SHANNON YOTHER V BRIAN YOTHER
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STATE OF MICHIGAN
COURT OF APPEALS
SHANNON YOTHER,
UNPUBLISHED
November 13, 2001
Plaintiff-Appellant,
v
No. 233133
Jackson Circuit Court
LC No. 00-002821-DM
BRIAN YOTHER,
Defendant-Appellee.
Before: Gage, P.J., and Jansen and O’Connell, JJ.
PER CURIAM.
Plaintiff appeals as of right from the judgment of divorce in which defendant was
awarded joint legal custody and unsupervised visitation rights with the parties’ minor daughter.
We reverse and remand.
The parties were married on May 8, 1998, and their daughter was born on September 30,
1998. Plaintiff filed a complaint for divorce on May 30, 2000. On that same date, plaintiff filed
a petition for temporary physical and legal custody of the child and requested that defendant’s
parenting time be supervised. On June 28, 2000, the trial court entered an order awarding to
plaintiff temporary physical and legal custody of the child and referred other issues to the friend
of the court. Trial in the divorce matter was held on January 25, 2001, and the trial court entered
the judgment of divorce on March 2, 2001. The only issues being raised on appeal concern the
award of custody. Under the child custody provision, the trial court awarded the parties joint
legal custody and plaintiff was awarded physical custody. Defendant was awarded parenting
time, with no indication that the visits would be supervised.
Plaintiff first argues that the trial court committed clear legal error when it failed to make
the necessary findings of fact by considering the best interest factors set forth in MCL 722.23.
The standard of review in child custody cases is set forth in MCL 722.28:
To expedite the resolution of a child custody dispute by prompt and final
adjudication, 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 the
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.
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We agree with plaintiff that the trial court committed clear legal error when it failed to
state on the record its reasons for granting defendant’s request for joint legal custody and failed
to consider whether a joint legal custody award was in the best interests of the child applying the
statutory factors set forth in MCL 722.23. MCL 722.26a(1) provides:
In custody disputes between parents, the parents shall be advised of joint
custody. At the request of either parent, the court shall consider an award of joint
custody, and shall state on the record the reasons for granting or denying a
request. In other cases joint custody may be considered by the court. The court
shall determine whether joint custody is in the best interest of the child by
considering the following factors:
(a) The factors enumerated in section 3 [MCL 722.23].
(b) Whether the parents will be able to cooperate and generally agree
concerning important decisions affecting the welfare of the child.
Here, defendant requested joint legal custody, thus, the trial court was required to
consider whether joint custody was in the best interests of the child applying the statutory factors
set forth in MCL 722.23 and state its reasons on the record for granting that request under MCL
722.26a(1). Mixon v Mixon, 237 Mich App 159, 163; 602 NW2d 406 (1999). Because the trial
court failed to state on the record its reasons for granting defendant’s request for joint legal
custody and failed to review the statutory best interest factors, the trial court committed clear
legal error. Id. at 162.
We reject defendant’s contention that the parties either stipulated to joint legal custody or
waived any objections when the trial court awarded joint legal custody without considering the
best interest factors and without stating its reasons on the record The trial court cannot accept
the stipulation of the parents, but must independently determine what is in the best interests of
the child. Phillips v Jordan, 241 Mich App 17, 21; 614 NW2d 183 (2000). Moreover, the
record does not factually support defendant’s argument because the parties’ pleadings and trial
testimony indicate that they never agreed to joint legal custody. Further, there was no waiver of
the issue because “[n]o exception need be taken to a finding or decision” of the trial court in an
action tried without a jury. MCR 2.517(A)(7).
Additionally, we find that the error was not harmless. When a trial court considers
custody issues without regard to the factors enumerated in MCL 722.23 and fails to make
reviewable factual findings, the proper remedy is to remand for a new child custody hearing.
Foskett v Foskett, 247 Mich App 1, 12; ___ NW2d ___ (2001). On remand, the trial court
should consider all relevant up-to-date information. Fletcher v Fletcher, 447 Mich 871, 889; 526
NW2d 889 (1994). In accordance with MCL 722.26a(1), the trial court shall determine whether
joint legal custody is in the best interest of the child by considering the best interest factors under
MCL 722.23, state those findings on the record or in a written opinion, and state its final decision
granting or denying defendant’s request for joint legal custody on the record.
We need not address plaintiff’s second claim of error that the trial court abused its
discretion when it awarded defendant joint legal custody and unsupervised visitations, because
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the trial court did not make the necessary factual findings considering the best interest factors.
This issue may be reargued following remand.
Accordingly, we reverse and remand for the trial court to hold a new child custody
hearing regarding the issues of joint legal custody and unsupervised visitation. The hearing shall
be held within twenty-eight days of the issuance of this opinion. The trial court shall make its
findings on the record or by written opinion within seven days of the hearing. The transcript of
the proceedings on remand shall be filed with the Clerk of the Court of Appeals within twentyone days of the hearing. Plaintiff must file with the Clerk of this Court all orders or opinions
entered on remand within fourteen days after entry. Plaintiff’s supplemental brief must be filed
with this Court within twenty-one days of the filing of the transcript or the trial court’s decision,
whichever is later. Defendant shall file his supplemental brief within fourteen days after
plaintiff’s supplemental brief is filed. No further extensions will be granted. We retain
jurisdiction.
/s/ Hilda R. Gage
/s/ Kathleen Jansen
/s/ Peter D. O’Connell
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