BAMBI LYNN DIBELL V TY MATTHEW KIRBY
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STATE OF MICHIGAN
COURT OF APPEALS
BAMBI LYNN DIBELL,
UNPUBLISHED
December 28, 2010
Plaintiff-Appellee,
v
No. 297205
Montcalm Circuit Court
LC No. 2004-002666-DP
TY MATTHEW KIRBY,
Defendant-Appellant.
Before: BECKERING, P.J., and TALBOT and OWENS, JJ.
PER CURIAM.
Defendant Ty Matthew Kirby appeals as of right the trial court’s order denying his
motion for a change of custody. We affirm.
I. UNDERLYING FACTS
The minor child in this case was born on November 25, 2003. The child has lived with
plaintiff Bambi Lynn Dibbell for her entire life. Defendant originally disputed that he was the
father and moved to North Dakota in July 2004. Plaintiff moved to Arkansas with the minor
child shortly thereafter with the permission of the court. By all reports, the minor child is happy,
well adjusted, and generally healthy. She had nothing bad to say about defendant, but reported
that she misses plaintiff when she goes to visit him.
Defendant has not seen the minor child very frequently. This is partly because he has not
always exercised his parenting time, and partly because on at least one occasion plaintiff refused
to let defendant see the child. The trial court cited plaintiff for contempt in 2007 for refusing to
allow defendant’s parenting time. Plaintiff and defendant do not get along very well. The record
contains evidence of numerous arguments between them, and each has reported the other to child
protective services (CPS).
Defendant is married and has two children with his wife. One of the children has
substantial medical needs stemming from epilepsy, eczema, and scoliosis. Defendant and his
wife were both convicted of writing bad checks in 2006, and were also convicted of a felony
charge of theft of property by deception in 2008. They stole cash, gas, and lottery tickets from
the gas station where defendant’s wife was employed at the time. Their stated reason for
committing these crimes was that they needed money for the medical bills caused by their child’s
illnesses. Defendant and his wife each have seasonal employment, though defendant is working
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on getting a commercial driver’s license so that he can work year round. Defendant is not up-todate with his child support payments, but he has made payments when he has been able to do so.
On at least one occasion, defendant and his wife left their children (then 20 months and
3½ years old) at home alone. Defendant and his wife worked different shifts, and defendant was
unable to get home before his wife left. The local CPS agency found that defendant and his wife
were an “intermediate” risk of child neglect, and also expressed concerns about defendant’s
alcohol consumption.
On June 15, 2009, plaintiff remarried. Plaintiff, her new husband, and the minor child
moved back to Michigan in 2009. Plaintiff and the minor child have changed residences
frequently in the last few years, within both Arkansas and Michigan.
Plaintiff and her husband are both currently unemployed, but are looking for work.
Plaintiff and the minor child live with defendant’s mother and stepfather, while plaintiff’s
husband lives with his father. Plaintiff is attending community college, and hopes to finish her
bachelor’s degree in social work at Central Michigan University. She pays for college with a
combination of grants and student loans. Plaintiff relies on government assistance to pay for the
minor child’s medical needs, which include allergy treatments.
Approximately nine years before plaintiff and her now-husband married, a juvenile court
found the husband guilty of first-degree criminal sexual conduct involving a minor under the age
of 13 for engaging in oral sex with a seven-year-old boy. The husband was age 14 or 15 at the
time. The husband was also alleged to have digitally penetrated the victim’s anus.1
Plaintiff’s husband’s probation officer reported that he did well during his rehabilitation,
received extensive treatment, and no longer poses a significant threat of reoffending. The trial
court ordered an expert evaluation of the husband, and the expert concluded that there is a low to
moderate risk that he will reoffend, with the risk additionally reduced because he was a juvenile
at the time of the offense and because he has been out of supervision for an extended period of
time already without reoffending. The expert also reported allegations by the husband that he
had been sexually abused by defendant as a child.2
Plaintiff testified that she has never seen any indication that her husband has abused the
minor child. Plaintiff was a victim of sexual abuse herself when she was younger, and stated that
she is especially aware of the signs of abuse. There is no allegation that her husband has harmed
the minor child in any way. Additionally, plaintiff stated to the Friend of the Court investigator
that her husband has not had any unsupervised contact with the child.
1
During a psychological evaluation, the husband denied penetrating the victim. It is not clear
from the record if he was specifically convicted of penetration, but he admitted engaging in oral
sex and touching the victim near the anus.
2
Plaintiff’s husband and defendant are cousins.
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The Friend of the Court investigator recommended that custody be granted to defendant.
The case was originally heard by a referee, who agreed with the recommendation of the
investigator. Plaintiff demanded a de novo review by the trial court. The trial court held a de
novo hearing on October 16, 2009, wherein it ordered a sex offender evaluation of plaintiff’s
husband. Upon receipt of the evaluation, the trial court continued the de novo hearing on March
5, 2010. On March 8, 2010, the trial court issued a five-page written opinion wherein it found
that: a change of circumstances, which is required to re-visit custody, existed; an established
custodial environment existed with plaintiff; and based on the court’s de novo review of the
record, defendant failed to establish by clear and convincing evidence that custody in his favor
was in the best interests of the child. In its March 19, 2010, order the court ordered that plaintiff
shall have physical custody of the minor child, that plaintiff’s husband shall not have any
unsupervised contact with the minor child, and that defendant submit to a sex offender risk
assessment as a condition to any unsupervised contact with the minor child—based presumably
on plaintiff’s husband’s allegations of sexual abuse by defendant.
II. THE EXPERT’S REPORT
Defendant first argues that the trial court erred by admitting the expert evaluation
regarding plaintiff’s husband without allowing defendant an opportunity to examine the report or
question the expert. However, defendant was represented by counsel at the hearing where the
report was admitted, and his counsel stated that he had reviewed the report and would defer to
the court regarding the expert’s credentials, as the court had appointed the expert. Since
defendant did not object to the report below, he has either waived or forfeited this issue. Roberts
v Mecosta Co Gen Hosp, 466 Mich 57, 69; 642 NW2d 663 (2002). Waiver requires an
“intentional and voluntary relinquishment of a known right,” whereas forfeiture merely involves
a “failure to assert a right in a timely fashion.” Id. (quotation marks and citation omitted).
Assuming that defendant merely forfeited the issue, we review for plain error. “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights” or showed prejudice in the lower court proceedings. People v Carines, 460 Mich 750,
763; 597 NW2d 130 (1999).
We find no plain error in this case. On appeal, defendant’s only grounds for finding this
evidence inadmissible are that he did not get a chance to review the evidence or question the
expert. But defendant’s counsel reviewed the proffered evidence and made no objection, and did
not seek to question the witness. Moreover, defendant cites no authority under which the
evidence would be inadmissible. An appellant may not simply announce his position and leave
the task of supporting that position to the court. VanderWerp v Plainfield Charter Twp, 278
Mich App 624, 633; 752 NW2d 479 (2008). Defendant’s failure to provide any support for his
position constitutes abandonment of the argument. See id. The trial court did not err by
admitting the expert report.
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III. CUSTODY DECISION
Defendant next argues that the trial court abused its discretion by refusing to grant his
motion for a change in custody. We must affirm a custody order “unless the trial court’s findings
of fact were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue.” Berger v Berger, 277 Mich
App 700, 705; 747 NW2d 336 (2008).
The trial court’s factual findings regarding an established custodial environment and the
statutory best interest factors are against the great weight of the evidence if “the evidence clearly
preponderates in the opposite direction.” Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d
183 (2000). This Court defers to the trial court’s findings on issues of credibility. Mogle v
Scriver, 241 Mich App 192, 201; 614 NW2d 696 (2000).
An abuse of discretion occurs “when the trial court’s 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.”3 Berger, 277 Mich App at 705. The trial court’s custody decision
receives the “utmost level of deference.” Id. at 705-06.
The Child Custody Act (“the Act”), MCL 722.21 et seq., governs child custody disputes.
The Act is liberally construed to support the best interests of children. MCL 722.26(1); Berger,
277 Mich App at 705. Under the Act, the court may not change an established custodial
environment unless there is clear and convincing evidence that a change in custody is in the best
interests of the minor child. MCL 722.27(1)(c); Ireland v Smith, 451 Mich 457, 461 n 3; 547
NW2d 686 (1996). There is an established custodial environment “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.” MCL 722.27(1)(c). In this case, the trial court found
an established custodial environment based on the fact that the minor child has lived with
plaintiff for her entire life and appears to be happy and well cared for according to the record
evidence. It is clear, and defendant does not dispute, that there is an established custodial
environment with plaintiff.
When there is an established custodial environment, the non-custodial parent has the
burden of proving by clear and convincing evidence that the best interests of the child would be
better served if the court were to grant him or her custody. The best interests of the child are
determined by the court’s findings regarding the statutory best interest factors listed in MCL
3
This definition of abuse of discretion, from Spalding v Spalding, 355 Mich 382, 384; 94 NW2d
810 (1959), continues to apply to child custody determinations despite the new “default”
definition for abuse of discretion, i.e., outside the principled range of outcomes, announced in
Maldanado v Ford Motor Co, 476 Mich 372; 719 NW2d 809 (2006). See Shulick v Richards,
273 Mich App 320, 323-325; 729 NW2d 533 (2006).
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722.23.4 The court is free to give greater weight to certain factors than to others. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
4
MCL 722.23 provides:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(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.
(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.
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Defendant first argues that the trial court incorrectly found factor (f), the moral fitness of
the parties, in favor of plaintiff. He argues that the court misconstrued the facts of an
investigation by CPS, improperly inferring that he had an alcohol problem and failed to properly
supervise his children. The court stated that it was concerned with “alcohol use by the father and
the acknowledged failure to provide supervision of his minor children.” The court did not find
that defendant had an alcohol problem, merely noted it as a possibility. The record clearly
supports the finding that defendant and his wife did not always properly supervise their children;
indeed, defendant’s wife admitted as much. Further, CPS expressed concern about defendant’s
alcohol consumption. Although it is true that there was no finding of neglect by CPS, there is
sufficient support in the record for the trial court’s concerns.
Defendant next objects to the trial court’s finding that the domestic violence factor, factor
(k), favored plaintiff. Defendant argues there is no evidence that he ever tried to strike plaintiff,
and that he never admitted anything. Defendant himself raised the issue of violence at the
hearing before the referee, volunteering that, “I supposedly puffed my chest out and drew back to
hit [plaintiff], because it was a heated argument.” The trial court held that this evidence “would
seem to substantiate a finding of domestic violence,” and found that the domestic violence factor
“maybe favors the mother.”
As indicated, this Court defers to credibility determinations made by the trial court.
Mogle, 241 Mich App at 201. Although defendant did not admit that he attempted or threatened
to strike plaintiff, the trial court was free to discredit his testimony. In addition, there was
evidence that the minor child returned from one visit with defendant covered in bruises. We find
that the evidence in the record does not clearly preponderate against the court’s finding for this
factor.5
Defendant also attacks the trial court’s findings for factor (d), the length of time the child
has lived in a stable home. However, the court found factor (d) in favor of defendant, noting that
plaintiff and the minor child had lived at six addresses in the previous five years. The court did
note that this frequent movement does not seem to have negatively impacted the child, and
defendant has not provided any evidence to the contrary. The court’s finding on this factor is not
against the great weight of the evidence.
Defendant further argues that the trial court should not have taken into account the minor
child’s preference regarding custody. However, MCL 722.23(i) states that the court should
5
Defendant also argues that plaintiff is abusive. However, this argument is based entirely on an
affidavit that was not part of the trial court record. Our review is “limited to the record
developed by the trial court, and we will not consider references to facts outside the record.”
Wiand v Wiand, 178 Mich App 137, 143; 443 NW2d 464 (1989). Because defendant did not
present to the trial court the evidence he now proffers in the affidavit, we must disregard it.
Similarly, defendant alleges on appeal that plaintiff’s husband is currently residing with plaintiff,
despite purporting to live with his father, and that a drug raid was conducted at his home. There
is no support in the trial court record for these allegations, and we will not consider them. See id.
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consider the “reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.” The trial court relied on the Friend of the Court
investigator, who determined that the child, who was five years old at the time, was sufficiently
mature to express a preference. Defendant cites a case that states that children of six are
generally old enough to express a preference, but provides no authority to the effect that a child
of five would be incapable of expressing a preference. See Bowers v Bowers, 190 Mich App 51,
55-56; 475 NW2d 394 (1991). We decline to hold that a five-year-old child is legally incapable
of expressing a preference.
Defendant also argues that the trial court failed to properly consider plaintiff’s history of
denying his visitation rights. But the court did note under factor (j) that plaintiff was likely more
at fault for the problems with parenting time. However, the court also found that each party had
caused problems by making complaints about each other to CPS. This finding is supported by
the record. The evidence does not clearly preponderate against the court’s finding that factor (j)
did not favor either parent.
None of the trial court’s findings are opposed by the great weight of the evidence.
Although on some issues there is evidence in defendant’s favor, it does not “clearly
preponderate” in his favor. Therefore, we uphold the trial court’s factual findings regarding the
statutory best interest factors. We further note that the trial court found six of the factors in favor
of plaintiff, two in favor of defendant, and three in favor of neither party.
In its conclusion, the trial court found that defendant failed to establish by clear and
convincing evidence that he should be granted physical custody. The court noted that by all
accounts the minor child was doing well. Although the court expressed concern with plaintiff’s
husband’s status as a sex-offender, it found those concerns insufficient “to undo a working,
custodial environment with the mother.”
Defendant argues that the trial court’s conclusions should be reversed because they differ
from the conclusions of the Friend of the Court investigator and the referee. However, in a de
novo hearing the trial court must render its own decision. Truitt v Truitt, 172 Mich App 38, 43;
431 NW2d 454 (1988). In fact, it would be grounds for reversal if the trial court simply decided
the case based on the Friend of the Court’s recommendation instead of reaching its own
conclusions.6 See id. at 43-44. Therefore, the court’s refusal to follow the recommendation of
the referee in this case cannot be grounds for finding an abuse of discretion.
Finally, defendant argues that the trial court was biased against him. As evidence, he
points to the fact that at oral argument the court demanded defendant’s authority for a statistic on
6
A trial court “may conduct the judicial hearing by review of the record of the referee hearing”
subject to certain conditions. MCR 3.215(F)(2); See also MCL 552.507, and Dumm v Brodbeck,
276 Mich App 460, 465-66; 740 NW2d 751 (2007). While the trial court was free to review and
adopt the referee’s findings of fact, credibility assessments, and conclusions of law, because the
hearing is de novo, the court was not obligated to defer to the referee on these matters.
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recidivism rates, but did not require plaintiff’s attorney to produce the citation for a case.
However, the court took issue with defendant’s study because he stated that he had found it on
the Internet. From the record, it appears that the court was reasonably trying to determine if the
study came from any sort of reputable authority. Defendant could not remember where he found
it, only that it was a “national study.” In addition, the court did not rely on the case described but
not cited by plaintiff. Under those circumstances, the court rightfully excluded defendant’s
evidence, and this cannot serve as evidence of bias.
The record as a whole gives every indication that the trial court seriously and impartially
considered defendant’s arguments. The court ordered the psychological evaluation of plaintiff’s
husband so that it could have more complete information on which to base its decision. The
court also issued a written opinion instead of ruling from the bench, because the case presented a
close call and the court wanted to make sure it carefully addressed all the arguments. We find no
indication that the court’s judgment was influenced by personal bias for or against either party.
The trial court’s decision in this case must be upheld unless it 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.” Berger, 277 Mich App at 705. As discussed above, the court did
not display any bias, and did not commit any reversible errors in finding that the majority of the
factors favored plaintiff. The court was free to place less weight than the referee on the fact that
plaintiff’s husband is a convicted sex-offender, particularly since it had the benefit of the expert
psychological evaluation, which the referee did not. The court properly found based on the
expert report that there is a low to moderate risk of plaintiff’s husband reoffending, and further
mitigated the risk by ordering him not to have unsupervised contact with the minor child.
Although another court might well have granted custody to defendant, leaving custody with
plaintiff under all the facts as the trial court found them does not evidence a perversity of will or
defiance of judgment.
The trial court did not abuse its discretion in refusing to grant defendant’s motion for
change of custody.
IV. DUE PROCESS
Defendant next argues that the trial court violated his procedural due process rights when
it ordered him to submit to a sex offender risk evaluation before having unsupervised contact
with the minor child based on plaintiff’s husband’s allegation of sexual abuse perpetrated upon
him by defendant. Defendant argues that he did not know of the allegations until the trial court
issued its opinion, and did not have notice and an opportunity to be heard regarding the sex
offender assessment.
Whether an action violates due process is a question of law. Reed v Reed, 265 Mich App
131, 157; 693 NW2d 825 (2005). We review the trial court’s conclusions of law de novo.
Walters v Snyder (After Remand), 239 Mich App 453, 456; 608 NW2d 97 (2000). As a
discretionary ruling, the trial court’s order requiring defendant to submit to a sex offender risk
evaluation is reviewed for abuse of discretion in the absence of a constitutional defect. Berger,
277 Mich App at 705.
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The specific requirements of due process vary with the circumstances, but the essential
requirement is one of fundamental fairness. Reed, 265 Mich App at 159. In a civil case, the
essence of due process is notice and a meaningful opportunity to be heard before a neutral
decision-maker. Al-Maliki v LaGrant, 286 Mich App 483, 485; 781 NW2d 853 (2009). A party
does not receive a meaningful opportunity to be heard when the court raises an issue sua sponte
without giving the party a chance to present arguments or evidence on that issue. See id. at 488489.
We hold that defendant did have notice and an opportunity to be heard in this case.
Although the trial court made no mention of a sex offender risk evaluation prior to its opinion,
the court’s order for defendant to submit to the evaluation was part of the broader issue of how to
serve the best interests of the child, and how often the parties should be allowed to see their
child. Defendant claims he was not aware of the allegations of sexual abuse against him until the
trial court issued its opinion. But, his lawyer reviewed the psychological evaluation of plaintiff’s
husband, which referenced the sexual abuse allegations, and did not offer any objections.
Despite the fact that these allegations could damage defendant’s chances to obtain custody of the
minor child, defendant chose not to respond by seeking to offer rebuttal evidence or to crossexamine plaintiff’s husband about the allegations.
Moreover, defendant knew that the court was considering his custodial rights in
connection with the best interests of the minor child. The interest of the child is the real issue
here. The court did not raise an issue sua sponte, only granted a specific form of relief that had
not been requested. Defendant had notice of the issue and an opportunity to argue his case
before a neutral decision-maker. Therefore, we find no violation of defendant’s procedural due
process rights.7
The trial court was authorized to consider the statutory best interest factors in
determining the “frequency, duration, and type of parenting time to be granted.” MCL
722.27a(6). Faced with an unrebutted allegation of sexual abuse perpetrated by defendant, the
court chose to grant only supervised visitation until defendant submits to the evaluation. It
cannot be said that the court’s attempt to ensure the safety of the minor child was grossly
violative of fact or logic. The trial court did not abuse its discretion in issuing this order.
V. SHOW CAUSE MOTION
Defendant’s final argument on appeal is that the trial court erred by ignoring his motion
seeking an order for plaintiff to show cause why she should not be held in contempt for denying
his visitation rights. Defendant did not argue this issue before the trial court, thereby forfeiting
7
Defendant also asserts that the trial court violated his substantive due process rights. However,
defendant does not provide sufficient support for this claim. He cites authority to the effect that
parental rights constitute a protected liberty interest, but does not explain why the trial court’s
action deprived him of substantive due process. This is insufficient to support appellate
consideration. See McIntosh v McIntosh, 282 Mich App 471, 484; 768 NW2d 325 (2009).
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the issue. We therefore review only for plain error affecting defendant’s substantial rights. See
Carines, 460 Mich at 763. In addition, defendant does not cite any authority as to why the trial
court should have issued a show cause order. We are not obligated to research defendant’s
position for him. See McIntosh, 282 Mich App at 484. Moreover, it is not plain that any error
occurred. The facts in the record do not clearly show that plaintiff denied defendant’s visitation
rights during the period alleged in defendant’s motion.
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Talbot
/s/ Donald S. Owens
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