JOHN ROY ALLEN V ROBIN LYNN BELONGA
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN ROY ALLEN,
UNPUBLISHED
January 15, 2008
Plaintiff-Appellant,
v
No. 277780
Mackinac Circuit Court
LC No. 05-005986-TC
ROBIN LYNN BELONGA,
Defendant-Appellee.
Before: Davis, P.J., and Murphy and White, JJ.
PER CURIAM.
Plaintiff appeals as of right the order of the trial court granting defendant’s motion for
sole physical custody of the parties’ two minor children and retaining the parties’ joint legal
custody. The court’s order modified the parties’ 2001 custody order, which had provided for
joint legal and physical custody. There is no dispute that there was in existence a joint
established custodial environment when defendant’s motion was filed. We affirm.
Plaintiff asserts two arguments on appeal. First, plaintiff claims that defendant failed to
establish proper cause or a change of circumstances, a prerequisite to conducting an evidentiary
hearing regarding, and to making a ruling on, the children’s best interests. Plaintiff then
proceeds to argue that, assuming the threshold of proper cause or a change of circumstances was
met, there was not clear and convincing evidence presented at the hearing to support a change in
the established custodial environment. We disagree with plaintiff on both arguments.
Findings of fact in custody cases are reviewed under the great weight of the evidence
standard, discretionary decisions such as custody dispositions are reviewed for an abuse of
discretion, and questions of law are reviewed for clear legal error. MCL 722.28; Thompson v
Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004), quoting Phillips v Jordan, 241 Mich
App 17, 20; 614 NW2d 183 (2000).
MCL 722.27 provides in pertinent part as follows:
(1) If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following:
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(c) Modify or amend its previous judgments or orders for proper cause
shown or because of change of circumstances . . . . The court shall not modify or
amend its previous judgments or orders or issue a new order so as to change the
established custodial environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the child. [Emphasis added.]
A change of circumstances is established by proving 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.” Vodvarka v Grasmeyer,
259 Mich App 499, 513; 675 NW2d 847 (2003) (emphasis in original). Something more than
normal life changes that occur during a child’s life must be shown. Id. Proper cause is shown by
proving by a preponderance of the evidence that an appropriate ground for legal action to be
taken by the trial court exists. Id. at 512. “The appropriate ground(s) should be relevant to at
least one of the twelve statutory best interest factors, and must be of such magnitude to have a
significant effect on the child’s well being.” Id. If proper cause or a change of circumstances is
not established, the court is precluded from holding a child custody hearing to determine the
child’s best interests. Id. at 508.
Here, the trial court cited Vodvarka and recognized the threshold requirement of proper
cause or a change of circumstances that must be shown before a motion to change custody can
proceed to the best-interests stage. The trial court further stated that it was “satisfied that the
record is replete with instances of communication breakdowns and extreme recalcitrance
demonstrated by the plaintiff in attempting to cooperatively address issues of the children as it
would relate to facilitating a relationship with the other parent.” The court noted plaintiff’s
decision to discontinue working with a particular therapist and generally cited testimony by a
social worker with the Department of Human Services (DHS), who addressed baseless referrals
made to the DHS by plaintiff regarding defendant’s parenting. The court found that plaintiff had
been acting in a vindictive manner and that his behavior exceeded any rational reaction to
various situations, thereby showing a lack of interest in maintaining an open and positive line of
communication with defendant relative to the children.
Although the trial court spoke of “probable” cause that justified further review of the
motion to change custody, it is clear that the court was aware of the proper standard having cited
Vodvarka and having addressed pertinent matters related to the threshold requirement. Reversal
is unwarranted, where the record contains evidence regarding behavioral problems on the part of
the children related to joint custody, a change in daycare providers by plaintiff, an abrupt change
in therapists initiated by plaintiff, defendant’s relationship with a boyfriend of questionable
character, numerous referrals to the DHS by plaintiff regarding defendant’s parenting that were
characterized as suspect, excessive, and baseless, plaintiff’s anger management issues, and
evidence that plaintiff had physically abused defendant. While some of these facts may not in
and of themselves lend support to a finding of proper cause or a change of circumstances, in
combination they are sufficient. It is clear that turmoil had entered the lives of the parties and
the children under the existing joint physical custody order. Accordingly, there was no error by
the trial court on the matter of proper cause and change of circumstances, and it was permissible
for the court to proceed to a determination of the children’s best interests.
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With respect to the best-interests hearing and ruling, the factors that a court must consider
are set forth in MCL 722.23, and where modification of a custody order would change the
established custodial environment, there must be a showing that the change is in the best interests
of the children by clear and convincing evidence. MCL 722.27(1)(c); Sinicropi v Mazurek, 273
Mich App 149, 178; 729 NW2d 256 (2006). While the trial court must state its factual findings
and conclusions on each best-interests factor, the court need not include consideration of every
piece of evidence entered and argument raised at trial. MacIntyre v MacIntyre (On Remand),
267 Mich App 449, 451-452; 705 NW2d 144 (2005). MCR 3.210(D), which governs factual
findings in child custody hearings and trials, incorporates by reference MCR 2.517. MCR
2.517(A)(2) provides that “[b]rief, definite, and pertinent findings and conclusions on the
contested matters are sufficient, without overelaboration of detail or particularization of facts.”
See Foskett v Foskett, 247 Mich App 1, 12-13; 634 NW2d 363 (2001).
Contrary to plaintiff’s arguments, and on careful review of the record, we find that the
court’s findings on the best-interests factors, although generally brief, were sufficient and
ultimately embraced the principles and considerations encompassed by all of the factors.
Further, the court’s factual findings on the best-interests factors were not against the great weight
of the evidence, there was no error in the court’s conclusion that clear and convincing evidence
existed to support a change in custody, and the court did not abuse its discretion in changing
custody.
As found by the trial court, there was evidence supporting a conclusion that plaintiff
made numerous referrals and complaints to the DHS regarding defendant’s parenting of the
children that were baseless. These actions most certainly disrupted defendant’s and the
children’s lives, and they can reasonably be characterized as vindictive, calling into question
plaintiff’s moral fitness, MCL 722.23(f), his ability to facilitate and encourage a close and
continuing parent-child relationship between the children and defendant, MCL 722.23(j), and
plaintiff’s capacity and disposition to give proper guidance to the children, MCL 722.23(b). We
find no error in the trial court’s conclusion that these factors favored defendant. We also have
great concern with regard to evidence showing that plaintiff had physically battered defendant on
several occasions during the relationship, including photographs depicting bruising, and there
was evidence that plaintiff acknowledged “some abuse” against defendant by his hand. The trial
court cited this evidence in support of its conclusion that the factor addressing moral fitness,
MCL 722.23(f), favored defendant. This finding was not against the great weight of the
evidence, and, although the trial court simply stated that it was acknowledging the abuse when
reviewing the factor addressing domestic violence, MCL 722.23(k), without prejudice to the
court’s final analysis, the evidence would have easily supported an express finding that the factor
on domestic violence favored defendant.1 The trial court’s findings in favor of defendant on the
1
Consideration of the same facts under multiple best-interests factors does not constitute
impermissible double weighing, where the factors have some natural overlap. Sinicropi, supra at
181.
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factors recited above were not against the great weight of the evidence, nor were the court’s
findings on the other factors with regard to which the parties were deemed equal.2
This Court has disapproved of any rigid application of a mathematical formula that
equality or near equality on the statutory factors precludes a party from satisfying the clear and
convincing evidence standard of proof. Sinicropi, supra at 184. We are bound to examine all
the criteria in the ultimate light of a child’s best interests. Id. With these principles in mind, and
giving the trial court the required deference under MCL 722.28, we conclude that the trial court’s
findings and conclusions, along with its ultimate disposition, do not warrant reversal.
Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Helene N. White
2
We have not discounted, nor did the trial court, defendant’s involvement with a boyfriend who
has a criminal history. While there was testimony from a therapist that indicated a lack of
significant concern relative to the relationship, defendant’s decision to be in the relationship
reflects questionable judgment. The record indicates, however, that the relationship ended.
Moreover, the fact of the past relationship, while relevant, does not alter our ultimate conclusion
that the trial court’s ruling should be affirmed.
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