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Lapeer Circuit Court Family Division LC No. 04-034925-DM,State of Michigan Court of Appeals,
UNPUBLISHED, March 18, 2010 ,v No. 293702, RICHARD COLON CHRIVIA,
Plaintiff-Appellant, BARBARA ANN CHRIVIA, Defendant-Appellee.
Before: Servitto, P.J., and Bandstra and Fort Hood, JJ., PER CURIAM.
This opinion has been modified for media presentation. Original opinion at [1]
MOTION FOR CUSTODY
Plaintiff appeals by right an order of the trial court denying his motion to change custody.
The Lapeer Circuit Court, on de novo review, agreed with the Friend of the Court (FOC)
referee’s findings and entered an order consistent with the findings. Finding no error, we affirm.
This appeal has been decided without oral argument pursuant to MCR 7.214(E).
MARRIED 1989-2004
Plaintiff and defendant married in 1989 and divorced in 2004. The marriage produced
one child, MC, born in 2000.
JOINT LEGAL AND PHYSICAL CUSTODY THE PLAINTIFF PRIMARY PHYSICAL CUSTODY
The parties entered into a consent judgment of divorce that
granted both parents joint legal and joint physical custody of MC . In 2007, defendant,
concerned over plaintiff’s imminent move to West Virginia, sought sole physical custody.
Defendant was instead granted primary physical custody, and plaintiff was granted permission to
move to West Virginia.
ON VISITS DAD GRABS CUSTODY
In January of 2009, while MINOR CHILD (MC) was with FATHER plaintiff in West Virginia, plaintiff sought and received in the courts of West Virginia an emergency protective order and temporary custody of
MC. Meanwhile, defendant filed a motion in the Lapeer Circuit Court for MC return.
MICHIGAN SAYS GET THIS CHILD BACK
The trial court informed plaintiff that the temporary custody granted by West Virginia was
without effect and that he was required to return MC to defendant MOTHER, and attend a hearing in the
Lapeer Circuit Court. FATHER Plaintiff complied, and on the date of the hearing filed a motion for
change of custody in that court.
REFEREE SAYS LEAVE CHILD HERE
In June of 2009, the FOC referee heard plaintiff’s motion, taking testimony from
plaintiff, defendant, and plaintiff’s wife. The referee also interviewed MC in camera. The
referee recommended that plaintiff’s motion be denied, and made findings of fact on the record.
FATHER SAYS REFEREE SCREWED UP APPEALS TO THE REAL JUDGE
Plaintiff filed his objections before the trial court. The trial court reviewed the transcript and the
pleadings, and agreed with the referee and entered an order denying plaintiff’s motion.
FATHER NOT HAPPY WITH LAPEER COURT, HE APPEALS
Plaintiff’s sole argument on appeal is that the trial court abused its discretion in denying
plaintiff’s motion in light of the following facts:
(1) plaintiff is married and has a stable home,
while defendant has had two live-in boyfriends she met on the internet;
(2) plaintiff has a higher
income than defendant;
(3) defendant was previously unaware of MC Asperger syndrome1
diagnosis.
RULES FOR THE COURT OF APPEALS
We affirm all orders and judgments of the trial court in child custody cases unless the
court “made findings of fact against the great weight of evidence or committed a palpable abuse
of discretion or a clear legal error on a major issue.” MCL 722.28; Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004).
A JOURNEY BEGINS WITH THE FIRST STEP
The first step in deciding a motion for change of custody is determining whether proper
cause or change of circumstances merits such a change. MCL 722.27(1)(c); Powery v Wells, 278
Mich App 526, 527; 752 NW2d 47 (2008).
FATHER IS THE BEARER OF THE BURDEN
The party seeking the change bears the burden of establishing this by a preponderance of the evidence. MCL 722.27(1)(c).
JUST WHAT DID THE REFEREE SAY
THERE IS A CHANGE IN CIRCUMSTANCES
The FOC referee found that defendant having two live-in boyfriends in the space of two and a half years was both a sufficient change of circumstances and a proper cause to allow a change of custody. Plaintiff
does not contest this finding on appeal. Nor does the finding appear to be a palpable abuse of
discretion, as the adults with whom a child lives have or can have a significant effect on that
child’s well-being and development.
WHAT ABOUT THE CUSTODIAL ENVIRONMENT?
The next inquiry is whether there is an established custodial environment. Powery, 278
Mich App at 528. Plaintiff FATHER concedes that an established custodial environment exists with
Defendant MOTHER . The referee did not rely on plaintiff’s concession, but found that there was an
established custodial environment based on the length of time defendant had primary physical
custody. This finding is not against the great weight of the evidence. See Foskett v Foskett, 247
Mich App 1, 8; 634 NW2d 363 (2001).
PRELIMINARY STEPS COMPLETED, IS IT CLEAR?
Having established that there is proper cause or a change in circumstances, and that there
is an established custodial environment, what remains to examine is whether plaintiff established
by clear and convincing evidence that the change in custody is in the best interest of MC.
Powery, 278 Mich App at 528.
THE LEGISLATURE HAS DECIDED THE ELEMENTS OF THE BEST INTEREST OF A CHILD?
The Legislature has enumerated the following 12 factors to be considered when making the best interest determination:
(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. [MCL 722.23.]
SOME FACTORS ARE MORE EQUAL THAN OTHERS
While the best interest factors must be considered, a trial court need not give each factor equal
weight. Pierron v Pierron, 282 Mich App 222, 261; 765 NW2d 345 (2009).
FATHER SAYS FACTORS C,D,E, DONE WRONG.
It appears as though plaintiff’s arguments are aimed at best interest factors (c), (d), (e),
and (f).
( C)
The referee explained that plaintiff prevailed on factor (c) due to his higher income, but
noted that both parties were “struggling,” and that neither party was “suffering.” Because the
disparity in income was not dramatic, the referee did not give it great weight.
(D)(E)
With respect to factors (d) and (e), the referee expressed concerns about defendant’s two live-in boyfriends.
LIFE STYLE IS OF CONCRN
The trial court agreed that there were “certainly legitimate concerns about the Defendant’s lifestyle
and her manner of involvement of male companions in the child’s life.” The referee’s and the
trial court’s concerns on the impact of defendant’s decision to have her boyfriends live in the
home with MC does impact the stability and prospects for stability of the home. Thus, there
was no error in the handling of these factors below.
PARITY ON (F)
The referee found that the parties were equal with respect to factor (f), specifically
rejecting plaintiff’s argument that cohabitation outside of marriage was per se immoral under
case law. See Truitt v Truitt, 172 Mich App 38, 46; 431 NW2d 454 (1988)). It was not clear
legal error for the trial court to reject plaintiff’s argument; rather, it would have been clear legal
error for it to accept plaintiff’s argument.
THE SUM OF ALL THE PARTS IS THE SUM, MOTHERS SUM GREATER THAN FATHERS
In sum, the referee considered all of the statutory factors, weighed them, and found that
the factor on which defendant prevailed outweighed the two factors on which plaintiff prevailed.
The trial court, reviewing the testimony, came to the same conclusion.
THE LOCAL COURT DID NOT MESS UP
We find no palpable abuse of discretion in the trial court’s balancing of the best interest factors, and in finding that plaintiff failed to prove by clear and convincing evidence that it was in Joshua’s best interest to
grant plaintiff’s motion for change of custody
THE MICHIGAN COURT OF APPEALS AGREED WITH THE LAPEER FAMILY COURT!
Affirmed.
Posted here by
Terry Bankert
http://attorneybankert.com
see
[1]
http://www.icle.org/contentfiles/mlo/unpublished/20100318_293702.pdf
[2]
CAP HEADLINES or 9trb)
Terry Banker
http://attorneybankert.com
FOOTNOTE
1 Asperger syndrome is a developmental disorder characterized by low social ability but normal
linguistic and cognitive function (DSM-IV-TR). It is often considered a form of or similar to
high-functioning autism.
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