In this custody and parenting time case, the trial court did not err when it modified the mother’s parenting time, found that a change in circumstances had occurred and held there was clear and convincing evidence that a change in custody was in the child’s best interests, the Michigan Court of Appeals has ruled.

Any errors the trial court may have made were “harmless,” the Court of Appeals said in Mansfield v Mansfield  (Docket No. 347408).

The plaintiff-mother in Mansfield presented several arguments on appeal, including:

• The trial court improperly held a full custody hearing in January 2019 before determining whether the defendant-father had established proper cause or a change in circumstances to require a review of the parties’ custody and parenting time order.

• The trial court erred by referring a custody evaluation to the Friend of the Court for a hearing before a referee, rather than conducting the hearing itself.

• While this appeal was pending, the trial court conducted a hearing and found another proper cause or change of circumstances without the jurisdiction to engage in any such analysis.

The Court of Appeals disagreed with the plaintiff’s arguments and affirmed the trial court’s decision.

“The trial court’s January [2019] order effectively changed [the child’s] custody,” the Court of Appeals wrote. “Therefore, had the trial court not reconsidered its best interests findings, we would have been constrained to vacate its order and remand for further consideration. However, although unusual, the trial court’s permissible reconsideration of its best interests findings in July [2019] rendered the change in custody proper. We find no other errors that resulted in any prejudice or other basis for disturbing the trial court’s orders.”

Judges Michael F. Gadola, Jane E. Markey and Amy Ronayne Krause were on the appellate panel that issued the unpublished opinion.

Facts

The parties were divorced and had two children, AAM and MCM, during their marriage. The divorce judgment, entered by the Ionia County Circuit Court, awarded joint legal custody of the children to both parties and primary physical custody to the plaintiff.

The defendant, who served in the military, accepted a job in Virginia in 2013. He returned to Michigan in 2016 and filed a motion for parenting time, which the trial court granted. (Note: AAM turned 18 during the proceedings and is no longer within the trial court’s jurisdiction.)

In February 2018, the defendant filed a motion for change of custody, asserting the children were unhappy in the plaintiff’s home and that she was under a Child Protective Services (CPS) investigation based on a report he had filed. After conducting a hearing, a referee found the defendant had shown a change in circumstances to warrant a full custody review. The referee also determined that an established custodial environment existed with the plaintiff and the defendant did not show, by clear and convincing evidence, that a change of custody was in MCM’s best interests. The defendant requested that the trial court review the referee’s findings.

The trial court conducted a review in January 2019. The trial court found that a change in circumstances had occurred and the established custodial environment was with the plaintiff. The trial court examined the best interest factors in MCL 722.23, finding serious concerns on both sides and ruling that some factors favored the plaintiff, while others favored the defendant. According to the trial court, the concerns with both parties precluded a finding that a change in custody would be in MCM’s best interests. After conducting an in camera interview with MCM, the trial court ordered that the parties continue joint legal custody and the plaintiff retain physical custody. The trial court also 1) ordered the parties to engage in family therapy, 2) reserved its right to review the parties’ compliance with the order and 3) held that a second interview would be held with MCM in May 2019.

The plaintiff filed the instant appeal in late January 2019, after the trial court issued its order.

While the appeal was pending, the trial court held a hearing on July 23, 2019, following its second in camera interview with MCM. The trial court had received a report from a counselor who had worked with the parties and the children, and the parties had agreed to admit portions of the report into evidence. The parties and the guardian ad litem (GAL) presented arguments at the hearing. The trial court reiterated its earlier findings that MCM had an established custodial environment with the plaintiff and that a change in circumstances had occurred. In addition, the trial court revisited its best interests findings, reaffirming several of them but also finding that: 1) several factors which had previously been neutral or slightly in favor of the plaintiff now favored the defendant and 2) two factors that had previously favored one of the parties were now closer to neutral. While the trial court said it had been unable to find “in good conscience” in January 2019 that a change in custody was clearly in MCM’s best interests, it now said that a change in custody was convincingly in MCM’s best interests. Accordingly, the trial court held that co-parenting should be discontinued and ordered that the parties maintain joint legal custody and that the defendant have physical custody “effective immediately.” The trial court ruled that a revised parenting time schedule would go into effect August 19, 2019.

The plaintiff, who had already appealed the January 2019 trial court order, filed a motion to stay the trial court’s July 2019 order.

Events While Appeal Pending

The Court of Appeals first addressed the plaintiff’s claim that the trial court abused its discretion by ordering the second in camera interview with MCM while the appeal was pending.

“We disagree,” the Court of Appeals wrote. “The record supports the trial court’s concerns with both parents and the effects upon MCM. It is clear from the transcript that the trial court wished to ensure that MCM’s expressed preference at the first interview would remain consistent. In other words, the trial court allowed for the possibility that MCM might change her mind about wishing to reside with defendant, which could only work to the potential benefit of plaintiff. We do not understand how the trial court’s decision harmed plaintiff, and in any event, the trial court’s concern for MCM’s interests is precisely the purpose of the child custody act. … We find no error in the trial court’s revisitation of its earlier factual findings.”

The Court of Appeals also found no error in the trial court’s consideration of “up-to-date evidence,” including the counselor’s report and the second interview with MCM. “The trial court … purported to change its order regarding MCM’s parenting time. Notwithstanding the general principle that trial courts may not modify orders that are pending on appeal, … several exceptions exist. The parties apparently agreed to the trial court’s modification of its order regarding MCM’s band camp attendance. An agreement by the parties is an exception to the general prohibition against altering an order pending on appeal. … [T]he trial court had already properly found a change of circumstances, and its purported change to its order was based on MCM’s best interests. Nevertheless, any changes the trial court made have not yet gone into effect or had any practical consequences. Therefore, even if the trial court erred by purporting to modify its order, any such error was harmless and is not grounds for reversal or vacation.”

Change In Circumstances

The plaintiff further argued that the trial court erred by conducting a full custody hearing before determining whether the defendant had established proper cause or a change in circumstances to require a review of the 2016 custody and parenting time order.

“We disagree,” the Court of Appeals said. “Either proper cause or a change of circumstances must be both significant and determined by reference to the statutory ‘best interest’ factors enumerated in MCL 722.23. … After proper cause or a change of circumstances has been demonstrated, ‘the trial court can then engage in a reevaluation of the statutory best interest factors.’ … We agree with plaintiff that defendant’s ‘Motion for Change in Custody’ sought to change the children’s established custodial environment to either exist with both parties or with him exclusively. As a result, defendant was required to establish proper cause or a change of circumstances pursuant to Vodvarka [v Grasmeyer, 259 Mich App 499 (2003)].”

Regarding the plaintiff’s assertion that the trial court erred by referring the custody evaluation to the Friend of the Court for a hearing before a referee instead of conducting the hearing itself, the Court of Appeals said this issue was unpreserved on appeal. “In any event,” the Court of Appeals noted, “plaintiff misunderstands what occurred. The trial court must make its own findings regarding the threshold determination of proper cause or change of circumstances before referring a matter to the Friend of the Court to conduct an ‘investigation.’” Citing Bowling v McCarrick, 318 Mich App 568 (2016), the Court of Appeals pointed out that Bowling involved a “conciliator’s report” and that no record was made of the proceedings that culminated in the report. “A hearing on the record before a referee is entirely different,” the panel wrote. “Unlike ‘conciliators,’ referees are explicitly charged with fact-finding in domestic relations matters, MCL 552.507(1)-(2), all referee hearings must be recorded, MCR 3.215(D)(4), and any party is entitled to a de novo review by the trial court, MCR 3.215(E)(4), MCL 552.507(4). Trial courts are expressly authorized to delegate an initial fact-finding hearing to the referee, as long as they do not preclude the parties from presenting ‘live evidence at the judicial hearing.’ MCR 3.215(F)(2). The hearing held before the referee here is simply not just another name for an ‘investigation’ under MCL 552.505(1)(g). Furthermore, the trial court is not necessarily required to hold a separate hearing before revisiting a custody decision.”

Moreover, the Court of Appeals observed that the plaintiff seemed to argue that, at the July 2019 hearing, the trial court improperly found another proper cause or change of circumstances without the jurisdiction to engage in any such analysis. “If this is indeed plaintiff’s contention, we disagree,” the panel wrote. “It is obvious from the face of the transcript that the trial court merely referenced and reiterated its earlier finding. The trial court revisited its best interests findings only, not its earlier determinations that an established custodial environment existed with plaintiff and that a change of circumstances had occurred. As discussed, those findings were not erroneous.” 

Best Interest Analysis

Next, the Court of Appeals explained that because the trial court correctly found a change of circumstances, it properly addressed whether a change in custody was in MCM’s best interests.

 “At the July [2019] hearing, the trial court reviewed additional evidence from its second in camera interview with MCM and from a psychological report prepared by the counselor,” the Court of Appeals said. “The trial court then reconsidered some of its best interests findings, and it concluded that changing custody was in MCM’s best interests.”

However, the Court of Appeals also noted that it was “extremely concerned” with the trial court’s order after the initial conclusion that changing custody had not been established to be in MCM’s best interests. “The trial court described its order as a mere change in parenting time. However, the label applied to an action is not dispositive. … The bench and bar unfortunately lacks any real guidance from our Legislature or Supreme Court for determining when a permissible change in parenting time crosses the threshold into an impermissible change in custody in disguise. Nevertheless, we are persuaded that the threshold was crossed here. The effect of the trial court’s order was to reduce plaintiff from MCM’s primary caregiver to a weekend parent in the summer. The new arrangement would constitute a change in the established custodial environment. … Because the trial court determined that the established custodial environment existed with plaintiff, it erred by changing that established custodial environment without finding clear and convincing evidence that the change was in the child’s best interests.”

Despite presenting this concern, the Court of Appeals declined to alter the trial court’s order. “An error that ultimately does ‘not affect the outcome of the proceeding’ is harmless and cannot be a basis for reversal. … The trial court permissibly reconsidered its best interests findings and concluded that the evidence does clearly and convincingly establish that a change of custody was in MCM’s best interests. … [W]e look to substance rather than formalities or labels. The trial court was empowered to reconsider its factual determinations, and its reconsidered conclusion permitted the change of custody it had already effectuated. The trial court’s unusual procedure makes our review more difficult, but it was ultimately harmless. Because … it properly found the change of custody in MCM’s best interests, its order effectively changing … custody was proper.”

Regarding the statutory best interests findings, the Court of Appeals reviewed the trial court’s analysis of each factor and concluded there was no error in the final, updated findings at the July 2019 hearing. “Consequently, we disagree with plaintiff’s contention that the trial court erred in any of its specific best interests findings or in its ultimate conclusion that a change in custody had been shown by clear and convincing evidence to be in MCM’s best interests.”