Opinion
No. 335877
11-14-2017
CHRISTIE L. NORDHIELM, Plaintiff-Appellant, v. MARTA DAPENA-BARON, Defendant-Appellee.
UNPUBLISHED Washtenaw Circuit Court
LC No. 14-001226-DC Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
In this child custody dispute, plaintiff appeals by right the trial court's judgment, following a bench trial, awarding sole legal custody of the minor child, SB, to defendant and setting a parenting time schedule. We affirm.
I. BASIC FACTS
The parties began dating in 1999 and held a same-sex commitment ceremony in the State of Florida in 2000. Defendant thereafter underwent in vitro fertilization, and gave birth to a daughter, SB, in April 2003. Plaintiff adopted SB.
Plaintiff had a son, GN, while in a previous relationship, also by in vitro fertilization using the same donor. Defendant adopted GN at the same time that plaintiff adopted SB. GN had reached the age of majority by the time of these proceedings and was therefore not the subject of the trial court's order.
The parties moved to Michigan in 2005, and plaintiff began teaching at the University of Michigan. They also founded a rather lucrative consulting business. Defendant testified that her relationship with plaintiff became strained in 2011. She stated that plaintiff was having work issues at the university and was treating her like a junior partner in the consulting business.
In 2013, plaintiff was diagnosed with an aggressive form of breast cancer. She underwent chemotherapy from July 2013 through September 2014. During that time, defendant told plaintiff that she wanted to end the relationship. Defendant began sleeping in a different room in the home and struck up a close personal relationship with another partner. Defendant testified that plaintiff was physically abusive on several occasions. Defendant moved out of the home in May 2014 after an incident in which plaintiff screamed at her, kicked her, shoved her, and pulled her hair.
In June 2014, plaintiff filed suit against defendant, seeking custody of SB. The trial court entered an ex parte order providing for joint legal custody and for plaintiff to have primary physical custody of SB with defendant granted reasonable parenting time. In July 2014, the trial court entered an interim parenting time order providing for 50-50 parenting time.
The parties' custody dispute was acrimonious and fraught with conflict. The trial court attempted to facilitate resolution of the dispute by appointing a lawyer-guardian ad litem (L-GAL) over SB, Novia Nichols, and later a parenting time coordinator, Karen Valvo. The parties argued over many things relating to SB, including communications with SB during parenting time, SB's commitment to horseback riding at an elite level, her education at a private school, her dental care, her travels, her frequent flyer miles, and numerous other issues. The custody dispute was exacerbated by business and property disputes.
The trial court held a 13-day bench trial regarding custody of SB in July, August, and September 2016. The trial court heard extensive testimony from the parties and their associates about their relationship, SB, and their inability to co-parent. The trial court also heard testimony from several experts.
Valvo testified that this case involved a high level of conflict that had increased by the time she issued her third set of parenting recommendations. Valvo characterized plaintiff as "very direct, very intelligent, very determined, actually quite a fascinating person . . . but when I issued recommendations with which she did not agree and when I did not revise my recommendations to her satisfaction, she could become quite demanding." Although she refused to characterize plaintiff's conduct as abusive, she said that plaintiff could be "nasty on occasion." Valvo characterized defendant as "very intelligent, very driven, [and] very accomplished." She too "could be quite firm in her disagreement," but, after Valvo explained the bases for her decisions, defendant accepted them. She said that defendant's communications were never nasty.
Jack Haynes, Ph.D. testified that he was a licensed psychologist and had evaluated both the parties and SB. He prepared a custody evaluation for the trial court and also testified at trial. Haynes testified that both parties were articulate, motivated, savvy, and goal directed. They were also "intense and passionate for their point of view," which, he offered, was one of the problems surrounding his best-interest determination; each party had a strong negative view of the other.
Haynes stated that the level of resentment, anger, and antagonism in this case, which was displayed over an extended period of time, was the "most salient aspect of the situation because it affect[ed] everything, and [it was] very problematic." He had recommended binding arbitration because he thought continued litigation would increase the conflict between the parties. He also strongly recommended the continued participation of the L-GAL or a parenting coordinator. He stated that he made his recommendations in an attempt to resolve the dispute without someone being perceived as winning or losing. He stated that people typically "calm down or settle down," but it "seem[ed] ingrained" in the parties that they would continue to disagree. Despite issues between the parties, he recommended joint physical custody of SB and equal parenting time.
Haynes also stated his concern that if either party obtained sole legal custody, one party might try to cut out the other party. He also worried that the party who did not get sole legal custody would feel as though she had "lost" and would be retributive. Nevertheless, he also stated that joint legal custody might pose its own problems. He suggested that joint legal custody would likely not work unless the court appointed someone to resolve disputes, explaining that the parties needed "a buffer or monitor" for their case. In fact, he felt that they likely would continue to require the services of both an L-GAL and a parenting time coordinator.
Haynes noted that plaintiff was argumentative and likely to bring up conflicts with defendant in his discussions with her. She also tended to blend her view of herself—her own "wants, desires, needs, experiences, [and] enjoyment"—with SB and her horses. He referred to this in his report as an " 'apparent blending of perception and identity.' " Plaintiff's encouragement of SB's horseback riding had personal meaning to her. He also described plaintiff as more of a risk taker. He stated that it was "clear" that she was the more intense person and noted that plaintiff frequently cut him off and talked over him during the interview. She was emotionally volatile. Haynes testified that defendant was more structured and less permissive with SB.
Pamela Ludolph testified that she was a child psychologist and had done presentations for organizations on personality disorders in high conflict divorces. She testified generally about parental alienation, which she defined to be acts by a parent that were intended to distance the child emotionally from the other parent. Ludolph offered an opinion about hypothetical acts and whether those acts might increase parental alienation. Ludolph opined that text messages (mentioned in Haynes's report) sent by plaintiff to SB indicating that the parties' parenting time dispute would mean that she would have less time to ride horses showed that there was a risk that plaintiff was trying to alienate SB from defendant.
Ludolph also testified with regard to Haynes's report. She agreed that she had not personally evaluated anyone involved and that she was evaluating Haynes's report on the assumption that everything stated within it was 100% accurate. Ludolph opined that Haynes's conclusions did not appear to follow from the data he recited in the report. She also thought it odd that Haynes had determined that there had been no domestic violence given the evidence of domestic violence that he had cited. Haynes had also noted that plaintiff made condescending and undermining remarks about defendant as if defendant was inferior, and had concluded that plaintiff felt that she was 100% right and defendant was 100% wrong. Yet those remarks did not seem to be accounted for in his conclusions. She opined that Haynes's individual conclusions, which were sprinkled throughout the report, overwhelmingly supported a grant of sole legal custody to defendant, but that his overall conclusions did not reflect that. Ludolph was struck by the fact that Haynes recommended a resolution that continued the current status, which in her opinion did not seem to be working.
Robert Edward Erard testified that he was a licensed psychologist, and the trial court admitted him as an expert on child development and attachment theory. Erard testified that he thought Haynes's recommendations were unusual and did not follow from his statement of the problems facing SB. Erard noted that Haynes had made many "observations about the parties and expressed a great deal of probably warranted concern about the likely long-term impact on the child of the status quo," and then recommended that the court approve a continuation of the status quo.
After considering the testimony and evidence, the trial court issued an opinion and order in November 2016. The trial court found that SB had an established custodial environment with both parties. It then examined the best-interest factors, see MCL 722.23, and found that defendant had established by clear and convincing evidence that it was in SB's best interests that defendant have sole legal custody. The trial court maintained joint physical custody, but reduced plaintiff's parenting time during the school year. The trial court entered a final judgment consistent with its opinion and order later that month.
Although the trial court had stated in its June 2014 order that it was awarding primary physical custody to plaintiff, the parties effectively had joint physical custody because SB resided with both parents on a 50-50 basis. See Lieberman v Orr, 319 Mich App 68, 79; 900 NW2d 130 (2017). The trial court recognized this in its November 2016 order following trial.
This appeal followed
II. CUSTODY DETERMINATIONS
A. STANDARD OF REVIEW
In child custody disputes, we review a trial court's factual findings to determine whether they are against the great weight of the evidence. A finding is against the great weight of the evidence when it is so contrary to the weight of the evidence that it is unwarranted or is so plainly a miscarriage of justice that it would warrant a new trial. Fletcher v Fletcher, 447 Mich 871, 877-878; 526 NW2d 889 (1994). We review for an abuse of discretion a trial court's discretionary rulings in a custody dispute. MCL 722.28. "An abuse of discretion exists 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." Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). Finally, we review for clear legal error the trial court's selection, application, and interpretation of the law governing custody disputes. MCL 722.28; Fletcher, 447 Mich at 881. We review de novo issues of statutory interpretation and the trial court's application of statutes and court rules. Kaeb v Kaeb, 309 Mich App 556, 564; 873 NW2d 319 (2015).
B. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES
Plaintiff first argues that the trial court erred when it proceeded to alter the then-existing custody arrangement without addressing the threshold issue of proper cause or a change in circumstances. We disagree.
The Legislature has limited a trial court's ability to modify or amend an existing custody order to situations involving proper cause or a change in circumstances in order "to erect a barrier to the removal of children from established custodial environments and to minimize disruptive changes to custody arrangements." Kaeb, 309 Mich App at 567, citing Vodvarka v Grasmeyer, 259 Mich App 499, 509, 675 NW2d 847 (2003). The proper cause or change in circumstances limitation stated in MCL 722.27(1)(c) does not apply, however, to a judgment awarding custody after trial, even though the trial court may already have entered a temporary order governing custody and parenting time. See Thompson v Thompson, 261 Mich App 353, 359-362; 683 NW2d 250 (2004).
The trial court entered an interim temporary order governing custody and parenting time pending trial. But because the trial court entered a new order awarding custody after the trial, it did not have to address proper cause or change in circumstances. MCL 722.27(1)(c). Thompson, 261 Mich App at 353. Accordingly, the trial court did not commit a clear legal error by failing to address the threshold issue of proper cause or change in circumstances. MCL 722.28.
C. EXPERT TESTIMONY
Plaintiff argues that the trial court erred by allowing and relying on the testimony of Ludolph and Erard. We disagree.
Plaintiff argued before the trial court and argues on appeal that neither expert could offer an expert opinion on the ultimate issues—custody and parenting time—under the ethics rules promulgated by the American Psychological Association because neither expert had examined either plaintiff or SB. She suggests that the psychologists were further violating the ethics rules because they had a relationship with defendant that precluded them from offering impartial opinions. She does not, however, explain how these issues render the experts' testimony inadmissible under MRE 702. Consequently, to the extent that plaintiff argues on appeal that the trial court committed evidentiary error when it allowed these experts to testify, she has abandoned that claim of error by failing to properly raise and address the claim of error. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Further, the trial court did not abuse its discretion by allowing the experts to testify in the limited ways that they did. See Gay v Select Specialty Hosp, 295 Mich App 284, 290-292; 813 NW2d 354 (2012) (describing the procedure for admitting expert testimony and stating that whether to admit expert testimony is a matter for the trial court's discretion). Ludolph and Erard did not testify regarding who should receive custody of SB and did not advise the trial court on the parenting time that it should award to either party. Ludolph and Erard admitted that they had not directly examined any of the parties and were offering expert critiques of Haynes's custody evaluation. Ludolph testified on the assumption that everything Haynes had stated in his report was 100% accurate. Ludolph also testified generally about the phenomenon of parental alienation and identified behaviors that might indicate that one parent was trying to alienate a child from the other parent. She further opined that the text messages mentioned in Haynes's report demonstrated a risk that plaintiff was trying to alienate SB from defendant.
Both experts' testimony regarding Haynes's custody evaluation involved specialized knowledge about matters outside the scope of ordinary understanding, specifically, about the propriety of the conclusions offered by another expert under a given set of facts. See MRE 702. Ludolph also offered specialized knowledge about the issue of parental alienation and identified acts that might constitute attempts to alienate a child from the other parent. Therefore, both witnesses offered the kind of testimony contemplated under MRE 702. See People v Bynum, 496 Mich 610, 624; 852 NW2d 570 (2014) (stating that expert testimony may be necessary when the evidence implicates matters that are beyond the ken of common knowledge). They also both premised their opinions on the background facts identified by Haynes in his report and on the assumption that his statement of the facts was accurate. Accordingly, they both offered opinions on facts in evidence. MRE 703.
Ludolph and Erard opined that the facts and smaller conclusions within Haynes's report did not support his ultimate conclusion that joint legal custody and equal parenting time would be appropriate. As experts, they could properly offer testimony that embraced the ultimate issue. MRE 704. Each expert limited his or her testimony to an analysis of the conclusions and recommendations made by Haynes. The trial court heard testimony regarding the potential for bias that both experts had for defendant's position. The trial court recognized the limitations of the experts' testimony in its opinion. The fact that these experts might have had a bias went to the weight and credibility of their testimony—not its admissibility. Ultimately, it was for the trial court as the finder of fact to assess the weight and credibility to be afforded their testimony on the basis of this evidence. Surman v Surman, 277 Mich App 287, 309-310; 745 NW2d 802 (2007) (stating that the extent of a witness's expertise is for the trier of fact and doubts about credibility and gaps or weaknesses in the expert's opinion are matters of the weight to be afforded the testimony and not its admissibility).
The trial court did not abuse its discretion by allowing and relying on the testimony of these experts. Gay, 295 Mich App at 290.
D. BEST-INTEREST FACTORS
The trial court found that SB had an established custodial environment with both parents. For that reason, it could not award either parent sole legal custody unless it found that that parent had established by clear and convincing evidence that the award was in SB's best interests. See MCL 722.27(1)(c). In making its determination, the trial court considered the factors listed under MCL 722.23. See Grew v Knox, 265 Mich App 333, 337; 694 NW2d 772 (2005); MacIntyre v MacIntyre, 267 Mich App 449, 451-452; 705 NW2d 144 (2005).
The trial court addressed every statutory factor in its opinion. On appeal, plaintiff does not challenge the trial court's findings with regard to each factor. Instead, she argues only that the trial court's findings under certain factors were improper as a matter of law or contrary to the great weight of the evidence. Consequently, we shall limit our analysis to those factors.
1. FACTOR (b)
Plaintiff first challenges the trial court's finding that MCL 722.23(b), which addresses the "capacity and disposition of the parties involved to give the child love, affection, and guidance," favored defendant. More specifically, plaintiff argues that the trial court erred by considering her own behavior in the courtroom when deciding this factor. We disagree.
Under factor (b), the trial court found that both parties were "intelligent and dynamic women," who had the capacity to provide SB with "love, affection, and guidance." However, the trial court was concerned about plaintiff's ability to provide proper guidance to SB and found that this factor slightly favored defendant. In making this finding, the trial court relied on its observation of plaintiff's demeanor during the proceedings, including her "eye-rolling, exasperated outbursts and snickering." The trial court offered that plaintiff's "lack of control" raised the concern that she would be unable "to adequately guide her daughter as she matures and develops relationships with adults, authority figures and peers."
On appeal, plaintiff implies that her behavior in court was not evidence that the trial court could consider. She did not, however, address what constitutes evidence for purposes of deciding questions of fact. She also has not identified any authority that would exclude demeanor evidence from consideration by the finder of fact. Therefore, she has abandoned this claim of error on appeal. Mitcham, 355 Mich at 203.
Even if not abandoned, plaintiff has not shown that the trial court erred when it considered her demeanor. Although not always relevant or admissible, courts generally consider the demeanor and other actions of a party while seated at the counsel table. See 22 Wright & Miller, Federal Practice & Procedure (2d Ed): Evidence § 5163.
The trial court—as the finder of fact—could properly consider plaintiff's demeanor when judging her credibility. See People v Lemmon, 456 Mich 625, 646; 576 NW2d 129 (1998). In this case, the trial court repeatedly admonished the parties to refrain from making faces or engaging in outbursts. Despite addressing both parties, the context showed that the court was referring to plaintiff on many of these occasions. Consequently, there was sufficient information in the record for this Court to review the trial court's finding. MacIntyre, 267 Mich App at 451-452. Plaintiff's conduct in the courtroom was relevant to assessing her claims that she had cooperated with defendant and tried to stop the conflict, that she had fully complied with the court's orders regarding custody and parenting time, and that she did not disparage defendant in front of SB, among other things. MRE 401. Plaintiff's behavior in court was also consistent with the testimony that she was aggressive and argumentative, talked over the professionals involved in the case, and could be nasty when she disagreed with a decision involving SB. Id. Therefore, the trial court did not err as a matter of law when it considered, in context with the other testimony and evidence, plaintiff's behaviors at trial and whether it implicated her ability to provide proper guidance to SB. See MCL 722.23(b), MRE 401, 402. And the trial court's finding that factor (b) favored defendant was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
2. FACTOR (f)
Plaintiff argues that the trial court's finding that "the moral fitness of the parties," MCL 722.23(f), favored defendant was contrary to the great weight of the evidence. We disagree.
Plaintiff disputes the trial court's statement that it was not convinced that defendant had hacked into plaintiff's personal online file storage account ("Dropbox") to obtain a copy of her "private journal" or "memoir," a document called "Cancer, My Love." Plaintiff claims that her testimony established that defendant could only have obtained the document by hacking into her account. She also questions defendant's decision to provide a copy of the document to Haynes for use in his report.
In addressing the hacking claim, the trial court specifically noted that there was a factual dispute over whether defendant had obtained access to "Cancer, My Love" from a Dropbox account associated with the parties' business or from plaintiff's private Dropbox account. It ultimately resolved this dispute by stating that it was not "convinced" that defendant had "hacked into anything." That is, the trial court disbelieved plaintiff's claim that the document was only available through a private Dropbox account. This finding was not against the great weight of the evidence. Although plaintiff testified that she kept the document in a private Dropbox account and did not provide defendant with the password, defendant testified that the document appeared in the Dropbox account associated with their shared business. Additionally, the parties' former household and business assistant, Visa Pawittranon, testified that the business used a Dropbox account that allowed them to sync all their files to various company computers. She stated that any file put in the Dropbox account would automatically load onto every other computer connected to that account, that a copy of the document was in the business's Dropbox account, and that a password would not be needed to access the file on a connected computer.
Pawittranon's testimony corroborated defendant's version of events and suggested that defendant had obtained her copy without hacking into plaintiff's account. Given the evidence tending to show that the document was available in the business account, it cannot be said that the trial court's resolution of this factual dispute was contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
Plaintiff also maintains that defendant's decision to provide "Cancer, My Love" to Haynes was a concern and that the trial court should not have relied on the document in its findings. The trial court wrote that it did not read the entire document, but noted that it had been the subject of testimony and was "[b]y all accounts" a tale by plaintiff of defendant's "shortcomings." The trial court also rejected the notion that it was pure fiction; it stated that plaintiff apparently made no attempt "to fictionalize or even to change any names" in the document. It found that the document was relevant in that it further demonstrated that plaintiff took no responsibility for anything negative that had happened in her relationship with defendant.
On appeal, plaintiff has not argued that the testimony and evidence concerning the document was inadmissible or that it could not have been properly considered by Haynes when evaluating custody. Testimony at trial showed that the document appeared to identify the parties and describe actual events in their lives. Plaintiff wrote about incidents of domestic violence in the document that appeared to corroborate defendant's version of events. As the trial court correctly noted, plaintiff repeatedly blamed defendant for triggering her abusive behaviors or minimized her culpability for those behaviors, and the memoir reinforced that evidence. Plaintiff's memoir—fictional or not—was relevant to a proper assessment of her credibility regarding events that she described and relevant to assessing her understanding of the events leading to the parties' separation. See Wischmeyer v Schanz, 449 Mich 469, 475; 536 NW2d 760 (1995) (stating that evidence concerning a witness's credibility is generally relevant and admissible). Any limitations presented by the format of the document and whether it was truly a fictionalized account went to the weight to be afforded the document and not its admissibility. See, e.g., Mitchell v Kalamazoo Anesthesiology, PC, ___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket No. 331959); slip op at 4 (stating that, even when there is conflicting evidence about the genuineness of a document, it is for the finder of fact to determine the weight and reliability of the document). The trial court therefore could properly consider the testimony and other evidence regarding the document. MRE 402. Additionally, concerning the nature of the document and the litigation at issue, it was not against great weight of the evidence for the trial court not to fault defendant for turning it over to Haynes. Fletcher, 447 Mich at 877-878.
Plaintiff also argues that the trial court failed to give appropriate weight to the evidence that defendant had had an affair while plaintiff was suffering through her cancer treatments, and the harm to SB that the affair had caused. We disagree.
In examining the evidence that defendant had had an affair, the trial court for the most part accepted defendant's testimony that the parties' relationship had become very strained by the time defendant began an emotional relationship with another partner. The trial court also noted that both parties had found new partners within a relatively short time after the end of the relationship. The trial court concluded that both parties had "multiple examples" of the other's moral failings, but that none of the examples were particularly shocking. It found that only one incident actually brought difficulty to SB and implicated moral fitness--an incident in which plaintiff and some friends were observed naked in a hot tub by SB and her friends. It stated that the so-called "naked party" became a point of discussion among SB's friends such that one of the friends' parents had questioned plaintiff about it. The decision to allow such behavior while children were present, the trial court explained, was evidence that plaintiff lacked proper judgment.
As the finder of fact, the trial court had the obligation to assess the credibility of the witnesses and to assign weight to the evidence. Wright v Wright, 279 Mich App 291, 299; 761 NW2d 858 (2008). There was evidence to support the trial court's decision to give little or no weight to the moral implications of defendant's relationship with another partner. Testimony showed that defendant and plaintiff had been having problems for some time before defendant began the relationship. There was evidence that the parties' relationship had been plagued with verbal and emotional abuse that eventually included domestic violence and that the parties were staying in separate parts of the home. There was evidence that both parties had found new partners who interacted with SB, and that plaintiff had married her new partner.
There was also evidence that plaintiff minimized the incident involving nudity and the concerns of SB's friend's parent. Her lack of insight into the event and her role in it, along with her attempt to undermine the legitimacy of the parent's concern, was—as the trial court correctly stated—evidence that she lacked proper judgment.
Finally, plaintiff points to discrepancies in defendant's testimony that she believes demonstrate that defendant lied at trial. The discrepancies were made before the trial court, and it was the final arbiter of credibility. It chose to believe defendant's version of events, and we defer to the trial court's assessment of the weight and credibility of her testimony. Wright, 279 Mich App at 299; MCR 2.613(C).
The trial court's finding under factor (f) was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
3. FACTOR (g)
Plaintiff next argues that the trial court's finding that factor (g) favored defendant was contrary to the great weight of the evidence. Factor (g) involves the "mental and physical health of the parties involved." MCL 722.23(g). We disagree.
Regarding this factor, the trial court found that both parties were essentially physically healthy. The trial court also found that, if plaintiff has any "lingering mental illness" from when she was younger, "she functions at an astronomical level." It observed, however, that the evidence showed that she lacked "self-control" and was "somewhat aggressive." It further opined that she lacked perspective. Finally, the trial court expressed concern about Haynes's opinion that plaintiff blends her own wants and needs with SB's. Taken together, the trial court found that this factor favored defendant.
On appeal, plaintiff again faults the trial court for relying on her behavior at trial to find that she lacked self-control. As discussed, the trial court could properly consider her behavior to the extent that it reflected on her credibility and her ability to exercise self-control.
Plaintiff further argues that the trial court expressed "apparent disdain" at the importance of horseback riding in SB's life, implying that trial court was unaware that SB was passionate about horseback riding and that it was important to her self-esteem and motivation. The record shows that trial court knew about SB's interest in horseback riding and her talent. The trial court referred to the issue of horseback riding because there was evidence that plaintiff valued SB's horseback riding disproportionately and used SB's interest in riding horses to undermine defendant's parenting.
The record supported the trial court's finding that plaintiff lacked self-control, was aggressive, lacked perspective, and was unusually focused on SB's horseback riding. The trial court's finding was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
4. FACTOR (h)
Plaintiff argues under this factor that the trial court erred by finding that she was less supportive of SB's academic needs than was defendant. We disagree.
Under MCL 722.23(h), the trial court must consider the "home, school, and community record of the child." The trial court stated that the evidence showed that SB had struggled with academics for the past two school years. It recognized that there was evidence that both parents supported SB academically. However, it stated that plaintiff was "very willing to downplay academics where travel and extracurricular activities present other options for growth and experience." Such an attitude would normally be positives, the trial court wrote, were it not for SB's "acute academic concern."
SB's academic advisor testified that plaintiff had expressed concern that the school and staff had to think "about more than just academics." She stated that plaintiff felt that there had "to be more than that"—they had to think about "[SB's] overall happiness and the way she feels about herself and other aspects other than just academics." She opined that defendant seemed to place more emphasis on academics.
Further, Haynes opined that defendant felt that homework was more important than plaintiff did. Plaintiff admitted to having had a disagreement with defendant over tutoring. And defendant testified that they had disagreed about tutoring and stated that she did not agree that horseback riding should interrupt school.
On the basis of the evidence, the trial court found that factor (h) favored defendant because she had a "clearer insight into the fragile and critical nature of [the child's] academic needs at this time." There was record evidence to support this finding, and it was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
5. FACTOR (j)
Plaintiff challenges the trial court's finding that factor (j), which involves 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," MCL 722.23(j), favored defendant. Specifically, plaintiff argues that the trial court erred by finding that she was not willing to encourage a close and continuing relationship between SB and defendant. We disagree.
The trial court noted that plaintiff had trouble recognizing anything positive in defendant. It also noted that the record showed that plaintiff had disparaged defendant in front of SB and that she claimed to be the superior parent. The trial court referred to plaintiff's "utter lack of respect" for defendant's role in SB's life.
The record supports the trial court's findings. Chelsie Nicholas, who served as an in-home assistant to plaintiff, testified that plaintiff talked about the custody dispute constantly and that the discussions were not pleasant. Nicholas stated that plaintiff always said awful things about defendant and referred to defendant as "the devil." She would tell visitors about how defendant had cheated on her and had left her while she was struggling with cancer. Further, she said these things while SB was present. She referred to defendant's new partner as a "slut," a "home-wrecker," and a "whore," and once told SB that defendant did not love her. Nicholas said that SB was noticeably upset by these statements. Haynes also testified that plaintiff had brought up more negative things about defendant during his interviews with her, and said that she admitted to stating negative things about defendant in front of SB.
Ludolph opined that plaintiff's references in text messages to sole custody and defendant's alleged affair increased the possibility of parental alienation. Ludolph informed the trial court that the text messages identified in Haynes's report demonstrated a risk that plaintiff was trying to alienate SB from defendant.
Defendant testified to an incident in which SB had asked to stay late at the barn where she was riding horses, and then was not there when defendant arrived to pick her up. Defendant said that she discovered SB at the home of a friend and learned that SB had a second cellphone that she was not supposed to have. Defendant stated that a text message from plaintiff to SB, found on that phone, suggested that plaintiff had orchestrated the incident. Defendant testified that she felt that plaintiff had severely alienated SB from her.
Although plaintiff testified that she would facilitate SB's relationship with defendant, there was significant evidence to the contrary, as noted. It was for the trial court to resolve the conflict in this evidence, and it resolved it in favor of defendant. Wright, 279 Mich App at 299. The trial court's finding on this factor was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
6. FACTOR (k)
Factor (k) relates to incidents of domestic violence. See MCL 722.23(k). Plaintiff asserts that she has never committed domestic violence, and she maintains that the evidence showed that she was physically incapable of doing so during the times claimed by defendant because she was debilitated by her cancer treatment. We disagree.
The trial court rejected plaintiff's testimony that, during an incident in which she had struck defendant while defendant was driving a car, she was just "flailing" her arms and did not intend to strike defendant. The trial court opined that plaintiff was just "not credible." It further noted that defendant had presented a witness who corroborated a domestic violence incident in the home, and found it telling that plaintiff's memoir seemed to corroborate the driving incident. Although the trial court found that factor (k) favored defendant, it found that domestic violence was not a "repeated significant issue."
Whether and to what extent plaintiff had engaged in domestic violence was a matter of significant dispute. Plaintiff denied the abuse but nevertheless wrote about incidents of physical aggression in her memoir. She also conceded that she had struck defendant while she was driving to an appointment—albeit, in her version, accidentally—and she stated that she had "tussled" with defendant on an occasion in which she had discovered her skyping with her new partner. It was for the trial court to resolve the disputed evidence. Wright, 279 Mich App at 299. Given the conflicting evidence, the trial court's decision on this factor was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
7. FACTOR (l)
Under factor (l), the trial court may consider "[a]ny other factor considered by the court to be relevant to a particular child custody dispute." MCL 722.23(l). The trial court found that this factor favored defendant.
The trial court placed particular emphasis on this factor; it explained that it had obtained the impression "throughout the proceedings" that plaintiff "could, under no circumstances and no matter who questioned her, admit any fault or part of the devolution of this relationship, nor really in any other area of her life." The trial court noted that plaintiff had been unable to control herself at trial, which gave the impression that "she could not tolerate any theory wherein she was at fault for anything." She was also "hard pressed" to identify anything about defendant that was positive and described defendant as someone who "merely piggy backed on" plaintiff's successful business.
The trial court relied on witnesses, such as Valvo and Nicholas, who testified about plaintiff's problematic behaviors. The trial court noted that plaintiff had refused to sign a contract with SB's school unless defendant settled a lawsuit related to their business. Yet, the trial court wrote, she took "no responsibility for her action in these conflicts." This inability to admit responsibility was also evidenced by plaintiff's response to the inquiry by a parent regarding the so-called "naked pool party." Plaintiff described the concerned parent as homophobic and blamed her for SB's "resulting stress and embarrassment"; she could not accept any fault for the incident in which children were exposed to nude adults.
The trial court found that plaintiff could admit no culpability for conflicts in which she was involved and felt that her own opinion was "absolutely correct." Finally, the trial court referred to a letter that SB had sent to the trial court that, in part, explained the importance of horseback riding in her life. The trial court opined that plaintiff had coached SB while writing the letter, and felt that this was an attempt to sway the court on the issue of custody. The trial court stated that it had repeatedly warned the parties about telling SB details of the trial. It found that plaintiff's "lack of insight into the inappropriateness of this action" was astounding.
Plaintiff complains that this case "is not a divorce case" and that the issue is "not what happened between the parties." In any event, she argues, the trial court's findings under this factor were inaccurate. Plaintiff faults the trial court for believing Nicholas, and for ignoring evidence that defendant had failed to take responsibility for her actions. Regarding the trial court's reference to various conflicts between the parties, some of them in public, plaintiff argues that the trial court took each incident out of context and appeared to be "dismissive" of plaintiff's "difficult journey through cancer." Finally, she argues that the trial court made improper assumptions about the letter that SB had sent to the court, without conducting an evidentiary hearing.
The trial court's finding that plaintiff lacked insight into her role in creating conflict and could not admit fault for conflicts was fully supported by record evidence. In addition to the testimony identified by the trial court, there were other witnesses who testified about plaintiff's aggressive tactics, her issues with anger, and her inability to accept responsibility for causing or perpetuating conflict. For example, the parties' accountant testified about an effort by the parties' financial advisor to get the parties together to resolve some financial issues. He stated that the meeting had turned ugly and degenerated into a one-sided yelling match with plaintiff getting quite vulgar. He also testified that plaintiff had sent him threatening e-mails about possible repercussions should he continue to work with defendant after she became the sole owner of the consulting business. The parties' financial advisor corroborated the accountant's version of events. The advisor testified that plaintiff had sent her e-mails that caused her parent organization to investigate her office's compliance and integrity.
Haynes testified that plaintiff was more likely to bring up conflicts, was argumentative, was very sure of herself, and was intense and would talk over him. He also identified several incidents that demonstrated that plaintiff simply would not accept that her actions were inappropriate.
The trial court also heard testimony that plaintiff had involved SB's orthodontist in the custody dispute by directing the orthodontist's office not to schedule appointments without her permission. Ultimately, the parties' lawyers had to get involved in order to facilitate the scheduling of something as simple as a dental appointment.
In addition to the testimony about plaintiff's tendency to aggressively pursue those who disagree with her course of action, there was testimony that plaintiff repeatedly denied responsibility for conflicts, minimized her own culpability, and blamed others for any conflicts.
Plaintiff also denied engaging in domestic violence against defendant and asserted that she was physically incapable of doing so; she even went so far as to state that it was not in her nature to hit people. Nevertheless, she admitted that she had written in her "fictional memoir" that she had deliberately struck defendant, but maintained that the accounts were not an accurate portrayal of events. She also testified that she had struck defendant during the driving incident while flailing her arms, tussled with her in another incident, and pushed her on her shoulders. But in each case she asserted that it was defendant who was really at fault: defendant had leaned into her flailing arms during the one incident, had approached her and forced her to push her back in the other, or just "pushed her buttons."
When defendant's lawyer questioned plaintiff about the descriptions of domestic violence in her memoir, she responded by questioning his competency to evaluate and comprehend "a writers process with [sic] memoir."
In the end, plaintiff blamed defendant for every conflict. She blamed defendant's failure to settle the various disputes as the cause of the harm that SB had suffered during the custody dispute:
[T]his has been referred to as a high conflict situation, but the source of the conflict is—has been [defendant's] refusal to—to do anything to try to settle it, and that has just been horribly stressful for our daughter. That, this conflict is what's I believe the source of her—her performance in school declining. It's the source of her issues that she does have with weight. It's the source of her—her
acting out behavior towards [defendant]. I—I—and I have tried at every stage to—to—to do anything I could to stop this from happening because I knew the effect it would have on [the child], and on [defendant's] relationship with [her], which I also am concerned about and has deteriorated as far as I can tell terribly as well, so she's just—she's not acting in the—she hasn't acted in [SB's] best interest and the fact that we're sitting here right now I think is probably the biggest—the biggest evidence of that.
The common thread from the testimony and evidence was that plaintiff was aggressive, vindictive, and unable or unwilling to see how her actions led to or perpetuated conflicts. Her own testimony revealed that she would not accept that her actions had any role in the conflicts. Instead, she apparently believed that everyone else's failure to acquiesce to her demands was the source of strife.
Given the record evidence, we conclude that the trial court's finding under factor (l) was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878. Further, although plaintiff argues that she was entitled to an evidentiary hearing before the trial court could consider the letter that SB had written to the court, she does not support this claim with any citation to authority and has thus abandoned this claim. See Mitcham, 355 Mich at 203. And even if the trial court erred by considering the letter, any error was harmless in light of the remaining evidence. See MCR 2.613(A).
The trial court's findings under the best-interest factors were fully supported by the record evidence.
E. PARENTING TIME
Plaintiff argues that the trial court's decision to reduce her parenting time was not in SB's best interests. She further maintains that the change in parenting time amounted to an unwarranted change in physical custody. We disagree.
Parenting time refers to the amount of time that a child spends with each parent. See Lieberman v Orr, 319 Mich App 68, 80; 900 NW2d 130 (2017). A child generally has the right to parenting time, MCL 722.27a(3), which should be "granted in accordance with the best interests of the child," MCL 722.27a(1). Further, "[i]t is presumed to be in the best interests of a child for the child to have a strong relationship with both of his or her parents." MCL 722.27a(1). The trial court should grant parenting time "to a parent 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). The trial court may consider the factors provided under MCL 722.27a(7) and the factors stated under MCL 722.23 when granting parenting time. Lieberman, 319 Mich App at 80-81.
"In a parenting-time matter, when the proposed change would not affect the established custodial environment, the movant must prove by a preponderance of the evidence that the change is in the best interests of the child." Lieberman, 319 Mich App at 84. However, if the change in parenting time alters the child's established custodial environment, the court cannot make the change unless it finds by clear and convincing evidence that the change was in the child's best interests. See MCL 722.27(1)(c). "The custodial environment of a child is established 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).
The trial court reduced plaintiff's parenting time during the school year to include a long weekend on alternating weekends rather than the equal parenting time that had been previously ordered in the interim order, but it continued to provide for roughly equal parenting time over the summer and during school vacations. Although the change in parenting time was significant, it is not evident, and the trial court did not find, that the change would so alter SB's relationship with plaintiff that SB would no longer naturally look to her "for guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c). Consequently, the trial court only had to find by a preponderance of the evidence that the change in parenting time was in SB's best interests. Lieberman, 319 Mich App at 84.
Even if this Court were to conclude that the change in parenting time amounted to a change in the custodial environment under MCL 722.27(1)(c), we would conclude that defendant established that the change was warranted by clear and convincing evidence and that the trial court's failure to identify that standard in its parenting time award does not warrant relief. This Court must presume that the trial court knew the law. Charles A Murray Trust v Futrell, 303 Mich App 28, 44; 840 NW2d 775 (2013). The trial court identified the proper burden of proof in its analysis of the custody dispute and found that defendant had established by clear and convincing evidence that a change in legal custody was warranted. The trial court incorporated its findings under the best-interest factors in its analysis of the parenting time factors. Accordingly, plaintiff has not shown that the trial court committed clear legal error by applying the wrong burden of proof. Fletcher, 447 Mich at 877-878. --------
The trial court analyzed the parenting time factors stated under MCL 722.27a(7) and concluded that most of the factors did not apply. It did, however, express concern that plaintiff would not be able to adhere to a parenting time schedule without repeated intervention by the court. The trial court noted that defendant had had to file a motion to require plaintiff to turn over SB's passport so that she could attend a family function in Spain, and noted that the court had had to resolve other scheduling disputes. The trial court also found that the discord between the parties had increased the strain on SB and warranted less frequent exchanges. Finally, it found that defendant could provide SB with a "stable, peaceful routine" that would benefit her academically.
As already discussed, the trial court's findings under the various best-interest factors were not contrary to the great weight of the evidence. Likewise, the trial court's finding that plaintiff might interfere with defendant's parenting time and that an award of additional parenting time to defendant might better serve SB's academic needs during the school year were not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878. The history of the custody dispute demonstrated that the parties had frequently asked the trial court to intervene on matters involving parenting time. There was evidence that plaintiff had interfered with defendant's parenting time by providing SB with an unauthorized phone and communicating with her during defendant's parenting time, and by encouraging SB to leave the riding barn and go to a friend's house during defendant's parenting time. Finally, there was evidence that SB had struggled academically and that the academic issues arose from the contentious disputes between the parties. The trial court could reasonably find that it was in SB's best interest to award more parenting time to defendant during the school year.
The trial court's findings under the relevant parenting time factors were not contrary to the great weight of the evidence, and it did not abuse its discretion by restricting plaintiff's parenting time to a long weekend on every other weekend during the school year. Fletcher, 447 Mich at 877-878.
F. SOLE LEGAL CUSTODY
Plaintiff also argues that the trial court erred by awarding sole legal custody of SB to defendant. We disagree.
The Legislature requires a trial court to examine the best-interest factors stated under MCL 722.23 and to determine whether an award of joint custody is in the child's best interests. MCL 722.26a(1). Joint custody can mean joint physical custody, joint legal custody, or both joint legal and physical custody. See Dailey v Kloenhamer, 291 Mich App 660, 670; 811 NW2d 501 (2011). Joint physical custody means that the "child shall reside alternately for specific periods with each of the parents." MCL 722.26a(7)(a). Joint legal custody means that the parents "share decision-making authority as to the important decisions affecting the welfare of the child." MCL 722.26a(7)(b). When determining whether joint custody would be appropriate, the trial court must also consider whether the parents "will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child." MCL 722.26a(a)(b).
After making its findings on the various factors, the trial court examined whether it was in SB's best interests to continue joint legal custody. The trial court stated that joint custody was not appropriate where the parties are unable to agree on the basic issues of child rearing and found that the parties in this case were unable to cooperate on the decisions affecting SB's welfare. The trial court recognized that Haynes had recommended joint custody, but it noted that his report contained many examples of disharmony between the parties. It agreed with Ludolph and Erard that Haynes's own report showed that there was no workable solution under which the parties would co-parent. The trial court found that plaintiff loved SB and wanted the best for her, but also stated that it was clear that she could not see any path for SB but the one that she had mapped out for her.
The trial court found that plaintiff was "aggressive, arrogant, impulsive, self-indulgent and lacked self-awareness." She further "presented as a bona fide bully." The trial court found it notable that plaintiff was eloquent and forthcoming when testifying on direct, but could barely remember details and was argumentative on cross-examination. "By contrast," it wrote, defendant was "clear, solemn, and credible . . . ." The trial court found that the conflicts over SB's care were not entirely plaintiff's fault, but "[o]n balance" it was left with the "impression" that defendant had the "firmer grasp on the requirements of co-parenting." It found that plaintiff, on the other hand, could not see that defendant had a necessary role in the SB's life. Accordingly, the trial court found that defendant had proved by clear and convincing evidence that it was in SB's best interests that the court award sole legal custody to defendant.
The primary issue before the trial court was whether SB's best interests would be served by joint legal custody, which in turn depended on the parties' ability to overcome their differences and co-parent. See MCL 722.26a(1)(b). The testimony and evidence demonstrated that the parties had not been and likely would not be able to co-parent. When parents have a "deep-seated animosity" between them that causes them to have an "irreconcilable divergence in their opinions about how to foster [the] child's well-being," joint custody is not appropriate. Wright, 279 Mich App at 299-300, citing MCL 722.26a(1)(b).
It was for the trial court to evaluate Haynes's report and testimony and assign the weight and credibility to be afforded to his opinion. Wright, 279 Mich App at 299. The trial court heard evidence tending to corroborate the concerns that Haynes noted about plaintiff in his report. The trial court rejected Haynes' recommendation based on expert testimony and additional evidence obtained over a 13-day trial. Haynes himself noted that no resolution would likely stop the parties' conflicts. The trial court's finding that it was in the SB's best interests to award sole legal custody to defendant was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
Plaintiff has not established any errors in the trial court's custody and parenting time determinations that warrant relief.
III. JUDICIAL BIAS
Finally, plaintiff maintains that the trial court was biased against her. We disagree. The right to due process includes the right to have an unbiased and impartial decisionmaker for trial. Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012). This Court, however, presumes that the trial court was unbiased "and the party asserting otherwise has the heavy burden of overcoming the presumption." Id.; see also Cain v Dep't of Corrections, 451 Mich 470, 497; 548 NW2d 210 (1996).
Plaintiff argues that the record shows the trial court's actual bias against her. A judge may be subject to disqualification if, in relevant part, the "judge is biased or prejudiced for or against a party or attorney." MCR 2.003(C)(1)(a). In such cases, the party claiming bias must show an actual bias that is both personal and extrajudicial. Cain, 451 Mich at 495. An unfavorable disposition that springs from the events occurring during the litigation can amount to bias if they display a deep-seated favoritism or antagonism that would make a fair judgment impossible. Id. at 496. But not all favorable or unfavorable dispositions or opinions amount to bias or prejudice; the terms connote a favorable or unfavorable disposition or opinion that is wrongful or inappropriate. Liteky v United States, 510 US 540, 550; 114 S Ct 1147; 127 L Ed 2d 474 (1994). A judge who forms an opinion or disposition through knowledge properly and necessarily acquired in the course of the proceedings is not thereby recusable for bias or prejudice. Id. at 550-551. A judge's adverse rulings and comments do not by themselves establish bias or prejudice. Id.
We have carefully examined the incidents that plaintiff cites in support of her claim and conclude that none demonstrate bias. Indeed, the trial court remained remarkably composed despite the contentious nature of the proceedings. Plaintiff has not shown that the trial court's rulings and comments demonstrated a deep-seated favoritism or antagonism for or against either party. Cain, 451 Mich at 496. Further, while the trial court's ultimate findings favored defendant, the findings were fully supported by the record evidence. The trial court formed its opinion or disposition through the knowledge it properly gained during the proceedings. Liteky, 510 US at 550-551. The trial court was professional and allowed both parties considerable leeway to present their proofs. The record does not support the conclusion that the trial court was actually "biased or prejudiced for or against a party or attorney," MCR 2.003(C)(1)(a), or failed to adhere to the judicial canons concerning impropriety and the appearance of impropriety, MCR 2.003(C)(1)(b).
Affirmed.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra