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STATE OF MICHIGAN COURT OF APPEALS

ANNA MARIA SALATKA-BELCOVSON, Plaintiff/Counter-DefendantAppellant, v DAVID C. BELCOVSON, Defendant/Counter-PlaintiffAppellee.

UNPUBLISHED June 16, 2009

No. 289686 Macomb Circuit Court LC No. 2008-000127-DM

Before: Murphy, P.J., and Sawyer and Murray, JJ. PER CURIAM. Plaintiff appeals as of right from a judgment of divorce. On appeal, plaintiff argues that the trial court erred in awarding the parties joint legal and physical custody of the parties' two minor children, that the court erred in denying her request for attorney fees, and that the court was biased against her. We affirm. I. Established Custodial Environment Plaintiff first argues that the trial court erred in finding that an established custodial environment existed with both parents. MCL 722.27(1)(c) provides that a "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." Conversely, if an established custodial environment does not exist, an award of custody need only be supported by a preponderance of the evidence. LaFleche v Ybarra, 242 Mich App 692, 696; 619 NW2d 738 (2000). As this Court stated in Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008): Whether an established custodial environment exists is a question of fact that we must affirm unless the trial court's finding is against the great weight of the evidence. MCL 722.28; Mogle v Scriver, 241 Mich App 192, 196-197; 614 NW2d 696 (2000). A finding is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction.

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MCL 722.27(1)(c) provides, in pertinent part: 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. As further explained in Berger, supra at 706-707: An established custodial environment is one 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. Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981). The existence of a temporary custody order does not preclude a finding that an established custodial environment exists with the noncustodian or that an established custodial environment does not exist with the custodian. Id. at 579; Moser v Moser, 184 Mich App 111, 114-116; 457 NW2d 70 (1990). 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. Hayes v Hayes, 209 Mich App 385, 388; 532 NW2d 190 (1995). An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort. Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001). Plaintiff suggests that it was improper for the trial court to consider that the parties had always lived together in the marital home, because "it speaks only to the physical environment of the children." However, MCL 722.27(1)(c) provides that a child's "physical environment" is an appropriate consideration in deciding whether an established custodial environment exists. Plaintiff's principal argument with respect to this issue is that the evidence showed that she was primarily responsible for the day-to-day care of the children. Although we do not disagree with this characterization of the evidence, and we agree that it supports the trial court's finding that an established custodial environment existed with plaintiff, it does not negate the trial court's finding that an established custodial environment also existed with defendant. The evidence showed that defendant also regularly spent time with the children, participated in activities with them, and that he was actively involved in their care and development. The evidence supports the trial court's determination that, despite plaintiff's role as primary caregiver, the children also had an established custodial environment with defendant. In considering this issue, it was not improper for the trial court to consider the testimony of defendant's former wife, given her testimony that she frequently interacted with the family and was in a position to observe defendant's relationship with the children. There is no indication that the court gave inappropriate or undue weight to her testimony. Similarly, we find nothing improper with the trial court's consideration of defendant's relationship with his older son. The trial court merely noted that defendant had been an engaged father in the past, which was a relevant consideration in evaluating the credibility of plaintiff's and defendant's competing -2-

testimony regarding whether defendant was also engaged with his two younger children. We also find no merit to plaintiff's argument that the trial court improperly considered that both parties had generally demonstrated good parenting skills, where, according to plaintiff, "good parenting skills does not equate with an established custodial environment." Defendant's parenting skills were relevant to whether he fostered an environment in which the children naturally looked to him for guidance, discipline, the necessities of life, and parental comfort. In sum, the trial court did not err in finding that an established custodial environment existed with both parties. II. Children's Best Interests Next, plaintiff argues that the trial court erred in its evaluation of several of the statutory best interest factors and in awarding the parties joint legal and physical custody of the children. We disagree. In a child custody case, the trial court's "[f]indings of fact are reviewed pursuant to the great weight of the evidence standard." Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). Under this standard, the trial court's findings of fact will be upheld unless "`the evidence clearly preponderates in the opposite direction.'" Id. (citation omitted). This Court defers to the trial court's findings on issues of credibility. Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006). Child custody disputes are to be resolved according to a child's best interests. MCL 722.25(1). The best interests of the child are determined by considering the sum total of the statutory factors set forth in MCL 722.23(a)

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