Vodvarka v. Grasmeyer

• Decision Date: 02 December 2003
• Docket Number: Docket No. 248058.
• Parties: Toni Marie VODVARKA, Plaintiff-Appellee, v. Ronald Lee GRASMEYER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

675 N.W.2d 847

259 Mich. App. 499

Toni Marie VODVARKA, Plaintiff-Appellee, v. Ronald Lee GRASMEYER, Defendant-Appellant.

Docket No. 248058.

Court of Appeals of Michigan.

Submitted October 8, 2003, at Grand Rapids.

Decided December 2, 2003, at 9:00 a.m.

Released for Publication February 19, 2004.

Michael S. Murphy, P.C. (by Michael S. Murphy), Scottville, for the plaintiff.

Jeffrey C. Nellis, Ludington, for the defendant.

Before: GRIFFIN, P.J., and NEFF and MURRAY, JJ.

MURRAY, J.

In this paternity action, defendant appeals as of right from the April 10, 2003, custody order denying his petition for custody. The issues presented in this appeal are (1) in determining whether there was proper cause or a change of circumstances sufficient to review an order of custody, whether the trial court must limit its review to the events occurring between the date of the custody order and the date the motion for custody was filed, and (2) whether the trial court properly determined that defendant had not established proper cause sufficient to review the custody order. We hold that in determining if a change of circumstances had occurred, the trial court was limited to basing its decision on events occurring after entry of the most recent custody order. We further hold that, in determining the existence of proper cause, the court should generally limit its consideration to events occurring after entry of the most recent custody order but, as this case shows, there will be unusual cases where that rule is not applicable. Finally, we hold that defendant produced sufficient evidence establishing proper cause to hold a child custody hearing. Therefore, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

I. Material Facts And Proceedings

The material facts of this case are not in dispute. Plaintiff and defendant met one night in December 2001, or January 2002, and conceived the minor child at issue. The parties have not had any further relationship between that one night and the time of the relevant proceedings in the trial court. On October 22, 2002, plaintiff¹ filed a paternity complaint against defendant, alleging that defendant was the father of the child and requesting that a judgment of filiation be entered establishing the paternity of the child. Defendant was personally served with the summons and complaint on that same day, and on November 4, 2002, the court entered an order for genetic testing.

On December 5, 2002, after the genetic testing confirmed that defendant was the father of the child,² defendant signed a "Paternity Acknowledgment" admitting that he received a copy of the complaint, that he was aware of its contents, and that he was the father of the minor child.³ The next day, December 6, 2002, the prosecutor submitted to the trial court a proposed order for support and expenses. The proposed order was signed only by the prosecutor, and was entered by the court without a hearing on December 6, 2002. That order established defendant as the father, ordered him to pay certain confinement costs, awarded plaintiff custody of the child, and gave defendant unspecified "reasonable visitation."

Immediately upon entry of the custody order, defendant filed his petition for custody,⁴ wherein defendant challenged the award of custody to plaintiff, asserting that it would be in the child's best interest for defendant to have custody of the child because he was gainfully employed, plaintiff had been harassing defendant and had assaulted him, plaintiff had previously engaged in similar behavior that resulted in her losing custody of two of her other children, and plaintiff was not cooperating with defendant during his attempts to see the child. Defendant also asserted that no established custodial environment existed, given the child's young age.⁵

Plaintiff answered defendant's petition by asserting that neither party could offer the child a more stable living environment and that she did not have counsel in the proceedings that resulted in her losing custody of two of her other children, and by denying that she ever assaulted or harassed defendant. Plaintiff further alleged that she and the child had bonded and that the child (four months old at the time) knew no other physical environment.

In addition to filing an answer, plaintiff filed a motion to dismiss the petition for custody ten days later.⁶ The basis for the motion was that, although plaintiff had been convicted of third-degree child abuse in June 1997, defendant had nonetheless failed to establish either proper cause or a change of circumstances as required by MCL 722.27(1), a necessary prerequisite to reviewing a custody order.⁷

Defendant responded to the motion to dismiss by asserting that he did not have to establish proper cause or a change of circumstances because the custody order had been entered the day before he filed the petition, and it was the custody order that gave him standing to seek custody. Therefore, defendant argued, "the first possible date that [he] could have petitioned for custody was on December 6, 2002, and that is what he did." Defendant alternatively argued that proper cause to change custody did exist in light of plaintiff's "inappropriate behavior with respect to members of the public," the prior child protective proceedings involving plaintiff and her children, the two custody cases plaintiff had lost, and testimony showing that plaintiff continued to engage in behavior similar to that which led to her losing two of her children, i.e., abusive treatment.

As noted, plaintiff filed her brief in support of the motion to dismiss after defendant filed his response to the motion. In her brief, plaintiff argued that defendant was required to demonstrate that there was proper cause or a change of circumstances based on events occurring after the entry of the custody order and up to the filing of defendant's motion, which in this case was essentially one day. Plaintiff argued that an unpublished opinion of this Court compelled such a conclusion.⁸

Oral argument was held on plaintiff's motion to dismiss on March 19, 2003. After hearing the parties' respective arguments, the trial court granted plaintiff's motion, holding that defendant failed to establish either proper cause or a change of circumstances to warrant review of the custody order:

All right. It's the Court's understanding that in a paternity situation the Order of Paternity does recognize the legal standing of both parties.

And although it's being argued that it's boiler plate language, it is language of substance, i.e. it says who the father is, and it points out in virtually every Paternity Order I have seen it's the mother who has child custody.

And the fact that in virtually every paternity case that I have seen where the father does not acknowledge paternity, and we go through blood testing so he's understandably reassured he is the father, and then there's an acknowledgment, the Court has never seen a case where the mother doesn't start out with custody.

* * *

But again, we don't have that in this situation. What we have here is what we commonly refer to as a one-night-situation. And Defendant understandably wanted a blood test to make sure he is the father.

But the Paternity Order itself is of substance. And based upon the blood testing it says the mother has custody and it's Defendant that is the father.

Now, this matter that is being referred to today where there must be a change in circumstances or sufficient cause to change, that is rather recent, but it does not negate or void the concepts that I'm focusing on, i.e. in this type of paternity situation custody does start out with the mother.

And there has to be some showing along the way that she is not a fit mother in order to invoke a change of circumstances, or something else has to come up, she's not fit or something else which could be recognized as a legal change in circumstances.

And I'm simply not hearing that in this case. I do recognize, I do remember some of the earlier history. And there are times when Plaintiff has had her problems.

But I have also seen a plural number of cases that people who have had problems like Plaintiff managed to get on top of those problems and managed to improve and managed to do a better job subsequently.

And so what happens at this point is if Plaintiff, in fact, is benefiting [sic] from counseling and/or parenting classes and/or things that a person needs to do so that they can be a proper parent, the Paternity Order simply continues.

If it turns out that she's not successfully being a mother, for whatever reason the Court might be persuaded by, then Defendant might have a basis for initiating a Petition for Change of Custody.

At this point then the Court agrees with attorney Murphy [plaintiff's attorney] that there has not been a proper or sufficient basis for a hearing, nor has there been a sufficient change in circumstances since the Paternity Order was signed to allow this matter to go to a hearing.

And this again is consistent with why the more current requirements exist, that you have to have a Court review as to see whether there has been a change in circumstances even before you do a hearing.

Because otherwise it's too easy for parties to simply try to duke it out because one prefers to be the parent. And this current approach is intended to avoid just simply people going to Court because they prefer custody.

With that in mind and for the reasons that I have just shared, Mr. Murphy, your Motion to Dismiss is granted.

In a colloquy between the court and counsel after the ruling was announced, the trial court indicated that it was restricted to considering events occurring between the time the order was entered and the time the motion was filed, but that if something else had occurred since the motion was filed, the court would also consider that evidence. Additionally, the court noted that, as an ...