Opinion
No. 333258
12-29-2016
MICHAEL ROYALE GAUTHIER, Plaintiff-Appellant, v. ELIZABETH GAUTHIER WHITLEY, Defendant-Appellee.
UNPUBLISHED Oakland Circuit Court
LC No. 2012-793379-UM Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order denying plaintiff's motion to modify physical custody of two of the parties' minor children. We affirm.
The parties in this case were divorced via a consent judgment of divorce entered in the state of Oregon on February 5, 2007. The judgment of divorce awarded defendant sole legal and physical custody of the parties' three minor children. In July 2011, the parties entered a stipulated supplemental judgment modifying custody of the minor children, to wit: plaintiff and defendant had joint legal custody of the eldest child with plaintiff having physical custody of him for one year, with a discussion regarding continuing custody to follow, and defendant had sole legal and physical custody of the parties' other two children. Also in 2011, plaintiff relocated with the parties' eldest child to Illinois and defendant relocated with the other two of the parties' minor children to Michigan. The orders pertinent to the children's custody were registered in Michigan. Thereafter, in 2014, a consent order was entered wherein the parties agreed to share joint legal custody of all three children, with plaintiff having primary physical custody of the eldest child and defendant having primary physical custody of the two other children. In May, 2016, plaintiff filed a motion to modify custody, essentially seeking primary physical custody of the parties' two minor children based on a purported change of circumstances. The trial court denied the motion and plaintiff now appeals that decision.
On appeal, plaintiff contends that the trial court's finding that proper cause or a change of circumstances did not exist to warrant modifying the existing custody order was against the great weight of the evidence. We disagree.
"This Court reviews a trial court's determination regarding whether a party has demonstrated proper cause or a change of circumstances under the great weight of the evidence standard." Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009), citing Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). The great weight standard requires that the trial court's factual findings be affirmed unless the evidence clearly preponderates in the opposite direction. Butler v Simmons-Butler, 308 Mich App 195, 200; 863 NW2d 677 (2014). "[A]ll 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 the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." MCL 722.28.
The seminal case on the issue of proper cause or a change of circumstances to modify a judgment or order pertaining to child custody as contemplated by MCL 722.27(1)(c) is Vodvarka, 259 Mich App 499. In Vodvarka, this Court recognized that if a trial court makes a determination that proper cause or a change of circumstances did not arise warranting a modification of an existing custody arrangement, the trial court ought not to conduct a child custody hearing. Id. at 508-509. The party moving to alter custody bears the burden, by a preponderance of the evidence, of demonstrating that proper cause or a change of circumstances exists before the trial court may even undertake an inquiry into whether an established custodial environment exists. Id. at 509. In Vodvarka, this Court set forth an "objective test for courts to apply in determining what constitutes proper cause or a change of circumstances." Id. at 510. Recognizing that the underlying purpose of MCL 722.27(1)(c) is to minimize unwarranted disruptions in a child's custody, and "[p]roviding a stable environment for children[,]" this Court set forth guidelines for determining if proper cause exists. Id. at 509, 511.
Therefore, we conclude that in context, proper cause means one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken.Likewise, to demonstrate a change of circumstances as set forth in MCL 722.27(1)(c), the moving party must establish that, "since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed." Vodvarka, 259 Mich App at 513. The Vodvarka Court cautioned that not just any change will amount to a change of circumstances, rather, the evidence must amount to more than normal life changes that occur during the child's life, and "there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child." Id. at 513-514.
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[T]o establish "proper cause" necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child's well-being. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Vodvarka, 259 Mich App at 511-512 (footnote omitted).]
Our close review of the record confirms that the trial court's conclusion that proper cause and a change of circumstances did not exist to warrant modifying custody was not against the great weight of the evidence. Corporan, 282 Mich App at 605. Plaintiff's motion was based upon allegations that since the last custody order of June 2014, the middle child's grades have fallen drastically, his friends appear to be engaged in drug use, sexual activity and racism, that physical and emotional bullying also have become issues among the child and his friends, and that defendant is unable to properly address these issues. During the October 2015 evidentiary hearing, however, plaintiff himself acknowledged that the parties' middle child, an eighth grader in the fall of 2015, had experienced declining grades since he entered middle school in sixth grade. Moreover, plaintiff himself noted in his motion seeking a change in custody that "[the child]'s dangerous behaviors have been going on throughout middle school" and have recently increased in their "intensity and severity[.]"
The middle child is no doubt experiencing serious academic challenges at school, namely significantly falling grades, as well as behavioral issues that have resulted in multiple suspensions. However, under the circumstances of this case, we are not not persuaded that the trial court's factual findings were against the great weight of the evidence, where it disagreed with plaintiff's contention that "the conditions surrounding custody of [the middle child], which have or could have a significant effect on the child's well-being, have materially changed." Vodvarka, 259 Mich App at 513. In other words, there is no indication in the record that defendant is not competent or willing to parent the child or to discipline him, and the record confirms that she has a close relationship with the child, that he confides in her, and that she has sought the assistance of both medical and school professionals when necessary to help and support the child. According to plaintiff's testimony at the evidentiary hearing, the child had been taking medications at defendant's behest for the four years before the October 2015 evidentiary hearing, presumably since 2011, and had been evaluated by medical professionals in the spring or summer of 2015. Further, defendant may have been surprised by plaintiff's allegations about the child's alleged behavior and activities at the hearing on plaintiff's motion to modify physical custody, because plaintiff did not make defendant aware of what was going on, a fact that justifiably raised the ire of the trial court. When plaintiff did share information at the hearing, defendant appeared to take the issues very seriously and wanted to obtain more information to help and protect the child. Contrary to plaintiff's assertion on appeal, the trial court's decision to not hold a child custody hearing was grounded in its recognition that a change of circumstances had not been demonstrated that warranted a hearing, rather than, as plaintiff asserts, any concern on the part of the trial court that the parties' acrimony and lack of communication had caused the child's struggles.
Published cases from this Court provide guidance concerning facts that will give rise to a change of circumstances pursuant to MCL 722.27(1)(c). In Shann v Shann, 293 Mich App 302, 304, 306; 809 NW2d 435 (2011), this Court concluded that where Child Protective Services (CPS) had removed the child from the custodial home, following allegations of sexual abuse by the child's stepfather against another child, and where the child's stepfather had threatened to kill himself and the entire family, sufficient evidence of a change in circumstances that warranted the trial court's consideration of a change in custody existed. Likewise, in Dailey v Kloenhamer, 291 Mich App 660, 666; 811 NW2d 501 (2011), this Court affirmed the trial court's determination that a change of circumstances had been established where the record yielded evidence "that the parties' [co-parenting] disagreements [had] escalated and expanded to topics that could have a significant effect on the child's well-being." The issues that the parties disagreed on pertained to important matters concerning the child's medication and serious medical treatment. Id. The parties' disagreements and resulting litigation regarding medical issues were causing delays in the child's medical treatment that could have had a detrimental impact on the child's well-being. Id. While the record in this case does confirm that acrimony and discord exist between plaintiff and defendant, it certainly does not rise to the level of the parties in Dailey. In sum, the record evidence, rather than preponderating in the opposite direction, supports the trial court's conclusion that a change of circumstances or proper cause had not been demonstrated to the extent that the trial court ought to have reviewed the statutory best interest factors. Accordingly, the trial court did not err in declining to hold a best interest hearing. Vodvarka, 259 Mich App at 508 (if a proper cause of a change of circumstances is not established, the trial court "is precluded" from holding a child custody hearing).
Plaintiff also argues that the trial court abused its discretion in confiscating the child's Ipad and cellular telephone, and ordering the child to undergo counselling. We disagree.
MCL 722.27 provides, in pertinent part, as follows:
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
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(e) Take any other action considered to be necessary in a particular child custody dispute.
The trial court saw the need to order that the child not be permitted access to his cellular telephone where the record confirmed that the child had been reprimanded and disciplined on more than one occasion at school for improper use of his cellular telephone, and where plaintiff made serious allegations that the child's Ipad, computer and cellular telephone were the conduit for the alleged potentially risky behaviors with his peer group. This Court must affirm the trial court's orders on appeal unless the trial court made a "palpable abuse of discretion" or a clear legal error on a major issue. MCL 722.28. A trial court abuses its discretion in the context of a child custody dispute when " 'the result [is] so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.' " Maier v Maier, 311 Mich App 218, 222; 874 NW2d 725 (2015), quoting Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). Under the circumstances of this case, where the record reflected that the child was struggling with his behavior and academics at school and allegedly engaging in potentially risky behaviors with his peers, it was not an abuse of discretion for the trial court to prohibit the child from using his electronic devices or to undergo counseling. The trial court no doubt exercised its authority to take action it deemed necessary to protect the child's best interests, MCL 722.27(1)(e), and plaintiff has not demonstrated that the trial court committed an error of law or abused its discretion in doing so.
Plaintiff also argues that this Court should order that this case be re-assigned to another trial judge. MCR 2.003(C)(1) is the governing court rule on the issue of judicial bias, and provides, in pertinent part, as follows:
(1) Disqualification of a judge is warranted for reasons that include, but are not limited to, the following:
(a) The judge is biased or prejudiced for or against a party or attorney.
(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, 556 US 868; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.
To properly raise a claim of judicial bias, plaintiff was required to raise the issue of the trial court's alleged disqualification in the trial court by making a motion. MCR 2.003(B). To make a showing of judicial bias, a party "must demonstrate that the trial court 'display[ed] a deep-seated favoritism or antagonism that would make fair judgment impossible.' " Eldred v Ziny, 246 Mich App 142, 152-153; 631 NW2d 748 (2001), quoting Cain v Dep't of Corrections, 451 Mich 470, 496; 548 NW2d 210 (1996). See also Berger v Berger, 277 Mich App 700, 714; 747 NW2d 336 (2008) (also recognizing the applicability of the test articulated in Eldred in a domestic relations case).
Our thorough review of the lower court file, both during the hearing on plaintiff's motion seeking a modification of custody, as well as during the October 2015 evidentiary hearing where the trial court evaluated the issue of modifying parenting time, did not yield any indication that the trial court was in any way biased against plaintiff. Accordingly, assignment to a different trial court judge is not necessary.
Affirmed.
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause