A defendant could not claim the mediation agreement he signed during his divorce proceedings was unenforceable based on perceived procedural mistakes when it was clear that he “simply regretted making the agreement,” the Michigan Court of Appeals has ruled.

In Rettig v Rettig (Docket No. 338614), the Court of Appeals reiterated something it has said in previous opinions: parties cannot claim that an otherwise valid mediation agreement is unenforceable just because they change their mind after signing it.

Here, the defendant had his attorney with him at the time he signed the mediation agreement, the Court of Appeals explained, noting the defendant “was aware of the provisions in the agreement that settled the disputes over parenting time and custody, shown by his signature.”

Accordingly, the Court of Appeals held the trial court properly entered the order effectuating the parties’ mediation agreement, and properly declined to grant the defendant’s motion for reconsideration, rehearing and relief from judgment. The published opinion was authored by Judge Amy Ronayne Krause, who was joined by Judge Jane E. Markey and Judge Joel P. Hoekstra.

Memorandum of Understanding

The plaintiff, Jamie Rettig, and the defendant, Jeffrey Rettig, were married for five months and during that time had one minor child together. The plaintiff also had another child from a previous relationship.

During the parties’ divorce proceedings, the plaintiff presented concerns about the defendant’s alleged lack of caretaking interest or ability, alleged abuse of drugs and alcohol, and alleged violent threats or outbursts. The plaintiff sought full physical custody of their child with weekly supervised parenting time for the defendant. The defendant denied the allegations regarding his behavior and requested joint legal and physical custody. The Kent County Circuit Court entered a temporary order granting joint legal custody with plaintiff having sole physical custody, granting defendant parenting time of three times per week and ordering the defendant to pay $700 in monthly child support.

The parties and their attorneys subsequently participated in facilitated mediation. An agreement was reached on all issues in the divorce, including that the defendant would pay $300 in monthly child support and would be allowed additional parenting time. The parties also agreed to review parenting time and custody when the child reached certain ages. In addition, the memorandum appeared to resolve any disputes over personal property and set forth the parties’ individual real estate holdings.

The plaintiff and the defendant ultimately signed a “memorandum of understanding” that reflected their agreement, which concluded as follows: “This memorandum of understanding spells out the agreement that we have reached in mediation. This resolves all disputes between the parties and the parties agree to be bound by this agreement.”

After a settlement conference, the plaintiff filed a motion for entry of judgment on the agreed-upon memorandum. However, the defendant filed a motion to set aside the memorandum. The trial court held a hearing and entered a judgment of divorce, finding that the defendant had signed the memorandum in the presence of his attorney and his signature was expected to “mean something.”

Parties ‘Mean What They Sign’

The defendant appealed the trial court’s decision, premising his argument on alleged procedural errors. Essentially, the defendant claimed the memorandum was similar to a mediation settlement and, therefore, certain procedures had to be followed under MCR 3.216(H)(7) and MCR 2.507(G).

However, the defendant argued that proper procedures were not followed in this case because the memorandum was not read into the court record and was not signed by the mediator or the attorneys. The Court of Appeals disagreed and said, “[T]here was a hearing held and the agreement was scrutinized before entered into the proposed judgment. Thus, the agreement between the two parties was valid.”

According to the Court of Appeals, while a trial court does not have to accept parties’ stipulations or agreements word-for-word, it can accept them and presume “at face value” that the parties meant what they signed. “There is no coherent reason presented why the trial court could not do so in this case,” the Court of Appeals reasoned.

Further, the defendant claimed the trial court had to make an independent factual determination on the statutory best interest factors despite the mediation agreement. In making this argument, the defendant cited Rivette v Rose-Molina, 278 Mich App 327 (2008), and Harvey v Harvey, 470 Mich 186 (2004). But the Court of Appeals found that neither Rivette nor Harvey applied because the issue in those cases was whether a trial court could “rubber stamp” a court referee’s decision when divorcing parents disagree on custody and parenting-time. Thus, Rivette and Harvey “involved the exact opposite of an agreement reached by the parties,” the Court of Appeals observed.The Court of Appeals continued by explaining that, while a trial court must reach an independent conclusion that the divorcing parties’ agreement is in the child’s best interests, the trial court is permitted to accept the parties’ agreement “where the dispute was resolved by the parents instead of a stranger.” Applying this principle to the present case, the Court of Appeals noted the trial court did not indicate it believed that it was bound by the agreement but, instead, “correctly expressed the belief that it was empowered to accept it.”Lastly, the Court of Appeals addressed the defendant’s contention that the trial court had to make a finding regarding the child’s established custodial environment, in order to determine whether entry of the divorce judgment would alter that environment. Calling the defendant’s argument in this respect “nonsensical,” the Court of Appeals noted the context of such a determination is one in which the trial court is making a custody determination for the parties. Accordingly, the requirement of making an express determination of whether there is an established custodial environment “is as inapposite to effectuating an agreement reached by the parties as is the requirement of conducting intensive fact finding,” the Court stated.In conclusion, the Court of Appeals said the trial court properly found that the parties’ mediation agreement was in the best interests of the child and correctly included it in its order. “[T]he trial court was not required to make a finding of an established custodial environment, although of note, defendant actually received increased parenting time from the prior arrangement as well as reduced support payments,” the Court of Appeals wrote. “The evidence shows that there was no clear legal error or abuse of discretion falling outside of the range of principled outcomes.”

Blogger’s Note: It seems that this published decision is inconsistent with prior case law and practice. It has long been understood that, when faced with the parties’ settlement agreement on custody and parenting time, that the trial court has to do some abbreviated review to assure itself that the parties’ agreement is in the best interests of the child. Certainly, there is unpublished case law on that point, See, e.g., Vial v Flowers (Docket 332549, issued Sept 27, 2016), and Roguska v Roguska (Docket 291352, issued Sept 29, 2009).  In addition, the Child Custody Act allows parents to agree on joint custody, but even in that situation, the trial court can refuse to grant joint custody if it finds there is clear and convincing evidence that joint custody is not in the child’s best interests.  MCL 722.26a; see also Koron v Melendy, 207 Mich App 188, 191 (1994). Were the trial courts allowed to blindly accept the parties’ agreements on custody and parenting time, then certainly the Child Custody Act would so indicate.