Custody; Proper cause & change of circumstances; Vodvarka v Grasmeyer

The court vacated the trial court’s order denying defendant-mother’s motion for a change in custody and parenting time, and remanded for further proceedings. The parties “share joint physical and legal custody of their biological child.” Defendant argued that because she alleged proper cause and change of circumstances pursuant to Vodvarka, “the trial court erred by denying her motion without first holding an evidentiary hearing on the disputed facts.” She also asserted that it “did not offer a rationale for its decision, and given the lack of findings presented by the trial court, this Court should remand for further proceedings.” The court concluded that although “the trial court was not required to conduct an evidentiary hearing in making the threshold consideration as to proper cause or change in circumstances, . . . it must determine ‘by requiring an offer of proof or otherwise, whether there are contested factual issues that must be resolved in order for the court to make an informed decision on the motion[.]’” It did not fulfill that obligation. At the end of the hearing, the trial “court did not indicate it was accepting as true defendant’s allegations in support of proper cause or change in circumstances. Nor did it require defendant (or plaintiff) to provide an offer of proof. And, finally, it did not hold an evidentiary hearing to determine the veracity of defendant’s evidence (if any) in support of her allegations.” On appeal, the court “must review the trial court’s determination to determine whether ‘the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’” The court noted that this was “not de novo review, and in the absence of any explanation as to why the motion was denied, we cannot conduct our appellate review under these deferential standards of review.” It remanded the case “for the limited purpose of allowing the trial court to present its findings as to why defendant did not establish proper cause or change circumstances[.]” The court retained jurisdiction.