TIXKETJE GREENLEE V MICHAEL LASHAWN DAVIS
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STATE OF MICHIGAN
COURT OF APPEALS
TIXKETJE GREENLEE,
UNPUBLISHED
December 11, 2008
Plaintiff-Appellant,
v
No. 285036
Saginaw Circuit Court
LC No. 06-059393-DP
MICHAEL LASHAWN DAVIS,
Defendant-Appellee.
Before: Hoekstra, P.J., and Bandstra and Donofrio, JJ.
PER CURIAM.
In this child custody case, plaintiff appeals as of right the trial court’s order denying her
motion to modify parenting time. Plaintiff also appeals the trial court’s custody order, which
granted defendant parenting time and joint legal custody of the parties’ son. Because we
conclude that the trial court did not commit clear legal error or make factual findings against the
great weight of the evidence, we affirm the custody order. In addition, because we conclude that
the trial court did not abuse its discretion in denying plaintiff a hearing on her motion to modify
parenting time, we affirm the trial court’s order denying the motion.
Following a child custody hearing, the trial court granted the parties joint legal custody of
their son and awarded plaintiff sole physical custody. The trial court awarded defendant
parenting time. This Court must affirm a child custody order unless the trial court made findings
of fact against the great weight of the evidence, committed a palpable abuse of discretion, or
made a clear legal error on a major issue. MCL 722.28; Berger v Berger, 277 Mich App 700,
705; 747 NW2d 336 (2008). A trial court commits clear legal error when it incorrectly chooses,
interprets, or applies the law. Powery v Wells, 278 Mich App 526, 527; 752 NW2d 47 (2008).
Plaintiff first argues on appeal that the trial court committed clear legal error when it
determined that the custody order in the consent judgment of filiation1 was not a valid custody
order for purposes of MCL 722.27, such that it was not required to find proper cause or change
of circumstances before modifying or amending the order. See MCL 722.27(1)(c). We disagree.
1
This custody order granted plaintiff sole legal and physical custody of the parties’ son.
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The trial court held that it could modify or amend the custody order in the consent
judgment of filiation without finding proper cause or change of circumstances because the order
had been inserted into the judgment of filiation by the prosecutor ex parte, without consultation
of the parties. Plaintiff, however, argues that, because MCR 2.612(C) allows a party one year to
seek relief from a judgment, and because defendant did not challenge the custody order for more
than a year after the judgment of filiation was entered, the custody order was a valid order.
Plaintiff’s argument is without merit. First, the argument does not address the trial court’s
reasoning for concluding that it was not required to find proper cause or change of circumstances
before modifying or amending the custody order. Second, MCR 2.612(C) is not applicable to the
present case. The rule provides that a motion for relief from judgment “must be made within a
reasonable time, and, for the grounds stated in subrules (C)(1)(a), (b), and (c), within one year
after the judgment, order, or proceeding was entered or taken.” MCR 2.612(C)(2). Defendant
filed a motion for change of custody, not a motion for relief from judgment. Plaintiff has
provided no authority suggesting that a motion for change of custody is governed by the time
limits in MCR 2.612(C).
Moreover, the trial court did not incorrectly interpret or apply the law when it concluded
that it could modify or amend the custody order in the judgment of filiation without first finding
proper cause or change of circumstances. A custody dispute is to be resolved in the best interest
of the child. Mason v Simmons, 267 Mich App 188, 194-195; 704 NW2d 104 (2005). The best
interest of a child is determined by analyzing the 12 statutory factors set forth in MCL 722.23.
Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001). The trial court must state on the
record its factual findings and conclusions regarding each best interest factor. Treutle v Treutle,
197 Mich App 690, 694; 495 NW2d 836 (1992).
MCL 722.27(1) provides in relevant part:
If a child custody dispute has been submitted to the circuit court as an
original action under this act or has arisen incidentally from another action in the
circuit court or an order or judgment of the circuit court, for the best interests of
the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved . . .
.
***
(c) Modify or amend its previous judgments or orders for proper cause
shown or because of change of circumstances until the child reaches 18 years of
age . . . . 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 first sentence of MCL 722.27(1)(c) only applies to cases in which a party is attempting to
alter or modify a previous custody order, such that the trial court would be required to reconsider
a previous determination of the best interest factors. Thompson v Thompson, 261 Mich App 353,
361; 683 NW2d 250 (2004); Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994).
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In the present case, when the trial court awarded the parties joint legal custody of their
son and granted defendant parenting time, the trial court did not reconsider a previous
determination of the best interest factors. Rather, this custody award resulted from the trial
court’s first consideration of the best interest factors. According to the trial court, the custody
order in the judgment of filiation was placed there by the prosecutor ex parte, without
consultation of the parties. Plaintiff does not contest the trial court’s statement, and nothing in
the record indicates that the trial court, before signing the judgment of filiation, considered the
best interest factors. Thus, the trial court was not required to find proper cause or change of
circumstances before modifying or amending the custody order in the judgment of filiation.2
Plaintiff also argues on appeal that the trial court’s findings on factors a, b, c, d, e, f, j,
and l of the best interest factors, MCL 722.23, are against the great weight of the evidence. We
review the trial court’s findings on the best interest factors under the great weight of the evidence
standard, and we will affirm the findings unless the evidence clearly preponderates in the
opposite direction. Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006). The
trial court’s findings were based on the testimony presented at the custody hearing, and we are
not convinced by plaintiff’s argument that any of the findings are against the great weight of the
evidence. Accordingly, we affirm the trial court’s factual findings as to the best interest factors.
Although plaintiff argues that the trial court’s factual findings as to the best interest
factors are against the great weight of the evidence, plaintiff does not articulate any argument
that the trial court abused its discretion in granting the parties joint legal custody of their son or
in awarding defendant parenting time. Moreover, based on our review of the record, we see no
basis to conclude that the trial court abused its discretion in granting defendant parenting time or
in awarding joint legal custody. We therefore affirm the trial court’s custody order.
Finally, plaintiff argues that the trial court erred when it refused to hear her motion to
modify parenting time, which was based on her allegation that defendant abused the parties’ son
during the son’s first overnight visit with defendant. We disagree.
Before it refused to hear plaintiff’s motion to modify parenting time, the trial court
reviewed a letter from the Department of Human Services, in which a Child Protective Services
(CPS) employee summarized CPS’s investigation of a complaint alleging physical abuse of the
parties’ son and its findings following a separate welfare check of the child. The CPS employee
informed the trial court that CPS found no evidence of the son being abused. The employee
stated that the child “was happy, healthy and very active with no injuries.” Based on this letter,
written by a neutral third-party, the trial court did not abuse its discretion in refusing to grant
plaintiff a hearing on her motion to modify parenting time.
2
Because we conclude that the trial court did not commit clear legal error in concluding that it
could modify or amend the custody order in the judgment of filiation without finding proper
cause or change of circumstances, we decline to address whether the trial court abused its
discretion in determining that, in fact, proper cause or change of circumstances did exist.
-3-
Affirmed.
/s/ Joel P. Hoekstra
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
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