JOEL MACHETA V CHRISTOPHER GINTER
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STATE OF MICHIGAN
COURT OF APPEALS
JOEL MACHETA,
UNPUBLISHED
October 13, 2009
Plaintiff-Appellant,
v
No. 290576
Schoolcraft Circuit Court
LC No. 02-003308-DS
CHRISTOPHER GINTER,
Defendant-Appellee.
Before: Saad, C.J., and O’Connell and Zahra, JJ.
PER CURIAM.
Plaintiff Joel Macheta appeals as of right from an order awarding defendant Christopher
Ginter sole legal and physical custody of the parties’ minor child. We affirm.
Although plaintiff and defendant never married, they lived together and had one child,
born on March 24, 2001. On January 22, 2002, defendant, the child’s father, signed an affidavit
of parentage. The parties ended their relationship in 2002, and the minor child remained with
plaintiff, his mother. On September 17, 2002, the trial court granted plaintiff sole legal and
physical custody.
Defendant did not believe that plaintiff was capable of properly taking care of the child
and filed a motion for a change in custody. In October 2008, a hearing was held before a friend
of the court referee, who subsequently issued an opinion and recommendation awarding
defendant sole legal and physical custody. Plaintiff filed objections, and a de novo hearing was
held in the trial court. The trial court adopted the referee’s findings of fact and recommendation,
and issued an order granting defendant sole legal and physical custody of the parties’ minor
child.
In child custody cases, there are three standards of review:
First, the trial court’s findings of fact are reviewed under the great weight of the
evidence standard and will be affirmed unless the evidence clearly preponderates
in the opposite direction. Fletcher v Fletcher, 447 Mich 871, 877-878; 526
NW2d 889 (1994) (Fletcher I). The trial court need not comment on each item of
evidence or argument raised by the parties, but its findings must be sufficient for
this Court to determine whether the evidence clearly preponderates in the opposite
direction. MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 452; 705
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NW2d 144 (2005). This Court defers to the trial court’s determinations of
credibility. Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008);
Fletcher v Fletcher, 229 Mich App 19, 25; 581 NW2d 11 (1998) (Fletcher II).
Second, a trial court commits clear legal error under MCL 722.28 when it
incorrectly chooses, interprets, or applies the law. Fletcher I, supra at 881.
Third, discretionary rulings are reviewed for an abuse of discretion. Id. at 879;
Shulick v Richards, 273 Mich App 320, 323-325; 729 NW2d 533 (2006).
[McIntosh v McIntosh, 282 Mich App 471, 474-475; 768 NW2d 325 (2009).]
A trial court may modify an established custody order only upon a showing of proper
cause or a change in circumstances demonstrating that the modification is in the best interest of
the child. MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).
The moving party has the burden of proving by a preponderance of the evidence that proper
cause or a change in circumstances exists to warrant a reconsideration of the established custody
order. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675 NW2d 847
(2003). If the moving party fails to meet its burden, the trial court is precluded from revisiting
the custody order. Vodvarka, supra at 508.
Parties to a child custody dispute may submit their case to a referee for resolution of their
dispute. MCL 552.507(2)(d); Harvey v Harvey (Harvey I), 470 Mich 186, 190; 680 NW2d 835
(2004). Following a hearing, the referee must either make a statement of findings on the record
or submit a written report containing a summary of the testimony and a statement of findings,
and must make a recommendation for an order. MCR 3.215(E)(1); Rivette v Rose-Molina, 278
Mich App 327, 329; 750 NW2d 603 (2008). In making a recommendation, the referee must
consider the statutory best interest factors. Rivette, supra at 330. If a party challenges the
referee’s recommendation, the trial court must hold a de novo hearing. MCL 552.507(4);
Harvey I, supra at 190. The referee’s findings and recommendation must be submitted to the
trial court. Harvey v Harvey (Harvey II), 257 Mich App 278, 291-292; 668 NW2d 187 (2003),
aff’d 470 Mich 186 (2004).
Here, the referee found that defendant had demonstrated both proper cause and a change
in circumstances. Specifically, the referee stated,
Clearly there is both proper cause and change in circumstances to review custody.
The assault on the 13 year old child standing alone would support review. Add to
that the unstable and uncertain living environment of Plaintiff, as well as
Plaintiff’s reaction to officials, such as Protective Services Workers and teachers,
who were attempting to intervene to benefit the child and the case fairly cries out
for review.
Plaintiff first argues that the trial court erred in failing to hold an evidentiary hearing and
independently rule on the question whether defendant demonstrated that proper cause or a
change in circumstances existed to warrant reconsideration of the custody order.
However, a trial court is not required to hold a separate evidentiary hearing to determine
whether the moving party has met her burden of proof. Vodvarka, supra at 512. Such issues can
be determined at the de novo hearing. Id. Moreover, the trial court did not err when it adopted
the referee’s findings and conclusion that defendant had met his burden of proof. A “trial court
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may designate a referee to act as a fact-finder in domestic relations matters.” Rivette, supra at
329, citing MCL 552.507. However, a trial court reviewing a referee’s findings and conclusions
must make its own findings and conclusions based on the de novo hearing. Truit v Truit, 172
Mich App 38, 42; 431 NW2d 454 (1988). If a trial court allows the parties to present live
evidence at the de novo hearing, the trial court is not prohibited from considering the referee’s
findings and conclusions in rendering its decision. Dumm v Brodbeck, 276 Mich App 460, 465466; 740 NW2d 751 (2007). Where a referee issues findings and conclusions that comport with
appropriate law and the referee properly applied the law to the governing case, the trial court
may properly adopt the referee’s findings and conclusions. See Rivette, supra at 332-333. Here,
it is apparent that the trial court found, on consideration of the entire record, that the referee
properly analyzed the facts of this case in accord with the applicable law and reached the correct
conclusion. Based on our review of the entire record, we cannot conclude that the trial court’s
findings were against the great weight of the evidence. Nor do we find that either the referee’s
or the trial court’s conclusions of law constitute clear legal error.
However, plaintiff argues that because the referee did not state the specific impact that
the subject conduct would have on the minor child’s well-being, the referee’s findings were
insufficient. Consequently, plaintiff asserts, it was improper for the trial court to adopt the
referee’s findings without making an independent determination on the issue. We disagree. It is
sufficient for the court to state the applicable law and the specific findings on which the court
bases its decision that the moving party has met its burden of proof. See, e.g., Brausch v
Brausch, 283 Mich App 339, 356-358; 770 NW2d 77 (2009). Moreover, it goes without saying
that the child might experience emotional trauma from witnessing plaintiff’s verbally and
physically abusive relationship with her boyfriend and from being uprooted from his home after
fights with the boyfriend.
Lastly, plaintiff argues that the referee made findings that were against the great weight
of the evidence and committed clear legal error in his application of the clear and convincing
evidentiary standard to the best interest of the child factors. Specifically, plaintiff argues that a
majority of the best interest factors should have been weighed in her favor. Accordingly,
plaintiff argues that the trial court abused its discretion when it held that defendant should be
granted sole legal and physical custody of the parties’ minor child.
Custody issues are to be resolved in the child’s best interest, as measured by the best
interest of the child factors found in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631
NW2d 748 (2001). These factors are set forth in MCL 722.23:
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.
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(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.
Where an established custodial environment exists, a trial court may not issue an order changing
the established custodial environment of the child unless the moving party demonstrates by clear
and convincing evidence that the change is in the best interest of the child. MCL 722.27(1)(c).
Changes to a child’s established custodial environment should be permitted only “in the most
compelling cases.” Baker v Baker, 411 Mich 567, 576-577; 309 NW2d 532 (1981).
Here, the referee found that an established custodial environment existed with plaintiff.
The referee correctly held that defendant had to prove by clear and convincing evidence that a
change in custody was in the best interest of the child. Following an analysis of the best interest
factors, the referee held that factors (a), (d), (e), (f), (g), (i), and (j) did not weigh in favor of
either party, that factors (b) and (c) favored defendant, and that factors (h) and (k) favored
plaintiff. The trial court, in its opinion upholding the referee’s findings and conclusions,
discussed some of the evidence presented at the de novo hearing and how it related to specific
best interest factors to support its holding.
Although plaintiff argues that a majority of the best interest factors should have been
weighed in her favor, it is unclear from her brief exactly which factors she believes should have
been so weighed. We are also unable to ascertain plaintiff’s precise argument concerning why
the referee and the trial court’s findings were against the great weight of the evidence. Rather
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than precisely stating her argument, supporting the argument with facts, and stating with
specificity why we should adopt her position, plaintiff’s argument is little more than a statement
of her position and a regurgitation of the facts. It is not the function of this Court to unravel and
elaborate a party’s argument: “The appellant himself must first adequately prime the pump; only
then does the appellate well begin to flow.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d
388 (1959).
Affirmed.
/s/ Henry William Saad
/s/ Peter D. O’Connell
/s/ Brian K. Zahra
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