KENNETH J STEVENS V MICHELLE WATTS
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH J. STEVENS,
UNPUBLISHED
November 17, 2009
Plaintiff-Appellee,
v
No. 287017
Wayne Circuit Court
Family Division
LC No. 05-531145-DC
MICHELLE BRADLEY WATTS,
Defendant-Appellant,
and
CLARENCE WATTS,
Defendant.
Before: Hoekstra, P.J., and Murray and M. J. Kelly, JJ.
PER CURIAM.
Defendant Michelle Bradley Watts1 appeals as of right the order granting plaintiff sole
physical custody of the parties’ daughter. Because we conclude that the trial court’s factual
findings on factors (f), (g), (i), and (l) were not clearly erroneous and that the trial court’s award
of sole physical custody of the parties’ daughter to plaintiff was not an abuse its discretion, we
affirm.
The trial court found that the parties’ daughter Kennedy had an established custodial
environment, as defined in MCL 722.27(1)(c), with defendant. If there exists an established
custodial environment, a party seeking a change of custody is required to show by clear and
convincing evidence that a change of custody is in the child’s best interest. MCL 722.27(1)(c);
Berger v Berger, 277 Mich App 700, 710; 747 NW2d 336 (2008). When making a
determination regarding a child’s best interest, a trial court is required to state its factual findings
1
Defendant Clarence Watts was not a party to the custody dispute at issue. All references in this
opinion to “defendant” are to Michelle Bradley Watts.
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and conclusions on each best interest factor listed in MCL 722.23. Rittershaus v Rittershaus,
273 Mich App 462, 475; 730 NW2d 262 (2007).
On appeal, defendant claims that the trial court clearly erred in finding that factors (f),
(g), and (l) favored plaintiff and in refusing to consider Kennedy’s preference under factor (i).2
We must affirm the trial court’s factual findings unless the findings are against the great weight
of the evidence. MCL 722.28; Berger, supra at 705. A finding of fact is against the great weight
of the evidence if the evidence clearly preponderates in the opposite direction. Berger, supra at
705. We review a trial court’s ultimate custody decision for an abuse of discretion. Id. “An
abuse of discretion exists when the trial court’s decision is so palpably and grossly violative of
fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of
passion or bias.” Id.
Factor (f) concerns “[t]he moral fitness of the parties involved.” MCL 722.23(f). The
trial court stated, “This factor favors [plaintiff], when it comes to court proceedings and
following court orders the court is very disappointed and the mother appears to be without
morals.” Defendant argues that there was no evidence to support this conclusion and claims that
the court’s conclusion was based on its “bias or intense dislike” of defendant.
In particular, defendant points to a colloquy during a sidebar conference in which the trial
court commented that it was “surprised” by defendant’s clothing. Defendant was wearing a
shawl over her head, and the court noted that defendant was transforming herself “into a bride or
a Virgin Mary.” The trial court took no action with respect to the shawl, concluding the
conference by stating, “Okay. Well actually we don’t allow hats in court except for religious. . . .
Let’s -- okay. . . . Back to the facts.” Contrary to defendant’s contention, the trial court’s
comment that defendant was transforming herself into “a Virgin Mary” did not evince a bias or
intense dislike of defendant. Rather, the court was taking note of an aspect of defendant’s
behavior that appeared to be out of the ordinary and unexplained. Further, the court did not
highlight defendant’s unusual dress when discussing the moral fitness of the parties.
“Factor f (moral fitness) . . . relates to a person’s fitness as a parent. To evaluate parental
fitness, courts must look to the parent-child relationship and the effect that the conduct at issue
will have on that relationship.” Fletcher v Fletcher, 447 Mich 871, 886-887; 526 NW2d 889
(1994) (emphasis in original). As the trial court noted throughout its opinion, there was evidence
that defendant violated numerous court orders, coached Kennedy into developing an antagonistic
attitude toward plaintiff, denigrated plaintiff in Kennedy’s presence, and listened to recordings of
conversations Kennedy had with plaintiff and a social services professional. Defendant’s
conduct, which appears to subjugate Kennedy’s best interest to defendant’s personal interest in
keeping Kennedy away from plaintiff, certainly speaks to a lack of moral fitness as a parent, with
possible serious impact upon the parent-child relationship. Fletcher, supra at 887. There is
evidence to support the trial court’s finding that factor (f) favored defendant, and no evidence
from which to conclude that trial court’s finding was merely a result of bias toward defendant.
2
The trial court found that factors (d) and (e) favored defendant and that neither party was
favored on factors (a), (b), (c), (h), and (k).
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Citing a report by the court-appointed evaluator, Dr. Robert E. Erard, defendant also
argues that the trial court ignored plaintiff’s own lack of morality including plaintiff’s “history of
excessive drinking, DUI arrest, history of venereal disease, and multiple live-in relationships.”
In his report, Dr. Erard noted that plaintiff had a history of excessive drinking in college, was
arrested for driving on a suspended license, and was in excellent health despite the existence of
venereal disease in the past. Nothing in the report indicated that plaintiff was engaged in any
present conduct that called into question his moral fitness to be a parent to Kennedy.
Factor (g) concerns “[t]he mental and physical health of the parties involved.” MCL
722.23(g). The trial court noted defendant’s use of recording devices, attire, and “affect and
conduct while court is on,” when concluding that it was “bothered by [defendant’s] mental
health.” Defendant argues that Dr. Erard’s report demonstrates that she does not have any
mental health issues.
Dr. Erard’s report noted that defendant was “inclined to view herself as an important
person who is entitled to special consideration in having her needs met. Her lack of humility and
tendency to put her own needs above those of other people are likely to lead to difficulties in her
relationships.” However, Dr. Erard also noted that “[s]he has a psychologically stable makeup
and is rarely disturbed or overwhelmed by stress or emotional overload.” Dr. Erard’s report was
based on a series of clinical assessments performed over a year before the evidentiary hearings.
Although Dr. Erard failed to uncover any clinical mental health issues suffered by
defendant, the trial court had the opportunity to observe defendant on a series of dates following
Dr. Erard’s report. It specifically referred to defendant’s disturbing behavior before it—e.g., her
fixation on recording conversations, her unusual dress, and her affect and conduct while in
court—in its findings for factor (g). The evidence does not clearly preponderate in the opposite
direction of the trial court’s finding.
Defendant also argues that the trial court’s finding that Kennedy had an established
custodial environment with her controverts the court’s finding regarding her mental health. We
are unable to discern what impact the established custodial environment finding should have on
findings with respect to factor (g), and defendant fails to make a coherent argument.
Factor (i) concerns “[t]he reasonable preference of the child, if the court considers the
child to be of sufficient age to express preference.” MCL 722.23(i). The trial court stated:
This factor will be considered in the court’s decision. But the court is unclear as
to whether or not [defendant] interfered with the child’s ability to be candid in
talking with the court. Because the court is aware that poor Kennedy is
responsible to tape record meetings with therapists, meetings with guardian ad
litem. And those Kennedy said that she wasn’t recording, I didn’t conduct a
search, and I’m not satisfied that Kennedy is able to have a conversation with an
adult, even Child Protective Services, her therapist, or a court-appointed guardian
ad litem without [defendant’s] interference and the requirement that the child
report back to mom what happened.
Defendant argues that the trial court erred when it “refus[ed] to consider” Kennedy’s
preference by “finding that Kennedy was either too young or immature to express her
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preference.” Defendant misapprehends the court’s statement. Although the trial court expressed
skepticism whether Kennedy’s preference was influenced by defendant, the court expressly
stated that it would consider Kennedy’s preference. There was no clear error in the trial court’s
findings regarding factor (i).
Factor (l) concerns “[a]ny other factor considered by the court to be relevant to a
particular child custody dispute.” MCL 722.23(l). The trial court stated, in part, that
“[defendant] is obsessed with audiotaping everything. And her obsession with audiotaping
affects . . . [factor (l)], . . . because there is a risk of harm to the child, requiring the child to
continually tape everything and report back to mom.” Defendant claims there was no credible
evidence that she was obsessed with recording conversations or that her recording of
conversations harmed Kennedy.
Defendant testified, “I record conversations. I love it. . . . I would definitely record . . .
ninety-eight percent of [plaintiff’s] conversations.” She owned three or four recorders. Kennedy
carried a recorder in her purse, and defendant listened to conversations recorded by Kennedy
between Kennedy and plaintiff and between Kennedy and the guardian ad litem. It is fair to
conclude that any propensity by Kennedy to record conversations is, at least, a direct result of
defendant’s encouragement and her willingness to listen to recorded conversations. The trial
court’s finding that defendant was obsessed with recording conversations and that this obsession
was harmful to Kennedy was not clearly erroneous.
In light of our conclusion that the trial court’s findings on factors (f), (g), (i), and (l) were
not clearly erroneous, there is no basis for us to conclude that the trial court abused its discretion
in awarding plaintiff sole physical custody of Kennedy. The trial court’s analysis of the best
interest factors revealed that defendant engaged in a variety of troubling behavior with respect to
Kennedy and that it would be difficult or impossible for plaintiff to maintain a positive
relationship with Kennedy if defendant maintained primary custody. Conversely, there is no
indication that plaintiff had sought or would seek to undermine Kennedy’s relationship with
defendant. Accordingly, we affirm the trial court’s order awarding plaintiff sole physical
custody of Kennedy.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
/s/ Michael J. Kelly
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