Dana Marie Bauer v. Timothy John Waidelich ( 2019 )

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
DANA MARIE BAUER, UNPUBLISHED
August 6, 2019
Plaintiff-Appellee,
v No. 345756
St. Clair Circuit Court
TIMOTHY JOHN WAIDELICH, LC No. 14-000583-DM
Defendant-Appellant.
Before: TUKEL, P.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
In this child custody matter, defendant-father appeals as of right the trial court’s order
granting plaintiff-mother’s motion for sole legal custody of their two minor children, HW and
AW. Defendant argues that the trial court (1) failed to consider the children’s reasonable
preferences, (2) failed to make a threshold finding regarding a change in circumstances before
considering the children’s best interests and (3) that no such change in circumstances existed, (4)
improperly considered the routine medical decisions at issue to have a bearing on joint legal
custody, and (5) based its determination of the best interests of the children on factual findings
that were against the great weight of the evidence. We affirm.
I. FACTS & PROCEDURAL HISTORY
Following their acrimonious divorce, the couple entered into a custody battle, wherein
they repeatedly petitioned the court system to help resolve their parenting disputes. In the instant
matter, the parties filed cross-motions seeking to modify the custody order and alter the
parenting time schedule. Both parents requested sole legal custody in order to make medical and
educational decisions for the children. The trial court held numerous evidentiary hearings over
the course of one year, and heard testimony from plaintiff, defendant, plaintiff’s counselor, the
children’s pediatrician since 2010, the children’s counselor since 2015, the children’s pediatric
infectious disease doctor, defendant’s therapist, the children’s school learning specialist, the
children’s school nurse, AW’s school teacher, and considered the video deposition of the
children’s ear, nose, and throat (ENT) specialist.
-1-
The hotly disputed issue in this case is the medical care of the children. From October
2016 to May 2017, the two children visited the pediatrician a total of 28 times. In between those
visits, defendant repeatedly took the children to after-hours clinics seeking antibiotics when the
children experienced symptoms like stuffy noses and sore throats. Most of those visits resulted
in one or more of the following diagnosis: ear infections, strep throat, stuffy nose, sore throat,
and sinus infection. Plaintiff became concerned with defendant’s aggressive approach to the
children’s medical care, which prompted her to seek sole legal custody. Defendant responded
with his own motion seeking the same.
The parties disagreed over how to characterize the nature and frequency of these medical
visits. Plaintiff believed the visits were medical child abuse and lodged a complaint with Child
Protective Services, which declined to investigate. Plaintiff testified that during their marriage
defendant wanted her to be sick all the time. Since their divorce, defendant would routinely take
the children to after-hours clinics and not notify plaintiff of the visits until it was too late for her
to attend. Defendant refused to share information with her about the clinic visits, and plaintiff
found out information by cold calling various facilities around the area. Plaintiff admitted that,
except for the clinic visits, she consented to all of the children’s medical treatments. Plaintiff
testified that during HW’s doctor’s appointment on March 3, 2017, the ENT raised the issue of
sinus surgery which upset HW. Plaintiff moved to comfort HW and defendant grabbed her hand
and squeezed as hard as he could. Plaintiff was afraid to be alone in doctor’s offices with
defendant after that, and defendant stalked plaintiff in the past. Plaintiff further testified that
defendant engaged in inappropriate behavior by spending too much time with the children at
their school, and by taking pictures of AW through her classroom window. Additionally,
defendant would give the children sweets even though HW was at risk for diabetes. Plaintiff did
not confront defendant about his behavior because she was afraid it would exacerbate these
problems.
Defendant believed that each visit was made out of medical necessity. Plaintiff’s failure
to continue the children’s antibiotic regimen during her parenting time resulted in the children
relapsing during defendant’s parenting time. Defendant testified that he never supported sinus
surgery for HW, and has always tried his best to communicate with plaintiff regarding the
children’s medical treatment and requested mediation on these matters, which plaintiff declined.
Defendant never sought treatment for the children without plaintiff’s consent, and he always
tried to see the children’s pediatrician before taking the children to a clinic. Defendant used to
walk his children into their school to comfort them during the divorce. However, he stopped that
and only continued to walk them in so that he could use the restroom, help the children carry in
their projects, or help install a server that he had donated to the school. Defendant testified that
he never grabbed plaintiff’s hand.
The various doctors who testified generally agreed that defendant was aggressive in
seeking treatment for his children, but that he acted appropriately and did not cross the line into
medical abuse. The children’s counselor testified that, although she was not capable of
diagnosing defendant with Munchausen’s syndrome by proxy, defendant did not display any of
the traits associated with that disease. Defendant’s therapist testified that he did not have
Munchausen’s syndrome by proxy. Plaintiff’s counselor testified that despite having never met
the children or defendant, she believed that defendant bullied plaintiff and that “emotional
violence” was present during the parties’ marriage.
-2-
The various school officials testified that HW was not receiving dyslexia testing because
the parties had not agreed whether HW should receive such testing through a public school or a
private service. Defendant’s habitual disruptions into the children’s school routine was
addressed, and defendant’s attention to his children’s medical needs was described as “a little
excessive.”
The trial court granted plaintiff’s motion and issued its findings of facts and conclusions
of law supporting its decision. This appeal followed.
II. PRESERVATION & STANDARD OF REVIEW
These issues before us involve both the factual findings and decision of the trial court. A
party need not take any special action to preserve an objection to either. MCR 2.517(A)(7); Reed
v Reed, 265 Mich. App. 131, 150, 163; 693 NW2d 825 (2005).
“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.’ ” Dailey v
Kloenhamer, 291 Mich. App. 660, 664; 811 NW2d 501 (2011), quoting MCL 722.28. The great
weight of the evidence standard of review instructs that “the trial court’s determination will be
affirmed unless the evidence clearly preponderates in the other direction.” Mitchell v Mitchell,
296 Mich. App. 513, 519; 823 NW2d 153 (2012). In child custody matters, an abuse of discretion
occurs where the result is “ ‘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.’ ” Shulick v Richards, 273 Mich. App.
320, 324-325; 729 NW2d 533 (2006), quoting Spalding v Spalding, 355 Mich. 382, 384-385; 94
NW2d 810 (1959). “Clear legal error” occurs when the trial court chooses, interprets, or applies
the law incorrectly. Fletcher v Fletcher, 447 Mich. 871, 881; 526 NW2d 889 (1994). This Court
defers to the trial court’s credibility determinations. Pierron I, 282 Mich. App. at 243.
III. ANALYSIS
Defendant advances several arguments on appeal. Each is discussed in turn.
A. REASONABLE PREFERENCES
Defendant argues that the trial court committed error requiring reversal when it failed to
conduct an interview and consider the reasonable preferences of the children and let the parties
stipulated that no interview was necessary or desirable. We disagree.
The Child Custody Act requires that the court consider the reasonable preference of the
child, if one exists. Maier v Maier, 311 Mich. App. 218, 224; 874 NW2d 725, 729 (2015), citing
MCL 722.23(i). This is true regardless of whether the parties wished for an interview. Kubicki v
Sharpe, 306 Mich. App. 525, 544–45; 858 NW2d 57, 68 (2014). “One of the . . . factors a trial
judge must consider in a custody dispute is the reasonable preference of the child, if the court
deems the child to be of sufficient age to express preference.” Bowers v Bowers, 190 Mich. App.
51, 55; 475 NW2d 394 (1991) (quotation marks and citation omitted). “Children of six, and
definitely of nine, years of age are old enough to have their preferences given some weight in a
-3-
custody dispute, especially where there was a prior custody arrangement.” Id. at 55–56, 475
NW2d 394. At the time the evidentiary hearing began, the children were 8 and 9 years old, and
as such, were “definitely . . . old enough to have [their] preference[s] [ ] given some weight . . . .”
Id.
Defendant argues that under Kubicki v Sharpe, 306 Mich. App. 525, 56; 858 NW2d 57
(2014), a trial court’s failure to interview a child constitutes error requiring reversal. Indeed, in
that case, the trial court’s failure to conduct an interview of the child and consider the child’s
reasonable preferences resulted in error requiring reversal. Id. However, “Kubicki did not
announce a new legal mandate that every child over a certain age be interviewed to ascertain a
reasonable preference.” Maier, 311 Mich. App. at 224. Rather, this Court has recognized that not
all children have the capacity to form such a preference. “[A] child’s presumed capacity [can] be
compromised by circumstances peculiar to that child’s life.” Id. at 225. “Additionally, an
interview is merely one avenue from which to adduce a child’s capacity to form a preference and
the preference itself, and not the sine qua non from which that determination must be made.” Id.
Here, the trial court considered whether interviewing the children would be necessary or
beneficial and ultimately agreed with the parties that an interview was not necessary. The trial
court reasoned that given the ages of the children and their maturity level, their input into the
vary narrow issue impacting their legal custody as to who would be the best decision-maker with
respect to their medical treatment would not be very beneficial to the trial court in reaching its
decision. The trial court specifically noted that the parents were able to agree on scheduling
issues, but disagreed on “bigger picture things,” and that the abstract nature of the issue of
appropriate medical care impacting the children’s legal custody would not be illuminated by an
interview with the children who tend to focus on concrete matters. The court emphasized the
nature of the difference between the legal authority to be the decision maker for the children and
the authority to participate in concrete activities with the children. The trial court additionally
noted that an interview only would serve to heighten the children’s anxiety, and that any input
from the children would not be weighed heavily in its determination anyway. The record,
therefore, supports a finding that the abstract nature of the narrow issue of legal custody focused
specifically on medical care and the maturity of the children were “circumstances peculiar” to
the lives of these children which would compromise their presumed capacity to form a
preference. Maier, 311 Mich. App. at 225. Because “an interview is merely one avenue from
which to adduce a child’s capacity to form a preference,” we cannot say that the trial court’s
decision not to interview the children in this case constitutes error requiring reversal. Id.
(emphasis added).1
1
Because “an interview is merely one avenue from which to adduce a child’s capacity to form a
preference,” Maier, 311 Mich. App. at 225 (emphasis added), the trial court is not required to
conduct an interview in every instance with all children as to their preferences simply because
they have the capacity to form opinions generally. As in this case, there may be instances where
children lack the capacity to make an informed decision as to preference due to the nature of the
custody issue before the trial court. Here, it would have been inappropriate for the trial court to
require the minor children to weigh in on an issue that, by its nature, the trial court determined
-4-
B. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES
Defendant argues on appeal that the trial court committed error requiring reversal when it
failed to make a finding on whether a “proper cause” or “change in circumstances” occurred
before conducting the custody hearing. Defendant argues that this threshold was not met
because the parties have experienced some disagreements over the medical care and treatment of
the children since the last custody order, but for the most part, they agree on which doctors the
children saw and which tests they underwent. We disagree.
A party seeking a change in the custody of a child is required, as a threshold matter, to
first demonstrate to the trial court either proper cause or a change of circumstances. MCL
722.27; Killingbeck v Killingbeck, 269 Mich. App. 132, 145; 711 NW2d 759 (2005); Harvey v
Harvey, 470 Mich. 186, 192; 680 NW2d 835 (2004). “If a party fails to do so, the trial court may
not hold a child custody hearing.” Corporan v Henton, 282 Mich. App. 599, 603–04; 766 NW2d
903, 906 (2009). This Court has explained the meaning of “proper cause” and “change of
circumstances”:
[T]o 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.
***
[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. [Vodvarka v Grasmeyer, 259 Mich
App 499, 512–514; 675 NW2d 847 (2003) (emphasis in original).]
the children were unlikely to comprehend due to their ages and maturity levels. The trial court
concluded that the appropriateness of medical treatment, including decisions regarding when,
where, and how often to seek treatment for various illnesses, was not a topic on which these
young children possessed a capacity to make an informed decision, and under these
circumstances, we cannot conclude that the trial court erred.
-5-
Although the threshold consideration of whether there was proper cause or a change of
circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary
hearing on the topic. Corporan, 282 Mich. App. at 605, citing Vodvarka, 259 Mich. App. at 512.
Here, the trial court decided to hold an evidentiary hearing on the topic and the evidence
adduced also was considered in making a determination regarding the children’s best interests.
This Court has not held that a separate hearing must be conducted before a custody decision may
be revisited, “nor is one necessarily required.” Mitchell, 296 Mich. App. at 518, citing Vodvarka,
259 Mich. App. at 512. “The trial court is merely required to preliminarily determine whether
proper cause or a change of circumstances exists before reviewing the statutory best-interest
factors with an eye to possibly modifying a prior custody order” Id.
The trial court considered whether this threshold had been met in its finding of fact and
conclusions of law before it considered the best-interest factors. The trial court was not required
to hold a separate evidentiary hearing on the matter, nor was the trial court required to issue a
separate ruling on the matter. Thus, defendant’s argument lacks any basis in the law.
Additionally, defendant’s argument that the threshold was not met lacks merit. “To
establish proper cause, the moving party must establish by a preponderance of the evidence an
appropriate ground that would justify the trial court’s taking action. Appropriate grounds should
include at least one of the 12 statutory best-interest factors and must concern matters that have or
could have a significant effect on the child’s life.” Mitchell, 296 Mich. App. at 517.
The trial court found that proper cause was established because “the children’s health and
education are two very important subjects relating to custody.” When parents cannot agree on a
child’s medical treatment and educational course, these topics can have significant effects on a
child’s well-being. Kloenhamer, 291 Mich. App. at 666. The parties’ failure to cooperate
resulted, at the time of the evidentiary hearing, in the children not having their annual physical,
vision, or dental appointments. In light of these circumstances, we cannot conclude that the trial
court erred when it found that the threshold had been met.
C. ROUTINE MATTERS
Defendant argues on appeal that treatment of the children’s allergies, ear infections, and
related illnesses are routine matters that should be handled by the parent exercising parenting
time, and are not important matters that implicate legal custody rights. We disagree.
Although significant disputes over a child’s medical treatment and education can be
sufficient to warrant review of the custody order, see Kloenhamer, 291 Mich. App. at 665–666,
disputes over minor allegations of contempt, visitation, or flexibility in parenting time are
insufficient to constitute proper cause or a change of circumstances. Vodvarka, 259 Mich. App. at
509–510.
This case straddles the line. On the one hand, none of the medical issues that the children
faced posed a significant risk to their overall health. They suffered from runny noses and sore
throats during a Michigan winter, and the bulk of the parents’ complaints about each other were
centered on how they treated each other during the scheduling and attendance of the children’s
medical appointments, rather than on the well-being of the children themselves. On the other
-6-
hand, the sheer number of visits over a short period of time is concerning, and defendant’s
insistence on seeking specialist treatments for the children for even the most routine of ailments
certainly raises the issues beyond normal parenting. Most convincingly though, is that the
parties’ failure to cooperate resulted in the children having not had their annual physical, vision,
or dental appointments at the time of the evidentiary hearing. Perhaps such appointments are
routine, but the failure of the parties to work together to meet the children’s basic medical needs
cannot be classified as unimportant or insignificant. See Kloenhamer, 291 Mich. App. 666
(finding that review of a custody order was warranted where the “parties’ disagreements [had]
escalated and expanded to topics that could have a significant effect on the child’s well-being”
such as how best to treat the child’s asthma and allergies). Therefore, defendant’s claim of
routineness fails.
D. BEST-INTEREST ANALYSIS
Defendant next argues that the trial court improperly found that certain best-interest
factors weighed against defendant.
“The trial court may not modify or amend a previous judgment or order or issue a new
order ‘so as to change the established custodial environment of a child unless there is presented
clear and convincing evidence that it is in the best interest of the child.’ ” Kaeb v Kaeb, 309
Mich. App. 556, 567; 873 NW2d 319 (2015), quoting MCL 722.27(1)(c). MCL 722.23 states:
[The] “best interests of the child” means the sum total of the following factors to
be considered, evaluated, and determined by the court:
(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.
-7-
(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.
(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.
Defendant takes issue with the trial court’s weighing of factor (c) because the parties
agreed on the vast majority of the children’s medical care issues. However, here plaintiff argued
that defendant’s actions were inappropriate and dangerous to the children who were being
subjected to unnecessary medical tests and treatments. Defendant argued that he was providing
appropriate care under the circumstances where plaintiff repeatedly failed to follow through with
the medicine regimen and the children repeatedly suffered relapses. The various doctors
generally agreed that defendant was aggressive in seeking treatment for his children, but that he
acted appropriately and did not cross the line into medical abuse. Essentially, the parties were
simply unable to agree on the nature or treatment of their children’s illnesses. Thus, this case
came down to a credibility contest, and considering that the parties have appeared before the
same circuit court judge since March 2014, the trial court was in a particularly strong position to
weight the parties’ credibility. In light of these circumstances, we cannot conclude that this
determination was in error.
Moreover, defendant’s argument that factor (c) should not count against him where the
parties were in agreement on most of the medical decisions misses the point. This factor does
not focus on whether the parties can agree about medical care, but whether the parties can
actually provide it. Regardless of how often the parties were once able to agree on this issue, by
the time of the evidentiary hearing, the parties’ failure to cooperate meant that the children had
not had their annual physical, vision, or dental appointments. Accordingly, defendant’s
argument is unpersuasive.
Defendant also argues that the trial court erred in its consideration of factor (h) because
plaintiff was more culpable in creating the delay for HW’s dyslexia testing. Defendant ignores
the fact that the trial court also considered defendant’s disruptive behavior at the children’s
school. The trial court noted that defendant’s habitual intrusions into the children’s school
routine was impeding HW’s ability to develop relationships with his peers. In light of these
facts, we cannot conclude that the trial court erred.
Concerning factor (j), defendant argues on appeal that the trial court erred when it found
that this factor weighed in favor of plaintiff because plaintiff was the uncooperative party.
Defendant points out that plaintiff refused defendant’s offer to mediate this dispute, and that
there was no evidence that defendant tried to bully plaintiff via text messages. However,
plaintiff explained her reluctance to mediate. She believed that the issues presented were
-8-
susceptible to compromise, and therefore, mediation would not be appropriate. The trial court
found this persuasive, and considering that the trial court was in a unique position to assess the
dynamics and dysfunctions between the parties, we cannot conclude that the trial court erred.
Defendant argues that the trial court erred when it weighed factor (k) in plaintiff’s favor
because there was no evidence of domestic violence. Defendant contends that plaintiff’s claims
of physical aggression were exaggerated and plaintiff’s therapist’s testimony regarding
“emotional violence” was made without any personal knowledge of defendant.
This factor concerns “[d]omestic violence, regardless of whether the violence was
directed against or witnessed by the child.” MCL 722.23(k). Defendant’s argument regarding
plaintiff’s counselor’s testimony merely speaks to the weight of that evidence, and there is no
record evidence to conclude that the trial court improperly weighed this testimony. Rather, the
trial court relied more heavily on the text messages between the parties and plaintiff’s testimony
that defendant grabbed her hand during an appointment with the ENT. Specifically, the trial
court noted that plaintiff’s version of events were substantiated by sarcastic text messages sent to
plaintiff from defendant on that same day. The trial court clearly found plaintiff credible, and
her account is enough to weigh this factor in her favor. See Bowers v Bowers, 198 Mich. App.
320 (1993) (finding that the father’s behavior weighed against him when he was insulting,
berating, and threatening the mother).
Defendant next argues that the trial court’s finding on factor (l) was erroneous because it
was improperly based on an assumption that defendant delayed HW’s disability testing and that
he sought medical treatments against plaintiff’s will, when in fact, plaintiff caused the delay in
testing and never objected to most of the medical treatment that defendant sought for the
children. Factor (l) is “[a]ny other factor considered by the court to be relevant to a particular
child custody dispute.” MCL 722.23(l). It is a “catch-all” provision. Ireland v Smith, 451 Mich.
457, 464 n 7, 547 NW2d 686 (1996). Again, defendant misses the point. The trial court’s focus
was not entirely on defendant’s ability to get along with plaintiff, but also was on the parties’
respective abilities to cooperate with medical professionals and school authorities, and
defendant’s inability to modify his behavior when confronted by professionals who advise him
that doing so would be in his children’s best interests. Accordingly, defendant’s argument fails.
Because none of these contested factors is supported by evidence preponderating in
defendant’s direction, the trial court’s findings must be affirmed. Kubicki, 306 Mich. App. at 542
(a trial court’s findings on each factor should be affirmed unless the evidence clearly
preponderates in the opposite direction).
V. CONCLUSION
Affirmed.
/s/ Jonathan Tukel
/s/ Michael J. Riordan
-9-