364877
Mich. Ct. App.Jul 20, 2023Background
- Parties married in 2008 and have one child (OM); Kate filed for divorce in August 2021.
- Parties initially stipulated (temporarily) to joint legal and physical custody after Friend of the Court ADR.
- At the November 2022 bench trial Kate sought primary physical custody and limited/supervised visitation for David, alleging domestic abuse, repeated manipulative/sabotaging acts, and safety concerns.
- David admitted a history of online infidelity/sex addiction, a 2014 solicitation-related conviction, and to some misconduct (e.g., putting vinegar in Kate’s drink, buying a gun, deactivating debit cards); he denied or minimized many abuse allegations but admitted choking Kate in 2018.
- Trial court awarded Kate sole legal custody and primary physical custody; David appealed arguing among other things that the court failed to follow statutory custody procedures and omitted required findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court considered all MCL 722.23 best‑interest factors | Kate urged award of sole legal and primary physical custody based on abuse, sabotage, and credibility of David | David argued court failed to make reviewable findings on many MCL 722.23 factors | Court vacated custody award and remanded because it failed to consider and make findings on all required MCL 722.23 factors |
| Whether court considered child’s reasonable preference (MCL 722.23(i)) | Kate opposed considering an interview/preference in this record | David argued court failed to determine whether OM (age ~10) could express a reasonable preference and improperly declined to consider it | Court held trial court erred by not determining whether OM had a reasonable preference; remand required (interview optional) |
| Whether court considered parents’ ability to cooperate re: joint custody (MCL 722.26a(1)(b)) | Kate contended joint custody was inappropriate given conflict and safety concerns | David argued the court did not make findings on whether parents could cooperate on major child‑rearing decisions | Court vacated sole legal custody order and remanded for explicit findings under MCL 722.26a(1)(b) |
| Whether court improperly used David’s infidelity against him and whether reassignment of judge was warranted | Kate relied on credibility findings including admissions of adultery and misconduct | David argued infidelity was irrelevant and judge showed bias warranting reassignment | Court held appellate precedent permits considering infidelity for credibility (not as sole moral‑fitness metric); reassignment not warranted; credibility findings afforded deference |
Key Cases Cited
- Merecki v. Merecki, 336 Mich App 639 (court’s standards of review in custody appeals)
- Brown v. Brown, 332 Mich App 1 (deference to trial court credibility assessments)
- McRoberts v. Ferguson, 322 Mich App 125 (trial court must state findings on all MCL 722.23 factors)
- Foskett v. Foskett, 247 Mich App 1 (brief, definite findings suffice)
- Pierron v. Pierron, 486 Mich 81 (court must state consideration or irrelevance of specific factors)
- Kubicki v. Sharpe, 306 Mich App 525 (trial court must consider child’s preference regardless of parties’ wishes)
- Maier v. Maier, 311 Mich App 218 (methods for ascertaining child’s reasonable preference; interview not always required)
- Fletcher v. Fletcher, 447 Mich 871 (limits on using extramarital conduct in best‑interest analysis)
- Bofysil v. Bofysil, 332 Mich App 232 (joint custody requires parents’ ability to cooperate)