Opinion
No. 337809
11-21-2017
CANDICE JO JOSLYN, Plaintiff-Appellant, v. JON ARTHUR SCOTT, Defendant-Appellee.
UNPUBLISHED Muskegon Circuit Court
LC No. 16-000884-DM Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Plaintiff, Candice Jo Joslyn, appeals as of right the trial court's judgment of divorce awarding the parties joint-physical and joint-legal custody of their minor child, AS. We affirm.
I. BACKGROUND
The parties began dating in 2011. On June 8, 2012, their daughter, AS, was born. On April 28, 2014, the parties married. The parties lived together until their separation in December 2015. After their separation, the parties agreed to a situation they called "bird nesting," wherein each party would live in the marital home for two to three days and then alternate with the other party, allowing AS to remain living in the martial home. That arrangement ceased when plaintiff retained an attorney and filed for divorce on February 22, 2016.
In March 2016, the Friend of the Court rendered its conciliation order regarding custody, which was approved by the trial court. The order granted sole-legal and primary-physical custody of AS to plaintiff and granted parenting time to defendant on alternating weekends at defendant's mother's home. Although both parties objected to this order, the objection hearings exceeded their allotted time, and the trial court decided to go forward with the divorce trial without rendering a conclusion as to the parties' objections concerning the conciliation order. At the conclusion of the divorce trial, the trial court granted divorce and ordered that the parties would share joint legal and joint physical custody of AS on a weekly schedule.
II. ANALYSIS
On appeal, plaintiff argues that she is entitled to remand because the trial court failed to determine whether an established custodial environment existed as to AS before the trial court made its best-interest analysis and custody determination. Plaintiff argues that the trial court's assertion, three weeks later, that an established custodial environment had existed as to both parties, was not sufficient to meet statutory requirements, and plaintiff further argues that the trial court erred in several respects in its findings under the best-interest factors. Though we agree that the trial court erred in some respects, ultimately we affirm the trial court's custody determination.
"All orders and judgments of the circuit court regarding child custody and parenting time are to be affirmed unless the trial court 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." Demski v Petlick, 309 Mich App 404, 444; 873 NW2d 596 (2015); MCL 722.28. Accordingly, a trial court's findings of fact, such as whether an established custodial environment exists, "should be affirmed unless the evidence clearly preponderates in the opposite direction." Thompson v Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004) (internal quotation notation and citation omitted). An abuse of discretion occurs in this context where "the trial court's decision is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Demski, 309 Mich App at 445 (internal quotation notation and citation omitted). A trial court clearly errs when it incorrectly interprets or applies the law. Thompson, 261 Mich App at 358.
Pursuant to the Child Custody Act, MCL 722.21 et seq., a trial court may grant custody of a minor child to one or more parents and provide for support payments for that minor child during a divorce proceeding. MCL 722.27(1). In so doing, the trial court must consider the best interests of the child, outlined in the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.The trial court must consider each factor and "explicitly state its findings and conclusions regarding each." Bowers v Bowers (After Remand), 198 Mich App 320, 328; 497 NW2d 602 (1993). Although the trial court must state its findings and conclusions as to each factor, the trial court is not required to comment on every matter in evidence, and terse, definite statements are sufficient. Id.; MCR 2.517(A)(2) ("Brief, definite, and pertinent findings and conclusions on the contested matters are sufficient, without overelaboration of detail or particularization of facts.").
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute. [MCL 722.23; see also MCL 722.27(1) (stating that the trial court may grant custody for the best interests of the minor child).]
Before performing its best-interest analysis and enacting a new custody order, however, the trial court must first determine whether an established custodial environment exists. Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). MCL 722.27(1)(c) provides that "[t]he 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." This Court has also defined an established custodial environment as an environment
of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence. [Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008).]
An established custodial environment may exist in more than one home. Mogle, 241 Mich App at 197-198. And although a custodial environment is not created by virtue of a custody order alone, Bowers, 198 Mich App at 325, "[a] custodial environment can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order," Berger, 277 Mich App at 707.
If an established custodial environment exists, a trial court may not issue a new custody order changing the minor child's environment unless "there is presented clear and convincing evidence that it is in the best interest of the child." MCL 722.27(1)(c). If no established custodial environment exists, a trial court may issue a new order upon a showing by a preponderance of the evidence that a particular placement is in the child's best interests. Bowers, 198 Mich App at 324. "Where a trial court fails to make a finding regarding the existence of a custodial environment, this Court will remand for a finding unless there is sufficient information in the record for this Court to make its own determination of this issue by de novo review." Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000) (internal quotation marks and citation omitted).
The Trial Court's Failure to Determine AS's Established Custodial Environment Does Not Require Remand. Here, after the conclusion of trial, the trial court held that the parties would share joint legal and joint physical custody of AS. In doing so, the trial court conducted a review of the best-interest factors under MCL 722.23 but failed to make any determination as to whether an established custodial environment existed. At a hearing three weeks later, plaintiff's counsel brought this failure to the trial court's attention. The colloquy between plaintiff's counsel and the trial court at the hearing indicates that there was some confusion about the applicable legal standards.
The trial court's statements during the hearing indicate that the trial court may have conflated the issue of a custody determination—of which there was only a temporary, non-prejudicial order by the FOC—and the issue of an established custodial environment. At the conclusion of the divorce trial, even though it was the initial custody determination, the trial court was still obligated to determine whether an established custodial environment existed. MCL 722.27(1)(c) ("The court shall not . . . 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.") (emphasis added); Thompson, 261 Mich App at 361-362; Mogle, 241 Mich App at 197. The trial court clearly erred when it made its custody determination without first determining whether an established custodial environment existed. See MCL 722.27(1)(c); Mogle, 241 Mich App at 197. We decline to remand this case, however, because there is sufficient information present in the record for this Court to make our own determination of the issue. See Jack, 239 Mich App at 670.
Notably, because the trial court's order was not a change or modification to an existing custody order—as the conciliation order was temporary and non-prejudicial—neither party was required to prove proper cause or a change in circumstances to warrant reconsideration of the custody decision. See Thompson, 261 Mich App at 362. --------
Before appeal, the trial court itself indicated that it found that an established custodial environment existed as to both parties. And although the trial court's findings as to this determination did not include findings during the period custody was regulated under the temporary order—March 2016 to January 2017—the record is sufficient to support a finding that AS's established custodial environment remained with both parents during this time frame.
The record reflects that, from March 2016 to January 2017, plaintiff was AS's primary caretaker, with defendant having parenting time on alternating weekends. Plaintiff's greater time schedule with AS does not by itself create an established custodial environment with plaintiff. See Bowers (After Remand), 198 Mich App at 325. Nonetheless, during this time period, plaintiff was responsible for a majority of AS's daily care and education. Accordingly, AS undoubtedly "look[ed] to [plaintiff] . . . for guidance, discipline, the necessities of life, and parental comfort," and had an established custodial environment with plaintiff. MCL 722.27(1)(c).
That AS had an established custodial environment with plaintiff does not, however, preclude AS from having an established custodial environment with defendant. See Mogle, 241 Mich App at 197-198. Although defendant did not see AS as frequently after the temporary order, defendant testified that AS was his priority in life and that they shared a loving relationship. Defendant further testified that he provided for AS's basic needs, supported AS's religious education, and participated in various activities with AS. Defendant's mother testified that defendant was a great father who took responsibility for AS's care, including bathing AS, doing her hair, and providing her meals. Defendant also played with AS, took AS for bicycle rides, and taught AS how to play sports. According to defendant's mother, although defendant often doted on AS, he also set boundaries for her and corrected her behavior when necessary. Many of defendant's other relatives and friends also testified that defendant and AS shared a loving relationship and that AS looked forward to spending time with defendant. Even plaintiff testified that defendant and AS were affectionate with each other. This testimony demonstrates that defendant continued to provide care, discipline, love, guidance, and attention to AS despite their decreased time spent together. Accordingly, the trial court's belated finding that an established custodial environment existed as to both parents was not against the great weight of the evidence. See Berger, 277 Mich App at 706.
Ultimately, although the trial court erred in failing to determine whether an established custodial environment existed before making a custody determination, this is not an error entitling plaintiff to remand because the record supports the trial court's belated assertion that an established custodial environment existed as to both parties. See Jack, 239 Mich App at 670. Accordingly, for plaintiff to have been granted sole physical and legal custody of AS, plaintiff had to demonstrate by clear and convincing evidence that changing AS's custodial environment to plaintiff alone was in AS's best interests. See MCL 722.27(1)(c). For AS to remain in the current shared custodial environment, the trial court needed only to find by a preponderance of the evidence that this arrangement was in AS's best interests. See MCL 722.27(1)(c). Therefore, to the extent that plaintiff argues that the trial court erred in not requiring defendant to demonstrate by clear and convincing evidence that joint custody was in AS's best interests, plaintiff's argument is meritless.
The Trial Court's Custody Determination Was Not a Palpable Abuse of Discretion. Next, we address whether the trial court properly supported its findings and conclusions during its best-interest analysis and whether the trial court's conclusions as to each factor were against the great weight of the evidence. First, plaintiff's contention that the trial court's findings and conclusions as to five best-interest factors were lacking in necessary detail is meritless. As to the best-interest factors identified by plaintiff—(a), (b), (c), (d), and (e)—the trial court simply concluded that the factor favored neither party. The trial court is required to state its findings and conclusions as to each factor, but the trial court is not required to comment on every matter in evidence or to provide detailed statements as to each factor. See Bowers (After Remand), 198 Mich App at 328; MCR 2.517(A)(2). Although we would have preferred more detailed findings to reflect upon, the trial court sufficiently fulfilled its duty to place a conclusion as to each of the best-interest factors on the record. See Bowers (After Remand), 198 Mich App at 328.
Finally, plaintiff argues that the trial court erred in finding that best-interest factors (b), (c), (d), (e), (f), (h), and (j) favored neither party. Plaintiff further argues that the trial court should have attributed more weight to its conclusion that factor (k) favored plaintiff.
MCL 722.23(c) requires the trial court to consider "[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs." Although defendant's earnings at the time of the divorce trial were less than plaintiff's, there was no indication that defendant could not or would not adequately provide for AS's material needs. Defendant had employment, was insured through Medicaid, was actively seeking more profitable employment, and resided in a stable, comfortable home with his mother. Because both parties could appropriately care for AS, the trial court's finding that MCL 722.23(c) favored neither party was not against the great weight of the evidence.
Next, MCL 722.23(d) requires the trial court to consider "[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity." Although AS has resided in the martial home—where plaintiff still resides—for her entire life, she also has frequently visited defendant's mother's home, including overnight weekend visits with defendant while the divorce proceedings were ongoing. The parties repeatedly agreed that defendant's mother's home was an appropriate and safe environment for AS. To the extent that plaintiff alleges that defendant created an unsafe environment for AS by leaving marijuana in her reach and being violent toward plaintiff, neither of these allegations are applicable to defendant's residence with his mother. The evidence establishes that defendant was not allowed to consume or grow marijuana in his mother's home. And considering that the parties no longer live together, and that there is no evidence that defendant has harmed anyone in his mother's home, including AS, defendant's alleged violence and anger toward plaintiff is similarly not relevant to the stability of his current residence. Because there was no testimony or evidence suggesting that the environment at defendant's home was anything but stable and satisfactory, the trial court's finding that MCL 722.23(d) did not favor either party was not against the great weight of the evidence.
Next, MCL 722.23(e) requires the trial court to consider "[t]he permanence, as a family unit, of the existing or proposed custodial home or homes." Plaintiff argues that this factor should have favored her because defendant was planning on moving out of his mother's home. This argument is based, however, on a vague statement by defendant that he would eventually move out of his mother's home but that no one was pushing him to leave. Defendant did not testify that he was actively planning on moving out of his mother's home or would do so in the near future. Considering that neither party planned to change residences, remarry, or undergo any changes to their home life in the foreseeable future, the trial court's finding that MCL 722.23(e) did not favor either party was not against the great weight of the evidence.
Next, MCL 722.23(f) requires the trial court to consider "[t]he moral fitness of the parties involved." On appeal, plaintiff argues that this factor should have favored her because defendant was incapable of keeping harmful items used for his marijuana growing operation out of AS's reach and because defendant was violent toward plaintiff. Regarding the risk defendant's growing operation posed to AS, although plaintiff and her father testified that defendant did not properly restrict access to his medical marijuana and left dangerous items within AS's reach, defendant testified that he kept the marijuana out of AS's reach, and his mother testified that there was never any dangerous items in AS's reach at the marital home. Because the trial court is in a better place to judge the credibility of witnesses, we must defer to its credibility determination in defendant's favor on this issue. See Bowers (After Remand), 198 Mich App at 324.
Nevertheless, although defendant's growing operation may not have placed AS in danger, and despite the fact that defendant's growing operation has apparently ceased since defendant moved into his mother's home, we still find that the growing operation negatively impacts defendant's moral fitness. Defendant testified that he has a felony background. The record makes apparent that the caregiver card required for the growing operation was in plaintiff's name, although defendant was primarily involved in the growing operation and the procurement of plaintiff's caregiver card. Because it is unlikely that defendant could have obtained a caregiver card with his felony background, see MCL 333.26423(k), we find that his attempt to bypass the law by obtaining a caregiver card in plaintiff's name reflects poorly on his moral character.
Moreover, regarding domestic violence, although there was some testimony that plaintiff may have been minimally violent toward defendant on occasion, the record appears clear that defendant was the principle aggressor in the relationship. As will be discussed later in this opinion, the trial court was even presented with an audio recording of defendant in which defendant told plaintiff to remove AS from a room, because plaintiff knew what she had coming. And defendant's aggression did not end with plaintiff. The trial court heard testimony that defendant attempted to start a fight with a coach at his other child's football game, and that, on another occasion, defendant rammed his car into his father-in-law's car because defendant was too impatient to wait for him to move his car from the driveway.
Given this, we conclude that the evidence clearly preponderates against the trial court's finding that MCL 722.23(f) favored neither party. MCL 722.23(f) should have favored plaintiff.
Next, MCL 722.23(h) requires the trial court to consider "[t]he home, school, and community record of the child." Plaintiff argues that this factor should favor her because AS began preschool in Fall 2016, and plaintiff was solely responsible for her education. Defendant also testified, however, that plaintiff denied him information about AS's school and after-school activities. Further, there was no testimony that AS experienced problems in either party's home or community or suffered from behavioral or academic problems. Without such testimony, it was not against the great weight of the evidence for the trial court to have found that the parties were equal as to MCL 722.23(h).
Next, MCL 722.23(j) requires the trial court to consider "[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents." On appeal, plaintiff argues that this factor should have favored her because, unlike plaintiff, defendant made derogatory comments about plaintiff and her family and sought to punish plaintiff for the perceived unfairness of the temporary custody schedule rather than seeking a schedule in AS's best interests.
It is fair to say that defendant made some imprudent and uncouth remarks toward the close of trial that painted plaintiff and her family in a negative light, including statements that plaintiff was lying in her testimony and that her family was abrasive. There is, however, no evidence in the record that defendant sought to damage the development of a relationship between plaintiff and AS. Plaintiff presented no testimony that defendant spoke poorly of plaintiff in front of AS or altered AS's perception of plaintiff in any way. Further, the record indicates that there was clearly animosity between the parties and that neither party actively supported the other's relationship with AS. Accordingly, the trial court's conclusion that MCL 722.23(j) favored neither party was not against the great weight of the evidence.
Finally, MCL 722.23(k) requires the trial court to consider "[d]omestic violence, regardless of whether the violence was directed against or witnessed by the child." The trial court noted that defendant had a domestic violence conviction and that plaintiff had submitted an audio recording into evidence that appeared to demonstrate defendant's intention to harm plaintiff physically. On appeal, plaintiff argues that this factor should have more strongly favored her because defendant's abuse took place in front of AS.
During the proceedings, the trial court heard an audio recording wherein defendant was yelling at plaintiff and, at one point, told plaintiff to remove the children from the room because "you know you got it coming." Plaintiff also testified that defendant had previously taken her belongings and prevented her from leaving the home, pulled her hair, kicked her, choked her, pushed her, and threatened to break her jaw. Plaintiff further testified that, on one occasion while the parties were driving, defendant threatened to drive off of a bridge to kill her. There was also some testimony that plaintiff was physically violent with defendant.
The evidence undoubtedly reflects a history of domestic violence between the parties. The trial court evaluated the credibility of the testimony given and determined that MCL 722.23(K) favored plaintiff. Undoubtedly, this finding was not against the great weight of the evidence.
Still, plaintiff argues that the trial court should have afforded this factor greater weight in its best-interest analysis. Although we conclude that the trial court should have considered defendant's domestic violence a negative reflection on defendant's moral character, we find that the trial court sufficiently appreciated the seriousness of defendant's conduct, such that, as a whole, the trial court's best-interest findings were not against the great weight of the evidence. Given that, by the time of the custody hearing, the domestic violence—and defendant's questionable growing operation—had apparently ceased, we cannot conclude that the trial court's ultimate custody determination was a palpable abuse of discretion.
Although, on the current record, we cannot reverse the trial court's custody determination, we note for the parties' benefit that any future domestic violence or other illegal conduct may constitute proper cause to revisit the custody determination. See Vodvarka v Grasmeyer, 259 Mich App 499, 509-512; 675 NW2d 847 (2003).
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey