JEAN M ROSS V MICHAEL T ROSS
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
JEAN M. ROSS,
UNPUBLISHED
December 14, 2004
Plaintiff-Appellee,
v
No. 255386
Oakland Circuit Court
LC No. 1999-630092-DM
MICHAEL T. ROSS,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right an order denying his petition to change custody of the
parties’ three minor children. We affirm.
Plaintiff and defendant were divorced on January 14, 2002. Plaintiff and defendant have
three minor children together. On January 14, 2002, the trial court ordered that plaintiff and
defendant have joint legal custody of the children, that plaintiff have primary physical custody,
and that defendant have parenting time every other weekend, every Tuesday evening during the
academic school year, Thursday evenings preceding plaintiff’s weekend with the children, four
weeks in the summer, and alternating holidays.
On February 18, 2004, defendant filed a petition to change primary physical custody,
alleging that he could provide a more nurturing environment than plaintiff and that he has
encouraged enrichment opportunities and expansion of personal development while plaintiff has
restricted and/or prevented such activities.
Defendant further alleged that plaintiff’s
emotional/personality problems have affected her ability to do what is in the best interests of the
children. Defendant further contended that plaintiff interferes with his role as a father and has
refused and/or failed to present the children for parenting time. Lastly, defendant claimed that
the children desire to reside with him rather than plaintiff. Plaintiff denied defendant’s
allegations as untrue and requested that defendant’s petition be denied.
On February 25, 2004, a hearing was held regarding defendant’s petition for change of
custody. The trial court denied defendant’s motion, concluding that defendant failed to show
proper cause or change of circumstances, which would warrant a change of custody.
-1-
On April 2, 2004, defendant filed a motion for reconsideration, arguing that there was
proper cause/change in circumstances that warranted an evidentiary hearing. This motion was
also denied.
Defendant’s first issue on appeal is that the trial court committed error requiring reversal
in summarily dismissing his motion for change of custody by failing to conduct an evidentiary
hearing, by failing to interview the minor children, by failing to seek an expert opinion, by
failing to address the “best interest” factors, and by failing to apply the correct standard in
determining defendant’s right to an evidentiary hearing. We disagree.
When reviewing child custody cases, findings of fact are reviewed under the great weight
of the evidence standard, discretionary rulings are reviewed for an abuse of discretion, and
questions of law are reviewed for clear error. Phillips v Jordan, 241 Mich App 17, 20; 614
NW2d 183 (2000); MCL 722.28. A custody award may be modified on a showing of proper
cause or change of circumstances which establishes that the modification is in the child’s best
interests. Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001); MCL 722.27(1)(c).
“[T]o establish ‘proper cause’ necessary to revisit a custody order, a movant must prove by a
preponderance of the evidence the existence of an appropriate ground for legal action to be taken
by the trial court.” Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003).
“The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest
factors, and must be of such magnitude to have a significant effect on the child’s well-being.”
Id. “When a movant has demonstrated such proper cause, the trial court can then engage in a
reevaluation of the statutory best interest factors.” Id.
“[I]n order to establish a ‘change of circumstances,’ a movant 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.” Vodvarka,
supra at 513 (emphasis in original). “Again, not just any change will suffice, for over time there
will always be some changes in a child’s environment, behavior, and well-being.” Id. “Instead,
the evidence must demonstrate something more than the normal life changes (both good and bad)
that occur during the life of a child, and there must be at least some evidence that the material
changes have had or will almost certainly have an effect on the child.” Id. at 513-514. “[W]here
the party seeking to change custody has not carried the initial burden of establishing either
proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an
otherwise valid prior custody decision and engage in a reconsideration of the statutory best
interest factors.” Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).
At the hearing regarding defendant’s petition to change custody, defendant argued that he
should receive primary physical custody of the children because plaintiff prevented the children
from participating in extracurricular activities, failed to abide by the parenting time schedule, and
maligned defendant in front of the children. Defendant further claimed that he is now settled
into his new home and that the children wanted to live with him. The trial court held that there
was not proper cause or change of circumstance to warrant a change of custody. In making this
ruling, the trial court found that defendant’s current problems with plaintiff were ongoing and
existed at the time custody was decided. The trial court noted that defendant owned his own
home at the time custody was decided. The trial court further noted that even if the children now
preferred to live with defendant, their preference alone would not warrant a change in custody.
-2-
In order for the trial court to engage in a reevaluation of the statutory best interest factors,
defendant had to show, by a preponderance of the evidence, either the existence of an
appropriate ground for legal action to be taken by the trial court, or that the children’s custodial
environment had materially changed since the entry of the last custody order, which could have a
significant effect on the children’s well-being. Vodvarka, supra at 512-513. Defendant has
shown neither. Before the entry of the last custody order, plaintiff and defendant were having
problems with denigrating each other in front of the children, with agreeing on parenting time,
and with deciding details regarding the children’s extracurricular activities. These problems
existed prior to the entry of the last custody award and do not amount to either a proper cause or
a change of circumstances, as they neither warrant legal action nor amount to a material change
of the custodial conditions. Further, defendant’s claim that he is now settled into his new home
is of little significance, as he owned the home at the time the last custody award was entered.
Finally, defendant’s allegation that the children now prefer to live with him was not based on any
evidence. Even if the allegation was true, in light of the fact that the children’s living situation
has not materially changed since the entry of the last custody award, and in light of the fact that
the children are doing extraordinarily well in school, this allegation alone would not constitute
proper cause or change of circumstances warranting a change of custody. See Curlyo v Curlyo,
104 Mich App 340, 349; 304 NW2d 575 (1981) (the fact that the children may have expressed a
desire to live with the plaintiff is not a sufficient basis upon which to revisit custody). For the
above reasons, the trial court did not abuse its discretion in concluding that defendant failed to
show proper cause or change of circumstances warranting a change of custody.
Defendant claims that the trial court was required to hold an evidentiary hearing before
summarily denying his request for change of custody. We disagree. The plain and ordinary
language of § 27(1)(c) evidences the Legislature’s intent that the statutory best interest factors be
considered only when a party seeking modification of a custody order has demonstrated either
proper cause or a change in circumstances. Rossow, supra at 458. Having failed to make this
preliminary showing, the trial court was not authorized to revisit the prior custody decision by
reconsidering the statutory best interest factors. Id.; see also Dehring v Dehring, 220 Mich App
163, 164-165; 559 NW2d 59 (1996). Because defendant failed to show proper cause or change
of circumstances, the trial court was not required to conduct an evidentiary hearing.
Defendant also claims that the trial court erred by failing to interview the children
regarding their preference, by failing to seek the input of an expert psychologist, and by failing to
address the best interest factors. We disagree. As stated above, because defendant failed to
show proper cause or change of circumstances, the trial court was not required to conduct an
evidentiary hearing. Since the trial court was not required to conduct an evidentiary hearing, it
was also not required to interview the children or seek an expert opinion. Furthermore,
defendant’s claim that the trial court erred in failing to address the best interest factors is without
merit. Since defendant failed to show proper cause or change of circumstances, the trial court
was not authorized to revisit the prior custody decision by reconsidering the statutory best
interest factors. Rossow, supra at 458.
Finally, defendant claims that the trial court erred in applying the “preponderance of the
evidence” standard in determining whether he established proper cause or change of
circumstances. We disagree. “The movant . . . has the burden of proving by a preponderance of
the evidence that either proper cause or a change of circumstances exists before the trial court
-3-
can consider whether an established custodial environment exists (thus establishing the burden of
proof) and conduct a review of the best interest factors.” Vodvarka, supra at 509 (emphasis in
original). The Vodvarka decision has not been overruled, and therefore, defendant’s claim is
without merit.
Defendant’s next issue on appeal is that he is entitled to a remand for a full evidentiary
hearing regarding the “best interests” factors pursuant to Harvey v Harvey, 470 Mich 186; 680
NW2d 835 (2004). Defendant has failed to preserve this issue, as he did not raise it before the
trial court. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Thus, we
will review the issue for a plain error affecting defendant’s substantial rights. Kern v BlethenColuni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
Defendant essentially argues that the trial court in this case never addressed the best
interests factors before deciding custody of his children and that Harvey, supra, requires such
before an entry of a custody award, and thus, he is entitled to a remand. We disagree for two
reasons. First, this issue is not properly before us on appeal, as this issue deals with the improper
entry of the original 2002 custody order. Defendant has only appealed the trial court’s denial of
his petition to change custody, and therefore, we shall not address this issue on appeal, as our
review is limited to issues involving the order appealed from and not the original custody order,
which was never appealed. See MCR 7.101.
Second, even if this issue was properly before us on appeal, Harvey, supra, is
inapplicable to this case. In Harvey, the parties agreed that the friend of the court would
determine the custody of their children and that the circuit court could not review the decision.
Harvey, supra at 187. Based on this agreement, the circuit court entered the friend of the court’s
recommended order awarding the defendant sole custody of the children and denied the
plaintiff’s motion for a hearing on the matter. Id. This Court vacated the circuit court’s order
and remanded the case for a hearing. Id. The Michigan Supreme Court affirmed this Court’s
opinion, holding that “the Child Custody Act requires the circuit court to determine
independently what custodial placement is in the best interests of the children.” Id. The Court
further held that “[a]n initial agreement between the parties cannot relieve the court of its
statutory responsibility to ensure that its adjudication of custody disputes is in a child’s best
interests.” Id. at 188 n 2.
Here, while the parties did agree to submit their case to binding arbitration, there was no
issue regarding whether the arbitrator or the circuit court would decide the children’s best
interests, as in Harvey. In fact, defendant never appealed the original custody award. Defendant
misconstrues Harvey as holding that if the trial court does not address the best interest factors,
than the case shall be remanded for an evidentiary hearing. This is not the holding in Harvey.
Harvey holds that an initial agreement between the parties cannot relieve the court of its statutory
responsibility to ensure that its adjudication of custody disputes is in a child’s best interests.
This holding has no bearing on the order appealed in this case, which is a denial of defendant’s
petition to change custody. Since the statutory best interest factors can only be considered when
a party seeking modification of a custody order has demonstrated either proper cause or a change
in circumstances, Rossow, supra at 458, which defendant has failed to show, the trial court
cannot remand this case for an evidentiary hearing to address the best interest factors.
-4-
Defendant’s final issue on appeal is that the trial court denied him his right of due process
by failing to conduct a full evidentiary hearing pursuant to MCR 3.210(C)(8). Again, defendant
has failed to preserve this issue, as he did not raise it before the trial court. Fast Air, Inc, supra
at 549. Thus, we will review the issue for a plain error affecting defendant’s substantial rights.
Kern, supra at 336.
Defendant argues that he is entitled to an evidentiary hearing under MCR 3.210(C)(8)
because there were contested factual issues in this case. MCR 3.210(C)(8) provides as follows:
In deciding whether an evidentiary hearing is necessary with regard to a
postjudgment motion to change custody, the court must determine, by requiring
an offer of proof or otherwise, whether there are contested factual issues that must
be resolved in order for the court to make an informed decision on the motion.
Here, the trial court did not claim that defendant’s allegations were untrue, but rather,
accepted defendant’s allegations as true and still found that he failed to meet his burden to show
proper cause or a change in circumstances, as the problems defendant alleged existed at the time
the original custody award was entered. The only disputed allegation was regarding the
children’s residential preference, and this allegation alone is not a sufficient basis upon which to
revisit custody. Curlyo, supra at 349. Because there were no contested factual issues that must
have been resolved in order for the court to make an informed decision on the motion, defendant
was not entitled to an evidentiary hearing pursuant to MCR 3.210(C)(8).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Karen M. Fort Hood
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.