                          STATE OF MICHIGAN

                           COURT OF APPEALS



AMANDA ANN PAULY,                                                   UNPUBLISHED
                                                                    August 23, 2016
               Plaintiff/Cross-Defendant-
               Appellant,

v                                                                   No. 330805
                                                                    Presque Isle Circuit Court
JEFFREY BERNARD HELTON,                                             LC No. 15-084054-DS

               Defendant/Cross-Plaintiff-Appellee.


                                       AFTER REMAND

Before: GLEICHER, P.J., and SAWYER and M. J. KELLY, JJ.

PER CURIAM.

        We remanded this case to the circuit court with instructions to anchor its custody decision
to the best-interest factors of MCL 722.23. See Pauly v Helton, unpublished opinion per curiam
of the Court of Appeals, issued May 17, 2016 (Docket No. 330805). On remand, the court took
up-to-date evidence at a continued hearing before analyzing each of the statutory factors. The
court then reaffirmed its earlier order granting primary physical custody of the couple’s daughter
to Amanda Pauly and of the couple’s oldest son to Jeffrey Helton while awarding the parties
joint physical custody of their youngest son. We now affirm.

                           I. UPDATED EVIDENTIARY HEARING

       The circuit court originally accepted evidence regarding the parties’ custody dispute at an
August 5, 2015 hearing. At the continued evidentiary hearing on remand, the parties provided
up-to-date information regarding their children’s development.

       Pauly and Helton’s daughter, MH, is now 17. She will be a high school senior this fall
and plans to augment her schedule with college courses. Pauly testified that MH had spent no
overnights with her father since the original custody order. However, Helton followed MH’s
academic progress on the school’s online parent portal and MH and Helton have worked toward
healing their strained relationship. Helton testified that he is home during the day while Pauly is
not. He has observed various teenage visitors while MH is left alone. Helton reported that the
teens used marijuana on the property. Pauly confronted MH about Helton’s reports but MH
denied any wrongdoing. Helton elicited testimony that Pauly had left MH home alone
unsupervised for a long weekend while Pauly was vacationing in Pennsylvania. Pauly admitted
                                                -1-
that she did not tell Helton that MH would be left home alone and did not ask Helton to
supervise her.

        CH is now 13½. His academic performance was “very rocky” after the court’s earlier
order, but he brought his grades up by the end of the school year. Pauly testified that she only
sees CH “once in a great while.” She frequently texted and called him and showed up for
surprise visits, but CH had not been receptive. Pauly opined that Helton used emotional
blackmail to achieve this result. Helton testified that he tried to convince CH to visit his mother
and even created pretexts for CH to go over when Pauly was home. Helton in turn accused
Pauly of interfering with his relationship with the children. Specifically, Helton noted that he
often texted Pauly pictures of the children when they are in his care and she did not reciprocate.
Helton claimed that he mows Pauly’s lawn and asked a friend to plow her driveway as further
evidence of his good will.

         JH is almost seven and will enter the second grade in the fall. His first grade
performance was low and his teacher recommended holding him back a year so he could
improve his reading skills. Pauly and Helton disagree on this issue. Pauly wants JH to repeat the
first grade. Helton believes holding JH back because of his performance in one subject would be
counterproductive, and that additional support should be sought instead. Pauly admitted that
both parents have a close bond with JH and he enjoys being at both houses. But Pauly accused
Helton of ignoring the pediatrician’s nutritional advice to remedy a digestive condition. The
recommended course was to reduce dietary sugar levels, which was especially important, Pauly
asserted, because Helton is diabetic, a condition that can be hereditary. Since Helton moved out,
it became more difficult for Pauly to discipline JH. When given chores, JH becomes angry and
walks next door to visit his father. Helton also has been uncooperative in training JH to sleep in
his own room. As a result, JH does not want to sleep at Pauly’s house where he is required to
sleep in his own bed instead of with his parent. Helton chastised Pauly for her lack of discipline
in allowing JH to run off in this manner.

        Helton remained unemployed at the continued hearing. Helton’s application for Social
Security Disability Income (SSDI) was denied and he has appealed that ruling. In the past 10
months, Pauly witnessed Helton doing physical labor despite his claimed disability, including
“load[ing] wood” and making house repairs. To her knowledge, Helton had briefly worked in a
consignment shop and earned goods in exchange for tasks. Helton contradicted Pauly’s
testimony in this regard. Helton claimed that he earned money by selling goods on the Internet.
He received those goods in exchange for volunteering at a local resale shop. Helton survived
from Medicaid and $280 monthly child support. Overall, Helton testified that his gross monthly
income is less than $400. He lives rent-free and outlined $244 in specific monthly expenses.
However, Helton admitted that he bears monthly obligations in excess of his income to repay
outstanding child support arrearages for his three older children. To make ends meet, Helton
takes loans and gifts from friends, such as a hot water heater given free of charge.

        Pauly, on the other hand, earned a raise to $13.78 an hour at Advance America since the
last hearing. She has only one more semester at Kirtland Community College where she is
studying health information technology. She hopes to then secure a position with higher pay or
hours more conducive to raising a family.


                                                -2-
       Pauly’s boyfriend, Shawn Guertin, moved into her home in January 2016. The two have
been romantically involved for 1½ years. Guertin is 38 and has two children aged eight and four,
of whom he has shared custody. Pauly reported that the two families have intermingled well.
Guertin pays Pauly rent, which covers roughly half of the household expenses.

        Pauly’s counsel elicited testimony to remind the court that Helton had once embarrassed
the family by swearing at the mother of a boy who beat CH at a wrestling match. Pauly
presented a letter issued by the Onaway Schools superintendent on November 20, 2015,
prohibiting Helton from entering any Onaway school building. The prohibition was entered after
several incidents of “inappropriate behavior” establishing “a pattern that is no longer excusable
or acceptable to the School.” The letter advised Helton that he had “demonstrated your lack of
reasonableness when you interact with the majority of every staff member in this building, and
quite frankly you make the majority of the staff here very uncomfortable in your presence.”
Pauly also presented the cover sheet the elementary school principal, Mindy Horn, attached
when she faxed the letter to Pauly. Horn commented, “Detrimental because he is unable to
participate in their education in any way. Would be better for schooling needs for mom to have
them during the week.” Pauly complained that Helton did not share information regarding CH’s
education with Pauly after his ban so she could handle matters. Pauly admitted, however, that
the information was available online for her review.

       Helton explained that “there’s been three incidents” underlying the school district’s
finding of a “pattern.” The court would not allow Helton to elaborate. Helton admitted that he
had a criminal record for drunk driving, illegally transferring a license plate tag, embezzlement,
and writing nonsufficient funds checks. The last of these convictions occurred in the 1990s and
no new evidence had been uncovered since the last hearing.

       Pauly also presented screen shots of Facebook conversations in which Helton took part.
Helton admitted that the documents revealed that he engaged in arguments on the posts of
teenage girls regarding the existence of God. In the conversation stream, a third-party advised
Helton that it was inappropriate to tell a teenage girl to “fuck off” when commenting on her post.
Helton excused his behavior, claiming “I’m a very atheist person, and when somebody posts
something, and it is directed towards me, I do take an offense.” He admitted that he could
“[i]gnore it” but felt it was his right to comment in such a manner because “this is social media.”

        The hardest part of the court’s earlier order, in Pauly’s estimation, was the division of the
children into two households. She lamented the lack of family time for the siblings as there was
no court-ordered time for them to live under the same roof. She therefore requested that the
circuit court reconsider its position.

                                      II. CUSTODY ORDER

        Following the evidentiary hearing, the circuit court issued an opinion and order
considering the best-interest factors of MCL 722.23. In relation to factor (a), “[t]he love,
affection, and other emotional ties” between the parents and children, the court found the parties
equal in relation to JH. The factor weighed in Pauly’s favor in relation to MH, and Helton’s in
relation to CH. The court weighed this factor based on the parties’ testimony regarding the
current status of their relationships with the children.

                                                -3-
        Factor (b) measures the parties’ “capacity and disposition . . . 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 court found that this factor favored Helton despite his ban from
the school. Historically, Helton had been the stay-at-home parent while Pauly worked. Even
after the ban, Helton kept up-to-date on the children’s progress through email contact with
teachers, monitoring their grades online, and creating a daily work chart for CH. Even knowing
that Helton was banned from the schools, Pauly did not step up her involvement.

        The court found that factor (c), “capacity and disposition . . . to provide the child with
food, clothing, medical care . . ., and other material needs,” weighed in Pauly’s favor. Pauly has
been the sole breadwinner for several years and works fulltime. She also attends college to
improve her future earning capacity. Helton, on the other hand, was at the mercy of handouts
from friends to provide for his children and his future income hinged on his SSDI appeal.

        Factor (d) takes into account “[t]he length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining continuity.” The court noted that
MH has always lived in a home with Pauly while CH has always lived in a home with Helton,
only leaving the residence of the other parent for good after the court’s August 31, 2015 order.
JH on the other hand enjoyed shared custody but resided most days with Pauly. Accordingly, the
court found the parties equal with relation to MH and CH,1 and that the factor weighed in Pauly’s
favor in relation to JH.

         Under factor (e), the court considered “[t]he permanence, as a family unit, of the existing
. . . custodial . . . homes.” The court found the parties equal after considering where each child
had lived in the last 10 months and Pauly’s introduction of a new romantic partner to her home.

        The court found the parties equal in relation to factor (f), “the moral fitness of the
parties.” The court considered that Pauly had introduced an unrelated male into her home and
Helton’s ill-advised Facebook comments, but found that neither impacted their parenting ability.
The court also acknowledged that Helton’s temper had resulted in his ban from school property.
The court determined that this ban did not impair his ability to participate in his children’s
education and “he was able to navigate around that hurdle.”

        The court found the parties equal in relation to their “mental and physical health” under
factor (g). The court did not list any particular issues facing the parties, but noted that none
interfered with their parenting ability.

        The court considered the improved school records of MH and CH and their custodial
parent’s influence on that progress under factor (h), the child’s “home, school, and community
record.” Accordingly, the court found that this factor weighed in favor of Pauly in relation to
MH and Helton in relation to CH. The court determined that JH was “too young to have
established a record in this regard,” and therefore held the parties equal.


1
 To be more accurate, the court should have ruled that the factor favored Pauly as to MH and
Helton as to CH.


                                                -4-
        It appears that the court conducted renewed in camera interviews with the children. The
court indicated that it took the preferences of the children into consideration under factor (i).

        The court then found the parties equal in relation to factor (j), “[t]he willingness and
ability of the parties to facilitate and encourage a close and continuing parent-child relationship”
with the other parent. In regard to this factor, the court determined that CH’s “reluctance” to
visit his mother “seems to be in spite of and not because of [Helton’s] efforts to promote more
interaction.”

       The court found that factor (k), gauging domestic violence, weighed slightly in Pauly’s
favor. This was based on Helton’s “acknowledge[ment] that he can be verbally abusive.”

        Under the catch-all factor, (l), the court considered that it is generally in the best interests
of siblings to keep them together. Although “[a]t first blush” the court’s August 31, 2015
custody order seemed to split up the children, the children remained in close contact as they live
in neighboring houses and may “go back and forth” at will. They also attend the same school.
Ultimately, the court found “it would be cruel to add” to the difficulty facing the children by
their parents’ separation to “force[] separation of the child from the parent with whom s/he had
the strongest bond.”

                                           III. ANALYSIS

       Pauly continues to challenge the circuit court’s custody order.

       Three different standards govern our review of a circuit court’s decision in a
       child-custody dispute. We review findings of fact to determine if they are against
       the great weight of the evidence, we review discretionary decisions for an abuse
       of discretion, and we review questions of law for clear error. Fletcher v Fletcher,
       447 Mich 871, 876-877; 526 NW2d 889 (1994). A clear legal error occurs when
       the circuit court “incorrectly chooses, interprets, or applies the law . . . .” Id. at
       881. [Kubicki v Sharpe, 306 Mich App 525, 538; 858 NW2d 57 (2014).]

We must affirm all custody orders on appeal unless the trial court’s findings were against the
great weight of the evidence, the court committed a palpable abuse of discretion, or the court
made a clear legal error on a major issue. MCL 722.28; Pierron v Pierron, 486 Mich 81, 85; 782
NW2d 480 (2010). In reviewing the circuit court’s factual findings regarding the best-interest
factors, we must not “substitute [our] judgment . . . unless the factual determination clearly
preponderates in the opposite direction.” Pierron, 486 Mich at 85 (quotation marks and citation
omitted). We are also bound to defer to the circuit court’s assessment of witness credibility.
Shann v Shann, 293 Mich App 302, 305; 809 NW2d 435 (2011).

        Pauly contends that the circuit court’s decision to split the siblings was against their best
interests. She asserts that the court does not appreciate the impact of the split on the children. In
her opinion, it is insufficient that the children live next door to each other and can “go back and
forth” at any time. The difference in parenting styles and rules between the homes “shows how
destructive and disruptive this split physical custodial arrangement” has been, she urges.



                                                  -5-
       This Court has recognized the importance of protecting sibling bonds, but not at the
expense of an individual child’s wellbeing.

       The sibling bond and the potentially detrimental effects of physically severing
       that bond should be seriously considered in custody cases where the children
       likely have already experienced serious disruption in their lives as well as a sense
       of deep personal loss. Ultimately, however, it is the best interests of each
       individual child that will control the custody decision. . . . [I]n most cases it will
       be in the best interests of each child to keep brothers and sisters together.
       However, if keeping the children together is contrary to the best interests of an
       individual child, the best interests of that child will control. [Wiechmann v
       Wiechmann, 212 Mich App 436, 439-440; 538 NW2d 57 (1995).]

       Incumbent on the trial court . . . is the duty to apply all the statutory best interests
       factors to each individual child. To fully discharge this duty, and arrive at a
       decision that serves a particular child’s best interests, trial courts must recognize
       and appreciate that implicit in the best interests factors themselves is the
       underlying notion that as children mature their needs change. And, as a child
       progresses through the different life stages, what they need from each parent
       necessarily evolves therewith. Thus, what may be in the “best interests” of an
       eight-year-old child may materially differ from the “best interests” of that child’s
       thirteen-year-old sibling. Accordingly, the best interest[] factors must be fluid
       enough in their application to accommodate these differences. Indeed, unyielding
       judicial adherence to the notion that a child’s best interests requires that siblings
       remain in the same household, may very well, in some cases, create a judicial
       straightjacket that brings an individual child’s personal growth to a screeching
       halt. [Foskett v Foskett, 247 Mich App 1, 11-12; 634 NW2d 363 (2001).]

       Contrary to Pauly’s challenge, the circuit court expressly addressed the impact of its split
custody award on the children in its opinion on remand. The court emphasized that the children
go to the same school, live in neighboring houses, and are free under the custody award to go
back and forth between their parents’ homes as they please. Differing parenting styles are
confusing to children in any custody case, but no evidence supports that the confusion was
elevated in this case merely because the children do not live together under one roof.

        Pauly also challenges the circuit court’s conclusions under several best-interest factors.
She first contends that the circuit court erred in weighing factor (b) in Helton’s favor. Pauly
contends that the court improperly focused on the parties’ historical patterns in providing for the
children’s education instead of their “capacity and disposition” to provide for their educational
needs. Pauly emphasized testimony at the earlier evidentiary hearing that she helped all the
children with their math homework as she was also in school and more familiar with the topic.
In the 10 months that CH lived exclusively with Helton, his math grade fell, proving Pauly’s
pivotal role in his education, she urges. Pauly further questions how Helton can provide for the
children’s educational needs when he has been banned from school property due to his
threatening behavior.



                                                 -6-
        We cannot conclude that the circuit court’s findings were against the great weight of the
evidence. Even after the superintendent prohibited Helton’s presence on school property, Helton
remained actively involved in the children’s education. Helton monitored MH’s and CH’s
grades online. When CH’s performance fell, Helton created a daily work journal to keep CH on
track and communicated with his teachers via email. Pauly admitted at the earlier hearing that
she rarely communicated with the children’s teachers and did not attend parent-teacher
conferences because of her work schedule. Pauly did not claim that these circumstances had
changed during the 2015/2016 school year. Moreover, although Pauly knew she could review
the older children’s grades online, she never did so.

         In relation to JH, Helton explained the reasons he did not want his son to repeat the first
grade. Helton described the extra reading assistance he had provided and would continue to
provide to JH and gave examples of how Pauly and her mother could assist as well. Helton
testified that Pauly procrastinated in meeting with JH’s teacher to discuss the situation, and when
she finally did so, that contact was inadequate.

        Ultimately, we recognize that Pauly has a busy schedule of work and school while Helton
is unemployed and therefore has more time to devote to the children’s educations.
Notwithstanding Pauly’s work and school commitments, Helton’s involvement tips the scales in
his favor under this factor.

        Pauly challenges the weight given to the parties under factors (d) and (e). She
emphasizes that the children all lived together in the home Pauly still resides in from MH’s birth
through June 2015. In that home, each child has his or her own bedroom, while the boys choose
to sleep in Helton’s room at his house. Pauly describes Helton’s living arrangements as unstable
as he has no lease and his continued residence depends on the good graces of a friend. Pauly
questions the stability of the home as well because Helton remains unemployed and still has not
secured SSDI. As a result of this financial difficulty, his home was without water for an
extended period and he needed to connect his house to Pauly’s water system with a garden hose.
He only recently secured a hot water heater so his children could bathe. Weighing in her favor,
Pauly posits, is that her boyfriend of 1½ years has moved in. She asserts that he is a positive
influence, gets along well with her children, and shares in household expenses and duties. Pauly
further notes that her boyfriend attended the court-mandated SMILE program while Helton still
has not participated.

        Following the parties’ June 2015 physical separation, CH voluntarily spent almost all his
time in Helton’s residence despite that he had lived in the neighboring house since birth with his
mother as well as his father. According to Pauly, CH pulled away from her even before that,
spending time solely with Helton after their November 2014 breakup. As such, the family unit in
CH’s eyes has consisted of himself and Helton for almost two years. We cannot fault the circuit
court for crediting the permanence of that unit. Similarly, MH has spent most of her time with
Pauly, both before and after the separation.

        Although Pauly contends that factor (d) cannot weigh in Helton’s favor because his home
is not “stable,” she produced no evidence in this regard. It is true that Helton is living in the
neighbor’s vacated home on charity and without a lease. There simply is no evidence, however,
that the property owner intends to evict Helton at any point in the future. Rather, the property

                                                -7-
owner continues to pay the property taxes and home owner’s insurance and benefits from
Helton’s maintenance and improvement of the property. The evidence is stronger that the house
itself is not “satisfactory.” For example, the property previously did not have water service or a
hot water heater. Helton has since secured both. Before that, CH was not impacted; he needed
only walk next door to bathe and gather clean clothes.

         Pauly questions how the court could find the parties equal in relation to factors (f) and
(g), moral fitness and mental and physical health. Pauly notes evidence suggesting that Helton
suffers from anger issues. She accuses Helton of using CH’s image as his Facebook profile
picture to lure teenage girls into friending him. She also suggests impropriety in Helton allowing
the boys to sleep in his room when they are at his home. In relation to physical wellbeing, Pauly
insists that Helton’s medical conditions impact his parenting ability. Helton has not worked in
several years because of his physical complaints. As such, he cannot provide for his children’s
basic needs.

        The record supports that Helton likely has undiagnosed mental health issues that impact
his ability to parent his children. It is undisputed that Helton is easily angered and dissolves into
profanity even in front of the children and their friends and at school events. Helton’s behavior
estranged him from MH, who has only recently expressed willingness to work on healing the
father-daughter relationship. Helton’s behavior also intimidated and frightened school officials,
leading to his ban. Even though Helton has found a way to remain involved in the children’s
education, this situation must be a source of embarrassment to the children. Accordingly, the
circuit court should have found that factor (g) weighs in Pauly’s favor.

        In relation to moral fitness under factor (f), however, Pauly’s implications of wrongdoing
are without foundation. We agree with Pauly that Helton’s exchanges with teenagers on
Facebook are concerning, but not for the reason she suggests. There is no evidence that Helton
lured these minors to friend him on Facebook by using a picture of CH on his profile. Many
parents use images of their children instead of themselves out of a sense of pride. And the
minors in question are familiar with both Helton and his children, supporting that they would
realize “Jeff Helton” is the father, not the son. Rather, it is Helton’s comments on posts made by
minors that are concerning. Helton’s angry outbursts and profane language are just as
inappropriate in writing as they are in person. His Facebook commentary bolsters our belief that
the circuit court erred in weighing factor (g).

        Pauly also implies something sinister in Helton allowing CH and JH to sleep in bed with
him. We find this implication bizarre as Pauly has never accused Helton of sexually abusing
their children and there is absolutely no evidence of such abuse. Clearly, Pauly prefers JH to
sleep in his own room while in her house. This is reasonable. And her work in this regard is
certainly derailed when Helton does not enforce the rule in his home. Pauly is legitimately
frustrated by this. But this frustration is no reason to resort to innuendo rather than evidence.

        In relation to factor (j), Pauly makes several complaints, but most are unrelated to
Helton’s “willingness and ability” to facilitate her relationship with her children. That MH and
JH “express[] disappointment” in Helton’s favoritism of CH has no impact on Pauly’s
relationship with her children. Neither does Helton allowing CH to sleep in his room or Helton’s
violent outbursts at school. However, she does argue that Helton interferes with her relationship

                                                -8-
with JH by frustrating her parenting goals. She cites JH’s escapes to Helton’s home to avoid
obedience, Helton’s refusal to assist her solo-sleep training, and Helton’s ignoring JH’s dietary
needs. The parties clearly need to learn to work together as they share joint physical custody of
JH. The failure to cooperate appears mutual, however, supporting the court’s conclusion.

       Pauly also contends that Helton uses emotional blackmail to keep CH from her. Helton
denies this accusation and gave examples of his efforts to increase CH’s interaction with his
mother. That Helton is not at fault is supported by Pauly’s own testimony that CH pulled away
from her immediately after her breakup with Helton, even while the family was still residing
together.

        Despite our belief that the circuit court erred in weighing factor (g) (and likely
mischaracterized its conclusion in relation to factor [d]), we discern no ground to upset its overall
custody decision. The erroneous weighing of one and even two best-interest factors can be
deemed harmless. See Fletcher, 447 Mich at 882, 885; Maier v Maier, 311 Mich App 218, 227;
874 NW2d 725 (2015). In actuality, the only change that would be occasioned by a remand in
this case would be to award the parties joint physical custody of CH. Even with correction to the
weighing of the best-interest factors, Pauly is still only favored under three factors in relation to
CH (c, g, and k), while Helton is favored under four (a, b, d, and h). The parties are still equal in
relation to factors (e), (f), and (j). Presumptively CH still prefers to reside with Helton, weighing
in Helton’s favor under factor (i). And “ ‘an expression of preference by an intelligent, unbiased
child might be the determining factor in deciding what the “best interests” of the child are.’ ”
Maier, 311 Mich App 225 (citations omitted). Under these circumstances, we find no error
demanding relief.

       We affirm.



                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ David H. Sawyer
                                                              /s/ Michael J. Kelly




                                                -9-
