ROBERT GREER V CHARMAINE GREER
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT GREER,
UNPUBLISHED
April 20, 2010
Plaintiff-Appellant,
v
No. 293817
Wayne Circuit Court
Family Division
LC No. 06-605226-DM
CHARMAINE GREER,
Defendant-Appellee.
Before: M.J. KELLY, P.J., and TALBOT and WILDER, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting defendant’s motion for a modification of
custody in this post-judgment action. We affirm.
Plaintiff and defendant are the parents of two minor children who are the subjects of this
custody dispute.1 The parties were married on June 16, 2001, and were granted a consent
judgment of divorce on April 4, 2007. The minor children lived with both parties, until they
separated in 2005. The children resided with defendant until July 2006 when, during the
pendency of the divorce proceedings, defendant was arrested and charged with domestic
violence, assault and robbery pertaining to an incident involving plaintiff and his girlfriend.
Following this incident, plaintiff was granted temporary physical custody of the minor children.
In anticipation of defendant’s incarceration as a result of this incident, the consent judgment of
divorce awarded plaintiff temporary legal custody of the minor children with defendant to have
parenting time. In accordance with the consent judgment, defendant was instructed to petition
the trial court for the reinstatement of joint legal custody and additional parenting time following
the conclusion of her jail sentence and on demonstration of her compliance with any probation
requirements. Although defendant was sentenced on January 16, 2007, to serve one year in jail
with work release, she was required to serve only nine days in jail and was released on a tether.
Reportedly, defendant has complied with her probation requirements.
1
Both parties also have minor children from previous relationships.
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Despite the fact that defendant did not remain incarcerated for the length of time
anticipated and was available, plaintiff denied her parenting time with the minor children.
Although the parties entered into a consent order on June 28, 2007, detailing defendant’s
parenting time with the minor children, plaintiff was later found in contempt by the trial court for
his failure to cooperate and ongoing violation of the parenting time schedule. Defendant
subsequently filed a motion for change of custody, seeking to obtain joint legal and physical
custody of the minor children. On March 19, 2008, the trial court determined that proper cause
and a sufficient change in circumstances existed to conduct an evidentiary hearing on the issue of
custody. In essence, the trial court determined that defendant’s compliance with the terms of her
probation in conjunction with the “ongoing conflict between the parents . . . and the apparent
interference . . . regarding mother exercising any parenting time with the children, and the impact
that such conflict was having on the minor children” necessitated a review of the existing
custody arrangement.
Finding the existence of an established custodial environment with plaintiff, the trial
court properly applied a clear and convincing evidence standard in determining whether an
alteration in custody was in the best interests of the children. In evaluating the best interest
factors, the trial court found that the parties were equal on seven of the 12 factors.2 Plaintiff was
favored on factors (d) [time child has lived in a stable environment] and (f) [moral fitness of the
parties]. Defendant was also favored on two factors: (c) [capacity to provide for material needs
of child] and (j) [willingness to cooperate and foster relationship]. Although the trial court met,
in camera, with both minor children, only the older child was determined to be of sufficient age
to express a reasonable preference.3 Following its analysis of the best interest factors, the trial
court concluded that custody would be modified so that plaintiff and defendant would have joint
legal and physical custody of the minor children and a parenting schedule was delineated. This
appeal ensued.
Child custody disputes are governed by MCL 722.21 et seq. “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; Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994).
In Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000), this Court delineated the
three standards of review that are applicable in child custody proceedings:
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
2
MCL 722.23(a), (b), (e), (g), (h), (k), and (l).
3
The trial court indicated that it considered the preference of the minor child but did not disclose
its discussions with the children, pursuant to MCL 722.23(i).
-2-
law are reviewed for clear legal error when it incorrectly chooses, interprets, or
applies the law. [(Citations omitted).]
Evidentiary issues are also reviewed for an abuse of discretion. Reed v Reed, 265 Mich App 131,
160; 693 NW2d 825 (2005).
On appeal, plaintiff first takes issue with the trial court’s decision to preclude evidence
pertaining to defendant’s criminal history. Specifically, plaintiff contends the trial court erred
when it purportedly refused to consider her 2006 arrest and incidents that occurred in excess of
ten years before entry of the judgment of divorce, before the parties were married or the children
were born. Contrary to plaintiff’s contentions, it is obvious that the trial court did consider
defendant’s most recent incident in the evaluation of the best interest factors as it is repeatedly
referenced in the trial court’s ruling. Part of the confusion may stem from a misunderstanding
regarding what may be considered in evaluating the best interest factors when compared to
evidence admissible in the determination of whether a change of circumstances has occurred.
Specifically:
[I]n order to establish a “change of circumstances,” a movant must prove that,
since the entry of the last custody order, the conditions surrounding custody of the
child, which have or could have a significant effect on the child’s well-being,
have materially changed. [Brausch v Brasuch, 283 Mich App 339, 355-356; 770
NW2d 77 (2009), citing Vodvarka v Grasmeyer, 259 Mich App 499, 512-514;
675 NW2d 847 (2003) (emphasis added).]
Hence, in the circumstances of this case, the trial court would properly exclude evidence of the
2006 criminal incident in determining whether a change of circumstances existed, as this did not
occur subsequent to the custody order contained in the judgment of divorce. With regard to the
incidents alleged to have occurred more than ten years previously they are of questionable
relevance having taken place before the marriage and the birth of the minor children, and, as
recognized by the trial court, are clearly precluded in accordance with MRE 609(c) from
consideration either with regard to the demonstration of a change of circumstances and in
evaluating the best interest factors. As such, we find the trial court did not abuse its discretion in
limiting the admission of such evidence.
Next, plaintiff contends that the trial court’s findings on the best interest factors
comprising MCL 722.23(b) [capacity for love and guidance], (c) [capacity to provide child with
material needs], (f) [moral fitness], and (h) [home, school and community record] were against
the great weight of the evidence. Inexplicably, plaintiff contests the trial court’s finding on
factor (f), even though the trial court found that plaintiff was favored on this factor. It appears to
this Court that plaintiff is confusing two separate concepts as plaintiff cannot seriously be
contesting the trial court’s favorable determination on factor (f). In effect, plaintiff confuses
great weight of the evidence, which determines whether a party is favored or deemed equivalent
on a particular factor with the weight attributable by a trial court in the evaluation of the
importance of certain factors in the overall determination of a child’s best interests. Specifically,
plaintiff seems to misconstrue the well-recognized precept that “the statutory best interest factors
need not be given equal weight.” McCain v McCain, 229 Mich App 123, 131; 580 NW2d 485
(1998) (emphasis in original). And further, that “[n]either the circuit court nor this Court is
required to ‘mathematically assess equal weight to each of the statutory factors’ . . . . Nor does a
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finding regarding one factor necessarily countervail the findings regarding the other factors.”
Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009) (citations omitted). In other
words, the degree to which an individual is favored on a particular factor is irrelevant in the
broader scheme of how that factor is weighed when it is evaluated in conjunction with the
remaining best interest factors to be considered.
Of the remaining three factors challenged, the parties were deemed equivalent on factors
(b) and (h), with defendant favored on factor (c). Factor (b) pertains to “[t]he 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.” MCL 722.23(b). In
finding the parties equal on this factor, the trial court noted that plaintiff and defendant report
having a religious membership, but neither routinely attends religious services. Both parties
were noted to “have had contact[] with law enforcement,” but that defendant “does have a
criminal record.” Although Child Protective Services had contact with this family, no
allegations of abuse of neglect had been substantiated with regard to either parent. The trial
court noted that plaintiff admitted to the use of physical discipline. The trial court’s ruling on
this factor is not against the great weight of the evidence. Before the criminal incident in 2006,
plaintiff and defendant were both involved in the raising and care of these children. Notably,
plaintiff does not contest the trial court’s finding of equivalence on factor (a) indicating both
parents regarding the existence of “love, affection, and other emotional ties” between the parties
and their children. As such, it appears that plaintiff’s contention is with the trial court’s
determination that defendant is equal to plaintiff in the ability to provide the children with
guidance. Impliedly, plaintiff contests defendant’s ability to provide guidance to the children
because her criminal conviction does not make her a role model. However, as noted by the trial
court, neither party is without their faults or failings having made questionable behavioral
choices under certain circumstances. This does not however necessitate a leap in logic that either
party is incapable of learning from their mistakes and providing guidance to their children to
avoid engaging in similar behaviors. Plaintiff further alleges that defendant fails to discipline the
minor children when they are in her care and, instead, phones defendant for assistance or returns
the children to his custody. Contrary to plaintiff’s argument, this does not necessarily indicate an
inability to provide guidance but rather recognition by defendant of a need for consistency and
continuity in discipline. We would also note the trial court’s factual finding that plaintiff had
actively worked to undermine defendant’s relationship with the children and, thus, the need for
defendant to effectively re-establish herself as an authority figure with the minor children. As
such, we cannot find the trial court’s determination of equivalence on this factor to be against the
great weight of the evidence.
Plaintiff also contests the trial court’s determination favoring defendant on factor (c),
“[t]he capacity and disposition of the parties involved to provide the child with food, clothing,
medical care or other remedial care . . . and other material needs.” MCL 722.23(c). In favoring
defendant on this factor, the trial court observed her “steady full-time employment” and
plaintiff’s election to work on a part-time basis. Both parties were recognized as providing
insurance for the minor children though their respective employments. The trial court’s findings
are consistent with the evidence that defendant had a history of full-time employment, with the
same employer compared to plaintiff who elected to work a reduced schedule and was reliant, to
some degree, on his receipt of child support and his fiancée to provide for the minor children.
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Hence, the trial court’s determination on this factor was not against the great weight of the
evidence.
Factor (h) encompasses “[t]he home, school, and community record of the child.” In
finding the parties equal, the trial court focused on the evidence showing that both children had
good academic records and were involved in extracurricular activities and that there were no
“significant concerns regarding the children’s behavior at this time.” Plaintiff contends he
should have been favored on this factor as he attributes the children’s success in school solely to
his efforts and involvement. While not specifically noted by the trial court, evidence existed to
demonstrate that the children did not demonstrate any particular difficulties before the divorce
when they resided with either both parents or were in defendant’s care. In addition, there was
testimony that plaintiff actively sought to preclude defendant from involvement in the children’s
education. Once defendant was provided the opportunity to become re-engaged, there have been
no significant problems or concerns with their school behavior or academic performance. Nor
was there any evidence that defendant sought to interfere or, in any manner, disrupt, the
children’s attendance at school or involvement in extracurricular activities. Although plaintiff
suggests that the trial court erred in failing to acknowledge certain evidence pertaining to his
involvement in the schools and its positive impact on the children in evaluating this factor, we
note that the court was not required to “comment upon every matter in evidence or declare
acceptance or rejection of every proposition argued.” Baker v Baker, 411 Mich 567, 583; 309
NW2d 532 (1981). Consequently, we determine that the evidence adequately supported the trial
court's findings on this factor.
Plaintiff further contends that the trial court abused its discretion in finding that clear and
convincing evidence existed to modify custody. Specifically, MCL 722.28 states:
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.
“An abuse of discretion occurs when the decision results in an outcome falling outside the
principled range of outcomes.” Radeljak v DaimlerChrysler Corp, 475 Mich 598, 603; 719
NW2d 40 (2006) (citations omitted). In addition, MCL 722.27(c) provides, in pertinent part:
The court shall not modify or amend its previous judgments or orders or issue a
new order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of the
child. 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.
Having determined that the trial court’s factual findings were not against the great weight
of the evidence we also find that the trial court did not abuse its discretion in modifying custody.
In this instance, the trial court found the parties equal on seven of the 12 best interest factors.
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Each party was favored on two of the factors and the oldest child’s reasonable preference was
taken into consideration by the trial court. The trial court found the existence of additional
siblings in both homes to be a relevant factor in determining custody, indicating that the minor
children “should be able to enjoy regular sibling time with their step-sibling.” While this factor4
did not favor any party, it was deemed “a consideration for this Court in regards to parenting
time.”
Clearly, of significant importance to the trial court in weighing the best interests of the
minor children was factor (j), which comprises “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 party.” Reviewing the history of these parties, the trial court noted that defendant had
provided “liberal access” of the minor children to plaintiff when they were originally in her
custody. However, citing the history of interaction following the award of physical custody to
plaintiff and the necessity of a show cause hearing resulting in finding plaintiff in contempt of
court for repeated violation of parenting time orders, the trial court emphasized that plaintiff was
found to have “demonstrated a clear pattern of denying parenting time . . . despite the negative
impact that this has on the children.” In addition, the trial court observed that plaintiff had
“continued to interfere” with defendant’s parenting time with the minor children through
scheduling their participation in various activities and camps during defendant’s “scheduled
weekends” without consultation or agreement beforehand. The trial court also determined that
plaintiff was unwilling to promote the relationship between defendant and the minor children by
systematically denying her access to educational and health information and appointments or
activities, precluding her participation in meaningful aspects of the children’s lives. As such, the
trial court ruled that this factor strongly favored defendant and would be given “significant
weight” in the overall balancing of the best interest factors in evaluating the modification of
custody.
A review of the trial court's opinion provides no indication that the decision to award
joint physical and legal custody would constitute an abuse of discretion. In delineating its
reasoning on each of the best interest factors, the trial court provided facts and evidence
pertaining to the history of the parties and from the evidentiary hearing, which served as a
credible basis for the trial court’s ultimate determination. While plaintiff may not agree with the
trial court’s findings, it is apparent that the decision to award joint custody was based on clear
and convincing evidence demonstrating that the change in custody would facilitate an ongoing
relationship between the children and both parents and was in the best interests of the minor
children. Therefore, the trial court’s ruling did not constitute an abuse of discretion.
Plaintiff further takes issue with the trial court’s purported failure to consider the inability
of the parties to cooperate in granting joint legal custody. An award of joint custody is, in part,
determined by MCL 722.26a. Specifically, after having decided whether joint custody is in a
child's best interest, a trial court is required to consider “[w]hether the parents will be able to
cooperate and generally agree concerning important decisions affecting the welfare of the child.”
4
MCL 722.23(l).
-6-
MCL 722.26a(1)(b). Contrary to plaintiff’s assertions, the trial court’s ruling demonstrated that
it took into consideration the historical problems involving these parties in communicating and
cooperating with one another. This Court has previously indicated in Fisher v Fisher, 118 Mich
App 227, 232-233; 324 NW2d 582 (1982) (citations omitted):
In order for joint custody to work, parents must be able to agree with each other
on basic issues in child rearing-including health care, religion, education, day to
day decision-making and discipline-and they must be willing to cooperate with
each other in joint decision-making. If two equally capable parents whose
marriage relationship has irreconcilably broken down are unable to cooperate and
to agree generally concerning important decisions affecting the welfare of their
children, the court has no alternative but to determine which parent shall have sole
custody of the children. The establishment of the right to custody in one parent
does not constitute a determination of the unfitness of the noncustodial parent but
is rather the result of the court's considered evaluation of several diverse factors
relevant to the best interests of the children.
In this instance, the trial court specifically found that defendant was cooperative with regard to
sharing time with the minor children. Clearly, the trial court determined that to overcome
plaintiff’s reticence and active undermining of defendant, it was necessary to establish a joint
custody arrangement to afford defendant an equal say in major decisions pertaining to the lives
of the minor children and assure her involvement.
Further, the ability of the parties to cooperate does not comprise the sole factor guiding a
trial court's determination regarding the propriety of an award of joint custody. Nielsen v
Nielsen, 163 Mich App 430, 434; 415 NW2d 6 (1987). In awarding joint custody, the act of
cooperation focuses on the ability of the parties to “agree on basic child-rearing issues.” Id.
While there obviously exists a great deal of residual animosity between the parties and reluctance
on plaintiff’s part to include defendant in the children’s lives, there was no evidence presented to
indicate that the parties had demonstrated any major disagreements regarding religious,
educational or medical decisions for the minor children. In this instance, the trial court very
clearly articulated its concerns and observations regarding the respective abilities of the parties to
cooperate and instructed them accordingly.
Finally, plaintiff contends that the parenting time schedule delineated by the trial court
was not in the best interests of the children. Defendant has also voiced concerns regarding the
schedule, but has indicated a willingness to follow the trial court’s instruction. However, both
parties fail to recognize that the parenting time schedule delineated by the trial court was not set
in stone by the trial court indicating, “[t]he parties may also agree to any other parenting time not
set forth by this court.” As such, the development of a new and more efficacious schedule is
within the control of the parties and presents a perfect opportunity to demonstrate their
willingness to cooperate for the best interests of their children.
Affirmed.
/s/ Michael J. Kelly
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
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