A trial court erred by granting a father sole legal custody of the parties’ minor children, the Michigan Court of Appeals has ruled, because the evidence showed the parties were able to cooperate and make important decisions about the children.

In Muschegian v Esparza (Docket No. 353146), the Oakland County Circuit Court awarded the plaintiff-father primary physical custody and sole legal custody of the parties’ children. The trial court also established a parenting-time schedule and denied the defendant-mother’s request for attorney fees.

The defendant appealed. She argued, among other things, that the trial court abused its discretion by granting the plaintiff sole legal custody because the evidence demonstrated the parties were able to “peacefully” co-parent and “reach mutually agreeable decisions” regarding the children’s welfare.

The Court of Appeals agreed, vacating the trial court’s decision and remanding for reconsideration on the basis of “up-to-date information.”

“On the whole, the record indicates that plaintiff and defendant were generally able to cooperate and agree concerning important decisions, especially by the end of the trial,” the Court of Appeals said. “The trial court’s decision to grant plaintiff sole legal custody was therefore an abuse of discretion. As in Bofysil [v Bofysil, 332 Mich App 232 (2020)], we vacate the trial court’s award of sole legal custody to plaintiff and remand to that court for reconsideration of legal custody on the basis of up-to-date information.”

Judges Michael J. Riordan and Michael J. Kelly joined the per curiam opinion. Judge Douglas B. Shapiro concurred in part and dissented in part.

Background

Shortly after the parties began dating, the defendant moved in with the plaintiff, along with her two young children. Several months later, the defendant conceived twins, who were born in July 2017. The parties separated in 2018, after an “explosive argument.”

The plaintiff filed this custody action in Oakland County Circuit Court. The trial court heard evidence during a 14-day trial. The plaintiff retained a private investigator to surveil the defendant and report her activities during a majority of the proceedings. In addition, friends, nannies and babysitters testified about the parties’ relationship and parenting skills. According to the Court of Appeals opinion, “In general, plaintiff attempted to portray defendant as having a wild, chaotic, and potentially criminal lifestyle, while defendant cast plaintiff as a controlling, abusive, drug and alcohol user and a disinterested parent.”

The Oakland County trial court found that the majority of the statutory best-interest factors in MCL 722.23 favored the plaintiff and awarded the plaintiff primary physical custody and sole legal custody. The defendant was granted parenting time every other weekend and two hours on Wednesday evenings.

During the proceedings, the defendant testified that she was unemployed. Despite this, the trial court imputed a full-time minimum wage to her and held that the Michigan Child Support Formula required her to pay $101 a month in child support. However, the trial court ultimately deviated from this formula and set the defendant’s child-support obligation at $0 because she was unemployed and because the monthly payment “would not have a meaningful impact on the twins’ well-being in light of plaintiff’s substantial wealth and income.” The trial court also denied the defendant’s request for attorney fees, finding that she failed to present credible evidence that she could not afford the costs of litigation.

The defendant appealed.

Sole Legal Custody

The defendant asserted various arguments on appeal, including that the trial court erred by granting the plaintiff sole legal custody.

In analyzing this argument, the Court of Appeals explained that under MCL 722.26a(1), a trial court must determine whether joint legal custody is in the child’s best interest by considering the statutory best-interest factors and “[w]hether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.”

Also, 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,” the Court of Appeals observed. Only when it appears the parties are unable to communicate and cooperate regarding these important decisions, joint legal custody is inappropriate, the appeals court emphasized.

Here, the Oakland County trial court acknowledged that the parties’ ability to “civilly communicate” had improved, but also noted the parties had not always agreed about important decisions. “We agree that the trial court abused its discretion by granting plaintiff sole legal custody when the evidence demonstrated that the parties were generally able to cooperate and make important decisions about the twins together,” the Court of Appeals said.

In reaching this conclusion, the Court of Appeals relied on Bofysil. Like the parties in Bofysil, “there was evidence that the parties [in this case] formerly had great difficulty communicating with one another, with plaintiff in particular being rude and condescending to defendant. But as the trial court acknowledged, the parties’ communications had improved by the end of the trial, to the point that they could be cordial with one another when they discussed the twins. Plaintiff testified that he and defendant consulted with a specialist together regarding the twins’ need for medical helmets. Although plaintiff recalled that defendant was uncooperative and took the helmets off at times, there is no indication that she entirely opposed their use. Rather, she took them off sometimes to give the twins a break, and the flat areas on the twins’ heads had since been resolved.”

Notably, the parties were able to communicate with each another and jointly make decisions in the best interests of the twins, the Court of Appeals observed. “Plaintiff testified that his communications with defendant had improved ‘tremendously,’ and they no longer required plaintiff’s nanny to take the children to parenting-time exchanges. Plaintiff explained that they were more civil toward each other, they were setting aside their personal differences when they discussed the twins, and they agreed to keep court issues out of their personal conversations during exchanges.”

The trial court record included “ample examples” of how the parties worked together regarding important issues, the Court of Appeals explained. “On the whole, the record indicates that plaintiff and defendant were generally able to cooperate and agree concerning important decisions, especially by the end of the trial.”

Accordingly, the trial court’s decision to award the plaintiff sole legal custody was an abuse of discretion, the Court of Appeals held. “As in Bofysil, we vacate the trial court’s award of sole legal custody to plaintiff and remand to that court for reconsideration of legal custody on the basis of up-to-date information.”

Other Arguments Denied

The defendant further asserted the trial court erred by giving the plaintiff primary physical custody, while awarding her only limited parenting time.

“In sum, with the exception of factor (e), the trial court’s assessment of the best-interest factors was not against the great weight of the evidence,” the Court of Appeals wrote. “The trial court’s error concerning factor (e) was ultimately harmless because the vast majority of the remaining best-interest factors supported the trial court’s decision to grant plaintiff primary physical custody. Ultimately, the trial court engaged in a reasonable and detailed analysis of each relevant factor and did not abuse its discretion by granting plaintiff primary physical custody and granting defendant parenting time every other weekend and limited weekday parenting time.”

Therefore, “[w]e are not persuaded that the trial court abused its discretion in this regard,” the Court of Appeals held.

The Court of Appeals also rejected the defendant’s challenge to the denial of her request for attorney fees. “Defendant hindered plaintiff’s discovery regarding her income by asserting her Fifth Amendment privilege against self-incrimination during her deposition. Although she was willing to answer such questions at trial, she acknowledged several instances in which she lied about her income, including credit applications in 2016 and 2018. And whether by neglect or design, she filed tax returns that did not reflect her true income. She also failed to produce her 2018 tax return and testified that she could not recall how much income she claimed. Under these circumstances, the trial court did not clearly err by finding defendant’s testimony about her financial resources incredible.”