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STATE OF MICHIGAN 

COURT OF APPEALS 

CHELSEA LEIGH JENKS, f/k/a CHELSEA 

LEIGH HENNINGER, 

 Plaintiff-Appellee, 

UNPUBLISHED 

April 21, 2016 

v No. 329894 

Tuscola Circuit Court 

LOUIS JOSEPH ABRAHAM, LC No. 13-027771-DS 

 Defendant-Appellant. 

Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ. 

PER CURIAM. 

 Defendant, Louis Joseph Abraham, appeals by right the trial court’s order approving the 

Family Court referee’s recommended order granting the petition by plaintiff, Chelsea Leigh 

Jenks, to change the domicile of the parties’ minor child to Texas, and denying Abraham’s 

objection to the recommended order. We conclude that there were no errors warranting relief. 

Accordingly, we affirm. 

I. BASIC FACTS 

 In September 2012, Abraham and Jenks had a child, M.A. In June 2014, the circuit court 

granted joint legal and physical custody of the child to both parties. Jenks had primary physical 

custody and Abraham exercised parenting time on alternate weeks from Wednesday to Sunday. 

 Jenks married in August 2014. Jenks’ new husband was stationed in Fort Hood, Texas. 

In August 2014, Jenks petitioned the trial court to allow her to change M.A.’s domicile from 

Michigan to Texas; she also asked the court to alter Abraham’s parenting time to two weeks 

every four months plus alternate holidays. 

 A referee considered Jenks’ petition and found that Jenks did not support her request by a 

preponderance of the evidence under MCL 722.31(4). The referee also opined that, even if Jenks 

had met that burden, she failed to prove by clear and convincing evidence that the requested 

change in the established custodial environment would be in M.A.’s best interests. The referee 

advised the parties that, under MCR 3.215, the recommended order would be final if neither 

party filed a written objection within 21 days. 
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 Jenks did not object to the referee’s recommendation. In January 2015, she took M.A. to 

Texas. Thereafter, the circuit court issued an ex parte order granting Abraham temporary sole 

physical custody, and later found Jenks in contempt of court for violating the court’s order. 

 In March 2015, Jenks asked the court to set aside the ex parte order and to “reconsider” 

her petition for a change in domicile. Jenks alleged that Abraham deliberately led her to believe 

that if she refrained from objecting to the referee’s recommendation, he would negotiate a 

resolution that would allow her to relocate to Texas with M.A. However, after the expiration of 

the period for objecting, he refused to negotiate. 

 In March 2015, the trial court set aside the ex parte order and restored its June 2014 order 

governing custody. The court refused to revisit the referee’s earlier order denying Jenks’ 

petition, but advised Jenks that she could file a new petition or seek appellate review. Jenks 

thereafter again petitioned for a change in domicile. 

 Abraham moved to dismiss the new petition on the ground that Jenks had not established 

a change in circumstances since the last petition that would warrant a change in domicile. The 

trial court denied the motion and allowed the petition to proceed; the court, however, emphasized 

that the referee could consider only those changes in circumstances that had occurred after 

November 18, 2014, which was the date of the court’s order denying Jenks’ first petition. In 

response, Abraham asked for sole custody of the child. 

 Abraham testified about the circumstances surrounding the last order. He stated that he 

had “not necessarily” coerced Jenks into refraining from objecting to the order within the 21-day 

period for objecting, but acknowledged that he had told her that the two of them would “work 

something out” if she did not object to the proposed order. He also agreed that Jenks reasonably 

relied on his assurances; he explained that he had thought that they would be able to come to an 

agreement, but “it just never worked out that way.” 

 During the hearing on Jenks’ second petition to change domicile, Jenks testified that her 

circumstances had changed “drastically” since the order denying her first petition. Several of her 

relatives testified that she and her children stayed with them when she was in Michigan, and 

Jenks said she could not afford permanent housing in Michigan because she and her husband had 

to maintain their residence in Texas. She further testified that she gave birth to her second child 

and, as a result of the circumstances, her second child had not been able to see her father for the 

past five months. 

 Jenks’ lawyer argued that the relocation of Jenks’ husband to Texas since the last order 

should be considered a change in circumstances because the move to Texas was merely a 

“proposed move” at that time. Moreover, according to her lawyer, Jenks was now aware that the 

change of domicile would offer various educational and other opportunities that would greatly 

improve the quality of M.A.’s life as well as Jenks’ life. 

 The referee found that Jenks had established by a preponderance of the evidence grounds 

for a change of domicile under MCL 722.31(4). Because there was an established custodial 

environment with both parents, the referee examined whether the change of domicile would be in 

M.A.’s best interests. Although the referee found that the parties were equal on most of the 
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factors, she found that it was in the child’s best interests to change her domicile to Texas and 

recommended that Abraham’s motion to change custody be denied. 

 Abraham filed a written objection to the referee’s second recommendation, arguing that 

the referee violated the circuit court’s directive to rely only on facts that had changed since the 

date of its first order, and that the referee failed to find by clear and convincing evidence that the 

change was in M.A.’s best interests. The circuit court dismissed Abraham’s objections as 

untimely because he filed them one day after the expiration of the 21-day period for filing 

objections under MCR 3.215. 

 Abraham now appeals in this Court. 

II. PROCEDURAL ERROR 

 Abraham argues first that the court erred when it determined that his objection to the 

referee’s second recommended order was untimely because the referee and the court committed 

errors that prevented the period for filing objections from running. This Court reviews de novo 

whether the trial court properly interpreted and applied the relevant statutes and court rules. 

Kaeb v Kaeb, 309 Mich App 556, 564; 873 NW2d 319 (2015). 

 Under MCR 3.215(E)(1)(c), if the circuit court approves the referee’s recommended 

order “and no written objection is filed . . . within 21 days after service, the recommended order 

will become a final order.” The record shows that the referee’s second report and 

recommendation was served on the parties on June 23, 2015; thus, the parties had until July 14, 

2015 to file any objections. Abraham filed his objection on July 15, 2015. Nevertheless, he 

argues that it was not untimely because the trial court did not approve the order before it was 

served on the parties, which he asserts was “a necessary precondition” to start the 21-day period 

for filing objections. He also argues that the referee’s notice of the right to a judicial hearing was 

inadequate. 

 Under MCR 3.215(E)(1), after a hearing, the referee must “make a recommendation for 

an order and arrange for it to be submitted to the court and the attorneys for the parties, or the 

parties if they are not represented by counsel.” The referee’s recommended order must include, 

in relevant part, “notice that if the recommended order is approved by the court and no written 

objection is filed with the court clerk within 21 days after the recommended order is served, the 

recommended order will become the final order.” MCR 3.215(E)(1)(b)(ii). It must also include 

a “prominent notice of all available methods for obtaining a judicial hearing.” MCR 

3.215(E)(1)(b)(iv). Finally, a referee’s order can become final if approved by the court and there 

are no objections: 

If the court approves the referee’s recommended order, the recommended order 

must be served within 7 days of approval, or within 3 days of approval if the 

recommended order is given interim effect, and a proof of service must be filed 

with the court. If the recommendation is approved by the court and no written 

objection is filed with the court clerk within 21 days after service, the 

recommended order will become a final order. [MCR 3.215(E)(1)(c).] 
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 When MCR 3.215(E)(1)(c) is read in isolation, it could support Abraham’s preferred 

reading. Specifically, it requires service of the recommended order after it is approved, and then 

provides that it becomes final if there is no objection filed within 21 days after service. This 

could plausibly mean that the 21-day period does not begin to run until after the approved order 

is served on the parties. But this rule could also be understood to require the parties to file their 

objections within 21-days of service of the recommended order—as opposed to the approved 

order—which recommended order will become final if the court approves it at any time and 

there were no written objections during the 21-day period. In other words, the language “no 

written objection is filed with the court clerk within 21 days after service” could refer to service 

of the recommended order prior to approval by the court or service of the order after approval. 

 When read in the context of the other provisions in the court rule, it is evident that the 21-

day period must logically begin after service of the recommended order on the parties without 

regard to whether the trial court has approved it. MCR 3.215(E)(1)(b)(ii), for example, provides 

that a referee’s recommended order must include a notice that informs the parties that if “no 

written objection is filed with the court clerk within 21 days after the recommended order is 

served, the recommended order will become the final order.” Likewise, MCR 3.215(E)(4) states 

that a party may obtain a judicial hearing on “any matter that has been the subject of a referee 

hearing and that resulted in a . . . recommended order by filing a written objection and notice of 

hearing within 21 days after the referee’s recommendation for an order is served . . . .” It does 

not provide that the objections must be filed within 21 days after the trial court approves the 

order. Similarly, the Legislature provided that a trial court must “hold a de novo hearing on any 

matter that has been the subject of a referee hearing, upon the written request of either party,” but 

only if the request is “made within 21 days after the recommendation of the referee is made 

available to that party.” MCL 552.507(4). Thus, understood in context, it is clear that 21-day 

period begins to run after service of the recommended order and without the need for the court’s 

prior approval; it simply will not become a final order—even if there are no objections—until 

after the trial court approves the order. 

 Abraham also argues that the 21-day period did not commence because the referee’s 

notice did not comply with the court rule. Specifically, he maintains that the recommended order 

included only one statement explaining how the parties could obtain a judicial hearing, which 

provided that the parties could “request a de novo hearing before the Family Division Judge by 

filing a written objection pursuant to MCL 552.507(5), MCR 3.215(E)(3)(b).” Abraham argues 

that the reference to the statute and court rule is deficient because neither explains the standard 

by which a party may request a judicial hearing. 

 Included with the referee’s report and recommended order was a “Notice of Submission 

on Order of 21 Day Notice,” which provided that the parties could request a de novo hearing 

before the family court judge by filing a written objection. The notice informed the parties 

where they could obtain objection forms, and specified that the objection should “specifically set 

forth the portion(s) of the Referee’s findings and recommendation objected to and the basis of 

the objection.” The notice further provided that the objection had to be filed with the county 

clerk and served upon the Friend of the Court and the opposing party “within 21 days after the 

recommendation is mailed pursuant to Michigan Court Rules,” and that, “[i]f no written 

objection is received within said period, the recommendation shall become the order of the court 

to be entered without further notice to either party.” The record further shows that the referee 
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verbally informed the parties of these requirements before the hearing on Jenks’ second petition. 

Although the referee’s citations to MCL 552.507(5) and MCR 3.215(E)(3)(b) did not direct the 

parties to the specific provisions governing how to obtain a de novo hearing, the referee also 

generally cited MCR 3.215, which does provide the pertinent information. 

 The notice provided by the referee was sufficient to apprise the parties of their rights and 

the means by which they could assert their rights. 

III. INDEPENDENT FINDINGS 

 Abraham argues that the trial court violated the Child Custody Act, MCL 722.21 et seq., 

by declining to reach the merits of his objections. According to him, the statute required the 

court to independently determine whether the referee’s recommendation regarding custody was 

in the best interests of the child as set forth in MCL 722.23. Abraham relies on the decision in 

Rivette v Rose-Molina, 278 Mich App 327, 332-333; 750 NW2d 603 (2008), for the proposition 

that a trial court errs where it enters an order affecting custody without first either satisfying 

itself that the referee considered the best interests of the child, or making its own findings 

regarding the best interests of the child. 

 In Rivette, this Court reversed the decision of the trial court denying the defendant’s 

petition for change of custody. Id. at 328. The Court concluded that both the referee and the 

trial court erred by failing to make findings of fact or to consider the statutory best-interest 

factors. Id. The Court explained: 

It would stand to reason that, if an analysis of the best interest-factors is required 

in the circuit court to assure that the custody determination is based on an 

informed decision about the child’s best interest, a referee’s custody 

recommendation—which the circuit court may uphold without making any 

independent findings concerning the child’s best interests—likewise should 

include consideration of the best-interest factors. Although a referee perhaps need 

not engage in the same type of in-depth, lengthy analysis as a judge in a custody 

hearing would, some meaningful consideration of the best-interest factors is 

nevertheless necessary to ensure that the referee considers all the relevant criteria 

and makes an informed decision. [Id. at 330 (emphasis added).] 

 As the Court recognized in Rivette, the trial court was not required to make “any 

independent findings concerning the child’s best interests” before approving the recommendation 

of the referee as long as the record shows that the referee considered the child’s best interests. 

Id. Additionally, the court rule does not require an independent determination of the best 

interests factors where no objection has been timely filed, nor does it require the court to make 

independent findings of fact during a judicial hearing held after an objection. See MCR 

3.215(F). 

 The court was not required to reach the merits of Abraham’s objections. 
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IV. SECOND RECOMMENDED ORDER 

 Abraham next argues that the trial court erred by adopting the referee’s second 

recommended order. He maintains that the trial court erred by adopting the order because Jenks 

did not establish that her second petition to change domicile was warranted by a change of 

circumstances, as required under Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 

(2003). He similarly argues that Jenks’ second petition was barred by the doctrines of res 

judicata and collateral estoppel, and undermined the public policy in favor of the finality of 

judgments. Finally, Abraham argues that the referee’s second recommendation was contrary to 

the great weight of the evidence, and that the referee committed legal error in concluding that 

Jenks had met her burden. 

A. CHANGE IN CIRCUMSTANCES 

 The circuit court directed the referee to rely on facts that had occurred after the entry of 

the court’s order of November 18, 2014—in which it denied Jenks’ first petition—when 

determining whether there had been a change of circumstances or proper cause sufficient to 

revisit domicile. Nevertheless, Abraham complains that the referee did not follow the court’s 

instructions and failed to identify a change in circumstances. 

 Under the Child Custody Act, a party seeking to modify custody or parenting time must 

first show, by a preponderance of the evidence, a “proper cause or a change of circumstances 

sufficient to warrant reconsideration of the custody decision.” Gerstenschlager v 

Gerstenschlager, 292 Mich App 654, 657; 808 NW2d 811 (2011); MCL 722.27(1)(c). “[P]roper 

cause means one or more appropriate grounds that have or could have a significant effect on the 

child’s life to the extent that a reevaluation of the child’s custodial situation should be 

undertaken.” Vodvarka, 259 Mich App at 511. 

[T]o establish “proper cause” necessary to revisit a custody order, a movant must 

prove by a preponderance of the evidence the existence of an appropriate ground 

for legal action to be taken by the trial court. The appropriate ground(s) should be 

relevant to at least one of the twelve statutory best interest factors, and must be of 

such magnitude to have a significant effect on the child’s well-being. When a 

movant has demonstrated such proper cause, the trial court can then engage in a 

reevaluation of the statutory best interest factors. [Id. at 512.] 

 In order to establish a change of circumstances warranting revisiting custody, the 

“movant must 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.” Id. at 513 (emphasis in original). A material change must be something 

other than the normal life changes that accompany a child’s growth and development. Id. The 

Court further clarified, “there must be at least some evidence that the material changes have had 

or will almost certainly have an effect on the child. This too will be a determination made on the 

basis of the facts of each case, with the relevance of the facts presented being gauged by the 

statutory best interest factors.” Id. at 513-514. 
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 In this case, the referee noted two changes that had occurred since entry of the last order: 

the parties were having difficulty in communicating with each other and Jenks was “bouncing 

from household to household” in Michigan with her children. Regarding the parties’ 

communication, the referee commented on Abraham’s efforts to dissuade Jenks from objecting 

to the prior recommended order. Although the referee opined that Jenks was an intelligent adult 

who should have filed a timely objection, the referee also found that Abraham had not been 

“honest and open with her” and the “parties did not communicate in a healthy fashion.” This, the 

referee stated, was in contrast to prior practice where the parties “mostly communicated well and 

exercised parenting time pursuant to court order.” The parties’ new found inability to 

communicate and cooperate concerning M.A.’s care was a material change that could 

significantly affect M.A.’s well-being. See Vodvarka, 259 Mich App at 513. Additionally, 

although the referee stated that she was “not sympathetic” to Jenks’ decision to bounce from 

house to house because that was “her choice,” the referee recognized that the lack of a stable 

living situation since the entry of the first order was also a material change which was likely to 

significantly affect M.A.’s well-being. See id. Consequently, there was evidence of changes in 

the circumstances sufficient to support the referee’s decision to consider Jenks’ second petition. 

B. RES JUDICATA, ESTOPPEL, FINALITY 

 The doctrines of res judicata and collateral estoppel apply to subsequent lawsuits; they do 

not apply to ongoing litigation. See Bryan v JP Morgan Chase Bank, 304 Mich App 708, 715-

716; 848 NW2d 482 (2014). Moreover, as already discussed above, the Child Custody Act 

specifically provides criteria for revisiting custody determinations and those criteria were met in 

this case. Accordingly, Abraham cannot rely on res judicata or collateral estoppel to prevent 

Jenks from asking the trial court to reexamine a previous custody order. For similar reasons, we 

reject Abraham’s public policy argument. The court properly allowed Jenks to exercise her right 

to petition the court to modify or amend its previous judgments or orders to the extent allowed 

under MCL 722.27(1)(c). 

C. GREAT WEIGHT OF THE EVIDENCE 

 Finally, Abraham argues that the referee’s second recommendation is contrary to the 

great weight of the evidence. Specifically, he objects to the referee’s findings on the factors 

listed under MCL 722.31(4) concerning a change of domicile request, and to the referee’s 

analysis of the best interests factors under MCL 722.23. 

 MCL 722.31(4) provides that, when considering a change of domicile, the circuit court 

must consider the following factors “with the child as the primary focus in the court’s 

deliberations”: 

(a) Whether the legal residence change has the capacity to improve the quality of 

life for both the child and the relocating parent. 

(b) The degree to which each parent has complied with, and utilized his or her 

time under, a court order governing parenting time with the child, and whether the 

parent’s plan to change the child’s legal residence is inspired by that parent’s 

desire to defeat or frustrate the parenting time schedule. 
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(c) The degree to which the court is satisfied that, if the court permits the legal 

residence change, it is possible to order a modification of the parenting time 

schedule and other arrangements governing the child’s schedule in a manner that 

can provide an adequate basis for preserving and fostering the parental 

relationship between the child and each parent; and whether each parent is likely 

to comply with the modification. 

(d) The extent to which the parent opposing the legal residence change is 

motivated by a desire to secure a financial advantage with respect to a support 

obligation. 

(e) Domestic violence, regardless of whether the violence was directed against or 

witnessed by the child. 

 The referee found that Jenks showed by a preponderance of the evidence that the move to 

Texas was supported by these factors. Abraham contests the referee’s findings only as to the 

first factor. 

 The referee found that the move to Texas unquestionably had the capacity to improve 

Jenks’ quality of life. The referee found that, if permitted to move to Texas, Jenks would be able 

to live with her husband and youngest child as a family unit, “enroll in school and hopefully 

begin a career path. She will have a stable residence and have more security and stability 

available to her.” Abraham protests that the record does not demonstrate “that educational 

opportunities in Texas are greater than those in Michigan.” However, the referee’s inquiry was 

not whether Texas offered better educational opportunities than Michigan; it was whether the 

change had the capacity to improve Jenks’ quality of life. MCL 722.31(4)(a). Jenks testified 

that she would be able to attend school in Texas at the military’s expense, while she would have 

to work full-time if she were required to live in Michigan. Hence, there was evidence to support 

this finding. 

 Abraham also challenges the referee’s finding that the move had the capacity to improve 

M.A.’s life. According to the referee, the move to Texas offered M.A. a more stable living 

environment where she would have access to daycare and preschool. In addition, as M.A. 

seemed “to have a good relationship with her stepfather,” the move also offered the opportunity 

for M.A. to live with her mother, stepfather, and half-sister as a stable family unit. Abraham 

disputes this finding, and argues that Jenks cannot guarantee any sort of stability for M.A. 

because her husband’s military career might require the family to relocate. Although the 

possibility that Jenks’ husband may be transferred is a consideration, the possibility does not by 

itself warrant a finding that M.A.’s life will not be more stable in Texas. The benefits to M.A. of 

living within a stable family unit may outweigh any instability potentially caused by future 

relocations. 

 This Court has held that when a “traditional, nuclear” family is an option, living with that 

family may be in the best interests of the child if it is a more permanent and stable environment 

than the single parent can offer. See Mogle v Scriver, 241 Mich App 192, 199-200; 614 NW2d 

696 (2000). The record showed that Abraham lived in a home with his younger brother, and 

although he had a girlfriend who visited the home on weekends with her child, there was no 
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evidence that Abraham and his girlfriend planned to live together or marry and establish a stable 

family unit comparable to that planned by Jenks and her husband. Therefore, it was not error for 

the referee to find that Jenks could provide a more stable and “permanent” living environment to 

the child. Additionally, we are not persuaded by Abraham’s assertion that this Court should 

consider the Jenks’ new husbands military career as an impediment to her ability to parent. 

There is no authority for the proposition that a person cannot adequately serve as a custodial 

parent because her husband is in the active military. 

 Finally, Abraham argues that the referee’s evaluation of the best interests factors and 

ultimate finding were contrary to the great weight of the evidence. Courts are required to 

consider the “best interest” factors stated under MCL 722.23 when making decisions affecting 

child custody. The referee found that the parties were equal as to the majority of the factors. 

However, the referee found that factor (c) favored Abraham and factor (l) favored Jenks. See 

MCL 722.23(c) and (l). Abraham challenges only the findings for those two factors. 

 Abraham argues that, on the basis of the referee’s evaluation of MCL 722.23(c), he 

should have been granted sole custody because Jenks has no ability to independently provide for 

M.A. because she intended to be a stay-at-home mother. Abraham cites no authority for the 

proposition that a parent should be penalized for electing to be a stay-at-home parent or that a 

stay-at-home parent’s ability to provide material support for a child must be examined 

independently of his or her spouse’s income; and we are aware of no such authority. While the 

referee found that this factor favored Abraham, he has not demonstrated that the referee’s finding 

on this factor should have been dispositive as to the outcome of the case. 

 Abraham also argues that the referee erred by considering M.A.’s relationship with her 

half-sibling, Jenks’ second child, as part of her analysis of the factors under MCL 722.23(l). The 

referee found that M.A. “should be afforded the opportunity to bond with her younger sibling.” 

The referee cited Wiechmann v Wiechmann, 212 Mich App 436; 538 NW2d 57 (1995), for the 

proposition that she had to consider the sibling bond as part of the best interests analysis. We 

agree that the referee was not required to consider the sibling bond under Wiechmann, but 

conclude that she did not err by doing so. 

 In Wiechmann, this Court stated that “[a]lthough the maintenance of the sibling bond is 

not explicitly mentioned as a factor to be considered in determining the best interest of a child in 

a custody dispute, we believe that such consideration is appropriate under several of the statutory 

factors under MCL 722.23,” including factor l. Wiechmann, 212 Mich App at 441 n 2. Further, 

“[t]he sibling bond and the potentially detrimental effects of physically severing that bond should 

be seriously considered in custody cases where the children likely have already experienced 

serious disruption in their lives as well as a sense of deep personal loss.” Id. at 439-440. 

Although the Court must ultimately consider only “the best interests of each individual child,” 

“in most cases it will be in the best interests of each child to keep brothers and sisters together.” 

Id. at 440. 

 Although Wiechmann did not explicitly require the referee to consider M.A.’s bond with 

her new sibling, the referee’s misstatement was harmless. The referee did not rely exclusively 

upon the sibling bond in making her recommendation, nor is there any indication in the report 

that she weighed this factor more heavily than the other best interest factors. Indeed, the sibling 
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bond was not the only “other relevant” factor considered by the referee under MCL 722.23(l). 

The referee also considered that her decision would necessarily deprive either Jenks’ husband or 

Abraham of regular contact with their child; the length of the commute from Michigan to Texas; 

and that Jenks would likely be able to be a “better parent” to M.A. due to greater financial, 

emotional, and housing stability in Texas. Abraham has not demonstrated that the referee 

committed legal error by considering these factors. Further, he has not established that the 

referee’s ultimate decision was in error. 

 There were no errors warranting relief. 

 Affirmed. 

/s/ Kathleen Jansen 

/s/ Deborah A. Servitto 

/s/ Michael J. Kelly