Kinga Kostreva v. Michael Kostreva ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
KINGA KOSTREVA, FOR PUBLICATION
June 24, 2021
Plaintiff-Appellee, 9:00 a.m.
V Nos. 352029; 353316
Macomb Circuit Court
MICHAEL KOSTREVA, LC No. 2017-001184-DM
Defendant-Appellant.
Before: MURRAY, C.J., and FORT HOOD and RICK, JJ.
FORT HOOD, J.
Defendant appeals as of right the trial court’s orders granting plaintiff’s request to take the
parties’ minor daughter, LKK, to Poland for two weeks, changing the custodianship of the child’s
passport from defendant to plaintiff, and granting plaintiff’s request for attorney fees while
denying defendant’s request for the same. We affirm in all respects.
I. FACTUAL BACKGROUND
In 2017, the parties divorced and entered a consent judgment of divorce providing that the
parties would share joint legal and physical custody of LKK, but that defendant would retain
LKK’s passport. On July 3, 2019, plaintiff’s mother—LKK’s grandmother—passed away
unexpectedly while visiting plaintiff and LKK from Poland. In preparation to return the decedent
to her home in Poland for a memorial service and burial, plaintiff sought consent from defendant
to travel with LKK to Poland for two weeks. Defendant did not consent, leading plaintiff to file
an emergency motion with the trial court to authorize the travel on July 18, 2019. In the motion,
plaintiff requested LKK’s passport from defendant, and requested attorney fees. The trial court
granted the motion the following day, authorized plaintiff to travel with LKK to Poland from
July 20, 2019, to August 3, 2019, and set a hearing on the permanency of the passport’s custodian
and attorney fees for August 5, 2019.
Following the hearing, a referee recommended that defendant retain custody of LKK’s
passport, but that defendant reimburse plaintiff for the $1,112.50 in attorney fees necessitated by
the motion. Defendant filed objections to the fees. On that basis, a subsequent evidentiary hearing
was held on November 1, 2017. Following that hearing, the trial court issued a written opinion
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and order denying a request by defendant for attorney fees and increased the fees owed to plaintiff
to $6,395. The court additionally, and apparently on its own motion, revisited the issue of
permanent custody of LKK’s passport and decided plaintiff would be the custodian of the passport.
Defendant filed a motion for reconsideration, which the trial court denied. This appeal followed.
II. THE UNIFORM CHILD ABDUCTION PREVENTION ACT
Defendant first contends that the trial court erred in modifying the parties’ consent
judgment of divorce to effectively reverse protective orders against parental kidnapping without
first considering the factors outlined in the Uniform Child Abduction Prevention Act (UCAPA),
MCL 722.1521 et seq., or the best-interest factors from the Child Custody Act, MCL 722.21 et seq.
We disagree.
As a preliminary matter we note that, under the circumstances, “[n]o exception need be
taken to a finding or decision” in order to preserve the issue of whether the trial court erred by
modifying the parties’ consent judgment of divorce to change the custodianship of the child’s
passport from plaintiff to defendant. See MCR 2.517(A)(7). However, for the purposes of this
appeal, we find it relevant to note that defendant failed to invoke any argument below concerning
the UCAPA or the Child Custody Act. That is to say, defendant’s argument on appeal necessarily
implies that the trial court should have sua sponte considered provisions of the UCAPA, and in so
doing the best-interest factors set forth in MCL 722.21 of the Child Custody Act, prior to awarding
custody of the child’s passport to plaintiff.
The same general standard of review applies to Issues II through V of this opinion: All
custody orders must be affirmed on appeal unless the trial court’s factual findings are against the
great weight of the evidence, the court committed a palpable abuse of discretion, 1 or the court
made a clear legal error on a major issue. MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 876-
877; 526 NW2d 889 (1994).
The UCAPA, MCL 722.1521 et seq., was enacted, effective January 12, 2015, to “allow
courts in this state to impose measures to prevent the abduction of children; to establish standards
for determining whether a child is subject to a significant risk of abduction; and to provide
remedies.” 2014 PA 460. Under MCL 722.1524(1), “[a] court on its own motion may order
abduction prevention measures in a child-custody proceeding if the court finds that the evidence
establishes a credible risk of abduction of the child,” and under subsection (2), “[a] party to a child-
custody determination . . . may file a petition seeking abduction prevention measures to protect the
child under this act.” These provisions indicate that the provisions of the UCAPA are not
1
“Although the ‘outside the range of reasonable and principled outcomes’ standard is now the
‘default abuse of discretion standard,’ child custody cases specifically retain the historic Spalding
standard.” Moote v Moote, 329 Mich App 474, 478 n 2; 942 NW2d 660, 663 (2019), citing
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). According to Spalding
v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959), an abuse of discretion occurs when the
result is “so palpably and grossly violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of
reason but rather of passion or bias.”
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applicable unless specifically invoked—either by the court or by a party. As specified in
subsection (1), a court’s authority to invoke the UCAPA arises when there is evidence establishing
“a credible risk of abduction of the child.”
In this case, however, although defendant asserts that plaintiff’s emergency motion
occasioned “the first time a Michigan court was being asked to review an order entered based on
the risk factors in the UCAPA,” he claims incorrectly that he raised this issue in his response to
plaintiff’s emergency motion and in his motion for reconsideration. In arguing the issue in his
brief on appeal, he nowhere otherwise asserts that the UCAPA was ever invoked by anyone
throughout the proceedings below. Further, although defendant complains that plaintiff has at
times taken some liberties with her time or travel with LKK, including by not always providing
defendant with satisfactory notice, he does not assert that plaintiff ever attempted any actual
abduction in the sense of parental kidnapping in derogation of his own parental rights. Because
the record does not reveal any evidence establishing “a credible risk of abduction of the child,” the
trial court did not commit clear legal error for not having sua sponte invoked the UCAPA during
the proceedings below.
III. PROPER CAUSE AND CHANGE OF CIRCUMSTANCES
Related to the previous issue, defendant next contends that the trial court abused its
discretion by changing the custodianship of the child’s passport from defendant to plaintiff without
first determining that proper cause or changed circumstances warranted revisiting the issue.
As with the framing of the UCAPA issue, in framing this issue defendant speaks to the trial
court having reversed “protective orders” against “parental kidnapping.” In fact, defendant calls
attention to no specific protective orders, but asserts that in the parties’ predivorce history “a Cook
County, Illinois trial court issued protective orders designed to ensure against parental
kidnapping.” Defendant elaborates that “Appellee-Mother obtained an Emergency Order of
Protection against him from the Cook County, Illinois, Domestic Relations Division” in January
2014, citing “County, Illinois Case No. 13 OP 75578 (Cook County PPO Order),” and that “the
Cook County trial court vacated the Emergency Order of Protection based on Appellee-Mother’s
motion on January 22, 2014.” According to defendant, further such litigation had the result that
“[o]n October 14, 2015, the Cook County trial court entered an Order for Visitation placing
restrictions on the requested travel, including that Appellant-Father travel to Poland with the minor
child.” Defendant otherwise refers to “protective language included in a Consent Judgment of
Divorce to prevent international parental kidnapping.”
Defendant does not specifically assert that the instant trial court failed to afford full faith
and credit to any pertinent Illinois orders, all of which predated the parties’ Macomb County
divorce proceedings culminating in a consent judgment. Although defendant asserts, without
citation of authority, that when “Cook County transferred (not dismissed) its custody case to
Michigan because the parties and the courts determined that Michigan was the more convenient
forum, the protective provisions went with them into the new state,” he then adds that the instant
trial court “never needed to review Cook County’s findings because the parties reached a Consent
Judgment of Divorce that included similar protective provisions.” At issue, then, is not the
“reversal,” or overruling, of specific protective orders originating in Illinois, but rather the
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enforcement or modification of certain particulars in the parties’ Macomb County divorce
judgment.
According to MCL 722.27(1)(c), a court may modify an existing child custody order “for
proper cause shown or because of change of circumstances.” That subsection further states that a
court may not change a child’s established custodial environment except upon presentation of
“clear and convincing evidence that it is in the best interest of the child,” and sets forth criteria for
determining the existence of an established custodial environment. “However, a lesser, more
flexible, understanding of proper cause or change in circumstances is applicable to a request to
modify parenting time” in ways that would not affect the child’s established custodial
environment. Marik v Marik, 325 Mich App 353, 367-368; 925 NW2d 885 (2018) (quotation
marks and citation omitted). Further, if the proposed modification would not change the custodial
environment, the proponent of the modification need show that the change is in the child’s best
interests on a mere preponderance of the evidence. Shade v Wright, 291 Mich App 17, 23; 805
NW2d 1 (2010). In this case, defendant concedes that plaintiff’s motion for custody of the subject
child’s passport has no bearing on the child’s established custodial environment.
“A party requesting a change to an existing condition on the exercise of parenting time
must demonstrate proper cause or a change in circumstances that would justify a trial court’s
determination that the condition in its current form no longer serves the child’s best interests.”
Kaeb v Kaeb, 309 Mich App 556, 571-572; 873 NW2d 319 (2015). However, because the
modification of a mere condition on the exercise of parenting time “will generally not affect an
established custodial environment or alter the frequency or duration of parenting time,” the “lesser,
more flexible, understanding of ‘proper cause’ or ‘change in circumstances’ ” is the applicable one.
Id. at 570-571. Accordingly, the proponent of such modification need show only “that there is an
appropriate ground for taking legal action.” Id. at 571.
Defendant, citing Kaeb, characterizes custody of the subject child’s passport as a condition
of the parenting-time provision of the parties’ custody arrangement. That characterization is a
strained one. At issue in Kaeb was the conditioning of a party’s exercise of parenting time on his
attending Alcoholics Anonymous meeting and continuing counseling. Id. at 572. In contrast,
custodianship of a child’s passport has no direct bearing on the apportionment of parenting time,
including the scheduling of it, but instead potentially bears on the balance of power, or opportunity
to abuse authority, between parties to shared custody arrangements as concerns the child’s
international travel. Custody of the child’s passport is a “condition” of parenting time only in that
sense, not in the sense at issue in Kaeb, where the father was ordered to participate in Alcoholics
Anonymous and counseling in order to maintain his eligibility to exercise his parenting time.
In Ludwig v Ludwig, 322 Mich App 266, 274; 911 NW2d 213 (2017) (2017), rev’d 501
Mich 1075 (2018), this Court held that a court may enter an order that does not modify parenting
time “without first holding an evidentiary hearing regarding the contested best interests of the
children.” That case concerned a reunification order whereby the defendant and the children, along
with two therapists, were to participate in a video conference, after which the “frequency, duration,
and method of continued contact will be at the therapists’ discretion.” Ludwig, 322 Mich App
at 272. The trial court had declared that “therapeutic contact” in that form did not constitute
parenting time, and thus that the order effected no change in that regard. Id. This Court agreed
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that “a court-ordered videoconference between defendant, the children, [and two therapists] does
not constitute the ‘parenting time’ envisioned under the Child Custody Act.” Id. at 274.
Our Supreme Court reversed, holding, in an order entered in lieu of granting leave, that
“the circuit court should have held an evidentiary hearing and considered the best interests of the
children before entering the reunification order.” Ludwig, 501 Mich at 1075 (2018). The Supreme
Court noted that the order below “left up to the unfettered discretion of the therapists the
‘frequency, duration, and method’ of any additional contact between the defendant and the children
for a six-month period following the initial video conference,” then stated that “the circumstances
of this case warrant a hearing to determine whether the reunification process authorized by the
circuit court’s order is in the children’s best interests.” Id. The Court thus expressed disagreement
not with this Court’s declaration that a trial court need not conduct a best-interest hearing before
issuing an order that does not modify parenting time, but rather with this Court’s acceptance of the
characterization of an order requiring video contact between parent and children, and authorizing
therapists to direct further such contact, as one not modifying parenting time.
Because this Court’s decision in Ludwig was wholly reversed, no part of it remains binding
authority. See MCR 7.215(J)(1). However, we note that, because the Supreme Court did not
express disapproval of this Court’s declaration that an order that does not modify parenting time
need not follow from an evidentiary best-interest hearing, that facet of the case continues to offer
useful instruction. Here, because which of the parties has custody of their daughter’s passport has
no direct bearing on the daughter’s custodial environment, or on any existing order’s provisions
for how much parenting time either parent is to have, including whether and when it is exercised,
we hold that the trial court did not commit a clear legal error, or palpably abuse its discretion, by
changing the custodianship of the child’s passport from defendant to plaintiff without first
determining that proper cause or changed circumstances warranted revisiting the issue.
IV. DUE PROCESS
Defendant next contends that the trial court deprived him of due process when it issued the
ex parte order permitting plaintiff to travel with LKK to Poland. We disagree.
Preliminarily, neither the court below nor either party on appeal has addressed the issue of
mootness in conjunction with defendant’s objections to the ex parte order. But plaintiff and the
child had gone to, and returned from, Poland by the time defendant filed his written response to
plaintiff’s emergency motion. “An issue is deemed moot when an event occurs that renders it
impossible for a reviewing court to grant relief.” B P 7 v Bureau of State Lottery, 231 Mich App
356, 359; 586 NW2d 117 (1998). However, in light of the parties’ history of failing to reach
agreement over LKK’s travels, we note the exception to our policy of declining to reach moot
issues when the issue may recur between the parties while tending to evade timely appellate
review. See Contesti v Attorney General, 164 Mich App 271, 278; 416 NW2d 410 (1987). We
elect to address the issue.
Defendant contends that plaintiff did not seek judicial relief when their disagreement over
LKK going to Poland became apparent, on July 10, 2019. Defendant notes that, had plaintiff filed
a motion sooner, there might have been time for defendant to present his side of the argument.
Instead, plaintiff filed for an ex parte order on an emergency basis on July 18, 2019, for a trip to
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begin just two days later, thus guaranteeing that defendant would have no meaningful opportunity
to oppose the motion. Defendant further protests that the trial court overlooked plaintiff’s failure
to support her motion with verification or an affidavit, and that plaintiff’s proposed order did not
include notice of defendant’s rights in the matter when the court signed and issued the order.
Defendant cites caselaw for the proposition that “[a] party has a constitutional right to due
process—that is, notice that his or her rights will be affected and an opportunity to be heard prior
to the determination affecting those rights.” Indeed, “[b]oth the Michigan Constitution and the
United States Constitution preclude the government from depriving a person of life, liberty, or
property without due process of law.” Reed v Reed, 265 Mich App 131, 159; 693 NW2d 825
(2005). See also US Const, Am XIV, § 1; Const 1963, art 1, § 17. “The purpose of any notice is
to give the opposite party an opportunity to be heard.” White v Sadler, 350 Mich 511, 518; 87
NW2d 192 (1957).
MCR 3.207 governs ex parte and temporary orders. Subrule (B) includes the following
provisions:
(1) Pending the entry of a temporary order, the court may enter an ex parte
order if the court is satisfied by specific facts set forth in an affidavit or verified
pleading[2] that irreparable injury, loss, or damage will result from the delay
required to effect notice, or that notice itself will precipitate adverse action before
an order can be issued.
(2) The moving party must arrange for the service of true copies of the ex
parte order on the friend of the court and the other party.
(3) An ex parte order is effective upon entry and enforceable upon service.
* * *
(5) An ex parte order providing for child support, custody, or visitation . . .
must include the following notice:
“NOTICE:
“1. You may file a written objection to this order or a motion to
modify or rescind this order. You must file the written objection or motion
with the clerk of the court within 14 days after you were served with this
2
Verification of a pleading may be accomplished by “oath or affirmation of the party or someone
having knowledge of the facts stated,” MCR 1.109(D)(3)(a), or a signed statement to the effect
that the signer declares “under the penalties of perjury” that the signer has examined the document,
and that “its contents are true” according to the signer’s “best . . . information, knowledge, and
belief,” MCR 1.109(D)(3)(b).
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order. You must serve a true copy of the objection or motion on the friend
of the court and the party who obtained the order.
“2. If you file a written objection, the friend of the court must try to
resolve the dispute. If the friend of the court cannot resolve the dispute and
if you wish to bring the matter before the court without the assistance of
counsel, the friend of the court must provide you with form pleadings and
written instructions and must schedule a hearing with the court.
“3. The ex parte order will automatically become a temporary order
if you do not file a written objection or motion to modify or rescind the ex
parte order and a request for a hearing. Even if an objection is filed, the ex
parte order will remain in effect and must be obeyed unless changed by a
later court order.”
Again, plaintiff filed her emergency motion to authorize out-of-country travel on July 18,
2019. With the motion, plaintiff provided three exhibits. Exhibit 1 was a copy of a death certificate
indicating that plaintiff’s mother died in Macomb County on July 2, 2019, and listing Polish names
for the place or location of disposition of the body. Exhibit 2 was a copy of an e-mail from plaintiff
to defendant, dated July 17, 2019, and stating, in three separate paragraphs, “This is my 2 weeks
vacation time with Laura: July 20–August 3, 2019. We are going to Tarnow, Poland. Please
provide me with Laura’s passport ASAP.” Exhibit 3 consisted of a proposed ex parte order.
Plaintiff filed a proof of service indicating that a copy of the motion was “served upon the
Defendant directly via First-Class Mail . . . as well as via email” on July 18, 2019.
On July 19, 2019, the day after plaintiff filed her emergency motion, the trial court entered
the proposed ex parte order, which stated that, “pursuant to the Judgment of Divorce and given the
recent passing of the maternal grandmother, the Plaintiff shall be allowed to exercise uninterrupted
summer parenting time to travel to Tarnow, Poland from July 20, 2019 through August 3, 2019,”
and that “Defendant shall immediately provide the minor child’s passport to the Plaintiff for the
purpose of this international travel.”
Not in dispute is that plaintiff’s motion engendering the subject ex parte order was neither
itself verified nor accompanied by an affidavit, thereby failing to satisfy MCR 3.207(B)(1), and
that plaintiff’s proposed order, and thus the order the court entered, did not include the notice
provisions spelled out under MCR 3.207(B)(5). In affirming the decision to grant the ex parte
order, the trial court noted in relation to plaintiff’s failure to observe some of the particulars of
MCR 3.207(B):
Significantly, Defendant has not established the failure to procure an
affidavit or verified statement in support of the motion was—in light of Plaintiff’s
counsel’s schedule—other than harmless error or resulted in any prejudice.
Therefore, Plaintiffs failure to comply with MCR 3.207(B)(1) is excused.
Moreover, . . . Defendant’s repeated unashamed refusals were unwarranted and the
same outcome of the emergency motion would have resulted if defendant had
appeared for a hearing on the motion.
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The parties blame each other for plaintiff’s last-minute resort to an emergency motion for
an ex parte order: defendant on the ground that plaintiff could have initiated legal action several
days earlier upon the emergence of the parties’ disagreement, and plaintiff on the ground that
defendant unreasonably rebuffed her repeated attempts to obtain his consent to the child’s going
abroad for two weeks. The trial court concluded that defendant withheld his approval
unreasonably, and credited plaintiff with repeatedly attempting to obtain defendant’s consent
without resorting to litigation. Defendant recounts his stated reasons for objecting to a two-week
absence, but does not assert that the trial court’s factual conclusions were contrary to the great
weight of the evidence. In any event, we note that, at the very least, the trial court and the plaintiff
seemed to appreciate better than defendant the policy preference for avoiding litigation in favor of
negotiated resolutions. See US Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n, 484
Mich 1, 24; 795 NW2d 101 (2009) (recognizing the “compelling policy . . . to limit litigation and
promote settlements”); Neal v Oakwood Hosp Corp, 226 Mich App 701, 705; 575 NW2d 68 (1997)
(“[t]he purpose of the notice requirement is to promote settlement without the need for formal
litigation”); Jackson v Barton Malow Co, 131 Mich App 719, 722; 346 NW2d 591 (1984) (“this
state has a very strong policy favoring settlements”).
In arguing that the trial court was too forgiving of plaintiff’s failure to satisfy some of the
requirements of MCR 3.207, defendant relies on Ryan v Ryan, 260 Mich App 315; 677 NW2d 899
(2004). In that case, this Court noted that “our Supreme Court has determined, with respect to
medical malpractice cases, that when a [statutorily] required affidavit is absent or defective, the
complaint, standing alone, is insufficient to commence a medical malpractice action,” and, in light
of that instruction, held that “a petition for emancipation filed without the statutorily mandated
affidavits and documents is insufficient to commence an emancipation action.” Id. at 338. This
Court further noted that the trial court had “excused the lack of affidavits and documents,” and,
before examining the trial court’s reasons for doing so and finding them unsatisfactory, noted that
“the statute does not allow the filing of the affidavits and documents to be excused.” Id., citing
MCL 722.4a. Defendant thus suggests that this Court treat the requirement of MCR 3.207(B)(1)
that a petition for an ex parte order be verified or supported by an affidavit as no more amenable
to being excused by the court than similar statutory requirements relating to medical malpractice
or emancipation actions.
However, the existence of avenues for obtaining ex parte orders results from the
recognition that sometimes a party presents a court with a bona fide emergency compelling the
court to issue an order without waiting for normal adversarial processes to play themselves out,
and thus that a court entertaining a petition prompted by such unusual pressures should be at liberty
to recognize the principle, as recited by the United States Supreme Court in a different context,
that “ ‘sound procedure often requires discretion to exact or excuse compliance with strict rules,’
” Walker v Martin, 562 US 307, 320; 131 S Ct 1120; 179 L Ed 2d 62 (2011) (emphasis added),
quoting 16B Wright, Miller, & Cooper, Federal Practice & Procedure § (2d ed, 1996), § 4028, p
403. See also Chisnell v Chisnell, 99 Mich App 311, 321-324; 297 NW2d 909 (1980) (failure to
verify a pleading in a divorce action is a relatively minor procedural defect and thus, in the absence
of manifest injustice, does not warrant reversal on appeal). With all of the above in mind, we
discern no evidentiary or clear legal error on the trial court’s part in issuing the ex parte order.
V. SUA SPONTE CONSIDERATION OF PARENTING TIME DETERMINATION
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Defendant next argues that the trial court abused its discretion when it decided to consider
the issue of permanent custody of LKK’s passport following the de novo evidentiary hearing. We
disagree.
MCR 3.215 covers referee hearings. MCR 3.215(E)(4) states that “[a] party may obtain a
judicial hearing on any matter that has been the subject of a referee hearing and that resulted in a
statement of findings and a recommended order by filing written objection,” which must “include
a clear and concise statement of the specific findings or application of law to which an objection
is made.” In the event of such judicial follow up, MCR 3.215(F)(2) provides:
To the extent allowed by law, the court many conduct the judicial hearing
by review of the record of the referee hearing, but the court must allow the parties
to present live evidence at the judicial hearing. The court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which
no objection was filed;
(b) determine that the referee’s finding was conclusive as to a fact to which
no objection was filed;
(c) prohibit a party from introducing new evidence or calling new witnesses
unless there is an adequate showing that the evidence was not available at the
referee hearing;
(d) impose any other reasonable restrictions and conditions to conserve the
resource of the parties and the court.
In this case, a referee hearing took place following plaintiff’s and LKK’s return from
Poland on August 5, 2019. The result was a proposed order with two enumerated
recommendations. The second granted plaintiff $1,112.50 in attorney fees connected with
obtaining the ex parte order. The first responded to plaintiff’s request for permanent custody of
the subject child’s passport as follows:
1. With regard to the issue of the minor child’s passport, the Judgment of
Divorce is very clear. Listed under the parenting time provision in the Judgment
of Divorce, it is an issue that is modifiable. Parties’ current situation does not arise
to a change of circumstances warranting a modification of the court’s current order
regarding the passport. Therefore, that request is denied.
Defendant, who obviously had no reason to object to the above recommendation, objected to only
the recommendation that he pay plaintiff’s attorney fees. Plaintiff filed no objections of her own,
including over the recommendation that defendant retain custody of the passport.
At a subsequent November 1, 2019 evidentiary hearing, plaintiff’s attorney elicited from
plaintiff that LKK had a passport, that the consent judgment of divorce provided that defendant
was the custodian of the passport, and that defendant was entitled to “48 hours[’] notice for like
Canada travel, and then 30 days[’] notice for outside of U.S. travel.” When counsel asked about
passport problems in earlier years, defense counsel objected, stating, “I don’t understand what the
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passport issue has do with the matter at hand with respect to attorney fees.” The trial court
overruled the objection, noting that the passport was “the subject of a number of the emails which
have been admitted as part of the joint exhibits, that the passport has to be provided so [LKK]
could travel with her mother to Poland.”3 Plaintiff’s counsel went on to elicit that plaintiff had to
resort to retaining legal counsel in order to obtain access to the child’s passport in 2018, and then
that plaintiff had similar problems in connection with the instant case.
Later in the proceeding, while defense counsel was eliciting from defendant that he had
agreed to a consent order to resolve an issue with the child’s travel in 2018, the trial court stated,
“I’m not sure how it’s relevant to today’s hearing, which is, you know, whether [plaintiff’s
attorney’s] fees are reasonable and whether his refusal to allow [LKK] to travel and turn over the
passport was frivolous or not.” Thereafter, plaintiff’s counsel elicited from defendant on cross-
examination that the 2018 consent order came about only after plaintiff had filed a motion, and
that the order called on defendant to release the passport “[r]ight away,” but that as of the day after
the order was signed, plaintiff was still asking for it. When defendant stated that there were
logistical problems involved, the trial court intervened:
No, it sounds like logistics are pretty darn easy. You’re all on this side of
town. And so, . . . I don’t know exactly what, when your daughter was going back
and forth, that you just couldn’t tuck it into her backpack when she’s hopping out
of the car, or getting in, if you were seeing her during this period of time. But,
seems pretty straightforward. And I don’t know when mom’s plane, off the top of
my head, was leaving, and why it was important to have the passport by a certain
time. But, I mean, the fact that you’re here arguing over this stuff does not make
either of you look very responsible, because most parents don’t argue about this
kind of stuff. Most parents are more reasonable and work with each other.
In closing argument, plaintiff’s counsel stated that, at a time when plaintiff should have
been arranging for travel along with “family services and memorials and grieving,” plaintiff was
“battling back and forth for eight days with her ex-husband on getting the passport and being able
to take her daughter to Poland for two weeks” and that, “[w]hen someone should be grieving and
dealing with family, she shouldn’t be fighting with her ex-husband about travel to Poland with her
daughter and getting a passport.”
The trial court concluded the evidentiary hearing by announcing that it was taking the
matter under advisement, and that a written opinion would follow. As noted, the written opinion
and order that followed not only awarded plaintiff attorney fees, but also awarded her
custodianship of the child’s passport.
Defendant filed a motion for reconsideration in connection with both facets of the decision
below, which the trial court denied. In the motion, defendant cited authority for the proposition
3
The court further indicated with some level of dissatisfaction that, after it ordered defendant to
provide plaintiff with the passport, defendant proceeded to leave it for her under a planter. The
court noted: “I would assume that’s relevant at that point, because the child could not travel without
her passport.”
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that because plaintiff did not object to the referee’s recommendation that defendant retain custody
of the child’s passport, she was not entitled to a judicial hearing on that question. But at issue here
is not whether plaintiff was entitled to further consideration of that issue, but whether the trial court
acted within its broad discretion under MCR 3.215(F) by choosing to reach and decide the
question. Defendant argued that “[e]ven if Plaintiff was somehow allowed to ‘piggy-back’ her
silent objections to the referee’s denial of her motion . . . respecting control of the child’s passport
onto Defendant’s objections to the referee’s attorney fee decision, due process would require that
a party not be surprised by a judicial ruling on an issue that was not articulated or argued.”
In denying reconsideration, the trial court stated as follows:
Significantly, Defendant acknowledges [the] Referee . . . addressed
Plaintiffs request “to serve as the custodian of the minor child’s passport moving
forward.” At the evidentiary hearing held November 1, 2019, Plaintiff testified as
to her difficulty in obtaining the minor child’s passport from Defendant in both
2018 and 2019. On each occasion, Plaintiff stated she needed to retain counsel to
obtain the minor child’s passport from Defendant. Defendant objected to the
relevancy of Plaintiff’s testimony and the objection was overruled. Defendant
subsequently testified to and was cross-examined on his claimed cooperation in
providing the minor child’s passport to Plaintiff on each occasion.
Inasmuch as both parties raised and argued the issue of compliance with the
Consent Judgment of Divorce provision regarding the minor child’s passport, the
Court could properly consider and determine Plaintiff would henceforth have
possession of the minor child’s passport. See Sturgis v Sturgis, 302 Mich App 706,
708-709; 840 NW2d 408 (2013) (noting MCR 3.205(F)(2) allows a trial court to
expand the scope of a de novo hearing to “impose any other reasonable restrictions
and conditions to conserve the resources of the parties and the court”) and MCL
552.507(4) (allowing trial court to sua sponte expand the de novo hearing to include
“any matter that has been the subject of a referee hearing” [emphasis added]).
As noted, the Consent Judgment of Divorce provides that Defendant would
retain the minor child’s passport. However, the Consent Judgment of Divorce also
required Defendant to provide the minor child’s passport to Plaintiff for
international travel and precluded either party from traveling to a country that is not
party to the Hague Convention.[4] In light of these specific provisions allowing
international travel, Defendant’s argument (and proposed supporting evidence) that
his continued possession of the minor child’s passport would somehow preclude
Plaintiff from absconding with the minor child wholly lacks merit.
4
“The Hague Convention seeks to protect children from the harmful effects of cross-border
abductions (and wrongful retentions) by providing a procedure designed to bring about the prompt
return of such children to the State of their habitual residence.” Hightower, Caught in the Middle:
The Need for Uniformity in International Child Custody Dispute Cases, 22 Mich St Int’l L Rev
637, 639-640 (2014) (quotation marks and citation omitted).
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Therefore, the Opinion and Order dated November 12, 2019 properly
awarded Plaintiff possession of the minor child’s passport.
On appeal, defendant asserts that the parties were not allowed to present evidence on the
passport issue at the referee hearing, citing the transcript of that hearing generally, but without
specifying any page or pages. In fact, plaintiff’s attorney announced at the start of the referee
hearing the intention to address “who’s going to be the custodian moving forward of the passport,”
and then went on to do so with reference to facts of record, or implied offers of proof, relating to
the parties’ history of problems managing the child’s passport. Neither the referee nor defendant
expressed any objections. Defense counsel argued in kind, asserting that “father tells me mother
was deemed a flight risk” in Illinois proceedings, which was why the parties’ consent judgment of
divorce ended up “detailing the control of the passport being vested in father.” Defense counsel
further pointed out that plaintiff had dual citizenship, owned real property in Poland, and was now
“married to a Polish National,” and argued that those considerations and the parties’ antagonistic
relationship “creates a danger of a flight risk.” The transcript includes no indication that either
party wished to bring evidence beyond the existing record on the issue.
Further, the trial court did not wholly introduce the issue of custody of the child’s passport,
but rather cited the development of that issue at the referee hearing, and also the evidence presented
at the evidentiary hearing relating to the parties’ problems sharing the passport. The court was
thus exercising its broad prerogatives under MCR 3.215(F)(2) to rely on the record of the referee
hearing, as supplemented at the court’s discretion, when it concluded that “the Court could
properly consider and determine Plaintiff would henceforth have possession of the minor child’s
passport.”
Defendant further protests that the trial court reached the passport issue “not on its own
motion, but after the de novo hearing had already concluded,” thus emphasizing that the latter
hearing came about in response to the single objection to the referee’s recommendations that the
parties articulated, which was defendant’s objection to the award of attorney fees, and thus the trial
court appeared to be open to entertaining arguments about passport management only as they
related to the reasonableness of defendant’s reluctance to consent to plaintiff’s travel plans for the
child. Defendant cites authority that stands for the proposition that parties seeking a judicial
hearing on objections to referee recommendations are obliged to specify their objections and
provide the opposition with notice, see MCR 3.215(E)(4) and (5), and suggests that the trial court
erred in reaching the passport issue without providing such notice. However, defendant cites no
authority for the proposition that the objection and notice requirements set forth for the parties
apply to the court as well. Moreover, MCL 552.507(4) states as follows:
The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon motion
of the court. The request of a party shall be made within 21 days after the
recommendation of the referee is made available to that party.
Bearing directly on this issue is that the authorization to bring about “a de novo hearing on any
matter that has been the subject of a referee hearing” extends to the court on its own motion, as the
instant trial court noted. It is further instructive that the statutory timing constraint for such a
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motion applies only to parties, not courts, thus suggesting that a court has greater flexibility with
regard to such action.
For all of the above reasons, we reject defendant’s claim that the trial court improperly
considered and decided anew plaintiff’s request for custody of the subject child’s passport.
VI. PLAINTIFF’S REQUEST FOR ATTORNEY FEES
Defendant next contends that the trial court clearly erred and abused its discretion by
finding that defendant’s objections to plaintiff’s requests to take the parties’ daughter to Poland
for two weeks were unreasonable, and thus that his defenses to her resort to legal process in the
matter were frivolous and cause for a sanction of attorney fees. We disagree.
This Court reviews a trial court’s award of attorney fees for an abuse of discretion. In re
Condemnation of Private Property for Highway Purposes, 221 Mich App 136, 139-140; 561
NW2d 459 (1997). Where attorney fees are concerned, an abuse of discretion occurs where the
result lies outside the range of reasonable and principled outcomes. Maldonado v Ford Motor Co,
476 Mich 372, 388; 719 NW2d 809 (2006). “A trial court’s finding that an action is frivolous is
reviewed for clear error.” Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d 245 (2002).
The parties’ consent judgment of divorce includes the following provision:
8. The parents agree to abide by, and therefore this Court orders, the
following Parenting Principles in connection with the custodial and parenting plan
for their child:
* * *
b. The parents shall cooperate to the extent which may be
appropriate under the circumstances in accommodating one another
should one wish to have the minor child for some special event or
occasion or an extended vacation.
Again, plaintiff filed her emergency motion to authorize out-of-country travel on July 18,
2019. The motion included a request that the trial court “entertain the imposition of attorney fees,”
while explaining that, because of time pressure, no specific amount was yet specified. The
August 5, 2019 referee hearing resulted in a proposed order with two enumerated
recommendations. The first opined that there had not been a sufficient change of circumstances
to warrant granting plaintiff’s request for permanent custody of the child’s passport. The second
responded to plaintiff’s request for attorney fees as follows: “Plaintiff’s request for attorney fees
is granted. Plaintiff’s attorney submitted his billing statements. The fees for obtaining the ex parte
order were $1,112.50. Fees in that amount are granted to Plaintiff payable by Defendant.” As
noted, in the end, the trial court increased the amount of attorney fees charged to defendant to
$6,395—now covering fees incurred since the original referee recommendation. As defendant
emphasizes in his reply brief, he contests not the reasonableness of the amounts involved, but
rather the trial court’s determination that he was responsible for those amounts because of having
maintained a frivolous position below.
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“Michigan follows the ‘American rule,’ according to which “attorney fees generally are
not recoverable from the losing party as costs in the absence of an exception set forth in a statute
or court rule expressly authorizing such an award.” Haliw v Sterling Hts, 471 Mich 700, 706-707;
691 NW2d 753 (2005), citing MCL 600.2405(6). MCR 3.205(D)(2)(b) specifically authorizes a
party to a domestic relations action to request attorney fees when “the attorney fees and expenses
were incurred because the other party refused to comply with a previous court order, despite having
the ability to comply . . . .” Further, the court rule that covers judicial hearings following referee
hearings specifies that “[i]f the court determines that an objection is frivolous . . . the court may
assess reasonable costs and attorney fees.” MCR 3.215(F)(3). A position is frivolous if “(1) the
party’s primary purpose was to harass, embarrass, or injure the prevailing party, or (2) the party
had no reasonable basis upon which to believe the underlying facts were true, or (3) the party’s
position was devoid of arguable legal merit.” Cvengros v Farm Bureau Ins Co, 216 Mich App
261, 266-267; 548 NW2d 698 (1996), citing MCL 600.2591(3)(a).
In this case, the trial court noted the parties’ mutual obligation to cooperate to the extent
appropriate under the circumstances when one of them wishes to have LKK in connection with a
special occasion, and also that plaintiff was entitled to two weeks’ uninterrupted vacation with
LKK each summer. The court further explained as follows:
Plaintiff’s mother unexpectedly died while visiting Plaintiff. Inasmuch as
her mother was from Poland and all Plaintiff’s family resides in Poland, she
naturally sought to take her mother home for a memorial service and burial. To
this end, Plaintiff immediately notified Defendant of her mother’s death and
requested to take the minor child to Poland for two weeks for the funeral services
as soon as it could be arranged. Plaintiff would repeat her request several more
times over the ensuing two weeks, including a request to utilize her summer
parenting time.
Defendant unreasonably refused Plaintiff’s request. His purported
justification, that removing the minor child from summer school would be
detrimental, wholly lacks any merit. Indeed, he did not even try to contact the
minor child’s teachers until after the Ex Parte Order had already been procured.
Defendant’s justification is nothing more than after-the-fact attempt to defend his
groundless refusals. It is clear that his only reason in doing so was to harass
Plaintiff. He was thinking only of himself and the additional pain he could inflict
on Plaintiff and not what was in the minor child’s best interest.
The minor child’s first-grade report card does not indicate any areas of
concern. She was either meeting or approaching standards/expectations in each
identified subject matter. She also successfully completed the Kuman Level 4A
Reading Program on May 21, 2019. She is now in second grade and there is no
evidence even suggesting she is having any problems at school. [Her first-grade
teacher] testified that she only recommended summer school as an option so the
minor child’s progress would not regress [and that] she advised both parties that
the minor child could also continue reading at home.
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Summer school only ran four days per week for three hours each day. The
students only spent part of that time on reinforcing academic activities; the
remainder was spent playing and having lunch.
When Plaintiff contacted [the summer-school teacher] about missing
summer school, [the teacher] understood the circumstances (something lost on
Defendant) and said she could send the work to Plaintiff for the minor child to do
on her own. In a moment of clarity, Defendant did finally acknowledge[] there
were other alternatives available if the minor child missed summer school.
Therefore, Defendant’s actions in this matter were clearly frivolous and
violated the Consent Judgment of Divorce.
On appeal, defendant takes issue with the trial court’s findings only insofar as he insists
that his lack of cooperation over plaintiff’s travel ambitions were in fact driven by the child’s need
for the academic and linguistic benefits of minimally interrupted summer school, but defendant
does not challenge the court’s finding that defendant “did not even try to contact the minor child’s
teachers until after the Ex Parte Order had already been procured.” That finding, along with the
court’s detailed attention to the child’s recent and unproblematic academic record, and recognition
that even defendant acknowledged that there were alternative ways to gain the benefits of summer
school, support the trial court’s conclusion that defendant had other, more cynical motives for
refusing to cooperate with plaintiff at that time.
For these reasons, defendant has failed to show that the trial court clearly erred by
concluding that defendant’s general lack of cooperation with plaintiff as the latter endeavored to
arrange to travel with the child to Poland in order to attend funeral services for the child’s
grandmother was unreasonable. The trial court did not err in concluding that defendant violated
his obligation under the divorce judgment to cooperate as appropriate in such a situation, that
defendant’s defenses to the ex parte order were ill-intentioned and not factually supported, and
that they were therefore frivolous. Defendant has thus failed to show that the trial court’s decision
to hold him responsible for plaintiff’s attendant attorney fees was an abuse of discretion.
VII. DEFENDANT’S REQUEST FOR ATTORNEY FEES
Defendant next contends that the trial court abused its discretion when it declined his
request for attorney fees. We disagree.
Defendant bases his argument mainly on his having had to respond to an emergency motion
for an ex parte order to allow the parties’ daughter to travel to Poland, when the motion was neither
verified nor accompanied by an affidavit, thereby failing to satisfy MCR 3.207(B)(1), and the
accompanying proposed order did not include the notice of rights set forth in MCR 3.207(B)(5).
We concluded above that the trial court was within its rights when it expressly excused those
deficiencies, or treated them as harmless error. Here, we reiterate that, because plaintiff’s failures
to comply perfectly with the dictates of MCR 3.207(B) were largely time pressures resulting from
defendant’s refusal to cooperate with plaintiff, and because defendant has not shown that he
suffered any prejudice as a consequence of those procedural irregularities, the trial court
reasonably overlooked the imperfect compliance with MCR 3.207(B) and proceeded with the case.
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Defendant’s claim for attorney fees is otherwise largely a manifestation of his disagreement with
the trial court’s decision to award attorney fees instead to plaintiff, appellate objections we rejected
above. Indeed, defendant having failed to bring any error on the part of the trial court to light, we
can discern no entitlement to attorney fees on his part. On every issue, plaintiff is properly the
prevailing party in this case, and this Court may reject defendant’s claim for attorney fees on that
basis alone. See Johnson v USA Underwriters, 328 Mich App 223, 248; 936 NW2d 834, 847
(2019) (“it is a fundamental principle that attorney fees and costs may only be awarded to the
prevailing party”), citing MCL 600.2591(1) and MCR 2.625(A)(1).
VIII. CONCLUSION
We discern no clear legal error or palpable abuse of discretion on the trial court’s part for
modifying the consent judgment of divorce without consideration of the UCAPA or best-interest
factors from the Child Custody Act because the modification did not impact custody or parenting
time. The same reasoning applies to defendant’s argument that the trial court failed to consider
whether there was proper cause or a change of circumstances to warrant the modification. We
further discern no abuse of discretion or clear legal error on the trial court’s part for granting
plaintiff’s ex parte order despite her failure to abide certain procedural formalities, nor for the
court’s decision to revisit custodianship of LKK’s passport on its own initiative and on the basis
of all of the evidence. Lastly, the trial court did not clearly err in concluding that defendant’s
objections to plaintiff’s requests to travel with LKK were frivolous, and in granting plaintiff’s
motion for attorney fees and denying defendant’s motion for attorney fees on that basis.
Affirmed. As the prevailing party, plaintiff may tax costs. MCR 7.219(A).
/s/ Karen M. Fort Hood
/s/ Christopher M. Murray
/s/ Michelle M. Rick
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