                         STATE OF MICHIGAN

                          COURT OF APPEALS



ROBERTA SKIVER PEARCE, f/k/a ROBERTA                              UNPUBLISHED
SKIVER VALENTE,                                                   March 24, 2015

              Plaintiff-Appellee,

v                                                                 No. 318819
                                                                  Genesee Circuit Court
JAMES JOSEPH VALENTE,                                             LC No. 05-258969-DM

              Defendant-Appellant.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

BECKERING, P.J. (concurring).

      I concur in the result of the majority opinion. However, I write separately to briefly
expand the analysis on some of the issues raised.

                                I. STANDARD OF REVIEW

        “Orders concerning parenting time must be affirmed 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.” Shade v Wright, 291 Mich
App 17, 20-21; 805 NW2d 1 (2010). Under the great weight of the evidence standard, this Court
will not disturb the finding of the trial court unless the evidence clearly preponderates in the
opposite direction. Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009).

                            II. CHANGE IN PARENTING TIME

       Defendant contends that the trial court erred in finding proper cause or a change of
circumstances to warrant revisiting the previous parenting time order between the parties.1 He




1
  This was the October 3, 2012 order restoring the parenting time schedule originally entered in
the judgment of divorce. Despite defendant’s contention that this Court should look to other
orders, the October 3, 2012 order regarding parenting time was the order that was altered by the
trial court’s ruling in the instant matter.


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also contends that the trial court erred in finding that the change did not upset the child’s
established custodial environment.

        A party seeking to modify or amend a previous judgment or order affecting child custody
must demonstrate that “proper cause” or a “change of circumstances” exists to justify the
proposed change. MCL 722.27(1)(c). “A modification of such a judgment or order is only
permissible when it is in the minor child’s best interests.” Shade, 291 Mich App at 23. The
terms “proper cause” or “change of circumstances” have been construed to mean different things,
depending on whether the proposed modification changes the child’s established custodial
environment or amounts to a mere adjustment in parenting time. Id. at 28-29. See also Rains v
Rains, 301 Mich App 313, 340; 836 NW2d 709 (2013). When the proposed modification in
parenting time also modifies custody, the more demanding definitions of “proper cause”2 or
“change of circumstances”3 set forth in Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d
847 (2003), apply. Shade, 291 Mich App at 26-27. However, “[w]hen a parenting-time
modification does not change the established custodial environment, ‘a more expansive
definition of ‘proper cause’ or ‘change in circumstances’ is appropriate . . . .’ ” Rains, 301 Mich
App at 340, quoting Shade, 291 Mich App at 28. Under this more expansive definition, normal
life changes that would not otherwise amount to a change of circumstances under Vodvarka may
be sufficient to establish a change of circumstances to warrant modifying an existing parenting-
time order. Shade, 291 Mich App at 30-31.




2
  In Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847 (2003), this Court
explained that in order to establish the requisite “proper cause” for revisiting 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.
3
    A “change of circumstances” under Vodvarka, 259 Mich App at 531-514:
         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.


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        The trial court found that KV’s diagnosis with ADHD amounted to a change of
circumstances sufficient to warrant modifying the existing parenting-time order. It also found
that there was no established custodial environment with either parent.4 The trial court’s finding
was based on what it found to be a lack of stability and consistency. That finding stemmed from
the parties’ voluntary decision to change the custody schedule, then revert back to the schedule
set forth in the judgment of divorce, as well as defendant’s living in rental homes and rebuilding
a new home, and plaintiff’s re-marriage. The trial court also noted that KV expressed anxiety
about parenting time changes to Dr. Elizabeth Rose, and that she was unsure about what home
she was going to be in and that she was upset by plaintiff and defendant’s frequent arguments.

                     A. ESTABLISHED CUSTODIAL ENVIRONMENT

        “An established custodial environment exists ‘if over an appreciable time the child
naturally looks to the custodian in that environment for guidance, discipline, the necessities of
life, and parental comfort.’ ” Bowers v Bowers, 198 Mich App 320, 325; 497 NW2d 602 (1993),
quoting MCL 722.27(1)(c). A child can have an established custodial environment with one
parent, both parents, or neither parent. See Foskett v Foskett, 247 Mich App 1, 6-7; 634 NW2d
363 (2001). Instability, uncertainty, and repeated changes can lead to a finding of no established
custodial environment with either parent. Rains, 301 Mich App at 333. See also Hayes v Hayes,
209 Mich App 385, 388; 532 NW2d 190 (1995); Bowers, 198 Mich App at 327. A custody order
in and of itself is not sufficient to create an established custodial environment. Baker v Baker,
411 Mich 567, 579; 309 NW2d 532 (1981). The trial court’s finding that there was no
established custodial environment with either party was not against the great weight of the
evidence. As noted by the trial court, there was uncertainty with regard to the child’s living
situation. The parties adhered to one custody schedule in the judgment of divorce, voluntarily
adopted another schedule, and then, after instituting legal proceedings, went back to the schedule
set in the judgment of divorce. According to Dr. Rose, this triggered anxiety and confusion in
KV. KV requested that the parties tell her about the schedule ahead of time and asked them to
put the schedule on a calendar so that she could know when she was to switch houses.
Furthermore, the record reveals that plaintiff and defendant had a contentious relationship,
marked by numerous legal proceedings involving the child’s custody and parenting time.
According to Dr. Rose, this caused more anxiety in KV. This Court has recognized that
uncertainty caused by an impending decision regarding custody or parenting time can destroy a
previously-established custodial environment. See Hayes, 209 Mich App at 388. Given the
uncertainty and changing parenting time schedules, the trial court’s finding was not against the
great weight of the evidence. See Rains, 301 Mich App at 333; Bowers, 198 Mich App at 327.




4
  The court noted, however, that it “could justly conclude that mother has the established
custodial environment because the child looks to her for all essential care and emotional
support.” Yet, the trial court declined to find an established custodial environment.


                                               -3-
                  B. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

        Because the proposed modification in parenting time would not amount to a change in the
established custodial environment, the more expansive definition of “proper cause” or “change
of circumstances” set forth in Shade, 291 Mich App at 28, applied. “In order to modify a
parenting-time schedule, if the modification would not constitute a change in an established
custodial environment, the party proposing the change must show by a preponderance of the
evidence that the change is in the child’s best interests.” Rains, 301 Mich App at 340.

        The trial court stated that KV’s diagnosis of ADHD was sufficient to establish proper
cause or a change of circumstances such that modification of the existing parenting-time
scheduled was warranted. Although the child’s diagnosis with ADHD is a medical issue, which
is ordinarily a concern addressed by the child’s legal custody and not parenting time, the record
nevertheless revealed that KV’s ADHD, as well as her anxiety about parenting time, was causing
the child difficulty. In addition, it was readily apparent from the trial court’s written opinion and
order that KV’s best interests were of paramount importance to its decision to modify parenting
time, and that the trial court’s decision was driven by the instability in KV’s life and the need for
a more stable, predictable arrangement. This Court has found that, even when a trial court fails
to explicitly identify proper cause or a change of circumstances before modifying a custody
order, it will nevertheless affirm the order of the trial court where it was apparent that the trial
court’s decision was in the best interests of the child and that proper cause or a change of
circumstances existed. See Rains, 301 Mich App at 341-342. Here, given the instability noted
above, I decline to find that the trial court erred in its decision. See id. at 342.

                               III. JOINT PHYSICAL CUSTODY

        I also find no merit to defendant’s contention that the trial court’s change in parenting
time was so drastic that it contravened the parties’ agreement that they would continue to share
joint physical custody of KV.5

        Contrary to defendant’s contentions, “[j]oint custody does not necessitate a 50/50 split of
the children’s time between each parent.” Diez v Davey, __ Mich App __; __ NW2d __ (Docket
No. 318910, issued October 23, 2014), slip op at 12. As a panel of this Court recently explained
in Diez:

       To the extent [the father] challenges the trial court’s award of parenting time as a
       deviation of what it means to have “joint custody,” he is mistaken in his
       understanding of “joint custody.” Joint custody does not necessitate a 50/50 split
       of the children’s time between each parent. Rather, pursuant to MCL
       722.26a(7)(a), “joint custody,” in terms of physical custody, is defined as an order


5
  On September 9, 2013, before the trial court entered its custody decision, the parties stipulated
to continuing to share joint physical custody of the child.


                                                -4-
       of the court in which it is specified that “the child shall reside alternately for
       specific periods with each of the parents.” No specific schedule is required;
       instead, the focus is on the best interest of the children, and parenting time must
       be granted “in a frequency, duration, and type reasonably calculated to promote a
       strong relationship between the child and the parent granted parenting time.”
       MCL 722.27a. The Michigan Parenting Time Guideline recognizes that there are
       myriad parenting time arrangements available depending on what will serve the
       bests interests of the children. [Id.]

In Diez, a parenting time schedule that afforded the plaintiff with 122 days of parenting time—or
roughly one third of each year—provided him with ample time to promote a strong relationship
with his children, and was sufficient to constitute joint physical custody. Id.

       Here, the trial court’s parenting time order was, consistent with MCL 722.26a(7)(a), a
schedule pursuant to which the child resided alternatively for specific periods of time with each
parent. The trial court’s determination was specifically geared toward reducing KV’s anxiety
and achieving stability for her during the school year, and although defendant’s parenting time
was reduced under the trial court’s new parenting-time order, he nevertheless has parenting time
spanning approximately 28% of the calendar year. While it may not be as much parenting time
as defendant would prefer, it provides him time to “promote a strong relationship” with his child,
and can be considered joint physical custody. See MCL 722.27a; Diez, slip op at 12.

                   IV. BEST INTEREST FACTORS UNDER MCL 722.23

       Lastly, while I agree with the majority’s conclusion on the best-interest factors, I write
separately to address one factor in particular, MCL 722.23(i).

        “The child’s best interests govern a court’s decision regarding parenting time.” Shade,
291 Mich App at 31. See also MCL 722.27a(1). In making its best-interests determination, the
trial court relied on the factors set forth in MCL 722.23, which provides factors that are to be
considered in a custody determination. Among other factors with which defendant takes issue,
he argues that the trial court erred by failing to consider, under MCL 722.23(i), the reasonable
preference of the child. In regard to this factor, the trial court explained that “[n]either party
requested a child interview. This factor will not be considered.”

       In Shade, 291 Mich App at 31-32, this Court explained that, in the context of a parenting-
time decision, the best interest factors set forth in MCL 722.23 are relevant, but the trial court
need not explicitly address the factors because they are factors to be considered in custody
determinations. Moreover, this Court explained that while “[c]ustody decisions require findings
under all of the best interest factors” “parenting time decisions may be made with findings on
only the contested issues.” Here, where neither party requested that the child be interviewed, it




                                               -5-
cannot be said that the child’s preference was a “contested issue” that required a finding by the
trial court. I decline to find error as asserted by defendant.6

                                                              /s/ Jane M. Beckering




6
  I note this Court’s holding in Kubicki v Sharpe, 306 Mich App 525, 544-545; 858 NW2d 57
(2014), in which the panel, in the context of a custody determination, found that the trial court
erred by failing to consider the child’s preference, in spite of the fact that the parties agreed that
the child need not be interviewed by the trial court. This Court reasoned that the trial court was
required to consider all of the best-interest factors, including the child’s preference, given that
the child was old enough to express a preference. Id. This Court found the trial court’s failure to
consider the child’s preference required remand. Here, however, given that this case only
involved parenting time, not a custody decision, I find Kubicki inapposite. See Shade, 291 Mich
App at 31-32 (explaining that a parenting-time decision only requires findings of fact on
contested issues, as opposed to a custody determination, which requires findings on all of the
best interest factors).


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