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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ELIZABETH DOIN,

Plaintiff-Appellee,

UNPUBLISHED

October 11, 2018

v No. 343523

Ingham Circuit Court

RYAN VOGEL, LC No. 12-004276-DC

Defendant-Appellant.

Before: CAVANAGH, P.J., and MARKEY and LETICA, JJ.

PER CURIAM.

Defendant appeals by right the trial court’s order treating his motion for sole legal 

custody of the parties’ minor child and for modification of plaintiff’s parenting time as a motion 

for reconsideration and denying the motion. We affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

The parties have joint legal custody of the minor child. Initially, the parties agreed to 

joint physical custody and no child support. Beginning in September 2014, defendant was 

awarded primary physical custody. Plaintiff was granted parenting time mid-week and on 

alternating weekends. The parties’ relationship has been fraught with acrimony and poor 

communication. The Friend of the Court conciliator recommended that the parties participate in 

family and individual therapy with the goal of reducing the parties’ hostility towards one 

another. Defendant refused to participate, claiming that it was not in his or the child’s best 

interests.

Beginning in 2015 through 2018, defendant filed several unsuccessful ex parte motions 

attempting to restrict plaintiff’s parenting time. In March 2018, defendant filed a motion seeking 

sole legal custody, as well as a reduction of plaintiff’s parenting time and to have her parenting 

time supervised. The trial court treated the motion as a motion for reconsideration of a ruling it 

had earlier made on parenting time issues and denied the motion, noting that defendant had not 

established palpable error but had merely presented the same issues. After defendant’s motion 

for reconsideration was denied, this appeal followed.
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II. STANDARD OF REVIEW

Under MCL 722.28, all custody orders or judgments must be affirmed on appeal unless 

the trial court made findings of fact against the great weight of the evidence, committed a 

palpable abuse of discretion, or made a clear legal error on a major issue. An abuse of discretion 

exists when the result is so palpably and grossly violative of fact and logic that it evidences a 

perversity of will, a defiance of judgment, or the exercise of passion or bias. Shade v Wright,

291 Mich App 17, 21; 805 NW2d 1 (2010) (citation omitted). “A court commits clear legal error 

when it incorrectly chooses, interprets, or applies the law.” Schoensee v Bennett, 228 Mich App 

305, 312; 577 NW2d 915 (1998). We review de novo the interpretation and application of 

statutes and court rules. Brown v Loveman, 260 Mich App 576, 591; 680 NW2d 432 (2004).

III. ANALYSIS

Defendant argues that the trial court did not comply with MCR 3.210(C)(8) before 

denying his motion to modify custody and parenting time, and that he established proper cause or 

a change in circumstances sufficient to warrant a best interest hearing. We disagree.

MCL 722.27(1)(c) provides that a trial court may “modify or amend” a child custody 

order “for proper cause shown or because of change of circumstances” if doing so would be in 

the best interests of the child. In the context of a motion seeking a change in custody, to 

establish a “proper cause,” the movant must prove by a preponderance of the evidence that an 

appropriate ground for legal action exists, which should be relevant to at least one of the twelve 

statutory best interest factors and of such magnitude as to have a significant effect on the child’s 

well-being. Vodvarka v Grasmeyer, 259 Mich App 499, 511-512; 675 NW2d 847 (2003). To 

establish a “change of circumstances,” the movant must prove by a preponderance of the 

evidence that, “since the entry of the last custody order, the conditions surrounding custody of 

the child, which have or could have a significant effect on the child’s well-being, have materially 

changed.” Id. at 513. In other words, “the evidence must demonstrate something more than the 

normal life changes (both good and bad) that occur during the life of a child, 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 the context of a motion to modify a parenting time order, if a change in parenting time 

would change the established custodial environment of a child, the Vodvarka framework applies. 

Shade, 291 Mich App at 27. However, if the custodial environment would not change, normal 

life circumstances can give rise to cause for changing parenting time. Id. at 30-31 (holding that 

the “very normal life change” of “growing up” and becoming involved in activities that conflict 

with the parenting time schedule, “while insufficient to justify a change in custodial environment 

are precisely the types of considerations that trial courts should take into account in making 

determinations regarding modification of parenting time.”)

As the moving party, defendant was required, as a threshold matter, to first demonstrate 

to the trial court either proper cause or a change of circumstances before the court could proceed 

to an analysis of whether the requested modification is in the child’s best interests.

Gerstenschlager v Gerstenschlager, 292 Mich App 654, 657; 808 NW2d 811 (2011); Vodvarka, 
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259 Mich App at 508-509. An evidentiary hearing is required before custody can be changed, 

but the preliminary determinations whether proper cause or change of circumstances allows 

further consideration does not necessarily require an evidentiary hearing. Corporan v Henton, 

282 Mich App 599, 605; 766 NW2d 903 (2009). More specifically, MCR 3.210(C)(8) provides:

In deciding whether an evidentiary hearing is necessary with regard to a 

postjudgment motion to change custody, the court must determine, by requiring 

an offer of proof or otherwise, whether there are contested factual issues that must 

be resolved in order for the court to make an informed decision on the motion.

If there are disputed facts and the allegations, if proven, would constitute proper cause or a 

change in circumstances, the trial court must decide if an evidentiary hearing is required, i.e., it is 

a discretionary decision based on the facts of each case. Vodvarka, 259 Mich App at 512.

In this case, the record shows that defendant’s motion to modify custody and parenting 

time was premised primarily on allegations that had been repeatedly raised and reviewed by the 

court. From 2015 to 2018, the trial court reviewed defendant’s repeated assertions that the child

had scabies or bedbug bites and a rash that purportedly stemmed from plaintiff’s parenting time. 

These allegations have been raised numerous times and have been investigated through these 

several years. In December 2015, Child Protective Services promptly investigated defendant’s 

complaint and found that plaintiff’s house was clean and appropriate for minor children. In 

March 2016, the conciliator concluded that there was insufficient evidence that parenting time 

with plaintiff was the source of the child’s bug bites and opined that defendant had reported 

specific incidences of the child’s rashes in an attempt to gather evidence against plaintiff. The 

conciliator noted:

. . . CPS informed [defendant] that his repeated calls and complaints against the 

Plaintiff-mother, in which there was not a preponderance of evidence to support 

the complaint, are ‘counting against him’ at this point. It appears to this 

conciliator that the defendant-father may be attempting to alienate the Plaintiffmother from the minor as he is not satisfied with the Orders entered by this Court.

At a September 2016 hearing, plaintiff argued that defendant’s offered medical evidence 

supporting his assertions that the child suffered from scabies or bug bites because of plaintiff’s 

home was based on defendant’s self-reporting to medical providers. Further, plaintiff provided 

documentation establishing that a skin scraping and microscopic analysis could only 

affirmatively diagnose scabies—which had not been done—and that bedbug bites did not pose a 

substantial health risk. The trial court concluded that the type and source of the bug bites and the 

child’s rash were unknown and advised the parties to provide proof that the other parties’ home 

was the source and that their respective homes were pest-free. Although plaintiff took photos of 

the child showing that he had no bites or “scabies” after her parenting time ended on October 8, 

2016, defendant took the child to urgent care on October 10, 2016 where multiple insect bites 

were noted on his neck, back, chest, and upper and lower extremities. In November 2016, both 

parties provided documentation that their respective homes were free of bedbugs and fleas 

(defendant has two dogs).
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In July 2017, defendant claimed that the child continued to suffer from bedbug bites;

however, the medical evidence he provided reported that the child had bites caused by either 

bedbugs “or some other insect dermatitis” and that the child was not in acute distress. Defendant 

began to unilaterally deny plaintiff parenting time because of the alleged bedbug bites or scabies. 

In August 2017, medical providers concluded that the child’s bug bites or rash were caused by 

bedbugs, insect bites, or mites. On August 29, 2017, plaintiff again provided documentation that 

her house was pest-free. In November 2017, the Friend of the Court conciliator, after a joint 

meeting, concluded that it had not been established that plaintiff’s home was the source of the 

child’s recurring rash and defendant was advised that he could not deny plaintiff parenting time 

because the child was “injured or infected.” Defendant again sought ex parte relief after taking 

the child to urgent care on December 3, 2017 and reporting that the child had a rash because of 

bedbugs. The trial court denied that motion because of the lack of irreparable harm and referred 

that matter to the Friend of the Court for a referee hearing.

On January 29, 2018, plaintiff’s home and her grandmother’s home were inspected by a 

pest professional, approved by defendant, who concluded that there were no bedbugs or fleas. 

Plaintiff sought an order to show cause why defendant should not be held in contempt for 

repeatedly denying her parenting time despite showing that her house was not the source of the 

child’s bug bites or rash. Ultimately, the trial court granted plaintiff reasonable attorney fees 

incurred in attending four unnecessary hearings and awarded her additional parenting time to 

make up for the times wrongfully denied by defendant.

On March 8, 2018, defendant again sought ex parte relief in an attempt to have plaintiff’s 

parenting time supervised. Defendant continued to claim that plaintiff was the source of the 

child’s bedbug bites or scabies. Evidence offered included a one-page summary from a February 

11, 2018 urgent care visit. In less than two weeks from plaintiff’s pest-free home inspections, 

defendant reported to medical providers that the child had scabies after plaintiff’s parenting time. 

Although defendant repeatedly took the child to urgent care, nothing in the record indicates that 

defendant ever sought a skin scraping and microscopic analysis to support his repeated claim that 

the child suffered from scabies. Nonetheless “scabies” was cited as a reason for the visit and the 

child was prescribed a topical cream. Defendant also offered a medical report from a February 

26, 2018 urgent care visit. The child was diagnosed with a diffuse and moderate rash and

nonspecific insect bites. The child was observed to be well-developed, well-nourished, active,

and not in distress. Defendant also asserted for the first time that plaintiff had exposed the child

to secondhand smoke. The medical report noted secondhand smoke exposure and that both 

parents smoked. Defendant also claimed that the child was observed by medical providers to 

have bruise marks on his buttocks because plaintiff had beaten him with a belt. However, 

defendant’s offered proof, the medical record, only noted barely visible lesions on the child’s 

buttock, not bruising. Nothing in the offered medical evidence attributed the lesions or the 

presence of any marks to the child being struck by a belt. On March 9, 2018, defendant’s motion 

was again denied for lack of irreparable harm.

On March 14, 2018 defendant filed the motion to modify custody and parenting time at 

issue. He cited factual allegations that were substantially similar to those raised in his March 8, 

2018 ex parte motion. These allegations included that plaintiff was inactive in the child’s 

healthcare, that she acted inappropriately while caring for the child, that she returned the child 

with insect bites, bedbug bites or scabies, and that she hit the child with a belt to the point of 
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bruising his buttocks. Defendant also alleged that plaintiff was unable to financially support the 

child during parenting time. Although plaintiff had been behind in child support payments 

which may have been indicative of financial difficulties, it did not show that she was remiss in 

caring for the child and changes in economic circumstances, standing alone, are insufficient to 

warrant revisiting a previously entered child custody order. See Corporan, 282 Mich App at

606-607. Regarding other asserted facts, defendant newly claimed that plaintiff was inactive in 

the child’s academics, but did not assert that the child was struggling academically. If true, this 

fact did not rise to the level of a significant effect on the child’s well-being or a material change 

that had or would almost certainly have an effect on the child, particularly given that defendant 

has sole physical custody and plaintiff only has alternating weekends and mid-week parenting 

time.

We conclude that even if the trial court erred when it reviewed defendant’s motion to 

modify custody and parenting time as a motion for reconsideration, any error was harmless. 

Although defendant’s motion sought sole legal custody and a restriction on plaintiff’s parenting 

time, the factual underpinnings for the requested relief were essentially the same as they had 

been for several earlier motions. Defendant’s claim that MCR 3.210(C)(8) was violated is 

without merit. Under that rule, the trial court was to determine by “requiring an offer of proof or

otherwise” whether there were contested factual issues that must be resolved through an 

evidentiary hearing in order for the court to make an informed decision on the motion. MCR 

3.210(C)(8). In this case, the trial court properly exercised its discretion when it concluded that 

no hearing was required to determine the factual issue claimed in defendant’s motion pertaining 

to the child’s bug bites and skin issues, and that the newly asserted “facts,” if proved, would not 

constitute proper cause or a change in circumstances warranting a change in custody. See

Vodvarka, 259 Mich App at 512.

The purpose of this threshold showing “is to minimize unwarranted and disruptive 

changes of custody orders, except under the most compelling circumstances.” Corporan, 282 

Mich App at 603. Here, defendant raised an unsubstantiated claim that plaintiff’s house was the

source of the child’s bug bites and skin issues. But there was no serious dispute regarding the 

condition of plaintiff’s home; it had repeatedly been cleared as the source of bugs and scabies by 

professional pest exterminators, as well as by Child Protective Services. Defendant also raised

an unsubstantiated allegation of smoking in front of the child and that the child had been hit with 

a belt but no markings substantiated the assertion. There was an allegation of noninvolvement in 

schooling, but even if true this claim would not establish that a change from joint legal custody 

to sole legal custody would “have a significant effect on the child’s life to the extent that a 

reevaluation of the child’s custodial situation should be undertaken.” Vodvarka, 259 Mich App 

at 511. Accordingly, defendant failed to meet the threshold of showing proper cause or a change 

in circumstances warranted a change in custody.

As for the parenting time issue, the trial court’s implicit conclusion that defendant failed 

to meet the lower threshold necessary to change plaintiff’s parenting time was also not in error. 

“Whereas the primary concern in child custody determinations is the stability of the child’s 

environment and avoidance of unwarranted and disruptive custody changes, the focus of 

parenting time is to foster a strong relationship between the child and the child’s parents.” 

Shade, 291 Mich App at 28-29. Under the circumstance of this case, including: (1) the repeated 

failure to substantiate that the child’s skin issues or bug bites emanated from plaintiff’s home; (2)
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that the medical record did not substantiate any abuse; (3) that occasionally smoking in the house 

does not rise to the level of proper cause or a change in circumstances justifying a reduction in 

parenting time; and (4) that reducing plaintiff’s parenting time because of her alleged 

noninvolvement in schooling would do nothing to foster the relationship between her and the 

child, we agree with the trial court that defendant’s allegations did not warrant a hearing on 

proper cause or a change in circumstances and, if accepted as true, did not establish proper cause 

or a change in circumstances sufficient to warrant a best interest hearing.

Affirmed.

/s/ Mark J. Cavanagh

/s/ Jane E. Markey

/s/ Anica Letica