John Allen Lieberman v. Kimberly Ann Orr
319 Mich App 68
| Mich. Ct. App. | 2017Background
- Parents divorced in 2008; judgment awarded Orr sole physical custody, joint legal custody, and liberal parenting time to Lieberman; subsequent stipulation (2011) gave Lieberman ~140 overnights/year and Orr ~225.
- In 2013 Orr sought expanded parenting time; referee and trial court found children had an established custodial environment with both parents.
- In 2016 Lieberman moved to change the children’s school to Midland Academy and sought to “swap” the parenting-time schedule so children primarily reside with him during the school year to address the younger child’s declining academic performance.
- Evidence showed the younger child scored low in reading/math (≈29th/27th percentiles), improved with Sylvan tutoring to mid-50s, then regressed without year‑round tutoring; parents disagreed about use of paid tutoring and school change.
- Trial court found proper cause/change of circumstances, concluded the school change and parenting-time swap (giving Lieberman ~225 overnights/year) were in the children’s best interests, and applied the preponderance standard because it found no change to the established custodial environment.
- This opinion is a dissent arguing the trial court’s factual findings and legal framework were correct and should be affirmed.
Issues
| Issue | Plaintiff's Argument (Lieberman) | Defendant's Argument (Orr) | Held |
|---|---|---|---|
| Whether the younger child’s academic decline justified revisiting parenting time (proper cause/change of circumstances) | Academic decline and risk to long-term success required re-evaluation; needed school change and parenting-time swap | No proper cause or change of circumstances shown | Trial court: proper cause/change shown; dissent agrees (not against great weight of evidence) |
| Whether children had an established custodial environment with both parents | Agreed they did; modification would not change that environment | Argued prior sole physical custody for Orr means a custodial-environment change and thus higher standard applies | Trial court: established custodial environment with both parents remains; dissent: finding not against great weight of evidence |
| Whether the parenting-time swap (≈85‑overnight shift) altered the established custodial environment | Change in overnights does not necessarily change custodial environment given parental involvement | Argued 85‑overnight shift necessarily changes custodial environment (should trigger clear-and-convincing standard) | Trial court applied preponderance standard; dissent holds 85‑day numeric shift alone insufficient and affirms trial court’s factual finding |
| Standard of proof for best interests (preponderance vs clear and convincing) | Preponderance appropriate because custodial environment unchanged | Clear and convincing required if custodial environment would change | Trial court used preponderance; dissent agrees that was correct because no custodial-environment change was established |
Key Cases Cited
- Pierron v. Pierron, 486 Mich. 81 (framework distinguishing changes that alter an established custodial environment)
- Berger v. Berger, 277 Mich. App. 700 (definition of established custodial environment)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (proper-cause/change-of-circumstances threshold to revisit custody)
- Corporan v. Henton, 282 Mich. App. 599 (review of whether academic decline can constitute material change)
- Hayes v. Hayes, 209 Mich. App. 385 (focus on child’s actual environment, not prior custody label)
- Shade v. Wright, 291 Mich. App. 17 (normal life changes may justify parenting-time changes that do not alter custodial environment)
- Northern Securities Co. v. United States, 193 U.S. 197 (quoted for the observation that emotionally charged cases can distort legal analysis)