940 N.W.2d 807
Mich. Ct. App.2019Background
- Parties divorced in 2011; mother (Lt. Col. Pamela Johnson) awarded primary physical custody and later sought a 2016 move to Virginia for active-duty military service.
- Friend of the Court repeatedly filed show-cause petitions alleging mother violated the parenting-time order (Skype sessions, holiday and summer exchanges, medical information).
- Mother missed multiple show-cause hearings and submitted military letters seeking stays under the Servicemembers Civil Relief Act (SCRA), including a combined letter signed by her commanding officer before the April 16, 2018 hearing.
- Trial court denied the SCRA stay for April 2018, found mother in contempt, issued a $15,000 bench-warrant bond and ordered $1,500 to father; later (September 2018) increased bond to $25,000, suspended her licenses, and awarded father temporary physical placement of the children.
- On appeal, the court reviewed whether the trial court correctly applied the SCRA and whether the temporary custody change complied with Michigan procedure and best-interest requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in denying a mandatory SCRA stay (50 U.S.C. § 3932(b)) | Johnson argued she submitted the required SCRA materials (military statement, commanding officer support) and was entitled to a 90-day stay | Court should deny stay because submitted materials did not satisfy § 3932(b)(2)(A)’s factual showing and did not state a definite availability date | Court affirmed denial: single combined letter is permissible, but Johnson’s letter failed to (1) state how duties materially prevented appearance and (2) state a definite date of availability, so mandatory stay not required. |
| Whether the trial court was required to appoint counsel under SCRA § 3932(d) when denying an additional stay | Johnson argued the court should have appointed counsel | Father argued appointment not required where stay was denied under § 3932(b) and § 3932(d) was inapplicable | Court held no error in not appointing counsel at April 2018 hearing (§ 3931 inapplicable and § 3932(d) concerns additional stays) |
| Whether trial court’s contempt sanctions and monetary award were improper | Johnson asserted bias and that sanctions violated SCRA procedural protections | Father pointed to repeated failures to appear and alleged long-standing parental noncompliance | Court declined to address unpreserved/bare assertions of bias and deemed many of Johnson’s arguments abandoned for lack of development; sanctions not reversed on SCRA grounds. |
| Whether the trial court properly awarded father temporary physical custody without an evidentiary hearing and required findings | Johnson argued the custody change lacked statutory best-interest analysis and hearing | Father argued ex parte/temporary placement was justified by alleged ongoing deprivation of contact and mother’s disregard of orders | Court reversed custody portion: trial court abused discretion and committed clear/plain error by failing to hold an evidentiary hearing, make findings on change-of-circumstances/best-interest factors, and by not complying with MCR 3.207 ex parte notice requirements. |
Key Cases Cited
- Boone v. Lightner, 319 U.S. 561 (1943) (SCRA predecessor should be liberally construed to protect servicemembers).
- Dextrom v. Wexford Co., 287 Mich. App. 406 (2010) (statutory interpretation reviewed de novo).
- Griffin v. Griffin, 323 Mich. App. 110 (2018) (apply plain statutory meaning; construction principles).
- McQueer v. Perfect Fence Co., 502 Mich. 276 (2018) (court may not read into statute beyond legislative intent).
- Grew v. Knox, 265 Mich. App. 333 (2005) (evidentiary hearing required before modifying custody, even temporarily; specific findings on 12 best-interest factors required).
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (2003) (custody decisions reviewed for abuse of discretion).
- Pluta v. Pluta, 165 Mich. App. 55 (1987) (ex parte custody orders cannot circumvent requirement for hearing and clear-and-convincing proof of best interest).