Patrick J Greenway Sr v. Leslie a Lubben ( 2023 )

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
PATRICK J. GREENWAY, SR., UNPUBLISHED
September 21, 2023
Plaintiff-Appellee,
v No. 365635
Kent Circuit Court
LESLIE A. LUBBEN, LC No. 21-003555-DC
Defendant-Appellant.
Before: SWARTZLE, P.J., and O’BRIEN and FEENEY, JJ.
PER CURIAM.
Plaintiff and defendant are the biological parents of a child that is subject to the parties’
Consent Judgment for Custody. The trial court denied defendant a change in the legal custody of
the child. We affirm.
The parties entered into a Consent Judgment for Custody of the child that awarded plaintiff
sole legal custody, ordered that the parties would share joint physical custody consistent with the
judgment’s written schedule, ordered that communication between the parties was confined to
“Our Family Wizard,” and ordered that the issue of child support would be referred to the Friend
of the Court for a further recommendation. Specifically, regarding legal custody, the Consent
Judgment ordered that defendant was only permitted to “attend and ask questions, but not
participate in decisions, in the minor child’s medical appointments using a virtual option.”
Defendant was held in contempt for violating the Consent Judgment for Custody twice:
once for directly contacting plaintiff outside of “Our Family Wizard,” and once for physically
taking the child to a medical appointment in which she inquired about the child’s vaccination
options.
Defendant moved for joint legal custody of the child, and she argued that plaintiff had
failed to facilitate appropriate communication about the child’s health regarding the child’s ability
to get vaccinated for COVID-19 and the flu. The trial court found that there was no proper cause
or change in circumstance to modify custody, and instead the facts demonstrated that defendant
continued to overstep her custody as ordered in the Consent Judgment for Custody.
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Defendant now appeals on the limited issue of the trial court denying her request to change
the legal custody of the child. This Court applies “three standards of review in custody cases.”
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000):
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. [Vodvarka v Grasmeyer, 259
Mich App 499, 507-508; 675 NW2d 847 (2003) (cleaned up).]
“All custody orders must be affirmed on appeal unless the circuit court’s findings were against the
great weight of the evidence, the circuit court committed a palpable abuse of discretion, or the
circuit court made a clear legal error on a major issue.” Lieberman v Orr, 319 Mich App 68, 76-
77; 900 NW2d 130 (2017) (cleaned up).
With regard to custody and parenting-time orders, the trial court may “[m]odify or amend
its previous judgments or orders for proper cause shown or because of change of circumstances.”
MCL 722.71(1)(c). The party seeking to modify or amend the order must “establish proper cause
or change in circumstances, [otherwise] the court is precluded from holding a child custody
hearing.” Vodvarka, 259 Mich App at 508. “The movant . . . has the burden of proving by a
preponderance of the evidence that either proper cause or a change of circumstances exists before
the trial court can consider whether an established custodial environment exists and conduct a
review of the best-interest factors.” Id. at 509.
“[I]f the movant does not establish proper cause or change in circumstances, then the court
is precluded from holding a child custody hearing[.]” Id. at 508. It is not the case that any fact
relevant to the best-interest factors will constitute sufficient cause. “Rather, the grounds presented
must be legally sufficient, i.e., they must be of a magnitude to have a significant effect on the
child’s well-being to the extent that revisiting the custody order would be proper.” Id. at 512. This
Court has defined the term “proper cause” to mean “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.
Defendant argues that this Court stated in Pennington v Pennington, 329 Mich App 562;
944 NW2d 131 (2019), that a disagreement concerning the medical care of the child constitutes
proper cause to change legal custody. Defendant ignores, however, that this Court vacated the
trial court’s order that awarded the defendant primary physical custody after the parties disagreed
about whether the child’s medical evaluations were necessary, id. at 573-574, holding that the
parties’ disagreement did not amount to a change in circumstance, id. at 575-576.
In this case, defendant does not articulate the disagreement that she had with plaintiff
concerning the child’s medical care, and she does not argue that the disagreement affected the
well-being of the child. Instead, defendant argues that she is a more fit parent than plaintiff because
plaintiff engaged in actions to make her look unfit. Defendant also argues that the trial court relied
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on her contemptuous behavior to deny the change in legal custody, but, when read in context, the
trial court held that the only change in circumstances found by the trial court included defendant’s
inappropriate behavior. Simply put, defendant does not demonstrate that any disagreement
between her and plaintiff necessitated a change in legal custody.
Defendant also argues that this Court held in Wellman v Wellman, 203 Mich App 277; 512
NW2d 68 (1994), that joint legal custody is appropriate even when one parent is granted sole-
physical custody. Defendant ignores, however, that this Court held that joint physical custody is
not presumed when there is joint legal custody, id. at 285, and Wellman does not stand for the
proposition that she is entitled to joint legal custody without demonstrating that a change in custody
would be in the child’s best interest. Defendant argues that she is in a position “far superior to that
of the noncustodial parent in Wellman,” but she fails to establish how a change of legal custody
would benefit the child except to state that it would be beneficial for the child to see her more
often.
Accordingly, the trial court did not err in denying defendant’s motion to change the legal
custody of the child.
Affirmed.
/s/ Brock A. Swartzle
/s/ Colleen A. O’Brien
/s/ Kathleen A. Feeney
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