The trial court in this custody case did not make sufficient findings under each of the best-interest factors in MCL 722.23, the Michigan Court of Appeals has ruled, remanding the case so the trial judge could make “explicit” findings.

The defendant-father and the plaintiff-mother in Palik v Palik (Docket No. 361100) got divorced were divorced and had three children together. The defendant appealed the Ontonagon Circuit Court’s order awarding the plaintiff primary physical custody of the children. Specifically, he challenged: 1) the trial court’s finding that there was an established custodial environment (ECE) only with the plaintiff, 2) the trial court’s best-interest findings and 3) the trial court’s decision to impute income to him for child-support purposes.

The Court of Appeals affirmed the trial court’s ECE and income imputation rulings. However, the appellate panel vacated the trial court’s findings under the best-interest factors in MCL 722.23 and remanded the case for additional analysis.

“By not providing any rationale for its finding that factors a, b, c, e, f, g, and h ‘favor neither or both parents,’ the record is not sufficient for this Court to review the trial court’s findings,” the Court of Appeals said. “On remand, the trial court shall make explicit findings under each factor, and it shall explicitly state if any factor does not apply.”

Judges Christopher M. Murray, Colleen A. O’Brien and James Robert Redford were on the panel that issued the unpublished opinion.

Background

The plaintiff left the defendant and took the parties’ three children from the couple’s home in Ontonagon, Michigan, to live with her boyfriend in Minnesota. Initially, the plaintiff lived with the children in an RV on property owned by her boyfriend’s father. A short while later, she moved into an apartment with her boyfriend and the children. The defendant continued to live in the marital home in Ontonagon, Michigan.

At the time the plaintiff left the marital home, the defendant’s job required that he work in Wisconsin for eight days and then be off for six days. The initial parenting-time schedule took this into account and had the children residing with the plaintiff when the defendant was working and residing with the defendant when he was off. The children were homeschooled by the plaintiff.

The defendant later filed a motion for primary physical custody, for several reasons. First, he discovered that the children had significant educational deficiencies. Second, he had obtained a new job that permitted him to be in Ontonagon, Michigan all the time. This job came with a significant pay cut, however. While the defendant once earned about $70,000 a year, his pay at the new job was about one-half of that. In light of these developments, the defendant requested that 1) he be granted primary physical custody, 2) the children be sent to public school in Ontonagon and 3) his child support be decreased to a level commensurate with his new income.

The trial court ultimately 1) held that the plaintiff was the children’s primary custodian, 2) granted the defendant parenting time two weekends each month and 3) ordered the children attend school in Minnesota. The trial court further found that the defendant’s decision to leave his job and accept a reduction in income was unreasonable. As a result, the trial court imputed income to him at a level commensurate with his prior employment.

The defendant appealed.

Custody & Best-Interest Factors

In its decision, the Court of Appeals disagreed with the defendant’s argument that the trial court wrongly ruled there was an ECE only with plaintiff.

Citing the Child Custody Act, MCL 722.21, et seq., the Court of Appeals said the trial court ruled the children did not have an ECE with the defendant because, before the parties’ separation, he did not have a “large role” in the children’s lives and his enlarged role after the separation had not existed long enough for an ECE. “The trial court seemed to implicitly find that, during the time that defendant cared for the children by himself, the children looked to defendant for guidance, discipline, the necessities of life, and parental comfort. The court nevertheless found that there was no established custodial environment with defendant because the circumstances had not existed ‘over an appreciable time.’ ... Given the limited amount of time that the children were in defendant’s sole care, we cannot conclude that this finding was against the great weight of the evidence.”

The Court of Appeals also rejected the defendant’s argument that this case was similar to Bofysil v Bofysil, 332 Mich App 232 (2020), where the appeals court held the trial court’s finding that an ECE existed with only the stay-at-home parent was against the great weight of the evidence because the evidence was undisputed that the parent who worked outside the home “arranged her schedule to maximize her time home during [the child’s] waking hours” and was involved in raising the child during that time. “This case is dissimilar to Bofysil because the trial court here credited plaintiff’s testimony that defendant ‘did not really spend much time’ with the children while he was home - the court did not hold defendant’s working outside the home against him.”

Next, the Court of Appeals agreed with the defendant that the trial court erred by not making adequate best-interest findings under MCL 722.23. That statute says: “As used in this act, ‘best interests of the child’ means the sum total of the following factors to be considered, evaluated, and determined by the court:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.”

Here, the trial court found that factors a, b, c, e, f, g, and h favored “neither or both parents” but did not expand on this finding, the Court of Appeals observed. “That is, the court failed to identify which factors favored neither parent and which factors favored both. While it is permissible for a court to merely state on the record that a factor is irrelevant to its custody determination, … when it concludes that a factor is relevant, it must make a record ‘sufficient for this Court to determine whether the evidence clearly preponderates against the trial court’s findings .…’ By not providing any rationale for its finding that factors a, b, c, e, f, g, and h ‘favor neither or both parents,’ the record is not sufficient for this Court to review the trial court’s findings. Accordingly, we vacate the court’s custody determination and remand this case for additional fact-finding.”

Imputation Of Income

The Court of Appeals continued by rejecting the defendant’s claim that the trial court erroneously imputed income to him for child-support purposes.

Referring to the 2021 Michigan Child Support Formula Manual, the Court of Appeals said the defendant wrongly claimed the trial court failed to consider the presence of the children in his home and the impact this had on his earnings. “The trial court explicitly considered this factor …. Therefore, defendant’s argument that the trial court ‘clearly failed to consider this’ factor is without merit.”

The Court of Appeals further ruled the defendant erroneously argued that the trial court “unfairly punished him” for seeking a job that enabled him to be a more active parent. “This argument is not fully supported by the record because it is not clear that this new job enabled him to be a more active parent. … Defendant’s argument also distorts the trial court’s ruling, as it is clear that the court was not imputing income as a means of punishment for seeking a job that helped him be a more active parent. The court even acknowledged that the decision to seek different employment may have been reasonable, but it did not believe that the valid reasons for seeking new employment justified a 50% pay cut. Neither this conclusion nor the trial court’s ultimate decision to impute defendant’s previous income to defendant were outside the range of reasonable and principled outcomes.”

No New Judge

In closing, the Court of Appeals rejected the defendant’s request to remand the case to a different trial court judge because the previous judge was “not able to objectively weigh and consider the evidence” in the case.

“In other words,” the Court of Appeals observed, “defendant lost the first time around, and if and when the case goes back to circuit court, he wants a fresh start with a new judge, as the current one was found to have initially made some mistakes. This has become a more common request from parties over the past few years, and it seems this Court has more frequently granted these requests. But the law requires - and has always required - more than erroneous decisions for a judge to be removed from a case.”

According to the Court of Appeals, the law in this area is “well-settled” and says that parties are “not entitled to a new judge simply because the judge made some errors in ruling on legal or factual matters. Judges - both trial and appellate - make mistakes, but making mistakes on judicial rulings does not create bias or prejudice. Nor does the law engage in any presumption that a judge cannot set aside the erroneous legal or factual findings once the case is remanded back for further proceedings. Indeed, such a rule would fly in the face of the long-standing doctrine that judges are presumed impartial.”

The Court of Appeals concluded: “Michigan is blessed with many excellent trial judges who understand their judicial duty, and if a remand requires a reevaluation of evidence and new findings, we trust - and more importantly the law says - they can do so.”

Speaker Law Firm Reaction

Attorney Jordan M. Ahlers explained that the defendant in Palik brought the case to the Speaker Law Firm firm based on an emergency application from modification of a temporary order that had resulted in the children’s relocation out-of-state to the plaintiff’s residence - and occurred without an analysis of the best-interest factors.

“The Court of Appeals denied the application,” Ahlers said. “Two months after the Court of Appeals denied the application, the trial court entered the final judgment of divorce awarding the plaintiff primary physical custody, without making proper findings on seven of the MCL 722.23 best-interest factors.”

Ahlers expressed concern with the Court of Appeals decision, saying “it is just patently untrue for several reasons.”

First, the defendant’s request for a different trial judge on remand was based on the fact that this particular trial judge “had been reversed multiple times for the same issue in several different cases,” Ahlers explained. “However, when attempting to present that argument to the Court of Appeals, the panel shut-down counsel, refusing to hear about the trial judge’s other bad acts. The defendant is now pursuing a third appeal from the trial judge’s determination of child custody pursuant to the judgment of divorce because the trial judge failed to consider up-to-date evidence on remand, despite the clear mandate found in Fletcher [v Fletcher, 447 Mich 871 (1994)], and because the judge used the remand to vindictively change findings on best-interest factors such that they favor the plaintiff rather than both parties, after having not taken any new evidence.”

According to Ahlers, had the Court of Appeals remanded the case to a different trial judge, the defendant “might have been able to save himself the expense of pursuing yet another appeal from a judge who either does not know what the law says or simply does not know how to follow it.”

Ahlers also expressed her frustration with trial court errors. “Time and time again, trial court judges make severe mistakes that cost families their stability and their mental well-being. These mistakes have lasting consequences that simply cannot be fixed by an appeal. What an appeal can fix, however, is the likelihood of such mistakes continuing to happen in the same cases - and the cure for that is removing judges from cases where they have proven they cannot, or will not, follow the law. Judges will always protect other judges, as the Court of Appeals made clear. However, it is time for the judicial system to start protecting families from bad judges.”