Family Law

Issues: Custody; Challenge to the trial court's interpretation of the "active duty" provision of the Child Custody Act; MCL 722.27(1)(c); Fletcher v. Fletcher; People v. Smith-Anthony; In re Petition of Attorney Gen. for Investigative Subpoenas; Whether the trial court had the authority to change custody; Vodvarka v. Grasmeyer; "Established custodial environment" (ECE); Foskett v. Foskett; Hayes v. Hayes; Claim that several of the trial court's "best-interest" findings contravened the great weight of the evidence; Rains v. Rains; Ireland v. Smith; Bowers v. Bowers

Court: Michigan Court of Appeals (Published)

Case Name: Kubicki v. Sharpe

e-Journal Number: 57977

Judge(s): Per Curiam – Gleicher, Servitto, and Ronayne Krause


Because the defendant-father (Dale) filed his change of custody motion before the plaintiff-mother (Holly) was called to active duty, the court found the relevant statutory language (MCL 722.27(1)(c)) inapplicable. Nevertheless, it vacated the custody order and remanded for a new evidentiary hearing because the trial court failed to consider the child's wishes. Holly, an active duty member of the U.S. Army, contended that by placing her son (DLS) in the temporary custody of his father, the trial court deprived her of MCL 722.27(1)(c) protection. She challenged the trial court's interpretation of the "active duty" provision of MCL 722.27(1)(c). The court agreed that the trial court misconstrued MCL 722.27(1)(c). However, the trial court's flawed legal analysis did not yield a victory for Holly because "under the circumstances presented, the statute plainly permitted a custodial change." The trial court declared that "'[d]ue to [Holly's] active military duty this [c]ourt cannot consider a change of custody.' Contrary to this conclusion, the limitation on custodial changes stated in MCL 722.27(1)(c) applies only '[i]f a motion for change of custody is filed during the time a parent is in active military duty . . . .'" Dale brought his change of custody motion approximately two months before Holly enlisted in the Army. Because he sought custody before Holly's enlistment, the statute did not foreclose a custodial change. Thus, the trial court incorrectly concluded that Holly's intervening deployment deprived it of authority to change DLS's custody. It "need not have disguised its order by characterizing it as 'modifying parenting time,' when in reality the order changed the child's custody. Given the timing of Dale's motion, the text of MCL 722.27(1)(c) erected no barrier to this result." The trial court employed the analysis required for a custodial change. As prescribed in Vodvarka, it first considered whether Dale had established a change of circumstances or proper cause for a custodial change under MCL 722.27(1)(c). It determined that Holly's husband's enhanced role in DLS's life fulfilled this standard, and she did not challenge this finding. "The trial court's consideration of the Vodvarka threshold signaled its awareness that custody rather than parenting time was at stake." The next step required a determination of DLS's ECE. The trial court failed to articulate any findings specifically identifying DLS's ECE. On remand, the trial court was instructed to explicitly state its ECE finding and to support it with reference to pertinent facts. After finding grounds for a custodial evaluation, the trial court made findings and rendered conclusions as to the 12 best-interest factors set forth in MCL 722.23. By proceeding in this fashion, the trial court "analyzed the evidence in the manner applicable to custody challenges." The court discerned "no statutory basis arising from Holly's deployment to disturb" the trial court's finding that a temporary change in custody would serve DLS's best interests.


Full Text Opinion

This summary also appears under Probate


Issues: Distribution of property following the death of the deceased spouse before finalization of the divorce; Wilson v. Wilson; MCR 3.216(H)(7); Tiedman v. Tiedman; Kresnak v. Kresnak; Tokar v. Albery

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Hayes Estate

e-Journal Number: 57737

Judge(s): Per Curiam – Boonstra, Meter, and Servitto


Concluding that the trial court erred in granting summary disposition to respondent (the son of the deceased, Ronald, and a beneficiary of his estate) because Ronald's death terminated the divorce proceedings involving Ronald and the petitioner, the court reversed and remanded. Ronald and petitioner were proceeding with a divorce when he died. The parties had been ordered to domestic-relations mediation. A transcript of the audio recording of the mediation revealed that they "had reached a settlement that provided for a largely equal division of the marital estate." Petitioner testified at a hearing that there had been a breakdown of the marriage and that they had reached an equitable settlement. After Ronald's death, she filed a petition in the probate court seeking to restrain respondent from taking certain assets. The probate court held "there was a binding agreement existing" between Ronald and petitioner, "no genuine of material facts exists," and respondent was entitled to judgment as a matter of law. In concluding that the trial court erred, the court noted that "when Ronald died, the divorce proceedings ended, and at that point, no judgment had been entered." Respondent contended that Kresnak "essentially vitiates the import of Tiedman." However, the court failed "to see how Kresnak controls in the present case, seeing as the present case, as in Tiedman, involves the proposed entry of a judgment for divorce, not for separate maintenance." It concluded that Tiedman was "the more applicable case." In Tokar, the court mentioned two possible exceptions under which a binding arbitration award in a divorce case could be enforced - (1) if entry of judgment would have been merely "ministerial" and (2) "if the decedent had acted in reliance on the award." The court in Tokar found that entry of judgment would not have been "ministerial" because there were issues remaining and "before the judgment of divorce was entered, the parties had the option to reconcile or stipulate to an agreement entirely different from the arbitration award." The court concluded that the same reasoning held true in this case. The Tokar court "also found no reliance by the decedent, stating that, to show reliance, '[m]eaningful proof of conduct indicating the parties themselves in good faith believed they were divorced is required.'" Such reliance was not shown in this case either.


Full Text Opinion
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