fact are reviewed under the great weight of the evidence standard, which precludes a reviewing court from substituting its judgment on questions of fact unless the facts "clearly preponderate in the opposite direction." Fletcher v. Fletcher, 447 Mich. 871, 878, 526 N.W.2d 889 (1994). Under this standard, a court "should review the record in order to determine whether the verdict is so contrary to the great weight of the evidence as to disclose an unwarranted finding, or whether the verdict is so plainly a miscarriage of justice as to call for a new trial...." Id. (Quotation marks...