Wardell v. Hincka
297 Mich. App. 127
| Mich. Ct. App. | 2012Background
- Marriage of Hincka and Wardell ends in divorce; parenting order provides joint custody and a week-on, week-off schedule.
- Child: daughter born July 11, 2006; schooling located between Alpena and Rogers City.
- April 2011: Hincka moves to Cheboygan and files for change of custody; Wardell counters with change petition.
- Friend of the Court recommends primary physical custody to Wardell with joint legal custody.
- Trial court holds hearing; Hincka testifies about stability with fiancée and involvement in child’s education; Wardell discusses communication and past driving with a revoked license.
- December 30, 2011: court denies both motions, finds current arrangement workable and that the only notable change is the move to Cheboygan.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the December 30, 2011 order is appealable. | Wardell argues the order affects custody and is appealable as a final order. | Hincka contends the order is not final and thus not appealable. | Court has jurisdiction; order is a final order affecting custody. |
| Whether the trial court abused its discretion by denying the change of custody. | Wardell maintains the great weight of the evidence favored her custody claim. | Hincka argues the evidence favors a change due to the move and time in commute and stability concerns. | No abuse of discretion; change not warranted; commute increase not weighty enough to disrupt joint custody. |
Key Cases Cited
- Rivette v Rose-Molina, 278 Mich App 327; 750 NW2d 603 (2008) (2008) (orders denying change of custody are orders affecting custody; appealable)
- Corporan v Henton, 282 Mich App 599; 766 NW2d 903 (2009) (2009) (denial of change of custody reviewed for appealability)
- Treutle v Treutle, 197 Mich App 690; 495 NW2d 836 (1992) (1992) (interpretation of custody-related postjudgment orders)
- Schubring v Schubring, 190 Mich App 468; 476 NW2d 434 (1991) (1991) (custody and best-interest considerations)
- Sedlar v Sedlar, 165 Mich App 71; 419 NW2d 18 (1987) (1987) (standards for appellate review in custody disputes)
- In re Investigative Subpoena, 258 Mich App 507; 671 NW2d 570 (2003) (2003) (discretionary approach to interlocutory considerations)