                          STATE OF MICHIGAN

                            COURT OF APPEALS


EDWARD JOHN GUYETTE, II,                                             UNPUBLISHED
                                                                     October 23, 2018
               Plaintiff-Appellant,

v                                                                    No. 343869
                                                                     Cheboygan Circuit Court
KATHLEEN ISABEL CORNELL,                                             Family Division
                                                                     LC No. 17-012289-DP
               Defendant-Appellee.


Before: MURPHY, P.J., and SAWYER and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff-father, Edward John Guyette, II, appeals by right the trial court’s order awarding
defendant-mother, Kathleen Isabel Cornell, sole physical custody of the parties’ minor children,
EG and LG. We affirm.
                     I. BACKGROUND AND PROCEDURAL HISTORY

        Plaintiff and defendant met sometime in 2008 or 2009 in Cheboygan, Michigan, and
began cohabitating in approximately 2011. In March 2013, shortly after EG was born, plaintiff
and defendant separated. Despite the separation, plaintiff and defendant continued to see each
other periodically until LG was born in 2014. Between March 2013 and the fall of 2015,
plaintiff did not have stable housing; he stayed with friends and family and “couch-surfed.” In
the fall of 2015, plaintiff moved downstate to Sterling Heights to live with his new girlfriend.
Plaintiff lived in his girlfriend’s apartment, which she was renting while she attended
cosmetology school. In approximately May 2016, after the girlfriend graduated, she and plaintiff
moved to Farmington Hills. EG suffered third-degree burns on September 3, 2017, when he fell
into a fire pit while at defendant’s mother’s house. Sometime after this accident in September
2017, plaintiff moved back to Cheboygan joined by his girlfriend.
        After the burn accident, LG was enrolled in preschool in Cheboygan. However, after the
first few days of school, defendant removed LG for fear that plaintiff would take LG away.
Plaintiff alleged that, after removing LG, defendant cut off contact between plaintiff and the
children and between herself and plaintiff. As a result, on October 2, 2017, plaintiff filed a
complaint asking the trial court to find that he is the legal father of the children and to enter an
interim custody and parenting-time order. Plaintiff sought sole physical custody of the children.
On October 18, 2017, the trial court issued a temporary custody order, granting plaintiff standard
parenting time every other weekend and every other holiday and referring the custody matter for
a hearing before a domestic relations referee.
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        The referee subsequently conducted a hearing and recommended that the parties be
awarded joint legal custody and that defendant be awarded sole physical custody. Plaintiff
objected to the referee’s recommendation, and the trial court conducted a de novo hearing on
April 18, 2018. On April 25, 2018, the trial court issued a written opinion and order, denying
plaintiff’s request for physical custody, granting defendant sole physical custody of the minor
children, giving plaintiff standard parenting time, and awarding the parties joint legal custody.

                                          II. ANALYSIS

       Plaintiff contends that the trial court erred by finding that there was an established
custodial environment with defendant and that the court therefore applied the wrong standard of
proof in making its custody determination. Additionally, plaintiff maintains that the trial court
erred in its application of the statutory best-interest factors set forth in MCL 722.23. We
disagree.

                                  A. STANDARD OF REVIEW

       In Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006), this Court,
relying primarily on MCL 722.28, addressed the standards of review in child custody cases,
observing:

               There are three different standards of review applicable to child custody
       cases. The trial court's factual findings on matters such as the established
       custodial environment and the best-interests factors are reviewed under the great
       weight of the evidence standard and will be affirmed unless the evidence clearly
       preponderates in the opposite direction. In reviewing the findings, this Court
       defers to the trial court's determination of credibility. A trial court's discretionary
       rulings, such as the court's determination on the issue of custody, are reviewed for
       an abuse of discretion. Further, pursuant to MCL 722.28, questions of law in
       custody cases are reviewed for clear legal error. [Citations and quotation marks
       omitted.1]

                      B. ESTABLISHED CUSTODIAL ENVIRONMENT
       “The 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.” MCL 722.27(1)(c).
“When resolving important decisions that affect the welfare of the child, the court must first


1
 In the context of a child custody case, an abuse of discretion occurs if the result is so grossly
and palpably violative of fact and logic that it evidences not the exercise of will but perversity of
will, not the exercise of reason but rather of passion or bias, and not the exercise of judgment but
defiance thereof. Maier v Maier, 311 Mich App 218, 221; 874 NW2d 725 (2015).




                                                -2-
consider whether the proposed change would modify the established custodial environment.”
Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). MCL 722.27(1)(c) provides, in
part:

               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. The age of the child, the
       physical environment, and the inclination of the custodian and the child as to
       permanency of the relationship shall also be considered. [See also Pierron, 486
       Mich at 85-86.]

        In this case, the trial court’s factual determinations were well supported by the record.
Plaintiff and defendant’s relationship was intermittent for much of the children’s early lives.
Plaintiff himself testified that, early on, he was not heavily involved with the children, he
“couch-surfed” with friends and family for approximately two years, and he did not have stable
housing. Therefore, during that early period, the children lived exclusively with defendant and
spent the majority of their time in her care. Defendant testified that, after EG was born and even
before she and plaintiff had separated, she was the primary caregiver for EG. She explained that
plaintiff was not around “most of [the] time” but was instead often with friends, that he barely
helped care for EG, and that he did not work and hardly supported the family financially.
Additionally, when plaintiff lived downstate from the fall of 2015 to September 2017, he
essentially exercised standard parenting time. He had the children on every other weekend,
every other holiday, and partially for summer vacations. After the temporary custody order was
instituted, plaintiff continued to exercise standard parenting time. In its opinion and order, the
trial court observed that defendant “has been there consistently for the boys and provided
consistently for their needs.” The record supports this finding.

        On the existing record, the children primarily resided with defendant and she was the
parent to whom the children most naturally looked to for “guidance, discipline, the necessities of
life, and parental comfort.” See MCL 722.27(1)(c). Therefore, the trial court’s finding that the
established custodial environment was with defendant was not against the great weight of the
evidence.2 Accordingly, to succeed on his motion, plaintiff was required to prove, by clear and
convincing evidence, that it was in the best interests of the children to award him custody. MCL
722.27(1)(c). Thus, the trial court did not err in imposing the heightened burden of proof.



2
  Plaintiff argues that he had the children for the entire summer in 2017, shortly before he filed
his filiation and custody motion; however, defendant testified that plaintiff was supposed to have
the children for only half the summer and that he ignored her efforts to contact him. According
to defendant, when plaintiff finally responded, he told her, “Well, you’ve had them for the last
four years; now it’s my turn and I’m going to enroll them in school down here, and you can just
‘f’ off.” We note that the record is replete with immature, offensive, and questionable behavior
by plaintiff. Indeed, in the trial court’s opinion, it warned that the issue of joint legal custody
was close and would end “[i]f any further abusive communications or threatening behaviors
occur[red.]”

                                                -3-
                                 C. BEST-INTEREST FACTORS

       In McRoberts v Ferguson, 322 Mich App 125, 134; 910 NW2d 721 (2017), this Court
observed:

               In this case, the trial court found that an established custodial environment
       existed with plaintiff and therefore correctly concluded that defendant had the
       burden of proving by clear and convincing evidence that modifying the custodial
       environment was in the child’s best interests. MCL 722.23 defines the best
       interests of the child as the sum total of the factors set forth in MCL 722.23(a)-(l),
       which are to be considered, evaluated, and determined by the court. In child
       custody cases, the family court must consider all the factors delineated in MCL
       722.23 and explicitly state its findings and conclusions with respect to each of
       them. 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.
       [Citations, quotation marks, and ellipsis omitted.]

         In this case, the trial court found that six of the factors—MCL 722.23(a), (c), (d), (h), (k),
and (l)—favored defendant, while the rest—MCL 722.23(b), (e), (f), (g), (i), (j)—favored neither
party. Plaintiff asserts that the trial court should have found that seven of the factors favored him
and that five were neutral. We conclude that the evidence did not clearly preponderate against
the trial court’s findings on the statutory best-interest factors. McRoberts, 322 Mich App at 135.
And the evidence fell woefully short of proving by clear and convincing evidence that physical
custody of the children should be awarded to plaintiff.

       MCL 722.23(a) concerns “[t]he love, affection, and other emotional ties existing between
the parties involved and the child.” The trial court found that this factor slightly favored
defendant by virtue of the fact that the children spent considerably more time with defendant
than with plaintiff. As previously discussed, the record adequately supported the finding that the
children resided primarily with defendant and looked to her as their day-to-day caregiver and to
meet their emotional needs. In contrast, plaintiff was not involved much during the children’s
early years, and, during the later years, while plaintiff became more involved, the children
continued to look to defendant for love and affection. The trial court’s ruling was not against the
great weight of the evidence.

         MCL 7.22.23(b) regards “[t]he 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.” The trial court found that this factor favored neither plaintiff
nor defendant, and plaintiff does not challenge this finding on appeal.

        MCL 722.23(c) addresses “[t]he 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.” The
trial court found that this factor favored defendant because defendant’s work history was far
more stable and extended. Plaintiff argues that this factor should have favored him given that he
had his own contracting company, worked for his girlfriend’s grandfather, and had excellent
medical coverage through his tribal affiliation. The trial court, however, found that plaintiff’s
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work history was “somewhat sketchy,” inconsistent, and unstable, and we agree with this
assessment.     Defendant testified that she had worked when the children were first born and
that she had worked for three years as a waitress, earning $14,000 in 2017. Plaintiff did not
refute this evidence. In contrast, the record revealed that plaintiff barely worked until late 2016,
hardly supported defendant or the children financially, failed to pay child support, and had only
recently started his own contracting business doing general labor. Plaintiff’s main client was his
girlfriend’s grandfather, and there was no indication that plaintiff had other clients. The record
also shows that plaintiff had no health issues preventing him from working. The trial court’s
finding on factor (c) was not against the great weight of the evidence.

        MCL 722.23(d) regards “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” The trial court found that this
factor favored defendant because the children had resided in their current living situation for
approximately one year, whereas plaintiff had moved a couple of times during that same period.
Defendant testified that she was living in a house with her boyfriend, his mother, and the parties’
children. This home was leased, and defendant had been living there for almost one year. There
was no indication that defendant had lived anywhere except in, or at least very close to,
Cheboygan County. In contrast, the record showed that plaintiff had “couch-surfed” for
approximately two years, had moved several times between 2015 and 2017, and had just recently
leased his current residence. This evidence reflected that the children had lived in a more stable
and satisfactory environment with defendant and that this continuity favored defendant. The trial
court’s finding on factor (d) was not against the great weight of the evidence.

        MCL 722.23(e) concerns “[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes.” The trial court found that this factor favored neither party because
plaintiff and defendant had been living with their respective significant others for long periods of
time. Plaintiff appears to argue that because defendant lived with her boyfriend and his mother,
this diminished defendant’s situation to such a degree that the factor should have favored
plaintiff. However, plaintiff presents no support for this position, and we find it to be meritless.
The trial court’s finding on factor (e) was not against the great weight of the evidence.

        MCL 722.23(f) addresses “[t]he moral fitness of the parties involved.” The trial court
found that this factor favored neither plaintiff nor defendant. Plaintiff argues that this factor
should have favored him because, while he presented evidence that he did not drink or smoke his
medicinal marijuana in front of the children, there was evidence that defendant and her boyfriend
had once smoked recreational marijuana while the children were in the home. Although the trial
court did not explicitly articulate its findings, it can be inferred that the trial court did not find the
evidence cited by plaintiff to be dispositive regarding the parties’ moral fitness. The trial court’s
finding on factor (f) was not against the great weight of the evidence.

        MCL 722.23(h)3 regards “[t]he home, school, and community record of the child.” The
trial court found that this factor favored defendant because she had made all the arrangements to
enroll the children in their preschool program. Plaintiff testified that he had only limited contact


3
    Plaintiff does not challenge the trial court’s ruling under MCL 722.23(g).

                                                   -5-
with the children’s teachers. Given that defendant was the children’s primary caregiver and
arranged for their schooling, and considering plaintiff’s admitted minimal involvement in the
children’s education, the trial court’s finding on factor (h) was not against the great weight of the
evidence.

        MCL 722.23(j)4 concerns “[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 or the child and the parents.” The trial court found that this factor favored neither plaintiff
nor defendant because, in spite of the dysfunctional relationship between the two, they had
mostly managed to successfully maintain plaintiff’s standard parenting-time schedule from a
long distance.

        Plaintiff points to his Exhibit A, which contained text messages between himself and
defendant allegedly showing that defendant often refused to respond to his messages. Plaintiff
also notes that defendant did not contact him about EG’s burn accident until five days after it
occurred. However, plaintiff mainly enjoyed standard parenting time, and plaintiff presented no
evidence to show that defendant had interfered with plaintiff’s parenting time. Plaintiff’s
evidence merely revealed tension and distrust between the parties, and not that defendant was
attempting to undermine plaintiff’s relationship with the children. The trial court’s finding on
factor (j) was not against the great weight of the evidence.

        MCL 722.23(k) addresses “[d]omestic violence, regardless of whether the violence was
directed against or witnessed by the child.” The trial court ruled that this factor favored
defendant because the court found credible defendant’s testimony regarding one specific incident
of domestic violence. Defendant testified that plaintiff “would get angry and punch holes in the
walls or come home and flip tables and put holes in the ceiling, bust lights.” She also testified
that plaintiff had assaulted her once, and she vividly described the occurrence, which included
plaintiff grabbing her by the throat, picking her up, flipping her around, slamming her to the
ground, holding her throat to the ground, and threatening to “f**king kill” her. Plaintiff himself
admitted that when he and defendant had lived together he sometimes punched the walls in
anger. It is true, as plaintiff notes, that other witnesses testified that they had never observed
incidents of anger or domestic violence perpetrated by plaintiff. However, this does not mean
that plaintiff had not engaged in violent behavior with defendant, and we defer to the trial court
with respect to witness credibility. The trial court’s finding on factor (k) was not against the
great weight of the evidence.

        MCL 722.23(l) regards “[a]ny other factor considered by the court to be relevant to a
particular child custody dispute.” The trial court found that this factor favored defendant for a
number of reasons. First, the trial court found it concerning that plaintiff, although healthy with
no physical limitations, received little to no earnings from 2014 to 2016. The trial court further
found that failing to provide any financial support to the family was indicative of a lack of
parental commitment to the children’s welfare. The trial court also found that plaintiff may have
failed to disclose income because doing so was inconsistent with tax filings.


4
    Plaintiff does not challenge the trial court’s finding in regard to MCL 722.23(i).

                                                   -6-
        Plaintiff testified that he did not work after EG was born and that he hardly provided any
financial support to defendant. Additionally, plaintiff initially testified that he had earned about
$1200 per month working odd jobs while living in Sterling Heights; however, later, when shown
his tax returns for 2015, he testified, consistently with the returns, that he had earned only $1500
for the entire year. Furthermore, plaintiff earned approximately $4700 in 2016, and he testified
that he did not begin working until either September or October 2016 when his driver’s license
was reinstated. Plaintiff also confirmed that he had paid no child support. The trial court’s
finding that plaintiff failed to support defendant or the children without adequate reason is not
against the great weight of the evidence.

        Further, the trial court found plaintiff’s volatile temper to be very concerning. Evidence
was presented that plaintiff had sent offensive and threatening messages to defendant’s
boyfriend, and defendant testified that she feared communicating with plaintiff. Additionally,
defendant described an incident that occurred at the hospital when EG was being treated for his
burns. Plaintiff became very upset, used profanity against defendant, and told her that he would
call the police and have her put in jail for the accident. A police officer instructed plaintiff to
leave, and the officer later escorted defendant out of the hospital to ensure that she made it to her
vehicle safely. Defendant testified that she had been afraid that plaintiff might do something to
her after she left the hospital property. Furthermore, she explained that the reason for her delay
in contacting plaintiff about the accident was her fear of how he would react.

       Third, the trial court found that the significant amount of polite text messages plaintiff
compiled for the court did not offset the other offensive communications he had with defendant
and her boyfriend. The trial court also found it unlikely that these were the only instances of
improper conduct. Furthermore, the trial court found that plaintiff appeared unaware of how
much his improper behavior negatively affected his relationship with defendant.

        In sum, the trial court’s findings with respect to each of the best-interest factors were not
against the great weight of the evidence, because the evidence did not clearly preponderate in the
opposite direction.

                                       III. CONCLUSION

        The trial court’s award of sole physical custody of the children to defendant did not
constitute a ruling so palpably and grossly violative of fact and logic that it evidenced a
perversity of will, a defiance of judgment, or the exercise of passion or bias, i.e., there was no
abuse of discretion.

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


                                                              /s/ William B. Murphy
                                                              /s/ David H. Sawyer
                                                              /s/ Brock A. Swartzle



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