                           STATE OF MICHIGAN

                            COURT OF APPEALS



GREGORY VESSELS and AMY SARAFIAN,                                      UNPUBLISHED
                                                                       October 22, 2015
               Plaintiffs-Appellants,

v                                                                      No. 322122
                                                                       Washtenaw Circuit Court
MANDY VESSELS,                                                         LC No. 14-000473-DZ

               Defendant-Appellee.


Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

        Plaintiffs Gregory Vessels and Amy Sarafian sought grandparenting time pursuant to
MCL 722.27b. The trial court entered an order for grandparenting time, but the order provided
for grandparenting time “at the discretion” of the child’s mother, defendant Mandy Vessels, who
adamantly opposed any grandparenting time. Plaintiffs now appeal. We vacate the order and
remand for entry of an order dismissing the complaint.

                     I. ORDER PERMITTING GRANDPARENTING TIME

        Plaintiffs argue that the trial court erred in granting grandparenting time at the discretion
of defendant. While we hold that the trial court erred in entering the order, the remedy is to
vacate it and to dismiss the complaint.

                                  A. STANDARDS OF REVIEW

        “Orders concerning grandparenting time 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.” Keenan v Dawson,
275 Mich App 671, 679; 739 NW2d 681 (2007) (brackets and quotation marks omitted). “A trial
court’s findings of fact are not against the great weight of the evidence unless the evidence
clearly preponderates in the opposite direction.” Id. at 679-680. Under the palpable abuse of
discretion standard, an abuse of discretion occurs “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.” Mitchell v Mitchell, 296 Mich App 513, 522; 823
NW2d 153 (2012) (citation and quotation marks omitted). “Clear legal error occurs when the
trial court errs in its choice, interpretation, or application of the existing law.” Sturgis v Sturgis,
302 Mich App 706, 710; 840 NW2d 408 (2013) (citation and quotation marks omitted). Further,

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“[t]he interpretation and application of a statute presents a question of law that the appellate
court reviews de novo.” Book-Gilbert v Greenleaf, 302 Mich App 538, 541; 840 NW2d 743
(2013).

                                         B. ANALYSIS

       MCL 722.27b governs orders for grandparenting time. Plaintiffs moved for visitation
under MCL 722.27b(1)(f),1 which provide the following:

       (1) A child’s grandparent may seek a grandparenting time order under 1 or more
       of the following circumstances:

                                              ***

       (f) In the year preceding the commencement of an action under subsection (3) for
       grandparenting time, the grandparent provided an established custodial
       environment for the child as described in [MCL 722.27], whether or not the
       grandparent had custody under a court order.

        It was undisputed that after the two-month-old child was removed from defendant’s care
in March 2013, she was placed in the care of plaintiffs. The child remained in the care of
plaintiffs for the next nine months, thereby creating an established custodial environment over
this period. Being that plaintiffs provided this environment within a year of the complaint being
filed in March 2014, subsection (f) gave plaintiffs standing to pursue their request for
grandparenting time.

       However, having standing is only the first hurdle for grandparents to clear.         MCL
722.27b(4)(b) further provides that

       [i]n order to give deference to the decisions of fit parents, it is presumed in a
       proceeding under this subsection that a fit parent’s decision to deny
       grandparenting time does not create a substantial risk of harm to the child’s
       mental, physical, or emotional health. To rebut the presumption created in this
       subdivision, a grandparent filing a complaint or motion under this section must
       prove by a preponderance of the evidence that the parent’s decision to deny
       grandparenting time creates a substantial risk of harm to the child’s mental,
       physical, or emotional health. If the grandparent does not overcome the



1
  Plaintiffs also relied on MCL 722.27b(1)(e), which provides that a grandparent can seek
grandparenting time if, “[e]xcept as otherwise provided in subsection (13), legal custody of the
child has been given to a person other than the child’s parent, or the child is placed outside of
and does not reside in the home of a parent.” But that subsection was not pertinent at the time of
the motion hearing because the child, who had been removed from defendant’s care, was placed
back with defendant and the CPS case was closed.


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       presumption, the court shall dismiss the complaint or deny the motion. [Emphasis
       added.]

Here, the trial court expressly stated on the record that “I don’t think statutorily [plaintiffs] have
met [their] burden. I don’t make a finding where I would impose grandparent visitation . . . .”
The court later reiterated, “I don’t think [plaintiffs] have met that burden for me to impose
[visitation].” Notably, on appeal, plaintiffs do not challenge the trial court’s finding on this
point. Moreover, even if this finding was challenged, we are not convinced that the evidence
clearly preponderates in the opposite direction. Therefore, because the court’s finding was not
against the great weight of evidence, we will not disturb it. See Keenan, 275 Mich App at 679-
680.

        Nevertheless, the trial court “granted” plaintiffs’ motion,2 which is contrary to the express
language in statute. Upon finding that plaintiffs failed to overcome the presumption articulated
in MCL 722.27b(4)(b), the court was required to dismiss the complaint or deny the motion. See
Smitter v Thornapple Twp, 494 Mich 121, 136; 833 NW2d 875 (2013) (explaining that “the word
‘shall’ generally indicates a mandatory directive, not a discretionary act”). Therefore, it is
evident that the trial court committed a clear legal error by misapplying the existing law.

        Plaintiffs’ argument on appeal presupposes that the trial court properly entered an order
for grandparenting time; however, our review of the record demonstrates that the trial court did
not comply with the procedures and requirements set forth in MCL 722.27b, which constitutes
clear legal error. Because the trial court’s finding that plaintiffs did not meet their burden is not
against the great weight of the evidence, and because the trial court was required to dismiss the
complaint or deny the motion under the express language of MCL 722.27b, we vacate the order
granting grandparenting time and remand to the trial court to dismiss the complaint.

                                 II. DEFAULTED DEFENDANT

         Plaintiffs also argue on appeal that the trial court improperly allowed defendant, who was
defaulted, to participate in the motion hearing. Plaintiffs claim that the trial court impermissibly
allowed defendant to participate in contravention of MCR 2.603(A)(3).3 This particular issue
was not raised at the trial court and is not preserved. See Polkton Charter Twp v Pellegrom, 265
Mich App 88, 95; 693 NW2d 170 (2005). We therefore decline to address the issue. See id.
While “this Court may disregard the issue preservation requirements and review may be granted
if failure to consider the issue would result in manifest injustice,” id. at 95-96 (citations omitted),


2
  While the court technically granted the motion, its value is patently dubious, as it allowed
visitation only at the discretion of defendant. While defendant stated previously in the
proceedings that she would allow plaintiffs to visit, she thereafter vowed to not allow plaintiffs
any visitation whatsoever. The court acknowledged that it was only entering the order because
of this prior “agreement.”
3
 MCR 2.603(A)(3) provides that a defaulted party “may not proceed with the action until the
default has been set aside by the court in accordance with subrule (D) or MCR 2.612.”


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manifest injustice would not result by declining to address this issue here because, even ignoring
defendant’s participation at the hearing, plaintiffs provided no evidence at the hearing to rebut
MCL 722.27b(4)(b)’s presumption that the denial of “grandparenting time creates a substantial
risk of harm to the child’s mental, physical, or emotional health.”

      We vacate the order granting grandparenting time and remand for the dismissal of the
complaint. We do not retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Henry William Saad
                                                            /s/ Joel P. Hoekstra




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