Appeals Court: Father Did Not ‘Forfeit’ His Objections To FOC Recommendations
Without first conducting a new hearing, the trial court in this custody case improperly 1) held that the plaintiff forfeited his objections to the Friend of the Court referee’s recommendations and 2) went ahead and adopted the referee’s recommendations, the Michigan Court of Appeals has ruled.
In McGregor v Jones (Docket No. 361447), the plaintiff-father filed motions for sole custody of his child and for change of domicile with the Shiawassee County Circuit Court. A Friend of the Court (FOC) hearing was held and the referee recommended the plaintiff’s motions be denied. The plaintiff filed objections to the referee’s recommendations.
Several days before the trial court’s scheduled de novo (new) hearing, the trial court had not received a transcript of the FOC hearing, which the plaintiff was supposed to provide. The trial court, despite a proposed stipulation to adjourn the de novo hearing, then sua sponte (on its own motion) issued a decision overruling the plaintiff’s objections to the referee’s recommendations. The trial court also issued an order adopting the referee’s recommendations. According to the trial court, although the plaintiff had timely filed his objections, he did not “order the transcript within the objection period.” As a result, the trial court ruled the plaintiff “did not perfect the objection within the period required by the court rule” and “forfeited his objection.”
The Court of Appeals reversed and remanded the case for a de novo hearing.
“The trial court interpreted MCR 3.215(F)(2)(d) as authorizing it to deem a party’s right to object to the FOC referee’s recommendations and receive a de novo hearing forfeited if the party did not submit a transcript of the referee proceedings prior to that hearing,” the Court of Appeals said. “We reject this broad interpretation.”
Because the plaintiff timely filed his objections to the referee’s recommendations, he was “entitled to have a judicial hearing before the trial court regarding those objections, and the trial court exceeded its authority by declaring this right forfeited,” the Court of Appeals said.
Judges Mark T. Boonstra, Elizabeth L. Gleicher and Thomas C. Cameron were on the panel that issued the opinion. The opinion was approved for publication after its initial release.
Additional Background
At the time of the proceedings, the plaintiff and the defendant resided in Tennessee and shared custody of their minor child, AM. In September 2021, the plaintiff filed two motions with the Shiawassee County trial court: one seeking to change AM’s domicile back to Michigan and one to obtain sole physical custody.
The matter was referred to the FOC and a hearing was held. On February 16, 2022, the FOC referee recommended the plaintiff’s motions be denied. The parties were then given notice of their right to object to the referee’s recommendations and to receive a de novo hearing before the trial court. The notice informed the parties that: 1) they had 21 days to file objections, 2) the hearing would be conducted within 21 days after the objections were filed and 3) the objecting party (the plaintiff in this case) was responsible for obtaining a transcript of the referee hearing and submitting it to the trial court prior to the hearing.
On March 7, 2022, an assistant for the plaintiff’s attorney e-mailed the court recorder, indicating that she wanted to order a transcript of the referee hearing. The next day, the plaintiff filed his objections to the FOC referee’s recommendations. The court recorder then told the attorney’s assistant that the transcript would be prepared within 28 days after the deposit was paid. When the court recorder received the deposit, she indicated the transcript would be provided by April 25, 2022. In the meantime, the trial court scheduled a de novo hearing for April 5, 2022.
On March 23, 2022, the parties submitted a stipulated order to adjourn the de novo hearing. Despite this, on March 30, 2022, the trial court - having not yet received a transcript of the referee hearing - issued a sua sponte opinion overruling the plaintiff’s objections. The trial court also issued an order adopting the referee’s recommendations. The trial court reasoned that, even though the plaintiff timely filed his objections, because he did not order the transcript within the objection period, he did not “perfect the objection” within the period required by MCR 3.215(F) and “forfeited his objection.”
The plaintiff filed a motion for reconsideration. In doing so, he attached the e-mail exchange with the court recorder, where she had acknowledged that she received the plaintiff’s deposit and advised that the transcripts would be ready by April 25, 2022. The trial court denied the plaintiff’s motion.
The plaintiff appealed.
No Court Rule Violation
On appeal, the plaintiff argued the trial court erroneously held that he had forfeited his objection to the FOC referee’s recommendations and improperly adopted the recommendations without conducting a de novo hearing.
“We agree,” the Court of Appeals said, noting the record reflected that the plaintiff contacted the court recorder to order the transcript within the objection period and paid the deposit.
The Court of Appeals explained that MCR 3.215(E)(4) says a party is entitled to a de novo hearing to review a referee’s recommendations if the party’s objections are filed within 21 days. “It is undisputed that plaintiff complied with this requirement; however, the trial court, in its notice of the parties’ rights, imposed an additional requirement that the objecting party request a copy of the transcript of the referee hearing from the court recorder and submit the transcript to the court prior to the de novo hearing. There is no such requirement in MCR 3.215.”
Further, in its order adopting the referee’s recommendations, the trial court cited MCR 3.215(F) in support of its authority to impose this requirement, the Court of Appeals observed. MCR 3.215(F) says, in relevant part:
The judicial hearing must be held within 21 days after the written objection is filed, unless the time is extended by the court for good cause.
To the extent allowed by law, the court may conduct the judicial hearing by review of the record of the referee hearing, but the court must allow the parties to present live evidence at the judicial hearing. The court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which no objection was filed;
(b) determine that the referee’s finding was conclusive as to a fact to which no objection was filed;
(c) prohibit a party from introducing new evidence or calling new witnesses unless there is an adequate showing that the evidence was not available at the referee hearing;
(d) impose any other reasonable restrictions and conditions to conserve the resources of the parties and the court.
Here, the trial court interpreted MCR 3.215(F)(2)(d) “as authorizing it to deem a party’s right to object to the FOC referee’s recommendations and receive a de novo hearing forfeited if the party did not submit a transcript of the referee proceedings prior to that hearing,” the Court of Appeals said, rejecting such a “broad” interpretation. “Not only does no such language appear in the court rule, but MCR 3.215(F)(2) explicitly requires the trial court to permit the parties to present ‘live evidence’ at the de novo hearing; in other words, the trial court is not permitted to decide the issue on the basis of the record alone, without providing the parties some opportunity to supplement that record at the hearing if they wish to do so.”
In addition, the structure of MCR 3.215(F)(2)(d) “suggests that the ‘reasonable restrictions and conditions’ to which it refers are restrictions and conditions placed on the evidence that may be presented at the de novo hearing to which the party is entitled,” the Court of Appeals wrote. “MCR 3.215(F)(2) explicitly governs the conduct of judicial hearings, and MCR 3.215(F)(2)(d) allows the trial court to ‘impose any other reasonable restrictions and conditions’ (emphasis added), which implies that the restrictions authorized by this subrules would be of the same kind as those found in MCR 3.215(F)(2)(a) through (c). Those subrules permit the trial court to narrow the disputed issues to those for which an objection was filed, and otherwise control the types of evidence to admitted at the hearing in the interest of judicial economy; none of them suggest that a party could be sanctioned in such a drastic manner for failing to comply with a condition imposed by the trial court.”
According to the Court of Appeals, “Nothing in the language of the court rule indicates that it authorizes the court to impose additional requirements a party must fulfill before being entitled to a de novo hearing, and we will not read such language into the rule.” Therefore, because the plaintiff timely filed his objections to the referee’s recommendations, he was entitled to a hearing before the trial court and the trial court “exceeded its authority by declaring this right forfeited.”
