Krieg v. Baleja

MATTHEW J. KRIEG, Plaintiff-Appellee/Cross-Appellant, v. KATHERINE A. BALEJA, formerly known as KATHERINE A. KRIEG, Defendant-Appellant/Cross-Appellee

No. 359264

Court of Appeals of Michigan

October 20, 2022

UNPUBLISHED

Gratiot Circuit Court LC No. 16-003404-DM

Before: M. J. KELLY, P.J., and CAMERON and HOOD, JJ.

PER CURIAM.

Defendant appeals as of right the trial court's order changing the primary physical custody of the parties' minor child to plaintiff. Plaintiff has filed a cross-appeal challenging the trial court's decision to allow defendant's parenting time to remain unsupervised and declining to modify the parties' joint legal custody of the child. We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arises in the context of contentious divorce and custody proceedings, and these parties are before this Court for the third time. Originally, in Krieg v Krieg, unpublished per curiam opinion of the Court of Appeals, issued June 7, 2018 (Docket No. 341055), p 1 (Krieg I), plaintiff appealed the trial court's judgment of divorce and custody decision, which awarded primary physical custody of the child to defendant. We described the underlying facts as follows:

The parties married in July 2014. [Defendant], who had lived in Saginaw, moved into [plaintiff's] home in Alma. [Plaintiff] began an extramarital affair with Rachel Young, an employee at the pizzeria he owns, in October 2015. In December 2015, after [defendant] and [plaintiff] had discussed starting a family, [defendant] informed [plaintiff] that she was pregnant. [Plaintiff] reacted poorly to this news. [Defendant] later moved back to Saginaw, and [plaintiff] stayed in Alma, where he and Rachel currently live. [Plaintiff] filed for divorce in February 2016.

The child was born in August 2016. [Plaintiff] began visiting the child at [Defendant's] home a few times a week. In September 2016, the trial court entered a temporary order granting [plaintiff] three four-hour parenting visits per week, which he mostly exercised at his grandparents' home in Bay City. In February 2016 [sic], the trial court expanded [plaintiff's] parenting-time visits to eight hours, and he began to bring the child to his home in Alma.

The parties agreed to have Dr. Tracy Allan perform a custody evaluation. Dr. Allan found that [plaintiff] exhibited "solid" parenting skills while [defendant] showed "exceptional" parenting skills. Dr. Allan recommended that the parties receive equal parenting time on a gradually increasing basis. For example, she testified, [plaintiff] should have one overnight visit within one week and an additional overnight visit within another week, if the first overnight visit went well. Molly Minnick, an infant mental health specialist who became involved with the parties early in the child's life, also recommended that [plaintiff] receive overnight visitation, but she recommended a slower transition. Minnick proposed that [plaintiff] have one overnight visit per week for six weeks before adding a second weekly overnight visit, assuming all went well with the first overnight visit. The experts agreed that the child was bonded to both parents. At trial, [plaintiff] sought equal parenting time, while [defendant] requested primary physical custody and agreed to gradually increasing parenting time for [plaintiff].

The trial court issued a bench ruling in June 2017, when the child was 10 months old. The trial court first determined that an established custodial environment existed only with [defendant]. The trial court then found that [plaintiff's] request for equal parenting time would constitute a change in the custodial environment. Reviewing the best-interest factors and relying heavily on Dr. Allan's recommendations, the trial court found that four factors weighed in [defendant's] favor and the rest favored neither party. The trial court ruled that [plaintiff] failed to establish by clear and convincing evidence that a change in the custodial environment was in the child's best interests. The trial court awarded [defendant] primary physical custody and [plaintiff] one overnight parenting time visit and one midweek parenting-time visit per week. [Id., unpub op at 1-2.]

In this first appeal, this Court rejected plaintiff's arguments that the trial court erred when it found that an established custodial environment existed only with defendant, that the court abused its discretion by fashioning a parenting-time award, and that the court erred in its consideration of several of the statutory best-interest factors in MCL 722.23. Id., unpub op at 2-9.

Plaintiff later moved to modify his parenting time by increasing his overnight visits with the child. The referee determined that plaintiff had demonstrated a basis to increase parenting time and the trial court upheld this determination. Defendant appealed that order, and this Court affirmed. Krieg v Krieg, unpublished per curiam opinion of the Court of Appeals, issued February 11, 2021 (Docket No. 350466), p 1 (Krieg II).

While the second appeal was pending, plaintiff again moved for a family evaluation and a change of custody. Plaintiff argued that defendant was attempting to alienate the child against plaintiff and his family. In support of his motion, plaintiff identified numerous statements that the child had "parroted" from defendant or other persons, including "Daddy's bad guy," "Daddy's bad," "Rachel's bad," and the child's half-sister was "bad." According to plaintiff, the child reported that defendant had told him these things. The child also reported falsehoods that defendant allegedly told him, such as that plaintiff had "smack[ed] down the door" trying to get into defendant's home, and that plaintiff had kicked defendant out of his home in order to have Rachel live with him. Plaintiff maintained that the child's relationships with him and his family were normal, but the child still recited these disparagements and falsehoods as if they were fact. Plaintiff also noted that defendant had been keeping an "obsession-driven logbook" that documented behavior like defendant inspecting the child's feces and determining that plaintiff was feeding the child improperly, or that she had checked plaintiff's Facebook posts in order to claim that he was neglecting the child or using the Internet while driving. Plaintiff argued that defendant's actions were designed to alienate the child from plaintiff. Plaintiff argued that the trial court should either diagnose, monitor, and treat defendant to stop her alienating behavior, or change the child's custodial environment to plaintiff's "psychologically safe" home.^[1] Plaintiff requested a full-family evaluation by a trained expert in family evaluation, and an evidentiary hearing. The trial court found that the allegations in plaintiff's motion demonstrated proper cause or a change of circumstances sufficient to support the requested change of custody. Accordingly, the court referred the matter for a referee hearing and appointed Sharon Hobbs, Ph.D., to complete a family evaluation.

At the hearing, the referee heard testimony from the parties, Dr. Hobbs, and other witnesses, including Randy Flood, a limited license psychologist who was qualified as an expert in psychology, parental alienation, psychological evaluations, family evaluations, parental fitness, and "resist and refuse dynamics." Plaintiff also presented audio recordings of some of the child's statements and explanations that defendant had either told him to make the statements, or that he had learned them from her. The referee considered the statutory best-interest factors in MCL 722.23 and found that several factors favored plaintiff, largely relying on testimony from Dr. Hobbs and Flood about how the child's comments and other behaviors indicated that defendant was engaging in alienating conduct and that defendant's own behaviors indicated that she was dependent on the child for her own nurturing, referred to as "enmeshment," which was usually unhealthy. Dr. Hobbs and Flood provided similar, though not identical, testimony as to how these behaviors were negatively impacting the child and could lead to further harm if they continued. The two witnesses also offered recommendations on what could be done to rectify the situation. The referee recommended that plaintiff be awarded primary physical custody of the child and that defendant be allowed only supervised parenting time in a therapeutic setting. The referee did not discuss plaintiff's belated request that he also be awarded sole legal custody of the child.

Following objections, the trial court generally agreed with the referee's findings and conclusions. However, the court disagreed that limiting defendant's parenting time to supervised parenting time would be in the child's best interests. The court awarded, among other things, primary physical custody of the child to plaintiff. Defendant was awarded unsupervised parenting time every other weekend, and for three hours during the week. The parties were ordered to attend coparenting counseling, defendant was ordered to attend individual counseling, and the child was to receive individual counseling for a period of time to be determined by the counselor. This appeal followed.

II. PRESERVATION AND STANDARD OF REVIEW

"[I]n child custody-disputes, 'all orders and judgments of the circuit court 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.'" Dailey v Kloenhamer, 291 Mich.App. 660, 664; 811 N.W.2d 501 (2011), quoting MCL 722.28. The great weight of the evidence standard of review instructs that "the trial court's determination will be affirmed unless the...