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McRoberts v. Ferguson

Court of Appeals of Michigan

November 28, 2017

MARY ILENE MCROBERTS, Plaintiff-Appellant,
v.
KYLE ANDREW FERGUSON, Defendant-Appellee.

         Midland Circuit Court LC No. 13-009563-DS

          Before: O'Connell, P.J., and Murphy and K. F. Kelly, JJ.

          Murphy, J.

         In this custody dispute, plaintiff appeals by right the trial court's opinion and order granting defendant's motion for sole legal and physical custody of the parties' minor child. We affirm.

         I. PERTINENT FACTS AND PROCEDURAL HISTORY

         The parties were never married and their child was born in March 2011. Sometime later that year, defendant joined the United States Navy. It appears that there was little to no communication between the parties until plaintiff sought child support in April 2013. Defendant then sought to revoke paternity and requested DNA testing, which later established defendant's paternity by a high probability. In December 2013, the parties were awarded joint legal custody and plaintiff was awarded sole physical custody. Defendant was ordered to pay monthly child support.

         Since that time, defendant sought and was awarded an increasing amount of parenting time with the child. A reoccurring issue, however, was plaintiff's repeated violations of the court's visitation orders. Specifically, plaintiff denied in-person visitations and "Skype" visits between the child and defendant. Pursuant to a stipulated order entered in January 2016, the parties resolved various issues that had been brought to the court's attention. Specifically, it was established that the child would only refer to defendant "as father, dad, [or] daddy, " as the child had been referring to plaintiff's boyfriend in that manner. Further, the court ordered that defendant would receive "make-up parenting time" with the child in California, which is where he was stationed. Shortly after the stipulated order was entered, however, defendant filed a show-cause petition alleging that his current wife had flown "into Detroit to pick[]up the minor child but plaintiff failed to show at the airport." Following a March 2016 hearing, the trial court found plaintiff "in contempt of court for willful violation of the visitation order" and cautioned that further violations would result in "30 days incarceration" and the child being placed in defendant's custody. The court also ordered that defendant would select a counselor in Michigan for the child and placed the burden on plaintiff to object to the selection.

         In May 2016, defendant filed another show-cause petition, alleging in part that plaintiff "continues to support the minor child addressing Defendant as 'Kyle' and her boyfriend as 'daddy[.]' " Defendant also alleged that plaintiff had failed to schedule an appointment for the child with the selected counselor. After a June 2016 hearing, the court found plaintiff in contempt of court. The court imposed a suspended 10-day sentence, conditioned on plaintiff's compliance with court orders. The court also ordered that the child would be "picked up" by defendant's wife and accompanied to San Diego, California, for summer parenting time with defendant.

         The child returned to Michigan and plaintiff's custody to begin school in the fall of 2016. In December 2016, defendant filed a show-cause petition alleging that only 17 out of a possible 34 Skype visits had occurred since the child had returned to Michigan. Defendant also averred that plaintiff had failed to arrange counseling for the child. At the show-cause hearing, plaintiff did not dispute those allegations. Other concerning matters included the child's numerous absences and "tardies" incurred for the 2016 school year, and that the child had arrived in California the previous summer with untreated cavities. The trial court found plaintiff to be in contempt of court with regard to the Skype visits and the lack of counseling. The court reasoned that "each little thing on its own is not huge; but it is the conglomeration of all of those things over time together that makes it contempt of court." The court sentenced plaintiff to 30 days in jail and awarded "temporary custody" to defendant.

         In January 2017, defendant filed a supplemental petition requesting sole legal and physical custody. A custody hearing was held on February 6, 2017. Defendant and his wife testified that the child was adjusting well to Suffolk, Virginia, which is where defendant was currently stationed. They provided positive academic reports, specifically that the child's recognition of "sight words" had increased significantly. They also indicated that they had arranged for a doctor, counselor, and dentist for the child and that they were in the process of arranging individual speech therapy, as the child was speaking at a substantially younger age level. Defendant also informed the court that he would be stationed in Suffolk for the "foreseeable future" and that his military duty no longer required deployments at sea. Defendant acknowledged that the child "misses" plaintiff but also informed the court that he had paid for Skype and telephone calls between the child and plaintiff while the latter was incarcerated. The court heard testimony from plaintiff and her parents, and it took the matter under advisement. In a 14-page opinion, the court found that there was proper cause and a change of circumstances to warrant revisiting the custody order, "namely Plaintiff's deliberate and repeated obstruction of Defendant's parenting time and relationship with the child." The court then found by clear and convincing evidence that it was in the best interests of the child for defendant to have sole legal and physical custody. The court considered each best-interest factor, weighing six in defendant's favor while not expressly weighing any in plaintiff's favor. Notably, with respect to factor (j), the court stated that "[o]ne of, if not the biggest concern for this Court over the lifespan of this case has been Plaintiff's unwillingness to facilitate a close relationship between the child and Defendant." The court found that "Defendant is heavily favored under this factor." The trial court awarded plaintiff parenting time in accordance "with the Midland County Long Distance Parenting Plan." This appeal followed.

         II. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

         Plaintiff first argues that the trial court erred in finding proper cause and a change of circumstances to warrant revisiting the existing custody order. We disagree. A trial court's order resolving a child custody dispute "shall be affirmed on appeal unless the trial judge 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. "This Court reviews a trial court's determination regarding whether a party has demonstrated proper cause or a change of circumstances under the great weight of the evidence standard." Corporan v Henton, 282 Mich.App. 599, 605; 766 N.W.2d 903 (2009). A trial court's factual findings are against the great weight of the evidence when "the evidence clearly preponderates in the opposite direction." Ireland v Smith, 214 Mich.App. 235, 242; 542 N.W.2d 344 (1995), mod on other grounds 451 Mich. 457 (1996).

         Section 7 of the Child Custody Act, MCL 722.21 et seq., allows a trial court to "modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances, " as long as the modification would be in the child's best interests. MCL 722.27(1)(c). "[P]roper cause means one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Vodvarka v Grasmeyer, 259 Mich.App. 499, 511; 675 N.W.2d 847 (2003). "[I]n order to establish a 'change of circumstances, ' a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed." Id. at 513 (emphasis omitted). To constitute a change of circumstances under MCL 722.27(1)(c), "the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child." Id. at 513-514.

         Plaintiff points to our acknowledgment in Vodvarka that caselaw established that "minor allegations of contempt or visitation complaints, " id. at 509-510, were insufficient to establish proper cause or a change of circumstances and contends that the trial court relied on such conduct in this case. First, we disagree with the premise that there were "minor allegations" of contempt in this case. To the contrary, plaintiff was found in contempt of court on three separate occasions, the last of which resulted in a 30-day jail sentence. Further, there were ongoing "visitation complaints" in this case, including that plaintiff failed to produce the child at the airport for a prearranged pick-up, causing defendant's wife to needlessly fly from California to Detroit. Second, as stated, the test for proper cause is an event that "could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Id. at 511. And plaintiff's interference with the child and defendant's relationship is plainly such an event. In addition to the ...


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