Dailey v. Kloenhamer
291 Mich. App. 660
| Mich. Ct. App. | 2011Background
- Plaintiff and defendant divorced in 2003; they share legal custody and child resides with defendant per divorce judgment.
- Child born March 26, 1998; prior disputes focused on parenting time, later expanded to education, religion, and medical treatment.
- In 2009, parties reached an agreement modifying parenting time and requiring plaintiff to obtain an allergist second opinion on respiratory condition.
- A Mott Children’s Hospital test later concluded the child did not have asthma; disagreement over medical care persisted, including cessation of asthma medications.
- March 2010 agreement prohibited either party from seeking treatment or testing without written consent; required consultation if serious cough redeveloped.
- August 2010 circuit court held a hearing, found proper cause or change in circumstances, found custodial environment in both homes, and granted defendant sole legal custody with joint physical custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proper cause or change in circumstances existed to revisit custody. | Plaintiff argues no valid change since last order. | Defendant contends disputes over medical care and education constitute change. | Yes; there was proper cause or change in circumstances to revisit custody. |
| Whether clear and convincing evidence supports sole legal custody to defendant. | Plaintiff contends insufficient evidence and misapplication of best-interest factors. | Defendant argues best-interest factors support sole legal custody due to medical decision-making discord. | Yes; the evidence supports sole legal custody to defendant with joint physical custody. |
| Whether Child Custody Act permits sole legal custody with joint physical custody. | Plaintiff asserts Act requires joint custody in such circumstances. | Defendant contends Act authorizes separate joint physical and sole legal custody. | Yes; Act permits this separation of physical and legal custody. |
| Whether trial court should have fashioned a different remedy by apportioning decision-making authority. | Plaintiff argues for apportionment of important decisions. | Defendant argues no statutory basis for apportionment when significant authority is allocated. | Not preserved; court held no merit to apportionment remedy. |
Key Cases Cited
- Fletcher v Fletcher, 447 Mich 871 (1994) (standard for reviewing custody decisions under MCL 722.28)
- Vodvarka v Grasmeyer, 259 Mich App 499 (2003) (proper cause or change in circumstances; burden by preponderance)
- Wellman v Wellman, 203 Mich App 277 (1994) (considers cooperation in joint custody)
- Meyer v Meyer, 153 Mich App 419 (1986) (requirement to evaluate each best-interest factor and record rationale)
- Shulick v Richards, 273 Mich App 320 (2006) (applies standard for evaluating decisions in custody context)
- Providence Hosp v Nat’l Labor Union Health & Welfare Fund, 162 Mich App 191 (1987) (preservation and consideration of issues on appeal)
- Corporan v Henton, 282 Mich App 599 (2009) (great weight of the evidence standard for certain factual determinations)