BRIAN L LOUGHMILLER V REBECCA LARKINS
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STATE OF MICHIGAN
COURT OF APPEALS
BRIAN L. LOUGHMILLER,
UNPUBLISHED
March 9, 1999
Plaintiff-Appellant,
v
No. 211102
Wexford Circuit Court
LC No. 95-011813 DC
REBECCA LARKINS,
Defendant-Appellee.
Before: Griffin, P.J., and McDonald and White, JJ.
PER CURIAM.
Plaintiff father appeals as of right from an order granting primary physical custody of the parties’
minor child to defendant mother pursuant to MCL 722.23; MSA 25.312(6). An earlier order granting
defendant sole physical custody of the child was vacated by this Court, Loughmiller v Larkins,
unpublished per curiam opinion of the Court of Appeals, issued 10/31/97, (Docket No. 201887), and
the matter remanded to the trial court for further proceedings. On remand, the trial court held a hearing
and thereafter issued an opinion and order again granting sole physical custody of the child to defendant.
Plaintiff now appeals from the March 31, 1998, order. We reverse and remand.
I
In our prior opinion in this matter, this Court summarized the pertinent facts leading up to the
first appeal:
. . . The parties lived together in Cadillac and had one child, Brian, born January
14, 1994. In August 1995, the parties separated. On January 8, 1996, a custody
order was entered awarding them joint legal and joint physical custody of Brian. Under
the terms of the order, plaintiff father was granted parenting time every other weekend
and two nights per week.
In fall 1996, defendant mother moved from Cadillac to Owosso. Plaintiff then
filed a petition for sole physical custody or, in the alternative, continued joint physical
custody but with parenting time switching between the parties on a weekly basis. The
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friend of the court recommended joint custody with each party having parenting time on
alternating weeks. Defendant objected to the recommendation and requested a de
novo hearing. That hearing resulted in an order [dated February 19,1997] changing the
previous joint physical custody arrangement to sole physical custody in defendant
mother. Plaintiff was awarded parenting time every other weekend and six weeks in the
summer.
In vacating the February 19,1997, order for a change in custody and remanding, this Court held
in pertinent part:
On appeal, plaintiff first argues that the court’s acceptance of the parties’
stipulation as to the nonexistence of an established custodial environment constituted
clear legal error requiring reversal. We agree. The determination regarding an
established custodial environment results in a determination of whether the standard of
proof is clear and convincing evidence or a preponderance of the evidence. The proper
standard of proof in custody matters should not be left to the parties, but should be
made by the trial judge. . . .
The error cannot be considered harmless, since the record suggests that the
child may have had an established custodial environment with both parents. . . . If that
is the case, then the trial court used the wrong, lesser standard of proof when he
ordered a change of custody. . . . Moreover, we reject defendant’s contention that the
error is “moot” because her move to Owosso forced a custody change regardless of
the applicable standard of proof. An intrastate change of domicile, without more, is not
sufficient to warrant a change in custody. . . . The less drastic step of modifying the
parties’ parenting time schedule could well provide an adequate method to deal with the
increased travel time necessitated by defendant’s move. We therefore vacate the trial
court’s order modifying the parties’ joint physical custody of Brian. [Citations omitted.]
As a consequence of this ruling, the parties resumed the week-to-week parenting schedule, but
difficulties eventually resulted in defendant’s petition for rehearing of the custody issue. Plaintiff filed a
motion to consolidate the petition with his motion for a determination of support, parenting time, and
make-up parenting time.
Following a hearing on the matters raised by the parties, the trial court determined that an
established custodial environment existed in both parents’ homes. The trial court found, significant to
this appeal, that
The court has considered the testimony and evidence presented at the rehearing
and finds that inasmuch as the parties had joint physical custody of said minor child
during at least 3 of the past 4 years, and that said child looked to both parents for
guidance, discipline, the necessities of life, and parental comfort, that both parents had
an established custodial environment.
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Reevaluating the matter pursuant to the best interest factors set forth in MCL 722.23; MSA
25.312(3),1 the court found the parties to be equal, or that it was unable to rule in favor of either party,
with respect to the majority of factors. Factors (e) and (f), however, were decided in defendant’s favor
for related reasons. Regarding factor (e), which evaluates the “permanence, as a family unit, of the
existing or proposed custodial home or homes,” the court noted that defendant had married and
established a home with her new husband while in comparison, plaintiff “apparently” had no definite
plans to marry his “live-in companion.” The court found, with respect to factor (f) (“[t]he moral fitness
of the parties involved”) that “living together without the benefit of marriage, especially when young
children were involved [was] immoral.” As to factor (l) (“[a]ny other factor considered by the court to
be relevant to a particular child custody dispute”), the trial court stated that the minor child’s enrollment
in a headstart program was more of an advantage than a disadvantage to the child. The trial court
ultimately concluded that it was in the best interests of the child that defendant have primary physical
custody and set forth a visitation schedule virtually identical to that set forth in the court’s previous
order. The present appeal followed.
II
In the context of child custody cases, appellate courts must apply three different standards of
review to three distinct types of findings. Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889
(1994). This Court will review findings of fact under the great weight of evidence standard. A “trial
court’s findings on each factor should be affirmed unless the evidence ‘clearly preponderates in the
opposite direction.’” Id. at 879, quoting Murchie v Standard Oil Co, 355 Mich 550, 558; 94 NW2d
799 (1959). Questions of law are reviewed for clear legal error. Id. at 881. “When a court incorrectly
chooses, interprets, or applies the law, it commits legal error that the appellate court is bound to
correct.” Id. Finally, “[t]o whom custody is granted is a discretionary dispositional ruling,” and the
ruling will be affirmed unless it “represents an abuse of discretion.” Id. at 880.
Here, following remand by this Court, the trial court found that “both parents had an established
custodial environment.” MCL 722.27(1)(c); MSA 25.312(7)(1)(c).2 Because of the existence of an
established custodial environment, custody could only be changed based on a showing of clear and
convincing evidence. MSA 722.27; MSA 25.312(7);3 Hayes v Hayes, 209 Mich App 385, 387; 532
NW2d 190 (1995).
Plaintiff argues on appeal that the trial court committed error requiring reversal in considering
cohabitation for purposes of the moral fitness factor (f) in violation of Fletcher, supra and Truitt v
Truitt, 172 Mich App 38; 431 NW2d 454 (1988).4 However, we need not decide this issue, for even
considering factors (e) and (f) in defendant’s favor as was done by the trial court, we conclude that the
evidence was not sufficiently clear and convincing to justify a change from what the trial court found was
an established custodial environment of joint physical custody in both parents to sole physical custody
with defendant.
The overriding concern in custody disputes is, of course, the welfare of the child. Harper v
Harper, 199 Mich App 409, 417; 502 NW2d 731 (1993). Where, as in the instant case, the best
interest factors are scored almost equally, we are reminded of the admonition that the process of
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reviewing custody decisions is a qualitative, not quantitative decision. Heid v Aaasulewski (After
Remand), 209 Mich App 587, 594; 532 NW2d 205 (1995). The stringent burden of proof – clear
and convincing evidence – required to change an established custodial environment, was intended by the
Legislature “to minimize the prospect of unwarranted and disruptive change of custody orders and to
erect a barrier against removal of a child from an ‘established custodial environment’, except in the
most compelling cases.” Baker v Baker, 411 Mich 567, 577; 309 NW2d 532 (1981) (emphasis
added). See also Carson v Carson, 156 Mich App 291, 301-302; 401 NW2d 632 (1986).
As noted previously, the trial court herein found that Brian’s best interest warranted sole
physical custody with defendant. Reviewing the record with the exacting standard of clear and
convincing evidence in mind, we conclude that the court’s ultimate custody ruling, changing the
established custodial environment, constituted an abuse of discretion.
The evidence of record established that Brian attended a four-day-a-week, morning headstart
program in Owosso and also attended an afternoon daycare program provided by defendant’s school.
During the weeks he spent with his father, Brian was in daycare at a licensed facility. Defendant shared
a home in Owosso with her self-employed new husband, his two children by a previous marriage, and
Brian. Plaintiff continued to live in Cadillac with his fiancée and her three children in a home that they
owned together. The testimony at the hearing was consistent in two important respects – the parties
were “two good parents,” and more significantly, their child, Brian, was characterized by all witnesses
as a very happy little boy with no emotional problems. In light of the fact that the parties have shared
custody of Brian for three out of the past four years, the testimony adduced at the hearing indicated that
Brian had adapted well to the shared custody arrangement and had a close, loving relationship with both
parents. By all accounts, the child has thrived in the shared custody arrangement.
A showing of marginal improvement in the child’s life is not enough to satisfy the burden of clear
and convincing evidence and open the door for a change in custody. Carson, supra at 301. In the
instant case, the evidence of record does not reflect the requisite compelling circumstances that would
justify upsetting the established custodial environment, which currently consists of joint physical custody
between the parties. We conclude that the trial court abused its discretion in modifying this
arrangement. We therefore reverse the decision of the trial court, reinstate joint legal and joint physical
custody of the parties, and remand for the establishment of a new parenting schedule consistent with this
opinion and the circumstances of the parties.
Reversed and remanded. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Gary R. McDonald
/s/ Helene N. White
1
MCL 722.23; MSA 25.312(3) provides:
As used in this act, “best interests of the child” means the sum total of the following factors to
be considered, evaluated, and determined by the court:
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(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.
(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.
(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.
2
An established custodial environment exists if
[o]ver 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).]
3
MCL 722.27(1)(c); MSA 25.312(7)(1)(c) provides in pertinent part:
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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.
4
In Truitt, supra at 46, this Court held that “[s]tanding alone, unmarried cohabitation is not enough to
constitute immorality under the Child Custody Act.” In Fletcher, supra at 885-888, this Court held
that extra-marital conduct unknown to the child or children did not, as a matter of law, bear on the
moral fitness factor.
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