Order Michigan Supreme Court
Lansing, Michigan
July 9, 2021 Bridget M. McCormack,
Chief Justice
161674 & (68) Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
BRIDGET LEE BOFYSIL, Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 161674
COA: 351004
Jackson CC: 18-001635-DM
SARAH LYNNE BOFYSIL,
Defendant-Appellant.
_____________________________________/
On order of the Court, the motion to expedite is GRANTED. The application for
leave to appeal the April 23, 2020 judgment of the Court of Appeals is considered, and it
is DENIED, because we are not persuaded that the questions presented should be
reviewed by this Court.
VIVIANO, J. (dissenting).
I respectfully dissent from the Court’s decision to deny leave to appeal. In this
child custody case, the Court of Appeals appears to have run roughshod over the standard
of review in its haste to issue a published opinion rebuking the trial court for its
“improper reliance on [plaintiff’s] relationship with a married woman and its bias against
[plaintiff’s] role as a working parent . . . .” Bofysil v Bofysil, 332 Mich App 232, 248
(2020). In addition to erroneously substituting its own factual findings for those of the
trial court, the Court of Appeals mischaracterized the trial court’s findings and
misapprehended the applicable law. For these reasons, I would affirm in part, vacate in
part, and reverse in part the judgment of the Court of Appeals.
The trial court in this case issued a judgment of divorce that granted defendant
primary physical and sole legal custody of the parties’ minor child but awarded plaintiff
parenting time on alternating weekends. Regarding physical custody, the trial court
found that the child had an established custodial environment (ECE) with defendant but
not plaintiff, stating, in relevant part, as follows:
[Defendant] was the stay at home mom while the parties were together and
she has had primary physical custody continuously since they separated.
[The child] naturally looks currently to the parent she is with for love,
2
affection and the necessities of life. Since that parent is usually Defendant,
as she is with her the majority of the time, the Court finds an established
custodial environment exists with Defendant.
The trial court also indicated that its decision would have been the same even if it had
found that an ECE existed with both parents. The court believed that the evidence
supported granting primary physical custody to defendant under both the preponderance-
of-the-evidence standard and the clear-and-convincing-evidence standard.
After reviewing the best-interest factors, MCL 722.23, the trial court determined
that there was clear and convincing evidence that its custody and parenting-time awards
were in the child’s best interests. Turning to legal custody, the trial court found that the
parties failed to agree on anything pertaining to the child, that plaintiff had refused to
engage in joint parenting, and that plaintiff was harsh and abusive in her
communications. For those reasons, it awarded sole legal custody to defendant because it
awarded her primary physical custody.
The Court of Appeals affirmed in part the judgment of divorce but vacated the
custody award and remanded for further proceedings, holding that (1) the evidence
preponderated against the trial court’s ECE finding, (2) the trial court abused its
discretion in its physical-custody award, and (3) the trial court abused its discretion in
awarding sole legal custody to defendant. The Court of Appeals believed that it was an
error for the trial court to “discount the role” of plaintiff simply because she “worked
outside the home to support her family” and that the “error influenced the applicable
burden of proof and permeated the court’s assessment of the child’s best interests.”
Bofysil, 332 Mich App at 236. The Court of Appeals clearly viewed the evidence
differently than the trial court and would have made different findings if it had acted as
the finder of fact.
The findings of a trial court in child custody cases are ordinarily entitled to great
deference. See Pierron v Pierron, 486 Mich 81, 85 (2010) (“Under the Child Custody
Act, MCL 722.21 et seq., ‘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.’ MCL
722.28. Under this standard, a reviewing court should not substitute its judgment on
questions of fact unless the factual determination clearly preponderates in the opposite
direction.”) (some citations and quotation marks omitted; emphasis added); Maier v
Maier, 311 Mich App 218, 221 (2015) (“In child custody cases, an abuse of discretion
occurs if the result is so palpably and grossly violative of fact and logic that it evidences
not the exercise of will but perversity of will, not the exercise of judgment but defiance
thereof, not the exercise of reason but rather of passion or bias.”) (cleaned up).
First, it is important to note that the Court of Appeals applied the wrong standard.
The Court of Appeals held that “[t]he evidence preponderates against the circuit court’s
3
[ECE] finding.” Bofysil, 332 Mich App at 243. But the correct standard is whether the
factual determination clearly preponderates against the finding below, not just whether it
preponderates against that finding. Pierron, 486 Mich at 85.1
Second, I disagree that the evidence clearly preponderates against the trial court’s
ECE finding, as the trial court indicated that it would have made the same decision
regarding custody even if an ECE existed with both parents, and the trial court made clear
that it believed that the evidence supported its custody determination even under the
clear-and-convincing-evidence standard. Contrary to the assertion of the Court of
Appeals, the trial court’s ECE determination did not “permeate[] the court’s assessment
of the child’s best interests.” Bofysil, 332 Mich App at 236. In light of the explanation
from the trial court regarding its ECE determination, and given the Court of Appeals’
error in applying the proper standard of review, I would vacate Part III of the Court of
Appeals opinion.2
1
Although it stated the correct standard in the standard-of-review section, the Court
either made a clerical error when applying that standard or made a substantive error by
applying the wrong standard and reversing without meeting the appropriate standard.
2
I question whether the trial court even needed to establish whether an ECE existed.
MCL 722.27(1)(c) states, in relevant part, “The 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.” (Emphasis added.) Based on the language of
the statute alone, it is not clear to me that a court must determine whether an ECE exists
before entering a judgment of divorce. The statute distinguishes between judgments and
orders. The court must determine whether an ECE exists before modifying or amending
a previous judgment or order or a new order. But the statute does not indicate that the
initial entry of a judgment is also subject to this requirement.
However, the Court of Appeals has stated that MCL 722.27 requires a trial court
“to determine whether there is an established custodial environment with one or both
parents before making any custody determination.” Kessler v Kessler, 295 Mich App 54,
61 (2011). In at least one case, the Court of Appeals held that “an original action in
circuit court involving the determination of custody” is not subject to the ECE
requirement of MCL 722.27(1)(c). Helms v Helms, 185 Mich App 680, 682 (1990). But
since then, multiple panels have held that a trial court is required to make a finding
regarding whether an ECE existed if a temporary custody order existed, even when the
judgment being challenged is not an amended judgment. See, e.g., Jack v Jack, 239 Mich
App 668, 670 (2000); Bowers v Bowers, 190 Mich App 51, 53-54 (1991).
This seeming conflict between the statute and appellate decisions is an issue that
should be reviewed in an appropriate future case.
4
Third, in rebuking the trial court for looking at the fact that plaintiff worked
outside the home in making a decision about physical custody, the Court of Appeals
appears to have approached the case with a presumption that each parent should have
joint physical custody. But the Child Custody Act contains no such presumption.
Wellman v Wellman, 203 Mich App 277, 285 (1994). Rather, a trial court “shall
determine whether joint custody is in the best interest of the child by considering the
[best-interest] factors” enumerated in MCL 722.23. MCL 722.26a(1).
Fourth, the Court of Appeals mischaracterized the trial court’s findings with
respect to Best-Interest Factors (a), (b), and (c).3 Regarding Factors (a) and (b), the Court
of Appeals opined that defendant staying home to raise the child while plaintiff worked to
“support the family does not equate with one parent loving the child more or having more
affection for the child.” Bofysil, 332 Mich App at 246. The Court of Appeals’
observation is no doubt correct, but it is beside the point. The trial court said nothing
about which parent loved the child more or had more affection for the child, and Factors
(a) and (b) do not look at who has more love or affection.4 As for Factor (c), contrary to
the Court of Appeals’ assertion, the trial court did not “fail to credit [plaintiff] for
financially supporting . . . her family.” Bofysil, 332 Mich App at 246. Rather, the trial
court simply noted defendant’s capacity and disposition to also support the child due to
3
Factor (a) requires consideration of the following: “The love, affection, and other
emotional ties existing between the parties involved and the child.” MCL 722.23(a).
Factor (b) focuses on “[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). And Factor (c) considers “[t]he
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.” MCL 722.23(c).
4
I disagree with the underlying premise of the Court of Appeals that a trial court is
precluded from factoring in the amount of time that a parent spends with the child in its
findings regarding Factors (a) and (b). Indeed, it is hard to understand how the love,
affection, and emotional ties between a parent and her child would not be impacted by the
amount of time the two spend together. See, e.g., Argel v Argel, unpublished per curiam
opinion of the Court of Appeals, issued June 12, 2018 (Docket No. 340148), p 5
(rejecting the defendant’s argument “that the trial court placed too much emphasis on
how much time the child spent with plaintiff without regard to the child’s bond with
defendant” and explaining “that the plaintiff shared a stronger bond, given her daily and
consistent contact with the child as the child’s primary caregiver”); Miller, Custody and
Couvade: The Importance of Paternal Bonding in the Law of Family Relations, 33 Ind L
Rev 691, 733 (2000) (listing “spends time with the child” as one of the factors that
indicate bonding between a parent and child).
5
receiving child support—and there is no evidence to support the conclusion that the trial
court was incorrect in that assessment.
Fifth, the Court of Appeals’ determination that the trial court erred in relying on
plaintiff’s infidelity in its determination of Factors (d) and (e) conflicts with prior caselaw
from this Court.5 We have previously held that extramarital relationships cannot be
considered in the analysis of Factor (f) (moral fitness) because they “are not necessarily a
reliable indicator of how one will function within the parent-child relationship.” Fletcher
v Fletcher, 447 Mich 871, 887-888 (1994). In the present case, the Court of Appeals
thought that it was improper for the trial court to consider plaintiff’s new relationship in
analyzing Factors (d) and (e), stating that it “was improper under any factor.” Bofysil,
332 Mich App at 247, citing Fletcher, 447 Mich at 886-887. But in Fletcher we clarified
that “[t]o the extent that one’s marital misconduct actually does have an identifiable
adverse effect on a particular person’s ability or disposition to raise a child, those parental
shortcomings often may be reflected in other relevant statutory factors.” Fletcher, 447
Mich at 887. Thus, it was not improper for the trial court to look at plaintiff’s new
relationship in its analysis of Factors (d) and (e). And plaintiff’s parental shortcomings
due to her infidelity were reflected in other factors—specifically Factors (d) and (e)—as
explained by the trial court. The Court of Appeals’ analysis of these factors is clearly
erroneous and in direct conflict with the limitation we placed on our holding in Fletcher.
Finally, I do not believe that the Court of Appeals clearly erred by finding that the
trial court abused its discretion in awarding sole legal custody to defendant.6 But I
believe that it was improper for the Court of Appeals to impose a requirement that on
remand the trial court “must take into account alternative communication methods, if
feasible” in assessing the parties’ ability and willingness to communicate for purposes of
making a decision as to legal custody. Bofysil, 332 Mich App at 250. The Court cited no
authority for the proposition that a trial court must consider alternative means of
communication, and nothing in MCL 722.26a references alternative means of
communication. The Court of Appeals exceeded its mandate by imposing this
requirement on remand.
The Court of Appeals opinion is wrong as a matter of fact, as a matter of law, and
5
Those factors are, respectively, “[t]he length of time the child has lived in a stable,
satisfactory environment, and the desirability of maintaining continuity,” MCL
722.23(d), and “[t]he permanence, as a family unit, of the existing or proposed custodial
home or homes,” MCL 722.23(e).
6
Although there were some disagreements, the record did not support the trial court’s
statement that “the parties have demonstrated a total failure to agree on anything that
pertains to the minor child.”
6
in its application of the standard of review. For these reasons, I would (1) vacate Part III
of the Court of Appeals opinion; (2) reverse the Court of Appeals’ analysis of Best-
Interest Factors (a) through (e); and (3) affirm the Court of Appeals’ holding that the trial
court abused its discretion in awarding sole legal custody, but vacate the portion of its
opinion regarding alternative communication methods.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
July 9, 2021
b0706
Clerk