VERNON J GAGNE V ANGIE ORDWAY
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STATE OF MICHIGAN
COURT OF APPEALS
VERNON J. GAGNE,
UNPUBLISHED
August 16, 2002
Plaintiff-Appellant,
v
No. 235425
Saginaw Circuit Court
LC No. 99-022107-DP
ANGIE J. ORDWAY,
Defendant-Appellee.
Before: Kelly, P.J., and Saad and Smolenski, JJ.
PER CURIAM.
Plaintiff appeals as of right an order awarding custody of the parties’ now four-year-old
son Casey to defendant in this custody dispute. Since Casey’s birth, the parties have shared joint
legal custody with defendant exercising sole physical custody and plaintiff exercising significant
parenting time. We affirm.
I. Standard of Review
In child custody cases, we apply three different standards of review. The clear legal error
standard applies where the trial court errs in its choice, interpretation or application of the
existing law. Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001); LaFleche v Ybarra,
242 Mich App 692, 695; 619 NW2d 738 (2000). Findings of fact are reviewed pursuant to the
great weight of the evidence standard. This Court will sustain the trial court’s factual findings
unless “[t]he evidence clearly preponderates in the opposite direction.” Foskett, supra at 5.
Discretionary rulings are reviewed for an abuse of discretion, including a trial court’s
determination on the issue of custody. Id. An abuse of discretion obtains when the result was so
grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment,
or the exercise of passion or bias. Mixon v Mixon, 237 Mich App 159, 163; 602 NW2d 406
(1999).
II. Established Custodial Environment
Plaintiff first argues that the trial erred in finding that an established custodial
environment existed with defendant. We disagree.
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MCL 722(1)(c) provides in relevant part:
The court shall not modify or amend its previous judgments or orders or issue a
new order so as to change the established custodial environment of a child unless
there is presented clear and convincing evidence that it is in the best interest of the
child. The custodial environment of a child 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.
Ever mindful that our Legislature’s intent underlying the Child Custody Act was to
“[m]inimize the prospect of unwarranted and disruptive change of custody orders and to erect a
barrier against removal of a child from an `established custodial environment’ except in the most
compelling cases,” whether a custodial environment has been established is an intense factual
inquiry. Foskett, supra at 6 (emphasis in original.) See also Ireland v Smith, 214 Mich App 235;
542 NW2d 344 (1995).
Upon review of the record, we agree with the circuit court’s finding that a custodial
environment existed with defendant. It is undisputed that since Casey’s birth, defendant has
exercised sole physical custody. See Phillips v Jordan, 241 Mich App 17, 26; 614 NW2d 183
(2000). Clearly, for four years, “an appreciable time,” Casey could not help but “naturally look
to [defendant] . . . for guidance, discipline, the necessities of life, and parental comfort.” MCL
722.27(1)(c); see also Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981); Mogle v
Scriver, 241 Mich App 192 197; 614 NW2d 696 (2000). While the physical environment in
which Casey currently resides may not be perfect, defendant testified that her family has settled
permanently in their current home. Id. Defendant’s current environment includes her husband,
Casey’s half-brother, with another half-sibling on the way. While Casey’s inclination toward
living with defendant permanently was a disputed issue presented during trial, the resolution of
this issue presented a credibility determination which lies within the trial court’s province and for
which this court grants deference. Mogle, supra at 201. On the record here before us, we find
that the trial court did not abuse its discretion in determining that the custodial environment
existed with defendant. Fletcher, supra at 879-880, 900; Phillips, supra at 26.
III. Best Interest Factors
The purpose of the Child Custody Act of 1970, MCL 722.21 et seq., is to promote the
best interests of children. MCL 722.26(1); Frame v Nehls, 452 Mich 171, 176; 550 NW2d 739
(1996). When a party seeks to change the established custodial environment, the party must
show that the change serves the child’s best interests by clear and convincing evidence. MCL
722.27(1)(c); Phillips, supra at 21. In considering a change of custody, the trial court examines
the following statutory custody factors:
(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
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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
needs.
(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.
(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. [MCL 722.23.]
Generally speaking, the trial judge must consider each of the twelve statutory custody
factors and expressly state its findings and conclusions on each factor or the decision may be
reversed. McCain v McCain, 229 Mich App 123, 124; 580 NW2d 485 (1998); Daniels v
Daniels, 165 Mich App 726, 730; 418 NW2d 924 (1988). However, the trial court is not
required to specifically rule on every piece of evidence or address every single argument.
Fletcher v Fletcher, 447 Mich 871, 883; 526 NW2d 889 (1994); LaFleche, supra at 700.
Here, the circuit court properly made specific factual findings and weighed evidence
from both parties on each of the statutory custody factors. MCR 2.517(A)(1); McCain, supra at
124. The court found the parties equal on factors (a), (b), (f), (g), (i), and (k), and found in favor
of defendant on the rest – (c) through (e), (h), (j), and (l).
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A. MCL 722.23(a)-(c)
Plaintiff first contests the trial court’s findings on factors (a) through (c) because the child
was burned four times while with defendant, and defendant may not be able to support the child
should she divorce her current husband.
With regard to factor (a), the trial court’s holding that the parties were equal was not an
abuse of discretion. Fletcher, supra at 879-880. Witness testimony established that each party
has love, affection, and other emotional ties with Casey. The trial court was able to assess the
witnesses’ credibility concerning plaintiff’s abuse claim, and ultimately agreed with the Family
Independence Agency that the allegations of abuse were unsubstantiated. Mogle, supra at 201.
The same is true of the evidence presented on factor (b). The trial court correctly found that
because defendant is now a “stay-at-home” mom, she has more time for Casey. Moreover, the
fact that only plaintiff provides Casey with religious training does not entitle him to prevail on
this factor. With regard to factor (c), it was also within the province of the trial court to
determine that defendant paid more attention to Casey’s medical needs. Id. Although plaintiff
said he would like to be involved with Casey’s speech therapy, the trial court noted that plaintiff
never acknowledged a developmental problem in Casey’s speech.
Finally, the trial court cannot predict the future concerning the parties’ economic
stability. Upon review of the record, each party had an adequate household income. However,
because plaintiff generally works full-time, if he had full custody, plaintiff would only have
evenings to spend with Casey, thus requiring daycare services. On the other hand, because
defendant is a “stay-at-home” mom, defendant may remain at home and does not require regular
daycare assistance. See Phillips, supra at 25-26. We therefore find that the trial court did not
abuse its discretion in finding that the parties were equal on factors (a) and (b), and that factor (c)
weighted in favor of defendant.
B. MCL 722.23(d), (e), and (j).
Plaintiff also contends that he should have prevailed on factors (d), (e), and (j) because
defendant moved and changed relationships frequently, and did not communicate fully with him.
We find no error.
Although plaintiff alleged that defendant changed relationships and homes frequently
since Case’s birth, defendant testified that the home that she now shares with her husband and
has shared over the past two years is permanent. In fact, defendant testified that she and her
husband were planning to build an addition onto their home. Moreover, the circuit court
emphasized that defendant is in a marriage relationship and that her family includes Casey’s
half-brother, with another half-sibling on the way. Again, contrary to plaintiff’s argument, just
as defendant’s marital status could change in the future, so could plaintiff’s.
Finally, the trial court did not believe plaintiff’s allegations that Casey was
uncomfortable at defendant’s home and that defendant’s home was unsuitable for Casey. The
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trial court then considered plaintiff’s arguments as evidence that plaintiff is unwilling to facilitate
a relationship between defendant and Casey. Determinations regarding credibility are within the
trial court’s province. Mogle, supra at 201. A review of the record demonstrates that the trial
court did not err in its determination on factors (d), (e), or (j). See Baker, supra at 579-580.
IV. Conclusion
As the trial court noted, the parties were equally situated on many of the child custody
factors. Plaintiff did not demonstrate by the requisite clear and convincing evidence that good
cause or the child’s best interests require changing Casey’s present custodial environment in and
through defendant’s home. Id.; see also Foskett, supra at 5. Therefore, the trial court’s decision
was not an abuse of its discretionary authority. Fletcher, supra at 879-880.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Henry William Saad
/s/ Michael R. Smolenski
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