This custody and parenting-time case must be remanded because the trial court once again committed various errors in making its decisions, the Michigan Court of Appeals has ruled.

In 2022, the Court of Appeals remanded Sattler v Tarjeft to the Wayne County Circuit Court for further proceedings (Sattler I - Docket Nos. 358163 and 358164). On remand, the trial court:

• denied the plaintiff’s motion to modify custody, parenting time and child support for the parties’ oldest child, KT.

• ordered joint legal and physical custody of KT pursuant to a 2015 consent order.

• awarded joint legal and physical custody of the parties’ youngest child, CT.

• established a parenting-time schedule for both KT and CT.

• ordered that the parties’ children attend Gibraltar schools.

• awarded the defendant attorney fees and costs.

The plaintiff appealed the trial court’s orders (Sattler II – Docket Nos. 367461 and 367462). She argued the trial court:

• wrongly limited the scope of evidence that could be presented on remand and this evidentiary limitation violated her due process rights.

• erred by not conducting a hearing or properly evaluating which school district would serve the children’s best interests.

• improperly awarded the defendant attorney fees and costs.

The Court of Appeals agreed with the plaintiff in several respects.

“We affirm the portion of the trial court’s order denying plaintiff’s motion to modify KT’s custody and parenting time, but vacate the portions of the orders that (1) established CT’s custody and parenting time, (2) ordered the children to attend Gibraltar schools, and (3) awarded defendant attorney fees and costs,” the Court of Appeals said in Sattler II. “We again remand for further proceedings consistent with this opinion.”

Judge Michael F. Gadola, Judge Kirsten Frank Kelly and Judge Christopher M. Murray were on the panel that issued the 18-page unpublished opinion.

Background

In Sattler I, the plaintiff had filed a motion to enforce and modify the Wayne County trial court’s custody order as to KT. She had also filed an action to establish custody, parenting time and support for the parties’ second child, CT. After a four-day evidentiary hearing, the trial court granted the plaintiff’s motion and awarded her sole legal custody of both children. The trial court also awarded the plaintiff parenting time Sunday morning through Thursday morning during the school year, with the defendant exercising parenting time Thursday afternoon through Sunday morning. The defendant appealed.

The Court of Appeals in Sattler I vacated the trial court’s order and remanded for further proceedings. “The trial court order awarding plaintiff sole legal custody and parenting time in regard[] to KT is vacated because the trial court erred in determining that proper cause or change of circumstances existed to warrant review of the existing custody order,” the Court of Appeals wrote in Sattler I. “The trial court order in regard[] to CT is also vacated because plaintiff failed to meet her burden that her proposed custody arrangement was in CT’s best interests, and therefore, the trial court abused its discretion in awarding plaintiff sole legal custody and favorable parenting time. This matter is remanded to the trial court for further proceedings consistent with this opinion.” The plaintiff appealed this decision to the Michigan Supreme Court, which denied her application in May 2022.

On remand, the trial court “denied plaintiff’s motion to modify custody, parenting time and child support with respect to KT; awarded joint legal and physical custody of KT under the 2015 consent order; awarded joint legal and physical custody of CT; ordered parenting time consistent with the interim orders regarding parenting time; ordered that the children should attend Gibraltar schools; and awarded defendant his costs and attorney fees ….”

The plaintiff appealed (Sattler II).

Scope Of Evidence

The Court of Appeals in Sattler II first addressed the plaintiff’s argument that the trial court erred by limiting the scope of evidence that could be presented on remand.

“Although we disagree with plaintiff regarding custody and parenting time as it relates to KT, to the extent the trial court’s ruling extended to CT as well, we agree with plaintiff that the trial court’s error regarding CT requires appellate relief and remand for further proceedings,” the Court of Appeals stated.

In its analysis, the Court of Appeals noted the “overriding concern” of the Child Custody Act is to “advance the best interests of the children at issue in a custody dispute.” Further, the trial court “may only modify or amend a previous judgment or order ‘for proper cause shown or because of change of circumstances …,’” the appeals court said, citing MCL 722.27.

Looking at the evidence regarding KT, the Court of Appeals said the plaintiff’s assertion the trial court wrongly limited the scope of the evidence on remand “presuppose[d]” that she was entitled to a second opportunity to meet her threshold burden. “But Sattler I did not authorize or require further proceedings to expand the record concerning KT,” the appeals court said, pointing out the plaintiff’s reliance on Vodvarka v Grasmeyer, 259 Mich App 499 (2003), was “misplaced.” Vodvarka was distinguishable because the plaintiff “had a full opportunity to establish proper cause or a change in circumstances in 2021. … Vodvarka offers no guidance as to the scope of the proceedings on remand following an appellate determination that the moving party did not satisfy the threshold burden imposed by MCL 722.27(1)(c).”

Rather, the issue “is governed by the law-of-the-case doctrine, under which ‘the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same,’” the Court of Appeals explained. “[A]s a practical matter, because Sattler I vacated the 2021 order that modified KT’s custody and parenting time, KT’s custody and parenting time remained controlled by the last order establishing those matters - the 2015 consent order. Because plaintiff was not entitled to further litigate the question of proper cause or change in circumstances supporting her 2020 motion, the trial court did not err when it limited the scope of the hearing on remand.”

Next, the Court of Appeals reviewed the evidence regarding CT.

“The trial court’s written order reflecting the trial court’s evidentiary ruling limited the evidence for purposes of proper cause or change in circumstances to specific topics that it believed had not been addressed in the earlier 2021 proceedings and thereafter reviewed by this Court in Sattler I,” the Court of Appeals wrote. “It also stated that ‘all evidence submitted shall pertain to occurrences after the April 27, 2021 evidentiary hearing before the Court[.]’ However, no limitations were actually imposed on the evidence regarding CT, because the trial court resolved the proceedings on remand after plaintiff concluded her proofs relative to proper cause or change in circumstances to modify KT’s custody, without presentation of any evidence regarding CT. In doing so, the trial court committed clear legal error on a major issue.”

The trial court in this case awarded joint legal and physical custody of CT and established a parenting-time schedule “without compliance with basic requirements of the Child Custody Act, such as a redetermination of CT’s established custodial environment …,” the Court of Appeals said. “Consequently, we must vacate the trial court’s order in Docket No. 367462 and again remand for further proceedings.”

Moreover, “[i]n the interest of avoiding further unnecessary delay in establishing an initial custody order for CT, we will clarify the procedure on remand,” the Court of Appeals added. “The trial court must first consider whether and with whom CT currently has an established custodial environment. … This issue will necessarily require the trial court to consider up-to-date information, as the pertinent facts may have changed since evidence was presented on that issue in 2021. … Once the trial court determines CT’s established custodial environment, it must determine whether plaintiff’s proposed custodial arrangement and parenting time would alter that environment. … Lastly, with the appropriate evidentiary burden in mind, the court must evaluate the factors outlined in MCL 722.23 to determine CT’s best interests.”

Due Process

The Court of Appeals then addressed the plaintiff’s argument that the trial court’s evidentiary limitation violated her right to due process.

“We disagree,” the Court of Appeals said. “To the extent plaintiff had compiled very little evidence that would fall within the appropriate scope of the remand, … plaintiff’s lack of preparation does not establish a due-process violation.”

Meanwhile, “[e]ven if we believed that the trial court’s last-minute ruling had constitutional implications, any error that occurred was harmless,” the Court of Appeals stated. “As already stated, plaintiff was not entitled to further litigate the question of proper cause or change in circumstances to modify KT’s custody on remand after we determined in Sattler I that plaintiff did not meet her burden concerning that issue. Thus, any improper limits imposed on a hearing to which plaintiff had no entitlement were harmless. And assuming the trial court intended to limit the evidence concerning CT in the same manner, that decision had no effect on the outcome because the trial court erroneously ruled on CT’s custody and parenting time without any updated evidence or findings required by the Child Custody Act. As a result of that error, no temporal limitations were actually applied to the evidence regarding CT, thereby rendering any error harmless as to CT as well.”

Choice Of Schools

Next, the plaintiff claimed the trial court erred by not conducting a hearing pursuant to Lombardo v Lombardo, 202 Mich App 151 (1993) (“Lombardo hearing”) or properly evaluating which school district would serve the children’s best interests.

“We agree,” the Court of Appeals said.

According to the Court of Appeals, the trial court agreed the 2015 order was controlling after Sattler I “but was unwilling to order KT to change schools with only approximately two months remaining in the school year. Opining that it would be best for the children to remain together, the court ordered that the 2015 order would be applied to CT as well. In the written order reflecting its decision, the trial court expressly directed the children to complete the 2022-2023 school year in Huron and thereafter return to Gibraltar schools in accordance with the 2015 consent order. At a later review hearing, plaintiff asked the trial court to schedule ‘trial’ on an expedited matter to ensure that the dispute regarding the children’s school could be resolved before the beginning of the 2023-2024 school year, and the trial court agreed to schedule the case for hearing in August 2023.”

Thereafter, “in the discussions regarding the scope of the evidentiary hearing and permissible evidence, the parties and trial court continued to address matters concerning which school the children should attend,” the Court of Appeals observed. “Plaintiff specifically asserted that ‘if the parents have a dispute on what school children should attend, … they are entitled to have a Lombardo hearing on that, which is exactly what we need to have at this time.’ Later, in her opening statement, plaintiff reminded the court that the hearing was being held to address her ‘motion for change of custody, parenting time, and selection of schools for the minor children ….’”

Upon reviewing the record, “we … conclude the trial court was required to resolve the choice-of-schools dispute in accordance with established law regarding resolution of important decisions affecting a child’s welfare,” the Court of Appeals said. “The evidentiary hearing held on remand was limited to an inquiry regarding proper cause or a change in circumstances to modify KT’s custody, and the trial court’s findings related to that issue only. The trial court’s decision did not reach any of the matters that govern a choice-of-schools dispute, such as the children’s established custodial environments, whether a change in the children’s school would alter those environments, and analysis of the relevant best-interest factors. …Therefore, the trial court clearly erred when it ordered the children to attend Gibraltar schools.”

Attorney Fees

Lastly, the plaintiff argued the trial court abused its discretion by awarding the defendant attorney fees and costs.

“We agree,” the Court of Appeals said.

The defendant had requested attorney fees under MCR 3.206(D) and MCL 600.2591. He asserted that attorney fees were proper because the plaintiff’s continued pursuit of the same issues caused him to incur “substantial attorney fees, while all plaintiff’s living expenses and attorney fees were paid by her significant other.” The defendant claimed the plaintiff’s litigation strategy “was repetitive and frivolous in light of this Court’s decision in Sattler I and the [Michigan] Supreme Court’s denial of plaintiff’s application for leave to appeal from Sattler I.”

According to the Court of Appeals, Reed v Reed, 265 Mich App 131 (2005), “demonstrates … that an award of attorney fees that is unsupported by necessary factual findings necessarily constitutes an abuse of discretion. Because the trial court in this case likewise failed to make factual findings that would support an award of attorney fees under the court rule or statute cited by defendant, its award of attorney fees was outside the range of reasonable and principled outcomes, and we vacate the award.”

In conclusion, the Court of Appeals affirmed that portion of the trial court’s order denying the plaintiff’s motion to modify KT’s custody and parenting time. The Court of Appeals also vacated those portions of the trial court’s order that: 1) established CT’s custody and parenting time, 2) ordered the children to attend Gibraltar schools and 3) awarded the defendant attorney fees and costs. “We again remand for further proceedings consistent with this opinion.”