Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pennington v. Pennington

Court of Appeals of Michigan

September 12, 2019

CHRISTINA MARIE PENNINGTON, also known as CHRISTINA MARIE JACKSON, Plaintiff-Appellant,
v.
COREY ALAN PENNINGTON, Defendant-Appellee.

          Ionia Circuit Court LC No. 2015-031385-DM

          Before: Gadola, P.J., and Markey and Ronayne Krause, JJ.

          GADOLA, P.J.

         Plaintiff, Christina Marie Pennington, appeals as of right the trial court's order granting defendant, Corey Alan Pennington, sole physical custody of the parties' minor child. We vacate the trial court's orders changing the child's custody and reinstate the trial court's prior custody order.

         I. FACTS

         This case arises from defendant's motions to change custody of the parties' minor child. Plaintiff and defendant were married in 2014, and their daughter was born in 2015. The parties divorced in February 2016; the judgment of divorce granted the parties joint legal custody and granted plaintiff primary physical custody of the child. Defendant was granted parenting time with the child, but because the child was an infant, was still nursing, and had recently undergone surgery for hip dysplasia, the trial court ordered that defendant's parenting time be supervised. The judgment of divorce also ordered defendant to complete parenting classes.

         In April 2017, plaintiff moved to hold defendant in contempt, alleging that he had not completed parenting classes and was being uncooperative during the supervised visits. In July 2017, the trial court ordered defendant to complete parenting classes and further ordered that defendant's visits with the child be supervised by the Friend of the Court. The trial court also held defendant in contempt for failing to pay medical expenses related to the birth of the child.

          On January 2, 2018, the trial court entered an order reflecting an amended parenting time schedule agreed to by the parties in which defendant was granted unsupervised parenting time with the child every other weekend. After the order was entered, however, plaintiff allegedly failed to bring the child to the exchange point for defendant's parenting time. Defendant filed a motion to show cause. At the hearing on the motion, plaintiff informed the trial court that she was concerned regarding defendant's care of the child. The trial court ordered plaintiff to comply with the parenting time order or be held in contempt, and further ordered that if plaintiff were held in contempt for failing to comply with the order she would be required to serve one day in jail for every day defendant was deprived of parenting time.

         On or about January 29, 2018, plaintiff took the child to her pediatrician, fearful that the child had been physically and/or sexually abused. Plaintiff later testified that the child had vaginal redness and irritation, and had stated "daddy hurt me." The pediatrician reported the information to Child Protective Services (CPS); CPS and law enforcement jointly arranged for a child sexual abuse medical examination of the child.

         On March 2, 2018, defendant moved for a change of custody, requesting sole physical custody of the child. Defendant alleged that circumstances had changed because plaintiff was unwilling to support a relationship between him and the child, causing him concern regarding plaintiff's mental health. At the hearing on the motion before the trial court referee, a CPS investigator testified that the allegations of abuse had not been substantiated. She further testified that she became concerned about plaintiff's emotional stability and mental health when plaintiff refused to accept that the allegations of abuse were not substantiated by evidence. The CPS investigator further testified that in her opinion "unnecessary medical treatment was found to have been going on." However, no medical expert was called to testify regarding either the results of the child's medical examination, plaintiff's mental health, or whether the medical treatment sought was unnecessary.[1]

         In response to the testimony of the CPS investigator, plaintiff testified that her past concerns regarding the child's health related to the child's previous surgery for hip dysplasia and weight loss that the child experienced when recuperating from the surgery. She also testified that the child had certain food allergies that caused her to consult her pediatrician and an allergist. Plaintiff confirmed that she had taken the child for an examination by the child's pediatrician when the child reported that defendant had hurt her, but testified that she had not contacted CPS with allegations against defendant; rather, the child's pediatrician had reported to CPS. Plaintiff also testified that the child had been seeing a therapist every week for the two months preceding the hearing because the child had been having some problematic behavior. Plaintiff testified that she also sees a therapist and that she takes medication for anxiety because she had experienced anxiety at work and sometimes had trouble falling asleep.

         At the conclusion of the hearing, the trial court referee stated on the record that the testimony of the CPS investigator together with the medical report supported the finding that there had been a change of circumstances since the last custody order. The referee also found on the record that the established custodial environment at that time was primarily with plaintiff, and that defendant's motion requested a modification of the established custodial environment, such that the "higher" burden of proof applied. The referee recommended that plaintiff undergo a psychological evaluation and that the parties temporarily have joint physical custody, with plaintiff having custody Monday through Friday, and defendant having custody every weekend, and also summer parenting time. The referee further stated that permanent custody would be evaluated after plaintiff underwent the psychological evaluation.

         By order entered March 27, 2018, the trial court adopted the recommendation of the referee as an interim order. The order stated that sufficient evidence had been introduced to prove proper cause and a change of circumstances. The order also stated that an established custodial environment for the child existed primarily with plaintiff, "and to a lesser extent with father at this time." The order indicated that it was a temporary order until plaintiff underwent a psychological evaluation, and pending review and recommendation by the Friend of the Court.

         On July 18, 2018, defendant filed a motion to show cause, alleging that plaintiff refused to agree to schedule his summer parenting time in accordance with the March 2018 order. A hearing was held August 14, 2018, before the trial court referee on the motion to show cause, at the conclusion of which the referee found plaintiff to be in contempt of court for failing to permit defendant to exercise his parenting time with the child as ordered in the March 2018 order. The referee recommended that plaintiff be ordered to serve 30 days in jail; the trial court adopted the recommendation of the referee.

         Meanwhile, also on August 14, 2018, defendant filed another motion seeking to change custody and again requesting that the trial court award him physical custody of the child. At the hearing held before the trial court's referee, defendant testified that he was requesting primary physical custody of the child, with plaintiff having alternate weekends for parenting time, and asking that plaintiff be ordered to pay child support if he were ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.