Jeremy John Merecki v. Gloria Lynn Merecki ( 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
JEREMY JOHN MERECKI, FOR PUBLICATION
April 1, 2021
Plaintiff-Appellee, 9:10 a.m.
v No. 353609
Macomb Circuit Court
Family Division
GLORIA LYNN MERECKI, LC No. 2009-003389-DM
Defendant-Appellant.
Before: K. F. KELLY, P.J., and STEPHENS and CAMERON, JJ.
STEPHENS, J.
Defendant appeals by leave granted the trial court’s February 25, 2020 order denying
defendant’s objection to the Friend of Court (FOC) referee’s November 18, 2019 recommended
order regarding custody and parenting time.1 We reverse and remand for further proceedings
consistent with this opinion.
I. BACKGROUND
Plaintiff and defendant have three children, CO, SM, and CH (collectively, “the children”).
After the parties’ divorce in 2010, plaintiff and defendant were awarded joint legal custody of the
children, and plaintiff was awarded sole physical custody of the children. On May 1, 2017,
defendant filed a motion to modify custody due to allegations that plaintiff physically, mentally,
and verbally abused the children. It was revealed in the FOC’s subsequent investigation of the
allegations, that the Department of Health and Human Services (DHHS) had previously filed
multiple petitions against plaintiff that also alleged that plaintiff had abused the children. In May
2017, DHHS placed the children with defendant. The trial court referred the motion to change
custody to the FOC for its recommendations. In January 2018, the FOC referee recommended that
defendant be granted sole legal and physical custody. The referee acknowledged that there was
1
Merecki v Merecki, unpublished order of the Court of Appeals, issued August 6, 2020 (Docket
No. 353609).
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an established custodial environment with the plaintiff but found that there were circumstances
warranting a review of that custodial arrangement and that eight of the best-interests factors set
forth in MCL 722.23 weighed in favor of defendant. On January 31, 2018, the trial court entered
a consent order adopting the recommendations of the FOC referee. The order affirmed the award
of sole legal and physical custody of the children to the defendant and granted plaintiff supervised
parenting time noting that the DHHS petitions against plaintiff had been dismissed on August 30,
2018.
On November 8, 2019, plaintiff filed a motion to set aside the January 31, 2018 consent
order, or, alternatively, for change of custody. Plaintiff argued in part, that he had previously
consented to a change in custody to defendant under duress. Plaintiff alternatively argued that his
progression in unsupervised parenting time and family counseling constituted a change in
circumstance that warranted a redetermination of custody. In support of his motion, plaintiff
attached three letters written by court-appointed counselor, Laura Henderson, that stated plaintiff
exhibited appropriate, caring, supportive, and even-tempered behavior when visiting with the
children.
After a hearing the FOC referee made a written recommendation . Among other things the
recommendation provided
3. Plaintiff’s motion to modify physical custody is denied as Plainitff has failed to
set forth a basis for modification of physical custody.
4. Plaintiff’s motion to modify joint legal custody and parenting time shall be
referred to the Referee Department for facilitation.
On November 18, 2019, the trial court signed an interim order adopting the FOC referee’s
recommendation pursuant to MCR 3.215(G). The defendant filed timely objections to the interim
order. Defendant objected to the failure to dismiss the request for a modification of joint physical
custody because she argued that the plaintiff had demonstrated neither proper cause nor a change
in circumstances. Additionally, the defendant objected to the utilization of facilitation in this
matter where there was a history of significant domestic violence.
The court heard oral argument on the objections to the interim order along with several
other motions that were filed in this case. The court took the legal issue of whether the plaintiff
demonstrated proper cause or a change in circumstances to justify the continuation of the request
to modify joint legal custody and parenting time under advisement. However, the court orally
ruled that facilitation would not be utilized. On January 13, 2020 the court entered an order
formalizing the oral ruling regarding facilitation. Later, on February 25, 2020, the trial court
entered an order that denied defendant’s objections to the referee’s November 18, 2019
recommendation and implicitly allowing the request for modification of joint legal custody and
parenting time to go forward to an evidentiary hearing and a ruling on the merits. The trial court
did not provide a rationale for its decision. This appeal followed.
II. STANDARD OF REVIEW
“We apply three standards of review in custody cases. The great weight of the evidence
standard applies to all findings of fact.” Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183
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(2000). “In a child custody dispute, ‘all orders and judgments of the circuit court shall be affirmed
on appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.’ ” Pennington v
Pennington, 329 Mich App 562, 569-570; 944 NW2d 131 (2019), quoting MCL 722.28.
“Specifically, we review under the great-weight-of-the-evidence standard the trial court’s
determination whether a party demonstrated proper cause or a change of circumstances.” Id. at
570 (citation omitted). “A finding of fact is against the great weight of the evidence if the evidence
clearly preponderates in the opposite direction.” Id. (citation omitted). “An abuse of discretion
standard applies to the trial court’s discretionary rulings such as custody decisions.” Id. “An abuse
of discretion, for purposes of a child custody determination, exists when the result is so palpably
and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment,
or the exercise of passion or bias.” Butler v Simmons-Butler, 308 Mich App 195, 201; 863 NW2d
677 (2014) (citation omitted). “Questions of law are reviewed for clear legal error.” Id. “A trial
court commits legal error when it incorrectly chooses, interprets or applies the law.” Id. (citation
omitted).
III. ANALYSIS
“The purposes of the Child Custody Act, MCL 722.21, et seq., are to promote the best
interests of the child and to provide a stable environment for children that is free of unwarranted
custody changes.” Pennington, 329 Mich App at 570-571 (citation and quotation marks omitted).
“The Child Custody Act authorizes a trial court to award custody and parenting time in a child
custody dispute and also imposes a gatekeeping function on the trial court to ensure the child’s
stability.” Id. at 571 (citation omitted). Under MCL 722.27, “a trial court may modify or amend
a previous child custody order or judgment for proper cause shown or because of change of
circumstances if doing so is in the child’s best interests.” Id. (citation and quotation marks
omitted). “Thus, a party seeking to modify an existing child custody order must first establish
proper cause or a change of circumstances before the trial court may reopen the custody matter
and hold a hearing to assess whether the proposed modification is in the child’s best interests.” Id.
(citation omitted).
On appeal, defendant asserts that plaintiff failed to meet the Vodvarka v Grasmeyer, 259
Mich App 499; 675 NW2d 847 (2003), “proper cause” standard to justify a hearing on a change
of custody. We agree.
In the context of a motion for change of custody, a proper cause or change in circumstance
is a significant circumstance regarding one or more of the best interest factors that has the potential
for a significant effect on the well-being of the child or children whose custody is at issue.2 Id. at
2
In contrast, “a lesser, more flexible, understanding of ‘proper cause’ or ‘change in circumstances’
is applicable to a request to modify parenting time. Specifically, the very normal life change factors
that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types
of considerations that trial courts should take into account in making determinations regarding
modification of parenting time.” Marik v Marik, 325 Mich App 353, 367-368; 925 NW2d 885
(2018) (quotations and internal citations omitted).
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511-514. The movant bears the burden to “prove by a preponderance of the evidence the existence
of an appropriate ground[.]” Pennington, 329 Mich App at 572 (citation omitted).
[I]n order to establish a “change of circumstances,” a movant must prove
that, since the entry of the last custody order, the conditions surrounding custody
of the child, which have or could have a significant effect on the child’s well-being,
have materially changed. Again, not just any change will suffice, for over time
there will always be some changes in a child’s environment, behavior, and well-
being. Instead, the evidence must demonstrate something more than the normal life
changes (both good and bad) that occur during the life of a child, and there must be
at least some evidence that the material changes have had or will almost certainly
have an effect on the child. This too will be a determination made on the basis of
the facts of each case, with the relevance of the facts presented being gauged by the
statutory best interest factors. [Vodvarka, 259 Mich App at 513-514.]
The court’s initial error was to bifurcate physical and legal custody, denying a hearing on
one and referring the other to facilitation. In Vodvarka, this Court did not distinguish between the
requisite standard for changing physical custody and legal custody. Id. at 509-514. Rather, this
Court exclusively referred to the issue as involving “custody.” Id. While the Child Custody Act
draws a distinction between physical custody and legal custody,3 Vodvarka referenced “custody”
as logically referencing both legal and physical custody. Since its announcement, this Court has
applied the standard articulated in Vodvarka without distinguishing between physical custody and
legal custody. See e.g. Corporan v Henton, 282 Mich App 599, 606-609; 766 NW2d 903 (2009).
Based upon the foregoing, the trial court committed clear legal error by treating the two forms of
custody differently.
To compound this error, neither the FOC referee nor the trial court made any factual
findings as to whether proper cause or a change in circumstances occurred. We cannot adduce
evidence of a proper cause or a change in circumstances sufficient to justify the trial court’s
reconsideration of legal custody from the record below. At best, plaintiff presented evidence that
Henderson authored three letters indicating that plaintiff interacted with the children in an
appropriate, caring, supportive, and even-tempered manner, and seemed to show that plaintiff’s
relationship with the children improved. While these letters were relevant to the statutory best-
interest factor of love, affection, and other emotional ties between the parties and the children, the
improvement in the relationship between the children and plaintiff was not of such magnitude that
it has had a significant effect on the well-being of the children. Notably, Henderson did not
recommend a modification of custody in the letters. Additionally, an August 30, 2018 order of
parenting time review provided that plaintiff and the children were required to participate in family
3
See Grange Ins Co of Michigan v Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013) (“[W]e
are cognizant that the Child Custody Act draws a distinction between physical custody and legal
custody: Physical custody pertains to where the child shall physically ‘reside,’ whereas legal
custody is understood to mean decision-making authority as to important decisions affecting the
child's welfare.”).
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counseling with Henderson until such time as Henderson released plaintiff and the children from
counseling. Henderson had not released plaintiff and the children from counseling, thereby
indicating that plaintiff’s relationship with the children had not progressed such that counseling
was no longer necessary.
Plaintiff did offer Henderson’s July 5, 2019 letter which indicated that CO reported having
a conflicted relationship with defendant and defendant’s new husband. This conflict relates to the
best interests of CO. However, while the letter notes conflict, the concerns expressed by CO are
not significant, catastrophic, nor suggestive of conflagration. The record reflects that CO had been
in therapy for several years prior and it is reasonable to expect that Henderson would have made
greater note of this issue if it was a significant circumstance of the Vodvarka magnitude.
Additionally, Henderson’s July 5th letter does not indicate when this conflict arose such that it
would have been a change of circumstance since the January 2018 custody determination.4
Without more information there was no basis upon which to find the conflict warranted revisiting
custody of CO, much less all of the children.
Furthermore, there was not a change in circumstances regarding the relationship of the
children with plaintiff such that the trial court could reopen the custody matter and hold a hearing
to assess whether the proposed modification was in the children’s best interests. In order to
establish a change of circumstances, a movant must prove that the conditions surrounding the
custody of the child have materially changed since the entry of the last custody order. Vodvarka,
259 Mich App at 513. The only evidence presented by plaintiff that occurred after the entry of the
January 31, 2018 custody order were the three letters authored by Henderson. Again, those letters
noted improvement in the relationship between plaintiff and the children, but Henderson did not
recommend a modification of custody nor did she release the plaintiff and the children from
counseling. The trial court’s determination that plaintiff demonstrated a change in circumstances
sufficient to justify reconsideration of legal custody was not supported by the evidence.
We also note that the evidence was also mostly singularly focused on CO and otherwise
referred to the children collectively. On remand, we remind the trial court to address any review
of the best interests of each child individually. Wiechmann v Wiechmann, 212 Mich App 436,
440; 538 NW2d 57 (1995); Foskett v Foskett, 247 Mich App 1, 11; 634 NW2d 363 (2001).5
4
See Vodvarka, 259 Mich App at 501 “[I]n determining if a change of circumstances had occurred,
the trial court was limited to basing its decision on events occurring after entry of the most recent
custody order.”).
5
See Foskett, 247 Mich App at 11–12:
Incumbent on the trial court therefore, is the duty to apply all the statutory best
interests factors to each individual child. To fully discharge this duty, and arrive at
a decision that serves a particular child’s best interests, trial courts must recognize
and appreciate that implicit in the best interests factors themselves is the underlying
notion that as children mature their needs change. And, as a child progresses
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Kirsten Frank Kelly
/s/ Thomas C. Cameron
through the different life stages, what they need from each parent necessarily
evolves therewith. Thus, what may be in the “best interests” of an eight-year-old
child may materially differ from the “best interests” of that child's thirteen-year-old
sibling. Accordingly, the best interests factors must be fluid enough in their
application to accommodate these differences.
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