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### STATE OF MICHIGAN

COURT OF APPEALS

WILLIAM STUMPE,

Plaintiff-Appellant, UNPUBLISHED August 18, 2016

v No. 328614
Genesee Circuit Court DEBORAH STUMPE, LC No. 11-302568-DM

Defendant-Appellee.

Before: M URPHY , P.J., and S TEPHENS and B OONSTRA , JJ.

P ER C URIAM

.

The trial court conducted a nine -day evidentiary hearing with respect to plaintiff’s motion to modify custody of the parties’ minor child, KS. In a length y opinion and order, the trial court denied plaintiff’s motion, and plai ntiff appeals as of right th e court’s ruling. We affirm.

On appeal, plaintiff first cont ends that the trial court erred in concluding that proper cause or a change of circumstances did not exist to warrant reexamina tion of the existing custodial arrangement. Plaintiff alleges a litany of factual circumstanc es that he claims amounted to proper cause or a change of circumstances.

“This Court reviews a trial court’s determination regarding wh ether a party has demonstrated proper cause or a change of circumstances under th e great weight of the evidence
standard.” Corporan v Henton , 282 Mich App 599, 605; 766 NW2d 903 (2009), citing Vodvarka v Grasmeyer , 259 Mich App 499, 507-508; 675 NW2d 847 (2004). The great we ight standard requires that the tri al court’s factual findings be af firmed unless the evidence clearly preponderates in the opposite direction. Butler v Simmons-Butler , 308 Mich App 195, 200; 863 NW2d 677 (2014). A trial court’s custody order must be affirme d on appeal “ ‘unless the trial judge made findings of fact again st the great weight of evidenc e or committed a palpable abuse of discretion or a clear legal error on a major issue.’ ” Diez v Davey , 307 Mich App 366, 389; 861 NW2d 323 (2014), quoting MCL 722.28.

The seminal case on the issue of proper cause or a change of c ircumstances as contemplated by MCL 722.27(1)(c) is Vodvarka , 259 Mich App 499. In Vodvarka , this Court recognized that if a trial court makes a determination that pro per cause or a change of
circumstances does not exist warra nting reexamination of an exi sting custody arrangement, the trial court is statutorily pre cluded from revisiting a valid pr ior custody deci sion and from-2- engaging in a reconsideration of the best interest factors. Id . at 508-509. The person moving to alter custody bears the burden, by a preponderance of the evide nce, of demonstrating that proper cause or a change of circumstances exists before the trial cour t may undertake an inquiry into
whether an established custodial environment exists. Id . at 509. In Vodvarka , this Court set forth an “objective test for courts to apply in determining wha t constitutes proper cause or a change of circumstances.” Id . at 510. Recognizing that the underlying purpose of MCL 722.27(1)(c) is to minimize unwarranted disruptions in a child’ s custody and to “[p]rovid[e] a stable environment for children[ ,]” this Court first provided g uidelines for determining if proper
cause exists. Id . at 509, 510-512. In doing so, the Vodvarka panel observed that there are no applicable “hard or fast rule[s ]” and that the inquiry is a “fa ct-intensive” one. Id . at 511.

Therefore, we conclude that in context, proper cause means one or more appropriate grounds that have or could have a significant effec t on the child’s life
to the extent that a reevaluati on of the child’s custodial situ ation should be
undertaken.

* * *

[T]o establish “proper cause” necessary to revisit a custody o rder, a movant must prove by a preponderance of the evidence the existe nce of an appropriate ground for legal action to be taken by the trial co urt. The appropriate ground(s) should be relevant to at least one of the twelve stat utory best interest factors, and must be of such magnitude to have a significant ef fect on the child’s well-being. When a movant has demonstrated such proper cause, t he trial court can then engage in a reevaluati on of the statutory best interes t factors. [ Id. at 511- 512 (footnote omitted).]

Likewise, to demonstrate a change of circumstances as set forth in MCL 722.27(1)(c), the moving party must establish that, “since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a si gnificant effect on the child’s well-being, have materially changed.” Vodvarka , 259 Mich App at 513. The Court cautioned that not just any change will amount to a change of circumstanc es, rather, the evidence must show more than normal life changes that occur during a child’s life, 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 . at 513-514.

In ruling on the issue whether plaintiff had demonstrated, by a preponderance of the evidence, that proper cause or a change of circumstances existe d that would warrant reexamination of the custody st atus, the trial court undertook a detailed analysis of the factual allegations that plaintiff mounted against defendant. First, c oncerning the testimony that
defendant was an absentee mother , the trial court noted that th e nanny’s testimony had credibility issues where she had prior acrimony with defendant and plaintif f paid her salary. The trial court recognized that defendant may have “overstepped” when using the nanny’s services, but that plaintiff had not proven his esse ntial claim that defendant did not properly parent KS. With regard to defendant’s mental health issues, the trial court not ed the lack of any arrests or charges concerning domestic violence, and that there were no reports fr om Child Protective Services (CPS) or any other agency to substantiate plaintiff’s allegatio ns that defendant’s anger issues-3- made her an unfit parent. The trial court also considered a ps ychologist’s opinion that any anxiety or depression that defe ndant was experiencing would aba te after the conclusion of this custody action and did not interfere with her ability to parent . The trial court also noted that plaintiff could be very mean a nd aggressive himself, referring to text messages that the parties
had sent to each other. 1 The trial court then stated that the record evidence did not support plaintiff’s assertion that defendant had mental illnesses that would prohibit her from being an effective parent.

Addressing defendant’s past substance abuse, drinking, and par tying lifestyle, the trial court noted that plaintiff encouraged this behavior before the parties’ relationship collapsed in Hawaii in October 2013, and that after plaintiff requested drug testing in this case, defendant complied and the drug tests came back negative. Noting that de fendant likes to party, the trial court found that her drinking did not rise to the level of rend ering her an unfit parent. The trial court also noted that of the myriad safety issues plaintiff rai sed with regard to KS while in defendant’s custody, “this list of complaints” did not evidence that KS was in danger and amounted to gamesmanship on the part of plaintiff. Finally, th e trial court detailed the history of KS’s dental issues, noting that the dental decay had developed over a two-year period, during which both plaintiff and defenda nt had custody of KS. The tria l court also emphasized the fact that when defendant took KS to the doctor in July 2014, the doc tor’s medical records provided that “[n]o periodontal disease was present[,]” and there was no sign of any problems at that time. The trial court determined that there was nothing in the record leading it to conclude that KS’s dental problems were the “fault” of either plaintiff or defenda nt, or that either parent was unfit. The trial court also emphasized that when defendant was aware o f the issue, she “took action to provide dental care” for KS. The t rial court specifically stat ed:

In summary, Plaintiff has failed to show proper cause or a cha nge in
circumstances to entertain a cha nge of the cust odial environmen t. The Court is not giving Defendant the Mother of t he Year award. This is not vali dation. Some of the criticism of her is deserved. The Court is simply making a legal determination
that there is a failure to meet the Vodvarka threshold.

Plaintiff’s arguments in his brief on appeal on this issue ess entially contend that the trial court was remiss in not considering and accepting key evidence that amounted to proper cause or a change of circumstances warranting reexamination of the custo dy arrangement. Plaintiff makes several assertions in support of this primary claim.

Specifically, plaintiff contends that the evidence concerning defendant’s mental health issues, her anger, her alcohol and past substance abuse, as wel l as her stated desire to be away from her child for “kid free time” are all issues that directly impact defendant’s parenting of KS. According to plaintiff, these issues are all relevant to best i nterest factors (b) “[t]he capacity and disposition of the parties involved to give the child love, aff ection, and guidance . . .” and (g)

1 A telling text message from plaintiff to defendant read, “I wi ll be up ur ass for the rest of ur life . . . that I will promise u.”-4- “[t]he mental and physical health of the parties involved[,]” a nd therefore amount to proper cause. MCL 722.23(b), (g). Plain tiff further asserts that the trial court’s conclusion that plaintiff’s mental health issues did not amount to proper cause or a change of circumstances was inconsistent with its finding, when weighing the best interest factors, that factor (g) weighed in favor of plaintiff.

A review of the trial court’s w ritten opinion and order confir ms that the trial court duly considered plaintiff’s allegations regarding defendant’s mental health, her issues with anger, her consumption of alcohol and her history of cocaine abuse, as wel l as her reliance on the nanny and her need for time away from her children. Indeed, the tria l court opined that in spite of her use of a nanny, defendant does successfully parent KS on her ow n and that plaintiff failed to
demonstrate that defendant had a mental health condition or dia gnosis that would impede her from parenting KS. The trial court also recognized that while plaintiff had “successfully raise[d] some concerns about defendant’s anger . . .[,]” these issues pr edated the divorce judgment, originating at the beginning of plaintiff and defendant’s relat ionship, and did not amount to a change of circumstances. While plaintiff no doubt raised appro priate grounds that were relevant to MCL 722.23(b) and (g), the tria l court’s findings reflect it s conscientious determination that these grounds were not “of such magnitude to have a significant effect” on KS’s well-being.

Vodvarka , 259 Mich App at 512. The trial court also clearly made credi bility determinations in reaching this conclusion, as was properly within its province. Wright v Wright , 279 Mich App 291, 299; 761 NW2d 443 (2008). This conclusion is also not inc onsistent with the trial court’s finding with regard to factor (g), where the trial court noted that any mental health issues that defendant has, as the psychologi st noted, do not impede her abi lity to parent.

Addressing plaintiff’s allegati on that defendant liked to drin k alcohol and the issues surrounding her past substance abuse, the trial court noted tha t plaintiff himself, particularly during the trip to Hawaii in October 2013, encouraged defendantto consume alcohol. The trial court also noted that plaintiff encouraged defendant’s use of h is Vicodin pills during the Hawaii trip when defendant expressed an issue about her tooth pain. T he trial court indicated concern that plaintiff criticized defendant’s past cocaine abuse, yet m arried her knowing about this issue, had a child with her, and agreed that she would have primary cu stody of KS after they divorced knowing of her past. The trial court gave weight to the fact t hat defendant had been tested for drugs with both a urine and hair follicle drug test and that sh e passed both tests. In sum, the trial court determined that allegations pertaining to defendant’s men tal health, her anger issues, her need to have time away from KS, and her alcohol consumption and past substance abuse did not rise to the level of proper cause or a change in circumstances. The trial court’s factual findings were supported by the record evi dence, and therefore cannot be said to be against the great weight of the evidence.

Plaintiff also argues that the trial court inconsistently favo red plaintiff pursuant to factor (k), the best interest factor in MCL 722.23 involving domestic violence, but concluded that
defendant’s abusive behavior and verbal disparagement of plaint iff to KS did not amount to proper cause or a change of circumstances. While the trial cou rt, in weighing the best interest factors, did note that factor (k) favored plaintiff where he ha d alleged three instances of physical violence and defendant had acknowledged one, the trial court ga ve this factor limited weight, particularly where the record evidence reflected that plaintiff was likewise demeaning and aggressive toward defendant. The trial court cited text messag es from the record in support of-5- this conclusion. This conclusion is not inconsistent with the trial court’s determination concerning proper cause or a change of circumstances, where the trial court’s rationale on the

Vodvarka threshold clearly reflected its factual determination that thes e issues predated the judgment of divorce, and that they were not “significant enough , especially in comparison with Plaintiff’s own issues, to cons titute ‘proper cause.’ ”

Plaintiff also asserts that the trial court did not adequately address the issue of KS sleeping with defendant at night , the significant dental health issues that arose with KS while in defendant’s custody, and the multiple safety issues that plaint iff raised regarding KS while in
defendant’s care. Plaintiff further states that these issues a re also relevant to factors (c), “[t]he capacity and disposition of the parties involved to provide the child with food, clothing, medical care . . . [,]” (d) “[t]he length of time the child has lived i n a stable, satisfactory environment and the desirability of maintaining continuity[,]” (f) “[t]he moral fitness of the parties involved[,]” and (j) [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[.]” MCL 722.23(c), (d), (f), and (j). A review of the trial court’s opinion refle cts that it duly considered the safety issues alleged against defendant, concluding that they were “un proven” and therefore did not amount to proper cause or a change of circumstances.

The trial court also considered the issues with KS’s dental ca re in great detail, noting that KS’s dental problems developed over a period of time when both plaintiff and defendant had custody of KS and that neither par ty had noticed that KS was ex periencing dental issues. The
trial court also acknow ledged that while KS’ s dental problems w ere indeed “unfortunate[,]” there were no grounds to conclude that they were the fault of either party, and that defendant
addressed the situation to the b est of her ability as soon as s he became aware of it. The trial court ultimately ruled that plai ntiff was unavailing in contend ing that defendant was at fault for KS’s dental issues and that a finding of proper cause or change of circumstances was not
substantiated on that basis. To the extent that the trial cour t’s opinion and order does not expressly reference the evidence that KS had begun sleeping wit h defendant and the purported impact it was having on her rela tionship with plaintiff, the tr ial court was free to weigh the record evidence and discern what weight, if any, to give that e vidence in rendering its factual findings. Wright , 279 Mich App at 299.

Finally, plaintiff challenges the trial court’s findings on th e Vodvarka threshold where he asserts that the trial court improperly “minimiz[ed]” most of t he pertinent evidence in this case where it originated from the nanny. Plaintiff also argues that the trial court did not consider
evidence from defendant’s former husband that corroborated the nanny’s testimony and that it erred in giving defendant’s testimony credibility over the nann y’s. These issues question the trial court’s credibility assessments, as well as its weighing of the record evidence, determinations that this Court will defer to on appeal. Wright , 279 Mich App at 299; Draggoo v Draggoo , 223 Mich App 415, 429; 566 NW2d 642 (1997). In sum, the tria l court did not err in concluding that plaintiff faile d to establish proper cause or a change of circumstances.

Because the trial court had conducted a full trial, it decided to make a determination concerning the established custodial environment, MCL 722.27(1) (c), and to analyze the statutory best interest fact ors, MCL 722.23, although the court understood that it was unnecessary to do so considering its resolution of the threshol d issue on proper cause and a-6- change of circumstances. Plaintiff challenges the trial court’ s rulings with respect to the
established custodial environment and the best interest factors . Given our holding affirming the trial court’s decision that pl aintiff failed to establish prope r cause or a change of circumstances, it becomes unnecessary for us to examine whether the trial court e rred in regard to the established custodial environment and best interest factors, and we decline to do so. The trial court did not err in denying plaintiff’ s motion to modify custody.

Affirmed. Having fully prevailed on appeal, defendant is awarded taxable costs pursuant

to MCR 7.219.

/s/ William B. Murphy /s/ Cynthia Diane Stephens
/s/ Mark T. Boonstra