LILLY HAHN V BENJAMIN BELOTE
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STATE OF MICHIGAN
COURT OF APPEALS
LILLY HAHN,
UNPUBLISHED
January 20, 2009
Plaintiff-Appellee,
v
No. 286077
Branch Circuit Court
LC No. 05-050287-DS
BENJAMIN BELOTE,
Defendant-Appellant.
Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ.
PER CURIAM.
Defendant Benjamin Belote appeals as of right the trial court’s decisions to deny Belote’s
motion for change in domicile from Ohio to Michigan, and to grant a change in physical custody
giving him and plaintiff Lilly Hahn joint physical custody of their minor children. We affirm.
I. Basic Facts And Procedural History
Hahn and Belote were never married, but they have two sons together. Hahn and Belote
met in 2001, and Hahn became pregnant in 2002. They lived with Belote’s parents in Grand
Rapids, Michigan from June 2002 until November 30, 2002. At that time, Hahn and Belote
moved into an apartment in Grand Rapids. After their first son was born, Hahn and Belote
continued to live together in Grand Rapids. In October 2003, Hahn and Belote were involved in
an altercation, and Hahn moved to Sunbury, Ohio. After she moved to Ohio, Hahn and Belote
continued to date sporadically. In February 2005, Hahn and Belote attempted to reconcile their
relationship and leased an apartment together in Coldwater, Michigan. Shortly after moving to
Coldwater, Hahn discovered that she was pregnant with their second son. After learning that she
was pregnant, Hahn and Belote had another altercation, and Hahn moved back to Ohio. After
another attempt to reconcile in 2005, Hahn filed an action for child support in Michigan, but she
permanently moved to Ohio. Belote thereafter moved to Ohio in May 2005.
In March 2006, the trial court ordered Hahn and Belote to share joint legal custody of
their children. The trial court also ordered that Hahn was to retain physical custody and granted
Belote parenting time of one full week and one weekend per month. In August 2006, police
were dispatched to Hahn’s residence because she threatened suicide and cut herself. In February
2007, the Friend of the Court recommended that Belote be given primary care of the children.
After an evidentiary hearing, the trial court ordered that Hahn and Belote continue to share joint
legal custody, but the court felt it was in the children’s best interest to change primary care of the
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children to Belote. The trial court cited Hahn’s mental health issues and lack of a satisfactory
stable environment as reasons to change custody. The trial court granted Hahn parenting time of
one full week and one weekend per month; however, the parenting time was contingent upon
Hahn complying with the requirements proscribed by mental health professionals. The trial
court stated that this was a “provisional order” and that if Hahn complied with the conditions, the
trial court would consider an expansion of parenting time.
On October 31, 2007, Belote moved for change of domicile and sought permission to
move back to Michigan. In February 2008, Hahn moved for a change in custody, asking the trial
court to order joint physical custody. Both motions were heard at the same time.
Belote testified that after moving to Ohio in 2005, he was employed at Advanced Auto
Distribution earning $12.75 an hour. In October 2007, Belote was laid off because of a lack of
business. After he was laid off, Belote was temporarily employed at a Ford Dealership for
approximately three weeks as a mechanic earning $16 an hour, but he was laid off when there
was insufficient business to sustain his position. Belote receives unemployment and food stamp
assistance. Belote also supplements his income with his savings and using his mechanic skills to
perform side jobs. Belote wished to move to Michigan because the job prospects for his position
were better, and he had family in Michigan to help support the children.
Since losing his job, Belote utilized various services offered through the Ohio Work
Force Program to improve his resume and interview skills. Belote also performed several
internet searches looking for available jobs in the automotive or mechanical field. Over a 60-day
period, Belote searched the five counties closest to his residence and found only one job
matching his criteria. Belote excluded the southern part of Columbus, Ohio in his job search
because the commute would be too long from his present home. Additionally, Belote has
performed several job searches through the Michigan Talent Bank and, using the same criteria,
found 78 jobs over a 30-day period. Belote received two job offers from employers in Michigan
but turned them down because he was not allowed to move the children out of Ohio. Belote is
on good terms with the manager at one of the employers that offered him a job, and he expected
that he would be offered a job again when a position became available. In addition, the two
offered jobs in Michigan had a higher rate of pay than Belote was earning in Ohio. Belote
acknowledged that the overall unemployment rate was worse in Michigan than Ohio, but he
testified that in his specific field, there were more opportunities in Michigan.
Belote also testified that he was not moving to take the children away from Hahn, and he
submitted a proposed plan for parenting time. Belote proposed that Hahn receive one weekend a
month and six weeks during the summertime. As for holidays and vacations, Belote proposed
that the parties either split the time or have alternating schedules with the children. Belote
planned to move approximately 300 miles away from Hahn and recognized that parenting time
would be a struggle. Belote proposed that he meet Hahn at the halfway point in Fort Wayne,
Indiana. In addition, to foster a relationship between the children and Hahn, and because
telephone calls were a point of contention between Hahn and Belote, Belote proposed that he
purchase a cellular telephone for the children to enable Hahn to call them directly.
Hahn testified that Belote told her three weeks after he was awarded custody that he and
the children were planning to move back to Michigan. Hahn stated that Belote wanted to return
to Michigan because his dad and uncle were sick. Hahn refused to give permission for Belote to
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move the children to Michigan because she felt that she did not get enough time with the
children under the existing arrangement, and she recognized that if the children moved to
Michigan she would see them even less. Hahn testified that Belote refuses to allow her to speak
over the telephone with the children while they are with him. Despite the fact that Hahn and
Belote agreed to a telephone schedule of 5:00 p.m. to 8:00 p.m. on Wednesdays and Saturday,
Hahn said that sometimes Belote would just answer the telephone then hang up without talking.
Hahn testified that she deserved joint custody of the children because she fostered a good
relationship between the children and Belote by avoiding negative talk about Belote. Hahn
attended church three out of four weeks, did not use drugs, and only consumed alcohol
occasionally. Hahn testified that she compiled with the trial court order that she receive mental
health treatment by seeing a therapist and taking medication. In addition, Hahn said she was
learning stress coping techniques and had not cut herself or attempted suicide since the incident
in August 2006. Hahn further testified that her fiancé had a connection with the children and
loved them. Hahn asserted that she kept her house clean, kept food in the house, and when she
traveled with the children, she made sure they were in a car seat.
Belote testified that he had full physical custody of the children since July 2007. While
in his care, Belote made sure that the children’s shots were up to date and that they had regular
dentist appointments. Belote acknowledged that the children love Hahn, but he testified that at
times, they seem unmotivated to go see her. Belote related an incident where he saw that Hahn’s
vehicle was pulled over by the police and the children were inside the car wearing only diapers.
One of the children was not in a car seat. Belote drove Hahn and the children home and found
beer bottles scattered around Hahn’s apartment and a gun on the couch. Belote admitted that
Hahn had been more stable since seeing the therapist, but he was concerned that she would not
be able to handle the stress associated with extended visitation.
Belote testified that frequently Hahn was late or refused to come to the planned
exchanges for parenting time. On one incident, Hahn did not appear and Belote took the children
directly to Hahn’s house. Belote found Hahn in her pajamas and the house in disarray. At
another incident, Hahn refused to allow the children to leave with Belote, and he had to call the
police to intercede. Belote confronted Hahn and her fiancé after he found out that the fiancé was
spanking the children, and he noticed bruises and marks on the children’s buttocks and upper
thighs. Belote testified that the interaction between him and Hahn needed to be clearly defined.
Following the testimony, the trial court denied Belote’s request to change domicile and
granted Hahn’s motion for joint physical custody.
II. Change Of Domicile
A. Standard Of Review
Belote argues that the trial court abused its discretion in denying his motion for a change
of domicile because the facts and circumstances supported his request to move to Michigan. We
review a decision on a petition to change the domicile of a minor child for abuse of discretion.1
1
Brown v Loveman, 260 Mich App 576, 600; 680 NW2d 432 (2004).
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In reviewing the decision, the trial court’s findings are reviewed under the great weight of the
evidence standard.2 “An abuse of discretion is found only in extreme cases in which the result is
so palpably and grossly violative of fact and logic that it evidences a perversity of will or the
exercise of passion or bias.”3
B. The Factors
In determining whether a change in domicile is appropriate, the trial court is required to
weigh the factors listed in MCL 722.31(4), keeping the child as the primary focus:
(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 manner that
can provide an adequate basis for preserving and fostering the 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.[4]
In considering factor (c), the proportion of time the child spends with the parent after the
move does not need to be identical to the time before the move, and it is recognized that weekly
visitation may not be possible when state borders separate the parents.5 The proposed plan,
however, needs to “provide a realistic opportunity to preserve and foster the parental relationship
previously enjoyed by the noncustodial parent.”6
2
Id.
3
Phillips v Jordan, 241 Mich App 17, 29; 614 NW2d 183 (2000). See Shulick v Richards, 273
Mich App 320, 325; 729 NW2d 533 (2006) (stating that this definition of the abuse of discretion
standard still applies to decisions under the Child Custody Act, MCL 722.21 et seq.).
4
MCL 722.31(4).
5
Brown, supra at 603.
6
Mogle v Scriver, 241 Mich App 192, 204; 614 NW2d 696 (2000).
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C. Analysis
The trial court reviewed all the necessary factors in MCL 722.31(4), and determined that
the facts of this case did not implicate MCL 722.31(4)(b), (d), and (e). Specifically, the trial
court found that both parties utilized their parenting time with the children and even though the
trial court was skeptical of Belote’s motives for moving, the trial court found no evidence that he
was attempting to frustrate Hahn’s parenting time. The trial court also determined that a desire
to gain a financial advantage with regard to child support did not motivate either party, and
neither party alleged domestic violence.
With regard to MCL 722.31(4)(a), the trial court accepted Belote’s claim that there may
be more jobs in Michigan for his skill set and that a change in residence could improve his
current circumstances. “It is well established that the relocating parent’s increased earning
potential may improve a child’s quality of life.”7 However, the parent’s increased earning
potential alone does not compel a finding that a move will improve the child’s quality of life.8
Here, the record does not support that there was any other significant benefit to the children in
the area where Belote proposed to move. Moreover, the trial court suggested that Belote broaden
his job search to include portions of the Columbus Metro Area, which he had not done. Thus, it
appears that this factor did not weigh in favor of allowing the change of domicile.
The trial court appears to have based its decision primarily on its weighing of MCL
722.31(4)(c). The trial court first found that both parties would do everything to comply with a
modification, but the trial court found that the proposed schedule would not give Hahn “adequate
opportunity to preserve and foster the relationship she has with the [children].” The trial court
focused on the ages of the children and its desire to see that Hahn receive more time with the
children in deciding this factor. The trial court recognized that, until recently before the hearing,
Hahn was the primary caregiver to the children since birth, and the proposed parenting time
schedule of one weekend a month and six weeks in the summer did not give Hahn an adequate
opportunity to maintain her relationship with the children. In addition, the trial court recognized
that the children were very young and that only one of them was of age to start in preschool. The
trial court said that it did not “see any feasible way of maintaining the contact between the kids
and their mom if they were to be removed to Michigan.”9
The trial court’s findings of fact were not clearly erroneous. On the record, the trial court
properly considered all the factors mandated under MCL 722.31(4), and its decision to deny
Belote’s motion for a change of domicile was not “so palpably and grossly violative of fact and
logic that it evidences a perversity of will or the exercise of passion or bias.”10 The trial court
7
Rittershaus v Rittershaus, 273 Mich App 462, 466; 730 NW2d 262 (2007).
8
See id. at 466-467 (finding that, in addition to an increased earning component, the children
would be benefited by the presence of a large extended family and beneficial school programs).
9
Cf. id. at 468 (finding that it was possible to order a modification of the parenting time schedule
in a way that would adequately preserve and foster the parent-child relationship when 1) the
children there were older than the children at issue herein and 2) the relocating parent had
physical custody of the children since the parties’ divorce).
10
Phillips, supra at 29.
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kept its primary focus on the young children, their needs, and their relationship with their
mother.
III. Change In Circumstance
A. Standard Of Review
Belote argues that the trial court erred when it granted Hahn’s request for a change in
physical custody because the facts did not support a change in circumstances. According to
Belote, the trial court determined that a custodial environment existed with him but failed to
show either a change in circumstances or a proper cause before proceeding with its analysis of
the best interest factors. A trial court’s decision on whether an established custodial environment
exists is a question of fact, and this Court must affirm the trial court’s findings unless those
findings were “against the great weight of the evidence.”11 “A finding is against the great weight
of the evidence if the evidence clearly preponderates in the opposite direction.”12 “A trial court’s
discretionary rulings, such as the court’s determination on the issue of custody, are reviewed for
an abuse of discretion.”13
B. Applicable Legal Principles
A trial court may amend its previous custody judgment or order only for proper cause
shown or because of a change in circumstances.14 The party petitioning for a change of custody
always bears the burden of proving proper cause or change in circumstance by a preponderance
of the evidence.15 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.”16 “These initial steps to changing custody . . . are intended to erect a
barrier against removal of a child from an established custodial environment and to minimize
unwarranted and disruptive changes of custody orders.”17
To constitute proper cause meriting consideration of a custody change, there must be
“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.”18 The
appropriate grounds should be relevant to at least one of the statutory best interest factors,
determined on a case-by-case basis.19 In addition, to establish a change of circumstances, “a
11
Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008); see also MCL 722.28.
12
Id.
13
Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006).
14
MCL 722.27(1)(c); Rittershaus, supra at 473.
15
Rittershaus, supra at 473; Mann v Mann, 190 Mich App 526, 535; 476 NW2d 439 (1991).
16
Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).
17
Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (quotations omitted).
18
Id. at 511.
19
Id. at 511-512.
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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 well-being, have
materially changed.”20 The trial court should keep in mind that “[p]roviding a stable
environment for children that is free of unwarranted custody changes (and hearings) is a
paramount purpose of the Child Custody Act.”21 The trial court should generally limit its
consideration to events occurring after entry of the most recent custody order.22
C. Applying The Law
Here, the trial court erred by failing to clearly make the threshold determination that there
existed proper cause or a material change of circumstances before analyzing the best interest
factors to determine whether to change the child’s primary physical custody from Hahn to
Belote.23 An evidentiary hearing, however, is not always required to resolve this initial issue
because “[o]ften times, the facts alleged to constitute proper cause or a change in circumstances
will be undisputed, or the court can accept as true the facts allegedly comprising proper cause or
a change in circumstances, and then decide if they are legally sufficient to satisfy the standard.”24
Therefore, we find the court’s failure to make a threshold determination harmless on the basis of
our conclusion that the facts alleged by Hahn were sufficient to find proper cause or a change in
circumstances.25
The record reflects that until August 2007, Hahn enjoyed primary physical custody of the
children. After the trial court changed the custody of the children to Belote, Hahn continued to
enjoy extensive parenting time. Hahn is actively seeking treatment for her anxiety and is
enrolled in child development classes. When the trial court initially removed the children from
Hahn, it indicated that the change in custody was temporary and would be reviewed after Hahn’s
behavior was properly evaluated. We conclude that Hahn’s swift handling of her problems and
behavioral corrections, along with her desire to regain physical custody of the children under her
new circumstances, are sufficient to find proper cause or a change in circumstances.26 Therefore,
despite the trial court’s failure to find a proper cause or a change in circumstances explicitly, the
record clearly supports a conclusion that there was “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.”27
20
Killingbeck v Killingbeck, 269 Mich App 132, 145; 711 NW2d 759 (2005).
21
Vodvarka, supra at 511.
22
Id. at 501.
23
See id. at 508-509.
24
Id. at 512; see MCR 3.210(C)(8).
25
Id. at 512.
26
See Smilgus v Smilgus, 328 Mich 19, 21-22, 42 NW2d 898 (1950).
27
Vodvarka, supra at 511.
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IV. Joint Custody Determination
A. Standard Of Review
Belote argues that joint custody was inappropriate because the parties are unable to
cooperate. Notably, Belote does not argue that the trial court’s findings in weighing the best
interest factors were against the great weight of the evidence or that there was not clear and
convincing evidence. We review a trial court’s discretionary rulings, such as to whom custody is
granted, for an abuse of discretion.28
B. Applicable Legal Principles
A trial court may change an existing custodial environment into a joint physical custody
situation if the court finds that it is beneficial for the children to see both parents and that only
minor alterations to the physical custody arrangement are required.29 The parties’ ability to
cooperate is only one factor for the court to consider in its decision to award joint custody.30
C. Applying The Law
Belote’s argument that the trial court should not have awarded joint custody because the
parties are unable to cooperate is without merit. The parties have shared joint legal custody since
the original custody award. In order to have joint legal custody the parents must share decisionmaking authority for the important decisions affecting the welfare of the child including medical
and educational decisions.31 The parties have generally agreed concerning the children’s
religious beliefs and schooling. Personal animosity, not the welfare of the children, seems to be
the subject of the parties’ disputes. Despite occasional disputes, the parties have been able to
maintain an extensive parenting time schedule and their contact with each other will not
significantly change because of the new custody arrangement. Therefore, the trial court did not
abuse its discretion in awarding joint custody.
Affirmed.
/s/ Jane M. Beckering
/s/ William C. Whitbeck
/s/ Michael J. Kelly
28
Sinicropi, supra at 155; Vodvarka, supra at 507-508.
29
Shulick, supra at 333.
30
MCL 722.26a(1).
31
Shulick, supra at 327.
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