TABITHA TYREE V KESHWAN AMOR SR
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STATE OF MICHIGAN
COURT OF APPEALS
TABITHA TYREE,
UNPUBLISHED
September 17, 2009
Plaintiff-Appellant,
v
No. 290634
Wayne Circuit Court
Family Division
LC No. 08-153578-DS
KESHWAN AMOR, SR.,
Defendant-Appellee.
Before: Donofrio, P.J., and Wilder and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right the order of the trial court granting joint legal and physical
custody of the minor child to plaintiff and defendant, and awarding primary physical custody to
defendant. We affirm.
I. Established Custodial Environment
Plaintiff first argues that the trial court erred in concluding that there was an established
custodial environment for the child with defendant; rather, plaintiff contends that an established
custodial environment existed with her. We disagree. In Phillips v Jordan, 241 Mich App 17,
20; 614 NW2d 183 (2000), this Court set forth the applicable standards of review in child
custody cases as follows:
We apply three standards of review in custody cases. The great weight of the
evidence standard applies to all findings of fact. A trial court’s findings regarding
the existence of an established custodial environment and regarding each custody
factor should be affirmed unless the evidence clearly preponderates in the
opposite direction. An abuse of discretion standard applies to the trial court’s
discretionary rulings such as custody decisions. Questions of law are reviewed for
clear legal error. A trial court commits clear legal error when it incorrectly
chooses, interprets, or applies the law.
MCL 722.27(1)(c) provides, in pertinent part:
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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.
The Michigan Supreme Court explained that an established custodial environment is “a custodial
relationship of a significant duration in which [the child is] provided the parental care, discipline,
love, guidance and attention appropriate to his age and individual needs; an environment in both
the physical and psychological sense in which the relationship between the custodian and the
child is marked by qualities of security, stability and permanence.” Berger v Berger, 277 Mich
App 700, 766; 747 NW2d 336 (2008), quoting Baker v Baker, 411 Mich 567, 579-580; 309
NW2d 532 (1981).
The trial court found that the established custodial environment was with defendant. We
cannot conclude that “the evidence clearly preponderates in the opposite direction.” Phillips,
supra at 20. The trial court explained the rationale underlying its finding, that an established
custodial relationship existed between the child and defendant, as follows:
The custodial environment of the child, it appears that the parties were
sharing parenting time with the child equally up until September of 2007 where
the child then resided with the father during the school week and the mother on
the week-end.
Then for June of 2008 and July, they alternated weeks. And since the end
of July of 2008 to present, the child has been with the father.
Defendant testified as follows, in response to questions from the trial court:
Q. And what was the history of the parenting time between you and the child?
A. Prior to him going to school, we split the week and every other weekend. As
he started school, he stayed with me every, like during the week and with his
mom on the weekend.
Q. So in September, 2007, he was with you during the week and mom on the
weekend?
A. Yes, ma’am.
Q. And then what – and in the summer?
A. In the summer of 2008, he, we alternated weeks.
Q. And then what happened – what happened in July?
A. July, I relocated to Georgia.
Q. Did you have the mom’s permission?
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A. No.
This testimony demonstrates that the trial court’s determination, that an established
custodial environment existed with defendant, was based upon record evidence. Conversely, in
her brief, plaintiff argues for the first time, without citation to any evidence, that she was in fact
the primary custodial parent for most of the five years of the child’s life. In addition, we observe
that the record, including the hearing transcript and the Family Assessment Mediation Evaluation
(“FAME”) report that was admitted into evidence, does not reveal that plaintiff claimed that she
was the primary custodial parent. The family counselor did observe that before the child began
his academic career, plaintiff and defendant shared custody of the child, and evidence that
plaintiff was the primary custodial parent is absent from the record. Accordingly, we conclude
that the trial court’s determination that an established custodial environment existed between the
child and defendant was based upon record evidence, and in the absence of any evidence to the
contrary, the evidence does not clearly preponderate in the opposite direction. Phillips, supra at
20.
II. Best Interest Factors
Plaintiff next argues that the trial court’s findings and conclusions with respect to the
statutory factors set forth under MCL 722.23, upon which the trial court relied in awarding
primary custody of the child to defendant, were against the great weight of the evidence. We
disagree.
In child custody cases, the trial court must ascertain the best interest of the child by
performing an analysis using the factors set forth under MCL 722.23. Foskett v Foskett, 247
Mich App 1, 9; 634 NW2d 363 (2001). The trial court must consider and explicitly articulate its
findings and conclusions regarding each factor under MCL 722.23. Bowers v Bowers, 190 Mich
App 51, 55; 475 NW2d 394 (1991).
MCL 722.23 provides:
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.
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(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.
The trial court properly articulated its findings and conclusions with respect to each
factor under MCL 722.23. Plaintiff, on appeal, does not dispute the trial court’s findings with
respect to factors (a), (b), (e), (f), (i), and (k). Plaintiff does dispute the trial court’s findings and
conclusions with respect to factors (c), (d), (g), (h), and (j). With respect to factor (c), “[t]he
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,” the trial court concluded that, “[t]his factor is favorable
to both.” MCL 722.23(c). Plaintiff argues that this factor was slightly favorable to her because
her employment history and income was more “stable.” However, we cannot conclude that the
evidence “clearly preponderates in the opposite direction” of the trial court’s finding that the
factor favored both plaintiff and defendant. Phillips, supra at 20. We observe that plaintiff fails
to factually support her contention that her income and employment history is “more stable,” and
further observe that the family counselor reported that plaintiff returned to work in March of
2008, following a two-year layoff. Further, we observe that defendant testified that he worked as
a full-time dental assistant, was paid $12 per hour, had medical insurance, and was able to
provide the child with food, clothing and medical care. Because plaintiff cannot demonstrate
that the evidence clearly preponderates in the opposite direction, we affirm the trial court’s
finding and conclusion with respect to factor (c). Phillips, supra at 20.
Plaintiff next disputes the trial court’s finding and conclusion regarding factor (d). Factor
(d) addresses, “[t]he length of time the child has lived in a stable, satisfactory environment, and
the desirability of maintaining continuity.” MCL 722.23(d). The trial court concluded, “this
factor favors the father in maintaining continuity.” Plaintiff argues, again without evidentiary
support, that the trial court’s finding and conclusion was erroneous because “the minor child
primarily lived with [plaintiff] for the first [four and one-half] years of his life.” However, the
trial court’s finding and conclusion are supported by defendant’s testimony that defendant
intended to reside in Georgia for the foreseeable future, and was engaged to his girlfriend.
Plaintiff, in failing to provide evidentiary support, cannot demonstrate with bare unsupported
allegations that evidence clearly preponderates in the opposite direction of the trial court’s
finding and conclusion with respect to factor (d). Phillips, supra at 20. Accordingly, plaintiff’s
argument lacks merit.
Plaintiff next contests the trial court’s finding and conclusion with respect to factor (g).
Factor (g) addresses, “[t]he mental and physical health of the parties involved.” MCL 722.23(g).
The trial court acknowledged that defendant threatened to commit suicide in 2004 and 2006, but
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concluded that the factor favored neither plaintiff nor defendant. Plaintiff argues that in light of
defendant’s previous suicidal threats and history of domestic violence, and the absence of
evidence that she had suffered mental problems, the trial court should have concluded that this
factor favored plaintiff. Plaintiff fails to demonstrate that the evidence clearly preponderates in
the opposite direction. Phillips, supra at 20. The trial court, in its analysis, observed that both
plaintiff and defendant claimed “to have good mental health,” and further observed that “there
was no actual [suicide] attempt,” and noted defendant’s testimony that his threat “was not
serious.” Further, contrary to plaintiff’s contention that there was no evidence to impugn her
mental health, the family counselor, in the FAME report, observed that plaintiff “reported she
was arrested for felonious assault with a knife against the father of her oldest son in 2000.”
Although we acknowledge that multiple suicide threats and history of domestic violence can
imply mental health concerns, we cannot conclude that the evidence clearly preponderates in
opposition to the trial court’s finding and conclusion that factor (g) favored neither plaintiff nor
defendant. Phillips, supra at 20.
Plaintiff next argues that the trial court erred in finding and concluding that factor (h)
favored defendant. Factor (h) addresses, “[t]he home, school, and community record of the
child.” MCL 722.23(h). The trial court found that the child is doing well academically, and
defendant had enrolled the child in school “in the appropriate level.” According to plaintiff,
“both parents participated in the education of the minor child.” Plaintiff argues that this “Court
should conclude that the child, in his best interest, remain in Michigan.” In presenting her
conclusory argument without reference to evidence, plaintiff misapprehends the standard of
review with respect to this issue, and cannot demonstrate that the evidence clearly preponderates
in her favor. Phillips, supra at 20.
Plaintiff next asserts that the trial court erred in concluding that factor (j) favored both
plaintiff and defendant. Factor (j) addresses, “[t]he 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.” MCL 722.23(j). The trial court expressed its
concern regarding the fact that defendant moved himself and the child to Georgia without
plaintiff’s knowledge or consent. However, the trial court also acknowledged that plaintiff and
defendant each indicated willingness to allow parenting time with the other parent, and stated, “I
believe that both would in the future facilitate the relationship with the other parent,” and
concluded that “this factor favors both.”
We cannot conclude that the evidence clearly preponderates in the opposite direction of
the trial court’s finding and conclusion that each party would encourage a close and continuing
parent-child relationship between the child and the other parent. Phillips, supra at 20. The trial
court observed that defendant indicated his willingness to allow plaintiff to visit, but that plaintiff
refused to contribute to the transportation costs. Because plaintiff cannot show that the evidence
clearly preponderates in the opposite direction of the trial court’s finding and conclusion that
each party would encourage a close and continuing parent-child relationship between the child
and the other parent, her argument fails. Id.
Plaintiff has failed to demonstrate that the trial court erred in its findings and conclusions
with respect to the “best interest of the child” factors under MCL 722.23. The trial court
properly applied the correct standard, and, as explained herein, the trial court’s findings and
conclusions were not against the great weight of the evidence. Foskett, supra at 9.
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Affirmed.
/s/ Pat M. Donofrio
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
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