CELENA M BALL V JOHN W WELTER JR
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STATE OF MICHIGAN
COURT OF APPEALS
CELENA M. BALL, f/k/a CELENA M.
WELTER,
UNPUBLISHED
August 10, 2004
Plaintiff-Appellant,
v
No. 253438
Hillsdale Circuit Court
LC No. 00-000195-DM
JOHN W. WELTER, JR.,
Defendant-Appellee.
Before: Judges Whitbeck, CJ, and Owens and Schuette, JJ
PER CURIAM.
In this custody dispute, plaintiff, Celena M. Ball, appeals by right from the order granting
a change in physical custody of the parties’ two minor children from plaintiff to defendant. We
remand this case for a reevaluation of the custody issue.
Plaintiff and defendant were married March 20, 1992 and had two children. On February
24, 2000, plaintiff filed for divorce, which resulted in a judgment of divorce filed February 12,
2001. Within the judgment of divorce, the trial court awarded joint legal custody to both parties,
physical custody of the children during the school year to plaintiff, and physical custody during
the summer to defendant. Defendant petitioned the trial court for a change in custody in January
2003, which was denied that same month for a failure to show either a change in circumstances
or proper cause. Defendant again petitioned the trial court for a change in custody in February
2003; however, the trial court did not definitively decide the custody issue at either a March
2003 hearing on defendant’s petition, or a later hearing in April concerning parenting time.
During a May 6, 2003 hearing regarding parenting time, the trial court issued an interim order
changing custody from plaintiff to defendant after learning that plaintiff did not attend a meeting
regarding one child’s schoolwork and failed to tell defendant that she would not be attending.
Seven months later, on December 19, 2003, the trial court held an evidentiary hearing regarding
the change in custody and, on January 4, 2004, issued an order granting defendant custody.
Plaintiff first asserts that the trial court abused its discretion in admitting evidence of
events occurring before its January 2003 order denying defendant’s petition for a change in
custody. We disagree. Generally, the decision whether to admit evidence is within the
discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
Campbell v Sullins, 257 Mich App 179, 196; 667 NW2d 887 (2003). However, because plaintiff
failed to object to the admission of this evidence at trial, this issue is unpreserved. This Court
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reviews unpreserved evidentiary issues to determine whether a plain error occurred that affected
a party’s substantial rights. Hilgendorf v St John Hosp & Medical Ctr Corp, 245 Mich App 670,
700; 630 NW2d 356 (2001).
Plaintiff cites Vodvarka v Grasmeyer, 259 Mich App 499, 514; 675 NW2d 847 (2003),
for support that the trial court was “limited to considering evidence arising between the entry of
the order and the filing of the petition for custody in determining whether a change in
circumstances” existed. However, plaintiff fails to either identify the testimony to which she
objects or apply this case law to the facts of this case. “It is not sufficient for a party ‘simply to
announce a position or assert an error and then leave it up to this Court to discover and
rationalize the basis for [her] claims, or unravel and elaborate for [plaintiff her] arguments, and
then search for authority either to sustain or reject [her] position.’” Wilson v Taylor, 457 Mich
232, 243; 577 NW2d 100 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959). A party also may not give issues cursory treatment with little or no citation to supporting
authority. Goolsby v Detroit, 419 Mich 651, 655 n 1; 358 NW2d 856 (1984); Silver Creek Twp v
Corso, 246 Mich App 94, 99; 631 NW2d 346 (2001). Plaintiff’s “failure to properly address the
merits of [her] assertion of error constitutes abandonment of the issue.” Houghton v Keller, 256
Mich App 336, 339-340; 662 NW2d 854 (2003), citing Yee v Shiawassee Co Bd of Comm’rs,
251 Mich App 379, 406; 651 NW2d 756 (2002).
Plaintiff next asserts that the trial court erred in reviewing the existing order of custody
without first finding a change in circumstances or proper cause. We agree. 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. MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 876-877 (Brickley, J.),
900 (Griffin, J.); 526 NW2d 889 (1994); Harvey v Harvey, 257 Mich App 278, 283; 668 NW2d
187 (2003), aff’d 470 Mich 186 (2004). The abuse of discretion standard applies to the trial
court’s discretionary rulings, and to whom custody is granted is a discretionary ruling.
Vodvarka, supra at 507-508. An abuse of discretion occurs when the result is so grossly
violative of fact and logic that it evidences a perversity of will, a defiance of judgment or the
exercise of passion or bias. Fletcher, supra at 879-880 (Brickley, J.), 900 (Griffin, J.).
Questions of law are reviewed for clear legal error. A trial court commits legal error when it
incorrectly chooses, interprets or applies the law. Id., 881 (Brickley, J.), 900 (Griffin, J.);
Vodvarka, supra at 508.
A trial court can modify a custody order only where the moving party first establishes by
a preponderance of the evidence that "proper cause" or a "change in circumstances" supports a
finding that a change in custody is in the child's best interest. MCL 722.27(1)(c); Vodvarka,
supra at 508-509. The party seeking change must establish proper cause or a change in
circumstances before the existence of an established custodial environment and the best interest
factors may be considered. Id. If this initial burden is not met, "the trial 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); MCL 722.27(1)(c).
As noted above, during a May 6, 2003 hearing regarding parenting time, the trial court
changed custody in apparent frustration over plaintiff’s ongoing lack of cooperation after
learning that plaintiff did not attend a school meeting and did not tell defendant that she would
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not be attending. This Court has noted that issues regarding parenting time and even the
contempt of one of the parties are not sufficient to establish a change in circumstances or proper
cause requiring a review of an existing custody order. Vodvarka, supra at 509-510, citing Adams
v Adams, 100 Mich App 1, 13; 298 NW2d 871 (1980). Both the May 6 transcript and the
resulting interim order changing custody lack any finding regarding a change in circumstances or
proper cause. Without such a finding, the trial court was without authority to review the existing
custody order and committed legal error by doing so. Fletcher, supra at 881 (Brickley, J.), 900
(Griffin, J.); Rossow, supra at 458; MCL 722.27(1)(c). While this error initially relates back to
the May 6 interim order, we note that the December 2003 evidentiary hearing and resulting
January 2004 order from which plaintiff appeals also lack any finding of a change in
circumstances or proper cause to review custody; therefore, this legal error also extends to the
order from which plaintiff appeals.
If a trial court improperly adjudicates a child custody dispute, and the impropriety is not
harmless, the appropriate remedy is to remand for reevaluation. Fletcher, supra at 889
(Brickley, J.), 900 (Griffin, J.). An error that results in a change in custody is not harmless.
Harvey, supra at 292. Although, in this case, a remand for reevaluation may again result in
defendant retaining custody, Michigan courts have recognized that one legislative goal behind
the Child Custody Act is to prevent sudden changes in custody, which can be disruptive rather
than beneficial to children. Vodvarka, supra at 509 (internal citations omitted). Such a change
was present in this case. Therefore, we remand this case for a reevaluation of the custody issue
in accordance with the statute. On remand, the trial court shall follow the procedure of the
statute and determine whether there was sufficient evidence to warrant a finding of a change in
circumstances or proper cause shown. If the court finds a change in circumstances or proper
cause, it should determine whether a custodial environment as been established before
considering the best interest factors regarding each child. When determining the best interests of
the children, it should consider up-to-date information arising since the original custody order.
Fletcher, supra at 889 (Brickley, J.), 900 (Griffin, J.). The January 4, 2004 order shall remain in
effect pending the trial court’s reevaluation in order to minimize disruption in the children’s
lives. The primary purpose of the Child Custody Act is to protect the children’s best interest,
and the trial court is in the best position to make this determination. Id. at 889-890 (Brickley, J.),
900 (Griffin, J.).
We remand this case to the trial court for further proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Donald S. Owens
/s/ Bill Schuette
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