DOMESTIC CASELAW UPDATE

BY RYAN O'NEIL (OAKLAND COUNTY)

custody

RYAN O'NEIL

Kuebler v. Kuebler, _____ Mich App _____, ______ NW2d ______, 2023 (Docket No. 362488)  Washtenaw County

This most recent opinion is one of many opinions and orders that stem from a highly contentious matter. At the initial custody determination, Dr. Ludolph, the psychologist, found that Mother had borderline personality disorder and Father had anger management issues.   Since the last order on appeal, Father was awarded sole legal and sole physical custody of the minor children.  

---

While the last appeal was pending, a new judge was assigned to this matter at the trial court.  Mother again sought to modify custody and parenting time.  Mother alleged, in part, that Dr.  Ludolph was under investigation from the Licensing and Regulatory Affairs, Bureau of Professional Licensing (LARA) and that an expert hired on behalf of LARA had concluded that Dr. Ludolph’s evaluation of Mother in the underlying divorce action was incompetent.  After this motion was filed, the trial court entered multiple interim parenting time orders without holding a hearing.   

The new judge expressed “disagreement” with the prior judge’s decisions in the case and removed the supervision restriction on Mother’s parenting time.  The trial court also appointed a GAL.  When Father asked to stay the new parenting time order, the trial court denied the request and stated that, despite not having conducted a hearing, the mother was “stable.”  

The trial court entered three (3) separate orders increasing Mother’s parenting time without conducting a hearing.  The third order was vacated by the Court of Appeals.   The parties subsequently entered into a consent order with Father continuing to exercise sole legal custody and with a graduated parenting time scheduled for Mother. 

An evidentiary hearing was held nearly eight (8) months after Mother filed her motion.  While the hearing was pending, the parties entered into a consent order regarding parenting time where Mother’s time would increase to five (5) overnights every two (2) weeks.  During the hearing, Mother sought an equal parenting time schedule  with joint legal custody.  Following the hearing, at which the trial court considered evidence from the LARA investigation of Dr. Ludolph which concluded that she had conducted her evaluation in a biased fashion, the court found that Mother had demonstrated proper cause and a change in circumstance because her health was “stable” and she had exercised expansive parenting time with the minor children.  The trial court applied the preponderance of the evidence standard and awarded Mother parenting time for five (5) overnights every two (2) weeks and a 50/50 split in the summer.  The trial court also awarded the parties joint legal custody.  

The Court of Appeals ruled that the trial court’s inclusion of the GAL report was in error and contrary to the rules of evidence.  The GAL’s report included statements from the GAL’s interviews with third parties which means the report was hearsay.  The trial court admitted the GAL’s report under MRE 804(24) which is otherwise known as the “catch-all exception.”  
​​

The requirements of the catch-all exception “are stringent and will rarely be met,” and this exception should not be applied in a manner that will “swallow” the hearsay rules through overuse. People v Katt, 468 Mich 272, 289; 662 NW2d 12 (2003). “To be admitted under MRE 803(24), a hearsay statement must: (1) demonstrate circumstantial guarantees of trustworthiness equivalent to the categorical exceptions, (2) be relevant to a material fact, (3) be the most probative evidence of that fact reasonably available, and (4) serve the interests of justice by its admission.” Id. at 290.

​The Court found that the trial court did not analyze each of the required factors under MRE 803(24) and that admission of the report under this hearsay exception was incorrect.  Mother argued that the reports should have been admitted under the Michigan Court Rules 5.121(D)(1).  Several months prior, the Court of Appeals, in an unpublished opinion, ruled that a GAL report in a domestic relations case was admissible because MCR 5.121(D)(1) was otherwise applicable (despite being a court rule in the probate court section).   

In Mildenberg v. Mildenberg, unpublished per curiam opinion of the Court of Appeals, issued September 29, 2022 (Docket No. 357175, 358328), the trial court admitted the report pursuant to “MCR 5.121(C), the GAL is required to “conduct an investigation and shall make a report in open court or file a written report of the investigation and recommendations.” And, under MCR 5.121(D)(1), that report may be received by the trial court, even if it would not be admissible under the rules of evidence.  The Court of Appeals found that the trial court did not err in relying upon MCR 5.121.  Even though that rule addresses submission of GAL reports in probate matters, the court rules apply generally unless otherwise restricted.   

The Court of Appeals, without directly addressing the unpublished ruling in Mildenberg, rejected this argument and instead ruled that, “The organizational placement in the structure of the court rules supports that this rule applies in probate court proceedings, not domestic relations action.” 

MCL 722.27(1)(d) governs the use of GALs in domestic relations matters.  The statute does not provide for admission of a GAL’s report.  The Court compared a GAL report to that of a Friend of the Court report in custody disputes stating that, in the case of an FOC report, it may be considered by the trial court but is not admissible into evidence unless agreed upon by both parties.  

The Court also rejected the trial court’s admission of the LARA reports as MRE 803(8) which provides for the admission of, “records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law. . .”  MRE 803(8) “does not allow the admission of evaluative and investigative reports, nor does it allow for the admission of factual findings resulting from an investigation made. . .”  Bradbury v. Ford Motor Co, 419 Mich 550, 553-554; 358 NW2d 500 (1984).   In this case, the report was the product of an investigation by LARA and therefore not an exception under MRE 803(8).  

The Court of Appeals also found that the trial court erred in allowing testimony to be offered regarding alleged domestic violence by Father and against Mother prior to entry of the divorce judgment.  “[P]roceedings for the modification of child custody provisions generally require new evidence that was not available in the divorce action.” 10 Michigan Pleading & Practice (2d ed), § 70:323. See also Huger v Huger, 313 Mich 158, 163; 20 NW2d 848 (1945).
​

The purpose of a child-custody proceedings to modify an existing custody order is to determine the best interests of the children on the basis of “up-to-date information” and “any other changes in circumstances arising since the trial court’s original custody order.” Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994). See also Vodvarka v Grasmeyer, 259 Mich App 499, 515; 675 NW2d 847 (2003) (“[A] party would be hard-pressed to come to court after a custody order was entered and argue that an event of which they were (or could have been ) aware before the entry of the order is thereafter significant enough to constitute proper cause to revisit the order.”)

The Court also found that the trial court committed multiple evidentiary errors, and that looking at these errors (including the admission of irrelevant evidence, hearsay evidence, etc.) in their totality, vacating the trial court's order was warranted.  

Father argued that entry of the interim parenting time orders, even consent orders, were in error as the trial court did not follow the requirements of the Michigan Custody Act.  The Court of Appeals acknowledged that many errors were made by the trial court.  At the same time, the interim orders that were challenged previously were vacated by the Court of Appeals (on earlier appeals) only to have Father and Mother enter into their own stipulated orders.  

A party cannot show error requiring reversal when, as in this case, the aggrieved party contributed to that error by plan or neglect. See Genna v Jackson, 286 Mich App 413, 422; 781 NW2d 124 (2009). Having stipulated to plaintiff’s increase in parenting time, and having stipulated to the delay in the evidentiary hearing, defendant cannot now complain on appeal that the trial court erred by entering interim orders without following the procedures in the Child Custody Act. ​

The Court did reject Father’s argument that the trial court erred in finding a change in circumstance/proper cause.  At the time of the hearing, Mother was exercising unsupervised parenting time with the minor children (on consent of the parties).  Mother also had ceased engaging in a social media campaign against Father and was no longer making false CPS reports.  

The Court also found that, while Father was wrong that the children did not have an established custodial environment with both parents, the trial court did err in applying the preponderance of the evidence standard instead of the clear and convincing standard.  Mother had, of the course of the last year, had increased parenting time with the children who had turned to her for “guidance, discipline, the necessities of life, and parental comfort.”  Mother, in seeking 50/50, was looking for a “significant modification” of the custodial environment (where Mother was exercising 5 out of 14 overnights).  

Father challenged all of the best interest findings made by the trial court, but the Court of Appeals only found the trial court’s findings with regards to Factor (J) - “willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents - in error.  The trial court erred in making a finding against Father for supervising Mother’s electronic communications with the minor children during the Covid-19 pandemic as the trial court had previously entered orders requiring Mother’s sessions be supervised.  The Court of Appeals also accused the trial court of attempting to “rewrite history” as the Court previously affirmed the trial court’s findings that Mother’s photographing of the minor child’s genitalia was harmful.  The Court of Appeals found that the trial court’s ruling that Factor (J) slightly favored Mother was against the great weight of the evidence. 

The Court of Appeals further found that the trial court erred in finding that the parties had an ability to jointly communicate to make decisions on behalf of the minor children.  
​

The history of this case demonstrates that the parties are so completely incapable of making decisions about their children together that the parties could not even agree on a name for their youngest child, and ultimately submitted that matter to the trial court; the trial court entered an order naming SK.

The Court found that the facts of the case preponderate against the ability of the parties to make decisions together regarding the welfare of their children.  The parties were unable to reach a consensus on decisions impacting their children without the aid of third parties.  


Palik v. Palik, unpublished per curiam opinion of the Court of Appeals, issued July 6, 2023 (Docket No. 363995)

This case was previously before the Court of Appeals in Docket No. 361100.  Mother removed the minor children from their home and moved to Minnesota where they lived with her boyfriend.  The parties’ initial parenting time schedule was drafted so that Mother had the minor children while Father worked in Wisconsin and then living with him while he was off.  After the separation however, Father sought sole legal custody after learning that the children had educational deficiencies.  Father also obtained a new job full-time in Michigan, but at half of what he was previously earning.  

The trial court granted Mother primary physical custody of the minor children, awarded Father specific parenting time, and further found that his departure from his previous job was unreasonable and imputed him at an income consistent with his previous earnings.  

The Court of Appeals affirmed the trial court’s ruling that the children only had an established custodial environment with Mother.  The trial court found that the children did not have an established custodial environment with Father because, before the separation, he was not actively involved in providing for their care and upbringing.  While Father’s role did enlarge after the separation, this was temporary until the kids returned to school at which time Father saw them alone two (2) weekends per month.  The Court also distinguished this case from Bofysil in that, Mother testified that while Father was home, he did not spend a lot of time with the minor children.  

The trial court found that best interest factors (a) (b) (c) (e) (f) (g) and (h) either favored neither party or both parties --- but never provided any findings as to which findings factored both parties and which factors favored either party.  The custody order was thus vacated and remanded back to the trial court.  On appeal, the trial court made detailed best interest findings and denied Father’s request to modify custody (without a hearing).  
​

[O]n remand, the court should consider up-to-date information, including the children’s current and reasonable preferences, as well as the fact that the children have been living with [a party] during [an] appeal and any other changes in circumstances arising since the trial court’s original custody order.” Fletcher, 447 Mich at 889.; see also In re Doe, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 353796); slip op at 2

In this case, the trial court failed to consider up-to-date information.  This would also include the reasonable preference of the minor children.  


Collins v. Collins, unpublished per curiam opinion of the Court of Appeals, issued July 20, 2023 (Docket No. 363791)

Father lived in Jackson where the minor child attended school.  Mother lived in Brighton.  The minor child had behavior and academic issues at school in Jackson.  Mother alleged that the school in Jackson “dragged its feet” to enroll the child in an IEP and argued that the school in Brighton could have the child enrolled in an IEP in thirty (30) days.  At the evidentiary hearing, Mother sought to introduce two (2) reports - the Jackson school report was admitted but the trial court would not admit the Brighton school report and found that it was “authenticated hearsay.”  The trial court found that Mother did not prove by a preponderance of the evidence that a change in school was in the minor child’s best interests and denied the motion.  

On appeal, the Court of Appeals found that the trial court committed error when it excluded the Brighton school report.  
​

​​MRE 803(8) is limited to “reports of objective data observed and reported by [public] officials.”  Bradbury v Ford Motor Co, 419 Mich 550, 554; 358 NW2d 550 (1984). There is an “inherent trustworthiness of documents prepared by a public official in carrying out his duties which justifies the public records exception[.]” Solomon v Shuell, 435 Mich 104, 132; 457 NW2d 669 (1990).  However, this inherent trustworthiness is inapplicable if the record was prepared in anticipation of litigation. Id.

The Brighton schools report that Mother sought to introduce was prepared by a public official and was not prepared in anticipation of litigation.  “The Brighton report is located on the State of Michigan’s official public portal for education data, which is designed to help citizens, educators, and policymakers make informed decisions regarding the success of Michigan’s students.”  The Court of Appeals further found, “This data is compiled, reported, and published by the state of Michigan to provide the public with a report of statistical information to consider when evaluating potential schools. This is precisely the type of objective public report this Court can assume to be accurate and reliable.”  

The Court of Appeals further found that the trial court erred in finding that that report was not properly authenticated.  “MRE 902(5) states that official publications, such as “[b]ooks, pamphlets, or other publications purporting to be issued by public authority[,]” are self-authenticating. As defendant pointed out, the Brighton report is published by the State of Michigan, which is a public authority, and has several insignias and a legend indicating this public authority.” 

The trial court’s order was vacated, and the matter remanded to the trial court to consider the Brighton report along with up-to-date information as it relates to Mother's petition to change the minor child’s school.  


Pueblo v. Haas ____ Mich ____,  ______ NW2d_____ (Docket No. 164046) (July 24, 2023) 

The Michigan Supreme Court extended the application of the equitable parent doctrine to individuals who were previously denied the ability to marry their same-sex partner in cases where those individuals did not share a biological relationship with the minor child.
​

“[B]iological relationships are not [the] exclusive determination of the existence of a family[.] . . . No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in [their] care may exist even in the absence of blood relationship.”
​
Smith v Org of Foster Families for Equality & Reform, 431 US 816, 843-844; 97 S Ct 2094; 53 L Ed 2d 14 (1977)

Haas and Pueblo were in a long-term relationship during a period where same-sex marriage was prohibited in Michigan.  Haas, through the use of in vitro fertilization (“IVF”), gave birth to a child that was biologically hers.  Pueblo had no biological connection to the minor child.  The parties raised the child together, even after their separation, until the child turned 9, at which time Pueblo was prohibited from having contact with the child.  Pueblo filed a custody complaint in 2020.  Haas sought and was granted summary disposition by the trial court.  

The Court of Appeals rejected Plaintiff’s claim that she was a natural parent as the parties were not married pursuant to Lake v. Putnam, 316 Mich App 247 (2016).  Plaintiff countered that she has standing under the “elastic definition” of natural parent pursuant to LeFever v Matthews, ___ Mich App ___; ___ NW2d ___ (2021) (Docket No. 353106).  The Court distinguished this case from LeFever as in that case, Plaintiff’s eggs were used and Defendant gave birth  thereby giving a physical connection to the children as a result of the genetic relationship.   The Court also declined to extend the equitable parent doctrine to parties who were not married irrespective of the fact that marriage was not a legal option for the parties at the time the child was conceived. 

The Child Custody Act does not define what a “natural parent” is.  MCL 722.25(1).  The Michigan Supreme Court then engages in a comprehensive review of appellate cases which have tackled the issue of a natural parent and the application of the equitable parent doctrine in light of Obergefell v. Hodges, 576 U.S 644 (2015).  The equitable parent doctrine, and it is applied currently, provides the following: ​

A spouse who is not a biological parent has standing to seek custody of a child born or conceived during their marriage when (1) the would-be equitable parent and the child acknowledge the parental relationship or the biological or adoptive parent has cultivated the development of a relationship over a period of time, (2) the would-be equitable parent desires to have the rights afforded a parent, and (3) the would-be equitable parent is willing to pay child support. 

​Mabry, 499 Mich at 998 (McCORMACK , J., dissenting); see also Atkinson, 160 Mich App at 608-609

​The ability to be an equitable parent falls under the umbrella of other benefits that married individuals enjoy called the constellation of benefits:
​

Obergefell emphasized generally the importance of the various benefits that the states have connected to marriage, referred to as the “constellation of benefits.” Obergefell, 576 US at 670 (including “taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision-making authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules”).

The Court tapped into its equitable authority to provide same-sex couples who were unable to legally marry, and by extension, avail themselves to the “constellation of benefits”, the ability to pursue a claim of custody under the equitable parent doctrine.  

The Court clarified that it was not, and did not have to, overturn the ruling in Van v Zahorik, 460 Mich 320, 597 NW2d 15 (1999).  Van did not extend the rights of the equitable parent doctrine to individuals who chose not to get married.  Couples in same-sex relationships, prior to Obergefell did not have the legal right in Michigan to get married.  

The Michigan Supreme Court did overturn Lake v Putnam, 316 Mich App 247; 894 NW2d 62 (2016).  In Lake, the Court of Appeals found that retroactive application of the equitable parent doctrine would have applied marriage on same-sex couples who were not married.  The Michigan Supreme Court ruled that such an application was not necessary, but instead, a moving party merely show that they, by a preponderance of the evidence, would have been married had they legally been permitted to do so.   The equitable parent doctrine is not available to same sex parties who would not have married even if they had been legally permitted to do so.  The court must conduct a factual inquiry to ascertain whether there was mutual consent to marry absent the legal impossibility as it existed at the time.  

The Michigan Supreme Court, in citing the Oregon case In re Madrone, 271 Or App 116, 127-129; 350 P3d 495 (2015), provided the following factors for a court to consider when contemplating whether a same sex couple would have married if they had been legally permitted to do so: 
​

Whether a particular couple would have chosen to be married, at a particular point in time, is a question of fact. In some cases, the answer to that question will be obvious and not in dispute. . . . In other cases, the answer will be less clear. A number of factors may be relevant to the fact finder’s determination. A couple’s decision to take advantage of other options giving legal recognition to their relationship—such as entering into a registered domestic partnership or marriage when those choices become available—may be particularly significant. Other factors include whether the parties held each other out as spouses; considered themselves to be spouses (legal purposes aside); had children during the relationship and shared child rearing responsibilities; held a commitment ceremony or otherwise exchanged vows of commitment; exchanged rings; shared a last name; commingled their assets and finances; made significant financial decisions together; sought to adopt any children either of them may have had before the relationship began; or attempted unsuccessfully to get married. We hasten to emphasize that the above list is not exhaustive. Nor is any particular factor dispositive . . . , given that couples who choose not to marry still may do many of those things. Instead, we view the factors as tending to support, but not compelling, an inference that a same-sex couple would have married had that choice been available.

In ​re Madrone, 271 Or App at 128-129.

The Michigan Supreme Court ruled that:​

Therefore, we narrowly extend the equitable-parent doctrine to Pueblo and other similarly situated persons who were unable to marry during their same-sex relationships because of discriminatory and unconstitutional Michigan laws but who nonetheless developed de facto parent-child relationships with the children born or adopted by their same-sex partners during the time they would have otherwise been married.

A person seeking custody who demonstrates by a preponderance of the evidence that the parties would have married before the child’s conception or birth but for Michigan’s unconstitutional marriage ban is entitled to make their case for equitable parenthood to seek custody.

The matter was remanded back to the trial court to conduct a threshold hearing as to whether Pueblo should have standing as an equitable parent by applying the test and applicable factors set forth above.  

A concurring opinion urged the legislature to consider updating and furthering the current laws in Michigan to provide even further clarification for cases involving children born to same-sex couples.

​A dissenting opinion would not have extended the equitable parent doctrine in cases such as this one and further opined that such an application may have unforeseen ramifications beyond the context of custody cases.  The dissent does not believe that Obergefell required states to recognize a right to parenthood in same sex couples/marriages, but instead, only required states to recognize a same-sex couple’s right to marry.  The dissent does not believe that the majority opinion adequately explained why the application of the equitable parent doctrine in cases where same-sex couples were unable to marry was constitutionally required.  The dissent questions the legal authority of the equitable parent doctrine. 

UCCJEA

Nock v. Miranda-Bermudez, _____ Mich App _____, ______ NW2d ______, 2023 (Docket No. 363362)  Ogemaw County

Mother and Father lived in California with their two (2) minor children.  Mother moved from California to Michigan and took the children with her.  Mother did not provide Father with her address and acknowledged that, while she did not allow the children to have contact with Father, it was because the contact was traumatizing for the children.  

Father filed a petition in California in November 2020 seeking emergency custody.  In the petition, he alleged that the children had left California for Michigan in April 2020.  The California court found that California was the children’s home state and in March 2021, the California court ordered that the parties share legal custody and that the children be returned to California.  

In August 2021, Mother filed a petition in Michigan seeking an ex parte custody order and argued that the California order was unenforceable since Michigan was the children’s home state.  The Michigan trial court determined that Michigan was the home state for the minor children, entered an order awarding Mother temporary custody.  Mother went to California and took the minor children back to Michigan with her.  Father then sought to register the California order in Michigan which was rejected by the Michigan trial court which ruled that California did not have jurisdiction.  Michigan subsequently awarded Mother sole legal and sole physical custody.  

The Court of Appeals affirmed the Michigan trial court’s finding that California lacked subject matter jurisdiction.

​California defines a child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.” Cal Fam Code § 3402(g).  It is undisputed plaintiff moved with the children from California to Michigan by, at the latest, April 1, 2020. But defendant did not file the custody action in California until November 13, 2020—more than seven months after the children moved with plaintiff to Michigan. Yet the California court determined it was the children’s home state for purposes of the UCCJEA.

The Court of Appeals further found that, while the Full Faith and Credit Clause of the United States Constitution would ordinarily require Michigan to recognize their custody order, however, both the UCCJEA and Parental Kidnapping Protection Act (PKPA) require that a state have personal jurisdiction before another state can recognize their orders.  Since California did not have personal jurisdiction, Michigan was not required to afford full faith and credit to their order.  ​

CHILD SUPPORT

Trebnik v. Trebnik, unpublished per curiam opinion of the Court of Appeals, issued May 25, 2023 (Docket No. 360106). Oakland County

On motion for interim child support, the trial court awarded Mother $3,000/month for one (1) minor child but did not explain how the calculation was made.  The parties ultimately entered a settlement their divorce case but referred the matter of child support to the Friend of the Court for an investigation and recommendation.  

The FOC recommended that Father pay support in the amount of $3,388/month.  Neither party objected to the recommendation.  Following periods of unemployment and job changes, Father filed a motion to modify the support obligation.  

That matter was referred to the referee for a hearing.  Following the hearing, the referee recommended that support be modified, retroactive to June 2021, in the amount of $1,354/month and that he pay the $3,388/month from July 1, 2019 to June 2021 as previously recommended and given that he did not object to that recommendation.  On de novo, the trial court ordered that Father pay support in the amount of $3,388/month and denied Father’s motion to modify support finding that he did not demonstrate a substantial change in circumstance.  

The Court of Appeals ruled that, in light of the unusual procedural history of the case, there was no “final” child support order entered until January 11, 2022.  Accordingly, the trial court was required to find whether “good cause” existed under MCR 3.207(C)(3) to modify the temporary order instead of a finding of a “change in circumstance.”  

Additionally, the trial court, both in entering the interim order and rendering it a final order, did not properly consider Father’s income pursuant to the MCSF.  Father testified that the $347,000 Mother alleged he would earn in 2019 was an anomaly.  The trial court should have looked at the 2018 income for a comparison.  The trial court also did not consider the parties’ rental income.  


Pecher v. Habscheid, unpublished per curiam opinion of the Court of Appeals, issued July 20, 2023 (Docket No. 361496). Midland County

Following trial, Wife appealed the trial court’s calculation of child support pursuant to the Michigan Child Support Formula (“MCSF”).  Wife argued that the trial court improperly relied upon valuation of her business and its gross profit to assign Wife’s income for purposes of calculating child support.  “[T]he first step in determining a child- support award is to ascertain each parent’s net income by considering all sources of income.” Stallworth, 275 Mich App at 284; see also 2021 MCSF 2. The term “net income” is defined as “all income minus deductions and adjustments permitted by this manual.” 2021 MCSF 2.01(A).  The Court went on to state, “2021 MCSF 2.01(E) makes clear that a self-employed parent’s income is not determined solely by reference to their businesses’ net profits.”  The matter of Wife’s income, as well as whether or not Husband should have income imputed to him (as the trial court did not address this issue in its ruling) were remanded back to the trial court.