Kate Lisa McCloud v. David Leon McCloudKate Lisa McCloud v. David Leon McCloud
PER CURIAM.
Defendant, David McCloud, appeals as of right the trial court order granting plaintiff, Kate McCloud, sole legal and primary physical custody of their minor child, OM. For the reasons stated in this opinion, we vacate the trial court‘s grant of sole legal and primary physical custody and remand for a new custody hearing.
I. BASIC FACTS
The parties married in December 2008. OM is their only child. In August 2021, Kate filed a complaint for divorce. Initially, the trial court entered a temporary custody and parenting time order indicating that, after participating in the Friend of the Court‘s alternative dispute resolution process, the parties had stipulated to joint legal and physical custody.
Subsequently, in November 2022, the court held a bench trial to resolve the issues of custody, support, and parenting time. At that time Kate requested that she receive primary physical custody and that David be awarded limited, supervised visitation. She testified that, at the time that she had stipulated to 50/50 custody and parenting time, the parties were still living together. They had since separated. She also testified that supervised parenting time was appropriate because David was an admitted “sex addict.” He had been arrested for soliciting a prostitute in Minnesota in 2014, and had pleaded guilty to a lesser charge. Additionally, he admitted to having at least 20 extramarital affairs and to attending sex addicts anonymous. At trial, David stated that he was a “sex addict,” and he described the nature of his addiction as being about finding partners online. He stated that he never had any “indication.. towards minors or children of any nature.”
David admitted to some of the incidents that could be corroborated by evidence beyond Kate‘s testimony. In particular, he conceded that he had put vinegar in her Gatorade bottle, bought a gun, shut off her debit cards, and called her a derogatory nickname. David stated that he did not purchase the gun to intimidate her. He also explained that he told Kate that he was smarter, stronger, and more capable than her. He stated that it was not “a mention of any of her capabilities.” Instead, it was “just simply the fact” that he believed in himself. David admitted to choking Kate in August 2018, but minimized his culpability. In his version of the incident, Kate annoyed him by waking him up at a time when he was not sleeping well and when he was working a very stressful job. He was groggy and went to push her out of the way, but “accidently got her by the throat” and choked her for a few seconds. He denied urinating on her towel, putting smelly substances on her bedsheets, redirecting her mail to steal a check, letting the air out from her tire, sabotaging the garage door, tampering with her brakes, and keeping the house keys from her.
Following the divorce trial, the court awarded Kate sole legal custody and primary physical custody of OM. This appeal follows.
II. CUSTODY
A. STANDARD OF REVIEW
In a 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.”
B. ANALYSIS
1. LEGAL CUSTODY
In Michigan, the Child Custody Act,
“[J]oint custody” means an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. [
MCL 722.26a(7) .]
When a court considers a request for joint custody, it
shall determine whether joint custody is in the best interest of the child by considering the following factors:
(a) The factors enumerated in [
MCL 722.23 ].(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child. [
MCL 722.26a(1) (emphasis added).]
“[T]he family court must consider all the factors delineated in
In order for joint custody to work, parents must be able to agree with each other on basic issues in child rearing—including health care, religion, education, day to day decision-making and discipline—and they must be willing to cooperate
with each other in joint decision-making. If two equally capable parents whose marriage relationship has irreconcilably broken down are unable to cooperate and to agree generally concerning important decisions affecting the welfare of their children, the court has no alternative but to determine which parent shall have sole custody of the children. [Bofysil v Bofysil, 332 Mich App 232, 249; 956 NW2d 544 (2020) (quotation marks and citation omitted).]
On appeal, David argues that the trial court “failed to make reviewable findings of fact on the majority of the best interest factors” because the court did not provide a factual explanation as to why it ruled as it did on each factor. However, the trial court found that factors (a), (b), (d), and (f) favored Kate, and factors (c), (g), (h), and (j) were equal as to both parties. The trial court was only required to explicitly state its findings; it was not required to discuss the testimony or provide a factual explanation. See Foskett, 247 Mich App at 12.
Nonetheless, the trial court committed clear legal error by failing to consider factors (e) and (l). Even if the court found that factors (e) and (l) were irrelevant, the court must at least state that conclusion on the record. See Pierron v Pierron, 486 Mich 81, 91; 782 NW2d 480 (2010). Because the trial court failed to consider custody issues in accordance with
David also argues that the trial court committed clear legal error because it failed to interview OM, who was of suitable age to express a preference.
On appeal, David suggests that the trial court was required to interview OM because he was ten years old and was presumptively able to express a reasonable preference.
Next, David argues that the trial court committed clear legal error to the extent that the trial court relied on his “infidelity” to determine his credibility. We disagree. A trial court cannot use infidelity to measure a parent‘s moral fitness under factors (d), (e), and (f), unless the infidelity interferes with the parent‘s ability to parent his or her child. See Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994) (holding that “[b]ecause of its limited probative value and the significant potential for prejudicially ascribing disproportionate weight to that fact, extramarital conduct, in and of itself, may not be relevant to factor f“); Bofysil, 332 Mich App at 247 (holding that it was improper for a court to consider a party‘s infidelity in analyzing factors (d) and (e)). However, the trial court did not find David‘s infidelity to be relevant to any particular factor. Rather, the court considered David‘s infidelity when evaluating David‘s overall credibility. It found that David was “untruthful because he admittedly committed adultery over 20 times during the course of the marriage.” Thereafter, the court found that David “committed at least one known act of sabotage and that was vinegar in his wife‘s water bottle at the cycle race.” The court found that his act was “particularly distasteful, deceitful, despicable, and on the order of an assault.” Further, the court found credible Kate‘s description of the choking incident in the bedroom. Thus, in context, it is clear that the finding of infidelity was related to David‘s credibility overall and was not the only basis for measuring David‘s moral fitness under factors (d) and (f). We give special deference to the trial court‘s credibility assessments. See Brown, 332 Mich App at 9. It was not clear legal error for the trial court to consider David‘s infidelity when assessing his credibility.
David also argues that there is no evidence that the trial court considered whether the parties had the ability to generally cooperate and agree prior to awarding Kate sole legal custody of OM. Because the record reflects that the trial court did not address this factor as required by
Lastly, David requests that we remand the case to a different judge. He argues that the trial judge in this case was clearly unable to objectively weigh and consider the evidence, as demonstrated by his expressed statements regarding David‘s credibility and conduct throughout the marriage. Yet, the trial court judge was responsible for assessing credibility as the finder of fact. And although the trial court failed to make a number of required findings in this case, the findings that it did make were not clearly erroneous. Moreover, erroneous rulings are not a basis for disqualification. See Kuebler v Kuebler, ___ Mich App ___; ___ NW2d ___ (2023) (Docket No. 362488); slip op at 31. Reassignment is not warranted.
The trial court committed clear legal error by failing to consider all of the factors delineated in
Vacated in part and remanded for further proceedings. We do not retain jurisdiction. David may tax costs as the prevailing party. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
/s/ James Robert Redford