JOSEPH G PENNINGTON III V WENDY JO PENNINGTON
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH G. PENNINGTON, III,
UNPUBLISHED
February 22, 2002
Plaintiff-Appellee,
v
No. 231378
Barry Circuit Court
LC No. 99-000693-DM
WENDY JO PENNINGTON,
Defendant-Appellant.
Before: Griffin, P.J., and Holbrook, Jr., and Hoekstra, JJ.
PER CURIAM.
Defendant appeals as of right from the order awarding plaintiff physical custody of the
parties’ minor child, following a hearing for change of custody. We affirm.
“All custody orders must be affirmed on appeal unless the trial court’s findings were
against the great weight of the evidence, the court committed a palpable abuse of discretion, or
the court made a clear legal error on a major issue.” Mixon v Mixon, 237 Mich App 159, 162;
602 NW2d 406 (1999), citing MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 876-877
(Brickley, J.), 900 (Griffin, J.); 526 NW2d 889 (1994); York v Morofsky, 225 Mich App 333,
335; 571 NW2d 524 (1997). The great weight of the evidence standard applies to all findings of
fact; a trial court’s findings with respect to the existence of an established custodial environment
and with respect to each custody factor should be affirmed unless the evidence clearly
preponderates in the opposite direction. Fletcher, supra at 879 (Brickley, J.); Phillips v Jordan,
241 Mich App 17, 20; 614 NW2d 183 (2000). The abuse of discretion standard applies to the
trial court’s discretionary rulings; to whom custody is granted is such a discretionary disposition
ruling. Fletcher, supra at 879, 880 (Brickley, J.), 900 (Griffin, J.); Foskett v Foskett, 247 Mich
App 1, 5; 634 NW2d 363 (2001).
“A custody award may be modified on a showing of proper cause or change of
circumstances that establishes that the modification is in the child’s best interest.” LaFleche v
Ybarra, 242 Mich App 692, 695; 619 NW2d 738 (2000), citing MCL 722.27(1)(c); Dehring v
Dehring, 220 Mich App 163, 166; 559 NW2d 59 (1996). When a modification of custody would
change the established custodial environment of a child, the moving party must show the change
to be in the child’s best interest by clear and convincing evidence. MCL 722.27(1)(c); LaFleche,
supra at 696.
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Here, the parties agreed that a custodial environment had been established with
defendant. The trial court, in examining the best interest of the child, considered the factors
expressed in MCL 722.23. The trial court found that six of the twelve best interest factors
favored neither party, two favored defendant, two favored plaintiff, and one slightly favored
defendant. The trial court went on to say that “the real question is, can the reasonable preference
of a thirteen-and-a-half-year-old child provide clear and convincing evidence that a change of
custody is in the child’s best interest.” From this language, it is apparent that the trial court
found the child’s preference to be the significant factor in its determination.
On appeal, defendant contends that the trial court erred in its conclusions regarding three
of the factors, MCL 722.23(f), (h), and (j), and also erred in giving undue weight to the
preference of the child, MCL 722.23(i).
Defendant challenges the trial court’s finding that factor (f), which addresses the moral
fitness of the parties, weighed equally as to the parties. Defendant contends that the trial court
ignored certain testimony concerning the moral turpitude of plaintiff. However, the court is
under no obligation to comment on every piece of evidence presented or declare acceptance or
rejection of every proposition argued. Fletcher, supra at 883 (Brickley, J.); LaFleche, supra at
700. Because both parties offered evidence of immoral behavior, the trial court’s conclusion
concerning factor (f) is not against the great weight of the evidence.
Defendant also contends that the trial court erred in concluding that factor (j), the
willingness of each party to facilitate and encourage a continuing relationship with the other
parent, should be weighed equally. Again, as with the previously discussed factor, there was
evidence that both parties engaged in poor behavior regarding the matter considered by the
factor. On the record before us, we conclude that the trial court’s finding regarding this factor is
not against the great weight of the evidence.
Defendant further argues that the trial court erred in concluding that the child’s school
record, factor (h), should be weighed in favor of plaintiff. Concerning that factor, the trial court
stated “I’m weighting that factor in favor of the plaintiff due to the fact that it’s uncontroverted
that [the child] is not doing as well as he should be in school, and in fact this year is not doing
well at all and not performing up to his past standards.”
At trial, defendant testified that once she became aware the child was having trouble in
school, she went to the school to ascertain the problem. Defendant also arranged for the child to
receive tutoring at school and for him to go defendant’s sister’s home after school for help with
his homework. Defendant asserts that without a determination of how plaintiff could provide a
better environment for academic growth, it was error for the trial court to weigh this factor in
plaintiff’s favor.
We agree that ruling on the basis of a single picture of how the child was doing at the
time of trial is inappropriate, especially where defendant offered testimony that the child had
never done extremely well in school. Defendant was awarded custody of the child less than six
months before the trial court’s order to modify the judgment of divorce. It is unclear as to what
“past standards” the trial court was referring to at trial. Without some indication of how the
child’s progress rated against his past conduct, we find that the record does not support the trial
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court’s implicit conclusion that the child would do better in school when under the care of
plaintiff.
However, even if this factor should have been weighed evenly, or in favor of defendant,
that does not necessarily mean that the trial court abused its discretion in relation to its overall
decision to modify custody. Mathematical or near mathematical equality on the statutory factors
does not mean that a party has not satisfied its burden of proof because a court need not give
equal weight to all the factors, but may consider the relative weight of the factors as appropriate
to the circumstances. McCain v McCain, 229 Mich App 123, 130-131; 580 NW2d 485 (1998).
We therefore turn to the court’s determination regarding factor (i), the reasonable
preference of the child. This action to change custody began because the child told plaintiff that
he was unhappy living with defendant. Although plaintiff also testified that at some later point,
the child said that he did not want to go through with the change of custody proceedings, the trial
court interviewed the child and concluded that he was a “very unhappy child, profoundly
unhappy, profoundly upset” child. The court also noted that he “clearly expressed a preference
to be with his father. It’s a very strong preference.” When all other factors are weighted
relatively evenly between parties, the preference of a thirteen-and-a-half-year-old child may be
seriously considered, especially where the court finds the child to be unhappy and upset under
his current conditions. In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550 (1975)
(Where the question of custody is close, “an expression of preference by an intelligent, unbiased
child might be the determining factor in deciding what the ‘best interests’ of the child are.”).
Given the overall evidence, the trial court’s decision to modify custody was not an abuse of
discretion. Fletcher, supra at 879-880 (Brickley, J.); Foskett, supra.
Affirmed.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ Joel P. Hoekstra
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