COA Vacates and Remands Trial Court’s Order & The $15K Parenting-Time Bond

The trial court committed clear legal error in Butters v Butters (Docket No. 359655) by failing to hold a live hearing where the plaintiff would have the right to present evidence, subject to certain restrictions permitted by the court rules. The trial court vacated the December 7, 2021 order denying plaintiff’s objections and affirming the referee’s recommended order, and the Court of Appeals remanded in a published opinion for the trial court to hold a de novo hearing under MCL 552.507 and MCR 3.215.

Facts

The parties were married in August 2009 and divorced in December 2015. Upon dissolution of divorce, the judgment gave the parties joint legal custody of their two children, with plaintiff having primary physical custody. In January 2021, the defendant moved for a change in custody, seeking primary physical custody and sole legal custody. After an evidentiary hearing, the presiding referee’s opinion and order granted defendant’s motion. In his conclusion, the referee found the children’s established custodial environment was with defendant and using the threshold of preponderance of the evidence, a change of custody was in the best interests of the children. Additionally, the referee recommended the plaintiff be awarded supervised parenting time and required her to post a $15,000 bond. See MCL 722.27a(9)(g).

Plaintiff filed a timely objection to the referee’s recommendations and asked for a de novo hearing to which the trial court initially denied based on formatting violations. Plaintiff’s documents violated the court rules governing font size, body text spacing, and margins. See MCR 1.109(D)(1); MCR 2.119(A)(2)(c). Additionally, plaintiff’s attachments violated the requirement that transcripts, “must contain only a single transcript page per document page, not multiple pages combined on a single document page.” MCR 1.109(D)(1)(a). In addition to the formatting issues, the trial court denied plaintiff’s objections to the referee’s recommendation and order because it found none of the plaintiff’s arguments persuasive and none of the referee’s findings of facts or conclusions of law incorrect. Based on review of the “voluminous transcripts, evidence and filings on the matter,” the trial court determined plaintiff “failed to show any evidence or witnesses that were unavailable during the four-day hearing;” therefore, there was “no good cause to allow any additional testimony or evidence in the record.” The trial court denied plaintiff’s request for a de novo hearing and affirmed the referee’s recommended order. 

Key Appellate Rulings

1. Plaintiff’s formatting violations were not a proper basis for denying plaintiff’s objection and request for a de novo hearing.

Plaintiff’s objections were accepted and filed on October 4, 2021, and a hearing on the objection was scheduled for October 15. Even after the October 15 hearing was not held, and the register of actions indicated that the matter was “to be reviewed,” there was no recorded evidence that plaintiff’s objection was in danger of being denied on the basis that it was nonconforming to court rule. Accordingly, plaintiff was justified in believing that the trial court had accepted her timely filed objection and request for a de novo hearing and that the trial court would decide the matter on the merits.

The trial court relied on MCR 1.109(D)(6) which allows the court’s clerk to reject a filing based on formatting errors. That did not occur in this case, and the rule does not give additional authority to the court to reject a party’s objections based on formatting errors after the clerk has already accepted the document for filing.

MCL 552.507(4). The court shall hold a de novo hearing on any matter that has been the subject of a referee hearing, upon the written request of either party or upon motion of the court....

The trial court may ultimately arrive at a new decision “based entirely on the record of a previous hearing, including any memoranda, recommendations, or proposed orders by the referee,” MCL 552.507(6)(a), but the court must allow the parties to present live evidence, subject to the restrictions permitted by MCR 3.215(F)(2). MCL 552.507(5)(b); see Dumm v Brodbeck, 276 Mich App 460, 465; 740 NW2d 751 (2007) (indicating that the trial court is permitted to consider the Friend of the Court report or recommendation “if it also allows the parties to present live evidence”).

2. 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) (cleaned up).

The Court of Appeals cited that before making a custody determination, the trial court must determine whether an established custodial environment exists with one or both parents. Kessler v Kessler, 295 Mich App 54, 61; 811 NW2d 39 (2011).

The trial court incorrectly affirmed the referee’s recommendation which applied the preponderance of the evidence standard to a situation where an established custodial relationship existed with both parents, not one parent. On remand, the trial court must determine whether defendant can establish that modification of the previous custody order is in the children’s best interests by applying the clear and convincing evidence standard. Additionally, the court “should consider up-to-date information, including the children’s current and reasonable preferences,” and must also bear in mind our Supreme Court’s admonition that events that have taken place during the appellate process do not alter the clear and convincing standard of proof. Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994).

3. After the evidentiary hearing concluded, the referee ordered plaintiff to post a $15,000 bond with the court “to assure future compliance with Court Orders.” MCL 722.27a(9)(g) provides that a parenting time order “may contain any reasonable terms or conditions that facilitate the orderly and meaningful exercise of parenting time,” including “that a party post a bond to assure compliance with a parenting time order.”

The Court of Appeals held that to protect the rights of parents and their children, a “reasonable” term or condition intended to facilitate parenting time, including a bond, must consider individual circumstances, including a parent’s ability to meet the bond requirements. This analysis should include a determination of whether a parent’s inability or difficulty in posting a bond would preclude a parent’s ability to engage in parenting time. In this case, the referee’s bond was not accompanied by any calculation of plaintiff’s income, the reasons supporting a bond as opposed to other methods to ensure compliance with court orders, or plaintiff’s ability to post a $15,000 bond. The Court of Appeals vacated the $15,000 parenting-time bond to reevaluate under a proper analysis whether it is appropriate or not.