BEST INTEREST ANALYSIS

CUSTODY, PARENTING TIME, ATTORNEY FEES AND MORE.
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Issues:
Custody; Established custodial environment; Fletcher v. Fletcher; Foskett v. Foskett; Jack v. Jack; Baker v. Baker; Ireland v. Smith; Best interest factors (b), ©), (d), (e), (f), (g), (j), and (k);
Whether the trial court violated the automatic stay rule in MCR 2.614(A)(1); Bayati v. Bayati; Loyd v. Loyd;
Denial of motion for new trial under MCR 2.611; Gilbert v. DaimlerChrysler Corp.; Trial court’s failure to apply MCL 722.31(4); Fast Air, Inc. v. Knight; Spires v. Bergman;
Whether the trial court deviated from the formula prescribed by the Michigan Child Support Formula when it imputed income to defendant-mother without explaining its deviation pursuant to MCL 552.605(2); Ghidotti v. Barber; Stallworth v. Stallworth;
Attorney fees; Reed v. Reed;
Whether the parenting time awarded to defendant in the divorce judgment was not feasible because she moved from Virginia to Florida after the judgment was entered; Appellate attorney fees and costs
Court: Michigan Court of Appeals (Unpublished), No.276038
Case Name: Rasmussen v. Casamatta
e-Journal Number: 37989
Judge(s): Per Curiam - Donofrio, Sawyer, and Cavanagh
Washtenaw Circuit Court No. 05-000390-DM(12/20/07)

The trial court properly awarded the plaintiff-father sole legal custody and primary physical custody of the parties’ child.
DAD WAS OUT OF STATE
There was evidence to support the trial court’s finding plaintiff actively pursued a relationship with his child, although this was made difficult by his residency in Virginia and conflict with defendant.
NO CUSTODIAL ENVIRONMENT CREATED
The evidence supported a reasonable inference the instability existing during the divorce proceedings precluded either party from establishing a custodial environment with their young child (who was born during the divorce proceedings) that, in at least a psychological sense, was marked by qualities of security, stability, and permanence.
INSTABILITY
The evidence the child was temporarily living with defendant in her daycare provider’s home at the time of trial could only add to the instability of the custodial situation. The evidence did not clearly preponderate against the trial court’s finding there was no established custodial environment with either party. Further, even if the trial court erred in finding an established custodial environment did not exist, the error was harmless.
PREPONDERANCE REALLY CLEAR AND CONVINCING
Notwithstanding the trial court’s statement it could apply a preponderance of the evidence standard, it explained its custody decision was actually supported by clear and convincing evidence. Thus, any error in the trial court’s determination an established custodial environment did not exist was harmless. The court also concluded defendant failed to establish the trial court’s custody decision was an abuse of discretion. Affirmed.
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Defendant MOTHER appeals as of right from a judgment of divorce. Relevant to this appeal,
defendant challenges the trial court’s decision to award plaintiff FATHERS sole legal custody and primary physical custody of the parties’ child, Sophia Casamatta (born June 23, 2005).
Defendant also challenges the trial court’s determination of child support and its decision to award plaintiff attorney fees of $3,000.
Because defendant has not established any basis for relief with respect
to the trial court’s: custody decision, denial of a new trial, decision not to apply MCL 722.31,
determination of child support, and award of attorney fees to plaintiff, we affirm.

On appeal, defendant primarily challenges the trial court’s custody decision.

THE COURT OF APPEALS STATED
In deciding custody disputes, a trial court must first determine whether an established
custodial environment exists. Jack v Jack, 239 Mich App 668, 670; 610 NW2d 231 (2000).

Brief, definite, and pertinent findings on contested matters are sufficient, MCR 2.517(A)(2), and
a court is not required to comment on every matter in evidence or every argument made by the
parties, Fletcher, supra at 883; Bowers v Bowers, 198 Mich App 320, 328; 497 NW2d 602
(1993).
CUSTODIAL ENVIRONMENT DID NOT EXIST
Here, while the trial court did not make findings on each criterion in MCL 722.27(1)©),
it stated the statutory criteria and facts material to its determination that an established custodial
environment did not exist.
WHAT IS A CUSTODIAL ENVIRONMENT
The custodial environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.
The age of the child, the
physical environment, and the inclination of the custodian and the child as to
permanency of the relationship shall also be considered. [MCL 722.27(1)©).]
CUSTODIAL ENVIRONMENT INCLUDES THE PSYCHOLOGICAL SENSE
Under this statute, an established custodial environment is one "in both the physical and
psychological sense in which the relationship between the custodian and the child is marked by
qualities of security, stability and permanence." Baker v Baker, 411 Mich 567, 579-580; 309
NW2d 532 (1981).
ITS HARD FOR AN OUT OF STATE PARENT
But there is evidence to support the trial court’s
finding that plaintiff actively pursued a relationship with his child, although this was made
difficult by his residency in Virginia and conflict with defendant.
INSTABILITY PRELUDES THE ESTABLISHMENT OF A CUSTODIAL ENVIRONMENT
The evidence supports a
reasonable inference that the instability that existed during the divorce proceedings precluded
either party from establishing a custodial environment with their young child that, in at least a
psychological sense, was marked by qualities of security, stability, and permanence. Baker,
supra at 579-580.
PARENT HAD CHILD LIVING WITH ANOTHER
The evidence that the child was temporarily living with defendant in her
daycare provider’s home at the time of trial could only add to the instability of the custodial
situation.
The evidence does not clearly preponderate against the trial court’s finding that there
was no established custodial environment with either party. Foskett, supra at 5.
Furthermore, even if the trial court erred in finding that an established custodial
environment did not exist, the error was harmless.
WHY IS CUSTODIAL ENVIRONMENT IMPORTANT?
The significance of an established custodial
environment is that it governs the standard of proof to be applied to decisions changing a child’s
custody. If an established custodial environment exists, a trial court must apply a clear and
convincing evidence standard, as opposed to a preponderance of the evidence standard, before
changing custody. Baker, supra at 579; see also MCL 722.27(1)©). Here, notwithstanding the
trial court’s statement that it could apply a preponderance of the evidence standard, it explained
that its custody decision was actually supported by clear and convincing evidence. Thus, any
error in the trial court’s determination that an established custodial environment did not exist was
harmless and remand for reevaluation of the custody decision is unnecessary. See Ireland v
Smith, 451 Mich 457, 468-469; 547 NW2d 686 (1996); Fletcher, supra, 447 Mich at 889.
A REVIEW OF APPLICATION OF THE BEST INTEREST FACTORS
With regard to the trial court’s actual custody decision, we review the trial court’s
findings of fact with respect to the best interest factors in MCL 722.23 under the great weight of
the evidence standard and its application of law for clear legal error. Foskett, supra at 4-5. The
court’s ultimate custody decision is reviewed for an abuse of discretion. Id. at 5. The court’s
resolution of the statutory best interest factors need not be given equal weight. McCain v
McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998). As this Court stated in Heid v
AAASulewski (After Remand), 209 Mich App 587, 594; 532 NW2d 205 (1995), "[t]he process of
reviewing these wrenching decisions is not, at bottom, a problem of quantitative analysis; our
duty is finally to analyze the quality of the evidence adduced to determine whether a party’s
burden of proof is met."

Defendant challenges the trial court’s findings with respect to best interest factors (b), ©),
(d), (e), (f), (g), (j), and (k) of MCL 722.23. To the extent that defendant argues that the trial
court failed to address particular matters in evidence, we point out that a court is not required to
comment on every matter in evidence or every argument raised by the parties. Fletcher, supra,
447 Mich at 883; Bowers, supra at 328. Additionally, to the extent that defendant relies on her
own testimony to establish error, the record reveals that the trial court found that defendant was not a credible witness, particularly with respect to the disputed issue concerning which party was
the aggressor of domestic violence in the home.
We give deference to the trial court’s resolution
of credibility issues. Fletcher, supra, 229 Mich App at 25; see also MCR 2.613©).
Additionally, there is no support in the record for defendant’s suggestion that the trial court was
biased against her.
A trial court is charged with the responsibility of determining the credibility
of witnesses, and judicial remarks that are critical, disapproving of, or hostile toward parties or
their cases ordinarily do not establish bias. Cain v Dep’t of Corrections, 451 Mich 470, 497 n
30; 548 NW2d 210 (1996). Defendant has not overcome the heavy presumption of judicial
impartially. Id. at 497.
FACTOR B
With respect to factor (b), "[t]he 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," MCL 722.23(b), we disagree with defendant’s claim that the
trial court’s evaluation of this factor is inconsistent with its evaluation of factor (a). Factor (b)
goes beyond existing emotional bonds by requiring the trial court to project a parent’s capacity
and disposition to provide love, affection, and guidance in the future. The trial court reasonably
looked beyond the parties’ past interactions with the child to project their capacity and
disposition to provide for the child’s needs. Its finding that factor (b) favored plaintiff is not
against the great weight of the evidence.
FACTOR C
With respect to factor ©), the evidence that plaintiff, unlike defendant, had a history of
stable employment and income supports the trial court’s finding that plaintiff had the superior
capacity and disposition to provide for the child’s material needs. Defendant has not established
that the trial court’s ruling on this factor is against the great weight of the evidence.
There is a degree of overlap between factors (d) and (e). Ireland, supra at 465.
FACTOR D
Factor(d) is the "length of time the child has lived in a stable, satisfactory environment, and the
desirability of maintaining continuity." MCL 722.23(d). This factor "calls for a factual inquiry
(how long has the child been in stable, satisfactory environment?) and then states a value (‘the
desirability of maintaining continuity’)." Ireland, supra at 465 n 8.
FACTOR E
Factor (e) is "[t]he
permanence, as a family unit, of the existing or proposed custodial home or homes." MCL
722.23(e). "Taken literally, factor e appears to direct an inquiry into the extent to which a
‘home’ will serve as a permanent ‘family unit.’" Id. at 465. The acceptability of the home is not
pertinent to this factor. Fletcher, supra, 447 Mich at 885. The focus of factor (e) is on the
child’s prospects for a stable family environment. Ireland, supra at 465.
The stability of a child’s home can be undermined in various ways. This
might include frequent moves to unfamiliar settings, a succession of persons
residing in the home, live-in romantic companions for the custodial parent, or
other potential disruptions. Of course, every situation needs to be examined
individually. [Id. at 465 n 9.]
With regard to the trial court’s finding that factor (d) did not favor either party, we agree
with defendant that the trial court did not comment on evidence that the child lived with her
during the 15 months preceding the trial. The focus of the court’s finding that the child was not
in a stable, satisfactory environment was on the first six months of the child’s life when plaintiff
was visiting her in the marital home.
The trial court arguably erred to the extent that it failed to
consider the child’s circumstances at the time of trial. It is clear from the court’s earlier findings,
however, that the court recognized that defendant had spent 15 months with the child. Further,
defendant’s own testimony indicated that the child’s environment had changed shortly before
trial, inasmuch as she and the child were temporarily staying in the daycare provider’s home, and
the trial court’s findings with respect to factor (e) clearly reflect the court’s awareness of
defendant’s plan to move to her father’s home in Ohio after the trial.

Considered as a whole, any error by the trial court in applying factor (d) was harmless in
light of the undisputed evidence that the child’s environment had changed shortly before trial and
would be changing again after the trial, regardless of which parent was awarded custody. It is
apparent that the court would have reached the same result regarding the instability of the child’s
environment, even if it considered her current circumstances in its evaluation of factor (d).
FACTOR E
With respect to factor (e), defendant’s claim that the trial court improperly reopened the
proofs when considering this factor is not properly before us because it lacks citation to
supporting authority. A party may not leave it to this Court to search for authority to sustain or
reject a position. Thompson v Thompson, 261 Mich App 353, 356; 683 NW2d 250 (2004);
Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). We note, however, that it
is not improper for a trial court to interrogate witnesses, even after both parties have rested.
People v Betts, 155 Mich App 478, 480-483; 400 NW2d 650 (1986); see also MRE 614(b);
People v Davis, 216 Mich App 47, 50-51; 549 NW2d 1 (1996). Therefore, to the extent that the
trial court attempted to elicit an assurance from plaintiff that he would rent or purchase a home if
the child was placed with him so that he could have control over the child’s physical
environment, we find no error.

Although it appears that the trial court went beyond the scope of factor (e) by considering
the acceptability of defendant’s proposal to stay in her father’s home and, in particular, the
evidence regarding his past domestic violence with defendant’s mother, the trial court also
expressed reservations about plaintiff’s situation. It did not find that either party had established
a proposed home that would serve as a permanent "family unit," but rather that plaintiff was
staying with a woman whom the court knew little about and that defendant’s stay in her father’s
home would be temporary. The distinction ultimately drawn by the trial court with regard to the
child’s prospects for a stable family environment under factor (e) arose from plaintiff’s superior
ability to control the child’s physical environment by taking financial responsibility for securing
a home. Overall, we are not persuaded that the trial court would not have reached a different
decision, even if it had not considered the acceptability of defendant’s proposed home when
evaluating factor (e). Therefore, any error in applying factor (e) was harmless. Ireland, supra at
468.
FACTOR F
Factor (f) is the "moral fitness of the parties involved." MCL 722.23(f). Like other
factors, the moral fitness must relate to parental fitness. Fletcher, supra, 447 Mich at 886-887.
The type of morally questionable conduct relevant to this factor includes "verbal abuse, drinking
problems, driving record, physical or sexual abuse of children, and other illegal or offensive
behaviors" Id. at 887 n 6. Contrary to defendant’s argument on appeal, the trial court
specifically addressed the moral fitness factor, weighing it in favor of plaintiff after commenting
on evidence regarding both parties. Because defendant has failed to recognize and address the
full basis of the trial court’s decision, we decline to consider this issue further. Roberts & Son
Contracting, Inc v North Oakland Dev Corp, 163 Mich App 109, 113; 413 NW2d 744 (1987).

FACTOR G
The trial court found that factor (g), the "mental and physical health of the parties
involved," MCL 722.23(g), highly favored plaintiff, because defendant’s past conduct
demonstrated problems with her emotional health. Therefore, we reject defendant’s claim that
the trial court’s concern was based on the psychological test results. Further, defendant has not
established that the trial court’s decision is against the great weight of the evidence.
FACTOR J
We also are not persuaded that the trial court’s findings that factor (j), which concerns
each party’s willingness and ability to foster a parent-child relationship with the other party,
favored plaintiff is against the great weight of the evidence.
FACTOR K
Further, the trial court’s decision to
weigh factor (k), domestic violence, in favor of plaintiff rested largely on its assessment of the
witnesses’ credibility. Overall, while domestic violence on the part of either party is not
excusable, giving appropriate deference to the trial court’s finding that defendant was the
aggressor and very confrontational during the marriage, it cannot be said that the trial court’s
finding that factor (k) favored plaintiff is against the great weight of the evidence.
REVIEW OF TRIAL COURT FACTOR ANALYSIS
In sum, even if we were to conclude that the trial court erred in its application of factors
(d) and (e), we would not reverse because we are satisfied that the trial court would have reached
the same decision that clear and convincing evidence existed to award custody of the child to
plaintiff. Further, defendant has not established that the trial court’s custody decision was an
abuse of discretion. Foskett, supra at 5.
CHANGE OF DOMICILE
Defendant’s next claim regarding the trial court’s failure to apply MCL 722.31(4) is not
properly before us because it was not presented to or decided by the trial court. Fast Air, Inc v
Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). Regardless, defendant has not
established that the trial court was required to apply MCL 722.31(4).
We review issues of statutory interpretation de novo as a question of law. Spires v
Bergman, 276 Mich App 432, 436; ___ NW2d ___ (2007), lv pending; Brown v Loveman, 260
Mich App 576, 582; 680 NW2d 432 (2004). MCL 722.31 was intended to codify, with some
modification, the common-law test previously applied by this Court to determine if a child’s
domicile should be changed. Spires, supra at 436. The statute provides, in part:
(1) A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as otherwise
provided in this section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location that is more than
100 miles from the child’s legal residence at the time of the commencement of the
action in which the order is issued.
(2) A parent's change of a child’s legal residence is not restricted by
subsection (1) if the other parent consents to, or if the court, after complying with
subsection (4), permits, the residence change. This section does not apply if the
order governing the child’s custody grants sole legal custody to 1 of the child’s
parents.
(3) This section does not apply if, at the time of the commencement of the
action in which the custody order is issued, the child’s 2 residences were more
than 100 miles apart. . . . [MCL 722.31.]
This statute applies in all cases in which one parent wishes to change the legal residence
of a child whose custody is governed by a court order. Spires, supra at 436. "[T]he Legislature
intended that a parent who shares joint legal or physical custody may petition the court to
relocate a minor." Brown, supra at 589. The statute does not apply if one parent is granted sole
legal custody in the order governing custody. MCL 722.31(2); Sehlke v VanDerMaas, 268 Mich
App 262, 265; 707 NW2d 603 (2005), rev’d in part on other grounds 474 Mich 1053 (2005).
Further, the statute does not apply if, "at the time of the commencement of the action in which
the custody order is issued, the child’s 2 residences were more than 100 miles apart." MCL
722.23(3). A separate inquiry is made utilizing the best-interest factors in MCL 722.23 if the
matter involves a change in custody. See Brown, supra at 585.

The first inquiry under MCL 722.31 is to determine if the child’s custody was governed
by an order and, if so, the terms of the order. Defendant does not identify any particular order
that she claims constitutes a custody order for purposes of MCL 722.31. Although the lower
court record contains several orders governing temporary parenting time, those orders are silent
with respect to legal custody issues.

The Child Custody Act, MCL 722.21 et seq., does not use "parenting time" and
"custody" synonymously. See MCL 722.27(1) (trial court in custody dispute may award custody
to one or more parties and grant reasonable parenting time); MCL 722.26a(7) ("joint custody"
defined as a relationship in which the "child shall reside alternatively for specific periods with
each of the parents" or parents share decision-making authority on important issues). Parenting
time is granted in accordance with the child’s best interests under MCL 722.27a. See Brown,
supra at 595.
"In construing a statute, the court should presume that every word has some meaning and
should avoid any construction that would render any part of a statute surplusage or nugatory."
Thompson, supra at 361 n 2. The primary goal of statutory construction is to ascertain and give
effect to the legislative intent. Id. at 361 n 2. Because MCL 722.31 plainly requires a child
subject to a custody order, and the record contains only parenting time orders, we conclude that
MCL 722.31 does not apply. Therefore, we reject defendant’s claim that the trial court was
required to render a change-of-domicile decision under MCL 722.31.



CALCULATION OF CHILD SUPPORT
Next, defendant argues that the trial court erroneously deviated from the formula
prescribed by the Michigan Child Support Formula (MCSF) when it imputed income to her
without explaining its deviation pursuant to MCL 552.605(2). A deviation will be found where a
trial court does not follow the MCSF when imputing income. Ghidotti v Barber, 459 Mich 189,
198-200; 586 NW2d 883 (1998). The standards for imputing income are set forth in 2004 MCSF
2.10. Stallworth v Stallworth, 275 Mich App 282, 285; 738 NW2d 264 (2007). Because
defendant does not argue that the trial court misapplied § 2.10, however, we find no basis for her
claim that the trial court was required to apply the deviation standards in MCL 552.605(2).
ATTORNEY FEES
Next, defendant argues that the trial court abused its discretion by awarding plaintiff
$3,000 in attorney fees. Attorney fees in a domestic relations case are governed by statute,
MCL 552.13, and court rule, MCR 3.206©). See Reed v Reed, 265 Mich App 131, 164; 693
NW2d 825 (2005). The trial court awarded plaintiff attorney fees of $3,000 because of
defendant’s violations of court orders pertaining to the marital home and possessions in that
home. Because defendant does not address the basis for the trial court’s decision to award
attorney fees, appellate relief is not warranted. Roberts & Son Contracting, Inc, supra at 113.
FEASIBILITY OF PARENTING TIME

Next, defendant argues that the parenting time awarded to her in the divorce judgment is
not feasible because plaintiff moved from Virginia to Florida after the judgment was entered. If
a parent believes that proper cause or change of circumstances merits a change in parenting time,
the parent may move for modification of parenting time in the trial court. MCL 722.27(1)©);
Brown, supra at 595; Terry v Affum (On Remand), 237 Mich App 522, 534-535; 603 NW2d 788
(1999). Indeed, the record reflects that defendant moved for a modification of parenting time
while this appeal was pending. The instant appeal does not involve any postjudgment order
modifying parenting time, but rather is an appeal as of right from the final divorce judgment.
See MCR 7.203(A)(1) and 7.202(6)(I). Our review is limited to the record presented to the trial
court. Amorello, supra at 330. Because defendant’s challenge to the parenting time schedule is
based on circumstances arising after the judgment, we conclude that it is not properly before us
and decline to address it..

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