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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DOUGLAS SCOTT DUBIN,

Plaintiff-Appellee,

UNPUBLISHED

January 30, 2018

v No. 339175

Washtenaw Circuit Court

CONTESSA LYNN FINCHER, LC No. 12-000833-DM

Defendant-Appellant.

Before: MURPHY, P.J., and SAWYER and BECKERING, JJ.

PER CURIAM.

In this domestic relations action, defendant, Contessa Lynn Fincher, claims an appeal by 

right from the trial court’s order denying her motion for expanded parenting time and a 

reunification plan. For the reasons explained below, we conclude that defendant’s appeal is not 

properly before this Court as an appeal of right because there is no sense in which the trial 

court’s order “affect[s] the custody of a minor.” Therefore, the order is not a final order for 

purposes of MCR 7.202(6)(a)(iii) and MCR 7.203(A)(1). Accordingly, we dismiss defendant’s 

appeal.

This appeal has taken a convoluted path to our docket. On July 11, 2017, defendant filed 

both an application for leave to appeal (Docket No. 339172) and this claim of appeal of right 

(Docket No. 339175) from the same order. Accompanying the filings were apparently identical 

briefs that raised the same issues. The Court denied defendant’s application for leave to appeal 

“for lack of merit in the grounds presented.” Douglas Scott Dubin v Contessa Lynn Fincher, 

unpublished order of the Court of Appeals, entered October 25, 2017 (Docket No. 339172).

Plaintiff, Douglas Scott Dubin, argued in a brief filed in Docket No. 339175 that defendant did 

not have an appeal of right, and this Court did not have jurisdiction, because the order defendant 

appealed from was not a final order in a domestic relations case as defined in MCR 

702(6)(a)(iii). On December 19, 2017, we ordered defendant to file a supplemental brief 

addressing this jurisdictional issue. Dubin v Fincher, unpublished order of the Court of Appeals 

entered December 19, 2017 (Docket No. 339175). We also allowed plaintiff to file a

supplemental brief. Id. After reading both parties’ supplemental briefs, and defendant’s reply to 

plaintiff’s supplemental brief, we conclude that the order appealed from does not affect custody, 

is not a final order appealable by right, and, therefore, this Court does not have jurisdiction 

pursuant to MCR 7.203(A)(1).
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The interpretation of a court rule and whether this Court has jurisdiction over an appeal 

are questions of law subject to review de novo. Id. at 58. The question of jurisdiction in this 

case rests on interpretation of MCR 7.202(6)(a)(iii) and MCR 7.203. Interpretation of a court 

rule follows the same general rules of statutory interpretation; therefore:

The goal of court rule interpretation is to give effect to the intent of the drafter, 

the Michigan Supreme Court. The Court must give language that is clear 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. [Varran v Granneman (On Remand), 312 

Mich App 591, 599; 880 NW2d 242 (2015) (citations omitted).]

The relevant portion of MCR 7.203(A)(1) provides for this Court’s exercise of 

jurisdiction over an appeal of right filed from “[a] final judgment or final order of the trial court 

or court of claims, as defined in MCR 7.202(6).”1 A “final judgment” or “final order” in a 

domestic relations matter is “a postjudgment order affecting the custody of a minor.” MCR 

7.202(6)(a)(iii). Michigan recognizes physical custody and legal custody. Madson v Jaso, 317 

Mich App 52, 64; 893 NW2d 132 (2016). “Physical custody pertains to where the child shall 

physically ‘reside,’ whereas legal custody is understood to mean decision-making authority as to 

important decisions affecting the child's welfare.” Varran, 312 Mich App at 604 (quotation 

marks and citation omitted). With regard to parenting time, “[w]hen a motion addresses the 

amount of time a parent spends with a child such that it would potentially cause a change in the 

established custodial environment (ECE),

2 an order regarding that motion is a final order under 

MCR 7.202(6)(a)(iii).” Id. at 603-604.

Although the trial court did not address the issue, the record supports a determination that 

the child’s established custodial environment is with plaintiff, who has sole legal and physical 

custody. Defendant has one hour of supervised parenting time every 14 days. The order 

appealed from denied defendant’s request for expanded parenting time and a “reunification 

plan”; it did not change the status quo nor is there any evidence indicating that the modification 

defendant requested in her motion had the potential to change the ECE. Because the order in no 

way affects the physical or legal custody of the minor, or changes the ECE, it is not a “final 

order” pursuant to MCR 7.202(6)(a)(iii).

In her supplemental brief, defendant argues that the nature and scope of the trial court’s 

order affects custody because, by denying defendant’s request for an evidentiary hearing, the 

order diminishes defendant’s exercise of her constitutional right to the care, custody, and control 

of her child without affording her procedural due process. Defendant errs by adopting a legal 

paradigm inapplicable to the facts of this case. Defendant points to a number of decisions from 

 1 There are two exceptions to this provision, neither of which applies here.

2 An ECE exists where, over an appreciable time, “the child naturally looks to the custodian in 

that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 

722.27(1)(c).
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the United States Supreme Court that address issues significantly distinguishable from the one at 

hand to assert that the High Court has used “custody” to refer to the constitutional right of a fit 

parent to the care, custody, and control of her child.

3

 By equating “custody” to the entire 

constellation of constitutionally protected parental rights, defendant is urging this Court to 

consider her situation parallel to that of a fit parent whose parental rights have been 

unconstitutionally restricted. However, nothing in the trial court’s order changed defendant’s 

constitutional rights as a parent. In fact, the order changed nothing at all; rather, it signified that 

defendant had not made the threshold showing necessary to revisit the terms of the court’s 

current parenting-time order.

Defendant contends that statutes governing the modification of parenting-time orders, 

i.e., MCL 722.27a and MCL 722.27, establish an insurmountable obstacle to the exercise of her 

parental rights, and asserts that “any obstacle to a fair hearing on the issue of custody ‘affects’ 

custody—whether that is a court rule, a statute, or a case.” MCL 722.27a and MCL 722.27

permit a court to modify a previous judgment affecting parenting time where the movant first

shows a change in circumstances or proper cause and, then, that modification is in the best 

interests of the child. Defendant contends that this legal framework is an obstacle to the exercise 

of her parental rights because the only way she can show a “change in circumstances” is to show 

that she is cured of her bipolar disorder, symptoms of which have affected the frequency and 

duration of the parenting time granted by the trial court. Defendant’s assertion regarding what is 

required to proceed to a hearing on whether modification of the current parenting time order is in 

the best interests of the child reflects neither a proper understanding of the law nor a fair 

representation of the requirements set forth by the trial court in this case.

4

 The purpose of 

requiring a change in circumstances or proper cause before modifying a custody or parentingtime order is, among other things, “to minimize unwarranted and disruptive changes” of such 

orders. Shade v Wright, 291 Mich App 17, 28; 805 NW2d 1 (2010), quoting Vodvarka v 

Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003).

To summarize, the trial court’s order denying defendant’s motion for expanded parenting 

time and a reunification plan is not an order that affects physical or legal custody; therefore, it 

 3 Defendant relies on the following for her definition of custody: Stanley v Illinois, 405 US 645; 

92 S Ct 1208; 31 L Ed 2d 551 (1972) (challenging declaration of an unwed father’s children as 

state dependents after the death of their natural mother and without a hearing on the father’s 

parental fitness or proof of neglect); Smith v Org of Foster Families, 431 US 816; 97 S Ct 2094; 

L Ed 2d 14 (1977) (finding sufficient the procedures for removing foster children from foster 

families); Michael H v Gerald D, 491 US 110; 109 S Ct 2333; 105 L Ed 2d 91 (1989)

(addressing the relative rights of a putative father and the presumed father under California law).

4 The trial court is not required to conduct an evidentiary hearing on change of circumstances or 

proper cause. See Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003). In 

light of the trial court’s familiarity with this matter and given the absence of relevant 

documentary evidence attached to defendant’s motion, we cannot say that the trial court abused 

its discretion by denying her request for an additional hearing to provide evidence that she could

have provided with her motion.
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does not “affect custody” for purposes of MCR 7.202(6)(a)(iii). Accordingly, defendant does not 

have an appeal of right over which the Court could exercise jurisdiction pursuant to MCR 

7.203(A)(1), and the Court has already denied for lack of merit her application for leave to 

appeal.

Dismissed.

/s/ William B. Murphy

/s/ David H. Sawyer

/s/ Jane M. Beckering