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            In the case of Shimel v. McKinley, (DocketNo. 329144), the Michigan Court of Appeals remanded the matter to the trial court because the order changing the child’s school district altered the joint-custodian’s parenting time from every other week to alternating weekends and resulted in a change in the child’s custodial environment which requires the moving party to prove by clear and convincing evidence that the change was in the child’s best interests. 

            Following a more complete hearing, the trial court received additional evidence, considered the statutory best-interest factors, and found by clear and convincing evidence that primary custody with plaintiff was in the child’s best interests. On the second appeal, the Michigan Court of Appeals affirmed the lower court’s decision.

FACTS:

            The parties shared joint physical and legal custody of the child after their divorce until

late 2015, when they no longer resided in the same city and agreed that the child should

attend a single school rather than different schools pursuant to her alternating residence with the

two parties, but couldn’t agree on which school. The trial court entered an order purporting to modify parenting time and finding it was in the child’s best interests to “attend Onaway Public Schools and have her principal residence with plaintiff during the school year.”

            Because, according to the COA, the trial court’s order effectuated a change in the child’s established custodial environment, thus the decision was reversed and remanded for further hearings.

A Change in the Established Custodial Environment:

            A party seeking to change a child’s custody arrangement must first present the court with a preponderance of evidence to show that there is a proper cause for such change under MCL 722.27(1)(c). In other words, the party 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 are normal life changes. It must be shown that the material changes have had or will almost certainly have an effect on the child.

            In this case, the original order was entered when the child was an infant. During the early years the child resided alternatively with each party and was able to attend two different preschools. The parties agreed that she should attend one kindergarten school but couldn’t agree on the school and they lived too far from each other for the child to alternatively live with each parent.

            Because of these facts, there was proper cause to revisit the original custody arrangement within the definition as set forth in Vodvarka v Grasmeyer, 259 Mich App 499. The COA, after a review of the court’s findings on the best interests factors as stated in MCL 722.23, held that the trial court committed no error. 
           In affirming the lower court, the COA concluded that 1) the trial court’s best-interests findings were not against the great weight of the evidence, and 2) that the trial court did not abuse its discretion by finding that in total those findings constituted clear and convincing evidence that it was in the child’s best interests to award primary custody to plaintiff.

             A divorce judgment has been entered, with a retirement plan involved. How long do the parties have to enter their QDRO (qualified domestic relations order) to effectuate the division of the retirement accounts? This question is commonplace after a judgment of divorce. A recent opinion from the Michigan Court of Appeals is changing the way this question is answered. As a general rule under MCL 600.5809, the statute of limitations to enforce a judgment is ten years. While this is the general rule, Joughin v Joughin, ___ Mich App ___ (2017), Docket 329993, is changing the way this statute of limitations is viewed.

A judgment of divorce requires that a QDRO be filed in order to receive the benefits from a retirement plan associated with the divorce. This is subject to the ten year statute of limitations as outlined by MCL 600.5809, which states:

(1) A person shall not bring or maintain an action to enforce a noncontractual money obligation unless, after the claim first accrued to the person or to someone through whom he or she claims, the person commences the action within the applicable period of time prescribed by this section.

(3) Except as provided in subsection (4), the period of limitations is 10 years for an action founded upon a judgment or decree rendered in a court or record of this state, or in a court of record of the United States or of another state of the United States, from the time of the rendition of the judgment or decree.

In Joughin, the Plaintiff and Defendant were divorced April 28, 2003. For normal purposes this would begin the accrual period on the QDRO. Then 12 years after the judgment of divorce was entered, on July 6, 2015, the Plaintiff entered her proposed QDROs to the court in order to receive the retirement benefits she was entitled to in the judgment of divorce. The Defendant argued that under MCL 600.5809, the retirement plan is unrecoverable because the statute of limitations of ten years had already expired. The Plaintiff in response argued that the accrual does not begin until a triggering event happens, and that in regards to the retirement the triggering event would be the Defendant’s retirement making the funds accessible.

The Michigan Court of Appeals in Joughin concluded “the entry of the proposed QDRO is not an action to enforce a noncontractual money obligation” Id. at 3. Since this is not a noncontractual money obligation, MCL 600.5809 will not apply to a QDRO. The effect this has is it now allows the Plaintiff to file this QDRO after the limitations period would have been up and still makes it viable for recovery.

In Joughin, Judge Jansen provided a lengthy dissent as to why she disagreed with the majority opinion stating “I believe that entry of a QDRO is an action to enforce a judgment of divorce and subject to the applicable statute of limitations.” Id. at 4. She also discussed that three other states have dealt with identical types of cases and all are resulting with different precedents. Judge Jansen spoke to the idea that it must first be determined when the recipient would gain access to the funds from the plan, and begin the ten year accrual period.
No application was filed in the Supreme Court.

• The Court of Appeals said that a fee for apprising clients (potential adoptive parents) of the birth mother is prohibited under 710.54(2) because it was “assisting a potential adoptive parent in evaluating a parent or guardian or adoptee or referring a prospective adoptive parent to parent or guardian a child for the purpose of adoption. In re MJG slip op at 10. However, this fee simply informs prospective adoptive parents that the birth mother has responded to the adoptive parents profile and is not “evaluating” or “referring.” Moreover, most of the “apprising” does not pertain to the Michigan adoption because only one of the birth mothers (many times out of hundreds) will be the birth mother of the adoptee.
• The Court of Appeals also said that "presenting an adoption opportunity to a client" is prohibited under MCL 710.24(2). In re MJG slip op 11. This is not “evaluating” or “referring.” Instead, it is merely sharing the profile the birth mother has found on the potential adoptive parents on the internet. It is accepting the contact from the birth mother and passing it onto the potential adoptive parents/client.
• The Court of Appeals concluded that “introducing the birth mother to the potential adoptive parents/client” is the equivalent of referring the birth mother to the client and is prohibited under MCL 710.54(2). In re MJG slip op at 12. This poses the same problem as the examples cited above.
• Various services do not fall under MCL 710.54(3) and are, thus, not allowed according to the Court of Appeals. In re MJG slip op at 12. The Court of Appeals includes referring clients to agencies, social workers, and attorneys; managing the adoption plan; and communicating with legal entities In re MJG slip op at 213. But see note 10 on counseling where the Court of Appeals noted that parents in general can benefit from counseling does not mean that the counseling is in connection with the adoption.
• The Court of Appeals held that American Family Media lacked standing because they were not included on the claim of appeal (the Court of Appeals denied the motion to amend the claim of appeal), but the marketing fees which American Family Media charged in that case cannot be disallowed per the Court's decision in MJG.  In Re BGP/JSP slip op at 2. Since Circuit Court has no authority to preclude the marketing fees charged by the media company, the Court of Appeals should have allowed American Family Media to participate in the appeal. In re BGP/JSP slip op at 7.