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### STATE OF MICHIGAN

COURT OF APPEALS

BETHANY VI SHERMAN,

Plaintiff-Appellant, UNPUBLISHED October 6, 2016

v No. 331622 Eaton County Circuit Court JAY EDWARD SHERMAN, JR., LC No. 15-000223-DM

Defendant-Appellee.

Before: R IORDAN , P.J., and M ETER and O WENS , JJ.

P ER C URIAM

.

Plaintiff appeals as of right from a divorce judgment, challen ging the award of joint physical custody of the parties’ two minor children, born in 20 09 and 2010, to plaintiff and

defendant. The trial court determined that there was an establ ished custodial environment in plaintiff’s and defendant’s indi vidual households and thus appl ied a clear-and-convincingevidence standard when determining whether there should be a ch ange in physical custody. We

affirm.

Two issues are raised on appeal. First, plaintiff contends th at the evidence at trial

established that there was an established custodial environment only with plaintiff, and not with plaintiff and defendant. Second, plaintiff claims that the tri al court erred in failing to apply a preponderance-of-the-evidence standard when determining whether the children’s best interests required a change of physical custody. We disagree.

As noted in MCL 722.28, all orders and judgments of the circuit court concerning custody of children “shall be affirmed on appeal unless the tri al judge made findings of fact against the great weight of evidence or committed a palpable ab use of discretion or a clear legal error on a major issue.” See also Pierron v Pierron , 486 Mich 81, 85; 782 NW2d 480 (2010). The great-weight-of-the-evidence standard applies to all findin gs of fact, including the existence of an established custodial environment, and this Court should affirm unless the evidence clearly preponderates in the opposite direction. Id .; Hunter v Hunter , 484 Mich 247, 257; 771 NW2d 694 (2009); Hayes v Hayes

, 209 Mich App 385, 387-388; 532 NW2d 190 (1995).

A trial court must determine whe ther there is an established c ustodial environment with either or both parents before en tering an initial custody order or amending an existing order. MCL 722.27(1)(c); Kessler v Kessler , 295 Mich App 54, 61; 811 NW2d 39 (2011). A custodial-2- environment is established if, over an appreciable time, “the c hild naturally looks to the

custodian in that environment for guidance, discipline, the nec essities of life, and parental comfort. The age of the child, th e physical environment, and t he inclination of the custodian and the child as to permanency of the relationship shall also be co nsidered.” MCL 722.27(1)(c). The trial court must examine the underlying facts, looking to the a ctual circumstances regardless of the wording of prior orders, and apply the statutory definition when making its determination.
Hayes

, 209 Mich App at 387-389.

The trial court’s finding that the children had an established custodial environment with plaintiff and defendant was not a gainst the great weight of the evidence.

By way of background, the record shows that the parties reside d together in the marital home for several years and both were involved in rearing their children. Befor e the breakdown of the marriage, defendant and plaintiff were level-headed and shared in the responsibility of raising the children, and there was a bond of love and affectio n between the children and each parent. In the spring of 2014, pl aintiff engaged in an emotion al affair with a coworker, which appears to have had a markedly negative impact on defendant. H e began to drink heavily, was verbally aggressive towards plaintiff, threatened to commit sui cide, and at one point put a pistol to his head in front of plaintiff. Moreover, in January 2015, he was charged with driving while under the influence of alcohol and on April 9, 2015, he pleaded guilty to operating a vehicle while impaired. Defendant got drunk in May 2015, which was a b ond violation, but had since stopped drinking and was participat ing in breathal yzer testing.

In March 2015, plaintiff moved out of the marital home and fil ed for divorce; she claimed that defendant’s drinking issue had led to a communication brea kdown. Defendant remained in the marital home and the parties consented to joint legal and p hysical custody of the children. Defendant began counseling after plaintiff filed for divorce. He testified that counseling had helped him to regain control of his emotions following the natu ral tumult of divorce.

The children resided with plaintiff and defendant on alternati ng weeks. It is true that defendant agreed that plaintiff should temporarily have sole ph ysical custody from May 30 to June 29, 2015, after his bond violation, because it was uncerta in at that time if he would be serving time in jail and be una ble to parent the children. How ever, it is clear from the record that the change in custody was intended to be and in fact was tempor ary. Indeed, the joint physical custody arrangement subsequently resumed.

The evidence at the de novo hearing showed that defendant was no longer drinking alcohol and that that he maintained an active role in caring fo r the children on a lternating weeks.

He met with the oldest child’s teacher to discuss certain issue s. He guided his daughter in how

to behave better at school and make friends. Defendant also so ught advice on how to help with the child’s homework. Although defendant acknowledged that pla intiff was more involved in the children’s medical care, he shared in the responsibility of taking the children to appointments. Also, and significan tly, defendant took correcti ve measures regarding the unsanitary conditions in the hom e caused by his untrained dog; he re-homed the dog.-3- Amanda Daft, plaintiff’s aunt, resided with defendant from Jun e to mid-October in 2015. Although she took issue with the conditions of defendant’s home largely related to the dog, she admitted that the house was acceptable until defendant acquired the dog. Moreover, she had

observed defendant in his home with the children and described the interactions as “[t]ypical family like.” She said he was aware of the children’s whereabo uts, she did not observe that the children’s clothing was inappropr iate or defective and noted th at defendant periodically did the children’s laundry, and she noted that defendant would drive th e children to daycare in the mornings and pick them up in the evenings. She said that the c hildren were fed and were bathed regularly, and that defendant and the children had an evening r outine. She did not observe defendant using tobacco or alcoho l and opined that the children and defendant loved each other.

The evidence supported the trial court’s findings that the chi ldren looked to both plaintiff and defendant for love, affection, guidance, and the necessitie s of life. The trial court properly concluded that each parent had appropriately par ented the child ren on an alternative weekly basis and thus properly determined that there was a joint established custodial environment. The trial court’s finding that the children had an established custodial environment with plaintiff and defendant was not against the g reat weight of the evidence.

Plaintiff also argues that the trial court legally erred by fa iling to weigh the best-interests factors using a preponderance-of -the-evidence standard. Howeve r, given that the trial court properly found that an establishe d custodial environment existe d with plaintiff a nd defendant, the trial court used the appropriate clear-and-convincing-evidence standard in determining whether a change in physical custody was warranted. MCL 722.27(1)(c). Hunter , 484 Mich at 259. A joint established custodial envi ronment may not be disrupted by either parent absent clear and convincing evidence. Powery v Wells , 278 Mich App 526, 529; 752 NW2d 47 (2008). Significantly, plaintiff does not argue that there was clear an d convincing evidence to support a change of custody, but only that a preponderance-of-the-evidenc e standard should have been

used. She has not establish ed grounds for reversal.

Affirmed.

/s/ Michael J. Riordan

/s/ Patrick M. Meter

/s/ Donald S. Owens