If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CHRISTINA MARIE PENNINGTON, also known FOR PUBLICATION
as CHRISTINA MARIE JACKSON, September 12, 2019
9:00 a.m.
Plaintiff-Appellant,
v No. 348090
Ionia Circuit Court
COREY ALAN PENNINGTON, LC No. 2015-031385-DM
Defendant-Appellee.
Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
GADOLA, P.J.
Plaintiff, Christina Marie Pennington, appeals as of right the trial court’s order granting
defendant, Corey Alan Pennington, sole physical custody of the parties’ minor child. We vacate
the trial court’s orders changing the child’s custody and reinstate the trial court’s prior custody
order.
I. FACTS
This case arises from defendant’s motions to change custody of the parties’ minor child.
Plaintiff and defendant were married in 2014, and their daughter was born in 2015. The parties
divorced in February 2016; the judgment of divorce granted the parties joint legal custody and
granted plaintiff primary physical custody of the child. Defendant was granted parenting time
with the child, but because the child was an infant, was still nursing, and had recently undergone
surgery for hip dysplasia, the trial court ordered that defendant’s parenting time be supervised.
The judgment of divorce also ordered defendant to complete parenting classes.
In April 2017, plaintiff moved to hold defendant in contempt, alleging that he had not
completed parenting classes and was being uncooperative during the supervised visits. In July
2017, the trial court ordered defendant to complete parenting classes and further ordered that
defendant’s visits with the child be supervised by the Friend of the Court. The trial court also
held defendant in contempt for failing to pay medical expenses related to the birth of the child.
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On January 2, 2018, the trial court entered an order reflecting an amended parenting time
schedule agreed to by the parties in which defendant was granted unsupervised parenting time
with the child every other weekend. After the order was entered, however, plaintiff allegedly
failed to bring the child to the exchange point for defendant’s parenting time. Defendant filed a
motion to show cause. At the hearing on the motion, plaintiff informed the trial court that she
was concerned regarding defendant’s care of the child. The trial court ordered plaintiff to
comply with the parenting time order or be held in contempt, and further ordered that if plaintiff
were held in contempt for failing to comply with the order she would be required to serve one
day in jail for every day defendant was deprived of parenting time.
On or about January 29, 2018, plaintiff took the child to her pediatrician, fearful that the
child had been physically and/or sexually abused. Plaintiff later testified that the child had
vaginal redness and irritation, and had stated “daddy hurt me.” The pediatrician reported the
information to Child Protective Services (CPS); CPS and law enforcement jointly arranged for a
child sexual abuse medical examination of the child.
On March 2, 2018, defendant moved for a change of custody, requesting sole physical
custody of the child. Defendant alleged that circumstances had changed because plaintiff was
unwilling to support a relationship between him and the child, causing him concern regarding
plaintiff’s mental health. At the hearing on the motion before the trial court referee, a CPS
investigator testified that the allegations of abuse had not been substantiated. She further
testified that she became concerned about plaintiff’s emotional stability and mental health when
plaintiff refused to accept that the allegations of abuse were not substantiated by evidence. The
CPS investigator further testified that in her opinion “unnecessary medical treatment was found
to have been going on.” However, no medical expert was called to testify regarding either the
results of the child’s medical examination, plaintiff’s mental health, or whether the medical
treatment sought was unnecessary.1
In response to the testimony of the CPS investigator, plaintiff testified that her past
concerns regarding the child’s health related to the child’s previous surgery for hip dysplasia and
weight loss that the child experienced when recuperating from the surgery. She also testified that
the child had certain food allergies that caused her to consult her pediatrician and an allergist.
Plaintiff confirmed that she had taken the child for an examination by the child’s pediatrician
when the child reported that defendant had hurt her, but testified that she had not contacted CPS
with allegations against defendant; rather, the child’s pediatrician had reported to CPS. Plaintiff
also testified that the child had been seeing a therapist every week for the two months preceding
the hearing because the child had been having some problematic behavior. Plaintiff testified that
she also sees a therapist and that she takes medication for anxiety because she had experienced
anxiety at work and sometimes had trouble falling asleep.
At the conclusion of the hearing, the trial court referee stated on the record that the
testimony of the CPS investigator together with the medical report supported the finding that
1
The trial court referee apparently was provided with a medical report regarding the child’s
examination. The report has not been made part of the trial court record, however.
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there had been a change of circumstances since the last custody order. The referee also found on
the record that the established custodial environment at that time was primarily with plaintiff,
and that defendant’s motion requested a modification of the established custodial environment,
such that the “higher” burden of proof applied. The referee recommended that plaintiff undergo
a psychological evaluation and that the parties temporarily have joint physical custody, with
plaintiff having custody Monday through Friday, and defendant having custody every weekend,
and also summer parenting time. The referee further stated that permanent custody would be
evaluated after plaintiff underwent the psychological evaluation.
By order entered March 27, 2018, the trial court adopted the recommendation of the
referee as an interim order. The order stated that sufficient evidence had been introduced to
prove proper cause and a change of circumstances. The order also stated that an established
custodial environment for the child existed primarily with plaintiff, “and to a lesser extent with
father at this time.” The order indicated that it was a temporary order until plaintiff underwent a
psychological evaluation, and pending review and recommendation by the Friend of the Court.
On July 18, 2018, defendant filed a motion to show cause, alleging that plaintiff refused
to agree to schedule his summer parenting time in accordance with the March 2018 order. A
hearing was held August 14, 2018, before the trial court referee on the motion to show cause, at
the conclusion of which the referee found plaintiff to be in contempt of court for failing to permit
defendant to exercise his parenting time with the child as ordered in the March 2018 order. The
referee recommended that plaintiff be ordered to serve 30 days in jail; the trial court adopted the
recommendation of the referee.
Meanwhile, also on August 14, 2018, defendant filed another motion seeking to change
custody and again requesting that the trial court award him physical custody of the child. At the
hearing held before the trial court’s referee, defendant testified that he was requesting primary
physical custody of the child, with plaintiff having alternate weekends for parenting time, and
asking that plaintiff be ordered to pay child support if he were awarded custody. He admitted
that he was delinquent in paying the ordered child support in the approximate amount of $2,200.
At the hearing on defendant’s second motion to change custody, the child’s therapist
testified that during several counseling sessions with the child, the child exhibited inappropriate
boundaries during play; specifically, the child repeatedly took the clothes off the male doll and
put it on a couch or a bed to “snuggle.” The therapist testified that this expressed an
inappropriate boundary between a small child and an adult male, though not necessarily
defendant. The therapist recommended that both parents undergo psychological evaluation for
the purposes of comparing the mental health of both parties before any change in custody
occurred. Plaintiff testified that she completed the psychological evaluation, which showed that
she suffered from anxiety and depression. Plaintiff opined that those issues were being
adequately controlled by her medication.
After the hearing, the referee recommended that defendant be awarded physical custody
of the child, and plaintiff be permitted parenting time on alternate weekends. The trial court
adopted the recommendation of the referee, finding that an established custodial environment
existed with both parties, and that defendant had proven by a preponderance of the evidence that
a custody change was in the best interests of the child. The trial court considered the best-
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interest factors set forth in the Child Custody Act and found that all factors either favored
defendant or were equal with respect to both parties.
Plaintiff filed objections to the referee’s recommendations and requested de novo review
by the trial court. At the conclusion of the de novo hearing, the trial court entered an order
affirming the award of physical custody to defendant. Plaintiff now appeals.
II. DISCUSSION
A. STANDARD OF REVIEW
In a child custody dispute, “all orders and judgments of the circuit court shall be affirmed
on appeal 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.
Specifically, we review the trial court’s determination whether a party 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). A finding of fact is against the great
weight of the evidence if the evidence clearly preponderates in the opposite direction. McIntosh
v McIntosh, 282 Mich App 471, 474; 768 NW2d 325 (2009). In addition, “[a] trial court’s
findings regarding the existence of an established custodial environment and regarding each
custody factor should be affirmed unless the evidence clearly preponderates in the opposite
direction. An abuse of discretion standard applies to the trial court’s discretionary rulings such
as custody decisions. Questions of law are reviewed for clear legal error. A trial court commits
clear legal error when it incorrectly chooses, interprets, or applies the law.” Id. (quotation marks
and citations omitted).
B. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES
Plaintiff first contends that the trial court erred in making a threshold finding of proper
cause or a change of circumstances when considering defendant’s March 2018 motion to change
custody, and erred again by failing to make a threshold finding of proper cause or change of
circumstances when considering defendant’s August 2018 motion to change custody. We agree
with both contentions.
“The purposes of the Child Custody Act, MCL 722.21, et seq., are to promote the best
interests of the child and to provide a stable environment for children that is free of unwarranted
custody changes.” Lieberman v Orr, 319 Mich App 68, 78; 900 NW2d 130 (2017) (quotation
marks and citation omitted). The Child Custody Act authorizes a trial court to award custody
and parenting time arising out of a child custody dispute, and also imposes a gatekeeping
function on the trial court to ensure the child’s stability. Id. Under § 27 of the Act, MCL
722.27, a trial court may modify or amend a previous child custody order or judgment “for
proper cause shown or because of change of circumstances” if doing so is in the child’s best
interest. Bowling v McCarrick, 318 Mich App 568, 569; 899 NW2d 808 (2017).
Thus, a party seeking to modify an existing child custody order must first establish proper
cause or a change of circumstances before the trial court may reopen the custody matter and hold
a hearing to assess whether the proposed modification is in the child’s best interests. Id. at 570,
citing Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847 (2004). The purpose of
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the threshold showing of either proper cause or a change of circumstances “is to minimize
unwarranted and disruptive changes of custody orders, except under the most compelling
circumstances.” Lieberman, 319 Mich App at 83, quoting Corporan, 282 Mich App at 603. If
the party seeking to change custody does not prove by a preponderance of the evidence either
proper cause or a change of circumstances, the trial court is not authorized by the Child Custody
Act to revisit an existing custody decision and engage in a reconsideration of the statutory best-
interest factors. Lieberman, 319 Mich App at 82.
“Proper cause” sufficient to revisit a custody order requires the party seeking the custody
change to prove by a preponderance of the evidence the existence of an appropriate ground; the
ground must be relevant to at least one of the twelve statutory best-interest factors, and must be
of such magnitude that it has a significant effect on the well-being of the child. Corporan, 282
Mich App at 604. To demonstrate a “change of circumstances,” the party seeking to change
custody must prove that after the entry of the last custody order, the conditions surrounding the
child’s custody which have or could have a significant effect on the child’s well-being have
materially changed, and the change has had, or will almost certainly have, an effect on the child.
This determination is to be made based on the facts of each case that are relevant to the statutory
best-interest factors. Id. at 604-605.
In Vodvarka, this Court noted that minor allegations of contempt and complaints
regarding visitation are not sufficient to establish proper cause or a change of circumstances
sufficient to warrant the trial court revisiting the child custody best-interest factors. Vodvarka,
259 Mich App at 510. However, proper cause may be demonstrated when the parties’
disagreements escalate to topics significant to the well-being of the child, such as the child’s
education or medical treatment. See Dailey v Kloenhamer, 291 Mich App 660, 666; 811 NW2d
501 (2011); see also McRoberts v Ferguson, 322 Mich App 125, 132; 910 NW2d 721 (2017)
(concluding that the visitation complaints and allegations of contempt were not minor when one
party was compelled to fly needlessly across the country because the other party failed to
produce the child.)
In addressing defendant’s March 2018 motion to change custody, the trial court
determined that defendant had proven by a preponderance of the evidence proper cause and a
change of circumstances. Defendant alleged that there was a change of circumstances because
plaintiff’s actions in not supporting a relationship between defendant and the child presented
“concern for her mental status.” Defendant, however, offered no evidence that plaintiff was
mentally ill; the only evidence offered purportedly demonstrating plaintiff’s “mental illness,”
apart from defendant’s opinion, was the testimony of the CPS investigator that in her opinion,
plaintiff was slow to accept that the physicians examining the child had not substantiated any
abuse. The CPS investigator also testified that, in her opinion, although plaintiff appeared
sincerely concerned for the child, she was seeking too much medical care for the child. The CPS
investigator, however, is not a doctor and did not testify that she had any medical expertise.
Defendant, in fact, offered no medical evidence to support his theory that plaintiff was mentally
ill and no medical evidence to demonstrate that too much medical care had been sought for the
child.
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Defendant has simply not articulated how plaintiff’s conduct went beyond an appropriate
level of concern for a report of potential abuse.2 Plaintiff testified that the child told her that
defendant had hurt her, and she observed that the child’s vagina was red and irritated. She
therefore sought the advice of her pediatrician. The child’s pediatrician notified CPS, setting in
motion the process by which CPS and law enforcement arranged for another medical
examination of the child. According to the CPS worker, the medical examinations resulted in a
conclusion that abuse had not been substantiated. While it may be the case that the entire event
was a false alarm, a parent who exhibits ongoing concern after learning that abuse is “not
substantiated” is not necessarily mentally ill or emotionally unstable.3
Nonetheless, based upon this evidence, the trial court concluded that a change in
circumstances had been demonstrated because plaintiff was suffering from “some mental health
issues that was [sic] subjecting the child to unnecessary, unpleasant evaluations” and was, at
times, “acting in an irrational manner, which had an effect on the child.” This created “a concern
that the child was being traumatized overall by the mother’s actions.” These findings lack any
valid support in the record.4 In fact, there was virtually no evidence regarding the effect, if any,
that the medical examinations had on the child, other than the CPS investigator’s speculation.
When asked how a particular test affected the child, the CPS investigator testified “I am not
entirely sure how it affected [the child] specifically, but I have seen the procedure done on other
children as well as adults, and it’s uncomfortable. I would imagine [the child] did not handle it
well, as she did not handle the evaluation of the Child Protection Team either.” Upon further
examination, the CPS investigator admitted that she had not actually been present during the
evaluation, but testified that she had been on the phone with the evaluator and had heard crying
in the background.
In sum, a review of the record indicates that plaintiff, rightly or wrongly, suspected abuse
of the child and took the child to her pediatrician, which set in motion the process involving CPS
and law enforcement. Defendant, upon learning that plaintiff had set in motion this process,
brought a motion to change custody, alleging that plaintiff had mental health problems. No
medical evidence of plaintiff’s mental health was presented; the trial court heard only the opinion
testimony of the CPS investigator that plaintiff’s level of concern was irrational. On this record,
the trial court’s conclusion in its March 2018 order that a change of circumstances and proper
cause had been proven by a preponderance of the evidence was against the great weight of the
evidence.5
2
Indeed, more concerning would be a parent who does not seriously consider a child’s report of
potential abuse.
3
We note that a finding that abuse has not been substantiated is not equivalent to a finding that
no abuse occurred.
4
As noted above, a medical report was apparently provided to the trial court referee, but because
the report was not entered into the record, we cannot consider it on appeal.
5
We note that, generally, an issue must be raised before and considered by the trial court to be
preserved for appellate review. See Elahham v Al-Jabban, 319 Mich App 112, 119; 899 NW2d
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In August 2018, defendant again moved for a change of custody. After a hearing, the
trial court referee recommended a change of custody, awarding defendant primary physical
custody of the child, and the trial court adopted the referee’s recommendation. The trial court
stated in its order that it previously had found that there was sufficient evidence to meet the
threshold determination of proper cause or change of circumstances. Plaintiff sought de novo
review in the trial court, arguing in part that defendant failed to established proper cause or
change of circumstances. The trial court affirmed the change of custody. On appeal, plaintiff
contends that the trial court erred by failing to make the threshold finding when considering
defendant’s new motion for change of custody. We agree.
As discussed, the trial court was precluded from considering whether a custody change
was in the best interest of the child without first reaching the threshold question whether proper
cause or a change of circumstances had been proven by a preponderance of the evidence. The
trial court entered a custody and parenting time order in March 2018. Therefore, in addressing
defendant’s August 2018 second motion to change custody, the trial court was obligated to
determine whether defendant had demonstrated proper cause or a change of circumstances since
entry of the March 2018 order. In the alternative, because the trial court described its March
2018 order as “interim,” it might be arguable that the August 2018 motion was a continuation of
the proceedings from March 2018. Nevertheless, the trial court’s March 2018 determination
regarding proper cause or change of circumstances was erroneous. Therefore, that determination
could not be relied upon in September 2018. In either event, the trial court erred by reaching the
issue of the best interest of the child without first determining whether proper cause or change of
circumstances had been established.
The paramount purpose of the Child Custody Act is “providing a stable environment for
children that is free of unwarranted custody changes.” Shade v Wright, 291 Mich App 17, 28;
805 NW2d 1 (2010). In keeping with that objective, the purpose of the proper cause or change
of circumstances requirement is “to erect a barrier against removal of a child from an established
custodial environment” and “to minimize unwarranted and disruptive changes of custody
orders,” except under the most compelling circumstances. Id. In this case, the trial court’s
finding that defendant had demonstrated proper cause or a change of circumstances in his March
2018 motion is against the great weight of the evidence, and the trial court failed to make a
threshold finding on defendant’s new motion for change of custody in August 2018. The trial
court therefore erred by reaching the issue of the best interest of the child without first properly
determining whether proper cause or change of circumstances had been established. See
Corporan, 282 Mich App at 606.
768 (2017). Plaintiff objected to the September 2018 custody order, but she did not object to the
March 2018 custody order. However, regardless of preservation, we may review an unpreserved
issue when, as here, consideration of an issue is necessary to the proper determination of the
case, or when the issue presents a question of law for which the facts necessary for its resolution
are sufficiently present to permit this Court’s review. Smith v Foerster-Bolser Constr, Inc, 269
Mich App 424, 427; 711 NW2d 421 (2006).
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C. ESTABLISHED CUSTODIAL ENVIRONMENT
Plaintiff next contends that the trial court erred when it found that an established
custodial environment existed with defendant. Initially, we note that the trial court should not
have reached this issue because defendant had not proven proper cause or a change of
circumstances by a preponderance of the evidence. However, we also conclude that the trial
court erred when it found the child to have an established custodial environment with defendant
as well as with plaintiff.
A child’s established custodial environment is the environment in which “over an
appreciable time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c); Pierron v Pierron,
486 Mich 81, 85-86; 782 NW2d 480 (2010). When modification of a custody order changes to
whom the child looks for guidance, discipline, the necessities of life, and parental comfort and
support, the movant must demonstrate by clear and convincing evidence that the change is in the
child’s best interests. MCL 722.27(1)(c); Pierron, 486 Mich at 85, 92. Whether an established
custodial environment exists is a question of fact. Foskett v Foskett, 247 Mich App 1, 8; 634
NW2d 363 (2001). We will affirm a trial court’s finding regarding the existence of an
established custodial environment unless the evidence clearly preponderates in the opposite
direction. Pierron, 486 Mich at 85.
It is possible for a custodial environment to be established in more than one home.
Rittershaus v Rittershaus, 273 Mich App 462, 471; 730 NW2d 262 (2007). In this case,
however, the record does not support a finding of an established custodial environment with
defendant. At the time of the March 2018 motion for change of custody, the custody order that
was in effect was the January 2018 stipulated order, in which plaintiff had primary physical
custody of the child and defendant had parenting time on alternating weekends from Saturday at
9 a.m. to Sunday at 6 p.m. After defendant moved for a change of custody in March 2018, the
trial court found that an established custodial environment existed primarily with plaintiff and to
a lesser extent with defendant. The trial court ordered that “the parties shall share temporary
joint physical custody” of the child, and that defendant would have parenting time “every
weekend from Saturday at 10 a.m. to Sunday at 7 p.m,” and also “five non-consecutive full
weeks of parenting time each summer.”
In August 2018, defendant again moved for a change of custody. Ruling on the motion in
its September 2018 order, the trial court stated, in relevant part:
The court finds that there are established custodial environments with both
parents now. Defendant has been consistently exercising parenting time. [The
child] looks to each parent for guidance, discipline, the necessities of life, and
parental comfort during respective time with them. . . . Defendant does not seek to
destroy the established custodial environment with plaintiff so the burden of proof
is a preponderance of the evidence that a change is in the child’s best interests.
A review of the record, however, does not support these findings. At the time of the
September 2018 hearing on defendant’s motion for change of custody, the child was
approximately three and a half years old, and had lived almost exclusively with plaintiff for her
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entire life. From the time the parties divorced in February 2016 until January 2018, defendant
had minimal, supervised parenting time with the child. In January 2018, defendant’s parenting
time increased to one overnight visit every other week. In March 2018, his parenting time
increased to one overnight visit every week.6 Defendant’s August 2018 motion seeking primary
physical custody of the child most certainly sought to “destroy the established custodial
environment with plaintiff.”
The record also does not support the finding that over an appreciable time, the child
looked to defendant for guidance, discipline, the necessities of life, and parental comfort and
support. At the hearing, defendant testified that parenting was going “wonderful.” When asked
whether the child appeared to feel comfortable in his home and whether her needs were met
there, he testified “yes.” He testified that he was aware that the child had food allergies, but that
he was not sure about which foods, and also that he was aware that the child had ongoing issues
related to hip dysplasia. He also testified that he did not know the name of the child’s
pediatrician, but knew the name of the pediatrician’s practice group. There was virtually no
evidence that, over an appreciable time, the child had looked to defendant in that environment
for guidance, discipline, the necessities of life, and parental comfort. Although it is possible for
a child to have an established custodial environment with both parents, see Rittershaus, 273
Mich App at 471, in this case, the trial court’s finding that the child had an established custodial
environment with defendant was almost entirely without support, and therefore was against the
great weight of the evidence. The trial court therefore was precluded from changing the child’s
custody unless defendant presented clear and convincing evidence that the change was in the best
interests of the child. Foskett, 247 Mich App at 6. The trial court thus erred in changing custody
upon a finding that the change was supported by only a preponderance of the evidence. See
MCL 722.27; Pierron, 486 Mich at 86.
We vacate the custody orders of the trial court entered September 19, 2018 and February
28, 2019; we reinstate the trial court’s Custody and Parenting-time order entered March 27,
2018; and we remand the matter to the trial court for further proceedings as it deems proper. On
remand, the trial court “should consider up-to-date information,” including any further evidence
pertaining to the possibility of the child being abused while in defendant’s care. Fletcher v
Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994). We do not retain jurisdiction.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
6
Additional parenting time was scheduled for the summer of 2018, but did not occur allegedly
because plaintiff would not cooperate.
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