JOHN JOSEPH TIERNEY V KIMBERLY MARIE TIERNEY
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN JOSEPH TIERNEY,
UNPUBLISHED
March 9, 1999
Plaintiff-Appellant,
v
No. 209677
Genesee Circuit Court
LC No. 95-179853 DM
KIMBERLY MARIE TIERNEY,
Defendant-Appellee.
Before: Cavanagh, P.J., and Markman and Smolenski, JJ.
PER CURIAM.
Plaintiff appeals as of right a judgment of divorce that awarded the parties joint legal custody of
their children, Meghan Marie Tierney and Ryan Austin Tierney, and awarded physical custody of the
children to defendant. We affirm.
The parties were married on June 21, 1992, and soon produced two children, Meghan, born on
March 12, 1993, and Ryan, born on October 29, 1994. During this time, plaintiff was an osteopathic
medicine resident in Boston for one year; he and his family then moved to the Flint area in June 1993 for
a four-year residency program. Plaintiff’s family is from Boston, where plaintiff intended to begin a
fellowship program as soon as his residency was completed in July 1997. At the time of the custody
determination, defendant did not express any plans to leave Michigan, although her extended family was
in Florida.1 Defendant had found a job as a pharmaceutical salesperson with Smith-Klein-Beecham in
the Flint area and was a top sales representative, although she was fired when she violated company
policy by doing laundry during a workday. She was then hired as a sales representative at another
company in December 1996. During the marriage, plaintiff generally worked long hours, while
defendant would get the children up in the morning and fix them dinner at night. She also hired and
trained the children’s nannies, since both parents worked full-time.
In February 1995, as a result of the constant arguing, the parties decided to live in separate
areas of the house, then later decided also to become financially separate. During this time, defendant
met another man. In July 1995, defendant moved out of the family home; she testified that she did not
begin a romantic relationship with this man until after this time. Plaintiff also had romantic relationships
during the parties’ separation. Both parties stated that the children were too young to understand the
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nature of their parents’ relationships. However, plaintiff was angry about defendant’s affair with another
man, and after she asked for a divorce, he occasionally said negative things about her to the children.
Plaintiff also enrolled Meghan in a Montessori preschool without discussing the matter with defendant.
Although both parties’ families were Catholic and Meghan was baptized in the Catholic church,
neither party attended church at the beginning of their marriage. After Meghan was born, they began to
attend church again, but their attendance was generally limited to special occasions. However, after the
divorce was filed, plaintiff began to attend the Catholic church on a weekly basis. Defendant attended
the nondenominational Unity Church. She stated that she did not consider taking the children to her
new church to be “switching” their religion, because the children had not, in her opinion, ever practiced
Catholicism.
Both parties appear by every measure to be good parents, and while each party and several
witnesses expressed reasons why the children would be better off with one parent or the other, there
were no issues that suggested that one party was clearly the better parent. The trial court found that no
established custodial environment existed for the children. However, the trial court determined that
defendant had been the primary caregiver when the parties had lived together because she bore the
majority of the responsibilities for the children. The trial court determined that all of the statutory factors
were substantially equal, except for factors “(d) [t]he length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining continuity”; “(j) [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”; and “(l) [a]ny other factor
considered by the court to be relevant to a particular child custody dispute,” all of which the court found
in favor of defendant. MCL 722.23; MSA 25.312(3). Based on these findings, the court awarded
legal custody to the parties jointly, but awarded primary physical custody to defendant, with plaintiff to
have summer and other visitation with the children.
Plaintiff first challenges the trial court’s finding that there was no established custodial
environment, arguing that the children had an established custodial environment in the joint legal and
physical custody arrangement to which the parties agreed pursuant to their separation in 1995, whereby
each party had physical custody of the children on a “week-on/week-off” basis. Whether an
established custodial environment exists is a question of fact that this Court reviews under the great
weight of the evidence standard. MCL 722.28; MSA 25.312(8); Fletcher v Fletcher, 447 Mich 871,
879; 526 NW2d 889 (1994).
The first step in a custody decision is to determine whether an established custodial environment
exists for a child. Hayes, supra at 387. The Child Custody Act provides, in pertinent part, 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. 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. [MCL 722.27(1)(c); MSA 25.312(7)(1)(c).]
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If a custodial environment does not exist, then the custody determination is made upon a showing by a
preponderance of the evidence that a particular placement is in the child’s best interests. Bowers,
supra. If there is an established custodial environment, the trial court may not make a change in custody
without clear and convincing evidence that the change is in the best interests of the child. MCL
722.27(1)(c); MSA 25.312(7)(1)(c); Bowers, supra. The proper burden of proof must be determined
before the court can analyze the child’s best interests.
Here, the trial court found that there was no established custodial environment, primarily
because the parties had agreed to share physical custody of the children on a fifty-fifty, weekly basis, a
situation that lasted for approximately two years before the custody hearing. The trial court, we
emphasize, was not precluded from finding an established custodial environment in such an arrangement.
Nielsen v Nielsen, 163 Mich App 430, 433-34; 415 NW2d 6 (1987). Nor is such an arrangement
necessarily disfavored. However, “where there are repeated changes in physical custody and
uncertainty created by an upcoming custody trial, a previously established custodial environment is
destroyed and the establishment of a new one is precluded.” Bowers, supra at 326. Here, the young
children were shuttled weekly to a different home for two years, where they were subjected to different
routines and caregivers. Evidence showed that the children’s behavior suffered because of the hectic
custody schedule and the conflict among routines in each household. Thus, in contrast to the joint
custody agreement that produced stability in Nielsen, supra, the arrangement in this case did not create
a relationship with either one party or both parties “marked by qualities of security, stability and
permanence.” Baker v Baker, 411 Mich 567, 579-80; 309 NW2d 532 (1981). Consequently, we
do not believe that the trial court here improperly ignored the great weight of the evidence in determining
that no established custodial environment existed. We emphasize though, in agreement with Nielsen,
that a joint physical custody arrangement may “represent an enlightened approach” to a difficult situation
in the right circumstances, id., at 433-34, and that such an arrangement may constitute an “established
custodial environment” where it in fact produces a stable and secure environment for the children.
Next, plaintiff challenges the trial court’s findings of fact pertaining to the statutory “best
interests” factors, arguing that certain findings were against the great weight of the evidence. We will
affirm such findings unless the evidence clearly preponderates in the opposite direction. Fletcher,
supra at 879. The Child Custody Act and MCR 2.517 provide that a trial court must make specific
findings of fact on each of twelve “best interests” factors that are to be used to determine custody in the
best interest of the child. MCL 722.23; MSA 25.312(3); Fletcher, supra at 880-81.
First, plaintiff contests the court’s finding that factor “(b) [t]he capacity and disposition of the
parties involved to give the child[ren] love, affection, and guidance and to continue the education and
raising of the child[ren] in [their] religion or creed, if any,” MCL 722.23; MSA 25.312(3), was equal
between the parties. The trial court found that the children did not have an established religion or creed.
However, plaintiff contends that the trial court erroneously focused its analysis on whether the children,
who were toddlers at the time of trial, had adopted a certain religion, instead of correctly focusing on the
parents’ religious beliefs and practices, as well as the historical Catholic affiliations of the parties’
families. Plaintiff contends that the trial court should have found him better able to continue the
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children’s religious education in Catholicism since he practiced this religion while defendant attended a
non-denominational church.
The trial court was not required to use a particular analysis in determining the children’s religious
affiliation. While inquiry into the parties’ religious affiliations is obviously germane to the issue whether
the children have a religious identity, it is not the only relevant inquiry. The trial court must also look to
the religion the parties and children actually practiced during the marriage, if any, as well as to all other
relevant facts. See Ireland v Smith, 451 Mich 457, 466; 547 NW2d 686 (1996) (when determining
the best interests of children in a custody dispute, “the circuit judge is to give careful consideration to the
whole situation”); Carson v Carson, 156 Mich App 291, 296-98; 401 NW2d 632 (1986).
Therefore, here, the trial court properly looked to other evidence concerning the family’s actual religious
practices in making its determination that the children did not have a definite religious affiliation. While
both parties were raised Catholic, they did not attend church before or at the beginning of their
marriage, and later their attendance was sporadic at best. Although both children were baptized as
Catholics, neither parent took the children regularly to Catholic church or involved them in Catholic
church activities. After the parties’ separation, plaintiff began attending the Catholic church on a regular
basis. Defendant began regularly attending the Unity Church, a non-denominational church. In light of
the foregoing, the trial court’s finding that the children did not have a definite religious affiliation was not
against the great weight of the evidence, which showed that the parties had not seriously involved
themselves or the children in Catholicism during the marriage. Moreover, in light of the parties’ dual
efforts to expose the children to religious practice and belief in God, the trial court’s finding that both
parties were equally suited to give the children religious training is not against the great weight of the
evidence.
Second, plaintiff contests the trial court finding that the parties were equal under factor (c),
which concerns “[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.” MCL 722.23; MSA 25.312(3). Plaintiff argues that
although each party has a high income potential, he is better suited to provide financially for the children,
because the evidence showed that defendant once lost a high-paying job because she violated company
policy, failed to make several payments to the children’s nanny, refused to pay for Meghan’s pre-school
and the children’s activities, and refused to honor her obligation to pay for the upkeep of the family
home. The trial court acknowledged that there was some testimony as to “who didn’t pay what bill, or
why this bill wasn’t paid, or this bill was paid late,” but stated that an occasional lapse on the part of
either party was understandable, considering the stress caused by the breakup of the marriage.
Under factor (c), a trial court may look disfavorably upon a parent’s exercise of poor financial
judgment that adversely affects his or her children. See Fletcher v Fletcher (After Remand), 229
Mich App 19, 27-8; 581 NW2d 11 (1998). However, a trial court should not give undue weight to a
party’s superior economic condition when assessing this factor. Dempsey v Dempsey, 409 Mich 495,
497-98; 296 NW2d 813 (1980). Here, both parties were equipped to provide the children financial
stability. Although evidence showed that defendant was fired from a high-paying job as a sales
representative for a pharmaceuticals company because she violated company policy in 1996, there was
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no indication that the children were adversely affected by her termination and she currently has a good
job. Although some evidence suggested that defendant may have been remiss in paying plaintiff sums of
money she owed for child care expenses and other expenditures related to the maintenance of the
marital home during the period of their separation, there is no indication that the children were adversely
affected by the inevitable financial disputes that arise between divorcing parties. There was also no
indication that the parties had agreed to share either the expenses for the home in which plaintiff
continued to live or for the pre-school in which plaintiff enrolled Meghan. Finally, evidence showed that
defendant stopped taking Meghan bowling because the child did not enjoy the sport, but then enrolled
her in swimming and involved both children with a camping club. There was no evidence that defendant
was either financially unprepared or unwilling to provide for the children. Thus, in our judgment, the trial
court’s finding that the parties were equal under best interest factor (c) was not against the great weight
of the evidence.
Third, plaintiff argues that the trial court’s finding that the parties were equal under best interest
factor (e), which concerns “[t]he permanence, as a family unit, of the existing or proposed custodial
home or homes,” MCL 722.23; MSA 25.312(3), was against the great weight of the evidence because
he had the superior ability to provide the children with a permanent custodial home in Massachusetts,
where they would have access to his large, supportive extended family, in contrast to defendant’s home
in Michigan without family nearby.
Acceptability of the proposed custodial home is not pertinent to the analysis under factor (e),
Fletcher v Fletcher, 447 Mich 871, 885; 526 NW2d 889 (1994); thus we focus only on the “child’s
prospects for a stable family environment.” Ireland, supra at 465. The Supreme Court has stated:
The stability of a child’s home can be undermined in various ways. This might
include frequent moves to unfamiliar settings, a succession of persons residing in the
home, live-in romantic companions for the custodial parent, or other potential
disruptions. Of course, every situation needs to be examined individually. [Ireland,
supra at 465 n 9.]
The evidence showed that defendant intended to reside in Michigan with the children, where they had
lived for the majority of their lives, and were served by a regular, established secondary caregiver.
Plaintiff proposed to take the children to Massachusetts with him, where he had supportive extended
family, but did not appear to have clear plans for a permanent home. It was unclear from the testimony
whether plaintiff intended to move in with his parents permanently or only temporarily when he took the
children to Massachusetts. Although both parties had romantic attachments while they were still
married, both parties testified that the children w not yet capable of discerning the nature of adult
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romantic relationships and neither party had immediate plans to incorporate a domestic partner into their
living arrangements. In addition, the parties accused each other of abusing prescription drugs, but there
was no evidence to substantiate either claim or show that the drugs may impact negatively on either
parties’ ability to provide a stable family environment. Overall, it appears that the parties can fairly
equally provide the children with a permanent and stable home,2 and thus, we do not find that this
determination was against the great weight of the evidence.
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Fourth, plaintiff challenges the trial court’s finding that the parties were equally morally fit to have
custody of the children under factor “(f) [t]he moral fitness of the parties involved.” MCL 722.23;
MSA 25.312(3). Plaintiff does not contend that the bare fact of defendant’s extramarital affair indicates
that she was an unfit parent, since both parties are equally guilty. Instead, plaintiff argues that
defendant’s handling of her extramarital affair and alleged drug use cast “shadows on [defendant]’s
maturity, judgment and moral example.”
As explained by our Supreme Court, marital infidelity, standing alone, is not an indication of
parental unfitness:
Factor f (moral fitness) . . . relates to a person’s fitness as a parent. To
evaluate parental fitness, courts must look to the parent-child relationship and the effect
that the conduct at issue will have on that relationship. Thus, the question under factor f
is not “who is the morally superior adult”; the question concerns the parties’ relative
fitness to provide for their child, given the moral disposition of each party as
demonstrated by individual conduct. We hold that in making that finding, questionable
conduct is relevant to factor f only if it is a type of conduct that necessarily has a
significant influence on how one will function as a parent. [Fletcher, supra at 886-87
(footnote omitted).]
Morally questionable conduct that has relevance to one’s fitness as a parent includes, but is not limited
to, “verbal abuse, drinking problems, driving record, physical or sexual abuse of children, and other
illegal or offensive behaviors.” Id. at 887 n 6. In this case, each party had affairs and exposed the
children to their romantic partners. However, the evidence showed that the children were unaware of
the true nature of their parent’s relationships with the other parties. Thus, the trial court’s finding that the
parties were equally morally fit is not against the great weight of the evidence. Further, while other
evidence suggested that defendant may have at one time used prescription drugs illegally, and that
plaintiff brought home samples of prescription medications, there is no evidence that such drug use
affected either parties’ parenting
Fifth, plaintiff challenges the trial court’s finding in defendant’s favor as to factor “(j) [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.” MCL 722.23;
MSA 25.312(3). Evidence of a party’s lingering hostility towards an estranged spouse, as well as an
unwillingness to seek the other parent’s input before making decisions related to a child, will support an
adverse finding under factor (j). See Fletcher, supra at 28-9. Here, the trial court found that
defendant was more willing and able to foster a close personal relationship between the children and
plaintiff than vice versa. In our judgment, the evidence adequately supported defendant’s allegation that
plaintiff occasionally belittled her in front of the children and sometimes demonstrated considerable
hostility toward her. Moreover, defendant testified that plaintiff enrolled Meghan in Montessori
preschool without first consulting her. Therefore, we affirm the trial court’s findings under factor (j).
Sixth, plaintiff contends that the trial court’s finding on factor (l), which authorizes the trial court
to weigh in the best interests determination “[a]ny other factor considered by the court to be relevant to
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a particular child custody dispute,” MCL 722.23; MSA 25.312(3), is against the great weight of the
evidence. Under this factor, the trial court found that defendant was the children’s primary caretaker
before the separation. Plaintiff’s first contends that the trial court improperly focused on a “snapshot in
time” when making its finding under factor (l) because it looked further back in time than June 1, 1995,
when the parties entered into their joint custody separation agreement. In essence, plaintiff argues that
the trial court was required to focus solely on the period of time immediately after the parties’ separation
in making its best interests determination. However, this is incorrect. The trial court was required to
examine “the whole situation” in determining the custody issue. Ireland, supra at 466. Therefore, the
trial court did not err in looking, in part, to the parties’ willingness to assume caretaking responsibilities
prior to the parties’ separation agreement.
Plaintiff next contends that trial court’s findings on this factor were against the great weight of the
evidence and that it, in essence, found that the children indeed had a primary custodial environment with
defendant, thus contradicting its original finding that no established custodial environment existed and
forcing plaintiff to meet a higher burden of proof. In our judgment, evidence showed that before and
after the parties’ separation in this case, plaintiff’s work schedule was very busy and variable. When the
parties lived together, it fell to defendant, notwithstanding her own full-time job, to fix the children’s
meals, attend to their daily needs, and hire and train the children’s nannies. Thus, the trial court’s finding
that defendant acted as the children’s primary caregiver prior to the separation is not against the great
weight of the evidence. Further, contrary to the thrust of plaintiff’s argument, we do not believe that the
trial court gave preemptive weight to its finding under factor (l) or that plaintiff was “punished” for his
commitment to his medical training. When the trial court initially found that no established custodial
environment existed, it specifically stated that the parties were required to show by a preponderance of
the evidence that a particular placement was in the children’s best interests. We find no indication that
the trial court misallocated the burden of proof upon making its finding under factor (l).
Seventh, plaintiff contends that the trial court effectively punished him for challenging defendant’s
custody of the children primarily because he harbored a great deal of anger over defendant’s
extramarital affair, not because he had reason to believe that defendant was an unfit parent. While the
trial court did offer several editorial comments concerning his assessment of plaintiff’s motivations, we
do not agree that these comments evidenced any punitive or otherwise improper consideration on its
part.
Based on the analysis above, we conclude that the trial court’s ultimate findings of fact on the
disputed “best interests” factors were not against the great weight of the evidence. We find that the trial
court’s custody decision did not constitute an abuse of discretion. Although the trial court was required
to make a difficult decision because both parties appeared to be excellent parents, the result in this case
is not “grossly violative of fact and logic, such that it evidences a perversity of will, a defiance of
judgment, or exercise of passion or bias”. See Fletcher, supra at 879-80 (Brickley, J), 900 (Griffin,
J). Accordingly, we affirm the custody provisions of the judgment of divorce.
Finally, plaintiff argues that the trial court abused its discretion by ordering a fifty percent
abatement in his weekly child support payments for the period of summertime visitation. Morrison v
Richerson, 198 Mich App 202, 211; 497 NW2d 506 (1992). Plaintiff argues that this arrangement is
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inequitable because he will be responsible for the children’s day care and living costs during the summer
months, while defendant will not be required to pay for the children’s expenses during the summer, but
will still receive some support payments.3 Defendant has physical custody of the children for a major
portion of the year. In our judgment, it is unrealistic to assume that the costs associated with physically
caring for two children will be avoided entirely each summer when the children go to Massachusetts to
stay with plaintiff. The fifty percent parenting time abatement insures that plaintiff will not be forced to
pay full child support for periods of time during which the children stay with him, but also that he will still
contribute to defendant’s ongoing efforts to feed, clothe, and care for the children during the majority of
the year. Thus, we affirm the child support provisions of the judgment of divorce.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Stephen J. Markman
/s/ Michael R. Smolenski
1
We note that the parties stipulated to amend the judgment of divorce in August 1998 to allow
defendant to move to Atlanta, Georgia to accept a promotion to management in her job.
2
We note that defendant’s home stability may have been somewhat superior to that of plaintiff, since he
planned to move to Massachusetts and did not appear to have clear plans for a permanent home in
Massachusetts. However, the trial court considered this evidence in defendant’s favor under factor “(d)
[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of
maintaining continuity.” MCL 722.23; MSA 25.312(3).
3
We note that, after plaintiff filed this appeal, the parties stipulated to a modification of the judgment of
divorce that obligates them to share child care costs equally, without reference to which party has actual
physical custody of the children. In addition, the Michigan Child Support Formula Manual (1998), §
IV, pp 27-28, states that the parenting time abatement should not be applied to the child care portion of
the support order. Thus, we look only to living expenses in connection with the support abatement
issue.
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