Preview:

STATE OF MICHIGAN
COURT OF APPEALS


DAVID ALLEN RILEY, Plaintiff-Appellee, v NANCY KAYE DOWNS, Defendant-Appellant.

UNPUBLISHED December 1, 2000

No. 224314 Shiawassee Circuit Court LC No. 86-005158-DM

Before: Wilder, P.J., and Smolenski and Whitbeck, JJ. PER CURIAM. Defendant appeals as of right from an order awarding plaintiff primary physical custody of the parties' son, David. We affirm in part, reverse in part and remand for further proceedings consistent with this opinion. Defendant first contends that the trial court erred in determining that an established custodial environment did not exist with defendant and, therefore, applied the wrong standard of proof to plaintiff's petition for a change of custody. We agree. Modifications to a custody order involving a minor child are governed by MCL 722.27(1)(c); MSA 25.312(7)(1)(c), which provides, in pertinent 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. Generally, "the first step in considering a petition to change custody is to determine whether an established custodial environment exists; it is only then that the court can determine what burden of proof must be applied." Hayes v Hayes, 209 Mich App 385, 387; 532 NW2d 190 (1995). The existence of a previous custody order is irrelevant to the determination of an established custodial environment. Id. at 388. Instead, the trial court considers "the -1

circumstances surrounding the care of the children in the time preceding trial." Id. The existence of an established custodial environment is a question of fact for the trial court, id. at 387-388, which is reviewed under the great weight of the evidence standard. MCL 722.28; MSA 25.312(8); Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994). In this case, the trial court found that defendant had established a custodial environment with David. However, the court held that the custodial environment had been destroyed because the relationship between David and defendant had deteriorated during the two or three years preceding the motion for change of custody. Because we believe this factual finding is against the great weight of the evidence, we find that the trial court committed error requiring reversal. Defendant maintained physical custody of David from the time he was two years old until after his fourteenth birthday, when the trial court entered its order changing custody. Other than periodic visitation with plaintiff, David was in defendant's daily care for more than twelve years. Uncontested evidence established that, each day, defendant woke David and helped him get ready for school. Although defendant worked full-time since 1992, she routinely dropped David off at her parents' home for breakfast and a ride to school. After defendant and David arrived home at 4:30 p.m. on school days, they ate dinner together and defendant helped him with his homework. Defendant regularly took David to medical and dental appointments, drove him to and from athletic practices, and attended every home and away game in which David participated. Moreover, defendant attended every open house and parent-teacher conference at David's school, volunteered as a room mother from kindergarten through fifth grade, helped with numerous field trips, athletic events and class projects. She was also a member of the parent teacher organization for his elementary school, was vice-president of the parent teacher organization for his middle school, and was a den mother for his cub scout troop from first to fifth grade. Defendant also took responsibility for day-to-day discipline, requiring David to complete household chores and finish his homework before watching television or talking on the telephone. Also, defendant set rules in the household with regard to David being at home alone with other teenagers and with regard to the time he was expected home after evening events. Evidence also showed that David shared problems with defendant and she counseled him on issues such as drugs, violence and sex. Thus, according to the uncontested evidence, defendant provided David's daily parental care, discipline and attention for more than twelve years, in a secure and stable home. Nevertheless, the trial court found that a change occurred in the home within the two or three years preceding the motion for change of custody, such that the established custodial environment was destroyed. In light of the proofs presented at the custody hearing, we believe the trial court's conclusion that the relationship between David and defendant had changed in recent years was factually accurate. Evidence showed that the two argued more as David entered adolescence and that defendant had to impose rules regarding his behavior that were less flexible than those instituted at plaintiff's house. However, this change was an insufficient reason for the trial court to find that the established custodial relationship with defendant had been destroyed.

-2

Evidence showed that David's relationship with defendant was strained because of age, gender differences, increased discipline, and David's desire to spend more time with his father in a less-restricted environment. Yet under MCL 722.27(1)(c); MSA 25.312(7)(1)(c), the child's "inclination" is not the sole factor which determines the existence of an established custodial environment. Rather, the trial court must consider "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." Id. David's growing pains do not negate the fact that, over many years, his established home was with defendant. The great weight of the evidence showed that defendant provided David's daily guidance, discipline, necessities of life, and parental comfort in a permanent and stable home. Further, the trial court must consider "the inclination of the custodian and the child as to the permanency of the relationship," when determining whether an established custodial environment exists. MCL 722.27(1)(c); MSA 25.312(7)(1)(c), (emphasis added). Our review of the record reveals that defendant's inclination as the child's custodian was that the custodial arrangement would continue indefinitely. The purpose of MCL 722.27(1)(c); MSA 25.312(7)(1)(c) is "to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders." Heid v Aaasulewski, 209 Mich App 587, 593-594; 532 NW2d 205 (1995). We decline to hold that an established custodial environment is extinguished whenever a child expresses a preference to spend more time with a non-custodial parent, notwithstanding a long-established living situation. As much as any child might prefer otherwise from time to time, rules, daily guidance, discipline and consistent parenting are what foster the security, stability and permanence of a home environment. As such, it was against the great weight of the evidence for the trial court to find that the established custodial environment with defendant had been destroyed, simply based on the child's preference, because the evidence clearly preponderates in the opposite direction. Fletcher, supra, 447 Mich 877-878. If an established custodial environment exists, a trial court may order a change of custody only when clear and convincing evidence demonstrates that such a change would be in the child's best interests. MCL 722.27(1)(c); MSA 25.312(7)(1)(c). It is well settled that a "trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law." Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). As set forth above, the trial court erroneously held that the established custodial environment existing with defendant had been destroyed. Accordingly, the trial court committed a clear legal error by ruling that plaintiff's standard of proof was a preponderance of the evidence. Id. Defendant next contends that the trial court made erroneous findings of fact with regard to the best interest factors contained in MCL 722.23; MSA 25.312(3). The trial court determined that factors a and i favored plaintiff, while factors b, c, d, e, f, g, h, and j favored both parties equally. Defendant challenges the trial court's findings with regard to factors a, b, d, e, f and i. A trial court's findings of fact regarding the best interest factors are reviewed under the great weight of the evidence standard. Hilliard v Schmidt, 231 Mich App 316, 321; 586 NW2d 263 (1998).

-3

The first of the best interest factors to be considered concerns the "love, affection, and other emotional ties existing between the parties involved and the child." MCL 722.23(a); MSA 25.312(3)(a). The trial court found that this factor weighed in favor of plaintiff because he and David had grown closer, while David and defendant often argued. We conclude that this factual finding was not against the great weight of the evidence. Testimony revealed that plaintiff and David had a close, loving relationship, that they enjoyed spending time together and that David expressed an interest in living with plaintiff. While David still shows affection for defendant, and defendant's devotion to her son is evident by her participation in his daily activities, the evidence did demonstrate some strain on their relationship. Therefore, the trial court's conclusion that this factor favored plaintiff was not against the great weight of the evidence. As for factor 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," MCL 722.23(b); MSA 25.312(3)(b), the trial court found the parties equal. The trial court's decision was based on its factual findings that plaintiff made an effort to visit David regularly and that plaintiff supported David's educational well-being. While the trial court admitted that plaintiff should do more to encourage David to attend church, the court also noted that David occasionally missed services while living with defendant. We believe that the trial court's finding of equality on this factor was against the great weight of the evidence. In terms of guidance, the evidence presented at trial indicated that plaintiff did not discipline David and was less restrictive of his behavior. Also, plaintiff allowed David to stay home alone during the summer, without supervision, while plaintiff worked 9

Download DAVID ALLEN RILEY V NANCY KAYE DOWNS.pdf

Michigan Law