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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

JESSICA KUBACKI,

Plaintiff-Appellee,

UNPUBLISHED

December 11, 2018

v No. 343526

Sanilac Circuit Court

JAMES KUBACKI,

Family Division

LC No. 12-034834-DM

Defendant-Appellant.

Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

After the parties’ divorce in November 2012, plaintiff was granted sole legal and physical 

custody of the parties’ minor children, JMK and JJK.

1

 In October 2017, defendant filed a motion 

to modify the children’s custodial arrangement concerning legal custody and also to modify the

parenting-time schedule. The trial court denied defendant’s motion, reasoning that defendant 

had not established proper cause or a change in circumstances necessary to warrant altering the 

children’s custodial arrangement or parenting-time schedule. Defendant appeals as of right. We 

affirm the trial court’s order to the extent that it denied defendant’s request to alter the children’s 

custodial arrangement. However, we reverse the trial court’s order to the extent that it denied 

defendant’s request to modify the parenting-time schedule, and we remand this case for the trial 

court to revisit this request.

Defendant, in his motion requesting a change in the children’s custodial arrangement and 

in the parenting-time schedule, argued that (1) his lack of legal representation before entry of the 

consent judgment of divorce resulted in an unusual custodial arrangement; (2) he had attempted 

to persuade plaintiff to stipulate to a change in the children’s custodial environment and 

parenting-time schedule; (3) he had a good relationship with his children; (4) plaintiff had been 

allowing defendant to exercise alternative weekly parenting time with the children during the 

 1 The record is not entirely clear regarding JJK’s birth date and thus whether JJK has already 

reached 18 years of age. If he has already reached 18 years of age, JJK is no longer subject to 

orders of custody and parenting time under MCL 722.27(1)(c). In that case, our holdings affect 

only the custodial arrangement and parenting-time schedule pertaining to JMK.
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two preceding summers, notwithstanding the time allotted by the Friend of the Court; (5) 

plaintiff had frequently allowed defendant to exercise parenting time for one or two days during 

the week, notwithstanding the time allotted by the Friend of the Court; (6) plaintiff’s occupation 

as a preschool teacher and volleyball coach frequently required her to spend time working after 

school hours; (7) defendant had acquired seasonal employment that allowed him to take time 

away from work for three to four months around winter, which he could spend with the children;

and (8) it would be in the children’s best interests to modify the custodial arrangement and 

parenting-time schedule. Plaintiff did not file a written response to defendant’s motion.

The trial court conducted a hearing on defendant’s motion, indicating that the only issue 

it would address at the hearing was whether defendant had shown the requisite proper cause or 

change in circumstances to warrant a modification of parenting time or the children’s custodial 

arrangement. Plaintiff’s counsel argued that defendant had not established proper cause or a 

change in circumstances as required under the standards outlined in Vodvarka v Grasmeyer, 259 

Mich App 499; 675 NW2d 847 (2003). The trial court agreed, concluding that defendant had not 

established proper cause or a change in circumstances sufficient to warrant a modification of

parenting time or the children’s custodial arrangement. With regard to parenting time, 

specifically, the trial court noted that the parties were free to modify the parenting-time 

arrangement as they saw fit. Defendant appeals as of right.

In issues concerning custody of a child, “all orders and judgments of the circuit court 

shall be affirmed on appeal unless the trial judge made findings of fact against the great weight 

of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” 

MCL 722.28. The statute articulates three standards of review, applied in different contexts. 

Yachcik v Yachcik, 319 Mich App 24, 31; 900 NW2d 113 (2017); Phillips v Jordan, 241 Mich 

App 17, 20; 614 NW2d 183 (2000). This Court reviews for an abuse of discretion a trial court’s 

decision whether to change custody of a minor child. Yachcik, 319 Mich App at 31. “ ‘In this 

context, an abuse of discretion exists when the result 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., quoting Sulaica v Rometty, 308 Mich App 568, 577; 866 NW2d 838 (2014). 

Questions of law are reviewed for “clear legal error.” Yachcik, 319 Mich App at 31. Clear legal

error results when a trial court incorrectly chooses, interprets, or applies the law. Id. Findings of 

fact are reviewed under the great-weight-of-the-evidence standard, which dictates that “[t]his 

Court may not substitute [its] judgment on questions of fact unless the facts clearly preponderate 

in the opposite direction.” Id. (citations and quotation marks omitted). These same standards 

also apply when reviewing orders concerning parenting time. Shade v Wright, 291 Mich App 17, 

20-21; 805 NW2d 1 (2010).

Further, this Court reviews for an abuse of discretion a trial court’s decision regarding 

whether to omit or limit oral argument. Fisher v Belcher, 269 Mich App 247, 252; 713 NW2d 6 

(2005).
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Defendant argues that the trial court erred when it denied his motion to the extent that he 

requested a change in the children’s custodial arrangement.2 

Under MCL 722.27(1)(c), a trial court may “modify or amend its previous judgments or 

orders for proper cause shown or because of change of circumstances until the child reaches 18 

years of age . . . .” Judgments and orders that may be modified include those providing for legal 

custody, physical custody, or parenting time. See MCL 722.1102(c) and Shade, 291 Mich App 

at 22. This Court has previously determined that, under these rules, a trial court is not authorized 

to revisit an otherwise valid prior custody decision or to consider the statutory best-interests

factors under MCL 722.23 until after the party requesting a modification of a child’s custodial 

arrangement has proven, by a preponderance of the evidence, that proper cause or a change of 

circumstances has occurred warranting such a revisiting. Vodvarka, 259 Mich App at 508-509. 

The trial court is not required to conduct an evidentiary hearing to address this threshold 

question. Id. at 512; Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009).

In cases in which a parent requests a change of custody, “proper 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. This Court has explained that 

to 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. [Id. at 512.]

The Vodvarka Court held that, to show a “change in circumstances” sufficient to warrant 

revisiting custody, 

a 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. Again, not just any change will 

suffice, for over time there will always be some changes in a child’s environment, 

behavior, and well-being. Instead, the evidence must demonstrate something 

 2 To the extent that defendant, by way of some of the statements in his appellate brief, may be 

attempting to argue that the trial court erred by failing to advise him, before the 2013 consent 

judgment of divorce, of the possibility of joint custody, see MCL 722.26a(1), we find that such 

an argument effectively constitutes a collateral attack on the consent judgment because defendant 

is not raising it on direct appeal of that judgment. See People v Howard, 212 Mich App 366, 

369; 538 NW2d 44 (1995) (“[W]e believe a collateral attack occurs whenever a challenge is 

made to a judgment in any manner other than through a direct appeal.”). Judgments of divorce 

are generally not subject to collateral attack. Estes v Titus, 481 Mich 573, 590 n 43; 751 NW2d 

493 (2008). In addition, defendant has not provided adequate factual support for his assertion 

that he was never advised of the possibility of joint custody.
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more than the normal life changes (both good and bad) that occur during the life 

of a child, and 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.]

On appeal, defendant does not argue that a change in circumstances occurred sufficient to 

warrant a revisiting of the children’s custodial arrangement. Rather, he argues that such 

revisiting was supported solely by proper cause. In addition, defendant has failed to articulate 

how a revisiting of the children’s custodial arrangement has been supported by proper cause. In 

his appellate brief, defendant simply contends, without citing any factual support, that “[i]t is 

obviously appropriate to the circumstances and an appropriate ground for legal action to be taken 

to simply grant Defendant joint legal custody with the Plaintiff concerning their two minor 

children.” Without more, this bare assertion is insufficient under Vodvarka, Mich App at 512, to 

establish the requisite proper cause. 

Even if defendant had made the same assertions as he had in his motion—i.e., that (1) he 

did not have a right to retrieve his children from school or take them to medical appointments,

(2) he could not request the children’s school or medical records, and (3) he had been engaging 

in parenting time in excess of what was outlined in the parenting-time agreement and would be 

able to continue engaging in additional parenting time in the future—defendant would not 

prevail. Indeed, defendant failed to discuss how these facts, if accepted as true, were “of such 

magnitude [as] to have a significant effect on the child[ren]’s well-being.” Vodvarka, 259 Mich 

App at 512. Defendant has not suggested—nor has he put forward any evidence to support—that 

plaintiff has struggled to retrieve the children from school or take them to medical appointments. 

Likewise, defendant has offered no evidence demonstrating that there is a need for him to 

acquire the children’s medical or school records; the parties do not appear to disagree on matters 

pertaining to the children’s education or medical requirements, and the children do not appear to 

have any unique or special needs with respect to either. Moreover, defendant has failed to 

explain why the additional parenting time he has exercised constitutes proper cause under 

Vodvarka.

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The trial court did not err when it determined that defendant failed to satisfy his burden of 

proving, by a preponderance of the evidence, that proper cause or a change in circumstances 

existed sufficient to warrant revisiting the children’s custodial arrangement.

Defendant further contends that the trial court erred when it denied his motion to the 

extent that he requested a modification of parenting time. 

 3 We note that the parties are entitled to agree on parenting time that does not follow the 

provisions in the Sanilac County Friend of the Court guidelines unless the trial court determines 

that such deviations are not in the children’s best interests. See Sanilac County Circuit Court, 

Friend of the Court Parenting Time Guidelines (May 12, 2017), p 5, available at 

<https://www.sanilaccounty.net/Handlers/File.ashx?ID=22114> (accessed December 3, 2018). 
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If a parent requests a mere change in parenting time—as opposed to a change in a child’s 

established custodial environment4—the Vodvarka standards generally do not apply. Shade, 291 

Mich App at 25-28. In other words, a parent does not need to establish proper cause or a change 

in circumstances in accordance with Vodvarka before the trial court may grant a request to 

modify the parenting-time schedule, unless such modification would result in a change in the 

established custodial environment. Id. at 27-28. Instead, “a lesser, more flexible understanding 

of ‘proper cause’ or ‘change in circumstances’ ” applies. Kaeb v Kaeb, 309 Mich App 556, 570-

571; 873 NW2d 319 (2015); Shade, 291 Mich App at 30-31 (unless the requested parenting-time 

modification would result in changes to the established custodial environment, “normal life 

changes” that occur in a child’s life, such as a desire to be more involved in extracurricular 

activities, are sufficient to modify parenting time). 

“In a parenting-time matter, when the proposed change would not affect the established 

custodial environment, the movant must prove by a preponderance of the evidence that the 

change is in the best interests of the child.” Lieberman v Orr, 319 Mich App 68, 84; 900 NW2d 

130 (2017). This requires a trial court to determine whether an established custodial 

environment exists and whether modification of a parenting-time schedule would alter that 

environment. Marik v Marik (On Remand), ___ Mich App ___, ___; ___ NW2d ___ (2018) 

(Docket No. 333687); slip op at 8-9. 

The trial court automatically assumed that the Vodvarka standards applied to defendant’s 

motion, but defendant in his motion clearly requested a change in legal custody and for 

“additional parenting time.” We therefore remand this case for a reevaluation of the request for a 

change in parenting time in accordance with the applicable standards. 

Defendant appears to be raising unpreserved arguments that the trial court erred by

denying his motion because it should not have allowed plaintiff’s counsel to speak at oral 

arguments and because plaintiff effectively consented to defendant’s motion when she failed to 

file a responsive brief. Defendant has cited no authority in support of either of these contentions. 

This Court will not search for authority in support of a party’s position on appeal, and a party’s 

failure to cite sufficient supporting authority constitutes abandonment of the issue. King v 

Oakland Co Prosecutor, 303 Mich App 222, 236; 842 NW2d 403 (2013). At any rate, MCR 

2.119(E)(3) states that a trial court “may require the parties to file briefs . . . in opposition to a 

motion.” MCR 2.119(E)(3) (emphasis added). Ordinarily, use of the word “may” indicates a 

permissive, but not mandatory, action. See Ladd v Motor City Plastics Co, 303 Mich App 83, 

106; 842 NW2d 388 (2013). Accordingly, even if we were to consider defendant’s position, we 

 4 MCL 722.27(1)(c) provides, in part:

The custodial environment of a child is established if over an appreciable time the 

child naturally looks to the custodian in that environment for guidance, discipline, 

the necessities of life, and parental comfort. The age of the child, the physical 

environment, and the inclination of the custodian and the child as to permanency 

of the relationship shall also be considered.
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would find no error with the trial court’s process—it had discretion to allow plaintiff to present 

her arguments at the motion hearing as opposed to in a written response.

Affirmed in part, reversed in part, and remanded for further proceedings in accordance 

with this opinion. We do not retain jurisdiction.

/s/ Michael J. Kelly

/s/ Patrick M. Meter

/s/ Colleen A. O'Brien