-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

RACHEL ANN MELLEMA,

Plaintiff-Appellant, UNPUBLISHED April 21, 2016

v No. 329206 Kent Circuit Court JON MARC MELLEMA, LC No. 13-011868-DM

Defendant-Appellee.

Before: M URRAY , P.J., and S TEPHENS and R IORDAN , JJ.

P ER C URIAM

. In this matter involving the education of this divorced couple ’s children, plaintiff Rachel Ann Mellema appeals as of right the trial court’s August 21, 20 15 order, which states, in pertinent part, that “[t]he [trial c]ourt orders that the child ren’s school enrollment shall continue in the Fremont Public Schools, a nd the issue is not ripe for fu rther determination.”

For the reasons stated below, we do not have jurisdiction over plaintiff’s claim of appeal from this order. In addition, even if we did have jurisdiction over this appeal, (1) plaintiff’s arguments arising from the trial court’s December 17, 2014 orde r are outside the scope of the instant appeal, and (2) she has abandoned any claim arising fro m the trial court’s August 21, 2015 order. Accordingly, we dism iss this appeal for lack of ju risdiction.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

B. LOWER COURT PROCEEDINGS

Plaintiff and defendant Jon Marc Mellema were married on April 29, 2000, and they lived together in Fremont, Michigan, after their marriage. Whi le they were married, they had two children. In November 2012, plaintiff filed for divorce. One year later, in November 2013, the trial court entered a consent judgment of divorce, which pr ovided that plaintiff and defendant would share joint legal and phys ical custody of the minor children. Defendant received parenting time every day after school until 6:15 p.m. If the c hildren did not have school, then defendant received parenting time from 1:00 p.m. until 6:15 p.m . He also received parenting time on alternating weekends and various holidays. Plaintiff r eceived the remainder of the time with the children.

In April 2014, plaintiff moved to Grandville, Michigan. The mo ve ignited a series of-2- filings and hearings concerning th e modification of the parties ’ custody and parenting time along with a dispute about where the children should go to school. U ltimately, in June 2014, plaintiff filed a motion to change the lo cation of the children’s schooli ng from the Fremont Public School District to the Grandville Public School District, which defend ant opposed. In July 2014, a family court referee held a thr ee-day hearing on plaintiff’s mo tion for a change in schools. The referee issued findings and a recommendation on August 25, 2014 . He found no change in the children’s established custodial environment and, as a result, considered whether plaintiff had established, by a preponderance of the evidence, that a change in school districts was in the children’s best interests. He then concluded, based on the bes t-interest factors under MCL 722.23, that the children should a ttend Grandville Public Schoo ls. Additionally, because the change in school districts made it unlikely that defendant woul d be able to exercise after-school parenting time, the referee recommended a change in defendant’s parenting time schedule so that he would have extended parentin g time during the children’s Chr istmas break and a two-hour “weeknight ‘dinner’ parenting time” on a weekly basis during th e school year.

On November 26, 2014, the trial court held a hearing on defend ant’s objections to the referee’s findings and recommenda tion. After the hearing, the trial court reversed the referee’s order based on its findings that (1) plaintiff and defendant ha d a joint established custodial environment, (2) the proposed cha nge in schools altered the cus todial environment, such that plaintiff’s burden was to prove by clear and convincing evidenc e, not by a mere preponderance, that the change in schools was in the best interests of the chi ldren, and (3) plaintiff failed to prove, even by a preponderance of the evidence, that changing s chools was in the children’s best interests. The trial court concl uded that the children should attend Fremont Public Schools, and on December 17, 2014, it entered an order denying plaintiff’s m otion for a change in schools and reversing the referee’s decision. 1 The children returned to the Fremont Public School District shortly thereafter.

After subsequent proceedings not relevant to this appeal, defe ndant filed a motion to modify the parties’ legal and physical custody of the children in March 2015. At an April 2015 hearing, the parties stipulated t hat there had been a change in circumstances that warranted review of the prior custody orde r. Accordingly, the trial cour t ordered that an evidentiary hearing would be held to determine whether there should be a ch ange in custody. Later, in June 2015, plaintiff also filed a motion to change custody.

On July 9, 2015, the date set for the evidentiary hearing, the trial court did not hear any testimony, but, instead, summarized the parties’ in camera discussions. The trial court stated, inter alia , that if there was, ultimately, a change in custody in favor o f plaintiff, it did “not see the issue of school being then ripe again[.]” Additionally, atthe hearing, the parties agreed to participate in mediation to resolve the custody issue. The tri al court then dismissed the matter without prejudice in the event tha t the parties were unable to resolve the custody issue through mediation.

1 Plaintiff filed a motion for reconsideration of the trial court’s order, but she subsequently withdrew this motion.-3- It did not enter an order concerning the matters discussed duri ng the hearing until August 21, 2015. The order reflected the p arties’ agreement to partic ipate in mediation and included provisions concerning their agreement to mediate. Additionally , with regard to the school issue, the trial court stated, “The Cour t orders that the children’s s chool enrollment shall continue in the Fremont Public Schools, and the iss ue is not ripe for determina tion.”

Following the mediation, the parties signed a settlement agree ment concerning the custody of the children on August 12, 2015. After defendant mo ved for entry of a custody order pursuant to the parties’ mediated agreement, the parties signed a consent order, which the trial court entered on September 16, 20 15. The order continued the p arties’ joint legal and physical custody of the children, but modified their parenting time. Pl aintiff received parenting time on alternating weekends from Thursday at 6:00 p.m. until school onMonday and “alternat[ing] Sundays,” meaning “those following [defendant’s] weekend[s],” f rom 6:00 p.m. until school on Monday morning. Defendant received the remainder of the time w ith the children during the school year. During the summer, d efendant received one week inJune, one week and one fourday period in July, and two weeks in August. Plaintiff receive d the remainder of the summertime. The holiday parenting time schedule remained uncha nged.

B. THIS APPEAL

On September 10, 2015, plaintiff filed a claim of appeal from the trial court’s August 21, 2015 order. Thereafter, defenda nt filed a motion to dismiss pl aintiff’s appeal for lack of jurisdiction and on the basis of mootness. Defendant also requ ested damages or sanctions against plaintiff for filing a vexatious appeal. On December 7 , 2015, we denied the motion “without prejudice to [defendant] raising the issue of this Cou rt’s jurisdiction over the claim of appeal before the case call panel[.]” 2 Mellema v Mellema , unpublished order of the Court of Appeals, entered December 7, 2015 (Docket No. 329206). Likewis e, we denied defendant’s request for damages or sanctions. Id

.

II. JURISDICTION

As a threshold issue, we must determine whether we have jurisd iction over this appeal and, if so, the extent of that jurisdiction. We conclude that we do not have jurisdiction over plaintiff’s claim of appeal from the August 21, 2015 order. Fu rther, even if we did, her claims arising from the trial court’ s December 17, 2014 order would no t be properly before this Court.

A. STANDARD OF REVIEW

“The question of jurisdiction is always within the scope of th is Court’s review . . . .” McIntosh v McIntosh , 282 Mich App 471, 483; 768 NW2d 325 (2009) (quotation marks a nd citation omitted; alteration in original). “Whether this Court has jurisdiction to hear an appeal is an issue that we review de novo.” Wardell v Hincka , 297 Mich App 127, 131; 822 NW2d 278

2 Contrary to plaintiff’s characterization of our December 7, 20 15 order in her brief on appeal, we did not conclusively decide tha t we have jurisdiction over t his appeal.-4- (2012). Likewise, “[t]he interp retation and application of a c ourt rule is a question of law that [we] review[] de novo.” Varran ex rel Varran v Granneman , ___ Mich App ___, ___; ___ NW2d ___ (2015) (Docket Nos. 321866, 322437); slip op at 2.

The rules of statutory interpret ation apply to the interpretati on of court rules. The goal of court rule interpretation is to give effect to the inte nt of the drafter, the Michigan Supreme Court. The Court must give language that is c lear and unambiguous its plain meaning and enforce it as written. Each word, unless defined, is to be given its plain and ordinary meaning, and the Court may consult a dictionary to determine that meaning. [ Id . at ___; slip op at 3 (citations omitted).]

B. ANALYSIS

At issue here is whether we have jurisdiction over plaintiff’s appeal of the trial court’s December 17, 2014 or August 21, 2015 orders pursuant to MCR 7.2 03(A)(1). As indicated in plaintiff’s claim of appeal, the only jurisdictional provision that may apply here is MCR 7.202(6)(a)(iii), which provides that any “postjudgment order a ffecting the custody of a minor” “in a domestic relations action” constitutes a “final judgment” or “final order.” Thus, whether this Court has jurisdiction turns on whether the trial court’s August 21, 2015 order from which plaintiff appealed constitutes an “order affecting the custody of a minor.” MCR 7.202(6)(a)(iii); see also Wardell , 297 Mich App at 131.

1. APPEAL AS OF RIGHT FROM TH E TRIAL COURT’S DECEMBER 17, 2014 ORDER

In Rains v Rains , 301 Mich App 313, 321-322; 836 NW2d 709 (2013), we explained that an order in a domestic relations proceeding does not have to ac tually change the custody of a minor in order to affect it. Quoting Wardell , 297 Mich App at 132-133, we noted in Rains our previous reliance on the definition of “affect” in Black’s Law Dictionary (9th ed) and framed the ultimate inquiry as whether a trial court’s order “influences w here the child will live, regardless of whether the trial court’s ultimate decision keeps the custod y situation as is.” Rains , 301 Mich App at 321 (quotation marks omitted). Stated differently, “Und er Wardell , a trial court need not change a custodial arrangement in order for its decision to aff ect custody.” Id . at 323.

Consistent with these principles, we have implicitly recognized in previous cases that a party may appeal as of right an order pertaining to the type or location of a school attended by a divorced couple’s minor children. Parent v Parent , 282 Mich App 152, 153; 763 NW2d 553 (2009) (reviewing an appeal as of right from an order granting a mother’s motion to enroll her child in public school after the parties had agreed to continue homeschooling the child); Pierron v Pierron , 282 Mich App 222, 225, 246-247; 765 NW2d 345 (2009) (reviewin g an appeal as of right from an order requiring that the parties’ children remain enrolled in a particular school district, after one of the parent s sought to enroll the childre n elsewhere, and noting that joint legal custody encompasses shar ed decision-making authority conc erning a child’s education), aff’d 486 Mich 81 (2010); and Lombardo v Lombardo , 202 Mich App 151, 152; 507 NW2d 788 (1993) (reviewing an appeal as of right from an order denying a mother’s motion to enroll the parties’ child in a gifted and talented program). Likewise, in Varran , ___ Mich App at ___; slip op at 6, we recently recognized that, “[b]ased on the plain lan guage of the terms used in MCR-5- 7.202(6)(a)(iii) then, a ‘postjudgment order affecting the cust ody of a minor’ is an order that produces an effect on or influences in some way the legal custody or physical custody of a minor” (emphasis added), and legal custody includes the authori ty to make decisions regarding a child’s education, Pierron , 282 Mich App at 246-247.

Here, plaintiff wanted the children to attend Grandville Public Schools following her move to that area, and defendant wanted the children to remain enrolled in the Fremont Public School District. Plaintiff and defendant had joint legal custo dy over the children, so they shared decision-making authority over important decisions concerning t he children’s welfare, including their education. See Pierron , 282 Mich App at 246-247; Lombardo

, 202 Mich App at 159. Plaintiff and defendant also split parenting time during the we ekdays. Therefore, an order regarding a motion to change the children’s school district not only affected the parents’ joint authority over educational decisions, but also the distance tha t the children would have to travel to school each morning, who would pick up the children from sch ool in the afternoon, and whether the children would attend school in the same community where they resided on school nights. As such, although a change in the children’s school di strict may not have actually involved a change in custody, we conclude that it would have affected the parties’ legal custody of the children by affecting their joint decision-making author ity. See Pierron , 282 Mich App at 246-247; Lombardo

, 202 Mich App at 159. Further, because a change in the children ’s school district would have significantly reduced the amount of time th at defendant spends with the children, such a change had the potential of altering the estab lished custodial environment. See Rains , 301 Mich App at 324.

Thus, the trial court’s order denying plaintiff’s motion to cha nge school districts was an order affecting custody, so as to constitute a final order unde r MCR 7.202(6)(a)(iii) that was appealable by right pursuant to MCR 7.203(A)(1). Accordingly, plaintiff could have appealed as of right the trial court’s December 17, 2014 denial of her moti on to change schools.

2. APPEAL AS OF RIGHT FROM THE AUGUST 21, 2015 ORDER

However, plaintiff did not appeal the trial court’s December 17 , 2014 order. Rather, she filed a claim of appeal from the trial court’s August 21, 2015 order, which solely provided, with regard to the children’s schooling, that “[t]he [trial c]ourt o rders that the c hildren’s school enrollment shall continue in the Fremont Public Schools, and th e issue is not ripe for further determination.” 3 As discussed supra , in general, by continuing the status quo, a denial of a motion concerning custody still may affect custody for purposes of MCR 7.202(6)(a)(iii). See Rains , 301 Mich App at 323-324; Wardell , 297 Mich App at 132-133. But the context of the

3 The rest of the trial court’s August 21, 2015 order pertains t o the parties’ agreement to mediate, the dismissal of the parties’ competing custody motions without prejudice in order to facilitate the parties’ mediation of the issues while leaving open the pos sibility future proceedings if the mediation was unsuccessful, and the effect of a potential paren ting time agreement on future determinations of the children’s established custodial environm ent and future modifications of parenting time. The order also stated, “Any and all prior orde rs of this Court not modified herein or inconsistent hereto shall rema in in full force and effect.”-6- order in this case precludes a finding that the trial court’s A ugust 21, 2015 order constitutes an order affecting custody, such tha t it was appealable as of righ t pursuant to MCR 7.202(6)(a)(iii).

The trial court held a heari ng on July 9, 2015, in response to the parties’ dual motions for a change in custody. The order that it entered on August 21, 2 015 memorialized the trial court’s statements on the record at the hearing, during which it had re iterated the parties’ in camera discussions and stated its conclu sion that the change-in-school s issue would not be ripe again following the parties’ mediation of the custody issue. Especia lly in light of the trial court’s statements at the July 9th hearing and the filings in the lower court record, it is apparent that the provision in the August 21, 2015 order concerning the children’ s school district did not comprise a new determination or a reconsideration of the issue of whethe r the children should remain in the Fremont Public School District, so that the order would be equivalent to a denial of a motion requesting a change in the children’s school district. See Rains , 301 Mich App at 323-324; Wardell , 297 Mich App at 132-133. Rather, it is clear that the trial court was merely stating its position that if
, hypothetically, the parties’ custo dy issues were resolved in fa vor of plaintiff, it would not reconsider the childre n’s school district given the e xhaustive inquiry tha t it previously performed on that issue.

As such, we cannot conclude that the trial court’s statement co ncerning the children’s schools in the August 21, 2015 order was tantamount to an order affecting custody because it merely (1) memorialized the trial court’s decision on July 9, 2 015, that it would not revisit its previous determination concerning the children’s schools and (2 ) indicated, without redetermining or reconsidering th e issue, that the children wou ld remain enrolled in the Fremont Public School District consistent with its previous decision. Thus, this order was not appealable by right. 4 See Varran , ___ Mich App at ___; slip op at 5-6; Rains , 301 Mich App 313, 321-322; Wardell , 297 Mich App at 132-133; Pierron , 282 Mich App at 246-247; Lombardo

, 202 Mich App at 159.

Further, “[a] party cannot wait until the entry of a subsequent final order to untimely appeal an earlier final order.” Surman v Surman , 277 Mich App 287, 294; 745 NW2d 802 (2007). If an order constitutes “a ‘final order’ under MCR 7.2 02(6)(a)(iii) because it was a postjudgment order affecting the custody of a minor, and [the a ppellant] fail[s] to timely file a claim of appeal from that order[,] . . . [the appellant’s] chal lenges to the [prior] order are not properly before this Court,” a nd we lack jurisdiction to addres s those claims. Id . at 293-294. See also McDonald v Stroh Brewery Co , 191 Mich App 601, 609; 478 NW2d 669 (1991) (holding that this Cour t did not have jurisd iction to review is sues related to a prior order from which the plaintiffs did not appeal as of right).

4 Plaintiff does not raise any claims related to the other provi sions of the August 21, 2015 order, which, as indicated supra , all pertain to the parties’ mediation of the custody issues. Likewise, it is apparent that none of those pr ovisions comprise “a postjudgm ent order affecting the custody of a minor,” MCR 7.202(6)(a)(iii), and that plaintiff did not qual ify as an “aggrieved party” with regard to any of those provisions, see MCR 7.203(A). According ly, those provisions do not embody an order from which plaint iff could claim an appeal as o f right. See MCR 7.203(A)(1).-7- Accordingly, although we conclude that a party may, in general, appeal as of right an order granting or denying a motion to change school districts, we hold, based on the specific facts of this case, that we do not have jurisdiction over plain tiff’s appeal because (1) she failed to file a claim of appeal from the trial court’s December 17, 2014 order denying her motion to change schools, and (2) the trial court’s August 21, 2015 order was not an order affecting custody for purposes of MCR 7.202(6)(a)(iii).

3. SCOPE OF THE INSTANT APPEAL

Nevertheless, even if plaintiff was arguably entitled to appeal as of right from the schoolrelated provision in the trial court’s August 21, 2015 order, w e would conclude t hat plaintiff’s claims regarding the trial court’s decision on her motion to ch ange schools are not properly before this Court.

Pursuant to MCR 7.203(A), this Court’s jurisdiction is limited to the issues arising from “the portion of the order with respect to which there is an app eal of right.” Although plaintiff’s purported appeal as of right ari ses from the trial court’s Augu st 21, 2015 order, her only argument on appeal related to that order is that the trial cour t “compounded [its previous] error”—under the December 17, 2014 order—by holding, in plaintiff’s words, “that it would not allow another look at the school change question even if [plain tiff] received primary physical custody of the children.” Likewis e, the rest of her brief is d edicated exclusively to the gravamen of her claims on appeal: that the trial court abused its discre tion when it reversed the referee’s recommended order, denied her motion to change schools, and sen t the children back to the Fremont Public School District, after the children began attend ing the Grandville Public School District pursuant to the referee’s decision, through its December 17, 2014 order

. 5 Therefore, even if we did have jurisdiction over plaintiff’s appeal from t he August 21, 2015 order, our review would be limited to the t rial court’s purported exacerba tion of its previous error under the December 17, 2014 order. See MCR 7.203(A). Again, “[a] party cannot wait until the entry of a subsequent final order to untim ely appeal an earlier final orde r.” Surman , 277 Mich App at 294.

5 Specifically, plaintiff asserts that “[t]he circuit court abus ed its discretion when it based its decision to reverse the referee’s recommendation order on passi on and prejudice against [plaintiff] by focusing on her motive to move to Grandville rather than whether that move was in the children’s best interests[.]” She provides there reasons f or why this decision was an abuse of discretion: (1) the court “looke d behind the act of moving res ulting in a change in school districts to examine the motive behind [plaintiff’s] move”; (2) “its decision was based on passion and bias in favor of [defendant] and his ‘family name’ in Fremo nt”; and (3) its decision was based on passion and bias “against [plaintiff] based on outdate d notions of women’s career decisions.” Notably, even plaintiff’s request for relief in her brief on ap peal pertains solely to her motion to change the children’s schools, which was resolved by the trial court’s December 17, 2014 order, as she asks this Court to remand this case to a dif ferent trial court judge to reconsider the referee’s decision and “determine anew [plainti ff’s] motion to change schools.”-8- Furthermore, plaintiff’s conten tion that the trial court exacer bated its earlier abuse of discretion when it ordered “that the children’s school enrollme nt shall continue in the Fremont Public Schools, and the issue is not ripe for further determina tion,” is tenuous. We can identify only four sentences in her brief on appeal that provide the bas is of her claim that the trial court’s August 21, 2015 decision was in error:

[The trial court indicated that it would hold an evidentiary he aring on the parties’ dual motions for a change in custody, but] [t]he court had alre ady made up its mind about one aspect . . . . It was not going to revisit chan ging the children’s school even if it awarded [pla intiff] primary physical custody.

So, [plaintiff] might have been granted primary physical custo dy, but the court was not about to allow her to ask it to revisit the motio n to change schools. The court had, as it noted, spen t a great deal of time reviewin g transcripts and the referee’s decision, and it woul d not let that work go for naugh t.”

We are unable to discern, from this meager discussion, the spec ific reasons underlying her claim concerning the August 21, 2015 order. At most, we conclude tha t these statements may encompass an argument that the trial court erred in, or had no basis for, declining to reevaluate its prior determination on plaintiff’s motion to change schools or declining to review the issue anew in the future, but plainti ff provides no authority for suc h a claim.

It is well established that:

a mere statement without authority is insufficient to bring an issue before this Court. It is not sufficient for a party simply to announce a p osition or assert an error and then leave it up to this Court to discover and ration alize the basis for his claims, or unravel and elaborate for him his arguments, and the n search for authority either to sustain or r eject his position. Accordingl y, we need not address [such an] issue, and [may ] decline to do so. [ Wilson v Taylor , 457 Mich 232, 243; 577 NW2d 100 (1998) (quotation mar ks, citation, and footnotes o mitted).]

See also Thompson v Thompson , 261 Mich App 353, 356; 683 NW2d 250 (2004) (“It is wellsettled that [a] party may not leave it to this Court to search for authority to sustain or reject its position. Argument must be suppo rted by citation of appropriat e authority. An appellant’s failure to properly address the merits of his assertion of erro r constitutes ab andonment of the issue.”) (quotation marks and citations omitted; alteration in original), citing MCR 7.212(C)(7).

Thus, even if jurisdiction over pl aintiff’s appeal as of right from the August 21, 2015 order could be found, we would deem plaintiff’s claim abandoned

.

III. CONCLUSION

We do not have jurisdiction over plaintiff’s claim of appeal fr om the trial court’s August 21, 2015 order. Further, even if we did have jurisdiction over this appeal, plaintiff’s arguments arising from the trial court’s December 17, 2014 order would be outside the scope of the appeal, and she has abandoned any claims ar ising from the trial court’s August 21, 2015 order.-9- Dismissed.

/s/ Christopher M. Murray /s/ Cynthia Diane Stephens /s/ Michael J. Riordan