WENDI SUE CARPENTER V ERIC BLANCHARD CARPENTER
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STATE OF MICHIGAN
COURT OF APPEALS
WENDI SUE CARPENTER,
UNPUBLISHED
November 16, 2010
Plaintiff-Appellant,
v
No. 296924
Ottawa Circuit Court
LC No. 09-063448-DC
ERIC BLANCHARD CARPENTER,
Defendant-Appellee.
Before: M. J. KELLY, P.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
This appeal involves an interstate child custody dispute under the Uniform Child-Custody
Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. Following a bench trial,
the trial court determined that an established custodial environment did not exist with either
party. The court awarded the parties joint legal custody of their two minor children, but awarded
sole physical custody to defendant, who lives in Colorado. The court awarded plaintiff, who
lives in Michigan, extended parenting time with the children during the summer, two weeks in
October, the children’s entire Christmas break, and alternating spring breaks, as well as
“reasonable access” to the children by telephone or electronic means while the children were in
defendant’s care. Plaintiff appeals as of right, challenging the trial court’s award of sole physical
custody to defendant and the parenting time order. Because there were no errors warranting
relief, we affirm the trial court’s custody and parenting time decisions. However, we remand this
case for the limited purpose of providing specific terms for the award of “reasonable access” to
the children by telephone or electronic means.
We must affirm a trial court’s custody and parenting time orders unless the trial court
“made findings of fact against the great weight of the evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue.” MCL 722.28; see also Berger v Berger, 277
Mich App 700, 705; 747 NW2d 336 (2008). Under the great weight of the evidence standard,
we must affirm the court’s factual findings unless the evidence clearly preponderates in the
opposite direction. Fletcher v Fletcher, 447 Mich 871, 879; 526 NW2d 889 (1994). In
examining the evidence, this Court will defer to the trial court’s credibility determinations.
Berger, 277 Mich App at 705. The palpable abuse of discretion standard applies to the trial
court’s custody or parenting time award. Id. at 705. A court abuses its discretion under this
standard when its decision is “so palpably and grossly violative of fact and logic that it evidences
a perversity of will, a defiance of judgment, or the exercise of passion or bias.” Id. at 705. Clear
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legal error occurs when a trial court “incorrectly chooses, interprets, or applies the law.” Id. at
706.
Plaintiff first argues that the trial court erred when it found that neither party had
established a custodial environment with the children. Specifically, she argues that the evidence
established that she had an established custodial environment.
The determination whether an established custodial environment exists is the first step in
resolving a custody dispute because it governs the burden of proof. If a child has an established
custodial environment, that environment may not be changed absent a showing by clear and
convincing evidence that a change is in the child’s best interests. MCL 722.27(1)(c).
Conversely, if an established custodial environment does not exist, a preponderance of the
evidence standard governs the trial court’s custody decision. Baker v Baker, 411 Mich 567, 579;
309 NW2d 532 (1981).
An 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. . . .
A custodial
environment can be established as a result of a temporary custody order, in
violation of a custody order, or in the absence of a custody order. An established
custodial environment may exist with both parents where a child looks to both the
mother and the father for guidance, discipline, the necessities of life, and parental
comfort. [Berger, 277 Mich App at 706-707 (citations omitted).]
Whether there is an established custodial environment is a question of fact. Id. at 706.
In this case, the record supports the trial court’s finding that, historically, the children had
an established custodial environment with both parties, but that their situation changed when
plaintiff left the family home in Colorado and returned to Michigan with the children in
December 2008. Although plaintiff primarily had physical custody of the children after this
move, there was evidence that their physical environment became unstable because of changes in
the parties’ parenting time, which included significant parenting time with defendant in Colorado
in the summer of 2009, and substantial additional time toward the end of December 2009. There
was also evidence that plaintiff attempted to psychologically and spiritually manipulate the
children after she left Colorado by sharing claimed prophesies or visions with them in a manner
that tended to damage their view of defendant.1 There was also evidence that the children were
thrust into situations affecting their psychological stability, such as being taken by plaintiff to a
1
The record indicates that the trial court considered the merits of plaintiff’s professed spiritual
gift of prophesy or visions with neutrality, consistent with Fisher v Fisher, 118 Mich App 227,
234; 324 NW2d 582 (1982). The court determined that plaintiff’s “prophetic words” were
contrary to her previously-held convictions and more consistent with an attempt to justify her
actions.
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safe house for abused women and children in October 2009, without justification. The trial court
accepted the testimony of Steven DeGroot, a psychologist hired by plaintiff to counsel the
children after defendant’s extended parenting item ended in the summer of 2009, that the
children’s emotional state was deteriorating due to the polarizing effects of the custody dispute,
but the court concluded that plaintiff was more at fault for the polarization. Giving deference to
the trial court’s superior opportunity to evaluate the credibility of plaintiff and other witnesses,
the trial court’s findings are not against the great weight of the evidence. Berger, 277 Mich App
at 705.
Although the trial court did not comment specifically on the children’s journals when
evaluating whether an established custodial environment existed, it recognized that the children
had made negative comments about defendant. Its inference from the evidence that plaintiff had
manipulated the children and, specifically, that the children temporarily acquiesced to plaintiff’s
attempt to demonize defendant, is consistent with the journals. In any event, the trial court was
not required to comment on each item of evidence. McIntosh v McIntosh, 282 Mich App 471,
474; 768 NW2d 325 (2009). Considering all of the evidence, the trial court’s finding that the
instability created by the custody dispute precluded either party from establishing a custodial
environment marked by qualities of security, stability, and permanence is not against the great
weight of the evidence.2 See Curless v Curless, 137 Mich App 673, 676-677; 357 NW2d 921
(1984); see also Berger, 277 Mich App at 706.
Plaintiff next challenges the trial court’s findings regarding six of the statutory best
interest factors stated under MCL 722.23. We review these findings under the great weight of
the evidence standard. Berger, 277 Mich App at 705.
Plaintiff first challenges the trial court’s finding that factor (b) strongly favors defendant.
Factor (b) is “[t]he 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.” MCL 722.23(b). The trial court found that this factor favored
defendant primarily because of his greater capacity to provide proper guidance for the children.
However, the trial court also questioned plaintiff’s ability to educate and raise the children in
their religion or creed in light of testimony that plaintiff’s claimed prophesies were not in accord
with scripture. The court gave weight to evidence that plaintiff either lacked a moral compass to
be truthful or the ability to distinguish fact from fiction.
The trial court found that several incidents supported its determination that plaintiff’s
inability to tell or discern the truth undermined her ability to guide the children as they developed
and grew older. It found no guidance concerns with defendant. We disagree with plaintiff that
2
Although we find no error in the trial court’s determination that an established custodial
environment did not exist with either party, we note that the trial court also stated that even if an
established custodial environment existed only with plaintiff, clear and convincing evidence
supported its decision to award sole physical custody of the children to defendant. Thus, the
determination whether an established custodial environment existed did not effect the trial
court’s ultimate custody decision.
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defendant’s limitations on the children’s cell phone use, or the circumstances of the parenting
time dispute in August 2009, establishes any error in the trial court’s assessment of factor (b).
Giving appropriate deference to the trial court’s credibility determinations, the evidence does not
clearly preponderate against the court’s conclusion that factor (b) strongly favors defendant.
Plaintiff next challenges the trial court’s finding that factor (d) favors defendant. Factor
(d) is “[t]he length of time the child has lived in a stable, satisfactory environment, and the
desirability of maintaining continuity.” MCL 722.23(d). This factor “calls for a factual inquiry
(how long has the child been in a stable, satisfactory environment?) and then states a value (‘the
desirability of maintaining continuity’).” Ireland v Smith, 451 Mich 457, 465 n 8; 547 NW2d
686 (1996). The stability of a child’s home may be undermined in various ways; these include
frequent moves, a succession of persons residing in the home, live-in romantic companions, or
other potential disruptions. Id. at 465 n 9. Here, in making its determination, the trial court
relied on plaintiff’s conduct in changing churches after returning to Michigan, the fact that the
children had to re-enroll in school after returning to Michigan, plaintiff’s introduction of the
children to her new boyfriend in the midst of the custody dispute, the turmoil that the children
experienced because of plaintiff’s inappropriate actions, such as plaintiff’s unnecessary flight to
a safe house and her emotional and spiritual pressure. Conversely, the court found that
defendant’s home environment was emotionally stable. Again, giving appropriate deference to
the trial court’s credibility determinations, we are not persuaded that the evidence clearly
preponderates against the trial court’s findings or decision to score factor (d) in favor of
defendant.
We next consider plaintiff’s challenge to the trial court’s finding that factor (j) strongly
favors defendant. Factor (j) is the “[t]he 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.” MCL 722.23(j). Plaintiff argues that the trial court should
have found that factor (j) did not favor either party, because of the contentious nature of the
proceedings. We conclude, however, that plaintiff has not established anything about the
parenting time dispute that arose in August 2009, or other circumstances that would preclude the
trial court from finding that defendant promoted her relationship with the children. Indeed, there
was evidence that the August 2009 dispute did not prevent plaintiff from ultimately receiving her
parenting time with the children. She was also permitted to attend a birthday party for one child
in Colorado that defendant had arranged. Conversely, the trial court could reasonably find from
the evidence that plaintiff had engaged in a campaign to damage the children’s relationship with
defendant and drive him from their lives. The evidence does not clearly preponderate against the
trial court’s finding that factor (j) strongly favors defendant.
Plaintiff also challenges the trial court’s finding that the “moral fitness” factor, MCL
722.23(f), favors defendant. The moral fitness factor, like other statutory factors, must relate to
parental fitness. Fletcher, 447 Mich at 886-887. The material question concerns “the parties’
relative fitness to provide for their child, given the moral disposition of each party as
demonstrated by individual conduct.” Id. at 887. The type of morally questionable conduct
relevant to this factor includes “verbal abuse, drinking problems, driving record, physical or
sexual abuse of children, and other illegal or offensive behaviors” Id. at 887 n 6.
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We note that, contrary to plaintiff’s testimony at trial that defendant was abusive toward
her, which the trial court found was not credible, plaintiff argues on appeal that both parties are
good and faithful people, who should have been weighed equally with respect to moral fitness.
The trial court weighed this factor in favor of defendant based on its determination that plaintiff
lacked credibility and was willing to use any means necessary to undermine defendant’s
relationship with the children. Although these were considerations in the trial court’s analysis of
best interest factors (b) and (j), there is some natural overlap between best interests factors.
Fletcher v Fletcher, 229 Mich App 19, 25; 581 NW2d 11 (1998). Therefore, it was appropriate
for the trial court to weigh this factor in favor of defendant without expounding on the problems
that it identified with plaintiff’s lack of truthfulness and other conduct in its assessment of factors
(b) and (j). And considering that the concerns identified in the court’s analysis of factors (b) and
(j) also impact plaintiff’s moral fitness, the evidence does not clearly preponderate against the
trial court’s finding that factor (f) favors defendant.
The next factor challenged by plaintiff is “[t]he home, school, and community record of
the child.” MCL 722.23(h). The trial court weighed the parties equally with respect to this
factor, but gave defendant a slight advantage because plaintiff was responsible for the children’s
excessive absences from school after September 2009. It found that school absences were not a
problem when the children were part of an intact family unit. Considering the evidence that the
absences continued, even after a truancy officer became involved, and plaintiff’s failure to
demonstrate that medical documentation supported the children’s repeated absences, most of
which occurred on the same day, we are not persuaded that the evidence clearly preponderates
against the trial court’s finding that factor (h) slightly favors defendant.
Lastly, plaintiff has not established any factual or legal error by the trial court with
respect to factor (l), which is “[a]ny other factor considered by the court to be relevant to a
particular child custody dispute.” MCL 722.23(l). Factor (l) is a catch-all provision. Ireland,
451 Mich at 464 n 7. It is appropriate for a trial court to use this factor to comment on various
matters or arguments raised at trial, without expressly weighing it in favor of either party.
McIntosh, 282 Mich App at 482-483. Here, the trial court did not weigh this factor in favor of
either party, but rather used it to comment on the lack of evidence to “suggest” that a “split”
custody arrangement would be proper and that “[p]laintiff’s attempts to dislodge Defendant from
the children’s lives have been adequately addressed in prior factors.” In its analysis of the best
interest factors, the court ultimately treated factor (l), like the domestic violence factor in MCL
722.23(k), as a factor that did not apply to the case. Plaintiff has not identified any missing
relevant factor that should have been weighed separately under factor (l). Thus, she has not
shown either a clear legal error or that the “great weight of the evidence” clearly preponderates
against the trial court’s assessment of factor (l). Berger, 277 Mich App at 705-706.
To the extent that the substance of plaintiff’s argument is directed at how the trial court
ultimately applied the various best interests factors, including the children’s reasonable
preferences under MCL 722.23(i), to award sole physical custody to defendant, we review the
trial court’s ultimate custody decision for a palpable abuse of discretion. Berger, 277 Mich App
at 705. A child’s reasonable preference under MCL 722.23(i) is only one factor to be evaluated
in determining the child’s best interests. Treutle v Treutle, 197 Mich App 690, 694-695; 495
NW2d 836 (1992). Further, a trial court need not give equal weight to each factor. McCain v
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McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). The overriding concern is the child’s
best interests. Fletcher, 229 Mich App at 28.
Here, plaintiff has not established any error in the trial court’s best interest findings.
Based on those findings, the trial court’s decision to award sole physical custody of the children
to defendant was not a palpable abuse of discretion, even under a higher clear and convincing
evidence standard. Accordingly, we must affirm the trial court’s custody decision. MCL
722.28.
Plaintiff next argues that the trial court erred by failing to award her sufficient parenting
time to promote a continuation of the relationship that she had with the children. MCL 722.27a
governs the trial court’s award of “reasonable parenting time.” See Pickering v Pickering, 268
Mich App 1, 5; 706 NW2d 835 (2005). MCL 722.27a(1) requires that parenting time be
awarded in accordance with the child’s best interests and “in a frequency, duration, and type
reasonably calculated to promote a strong relationship between the child and the parent granted
parenting time.” MCL 722.27a(6) lists several factors for a court to consider in awarding
parenting time, but the overriding consideration is the child’s best interests. Deal v Deal, 197
Mich App 739, 741-742; 496 NW2d 403 (1993).
Rather than award plaintiff monthly parenting time, the trial court awarded her extended
blocks of parenting time consistent with the children’s school schedule. Additional parenting
time was permitted as the parties agreed. Plaintiff was also awarded “reasonable access” to the
children by telephone or electronic means while they were in defendant’s care. We find no
palpable abuse of discretion in the parenting time schedule. The blocks of parenting time for
summer and other school breaks, combined with plaintiff’s reasonable access to the children by
telephone or electronic means, fosters the children’s best interests. Plaintiff was awarded
parenting time in “a frequency, duration, and type reasonably calculated to promote a strong
relationship between the child and the parent granted parenting time.” MCL 722.27a(1). As
whole, it is reasonable under the circumstances of the case.
We agree with plaintiff, however, that the trial court erred when it refused her request for
specificity of the ordered “reasonable access” by telephone or electronic means. A trial court
may craft a parenting time schedule with sufficient flexibility to accommodate the schedules of
the parties and the children. See Pickering, 268 Mich App at 6. But MCL 722.27a(7) provides
that “[p]arenting time shall be granted in specific terms if requested by either party at any time.”
“Specific” means “[e]xplicitly set forth; particular; definite.” Pickering, 268 Mich App at 6,
quoting American Heritage Dictionary, Second College Edition (1982).
In this case, although the trial court expressed a preference to see “how this thing shakes
out” before attempting to craft a specific schedule of each party’s telephone contact, because a
request for specific terms of parenting time may be made at any time, and because the telephone
and electronic access to the children was a material aspect of the parenting time order, the trial
court committed a clear legal error on a major issue by declining plaintiff’s request to establish
specific terms for the award of “reasonable access.” MCL 722.28. However, we disagree with
plaintiff’s additional claim that the trial court committed clear legal error by not specifying more
regular time for the children to be placed in her care during the school year. A request for more
parenting time is not a request for specific parenting time. Therefore, we affirm the trial court’s
parenting time order, but remand this case to the trial court for the limited purpose of providing
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specific terms for the “reasonable access” by telephone or electronic means. The trial court may
consider updated information and conduct any additional hearings or other proceedings it deems
necessary to properly make this determination. Ireland, 451 Mich at 468-469.
Affirmed, but remanded for further proceedings concerning the parenting time award of
“reasonable access” by telephone or electronic means in accordance with this opinion. We do
not retain jurisdiction. Neither party having prevailed in full, neither party may tax costs. MCR
7.219(A).
/s/ Michael J. Kelly
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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