Shulick v. Richards

• Decision Date: 19 December 2006
• Docket Number: Docket No. 270916.
• Citation: 273 Mich. App. 320,729 N.W.2d 533
• Parties: Sheilah Kay SHULICK, Plaintiff-Appellant, v. Jeffrey Lee RICHARDS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

729 N.W.2d 533

273 Mich. App. 320

Sheilah Kay SHULICK, Plaintiff-Appellant, v. Jeffrey Lee RICHARDS, Defendant-Appellee.

Docket No. 270916.

Court of Appeals of Michigan.

Submitted December 13, 2006, at Lansing.

Decided December 19, 2006, at 9:20 a.m.

Released for Publication March 14, 2007.

Philip E. Hodgman, East Lansing, for the plaintiff.

Mallory, Cunningham, Lapka & Scott, P.L.L.C. (by Todd S. Selin), Lansing, for the defendant.

Before: SERVITTO, P.J., and FITZGERALD and TALBOT, JJ.

SERVITTO, P.J.

Plaintiff appeals as of right an order changing the physical and legal custody of the parties' minor children from plaintiff, solely, to the parties, jointly. We hold that the trial court's finding that the parties could cooperate on important decisions concerning the welfare of the children was not against the great weight of the evidence and that the trial court did not abuse its discretion in awarding the parties joint legal and physical custody of the minor children. We also conclude, however, that the trial court erred in dividing the decision-making authority between the parties in the event that they cannot agree on decisions affecting the welfare of their children and thus remand to the trial court for removal of this provision from the order.

The parties to this action were never married. This action was initiated in 2001, when plaintiff filed a complaint for support, naming defendant as the father of two minor children. Defendant acknowledged paternity, and a support order was entered shortly thereafter. The support order included provisions awarding sole legal and physical custody of the minor children to plaintiff and awarding defendant reasonable parenting time. On October 7, 2002, an order was entered awarding defendant specific parenting time: alternate weekends from Friday at 5:30 p.m. until Sunday at 7:00 p.m., every Tuesday and Thursday from 5:30 p.m. until the following morning when school or day care began, and alternate holidays.

In October 2005, defendant moved to modify custody and clarify the parenting time. Specifically, defendant sought joint legal and physical custody of the children and requested that parenting time be modified to allow him to pick the children up from day care. A hearing followed, and, on May 24, 2006, an amended order was entered awarding the parties joint physical and legal custody of the minor children. The order further contained a provision that if the parties were unable to agree on issues affecting the children's health, education, and welfare, plaintiff would have the primary responsibility for making educational decisions and defendant would have the primary responsibility for making health decisions.

MCL 722.28 provides:

To expedite the resolution of a child custody dispute by prompt and final adjudication, 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.

There are thus three different standards of review applicable to child custody cases. The clear legal error standard applies when the trial court errs in its choice, interpretation, or application of the existing law. LaFleche v. Ybarra, 242 Mich.App. 692, 695, 619 N.W.2d 738 (2000). Findings of fact are reviewed pursuant to the great weight of the evidence standard. In accord with that standard, this Court will sustain the trial court's factual findings unless "the evidence clearly preponderates in the opposite direction." Id. Discretionary rulings, including a trial court's determination on the issue of custody, are reviewed for an abuse of discretion. Id.

Because there has been much discussion of late concerning what, exactly, an "abuse of discretion" standard entails, we take this opportunity to clarify the abuse of discretion standard applicable in child-custody cases. In Spalding v. Spalding, 355 Mich. 382, 384, 94 N.W.2d 810 (1959) (addressing a request for an increase in child support), our Supreme Court stated that where the exercise of discretion turns upon a factual determination made by the trier of fact, "an abuse of discretion involves far more than a difference in judicial opinion between the trial and appellate courts." According to the Spalding Court:

The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an "abuse" in reaching such determination, the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias. [Id. at 384-385, 94 N.W.2d 810.]

In Maldonado v. Ford Motor Co., 476 Mich. 372, 719 N.W.2d 809 (2006), however, our Supreme Court specifically rejected the formulation of the abuse of discretion standard set forth in Spalding. The Court instead found the standard set forth in People v. Babcock, 469 Mich. 247, 666 N.W.2d 231 (2003), preferable and adopted it as the "default" abuse of discretion standard. Maldonado, 476 Mich. at 388, 719 N.W.2d 809. Babcock defined "abuse of discretion" as follows:

[A]n abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome. . . . An abuse of discretion occurs . . . when the trial court chooses an outcome falling outside this principled range of outcomes." [Babcock, 469 Mich. at 269, 666 N.W.2d 231.]

Notably, by characterizing the "principled outcomes" standard as the default standard, Maldonado recognized that another formulation could exist. Accordingly, a default abuse of discretion standard of review is an assumed or assigned standard of review unless the law instructs otherwise. Fletcher v. Fletcher, 447 Mich. 871, 526 N.W.2d 889 (1994), has instructed otherwise with respect to MCL 722.28.

In Fletcher, our Supreme Court interpreted the standards of review enumerated in MCL 722.28. With respect to the "palpable abuse of discretion" standard set forth in the statute, Fletcher concluded that "the Legislature's reference to `palpable,' the same word this Court used in Spalding, manifests its intent to adopt a high standard of review not significantly unlike the Spalding standard." Fletcher, 447 Mich. at 880, 526 N.W.2d 889. The implication is that when the Legislature wrote MCL 722.28, it did so with the knowledge of Spalding and purposefully employed a word used by the Spalding Court, thereby signaling its adoption of the standard as articulated in Spalding. Longstanding rules of statutory construction indicate that the Legislature's intent "`must prevail regardless of any conflicting rule of statutory construction.'" Green Oak Twp. v. Munzel, 255 Mich.App. 235, 240, 661 N.W.2d 243 (2003) (citation omitted). Indeed, "[i]t is a well-established principle of statutory construction that the Legislature is presumed to act with knowledge of statutory interpretations by" Michigan's appellate courts. Gordon Sel-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505-506, 475 N.W.2d 704 (1991).

Given Fletcher's focus on the similarity in language between Spalding and MCL 722.28 and how this informs of legislative intent, the Fletcher formulation of the abuse of discretion standard applies here. Thus, the trial court's custody decision is entitled to the utmost level of deference. Having clarified the abuse of discretion standard applicable in this case, we now turn to the specific issues raised by plaintiff on appeal.

Plaintiff first contends that the trial court abused its discretion in awarding joint legal custody of the minor children in light of the parties' inability to cooperate or agree regarding important decisions affecting the children's welfare. We disagree.

The Child Custody Act, MCL 722.21 et seq., governs child-custody disputes between parents. Pursuant to MCL 722.26a(1), in custody disputes between parents, the parents shall be advised of joint custody, and, "[a]t the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request."

"[J]oint custody" means an order of the court in which 1 or both of the following is specified:

(a) That the child shall reside alternately for specific periods with each of the parents.

(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. [MCL 722.26a(7).]

MCL 722.26a(1) further provides:

The court shall determine whether joint custody is in the best interest of the child by considering the following factors:

(a) The factors enumerated in section 3 ["best interest" factors].

(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

On the issue of legal custody, plaintiff challenges only factor b.

Although it expressed some reservations, the trial court determined that the parties had recently displayed a willingness to "talk about things and get things done," so joint legal custody was appropriate. While there was certainly evidence presented that the parties harbored some personal animosity and had some difficulty communicating in the past, both parties testified that their communications had recently improved. Defendant specifically testified that he believed they could work together for the overall best interests of the children. While plaintiff expressed some concern about whether they would be able to continue to work together in the future on things such as taking the children to events, she testified that she would ideally want to have defendant's help and input in making educational decisions for the children. In addition, the...