Alexus Moyea Sanders v. David William Fox ( 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
ALEXUS MOYEA SANDERS, UNPUBLISHED
June 1, 2023
Plaintiff-Appellant,
v No. 363698
Muskegon Circuit Court
DAVID WILLIAM FOX, LC No. 2015-263866-DS
Defendant-Appellee.
Before: MARKEY, P.J., and MURRAY and FEENEY, JJ.
PER CURIAM.
In this custody case, plaintiff appeals as of right the trial court’s order awarding primary
physical custody of the child to defendant. We affirm.
I. FACTUAL BACKGROUND
The minor child was born in December 2014, and in September 2015, the trial court
awarded plaintiff sole physical custody of the child, awarded defendant and plaintiff joint legal
custody, and granted parenting time as defendant and plaintiff agreed. From 2015 to 2019,
parenting time was as defendant and plaintiff agreed. However, when there were disagreements
or incidents, plaintiff took the child away from defendant even though defendant repeatedly
contacted plaintiff and wanted to see the child.
In June 2019, defendant moved to Georgia but attempted to remain in the child’s life. In
early July 2019, plaintiff and the child moved to Illinois without the trial court’s permission and
against defendant’s wishes. That same month, and in response to plaintiff moving out of state,
defendant moved for, and the trial court entered, an order for specified parenting time.
Defendant returned to Michigan in October 2020. Until plaintiff returned to Michigan in
early June 2022, plaintiff traveled between Illinois and Michigan at least monthly. From 2019 to
2022, plaintiff and defendant struggled to parent the child together. At times, plaintiff, who was
the child’s primary caretaker, struggled to share information about the child with defendant or
prevented defendant from talking with the child.
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In May 2021, defendant filed a motion for joint legal custody and primary physical custody
or, in the alternative, increased parenting time. In August 2021, a referee concluded that defendant
established a prima facie showing of proper cause or change of circumstances for his custody
motion to proceed. After a two-day trial, the trial court found that although an established custodial
environment existed with plaintiff, defendant proved by clear and convincing evidence that it was
in the child’s best interests to change custody and awarded defendant primary physical custody.
Plaintiff now appeals.
II. PROPER CAUSE OR CHANGE IN CIRCUMSTANCES
A. PRESERVATION OF ISSUE
An issue is preserved if it was raised, addressed, and decided by the lower court. Hines v
Volkswagen of America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005). Because the trial
court made a finding of proper cause or a change in circumstances while addressing defendant’s
motion, this issue is preserved.
B. STANDARD OF REVIEW
All custody orders must be affirmed on appeal unless the trial court’s findings were against
the great weight of the evidence, the trial court committed a palpable abuse of discretion, or the
trial court made a clear legal error on a major issue. MCL 722.28; Pierron v Pierron, 486 Mich
81, 85; 782 NW2d 480 (2010). Thus, we apply “three standards of review in custody cases.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). First, “[t]he great weight of the
evidence standard applies to all findings of fact. A trial court’s findings . . . should be affirmed
unless the evidence clearly preponderates in the opposite direction.” Id. Second, the “abuse of
discretion standard applies to the trial court’s discretionary rulings such as custody decisions.” Id.“An 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). Third, the
clear-legal-error standard applies to questions of law. Phillips, 241 Mich App at 20. “A trial court
commits clear legal error when it incorrectly chooses, interprets, or applies the law.” Id.C. ANALYSIS
In her brief on appeal, plaintiff argues that the trial court made a clear legal error by failing
to first find proper cause or a change in circumstances before addressing the merits of defendant’s
motion for a change in custody. MCL 722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499,
509; 675 NW2d 847 (2003). However, at oral argument, plaintiff conceded that the trial court was
not required to make these findings because this was the initial custody order. See Thompson v
Thompson, 261 Mich App 353, 361; 683 NW2d 250 (2004) (providing that a party does not need
to establish proper cause or a change in circumstances for “the trial court’s initial or ‘new’ custody
order . . . .”).
Nevertheless, the record shows that the trial court did find that proper cause or a change in
circumstances existed before addressing the merits of the motion. The record shows that the
hearing referee made a recommendation to the trial court, finding that proper cause or change in
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circumstances existed. The referee came to this conclusion because (1) plaintiff moved from
Michigan to Illinois without the trial court’s permission, (2) the trial court previously awarded
defendant significant parenting time, (3) defendant alleged that plaintiff prevented defendant’s
parenting time, and (4) plaintiff brought the child to Michigan with only two outfits. After 21 days
and a lack of objection from either defendant or plaintiff, the trial court affirmed the referee’s
finding and determined that defendant had presented a showing of proper cause or a change of
circumstances as required by MCL 722.27. Additionally, at the start of its decision after trial, the
court reiterated that proper cause or change of circumstances had been established. For these
reasons, we reject plaintiff’s argument.
III. BEST-INTEREST FINDINGS
A. PRESERVATION OF ISSUE
Whether a change of custody was in the child’s best interests was a central component of
the trial court proceedings. Consequently, this issue is preserved. Hines, 265 Mich App at 443.
B. ANALYSIS
Plaintiff first argues that the trial court made a clear legal error by finding that some of the
best-interest factors slightly favored or favored defendant.
A trial court may “not 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). Put
differently, the trial court must determine “whether the child has an established custodial
environment with one or both parents” before making a custody determination, Bofysil v Bofysil,
332 Mich App 232, 242; 956 NW2d 544 (2020), because that decision will determine the
appropriate burden of proof.
When a modification would change the established custodial environment of a
child, the moving party must show by clear and convincing evidence that it is in the
child’s best interest. If the proposed change does not change the custodial
environment, however, the burden is on the parent proposing the change to
establish, by a preponderance of the evidence, that the change is in the child’s best
interests. [Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010) (citations
omitted).]
The record shows that the trial court found, and defendant concedes, that an established custodial
environment existed with plaintiff. As a result, the trial court properly determined that defendant
was required to establish by clear and convincing evidence that awarding primary physical custody
to him was in the child’s best interests.
After a trial court properly identifies the proper burden of proof, it is required to evaluate
the proposed change in light of the child’s bests interests. Lieberman v Orr, 319 Mich App 68,
83-84; 900 NW2d 130 (2017). According to MCL 722.23, the “best interests of the child” means
the sum total of the following factors to be considered, evaluated, and determined by the trial court:
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(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.
A trial court “need not give equal weight to all the factors, but may consider the relative weight of
the factors as appropriate to the circumstances.” Sinicropi v Mazurek, 273 Mich App 149, 184;
729 NW2d 256 (2006). A trial court is “duty-bound to examine all the criteria in the ultimate light
of the child’s best interests.” Id. (quotation marks and citation omitted).
The trial court analyzed each best-interest factor and found that MCL 722.23(a), (c), and
(g) favored defendant and plaintiff equally, that MCL 722.23(b), (d), and (e) slightly favored
defendant, that MCL 722.23(f) and (j) favored defendant, MCL 722.23(h) did not favor either
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defendant or plaintiff, and MCL 722.23(i) and (k) were inapplicable. The trial court did not state
which party MCL 722.23(l) favored but implicitly found that it favored defendant.
Plaintiff challenges the trial court’s finding in regard to MCL 722.23(b), (d), (e), (f), (j),
and (l). Plaintiff contends that MCL 722.23(b), (d), (e), and (f) should have favored defendant and
plaintiff equally and that MCL 722.23(j) and (l) should have favored plaintiff, or defendant and
plaintiff equally. We conclude that the trial court’s best-interest findings for the specific best-
interest factors were overall not against the great weight of the evidence.
Plaintiff argues MCL 722.23(b) and (f) together. MCL 722.23(b) addresses “[t]he 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.” The trial
court found that MCL 722.23(b) slightly favored defendant because defendant and plaintiff took
responsibility for the child, but plaintiff had an arrest record. MCL 722.23(f) addresses “[t]he
moral fitness of the parties involved.” The trial court found that MCL 722.23(f) favored defendant
because plaintiff demonstrated very aggressive behavior, as well as criminal charges and
convictions.
The evidence presented supports the trial court’s findings regarding factor (b), but not
factor (f). With respect to factor (b), the court focused on the first clause of that factor, that is,
“[t]he capacity and disposition of the parties involved to give the child love, affection, and
guidance.” The court found that both parties took responsibility for those duties, and the evidence
supported that conclusion as the testimony indicated that defendant and plaintiff both cared for the
child, and both had the capacity to continue to do so. However, the court then focused on several
of plaintiff’s criminal convictions, as plaintiff testified about criminal charges and convictions
resulting from malicious destruction of property against either defendant or defendant’s family. In
Wright v Wright, 279 Mich App 291, 300-301; 761 NW2d 443 (2008), this Court addressed a
party’s repeated filing of complaints and police reports against the other parent, as well as other
antics, when considering factor (b), as it went to that party’s capacity and disposition to provide
guidance to the children. Unlike in Wright, here, there was no evidence that the criminal
convictions resulted from acts intending to sway the custody proceedings, but they were still
relevant to plaintiff’s disposition since the acts were against defendant and his family, with whom
the child had a positive relationship. Although she argues that her convictions are irrelevant and
stale, the trial court was not precluded from considering plaintiff’s convictions when evaluating
plaintiff’s capacity and disposition. The general time frames set out in Vodvarka relate to the
initial question of proper cause or change of circumstances, not to findings made under MCL
722.23. The trial court’s findings under MCL 722.23(b), that only slightly favored defendant,
were not against the great weight of the evidence.
With respect to factor (f), we agree with plaintiff that the trial court’s conclusion that it
slightly favored defendant was against the great weight of the evidence. Under factor (f), the court
must consider a party’s moral fitness in light of how each parent acts in the presence of the child.
In Fletcher v Fletcher, 447 Mich 871, 886-887; 526 NW2d 889 (1994), the Court explained as
follows:
Factor f (moral fitness), like all the other statutory factors, relates to a
person’s fitness as a parent. To evaluate parental fitness, courts must look to the
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parent-child relationship and the effect that the conduct at issue will have on that
relationship. Thus, the question under factor f is not ‘who is the morally superior
adult;’ the question concerns the parties’ relative fitness to provide for their child,
given the moral disposition of each party as demonstrated by individual conduct.
In its minimal findings under factor (f), the trial court made no mention of how plaintiff’s
aggressive behavior and prior criminal charges impacted plaintiff’s fitness to provide for the child,
though of course continued criminal activity resulting in jail or prison certainly would. But, the
trial court did not sufficiently explain these findings such that we can uphold the findings under
factor (f), which, absent any additional findings or evidence, should have been weighted equally.1
Plaintiff also argues MCL 722.23(d) and (e) together. MCL 722.23(d) addresses “[t]he
length of time the child has lived in a stable, satisfactory environment, and the desirability of
maintaining continuity,” while MCL 722.23(e) addresses “[t]he permanence, as a family unit, of
the existing or proposed custodial home or homes.” The trial court found that MCL 722.23(d) and
(e) slightly favored defendant because plaintiff, and presumably the child as well, frequently
traveled back and forth between states and there was uncertainty about whether plaintiff would
remain in Michigan given that plaintiff’s significant other was in Illinois.
The evidence presented supports the trial court’s findings. Although the trial court
assumed that the child traveled with plaintiff, the assumption was not unreasonable when
considering that plaintiff was the child’s primary caretaker and the child was not with defendant
when plaintiff traveled. Furthermore, the trial court’s hesitancy about plaintiff permanently
residing in Michigan was not unreasonable, considering plaintiff’s boyfriend of over a year
remained in Illinois, where plaintiff had previously resided, worked, and studied. The trial court,
when evaluating the circumstances together, was not unreasonable in concluding that plaintiff’s
travel and likely future travels impacted or would impact the child’s permanence and environment.
The evidence also supported the trial court’s finding that defendant had a good relationship with
plaintiff’s family that resided in Muskegon and that defendant’s family was also in Muskegon,
which provided significant permanence and stability for the child. The trial court’s findings on
MCL 722.23(d) and (e) were not against the great weight of the evidence.
MCL 722.23(j) addresses “[t]he 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” and cautions that a trial 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.” The trial court found that
MCL 722.23(j) favored defendant because there was insignificant testimony about how defendant
treated plaintiff, but plaintiff decided to withhold information about the child from defendant.
First, plaintiff takes issue with the trial court’s finding because there was testimony that defendant
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Additionally, plaintiff argues that her convictions existed before the trial court entered an order
regarding parenting time in 2019, so the trial court was prohibited from considering her convictions
in a subsequent order. Whereas a change in circumstance must exist after the entry of the last
custody order to modify that custody order, there is no similar time requirement for evaluating
proper cause or the best-interest factors. See Vodvarka, 259 Mich App at 514-515.
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routinely threatened not to return the child. Second, plaintiff takes issue with the trial court’s
finding that plaintiff withheld from defendant information about the child because plaintiff offered
defendant additional parenting time whenever plaintiff was in Michigan.
The evidence presented supports the trial court’s finding. Although there was testimony
that defendant once threatened not to return the child, the trial court focused on how defendant
treated plaintiff in light of supporting the child’s relationship with plaintiff. Moreover, there was
testimony, from defendant and plaintiff, that plaintiff withheld information about the child from
defendant. Offers of additional parenting time do not negate or overcome the harm caused by
withholding information regarding the child; the two are not mutually exclusive. Furthermore,
there was testimony that plaintiff withheld from defendant information about the child’s education
and medical providers. Specifically, evidence showed that plaintiff denied defendant contact with
the child when plaintiff was upset with defendant and when plaintiff learned that defendant’s fiancé
was pregnant. Additionally, plaintiff denied defendant parenting time when he was not paying
child support. These actions further support the finding that plaintiff did not encourage or facilitate
a close and continuing relationship with defendant but instead used the child as a pawn to punish
or show disdain for defendant.
The trial court, when evaluating the circumstances together, did not clearly err in
concluding that plaintiff was unwilling to foster the child’s relationship with defendant or that
defendant was more inclined to foster the child’s relationship with plaintiff. The trial court’s
findings on MCL 722.23(j) were not against the great weight of the evidence.
MCL 722.23(l) addresses “[a]ny other factor considered by the court to be relevant to a
particular child custody dispute.” The trial court identified two other factors that implicitly favored
defendant, but plaintiff only challenges one factor. The trial court considered the fact that plaintiff
worked the third shift, which meant that plaintiff’s parent watched the child at night. Plaintiff does
not challenge the validity of the trial court’s factual finding but does take issue with the fact that
the trial court punished plaintiff for maintaining employment to support the child. Although the
trial court did not elaborate on why plaintiff’s employment seemed to favor defendant, the
inference from the evidence is that, instead of punishing plaintiff, the trial court found plaintiff’s
evening shift less desirable from a parenting perspective than defendant’s employment schedule,
which was a more compatible fit for the child. In any event, this Court may not substitute its
judgment for that of the trial court. McIntosh v McIntosh, 282 Mich App 471, 478; 768 NW2d
325 (2009). As a result, the trial court’s findings under MCL 722.23(l) were not against the great
weight of the evidence, and we will not disturb the trial court’s analysis.
Plaintiff also argues that, under the presumption that the trial court should have given each
of the best-interest factors equal weight, the trial court made a clear legal error by determining that
the “sum total” of the best-interest factors favored a change in custody. Specifically, plaintiff
asserts that the arithmetic of the trial court’s findings did not justify a determination that defendant
satisfied the evidentiary burden of clear and convincing evidence.
“A court need not give equal weight to all the factors, but may consider the relative weight
of the factors as appropriate to the circumstances.” Sinicropi, 273 Mich App at 184. Neither the
trial court nor this Court is required to “mathematically assess equal weight to each of the statutory
factors.” McCain v McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). A “trial court need
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not make its custody determination on the basis of a mathematical calculation and may assign
differing weights to the various best-interest factors.” Berger, 277 Mich App at 712, citing
Sinicropi, 273 Mich App at 184. A finding regarding one factor does not necessarily countervail
the findings regarding the other factors. McCain, 229 Mich App at 131.
Given our conclusion, the trial court cannot be said to have committed a palpable abuse of
direction in weighing the best-interest factors and concluding that the “sum total” of the best-
interest factors warranted a change in custody. Contrary to plaintiff’s argument, there is no
presumption that the trial court gave equal weight to all the factors. Additionally, a trial court is
under no obligation to expressly state the relative weight, if any, placed on the best-interest factors.
Considering that the trial court found that none of the factors individually favored plaintiff, and
we have upheld the court’s findings on all but that under factor (f) (and on that, plaintiff admits
it’s only equal), the trial court did not abuse its discretion by determining that defendant established
by clear and convincing evidence that it was in the child’s best interests to change custody.
Affirmed.
/s/ Jane E. Markey
/s/ Christopher M. Murray
/s/ Kathleen A. Feeney
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