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STATE OF MICHIGAN
COURT OF APPEALS


STEPHEN ALLEN PHILLIPS Plaintiff-Appellee, v DARIEN JESSICA ROSS (VAN SOELEN), Defendant-Appellant.

UNPUBLISHED July 26, 1996

No. 186384 LC No. 92-001789

Before: Doctoroff, C.J., and Neff and Fitzgerald, JJ. PER CURIAM. Defendant appeals as of right both the trial court's interim order and final order modifying physical custody of the parties' minor child. We vacate those orders and remand to the trial court. Defendant gave birth to the parties' minor child in December 1988. Although the parties never married, they shared the same home until June 1992. In June 1993, a temporary custody order was issued wherein the parties were awarded joint physical custody, consisting of alternating weekly custody intervals. In August 1993, defendant was awarded primary physical custody, with liberal visitation extended to plaintiff. Defendant subsequently received permission to move the minor child to Texas. In July 1994, while the minor child was visiting plaintiff in Michigan for the summer months, the trial court heard arguments on a motion by plaintiff. Although defendant acknowledged that the hearing was set for the purpose of clarifying his visitation rights, he proceeded to argue that his visitation should be extended indefinitely because the setting provided by plaintiff in Texas was unacceptable for the minor child. Defendant attempted to argue her position to the trial court, but she was cut short by the trial judge. Neither party was sworn to testify at the hearing. Thereafter, the trial court issued an interim order indefinitely extending plaintiff's visitation on the condition that plaintiff subsequently file a petition for change of custody. No provision was made for visitation on behalf of defendant. In August 1994, plaintiff petitioned for a formal change in custody, and on May 12, 1995, following a hearing on the matter, the trial court issued an order granting primary physical custody to plaintiff.

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On appeal, defendant argues that the trial court committed clear legal error when it issued an interim order modifying the parties' prior custody arrangement because (1) the court failed to hold an evidentiary hearing; (2) the court failed to make any determination that "proper cause" or "changed circumstances" existed to warrant such a modification of custody; and (3) the court failed to make any factual findings or conclusions of law concerning the existence of an established custodial environment or whether such a change was in the child's best interest. We agree. All custody orders 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. MCL 722.28; MSA 25.312(8); Fletcher v Fletcher, 447 Mich 871, 876-877, 900; 526 NW2d 889 (1994). A court commits "clear legal error" when it incorrectly chooses, interprets or applies the law. Id., 881. Orders regarding custody and visitation cannot be modified, absent an agreement of the parties, unless the court first holds an evidentiary hearing. Mann v Mann, 190 Mich App 526, 530, 532-533; 476 NW2d 439 (1991); Pluta v Pluta, 165 Mich App 55, 60; 418 NW2d 400 (1987). A change in custody is properly made only upon a showing of "proper cause" or a "change in circumstances," and in accordance with the best interests of the child as set forth in of the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq. Stringer v Vincent , 161 Mich App 429, 433; 411 NW2d 474 (1987). To make these determinations, a trial court must conduct an evidentiary hearing. Id.; Mann, supra. A trial court's characterization of its change of custody as temporary or interim does not relieve the obligation to comply with the mandate of

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