20231130_C366008_50_366008.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JACOB BRANHAM, UNPUBLISHED
November 30, 2023
Plaintiff-Appellee,
v Nos. 366008; 366798
Wayne Circuit Court
JANET BRANHAM, Family Division
LC No. 19-112577-DM
Defendant-Appellant.
Before: O’BRIEN, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
These appeals stem from the parties’ dispute regarding custody of their child, NB. In
Docket No. 366008, defendant appeals as of right an opinion and order granting plaintiff’s motion
to change NB’s domicile, custody, and parenting time. In Docket No. 366798, defendant appeals
by delayed leave granted1 the trial court’s sua sponte amendment of its first opinion and order. We
vacate both orders and remand for further proceedings consistent with this opinion.
I. BACKGROUND
On October 7, 2019, defendant filed a police report alleging that plaintiff pointed a laser-
sighted gun at her and NB a week earlier. On the basis of defendant’s allegations, plaintiff was
charged with two counts of felonious assault and two counts of felony-firearm. The day after
reporting this incident, defendant secretly moved with 20-month-old NB to Huntington, Indiana,
to take up residence with her parents. Plaintiff, who remained in the marital home in Allen Park,
Michigan, filed a complaint for divorce shortly thereafter. The first orders concerning interim
custody and parenting time were entered by stipulation in February 2020. The parties were granted
joint legal custody, with temporary physical custody awarded to defendant. Plaintiff was granted
supervised parenting time once a week at Growth Works. The emergence of the COVID-19
1
Branham v Branham, unpublished order of the Court of Appeals, entered July 19, 2023 (Docket
No. 366798). The order granting leave also consolidated defendant’s appeals on this Court’s own
motion. Id.
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pandemic in March 2020 posed a serious impediment to the intended parenting time, prompting
plaintiff to move to modify the parenting-time schedule, but the parties reached a settlement before
the motion was heard.
The trial court entered a consent judgment of divorce in November 2020, under which the
parties shared joint legal custody, defendant retained primary physical custody, and plaintiff was
awarded supervised parenting time. The judgment ordered plaintiff to continue parenting time at
Growth Works until the earlier of six additional completed sessions or December 31, 2020; Zoom
visits on weeks without in-person parenting time; and parenting time outside of Growth Works on
the Saturdays following the Growth Works sessions, to be supervised by certain relatives or
another mutually agreeable third party. Beginning January 1, 2021, plaintiff was entitled to
supervised parenting time every other weekend from noon to 8:00 p.m. on Saturday and 10:00 a.m.
to 2:00 p.m. on Sunday. On the weekends without parenting time, plaintiff was entitled to video
conference with NB. All parenting-time exchanges were to occur at the Allen Park Police
Department until the parties agreed or the court ordered otherwise. The consent judgment also
provided that NB’s “domicile shall be changed from Michigan to Indiana,” subject to the
understanding that resolution of plaintiff’s criminal case would constitute proper cause and a
change of circumstances sufficient to allow either party to move for modification of domicile,
custody, and parenting time.
On January 11, 2022, Wayne Circuit Court Judge Regina Thomas found plaintiff not guilty
of the criminal charges. In announcing her ruling, Judge Thomas found that defendant was not
credible. Relying on the favorable outcome in the criminal case, plaintiff quickly moved to change
NB’s domicile, custody, and parenting time as permitted by the consent judgment. Plaintiff’s
motion was first heard by a Friend of the Court referee, who recommended that plaintiff’s
parenting time no longer be supervised, that plaintiff be given incremental increases in parenting
time pending a hearing before the trial court, and that defendant continue to provide transportation
for parenting time. The trial court entered the referee’s recommendation as an interim order in
June 2022. Following a review hearing in August 2022, the trial court ordered that plaintiff’s
temporary parenting-time schedule be expanded to every other weekend, from Saturday at noon
until Sunday at 3:00 p.m.—the first overnight parenting time plaintiff had been afforded since the
case began.
A two-day evidentiary hearing on plaintiff’s motion was held in January 2023 and March
2023. In an oral ruling on March 21, 2023, the trial court considered the statutory factors in MCL
722.31(4) and MCL 722.23, concluded that plaintiff had met his burden of proof, and outlined a
new parenting-time schedule. It later memorialized its decision in a written opinion and order
entered April 26, 2023, containing the following language:
IT IS HEREBY ORDERED that the parties shall have joint legal and
physical custody of the minor child, with the Plaintiff having physical custody and
the minor child’s primary residence relocating to Michigan no later than July 1,
2023.
IT IS FURTHER ORDERED that on or before August 1, 2023, the parties
shall agree to a Michigan school for the minor child for the 2023-2024 academic
school year.
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IT IS FURTHER ORDERED that prior to July 1, 2023, the Plaintiff shall
have parenting time with the minor child every other Saturday morning starting at
10:00 AM until Sunday at 6:00 PM. Defendant shall be responsible for
transportation costs.
IT IS FURTHER ORDERED that the Plaintiff shall have parenting time
with the minor child during Father Day’s weekend annually effective June 19,
2023. During this time, the Defendant shall be granted video calls with the child at
bedtime.
IT IS FURTHER ORDERED that after July 1, 2023, the Plaintiff shall
have parenting time with the minor child every other weekend starting from Friday
at 6:00 PM EST (after daycare or school) until Monday morning with Plaintiff
responsible for transportation costs. Plaintiff shall also have every other Tuesday
after daycare or school until Wednesday morning with Plaintiff responsible for
transportation costs.
IT IS FURTHER ORDERED that the Plaintiff shall be granted video calls
with the minor child at bedtime during the week, and specifically on Tuesdays and
Thursdays at 7:00 PM EST.
IT IS FURTHER ORDERED that the parties shall follow the Wayne
County Co-Parenting Plan Holiday and School Break Parenting Time Schedule.
IT IS FURTHER ORDERED that prior to August 1, 2023[,] the parties
shall consult with the minor child’s current physicians for a medical referral for a
Michigan physician to continue proper treatment of his burn injuries. If medical
appointments are currently scheduled in Indiana, the parties shall not delay said
treatment plan and work to secure continuing medical treatment in Michigan when
deemed appropriate by current medical professionals.
IT IS FURTHER ORDERED that all of the minor child’s medical
appointments shall be shared between the parties on the 1st day of each month. If
any emergencies occur, the parent with physical custody at the time of the
emergency must immediately advise the other parent without delay.
IT IS FURTHER ORDERED that the Plaintiff and the minor child shall
participate in family counseling to promote reunification.
Both parties filed motions on May 3, 2023, with defendant requesting a stay of the
proceedings pending an appeal and plaintiff seeking clarification and relief under MCR 2.612.
Plaintiff opined that clarification was necessary because the trial court’s order failed to specify
defendant’s parenting-time schedule after NB began school in Michigan, and, presumably, the
court intended defendant’s parenting time to be limited to every other weekend since midweek
parenting time would be impractical in light of the three-hour drive between defendant’s residence
and the school NB would attend in Michigan. Both motions were scheduled to be heard on June
28, 2023.
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Unbeknownst to the parties, however, the trial court entered an amended opinion and order
on May 4, 2023, citing MCR 6.435(B) as authority for clarifying the terms of the original order.
While the findings in the amended opinion and order were substantively identical in most respects
to the court’s original opinion and order, the amended opinion and order’s conclusions were
substantively different. The amended opinion and order concluded with the following:
CHANGE OF DOMICILE
IT IS HEREBY ORDERED that the minor child’s legal residence shall be
changed to Michigan effective July 1, 2023.
CUSTODY
IT IS HEREBY ORDERED that the parties shall have joint legal and
physical custody of the minor child.
GENERAL CO-PARENTING AND PARENTING TIME PROVISIONS
IT IS FURTHER ORDERED that the parties shall adhere to the following
provisions:
a) Defendant mother shall have parenting time with the minor child each
summer (“Summer Parenting Time is defined as the period between the day school
is dismissed at the end of the school year until the day school reconvenes in the
Fall”).
b) Each summer, the Plaintiff father shall have parenting time with the
minor child every other weekend Friday at 7:00 PM until Sunday at 6:00 PM.
c) While Defendant mother is exercising parenting time, Plaintiff father
shall be granted liberal video calls with the minor child.
d) During the school year, the Defendant mother shall have parenting time
with the minor child every other weekend Friday at 7:00PM until Sunday at
6:00PM.
e) While Plaintiff father is exercising parenting time, Defendant mother
shall be granted liberal video calls with the minor child.
f) Unless the parties agree in writing, neither party shall ever have the minor
child for three or more weekends in a row. If the ordered parenting time schedule
results in such an occurrence, then the parties shall exchange scheduled weekends
to prevent this from occurring.
g) On or before August 1, 2023 the parties shall consult with the minor
child’s current physicians for a medical referral for a Michigan physician to
continue proper treatment of his burn injuries. If medical appointments are
currently scheduled in Indiana, the parties shall not delay said treatment plan and
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work to secure continuing medical treatment in Michigan when deemed appropriate
by current medical professionals.
h) All of the minor child’s medical appointments shall be shared between
the parties on the 1st day of each month. If any emergencies occur, the parent with
physical custody at the time of the emergency must immediately advise the other
parent without delay.
i) Plaintiff father and minor child shall participate in family counseling to
promote reunification.
j) The parties shall follow the Wayne County Holiday Parenting Time
Schedule related to Spring and/or Mid-Winter Break and Christmas/Holiday Break
(abridged attached).
* * *
TRANSPORTATION
IT IS FURTHER ORDERED that the parties are free to select a [sic] one
or more designated meeting locations that are equal distant to Plaintiff father’s
residence in Michigan and the Defendant mother’s residence in Indiana, as long as
they both agree, in writing.
When the parties appeared for oral argument on their motions on June 28, 2023, the trial
court immediately acknowledged that the parties had not received the amended opinion and order
before that day because of an oversight in the court’s transition to a new “system.” The court
apologized for the mistake and indicated that it would still hear both motions. Plaintiff opined that
his motion was no longer necessary in light of the amended order, while defendant vigorously
opposed the amended order, both on procedural grounds and because it dramatically changed the
parties’ respective parenting time. Without directly addressing the parties’ positions regarding the
propriety of the amendment, the court acknowledged plaintiff’s withdrawal of his motion and
denied defendant’s motion to stay. A later written order repeated the court’s denial of defendant’s
motion and indicated that plaintiff’s motion was moot as a result of the amended opinion and order.
This appeal followed.
II. JURISDICTION
Preliminarily, we address plaintiff’s contention that this Court lacks jurisdiction in Docket
No. 366008 because the April 26, 2023 opinion and order from which defendant appealed by right
was not a final order. We disagree.
This Court has jurisdiction over an appeal of right filed by an aggrieved party from “[a]
final judgment or final order of the circuit court . . . as defined in MCR 7.202(6) . . . .” MCR
7.203(A)(1). Relevant to defendant’s appeal in Docket No. 366008, a final judgment or final order
is defined to include “a postjudgment order that, as to a minor, grants or denies a motion to change
legal custody, physical custody, or domicile[.]” MCR 7.202(6)(a)(iii). The consent judgment
indicated that NB’s domicile would be changed to Indiana and granted defendant primary physical
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custody. Plaintiff moved to change NB’s domicile, custody, and parenting time, and the trial court
granted the motion in its April 26, 2023 order. Accordingly, the order appealed in Docket No.
366008 is a final judgment or order under MCR 7.202(6)(a)(iii), and defendant’s timely claim of
appeal vested this Court with jurisdiction under MCR 7.203(A)(1).
III. STANDARDS OF REVIEW
“In a child 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.’ ” Pennington v
Pennington, 329 Mich App 562, 569-570; 944 NW2d 131 (2019), quoting MCL 722.28. Whether
a trial court properly interpreted or applied a court rule is a question of law. Henry v Dow Chem
Co, 484 Mich 483, 495; 772 NW2d 301 (2009). In the context of a child custody dispute, such a
question is reviewed for clear legal error. See Pennington, 329 Mich App at 570. “A trial court
commits clear legal error when it incorrectly chooses, interprets, or applies the law.” Id. (quotation
marks and citation omitted).
Discretionary rulings, including decisions regarding change of domicile or custody, are
reviewed for an abuse of discretion. Moote v Moote, 329 Mich App 474, 477; 942 NW2d 660(2019); Pennington, 329 Mich App at 570. “In this context, an abuse of discretion exists when the
result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a
defiance of judgment, or the exercise of passion or bias.” Sulaica v Rometty, 308 Mich App 568,
577; 866 NW2d 838 (2014). Underlying factual findings are “reviewed under the great weight of
the evidence standard,” Yachcik v Yachcik, 319 Mich App 24, 31; 900 NW2d 113 (2017), and
“should be affirmed unless the evidence clearly preponderates in the opposite direction,” Moote,
329 Mich App at 478. To the extent the trial court assessed witness credibility, the court’s
determination is entitled to deference on appeal. Id.
IV. AMENDMENT OF THE INITIAL ORDER
In Docket No. 366798, defendant’s only claim of error concerns the trial court’s authority
to sua sponte amend its first written order. Because the trial court’s amended order substantially
changed its decision, as reflected in both its oral ruling and first written order, we agree that it
cannot be characterized as correction of a clerical error authorized under MCR 2.612(A)(1) (the
civil counterpart to the criminal rule of procedure cited by the trial court).
Although defendant focuses much of her argument on the well-settled rule that a trial court
may not modify or amend judgments or orders governed by the Child Custody Act, MCL 722.21
et seq., absent a showing of proper cause or change of circumstances, MCL 722.27(1)(c),
resolution of this claim of error turns principally on whether the court’s amended order corrected
a clerical mistake in the first order. The trial court’s amended order stated that it was entered
pursuant to MCR 6.435(B) to clarify the earlier order. As defendant correctly points out on appeal,
the rule cited in the amended order governs criminal proceedings only and, therefore, could not
support entry of the challenged order in this family law matter. See MCR 6.001 (describing the
scope and applicability of rules in Chapter 6). This flaw in the trial court’s amended order is not
dispositive, however, because we will not reverse when the trial court reaches the right result for
the wrong reason, Bailey v Antrim Co, 341 Mich App 411, 420; 990 NW2d 372 (2022), and
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defendant acknowledges that an analogous court rule exists within the chapter of the court rules
governing civil procedure.
MCR 2.612(A)(1)2 provides, “Clerical mistakes in judgments, orders, or other parts of the
record and errors arising from oversight or omission may be corrected by the court at any time on
its own initiative or on motion of a party and after notice, if the court orders it.” “The purpose
behind MCR 2.612(A)(1) is to make the lower court record and judgment accurately reflect what
was done and decided at the trial level.” Central Cartage Co v Fewless, 232 Mich App 517, 536;
591 NW2d 422 (1998) (quotation marks and citation omitted). In Central Cartage Co, for
instance, this Court cited MCR 2.612(A)(1) as authority for correcting a judgment that was
mistakenly entered against all the defendants after the trial court orally excluded one of the
defendants from its ruling. Id. at 534, 536. This Court explained that, in that context, correction
under MCR 2.612(A)(1) was appropriate so that the written judgment was consistent with “the
trial court’s intended and orally expressed ruling . . . .” Id. at 536.
Here, the trial court first announced its ruling on the record on March 21, 2023. At that
time, the court stated that the parties would share joint legal and physical custody, and that
defendant was to “relocate [NB] to Michigan” no later than July 1, 2023. Before that date, plaintiff
was afforded parenting time every other weekend from Saturday at 10:00 a.m. until Sunday at 6:00
p.m., as well as liberal video calls throughout the week. After July 1, 2023, plaintiff’s alternating
weekend parenting time was extended to begin at 6:00 p.m., or immediately after daycare or
school, on Friday and continue until Monday morning when plaintiff would deliver NB to daycare
or school. Plaintiff was also awarded overnight weekday parenting time every Tuesday. The court
stated that “[a]ny other parenting time” would be governed by the Wayne County standard
schedule “with regard to the infant toddler parenting time policy, summer breaks, holiday, and
school break parenting time schedule.”
The trial court’s April 26, 2023 order largely mirrored its oral ruling, subject to two
exceptions. First, in the schedule outlined in the written order, plaintiff was awarded overnight
parenting time “every other Tuesday,” while the court’s oral ruling referenced “every Tuesday.”
Second, the trial court’s oral incorporation of the default county schedule referred to the infant and
2
Subrule (A)(2) controls correction of clerical mistakes after a claim of appeal has been filed,
limiting the trial court’s ability to “correct errors” by reference to MCR 7.208(A) and (C). MCR
2.612(A)(2). The amended order was signed on May 4, 2023, and entered in the trial court’s
register of actions as having been issued that day. See MCR 8.119(D)(1)(a) (stating, in part, that
the “case history entry of each order, judgment, opinion, notice or other item issued by the court
shall be dated with the date of issuance”). Defendant filed her claim of appeal the next day, i.e.,
May 5, 2023. But it is undisputed that the parties did not learn of the amended order until June
28, 2023, several weeks after defendant’s claim of appeal was filed. The register-of-actions entry
was likewise made on June 28, 2023, but backdated to May 5, 2023. Because defendant does not
appear to take issue with this procedural anomaly on appeal, we will approach this issue under
MCR 2.612(A)(1). We do not express any opinion as to the timing of the entry, recording, and
notice of the amended order.
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toddler policy, as well as summer breaks, holidays, and other school breaks, but the written order
incorporated only the holiday and school-break schedule.
Comparing these rulings with the trial court’s May 4, 2023 amended order, it is apparent
that that the trial court did more than correct a clerical mistake in the record when it entered the
amended order. The amended order imposed a vastly different parenting-time schedule that did
not comport with the schedule the court announced on the record. The trial court’s amended order
identified one schedule, without reference to the date NB’s legal residence was to change to
Michigan. That schedule provided that defendant would have parenting time each summer, subject
to plaintiff’s summer parenting time every other weekend from Friday at 7:00 p.m. until Sunday
at 6:00 p.m. But during the school year, defendant would have parenting time every other weekend
from Friday at 7:00 p.m. until Sunday at 6:00 p.m. The parties’ respective parenting time would
remain governed by the standard county parenting-time plan as it related to holidays and school
breaks. Under this schedule, for the vast majority of the year, defendant was granted parenting
time a mere two overnights in every two-week period, whereas she would exercise parenting time
9 or 10 overnights under the trial court’s original ruling, depending on whether plaintiff’s midweek
parenting time occurred every week or only on alternating weeks. And although the amended
order granted defendant most of the summer-break parenting time, that was little more than she
would have exercised under the originally-stated schedule.
Inasmuch as nothing in the trial court’s oral ruling suggested that it intended this result
from the outset, MCR 2.612(A)(1) did not provide authority for the trial court to dramatically alter
its original ruling under the guise of correcting a clerical error. Plaintiff characterizes the trial
court’s amendment as merely adding a “crucial provision inadvertently omitted from the April 26
order—the school-year parenting time schedule.” While we agree that the trial court’s original
ruling would prove impractical during the school year as long as defendant remained living in
Indiana, that fact does not alter the obvious procedural error in this case. MCR 2.612(A)(1) allows
a trial court to correct clerical mistakes arising from oversight or omission so as to make the written
record “accurately reflect what was done and decided . . . .” Central Cartage Co, 232 Mich App
at 536 (quotation marks and citation omitted). It does not authorize a trial court to reach an entirely
different decision upon recognizing that its first ruling was unsound. Because the trial court
exceeded the scope of MCR 2.612(A)(1) by altering the substance of its initial order beyond mere
correction of a clerical mistake, we vacate the May 4. 2023 amended opinion and order. Accord
People v Comer, 500 Mich 278; 901 NW2d 553 (2017) (vacating amended judgment of sentence
when trial court lacked authority to correct invalid sentence on its own initiative).
V. CHANGE OF DOMICILE
Turning to Docket No. 366008, defendant challenges the trial court’s analysis of plaintiff’s
request to change NB’s domicile. We conclude that any error in the trial court’s analysis under
the framework applicable to MCL 722.31 was harmless because plaintiff’s motion did not actually
request a change in legal residence that would implicate that statute, despite the manner in which
it was titled.
Requests to change a child’s legal residence are governed by MCL 722.31. Moote, 329
Mich App at 478-479. Subsection (1) identifies the general rule, stating:
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A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. Except as otherwise
provided in this section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location that is more than
100 miles from the child’s legal residence at the time of the commencement of the
action in which the order is issued. [MCL 722.31(1).]
Subsection (4) identifies several factors a court must consider “[b]efore permitting a legal
residence change otherwise restricted by subsection (1) . . . .” MCL 722.31(4).
This Court has on several occasions described the appropriate analytical process a trial
court must follow in considering a motion to change a child’s legal residence:
First, a trial court must determine whether the moving party has established
by a preponderance of the evidence that the factors enumerated in MCL 722.31(4),
the so-called D’Onofrio factors,[3] support a motion for a change of domicile.
Second, if the factors support a change in domicile, then the trial court must then
determine whether an established custodial environment exists. Third, if an
established custodial environment exists, the trial court must then determine
whether the change of domicile would modify or alter that established custodial
environment. Finally, if, and only if, the trial court finds that a change of domicile
would modify or alter the child’s established custodial environment must the trial
court determine whether the change in domicile would be in the child’s best
interests by considering whether the best-interest factors in MCL 722.23 have been
established by clear and convincing evidence. [Moote, 329 Mich App at 480,
quoting Rains, 301 Mich App at 325 (quotation marks omitted).]
Defendant argues that the trial court’s change-of-domicile analysis was flawed in a variety
of ways, but none of those arguments warrant relief because the relevant proceedings did not, in
fact, involve a change of domicile. By dictating that a child has “a legal residence with each
parent,” MCL 722.31(1) clearly contemplates that the child will have two legal residences. This
understanding is further supported by the language of subsection (5), which refers to agreements
regarding a change in “either of the child’s legal residences.” MCL 722.31(5) (emphasis added).
Thus, NB had two legal residences in this case—one in Huntington, Indiana, where defendant
resided, and one in Allen Park, Michigan, where plaintiff resided. Although styled as a motion to
change domicile, custody, and parenting time, plaintiff’s motion did not actually ask the court to
permit a change in either of these legal residences in the sense contemplated by MCL 722.31. See,
e.g., Moote, 329 Mich App at 480 (explaining that a trial court must engage in the four-part analysis
discussed above “when a parent moves for leave to change a child’s domicile by a distance of more
than 100 miles”). Plaintiff did not wish to relocate from Allen Park or to force defendant to
relocate from Huntington—the only events that would result in a change of NB’s legal residence
under MCL 722.31(1). He merely sought expanded parenting time and modification of NB’s
custody. Because a change in NB’s legal residence was never at issue, MCL 722.31 was not
3
D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (Ch Div, 1976).
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implicated. Consequently, any error in the trial court’s analysis of the proposed “change of
domicile” was harmless.
VI. CREDIBILITY
Defendant next argues that the trial court erred by adopting Judge Thomas’s credibility
finding from plaintiff’s criminal trial rather than independently assessing the parties’ credibility.
We agree that the trial court failed to independently determine the veracity of defendant’s
allegations, which constituted clear legal error.
“The Child Custody Act provides a comprehensive scheme for resolving child-custody
disputes, including specific procedural requirements and factual findings under MCL 722.27(1)(c)
that must be made before a trial court may modify a child’s established custodial environment.”
Kuebler v Kuebler, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 362488); slip op
at 15-16 (citations omitted). Before modifying custody, trial courts are tasked with determining
(1) whether the proper-cause or change-of-circumstances threshold for fully considering
modification has been met, (2) whether an established custodial environment exists and the effect
the proposed change would have on that environment, and (3) whether the proposed change would
serve the child’s best interests in light of the statutory factors outlined in MCL 722.23. Id. at ___;
slip op at 16-17. This process is highly fact intensive. As the fact-finder, the trial court was
“obligated to determine the weight and credibility of the evidence presented.” Wright v Wright,
279 Mich App 291, 299; 761 NW2d 443 (2008).
It is well-settled that appellate courts will defer to a trial court’s determinations regarding
credibility. Moote, 329 Mich App at 478. The reason for this rule is obvious: credibility can rarely
be accurately determined from a witness’s words alone. Shuler v Mich Physicians Mut Liability
Co, 260 Mich App 492, 519; 679 NW2d 106 (2004). Credibility determinations are influenced by
other factors including the witness’s “tonal quality, volume, speech patterns, and demeanor,” id.(quotation marks and citation omitted), the witness’s body language, mood, and nonverbal cues,
People v Horton, 341 Mich App 397, 405; 989 NW2d 885 (2022), and the witness’s overall
behavior, conduct, and attitude during the proceedings, People v Kammeraad, 307 Mich App 98,
141; 858 NW2d 490 (2014). Limited by review of a cold record, appellate courts are necessarily
in a poor position to assess these types of factors. For these reasons, deference to the fact-finder’s
credibility determinations is well warranted on appeal.
While the fact issue that the trial court had before it in this case was the same one that
Judge Thomas considered in the criminal proceedings against plaintiff—whether defendant was
being truthful when she asserted that defendant pointed a gun at defendant and NB—the trial court
was not acting in an appellate capacity, tasked with reviewing the outcome of the criminal case.
The questions before the trial court were entirely distinct. As the fact-finder in this case, the trial
court was “obligated to determine the weight and credibility of the evidence presented.” Wright,
279 Mich App at 299. It could not abandon that duty by deferring to Judge Thomas’s view of
defendant’s credibility at the criminal trial. To the extent the trial court did so in this case, it
amounted to clear legal error.
That said, we are not persuaded that the trial court’s error was as pervasive as defendant
suggests. The trial court’s comments regarding the criminal trial are indeed problematic, but it
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does not automatically follow that the trial court completely abdicated its responsibility as fact-
finder. The parties’ testimonies conflicted with respect to many issues, and the record provides no
basis to conclude that the trial court simply accepted plaintiff’s version of events every time
plaintiff’s testimony differed from defendant’s testimony based on Judge Thomas’s finding that
defendant lacked credibility. We are aware of no authority, and defendant has cited none, requiring
trial courts to make explicit credibility findings in ruling on a motion to modify parenting time and
custody. We will, therefore, focus on the discrete instances in which the trial court clearly
incorporated Judge Thomas’s credibility determination into its analysis.
The trial court first mentioned Judge Thomas’s credibility finding in its discussion of MCL
722.31(4)(e), opining that the domestic-violence factor in the change-of-domicile inquiry was
inapplicable because plaintiff was found not guilty as a result of defendant’s lack of credibility.
Because MCL 722.31 was never implicated in this case for the reasons outlined in Part V of this
opinion, the trial court’s error concerning this factor was harmless.
The issue next arose in the trial court’s analysis of best-interest factor (k), MCL 722.23(k),
which likewise concerns domestic violence. Mirroring its position with respect to MCL
722.31(4)(e), the court stated that best-interest factor (k) was “not applicable as the Plaintiff father
was found not guilty of domestic violence as Defendant mother’s testimony was found to not be
credible.” The trial court erred by declaring this factor inapplicable based solely on Judge
Thomas’s credibility determination in the criminal trial without independently evaluating the
relevant evidence.
Lastly, in its oral ruling, the trial court expressed “concern” regarding defendant’s
credibility in the criminal trial and the fact that the criminal charges severely diminished NB’s
contact with plaintiff during a “very crucial developmental period in his life.” Notably, however,
the court attributed this concern to best-interest factor (l), which was entirely omitted from the
court’s written opinion and order. “[A] court speaks through its written orders and judgments, not
through its oral pronouncements.” In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d
44 (2009). Whether by design or neglect, the written order was silent as to best-interest factor (l).
Under these circumstances, we will not construe the court’s comment as error requiring reversal.
VII. BEST-INTEREST FACTORS
Lastly, defendant takes issue with the trial court’s evaluation of the statutory best-interest
factors, arguing that most of the court’s findings were insufficient, unsupported by the evidence,
and did not support its ultimate conclusion that a change in custody was warranted. We agree that
the trial court erred with respect to best-interest factors (d), (j), and (k). We further conclude that
those errors cannot be deemed harmless on this record, so we vacate the April 26, 2023 opinion
and order and remand for further proceedings.
Under MCL 722.27(1)(c), a trial court “shall not modify or amend its previous judgments
or orders or issue a new order so as to change the established custodial environment of a child
unless there is presented clear and convincing evidence that it is in the best interest of the child.”
Whether characterized as a change in custody or a modification of parenting time “that has the
effect of altering the established custodial environment,” the moving party bears the burden of
proving by clear and convincing evidence that the proposed change is in the child’s best interests.
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Kuebler, __ Mich App at ___; slip op at 17. “To determine a child’s best interests, the trial court
is required to consider the 12 best-interest factors found in MCL 722.23, applying the appropriate
standard of proof.” Id. at ___; slip op at 17. Although the trial court’s initial order failed to identify
whether NB had an established custodial environment or how that environment would be affected
by plaintiff’s proposed changes, it is apparent from the record as a whole that the court found NB’s
established custodial environment existed with defendant and applied the clear-and-convincing
burden of proof to plaintiff’s motion. Defendant does not appear to challenge this aspect of the
trial court’s ruling.
Defendant also does not challenge the trial court’s findings regarding best-interest factors
(a) (love, affection, and other emotional ties), MCL 722.23(a), which the trial court found to favor
defendant slightly; (c) (capacity and disposition to provide food, clothing, medical or remedial
care, and other material needs), MCL 722.23(c), which the court found favored the parties equally;
or (i) (child’s reasonable preference), MCL 722.23(i), which the court did not consider because of
NB’s young age. Defendant takes issue with the balance of the best-interest factors, arguing that
the trial court’s findings were factually unsupported and insufficiently detailed.
Concerning the latter point, this Court has explained that “the family court must consider
all the factors delineated in MCL 722.23 and explicitly state its findings and conclusions with
respect to each of them.” Spires v Bergman, 276 Mich App 432, 443; 741 NW2d 523 (2007).
“The trial court need not necessarily engage in elaborate or ornate discussion because brief,
definite, and pertinent findings and conclusions regarding the contested matters are sufficient.”
Foskett v Foskett, 247 Mich App 1, 12; 634 NW2d 363 (2001). In other words, while explicitly
stated findings are required, discussion of the evidence is not. Sinicropi v Mazurek, 273 Mich App
149, 180; 729 NW2d 256 (2006). Nonetheless, the record created by the trial court must be
sufficient to facilitate appellate review. MacIntyre v MacIntyre (On Remand), 267 Mich App 449,
452; 705 NW2d 144 (2005).
Factor (b) addresses “[t]he 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.” MCL 722.23(b). The trial court concluded that factor (b) favored the
parties equally, without explanation. Defendant testified that she took NB to church regularly and
described the activities he participated in there. Defendant did not believe that plaintiff took NB
to church during his parenting time, and plaintiff did not dispute that contention. Plaintiff
acknowledged that he did not agree with the creed endorsed by defendant’s former church in
Michigan and would have had difficulty supporting NB on a spiritual level if NB continued to
attend that church. But plaintiff did not offer similar criticisms of NB’s Indiana church. To the
contrary, plaintiff stated that he would promote NB’s religious upbringing if his motion was
granted. Based on this evidence, if factor (b) focused only on religious support, defendant’s
argument that the trial court’s finding with respect to factor (b) was against the great weight of the
evidence might be well founded. But capacity and disposition to give love and affection are also
encompassed by factor (b), and there was ample evidence that plaintiff is a loving and affectionate
parent. Even defendant conceded that NB went to parenting time with plaintiff willingly and
seemed to enjoy their time together. We are therefore not persuaded that the trial court’s finding
was against the great weight of the evidence.
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Factor (d) addresses “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). The trial court
found that this factor favored the parties equally, again without offering any reasoning for that
finding. Proper analysis of this factor requires the trial court to focus on “the environments in
which the child has lived in the past and the desirability of maintaining the continuity of those
environments.” Demski v Petlick, 309 Mich App 404, 448-449; 873 NW2d 596 (2015). We agree
with defendant that the trial court’s finding was contrary to the great weight of the evidence. NB
and defendant moved to Indiana in early October 2019, when NB was approximately 20 months
old. Since then, NB has resided in the same house with defendant and the maternal grandparents,
and the record reveals no concerns regarding the suitability of that environment or obvious reasons
that maintaining continuity would not be desirable in this instance. In fact, NB’s therapist opined
that it would be best for NB to remain in the stable, secure environment to which he had grown
accustomed. Although plaintiff continues to reside in the marital home where NB lived before
October 2019, it is doubtful that NB would feel the same sense of stability in that setting
considering the young age at which he stopped living there. It was not until fall 2022 that the trial
court modified the parenting-time schedule in manner that allowed NB to spend more than eight
consecutive hours in plaintiff’s home, and even then, the single overnight NB spent there every
other weekend was vastly outweighed by the time he spent in defendant’s household. In the
absence of any rational explanation for the trial court’s finding regarding factor (d), we conclude
that the evidence clearly preponderates against the trial court’s finding. Factor (d) should have
favored defendant.
Factor (e) addresses “[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes.” MCL 722.23(e). The trial court found that factor (e) favored the parties
equally, but its proffered reasoning plainly does not apply to this factor.4 Nonetheless, the evidence
did not weigh against the trial court’s finding merely because NB has not resided with plaintiff for
many years. Permanence of the custodial unit is the critical consideration under factor (e). See
Brown, 332 Mich App at 21. Defendant lived with her parents since October 2019 and intended
to purchase their home someday. Defendant noted that NB was quite close to her parents and
loved them very much. Inasmuch as NB had lived as a family unit with defendant and her parents
for approximately 3½ of his 5 years, the custodial unit in defendant’s home was plainly permanent
in the sense of MCL 722.23(e). But plaintiff’s home was also plainly permanent in the sense of
MCL 722.23(e). Plaintiff lived in his home for over 20 years, including for the duration of the
parties’ marriage and the first 20 months of NB’s life, and had no intention of moving. NB’s half-
sister, with whom all evidence suggests NB was closely bonded, resided there as well while in
plaintiff’s custody. Even if NB and defendant had not been living there for several years, the
family unit consisting of plaintiff and NB’s half-sister had a sense of permanency within plaintiff’s
4
In its written order, the trial court found that factor (e) favored the parties equally, reasoning:
“The Court believes that the injuries sustained by the minor child were accidental, and Defendant
mother acted appropriately when she immediately sought medical care for the child. However,
the Plaintiff father should have been promptly notified of the accident.” It appears that the
inclusion of this rationale under factor (e) was a clerical error, as the trial court attributed this
reasoning to factor (c) in its oral ruling.
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household. We therefore reject defendant’s argument that the trial court’s analysis of factor (e)
suffered from the same flaw that occurred with respect to factor (d).
Factor (f) addresses “[t]he moral fitness of the parties involved.” MCL 722.23(f). The
trial court found that this factor favored the parties equally because there was no persuasive
evidence that either party’s parenting was negatively affected by moral factors. Defendant takes
issue with this finding, opining that plaintiff lacked moral fitness because he (1) pointed a loaded
gun at her and NB and (2) insisted that defendant refer to him as “Lord and Master.” “A parent’s
questionable conduct is relevant to [this factor] only if it is a type of conduct that necessarily has
a significant influence on how one will function as a parent.” Brown, 332 Mich App at 22
(quotation marks and citation omitted; alteration in original). Whether the incident with the gun
actually occurred remains an open question at this juncture, and, in any event, the evidence on that
point is more properly analyzed under the domestic-violence factor, MCL 722.23(k). As to
defendant’s second argument, plaintiff explained that he instructed defendant to call him “Lord
and Master” during a heated text-message exchange in the hope of inserting levity into the
situation, and he recognized in retrospect that it was not funny. We fail to understand how a
poorly-considered text message, no matter how demeaning to defendant, impairs plaintiff’s
functioning as a parent. We therefore conclude that the trial court did not err by finding that there
was no persuasive evidence relative to factor (f).
Factor (g) addresses “[t]he mental and physical health of the parties involved.” MCL
722.23(g). The trial court found that this factor favored the parties equally, as neither party raised
concerns with respect to this point. In challenging this finding, defendant merely expresses her
own opinion that plaintiff must be “a very sick man,” as evidenced by the gun incident. We decline
defendant’s invitation to endorse the automatic presumption that those who engage in criminal
activity suffer from some form of mental illness. The only evidence concerning the parties’
respective mental health was testimony that each treated with counselors. There was no indication
that either party was plagued by poor physical health. The trial court’s finding was clearly not
contrary to the great weight of the evidence.
Factor (h) addresses “[t]he home, school, and community record of the child.” MCL
722.23(h). Citing the trial court’s oral ruling, defendant argues that the trial court erred by finding
that this factor favored neither party. Defendant’s argument lacks merit for one simple reason: in
its written order, the trial court found factor (h) slightly favored defendant. Because “a court
speaks through its written orders and judgments, not through its oral pronouncements,” In re
Contempt of Henry, 282 Mich App at 678, the written order is controlling on this point. Thus,
contrary to defendant’s claim of error, the trial court must have recognized that NB’s home, school,
and community record in defendant’s care was positive, such that factor (h) should be credited in
her favor.
Factor (j) addresses “[t]he 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.” MCL 722.23(j). The statute goes on to instruct trial courts that they
“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.” Id. The trial court found that factor (j) favored plaintiff, without explanation. Defendant
questions the factual basis for the trial court’s finding in light of the second sentence of MCL
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722.23(j) precluding negative consideration of actions taken to protect a child or parent from
domestic violence by the other parent. Although the trial court’s succinct, unexplained findings
with respect to many of the factors—including factor (j)—leave much to be desired, the record
with respect to the other factors discussed earlier was fairly clear, often undisputed, and sufficient
for this Court to review the trial court’s findings under the appropriate standard of review. See
MacIntyre, 267 Mich App at 452 (“[T]he record must be sufficient for this Court to determine
whether the evidence clearly preponderates against the trial court’s findings.”). The same cannot
be said for factor (j), however. The evidence that could have been considered for this factor was
too wide spread and dependent on the veracity of the parties as witnesses for this Court to properly
review without a more detailed finding from the trial court. Any attempt to review the trial court’s
finding regarding factor (j) at this time would require an improper level of speculation by this
Court.
Additionally, defendant’s assertion that the trial court improperly considered her
allegations regarding the gun incident bears consideration. There is no doubt that criminal charges
stemming from defendant’s allegations played a substantial role in the development of this case.
The consent judgment granting defendant primary physical custody and affording plaintiff
minimal supervised parenting time was seemingly premised primarily, if not exclusively, on the
suspicion that plaintiff had committed felonious assault against defendant and NB. In its oral
ruling, the trial court expressed concern regarding defendant’s credibility in the criminal case and
the impact the charges had on plaintiff’s contact with NB during a crucial developmental period.
While the exclusion of this comment from the written order may be significant, it defies credulity
to ignore the obvious fact that the trial court contemplated plaintiff’s acquittal and Judge Thomas’s
credibility determination, even if it later chose not to rely on those considerations. As it stands,
we are simply unable to determine whether the trial court’s finding regarding factor (j) was
erroneous.
Factor (k) addresses “[d]omestic violence, regardless of whether the violence was directed
against or witnessed by the child.” MCL 722.23(k). The trial court found factor (k) inapplicable
because plaintiff was acquitted after Judge Thomas deemed defendant’s testimony incredible. For
the reasons set forth in Part VI of this opinion, the trial court’s finding—premised entirely on Judge
Thomas’s view of defendant’s credibility in the criminal case—amounted to clear legal error
because the court should have assessed the credibility of defendant’s allegations independently on
the basis of the evidence before the court in this case.
Factor (l) addresses “[a]ny other factor considered by the court to be relevant to a particular
child custody dispute.” MCL 722.23. Although the trial court mentioned this factor in its oral
ruling as noted earlier, the court did not include factor (l) in its written order. Because courts speak
through written orders, rather than oral rulings, In re Contempt of Henry, 282 Mich App at 678,
any error with respect to this factor was harmless.
In sum, the trial court erred with respect to factor (d) because the great weight of the
evidence clearly demonstrated that factor (d) favored defendant; the trial court’s conclusory
finding regarding factor (j) is insufficient for this Court to properly review; and the trial court’s
finding regarding factor (k) involved clear legal error.
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When a trial court errs in its analysis of the best-interest factors, the appropriate remedy is
to remand for further proceedings, unless the error was harmless. Fletcher v Fletcher, 447 Mich
871, 882; 526 NW2d 889 (1994). We conclude that the errors in this case cannot be deemed
harmless. The trial court’s decision was based on findings that best-interest factors (a) and (h)
favored defendant, factor (j) favored plaintiff, and all other factors were either equal or
inapplicable. Coupled with the trial court’s conclusion that plaintiff demonstrated by clear and
convincing evidence that a change of custody and parenting time was warranted, we infer that the
trial court gave substantial weight to the single factor that favored plaintiff. Because this is the
very factor that is not amenable to appellate review on this record, there is no way to accurately
evaluate the trial court’s error for harmlessness. This is especially true when coupled with the trial
court’s factually unsupported finding regarding factor (d) and clear legal error regarding factor (k).
We therefore vacate the April 26, 2023 opinion and order and remand for further proceedings.
VIII. CONCLUSION
In Docket No. 366798, we vacate the trial court’s May 4, 2023 amended opinion and order.
In Docket No. 366008, we vacate the trial court’s April 26, 2023 opinion and order and remand
for further proceedings. On remand, the trial court should reevaluate its ruling under the
appropriate legal framework, taking into account up-to-date information and NB’s circumstances
as they exist at the time of remand. Butters v Butters, 510 Mich 1096, 1097 (2022).
Vacated and remanded for further proceedings. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
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