LISA R BOEHNLEIN V ALBERT J BOEHNLEIN
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STATE OF MICHIGAN
COURT OF APPEALS
LISA R. BOEHNLEIN,
UNPUBLISHED
July 6, 2001
Plaintiff-Appellee,
v
No. 231000
Washtenaw Circuit Court
LC No. 94-001984-DM
ALBERT J. BOEHNLEIN,
Defendant-Appellant.
Before: Hood, P.J., and Whitbeck and Meter, JJ.
WHITBECK, J. (dissenting).
I respectfully dissent because I believe that under the complex facts of this case and the
applicable case law and court rules, the trial court erred when it determined that an evidentiary
hearing was not necessary.
I. Standard Of Review
Whether the trial court must hold an evidentiary hearing on every motion for change of
custody presents a question of law that appellate courts review de novo.1 However, the trial
court’s decision not to hold the evidentiary hearing must be reviewed for factual findings that
went “against the great weight of evidence,” a “palpable abuse” of the trial court’s discretion, or
a “clear legal error on a major issue.”2
II. Evidentiary Hearing
The child custody act3 authorizes a trial court to modify child custody “orders for proper
cause shown or because of change of circumstances,” and if in the child’s best interests.4 As the
1
Schlender v Schlender, 235 Mich App 230, 232; 596 NW2d 643 (1999).
2
MCL 722.28.
3
MCL 722.27(1)(c).
4
The majority, in ultimately concluding that Albert Boehnlein failed to articulate a change in
circumstance, does not comment on the disjunctive nature of this statutory requirement. Under
MCL 722.27(1)(c), his burden was to articulate a change in circumstances or proper cause for the
change of custody.
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majority concedes, case law clearly holds that a trial court cannot order a change of custody
without first holding a hearing.5 However, I recognize the possibility that a trial court’s decision
not to hold a hearing, when denying a motion for change of custody on the basis of voluminous
documentary evidence already submitted, should be addressed as a separate question.
Consequently, I believe it necessary to examine the case law concerning child custody hearings to
determine whether the trial court erred in denying the motion for change of custody on the basis
of documentary evidence alone, without first holding a hearing.
The reasoning behind three significant cases in the area of child custody provide insight
into why trial courts hold evidentiary hearings in these matters. In the first case, Mann v Mann,6
though the mother and father retained joint legal custody of their two minor sons following their
divorce, the mother had physical custody. Approximately seventeen months after the divorce,
the father moved for a change of physical custody, alleging that his sons were being exposed to
“illegal activities” and other unsavory conduct in their mother’s home, and that the children’s
education was suffering.7 The friend of the court referee held an evidentiary hearing on the
motion and considered numerous psychological reports before recommending that the trial court
grant the motion.8 Though the mother objected to the referee’s report and recommendation and
requested that the trial court conduct a de novo hearing on the motion,9 the trial court adopted the
referee’s recommendation and granted the motion for the temporary change in custody without
conducting a hearing. After holding an evidentiary hearing several months later, the trial court
entered an order granting the father sole legal custody – even though he had requested that the
trial court continue joint legal custody – as well as physical custody, without explaining its
reasoning.10
On appeal, the mother in Mann argued that the trial court could not change custody, even
in an interim order, without first holding a hearing.11 This Court agreed, noting that in drafting
MCL 722.27(1)(c), the section of the child custody act also at issue in this case, the Legislature
intended for inertia to rule custody matters.12 In other words, the Legislature intended to
5
See, generally, Dick v Dick, 210 Mich App 576, 587; 534 NW2d 185 (1995) (MCR 3.210[C]
“requires a hearing in a contested case.”); Mann v Mann, 190 Mich App 526, 532-533; 476
NW2d 439 (1991) (trial court erred in entering interim order changing custody without holding
hearing); Pluta v Pluta, 165 Mich App 55, 61; 418 NW2d 400 (1987) (trial court erred in failing
to hold evidentiary hearing to address best interests factors before entering order changing
custody); Stringer v Vincent, 161 Mich App 429, 432-433; 411 NW2d 474 (1987) (trial court
erred in relying on referee’s report and recommendation, which the parties had not stipulated was
accurate, and not holding hearing before ordering change in custody).
6
Mann, supra at 527-528.
7
Id. at 528.
8
Id.
9
See MCL 552.507(5).
10
Mann, supra at 528, 538.
11
Id. at 529.
12
Id. at 531.
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minimize disruptions to a child’s living arrangement unless they were necessary.13 By granting
the motion for change of custody without holding a hearing, the trial court had “frustrate[d]” this
legislative purpose and made it impossible for the trial court to find the facts necessary to
conclude whether to order a change of custody.14 Further, by changing legal custody without a
request by either party to do so, the trial court effectively denied the mother her due process
rights to notice and an opportunity to be heard.15 Consequently, though the failure to hold a
hearing before the interim order did not merit reversing the trial court because it did eventually
conduct such a hearing, the subsequent denial of a hearing on legal custody required reversal.16
The second important case concerned a different aspect of a motion for change of
custody. In Rossow v Aranda,17 for reasons unstated in the appellate opinion, the mother
stipulated to give the father physical custody of their oldest daughter. Evidently having second
thoughts about this arrangement, the mother moved for a change of custody.18 The trial court,
however, denied the motion.19 On appeal, the mother apparently not only challenged the trial
court’s determination that the alleged grounds for setting aside the stipulation and granting the
motion – duress or coercion – did not constitute proper cause or changed circumstance, but also
challenged the trial court’s refusal to consider the best interests factors.20 This Court, however,
held that the trial court did not have an obligation to make findings on the best interest factors,
reasoning:
The plain and ordinary language used in MCL 722.27(1)(c); MSA
25.312(7)(1)(c) evinces the Legislature’s intent to condition a trial court’s
reconsideration of the statutory best interest factors on a determination by the
court that the party seeking the change has demonstrated either a proper cause
shown or a change of circumstances. It therefore follows as a corollary that where
the party seeking to change custody has not carried the initial burden of
establishing either proper cause or a change of circumstances, the trial court is not
authorized by statute to revisit an otherwise valid prior custody decision and
engage in a reconsideration of the statutory best interest factors.[21]
13
Id.
14
Id. at 532.
15
Id. at 538.
16
Id. at 533, 538.
17
Rossow v Aranda, 206 Mich App 456, 457; 522 NW2d 874 (1994).
18
Id.
19
Id.
20
Id.
21
Id. at 458.
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As a result, having already concluded that there was no basis in the record to support coercion or
duress, this Court affirmed the trial court, essentially determining that the failure to hold a
hearing was harmless under the circumstances of the case.22
The third important case, which built on Mann’s foundation and on which Albert
Boehnlein now relies, is Schlender v Schlender.23 At issue in Schlender was a local court rule
called an “administrative policy”24 that required a parent moving for change of custody to make
an offer of proof. From this offer, the judge handling the case would determine whether, if it
were to hold a hearing, it was likely that the parent would be able to sustain the burden of proof
necessary to support a change of custody.25 If the judge concluded that the parent would not be
able to sustain the burden of proof, the motion would be denied summarily.26 Because of this
local court rule, the trial court in Schlender summarily denied the father’s motion for change of
custody even though he and the mother had submitted significant materials as an offer of proof.
On appeal, this Court’s primary concern was that the circuit court had attempted to promulgate a
local court rule without obtaining the necessary approval or going through proper channels.27
However, and I believe this to be a critical point, this Court in Schlender also commented:
We find that the petitioner in a custody matter cannot be deprived by local
court rule of an evidentiary hearing. This Court has held that it is improper for a
trial judge to decide the issue of custody on the pleadings and the report of the
friend of the court when no evidentiary hearing was held. Stringer v Vincent, 161
Mich App 429, 432; 411 NW2d 474 (1987). The trial court must determine the
best interests of the child as defined in MCL 722.23; MSA 25.312(3), and must
make findings on each factor. A hearing is required before custody can be
changed on even a temporary basis. Mann v Mann, 190 Mich App 526, 529-530;
476 NW2d 439 (1991). The court rules also recognize the right to a hearing in
custody cases. MCR 3.210(C).
The policy at issue eliminates the right of a party seeking a change of
custody to have an evidentiary hearing. Because postjudgment motions in
domestic relations actions are governed by court rule, see MCR 3.213, a local
court rule regarding domestic relations actions is invalid.[28]
Thus, this Court remanded the case to the trial court for further proceedings, presumably so that
the father could have a hearing before the trial court ruled on the motion for change of custody.29
22
Id. at 457, 458.
23
Schlender, supra.
24
Id. at 232.
25
Id. at 231.
26
Id.
27
Id. at 232-233.
28
Id. at 233 (emphasis added).
29
Id. at 233-234.
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Notably, though he concurred in the remand, Judge Kelly wrote separately to question whether a
hearing would be required in a case in which the parties had no additional evidence to offer.30
What, then, are the lessons that can be drawn from these three opinions? Mann holds that
there can be no change in custody without a hearing, a scenario not at issue in this case because
the trial court denied Albert Boehnlein’s motion. Nevertheless, Mann is relevant because it
emphasizes that when a trial court must make a factual determination in a custody matter, an
evidentiary hearing is critical to the trial court’s ability to establish a record from which it can
draw its conclusions. Mann also warns courts to be vigilant about parents’ rights to due process
and underscores the role hearings play in affording those due process rights.
The brevity of the Rossow opinion makes it less than comprehensive on any matter. If
read only casually, it would be easy to conclude that Rossow stands for the proposition that a
hearing is not necessary in every case. The Rossow Court concluded that the trial court did not
commit error requiring reversal when it failed to hold a hearing on the best interest factors.
However, when read carefully, I believe that Rossow actually suggests that the Legislature
intended to allow trial courts to consider separately some of the constituent issues relevant to
determining whether to change custody. Though not directly addressing the proper cause or
change of circumstances language in MCL 722.27(1)(c), Rossow classifies these considerations
as threshold issues. Thus, the least strained and most natural reading of Rossow, at least in my
view, is that a parent requesting the change of custody must pass each threshold before the trial
court is obligated to take any steps with regard to the next consideration.
The critical issue that Rossow does not answer is the depth and breadth of the allegations
of proper cause or changed circumstances necessary to pass the first threshold and move to a
hearing. Schlender helps fill this void, suggesting that the threshold is a very low one. As this
Court commented, custody matters simply are not determined on the basis of the pleadings.31 An
evidentiary hearing is the proper place to test factual matters.32 I agree with Judge Kelly’s
concurrence in Rossow, which suggested that there may be some inefficiency inherent in holding
a hearing when the bulk of the evidence is documentary and introduced in conjunction with the
motion itself. However, as this Court is so often inclined to note, trial courts have the unique
30
Id. at 234.
31
Id. at 233; accord Cochrane v Brown, 234 Mich App 129, 132; 592 NW2d 123 (1999) (trial
court could not limit review of referee’s recommendation to transcripts when statute provided for
hearing de novo); Dresser v Dresser, 130 Mich App 130, 135; 342 NW2d 545 (1983)
(emphasizing that there must be a hearing before a trial court may modify a child support order).
32
I do not suggest that MCR 2.116(C)(10) applies to custody disputes. However, if I were
inclined to conclude that a motion for change of custody could be subject to a summary
procedure akin to a motion for summary disposition under MCR 2.116(C)(10), the trial court in
this case went well beyond the bounds of the analysis that sort of decision requires. Rather than
determining whether there was a factual dispute in the record that should be resolved following a
hearing, the trial court directly resolved the parties’ dispute, making factual findings and
conclusions of law, which it could not do when ruling on a motion for summary disposition.
Manning v Hazel Park, 202 Mich App 685, 689; 509 NW2d 874 (1993).
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ability to weigh factors that do not reveal themselves in a cold record.33 To give up an
opportunity to judge and weigh issues like credibility, which is often critical in highly emotional
custody cases, by denying an evidentiary hearing may be a costly mistake because the ultimate
issue at stake – a child’s welfare – is so very important.
In the end, holding a hearing on every change of custody motion might be the most
efficient use of judicial resources and the parties’ time because whether to hold a hearing will no
longer be subject to dispute.34 There is no doubt that, in this case at least, debating whether to
hold a hearing occupied a significant amount of time and concern. A legal rule that is easy to
apply consistently will eliminate the potential for dispute on this issue. Consistent with
Schlender, I have confidence that the existing sanctions available to the trial courts are adequate
to address motions to change custody that are frivolous or intended to harass.35 Though the
majority fears that holding evidentiary hearings will disrupt children’s lives by changing custody
too frequently and unnecessarily, there is a distinction between holding a hearing and making the
decision whether to order a change of custody. If the trial court, following a hearing, determines
that there is a change of circumstance or proper cause to change custody, those different
circumstances or proper cause mandate the change of custody, not the fact that the trial court held
a hearing. Certainly, within the parameters the Legislature set for changing custody, even the
most zealous child welfare advocates would not object to a change of custody following a
hearing when there is proof of at least one of these two statutory bases for changing custody.
Further, though the majority reasons that MCR 3.210(C) does not apply in this specific
postjudgment context, I disagree. I conclude that MCR 3.210(C) supports my view that a hearing
was necessary in this case. MCR 3.210(C) states that a trial court “must” hold a hearing within
fifty-six days of when custody of a minor child is in dispute,36 including when there is a motion
for a change of custody.37 Case law suggests that MCR 3.210(C), which previously appeared as
MCR 2.306(F), governs a motion for change of custody after the trial court has already entered a
divorce judgment, despite the fact that other provisions38 within the same court rule clearly apply
only to pre-judgment divorce cases. For instance, both Schlender, which referred to MCR
3.210,39 and Mann, which relied on MCR 3.206(F),40 implicitly concluded that this special
domestic relations rule concerning child custody hearings applied even though the trial court in
33
See People v Kowalski, 236 Mich App 470, 475; 601 NW2d 122 (1999); see also MCR
2.613(C).
34
Recent changes to the court rules, discussed infra, would make it unnecessary to hold a hearing
in every case after July 1, 2001, even under my analysis.
35
Schlender, supra at 233-234.
36
MCR 3.210(C)(1) and (2).
37
MCR 3.210(C)(1)(b).
38
See MCR 3.210(A) (concerning hearings before the judgment of divorce).
39
Schlender, supra at 233.
40
Mann, supra at 534.
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each case had already entered a divorce judgment. Otherwise, this Court in Schlender and Mann
might have relied on MCR 2.119 to suggest that a hearing was not absolutely critical.
Additionally, MCR 3.213 indicates that MCR 2.119, a rule of civil procedure governing
motion practice, controls “[p]ostjudgment motions in domestic relations cases . . . .” However,
MCR 3.201(A)(2)(a) suggests that a postjudgment motion for a change of custody should be
determined according to the rules set out in subchapter 3.200, which includes the hearing
requirement in MCR 3.210(C). If MCR 3.210(C) does apply to a post-divorce motion for change
of custody under the current structure of the courts rules, and I believe that Schlender, Mann, and
MCR 3.201(A)(2) compel this conclusion, then the trial court’s obligation to hold an evidentiary
hearing is unambiguous and, therefore, simply not subject to debate.
When I attempt to synthesize the meaning of Mann, Rossow, and Schlender in light of
MCR 3.210(C) and the plain language of and purpose behind MCL 722.27(1)(c),41 I arrive at a
very simple legal principle: if the motion for change of custody alleges proper cause or a change
of circumstance supporting a change of custody, the trial court must hold an evidentiary hearing
to determine whether that proper cause or change of circumstance actually exists. Only if the
movant does not allege proper cause or a change of circumstance, the specific statutory grounds
for changing custody, would there be reason to decline to hold a hearing. In other words, a trial
court, regardless of its substantive decision to grant or deny the motion for change of custody,
cannot avoid the hearing requirement as long as the moving party alleges proper cause or a
change of circumstance.42 If the trial court finds on the basis of the evidence adduced at the
hearing and introduced into the record that proper cause or a changed circumstance does exist,
the trial court must then proceed to the best interests analysis.
III. Application
If this rule of law is applied to the facts of this case, it is clear that the trial court
committed clear legal error in denying the evidentiary hearing. The motion for change of
custody, though it rambles, rehashes irrelevant procedural history, and is not always clear,
alleged that facts existed to support the statutory grounds that must be proven to change custody.
For instance the allegation that Albert Boehnlein and his new wife had recently arranged their
schedules so that they could provide more direct care for his son and that they would enroll him
in a different and, in their opinion, better educational/therapeutic program suggested both proper
cause and a changed circumstance.
41
See id. at 531.
42
I acknowledge that there is debate concerning whether a hearing is necessary when the parties
stipulate to the change of custody. See Phillips v Jordan, 241 Mich App 17, 34; 614 NW2d 183
(2000) (Holbrook, Jr., P.J., dissenting); Terry v Affum (On Remand), 237 Mich App 522, 535;
603 NW2d 788 (1999). However, because the contentious facts of this case do not suggest that
the parties agree on even simple matters, much less that they stipulated to change custody, this
Court is not called on to resolve this issue.
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Even if the trial court would have ultimately determined that these allegations were not
proven or that the best interests factors did not favor changing custody,43 this fervent dispute
between the parents was the proper subject of a hearing. In Winn v Winn,44 another custody case
involving a child with special needs, the father was able to achieve some success in controlling
the child’s seizures with a specific diet and, therefore, moved for a change of custody so that he
could be more involved in the child’s daily care.45 While this Court concluded that the trial court
misapplied the best interests factors in granting the motion,46 there was no debate over whether
the trial court erred in holding a hearing, which involved considering the child’s special health
and education needs, before ruling on the motion.47 As in Winn, the trial court here should have
held a hearing.
There is a strong and understandable temptation to give in to frustration in a difficult and
contentious custody case such as this, but in my view trial courts must resist this temptation for
the sake of the child at the center of the dispute. The ABA program coupled with day-to-day
reinforcement of ABA principles in Albert Boehnlein’s home may not actually be any more
effective in helping the child progress than having the child attend the TEEACH program while
living with Lisa Boehnlein. Nevertheless, that there is a dispute concerning whether this change
in custody and educational program might benefit the child only underscores the need for a
hearing to resolve this issue.
IV. MCR 3.210(C)(7)
The majority comments that the trial court in this case anticipated the Michigan Supreme
Court’s recent amendment of MCR 3.210(C), following the new procedure set out in new
subsection (7) in this case. While that may be so, from my perspective, MCR 3.210(C)(7) does
not change the necessity of a hearing in this case.
MCR 3.210(C)(7), when it becomes effective July 1, 2001, will provide:
In deciding whether an evidentiary hearing is necessary with regard to a
postjudgment motion to change custody, the court must determine, by requiring an
offer of proof or otherwise, whether there are contested factual issues that must be
resolved in order for the court to make an informed decision on the motion.
My conclusion that a trial court may make a threshold decision concerning whether to hold an
evidentiary hearing on the basis of whether the parent has alleged a change of circumstance or
proper cause is similar to the way this new court rule focuses on whether there is a question of
fact to be resolved at an evidentiary hearing. The similarities are also striking in light of my
observation that case law suggests that an evidentiary hearing is unlikely to be necessary when
43
See Phillips, supra at 241; MCL 722.25(1).
44
Winn v Winn, 234 Mich App 255, 257-258; 593 NW2d 662 (1999).
45
Id.
46
Id. at 260-262, 271.
47
Id. at 258-268.
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the parties agree to a change of custody. Absent the parties’ agreement to a change of custody,
allegations that there are changed circumstances or proper cause for a change of custody will
logically involve a factual dispute in most cases. Nevertheless, I have applied established,
binding case law, and not this new court rule, because MCR 3.210(C)(7) did not exist, much less
become effective, at the time the trial court declined to hold the evidentiary hearing in this case.
Therefore, MCR 3.210(C)7) neither could support nor contradict the trial court’s authority to
deny the evidentiary hearing in this case.
Even if MCR 3.210(C)(7) did apply to this case, it would not compel a different result.
The plain text of MCR 3.210(C)(7) only permits the trial court to determine from an offer of
proof or “otherwise” whether there is a factual dispute before granting or denying an evidentiary
hearing on a postjudgment motion for a change of custody. The trial court went well-beyond the
authority this court rule confers, essentially determining that there was a factual dispute and then
resolving it in favor of Lisa Boehnlein.
MCR 3.210(C)(7) qualifies the nature of the factual dispute meriting an evidentiary
hearing as those “issues that must be resolved in order for the court to make an informed decision
on the motion.” This suggests that there are some disputed factual issues that may not need to be
addressed at an evidentiary hearing because the trial court is able to make an “informed decision”
without the hearing. However, because the circumstances of the dispute in this case are complex,
I see little possibility that the trial court was able to make an “informed decision” on the
substance of Albert Boehnlein’s allegations without an evidentiary hearing. In this regard, I note
that the trial court relied in part on a quasi-estoppel theory to avoid a deeper analysis, likely
because an evidentiary hearing was necessary before it could determine whether the opportunity
for increased home care and a different learning environment would be in the child’s best
interests, meriting a change of custody.
For the foregoing reasons, I would reverse and remand for an evidentiary hearing.
/s/ William C. Whitbeck
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