Bowers v. Bowers
| Decision Date | 01 March 1993 |
| Docket Number | Docket No. 146423 |
| Citation | 198 Mich.App. 320,497 N.W.2d 602 |
| Parties | Jeffrey A. BOWERS, Plaintiff-Appellee, v. Terri K. BOWERS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Philip A. Clancey & Associates, P.C. by Philip A. Clancey, Traverse City, for plaintiff.
Robert B. Relph, Grand Rapids, for defendant.
Before HOOD, P.J., and NEFF and REILLY, JJ.
This is a custody dispute arising from a divorce action. Defendant appeals as of right from an order granting plaintiff custody of both of the parties' children. We reverse in part. This is the second time that this Court has rendered an opinion concerning the custody of these children. See Bowers v. Bowers, 190 Mich.App. 51, 475 N.W.2d 394 (1991).
The parties married in 1980 when plaintiff was twenty-one and defendant was sixteen. Defendant was pregnant with the couple's first child. A boy was born in 1981, and a girl was born in 1984.
In 1987, the couple lived in New Jersey, where plaintiff was stationed with the armed forces. The parties separated in November 1987 when the military transferred plaintiff to California. By agreement of the parties, the boy went with his father to California and the girl remained in New Jersey with her mother.
In February 1988, plaintiff sent the boy to live in Michigan with his parents. Plaintiff was discharged from the military in June 1988, and has since resided in Michigan with his parents and the son. Defendant moved to Michigan with the daughter in November 1988. Pursuant to the parties' agreement, the children spend every weekend together alternating with each parent. Summer vacations were similarly split on an alternating weekly basis.
Plaintiff filed for divorce in April, 1988. Because plaintiff's mother was the circuit court clerk, the case was assigned to a visiting district judge. Trial was held on June 19, 1990.
On July 23, 1990, the court issued an opinion granting plaintiff custody of both children. An order to that effect was entered on October 5, 1990. Custody of the girl was then transferred to plaintiff.
On June 18, 1991, this Court reversed that decision, finding that the trial court committed clear legal error on a major issue in not determining whether an established custodial environment existed and in not determining the preferences of the children. Bowers, at 53-56, 475 N.W.2d 394. The girl nevertheless remained in her father's custody.
During her September 1991 visitation, defendant retained physical custody of the girl. Plaintiff obtained an emergency order requiring the girl's return. However, he opted to allow the girl to remain in her mother's custody until the case was resolved.
The second trial was held on September 25, 1991. 1 On October 2, 1991, the trial court again issued an opinion awarding custody of both children to plaintiff. An order to that effect was entered on October 29, 1991, but was stayed pending appeal. Thus, custody of the girl has remained with defendant since September 1991.
Custody determinations are reviewed de novo. Baker v. Baker, 411 Mich. 567, 573, 309 N.W.2d 532 (1981). However, "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." M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8). Due deference "shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." MCR 2.613(C). However, a court may not immunize its findings from review by purporting to base them on pure credibility determinations in the face of other evidence. Beason v. Beason, 435 Mich. 791, 804, 460 N.W.2d 207 (1990).
Custody determinations are to be made in the best interests of the child. M.C.L. Sec. 722.27(1)(a); M.S.A. Sec. 25.312(7)(1)(a). However, a "court shall not ... change the established custodial environment of a child unless there is presented clear and convincing evidence that [such a change] is in the best interest of the child." M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c). If no established custodial environment exists, custody is determined upon a showing by a preponderance of the evidence that a particular placement is in the child's best interests. Baker, 411 Mich. at 579, 309 N.W.2d 532.
Defendant first argues that the trial court erred in finding that an established custodial environment was created between plaintiff and his daughter following the first trial. We agree, but also find that no "new" custodial environment came into being between defendant and her daughter after defendant regained physical custody. Defendant does not contest the existence of an established custodial environment between plaintiff and his son.
An established custodial environment exists "if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c). "The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered." M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c). The reasons why an established custodial environment exists are not important. Bowers, 190 Mich.App. at 54, 475 N.W.2d 394. Custody orders, by themselves, do not establish a custodial environment. Baker, 411 Mich. at 579, 309 N.W.2d 532. Rather, "[s]uch an environment depend[s] instead upon a custodial relationship of significant duration in which [the child] was provided the parental care, discipline, love, guidance and attention appropriate to his age and individual needs; an environment in both the physical and psychological sense in which relationship between the custodian and the child is marked by qualities of security, stability and permanence." Baker, at 579-580, 309 N.W.2d 532.
In Baker, the child lived in the marital home until his parents separated, whereupon he lived with his mother in Colorado for six weeks and then with his father and paternal grandparents in Michigan for seven weeks. Id., at 574, 580-581, 309 N.W.2d 532. In that context, the Supreme Court held that "[c]ertainly those repeated custodial changes and geographical moves, with the necessarily attendant emotional implications, destroyed the previously established custodial environment ... and precluded the establishment of a new one, at least until after the trial." Id. at 581, 309 N.W.2d 532. This was so despite substantial community ties and ties to close relatives. Id. at 580-582, 309 N.W.2d 532. We believe the same is true in this case.
Here, the girl clearly had an established custodial environment with her mother until custody was granted to the father following the first trial. Bowers, 190 Mich.App. at 54, 475 N.W.2d 394. Plaintiff argues that a new established custodial environment developed thereafter with him. However, we find that the expectation of permanence in that arrangement was destroyed in June 1991 when the trial court's decision was reversed on appeal and a new trial was ordered, and certainly when defendant regained physical custody in September 1991.
We do not hold that a custodial environment can never be established while a parent has custody during the pendency of an appeal. However, we feel that Baker stands for the proposition that, where there are repeated changes in physical custody and uncertainty created by an upcoming custody trial, a previously established custodial environment is destroyed and the establishment of a new one is precluded. See Baker, 411 Mich. at 580-582, 309 N.W.2d 532.
In this case, as in Baker, there were no expectations of permanence in the girl's placement with her mother because of the upcoming custody trial. The establishment of a new custodial environment was also precluded by the fact that the girl was only in her mother's custody for about a month before custody was again legally changed, albeit by an order that was immediately stayed. As in Baker, at the time of the second trial, there had been no "appreciable time" following the first court-ordered change in custody, during which the child looked to either parent "alone 'for guidance, discipline, the necessities of life and parental comfort' in a stable, settled atmosphere in order that an 'established custodial environment' ... could exist." Baker, at 582, 309 N.W.2d 532 (emphasis in original).
After carefully reviewing the record, we hold that the trial court's finding that the girl had established custodial environments with both of her parents was against the great weight of the evidence. Upon review de novo of the evidence, we find that neither parent had an established custodial environment with the minor girl.
The best interests of the child are "the sum total of the following factors":
(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 continuation of the educating and raising of the child in its 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...
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