Amawi v. Deming

• Docket Number: 362538
• Decision Date: 20 July 2023
• Parties: ELHAM MA AMAWI, also known as JULIANNE WINSTON, Plaintiff-Appellant, v. STEVEN ALAN DEMING, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

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ELHAM MA AMAWI, also known as JULIANNE WINSTON, Plaintiff-Appellant, v. STEVEN ALAN DEMING, Defendant-Appellee.

No. 362538

Court of Appeals of Michigan

July 20, 2023

UNPUBLISHED

Berrien Circuit Court LCNo. 2014-003582-DP

Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.

PER CURIAM.

In this child custody dispute, plaintiff, Elham Ma Amawi, appeals by right the trial court's order granting defendant, Steven Alan Deming, sole legal and physical custody of their two minor children.Plaintiff has filed a brief on her own behalf on appeal.In her brief, she complains generally about the Friend of the Court(FOC), the trial court's referees and the trial judge.She also claims that the trial court erred in numerous ways that she believes warrant relief.We affirm.

I.BASIC FACTS

Defendant and plaintiff had a brief relationship during which they had two sons: CD and JA.The trial court initially awarded plaintiff sole legal and physical custody of the children.

Defendant admitted that he had a problem with alcohol and that he was arrested for drunk driving.He went to prison and was released in 2018.Defendant apparently addressed his alcohol abuse problem in prison and he tried to be a part of his sons' lives after his release.Plaintiff, however, did not agree that defendant should be a part of the children's lives, so she did not cooperate with the parenting-time orders.She eventually moved the children to another county and continued to deprive defendant of parenting time.

The trial court eventually found plaintiff to be in contempt for violating the parenting-time orders.Plaintiff also repeatedly tried to get defendant's parenting time suspended.Evidence in the record indicates that, even when defendant exercised parenting time, plaintiff used Children's Protective Services (CPS) and police officers to interfere with his parenting time.In May 2022, after years of conflict over parenting time, defendant moved to change the children's custody to joint legal and physical custody because plaintiff alienated the children from him.A referee held a hearing on the proposed change in July 2022.The referee found that it served the children's best interests to award defendant sole legal and physical custody of the boys.

II.PRELIMINARY MATTERS: RECORD, WAIVER, AND JURISDICTION

Both parties have appeared in this Courtin propria persona, and both have included documents with their submissions on appeal that they believe this Court should review.This Court's review, however, is limited to the original record.SeeMCR 7.210(A);Dora v Lesinski, 351 Mich. 579, 581; 88 N.W.2d 592(1958).For that reason, we have only considered those documents that were part of the lower court record.

We further note that plaintiff submitted only one transcript to this Court, even after this Court's clerk informed her that she needed to submit all the relevant transcripts.SeeMCR 7.210(B)(1).We decline to consider any issue on appeal that cannot properly be decided as a result of plaintiff's failure to provide the relevant transcripts.SeeMyers v Jarnac, 189 Mich.App. 436, 443-444; 474 N.W.2d 302(1991).

We have carefully reviewed the parties' briefs on appeal and, giving them the benefit of the doubt as parties appearing in propria persona, we have attempted to address every issue that they arguably have raised in this Court.To the extent that we have not addressed a particular claim of error, it is because the claim lacked factual or legal analysis sufficient to permit us to address it; therefore, we treat those claims as having been abandoned on appeal.SeeMitcham v Detroit, 355 Mich. 182, 203; 94 N.W.2d 388(1959).

Defendant also challenges this Court's jurisdiction.He asserts, in effect, that plaintiff filed her claim of appeal too soon because the trial court's order had not yet become final and plaintiff objected to the order in the trial court.The fact that the order changing custody had not yet taken effect is not dispositive.In re Application of Ind Mich. Power Co to Increase Rates, 329 Mich.App. 397, 411; 942 N.W.2d 639(2019).The trial court's order changing custody was a final order under MCR 7.202(6)(a)(iii).Plaintiff had to file her appeal within 21 days of its entry pursuant to MCL 7.204(A)(1)(a).Plaintiff filed her claim of appeal within 21 days of entry of the order at issue, and her challenge to entry of the order in the trial court did not deprive this Court of jurisdiction.SeeNordstrom v Auto-Owners Ins Co, 486 Mich. 962; 782 N.W.2d 779(2010).Nevertheless, we agree that some of plaintiff's claims may be beyond the scope of her appeal.SeeMCR 7.203(A)(limiting jurisdiction to review of that portion of the order with respect to which there is an appeal of right).To the extent that this Court does not have jurisdiction to hear plaintiff's appeal as an appeal of right, in the interests of finality, we treat plaintiff's appeal of such issues as on leave granted.Wardell v Hincka, 297 Mich.App. 127, 133 n 1; 822 N.W.2d 278(2012).

III.CHANGE IN CUSTODY

A.STANDARD OF REVIEW

In child custody disputes, this Court reviews the trial court's factual findings by examining whether the findings are against the great weight of the evidence.SeeFletcher v Fletcher, 447 Mich. 871, 877-878; 526 N.W.2d 889(1994).A finding is against the great weight of the evidence when it is so contrary to the weight of the evidence that it is unwarranted or is so plainly a miscarriage of justice that it would warrant a new trial.Id. at 878.This Court reviews a trial court's discretionary rulings in a custody dispute for a palpable abuse of discretion.MCL 722.28."An abuse of discretion exists 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."Berger v Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336(2008).Finally, this Court reviews the trial court's selection, application, and interpretation of the law governing custody disputes for "clear legal error."MCL 722.28.The clear-legal-error standard is the same as the ordinary-legal-error standard.Fletcher, 447 Mich. at 881.Accordingly, this Court reviews de novo the trial court's application of the law to the facts.SeeKaeb v Kaeb, 309 Mich.App. 556, 564; 873 N.W.2d 319(2015).This Court similarly reviews de novo whether a party received due process.SeeReed v Reed, 265 Mich.App. 131, 157; 693 N.W.2d 825(2005).

B.NOTICE

On appeal, plaintiff briefly asserts that she had no notice of defendant's motion to change custody and no notice of the hearing.The record does not support her claim.

Plaintiff had a due-process right to service of notice "by the best means available, by methods reasonably calculated to give [her] actual notice of the proceeding and an opportunity to be heard and to present objections or defenses."Hill v Frawley, 155 Mich.App. 611, 613; 400 N.W.2d 328(1986).Defendant formally moved for a change in custody on May 4, 2022.Because plaintiff's address was confidential, seeMCR 3.203(F), an FOC staffer mailed the notice on May 9, 2022, to plaintiff's last known address, which was adequate under the court rules.SeeMCR 3.203(A);MCR 3.203(F)(stating that the party with the confidential address has the obligation to provide an alternate address for service).

Moreover, the referee inquired about the notice provided to plaintiff, and the FOC Supervisor, Kelly Milnickel, testified at the hearing that the FOC had received an e-mail from plaintiff in which she stated that she had actual notice of the hearing a week before the hearing date.Plaintiff asserted in that e-mail that she had no transportation and wanted the hearing adjourned.Milnickel stated that plaintiff had a habit of requesting adjournments premised on transportation; she had done so three times previously.Milnickel agreed that plaintiff had 10 weeks to arrange transportation for the hearing held in July 2022.Under the circumstances, plaintiff has not demonstrated that the procedures for giving notice of the hearing did not comply with minimum due process.SeeReed, 265 Mich.App. at 157;Hill, 155 Mich.App. at 613.

C.CHANGED CIRCUMSTANCES

We next address plaintiff's claim that defendant failed to establish proper cause or a change of circumstances that warranted a hearing on custody.

Michigan courts generally avoid unwarranted and disruptive changes to a child's custodial environment.SeeElliott-Mault v Elliott, 329 Mich. 544, 552-553; 46 N.W.2d 373(1951).For that reason, a party requesting a change in the child's custodial environment must demonstrate a "change of circumstances" since the last applicable order before revisiting the child's custodial environment.SeeSweet v Sweet, 329 Mich. 251, 255-256; 45 N.W.2d 58(1950).The Legislature codified that requirement under MCL 722.27.

The Legislature provided that a trial court"shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child."MCL 722.27(1)(c).The Legislature established the higher burden of proof for changes that alter an established custodial environment to "minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an 'established custodial environment,' except in the most compelling cases."Baker v Baker, 411 Mich. 567, 576-577; 309 N.W.2d 532(1981).Accordingly, the party requesting the change must establish proper cause or a change in circumstances before the trial court may even hold a...