Welch v. Grew

UNPUBLISHED

Lapeer Circuit Court Family Division LC No. 14-047997-DM

Before: Brock A. Swartzle, P.J., and Mark J. Cavanagh and Michael F. Gadola, JJ.

PER CURIAM.

Plaintiff-mother and defendant-father have one child together and are divorced. The judgment of divorce granted them joint legal custody, but gave plaintiff sole physical custody; defendant had limited parenting time. A few years after their divorce defendant moved for joint physical custody and equal parenting time. The trial court granted defendant's motion. Plaintiff appeals that decision. We affirm.

I. BACKGROUND

The parties were divorced by a consent judgment in August 2015. Plaintiff was awarded sole physical custody but the parties shared joint legal custody. Defendant was awarded parenting time every weekend and every other Wednesday evening. The parties later stipulated to modify defendant's parenting time to twice a month from Thursday through Sunday. In November 2019, defendant moved for joint physical custody and equal parenting time, with legal custody remaining joint. Defendant argued that plaintiff repeatedly made unfounded accusations that he abused the minor child in an attempt to alienate defendant from the minor child. The trial court referred the matter to the Friend of the Court for an investigation and recommendation.

In August 2020, the Friend of the Court recommended granting defendant's motion, and defendant moved to implement the Friend of the Court's recommendation. Plaintiff opposed implementing the Friend of the Court's recommendation because she did not participate in the Friend of the Court's investigation. While plaintiff and her counsel asserted they had not received notice of the investigation, the Friend of the Court's file showed that letters were sent to both with

no response. Accordingly, the trial court referred defendant's motion to modify physical custody and parenting time to a domestic relations referee for an evidentiary hearing and recommendation.

Following a hearing, the referee recommended granting defendant's motion and the trial court agreed with the referee's recommended order. Plaintiff filed several objections to the referee's findings and recommendation, which the trial court rejected. This appeal followed.

II. ANALYSIS

A. CHANGE OF CUSTODY

Plaintiff first argues that defendant failed to introduce sufficient evidence to justify a change of custody and parenting time. "In a child custody dispute, '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.'" Pennington v Pennington, 329 Mich.App. 562, 569-570; 944 N.W.2d 131 (2019), quoting MCL 722.28. "A finding of fact is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction." Id. at 570.

A trial court may modify a custody order, but before the court may consider a modification, the party moving for the change must demonstrate proper cause or a change of circumstances to justify considering a modification as a threshold matter. Vodvarka v Grasmeyer, 259 Mich.App. 499, 508-509; 675 N.W.2d 847 (2003). In this case, the referee found proper cause to consider a modification. "[P]roper cause means one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Id. at 511. While "[t]here is no hard or fast rule" for what grounds constitute proper cause, "trial courts can look for guidance in the twelve factors developed by the Legislature for determining what is in the child's best interests" in MCL 722.23. Id.

"Where there is a joint established custodial environment, neither parent's custody may be disrupted absent clear and convincing evidence." Powery v Wells, 278 Mich.App. 526, 529; 752 N.W.2d 47 (2008) (quotation marks, citation, and emphasis omitted). Evidence is clear and convincing when it

produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. [In re Martin, 450 Mich. 204, 227 538 N.W.2d 399 (1995) (quotation marks, brackets, and citation omitted).]

The party seeking a change of custody bears the burden of persuasion. Powery, 278 Mich.App. at 529. Consequently, defendant had the burden to establish by clear and convincing evidence that a

change of custody was in the minor child's best interests. See id.^[1] The best-interest factors in MCL 722.23 are:

(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 care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.

The referee's finding of proper cause was not against the great weight of the evidence. When asked if she obtained defendant's permission before switching the minor child's school, plaintiff responded: "I did not get permission from [defendant, ] as I cannot communicate with [him.]" Plaintiff also permitted the minor child, at the age of seven, to have one of his ears pierced. When asked whether she discussed the matter with defendant beforehand, plaintiff responded: "No. For the record, I don't ask [defendant] for permission on anything, because he will not properly communicate with me." In addition, defendant testified that plaintiff had been taking the minor child to a therapist without telling defendant. The referee found that defendant demonstrated four somewhat-overlapping proper causes to consider a custody modification: (1) plaintiff's inability to abide by the joint legal custody order, (2) plaintiff's failure to communicate effectively with defendant regarding the minor child, (3) plaintiff's unilateral decision-making with respect to the minor child, and (4) plaintiff's behavior that interrupted defendant's relationship with the minor child.

Each of the four proper causes found by the referee "have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Vodvarka, 259 Mich.App. at 511. Moreover, they related to the school record of the minor child, MCL 722.23(h), and the "willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent," MCL 722.23(h) and (j). In other words, plaintiff's refusal to consult defendant on important decisions regarding the minor child despite the parties sharing joint legal custody justified considering a physical custody modification.

The referee, after making specific findings regarding each best-interest factor, found a change of custody to be in the minor child's best interests. Specifically, the referee found factors (a), (c), (d), (f), (g), (i), and (k) not to favor either party and found factors (b), (e), (h), (j), and (l) to favor defendant. Regarding factor (b), the referee found that both parties possessed the capacity and disposition to give the minor child love, affection, and guidance, but that plaintiff's inability to take responsibility for her...