20231207_C364910_43_364910.Opn.Pdf ( 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
SAUL PARENT, UNPUBLISHED
December 7, 2023
Plaintiff-Appellee,
v No. 364910
Genesee Circuit Court
MELISSA MOUSEL, also known as MELISSA Family Division
HARDING, also known as MELISSA STUPYRA, LC No. 15-313925-DC
Defendant-Appellant.
Before: LETICA, P.J., and HOOD and MALDONADO, JJ.
PER CURIAM.
Defendant-mother Melissa Mousel appeals by right the trial court’s orders dismissing
cross-motions for change of custody that she and plaintiff-father Saul Parent filed, each seeking
sole custody of their minor child, HLP. The last custody order was entered in 2018, and it awarded
the parties joint custody. After years of failed attempts, the trial court dismissed both parents’
motions for sole custody because it found no proper cause or change of circumstances. The trial
court’s conclusion that the parties had not established proper cause or change of circumstances
contradicted its own findings and was against the great weight of the evidence. We vacate and
remand.
I. BACKGROUND
This case involves a years-long custody dispute between plaintiff-father and defendant-
mother over their only child, HLP. HLP was born in 2014, and this case started a few months
later. From the outset, plaintiff-father accused defendant-mother of engaging in a campaign of
parental alienation and deceit, and defendant-mother accused plaintiff-father of physically and
emotionally abusing HLP. The trial court initially ordered joint legal and physical custody of HLP.
The most recent custody order, entered in 2018, continued joint legal and physical custody.
Throughout the case, the parents have continued to accuse each other of various
improprieties and of violations of court orders, ranging from the trivial to the extreme. These
allegations resulted in multiple Children’s Protective Services (CPS) investigations, but each time
the investigation resulted in a finding that the concerns giving rise to the investigation were
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unsubstantiated. Because of the nature of this appeal, the specific details of the allegations are not
particularly relevant to the issues before us.
Multiple professionals involved with this case, including mental health professionals
examining HLP, the guardian ad litem, parenting time coordinator, and CPS workers, opined that
the parents’ animosity toward each other was harming HLP. This manifested in HLP having
challenges in school and telling different and conflicting stories about the parents’ behavior based
on who HLP was speaking to. Because of the parents’ mutual animosity and inability to co-parent,
the trial court entered numerous orders addressing many details of HLP’s life and of the parents’
relationships with HLP and each other. The subject matter of these orders ranged from how many
minutes HLP could be kept in time-out when being punished to whether HLP should continue
attending karate while playing baseball. At one point, the court observed that “the parents have
vacated” their “parental responsibilities unlike 99.9995% of my cases,” resolving to decide matters
on an issue-by-issue basis as the parties raised them. Despite the trial court’s repeated admonitions
to set aside their animosity for the benefit of HLP, the parties were clearly unable to agree even on
basic issues of child-rearing.
Eventually, both parties moved for sole custody, defendant-mother in 2019 and plaintiff-
father in 2021. In her motion, defendant-mother alleged that HLP had disclosed that plaintiff-
father physically abused him and that plaintiff-father disparaged HLP. In the father’s motion, he
alleged that defendant-mother attempted to alienate the father, made false allegations of abuse, and
forced HLP to make false statements. Although each parent sought sole custody, and the
allegations in the competing motions portrayed starkly different views of each parent, the parents
agreed on two things: first, that the other was solely at fault; and second, that shared custody could
not continue. The evidence showed that HLP was suffering as a result of the parties’ inability to
coexist peaceably and that his mental health would worsen if the situation was not resolved. The
evidence and allegations also showed that the parents could not agree on basic aspects of HLP’s
upbringing, including choosing a school system, coordinating medical care for HLP’s respiratory
issues, and extracurricular activities.
The trial court did not immediately decide either motion. Instead, it entered a series of
interim orders involving various aspects of the parties’ parenting on which they could not agree.
After several adjournments, the trial court held an evidentiary hearing in January 2023 on the
competing motions for sole custody.
At the hearing, the parents agreed that there had been a change of circumstances since the
trial court’s most recent custody order, entered in February 2018. The parties presented evidence
and blamed each other for the increasing—and increasingly apparent—harm to HLP. Despite the
numerous points of disagreement, the parties and the court agreed that HLP was being harmed.
At the conclusion of the hearing, the trial court found that the parties were incapable of
cooperation, were harming HLP, and were abusing court processes. In particular, it observed that
it had “never, in twenty-one years, seen a child put in this situation intentionally by parents where
litigation is the sole twenty-four-hour a day, seven days a week, 365 days a year purpose that every
human being the two of you encounter, including your child . . . .” In February 2023, it nonetheless
dismissed both custody motions because it found no proper cause or change of circumstances,
instead declaring that “[m]utually created, intentional conflict is not a basis for a new custody
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hearing” and that because it was not empowered to remove HLP from the care of both parents, it
would “not participate in this situation any longer.”
Defendant-mother appealed, and defendant-father has not opposed the appeal.
II. STANDARDS OF REVIEW
In custody matters, this Court applies three standards of review. Stoudemire v Thomas,
___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 360441); slip op at 4. We review the
trial court’s factual findings, including whether a party has shown proper cause or change of
circumstances, under the great-weight-of-the-evidence standard. Id. at ___; 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. at ___; slip op at 4 (quotation marks and citation omitted). We review
the trial court’s legal rulings for clear legal error. Id. at ___; slip op at 4. And we generally must
affirm the trial court’s discretionary rulings unless “the trial court’s decision is so palpably and
grossly violative of fact and logic that it evidence a perversity of will, a defiance of judgment, or
the exercise of passion or bias.” Id. at ___; slip op at 4 (quotation marks and citation omitted). In
general, a trial court abuses its discretion when it makes an error of law or when it fails to exercise
its discretion when called on to do so. Hein v Hein, 337 Mich App 109, 116; 972 NW2d 337(2021).
III. LAW AND ANALYSIS
On appeal, defendant-mother argues only that the trial court erred by failing to find proper
cause or a change of circumstances that would permit revisiting the 2018 custody order.
Defendant-mother does not argue—at this time—that she should be awarded sole custody of HLP,
but rather that one of the parents must be awarded sole custody of HLP. We agree.
A. LEGAL STANDARD FOR PROPER CAUSE AND CHANGE IN CIRCUMSTANCES
The Child Custody Act, MCL 722.21, et seq., provides specific procedural requirements
and required fact findings, under MCL 722.27(1)(c), for a trial court before it may modify a child’s
established custodial environment. Kuebler v Kuebler, ___ Mich App ___, ___; ___ NW2d ___
(2023) (Docket No. 362488); slip op at 16. “Among the purposes of the Child Custody Act ‘are
to promote the best interests of the child and to provide a stable environment for children that is
free of unwarranted custody changes.’ ” Id. at ___; slip op at 16, quoting Lieberman v Orr, 319
Mich App 68, 78; 900 NW2d 130 (2017).
To that end, “MCL 722.27 imposes a gatekeeping function on the trial court and provides
standards that a moving parent must satisfy to change custody or parenting time.” Kuebler, ___
Mich App at ___; slip op at 16. As provided in MCL 722.27(1)(c), when a party seeks to modify
a custody order, the moving party must establish proper cause or a change of circumstances by a
preponderance of the evidence before the court may consider whether the proposed modification
is in the child’s best interests. Lieberman, 319 Mich App at 81-82. To establish a change of
circumstances, the movant must prove by a preponderance of the evidence that “the conditions
surrounding the custody of the child, which have or could have a significant effect on the child’s
well-being, have materially changed” since the entry of the last custody order. Lieberman, 319
Mich App at 81-82 (quotation marks, citation, and emphasis omitted). “ ‘[T]he evidence must
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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., quoting Vodvarka v Grasmeyer, 259 Mich
App 499, 514; 675 NW2d 847 (2003) (alteration in original). To establish proper cause, “a movant
must prove by a preponderance of the evidence the existence of an appropriate ground for legal
action to be taken by the trial court. Lieberman, 319 Mich App at 82 (quotation marks and citation
omitted). Evidence of “proper cause” or “change of circumstances” that would warrant revisiting
a prior custody order must be relevant to at least one of the statutory “best interests” factors set
forth in MCL 722.23. Kuebler, ___ Mich App at ___; slip op at 16. It must also “be of such
magnitude to have a significant effect on the child’s well-being.” Id. at ___; slip op at 16 (quotation
marks and citation omitted). Only after satisfying this threshold showing can the court consider
whether modification is appropriate. Vodvarka, 259 Mich App at 508-509 (“The movant, of
course, has the burden of providing 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 (thus establishing the burden of proof) and conduct a review of the
best interest factors.”).1 The subsequent steps for a trial court to change a custodial environment
are not at issue; rather, defendant-mother argues that the trial court erred in its handling of the
threshold inquiry of proper cause or change of circumstances.
B. THE TRIAL COURT ERRED WHEN IT FOUND THE PARTIES HAD NOT
ESTABLISHED PROPER CAUSE
The trial court erred when it concluded that the parties had not established proper cause to
revisit the custody order.2 Its conclusion was contrary to the facts of this case and its own factual
1
After finding proper cause or change of circumstances, “the trial court must first determine
whether the proposed change would modify the established custodial environment of that child.”
Pierron v Pierron, 486 Mich 81, 92; 782 NW2d 480 (2010). If proper cause or change in
circumstances is established, a trial court still may not change a child’s established custodial
environment unless there is clear and convincing evidence that doing so is in the child’s best
interests. Griffin v Griffin, 323 Mich App 110, 118-120; 916 NW2d 292 (2018).
2
As an initial matter, defendant-mother argues that the parties agreed to the existence of a change
of circumstances or proper cause. The trial court would have erred by failing to abide by a
stipulation of fact entered into by the parties. Wolf v Mahar, 308 Mich App 120, 126-127; 862
NW2d 668 (2014). But here, there was no stipulation, let alone a stipulation of fact as opposed to
a mixed issue of fact and law. Defendant-mother relies on an order that stipulated only that no
showing of proper cause or change of circumstances would be required to schedule an evidentiary
hearing regarding the custody motions, not that proper cause or change of circumstances actually
existed. Otherwise, the parties generally agreed that shared custody could not continue, and they
both argued that proper cause or change of circumstances existed. Other than generally agreeing
that HLP was suffering and that the current shared custody situation was untenable, they agreed as
to little else and generally accused the other of committing most of the wrongdoing. Notably, both
parties requested an evidentiary hearing regarding whether there was proper cause or change of
circumstances, which suggests an absence of agreement as to the relevant underlying facts. The
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findings. As stated, unlike change in circumstances, which requires a change since the entry to
the last custody order, the focus of proper cause is the “significance of the facts or events” or “the
appropriateness of the grounds offered.” Vodvarka, 259 Mich App at 514-515. Although it might
be unusual for facts that already existed at the time of the prior custody order to amount to “proper
cause,” such situations are possible. Id.
Here, the parties did not agree as to who was to blame for HLP’s suffering, but the parties
and court agreed that one or both of the parents’ conduct was harming HLP. The trial court
however rejected the parties’ argument that there was proper cause because it believed the parties
were using court processes to further abuse HLP, and the trial court expressed the view that the
courts should not participate in that abuse. It further opined that neither party should be permitted
to have sole custody of HLP. While these findings and conclusions may have been appropriate
when analyzing whether a change in custody was in HLP’s best interest, they were inappropriate
bases for finding proper cause was not established, and they may have even supported a finding
that proper cause was established.
As stated, either “proper cause” or a “change of circumstances” must be relevant to the
best-interests factors set forth in MCL 722.23 and it must have a significant effect on the child’s
life. Kuebler, ___ Mich App at ___; slip op at 16. Here, the parental alienation, abuse of HLP,
fabrication of allegations of abuse, and effects of the parties’ mutual antagonism bear on several
of the best interest factors. See, e.g., MCL 722.23(f) (moral fitness of the parties), (j) (willingness
and abilities of parties to facilitate and encourage relationship between child and other parents),
(k) (domestic violence), (l) (any other factor considered relevant by the court). The trial court
could have—and should have—relied on any one of these factors to find that the parties established
proper cause by a preponderance of the evidence.
First, parental alienation implicates MCL 722.23(j). See In re Gorcyca, 500 Mich 588,
597 n 4; 902 NW2d 828 (2017) (noting that “[p]arental alienation is seemingly contrary to MCL
722.23(j)”). MCL 722.23(j) is the best-interests factor that requires consideration of “[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.” See
In re Gorcyca, 500 Mich at 597 n 4. Here, plaintiff-father has alleged that defendant-mother
attempted to alienate him from HLP. At points, this resulted in HLP making unsubstantiated
reports of abuse about plaintiff-father and inconsistent stories regarding plaintiff-father.
Each parent’s allegations that the other abused HLP bears on MCL 722.23(k). See In re
Green, ___ Mich ___, ___ n 11; ___ NW2d ___ (2023) (Docket No. 162260); slip op at 14 n 11.
MCL 722.23(k), in part, requires consideration of “whether domestic violence was directed against
fact that there may be “many apparent points of agreement between the parties” does not
necessarily establish a “formal stipulation for purposes of adjudication.” Brownell v Kilian,
unpublished per curiam opinion of the Court of Appeals, issued March 6, 2003 (Docket No.
231480), p 4. Although unpublished opinions of this Court are not binding, they may be considered
instructive or persuasive. Centria Home Rehab, LLC v Philadelphia Indemnity Ins Co, ___ Mich
App ___, ___; ___ NW2d ___ (2023) (Docket No. 359371); slip op at 8. We conclude that there
was no stipulation between the parties that the trial court was bound to accept.
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the child.” See In re Green, ___ Mich at ___ n 11; slip op at 14 n 11. Here, each parent alleged
that the other abused HLP. Defendant-mother alleged that plaintiff-father physically abused HLP,
leading to several CPS investigations and at least one police investigation. Plaintiff-father alleged
defendant-mother accused and attacked plaintiff-father for the purpose of alienating him from HLP
and that HLP had confided that defendant-mother threatened HLP into disparaging plaintiff-father.
To the extent the evidence supported false allegations or fabrication of allegations of abuse,
this would be relevant to MCL 722.23(f), “[t]he moral fitness of the parties involved.” See Butler
v Simmons-Butler, 308 Mich App 195, 205-206; 863 NW2d 677 (2014). Fabrications of abuse
would also be relevant to factor (j). Kuebler, ___ Mich App at ___; slip op at 25. Here, none of
the myriad CPS investigations resulted in substantiated allegations. Particular to plaintiff-father,
there was reliable evidence, including from CPS investigators, that HLP’s reports changed based
on who they were speaking to about plaintiff-father. Although the trial court had evidence of
possible false allegations of abuse, it appears not to have considered this as supporting proper
cause.
Finally, the parties’ mutual antagonism and its effects on HLP established proper cause.
We acknowledge that the parties’ mutual antagonism is not explicitly covered by any factor set
forth in MCL 722.23, but considering the undisputed fact that their mutual antagonism was causing
severe emotional harm to HLP, it properly falls within the scope of MCL 722.23(l) (“[a]ny other
factor considered by the court to be relevant to a particular child custody dispute”). Each of the
previously-refenced issues (i.e., parental alienation, allegations of abuse, and fabrication of abuse
allegations) may conceivably have required additional fact finding, but the trial court made
particular factual findings about the parties’ mutual antagonism and the deleterious effects on HLP.
The fact that HLP was suffering from mental-health problems—and that the problems were
worsening—shows that the issues between the parties were having a significant effect on his well-
being. Kuebler, ___ Mich App at ___; slip op at 16. The trial court concluded, and the evidence
overwhelmingly showed, that at least one of the parents must have been harming HLP based on
the sheer number of CPS reports alone, and the trial court actually found that both parties were
abusing HLP. This, more than the other factors, supported a finding of proper cause.
These circumstances are relevant to several of the best-interests factors and were having a
significant effect on HLP’s well-being. The trial court erred by failing to rely on them and its other
factual findings in order to find proper cause to revisit its 2018 custody order.3
Here, the trial court’s error appears to have been rooted in its attempts to maintain joint
custody. But there is no statutory presumption in favor of joint custody. Wellman v Wellman, 203
Mich App 277, 285-286; 512 NW2d 68 (1994). See also Fisher v Fisher, 118 Mich App 227, 232;
324 NW2d 582 (1982) (affirming the trial court’s authority—and obligation—to grant sole custody
where there is an irreconcilable breakdown and parents “are unable to cooperate and to agree
3
We therefore need not consider whether the trial court erred by failing to find a change of
circumstances. It is possible that although the parties’ animosity predated the 2018 custody order,
the effects of that animosity on HLP’s wellbeing had changed.
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generally concerning important decisions affecting the welfare of their children”).4 “In order for
joint custody to work, parents must be able to agree with each other on basic issues in child
rearing—including health care, religion, education, day to day decision making and discipline—
and they must be willing to cooperate with each other in joint decision making.” Fisher, 118 Mich
App at 232. Though uncommon, a court may grant sole custody if the parents have an
irreconcilable inability to agree regarding important questions of child rearing, even if each parent
individually would be a fit parent. Id. at 232-233. Further, changing joint custody to sole custody
may be appropriate if the parties’ inability to cooperate is harming the child. See Dailey v
Kloenhamer, 291 Mich App 660, 666-669; 811 NW2d 501 (2011).
In Fisher, this Court affirmed the trial court’s decision to grant one parent sole custody
because the underlying facts established that the parents’ marriage (and relationship) had broken
down and they were unable to cooperate or agree on decisions regarding the child’s welfare.
Fisher, 119 Mich App at 232-235. There, much of the disagreement related to overarching child
rearing issues, such as religious activities and expressions of belief. Id. at 234. In affirming the
order granting sole custody, this Court observed that concerns regarding the best interests of the
child were paramount and an award of joint custody would be injurious to the child. Id. Here, the
parties’ inability to cooperate or agree does not necessarily relate to religion, but it relates to almost
every aspect of the child’s upbringing and has resulted in court intervention on some of the most
basic aspects of parenting.
Defendant-mother argues that Fisher required the trial court to determine which parent
should have sole custody of HLP and erred by refusing to award either party sole custody. The
question of sole custody, however, relates to the trial court’s analysis of the best interests of the
child, Dailey, 291 Mich App at 666-669, considerations that the trial court never reached. We
acknowledge MCL 722.26a(1) expressly states that “[t]he court shall determine whether joint
custody is in the best interest of the child” based on both a consideration of the “best interests”
factors set forth in MCL 722.23 and the parents’ ability to cooperate and reach agreements as to
important decisions concerning the child’s welfare. But the question before this Court is whether
the trial court erred when it found no proper cause or change of circumstances that would permit
revisiting the 2018 custody order. As stated above, we conclude that the trial court erred in finding
proper cause was not established.
IV. CONCLUSION
The trial court’s order dismissing the parties’ custody motions is vacated because proper
cause exists to revisit the 2018 custody order, and the case is remanded for further proceedings,
including consideration of whether the relief requested in the motions for sole custody is in HLP’s
4
Although Fisher is not strictly binding pursuant to MCR 7.215(J)(1) because it was issued before
November 1, 1990, as a published opinion, it nevertheless “has precedential effect under the rule
of stare decisis” pursuant to MCR 7.215(C)(2). See Wells Fargo Rail Corp v Dep’t of Treasury,
___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 359399); slip op at 10 n 2.
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best interests. On remand, the trial court shall consider up-to-date information. Butters v Butters,
510 Mich 1096-1097 (2022).5 We do not retain jurisdiction.
/s/ Anica Letica
/s/ Noah P. Hood
/s/ Allie Greenleaf Maldonado
5
“An order that is a final Supreme Court disposition of an application and that contains a concise
statement of the applicable facts and reasons for the decision is binding precedent.” Steele v
Winfield, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 357935); slip op at 4.
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