Bridget Messaros v. Matthew Messaros ( 2021 )

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
BRIDGET MESSAROS, UNPUBLISHED
November 9, 2021
Plaintiff-Appellant,
v Nos. 356567; 357467
Shiawassee Circuit Court
MATTHEW MESSAROS, LC No. 2017-001009-DM
Defendant-Appellee.
Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.
PER CURIAM.
In Docket No. 356567, plaintiff appeals as of right an order modifying the parenting-time
arrangement for the parties’ two children, LM and EM. On appeal, plaintiff argues that the trial
court erred by finding there was an established custodial environment with both parties, and further
erred by using a preponderance-of-the-evidence burden of proof. Plaintiff also argues that the trial
court erred in its best-interests determination. In Docket No. 357467, plaintiff appeals as of right
an order denying her request that defendant pay her attorney fees. Plaintiff argues that the trial
court erred when it declined to award her attorney fees because she demonstrated her inability to
afford the fees. We affirm in both appeals.
I. FACTUAL BACKGROUND
In 2018, the parties entered into a consent judgment of divorce, agreeing to share legal
custody of their children. With regard to physical custody, plaintiff had the children a majority of
the time, although defendant was given substantial parenting time. The judgment provided for a
step-up in defendant’s parenting time of EM (the younger sibling) as she grew a bit older. When
EM turned two years old, defendant’s parenting time for EM merged with that of LM, and, under
the consent judgment, defendant had parenting time for both children for Tuesday overnights, for
overnights every other weekend, and for a few hours on Thursday afternoons. Defendant later
sought a change to this arrangement, asserting, among other things, that plaintiff was speaking ill
of him in the presence of their children. He sought either sole physical custody or an equal, 50/50
parenting-time arrangement.
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A multiday evidentiary hearing took place before a referee. Evidence showed that both
parents had good, flexible jobs, appropriate homes, and were closely involved in the children’s
lives. Testimony also revealed that plaintiff held an extreme amount of rancor toward defendant.
The referee, and later the circuit court—after a de novo hearing—concluded that a change in
parenting time was warranted on the basis that plaintiff was failing to foster a close relationship
between defendant and the children. The referee, and later the circuit court, ordered a 50/50
parenting-time arrangement. The circuit court also denied plaintiff’s request for attorney fees.
This appeal followed.
II. STANDARDS OF REVIEW
MCL 722.28 states:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, 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.
As stated in Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003):
[This Court] appl[ies] three standards of review in custody cases. 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. [Quotation marks and citations
omitted.]
This Court reviews for an abuse of discretion a trial court’s decision regarding a request
for attorney fees. Richards v Richards, 310 Mich App 683, 699; 874 NW2d 704 (2015). “An
abuse of discretion occurs when the result falls outside the range of principled outcomes.” Id.III. ESTABLISHED CUSTODIAL ENVIRONMENT
Plaintiff contends that the circuit court erred in analyzing certain issues relating to the
children’s established custodial environment (ECE). We disagree.
In general, a modification to a parenting-time or custody order may be initiated only if the
party seeking the modification shows that it is justified by proper cause or a change of
circumstances. MCL 722.27(1)(c); Marik v Marik (On Remand), 325 Mich App 353, 367; 925
NW2d 885 (2018); Vodvarka, 259 Mich App at 512-513. This requirement serves as a type of
“threshold” for commencing the proceedings. See Corporan v Henton, 282 Mich App 599, 609;
766 NW2d 903 (2009). However, caselaw indicates that the meaning of the phrase “proper cause
or . . . change of circumstances,” see MCL 722.27(1)(c), differs depending on whether the
modification in question amounts to a change in custody or is “merely” a change in parenting time.
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In the context of a change of custody, “proper cause” can be established by a preponderance
of the evidence of an appropriate ground that is “relevant to at least one of the twelve statutory
best-interest factors[, MCL 722.23(a)-(l),] and [is] . . . of such magnitude to have a significant
effect on the child’s well-being.” Vodvarka, 259 Mich App at 512. “[P]roper 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.” Id. at 511. To
establish a “change of circumstances” sufficient to initiate the modification of custody, the moving
party “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. “[T]he evidence must demonstrate something more than the normal life
changes (both good and bad) that occur during the life of a child, 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. “This too will be a determination made on the basis of the facts of each case, with
the relevance of the facts presented being gauged by the statutory best[-]interest factors.” Id.
at 514.
These Vodvarka standards apply where a requested modification of parenting time will
result in a change in the child’s ECE. Marik, 325 Mich App at 367; Shade v Wright, 291 Mich
App 17, 27; 805 NW2d 1 (2010). MCL 722.27(1)(c) explains that “[t]he 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.”
Different standards apply to requests for modification of parenting time. Shade, 291 Mich
App at 25, 27-28. Such requests are subject to “a lesser, more flexible, understanding of ‘proper
cause’ or ‘change in circumstances’ ” than the stricter Vodvarka framework. Marik, 325 Mich
App at 367-368 (quotation marks and citation omitted). The less-stringent standards apply if “the
request involves a change to the duration or frequency of parenting time[.]” Kaeb v Kaeb, 309
Mich App 556, 570; 873 NW2d 319 (2015). The Shade Court stated that “the very normal life
change factors that Vodvarka finds insufficient to justify a change in custodial environment are
precisely the types of considerations that trial courts should take into account in making
determinations regarding modification of parenting time.” Shade, 291 Mich App at 30.
The distinction rests on the differences regarding the focus of custody and parenting time.
“[T]he primary concern in child custody determinations is the stability of the child’s environment
and avoidance of unwarranted and disruptive custody changes, [and] the focus of parenting time
is to foster a strong relationship between the child and the child’s parents.” Id. at 28-29.
After the threshold showing of proper cause or a change of circumstances has been
established, the parent seeking the change in custody or parenting time must show that the change
is in the child’s best interests to succeed. MCL 722.27(1)(c). If the modification would change
the child’s ECE, the burden is on the moving parent to show by clear and convincing evidence that
the modification is in the child’s best interests. MCL 722.27(1)(c); Shade, 291 Mich App at 23.
If the proposed modification would not change the ECE, the parent seeking that modification must
“establish, by a preponderance of the evidence, that the change is in the child’s best interests.” Id.
To summarize, when considering an important decision affecting the
welfare of the child, the trial court must first determine whether the proposed
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change would modify the established custodial environment of that child. In
making this determination, it is the child’s standpoint, rather than that of the
parents, that is controlling. If the proposed change would modify the established
custodial environment of the child, then the burden is on the parent proposing the
change to establish, by clear and convincing evidence, that the change is in the
child’s best interests. Under such circumstances, the trial court must consider all
the best-interest factors because a case in which the proposed change would modify
the custodial environment is essentially a change-of-custody case. On the other
hand, if 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, 92-93; 782 NW2d 480 (2010).]
Accordingly, a determination of whether a change in custody or “merely” a change in
parenting time is at issue is necessary both to evaluate the issue of the “threshold” for initiating a
change in the child’s care and also to evaluate the applicable standard of proof in relation to the
best-interests factors.
Plaintiff contends that a change of custody occurred in the present case by way of the trial
court’s award of 50/50 custody. In support of her position, plaintiff relies on Lieberman v Orr,
319 Mich App 68; 900 NW2d 130 (2017). The Lieberman Court explained that if a proposed
parenting-time change “alters the established custodial environment, the proposal is essentially a
change in custody, and Vodvarka governs.” Id. at 84. In Lieberman, the defendant mother had
primary physical custody of the parties’ two children, and the parties shared joint legal custody.
Id. at 72. The parties had stipulated to a parenting-time schedule that gave the plaintiff 140
overnights a year and the defendant 225 overnights a year. Id. The plaintiff moved to modify
parenting time and change the children’s schools. Id. at 74. He requested “essentially that the
parties swap the current parenting time schedule.” Id. (quotation marks omitted). Advocating in
favor of application of the lesser standards in Shade, the plaintiff argued that the parties had joint
physical custody, that the swap would not materially change the amount of time the children spent
in each home, and that “both parents would continue to share in providing love, support, and
guidance of the minor children[.]” Id. at 75 (quotation marks omitted).
The defendant disagreed with the plaintiff’s positions that the parties had joint physical
custody and that the proposed change in parenting time would not materially change the amount
of time the children would spend in each parent’s household. Id. She argued that the plaintiff’s
proposed modifications would change the ECE and that his request was actually a motion to
change custody, “notwithstanding its label[.]” Id. The defendant argued that the Vodvarka
standards applied to the plaintiff’s request and that he had not shown proper cause or a change of
circumstances as discussed in Vodvarka. Id. at 76.
The trial court agreed with the plaintiff’s arguments. Id. It analyzed the best-interests
factors of MCL 722.23 under the preponderance-of-the-evidence standard. Id. It granted the
plaintiff’s motion, ultimately awarding the plaintiff 225 overnights a year and the defendant 140
overnights a year. Id. This was an 85-night increase in the plaintiff’s parenting time. Id.
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This Court considered whether the trial court applied the proper standard to the plaintiff’s
motion, and it concluded that, despite the label the plaintiff had given to his motion, his “proposed
modifications to parenting time effectively changed physical custody of the children from
defendant to plaintiff.” Id. at 84-85. It explained:
The parties’ judgment of divorce awarded legal custody to both parents, but
physical custody of the children to defendant; the judgment did not award the
parties joint physical custody. As noted, an award of physical custody primarily or
solely to one party typically entails a situation in which the children receive
physical care and supervision primarily from the parent awarded that status. That
is the case here. In accordance with the parties’ agreement that defendant would
be the children’s primary physical custodian, the children in the case at bar have
resided with and been cared for and supervised primarily by defendant since entry
of the judgment of divorce. Thus, it defies the plain meaning of the word “primary,”
as well as rudimentary mathematics, to say that reducing the primary custodian's
overnights with the children from 225, or nearly 62% of the calendar year, to 140,
or approximately 38% of the calendar year, does not change primary physical
custody. By proposing a reduction in the number of overnights the children spend
with defendant to a distinct minority of the year, plaintiff was proposing a change
in custody, regardless of the label he gave his motion. Accordingly, the proper
legal standard under which to review his motion was the more burdensome and
restrictive standard set forth in Vodvarka . . . .
Even if we were to accept plaintiff’s characterization of his motion as one
simply to modify parenting time and change schools, we nevertheless would hold
that the trial court committed error requiring reversal by finding, against the great
weight of the evidence, that plaintiff’s proposed change would not affect the
established custodial environment the children share with defendant and by not
analyzing the motion under the applicable legal framework set forth in Vodvarka.
[Lieberman, 319 Mich App at 85-86 (footnotes omitted).]
The Lieberman Court stated that while “minor modifications that leave a party’s parenting
time essentially intact do not change a child’s established custodial environment, significant
changes do.” Id. at 89-90 (citation omitted). Examples provided by the Lieberman Court of such
significant changes include a substantial reduction in the amount of time a parent was to spend
with a child, see Rains v Rains, 301 Mich App 313, 323-324; 836 NW2d 709 (2013), a
modification that changed a parent equally active in a child’s life to a “weekend parent,” see
Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008), and a change from year-round
near equal parenting time to one parent having parenting time during the school year and the other
having parenting time during the summer, see Brown v Loveman, 260 Mich App 576, 596; 680
NW2d 432 (2004). Lieberman, 319 Mich App at 89-90.
In the present case, in the period preceding the change in the parenting-time schedule,
defendant had 133 overnights a year with the children, on the basis of his Tuesday overnights and
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his every-other-weekend overnights.1 The 50/50 split resulted in 182.5 overnights for each party,
so plaintiff’s overnights were decreased by 49.5 each year and defendant’s were increased by 49.5.
In Lieberman, a change of 85 nights occurred. Id. at 90. The change in the present case is
considerably smaller than that in Lieberman.2 Moreover, in Lieberman, id. at 72, the
“children . . . live[d] with defendant during the school year, and plaintiff received parenting time
three weekends a month during the school year and all but the first and last weeks of the children’s
summer vacation.” The plaintiff had 140 overnights and the defendant had 225. Id. The plaintiff
sought to “swap” this schedule. Id. at 74. Significantly, this Court stated:
[C]entral to the children’s established custodial environment with defendant was
the support and guidance defendant gave and the material needs she met relative to
the children’s school attendance. Plaintiff’s proposed modification of parenting
time would not only substantially reduce the time defendant would spend with the
children, it would also change the character of her interaction with the children.
Therefore, the proposal significantly alters the children’s established custodial
environment with defendant. [Id. at 91-92.]
In the present case, as pointed out by the referee,3 defendant already had contact with the
children on seven out of every 14 days; every week, defendant saw the children at least two times,
and then spent every other weekend with them. Also, the evidence showed that plaintiff was
extremely involved in the children’s everyday schedules, but it showed that defendant was, as well.
As such, the present case is simply not comparable to Lieberman.
MCL 722.27(1)(c) explains that “[t]he 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.” There was ample evidence that
the children looked to both parents for these things and that defendant had been heavily involved
in the children’s care for their entire lives. In addition, even though plaintiff was the one to
schedule medical appointments, defendant was diligent in participating in them. The evidence did
not “clearly preponderate[] in the opposite direction” from the trial’s finding that an ECE had
existed with both parents. Vodvarka, 259 Mich App at 507 (quotation marks and citation
1
Plaintiff states on appeal that defendant had fewer overnights with EM, but this lower amount
was on the basis of an earlier, outdated overnight schedule listed in the judgment of divorce.
Defendant had since begun exercising the same amount of parenting time for both children.
2
The Lieberman Court also stated, “By proposing a reduction in the number of overnights the
children spend with defendant to a distinct minority of the year, plaintiff was proposing a change
in custody, regardless of the label he gave his motion.” Lieberman, 319 Mich App at 86. Here,
neither parent was given overnights amounting to a “distinct minority of the year”—they were
given equal time.
3
The referee concluded that the ECE had existed with both parents and that the new order did not
change the ECE. The circuit court stated that it agreed with the referee’s analysis as to the ECE.
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omitted).4 Accordingly, when the court modified the parenting-time schedule to provide for a
50/50 split, no change in the ECE occurred, and, contrary to plaintiff’s assertion, the court did not
apply an improper burden of proof when it used a preponderance-of-the-evidence standard. Shade,
291 Mich App at 22-23.
Plaintiff also argues that there was no basis to revisit custody or parenting time in the first
instance. At the beginning of the evidentiary hearing, the referee stated that the “proper cause”
issue under Vodvarka had already been decided by the circuit court and that the evidentiary hearing
would proceed directly to an assessment of the best-interests factors. The circuit court had
indicated, earlier, that an evidentiary hearing was warranted on the basis of factor (j) of the best-
interests factors. See MCL 722.23(j) (referring to “[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 court did not explicitly indicate
whether, in ordering the hearing, it was operating under the more stringent change-of-custody
standard from Vodvarka or the lesser parenting-time standard from Shade. And although plaintiff
requested equal parenting time, he also requested “sole” physical custody as an alternative in his
written motion. The proposal of “sole” physical custody was a proposal to change the ECE,
meaning that the Vodvarka standard would apply. However, on appeal, plaintiff focuses not on
this alternative request that defendant initially made, but focuses on what actually resulted—
i.e., the 50/50 split in parenting time. As discussed, this 50/50 result did not alter the ECE.
IV. BEST INTERESTS
Plaintiff next challenges the trial court’s findings regarding several of the best-interests
factors and argues that no change in custody or parenting time was warranted. We disagree.
4
Despite the Lieberman Court’s reference to the language of the divorce judgment, see Lieberman,
319 Mich App at 85, the fact that the judgment of divorce in the present case characterized plaintiff
as having “sole physical custody” should not be viewed as dispositive in light of all the other
circumstances. We note, too, that in Pierron v Pierron, 282 Mich App 222, 248; 765 NW2d 345
(2009), aff’d 486 Mich 81 (2010), this Court stated:
The testimony established that although defendant had primary physical
custody and the children lived with her the majority of the time, the children did
look to both of their parents “for guidance, discipline, the necessities of life, and
parental comfort.” MCL 722.27(1)(c). The testimony further showed that the
children had permanent, secure, and lasting relationships with both plaintiff and
defendant. Although the children’s relationship with their father may have become
strained after the change-of-school issue arose, and even though the evidence
suggested that the children were not as close with their father as they were with
their mother, the circuit court properly found that an established custodial
environment existed in both parents’ homes. The circuit court’s finding in this
regard was not contrary to the great weight of the evidence. MCL 722.28.
[Citations omitted; emphasis added.]
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After the circuit court determined that defendant’s proposed change would not affect the
children’s ECE, defendant was required to show by a preponderance of the evidence that the
change was in the best interests of the children. Pierron, 486 Mich at 93. MCL 722.23 states:
As used in this act, “best interests of the child” means the sum total of the
following factors to be considered, evaluated, and determined by the court:
(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.
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Plaintiff takes issue with the court’s findings regarding factors (b), (c), (g), (h), (j) and (k).5
The court found the parties equal with regard to factors (b) and (c), (g), and (k), and equal on factor
(h) as applied to LM and irrelevant as applied to EM. The court found that defendant was favored
with regard to factor (j).
Plaintiff first contends that the court should have favored her regarding factors (b), (c), (g),
(h), and (k).
Concerning factor (b), plaintiff states:
Plaintiff[] is the one who does all the work to ensure that the children are properly
enrolled in school and extracurricular activities. As far as Defendant[]’s disposition
toward doing that in the future, the only thing Defendant[] ever signed the children
up for was a daycare/preschool facility completely out of the way of everyone
involved and with no nearby medical facilities.
However, defendant explained at the evidentiary hearing that he was not able to arrange for
activities for the children because he only had them one overnight from Monday through Friday.
He said that he was “[a]bsolutely” intending to enroll them in activities if he were to be awarded
“more weekday overnights.” The court stated that this factor anticipated how the parties would
act in the future. The court’s finding of equality on this factor was not against the great weight of
the evidence. Defendant was intending to enroll the children into more activities in the future if
awarded more parenting time, and it was clear from the evidence as a whole that defendant would
foster the love between him and the children and continue their involvement with religion.
MCL 722.23(b).
Concerning factor (c), plaintiff focuses on medical care and states that she is the one who
takes the initiative to set up medical appointments. But the evidence showed that defendant was
diligent about staying on top of the children’s medical issues, wanted to be involved equally in
their care, and took active steps to be involved. Plaintiff herself acknowledged that he usually
attended appointments.6 All the evidence, viewed as a whole, did not clearly preponderate against
the court’s findings on factor (c).
5
Although, as noted, it was a change in parenting time that was at issue in the present case and not
a change in the ECE, plaintiff focuses, in her briefing, on the best-interests factors from
MCL 722.23 and not on the parenting-time factors in MCL 722.27a. We address the arguments
as made by plaintiff and do not set forth a separate analysis of the parenting-time factors. We also
note that the court’s failure to address the parenting-time factors is not grounds for reversal.
See Shade, 291 Mich App at 32 (“While the trial court did not explicitly address the factors in
MCL 722.27a(6) in modifying defendant’s parenting time, it was clear from the trial court’s
statements on the record that the trial court was considering the minor child’s best interests in
modifying defendant’s parenting time.”).
6
In addition, an incident occurred during which LM was sick; defendant had to pick him up from
school during plaintiff’s parenting time; and plaintiff, instead of letting LM stay and recover for a
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As for factor (g), plaintiff claims that this factor favored her because she was continuing
with counseling, whereas defendant had stopped going. She also makes note of plaintiff’s prior
mental instability and states that she once saw an open beer at defendant’s home. It is not in
dispute that defendant had issues, in the past, with his mental health and with alcohol. But these
issues were before the consent judgment of divorce, and defendant testified that he had been in
counseling for several years and had resolved these earlier issues. The parties agreed in the
judgment of divorce to refrain from drinking alcohol during their parenting times. Plaintiff points
to her testimony that one time, when she picked up EM, there “appeared to be a beer on the counter
that [defendant] was trying to hide with his dinner.” However, plaintiff could not remember when
this incident occurred and stated that it might have been when the two were “separated.” She
admitted that she had not seen defendant drinking “recently.” In addition, defendant stated that he
does not keep alcohol in his home. Moreover, his former girlfriend said that she had never seen
defendant drunk or intoxicated and that he did not drink when he had the children. Under all the
circumstances, the evidence did not clearly preponderate against the court’s finding that the parties
were equal on factor (g).
Plaintiff contends that factor (h) favored her as applied to LM because she was the one who
signed LM up for school and extracurricular activities. This is merely a reiteration of her argument
regarding factor (b). Defendant explained that he would be more proactive about signing the
children up for activities if he had more weekday overnights. The court’s finding regarding
factor (h) was not against the great weight of the evidence. The court aptly noted that the children
were well-adjusted and that this was “the result of both parents.”
Regarding factor (k), plaintiff does not allege any physical violence, and the record does
not support any. The court stated that there may have been some instances that made plaintiff feel
“harassed,” but the court did not specify what these were, and it noted that they occurred before
the consent judgment of divorce and therefore were not pertinent. In connection with factor (k),
plaintiff focuses on her allegation that defendant had sent LM to her home with a walkie-talkie in
order to eavesdrop on her, and notes that the walkie-talkie incident happened after the judgment
of divorce. Defendant, however, testified that he gave the walkie-talkie to LM as a toy to help him
with the difficult transitions from defendant’s home to plaintiff’s home. The court’s finding
regarding factor (k) was not against the great weight of the evidence. There was no evidence of
domestic violence. Even if the walkie-talkie issue could somehow be analogized to a “stalking”
allegation, defendant’s testimony about the walkie-talkie being a mere toy supported the trial
court’s finding.
The court was primarily concerned with factor (j), and plaintiff contends that the trial court
improperly concluded that defendant was favored with regard to this factor. Plaintiff contends that
she did not speak ill of defendant in front of the children, that everything she said about defendant
to others was true, and that she spoke negatively about defendant to a pediatrician out of concern
for the children. But defendant testified that plaintiff did denigrate defendant, and even called him
“disgusting,” in the presence of the children. Also, LM’s preschool teacher explained that plaintiff
few hours at defendant’s house before the official start of defendant’s parenting time, insisted that
LM be returned to her home for a short while. This was not in the best interests of a sick child.
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denigrated defendant and “made him out to be quite a horrible person” in the presence of the
children. And, as far as the comments made to the pediatrician, they pertained to issues preceding
the consent judgment of divorce. If plaintiff truly believed that defendant posed a risk of harm to
the children, it is perplexing why she signed a consent judgment that granted him considerable
parenting time. Instead, her comments fit with the pattern of her continuous attempts to denigrate
him, including to people who spent time and interacted with the children. There was also evidence
that plaintiff refused to facilitate defendant’s participation in kindergarten orientation, failed to
properly facilitate his participation in a medical appointment by way of telephone, refused to assist
him in participating in LM’s “t-ball,” and stopped taking LM to soccer because she did not want
to interact with defendant. Under all the circumstances, the trial court’s conclusion that factor (j)
favored defendant was not against the great weight of the evidence.
The court’s discretionary ruling to change the parenting-time schedule is reviewed for an
abuse of discretion. Vodvarka, 259 Mich App at 507-508. As stated in Maier v Maier, 311 Mich
App 218, 221; 874 NW2d 725 (2015), the definition of “abuse of discretion” means something
different in a child-custody determination as compared to other types of cases and involves
determining whether “the result is so palpably and grossly violative of fact and logic that it
evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or bias.” (Quotation marks and citations
omitted; brackets removed). The court’s decision does not meet this standard. A preponderance
of the evidence supported that—in light of the concerns relating to plaintiff’s fostering of the
parent-child relationships between defendant and the children—an equal split of parenting time
was appropriate.
Plaintiff points out that challenges to the referee’s findings on factors (d) and (e) were not
raised and that, therefore, the referee’s conclusion that these factors favored plaintiff remained in
effect at the time of the trial court’s ruling. The referee found that factors (d) and (e) favored
plaintiff, stating that defendant’s home was fine but that the children had had an association with
plaintiff’s home for a longer period and that the presence of the maternal grandmother, who lived
there, had been steady. It is true that challenges to these particular findings were not raised. But
the trial court noted, “The factors aren’t all equal. The [c]ourt . . . can give them appropriate weight
based on the facts of the case.” The court did not explicitly refer to factors (d) and (e), but it agreed
with the referee’s 50/50 split of parenting time. Implicitly, then, the court concluded that the
concerns surrounding factor (j) outweighed the information regarding factors (d) and (e). The
best-interests factors are not to be viewed as equal in weight or applied in a strictly mathematical
fashion. McCain v McCain, 229 Mich App 123, 130-131; 580 NW2d 485 (1998). While the
children had spent more time overall in plaintiff’s home, and while the maternal grandmother also
lived there and had a good relationship with the children, defendant was also in a suitable home.
We must keep in mind that the standard of review is deferential. The trial court did not abuse its
discretion by implicitly concluding that moving to a 50/50 parenting-time schedule was supported
by the findings under factor (j), even despite the findings made under factors (d) and (e) regarding
plaintiff’s living situation.
The evidence as a whole showed that both plaintiff and defendant deeply loved the
children, that the children loved both parents, and that both parents were very involved in the
children’s care and day-to-day life. Both parents had jobs with some flexibility. Both parents had
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suitable homes and substantial incomes. Under all the circumstances, the split-custody
arrangement was not an abuse of discretion.
V. ATTORNEY FEES
Plaintiff lastly contends that the trial court erred by failing to award her attorney fees. We
disagree.
MCR 3.206(D) states:
(1) A party may, at any time, request that the court order the other party to
pay all or part of the attorney fees and expenses related to the action or a specific
proceeding, including a post-judgment proceeding.
(2) A party who requests attorney fees and expenses must allege facts
sufficient to show that:
(a) the party is unable to bear the expense of the action, including the
expense of engaging in discovery appropriate for the matter, and that the other party
is able to pay, or
(b) the attorney fees and expenses were incurred because the other party
refused to comply with a previous court order, despite having the ability to comply,
or engaged in discovery practices in violation of these rules.
Plaintiff contends that she should have been awarded fees under MCR 3.206(D)(2)(a)
because she was unable to bear the expense of the action. The trial court stated that “plaintiff
testified that she has been financially crippled by these proceedings.” It then noted that plaintiff
had made her allegation “in the form a [sic] conclusion with no supporting material.” It continued,
“Accordingly, the [c]ourt exercises its discretion not to award attorney fees.”
The court did not abuse its discretion. First, what plaintiff actually said was the following,
after being asked, on the fourth day of the evidentiary hearing, if she had any questions:
I said my only comment is that my understanding was this was supposed to be eight
hours, and eight hours to present your case, and this has just gone so far beyond
that.
That it’s just devastating to me and it’s hard for me and my family
financially, and emotionally, and this needs to end, and I’m pleading that this is
done [at the next hearing date], and some justice is served.
Plaintiff did not state that the case was financially devastating. She said that “it”—presumably the
case in general—was devastating and added that things were “hard” for her and her family
financially. She did not say that she was unable to bear the expense of the action. Also, when
filing her objection to the referee’s recommendation and requesting attorney fees, she claimed the
following:
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Plaintiff has testified she has been financially crippled by this litigation and
is unable to bear the expense of this action, including the extensive discovery
request by the Defendant.
However, plaintiff did not point to where in the record she offered this supposed testimony about
being financially crippled, and on appeal she does not point to where in the record she offered this
supposed testimony. In addition, in connection with her request for attorney fees, she did not offer
any details or offers of proof regarding her financial situation or bank-account balances. Plaintiff
was earning a salary of $81,000 a year. It is true that defendant earned a considerably higher
salary, but the pertinent threshold question for MCR 3.206(D)(2)(a) is whether plaintiff was unable
to bear the expense of the action, not whether defendant was more easily able to bear the expense
of the action as compared to plaintiff. In Smith v Smith, 278 Mich App 198, 207-208; 748 NW2d
258 (2008), this Court stated:
Pursuant to [MCR 3.206(D)(2)(a)], the party requesting the fees must allege facts
sufficient to show that he or she is “unable to bear the expense of the action, and
that the other party is able to pay.”
We agree with the trial court that defendant did not demonstrate that she
was unable to bear the expense of the action, and that plaintiff was able to pay . . . .
Defendant’s request for attorney fees and supporting affidavit were solely
comprised of unsubstantiated assertions that, aside from spousal support used for
living expenses, her income is “minimal,” and that she would be unable to defend
the action unless the trial court awarded her attorney fees.
Here, too, plaintiff made unsubstantiated assertions. As such, the trial court did not abuse its
discretion by declining to award attorney fees under MCR 3.206(D)(2)(a).
Plaintiff cites Stallworth v Stallworth, 275 Mich App 282; 738 NW2d 264 (2007) in support
of her position. In that case, this Court stated:
In the present case, the trial court decided that awarding plaintiff attorney fees was
necessary to enable her to obtain a divorce. The parties stipulated that each attorney
was owed $18,500. Plaintiff was awarded $10,000 in attorney fees. Because
plaintiff’s yearly income is less than the amount she owed her attorney, she
sufficiently demonstrated her inability to pay her attorney fees. Furthermore,
defendant earns more than double what plaintiff earns in a year, which
demonstrated his ability to contribute to plaintiff’s attorney fees. Under these
circumstances, the trial court’s ruling was within the range of reasonable and
principled outcomes. [Id. at 288-289.]
Stallworth does not require reversal in the present case because in that case, the plaintiff
“sufficiently demonstrated” the threshold condition of “her inability to pay her attorney fees.” Id.
at 288. Plaintiff in the present case did not do so.
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Plaintiff also argues that defendant engaged in protracted discovery. 7 Presumably, this is
a reference to MCR 3.206(D)(2)(b) and its mention of “discovery practices in violation of these
rules.” But plaintiff’s entire argument about alleged discovery abuses is: “Before the hearings, the
discovery period was extended by Defendant[] requests [sic] for many depositions from witnesses
who ultimately did not end up testifying.” Plaintiff utterly fails to indicate how defendant violated
the court rules. As stated in Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998):
[A] mere statement without authority is insufficient to bring an issue before this
Court. It is not sufficient for a party simply to announce a position or assert an
error and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position. [Citation and quotation marks
omitted.8]
Plaintiff next argues that an award of fees was appropriate under MCR 3.206(D)(2)(b)
because defendant violated a court order, namely the judgment of divorce. The judgment states:
“When [EM] turns three years old, then the parties may revisit the issue of expanding the
Defendant’s parenting time as allowed pursuant to state law.” Plaintiff contends that defendant
violated the judgment of divorce by seeking more parenting time when EM was only two years
old.
This provision in the judgment provided an avenue for expansion of defendant’s parenting
time but did not state that defendant could seek an expansion only if EM were three years old or
7
Plaintiff further complains about defendant’s usage of four of the five hearing dates to present
his case, but fails to acknowledge that a considerable portion of this time was for her own
attorney’s questioning of plaintiff and defendant. Plaintiff’s attorney acknowledged that his
questioning of plaintiff and defendant on cross-examination had constituted a primary part of his
case in chief. The referee pointed out that “both attorneys have felt it necessary to inquire with
great specificity on lots of issues, and that’s been on both sides.”
8
Also, in Borowsky v Borowsky, 273 Mich App 666, 687; 733 NW2d 71 (2007), this Court stated:
On appeal, plaintiff contends that defendant engaged in dilatory trial tactics
designed to abuse him and frustrate his efforts to participate in their children’s lives
and obtain a just child support arrangement. However, plaintiff merely summarizes
the various actions taken by defendant throughout the lower court proceedings
without further evidence. On the record before us, we cannot conclude that the
actions complained of were not taken in good faith. Furthermore, the trial court
specifically found that neither party was responsible for the protracted nature of the
litigation. Therefore, plaintiff has not demonstrated that the actions taken by
defendant were unreasonable or that any expenses he incurred were causally
connected to her conduct. The trial court did not abuse its discretion in declining
to award plaintiff his attorney fees. [Citation omitted; emphasis added.]
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older. Indeed, such a provision would be contrary to ensuring the children’s welfare.
MCL 722.27a(1) states:
Parenting time shall be granted in accordance with the best interests of the
child. It is presumed to be in the best interests of a child for the child to have a
strong relationship with both of his or her parents. Except as otherwise provided in
this section, parenting time shall be granted to a parent in a frequency, duration,
and type reasonably calculated to promote a strong relationship between the child
and the parent granted parenting time.
In addition, as already discussed, MCL 722.27(1)(c) allows for modification of custody or
parenting-time orders for proper cause or a change of circumstances. Under the circumstances,
defendant’s seeking a change to the parenting-time schedule was not a basis for awarding attorney
fees.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Anica Letica
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