KELLY FENNER V RONALD FENNER
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STATE OF MICHIGAN
COURT OF APPEALS
KELLY FENNER,
UNPUBLISHED
March 20, 2001
Plaintiff-Appellee,
v
No. 222976
Genesee Circuit Court
LC No. 91-169732-DM
RONALD FENNER,
Defendant-Appellant.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
In this child custody case involving defendant’s motion for a change of custody,
defendant appeals as of right from a family court order holding that he failed to establish proper
cause or a change of circumstances warranting analysis of the statutory best interests of the
children factors. We affirm.
Defendant first contends that the family court erred by ruling that no change in
circumstances was established because the court made such a determination prior to assigning the
matter to the referee for a hearing. In the context of a child custody proceeding, we review a
family court’s findings of fact to determine whether they contravene the great weight of the
evidence, a family court’s discretionary rulings for a palpable abuse of discretion, and questions
of law for clear legal error. MCL 722.28; MSA 25.312(8); Mogle v Scriver, 241 Mich App 192,
196; 614 NW2d 696 (2000). A court’s findings are against the great weight of the evidence if the
evidence clearly preponderates in the opposite direction. Mogle, supra. An abuse of discretion
exists when an unbiased person, considering the facts on which the court relied, would find no
justification or excuse for the decision. Detroit/Wayne Co Stadium Authority v 7631 Lewiston,
Inc, 237 Mich App 43, 47; 601 NW2d 879 (1999).
Defendant argues that the family court determined prior to the hearings conducted by the
referee that defendant established a change in circumstances warranting an analysis of the
children’s best interests. MCL 722.23; MSA 25.312(3). In its orders prepared on August 31,
1998 and September 17, 1998, however, the court made no finding of proper cause or a change in
circumstances. The court merely referred the matter to a referee for a recommendation regarding
change of custody, child support and parenting time. While defendant contends that throughout
the hearing, the parties and the referee were under the impression that a change in circumstances
already had been established, the record does not support defendant’s contention. Because our
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review indicates that the court at no time found that defendant had met his burden of establishing
a change in circumstances, MCL 722.27(1)(c); MSA 25.312(7), we reject defendant’s allegation
of error.
Defendant next asserts that the family court erred in determining that he failed to
establish either proper cause or a change in circumstances. The plain and ordinary language of
MCL 722.27(1)(c); MSA 25.312(7)(1)(c) evinces the Legislature’s intent that the statutory best
interest of the child factors should be considered only when a party seeking modification of a
custody order has demonstrated either proper cause or a change in circumstances. Consequently,
if the moving party fails to make such a preliminary showing, the family court “is not authorized
by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of
the statutory best interest factors.” Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874
(1994).
After reviewing the record, we find that the evidence presented did not clearly
preponderate against the family court’s finding that defendant failed to establish proper cause or
a change in circumstances, thereby precluding any analysis of the statutory best interest factors.
Mogle, supra; Rossow, supra. Several witnesses testified that the children appeared happy and
well adjusted in plaintiff’s care, and exhibited no signs of emotional or physical disorder. The
referee himself met with the children and characterized them as “absolutely delightful and . . .
very engaging.” For more than one year prior to entry of the court’s opinion and order, plaintiff
maintained a stable residence with Douglas Guffey, whom plaintiff planned to marry in June
1999. According to more than one witnesses’ testimony, plaintiff had ceased consuming
alcoholic beverages. While defendant, his mother, and his sister testified that just after the
parties’ divorce the children were often dirty and smelled bad when defendant picked them up
from plaintiff’s residence, these witnesses did not maintain that this situation continued at the
time of the hearings. Furthermore, while allegations of domestic violence loomed large
throughout the hearings, Guffey testified that he never saw plaintiff lose her temper or hit the
children.
Both the referee and the family court found that although plaintiff had numerous
relationships with different men, the relationships did not seem to adversely affect the children.
The court further found that plaintiff seemed to be maturing and getting her life in order. In light
of the existing record supporting the court’s determinations, we cannot conclude that the court’s
findings were against the great weight of the evidence.1 Mogle, supra.
Affirmed.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
1
While defendant claims that the mere fact that plaintiff previously moved to Florida itself was
sufficient to constitute a change of circumstances, we note that this Court has held that an
interstate change of residence does not suffice to warrant revisitation of the statutory best interest
factors. Dehring v Dehring, 220 Mich App 163, 165; 559 NW2d 59 (1996).
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