Benjamin Ashmore v. Kelly Ashmore
333440
| Mich. Ct. App. | Dec 15, 2016Background
- Parties: Benjamin Ashmore (plaintiff) sought to change custody of the parties’ youngest child, LA; Kelly Ashmore (defendant) was primary residential parent with joint legal custody.
- Procedural posture: May 26, 2015 custody order entered by consent. Plaintiff moved nearly a year later (May 2016) to change custody; trial court denied the motion and plaintiff appealed.
- Plaintiff’s grounds: alleged LA’s academic decline and low morale, defendant’s failure to address LA’s medical/mental-health needs, and interference by defendant’s relatives with LA’s communication with plaintiff.
- Trial-court findings: LA’s latest report card showed B+/B- grades and positive behavior; LA had attended therapy (11 sessions); vaccinations and medical/dental care were not shown inadequate; communication issues were addressed by court instruction.
- Legal threshold: under the Child Custody Act, modification requires proof by preponderance of proper cause or a material change of circumstances relevant to best-interest factors.
- Result: Court of Appeals affirmed denial, holding plaintiff failed to establish proper cause or a change of circumstances and no evidentiary hearing was required on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there proper cause or a change of circumstances to revisit the May 2015 custody order? | Ashmore argued LA’s academic/behavioral decline, unmet mental/medical needs, and interference with communication justify reopening custody. | Defendant argued the evidence did not show a significant new condition or ongoing inadequacy; many alleged problems were resolved or unsupported. | Held: No — plaintiff did not show proper cause or a material change of circumstances. |
| Did the trial court err by not holding an evidentiary hearing on the threshold issue? | Ashmore contended a hearing was necessary and the record was inadequate without defendant’s testimony or affidavits. | Defendant maintained a hearing is not required and facts were sufficiently developed; plaintiff previously told court no appeal would be filed. | Held: No error — courts need not hold an evidentiary hearing on threshold showing; record was adequate. |
| Could plaintiff challenge the May 26, 2015 consent custody order on this appeal? | Ashmore sought substantive reexamination of whether the consent order was in LA’s best interests. | Defendant argued the consent order was final, plaintiff did not timely appeal it, and the 2016 appeal targets the denial of the change-motion only. | Held: Plaintiff cannot relitigate the 2015 consent order on this appeal; he failed to timely appeal that order. |
| Should the court have analyzed and decided MCL 722.23 best-interest factors on the merits? | Ashmore asked for sole custody or remand for best-interest hearing. | Defendant argued threshold not met so no merits hearing was permitted. | Held: No — because threshold (proper cause/change) not shown, court correctly declined to hold a best-interest evidentiary hearing. |
Key Cases Cited
- Kubicki v. Sharpe, 306 Mich. App. 525 (Mich. Ct. App. 2014) (standards of appellate review in custody cases)
- Corporan v. Henton, 282 Mich. App. 599 (Mich. Ct. App. 2009) (threshold showing of proper cause or change of circumstances)
- Mitchell v. Mitchell, 296 Mich. App. 513 (Mich. Ct. App. 2012) (great-weight-of-evidence standard)
- Shann v. Shann, 293 Mich. App. 302 (Mich. Ct. App. 2011) (deference to trial-court credibility determinations)
- Sturgis v. Sturgis, 302 Mich. App. 706 (Mich. Ct. App. 2013) (definition of clear legal error)
- In re AP, 283 Mich. App. 574 (Mich. Ct. App. 2009) (modification standards under Child Custody Act)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (Mich. Ct. App. 2003) (definitions of proper cause and change of circumstances)
- Living Alternatives for Developmentally Disabled, Inc. v. Dep’t of Mental Health, 207 Mich. App. 482 (Mich. Ct. App. 1994) (estoppel based on trial-court positions)
- Surman v. Surman, 277 Mich. App. 287 (Mich. Ct. App. 2007) (final postjudgment custody orders must be appealed timely)
- Harvey v. Harvey, 470 Mich. 186 (Mich. 2004) (court must satisfy itself that custody consent agreement is in child’s best interests)
- Dybata v. Kistler, 140 Mich. App. 65 (Mich. Ct. App. 1985) (one may not appeal from a consent judgment)