Halyna Kalynovych v. Igor Kalynovych ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
HALYNA KALYNOVYCH, UNPUBLISHED
March 27, 2018
Plaintiff-Appellee,
v No. 338758
Oakland Circuit Court
IGOR KALYNOVYCH, LC No. 2012-802124-DM
Defendant-Appellant.
Before: K. F. KELLY, P.J., and MURPHY and RIORDAN, JJ.
PER CURIAM.
This custody matter is returning to this Court after the case was remanded for a new
evidentiary hearing regarding custody of the parties’ minor son YK. Kalynovych v Kalynovych,
unpublished opinion per curiam of the Court of Appeals, issued February 19, 2015 (Docket No.
321942). On remand, the trial court held a new evidentiary hearing and awarded sole legal
custody of YK to plaintiff. The court ordered that YK would primarily live with plaintiff, but
that defendant would have parenting time pursuant to a schedule determined by the court.
Defendant appeals as of right, challenging the trial court’s custody decision. We affirm.
To begin, we offer the following brief summary that was provided by this Court in its
prior opinion in this case:
Plaintiff and defendant first married in 1995 in Ukraine. Two children
were born of that marriage, VK and YK. The parties divorced in Ukraine in 2008,
but remarried in 2009. In 2010, the family left Ukraine and moved to Hamtramck.
Plaintiff filed for divorce in 2012. After multiple substitutions of counsel,
interpreters, and adjournments, the court held a two-day bench trial. Both parties
were represented by counsel at the first day of the trial. However, on March 12,
2014, the trial court allowed the attorneys for both parties to withdraw. The trial
court questioned the parties, who were the only witnesses, with the assistance of a
translator. Because the parties had agreed that VK could live with defendant, the
trial court made no findings regarding VK. Plaintiff was awarded sole physical
and legal custody of YK. However, the actual divorce judgment awarded the
parties joint legal custody of VK with sole physical custody to defendant.
[Kalynovych, unpub op at 1.]
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Defendant appealed, and while this Court rejected most of his challenges, the panel
concluded that the factual findings made by the trial court were “insufficient to allow meaningful
review.” Id. at 7. This Court vacated the trial court’s prior decision and remanded the matter for
a new child custody hearing. Id. at 9. On remand, while the judge that had presided over the
matter initially rejected defendant’s request that she disqualify herself from the case, the judge
ultimately disqualified herself on her own motion, and a new judge was appointed to preside
over the matter. Defendant was represented at various times by different attorneys, but by the
time the custody hearing began, his then-most recent attorney had withdrawn, and he proceeded
in propria persona for the first two days of the hearing. Between the second and third hearing
dates, defendant obtained one attorney, and then replaced him with another, who represented
defendant throughout the remainder of the hearing. After four days of testimony, the trial court
issued a detailed opinion and order explaining its decision. Defendant appeals the ruling as of
right.
I. JUDICIAL BIAS
Defendant first contends that the trial court was biased against him, thereby denying him
a fair hearing. We disagree.
To preserve a claim of judicial bias, an appellant must raise the issue via motion in the
trial court. MCR 2.003; In re Forfeiture of $53, 178 Mich. App. 480, 497; 444 NW2d 182 (1989).
At the outset of the custody hearing, defendant asked the presiding judge to disqualify herself
from the matter, contending that the judge failed to consider or denied several of his motions.
Thus, to the extent defendant’s argument is based on this issue, the question is preserved.
However, the majority of defendant’s claims of purported bias are premised on decisions and
comments made by the trial court during and after the custody hearing. Defendant never moved
for disqualification based on any of these rulings or comments, and thus, to the extent the
argument is premised on what occurred during and after the custody hearing, the issue is not
preserved. Nevertheless, we shall address defendant’s full argument on alleged judicial bias.
“When this Court reviews a motion to disqualify a judge, the trial court’s findings of fact
are reviewed for an abuse of discretion; however, the applicability of the facts to relevant law is
reviewed de novo.” Armstrong v Ypsilanti Charter Twp, 248 Mich. App. 573, 596; 640 NW2d
321 (2001). “An abuse of discretion occurs when the trial court’s decision is outside the range of
reasonable and principled outcomes.” In re MKK, 286 Mich. App. 546, 564; 781 NW2d 132
(2009) (quotation marks omitted).
Defendant’s brief on appeal cites a variety of cases discussing the requirements of due
process generally, but eventually, he hones in on the issue of judicial bias.1 Defendant also cites
MCR 2.003(C)(1)(b). Under this court rule, disqualification of a judge is warranted if:
1
It is somewhat notable that almost all of the cases cited at any length by defendant regarding
the question of judicial bias are criminal cases discussing when a judge’s conduct or statements
may influence a jury and thereby deny a criminal defendant a fair trial. See, e.g., People v
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The judge, based on objective and reasonable perceptions, has either (i) a serious
risk of actual bias impacting the due process rights of a party as enunciated in
Caperton v Massey, 556 U.S. 868; 129 S. Ct. 2252; 173 L. Ed. 2d 1208 (2009), or
(ii) has failed to adhere to the appearance of impropriety standard set forth in
Canon 2 of the Michigan Code of Judicial Conduct. [MCR 2.003(C)(1)(b).]
Defendant goes on to explain a number of circumstances that he believes demonstrate that the
trial court was “less than impartial.” We do not share in defendant’s view of the circumstances.
“[A] party challenging the impartiality of a judge must overcome a heavy presumption of
judicial impartiality.” Van Buren Charter Twp v Garter Belt, Inc, 258 Mich. App. 594, 598; 673
NW2d 111 (2003) (quotation marks omitted). “In general, the challenger must prove a judge
harbors actual bias or prejudice for or against a party or attorney that is both personal and
extrajudicial.” Id. “[J]udicial rulings, in and of themselves, almost never constitute a valid basis
for a motion alleging bias, unless the judicial opinion displays a deep-seated favoritism or
antagonism that would make fair judgment impossible and overcomes a heavy presumption of
judicial impartiality.” Armstrong, 248 Mich. App. at 597 (quotation marks omitted). “Repeated
rulings against a litigant, even if erroneous, are not grounds for disqualification. The court must
form an opinion as to the merits of the matters before it. This opinion, whether pro or con,
cannot constitute bias or prejudice.” Id. at 597-598 (citation omitted).
Defendant first contends that he filed several parenting time motions that were dismissed
without being heard. Defendant fails to cite the particular motions at issue, and thus fails to
properly present the issue on appeal. Detroit/Wayne Co Stadium Auth v Drinkwater, Taylor and
Merrill, Inc, 267 Mich. App. 625, 640; 705 NW2d 549 (2005). That said, it does appear true that
defendant, without the assistance of counsel, filed several motions that were not heard. But the
record does not show that this was the result of judicial bias. A motion filed by defendant on
September 10, 2015, was not certified by him as having been served on the opposing party, and
likely was not heard for this reason. Defendant filed a motion on June 14, 2016, which contained
allegations that plaintiff interfered with his parenting time. No response was filed to the motion.
While this motion apparently was not heard, defendant refiled the same motion on July 26, 2016.
Plaintiff did respond to the motion this time, and on August 3, 2016, the trial court granted the
motion in part and denied it in part, explaining that the parenting time issues would be addressed
at the evidentiary hearing. Thus, the motion was addressed by the trial court. Defendant filed
another motion on September 20, 2016, which again alleged that plaintiff interfered with his
parenting time. However, this motion was dismissed on September 29, 2016, due to improper
service. On this record, the trial court’s conduct in no way demonstrates bias.
Defendant next points to the fact that the trial court denied his repeated requests for a
court-appointed attorney on the first day of the custody hearing. The Sixth Amendment does not
provide a right to counsel in civil matters. Turner v Rogers, 564 U.S. 431, 441; 131 S. Ct. 2507;
Stevens, 498 Mich. 162; 869 NW2d 233 (2015). The relevancy of these cases to the present
matter is fairly limited, given that this case does not involve a criminal jury trial.
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180 L. Ed. 2d 452 (2011). Nor does the Due Process Clause of the Fifth Amendment require the
provision of counsel in most instances. Id. at 442-443. Those limited circumstances generally
only involve cases where a losing party faces the possibility of a loss of physical liberty. Id.
Defendant offers no authority that would require the provision of appointed counsel in a
proceeding such as that at issue here. Further, and as the trial court repeatedly informed
defendant, he had been without counsel for several months before the custody hearing. He could
have obtained counsel at any point, as he eventually did for the last two days of the hearing. 2
The trial court’s rulings, which were entirely appropriate, do not demonstrate bias.
On the issue of bias, defendant next argues that hearsay was impermissibly allowed at the
hearing. Even if true, defendant did not object to any evidence on hearsay grounds, and thus, no
rulings were made by the trial court. While judicial rulings rarely, if ever, demonstrate judicial
bias, Armstrong, 248 Mich. App. at 597-598, given the lack of any ruling, there is simply nothing
in the record that could possibly demonstrate bias on the part of the trial judge.
Without citing to the record, defendant contends that he was repeatedly rushed during his
presentation of evidence. After reviewing the record, there were some instances where the trial
court asked defense counsel to move on from repetitive or irrelevant matters, or to refocus
defendant on the questions being posed to him. But the trial court’s comments and directions
were clearly within its right to control the proceedings. See MRE 611(a) (“The court shall
exercise reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to [1] make the interrogation and presentation effective for the ascertainment of
the truth, [2] avoid needless consumption of time, and [3] protect witnesses from harassment or
undue embarrassment.”). The trial court’s conduct did not demonstrate bias.
Defendant takes issue with the fact that the trial court did not agree with the
recommendation of a guardian ad litem (GAL) appointed by the trial court. While defendant is
likely disappointed that the trial court did not adopt the GAL’s recommendation, it was the trial
court, not the GAL, who was ultimately tasked with rendering a decision in this case. See MCL
722.23 (setting forth the best interest factors that control in custody matters, which are “to be
considered, evaluated, and determined by the court”) (emphasis added). Thus, the court had to
evaluate and give an opinion on the factors; exercising these duties did not constitute bias or
prejudice in and of itself. See Armstrong, 248 Mich. App. at 597-598.
Defendant’s remaining arguments pertain to how the trial court resolved factual issues.
Defendant contends that the trial court erred by finding that he had physically assaulted plaintiff
in the past and that plaintiff was a credible witness. Plaintiff, however, testified to instances of
abuse, and thus, there was an evidentiary basis for the court’s ruling rather than one that was
indicative of bias. With regard to the trial court’s credibility determinations, it has long been
2
On that note, it is somewhat telling that despite being adamant that the hearing could not
continue until he was represented by counsel, defendant did not retain counsel to represent him
during the nearly two-month long period that transpired between the first and second days of the
custody hearing.
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recognized that when a trial court is tasked with making factual determinations, “[g]reat weight
is given to the determination of the trial judge, who is able to view the demeanor of the witness.”
Storms v Storms, 183 Mich. App. 132, 135; 454 NW2d 175 (1990). Thus, this Court generally
defers to a trial court’s credibility determinations. Berger v Berger, 277 Mich. App. 700, 707; 747
NW2d 336 (2008). There is nothing in the record that would indicate that the trial court’s
credibility determinations were based on anything other than proper considerations. As
explained, the trial court must come to an opinion regarding the matters before it, and this
opinion, regardless of who it favors, cannot constitute bias. Armstrong, 248 Mich. App. at 597-
598. In sum, defendant fails to demonstrate that the trial court was biased against him.
II. CUSTODY FACTORS
Defendant next challenges the trial court’s findings with respect to 10 of the 12 best-
interest factors stated in MCL 722.23. We find no basis to disturb the trial court’s decision.
There are three different standards of review applicable to child custody
cases. The clear legal error standard applies where the trial court errs in its choice,
interpretation, or application of the existing law. Findings of fact are reviewed
pursuant to the great weight of the evidence standard. In accord with that
standard, this Court will sustain the trial court’s factual findings unless the
evidence clearly preponderates in the opposite direction. Discretionary rulings are
reviewed for an abuse of discretion, including a trial court’s determination on the
issue of custody. [Foskett v Foskett, 247 Mich. App. 1, 4-5; 634 NW2d 363 (2001)
(quotation marks and citations omitted).]
The best-interest factors that must be considered by the trial court are found in MCL
722.23(a) through (l):
(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.
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(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.
Of the 12 factors listed above, defendant only omits factors (a) and (g), which factors the trial
court found neutral, from his appellate challenge.
With regard to MCL 722.23(b), “[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 explained that while both parties loved
YK, plaintiff was far more involved in his education and religious activities, and thus, this factor
favored plaintiff. On appeal, defendant argues that this finding was erroneous because plaintiff
could not remember the name of the church she attended with YK or the name of his doctor,
calling into question plaintiff’s credibility. This Court generally will not interfere with a trial
court’s credibility determinations. Berger, 277 Mich. App. at 707. Regardless, although plaintiff
could not remember the name of YK’s church, she detailed many facts regarding YK’s religious
education. Defendant, on the other hand, testified that he attended church when he could, and
when asked to give more details, defendant did not wish to respond, questioning whether his
religious involvement was “a requirement[.]” It was also clear from the testimony of both parties
that plaintiff was the only parent involved in YK’s medical care, although she could not
remember the last name of his doctor.
Defendant also contends that the trial court ignored certain testimony regarding his
involvement in YK’s education. The testimony adduced at trial demonstrated that plaintiff was
clearly more involved in YK’s education than defendant. Defendant indeed testified that he and
VK helped YK with his homework. But on the entire record, it was fairly apparent that plaintiff
was much more involved in YK’s education than defendant. The trial court did not need to
explicitly state its consideration of every piece of evidence presented at trial. MacIntyre v
MacIntyre (On Remand), 267 Mich. App. 449, 452; 705 NW2d 144 (2005). Defendant fails to
demonstrate that the trial court’s finding with respect to MCL 722.23(b) was against the great
weight of the evidence.
Factor (c) considers “[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
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laws of this state in place of medical care, and other material needs.” MCL 722.23(c). The trial
court found that this factor favored plaintiff, explaining that defendant failed to pay child support
under an existing support order, and that plaintiff was the only parent to take YK to medical
appointments. Plaintiff also testified that she provided YK with food, clothing, and other
material needs. On appeal, defendant does not challenge the accuracy of this evidence. Rather,
he contends that the trial court erred by failing to consider that he had a steady source of income,
and by failing to acknowledge defendant’s testimony that he would do anything for his children.
Again, the trial court need not explicitly state its consideration of every piece of evidence.
MacIntyre, 267 Mich. App. at 452. Further, although it might be argued that defendant has the
ability to provide for YK’s material needs, it is essentially unrefuted that he has not paid child
support as ordered, and that he has been entirely uninvolved in YK’s medical care. It is not
simply the ability to provide for a child’s material needs, but a parent’s disposition to do so that
is relevant under MCL 722.23(c). While defendant’s words indicated that he had such a
disposition, his actions demonstrated the opposite. “[A]s oft noted, sometimes a person’s actions
speak louder than his words.” Secura Ins Co v Blotsky, 182 Mich. App. 637, 642; 452 NW2d 899
(1990). The trial court’s findings were not against the great weight of the evidence.
Factor (d) considers “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). The trial court
found this factor was neutral, explaining that both parties had suitable homes, located near each
other. Defendant argues that the trial court failed to address the desirability of maintaining
continuity and the “appropriateness of maintaining the continuity with” VK. Defendant’s
argument is meritless because the “desirability of maintaining continuity” is not a factual
determination to be made by the trial court, but rather, a value stated by our Legislature. See
Ireland v Smith, 451 Mich. 457, 465 n 8; 547 NW2d 686 (1996). Further, while VK currently
lives with defendant, he is an adult who is no longer within the trial court’s jurisdiction. See
Hayford v Hayford, 279 Mich. App. 324, 327; 760 NW2d 503 (2008) (explaining that with regard
to custody and parenting time determinations, the trial court’s jurisdiction ends when the child
reaches age 18). VK could choose to leave defendant’s home at any point. He may also choose
to have a relationship with YK outside of the confines of defendant’s home. But nothing the trial
court orders can control the relationship between VK and YK now that VK has reached the age
of majority.
Factor (e) considers “[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes.” MCL 722.23(e). “[T]he focus of factor e is the child’s prospects for
a stable family environment.” Ireland, 451 Mich. at 465. The trial court found this factor
neutral, explaining that both parties were single and had no roommates, other than the fact that
VK lived with defendant. Defendant contends that the trial court erred by focusing on the
acceptability of the parties’ respective homes rather than permanence. This is simply not true.
The trial court appropriately considered the suitability of each party’s home with regard to factor
(d). The trial court’s findings with respect to factor (e) appropriately explained YK’s prospects
for a stable family environment by noting that in both homes, he would reside only with family
members. The trial court’s finding that both parties were single explains that there is little
prospect, at least at this time, of those family units being disrupted.
Defendant further argues that with respect to factor (e), the trial court should have
considered the importance of keeping siblings together and the potentially devastating effect of
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severing a sibling relationship. This argument is meritless, as the trial court did not sever any
such relationship. Under the trial court’s order, YK will continue to spend time with VK at
defendant’s home. Further, as was explained, VK is an adult who may choose to see YK at
plaintiff’s home. There was no evidence that plaintiff would refuse to allow VK to visit YK at
her home if he wished.
Factor (f) considers the moral fitness of the parties. MCL 722.23(f). The trial court
found this factor neutral, explaining that neither party abused alcohol or drugs, or was involved
in illegal activity. Defendant argues that “[p]oor moral fitness is related to behaviors which the
children know about.” He contends that the trial court’s findings focused on the “moral
example” of the parties and not their fitness as a parent. The fact that neither parent engaged in
the activities discussed by the trial court would seem relevant to their moral fitness. One could
conclude that a parent who engages in illegal activity is not morally fit and that a parent who
abuses alcohol or drugs, in some contexts, is not morally fit to parent. Thus, the lack of such
behaviors would be a relevant consideration. To the extent that defendant believes other
evidence was relevant to this factor, he does not point to any evidence that establishes plaintiff
was not morally fit, or that he was superior in this regard. Defendant fails to demonstrate that
this finding was against the great weight of the evidence.
Factor (h) considers “[t]he home, school, and community record of the child.” MCL
722.23(h). With regard to this factor, the trial court explained that plaintiff was the only parent
actively involved in YK’s education, and that according to plaintiff, defendant did not assist YK
with his homework or try to help him improve his grades. The trial court also explained that
plaintiff had testified that YK was liked by his teachers and peers. On appeal, defendant argues
that the trial court’s findings were not accurate because defendant contradicted plaintiff’s
testimony regarding his involvement in YK’s homework and other educational affairs. In this
regard, the trial court clearly found plaintiff more credible than defendant. Again, we defer to
the trial court’s credibility determinations. Berger, 277 Mich. App. at 707. Defendant also argues
that the trial court failed to consider that he owned a larger home than that rented by plaintiff.
This is simply not relevant under factor (h). Factor (h) considers the home record of the child,
not the comparable attributes of the structures in which each party resides. MCL 722.23(h).
Factor (i) is the reasonable preference of the child, if the child is old enough to express a
preference. MCL 722.23(i). The trial court stated that it interviewed YK in camera and would
consider his preference as the court deemed appropriate. Defendant argues that the trial court’s
finding was inappropriate because the trial court “was going to choose whether to consider the
preference or not.” Defendant seems to misread the trial court’s opinion. The trial court did not
state that it would choose whether to consider YK’s preference, but rather, that it would consider
his preference as it found appropriate. In other words, the trial court gave the factor
consideration, but as part of its consideration of all of the factors, not as a single controlling
factor. This is an entirely proper way to address factor (i). See Maier v Maier, 311 Mich. App.
218, 226-227; 874 NW2d 725 (2015) (explaining that the trial court “may consider the relative
weight of the factors [stated in MCL 722.23] and is not required to give them equal weight”);
MacIntyre, 267 Mich. App. at 458 (“The trial court need not violate the child’s confidence by
revealing that preference on the record.”); Treutle v Treutle, 197 Mich. App. 690, 694-695; 495
NW2d 836 (1992) (“The child’s preference does not automatically outweigh the other factors,
but is only one element evaluated to determine the best interests of the child.”).
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Defendant also contends that this factor favored him because at the custody hearing, the
GAL testified that YK preferred to live with defendant. Defendant’s argument is meritless for
several reasons. First, while the GAL did testify (against the trial court’s wishes)3 that YK
preferred to live with defendant, this does not establish what was revealed during the trial court’s
in camera discussions with YK. Additional or different information may well have come to light
that contradicted the GAL’s statement. Second, the trial court may well have found that this
factor favored defendant. That does not, however, mean that YK’s preference would control the
entire outcome. Treutle, 197 Mich. App. at 694-695. Third, factor (i) considers the child’s
“reasonable preference . . . .” MCL 722.23(i). A child’s preference is not reasonable where it is
arbitrary or inherently indefensible. Maier, 311 Mich. App. at 224. Where a preference is the
product of “coaching and emotional distress[,]” it is inherently indefensible. Id. at 225. Here,
there was substantial evidence that defendant had intentionally alienated VK from plaintiff and
was attempting to do the same to YK. Even assuming that YK indicated a preference to live
with defendant, the trial court would not have clearly erred by placing little or no weight on this
preference under the circumstances, as it may well have been an unreasonable preference.
Factor (j) considers the willingness and ability of each parent to foster a close relationship
between the child and the other parent. MCL 722.23(j). The trial court found that this factor
weighed in plaintiff’s favor, explaining that plaintiff had testified to defendant’s “alienating and
brainwashing behavior,” that defendant had called plaintiff disparaging names, that plaintiff’s
relationship with VK was essentially nonexistent because of defendant’s conduct, and that YK
informed plaintiff of several instances where defendant spoke poorly of her. The trial court
found this testimony credible, noting that at the hearing, defendant openly questioned whether it
was appropriate to consider plaintiff a human being. And on the other hand, the trial court found
no evidence that plaintiff disparaged defendant or would try to damage YK’s relationship with
defendant.
Defendant asks how he could call plaintiff disparaging names if he has not spoken to her
in four years, a fact that both parties acknowledged is true. The answer is simple: defendant can
speak about plaintiff when she is not present and call her disparaging names to others, such as
VK and YK. Defendant argues that no other evidence supported plaintiff’s testimony that
defendant alienated VK from her. But the evidence exists in plaintiff’s testimony, which the trial
court found credible, and the fact that VK clearly has aligned himself with defendant and against
plaintiff. Further demonstrating that defendant would likely seek to damage YK’s relationship
with plaintiff was defendant’s testimony questioning whether it was even appropriate to consider
plaintiff a human being, as well as his testimony that he would do nothing to encourage YK to
have a relationship with plaintiff; rather, he would leave it up to YK to decide whether he should
3
The GAL provided such testimony, despite the trial court’s repeated requests that the GAL not
state any such opinion at the custody hearing because the trial court would interview YK on its
own.
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have a relationship with her.4 The trial court’s finding was not against the great weight of the
evidence.
Factor (k) considers domestic violence, regardless of whether the child witnesses or is the
target of any such violence. MCL 722.23(k). Relying on plaintiff’s testimony, the trial court
found that defendant verbally and physically abused plaintiff during their relationship,
concluding that this factor weighed in plaintiff’s favor. Defendant argues that this testimony was
not sufficient because plaintiff did not offer further substantive proof of the abuse, because the
acts must have occurred several years ago, and because there was no evidence of a police report.
Simply put, once again, the evidence was plaintiff’s testimony, which the trial court found
credible. Defendant offers no authority for the proposition that this testimony had to be
supported by police reports or other “substantive” evidence to be deemed credible. Nor does
defendant present any authority holding that the acts should have been ignored because they
occurred while the parties were married.
Defendant also contends that the trial court did not mention acts of violence defendant
testified were committed by plaintiff against YK. He cites his own testimony, during which he
claimed that plaintiff was drunk and beat YK. Defendant could not identify when this incident
occurred other than to say he believed it occurred in the past year. He claimed to have a police
report regarding the incident, but did not make any attempt to introduce the police report at the
evidentiary hearing. It is understandable that the trial court did not cite this incident, as the trial
court previously found that neither party had a problem with alcohol. It would seem that the trial
court simply found defendant’s testimony not credible. This Court will not interfere with the
trial court’s credibility determinations. Berger, 277 Mich. App. at 707.
Finally, defendant challenges the trial court’s findings regarding factor (l), which allows a
court to contemplate “[a]ny other factor considered by the court to be relevant to a particular
child custody dispute.” The trial court did not explicitly state a conclusion regarding who this
factor favored, but explained that defendant changed YK’s school in contravention of the trial
court’s order that his school not be changed. Defendant contends that this finding was erroneous
because both parties testified that they signed the form enrolling YK in a new school. This is
true; both parties did acknowledge signing the form. However, plaintiff testified that she was
threatened by defendant and VK, and that her signature was the result of this threat, not her free
will. The trial court clearly found plaintiff’s explanation credible.
Defendant essentially argues that plaintiff should not be believed. Again, we defer to the
trial court’s credibility determinations. Berger, 277 Mich. App. at 707. But we also note that
there are several reasons why the trial court likely found defendant’s version of the events
4
Defendant further contends that if the trial court had permitted him to proceed with his
parenting time motions, the factor would have been resolved differently. The trial court stated
that it would address these issues at the custody hearing. If defendant had any additional
relevant evidence to present, his opportunity was at the hearing. Any failure to present
additional evidence rests with defendant, not the trial court.
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unbelievable. The issue of where YK would attend school has long been a sticking point
between the parties. When plaintiff first left the marital home, she enrolled YK in a public
school. Defendant removed YK from this school and enrolled him in the Manoogian School.
After the first custody hearing and decision in this matter, the trial court awarded sole legal
custody of YK to plaintiff, and plaintiff then enrolled YK in a public school near her home.
Thus, it has been clear for many years that defendant wants YK to attend the Manoogian School,
while plaintiff does not.
Further, while defendant later presented the enrollment form and testified that the
decision to enroll YK in the Manoogian School was a mutual decision, he testified that he had
not communicated with plaintiff for four years. And when it first came to the trial court’s
attention that YK’s school had been changed, which was a direct violation of a prior order by the
court, the trial court appointed counsel to represent defendant, as he was then facing a contempt
finding and jail time. In responding to the allegations, his attorney represented to the court that
defendant had changed YK’s school unilaterally, claiming that YK was being physically harmed
by other students at his former school. Thus, defendant’s about-face in his own testimony,
claiming that the decision was mutual, faced serious credibility concerns. It is not surprising,
then, that the trial court found that defendant violated the trial court’s order and changed YK’s
school. Defendant fails to demonstrate that the trial court’s finding was against the great weight
of the evidence.
III. CUSTODY DETERMINATION
Defendant’s third issue contends that because the trial court was biased against him, and
because the trial court’s factual findings with respect to the best-interest factors were against the
great weight of the evidence, its ultimate custody determination constituted an abuse of
discretion. 5 For the reasons discussed in Sections I and II of this opinion, the arguments
underlying this particular challenge are without merit. Thus, defendant has not shown that the
trial court’s custody determination was an abuse of discretion.
IV. CREDIBILITY
Finally, defendant argues that the trial court “clearly erred” by finding plaintiff credible.
At the risk of sounding redundant, we repeat that this Court defers to the trial court’s credibility
determinations given its “superior position to assess the credibility of the witnesses appearing
5
The trial court’s ultimate custody determination is reviewed for an abuse of discretion. Maier,
311 Mich. App. at 221. But in the context of custody disputes, an abuse of discretion is not
judged by the “default” abuse-of-discretion standard that applies in most other contexts, i.e., the
“principled outcomes” standard. Id. at 222-223. Instead, as to custody matters, an abuse of
discretion occurs if the trial court’s decision 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.” Id. at 221
(quotation marks omitted).
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before it . . . .” Shann v Shann, 293 Mich. App. 302, 307; 809 NW2d 435 (2011). And in this
case, defendant’s arguments present no reason to deviate from that well-ingrained principle.
Plaintiff’s testimony did not, as defendant contends, demonstrate that she has falsely reported her
income to the Internal Revenue Service, or misrepresented her income to obtain financial
assistance from the state. And to the extent the trial court found plaintiff’s testimony regarding
YK’s enrollment at the Manoogian School credible, that decision was quite understandable under
the circumstances. Defendant demonstrates no reason for this Court to interfere with the trial
court’s credibility determinations.
Affirmed. Having fully prevailed on appeal, taxable costs are awarded to plaintiff under
MCR 7.219.
/s/ Kirsten Frank Kelly
/s/ William B. Murphy
/s/ Michael J. Riordan
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