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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

KIRK CHARLES HERALD,

Plaintiff/CounterdefendantAppellant,

UNPUBLISHED

September 11, 2018

v No. 339530

Ingham Circuit Court

LAURIE MARIE ROZEK, Family Division

LC No. 15-000985-DM

Defendant/CounterplaintiffAppellee.

Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order striking a parenting-time provision from 

the parties’ consent judgment of divorce. We reverse.

The parties married on October 8, 2005, and they had three children during their 

marriage. On January 4, 2016, the trial court entered a judgment of divorce. The judgment of 

divorce documented the parties’ agreement regarding custody and parenting time. It granted 

joint physical and joint legal custody to the parties. It also granted defendant slightly more 

parenting time during the school year and granted the parties equal parenting time during the 

children’s summer break. However, the judgment of divorce also provided that the parentingtime schedule would be adjusted to give the parties equal parenting time beginning in September 

2017.

On May 31, 2017, defendant filed a motion to amend the parties’ judgment of divorce, 

claiming that the provision in the judgment of divorce providing for increased parenting time to 

plaintiff beginning in September 2017 was invalid. Defendant claimed that, because this was a 

change in parenting time, the trial court was required to find proper cause or a change in 

circumstances before allowing the change, which is something the trial court could not have 

done so far in advance of the change. Plaintiff responded that the modification was not a change 

in parenting time requiring proper cause or a change of circumstances because the parties agreed 

to the provision when they signed the judgment of divorce. Following a hearing, the trial court 

granted defendant’s motion and ordered that the provision be stricken from the judgment of 

divorce.
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On appeal, plaintiff argues that the trial court erred in striking the challenged provision 

from the judgment of divorce.1 We agree.

“ ‘Orders regarding parenting time must be affirmed on appeal unless the trial court’s 

findings were against the great weight of the evidence, the court committed a palpable abuse of 

discretion, or the court made a clear legal error on a major issue.’ ” Shade v Wright, 291 Mich 

App 17, 20-21; 805 NW2d 1 (2010), quoting Pickering v Pickering, 268 Mich App 1, 5; 706 

NW2d 835 (2005). This Court applies a similar standard of review to questions regarding 

custody. See Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). “Under the great 

weight of the evidence standard, this Court should not substitute its judgment on questions of 

fact unless the facts clearly preponderate in the opposite direction.” Shade, 291 Mich App at 21. 

A trial court has abused its discretion in a child-custody case if its “decision is so palpably and 

grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, 

or the exercise of passion or bias.” Id. (quotation marks and citation omitted). A trial court has 

committed clear legal error if it “err[ed] in its choice, interpretation, or application of the existing 

law.” Id. (quotation marks and citation omitted).

The Child Custody Act of 1970, MCL 722.21 et seq., governs all child-custody disputes. 

MCL 722.26; Harvey v Harvey, 470 Mich 186, 189, 192; 680 NW2d 835 (2004). “If the parents 

of a child agree on parenting time terms, the court shall order the parenting time terms unless the 

court determines on the record by clear and convincing evidence that the parenting time terms 

are not in the best interests of the child.” MCL 722.27a(2).

Before the trial court can modify a previous custody judgment or order, the moving party 

must demonstrate proper cause or a change of circumstances. MCL 722.27(1)(c); Phillips, 241 

Mich App at 24. If the modification would alter the child’s established custodial environment, 

the moving party must show by clear and convincing evidence that the change is in the child’s 

best interests. MCL 722.27(1)(c); Phillips, 241 Mich App at 25. The factors a trial court must 

consider in determining whether a change in custody is in the child’s best interests are found in 

MCL 722.23. Likewise, when a parenting-time modification alters the established custodial 

environment, the moving party must present clear and convincing evidence that the change is in 

the child’s best interests. Shade, 291 Mich App at 22-23. However, when a parenting-time 

modification does not alter the established custodial environment, the moving party must 

establish only by a preponderance of the evidence that the change is in the child’s best interests. 

Id. at 23.

While a trial court must make findings under all the best-interests factors when making a 

custody decision, when making a parenting-time decision, the trial court need only make 

 1 We reject defendant’s assertion that this Court lacks jurisdiction over plaintiff’s appeal. The 

July 25, 2017, order is reasonably interpreted as an order that “revers[es]” the judgment of 

divorce, hence becoming a new final order appealable as of right under MCR 7.202(6)(a)(i). At 

any rate, we find it appropriate to address the appeal regardless. See Wardell v Hincka, 297 

Mich App 127, 133 n 1; 822 NW2d 278 (2012). 
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findings on the contested best-interests factors. Shade, 291 Mich App at 31-32. However, when 

the parties have come to an agreement about custody and parenting time, “[i]mplicit in the trial 

court’s acceptance of the parties’ custody and visitation arrangement is the court’s determination 

that the arrangement struck by the parties is in the child’s best interest.” Koron v Melendy, 207 

Mich App 188, 191; 523 NW2d 870 (1994). See also Harvey, 470 Mich at 192-193 (holding that 

when a trial court signs an order memorializing the parties’ agreement regarding custody, it 

indicates that the trial court has “satisf[ied] itself concerning the best interests of the children”).

When gradual changes to parenting time are incorporated in the trial court’s original 

custody and parenting-time order, this does not qualify as a modification or amendment of 

custody or parenting time. See Riemer v Johnson, 311 Mich App 632, 648; 876 NW2d 279 

(2015). On appeal, both parties in Riemer challenged the trial court’s order, which “gradually 

adjust[ed] parenting time over the course of approximately three and one-half years and 

ultimately result[ed] in equal parenting time.” Id. at 646. This Court rejected the defendant’s 

reliance on MCL 722.27(1)(c) in this context, holding that the defendant’s reliance on that statute 

was “misplaced” because the trial court’s order “contemplated” the gradual changes and because 

the defendant “cite[d] no authority for the proposition that the full effect of the parenting time 

order was required to be implemented immediately.” Id. at 648.

In this case, the judgment of divorce included a parenting-time provision that increased 

plaintiff’s parenting time to equal parenting time beginning at the start of the school year in 

2017. Plaintiff argues that the trial court’s decision to strike that provision constituted a change 

in parenting time that should not have been made. Defendant responds that an agreement that 

modifies child custody in the future is invalid because it improperly “usurps the authority of a 

court,” given that the trial court cannot know in advance whether proper cause or a change of 

circumstances will exist.

Here, when the trial court approved the parties’ agreement, it implicitly decided that the 

agreement was in the best interests of the children. See Koron, 207 Mich App at 191, and 

Harvey, 470 Mich at 192-193. Because the judgment of divorce was the first custody or 

parenting-time order in this case and documented the agreed-upon future parenting-time 

modification, it was not a modification of a custody or parenting-time order. See Riemer, 311 

Mich App at 648. MCL 722.27(1)(c) requires the threshold showing of proper cause or a change 

of circumstances before modifying a judgment or order regarding child custody. In this case, the 

prospective change was incorporated in the judgment of divorce; it was not itself an attempt to 

modify a judgment or order that was in place. Instead, the trial court’s decision to strike the 

provision from the judgment of divorce was itself an improper modification of parenting time.

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Defendant argues that, if this Court agrees with plaintiff’s argument, there would be “no 

limit on the permissible machinations” allowing for future changes to custody or parenting-time 

 2 We note that defendant made no showing or even allegation of a proper cause or a change in 

circumstances justifying the modification of the judgment of divorce (i.e., the striking of the 

provision in question).
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orders. However, this ignores the mandate that the trial court must determine whether an 

agreement is in the best interests of the child, see Harvey, 470 Mich at 192-193, and we are, 

quite simply, following the established caselaw of Riemer, 311 Mich App at 648. 

Reversed.

/s/ Patrick M. Meter

/s/ Kirsten Frank Kelly

/s/ Elizabeth L. Gleicher