                           STATE OF MICHIGAN

                            COURT OF APPEALS



WILLIAM STUMPE,                                                      UNPUBLISHED
                                                                     August 18, 2016
               Plaintiff-Appellant,

v                                                                    No. 328614
                                                                     Genesee Circuit Court
DEBORAH STUMPE,                                                      LC No. 11-302568-DM

               Defendant-Appellee.


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

PER CURIAM.

       The trial court conducted a nine-day evidentiary hearing with respect to plaintiff’s motion
to modify custody of the parties’ minor child, KS. In a lengthy opinion and order, the trial court
denied plaintiff’s motion, and plaintiff appeals as of right the court’s ruling. We affirm.

       On appeal, plaintiff first contends that the trial court erred in concluding that proper cause
or a change of circumstances did not exist to warrant reexamination of the existing custodial
arrangement. Plaintiff alleges a litany of factual circumstances that he claims amounted to
proper cause or a change of circumstances.

        “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 (2004). The great weight
standard requires that the trial court’s factual findings be affirmed unless the evidence clearly
preponderates in the opposite direction. Butler v Simmons-Butler, 308 Mich App 195, 200; 863
NW2d 677 (2014). A trial court’s custody order must be affirmed on appeal “ ‘unless the trial
judge made findings of fact against the great weight of evidence or committed a palpable abuse
of discretion or a clear legal error on a major issue.’ ” Diez v Davey, 307 Mich App 366, 389;
861 NW2d 323 (2014), quoting MCL 722.28.

        The seminal case on the issue of proper cause or a change of circumstances as
contemplated by MCL 722.27(1)(c) is Vodvarka, 259 Mich App 499. In Vodvarka, this Court
recognized that if a trial court makes a determination that proper cause or a change of
circumstances does not exist warranting reexamination of an existing custody arrangement, the
trial court is statutorily precluded from revisiting a valid prior custody decision and from

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engaging in a reconsideration of the best interest factors. Id. at 508-509. The person moving to
alter custody bears the burden, by a preponderance of the evidence, of demonstrating that proper
cause or a change of circumstances exists before the trial court may undertake an inquiry into
whether an established custodial environment exists. Id. at 509. In Vodvarka, this Court set
forth an “objective test for courts to apply in determining what constitutes proper cause or a
change of circumstances.” Id. at 510. Recognizing that the underlying purpose of MCL
722.27(1)(c) is to minimize unwarranted disruptions in a child’s custody and to “[p]rovid[e] a
stable environment for children[,]” this Court first provided guidelines for determining if proper
cause exists. Id. at 509, 510-512. In doing so, the Vodvarka panel observed that there are no
applicable “hard or fast rule[s]” and that the inquiry is a “fact-intensive” one. Id. at 511.

              Therefore, we conclude that in context, proper 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.

                                              * * *

               [T]o establish “proper cause” necessary to revisit 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. [Id. at 511-
       512 (footnote omitted).]

Likewise, to demonstrate a change of circumstances as set forth in MCL 722.27(1)(c), the
moving party must establish 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. The Court cautioned
that not just any change will amount to a change of circumstances, rather, the evidence must
show more than normal life changes that occur during a child’s life, 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.

        In ruling on the issue whether plaintiff had demonstrated, by a preponderance of the
evidence, that proper cause or a change of circumstances existed that would warrant
reexamination of the custody status, the trial court undertook a detailed analysis of the factual
allegations that plaintiff mounted against defendant. First, concerning the testimony that
defendant was an absentee mother, the trial court noted that the nanny’s testimony had credibility
issues where she had prior acrimony with defendant and plaintiff paid her salary. The trial court
recognized that defendant may have “overstepped” when using the nanny’s services, but that
plaintiff had not proven his essential claim that defendant did not properly parent KS. With
regard to defendant’s mental health issues, the trial court noted the lack of any arrests or charges
concerning domestic violence, and that there were no reports from Child Protective Services
(CPS) or any other agency to substantiate plaintiff’s allegations that defendant’s anger issues

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made her an unfit parent. The trial court also considered a psychologist’s opinion that any
anxiety or depression that defendant was experiencing would abate after the conclusion of this
custody action and did not interfere with her ability to parent. The trial court also noted that
plaintiff could be very mean and aggressive himself, referring to text messages that the parties
had sent to each other.1 The trial court then stated that the record evidence did not support
plaintiff’s assertion that defendant had mental illnesses that would prohibit her from being an
effective parent.

        Addressing defendant’s past substance abuse, drinking, and partying lifestyle, the trial
court noted that plaintiff encouraged this behavior before the parties’ relationship collapsed in
Hawaii in October 2013, and that after plaintiff requested drug testing in this case, defendant
complied and the drug tests came back negative. Noting that defendant likes to party, the trial
court found that her drinking did not rise to the level of rendering her an unfit parent. The trial
court also noted that of the myriad safety issues plaintiff raised with regard to KS while in
defendant’s custody, “this list of complaints” did not evidence that KS was in danger and
amounted to gamesmanship on the part of plaintiff. Finally, the trial court detailed the history of
KS’s dental issues, noting that the dental decay had developed over a two-year period, during
which both plaintiff and defendant had custody of KS. The trial court also emphasized the fact
that when defendant took KS to the doctor in July 2014, the doctor’s medical records provided
that “[n]o periodontal disease was present[,]” and there was no sign of any problems at that time.
The trial court determined that there was nothing in the record leading it to conclude that KS’s
dental problems were the “fault” of either plaintiff or defendant, or that either parent was unfit.
The trial court also emphasized that when defendant was aware of the issue, she “took action to
provide dental care” for KS. The trial court specifically stated:

                In summary, Plaintiff has failed to show proper cause or a change in
       circumstances to entertain a change of the custodial environment. The Court is not
       giving Defendant the Mother of the Year award. This is not validation. Some of
       the criticism of her is deserved. The Court is simply making a legal determination
       that there is a failure to meet the Vodvarka threshold.

       Plaintiff’s arguments in his brief on appeal on this issue essentially contend that the trial
court was remiss in not considering and accepting key evidence that amounted to proper cause or
a change of circumstances warranting reexamination of the custody arrangement. Plaintiff
makes several assertions in support of this primary claim.

        Specifically, plaintiff contends that the evidence concerning defendant’s mental health
issues, her anger, her alcohol and past substance abuse, as well as her stated desire to be away
from her child for “kid free time” are all issues that directly impact defendant’s parenting of KS.
According to plaintiff, these issues are all relevant to best interest factors (b) “[t]he capacity and
disposition of the parties involved to give the child love, affection, and guidance . . .” and (g)


1
  A telling text message from plaintiff to defendant read, “I will be up ur ass for the rest of ur life
. . . that I will promise u.”


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“[t]he mental and physical health of the parties involved[,]” and therefore amount to proper
cause. MCL 722.23(b), (g). Plaintiff further asserts that the trial court’s conclusion that
plaintiff’s mental health issues did not amount to proper cause or a change of circumstances was
inconsistent with its finding, when weighing the best interest factors, that factor (g) weighed in
favor of plaintiff.

        A review of the trial court’s written opinion and order confirms that the trial court duly
considered plaintiff’s allegations regarding defendant’s mental health, her issues with anger, her
consumption of alcohol and her history of cocaine abuse, as well as her reliance on the nanny
and her need for time away from her children. Indeed, the trial court opined that in spite of her
use of a nanny, defendant does successfully parent KS on her own and that plaintiff failed to
demonstrate that defendant had a mental health condition or diagnosis that would impede her
from parenting KS. The trial court also recognized that while plaintiff had “successfully raise[d]
some concerns about defendant’s anger . . .[,]” these issues predated the divorce judgment,
originating at the beginning of plaintiff and defendant’s relationship, and did not amount to a
change of circumstances. While plaintiff no doubt raised appropriate grounds that were relevant
to MCL 722.23(b) and (g), the trial court’s findings reflect its conscientious determination that
these grounds were not “of such magnitude to have a significant effect” on KS’s well-being.
Vodvarka, 259 Mich App at 512. The trial court also clearly made credibility determinations in
reaching this conclusion, as was properly within its province. Wright v Wright, 279 Mich App
291, 299; 761 NW2d 443 (2008). This conclusion is also not inconsistent with the trial court’s
finding with regard to factor (g), where the trial court noted that any mental health issues that
defendant has, as the psychologist noted, do not impede her ability to parent.

         Addressing plaintiff’s allegation that defendant liked to drink alcohol and the issues
surrounding her past substance abuse, the trial court noted that plaintiff himself, particularly
during the trip to Hawaii in October 2013, encouraged defendant to consume alcohol. The trial
court also noted that plaintiff encouraged defendant’s use of his Vicodin pills during the Hawaii
trip when defendant expressed an issue about her tooth pain. The trial court indicated concern
that plaintiff criticized defendant’s past cocaine abuse, yet married her knowing about this issue,
had a child with her, and agreed that she would have primary custody of KS after they divorced
knowing of her past. The trial court gave weight to the fact that defendant had been tested for
drugs with both a urine and hair follicle drug test and that she passed both tests. In sum, the trial
court determined that allegations pertaining to defendant’s mental health, her anger issues, her
need to have time away from KS, and her alcohol consumption and past substance abuse did not
rise to the level of proper cause or a change in circumstances. The trial court’s factual findings
were supported by the record evidence, and therefore cannot be said to be against the great
weight of the evidence.

        Plaintiff also argues that the trial court inconsistently favored plaintiff pursuant to factor
(k), the best interest factor in MCL 722.23 involving domestic violence, but concluded that
defendant’s abusive behavior and verbal disparagement of plaintiff to KS did not amount to
proper cause or a change of circumstances. While the trial court, in weighing the best interest
factors, did note that factor (k) favored plaintiff where he had alleged three instances of physical
violence and defendant had acknowledged one, the trial court gave this factor limited weight,
particularly where the record evidence reflected that plaintiff was likewise demeaning and
aggressive toward defendant. The trial court cited text messages from the record in support of
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this conclusion. This conclusion is not inconsistent with the trial court’s determination
concerning proper cause or a change of circumstances, where the trial court’s rationale on the
Vodvarka threshold clearly reflected its factual determination that these issues predated the
judgment of divorce, and that they were not “significant enough, especially in comparison with
Plaintiff’s own issues, to constitute ‘proper cause.’ ”

         Plaintiff also asserts that the trial court did not adequately address the issue of KS
sleeping with defendant at night, the significant dental health issues that arose with KS while in
defendant’s custody, and the multiple safety issues that plaintiff raised regarding KS while in
defendant’s care. Plaintiff further states that these issues are also relevant to factors (c), “[t]he
capacity and disposition of the parties involved to provide the child with food, clothing, medical
care . . . [,]” (d) “[t]he length of time the child has lived in a stable, satisfactory environment and
the desirability of maintaining continuity[,]” (f) “[t]he moral fitness of the parties involved[,]”
and (j) [t]he 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[.]” MCL 722.23(c),
(d), (f), and (j). A review of the trial court’s opinion reflects that it duly considered the safety
issues alleged against defendant, concluding that they were “unproven” and therefore did not
amount to proper cause or a change of circumstances.

        The trial court also considered the issues with KS’s dental care in great detail, noting that
KS’s dental problems developed over a period of time when both plaintiff and defendant had
custody of KS and that neither party had noticed that KS was experiencing dental issues. The
trial court also acknowledged that while KS’s dental problems were indeed “unfortunate[,]” there
were no grounds to conclude that they were the fault of either party, and that defendant
addressed the situation to the best of her ability as soon as she became aware of it. The trial
court ultimately ruled that plaintiff was unavailing in contending that defendant was at fault for
KS’s dental issues and that a finding of proper cause or change of circumstances was not
substantiated on that basis. To the extent that the trial court’s opinion and order does not
expressly reference the evidence that KS had begun sleeping with defendant and the purported
impact it was having on her relationship with plaintiff, the trial court was free to weigh the
record evidence and discern what weight, if any, to give that evidence in rendering its factual
findings. Wright, 279 Mich App at 299.

        Finally, plaintiff challenges the trial court’s findings on the Vodvarka threshold where he
asserts that the trial court improperly “minimiz[ed]” most of the pertinent evidence in this case
where it originated from the nanny. Plaintiff also argues that the trial court did not consider
evidence from defendant’s former husband that corroborated the nanny’s testimony and that it
erred in giving defendant’s testimony credibility over the nanny’s. These issues question the
trial court’s credibility assessments, as well as its weighing of the record evidence,
determinations that this Court will defer to on appeal. Wright, 279 Mich App at 299; Draggoo v
Draggoo, 223 Mich App 415, 429; 566 NW2d 642 (1997). In sum, the trial court did not err in
concluding that plaintiff failed to establish proper cause or a change of circumstances.

        Because the trial court had conducted a full trial, it decided to make a determination
concerning the established custodial environment, MCL 722.27(1)(c), and to analyze the
statutory best interest factors, MCL 722.23, although the court understood that it was
unnecessary to do so considering its resolution of the threshold issue on proper cause and a

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change of circumstances. Plaintiff challenges the trial court’s rulings with respect to the
established custodial environment and the best interest factors. Given our holding affirming the
trial court’s decision that plaintiff failed to establish proper cause or a change of circumstances, it
becomes unnecessary for us to examine whether the trial court erred in regard to the established
custodial environment and best interest factors, and we decline to do so. The trial court did not
err in denying plaintiff’s motion to modify custody.

      Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs pursuant
to MCR 7.219.



                                                               /s/ William B. Murphy
                                                               /s/ Cynthia Diane Stephens
                                                               /s/ Mark T. Boonstra




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