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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UNPUBLISHED

August 7, 2018

v No. 339175

Washtenaw Circuit Court

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

Defendant-Appellant.

ON REMAND

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

PER CURIAM.

The last time this domestic relations action was before the Court, we dismissed 

defendant’s claim of appeal for lack of jurisdiction because we concluded that the trial court’s 

postjudgment order denying defendant’s motion for expanded parenting time and a reunification 

plan did not affect the custody of a minor, and thus, it was not a final order for purposes of MCR 

7.202(6)(a)(iii) and MCR 7.203(A)(1).

1

 Thereafter, the Michigan Supreme Court considered 

defendant’s application for leave to appeal, and in lieu of granting leave, it vacated our judgment 

and remanded the case for “reconsideration in light of Marik v Marik, 501 Mich 918 (2017), 903 

NW2d 194 (2017), and Royce v LaPorte, unpublished per curiam opinion of the Court of 

Appeals, issued May 8, 2018 (Docket Nos. 337549 and 340354).”2 Having considered Marik

and Royce and their impact on this claim of appeal, we again conclude that the postjudgment 

order at issue was not a final order as defined by MCR 7.202(6)(a)(iii), and thus, this Court lacks 

jurisdiction. Defendant did not seek a change that affected either legal or physical custody, and 

her motion regarding parenting time did not seek a change that would affect the child’s 

established custodial environment. 

 1 Dubin v Fincher, unpublished opinion of the Court of Appeals, issued January 30, 2018 

(Docket No. 339175).

2 Dubin v Fincher, ___ Mich ___; 912 NW2d 556 (Mem) (Docket No. 157369, issued June 20, 

2018).
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As we noted in our last opinion, this case took 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 trial court order. The briefs 

defendant filed in each appeal appear to be identical and raise the exact same issues. Essentially, 

defendant was covering her bases by filing both a claim of appeal and an application for leave to 

appeal. Defendant’s application for leave to appeal was presented to a motion panel of this 

court, which reviewed defendant’s appellate issues and entered an order denying the application 

“for lack of merit in the grounds presented.”

3

In his appellate brief in the instant appeal, being round two, plaintiff argued that this 

Court lacks jurisdiction on the claim of appeal because the postjudgment order at issue is not a 

final order as defined by MCR 7.202(6)(a)(iii). On December 19, 2017, we ordered defendant to 

file a supplemental brief addressing this jurisdictional issue.

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 We also allowed plaintiff to file a

supplemental brief. Id. After reading both parties’ supplemental briefs, as well as defendant’s 

reply to plaintiff’s supplemental brief, we concluded that the order appealed from does not affect 

custody and is not a final order appealable by right; therefore, this Court dismissed the claim of 

appeal for lack of jurisdiction pursuant to MCR 7.203(A)(1).

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).”5 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 both 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 

 3 Dubin v Fincher, unpublished order of the Court of Appeals, entered October 25, 2017 (Docket 

No. 339172). 

4 Dubin v Fincher, unpublished order of the Court of Appeals entered December 19, 2017 

(Docket No. 339175). 

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

6 an order regarding that motion is a final order under 

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

As the Supreme Court’s remand order in this case illustrates, there have been recent 

developments regarding whether an order resolving a legal custody issue is a “postjudgment 

order affecting custody” appealable by right. On July 12, 2016, this Court dismissed a party’s 

claim of appeal for lack of jurisdiction on the grounds that the order appealed from denying the 

defendant-father’s request to change the children’s school enrollment “cannot be considered an 

order affecting the custody of a minor under MCR 7.202(6)(a)(iii)” and therefore, it was not a 

final order under MCR 7.203(A)(1). Marik v Marik, unpublished order of the Court of Appeals, 

issued July 12, 2016 (Docket No. 333687). On August 25, 2016, this Court issued a published 

opinion holding that “an order denying a motion to change schools is not an order affecting the 

custody of a minor within the meaning of MCR 7.202(6)(a)(iii).” Ozimek v Rogers, 317 Mich 

App 69, 81; 893 NW2d 125 (2016). On November 16, 2017, the Michigan Supreme Court 

issued a memorandum opinion vacating this Court’s order in Marik and overruling Ozimek, 

stating, “Ozimek erred in concluding that the term ‘custody’ in MCR 7.202(6)(a)(iii) does not 

comprise the concept of legal custody.” Marik v Marik, 501 Mich 918; 903 NW2d 194 (2017).

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The Supreme Court remanded Marik to this Court with instructions to determine whether the 

trial court’s order denying the father’s request to change the child’s school enrollment and 

modifying parenting time was “a postjudgment order affecting the custody of a minor” and, 

therefore, was appealable by right under MCR 7.203(A)(1). Id. In doing so, this Court was to 

apply the standard applicable prior to Ozimek. Marik has no impact on our jurisdictional ruling 

in the instant appeal, however, because the order at issue does not involve a question of legal 

custody. 

In Royce, this Court determined that the two postjudgment orders appealed, one being a 

motion for “parenting time and other matters,” and the other being a subsequent motion for 

parenting time, were appealable as a matter of right because the defendant was seeking to expand 

parenting time with the minor child at issue to a “ ‘50/50 parenting time schedule’ or, in other 

words, to the child spending equal time with each party.’ ” Royce, unpub op, pp 1- 2. This was 

against a background of the defendant having parenting time only two days a week under the 

trial court’s prior order. Id. Thus, this Court determined that the orders denying defendant’s 

motions affected custody because defendant’s motion “actually constituted a motion seeking a 

change from plaintiff having primary physical custody of the parties’ child to the parties sharing 

equal physical custody.” Id. 

 6 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).

7 The Supreme Court order also noted that the Court had opened an administrative file, ADM 

File No. 2017-20, to consider amending MCR 7.202(6)(a)(iii).
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At issue in determining whether this Court has jurisdiction over defendant’s claim of 

appeal is whether the trial court’s order affects either physical custody or legal custody. It does 

not involve “decision-making authority as to important decisions affecting the child’s welfare,” 

such as where the child will attend school. And even if defendant’s motion before the trial court 

had been granted, it would not have affected physical custody. Defendant requested expanded, 

unsupervised, non-overnight parenting time and a “reunification plan.” She did not request a 

specific parenting-time schedule, but merely asserted, “it is time to normalize parenting time as 

anticipated by this court.” Thus, the dispositive issue is whether the trial court’s order denying 

these requests “affect[] the custody of a minor” by potentially causing a change in the established 

custodial environment (ECE). We conclude that it does not. 

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

determination that the child’s established custodial environment is with plaintiff, who has sole 

legal and physical custody of the minor child. Pursuant to a December 15, 2015 parenting-time 

consent order, defendant received one hour of parenting time every 14 days at a psychologist’s 

office and under the psychologist’s supervision.8 Following a review hearing, the trial court 

issued a March 31, 2016 order continuing the same parenting time arrangements. On May 11, 

2017, defendant filed a motion essentially asking for three things: expanded, unsupervised 

parenting time, an evidentiary hearing (“if necessary”), and a “reunification plan.” Defendant 

asserted that prior to the December 15, 2015 parenting-time order, she had had 30 parenting-time 

visits at Catholic Social Services (CSS) “with virtually no interventions or complaints from CSS 

about her conduct,” but from January 30, 2016 until April 2017, she had had only 25 one-hour 

visits in the psychologist’s office. Defendant asserted that the present parenting time schedule 

did not support or promote a strong mother-son relationship as required by MCL 722.27a,9 that 

there was proper cause to expand parenting time, and that expansion of parenting time would not 

change the established custodial environment, especially since it would not include any 

overnights. The order appealed from denied defendant’s request for expanded parenting time 

and a “reunification plan” on the ground that defendant failed to make the threshold showing 

necessary for a court to revisit a parenting-time order. Specifically, defendant failed to submit 

evidence adequately supporting her assertions that changes she had made in her life addressed 

and managed her mental health issues and that the current state of her mental health constituted 

proper cause or a change in circumstances to modify the order. There is no evidence indicating 

that the modification defendant requested in her motion had the potential to change the ECE. 

Because the postjudgment order in no way affects physical, legal custody, or the ECE, it is not a 

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

 8 The record reveals that defendant struggles from a variety of mental health issues and that 

custody and parenting time have been determined by the court based on defendant’s conduct 

around the child and how that conduct affects the child’s wellbeing and best interests.

9 “Parenting time shall be granted in accordance with the best interests of the child. It is 

presumed to be in the best interests of a child for the child to have a strong relationship with both 

of his or her parents. . . .” MCL 722.27a(1).
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Even if we were to deem the trial court’s order as appealable of right, based on our 

review of the record, we would agree with the assessment of the Court of Appeals panel that 

reviewed defendant’s application for leave, and we would affirm the trial court’s ruling denying 

defendant’s motion.

Dismissed.

/s/ William B. Murphy

/s/ David H. Sawyer

/s/ Jane M. Beckering