                          STATE OF MICHIGAN

                           COURT OF APPEALS



FRANCIS JOSEPH HINSBERG,                                            UNPUBLISHED
                                                                    October 27, 2015
               Plaintiff-Appellee,

v                                                                   Nos. 324046; 325807
                                                                    Genesee Circuit Court Family
                                                                            Division
MARIA HINSBERG,                                                     LC No. 07-275950-DM

               Defendant-Appellant.


FRANCIS JOSEPH HINSBERG,

               Plaintiff-Appellee/Cross-Appellant,

v                                                                   No. 324455
                                                                    Genesee Circuit Court Family
                                                                            Division
MARIA HINSBERG,                                                     LC No. 07-275950-DM

               Defendant-Appellant/Cross-
               Appellee.


Before: RONAYNE KRAUSE, P.J., and GLEICHER and STEPHENS, JJ.

PER CURIAM.

        In these consolidated appeals, defendant appeals as of right the trial court’s orders
granting plaintiff’s request for a change of domicile, changing physical custody and parenting
time of the parties’ minor children, and denying her request for attorney fees. Plaintiff cross-
appeals to the extent the trial court did not also alter his child support obligation. We affirm in
part, vacate in part, and remand for further proceedings.

      The parties were married on July 26, 1986. Their divorce was finalized on January 30,
2009. When this litigation commenced, five of the parties’ six children were minors. Currently,




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only Martha and Anna are still minors.1 Prior to the commencement of the instant proceedings,
and in accordance with the judgement of divorce, the parties shared joint legal and physical
custody of the minor children with the equal sharing of parenting time. Defendant previously
appealed the judgment of divorce itself. Hinsberg v Hinsberg, unpublished opinion per curiam
of the Court of Appeals, issued August 10, 2010 (Docket No. 290481). Plaintiff is a physician;
defendant does not work and faces significant medical issues. The instant proceedings arise out
of plaintiff’s motion seeking a change of domicile and modification of parenting time pursuant to
his desire to move from Flushing, Michigan to Richmond, Kentucky.

                I. CHANGE OF DOMICILE, CUSTODY, AND PARENTING TIME

        Defendant challenges the entirety of the trial court’s rulings pertaining to the grant of
plaintiff’s motion for change of domicile and the ensuing alterations in custody and parenting
time as being contrary to the best interests of the children. As explained by this Court in
Brausch v Brausch, 283 Mich App 339, 347-348; 770 NW2d 77 (2009) (citations omitted):

          Pursuant to MCL 722.28, “[t]his Court must affirm all custody orders unless the
          trial court’s findings of fact 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.” Under the great weight of the evidence standard, this
          Court should not substitute its judgment on questions of fact unless they clearly
          preponderate in the opposite direction. In a child custody context, “[a]n abuse of
          discretion exists when the trial court’s decision 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.” Clear legal error occurs “[w]hen a
          court incorrectly chooses, interprets, or applies the law.” Additionally, we review
          de novo a trial court’s resolution of issues of law, including the interpretation of
          statutes and court rules . . . In interpreting a statute or court rule, we accord every
          word or phrase of a statute or court rule its plain and ordinary meaning.

                                              A. Domicile

          When deciding a motion for a change of domicile,

          [f]irst, a trial court must utilize a preponderance of the evidence standard when
          determining whether the factors enumerated in MCL 722.31(4) . . . support a
          motion for a change of domicile. Second, if the factors support a change in
          domicile, then the trial court must then determine whether an established custodial
          environment exists. Third, if an established custodial environment exists, the trial
          court must then determine whether the change of domicile would modify or alter
          that established custodial environment. Finally, if, and only if, the trial court
          finds that a change of domicile will modify or alter the child’s established
          custodial environment must the trial court determine whether the change in


1
    Martha will be less than 3 months from her 18th birthday when the instant appeal is resolved.


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       domicile would be in the child’s best interests by considering whether the best-
       interest factors in MCL 722.23 have been established by clear and convincing
       evidence. [Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709 (2013).]

       “It is only after the trial court determines that the moving party has shown by a
preponderance of the evidence that a change of domicile is warranted that [a] court must
determine whether an established custodial environment exists.” Id. at 327 (citation omitted,
emphasis in original).

       “When the parents share joint custody and one parent is seeking permission to relocate
more than 100 miles away, the family court must consider the factors of MCL 722.31(4).”
Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007). The factors delineated
in MCL 722.31(4) include:

       (a) Whether the legal residence change has the capacity to improve the quality of
       life for both the child and the relocating parent.

       (b) The degree to which each parent has complied with, and utilized his or her
       time under, a court order governing parenting time with the child, and whether the
       parent’s plan to change the child’s legal residence is inspired by that parent’s
       desire to defeat or frustrate the parenting time schedule.

       (c) The degree to which the court is satisfied that, if the court permits the legal
       residence change, it is possible to order a modification of the parenting time
       schedule and other arrangements governing the child’s schedule in a manner that
       can provide an adequate basis for preserving and fostering the parental
       relationship between the child and each parent; and whether each parent is likely
       to comply with the modification.

       (d) The extent to which the parent opposing the legal residence change is
       motivated by a desire to secure a financial advantage with respect to a support
       obligation.

       (e) Domestic violence, regardless of whether the violence was directed against or
       witnessed by the child.

“The party requesting the change of domicile has the burden of establishing by a preponderance
of the evidence that the change is warranted.” McKimmy v Melling, 291 Mich App 577, 582;
805 NW2d 615 (2011).

        The trial court appropriately began its analysis and findings in accordance with the
factors listed in MCL 722.31(4). Initially, neither party alleged, nor was there evidence adduced
to suggest, the existence of domestic violence in the circumstances of this case or that
defendant’s opposition to the change of domicile was motivated by financial concerns. See
MCL 722.31(4). Therefore, the focus of the trial court’s analysis addressed MCL 722.31(4)(a)
regarding the capacity of the move to improve the lives of the children and plaintiff, (b) the
exercise of parenting time afforded to each party and the reasons motivating plaintiff’s desire to
change the children’s domicile, and (c) how parenting time would be modified following a

                                               -3-
domicile change and the opportunity to maintain the children’s relationship with the non-
custodial parent in conjunction with the willingness of the custodial parent to facilitate that
ongoing relationship.

        In accordance with MCL 722.31(4), the trial court received evidence and testimony
regarding the potential for the proposed domicile change to positively affect the quality of life of
plaintiff and the minor children. While there was some contention regarding plaintiff’s alleged
income increase, it was shown that his base salary in Kentucky would be higher. In addition,
plaintiff’s residence in Kentucky would permit him to remain with his current wife. This would
likely lessen his financial obligations and time in the maintenance of households in two states,
which could potentially improve his marriage and family situation as a whole. Plaintiff averred
that in the past he has worked the amount necessary to produce an income sufficient to pay his
financial obligations. However, if those obligations were lessened, he would use his extra time
to parent the children rather than to pursue additional income, which would not be as necessary.
Plaintiff’s increased presence in the lives of the children, based on previous examples, has the
potential to significantly improve their academic performance and reduce the everyday stresses
being encountered in their current environment.

        There was no dispute that the lives of the children in Michigan were chaotic and
troublesome. Martha, in particular, was experiencing severe stress and behavioral difficulties.
She was not properly attending school, was at risk of being unable to graduate, and was routinely
failing courses despite an acknowledged ability to perform better academically. Also, she was
frequently at odds with defendant, which led to Martha yelling and leaving defendant’s home for
periods of time. Even the defendant and defendant’s family acknowledged that defendant was
incapable of controlling Martha’s behavior. Equally as troubling was the implicit manipulative
behavior of defendant in threatening self-harm when confronted by the children’s stated
preference to live with plaintiff.

        Conversely, testimony and evidence demonstrated that Martha’s behavior and school
performance were improved when with plaintiff due to his stricter parenting and focus on
problem solving. Notably, two of the school professionals involved routinely with Martha,
Martha T. Barta and Kellen Lester, supported the change of domicile and opined that it was in
Martha’s best interests to reside with plaintiff because of his parenting strengths. Evidence was
also adduced that the children expressed a strong preference to reside with plaintiff. While not
the sole factor to be considered, the children indicated legitimate reasons for their preference to
live with plaintiff, including the existence of acknowledged social difficulties being experienced
in school and pressures exerted by defendant’s family.

        Defendant’s home was stressful with the children thrust into the role of defendant’s
caregiver due to her seizure history. While defendant cannot be faulted for her medical
condition, the responsibility that befell to the children for her care and assistance was
exacerbating the stress they were already experiencing in that environment. There was also
evidence regarding the problematic communication between plaintiff and defendant. Although
plaintiff responded when defendant requested his assistance, did not contradict defendant in the
presence of the children or demean her, and kept her informed of incidents or problems that
arose during his parenting time, defendant did not behave in a reciprocal manner. Defendant
made negative comments to the children regarding plaintiff and his wife to the extent the

                                                -4-
children requested her to cease the behavior. Defendant acknowledged electing not to
communicate with plaintiff by ignoring his emails and not informing him of incidents involving
the children during her parenting time, inherently dismissing the importance of the exchange of
information in order to provide the children with consistency and continuity.

        Although the difficulties being faced by Martha far exceeded those experienced by
Annie, it was clearly demonstrated that both children were struggling in the current
circumstances. Plaintiff evidenced an approach to the situation that suggested a plan to deal with
the demonstrated issues, while defendant merely indicated a lack of ideas regarding how to
improve or, at the very least, ameliorate the current situation and problems. While the children
would be leaving a few friends behind in Michigan, this did not appear to negatively affect their
preference to reside in Kentucky with plaintiff. Any suggested impact with regard to removing
the children from proximity to defendant’s family was disingenuous. First, it was acknowledged
that members of defendant’s family were not overly involved in the children’s lives on a routine
basis. Second, defendant’s family primarily interacted with the children during the summer and
holidays, which would still be available and thus would not significantly alter their access or
interactions. Third, a legitimate concern existed that defendant’s family was already beginning
to ostracize Martha. This concern was based on the family’s prior behavior towards the parties’
eldest child, Sarah Hinsberg, in which the family purposefully reduced contact with her due to
her stated preferences in the previous divorce proceedings. Hence, sufficient evidence was
adduced to satisfy plaintiff’s burden under MCL 722.31(4)(a).

        In evaluating MCL 722.31(4)(b), it was noted that plaintiff and defendant both utilized
their parenting time under the existing court order. Of particular note were plaintiff’s efforts to
maintain his parenting schedule despite his work obligations and travel necessitated by his move
to Kentucky. There was no suggestion that plaintiff’s request for a domicile change was
motivated by an effort to frustrate defendant’s parenting time and, as represented, was simply a
sincere attempt to improve the situation for the minor children. Similarly, the trial court
recognized the balance it would need to achieve, regarding the requirements of MCL
722.31(4)(c), in developing a parenting time schedule that would continue to maximize the
children’s relationship with defendant. The trial court was able to achieve a balance that would
meet the needs of the minor children, while sustaining their relationship with defendant.
Defendant was to receive the majority of the summer months with the children, half the
Christmas holidays, the entirety of their spring breaks from school, unfettered access by
telephone and social media, and the opportunity to have additional time with the children in
Kentucky upon the provision of notice. The proposed schedule recognized the children’s need
for consistency and continuity during the school year by allowing plaintiff to oversee and
structure their academic experience, while still affording defendant significant blocks of time
with the minor children.

        In effectuating this balance, the trial court also implicitly addressed the strengths of each
parent in interacting with the children; plaintiff would have the responsibility of dealing with the
stress inherent in assuring the children’s academic participation, attendance, and performance;
while defendant’s time with the children would not place external burdens or stressors on her
interactions with the children. In addition, there was no indication of plaintiff ever being
unsupportive of defendant or interfering in her relationship with the minor children as evidenced
by his voluntary offer to assume the financial burden for their transportation to Michigan for

                                                -5-
defendant’s parenting time. As such, the trial court properly addressed the relevant provisions of
MCL 722.31(4) and, consistent with the evidence, demonstrated that plaintiff had met his burden
in seeking a change of domicile for the children.

        Defendant contends that the trial court incorrectly considered the children as an
indivisible entity and failed to consider the individualized needs and situations of each child.
This is inaccurate and a mischaracterization of the trial court’s ruling and analysis. It is true to
suggest that a large portion of the trial court’s references focused on Martha given the
immediacy and propensity of the difficulties being experienced and the inherent risks posed.
Yet, the trial court did address Annie as an individual recognizing some current concerns and
anticipated future issues. In particular, there was undisputed evidence that Annie experienced
some stress in assuming a caregiver’s role due to defendant’s seizure condition and was
beginning to evidence panic attacks when having interactions with defendant. Also, the trial
court expressed legitimate concern about her future school attendance and performance based on
the histories of her siblings and potential for future issues to arise. Additionally, given the stated
and unequivocal preferences of each child, coupled with the undisputed testimony of the siblings
close relationship, the trial court changed the domicile of both children. Contrary to defendant’s
assertion, this did not simply treat the children as one entity. Instead, it showed consideration for
their individual needs by recognizing the importance and depth of their relationship.

       In addition, defendant’s contention that plaintiff violated MCL 722.31(1) is without
support in the record and is an incorrect reading of the statutory provision. MCL 722.31(1)
provides:

       A child whose parental custody is governed by court order has, for the purposes
       of this section, a legal residence with each parent. Except as otherwise provided
       in this section, a parent of a child whose custody is governed by court order shall
       not change a legal residence of the child to a location that is more than 100 miles
       from the child’s legal residence at the time of the commencement of the action in
       which the order is issued. [Emphasis added.]

Although evidence demonstrated that plaintiff moved to Kentucky before the evidentiary hearing
in this matter, his move did not alter the legal residence of the children in violation of the statute.
The children’s legal residences remained in Michigan, with plaintiff exercising his parenting
time in this state. Contrary to defendant’s assertion, MCL 722.31(1) does not preclude a parent
from changing their residence without the trial court’s permission. As such, defendant’s
arguments suggesting plaintiff violated this statutory provision are without merit.

                              B. Established Custodial Environment

       Having determined that plaintiff met his burden under MCL 722.31(4), the trial court was
next required to determine “whether an established custodial environment exists.” Rains, 301
Mich App at 325. In accordance with MCL 722.27(1)(c):

       [T]he 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

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        physical environment, and the inclination of the custodian and the child as to
        permanency of the relationship shall also be considered.

Although the trial court did not explicitly state a separate determination regarding the existence
of an established custodial environment, its ruling implicitly indicated a finding of the existence
of a joint custodial environment. Specifically, the trial court recognized that the proposed
change of domicile would alter the current situation “from a true joint custodial environment to a
joint custodial environment with primary physical custody to Plaintiff for purposes of school.”
The trial court further acknowledged having found the existence of an established joint custodial
environment by indicating that plaintiff’s burden of proof pertaining to the best interests of the
children was that of “clear and convincing” evidence.

        As recognized in Pierron v Pierron, 282 Mich App 222, 245; 765 NW2d 345 (2009),
aff’d 486 Mich 81 (2010):

        If the circuit court finds that an established custodial environment exists, then the
        circuit court shall not modify or amend its previous judgments or orders or issue a
        new order so as to change the established custodial environment of a child unless
        there is presented clear and convincing evidence that it is in the best interest of the
        child. This higher clear and convincing evidence standard also applies when there
        is an established custodial environment with both parents. [Citations and
        quotation marks omitted.]

Therefore, based on these statements and its continuation to evaluate the best interest factors of
MCL 722.23, the trial court determined the existence of a joint custodial environment. Hence,
the only problem is with the apparent sequence of the Court’s findings, having referenced the
custodial environment determination after elucidating its findings on the best interest factors.
Because the trial court did, however, evaluate all of the necessary components for the
determination of a change of domicile, any discrepancy in the order or consideration is
irrelevant. Commensurate with this determination, the trial court also found that the change of
domicile would alter or change the custodial environment.

                                       C. Best Interest Factors

        Defendant also challenges the trial court’s best interests analysis and its conclusion that
the change of domicile was in the best interests of the minor children. The factors identified for
evaluating the best interests of the children are delineated in MCL 722.23. The trial court
determined the parties to be equal on factors (a), (e), and (f), with plaintiff favored on factors (b),
(c), (d), (g), (h), (i), and (j). Factors (k) and (l) were deemed inapplicable. Specifically,
defendant challenges the trial court’s findings on factors (b), (c), (d), (f), (g), (h), (i), (j), and (l)
as being against the great weight of the evidence. The trial court’s evidence and findings on each
factor are addressed individually.

        Factor (b) pertains to “[t]he capacity and disposition of the parties involved to give the
child love, affection, and guidance and to continue the education and raising of the child in his or
her religion or creed, if any.” MCL 722.23(b). The trial court noted that at the time of the
divorce proceedings plaintiff was favored on this factor and that plaintiff was again favored, now

                                                   -7-
“more heavily,” on this factor. In support of its determination, the trial court noted defendant’s
problems, historically, in parenting the children as they matured. Specifically, the trial court
referred to the problems that had arisen between defendant and Sarah during the prior divorce
proceedings and used this prior experience as a reason to express concern for defendant’s “future
relationships with the minor children as they age.” While the trial court implicitly acknowledged
that both parties were capable of providing the children with love and affection, it was clear that
favoring plaintiff on this factor stemmed from his ability to provide structured guidance for the
children to assure their educational performance and lessened stress. In support of this finding
was evidence that Martha had an extremely strained relationship with defendant and that when in
defendant’s custody she was not attending school and overall doing poorly. Even defendant’s
family recognized that defendant could not control Martha’s behavior.

        In contrast, Martha expressed a preference for the more structured environment provided
by plaintiff and his involvement in her school resulted in observable benefits regarding her
attendance and performance. Notably, two school professionals opined that Martha would be
benefited by changing her domicile to plaintiff’s home. The trial court gave particular weight to
the testimony of the school personnel premised on their status as professionals, their unequivocal
opinion regarding a preference for the custodial environment offered by plaintiff, and the
objective nature of their opinions due to the absence of any familial relationship of these
individuals to the parties. Given the acknowledged problems encountered regarding the children,
particularly Martha, in defendant’s home, the trial court did not err in favoring plaintiff on this
factor.

        MCL 722.23(c) deals with “[t]he capacity and disposition of the parties involved to
provide the child with food, clothing, medical care or other remedial care . . . ” “Factor c does
not contemplate which party earns more money; it is intended to evaluate the parties’ capacity
and disposition to provide for the children’s material and medical needs. Thus, this factor looks
to the future, not to which party earned more money at the time of trial, or which party
historically has been the family’s main source of income.” Berger v Berger, 277 Mich App 700,
712; 747 NW2d 336 (2008). The trial court recognized plaintiff’s greater capacity, now and in
the future, to have a sustainable income to support the minor children. Although defendant had
demonstrated some improvement in her financial acumen, questions still remained regarding her
independent ability to manage her finances. While not discussed by the trial court, contradictory
testimony was elicited indicating defendant’s occasional failure to maintain food in her home
and that when encountering financial difficulties, such as back taxes, she still sought the
assistance of plaintiff to intervene in her financial situation. Additionally, testimony implied that
the children had responsibility for assisting defendant with her medical concerns, which was a
particular stressor for Martha and Annie. As such, the trial court did not err in favoring plaintiff
on this factor.

        MCL 722.23(d) requires the trial court to consider “[t]he length of time the child has
lived in a stable, satisfactory environment, and the desirability of maintaining continuity.”
Although favoring plaintiff on this factor, the trial court opined that “[b]oth parties are
upstanding people who are capable of generally providing stability.” But noting the history of
problems that arose in defendant’s household, the trial court opined that her “inability to control
teenage children” had been demonstrated to “negatively affect[] both girls emotionally.” The
trial court particularly referenced testimony indicating that the children would leave defendant’s

                                                -8-
home for overnight periods due to defendant’s “dynamic with the girls [which] manifests in
tumultuous conflicts.” This factor, during the divorce proceedings, was evaluated with both
parties being deemed equal. Although plaintiff has obviously physically altered his residence, all
testimony suggested that his home, regardless of its physical location, is structured and non-
chaotic. The trial court did not err in favoring plaintiff on factor (d).

        MCL 722.23(f) encompasses the “moral fitness of the parties involved.” Although the
trial court deemed the parties equal on this factor, defendant contends she should have been
favored. “[Q]uestionable conduct is relevant to factor f only if it is a type of conduct that
necessarily has a significant influence on how one will function as a parent.” Fletcher v
Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994). Morally questionable conduct pertinent to
a parent’s moral fitness includes, but is not limited to, “verbal abuse, drinking problems, driving
record, physical or sexual abuse of children, and other illegal or offensive behaviors.” Id. at 887
n 6. There was no evidence adduced to support defendant’s contention of superiority on this
factor. Testimony indicated that plaintiff was supportive of defendant. He instructed the
children to respect and obey their mother and did not demean or speak negatively of her in their
presence. There was no evidence of illegal conduct engaged in by either party nor any
suggestion of questionable behavior. In contrast, defendant acknowledged that she had made
numerous negative comments regarding plaintiff and his wife to the minor children, which led to
them requesting her to cease this behavior. Furthermore, defendant had threatened to harm
herself in the presence of the minor children on more than one occasion. Therefore, the trial
court did not err in finding the parties equal on this factor.

        In accordance with MCL 722.23(g), the trial court must evaluate the “mental and
physical health of the parties involved.” There was no evidence of any physical or mental health
concerns pertaining to plaintiff. As noted by the trial court, defendant evidenced a prolonged
history of grand mal seizures, which factored into her ability to parent the children. Because of
her condition, defendant was unable to secure a driver’s license and was reliant on others,
including Martha, for transportation. Despite the positive testimony by defendant and other
individuals regarding defendant’s improved physical health, there was no evidence to support
these allegations. In fact, the defendant acknowledged having a seizure one month before the
domicile hearings. Specifically, the trial court found that defendant’s “neurological deficits are a
significant factor in her ability to effectively parent teenagers.” The trial court noted that its
observations were not intended to fault defendant for having the condition. They stated that she
“is a wonderful person” but recognized that it was necessary for them to analyze “how her
condition affects her parenting.” The trial court did not err in its determination that defendant’s
medical condition did subject her to limitations with regard to her parenting. Although not
mentioned by the trial court, testimony was elicited that, when stressed, defendant had made
statements of an intention to do self-harm in the presence of the children. Such statements by
defendant on more than one occasion suggest concerns regarding her mental health and ability to
cope with stress, which would negatively impact the children. The trial court did not err in
favoring plaintiff on this factor.

        MCL 722.23(h) refers to the “home, school, and community record of the child.” The
trial court favored plaintiff on this factor noting that the children were experiencing difficulties in
their current school situations, with Martha’s situation being dire given her risk of failing courses
and not graduating. Both children reported being subject to bullying in their current school

                                                 -9-
environments. Martha had substantial absences and tardies from school, almost exclusively
while in defendant’s custody. While Annie currently was not showing similar difficulties in her
school performance, past experiences, specifically Martha’s academic struggles, indicate a strong
potential for a similar effect on Annie’s future performance. In contrast, testimony and evidence
indicated that the children were provided more structure when in plaintiff’s care, which led to
increased school attendance and an improvement in academic performance, particularly for
Martha. Given the situation, the court found that “a fresh start is necessary for the children.”
Acknowledging that a change in schools would not necessarily guarantee a resolution to the
problems being faced, the trial court found that “the proposed change will dramatically improve
the children’s home, school, and community record.” This was bolstered by the testimony of
school personnel who opined that plaintiff’s greater involvement with the children would
facilitate their academic performance. The trial court did not err in favoring plaintiff on this
factor.

        Factor (i) addresses “[t]he reasonable preference of the child, if the court considers the
child to be of sufficient age to express preference.” MCL 722.23(i). “One of the . . . factors a
trial judge must consider in a custody dispute is the ‘reasonable preference of the child, if the
court deems the child to be of sufficient age to express preference.’” Bowers v Bowers, 190
Mich App 51, 55; 475 NW2d 394 (1991) (citation omitted). The trial court interviewed the
children and indicated that their preference was to reside with plaintiff. The trial court noted that
both children were emotional during their in camera interviews, with Martha displaying overt
upset and emotion due to the handling of the interview transportation by defendant. The
response of Martha led the trial court to be “very concerned about her emotional and
psychological status” to an extent never previously experienced and prompted it to “schedule an
immediate telephone conference with counsel to arrange for an expedited trial schedule.”

        It is recognized that “[t]he child’s preference does not automatically outweigh the other
factors, but is only one element evaluated to determine the best interests of the child.” Treutle v
Treutle, 197 Mich App 690, 694-695; 495 NW2d 836 (1992). However, due to the respective
ages of the minor children, their stated preference in this case is subject to greater weight. It is
important to note that defendant has implied that plaintiff has improperly influenced the minor
children’s stated preference, yet no evidence was submitted to substantiate this claim. In
addition, defendant attributes the children’s preference to the fears and stress resultant from
plaintiff’s move, yet ignores that Martha was evidencing sufficient anxiety and depression to
necessitate psychological intervention before plaintiff initiated the domicile change proceedings.
In addition, we find it somewhat hypocritical for defendant to attribute the stress experienced by
the minor children to plaintiff’s residence change when she had been the parent to initially
suggest moving with the children to another state or community within Michigan but ultimately
elected to remain in her current home. Based on the ages of the minor children and their clearly
expressed preference, the trial court correctly weighed this factor in favor of plaintiff.

        Factor (j) pertains to “[t]he 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.” MCL 722.23(j). In favoring plaintiff on this factor, the trial court
observed that “[e]ven in conflicts, Plaintiff took Defendant’s side and ordered the children to
obey Defendant and her rules.” In particular, “[d]efendant does not even allege that [p]laintiff
undermines her. The closest she comes is to claim that he abdicated co-parenting by straddling

                                                -10-
both Michigan and Kentucky and now wants to cut her out by changing the children’s domicile.”
There was no evidence adduced that plaintiff ever verbally demeaned defendant to others or the
minor children. In fact, the record indicates the opposite, stating that he was routinely supportive
of her and would intervene with the minor children while in her custody, when requested by
defendant. Testimony further indicated that plaintiff was willing to accommodate defendant’s
requests regarding parenting time with the children, was voluntarily offering to pay for their
transportation to assure parenting time with defendant, and had no demonstrated history of
undermining defendant to the minor children or interfering with her parenting time.

        In contrast, defendant admitted to making frequent negative statements regarding plaintiff
and his wife to the children and in the community. Evidence suggested that defendant did not
properly include plaintiff or indicate his correct phone number on the emergency contact card at
school for Martha, which resulted in a delay in him being notified of her hospitalization.
Although defendant alleged plaintiff was not responsive to her communications, the evidence
indicated that he would respond in a timely manner, given both his work situation and distance
when contacted. Plaintiff would also apprise defendant of any situations that arose during his
parenting time regarding the minor children, but defendant admittedly did not reciprocate.
Further, defendant acknowledged that she would routinely ignore attempts by plaintiff to
communicate with her by arbitrarily deciding not to open emails from plaintiff. Premised on
defendant’s lack of reciprocity in co-parenting with plaintiff, the trial court correctly evaluated
factor (j) as favoring plaintiff.

        Finally, the trial court determined that factor (l), comprising “any other factors considered
by the court to be relevant to a particular child custody dispute,” was inapplicable. MCL
722.23(j). In alleging error on this factor, defendant asserts the “court should have recognized
that the children’s best interests control here, and just as it found in 2008, the children need both
of their parents involved in their day to day lives to flourish.” Defendant contends that the only
reason this dispute arose was because plaintiff’s current wife prefers to live in Kentucky, which
does not comprise “a valid reason to disrupt the children’s joint established custodial
environment with both parents.” She further asserts that the failure of the trial court “to consider
the backdrop of this domicile case amounts to an abuse of discretion.” First, defendant’s
assertions regarding this factor comprise mere allegations with the absence of citation to any
legal authority. “[W]here a party fails to cite any supporting legal authority for its position, the
issue is deemed abandoned.” Berger, 277 Mich App at 715 (citation omitted). Second, the trial
court frequently referenced the history of this litigation in rendering its opinion and decision. As
such, the determinations made regarding a change of domicile did not occur in a vacuum as
suggested by defendant. Third, defendant’s contention that the sole basis for plaintiff’s desire to
change domicile is the residence of his current wife demonstrates her inexplicable denial of the
seriousness of the issues that have arisen pertaining to the well-being of her children. It further
ignores that plaintiff’s wife testified that she had primarily remained in Kentucky since their
marriage and that plaintiff has, for an extended time period, traveled between states in an attempt
to maintain the initial custody determination and exercise his parenting time.

         Defendant’s failure to recognize and acknowledge that significant concerns have arisen
after the initial custody determination, which suggest deterioration in the benefits afforded by the
initial custody award, only serves to further substantiate the trial court’s ultimate determination
on the best interest factors in this case.

                                                -11-
                                       D. Parenting Time

       Defendant also challenges the parenting time schedule delineated by the trial court,
suggesting it abdicated its responsibility in simply adopting the schedule suggested by plaintiff.
“Although appellate review of parenting-time orders is de novo, this Court must affirm the trial
court unless its findings of fact 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.”
Berger, 277 Mich App at 716. In accordance with decisions pertaining to custody, a trial court
must decide issues of parenting time on the basis of the best interests of the child. Id. In
accordance with MCL 722.27a(1):

       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. Except as otherwise provided in this
       section, parenting time shall be granted to a parent in a frequency, duration, and
       type reasonably calculated to promote a strong relationship between the child and
       the parent granted parenting time.

Defendant’s allegation that the trial court adopted a parenting time schedule consistent with the
schedule proposed by plaintiff is correct. Contrary, however, to her assertion that this similarity
evinces bias or an abdication of the trial court’s responsibility, reality dictates that such a
schedule is the only possible outcome, given the distance between the parties, to achieve the
stated purpose of providing the children greater stability and oversight during the school year.
Defendant is provided unfettered access by telephone and social media to the minor children, and
her contact is encouraged. Each year she is to receive two-thirds of the summer vacations for the
minor children, one-half of the Christmas holiday, and all of their spring breaks. Plaintiff has
voluntarily offered to provide the costs incurred for this transport to facilitate and assure
defendant’s parenting time. Defendant may also have parenting time in Kentucky with the minor
children upon the provision of sufficient notice to plaintiff and with the proviso that such visits
do not interfere with the children’s school attendance. Defendant suggests this last provision is a
hollow offer because she is unable to drive. This statement ignores the fact that the defendant
has plenty of adult children and other family members who are capable of providing her with
transportation.

         The trial court’s parenting time order was supported by the evidence adduced and a
realistic response to the concerns necessitating the change of domicile. The order will likely
ensure the children’s attendance and improved academic performance and assist in alleviating
the current stressors and strains being experienced between defendant and the children under the
previous schedule and conditions. Her suggestion that she should have been provided parenting
time for the entire summer, every holiday, and every other weekend suggests, at least to this
Court, that defendant’s concerns are primarily selfish in suggesting that the children should be
routinely subjected to hours of travel every other week and ignores the disruptive nature of such
a suggestion. Furthermore, defendant did not propose an alternative schedule to the trial court
but merely stood adamant regarding her contention that the current schedule of equal days should
remain in place.



                                               -12-
        “This Court has recognized that a change in domicile will almost always alter the parties’
parenting time schedule to some extent and has, thus, held that the parenting time schedule need
not be equal to the prior parenting time schedule in all respects. Parenting time is granted if it is
in the best interest of the child and in a frequency, duration, and type reasonably calculated to
promote strong parent-child relationships.” Brown v Loveman, 260 Mich App 576, 595; 680
NW2d 432 (2004) (citations omitted). While defendant’s time with the minor children is not at
the prior level, which entailed an equal sharing of time with the children, it is sufficient to
maintain her relationship with the children and the arrangement may actually facilitate an
improvement in their interactions. Given the demonstrated needs of the children, the parenting
schedule adopted by the trial court is consistent with their best interests, while simultaneously
promoting defendant’s relationship with her daughters.

        Defendant also asserted that the trial court erred in this matter by assuming or accepting
that it had to choose between two good parents, by granting a change of domicile, when a
reasonable alternative was to retain the current arrangement. This is a mischaracterization of the
trial court’s evaluation. The trial court specifically rejected defendant’s contention that the
children should remain in Michigan in their current residence and schools, while plaintiff
attempts to accommodate both his home life in Kentucky and his obligations in Michigan. The
trial court noted that such a proposed solution “would increase the stress and anxiety of the
children, while keeping them in virtually the same environment with the same problematic
dynamics.” In sum, defendant’s contention reflects a focus on her personal preferences rather
than a consideration of the best interests of the children.

        Finally, due to the repetition of allegations by defendant made in conjunction with her
arguments under this issue pertaining to the bias of the trial court, we will review the contention
of bias separately, infra.

                              II. ATTORNEY FEES AND COSTS

        Defendant asserts the trial court erred in denying her request for attorney fees.
Defendant’s assertion of error is based on both the law of the case doctrine and MCR 3.206(C).
“Awards of costs and attorney fees are recoverable only where specifically authorized by a
statute, a court rule, or a recognized exception.” Keinz v Keinz, 290 Mich App 137, 141; 799
NW2d 576 (2010) (citation omitted). Further:

       This Court reviews a trial court’s ruling on a motion for costs and attorney fees
       for an abuse of discretion. An abuse of discretion occurs when the decision
       results in an outcome falling outside the range of principled outcomes. A trial
       court’s findings of fact . . . may not be set aside unless they are clearly erroneous.
       [Id. (citations omitted).]

This Court reviews de novo, as an issue of law, whether the law of the case doctrine applies.
Kasben v Hoffman, 278 Mich App 466, 470; 751 NW2d 520 (2008).




                                                -13-
        First, we must address defendant’s assertion that the law-of-the-case doctrine applies
because of this court’s prior ruling following the appeal of the judgment of divorce.2 On remand,
the trial court, consistent with this Court’s instruction, awarded defendant $16,633.82 in post-
judgment attorney fees. In addition, the trial court granted defendant’s request for appellate
attorney fees in the amount of $30,378.24, stating, “The Court of Appeals awarded Defendant’s
counsel all the requested attorney fees incurred at trial, and the same rationale would apply to
appellate fees.” Defendant now seeks plaintiff to be responsible for her attorney fees for the
change of domicile action and anticipated attorney fees in conjunction with this appeal.

        “The law of the case doctrine holds that a ruling by an appellate court on a particular
issue binds the appellate court and all lower tribunals with respect to that issue.” KBD & Assoc,
Inc v Great Lakes Foam Technologies, Inc, 295 Mich App 666, 679; 816 NW2d 464 (2012).
“[T]he law-of-the-case doctrine only applies to issues actually decided—implicitly or
explicitly—on appeal.” Kasben, 278 Mich App at 470.

       The law of the case doctrine’s rationale is to maintain consistency and avoid
       reconsideration of matters once decided during the course of a single lawsuit; the
       doctrine does not limit an appellate court's power but, rather, is a discretionary
       rule of practice. A trial court fails to follow the law of the case when it revisits a
       matter on which this Court has already ruled. [Schumacher v Dep’t of Natural
       Resources, 275 Mich App 121, 128; 737 NW2d 782 (2007) (citation omitted).]

       Defendant seeks to improperly expand the law of the case doctrine. The trial court
followed this Court’s directive on remand pertaining to the decisions made in conjunction with
the judgment of divorce. However, the divorce is not at issue in this case. Instead, plaintiff is
seeking attorney fees for the change of domicile matter, which arose more than four years later.
The prior decision regarding the award of attorney fees in the divorce case does not
automatically entitle defendant to an award of attorney fees in this case because this case
presents a new issue. Defendant’s asserted need for assistance in the payment of her attorney
fees necessitates a re-evaluation of the current circumstances and any changes that have occurred
since the prior rulings. Therefore, the doctrine is inapplicable. Grievance Administrator v
Lopatin, 462 Mich 235, 260; 612 NW2d 120 (2000).

       To do as defendant suggests and automatically require plaintiff to be responsible for
defendant’s attorney fees ad infinitum and without re-evaluation would constitute an improper
expansion of the doctrine. To follow or implement defendant’s position regarding the
application of the law-of-the-case doctrine would comprise a mere rubber stamp of prior
decisions on the same subject matter but which encompass new or different proceedings


2
  Hinsberg v Hinsberg, unpublished opinion per curiam of the Court of Appeals, issued August
19, 2010 (Docket No. 290481). We note that the dissenting opinion stated that “[a] review of the
record indicates that [defendant] hired numerous attorneys during the duration of this litigation,
and she also refused to accept mediation or continue with the mediation process. The record also
reflects that [plaintiff] paid for the above mediation. On the basis of the total record, I conclude
that the trial judge did not abuse his discretion when allocating attorney fees.” Id. at 10.


                                               -14-
involving the same litigants. This would result in an automatic presumption of entitlement rather
than a reasoned analysis.

        Next, this Court must address defendant’s assertion of entitlement to attorney fees under
MCR 3.206(C). “Michigan follows the ‘American rule’ with respect to the payment of attorney
fees and costs. Under the American rule, attorney fees generally are not recoverable from the
losing party as costs in the absence of an exception set forth in a statute or court rule expressly
authorizing such an award.” Haliw v Sterling Hights, 471 Mich 700, 706-707; 691 NW2d 753
(2005) (citation omitted). The American rule is expressed within MCL 600.2405(6), which
provides that “[a]ny attorney fees authorized by statute or by court rule” may be awarded as
costs. Haliw, 471 Mich at 707. “In domestic relations cases, attorney fees are authorized by
both statute, MCL 552.13, and court rule, MCR 3.206(C).” Smith v Smith, 278 Mich App 198,
207; 748 NW2d 258 (2008), quoting Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825
(2005). Defendant sought the payment of her attorney fees incurred from the change of domicile
proceedings along with anticipatory appellate fees in accordance with MCR 3.206(C), which
states:

       (1) A party may, at any time, request that the court order the other party to pay all
       or part of the attorney fees and expenses related to the action or a specific
       proceeding, including a post-judgment proceeding.

       (2) A party who requests attorney fees and expenses must allege facts sufficient
       to show that

       (a) the party is unable to bear the expense of the action, and that the other party is
       able to pay, or

       (b) the attorney fees and expenses were incurred because the other party refused
       to comply with a previous court order, despite having the ability to comply.

Defendant’s claim is specifically brought pursuant to MCR 3.206(C)(2)(a).

        “This Court has interpreted this rule to require an award of attorney fees in a divorce
action ‘only as necessary to enable a party to prosecute or defend a suit.’ ” Myland v Myland,
290 Mich App 691, 702; 804 NW2d 124 (2010), quoting Gates v Gates, 256 Mich App 420, 438;
664 NW2d 231 (2003). “[A] party sufficiently demonstrates an inability to pay attorney fees
when that party’s yearly income is less than the amount owed in attorney fees.” Myland, 290
Mich App at 702; see also Loutts v Loutts, 298 Mich App 21, 24; 826 NW2d 152 (2012). In
addition, “[t]he party claiming entitlement to costs and fees has the burden of proving that the
amount requested is reasonable.” Windemere Commons I Ass’n v O’Brien, 269 Mich App 681,
683; 713 NW2d 814 (2006).

       As discussed by this Court:

       Attorney fees in a divorce action may be awarded when a party needs financial
       assistance to prosecute or defend the suit. That is, a party should not be required
       to invade assets to satisfy attorney fees when the party is relying on the same
       assets for support. Pursuant to MCR 3.206(C)(2)(a), the party requesting the fees

                                               -15-
        must allege facts sufficient to show that he or she is unable to bear the expense of
        the action, and that the other party is able to pay. [Smith, 278 Mich App at 207
        (citations and quotation marks omitted).]

Defendant has failed to prove need.

        Defendant receives approximately $62,000 a year from plaintiff in spousal and child
support. Plaintiff also provides defendant’s medical insurance. While plaintiff’s salary is
substantially higher with a base income of $235,000 a year, the trial court calculated, and it has
not been disputed, that plaintiff’s financial burdens are also significant, including having already
been ordered to pay in excess of $83,000 toward the attorney fees incurred by defendant from the
initial divorce action. As a consequence, the trial court calculated that plaintiff has
approximately $7,000 a month to pay his household expenses, which “is just over $1,800 more
than Defendant has monthly, which is hardly a huge disparity.”

        As referenced by the trial court, there was some testimony that defendant used the threat
of increasing or escalating attorney fees as a means to extort plaintiff’s cooperation to not pursue
a change of domicile for Annie. Although denied by defendant’s counsel, plaintiff’s attorney
suggested she was told that defendant’s attorney fees were at $35,000 and increasing,

        and that [plaintiff] would have to pay all of the fees because he’s always had to
        pay all of the fees. They were aware that you would have them pay all of the fees
        – him all of the fees because that’s what’s always happened in the past. On more
        than one occasion, we were told, because the bill went from $30,000 to close to
        $35,000, that if Annie was allowed to stay and Martha went, then [plaintiff]
        wouldn’t have to pay and that was relayed to [plaintiff].

Defendant’s counsel objected to the statement as inaccurate and a violation of settlement
negotiations under MRE 408, stating: “We were trying to settle this case because it’s not good
for these children to be litigating. It had nothing to do with fees though.” Defendant’s counsel
indicated the verbal exchange with plaintiff’s attorney was to inquire if plaintiff “considered the
fact that if we continue to litigate this, that there will be – I will go after fees. That’s what I said.
And the fees to date are about $30,000. I didn’t say trade Annie for $30,000 . . . ”

        MRE 408 states:

        Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or
        offering or promising to accept, a valuable consideration in compromising or
        attempting to compromise a claim which was disputed as to either validity or
        amount, is not admissible to prove liability for or invalidity of the claim or its
        amount. Evidence of conduct or statements made in compromise negotiations is
        likewise not admissible. This rule does not require the exclusion of any evidence
        otherwise discoverable merely because it is present in the course of compromise
        negotiations. This rule also does not require exclusion when the evidence is
        offered for another purpose, such as proving bias or prejudice of a witness,
        negating a contention of undue delay, or proving an effort to obstruct a criminal
        investigation or prosecution.

                                                  -16-
In this instance, the reference of these discussions by the trial court was violative of MRE 408.
The issue of attorneys fees must be re-evaluated by the trial court in light of this ruling and in
light of our child support ruling, infra.

                                    III. DISQUALIFICATION

         Defendant asserts on appeal that the trial judge should be disqualified from hearing future
proceedings in this matter premised on his bias against defendant. The issue of disqualification
was never raised in the trial court; however, at the hearing on the motion for a stay and attorney
fees, defendant’s counsel implied bias by the trial court. At that hearing, defendant’s counsel
suggested extrajudicial conduct by the trial court by implying that plaintiff somehow ascertained
the trial court’s ruling before it was issued. Upon challenge by the trial court for this statement,
defendant’s counsel backed away from her position, stating, “No. I would never make a
comment like that.”

        To preserve an issue of judicial qualification for appeal to this Court, a party is required
to first seek disqualification in the trial court. If the trial court judge denies the request for
disqualification, the matter is referred to the chief judge for review. MCR 2.003(C)(3); Welch v
Dist Court, 215 Mich App 253, 258; 545 NW2d 15 (1996). Because defendant raises the issue
of judicial disqualification for the first time on appeal, it is not preserved, and this Court’s review
is for plain error affecting defendant’s substantial rights. Hilgendorf v St John Hosp & Med Ctr
Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001).

         To disqualify a judge on the basis of bias, a showing of both actual and personal
prejudice is required. Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996).
The challenged bias “must have its origin in events or sources of information gleaned outside the
judicial proceeding.” Id. The opinions of a judge, developed on the basis of facts or events
occurring in the proceeding will not serve as a reason for disqualification “unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. at 496
(citation omitted). The party asserting bias or partiality has a heavy burden to overcome the
presumption of impartiality. Id. at 497. It is firmly established that repeated rulings against a
litigant, even if the rulings are found to be erroneous, do not establish a basis for disqualification.
Wayne Co Prosecutor v Parole Bd, 210 Mich App 148, 155; 532 NW2d 899 (1995).

        Defendant asserts that the trial court failed to impartially evaluate the evidence and was
improperly influenced by its prior perceptions of defendant as evidenced by its rulings in favor
of plaintiff. In accordance with MCR 2.003(C)(1)(a), a judge is subject to disqualification when
“[t]he judge is biased or prejudiced for or against a party or attorney.”

       Defendant’s contention of bias and the necessity for disqualification is unfounded. A
review of the transcripts shows the trial court to have been even-handed in its dealings with
counsel representing the parties and an absence of any behavior on the part of the trial judge to
suggest a negative or a biased attitude or treatment of defendant, her counsel, or witnesses. The
mere fact that defendant’s case was not persuasive to the trial court is not indicative of bias.
Although the trial judge deemed plaintiff to be an exemplary and more effective parent, he was
also complimentary of defendant and did not question her motivations or sincerity in the
proceedings. Hence, there exists no basis in the record to support defendant’s contention of bias.

                                                 -17-
        In addition, defendant criticizes the trial judge for his failure to adequately consider the
history of this case and its prior rulings while concurrently implying the trial court was biased in
relying on its prior impressions and decisions. Defendant cannot have it both ways. The trial
court’s rulings demonstrate that it did not decide this matter in a vacuum. Instead, it recognized
prior concerns that arose in the earlier litigation between the parties while still evaluating the
current circumstances independently using its earlier experiences with the parties as context but
not for purposes of predetermination. Hence, defendant’s assertions of bias and the necessity for
disqualification are without support in the record.

                                     IV. CHILD SUPPORT

        On cross-appeal, plaintiff contends the trial court erred in not modifying his child support
obligation to reflect the changes in custody and domicile. Plaintiff denies an agreement with
defendant to maintain the current rate of child support and argues that the trial court improperly
deviated from the child support guidelines without elucidating its reasons. Defendant asserts that
plaintiff’s failure to request a modification comprised an agreement between the parties not to
seek an alteration in child support or to voluntarily pay in excess of the formula. In addition,
defendant argues that plaintiff’s request for a modification of child support on appeal is contrary
to the position he took on the subject in the trial court and is, therefore, precluded.

        “Generally, an issue is not properly preserved if it is not raised before, and addressed and
decided by, the trial court. Hines v Volkswagen of America, Inc, 265 Mich App 432, 443; 695
NW2d 84 (2005). The issue of child support was not raised in the change of domicile
proceedings, and plaintiff did not indicate in the lower court that he was seeking an adjustment in
child support. The issue is, therefore, not preserved. As discussed in Fisher v Fisher, 276 Mich
App 424, 427; 741 NW2d 68 (2007) (citations omitted):

       Generally, this Court reviews child support orders and orders modifying support
       for an abuse of discretion. Whether the trial court properly acted within the child
       support guidelines is a question of law that this Court reviews de novo. This
       Court also reviews questions of statutory construction de novo.

This Court reviews unpreserved issues for plain error that affected substantial rights. Rivette v
Rose-Molina, 278 Mich App 327, 328; 750 NW2d 603 (2008). To demonstrate plain error, it
must be shown that “(1) an error occurred (2) that was clear or obvious and (3) prejudiced the
party, meaning it affected the outcome of the trial court proceedings.” See Duray Dev, LLC v
Perrin, 288 Mich App 143, 150; 792 NW2d 749 (2010).

       MCL 552.605(2) requires that a trial court order child support “in an amount determined
by application of the child support formula developed by the state friend of the court bureau [the
Michigan Child Support Formula (MCSF) Manual]” unless the court determines that
“application of the child support formula would be unjust or inappropriate.” In accordance with
MCL 552.605:

       (1) If a court orders the payment of child support under this or another act of the
       state, this section applies to that order.



                                               -18-
       (2) Except as otherwise provided in this section, the court shall order child
       support in an amount determined by application of the child support formula
       developed by the state friend of the court bureau as required in section 19 of the
       friend of the court act, MCL 552.519. The court may enter an order that deviates
       from the formula if the court determines from the facts of the case that application
       of the child support formula would be unjust or inappropriate and sets forth in
       writing or on the record all of the following:

       (a) The child support amount determined by application of the child support
       formula. How the child support order deviates from the child support formula.

       (b) The value of property or other support awarded instead of the payment of
       child support, if applicable.

       (c) The reasons why application of the child support formula would be unjust or
       inappropriate in the case.

       (3) Subsection (2) does not prohibit the court from entering a child support order
       that is agreed to by the parties and that deviates from the child support formula, if
       the requirements of subsection (2) are met.

To determine the appropriate amount of child support, a trial court is required to follow the
MCSF, or provide reasons for failing to do so. Stallworth v Stallworth, 275 Mich App 282, 284;
738 NW2d 264 (2007). The determination of child support is for the court, not the parties. See,
e.g., Adamczyk v Adamczyk, 155 Mich App 326, 328; 399 NW2d 508 (1986). The needs of the
children comprise a primary consideration in a court’s determination of the amount of child
support to be paid, Kalter v Kalter, 155 Mich App 99, 104; 399 NW2d 455 (1986), in
conjunction with the parents’ ability to pay, Wilkins v Wilkins, 149 Mich App 779, 792; 386
NW2d 677 (1986). “[A] child support order may be modified by the trial court ‘upon a showing
by the petitioning party of a change in circumstances sufficient to justify [the] modification.’”
Clarke v Clarke, 297 Mich App 172, 188-189; 823 NW2d 318 (2012) (citation omitted).

        The trial court, despite the change in domicile and the determination that plaintiff was to
have “joint custody with primary custody . . . for purposes of school,” did not change plaintiff’s
current child support obligation. An explanation for the continued award of child support at the
previous level was not provided even though plaintiff now retains the majority of overnights with
the minor children and has been obligated to provide transportation costs for the children in
conjunction with defendant’s parenting time. It is difficult to comprehend why defendant would
continue to receive child support, at the previous level, given the lack of a perceived benefit to
the children of the expenditure of such funds because of the reduction in the amount of
overnights defendant will be providing care for the children.

       The trial court did not address the issue of child support other than to continue its
payment to defendant unabated from the prior level. Plaintiff’s assumption of responsibility for
increased expenses for the minor children, based on their changed residence and costs of
transportation to assure parenting time for defendant, was not addressed. The trial court did not
comply with MCL 552.605(2) based on the failure to determine and apply the child support

                                               -19-
formula given the change in the domicile and custodial situation of the children. In addition, the
trial court did not provide an explanation for not applying the formula or for any deviation from
the formula, which is presumed based on the increase in overnights of the children with plaintiff.
As such, the matter of the modification of child support is remanded to the trial court for
compliance with the applicable statutory procedures and the delineation of its findings,
particularly with regard to any determination to not follow the formula.

        Defendant contends that because plaintiff indicated he was not seeking a modification of
child support, that this comprised an enforceable agreement between the parties. Plaintiff denies
the existence of any such agreement. Plaintiff did not request a modification of support.
However, he also only sought a change in domicile and did not request a change in custody. The
trial court determined, based on the change of domicile, that a change in custody was warranted.
Hence, plaintiff cannot be faulted for an outcome he did not pursue. Although parties may agree
to an enhanced support obligation, it is natural to presume that in those situations the person
receiving the additional support would also have the minor children, which is not the
circumstance in this case.

        In addition, defendant asserts that plaintiff’s affirmative indication that he was not
seeking a modification in child support cannot be challenged because it would be a position
contrary to that taken in the trial court. “A party who expressly agrees with an issue in the trial
court cannot then take a contrary position on appeal.” Grant v AAA Mich/Wis, Inc (On Remand),
272 Mich App 142, 148; 724 NW2d 498 (2006). “A litigant may not harbor error, to which he or
she consented, as an appellate parachute.” In re Gazella, 264 Mich App 668, 679; 692 NW2d
708 (2005), superseded by statute on other grounds MCL 712A.19b(5). There is a two-fold basis
for the inapplicability of these limitations on the issue of child support modification in this
matter. The first is that plaintiff merely stated he was not seeking a change in child support in
conjunction with his motion for change of domicile. This does not comprise an agreement,
which plaintiff is now seeking to avoid. The second, and related, reason for inapplicability is the
recognition that child support orders are always open to review and modification “upon a finding
of a substantial change in circumstances.” MCL 552.517b(8).

       Based on the lack of an evidentiary record for this Court’s review, the issue of child
support modification is remanded to the trial court for compliance with the relevant statutory
provisions and explanation. See Smeester v Pub-N-Grub, Inc, 442 Mich 404, 408; 500 NW2d
742 (1993) (“If the Court of Appeals determines that the record below is insufficient to make [a]
determination[], it should, while retaining jurisdiction, remand to the trial court for further
development of the record regarding that and such other determinations as the Court of Appeals
deems appropriate.”).

       We affirm in part, reverse in part and remand to the trial court for further proceedings
consistent with this opinion. We retain jurisdiction.

                                                            /s/ Amy Ronayne Krause
                                                            /s/ Elizabeth L. Gleicher
                                                            /s/ Cynthia Diane Stephens



                                               -20-
