Mitchell v. Mitchell
| Decision Date | 13 March 2012 |
| Docket Number | No. 306559,306559 |
| Parties | JOHN ELLWOOD MITCHELL, Plaintiff-Appellee, v. KATE ANN MITCHELL, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Newaygo Circuit Court
Before: METER, P.J., and FITZGERALD and MARKEY, JJ.
Defendant appeals by right the trial court's October 3, 2011 order granting a modification of the parties' judgment of divorce 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 transferring physical custody to plaintiff. Defendant appealed the trial court's temporary transfer of the children to plaintiff, and this Court vacated the trial court's order and remanded for proceedings consistent with the Child Custody Act. Mitchell v Mitchell ("Mitchell I"), unpublished opinion per curiam of the Court of Appeals, issued September 15, 2011 (Docket No. 303257).
Before this Court released its opinion in Mitchell I, plaintiff moved to have the custody arrangement modified 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 ondefendant'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 in circumstance 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 an 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 NW2d 480 (2010). The first step toward modifying a custody award is to show proper cause or a change of circumstances such that the modification will be in the child's best interests. MCL 722.27(1)(c); Parent v Parent, 282 Mich App 152, 154; 762 NW2d 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 NW2d 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 NW2d 847 (2003). Appropriate grounds must include at least one of the twelve statutory best interest factors and concern matters that have or could have a significant impact on the child's life. Id. Only after a moving party has established proper cause or a change in circumstances may the trial court reevaluate the statutory best interest factors. Id.
Here, the trial court expressly stated on the record the reasons it found to satisfy the proper cause standard. 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 circumstance 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. 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. 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 impact on the children's lives. Vodvarka, 259 Mich App at 512.
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 erred in not following the procedure outlined in MCL 722.27(1), i.e., by not considering the statutory best interests 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 Courtremanded 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 change 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.
Next, defendant argues that the trial court erred in modifying custody as 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 the great weight of the evidence standard the trial court's determination will be affirmed unless the evidence clearly prevails in the other direction. Pierron, 486 Mich at 85. Before modifying a custody award the trial court must determine if 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.
Once the trial court determines there is proper cause or a change in circumstance 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 interests of the child. MCL 722.27(1)(c). Thus, if the trial court determines 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. The trial court in determining whether the moving party satisfies this burden must consider all the statutory best interest factors as set out in MCL 722.23. Pierron, 486 Mich at 92-93; Rittershaus v Rittershaus, 273 Mich App 462, 475; 730 NW2d 262 (2007). Here, 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 NW2d 47 (2008).
The trial court detailed on the record the evidence it considered for each of the statutory best interests factors and which parent the trial court found to be better suited in regard to each factor. In addition to these specific findings, the trial court also made general findings regarding the case. The trial court found defendant at fault for failing to facilitate plaintiff's communication with the children via Skype, as the court had previously ordered. The trial court also found that defendant 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 continued to refuse to disclose information on Smith for a background check. Finally, the trial court found that allegations of plaintiff touching his daughter were unfounded and that it was likely defendant fabricated the allegations.
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 also indicated 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,...
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