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recognizing that a parent's repeated failure to facilitate visitation or comply with a parenting-time order "related to the statutory best-interest factors and constituted facts that have or could have a significant effect on the children's lives"
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Docket No. 306559.
2012-05-15
MITCHELL v. MITCHELL.
Greer & Dykman, P.C. (by John M. Greer, Fremont, and Melissa K. Dykman), for John E. Mitchell. Kate A. Mitchell in propria persona.
Greer & Dykman, P.C. (by John M. Greer, Fremont, and Melissa K. Dykman), for John E. Mitchell. Kate A. Mitchell in propria persona.
Before: METER, P.J., and FITZGERALD and MARKEY, JJ.
PER CURIAM.
Defendant appeals by right the trial court's October 3, 2011, order granting a modification of the parties' divorce judgment with respect to child custody. We affirm.
The parties were married in 1991, had one child in 2003 and one in 2006, and were divorced on March 30, 2009. The parties were awarded joint physical and legal custody of the children. Six months after the divorce judgment, defendant moved to Texas with the children. Defendant began dating Todd Smith while in Texas, and plaintiff requested that Smith submit to a background check because plaintiff was concerned for the safety of his children. The trial court ordered defendant to provide information to plaintiff, but defendant and Smith refused.
At a hearing on December 29, 2010, the trial court ordered defendant to provide Smith's information to the Friend of the Court, reasoning that a background check was necessary to ensure the children's safety. Defendant and Smith continued to resist. Later, on February 15, 2011, the trial court entered an order temporarily transferring physical custody to plaintiff. Defendant appealed, and this Court vacated the trial court's order and remanded the matter for continued proceedings consistent with the Child Custody Act. Mitchell v. Mitchell, unpublished opinion per curiam of the Court of Appeals, issued September 15, 2011 (Docket No. 303257), 2011 WL 4104978 (Mitchell I ).
Before this Court released its opinion in Mitchell I, plaintiff moved to modify the custody arrangement so that he would have physical custody during the school year and defendant would have physical custody during the summers. The trial court issued an oral opinion after a two-day evidentiary hearing.
By the time this Court issued Mitchell I, the trial court had already held the two-day evidentiary hearing on plaintiff's motion for modification of custody. At a hearing on defendant's objections to the entry of a proposed order, the trial court determined that its two-day evidentiary hearing fully complied with this Court's remand order in Mitchell I. Consequently, the trial court entered its order to modify custody, which defendant now appeals.
Defendant first argues that the trial court did not establish proper cause or a change of circumstances in a separate proceeding before the hearing to modify custody. We disagree.
All custody orders must be affirmed on appeal unless the trial court committed a palpable abuse of discretion, made findings against the great weight of the evidence, or made a clear legal error. MCL 722.28; Pierron v. Pierron, 486 Mich. 81, 85, 782 N.W.2d 480 (2010). The first step toward modifying a custody award is to show proper cause or a change of circumstances. MCL 722.27(1)(c); Parent v. Parent, 282 Mich.App. 152, 154, 762 N.W.2d 553 (2009). But the determination of whether proper cause or a change of circumstances exists does not necessarily require an evidentiary hearing. Corporan v. Henton, 282 Mich.App. 599, 605, 766 N.W.2d 903 (2009).
To establish proper cause, the moving party must establish by a preponderance of the evidence an appropriate ground that would justify the trial court's taking action. Vodvarka v. Grasmeyer, 259 Mich.App. 499, 511–512, 675 N.W.2d 847 (2003). Appropriate grounds should include at least one of the 12 statutory best-interest factors and must concern matters that have or could have a significant effect on the child's life. Id. Only after a moving party has established proper cause or a change of circumstances may the trial court reevaluate the statutory best-interest factors. Id.
In this case, the trial court expressly stated on the record its reasons for finding that the proper cause standard had been satisfied. Defendant argues that this determination should have been made before the hearing to modify custody and relies on this Court's opinion in Mitchell I. Defendant mischaracterizes this Court's opinion, which provides: “Before modifying or amending an existing custody order, however, the circuit court must determine whether there has been a change in circumstances or if proper cause exists to revisit the custody decision.” Mitchell I, unpub. op. at 2. This Court did not hold that a separate hearing had to be conducted before a custody decision may be revisited, nor is one necessarily required. Vodvarka, 259 Mich.App. at 512, 675 N.W.2d 847. The trial court is merely required to preliminarily determine whether proper cause or a change of circumstances exists before reviewing the statutory best-interest factors with an eye to possibly modifying a prior custody order. Id.; MCL 722.27(1)(c).
In this case, the trial court clearly stated on the record its determination that proper cause had been established before proceeding with its custody analysis of the statutory best-interest factors. Specifically, the trial court found defendant at fault for failing to facilitate plaintiff's communication with the children by Skype, as the court had previously ordered. The trial court also found that defendant had failed to pay her court-ordered share of parenting-time travel expenses and failed to sign a release for the children's school records, again as required by previous court order. The trial court found that defendant and Smith had continued to refuse to disclose information on Smith for a background check. Finally, the trial court found that allegations of plaintiff touching his daughter inappropriately were unfounded and that it was likely defendant had fabricated the allegations. And the trial court's determination of proper cause was related to the statutory best-interest factors and constituted facts that have or could have a significant effect on the children's lives. Vodvarka, 259 Mich.App. at 512, 675 N.W.2d 847.
Defendant also argues that the trial court's bases for determining proper cause were the exact factors this Court in Mitchell I said could not be considered. Again, defendant mischaracterizes this Court's opinion. In Mitchell I this Court said that the trial court had erred by not following the procedure outlined in MCL 722.27(1), i.e., by not considering the statutory best-interest factors of MCL 722.23 and by improperly using custody as a means to punish defendant for refusing to obey the court's orders. Mitchell I, unpub. op. at 3. This Court remanded to the trial court to conduct proceedings consistent with the Child Custody Act. Id. This Court did not state that the trial court could not consider certain facts or circumstances in proper proceedings. The trial court's determination that proper cause or a change of circumstances existed to justify considering whether modification of its prior order would be in the children's best interests was not against the great weight of the evidence. Pierron, 486 Mich. at 85, 782 N.W.2d 480.
Next, defendant argues that the trial court erred by modifying custody because the trial court's decision was against the great weight of the evidence. We disagree.
This Court reviews the trial court's findings of fact under the great weight of the evidence standard. MCL 722.28. Under this standard the trial court's determination will be affirmed unless the evidence clearly preponderates in the other direction. Pierron, 486 Mich. at 85, 782 N.W.2d 480. Before modifying a custody award the trial court must determine whether there is proper cause or a change in circumstances justifying a modification in the child's best interests. Vodvarka, 259 Mich.App. at 511–512, 675 N.W.2d 847.
Once the trial court determines there is proper cause or a change of circumstances to permit the matter to be revisited, the trial court still may not modify custody from an established custodial environment unless there is clear and convincing evidence that a modification is in the best interest of the child. MCL 722.27(1)(c). Thus, if the trial court determines that an established custodial environment exists, the moving party has the burden of proving by clear and convincing evidence that the proposed modification is in the best interests of the children. Parent, 282 Mich.App. at 154, 762 N.W.2d 553. In determining whether the moving party has satisfied this burden, the trial court must consider all the statutory best-interest factors set out in MCL 722.23. Pierron, 486 Mich. at 92–93, 782 N.W.2d 480;Rittershaus v. Rittershaus, 273 Mich.App. 462, 475, 730 N.W.2d 262 (2007). In this case, the trial court determined that an established custodial relationship existed with both parents. So, plaintiff had the burden of proving by clear and convincing evidence that modification of the existing custody order was in the best interests of the children. Powery v. Wells, 278 Mich.App. 526, 529, 752 N.W.2d 47 (2008).
The trial court specified on the record the evidence it considered for each of the statutory best-interest factors and which parent the trial court found to be better suited in regard to each factor. The trial court also interviewed the children to determine their preference; however, the trial court indicated that the youngest child was not old enough to express a preference. The trial court further stated that it was not going to consider the children's purported desire to live in Texas because the court found that defendant and Smith's attempted bribery, encouragement, and possible threats undermined the children's credibility.
Defendant on appeal sets out many specific instances of what she does for the children and argues that she is the better parent. But defendant fails to acknowledge any of the testimony from plaintiff and makes assertions not supported by evidence in the record. The trial court considered everything defendant does for the children and commended her on her efforts; however, the trial court determined that, overall, a modification in custody was in the best interests of the children. After thoroughly reviewing the evidence presented and the trial court's findings, we conclude that the court's findings of fact were not against the great weight of the evidence. We also conclude that the court did not commit clear legal error on a major issue or abuse its discretion. MCL 722.28; Pierron, 486 Mich. at 85, 782 N.W.2d 480.
Defendant also argues that the trial court erred in limiting her parenting time because she had not provided Smith's personal information. Defendant argues that because obtaining Smith's personal information is not relevant to the best interests of the children, the conditions placed on defendant's visitation with the children should be struck. We disagree.
Because this issue was not raised before the trial court, it is unpreserved. Walters v. Nadell, 481 Mich. 377, 387, 751 N.W.2d 431 (2008). Nonetheless, this Court can overlook the preservation issue when “failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented.” Smith v. Foerster–Bolser Const., Inc., 269 Mich.App. 424, 427, 711 N.W.2d 421 (2006). In this case, because the issue deals with child custody and parenting time for defendant, failure to consider it could result in manifest injustice, so this Court will overlook the issue of preservation.
This Court reviews discretionary rulings, including a trial court's custody and parenting-time decisions, for an abuse of discretion. Berger v. Berger, 277 Mich.App. 700, 705, 747 N.W.2d 336 (2008). An abuse of discretion with regard to a custody issue occurs “when the trial court's decision 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.” Id.
The trial court determined that modifying the custody award was in the best interests of the children and awarded plaintiff physical custody during the school year. The trial court also determined that defendant's parenting time in Texas would be suspended until Smith disclosed his information for a background check. The trial court also expressed concern that defendant was “bitter, and vengeful, and vindictive” and that defendant would continue to make up unfounded allegations about plaintiff.
Defendant argues that the trial court's decision to place conditions on her parenting time because of Smith's refusal to submit to a background check was inappropriate. Defendant argues that this Court in Mitchell I held that defendant's failure to provide Smith's background information could not be considered. Defendant again mischaracterizes this Court's opinion. Although this Court determined that the trial court had failed to follow the proper steps before modifying the custody arrangement, it specifically did not make any decision regarding the legality of the court's underlying order for Smith to provide his identifying information to the Friend of the Court. Mitchell I, unpub. op. at 3. The trial court found reasons for concern in how defendant was acting and her accusations against plaintiff. In addition, the trial court was concerned that defendant was bribing and threatening the children. The trial court was also concerned that Smith appeared to be a factor in the behavior defendant was engaging in and determined that in the best interests of the children, Smith would not have contact with the children until a background check was completed. The trial court was very detailed and explicit in its findings regarding the children and their best interests. Our review of the record persuades us that the trial court did not abuse its discretion by placing limitations on defendant's parenting time on the basis of defendant's behavior and Smith's refusal to submit to a background check.
Lastly, defendant argues that the trial judge should be disqualified from hearing further matters on this case because he showed indignation toward defendant and this Court's rulings. We disagree.
This Court reviews a trial court's factual findings on a motion to disqualify for an abuse of discretion and reviews de novo the trial court's application of the facts to the law. Olson v. Olson, 256 Mich.App. 619, 638, 671 N.W.2d 64 (2003). The trial court abuses its discretion when the trial court's decision falls outside the range of reasonable outcomes. In re MKK, 286 Mich.App. 546, 564, 781 N.W.2d 132 (2009). Due process requires that an unbiased and impartial decision-maker hear and decide a case. Olson, 256 Mich.App. at 642, 671 N.W.2d 64. A trial judge is presumed unbiased, and the party asserting otherwise has the heavy burden of overcoming the presumption. In re MKK, 286 Mich.App. at 566, 781 N.W.2d 132.
Defendant argues that the trial judge should be disqualified because of his alleged indignation. Defendant does not develop her argument and does not cite where in the record the trial judge's indignation appears. Indeed, we do not know to what she refers, but she insists that the trial court has refused to follow this Court's ruling in Mitchell I. Defendant continues to mischaracterize this Court's opinion. In Mitchell I, this Court remanded the case for proceedings consistent with the Child Custody Act. Mitchell I, unpub. op. at 3. Contrary to defendant's argument, the trial court complied with this Court's opinion. The trial court held a two-day evidentiary hearing and, on the basis of that evidence, made necessary findings justifying its order to modify the prior custody order.
Defendant has not indicated any other basis to find that the trial judge is biased or otherwise partial. A party cannot simply assert an error or announce a position and then leave it to this Court to “discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959). Defendant has failed to carry her burden of demonstrating that the trial judge should be disqualified here.
We affirm.