Bennena Roe v. Sebastian Roe, 336452

Background

Parties divorced after separation; defendant is a U.S. Army soldier who was frequently deployed; children lived primarily with plaintiff since 2010, and plaintiff had sole physical custody under a 2012 order.
After defendant returned from deployment and remarried, he gained stability and parenting availability (stationed in Georgia since 2015) and began exercising summer parenting time.
In 2016 two children made unsubstantiated allegations of sexual abuse by another child living in plaintiff's home; plaintiff later removed the alleged abuser but had allowed other questionable adults (including a convicted sex offender grandfather) contact with the children.
Defendant moved to modify custody in September 2016, seeking physical custody; a hearing was held November 30, 2016, at which plaintiff (pro se) asked for an adjournment for counsel the day of the hearing and was denied.
Trial court found a change of circumstances (defendant now able to provide physical care and concerns about plaintiff’s custodial environment) and, after analyzing MCL 722.23 factors, awarded defendant physical custody and summer/holiday parenting time to plaintiff.
Plaintiff appealed, arguing the court erred in denying the adjournment, in finding a change of circumstances, and in awarding custody to defendant.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of adjournment	Roe lacked counsel and needed more time to hire an attorney; denial prejudiced her	Defendant had traveled from Georgia; plaintiff waited until hearing to request delay; no good cause shown	Court affirmed denial; trial court did not abuse discretion given plaintiff's lack of diligence and inconvenience to witnesses
Existence of change of circumstances to revisit custody	Defendant's changed availability was a "normal life change" and insufficient	Defendant's increased capacity to provide care plus problems in plaintiff's custodial environment were material and significant	Court held sufficient change of circumstances existed under MCL 722.27(1)(c)
Whether custody change was in children's best interests (clear and convincing)	Roe argued the evidence did not support finding by clear and convincing evidence that change favored defendant	Defendant relied on multiple MCL 722.23 factors (b,c,d,f,h) favoring him—stability, resources, concerns about plaintiff's responses to abuse allegations, marijuana use, school performance	Court affirmed: although factor (e) was misanalyzed, findings on other key factors were not against the great weight of the evidence and supported custody change
Trial court's handling of factor (e) and burden articulation	Roe asserted trial court erred by comparing homes under factor (e) and not stating defendant's burden	Court acknowledged error on factor (e) but deemed it harmless; court's comments showed clear-and-convincing standard was effectively applied	Affirmed: error on factor (e) harmless; burden implicitly satisfied by trial court's characterization of evidence

Key Cases Cited

Soumis v. Soumis, 218 Mich. App. 27 (1996) (standard and review for adjournment decisions)
Macomb County Dep't of Human Servs. v. Anderson, 304 Mich. App. 750 (2014) (abuse-of-discretion standard for adjournment rulings)
Tisbury v. Armstrong, 194 Mich. App. 19 (1991) (factors supporting denial of continuance: past continuances, lack of diligence, lack of injustice)
Vodvarka v. Grasmeyer, 259 Mich. App. 499 (2003) (definition and limits of "change of circumstances" under MCL 722.27)
McIntosh v. McIntosh, 282 Mich. App. 471 (2009) ("great weight of the evidence" standard for factual findings)
Fletcher v. Fletcher, 447 Mich. 871 (1994) (best-interest factors and scope of appellate review of custody findings)
Ireland v. Smith, 214 Mich. App. 235 (1995) (proper scope of MCL 722.23(e): permanence of family unit, not comparison of home acceptability)
Spires v. Bergman, 276 Mich. App. 432 (2007) (requirement that trial court consider and state findings on MCL 722.23 factors)