A trial court is not prohibited by the court rules from giving interim effect to a referee’s recommended order that changes custody pending a judicial hearing on an objection to the recommendation, the Michigan Court of Appeals has ruled.

In Stawski v Stawski (Docket No. 353277), the trial court upheld, on an interim basis, the Friend of the Court (FOC) referee’s recommended order granting the plaintiff mother’s motion for a change of custody with respect to one of the parties’ three children. The defendant father then filed a motion for a writ of mandamus an objection to the referee’s recommended order.

The Grand Traverse County Circuit Court denied the defendant’s motion for a writ of mandamus. It also affirmed the interim effect of the referee’s recommended order on custody and parenting time.

The defendant father appealed, arguing that MCR 3.215(G)(3) precluded giving interim effect to a referee’s recommended order that changes the custody of a child.

The Court of Appeals disagreed with the defendant and affirmed the trial court’s ruling.

“In this case, the trial court, by executing the referee’s recommended order to change custody on February 12, 2020, properly exercised its authority under MCR 3.215(G)(3) to give the recommended order interim effect,” the Court of Appeals wrote. “Therefore, the trial court did not have a clear legal duty to refrain from giving interim effect to the referee’s recommended order changing custody, and thus defendant was not entitled to the requested writ of mandamus.”

Judges James Robert Redford, Jane E. Markey and Mark T. Boonstra were on the panel that issued the unpublished opinion.

Background

The parties were married for nearly 17 years and have three minor children. The plaintiff filed a complaint for divorce in 2017. This appeal involved custody and parenting-time issues concerning only their middle child, RJS. During the divorce proceedings, the trial court entered a temporary custody and parenting-time order giving the parties joint legal and physical custody of all the children and parenting time. This arrangement was incorporated into the divorce judgment.

However, RJS was unwilling to stay with the defendant. Repeated attempts to transfer RJS to the defendant’s care pursuant to the divorce judgment were unsuccessful. The parties entered into an agreement on June 20, 2018, to foster reunification between RJS and the defendant. The parties chose a reunification therapist and agreed to dismiss all pending motions and filings, with prejudice.

Unfortunately, reunification efforts did not go as planned. RJS continued to be frightened of the defendant and resisted visiting him. Throughout 2018, 2019 and into 2020, there were a myriad of FOC, referee and court filings and proceedings connected to custody and parenting-time issues regarding RJS. They were primarily initiated by the defendant and were “dizzying in number and effect.”

The assigned FOC referee ultimately held hearings to resolve the defendant’s continuing objections to the lack of parenting time and to provide a recommendation regarding a change of custody motion the plaintiff had filed, in which she sought sole custody of RJS because of the continued problems between RJS and the defendant. The referee evaluated the statutory best-interest factors under MCL 722.23 and recommended the plaintiff be awarded sole legal and primary physical custody of RJS. The referee also recommended the defendant’s parenting time be suspended until further order of the court, while providing for regular reviews by the referee to determine when and whether parenting time should resume, and under what circumstances.

The referee further recommended the trial court dismiss any pending FOC complaints about missed parenting time and other matters. The referee executed the recommended order on February 4, 2020, and the trial court signed it on February 12, 2020. The recommended order indicated that it would take immediate effect on an interim basis pending any de novo judicial hearing relative to objections.

The defendant filed a motion for writ of mandamus and an objection to the referee’s recommended order. The trial court denied the defendant’s motion and affirmed the interim effect of the referee’s recommended order on custody and parenting time.

The defendant appealed.

Court Rule Allows

On appeal, defendant argued, among other things, that the trial court had a “clear legal duty” to refrain from giving interim effect to the referee’s recommended order because it involved a change of custody.

“We disagree with defendant’s position that MCR 3.215(G)(3) prohibits a trial court from giving interim effect to a referee’s recommended order that changes an established custodial arrangement pending a judicial hearing on an objection to the recommendation,” the Court of Appeals said. “Defendant’s argument relies on an administrative order, family court plan, and appointment language concerning the involved referee, but ultimately it is anchored by and premised on the construction of MCR 3.215(G)(3). Accordingly, we shall simply go straight to addressing the interpretation of MCR 3.215(G)(3).”

MCR 3.215(G) provides, in relevant part, as follows:

(G) Interim Effect for Referee’s Recommendation for an Order.

• Except as limited by subrules (G)(2) and (G)(3), the court may, by an administrative order or by an order in the case, provide that the referee’s recommended order will take effect on an interim basis pending a judicial hearing. The court must provide notice that the referee’s recommended order will be an interim order by including that notice under a separate heading in the referee’s recommended order, or by an order adopting the referee’s recommended order as an interim order.

• The court may not give interim effect to a referee’s recommendation for any of the following orders:

(a) An order for incarceration;

(b) An order for forfeiture of any property;

(c) An order imposing costs, fines, or other sanctions.

• The court may not, by administrative order, give interim effect to a referee’s recommendation for the following types of orders:

(a) An order under subrule (G)(2);

(b) An order that changes a child’s custody;

(c) An order that changes a child’s domicile;

(d) An order that would render subsequent judicial consideration of the matter moot.

The plain language of the court rule, the Court of Appeals explained, did not support the defendant’s argument that MCR 3.215(G)(3) precludes giving interim effect to a referee’s recommended order that changes custody. “Although the court rule does not permit giving interim effect to a referee’s recommendation with respect to a change in custody through an administrative order, there exists no prohibition against ‘an order in the case’ being issued by the court for such a purpose. MCR 3.215(G) clearly contemplates two mechanisms for giving interim effect to a referee’s recommended order - an administrative order or a standard court order. MCR 3.215(G)(2) prevents, either by administrative order or court order, giving interim effect to a referee’s recommended order for incarceration, property forfeiture, or sanctions.”

According to the Court of Appeals, had a change of custody provision been inserted in subrule (G)(2) of the court rule, the defendant’s argument would have been valid. “Our Supreme Court, however, did not do so, allowing for a judge to give interim effect to a referee’s recommended order to change the custody of a child by way of a court order. To be clear, MCR 3.215(G)(3) authorizes a court to give interim effect to a recommended order changing custody, not a referee.”

The trial court, by executing the referee’s recommended order to change custody, “properly exercised its authority under MCR 3.215(G)(3) to give the recommended order interim effect,” the Court of Appeals held. “Therefore, the trial court did not have a clear legal duty to refrain from giving interim effect to the referee’s recommended order changing custody, and thus defendant was not entitled to the requested writ of mandamus.”