Mary Ilene McRoberts v. Kyle Andrew Ferguson , 322 Mich. App. 125 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
MARY ILENE MCROBERTS, FOR PUBLICATION
November 28, 2017
Plaintiff-Appellant, 9:05 a.m.
v No. 337665
Midland Circuit Court
KYLE ANDREW FERGUSON, LC No. 13-009563-DS
Defendant-Appellee.
Before: O’CONNELL, P.J., and MURPHY and K. F. KELLY, JJ.
MURPHY, J.
In this custody dispute, plaintiff appeals by right the trial court’s opinion and order
granting defendant’s motion for sole legal and physical custody of the parties’ minor child. We
affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The parties were never married and their child was born in March 2011. Sometime later
that year, defendant joined the United States Navy. It appears that there was little to no
communication between the parties until plaintiff sought child support in April 2013. Defendant
then sought to revoke paternity and requested DNA testing, which later established defendant’s
paternity by a high probability. In December 2013, the parties were awarded joint legal custody
and plaintiff was awarded sole physical custody. Defendant was ordered to pay monthly child
support.
Since that time, defendant sought and was awarded an increasing amount of parenting
time with the child. A reoccurring issue, however, was plaintiff’s repeated violations of the
court’s visitation orders. Specifically, plaintiff denied in-person visitations and “Skype” visits
between the child and defendant. Pursuant to a stipulated order entered in January 2016, the
parties resolved various issues that had been brought to the court’s attention. Specifically, it was
established that the child would only refer to defendant “as father, dad, [or] daddy,” as the child
had been referring to plaintiff’s boyfriend in that manner. Further, the court ordered that
defendant would receive “make-up parenting time” with the child in California, which is where
he was stationed. Shortly after the stipulated order was entered, however, defendant filed a
show-cause petition alleging that his current wife had flown “into Detroit to pick[]up the minor
child but plaintiff failed to show at the airport.” Following a March 2016 hearing, the trial court
found plaintiff “in contempt of court for willful violation of the visitation order” and cautioned
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that further violations would result in “30 days incarceration” and the child being placed in
defendant’s custody. The court also ordered that defendant would select a counselor in Michigan
for the child and placed the burden on plaintiff to object to the selection.
In May 2016, defendant filed another show-cause petition, alleging in part that plaintiff
“continues to support the minor child addressing Defendant as ‘Kyle’ and her boyfriend as
‘daddy[.]’ ” Defendant also alleged that plaintiff had failed to schedule an appointment for the
child with the selected counselor. After a June 2016 hearing, the court found plaintiff in
contempt of court. The court imposed a suspended 10-day sentence, conditioned on plaintiff’s
compliance with court orders. The court also ordered that the child would be “picked up” by
defendant’s wife and accompanied to San Diego, California, for summer parenting time with
defendant.
The child returned to Michigan and plaintiff’s custody to begin school in the fall of 2016.
In December 2016, defendant filed a show-cause petition alleging that only 17 out of a possible
34 Skype visits had occurred since the child had returned to Michigan. Defendant also averred
that plaintiff had failed to arrange counseling for the child. At the show-cause hearing, plaintiff
did not dispute those allegations. Other concerning matters included the child’s numerous
absences and “tardies” incurred for the 2016 school year, and that the child had arrived in
California the previous summer with untreated cavities. The trial court found plaintiff to be in
contempt of court with regard to the Skype visits and the lack of counseling. The court reasoned
that “each little thing on its own is not huge; but it is the conglomeration of all of those things
over time together that makes it contempt of court.” The court sentenced plaintiff to 30 days in
jail and awarded “temporary custody” to defendant.
In January 2017, defendant filed a supplemental petition requesting sole legal and
physical custody. A custody hearing was held on February 6, 2017. Defendant and his wife
testified that the child was adjusting well to Suffolk, Virginia, which is where defendant was
currently stationed. They provided positive academic reports, specifically that the child’s
recognition of “sight words” had increased significantly. They also indicated that they had
arranged for a doctor, counselor, and dentist for the child and that they were in the process of
arranging individual speech therapy, as the child was speaking at a substantially younger age
level. Defendant also informed the court that he would be stationed in Suffolk for the
“foreseeable future” and that his military duty no longer required deployments at sea. Defendant
acknowledged that the child “misses” plaintiff but also informed the court that he had paid for
Skype and telephone calls between the child and plaintiff while the latter was incarcerated. The
court heard testimony from plaintiff and her parents, and it took the matter under advisement. In
a 14-page opinion, the court found that there was proper cause and a change of circumstances to
warrant revisiting the custody order, “namely Plaintiff’s deliberate and repeated obstruction of
Defendant’s parenting time and relationship with the child.” The court then found by clear and
convincing evidence that it was in the best interests of the child for defendant to have sole legal
and physical custody. The court considered each best-interest factor, weighing six in defendant’s
favor while not expressly weighing any in plaintiff’s favor. Notably, with respect to factor (j),
the court stated that “[o]ne of, if not the biggest concern for this Court over the lifespan of this
case has been Plaintiff’s unwillingness to facilitate a close relationship between the child and
Defendant.” The court found that “Defendant is heavily favored under this factor.” The trial
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court awarded plaintiff parenting time in accordance “with the Midland County Long Distance
Parenting Plan.” This appeal followed.
II. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Plaintiff first argues that the trial court erred in finding proper cause and a change of
circumstances to warrant revisiting the existing custody order. We disagree. A trial court’s
order resolving a child custody dispute “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. “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). A trial court’s factual findings are against the great
weight of the evidence when “the evidence clearly preponderates in the opposite direction.”
Ireland v Smith, 214 Mich. App. 235, 242; 542 NW2d 344 (1995), mod on other grounds 451
Mich. 457 (1996).
Section 7 of the Child Custody Act, MCL 722.21 et seq., allows a trial court to “modify
or amend its previous judgments or orders for proper cause shown or because of change of
circumstances,” as long as the modification would be in the child’s best interests. MCL
722.27(1)(c). “[P]roper 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.” Vodvarka v Grasmeyer, 259 Mich. App. 499, 511; 675 NW2d
847 (2003). “[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.” Id. at 513
(emphasis omitted). 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.” Id. at 513-514.
Plaintiff points to our acknowledgment in Vodvarka that caselaw established that “minor
allegations of contempt or visitation complaints,” id. at 509-510, were insufficient to establish
proper cause or a change of circumstances and contends that the trial court relied on such
conduct in this case. First, we disagree with the premise that there were “minor allegations” of
contempt in this case. To the contrary, plaintiff was found in contempt of court on three separate
occasions, the last of which resulted in a 30-day jail sentence. Further, there were ongoing
“visitation complaints” in this case, including that plaintiff failed to produce the child at the
airport for a prearranged pick-up, causing defendant’s wife to needlessly fly from California to
Detroit. Second, as stated, the test for proper cause is an event that “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.” Id. at 511. And plaintiff’s interference with the child and defendant’s
relationship is plainly such an event. In addition to the parenting-time violations, plaintiff
repeatedly facilitated the child calling her now ex-boyfriend “dad” and calling defendant by his
first name. For those reasons, the court’s finding that proper cause existed was not against the
great weight of the evidence.
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Further, defendant’s circumstances had changed significantly since the last custody order
in December 2013. Throughout most of the proceedings, defendant’s military duty required him
to be deployed at sea for months at a time. At the custody hearing, however, defendant
explained that he is now essentially “land based.” Moreover, defendant was married in April
2014 and had purchased a home in Virginia, where he would be located for the foreseeable
future. Hence, defendant was now in a position to provide full-time physical care and custody to
the child. Further, there was sufficient evidence from which to conclude that “the material
changes have had or will almost certainly have an effect on the child.” Vodvarka, 259 Mich. App.
at 513-514. Specifically, defendant and his wife have addressed medical issues for the child,
such as untreated cavities and immunizations. They have also provided a counselor for the child
and have helped to greatly improve her recognition of “sight words.” Considering that evidence
in addition to defendant’s new living situation, it cannot be said that the evidence clearly
preponderated against the trial court’s finding that there was a sufficient change of
circumstances, allowing the court to consider a modification of the custody arrangement.
III. CHANGE OF CUSTODY
Plaintiff’s final argument is that the trial court erred by finding that defendant proved by
clear and convincing evidence that granting him sole legal and physical custody was in the
child’s best interests. We disagree. We review the trial court’s findings regarding the best-
interest factors under the “great weight of the evidence” standard. Fletcher v Fletcher, 447 Mich.
871, 881; 526 NW2d 889 (1994). We review the court’s ultimate custody decision for an abuse
of discretion. Phillips v Jordan, 241 Mich. App. 17, 20; 614 NW2d 183 (2000). In the context of
a child custody dispute, an abuse of discretion is found only in extreme cases wherein the trial
court’s decision is so palpably and grossly violative of fact and logic that it evidences the
exercise of passion or bias or a perversity of will. Rains v Rains, 301 Mich. App. 313, 324; 836
NW2d 709 (2013); Shulick v Richards, 273 Mich. App. 320, 324-325; 729 NW2d 533 (2006).
In this case, the trial court found that an established custodial environment existed with
plaintiff1 and therefore correctly concluded that defendant had the burden of proving by clear and
convincing evidence that modifying the custodial environment was in the child’s best interests.
MCL 722.27(1)(c); Pierron v Pierron, 486 Mich. 81, 92; 782 NW2d 480 (2010). MCL 722.23
defines the “best interests of the child” as “the sum total of the . . . factors” set forth in MCL
722.23(a)-(l), which are to be “considered, evaluated, and determined by the court.” “In child
custody cases, the family court must consider all the factors delineated in MCL 722.23 and
explicitly state its findings and conclusions with respect to each of them.” Spires v Bergman,
276 Mich. App. 432, 443; 741 NW2d 523 (2007). “This Court will defer to the trial court's
credibility determinations, and the trial court has discretion to accord differing weight to the
best-interest factors.” Berger v Berger, 277 Mich. App. 700, 705; 747 NW2d 336 (2008).
Plaintiff argues that the trial court erred in weighing the following best-interest factors:
1
Defendant does not dispute the trial court’s ruling with respect to the established custodial
environment.
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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.
* * *
(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. [MCL 722.23.]
We have reviewed the record and conclude that the evidence did not clearly preponderate against
the trial court’s findings on these factors. Ireland, 214 Mich. App. at 242.
Plaintiff contends that the trial court erred in finding that neither party was favored under
factor (a) when defendant “abandoned” the child until support proceedings were initiated.
Plaintiff’s argument focuses on defendant’s history with the child, but factor (a) calls for the
court to examine the “existing” “ties” between the parent and child. MCL 722.23(a). Since the
support obligation was imposed, defendant has received an increasing amount of parenting time
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with the child. At the time of the custody hearing, the child had been in his care for over a
month. Defendant described his relationship with the child as “the normal father/daughter
relationship I always wanted.” Although it was undisputed that the child missed plaintiff, there
was no testimony to suggest that the child did not also care for and love defendant. The trial
court’s finding that this was a neutral factor was not against the great weight of the evidence.
As for factor (b), the trial court found that the “distinguishing element of this factor arises
in the parties’ ability to provide the child guidance and continued education.” In weighing this
factor in defendant’s favor, the court noted the disparity between the child’s school attendance
under each parent’s care. The court also acknowledged testimony that the child’s recognition of
“sight words” had increased significantly while in defendant’s care and that defendant practiced
that skill with the child daily. Plaintiff argues that the trial court’s focus on school attendance
was “obviously imbalanced” as the child had only resided with defendant for a short period of
time. However, it was established that the child had nine absences, four of which were
unexcused, and numerous tardies in the first three months of the 2016 school year while under
plaintiff’s care. In contrast, in over a month in defendant’s care, the child had only missed a few
hours of school for a dentist appointment. Given the disparity, we fail to see how the trial court
erred in relying on that evidence. Further, plaintiff does not acknowledge the child’s increased
proficiency in sight words. She fails to demonstrate that the court’s finding was against the great
weight of the evidence. Additionally, the same evidence sufficiently supports the trial court’s
finding that factor (h) weighed in defendant’s favor.
With respect to factor (c), plaintiff fails to dispute the ample evidence relied on by the
trial court in determining that defendant had a great capacity to provide life’s necessities for the
child. For example, the court noted that defendant was “a Second Class Petty Officer,” that
defendant and his wife addressed the child’s untreated cavities, and that they were in the process
of arranging individual speech therapy for the child. Plaintiff asserts that defendant took the
child to “specialists” and would arrange “expensive follow-up appointments in Michigan” in
order to reduce his child support obligation. Plaintiff has effectively abandoned this argument by
failing to identify support in the record for this assertion.2 “This Court will not search the record
for factual support for a party’s claim.” McIntosh v McIntosh, 282 Mich. App. 471, 485; 768
NW2d 325 (2009). Further, it is not apparent from the record that any of the costs associated
with “specialists” were unnecessary. Even assuming that defendant’s child support obligation
was reduced, there is still ample evidence to support the trial court’s finding on this factor.
Next, plaintiff argues that there was error in weighing factor (d) in defendant’s favor
where the child had lived with her “for nearly all of the child’s life” and had only been in
defendant’s temporary custody for “two months” at the time of the hearing. The trial court
acknowledged that the child had lived with plaintiff most of her life but also found that period to
be marked by instability, noting numerous residences during that time and plaintiff’s various
debts. In contrast, defendant had purchased a home in Virginia and was current on all his bills.
2
Indeed, aside from citations to the trial court’s opinion, plaintiff fails to provide any record
citations as required by MCR 7.212(C)(6) and (7).
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The court reasoned that “[t]he change in custody requested by Defendant would keep continuity
with the current living arrangement, which it is clear Defendant and his wife have gone to great
lengths to establish for the child in the short time they have had custody.” We fail to see how the
court erred in considering the desirability of continuing the “temporary custody” arrangement,
especially when the child was excelling in school and defendant had already arranged doctors, a
counselor, and individual speech therapy for the child. The evidence did not clearly
preponderate against the trial court’s finding that factor (d) weighed in defendant’s favor. The
same can be said for factor (e), which the trial court weighed based on similar evidence.
Plaintiff also contests the trial court’s finding under factor (f) that there was no evidence
presented regarding either party’s moral fitness. Plaintiff again asserts that the court should have
considered defendant’s “abandonment” of plaintiff and the child. While we do not rule that the
trial court was precluded from considering defendant’s behavior before the support obligation
was entered in 2013, we cannot say that the court erred by choosing to focus on the parties’ most
recent behavior. After defendant’s paternity was determined, it appears that he fulfilled his child
support obligation, followed court orders, and sought an ever increasing role in the child’s life.
Further, defendant disputed that he ever abandoned the child. The trial court’s finding was not
against the great weight of the evidence. For the same reasons, we reject plaintiff’s argument
that the court should have considered this matter under factor (l) as “[a]ny other [relevant]
factor.” MCL 722.23(l).
Plaintiff argues that factor (i) weighs in her favor because the child expressed a
preference to live with her. The trial court interviewed the child and stated that it took her
preference into consideration but did not reveal the preference. Plaintiff’s claim is therefore not
supported by the record.3
Plaintiff also challenges the trial court’s finding that defendant was heavily favored under
factor (j), which, again, concerns one parent facilitating and encouraging a close relationship
between the child and the other parent. The trial court thoroughly recounted how plaintiff
repeatedly violated its orders “that were specifically imposed to try and foster a relationship
between Defendant and his daughter, his being on the other side of the country.” The court also
noted plaintiff’s parents’ hostile attitude toward defendant and his wife and that plaintiff had
failed “to list Defendant as a parent on all documents and forms pertaining to the child,” whereas
defendant had accomplished that task. Plaintiff does not address the trial court’s specific
findings or the mountain of evidence supporting them. Instead, she merely maintains that
“[b]oth parties have obstructed the parenting time of the other party” without providing record
citations for the position that defendant “intentionally” caused some of the missed Skype visits.
See McIntosh, 282 Mich. App. at 485. Considering the numerous contempt orders issued against
3
We note that the child was only five years old at the time of the custody hearing. Moreover,
even if the child expressed a preference for plaintiff, we would still conclude that the trial court
did not err in finding that there was clear and convincing evidence supporting the change in
custody.
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her on this matter, plaintiff’s contention that factor (j) should have been evaluated as a neutral
factor is simply without merit.
Finally, plaintiff argues that the trial court erred by finding that factor (k), domestic
violence, did not weigh in either party’s favor. Plaintiff testified that defendant once pushed her
against her vehicle in the presence of the child. The trial court found this testimony lacking in
credibility. We defer to the court’s credibility determinations. Shann v Shann, 293 Mich. App.
302, 305; 809 NW2d 435 (2011).
In sum, there were legitimate concerns with plaintiff’s care of the child, including
untreated cavities and numerous unexcused absences from school. Defendant has addressed
those issues while also arranging for counseling and individual speech therapy for the child.
Additionally, the court plainly placed great weight on factor (j), which was within its discretion.
Berger, 277 Mich. App. at 705. “It is presumed to be in the best interests of a child for the child
to have a strong relationship with both of his or her parents.” MCL 722.27a(1) (governing
parenting time). It can be inferred from the court’s analysis that it doubted whether the child
would be able to have a strong relationship with defendant if plaintiff retained custody. Indeed,
plaintiff’s repeated acts of contempt relative to parenting time were troubling and reflected an
inability by plaintiff to facilitate and encourage a close and continuing parent-child relationship
between defendant and his daughter. Conversely, there was no evidence suggesting that
defendant had interfered with the relationship between plaintiff and the child. The trial court’s
custody decision did not constitute an abuse of discretion.
Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs under
MCR 7.219.
/s/ William B. Murphy
/s/ Peter D. O'Connell
/s/ Kirsten Frank Kelly
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