A trial court correctly denied a father’s request to 1) change the parenting time schedule and 2) remove a right-of-first-refusal provision from the parties’ divorce judgment because the father did not meet his burden of proof, the Michigan Court of Appeals ruled in Kwek v Kwek.

In Kwek (Docket No. 343934), the defendant father argued that he met the parenting time modification requirements in Shade v Wright, 291 Mich App 17 (2010), because he showed the child was growing up, was engaging in extracurricular activities and had spent overnights with him on most Tuesdays for nearly nine months due to the plaintiff-mother’s work schedule. The defendant asserted the child had grown accustomed to staying with him every Tuesday night and that this warranted revisiting the parenting time schedule. He also asked the trial court to remove the right-of-first-refusal (RFR) provision in the parties’ divorce judgment, claiming the plaintiff was using it to harass him and it was disruptive to the child’s environment.

The Livingston County Circuit Court denied the defendant’s requests.

The Court of Appeals affirmed, finding the fact that the plaintiff offered the RFR for Tuesday overnights did not constitute a change of circumstances under Shade and, instead, merely maintained the status quo effectuated by the divorce judgment.

The Court of Appeals further said this case was distinguishable from Shade because there was “no discernible change in circumstances, other than minor progressions in a grade-school-aged child.”

Court of Appeals Judges Thomas C. Cameron, Jane M. Beckering and Amy Ronayne Krause were on the panel that issued the unpublished decision.

Background

In 2015, the parties entered into a consent judgment of divorce. They had one child together during their marriage. The judgment set forth the agreed-upon custody and parenting time schedule. Because both parties were nurses who worked 8-to-12-hour shifts, the judgment included an RFR provision.

In July 2017, the plaintiff filed a motion seeking various forms of relief. In particular, she claimed the defendant had violated the RFR by working overnight shifts during his parenting time with the child without offering her the RFR. In September 2017, the defendant filed a motion to modify parenting time and asked the trial court to remove the RFR from the divorce judgment.

A referee conducted an evidentiary hearing. Relevant to this appeal, the referee considered the defendant’s request as a motion to modify custody rather than parenting time, deeming it subject to analysis under Vodvarka v Grasmeyer, 259 Mich App 499 (2003). The referee found the defendant had not shown the proper cause or a change in circumstances under Vodvarka to warrant revisiting the custody order. The referee further found that, even if the defendant’s motion was considered under the lesser standard set forth in Shade for analyzing a motion to modify parenting time, the defendant still had not shown proper cause or a change in circumstances. According to the referee, the defendant’s bases for seeking modification – that 1) he had obtained extra parenting time on Tuesday nights resulting from the plaintiff’s offering and his exercise of the RFR; 2) the child was older; and 3) communication between the parties had diminished after plaintiff filed her July 2017 motion – did not establish proper cause or a change of circumstances under either Shade or Vodvarka. As a result, the referee recommended the trial court deny the defendant’s request to modify parenting time and the request to eliminate the RFR.

The defendant objected to the referee’s recommendations. At a hearing, the defendant asserted he had new evidence that had been unavailable at the time of the referee’s initial evidentiary hearing. The trial court permitted the defendant to supplement the record with the new evidence, which related to the defendant’s alleged violations of the RFR. After the supplemental hearing, the referee did not change the recommendations that were initially made.

The defendant again objected to the referee’s recommendations. After another hearing, the trial court issued an order expressly adopting the referee’s recommendations and denying the defendant’s requests to modify parenting time and remove the RFR. 

Parenting Time

On appeal, the defendant argued that he met Shade’s requirements for proper cause or changed circumstances to revisit the parenting time schedule because he showed the minor child was growing up, was engaging in extracurricular activities and had spent overnights with him on most Tuesdays for nearly nine months due to the plaintiff’s work schedule.

Specifically, the defendant asserted that modification of the parenting time schedule was in the child’s best interest because the child loved him and experienced stability with him, and because the proposed modifications would result in less “back and forth” for the child.

“We disagree,” the Court of Appeals held.

First, the fact that the plaintiff offered the defendant the RFR for numerous Tuesday overnights during a period of about nine months did not support the defendant’s position that there was a change of circumstances or proper cause, the Court of Appeals said. “The referee concluded that it would be improper to hold plaintiff’s compliance with a valid provision in the judgment of the divorce against her in an action to modify parenting time; to hold otherwise would penalize plaintiff, and other parents, for following the provisions of a judgment of divorce, and it would generally discourage parents from permitting any additional parenting time to the other parent outside the court’s orders.”

Similarly, the Court of Appeals said that following the RFR did not constitute a change of circumstances or proper cause under Shade and, instead, “merely maintained the status quo effectuated by the consent judgment of divorce.”

In addition, the Court of Appeals explained the defendant’s situation differed from Shade because the child’s “growing up” in this case meant progressing from kindergarten to second grade. “In Shade, the parties lived in different states, which required extensive travel to accommodate the exercise of parenting time. … Analogous factors are missing from the present case. Here, there has been no discernible change in circumstances, other than minor progressions in a grade-school-aged child. There is no evidence that the existing parenting-time schedule to which defendant agreed at the time of his divorce is no longer in the best interests of the child or has in any way affected defendant’s strong relationship with the child. … Thus, because proper cause or a change of circumstances is not precisely defined in a parenting-time situation, and because the changes in the child’s age and activities in this instance are so minor, we conclude that the trial court’s finding that defendant failed to meet the Shade standard was not against the great weight of the evidence.”

According to the Court of Appeals, the record indicated that both parties adequately managed their work schedules. “Despite inconsistent scheduling, each party is able to request what hours they would like to work and, in instances where their shifts fall onto parenting time days, arrange for appropriate substitute childcare. For all of these reasons, we conclude that defendant has not met his burden under Shade to prove proper cause or a change in circumstances sufficient to modify parenting time and the trial court did not err by denying his motion.”

RFR Removal

The defendant also argued on appeal that the trial court wrongly denied his request to remove the RFR from the divorce judgment. In particular, he claimed the plaintiff had used the RFR to harass him, that its existence caused a breakdown in the parties’ communication and ability to co-parent, and the cost of litigating the RFR had risen so much that it was no longer in the child’s interests.

“We disagree,” the Court of Appeals stated, noting the “mere existence of the RFR” did not necessarily seem to be a source of contention between the parties. Rather, the panel said, the source of contention appeared to be the plaintiff’s attempt to enforce the defendant’s compliance with the RFR provision.

“Defendant testified that communication between him and plaintiff had been ‘great’ for the first two years after entry of the judgment of divorce,” the Court of Appeals pointed out. “The record shows that, because of her work schedule, plaintiff offered, and defendant exercised, the RFR on Tuesday nights for nearly nine months in 2017. Thus, the RFR appears to have worked as intended, namely, to ensure that if one of the parents is away from the child either overnight or for an extended period of time, e.g., a 12-hour work shift, the child will still receive childcare from a parent.”

Meanwhile, the defendant claimed the parties’ communications soured after the plaintiff filed her July 2017 motion, which was partly based on her belief that the defendant was not complying with the RFR. “As it turned out, the referee concluded that she was correct,” the Court of Appeals said. “The referee found that defendant had violated the RFR on numerous occasions, and defendant does not dispute this finding on appeal.”

Yet the defendant testified that even after the plaintiff filed her motion, the parties were able to exchange the child without issue and adequately communicate essential information about the child, the Court of Appeals observed. “Thus, defendant failed to show that any diminishment in the parties’ communication quality and ability to co-parent outweighed the provision’s benefit to the child or necessitated the court’s intervention.”

In conclusion, the Court of Appeals rejected the defendant’s claim that the RFR should be removed from the divorce judgment because litigation over its enforcement was resulting in increased legal expenses. “Doing away with the provision would indeed do away with related litigation costs, but so would compliance with the provision, and compliance would maintain the RFR’s intended benefits to the child. In short, defendant has not ‘demonstrate[d] proper cause or a change of circumstances that would justify a trial court’s determination that the [RFR] condition in its current form no longer serves the child’s best interests.’”