Duncan v. O'Brien
| Docket Number | 356922 |
| Decision Date | 16 December 2021 |
| Parties | TIARA NIKOLE DUNCAN, Plaintiff-Appellee, v. DAVID MARK O'BRIEN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Muskegon Circuit Court LC No. 19-004243-DM
Before: Gadola, P.J., and Swartzle and Cameron, JJ.
In this divorce action, defendant appeals the trial court's judgment of divorce. Defendant argues that the trial court erred by granting plaintiff sole physical custody of the minor child and not granting him an equitable portion of the marital home. We affirm.
Plaintiff and defendant had a brief romantic relationship that culminated in the birth of their minor child in June 2006. Their relationship ended soon after that. Plaintiff was awarded sole physical custody of the child, and the parties shared joint legal custody. Defendant was also ordered to pay child support. In December 2014 plaintiff purchased a home and defendant moved in with plaintiff and her family in 2016 defendant paid plaintiff rent at that time. Plaintiff and defendant rekindled their romantic relationship shortly afterwards and were married in September 2017.
After plaintiff and defendant were married, defendant made house repairs that turned out to be inadequate. Defendant deposited paychecks that he received into a joint checking account that plaintiff used to pay for some of their household expenses. These payments, however, contributed to less than half of the household expenses before considering the mortgage payments. Although not regularly employed during the marriage, defendant did deposit paychecks that he received into a joint checking account that plaintiff used to pay for some of their household expenses. Defendant and plaintiff began having verbal disputes; plaintiff asked defendant to leave the home. Defendant lived away from the home for at least six months; when he returned, defendant stopped depositing any funds into the joint checking account. Plaintiff eventually filed for divorce. After filing for divorce, plaintiff discovered text messages between defendant and another woman that indicated a sexual relationship between the two of them.
The trial court conducted a trial and determined that plaintiff would have sole physical custody of the child, the parties would share joint legal custody of the child, and defendant was not entitled to any portion of the house's appreciated value while the parties were married. This appeal followed.
First, defendant argues that the trial court erred by awarding plaintiff sole physical custody of the minor child. "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. This Court defers to the trial court's judgment with respect to witness credibility. Berger v Berger, 277 Mich.App. 700, 705; 747 N.W.2d 336 (2008).
Defendant did not argue in the trial court that the trial court erred by awarding plaintiff sole physical custody without finding a change of circumstance or proper cause to do so. Defendant also failed to argue in the trial court that the trial court erred by failing to articulate the proper standard for determining the child's best interests. Thus, these issues are unpreserved. See Peterman v Dep't of Natural Resources, 446 Mich. 177, 183; 521 N.W.2d 499 (1994). As a general rule, "a failure to timely raise an issue waives review of that issue on appeal." Walters v Nadell, 481Mich 377, 387; 751 N.W.2d 431 (2008) (quotation marks and citation omitted). This Court, however, has applied the plain error standard to unpreserved claims of error raised in child custody cases. Demski v Petlick, 309 Mich.App. 404, 441; 873 N.W.2d 596 (2015). Given this, we will review these unpreserved issues for plain error. Id.
"To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Kern v Blethen-Coluni, 240 Mich.App. 333, 335-336; 612 N.W.2d 838 (2000) (quotation marks omitted), citing People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Lawrence v Mich. Unemployment Ins Agency, 320 Mich.App. 422, 443; 906 N.W.2d 482(2017) (alteration in original, quotation marks and citation omitted). The appellant bears the burden of persuasion with respect to prejudice. See Carines, 460 Mich. at 763.
We address defendant's unpreserved issues first. Defendant argues that the trial court was required to make a finding that there was proper cause or a change in circumstance to change the existing custody arrangement between the parties from before their divorce. The custody arrangement that was ordered before the parties' marriage established that plaintiff would have sole physical custody of the minor child and the parties would share joint legal custody. In the judgment of divorce, the trial court awarded plaintiff sole physical custody and awarded both parties joint legal custody. Defendant did not present any evidence to suggest that he challenged the preexisting custody order or that it no longer continued to exist during the marriage. Additionally, defendant did not address whether the judgment of divorce presented a change in custody that was different from the custody arrangement before the marriage, and he also did not address whether this alleged error prejudiced his substantial rights and affected the outcome of the proceedings. "An appellant may not merely announce a position then leave it to this Court to discover and rationalize the basis for the appellant's claims; nor may an appellant give an issue only cursory treatment with little or no citation of authority." Cheesman v Williams, 311 Mich.App. 147, 161; 874 N.W.2d 385 (2015). Consequently, defendant abandoned this argument on appeal. Furthermore, the record does not support that this alleged error caused prejudice requiring reversal.
Defendant next argues that the trial court erred by failing to state the clear and convincing evidence standard during its determination regarding custody of the minor child. Defendant is correct that the trial court did not articulate this standard in its ruling. The trial court, however, determined that an established custodial environment existed with both parties. Accordingly, the trial court could not modify any established custodial environment without finding that such a change was in the child's best interests by clear and convincing evidence. See Griffin v Griffin, 323 Mich.App. 110, 119-120; 916 N.W.2d 292 (2018). This Court presumes that the trial court knows the law. In re Costs & Attorney Fees, 250 Mich.App. 89, 101; 645 N.W.2d 697 (2002). Additionally, the trial court did not state that it was relying on a different, incorrect, standard when making that determination. Indeed, defendant argues that the trial court failed to articulate the standard it used, not that it actually used an incorrect standard. Defendant has not established how this error prejudiced him. He also failed to make any argument, from any cited authority, that this error was one requiring reversal. Thus, defendant's argument is abandoned. See Cheesman, 311 Mich.App. at 161. Consequently, the trial court's failure to state that its findings were supported by clear and convincing evidence did not amount to error requiring reversal.
The best-interest factors in MCL 722.23 are:
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