Jaimey Noel Roth v. Sheryl Lynn Roth

STATE OF MICHIGAN
COURT OF APPEALS
JAIMEY NOEL ROTH, UNPUBLISHED
January 20, 2015
Plaintiff-Appellee,
v Nos. 312008; 316003; 321564
Oakland Circuit Court
SHERYL LYNN ROTH, LC No. 2011-784597-DM
Defendant-Appellant.
Before: FORT HOOD, P.J., and HOEKSTRA and O’CONNELL, JJ.
PER CURIAM.
These consolidated cases arise from a bitter divorce dispute between plaintiff, Jaimey
Noel Roth, and defendant, Sheryl Lynn Roth. In Docket No. 312008, Sheryl Roth appeals as of
right the trial court’s May 9, 2012 judgment of divorce. In Docket No. 316003, Sheryl Roth
appeals by leave granted the trial court’s April 9, 2013 order terminating spousal support. In
Docket No. 321564, Sheryl Roth appeals as of right the trial court’s April 10, 2014 order
granting Jaimey Roth sole legal and physical custody of the children. We affirm in each case.
I. FACTS
A. DIVORCE JUDGMENT, DOCKET NO. 312008
The parties married in February 2001 and had four children. In May 2011, Jaimey Roth
filed for divorce, seeking distribution of the marital estate pursuant to a prenuptial agreement.
Judge Edward Sosnick, the initial trial court judge, ordered the parties to engage in a “nesting”
arrangement, in which the children resided in the marital home and the parties resided in the
home on alternating weeks. Each party accused the other of destroying or taking property from
the marital home. The trial court appointed a guardian ad litem for the children and required
both parties to participate in a psychological evaluation and weekly drug screens. Sheryl Roth
tested positive for alcohol in August 2011, and the trial court instructed the parties not to use
alcohol. After Sheryl Roth tested positive for alcohol again in September 2011, the trial court
ordered Sheryl Roth’s parenting time to be supervised until she completed parenting classes.
Sheryl Roth admitted that she had substance abuse and gambling issues that she needed
to resolve. However, Sheryl accused Jaimey of becoming romantically involved with Renee
Winkler, who had past arrests on drug charges. Richard Riggs, Sheryl’s therapist, opined that
Sheryl showed a good deal of motivation and understanding. Deborah Vogler, Sheryl’s
-1-
parenting time supervisor, testified that Sheryl was patient with the children even though they
made disparaging remarks to her.
On March 14, 2012, the trial court determined that the parties’ prenuptial agreement was
valid. The prenuptial agreement precluded spousal support. On March 28, 2012, the parties
placed a settlement on the record.
In pertinent part, the parties’ settlement provided for joint physical and legal custody of
the children, provided that neither party would use illegal drugs, and provided that Sheryl Roth
would not gamble or drink alcohol. The settlement also provided that Sheryl Roth would receive
non-modifiable spousal support of $2,000 a month for five years, subject to conditions.
Both parties testified that they understood the terms of the settlement and that they were
waiving certain disputes and other rights. However, at a hearing on April 18, 2012, Sheryl asked
to alter or add certain provisions to the consent judgment. The trial court indicated that the
parties were bound by the settlement they had placed on the record.
On May 2, 2012, Sheryl moved to set aside the consent judgment, alleging that she was
confused and shaken at the hearing and did not believe that she was entering into a final
judgment. Both Sheryl and her attorney provided un-notarized affidavits alleging that they were
surprised by the entry of the settlement. The trial court denied Sheryl’s motion, reasoning that
Sheryl had been represented by two attorneys at the hearing and had indicated on the record that
she understood the settlement. The trial court also found that the settlement was fair in light of
the facts of the case.
Sheryl moved for reconsideration. She alleged for the first time that her attorney found
“newly discovered evidence” in her previous attorney’s file that indicated that Jaimey Roth had
committed financial fraud on the court. At the June 13, 2012 hearing on the motion, Sheryl
contended for the first time that Jaimey had fraudulently failed to give specific personal property
to her. The trial court denied Sheryl’s motion for reconsideration.
B. TERMINATION OF SPOUSAL SUPPORT, DOCKET NO. 316003
On August 31, 2012, Jaimey Roth filed an emergency motion to terminate spousal
support and to suspend Sheryl’s parenting time, alleging that she had violated the provisions of
the divorce judgment by consuming alcohol, had thrown a phone at one child, and committed
retail fraud in the presence of another child. At the hearing on the motion, Sheryl testified that
she consumed wine on two or three occasions, but characterized the drinking as minimal. The
trial court deferred its decision on spousal support pending an evidentiary hearing.
The trial court held an evidentiary hearing on September 25, 2012, which it indicated that
it would continue at a later date. On January 16, 2013, the case was reassigned to Judge Cheryl
A. Matthews. At a hearing on March 13, 2013, Sheryl Roth moved to continue the evidentiary
hearing or, alternatively, to strike it. The trial court responded “[o]kay,” and subsequently
clarified whether counsel was also asking to strike Sheryl’s previous admission that she had
consumed alcohol. Counsel indicated that Sheryl was not moving to strike her admission. On
April 9, 2013, the trial court ruled that it would enforce the divorce judgment as written.
-2-
Because Sheryl admitted that she had consumed alcohol, which violated the divorce judgment,
the trial court terminated Sheryl Roth’s spousal support.
C. CHANGE OF CUSTODY, DOCKET NO. 321564
On November 8, 2012, Jaimey Roth moved the trial court to modify the children’s
custody to grant him sole physical and legal custody. The trial court conducted 11 days of
evidentiary hearings between June 28, 2013, and March 18, 2014. At the evidentiary hearings,
the parties made various accusations against each other.
Sheryl Roth denied that she had consumed alcohol, but testified that she had sipped wine
on two occasions. Sheryl also admitted that she had committed retail fraud while shopping with
one of the children. But Sheryl testified that Jaimey encouraged the children to disparage her,
and Sheryl’s landlord testified that Jaimey disparaged Sheryl to her and threatened to install
spyware on Sheryl’s phone.
Jaimey testified that he continued to reside in the marital home with Winkler, his fiancée.
Jaimey admitted that Winkler had pleaded guilty to marijuana possession over two years
previously and was then convicted of driving under the influence while on probation for that
offense. Jaimey also admitted that he initially said negative things about Sheryl in the presence
of the children, but claimed that he no longer did so. However, Jaimey opined that he could not
cooperate with Sheryl or agree with her about decisions affecting the children’s welfare because
they cannot communicate and have philosophical differences about how to raise the children.
Arleen Platt testified that she supervised Sheryl’s parenting time from November 2012 to
September 2013. According to Platt, the older children were unhappy with Sheryl. They
engaged in inappropriate behavior, like swearing and spitting, but Sheryl did not use appropriate
discipline with them. Jennifer Elliott, the children’s counselor, testified extensively about the
children’s welfare.
Dr. Gerald Shiener, a psychiatrist, testified that he conducted psychological evaluations
of both parties. Dr. Shiener opined that Jaimey’s home would provide a more stable
environment for the children. According to Dr. Shiener, Sheryl has an addictive disorder and
engages in alcohol dependency and compulsive gambling. Dr. Shiener opined that Sheryl has a
guarded prognosis because she has difficulty accepting responsibility for her behavior or
understanding that she needs treatment.
In a detailed opinion, the trial court determined that the children have an established
custodial environment with Jaimey Roth. The trial court thoroughly considered the children’s
best interests and determined that clear and convincing evidence supported that Jaimey should
have sole physical custody of the children. The trial court granted Sheryl a gradual parenting
time schedule. The trial court found that the parties could not agree about basic decisions
concerning the children’s welfare and granted Jaimey sole legal custody of the children.
II. CONSENT JUDGMENT, DOCKET NO. 312008
A. STANDARD OF REVIEW
-3-
This Court reviews for an abuse of discretion the trial court’s decision regarding the
validity of a consent agreement to a settle a divorce. Vittiglio v Vittiglio, 297 Mich App 391,
400; 824 NW2d 591 (2012). The trial court abuses its discretion when its decision falls outside
the range of reasonable and principled outcomes. Saffian v Simmons, 477 Mich 8, 12; 727
NW2d 132 (2007).
B. VALIDITY OF THE CONSENT JUDGMENT
Sheryl Roth raises various challenges to the validity of the parties’ consent judgment. “A
consent judgment is the product of an agreement between the parties.” Sylvania Silica Co v
Berlin Twp, 186 Mich App 73, 75; 463 NW2d 129 (1990). In essence, an agreement to settle a
pending case is a contract. In re Robert H Draves Trust, 298 Mich App 745, 767; 828 NW2d 83
(2012). MCR 2.507(F)1 provides that a consent agreement is binding if it is made in open court.
Generally, a party may only obtain relief from a consent judgment for mutual mistake, fraud,
unconscionable advantage, or ignorance of a material term of the settlement agreement.
Plamondon v Plamondon, 230 Mich App 54, 56; 583 NW2d 245 (1998).
First, Sheryl Roth contends that her settlement agreement lacked mutual assent because
she and her attorneys were surprised by the consent judgment proceeding, she was confused at
the time the judgment was entered, and she did not believe that her settlement would be final.
We disagree.
A valid contract requires a meeting of the minds on all essential terms. Kloian v
Domino’s Pizza, LLC, 273 Mich App 449, 453; 733 NW2d 766 (2006). A court considers the
parties’ express words and visible acts, and not the parties’ subjective states of mind, to
determine whether there was mutual assent to a contract. Id. at 454.
In this case, the parties placed their consent agreement on the record at the March 28,
2012 hearing. The settlement terms were stated on the record, and Sheryl Roth’s attorneys both
participated by clarifying terms. Subsequently, the trial court questioned Sheryl:
THE COURT: All right, and you understand that if you accept the
settlement you’ll be bound by its terms?
MS. ROTH: I understand.
THE COURT: All right. Now, you’ve had a chance to talk to your
lawyers I know you talked to some of your family and with the other side’s
permission you and I, along with your lawyers, talked today and I indicated to you
that you have the absolute right to go to trial and that if you chose to go to trial
you could do better, worse, the same, do you understand that?
1
At the time of this suit, this court rule was MCR 2.507(G). MCR 2.507(G) was redesignated as
MCR 2.507(F), effective September 11, 2013, but the rule’s language was not changed.
-4-
MS. ROTH: I do.
THE COURT: And likewise you understood there was a prenup here and
you took that into consideration in terms of making your determination to resolve
this case?
MS. ROTH: (Inaudible).
THE COURT: All right, is this your own free choice and decision to do
this, to settle this case on the terms that were placed on the record?
MS. ROTH: Yes, it is.
THE COURT: Yes, it is. And you understand that you’ll be bound by
your decision as to property and it’s changeable on a material change with regard
to parenting time, custody and child support only, do you understand that?
MS. ROTH: I do.
One of Sheryl’s attorneys also questioned her about her understanding of the settlement
agreement:
MS. CRONIN: Just so that we’re clear, that you fully understand all the
terms today?
MS. ROTH: Yes, I do.
MS. CRONIN: And you’re entering it at your own free will?
MS. ROTH: Yes.
We conclude that the trial court did not abuse its discretion when it determined that the
parties’ consent agreement was valid. The record indicates that both of Sheryl’s attorneys
actively participated in the hearing and did not manifest any form of surprise. Regardless of
Sheryl’s allegations regarding her subjective state of mind, her responses to questioning
indicated that she understood the essential terms of the settlement agreement. We are not
definitely and firmly convinced that the trial court made a mistake when it found that Sheryl
assented to the settlement and understood its terms.
Second, Sheryl contends that the consent judgment was the product of duress and undue
influence because counsel pressured her to accept the consent judgment and misled her regarding
the judgment’s finality. We reject this assertion.
Undue influence occurs when a party was subjected to threats, misrepresentation, flattery,
fraud, or coercion. In re Karmey Estate, 468 Mich 68, 74; 658 NW2d 796 (2003). However,
when a party asserts that the party’s attorney coerced or unduly influenced him or her, courts will
not overturn a consent judgment absent a showing that the opposing party participated in the
coercion or influence. Vittiglio, 297 Mich App at 401-402. In this case, Sheryl has made no
-5-
showing that Jaimey was a party to the alleged coercion. Further, Sheryl testified in response to
questions by the trial court and counsel that she was entering into the consent judgment of her
own free will and that she understood she would be bound by the judgment. We note that the
trial court had the opportunity to observe Sheryl’s demeanor during those representations. Given
these facts, we are not definitely and firmly convinced that the trial court made a mistake when it
declined to set aside the consent judgment on the basis of duress or undue influence.
Third, Sheryl contends that the consent judgment was invalid for a lack of consideration
because Jaimey agreed to give her certain personal property, but he was aware the property was
missing from the marital home. We disagree.
Jaimey’s attorney placed on the record the parties’ agreement to waive claims regarding
issues of missing personal property:
In terms of personal property, we sat today and [Sheryl Roth] still has some . . .
clothing and those kinds of shoes, personal items in the home. We will pick a
date and she will be able to go in the home and remove all of those items that are
personal to her, clothes, handbags, shoes, jewelry, the what not. We are—both
parties have accused the other party of taking things and removing items. We
are—they can make representations that they didn’t do that. Certainly my client
is not going to remove anything from today going forward but we are waiving
those claims. Whatever is there is there and she’s taking it. [Emphasis added.]
In her motion for a new trial, Sheryl conceded that the parties agreed to waive claims regarding
the missing personal property. Therefore, we conclude that the trial court did not err when it
rejected Sheryl’s claim that the consent judgment lacked consideration on this ground. The
parties’ agreement clearly indicated that items could be missing from the home and were not part
of the consent judgment.
Fourth, Sheryl contends that she was unable to make an informed decision to waive her
rights because Jaimey (1) fraudulently concealed his financial records, (2) misrepresented his
income, and (3) received an income tax return when he stated that he would not receive one. We
decline to address these issues. Sheryl does not provide citations to the record to support these
arguments, and we decline to find the necessary factual support for her. See McIntosh v
McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2008). Further, because Sheryl did not raise
these arguments until her motion for reconsideration, they are unpreserved. See Vushaj v Farm
Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773 NW2d 758 (2009).
Fifth, Sheryl contends that the trial court erred by not holding an evidentiary hearing
when she alleged that Jaimey perpetrated fraud. We disagree.
Sheryl alleged that the court was defrauded into believing that she agreed with the
consent judgment on the basis of confusion, duress, and undue influence by her attorneys. The
trial court may abuse its discretion when a party alleges fraud in a consent judgment but it fails to
hold an evidentiary hearing. Kiefer v Kiefer, 212 Mich App 176, 183; 536 NW2d 873 (1995).
However, the trial court need not hold an evidentiary hearing when it can sufficiently decide an
issue on the basis of the evidence already before it. Vittiglio, 297 Mich App at 406. In this case,
-6-
as discussed above, the existing record clearly reflected that Sheryl agreed to the consent
judgment. We conclude that the trial court’s decision not to hold an evidentiary hearing did not
fall outside the range of reasonable and principled outcomes.
In sum, Sheryl actively participated in the hearing and, despite her later assertions about
her subjective state of mind, she clearly and unequivocally stated that she understood the
settlement’s terms, waived certain rights, and agreed to be bound by the consent judgment. We
conclude that the trial court did not abuse its discretion by upholding the consent judgment, and
we are not definitely and firmly convinced that its findings were erroneous.
III. INTERPRETATION OF THE CONSENT JUDGMENT, DOCKET NO. 316003
A. STANDARD OF REVIEW
As discussed above, a consent judgment is essentially a contract. Sylvania Silica Co, 186
Mich App at 75. This Court reviews de novo the proper interpretation of contracts and the legal
effect of contractual provisions. Quality Prods & Concepts Co v Nagel Precision, Inc, 469 Mich
362, 379; 666 NW2d 251 (2003); Wright v Wright, 279 Mich App 291, 297; 761 NW2d 443
(2008).
B. EVIDENTIARY HEARING
Sheryl contends that Judge Matthews erred by rendering a judgment before finishing the
evidentiary hearing that Judge Sosnick began. We disagree.
A party waives the right to appellate review when the party’s own conduct directly causes
or contributes to the alleged error. Farm Credit Servs of Michigan’s Heartland, PCA v Weldon,
232 Mich App 662, 684; 591 NW2d 438 (1998). In this case, Sheryl moved in the alternative to
strike the evidentiary hearing or to complete it. The trial court responded, “Okay, I haven’t read
any of that[.]” The trial court asked Sheryl if she was asking to strike her admission that she had
used alcohol, and Sheryl’s counsel responded, “I’m not.” The trial court later terminated
Sheryl’s spousal support on the basis that Sheryl admitted that she drank wine on two or three
occasions. The record indicates that the trial court granted Sheryl the relief she sought—it struck
the evidentiary hearing and did not consider it when rendering its decision on the motion.
Accordingly, Sheryl’s assertion of error is meritless.
C. LIQUIDATED DAMAGES
Sheryl contends that the provision of the parties’ consent judgment that terminated her
spousal support for consuming alcohol constituted an unenforceable liquidated damages
provision. We disagree.
“A liquidated damages provision is simply an agreement by the parties fixing the amount
of damages in case of a breach.” UAW-GM Human Resource Ctr v KSL Recreation Corp, 228
Mich App 486, 508; 579 NW2d 411 (1998). A liquidated damages provision is not enforceable
if it is unconscionable or excessive. St Clair Med, PC v Borgiel, 270 Mich App 260, 270; 715
NW2d 914 (2006).
-7-
In this case, the parties’ consent judgment provided that if Sheryl consumed alcohol, she
would be barred from receiving spousal support:
Defendant Wife agrees to live a chemical free lifestyle, and get a job or go to
school. If during said (5) year period beginning on April 1, 2012, Defendant Wife
shall gamble, consume alcohol, consume any illegal drugs, consume legal drugs
for recreational purposes, fail to maintain a job or make reasonable and legitimate
efforts to find employment or stay in school such spousal support payments shall
immediately cease and thereafter be forever barred. . . .
This provision does not fix any amount of damages for Sheryl’s breach of the parties’ consent
judgment. Accordingly, it does not constitute a liquidated damages provision. We reject
Sheryl’s argument.
D. ALIMONY IN GROSS
Sheryl contends that the parties’ spousal support agreement constituted alimony in gross
rather than periodic alimony and, therefore, the trial court could not modify or discontinue it.
We disagree.
Parties may structure their spousal support so that it is modifiable or not modifiable.
Staple v Staple, 241 Mich App 562, 565; 616 NW2d 219 (2000). Alimony in gross is a “sum
certain and is payable either in one lump sum or in periodic payments of a definite amount over a
specific period of time.” Bonfiglio v Pring, 202 Mich App 61, 63; 507 NW2d 759 (1993). It is
not intended for the maintenance of the spouse, and is not subject to modification. Staple, 241
Mich App at 566. In contrast, periodic alimony “is designed to provide support and maintenance
rather than to distribute property.” Friend v Friend, 486 Mich 1035, 1035; 783 NW2d 122
(2010). Periodic alimony is modifiable and generally subject to contingencies. Id.In this case, Jaimey Roth agreed to pay $2,000 a month in spousal support to provide
Sheryl with “a suitable home in the children’s school district” for a period of five years. At the
hearing, the parties characterized this provision as “rehabilitative alimony.” However, the
parties’ agreement provided several conditions under which his obligation would terminate,
including Sheryl’s death, remarriage, gambling, consumption of alcohol or illegal drugs, or
failure to attempt to find and maintain employment. Because the provision was designed to
provide for Sheryl’s support and was subject to contingencies, we conclude that the trial court
did not clearly err when it found that this provision provided for periodic, modifiable spousal
support.
E. ENFORCEABILITY OF THE PROVISION
Sheryl contends that the provision terminating her spousal support on the consumption of
alcohol is unenforceable for a variety of reasons. First, Sheryl contends that she was unaware
that she was entering into a settlement at the March 28, 2012 hearing. We have already rejected
these assertions and we will not repeat our reasoning here.
-8-
Second, Sheryl contends that the provision terminating her spousal support if she
consumes two sips of wine is unfair and violates public policy because it leaves her without a
house in which to exercise custody over her children. We disagree.
Contracts that “tend to be injurious to the public or against the public good[] are illegal
and void[.]” Mahoney v Lincoln Brick Co, 304 Mich 694, 706; 8 NW2d 883 (1943). But this
Court respects the parties’ freedom of contract. DeFrain v State Farm Mut Auto Ins Co, 491
Mich 359, 372; 817 NW2d 504 (2012). A contract does not violate public policy simply because
it may be unreasonable or unfair. Id. The contract violates public policy only if it violates law
or policy as adopted in our state and federal constitutions, statutes, or the common law. Id.This Court will not invalidate portions of Sheryl’s consent judgment on the basis of
subjective notions of reasonableness, and Sheryl does not identify a constitution, statute, or
common law that her spousal support condition violates. Sheryl agreed to the condition and,
regardless of how unwise it may have been to do so or how unfair the provision may appear,
these are not grounds to avoid the parties’ freedom to contract.
Third, Sheryl contends that the provision was unconscionable and that she was
fraudulently induced to agree to a chemical-free lifestyle. She asserts that Jaimey falsely
represented that the children were to have chemical-free parents when he knew that the consent
judgment did not prohibit Winkler from engaging in similar behaviors.
We decline to review these claims for two reasons. First, “we need not address issues
first raised on appeal.” Polkton Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170
(2005). Sheryl did not raise either claim before the trial court, and they are unpreserved.
Second, Sheryl’s assertions lack factual support in the record. The appellant has the burden to
create a factual record to support his or her argument and to provide that record to this Court.
Reed v Reed, 265 Mich App 131, 160; 693 NW2d 825 (2005). Sheryl claims that she would be
able to prove her allegations “if given a chance,” but it is not sufficient for the appellant to
simply claim that he or she could provide support for allegations if this Court remanded. We
decline to address these issues.
IV. THE CHILDREN’S CUSTODY
A. STANDARDS OF REVIEW
This Court must affirm the trial court’s findings of fact related to matters of child custody
unless they are against the great weight of the evidence. MCL 722.28; Pierron v Pierron, 486
Mich 81, 85; 782 NW2d 480 (2010). The trial court’s factual findings are against the great
weight of the evidence only if the evidence “clearly preponderate[s] in the opposite direction.”
Id. (alteration in original, quotation marks and citation omitted).
This Court reviews for a “palpable abuse of discretion” the trial court’s discretionary
decisions, including its ultimate custody award. Fletcher v Fletcher, 447 Mich 871, 879, 881;
526 NW2d 889 (1994); Berger v Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). A
palpable abuse of discretion occurs when the trial court’s decision is “grossly violative of fact
and logic” and “evidences not the exercise of will but the perversity of will, not the exercise of
-9-
judgment but defiance thereof, not the exercise of reason but rather of passion or bias.” Fletcher,
447 Mich at 879-880 (quotation marks and citation omitted).
This Court reviews for an abuse of discretion the trial court’s evidentiary rulings. Reed,
265 Mich App at 160. However, this Court reviews de novo preliminary questions of law
surrounding the admissibility of evidence. Shinkle v Shinkle (On Rehearing), 255 Mich App
221, 224; 663 NW2d 481 (2003).
B. EVIDENTIARY ISSUES
First, Sheryl Roth contends that the trial court abused its discretion by excluding
testimony from Linda Ross, a neighbor, when the testimony was not hearsay. In an offer of
proof, Ross indicated that she would have testified that the children have told her that “my daddy
says you’re a witch and a b***.” We disagree.
Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). If
multiple levels of hearsay are involved, each of the declarations must be admissible. People v
Mesik (On Reconsideration), 285 Mich App 535, 538; 775 NW2d 857 (2009).
In this case, Sheryl contended that she was offering Linda Ross’s statement about what
the children said Jaimey said in order to show that Jaimey was making negative statements to the
children. Thus, the matter asserted was that Jaimey was making negative statements to the
children. Sheryl offered evidence of a statement by Jaimey (the declarant) through Linda Ross (a
person other than the declarant) to prove that Jaimey was, in fact, making negative statements.
We conclude that the trial court correctly determined that the statement fit the definition of
hearsay because Sheryl offered the statement to prove the truth of the matter asserted.
Second, Sheryl contends that the trial court improperly excluded Friedman’s deposition
testimony when Friedman was unavailable to testify at trial. A party abandons an issue when he
or she fails to provide authority to support his or her assertions, MCR 7.212(C)(5); Caldwell v
Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000), or fails to address the basis of the
trial court’s decision, Derderian v Genesys Health Care Sys, 263 Mich App 364, 381; 689 NW2d
145 (2004). Sheryl’s argument is entirely devoid of legal support and does not address the basis
of the trial court’s decision. The trial court decided that Sheryl did not establish that Friedman’s
testimony would be helpful to its decision because Friedman had never met the children. We
conclude that Sheryl has abandoned this issue.
Third, Sheryl contends that the trial court abused its discretion by denying her request to
depose Winkler before trial. While Sheryl raises this issue in her statement of questions
presented, she does not argue it in the body of her brief or provide any support for this argument.
Parties abandon issues on appeal if they “merely announce their position and leave it to this
Court to discover and rationalize a basis for their claims.” VanderWerp v Plainfield Charter
Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). We conclude that Sheryl has abandoned
this issue as well.
C. ESTABLISHED CUSTODIAL ENVIRONMENT
-10-
Sheryl Roth contends that the trial court erred by finding that the children had an
established custodial environment with Jaimey Roth because he failed to call Winkler as a
witness in order to establish that his custodial environment was satisfactory. We conclude that
Sheryl’s arguments lack merit.
Sheryl misapprehends the role of the children’s custodial environment in child custody
proceedings. “An established custodial environment is one of significant duration in which a
parent provides care, discipline, love, guidance, and attention that is appropriate to the age and
individual needs of the child.” Berger, 277 Mich App at 706. If an established custodial
environment exists, the party seeking to change the child’s custody to a different environment
must establish by clear and convincing evidence that modifying the child’s environment is in the
child’s best interest. Mitchell v Mitchell, 296 Mich App 513, 520; 823 NW2d 153 (2012); MCL
722.27a(1)(c).
In this case, both Dr. Shiener and Elliott testified that the children were in a stable
environment with Jaimey Roth. Elliott testified that the children discussed their feelings with
Jaimey and he provided them with guidance. Evidence supported the trial court’s finding that
the children had an established custodial environment with Jaimey. And even were we to
conclude otherwise, reversal would not be warranted. The trial court applied the more stringent
clear and convincing evidence standard to its decision to modify the children’s custody.
Further, whether Jaimey established the environment through underhanded means is not
pertinent to this issue. The manner in which the children’s custodial environment was
established is not relevant. Berger, 277 Mich App at 707. Whether the children’s existing and
proposed environments were “satisfactory” was a question of the children’s best interests, see
MCL 722.23(d), which is a separate inquiry.
D. SUFFICIENCY OF THE TRIAL COURT’S FINDINGS
Sheryl Roth contends that the trial court erred by summarizing the testimony presented at
the evidentiary hearings and by failing to mention certain facts. We disagree.
In this case, the trial court summarized the facts presented at the extensive evidentiary
hearings before it made its findings and conclusions. Sheryl Roth provides authority to support
her argument that it is somehow inappropriate for the trial court to summarize the proceedings.
Nonetheless, we have reviewed the trial court’s summary and conclude that it fairly reflects the
evidence that the parties presented at trial. To the extent that the trial court did not mention
evidence Sheryl Roth found pertinent, it is not required to comment on each piece of evidence.
See MacIntyre v MacIntyre (On Remand), 267 Mich App 449, 452; 705 NW2d 144 (2005). We
conclude that the trial court did not reversibly err.
E. THE CHILDREN’S BEST INTERESTS
The trial court must make its determination about a child’s custody on the basis of the
child’s best interests. MCL 722.25(1); Berger, 277 Mich App at 705. To determine what is in
the child’s best interests, the trial court must consider the following factors:
-11-
(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.
(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. [MCL 722.23.]
This Court will not disturb the trial court’s factual findings regarding the children’s best interests
unless the evidence clearly preponderates in the opposite direction. Fletcher, 447 Mich at 879.
First, Sheryl Roth contends that the trial court erred when it found that factor (a), the
love, affection, and emotional ties of the children, favored Jaimey Roth. It found that both
parties loved the children, but the children had a stronger emotional bond with Jaimey Roth.
Ross testified that Jaimey Roth emotionally manipulated the children. And Jaimey Roth
testified that he had previously engaged in negative behaviors, but claimed that he had stopped
doing so. However, Sheryl Roth admitted that the children were angry with her. Elliott, the
children’s counselor, testified that one of the children told her about anger and resentment
-12-
stemming from a time that the child caught Sheryl Roth engaged in sexual activity with a man
other than Jaimey. Further, Platt testified that the children were proud, happy, and well-behaved
in Jaimey’s home, but the children were unhappy in Sheryl’s care. According to Platt, the
children had volatile parenting sessions with Sheryl that included acts of physical aggression.
Given the extensive conflicting evidence, we conclude that the evidence did not clearly
preponderate against the trial court’s finding.
Second, Sheryl Roth contends that the trial court erred when it found that factor (b), the
parties’ capacity to give the children love, education, and guidance, favored Jaimey Roth. The
trial court found that Jaimey was more inclined to continue the children’s religious education and
provide them with parental discipline and that Sheryl engaged in inappropriate behavior in front
of the children and placed her personal needs over those of the children.
Jaimey Roth testified extensively about his involvement in the children’s religious
education, including overseeing their Shabbat dinners, prayers, mitzvahs, Hebrew and Sunday
schools, and participation in Temple. Conversely, Sheryl Roth testified that she was not
involved in the children’s religious education, did not have prayer books, and did not attend
Jewish services. Platt testified that Sheryl did not provide appropriate discipline to the children
during parenting time. Elliott testified that Jaimey provided the children with appropriate
discipline. We conclude that the evidence did not clearly preponderate against the trial court’s
finding.
Third, Sheryl Roth contends that the trial court erred when it found that factor (d), the
length of time the children had lived in a stable and satisfactory environment, and factor (e), the
permanence of a family unit in the existing or proposed homes, favored Jaimey Roth. The trial
court found that these factors favored Jaimey because he had provided stability by keeping the
children in a single permanent home, but Sheryl did not maintain adequate housing and had not
found permanence.
Jaimey Roth testified that he had been living and intended to continue to live in the
marital home with the children. Even Sheryl testified that she believed that Jaimey could
provide the children with a stable and satisfactory home. In contrast, Sheryl had difficulty
maintaining housing. We conclude that the evidence did not clearly preponderate against the
trial court’s findings.
Fourth, Sheryl Roth contends that the trial court erred when it found that factor (f), the
parties’ moral fitness, favored Jaimey Roth. The trial court found that Sheryl’s poor moral
decisions adversely affected her relationship with the children.
As previously discussed, the record reflects that the children witnessed Sheryl Roth
engaged in behavior that adversely affected their relationship with her. We are not convinced
that the evidence clearly preponderated against the trial court’s finding.
Fifth, Sheryl Roth contends that the trial court erred when it found that factor (g), the
parties’ mental and physical health, favored Jaimey Roth. The trial court found that Sheryl’s
mental health problems were more serious.
-13-
Dr. Shiener testified that Jaimey Roth has a propensity to engage in relationships with
needy individuals. However, Dr. Shiener also testified that Sheryl Roth has addiction issues
involving gambling and alcohol and a failure to acknowledge and deal with those issues.
Accordingly, Dr. Shiener opined that Sheryl had a guarded prognosis. Given Dr. Shiener’s
testimony, we conclude that the evidence did not clearly preponderate against the trial court’s
finding.
Sixth, Sheryl Roth challenges the trial court’s findings under factor (j), the willingness of
a party to facilitate the relationships between the children and the other party. The trial court
found that factor (j) favored neither party because both each party had disparaged the other in
front of the children.
Elliott, the children’s counselor, testified that the children told her that Sheryl Roth said
negative things about Jaimey Roth. Elliott also testified that she saw Jaimey improve in his
ability to correct the children when they speak negatively about Sheryl and that Jaimey
encouraged the children to behave better when with Sheryl. Platt testified that she did not
observe either party engage in negative behavior when exchanging the children for parenting
time. Regarding Sheryl’s allegations that Jaimey manipulated the children and turned them
against her, to the extent that the trial court chose not to credit her allegations, we will not
overturn the trial court’s credibility determination. See MCR 2.613(C); Berger, 277 Mich App
at 707. The evidence does not clearly preponderate against the trial court’s finding that this
factor favored neither party.
Seventh, regarding the overall weight of the best interest factors, Sheryl Roth contends
that the trial court should have weighed factor (k), domestic violence, more strongly in her favor.
The trial court found that factor (k) favored Sheryl because Jaimey engaged in bullying behavior
and fueled the children’s outbursts and anger toward Sheryl. Sheryl also contends that factor (h),
the children’s home, school, and community records, only mildly favored Jaimey.
The trial court need not mathematically calculate its custody determination, or give equal
weight to best interest factors when making its custody decision. Berger, 277 Mich App at 712;
McCain v McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). In this case, the trial court
extensively considered the best interest factors and determined that the overall weight of those
factors favored Jaimey Roth. It did not assign any particular weight to any factor, but it was not
required to. It is clear from the trial court’s detailed analysis that it exercised judgment and
reason when determining the children’s custody. We conclude that the trial court did not
palpably abuse its discretion by awarding Jaimey Roth sole custody of the children.
V. CONCLUSION
We affirm in Docket No. 312008 because we conclude that Sheryl Roth has failed to
establish grounds to set aside her consent judgment of divorce. We affirm in Docket No. 316008
because we conclude that Sheryl Roth has failed to establish that the condition of the parties’
consent judgment prohibiting her from consuming alcohol was invalid. And we affirm in Docket
No. 321564 because we conclude that the trial court did not err in its decisions regarding the
evidence, established custodial environment, the best interests of the children, or its ultimate
custody decision.
-14-
Affirmed. As the prevailing party, Jaimey Roth may tax costs. MCR 7.219.
/s/ Karen M. Fort Hood
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
-15-