                           STATE OF MICHIGAN

                            COURT OF APPEALS



TODD PECK,                                                            UNPUBLISHED
                                                                      October 10, 2016
               Plaintiff-Appellee,

v                                                                     No. 332814
                                                                      Newaygo Circuit Court
RACHEL PATRICIA ANN PECK, also known as                               LC No. 14-052965-DM
RACHEL PATRICIA ANN CONLEY,

               Defendant-Appellant.


Before: SAWYER, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

       Defendant, Rachel Patricia Ann Peck (also known as Rachel Patricia Ann Conley),
appeals as of right the circuit court’s January 22, 2016 order placing one of the parties’ minor
children into “Teen Challenge,” a boarding school, as requested by plaintiff, Todd Peck. On
appeal, defendant argues that the circuit court erred in failing to make a best-interests
determination regarding the child’s placement in Teen Challenge after an evidentiary hearing.
Because we agree, we remand for further proceedings.1




1
  At the outset, we reject plaintiff’s argument that the issues raised in this appeal are moot
because he was awarded sole physical custody of the parties’ minor children after the order at
issue in this appeal was entered. The parties nevertheless maintain joint legal custody, and
defendant continues to have significant parenting time including overnights with the children.
Moreover, as illustrated below, the custody of the child at issue in this case has changed several
times since the parties’ divorce, and it seems likely that it will continue to change into the future.
See, e.g., Wiechmann v Weichmann, 212 Mich App 436, 441 n 4; 538 NW2d 57 (1995). We also
reject plaintiff’s cursory argument that defendant’s appeal is frivolous for the reason that he has
failed to adequately support his position. Cheesman v Williams, 311 Mich App 147, 161; 874
NW2d 385 (2015). Furthermore, as discussed below, defendant’s appellate arguments have
merit.


                                                 -1-
        Plaintiff and defendant were married for several years and share custody over five
children. Only one of those children, the parties’ 16-year-old daughter, is at issue in this appeal.2
After the parties divorced, they were awarded joint legal and physical custody, but it appears that
the children primarily resided with plaintiff.3 Several months after the divorce, however,
plaintiff determined that he no longer wished to have the 16-year-old daughter live primarily
with him after he apparently caught her cutting herself and maintaining a relationship with an
older boy. According to defendant, plaintiff “was very upset” and dropped her off with the
following explanation:

       “I am dropping [the child] off. It’s going to break my heart. I don’t want to do
       this, but she wants to live with you. I’m afraid she is going to hurt one of the
       boys or me. She’s out of control.” He said, “We need to speak to the attorneys
       and have something written up. I don’t want to be legally responsible for her
       because of what I see coming.”

       Consequently, the child began living primarily with defendant, and plaintiff had
approximately two-and-a-half hours of parenting time with her each week. Changing the child’s
primary residence unsurprisingly led to a variety of other changes in the child’s daily life. Most
pertinent to this appeal, however, is the change to the child’s education.4 The child had been
homeschooled throughout her entire life, and, once she began living primarily with defendant,
she began attending public school in September 2015.5 The transition from homeschool to
public school did not go as well as the parties hoped, and, according to her October 2015
progress report, the child was failing two classes, had three absences, and had two tardies. The


2
 The child is currently 16 years old, but she was 15 years old at the time the order appealed was
entered.
3
 Plaintiff’s residence was noted as the primary residence, but defendant had parenting time each
weekday and on alternating weekends. As noted above, however, the record reflects that the
parties’ custody arrangement has changed since the order at issue in this appeal was entered.
4
  While the parties and the circuit court appeared to define the dispute as educational in nature, it
is clear from the record that the parties’ dispute goes well beyond the child’s educational needs.
For example, plaintiff devoted several minutes of the hearing to offering testimony regarding
whether or not the 16-year-old child, who was 15 years old at the time of the hearing, was
permitted to watch movies that included Will Ferrell such as Talladega Nights. Plaintiff also
devoted a substantial amount of time during the hearing to offering testimony regarding whether
the 16-year-old child was aware that defendant may have been having a sexual relationship
“outside the bonds of wedlock.”
5
  The record reflects that the child stopped cutting herself once she began residing with
defendant. It also reflects that she had obtained employment as a “hostess,” but it is clear that
plaintiff had an issue with that employment, and the circuit court apparently found working as a
hostess “very questionable,” opining that, “if [she] had a daughter, [she]’d want her working at
an insurance agency or real estate office or law office.” It is unclear to us what, if any, impact
her employment as a hostess had on her education.


                                                -2-
record reflects that defendant met with all of her teachers and made a variety of efforts to address
the child’s struggles, but the trial court ultimately found her efforts insufficient. According to
plaintiff, he wished to place the child in Teen Challenge, which was located in “central Indiana”
and “specializes in young girls” “that have, like, sexual addictions and that are cutting
themselves,” because “the Lord told [him] to do it.”6 After a hearing, the circuit court granted
plaintiff’s motion, removing the child from public school and placing her into Teen Challenge.
Defendant’s motion for reconsideration was subsequently granted, but the circuit court ultimately
concluded that its original decision was correct. This appeal followed.

        “Under the Child Custody Act, MCL 722.21 et seq., ‘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.’ ” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010), quoting MCL
722.28. “Above all, custody disputes are to be resolved in the child’s best interests,” Eldred v
Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001), and “[t]his standard cannot be abrogated,
even in fairness to the parties,” Soumis v Soumis, 218 Mich App 27, 34; 553 NW2d 619 (1996).
“The Child Custody Act ‘applies to all circuit court child custody disputes and actions, whether
original or incidental to other actions,’ ” and it “provides that when parents share joint legal
custody—as the parties do here—‘the parents shall share decision-making authority as to the
important decisions affecting the welfare of the child.’ ” Pierron, 486 Mich at 85, quoting MCL
722.26(1). “[W]here the parents as joint custodians cannot agree on important matters such as
education, it is the court’s duty to determine the issue in the best interests of the child.”
Lombardo v Lombardo, 202 Mich App 151, 159; 507 NW2d 788 (1993).

       [W]hen considering an important decision affecting the welfare of the child, the
       trial court must first determine whether the proposed change would modify the
       established custodial environment of that child. In making this determination, it is
       the child’s standpoint, rather than that of the parents, that is controlling. If the
       proposed change would modify the established custodial environment of the
       child, then the burden is on the parent proposing the change to establish, by clear
       and convincing evidence, that the change is in the child’s best interests. Under
       such circumstances, the trial court must consider all the best-interest factors
       because a case in which the proposed change would modify the custodial
       environment is essentially a change-of-custody case. On the other hand, if the
       proposed change would not modify the established custodial environment of the
       child, the burden is on the parent proposing the change to establish, by a
       preponderance of the evidence, that the change is in the child’s best interests. In
       addition, under those circumstances, although the trial court must determine
       whether each of the best-interest factors applies, if a factor does not apply, the


6
  An exhibit provided by plaintiff below, which appears to be part of a printed page from a
website, describes the program, in pertinent part, as follows: “Indiana Teen Challenge is a
residential boarding school program for girls ages 13-17. We work with girls involved in
alcohol, drug and substance abuse and behavioral problems such as cutting and bulimia.”


                                                -3-
       trial court need not address it any further. In other words, if a particular best-
       interest factor is irrelevant to the question at hand, i.e., whether the proposed
       change is in the best interests of the child, the trial court need not say anything
       other than that the factor is irrelevant. [Pierron, 486 Mich at 92-93 (emphasis in
       original).]

        In this case, although a hearing was held, it is apparent that the circuit court committed
clear legal error. During the January 7, 2016 hearing, the circuit court was clear in expressing its
belief that it need not determine whether the proposed change would modify the established
custodial environment:

               The questions, I think, before the Court are not overtly custody questions.
       I think [defendant’s counsel] correctly surmised the two questions before Court in
       his brief. Should the child continue at [public school] and should the minor child
       continue to reside with Defendant. The Court does not believe it has to change
       the original custody order in order to reach a decision in this case. I believe that
       the parties ought to leave here today still with joint legal and joint physical
       custody.

               However, the Court is not at all satisfied that the child should remain in
       the care and custody of the Mother . . . .

                                              * * *

               The Court therefore orders as follows. Joint legal and joint physical
       custody shall remain in place. The child should be enrolled at Teen Challenge in
       Indiana as soon as possible. The couple’s tax refund should be used to pay for the
       expenses. If a parent has to advance expenses from their own funds in the
       meantime, then that parent should be reimbursed those funds as soon as the tax
       refund arrives. The parties are to file their return for 2014 as soon as possible but
       not later than ten days from today’s date. [Plaintiff] shall have authority to sign
       all document’s necessary to oversee [the child]’s attendance, her medical matters,
       her financial matters, including collections of and . . . also personal matters, such
       as collection of all items need in preparation for [the child]’s attendance at Teen
       Challenge.

                                              * * *

               Counsel, I point out I’ve not determined . . . environmental. I’ve not dealt
       with a threshold issue of whether there’s been a change of circumstances. This is
       not a custody case. I’ve not determined who had the family environment or
       whatever. I don’t think those issues are relevant. This is more an education type
       situation.




                                                -4-
However, “[w]hen resolving important decisions that affect the welfare of the child,” which
includes educational decisions, “the court must first consider whether the proposed change would
modify the established custodial environment.” Pierron, 486 Mich at 85 (emphasis added).7
Thus, the circuit court’s failure to do so constituted a misapplication of the applicable law, and a
remand for a new hearing for that reason would ordinarily be required.

       In this case, however, a remand for that reason would not necessarily be required
because, in addressing defendant’s motion for reconsideration, the circuit court considered
whether the proposed change would modify the established custodial environment as it should
have done originally:

       With regard to the legality of ordering the child down to Teen Challenge, the
       Court’s satisfied it was the right decision. The Court is satisfied that it was the
       lawful decision. I do not believe that it affected the custodial environment. When
       it comes to custodial environment, I think, Vodvarka is one of the chief cases. I
       was going through one of my files, here, to see if I have that case in front of me.

              But it’s the Court’s opinion that we have not changed either the legal or
       physical custody of these parties. But the order that I signed sending the child
       down to Indiana, frankly, reiterated that the parties maintain . . . joint legal and
       joint physical custody of the minor child. I think, it is equivalent to a parent
       sending their child to band camp, or to a military school for a longer duration than
       what a band camp probably would be, or most any other place.

Thus, on reconsideration, the circuit court correctly completed the first step of the applicable
analysis, i.e., determining whether the proposed change would modify the established custodial
environment. Pierron, 486 Mich at 85-86, 92. However, even if the proposed change would not
modify the established custodial environment, the circuit court was nevertheless required to
address the best interests of the child, and it failed to adequately do so. Id. Thus, the circuit
court’s failure to do so constituted a misapplication of the applicable law, and a remand for a
new hearing for that reason is required.8 See Foskett v Foskett, 247 Mich App 1, 12; 634 NW2d




7
  It appears, given the context, that the circuit court’s references to “[e]nvironmental” and a
“family environment” were actually references to an established custodial environment. With
that understanding, it is apparent that the circuit court assumed it need not decide that “threshold
issue.”
8
 The circuit court did mention the best interests of the child, stating as follows: “In this case, I
have so many different factors that it’s overwhelming. I think this child is at risk. When we talk
about the best interests for this child, ultimately that’s what I’m trying to do in every one of these
domestic cases.” This statement, in our view, is insufficient.


                                                 -5-
363 (2001); see also Rivette v Rose-Molina, 278 Mich App 327, 330-333; 750 NW2d 603
(2008).9

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.




                                                             /s/ David H. Sawyer
                                                             /s/ Jane E. Markey
                                                             /s/ Colleen A. O’Brien




9
  “On remand, the trial court should consider up-to-date information and any other changes in
circumstances arising since the trial court’s original custody order.” Kessler v Kessler, 295 Mich
App 54, 63; 811 NW2d 39 (2011) (citation and internal quotation marks omitted). Additionally,
we would note that at one point during the proceedings, a hearing referee appointed a guardian
ad litem to represent the child in this matter (who recommended that the child remain in
defendant’s care), but the record is unclear as to whether the circuit court continued that
appointment. Given the instability of the child’s life—plaintiff left her with defendant in
September 2015 because he could not “control” her, she was removed from defendant’s custody
and ordered to participate in a boarding school approximately four months later, and she is now
ordered to return to plaintiff’s care as the parent with sole physical custody—we encourage the
circuit court to consider whether a guardian ad litem is necessary in hopes of better protecting the
child’s best interests going forward.


                                                -6-
