                           STATE OF MICHIGAN

                            COURT OF APPEALS



CHRISTOPHER MARK GUCWA,                                               UNPUBLISHED
                                                                      September 21, 2017
               Plaintiff-Appellee,

v                                                                     No. 336807
                                                                      St. Clair Circuit Court
                                                                      Family Division
MARANDA LYNN LEE,                                                     LC No. 14-002509-DC

               Defendant-Appellant.


Before: BECKERING, P.J., and MARKEY and RIORDAN, JJ.

PER CURIAM.

        Defendant appeals by right an order dismissing her motion to change custody. We vacate
this order and remand for further proceedings consistent with this opinion.

        This case arises from defendant’s motion to change the primary residence of plaintiff’s
and defendant’s daughter from plaintiff’s home in Capac, Michigan, to defendant’s home in
Lincoln Park, Michigan, and to have the minor child attend Lincoln Park Schools. On appeal,
defendant argues that she satisfied her burden of establishing a proper cause or change in
circumstances pursuant to MCL 722.27(1)(c) to warrant a review of the 2015 custody order
because a change of circumstances occurred when defendant moved out of the custodial home,
and proper cause exists because plaintiff drinks heavily, physically attacked defendant, and relies
on a third party to provide overnight care to the minor child when the minor child is in his care.
We hold that the trial court erred in immediately transferring defendant’s custody motion to the
Friend of the Court before determining whether proper cause or change of circumstances existed.

        A trial court’s determination regarding whether a party has demonstrated proper cause or
a change of circumstances under MCL 722.27(1)(c) is reviewed under the great weight of the
evidence standard. Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009). Under
this standard, this Court defers to the trial court’s findings of fact unless such findings “ ‘clearly
preponderate in the opposite direction.’ ” Id., citing Fletcher v Fletcher, 447 Mich 871, 878; 526
NW2d 889 (1994). Three standards of review are used in child custody matters:

       The great weight of the evidence standard applies to all findings of fact. A trial
       court’s findings regarding the existence of an established custodial environment
       and regarding each custody factor should be affirmed unless the evidence clearly
       preponderates in the opposite direction. An abuse of discretion standard applies
                                                 -1-
       to the trial court’s discretionary rulings such as custody decisions. A trial court
       commits clear legal error when it incorrectly chooses, interprets, or applies the
       law. [Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations
       omitted).]

The Child Custody Act provides the standard of review applicable to this matter:

       To expedite the resolution of a child custody dispute by prompt and final
       adjudication, 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 the
       evidence or committed a palpable abuse of discretion or a clear legal error on a
       major issue. [MCL 722.28.]

       The trial court did not follow proper procedure in deciding defendant’s custody motion;
consequently, we vacate the orders dismissing it and denying defendant’s motion for
reconsideration and remand this matter to the trial court for further proceedings.

         In Bowling v McCarrick, 318 Mich App 568, 569; ___ NW2d ___ (2017), the defendant
filed a motion to change the physical custody of one of the parties’ children from the plaintiff to
the defendant. This Court noted that the trial court may only modify or amend a custody order
for proper cause or a change of circumstance if it is in the best interest of the child and that the
moving party bears the burden of demonstrating proper cause or a change in circumstances by a
preponderance of the evidence. Id. at 569-570. The moving party must meet this burden before
the trial court can consider whether an established custodial environment exists and then conduct
a review of the best interest factors. Id. at 570. But in Bowling, the defendant’s motion to
change custody was immediately referred to the Friend of the Court for a “conciliation
conference,” as required by a local administrative order. Id. The order stated that if the parties
did not reach an agreement at the conciliation conference, the conciliator would prepare a
recommendation to the circuit court that would become the court’s final order “unless either
party files an objection, in which case a hearing will be held.” Id.

        In Bowling, the parties attended the conference, but they did not reach an agreement.
Moreover, this Court was not provided with a record of such conference on appeal, if one were
even maintained. The conciliator’s report recommended that there was proper cause or a change
in circumstances to warrant a review of the custody order and that primary physical custody be
awarded to the defendant based on the best interest factors. Id. at 571. The plaintiff filed an
objection, and a hearing was held. Id. The plaintiff challenged the order awarding custody to the
defendant on appeal and argued that the court could not consider the conciliator’s report to
determine the threshold burden or the best interest factors. Id. This Court applied MCL
552.505(1)(g),1 which states that such reports cannot be considered to determine the threshold


1
 The statute provides in pertinent part that “[i]f custody has been established by court order, the
court shall order an investigation [by the friend of the court] only if the court first finds that
proper cause has been shown or that there has been a change of circumstances.” MCL
552.505(1)(g) (emphasis added).


                                                -2-
question of whether proper cause or a change in circumstances exists to warrant review of an
existing custody order. Bowling, 318 Mich App at 571. Furthermore, a the trial court can only
order an investigation by the friend of the court after the trial court first finds that proper cause or
a change of circumstances exists. Id. This Court vacated the trial court’s order because “the
court’s ruling on the threshold question may have been influenced by the portion of the [friend of
the court’s] report addressing the best interests, which would put the best interest cart before the
threshold horse.” Id. at 572.

       In this case, the record evidences that defendant’s motion for a change in custody was
also immediately referred to the Friend of the Court before the trial court determined whether the
threshold question of whether proper cause or a change in circumstances existed to warrant
review of the existing custody order. The St. Clair County Friend of the Court Handbook
provides the following procedure regarding custody motions:

               Custody is disputed when a disagreement exists regarding the custodial
       arrangement and the matter is brought before the court. A custody dispute may
       occur prior to a final custody order being entered or when one parent petitions the
       court to change custody from an existing order. If a parent is requesting a change
       in a current custody order and there is no agreement, a motion for change of
       custody must be filed. An affidavit alleging change of circumstance or proper
       cause must be filed with the motion. . . .

               Once a motion for change of custody has been filed, a referee hearing will
       be scheduled for a recommendation as to whether a change of circumstances or
       proper cause threshold has been met. The referee may recommend dismissal of
       the motion if sufficient change of circumstances or proper cause has not occurred.
       If the referee determines that there is a sufficient change of circumstances or
       proper cause, the issue will be set before the judge. Either party may object to the
       recommendation made by the referee in writing within 21 days and the issue of
       change of circumstances or dismissal and the issue will be set before the Judge
       [sic].

              If a [c]ourt finds that there is sufficient change in circumstances or proper
       cause to investigate custody[,] the court may order the parties to participate with
       mediation services or schedule an evidentiary hearing.[2]

       Defendant indicates that this hearing took place, but apparently no record was made.
Rather, there is a certificate of mailing dated October 13, 2016, indicating that the Friend of the
Court mailed both parties a proposed order to dismiss defendant’s custody motion. On October
31, 2016, defendant filed her objections to the proposed order. The parties were issued a notice
of hearing and to appear for a hearing scheduled for December 1, 2016, regarding the entry of


2
        St.     Clair       County        Friend    of    the      Court     Handbook
<http://www.stclaircounty.org/Offices/foc/forms/FOC%20Handbook.pdf?meid=111> (accessed
July 6, 2017).


                                                  -3-
the order dismissing the custody motion. This hearing was rescheduled and occurred on
December 15, 2016. With respect to the merits of defendant’s motion, the trial court merely
stated that “[t]he referee’s decision was appropriate, the threshold has not been met and the order
dismissing custody will issue.” The trial court did not further elaborate.

       The same improper procedure that occurred in Bowling occurred in this case.
Defendant’s motion to change custody was immediately referred to the Friend of the Court
before the trial court determined that proper cause or a change of circumstances existed as
required by MCL 552.505(1)(g). Bowling, Mich App at 571-572. The trial court erred in doing
so.

      We vacate the trial court’s order dismissing defendant’s motion to change custody and
remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

                                                            /s/ Jane M. Beckering
                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Riordan




                                                -4-
