JOHN FRANCIS HALL V JULIE ANN STEWART
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN FRANCIS HALL,
UNPUBLISHED
Plaintiff-Appellant/Cross-Appellee,
v
No. 195702
Midland Circuit Court
LC No. 91-009199 DP
JULIE ANN STEWART,
Defendant-Appellee/Cross-Appellant.
Before: Hood, P.J. and McDonald and White, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree with the majority that the trial court did not abuse its discretion in its rulings
regarding plaintiff’s cross-examination and presentation of witnesses, was not biased, and did not
err with respect to the taped conversations or in determining that an established custodial
environment existed with defendant. I also agree with the majority’s resolution of defendant’s
cross-appeal.
This is a difficult, unfortunate and troubling case. The record depicts a situation going
beyond the mere exercise of “extremely poor judgment” by defendant. One could easily
conclude on this record that defendant’s poor judgment was purposeful and aggressive, and had
evolved to the point where she was doing serious, and soon to be irreparable, harm to the minor
child, requiring a change of custody in the child’s best interest. One could also conclude on this
record that, taking into account the established custodial environment, plaintiff’s physical
location,1 and the minor child’s age, defendant should be given an opportunity to remedy the
situation and custody should remain with defendant subject to compliance with strict conditions
and monitoring.
I cannot agree that this record supports an award of custody to defendant absent the
imposition of conditions such as those recommended by the court-appointed Friend of the Court
custody evaluator, Alan Zoltowski, the need for which was echoed by the testimony of the courtappointed psychologist who evaluated the parties, Dr. Kenneth Bertram.2 Both Zoltowski and
Bertram3 recommended that plaintiff father be awarded custody.
Zoltowski testified that he spent approximately 200 hours on this case over thirteen
months, interviewed plaintiff seven times, interviewed defendant nine times, and interviewed
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defendant and plaintiff with their respective spouses. Zoltowski’s in-depth forty-three page
report to the court recommended that plaintiff’s petition for change of custody be granted
immediately, and noted that if the court did not follow his recommendation, the court should
seriously consider implementing the following for the child’s well-being and development:
1. The Mother involve herself in psychotherapy with a psychologist selected by
this Evaluator. This psychologist will be apprised of the Mother’s devaluation of
the Father through the forwarding of the Friend of the Court Custody Evaluator’s
report and the report by Dr. Ken Bertram to the psychologist prior to Ms.
Shangraw’s [defendant] involvement in therapy. The purpose of therapy is to
hopefully “reprogram” her current affective, cognitive and behavioral devaluation
of the Father. This psychologist will report periodically to the Evaluator on Ms.
Shangraw’s progress. It is also recommended that costs incurred by the Mother
and the minor child in therapy be the responsibility of the Mother.
***
3. The Court “review” this case in one year (or earlier if necessary), taking into
account the progress or lack of progress of Ms. Shangraw in therapy, the
adjustment and well-being of [the child], and, finally, whether or not there has
been a significant change in the Mother’s behavior, attitude and demeanor
regarding [the child’s] relationship with the Father. Here, the Evaluator is inviting
the Mother to recognize and acknowledge her actions as debilitative and learn to
make it right in the best interests and rights of [the child]. It is hoped that the
Mother, and her family, will extend themselves to the Father for the benefit of [the
child].4
In the conclusion section of his report, Zoltowski stated:
The Friend of the Court Custody Evaluator has spent an inordinate amount of time
investigating, gathering data, reviewing case notes and the facts of this case and
has identified four areas that are of most concern and significance to this case:
1. The Mother has outright, maliciously and painstakingly thwarted [the child’s]
relationship with her Father, John Hall, since July 7, 1991. The Mother does not
value the presence of the Father, at all in the life of her daughter, …. Is this
continued, lack of facilitation of the parent-child relationship great enough to
change custody? By not changing custody now, will [the child] continue to be
damaged beyond changing custody?
***
4. With the custody … remaining with the Mother, and the Mother being
informed of how inappropriate her behavior is, it is the opinion of this Evaluator
that the Mother will most certainly continue her alienation and further devaluation
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of the Father. This continued alienation has the ability to cause the most
psychological and maybe even pathological damage to the psyche of [the child].
Admittedly, the Friend of the Court Custody Evaluator has struggled with this
case. By way of analysis, there are consequences for [the child] if she remains in
the custody of her Mother as well as if she is removed from this environment.
Despite the Evaluator’s above opinion that the child is psychologically bonded to
the Mother due to her role as primary caregiver, the Evaluator will go one step
further and state his opinion that he feels it is a shame and a tragedy that the
Mother is void of understanding the need of [the child] to experience ties with her
Father. The Mother has demonstrated herself to be immature, insecure, and too
selfish to allow her daughter to have a relationship with Mr. Hall. The Mother
fails miserably at allowing [the child] her inalienable right to regard this man as
being a significant figure in her life. The Father clearly presents a healthier
environment for [the child].
It is this Evaluator’s opinion that a proactive approach must be taken to allow this
child to grow and develop in a healthy, fully-inclusive environment. This child
needs to be shielded from further encroachment by her needy, insecure and
overprotective Mother if she is to have any hopes of a healthy relationship with
her Father. A child deserves the right to be cared for in an environment where
both parents have social-psychological access to the child.
This Evaluator is inclined to believe that the Mother’s behavior and belief system
toward the Father will not change. It is, therefore, the opinion of the Friend of the
Court Custody Evaluator that a “proactive” approach be taken, rather than
“reactive” approach at a time when the minor child’s relationship with the Father
is unsalvageable. . . .
The trial court failed to appreciate the gravity of defendant’s alienating and obstructive
actions and their impact on the child’s development and well-being. The award of custody to
defendant without safeguards or conditions is against the great weight of the evidence. I would
remand for modification of the order denying the petition.
/s/ Helene N. White
1
At the time of trial, plaintiff and his wife lived in Alabama and defendant and her husband lived
in Midland, Michigan.
2
Dr. Bertram’s recommendations were based on his psychological evaluations of the
parties and his having observed defendant and her husband interacting with the child and
her half-sister, and plaintiff and his wife interacting with the child. Dr. Bertram also
noted that he spent an hour speaking with the maternal grandparents.
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3
Dr. Bertram testified at trial that he was altering his recommendation that custody remain with
defendant and that custody should be awarded to plaintiff, in light of defendant’s failure to
modify her behavior and actions in alienating the child from plaintiff and obstructing plaintiff’s
relationship with the child. Dr. Bertram’s initial report to the court, submitted eleven months
before trial, in February 1995, recommended that custody remain with defendant mother and that
plaintiff be granted liberal and abundant visitation. However, that initial recommendation was
made with grave reservations:
. . . I offer the recommendations below with considerable distress and misgiving.
I am deeply troubled by what appear to me to be hard-hearted, narrow-minded,
and mean-spirited views held by Ms. Shangraw [defendant], her parents, and
possibly her husband, Steve Shangraw, regarding Mr. Hall and his relationship
with [the minor child]. Further, the Michigan contingent of [the child’s] family
seems to be committed to the notion of eradicating Mr. Hall’s significance to his
daughter, or at the least, of carefully managing his involvement in her life. In
pursuit of this particular goal, the Shangraws and the Stewarts [the chid’s
maternal grandparents] routinely practice what looks to me like insincerity,
duplicity, and even deceit. This group of individuals appears to have made
precious little effort to understand what it might be like to be Mr. Hall or [the
child]. They seem, actually, not to have gotten further in their contemplation than
the terror of losing [the minor child] to Mr. Hall.
The nature of my work as a clinical psychologist has, for many years, regularly
brought me into intimate contact with extremely troubled, dysfunctional families.
Because of this, I suppose my sensibilities have become somewhat blunted. I
have acquired the tolerance for inappropriateness and destructiveness that
accompanies cynicism. Yet it astonishes and chagrins me that [the minor child’s]
mother and her family are not capable of more largess, generosity, sophistication,
and reason than their attitudes and deeds would seem to reflect.
Dr. Bertram altered his opinion at trial and testified that the dynamics he wrote about in his
report, quoted above, continued to trouble him and cause him great reservations about continuing
the child in defendant’s environment. Dr. Bertram testified that he had changed his mind
regarding the parties’ emotional resources and psychological competence, from believing that the
parties were “approximately equal,” to concluding that plaintiff was the better choice in light of
defendant’s ongoing, continued efforts to alienate [the child] from plaintiff and obstruct
plaintiff’s relationship with [the child]. Dr. Bertram testified at trial regarding his initial
conclusion, as stated in his recommendation of February 1995, that custody remain with
defendant:
But what bothers me about it is that in spite of repeated arguments and
suggestions and incitements and encouragements to allow and encourage Mr.
Hall’s involvement in this adaptive, hardy little child’s life, Mrs. Shangraw and
her family will not back down, will not alter their standard or their stance.
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And it isn’t based on any logical set of ideas. It isn’t based on any rational,
informed arguments. It isn’t even based on any data or information. It’s based on
this feeling and on this belief that he’s bad, they’re good, and he ought to get the
hell out and stay the hell out. Um, I find that beyond offensive. It’s –and I find
that beyond destructive.
And it’s led me to the point where, even in spite of [the child’s] tender years, I’m
seriously considering making – shifting my professional recommendation to
change custody now, instead of waiting for another four or five years, when I
would be completely confident that this child would be unruffled and
untraumatized by that change; and before the age of adolescence when one’s
friends are, in fact, more important than one’s family and one’s school is in fact,
more important than one’s family.
Dr. Bertram testified that he considered defendant’s prognosis for change dismal, and that if
custody remained with defendant, defendant and her family would likely feel vindicated and be
less likely to change.
4
Zoltowski also recommended that plaintiff’s visitation be increased. The trial court’s order
effected that change. Zoltowski further recommended that the parties “stop preparing for Court”
as adversaries and begin developing strategies for becoming allies towards the child’s welfare,
and that plaintiff not “turn up” his efforts at documenting and analyzing defendant’s behavior and
actions. Lastly, Zoltowski recommended that one of the parties consider moving in the
geographic vicinity of the other to insure the child’s relationship with both parents.
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