CHRISTINA LYN POWERY V JOHN BRADEN WELLSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
CHRISTINA LYN POWERY, f/k/a CHRISTINA
April 8, 2008
Mason Circuit Court
LC No. 04-000326-DM
JOHN BRADEN WELLS,
Advance Sheets Version
Before: Wilder, P.J., Saad, C.J., and Smolenski, J.
In this child-custody dispute, plaintiff Cynthia Lyn Powery appeals from the trial court's
order directing that the residence of the parties' minor child not be changed to Traverse City and
granting defendant John Braden Wells weekly physical custody of the child during the school
year in the event that plaintiff chose to remain in Traverse City. We affirm.
Plaintiff says that the trial court erred in holding an evidentiary hearing because her move
from Ludington to Traverse City was less than 100 miles and, therefore, was insufficient to
constitute a change of circumstances warranting an evidentiary hearing on the best-interest
factors of MCL 722.27(1)(c). We disagree. "[A]ll custody orders must be affirmed on appeal
unless the trial court's findings were against the great weight of the evidence, the court
committed a palpable abuse of discretion, or the court made a clear legal error on a major issue."
Mason v Simmons, 267 Mich App 188, 194; 704 NW2d 104 (2005). Clear legal error occurs
when a trial court "incorrectly chooses, interprets, or applies the law." Id. (citation and internal
quotation marks omitted).
A party that seeks a change in custody has the initial burden of establishing, by a
preponderance of the evidence, that either proper cause or a change of circumstances exists to
warrant a change in custody. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499,
509; 675 NW2d 847 (2003). Thereafter, the trial court then determines whether an established
custodial environment exists and analyze the best-interest factors set forth in MCL 722.23. Id.
If the court finds that an established custodial environment exists, it may not change the
established custodial environment unless it finds clear and convincing evidence that a change in
custody is in the child's best interest. MCL 722.27(1)(c). See also Dumm v Brodbeck, 276
Mich App 460, 462; 740 NW2d 751 (2007).
Plaintiff argues that her proposed move only requires a modification of parenting time.
However, "if a requested modification in parenting time amounts to a change in the established
custodial environment, it should not be granted unless the trial court is persuaded by clear and
convincing evidence that the change would be in the best interest of the child." Brown v
Loveman, 260 Mich App 576, 595; 680 NW2d 432 (2004). Plaintiff does not challenge the trial
court's finding that an established custodial environment existed with both parties. After making
this determination, the trial court considered whether the proposed alteration to the parentingtime schedule necessitated by the proposed move amounted to a change in the established
custodial environment. Id. at 595-596. Here, the evidence presented at the motion hearing
showed that if plaintiff moved to Traverse City, either she or defendant would be relegated to the
role of a "weekend" parent. Conversely, when both parties lived in Ludington, they were equally
active in their daughter's life. Because any modification of "parenting time" based on this move
would amount to a change in the established custodial environment, an "analysis under the best
interest factor framework" was required. Id. Therefore, the trial court properly held an
This same analysis also resolves plaintiff's claim that the trial court erred by placing on
the plaintiff the burden proving that the move to Traverse City is in the child's best interest.
Although defendant filed the motion to change custody after plaintiff told him that she planned
to make the move to Traverse City, plaintiff also requested a modification of the existing
parenting-time arrangement based on her move to Traverse City. The trial court properly found
that plaintiff's move to Traverse City would change the established custodial environment. Thus,
it could not grant the modification without first determining whether clear and convincing
evidence indicated that the change was in the best interest of the child. Brown, supra at 595.
Because plaintiff made the move to Traverse City, which necessitated the attendant modification
of parenting time, she had the burden of establishing that the existing custody arrangement
should be disrupted. Id. "Where there is a joint established custodial environment, neither
parent's custody may be disrupted absent clear and convincing evidence." Sinicropi v Mazurek,
273 Mich App 149, 178; 729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8;
634 NW2d 363 (2001) (emphasis added).
Plaintiff also maintains that the trial court erred when it granted defendant's motion for a
change in custody after determining that the plaintiff had not met her burden of proof. However,
because the child had an established custodial environment with both parents, plaintiff had the
burden of showing that her proposed modification of the custody arrangement (specifically,
moving her daughter to Traverse City) was in the child's best interest.
However, plaintiff does not address this issue in her argument on appeal. Instead, her
argument focuses on which party is best situated to do the traveling necessary to maintain the
roughly equal amount of parenting time previously enjoyed by both parties. Plaintiff asserts that
because defendant has a flexible work schedule, he should bear the burden of driving to Traverse
City to visit the child in order to assure that any disruption to the amount of parenting time
enjoyed by each party would be minimized. In other words, plaintiff's argument assumes, but
does not prove, the legitimacy of her move to Traverse City. Moreover, plaintiff's argument
spotlights testimony by a psychologist that the move would have an adverse effect on the child
because it could disrupt the parties' time with their daughter. Accordingly, plaintiff failed to
establish that the move was in the child's best interest.
The trial court modified the existing custody order by awarding weekly physical custody
to defendant during the school year in the event plaintiff chose to remain in Traverse City.
However, the trial court may not modify an existing custody order absent clear and convincing
evidence that such a change is in the child's best interest. Sinicropi, supra at 178. We
acknowledge that the trial court failed to include a concise, explicit statement that modifying the
custody order to grant defendant weekly physical custody during the school year was in the
child's best interest. Nonetheless, such a finding can easily and clearly be drawn from the trial
court's written opinion. The trial court found that plaintiff's move to Traverse City constituted a
change in the child's established custodial environment, because the parties would be unable to
continue their arrangement of nearly equal parenting time. Consequently, there are only two
possible outcomes of plaintiff's move, namely, plaintiff as weekend parent or defendant as
weekend parent. The trial court expressly found that removing the child to Traverse City, where
she would lose the regular mid-week contact with defendant, "does not promote Kaylie's best
interests." Logically, this means that of the two available choices, weekly custody with
defendant was the option that was in the child's best interest. Furthermore, the trial court found
that two of the best-interests factors enumerated in the statute favored defendant over plaintiff,
and that the remainder were inapplicable or equal for the parties, with none of the factors
favoring plaintiff. Factor l, MCL 722.23(l) any other factor that the court considers relevant,
also weighed in defendant's favor. Clearly, the trial court found that the continuity of remaining
in Ludington was preferable to the uncertainty of a move to Traverse City. These findings
constitute an unmistakable finding that custody with defendant was in the child's best interest, so
long as plaintiff chose to remain in Traverse City.
/s/ Henry William Saad
/s/ Kurtis T. Wilder
/s/ Michael R. Smolenski