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### STATE OF MICHIGAN

COURT OF APPEALS

RANE R. WALKER II,

Plaintiff-Appellant, UNPUBLISHED April 13, 2017

v No. 334752 Oakland Circuit Court Family Division SARAH JEAN WALKER, LC No. 2009-765043-DM

Defendant-Appellee.

Before: M ARKEY , P.J., and W ILDER and S WARTZLE , JJ.

P ER C URIAM

. Plaintiff appeals by right the trial court’s order denying his motion to change custody and parenting time. We affirm.

The parties were divorced on March 22, 2010, and agreed to sha re joint legal and physical custody of their two mi nor children, XW and LW, throug h a consent judgment of divorce. Then, on May 4, 2010, plaintiff gave physical custody of the children to defendant because he believed that he could not join the military and mai ntain joint physical custody.

On December 28, 2010, plaintiff filed a motion to both set asi de that consent order because he had not actually joined the military and to request sole physical custody of the children. Following mediation, th e parties entered into a sett lement agreement on October 18, 2011. The agreement provided that the parties would continue t o share joint legal custody but that defendant would retain physical custody. The agreement al so awarded plaintiff parenting time with the children every othe r weekend, from Friday to Mond ay, and every Wednesday.

Plaintiff filed another motion for modification of custody and other relief on February 27, 2015, requesting primary physical custody and asserting that de fendant failed to meet the children’s medical or hygiene needs, refused to allow him to ha ve the children vaccinated, left the children unattended, refused to allow the children to see a psychologist outside of her Christian counselor, attempted to dissuade the children from di scussing their feelings, and failed to ensure completion of the children’s homework. The trial cou rt held a hearing on March 11, 2015, and entered an order requiring the parties to follow a pe diatrician’s recommendations regarding vaccinations and that the children begin to see a cou nselor. The order also stated that plaintiff could allege a contin uing pattern of behavior with re gard to defendant in any future custody motions.-2- Finally, on April 15, 2016, plaintiff filed the motion at issu e to change custody and parenting time, requesting that the court award joint physical custody with 50-50 parenting time. In support of his motion, plaintiff pointed to a letter sent to the trial court by the children’s counselor, Dr. Priya K. Rao, in w hich the counselor alleged tha t defendant was resistant to coparenting, discouraged the ch ildren from discussing their fee lings, left the children unattended, failed to ensure that the children maintained good hygiene, fai led to require that the children complete their homework, and lacked time and attentiveness for the children. Following hearings on April 27, 2016, and May 18, 2016, the trial court e ntered an order determining that plaintiff had failed to meet the threshold necessary for entitl ement to a hearing regarding modification of cust ody or parenting time.

Plaintiff first argues on appeal that he demonstrated a suffic ient change of circumstances to warrant a hearing regardi ng change of custody. We disagree.

“This Court must affirm all custody orders unless the trial co urt’s findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue.” Berger v Berger , 277 Mich App 700, 705; 747 NW2d 336 (2008), citing MCL 722.28. A trial court’s findin gs of fact are against the great weight of the evidence if “the evidence clearly preponderates i n the opposite direction.” McIntosh v McIntosh , 282 Mich App 471, 474; 768 NW2d 325 (2009). This Court must defer to the credibility determinations made by the trial court. Id . at 474-475. “An abuse of discretion with regard to a custody issue occurs ‘when the trial court’s d ecision is so palpably and grossly violative of fact and logic that it evidences a perversity of w ill, a defiance of judgment, or the exercise of passion or bias.’ ” Mitchell v Mitchell , 296 Mich App 513, 522; 823 NW2d 153 (2012), quoting Berger , 277 Mich App at 705. Finally, “[t]he clear legal error stand ard applies when the trial court errs in its choice, interpretation, or app lication of the existing law.” Shulick v Richards , 273 Mich App 320, 323; 729 NW2d 533 (2006). “This Court revi ews a trial court’s determination regarding whether a party has demonstrated proper cause or a change of circumstances under the 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 (2003).

“MCL 722.27(1)(c) provides that if a child custody dispute has arisen from another action in the circuit court, the court may ‘[m]odify or amend its prev ious judgments or orders for proper cause shown or because of change of circumstances . . . .’ ” Vodvarka , 259 Mich App at 508 (alteration in original). The moving party must prove, by a pr eponderance of the evidence, the existence of proper cause or a change of circumstances before t he trial court may conduct a hearing to review the custodial best-interest factors. Corporan , 282 Mich App at 603-604. “Although the threshold consideration of whether there was prop er cause or a change of circumstances might be fact-intensive, the court need not neces sarily conduct an evidentiary hearing on the topic.” Id . at 605, citing Vodvarka , 259 Mich App at 512.

To demonstrate a change of circumstances, “a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of t he child[ren], which have or could have a significant effect on the child[ ren]’s well-being, have materially changed .” Vodvarka

, 259 Mich App at 513. Further, “the evidence must demonstrate s omething more than the normal life changes (both good and bad) t hat occur during the life of a child, and there must be at least-3- some evidence that the material changes have had or will almost certainly have an effect on the child.” Id . at 513-514. The escalation of d isagreements between parties regarding matters that have a significant effect on the children’s welfare may constit ute proper cause or change of circumstances. See Dailey v Kloenhamer , 291 Mich App 660, 666; 811 NW2d 501 (2011).

On appeal, plaintiff argues only that he sufficiently demonstr ated a change of circumstances to warrant a c ustody hearing. He does not assert that he establi shed proper cause.

In support of his motion for a change of custody, plaintiff in troduced a letter written by the children’s counselor, which suggested that defendant discou raged the children from discussing their challenges, left the children to fend for them selves while in her care, failed to meet the children’s hygiene needs, and failed to ensure that th e children completed homework assignments. At the hearing on May 18, 2016, he also asserted that defendant’s involvement in a domestic violence incident in 2013 and the CPS investigations a gainst defendant warranted a change in custody.

In response, defendant, both directly and through counsel, con tended that the children showered at her house, that she was encouraging XW to wear deod orant, and that the children were doing fine in school. Defendant’s counsel also stated tha t it was plaintiff who had actually called CPS against defendant and that his claim was unsubstanti ated. Further, when questioned by the trial court, plaintiff admitted that the children were d oing well in school, that the children had not been involved in the 2013 domestic violence incident, a nd that he knew about the CPS involvement before the last motion hearing.

From this record, we conclude tha t the trial court did not err when it determined that plaintiff failed to demonstrate by a preponderance of the evide nce a material change of circumstances which could have a significant effect on the chil dren’s well-being. As discussed above, most of plaintiff’s allega tions were disputed by defenda nt, and plaintiff presented limited substantive evidence. Many of t he allegations amounted to norm al life changes insufficient to warrant a change in custody. Hygiene issues and homework strug gles are common for many children the same ages as XW and LW. Further, plaintiff admitt ed that the children had not been involved in defendant’s 2013 domestic violence incident and tha t he knew of defendant’s CPS contact before the last motion hearing. Thus, the trial court’ s determination that plaintiff failed to meet the threshold requisite to revisit custody was not agai nst the great weight of the evidence; consequently, the trial court di d not abuse its discretion by d enying plaintiff’s request for a custody hearing.

Second, plaintiff argues that he demonstrated a sufficient cha nge of circumstances to warrant a hearing regarding modi fication of parenting time. We disagree.

“Orders concerning parenting time must be affirmed on appeal u nless the trial court’s findings were against the great weight of the evidence, the cou rt committed a palpable abuse of discretion, or the court made a clear legal error on a major is sue.” Shade v Wright , 291 Mich App 17, 20-21; 805 NW2d 1 (2010) (citation omitted). The great weight of the evidence standard applies to this Court review of a trial court’s determ ination regarding whether a party has demonstrated proper cause or a change of circumstances. Corporan , 282 Mich App at 605.-4- To make its determination regarding proper cause or change of circumstances in the context of a request to modify parenting time, a trial court sh ould first look to the children’s established custodial environment. “If a change in parenting t ime results in a change in the established custodial environment, then the Vodvarka framework is appropriate.” Shade , 291 Mich App at 27. In contrast, “a more expansive definition of ‘ proper cause’ or ‘change of circumstances’ is appropriate fo r determinations regarding pare nting time when a modification in parenting time does not alter th e established custodial environ ment.” Id . at 27-28. Under this more expansive definition, “the v ery normal life change factors that Vodvarka finds insufficient to justify a change in custodial environment are precisely the types of considerations that trial courts should take into account in making determinations regard ing modification of parenting time.” Id . at 30.

An established custodial environment “is the environment in wh ich ‘over an appreciable time the child naturally looks to the custodian in that environ ment for guidance, discipline, the necessities of life, and parental comfort.’ ” Pierron v Pierron , 486 Mich 81, 85-86; 782 NW2d 480 (2010), quoting MCL 722.27(1)(c). Established custodial en vironments may exist with both parents at the same time. Berger , 277 Mich App at 707.

Although plaintiff does not argue on appeal that the trial cou rt erred by failing to make a determination regarding the children’s established custodial en vironment and does not actually assert that the Shade framework should apply to his request for modification of pare nting time, it is clear from the record that the trial court made no findings or determinations regarding the children’s established custodial environment. Instead, the tri al court simply concluded that plaintiff had not met the thres hold necessary to revisit parent ing time.

Generally, where a trial court must determine whether an estab lished custodial environment exists and fails to do so, “ ‘this Court will reman d for a finding unless there is sufficient information in the record for this Court to make its own determination of this issue by de novo review.’ ” Jack v Jack , 239 Mich App 668, 670; 610 NW2d 231 (2000), quoting Thames v Thames , 191 Mich App 299, 304; 477 NW2d 496 (1991). There is insuffi cient evidence in the record for this Court to make a de novo determi nation regarding the children’s established custodial environment. No real testimony was taken at the motion hearings, and this Court has not been provided with an FOC recommendation made nea r the time of the hearings. Thus, the trial court erred when it failed to make a determinat ion regarding the children’s established custodial environment.

We conclude, however, that the trial court’s error was harmles s. Even under the Shade framework expanding the definition of a change of circumstances , plaintiff failed to demonstrate a change of circumstances sufficient to warrant a parenting-tim e modification. As discussed above, in support of his request to change parenting time, plai ntiff relied upon the counselor’s letter to the trial court and the allegations made within, defe ndant’s past domestic violence incident, and defendant’s contact with CPS. Even assuming that if true, plaintiff’s allegations amounted to the types of life changes sufficient to support a m odification of parenting time, the trial court could have reasonably determined that they had not been proven by a preponderance of the evidence. The children’s counselor did not testify at t he hearings, and defendant disputed many of the claims. Further, plaintiff admitted that the child ren were doing well in school, that-5- the children had not been involve d in defendant’s 2013 domestic violence incident, and that he knew about defendant’s contact w ith CPS before the last motion hearing.

We affirm.

/s/ Jane E. Markey /s/ Kurtis T. Wilder /s/ Brock A. Swartzle