            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



MONICA ANNE MANSFIELD, also known as                               UNPUBLISHED
MONICA KAVANAGH,                                                   August 22, 2019

              Plaintiff-Appellant,

v                                                                  No. 347408
                                                                   Ionia Circuit Court
JASON DOUGLAS MANSFIELD,                                           LC No. 2012-029016-DM

              Defendant-Appellee,

and

MCM,
              Appellee.


Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Plaintiff, Monica Kavanagh, appeals the trial court’s order denying defendant’s, Jason
Douglas Mansfield, motion to change custody and modifying defendant’s parenting time with
the parties’ minor child, MCM. We affirm.

                                      I. BACKGROUND

       The parties had two children during their marriage: AAM1 and MCM. The judgment of
divorce was entered in 2012, which awarded joint legal custody of the children to both parties
and primary physical custody to plaintiff. Defendant served in the military, and, in 2013, he
accepted employment in Virginia. However, defendant returned to Michigan in 2016, at which
time he filed a motion for parenting time. The trial court provided defendant with parenting time


1
  AAM turned 18 during the lower court proceedings and is no longer within the jurisdiction of
the trial court.



                                               -1-
on alternating weekends from Saturday at 10:00 a.m. until Sunday at 6:00 p.m. during the school
year. In the summer time, defendant had parenting time on alternating weekends from Fridays at
6:00 p.m. until Sundays at 6:00 p.m. and every Tuesday at 6:00 p.m. until Wednesday at 6:00
p.m. Both parties had two uninterrupted full weeks of parenting time each summer. The parties
would have the children on alternating holidays. Subsequently, plaintiff moved closer to
defendant, and the parties agreed to extend defendant’s parenting time to Friday at 5:00 p.m.
until Sunday at 7:00 p.m. during school, and Thursday at 6:00 p.m. until Sunday at 6:00 p.m.
during the summer months.

        In February 2018, defendant filed the motion to change custody that is at issue in this
appeal. Defendant requested custody of the children, arguing that the children were not happy in
plaintiff’s home and that plaintiff was under a CPS investigation for physical abuse based on a
CPS report that defendant filed against plaintiff. After holding a three-day custody hearing, the
referee concluded that defendant had shown a change of circumstances to warrant a custody
review. However, the referee determined that an established custodial environment existed with
plaintiff, and defendant failed to show that changing custody was in MCM’s best interest by
clear and convincing evidence. Defendant requested a de novo review of the referee’s findings,
essentially arguing that the referee erred in its conclusion that a change of custody would not be
in MCM’s best interests. The trial court held the requested de novo review in January 2019.

        The trial court agreed with the referee that a change of circumstances had occurred and
that the established custodial environment was with plaintiff. The trial court analyzed the
statutory “best interest” factors enumerated in MCL 722.23, finding that both parents were
seriously concerning, and some factors favored plaintiff while others favored defendant. It
concluded that its concerns with both parties precluded a finding that changing custody would be
in MCM’s best interests. The trial court then held an in camera interview with MCM before
issuing its order regarding defendant’s parenting time.

        The trial court ordered that the parties would continue to share joint legal custody, with
plaintiff retaining physical custody. During the school year, defendant would have parenting
time with MCM on two consecutive weekends from Friday at 6:00 p.m. (or after school) until
Sunday at 6:00 p.m. On the third weekend, defendant would have parenting time from Friday at
6:00 p.m. until Saturday at 4:00 p.m. MCM would spend the fourth weekend with plaintiff. In
the summer, defendant would have parenting time during the week, while plaintiff would have
alternating weekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. Plaintiff would also
have two weeks of uninterrupted parenting time. The parties would have MCM on alternating
holidays. Further, the trial court ordered the parties to engage in family therapy to improve their
ability to coparent. The trial court reserved its right to review the parties’ compliance with the
order. Finally, the trial court ordered that a second in camera interview would be held with
MCM in May 2019. In late January 2019, this appeal followed.




                                                -2-
        On July 23, 2019, while this appeal was pending,2 the trial court held a review hearing
following its second in camera interview with MCM. The trial court also received a report from
a professional counselor who had worked with the parties and children. The parties agreed to
admit the counselor’s report into evidence, although the trial court struck a confidential portion
of the report.3 The parties discussed MCM’s school performance since the trial court’s previous
order, but other than generally agreeing that MCM continued to struggle in school, no consensus
was reached whether her performance had improved or degraded. Her grades were apparently
not admitted into evidence. The parties and the guardian ad litem (GAL) presented arguments.
The trial court reiterated its previous findings that MCM had an established custodial
environment with plaintiff, and a change in circumstances had occurred. The trial court then
revisited its best interests findings, several of which it reaffirmed. However, it found several
factors that had previously been neutral or slightly in favor of plaintiff to now favor defendant. It
also found two factors that had each previously favored one of the parties to be closer to neutral.

        The trial court noted that in January, it had been unable to find “in good conscience” that
a change in custody was clearly and convincingly in MCM’s best interests. However, it
concluded that it now found that a change in custody was clearly and convincingly in MCM’s
best interests. The trial court praised both parties for engaging in good-faith efforts at
coparenting therapy, but concluded that the coparenting was clearly proving unhealthy for both
of them, so it should be discontinued.4 The trial court entered an order that, in relevant part,
maintained the parties’ joint legal custody and ordered that defendant would have physical
custody “effective immediately.” However, the trial court also ordered that the existing summer
parenting-time arrangement would first be finished as set forth in its January order. The trial
court further ordered that MCM’s participation in band camp for her new school would take
priority over other scheduling conflicts. Its revised parenting-time schedule would go into effect
August 19, 2019. Plaintiff promptly filed a motion to stay.




2
  This Court usually will not permit expansion of the record, and certainly parties have no right
to expand the record. MCR 7.210(A)(1). However, we have the discretionary power to “permit
amendments, corrections, or additions to the transcript or record” where justice so requires.
MCR 7.216(A)(4). Plaintiff provided us with a transcript of the hearing along with her second
motion to stay, and no party has disputed the accuracy or propriety of that transcript. Under the
exceptional circumstances presented, we choose to treat plaintiff’s motion to stay as implicitly
also moving to expand the record, and we hereby grant the motion to expand the record.
3
  At oral argument, we requested that the parties provide us with a copy of the report, which we
include in our expansion of the record.
4
  We therefore deem moot plaintiff’s challenge to the trial court’s order that the parties attend
family therapy. See B P 7 v Bureau of State Lottery, 231 Mich App 356, 359; 586 NW2d 117
(1998).


                                                -3-
                                    II. NATURE OF APPEAL

        At the outset, this Court ordered the parties to address whether plaintiff’s appeal is of
right or by leave.5 We conclude that plaintiff is an aggrieved party from the order of the trial
court denying defendant’s motion to change custody. See MCR 7.203(A)(1). Although the trial
court ostensibly denied defendant’s motion, the trial court significantly decreased plaintiff’s
parenting time, ordered plaintiff to participate in family therapy, scheduled a second in camera
interview with MCM, and reserved the right to review the parties’ compliance with the order.
Moreover, plaintiff argues that the trial court erred in even considering defendant’s motion. As a
result, we agree that plaintiff arguably “suffered a concrete and particularized injury” from the
trial court’s actions, so she was aggrieved by the trial court’s order. See Manuel v Gill, 481
Mich 637, 643-644; 753 NW2d 48 (2008). Consequently, this appeal is as of right.

                                 III. STANDARD OF REVIEW

         This Court applies “three standards of review in custody cases.” Phillips v Jordan, 241
Mich App 17, 20; 614 NW2d 183 (2000). “The great weight of the evidence standard applies to
all findings of fact. A trial court’s findings . . . should be affirmed unless the evidence clearly
preponderates in the opposite direction.” Id. Further, the “abuse of discretion standard applies to
the trial court’s discretionary rulings such as custody decisions.” Id. Finally, this Court reviews
questions of law for clear legal error. Id. “A trial court commits clear legal error when it
incorrectly chooses, interprets, or applies the law.” Id.

        Issues not presented to the trial court are unpreserved. See Fast Air, Inc v Knight, 235
Mich App 541, 549; 599 NW2d 489 (1999). This Court reviews unpreserved issues for plain
error. Demski v Petlick, 309 Mich App 404, 426-427; 873 NW2d 596 (2015). “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Id. at 427 (quotation marks and citation omitted).

                        IV. EVENTS WHILE APPEAL WAS PENDING

        We must initially address the propriety of the July hearing and other events in the trial
court during the pendency of this appeal. Trial courts have the inherent power to revisit and
reconsider their previous decisions at any time. See Hill v City of Warren, 276 Mich App 299,
306-307; 740 NW2d 706 (2007). The parties agreed to the admission of a redacted portion of the
counselor’s report, so plaintiff cannot now contend that it was error for the trial court to consider
that report. Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001). Although
the parties discussed MCM’s school performance, it appears that the trial court declined to
consider MCM’s grades beyond the parties’ general agreement that MCM continued to struggle
in school. We do not believe the trial court erred as a consequence.



5
  Mansfield v Mansfield, unpublished order of the Court of Appeals, entered April 17, 2019
(Docket No. 347408).


                                                -4-
         Plaintiff contends that the trial court abused its discretion by ordering the second in
camera interview with MCM. We disagree. The record supports the trial court’s concerns with
both parents and the effects upon MCM. It is clear from the transcript that the trial court wished
to ensure that MCM’s expressed preference at the first interview would remain consistent. In
other words, the trial court allowed for the possibility that MCM might change her mind about
wishing to reside with defendant, which could only work to the potential benefit of plaintiff. We
do not understand how the trial court’s decision harmed plaintiff, and in any event, the trial
court’s concern for MCM’s interests is precisely the purpose of the child custody act. See Frame
v Nehls, 452 Mich 171, 176; 550 NW2d 739 (1996). We find no error in the trial court’s
revisitation of its earlier factual findings. Hill, 276 Mich App at 306-307. We also find no error
in the trial court’s consideration of up-to-date evidence, including the redacted counselor’s report
and its second in camera interview with MCM. See Fletcher v Fletcher, 447 Mich 871, 889; 526
NW2d 889 (1994).

        The trial court also purported to change its order regarding MCM’s parenting time.
Notwithstanding the general principle that trial courts may not modify orders that are pending on
appeal, Hill, 276 Mich App at 307, several exceptions exist. The parties apparently agreed to the
trial court’s modification of its order regarding MCM’s band camp attendance. An agreement by
the parties is an exception to the general prohibition against altering an order pending on appeal.
MCR 7.208(A)(2). In custody matters where proper cause or a change of circumstances has
been shown, trial courts may be permitted to modify custody orders if doing so is in the child’s
best interests. Safdar v Aziz, 501 Mich 213, 217-219; 912 NW2d 511 (2018), citing MCR
7.208(A)(4). As we will discuss, the trial court had already properly found a change of
circumstances, and its purported change to its order was based on MCM’s best interests.
Nevertheless, any changes the trial court made have not yet gone into effect or had any practical
consequences. Therefore, even if the trial court erred by purporting to modify its order, any such
error was harmless and is not grounds for reversal or vacation. In re Portus, 325 Mich App 374,
396; 926 NW2d 33 (2018).

                  V. CHANGE OF CIRCUMSTANCES OR PROPER CAUSE

       On appeal, plaintiff first argues that the trial court erred in holding a full custody hearing
before determining whether defendant had established proper cause or a change of circumstances
warranting review of the 2016 custody and parenting-time order. We disagree.

        A trial court may modify a previous child custody judgment or order “for proper cause
shown or because of change of circumstances.” MCL 722.27(1)(c). Any such modification also
requires “clear and convincing evidence that it is in the best interest of the child.” Id. “[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). A
change of circumstances means “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-
514 (emphasis in original). Either proper cause or a change of circumstances must be both
significant and determined by reference to the statutory “best interest” factors enumerated in
MCL 722.23. Id. at 511, 514. After proper cause or a change of circumstances has been
demonstrated, “the trial court can then engage in a reevaluation of the statutory best interest

                                                 -5-
factors.” Id. at 511. We agree with plaintiff that defendant’s “Motion for Change in Custody”
sought to change the children’s established custodial environment to either exist with both
parties or with him exclusively. As a result, defendant was required to establish proper cause or
a change of circumstances pursuant to Vodvarka.

        Plaintiff next argues that the trial court erred by referring the custody evaluation to the
Friend of the Court for a hearing before a referee, rather than conducting the hearing itself. We
find nothing to suggest that plaintiff addressed this concern to the trial court, so this issue is
unpreserved. In any event, plaintiff misunderstands what occurred. The trial court must make its
own findings regarding the threshold determination of proper cause or change of circumstances
before referring a matter to the Friend of the Court to conduct an “investigation.” MCL
552.505(1)(g); Bowling v McCarrick, 318 Mich App 568, 571-572; 899 NW2d 808 (2016).
However, Bowling entailed a “conciliator’s report,” and no record was made of the proceedings
that culminated in the report. Id. at 570-572. A hearing on the record before a referee is entirely
different. Unlike “conciliators,” referees are explicitly charged with fact-finding in domestic
relations matters, MCL 552.507(1)-(2), all referee hearings must be recorded, MCR 3.215(D)(4),
and any party is entitled to a de novo review by the trial court, MCR 3.215(E)(4), MCL
552.507(4). Trial courts are expressly authorized to delegate an initial fact-finding hearing to the
referee, as long as they do not preclude the parties from presenting “live evidence at the judicial
hearing.” MCR 3.215(F)(2). The hearing held before the referee here is simply not just another
name for an “investigation” under MCL 552.505(1)(g).

        Furthermore, the trial court is not necessarily required to hold a separate hearing before
revisiting a custody decision. Rather, “[t]he trial court is merely required to preliminarily
determine whether proper cause or a change in circumstances exists before reviewing the
statutory best-interest factors with an eye to possibly modifying the prior custody order.”
Mitchell v Mitchell, 296 Mich App 513, 518; 823 NW2d 153 (2012). The trial court properly
delegated the initial hearing to the referee, and it properly held a review hearing. The referee
noted that both parties had remarried, there were additional household members living with the
children, the children had moved and changed schools, the children’s relationship with plaintiff
had diminished and their parental preference had changed, and AAM had moved out of
plaintiff’s home, which affected the time AAM spent with MCM. The combination of these
factors constituted the change of circumstances. The trial court affirmed this finding and also
added that defendant had recently returned to Michigan and became more active in the children’s
lives. Given the concerns regarding plaintiff’s relationship with both of the children and the
allegations of abuse, the referee’s determination was not against the great weight of the evidence.
See Vodvarka, 259 Mich App at 513-514 (stating that “there must be at least some evidence that
the material changes have had or will almost certainly have an effect on the child”). The
combination of the changes “could have a significant effect on the child’s well-being,” which
constitutes a sufficient “change of circumstance.” Id. at 511-512.

        Plaintiff seemingly contends that at the July hearing, the trial court improperly found
another proper cause or change of circumstances without the jurisdiction to engage in any such
analysis. If this is indeed plaintiff’s contention, we disagree. It is obvious from the face of the
transcript that the trial court merely referenced and reiterated its earlier finding. The trial court
revisited its best interests findings only, not its earlier determinations that an established


                                                 -6-
custodial environment existed with plaintiff and that a change of circumstances had occurred.
As discussed, those findings were not erroneous.

                VI. CONSIDERATION OF THE CHILD’S BEST INTERESTS

        Because the trial court properly found a change of circumstances, the trial court properly
addressed whether a change in custody was in MCM’s best interests. As noted, MCL 722.23
enumerates several specific factors that the trial court must consider and evaluate in determining
whether a change in custody is in the best interests of a child. The trial court properly addressed
all of the factors, and it ultimately concluded that defendant failed to establish that changing
MCM’s custody was in MCM’s best interests. At the July hearing, the trial court reviewed
additional evidence from its second in camera interview with MCM and from a psychological
report prepared by the counselor. The trial court then reconsidered some of its best interests
findings, and it concluded that changing custody was in MCM’s best interests. We will discuss
those findings below.

        First, however, we were extremely concerned by the trial court’s order after its initial
conclusion that changing custody had not been established to be in MCM’s best interests. The
trial court described its order as a mere change in parenting time. However, the label applied to
an action is not dispositive. In re Traub Estate, 354 Mich 263, 278-279; 92 NW2d 480 (1958).
The bench and bar unfortunately lacks any real guidance from our Legislature or Supreme Court
for determining when a permissible change in parenting time crosses the threshold into an
impermissible change in custody in disguise. Nevertheless, we are persuaded that the threshold
was crossed here. The effect of the trial court’s order was to reduce plaintiff from MCM’s
primary caregiver to a weekend parent in the summer. The new arrangement would constitute a
change in the established custodial environment. See MCL 722.27(1)(c). See also Powery v
Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008). Because the trial court determined that
the established custodial environment existed with plaintiff, it erred by changing that established
custodial environment without finding clear and convincing evidence that the change was in the
child’s best interests.

         However, we will not disturb a trial court’s order unless failing to do so would be
“inconsistent with substantial justice.” MCR 2.613(A); MCR 3.902(A); MCL 769.26. An error
that ultimately does “not affect the outcome of the proceeding” is harmless and cannot be a basis
for reversal. In re Portus, 325 Mich App at 396. The trial court permissibly reconsidered its
best interests findings and concluded that the evidence does clearly and convincingly establish
that a change of custody was in MCM’s best interests. The trial court mentioned changing its
order, but insofar as we can determine, it did not implement any immediate change to the status
quo to which the parties did not agree. Again, we look to substance rather than formalities or
labels. The trial court was empowered to reconsider its factual determinations, and its
reconsidered conclusion permitted the change of custody it had already effectuated. The trial
court’s unusual procedure makes our review more difficult, but it was ultimately harmless.
Because, as we will discuss, it properly found the change of custody in MCM’s best interests, its
order effectively changing her custody was proper.




                                                -7-
                                   VII. DE NOVO HEARING

       Plaintiff also contends that the trial court erred in holding the de novo hearing because
defendant did not specify the grounds in the referee’s recommendation to which he objected. We
disagree.

       According to MCR 3.215(E)(4),

               A party may obtain a judicial hearing on any matter that has been the
       subject of a referee hearing and that resulted in a statement of findings and a
       recommended order by filing a written objection and notice of hearing within 21
       days after the referee’s recommendation for an order is served on the attorneys for
       the parties, or the parties if they are not represented by counsel. The objection
       must include a clear and concise statement of the specific findings or application
       of law to which an objection is made. Objections regarding the accuracy or
       completeness of the recommendation must state with specificity the inaccuracy or
       omission.

Defendant’s objection to the referee recommendation merely requested a de novo review
hearing. However, defendant explained that he did not object to any of the referee’s factual
findings. Instead, defendant argued that the referee erred in concluding that he failed to establish
that a change of custody was in MCM’s best interests. The trial court concluded that defendant
would cure any procedural defects if he specified his objections in a brief filed before the de
novo hearing. However, it does not appear that defendant ever filed any additional briefing.

       Even if plaintiff is correct in asserting that defendant failed to specify the ground on
which his objection was made, as required by MCR 3.215(E)(4), it is clear that plaintiff was
aware of the nature of defendant’s objection before the hearing. Plaintiff raised no objections at
the hearing regarding this issue and defendant presented no new evidence, testimony, or
argument at the de novo hearing. As a result, plaintiff could not have been surprised and has not
shown that she suffered any prejudice from defendant’s failure to provide specific grounds in his
request for a de novo hearing. Therefore, we cannot find that any lack of specificity by
defendant warrants disturbing the trial court’s orders. See Phillips, 241 Mich App at 20.

                              VIII. BEST INTERESTS FINDINGS

        Plaintiff finally contends that the trial court’s assessments of the best interests factors
were erroneous. We find no error in the trial court’s final, updated findings at the July hearing.
According to MCL 722.23, the “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.


                                                -8-
              (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.

               (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.

The trial court found factors (a), (b), and (e) to favor both parties equally. The trial court found
factors (c) and (h) to favor plaintiff. The trial court originally found factor (d) to favor plaintiff,
but upon reconsideration found it to favor defendant. The trial court originally found factor (g)
equal, but upon reconsideration found it to also favor defendant. The trial court found factors (f),
(i), (j), (k), and implicitly (l) to favor defendant.

         On appeal, plaintiff initially contended that factors (a) and (j) should favor her, and
factors (f), (i), and (k) should be neutral. In light of the trial court’s consideration and the
procedurally difficult situation in which it places plaintiff, we presume she would also challenge
the trial court’s findings that factors (d), (g), and (l) favor defendant. In the interests of judicial
economy and the obvious need to expedite this matter, we will treat those factors as properly
challenged. Plaintiff does not challenge factors (b), (c), (e), or (h), so we will not address those
factors. We conclude that the trial court’s findings were properly supported by the evidence in
the record.


                                                 -9-
        Factor (a) addresses “The love, affection, and other emotional ties existing between the
parties involved and the child.” The trial court found the parties equal because, although it was
clear that they both loved their children, both parties encountered difficulties expressing that love
and maintaining a healthy relationship with the children. The evidence as to both parties was
mixed. For example, there was testimony that MCM had a good relationship with plaintiff, but
also that MCM was unhappy in plaintiff’s home. The evidence supports the trial court’s finding
that plaintiff’s refusal to acknowledge or address her own mental health problems and treatment
of the children was unhealthy for the children. The evidence also supports the trial court’s
finding that defendant was also undermining the children’s relationship with plaintiff.
Ultimately, we do not find the trial court’s finding that this factor favored neither party against
the great weight of the evidence.

         Factor (d) addresses “The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” The trial court initially found this
factor to slightly favor plaintiff. It reasoned that defendant had not been actively engaged with
the children over a long term, and although it had “concerns” about plaintiff’s home, it did not
believe her home had been “horribly dysfunctional for the children.” On reconsideration, the
trial court went back through its notes and the evidence. It concluded that defendant appeared to
have been providing an appropriate and stable environment, whereas the trial court concluded
that it had previously given inadequate weight to domestic violence committed by plaintiff. It
therefore concluded that factor (d) actually favored defendant. There was evidence in the record
that plaintiff physically and emotionally abused the children, and there was evidence that AAM
found defendant’s home to be significantly more stable. We are not persuaded that the trial
court’s finding that factor (d) favored defendant was against the great weight of the evidence.

        Factor (f) addresses “The moral fitness of the parties involved.” The trial court found this
favor to weigh against plaintiff because she had instructed AAM to lie to medical personnel
about how he sustained an injury caused by plaintiff. The trial court credited plaintiff for
refusing to lie about how many driving hours AAM had completed, but nonetheless found its
instruction for AAM to lie a “huge concern.” Plaintiff does not challenge whether the incident
occurred, but argues that the trial court should not have given it much weight because it was an
isolated incident from many years previously. We find no error in the trial court considering the
incident, and we decline to substitute our judgment for that of the trial court regarding the
amount of weight it should receive. We therefore are not persuaded that it was against the great
weight of the evidence for the trial court to find that factor (f) favored defendant.

        Factor (g) addresses “The mental and physical health of the parties involved.” The trial
court initially observed that defendant was physically disabled, whereas plaintiff was not. It also
found that both parties had serious mental health concerns that they appeared unwilling to
address despite being “pretty quick to identify issues for the other.” The updated counselor’s
report considered in July strongly indicated that the earlier psychological evaluation had been
flawed as to both parties. In particular, the counselor believed plaintiff’s prior diagnosis with a
personality disorder was probably wrong and she actually suffered from anxiety. However, the
counselor also noted that some of plaintiff’s personality inventory scores were concerning and
inconsistent with her presentation. The counselor also noted that AAM had been “deeply hurt”
by defendant’s absence from his life, but both children described abusive conduct by plaintiff. In
contrast, the counselor found defendant fairly healthy and stable; specifically noting that “[t]hese

                                                -10-
findings do not support the accusations of spousal abuse made against him by his ex.” We do
not find it against the great weight of the evidence for the trial court to find, on reconsideration,
this factor to favor defendant.

        Factor (i) addresses “The reasonable preference of the child, if the court considers the
child to be of sufficient age to express preference.” Clearly, MCM is of sufficient age to express
preference, and as discussed above, it is not seriously disputable that she initially preferred living
with defendant and maintained that preference. The trial court emphasized that her preference
was strong, reasonable, and rational. Plaintiff nevertheless contends that MCM’s preference was
not reasonable and that MCM did not comprehend the fact that changing custody would entail
changing schools and various other aspects of her environment. We find plaintiff’s contention
contrary to the evidence, bordering on preposterous. The counselor confirmed that MCM “loves
and cares about her mother” but clearly wanted to live with her father. The counselor also
emphasized that MCM needed “more of a voice” and for the choice of where to reside to be “put
in her hands” (emphasis in original). The trial court’s finding that factor (i) favored defendant is
not against the great weight of the evidence.

        Factor (j) addresses “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.” It is not clear from the record what findings the trial court initially
made regarding this factor, but its remarks on the record strongly suggested that it found both
parties extremely disappointing. Plaintiff contends on appeal that the trial court placed too much
emphasis on a single audio recording of what she understates as “a momentary emotional
outburst and lapse of judgment.” We disagree. On reconsideration, the trial court stated that it
had previously found this factor to favor defendant. It expressed disappointment that defendant
had not done more to encourage AAM to repair his relationship with plaintiff, but it found this
factor to slightly favor defendant on the basis of the audio recording of plaintiff. We disagree
with plaintiff’s implicit suggestion that the trial court based its conclusion solely by taking the
audio recording out of context, and she ignores the other evidence in the record tending to
suggest that the recorded incident was not a unique departure from her normal conduct. We are
therefore not persuaded that it was against the great weight of the evidence for the trial court to
find that this factor slightly favored defendant.

        Factor (k) addresses “Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.” It is again unclear what the trial court’s initial findings were
regarding this factor. From its discussion about plaintiff’s apparent ongoing conduct, and the
evidence that defendant had only retaliated once, it appears to have implicitly found this factor to
favor defendant. On reconsideration, the trial court emphasized more strongly that plaintiff was
clearly aggressive and abusive to both defendant and the children, and it explicitly stated that it
found this factor to favor defendant. Plaintiff argues that the trial court ignored evidence of
domestic violence committed by defendant and the fact that both parties had long since moved
on into stable and peaceful new relationships. The trial court did recognize that defendant was
not solely a victim, but it emphasized that it relied heavily on “[plaintiff’s] dynamic with the
children has gone beyond just discipline, to what I would find abusive.” It is clear that the trial
court was more concerned on reconsideration by the domestic violence committed against the
children by plaintiff. We do not find that it was against the great weight of the evidence for the
trial court to find this factor in favor of defendant.

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        Finally, on reconsideration, the trial court also discussed issues under factor (l), which
addresses “Any other factor considered by the court to be relevant to a particular child custody
dispute.” The trial court observed that MCM had mental health concerns, which is
overwhelmingly supported by the psychological report. The trial court apparently intended that
observation to be for the benefit of the parties rather than favoring either party. The trial court
also commended both parties for getting assessments and having attempted to engage in
coparenting, which implicitly favored both parents equally. Finally, the trial court noted that
AAM was living with defendant, which weighed in favor of defendant because of the desirability
of keeping AAM and MCM together. We find none of these findings against the great weight of
the evidence.

        Consequently, we disagree with plaintiff’s contention that the trial court erred in any of
its specific best interests findings or in its ultimate conclusion that a change in custody had been
shown by clear and convincing evidence to be in MCM’s best interests.

                                       IX. CONCLUSION

        The trial court’s January order effectively changed MCM’s custody. Therefore, had the
trial court not reconsidered its best interests findings, we would have been constrained to vacate
its order and remand for further consideration. However, although unusual, the trial court’s
permissible reconsideration of its best interests findings in July rendered the change in custody
proper. We find no other errors that resulted in any prejudice or other basis for disturbing the
trial court’s orders. Therefore, we affirm. Because of the unique posture of this appeal, we
direct that the parties shall bear their own costs. MCR 7.219(A).



                                                             /s/ Michael F. Gadola
                                                             /s/ Jane E. Markey
                                                             /s/ Amy Ronayne Krause




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