KURT MORSE V JAMIE MORSE
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STATE OF MICHIGAN
COURT OF APPEALS
KURT MORSE,
UNPUBLISHED
May 18, 2010
Plaintiff-Appellant,
v
No. 295175
Jackson Circuit Court
LC No. 05-003997-DM
JAMIE MORSE, a/k/a JAMIE FIELDING,
Defendant-Appellee.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order denying his motion to modify judgment
of divorce regarding child custody, parenting time, and child support of the parties’ minor child.
We affirm.
The sole issue on appeal is whether the trial court erroneously concluded that plaintiff
failed to establish proper cause or change in circumstances to warrant review of the existing
child custody order.
A trial court may modify or amend child custody orders because of change in
circumstances or for proper cause shown. MCL 722.27(1)(c). Plaintiff, as the moving party,
carried the burden of proof to establish either a change in circumstances or proper cause by a
preponderance of the evidence. Vodvarka v Grasmeyer, 259 Mich App 499, 508-509; 675
NW2d 847 (2003). To establish a change in circumstances, plaintiff 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. Killingbeck v
Killingbeck, 269 Mich App 132, 145; 711 NW2d 759 (2005). To demonstrate proper cause
necessary to revisit a custody order, plaintiff must prove the existence of an appropriate ground
for legal action to be taken by the trial court. Vodvarka, 259 Mich App at 512.
Plaintiff asserted that the following facts demonstrate change in circumstances:
defendant stopped giving the child necessary medications; defendant made decisions regarding
counseling for the child without affording plaintiff an opportunity to participate in such
decisions; and the parties’ poor communication materially affects the child’s care. Plaintiff also
contended that the following facts demonstrate proper cause: the child developed behavioral
problems after the entry of the existing child custody order and plaintiff moved closer to
defendant’s residence.
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We conclude that plaintiff failed to establish by a preponderance of the evidence either a
change in circumstances or proper cause to warrant review of the existing child custody order.
The trial court found that defendant decided not to give one particular type of medication
to the child based on the advice of a healthcare professional. As for the counseling, the record
indicates that defendant took the child for counseling for a little over three months, between
September and November of 2008. The counselor had a telephone conversation with plaintiff in
December 2008 at which time plaintiff expressed shock that the child needed counseling and
indicated he wanted to participate. In January 2009, when the counselor contacted defendant,
she reported that the child was doing great and no longer needed counseling. In a subsequent
conversation with plaintiff, the counselor reported that he could meet with plaintiff to address his
questions and concerns but that defendant felt the child was doing well and did not need to
continue. The counselor noted that “[w]hereas in [their] first contact [plaintiff] questioned
whether [treatment] was needed to begin with, he now questions whether [the] decision to stop is
appropriate.” The trial court concluded that it was understandable that the child was having
adjustment difficulties and that it did not think that those difficulties were to be expected and
were not enough to create a situation creating “change enough for me to look at this again.”
Finally, with respect to the communication issues, the trial court noted that the child has
“unlimited access” to plaintiff and found that “[i]t sounds like the parties still communicate okay
and that [plaintiff is] still involved in certain extracurricular activities.”
Based on the record before us, we conclude that plaintiff’s allegations regarding failure to
give medication, decisions related to counseling, and the parties’ poor communication were not
of such magnitude to have a significant effect on the child’s well-being. Id. at 513. The record
does not reveal any material changes that have or could have a significant effect on the child’s
well-being. Killingbeck, 269 Mich App at 145. Further, we conclude that plaintiff’s allegations
related to the child’s behavioral problems or plaintiff’s recent move were insufficient to establish
proper cause. The trial court concluded that the behavioral problems were to be expected and the
counselor’s notes indicated that, although the child was having problems adjusting, he observed
some improvement. We conclude that, absent some showing of potential injury or harm to a
child, a child’s problems stemming from difficulties adjusting to a change in custody, by
themselves, are insufficient to establish proper cause to reevaluate a custody determination.
Were it otherwise, custody decisions would never be settled. Thus, plaintiff also failed to
establish the existence of an appropriate ground for legal action to be taken by the trial court.
Vodvarka, 259 Mich App at 512.
Because plaintiff failed to carry his burden to demonstrate either a change in
circumstances or proper cause to warrant review of the existing custody order, the trial court was
not authorized to revisit the existing child custody decision and engage in a reconsideration of
the statutory best interest factors. Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874
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(1994). On the record, the trial court’s denial of plaintiff’s motion was not an abuse of discretion
because it was not 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 v Berger,
277 Mich App 700, 705; 747 NW2d 336 (2008).
Affirmed.
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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