ROBERT L BREWER V RUTHANN D BREWER
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT L. BREWER,
UNPUBLISHED
August 21, 2001
Plaintiff-Appellant,
v
No. 221521
Wayne Circuit Court
Family Division
LC No. 98-820472-DM
RUTHANN D. BREWER,
Defendant-Appellee.
Before: Bandstra, C.J., and Whitbeck and Owens, JJ.
PER CURIAM.
Plaintiff appeals by leave granted1 from the circuit court’s order awarding defendant sole
physical and legal custody of the parties’ two minor children in the judgment of divorce. We
affirm.
I. Basic Facts And Procedural History
To say that the parties’ relationship was, and to some extent still is, turbulent is an
understatement. If defendant is to be believed, plaintiff physically and verbally abused her on
several occasions, threatened her with a knife once, made harassing calls to her, and even forced
her to have sex with him before their marriage ended. If plaintiff is to be believed, defendant was
unfaithful and, though he did not abuse her, their relationship was so confrontational and
stressful that he once pointed a knife at himself to illustrate that he thought she was killing the
marriage.
The breaking point for the parties came in June 1998. On June 25, defendant drove the
children to plaintiff’s parents’ home in Indiana, where the children planned to stay while the
parties went to Las Vegas for a second honeymoon. According to defendant, she knew that her
marriage was in trouble by this time, but she thought the vacation would help them. When
1
Plaintiff filed a claim of appeal, but the July 27, 1999, judgment of divorce did not resolve all
issues before the court, and thus was not a final order appealable as of right. MCR 7.204. This
Court treated the claim of appeal as an application for leave to appeal, and granted the
application.
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defendant returned to Michigan, plaintiff came out of the house and told her that she was no
longer welcome there. He had changed the locks and he wanted her to leave the property.
Defendant nevertheless entered the house, at which time, she said, plaintiff became “very
aggravated with me, very agitated with me that I had walked into the house.” When she entered
the house, defendant noticed that many of her possessions had been removed and placed in
garbage bags on the garage floor.
Defendant then went to a friend’s home. When defendant and her friend returned at
approximately 12:30 a.m., they discovered that plaintiff’s parents’ car was in the driveway, and
that there were lights on in the children’s bedroom. Defendant contacted the police to ask what
to do about the locks that had been changed and the fact that plaintiff was keeping her from her
children. The police met defendant at the house shortly after 1:00 a.m. Plaintiff did not answer
defendant’s knock at the door until he saw the police. Defendant said that plaintiff and his
brother attempted to prevent her from going to her children, which prompted the police to
instruct the two men to step aside numerous times. According to defendant, her younger child
was not asleep because of the commotion and, when she asked her child “if she wanted to come
with me . . . she said yes.” Plaintiff became upset when defendant took her daughter into her
arms. Defendant also asked the older daughter if she wished to come with her, but the child said
no.
Evidently, during this incident, plaintiff told his youngest child that he had locked
defendant out of the house because she took her “clothes off and g[o]t in bed with another man.”
Defendant admitted that she had come to know a man named Rick Shotwell. Shotwell had sold
her a car and, eventually, became her friend, but according to defendant they did not have an
intimate relationship.2 Plaintiff, however, believed that defendant was having an affair with
Shotwell. Ostensibly to monitor unauthorized uses of the parties’ telephone lines, plaintiff
purchased and set up a recording device on the parties’ home telephone. While defendant was on
her way to Indiana with the children, he listened to a recording that he had made with the device.
In the conversation, he heard defendant talking with Shotwell. According to plaintiff, this call
left him “devastated” because he interpreted their conversation to mean that they were having an
affair.
Plaintiff then packed defendant’s belongings, telephoned his brother, and arranged with
his father and brother to have the children returned home. Though defendant had purportedly
indicated that she would be home early in the evening, she did not arrive at home until nearly
11:00 p.m. Because of the telephone recording, plaintiff believed that defendant had been with
Shotwell during this time. Plaintiff confronted defendant with his suspicion that she was having
an affair, and asked her to leave. Because he was nervous that Shotwell had keys to the house, he
changed the locks. Plaintiff confirmed that the police appeared on the scene and that they
supervised while defendant took her younger daughter from the house. According to plaintiff,
his older daughter started crying because one of the officers had physically grabbed plaintiff.
2
Shotwell confirmed that he did not have a physically intimate relationship with defendant
before she separated from plaintiff.
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While the divorce action was pending, the family court granted joint legal custody to both
parents and physical custody to defendant. Plaintiff received significant, structured visitation.
The family court also ordered the parties and the children to participate in family therapy.
During this period, the parties arranged to drop off and pick up their children at a police
station because of their ongoing conflict with each other. This strain affected the children.
Though plaintiff agreed that the children should remain together, the parties’ oldest daughter had
changed from a loving and warm child to “kind of cold and distant since this has started.”
Plaintiff also continued to record calls at his home, including calls between defendant and the
children. Plaintiff said that the children knew they were being taped, but out of respect for their
privacy, he turned off the recording machine when they spoke with defendant. Still, there had
been “a couple of occasions” when he heard taped conversations of the children talking with
defendant, who apparently was unaware that he was recording the calls.
Defendant said that, despite their separate living arrangements following the night of
June 25, plaintiff continued to harass her. Shotwell said that, while he was at a bar with
defendant on June 29, 1998, at approximately 11:30 p.m., plaintiff appeared with the parties’
older daughter in tow. Plaintiff took a photograph of Shotwell and defendant. According to
Shotwell, plaintiff “was yelling at the top of his lungs at 11:30 at night about her being in a bar
and having a drink with me” and, during this incident, the child seemed “scared and agitated.”
Once, plaintiff also allegedly confronted defendant and the children at a post office, demanding
to know about Shotwell’s visit to defendant’s home over the weekend. He reportedly “told the
children that if Mr. Shotwell would ever come near them again to call the police, dial 9-1-1 and
tell them that he had sexually molested them.” According to defendant, on this occasion plaintiff
struggled with the children and called defendant obscene names even though the children had
met Shotwell only briefly at the car dealership where he worked and over the weekend at the
barbecue. On another occasion, plaintiff called the police to report that defendant had left the
children alone at her home because, when he knocked on the door, the babysitter declined to
answer it for him. During the course of this litigation, defendant obtained two personal
protection orders against plaintiff.
At the trial, the parties attempted to cast doubt on each other’s parenting skills while
emphasizing their own role as a good parent. For instance, plaintiff alleged that defendant had
caused their older child to develop asthma by smoking around the child, but conceded he had not
taken his daughter to a doctor to confirm his suspicion. In contrast to defendant, he claimed, he
had taught the children how to walk, how to bathe and groom themselves. He also provided the
children with “[r]eligious activity from the time which they were able to start to understand.”
Plaintiff added that he took the children to church every weekend that he had them. He described
himself as the parent who primarily helped the children with their homework and prepared their
meals.
In terms of discipline, plaintiff stated that he preferred to give the child an opportunity to
confess having done a wrong and propose a response. He had spanked each child only three or
four times, adding that a “spank” was a “pat on the butt” that “is not hard.” In contrast, plaintiff
said that defendant also spanked the children, describing the practice as “more of a swing, . . .
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usually hit[ting] them on their arms or back side or on their legs.” Plaintiff protested this
discipline and “would have her stop” when he observed defendant do this.
Plaintiff also became aware that the children had been “hit” when he picked them up in
October3 and found one of the girls in tears. Plaintiff learned that one child had been hit on the
face and on the legs, which prompted him to seek custody. Plaintiff had also observed various
bruises on the children, on their legs and elbows, and had learned that a babysitter had inflicted
these injuries. Plaintiff discussed the matter with defendant, asking that the babysitter not be
allowed to discipline the children specifically, and that the children not be subject to corporal
punishment generally.
Asked if he had continued to be involved in the children’s T-ball and softball activities,
plaintiff replied that he had not because defendant “told the children that they were not going to
participate on my teams any longer because she wasn’t going to allow them to see their father.”
Defendant, who had been a coach for the children in the past, confirmed that “because of the
situation” she did not allow the children to play softball where plaintiff would be the coach. She
emphasized that she did not wish to have contact with plaintiff, explaining, “every time I’m
around him he creates a scene . . . or does something detrimental and I don’t want to put my
children [through] any further of that . . . .”
Professionals at the children’s school were aware of the problems at home. The older
child reported to Nicole Munoz, a counselor, that defendant had hit her younger sister. Munoz
examined the child and observed a faint, thumbnail-sized mark on the child’s leg that was not
really a bruise, but “kind of a red area.” Accordingly, Munoz reported the incident to protective
services.4 The older child also reported to Munoz that she had overheard conversations
suggesting that defendant was having an affair. Further, the older child said that plaintiff had
taken her where this man, evidently Shotwell, worked, and that they had a verbal confrontation.
Cheryl Nowicki, one of the younger daughter’s school teachers, downplayed the child’s need for
help with her reading though plaintiff had emphasized his efforts to help his daughter in this area.
Nowicki said the child “had practiced her vocabulary and seemed to do better with her
vocabulary” when with plaintiff, but her impression was that plaintiff was engaging in excessive
displays of involvement in his children’s schooling for the sake of strengthening his custody
case.
The family court also heard extensive expert testimony. Suffice it to say, the experts
observed that the parties essentially were locked in battle over the children. Both parties’ experts
observed the stress the children were experiencing, though they disagreed whether the children
were attached more to one parent than the other and if any such attachment was natural or due to
parental pressure. Although it was an extremely close call, the expert the family court appointed
to make a recommendation on custody suggested that plaintiff should have physical custody.
3
Apparently, October 1998.
4
Evidently, protective services was not able to substantiate that any abuse occurred.
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In its findings of fact, the family court concluded that the events leading up to the parties’
separation destroyed any established custodial environment for the children. Considering the
individual best interests factors, the family court awarded sole physical and legal custody to
defendant on the basis of the preponderance of this evidence. On appeal, plaintiff contests the
family court’s determination that, at the time of the divorce, the children did not have an
established custodial environment with him, as well as the family court’s findings concerning
several of these best interest factors, in order to argue that the family court erred in awarding
physical and legal custody of the children to defendant.5
II. Standard Of Review
In custody cases, “[f]indings of fact are to be reviewed under the ‘great weight’ standard,
discretionary rulings are to be reviewed for ‘abuse of discretion,’ and questions of law for ‘clear
legal error.’”6 “[I]f the trial court’s view of the evidence is plausible, the reviewing court may
not reverse.”7
III. Custodial Environment
The parties dispute whether an established custodial environment existed because
resolution of this issue affects the standard of proof necessary to support the family court’s
decision to award defendant physical custody. If an established custodial environment exists, a
family court may not change custody unless there is clear and convincing evidence that a change
is in the children’s best interests.8 However, if there is no established custodial environment, a
family court may award custody on the basis of a “mere preponderance of the evidence,” which is
the standard the family court applied in this case.9
The Legislature has defined the factors that are relevant to determining whether an
established custodial environment exists:
The 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.[10]
5
This Court granted defendant’s motion to strike the other issues plaintiff raised in his brief on
appeal. Brewer v Brewer, unpublished order of the Court of Appeals, entered August 28, 2000
(Docket No. 221512).
6
Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889 (1994), quoting MCL 722.28.
7
Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990).
8
See Ireland v Smith, 451 Mich 457, 461, n 3; 547 NW2d 686 (1996), quoting MCL 722.27(c).
9
Baker v Baker, 411 Mich 567, 579; 309 NW2d 532 (1981).
10
MCL 722.27(1)(c).
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The Michigan Supreme Court has interpreted this statutory language, noting:
Such an environment depend[s] . . . upon a custodial relationship of a
significant duration in which [the child is] provided the parental care, discipline,
love, guidance and attention appropriate to his age and individual needs; an
environment in both the physical and psychological sense in which the
relationship between the custodian and the child is marked by qualities of security,
stability and permanence.[11]
Plaintiff now claims that the family court erred in concluding that the custodial
environment that both parties had established with the children through the course of their
marriage had been destroyed simply because plaintiff filed for divorce. However, we conclude
that irrespective of plaintiff’s decision to file for divorce, the children’s lives were upset in such a
complete way in the two or so years leading up to the divorce judgment that they lacked the sort
of “security, stability and permanence” that are the hallmarks of an established custodial
environment.12
On June 25, 1998, the children were exposed to the conflict between their parents late at
night under disturbing circumstances, not the least of which was being asked to decide with
which parent they wished to stay while the police attempted to control the situation. For months
after the separation, the children were eyewitnesses to their parents’ combative and highly
inappropriate behavior. Plaintiff took the children with him while he confronted and then
surveilled defendant. He also, in what appears to be an unsettling incident, gave his older
daughter his wedding band to keep safe for him and asked her to convey a message to defendant
about this. Defendant threatened to take the children out of state and barred plaintiff from
becoming involved in their after school activities. As Nowicki and one of the psychological
experts observed, each parent attempted to use the children to support their own cause in the
custody dispute at the expense of the children’s relationship with the other parent. The other
adults who met with these children all noted the emotional toll these children experienced as a
result of these circumstances and their parents’ actions, even if the parents were not aware of the
effect that they were having on their daughters. Despite this ample evidence, plaintiff does not
provide any evidence to contradict the logical conclusion that these events caused the custodial
environment that existed before the parties’ separation to cease. Consequently, we have no cause
to disagree with the family court’s determination that there was no established custodial
environment.
Plaintiff alternatively argues that even if the family court correctly found that the original
custodial environment with both parties had been destroyed, the court then erred in not finding
that in the months thereafter the children established a custodial environment with him. Plaintiff
relies heavily on his psychological expert, who testified that the children looked primarily to
plaintiff as their caregiver. However, the family court discounted this witness’ credibility, as was
11
Baker, supra at 579-580.
12
Id. at 580.
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its right.13 Even if the family court had not discounted this testimony, there was ample
competing evidence on the issue of the relationship between each party and their children as it
related to the custodial environment. For instance, the expert the court appointed to make a
custody recommendation also concluded that each party interacted well with each child. This
expert and numerous other witnesses believed that the children were torn between their loyalties
to both parents, arguably because of the way each party used the children against the other.
Though the evidence suggests that plaintiff was especially close to the older child, this
bond existed because he used the child as a confidant, causing the child to develop an excessive
concern for his well being at the expense of her relationship with defendant. Parents and children
are not typically presumed emotional equals. Rather, it is the parent’s job to care for the child’s
emotional needs, which neither party did with any particular amount of success in the time
leading to the divorce. Moreover, the way the older child tended to care for her younger sister,
speaking for her and seeking out Munoz when she believed that her younger sister had been hurt,
suggests that the older child had, in some respects, more of a parental relationship with the little
girl than either party. Taking this evidence as a whole, the family court properly recognized that
no established custodial environment existed and that the preponderance standard therefore
applies to the best interests factors.
IV. Best Interest Factors
A. Legal Standards
MCL 722.23 sets forth twelve factors that the family court had to consider14 when making
the custody decision in this case:
(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 the 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.
13
See Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d
733 (1996).
14
See MCL 722.25(1) (“If a child custody dispute is between the parents, . . . the best interests of
the child control.”).
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(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.[15]
“The trial court must consider each of these factors and explicitly state its findings and
conclusions regarding each.”16 However, “[b]rief, definite, and pertinent findings and
conclusions on the contested matters are sufficient, without overelaboration of detail or
particularization of facts.”17 In custody cases, a family court is not obliged to “‘comment on
every matter in evidence or declare acceptance or rejection of every proposition argued.’”18
The family court in this case found that factors (b), (f), (g), (j), and (k) favored defendant,
that factors (h) and (i) favored plaintiff, and that parties were equal concerning factors (a), (c),
(d), (e). With respect to factor (l), the court expressed concern about the “use of psychologists or
the war of the experts,” but did not appear to favor either party. Plaintiff takes issue with the
family court’s findings concerning factors (a), (b), (c), (d), (f), (g), and (j). We address each in
turn, noting at the outset that the family court’s ability to assess witness credibility in the face of
competing evidence and expert testimony strongly favors affirming under this great weight of the
evidence standard.19
15
MCL 722.23.
16
Bowers v Bowers, 198 Mich App 320, 328; 497 NW2d 602 (1993).
17
MCR 2.517(A)(2).
18
Fletcher, supra at 883, quoting Baker, supra at 583.
19
See Zeeland Farm Services, supra at 195.
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B. Emotional Ties: Factor (a)
Plaintiff contends that the family court should have found that factor (a) favored him
because the court-appointed expert concluded that defendant’s interaction with the children was
“a little bit problematic.” We disagree. The expert also stated that this concern “wasn’t of
extreme significance,” and explained that the interaction between each parent and both children
was good. Thus, although the expert stated that the children experienced plaintiff “as the parent
who is more nurturing and more caring and more loving,” and added that the children were very
close to, and bonded with, plaintiff, these indications suggest, at best, only a slight advantage to
plaintiff in this regard.
Of greater concern are the disturbing suggestions from defendant’s expert. Plaintiff
emphasizes that defendant’s expert described a very close relationship between plaintiff and the
children, particularly his older daughter. However, defendant’s expert also concluded that
plaintiff had pressured his older daughter to side with him against defendant, and suggested that
plaintiff’s habit of confiding in the child about marital matters had injured her relationship with
defendant. The witness characterized the older daughter’s relationship to plaintiff as that of
“caretaker and confidant.” Thus, while there is a strong emotional tie between plaintiff and his
older daughter, it is not necessarily the sort of relationship that MCL 722.23(a) seeks to credit
and preserve in custody decisions. As a whole, plaintiff has failed to show that the evidence
militates so heavily in his favor for this factor that the family court’s finding that the parties are
equal in this regard went against the great weight of the evidence.
C. Love, Affection, And Guidance: Factor (b)
The family court stated that both parents had the capacity to provide educational and
religious guidance, but concluded that the evidence nevertheless favored defendant under factor
(b). Plaintiff suggests that there is something internally illogical about this finding, as if children
can look only to one parent for love, affection, guidance generally, and educational and religious
guidance specifically. Yet, nothing in factor (b) required the family court to conclude that only
one parent had these valuable parenting qualities. Rather, the pertinent inquiry is whether one
party, according to a preponderance of the evidence, has the better capacity to provide this sort of
support overall.
The evidence does not overwhelmingly favor one parent over the other on this factor.
Though plaintiff emphasizes that defendant had subjected the children to inappropriate corporal
punishment, including striking them in anger, the family court gave credit to expert testimony
that this tendency was not constant, severe, nor continuing. The family court thus had an
evidentiary basis for weighing this consideration only slightly, not heavily, against defendant.20
20
Although the record does suggest that defendant had exercised some poor judgment in
disciplining the children, the record does not support plaintiff’s characterization of what took
place as physical abuse.
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The family court’s expert also reported that defendant resorted to “some sarcasm” when
dealing with the children, and that when the younger daughter expressed confusion when
defendant attempted to help her with a puzzle, defendant “insisted that she wasn’t being
confusing.” However, the expert preceded his expressions of concern with the disclaimer, “it
wasn’t of extreme significance.” These imperfections are insufficiently weighty to throw the
family court’s findings into doubt.
Plaintiff emphasizes that the family court recognized that defendant relied more heavily
on babysitters than did plaintiff to illustrate that the court erred in failing to take the need for
daycare into account for this factor. However, we can envision only a very indirect link between
the need to rely on babysitters and a parent’s “capacity and disposition”21 to provide love,
affection, and guidance for her children. Further, there is no evidence that defendant has wholly
abdicated her influence over these area of her children’s lives to babysitters, or that she has
stopped loving or showing affection to the children because she needs help caring for the
children while she works. In fact, the record suggests that defendant has attempted to arrange her
work schedule to maximize her time with the children, arranging for them to be with their father
on the weekends when she has work when possible. She has also given up a job with benefits so
that she can have a more flexible schedule. Plaintiff’s work schedule simply fits more easily
with a regular school day, making it less necessary for him to arrange for babysitters or other
caretakers if he had custody of the children. As a whole, when considering the need for
babysitters, this factor would weigh in plaintiff’s favor slightly, if at all.
Plaintiff also argues that the family court failed to account for defendant’s plan to move
to Arizona, including defendant’s lack of knowledge of details concerning class schedules, and
other details of school district organization. However, the family court denied without prejudice
defendant’s request for a change of domicile, allowing defendant to raise the issue again at a
future date. Without any definite, current plans to move to Arizona, the fact that defendant has
yet to investigate schools there is not a significant failure. We have no reason to assume that, if
defendant does move to Arizona with the children, she will be unable to find appropriate schools
for them.22
More importantly, though plaintiff appears to be benefiting from counseling, the evidence
supports the trial court’s conclusion that plaintiff has had problems putting the children’s
emotional and psychological needs above his own. Plaintiff demonstrated this difficulty by,
among other things, repeatedly exposing the children to overtly hostile confrontations with
defendant and Shotwell, and bringing the children with him when he filed police reports against
defendant and while he was tracking Shotwell. Plaintiff also repeatedly interrogated the children
about defendant’s activities and tried to use the school environment to further his efforts to
discredit defendant with the children and others. Thus, while we do not doubt that plaintiff loves
his children and shows affection for them, and that they love him in return, we must also
acknowledge that the record reflects that he sometimes lacks the restraint necessary to show that
21
MCL 722.23(c).
22
See Adams v Adams, 100 Mich App 1, 14; 298 NW2d 871 (1980).
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love and affection in a way that benefits the children rather than exposing them to situations that
can harm them emotionally.
Plaintiff complains that the family court put too much emphasis on his poor behavior in
the first three months after filing for divorce. However, plaintiff cites no authority for the
proposition that a court must consider a party’s conduct in the months immediately following
marital breakdown separately from other behavior. We observe that a party’s behavior in an
emotionally stressful situation can be a valuable indicator of that party’s capacity to meet
parenting challenges. In this case, plaintiff does not attack any of the family court’s specific
factual findings, thus waiving any challenge to them on appeal.23 For these reasons, we affirm
the trial court’s conclusion that defendant gets the advantage on factor (b).
D. Material Necessities: Factor (c)
Plaintiff contends that he is in a better position to provide for the children’s material
needs and, therefore, the family court erred in concluding that he and defendant were equal under
this factor. In making this argument, he stresses that defendant admitted that she had been
terminated from her employment on three occasions in the past. However, he fails to identify
any evidence demonstrating that defendant’s present job as a hospital nurse is anything but
secure. Nor has he provided any authority holding that a family court must presume, on the basis
of past job insecurity, that a parent will again be fired, jeopardizing that parent’s abilities to
provide for the children’s material needs.
Plaintiff also relies on the possibility that defendant may move to Arizona, but has not
sought employment there, to suggest that her financial future and, therefore, the children’s
material needs, will be jeopardized. However, again, defendant and the children could move to
Arizona only with the family court’s permission at some future date, at which time defendant’s
job prospects in the new location would become relevant. They are not relevant now.
Accordingly, plaintiff has not shown that the family court erred in not finding him more likely to
be able to provide the children with material necessities than defendant. There is no reason to
conclude that the family court erred in finding the parties equal on factor (c).
E. Home Environment: Factor (d)
Plaintiff takes issue with the fact that the family court stated that defendant did not
provide a stable and satisfactory environment for the children, yet concluded that factor (d)
favored defendant as much as it favored plaintiff. He contends that this was logically
inconsistent. We disagree. The family court plainly found plaintiff’s home environment
deficient as well. This was not a case of the family court overlooking defendant’s shortcomings
to find her home a superior place to raise children and ignoring the environment plaintiff had to
offer to conclude that he would not be able to offer an adequate environment. Rather, the family
23
See MCR 7.212(C)(7); In re Hamlet (After Remand), 225 Mich App 505, 521; 571 NW2d 750
(1997) (“A party may not merely announce a position and leave it to us to discover and
rationalize the basis for the claim.”).
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court had to consider two imperfect environments. Plaintiff’s argument that defendant’s desire to
move to Arizona one day would destroy the continuity of the home environment for the children
has no merit, again, because the move is merely speculative. Even if the move were imminent,
the evidence suggests that there was little continuity in the children’s existing home environment
to disturb. For these reasons, the family court did not err in declining to find that this factor
favored plaintiff.
F. Moral Fitness: Factor (f)
Plaintiff argues that the family court was too forgiving of defendant’s extramarital sexual
behavior and therefore erred when it found that factor (f) favored defendant “overwhelmingly.”
The parties’ sexual conduct is relevant to this factor only insofar as it affects the parent-child
relationship.24 As the Michigan Supreme Court commented, “[T]he 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.”25 Furthermore,
[e]xtramarital relations are not necessarily a reliable indicator of how one will
function within the parent-child relationship. While such conduct certainly has a
bearing on one's spousal fitness, it need not be probative of how one will interact
with or raise a child. Because of its limited probative value and the significant
potential for prejudicially ascribing disproportionate weight to that fact,
extramarital conduct, in and of itself, may not be relevant to factor f. To the
extent that one’s marital misconduct actually does have an identifiable adverse
effect on a particular person's ability or disposition to raise a child, those parental
shortcomings often may be reflected in other relevant statutory factors.[26]
In this case, whether defendant actually had a romantic or intimate relationship with
Shotwell before her separation is in dispute. Consequently, the moral dimensions to this
relationship are more cloudy than plaintiff would have us believe.27 In any event, the evidence
indicates that defendant brought her children into contact with Shotwell twice before the divorce.
Both times the meetings were under benign circumstances: once in passing at the dealership
where he worked, and once when defendant hosted a barbecue with many other guests. There is
no evidence that, for example, defendant neglected the children because of her entanglement,
24
Fletcher, supra at 887.
25
Id.
26
Id.
27
Evidently, accusations concerning infidelity are longstanding in their relationship. Defendant
alleged to the court-appointed expert that she suspected that plaintiff had had an affair early in
their marriage and that he had admitted to kissing this other person, but no more. Plaintiff also
indicated that others had questioned whether he was the biological father of his younger
daughter, who evidently has different coloring. However he added that he had no interest in
pursuing the issue further because he had always considered the little girl his daughter.
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whatever its nature, with Shotwell, or that she might encourage the children to engage in immoral
conduct in the future, using her own conduct as a model. In contrast, as the family court noted,
plaintiff steadily attempted to bring defendant’s infidelity to the children’s attention, often in
ways that were distressing to the children. Though plaintiff notes that one child reportedly found
defendant in bed with another man on one occasion, that evidence came from plaintiff’s expert,
whose credibility the trial court discounted.28
Plaintiff also relies on the evidence that defendant had occasionally subjected the children
to inappropriate corporal punishment. However, the evidence nonetheless did not indicate that
this was an immoral pattern of conduct that would be considered dispositive under this factor
when considering the evidence of plaintiff’s misconduct, which also affected his children.
Plaintiff thus fails to show that the trial court erred in favoring defendant overwhelmingly on this
factor.
G. Mental And Physical Health: Factor (g)
Plaintiff contends that defendant’s use of corporal punishment made the family court’s
finding that factor (g) favored defendant erroneous. As discussed above, the trial court afforded
this evidence the weight it was due.
Plaintiff also contends that there was evidence that defendant was mentally unhealthy
when she sought counseling for the children without disclosing to the counselor that the parties
shared legal custody at the time and told the counselor in front of the children that she was
worried about the emotional and psychological effects plaintiff had on the children. We do not
see a connection between these events and defendant’s mental health.
Plaintiff observes that, for a time, defendant kept the children indoors when they wished
to play outdoors. Although defendant’s explanation that she did not wish to subject the children
to the neighborhood gossip about the divorce may not be entirely satisfactory, or reflect the best
judgment, we do not see the connection between that parenting decision and defendant’s mental
health.
In contrast, plaintiff presents no argument to rebut family court’s finding that plaintiff had
exhibited many behaviors that called his mental health into question. For instance, plaintiff had a
very emotional reaction to the breakdown of his marriage, he turned to his older, though still
young, daughter for emotional support as if she were an adult, and he involved the children in
confrontations with defendant and Shotwell.29 While his disappointment, hurt, and even anger at
the dissolution of his relationship with defendant is understandable, the way he involved his
children in acting on those emotions certainly calls into question his ability to control his
28
Zeeland Farm Services, supra at 195.
29
The children may have also heard or observed his confrontations with defendant that bordered
on violence well before the parties’ separation.
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emotions in the future to protect his children’s emotional well-being. Thus we have no reason to
disagree with the family court’s findings concerning factor (g).
H. Facilitating The Relationship With The Other Parent: Factor (j)
Plaintiff contends that the family court erred in concluding that factor (j) favored
defendant, pointing to defendant’s refusal to allow the children to participate in softball when
plaintiff would have been their coach and to her interest in moving to Arizona. Defendant
plainly admitted that she kept the girls from playing organized softball specifically because
plaintiff would be their coach. However, she justified this decision on the ground that she
wished to avoid confrontations with plaintiff. If that were her chief concern, defendant may have
been able to arrange to have someone else transport the children to and from softball practices
and games. This evidence does suggest that defendant has only a grudging willingness to allow
plaintiff to spend time with his children. As for moving to Arizona, as we have already
discussed, this move is mere speculation, and not a present concern affecting custody. The
family court thus properly declined to presume that a move would take place, while respecting
the possibility that defendant may some day show proper reason for doing so.
As unenthusiastic as defendant may be in encouraging her children to have a relationship
with plaintiff, there is more evidence that plaintiff has endeavored overtly to damage the
relationship between the children and defendant. The family court cited plaintiff’s history of
exposing the children to his extreme actions and statements disparaging defendant, of
interrogating the children about defendant’s actions, and of recording their conversations with
her. Though plaintiff argues that the family court improperly emphasized his conduct during the
initial stages of the separation, we again note that he has not provided any authority for the
proposition that conduct during this phase should be inconsequential to the family court’s
consideration. From a logical perspective, we think it highly unlikely that plaintiff could provide
such authority because this evidence is directly related to his willingness to facilitate the
children’s relationship with their mother. While plaintiff’s emotions may have cooled somewhat
since then, the record does not lead us to conclude that the family court gave this conduct undue
emphasis or failed to view it in the context of the stress of the situation. For these reasons,
plaintiff has failed to show that the trial court erred in weighing this factor in favor of awarding
physical custody to defendant.
V. Conclusion
We do not intend for our analysis in this case to imply that plaintiff is a bad parent or that
his children’s affection for him is anything but genuine. Nor do we wish to suggest that
defendant is a perfect parent who needs no improvement in her parenting skills. Rather, this case
is particularly close because of the high emotions involved and the complicated interactions the
parties have had with each other since their separation. Nevertheless, under the legal standards
we must apply, we must extend great deference to the family court in the factual matters this
appeal raises. We are not blind to the conflicting evidence on the record. However, that there is
such a significant conflict reinforces the observation that trial courts tend to have a better view of
the evidence when credibility becomes an issue. Plaintiff simply has failed to provide the
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quantum of proof necessary for us to reverse the family court’s findings underlying its custody
decision, and therefore the custody decision itself.
Affirmed.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
/s/ Donald S. Owens
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