Trial Court Properly Denied Ex-Wife’s Request For Medical Exam Of Ex-Husband

The trial court in this custody case did not abuse its discretion by denying the defendant’s request for a medical examination of the plaintiff, her ex-husband, the Michigan Court of Appeals has ruled.

The plaintiff and the defendant in Giordana v Giordana have three children together and were divorced in 2017. Since the parties’ divorce was finalized, the Court of Appeals has addressed various issues, including the Marquette County Circuit Court’s denial of the defendant’s motion to modify custody amid allegations of child abuse. (See, “Evidentiary Hearing Required On Mom’s Motion To Modify Custody” on the Speaker Law Blog.)

In this appeal (Docket No. 370808), the defendant had sought an order requiring the plaintiff to undergo a medical evaluation because he has the genetic markers for Huntington’s Disease (HD). The Marquette County trial court conducted a hearing and held that an exam was unnecessary because the plaintiff was not exhibiting any HD symptoms.

The defendant appealed this decision. The matter was consolidated with Giordana v Giordana (Docket No. 372323), where the defendant claimed the trial court erred when it modified the parties’ custody order to award sole legal custody to the plaintiff and primary physical custody to the defendant.

The Court of Appeals affirmed the trial court’s orders in both proceedings.

“It is true that plaintiff-father has the genetic markers for HD which he inherited from his father, and, according to expert testimony, will develop symptoms at some point in the future,” the Court of Appeals said. “But the trial court’s decision to not order a medical examination was not an abuse of discretion.”

Regarding custody, the Court of Appeals said although the trial court “could have been more explicit” when explaining the best-interest factors in MCL 722.23 that favored awarding sole legal custody to the plaintiff, the trial court’s reasoning was “sufficiently apparent from reading its opinion as a whole” and its decision was “adequately rooted in the evidence.” Therefore, the modified custody arrangement “does not fall outside the range of principled outcomes.”

Judge Philip P. Mariani, Judge Allie Greenleaf Maldonado and Judge Adrienne N. Young were on the panel that issued the unpublished opinion.

No Medical Exam Necessary

In Docket No. 370808, the defendant argued the trial court erred by not ordering a medical examination of the plaintiff because he had the genetic markers for HD.

The Court of Appeals disagreed, pointing out that MCR 2.311 indicates when a trial court may order a medical or other type of examination. MCR 2.311 “provides a trial court with discretion to order a party to submit to a physical or mental examination,” the Court of Appeals said. “In general, ‘good cause’ means a valid, sound, or satisfactory reason. … The trial court has broad discretion regarding what constitutes good cause.”

In this case, the trial court “found that according to expert testimony, plaintiff-father was not exhibiting physical signs of HD, and was gainfully employed as a recreational therapist with no issues at work,” the Court of Appeals observed. Moreover, the plaintiff’s primary care physician, Dr. Madosh, stated that the plaintiff did not need neuropsychological testing at this time, the Court of Appeals noted. “The trial court found Dr. Madosh’s testimony ‘particularly compelling as to the central issues of this case’ being plaintiff-father’s PCP for several years, and that she was best suited to recommend testing given ‘the intimacy of the physician-patient relationship.’”

In addition to testimony from various experts, the plaintiff also testified that “he did not believe he was in need of a medical examination and explained any anger, frustration, or irritability he displayed was attributable not to HD, but to being ‘deprived from seeing his children for a very long time,’” the Court of Appeals said. “He worried testing for HD would unjustly jeopardize his employment. He testified he was willing to continue working with his [primary care physician] to monitor possible symptoms and to get an examination if recommended by her. Plaintiff-father said that his sister, friends, and counselor would also monitor him for symptoms. The trial court found plaintiff-father’s testimony a ‘very valuable tool in enabling the [c]ourt to discern how he conducted himself under the rigors of cross-examination.’”

Based on the foregoing, the trial court’s conclusion the defendant did not meet her burden in establishing that good cause existed for ordering a medical examination “was not an abuse of discretion,” the Court of Appeals held. “The court’s reasoning is sound. No abuse of discretion is apparent.”

Change In Custody Appropriate

In Docket No. 372323, the defendant appealed the trial court’s modification of the parties’ custody order. Accordingly, the Court of Appeals examined the trial court’s analysis of the best-interest factors in MCL 722.23.

“Defendant’s arguments on appeal are largely rooted in credibility and weight, which were the province of the trial court, … and we find no error in the trial court’s fact-finding or application of the law as to the best-interest factors,” the Court of Appeals wrote.

In particular, the defendant claimed it was “contradictory” for the trial court to have awarded her primary physical custody while awarding the plaintiff sole legal custody. “We disagree,” the Court of Appeals said, citing MCL 722.26a(7) and the “different custody arrangements available.”

Here, the children “had been alienated from plaintiff-father for years,” the Court of Appeals observed. “The trial court concluded that it was best that they spend the majority of their time with defendant-mother because the factual findings did not establish by clear and convincing evidence that a change of the children’s established physical custodial environment would serve their best interests. Thus, defendant-mother retained primary physical custody.”

Meanwhile, the trial court “phased in considerable parenting time for plaintiff-father,” the Court of Appeals noted. “The court was also faced with the problem of defendant-mother having interfered with plaintiff-father’s ability to act as a parent for two years. It was reasonable, therefore, for the court to conclude that joint legal custody was not feasible and that plaintiff-father should be the one to retain legal custody so he could make decisions on the children’s schooling, medical care, and religious education.”

Citing Berger v Berger, 277 Mich App 700 (2008), the Court of Appeals said the trial court “’need not make its custody determination on the basis of a mathematical calculation and may assign differing weights to the various best-interest factors.’ Even if defendant-mother was ‘favored’ on more factors than plaintiff-father, the salient issues in terms of legal custody were the alienation issues and failure to include plaintiff-father in decision making. The trial court could have been more explicit in setting forth precisely which factors favored awarding sole legal custody to plaintiff-father, but in our view, the court’s reasoning is sufficiently apparent from reading its opinion as a whole, and the decision is adequately rooted in the evidence. This new custody arrangement does not fall outside the range of principled outcomes.”

Accordingly, the Court of Appeals affirmed the order denying the defendant’s request for a medical examination of the plaintiff, and affirmed the order awarding sole legal custody to the plaintiff.