PATRICK JOSEPH MACINTYRE V REGINA MAUREEN MACINTYREAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PATRICK JOSEPH MACINTYRE,
July 21, 2005
Oakland Circuit Court
LC No. 02-667376-DM
Official Reported Version
REGINA MAUREEN MACINTYRE,
Before: Neff, P.J., and Jansen and Cooper, JJ.
In our original opinion, we found that § 5080 of the domestic relations arbitration act1
required a trial court to conduct a de novo evidentiary hearing upon a party's request in order to
make the ultimate determination regarding the best interests of a minor child.2 The Michigan
Supreme Court reversed our opinion vacating the trial court's judgment and remanding for a de
novo evidentiary hearing, holding that "as long as the circuit court is able to 'determine
independently what custodial placement is in the best interests of the children[,]' an evidentiary
hearing is not required in all cases."3 The Court found that, in this case, the trial court "was able
to make such an independent determination without a hearing."4 Accordingly, we are directed
on remand to consider defendant's remaining issue on appeal.5
Defendant contends that the arbitrator failed to consider all the evidence in rendering her
child custody decision and, therefore, her factual findings were against the great weight of the
evidence and her ultimate determination to grant plaintiff sole physical custody was not in the
MacIntyre v MacIntyre, 264 Mich App 690, 697; 692 NW2d 411 (2005) (MacIntyre I).
MacIntyre v MacIntyre, 472 Mich 882 (2005) (MacIntyre II), quoting Harvey v Harvey, 470
Mich 186, 187; 680 NW2d 835 (2004) (emphasis added).
A history of the proceedings in this case appears in our original opinion. MacIntyre I, supra at
minor child's best interests. Therefore, defendant asserts that the trial court's ratification of the
arbitration award was improper. In relation to child custody cases, we review the trial court's
findings of fact pursuant to the "great weight of the evidence" standard, and discretionary
rulings, including the court's ultimate determination of custody, for an abuse of discretion.6
The trial court agreed with the arbitrator's finding that an established custodial
environment existed with both parties. In order to change that custodial environment, a party
must prove by clear and convincing evidence that the change is in the minor child's best
interests.7 The twelve factors to be considered in determining the best interests of a minor child
are enumerated in MCL 722.23.8 In rendering his or her custody determination, the finder of fact
Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001).
MCL 722.27(1)(c); Brown v Loveman, 260 Mich App 576, 594; 680 NW2d 432 (2004),
quoting DeGrow v DeGrow, 112 Mich App 260, 269-270; 315 NW2d 915 (1982).
MCL 722.23 provides:
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:
(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
(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.
must state his or her factual findings and conclusions under each best interests factor.9 These
findings and conclusions need not include consideration of every piece of evidence entered and
argument raised by the parties.10 However, the record must be sufficient for this Court to
determine whether the evidence clearly preponderates against the trial court's findings.11
In this case, the arbitrator found that factors (b), (e), (g), (h), (j), and (k) favored plaintiff,
while the parties were equal with regard to factors (a), (c), (d), (f), and (l). The arbitrator
indicated that she considered the minor child's preference under factor (i), but did not state that
preference on the record. The trial court agreed with the arbitrator that it was in the child's best
interests to grant plaintiff sole physical custody. However, after reviewing the entire record, the
trial court found that factor (c) slightly favored plaintiff and that the parties were equal with
regard to factor (e). Defendant now challenges the trial court's findings with regard to each best
interest factor except factor (l).12
The trial court found the parties equal in regard to factor (a). Factor (a) refers to "[t]he
love, affection, and other emotional ties existing between the parties involved and the child."13
Defendant contends that plaintiff 's negative results on an objective psychological exam,
Minnesota Multiphasic Personality Inventory (MMPI), should tip this factor in her favor.14
However, Dr. Ira Schaer testified that this test is based only on actuarial tables and found that
(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.
Foskett, supra at 9.
Id. at 12, citing MCR 2.517(A)(2), and Fletcher v Fletcher, 447 Mich 871, 883; 526 NW2d
889 (1994) (Fletcher II). See also LaFleche v Ybarra, 242 Mich App 692, 700; 619 NW2d 738
Foskett, supra at 5, quoting LaFleche, supra at 695.
Factor (l) is a catchall, referring to "[a]ny other factor considered by the court to be relevant to
a particular child custody dispute." MCL 722.23(l).
Dr. Ira Schaer conducted the Friend of the Court psychological examinations and administered
the MMPI test. The MMPI results indicated that plaintiff may be psychologically inaccessible,
unable to form bonds and attachments, potentially explosive toward others, and rigid in his
stance on issues.
plaintiff presented himself quite differently during interviews.15 Defendant retained an expert to
review the psychological examinations. That doctor testified that she would have conducted
more objective testing and indicated that she would have weighed some factors differently. The
doctor also admitted that she had not interviewed the parties and that Dr. Schaer conducted the
examinations within professional standards. Based on this evidence, the trial court properly
declined to place more emphasis on the MMPI test results.
Furthermore, the record evidence supports the trial court's finding on this factor. The
record evidence reveals that the child loves and is bonded with both his parents, although each
puts his or her own interests ahead of the child's. Defendant demonstrates an unhealthy
dependence on the child, makes inappropriate remarks about plaintiff, and reveals her volatile
anger toward plaintiff in front of the child. Plaintiff spends many nights and weekends away
from the home and the child to engage in optional work activities.16 Accordingly, finding the
parties equal on this factor is not against the great weight of the evidence.
The trial court determined that factor (b) slightly favored plaintiff. Factor (b) measures
"[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."17 Although each party equally assisted the child with his schoolwork, hobbies, and
religious education, the arbitrator found that plaintiff was the "rule giver" and was better able to
provide guidance. Defendant often placed her need for the child's affection above his need for
discipline. The child admitted to Dr. Schaer in front of defendant that defendant provides little
support, direction, and discipline. This evidence supports the trial court's finding on this factor.
The arbitrator determined that the parties were equal with regard to factor (c). Upon a
review of the record, the trial court determined that this factor slightly favored plaintiff. Factor
(c) refers to "[t]he 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 . . . ."18 The evidence shows that both parties are willing and able to provide for the child.
However, the trial court weighed this factor in favor of plaintiff in light of defendant's evasive
testimony regarding her reasons for discontinuing the child's therapy sessions. In light of this
fact, the evidence does not clearly preponderate against the trial court's finding on this factor.
The trial court found the parties equal with regard to factor (d). Factor (d) refers to "[t]he
length of time the child has lived in a stable, satisfactory environment, and the desirability of
Dr. Schaer testified that plaintiff 's test results indicated that he was a positive and cheerful
person. Yet, plaintiff reported during the evaluation that he was depressed.
Plaintiff is a high school teacher and coaches extracurricular competitive robotic and electric
maintaining continuity."19 The evidence reveals that the child had consistently lived with both
parents throughout his life and that this environment became more volatile over the years. In
reaching this conclusion, the arbitrator listed several instances in which defendant interfered with
plaintiff 's belongings or projects he had done in the home, often in the child's presence.
Defendant contends that the arbitrator should have used the fact that she threw out plaintiff 's
expired food in her favor.20 However, there is no record that the arbitrator made any finding
based on this piece of evidence. In light of defendant's interference with plaintiff 's contributions
to the home, this factor actually weighs in favor of plaintiff.
The arbitrator determined that factor (e) slightly favored plaintiff, while the trial court
found the parties equal. Factor (e) refers to "[t]he permanence, as a family unit, of the existing or
proposed custodial home or homes."21 The family unit had not been intact for some time prior to
the divorce. Plaintiff resided in a mobile home in the backyard. While the divorce proceedings
were pending, the parties engaged in a "nesting" arrangement, in which each parent spent time
alone in the family home with the child. The arbitrator based her determination on the fact that
plaintiff wanted to remain in the marital home if he was granted custody, while defendant wanted
to sell the home and split the proceeds.22 Plaintiff also indicated that he would adjust his
schedule accordingly if granted physical custody. In light of this testimony, the trial court's
finding, which favors defendant, is not against the great weight of the evidence.
The trial court found that there was no dispute regarding factor (f) and, therefore, found
the parties equal with regard to this factor. Factor (f) refers to "[t]he moral fitness of the parties
involved."23 Defendant now contends that this factor should have been weighed in her favor
because plaintiff kissed a waitress in front of the child sometime after the divorce proceedings
were initiated. Even if defendant's allegation were true, it would not form the basis for a finding
of immorality.24 Accordingly, finding the parties equal is not against the great weight of the
Defendant believes that this fact positively reflects that she purchased the groceries and cared
for the home. However, defendant also testified that she purposefully interfered with groceries
plaintiff purchased by throwing away junk food regardless of the expiration date.
While defendant testified that she wanted to stay in the marital home so the child could
continue in the same school system, this is not the relief she sought in her proposed property
See Fletcher II, supra at 887 (an extramarital affair is an insufficient ground for a finding of
immorality under factor f); Hillard v Schmidt, 231 Mich App 316, 323-324; 586 NW2d 263
(1998) (cohabitation is an insufficient ground for a finding of immorality).
The trial court found that factor (g) favored plaintiff. Factor (g) measures "[t]he mental
and physical health of the parties involved."25 The record is replete with evidence of defendant's
uncontrollable and inappropriate displays of anger in the child's presence.26 However, defendant
again asserts that plaintiff 's negative MMPI test results should have factored against him. As we
noted previously, the arbitrator and the trial court properly weighed these results. Defendant also
contends that the arbitrator ignored evidence that plaintiff instigated the incident in which she hit
him with an iron. Even if this allegation were true, the numerous other incidents involving
defendant's volatile anger form a sufficient basis to support this finding. Accordingly, the trial
court's determination of this factor is consistent with the evidence.
The trial court found that factor (h) favored plaintiff. Factor (h) refers to "[t]he home,
school, and community record of the child."27 The arbitrator's decision was based on the fact
that the child's grades and behavior at school declined following an incident in which defendant
rearranged his room and damaged his belongings after he and plaintiff worked together to clean
the room.28 As a result, the child began sleeping on the couch. Defendant contends that this
factor should be weighed in her favor as plaintiff only became involved in the child's boy scout
activities following the initiation of divorce proceedings. However, defendant's own testimony
contradicts this allegation.29 This finding is, therefore, consistent with the record evidence.
In relation to factor (i), the arbitrator merely indicated that she considered the child's
preference in making her determination. Factor (i) takes into consideration "[t]he reasonable
The arbitrator relied on the following instances of defendant's anger and violence, many of
which occurred in front of the child, in weighing this factor: (1) knocking plaintiff on the arm
with an iron; (2) throwing cold coffee at plaintiff while the child was nearby; (3) telling the child
that it "looks like we're going to get divorced—Daddy's leaving," plaintiff is "a shitty father,"
"we may have to move," plaintiff is an alcoholic, plaintiff works outside the home to "hurt
[you]," plaintiff 's mother has been in a psychiatric hospital, and plaintiff 's parents are "Nazis";
(4) telling the Friend of the Court counselor that plaintiff was nothing more than a sperm donor;
(5) not allowing plaintiff to watch the child while she was out of town during her scheduled
parenting time; (6) not allowing the child to use the Pinewood Derby car that he had built with
plaintiff; (7) sleeping with the child after the child expressed discomfort over this arrangement;
(8) thinking that it was appropriate to discuss the divorce action with the child, including asking
him what he told Dr. Schaer and accusing the doctor of lying in his report; (9) locking the child
in his room overnight as punishment with a can in which to relieve himself; and (10) denigrating
plaintiff in front of the child in Dr. Schaer's office during an interview.
Besides rearranging the furniture, defendant cut the wires to the child's video game system,
threw some of his belongings on the garage floor, and removed the child's television console
from the house.
When asked, defendant admitted that plaintiff was involved in the child's boy scout activities
prior to the institution of these divorce proceedings and "reluctantly" participated in the boy
scouts' annual Pinewood Derbies.
preference of the child, if the court considers the child to be of sufficient age to express
preference."30 The trial court need not violate the child's confidence by revealing that preference
on the record.31 Furthermore, there is no record evidence to support defendant's contention that
the child is physically ill over the idea of living with plaintiff.
The trial court found that factor (j) favored plaintiff. Factor (j) considers "[t]he
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 . . . ."32 There is ample evidence
to support the finding that defendant was unwilling to facilitate and encourage a close
relationship between plaintiff and the child. She denigrated plaintiff in front of the child and Dr.
Schaer, and interfered with plaintiff 's parenting time. Conversely, the child told Dr. Schaer that
plaintiff does not verbally attack defendant, and plaintiff allowed the child to stay with defendant
when he had to go out of town during his scheduled parenting time. Accordingly, this finding is
not against the great weight of the evidence.
Finally, the trial court found that factor (k) favored plaintiff. Factor (k) refers to
"[d]omestic violence, regardless of whether the violence was directed against or witnessed by the
child."33 Both parties admitted spanking the child. However, as noted previously, the child
witnessed defendant physically attack plaintiff and defendant did not deny these allegations of
domestic violence. While defendant also raised allegations that plaintiff had been violent toward
her in the past,34 the arbitrator found her testimony to be incredible. As we defer to the factfinder's determinations regarding witness credibility,35 we will not disturb this finding.
The trial court and the arbitrator properly considered each best interest factor and
rendered factual findings consistent with the record evidence. As the evidence supported these
findings, there is no basis on which to find that the trial court abused its discretion in granting
plaintiff sole physical custody of the child.
/s/ Janet T. Neff
/s/ Kathleen Jansen
/s/ Jessica R. Cooper
Fletcher v Fletcher, 200 Mich App 505, 518; 504 NW2d 684 (1993) (Fletcher I), rev'd in part
on other grounds Fletcher II, supra.
Defendant contended that plaintiff pushed her on several occasions and would physically
block her retreat during arguments.
Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).