MARK S MILNER V KIM P MILNER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MARK S. MILNER,
UNPUBLISHED
July 10, 2008
Plaintiff-Appellee,
v
No. 280840
Oakland Circuit Court
Family Division
LC No. 1999-626914-DM
KIM P. MILNER,
Defendant-Appellant.
Before: Owens, P.J., O’Connell and Davis, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying her 2007 motion to change
physical custody of her two minor children with plaintiff. We affirm.
Defendant contends that the trial court improperly determined that she failed to establish
proper cause or a change in circumstances sufficient to warrant reconsideration of the court’s
2006 order awarding plaintiff physical custody of the children.
There are three different standards of review applicable to child custody
cases. The trial court’s factual findings on matters such as the established
custodial environment and the best-interests factors are reviewed under the great
weight of the evidence standard and will be affirmed “unless the evidence clearly
preponderates in the opposite direction.” In reviewing the findings, this Court
defers to the trial court’s determination of credibility. A trial court’s discretionary
rulings, such as the court’s determination on the issue of custody, are reviewed for
an abuse of discretion. Further, pursuant to MCL 722.28, questions of law in
custody cases are reviewed for clear legal error. [Sinicropi v Mazurek, 273 Mich
App 149, 155; 729 NW2d 256 (2006) (internal citations omitted).]
The determination of whether there is proper cause or a change in circumstances sufficient to
reconsider a custody award is a question of fact, which we review under the great weight of the
evidence standard. See Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003).
The goal of MCL 722.27 is to “to minimize unwarranted and disruptive changes of
custody orders,” except under the most compelling circumstances. Heid v AAASulewski (After
Remand), 209 Mich App 587, 593; 532 NW2d 205 (1995); see also Foskett v Foskett, 247 Mich
-1-
App 1, 6; 634 NW2d 363 (2001). Pursuant to the statute, a trial court may modify a custody
award only if the moving party establishes proper cause or a “change in circumstances.” MCL
722.27(1)(c); Vodvarka, supra at 508-509; Phillips v Jordan, 241 Mich App 17, 24; 614 NW2d
183 (2000). If the moving party overcomes the initial threshold, the court must determine if the
child has an established custodial environment with one parent or both. “[W]hen a modification
of custody would change the established custodial environment of a child, the moving party must
show by clear and convincing evidence that it is in the child’s best interest.” MacIntyre v
MacIntyre, 267 Mich App 449, 451; 705 NW2d 144 (2005); Phillips, supra at 25. Once the
court makes a factual determination regarding the existence of an established custodial
environment, the court must weigh the statutory best interest factors of MCL 722.23 and make a
factual finding regarding each factor. Schlender v Schlender, 235 Mich App 230, 233; 596
NW2d 643 (1999).
At issue in this case is whether defendant met her burden of establishing proper cause or
a change in circumstances requiring the court to reconsider its 2006 custody order. Defendant
was required to establish proper cause or a change in circumstances by a “preponderance of the
evidence.” Vodvarka, supra at 509. This Court summarized its definition of “proper cause” in
Vodvarka, supra at 512, as follows:
[T]o establish “proper cause” necessary to revisit a custody order, a
movant must prove by a preponderance of the evidence the existence of an
appropriate ground for legal action to be taken by the trial court. 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. When a movant has demonstrated such proper cause, the trial court
can then engage in a reevaluation of the statutory best interest factors.
The court need not wait until the “appropriate ground” has already had a negative effect on the
child’s life. However, the court may not speculate “about facts that may arise in the future . . . .”
Vodvarka, supra at 511 n 10.
This Court defined “a change in circumstances” in Vodvarka, supra at 513-514, as
follows:
[I]n order to establish a “change of circumstances,” 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 wellbeing, have materially changed. Again, not just any change will suffice, for over
time there will always be some changes in a child’s environment, behavior, and
well-being. Instead, 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. This too will be a determination
made on the basis of the facts of each case, with the relevance of the facts
presented being gauged by the statutory best interest factors.
-2-
To determine whether such a change has occurred, the court must compare conditions arising
after the previous custody order was entered to conditions existing at the time of and before the
entry of the previous order. Vodvarka, supra at 514.
We agree with the trial court that defendant failed to establish by a preponderance of the
evidence either proper cause or a change in circumstances since September 2006 sufficient to
warrant reconsideration of the previous custody award. As noted by plaintiff, several of the
factors raised by defendant are “normal life changes” insufficient to warrant reconsideration of
the 2006 custody order. Defendant alleged that she moved residences and jobs to be close to the
children. However, those factors are completely irrelevant. The trial court expressed no concern
with defendant’s prior home or job. Further, the fact that plaintiff relied on a babysitter to care
for the children for one hour in the afternoon and during the work day during summer vacation is
a normal situation that any child might face.
Defendant indicated that Sarah’s grades did not improve over the 2006/2007 school year
despite the change in schools, a claim that plaintiff denied. Neither party presented Sarah’s
report cards to prove their point. However, Dr. Frederick Marshall, the family counselor treating
plaintiff and the children, indicated that both children ended the school year with stellar grades
despite some mid-year setbacks. It was undisputed that Sarah received failing grades throughout
the majority of the prior school year. Defendant also alleged that plaintiff threatened to file a
lawsuit against Sarah’s school counselor and English teacher for raising concerns about the
child’s well-being. However, defendant presented a letter from the counselor in which she
merely expressed her concerns that Sarah was unhappy in plaintiff’s home and feared retribution
for venting those concerns at school. The counselor did not indicate that plaintiff had a negative
reaction when she raised her concerns regarding Sarah. From the evidence presented, it is clear
that the children’s school performances only changed for the better after the 2006 custody order.
Moreover, the evidence that Sarah and Michael were fearful in plaintiff’s home was rebutted by
Dr. Marshall and might have been rebutted by Dr. Carol Stratman, the court appointed therapist
who treated Sarah and interviewed both plaintiff and defendant throughout the year, had either
party contacted her to provide a letter regarding these proceedings.
Defendant’s participation in individual therapy and in family therapy with the children
was a positive step. However, defendant failed to present any evidence from Dr. Stratman, the
only neutral professional familiar with both sides of the story. In any event, Sarah and Michael
reported their unhappiness in plaintiff’s home and dislike for their stepmother prior to the entry
of the 2006 custody order. For whatever reason, the court rejected the children’s complaints at
that time and we may not reassess its evaluation of witness credibility. Fletcher v Fletcher, 447
Mich 871, 889-890; 526 NW2d 889 (1994). The children’s continuing complaints raised no new
concerns after the order was entered and, therefore, could not form the basis of a change in
circumstances. See Vodvarka, supra at 514.
The trial court may only conduct an evidentiary hearing to determine if a change in
custody would be in the child’s best interests if the moving party establishes proper cause or a
change in circumstances. Killingbeck v Killingbeck, 269 Mich App 132, 145; 711 NW2d 759
(2005); Vodvarka, supra at 508-509. Although the threshold consideration of whether there was
proper cause or a change of circumstances might be fact-intensive, the court need not necessarily
conduct an evidentiary hearing on the topic. Vodvarka, supra at 512. Defendant failed to meet
-3-
the threshold requirement and, therefore, the trial court was not required to conduct a hearing or
consider the best interest factors. Killingbeck, supra at 148.
Defendant further contends that the trial court violated her right to due process when it
failed to conduct an evidentiary hearing. Defendant relies on MCR 3.210(c)(8), which 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.
Both parties presented evidence with their pleadings and, therefore, made an offer of
proof. The court reviewed the pleadings and evidence and an FOC recommendation and heard
oral arguments before rendering its decision. The record shows that the court carefully
considered the issues before determining that defendant failed to meet the threshold requirement
of establishing probable cause or a change in circumstances. Accordingly, the trial court
properly denied defendant’s motion for a change in custody and did not deny defendant her right
to due process in doing so.
Affirmed.
/s/ Donald S. Owens
/s/ Peter D. O’Connell
/s/ Alton T. Davis
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
