STATE OF MICHIGAN
COURT OF APPEALS
December 21, 2010
Genesee Circuit Court
LC No. 07-278940-DP
Before: MARKEY, P.J., AND WILDER AND STEPHENS, JJ.
Plaintiff appeals as of right an order of the circuit court that adopted the recommendation
of the referee, which granted defendant sole legal and physical custody of their son, Noah. We
vacate and remand.
I. CHILD CUSTODY
Plaintiff argues that the trial court erred when it adopted the referee’s recommendation,
which granted sole legal and physical custody to defendant. We agree. All custody orders must
be affirmed on appeal unless the trial court’s findings were against the great weight of the
evidence, the court committed a palpable abuse of discretion, or the court made a clear legal
error on a major issue. MCL 722.28; Pierron v Pierron, 486 Mich 81, 85; 782 NW2d 480
(2010). A trial court’s findings regarding the existence of an established custodial environment
and with respect to each factor regarding the best interest of a child should be affirmed unless the
evidence clearly preponderates in the opposite direction. Berger v Berger, 277 Mich App 700,
705; 747 NW2d 336 (2008). A trial court’s discretionary rulings, such as to whom to award
custody, are reviewed for an abuse of discretion. Id. “An abuse of discretion occurs when the
decision results in an outcome falling outside the principled range of outcomes.” Woodard v
Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
The Child Custody Act of 1970, MCL 722.21 et seq., governs child custody disputes
between parents, agencies, or third parties. Berger, 277 Mich App at 705. The purpose of the
Act is to promote the best interests of children. Harvey v Harvey, 470 Mich 186, 192; 680
NW2d 835 (2004). However, before the best interest of a child is examined, a court must
determine whether an established custodial environment exists. Brausch v Brausch, 283 Mich
App 339, 356 n 7; 770 NW2d 77 (2009).
A. ESTABLISHED CUSTODIAL ENVIRONMENT
An established custodial environment exists if
over an appreciable time the child naturally looks to the custodian in that
environment for guidance, discipline, the necessities of life, and parental comfort.
The age of the child, the physical environment, and the inclination of the
custodian and the child as to permanency of the relationship shall also be
considered. [MCL 722.27(1)(c).]
In other words, “[a]n established custodial environment is one of significant duration in which a
parent provides care, discipline, love, guidance, and attention that is appropriate to the age and
individual needs of the child. It is both a physical and a psychological environment that fosters a
relationship between custodian and child and is marked by security, stability, and permanence.”
Berger, 277 Mich App at 706.
Here, the trial court found that an established custodial environment existed solely with
The child has lived with Defendant his entire life.
For the approximately 2 and ½ years that the parties cohabitated, the child lived
with both parents. Both before and after the parties cohabitated, Plaintiff has
spent a liberal amount of time with the child. This includes both overnights and
caring for the child while Defendant worked and went to school at night. Plaintiff
has made it clear that he is always available for the child and has sought custody
from the inception of this litigation.
However, based upon the circumstances of this case, where the child has always
resided with Defendant and that he looks to her for daily guidance, discipline, the
necessities of life and parental comfort, the Court finds that an established
custodial environment exists with her.
This finding, however, is against the great weight of evidence. The court seemed to have
made a conclusion that, simply because the child has resided with defendant, it necessarily meant
that an established custodial environment existed solely with defendant. This fact is clearly
relevant in determining if an established custodial environment existed with respect to defendant,
but it does not preclude a finding that a custodial environment existed with plaintiff as well. An
established custodial environment can exist with more than one home, Rittershaus v Rittershaus,
273 Mich App 462, 471; 730 NW2d 262 (2007), and with more than one parent, Berger, 277
Mich App at 707.
Noah was born on February 21, 2001. At the time, plaintiff and defendant maintained
separate residences and they continued to do so until May 2005, when Noah was four years old.
Defendant’s assertion that Noah spent only a couple of overnights with plaintiff during this time
is not supported by the record. When defendant testified regarding overnights, she clarified that
those were the number of overnights that plaintiff had with Noah without defendant being
present – not the total number of overnights plaintiff had with Noah. Both parties have testified
that they frequently spent the night at each other’s home. Thus, the fact that plaintiff only had a
couple overnights alone with Noah during this time period is not outcome determinative.
The parties presented vastly different testimony as to the amount of contact between
plaintiff and his son. Plaintiff testified that, during this time period, he had Noah virtually every
day while defendant worked Defendant testified that Noah was at daycare this entire time,
unless Noah was sick. , defendant testified that it was only in the case of illness that Noah would
be with plaintiff during the day. However, when questioned about specifics, defendant conceded
that Noah only was at daycare for the first one and one-half years of his life, with plaintiff caring
for Noah after this time. Thus, even by defendant’s own testimony, it appears that from the time
that Noah was one and one-half years old until he was four years old, he was with plaintiff
during the day while defendant worked. This view is further supported from the testimony of
plaintiff’s neighbor, who saw plaintiff with Noah “all the time” at plaintiff’s residence during the
day (and had never seen defendant before these proceedings) and by the nearby Subway
restaurant manager, who saw plaintiff and Noah dine at the restaurant three to five times every
week starting in approximately 2002. Additionally, there was family videotape admitted into
evidence that showed a young Noah crawling, walking, counting, etc. inside plaintiff’s house
with defendant not present. All of this evidence considered together makes it very clear that
regardless of how many sole overnights plaintiff had with Noah, after Noah was one and onehalf years old, plaintiff was a regular presence in Noah’s life and provided for Noah’s needs.
The trial court, in its conclusion that an established custodial environment existed only
with defendant, appeared to have ignored the time where the parties lived together. In May
2005, plaintiff and defendant moved into a house together in Grand Blanc, Michigan. According
to plaintiff, nothing changed regarding the amount of time he spent with Noah after the move.
Noah would still, for the most part, be with plaintiff during the day, while defendant was away at
work. Additionally, defendant attended school at night for two nights a week from 2003 until
2007. When defendant was gone, it is undisputed that plaintiff cared and provided for Noah, as
well as defendant’s other child from another relationship, Taylor, when Taylor was around.1
Plaintiff’s caring for Noah continued until January 2008, when defendant moved out of the house
and moved back with her parents, taking Noah and Taylor with her. Thus, from when Noah was
one and one-half years old up until nearly seven years old, plaintiff’s presence in Noah’s life was
Shortly after defendant moved out, a temporary custody order was entered, which
allowed for plaintiff to have parenting time on alternating weekends and every Wednesday
evening. In addition to this time, plaintiff, with the consent of the school and the circuit court,
frequently visited with Noah at lunchtime at school. This parenting-time schedule was continued
after the trial court entered its order granting full legal and physical custody to defendant.
Accordingly, since January 2008 until the time of the trial court’s opinion in March 2010,
plaintiff has had a much-reduced time with Noah.
Taylor began regularly living with plaintiff and defendant in 2006.
Thus, when viewing all of the evidence, we conclude that the evidence preponderates in
the opposite direction from the trial court’s finding that an established custodial environment
existed solely with defendant. There should be little doubt that an established custodial
environment existed, at a minimum, with plaintiff prior to January 2008. Plaintiff’s constant
presence, caring, and providing, from when Noah was one and one-half years old until he was
nearly seven years old, was profound. Plaintiff’s reduced parenting time since January 2008 is
relevant because a custodial environment can be established through a custody order, temporary
or not. Berger, 277 Mich App at 707. But custody orders, by themselves, do not establish a
custodial environment. Bowers v Bowers, 198 Mich App 320, 325; 497 NW2d 602 (1993). And
“[t]he existence of a temporary custody order does not preclude a finding that an established
custodial environment exists with the noncustodian or that an established custodial environment
does not exist with the custodian.” Berger, 277 Mich App at 706-707. The key is to examine the
relationship the child has with each parent. Bowers, 198 Mich App at 325. There was no
evidence presented that Noah did not continue to look to plaintiff for “guidance, discipline, the
necessities of life, and parental comfort” after defendant moved out of the Grand Blanc house.
In fact, Noah expressed that he missed his father and his room in the Grand Blanc house.
The evidence clearly preponderates that plaintiff’s reduced parenting time with Noah did
not destroy the established custodial environment that existed before January 2008. Plaintiff
continued to care and provide for Noah, albeit in a necessarily reduced capacity. In short, the
five and one-half years of constant presence was not negated simply because plaintiff had
reduced time with Noah for the last two years. Accordingly, the trial court’s finding that no
established custodial environment existed with plaintiff was against the great weight of evidence.
Rather, the record demonstrates that there was an established joint custodial environment in this
case. Consequently, as explained below, the trial court was not permitted to alter the custody
arrangement absent clear and convincing evidence.
B. BEST-INTEREST FACTORS
When there is a joint established custodial environment, neither parent’s custody may be
disrupted absent clear and convincing evidence. Powery v Wells, 278 Mich App 526, 529; 752
NW2d 47 (2008). Here, even though the trial court found that an established custodial
environment only existed with defendant, the court noted that, regardless of any established
custodial environment, the best-interest factors favored vesting sole custody with defendant by a
clear and convincing standard. We disagree.
The best-interest factors to be evaluated are:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child
love, affection, and guidance and to continue the education and raising of the
child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the
child with food, clothing, medical care or other remedial care recognized and
permitted under the laws of this state in place of medical care, and other material
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed
custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and
encourage a close and continuing parent-child relationship between the child and
the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular
child custody dispute. [MCL 722.23.]
The court found that factor (a) favored neither party, and plaintiff does not argue against
The trial court found that factor (b) favored defendant. The court found that both parties
“have equal capacity and disposition to provide the child with love and affection.” However, the
court had concerns for both parents with respect to their ability to provide guidance to Noah.
The court had concerns regarding defendant’s “proclivities towards an active social life” and
plaintiff’s overbearing means of providing guidance. The court, in the end, was more concerned
with plaintiff’s behavior and concluded that the factor favored defendant. Given that the court
seemingly only slightly favored defendant in this factor, this finding was not against the great
weight of evidence. The court identified concerns with each party and ultimately found that its
concerns for plaintiff slightly outweighed its concerns for defendant. The record supports the
court’s concerns, and while we may not necessarily agree with how the court balanced the
concerns, the evidence does not clearly preponderate in the opposite direction. Accordingly, the
court’s finding for this factor should not be disturbed.
The trial court found that factor (c) favored defendant. Factor (c) addresses the parties’
capacity and disposition to provide food, clothing, medical care, and other material needs to the
child. The court found that plaintiff has completely failed to support Noah in the environment he
spends most of his time – with his mother. In support, the court noted that plaintiff has made
only a single child support payment of $224.77 and is in arrears in excess of $15,000. Given
plaintiff’s reluctance or inability to pay the child support payments, the court’s finding was not
against the great weight of evidence and should not be disturbed.
The court found that factor (d), which measures the length of time the child has spent in a
stable, satisfactory environment, favored plaintiff. However, this finding was “tempered” by the
court’s concerns with the means that plaintiff collected evidence for the custody proceedings.
Plaintiff does not dispute the ultimate finding but does take exception to this “tempering.” We
agree. How plaintiff collected evidence is not relevant to this factor, which only measures the
“[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability
of maintaining continuity.” Thus, the court’s finding, favoring plaintiff, should not be disturbed.
Plaintiff does not dispute the trial court’s finding for factor (e), which favored plaintiff.
The trial court found the parties equal under moral fitness factor (f). This finding,
however, is against the great weight of evidence. The court noted its concern regarding
defendant’s alcohol abuse and lifestyle choices and plaintiff’s obsessive behavior. However,
[f]actor f (moral fitness), like all the other statutory factors, relates to a person's
fitness as a parent. To evaluate parental fitness, courts must look to the parentchild relationship and the effect that the conduct at issue will have on that
relationship. Thus, the question under factor f is not “who is the morally superior
adult;” the question concerns the parties’ relative fitness to provide for their child,
given the moral disposition of each party as demonstrated by individual conduct.
We hold that in making that finding, questionable conduct is relevant to factor f
only if it is a type of conduct that necessarily has a significant influence on how
one will function as a parent. [Fletcher v Fletcher, 447 Mich 871, 886-887; 526
NW2d 889 (1994) (emphasis in original).]
While the trial court’s concerns are valid, only the concern regarding defendant’s drinking and
lifestyle choices directly affects a parent’s ability to function as a parent. On the other hand, the
overzealousness that plaintiff has for collecting evidence to be used in this custody proceeding
does not affect his ability to function as a parent. The court tried to create a link when it stated
that plaintiff’s behavior “impacts parenting because of its extensive impact on defendant’s life,
of which the child is a part.” However, as the Fletcher Court noted, the only concern is how this
conduct influences how that person acts as a parent. Because there was no evidence introduced
that showed how plaintiff’s fervor in collecting evidence affected his ability to function as a
parent, the court’s findings were against the great weight of evidence. Additionally, the court’s
conclusory finding, that defendant’s parenting was affected by plaintiff’s actions, was not
supported by the evidence.
Factor (g) deals with the physical and mental health of the parties. The trial court
compared defendant’s immaturity and alcohol abuse with plaintiff’s obsessive behavior. The
court, while acknowledging that there was no expert psychological or psychiatric evidence, was
more concerned with plaintiff’s mental health and found this factor in favor of defendant. The
court relied on two examples of how plaintiff’s obsessive behavior affected his ability to parent.
First, the court noted that plaintiff was visiting Noah nearly every day at lunchtime at school.
The court feared that such visits were unhealthy for the child’s normal psychological
development. However, without any expert testimony expressing this concern, the trial judge
ventured into impermissible speculation. See Adams v Adams, 100 Mich App 1, 14; 298 NW2d
871 (1980). Second, the trial court took issue with plaintiff coaxing Noah to run on a treadmill
by paying him a penny a minute. The court went out of its way to note that there is nothing
wrong with a parent paying attention to nutrition, exercise, lifestyle and general health,
especially when a child is overweight, as is the case here. However, the court objected to
plaintiff’s means, finding that plaintiff had an excessive focus, which “is unhealthy to a child’s
self-esteem and psychological well-being.” Assuming arguendo that plaintiff has an obsessive
personality that manifests as having an “excessive focus,” we find no evidence showing how this
behavior was worse for Noah than defendant’s alcoholic and partying behavior.
Furthermore, defendant had a history of not being around the home based, in part, on a
desire to be away partying and drinking. She would often come home drunk, and when she did
come home, it was sometimes after sunrise the following day. Additionally, defendant was a
smoker, who smoked constantly inside the car in the presence of Noah. Although not required to
note every fact when it makes its findings, Fletcher, 447 Mich at 883-884, the court omitted
defendant’s dependence on smoking. This dependence has an adverse affect on Noah through
the constant exposure to the second-hand smoke. Aside from the known health risks with such
exposure, there was evidence introduced that Noah suffers from chronic nosebleeds and should
not be exposed to such smoking. Accordingly, when considering the physical and mental health
of the parties with respect to how their respective health impacts their ability to function as
parents, the court’s finding, that defendant was favored on this factor, was against the great
weight of evidence. Instead, the evidence showed, at a minimum, that the parties were equal on
this factor or, more likely, that the factor favored plaintiff.
Related to factor (h), the home, school, and community record of the child, the court
found the parties equal. The court specifically found that Noah was performing about the same
both academically and behaviorally regardless of the time period or which parent was in the
household. Part of the difficulty in assessing this factor is that the grading system changed when
Noah entered third grade in the Clio school district. In third grade, he started getting traditional
letter grades (A, B, C, D, E), as opposed to the more amorphous grades from the Grand Blanc
S: Consistently completes tasks with accuracy.
concepts. Independent learner.
Applies previously learned
EP: Meets grade level criteria. Solves problems with occasional assistance.
Usually completes tasks with accuracy.
BP: Becoming aware of grade level criteria. Benefits from monitoring and help.
AC: difficulty with grade level criteria. Consistently needs monitoring and help.
Accordingly, the court’s finding that each party was equal was not against the great weight of
evidence and should not be disturbed.
Related to factor (i), the reasonable preference of the child, the court interviewed Noah
but found that it did not receive useful information. Without any record of the interview, there is
nothing to question this finding.
Factor (j) addresses the willingness and ability to facilitate and encourage a parent-child
relationship with the other parent. The Court found that plaintiff’s behavior in monitoring
defendant’s behavior, lifestyle and activities was indicative of an unwillingness to facilitate a
relationship between the child and defendant. While there was also evidence that defendant took
certain actions to avoid Noah’s contact with his father, this Court cannot say that the trial court’s
finding that plaintiff’s spying was more detrimental to the parent child relationship than
defendant’s behavior was against the great weight of the evidence. Consequently, the trial court
did not err in determining that this factor favored defendant.
Factor (k) addresses domestic violence. The court found this factor essentially equal and
not significant in the overall analysis. Both parties alleged instances of domestic abuse, so the
court’s finding is not against the great weight of evidence and should not be disturbed.
Factor (l) allows a court to consider any other factor it deems relevant in determining the
best interests of the child. Here, the court found that Noah being with Taylor, his half-sister,
benefited Noah. Accordingly, the court found this factor to weigh in favor of defendant, with
whom Taylor resided. Since it generally is in the best interest to keep siblings together, Foskett v
Foskett, 247 Mich App 1, 11; 634 NW2d 363 (2001), this finding is not against the great weight
The trial court then evaluated these best-interest factors and decided that the evidence
showed, not only by a preponderance of the evidence, but by a clear and convincing standard,
that Noah’s best interests resided with defendant having sole legal and physical custody. Given
our determination that many of the court’s findings related to the best-interest factors were
against the great of evidence, a remand is necessary. Regardless of how plaintiff acted towards
defendant in the pursuit of this custody case, it is apparent that the evidence does not favor
defendant by a clear and convincing standard. While the trial court was free to evaluate and
weigh plaintiff’s obsessive behavior, it could only do so with respect to his ability to function as
a parent. Fletcher, 447 Mich at 886-887. The court impermissibly ventured into other areas of
analyses. Accordingly, we remand to the circuit court so it can reevaluate and weigh the factors
consistent with this analysis.
C. CUSTODY CONCLUSION
In sum, the trial court’s finding that an established custodial environment existed solely
with defendant was against the great weight of evidence, when the evidence showed that there
was an established joint custodial environment. Additionally, the court’s finding, that the
evidence showed by a clear and convincing standard that the best-interest factors favored
defendant was against the great weight of evidence. On remand, the court is to reevaluate these
aspects consistent with the provided analysis.
II. REFEREE BIAS
Plaintiff argues that the referee’s bias denied him his right to due process. We disagree
because the de novo circuit court trial cured any bias at the referee hearing. Unpreserved
constitutional issues are reviewed for plain error affecting substantial rights. In re Williams, 286
Mich App 253, 274; 779 NW2d 286 (2009).
A fundamental component of procedural due process is the right to a fair and impartial
decision maker. Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995). One
way to prove that a decision maker was not impartial is to demonstrate actual bias. Hughes v
Almena Twp, 284 Mich App 50, 70; 771 NW2d 453 (2009).
Here, at the conclusion of the December 18, 2008, referee hearing, the recording
equipment stayed on after the parties left. Referee Odette participated in a conversation with
another referee that was recorded:
But, anyways, yeah, this one is – is just so disciplined,
Barney [the plaintiff’s attorney]. It was transferred to Judge Newblatt –
REFEREE KRELLWITZ: Oh.
And he made a big stink about he wanted me to keep
the case. And so now it – and he’s – we’re still on his case.
REFEREE KRELLWITZ: I – I heard him doing – doing shit with the transcript,
somebody was –
Ohhhh, oh, my God. On and on and on –
REFEREE KRELLWITZ: You got your decision made already, don’t you?
REFEREE KRELLWITZ: Before –
– from –
Yeah. Why he is doing – and if he can’t tell that from
REFEREE KRELLWITZ: Body language?
– from me and my what I, you know, how I rule, and –
he’s a totally [sic] idiot or he doesn’t care. He just wants to –
REFEREE KRELLWITZ: Get –
– and you know it’s kind of sad because at one – one
of the hearings he – he’s getting paid by the – the – his mother, this guy is a
REFEREE KRELLWITZ: Uh-huh.
And he – he from – I – I – I – I didn’t argue – I should
have allowed it into evidence just ‘cause I was so disgusted by it, but he has
been audio and videotaping this woman, who wasn’t his wife, that – for the
past two years, you know. I mean, she didn’t know. She’d come home – if
you came home drunk, he – and – and – what the DVD started like that. Hey,
what’s you know, and her – him almost in a really kind of mean, teasing way,
getting her to act drunker and drunker on the film. And then he’d – he spliced
them all together and made a DVD that they wanted to put into evidence, and
we started it and it was so humiliate – and she was – he was saying why do –
asking her to take her clothes off, or why you acting different now that I got
the camera on, huh? She’s you know, just really mean and – and Lisa was
like, enough, you know, I’ve got to object to this. This is the night I – and he
made a big old deal about, you know, I still want to mark it, excluded
evidence because, you know, he thinks he’s right in every objection and I –
and – and – and he kept –
REFEREE KRELLWITZ: Bringing it –
– bringing in stuff. I said everything this guy has done
in the past two years –
REFEREE KRELLWITZ: Yeah –
– has been done in preparation for this litigation –
REFEREE KRELLWITZ: Yeah.
So as far as I’m concerned, none of it is admissible.
Well, you know, on and he – this guy is such a devious little prick. I just – I
can’t believe how much he has done to this woman. [R V, pp 167-169.]
We are convinced that plaintiff successfully demonstrated that Referee Odette held actual
bias against plaintiff. Referee Odette called plaintiff a “devious little prick” and a “weirdo” and
also talked disparagingly about plaintiff’s attorney. And perhaps just as troubling is the fact that
Referee Odette had made a decision as of this date, before the conclusion of all the proofs. The
existence of the referee’s bias was plain and, at the time, affected plaintiff’s right to due process,
a substantial right. This bias manifested itself in the referee’s findings where she found that none
of the 12 best-interest factors favored plaintiff. This is striking since our review of the evidence
showed that plaintiff should have been favored on at least four of the factors. Accordingly,
plaintiff successfully showed that he was denied his right to due process at the referee hearing.
However, the referee hearing was not the culmination of the custody proceedings. After
the hearing, the circuit court held a de novo trial. Plaintiff does not argue that the circuit court
judge was biased. Instead, plaintiff only argues that because the referee hearing was biased, the
circuit court hearing, which relied on evidence and transcripts from the hearing, was tainted also.
Plaintiff cites no authority standing for the proposition that a tainted referee hearing
automatically results in the subsequent de novo circuit court trial being tainted as well. Plaintiff
seems to argue that the rulings of the referee affected what evidence the circuit court could
consider. This argument would be more persuasive if it were not for the fact that the circuit
court did admit evidence that was excluded from the referee hearing. Accordingly, even though
plaintiff’s substantial rights were affected at the time by the referee’s bias, plaintiff ultimately
suffered no prejudice because the circuit court held a de novo trial. Moreover, plaintiff
requested the de novo trial, in part, as a remedy for the referee bias. Plaintiff cannot now object
to the remedy that he specifically requested. See Grant v AAA Mich/Wisc, Inc (On Remand), 272
Mich App 142, 148; 724 NW2d 498 (2006) (“A party who expressly agrees with an issue in the
trial court cannot then take a contrary position on appeal.”).
III. DELAY IN PROCEEDINGS
Plaintiff argues that the extraordinary delay in the custody hearing unfairly prejudiced
him. We disagree. This unpreserved issue is reviewed for plain error affecting substantial rights.
Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).
MCR 3.210(C)(1) provides that “[w]hen the custody of a minor is contested, a hearing on
the matter must be held within 56 days.” Here, in January 2008, the circuit court referred the
matter to the referee for hearings. Over the course of the next 16 months, the referee held six
different half-day2 hearing sessions spaced months apart: March 6, 2008; May 2, 2008; June 13,
2008; September 19, 2008; December 18, 2008; and May 1, 2009. The actual time covered by
these sessions was approximately 16.5 hours.
Plaintiff repeatedly requested to have either full days of hearings scheduled or back-toback days scheduled, or a combination of both. Plaintiff made no less than ten such requests to
the circuit court and the referee, spanning from April 2008 through February 2009. Given the
vast amount of time between these sessions, the requests seemingly were rebuffed.
Even though this delay is repugnant on its face, practically, the only way that plaintiff
would be prejudiced by this delay would be if, because of the temporary parenting-time order
that existed during this period, an established custodial environment was created with defendant
or, conversely, if an established custodial environment with plaintiff was destroyed. The trial
court’s opinion regarding the established custodial environment did not explicitly reference this
period, but it did reference how the child had lived with defendant his entire life. Regardless of
the trial court’s opinion though, we concluded in Part I.A., supra, that the trial court’s finding of
an established custodial environment existing solely with defendant was against the great weight
of evidence. Accordingly, we cannot conclude that plaintiff suffered any prejudice from the
lengthy delay, and this claim fails. Additionally, because the court rule does not prescribe any
sanction or remedy for failing to adhere to the 56-day limit, this Court has previously decided not
to impose one. Mann v Mann, 190 Mich App 526, 535; 476 NW2d 439 (1991).
IV. CHILD SUPPORT – IMPUTED INCOME
Plaintiff argues that it was erroneous to impute any income to plaintiff. We agree that a
remand is necessary. A trial court’s decision to impute income in a child support proceeding is
reviewed for an abuse of discretion. Stallworth v Stallworth, 275 Mich App 282, 286-287; 738
The term “half-day” is used loosely – most of the sessions went from a little before 9:00 a.m.
until a little before noon and one session lasted a little more than two hours.
NW2d 264 (2007).
When determining child support obligations, “a trial court must presumptively follow the
Michigan Child Support Formula.” Id. at 284. According to the 2008 Michigan Child Support
Formula Manual, “When a parent is voluntarily unemployed, or has an unexercised ability to
earn, income includes the potential income that a parent could earn, subject to that parent’s
actual ability.” 2008 MCSF 2.01(G) (emphasis in original). Section 2.01(G)(1) further provides,
“The amount of potential income imputed should be sufficient to bring that parent’s income up
to the level it would have been if the parent had not voluntarily reduced or waived income.”
Thus, it is clear that income is to be imputed only when a parent has somehow voluntarily
lowered his actual income or voluntarily is not earning what he could. See Rohloff v Rohloff,
161 Mich App 766, 770, 776; 411 NW2d 484 (1987).
Here, the Friend of the Court (“FOC”) made an initial determination regarding child
support on April 23, 2008. In that report, the FOC noted that plaintiff “failed to provide income
tax returns”; thus, the FOC simply imputed a monthly income to plaintiff of $4,316.67, equating
to a yearly income of $51,800. Plaintiff objected to this, explaining that he did not have
adequate time to submit the requested tax returns to the FOC. The trial court, without explicitly
ruling on the appropriateness of imputing income, ordered the FOC, and the referee, to
reevaluate the matter with the provided income tax returns. On May 21, 2008, the FOC
submitted an addendum to its report. The FOC noted the following:
[Plaintiff] is self-employed as a Landlord/Property Manager. He provided the
Friend of the Court with his 2007 income tax returns. According to his tax return,
he had a loss of income for 2007. Therefore, his income will be imputed based on
the Michigan Occupational Wage Information guidelines for a Property and Real
Estate manager ($51,800.00 annually).
In addition to the recommendations3 using this imputed annual income of $51,800, the FOC
provided recommendations with plaintiff’s income imputed at full-time minimum wage,
$14,929.20 annually, and left it to the court to determine which recommendation to use. Thus,
the FOC provided six different recommendations: the three custody scenarios with plaintiff’s
annual income imputed to be $51,800 and the three custody scenarios with plaintiff’s annual
income imputed to be $14,929.20.
The referee provided no analysis or discussion regarding her decision on child support.
The referee’s recommendation simply stated, “Plaintiff shall pay child support as ordered in the
attached Uniform Child Support Order.” The attached Uniform Child Support Order cited a
$611 monthly child support obligation, which was derived from using the $51,800 annual
Because the child’s custody was not determined yet, the FOC provided recommendations for
the different custody scenarios: joint custody, custody with plaintiff, and custody with
imputed income, but the order did not provide any explanation regarding why imputing any
income was appropriate, let alone why an income of $51,800 was favored over one of
The circuit court did not address child support during its two-day de novo trial.
Furthermore, the circuit court did not reference child support in its opinion,4 instead simply
stating that it was agreeing with the referee’s (child custody) recommendation.
We question the validity of imputing income to a party when the only apparent reason is
that the person is not making what the FOC guidelines state they could or should be making.
This is an insufficient ground. Our Supreme Court has stated that “any imputation of income
[must be] based on an actual ability and likelihood of earning the imputed income.” Ghidotti v
Barber, 459 Mich 189, 199; 586 NW2d 883 (1998); see 2008 MCSF 2.01(G)(2)(h). There were
no findings issued determining that plaintiff (1) voluntarily was not earning what he could and
(2) that he had an actual ability and likelihood of earning the imputed income. Thus, the trial
court abused its discretion when it adopted the referee’s recommendation, when neither the
referee nor the trial judge enunciated why it was proper to impute an annual income of $51,800
to plaintiff when the FOC’s only rationale for imputing income was that plaintiff’s tax return
showed a net loss of income.
On remand, we remind the trial court that plaintiff’s income is not necessarily entirely
defined by his individual income tax returns. As 2008 MCSF 2.01(C)(2) indicates, income
includes “[e]arnings generated from business, partnership, contract, self-employment, or other
similar arrangement, or from rentals.” Additionally, 2008 MCSF 2.01(C)(2)(a) provides,
“Income (or losses) from a corporation should be carefully examined to determine the extent to
which they were historically passed on to the parent or used merely as a tax strategy.” Thus,
since plaintiff is the sole shareholder and officer of three corporations, the financials for all of
these entities should be carefully examined in addition to plaintiff’s individual tax returns.
Furthermore, on remand, given the bias exhibited by the referee, the trial court should either
make this determination on its own or assign this to a different referee. See Bayati v Bayati, 264
Mich App 595, 602-603; 691 NW2d 812 (2004).
Because the trial court’s findings regarding an established custodial environment and the
best-interest factors were against the great weight of evidence, we vacate the trial court’s order
adopting the referee’s recommendation and remand. Additionally, on remand, the court is to
properly determine the income of plaintiff and only impute income if it determines that plaintiff,
through his own actions, is not earning what he could.
Vacated and remanded for further proceedings consistent with this opinion.
In fact, the introduction in the opinion starts, “Before the Court are the issues of custody and
parenting time . . . .”
We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs. MCR 7.219(f).
/s/ Jane E. Markey
/s/ Kurtis T. Wilder
/s/ Cynthia Diane Stephens