                          STATE OF MICHIGAN

                           COURT OF APPEALS



DAVID DARIUS BAUGHMAN,                                             UNPUBLISHED
                                                                   August 4, 2015
              Plaintiff/Counter-Defendant-
              Appellant,

v                                                                  No. 323348
                                                                   Kalamazoo Circuit Court
                                                                   Family Division
LYDIA A. HARTMAN,                                                  LC No. 2009-007796-DM

              Defendant/Counter-Plaintiff-
              Appellee.


Before: MARKEY, P.J., and MURPHY and STEPHENS, JJ.

PER CURIAM.

        Plaintiff father David Baughman appeals as of right the August 5, 2014 order that granted
defendant mother Lydia Hartman’s motion for a modification of parenting time regarding each
of their minor children. We affirm.

                                      I. BACKGROUND

       On January 3, 2011, the trial court entered a judgment of divorce ending Baughman and
Hartman’s marriage. Baughman and Hartman were granted joint legal and physical custody of
the minor children. The judgment of divorce ordered the parties to continue to follow the
parenting schedule issued at an earlier September 10, 2010 referee hearing. According to that
schedule, the children stayed overnight with Baughman every Thursday and alternated weekends
with each parent. In a two-week period, Hartman received nine days of parenting time and
Baughman received five. The judgment of divorce provided that beginning on March 11, 2011,
Baughman and Hartman were to receive parenting time in alternating 7-day periods. If the
parents could not agree on visitation at that time, the order provided that the parenting time
schedule would revert to the parties’ original schedule.

       Approximately two years later, on May 10, 2013, Hartman moved the trial court for a
modification of parenting time regarding each of the minor children. The motion alleged that
the March 11, 2011 parenting time change did not occur and that there were other issues
regarding the care and custody of the children. Hartman requested that overnight parenting time
with Baughman during the school year be discontinued because it was not in the children’s best



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interests. Hartman’s motion was heard by a referee who issued a recommended order for
parenting time on November 26, 2013. Baughman filed objections to the recommended order.
An evidentiary hearing was held May 1 and May 9, 2014. The trial court issued its order on
August 5, 2014. The trial court ordered that, during the school year, Baughman would have
alternating weekends with the minor children and parenting time on Wednesday nights and that
Hartman would generally have the remainder of the time with the children. The trial court also
ordered that, during the summers, Baughman and Hartman would each receive an uninterrupted
two-week block of time with the minor children and that the parents would otherwise receive
alternating weeks of parenting time with the children. Baughman appeals that order.

                                  II. STANDARD OF REVIEW

        In regard to child custody and parenting time, all orders and judgments of the circuit
court are to be affirmed unless the trial court made findings of fact against the great weight of the
evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.
MCL 722.28; Pickering v Pickering, 268 Mich App 1, 5; 706 NW2d 835 (2005). Questions of
law are reviewed for clear legal error. LaFleche v Ybarra, 242 Mich App 692, 695; 619 NW2d
738 (2000). “A trial court commits clear legal error when it incorrectly chooses, interprets, or
applies the law.” Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). “The trial
court’s discretionary rulings, such as to whom to award custody, are reviewed for an abuse of
discretion. 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) (citation omitted). Findings regarding the existence of a change of circumstances or
proper cause and a child’s best interests are reviewed under the great weight of the evidence
standard. Dailey v Kloenhamer, 291 Mich App 660, 664; 811 NW2d 501 (2011); Corporan v
Henton, 282 Mich App 599, 605-609; 766 NW2d 903 (2009). “Under this standard, a reviewing
court should not substitute its judgment on questions of fact unless the factual determination
‘clearly preponderate[s] in the opposite direction.’ ” Pierron v Pierron, 486 Mich 81, 85; 782
NW2d 480 (2010), quoting Fletcher v Fletcher, 447 Mich 871, 878; 526 NW2d 889 (1994).
When reviewing a trial court’s findings of fact in a custody case, “this Court defers to the trial
court on issues of credibility.” Mogle v Scriver, 241 Mich App 192, 201; 614 NW2d 696
(2000).1

                             III. THE PARENTING TIME ORDER

        A parenting time order – like a custody award – may only be modified after there has
been proper cause shown or because of change of circumstances. Shade v Wright, 291 Mich App
17, 22-23; 805 NW2d 1 (2010). If a change in parenting time would result in a change in the
established custodial environment, the definitions of “proper cause” and “change of
circumstances” found in Vodvarka v Grasmeyer, 259 Mich App 499; 675 NW2d 847 (2003),

1
  Baughman challenges Hartman’s credibility on a variety of grounds, but to the extent the trial
court relied on her testimony, we defer to that credibility determination. Mogle, 241 Mich App
at 201.



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also apply to the proposed change in parenting time. Shade, 291 Mich App at 27. Here, the trial
court applied the more restrictive Vodvarka definitions of “proper cause” and “change of
circumstances” based on its finding that granting Hartman’s motion for a modification of
parenting time would change the custodial environment.

        To establish a change of circumstances meriting consideration of a custody change, “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.” Vodvarka, 259 Mich App at 513. “[T]he 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. The relevance of the facts showing
changes of circumstance is “gauged by the statutory best interest factors.” Id. at 514.

        Here, the trial court found a change of circumstances based upon the poor communication
and lack of cooperation between Hartman and Baughman. This finding is supported by the
record. Hartman and Baughman failed to communicate and cooperate regarding summer
parenting time and sleepovers for the minor children. Hartman and Baughman also disagreed
about and did not communicate regarding medical treatment for the minor children. This poor
communication and lack of cooperation was relevant to the minor children’s best interests under
MCL 722.23(j), diminishing each parent’s ability to encourage a close and continuing parent-
child relationship between the other parent and the minor children. Additionally, their lack of
cooperation affected the children's medical care under MCL 722.23(c). Vodvarka, 259 Mich
App at 513-514.2

        If proper cause or a change of circumstances is shown by a preponderance of the
evidence, the trial court may continue its analysis of whether a preexisting order or judgment
should be modified or amended pursuant to MCL 722.27(1)(c) by addressing the “threshold
determination” of “whether an established custodial environment exists.” Pierron v Pierron, 282
Mich App 222, 244; 765 NW2d 345 (2009), aff’d 486 Mich 81 (2010), quoting LaFleche, 242
Mich App at 695-696. If the trial court “finds that an established custodial environment exists,
then the circuit court ‘shall 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.’ ” Pierron, 282 Mich
App at 244-245, quoting MCL 722.27(1)(c).

        In this case, the trial court never explicitly made a finding as to what the minor children’s
established custodial environment was before the entry of its order. However, the trial court
stated that it was changing the environment to Hartman, indicating that it found that the minor
children’s established custodial environment before the entry of its order was not solely with
Hartman. Additionally, the trial court applied the clear and convincing evidence standard to its
finding that it was consistent with the best interests of the minor children to change their
2
  The trial court also found two other changes of circumstances. Baughman challenges those
findings, but any error in those alternate grounds is harmless. Kessler v Kessler, 295 Mich App
54, 62; 811 NW2d 39 (2011) (no reversal is required if an error is harmless).



                                                -3-
custodial environment to Hartman, and the application of the clear and convincing evidence
standard was only appropriate if the trial court found that an established custodial environment
existed and that it was changing that environment. Id. We conclude from this record that the
court found a joint custodial environment. See Charles A Murray Trust v Futrell, 303 Mich App
28, 44; 840 NW2d 775 (2013) (a trial court is presumed to know the law). Regardless,
Baughman does not raise an issue on appeal regarding the existence of an established custodial
environment. And, because the trial court applied the clear and convincing evidence standard,
the highest standard of proof applicable to child custody proceedings, any error in the trial
court’s failure to fully specify the minor children’s established custodial environment was
harmless error. See Kubicki v Sharpe, 306 Mich App 525, 540-541; 858 NW2d 57 (2014).

        The court was precluded from modifying a prior judgment or order unless it found by
clear and convincing evidence that the modification would be in the best interest of the children.
Pierron, 282 Mich App at 244-245; MCL 722.27(1)(c). “[A] trial court determines the best
interests of the child by weighing the twelve statutory factors outlined in [MCL 722.23].”
Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).

       MCL 722.23 provides:

              As used in this act, “best interests of the child” means the sum total of the
       following factors to be considered, evaluated, and determined by the court:

               (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.


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               (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.

               (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.

        Here, the trial court found that factors (a), (b), (d), (e), (f), and (g) were equal between the
parties and that factor (k) was not an issue. Regarding factor (i), the trial court indicated that it
met with each of the children and did consider their preferences, but did not disclose them on the
record. The trial court found that factor (l) favored neither party. Baughman does not challenge
the trial court’s findings regarding the above factors, but rather takes issue with those factors
found in Hartman’s favor.

        The trial court found that factor (c) favored Hartman, because she had taken more actions
after the divorce to provide for the minor children financially. Baughman argues that it was
inappropriate for the trial court to consider the parties’ finances based on our holding in Dempsey
v Dempsey, 96 Mich App 276; 292 NW2d 549 (1980), mod 409 Mich 495 (1980). However, this
case is distinguishable from Dempsey because the trial court did not merely rely on Hartman’s
superior economic position based on the parties’ employment history. Id. at 286-288. Instead,
the trial court’s findings concerned Hartman’s “substantial movement” to improve her career
path and Baughman’s comparative failure to stabilize his financial position.

        The trial court’s finding was supported by the record. Baughman’s tax form indicated
that he received income during the 2012 tax year of alimony in the amount of $7,614 and
unemployment compensation in the amount of $2,024. From September 2012 through
December 2012, Baughman pursued a degree as a pharmacist, but he stopped pursuing the
degree in July 2013. In contrast, Hartman pursued a nurse midwife certification after the
divorce, had a master’s degree from the University of Michigan in nursing, and earned a salary
of $86,000 per year. Hartman obtained her nurse midwife position after the parties’ divorce.
She worked 40 hours per week. Baughman testified that he was trying to start a construction
handyman business and was still taking classes. The trial court based its finding not on the
earnings of the parties but on the fact that Hartman exerted significant effort to be able to provide
for the children's material needs while Baughman's efforts were substantially less. The trial
court’s finding that best-interest factor (c) favored Hartman was not against the great weight of
the evidence. MCL 722.28.

        Regarding best-interest factor (h), the trial court found that the factor favored Hartman
primarily because she showed that she was more responsible than Baughman concerning the
minor children’s school attendance. On appeal, Baughman challenges a statement that the trial
court made in reaching that finding: that there had been “high conflict” between Baughman and
the children’s school system. The record does not support the trial court’s statement concerning
the existence of “high conflict,” and it does not appear that there was conflict between
Baughman and the children’s school at the time of the trial court’s findings.


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        The trial court’s findings, as they related to factor (h), were that Hartman was the more
responsible parent when it came to getting the children to school. There was significant evidence
in the record supporting that finding. Therefore, we do not conclude that the trial court’s finding
that factor (h) favored Hartman was against the great weight of the evidence. MCL 722.28.

        Finally, in regards to best-interest factor (j), the trial court found that the factor favored
Hartman based primarily on a finding that Baughman was undermining Hartman’s relationships
with the minor children. Hartman testified that Baughman undermined her with the minor
children by trying to control what she did with the children during her parenting times. Hartman
indicated that Baughman made derogatory remarks about her to the minor children. Also,
Hartman testified that when she met her oldest child and Baughman for coffee in March 2013,
the oldest child angrily and disrespectfully told her that he did not like living with her.
According to Hartman, Baughman was present for the child’s anger and disrespect, and he did
not correct the child. Therefore, there was evidence in the record supporting the trial court’s
finding that Baughman undermined Hartman’s relationships with the minor children. While
Baughman is correct that there was evidence that tended to show that Hartman made negative
comments about him and that she did not have respect for his parenting times, the evidence
before the trial court did not clearly preponderate in the opposite direction of the trial court’s
finding that factor (j) favored Hartman as necessary for us to conclude that the trial court’s
finding was against the great weight of the evidence. Pierron, 486 Mich at 85.

       The trial court found that three factors favored Hartman and that six factors were equal.
Again, factor (k) was not an issue, and the court did not indicate whether factors (i) and (l)
favored either party. Based on its best interest analysis, the trial court found by clear and
convincing evidence that it was in the minor children’s best interests to change their custodial
environment. That finding was not “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” as
required for us to conclude that the trial court’s decision was an abuse of discretion. Berger, 277
Mich App at 705.

        In reaching our conclusion, we recognize that the trial court ruled that it would not
“consider matters that were issues prior to the entry of the divorce” and limited its consideration
even further to the –“date of the last effective order.” It is unclear from the record what the trial
court meant by its reference to the “last effective order.” The trial court’s September 10, 2012
order denying Baughman’s prior motion for a modification of physical custody did not alter child
custody or parenting times regarding any of the minor children. Thus, the last custody order for
all three of the minor children was the January 3, 2011 judgment of divorce. Regardless,
whether the trial court refused to consider evidence of circumstances that existed before the entry
of the September 10, 2012 order or evidence of circumstances that existed before the judgment
of divorce, the trial court erred.

        In Vodvarka, 259 Mich App at 514-515, we discussed what evidence could be considered
by a trial court in determining the existence of proper cause or a change of circumstances. We
held that facts that existed before the entry of the last custody order could not be relied on to
establish a change of circumstances. Id. at 514. However, “[b]ecause a ‘change of
circumstances’ requires a ‘change,’ the circumstances must be compared to some other set of
circumstances” and “evidence of the circumstances existing at the time of and before entry of the


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prior custody order will be relevant for comparison purposes.” Id. Further, we held that facts
that existed before the entry of the last custody order could be used, in some cases, to establish
proper cause. Id. at 515. Additionally, the limitation in Vodvarka regarding a trial court’s
consideration of evidence concerning a change of circumstances does not apply to a trial court’s
subsequent consideration of a child’s best interests. Id. at 514.

        Here, the trial court’s ruling that it would not consider evidence before the “last effective
order” appears to have been based on the principle in Vodvarka that facts that existed before the
entry of the last custody order may not be relied on to establish a change of circumstances. Id.
However, the trial court’s ruling that it would not consider evidence before the “last effective
order” is inconsistent with Vodvarka’s holding that facts that existed before the entry of the last
custody order may be relevant for other matters. Id. at 514-515. Accordingly, the trial court’s
ruling that it would not consider matters at issue before the date of the “last effective order” was
clear legal error. Id.

        However, apart from the exclusion of evidence regarding the number of absences the
minor children had before the entry of the judgment of divorce, there is no indication in the
record that the trial court prevented Baughman or Hartman from presenting any other evidence
based on its decision that it would not consider matters at issue before the date of the “last
effective order.” Baughman does not argue on appeal that any other evidence that would have
affected the trial court’s findings was excluded. Further, there is no indication in the record that
the trial court’s decision, that it would not consider matters at issue before the date of the “last
effective order”, affected the findings we reviewed supra. Therefore, the trial court’s error was
harmless. Kessler v Kessler, 295 Mich App 54, 62; 811 NW2d 39 (2011).

       Baughman also argues that the trial court was biased against him. However, the only
remedy sought by Baughman based on his bias claim is that, if this case is remanded, we should
remand the case to a different judge. Because we conclude that remand is unnecessary, this issue
is moot. B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117 (1998).
Baughman’s remaining argument that the trial court stopped him from providing clarifying
testimony is abandoned, and we decline to address it. Houghton v Keller, 256 Mich App 336,
339-340; 662 NW2d 854 (2003).

       Affirmed.

                                                              /s/ Jane E. Markey
                                                              /s/ William B. Murphy
                                                              /s/ Cynthia Diane Stephens




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