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### STATE OF MICHIGAN

COURT OF APPEALS

KRISTEN SELBY, forme rly known as, KRISTEN STANLEY,

Plaintiff-Appellee, UNPUBLISHED April 4, 2017

v No. 334612 Alpena Circuit Court ROBERT LISTER, LC No. 10-003290-DP

Defendant-Appellant.

Before: B ECKERING , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

.
In this child-custody proceeding, defendant, Robert Lister, ap peals as of right from the trial court’s order denying his motion to change custody. For the reasons discussed below, we
affirm.

I. PERTINENT FACTS

In 2010, the trial court entered an order of filiation conferr ing joint legal custody of the parties’ minor child to both part ies and awarding plaintiff, Kr isten Selby, primary physical custody. Since that time, the child resided with plaintiff and had liberal parenting time with defendant. Defendant filed a motion to change custody based up on the child’s school absences, plaintiff’s frequent changes of residence, and an investigation by child protective services (CPS).

The trial court held a motion he aring, at which defendant intr oduced into evidence attendance records indicating that the child had numerous absen ces in kindergarten and had been marked tardy multiple times. Defendant also testified that pla intiff had resided in several different residences over the pa st six years and had changed jo bs several times, and that CPS had opened an investigation based on a report that the child at iss ue had inappropriately touched another child. Defendant also alleged that the child sometimes smelled of marijuana at parenting-time exchanges, but admitted that plaintiff could be using marijuana legally, and that he had never seen her smoke marijuana while driving or in the c hild’s presence. Defendant testified that he exercised “open parenting time,” and that pla intiff had never unreasonably
denied him access to the child.

Plaintiff admitted that, during times when she was working lon g hours, she sometimes was unable to get up in time to take the child to school, but t estified that, after defendant brought-2- the absences to her attention, she sought to change her hours t o address the problem. Plaintiff
also testified that defendant’s failure to take the child to sc hool whenever he exercised parenting time during the week contributed to some of the child’s school absences. She admitted that she had had several different residences and jobs since 2010. Howe ver, she testified that the child attended a private charter school, so changes in school distric t would not affect him, and that she believed every change in employme nt was to enable her to better care for her children by earning more or being able to spend more time with them. 1 Regarding the CPS inve stigation, plaintiff disputed defendant’s allegation that she was unconcerned about it, noted that it arose from conduct that occurred at defendant’s house, and said that it wa s similar to a previous investigation that CPS had closed after determining “it was jus t them being kids.” With respect to the child smelling of marijuana at parenting-time exchanges, plaintiff testified that she had had a medical marijuana card since 2009, when doctors diagnosed her with cachexia. However, she denied smoking marijuana around the child, and asserted that de fendant had never said anything to her about the child allegedly smelling of marijuana. Finall y, plaintiff asserted, and defendant admitted, that defendant had taken and withheld the child from her for 40 days.

Subsequent to the evidentiary h earing, the trial court denied defendant’s motion to change custody.

II. ANALYSIS

Generally, we affirm orders and judgments of the circuit court related to child custody “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.” MCL 722.28. Under the great weight of the evidence sta ndard, this Court should not su bstitute its judgment on questions
of fact unless the facts clear ly preponderate in the opposite d irection. Rittershaus v Rittershaus

, 273 Mich App 462, 473; 730 NW2d 262 (2007) (quotation marks and citation omitted). In child custody cases, “[a]n abuse of dis cretion exists when the trial court’s decision is so palpably and grossly violative of fact and logic that it evidences a pervers ity of will, a defiance of judgment, or the exercise of passion or bias.” Berger v Berger , 277 Mich App 700, 705, 747 NW2d 336 (2008). Clear legal error occurs “when the trial court errs in its choice, interpretation, or application of the existing law.” Shulick v Richards , 273 Mich App 320, 323; 729 NW2d 533 (2006).

A court may modify or amend a child custody order “for proper cause shown or because of a change of circumstances.” MCL 722.27(1)(c); Vodvarka v Grasmeyer , 259 Mich App 499, 508; 675 NW2d 847 (2003)(quotation marks and citation omitted). The moving party bears the “burden of proving by a prepondera nce of the evidence that eith er proper cause or a change of
circumstances exists before the trial court can consider whethe r an established custodial
environment exists . . . and conduct a review of the best inter est factors.” Id . at 509. To establish proper cause, the moving party must establish an appr opriate ground that would justify the trial court taking action. Id . at 511. “Appropriate grounds should include at least one of the 12 statutory best-interest fact ors and must concern matters tha t have or could have a significant

1 Plaintiff has two other minor children.-3- effect on the child’s life.” Mitchell v Mitchell , 296 Mich App 513, 517; 823 NW2d 153 (2012). To establish a change in circumstance, a party must demonstrate 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.” Vodvarka , 259 Mich App at 513. “[T]he evidence must demonstrate something more than t he 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.

Defendant contends that the tria l court erred when it failed t o find proper cause or a change in circumstances suffici ent to revisit the current custo dy order. We disagree.

In a brief written order, the trial court noted that, because the child had not been in school at the time the court entered the order of filiation, the court could not characterize the child’s kindergarten absenteeism and tard iness as a change in circumsta nces. Nevertheless, the trial court expressed its concern abou t the child’s attendance record , and found that the documented absenteeism and tardiness affected the child’s well-being, thou gh the extent of the effect was
unclear. 2 The court found “of lesser concer n” defendant’s allegations c oncerning “other irregularities in the Plaintiff’s life[.]” Specifically, the c ourt found defendant’s references to “frequent changes of residence and a CPS investigation” without substance. In addition, the trial court stated that it found plaintiff’s testimony substantially more credible than that of defendant. Finally, the trial court found it “totally unacceptable” that d efendant “took primary physical custody of [the child] in the face of an Order that the mother have primary physical custody, and withheld contact between [the ch ild] and [the child’s] mother f or a period in excess of 40 days.”

Based on this record, we conclu de that the trial court’s findi ngs were not against the great weight of the evidence. With r egard to the child’s school atte ndance, we agree with the trial court’s expression of concern, but find nothing in the record t o contradict the trial court’s
assessment that the effect of the child’s absenteeism and tardi ness in kindergarten was unclear. Accordingly, the trial court could not find, with any degree of certainty, that the absences had a significant effect on the child’s life. The trial court found p laintiff’s testimony “substantially more credible” than that of defendant, and, as we have previous ly noted, “we respect the trial court’s superior position to ass ess the credibility of the witn esses appearing befo re it and will not
revisit those assessments in this forum.” Shann v Shann , 293 Mich App 302, 307; 809 NW2d 435 (2011).

Plaintiff admitted to changing residences several times since 2010. However, she testified to the reasons behind some of her moves, her network of friends and family in the area, and the stability created by the child’s enrollment in the same private charter academy regardless of where plaintiff lived. Based on the record evidence present ed, and considering that defendant neither alleged nor showed that plaintiff’s changes in residenc e detrimentally affected the child

2 As noted above, a finding of proper cause or a change of circu mstances requires that the
conditions at issue have or could have a significant effect on the child’s life. Mitchell , 296 Mich App at 517; Vodvarka , 259 Mich App at 513.-4- or deprived the child of parenting time with defendant, we cann ot find that the changes in residence had a significant effect on the child’s life. Mitchell , 296 Mich App at 517.

Further, with respect to defendant’s allegations regarding the CPS investigation, although removal of a child from the home by CPS is sufficient evidence of a change in circumstances for a trial court to consider a change in custody, Shann , 293 Mich App at 306, such is not the case here. No hearing testimony suggested that CPS has ever removed the child from plaintiff’s care. In addition, plaintiff disputed defendant’s allegation that she was not concerned about the investigation, and she testified to the steps she had taken and the contacts she had made to address the issue. Moreover, d efendant could not say whether a n investigation was ongoing. Thus, nothing in the record indicates that the trial court’s co nclusion that defendant’s allegations regarding the CPS investigation were without substance is again st the great weight of the
evidence.

Defendant suggests that the trial court’s denial of his motion was punishment for his withholding the child from plaintiff for more than 40 days. It is true that the trial court found defendant’s withholding of the ch ild from plaintiff “totally un acceptable.” It is conceivable that defendant’s actions, which, in the trial court’s view, reflecte d a disregard for the court’s order, judicial procedure, and the parti es’ pattern of alternating par enting time during the summer months, contributed significantl y to the trial court’s negative assessment of defendant’s credibility. Consequently, the tr ial court’s assessment of def endant’s credibility likely affected the court’s findings of fact, part icularly as the parties’ test imony comprised the bulk of the
evidence offered at the hearing. As we st ated above, however, we will not revisit the trial court’s credibility assessments. Shann , 293 Mich App at 307.

III. CONCLUSION

Deferring to the trial court’s credibility determinations, id ., we conclude that the trial court’s findings of fact were not against the great weight of t he evidence. See MCL 722.28. Thus, defendant did not meet his burden to show by a prepondera nce of the evidence that proper cause or a change in circumstances exists to revisit the curren t custody order. See MCL 722.27(1)(c); Vodvarka , 259 Mich App at 508. Accordingly, we affirm the trial court’ s order denying defendant’s motion for a change in custody. MCL 722.28 . Given that a trial court must find proper cause or a change in circumstances before proceedin g to a best-interest analysis,
Vodvarka , 259 Mich App at 509, we need not address defendant’s claim of error based on the
trial court’s failure to conduc t a best-interest analysis.

Affirmed.

/s/ Jane M. Beckering
/s/ Peter D. O’Connell /s/ Stephen L. Borrello