REZA BAYATI V BAHAREH BAYATI
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STATE OF MICHIGAN
COURT OF APPEALS
REZA BAYATI,
UNPUBLISHED
March 22, 2007
Plaintiff-Appellant,
v
BAHAREH BAYATI, a/k/a BAHAREH BAHRHOSSEINI,
No. 274016
Oakland Circuit Court
Family Division
LC No. 2003-678242-DM
Defendant-Appellee.
Before: Jansen, P.J., and Neff and Hoekstra, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order denying his motion to change custody.
We affirm.
Plaintiff argues that the trial court abused its discretion in denying his motion to change
custody without conducting an evidentiary hearing because the children’s regression and need
for a communicatively handicapped program constitute a proper cause or change in
circumstances. We disagree.
MCL 722.28 provides that child custody orders and judgments shall be affirmed on
appeal unless the trial court made “findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” Fletcher v
Fletcher, 447 Mich 871, 877-881; 526 NW2d 889 (1994). A finding of fact is against the great
weight of the evidence if the evidence “clearly preponderates in the opposite direction.” Id. at
879, quoting Murchie v Std Oil Co, 355 Mich 550, 558; 94 NW2d 799 (1959). We review the
trial court’s discretionary rulings, including custody decisions, for an abuse of discretion.
Fletcher, supra at 879-881. We review questions of law for clear legal error, which occurs when
a court incorrectly chooses, interprets, or applies the law. Id. at 881.
MCL 722.27(1)(c) provides that a trial court may conduct a child custody hearing to
modify or amend a previous order or judgment only on a showing of a proper cause or change in
circumstances. Killingbeck v Killingbeck, 269 Mich App 132, 145; 711 NW2d 759 (2005);
Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003). The movant, i.e.,
plaintiff herein, has the burden of proving by a preponderance of the evidence that either a
proper cause or change in circumstances exists before the trial court may even consider whether
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an established custodial environment exists and conduct a hearing to review the best interest
factors. Similarly, MCR 3.210(C)(8) provides:
In deciding whether an evidentiary hearing is necessary with regard to a
postjudgment motion to change custody, the court must determine, by requiring
an offer of proof or otherwise, whether there are contested factual issues that must
be resolved in order for the court to make an informed decision on the motion.
“Proper cause” is defined as “one or more appropriate grounds that have or could have a
significant effect on the child’s life to the extent that a reevaluation of the child’s custodial
situation should be undertaken.” Vodvarka, supra at 511. Because of the fact-intensive nature of
custody disputes, the best interest factors, MCL 722.23(a)-(l), may be used for guidance. Id. at
511-512. Not any fact relevant to these factors will constitute sufficient cause; rather, the
grounds “must be of a magnitude to have a significant effect on the child’s well-being.” Id. at
512. Because the trial court did not review the best interest factors, we do not have that guidance
available. However, plaintiff did not present any evidence that placement of the children in a
communicatively handicapped class or the children’s alleged regression in development has
affected the children’s well being. Plaintiff failed to meet his burden, and the trial court did not
abuse its discretion in concluding that no proper cause existed sufficient to warrant a hearing on
the best interest factors.
To show a change in circumstances, a movant must show 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.” Id. at 513 (emphasis in
original). The last custody order entered before plaintiff’s present motion to change custody was
the December 7, 2005, opinion and order regarding an established custodial environment, change
of domicile, physical custody, and parenting time. Not just any change will suffice; rather, “the
evidence must demonstrate something more than the normal life changes (both good and bad)
that occur during the life of a child, and there must be at least some evidence that the material
changes have had or will almost certainly have an effect on the child.” Id. at 513-514. Like the
determination of proper cause, this determination will be based on the facts of each case, and the
best interest factors may be used for guidance.
The trial court did not review the best interest factors and we do not have the benefit of
that guidance. Nonetheless, in plaintiff’s motion to schedule an evidentiary hearing and to
change custody, he only put forward the following pertinent allegations:
18.
The San Juan schools, Thompson Coleman school, evaluated the children
in April 2006 and prepared a report of their findings and sent to Plaintiff on May
8th, 2006 . . . .
19.
The evidence shows the children are now severely impaired and they are
registered in [a] communicatively handicapped program (SDC-CH).
***
30.
Now defendant finds herself without any family support, they are unable
to baby-sit the boys, even a couple of days. There is no financial support.
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Plaintiff believes that the situation is unstable, unsuitable and grave for the
children and there is [a] substantial change in circumstances although in a very
short time since the recent hearing. Therefore the court should consider and reevaluate the best interests of [the] children at this time based on the change of
circumstances and the proper cause.
31.
The children have had serious injuries and yet defendant declined to
inform plaintiff and never provides any records despite the plaintiff’s request and
the court orders. Defendant did not consider the papers of the children[’s] health
records important or relevant.
Plaintiff has not presented any evidence that the children’s participation in the special day
class communicatively handicapped (SDC-CH) program will have a detrimental effect on them.
Rather, plaintiff agrees that the children need speech therapy, as is evidenced by Charles
Pearlstein’s evaluation and the Troy school district’s speech and language evaluation. Plaintiff
admits that the children have experienced developmental delays, and he involved them in speech
therapy during the summer of 2005, when they were in Michigan for an extended stay. The
existence of speech delays and the need for speech therapy arose before the December 7, 2005,
opinion and order, and plaintiff has failed to show that they amount to more than normal life
changes. Accordingly, neither can constitute a change in circumstances. Vodvarka, supra at
513.
Plaintiff also asserts that the children’s regression in development constitutes a change in
circumstances. However, plaintiff alleged that this regression occurred in September 2005—
before the December 7, 2005, opinion and order. Further, plaintiff has presented no evidence to
suggest that this regression is something more than a normal life change. Id.
Plaintiff is apparently concerned with the potential stigma associated with the
participation in the SDC-CH program instead of placement in a standard general education
program. However, plaintiff presents nothing to support or explain how this will have a
significant effect on the children’s well being, or how it constitutes anything more than a normal
life change. Id. Further, the IEP assessment from the California school district indicates that
integration with the general education program for the children’s strong areas was recommended,
and defendant explained that the children were attending the SDC-CH program at the public
school in the morning and a standard general kindergarten program at a private school in the
afternoon. Therefore, defendant’s argument regarding a potential stigma appears largely
misplaced, and he has failed to show that enrollment or participation in the SDC-CH program
constitutes an actual, rather than merely a perceived, change in circumstances. Plaintiff’s motion
to change custody appears to have been motivated by defendant’s request for an increase in child
support, the issuance of spousal support, and income tax deductions, rather than by any belief
that the circumstances surrounding the children’s lives had in fact changed. The trial court did
not abuse its discretion in denying plaintiff’s motion to change custody without conducting an
evidentiary hearing.
Plaintiff argues at length that the Friend of the Court failed to investigate certain
allegations raised in his motion to change custody, and the allegation that the parties were not
providing one another with the children’s records as directed by the trial court. However,
plaintiff fails to articulate how the Friend of the Court’s alleged failure constitutes a sufficient
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proper cause or change in circumstances to warrant an evidentiary hearing, and we fail to see the
connection. “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 his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position.’” Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998), quoting Mitcham v
Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). Failure to properly address the merits of this
assertion constitutes abandonment of the issue. Thompson v Thompson, 261 Mich App 353, 356;
683 NW2d 250 (2004).
Plaintiff contends that the trial court abused its discretion in denying his motion for
reconsideration. We disagree. This Court reviews a trial court’s decision on a motion for
reconsideration for an abuse of discretion. Tinman v Blue Cross & Blue Shield of Michigan, 264
Mich App 546, 556-557; 692 NW2d 58 (2004).
“Generally, and without restricting the discretion of the court, a motion for rehearing or
reconsideration which merely presents the same issues ruled on by the court, either expressly or
by reasonable implication, will not be granted.” MCR 2.119(F)(3). “The moving party must
demonstrate a palpable error by which the court and the parties have been misled and show that a
different disposition of the motion must result from correction of the error.” MCR 2.119(F)(3).
As discussed, supra, the trial court did not abuse its discretion in denying plaintiff’s
motion to change custody without conducting an evidentiary hearing because plaintiff failed to
present a proper cause or change in circumstances. See Vodvarka, supra at 513. In support of
his motion for reconsideration, plaintiff argued that the Friend of the Court had failed to
investigate the allegations contained in paragraphs 19, 30, and 31 of his motion to change
custody, and that the Friend of the Court had failed to investigate the parties’ alleged
noncompliance with the trial court’s orders. With respect to paragraph 19, the Friend of the
Court investigated the SDC-CH program, as is evidenced by its interviews with two of the
children’s teachers, a psychologist, a speech therapist, a program specialist, and a school
placement specialist in California. Regarding paragraph 30, the Friend of the Court learned that
the children were punctual, clean, and well fed, and none of the professionals expressed any
concerns about defendant’s care of the children. Further, the Friend of the Court found that
defendant’s request for child support was not an indication that the children’s tangible needs
were not being met. In regard to paragraph 31, the Friend of the Court found that plaintiff had
access to the children’s medical professionals and that there were no reports of injuries. Finally,
the Friend of the Court found that plaintiff had access to the children’s medical records and that
plaintiff had not shown that defendant failed to provide those records. Therefore, plaintiff failed
to demonstrate any “palpable error by which the court and the parties have been misled and show
that a different disposition of the motion must result from correction of the error.” MCR
2.119(F)(3). The trial court did not abuse its discretion in denying plaintiff’s motion for
reconsideration of the order denying plaintiff’s motion to change custody.
Affirmed.
/s/ Kathleen Jansen
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
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