            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



NATASHA CHEYNE,                                                     UNPUBLISHED
                                                                    May 2, 2019
               Plaintiff-Appellee,

v                                                                   No. 345501
                                                                    Alger Circuit Court
KENNETH LEMON, JR.,                                                 Family Division
                                                                    LC No. 14-007383-DS
               Defendant-Appellant.


Before: BECKERING, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

        Defendant appeals as of right the trial court’s order denying his motion for a change of
custody and parenting time and retaining the minor child’s primary physical custody with
plaintiff. We affirm.

        Plaintiff and defendant were never married, but co-habitated and had one child during
their nearly three-year relationship. When the child was 2 years old in 2014, petitioner moved
with the child from the parties’ shared residence in Jackson County and relocated to Alger
County. Thereafter, petitioner initiated an action seeking support for the parties’ minor child. In
December of 2014, the trial court entered a judgment of parenting time and support granting the
parties joint legal custody of the child, with plaintiff having sole physical custody and defendant
having parenting time for one week each month.

        In 2017, plaintiff filed a motion requesting that the parenting-time schedule be modified
to allow defendant one weekend per month and one week per month during the summer months
because of the child’s upcoming enrollment in school and his “emotional distress” allegedly
caused by the week-long visitations. Thereafter, defendant filed a competing motion to modify
custody and parenting time seeking full physical custody of the minor child. Among the reasons
cited for defendant’s request for change of custody was that plaintiff initiated false reports with
Children’s Protective Services (CPS), raising allegations of abuse and neglect, sexual assault,
improper supervision, and more by members of defendant’s household upon the minor child.

        In September of 2017, a referee hearing was held on both motions. The referee opined
that there was proper cause and a change in circumstances warranting a review of the custody
arrangement; however, after conducting a best-interests analysis, he ultimately concluded that
defendant did not meet his burden of establishing by clear and convincing evidence that a change
in custody was in the child’s best interests. Further, he indicated that because pre-kindergarten
attendance was not mandatory, both motions should be denied. Defendant objected to the
recommendation, but thereafter agreed to maintain the prior parenting-time provisions until
further order of the court.

        In May of 2018, defendant filed an amended motion for modification of custody and
parenting time because of the repeated allegedly false CPS reports and investigations and on the
basis that the child would require permanency once he began attending school. At a subsequent
hearing, the trial court heard testimony by the parties and a CPS witness, reviewed the record,
and considered the exhibits presented before concluding that defendant had failed to meet his
burden of establishing by clear and convincing evidence that a change in custody was warranted.

       On appeal, defendant asserts that the trial court’s conclusion that plaintiff’s use of
innocent agents to file CPS complaints against defendant was not sufficient to find proper cause
or change of circumstances to change the existing order was clearly erroneous. We disagree.

        We review the trial court’s decision regarding whether a party has demonstrated proper
cause or a change of circumstances warranting a change of custody to determine whether it is
against the great weight of the evidence. Corporan v Henton, 282 Mich App 599, 605; 766
NW2d 903 (2009). A finding is against the great weight of the evidence if the evidence clearly
preponderates in the opposite direction. Id. We review a trial court’s decision on whether to
change custody for an abuse of discretion. Yachcik v Yachcik, 319 Mich App 24, 31; 900 NW2d
113 (2017). An abuse of discretion exists in child custody cases when the result is “so palpably
and grossly violative of fact and logic that it evidences . . . perversity of will,” a defiance of
judgment, or the exercise of passion or bias. Shulick v Richards, 273 Mich App 320, 323-325;
729 NW2d 533 (2006), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW 2d 810
(1959).

        The Child Custody Act of 1970, MCL 722.21 et seq., governs child custody disputes
between parents. Mauro v Mauro, 196 Mich App 1, 4; 492 NW2d 758 (1992). A custody award
may be modified only upon a showing of proper cause or a change of circumstances establishing
that the modification is in the child’s best interests. MCL 722.27(1)(c); Lieberman v Orr, 319
Mich App 68, 81; 900 NW2d 130 (2017). To constitute proper cause meriting consideration of a
custody change, there must be appropriate grounds that have or could have a significant impact
on the child’s life, such that a reevaluation of custody should be made. Vodvarka v Grasmeyer,
259 Mich App 499, 511; 675 NW2d 847 (2003). “To establish a ‘change of circumstances,’ a
movant must prove that, since the entry of the last custody order, the conditions surrounding
custody of the child, which have or could have a significant effect on the child’s well-being, have
materially changed.” Id. at 513 (emphasis in original). The determination that a change of
circumstances has occurred should generally be made by considering the relevant statutory best-
interest factors along with the facts presented. Brausch v Brausch, 283 Mich App 339, 355; 770
NW2d 77 (2009).

      Once proper cause or a change of circumstances is shown, the trial court must determine
whether the proposed change would modify the child’s established custodial environment.

                                                -2-
Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). The purpose of this framework is to
“erect a barrier against removal of a child from an established custodial environment and to
minimize unwarranted and disruptive changes of custody orders.” Vodvarka, 259 Mich App at
509 (quotation marks and citation omitted). When a modification of custody would change the
established custodial environment of a child, the moving party must show by clear and
convincing evidence that the change is in the child’s best interests. MCL 722.27(1)(c). To be
clear and convincing, the evidence must produce in the trier of fact a firm conviction as to the
truth of the precise facts at issue. Hunter v Hunter, 484 Mich 247, 265; 771 NW2d 694 (2009).
Above all, custody disputes are to be resolved in the child’s best interests, as measured by the
factors set forth in MCL 722.23. Eldred v Ziny, 246 Mich App 142, 150; 631 NW2d 748 (2001).
“This standard cannot be abrogated, even in fairness to the parties.” Soumis v Soumis, 218 Mich
App 27, 34; 553 NW2d 619 (1996). The best-interest factors set forth in MCL 722.23 are:

               (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. . . .

               (k) Domestic violence, regardless of whether the violence was directed
       against or witnessed by the child.


                                               -3-
               (l) Any other factor considered by the court to be relevant to a particular
       child custody dispute.

“A court need not give equal weight to all the factors, but may consider the relative weight of the
factors as appropriate to the circumstances.” Sinicropi v Mazurek, 273 Mich App 149, 184; 729
NW2d 256 (2006). A finding that the statutory factors weigh equally between the parties does
not preclude satisfaction of the burden of proof in a motion to modify custody. Heid v
Aaasulewski (After Remand), 209 Mich App 587, 593; 532 NW2d 205 (1995).

        As appellee correctly notes, defendant’s assertion that the trial court erred by failing to
find proper cause or a change in circumstances is factually incorrect because the record clearly
indicates that both the FOC referee, who oversaw the first hearing on defendant’s motion to
modify custody and parenting time, and the trial court, during its de novo review, concluded that
proper cause or a change of circumstances existed to warrant review of the parties’ custody
arrangement. More specifically, in his opinion and recommendation, the referee opined that
there had been significant changes since the December 2014 order, including plaintiff’s move to
Alger County, plaintiff’s change of employment, and plaintiff’s home environment. Defendant
had also experienced a motorcycle accident that left him unable to work, had remarried, and had
established a living environment that included his new wife, defendant’s son, and defendant’s
wife’s siblings. Additionally, the child was about to begin school, and the prior order did not
make his regular school attendance feasible.

        Further, the trial court recognized that because defendant’s prior objection to the referee’s
recommendation had not been settled by any prior orders, its review of the record was de novo.
The trial court indicated that it was required to find a significant change of circumstances before
it would consider the best-interest factors. The trial court noted that this determination was
previously made, and “I’m remaking that finding now.” Only then did the trial court proceed
with the analysis of the best-interest factors.

        Next, to the extent that defendant suggests that plaintiff’s alleged use of innocent agents
to file multiple CPS reports against him was not given sufficient weight and should have
warranted a change in custody, we disagree. As noted above, “[a] court need not give equal
weight to all the factors, but may consider the relative weight of the factors as appropriate to the
circumstances.” Sinicropi, 273 Mich App at 184. The trial court did so here.

       At the hearing, defendant testified that at least four CPS complaints were filed against
him, and that three of those complaints involved sexual abuse allegations related to the child.
Defendant’s counsel argued that CPS investigations were being filed before court hearings and
being filed through agencies as part of plaintiff’s effort to keep the child from visitation.
Additionally, one of the CPS investigators charged with investigating an April 2018 complaint,
which alleged that defendant’s wife struck the child 14 times, testified that she felt that there
might have been some coaching occurring with the child because his answers were inconsistent.
A copy of that CPS investigation report was presented to the trial court.




                                                -4-
        Plaintiff testified at the hearing that she had not made any of the claims to CPS. She
indicated that the reports were made by the child’s primary care physician, an emergency room
doctor, a police officer, the child’s psychologist, and an unknown person “downstate.”1 Plaintiff
acknowledged that she took the child to the medical appointments and spoke with the police
officer. Plaintiff indicated that she was unaware of the psychologist’s report to CPS until the
investigation was opened and CPS arrived at her home. Plaintiff denied that she ever told the
child what to say to CPS. In fact, plaintiff opined that the child was making allegations to avoid
going to parenting time, and that “he was making some of the stuff up.” Plaintiff also testified
that she did not believe the child’s report that defendant’s wife struck him.

        The trial court informed the parties that it had read and considered the CPS report prior to
rendering its decision. In its analysis of best-interest factor (l), the trial court noted that repeated
CPS allegations “certainly” favored defendant because none were substantiated. The trial court
showed concern for the minor’s dishonesty during his interview, and assigned “more
responsibility” to plaintiff for triggering the investigations, but could not place responsibility on
her for fabricating the information going into the investigations. Ultimately, the trial court
concluded that for factor (l), “more things lean towards [defendant],” but there were also aspects
that supported the child’s current home environment. Ultimately, the trial court concluded that
the parties were equal “on almost all factors.” Plaintiff was favored in factor (d) and some
aspects of factor (l), and defendant was slightly favored on factor (e) and some aspects of factor
(l). The trial court indicated that after consideration of the factors, defendant ultimately failed to
convince the court by clear and convincing evidence that a change in custody was in the child’s
best interests. It is clear from the record that the trial court adequately considered and addressed
the CPS allegations and investigations in reaching its conclusions.

        Finally, defendant also asserts that there is ample evidence that plaintiff’s actions could
have a significant impact on the child’s well being. However, this assertion is unsupported by
the record. While the testimony revealed some difficulty during parenting-time exchanges,
overall, there was no evidence presented that the child’s well-being was at risk. Indeed,
defendant testified about how much the child enjoyed spending time in his home, playing with
the other children in the home, enjoying karate, and also enjoying family trips to the waterpark.
Accordingly, by all accounts, the child continued to have positive parenting-time visits with
defendant despite any alleged actions by the plaintiff.

       In sum, the trial court’s findings were not against the great weight of the evidence,
because the facts do not “clearly preponderate in the opposite direction.” Shade, 291 Mich App




1
    Plaintiff testified that CPS would not tell her who filed the complaint downstate.


                                                  -5-
at 21. Therefore, the trial court’s order denying defendant’s motion to modify custody and
parenting time is not “so palpably and grossly violative of fact and logic that it evidences a
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Id.

       Affirmed.




                                                         /s/ Jane M. Beckering
                                                         /s/ Deborah A. Servitto
                                                         /s/ Cynthia Diane Stephens




                                             -6-
