RONALD H RADFORD V JANICE ASHENHIRST
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD H. RADFORD,
UNPUBLISHED
July 27, 2010
Plaintiff-Appellee,
v
No. 290292
Wayne Circuit Court
Family Division
LC No. 07-704134-DC
JANICE ASHENHIRST,
Defendant-Appellant.
Before: MURPHY, C.J., and K. F. KELLY and STEPHENS, JJ.
PER CURIAM.
In this custody dispute, defendant, in pro per, appeals as of right the trial court’s January
2009 order denying her petition to change custody. We affirm.
I. BASIC FACTS
In 2004, the parties began a dating relationship. Plaintiff moved into defendant’s home in
late 2004 or early 2005. The relationship produced one child, born December 29, 2006. In late
January 2007, the parties ended their romantic relationship and defendant asked plaintiff to move
out of her home. The child remained in defendant’s physical custody.
In February 2007, plaintiff filed a complaint for joint legal and physical custody of the
child, asking the court to enter an order of temporary joint legal and physical custody and to
award him unsupervised parenting time. The Friend of the Court (FOC) referee recommended
that the parties share temporary joint physical and legal custody of the child, and that plaintiff be
entitled to parenting time on the second, third, and fourth weekends of every month, from Friday
evening until Monday morning. Defendant failed to appear at this hearing. The trial court
adopted the FOC recommendation as an interim order of the court on May 17, 2007. Several
days later, on May 25, 2007, defendant obtained a personal protection order (PPO) against
plaintiff in a different case. See Ashenhirst v Radford, unpublished order of Wayne County
Circuit Court, issued May 25, 2007 (Docket No. 07-714084-PP).
While the case was proceeding, defendant apparently failed to abide by the parenting
time schedule. Consequently, in June 2007, plaintiff filed a motion to show cause for
defendant’s denial of his parenting time. Defendant did not appear at the show cause hearing.
That same month, the FOC submitted a final recommendation. It recommended that the parties
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have joint legal custody and that defendant have physical custody of the child. It also
recommended that plaintiff pay defendant $369 per month in child support. The trial court did
not act upon the custody recommendation, and no order was entered requiring plaintiff to pay
support.
Subsequently, in August 2007, defendant filed a letter with the court asking it to dismiss
plaintiff’s complaint and motion. Defendant’s primary argument was that she was not properly
served with the complaint. She also asked the court to enforce the PPO order and to order
plaintiff to pay child support. A hearing was scheduled for October 2, 2007, during which the
court would undertake consideration of plaintiff’s complaint and consider defendant’s motion to
dismiss. Defendant, however, failed to appear for this hearing as well. Consequently, an order
was issued for defendant’s arrest.
Defendant was arrested on December 20, 2007, and the hearing was rescheduled for
December 21, 2007. At that hearing, the trial court dismissed defendant’s motion to dismiss and
awarded plaintiff temporary physical and legal custody of the child. Defendant was granted
supervised parenting time. The trial court further ordered that plaintiff’s “obligation to pay child
support is terminated and that the issue of child support shall be referred to the [FOC] for an
investigation and recommendation.” It stated that “all other terms and provisions of all
subsequent orders [sic] entered with this court which are not inconsistent with this order shall
remain in full force and effect.” At this point, the child was to be turned over to plaintiff, but
defendant’s mother fled the courtroom with the child. The child was eventually located on
January 3, 2008, at the maternal grandparents’ home, and plaintiff was given custody of the child
pursuant to the terms of the custody order.
Defendant moved for reconsideration of the December 21st order. Plaintiff countered
that defendant’s parenting time should be supervised because defendant was a flight risk, as
demonstrated by the events at the December 21st hearing, and because defendant was
psychologically unstable. On April 24, 2008, the trial court issued an order denying defendant’s
motion “to set aside the Order awarding custody to Plaintiff.” It reasoned that an established
custodial environment existed with plaintiff and that defendant had failed to demonstrate a
change of circumstances. The trial court again did not address the issue of child support.
On July 24, 2008, the trial court entered an “interim” order requiring defendant to pay
$220 per month in child support. Defendant filed objections to the order on August 13, 2008. It
is unclear from the record how the court ruled, or whether it even considered, defendant’s
objections. Defendant never appealed the order of custody or the award of child support.
Subsequently, in November 2008, defendant filed a motion to change custody asking the
court to grant her “sole custody” of the child. In January 2009, the trial court denied the motion
reasoning that defendant had failed to show a proper cause or change in circumstances that
would justify a change in the child’s custody. Defendant appeals as of right from the January
2009 order.
II. JURISDICTION
At the outset, we note that the majority of defendant’s arguments on appeal relate to the
trial court’s initial December 21, 2007 custody determination. For example, defendant argues
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that numerous alleged procedural defects deprived the trial court of jurisdiction or otherwise
prejudiced her, including plaintiff’s failure to properly serve defendant with the summons and
complaint, plaintiff’s failure to sign the original complaint and provide defendant’s correct name,
and the court’s alleged failure to recognize her special appearance. In addition, defendant argues
that the trial court failed to consider the best interests factors before it entered its temporary
change of custody order in December 2007 and that the trial court erred by failing to enter an
order requiring plaintiff to pay child support for the period of time that defendant had physical
custody of the child. Defendant further asserts that the December 2007 order is defective and
should be reversed because the presiding judge had no knowledge of the case, because plaintiff
and plaintiff’s attorney committed perjury, because the trial court did not protect her due process
rights, and because her objections were never heard.
Although we are sympathetic to defendant’s position, we do not have jurisdiction to
consider the substance of her arguments. All of these claims of error relate to the trial court’s
previous final order, which defendant never appealed. A “final order” is “the first judgment or
order that disposes of all the claims and adjudicates the rights and liabilities of all the parties . . .
.” MCR 7.202(6)(a)(i). Thus, when the resolution of a claim found in either the complaint or the
counter-claim is postponed to a later date, the judgment is rendered non-final. Helms v Helms,
185 Mich App 680, 685; 462 NW2d 812 (1990). Further, “in a domestic relations action, [a final
order is also] a postjudgment order affecting the custody of a minor.” MCR 7.202(6)(a)(iii).
Generally, a party must file a claim of appeal within 21 days from the entry of a final order.
MCR 7.204(A). This Court may consider an untimely appeal if it decides to grant leave to
appeal. MCR 7.205(F)(1). “[This] discretion [,however,] is limited: this Court may not grant
leave to appeal if the untimely appeal ‘is filed more than 12 months’ after the entry of ‘a final
judgment or other order that could have been the subject of an appeal of right . . . .’” Chen v
Wayne State Univ, 284 Mich App 172, 193; 771 NW2d 820 (2009), citing MCR 7.205(F)(3)(a).
Defendant has not complied with these rules in the instant case. After the court entered
its temporary custody order in December 2007, defendant moved for reconsideration. The trial
court denied defendant’s motion on April 24, 2008, reasoning that an established custodial
environment existed with plaintiff and that defendant had failed to demonstrate a change of
circumstances. Although the April 24th order would appear to be the first final order in this
case, it was not because the trial court had declined to rule on the issue of child support. See
Helms, 185 Mich App at 685. The trial court later entered an “interim” order on July 24, 2008,
requiring defendant to pay child support. Although this July 24th order was labeled an interim
order, it nonetheless constituted a final order because it disposed of all the parties’ claims related
to plaintiff’s complaint and adjudicated their rights and liabilities. MCR 7.202(6)(a)(i); see also
Thurston v Escamilla, 469 Mich 1009; 677 NW2d 28 (2004) (holding that the actual result of the
order, not the terminology of the order or the underlying motion, controls a finality analysis).
Significantly, defendant never appealed the July 24th order, but instead filed a motion to change
custody. This motion was denied and the trial court entered a subsequent final order in January
2009, which is the order from which defendant now appeals. In the context of child custody
disputes, “[w]hen a final order is entered, a claim of appeal from that order must be timely filed.
A party cannot wait until the entry of a subsequent final order to untimely appeal an earlier final
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order.” Surman v Surman, 277 Mich App 287, 294; 745 NW2d 802 (2007). Defendant’s failure
to timely appeal issues related to the July 2008 final order deprives this Court of jurisdiction to
consider those arguments.1
Defendant raises an additional and related argument that the trial court erred by not
reprimanding plaintiff for failing to comply with the PPO and for otherwise failing to enforce it.
However, the PPO was entered against plaintiff in an entirely different case and it is not the order
appealed from. See In re Contempt of Johnson, 165 Mich App 422, 427; 419 NW2d 419 (1988).
Moreover, appeals involving PPO-related orders must comply with MCR 3.709 and application
of this court rule to the present matter requires rejection of defendant’s arguments. Accordingly,
this Court also does not have jurisdiction to consider this order.
Finally, defendant argues that the trial court erred in not retroactively enforcing plaintiff’s
obligation to pay her child support during the time that the minor child was in her custody.
Again, this Court does not have jurisdiction to consider this issue. In addition, child support was
never ordered while the child was in defendant’s custody. Although the FOC recommended
child support be paid to defendant, the trial court never addressed either the amount of support or
its retroactivity.2
III. MOTION FOR CHANGE OF CUSTODY
With regard to the January 2009 order appealed, defendant only argues that the trial court
erred by not taking into consideration “anything [she] had to say” and by continuing to require
that her parenting time be supervised despite the fact that she had done nothing to be found unfit.
Defendant’s claims of error are without merit. At the outset, we note that defendant moved to
change custody, not to modify the parenting time schedule. Thus, her argument as it relates to
parenting time is irrelevant as it was not decided by the trial court and is not now properly before
this Court. See People v Herrick, 277 Mich App 255, 259; 744 NW2d 370 (2007).
With regard to her motion to change custody, defendant generally asserts that the trial
court erred by denying her motion to change custody, but her argument is better characterized as
a denial of her procedural due process rights. We review claims of constitutional error de novo.
Hanlon v Civil Service Comm’n, 253 Mich App 710, 717; 660 NW2d 74 (2002). In the civil
context, procedural due process generally requires notice, the opportunity to be heard in a
meaningful way, and an impartial decision maker. Id. at 723. The opportunity to be heard
guaranteed by due process does not mean a full trial-like proceeding, but it does require a
hearing to allow a party the chance to know and respond to the evidence. Id.
1
We also note that by the time defendant filed her claim of appeal with this Court in the instant
matter, the time period in which this Court could have granted leave for an untimely appeal of
the July 2008 order had expired. See Chen, 284 Mich App at 193; MCR 7.205(F)(3)(a).
2
An issue must first be raised and addressed by the trial court before it may be properly
considered on appeal. Polkton Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).
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Our review of the January 7, 2009 hearing transcript shows that defendant’s contention is
without support in the record. At the hearing, the trial court entertained defendant’s arguments
and factual assertions, but determined that they were unavailing because defendant had failed to
demonstrate a change of circumstances that would warrant a custody change. See Vodvarka v
Grasmeyer, 259 Mich App 499, 513; 675 NW2d 847 (2003). When asked what had changed,
defendant stated that she lived in a new home and that plaintiff’s mother was taking care of the
child while plaintiff was at work. In response, the trial court stated, “Who’s taking care of the
child is not a change of circumstances.” As such, defendant failed to proffer any evidence or
testimony at the hearing that would have convinced the trial court otherwise even though,
contrary to her allegation, she was offered the opportunity to be heard. Thus, her contention that
the court did not consider her arguments fails.3
Affirmed.
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
3
Defendant also raised allegations of child abuse at the hearing. When the trial court asked
whether Child Protective Services (CPS) had investigated and whether CPS had issued a report,
defendant stated that they had investigated but had not issued a report or otherwise taken any
action. Defendant raises similar allegations on appeal but does not explain the relevancy of her
unconfirmed suspicions. A party cannot leave it up to this Court to discover and rationalize the
basis for his or her position on appeal. McIntosh v McIntosh, 282 Mich App 471, 484-485; 768
NW2d 325 (2009).
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