Opinion
No. 339436
03-20-2018
ETHEL MBOMBOW, Plaintiff/Counter-Defendant/Appellee, v. HERBERT FOGHA MOMA, also known as HERBERT MOMA FOGHA, Defendant/Counter-Plaintiff/Appellant.
UNPUBLISHED Oakland Circuit Court
LC No. 2016-840854-DP Before: TALBOT, C.J., and BECKERING and CAMERON, JJ. PER CURIAM.
Defendant, Herbert Fogha Moma, also known as Herbert Moma Fogha, appeals as of right from an order of filiation that serves as a final order for other custody and parenting-time issues. On appeal, defendant challenges the trial court's rulings, made after a two-day bench trial, that the minor children at issue have an established custodial environment with plaintiff, Ethel Mbombow, and that defendant's request for equal parenting time with plaintiff would change the established custodial environment. Defendant also challenges the trial court's analysis of the parenting-time factors found in MCL 722.27a(7). We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
On April 5, 2016, the Oakland County Prosecutor's Office filed a paternity complaint on behalf of plaintiff. The complaint asked the trial court to enter a "Judgment of Filiation" establishing the paternity of ANM, and to order defendant to pay child support for NNM. On June 2, 2016, defendant filed an answer and a counterclaim to plaintiff's complaint in propria persona. In his counterclaim, defendant asked the trial court to "Establish/Confirm Paternity, Custody, Visitation, and Child Support against Plaintiff[.]" Subsequently, defendant retained counsel and on July 25, 2016, defendant's counsel filed an amended answer to plaintiff's complaint and a counterclaim. In his amended answer, defendant asserted his belief that he was the biological father of NNM, ANM, and NM, and he asked the trial court, among other things, to enter an order establishing his paternity of all three children, to grant him joint legal and physical custody of the children, and to award the parties equal parenting time.
The trial court ultimately determined that defendant lacked standing to bring an action to establish paternity for NM, who was born during plaintiff's marriage with defendant's brother, Cletus Moma ("Moma"). NM was not born out of wedlock, and thus the presumption of legitimacy attached, In re KH, 469 Mich 621, 624-625; 677 NW2d 800 (2004), and defendant had not filed a motion pursuant to the Revocation of Paternity Act, MCL 722.1431 et seq. Defendant does not appeal this ruling. --------
On October 6, 2016, the trial court entered an interim custody and parenting-time consent order regarding NNM, ANM, and NM. Under the order, the parties shared joint legal custody of NNM, ANM, and NM. The court ordered plaintiff to take the children to school in the mornings, and ordered defendant or defendant's father to pick them up after school. The trial court also awarded defendant parenting during the school year every Tuesday after school until 7:30 p.m., every Thursday after school until the start of school the next morning, and every other weekend from after school on Thursday until school resumed on Monday morning. Defendant's summer parenting time was essentially the same, with the addition of two, non-consecutive weeks of parenting time. The order also addressed holiday parenting time, transportation, and communication.
The trial court held a bench trial over two non-consecutive days to resolve the remaining disputed issues of physical custody and parenting time. Although the parties agreed on joint legal custody of NNM and ANM, plaintiff sought an order awarding her primary physical custody and defendant specific parenting time on alternating weekends, alternating holidays, and during the summers, and defendant sought an order awarding the parties joint physical custody and equal parenting time.
Relative to the case at bar, plaintiff testified at trial that she and defendant had lived together in what defendant described as an "on and off" relationship from 2002 until 2012, with the exception of one year she spent attending physician's assistant school in Pennsylvania. NNM and ANM were born early during the parties' period of cohabitation. Plaintiff testified that after she returned to Michigan from Pennsylvania, she and defendant lived with the children in Bloomfield Hills until 2012. During that time, defendant frequently traveled to Colorado, where he had established a business.
Plaintiff testified that they lost the Bloomfield Hills house to foreclosure in 2012, and when she asked defendant if they could "look for a place together," he refused. Consequently, plaintiff moved with the children to a rented condominium in Rochester Hills, and defendant relocated to Denver. According to plaintiff, the last time she received money from defendant was in July 2012; up until that time, she had been satisfied with defendant's contributions to the household expenses. However, plaintiff testified that while she lived in Rochester Hills, she paid the rent and provided health insurance, food, clothes, and transportation for the children, all without financial assistance from defendant.
In August 2015, plaintiff purchased a condominium in Southfield and moved there with NNM, ANM, and NM. She testified that 2015 was "a tough year" for NNM and ANM. ANM had outbursts at school and was "very angry." In response, plaintiff took ANM for counseling "at Perspectives of Troy." NNM would cry at night because of missing defendant. Plaintiff testified that both children missed defendant, wanted to see more of him, and felt a sense of rejection. She said that defendant visited the children four times between 2012 and 2013 and took them to Denver for two weeks during the summer of 2013. Thereafter, defendant visited the children annually at the end of the year, and telephoned them occasionally.
Defendant moved back to Michigan in January 2016. At the time, there was no custody or parenting-time order in place, and an issue arose between the parties regarding when defendant could take the children for overnight visits. According to plaintiff, she did not object to defendant picking the children up from school and taking them to the house his sister, Beatrice, shared with his parents, as per the children's usual schedule. However, plaintiff's condition for allowing defendant to take the children overnight was that he give her the address and telephone number of where he was taking them. When defendant refused to comply with plaintiff's condition, she refused to allow him to take the children. On one occasion when defendant picked the children up from school and took them to his hotel to spend the night, plaintiff located the hotel and retrieved the children.
Plaintiff testified that from entry of the trial court's custody and parenting-time order on October 6, 2016, until the first day of the bench trial on February 9, 2017, defendant had exercised his parenting time twice, for a total of four overnights. She further testified that she frequently helped NNM, ANM, and NM with their homework, and that they always ate dinner with her at their home. She said she attended and paid for NNM's extracurricular activities of theater, music, and volleyball, and confirmed that she had not seen defendant attend any rehearsals or events for NNM. Plaintiff reported that she attended ANM's football games and practices, and that defendant took ANM to one practice and attended one of ANM's games. According to plaintiff, defendant had never gone to any of the children's medical appointments, and that while she frequently attended "parent/teacher conferences," she had never seen defendant at any of the conferences. She said she thought that defendant loved NNM, ANM, and NM, and that the children should have a strong relationship with him.
The thrust of defendant's testimony was that the children had spent considerable time with him, even after the parties separated in 2012, and that they looked to him for guidance and discipline. Although plaintiff had testified that NNM and ANM lived with Beatrice and defendant's parents in Oak Park while she was attending school in Pennsylvania, defendant testified that they lived with him on "Appoline" in Detroit, and that he was solely responsible for providing NNM and ANM with food, shelter, and care. He testified that, even after he moved to Denver, he spent a couple of weeks every month in Michigan, and that the children stayed with him at his hotel. With regard to supporting the children financially after 2012, defendant testified that plaintiff used his Costco card and his Restaurant Depot Card until 2015, although he admitted on cross-examination that had brought no receipts to substantiate this claim.
Defendant testified that when he returned to Michigan in 2016, he and the children actually lived at Beatrice's and that he provided the children with food and clothing, and contributed toward the bills and maintenance of Beatrice's house. Specifically, defendant stated that he bought most of the clothing the children wore, and that when plaintiff "sen[t] the kids, she sen[t] them in rags." Defendant stated that he bought the children iPods, computers, an inflatable pool, and in fact, anything they wanted whenever they wanted it. He further testified that he was the one taking ANM to football practice, and that when the team had a game, plaintiff would "drop them over and then, [ANM] would spend the night over" so that defendant could take them to the football game. He also asserted that he attended parent/teacher conferences for all three children.
Defendant opined that the trial court should order equal parenting time via alternating parenting time weekly, and he believed that this proposed schedule would be convenient because he lived in close proximity to the children's school. He stated that plaintiff had actually accepted an equal parenting-time schedule and expressed his concern that the children would "be on the streets because of their behavior and what he characterized as their "identity" crisis.
In a detailed written opinion and order, the trial court issued the findings and rulings from which defendant now appeals. The trial court found that the children had an established custodial environment with plaintiff and that defendant's proposed equal parenting-time schedule would alter the established custodial environment. Consequently, the court concluded that to prevail on his request for equal parenting time, defendant had to show by clear and convincing evidence that his parenting-time proposal was in the best interests of the children. After analyzing the best-interest factors and interviewing NNM and ANM in camera, the trial court found that defendant had not met his evidentiary burden, and that the evidence preponderated toward awarding plaintiff sole physical custody. The court also found, after analysis of the relevant parenting-time factor, that plaintiff's request to reduce defendant's parenting time was in the minor children's best interest. The trial court issued a corresponding order. Defendant filed a motion for reconsideration, which the trial court subsequently denied.
II. ANALYSIS
A. ESTABLISHED CUSTODIAL ENVIRONMENT
Defendant contends that the trial court erred when it found that the minor children had an established custodial environment with plaintiff, and that awarding defendant equal parenting time would change the established custodial environment. We disagree. This Court will affirm a trial court's findings "regarding the existence of an established custodial environment . . . unless the evidence clearly preponderates in the opposite direction." Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008).
Under the Child Custody Act, MCL 722.21 et seq., "all orders and judgments of the circuit court 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. A court cannot enter a new custody order or amend an existing custody order without first determining if there is an established custodial environment. MCL 722.27(1)(c). "Whether an established custodial environment exists is a question of fact that the trial court must address before it makes a determination regarding the child's best interests." Mogle v Scriver, 241 Mich App 192, 197; 614 NW2d 696 (2000). "The established custodial environment is the environment in which 'over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.' " Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d 480 (2010), quoting MCL 722.27(1)(c). A court may not modify or amend a previous order "or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child." MCL 722.27(1)(c).
We find that the record supports the trial court's determination that NNM and ANM have an established custodial environment with plaintiff alone. The record shows that the parties lived together when the children were born and for several years thereafter, except for the year plaintiff spent in Pennsylvania. After cohabitating for a decade, the parties ceased living together in 2012. The evidence shows that defendant visited the children periodically in 2012 and annually from 2013, and that he telephoned them at unscheduled intervals. However, since 2012, the children have lived exclusively with plaintiff, who has provided them with a stable home and all of their daily care. Further, the record evidence shows that plaintiff participated in and facilitated the children's academic and extracurricular activities and took them to medical and dental appointments. Although defendant testified that he took ANM to football practice and football games and attended parent/teacher conferences, the trial court also heard testimony to the contrary. "We defer to the trial court's credibility determinations given its superior position to make these judgments." Shann v Shann, 293 Mich App 302, 305; 809 NW2d 435 (2011).
Defendant contends that the trial court should have found an established custodial environment with both parties because the parties lived together with NNM and ANM during the first several years of the children's lives, the children's established custodial environment since 2016 included parenting time and phone calls with defendant, and plaintiff interfered with defendant's parenting time. None of these arguments is persuasive.
Defendant bases his initial argument on the assumption that once established, an established custodial environment does not change. However, this is not true; an established custodial environment can be destroyed. See, e.g., Baker v Baker, 411 Mich 567, 580-581; 309 NW2d 532 (1981). Thus, assuming arguendo that an established custodial environment existed with both parents prior to 2012, the evidence shows that since 2012, NNM and ANM have lived exclusively with plaintiff, and that it is she who has provided them with stability and care and been the daily source of "guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c). That the facts support the trial court's finding of an established custodial environment with plaintiff does not change with consideration of defendant's increased involvement with the children since his return to Michigan in 2016.
Moreover, defendant fails to explain how his contention that plaintiff interfered with his parenting time after his return to Michigan preponderates against the trial court's finding of an established custodial environment with plaintiff. An appellant may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim. Ambs v Kalamazoo Co Rd Comm, 255 Mich App 637, 650; 662 NW2d 424 (2003). "Generally, where a party fails to brief the merits of an allegation of error, the issue is deemed abandoned by this Court." Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002) (quotation marks and citation omitted). Because the evidence does not preponderate in the direction opposite the trial court's findings, we affirm the trial court's findings that NNM and ANM have an established custodial environment with plaintiff. Berger, 277 Mich App at 705.
Defendant next contends that the trial court erred when it concluded that granting the parties equal parenting time would change the established custodial environment. Defendant argues that where the children sleep during alternating weeks would not create a change in the custodial environment because the children "would still have the ability to seek guidance, comfort, and support from the mother, whether in person or by phone." He further contends that the trial court erred in evaluating the minor children's best interests pursuant to MCL 722.23, and that a correct evaluation of the factors would show that defendant's proposed change in parenting time would not affect a change in the established custodial environment.
Defendant cites no authority for his conclusory proposition that changing where a child sleeps during alternating weeks would not change the established custodial environment. An appellant may not give issues cursory treatment with little or no citation of supporting authority. Goolsby v City of Detroit, 419 Mich 651, 655; 358 NW2d 856 (1984); see also Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) ("Argument must be supported by citation to appropriate authority or policy."). More significantly, by reducing the concept of established custodial environment to where a child spends his or her time, defendant's argument misses the point. An established custodial environment is one of significant duration, both physical and psychological, in which the relationship between the custodian and child is marked by security, stability, and permanence. Berger, 277 Mich App at 706. Defendant's proposed equal parenting-time schedule would alter the established custodial environment the children have with plaintiff by disrupting the physical stability and permanence they have enjoyed with plaintiff for an appreciable time, as well as by changing the character of their interactions with plaintiff. See, e.g., Lieberman v Orr, 319 Mich App 68, 91-92; 900 NW2d 130 (2017).
Lastly, defendant misunderstands the relationship between the trial court's determination of whether an established custodial environment exists and its analysis of the best-interest factors found in MCL 722.23. Defendant contends that had the trial court evaluated the best-interest factors correctly and found that they favor the parents equally, then awarding the parents equal parenting time would not have changed the established custodial environment. The implication of defendant's argument is that analysis of the best-interest factors somehow determines the existence of an established custodial environment; in other words, his argument implies that if the best-interest factors favor the parties equally, the children have an established custodial environment with each parent that an award of equal parenting time would not change. However, analysis of the best-interests factors does not result in a determination regarding whether there is an established custodial environment. Whether there exists an established custodial environment is a question that the trial court must decide before it makes a determination regarding custody or considers a change in parenting time, Demski v Petlick, 309 Mich App 404, 445; 873 NW2d 596 (2015), and thus independently of its analysis of the best-interest factors. Once the trial court determined that the children have an established custodial relationship with plaintiff, to obtain an award of equal parenting time, defendant had to present clear and convincing evidence that such award was in the best interests of the children. Thus, even if the trial court had determined that the best-interest factors favored the parties equally, this would not have constituted the clear and convincing evidence defendant needed to prevail on his parenting-time request.
In conclusion, defendant has not shown that the evidence clearly preponderates against the trial court's determination that the children have an established custodial environment with plaintiff and that defendant's proposed equal parenting-time change would alter it. Accordingly, we affirm the court's findings. Berger, 277 Mich App at 705.
B. PARENTING TIME
Defendant contends that the trial court erred when it evaluated the parenting time factors provided by MCL 722.27a(7). Again, we disagree. This Court must affirm orders concerning parenting time on appeal "unless the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Maier v Maier, 311 Mich App 218, 229; 874 NW2d 725 (2015) (quotation marks and citation omitted).
A trial court must grant parenting time "in accordance with the best interests of the child[,]" and should award parenting time "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). In determining an award of parenting time, a court may consider the factors set forth in MCL 722.27a(7), which provides in relevant part:
(7) The court may consider the following factors when determining the frequency, duration, and type of parenting time to be granted:
* * *
(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
The trial court's analysis of the parenting-time factors occurred in the context of plaintiff's request to eliminate defendant's Thursday-night parenting time because he did not exercise it. The only factor the trial court found pertinent to this issue was MCL 722.27a(7)(f), relative to which the trial court found that defendant had not exercised the Thursday-night parenting time awarded to him by the trial court's October 2016 interim parenting-time consent order. The court further found that while defendant had contended that plaintiff interfered with his parenting time, defendant had failed to present any credible evidence in support of his contention.
Defendant argues that the trial court's finding was erroneous because plaintiff testified at trial that she withheld the children when defendant would not tell her where he was taking them for overnights. However, the trial court's finding plainly refers to the period subsequent to the October 2016 entry of the court's interim parenting-time order, while plaintiff's testimony refers to the period before then. Thus, the trial court's finding was not erroneous.
Defendant also contends that the trial court should have considered MCL 722.27a(7)(e) and (g). However, neither of these was relevant to plaintiff's request for elimination of defendant's Thursday-night parenting time. Defendant argues that the trial court should have made findings relative to (7)(e) because, since he lives in an apartment that is a short walk from the minor children's school, increasing his parenting time would have decreased the burden on plaintiff. However, because the trial court was no longer considering defendant's equal parenting-time proposal, and the parties did not dispute whether plaintiff's proposed change in parenting time would burden the children, there was no need for the trial court to consider this factor. See Sturgis v Sturgis, 302 Mich App 706, 710; 840 NW2d 408 (2013) ("When a trial court makes a parenting-time decision, it may limit its findings to the contested issues."). Similarly, defendant asserts that the trial court should have considered (7)(g) because if defendant failed to exercise parenting time once he returned to Michigan, it was because plaintiff thwarted his efforts. Defendant contends that he did not file a motion for enforcement of the parenting-time order because he wanted to "keep the peace" with plaintiff. However, absent evidence of plaintiff's refusal to allow defendant to exercise the parenting time to which the October 6, 2016 order entitled him, defendant's claim is a matter of credibility, and on issues of credibility, we defer to the trial court. Shann, 293 Mich App at 305.
Defendant asserts that the court should have found that the aforementioned factors favored him, and awarded him liberal parenting time to ensure that he is able to build a strong relationship with his children. However, defendant does not argue in what way the trial court's actual award of parenting-time is insufficient to promote such a relationship. MCL 722.27a(1). Nor has he shown that "the trial court's findings were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue." Maier, 311 Mich App at 229.
Affirmed.
/s/ Michael J. Talbot
/s/ Jane M. Beckering
/s/ Thomas C. Cameron