JAMES ROWLAND V STACY ROWLAND
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES ROWLAND,
UNPUBLISHED
August 19, 2008
Plaintiff-Appellee,
v
No. 284266
Lake County Trial Court
LC No. 02-005674-DM
STACY ROWLAND,
Defendant-Appellant.
Before: Davis, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
In this child custody action, defendant appeals by right from an order of the circuit court
holding that the parties share joint legal and physical custody of their two minor children. For
the reasons set forth in this opinion, we affirm the trial court’s substantive rulings, but are
required to remand the matter in accordance with MCL 722.31 for the trial court to state on the
record the factors enumerated in MCL 722.31.1 We note that the trial court already has ample
evidence for listing the factors set forth in MCL 722.31(4), so we leave it entirely to the trial
court’s discretion whether additional testimony or argument is necessary in making its findings.
A divorce judgment was entered for plaintiff and defendant on October 4, 2002, granting
the parties joint legal custody of the children as of that date. The children primarily lived with
defendant until March 2006 when they were temporarily removed from plaintiff’s care as the
result of a Child Protective Services (CPS) investigation. The children were first placed with
defendant’s parents, then in foster care, and finally with plaintiff. In early 2008, plaintiff moved
with the children to Chicago without first obtaining a court order to change the children’s
domicile.
I
1
“When a parent wishes to move with a minor child to a location more than 100 miles away, and
the parent does not have sole legal custody, the trial court must consider the [MCL 722.31(4)0]
factors, keeping the child as its primary focus.” Rittershaus v Ritterhaus, 273 Mich App 462,
465; 730 NW2d 262 (2007) (emphasis added).
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Defendant’s first argument is that there was no proper cause or a change in circumstances
to warrant a reconsideration of custody.
There are three standards of review in child custody appeals. Vodvarka v Grasmeyer,
259 Mich App 499, 507; 675 NW2d 847 (2003). First, this Court reviews a trial court’s findings
of fact to determine whether they are against the great weight of the evidence. Id. Whether an
established custodial environment exists is a question of fact. Mogle v Scriver, 241 Mich App
192, 196; 614 NW2d 696 (2000). Second, this Court reviews the trial court’s discretionary
rulings for an abuse of discretion. Vodvarka, supra at 507-508. In order to find an abuse of
discretion, “the result must be so palpably and grossly violative of fact and logic that it evidences
not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof,
not the exercise of reason but rather of passion or bias.” Fletcher v Fletcher, 447 Mich 871, 879;
526 NW2d 889 (1994). See also Shulick v Richards, 273 Mich App 320, 325; 729 NW2d 533
(2006). Third, this Court reviews questions of law for clear legal error. Vodvarka, supra at 508.
“‘A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the
law.’” Id. (citation omitted).
A trial court may modify a custody award if the moving party establishes that there has
been a proper cause or a change in circumstances. MCL 722.27(1)(c); Phillips v Jordan, 241
Mich App 17, 24; 614 NW2d 183 (2000). To establish “proper cause” the moving party must
show by a preponderance of the evidence that there is an appropriate ground for the court to take
legal action. Vodvarka, supra 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. When a movant has demonstrated such proper cause,
the trial court can then engage in a reevaluation of the statutory best interest factors.” Id.
To establish “change in circumstances” the moving party must show that the affected
children’s living situation has so greatly changed since the entry of the last custody order as to
have a significant effect on the children’s well-being. Rittershaus v Rittershaus, 273 Mich App
462, 473; 730 NW2d 262 (2007). In Vodvarka, this Court stated:
[N]ot 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 that something more than 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. [Vodvarka, supra at 513-514.]
In this case, defendant argues that the trial court did not initially find that there was a
proper cause or a change in circumstances, and therefore should not have proceeded to consider
whether a change in custody was warranted. Defendant notes that the children were temporarily
placed with plaintiff in June 2006 after a CPS investigation, but that no evidence was presented
to show whether the investigation was still pending. Defendant further notes that the temporary
placement with plaintiff is insufficient to have a significant impact on the children’s well-being
as the previous custody order required the children to have parenting time with plaintiff for an
extended period over the summer months anyway. However, defendant’s arguments are without
merit because the trial court correctly recognized that it did not have the freedom to arbitrarily
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change a child custody order previously issued and could not make a change to the custodial
environment without good reason. The court also noted that after the date that the parties had
agreed to joint legal custody, “protective services became involved in Manistee County and the
children then were placed with [plaintiff and], that really kind of vitiated the custodial
environment requirement.” Thus, the court observed that the children’s living situation had so
greatly changed since the entry of the last custody order that the children’s well-being had been
significantly impacted. See Rittershaus, supra at 473.2 Therefore, it can be presumed that the
trial court recognized a change in circumstances that would require an investigation into the
statutory best interest factors. Accordingly, the trial court correctly concluded that there was a
change in circumstances and did not commit clear legal error.
II
Defendant’s second argument is that the trial court should have applied a clear-and
convincing evidence standard when determining whether to change the custodial arrangement.
We agree with defendant that this is indeed the standard when a custodial environment exists.
However, we find it extraordinary that defendant argues that a custodial environment existed at a
time when the evidence clearly indicated that CPS had removed the children from defendant’s
care, her parents had refused to act as their caregivers, and the children had been living in
Chicago with plaintiff.
Whether there is an established custodial environment is a question of fact. Mogle, supra
at 192. Where an established custodial environment exists, the trial court must find clear and
convincing evidence that a change to that custodial environment is necessary. Baker v Baker,
411 Mich 567, 573; 309 NW2d 532 (1981); Hayes v Hayes, 209 Mich App 385, 387; 532 NW2d
190 (1995). However, if no established custodial environment exists, the trial court can award
custody based on the preponderance of the evidence. Hayes, supra at 387.
The crux of this issue is whether the trial court found an established custodial
environment, and therefore which standard it should have applied. Defendant argues that the
children had an established custodial environment with her as evidenced by the five years they
were in her care prior to removal in 2006, and the temporary placement with plaintiff does not
change that fact. MCL 722.27(1)(c) provides as follows:
The custodial environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort. The age of the child, the
physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered.
2
Moreover, as of the hearing the children had been moved from Manistee, Michigan to Chicago,
Illinois, a distance of well over 250 miles, and there is no indication that plaintiff received prior
approval by the court for the move. Sehlke v VanDerMaas, 268 Mich App 262, 266; 707 NW2d
603 (2005), rev’d in part on other grounds 474 Mich 1053 (2006).
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This Court has concluded that the established custodial environment is not determined simply
based on a custody order. Bowers v Bowers, 198 Mich App 320, 325; 497 NW2d 602 (1993).
However, repeated changes in physical custody can destroy an established custodial
environment. In Baker, supra at 580-582. As in Baker, the children in the case at hand had
repeated changes in custody and uncertainty in their living situation. Although the children had
lived with defendant for five years, the period immediately prior to the custody hearing was
characterized by instability and uncertainty. The evidence shows that a complaint was filed
against defendant with CPS on March 28, 2006. After this time, the children were temporarily
placed with defendant’s parents. Shortly after the placement, defendant’s father contacted local
law enforcement and asked that the kids be removed. Next, the children were placed temporarily
in foster care with a woman in Scottville. Finally, on June 13, 2006, the children were placed
with plaintiff and eventually moved to Chicago. Although the children may have had an
established custodial environment with defendant prior to this period, it was not intact at the time
of the hearing. As noted in Baker, “[c]ertainly those repeated custodial changes and
geographical moves, with the necessarily attendant emotional implications, destroyed the
previously established custodial environment in which the boy was living and precluded the
establishment of a new one, at least until after trial.” Baker, supra at 581. That reasoning holds
true here. Thus, the trial court properly concluded that there was no established custodial
environment and the evidence was correctly reviewed based on a preponderance of the evidence
standard.3
III
Defendant’s third argument is that the trial court was not permitted to use a friend of the
court (FOC) report because it was hearsay evidence for which no exception exists. We conclude
that defendant waived this issue for appeal. “Waiver is different from forfeiture. Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional
relinquishment or abandonment of a known right.’” People v Carines, 460 Mich 750, 762, 597
NW2d 130 (1999), quoting United States v Olano, 507 US 725, 733; 113 S Ct 1770; 123 L Ed 2d
508 (1993). Once a party has waived an issue, it cannot be appealed. People v Adams, 245 Mich
App 226, 239-240; 627 NW2d 623 (2001).
Here, the guardian ad litem noted to the court, “everyone has been supplied with copies
of the friend of the court recommendation prepared by Carol Wallace. And I would move that it
be admitted so that Miss Wallace doesn’t have to testify.” The court noted that Wallace was
present and asked if either plaintiff or defendant wished to have her testify. Plaintiff said, “No, I
don’t” and defendant said, “No.” Thus, defendant effectively waived her right to address this
issue on appeal as she was given the opportunity to have live testimony provided directly by the
author of the FOC report and she turned down this opportunity.
IV
3
In any event, the court noted that even if the higher standard were required, the court “would
come up with the same result as [it was] going to come up with here today.”
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Defendant’s fourth argument is that the trial court improperly concluded that the best
interest factors weighed in favor of plaintiff. Defendant points to eight of the best-interest
factors and finds fault with the trial court’s decision in each of them. In reviewing the trial
court’s findings, we must defer to the fact-finder’s determination of credibility. Mogle, supra at
201.
MCL 722.23 provides as follows:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial
home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute.
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Factor (b)
The trial court found the parties equal on this factor without citing the supporting
evidence underlying that conclusion. However, the trial court is not required to comment on
every matter in evidence. LaFleche v Ybarra, 242 Mich App 692, 700; 619 NW2d 738 (2000).
Defendant’s argument is predicated on a false premise and a non sequitur. She asserts
that her mother testified that the oldest child missed CCD classes and his first holy communion
after being placed in plaintiff’s care. However, Janice Barton testified that the boy “missed out
on his first communion because of all of this.” She did not testify that he missed CCD classes;
rather, that was the premise in the question preceding this answer. Moreover, defendant’s
proffered conclusion that “placing the children [with plaintiff] disrupted their” religious
education does not follow from the fact that the oldest child did not participate in his first holy
communion at a time when he apparently could have. Barton testified that the boy missed his
communion “because of all this.” This answer does not place the blame for the missed
communion at plaintiff’s doorstep. Instead, it implies that the continuing upheaval in the
children’s lives is responsible, and the record aptly demonstrates that both parties have had a
hand in creating this situation. This Court will not disturb the trial court’s factual finding in this
regard.
Factor (c)
The court found the parties equal on this factor. Defendant argues that this factor should
have weighed in her favor. Defendant asserts that the evidence showed that neither plaintiff nor
defendant have strong employment histories and both relied on outside agencies for assistance,
with plaintiff needing assistance to find beds for the children. Defendant also notes that there
was testimony that plaintiff needed help on budgeting.
The trial court observed that both parties do not have positive employment history and
have relied on agencies to help them support the children. The trial court noted that plaintiff is in
the process of getting a job. The fact that plaintiff needed help in securing bunk beds and
continues to need help in budgeting does not mean that defendant, by default, is better able to
provide for the physical needs and comforts of the children. Again, both have required state help
in meeting the needs of their children. Indeed, there was testimony that plaintiff was more
receptive to this help than defendant.
Factor (d)
The trial court ruled that plaintiff had an edge on this factor as the kids had been living
with him for several months. Defendant argues that there was evidence to show that the children
did not have proper beds and that plaintiff would soon be moving again. Defendant also argues
that there was testimony that the children were provided for when they were with her in both
their physical and emotional needs.
The trial court noted, as did the FOC report, that each of the parties have moved a
number of times. The court concluded that plaintiff had a slight edge regarding the stability
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factor because he has had the children for the last several months. Although this is a close
question, the trial court’s finding is not against the great weight of the evidence.
Factor (e)
The trial court noted that neither party is part of an intact family unit; therefore the parties
were equally situated. Defendant points out that plaintiff has children from other relationships
and that he does not have a consistent relationship with those children. Defendant argues that it
is clear from the testimony that plaintiff has an unstable home-life because he was then living
with his parents and had prior failed attempts at creating a home with other romantic partners.
Defendant argues that she has a consistent family unit for the boys to live in.
The circumstance of plaintiff’s relationship with other children does not speak to the
permanence of the family unit in this proposed custodial home. Further, the fact that plaintiff’s
second marriage ended in 2005 does not mean that the family unit he had established with his
children as of 2008 was unstable. Defendant clearly did not think this argument through prior to
its inception because this fallacious reasoning could also be used to support the conclusion that
defendant created instability in the family unit by divorcing plaintiff. While a pattern of broken
homes could raise a concern about what might occur in the future, it does not necessarily mean
that there is no “permanence, as a family unit, of the existing or proposed custodial home.”
Factor (f)
The trial court found that plaintiff and defendant were equal in moral fitness. Defendant
argues that this conclusion does not take into consideration the fact that plaintiff disobeyed a
court order to move the children more than 100 miles away. As it relates to plaintiff’s parenting,
defendant argues, the prohibited move of the children shows that plaintiff cannot be expected to
follow the other orders of the court regarding the children, thus putting the children at risk.
Defendant argues that this factor should have weighed in favor of her.
The trial court stated that there was no real distinction between the moral fitness of the
parties as it relates to the children. It is true that in violation of the judgment of divorce, plaintiff
did move the children to Chicago without the court’s permission. See MCL 722.31. However,
he did so in the apparent attempt to find work. The court allowed the move after-the-fact,
observing that “given the economic circumstances of the state of Michigan right now, I can’t
really expect somebody to . . . stay here.” In light of other moral “lapses” evidenced in the
record (including the circumstances leading to the removal of the children from defendant’s
custody in 2006), plaintiff’s changing of the children’s domicile without prior approval does not
mean that the court’s finding was against the great weight of the evidence.
Factor (h)
The trial court found that plaintiff had a better home, school, and community record with
the children. Defendant argues that the school record with plaintiff was no better than with
defendant and the trial court should have ruled this factor equally, if not finding in defendant’s
favor. Defendant argues that the evidence presented regarding the children missing school while
with her was only included in the FOC report, which she argues was inadmissible. Further,
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defendant argues, the children were delayed in starting school after plaintiff moved because they
did not have the necessary physical for the school system.
As discussed above, no error requiring reversal occurred with respect to the use of the
FOC report. The trial court correctly noted that when the children were living with defendant
they missed more school than when they lived with plaintiff. The FOC report states that the
oldest child had 27½ absences and was tardy 14 times in the 2006/2007 school year, and this
poor attendance was negatively affecting the boy’s school performance. Additionally, the oldest
child missed 5 days of school while living with plaintiff as compared to 21 absences while living
with defendant over the same time period. The trial court correctly considered this information
and reasonably concluded that plaintiff has a better home, school, and community record.
Factor (j)
Again, the trial court found the parties to have an equal, albeit troubled record on this
factor. Defendant argues that this finding is against the great weight of the evidence because the
court failed to acknowledge that plaintiff moved the children more than 100 miles away.
However, the court did not find that both parties were equal because each is willing and able “to
facilitate and encourage a close and continuing parent-child relationship between the child[ren]
and the other parent.” Rather, the court noted that this has been “a problem for both parties.”
Moving the children is just symptomatic of this ongoing problem. Even if defendant is accurate
that plaintiff did not work out a visitation plan before moving the children more than 100 miles
away, there is evidence to indicate that plaintiff contacted authorities to attempt to schedule
visitation time with defendant. The trial court finding on this factor is reasonable given the
evidence.
Factor (l)
The trial court implied that this catch-all factor weighed in plaintiff’s favor. Defendant
argues that the trial court should have concluded that the parties were equal under this factor, and
not favor plaintiff in this regard. Defendant also argues that the trial court erred when it failed to
indicate the extent it was going to consider the CPS involvement, when it failed to acknowledge
the CPS reports against plaintiff, and when it failed to consider plaintiff’s lack of education and
how that will affect the children.
Simply because the trial court did not mention pieces of evidence does not mean that that
evidence was not considered as evidence. Fletcher, supra at 883. For example, the court’s
failure to reference CPS referrals regarding plaintiff does not mean they were not considered.
Indeed, the court referenced “a number of . . . referrals” without delineating between the parties.
This can reasonably be understood to incorporate all CPS referrals.
Ultimately, the trial court was obligated to determine the weight and credibility of the
evidence presented, and it did just that. Gorelick v Dep’t of State Hwys, 127 Mich App 324, 333;
339 NW2d 635 (1983). The trial court’s conclusion was not against the great weight of the
evidence.
V
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Defendant’s fifth argument is that the trial court erred in granting permission to plaintiff
to change the primary residence of the children more than 100 miles. We review a trial court’s
decision regarding a change in domicile of minor children for an abuse of discretion and the trial
court’s findings are reviewed under the great weight of the evidence standard. Grew v Knox, 265
Mich App 333, 339; 694 NW2d 772 (2005).
“MCL 722.31 specifically applies to all cases in which a parent wishes to change the
legal residence of a child ‘whose custody is governed by court order . . . .’” Spires v Bergman,
276 Mich App 432, 436; 741 NW2d 523 (2007), quoting Grew, supra at 338. Moreover,
according to MCR 3.211(C)(3), “a parent whose custody or parenting time of a child is governed
by the order shall not change the legal residence of the child except in compliance with section
11 of the Child Custody Act, MCL 722.31.” Therefore, “[w]hen a parent wishes to move with a
minor child to a location more than 100 miles away, and the parent does not have sole legal
custody, the trial court must consider the [MCL 722.31(4)] factors, keeping the child as its
primary focus.” Rittershaus, supra at 465 (emphasis added). See footnote 1, infra. These factors
are:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child. [MCL 722.31(4).]
As is required with the best interest factors, the trial court should consider and explicitly
state its findings and conclusions with respect to each of the factors listed in MCL 722.31(4).
See Bowers, supra at 328.
Here, plaintiff asked the court that he be allowed to move to Chicago with the children.
The trial court expressly stated on January 11, 2008, that plaintiff “may be allowed to move once
the custody—once this thing is done,” but that the issue would not be addressed until the custody
decision had been made. Despite the trial court direction, plaintiff moved the children some time
between January 11, 2008 and February 22, 2008.
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When the trial court made its custody recommendation at the February 22, 2008 hearing,
it stated:
So be that as it may, the question is, how do I interpret and how do I come
up with a, you know, a practical solution? Well, what I’m going to do is, I’m
going to follow the friend of the court’s recommendation that—in this particular
case. I think we’ll have joint custody of the kids, joint physical custody of the
kids, which is going to be difficult because Mr. Rowland apparently has moved to
Chicago. And given the economic circumstances of the state of Michigan right
now, I can’t really expect somebody to, you know, ultimately stay here in the—So
I’m going to allow that move, but there’s a couple of conditions.
The trial court stated that protective services would continue to check on plaintiff and the
children, and that a schedule would be created by the friend of the court.
The trial court did not consider on the record the MCL 722.31(4) factors in making the
decision about whether plaintiff could move the children more than 100 miles away as required
by statute and court rule. The trial court summarily stated that he could not expect someone to
stay in Michigan given the economy, but there is no indication that this statement was made with
the child as the primary focus in the court’s deliberations. Therefore, the trial court improperly
applied the law under MCL 722.31(4) and this case must be remanded for a reconsideration of
whether a move of more than 100 miles away is in the children’s best interest according to MCL
722.31(4). We leave it to the sole discretion of the trial court whether there is any need for
additional testimony or argument on this issue.
Affirmed in part and remanded in part for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Alton T. Davis
/s/ Kurtis T. Wilder
/s/ Stephen L. Borrello
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