Foskett v. Foskett

• Decision Date: 19 October 2001
• Docket Number: Docket No. 230222.
• Citation: 247 Mich. App. 1,634 N.W.2d 363
• Parties: Sonya FOSKETT a/k/a Sonya Decoe, Plaintiff-Appellant, v. Louis FOSKETT, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

634 N.W.2d 363

247 Mich. App. 1

Sonya FOSKETT a/k/a Sonya Decoe, Plaintiff-Appellant, v. Louis FOSKETT, Defendant-Appellee.

Docket No. 230222.

Court of Appeals of Michigan.

Submitted February 5, 2001, at Detroit.

Decided July 24, 2001, at 9:00 a.m.

Released for Publication October 19, 2001.

Daniel D. Bremer, Burton, for the plaintiff.

Before HOOD, P.J., and DOCTOROFF and K.F. KELLY, JJ.

KIRSTEN FRANK KELLY, J.

Plaintiff appeals as of right from an order changing physical custody of the parties' minor children to defendant. We reverse and remand.

I. Basic Facts and Procedural History

The parties were divorced in 1996. The judgment of divorce granted joint legal custody of the three minor children to both parties, with plaintiff retaining physical custody. Pursuant to the judgment, defendant had parenting time from Tuesday evening until Thursday evening each week, as well as certain periods in the summer. This parenting time schedule was orally modified to accommodate changes in the parties' schedules. Although the dates and times of the parenting schedule changed by mutual agreement of the parties, the amount of time defendant spent with the children remained essentially unaffected. A review of the record indicates that despite their personal differences, these parties were able to work together for the greater good of their children. Both parents are actively involved with the children's schooling, extracurricular activities, and meeting their material and medical needs. Until the instant litigation, both parties cooperated, actively facilitating and encouraging a close and continuing relationship between the children and the other parent.¹

On April 4, 2000, plaintiff filed a petition with the family division of the circuit court seeking (1) to reduce the oral parenting time agreement to an order, (2) a review of the child support obligation of defendant, and (3) to clarify which party could claim the children as dependents for tax purposes. In response, defendant filed a petition for a change of custody.

On May 18, 2000, a referee held a hearing on both petitions. At the hearing, the referee found that plaintiff had an established custodial environment with the children and therefore held defendant to the more exacting clear and convincing evidentiary standard. After the hearing, the referee concluded that defendant failed to meet his burden of proof and recommended that plaintiff retain physical custody and defendant have liberal parenting time consistent with the parties' respective schedules.

Defendant sought review de novo of the referee's recommendation and the court conducted a short evidentiary hearing during which defendant argued that plaintiff was verbally abusive. During the evidentiary hearing, plaintiff, together with all the witnesses called by defendant to testify at the hearing, denied any and all allegations of physical or verbal abuse on plaintiff's part.

After the conclusion of testimony, the court arranged to interview the children in camera.² The court allowed the parties the opportunity to present questions that it would ask the children and indicated that it would also ask the children about plaintiff's drinking habits, alleged verbal abuse, the frequency of the presence of the police at the home, as well as the source of clothing for the children. The trial court did not make any record whatsoever, by transcript or judicial summary, relative to the substance of the in camera interview with the three minor children. Accordingly, none is available for our review. After the evidentiary hearing and after the trial court conducted its in camera interview with the children, the court issued a written opinion granting defendant's request for a change of custody. Comparing the evidence on the record and the trial court's written opinion, it is evident to this Court that the trial court substantially relied on the unrecorded information garnered from the in camera interview with the children to make its ultimate decision. Plaintiff appeals as of right. We reverse and remand to the trial court for further proceedings consistent with this opinion.

II. Established Custodial Environment

There are three different standards of review applicable to child custody cases. The clear legal error standard applies where the trial court errs in its choice, interpretation, or application of the existing law. LaFleche v. Ybarra, 242 Mich.App. 692, 695, 619 N.W.2d 738 (2000).³ Findings of fact are reviewed pursuant to the great weight of the evidence standard. In accord with that standard, this court will sustain the trial court's factual findings unless "the evidence clearly preponderates in the opposite direction." Id. Discretionary rulings are reviewed for an abuse of discretion, including a trial court's determination on the issue of custody. Id.

MCL 722.27(1)(c) provides for modification of a custody order on "proper cause shown" or "[a] change of circumstances." Therefore, when confronted with a petition to change custody, a trial court must first determine the appropriate burden of proof to place on the party seeking the change. To discern the proper burden, the trial court's initial inquiry is whether an established custodial environment exists. LaFleche, supra at 695-696, 619 N.W.2d 738. MCL 722.27(1)(c) provides, in relevant part:

The 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. The custodial environment of a child is established 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. 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.

Ever mindful that our Legislature's intent underlying the Child Custody Act was 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," whether a custodial environment has been established is an intense factual inquiry. Baker v. Baker, 411 Mich. 567, 577, 309 N.W.2d 532 (1981) (emphasis added); see also Ireland v. Smith, 214 Mich. App. 235, 542 N.W.2d 344 (1995).

This pivotal legislative mandate is only served when trial courts apply the correct evidentiary standard to issues relating to child custody. If the trial court finds that an established custodial environment exists, then the trial court can change custody only if the party bearing the burden presents clear and convincing evidence that the change serves the best interests of the child. Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183 (2000) (citing Rummelt v. Anderson, 196 Mich. App. 491, 494, 493 N.W.2d 434 [1992]). This higher standard also applies when there is an established custodial environment with both parents. Jack v. Jack, 239 Mich.App. 668, 610 N.W.2d 231 (2000).⁴ On the contrary, if the court finds that no established custodial environment exists, then the court may change custody if the party bearing the burden proves by a preponderance of the evidence that the change serves the child's best interests. LaFleche, supra (citing Mann v. Mann, 190 Mich.App. 526, 531, 476 N.W.2d 439 [1991]).

In the case at bar, the trial court found that no custodial environment existed, stating:

It is the court's impression... that because of problems in [the] mother's home that the children have looked to the father for guidance, discipline, and necessities of life with the same frequency as they looked to the mother for such nurture and support. Therefore, the court finds that by the conduct of the parties, no established custodial environment exists. Therefore the burden of proof for [the] father is by a preponderance of the evidence, not by clear and convincing evidence to prove that the best interests of the children are served by a change of custody. [Emphasis added.]

First, we note that by its own admission, the trial court merely formed an "impression" regarding the alleged problems in the mother's home. This Court is unable to discern from whence the trial court's "impression" came. A review of the record establishes nothing more than allegations of verbal and physical abuse within the mother's home with the exception of one isolated incident. The record is clear that on one occasion, plaintiff and her boyfriend apparently had a verbal altercation to which the police responded. However, we note further that despite police involvement, no charges relative to this incident were instituted.

Second, the trial court's opinion is internally inconsistent. The trial court found that the children looked to both their mother and father, with the same frequency, for guidance, discipline, and the necessities of life, yet curiously declined to find an established custodial environment in either household. The trial court did not further expound on or articulate its reasons for reaching this particular conclusion.

Because the existence of a custodial environment is a factual inquiry, the great weight of the evidence standard applies. The appropriate inquiry, therefore, is whether the evidence on which the trial court determined that neither parent established a custodial environment "clearly preponderates in the opposite direction." Ireland, supraat 242, 542 N.W.2d 344, thus rendering the trial court's ultimate decision regarding custody an abuse of discretion. LaFleche, supra at 695, 619 N.W.2d 738. We find that it does.

In the case sub judice, a review de novo of the record amply supports the existence of a custodial environment with both parents. Both parties contributed to the financial needs of the children and...