AMY BIZEK V JOHN BIZEK
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STATE OF MICHIGAN
COURT OF APPEALS
AMY BIZEK,
UNPUBLISHED
July 22, 2004
Plaintiff/CounterdefendantAppellant,
v
No. 254039
Wayne Circuit Court
LC No. 02-200653-DM
JOHN BIZEK,
Defendant/CounterplaintiffAppellee.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Plaintiff Amy Bizek appeals as of right an order granting defendant John Bizek sole
physical custody of the parties’ minor child, Haley Bizek. Plaintiff contends that the trial court
erred in ordering a temporary change of custody without conducting an evidentiary hearing,
improperly weighed the best interest factors, and improperly denied her motion to disqualify
Judge Maria Oxholm. We affirm.
I. Facts and Procedural History
The parties entered a Consent Judgment of Divorce in September of 2002. Against the
reservations of the trial judge, the parties agreed to split custody of their two young children,
Kyle and Haley Bizek, with plaintiff retaining physical custody of Haley and defendant of Kyle.
Six months later, defendant filed a motion seeking a change of custody and enforcement of the
visitation schedule. Specifically, defendant complained that plaintiff refused to allow his
visitation with Haley and withheld information that she was living with her boyfriend, Steven
Hayse at the time the judgment was entered.1 Plaintiff filed a countermotion seeking custody of
Kyle alleging that defendant failed to adequately provide for Kyle’s medical and educational
needs. Defendant withdrew his motion to modify the custody order and the trial court denied
both motions. However, the trial court expressed its concern over allowing a parent to live with
1
Defendant admitted at a later date that he knew of plaintiff’s living arrangement at the time of
the divorce.
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an unrelated person of the opposite sex within one year of entering into a divorce. The trial court
specifically asked plaintiff if Mr. Hayse had “any criminal record,” and plaintiff responded that
she was unaware of any.2
In June of 2003, defendant filed an emergency motion to modify parenting time upon his
recent discovery that Mr. Hayse was a registered sex offender. Seven years prior, Mr. Hayse
pleaded nolo contendere to a fourth degree criminal sexual conduct (CSC) charge in relation to
an incident involving an ex-girlfriend. Mr. Hayse had also pleaded guilty in 2001, to disturbing
the peace following a domestic dispute with another girlfriend. Plaintiff contended that
defendant failed to allege that the children were in actual danger from Mr. Hayse and asserted
that defendant’s alcoholism was far more detrimental to the children. Plaintiff also admitted her
knowledge of Mr. Hayse’s convictions at the prior hearing. The trial court vacated the custody
order in the Judgment of Divorce pursuant to MCR 2.612(C)(1)(f), based on plaintiff’s fraud
upon the court and the change of circumstances. The trial court ordered an evidentiary hearing
on the custody matter, and granted defendant temporary custody of both Kyle and Haley.
Plaintiff appealed the order to this Court, and the trial court was ordered to hold an
evidentiary hearing regarding custody within twenty-one days.3 At the commencement of the
hearing, the trial court noted its intent to issue a show cause order against plaintiff for her false
statements before the court. The trial court took testimony from both parents, Mr. Hayse, and
other relatives and friends. Evidence was presented that defendant had not consumed alcohol
since 2001, and had steady employment. Plaintiff testified that she worked from home for Mr.
Hayse in his furniture business, but did not receive a salary. Plaintiff was wholly dependent on
Mr. Hayse for living expenses and incidental costs. Plaintiff testified that she was not concerned
for her children’s safety because Mr. Hayse’s criminal record had been expunged and the prior
incidents involved adults. Plaintiff also presented the testimony of a psychologist that Mr. Hayse
did not have a predatory nature towards children.
At the end of the hearing, the trial court granted sole physical custody of both children to
defendant and prohibited plaintiff from exercising her right to parenting time in the presence of
Mr. Hayse. The trial court acknowledged that Haley had an established custodial environment
with plaintiff, but found that defendant had shown by clear and convincing evidence that it was
in Haley’s best interest to change that environment. After weighing the statutory best interest
factors pursuant to MCL 722.23, the trial court found that factors (b), (c), (d), (e), (j), and (l)
favored defendant, while only factor (a) favored plaintiff.4
2
Motion Transcript, April 25, 2003, p 19.
3
Bizek v Bizek, unpublished order of the Court of Appeals, entered July 10, 2003 (Docket No.
249393).
4
The trial court’s specific findings will be discussed further infra.
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II. Failure to Conduct an Evidentiary Hearing
Plaintiff contends that the trial court erred in granting a temporary change of custody to
defendant without conducting an evidentiary hearing. An evidentiary hearing is the correct
forum for a trial court to consider whether proper cause or a change in circumstances exists to
warrant modification of a prior custody order.5 Before a trial court can fully investigate and
perform a best interests analysis pursuant to MCL 722.23, it must first make factual
determinations regarding the existence of an established custodial environment.6 Once a factual
determination has been made by the court regarding the existence of an established custodial
environment, it must weigh the statutory best interest factors and make a factual finding
regarding each of the factors.7
There are times when a trial court must act with immediacy with regard to custody for the
protection of the child. However, there is no evidence that Haley was in immediate danger
requiring a temporary change in custody without an evidentiary hearing. The trial court erred by
entering an immediate order changing custody,8 but subsequently held an evidentiary hearing
and made the required factual findings on the record, along with the determination of an existing
custodial environment. This error was, therefore, harmless.
III. Best Interest Factors
Plaintiff also asserts that the trial court improperly weighed the best interest factors and
erroneously emphasized her credibility and Mr. Hayse’s CSC conviction in determining to grant
defendant sole physical custody of Haley. Plaintiff also contends that defendant failed to meet
the requisite burden of proof to justify modification of custody given the existence of an
established custodial environment with plaintiff.
We apply three standards of review in custody cases. The great weight of
the evidence standard applies to all findings of fact. A trial court’s findings
regarding the existence of an established custodial environment and regarding
each custody factor should be affirmed unless the evidence clearly preponderates
in the opposite direction. An abuse of discretion standard applies to the trial
court’s discretionary rulings such as custody decisions. Questions of law are
5
MCL 722.27(1)(c); Terry v Affum (On Remand), 237 Mich App 522, 535; 603 NW2d 788
(1999).
6
Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000); see also Overall v Overall, 203
Mich App 450, 455; 512 NW2d 851 (1994).
7
Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999).
8
See Mann v Mann, 190 Mich App 526, 532; 476 NW2d 439 (1991) (finding that a hearing is
necessary even for a temporary change of custody).
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reviewed for clear legal error. A trial court commits clear legal error when it
incorrectly chooses, interprets, or applies the law.[9]
Pursuant to MCL 722.27, a trial court may, in the best interests of the child, “[m]odify or amend
its previous judgments or orders for proper cause” upon a showing of a change of
circumstances.10 To establish a change of circumstances sufficient to interrupt the child’s
custodial environment, “a movant must prove that, since the entry of the last custody order, the
conditions surrounding custody of the child, which have or could have a significant effect on the
child’s well-being, have materially changed.”11 Proper cause exists if there are “one or more
appropriate grounds that have or could have a significant effect on the child’s life to the extent
that reevaluation of the child’s custodial situation should be undertaken.”12
The trial court properly found that Haley’s established custodial environment was with
plaintiff. However, the trial court also found that defendant established a change of
circumstances by clear and convincing evidence. Plaintiff withheld information from defendant
and the court that she resided with her boyfriend who had a history of criminal convictions
related to prior relationships.13 This is clear and convincing evidence that Haley’s custodial
environment was not stable.
We also do not agree with plaintiff that the evidence clearly preponderates against the
trial court’s findings with regard to the best interest factors. Contrary to plaintiff’s allegations on
appeal, the trial court only referenced plaintiff’s credibility as a witness in discussing factors
(b)14 and (l).15 In determining that factor (b) favored defendant, the trial court considered
plaintiff’s truthfulness regarding Mr. Hayse’s convictions. However, the trial court also
determined that plaintiff’s concern with defendant’s alcohol consumption was inconsistent with
9
Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003) (internal citations
omitted), quoting Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000), citing MCL
722.28; Fletcher v Fletcher, 447 Mich 871, 880; 526 NW2d 889 (1994), Fletcher v Fletcher
(After Remand), 229 Mich App 19; 58 NW2d 11 (1998).
10
MCL 722.27(1)(c); Vodvarka, supra at 508.
11
Id. at 513 (emphasis in original).
12
Vodvarka, supra at 511.
13
Before modifying the custody order, the trial court stated:
Unfortunately, although Mr. Hayse might have been honest with Ms. Bizek, she
was not honest with her husband at the time the Judgment of Divorce was entered.
I don’t think that he would have agreed to this arrangement if he had known that
his daughter would be living with someone that had been convicted of a criminal
sexual conduct charge. [Motion Transcript, June 13, 2003, p 8.]
14
MCL 722.23(1)(b) (capacity to give love and affection and to raise and educate).
15
MCL 722.23(1)(l) (any other factor considered relevant by the trial court).
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her previous willingness to leave the children with defendant and was no longer a concern as
defendant was now sober. Defendant also demonstrated greater involvement with Kyle’s special
educational needs. In analyzing factor (l), the trial court noted inconsistencies in plaintiff’s
testimony evincing a lack of knowledge regarding information pertaining to the children. The
trial court also considered defendant’s consistent interest in the children and willingness to
facilitate their relationship with plaintiff, compared to plaintiff’s loss of interest in Kyle
following the divorce. The trial court’s findings with regard to factors (b) and (l) were consistent
with the evidence and properly considered plaintiff’s credibility.
The trial court only referred to Mr. Hayse’s CSC conviction in the discussion of factor
(e).16 The trial court found that plaintiff’s home with Mr. Hayse was not a permanent family unit
based on Mr. Hayse’s history with relationships. The trial court compared plaintiff’s residence
with defendant’s home, where Haley and Kyle would be raised together, and determined that
defendant’s family unit was more stable.17 This finding was also consistent with the evidence.
Furthermore, we find that plaintiff’s relationship with Mr. Hayse was a legitimate
concern for the trial court, and that the trial court’s evaluation of this relationship in conjunction
with the best interest factors did not focus solely upon Mr. Hayse’s CSC conviction. The court
also questioned the stability of the home environment provided by plaintiff, given her total
financial dependence and the relationship’s uncertain future. The factors, and the conditions or
circumstances evaluated within them, may have some “natural overlap,” and therefore, do not
evince either improper weighting or focus by the trial court.18
We also find that the trial court’s finding that factors (c), (d), and (j) favored defendant
was consistent with the evidence. Factor (c) concerns a party’s financial ability to provide for
the children.19 The trial court properly favored defendant, who had stable employment and
adequate child care, to plaintiff, who was finically dependent on her boyfriend—a relationship
with an uncertain future. The trial court also properly favored defendant on factor (d),
concerning the length of time the child has lived in a stable home and the desirability of
continuing that residence, for the same reasons.20 Defendant also still remained in the marital
home near an established network of family and friends. Factor (j) concerns the willingness of
one parent to facilitate the child’s relationship with the other parent.21 The trial court
acknowledged that both parties had difficulties with this factor in the past, but favored defendant
as plaintiff’s failure to provide Haley for parenting time led to the current proceedings. The trial
16
MCL 722.23(e) (permanence as a family unit of the custodial home).
17
See Hilliard v Schmidt, 231 Mich App 316, 319; 586 NW2d 263 (1998) (finding that sibling
relationships are appropriately considered in a best interest analysis).
18
Carson v Carson, 156 Mich App 291, 299; 401 NW2d 632 (1986).
19
MCL 722.23(c).
20
MCL 722.23(d).
21
MCL 722.23(j).
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court also noted plaintiff’s lack of interest in Kyle’s education. As the trial court’s findings were
consistent with the evidence, we should, and will, affirm.
When viewing the “sum total” of the factors required under MCL 722.23, the court did
not abuse its discretion in granting defendant sole physical custody of Haley.22 Six of the best
interest factors were determined in favor of defendant, while only one was determined in favor of
plaintiff. It was appropriate under these circumstances to change custody.
IV. Judicial Disqualification
Following the first day of the evidentiary hearing, plaintiff moved for the disqualification
of Judge Oxholm from the remainder of the proceedings, based upon her personal bias toward
plaintiff due to her living arrangement. Plaintiff’s motion was denied by Judge Oxholm, and
again on reconsideration before Chief Judge Mary Beth Kelly. Plaintiff now argues that her
motion was improperly denied,as Judge Oxholm’s bias was clear due to her many statements
disapproving of plaintiff’s living arrangment. We review a lower court's decision on a motion
for disqualification for an abuse of discretion.23 As a general rule, a judge will not be
disqualified absent a showing of actual bias or prejudice.24
“Opinions formed by a judge on the basis of facts introduced or events occurring during
the course of the current proceedings, or of prior proceedings, do not constitute bias or partiality
unless they display a deep seated favoritism or antagonism that would make fair judgment
impossible.”25 Plaintiff has failed to demonstrate that Judge Oxholm had an actual prejudice or
bias toward plaintiff, as opposed to a concern with Haley’s well-being and a desire to secure a
custody decision reflecting the best interests of the child based upon complete and accurate
information. A review of the transcripts and rulings in this matter shows that Judge Oxholm was
even-handed in her treatment of both parties and their respective counsel. The court’s rulings do
not demonstrate overemphasis or reliance upon limited considerations in its determination of
custody. As such, the trial court properly denied plaintiff’s motion for judicial disqualification.
Affirmed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
22
See Hilliard, supra at 326 (the trial court did not abuse its discretion in changing custody
based on the weight of the factors in favor of one party).
23
People v Bennett, 241 Mich App 511, 513; 616 NW2d 703 (2000).
24
MCR 2.003(B)(1); see also Cain v Dep't of Corrections, 451 Mich 470, 495; 548 NW2d 210
(1996).
25
Cain, supra at 496.
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