CHARLES WALDROUP III V DORIS LEMCOOL
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLES WALDROUP, III,
UNPUBLISHED
June 12, 2001
Plaintiff-Appellee,
v
No. 230397
Otsego Circuit Court
LC No. 97-007401-DS
DORIS LEMCOOL,
Defendant-Appellant.
Before: Cavanagh, P.J., and Markey and Collins, JJ.
PER CURIAM.
Defendant appeals as of right from an order awarding physical custody of the parties’
minor child to plaintiff. We affirm.
Defendant first argues that the trial court’s failure to hold an evidentiary hearing and rule
on the question whether proper cause or a change in circumstances warranting modification of
the custody award was shown, before allowing evidence regarding a best interests analysis, was
error requiring reversal. Questions of law in custody cases are reviewed for clear legal error.
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). A trial court commits clear
legal error when it incorrectly chooses, interprets, or applies the law. Id. We review a trial
court’s findings of fact in a child custody proceeding to determine if they are contrary to the great
weight of the evidence. Id.
MCL 722.27(1)(c) provides that a trial court may “[m]odify or amend its previous
judgments or orders for proper cause shown or because of change of circumstances.” This Court
has interpreted the requirement for a showing of proper cause or change of circumstances as
follows:
The plain and ordinary language used in MCL 722.27(1)(c); MSA
25.312(7)(1)(c) evinces the Legislature’s intent to condition a trial court’s
reconsideration of the statutory best interest factors on a determination by the
court that the party seeking the change has demonstrated either a proper cause
shown or a change of circumstances. It therefore follows as a corollary that where
the party seeking to change custody has not carried the initial burden of
establishing either proper cause or a change of circumstances, the trial court is not
authorized by statute to revisit an otherwise valid prior custody decision and
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engage in a reconsideration of the statutory best interest factors. [Rossow v
Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).]
Defendant maintains that the pretrial hearing in this case was not an evidentiary hearing
and that the order entered following that hearing, which stated that petitioner had established a
proper cause of change of circumstances, was entered on the recommendation of a referee whose
findings were based on allegations only. In actions tried without a jury, the trial court must find
the facts and state separately its conclusions of law regarding contested matters. MCR
2.517(A)(1); Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 176; 530
NW2d 772 (1995). Findings are sufficient if it appears that the trial court was aware of the issues
in the case and correctly applied the law. Id., citing MCR 2.517(A)(1) and People v Porter, 169
Mich App 190, 194; 425 NW2d 514 (1988).
Here, the order entered after the pretrial hearing plainly states that “[p]etitioner
established a proper cause or change in circumstances which warrants an evidentiary hearing on a
change in custody.” Further, the court referenced defendant’s frequent moves, her failure to
provide a stable environment, and her failure to facilitate a relationship between the minor child
and his father as the basis for its conclusion. Any challenge to the pretrial order and opinion
should have been made within the statutory period allowed under MCR 3.215(E). Moreover, at
the custody hearing, the trial court allowed proofs on both questions – proper cause or change in
circumstances, and change in custody – and then referenced the court’s adoption of the referee’s
recommendation in its opinion and order changing custody. A trial court may incorporate
findings and conclusions made in prior opinions and orders. Lud v Howard, 161 Mich App 603,
614; 411 NW2d 792 (1987). The brevity of the findings on proper cause or change in
circumstances was not error because the order was definite and pertinent, and it appears that the
trial court was aware of the issues in the case and correctly applied the law. Triple E Produce
Corp, supra. Appellate review would not be facilitated by requiring further explanation. Id.
Defendant further contends that the court erred because intrastate moves and disputes
regarding visitation do not constitute proper cause or change in circumstances such that the court
could consider a change in custody. However, plaintiff’s allegations centered not on defendant’s
intrastate moves, but instead on whether their frequency denied the child a stable environment,
thus distinguishing this case from Dehring v Dehring, 220 Mich App 163, 166-167; 559 NW2d
59 (1996). Further, the parties’ disputes over visitation went beyond those discussed in Adams v
Adams, 100 Mich App 1; 298 NW2d 871 (1980). Plaintiff also established that defendant
actively undermined the relationship between the minor child and plaintiff and that defendant’s
continued denial of plaintiff’s paternity adversely affected the minor child. The trial court’s
conclusion that there existed proper cause or change of circumstances sufficient to consider a
change in custody was not against the great weight of the evidence.
Defendant next argues that the trial court made findings against the great weight of the
evidence and clear error in its application of law to the best interests factors, and that the order
changing custody was an abuse of discretion. A custody decision is a discretionary ruling that is
reviewed under an abuse of discretion standard. Fletcher v Fletcher, 447 Mich 871, 881
(Brickley J.), 900 (Griffin J.); 526 NW2d 889 (1994). An abuse of discretion exists where the
result was so grossly violative of fact and logic that it evidences a perversity of will, a defiance of
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judgment, or the exercise of passion and bias. Id. at 879-880 (Brickley J.), 900 (Griffin J.). In
custody cases, the court’s discretion is constrained by the statutory best interests factors, MCL
722.23, but should be affirmed unless the evidence clearly preponderates in the other direction.
Id. at 878 (Brickley J.), 900 (Griffin J.).
Here, the court found in favor of plaintiff on factors b, e, g, h, j, and l, and found in favor
of neither party on factors a, c, d, and f. The court did not consider factor i, and factor k was not
at issue. MCL 722.23.
Considering first the factors that the trial court determined favored neither party, we find
no error. With respect to factor a, “[t]he love, affection, and other emotional ties existing
between the parties involved and the child,” MCL 722.23(a), while the lower court’s findings
were brief, the court considered testimony provided by both parties and such was sufficient to
satisfy the articulation requirements; the court was not required to comment on every matter in
evidence. Bowers v Bowers, 198 Mich App 320, 328; 497 NW2d 602 (1993). With regard to
factor c, the parties’ capacity and disposition to provide food, clothing, medical or other remedial
care, MCL 722.23(c), the court’s finding that “there was no credible testimony regarding either
party’s inability or disinclination to provide [the child] with food, clothing or medical care,” was
sufficient. It is the trial court’s duty to decide what weight to give each witness’ testimony,
Hilliard v Schmidt, 231 Mich App 316, 319; 586 NW2d 263 (1998), and we give considerable
deference to the court’s vantage point concerning issues of credibility. Thames v Thames, 191
Mich App 299, 305; 477 NW2d 496 (1991).
The friend of the court evaluator testified that 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(d), favored plaintiff because of the defendant’s frequent moves and her failure to
acknowledge that the moves could negatively affect the child. In concluding that this factor
favored neither party, the court considered both the stability and continuity of the minor child’s
environment. We find no error. Finally, defendant does not challenge the trial court’s finding
regarding factor f.
With respect to those factors that the court found weighed in plaintiff’s favor, we again
find no error. First, the court’s findings regarding factor b, the parties’ capacity and disposition
to give the child love, affection, and guidance, MCL 722.23(b), were supported by the evidence.
The court found that defendant’s continuing disrespect for authority provides a poor model for
the minor child, and that because the child was having difficulty in school both academically and
socially, plaintiff’s “more cooperative parenting style” would allow him to provide better
guidance and make informed and appropriate decisions regarding the minor child. We also find
no error in the court’s conclusion regarding factor e, “[t]he permanence, as a family unit, of the
existing or proposed custodial home or homes,” MCL 722.23(e). The trial court found that
plaintiff could provide a superior environment because of the stability of his job, his permanent
residence, and the presence of extended family to provide assistance and support. See Mogle v
Scriver, 241 Mich App 192, 200; 614 NW2d 696 (2000).
In making its determination that factor g, “the mental and physical health of the parties
involved,” MCL 722.23(g), favored plaintiff, the court focused on the mental health of the
parties. While the psychologist’s report indicated that both parties would benefit from individual
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psychotherapy, the report supports the court’s conclusion that plaintiff’s problems “paled in
comparison” to defendant’s “extreme and profound acrimony” toward plaintiff. The court’s
decision with respect to factor h, the child’s home, school, and community record, MCL
722.23(h), likewise was not against the great of the evidence. At the time of the review, the child
was not at an appropriate reading level, he had been caught stealing, and was suspended for three
days from school. Contributing to the problem was defendant’s attitude toward the child’s
teachers, which testimony indicated was confrontational, threatening, and disproportionate to the
problem. Although the school principal testified that there had been some improvement in the
relationship between defendant and the school, the trial court’s finding was not against the great
weight of the evidence.
Regarding factor j, the parties’ willingness and ability “to facilitate and encourage a close
and continuing parent-child relationship between the child and the other parent,” MCL 722.23(j),
we find no error in the court’s conclusion that defendant’s extreme hostility toward plaintiff
significantly limited plaintiff’s ability to maintain a close relationship with his child. The record
clearly establishes that defendant has continuously frustrated efforts to facilitate closer contacts
with plaintiff, resulting in her being found in contempt of court on four separate occasions.
We reject defendant’s argument that the court erred by not considering factor i, “[t]he
reasonable preference of the child,” MCL 722.23(i), and by not making a record of its interview
with the child to facilitate appellate review. As a general rule, a trial court must state on the
record whether a child was able to express a reasonable preference and whether that child’s
preferences were considered by the court, but need not violate the child’s confidence by
disclosing those choices. Fletcher v Fletcher, 200 Mich App 505, 518; 504 NW2d 684 (1993),
rev’d in part on other grounds 447 Mich 871 (1994); see also Hilliard, supra at 320-321.
Further, this Court has stated that the potential for misuse of the recorded statement which was
given in confidence by a distraught child far outweighs any possible benefit to a parent’s right to
appeal. Lesauskis v Lesauskis, 111 Mich App 811, 816-817; 314 NW2d 767 (1981).
With regard to factor l, “[a]ny other factor considered by the court to be relevant,” MCL
MCL 722.23(j), defendant contends that the court failed to consider the deep relationship the
minor child has with his half-sister. When determining child custody cases, the importance of
keeping siblings together is recognized and in most cases, maintaining this bond is in their best
interests. Weichmann v Weichmann, 212 Mich App 436, 439-440; 538 NW2d 57 (1995).
However, the sibling bond is not determinative of the best interests of a particular child. Id. at
440. Finally, defendant does not challenge the trial court’s finding that factor k, “[d]omestic
violence,” MCL 722.23(k), was not at issue.
The evidence in this case did not clearly preponderate against the circuit court’s decision
to award physical custody of the minor child to plaintiff. Accordingly, we find no abuse of
discretion.
Defendant’s final argument is that the trial court abused its discretion in scheduling
visitation. This Court reviews child visitation orders de novo, but will not reverse unless the trial
court made findings of fact against the great weight of the evidence, committed a palpable abuse
of discretion, or committed clear legal error. Deal v Deal, 197 Mich App 739, 741; 496 NW2d
403 (1993). The controlling factor is the best interest of the child and visitation will be granted if
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it is in the best interest of the child and in a frequency, duration, and type reasonably calculated
to promote a strong relationship between the parent and the child. Deal, supra at 741-742.
In establishing the visitation schedule, the court followed the recommendation of the
psychologist that the parenting schedule be reversed and that defendant’s visitation be in the
frequency, duration, and type previously awarded to plaintiff. The major difference between the
schedule set by the court in this case and the 46th Judicial Circuit recommendation is that it does
not incorporate every other weekend overnight visitation. In light of the record in this case, we
do not find the ordered visitation schedule to be an abuse of discretion.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Jeffrey G. Collins
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