Trial Court Abused Its Discretion by Admitting Evidence That Was Inadmissible
Opinion Published: May 11, 2023 (Boonstra, P.J., Gadola, Yates, JJ.)
Docket No. 362488
Washtenaw County Circuit Court
Jordan Ahlers of the Speaker Law Firm represented the Appellee-Mother
Holding: The trial court abused its discretion by admitting the GAL’s reports, Department of Licensing and Regulatory Affairs (LARA) documents, and expert opinion testimony about domestic violence because each piece of evidence was inadmissible. Although the trial court properly found that there was proper cause or a change of circumstances to warrant a custody review and that the children have an established custodial environment with both parents, the Court of Appeals held that the trial court committed clear legal error by failing to apply the clear and convincing evidence standard to Mother’s request to change legal custody and for 50/50 parenting time. The trial court further made findings against the great weight of the evidence regarding best interest factor (j). Therefore, the Court of Appeals vacated the trial court’s order changing custody and remanded to the trial court.
Facts: This appeal - the thirteenth appeal between the parties - follows a post-judgment of divorce motion to change legal and physical custody and parenting time. The parties were married in 2010 and have two children together. They moved to Michigan in 2014, where the father practiced law and mother began working as a research investigator and scholar. Mother filed for divorce in November 2015.
During their divorce proceedings, the trial court, under a previous judge, ordered the parties to undergo psychological and psychiatric evaluations. The evaluators, including Dr. Pamela Ludolph, opined that mother displays symptoms of borderline personality disorder, along with other mental health problems, and that father has anger management issues. The parties divorced by a consent judgment of divorce in 2017. Pursuant to their judgment of divorce, father was granted sole physical and legal custody and mother was granted supervised parenting time.
The case was later reassigned to a new judge and mother moved to modify legal and physical custody and parenting time, seeking joint legal and physical custody and 50/50 parenting time. Mother argued that because LARA had recently filed an administrative complaint against Dr. Ludolph, Dr. Ludolph’s prior testimony was unreliable, and a change of circumstances occurred. In the meantime, the trial court appointed a GAL and scheduled an evidentiary hearing for mother’s motion. At the evidentiary hearing, the trial court heard testimony from the parties, the GAL, and mother’s therapist as an expert witness. Following the evidentiary hearing, the trial court awarded the parties joint legal and physical custody and awarded mother five overnights every fourteen days with 50/50 parenting time over the Summer. Father then appealed.
Key Appellate Rulings:
The trial court abused its discretion by admitting GAL reports, LARA documents, and expert opinion testimony about domestic violence because those three pieces of evidence were inadmissible.
The Court of Appeals held that GAL reports and recommendations are not admissible under the catch-all exception to hearsay, MRE 803(24), because there is nothing particularly demonstrative of trustworthiness in a GAL’s report. The Court of Appeals held a GAL report is further inadmissible under the Court Rules because the only Court Rule providing for admission of GAL reports is found in Chapter 5, dealing with probate proceedings, rather than Subchapter 3.200, dealing with domestic disputes. Thus, a trial court’s review of GAL reports in a child custody case is limited to considering the recommendation.
The Court of Appeals held the trial court further committed clear legal error by admitting the LARA documents to discredit Dr. Ludolph’s prior testimony. The Court of Appeals held that these documents do not fall into the Public Records and Reports exception to hearsay under MRE 803 because MRE 803 does not allow parties to admit the factual findings of an investigative report. Because the LARA documents were expressly included because of their factual findings regarding Dr. Ludolph, the trial court committed clear legal error.
Finally, the Court of Appeals held that the trial court erred as a matter of law by admitting opinion testimony relating to domestic violence that occurred before the parties’ divorce. According to the Court, the allegations of domestic violence related only to pre-divorce conduct and did not relate to the custody or parenting time analysis because those must consider “up-to-date information.” Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994). Because mother did not provide any new evidence of domestic violence, but rather relied on the pre-divorce allegations of domestic violence in the form of the therapist’s opinion, the Court of Appeals held that the expert opinion was irrelevant to the custody and parenting time modification.
The trial court erred by applying the wrong evidentiary standard, by making findings against the great weight of the evidence, and by awarding the parties joint legal custody.
Preliminarily, the Court of Appeals affirmed the trial court’s determination that mother demonstrated proper cause or a change of circumstances because she had gradually enjoyed increasing and unsupervised parenting time since the judgment of divorce and had not exhibited any concerning behaviors since before 2020. The trial court also properly found that the children have an established custodial environment with both parties.
However, the Court of Appeals held the trial court erred by applying the wrong standard of proof on mother’s request to change custody. At the time of the evidentiary hearing, father had sole legal custody and the parties had joint physical custody. Because mother’s request proposed to change legal custody and substantially change parenting time, the trial court erred by not using the clear-and-convincing evidence standard of proof.
The Court of Appeals also held the trial court made findings against the great weight of the evidence regarding best interest factor (j). The trial court found that this factor slightly favored mother because father had a vast history of interrupting or impeding mother’s parenting time. The Court of Appeal held that this finding was against the great weight of the evidence because the trial court improperly criticized father for supervising mother’s parenting time, relied on pre-divorce allegations of domestic abuse, and ignoring the law of the case regarding mother’s own conduct. The Court of Appeals affirmed the Trial Court’s findings regarding the remaining best interest factors.
Finally, the Court of Appeals held the trial court erred in granting the parties joint legal custody because the evidence clearly demonstrates that the parties cannot agree and communicate regarding the children’s needs.
