Butler v. Simmons-Butler

308 Mich.App. 195

863 N.W.2d 677

BUTLER

v.SIMMONS–BUTLER.

Docket No. 321445.

Court of Appeals of Michigan.

Submitted Nov. 5, 2014, at Detroit.

Decided Nov. 18, 2014, at 9:30 a.m.

Law Offices of Steven A. Heisler, Esq., PLLC, Marine City (by Steven A. Heisler ), for plaintiff.

Law Office of David K. Sucher, Bloomfield Hills, (by David K. Sucher ) for defendant.

Before: WHITBECK, P.J., and FITZGERALD and MURRAY, JJ.

Opinion

MURRAY, J.

Defendant, Sherry Lynn Simmons–Butler, appeals as of right a divorce judgment entered by the St. Clair Circuit Court. On appeal, defendant generally argues that the trial court erred in (1) its custody and parenting-time determinations with respect to the parties' two minor children, (2) its division of the marital property and debt, and (3) its determinations regarding child support and spousal support. Intermixed in these general issues are several discrete ones, including whether the trial court had the authority to compel defendant to sign joint tax returns with plaintiff. Defendant further argues that the trial judge should be disqualified from any and all subsequent postjudgment proceedings. For the reasons outlined below, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

It is an understatement to say that this marriage went downhill quickly. The parties “met” through an Internet-based dating company and were married in October 2007. Plaintiff, a border patrol agent, was the main income source throughout the marriage, as defendant mostly stayed at home (with the children who were born soon after the marriage) until just prior to the divorce. Living in Arizona, just a year into the marriage, both parties allegedly engaged in domestic violence, leading defendant in 2010 to seek a personal protection order and a divorce from plaintiff in the Arizona courts. Ultimately the parties reconciled and moved to Michigan in 2011. By that time the parties had two young sons. The turmoil, unfortunately, did not end once they arrived on Michigan soil.

In fact, less than two years after moving to this state, defendant took the children without plaintiff's knowledge, and plaintiff almost immediately filed for divorce. Defendant repeatedly accused plaintiff of inappropriate behavior with the older child, but nothing was ever verified or confirmed. With the court now involved, the parties filed numerous motions (and defendant fired a good number of her attorneys) and engaged in significant discovery and counseling. The court twice temporarily changed the children's custody, with the last order awarding plaintiff temporary custody. Defendant was held in contempt of court for failing to comply with an order to return the children after parenting time, which ultimately led to her incarceration just prior to trial.

Trial occurred in late 2013, and after hearing all the evidence (much of which was presented by plaintiff), the court issued a very thorough, well-written and -reasoned opinion granting sole legal and physical custody to plaintiff, awarding plaintiff the marital home and all of its accompanying debt, evenly splitting the marital portion of plaintiff's main pension, and awarding two cars to plaintiff and the latest model to defendant. Spousal support was not awarded, defendant was ordered to pay child support, and miscellaneous other economic matters were decided by the court.

The final judgment of divorce was consistent with these rulings. Defendant now appeals that judgment as of right.

II. ANALYSIS

The first part of our analysis addresses defendant's challenge to the trial court's awarding both legal and physical custody of the children exclusively to plaintiff. As detailed below, successful appellate challenges to custody decisions are very difficult to come by, mostly because of the very deferential appellate standard of review. What makes this challenge even more difficult for defendant is that the trial court provided a complete written analysis on each of the relevant statutory best-interest factors.

A. CUSTODY ISSUES

A custody order “shall be affirmed on appeal unless 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.” MCL 722.28. Under the great weight standard, the trial court's factual determinations will be affirmed unless the evidence clearly preponderates in the other direction. Pierron v. Pierron, 486 Mich. 81, 85, 782 N.W.2d 480 (2010) ; Mitchell v. Mitchell, 296 Mich.App. 513, 519, 823 N.W.2d 153 (2012). In reviewing the findings, this Court defers to the trial court's credibility determinations. Shann v. Shann, 293 Mich.App. 302, 305, 809 N.W.2d 435 (2011). We apply the abuse of discretion standard to the trial court's discretionary rulings such as to whom custody is granted. Fletcher v. Fletcher,

447 Mich. 871, 879–880, 526 N.W.2d 889 (1994) ; Shann, 293 Mich.App. at 305, 809 N.W.2d 435. An abuse of discretion, for purposes of a child custody determination, exists when the result 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. Fletcher, 447 Mich. at 879–880, 526 N.W.2d 889 ; Mitchell, 296 Mich.App. at 522, 823 N.W.2d 153. Questions of law are reviewed for clear legal error. A trial court commits legal error when it incorrectly chooses, interprets or applies the law. Fletcher, 447 Mich. at 881, 526 N.W.2d 889 ; Sturgis v. Sturgis, 302 Mich.App. 706, 710, 840 N.W.2d 408 (2013).

1. LEGAL CUSTODY

Defendant argues that in awarding sole legal custody to plaintiff the court did not articulate with any specificity why it was doing so. The trial court's opinion belies this assertion. As defendant admits, in making this ruling the trial court specifically found that “[t]hrough her behavior, Defendant has demonstrated that she is both unwilling and unable to communicate and cooperate with Plaintiff in a manner that is in the children's best interests.” This is squarely in line with what is required to be considered under MCL 722.26a(1)(b). And in conjunction with its detailed findings under the best-interest factors outlined in MCL 722.23, the court also complied with the other necessary finding prior to deciding legal custody. MCL 722.26a(1)(a). These findings were more than adequate to comply with the statute and to support the court's decision awarding plaintiff sole legal custody.¹

2. PHYSICAL CUSTODY

Defendant also takes issue with the adequacy of the trial court's best-interest findings made in support of its physical custody award, as well as its findings on an established custodial environment.² We hold that the trial court's findings, which were supportive of its custody order, were not against the great weight of the evidence and the trial court did not abuse its discretion in ruling that plaintiff should be granted sole physical custody of the children.

Whether an established custodial environment exists is a question of fact that the trial court must address before it determines the child's best interests. Brausch v. Brausch, 283 Mich.App. 339, 356 n. 7, 770 N.W.2d 77 (2009). A custodial environment is established if:

[O]ver an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [MCL 722.27(1)(c).]

An established custodial environment is one of significant duration, both physical and psychological, in which the relationship between the custodian and child is marked by security, stability, and permanence. Baker v. Baker, 411 Mich. 567, 579–580, 309 N.W.2d 532 (1981) ; Berger v. Berger, 277 Mich.App. 700, 706, 747 N.W.2d 336 (2008). The provisions of a parenting-time order do not alone establish a custodial environment. Pierron, 486 Mich. at 87 n. 3, 782 N.W.2d 480.

The trial court found that there was no established custodial environment with either parent, and the evidence does not clearly preponderate against that decision. Essentially the evidence shows that there was repeated turmoil in these children's lives from birth to the time of the divorce proceedings, and once the divorce proceedings commenced, there were repeated custody changes. The children lived with both parties from birth until August 12, 2012, when defendant left the marital home with them. The children then lived with defendant until the trial court granted plaintiff temporary custody in July 2013. Defendant took the children for a period of time in November 2013 in violation of the custody order, but the children otherwise remained in plaintiff's care until the issuance of the trial court's March 2014 opinionand decision. During this time there was also significant turmoil in the relationships the children had with their parents. The record evidence—not to mention the caselaw—firmly supports the trial court's finding that no established custodial environment existed between the children and either parent. See Hayes v. Hayes, 209 Mich.App. 385, 387–389, 532 N.W.2d 190 (1995) ; Bowers v. Bowers, 198 Mich.App. 320, 323–327, 497 N.W.2d 602 (1993).

The trial court then properly went on to determine the appropriate custody arrangement for the children, turning to the best-interest factors set forth in MCL 722.23. Those factors require consideration of:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial

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