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No. 138824
| Timothy Pierron, |
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Scott G. Bassett |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Wayne - Popke, L.) |
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| Kelly Pierron, |
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Beverly M. Safford |
Defendant-Appellee. |
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| __________________________________________ |
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Plaintiff-Appellant's Brief on Appeal>>
Plaintiff-Appellant's Reply Brief>>
Defendant-Appellee's Brief on Appeal>>
Family Law Section (Majority of) of the State Bar of Michigan's Amicus Curiae Brief>>
Background
Timothy and Kelly Pierron were married in October 1993 and divorced in April 2000. The divorce judgment granted both parties joint legal custody of their two children, but granted the mother physical custody, with reasonable and liberal parenting time awarded to the father. The judgment of divorce provided that “each parent shall have equal decision-making authority with respect to matters concerning the children’s education,” and that “[b]oth parents shall be fully informed with respect to the children’s progress in school and shall be entitled to participate in all school conferences, programs and other related activities.” An amended judgment of divorce, entered in June 2001, provided the parties with joint legal custody and shared parenting time. The mother’s residence continued to be the children’s primary residence, but each party’s residence was identified as the children’s legal residence. At this time, both parents lived in Grosse Pointe Woods and the children attended the Grosse Pointe Public Schools. In 2007, the mother moved to Howell, and attempted to change the children’s school district to Howell. Pursuant to MCL 722.31(1), a custodial parent may move the children’s legal residence within 100 miles without the court’s permission or the noncustodial parent’s consent. But the custodial parent is not authorized to make a unilateral decision affecting the children’s welfare, such a change in the children’s school district. Where the parents disagree about a proposed change in the children’s schools, courts look to the “best interests of the child” test of MCL 722.23.
After a six-day evidentiary hearing, the trial court found that the attempted change in the children’s school district disrupted the children’s custodial environment with their father. Applying a “clear and convincing evidence” standard, the court determined that the mother had not satisfied her burden of proving that the children should be enrolled in a different school district. The trial court added that the mother had not satisfied her burden of proof under even the less-stringent “preponderance of the evidence” standard. But the Court of Appeals reversed in a published opinion, holding that the trial court erred by finding that the proposed school change would alter the children’s established custodial environment. The Court of Appeals held that the “preponderance of evidence” standard applied and said that the mother “likely” satisfied her burden of proof on the change-of-schools issue. The trial court erred in its review of several of the “best interests” factors and made several findings of fact that were against the great weight of the evidence, the appellate court stated. Accordingly, the Court of Appeals vacated the trial court’s order and remanded the case for reevaluation of the schools issue based on up-to-date information. The father appeals.
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