Kessler v. Kessler
295 Mich. App. 54
| Mich. Ct. App. | 2011Background
- Three minor children; parties married in 1999 and reside in Montague, Michigan; no prior custody order before December 2010 hearing; during proceedings, parties continued living together in the marital home.
- Plaintiff earned a higher salary and began a Florida job on November 1, 2011, and sought to move the children to Florida; Defendant wished to remain in Montague with the children.
- Trial court awarded defendant primary physical custody after considering best-interest factors; plaintiff appeals.
- Plaintiff argued the court should have applied MCL 722.31(4) change-of-domicile factors and that there was an established custodial environment with her.
- Court held change-of-domicile factors did not apply because there was no existing custody order governing the parties; the court failed to determine whether an established custodial environment existed and remanded for that determination.
- On remand, the court must assess established custodial environment first, apply the best-interest factors, and determine custody accordingly; some factual findings about factors were found not against the great weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not applying MCL 722.31(4) (change of domicile) factors. | Plaintiff contends the change-of-domicile factors should have been considered. | Defendant contends the change-of-domicile factors apply only when a custody order exists; they do not here. | No error; those factors do not apply absent an existing custody order. |
| Whether the court erred by failing to determine an established custodial environment. | Plaintiff asserts there was an established custodial environment with her and the court should apply that burden. | Defendant argues no determination of such environment was required at initial stage. | Court erred; remand to determine established custodial environment first. |
| Whether use of a preponderance standard was appropriate without establishing custodial environment. | Plaintiff challenges the use of preponderance without a prior established environment finding. | Defendant relies on standard practice under the Act once environment is determined. | Remand required to address burden after establishing environment. |
| Whether the trial court’s best-interest factor findings were against the weight of the evidence. | Plaintiff argues several factors favored her but were found neutral or improper. | Defendant contends the court’s findings were supported and discretionary in weighing factors. | Findings not against the great weight of the evidence; affirmed in part, reversed in part, remanded for new proceedings. |
Key Cases Cited
- Fletcher v Fletcher, 447 Mich 871, 526 NW2d 889 (1994) (1994) (established custodial environment and review standards; remand if error not harmless)
- Thompson v Thompson, 261 Mich App 353, 683 NW2d 250 (2004) (2004) (statutory interpretation of MCL 722.27; initial custody order subject to second sentence limitations)
- Bowers v Bowers, 190 Mich App 51, 475 NW2d 394 (1991) (1991) (established custodial environment determination governs burden of proof)
- Berger v Berger, 277 Mich App 700, 747 NW2d 336 (2008) (2008) (review standard for custody findings; not de novo; discretion to weight factors)
- Foskett v Foskett, 247 Mich App 1, 634 NW2d 363 (2001) (2001) (requirement to articulate basis for established custodial environment; not harmless error)
- Vodvarka v Grasmeyer, 259 Mich App 499, 675 NW2d 847 (2003) (2003) (great weight standard; deference to trial court credibility; burden on party claiming change)