Timothy Hallin v. Cassie a Brunell ( 2022 )

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
TIMOTHY HALLIN, UNPUBLISHED
January 27, 2022
Plaintiff-Appellee,
v No. 358126
Livingston Circuit Court
CASSIE A. BRUNELL, Family Division
LC No. 13-047851-DC
Defendant-Appellant.
Before: O’BRIEN, P.J., and STEPHENS and LETICA, JJ.
PER CURIAM.
Defendant, Cassie A. Brunell, appeals by right the order denying her objection to the Friend
of the Court referee’s recommendation to deny defendant’s motion to modify parenting time.
Defendant also challenges the circuit court’s order denying her motion to modify parenting time.
Defendant argues that the circuit court abused its discretion by finding that she had not established
proper cause or a change in circumstances that justified a modification of parenting time, and
argues that the circuit court erred by failing to hold an evidentiary hearing on the matter. We
affirm.
I. BACKGROUND
Defendant and plaintiff were never married, but had one child together, LH. In 2013, the
court entered a consent order granting defendant primary physical custody of LH. Defendant then
remarried and had another child, and she lived in a two-bedroom apartment with her husband, her
three children, and her stepdaughter. In 2014, plaintiff filed an emergency motion to change
custody because defendant had been arrested for an incident of domestic violence against her
husband while he was holding their child. The parties presented evidence that police had been
called multiple times between 2013 and 2014 for domestic violence incidents between defendant
and her husband, and defendant was usually, but not always, the perpetrator. Both defendant and
plaintiff had histories of substance abuse and drunk driving, and defendant had a sporadic history
of mental health treatment. Child Protective Services (CPS) opened an investigation regarding
defendant’s most recent incident of domestic violence, and defendant voluntarily participated in
services offered by CPS. The referee initially found that plaintiff had not shown that it was in
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LH’s best interests to change her custodial environment, and plaintiff filed an objection to the
referee’s recommendation. The circuit court judge disagreed with the referee’s recommendation
and awarded plaintiff physical custody of LH.
In 2021, defendant filed a motion to change parenting time, arguing that there had been
proper cause and a change in circumstances that justified modifying the current parenting time
order because defendant was in a more stable situation, was getting married, was having another
child, was moving into a new home with her husband as homeowners, and had been exercising
parenting time outside of the parameters of the previous order. The circuit court held a hearing at
which the parties’ counsel presented oral argument, and the referee issued a report recommending
that defendant’s motion be denied. The referee found that although defendant had changed her
own life circumstances, she had not established that there had been any change in circumstances
in the child’s life that would warrant a modification of parenting time. The referee also stated that
plaintiff’s allowing defendant to exercise additional parenting time outside of the court order could
not form the basis for a modification of parenting time because that would violate public policy by
discouraging parents to consent to additional parenting time. Defendant filed an objection to the
referee’s recommendation, and the circuit court judge agreed with the referee, denied defendant’s
objection, and denied defendant’s motion to modify parenting time.
II. ANALYSIS
We review for abuse of discretion a trial court’s decision whether to hold an evidentiary
hearing. Williams v Williams, 214 Mich App 391, 399; 542 NW2d 892 (1995). “All custody
orders must be affirmed on appeal unless the circuit court’s findings were against the great weight
of the evidence, the circuit court committed a palpable abuse of discretion, or the circuit court
made a clear legal error on a major issue.” Pierron v Pierron, 282 Mich App 222, 242; 765 NW2d
345 (2009), aff’d 486 Mich 81 (2010), citing MCL 722.28. “An abuse of discretion with regard
to a custody issue occurs 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.” Mitchell v Mitchell, 296 Mich App 513, 522; 823 NW2d 153 (2012) (quotation marks
and citation omitted).
The great weight of the evidence standard applies to all findings of fact. A trial
court’s findings regarding the existence of an established custodial environment
and regarding each custody factor should be affirmed unless the evidence clearly
preponderates in the opposite direction. An abuse of discretion standard applies to
the trial court’s discretionary rulings such as custody decisions. Questions of law
are reviewed for clear legal error. A trial court commits clear legal error when it
incorrectly chooses, interprets, or applies the law. [Corporan v Henton, 282 Mich
App 599, 605; 766 NW2d 903 (2009) (quotation marks and citation omitted).]
A. CHANGE IN CIRCUMSTANCES
Defendant argues that the circuit court abused its discretion by denying defendant’s
objection to the referee recommendation and denying defendant’s motion to modify parenting
time. We disagree.
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Under MCL 722.27(1)(c), a trial court may “modify or amend its previous judgments or
orders for proper cause shown or because of change of circumstances . . . .” “[I]f the proposed
change would not modify the established custodial environment of the child, the burden is on the
parent proposing the change to establish, by a preponderance of the evidence, that the change is in
the child’s best interests.” Pierron v Pierron, 486 Mich 81, 93; 782 NW2d 480 (2010). Normal
life changes that occur with a minor child, such a child’s increased involvement in social and
extracurricular activities, may constitute proper cause or a change of circumstances sufficient to
modify parenting time, “so long as the modification in parenting time does not affect the
established custodial environment.” Shade v Wright, 291 Mich App 17, 29-31; 805 NW2d 1
(2010). The relevant inquiry for determining whether there is proper cause or a change of
circumstances for a modification of parenting time is whether the current order governing
parenting time remains in the child’s best interests. Kaeb v Kaeb, 309 Mich App 556, 571-572;
873 NW2d 319 (2015).
Defendant argues that there was a change in circumstances because the conditions that
existed at the time the 2015 order was entered no longer existed. When the circuit court entered
the 2015 order, the court was concerned, in part, with defendant’s substance abuse and repeated
incidents of domestic violence. There is no indication that defendant had changed her
circumstances regarding her substance abuse. In fact, defendant did not deny the allegations that
she continued to drink alcohol and had not reinstated her driver’s license. Regarding the concerns
about defendant’s pattern of domestic violence, defendant had divorced from the husband she had
in 2014, with whom she had frequent domestic altercations. However, defendant had remarried,
and there was no indication of how defendant’s new husband treated her or the children. Therefore,
defendant has not shown how her relationship with her new husband positively changed the
circumstances in LH’s life. Defendant also argues that her marriage was a change in circumstances
because she and her husband owned a house and were having a new child. By contrast, when the
circuit court entered the 2015 order, defendant shared a two-bedroom apartment with four children
and her husband. However, defendant has not even alleged, much less provided evidence, that her
new home has any additional room, particularly when she is having an additional child. Further,
the fact that defendant is having another child is not a change in circumstances because defendant
always had custody of her other daughters. Therefore, defendant has not shown that her new home
or child is a change in circumstances that warrants a change in parenting time. In short, while
defendant made allegations of changes in her life that might warrant revisiting a parenting-time
order,1 she has the burden to present evidence of such changes. Pierron, 486 Mich at 93. She has
failed to carry that burden in this case because she has not presented any evidence whatsoever, and
has instead relied on her own conjecture and arguments.
Defendant also argues that she showed proper cause and change in circumstances that
would justify a modification of parenting time because defendant had allowed her to exercise
1
See Kaeb, 309 Mich App at 571 (holding that “[i]t is evident that even normal changes to the
lives of the parties affected by a parenting-time order may so alter the circumstances attending the
initial imposition of a [parenting-time] condition that a trial court would be justified in revisiting
the propriety of the [parenting-time] condition,” and such “normal changes” include “changes in
the parties’ behavior, status, or living conditions . . .”).
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parenting time outside of what was allotted under the 2015 order. However, it is not clear how
frequently plaintiff allowed defendant to exercise additional parenting time outside of the court
order. Once again, defendant failed to present any evidence regarding this topic. There is also no
indication that defendant’s limited additional parenting time was a change in circumstances in
LH’s life because defendant had been regularly exercising parenting time pursuant to the circuit
court order since 2015. Further, allowing a voluntary increase in parenting time to serve as the
basis for a permanent modification in parenting time would go against public policy because it
would discourage custodial parents from permitting a noncustodial parent greater parenting time
than granted by court order. Therefore, defendant has not shown that the circuit court abused its
discretion by denying her objection to the referee recommendation and denying her motion to
change parenting time. Considering the complete lack of evidence provided by defendant, we
certainly have not been provided with any reason to conclude the trial court’s decision that
defendant did not meet her burden of proof was “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.”
Mitchell, 296 Mich App at 522 (quotation marks and citation omitted).
B. EVIDENTIARY HEARING
Defendant argues that the circuit court erred by failing to hold an evidentiary hearing to
determine whether defendant could show proper cause or a change in circumstances that warranted
a modification of parenting time. We disagree.2
Under MCL 722.72(1)(c), a trial court may modify or amend its previous judgments or
orders only upon proper cause shown or because of change of circumstances. A noncustodial
parent is entitled to an evidentiary hearing regarding a change in custody only if he or she can first
2
Although not raised by either party, we note defendant, during trial court proceedings, never
requested an evidentiary hearing regarding the issue of whether proper cause or a change of
circumstances existed warranting a review of the parenting-time order. We have reviewed
defendant’s motion to change parenting time and the entire transcript and found no instance where
defendant sought to admit evidence and was rebuffed. Instead, defendant, despite bearing the
burden of proof, seemed content to rely on arguments and allegations made by attorneys. The
record of the hearing did not show any attempt by defendant to be sworn in and to provide
testimony. Moreover, defendant does not suggest any reason she was unable to obtain and admit
documentary evidence supporting her assertions. For example, defendant could have admitted an
affidavit containing her factual claims, provided an affidavit from her new husband about their
living conditions and relationship, obtained and admitted affidavits from family members or an
Alcoholics Anonymous sponsor about her substance abuse issues, or submitted documentary
evidence about the size of her new home or lack of interactions with police related to domestic
violence. Defendant did none of these things, did not attempt to do them, and now seeks to use
her own failure as an appellate parachute. We refuse, as we must, to allow her the opportunity to
do so. See Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352 (2014) (quotation
marks and citation omitted) (“A party may not claim as error on appeal an issue that the party
deemed proper in the trial court because doing so would permit the party to harbor error as an
appellate parachute.”).
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demonstrate, as a threshold matter, either proper cause or a change of circumstances. Corporan,
282 Mich App at 603-604; Rossow v Aranda, 206 Mich App 456, 458; 522 NW2d 874 (1994). A
trial court is not required to hold an evidentiary hearing to determine whether there is proper cause
or a change of circumstances. Vodvarka v Grasmeyer, 259 Mich App 499, 512; 675 NW2d 847
(2003). Further, in this case, defendant moved to modify the parenting time order, not to change
the child’s custodial environment. No caselaw suggests that the trial court must conduct an
evidentiary hearing to determine a change in parenting time. Therefore, the circuit court was not
required to hold an evidentiary hearing to determine whether defendant established proper cause
or a change of circumstances, especially in light of defendant’s failure to request such a hearing or
to make any attempt at admitting evidence in any way.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Cynthia Diane Stephens
/s/ Anica Letica
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