Gittler v. Gittler

KRISTEN MICHELLE GITTLER also known as KRISTEN MICHELLE STEENHOVEN, Plaintiff-Appellee, v. NICHOLAS PAUL GITTLER, Defendant-Appellant.

No. 356034

Court of Appeals of Michigan

September 23, 2021

UNPUBLISHED

Kalamazoo Circuit Court LC No. 2016-005294-DM

Before: Murray, C.J., and M. J. Kelly and O'Brien, JJ.

Per Curiam.

Defendant-father appeals by right the trial court order removing plaintiff-mother's safety restrictions and providing that the parties' minor child, PG, attend school while in plaintiff's care. Because we are bound by the applicable standards of review, we affirm in part and reverse in part.

I. BASIC FACTS

Plaintiff filed for divorce in 2016. The judgment of divorce provided that the parties would share joint legal and physical custody of PG. After the parties had agreed to the terms of the judgment of divorce, but before it was entered, defendant moved the trial court to amend the parenting-time agreement because Children's Protective Services was investigating plaintiff on the basis of her having homicidal thoughts about PG. The trial court ordered safety restrictions for plaintiff's parenting time, including that a door alarm be placed on PG's bedroom door. Plaintiff lived with her parents, and the trial court ordered that plaintiff's parents not leave PG alone with plaintiff. The trial court additionally ordered plaintiff to take all of her prescribed medications.

The present dispute arises out of defendant's motion to change custody and parenting time in order for PG to attend kindergarten and plaintiff's motion to lift safety restrictions that were in place during her parenting time with PG. At an evidentiary hearing on the parties' motions, plaintiff testified that she had been diagnosed with obsessive compulsive disorder (OCD), post-traumatic stress disorder, and dysthymia, or long-term depression. Plaintiff was last hospitalized at the end of 2017, which was nearly three years earlier. Plaintiff testified that she did not pose any threat to herself or PG. She stated that she had reported her ideations to medical providers despite knowing that it would be reported to the court in order to ensure that she was safe for herself and PG. She added that she had had intrusive thoughts about suicide since 2019, but she had not had any ideation or planning, and no homicidal ideation was reported. Plaintiff testified that she had a good support system and more coping skills than she had in 2017. She was taking lithium, which she found was helpful. She also returned to college in January 2018 and was working toward her bachelor's degree in mechanical engineering.

Plaintiff admitted that she stopped taking her medication at the end of 2017 before beginning to take it again at the end of 2018. Plaintiff had stopped taking her medication despite the safety plan requirement because her mother, who was a nurse told her that she was overmedicated and because of the side effects that she experienced. Plaintiff thought that her counselor, Laura Kellicut, and nurse practitioner in psychiatry, Amy Reed, were helpful. Plaintiff testified that her medical providers were now listening to her concerns about her medications, so the medications were no longer an issue. Plaintiff articulated that she understood why the safety plan had been put into place at the time, but she did not believe it remained necessary. Plaintiff thought that she had not "been able to fully parent" PG because of the safety plan.

Kellicut, plaintiff's counselor, testified that she met weekly with plaintiff. Kellicut had no concerns about plaintiff being alone with PG or her ability to parent him. She opined that plaintiff was "stable" and experienced stress from normal life events, and she explained that she worked with plaintiff to address plaintiff's OCD and intrusive thoughts.

The parties each testified that it was in PG's best interests to attend kindergarten that fall. Plaintiff testified that she wanted PG to attend Comstock STEM Academy because it had small classes, individualized instruction, project work, and more resources. Plaintiff thought that Comstock STEM was a good fit for PG because he had shown aptitude in STEM subjects.

Defendant testified that he was an engineer and worked from approximately 6:00 a.m. to 2:30 p.m. Defendant was working from home. He was also taking classes in the evenings for his mechanical engineering degree. Defendant was in the process of buying his home through a land contract and had no plans to move. Defendant married his wife in 2019 and had a daughter from a previous relationship who attended Jefferson Elementary, where he wanted PG to attend because defendant saw how the staff worked "with and for the child." Defendant thought that the percentage of students at Jefferson Elementary who spoke different languages was a benefit for PG, as diversity was good for children. Defendant did not think it was necessary to focus on science or math at that point because he did not want to "shoehorn" PG in one academic direction, even though PG was a bright child.

Defendant testified that PG and his half-sister were close. Defendant did not have any issues working from home while caring for his daughter and PG, or with helping his daughter with her schoolwork once school became virtual because of the pandemic. Defendant testified that he had flexibility at his work, so he could provide PG transportation or take extra time with him. Defendant paid for PG's health insurance through his employer and made sufficient income to support the family. Defendant added that he had a good relationship with PG and that they did activities like going to the park or involving PG with his sister's scout troop. He did most of the cooking for PG and read with him. Defendant testified that his parents, grandparents, and siblings all lived nearby, and PG had good relationships with them. Defendant stated that plaintiff had only participated in two of PG's weekly exchanges that year. Defendant testified that plaintiff's safety plan was in PG's best interests because plaintiff's mental health affected her ability to parent.

With regard to his own mental-health issues, defendant testified that he had been diagnosed with bipolar II in 2015, but he no longer needed or took medication for it. Defendant admitted that he had shared posts online that referred to mental health in attempts to be empathetic with people or to be funny.

Following the evidentiary hearing, the referee found it was no longer necessary for plaintiff to be supervised when with PG or for PG to have an alarm on his bedroom door. The referee recommended that plaintiff continue to take her medications, follow her treatment providers' recommendations, and live with her parents. The referee found that it was in PG's best interests to attend STEM Academy. Defendant objected to the referee's recommendation, and the trial court held a de novo review hearing. Following that hearing, the trial court entered an order removing the safety restrictions, ordering PG to attend STEM Academy, and ordering that PG would reside primarily with plaintiff.

II. CUSTODY ORDER

A. STANDARD OF REVIEW

"Three different standards govern our review of a circuit court's decision in a child-custody dispute. We review findings of fact to determine if they are against the great weight of the evidence, we review discretionary decisions for an abuse of discretion, and we review questions of law for clear error." Kubicki v Sharpe, 306 Mich.App. 525, 538; 858 N.W.2d 57 (2014). Under the great-weight-of-the-evidence standard, this Court will affirm a trial court's findings of fact "unless the evidence clearly preponderates in the other direction." Mitchell v Mitchell, 296 Mich.App. 513, 519; 823 N.W.2d 153 (2012).

B. ANALYSIS

1. REMOVAL OF SAFETY RESTRICTIONS

Defendant argues that it was against the great weight of the evidence for the trial court to remove plaintiff's safety restrictions and that the removal posed a substantial risk of harm to PG. We agree.

A trial court may only modify previous judgments or orders when there is "proper cause shown or because of change of circumstances." MCL 722.27(1)(c). When a modification will disrupt a custodial environment, a moving party must show an appropriate ground that will have a significant effect on the child's life. Vodvarka v Grasmeyer, 259 Mich.App. 499, 511; 675 N.W.2d 847 (2003). If a modification will not change the established custodial environment, normal life changes can warrant modification, Shade v Wright, 291 Mich.App. 17, 30-31; 805 N.W.2d 1 (2010), and the "lesser, more flexible understanding of 'proper cause' or 'change in circumstances'" applies, Kaeb v Kaeb, 309 Mich.App. 556, 570-571; 873 N.W.2d 319 (2015). A condition that was once in the child's best interests may not be in that child's best interests at another point in the child's life. Id. at 571. "[A] party establishes proper cause to revisit the condition if he or she demonstrates that there is an appropriate ground for taking legal action." Id. Once the moving party demonstrates proper cause or a change in circumstances, trial courts have the "authority to adopt, revise, or revoke a condition whenever it is in the best interests of the child to do so." Id. at 571-572.

Here plaintiff demonstrated proper cause or change of circumstance through the evidence presented about her improved mental health and the impact that the restrictions had on her ability to parent PG. See id. at 572-573. Plaintiff and her mother testified about the improvements that plaintiff had made since the plan was implemented. Plaintiff had been seeing Kellicut, her counselor, since April 2019, and Kellicut testified that she had no concerns about PG's safety when with plaintiff. Plaintiff and...