Michelle McBride v. Steven Michael Mathews ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MICHELLE MCBRIDE, also known as MICHELLE UNPUBLISHED
LARSEN, March 2, 2023
Plaintiff-Appellant,
v No. 361317
Kalamazoo Circuit Court
STEVEN MICHAEL MATHEWS, LC No. 2016-006747-DP
Defendant-Appellee.
Before: GLEICHER, C.J., and MARKEY and RICK, JJ.
PER CURIAM.
Plaintiff Michelle McBride (mother) appeals by right the trial court’s order denying her
amended motion to modify custody of the parties’ minor child, ALM, and finding her in contempt
of court for failure to abide by a prior order. We affirm in part and reverse in part.
I. BACKGROUND
In 2009, mother filed a paternity suit against defendant Steven Michael Mathews alleging
that Mathews is ALM’s father. The trial court entered a judgment of filiation, identifying Mathews
as the child’s father. Mother was awarded sole physical custody of ALM. In January 2016, the
parties stipulated to joint physical custody. Shortly thereafter, father sought sole physical custody,
contending that mother had effectively abandoned ALM to his care. The trial court granted this
motion and awarded mother reasonable parenting time.
Five years later, in March 2021, mother moved for primary physical custody of the child.
She argued that ALM was performing poorly in school while in father’s custody, that father was
not providing the child with proper clothing, eyeglasses or medical care, and that father negligently
supervised the child’s hygiene. Father denied these allegations.
Before a hearing on this motion, mother moved for an ex parte order modifying custody.
She alleged that father’s wife had physically abused ALM by spanking the child in a manner that
left an injury, and amended her motion to modify custody to add this allegation of abuse. The trial
court did not award mother temporary custody, but it did order that father’s wife was not allowed
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unsupervised contact with ALM. At a subsequent hearing the court determined that because Child
Protective Services (CPS) had not substantiated abuse and had put a “safety plan” in place,
supervision was no longer necessary. Mother had kept ALM in her custody beyond her allotted
parenting time while the CPS investigation was conducted. The court ordered mother to return
ALM to father as soon as possible,
Mother attempted to return ALM, but ALM refused to get out of the car. The Lansing
police were called to the scene and declined to force ALM from the car. Father brought a motion
to show cause why mother should not be held in contempt for failing to return the child pursuant
to the court’s directive. ALM returned to father’s care four days later after the trial court entered
an order specifically requiring mother to compel the child to do so.
In September and December 2021, a domestic relations referee held a two-day hearing on
mother’s motion to modify custody. The referee heard testimony from both parties and mother’s
husband. Mother testified that ALM had been performing poorly in school and that her grades
only improved when mother became involved. Conversely, father insisted that he actively
monitored ALM’s schoolwork and that the child was doing well in school. The evidence presented
to the referee revealed that ALM had mostly As and Bs at the end of the spring 2021 semester and
at the time of the December 2021 hearing. Mother also testified that ALM practiced poor hygiene
while in father’s custody and that father did not provide a proper winter coat for the child. Father
denied these allegations, stating that he had provided an acceptable winter coat for ALM and had
not noticed any hygiene issues.
Mother further asserted that father did not provide proper medical care for the child. She
claimed that father failed to obtain suitable eyeglasses for ALM and did not secure adequate
medical care for ALM’s migraine headaches, possible asthma, and allergies. Father denied these
allegations as well and testified that ALM had received a medical checkup in December 2021.
Regarding the claim of physical abuse, mother testified that ALM was seriously injured
and traumatized by the spanking she received from father’s wife. Father acknowledged that his
wife had spanked ALM when disciplining her for misbehaving, but he denied that it constituted
abuse or resulted in injury. The referee determined that proper cause to revisit the custody issue
was shown, but found that it was not in ALM’s best interests to change the established custodial
environment by modifying the custody arrangement.
Mother objected to the referee’s recommendation, and the trial court conducted a de novo
review.1 The trial court ruled that mother had failed to establish proper cause or a change of
1
The trial court reviewed a videotape of the referee hearing for purposes of making its ruling. The
parties informed the court that they had no additional live testimony or documentary evidence to
present.
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circumstances as necessary to reexamine an existing custody order.2 The trial court found that
mother’s testimony about ALM’s trauma stemming from the spanking, which involved the child
being “spanked five times on the bottom,” was not credible and that mother was fabricating or
embellishing in an effort to enhance her claim for custody. The trial court noted that CPS
investigated, “did not substantiate abuse or neglect,” and closed the case. The court also pointed
out that without seeking consultation or engaging in communication with father in violation of the
joint legal custody order, mother sought medical and psychological care for ALM related to the
spanking and for an ankle injury suffered while in mother’s care.
The trial court also determined that mother failed to establish that ALM was performing
poorly in school, noting that she was “an excellent student” and that father “aptly monitor[ed] her
schooling and education.” The court further found that mother failed to demonstrate that the child
did not practice proper hygiene while in father’s care. The trial court observed that there was no
evidence that ALM was “stinky and unclean at school,” with the court ostensibly crediting father’s
testimony that the child regularly bathed. The court additionally determined that there was no
evidence that ALM was improperly clothed, and ruled that father had supplied the child with an
appropriate winter coat. The trial court also found that mother failed to provide any testimony
from a doctor or optician showing that father was not properly caring for or monitoring ALM’s
medical needs. The court noted that father brought up concerns regarding the child’s migraines
with ALM’s doctor and that father was following the doctor’s suggestions. Even though the trial
court found that mother failed to demonstrate proper cause or a change of circumstances, the court
proceeded to analyze the statutory best-interest factors, concluding that it was not in ALM’s best
interests to award mother custody. The court also granted father’s motion to show cause, holding
mother in contempt of court for “intentionally and repeatedly” violating the “order regarding joint
legal custody and . . . parenting time.” Mother appeals by right.
2
Again, the referee found that proper cause had been established. At the de novo hearing, where
the parties simply presented arguments, father’s attorney asked the trial court to “uphold” the
referee’s “decision on all matters.” But the trial court then stated:
And, you know, when this is de novo in front of me, don’t expect I’m gonna
rule . . . if something was in your client’s favor, don’t expect I’m gonna rule the
same as the referee cause . . . I’m pretty thorough and look at these things, and . . .
I have to determine who to believe and those kind of things, and so I may see the
case different than the referee.
Under MCR 3.215(F)(2)(b), a “court may, in its discretion, . . . determine that the referee’s finding
was conclusive as to a fact to which no objection was filed[.]” We thus conclude that the trial
court had the discretion to render a de novo decision on proper cause or change of circumstances
even though the referee’s finding on the matter was not the subject of an objection and despite
father’s expressed satisfaction with all facets of the referee’s recommendation.
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II. CUSTODY
Mother first argues that the trial court’s ruling regarding proper cause and a change of
circumstances was against the great weight of the evidence.3 “This Court reviews a trial court’s
determination regarding whether a party has demonstrated proper cause or a change of
circumstances under the great weight of the evidence standard.” Corporan v Henton, 282 Mich
App 599, 605; 766 NW2d 903 (2009). MCL 722.27(1)(c) provides that in a custody dispute, the
trial court may “modify or amend its previous judgments or orders for proper cause shown or
because of change of circumstances” to serve the best interests of a child. But the court is not
permitted to “modify or amend its previous judgments or orders or issue a new order so as to
change the established custodial environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the child.” MCL 722.27(1)(c). “These initial
steps 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) (quotation marks omitted). The first step in the analysis is to
determine whether the moving party has established proper cause or a change of circumstances,
applying a preponderance of the evidence standard. Id. at 508-509.
In McRoberts v Ferguson, 322 Mich App 125, 131-132; 910 NW2d 721 (2017), this Court
explained:
Proper cause means one or more appropriate grounds that have or could
have a significant effect on the child’s life to the extent that a reevaluation of the
child’s custodial situation should be undertaken. In 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
3
In child custody disputes, “all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of evidence or
committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28.
We review for an abuse of discretion a trial court’s ruling on a motion to modify custody. Yachcik
v Yachcik, 319 Mich App 24, 31; 900 NW2d 113 (2017). In child custody disputes, “an abuse of
discretion exists when the result 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.” Id.(quotation marks and citations omitted). “In the child custody context, questions of law are
reviewed for clear legal error. A trial court commits legal error when it incorrectly chooses,
interprets, or applies the law.” Sulaica v Rometty, 308 Mich App 568, 577; 866 NW2d 838 (2014).
A “trial court’s findings of fact are reviewed under the great weight of the evidence standard.”
Yachcik, 319 Mich App at 31. “This Court may not substitute its judgment on questions of fact
unless the facts clearly preponderate in the opposite direction. But where a trial court’s findings
of fact may have been influenced by an incorrect view of the law, our review is not limited to clear
error.” Rains v Rains, 301 Mich App 313, 324-325; 836 NW2d 709 (2013) (cleaned up).
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significant effect on the child’s well-being, have materially changed. To constitute
a change of circumstances under MCL 722.27(1)(c), 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. [Cleaned up.]
The criteria outlined in the statutory-best interest factors, MCL 722.23, “should be relied on by a
trial court in deciding if a particular fact raised by a party is a ‘proper’ or ‘appropriate’ ground to
revisit custody orders.” Vodvarka, 259 Mich App at 512. As to “change of circumstances,” factual
relevance should also be “gauged by the statutory best interest factors.” Id. at 514.
Mother argues that the trial court’s determinations regarding ALM’s school performance
and medical care were against the great weight of the evidence. Mother contends that these two
matters alone established proper cause to revisit the existing custody order.
The evidence regarding ALM’s school performance barely conflicted and ultimately
demonstrated that the child performed well in school. Father testified that ALM’s current grades
at the December 2021 hearing were all As and Bs. The evidence of ALM’s grades at the end of
the 2020-2021 school year revealed similar solid grades.4 Mother maintains that those grades
reflected her efforts, and that ALM had performed poorly when in father’s care. But scant evidence
supported these claims. Conversely, father testified that he monitored ALM’s schoolwork. The
trial court found his testimony credible, as indicated by its observation that father “aptly
monitor[ed] [ALM’s] schooling and education.” The trial court concluded that given the child’s
excellent grades, school performance did not provide proper cause to revisit the custody order.
This finding was not against the great weight of the evidence. Mother failed to establish that ALM
was performing poorly in school, let alone that this purported poor performance could be properly
attributed to father.
Mother argues that lapses in father’s medical care of ALM represented proper cause to
revisit the custody order. Mother contends that father did not provide her any information
regarding ALM’s medical care and, therefore, mother had no way to know whether ALM’s
medical needs were being met, had no opportunity to consent to ALM’s medical treatment, and
had no ability to participate in ALM’s medical care.5
4
During the referee hearing in September 2021, which of course would have been at the beginning
of the school semester, mother testified that “currently [ALM] has multiple F’s and she has two
missing assignments.” Mother relies on this testimony on appeal, but we conclude that little weight
can be given to this early and brief snapshot in time, especially considering the child’s final
semester grades in June and December 2021.
5
Mother notes that the trial court commented in its opinion that both parties were not the most
dependable when it came to abiding by the joint legal custody order, co-parenting, and
communicating with each other. Thus, according to mother, the court found that she was
somewhat credible when it came to her assertions that father withheld information from her and
did not fully communicate with respect to the child’s medical care. We note, however, that the
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The evidence regarding the information father shared with mother relative to ALM’s
medical care consisted solely of the parties’ testimony. Mother testified that father refused to
communicate with her regarding ALM’s medical care, while father testified that he did in fact
communicate with mother on that issue. Neither party spent much time discussing this issue before
the referee; rather, the focus was on mother’s contention that father failed to provide for ALM’s
medical care and treatment. The trial court determined that mother failed to introduce evidence
showing that father deprived ALM of proper medical care and treatment. We conclude that mother
has not demonstrated that the trial court’s finding was against the great weight of the evidence.
In sum, the trial court’s finding that mother failed to establish proper cause or a change of
circumstances sufficient to warrant consideration of a custody modification was not against the
great weight of the evidence. Accordingly, we affirm the trial court’s ruling denying mother’s
amended motion to modify the existing custody arrangement.6
III. CONTEMPT
Mother next argues that the trial court erred when it granted father’s motion to show cause
and held her in contempt of court. A trial court’s findings in relation to a contempt determination
are reviewed for clear error and must be affirmed if there is competent evidence to support the
findings. In re Contempt of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009) (citations
omitted). Clear error exists when the appellate court is left with the firm and definite conviction
that a mistake was made. Id. at 669. The ultimate decision to issue a contempt order rests in the
sound discretion of the trial court, which we review for an abuse of discretion. Id. at 671.
The evidence established that father’s wife spanked 12-year-old ALM, and that the child
claimed to be in pain several hours later. Unremarkably, the child later expressed that she did not
want to return to her father’s home. When mother was ordered to return the child to father, the
child resisted and, according to mother, cried hysterically.
The trial court found mother in contempt based on mother’s failure to more forcefully
compel her daughter to return to her father’s home. However, the evidence supports that mother
did not deliberately “withhold” the child in disregard of the court’s order out of spite, but to protect
ALM physically and emotionally. Although the trial court disbelieved mother’s claim that ALM
trial court made the general observation about the parties’ shortcomings in regard to co-parenting,
communications, and the joint legal custody order when analyzing the best-interest factor specific
to the parties’ willingness to facilitate and encourage a close and continuing parent-child
relationship between ALM and the other parent. See MCL 722.23(j). The trial court made no
determination or finding that father failed to share medical information with mother. Indeed, the
court found that it was mother who failed in this regard.
6
Mother also argues that the trial court erred when it determined that modifying custody was not
in ALM’s best interests. Because mother failed to establish that the trial court erred when it
determined that mother had not satisfied the threshold question of the existence of proper cause or
a change of circumstances, we need not address whether the trial court erred when it determined
that a modification of custody was not in ALM’s best interests.
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refused to return to her father’s home, the great weight of the evidence contradicts this finding.
ALM was interviewed by the referee and expressed a preference for residing with her mother.
Although no additional information about the interview is in the record, the fact that father’s wife
spanked a 12-year-old and that ALM preferred to live with her mother supports mother’s testimony
that ALM was not willing to voluntarily return to her father’s home despite the court’s order, and
substantiates mother’s testimony that ALM strenuously resisted even when told she had to do so.
The evidence additionally supports that mother found herself in an emotionally fraught
situation, forced to choose between compelling her unwilling 12-year-old daughter to a place
where she had been physically punished, and allowing the child to remain in a place where she felt
safe. Under the circumstances, we are left with the firm and definite conviction that the trial court
erred by finding mother’s failure to physically eject her unwilling daughter from the car to be
contemptuous, despite the presence of a court order.
We affirm in part and reverse in part, and remand for proceedings consistent with this
opinion. We do not retain jurisdiction. No costs may be taxed as neither party having prevailed
in full.
/s/ Elizabeth L. Gleicher
/s/ Michelle M. Rick
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