STEVEN ROY LOOMIS V BETTY JOANN BLUMERICH
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STATE OF MICHIGAN
COURT OF APPEALS
STEVEN ROY LOOMIS,
UNPUBLISHED
November 17, 2009
Plaintiff-Appellant,
v
No. 291446
Shiawassee Circuit Court
Family Division
LC No. 94-004504-DM
BETTY JOANN BLUMERICH,
Defendant-Appellee.
Before: Talbot, P.J., and Wilder and M.J. Kelly, JJ.
PER CURIAM.
Plaintiff appeals as of right an order denying his motion for a change in custody. We
reverse.
Plaintiff first argues that the trial court erred in finding that there was an established
custodial environment with defendant. We disagree.
We review a trial court’s findings regarding the existence of an established custodial
environment under the great weight of the evidence standard, and will affirm the trial court’s
determination unless the evidence clearly preponderates in the opposite direction. Berger v
Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008), citing MCL 722.28.
The Child Custody Act, MCL 722.21 et seq., governs child custody disputes. The act is
intended to promote the best interests of children. Berger, supra at 705, citing MCL 722.26(1),
and provides for modification of a custody order on proper cause shown or a change of
circumstances. MCL 722.27(1)(c); Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363
(2001). If the movant does not establish proper cause or change in circumstances, then the court
is precluded from holding a child custody hearing. Vodvarka v Grasmeyer, 259 Mich App 499,
508; 675 NW2d 847 (2003).1 If a child custody hearing is warranted, a trial court must
1
In this case, the trial court determined that plaintiff had succeeded in showing that there were
changes in circumstance, and thus cause for concern, so he allowed the custody hearing to
proceed.
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“determine the appropriate burden of proof to place on the party seeking the change. To discern
the proper burden, the trial court’s initial inquiry is whether an established custodial environment
exists.” Foskett, supra at 5, quoting MCL 722.27(1)(c). Under MCL 722.27(1)(c):
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. [Id., quoting MCL 722.27(1)(c).]
Moreover, “[a]n established custodial environment is one of significant duration in which a
parent provides care, discipline, love, guidance, and attention that is appropriate to the age and
individual needs of the child. It is both a physical and a psychological environment that fosters a
relationship between custodian and child and is marked by security, stability, and permanence.”
Berger, supra at 706. If the trial court finds that an established custodial environment exists,
then the trial court can change custody only if the party bearing the burden presents clear and
convincing evidence that the change serves the best interests of the child. Foskett, supra at 6-7.
But if the court finds that no established custodial environment exists, then the court may change
custody if the party bearing the burden proves by a preponderance of the evidence that the
change serves the child’s best interests. Id.
The evidence supported the trial court’s finding that an established custodial environment
existed between the child, Cody, and defendant.
Defendant had had primary physical custody of Cody since 1995, when he was less than
two years old. The evidence demonstrated that Cody loved both his mom and dad and did not
have a negative image of either parent. There was no indication that defendant did not care for
Cody. She took Cody to doctor and dentist appointments, researched payment plans for braces
for him, stayed in contact with Cody’s teachers and school counselors, sat with Cody while he
did homework, found him a mentor to help with one class, and kept her home clean, warm, and
refurbished.
The problems Cody experienced in school were relatively recent, having had good grades
until the eighth grade school year (2007-2008), around the time that defendant lost her home to
foreclosure and separated from her husband, Timothy Blumerich. Cody finished his eighth grade
year with a low grade point average, and was doing poorly in ninth grade academically. Plaintiff
testified that Cody asked him to request a change in custody. While these are serious concerns
and new developments that justified consideration of plaintiff’s request for a change in custody,2
Cody’s bad grades and defendant’s marital problems do not demonstrate that there was not an
2
“To 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. 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. When a movant has demonstrated such proper cause, the trial court can then
(continued…)
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established custodial environment. Therefore, the trial court did not err in finding that an
established custodial environment existed with defendant.
Plaintiff next argues that the trial court’s conclusion that factors (b), (c), (h), and (l) were
equal was against the great weight of the evidence, and therefore, the court’s ultimate holding
denying plaintiff’s motion to change custody was an abuse of discretion. We agree.
A trial court’s findings regarding each best interests factor are reviewed under the great
weight of the evidence standard. McIntosh v McIntosh, 282 Mich App 471, 475; 768 NW2d 325
(2009). The trial court’s ultimate custody decision is reviewed for an abuse of discretion. Id.
An abuse of discretion is a ruling falling outside the realm of reasonable outcomes. In re Kostin
Estate, 278 Mich App 47, 51; 748 NW2d 583 (2008).
The purposes of the Child Custody Act are to promote the best interests of the child, and
to provide a stable environment for him or her, free of unwarranted custody changes. MCL
722.26(1). A court must consider, evaluate, and determine each of the statutory best interests
factors. Sinicropi v Mazurek, 273 Mich App 149, 182; 729 NW2d 256 (2006). A court need not
give equal weight to all the factors, but may instead consider their relative weight. Id. at 184.
The factors are:
(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 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.
(…continued)
engage in a reevaluation of the statutory best interest factors.” Corporan v Henton, 282 Mich
App 599, 604; 766 NW2d 903 (2009). Here, the sudden drop in Cody’s grades implicates MCL
722.23(h), factor addressing the home, school, and community record of the child.
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(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.]
The finder of fact must state his or her factual findings and conclusions under each factor.
MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 451-452; 705 NW2d 144 (2005).
Plaintiff agrees with the trial court that the parties are equal with regard to factors (a), (f),
(j), (g) and (k). Plaintiff further agrees with the trial court that factors (e) and (i) favor plaintiff.
Finally, plaintiff does not dispute that factor (d) favors defendant. But plaintiff argues that the
trial court’s determination that the remaining factors are equal is against the great weight of the
evidence.
With respect to factor (b), regarding the education and raising of the child in his religion,
plaintiff contends that this factor should favor him, because his family regularly attends the
Seventh Day Adventist Church, and his children attend a Seventh Day Adventist school, while
defendant claimed merely to be a regular attendee of “a Baptist Church.” This argument lacks
merit. Although it was clear from the testimony that plaintiff and his family were devout
Seventh Day Adventists, no claim was made, nor does the record indicate, that the parties agreed
to raise Cody strictly in that religion. The evidence shows that Cody was being schooled in two
Christian faiths: Cody attends the Seventh Day Adventist church when plaintiff has parenting
time, and while he in defendant’s care, Cody attends a Baptist church. However suspect it might
have been for defendant not to remember the actual name of her church, it was the province of
the trial court to find this testimony credible. McIntosh, supra at 474. Therefore, the parties are
equal in regard to the religion aspect of factor (b).
However, the guidance element of factor (b) favors plaintiff. When addressing guidance,
this Court tends to examine a party’s inclination to implement discipline and rules. See
MacIntyre, supra at 454; Fletcher v Fletcher, 229 Mich App 19; 581 NW2d 11 (1998). In the
case at bar, there was little testimony regarding discipline, but both plaintiff and the court
addressed Cody’s poor grades when discussing this factor.
As discussed above, the evidence presented at trial revealed that Cody did well in school
until the eighth grade, when his grade point average dropped precipitously. This downturn in
school achievement coincided with defendant’s separation from Blumerich and a foreclosure on
their home. Defendant did testify regarding the steps she was taking to make sure that Cody
completed his homework assignments and improved his grades, which involved staying in
constant contact with Cody’s teachers, receiving regular progress reports, and sitting with Cody
while he did his homework. But at the time of trial, Cody’s academic performance was still
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quite poor. Cody himself told the psychological evaluator that his bad grades were attributable
to the stress caused by the presence of his maternal grandmother in defendant’s home. By
contrast, Cody found plaintiff’s home to be less stressful.
Moreover, although defendant initially testified that she got Cody a tutor to help with his
classes, when further questioned by the trial court on this point, she explained that the “tutor”
was really a mentor, who was a 12th grade student. Thus defendant’s judgment in relying on a
student mentor to assist Cody with his failing grades reflects poorly on defendant’s capacity to
provide guidance for Cody, and the testimony did not show that defendant, the parent with
primary physical custody had been able to successfully guide Cody in this area. For these
reasons, the trial court’s finding that the parties were equal on factor (b) is against the great
weight of the evidence.
Plaintiff next disputes the trial court’s finding of equality for factor (c). Plaintiff argues
that the testimony demonstrated that defendant’s home was experiencing serious financial
distress, and therefore, the trial court’s findings were against the great weight of the evidence.
We agree.
There is no evidence that Cody lacked basic material needs. Moreover, aside from the
one incident where defendant failed to take Cody to get his stitches removed, defendant, as the
parent with primary physical custody, regularly took Cody to his doctor and dentist
appointments, while plaintiff would take Cody to the doctor during his parenting time if Cody
was sick, or there was an emergency. But there is a stark disparity between the parties’ abilities
to provide for Cody materially, going forward.
Defendant and Blumerich, both unemployed, had recently lost their home to foreclosure,
and were living in a three-bedroom trailer home with four children. Defendant asserted that
Cody had his own room, her two other sons shared a room, and her daughter slept either on the
couch or with her. When defendant’s mother-in-law came to spend the night, she allegedly slept
on a chair. Plaintiff, on the other hand, had been employed in law enforcement for 15 years. His
wife, Shannon Loomis, had a job at a medical office. The couple was current with the mortgage
on their home, where each child had his or her own room.
Factor (c) does not contemplate which party earns more money; it is intended to evaluate
the parties’ capacity and disposition to provide for the children’s material and medical needs.
Berger, supra at 712. This factor looks to the future, not to which party earned more money at
the time of trial, or which party historically has been the family’s main source of income. Id.
But here, the only work history defendant had was a three-month temporary position with
General Motors, and she had no apparent plans to look for employment. She testified that
Blumerich, her estranged husband, paid her bills, although, at the time of trial, he had been laidoff from his job too. Defendant also depends on child support from plaintiff and the father of
one of her other children. But that other father was delinquent in his payments.
Child support payments can be considered income. See LaFleche v Ybarra, 242 Mich
App 692, 701; 619 NW2d 738 (2000). But in a case where the plaintiff mother similarly had no
job and depended on others, including government, for support, this Court upheld the trial
court’s finding that factor (c) favored the defendant father, who “had enjoyed stable employment
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for nine years,” and so concluded, even though the plaintiff mother was working on an
associate’s degree as a medical assistant. Hilliard v Schmidt, 231 Mich App 316, 323; 586
NW2d 263 (1998), abrogated on other grounds by Molloy v Molloy, 247 Mich App 348; 637
NW2d 803 (2001), aff’d in part, vac’d in part 466 Mich 852 (2002). Given the foregoing
evidence, the great weight of the evidence shows that plaintiff is better able to provide for
Cody’s material needs, going forward.
Plaintiff next argues that the trial court erred in finding equality with regard to factor (h).
Plaintiff argues that Cody’s academic problems coincided with instability in defendant’s
household, and that defendant, as the custodial parent, was responsible for ensuring Cody’s daily
attendance at school, and had the duty to verify completed homework. We agree.
There was no testimony indicating that plaintiff had tried doing anything more proactive
than defendant with regard to homework. But when plaintiff had parenting time, he would set
aside time for Cody to read.
Defendant is the parent with the day-to-day responsibility for Cody, and the disruptions
in defendant’s home coincided with the sudden, precipitous and prolonged drop in Cody’s
grades. As noted above, Cody himself told the psychological evaluator that he attributed his bad
grades to the stress he felt in defendant’s house. In MacIntyre, this Court found that the trial
court’s determination that factor (h) favored the plaintiff father was consistent with record
evidence because “the child’s grades and behavior at school declined following an incident in
which [the] defendant [mother] rearranged his room and damaged his belongings after he and
[the] plaintiff worked together to clean the room. As a result, the child began sleeping on the
couch . . . .” MacIntyre, supra at 458. The foreclosure on defendant’s former home, resulting in
cramped quarters in their current mobile home, and the psychological stress afflicting Cody in
that home, are very serious, and for these and all of the other reasons discussed above in regard
to factor (b), the trial court’s findings for factor (h) are against the great weight of the evidence.
Finally, factor (l), a catch-all, is designed to take into consideration other relevant factors.
See generally Ireland v Smith, 451 Mich 457, 464 n 7; 547 NW2d 686 (1996). Plaintiff argues
that the trip defendant took in 2007, during which she did not contact Cody, is further indication
of instability in defendant’s home. We agree.
That defendant left town and did not call home for several days is troubling, as was the
fact that she did not ask plaintiff to look after Cody during that time. We further find that
defendant’s (as well as Blumerich’s) testimony regarding the trip – and many other issues – was
incoherent and inconsistent at best. In MacIntyre, though addressing a different factor, this
Court supported a trial court’s decision in favor of the plaintiff father and took into consideration
the defendant mother’s “evasive testimony.” MacIntyre, supra at 455. For these reasons, the
trial court’s failure to find that factor (l) favors plaintiff is against the great weight of the
evidence.
For the foregoing reasons, we conclude that the trial court’s findings for factors (b), (c),
(h) and (l) are against the great weight of the evidence. Accordingly, because the evidence
clearly showed changed circumstances, and because the child’s best interests clearly favored
giving plaintiff custody, the trial court abused its discretion in denying plaintiff’s motion to
change custody.
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Reversed. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
/s/ Michael J. Kelly
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