If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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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

THOMAS LYONS,

Plaintiff

- Appellant, UNPUBLISHED October 27, 2022

v No. 360944 Kent Circuit Court SHANNON LYONS, LC No. 19

- 002379

- DM

Defendant

- Appellee.

Before: S HAPIRO , P .J., and G ADOLA and Y ATES , JJ

.

P ER C URIAM

. Plaintiff Thomas Lyons appeals as of right the trial court’s order affirming the referee’s recommendation and order awarding defendant Shannon Lyons sole legal and physical custody of the parties’ children and requiring that plaintiff’s parenting time be supervised. F or the reasons stated in this opinion, we affirm the trial court’s custody and parenting

- time order

.

I

. BACKGROUND

This case arises out of the parties ’ dispute concerning the legal and physical custody of their children following their divorce. The parties have three children: BL, LL, and CL. According to the consent judgment of divorce , the parties agreed to share joint legal and physical custody of the children. However, the parties’ relationship deteriorated following the divorce. Pertinent to this appeal, defendant

- mother moved to change custody on the basis of plaintiff

- father ’s verbal and emotional abuse and his engagement in parental

- alienatio n tactics.

The trial court concluded that defendant had established a significant change of circumstances or proper cause. As a result, the court ordered the matter to the F riend of the C ourt to investigate physical and legal custody, parenting time, and child support. Following that investigation, the F riend of the C ourt sent its report and recommendation to the trial court. Plaintiff filed an objection to that recommendation, and the t rial court scheduled an evidentiary hearing before a referee

. Following a five

- day evidentiary hearing, the referee awarded defendant sole legal and primary physical custody. In addition, the referee recommended that plaintiff’s parenting time with the c hildren be supervised by one of his parents. Plaintiff filed an objection to the recommendation, but the trial court affirmed the recommendation. This appeal followed.- 2

- II

. ANALYSIS

A. CUSTODY

Plaintiff first argues that the trial court abused its discr etion by awarding sole legal and primary physical custody to defendant. We disagree. 1

MCL 722.27 concerns the powers of the trial court in a child

- custody dispute. In pertinent part, MCL 722.27(1)(c) provides that “[t] he court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. ” “ [C]ustody disputes are to be res olved in the child ’ s best interests, and [g]enerally, a trial court determines the best interests of the child by weighing the twelve statutory factors outlined in MCL 722.23. ” Demski v Petlick , 309 Mich App 404, 44 6 ; 873 NW2d 596 (2015) (quotation marks and citation omitted; alterations in original). “[T]he trial court has discretion to accord differing weight to the best

- interest factors.” Berger v Berger , 277 Mich App 700, 705; 747 NW2d 336 (2008).

Plaintiff argues that the referee erred by weighing the following factors in defendant’s favor:

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

1 “All orders and judgments of the circuit court regarding child custody and parenting time are to be affirmed unless the trial court made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” Demski v Petlick

, 309 Mich App 404, 444; 873 NW2d 596 (2015) , citing in part MCL 722.28. “In reviewing factual findings, this Court defers to the trial court’s determination of credibility.” Id . at 445. Moreover, “[t] he trial c ourt’s discretionary rulings, such as to whom to award custody, are reviewed for an abuse of discretion. ” Id

. An abuse of discretion occurs “ when the trial court’s decision is so palpably and grossly violative of fact and logic that it evidences a perver sity of will, a defiance of judgment, or the exercise of passion or bias. ” Id

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- (f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

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(j) The 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 or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

(k) Domestic vi olence, regardless of whether the violence was directed against or witnessed by the child.

Having reviewed the record, we conclude that the evidence did not clearly preponderate against the referee ’s findings on these factors. See Fletcher v Fletcher , 447 Mich 871, 879; 526 NW2d 889 (1994) (explaining that the “g reat weight of the evidence standard applies to all findings of fact ” and that a trial court’s finding on best

- interest factors “ should be affirmed unless the evidence clearly preponderates in the opposite direction.” ) (quotation marks and citations omitted).

Factor (b) concerns the capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her rel igion or creed, if any. The referee concluded that this factor strongly favored defendant, explaining that

, although it believed that both parties would continue to give the children love and affection, she was more likely to provide the children with app ropriate guidance. In support of this conclusion, the referee cited plaintiffs’ involvement of the children in the parties’ legal disputes and concluded that plaintiff’s inappropriate discussions with the children concerning court matters called into ques tion his judgment as a parent and rendered him unable or unwilling to provide proper guidance to his children. The referee further concluded that this factor was particularly weighty because appropriate guidance for young children with emotional challenge s was critical.

On appeal, plaintiff asserts that this factor should not have favored either party because defendant also acted inappropriately by recording her interactions with plaintiff and the children,

even when it made the children visibly upset. E ven if the testimony to this effect is accepted as true, it does not clearly preponderate against the trial court’s finding. The referee mentioned that on two occasions, BL accused defendant of lying after he returned from parenting time at p laintiff ’s home on the basis of things that plaintiff either showed or told him concerning the court proceedings. Moreover, the referee considered that plaintiff took BL to the police station to make a report against defendant’s boyfriend and that he had L L , who was not even five years old, direct him to the boyfriend’s home. Given plaintiff’s involvement of the children in his disputes with defendant , the referee’s conclusion that he would be unable to provide proper guidance to the children was not against the great weight of the evidence.

The referee also concluded that f actor (c) , which involves t he capacity of the parties to provide the child with food, clothing, medical care, and other material needs , favored defendant

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The referee explained that although both the parties had the ability to provide for the children’s needs, d efendant had more of a disposition to do so. In support of this conclusion, the referee observed that once p laintiff became involved in the children’s medical care, conflicts between the parties immediately caused delays in the children’s medical treatment. In addition, the referee pointed out that p laintiff interfered with the boys’ counseling to the point of destroying the therapeutic relationship, and a replacement had not been fou nd. Finally, the referee observed that

, although p laintiff was ordered to provide health insurance for the children, there had been issues with the children’s insurance and medical providers because p laintiff lost his employer

- provided insurance.

Plaintif f asserts that t his factor should weigh neutrally between the parties or in slight favor of p laintiff because d efendant ’s own testimony showed that she prevented p laintiff from being involved in the children’s medical care and that she delayed treatments for the children so that she could attend the appointments. However, the referee’s finding that this factor favor ed d efendant is not against the great weight of the eviden ce. Although there was testimony showing that p laintiff was involved in some of the children’s medical appointments and that the children could be on his wife’s insurance, there was evidence to support the conclusion that d efendant mainly handled the chil dren’s medical appointments and health insurance. T he F riend of the C ourt evaluator testified that it was his understanding that d efendant provided the majority of the children’s medical care and it was d efendant who applied for Medicaid health insurance for the children once p laintiff lost his health insurance. As it relates to the boys’ counseling, both d efendant and the counselor believed that the children would require a new counsel or as a result of p laintiff ’s actions. Specifically, plaintiff would become angry in discussions with the counselor and on one occasion called her a “ liar. ” Plaintiff commented on the counselor’s Google page that she was dishonest and should not be allowed to conduct session s with children. And d efendant testified that wh en she suggested other counsel ors , p laintiff took over 30 days to respond

, and the issue had yet to be resolved. Considering the testimony presented at the evidentiary hearing, and deferring to the trial court’s credibility determinations, p laintiff has not shown that the referee’s finding as to this factor is against the great weight of the evidence.

Plaintiff also contends that the referee erred in its conclusion that f actor (d)

— the length of time the child has lived in a stable, satisfactory envir onment, and the desirability of maintaining continuity

— favored d efendant . According to p laintiff , there was no evidence presented that his current home was somehow unstable or lacking in permanence. He argues that the referee placed an improper emphasis on the fact that he moved five times in two years before moving to his house in Lowell , where he had resided for a year . However, as noted by the referee, d efendant had lived in the marital home for over five years, which for all intents and purposes, was the only home known by the children. The children were comfortable there. They had friends in the neighborhood and were able to walk to and from school. As a result, although there was no evidence that p laintiff ’s home was unstable, the evidence presen ted as to the long

- term stability of d efendant ’s home supported the referee’s finding that this factor favored d efendant

. Factor (e) concerns the permanence, as a family unit, of the existing or proposed custodial home or homes. The referee found that thi s factor slightly favored d efendant because p laintiff ’s pursuit of an unfounded charge that defendant’s boyfriend assaulted one of the children . The referee also found that plaintiff’s conduct thereafter was either intended to or had the effect of eroding the permanence of d efendant ’s family unit. Plaintiff argues on appeal that

, although his- 5

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actions were misguided, they did not undermine the stability of d efendant ’s environment with the children , noting that d efendant’s boyfriend moved into her home after p laintiff ’s actions.

We do not believe that the referee’s finding that this factor slightly favored defendant is against the great weight of the evidence. The F riend of the C ourt evaluator testified that p laintiff placed much of the blame in r egard to issues concerning the children on d efendant , her environment, or her boyfriend . In addition, the evaluator noted his concern about d efendant ’s home environment because the children returned from parenting time with p laintiff calling d efendant nam es such as “liar.” The children also asked d efendant to lie in regard to her boyfriend’s presence so that pl aintiff did not become angry. Plaintiff also called the police to perform an unnecessary welfare check on the children and called animal control s everal times in regard to d efendant ’s puppy. The involvement of police and animal control caused stress on the children. I t was not against the great weight of the evidence for the referee to conclude that
p laintiff ’s actions negatively affected the perm anence of the family unit at d efendant ’s home.

Further, the referee concluded that the moral fitness of the parties, f actor (f), strongly favored d efendant . This conclusion was not against the great weight of the evidence. The record contained several e xamples of p laintiff callin g defendant derogatory and vulgar names and t he children calling defendant names when they returned home from parenting time with p laintiff

. Further, p laintiff told BL that d efendant was attempting to take the children away from p laintiff

, presumably so that BL would bec o me angry with d efendant and confront her. Accordingly, we find no merit to plaintiff’s argument on appeal that his conduct did not relate to his parental fitness. S ee Fletcher , 447 Mich at 887

. Plaintiff also contacted the police and Children’s Protective Services (CPS) in regard to the abuse allegations that were deemed to be unfounded. Instead of accepting the findings of the involved agencies, he continually con tacted the police department and CPS and disputed their findings. CPS found his communications threatening. Plaintiff then created a flyer identifying defendant’s boyfriend as a “child predator” and distributed that flyer in her neighborhood and at the c hildren’s school. The F riend of the C ourt evaluator opined that
p laintiff intentionally described the boyfriend as a child predator to create fear even though it did not fit the actual allegation.

On appeal, p laintiff argues that d efendant also admitted to using foul language toward
p laintiff and his wife. However, d efendant ’s admitted use of foul language on a couple of occasions does not sufficiently outweigh the evidence of plaintiff’s negative actions and communications. Accordingly, the referee’s conclusion that this factor strongly favored d efendant is not against the great weight of the evidence.

Factor (g) is the physical and mental health of the parties. The referee concluded that this factor slightly favored d efendant . First, t he referee noted that neither party presented much, if any, evidence concerning their physical health. The only testimony involving mental health came from the F riend of the C ourt evaluator. The evaluator explained that the parties submitted to psycholog ical evaluations and those evaluations did not reveal any troubling diagnosis for either party. However, the evaluator pointed out that there were numerous examples of manipulative conduct by p laintiff . The evaluator also noted that there were several tr oubling statements in
p laintiff ’s evaluation. According to the evaluator, p laintiff was difficult to interview, and his responses showed a potential lack of insight into his own parenting deficits. The evaluator found that p laintiff twisted and reframed issues to help himself

, and that he believed that everyone else- 6

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was incompetent, biased, and discriminated against him. The referee agreed with the evaluator’s overall conclusion, but because there was no mental

- health diagnosis and the psychological eval uations were not admitted into evidence, the referee found that this factor only slightly favored d efendant

. The referee’s conclusion was not against the great weight of the evidence. The F riend of the C ourt evaluator provided extensive testimony in regard to troubling behavior exhibited by
p laintiff toward d efendant , the children, the children’s counselor, CPS workers, and police officers. He indicated that CPS workers found that p laintiff ’s communications were threatening and increasingly irrational. Th e evaluator opined that the conclusions in the p laintiff ’s psychological evaluation were consistent with his narrative that denied accountability for his conduct. For these

reasons , the record contains sufficient support for the referee’s narrow finding t hat this factor slightly favored d efendant

. In regard to f

actor (j)

— the 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

— the referee concluded that this factor strongly weighed in favor of d efendant . This conclusion was not against the great weight of the evidence. On appeal, p laintiff asserts that he presented testimony showing that the parties effectively coparented for some time, and that d efendant bore some responsibility for the conflict between her and p laintiff , and her and the children. However, the F riend of the C ourt evaluator expressed his opinion that the parties could not effectively coparent and that it was n ot in the children’s best interests for the parties to have joint legal custody. As noted, the referee found that p laintiff used derogatory and vulgar insults in his communications with d efendant and that the children would also do so after parenting time with plaintiff. Defendant also testified that p laintiff , in violation of the judgment of divorce, did not allow her to speak to the children while plaintiff was on vacation with the children for 11 or 12 days

. Plaintiff testified that he enrolled the bo ys in equestrian vaulting

, but he did not invite d efendant to those events. And

, as noted, p laintiff called the police, CPS, and animal control to initiate unfounded investigations involving d efendant or her boyf r iend

. There was also testimony that p laintiff placed much of the blame concerning issues involving the children on d efendant , her home, or her boyf

r iend. Given the evidence showing that p laintiff interfered with the children having a healthy relationship with d efendant , the referee’s finding that this factor strongly favored d efendant was not against the great weight of the evidence.

Finally, p laintiff asserts that the referee erred by concluding that f actor (k), which focuses on domestic violence, strongly favored d efendant

. Plaintiff reite rates his contention that the animosity between the parties went both ways; however, there was significant evidence supporting the referee’s conclusion that p laintiff ’s conduct toward d efendant constituted harassment and emotional abuse. Defendant describ ed p laintiff as verbally and emotionally abusive and testified as to several examples . In one instance, d efendant walked to school to pick up the children during her parenting time. Plaintiff followed them home on a dirt bike while revving the engine. H e also dumped tras h out of his car into her driveway while picking up the children. Police officers and CPS workers expressed concern in regard to p laintiff ’s behavior and suggested that d efendant obtain a Personal Protection Order . Accordingly, p laintif f ’s argument on appeal is without merit

, and the referee’s finding as to this factor is not against the great weight of the evidence.- 7

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Because we affirm the trial court’s weigh ing of each best

- interest factor plaintiff contests
on ap peal, it necessarily follows that the trial court did not abuse its discretion by granting d efendant sole legal and physical custody of the children. See MacIntyre v MacIntyre (On Remand) , 267 Mich App 449, 459

- 460; 705 NW2d (2005) (holding that

, because the court properly

co nsidered each best

- interest factor and rendered factual findings consistent with the record evidence, there was no basis on which to find that the trial court abused its discretion by granting the plaintiff sole physical custody of the child).

C

. PARENTING TIME

Plaintiff also argues that the trial court erred by ordering that his parenting time be supervised. We disagree.

A parenting time order “may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time by a parent,” including “[r]equirements that parenting time occur in the presence of a third person or agency.” MCL 722.27a(9)(f). MCL 722.27a(1) states that “[p]arenting time shall be granted in accordance with the best interests of the child.” “T he best

- interest factors in MCL 722.23 and the [parenting

- time] factors listed in [MCL 722.27a(7)] are relevant to determining a child’s best interests.” Demski , 309 Mich App
at 456

.
In this case, the referee concluded that parenting

- time f actors (a), ( c), (e), and (f) favored supervision of plaintiff’s parenting time :

(a) The existence of any special circumstances or needs of the child.

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(c) The reasonable likelihood of abuse or neglect of the child during parenting time.

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(e) The inconvenience to, and burdensome impact or effect on, the child of traveling for purposes of parenting time.

(f) Whether a parent can reasonably be expected to exercise parenting time in accordance with the court order. [MCL 722.27a(7).]

The referee expl ained in regard to factor (a) that the children did not have any special circumstances that presented unusual needs; however, they exhibited emotional challenges. With respect to factor (c), the referee found no indication that either party would abuse or neglect the children. However, the referee explained that plaintiff’s statements in his closing argument , in combination with other considerations, caused concern for the physical and emotional health of the children while in his care. After stat ing that he would never stop fighting for his children

, plaintiff stated, “ I can anticipate this Court’s decision, however, I can also anticipate something traumatic happening to the children in the near future, specially [LL] if there is a drastic change in parenting time in favor of defendant. ” Plaintiff argues that his statement was not evidence and- 8

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that he was only expressing a concern for his children’s well

- being. Nonetheless, we see no error in the referee’s conclusion that plaintiff’s statement was “ inappropriate and alarming.” T here were emotional stability issues with two of the children , a nd there were also concerns about plaintiff’s behavior during parenting time

, such as his unwillingness to allow defendant telephone contact with the children, h is negative statements about defendant made in the presence of the children and his involvement of the children in the dispute by asking questions about defendant’s boyfriend. Finally, d efendant feared that plaintiff would take the children and leave if t he court ruled against him , and given his previous failures to abide by the court’s orders these concerns we re not unfounded. Accordingly, there was evidence presented to support the conclusion that f actor (f) supported supervised parenting time

. Moreove r, the trial court ordered that plaintiff’s parents could serve as the parenting

- time supervisors and so the requirement of supervision was less burdensome a s it did not require that a n agency or non

- family member conduct the supervision. T he referee’s fi ndings were not against the great weight of the evidence, and the trial court’s grant of supervised parenting time to plaintiff was not an abuse of discretion.

Affirmed.

/s/ Douglas B. Shapiro /s/ Michael F. Gadola /s/ Christopher P. Yates