NICOLE BUCHAN V RANDON BUCHAN
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STATE OF MICHIGAN
COURT OF APPEALS
NICOLE BUCHAN,
UNPUBLISHED
November 5, 2009
Plaintiff-Appellee,
v
No. 290066
Livingston Circuit Court
LC No. 07-039213-DM
RANDON BUCHAN,
Defendant-Appellant.
Before: Jansen, P.J., and Fort Hood and Gleicher, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s order granting primary physical
custody of the minor children to plaintiff. We affirm.
After plaintiff and defendant separated, defendant left the marital home, and the couple’s
two minor children remained with plaintiff. The couple filed a complaint for divorce without
representation by counsel and opted out of involving the friend of the court. A judgment of
divorce was submitted to the court for signature that proposed joint custody of the children with
plaintiff having primary physical custody. This judgment was ultimately not entered. Plaintiff
began attending classes to complete a bachelor’s degree in nursing and also taught classes at a
local community college. Because of her work and school schedule, plaintiff asked defendant to
take physical custody of the children. During the 2007-2008 school year, the children resided
with defendant. In the winter of 2008, plaintiff learned that defendant had retained counsel and
intended on requesting permanent physical custody of the children. Consequently, she stopped
attending school and teaching and retained her own counsel.
In lieu of proceeding before the friend of the court, the parties stipulated to an evaluation
by psychologist, Dr. Charlene Kushler, and the result of the evaluation would determine custody.
The initial evaluation was based on separate interviews with the parties and the children. In the
interview, defendant alleged that plaintiff smoked so much marijuana on Christmas that she slept
for most of the day and that plaintiff associated with her brother and mother who were both
“drug addicts.” Defendant also reported that he suffered verbal and physical abuse from
plaintiff. Dr. Kushler concluded that there was no reason to change the custody arrangement
with defendant having physical custody and recommended that the parties submit to a hair
analysis to determine if there were substance abuse problems.
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The parties agreed to allow Dr. Kushler to conduct a more thorough investigation that
included an evaluation of the best interests of the children. Following this investigation, Dr.
Kushler concluded that the parties share legal and physical custody, but recommended that
plaintiff have primary physical custody. Despite the prior agreement that allowed Dr. Kushler to
resolve the custody dispute, defendant protested the findings and decision.1 Therefore, the
parties requested a bench trial to resolve the issue of custody only.2
Plaintiff testified that she had an associate’s degree in nursing, was pursuing a bachelor’s
degree in nursing, and was teaching a class part-time when she allowed the children to go live
with defendant in September 2007. The completion of a bachelor’s degree would have increased
plaintiff’s earning potential and allowed her to seek a management position. However, in
January 2008, plaintiff learned that defendant had retained an attorney to seek permanent
physical custody of the children instead of allowing them to return to her care in June 2008.
Upon learning of defendant’s plan, plaintiff stopped attending school and teaching in order to
devote more time to the children.
Plaintiff acknowledged that she agreed to allow Dr. Kushler to decide the issue of
custody. After Dr. Kushler rendered an opinion in favor of defendant, plaintiff requested the
opportunity to meet with the doctor to address the best interest factors to determine the custody
placement. Plaintiff knew of the earlier adverse decision, but wanted to clear up the
discrepancies from the initial assessment. She testified that, contrary to defendant’s
representations to the doctor, he did not pay child support to her. Rather, defendant’s bills were
paid from plaintiff’s checking account. Therefore, defendant gave her a check for his truck
payment, his cell phone payment, a loan payment, and the house payment. Additionally,
plaintiff denied having an alcohol or drug problem. Because of her employment, she passed a
drug test, and inappropriate behavior or substance abuse would adversely affect plaintiff’s
license. Plaintiff volunteered to take a drug test knowing that a positive result could cause her to
lose her license.
Plaintiff testified that she resided with her boyfriend, a Lansing firefighter. In the home
shared by the couple, each child had their own room. Plaintiff testified that she was affectionate
with her children. She was predominantly responsible for the children’s medical and dental
appointments. In fact, plaintiff was instrumental in having her son diagnosed with an infection
in his bone, a condition that was not diagnosed while the child was in defendant’s care. Plaintiff
testified that she was involved in her children’s activities and made defendant aware of
upcoming events and appointments. However, defendant failed to timely notify plaintiff of a
1
On June 26, 2008, the parties stipulated to having Dr. Kushler conduct a full custody and
parenting time investigation. The stipulation provided that “the results of Dr. Kushler[’s
investigation] should determine custody in this case.”
2
Defendant asserted that plaintiff provided inaccurate information to Dr. Kushler, and the
inaccuracies caused Dr. Kushler to change the initial custody recommendation. However, on
October 16, 2008, the parties stipulated to the admission of Dr. Kushler’s report regarding the
custody evaluation and waived her presence at the custody trial.
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school play and their daughter’s graduation. When the couple’s daughter began to experience
problems in school as a result of the separation, plaintiff took her to weekly counseling sessions.
Plaintiff testified that she was willing to foster the relationship between the children and
defendant. However, she testified that defendant was talking to their daughter about the divorce
case, which included sending texts to the girl at midnight.
Plaintiff testified that she currently worked six to eight shifts per month and scheduled
twelve-hour shifts on the weekends when defendant had visitation. Plaintiff acknowledged that
her brother lived with her and helped with the children, but testified that his drug problem was
resolved before he lived with her. She denied introducing the children to various boyfriends and
that she contemplated moving to another state to follow one of her paramours. In addition to
plaintiff’s testimony, Justin Conklin testified that plaintiff and her children lived in his home, and
the couple planned to marry after the divorce was finalized. He testified that plaintiff was a good
mother and that he had a good relationship with her children. Plaintiff’s father testified that
plaintiff was a good mother who did not scream and yell profanities at the children. He also
opined that plaintiff had never been in trouble and did not have a drug or alcohol problem.
Defendant lived with Roann Andrew and her two teenage children. Andrew testified that
defendant was a good father who was very involved with his children’s activities. However,
when Andrew observed plaintiff at a school function she was seen “texting” the entire time.
Because of their work schedules, Andrew would be able to watch the minor children when
defendant was unavailable, and they would not be placed in daycare.
Defendant testified that he was from a broken home and was bound and determined to
keep his family together. When his marriage failed, defendant left the home, but spent many
evenings attending to the children while plaintiff went to school or out to bars with friends. He
testified that he showered his children with affection, unlike plaintiff, and was especially close to
his daughter. Defendant acknowledged that he did discuss the divorce case with his daughter,
but did so in response to her questions. He opined that the children should be placed with him
because they lived in a loving environment surrounding by family and friends in the area.
Defendant had little praise for plaintiff or her parenting skills.3
The trial court concluded that an established custodial environment existed with both
parents, but concluded that plaintiff would have primary physical custody of the children.
Although the psychologist recommended that defendant received three weekends of visitation
each month, the trial court only awarded two weekends per month and two weekday visits.
3
Defendant also presented the testimony of Dana Saunders, a longtime friend of plaintiff.
Saunders testified that plaintiff was harsh and demeaning to the children. However, Saunders
admitted that while she was still married, she began a relationship with a man on parole for
criminal sexual conduct and kidnapping and exposed the man to her children. Additionally,
despite the harsh criticism of plaintiff as a parent, Saunders allowed her child to spend time with
plaintiff. Accordingly, the trial court disregarded this testimony as incredible.
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Defendant first alleges that the trial court reversibly erred in concluding that an
established custodial environment existed with both parties when the children had been placed in
the sole care of defendant for the past school year. We disagree.
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue. [MCL 722.28.]
A trial court’s factual finding regarding the existence of an established custodial environment
and the facts regarding the best interests of a child must be affirmed unless the evidence clearly
preponderates in the opposite direction. Berger v Berger, 277 Mich App 700, 705; 747 NW2d
336 (2008). The trial court’s discretionary rulings, such as to whom custody is awarded, are
reviewed for an abuse of discretion. Id. The trial court’s custody decision is given the utmost
level of deference. Id. at 705-706. Questions of law are reviewed for clear legal error and occur
when a trial court incorrectly chooses, interprets, or applies the law. Id. at 706. When reviewing
the trial court’s findings, we defer to the trial court’s assessment of the credibility of the
witnesses. Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006).
The determination regarding the existence of an established custodial environment
presents a question of fact that must be affirmed unless the trial court’s finding is against the
great weight of the evidence. Berger, supra at 706. Stated otherwise, the decision must be
affirmed unless the evidence clearly preponderates in the opposite direction. Sinicropi, supra.
Upon finding an established custodial environment, custody will not be changed unless clear and
convincing evidence is presented. Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d
847 (2003); MCL 722.27(1)(c). The evaluation of the custodial relationship is designed to
minimize unwarranted and disruptive changes in custody except in the most compelling cases
and to provide a stable environment for the children. Foskett v Foskett, 247 Mich App 1, 6; 634
NW2d 363 (2001); Vodvarka, supra at 511. A custodial environment is established where, over
an appreciable time, the child naturally looks to the custodian for guidance, discipline, the
necessities of life, and parental comfort. MCL 722.27(1)(c). Other considerations include the
age of the child, the physical environment, and the permanency of the relationship between the
custodian and the child. Vodvarka, supra. An established custodial environment can exist with
both parents. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000); Duperon v Duperon,
175 Mich App 77, 80; 437 NW2d 318 (1989).
Defendant contends that the trial court reversibly erred in concluding that a custodial
environment existed with both parents. We disagree. In Theroux v Doerr, 137 Mich App 147,
148-149; 357 NW2d 327 (1984), the plaintiff was given physical custody of the minor children
in a judgment of divorce entered in 1978. In 1982, the plaintiff was accepted into a nine-month
master’s degree program out of state. She petitioned for removal of the children from Michigan
for this nine-month period, but defendant objected to the removal. The parties stipulated to
transfer physical custody to defendant for the nine-month period. However, after plaintiff
returned from the program, defendant moved for continuation of custody. Although the trial
court found that the parties were equal in most factors, custody was modified to continue with
defendant and his new wife. This Court reversed:
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This Court has previously given effect to agreements entered into by the
parents which temporarily limit the period of one parent’s custody. In doing so
we have acknowledged the general policy which seeks to maintain continuity to
protect the best interests of the child. Nevertheless, because of our desire to
encourage a mother to relinquish custody if she feels unable to provide for her
charges, we have excepted from this general policy the practice whereby a parent
temporarily and voluntarily relinquishes custody to protect the children’s best
interests. We encourage such a practice by returning custody to that parent;
otherwise a mother would be reluctant to relinquish custody if she knew that, once
it passed to the father, it could not be regained. In reinforcing this practice, we
will reverse a trial court which, because of its desire to maintain continuity,
continues custody with the parent who was the beneficiary of a temporary
arrangement. … We give effect to the stipulation entered into by the parties as we
desire to encourage the practice plaintiff utilized of voluntarily and temporarily
relinquishing custody of her children to protect their best interests. [Theroux,
supra at 149-151 (citations omitted).]
Based on Theroux, the trial court did not err in concluding that an established custodial
environment existed with both parents. Despite the fact that the most recent period of physical
custody was with defendant, plaintiff voluntarily relinquished custody to defendant in an attempt
to improve her circumstances for herself and her children. An additional college degree and
part-time employment would have enabled plaintiff to increase her earning potential. However,
upon learning that defendant had retained counsel to eliminate plaintiff as the primary physical
custodian, she stopped pursuing her bachelor’s degree, stopped teaching, and retained counsel.
Under the circumstances, defendant’s contention is without merit. Theroux, supra.
Defendant next alleges that the trial court erred in concluding that there was an
established custodial environment with both parties, but then altered the environment by
awarding plaintiff sole physical custody and limited defendant’s visitation as a sanction. We
disagree. Review of the record reveals that a signed order regarding child custody was never
entered. Consequently, the child custody arrangement was established based on the couple’s
agreement. The couple initially agreed that plaintiff would have primary physical custody, but
agreed to transfer physical custody to defendant for the 2007-2008 school year. When a
disagreement arose over child custody when the school year ended, the parties submitted the
issue of child custody to a psychologist and agreed to be bound by the psychologist’s evaluation.
The parties agreed to alternate weeks during the summer. When the evaluation was delayed and
defendant did not agree to be bound by the evaluation, the trial court temporarily awarded
primary physical custody to plaintiff because the 2008-2009 school year was beginning.
Unfortunately, the parties could no longer alternate weekly custody because of the distance
between their homes. Consequently, defendant’s contention that the trial court altered the “joint”
custody decision by awarding primary physical custody to plaintiff is without merit. Under the
factual circumstances presented, primary physical custody had to be placed with one party
because the children could not alternate weekly attendance at different schools. The trial court’s
factual findings were not clearly erroneous. Berger, supra.
We also reject defendant’s contention that the trial court sanctioned defendant by
removing one of the weekend visitations recommended by the psychologist. Review of the
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record reveals that defendant was granted two evenings during the week to spend with his
children. However, he did not timely appear for those visits despite the fact that his workday
ended at 2:00 p.m. Defendant also sent texts to his daughter at midnight about the case.
Additionally, in the psychological evaluation, it was noted that defendant admitted leaving his
daughter alone despite her young age. The trial court recommended that defendant receive
counseling to foster the relationship between his children and plaintiff. Based on the record, the
trial court’s visitation schedule was not designed to sanction defendant, but rather reflected that
adverse consequences were occurring as a result of defendant’s interaction with his daughter. In
determining visitation rights, the trial court must consider the best interests of the children. Deal
v Deal, 197 Mich App 739, 742; 496 NW2d 403 (1993). On this record, we cannot conclude that
the trial court abused its discretion by altering the visitation schedule. Id.
Affirmed.
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
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