                            STATE OF MICHIGAN

                              COURT OF APPEALS



BROOKE TERESE HOLMES,                                                 UNPUBLISHED
                                                                      September 11, 2018
                 Plaintiff-Appellant,

v                                                                     No. 341025
                                                                      Kent Circuit Court
THOMAS JAMES HOLMES,                                                  LC No. 15-000779-DM

                 Defendant-Appellee.


Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ.

PER CURIAM.

        Plaintiff mother appeals the parties’ Judgment of Divorce that granted defendant father
sole legal custody and primary physical custody of the parties’ minor children BH and NH. We
reverse and remand.

                                         I. BACKGROUND

        The parties married on August 21, 2010 in Kent County, Michigan. In September 2010,
they moved to Billings, Montana after defendant accepted a managerial position. They lived
with defendant’s mother in Montana until she remarried and moved with her spouse to Idaho,
leaving them as caretakers of the house. The parties’ first child, BH, was born in Montana on
May 28, 2012. The parties returned to Michigan on May 22, 2014. On September 2, 2014, the
parties were involved in a verbal altercation that turned physical. Plaintiff alleged defendant
pushed her and defendant alleged plaintiff fell as he blocked her attempts to remove BH from his
arms. Plaintiff left the home two days later on September 4 with BH under the guise that she
was having coffee with a friend. Plaintiff filed a complaint for divorce on January 27, 2015.1
The parties’ second child, NH, was born on April 1, 2015. Defendant received limited and
inconsistent parenting time with both children until he motioned the court for a parenting time
order. A contentious 23-day divorce trial began on January 22, 2016 and concluded on March
20, 2017. Each party blamed the other’s controlling behavior for the ruin of the marriage.
According to plaintiff, defendant was verbally and emotionally abusive and controlled her
movements at home and in public. According to defendant, plaintiff began controlling his
relationships with friends and family as early as their wedding, she was aggressive, vengeful, and

1
    Plaintiff initially filed for divorce on November 11, 2014, but that complaint was dismissed.



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manipulated others into believing she was a victim. On August 24, 2017, the court rendered an
opinion and order in which it determined that an established custodial environment existed with
plaintiff. The opinion analyzed each of the 12 child custody factors listed in MCL 722.23 and
based upon that analysis granted primary physical and legal custody to defendant. Of the 12
factors, the court found one in plaintiff’s favor, four in defendant’s favor, and seven neutral. We
find error in the court’s rulings on factors (b), (f), and (h). Because the court’s custody decision
was based on a sum total of the child custody factors, we remand the matter for a redetermination
of custody.

                                  II. STANDARD OF REVIEW

        Under the Child Custody Act, MCL 722.21 et seq., “all orders and judgments of the
circuit court shall 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.” MCL 722.28. In application, the trial court’s “[f]indings of fact are to be reviewed
under the ‘great weight’ standard, discretionary rulings are to be reviewed for ‘abuse of
discretion,’ and questions of law for ‘clear legal error.’ ” Fletcher v Fletcher, 447 Mich 871,
877; 526 NW2d 889 (1994). The court’s decision as to whom to award custody is a
discretionary ruling that we review for an abuse of discretion. Berger v Berger, 277 Mich App
700, 705; 747 NW2d 336 (2008). An abuse of discretion occurs in the child custody context
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.
Fletcher, 447 Mich at 879-880. A “ ‘clear legal error’ occurs when a court incorrectly chooses,
interprets, or applies the law.” Dailey v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501
(2011) (citation omitted).

                                          III. ANALYSIS

        Before any decision as to the custody of a child is made, the court must determine
whether an established custodial environment exists. Mogle v Scriver, 241 Mich App 192, 197;
614 NW2d 696 (2000). “The custodial environment of a child is established if over an
appreciable time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c). The trial court
“shall not . . . 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.”
MCL 722.27(1)(c). Here, the trial court determined that an established custodial environment
existed with plaintiff and defendant does not challenge that finding on appeal. Therefore, going
forward, defendant had the burden of proving by clear and convincing evidence that modification
of the established custodial environment was in the children’s best interests.

        “To determine the best interests of the children in child custody cases, a trial court must
consider all the factors delineated in [MCL 722.23] applying the proper burden of proof.”
Foskett v Foskett, 247 Mich App 1, 9; 634 NW2d 363 (2001). A trial court’s findings with
regard to each factor “should be affirmed unless the evidence clearly preponderates in the
opposite direction.” Berger, 277 Mich App at 705. “This Court will defer to the trial court’s
credibility determinations, and the trial court has discretion to accord differing weight to the
best-interest factors.” Id.


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       MCL 722.23 cites 12 factors to be considered, evaluated, and determined by the court to
decide a child’s best interests.

        (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.

        (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. [MCL 722.23].

In this case, the trial court weighed factors (a), (c), (e), (g), (i), (k), and (l) evenly. The trial court
weighed factor (d) in plaintiff’s favor, and factors (b), (f), (h), and (j) in defendant’s favor.
Plaintiff challenges the court’s findings with respect to factors (b), (c), (f), (h), and (j) as being
against the great weight of the evidence produced at trial. We agree with plaintiff in part, that
the court’s findings in respect to factors (b), (f) and (h) were against the great weight of the
evidence.



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        Plaintiff argues that factor (b), MCL 722.23(b), should have been weighed evenly
between the parties and that the court’s cited concerns under this factor were misplaced and
should have been applied rather to factor (j). We agree. In its’ opinion, the court stated that the
focus for this factor was on “each parents’ ability to continue to foster emotional ties with the
child in the future.” It gave no case law supporting this interpretation. In support of finding this
factor favored defendant, the court focused on the lack of any evidence that defendant was an
alcoholic and in need of anger management, and on instances that showed plaintiff was rather the
controlling spouse. The court pointed out that no witness had attested to defendant having a
drinking problem or to his temperament including fits of rage. It noted that in 2013 after BH was
born, plaintiff described defendant as her “leveler when there is something emotional” to
defendant’s sister and that plaintiff put a hole in the wall during her pregnancy with BH. The
court determined that defendant was not a danger to either child because there was no exhibit
produced from Children’s Protective Services (CPS) declaring so. In turn, the court
acknowledged plaintiff’s testimony that defendant was demeaning, manipulative and “berated
[her] for her grocery shopping habits.” However, the court relied on: 1) plaintiff’s reduction of
the parties’ wedding guest list; 2) not allowing her mother-in-law’s dog to be in the Montana
home; 3) supervising defendant’s parenting time with BH; 4) not involving defendant in NH’s
birth; 5) changing defendant’s parenting time with NH to supervised when he was late returning
her; and 6) not involving defendant in decisions related to daycare and preschool, as instances of
plaintiff’s controlling behavior and for its decision that factor (b) favored defendant.

        The court’s finding that factor (b) favored defendant was against the great weight of the
relevant evidence. In Pierron, we stated that the evidence relevant to factor (b) is whether
“plaintiff and defendant were equally capable of providing love and affection for the minor
children.” Pierron v Pierron, 282 Mich App 222, 253; 765 NW2d 345 (2009). As expressed in
Wardell, relevant considerations include testimony regarding the parties’ love of their children,
the children’s affection toward them, and the suitability of their respective homes. Wardell v
Hincka, 297 Mich App 127, 135; 822 NW2d 278, 283 (2012). In MacIntyre, we also found
relevant whether “each party equally assisted the child with his schoolwork, hobbies, and
religious education,” and which party “was better able to provide guidance.” MacIntyre v
MacIntyre (On Remand), 267 Mich App 449, 454; 705 NW2d 144 (2005). Thus, there is no case
support that this factor addresses the future. The evidence relied on by the court did not
demonstrate that plaintiff lacked the present capacity and disposition to love and guide the
children, nor that this factor favored defendant. The overwhelming evidence produced at trial
showed that plaintiff was bonded to both children and they to her. Witnesses described
plaintiff’s interactions with BH and NH as affectionate and as plaintiff being able to comfort and
redirect both children. Even the defendant who frequently disparaged the plaintiff acknowledged
that the children were close and loving with their mother. Even assuming plaintiff was the more
controlling spouse, there was no evidence that plaintiff’s controlling behavior affected her
capacity and disposition to love and guide the children. Cf. Wright v Wright, 279 Mich App 291,
301; 761 NW2d 443 (2008). The court misapplied the law and based its factor (b) decision on
evidence that was relevant to factor (j).




                                                -4-
       Plaintiff next argues that the court’s decision as to factor (c), MCL 722.23(c), was against
the great weight of the evidence and should have been found in her favor2 because she was the
only party with a continuous income3 and defendant refused to vaccinate the children.

       In Berger, this Court explained that,

       Factor c does not contemplate which party earns more money; it is intended to
       evaluate the parties’ capacity and disposition to provide for the children’s material
       and medical needs. Thus, this factor looks to the future, not to which party earned
       more money at the time of trial, or which party historically has been the family’s
       main source of income. [Berger, 277 Mich App at 712.]

The trial court found that this factor was neutral because both parties were employed throughout
the marriage and no party had argued that the children suffered any serious consequence for
failure of the other party to provide for the children’s needs. The court’s decision was not
against the great weight of the evidence. Defendant and plaintiff testified that defendant worked
for Matheson and Heartland Payment Systems while in Montana. At the time of trial, defendant
was living from savings, looking for work that would allow him the greatest amount of time with
the children, and had recently taken steps to be a substitute teacher. Plaintiff testified to working
at JC Penney and to operating in-home daycare and jewelry businesses while in Montana. At the
time of trial, plaintiff testified she was employed at her church. Both parties received
government assistance for food and health insurance. The court did not address plaintiff’s
argument related to defendant’s refusal to provide the children with vaccinations however, it
“need not include consideration of every piece of evidence entered and argument raised by the
parties.” MacIntyre, 267 Mich App at 452. Moreover, the defendant’s testimony supported that
he did not refuse the children medical care, but rather wanted to discuss which vaccines were
required and which were recommended because according to defendant, he and plaintiff agreed
during their marriage that they would not give their children every vaccine recommended. The
court’s decision to find this factor neutral between the parties was not against the great weight of
the evidence when the evidence presented substantiated that each party had the capacity and
disposition to provide for the children’s needs.

         We agree with plaintiff that the court’s finding that the moral fitness factor, MCL
722.23(f), favored defendant was against the great weight of the evidence, in part because the
court did not focus on how the parties’ moral fitness affected the children. In analyzing this
factor, the trial court acknowledged that each party called the other a liar and produced witnesses
that claimed the other was untruthful, which resulted in a “he-said she-said” situation. The court
noted two instances however that caused it to find factor (f) in defendant’s favor, first that
plaintiff stole a wedding picture from defendant’s sister Becky Reno, and second that defendant

2
  Plaintiff concedes in her reply brief that the standard for evaluating her argument for factor (c)
is great weight and not clearly erroneous as argued in her principle brief.
3
  Plaintiff’s statement of the issue presented also states that defendant was voluntarily
unemployed to the children’s detriment, but plaintiff does not make this argument in the body of
her argument.



                                                -5-
established the “truth police” with BH “[i]n part because plaintiff controlled the child.” We
address the latter first, because the court noted the CPS failure to prosecute was the deciding
issue.

        Defendant testified that after CPS allegations were lodged against him, he made BH, then
barely three years’ old, “an honorary member of the truth police.” He told BH that when BH
heard something that was wrong, to not be afraid to stand up and say “that’s wrong.” Defendant
explained that he created the truth police force to give BH the power to voice an opinion against
what was not true.

        “[Q]uestionable conduct is relevant to factor (f) only if it is a type of conduct that
necessarily has a significant influence on how one will function as a parent.” Fletcher, 447 Mich
at 887. Under factor (f), the court must “look to the parent-child relationship and the effect that
the conduct at issue will have on that relationship.” Id. The focus “is not who is the morally
superior adult, but rather the parties’ relative fitness to provide for their child, given the moral
disposition of each party as demonstrated by individual conduct.” Berger, 277 Mich App at 712-
713 (citation and quotation marks omitted).

        The court stated “the more important reason” for finding factor (f) favored defendant was
the instance involving the “truth police.” The court’s citation to defendant’s creation of the
“truth police” however was only relevant to mentioning that defendant was investigated and
cleared by CPS. The court acknowledged that the CPS report was not produced, but determined
the lack of production inconsequential when alleged parts of the report were testified to without
objection. The implication of the court’s reliance on CPS as an independent factor was that
plaintiff lodged two baseless CPS complaints against defendant. However, the court specifically
precluded information about who filed the reports. On April 29, 2016, after defense counsel
asked the plaintiff whether she filed a CPS complaint, the court ruled, “You can’t ask that
question.” Later, it noted, “She can’t —I-won’t let her answer it and you can’t ask it.” On June
16 2016, despite the court’s order, defense counsel again asked plaintiff if she reported a certain
emergency visit for NH to CPS, and she answered, “No.” Defendant attempted to testify about
an e-mail he claimed to have read that was authored by the plaintiff and sent to CPS, but an
objection was lodged. At best, the record contains evidence that defendant claimed that he was
accused of being a pedophile in some communication to CPS between plaintiff and CPS.
However, we cannot determine if that was the basis of the complaint or a comment allegedly
made in the course of a CPS investigation without the CPS report’s admission. MRE 1002.4
The court held that, “What is clear is that defendant was cleared by them at least once, maybe
twice.” The court’s conclusion that CPS did not proceed with any petitions to the court was not
disputed by the parties. However, neither the inference that plaintiff was the source of a baseless
report to CPS, or that any information provided in the course of a CPS investigation by the
plaintiff was false and a material factor in the decision not to take further action, is supported by
this record. The court’s determination of defendant’s moral fitness citing, “CPS is the
independent factor here” was erroneous.

4
 “To prove the content of a writing, recording, or photograph, the original writing, recording, or
photograph is required, except as otherwise provided in these rules or by statute.” MRE 1002.



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        For the purposes of this opinion, we do not find error in the court’s determination that
plaintiff took a picture and possibly money from her sister-in-law Reno. Reno testified that
plaintiff had access to her home when she was not there at a time contemporaneous to a certain
picture and money going missing. She also testified that, at the least, the missing picture was
later discovered in plaintiff’s possession. While plaintiff denied stealing money or photographs
from Reno, the court had adequate evidence upon which to conclude otherwise. There was
however, no evidence or analysis from the court that plaintiff’s stealing of a wedding photo
influenced her functioning as a parent. The court’s finding that factor (f) favored defendant was
against the great weight of the evidence and clear legal error.

        We also agree with plaintiff’s contention that the court’s decision to weigh factor (h),
MCL 722.23(h), in defendant’s favor was against the great weight of the evidence. We note that
plaintiff failed to address this factor in her principal brief. The court’s decision was based on its
finding that plaintiff had not enrolled BH in preschool. There was no evidence that BH had a
particularized need for preschool enrollment due to any mental or physical abilities or
disabilities. Defendant’s witness Alexander Manker, a former teacher, offered opinion testimony
that plaintiff’s decision not to enroll BH in preschool was detrimental to BH’s overall education
and his success in kindergarten. Defendant testified that he asked plaintiff multiple times about
sending BH to preschool and that plaintiff initially, ignored the issue, but when pressed, told
defendant it was too expensive. In opposition, plaintiff argues in her reply brief that BH attended
preschool at the daycare to which he was sent on Wednesdays when plaintiff worked.
Regardless of whether there was a significant educational component at the institution, BH’s
attendance was only one day a week. Nevertheless, while there is no doubt that pre-kindergarten
education affords children some advantages, there was no testimony upon which the court could
conclude that BH had a particularized need for preschool. Further, the state of Michigan does
not require enrollment in pre-kindergarten educational programs. The court’s decision finding
factor (h) in defendant’s favor was against the great weight of the evidence. This factor should
not have favored either party.

         Plaintiff lastly contends that the court’s decision in favor of defendant as to factor (j),
MCL 722.23(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,” was against the great weight of the evidence. We disagree. The record was
replete with evidence of the parties’ rancorous attempts to co-parent. Significantly, plaintiff
admitted imposing a supervised visitation on the defendant sua sponte. The court’s analysis
under factor (b) listed conduct that demonstrated unwillingness on the part of plaintiff to foster
the relationship of the children with their father. In the same analysis, the trial court noted
plaintiff’s attempts to prevent the children from waving goodbye to defendant, “trouble at
doctor’s appointments” and attempts to limit defendant’s contact with the children. There was
also significant testimony that defendant “made statements that indicated a very low opinion of
Plaintiff.” The defendant called plaintiff many names during trial and in e-mails produced at
trial. There was also testimony from the defendant that another person could serve the children’s
mothering needs other than the plaintiff. There was no evidence however, that defendant’s
name-calling inhibited plaintiff’s relationship with the children. The testimony from defendant
at trial was that he believed it important for the children to have a relationship with their mother.
Plaintiff also testified that it was important for the children to have a relationship with their
father, however, her actions of limiting defendant’s parenting time illustrated otherwise. The e-


                                                -7-
mails produced by the parties at trial evidenced that plaintiff was not willing to grant defendant
additional parenting time, in other words negotiate with defendant, absent a court order.
Testimony supports that plaintiff made multiple unilateral decisions about the children’s care and
well-being without consulting defendant, as well as denied defendant’s requests for information
about the children. The court’s decision as to this factor was not against the great weight of the
evidence.

        The trial court’s findings regarding factors (b), (f), and (h) were against the great weight
of the evidence. Based on the evidence, these factors should have been neutral. Remand is
appropriate, because the trial court’s decision was premised on the sum total of the best interest
factors. On remand, the trial court “is to review the entire question of custody” and consider
again, “all the statutory factors.” Ireland v Smith, 451 Mich 457, 468-469; 547 NW2d 686
(1996).

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Douglas B. Shapiro
                                                             /s/ Michael F. Gadola




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