                          STATE OF MICHIGAN

                           COURT OF APPEALS



DEBRA BETH STERNAMAN, also known as                                 UNPUBLISHED
DEBORA BETH CURRY,                                                  July 31, 2018

               Plaintiff-Appellee,

v                                                                   No. 340722
                                                                    Kalamazoo Circuit Court
EDWARD CARL STERNAMAN,                                              LC No. 2014-007398-DM

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and MURPHY and MARKEY, JJ.

PER CURIAM.

       Defendant appeals as of right the trial court’s order denying his motion to change custody
and parenting time. We affirm.

        Defendant and plaintiff married in 2009, and they divorced in October 2015. The parties
had two children during the marriage. Pursuant to a consent judgment of divorce, the parties
received joint legal custody of the children. The judgment did not expressly award physical
custody. Instead, the judgment provided both parties with “parenting time.” Specifically, the
judgment stated that defendant would have parenting time with the children (1) on alternating
weekends from Friday at 7:30 a.m. until Monday morning at 7:30 a.m., (2) overnight every other
Wednesday, and (3) every other Tuesday from 7:30 a.m. until 7:30 p.m. Plaintiff received “all
other parenting time.” The judgment of divorce also addressed holidays and provided both
parties with weeklong “blocks of parenting time” during the year. In total, the parties agree that
plaintiff received 240 overnights per year while defendant received 125 overnights per year.

        In September 2016, defendant filed a motion to change custody and parenting time.
Defendant requested “joint legal and joint physical custody” of the children with a 50/50 split of
parenting time on an alternating week-on, week-off schedule. Defendant did not allege anything
remotely resembling proper cause or a change in circumstances that would warrant changing
custody under Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003). Instead,
defendant took the position that his motion amounted to a request to modify parenting time under
Shade v Wright, 291 Mich App 17, 28; 805 NW2d 1 (2010) and that it would be in the best
interests of the children to spend more time with him. Although defendant requested an
alternating-week parenting time schedule, at hearings relating to his motion he also stated that he
would settle for one or two additional overnights per fortnight.

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        The hearing referee concluded that there was an established custodial environment with
plaintiff and that defendant’s request for additional parenting time was in effect a request to
change custody. Finding no circumstances that would warrant revisiting custody under
Vodvarka, the hearing referee recommended denial of defendant’s motion. Defendant sought a
de novo hearing before the trial court, and the trial court affirmed the referee’s recommendation,
concluding that defendant’s requests for extra days would result in a change of custody which
was not warranted under Vodvarka. Defendant now appeals as of right.

        On appeal, defendant argues that an established custodial environment exists with both
parents and that granting his request for additional time with the children would not alter the
established custodial environment, meaning that the standards in Shade, not Vodvarka, apply.
Under Shade, defendant contends that grounds for modifying parenting time exist because there
have been changes to the children’s circumstances, including the facts that the children are older,
plaintiff has remarried, and plaintiff has had another baby. According to defendant, he should
have been afforded an evidentiary hearing to present evidence showing that an established
custodial environment exists with both parents and that modification of parenting time would be
in the children’s best interests. Defendant’s arguments are without merit.

        “All custody orders must be affirmed on appeal unless the circuit court's findings were
against the great weight of the evidence, the circuit court committed a palpable abuse of
discretion, or the circuit court made a clear legal error on a major issue.” Pierron v Pierron, 282
Mich App 222, 242; 765 NW2d 345 (2009). “Under the great weight of the evidence standard,
this Court should not substitute its judgment on questions of fact unless the facts clearly
preponderate in the opposite direction.” Shade, 291 Mich App at 21. “In child custody cases,
[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.” Id. (quotation marks and citation omitted). “Clear legal error occurs when the
trial court errs in its choice, interpretation, or application of the existing law.” Id. (quotation
marks and citation omitted).

        “As set forth in MCL 722.27(1)(c), when seeking to modify a custody or a parenting-
time order, the moving party must first establish proper cause or a change of circumstances
before the court may proceed to an analysis of whether the requested modification is in the
child's best interests.” Lieberman v Orr, 319 Mich App 68, 81; 900 NW2d 130 (2017). The
standards for this threshold showing—and the subsequent burden of proof for establishing that
the proposed change is in the child’s best interests1—differ depending on whether the moving
party seeks to change custody or modify parenting time. See id. The standards applicable to a



1
  “In matters affecting custody, when the child has an established custodial environment with
each parent, the movant must prove by clear and convincing evidence that the proposed change
is in the best interests of the child.” Lieberman, 319 Mich App at 83-84. “In a parenting-time
matter, when the proposed change would not affect the established custodial environment, the
movant must prove by a preponderance of the evidence that the change is in the best interests of
the child.” Id. at 84.


                                                -2-
change of custody are set forth in Vodvarka, while the standards for modifying parenting time
are described in Shade. Id. at 81. Notably, “although normal life changes typically are
insufficient to establish the proper cause or change of circumstances required to proceed to
consideration of a child custody order [under Vodvarka], such changes may be sufficient for a
court to consider modification of a parenting-time order [under Shade] unless the
requested change would alter the established custodial environment.” Id. at 83.

        Regardless of a party’s label for the motion, if a proposed change in parenting time would
alter an established custodial environment, then the Vodvarka framework is appropriate. Id. at
83, 86 n 9. In determining whether a proposed change to parenting time would alter an
established custodial environment, an important consideration is to what extent the proposed
change will decrease a parent’s time with the child. Id. at 89-90. “Whereas minor modifications
that leave a party's parenting time essentially intact do not change a child's established custodial
environment, significant changes do.” Id. (citations omitted). In other words, “a substantial
modification of parenting time” that significantly reduces the amount of time that a parent with
an established custodial environment spends with a child would alter the established custodial
environment, and such a proposed change must be considered under Vodvarka. Id. at 89-91.

        In this case, the dispositive question is whether defendant’s proposed change constitutes a
modification of parenting time or a change that would in effect modify an established custodial
environment. In this regard, the undisputed evidence demonstrates that under the judgment of
divorce, plaintiff has 240 overnights while defendant received 125. Under this arrangement, in a
typical two week period, plaintiff has 10 overnights and defendant has four overnights with the
children. The exact extent of defendant’s proposed modification to this arrangement is
something of a moving target. Initially, defendant sought a 50/50 split of parenting time under
which each parent would have 7 nights per two week period. He later equivocated on that
request, indicating that he would settle for an additional 1 or 2 overnights every two weeks,
which would increase his overnights to 5 or 6 in a two week span while reducing plaintiff’s
overnights to 8 or 9.

        Overall, plaintiff currently has almost twice as many overnights as defendant, and
defendant’s proposal is to bring the parties equal, or nearly equal, and to reduce plaintiff’s
parenting time days by a minimum of 26 to as many as 57½ per year. This is not a “minor
modification[]” that leaves plaintiff’s parenting time “essentially intact,” Lieberman, 319 Mich
App at 89-90, or “very close to the same number of parenting time days” that she enjoyed under
the judgment of divorce, Shade, 291 Mich App at 27 n 3. Instead, what defendant actually
proposes is a substantial increase in his number of overnights and a corresponding substantial
reduction in plaintiff’s overnights. Defendant does not dispute that the children have an
established custodial environment with plaintiff,2 and this significant change to plaintiff’s

2
  Defendant contends that there is an established custodial environment with both parents. But
even if an established custodial environment also exists with defendant, changes that
substantially reduce plaintiff’s time with the children would cause a change in an established
custodial environment. See Lieberman, 319 Mich App at 90, citing Rains v Rains, 301 Mich
App 313, 321; 836 NW2d 709 (2013).


                                                -3-
parenting time, regardless of defendant’s label for his motion, would alter the children’s
established custodial environment with plaintiff.3 Compare Lieberman, 319 Mich App at 89-90,
with Shade, 291 Mich App at 27 n 3. Consequently, the trial court did not commit clear legal
error by determining that the Vodvarka framework applies.

        Under the Vodvarka framework, defendant cannot show proper cause or a change in
circumstances that would allow the trial court to revisit custody, and thus the trial court did not
abuse its discretion by denying defendant’s motion. See Corporan v Henton, 282 Mich App 599,
603-604 & n 2; 766 NW2d 903 (2009). By defendant’s own admission, he alleges nothing but
normal life changes which arguably might be relevant under Shade, but which certainly do not
provide grounds for revisiting custody under Vodvarka. See Lieberman, 319 Mich App at 83. In
these circumstances, there is also no merit to defendant’s argument that he was entitled to an
evidentiary hearing. That is, given that Vodvarka applies and that defendant has not alleged
proper cause or a change in circumstances, there was no need for an evidentiary hearing under
Vodvarka, 259 Mich App at 512, and the trial court was precluded from holding a custody
hearing to consider the children’s best interests, id. at 508-509; Corporan, 282 Mich App at 603-
604 & n 2. See also MCR 3.10(C)(8). Accordingly, the trial court did not err by denying
defendant’s motion without holding an evidentiary hearing.

       Affirmed. Having prevailed in full, plaintiff may tax costs pursuant to MCR 7.219.



                                                            /s/ Joel P. Hoekstra
                                                            /s/ William B. Murphy
                                                            /s/ Jane E. Markey




3
  On appeal, defendant argues that because the judgment of divorce does not expressly award
“physical custody” to either party it should be assumed that the parties received joint physical
custody. However, we need not decide this question because under a custody analysis or a
parenting-time analysis resulting in a change to plaintiff’s custodial environment, the Vodvaraka
framework applies. See Lieberman, 319 Mich App at 92.


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