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Trial Court Wrongly Refused Additional Evidence, New Custody Hearing Required

Posted on Wednesday, April 3, 2019

When issuing its custody order, the trial court improperly refused to consider new evidence about the minor child’s speech development and, as a result, the custody order must be vacated and the case remanded for a de novo hearing, the Michigan Court of Appeals has ruled.

In Robinson v Marculewicz (Docket No. 344803), the trial court had granted joint legal custody of the child, JM, to the plaintiff mother and the defendant father, with physical custody to the plaintiff mother. At the custody hearing, the trial court had declined to consider new evidence from the defendant about the child’s speech testing.

The defendant appealed the custody order. He argued, among other things, that the trial court wrongly refused his request to present new evidence about JM’s speech testing results.

The Court of Appeals agreed. “We hold that the trial court abused its discretion when it declined, at the de novo hearing, to admit or consider new test results concerning JM’s speech. Accordingly, we remand for a de novo hearing.”

Judges Christopher M. Murray, Deborah A. Servitto and Douglas B. Shapiro were on the panel that issued the per curiam, unpublished decision.

Custody Challenge

The plaintiff and the defendant were not married and had one child together, JM. The plaintiff filed a motion for primary physical custody and child support, which was referred to a Friend of the Court (FOC) referee for a hearing.

Meanwhile, the trial court ordered that JM reside with the plaintiff and that the defendant exercise parenting time with JM every other weekend. When the hearing before the FOC referee took place, both the plaintiff and the defendant testified and presented numerous witnesses.

The defendant testified that he had concerns about JM’s speech development because JM knew only a few words and did not talk. According to the defendant, the plaintiff refused to have JM tested and would not allow him to take the child to be tested. The plaintiff acknowledged that she and the defendant had discussed that JM may have a speech disorder and that the defendant had suggested that JM be tested. During one of the defendant’s parenting time weekends, he videotaped JM speaking to the plaintiff on the phone. These videos were entered into evidence at the hearing.

At the conclusion of the hearing, the FOC referee recommended the plaintiff be awarded primary physical custody under the factors in the Child Custody Act, MCL 722.21 et seq. The referee also recommended child support and that the defendant continue exercising parenting time on alternating weekends. The defendant objected to the custody recommendation.

The trial court conducted a de novo hearing. The defendant’s attorney informed the trial court that the plaintiff did have JM’s speech tested, the test showed the child’s speech was deficient and the defendant was willing to testify in this regard. Ruling from the bench, the trial court declined to consider any new evidence – including the results of JM’s speech testing, which had taken place after the FOC referee’s hearing.

In its order, the trial court awarded joint legal custody to both parties and physical custody to plaintiff, with the defendant being awarded alternate weekend parenting time. The defendant appealed.

Offer Of Proof Wrongly Denied

In its analysis, the Court of Appeals first addressed the sufficiency of the de novo hearing, finding this issue was “dispositive” of the appeal. “We agree with defendant that the trial court erred when it refused without explanation to allow him to present new evidence at the de novo hearing,” the Court said.

Citing the Friend of the Court Act, MCL 552.501 et seq., the Court of Appeals noted that MCL 552.507(2)(a) allows the trial court to designate a referee to hear motions on domestic relations matters. However, the Act does not relieve the trial court “of its duty to review a custody arrangement once the issue of a child’s custody reaches the bench,” the Court observed.

The Michigan Court Rules further state that a party “may obtain a judicial hearing on any matter that has been the subject of a referee hearing and that resulted in a statement of findings and a recommended order,” the Court of Appeals said, pointing to MCR 3.215(F)(2) in particular. “As MCR 3.215(F)(2) states, while the trial court may conduct the judicial hearing by review of the record of the referee hearing, ‘it must allow the parties to present live evidence at the judicial hearing.’ … The term ‘must’ indicates that something is mandatory.’”

In this case, the defendant’s attorney told the trial court that the plaintiff had JM’s speech tested and the test indicated that his speech was nine months’ deficient, the Court of Appeals noted. “He argued that this demonstrated plaintiff’s inability to care for the child and undermined both plaintiff’s testimony and the testimony of several of plaintiff’s witnesses who testified that JM’s speech was normal,” the Court observed. “Defendant made an offer of proof of the report and indicated that defendant would testify about the report and JM’s continued speech issues ‘if the Court would desire.’ The trial court’s denial of the offer of proof or the opportunity to hear defendant’s testimony on the subject without explanation was in contravention of the court rules.”

Evidence Unavailable At Referee Hearing

The Court of Appeals continued by recognizing that MCR 3.215(F)(2)(d) permits the trial court to use its discretion to “impose … reasonable restrictions and conditions to conserve the resources of the parties and the court” and that the trial court may “preclude a party from introducing new evidence ….”

However, this instruction “is tempered by the restriction that the trial court may do so ‘unless there is an adequate showing that the evidence was not available at the referee hearing,’” the Court of Appeals emphasized. Here, JM’s speech testing allegedly took place after the referee hearings were held and the defendant put forth a prima facie showing that the evidence did not exist at the time of the referee hearing, the Court observed.

“And this is important here,” the Court of Appeals noted, “because under the statute a hearing is de novo ‘if the … conditions’ of MCL 552.507(5) are met; one such condition is that ‘the parties are afforded a new opportunity … to supplement [evidence from the referee hearing] with evidence that could not have been presented to the referee.’”

Because the evidence that the defendant wanted to present did not exist during the referee hearing, it could not have been presented to the referee at that time, the Court of Appeals stated. “We conclude that the trial court’s refusal to allow the presentation of new evidence was a clear legal error, particularly when it was done without explanation.”

Accordingly, the trial court “erred when it violated both MCL 552.507(5) and MCR 3.215(F),” the Court of Appeals held. “Because we cannot conclude that the evidence of JM’s speech testing would not have influenced the trial court’s weighing of the statutory factors, its credibility determinations, and its ultimate disposition of this case, we remand so that the trial court may conduct a true de novo hearing in accordance with the statute and the court rules.”

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