The trial court’s amended order did not constitute the correction of a clerical error under MCR 2.612(A)(1) because the correction “substantially changed” the initial order, the Michigan Court of Appeals has ruled.

The Court of Appeals in Branham v Branham (Docket Nos. 366008 and 366798) also vacated the trial court’s decision to allow the plaintiff-father’s motion to change his child’s domicile, custody and parenting time.

The defendant-mother, in Docket No. 366798, challenged the trial court’s authority to sua sponte amend its first written order. “Because the trial court’s amended order substantially changed its decision, as reflected in both its oral ruling and first written order, we agree that it cannot be characterized as correction of a clerical error authorized under MCR 2.612(A)(1) (the civil counterpart to the criminal rule of procedure cited by the trial court),” the Court of Appeals said.

The defendant-mother also claimed in Docket No. 366008 that the trial court’s analysis was flawed “with respect to best-interest factors (d), (j), and (k)” in MCL 722.23. “We … conclude that those errors cannot be deemed harmless on this record, so we vacate the April 26, 2023 opinion and order and remand for further proceedings.”

Further, the defendant challenged the trial court’s analysis of the plaintiff’s request to change the domicile of the parties’ child, NB. “We conclude that any error in the trial court’s analysis under the framework applicable to MCL 722.31 was harmless because plaintiff’s motion did not actually request a change in legal residence that would implicate that statute, despite the manner in which it was titled,” the Court of Appeals said.

In Docket No. 366798, “we vacate the trial court’s May 4, 2023 amended opinion and order,” the Court of Appeals held. “In Docket No. 366008, we vacate the trial court’s April 26, 2023 opinion and order and remand for further proceedings. On remand, the trial court should reevaluate its ruling under the appropriate legal framework, taking into account up-to-date information and NB’s circumstances as they exist at the time of remand.”

Judges Colleen A. O’Brien, Kirsten Frank Kelly and Michael J. Kelly were on the panel that issued the 16-page unpublished opinion.

Background

“These appeals stem from the parties’ dispute regarding custody of their child, NB.” After the plaintiff was found not guilty of certain criminal charges, he immediately filed a motion to change NB’s domicile, custody and parenting time as permitted by the parties’ consent judgment of divorce.

The Wayne County trial court considered the factors in MCL 722.31 and MCL 722.23, finding that the plaintiff met his burden of proof. The trial court outlined a new parenting-time schedule and memorialized its decision in a written opinion and order dated April 26, 2023.

On May 3, 2023, the defendant filed a motion requesting a stay of the proceedings pending an appeal. In addition, the plaintiff filed a motion seeking clarification and relief under MCR 2.612, arguing clarification was necessary because the trial court’s order did not specify the defendant’s parenting-time schedule after NB started school. The motions were scheduled to be heard on June 28, 2023.

 Unbeknownst to the parties, the trial court entered an amended opinion and order on May 4, 2023, citing MCR 6.435(B) as authority for clarifying the terms of the original order. While the findings in the amended opinion and order were “substantively identical in most respects” to the original opinion and order, “the amended opinion and order’s conclusions were substantively different.”

When the parties appeared for oral argument on their motions in June 2023, the trial court acknowledged the parties did not receive the amended opinion and order prior to the hearing because of an “oversight.” The trial court apologized for the mistake and indicated that it would still hear the motions. The plaintiff then indicated his motion was no longer necessary in light of the amended order.

The defendant, however, opposed the amended order, both on procedural grounds and because it changed the parties’ parenting time. “Without directly addressing the parties’ positions regarding the propriety of the amendment, the [trial] court acknowledged plaintiff’s withdrawal of his motion and denied defendant’s motion to stay. A later written order repeated the court’s denial of defendant’s motion and indicated that plaintiff’s motion was moot as a result of the amended opinion and order.”

The defendant appealed.

‘Vastly Different’ Order

In Docket No. 366798, the defendant’s claim on appeal involved the trial court’s authority to sua sponte amend its first written order.

“Here, the trial court first announced its ruling on the record on March 21, 2023,” the Court of Appeals explained. “At that time, the court stated that the parties would share joint legal and physical custody, and that defendant was to ‘relocate [NB] to Michigan’ no later than July 1, 2023. … The trial court’s April 26, 2023 order largely mirrored its oral ruling, subject to two exceptions. First, in the schedule outlined in the written order, plaintiff was awarded overnight parenting time ‘every other Tuesday,’ while the court’s oral ruling referenced ‘every Tuesday.’ Second, the trial court’s oral incorporation of the default county schedule referred to the infant and toddler policy, as well as summer breaks, holidays, and other school breaks, but the written order incorporated only the holiday and school-break schedule.”

Comparing the trial court’s rulings with its May 4, 2023 amended order, “it is apparent that … the trial court did more than correct a clerical mistake in the record when it entered the amended order,” the Court of Appeals said, noting the amended order imposed a “vastly different” parenting-time schedule that did not reflect the schedule the trial court had previously announced on the record.

“Inasmuch as nothing in the trial court’s oral ruling suggested that it intended this result from the outset, MCR 2.612(A)(1) did not provide authority for the trial court to dramatically alter its original ruling under the guise of correcting a clerical error,” the Court of Appeals wrote. “Plaintiff characterizes the trial court’s amendment as merely adding a ‘crucial provision inadvertently omitted from the April 26 order - the school-year parenting time schedule.’ While we agree that the trial court’s original ruling would prove impractical during the school year as long as defendant remained living in Indiana, that fact does not alter the obvious procedural error in this case.”

MCR 2.612(A)(1) “allows a trial court to correct clerical mistakes arising from oversight or omission so as to make the written record ‘accurately reflect what was done and decided …,” the Court of Appeals concluded. “It does not authorize a trial court to reach an entirely different decision upon recognizing that its first ruling was unsound. Because the trial court exceeded the scope of MCR 2.612(A)(1) by altering the substance of its initial order beyond mere correction of a clerical mistake, we vacate the May 4, 2023 amended opinion and order.”

Flawed Best-Interest Analysis

In Docket No. 366008, the defendant challenged the trial court’s evaluation of the statutory best-interest factors in MCL 722.23. She argued that most of the trial court’s findings were “insufficient, unsupported by the evidence, and did not support” the conclusion that a change in custody was warranted.

“We agree that the trial court erred with respect to best-interest factors (d), (j), and (k)” in MCL 722.23, the Court of Appeals wrote. Factor (d) addresses “[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.” Factor (j) addresses “[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.” Factor (k) addresses “[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child.”

Because these errors could not be deemed harmless, the Court of Appeals vacated the April 26, 2023 opinion and order and remanded for further proceedings. “In sum, the trial court erred with respect to factor (d) because the great weight of the evidence clearly demonstrated that factor (d) favored defendant. … [T]he trial court’s conclusory finding regarding factor (j) is insufficient for this Court to properly review; and the trial court’s finding regarding factor (k) involved clear legal error.”

According to the Court of Appeals, when a trial court erroneously analyzes the statutory best-interest factors, the remedy is to remand for further proceedings unless the error was harmless.

“We conclude that the errors in this case cannot be deemed harmless,” the Court of Appeals wrote. “The trial court’s decision was based on findings that best-interest factors (a) and (h) favored defendant, factor (j) favored plaintiff, and all other factors were either equal or inapplicable. Coupled with the trial court’s conclusion that plaintiff demonstrated by clear and convincing evidence that a change of custody and parenting time was warranted, we infer that the trial court gave substantial weight to the single factor that favored plaintiff. Because this is the very factor that is not amenable to appellate review on this record, there is no way to accurately evaluate the trial court’s error for harmlessness. This is especially true when coupled with the trial court’s factually unsupported finding regarding factor (d) and clear legal error regarding factor (k).We therefore vacate the April 26, 2023 opinion and order and remand for further proceedings.

Domicile, Credibility Issues

The defendant also argued that the trial court erroneously analyzed the plaintiff’s request to change NB’s domicile.

The defendant maintained that the trial court’s analysis “was flawed in a variety of ways, but none of those arguments warrant relief because the relevant proceedings did not, in fact, involve a change of domicile,” the Court of Appeals said. “By dictating that a child has ‘a legal residence with each parent,’ MCL 722.31(1) clearly contemplates that the child will have two legal residences. … Although styled as a motion to change domicile, custody, and parenting time, plaintiff’s motion did not actually ask the court to permit a change in either of these legal residences in the sense contemplated by MCL 722.31.”

The plaintiff “merely sought expanded parenting time and modification of NB’s custody,” the Court of Appeals observed. “Because a change in NB’s legal residence was never at issue, MCL 722.31 was not implicated. Consequently, any error in the trial court’s analysis of the proposed ‘change of domicile’ was harmless.”

The defendant further argued the trial court erred by adopting Judge Thomas’s credibility finding from the plaintiff’s criminal trial instead of independently assessing the parties’ credibility.  

“We agree that the trial court failed to independently determine the veracity of defendant’s allegations, which constituted clear legal error,” the Court of Appeals said. “As the fact-finder in this case, the trial court was ‘obligated to determine the weight and credibility of the evidence presented.’ … It could not abandon that duty by deferring to Judge Thomas’s view of defendant’s credibility at the criminal trial. To the extent the trial court did so in this case, it amounted to clear legal error.”