Wardell v. Hincka

• Decision Date: 21 June 2012
• Docket Number: Docket No. 308243.
• Citation: 822 N.W.2d 278,297 Mich.App. 127
• Parties: WARDELL v. HINCKA.
• Court: Court of Appeal of Michigan — District of US

297 Mich.App. 127

822 N.W.2d 278

WARDELL

v.HINCKA.

Docket No. 308243.

Court of Appeals of Michigan.

Submitted June 12, 2012, at Lansing.

Decided June 21, 2012, at 9:00 a.m.

Denise M. Burke, Alpena, for Kristine Lee Wardell.

Patrick, Kwiatkowski & Hesselink, PLLC, Cheboygan (by Joseph P. Kwiatkowski), for Joshua T. Hincka.

Before: BECKERING, P.J., and FITZGERALD and STEPHENS, JJ.

PER CURIAM.

Defendant, Joshua Thomas Hincka, appeals by right an order denying his motion for a change of custody. We affirm.

I. FACTS

Defendant and plaintiff, Kristine Lee Wardell, were married on December 31, 2007, and divorced on January 5, 2010. Their consent judgment provided for joint legal and physical custody of their daughter, who was born on July 11, 2006. On October 29, 2010, the trial court entered the parties' most recent parenting order, which gave both parties joint legal and physical custody, specified a week-on, week-off parenting-time schedule, and specified that the child would attend school in Posen, Michigan, which was between plaintiff's home in Alpena and defendant's home in Rogers City.

In April 2011, defendant moved to Cheboygan. He filed a motion for a change of custody, citing a change in circumstances brought about by his move and his discovery that plaintiff's husband had a criminal record. The trial court found sufficient evidence of a change in circumstances and referred the case to the Friend of the Court. Plaintiff filed a countermotion for a change of custody. The Friend of the Court recommended that primary physical custody be granted to plaintiff, with plaintiff and defendant having joint legal custody.

The trial court then conducted a trial. Defendant testified that he had part-time employment and was engaged to and living with Melody Rocco. He testified that he, Rocco, and Rocco's two daughters lived in a three-bedroom home. He further testified that the child had a wonderful relationship with Rocco's youngest daughter, who was the same age. He claimed that he had an excellent and affectionate relationship with the child, that the two engaged in various activities together, and that he was very engaged in her education. Defendant further testified that plaintiff would not answer the phone, return his calls, or permit him to speak with the child when the child was in plaintiff's custody.

Plaintiff testified that both she and defendant had an excellent relationship with the child. She testified that the child typically had her own room but did not always choose to sleep there. She acknowledged that even though her husband's driver's license had been revoked in 2006 he had driven the child around in the past, but claimed that they had discontinued the practice. She denied drinking around the child and testified that she was currently attending school full-time. She was concerned that defendant would prevent her from seeing the child if he were awarded custody.

On December 30, 2011, the trial court issued an opinion and order denying the parties' respective motions to change custody. It noted that the current custody arrangement appeared to be working, found that the best-interest factors weighed equally in favor of the parties, and found that the only change in circumstances was defendant's move to Cheboygan. While the trial court acknowledged that a 70–minute commute was not ideal, it concluded that it was not “so burdensome to the child as to justify disruption of the most recent parenting time order,” which “gives [the child] maximum exposure to both parents” and “allows bonding with siblings as well as her soon-to-be step-siblings.”

II. JURISDICTION

Plaintiff contends that this Court should dismiss defendant's claim of appeal for lack of jurisdiction because the trial court's December 30, 2011, opinion and order is not a final order under MCR 7.202(6) (a). We disagree.

Whether this Court has jurisdiction to hear an appeal is an issue that we review de novo. Wickings v. Arctic Enterprises, Inc., 244 Mich.App. 125, 132–133, 624 N.W.2d 197 (2000). MCR 7.203(A)(1) provides that this Court has jurisdiction of an appeal of right from “[a] final judgment or final order of the circuit court ... as defined in MCR 7.202(6)....” Under MCR 7.202(6)(a)(iii), a “final order” includes, “in a domestic relations action, a postjudgment order affecting the custody of a minor.” Resolution of this jurisdictional question, therefore, turns on whether the trial court's December 30, 2011, postjudgment order was an order “affecting the custody of a minor.” See MCR 7.202(6)(a)(iii).

Although not addressing the issue in the context of a jurisdictional challenge, this Court has stated that a trial court's order denying a petition for a change of custody is “an order affecting custody.” Rivette v. Rose–Molina, 278 Mich.App. 327, 328, 333, 750 N.W.2d 603 (2008). Indeed, this Court has in practice treated orders denying a motion for a change of custody as appealable by right. See, e.g., Corporan v. Henton, 282 Mich.App. 599, 600–603, 766 N.W.2d 903 (2009); Treutle v. Treutle, 197 Mich.App. 690, 691–692, 495 N.W.2d 836 (1992); Schubring v. Schubring, 190 Mich.App. 468, 469–470, 476 N.W.2d 434 (1991); Sedlar v. Sedlar, 165 Mich.App. 71, 72–74, 419 N.W.2d 18 (1987).

Furthermore, applying the principles of court-rule interpretation to MCR 7.202(6)(a)(iii), we conclude that the trial court's December 30, 2011, postjudgment order is an order “affecting the custody of a minor.” “Interpretation of a court rule is subject to the same basic principles which govern statutory interpretation.” St. George Greek Orthodox Church of Southgate, Mich. v. Laupmanis Assoc., P.C., 204 Mich.App. 278, 282, 514 N.W.2d 516 (1994). “The mission of a court engaged in statutory construction is to interpret and apply the statute in accordance with the intent of the drafter, which, in the first instance, must be determined from the plain meaning of the language used.” Mahrle v. Danke, 216 Mich.App. 343, 348, 549 N.W.2d 56 (1996). To ascertain the plain meaning of a term that is not defined by statute or court rule, as is the case here given that the court rules do not define “affecting,” this Court may consult a dictionary to determine the plain meaning of the term. Id. at 348–349, 549 N.W.2d 56;Vodvarka v. Grasmeyer, 259 Mich.App. 499, 510, 675 N.W.2d 847 (2003). When consulting a dictionary, this Court should be cognizant of the context in which the term is used. Vodvarka, 259 Mich.App. at 510, 675 N.W.2d 847.

Black's Law Dictionary defines “affect” as “[m]ost generally, to produce an effect on; to influence in some way.” Black's Law Dictionary (9th ed.), p. 65. In a custody dispute, one could argue, as plaintiff does, that if the trial court's order does not change custody, it does not produce an effect on custody and therefore is not appealable of right. However, one could also argue that when making determinations regarding the custody of a minor, a trial court's ruling necessarily has an effect on and influences where the child will live and, therefore, is one affecting the custody of a minor. Furthermore, the context in which the term is used supports the latter interpretation. MCR 7.202(6)(a)(iii) carves out as a final order among postjudgment orders in domestic relations actions those that affect the custody of a minor, not those that “change” the custody of a minor. As this Court's long history of treating orders denying motions to change custody as orders appealable by right demonstrates, a decision regarding the custody of a minor is of the utmost importance regardless of whether the decision changes the custody situation or keeps it as is. We interpret MCR 7.202(6)(a)(iii) as including orders wherein a motion to change custody has been denied.

Accordingly, this Court has jurisdiction over this appeal under MCR 7.203(A)(1) because the trial court's December 30, 2011, opinion and order is a final order under MCR 7.202(6)(a)(iii).¹

III. CHANGE OF CUSTODY

Defendant argues that the trial court abused its discretion by denying his motion for a change of custody because it ignored the great weight of the evidence at trial regarding the best-interest factors, which defendant argues was overwhelmingly in his favor. We do not agree.

Three standards of review apply to child custody cases. LaFleche v. Ybarra, 242 Mich.App. 692, 695, 619 N.W.2d 738 (2000). The great-weight-of-the-evidence standard applies to all findings of fact; under this standard, “the trial court's findings will be sustained unless the evidence clearly preponderates in the opposite direction.” Id. “An abuse of discretion standard applies to the trial court's discretionary rulings such as custody decisions.” Id. Finally, “[a] trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law.” Id. (citation and quotation marks omitted).

When an established custodial environment exists, a change in custody may be made only upon a showing by clear and convincing evidence that the change is in the child's best interests. MCL 722.27(1)(c). The child's best interests are evaluated under factors set forth in MCL 722.23:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical...