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STATE OF MICHIGAN COURT OF APPEALS
LAWRENCE TUCKER, Plaintiff-Appellee/Cross-Appellant, V No. 299191 Macomb Circuit Court Family Division LC No. 2002-001711-DC UNPUBLISHED April 19, 2011

TAMI DEVEROUX, Defendant-Appellant/CrossAppellee.

LAWRENCE TUCKER, Plaintiff-Appellant, v No. 300257 Macomb Circuit Court Family Division LC No. 2002-001711-DC

TAMI DEVEROUX, Defendant-Appellee.

Before: DONOFRIO, P.J., and CAVANAGH and STEPHENS, JJ. PER CURIAM. In Docket No. 299191, defendant appeals as of right the trial court's opinion and order dated July 5, 2010, regarding plaintiff's motion to change custody. Plaintiff cross-appeals in Docket No. 299191. In Docket No. 300257, plaintiff appeals as of right the trial court's order dated September 13, 2010, denying his motion for appellate attorney fees. The two matters have been consolidated for the purpose of appellate review. We affirm in part, reverse in part, and remand the case to the trial court with instructions to hold a hearing regarding which school the child shall attend considering the child's best interest. I. STANDARD OF REVIEW Three standards of review govern custody appeals. First, we review the trial court's factual findings under the great weight of the evidence standard. Berger v Berger, 277 Mich -1-

App 700, 705; 747 NW2d 336 (2008). Such findings must be affirmed unless the evidence clearly preponderates in the opposite direction. Id. Second, we review the trial court's discretionary decisions, including custody and parenting time, for an abuse of discretion. Matczak v Matczak, 482 Mich 1022, 1024; 759 NW2d 645 (2008); Berger, 277 Mich App at 716. "An abuse of discretion exists when 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." Berger, 277 Mich App at 705. Third, with regard to the interpretation and application of law, we review the trial court's decisions under the clear error standard. Fletcher v Fletcher, 447 Mich 871, 878-879; 526 NW2d 889 (1994). The trial court clearly errs "[w]hen [it] incorrectly chooses, interprets, or applies the law." Id. at 881. II. PROPER CAUSE OR A CHANGE OF CIRCUMSTANCES The parties first dispute whether the trial court erred in finding that plaintiff established proper cause or a change in circumstances sufficient to revisit the custody order. MCL 722.27(1)(c) provides that the trial court may modify a child custody order for proper cause or a change in circumstances. Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003). Thus, a party seeking a change in custody must, as a threshold matter, demonstrate proper cause or a change in circumstance, and the failure to do so precludes the trial court from holding a child custody hearing to revisit the custody order. Brausch v Brausch, 283 Mich App 339, 355; 770 NW2d 77 (2009). "[P]roper 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." Vodvarka, 259 Mich App at 511. In determining whether such ground or grounds exist, trial courts appropriately turn to the twelve "best interest of the child" factors for guidance. Id. As stated by a panel of this Court in Vodvarka: [N]ot just any fact relevant to the twelve factors will constitute sufficient cause. Rather, the grounds presented must be "legally sufficient," i.e., they must be of a magnitude to have a significant effect on the child's well-being to the extent that revisiting the custody order would be proper. Obviously, trial courts must make this factual determination case by case. [Id. at 512 (emphasis in original).] With regard to establishing a change in circumstances: [A] movant must prove 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. Again, not just any change will suffice, for over time there will always be some changes in a child's environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors. [Id. at 513-514 (emphasis in original).] -2-

Here, defendant claims that the trial court failed to make a determination regarding whether proper cause or a change in circumstances existed until after the evidentiary hearing, and that this error is evidenced in the trial court's order. This argument lacks merit. In the trial court's order, it clearly stated that it found proper cause or a change in circumstances from the face of plaintiff's motion, well before it held an evidentiary hearing on the matter: The change of circumstances and good cause alleged in Plaintiff's motion to Change Custody of 12/12/08 were the changes in residence of Defendant, the several criminal charges and the interference with his parenting time. However, the court was unable to address Plaintiff's Motion till the end of June early July 2010 because Defendant left the State of Michigan and did not return till February 2010. Further, despite the fact-sensitive nature of the inquiry, a trial court, as here, need not hold an evidentiary hearing to resolve the threshold question of proper cause or a change in circumstances. Vodvarka, 259 Mich App at 512. "Often times, the facts alleged to constitute proper cause or a change of circumstances will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or a change of circumstances, and then decide if they are legally sufficient to satisfy the standard." Id. In the instant case, plaintiff's motion stated that defendant had been charged with multiple acts of fraud in the last several months, had been the subject of several eviction proceedings, was currently being evicted, was arrested in the child's presence, and was currently in jail. He also argued that defendant posed a flight risk if released from bond. Finally, he argued that defendant suffers from emotional problems that make her unable to properly provide for the child. Accepting these alleged facts as true, as the trial court may properly do, the trial court found the facts legally sufficient to satisfy the standard for proper cause or a change in circumstances. It is also relevant that the movant's burden in this threshold inquiry is the preponderance of the evidence standard. Powery v Wells, 278 Mich App 526, 527; 752 NW2d 47 (2008). For all these reasons, we hold that the trial court did not abuse its discretion in finding proper cause or a change in circumstance sufficient to revisit the custody order. Defendant next argues that the trial court erred in considering events occurring only after the last custody order, rather than before and after the last custody order. According to defendant, although plaintiff alleged that defendant changed residences, was charged with various crimes, absconded with the child, and interfered with plaintiff's parenting time, this same course of conduct occurred before the last custody order. Defendant argues that continuation of long-standing problems does not, and cannot, constitute proper cause or a change in circumstances. Although we agree that evidence of "change" is required, we disagree that such change was not established in this case: Because a "change of circumstances" requires a "change," the circumstances must be compared to some other set of circumstances. And since the movant is seeking to modify or amend the prior custody order, it is evident that the circumstances must have changed since the custody order at issue was entered. Of course, -3-

evidence of the circumstances existing at the time of and before entry of the prior custody order will be relevant for comparison purposes, but the change of circumstances must have occurred after entry of the last custody order. As a result, the movant cannot rely on facts that existed before entry of the custody order to establish a "change" of circumstances. The same is not necessarily true for proving proper cause, though in most cases it will hold true. The phrase "proper cause" is not by the words themselves tied to a change in events as is "change of circumstances." Rather, proper cause is geared more toward the significance of the facts or events or, as stated earlier, the appropriateness of the grounds offered. However, we believe a party would be hard-pressed to come to court after a custody order was entered and argue that an event of which they were aware (or could have been aware of) before the entry of the order is thereafter significant enough to constitute proper cause to revisit the order. [Vodvarka, 259 Mich App at 514-515 (footnotes omitted).] Here, very clearly, the trial court considered events occurring after the last custody order. Even assuming, as defendant argues, that defendant was evicted, faced criminal charges, and fled the jurisdiction before entry of the last custody order, the abundance of incidents occurring since the last custody order establish a more definite pattern of this behavior, calling into greater question defendant's stability and judgment, the lack of which could profoundly affect the child. Defendants continued failure to pay rent and absconding of the child without informing plaintiff evidences a change sufficient to revisit the parties' custody order. To hold otherwise would result in absurdity, permitting parents to engage in criminal or otherwise improper behavior without risk of compromising their custodial rights so long as they engaged in such criminal or otherwise improper behavior in the past. In addition, defendant argues that most of her alleged improper behavior relates to parenting time interference, and that interference with parenting time is not a proper basis for changing custody. While defendant correctly states the law, that "[d]isputes regarding visitation and contempt are not a proper basis for changing custody," Adams v Adams, 100 Mich App 1, 13; 298 NW2d 871 (1980), here, there was more. Plaintiff alleged acts of fraud and kidnapping. For this reason, defendant's argument lacks merit. III. ESTABLISHED CUSTODIAL ENVIRONMENT WITH BOTH PARENTS Plaintiff argues that the trial court erred in finding an established custodial environment with both parents and, consequently, held the parties to the incorrect burdens of proof on the issue regarding whether modifying custody and parenting time were in the child's best interest. We disagree. The pertinent statute, MCL 722.27(1)(c), provides: The court shall not ... 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 -4-

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. Although the clear and convincing evidence standard applies in cases where the movant seeks a change in the child's established custodial environment, this heightened evidentiary burden is not applicable in cases where the desired relief would not constitute a change in the child's established custodial environment. Pierron v Pierron, 486 Mich 81, 89-90; 782 NW2d 480 (2010). Rather, in such case, the movant need only prove by a preponderance of the evidence that the relief sought is in the child's best interest. Id. Here, plaintiff argues that the trial court should have found an established custodial environment with plaintiff because the child lived exclusively with him for the 15 months preceding the evidentiary hearing, and, therefore, it erred in holding him to the heightened evidentiary burden. As stated in Berger, however: 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. 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. 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. [Berger, 277 Mich App at 706-707 (internal citations omitted).] The fact that the child resided with plaintiff for the 15 months preceding the evidentiary hearing is not dispositive on the inquiry. In accordance with Berger, as well as MCL 722.27(1)(c), the trial court properly found: In spite of the stubborn insistence on their own way and the litigation instituted by each of them, from April 8, 2003 till April 3, 2009, while in the custody of each parent, Ashleigh looked to that parent for fulfillment of her physical and her psychological needs. . . . The court finds that there was an established custodial environment existing when plaintiff filed his motion. The Plaintiff and the Defendant exercised a roughly 50

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