MARK T WEBER V TRACIE A WEBER
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STATE OF MICHIGAN
COURT OF APPEALS
MARK T. WEBER,
UNPUBLISHED
April 22, 2010
Plaintiff-Appellee,
v
No. 293002
Saginaw Circuit Court
Family Division
LC No. 05-055451-DM
TRACIE A. WEBER a/k/a TRACIE A.
LETHORN,
Defendant-Appellant.
Before: SAAD, P.J., and HOEKSTRA and MURRAY, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order denying her petition to change the
domicile of the parties’ minor son and granting plaintiff’s petition to change custody. Because
none of the trial court’s findings of fact were against the great weight of the evidence, we affirm.
Plaintiff and defendant were divorced in April 2006. The consent judgment of divorce
granted the parties joint legal custody of their son. Defendant received physical custody, and
plaintiff was granted parenting time every Wednesday from 10:00 a.m. to Thursday at 9:00 a.m.
and every other weekend. Plaintiff’s first parenting time weekend of each month was extended
until Monday morning. In February 2008, defendant, who was engaged to a member of the
United States Army, petitioned to change the child’s domicile from Michigan to Kansas and then
ultimately to Fort Campbell, Kentucky. Plaintiff opposed the petition, and moved for physical
custody of the child. The trial court denied defendant’s petition, finding that defendant had not
established that a change in domicile was in the child’s best interest. Then, after finding that the
child had an established custodial environment with both parties, it granted plaintiff’s motion for
a change in custody. It concluded that the child’s needs were best met by remaining in the
Saginaw area with plaintiff.
Defendant first argues that the trial court erred in finding that the child had an established
custodial environment with plaintiff. We disagree. We review a trial court’s findings regarding
the existence of an established custodial environment under the great weight of the evidence
standard. Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). “A finding is
against the great weight of the evidence if the evidence clearly preponderates in the opposite
direction.” Id. at 706.
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Pursuant to MCL 722.27(1)(c), an established 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.
An established custodial environment may exist with the mother and the father if the child looks
to both parents for care, discipline, love, guidance, and attention. Berger, 277 Mich App at 706707.
Defendant claims that the trial court erred in finding that the child had an established
custodial environment with plaintiff because she had been the primary caregiver since the child’s
birth and the child had grown accustomed to her in the role of being the primary parent.
Contrary to defendant’s assertions, a finding that one parent is the primary caregiver does not
preclude a finding that an established custodial environment exists with the other parent. The
determination of where an established custodial environment exists is not a competition between
two contrasting environments that results in the declaration of one winner. Case law has clearly
recognized that an established custodial environment can exist with both parents in their
respective households. See, e.g., id. at 707; Mogle v Scriver, 241 Mich App 192, 197-198; 614
NW2d 696 (2000).
After reviewing the record, we conclude that the trial court’s finding that the child had an
established custodial environment with plaintiff was not against the great weight of the evidence.
It was undisputed that plaintiff exercised all of his parenting time with the child, and defendant
acknowledged that the child looked forward to spending time with plaintiff. Defendant also
admitted that the child was equally bonded to her and plaintiff. There was evidence that plaintiff
provided a home, food, and clothing for the child, helped the child with his speech homework
and attended parent-teacher conferences, attended church with the child, engaged in fun and
recreational activities with the child, and took the child to the doctor when necessary. The
evidence does not clearly preponderate in the opposite direction of the trial court’s finding that
the child had an established custodial environment with plaintiff.1
Defendant next argues that, in ruling on plaintiff’s motion for change of custody, the trial
court erred in finding that factors (d) and (h) of the best interest factors, MCL 722.23, favored
plaintiff. We disagree. We review a trial court’s findings on the best interest factors under the
great weight of the evidence standard. Berger, 277 Mich App at 705.
1
Throughout her brief on appeal, defendant relies on the findings and reasoning of Jill
Hogenson, a custody specialist. However, because the hearing before the trial court was de
novo, MCL 552.507(4), the trial court was not bound by or required to give any deference to
Hogenson’s findings.
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Factor (d) requires a court to consider “[t]he length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining continuity.” MCL 722.23(d).
Defendant claims that the trial court ignored or gave inadequate weight to her role and impact in
the child’s life.
The trial court did not ignore defendant’s role in the child’s life. In its consideration of
factor (d), the trial court acknowledged that defendant was the child’s primary caregiver. It
stated that defendant was an “extremely loving and devoted parent” and that she had a “strong
bond” with the child. The court further stated that it was “ not overlooking what this child will
miss by being separated from Defendant.” However, the primary concern of the court was the
desirability of maintaining continuity in the child’s environment, given that the child “is a high
maintenance child who likes routine and has a difficult time adapting to change.” The trial court
discussed the child’s past living arrangements, and compared the custodial homes offered by
defendant and plaintiff. The trial court concluded that plaintiff’s home in Saginaw offered the
child a greater sense of stability. It noted that if the child moved to Kentucky, he would have to
adapt to a new family environment, as well as a new school, and would not have the benefit of
the involvement of extended family members in his life. In contrast, the court explained that
plaintiff’s home was familiar to the child, and was a place where the child was “comfortable,
happy and well cared for.” It also explained that the child would have the continued benefits of
the involvement of relatives in his life and remaining at his current school, where his teachers
were acquainted with his special needs. The trial court’s finding that factor (d) favored plaintiff
was not against the great weight of the evidence.2
Factor (h) requires a court to consider “[t]he home, school, and community record of the
child.” MCL 722.23(h). Defendant claims that the trial court’s opinion was “absolutely silent”
regarding her contributions to the child’s home, school, and community record.
The trial court’s analysis of factor (h) was silent regarding defendant’s contributions to
the child’s home, school, and community record. However, the trial court was not specifically
required to analyze the parents’ involvement in Saginaw. The trial court found the pertinent
issue to be the child’s school record. It noted that the staff at the child’s current elementary
school had demonstrated a willingness to ensure that the child’s unique development, behavioral,
and emotional needs were met, and that the child’s behavioral issues had improved and he was
no longer behind academically. It then explained that defendant presented no evidence to
demonstrate that the schools in Fort Campbell were better equipped to meet the child’s needs.
The trial court’s finding that factor (h) favored plaintiff was not against the great weight of the
evidence.
2
Defendant also argues that the trial court’s finding that factor (l), “[a]ny other factor considered
by the court to be relevant to a particular child custody dispute,” MCL 722.23(l), favored neither
party was against the great weight of the evidence because the trial court failed to consider her
impact and significance in the child’s life. However, from the trial court’s statements in its
discussion of factor (d), it is clear that the trial court was aware of and did not ignore the role
defendant played in the child’s life.
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Finally, defendant argues that the trial court erred in denying her petition to change the
child’s domicile. Specifically, defendant argues that the trial court erred in finding that factors
(a) and (c) of the D’Onofrio3 factors, codified at MCL 722.31(4), did not favor a change in
domicile. We disagree. We review a trial court’s findings regarding the D’Onofrio factors under
the great weight of the evidence standard. Rittershaus v Rittershaus, 273 Mich App 462, 464;
730 NW2d 262 (2007). A trial court’s ultimate decision on a petition to change the domicile of a
minor child is reviewed for an abuse of discretion. Id. An abuse of discretion occurs 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.” Berger, 277 Mich
App at 705.
MCL 722.31(4) provides, in pertinent part:
Before permitting a legal residence change otherwise restricted by
subsection (1), the court shall consider each of the following factors, with the
child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
***
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child's schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
The trial court’s determination that the move to Kentucky had “the capacity to improve
the quality” of defendant’s life but not the child’s was not against the great weight of the
evidence. Defendant is correct that the trial court did not explore all the nuances of her absence
on the child’s quality of life; however, the record indicates that the court was cognizant that her
absence would affect the boy’s quality of life. In addition, the trial court stated that the child
“favors routine, and has a very difficult time adapting to changes in his surroundings,” and that
defendant failed to show that her new family unit offered the child more stability than plaintiff’s
home. It also stated that defendant failed to show that the child would receive superior medical
care in Fort Campbell. The evidence does not clearly preponderate in the opposite direction of
the trial court’s finding.
With regard to factor (c), the evidence does not clearly preponderate against the trial
court’s finding that the visitation schedule recommended by the Friend of the Court would not
adequately substitute for the weekly contact that plaintiff previously enjoyed with the child.
3
D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976).
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Defendant argues that, because under the recommended schedule plaintiff would only have 21
less overnights than the previous schedule, the schedule adequately preserved plaintiff’s
relationship with the child. However, the trial court noted that under the recommended schedule
several months would likely elapse between the visits. It concluded that the quality of the
plaintiff’s relationship with the child would be affected because of the long time spent apart and
plaintiff’s inability to meaningfully participate in his son’s education. The trial court did not err
in affording great weight to the quality and frequency of the visits, rather than focusing on the
raw number of visits.
Because there is no error in the trial court findings of fact regarding the D’Onofrio
factors, the trial court did not abuse its discretion in denying defendant’s petition to change the
boy’s domicile.
Affirmed.
/s/ Henry William Saad
/s/ Joel P. Hoekstra
/s/ Christopher M. Murray
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