Opinion
No. 334685
03-21-2017
MELISSA DAWN PIEPER, Plaintiff-Appellee, v. BRIAN THOMAS PIEPER, Defendant-Appellant.
UNPUBLISHED Genesee Circuit Court Family Division
LC No. 12-305017-DM Before: TALBOT, C.J., and MURRAY and BOONSTRA, JJ. PER CURIAM.
Defendant appeals by right the trial court's order granting plaintiff's motion for sole physical custody of the parties' three minor children. Defendant argues that the trial court erred by finding that a change of circumstances or proper cause existed to warrant modification of the parties' existing custody order and by finding that modification of the custody order was in the children's best interests. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties were divorced on June 5, 2013. Plaintiff was initially granted sole legal custody of the parties' minor children. The parties shared joint physical custody of the children, with each parent exercising parenting time on an every-other week basis. On May 29, 2014, plaintiff filed her first motion seeking sole physical custody of the children, alleging grounds different from those at issue in this appeal. The parties reached a settlement with respect to plaintiff's motion, and the trial court entered an order on December 8, 2014 reflecting the parties' agreement. In relevant part, the parties agreed to continue the existing custody and parenting time arrangements, but added the following limitations to defendant's parenting time:
IT IS FURTHER ORDERED AND ADJUDGED that the paternal grandparents shall not provide childcare for the minor children, nor shall the children be left alone in their care.
IT IS FURTHER ORDERED AND ADJUDGED that in the event childcare is necessary during Defendant's parenting time for a period of time in excess of two (2) hours, the minor children shall be in the Plaintiff's care. For
periods of time less than two (2) hours, the Defendant shall provide appropriate third[-]party childcare.
On January 8, 2015, plaintiff filed a second motion for change of physical custody, asserting that defendant failed to abide by the terms of the December 8, 2014 order limiting his parents' interaction with the children. Plaintiff also alleged that the children's guardian ad litem (LGAL), Philip H. Beauvais, had verified information that suggested that the grandfather posed a danger to the parties' children. The parties reached a second settlement without the need for an evidentiary hearing, which was memorialized in an order entered July 17, 2015, providing the following:
IT IS HEREBY ORDERED AND ADJUDGED that the minor children of the parties shall not be in the presence of the paternal grandparents unless the Defendant is present at all times.The order also provided that defendant could arrange child care for the children during the day, provided by individuals who were approved by the LGAL.
IT IS FURTHER ORDERED AND ADJUDGED that the paternal grandparents shall not provide child care at any time for the minor children.
IT IS FURTHER ORDERED AND ADJUDGED that in the event that the Defendant exercises his parenting time overnight at the paternal grandparents' home, the Defendant must sleep in the same room with the minor children.
IT IS FURTHER ORDERED AND ADJUDGED that in the event that the Defendant continues to work evenings, the minor children shall remain with the Plaintiff.
On August 26, 2015, plaintiff filed her third motion for change of physical custody. As she did in her previous motion, plaintiff alleged that defendant continued to ignore the terms of the court's orders. At the evidentiary hearing, the LGAL testified that he had spoken with defendant's aunt, sister, and brother-in-law, who had all told him of "sexual misconduct" (the LGAL did not elaborate on what precisely the misconduct was or who the victims were, although plaintiff later testified that it was defendant's aunt and sister who made the allegations) on the part of defendant's father (the children's paternal grandfather) when they were younger. Additionally, a private investigator testified to performing two investigations of defendant, one in December 2014 and one in September 2015, that included surveillance and the placement of a global positioning satellite (GPS) tracker on defendant's van. The investigator concluded that defendant left the children at his home or at the paternal grandparents' home overnight while he apparently provided taxi services in Ann Arbor on December 9, 2014, December 12, 2014, and December 13, 2014. The investigator also concluded that defendant left the children in the care of their grandparents while he provided taxi services on the night of September 18, 2015. Following the hearing, the trial court entered an opinion and order on August 17, 2016, granting plaintiff's motion and providing limited parenting time for defendant. This appeal followed.
II. STANDARD OF REVIEW
In disputes involving child custody, "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." Dailey v Kloenhamer, 291 Mich App 660, 664; 811 NW2d 501 (2011), quoting MCL 722.28. The trial court's findings of fact are reviewed under the great weight of the evidence standard, id., "which precludes a reviewing court from substituting its judgment on questions of fact unless the facts clearly preponderate in the opposite direction," Riemer v Johnson, 311 Mich App 632, 640; 876 NW2d 279 (2015) (internal quotation marks and citation omitted). The trial court's ultimate ruling regarding a custody dispute is reviewed for an abuse of discretion. Dailey, 291 Mich App at 664. In the context of child custody disputes, "[a]n abuse of discretion exists when the trial court's decision is palpably and grossly violative of fact and logic . . . ." Id. at 664-665 (internal quotation marks and citation omitted). "A trial court commits clear legal error when it incorrectly chooses, interprets, or applies the law." Vodvarka v Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003), quoting Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000).
III. MODIFICATION OF EXISTING CUSTODY ORDER
Before the circuit court can consider modifying an existing custody order, the party seeking modification must prove by a preponderance of the evidence that proper cause or a change of circumstances exists. Dailey, 291 Mich App at 665. Proper cause exists if there is an appropriate ground for the court to take legal action, i.e., a ground that is relevant to at least one of the statutory best interest factors and has a significant effect on the child's wellbeing. Id. "Similarly, to establish a change of circumstances, the 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., quoting Vodvarka, 259 Mich App at 513.
In its opinion and order, the trial court found that defendant's "ongoing failure to follow the Court's orders, which were put in place to protect the children from risk of harm, constitutes proper cause or change in circumstances." Generally, "minor allegations of contempt" are insufficient to establish a change of circumstances or proper cause to consider modifying custody. Vodvarka, 259 Mich App at 509-510, citing Adams v Adams, 100 Mich App 1, 13; 298 NW2d 871 (1980). However, defendant's actions in this case related to orders that were put in place for the children's protection. Thus, the court's finding was not premised solely on a defendant's failure to follow those orders, but on how that failure affected the safety of the children.
A finding of proper cause "is geared more toward the significance of the facts or events or . . . the appropriateness of the grounds offered." Vodvarka, 259 Mich App at 515. Additionally, this Court has observed that in rare situations an event or fact that arose before entry of the last custody order may be of such significance that it can constitute proper cause to consider modifying child custody. Id. The parties were not aware of the paternal grandfather's alleged sexual misconduct until after the original custody order was entered on June 5, 2013, although the misconduct had allegedly occurred years prior. Thus, the circumstances presented by this case are among the rare situations in which it was appropriate for the court to consider a matter that existed before entry of the last custody order. Moreover, the parties agreed that the allegations were serious enough to impose safety measures to avoid the possibility of sexual misconduct directed toward the children. Given the seriousness of the allegations and defendant's alleged failure to comply with the agreed upon safety measures, the trial court did not err by finding by a preponderance of the evidence that proper cause existed to revisit the parties' custody arrangement.
IV. BEST-INTEREST DETERMINATION
After the party seeking to modify a custody order establishes the requisite proper cause or change of circumstances, the trial court may reconsider an existing custody arrangement to determine whether modification would be in the child's best interests. Dailey, 291 Mich App at 666-667. The burden of proof applicable to the custody hearing depends on the effect modification would have on the child's established custodial environment. Id. An established custodial environment exists 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. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [Demski v Petlick, 309 Mich App 404, 445; 873 NW2d 596 (2015), quoting MCL 722.21(1)(c).]If the proposed modification would change the child's established custodial environment, it is incumbent upon the moving party to provide clear and convincing evidence that modification would be in the child's best interests. Phillips, 241 Mich App at 25. If, on the other hand, modification would not alter the child's established custodial environment, the moving party need only prove by a preponderance of the evidence that modification would be in the child's best interest. Pierron v Pierron, 486 Mich 81, 93; 782 NW2d 480 (2010).
The trial court found that an established custodial environment existed with both parents, and defendant does not challenge this finding on appeal. Although the trial court did not expressly state as much, it can be inferred that the court determined that the proposed physical custody modification would alter the children's dual established custodial environments because it applied the heightened burden of proof to plaintiff's motion. This conclusion is supported by the great weight of the evidence, as the proposed modification drastically decreased the amount of time that the children would be in defendant's care. That is, rather than spending equal time with each parent, the children's time with defendant would be limited to every-other weekend and approximately two weekday nights each month. As such, it would be natural for the children to rely primarily on plaintiff, rather than both parents, for guidance, discipline, the necessities of life, and parental comfort. Because the proposed modification would likely disrupt the children's established custodial environments, it was incumbent upon plaintiff to prove by clear and convincing evidence that the modification was in the children's best interests. Phillips, 241 Mich App at 25.
In determining whether modifying custody is in the children's best interests, the court must consider each factor set forth in MCL 722.23 and, at minimum, make factual findings regarding the applicability of each factor. Pierron, 486 Mich at 91. The trial court found that the majority of the best interest factors favored the parties equally or were inapplicable, and that factors (c) (parties' capacity and disposition to provide for children's material needs) and (l) (any other relevant consideration) favored plaintiff. On appeal, defendant challenges the trial court's findings relative to these two factors.
With respect to factor (c), defendant contends that there was no evidence presented that the children were not properly provided for while in his care. Defendant's argument is somewhat misguided, as factor (c) directs the court to look at the parties' "capacity and disposition" to provide for the children. MCL 722.23(c). Thus, there is nothing in the plain language of the statute that limits a court's consideration to the parties' history of providing for the children's material needs. Moreover, the court's findings regarding this factor are supported by the record. Defendant provided vague testimony about taking "side jobs," and digging post holes on a part-time basis, and acknowledged that he managed his finances by living "thinly," and receiving some support from his parents. In light of this testimony, the court reasonably found that defendant's ability to provide for the children in a material sense was questionable. By contrast, although plaintiff also testified that she had not worked much since she remarried in January, 2015, she explained that she was a stay-at-home mother and provided full-time child care for her stepchildren. There was no testimony offered concerning plaintiff's finances, but it can be inferred that her household income was significant enough to allow her to comfortably remain unemployed. The trial court did not err by finding that factor (c) favored plaintiff slightly.
With respect to factor (l), the trial court considered "the willingness of either party to adhere to the [c]ourt's orders," and found the following:
By his own admission, Defendant has violated the [c]ourt's orders on multiple occasions. His excuses for doing so include his misunderstanding of the order, that he did not read it, that he is not a detail person, and that he suffers from dyslexia.
In addition to the times Defendant admitted his violations, testimony and evidence presented support the conclusion that this was not a rare occurrence, and in fact that Defendant was leaving the children with unapproved third-party child care as recently as the month of this trial. One of Defendant's child care providers, Marilyn Woodward, stated to the LGAL [guardian ad litem] in approximately February or March 2016 that she was not going to lie, that she sometimes watches the children at Defendant's home.
The parties have been in court on multiple occasions due to allegation [sic] that Defendant was in violation of the [c]ourt's orders. He believes he can pick and choose which provisions are important enough to be followed, and which he may ignore. Defendant states that these orders were entered in order to "appease" Plaintiff, however, this diminishes the seriousness of the concerns held by both the Plaintiff and the LGAL.
This [c]ourt has little faith in Defendant's ability to follow the current order, and questions whether he will follow any order of the Court given the fact
that he has repeatedly show [sic] his willingness to do what he wants instead. A party's refusal or inability to adhere to the court's orders is cause for concern about the children's well-being under even the best of circumstances. Given the extremely concerning allegations involved with the paternal grandfather, and given the serious harm that potentially could come to the children if Defendant were to ignore this order, the [c]ourt finds that this factor very strongly favors Plaintiff.
While a party's failure to abide by court orders, standing alone, is not an appropriate consideration under the best-interest factors, Maier v Maier, 311 Mich App 218, 227; 874 NW2d 725 (2015), because "[c]hanging custody . . . is not the proper means for enforcing the court's decree or punishing [a party] for contempt," Kaiser v Kaiser, 352 Mich 601, 603; 90 NW2d 861 (1958), as noted by the trial court, defendant's noncompliance raised concerns that the children could potentially be exposed to a risk of serious harm. Although defendant's failure to comply with court orders alone is not an appropriate consideration, there can be little doubt that it is not in the children's best interests to be placed at risk of sexual misconduct or abuse. The trial court heard testimony that supported the conclusion that defendant continued to leave his children in the care of his parents despite repeated court orders not to do so. In addition to the allegations of sexual misconduct, the settlement agreement entered into voluntarily by defendant in December 2014 indicated that the paternal grandparents' poor health made them unable to provide child care for extended periods. Nonetheless, defendant continued to rely on his parents for childcare. In light of the number of orders and motions in which this issue was raised, it strains belief that defendant simply missed the trial court's directive due to not reading closely enough.
The LGAL interviewed the children several times and each child indicated that they spent time with the paternal grandparents, though the LGAL was unsure, in light of the children's young ages, whether the children meant that the paternal grandparents babysat them on their own, or whether defendant remained with them throughout their visits. And the private investigator testified to his conclusion that defendant had left the children with his parents overnight on at least a few occasions after the entry of numerous court orders forbidding such conduct for the safety of the children. Defendant denied that he allowed his parents to provide overnight child care after entry of the previous court orders. However, the trial court found defendant's testimony not credible, and we defer to the trial court's credibility determinations. Demski, 309 Mich App at 445.
Although, as already noted, defendant's failure to abide by the terms of court orders, by itself, is not an appropriate basis for modifying custody, Kaiser, 352 Mich at 603; Maier, 311 Mich App at 227, we conclude that in light of the evidence that defendant's violation of the particular court orders in this case increased the risk of danger to the children, the trial court's conclusion that factor (l) strongly favored plaintiff was not contrary to the great weight of the evidence.
Considering the sum total of the statutory best-interest factors, we conclude that the trial court did not abuse its discretion by finding that modification of the parties' custody arrangement was in the children's best interests. Although the trial court's best-interest analysis is not subject to a mathematical balancing, Riemer, 311 Mich App at 645-646, the trial court's findings regarding factor (c) and factor (l) were supported by clear and convincing evidence, and the remaining factors are not challenged on appeal. We therefore hold that the trial court did not err by modifying the parties' previous custody order to grant plaintiff sole physical custody.
Affirmed.
/s/ Michael J. Talbot
/s/ Christopher M. Murray
/s/ Mark T. Boonstra