Where an appeal has been filed regarding custody and parenting time, another remand is necessary because of errors by the lower court.
“These consolidated appeals are before this Court for the second time involving the same underlying custody and parenting-time dispute. In the previous appeal, this Court vacated orders awarding plaintiff full legal custody of the children and a favorable parenting-time schedule and remanded for further proceedings. Sattler v Tarjeft, unpublished per curiam opinion of the Court of Appeals, issued April 21, 2022 (Docket Nos. 358163 & 358164) (‘ Sattler I ’). Following a new evidentiary hearing on remand, the trial court determined that it could not hold a full custody hearing because plaintiff failed to establish proper cause or a change in circumstances to consider modifying custody with respect to the parties’ oldest child, KT. In substantively identical orders entered in each case, the trial court (1) denied plaintiff’s motion to modify custody, parenting time, and child support for KT; (2) ordered that the parties would share joint legal and physical custody of KT in accordance with a consent order entered in 2015; (3) awarded joint legal and physical custody of the parties youngest child, CT; (4) established a parenting-time schedule for both children; (5) ordered that the children would attend Gibraltar schools; and (6) awarded defendant attorney fees and costs. Plaintiff appeals these orders as of right. We affirm in part, vacate in part, and remand for further proceedings.
“In the interest of avoiding further unnecessary delay in establishing an initial custody order for CT, we will clarify the procedure on remand. The trial court must first consider whether and with whom CT currently has an established custodial environment. ... This issue will necessarily require the trial court to consider up-to-date information, as the pertinent facts may have changed since evidence was presented on that issue in 2021. ... Once the trial court determines CT’s established custodial environment, it must determine whether plaintiff’s proposed custodial arrangement and parenting time would alter that environment.
“Plaintiff next argues that the trial court erred by failing to hold a Lombardo hearing or properly evaluate which school district would serve the children’s best interests. We agree.
“Lastly, plaintiff argues that the trial court abused its discretion by awarding defendant attorney fees and costs. We agree.
“We affirm the portion of the trial court’s order denying plaintiff’s motion to modify KT’s custody and parenting time, but vacate the portions of the orders that (1) established CT’s custody and parenting time, (2) ordered the children to attend Gibraltar schools, and (3) awarded defendant attorney fees and costs. We again remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Neither party having prevailed in full, no costs are awarded. MCR 7.219(A).”
Sattler v. Tarjeft; MiLW 08-107990, 18 pages; Michigan Court of Appeals unpublished per curiam; Gadola, J., K. F. Kelly, J., Murray, J.; on appeal from Wayne Circuit Court; William Savage for appellant; Julia A. Perkins for appellee.
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