Tanner Milner v. Cali Roseberry ( 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
TANNER MILNER, UNPUBLISHED
December 22, 2022
Plaintiff-Appellee,
v No. 361921
Clinton Circuit Court
CALI ROSEBERRY, Family Division
LC No. 17-027114-DC
Defendant-Appellant.
Before: M. J. KELLY, P.J., and MURRAY and RIORDAN, JJ.
PER CURIAM.
Defendant, Cali Roseberry, appeals as of right the trial court’s order denying Roseberry’s
motion to change custody of the parties’ minor child, TJM. Roseberry argues that the trial court
erred by finding that there was not proper cause or change of circumstances sufficient to warrant
a modification of custody. For the reasons stated in this opinion, we affirm.
I. BASIC FACTS
Plaintiff, Tanner Milner, is TJM’s father. In 2017, Roseberry and Milner separated.
Pursuant to a stipulated order Roseberry and Milner shared joint legal and physical custody of
TJM. In June 2021, Milner filed a motion to change custody, alleging that TJM was unsafe while
in Roseberry’s care because (1) TJM had an inconsistent sleep schedule due to Roseberry worked
as a delivery driver from 4:00 p.m. until 11:00 p.m. and took TJM with her on her routes; (2) TJM
missed a significant amount of school and was late frequently because Roseberry did not wake her
up on time; and (3) Roseberry’s boyfriend, who had domestic violence and substance abuse issues,
was in her home frequently. In July 2021, the trial court granted Milner’s motion and awarded
him sole legal and primary physical custody of TJM.
In April 2022, Roseberry filed a motion to change custody, requesting that the trial court
return to the custody arrangement that was in place prior to July 2021. She argued that she obtained
a new job that would not force her to work late at night or bring TJM with her to work, and as a
result, TJM could have a normal sleep schedule and get to school on time. She also asserted that
her boyfriend made significant changes since the last custody order, including by remaining sober
and obtaining therapy to address his domestic violence. Finally, Roseberry alleged that Milner
-1-
alienated TJM from her, that he emotionally abused TJM, and that TJM suffered from physical
injuries because of Milner’s neglect. Specifically, Roseberry alleged that Milner alienated TJM
because he blocked Roseberry’s phone number from TJM’s phone, limited the amount of time
TJM and Roseberry could speak over the phone, “demean[ed]” Roseberry, and refused to
immediately take TJM to the hospital for various injuries.
The trial court held a hearing to determine whether a full evidentiary hearing was needed
to address Roseberry’s motion to change custody. Roseberry was permitted to make an offer of
proof regarding what evidence would be presented should an evidentiary hearing be held. During
the hearing, Roseberry admitted that TJM was doing well in school, that TJM had no behavioral
problems, and that Milner had not denied Roseberry any parenting time or interfered with her and
TJM’s communications. In turn, Milner explained that he had a screen time limit on TJM’s phone,
but that if she was on a phone call with Roseberry when her screen time limit was reached for the
day, he would allow her to have additional time to speak with Roseberry. Roseberry admitted that
this happened at least once. There were also allegations that TJM was late for school multiple
times. However, Milner stated that TJM was late only twice and the other “tardies” were excused.
Finally, Roseberry’s lawyer asserted that Roseberry’s boyfriend was sober and had received
therapy so he was no longer an impediment to Roseberry having custody of TJM.
The trial court determined that Roseberry had not established a sufficient change of
circumstances to warrant a change of custody because the allegations did not materially and
substantially impact TJM. As a result, the trial court denied the motion. Thereafter, the court
denied Roseberry’s motion for reconsideration.
II. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
A. STANDARD OF REVIEW
Roseberry argues that the trial court erred by determining that there was not proper cause
or a change or circumstances sufficient to warrant revisiting the custody issue. In particular, she
asserts that her boyfriend’s self-improvement and her new employment amounted to a change of
circumstances that would have a significant effect on TJM’s well-being. “The trial court’s
determination whether a party has demonstrated proper cause or a change of circumstances is . . .
reviewed under the great-weight-of-the-evidence standard.” Stoudemire v Thomas, ___ Mich App
___, ___; ___ NW2d ___ (2022) (Docket No. 360441); slip op at 4. “A finding of fact is against
the great weight of the evidence if the evidence clearly preponderates in the opposite direction.”
Id. (quotation marks and citation omitted).
B. ANALYSIS
Under the Child Custody Act, MCL 722.21 et seq., a trial court may “modify or amend its
previous judgments or orders for proper cause shown or because of change of circumstances . . .”
MCL 722.27(1)(c). “[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.” Vodvarka v Grasmeyer, 259 Mich App 499, 511; 675 NW2d 847(2003). A change in circumstances is demonstrated when, “since the entry of the last custody
-2-
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. “The 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. A movant must present evidence
that the circumstances have changed since the entry of the last custody order to demonstrate a
change of circumstances. Id. at 514.
In this case, the trial court concluded that Roseberry did not demonstrate proper cause or a
change of circumstances that had or could have a significant effect on TJM’s well-being. The trial
court rejected Roseberry’s arguments, concluding that Milner did not alienate TJM from her
mother or deny her parenting time, Milner did not emotionally abuse TJM, Milner did not act
inappropriately in caring for TJM’s injuries,1 and the communications referenced by Roseberry
were between the parties and did not substantially impact TJM’s well-being. Those findings are
supported by the record.
Moreover, the alleged positive improvements in Roseberry’s boyfriend’s life and her new
employment did not amount to a change of circumstances that had or could have a significant
effect on TJM’s well-being. See id. at 513. The trial court’s conclusion that Roseberry’s boyfriend
had not improved his substance abuse and domestic violence issues was not against the great
weight of the evidence given that he had been sober for only a short time. Even accepting
Roseberry’s allegations that her boyfriend had substantially changed, none of these changes
addressed TJM’s fears related to the boyfriend, or explained how Roseberry’s boyfriend changed
his negativity toward TJM.
In addition, Roseberry’s change in employment constituted a normal life change, which is
insufficient to demonstrate a change of circumstances to warrant modification of custody. See id.
at 513-514. Even if Roseberry’s change in employment amounted to more than a normal life
change, she still failed to demonstrate that this change had or would have a significant effect on
TJM’s well-being. See id. If Roseberry had joint custody of TJM, the fact that she changed her
job would not have a significant effect on TJM’s well-being because TJM was already doing well
in school, did not have behavioral problems, and was attending school consistently and on time,
aside from two late attendances.
In sum, without evidence demonstrating that these purported changes would affect TJM’s
well-being, Roseberry’s motion failed to show proper cause or a change of circumstances
warranting revisiting custody or even holding a hearing to determine whether Roseberry met that
threshold. See id. at 512; MCR 3.210(C)(8). Therefore, the trial court’s determination was not
against the great weight of the evidence.
1
Two of the injuries, in fact, occurred before the prior custody order, and as a result, the trial court
did not consider them.
-3-
Affirmed.
/s/ Michael J. Kelly
/s/ Christopher M. Murray
/s/ Michael J. Riordan
-4-