Rossow v. Aranda

206 Mich. App. 456 (1994) 522 N.W.2d 874

ROSSOW
v.
ARANDA

Docket No. 164420.

Michigan Court of Appeals.

Submitted May 17, 1994, at Grand Rapids. Decided August 15, 1994, at 9:10 A.M.

Peter J. Johnson and Jay L. Schultz, for the plaintiff.

Before: DOCTOROFF, C.J., and TAYLOR and M.G. HARRISON,^[*] JJ.

TAYLOR, J.

Plaintiff appeals as of right from a circuit court order that denied her request for physical custody of the parties' eldest daughter and that continued physical custody of the daughter with defendant. We affirm.

Plaintiff sought to set aside a stipulation pursuant to which she agreed to transfer physical custody of the parties' eldest daughter from herself to defendant. Plaintiff failed to establish that she had entered into the stipulation as a result of duress or coercion. Accordingly, plaintiff failed to demonstrate proper cause for a change of custody. MCL 722.27(1)(c); MSA 25.312(7)(1)(c); Mann v Mann, 190 Mich. App. 526, 536; 476 NW2d 439 (1991).

Further, we reject plaintiff's claim that the trier of fact erred as a matter of law in refusing to consider and make findings with regard to the statutory best interest factors, MCL 722.23; MSA 25.312(3). A trial court may amend or modify its previous custody judgment or order only "for proper cause shown or because of change of circumstances...." MCL 722.27(1)(c); MSA 25.312(7)(1)(c).

The plain and ordinary language used in MCL 722.27(1)(c); MSA 25.312(7)(1)(c) evinces the Legislature's intent to condition a trial court's reconsideration of the statutory best interest factors on a determination by the court that the party seeking the change has demonstrated either a proper cause shown or a change of circumstances. It therefore follows as a corollary that where the party seeking to change custody has not carried the initial burden of establishing either proper cause or a change of circumstances, the trial court is not authorized by statute to revisit an otherwise valid prior custody decision and engage in a reconsideration of the statutory best interest factors.

In the instant case, plaintiff failed to establish either proper cause or a change of circumstances warranting a change of custody. Accordingly, the trier of fact was not required by MCL 722.27(1)(c); MSA 25.312(7)(1)(c) to address the statutory best interest factors. Plaintiff's failure to present sufficient proof of changed circumstances precludes further consideration of her motion to change custody.

Finally, we reject plaintiff's challenge to the trier of fact's determination that an established custodial environment existed with defendant. Because plaintiff has failed to establish proper cause or a change of circumstances necessitating consideration of a change in custody, the trier of fact was not required to make a determination with regard to the existence of an established custodial environment. MCL 722.27(1)(c); MSA 25.312(7)(1) (c). Accordingly, any such finding by the trier of fact was harmless in the instant case.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.