BRENT M JEX V MICHELLE M JEX
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STATE OF MICHIGAN
COURT OF APPEALS
BRENT M. JEX,
UNPUBLISHED
March 18, 2008
Plaintiff-Appellant,
v
No. 279964
St. Clair Circuit Court
Family Division
LC No. 02-002153-DM
MICHELLE M. JEX,
Defendant-Appellee.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
PER CURIAM.
In this child custody dispute, plaintiff appeals by right the trial court’s order granting
defendant’s request that she be granted sole physical custody of the parties’ two minor children.
Plaintiff argues that there was no change in circumstances either to allow referral to the Friend of
the Court or to grant the ultimate custody change. We affirm.
Our review of the record indicates that at the initial hearing on defendant’s motion for
change of custody, the trial court stated that it intended to refer the matter to the Friend of the
Court and that plaintiff’s counsel responded that “there’s no opposition here today.” Because
plaintiff through his counsel agreed to the referral to the Friend of the Court, he may not argue
now on appeal that the referral was error. See Chapdelaine v Sochocki, 247 Mich App 167, 177;
635 NW2d 339 (2001) (“A party cannot stipulate a matter and then argue on appeal that the
resultant action was error.”). In any event, we find no error in the trial court’s referral because
there is no statutory requirement that a court find a change in circumstance or proper cause
before referring a matter to the Friend of the Court for an investigation. See MCL 552.505(1)(g).
Rather, such a finding is required prior to the Court considering the best interest factors when
deciding whether to amend it’s prior custody judgment or order. MCL 722.27(c); Vodvarka v
Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).
As for plaintiff’s second claim of error, we need not decide whether the trial court clearly
erred in using the December 2, 2004 order, rather than the April 13, 2006 order, to determine a
change in circumstances. Although the law is clear that the change in circumstances must have
occurred “since the entry of the last custody order,” Vodvarka, supra at 513, plaintiff has not
challenged the trial court’s finding of proper cause. Caldwell v Chapman, 240 Mich App 124,
132; 610 NW2d 264 (2000). The plain language of MCL 722.27(1)(c) provides that the trial
court needs to find a change of circumstances or proper cause, meaning either is sufficient. See
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also Vodvarka, supra at 508-509. Because plaintiff does not challenge the trial court’s opinion
that relied on a finding of proper cause (which is not necessarily related to evidence since the last
custody order), there is no need for this Court to consider granting plaintiff the relief he seeks.
Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d 145 (2004).
Affirmed.
/s/ Christopher M. Murray
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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