Sulaica v. Rometty
| Decision Date | 18 December 2014 |
| Docket Number | Docket Nos. 321275,322760. |
| Citation | 866 N.W.2d 838,308 Mich.App. 568 |
| Parties | SULAICA v. ROMETTY. |
| Court | Court of Appeal of Michigan — District of US |
Anne Argiroff, PC (by Anne Argiroff ), for plaintiff.
Melinda N. Deel, PLLC (by Melinda N. Deel), for defendant.
Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.
In Docket No. 321275, plaintiff, Paul Sulaica, Jr., appeals as of right the trial court's order granting a motion filed by defendant, Leslie Rometty, to change the domicile of the parties' minor child from Michigan to Florida. Plaintiff also argues that the trial court erred by ordering him to pay $1,000 in attorney fees in connection with his filing of a motion to extend parenting time and for joint legal custody. In Docket No. 322760, plaintiff appeals as of right the trial court's order denying plaintiff's motion to enter a parenting time order and denying plaintiff's request for attorney fees. We consolidated the appeals.
We affirm in part, reverse in part, and remand for further proceedings.
These appeals arise from orders concerning the domicile, custody, and parenting time of the parties' minor child. The parties were never married. They resided together for the first 1 ½ years of their child's life.
In October 2002, plaintiff filed a complaint for custody, which ultimately led to a December 9, 2003 consent judgment specifying custody, parenting time, and support. That consent judgment granted defendant sole legal custody and both parties joint physical custody of the child. Defendant's residence was named the “primary residence ... for school purposes.” The parties were both Michigan residents at the time. The consent judgment specified weekly parenting time for plaintiff, including alternate weekends, midweek overnights, and some holidays. The consent judgment further provided that “neither party may permanently move the minor child of the parties from the State of Michigan without the prior written consent and approval of the other party or without first obtaining the approval of the Court....”
On February 5, 2014, defendant filed a motion to change the child's domicile to Florida. Defendant emphasized that she had sole legal custody and provided the child's primary residence. Defendant also argued that plaintiff had “an extensive criminal history including felony convictions, as well as assaultive behavior toward [defendant], some of his children and previous girlfriends.” Defendant claimed that she was the child's primary caregiver and had been offered more secure employment in Florida as a sonographer, which would pay her $75,000, annually ($31,000 more than she made in her present position in Michigan). Defendant stated that she had located suitable schooling for the child and that she would continue to encourage a relationship between plaintiff and the child. Defendant argued that because she was the sole legal custodian, it was unnecessary to analyze the best interests factors set forth in MCL 722.31(4).
On February 11, 2014, plaintiff filed a response to defendant's motion, arguing that there was an established custodial environment with both parties and that defendant had not shown proper cause or a change in circumstances warranting a change to the established custodial environment. On that same day, plaintiff filed a motion for joint legal custody.
On February 12, 2014, the trial court held a hearing on defendant's motion to change domicile. The trial court noted that there was an open investigation by Child Protective Services (CPS) concerning conduct by defendant's husband and stated its intent to withhold ruling on defendant's motion until the investigation was completed.1 The trial court asked for argument, however, on the state of the law as it related to a party with sole legal custody seeking to change domicile. Plaintiff argued that defendant sought to change an established custodial environment and, therefore, that a best interests hearing was required. Plaintiff cited as support Brown v. Loveman, 260 Mich.App. 576, 680 N.W.2d 432 (2004). The trial court stated its inclination to rule that defendant's sole legal custody would allow defendant to change the child's domicile without such detailed inquiry.
On February 19, 2014, plaintiff filed a motion for extended parenting time and joint legal custody. He again argued that there was an established custodial environment with both parties. Plaintiff contended that it was in the child's best interests to grant him joint legal custody or, at least, extended parenting time. Defendant filed a response to plaintiff's motion, arguing, in part, that it was frivolous and seeking attorney fees incurred in responding.
On February 26, 2014, the trial court held a second hearing on defendant's motion to change domicile. The CPS investigation into defendant's husband had been completed with the allegations being unsubstantiated. The trial court stated that it had reviewed defendant's motion to change domicile as well as plaintiff's motion to change custody and parenting time and had closely reviewed the case file. The trial court took testimony from defendant regarding the new job that she intended to take in Florida and her increased salary and job stability. The trial court stated that it found defendant's testimony credible and ruled: “it's appropriate in light of the fact that [defendant] has sole legal custody for the Court to allow this move, to give her permission to do that.” The trial court also denied plaintiff's motions regarding parenting time and joint legal custody and referred the issue of parenting time to the Friend of the Court for analysis and a recommendation. The trial court stated its belief that plaintiff was “playing games” in connection with his filing of his motions and ordered plaintiff to pay defendant $1,000 in attorney fees. The trial court denied plaintiff's subsequent motion for reconsideration.
On April 9, 2014, the Friend of the Court issued its parenting time recommendation. It recommended, in light of defendant's planned move to Florida, that plaintiff be granted the following parenting time:
On April 30, 2014, defendant filed objections to the Friend of the Court recommendation, arguing that the parenting time provided to plaintiff was excessive. Plaintiff filed a response to defendant's objections and included a request for attorney fees and costs, claiming that he was unable to afford the costs and attorney fees incurred in responding to defendant's objections.
On May 15, 2014, plaintiff filed a motion for entry of the Friend of the Court recommendation, with the modification that he be granted parenting time for full summers. Plaintiff included argument that defendant was not complying with prior parenting time requirements.
On June 6, 2014, the trial court entered a parenting time order without holding a hearing. The trial court adopted the Friend of the Court recommendation, with modification. It ordered that the recommendation in ¶ 5 be revised to state: “In odd years, [plaintiff] would have the child from December 27 until the day before school begins.” The trial court struck the recommendation in ¶ 7 regarding parenting time if plaintiff traveled to Florida. Plaintiff filed a motion for reconsideration, which the trial court denied. The trial court also stated that it was denying plaintiff's request for attorney fees related to entry of the parenting time order.
Plaintiff filed the present appeals and, on August 19, 2014, a panel of this Court entered an order of consolidation. Sulaica v. Rometty, unpublished order of the Court of Appeals, entered August 19, 2014 (Docket Nos. 321275 and 322760).
As an initial matter, we address and reject defendant's contention that this Court lacks jurisdiction over these appeals with regard to the orders addressing custody and change of domicile.2 Defendant argues in both appeals that the orders appealed from are not final orders that are appealable as of right.
“Whether this Court has jurisdiction to hear an appeal is an issue that we review de novo.” Rains v. Rains, 301 Mich.App. 313, 320, 836 N.W.2d 709 (2013) (citation and quotation marks omitted). This Court “has jurisdiction of an appeal of right filed by an aggrieved party from ... [a] final judgment or final order of the circuit court....” MCR 7.203(A)(1). In a domestic relations action, “final judgment” or “final order” means “a postjudgment order affecting the custody of a minor[.]” MCR 7.202(6) (a)(iii). An order need not change custody to be a final order. Indeed, this Court has held that the term “affects” as it is used in regard to child custody orders includes a broad class of orders. Wardell v. Hincka, 297 Mich.App. 127, 132–133, 822 N.W.2d 278 (2012) (). In Wardell, we held that an order denying a motion for a...
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