ANTHONY L HOSKINS V RONETTA N HOSKINS (Per Curiam Opinion)

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STATE OF MICHIGAN COURT OF APPEALS ANTHONY L. HOSKINS, UNPUBLISHED March 16, 2017 Plaintiff-Appellee, v No. 334637 Oakland Circuit Court Family Division LC No. 2010-776355-DM RONETTA N. HOSKINS, Defendant-Appellant. Before: HOEKSTRA, P.J., and JANSEN and SAAD, JJ. PER CURIAM. In this domestic relations action, defendant appeals as of right the trial court’s order that (1) granted plaintiff’s motion to increase his parenting time, (2) changed the school that their two minor children attended, and (3) referred his motion to reduce child support to the friend of the court. Previously, plaintiff moved this Court to dismiss defendant’s appeal for lack of jurisdiction, which we denied without prejudice in order to more fully address this issue here.1 We hold that we have jurisdiction over the portion of the order that altered parenting time, but we do not have jurisdiction over the other portions of the trial court’s order. Accordingly, we dismiss the issues not related to parenting time. And for the reasons provide below, we reverse the portion of the order that granted the increase in plaintiff’s parenting time. Plaintiff and defendant were married in 2007 and had two children during the course of their marriage. The judgment of divorce provided that defendant would have sole physical custody of the children, the parties would share legal custody, plaintiff would be entitled to 48 overnight visits of parenting time and would be responsible for $4,584 per month in child support. Plaintiff appealed that decision by the trial court, but this Court affirmed on all issues. Hoskins v Hoskins, unpublished opinion per curiam of the Court of Appeals, issued May 28, 2013 (Docket No. 309237). 1 Hoskins v Hoskins, unpublished order of the Court of Appeals, entered January 11, 2017 (Docket No. 334637). -1- After two failed attempts by defendant to obtain an order to allow her and the children to move to Texas, plaintiff moved for additional parenting time in December 2015. Defendant opposed the motion and argued that it would not be in the best interests of the children to increase plaintiff’s parenting time when he had previously failed to exercise his allotted 48 overnight visits. Plaintiff asserted that consistent with his testimony from a July 2015 hearing, he had taken a new position with his employer since the judgment of divorce was entered, which required less travel and allowed him to exercise more parenting time. The trial court granted plaintiff’s motion and allowed for plaintiff to have shared holidays, time over the summer, and alternating weekends with the children. The order increased plaintiff’s overnight visits from 48 to approximately 80. Approximately seven months later, in July 2016, plaintiff again moved for a further increase of parenting time. Plaintiff also moved to order the minor children to be enrolled in public school rather than private school (where defendant had enrolled them) and to reconsider the issue of child support in light of plaintiff’s additional parenting time, his reduced income, and an increased imputation of income to defendant. Defendant urged the trial court to deny the motion and argued that plaintiff suffered from alcohol abuse, had previously been arrested for drunk driving, and had a history of missing his parenting-time sessions. Those combined issues, defendant argued, showed that an increase in plaintiff’s parenting time would not be in the best interests of the children. Furthermore, defendant also asserted that plaintiff failed to establish a change in circumstances to warrant a change in parenting time, as she claimed to have a sworn statement from plaintiff’s employer that showed that there was not any change in plaintiff’s employment position. Defendant also argued that plaintiff’s motion to change schools was untimely and without merit, as plaintiff had previously approved of the school in which the children were enrolled. The trial court heard oral argument on the issue and, in an order entered on August 17, 2016, granted plaintiff’s motion to increase his parenting time (amounting to 125 overnights per year). The trial court also ordered that the children be immediately enrolled in public school pending an evidentiary hearing to be held in January 2017 and that the issue of child support was to be referred to the friend of the court for recalculation. I. JURISDICTION Plaintiff argues that this Court does not have jurisdiction to hear the appeal because the order appealed was not appealable of right pursuant to the court rules. “Whether this Court has jurisdiction to hear an appeal is an issue that we review de novo.” Wardell v Hincka, 297 Mich App 127, 131; 822 NW2d 278 (2012). Similarly, the interpretation of a court rule is a question of law that we review de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). This Court recently discussed the proper method for the interpretation of a court rule in Varran v Granneman (On Remand), 312 Mich App 591, 599; 880 NW2d 242 (2015) (citations omitted): The rules of statutory interpretation apply to the interpretation of court rules. The goal of court rule interpretation is to give effect to the intent of the drafter, the Michigan Supreme Court. The Court must give language that is clear and unambiguous its plain meaning and enforce it as written. Each word, unless defined, is to be given its plain and ordinary meaning, and the Court may consult a dictionary to determine that meaning. -2- Under MCR 7.203(A)(1), this Court “has jurisdiction of an appeal of right filed by an aggrieved party from . . . [a] final judgment or final order of the circuit court[.]” MCR 7.202(6)(a) defines “final judgment” or “final order” in a civil case to include: (i) the first judgment or order that disposes of all the claims and adjudicates the rights and liabilities of all the parties . . . , * * * (iii) in a domestic relations action, a post-judgment order affecting the custody of a minor . . . . Here, there is no question that MCR 7.202(6)(a)(i) does not apply, as the order did not dispose of all the claims in the action because those claims were resolved in the prior judgment of divorce. Hence, the question is whether this “post-judgment order affect[ed] the custody of a minor” under MCR 7.202(6)(a)(iii) (emphasis added). “In examining this issue, we consider the nature and scope of the order being appealed, and decide what the order is, at its essence, and what it is not.” Madson v Jaso, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 331605); slip op, p 4, app held in abeyance. This Court has held that, in order to invoke jurisdiction pursuant to MCR 7.202(6)(a)(iii), “an order need not expressly indicate that it is a custody determination.” Id.; slip op at 4. Stated differently, simply because an order does not specifically state that it is a “custody” order, it does not mean that it is not an “order affecting the custody of a minor” pursuant to the court rule. See Thurston v Escamilla, 469 Mich 1009 (2004). This Court has recently expressed concern regarding attempts to construe the phrase “affecting the custody of a minor” found in MCR 7.202(6)(a)(iii), noting that there was “ambiguity in the language of the court rule.” Madson, ___ Mich App at ___; slip op at 5. In light of this uncertainty, this Court has previously consulted dictionary definitions to construe the aforementioned phrase. In Wardell, 297 Mich App at 132, this Court considered the definition of “affect” in Black’s Law Dictionary (9th ed), noting that it was defined as “[m]ost generally, to produce an effect on; to influence in some way.” In considering that definition of the term “affect,” this Court held that “MCR 7.202(6)(a)(iii) carves out as a final order among postjudgment orders in domestic relations actions those that affect the custody of a minor, not those that ‘change’ the custody of a minor.” Wardell, 297 Mich App at 132. As a result, “a ‘postjudgment order affecting the custody of a minor’ is an order that produces an effect on or influences in some way the legal custody or physical custody of a minor.” Varran, 312 Mich App at 604; see also Madson, ___ Mich App at ___; slip op at 5 (stating that an order affecting physical custody “includes one where the trial court’s ruling has an effect on where the child will live”).2 2 We are cognizant that this Court recently made a contrary statement—that the court rule’s reference to “custody” should be read to only relate to physical custody. Ozimek v Rodgers (On -3- Because our jurisdiction pursuant to MCR 7.203(A)(1) “is limited to the portion of the order with respect to which there is an appeal of right,” we need to analyze each portion of the trial court’s order to determine which portions, if any, we have jurisdiction to hear an appeal of right. A. PARENTING TIME The first portion of the order to consider is the part that increased plaintiff’s parenting time. The record reveals that the judgment of divorce originally provided plaintiff with 48 overnight visits per year. The judgment did not indicate a schedule for when those visits should or could be exercised. In December 2015, plaintiff moved the trial court to increase his parenting time. The trial court granted that motion and provided plaintiff with an additional 32 overnight visits per year, bringing plaintiff’s overnight total to 80.3 Merely seven months after being granted that additional time, plaintiff again moved the trial court for increased parenting time. The trial court granted plaintiff additional parenting time, which amounted to 125 overnight sessions per year. We hold that the trial court’s order affected the physical custody of the children. In a span of seven months, the minor children went from spending 13% of the year with plaintiff, to spending 22% of the year with plaintiff, and finally spending 34% of the year with plaintiff. Stated differently, instead of living with defendant for almost all of the year, the minor children now live with plaintiff for more than one-third of the year. Although this difference might not be enough to render the increased parenting time as a change in custody or established custodial environment, that is not the test. Instead, the order must merely affect the custody of the child. And here, the order had a substantial “effect on where the child[ren] will live.” Madson, ___ Mich App at ___; slip op at 5. Accordingly, this Court has jurisdiction to consider as part of an appeal as of right the portion of the order increasing plaintiff’s parenting time. MCR 7.203(A)(1); MCR 7.202(6)(a)(iii). B. SCHOOL PLACEMENT The second part of the order that we must consider provided that the children would attend a public school rather than private school. The record reveals that the minor children originally attended a private, Christian school near defendant’s home. However, plaintiff moved the trial court to order the children to be enrolled in public school instead. After the trial court announced its decision that the children should be enrolled in a public school on a temporary basis, the parties agreed that the children would attend Meadowbrook Elementary. The parties agreed to that school because it was close to the private school the minor children were planning to attend and the school was within defendant’s school district. Remand), ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 331726); slip op, p 6, lv pending. However, Ozimek, like us, was bound by our prior decision in Varran. MCR 7.215(J)(1). Consequently, we do not believe we are bound by Ozimek’s determination. 3 There was no appeal of that order, and we offer no opinion on the appropriateness of the trial court’s action. -4- From these facts, it is plain that the change in school ordered by the trial court did not affect the physical custody of the children. The children did not have to move as a result of the change in schools and did not have to spend more or less time with any parent as a result of the change. Therefore, because physical custody was not affected, the question remains whether the court’s decision affected the legal custody of the children.4 We hold that it does not. “Legal custody” refers to the “ ‘decision-making authority as to important decisions affecting the child[ren]’s welfare.’ ” Varran, 312 Mich at 604, quoting Grange Ins Co of Mich v Lawrence, 494 Mich 475, 511; 835 NW2d 363 (2013). But the trial court’s decision on which school the child was to attend did not affect the legal custody of the child, i.e., the decisionmaking authority of any parent. Unlike the parent in Varran, who had sole legal custody over the child and was not allowed to make certain decisions regarding grandparenting time, id. at 605-606, both parents here retained their authority to make decisions. It is important to note that when two parents who have joint legal custody cannot come to an agreement on an important decision, it falls to the court to “resolve the stalemate” in the best interests of the child. Id. at 606; see also Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). Clearly, when a court resolves such a dispute or “stalemate” between two parents who hold joint legal custody of a child, it does not interfere with or override a parent’s legal right because neither parent has the authority to unilaterally make such decisions. Therefore, because the court’s order related to which school the children should attend did not affect physical nor legal custody, this portion of the order is not appealable by right. C. REFERRAL OF CHILD SUPPORT The third part of the trial court’s order—referral of the issue of child support to the friend of the court—is likewise not properly before this Court. The facts reveal that the trial court merely referred the issue of child support to the friend of the court for recalculation but did not change the amount of support. Thus, it is plain that the trial court’s order with respect to child support was not an “order affecting the custody of a minor” because it did not change anything with respect to the minors, did not affect where the children would live, and did not affect the decision-making authority of any parent. Thus, that portion of the order is likewise not properly before this Court as an appeal of right pursuant to MCR 7.203(A)(1) and MCR 7.202(6)(a)(iii). D. SUMMARY We hold that the portion of the order pertaining to the increase in plaintiff’s parenting time is a “final order” as it “affect[s] the custody of a minor,” MCR 7.202(6)(a)(iii), which means that this Court has jurisdiction to hear this portion of the appeal, as of right, under MCR 7.203(A)(1). However, the other portions of the order do not affect the custody of the children, which deprives us of jurisdiction to hear those issues. While we recognize that we have the inherent authority to consider all of the issues raised in defendant’s appeal “as on leave granted ‘in the interest of judicial economy,’ ” Rains v Rains, 301 Mich App 313, 320 n 2; 836 NW2d 4 We have already noted our disagreement with the binding nature of the Ozimek Court’s pronouncement that “custody” in MCR 7.202(6)(a)(iii) refers only to physical custody. -5- 709 (2013), quoting Detroit v Michigan, 262 Mich App 542, 545-546; 686 NW2d 514 (2004), we decline to do so because the need for immediate review is not apparent. First, the order that changed schools was merely temporary pending the outcome of an evidentiary hearing.5 Second, the order referring the issue of child support to the friend of the court did not change anything. We therefore dismiss these two parts of the appeal for lack of jurisdiction. II. REVIEW OF PARENTING-TIME ADJUSTMENT A. STANDARD OF REVIEW Like all issues involving child custody, “[o]rders concerning parenting time must be affirmed on appeal unless the trial court’s findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.” Pickering v Pickering, 268 Mich App 1, 5; 706 NW2d 835 (2005). “Under the great weight of the evidence standard, this Court should not substitute its judgment on questions of fact unless the facts clearly preponderate in the opposite direction.” Shade v Wright, 291 Mich App 17, 21; 805 NW2d 1 (2010). With regard to parenting-time decisions, this Court will find an abuse of discretion only where a “trial court’s decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias.” Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Meanwhile, “[c]lear legal error occurs when the trial court errs in its choice, interpretation, or application of the existing law.” Shade, 291 Mich App at 21 (quotation marks and citation omitted). B. GOVERNING LAW A child custody order may be modified only if the moving party first establishes proper cause or a change of circumstances. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003). Included in the term “child-custody determination” is a “parenting time” determination. MCL 722.1102(c); see also Shade, 291 Mich App at 22. The purpose of this limitation on the modification of child custody is to minimize unwarranted and disruptive changes of custody. Vodvarka, 259 Mich App at 509. “The framework for evaluating ‘proper cause’ or ‘change of circumstances’ when a party requests to modify a parenting-time order depends on whether an established custodial environment is affected and the type of modification requested.” 1 Kelly, Curtis & Roane, Michigan Family Law (7th ed) (ICLE, 2011), § 12.33, p 679. An established custodial environment exists where, “over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). 5 We note that any information pertaining to this January 2017 hearing is not part of the lower court record before us. In any event, any appeal would be more appropriate after this more “final” decision takes place. -6- If a change in parenting time results in a change in the established custodial environment, then the Vodvarka framework is appropriate.”6 Shade, 291 Mich App at 27. However, when a trial court’s modification of parenting time is not so significant that it results in a change in the minor child’s custodial environment, then a more expansive definition of “proper cause” or “change of circumstances” is utilized. Id. at 27-28. Specifically, “the very normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of consideration that trial courts should take into account in making determinations regarding modification of parenting time.” Id. at 30. Once a proper cause or change in circumstances is established, the focus of any new parenting-time order is “to foster a strong relationship between the child and the child’s parents.” Id. MCL 722.27a(1) provides that [p]arenting time shall be granted in accordance with the best interests of the child. It is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents. Except as otherwise provide in this section, parenting time shall be granted to a parent in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time. To ensure that parenting-time orders foster a strong parent-child relationship, in addition to the best-interest factors in the Child Custody Act, MCL 722.23, our Legislature has provided in MCL 722.27a(6) the following list of non-exhaustive factors that a court should consider when entering or modifying a parenting-time order: (a) The existence of any special circumstances or needs of the child. (b) Whether the child is a nursing child less than 6 months of age, or less than 1 year of age if the child receives substantial nutrition through nursing. (c) The reasonable likelihood of abuse or neglect of the child during parenting time. 6 Vodvarka provides that “[i]n order to establish a ‘change of circumstances.’ a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child’s well-being, have materially changed.” Vodvarka, 259 Mich App at 513. The Vodvarka Court stressed that not just any change will suffice, for over time there will always be some changes in a child’s environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. [Id. at 513-514.] -7- (d) The reasonable likelihood of abuse of a parent resulting from the exercise of parenting time. (e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time. (f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order. (g) Whether a parent has frequently failed to exercise reasonable parenting time. (h) The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent's temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent's intent to retain or conceal the child from the other parent. (i) Any other relevant factors. While custody decisions require findings under all of the best-interest factors, parenting-time decisions can be made with findings that are related only to the contested issues. Shade, 291 Mich App at 31-32. C. ESTABLISHED CUSTODIAL ENVIRONMENT Defendant argues that the trial court wrongly decided that the parenting-time order did not change an established custodial environment. We disagree. “While an important decision affecting the welfare of the child may well require adjustments in the parenting-time schedules, this does not necessarily mean that the established custodial environment will have been modified.” Pierron, 486 Mich at 86. “If the required parenting time adjustments will not change whom the child naturally looks to for guidance, discipline, the necessities of life, and parental comfort, then the established custodial environment will not have changed.” Id. In previous decisions by this Court considering this issue, the primary concern appears to be how much time each parent had with the children before and after the parenting-time order was entered. In Brown v Loveman, 260 Mich App 576, 597-598; 680 NW2d 432 (2004), this Court held that a parenting-time order that changed the time each parent spent with the minor child from six months each to nine months for one parent and three months for the other amounted to a change in an established custodial environment. Comparatively, in Shade, 291 Mich App at 27 n 3, the parenting-time modification in question merely rearranged the parenting-time days that were already awarded, without adding or subtracting an appreciable amount from either party. The Shade Court held that such a limited change in parenting time did not amount to a change of an established custodial environment. Id. The parenting-time modification here falls between those two cases, with plaintiff being provided approximately 45 additional parenting-time days (56% increase—125 days as opposed to 80) in the appealed order. With this latest increase, defendant maintained 66%, or two-thirds, of the overnight visits with the children. While the increase was relatively large compared to the -8- original order (greater than 50% increase for plaintiff), defendant maintained a clear majority of the parenting time. Further, there is no evidence on the record to suggest that the children might begin to look to plaintiff for a larger parental role. Therefore, we cannot say that the trial court’s finding that there was no change in the established custodial environment is against the great weight of evidence, and therefore, we will not disturb it. D. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES Defendant argues that, in connection with plaintiff’s latest (filed in July 2016) motion to modify parenting time, the trial court failed erred when it found that there was proper cause or a change of circumstances to warrant such a change. We agree. In his motion, plaintiff referenced how his job demotion at Ford Motor Company qualified as a proper change in circumstances for his prior motion to change parenting time, which was filed in December 2015.7 But in his July 2016 motion, plaintiff failed to allege any change in circumstances that occurred since that December 2015 order was entered. Instead, it is clear that he and the trial court merely relied upon his less-demanding job schedule that accompanied his demotion, which occurred before the December 2015 order was entered. While this type of change in employment normally would constitute a change of circumstances in the context of a parenting-time modification that did not alter the established custodial environment, see id. at 30, this was not a “change” from the circumstances that existed when the last parenting-time order was entered. As this Court has explained: Because a “change of circumstances” requires a “change,” the circumstances must be compared to some other set of circumstances. And since the movant is seeking to modify or amend the prior custody order, it is evidence that the circumstances must have changed since the custody order at issue was entered. Of course, evidence of the circumstances existing at the time of and before entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. As a result, the movant cannot rely on facts that existed before entry of the custody order to establish a “change” of circumstances. [Vodvarka, 259 Mich App at 514.] If plaintiff was dissatisfied with the outcome from the trial court’s December 2015 order and thought he should have received a higher amount of parenting time, his remedy was to appeal that order—not to file a subsequent motion a few months later based on the same change of circumstances that the trial court already considered when it ruled previously. Consequently, we hold that the trial court’s finding that there was a sufficient change of circumstances to warrant addressing plaintiff’s July 2016 motion to modify parenting time is 7 In that prior December 2015 motion, plaintiff noted how he testified in a July 2015 hearing that he took a job demotion, “which has eliminated the requirement of extensive travel” and made him more available for parenting time. -9- against the great weight of evidence. In fact, we note that there was no new evidence presented on this matter. Thus, the only information the court had were the parties’ allegations contained in plaintiff’s motion and defendant’s response, plus any information from the prior proceedings. But because the change in circumstances that plaintiff alleged occurred before the entry of the prior parenting-time order, the trial court necessarily erred when it relied on this change to support the instant motion. Further, we also note that there is nothing in the record to show how plaintiff’s circumstances have changed in the seven months since the December 2015 order was entered. Accordingly, because plaintiff bears the burden of proof and failed to meet his burden, the motion must fail. See id. at 509 (stating that the movant “has the burden of proving by a preponderance of the evidence that either proper cause or a change in circumstances exists”).8 Therefore, because the trial court erred when it found that there was a sufficient change of circumstances to justify a modification of parenting time, we reverse the portion of the order that increased plaintiff’s parenting time. III. CONCLUSION Because the portions of the trial court’s order pertaining to (1) the referral of the child support matter to the friend of the court and (2) the placement of the children in public school pending an evidentiary hearing did not affect the custody of any child, we do not have jurisdiction to hear an appeal on these matters. Accordingly, we dismiss these portions of the appeal. However, we do have jurisdiction to hear the appeal pertaining to the modification of parenting time. Because the trial court erred when it relied on a change of circumstances that did not occur after the entry of the last parenting-time order, the court did not have the authority to 8 Moreover, assuming plaintiff had alleged in his motion a sufficient change of circumstances— i.e., one that occurred sometime after the last parenting-time order was entered—the court’s failure to hold an evidentiary hearing on the matter was erroneous. While evidentiary hearings are not always required, they usually are needed in the event that the movant’s alleged facts underlying a change in circumstances are disputed. See Vodvarka, 259 Mich App at 512. And, here, defendant specifically disputed the notion that defendant had any change in job responsibilities, and she claimed to have a sworn statement from plaintiff’s employer that supported her position. Thus, if the alleged change in circumstances had occurred after December 2015, then an evidentiary hearing would be necessary to resolve the dispute on this key issue. -10- modify the parenting-time schedule. Consequently, we reverse the portion of the order that modified parenting time.9 /s/ Joel P. Hoekstra /s/ Kathleen Jansen /s/ Henry William Saad 9 Assuming plaintiff proved a valid change of circumstances, we would reverse for another reason. The trial court has an obligation to make findings related to any contested best-interest factors. Shade, 291 Mich App at 31-32. And, here, while opposing plaintiff’s motion for increased parenting time, defendant alleged, inter alia, that (1) plaintiff suffered from alcohol abuse and was often inebriated while with the children and (2) plaintiff had a history of missing parenting-time sessions. These allegations pertain to parenting-time best-interest factors MCL 722.27a(7)(c) (reasonable likelihood of abuse/neglect) and (g) (failure to exercise reasonable parenting time), as well as MCL 722.27a(3) (stating that parenting time should not be granted where the time “would endanger the child’s physical, mental, or emotional health”). Despite defendant’s arguments, supported by documentary evidence, the trial court did not make findings of fact regarding these issues, did not reference the disputed best-interest factors, and never explicitly stated that it would be in the children’s best interests to increase plaintiff’s parenting time. It was inappropriate for the court to ignore these matters. If the matter should arise in the future, the court should make the requisite findings. -11-

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