Leonora Gjergji v. Berti Gjergji ( 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
LEONORA GJERGJI, UNPUBLISHED
December 21, 2023
Plaintiff-Appellee,
v No. 366459
Oakland Circuit Court
Family Division
BERTI GJERGJI, LC No. 2022-512803-DM
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.
PER CURIAM.
Defendant appeals as of right the judgment of divorce, which awarded plaintiff sole
legal and physical custody of the parties’ two minor children, SG and VG, and ordered
defendant to pay $1,436 in monthly child support in accordance with the Michigan Child
Support Formula. We affirm.
I. FACTUAL BACKGROUND
In April 2022, plaintiff filed a verified complaint for divorce contending (1) the parties
were married on October 12, 2014, in Troy, Michigan, (2) the parties ceased to live as husband
and wife on April 14, 2022, due to ongoing physical abuse and verbal abuse by defendant, (3)
SG and VG currently resided with plaintiff, and plaintiff was the primary caretaker for the
minor children since their birth, and (4) sole legal and physical custody of SG and VG should
be awarded to plaintiff. Plaintiff additionally filed an ex parte motion for interim sole custody,
parenting time, and child support. In her motion, plaintiff advanced (1) defendant failed to
adequately participate in the minor children’s lives, (2) defendant perpetuated domestic
violence against plaintiff in the presence of SG and VG, which included one incident in 2017
when defendant assaulted plaintiff while she was holding 6-month-old SG resulting in
defendant’s conviction of being a disorderly person, (3) plaintiff decided to file for divorce
following an episode on April 11, 2022, during which the family was on a trip in Traverse City,
Michigan, and defendant yelled at, spit on, and threw a pillow at plaintiff, which scared the
minor children, and (4) defendant posed a risk to the wellbeing of SG and VG, and plaintiff
was fit and competent to maintain sole interim custody of the minor children.
In May 2022 defendant filed a counterclaim for divorce, contending joint legal custody
and equal parenting time were in the minor children’s best interests, and there was a breakdown
-1-
of the marital relationship of the parties. Defendant also filed an answer to plaintiff’s complaint
for divorce, generally denying the domestic violence allegations, and advancing (1) plaintiff
initiated arguments with defendant, and plaintiff punched, screamed at, and spat on defendant,
(2) plaintiff remained with the family following the Traverse City incident until the parties
returned to their primary residence, then left with the minor children, and (3) joint legal and
physical custody of the minor children was in the best interests of SG and VG.
The court held a two-day bench trial and issued its judgment of divorce, opinion and
order, and uniform child support order. The trial court granted plaintiff legal and physical
custody of SG and VG, supervised parenting time for defendant through Impact Counseling
Services contingent upon defendant’s mandatory participation with a licensed psychologist,
social worker, or counselor, and child support in the amount of $1,436 per month, with
defendant’s gross income listed at $72,000 and plaintiff’s income listed at zero. With regard
to child custody, the court first determined that an established custodial environment existed
with plaintiff because plaintiff was the minor children’s primary caregiver, and defendant failed
to communicate with or visit SG and VG since June 2022. Per the best-interests factors under
MCL 722.23, the trial court determined that all of the applicable factors overwhelmingly
favored plaintiff, and concluded by clear and convincing evidence that it was not in SG’s and
VG’s best interests to change the established custodial environment with plaintiff. Concerning
child support, the trial court determined it would not impute income to unemployed plaintiff;
however, it determined defendant’s annual gross income to be $72,000, and imposed
defendant’s child support obligation accordingly. Defendant appeals.
II. CHILD SUPPORT
Defendant argues that the trial court erred when it calculated defendant’s child support
obligation because it incorrectly determined defendant’s gross income was $72,000, which was
contrary to defendant’s income tax filings and the evidentiary record. We disagree.
Child support orders are reviewed for an abuse of discretion. Clarke v Clarke, 297
Mich App 172, 178-179; 823 NW2d 318 (2012). “An abuse of discretion occurs when a court
selects an outcome that is not within the range of reasonable and principled outcomes.”
Carlson v Carlson, 293 Mich App 203, 205; 809 NW2d 612 (2011) (citation omitted). Whether
the trial court properly applied the Michigan Child Support Formula (MCSF) is a question of
law that we review de novo. Clarke, 297 Mich App at 179. The trial court’s factual findings,
including those regarding the calculation of income available for support, are reviewed for clear
error. Id. “A finding is clearly erroneous if this Court, on all the evidence, is left with a definite
and firm conviction that a mistake was made; the appellant bears the burden of showing that a
mistake was made.” Stallworth v Stallworth, 275 Mich App 282, 284; 738 NW2d 264 (2007).
“The Michigan Legislature has required that when a court orders child support as part
of a divorce judgment, ‘the court shall order child support in an amount determined by
application of the child support formula developed by the state friend of the court bureau’
unless to do so would be ‘unjust or inappropriate’ and the trial court makes certain specified
findings ‘in writing or on the record . . . .’ ” Stallworth, 275 Mich App at 283-284, quoting
MCL 552.605(2). “[T]he first step in determining a child-support award is to ascertain each
parent’s net income by considering all sources of income.” Stallworth, 275 Mich App at 284;
2021 MCSF 2. The term “net income” is defined as “all income minus deductions and
adjustments permitted by this manual.” 2021 MCSF 2.01(A). Income is broadly defined to
include wages and “[e]arnings generated from a business, partnership, contract, [or] self-
-2-
employment.” 2021 MCSF 2.01(C)(1)-(2). “Where income varies considerably year-to-year
due to the nature of the parent’s work, use three years’ information to determine that parent’s
income.” 2021 MCSF 2.02(B).
During the bench trial proceedings, defendant testified that he was employed as a car
salesman at a family business called the House of Cars, and defendant was paid in cash based
on sales. Defendant reported that, while the $1,000 weekly wage figure was previously a true
representation of his income, business has since stalled. However, defendant further predicted
that he would return to earning approximately $1,000 per week. Defendant deposits some, but
not all, the cash he receives into the parties’ joint bank account. Per an admitted bank statement
detailing transactions between August 19, 2022 and September 21, 2022, defendant deposited
$4,171 into the joint bank account. Between September 2022 and October 2022, defendant
deposited an additional $6,130, and between December 2021 and February 2023, defendant
deposited between $3,400 and $6,000 on a monthly basis. Defendant further stated that his
2021 joint income tax return listed his adjusted gross income as $43,238.
Plaintiff testified regarding the financial status of the parties that she shared a joint bank
account with defendant, with defendant depositing at least $1,000 per week, primarily to pay
off their two credit cards. Plaintiff further expressed that since filing the divorce defendant
consistently fulfilled his child support obligations of $500 per month. However, plaintiff
believed this amount was insufficient. Following the presentation of the parties’ testimony,
bank records, and tax statements, the trial court made the following findings in its opinion and
order after trial:
Defendant-Father’s trial testimony regarding his income was vague and
confusing. Defendant-Father testified that he is paid “cash” and deposits some,
but not all, the cash he receives into the parties’ joint account. Plaintiff-Mother
encourages the Court to estimate Defendant-Father’s income to be $72,000 per
year ($6,000 monthly) based on evidence regarding deposits into the joint bank
account and his testimony that he does not deposit all his income into the joint
account. The Court agrees and holds that child support shall be calculated with
Defendant-Father’s income at $72,000 and Plaintiff-Mother’s income at $0.00.
The court’s determination regarding the appropriate figure concerning defendant’s income is
supported by the various financial documents admitted during the instant proceedings, in
addition to the parties’ testimony, which established defendant’s true earnings were not entirely
reflected in the cash deposits in the parties’ joint accounts, which ranged from $3,400 to $6,000
on a monthly basis. See Stallworth, 275 Mich App at 286 (providing the trial court reasonably
deduced that the defendant derived additional income that he did not report per the plaintiff’s
testimony regarding the defendant’s cash earnings, which factored into the court’s child support
calculation). While defendant advances he filed a motion contesting the child support
calculations to inform the court he was unable to afford the child support payments due to
expenses related to providing care for his father, who suffered from cancer, neither the
defendant’s motion nor any other filing in the lower court featured any discussion regarding
medical fees associated with defendant’s father.
Defendant further advances the trial court judge exhibited inappropriate behavior when
she listed false statements in the judgment of divorce, particularly with regard to defendant’s
income. Addressing defendant’s misconduct allegations directed at the trial court, defendant
fails to detail exactly what purported inappropriate behavior occurred, and the evidentiary
-3-
record does not demonstrate the trial court exhibited bias, incorrectly enumerated the
underlying facts, or erroneously applied the law throughout the proceedings. Consequently,
defendant’s claim is meritless. The trial court did not err, or otherwise act inappropriately,
when it calculated defendant’s child support obligation because the evidentiary record, which
included the parties’ joint bank statements and the parties’ testimony, demonstrated that
defendant earned approximately $6,000 per month, which amounted to $72,000 in yearly
wages. Furthermore, the court calculated defendant’s child support obligation in accordance
with the MCSF and MCL 552.605.
III. CHILD CUSTODY
Defendant argues that the trial court erred when it determined it was in the minor
children’s best interests to award plaintiff sole legal and physical custody because it made
findings against the great weight of the evidence. We disagree.
In matters involving child custody, 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. This Court will not interfere with the trial
court’s factual findings unless the facts clearly preponderate in the opposite
direction. Discretionary rulings, including a trial court’s decision to change
custody, are reviewed for an abuse of discretion. In child custody cases
specifically, an abuse of discretion retains the historic standard under which the
trial court’s decision must be palpably and grossly violative of fact and logic.
Clear legal error occurs when the trial court incorrectly chooses, interprets, or
applies the law. This Court reviews the trial court’s determination regarding a
child’s best interests for clear error. This Court gives deference to the trial
court’s factual judgments and special deference to the trial court’s credibility
assessments. [Brown v Brown, 332 Mich App 1, 8-9; 955 NW2d 515 (2020)
(quotation marks and citations omitted).]
In Michigan, the Child Custody Act of 1970, MCL 722.21 et seq., governs the issue of
child custody. Pursuant to MCL 722.26a(1), in custody disputes the parents shall be advised
of joint custody and “[a]t the request of either parent, the court shall consider an award of joint
custody, and shall state on the record the reasons for granting or denying a request.” “Joint
custody” means an order of the court in which one or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the
parents.
(b) That the parents shall share decision-making authority as to the important
decisions affecting the welfare of the child. [MCL 722.26a(7).]
When a trial court examines a request for joint custody, it
. . . shall determine whether joint custody is in the best interest of the child by
considering the following factors:
(a) The factors enumerated in [MCL 722.23].
-4-
(b) Whether the parents will be able to cooperate and generally agree concerning
important decisions affecting the welfare of the child. [MCL 722.26a(1).]
“[T]he family court must consider all the factors delineated in MCL 722.23 and
explicitly state its findings and conclusions with respect to each of them.” McRoberts v
Ferguson, 322 Mich App 125, 134; 910 NW2d 721 (2017) (citation omitted). The “ ‘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. [Bofysil v Bofysil, 332 Mich App 232, 244-245; 956 NW2d
544 (2020), quoting MCL 722.23.]
“The trial court need not necessarily engage in elaborate or ornate discussion because
brief, definite, and pertinent findings and conclusions regarding the contested matters are
-5-
sufficient.” Foskett v Foskett, 247 Mich App 1, 12; 634 NW2d 363 (2001). Furthermore,
regarding MCL 722.26a(1)(b), this Court has provided:
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. If two equally capable parents whose
marriage relationship has irreconcilably broken down are unable to cooperate
and to agree generally concerning important decisions affecting the welfare of
their children, the court has no alternative but to determine which parent shall
have sole custody of the children. [Bofysil, 332 Mich App at 249 (quotation
marks and citation omitted).]
The trial court, in its opinion and order, evaluated each of the best-interests factors
enumerated under MCL 722.23, which broadly favored plaintiff, and it further determined the
parties generally appeared unable to cooperate and agree on critical welfare decisions
concerning SG and VG. With regard to MCL 722.23(a), which considers the love, affection,
and other emotional ties existing between the parents and the minor children, the court noted
plaintiff’s continued care for SG and VG, which included the “heavy lifting” regarding
parenting. While defendant testified he consistently participated in the minor children’s lives,
which included overseeing their day-to-day care and attending SG’s and VG’s extracurricular
activities, plaintiff asserted she was solely responsible for the care of the minor children
throughout her marriage to defendant, and defendant did not contribute to feeding, bathing, or
the bedtime routine of SG and VG. See Berger v Berger, 277 Mich App 700, 705; 747 NW2d
336 (2008) (stating, “This Court will defer to the trial court’s credibility determinations, and
the trial court has discretion to accord differing weight to the best-interest factors”).
Furthermore, defendant only set aside time for lunch on Sundays to spend with the children.
Addressing MCL 722.23(b), capacity and disposition to give children love, affection,
guidance, etc., the trial court determined this factor favored plaintiff because she frequently
provided for the children’s needs while defendant solely wished to provide for his son, VG,
and expressed concerns that his daughter, SG, was being guided towards being a “free woman.”
Plaintiff testified that she believed defendant posed a risk to SG and VG due to his unstable
mental health and paranoia. Plaintiff further expressed defendant’s discriminatory remarks,
which ranged from inappropriate comments regarding various religions to race, would
negatively impact SG and VG, and plaintiff did not want the children to believe his delusions.
While plaintiff testified that she does not believe defendant would physically harm the children,
she did not believe defendant was capable of overseeing the care of SG and VG without
supervision, due to his inexperience with parenting the minor children.
Concerning MCL 722.23(c), the parties’ capacity and disposition to provide the
children food, clothing, etc., the court determined this factor favored plaintiff because she was
able to provide for SG’s and VG’s needs with support from her family, while defendant, who
was employed, refused certain dental care for SG. Plaintiff testified that she received financial
support from her family, in addition to the $500 interim child support payments, to adequately
provide SG and VG with any necessities. Plaintiff also planned on acquiring her own residence
with the children after obtaining employment, and plaintiff observed a positive shift in SG’s
and VG’s attitudes after leaving defendant.
-6-
The trial court further opined that MCL 722.23(d), concerning the length of time the
children have lived in stable, satisfactory environment, favored plaintiff because the minor
children resided with plaintiff at their maternal grandmother’s house since April 2022, and
defendant failed to interact or communicate with SG and VG since June 2022. Plaintiff stated
she provided the children with a regular daily routine, which included making breakfast with
SG and VG, dropping SG off at school with VG in the car, returning home with VG for
playtime and naptime, and taking SG to dance once per week. Defendant had not attempted to
see the children since June 2022.
The court additionally determined that MCL 722.23(e), permanence of existing or
proposed custodial homes, favored plaintiff as she remained the children’s primary caregiver,
with no plans to change her immediate relationship status. Plaintiff testified that she did not
plan on pursuing a romantic relationship in the near future, however, defendant informed
plaintiff he was currently in a relationship.
As to MCL 722.23(f), the moral fitness of the parties, the trial court found this also
favored plaintiff due to defendant’s history of domestic violence, racist and inappropriate
emails to plaintiff’s counsel, and 2017 misdemeanor for “slapping” plaintiff. There was
additionally extensive testimony during the bench-trial proceedings regarding defendant’s
inappropriate conduct throughout his marriage and the divorce proceedings. Defendant
admitted that between June 3, 2022, and March 20, 2023, defendant sent over 500 emails to
plaintiff’s counsel, which were disrespectful in nature and included statements such as, “I love
you, I’d like to marry you, I’d like to [f**k] you.” Defendant further testified, regarding the
text message exchanges between himself and plaintiff, that he sent messages to plaintiff stating,
“I know you’re not worth it,” and, “It could have always done different. To shoot you, it’s not
that I can’t do it,” which defendant denied was a threat because he never intended to shoot
plaintiff, but attributed it to airing his frustrations regarding the divorce.
With regard to MCL 722.23(g), the parties’ health, the trial court determined this factor
favored plaintiff because defendant physically and emotionally abused plaintiff, and defendant
believed various conspiracies regarding his military involvement, the surveillant nature of
technology, and being of a “chosen” nature. While defendant advances the testimony of Dr.
Stephanie Pyrros-Hensen demonstrated he did not suffer from any mental health issues, Dr.
Pyrros-Hensen asserted it was in the minor children’s best interests to proceed with supervised
parenting time with defendant due to his past concerning conduct. Moreover, plaintiff detailed
defendant’s paranoia; defendant would assert “the neighbor’s dogs are listening to us” or “some
kind of radiation in the air that’s causing us to act certain ways[,]” and defendant filed a
complaint with the West Bloomfield Police Department in 2020 alleging persons were pursuing
him. Defendant destroyed property on numerous occasions, which included the family’s
television and his personal cellphone, under the belief these items were surveillance devices.
Furthermore, defendant expressed his views regarding various conspiracy theories in his
closing argument, and defendant expressed, “since [SG] was born, we haven’t seen a good
day.”
The trial court additionally concluded MCL 722.23(h), the children’s home,
community, and school record, favored plaintiff as SG and VG resided in Macomb County
with plaintiff, where SG attended elementary school and thrived. Plaintiff testified that SG
was excelling in school and participating in a number of extracurricular activities, and the
majority of SG’s friends also resided in Macomb County.
-7-
The court noted it was unable to evaluate MCL 722.23(i), the reasonable preference of
the children, because SG and VG were not interviewed. The trial court determined MCL
722.23(j), the parties’ willingness and ability to facilitate and encourage a continuing
relationship between the children and other parent, favored plaintiff because she expressed
concerns regarding SG’s and VG’s wellbeing under defendant’s care, while defendant failed
to interact with his children since June 2022. Defendant additionally testified that it was in the
children’s best interests for defendant to have full custody of VG, while plaintiff should have
full custody of SG, as opposed to having the minor children reside together. Defendant asserted
he would reserve time for the siblings to spend together.
The court also found MCL 722.23(k), domestic violence, favored plaintiff due to
defendant’s conduct as a perpetrator of physical and emotional violence towards plaintiff.
Plaintiff detailed that the domestic violence incident, which led to plaintiff filing for divorce,
occurred at approximately 1:00 a.m. or 2:00 a.m. in a hotel room while the family was on a trip
to Traverse City, Michigan. VG accidently fell off the bed, defendant proceeded to yell and
blame SG, in addition to throwing a pillow at plaintiff, which caused the minor children to cry.
Plaintiff further testified there were previous altercations, including one event in May 2017,
during which, “[defendant] was very aggressive. I was holding our daughter in my hand. I
was on the stairs, he punched me and he got very aggressive and then my face was all black
and blue and then I just waited for him to leave and then I finally called my family to leave and
make a report.” Plaintiff further shared she received a number of threatening text messages
from defendant, in addition to concerning physical conduct during the last visitation with
defendant, SG, and VG; defendant attempted to force open plaintiff’s car door, and defendant
informed plaintiff, “he was gonna put two in my head and did the gun like symbol.” Plaintiff
expressed she continued to feel threatened and uncomfortable around defendant following this
interaction.
The trial court opined, regarding the parties’ potential to cooperate and generally agree
concerning important decisions affecting the welfare of SG and VG, that the high degree of
animosity between plaintiff and defendant would prohibit the effective communication
required for joint legal custody. See Wright v Wright, 279 Mich App 291, 299; 761 NW2d 443(2008) (providing when “the record reflects a deep-seated animosity between the parties and
an irreconcilable divergence in their opinions about how to foster each child’s well-being,”
joint legal custody is “not an option”). Plaintiff additionally testified that she did not believe
she would be able to maintain a healthy coparenting relationship with defendant because of his
repeated inability to acknowledge plaintiff’s parenting opinions. Because the trial court
properly addressed each best-interest factor, which included mention of the parties’ inability to
coparent, and explicitly connected these findings to its custody determination, it did not commit
clear legal error.
-8-
While defendant claims the trial court’s custody determination was contrary to the
Friend of the Court recommendation, the Friend of the Court endorsed awarding plaintiff sole
legal and physical custody of SG and VG. The record demonstrates the court appropriately
concluded, by clear and convincing evidence, that it was not in the minor children’s best
interests to change the established custodial environment with plaintiff, and it awarded plaintiff
sole legal and physical custody of SG and VG in accordance with the great weight of the
evidence. Therefore, defendant has failed to demonstrate that he is entitled to relief.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Michael F. Gadola
-9-