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Court Denies Custody Motion


Case: Malish v. Marcelli

Court: Michigan Court of Appeals ( Unpublished Opinion )


Custody; The Child Custody Act (MCL 722.21 et seq.); Proper cause or a change of circumstances; Vodvarka v. Grasmeyer; Normal life changes; Lieberman v. Orr; Whether the trial court should have conducted an evidentiary hearing; MCR 3.210(C)(8) & (D)(1); Award of attorney fees & costs as a sanction; MCR 2.114(D)(3) & (E); Guerrero v. Smith; Reasonableness of the fees; Reed v. Reed; Failure to request an evidentiary hearing on the reasonableness of the fees; Kernen v. Homestead Dev. Co.; Request for remand to a different judge; MCR 7.216(A)(7); Hawkins v. Murphy; Sparks v. Sparks; Presumption that a trial judge is fair & impartial; In re Susser Estate; Actual showing of prejudice required; In re Forfeiture of $1,159,420; Cain v. Department of Corr.


Holding that the trial court’s finding that the defendant-father failed to show proper cause or a change of circumstances was not against the great weight of the evidence, the court affirmed the denial of his motion to change custody, parenting time, domicile, and school enrollment for the parties’ child (A). It also upheld the award of attorney fees and costs to plaintiff-mother as a sanction under MCR 2.114, and rejected defendant’s request for remand to a different judge. The last custody order was the 2/16 divorce judgment. The record showed that “most of defendant’s complaints existed before, or were stipulated to, in” that judgment. One of his main issues was that A was “being harmed by having to move to Canada.” However, it was clear from prior motions he filed that he believed A’s immigration and citizenship status in the U.S. was at risk and that A “was showing signs of illness and anxiety caused by moving to Canada” months before the judgment was entered. Thus, the trial court did not err in finding that as to those arguments, he “was unable to ‘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.’” His arguments as to changes that occurred after the judgment was entered “were limited to issues that were merely normal life changes (medical and dental issues) or would not have a significant effect on” A’s well-being (a teacher’s strike). Further, given its finding that defendant’s allegations “could not establish proper cause or a change of circumstances, even if” they were true, the trial court did not err in failing to conduct an evidentiary hearing. As to the award sanctions, “the trial court did not clearly err in determining that defendant filed his motions and briefs in an attempt ‘to harass [plaintiff] or to cause unnecessary delay or needless increase in the cost of litigation’” in violation of MCR 2.114(D)(3). It reasonably determined that because he “continued to file the same motions and exhibits even after” its warnings, he “was doing so to harass plaintiff or to unnecessarily raise the cost for her to litigate the case.”

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