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### STATE OF MICHIGAN

COURT OF APPEALS

TODD PECK,

Plaintiff-Appellee, UNPUBLISHED October 10, 2016

v No. 332814 Newaygo Circuit Court RACHEL PATRICIA ANN PECK, also known as RACHEL PATRICIA ANN CONLEY, LC No. 14-052965-DM

Defendant-Appellant.

Before: S AWYER , P.J., and M ARKEY and O’B RIEN , JJ.

P ER C URIAM

.

Defendant, Rachel Patricia Ann Peck (also known as Rachel Patr icia Ann Conley), appeals as of right the circuit court’s January 22, 2016 order placing one of the parties’ minor children into “Teen Challenge,” a boarding school, as requested by plaintiff, Todd Peck. On appeal, defendant argues that the circuit court erred in failin g to make a best-interests determination regarding the child’s placement in Teen Challenge after an evidentiary hearing. Because we agree, we remand for further proceedings. 1

1 At the outset, we reject plaintiff’s argument that the issues raised in this appeal are moot because he was awarded sole physi cal custody of the parties’ mi nor children after the order at issue in this appeal was entered. The parties nevertheless mai ntain joint legal custody, and defendant continues to have significant parenting time includin g overnights with the children. Moreover, as illustrated below, the custody of the child at iss ue in this case has changed several times since the parties’ divorce, and it seems likely that it w ill continue to change into the future. See, e.g., Wiechmann v Weichmann , 212 Mich App 436, 441 n 4; 538 NW 2d 57 (1995). We also reject plaintiff’s cursory argum ent that defendant’s appeal is frivolous for the reason that he has failed to adequately support his position. Cheesman v Williams , 311 Mich App 147, 161; 874 NW2d 385 (2015). Furthermore, as discussed below, defendant’s appellate arguments have
merit.-2- Plaintiff and defendant were married for several years and sha re custody over five children. Only one of those child ren, the parties’ 16-year-old daughter, is at issue in this appeal. 2 After the parties divorced, they w ere awarded joint legal and p hysical custody, but it appears that the children primarily resided with plaintiff. 3 Several months after the divorce, however, plaintiff determined that he no longer wished to have the 16-ye ar-old daughter live primarily with him after he apparently caught her cutting herself and mai ntaining a relationship with an older boy. According to defendant , plaintiff “was very upset” and dropped her off with the following explanation:

“I am dropping [the child] off. It’s going to break my heart. I don’t want to do this, but she wants to live with you. I’m afraid she is going to hurt one of the boys or me. She’s out of control.” He said, “We need to speak to the attorneys and have something written up. I don’t want to be legally resp onsible for her because of what I see coming.”

Consequently, the child began living primarily with defendant, and plaintiff had approximately two-and-a-half hours of parenting time with her e ach week. Changing the child’s primary residence unsurprisingly led to a variety of other chan ges in the child’s daily life. Most pertinent to this appeal, however, is the change to the child’s education. 4 The child had been homeschooled throughout her entire life, and, once she began li ving primarily with defendant, she began attending public school in September 2015. 5 The transition from homeschool to public school did not go as well as the parties hoped, and, acc ording to her October 2015 progress report, the child was failing two classes, had three a bsences, and had two tardies. The

2 The child is currently 16 years old, but she was 15 years old at the time the order appealed was
entered.

3 Plaintiff’s residence was noted a s the primary residence, but defendant had parenting time each weekday and on alterna ting weekends. As noted above, however, the record reflects that the parties’ custody arrangement has changed since the order at iss ue in this appeal was entered.

4 While the parties and the circuit court appeared to define the dispute as educational in nature, it is clear from the record that the parties’ dispute goes well be yond the child’s educ ational needs. For example, plaintiff devoted several minutes of the hearing t o offering testimony regarding whether or not the 16-year-old child, who was 15 years old at t he time of the hearing, was permitted to watch movies that included Will Ferrell such as Talladega Nights . Plaintiff also
devoted a substantial amount of time during the hearing to offe ring testimony regarding whether the 16-year-old child was aware that defendant may have been ha ving a sexual relationship
“outside the bonds of wedlock.”

5 The record reflects that the child stopped cutting herself onc e she began residing with
defendant. It also reflects that she had obtained employment a s a “hostess,” but it is clear that plaintiff had an issue with that employment, and the circuit co urt apparently found working as a hostess “very questionable,” opin ing that, “if [she] had a daug hter, [she]’d want her working at an insurance agency or real estate office or law office.” It i s unclear to us what, if any, impact her employment as a hostess had on her education.-3- record reflects that defendant met with all of h er teachers and made a variety of efforts to address the child’s struggles, but the trial court ultimately found her efforts insufficient. According to plaintiff, he wished to place the child in Teen Challenge, whic h was located in “central Indiana” and “specializes in young girls” “ that have, like, sexual addic tions and that are cutting themselves,” because “the Lord told [him] to do it.” 6 After a hearing, the circuit court granted plaintiff’s motion, removing the child from public school and p lacing her into Teen Challenge.
Defendant’s motion for reconsider ation was subsequently granted , but the circuit court ultimately concluded that its original deci sion was correct. This appeal followed.

“Under the Child Custody Act, MCL 722.21 et seq ., ‘all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judg e made findings of fact against the great weight of evidence or committed a palpable abuse of discr etion or a clear legal error on a major issue.’ ” Pierron v Pierron , 486 Mich 81, 85; 782 NW2d 480 (2010), quoting MCL 722.28. “Above all, custody disputes are to be resolved in the child’s best interests,” Eldred v Ziny , 246 Mich App 142, 150; 631 NW2d 748 (2001), and “[t]his stand ard cannot be abrogated, even in fairness to the parties,” Soumis v Soumis , 218 Mich App 27, 34; 553 NW2d 619 (1996). “The Child Custody Act ‘applies to all circuit co urt child cust ody disputes and actions, whether original or incidental to othe r actions,’ ” and it “provides th at when parents share joint legal custody—as the parties do here—‘th e parents shall share decisio n-making authority as to the important decisions affecting th e welfare of the child.’ ” Pierron , 486 Mich at 85, quoting MCL 722.26(1). “[W]here the parents as joint custodians cannot agr ee on important matters such as education, it is the court’s duty to determine the issue in the best interests of the child.”

Lombardo v Lombardo , 202 Mich App 151, 159; 507 NW2d 788 (1993).

[W]hen considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change wo uld modify the
established custodial environmen t of that child. In making thi s determination, it is the child’s standpoint, rather than that of the parents, that i s controlling. If the proposed change would modify the established custodial environm ent of the child, then the burden is on the parent proposing the change to establish, by clear and convincing evidence, that the change is in the child’s best interests. Under such circumstances, the trial court must consider all the best- interest factors because a case in which the proposed change would modify the cu stodial environment is essentially a change-of-custody case. On the ot her hand, if the proposed change would not modify the established custodial environment of the child, the burden is on the parent proposing the change to esta blish, by a preponderance of the evidence, that the change is in the child’ s best interests. In addition, under those circumstances, although the trial court m ust determine
whether each of the best-interest factors applies, if a factor does not apply, the

6 An exhibit provided by plainti ff below, which appears to be pa rt of a printed page from a website, describes the program, in pertinent part, as follows: “Indiana Teen Challenge is a residential boarding school program for girls ages 13-17. We w ork with girls involved in alcohol, drug and substance abuse and behavioral problems such as cutting and bulimia.”-4- trial court need not address it a ny further. In other words, i f a particular bestinterest factor is irrelevant to the question at hand, i.e., wh ether the proposed change is in the best interests of the child, the trial court n eed not say anything other than that the factor is irrelevant. [ Pierron , 486 Mich at 92-93 (emphasis in original).]

In this case, although a hearing was held, it is apparent that the circuit court committed clear legal error. During the January 7, 2016 hearing, the cir cuit court was clear in expressing its belief that it need not determine whether the proposed change w ould modify the established
custodial environment:

The questions, I think, before the Court are not overtly custo dy questions. I think [defendant’s counsel] co rrectly surmised the two questi ons before Court in
his brief. Should the child con tinue at [public school] and sh ould the minor child
continue to reside with Defendant . The Court does not believe it has to change the original custody order in ord er to reach a decision in this case. I believe that the parties ought to leave here today still with joint legal an d joint physical custody.

However, the Court is not at all satisfied that the child shou ld remain in the care and custody of the Mother . . . .

* * *

The Court therefore orders as fo llows. Joint legal and joint physical custody shall remain in place. The child should be enrolled at Teen Challenge in Indiana as soon as possible. The couple’s tax refund should be used to pay for the expenses. If a parent has to advance expenses from their own f unds in the meantime, then that parent should be reimbursed those funds as soon as the tax refund arrives. The parties are to file their return for 2014 as soon as possible but not later than ten days from today’s date. [Plaintiff] shall h ave authority to sign all document’s necessary to overs ee [the child]’s attendance, h er medical matters, her financial matters, including collections of and . . . also personal matters, such as collection of all items need in preparation for [the child]’ s attendance at Teen Challenge.

* * *

Counsel, I point out I’ve not determined . . . environmental. I’ve not dealt with a threshold issue of whether there’s been a change of circ umstances. This is not a custody case. I’ve not determined who had the family env ironment or
whatever. I don’t think those i ssues are relevant. This is mo re an education type
situation.-5- However, “[w]hen resolving important decisions that affect the welfare of the child,” which
includes educational decisions, “the court must first consider whether the proposed change would modify the established custodial environment.” Pierron , 486 Mich at 85 (emphasis added). 7 Thus, the circuit court’s failure to do so constituted a misapp lication of the applicable law, and a remand for a new hearing for tha t reason would ordinarily be re quired.

In this case, however, a remand for that reason would not nece ssarily be required because, in addressing defendant’s motion for reconsideration, the circuit court considered whether the proposed change would modify the established custod ial environment as it should have done originally:

With regard to the legality of ordering the child down to Teen Challenge, the
Court’s satisfied it was the ri ght decision. The Court is sati sfied that it was the
lawful decision. I do not believ e that it affected the custodi al environment. When it comes to custodial environment, I think, Vodvarka is one of the chief cases. I was going through one of my files, here, to see if I have that case in front of me.

But it’s the Court’s opinion that we have not changed either t he legal or physical custody of these parties. But the order that I signed sending the child down to Indiana, frankly, reiterat ed that the parties maintain . . . joint legal and joint physical custody of the minor child. I think, it is equi valent to a parent sending their child to band camp, or to a military school for a longer duration than what a band camp probably would be, or most any other place.

Thus, on reconsideration, the ci rcuit court corr ectly completed the first step of the applicable analysis, i.e., determining wh ether the proposed change would m odify the established custodial
environment. Pierron , 486 Mich at 85-86, 92. However, even if the proposed change would not modify the established custodial environment, the circuit court was nevertheless required to
address the best interests of th e child, and it failed to adequ ately do so. Id . Thus, the circuit
court’s failure to do so constitu ted a misapplication of the ap plicable law, and a remand for a new hearing for that reason is required. 8 See Foskett v Foskett , 247 Mich App 1, 12; 634 NW2d

7 It appears, given the context, that the circuit court’s refere nces to “[e]nvironmental” and a “family environment” were actually references to an established custodial environment. With that understanding, it is apparent that the circuit court assum ed it need not decide that “threshold
issue.”

8 The circuit court did mention th e best interests of the child, stating as follows: “In this case, I have so many different factors th at it’s overwhelming. I think this child is at risk. When we talk about the best interests for this child, ultimately that’s what I’m trying to do in every one of these
domestic cases.” This statem ent, in our view, is insufficient.-6- 363 (2001); see also Rivette v Rose-Molina , 278 Mich App 327, 330-333; 750 NW2d 603 (2008). 9

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ David H. Sawyer /s/ Jane E. Markey
/s/ Colleen A. O’Brien

9 “On remand, the trial court should consider up-to-date informa tion and any other changes in circumstances arising since the trial court’s original custody order.” Kessler v Kessler , 295 Mich App 54, 63; 811 NW2d 39 (2011) (citation and internal quotation marks omitted). Additionally, we would note that at one point during the proceedings, a heari ng referee appointed a guardian ad litem to represent the child in this matter (who recommended that the child remain in defendant’s care), but the record is unclear as to whether the circuit court continued that appointment. Given the instabil ity of the child’s life—plainti ff left her with defendant in September 2015 because he could not “control” her, she was remo ved from defendant’s custody and ordered to participate in a boarding school approximately f our months later, and she is now ordered to return to plaintiff’s care as the parent with sole p hysical custody—we encourage the circuit court to consider whether a guardian ad litem is necess ary in hopes of better protecting the
child’s best interes ts going forward.