WENDELL R DEATON V JUDY M DEATON (MCCOY)

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STATE OF MICHIGAN COURT OF APPEALS WENDELL R. DEATON, UNPUBLISHED February 26, 2002 Plaintiff/CounterdefendantAppellee, v No. 233475 Washtenaw Circuit Court LC No. 99-015320-DM JUDY M. DEATON, a/k/a JUDY MCCOY, Defendant/Counterplaintiff- Appellant. Before: Griffin, P.J., and Holbrook, Jr., and Hoekstra, JJ. PER CURIAM. Defendant appeals as of right from a judgment of divorce which awarded sole physical custody of the parties’ minor child to plaintiff. Defendant appeals only the custody determination. We affirm. Defendant argues that the trial court’s findings relative to best interest factors (c), (d), and (h) were against the great weight of the evidence.1 We disagree. A trial court’s findings of fact are reviewed by this Court pursuant to the great weight of the evidence standard. MCL 722.28. The trial court's findings as to each factor should be affirmed on appeal unless the evidence clearly preponderates in the opposite direction. Fletcher v Fletcher, 447 Mich 871, 879; 526 NW2d 889 (1994); Hilliard v Schmidt, 231 Mich App 316, 321; 586 NW2d 263 (1998). Following our review of the record, we conclude that the evidence does not clearly preponderate in defendant’s favor. The trial court determined that factor (c) favored plaintiff “only very slightly.” Defendant’s assertion that there was no evidence to prove that the parties’ son needed regular administration of medicine or that she ever failed to administer needed medical treatment to the child or herself is belied by the record. Plaintiff testified to the contrary on each of these points. The psychologist also offered contrary testimony. We defer to the trial court’s assessment of witness credibility. Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000). 1 The trial court found factor (b) favored defendant and that factors (a), (e), (f), (g), and (k) favored neither party. -1- Additionally, defendant’s contention that it is illogical to assert that there is a correlation between her ability to medicate herself and her ability to give her son medication is without merit. If defendant forgot to take medication herself, there is a higher likelihood that she would forget to give medication to her son. We also find that the record supports the trial court’s conclusion regarding factor (d). The child had lived the majority of his short life in Ann Arbor, Michigan. His doctors and social groups were in Ann Arbor. The child’s daycare in Ann Arbor was provided by plaintiff’s parents. In Tennessee it would be necessary for the child to be enrolled in outside daycare. Also, the psychologist testified that maintaining the status quo for the child was very important and strongly discouraged a change in domicile. The trial court found this testimony to be persuasive because it was objective, as opposed to that given by most of the witnesses. Plaintiff was the only parent still residing in Ann Arbor. The trial court also found that factor (h) favored plaintiff, and we cannot conclude that the evidence preponderates in defendant’s favor. While the child had not developed a significant home, school, or community record due to his young age, the evidence does establish that both his doctors and social playgroups were in Ann Arbor, which was a tie to the community. In contrast, the child had no ties to anyone in Tennessee beyond defendant. Defendant asserts that because the trial court decided that no custodial environment existed, it could not consider either Michigan or Tennessee as a better place for the child to reside. We disagree and find no error in the trial court’s determination. Since no custodial environment existed we review under the preponderance of the evidence standard and whether the trial court abused its discretion in its determination. Our review of the record reveals that the trial court did not abuse its discretion in its findings. Hence, there is no error in the trial court’s finding awarding sole physical custody to plaintiff. Affirmed. /s/ Richard Allen Griffin /s/ Donald E. Holbrook, Jr. /s/ Joel P. Hoekstra -2-

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