Mogle v. Scriver

• Decision Date: 09 August 2000
• Docket Number: Docket No. 221194.
• Citation: 614 N.W.2d 696,241 Mich. App. 192
• Parties: Kara MOGLE a/k/a Kara Vandussen, Plaintiff-Appellee, v. Andrew SCRIVER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

614 N.W.2d 696

241 Mich. App. 192

Kara MOGLE a/k/a Kara Vandussen, Plaintiff-Appellee, v. Andrew SCRIVER, Defendant-Appellant.

Docket No. 221194.

Court of Appeals of Michigan.

Submitted March 15, 2000, at Lansing.

Decided May 16, 2000, at 9:20 a.m.

Released for Publication August 9, 2000.

Loomis, Ewert, Parsley, Davis & Gotting, P.C. (by Catherine A. Jacobs and Kelly K. Reed), Lansing, for the plaintiff.

Lynch, Gallagher, Lynch & Martineau (by Jennifer M. Galloway), Mt. Pleasant, for the defendant.

Before: BANDSTRA, C.J., and MARK J. CAVANAGH and ZAHRA, JJ.

BANDSTRA, C.J.

Defendant Andrew Scriver appeals as of right from a family court order awarding plaintiff primary physical custody of Kaylah Scriver, the parties' daughter, and changing Kaylah's state of domicile from Michigan to Virginia. We find no error in the trial court's decision and affirm.

Plaintiff and defendant were not married at the time of Kaylah's birth, but dated each other intermittently during their high school years and for approximately 1 1/2 years before Kaylah was born. Defendant ended the relationship three days after he learned of plaintiff's pregnancy because he did not want "to feel trapped." Both parties were twenty years old when Kaylah was born, and each had taken some college courses.

Kaylah was born with serious health problems, including cerebral palsy, frequent seizures, and von Willebrand's disease, an incurable condition that affects the ability of a person's blood to clot properly. A medical doctor testified that Kaylah's cerebral palsy affected the right side of her body and prohibited her from walking and manipulating the fingers on her left hand. He described Kaylah as a "high needs" child who would need to undergo occupational therapy, physical therapy, and speech therapy until she reached adulthood.

At the time Kaylah was born, plaintiff was employed as a waitress and shared an apartment with a roommate, but she soon moved in with her parents to save on living expenses. Plaintiff testified that, after Kaylah was born, defendant visited her only one day a week. However, after Kaylah's hip surgery, when she was almost two years old, the frequency of his visits increased. Over time, the parties arranged a schedule whereby defendant would take Kaylah to his house two nights a week and to his parents' house every Friday night. The lower court record reflects that both parties had hectic and unpredictable work schedules, that each shared responsibility for taking Kaylah to her various appointments, and that they received help from their respective parents.

Plaintiff filed the instant action on May 2, 1997, in anticipation of her marriage to Mark Mogle. Plaintiff married Mogle on April 18, 1998, two days before the commencement of trial. At time of trial, Mogle was enlisted in the United States Air Force and was assigned to Langley Air Force Base, near Hampton, Virginia. Plaintiff sought an order awarding her custody of Kaylah and allowing her to move Kaylah's domicile to Virginia. Defendant filed a counter complaint in which he requested sole custody of Kaylah. The trial court found: (1) a custodial environment was established only with plaintiff; (2) many of the factors it was required to consider in making a determination regarding custody weighed equally with respect to both parties; (3) plaintiff's marriage to Mogle allowed her to better provide for Kaylah's food, clothing, and medical needs because plaintiff planned to assume the role of a stay-at-home mother; (4) plaintiff would be able to better provide a permanent family unit for Kaylah; and (5) plaintiff's marriage to Mogle would allow Kaylah to grow up in a traditional nuclear family, which the court reasoned should weigh in plaintiff's favor. The court awarded primary physical custody of Kaylah to plaintiff and authorized a change in Kaylah's domicile to Virginia. The court granted parenting time to defendant that generally allowed him to have Kaylah for two weeks every other month.

We review the trial court's findings of fact to determine whether they are against the great weight of the evidence, the court's discretionary rulings for a palpable abuse of discretion, and questions of law for clear legal error. MCL 722.28; MSA 25.312(8); McCain v. McCain, 229 Mich.App. 123, 125, 580 N.W.2d 485 (1998). Under the "great weight of the evidence" standard, a trial court's findings should be affirmed unless the evidence clearly preponderates in the opposite direction.

Fletcher v. Fletcher, 447 Mich. 871, 879 (Brickley, J.), 900 (Griffin, J.), 526 N.W.2d 889 (1994); Ireland v. Smith, 214 Mich.App. 235, 242, 542 N.W.2d 344 (1995) (Ireland I). The abuse of discretion standard applies to the trial court's discretionary rulings; to whom custody is granted is such a discretionary disposition ruling. Fletcher, supra at 879-880 (Brickley, J.), 900 (Griffin, J.), 526 N.W.2d 889; Fletcher v. Fletcher, 229 Mich.App. 19, 24, 581 N.W.2d 11 (1998).

Defendant first argues that the trial court's factual finding that Kaylah had an established custodial environment with plaintiff was against the great weight of the evidence. Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding the child's best interests. Overall v. Overall, 203 Mich.App. 450, 455, 512 N.W.2d 851 (1994).

MCL 722.27(1)(c); MSA 25.312(7)(1)(c) states 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.

Defendant argues that the trial court should have found that an established custodial environment existed with respect to both parties, not just with plaintiff. An established custodial environment is one of significant duration "in which the relationship between the custodian and child is marked by qualities of security, stability and permanence." Baker v. Baker, 411 Mich. 567, 579-580, 309 N.W.2d 532 (1981); DeVries v. DeVries, 163 Mich.App. 266, 271, 413 N.W.2d 764 (1987). An established custodial environment, however, need not be limited to one household; it can exist in more than one home. Duperon v. Duperon, 175 Mich.App. 77, 80, 437 N.W.2d 318 (1989).

We conclude that the trial court did not err in determining that Kaylah had an established custodial environment with plaintiff only. Trial testimony revealed that defendant became involved in Kaylah's life and helped to provide for her care. The trial court noted that the parties' sacrifice and work "reflect great credit to all concerned." Nevertheless, Kaylah lived with plaintiff almost exclusively for the first two years of her life, and thereafter she continued to spend the majority of her days and nights with plaintiff. The testimony at trial did not clearly preponderate in defendant's direction, and the trial court did not err in finding that an established custodial environment existed with plaintiff only.

Defendant also argues that the trial court erred in its analysis of the criteria for determining Kaylah's best interests, contained in M.C.L. § 722.23; MSA 25.312(3). He first contends that the trial court impermissibly determined that plaintiff's recent marriage was an additional factor that weighed in plaintiff's favor. MCL § 722.23; MSA 25.312(3)(l) allows the trial court to consider anything that it deems relevant to the custody dispute. The trial court stated the following with respect to this factor:

In the long run it is—to me, it is in this child's best interests to live with a traditional nuclear family if that option is available to her. While the grandparents are still maintaining diligent efforts to care for this child, time takes a toll on us all and, as time goes on, it's going to be more and more difficult for them to be there for her, and I believe the best environment is that provided by a husband and wife living together.

Defendant cites Ireland v. Smith, 451 Mich. 457, 547 N.W.2d 686 (1996) (Ireland II), in support of his argument. In Ireland II, the Supreme Court determined that, in making their "best interests" determination, trial courts must not consider the "acceptability" of the homes to be established by each parent, but instead must concentrate on the "permanence" or "stability" of the family environments offered by the contesting parents. Id. at 464-465, 547 N.W.2d 686. Ireland II involved two unmarried parents, not one who remained single and another who was marrying and thus presenting the prospects of a two-parent family such as in this case. Considering the two single-parent situations before it, the Ireland II Court could "discern no significant difference between the stability of the settings proposed by the two parties." Id. at 465, 547 N.W.2d 686. While recognizing that "in some respects, Mr. Smith's proposed custodial home appears more stable" the Court also indicated that his single status made a finding of long-term stability problematic:

However, that stability may be chimerical. He will not live with his parents forever, and until the likely path of his life becomes more apparent, it is difficult to determine accurately how stable a custodial home he can offer. [Id. at 466, 547 N.W.2d 686.]

Considering the stated reasoning of the trial court in the present case, we do not conclude that it is in contravention of Ireland II. Notwithstanding defendant's characterization, the trial court did not impermissibly conclude...