JOHN J MCQUILLAN V CASSANDRA SANBACK
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN J. MCQUILLAN and DENISE M.
MCQUILLAN,
UNPUBLISHED
May 11, 2010
Plaintiffs-Appellees,
v
No. 289380
Tuscola Circuit Court
LC No. 08-024762-DZ
CASSANDRA SANBACK,
Defendant-Appellant.
Before: TALBOT, P.J., and FITZGERALD and M. J. KELLY, JJ.
PER CURIAM.
Defendant, the mother of plaintiffs’ two minor grandchildren, appeals as of right from a
judgment awarding plaintiffs grandparent visitation time with their grandchildren after the death
of their son, Joshua, the children’s father. We affirm.
Joshua Sanback died on April 10, 2007, as a result of injuries sustained in an automobile
accident. Plaintiffs filed a complaint against defendant, their daughter-in-law, in March 2008
seeking to establish grandparenting time with Joshua’s two children.
The parties entered into a stipulated settlement to address grandparenting time visitation
at a hearing on August 15, 2008. Plaintiffs’ counsel stated in open court the arrangement the
parties had reached, and defense counsel responded, “It is a fair and accurate full statement of the
agreement of the parties of the settlement.” Following plaintiffs’ September 10, 2008, motion
for entry of an order, and after a hearing on that motion, an order memorializing the agreement
was entered on October 13, 2008.
On October 30, 2008, defendant filed a motion for judgment notwithstanding the verdict
and for a new trial. Defendant alleged in the motion that she was under duress at the time she
reached the settlement agreement, that she did not understand what she was agreeing to, and that
it was not in the best interest of her children to provide the level of grandparenting time specified
in the agreement. Following a hearing on November 24, 2008, the trial court denied the motion
on the ground that defendant was bound by the agreement that was placed on the record and that
it could not change the grandparenting time order without a showing of a change of
circumstances.
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Defendant first argues that the court did not have the power to order grandparenting time,
and that she was denied due process under the Fourteenth Amendment, as incorporated by the
Fifth Amendment, because her liberty interest in the care and custody of her children has been
infringed. We disagree.
Generally, we review a visitation order de novo, but we will not reverse the order unless
the trial court made findings of fact against the great weight of the evidence, committed a
palpable abuse of discretion, or committed a clear legal error. See Deal v Deal, 197 Mich App
739, 741; 496 NW2d 403 (1993) (relating to a visitation order between parents). We also review
issues pertaining to the interpretation of court rules de novo. Haliw v Sterling Heights, 471 Mich
700, 704; 691 NW2d 753 (2005).
“A child’s grandparent may seek a grandparenting time order . . . [if] the child’s parent
who is a child of the grandparents is deceased.” MCL 722.27b(1)(c). Here, plaintiffs are the
grandparents of the two minor children. Because Joshua Sanback is deceased, plaintiffs are
entitled to seek a grandparenting time order in accordance with MCL 722.27b(1)(c).
Defendant’s challenge to the court’s authority to order grandparenting time is without
merit. If no circuit court has continuing jurisdiction over a child, the child’s grandparents may
seek a grandparenting time order in the circuit court for the county where the child resides. MCL
722.27b(3)(b). Once in the circuit court, the court has authority to either accept a stipulation
provided by the parties or to modify the agreement as it deems appropriate. Bowman v Coleman,
356 Mich 390, 392-393; 97 NW2d 118 (1959). Nevertheless, a trial court is permitted to accept
a stipulation regarding visitation and incorporate it into a judgment. Koron v Melendy, 207 Mich
App 188, 191; 523 NW2d 870 (1994). Here, the court allowed the parties to stipulate to a
grandparenting time plan that would ostensibly work for all parties. The court merely
recognized that the agreement was equitable and reasonable, and subsequently entered an order
reflecting the stipulated agreement.
Moreover, an agreement that is read in open court is binding on the parties under MCR
2.507(G).1 “Judgments entered pursuant to the agreement of the parties are of the nature of a
contract, rather than a judicial order entered against one party.” Massachusetts Indemnity & Life
Ins Co v Thomas, 206 Mich App 265, 268; 520 NW2d 708 (1994). Absent a showing of fraud or
duress, it is appropriate for a court to enforce the terms of the parties’ agreement. Id. “The
litigant who so asserts to a stipulation freely entered into in open court carries a heavy burden of
persuasion. Every presumption of judicial care, or professional competence, and of decretal
stability is against the overthrow, in the appellate court, of such stipulation and of orders and
1
MCR 2.507(G), formerly MCR 2.507(H) states:
An agreement or consent between the parties or their attorneys respecting the
proceedings in an action, subsequently denied by either party, is not binding
unless it was made in open court, or unless evidence of the agreement is in
writing, subscribed by the party against whom the agreement is offered or by that
party’s attorney. [MCR 2.507(G).]
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decrees based thereon.” Wagner v Myers, 355 Mich 62, 68; 93 NW2d 914 (1959). Defendant
has not demonstrated that she was suffering from duress or undue influence at the time the
stipulation was entered and, therefore, the trial court did not err in entering the order based on the
stipulation.
Defendant’s argument that her due process rights were violated is also without merit.
Defendant contends that because she is a fit parent, she has the right to grant visitation and the
court must accord some special weight to her determination about proposed visitation before
taking away her fundamental liberty interest in relation to her children. Here, the court not only
accorded some special weight to defendant’s decision, it fully complied with the agreement
entered into by the parties, and entered an order on October 13, 2008, that represented the full
agreement between the parties.
A party may not benefit from a claim of error resulting from conduct that the aggrieved
party contributed to by plan or negligence. Lewis v Legrow, 258 Mich App 175, 210; 670 NW2d
675 (2003). Thus, because the parties entered into the stipulated visitation agreement, and
defendant contributed to the stipulation by agreeing to it in open court, she is bound by the
stipulation and the order entered as a result of the stipulation.
Defendant next argues that the grandparents are seeking to control the amount of
visitation they have with their grandchildren, despite the fact that they have not proven that this
fit parent’s decision to lessen grandparenting time created a substantial risk of harm to the
children, as required under MCL 722.27(4)(b). However, the requirements of MCL
722.27b(4)(b) do not apply to this appeal. MCL 722.27b(4)(b) pertains to a grandparent’s
request for grandparenting time, and includes a rebuttable presumption that is triggered when a
fit parent denies grandparenting time. Here, plaintiffs’ request for grandparenting time occurred
when plaintiffs filed a complaint with the court on March 5, 2008. Presuming that defendant is a
fit parent, MCL 722.27b(4)(b) would provide her with a presumption that her denial of
grandparenting time did not create harm to the children. At that point, plaintiffs would have had
the burden to rebut this presumption. That is not what occurred here. At the August 15, 2008,
hearing, defendant did not deny grandparenting time. Instead, defendant agreed to visitation
time and entered a stipulated agreement on the record. Because defendant did not deny
grandparenting time, plaintiffs’ burden to overcome the presumption provided by MCL
722.27b(4)(b) was never triggered. Essentially, defendant waived this presumption by agreeing
to the grandparenting visitation time stipulation. Again, defendant may not benefit from a claim
of error resulting from her own conduct. See Lewis, 258 Mich App at 210.
Affirmed.
/s/ Michael J. Talbot
/s/ E. Thomas Fitzgerald
/s/ Michael J. Kelly
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