Opinion
No. 337745
11-21-2017
JENNIFER SUZANNE ADKINS, Plaintiff-Appellant, v. DAVID LEE PIECHAN, Defendant-Appellee.
UNPUBLISHED Presque Isle Circuit Court Family Division
LC No. 15-084025-DS Before: M. J. KELLY, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
Plaintiff appeals by right the trial court's order providing for continued joint legal and physical custody of the parties' two minor children. We vacate and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties have two minor children, AP and MP. The parties never married, but lived together until their relationship ended in November 2013. In 2015, plaintiff filed a complaint for child support against defendant. Defendant failed to respond. In July 2015, the trial court entered a consent judgment of support signed by both parties. The judgment stated that "the default of the Defendant is duly entered and the complaint is taken as confessed," and additionally provided that "[t]he parties shall have joint legal and physical custody" of the children and that "[p]arenting time will be as the parties agree." The parties agreed that plaintiff would have the children during the week and defendant would have them on weekends. Approximately three months later, plaintiff filed an ex parte motion requesting the suspension of defendant's parenting time. Plaintiff contended that defendant had given AP a "smart phone" on which plaintiff discovered "what appeared to be 'teen pornography' . . . and bookmarks to teen pornography websites." Further, plaintiff maintained that the children would often come back from defendant's care "dirty and unbathed." The trial court initially granted plaintiff's motion and suspended defendant's parenting time. However, after an evidentiary hearing, the trial court determined that no pornography had been downloaded to the phone's memory, although the browser had been used to visit pornographic websites. The trial court concluded that although the evidence showed that defendant had given AP "a cell phone which had an internet history identifying access to 'teen porn' sites," and was negligent in doing so, the negligence did not result in harm because AP had never viewed the sites. The trial court vacated its order suspending defendant's parenting time.
In early 2016, defendant failed to timely pay his child support and the trial court found him in contempt of court; defendant paid his arrearage before his sentencing date in April 2016. The trial court ultimately placed defendant on probation for six months, during which time another failure to timely pay child support would result in his arrest.
In October 2016, plaintiff filed a motion for sole custody. Plaintiff asserted that defendant had been spending time with a group of underage girls, may have had a sexual relationship with one of them, and may have provided drugs and alcohol to them. Plaintiff also claimed that defendant had taken AP and MP, then aged eleven and five respectively, to a party at which defendant consumed alcohol, and that he then had driven the children home. According to plaintiff, AP had reported that defendant had slapped her on two occasions while screaming and cursing at her, and that defendant had yelled and cursed at both children. Plaintiff also asserted that defendant had struck her with a bag of fast food in front of the children, had denied the children's requests to call her during his parenting time, had failed to insure that the children bathed or changed clothes, had derogated plaintiff in front of the children, and had made the children perform demolition work on a wall without proper protective gear, causing them both to become sick.
The trial court held a two-day evidentiary hearing, the first day of which took place in December 2016. The children's counselor testified that AP had mentioned the teenage girls and had expressed her belief that defendant was dating one of them, that AP had seen defendant hugging and kissing a fifteen-year-old girl, and that AP had taken and showed her pictures of the teenage girls at defendant's home wearing nothing but towels and of defendant and one of them (JW) in bed together. AP had asked defendant "several times" to not have his friends over so that defendant could spend time with AP and MP, but the friends "always ended up there." The counselor indicated that AP's relationship with defendant was strained, and that they "used to be very close." A Child Protective Services (CPS) worker testified that she investigated a July 11, 2016 complaint alleging that defendant had "left the children unsupervised at a family gathering," that defendant was drinking and driving with the children in the car, and that defendant "was possibly engaging in text messages with a child under the age of 16." However, after the investigation the CPS worker was unable to substantiate the allegations by a preponderance of the evidence. The CPS worker also testified that she had investigated defendant's home and that her only concern was "limited food [in the home.] He had said that when the girls come to visit they often eat out. He did have some food in the house. It just wasn't a plethora of food, I guess." The CPS worker testified that they implemented a "safety plan" under which the children could call their mother if they felt scared in defendant's home.
A Presque Isle County Sheriff's Deputy testified that in September 2016 he had located "a couple of Rogers City high school kids," a 17-year-old boy and JW, in the back of defendant's pickup truck at a Family Dollar store. The deputy spoke with the teenagers, who said that "they were skipping school and didn't feel like going to school that day, so they went over to [defendant's] . . . ." The deputy spoke with defendant, who claimed that he had taken the children with him because they had come over to his house as he was getting ready to leave to run some errands. According to the deputy, defendant said that it "really wasn't any of his concern" why they weren't in school. The deputy returned the children to their vehicle, which was parked at defendant's residence.
A deputy and school resource officer at the Rogers City School attended by AP and MP testified that plaintiff had contacted him and told him that JW had been "making contact" with AP in a way that made AP uncomfortable. Again, JW is the girl that AP had photographed in bed with defendant. The officer testified that no action was taken because JW ceased to be enrolled at AP's school shortly thereafter.
The evidentiary hearing was adjourned until February 2017. The trial court granted defendant temporary weekend parenting time. It also ordered defendant not to have anyone under the age of 18 visit the home while AP and MP were there. In January 2016, defendant was delinquent on his child support payments and failed to appear at a show-cause hearing, causing the trial court to issue a bench warrant for his arrest on February 15, 2017.
At the continued evidentiary hearing on February 22, 2017, the counselor testified that since AP and MP had begun visiting defendant again, "[b]oth kids are talking more positive about their dad. Visits about [the] Christmas tree that they sprayed silly string on. Every time I see them they're talking more positively." Additionally, according to the counselor, AP mentioned that defendant's friends came over but did not come inside, and that defendant had told her that friends could come over as long as they were not inside the house. Defendant testified that his friend, 18-year-old Christopher Reeves, had taken the photographs of the teenage girls, with the exception of the picture that AP had taken of defendant in bed with JW, which he characterized as depicting him merely taking a nap in the same bed as the sleeping girl. Defendant vehemently denied having had a sexual relationship with any of the teenage girls who visited his home. He explained:
They would stop — we would go out to the lakes or we would have some sort of agenda. Chris was always with me. My girls love him to death. He's like my right hand man. He works with me; he helps out around the house, so he is always around. Most of his friends I know all their parents.
Everybody is ok with people coming over. They know me. They're fine, I don't buy them alcohol, there's rules and it's usually during the week. They normally don't come on the weekend, unless we have an agenda.
So they would come over — sometimes it started with these two spending the night because one lived in Cheboygan and they didn't go back so they stayed. They had proper bedding. I usually stayed down in my girls — in the living room, because that is where they always sleep.
Plaintiff testified that AP and MP would be emotionally volatile upon their return from parenting time with defendant. They would argue, and MP would "throw temper tantrums." They would be dressed in the same clothing as when they had left for defendant's home, "[s]ame underwear, same clothing, hair would not be brushed, no teeth brushing, no showers," and they would be hungry. Plaintiff testified to an incident in which AP had "pocket dialed" her by accident and that she had heard defendant calling her derogatory names and telling the children that she was "brainwashing" them. Plaintiff testified that MP would return from parenting time and say that she had been "left downstairs alone while he's upstairs partying." Plaintiff testified to the incident in which defendant had struck her in the face with a bag of fast food in front of the children; that confrontation had resulted in her calling the police.
Reeves testified that the young girls were his friends and that he had taken their pictures at defendant's home. Reeves denied that defendant had supplied anyone with marijuana or alcohol.
Following the hearing, the trial court stated that "clearly there is a custodial environment," and that "[t]he girls have been with [plaintiff] for a long period of time now." Continuing, the trial court stated that "the question becomes whether there is a proper cause [or] change of circumstances. And I really don't find that in this record." Nonetheless, the trial court did undertake an examination of the best-interest factors, and found that they did not warrant a change of custody. The trial court then stated that parties should receive "maximum parenting time" except in cases of abuse and neglect, and that "abuse and neglect has not been shown to the Court [by] . . . clear and convincing [evidence], which is the standard by which it would have to be." The trial court entered an order providing that the parties were to retain joint physical and legal custody, and that defendant was to have parenting time according to the standard parenting time guidelines from the Friend of the Court.
This appeal followed.
II. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES
Plaintiff first argues that the trial court erred when it did not find proper cause or a change in circumstances warranting a change in custody. We agree. When reviewing whether a party has "demonstrated proper cause or a change of circumstances," this Court applies the "great weight of the evidence standard." Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009). "Under the great weight of the evidence standard, this Court defers to the trial court's findings of fact unless the trial court's findings clearly preponderate in the opposite direction." Id. (internal quotation marks and citation omitted).
Under the Child Custody Act, MCL 722.21 et seq., where there is an existing custody order, a court may not hold a hearing to evaluate the statutory custody factors unless a party establishes, by a preponderance of the evidence, "proper cause," or a "change in circumstances" sufficient to warrant such reconsideration. Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003). As we stated in Vodvarka:
[T]o establish "proper cause" necessary to revisit a custody order, a movant must prove by a preponderance of the evidence the existence of an appropriate ground for legal action to be taken by the trial court. The appropriate ground(s) should be relevant to at least one of the twelve statutory best interest factors, and must be of such magnitude to have a significant effect on the child's well-being. [Id. at 512.]"[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." Id. at 511. "[I]n order to establish a 'change in 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.
In this case, plaintiff presented evidence that defendant, a 41 year-old man, had been involved in, at a minimum, close friendly relations with several high school girls. There was also evidence that at least one of his daughters had viewed one of those girls in bed with her father and had observed other girls at defendant's home in states of undress. Defendant was also observed assisting high school students in being truant from school; when asked about it, he seemed unconcerned. Defendant admitted to having taken his pre-teen daughters to a party at which he drank alcohol and to having then driven them home, although he denied having been intoxicated at the time. Further, defendant admitted that he did not require the children to bathe or change clothes during their visits. AP had concerns about contacts by one of her father's teenage friends (JW) at her school. MP stated that she was left alone downstairs sometimes while defendant "partied" upstairs. Even under defendant's own version of events, he had allowed Reeves to invite teenage girls over to his house, and had not only allowed JW to sleep in his bed but had slept in the bed next to her on at least one occasion while his children were in the house.
While we recognize that the CPS investigation was unsubstantiated and that defendant has not been proven to have been in a sexual relationship with any of the teenage girls, we conclude that plaintiff carried her burden of showing "appropriate ground(s)" to revisit the custody order that were "relevant to at least one of the twelve statutory best interest factors" and were "of such magnitude to have a significant effect on the child's well-being." Vodvarka v Grasmeyer, 259 Mich App at 513. For example, defendant's relationships with numerous high-school-aged children definitely affected the "love, affection, and other emotional ties" between defendant and his children. MCL 722.23(a). AP told her counselor that she had asked defendant several times not to have his high-school-aged friends over but that he continued to do so despite her pleas; the counselor stated that AP and her father had formerly had a close relationship that was now "strained," although it had slightly improved since the court ordered defendant not to socialize with persons under the age of 18 in his home while having parenting time with his daughters. Additionally, plaintiff's allegations and evidence went to the "moral fitness" of defendant; the trial court heard evidence that at the very least defendant had assisted teenagers in skipping school and that, even under his own version of events, he had allowed an 18 year-old friend to invite 15 and 16 year-old girls to his home and photograph them in states of undress. MCL 722.23(f). Defendant's relationship with one teenage girl in particular (JW) had caused AP to suffer problems at school, potentially impacting her school performance. MCL 722.23(h). And the trial court heard evidence that defendant had committed an act of domestic violence against the children's mother in front of the children. MCL 722.23(k). In sum, we conclude that the evidence presented below clearly preponderates against the trial court's finding that no proper cause or change in circumstances existed, and we therefore reverse that finding. Corporan, 282 Mich App at 605.
III. BEST-INTEREST DETERMINATION AND PARENTING TIME ORDER
Plaintiff also argues that the trial court erred by finding that it was not in the best interests of the children to grant her sole custody. We conclude that the trial court should address this issue afresh on remand.
With regard to our review of a trial court's decision in a child custody case:
The great weight of the evidence standard applies to all findings of fact. A trial court's findings regarding the existence of an established custodial environment and regarding each custody factor should be affirmed unless the evidence clearly preponderates in the opposite direction. An abuse of discretion standard applies to the trial court's discretionary rulings such as custody decisions. Questions of law are reviewed for clear legal error. A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law. [Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citation and quotation marks omitted).]"In child custody cases, [a]n 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." Shade v Wright, 291 Mich App 17, 21; 805 NW2d 1 (2010) (citation and quotation marks omitted, alteration in original).
Notwithstanding its finding that no proper cause or change in circumstances existed, the trial court, at the end of the evidentiary hearing, made reference to several of the best-interest factors found in MCL 722.23. However, it is not clear from the record whether the trial court believed that it was actually conducting a best-interest determination under the proper burden of proof. It was not disputed that the children had an established custodial environment with plaintiff only; therefore, to change the custody order, plaintiff would only have had to demonstrate by a preponderance of the evidence (rather than clear and convincing evidence) that the change was in the children's best interests. See Pierron v Pierron, 486 Mich 81, 93; 782 NW2d 480 (2010). The trial court made no mention of the applicable burden of proof. Indeed, the trial court's remarks regarding the best-interest factors, following as they did on the heels of its determination that no proper cause or change in circumstances had been shown, could easily be viewed as hypothetical. This could explain the cursory treatment the trial court gave to several of the factors, including by stating its belief that no party had challenged the moral fitness of the other, or that domestic violence was not at issue in this case.
Although the consent judgment provided for joint physical and legal custody, a trial court must not "presume an established custodial environment by reference only to" the most recent custody order, but must "look into the actual circumstances of the case." Curless v Curless, 137 Mich App 673, 676-77; 357 NW2d 921, 923 (1984). Here, it was clear from the record, and defendant did not dispute, that AP and MP naturally looked only to plaintiff "for guidance, discipline, the necessities of life, and parental comfort," despite the parties' earlier consent to joint physical and legal custody. MCL 722.27(c).
In any event, if the trial court did indeed conduct a best-interest analysis despite not finding proper cause or change in circumstances, it committed legal error by doing so. Jordan, 241 Mich App at 20. Further, the trial court made no mention of the applicable burden of proof; in fact, the only reference the trial court made to a burden of proof was in reference to a party who is seeking to have another party's parenting time reduced or suspended because of abuse or neglect. MCL 722.27a(3). It is unclear whether the trial court ever applied this burden of proof to either party or whether its statement related to its recitation of the best-interest factors.
Read as a whole, we find enough uncertainty and error in the record before us to conclude that the trial court's ultimate dispositional order in this case was issued as a result of an abuse of its discretion, Shade, 291 Mich App at 21, or based on an incorrect application of the law, Jordan, 241 Mich App at 20. Because we determine that the trial court erred by determining that no proper cause or change in circumstances existed, and because, having made that determination, the trial court's statements concerning best-interest factors were either hypothetical or dicta, and appear to reflect an analysis that was less than complete, we vacate the trial court's order in its entirety and remand for a best-interest determination conducted under the proper standard of proof. On remand, the trial court should consider up-to-date information, including events that have occurred since the entry of its March 13, 2017 custody order. See Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994).
Because we vacate the trial court's order on the grounds specified, we need not address plaintiff's argument that the order impermissibly increased defendant's parenting time. --------
Vacated and remanded. We retain jurisdiction.
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra Court of Appeals, State of Michigan
ORDER
Jennifer Suzanne Adkins v David Lee Piechan Docket No. 337745 LC No. 15-084025-DS Michael J. Kelly Presiding Judge Amy Ronayne Krause Mark T. Boonstra Judges
On its own motion, the Court ORDERS that this case is REMANDED to the trial court for further proceedings consistent with this Court's opinion issued this date. The trial court shall hear and decide the matter within 28 days after the date of this order. Appellant shall cause a transcript of any hearing on remand to be prepared and filed within 21 days after completion of the remand proceedings. We retain jurisdiction.
/s/ Michael J. Kelly
Presiding Judge
A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on
November 21, 2017
Date
/s/_________
Chief Clerk