If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

SHARESE SHANNON MATHIS,

Plaintiff-Appellant,

UNPUBLISHED

April 13, 2023

v No. 363661

Lenawee Circuit Court

CARL MATHIS, JR., Family Division

LC No. 2021-048285-DM

Defendant-Appellee.

Before: CAVANAGH, P.J., and BOONSTRA and RIORDAN, JJ.

PER CURIAM.

Plaintiff appeals as of right an order requiring her to pay child support to defendant, but 

her claims of error relate to the trial court’s judgment of divorce entered several weeks earlier. 

The trial court awarded the parties joint legal and physical custody of their daughter, KRM, the 

majority of school-year parenting time to defendant, and the majority of summer parenting time to 

plaintiff. We agree that the trial court committed clear legal error by failing to determine KRM’s 

established custodial environment before analyzing the statutory best-interest factors, and that this 

error alone requires remand for further proceedings.

I. BACKGROUND

Plaintiff was raised in Michigan and defendant was raised in Arkansas, but they met and 

courted in Tennessee. The parties married in 2013, moved to Michigan in 2014, and KRM was 

born in 2018. In early 2021, plaintiff accepted employment in Albion, Michigan, initiated this 

action, and relocated with KRM to Albion. Defendant remained in the marital home in Adrian, 

Michigan for approximately two months before moving to Fayetteville, Arkansas for work 

purposes. Defendant had been exercising approximately equal parenting time, but the distance 

occasioned by his relocation drastically limited the feasibility of in-person parenting time.

Following a bench trial at which the parties were the only witnesses, the trial court 

addressed the best-interest factors outlined in MCL 722.23 on the record, finding that many of the 

factors favored the parties equally, while others were inapplicable. It also commented regarding 

several factors, without articulating clear conclusions. The court concluded that its decision was 

a difficult one, as either party could reasonably be awarded school-year parenting time, but it 
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appeared that the schools in Fayetteville were preferable to the school system in Albion. The trial 

court therefore awarded defendant the majority of school-year parenting time and plaintiff the 

majority of summer parenting time.

II. ESTABLISHED CUSTODIAL ENVIRONMENT

Plaintiff first argues on appeal that the trial court erred by failing to make findings 

regarding KRM’s established custodial environment. We agree.

“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.’ ” Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010), quoting MCL 722.28. “A 

trial court commits legal error when it incorrectly chooses, interprets or applies the law.” Merecki

v Merecki, 336 Mich App 639, 645; 971 NW2d 659 (2021) (quotation marks and citation omitted).

“The custodial environment of a child is established if over an appreciable time the child 

naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, 

and parental comfort.” MCL 722.27(1)(c). “The age of the child, the physical environment, and 

the inclination of the custodian and the child as to permanency of the relationship shall also be 

considered.” Id. In other words, “[a]n established custodial environment is one of significant 

duration in which a parent provides care, discipline, love, guidance, and attention that is 

appropriate to the age and individual needs of the child.” Berger v Berger, 277 Mich App 700,

706; 747 NW2d 336 (2008). “It is both a physical and a psychological environment that fosters a 

relationship between custodian and child and is marked by security, stability, and permanence.” 

Id.

In pertinent part, MCL 722.27(1)(c) provides, “The court shall not . . . 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.” The plain language of the foregoing 

provision requires the 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; 811 NW2d 39 (2011). This determination is crucial because it 

controls the applicable burden of proof. Bofysil v Bofysil, 332 Mich App 232, 243; 956 NW2d 544 

(2020). As previously explained by this Court,

If a proposed change would modify the child’s established custodial environment, 

the proponent must demonstrate by clear and convincing evidence that the proposed 

change is in the child’s best interests. Pierron v Pierron, 486 Mich 81, 92; 782 

NW2d 480 (2010). If the proposed change would not modify the established 

custodial environment, the proponent need only demonstrate by a preponderance 

of the evidence that the proposed change is in the child’s best interests. Id. at 92-

93. If a child has an established custodial environment with both parents, neither 

parent’s custody may be disrupted absent clear and convincing evidence that the 

change is in the child’s best interests. Powery v Wells, 278 Mich App 526, 529;

752 NW2d 47 (2008). [Bofysil, 332 Mich App at 243.]
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It is undisputed that the trial court did not make this preliminary determination, which 

constitutes clear legal error. See Kessler, 295 Mich App at 61-62. In Kessler, this Court held that 

the error was not harmless because the established custodial environment controlled the burden of 

proof and, given the limitations on appellate review of custody orders, it should be decided by the 

trial court. Id. at 62. Plaintiff urges this Court to reach the same conclusion.

Defendant, on the other hand, directs our attention to caselaw stating that remand on the 

basis of a trial court’s failure to determine the child’s established custodial environment is 

unnecessary when “there is sufficient information in the record for this Court to make its own 

determination of this issue by de novo review.” Jack v Jack, 239 Mich App 668, 670; 610 NW2d 

231 (2000), quoting Thames v Thames, 191 Mich App 299, 304; 477 NW2d 496 (1991) (quotation 

marks omitted). In Brausch v Brausch, 283 Mich App 339, 356 n 7; 770 NW2d 77 (2009), for 

instance, this Court found the record sufficient to conclude that the child’s established custodial 

environment existed with the plaintiff, as she was awarded sole legal and physical custody of the 

child when the parties divorced, the child had always resided with the plaintiff, and the child 

naturally looked to the plaintiff for guidance, discipline, the necessities of life, and parental 

comfort.

We decline defendant’s invitation to decide KRM’s established custodial environment for 

the first time on appeal. The evidence did not support an obvious factual finding regarding this 

issue, and this case is not well suited to a post hoc determination of what should have been an 

intense factual inquiry conducted by the trial court in the first instance. We therefore remand to 

the trial court for further proceedings.

As this Court has instructed in other cases involving the same procedural error:

On remand, the trial court must determine whether an established custodial 

environment existed with plaintiff, defendant, or both parties before it determines 

the custody arrangement that serves the best interests of the children. In this case, 

both parents seek primary physical custody. Accordingly, if the trial court 

determines that an established custodial environment exists with either plaintiff or 

defendant or both parties, the party seeking to change that established custodial 

environment must demonstrate that the change is in the best interests of the children 

by clear and convincing evidence. After making its determination regarding the 

existence of an established custodial environment and evaluating the best-interest 

factors, the trial court shall determine whether either party has met its burden and 

fashion its award of custody accordingly. On remand, the trial court “should 

consider up-to-date information” and “any other changes in circumstances arising 

since the trial court’s original custody order.” [Kessler, 295 Mich App at 62-63 

(citation omitted).]

III. BEST-INTEREST FACTORS

Plaintiff also argues that the trial court erred by failing to articulate specific conclusions 

regarding several best-interest factors and that its findings regarding several factors were against 

the great weight of the evidence. We agree, in part, and disagree, in part.
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We review factual findings in custody matters under the great-weight-of-the-evidence

standard and must affirm such findings unless the evidence clearly preponderances in the opposite 

direction. Bofysil, 332 Mich App at 242. Underlying questions of law are reviewed for clear legal 

error. MCL 722.28. “A trial court commits legal error when it incorrectly chooses, interprets or 

applies the law.” Merecki, 336 Mich App at 645 (quotation marks and citation omitted).

A. SUFFICIENCY OF FINDINGS

“In child custody cases, 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). Although the trial court is not obligated to explicitly address all 

evidence and arguments, it must create a record sufficient to facilitate appellate review. MacIntyre 

v MacIntyre (On Remand), 267 Mich App 449, 452; 705 NW2d 144 (2005).

Plaintiff challenges the sufficiency of the trial court’s findings regarding factors (d), (g), 

(h), (j), and (k). The court commented regarding each of these factors, but did not state whether

each factor favored plaintiff, defendant, both, or neither. This Court encountered a similar situation 

in Sinicropi v Mazurek, 273 Mich App 149, 180-182; 729 NW2d 256 (2006), and found no error 

requiring reversal because it could infer the trial court’s findings regarding the challenged factors 

from its comments regarding the subjects of those factors. The same cannot be said in this case, 

at least with respect to factors (d), (g), and (j).

Concerning factor (d) (length of time the child has lived in a stable, satisfactory 

environment and desirability of maintaining continuity), MCL 722.23(d), the court indicated that 

the parties intended to eventually move to Arkansas when they married, but there was a breakdown 

in the marriage, defendant took employment in Arkansas as he previously planned, and plaintiff

chose to remain in Michigan. The trial court’s comment, without further elaboration, has little 

relevance to this factor. We are unable to confidently infer whether the court found factor (d) 

favored defendant because he carried through with the parties’ old plan or favored the parties 

equally because they parted ways after the breakdown of their marriage.

In its discussion of factor (g) (mental and physical health of the parties), MCL 722.23(g), 

the trial court noted that plaintiff’s lupus affected her ability to transport KRM to and from 

parenting-time exchanges, but plaintiff had “worked to get that under control.” Without further 

elaboration, it is unclear whether the trial court found factor (g) favored defendant because of 

plaintiff’s lupus or whether it favored the parties equally because plaintiff was able to resolve the 

travel limitations caused by her lupus symptoms.

With respect to factor (j) (willingness and ability to foster parent-child relationship with 

other parent), MCL 722.23(j), the trial court said, “[Plaintiff] stated she does not talk to 

[defendant], and from [defendant’s] testimony, so there is a breakdown of that relationship and we 

did order AppClose for that.” Again, the trial court’s conclusion regarding this factor is unclear. 

The court may have believed that plaintiff’s hesitancy to speak with defendant weighed against 

her, but it is equally plausible that it felt the implementation of communication through AppClose 
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made plaintiff’s previous reluctance insignificant. The vague reference to defendant’s testimony 

offers no guidance or clarification on this point.

Conversely, plaintiff’s challenge to the sufficiency of the trial court’s findings lacks merit 

as it relates to best-interest factors (h) and (k). Concerning factor (h) (child’s home, school, and 

community record), MCL 722.23(h), the trial court noted that KRM was in child care, but not yet 

old enough for school. Plaintiff’s attorney asked the court to clarify its findings regarding this 

factor, and the trial court responded that it did not consider factor (h) relevant since KRM was not 

in school. In other words, plaintiff’s contention that the trial court did not reach an explicit 

conclusion regarding this issue is belied by the record. As to factor (k) (domestic violence), MCL 

722.23(k), the trial court cited plaintiff’s previous domestic violence conviction and did not 

comment further. We infer that plaintiff’s conviction was the only matter the trial court deemed 

relevant to this factor and this factor was, therefore, clearly found to favor defendant. Even so, the 

trial court’s findings and conclusions regarding factors (d), (g), and (j) were insufficient to facilitate 

appellate review.

B. GREAT WEIGHT OF THE EVIDENCE

Factor (c) considers 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.” MCL 722.23(c). The trial 

court found that factor (c) favored the parties equally, without providing any explanation. Plaintiff

argues that this factor should have favored her because she works in close proximity to KRM’s 

daycare, has local family support for childcare needs, and can continue KRM’s medical and dental 

care with KRM’s longstanding treaters. We disagree.

The evidence clearly reflected that defendant was equally able and willing to provide for 

KRM. See Demski v Petlick, 309 Mich App 404, 448; 873 NW2d 596 (2015) (rejecting challenge 

to finding of equal weight under factor (c) when both parties were gainfully employed and 

possessed adequate means to provide support). Defendant earned a respectable salary and planned 

to remain in his position long term. Despite having had a number of jobs since the parties’

marriage, defendant had a long history of consistent employment in some capacity. The evidence 

raised no question as to defendant’s ability to provide for KRM’s material needs. Defendant may 

not have the same network of local family support, but his job permitted flexible remote work 

when necessary, thereby enabling him to personally care for KRM if she could not attend daycare. 

With respect to medical care, defendant had the means to provide health insurance for KRM

through his employer, and wished to do so because it would be more cost-effective than the 

insurance provided through plaintiff’s employer. Defendant kept himself apprised of KRM’s 

medical care through a patient portal after relocating to Arkansas and intended to take KRM to a 

pediatric clinic near his primary care physician when she was in his custody. There was simply 

no suggestion that defendant was unable or unwilling to provide appropriate medical care.

Factor (d) considers the “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 

referenced the parties’ intention early in their relationship to reside in Arkansas and the breakdown 

of the parties’ marriage, as well as defendant’s return to Arkansas as planned, while plaintiff

remained in Michigan. As explained earlier, we are unable to infer what significance the trial court 
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attached to these facts. We note, however, that similar facts were discussed under factor (d) in 

Kessler, 295 Mich App at 65. There, the plaintiff intended to relocate to Florida and had specific 

plans for the children’s future residence and schooling. Id. The defendant intended to remain in 

Michigan, but was unsure if he could afford to remain in the marital home or continue the 

children’s tuition. Id. Despite these uncertainties, the trial court found that factor (d) favored the 

defendant, and this Court agreed. Id. Because the children had never lived in Florida, this Court 

reasoned that there was no continuity to maintain there, such that the desirability of the 

environment in Florida was irrelevant to MCL 722.23(d). Id. This Court acknowledged that the 

children’s environment in Michigan would change following the divorce, but Michigan was still 

the only place the children knew and the only place where they had “family, friends, school, 

church, a godmother, a daycare provider, and others . . . .” Id. at 65-66.

KRM was born in Michigan and resided with the parties in Adrian until March or April 

2021, when she moved with plaintiff to Albion. KRM was still able to have regular interactions 

with her maternal relatives after moving. In contrast, KRM had only three one-week visits with 

defendant in Arkansas between the commencement of this action and the trial. Although KRM

had family in Arkansas, the record suggests that she did not spend much time with them before, 

while she had a strong relationship and regular interaction with maternal relatives. Although 

KRM’s time in Albion, specifically, was limited, her ties to Michigan were evident. To the extent 

that the trial court did not find that factor (d) favored plaintiff, its finding was against the great 

weight of the evidence. Id.

Factor (e) considers the “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 

because both plaintiff and defendant had relocated from the area they were previously raising 

KRM. Plaintiff argues that the trial court erred by failing to consider KRM’s proximity to extended 

family in plaintiff’s care, while defendant’s closest relatives lived at least four hours away from 

him. We disagree. The focus of factor (e) should be on the permanence of the family unit in each 

home. Brown v Brown, 332 Mich App 1, 21; 955 NW2d 515 (2020). KRM’s relationship with 

family members who did not reside with either plaintiff or defendant is not relevant to this factor.

Factor (f) considers the “moral fitness of the parties involved,” MCL 722.23(f), and more 

specifically, the parties’ moral fitness as parents, Kubicki v Sharpe, 306 Mich App 525, 544; 858 

NW2d 57 (2014). See also Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994) (“[T]he 

question under factor f is not ‘who is the morally superior adult;’ the question concerns the parties’

relative fitness to provide for their child, given the moral disposition of each party as demonstrated 

by individual conduct.”). The trial court indicated that both parties were morally fit. Plaintiff

contends that the trial court erred by failing to conclude that factor (f) favored her in light of the 

evidence regarding defendant’s drinking. We disagree. Although plaintiff repeatedly referred to 

defendant’s alcohol consumption during her testimony, there was no indication that it affected his 

parenting. Rather, both parties testified that defendant primarily drank after KRM went to bed.

In support of her arguments regarding factor (f), plaintiff cites her motion to suspend 

defendant’s parenting time, which she filed after both parties testified, but before the trial court 

reached its ruling. In pertinent part, the motion alleged that defendant was intoxicated while KRM

was in his care in Arkansas. Defendant correctly notes, however, that these allegations were not 

presented at the trial. Allegations in court filings are not evidence, In re Schroeder Estate, 335 
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Mich App 107, 119; 966 NW2d 209 (2020), and therefore, cannot support a conclusion that the 

trial court’s findings were against the great weight of the evidence, regardless of whether the 

motion is part of the appellate record under MCR 7.210.

Factor (k) considers “[d]omestic violence, regardless of whether the violence was directed 

against or witnessed by the child.” MCL 722.23(k). The trial court noted only that plaintiff had a 

conviction for domestic violence, suggesting that it found that this factor favored defendant. 

Plaintiff argues that the trial court erred in this regard because the circumstances surrounding her 

domestic violence conviction demonstrated defendant’s controlling and manipulative behavior.1 

Plaintiff’s position lacks merit because MCL 722.23(k) refers to domestic violence, not controlling 

or manipulative behavior. In Brown, 332 Mich App at 11-12, this Court held that domestic 

violence for purposes of MCL 722.23(k) included domestic violence as defined in the domestic 

violence prevention and treatment act, MCL 400.1501 et seq. The definition of domestic violence 

in MCL 400.1501(d) includes behavior that would not inflict physical harm, such as “[p]lacing a 

family or household member in fear of physical or mental harm,” and “engaging in activity toward 

a family or household member that would cause a reasonable person to feel terrorized, frightened, 

intimidated, threatened, harassed, or molested.” Brown, 332 Mich App at 11. Even if defendant’s 

behavior surrounding the domestic violence incident caused plaintiff to feel manipulated or 

controlled, it did not constitute domestic violence as described in Brown.

Plaintiff does not dispute that she was convicted of domestic violence in 2014 after she 

pushed and scratched defendant when he tried to prevent her from leaving in his vehicle. In 

contrast, there was no evidence of defendant engaging in domestic violence. To the extent the trial 

court found factor (k) favored defendant, it did not err by doing so.

IV. CONCLUSION

We vacate the trial court’s judgment of divorce in part, as it relates to the trial court’s award 

of physical custody and parenting time, and remand for further proceedings consistent with this 

opinion. We do not retain jurisdiction.

/s/ Mark J. Cavanagh

/s/ Mark T. Boonstra

/s/ Michael J. Riordan

 

1 Plaintiff also cites the allegations of abuse toward KRM and defendant’s former girlfriend 

outlined in her motion to suspend his parenting time. As noted above, the allegations in plaintiff’s 

motion do not constitute evidence and will not be considered in this Court’s review of the trial 

court’s best-interest findings.