BRIAN A GERMAN V MICHELLE M GERMAN
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STATE OF MICHIGAN
COURT OF APPEALS
BRIAN A. GERMAN,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellant,
v
No. 292244
Oceana Circuit Court
LC No. 07-006232-DM
MICHELLE M. GERMAN,
Defendant-Appellee.
Before: Servitto, P.J., and Bandstra and Markey, JJ.
PER CURIAM.
In this child custody action, plaintiff appeals an order of the trial court denying his
petition to change custody. The court ordered that the parties continue to share joint legal and
joint physical custody of the parties’ two minor children, Jaymes and Scott German. We affirm.
Plaintiff first argues that the trial court erred in finding that the children had an
established custodial environment with defendant. We disagree.
In a child custody case, findings of fact, including findings regarding the existence of an
established custodial environment, should be affirmed unless they are against the great weight of
the evidence. MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 879; 526 NW2d 889 (1994).
“Under the great weight of the evidence standard, this Court defers to the trial court’s findings of
fact unless the trial court’s findings clearly preponderate in the opposite direction.” Corporan v
Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009) (citation and internal quotation marks
omitted).
Whether an established custodial environment exists is a question of fact that the trial
court must address before it turns to the best interest factors. Brausch v Brausch, 283 Mich App
339, 356 n 7; 770 NW2d 77 (2009). A custodial environment 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. [MCL 722.27(1)(c).]
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The trial court, as is required (see, Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231
(2000)), made a specific finding that a custodial environment existed with both parties:
It is the factual finding of this Court that since the entry of the Judgment
of Divorce on September 27, 2007, subject to the protective services intervention,
the parties have exercised a one week on / one week off parenting time rotation.
When Plaintiff exercised parenting time, he had the responsibility for providing
food, clothing, shelter, education, discipline and attending to the medical needs of
the children. When Defendant exercised parenting time, she had the same
responsibility for providing food, clothing, shelter, education, discipline and
attending to the medical needs of the children. Given the young ages of the
children, 5 and 7, the children naturally looked equally to both their father and
their mother for guidance, discipline, and the necessities of life.
Because a custodial environment does exist, the burden of proof required
for the Court to change custody is by a clear and convincing standard so as to
minimize unwarranted and disruptive changes of custody.
According to the record, from the divorce on September 26, 2007 until December 19,
2007, the children were with each parent for alternating weeks. From December 19, 2007 until
March 7, 2008, they were placed with defendant’s mother, Cheryl Hilliard. During this time,
plaintiff apparently only had custody of the children every other weekend. On March 7, 2008,
defendant resumed custody of the children but it is not clear whether they moved back in with
defendant at that time or remained with her parents. The regular alternating week parenting time
arrangement did not get reinstated until July 2008. In October 2008, defendant moved from
Shelby to Walkerville, about 25 miles away. As of the February trial date, the children stayed at
defendant’s parents home during the weekdays when she was exercising her parenting time
because it was easier to get to their school in Shelby from the grandparents house, but defendant
also spent time at her parents’ home during her parenting time weeks.
Although there may appear to be some instability in terms of the children’s environment,
the children are used to living with the parties equally and are also used to spending significant
amounts of time with their maternal grandparents. Even while the children were placed with
their grandparents during protective services proceedings, they were able to see each parent,
every other weekend. There were no repeated changes in the joint physical custody arrangement,
or periods where the children spent more time with one parent or the other. Rather, the children
stayed with their grandparents for one period lasting about three months. In October of 2008,
defendant did move to Walkerville, but defendant has made efforts to maintain stability for Scott
and Jaymes by staying with her parents so that the children are close to their school. The
evidence does not clearly preponderate toward a lack of custodial environment with both parties.
Plaintiff next argues that the trial court did not properly weigh the statutory best interest
factors found 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:
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(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.
(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.
One of plaintiff’s main arguments on appeal is that the court made no credibility
determinations, but rather blindly accepted the testimony presented at trial. However, the fact
that the court made factual findings against plaintiff, based on the testimony provided, is not
evidence that the court abandoned its responsibility to consider and weigh the evidence. Indeed,
great deference must be given to the trial court's assessment of the weight of the evidence and
witness credibility (People v Shipley, 256 Mich App 367, 372-374; 662 NW2d 856 (2003)), and
this Court must make credibility choices in support of the verdict. People v Nowack, 462 Mich
392, 400; 614 NW2d 78 (2000).
Moreover, a judge’s findings and conclusions need not include consideration of every
piece of evidence entered and every argument raised by the parties. MacIntyre v MacIntyre
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(After Remand), 267 Mich App 449, 452; 705 NW2d 144 (2005). Nor must the court give each
factor equal weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).
Regarding factor (a), the trial court found that the present parenting time schedule allows
each parent equal time with both children, and that “[e]ach parent has been equally responsible
for preparing meals.” Plaintiff asserts an error in this conclusion, claiming that it is defendant’s
parents that provide such care when defendant exercises her parenting time. However, the
court’s findings also addressed the children’s bonds with the parties, including their ability to
continue to foster such a bond. The evidence of record does not clearly preponderate against the
court’s finding of equality on factor (a).
Plaintiff argues, in part, that because he wanted Scott to attend summer school, as
recommended by his teacher, and because defendant did not send him to summer school, he
should have prevailed on factor (b). However, the trial judge explicitly included these facts in
his opinion and recounted the disagreement over summer school between the parties. The judge
also considered other facts concerning providing love, affection, and guidance, to conclude that
neither party prevailed on this factor. Reviewing all of the evidence relevant to this factor, there
is no clear evidence that preponderates in plaintiff’s favor on factor (b).
With respect to factor (b), plaintiff also argues that the trial judge mischaracterized an
altercation between defendant’s boyfriend and a former neighbor as a “scuffle.” There was
testimony that there was a fight, and using “scuffle” as a label is not improper in this context.
Indeed, it was a word used by the neighbor in his testimony.
As for factor (c), the trial court found that defendant marginally prevailed. The judge
acknowledged that “[b]oth parties struggle economically,” but noted that plaintiff has a
substantial history of not being able to maintain steady employment. These conclusions were
certainly supported by the record.
Regarding factor (d), plaintiff argues that he should have overwhelmingly prevailed
rather than “marginally prevailed” as the trial court found. Either way, this factor was found to
weigh in plaintiff’s favor, so what plaintiff hopes to accomplish by making an argument on this
factor is unclear. Moreover, the court’s specific finding on this factor is supported by the
evidence, giving due consideration to plaintiff’s history of unstable housing.
Plaintiff also asserts that factor (e), which the trial court found marginally favored
defendant, should have instead favored him. In weighing this factor, the trial court considered
that plaintiff had moved several times in the year and a half since the parties’ divorce, and had
still not maintained a steady income. The trial court also noted that defendant had moved only
once and is now better able to provide for the family. The evidence thus supported the trial
court’s finding.
Plaintiff raises no real argument with respect to the trial court’s findings on factors (f),
(g), (h), (i), (j), and (k) (aside from credibility issues in some instances), which, again, we view
in favor of the verdict. People v Nowack, supra. Plaintiff does assert that the trial court did not
give the testimony and opinions provided by the children’s counselor due weight. The trial court
did consider that testimony, but expressed some concern about the counselor’s understanding of
the relevant background. The trial court also felt the counselor was unduly biased in favor of
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plaintiff. Given the trial court’s history with the parties and these proceedings, and deferring to
the trial court’s superior position to assess the testimony, we will not second-guess the trial
court’s evaluation of this evidence.
In sum, the evidence does not clearly preponderate in favor of plaintiff on the challenged
factors. Because the ultimate disposition was not against the great weight of the evidence, the
trial court did not abuse its discretion in continuing the existing custody arrangement.
Lastly, we reject plaintiff’s argument that the trial court erred in failing to keep a record
of the judge’s in camera interview with the children. In the instant case, the trial court properly
conducted interviews, and kept the preferences expressed by the children to himself. The trial
court need not necessarily keep a record of such interviews. Molloy v Molloy, 466 Mich 852;
643 NW2d 574 (2002).
Affirmed.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Jane E. Markey
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