                          STATE OF MICHIGAN

                           COURT OF APPEALS



RANE R. WALKER II,                                                  UNPUBLISHED
                                                                    April 13, 2017
               Plaintiff-Appellant,

v                                                                   No. 334752
                                                                    Oakland Circuit Court
                                                                    Family Division
SARAH JEAN WALKER,                                                  LC No. 2009-765043-DM

               Defendant-Appellee.


Before: MARKEY, P.J., and WILDER and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff appeals by right the trial court’s order denying his motion to change custody and
parenting time. We affirm.

       The parties were divorced on March 22, 2010, and agreed to share joint legal and
physical custody of their two minor children, XW and LW, through a consent judgment of
divorce. Then, on May 4, 2010, plaintiff gave physical custody of the children to defendant
because he believed that he could not join the military and maintain joint physical custody.

        On December 28, 2010, plaintiff filed a motion to both set aside that consent order
because he had not actually joined the military and to request sole physical custody of the
children. Following mediation, the parties entered into a settlement agreement on October 18,
2011. The agreement provided that the parties would continue to share joint legal custody but
that defendant would retain physical custody. The agreement also awarded plaintiff parenting
time with the children every other weekend, from Friday to Monday, and every Wednesday.

        Plaintiff filed another motion for modification of custody and other relief on February 27,
2015, requesting primary physical custody and asserting that defendant failed to meet the
children’s medical or hygiene needs, refused to allow him to have the children vaccinated, left
the children unattended, refused to allow the children to see a psychologist outside of her
Christian counselor, attempted to dissuade the children from discussing their feelings, and failed
to ensure completion of the children’s homework. The trial court held a hearing on March 11,
2015, and entered an order requiring the parties to follow a pediatrician’s recommendations
regarding vaccinations and that the children begin to see a counselor. The order also stated that
plaintiff could allege a continuing pattern of behavior with regard to defendant in any future
custody motions.
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        Finally, on April 15, 2016, plaintiff filed the motion at issue to change custody and
parenting time, requesting that the court award joint physical custody with 50-50 parenting time.
In support of his motion, plaintiff pointed to a letter sent to the trial court by the children’s
counselor, Dr. Priya K. Rao, in which the counselor alleged that defendant was resistant to
coparenting, discouraged the children from discussing their feelings, left the children unattended,
failed to ensure that the children maintained good hygiene, failed to require that the children
complete their homework, and lacked time and attentiveness for the children. Following
hearings on April 27, 2016, and May 18, 2016, the trial court entered an order determining that
plaintiff had failed to meet the threshold necessary for entitlement to a hearing regarding
modification of custody or parenting time.

       Plaintiff first argues on appeal that he demonstrated a sufficient change of circumstances
to warrant a hearing regarding change of custody. We disagree.

        “This Court must affirm all custody orders unless the trial court’s findings of fact 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.” Berger v Berger, 277 Mich App 700, 705;
747 NW2d 336 (2008), citing MCL 722.28. A trial court’s findings of fact are against the great
weight of the evidence if “the evidence clearly preponderates in the opposite direction.”
McIntosh v McIntosh, 282 Mich App 471, 474; 768 NW2d 325 (2009). This Court must defer to
the credibility determinations made by the trial court. Id. at 474-475. “An abuse of discretion
with regard to a custody issue occurs ‘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.’ ” Mitchell v Mitchell, 296 Mich App 513, 522; 823 NW2d 153
(2012), quoting Berger, 277 Mich App at 705. Finally, “[t]he clear legal error standard applies
when the trial court errs in its choice, interpretation, or application of the existing law.” Shulick
v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006). “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), citing Vodvarka v Grasmeyer, 259 Mich App 499, 507-
508; 675 NW2d 847 (2003).

         “MCL 722.27(1)(c) provides that if a child custody dispute has arisen from another action
in the circuit court, the court may ‘[m]odify or amend its previous judgments or orders for proper
cause shown or because of change of circumstances . . . .’ ” Vodvarka, 259 Mich App at 508
(alteration in original). The moving party must prove, by a preponderance of the evidence, the
existence of proper cause or a change of circumstances before the trial court may conduct a
hearing to review the custodial best-interest factors. Corporan, 282 Mich App at 603-604.
“Although the threshold consideration of whether there was proper cause or a change of
circumstances might be fact-intensive, the court need not necessarily conduct an evidentiary
hearing on the topic.” Id. at 605, citing Vodvarka, 259 Mich App at 512.

        To demonstrate a change of circumstances, “a movant must prove that, since the entry of
the last custody order, the conditions surrounding custody of the child[ren], which have or could
have a significant effect on the child[ren]’s well-being, have materially changed.” Vodvarka,
259 Mich App at 513. Further, “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

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some evidence that the material changes have had or will almost certainly have an effect on the
child.” Id. at 513-514. The escalation of disagreements between parties regarding matters that
have a significant effect on the children’s welfare may constitute proper cause or change of
circumstances. See Dailey v Kloenhamer, 291 Mich App 660, 666; 811 NW2d 501 (2011).

       On appeal, plaintiff argues only that he sufficiently demonstrated a change of
circumstances to warrant a custody hearing. He does not assert that he established proper cause.

       In support of his motion for a change of custody, plaintiff introduced a letter written by
the children’s counselor, which suggested that defendant discouraged the children from
discussing their challenges, left the children to fend for themselves while in her care, failed to
meet the children’s hygiene needs, and failed to ensure that the children completed homework
assignments. At the hearing on May 18, 2016, he also asserted that defendant’s involvement in a
domestic violence incident in 2013 and the CPS investigations against defendant warranted a
change in custody.

        In response, defendant, both directly and through counsel, contended that the children
showered at her house, that she was encouraging XW to wear deodorant, and that the children
were doing fine in school. Defendant’s counsel also stated that it was plaintiff who had actually
called CPS against defendant and that his claim was unsubstantiated. Further, when questioned
by the trial court, plaintiff admitted that the children were doing well in school, that the children
had not been involved in the 2013 domestic violence incident, and that he knew about the CPS
involvement before the last motion hearing.

        From this record, we conclude that the trial court did not err when it determined that
plaintiff failed to demonstrate by a preponderance of the evidence a material change of
circumstances which could have a significant effect on the children’s well-being. As discussed
above, most of plaintiff’s allegations were disputed by defendant, and plaintiff presented limited
substantive evidence. Many of the allegations amounted to normal life changes insufficient to
warrant a change in custody. Hygiene issues and homework struggles are common for many
children the same ages as XW and LW. Further, plaintiff admitted that the children had not been
involved in defendant’s 2013 domestic violence incident and that he knew of defendant’s CPS
contact before the last motion hearing. Thus, the trial court’s determination that plaintiff failed
to meet the threshold requisite to revisit custody was not against the great weight of the evidence;
consequently, the trial court did not abuse its discretion by denying plaintiff’s request for a
custody hearing.

       Second, plaintiff argues that he demonstrated a sufficient change of circumstances to
warrant a hearing regarding modification of parenting time. We disagree.

        “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) (citation omitted). The great weight of the evidence
standard applies to this Court review of a trial court’s determination regarding whether a party
has demonstrated proper cause or a change of circumstances. Corporan, 282 Mich App at 605.


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        To make its determination regarding proper cause or change of circumstances in the
context of a request to modify parenting time, a trial court should first look to the children’s
established custodial environment. “If a change in parenting time results in a change in the
established custodial environment, then the Vodvarka framework is appropriate.” Shade, 291
Mich App at 27. In contrast, “a more expansive definition of ‘proper cause’ or ‘change of
circumstances’ is appropriate for determinations regarding parenting time when a modification in
parenting time does not alter the established custodial environment.” Id. at 27-28. Under this
more expansive definition, “the very normal life change factors that Vodvarka finds insufficient
to justify a change in custodial environment are precisely the types of considerations that trial
courts should take into account in making determinations regarding modification of parenting
time.” Id. at 30.

       An established custodial environment “is the environment in which ‘over an appreciable
time the child naturally looks to the custodian in that environment for guidance, discipline, the
necessities of life, and parental comfort.’ ” Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d
480 (2010), quoting MCL 722.27(1)(c). Established custodial environments may exist with both
parents at the same time. Berger, 277 Mich App at 707.

        Although plaintiff does not argue on appeal that the trial court erred by failing to make a
determination regarding the children’s established custodial environment and does not actually
assert that the Shade framework should apply to his request for modification of parenting time, it
is clear from the record that the trial court made no findings or determinations regarding the
children’s established custodial environment. Instead, the trial court simply concluded that
plaintiff had not met the threshold necessary to revisit parenting time.

        Generally, where a trial court must determine whether an established custodial
environment exists and fails to do so, “ ‘this Court will remand for a finding unless there is
sufficient information in the record for this Court to make its own determination of this issue by
de novo review.’ ” Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000), quoting
Thames v Thames, 191 Mich App 299, 304; 477 NW2d 496 (1991). There is insufficient
evidence in the record for this Court to make a de novo determination regarding the children’s
established custodial environment. No real testimony was taken at the motion hearings, and this
Court has not been provided with an FOC recommendation made near the time of the hearings.
Thus, the trial court erred when it failed to make a determination regarding the children’s
established custodial environment.

        We conclude, however, that the trial court’s error was harmless. Even under the Shade
framework expanding the definition of a change of circumstances, plaintiff failed to demonstrate
a change of circumstances sufficient to warrant a parenting-time modification. As discussed
above, in support of his request to change parenting time, plaintiff relied upon the counselor’s
letter to the trial court and the allegations made within, defendant’s past domestic violence
incident, and defendant’s contact with CPS. Even assuming that if true, plaintiff’s allegations
amounted to the types of life changes sufficient to support a modification of parenting time, the
trial court could have reasonably determined that they had not been proven by a preponderance
of the evidence. The children’s counselor did not testify at the hearings, and defendant disputed
many of the claims. Further, plaintiff admitted that the children were doing well in school, that


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the children had not been involved in defendant’s 2013 domestic violence incident, and that he
knew about defendant’s contact with CPS before the last motion hearing.

       We affirm.



                                                         /s/ Jane E. Markey
                                                         /s/ Kurtis T. Wilder
                                                         /s/ Brock A. Swartzle




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