Michigan Appellate Decisions in Family Law Cases
Both the Michigan Supreme Court and the Court of Appeals have issued several published and unpublished decisions over the past several months. Of particular interest is a Supreme Court decision interpreting notice provisions of the federal Indian Child Welfare Act, a Court of Appeals decision in a third party custody case where the noncustodial parent asks to modify custody, and an appellate decision regarding who may filing an action for annulment.
In Re C.I. Morris, and In Re J.L. Gordon, __ S Ct __ (docket no. 142759 and 143673, 5/4/2012)
The Michigan Supreme Court held that if a court terminates the parental rights to a child of Native American descent and fails to notify the child’s tribe of the case as required by the federal Indian Child Welfare Act (ICWA), then the proper remedy is to conditionally reverse the lower court’s decision and remand the case so that the notice requirement can be satisfied.
The Supreme Court addressed the standard for triggering the statute’s requirement of notice to the tribe and held “that virtually any criteria on which tribal membership might be based suffices to trigger the 25 USC 1912(a) notice requirement.” The Court also held “that a parent of an Indian child cannot waive the separate and independent rights of an Indian child's tribe, as guaranteed by ICWA. Finally, the Court addressed sufficient notice documentation and held “that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.”
Frowner v Smith, __ Mich App __ (docket no 305704, 4/26/2012)
In this case, "primary residence" of the minor child was awarded to the maternal grandparents. Father filed a motion to change custody and alleged as change of circumstances the child's preference and poor academic performance. The trial court found that father failed to meet his burden to show proper cause / change of circumstances and dismissed the motion without an evidentiary hearing on the best interest factors. The court of appeals reversed and remanded for an evidentiary hearing.
The Court of Appeals held that "the constitutionally based presumption in favor of a natural parent supplies the threshold showing [of proper cause or change of circumstances] required for an evidentiary hearing." In its analysis, the court recognized the fundamental constitutional rights of fit parents to the care of their children. The court cited the Hetzel and Hunter decisions, both finding that the parental presumption of MCL 722.25(1) controls over the established custodial environment presumption in MCL 722.27.
The threshold having been met, the court remanded for a best interest hearing with these instructions:
The court may award continuing custody to the third parties only if the third parties establish by clear and convincing evidence that it's not in the child's best interests for father to have custody. In doing so, the third parties must prove that all relevant factors, including the established custodial environment and the best interest factors, clearly and convincing show the child's best interests require continued placement with them rather than the child's father.
Estate of Mullin v Duenas, __ Mich App __ (docket no 303192, 4/17/2012)
Plaintiffs filed an annulment action as the personal representatives of the estate of Ellen Mullin. The action was dismissed by the trial court because plaintiffs failed to prove that Mullin was legally incompetent to enter into a marriage contract. The decision was affirmed by the court of appeals. Further, the court held that an action for annulment based on fraud can only be brought by one of the parties, not by a third party.
Mullin was diagnosed with cancer and admitted to the hospital on October 24, 2009. On October 29, 2009, Defendant came to the hospital and that evening he and Plaintiff were married. The following day, one of Mullin’s personal representatives, met with an attorney so Mullin could execute a durable power of attorney. The attorney signed and attested that Mullin “appears to be of sound mind and under no duress, fraud, or undue influence…” Unfortunately, Mullin died on November 8, 2009. When her family learned of the marriage, they filed a compliant for annulment.
In Michigan, there is a strong presumption of validity of a marriage, which can only be overcome by clear and positive proof that the marriage was not valid. Quinn v Quinn, 4 Mich App 536, 538 (1966). MCL 552.1 provides that a marriage entered into by a party not capable in law of contracting is absolutely void. A person who is mentally incompetent is incapable of contracting and the test is whether the person “possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which the person is engaged” and “that the person had no reasonable perception of the nature or terms of the contract.” In re Erickson Estate, 202 Mich App 329, 332 (1993).
Here, Plaintiff failed to proof Mullin’s incompetence. First, Mullin had a long-term romantic relationship with Defendant; it was not a situation where she met and married him while gravely ill. Second, Mullin’s treating oncologist testified she was alert at times, could make decisions with support and did not alert the hospital that she was incompetent. Third, her medical records indicated she was alert and able to comprehend her surroundings. Fourth, the attorney who executed the power of attorney found Mullin of sound mind. Plaintiff’s expert witness only established that Mullin was proscribes drugs with a high probability to interfere with her thought process, but not that it did and this was insufficient to overcome the presumption of validity.
Plaintiffs also argued they had standing to contest the marriage based on fraud or duress. MCL 552.35 is the only statutory provision allowing a third party to petition to annul a marriage if the party “was not capable in law of contracting.” In construing this and other statutes regarding actions for annulment, the court held that an annulment based on fraud can only be brought by the defrauded spouse while both parties are living” and not by heirs or third parties.
Mitchell v Mitchell, ___ Mich App ___ (docket no. 306559, 5/15/2012)
The Court of Appeals held that the trial court clearly stated on the record its determination that proper cause had been established before proceeding with its custody analysis of the statutory best interest factors. The trial court's determination of proper cause was related to the statutory best interest factors and constituted facts that have or could have a significant impact on the children's lives. Thus, the trial court properly granted a modification of the parties' judgment of divorce as to child custody.
Defendant argued that the proper cause determination should have been made before the hearing to modify custody and relied on Mitchell I, the court’s previous unpublished decision. However, the court did not hold that a separate hearing had to be conducted before a custody decision may be revisited, nor is one necessarily required. The trial court is only required to preliminarily determine whether proper cause or a change of circumstances exists before reviewing the statutory best interest factors.
Gagnon v Glowacki, __ Mich App ___ (Docket No. 303449, 3/6/2012)
The Court of Appeals affirmed the trial court's order granting plaintiff-mother's request to move the child's domicile to Windsor. Further, the court affirmed the trial court's finding that the established custodial environment (ECE) with both parents would not be affected by the move and thus the court was not required to consider the best interest factors.
First, the trial court properly applied the factors under MCL 722.31(4). Here, plaintiff was relying on public assistance and had no car. In her move to Windsor, she would gain access to her family, a car, a job and a place to live with her father until she could afford an apartment. The Court found that the facts supported a finding that the move would improve both plaintiff's and the child's live.
Second, the trial court's finding that the move would not change the ECE was not error. Under Brown v Loveman, 260 Mich App 576 (2004), after granting a change of domicile, the court must determine whether there will be a change in the ECE and if so, determine whether the relocating parent can prove by clear and convincing evidence that the change is in the child's best interests. Defendant argued that the move would turn him into a "weekend parent" due to the increase travel time. However, the new parenting time schedule was essentially the same and gave defendant an extra weekend each month. The loss of weekday overnight and occasional lunches was insufficient to destroy the ECE between defendant and the child. The court also refused to find that even if there was no change in the ECE, the court should be required to consider whether the move was in the child's best interests. Defendant's reliance on Pierron v Pierron, 486 Mich 81 (2010) was misplaced because Pierron addressed the parents' inability to agree regarding an important decision affecting the child (education), not a change of domicile.
The dissent would have found that the move did affect the ECE under it's analysis of the facts and believes that a parent's request to move a child to a foreign country is quantitatively and qualitatively different from an interstate move because more is involved in traveling across foreign borders.