             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



TIFFANY NICOLE TOOSON,                                                UNPUBLISHED
                                                                      June 27, 2019
               Plaintiff-Appellee,

v                                                                     No. 346868
                                                                      Washtenaw Circuit Court
CHARLIE BRODERICK FLOWERS,                                            LC No. 13-000005-DP

               Defendant-Appellant.


Before: TUKEL, P.J., and SERVITTO and RIORDAN, JJ.

PER CURIAM.

        Defendant, Charlie Broderick Flowers, appeals as of right the trial court’s order granting
plaintiff’s, Tiffany Nicole Tooson, motion for specific parenting time regarding the parties’
minor child. We vacate the trial court’s opinion and remand.

         In 2013, the trial court found that defendant was the child’s legal father, granted plaintiff
sole physical custody, and granted the parties joint legal custody. At some point after that,
defendant moved to Arizona, while plaintiff and the child remained in Michigan. In September
2017, the parties appear to have agreed that the child would move to Arizona, live with
defendant, and attend school in Arizona for the 2017-2018 academic year. The parties also
apparently agreed that the child would return to Michigan at the end of the school year, but
defendant failed to return the child to Michigan at that time. Plaintiff moved for a specific
parenting-time schedule and for the child’s immediate return to Michigan. After a brief hearing,
the trial court granted plaintiff’s motion. Defendant now appeals.

        Defendant and plaintiff each raise jurisdictional challenges, but neither have merit.
Defendant argues that the trial court did not have jurisdiction over the child because the child had
lived in Arizona with him for a time. The parties and the child lived in Michigan when the trial
court made the initial child-custody determination in 2013, and therefore, the trial court had
exclusive, continuing jurisdiction pursuant to MCL 722.1201(1)(a).

       Plaintiff alleges that we do not have jurisdiction over defendant’s appeal based on an
amendment to MCR 7.202(6)(a)(iii). Defendant timely filed his appeal on December 13, 2018,
pursuant to the court rule’s language at that time which allowed appeals as of right from any


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orders affecting the custody of a minor. The amended court rule took effect on January 1, 2019,
and allows appeals as of right only from orders that “change legal custody, physical custody, or
domicile.” Generally, newly adopted court rules apply to pending actions unless the application
of the new rule would work injustice. Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich App
332, 337; 602 NW2d 596 (1999). An amended court rule would “work injustice” when a party
acts in reliance on the prior rules, and those actions have consequences under the new rule that
were not present under the old rule. Sullivan Indus, Inc v Double Seal Glass Co, Inc, 192 Mich
App 333, 355; 480 NW2d 623 (1991). Under these circumstances, a court should apply the
former version of MCR 7.202(6)(a)(iii) to prevent injustice. Id.

       Turning to the merits of the case: defendant argues generally that the trial court erred
when it decided plaintiff’s motion for parenting time. We agree.

        In child-custody disputes, “all orders and judgments of the circuit court shall be affirmed
on appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28.
“This Court reviews discretionary rulings, including a trial court’s custody and parenting-time
decisions, for an abuse of discretion.” Mitchell v Mitchell, 296 Mich App 513, 522; 823 NW2d
153 (2012). “An abuse of discretion with regard to a custody issue 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.’ ” Id., citing Berger v Berger,
277 Mich App 700, 705; 747 NW2d 336 (2008). Additionally, a trial court commits “clear legal
error” when it chooses, interprets, or applies the law incorrectly, and must remand to the trial
court unless the error was harmless. Fletcher v Fletcher, 447 Mich 871, 881; 526 NW2d 889
(1994).

        “Parenting time shall be granted in specific terms if requested by either party at any
time.” MCL 722.27a(8). The trial court must grant parenting time “in accordance with the best
interests of the child.” MCL 722.27a(1). Custody decisions require findings under all of the
best-interest factors contained in both MCL 722.23 and MCL 722.27a(7), but parenting-time
decisions may be made with findings on only the contested factors. Shade v Wright, 291 Mich
App 17, 31-32; 805 NW2d 1 (2010). The moving parent’s burden of proof on these best-interest
factors depends on whether the proposed change would modify the child’s established custodial
environment. “The 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.” MCL 722.27(1)(c). Established custodial
environments may exist with both parents at the same time. Berger, 277 Mich App at 707. If a
parenting-time order would change the established custodial environment of the child, the
moving party must show by clear and convincing evidence that the requested change would be in
the child’s best interests. MCL 722.27(1)(c); Pierron v Pierron, 486 Mich 81, 92; 782 NW2d
480 (2010). If the requested change would not change the established custodial environment, the
burden is on the proposing parent to show by a preponderance of the evidence that the requested
change would be in the child’s best interests. Id. at 93.

       Therefore, the trial court must first determine whether an established custodial
environment exists, which is a question of fact. Foskett v Foskett, 247 Mich App 1, 8; 634
NW2d 636 (2001). If “a trial court fails to make a finding regarding the existence of a custodial

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environment, this Court will remand for a finding unless there is sufficient information in the
record for this Court to make its own determination of this issue by de novo review.” Thames v
Thames, 191 Mich App 299, 304; 477 NW2d 496 (1991).

        Additionally, while parties are encouraged to work together and may agree on a
parenting-time schedule, they cannot agree to a parenting-time schedule that amounts to a change
of custody without the trial court conducting a best-interest determination and entering an order.
Phillips v Jordan, 241 Mich App 17, 22; 614 NW2d 183 (2000). An agreement between the
parties without involvement by the trial court is not binding because it cannot “ ‘supersede
procedures and conditions set forth in statutes or court rules’ ” including the child-custody act.
Id., quoting In re Ford Estate, 206 Mich App 705, 708; 522 NW2d 729 (1994).

         In this case, the trial court granted sole physical custody to plaintiff in 2013, with
visitation rights and parenting time for defendant. The parties modified that parenting-time
agreement in September 2017 when they agreed that the child should be educated in Arizona.
That arrangement was not placed on the record at any time and did not involve the trial court at
all. Further, defendant failed to petition the trial court for approval, as mandated by the Order of
Filiation, when he moved the child to Arizona. Therefore, that agreement is not binding on the
parties. See Phillips, 241 Mich App at 22; In re Ford Estate, 206 Mich App at 708. The Order
of Filiation remains binding on the parties: plaintiff has been awarded primary physical custody
and the parties share legal custody, and the parties shall agree on parenting time that comports
with that order. When the parties realized that they could not agree, a Stipulation and Order was
filed, which required a determination about parenting time to be made “through further legal
proceedings.”

        The trial court did not err by hearing plaintiff’s motion for specific parenting time. See
MCL 722.27a(8). However, while deciding plaintiff’s motion, the trial court did not make a
determination regarding whether or not an established custodial environment existed, and
accordingly, it did not make a determination whether plaintiff’s motion would modify an
established custodial environment. No evidence was presented to the trial court regarding
whether an established custodial environment existed or regarding the child’s best interests. As a
result, there is no record evidence to support the finding that residing with either plaintiff or
defendant would be in the child’s best interests. The record is bare, containing primarily
unsubstantiated allegations of poor parenting between the parties. The trial court did not apply
any legal framework, let alone the correct legal framework, to make a parenting-time
determination, nor did it rely on record evidence. Because the trial court’s decision is not based
on evidence or supported by law, we remand the case for the trial court to develop the record and
apply the law correctly.

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

                                                             /s/ Jonathan Tukel
                                                             /s/ Deborah A. Servitto
                                                             /s/ Michael J. Riordan



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