Opinion
No. 340252
04-19-2018
LAMAR LEON VINING, Plaintiff-Appellant, v. KYMBERLY LARAI MALONE, Defendant-Appellee.
UNPUBLISHED Washtenaw Circuit Court
LC No. 11-001788-DC Before: O'BRIEN, P.J., and CAVANAGH and STEPHENS, JJ. PER CURIAM.
In this custody dispute, plaintiff, Lamar Leon Vining, appeals by right the trial court's opinion and order granting the request of defendant, Kymberly Larai Malone, to move the domicile of the minor children, MBV and LLV, to Atlanta, Georgia, and setting parenting time. For the reasons explained below, we affirm.
I. BASIC FACTS
Vining sued Malone for custody of the children in July 2011, and Malone countersued for custody in August 2011. The parties were never married but lived together until an incident in 2011. After the incident, Vining took the children and moved to his parents' home.
In February 2014, after more than two years of contentious litigation, the parties agreed to a consent order governing custody, parenting time, and child support. The order provided for joint legal and physical custody of the children and precluded either party from altering the legal residence of the children by more than 100 miles without the court's permission. The order also established equal parenting time for the parties on alternating weeks and holidays and provided that neither party had to pay child support.
In September 2016, Malone moved for a change in custody. She alleged that Vining was engaged in parental alienation and had caused Child Protective Services (CPS) to investigate her on six occasions. She indicated that she intended to move to Georgia for better employment and to be closer to family. She further claimed that MBV, who had a medical condition, would benefit from a warmer climate because her condition was exacerbated by cold weather. She asked the trial court to order that the children remain with her throughout the school year and that they be with Vining during the summer break.
The trail court held an evidentiary hearing on the motion over three days in May and June 2017.
In July 2017, the trial court entered an opinion and order. The court found that Malone had demonstrated by a preponderance of the evidence that the change in domicile was in the children's best interests pursuant to the factors in MCL 722.31(4). The trial court then found that the children had an established custodial environment with both parents. As such, it determined that Malone had to demonstrate by clear and convincing evidence that the change in domicile was in the best interests of the children pursuant to the best-interest factors in MCL 722.23. The court determined that Malone had carried that burden and ordered changes in parenting time to accommodate the change in domicile.
Vining then appealed in this Court.
II. DOMICILE FACTORS
A. STANDARD OF REVIEW
Vining first challenges the trial court's findings and conclusion that Malone established grounds for changing domicile under MCL 722.31.
In child custody disputes, this Court reviews the trial court's factual findings by examining whether the findings are against the great weight of the evidence. Fletcher v Fletcher, 447 Mich 871, 877-878; 526 NW2d 889 (1994). 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. Id. at 878. This Court reviews a trial court's discretionary rulings in a custody dispute for a palpable abuse of discretion. MCL 722.28. A palpable 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, this Court reviews de novo the trial court's application of the law to the facts. Kaeb v Kaeb, 309 Mich App 556, 564; 873 NW2d 319 (2015).
B. ANALYSIS
The Legislature has authorized trial courts to resolve custody disputes that arise in an original action or incidentally from another action by awarding custody, providing for the payment of child support, and determining reasonable parenting time that is in the best interests of the child or children. See MCL 722.27(1); Kaeb, 309 Mich App at 566-567. In this case, the parties resolved their initial custody dispute by stipulating to the entry of an order providing for joint legal and physical custody of the children, and establishing a parenting-time schedule. The parties operated under this order until Malone moved for permission to relocate the children to Atlanta, Georgia.
The Legislature prohibited "a parent of a child whose custody is governed by court order" from changing the child's "legal residence . . . to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued." MCL 722.31(1). A child has a legal residence with each parent whose parental custody is governed by court order. MCL 722.31(1). However, the Legislature gave trial courts the discretion to permit a change of domicile to a location that is more than 100 miles from the child's legal residence. In making its decision, the trial court must consider several factors "with the child as the primary focus" of the court's deliberations. MCL 722.31(4). The relevant factors are:
(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.The party requesting the change in domicile bears the burden of establishing that the change is warranted under the factors by a preponderance of the evidence. Rains v Rains, 301 Mich App 313, 326-327; 836 NW2d 709 (2013).
(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. [MCL 722.31(4).]
1. FACTOR (a)
In considering whether the proposed change in legal residence had "the capacity to improve the quality of life for both the child and the relocating parent," MCL 722.31(4)(a), the trial court found that the move "would greatly improve" Malone's and the children's quality of life. It stated that Malone had a job offer that provided the opportunity for Malone to advance her career, would allow her to work one job instead of three, and would improve the family's finances. The court also noted that Malone's only biological immediate family member lived in Atlanta with his family, which would provide some family network in the area of the proposed move. The court also found that Atlanta's warmer climate would improve MBV's quality of life because her medical condition would no longer be exacerbated by Michigan's cold temperatures.
On appeal, Vining implies that the trial court erred when it found that Malone and her children would benefit financially by the move to Atlanta because Malone never substantiated her claim that she had a job prospect in Atlanta.
Malone did not testify that she had a job prospect in Atlanta; she testified that one of her current employers—MSC Vending Services—was allowing her to transfer her current position to Atlanta. She explained to the trial court that, because the "main department"—the "branch and our warehouse"—was in Atlanta, she would have the "ability to move up." She further stated that she would get an immediate pay increase from $41,000 per year to $55,000 per year after the move, and she testified that her cost of living appeared to be lower in Atlanta. Vining provides no authority to support his argument that Malone had to substantiate her employment with documentation before the trial court could rely on her testimony. The trial court was entitled to rely on Malone's testimony about her employment and economic prospects, and we defer to the trial court's assessment of the weight and credibility that testimony is to be afforded. Wright v Wright, 279 Mich App 291, 299; 761 NW2d 858 (2008); MCR 2.613(C).
Vining also contests the trial court's finding that Malone had family in Atlanta. He cites evidence that he collected after the evidentiary hearing and which he attached to his motion for reconsideration. He argues that this new evidence showed that Malone does not, in fact, have a brother who lives in Atlanta.
Vining suggests in passing that the trial court erred when it denied his motion for reconsideration and precluded him from having an evidentiary hearing to address the factual inconsistencies he raised for the first time in his motion. By failing to address the trial court's decision to deny his motion for reconsideration in any meaningful way, Vining has abandoned any claim that the trial court erred by denying that motion. See Mitcham v Detroit., 355 Mich 182, 203; 94 NW2d 388 (1959).
Vining did not present this evidence at the evidentiary hearing, and the trial court had no obligation to consider it for the first time on a motion for reconsideration. See Yoost v Caspari, 295 Mich App 209, 220; 813 NW2d 783 (2012). Likewise, this Court will not consider the evidence for the first time on appeal. See Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). By failing to present this evidence at the evidentiary hearing, Vining left Malone's testimony that she had a brother in Atlanta unrebutted. As such, the trial court's finding was not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
Vining also faults the trial court for concluding that the move would improve MBV's medical condition because Atlanta was warmer. He states that there was no expert testimony that a warmer climate would benefit her. He also generally cites testimony that he feels showed that Malone was not knowledgeable about MBV's condition and had not adequately prepared to ensure that she would be able to obtain adequate treatment for her in Atlanta. From that, he argues that the trial court erred to the extent that it found the move would benefit the children.
At trial, Malone testified that her daughter had a condition called "sickle beta thalassemia," which she described as a mild version of sickle cell. She also testified that extreme cold can cause a crisis, which could result in hospitalization and the need for morphine to alleviate pain. She admitted that she had not asked the doctor who currently treats MBV for her condition whether the child would benefit from moving to a warmer climate. But she reiterated her belief that cold weather exacerbates MBV's condition. She clarified that she understood this to be true on the basis of online research. She also testified about an incident where she personally observed a crisis brought on by temperature change.
Malone's testimony about MBV's diagnosis and condition implicated matters that were beyond the ken of common knowledge and, as such, would ordinarily require expert testimony. See MRE 702. Nevertheless, it was uncontested that MBV had the condition, and Vining does not argue that there is no scientific support for the proposition that cold weather exacerbates the condition. It was also evident from Malone's testimony that she had obtained knowledge and experience about how to care for a child with that condition. Malone could properly testify about her own observations and experiences with caring for a child with the condition. See MRE 701. Vining did not preserve this claim of error by objecting that Malone was not qualified to offer this testimony at trial, and, on this record, the trial court did not plainly err when it failed to sua sponte preclude her from testifying about her understanding and experience with caring for MBV. See Bailey v Schaaf (On Remand), 304 Mich App 324, 344-345, 345 n 3; 852 NW2d 180 (2014), vacated in part on other grounds 497 Mich 927 (2014).
Malone's testimony also demonstrated that she was aware of MBV's special needs. Malone testified that she researched treatment providers in the Atlanta area and felt confident that she could obtain competent care for her in Atlanta. Although Vining presented evidence that, if believed, showed that he had spent more time caring for MBV's condition, it was for the trial court to assess the weight and credibility of the parties. See Wright, 279 Mich App at 299. On this record, the trial court could properly find that Malone would be able to obtain competent care for MBV in Atlanta and that the change in climate would benefit her condition.
The trial court's findings for Factor (a) were not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
2. FACTOR (b)
Under Factor (b), which involves the "degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule," MCL 722.31(4)(b), the trial court found that Malone was inspired to move by her job prospects, the proximity of family, and the warmer environment. The trial court also found Malone's testimony about Vining's acts that deprived her of parenting time to be credible.
On appeal, Vining contends that the trial court should have favored him under this factor. More specifically, he maintains that the trial court failed to recognize that Malone's missed parenting time coincided with an investigation by CPS into a burn that MBV suffered while under Malone's care. He further notes that she did not complain to the Friend of the Court about her missed parenting time and argues that there was evidence that Malone did not take advantage of opportunities to exercise extra parenting time.
Malone testified at some length about the difficulties that Vining created during the parenting-time exchanges, which led to missed dates or late exchanges. She also supported her testimony with text messages and indicated that the problems were not limited to recent months. She told the trial court that she felt that extended parenting-time schedules would benefit the children because there would be fewer opportunities for problems during parenting-time exchanges.
Although Vining generally denied that he interfered with Malone's exercise of parenting time and stated that he only refused to exchange the children when CPS was investigating the burn incident, the trial court was free to disbelieve his testimony and find Malone more credible. This Court will defer to those findings. See Wright, 279 Mich App at 299. Accordingly, the trial court's assessment of this factor was not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
3. FACTOR (c)
The trial court next considered the "degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification." MCL 722.31(4)(c). The trial court found that it would be able to fashion an appropriate parenting-time schedule.
Vining opines that this factor should not have favored granting the change in domicile. He suggests that there was evidence that Malone might not be willing to comply with a new parenting order because she admitted that the move would allow her to avoid issues with parenting time and CPS investigations. Malone, however, did not testify that she wanted to move to Atlanta to avoid CPS investigations and issues with parenting time. Rather, she stated that Vining would have fewer opportunities to create stress because there would be fewer exchanges, which would enable them both to "parent the children effectively." The children would also be more "stable" over the longer periods for parenting time. She stated that she would facilitate Vining's parenting time and would allow him to communicate directly with the children. She even stated that she was open to allowing Vining's family in Atlanta to visit the children.
Vining did not present any evidence that Malone prevented him from exercising his parenting time. And there was testimony that Malone voluntarily allowed Vining to exercise more parenting time after the children reached school age because Vining had the more flexible schedule and she worked three jobs. Moreover, when asked what he would do to facilitate Malone's parenting time if the court were to grant the change in domicile, Vining refused to state what he would do; instead, he opined that the move would undermine his relationship and turn things "upside down." His testimony suggested that he would be the parent who would not cooperate with a modified parenting schedule.
There was evidence that Vining parented the children for the majority of the week and that Malone parented on the weekends. However, Malone also testified that one of the benefits of her move would be a more flexible work schedule. She suggested to the trial court that she would have no problem with parenting the children during the school year and allowing Vining to have summer vacation and other school breaks. As such, there was evidence that Malone had been willing to facilitate and would continue to facilitate Vining's parenting time. And, although Vining would have less overall time parenting the children than he previously exercised, the trial court could structure a parenting-time schedule that allowed him to exercise uninterrupted parenting time for weeks on end. Consequently, the trial court's finding that it could fashion an appropriate parenting-time schedule to foster and preserve Vining's relationship with the children was not contrary to the great weight of the evidence. Fletcher, 447 Mich at 877-878.
4. FACTOR (d)
The trial court found that Factor (d), which examines whether the parent opposing "change is motivated by a desire to secure a financial advantage with respect to a support obligation," MCL 722.31(4)(d), did not apply. Although Vining suggests that Malone was motivated to request the move to avoid her obligation to repay an arrearage in child support, he has not challenged the trial court's finding that this factor did not apply.
5. FACTOR (e)
The trial court found that Vining did in fact engage in domestic violence against Malone, which involves Factor (e). See MCL 722.31(4)(e). Specifically, it found that Vining struck Malone during an incident that occurred in July 2011.
On appeal, Vining argues that the trial court's finding of domestic violence was incorrect. He faults the trial court for stating that it could "infer that the negotiations and the disposition of the domestic violence case did not conclusively determine whether violence occurred." The trial court, however, merely recognized that the jury's finding of not guilty did not preclude the trial court from finding that Vining did, in fact, strike Malone. See People v Ewing, 435 Mich 443, 451-452; 458 NW2d 880 (1990) (stating that an acquittal does not establish innocence because the jury may have acquitted because it had a reasonable doubt or could have acquitted the defendant out of lenity). Malone testified about the incident of domestic violence found by the trial court and provided the court with documents establishing that she had been injured at the time. Vining denied that he caused her injuries, but the trial court disbelieved him. The court stated that it found Malone "sincere" and "credible." By contrast, it found Vining to be "confrontational, argumentative, evasive, and not believable." The trial court was free to reject Vining's denial and, given Malone's testimony, could find that Vining struck Malone on the day at issue. See Wright, 279 Mich App at 299.
The trial court's findings for the factors stated under MCL 722.31(4) were not contrary to the great weight of the evidence. The trial court's finding that Malone established by a preponderance of the evidence that the change in domicile was in the children's best interests was also not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
III. CUSTODIAL ENVIRONMENT
A. STANDARD OF REVIEW
Vining next argues that the trial court erred by granting Malone's motion for a change in domicile because Malone (1) failed to show proper cause or a change in circumstances that would warrant the change in domicile and (2) failed to prove by clear and convincing evidence that the change was in the children's best interests.
In child custody disputes, this Court reviews the trial court's factual findings by examining whether the findings are against the great weight of the evidence. Fletcher, 447 Mich at 877-878. This Court reviews a trial court's discretionary rulings in a custody dispute for a palpable abuse of discretion. MCL 722.28. Finally, this Court reviews de novo the trial court's application of the law to the facts. Kaeb, 309 Mich App at 564.
B. ANALYSIS
Vining maintains that the trial court erred when it proceeded to address the issue of custody despite the fact that Malone did not establish that there was proper cause or a change in circumstances since the entry of the last custody order that would warrant revisiting custody.
The Legislature prohibited trial courts from modifying or amending their previous judgments or orders or issuing 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). "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 Legislature also provided that a trial court may not "modify or amend its previous judgments or orders" except for "proper cause shown or because of a change in circumstances." MCL 722.27(1)(c).
In Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003), this Court explained that the Legislature required a showing of proper cause or a change in circumstances to serve as "a barrier against removal of a child from an established custodial environment and to minimize unwarranted and disruptive changes of custody orders." Id. at 509 (quotation marks and citation omitted). The Court further determined that a proper cause must—in context—mean something more than any appropriate ground for taking legal action; it must mean a ground that has had or could have a "significant effect on the child's life." Id. at 511. Similarly, the Court stated that a change in circumstances that warrants revisiting custody would have to involve something more than normal life changes—the changes must be ones that have a significant effect on the child's well-being. Id. at 513.
On appeal, Vining contends that Malone's request to change domicile does not satisfy the proper cause or change of circumstances threshold enunciated in Vodvarka. In support of his argument, Vining points to dicta in Vodvarka stating that published cases indicate that "an intrastate change in domicile" is not "sufficient to establish a change of circumstances or proper cause warranting the revisiting of the child custody facts." Id. at 509-510. Vodvarka cites this proposition to Dehring v Dehring, 220 Mich App 163; 559 NW2d 59 (1996). After Vodvarka was released, this Court in Sehlke v Vandermaas, 268 Mich App 262, 265-266; 707 NW2d 603, 605 (2005), rev'd in part on other grounds, app denied in part 474 Mich 1053 (2006), found that Dehring "has been overruled by statute in those cases for which MCL 722.31 applies." The Sehlke Court went on to hold that a move under "MCL 722.31 by itself constitutes a change of circumstances." Id. at 266. Therefore, we reject plaintiff's argument that "there is neither proper cause or [sic] change of circumstances based on Defendant's underlying claims to permit the trial court to address a change of custody."
The situation in Sehlke differs slightly from the case at hand. In this case, defendant filed for a change of domicile pursuant to MCL 722.31, while at issue in Sehlke was motion to change custody. Sehlke, 268 Mich App at 264. The Sehlke Court held that a move in violation of MCL 722.31 constituted a change in circumstances sufficient to reopen a custody matter. Id. at 266. Though defendant in this case did not violate MCL 722.31, the difference is negligible. Whether her move violated MCL 722.31 or whether it fell under MCL 722.31 and affected custody such that it also fell under MCL 722.27, the result is the same: the contemplated move constituted a change in circumstances.
Vining next argues that the trial court erred when it determined that Malone had established by clear and convincing evidence that the change to the existing custodial environment was in the children's best interests after considering the factors stated under MCL 722.23, which it was required to consider. See Pierron v Pierron, 486 Mich 81, 93; 782 NW2d 480 (2010).
This Court has provided the proper framework for addressing a parent's request to change a child's domicile under MCL 722.31, as modified by the requirements of MCL 722.27(1)(c):
First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4) . . . support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. [Rains, 301 Mich App at 325.]The trial court in this case did not specifically find that the requested change in domicile would alter the established custodial environment, but it did determine that Malone had to prove by clear and convincing evidence that the requested change in domicile was in the children's best interests. As such, it appears that the trial court in this case impliedly found that the change would alter the established custodial environment that the children would share with Vining. In determining whether this change would be in the children's best interests, the trial court was required to consider the best-interest factors in MCL 722.23, which provides as follows:
As used in this act, "best interests of the child" means the sum total of the following factors to be considered, evaluated, and determined by the court:We address each factor in turn.
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) 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 or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child's other parent.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
Vining does not challenge Factors (a) or (l). Therefore, we need not address them.
1. FACTOR (b)
Vining first argues that it was contrary to the great weight of the evidence to find that Factor (b), which involves "the capacity and disposition of the parties involved to give the child love, affection, and guidance," favored both parties equally. MCL 722.23(b). He maintains that the evidence showed that he was the more involved parent and provided the children with love and guidance on a daily basis, whereas Malone was not involved and provided questionable discipline.
There was significant testimony that Vining was involved in his children's daily routine, engaged them in extracurricular activities, and regularly provided them with love, affection, and guidance. The children's principal stated that Vining was always accessible to discuss issues involving the children and regularly participated in school functions. And the wife of Vining's best friend testified generally that Vining was an involved and responsible parent and an all-around-good dad.
Although there was less evidence concerning Malone's parenting time with the children, she testified that she helped arrange for their current school placement with Vining's mother. There was testimony that she participated in their extracurricular activities, but she explained that she did not attend the same events that Vining attended because of the difficulties that she had with him. She also stated that she celebrated the children's birthdays separately for the same reason. She testified that Vining had considerably more free time than she had and that he routinely took the children places without informing her. However, she admitted that she had not enrolled the children in extracurricular activities.
Malone said she showed extra "love and care" for the children because of the constant back and forth in court and the constant stress placed on the children over whether Vining would allow them to see her. She claimed that she provided the children with a strong example of a working mother who maintained three jobs and indicated that they would benefit from her emphasis on education. She stated that the children looked to them both for custodial care.
The evidence supported a finding that both parties had the "capacity and disposition" to provide the children with love and guidance. MCL 722.23(b). The fact that Vining exercised his capacity more frequently did not require the trial court to weigh this factor more heavily in his favor. Moreover, the trial court expressed concerns about Vining's credibility and, on the basis of its credibility assessment, the trial court could properly give less weight to the testimony that tended to paint Vining as the perfect parent. See Wright, 279 Mich App at 299 (stating that it was for the trial court to determine the weight and credibility of the evidence); MCR 2.613(C). The trial court's finding that both parents had an equal capacity and disposition to provide the children with love and guidance was not against the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
2. FACTOR (c)
Vining next challenges the trial court's finding under Factor (c), which addresses the parties' "capacity and disposition . . . to provide the child with food, clothing, medical care or other remedial care . . . and other material needs." MCL 722.23(c). The trial court found that this factor slightly favored Malone, in part, because there was evidence that Vining worked odd jobs to earn his income and was likely relying on his parents "for a great deal of support."
On appeal, Vining argues that the trial court must be mistaken about his source of income because it "apparently confused a Twitter identification with running a business." At trial, Vining testified that he previously ran a business called "Hustler's Depot." Although Vining testified that he was no longer associated with the business, he acknowledged that he still had a social media account that used the business's name. When commenting on Vining's vague testimony about his businesses, the trial court noted that the "prior" business still functioned as Vining's "social media anchor site." However, the trial court ultimately found that Vining's earnings came from "driving and various odd jobs." Hence, Vining is incorrect when he claims that the trial court did not understand the difference between his use of the "Hustler's Depot" and "Uncle Mar$" monikers on social media and the existence of a functioning business under those names.
The trial court also did not err when it concluded that this factor slightly favored Malone. Malone testified at one point that she earned $41,000 per year and later stated that she earned maybe $47,000 per year working three jobs. She also provided the children with all of their physical needs and had healthcare for the children. Vining testified that he worked as an independent contractor for businesses that provide driving services to persons who need assistance getting to medical appointments. He also helped people get groceries and prescriptions. He agreed that he made about $19,000 in 2015, but testified that he believed he made substantially more in 2016; he stated that he made more like $35,000.
Vining also made vague statements about investments that made him $100,000 and told the trial court that he bought his own home for a bargain during the housing crash. However, when confronted about the mortgage on his home, Vining conceded that his father made the down payment on the home but asserted that he gave his father the money and that his father only filled out the paperwork because he had better credit. He also stated that his mother and father were named on the mortgage. There was also testimony that suggested Vining's expenses exceeded his income. Vining admitted that his mother assisted him financially.
This testimony supported the trial court's finding that Vining relied on his parents to some degree for financial support. It also supported the conclusion that Malone had a higher and more stable source of income. The trial court's finding that this factor slightly favored Malone was not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
3. FACTORS (d) AND (e)
Vining also faults the trial court for finding that both parties were equally favored under Factors (d) and (e). Factor (d) involves the "length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity." MCL 722.23(d). Factor (e) addresses the "permanence, as a family unit, of the existing or proposed custodial home or homes." The trial court found that both parties had maintained their own homes, that the children had attended the same school throughout the proceedings, and that both homes were adequate for the children's needs.
On appeal, Vining claims that the trial court erred with regard to these findings because Malone did not provide testimony about the location of her home and did not state with whom she might be living. He also claims that Malone had stayed in various places and was apparently staying with friends, whereas he had provided a consistent and stable home for the children. For these reasons, he maintains that the trial court should have favored him under both factors.
Malone testified that she currently rents an apartment with two bedrooms and that the children share one room. She further testified that she had moved twice since 2011. This testimony was sufficient to establish that Malone had adequate and stable housing for her children. Further, Malone had no obligation to discuss whether and with whom she was living, nor was she required to give the trial court an address before it could make findings under these factors.
When asked for details about her employment, Malone indicated that she did not want to provide any personal information given her history with Vining. Specifically, she cited a video he posted that showed he had come to her place of employment to harass her, and she reiterated that she feared for her safety. Because there was evidence that Vining had harassed her, struck her, and disparaged her, Malone had good reason to refrain from providing Vining with personal information that he might use against her.
The record supported the trial court's findings under these factors and—given that Vining presented no evidence to rebut her testimony—we conclude that its findings were not against the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
4. FACTOR (f)
Vining next argues that the trial court erroneously weighed Factor (f), which addressed the moral fitness of the parties, MCL 722.23(f), against him on the sole basis of his Instagram account. He maintains that the trial court also failed to note Malone's evasive and less than truthful answers when testifying.
The trial court found that neither party was "outwardly unfit." However, it was concerned about Vining's evasive answers and noted in particular his postings to social media, which it characterized as "blatantly misogynistic and vulgar."
At trial, Malone's trial counsel asked Vining if he was "associated in any way" with something called Hustler's Depot, and Vining denied that he was. When confronted with his social media account that used the name "Hustler's Depot," Vining explained that he denied being "associated" because Malone's counsel had not inquired about whether he had "ever or previously" been associated with Hustler's Depot. Vining then denied that Hustler's Depot had any current existence, saying "[i]t doesn't happen it doesn't exist anymore." He stated that he also closed the related store called "Uncle Mar$." He nevertheless admitted that he still used the logo on his Twitter feed. When asked by the court if he had posted something under the name "Uncle Mar$" just 54 minutes earlier, Vining denied doing so. He stated, "I've been in court." The trial court then read a post under the name "Uncle Mar$," which read: " 'They cheating as usual. But I'm not tripping. The devil is a lie.' " Vining explained that his Instagram account was linked to that account and told the court that a social media account was not a business. The court informed Vining that it was viewing the Twitter page and noted that it referred to "Uncle Mar$ at Hustlers Depot." Vining agreed that he still used those names but reiterated that there was no business and that he was not associated with them.
Later, the trial court returned to Vining's questionable social media postings. Vining had informed the trial court that he loved his children and was especially protective of his daughter because she was his first-born, she was female, and she had sickle-cell. The court inquired if he would be concerned if she read his Instagram postings. Specifically, the trial court inquired about how he portrayed women in that feed. The trial court then read several posts that were vulgar and degrading toward women. The court related that Vining had apparently even posted an image of himself sitting in the witness box. Vining explained that he posted the image during a break. The court indicated that the social media posts raised concerns in light of his testimony that he was a "family man" who loved his daughter. The court explained that it believed that Vining loved his children and was active in their lives, but it felt that his public statements demeaning women seemed inconsistent with his asserted love for his daughter. Vining replied, "Every woman is not my daughter."
Vining's repeated efforts to explain away or deny anything that reflected poorly on him supported the trial court's finding that he was evasive and lacked credibility. Additionally, the trial court was present when Malone answered the questions posed by Vining and had the opportunity to determine whether she was being evasive or trying to answer the questions that Vining posed to her. The trial court found that she was "sincere and direct." This Court has no basis for second-guessing the trial court's evaluation of her credibility, despite Vining's claim to the contrary. Dep't of Community Health v Risch, 274 Mich App 365, 375; 733 NW2d 403 (2007) (stating that "credibility determinations are within the province of the fact-finder, and it is not the role of this Court to second-guess those findings or substitute its judgment" for that of the fact-finder). The trial court did not clearly err when it found that Vining was evasive and Malone was sincere and direct.
Vining also maintains that the trial court should not have used his social media postings against him because Malone did not provide him with a copy of the feeds and, in any event, the postings did not reflect how he might parent his children, which was a prerequisite for consideration under this factor. See Fletcher, 447 Mich at 886-887.
Vining has conceded on appeal that Malone notified him that his Instagram account would be an exhibit at trial, and it is difficult to imagine how Malone's failure to provide him with a copy of his own Instagram messages prevented him from preparing for her use of those messages at trial.
Additionally, contrary to Vining's stated belief, his views on women and his postings to social media do, in fact, implicate his moral fitness to parent. He is a role model for his children, and the way he views women will invariably have an impression on them. Vining's inability to see the negative impact that his vulgar and misogynistic views of women might have on his children—both his son's view of women and his daughter's self-image—was evidence that he lacked moral fitness. Stated another way, his posts were "probative of how one will interact with or raise a child." Id. at 887. His postings also demonstrated a clear contempt for the seriousness and integrity of the very proceedings being held to determine the best interests of his children.
On this record, it was not contrary to the great weight of the evidence to find that Factor (f) significantly favored Malone. See id. at 877-878.
5. FACTOR (g)
Vining also claims that the trial court's finding that Factor (g) significantly favored Malone was "speculative and inappropriate" because the court made its determination on the basis of Vining's conduct. Factor (g) requires the trial court to consider the "mental and physical health" of both parents. MCL 722.23(g). But there is no requirement that the trial court limit its assessment of mental health to formal diagnoses or expert opinion.
The trial court expressed concern about Vining's "control and anger issues." The trial court had the opportunity to observe Vining's demeanor throughout the proceedings and could determine that he had a problem managing his anger from its observations. See 22 Wright & Miller, Federal Practice & Procedure (2d ed), Evidence § 5163 (noting that the demeanor and actions of a party in court may constitute evidence). Moreover, the trial court could take notice of the fact that Vining had been found in contempt of court as a result of his inability to control his behavior at a prior proceeding. See Knowlton v Port Huron, 355 Mich 448, 452; 94 NW2d 824 (1959) ("[W]e think that a circuit judge may take judicial notice of the files and records of the court in which he sits."). Although the trial court did not cite the evidence when making its finding under this factor, as already noted, there was also evidence that Vining had struck Malone and that he expressed anger and contempt for her and for women in general, which implicated his self-control and his ability to respond appropriately to stressful situations. By contrast, there was no testimony that Malone had excessive or inappropriate outbursts. Taken together, the trial court's finding that this factor significantly favored Malone was not contrary to the great weight of the evidence. See Fletcher, Mich at 877-878.
6. FACTOR (h)
Vining next argues that the trial court failed to properly address Factor (h), which addresses the children's "home, school, and community record." MCL 722.23(h). More specifically, he claims that the court failed to give him credit for the children's success in school and extracurricular activities and ignored the fact that Malone was not an involved parent. He also suggests that the trial court erred by focusing on the proposed change of domicile rather than on the children's home, school, and community records.
The trial court found that the children were doing well in school and thriving in general and gave the parties equal credit for the children's success. While Vining claims that he should receive all the credit for their success, as already noted above, there was evidence that both parents had a role in their success. And it was for the trial court to determine the weight and credibility of the evidence to that effect. See Wright, 279 Mich App at 299.
The trial court also did not evaluate this factor to justify a change in domicile. Rather, it stated that the children had a good record in their current placement and attributed their success to both parents. The trial court did recognize that, contrary to Vining's claims before the trial court, there was evidence that the children's strengths had prepared them to adapt to any situation. It indicated that their record suggested that they would not suffer "significant hardship" as a result of a move. And there was record evidence to support that finding. For instance, the children's martial arts instructor testified that the children were well-adjusted, resilient, and had great self-esteem. He opined that they would be able to make friends in Atlanta; he stated that "those two have the personalities where they can make friends anywhere."
The trial court's finding that both parents contributed to the successful record of their children at home, in school, and in their community was not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
7. FACTOR (i)
Vining next argues that the trial court erred as a matter of law when it refused to take the children's preferences into consideration as required under Factor (i). See MCL 722.23(i). In reviewing this factor, the trial court was not required to interview the children to ascertain their preferences, and the fact that the children were presumptively capable of expressing a preference did not preclude the trial court from finding otherwise or preclude it from giving little to no weight to their preferences. See Maier v Maier, 311 Mich App 218, 224-226; 874 NW2d 725 (2015). The trial court did state that it did not consider the children to be of sufficient age to express a preference, but it nevertheless stated that there was "adequate evidence in the record" to consider their preferences. It then found that this factor carried "no weight."
At trial, Vining told the trial court that his children did not "[w]ant to leave, they don't want to be away from their family. They like their home, their friends, and their school." Accordingly, there was evidence of the children's preferences. But the trial court could reasonably conclude that the children's preferences at that young age did not amount to a reasonable preference. See id.
The trial court did not err as a matter of law by failing to consider the children's preferences—it considered their preferences and determined that their preferences carried no weight. See Kaeb, 309 Mich App at 564.
8. FACTOR (j)
Under Factor (j), the trial court should consider 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 or the child and the parents." MCL 722.23(j). The trial court stated that it was "convinced" that Vining had "little or no respect" for Malone and found that Vining did not see how Malone could be a "positive or valuable influence" in the children's lives. The court also noted that Vining repeatedly denied Malone parenting time through his actions. It also noted that Malone had been investigated by CPS as a result of allegations that did not result in any action. The court stated that it could not reconcile Vining's attitude with Malone's credible testimony about her love for the children and her willingness to promote the children's relationship with their father. Accordingly, it weighed this factor heavily in her favor.
On appeal, Vining rejects the trial court's finding that this factor favored Malone because he would not facilitate the children's relationship with Malone. He complains that the trial court did not give him credit for the testimony that showed he invited Malone to various events. As already discussed, there was some testimony that permitted an inference that Vining had interfered with Malone's parenting time and would undermine her efforts to be a positive influence in the children's lives. It is also noteworthy that Vining could not or would not answer the court's question about how he would facilitate the children's relationship with Malone if the court were to grant the motion for a change in domicile. Instead, he merely asserted that allowing the move would undermine his relationship with the children. Although Vining denied interfering, it was for the trial court to resolve any factual disputes, and it resolved this dispute in Malone's favor. See Wright, 279 Mich App at 299.
There was similarly evidence and testimony that Vining did not respect Malone and had disparaged her, threatened her, and struck her. Vining makes much of the fact that there was no evidence that he disparaged Malone in front of the children, and he notes that Malone did not present documentary evidence that he threatened her. But those observations address the weight to be accorded the evidence. And there was testimony and evidence that Vining followed Malone, took pictures of her car, posted a disturbing video about Malone online, and generally acted with contempt for her as a parent.
Vining also spends a significant amount of time on appeal discussing the evidence that he believes showed that Malone was an uninvolved parent. The trial court found that Vining was involved in his children's lives, but the court rejected the notion Malone was disinterested and uninvolved in the children's lives. As already discussed, there was evidence to support the trial court's resolution of that factual dispute. See id.
The totality of the evidence supported the trial court's finding that Malone would facilitate the children's relationship with Vining but that Vining would not do the same for the children's relationship with Malone. The trial court's finding under this factor was not contrary to the great weight of the evidence. See Fletcher, 447 Mich at 877-878.
9. FACTOR (k)
Finally, Vining argues that the trial court erred when it found that Factor (k), which involves domestic violence, weighed against him. See MCL 722.23(k). Vining argues on appeal that the trial court should not have considered the incident of domestic violence for the same reasons that he advanced in his challenge to the corresponding factor for a change in domicile. As already discussed, there was ample evidence to support a finding that Vining had struck Malone. Therefore, Vining's claim that the trial court could not weigh this factor against him is without merit.
Accordingly, the trial court's findings were not against the great weight of the evidence, and the trial court did not err when it determined that Malone established by clear and convincing evidence that the change in domicile was in the children's best interests.
IV. PARENTING TIME
A. STANDARD OF REVIEW
Vining next argues that the trial court erred by setting parenting time that was contrary to the best interests of the children. This Court reviews the trial court's factual findings by examining whether the findings are against the great weight of the evidence. Fletcher, 447 Mich at 877-878. This Court reviews a trial court's discretionary rulings, such as its exercise of discretion in setting parenting time, for a palpable abuse of discretion. MCL 722.28; Berger, 277 Mich App at 716. Finally, this Court reviews de novo the trial court's application of the law to the facts. Kaeb, 309 Mich App at 564.
B. ANALYSIS
The Legislature has provided that a child generally has the right to parenting time with his or her parents. MCL 722.27a(3). As such, the trial court should order 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 every case, however, parenting time must be ordered in "accordance with the best interests of the child." MCL 722.27a(1).
After the trial court determined that it was in the children's best interests to allow Malone to move their domicile to Atlanta, it modified the children's parenting time to accommodate the change in domicile. The court ordered that Vining have parenting time "during all of summer vacation, and every school holiday and break." It clarified that Vining would have at least the weekend before the holiday when the holiday was adjacent to the weekend. It also ordered that Vining have parenting time from the Friday before Thanksgiving through the Sunday after Thanksgiving. Finally, it provided that Vining could exercise one week of parenting time in Georgia during the school year by providing Malone with six weeks of advanced notice. The trial court ordered the parties to split the costs of transportation evenly.
On appeal, Vining argues that the trial court failed "to fully and properly address the parenting time factors" stated under MCL 722.27a(7). The Legislature provided that courts "may" consider those factors when "determining the frequency, duration, and type of parenting time." MCL 722.27a(7). The term "may" is permissive in this context; as such, the trial court was not required to consider or make findings for the factors stated under MCL 722.27a(7). See Walters v Nadell, 481 Mich 377, 383; 751 NW2d 431 (2008) (noting that the term "may" is typically permissive); see also Shade v Wright, 291 Mich App 17, 31-32; 805 NW2d 1 (2010) ("Custody decisions require findings under all the best interest factors, but parenting time decisions may be made with findings on only the contested issues."). Nevertheless, the trial court did briefly address the factors and concluded that two were relevant: it acknowledged that MBV had special needs, and it recognized that the distance would require significant travel time. See MCL 722.27a(7)(a) and (e).
The trial court found that MBV's condition did not influence the parenting-time schedule because both parties had the ability to address her needs during their respective parenting time. As already discussed, and contrary to Vining's claim on appeal, there was evidence to support the trial court's finding that Malone would be able to adequately care for MBV in Atlanta. Additionally, the trial court stated that it would consider the burden of travel in drafting the parenting-time order. The court's findings, especially when considered with its findings on the best-interest factors, were sufficient to support its parenting-time decision. See MCR 2.517(A)(2).
Vining also complains that the new parenting-time schedule has deprived him of the "crucial weekly contact" that he previously had with his children. The trial court's order provided him with weekly contact throughout summer vacation and during holiday breaks but left him without weekly physical contact during many weeks of the school year. However, he has not identified how the loss of weekly physical contact during the school year affected the best interests of the children. Instead, he merely reiterates his belief that it was not in the children's best interests to allow the change in domicile in the first place.
The trial court determined that the change in domicile to Atlanta was in the children's best interests. As such, it had to establish a parenting-time schedule that was reasonably calculated to promote a strong relationship between the children and both parents, despite the distances involved. See MCL 722.27a(1). As the trial court recognized, the children needed to remain in one locale for the duration of the school year. As such, it had to order parenting time for one parent during the school year and order parenting time for the other parent during the summer months and during school breaks. The trial court chose to order Malone to have parenting time during the school year and gave Vining continuous parenting time during the summers and extensive intermittent parenting time during the school year, which included one week of parenting time in Georgia. Although Vining's parenting time is less than Malone's under this schedule, the law does not require a 50/50 split in parenting time. Diez v Davey, 307 Mich App 366, 390; 861 NW2d 323 (2014). It is not the sheer quantity of parenting time awarded to a parent that matters; it is whether the parenting-time schedule was in the child's best interests. Berger, 277 Mich App at 716.
The trial court also heard evidence that the frequent parenting-time exchanges had been the occasions for problems and stress for the children. By establishing extended periods of parenting time, the trial court reduced the potential for problems during exchanges. The less frequent exchanges also reduced the amount of time that the children would need to travel. Under these facts, the extended periods of visitation in lieu of more frequent exchanges may foster closer parent-child relations. See Anderson v Anderson, 170 Mich App 305, 311; 427 NW2d 627 (1988).
Vining has not shown that the trial court's parenting-time schedule was not in the children's best interests. MCL 722.27a(1). Consequently, he has not established that the trial court palpably abused its discretion when it set the parenting-time schedule. See Berger, 277 Mich App at 716.
V. EVIDENTIARY ERRORS
A. STANDARD OF REVIEW
Vining also argues that the trial court committed evidentiary errors that deprived him of a fair hearing. This Court reviews de novo whether the trial court properly applied the law. Kaeb, 309 Mich App at 564. However, this Court reviews a trial court's decision to admit evidence for an abuse of discretion. In re Utrera, 281 Mich App 1, 15; 761 NW2d 253 (2008). A trial court abuses its discretion when it selects an outcome that falls outside the range of reasonable outcomes. Id.
B. ANALYSIS
Vining argued before the trial court and maintains on appeal that the trial court should not have allowed evidence of events from before the entry of the last custody order. Vining has not identified any law that precludes a trial court from admitting evidence concerning events that occurred before entry of the last custody order when determining whether to grant a request for change of domicile or deciding the best interests of the children. He also has not identified any rule of evidence or law that precluded the trial court from considering the contested evidence or required the evidence to be excluded. See, e.g., MRE 401; MRE 402; MRE 403. By failing to meaningfully analyze this claim or error, Vining has abandoned it on appeal. Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Citing Edel v Edel, 97 Mich App 266; 293 NW2d 792 (1980), repudiated on other grounds in Blaskowski v Blaskowski, 115 Mich App 1; 320 NW2d 268 (1982), Vining suggests that evidence concerning events that occurred long before the custody dispute should be treated as stale. The decision in Edel did not involve the admission of evidence and whether evidence should be excluded as stale. Rather, this Court in Edel recognized that the trial court erred when it considered the race of the mother's new boyfriend in determining the best interests of the child, and then had to determine whether it should order a new evidentiary hearing on remand or permit the trial court to examine the record and make a new determination without considering the race of the mother's boyfriend. Edel, 97 Mich App at 274. The Court concluded that the passage of one year since the last hearing had rendered the record stale and ordered a new hearing to allow the parties to supplement the record. Id. Consequently, Edel does not stand for the proposition that evidence must be excluded if it involves events that occurred long before the custody dispute at issue. --------
Vining also argues on appeal that five of Malone's exhibits should have been excluded because she failed to provide them to him as required under the scheduling order. These exhibits were the printout of text messages, the picture of Malone with her injuries, the document from Malone's hospital visit, a YouTube video, and the CPS report. The trial court elected not to exclude these exhibits on the ground that they had not been earlier disclosed.
Trial courts have the inherent authority to enforce their orders. See Maldonado v Ford Motor Co, 476 Mich 372, 376; 719 NW2d 809 (2006); Brenner v Kolk, 226 Mich App 149, 159-160; 573 NW2d 65 (2002). The court rules further provide that a trial court may "order such sanctions as are just" when a party "fails to obey an order to provide or permit discovery." MCR 2.313(B)(2). Trial courts have a range of sanctions available to them to punish violations of discovery orders, which include excluding evidence. See MCR 2.313(B)(2); see also MacArthur Patton Christian Assoc v Farm Bureau Ins Group, 403 Mich 474, 478; 270 NW2d 101 (1978). However, a trial court has to carefully review all the factors involved in a case and consider the full range of possible sanctions and then select the sanction that is "just and proper in the context of the case before it." Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). When selecting the appropriate sanction from the wide range of available sanctions, the trial court should review several factors. It should consider
(1) whether the violation was willful or accidental; (2) the party's history of refusing to comply with discovery requests (or refusal to disclose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defendant of the witness and the length of time prior to trial that the defendant received such actual notice; (5) whether there exists a history of plaintiff's engaging in deliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court's order; (7) an attempt by the plaintiff to timely cure the defect; and (8) whether a lesser sanction would better serve the interests of justice. [Id. at 32-33.]
Here, there is no evidence that Malone's failure to provide the exhibits was willful or that she had engaged in a history refusing to comply with discovery orders. Moreover, although Vining complained that he was prejudiced by the failure to provide copies of the exhibits, any prejudice occasioned by the failure to supply copies of the exhibits before the hearing was minimal. The record strongly suggests that Vining had knowledge of the majority of the exhibits. Malone attached similar pictures—if not the same pictures—and discharge instructions from her hospital visit to an earlier motion contained in the record, and Vining was intimately involved in the criminal proceeding arising from that incident. Vining also did not deny that the text messages were from him. He also could have accessed his own devices to obtain copies of the text messages. The same was true of the YouTube video. Vining acknowledged that he had seen the video and admitted that he made it. Although Vining claimed that he had been unable to obtain a copy of the CPS report, which he "vehemently" pursued, a CPS worker testified that her department will not release a CPS report to someone unless that person goes to the office in person and provides proof of his or her identity. She stated that Malone was provided with a copy because she did that. By contrast, there was no record of Vining requesting a copy in person. As such, it appears that Vining knew about the CPS report but failed to take the necessary steps to secure a copy on his own. Under these circumstances, any prejudice occasioned by the failure to earlier disclose this evidence did not prejudice Vining.
Additionally, even assuming some prejudice, it cannot be said that the trial court's failure to exclude the exhibits rather than fashion some other remedy fell outside the range of reasonable outcomes. See Utrera, 281 Mich App at 15. In the context of a child custody dispute, the exclusion of evidence as a sanction is particularly extreme in that it may prevent the trial court from fully assessing the evidence implicating the children's best interests. See McIntosh v McIntosh, 282 Mich App 471, 475; 768 NW2d 325 (2009) (stating that the overriding concern in a child custody matter is the child's best interests). As such, a lesser sanction will normally better serve the interests of justice. Dean, 182 Mich App at 32.
On this record, Vining has not shown that the trial court should have excluded the exhibits at issue.
Vining also briefly mentions that the trial court chided him and limited his testimony and questioning at the hearing. He does not state whether these instances amounted to error. To the extent that he has suggested as much, he has abandoned that claim on appeal. See Mitcham, 355 Mich at 203.
VI. JUDICIAL BIAS
Vining also briefly argues that this Court should remand this case to a different judge because the judge who presided over his hearing was biased. The right to due process includes the right to have an unbiased and impartial decision maker 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).
On appeal, Vining relies heavily on the trial court's rulings against him and its findings in favor of Malone under the best-interest factors. 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. However, a judge's adverse rulings and comments do not, by themselves, establish bias or prejudice. Liteky v United States, 510 US 540, 550-551; 114 S Ct 1147; 127 L Ed 2d 474 (1994). After reviewing the record, we conclude that there is nothing in the record to suggest that the trial court held bias toward Vining. And while this Court may also remand to a different judge if it determines that the original judge would have difficulty putting aside previously expressed views or findings or to preserve the appearance of justice, see Bayati v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004), there is nothing in the record to suggest that the trial judge would be unable to fairly handle any future matters between these parties that may come before it.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens