Wallace v. Colwell

• Decision Date: 13 October 2022
• Docket Number: 360255
• Parties: SHANNON ELAINE WALLACE, formerly known as SHANNON ELAINE COLWELL, Plaintiff-Appellant, v. SHANE MONDAY COLWELL, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

SHANNON ELAINE WALLACE, formerly known as SHANNON ELAINE COLWELL, Plaintiff-Appellant,
v.
SHANE MONDAY COLWELL, Defendant-Appellee.

No. 360255

Court of Appeals of Michigan

October 13, 2022

UNPUBLISHED

Oakland Circuit Court Family Division LC No. 2016-844766-DM

Before: Swartzle, P.J., and Cavanagh and Redford, JJ.

PER CURIAM

Plaintiff appeals as of right the lower court's order declining to modify its previous custody ruling, modifying the parties' parenting time, and denying plaintiff's request to change the children's schools. Finding no error requiring reversal, we affirm.

I. BACKGROUND

At the time of the parties' divorce in December 2016, they agreed to joint legal and physical custody of their two children, MC age 14 and AC age 12, with an unspecified parenting-time schedule that allowed the children equal time with each parent. The most recent custody order entered by consent in June 2019 established parenting time for defendant every other weekend and overnight on Thursdays on the weeks without weekend parenting time. The consent order also specified an equally divided holiday parenting-time schedule and provided each parent with two one-week blocks of uninterrupted parenting time each summer.

In January 2021, the children's guardian ad litem (GAL) issued a report and recommendation advising the trial court that defendant had uncovered a plan by plaintiff to move with the children from Rochester to New Baltimore where her fiancé lived which would result in a commute of approximately one hour each way between plaintiff's new residence and the children's schools in Rochester. The GAL recommended that the children remain in Rochester schools, that the parties return to an equal parenting-time schedule while plaintiff remained in Rochester, and that plaintiff's parenting time be reduced to alternating weekends during the school year in the event that she moved.

1

Plaintiff relocated with the children to her fiancé's home in mid-March 2021. During May 2021, she moved to transfer the children from Rochester schools to Anchor Bay schools in New Baltimore and to alter the parenting-time schedule in whatever manner necessary to implement that change. Defendant responded by moving to change custody and parenting time, arguing that plaintiff's unilateral decision to move the children an hour away constituted proper cause and a substantial change of circumstances. The trial court agreed that the long morning commute on school days satisfied the threshold burden for reconsidering custody. Plaintiff and her fiancé married in July 2021.

Following an evidentiary hearing, the court opined that an established custodial environment existed with both parents, such that clear and convincing evidence had to be presented in support of a custody modification. Concerning the statutory best-interest factors, MCL 722.23, the trial court found that factors (a) (love, affection, and emotional ties), (g) (mental and physical health), and (k) (domestic violence), equally credited both parents; while factor (j) (willingness and ability to facilitate child's relationship with other parent) did not favor either parent. The court interviewed each child separately in camera and took their statements into consideration under factor (i) (child's reasonable preference), but did not consider any other unenumerated considerations under factor (l) (any other factor). The remaining best-interest factors favored defendant.

The court provided a lengthy and detailed discussion of the best-interest factors. The court repeatedly addressed the repercussions of plaintiff's move. The court cited evidence regarding plaintiff's timeline of disclosing the move and possible school change, which involved revealing information to the children well before defendant. The court expressed concern regarding plaintiff's failure to appreciate how her actions left the children in a position of having to keep secrets from defendant, caused them uncertainty about their future schooling, and made MC, in particular, feel guilty for telling defendant the truth. The court opined that plaintiff's decision-making concerning the move gave almost no consideration to the children. The suddenness of the move resulted in the children having makeshift bedrooms without appropriate privacy in an unfamiliar home. Further, plaintiff seemed to offer conflicting views on the distance between Rochester and New Baltimore, sometimes characterizing it as an insignificant 20- to 30-minute drive when convenient to her position, and sometimes representing the distance as logistically unworkable for weekday parenting time and extracurricular activities to create sympathy for the children. The court observed that other actions by plaintiff reflected her failure to observe appropriate boundaries for her relationship with the children and a disinclination toward candor and healthy interactions with the children.

The court observed, defendant raised his concerns with plaintiff directly, instead of involving the children, and described appropriate disciplinary methods, guidance, and supervision. Defendant also had a greater willingness to take advice from professionals and he prioritized his role as a parent of the children over his desire to be their friend. The court determined that the children had more stability and permanence as a family unit with defendant in Rochester compared to plaintiff's recent move and integration of both her and her new husband's children into a single blended family.

The trial court also addressed the statutory parenting-time factors, MCL 722.27a(7), most of which were deemed irrelevant, duplicative of best-interest factors, or not relevant to the issues

2

raised on appeal. Relative to parenting-time factor (e) (inconvenience and burden of traveling for parenting time), the court again observed that the burden of traveling between the parties' homes was created by plaintiff's decision to prioritize her own needs, already negatively impacted the children, and would be likely to cause more difficulty over time. The court also determined under parenting-time factor (g) (whether a parent has frequently failed to exercise parenting time) that despite isolated instances of missed parenting time by defendant, his overall history did not reflect failure to exercise parenting time.

The court held that plaintiff failed to demonstrate that uprooting the children from the school district they had always known served their best interests. The court further held that both parties failed to present clear and convincing evidence to support modifying the parties' joint physical custody. However, it found that modification of the parenting-time schedule would serve the children's best interests. The court emphasized that it took care not to disturb the children's established custodial environments while simultaneously minimizing the unnecessarily excessive travel between Rochester and New Baltimore each day for school. To that end, the court granted plaintiff parenting time three weekends of each month, as well as nonovernight parenting time on Wednesday afternoons. The court granted defendant the balance of the parenting time during the school year. During summer break, the court ruled that parenting time be exercised on alternating weeks. The court did not alter the parties' previous holiday schedule.

II. STANDARDS OF REVIEW

"Under the Child Custody Act, MCL 722.21 et seq., '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.'" Pierron v Pierron, 486 Mich. 81, 85; 782 N.W.2d 480 (2010), quoting MCL 722.28. "Under this standard, a reviewing court should not substitute its judgment on questions of fact unless the factual determination clearly preponderates in the opposite direction." Id. (quotation marks, alteration, and citation omitted). When parents cannot agree on important decisions, the court must resolve the issue in the best interests of the child. Id. "A finding of fact is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction." Pennington v Pennington, 329 Mich.App. 562, 570; 944 N.W.2d 131 (2019).

III. ANALYSIS

A. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

Plaintiff first argues that the trial court erred by finding that defendant established proper cause and a change of circumstances permitting reconsideration of the parties' custody arrangement. We disagree.

Defendant contends that plaintiff waived review of this issue by agreeing in her own motion, at oral argument, and in a stipulated order that provided that the required threshold had been met. Plaintiff disagrees, reasoning that she contested defendant's motion and that stipulating to an order reflecting the court's oral ruling did not waive her right to appeal the underlying decision. "A waiver is an intentional relinquishment or abandonment of a known right." Nexteer Auto Corp v Mando America Corp, 314 Mich.App. 391, 395; 886 N.W.2d 906 (2016) (citation

3

omitted). "A stipulation is an agreement, admission or concession made by the parties in a legal action with regard to a matter related to the case." Id. (quotation marks and citation omitted). For a stipulation to constitute waiver, the language must "show an intent to plainly relinquish that right." Id. at 395-396 (citation omitted). If an issue has been waived below, this Court will not review it on appeal. LeFever v Matthews, 336 Mich.App. 651, 670 n 3; 971 N.W.2d 672 (2021).

We are unpersuaded that plaintiff waived review of this issue by asserting in her own motion that "an obvious change of circumstances" had arisen so as to require an evidentiary hearing. Plaintiffs motion did not contain a clear statement of the relief she sought. She clarified at oral...