Opinion
No. 340499
03-15-2018
STACY LYNN SIMMONS, Plaintiff/Counter-Defendant-Appellee, v. ERIC JAMES SIMMONS, Defendant/Counter-Plaintiff-Appellant.
UNPUBLISHED Bay Circuit Court
LC No. 15-007345-DM Before: SAWYER, P.J., and BORRELLO and SERVITTO, JJ. PER CURIAM.
Defendant appeals as of right from an order denying his motion to change custody with respect to his minor child, TS. We affirm.
I. FACTS
TS was born on June 1, 2013. At a custody trial on August 5, 2016, it was established that plaintiff had a history of mental health problems, and that she was in therapy and taking prescription medication. She was working two jobs, a full-time job at a department store and a job at a bar on weekends that she did not have TS. She testified that defendant demeaned her and uttered derogatory remarks toward her, sometimes in the presence of TS.
Melvin Killinger testified against plaintiff at the custody trial. They had been romantically involved but were no longer together. Killinger was a disabled veteran who suffered from post-traumatic stress disorder. Plaintiff denied that he had been her live-in boyfriend, initially characterizing him as a friend, whereas Killinger testified that he was "staying [with plaintiff] constantly[,]" starting a "[c]ouple weeks after he met [plaintiff,]" and that he did so for about four months. Plaintiff later admitted that she had a romantic relationship with Killinger, and that he spent a significant number of overnights with her until she received a no-contact order precluding TS's exposure to romantically involved third parties. Killinger claimed that plaintiff had advised him of suicidal thoughts, that she would sleep in late when she had TS and yell at him, that she had "rants and raves" and mood swings, and that she was not an effective disciplinarian.
The court determined that plaintiff was not "being frank" regarding her relationship with Killinger, but that he was "obviously a disturbed individual with significant mental illness." The court questioned plaintiff's "tastes in men" and cautioned against a continued relationship. Additionally, the court concluded that, with respect to statutory best interests factor (j) (willingness and ability of each parent to facilitate relationship with the other parent), MCL 722.23(j), defendant demeaned plaintiff in front of TS. The court concluded "that joint legal custody is just not possible in light of that conduct[.]" The court also determined that an established custodial environment existed with both parents, and in regard to the remaining statutory best interests factors, the court found that they each weighed equally. The court awarded plaintiff sole legal and physical custody, but ordered that the parties would exercise week-on/week-off parenting time.
On May 24, 2017, defendant moved to change custody, arguing that proper cause or a change in circumstances warranted a reevaluation of custody because: (1) plaintiff had resumed her relationship with Killinger and moved in with him; (2) plaintiff no longer had the financial capacity to support herself and TS; (3) plaintiff discontinued preschool for TS; and (4) defendant's counseling efforts had been successful. Plaintiff acknowledged that she had ceased working at the bar and was no longer employed at the department store, that she and Killinger had moved in together and were engaged, and that he was financially supporting her. Plaintiff testified that TS attended preschool until December 2016 and that he was enrolled for September 2017. Plaintiff testified that she was discharged from psychological treatment around October or November of 2016, and that she had discontinued medication for mental health issues around February or March of 2017. Plaintiff explained her therapist had recommended discontinuing therapy and she "felt everything was easing up and my stress and anxiety were calming down."
Plaintiff testified that Killinger had sought therapy and was using prescription medication to address his own mental health issues. She testified that since moving in with Killinger, she had not witnessed any behavior that would threaten TS's safety or well-being, and she affirmed that TS had been doing well. She claimed that Killinger and TS have "a really awesome" relationship." When asked about a potential "safety plan" for TS in the event she experiences mental health issues, plaintiff explained that she "would give the opportunity to [defendant] first because he is the other parent[,]" and indicated that she and TS could stay with family members. Plaintiff likewise indicated that if Killinger exhibited concerning behavior, she and TS would stay with family members.
Defendant testified that he had completed 20 sessions of therapy since the last time the parties were in court, and that he had been attending sessions for about a year and a half. He explained that he sought therapy to address anger management issues. Defendant testified that he was concerned about what TS would endure if either plaintiff's or Killinger's mental health issues were triggered. Defendant claimed that since plaintiff and Killinger had moved in together, TS had informed him of "a couple times that he doesn't like it when his mom wakes him up in the middle of the night and they have to leave home because of fights." Defendant further explained that TS would cry "usually . . . for the first three days . . ." of defendant's parenting time, because of fights between plaintiff and Killinger.
In denying defendant's motion, the court reasoned that "[m]any people in this world have mental health issues. People need to deal with those mental health issues. If they do . . . deal with those mental health issues, stability can be retained." Further, the court explained, "The . . . only thing I have before me is evidence that [plaintiff] has . . . ceased her treatment because, in the opinion of her therapist and psychiatrist, that was appropriate." With respect to issues involving Killinger and his mental health, the court explained, "The only testimony I have before me is that [Killinger] is . . . treating for those issues, he's able to maintain . . . two jobs that equal a full-time job [.] . . ." Further, the court opined that
[i]t is not unusual, it is not unexpected that when a divorce occurs one or the other or both parents will become involved romantically with someone else. So, the fact that she's now engaged in a relationship in and of itself is not grounds to reexamine this matter. It is not proper cause.
Proper cause would exist if there was a showing that the man was unstable, that he was acting out in ways that would cause a detrimental effect upon the child that could affect his life in an inappropriate way or in a negative fashion.
The only evidence I have before me is that [Killinger] does actively pursue mental health treatment, that he does provide a reasonably safe physical environment.
* * *
There is testimony by [defendant] about fights and that . . . reports that he has to take the child out of the home in the middle of the night because of fights, but I see no evidence that that's been acted upon by [defendant] which makes me question whether it's true, and I do not accept that as true.
I don't find . . . significant facts that show or could show - have a significant or could have a significant effect on the child's well-being and so the motion to revisit the issue of custody is denied.
II. ANALYSIS
"All custody orders must be affirmed on appeal unless the circuit court's findings were against the great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court made a clear legal error on a major issue." Pierron v Pierron, 282 Mich App 222, 242; 765 NW2d 345 (2009); MCL 722.28.
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 Jourdon, 241 Mich App 17, 20; 614 NW2d 183 (2000) (citations omitted).]To find an abuse of discretion with respect to a discretionary custody ruling, "the result must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias." Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Issues regarding the applicable burden of proof are questions of law that are reviewed de novo. Pierron, 282 Mich App at 243. "Which party bears the burden of proof is also a question of law that we review de novo on appeal." Id.
The threshold to "changing custody—finding a change of circumstance or proper cause and not changing an established custodial environment without clear and convincing evidence—are intended to erect a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders." Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2003) (internal quotations omitted). In Vodvarka, this Court set forth the framework for establishing proper cause, and pertinently explained:
In summary, to 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. When a movant has demonstrated such proper cause, the trial court can then engage in a reevaluation of the statutory best interest factors. [Id. at 512.]Further, with respect to establishing a change in circumstances, this Court explained:
[I]n order to establish a "change of 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. Again, not just any change will suffice, for over time there will always be some changes in a child's environment, behavior, and well-being. Instead, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child. This too will be a determination made on the basis of the facts of each case, with the relevance of the facts presented being gauged by the statutory best interest factors. [Id. at 513-514.]
Defendant argued that the following warranted a custody re-evaluation: (1) the fact that plaintiff resumed her relationship with Killinger and moved in with him; (2) the fact that plaintiff no longer had the financial capacity to support herself and TS; (3) the discontinuance of preschool for TS; and (4) defendant's successful counseling. On appeal, defendant focuses on plaintiff's and Killinger's mental health issues and their relationship. Specifically, defendant points to plaintiff's change in address, the fact she has lived with Killinger for an extended period, Killinger's mental health issues, the fact plaintiff ceased treatment for her mental health issues, and the allegation that plaintiff's "safety plan" does not include defendant.
With respect to the "safety plan," plaintiff testified that she would first look to defendant. Defendant's argument appears to be based on a misrepresentation of plaintiff's testimony.
Turning to plaintiff's decision to cease treatment for her mental health issues, the record indicates that she ceased attending therapy sessions with the approval of her therapist. As for discontinuing medication, defendant did not establish that discontinuing medication had resulted in behavior that would give rise to a finding of proper cause or a change in circumstances warranting a change in custody.
In regard to plaintiff's relationship with Killinger and its implications for TS, given both plaintiff's and Killinger's mental health issues, the court determined and the record indicates that Killinger was treating his mental health issues by going to therapy and with prescription medication. There was otherwise no testimony suggesting that Killinger's mental health issues directly and adversely affected TS. As the court indicated, "Proper cause would exist if there was a showing that the man was unstable, that he was acting out in ways that would cause a detrimental effect upon the child that could affect his life in an inappropriate way or in a negative fashion." Moreover, as the court opined, "the fact that she's now engaged in a relationship in and of itself is not grounds to reexamine this matter" and does not amount to proper cause. Defendant failed to establish how plaintiff's relationship and the mental health of both Killinger and plaintiff adversely affect TS.
The circumstances alleged to warrant a reevaluation of custody do not amount to "something more than the normal life changes (both good and bad) that occur during the life of a child," Vodvarka, 259 Mich App at 513. We conclude that the trial court properly applied Vodvarka and correctly determined that defendant failed to establish proper cause or a change in circumstances that would warrant a reevaluation of custody.
Affirmed.
/s/ David H. Sawyer
/s/ Stephen L. Borrello
/s/ Deborah A. Servitto