Eliana Bitar v. Rami Baroody

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
ELIANA BITAR, UNPUBLISHED
June 29, 2023
Plaintiff-Appellee,
v No. 364831
Wayne Circuit Court
RAMI BAROODY, LC No. 21-103917-DM
Defendant-Appellant.
Before: HOOD, P.J., and SHAPIRO and YATES, JJ.
PER CURIAM.
Defendant appeals of right the trial court’s judgment of divorce, which awarded the parties
joint legal custody of their children, but provided sole physical custody to plaintiff, with parenting
time for defendant every other weekend, alternating Wednesday evenings, and four weeks during
the summer. Because the trial court did not explain whether the award of physical custody would
modify the children’s established custodial environment and did not identify the burden of proof
that it applied in determining its custody award, we must vacate the trial court’s order and remand
the case for further proceedings on the issues of physical custody and parenting time.
I. FACTUAL BACKGROUND
Plaintiff and defendant were both born in Syria. They married there in July 2000 and, not
long after, they moved to the United States. While residing in Syria, plaintiff earned her medical
degree. After moving to the United States, she spent the first few years becoming accredited to
practice medicine in the United States. During that time, and for a few additional years, defendant
attended two universities and earned his Master’s degree and his Ph.D. in electrical and computer
engineering. Plaintiff participated in a residency program at Henry Ford Hospital, worked for
several years at another hospital, and eventually opened her own private practice specializing in
obstetrics and gynecology. After he completed his education, defendant taught part-time until he
accepted a full-time faculty position in the computer-science department of a private school in
metropolitan Detroit. In October 2009, plaintiff gave birth to twins, RB and TB. Then, in October
2015, plaintiff gave birth to the parties’ third child, JB.
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In April 2019, plaintiff filed a complaint for divorce. She dismissed the action in either
October or November 2019. Then, in April 2021, plaintiff again filed for divorce. Soon thereafter,
defendant counterclaimed for divorce. Throughout the pendency of the action, both plaintiff and
defendant continued to reside in the family home with the children and their maternal grandmother.
The divorce trial began on April 22, 2022, and, after six days of hearings, it concluded on
September 12, 2022. The parties were unable to agree on any issues, so the trial court was required
to resolve the issues of custody, parenting time, child support, and the division of marital property.
In addressing custody and parenting time, the trial court initially found that an established custodial
environment existed only with plaintiff. The trial court awarded the parties joint legal custody of
the children, but granted plaintiff sole physical custody. The trial court gave defendant parenting
time on every other weekend, alternating Wednesday evenings, and for four weeks in the summer.
Thereafter, defendant moved for reconsideration arguing, among other things, that an established
custodial environment existed with both parties. On reconsideration, the trial court found that an
established custodial environment did exist with both parents, but the trial court did not amend its
prior custody and parenting-time awards. Defendant then appealed.
II. LEGAL ANALYSIS
Defendant contends, first and foremost, that the trial court erred by awarding sole physical
custody of the minor children to plaintiff. Pursuant to MCL 722.28, in child custody disputes, “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.” Therefore, “MCL 722.28 distinguishes among three types
of findings and assigns standards of review to each.” Dailey v Kloenhamer, 291 Mich App 660,
664; 811 NW2d 501 (2011) (quotation marks and citation omitted). Factual findings “are reviewed
under the ‘great weight of the evidence’ standard.” Id. “A finding of fact is against the great
weight of the evidence if the evidence clearly preponderates in the opposite direction.” Pennington
v Pennington, 329 Mich App 562, 570; 944 NW2d 131 (2019). “ ‘The applicable burden of proof
presents a question of law that is reviewed de novo on appeal.’ ” Griffin v Griffin, 323 Mich App
110, 118; 916 NW2d 292 (2018). Finally, the trial court’s discretionary rulings “are reviewed for
an abuse of discretion.” Dailey, 291 Mich App at 664. “An abuse of discretion exists when the
trial court’s decision is ‘palpably and grossly violative of fact and logic . . . .’ ” Id. at 664-665.
Plaintiff requested joint legal custody, but sole physical custody, of the parties’ three minor
children, whereas defendant requested joint legal and physical custody. In Michigan, child custody
is governed by the Child Custody Act, MCL 722.21 et seq. In resolving a dispute about the custody
of a child, “[t]he threshold determination is whether an established custodial environment exists.”
Marik v Marik, 325 Mich App 353, 360; 925 NW2d 885 (2018). “ ‘The established custodial
environment is the environment in which over an appreciable time the child naturally looks to the
custodian in that environment for guidance, discipline, the necessities of life, and parental
comfort.’ ” Id. at 361. An established custodial environment can exist with either the plaintiff or
the defendant, or with both parties. Kessler v Kessler, 295 Mich App 54, 62; 811 NW2d 39 (2011).
After the trial court determines whether an established custodial environment exists, it must
then “consider whether the proposed change would modify the established custodial environment.”
Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). The party requesting to modify the
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established custodial environment must prove by clear and convincing evidence that the change is
in the child’s best interests. MCL 722.27(1). “If a child has an established custodial environment
with both parents, neither parent’s custody may be disrupted absent clear and convincing evidence
that the change is in the child’s best interest.” Bofysil v Bofysil, 332 Mich App 232, 243; 956
NW2d 544 (2020). If the proposed change would not alter the established custodial environment,
however, the heightened evidentiary burden is inapplicable. Pierron, 486 Mich at 89-90. Instead,
the proponent of the change must prove by a mere preponderance of the evidence that the proposed
change would be in the child’s best interest. Id. Hence, decisions concerning the existence of an
established custodial environment and the implications of the proposed change are critical because
those findings then dictate the burden of proof imposed on the party seeking the change. See, e.g.,
Id. at 93; Shade v Wright, 291 Mich App 17, 23; 805 NW2d 1 (2010).
Initially, in its October 28, 2022, opinion, the trial court found that an established custodial
environment existed solely with plaintiff because she was “primarily responsible for the day to
day operations regarding the minor children and the children look to her for comfort and guidance.”
The trial court then embarked upon its assessment of the best-interests factors under MCL 722.23.
After assessing the best-interests factors, the trial court found that two factors favored plaintiff and
the other ten factors were either equal or inapplicable to both parties. The trial court then awarded
the parties joint legal custody of their children, but granted sole physical custody to plaintiff.
On November 18, 2022, defendant moved for reconsideration, insisting that the trial court
had erred when it determined that the children’s established custodial environment was only with
plaintiff. Defendant asserted that an established custodial environment existed with both parents,
but defendant did not address whether the quantum of proof regarding the children’s best interests
would change if the children had an established custodial environment with him. In any event, on
November 29, 2022, the trial court entered an order finding that it had erred in concluding that the
established custodial environment existed only with plaintiff. The trial court reasoned that because
the parties lived together and the children looked to both parties for guidance, the children had an
established custodial environment with both parents. Nevertheless, the trial court left standing the
original custody and parenting-time awards.
The trial court did not expressly identify the applicable evidentiary standard, i.e., clear and
convincing evidence or a preponderance of the evidence, or the allocation of the burden of proof.
This matters because if an established custodial environment existed with both parties (as the trial
court ultimately found) and plaintiff sought an award of custody that would modify the established
custodial environment, plaintiff bore the burden of proving by clear and convincing evidence that
a modification of that established custodial environment was “in the best interest of” the children.
See MCL 722.27(1)(c). But the record is devoid of any indication that the trial court appreciated
the implication of its decision on reconsideration to find that an established custodial environment
existed with both parents.
Application of an incorrect evidentiary standard constitutes clear legal error, which renders
the trial court’s ultimate decision regarding custody an abuse of discretion. Foskett v Foskett, 247
Mich App 1, 4-5, 8, 13; 634 NW2d 363 (2001). We find that the trial court committed clear legal
error on a central issue when it failed to identify and apply the proper standard of proof—clear and
convincing evidence—in deciding whether it would be in the children’s best interests to grant sole
physical custody to plaintiff, and thereby modify the children’s established custodial environment.
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That error requires us to vacate the trial court’s award of physical custody and remand the matter
for reevaluation under the proper standard of proof. On remand, the trial court’s reevaluation must
include consideration of up-to-date information, including events that have occurred since the trial
court’s original custody order. See Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994).
Because the trial court should reevaluate each of the 12 best-interests factors, we need not address
defendant’s contention that the trial court’s findings on those factors were against the great weight
of the evidence. Instead, we shall simply vacate the trial court’s judgment of divorce as it relates
to the award of physical custody and parenting time and remand the case for reevaluation of those
matters under the clear-and-convincing-evidence standard based on up-to-date information.
Vacated in part and remanded for further consideration of physical-custody and parenting-
time issues. We do not retain jurisdiction.
/s/ Noah P. Hood
/s/ Douglas B. Shapiro
/s/ Christopher P. Yates
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