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STATE OF MICHIGAN COURT OF APPEALS

MARK J. PFAENDTNER, Plaintiff-Appellant, v MIEKE V. PFAENDTNER, a/k/a MIEKE V WEISSERT, Defendant-Appellee.

UNPUBLISHED December 15, 2009

Nos. 288810, 291722 Ingham Circuit Court LC No. 03-001702-DM

Before: Talbot, P.J., and O'Connell and Davis, JJ. PER CURIAM. In these consolidated appeals, plaintiff appeals by right from two orders that changed parenting time of the parties' minor child. We decline to address one of the orders because it was an interim order that is now moot, and we affirm the other. The parties were married in 1997 and had one child together, Michael Joseph Pfaendtner, born January 2, 2001. Plaintiff filed for divorce in 2003. Plaintiff alleged that defendant had suffered some kind of emotional breakdown, while defendant accused plaintiff of emotional abuse, anger management problems, and, later, harassment and other interference in her affairs. While the parties agreed that there had been an irreparable breakdown of the marital relationship, divorce proceedings ground down for several years largely over disputes as to Michael's custody. The parties agreed to a joint custody agreement with parenting time alternating between the parties on a weekly basis. Defendant moved to Pennsylvania in December of 2003, citing plaintiff's ongoing harassment, and also to address her own problems; she was apparently diagnosed with bipolar disorder at some point. The trial court entered an order maintaining the weekly alternating parenting time schedule and ordering the parties to make the exchange at a parking lot off the Ohio Turnpike. When the parties' judgment of divorce was finally entered on August 4, 2006, it contained an explicit agreement to comply with "co-parenting provisions" included in a Settlement Agreement attached thereto. The Settlement Agreement provided, among other things, that Matthew would primarily live with plaintiff and attend school in Lansing during the school year, Matthew would primarily live with defendant during the summer, and some miscellaneous time would be spent with the "off" parent. The Settlement Agreement further provided as follows:

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30. In the event that on or before December 31, 2007, Mieke [defendant] establishes a residence within 10 miles of the school which Matthew is attending ("Greater Lansing Area"), one month after Mieke has to [sic] moved to Michigan, the parenting time schedule will change to one week with Mieke and one week with Mark [plaintiff] with an exchange time taking place at 6:00 p.m. on Fridays. The parent starting his/her parenting time shall pick up Matthew at the other parent's home. Matthew will have Tuesday parenting time with the off-week parent from a time beginning at 5:30 p.m. or after and ending one hour prior to Matt's [sic] bedtime. 31. In the event of such move, Plaintiff reserves the right to argue that that move constitutes a change in circumstances mandating a [sic] evidentiary hearing on the agreed upon parenting time schedule. In the event Defendant moves to Michigan, regardless of when the move occurs, either before or after December 31, 2007, Defendant reserves the right to argue that it is not a change in circumstances and the agreed upon parenting time should occur without requiring an evidentiary hearing. Defendant did, in fact, return to Michigan, within ten miles of Matthew's school, and advised plaintiff of her move, well before the deadline. She asserted that she therefore had the right to automatically return to an alternating-weekly parenting time schedule. Plaintiff contended that doing so would constitute a modification to a prior custody order, and therefore defendant would be obligated to prove proper cause or a change in circumstances. The trial court concluded that the Settlement Agreement reflected "an agreement to disagree" and that while a change in the custodial arrangement was made available, it was not made automatic. Defendant then moved to change parenting time, and the matter was referred to the friend of the court, which held a referee hearing. The friend of the court referee recommended that defendant's return to Michigan constitute a "change of circumstances" entitling her to "equal time custody" pursuant to the terms of the judgment of divorce, or at least a review of the parenting time schedule. The friend of the court also analyzed the statutory "best interest factors" under MCL 722.23; it found most of them did not apply or were weighted equally between the parties, but factor (d)1 slightly favored plaintiff and factor (j)2 favored defendant. Finally, the friend of the court recommended that the parties continue to share joint legal and physical custody of Matthew, but that parenting time change to an alternating-weekly arrangement with a more complex holiday schedule. The friend of the court observed that the "parties' agreement indicates the [parenting time] arrangement [while defendant was in Pennsylvania] was intended to be temporary; the agreement recites that the Defendant would be

"The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity."
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"The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents."

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entitled to resume equal time care of the child if she should be able to move back to the state by December 31, 2007." The trial court entered an order making the referee's recommendations the order of the court, subject to a de novo hearing, "if any." Plaintiff appeals from that interim order in Docket No. 288810. The trial court then held a de novo hearing. It limited evidence to only what could not have been provided to the friend of the court referee, stating that it would review the transcripts from the Friend of the Court and that it did not intend "to redo the referee hearing." The de novo hearing took ten days, and at the conclusion thereof, the trial court entered a thorough order discussing the best interest factors and, ultimately, concluding that it was in Matthew's best interests to have the alternating-weekly parenting time arrangement. The trial court's final order thus reached the same result as the interim order, although its reasoning differed in some aspects. Plaintiff appeals from that order in Docket No. 291722. In custody cases, a trial court's findings of fact, including its findings regarding the best interest factors or the existence of a custodial environment, are reviewed deferentially and will be affirmed unless the evidence clearly preponderates to the contrary. Thompson v Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004). The trial court's discretionary rulings, including any final decisions regarding custody, are reviewed for an abuse of discretion. Id. This Court's review is less deferential where it appears that the trial court's decisions or findings were based on an erroneous view of the law or erroneous application of the law to the facts. Beason v Beason, 435 Mich 791, 804-805; 460 NW2d 207 (1990). Questions of law, including statutory interpretation, are reviewed de novo. Thompson, supra at 358. This Court reviews de novo whether a court has subject matter jurisdiction. Steiner School v Ann Arbor Twp, 237 Mich App 721, 730; 605 NW2d 18 (1999). This Court also reviews de novo as a question of law the proper interpretation of a contract, including a trial court's determination whether contract language is ambiguous. Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003). Contract law does not govern matters of child custody, but the courts must nevertheless enforce parties' written agreements unless doing so would violate the law or public policy of Michigan. Brausch v Brausch, 283 Mich App 339, 350; 770 NW2d 77 (2009). Initially, however, we must consider whether we have jurisdiction. Both orders appealed must be "final judgment[s] or final order[s] . . . as defined in MCR 7.202(6)." MCR 7.203(A)(1). In a domestic relations action, the relevant definition is "a post-judgment order affecting the custody of a minor." MCR 7.202(6)(a)(iii). Plaintiff contends that the orders are illegal modifications to Matthew's custody, whereas defendant contends that they did not actually affect custody at all, but rather only returned parenting time to the parties' own default agreement. While the orders do not specifically say that they change custody, no talismanic incantation is necessary if the substance of an order actually does so. See Thurston v Escamilla, 469 Mich 1009; 677 NW2d 28 (2004). The cases on point all feature much more dramatic changes in parenting time than exist here. For example, a change in parenting time that would result in a parent with equal involvement in a child's life being "relegated to the role of a `weekend' parent" would affect the child's custodial environment. Powery v Wells, 278 Mich App 526, 527-528; 752 NW2d 47 (2008). Likewise, removing a child from the state would affect the child's custodial -3-

environment; although, critically, a mere domicile change, even of more than a hundred miles, does not necessarily change an established custodial environment. Brown v Loveman, 260 Mich App 576, 590-591; 680 NW2d 432 (2004). Furthermore, "a change in domicile will almost always alter the parties' parenting time schedule to some extent" so "the [new] parenting time schedule need not be equal to the prior parenting time schedule in all respects." Id. at 595. Plaintiff is not being relegated to a "weekend parent," nor is Matthew being removed from the state. Quite the opposite: instead of transporting Matthew out of state, Matthew now needs only to travel across town. Furthermore, the return to the parties' original parenting time arrangement was after a temporary change apparently agreed to so that defendant could resolve her own problems

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