ANGELA M DUMM V MICHAEL S BRODBECK
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STATE OF MICHIGAN
COURT OF APPEALS
ANGELA M. DUMM, f/k/a ANGELA M.
BRODBECK,
UNPUBLISHED
July 19, 2007
APPROVED FOR
PUBLICATION
August 28, 2007
9:00 a.m.
Plaintiff-Appellee,
v
No. 274600
Oakland Circuit Court
Family Division
LC No. 02-664690-DM
MICHAEL S. BRODBECK,
Defendant-Appellant.
Official Reported Version
Before: Meter, P.J., and Talbot and Owens, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court's order denying his motion to modify
the existing custody order affecting his minor child, Gwyneth Brodbeck. We affirm.
Defendant Michael S. Brodbeck and plaintiff Angela M. Dumm married in 1997. Their
daughter, Gwyneth Brodbeck, was born on July 15, 1999. The parties divorced by consent
judgment in 2002. Although the parties have joint legal custody of Gwyneth, plaintiff was
granted primary physical custody and defendant received "reasonable and liberal parenting
time."
The relationship between these parties is not amicable, and each party accuses the other
of hindering his or her relationship with Gwyneth. Defendant filed the current motion to modify
the custody order on October 4, 2006, requesting primary physical custody of his daughter. He
alleged that plaintiff failed to communicate with him regarding the child's medical condition and
extracurricular activities, threatened to withhold parenting time, and took measures, such as
requiring her to use the last name "Dumm" and attempting to impose a lesbian lifestyle on the
child, that "control[led] and stifle[d] Gwyneth's individuality." Plaintiff admitted that she "has
also begun to use Gwyneth as [a] weapon against [defendant]," but denied many of the other
allegations and otherwise defended her actions as a parent.
The trial court held that Gwyneth was required to use her legal last name, "Brodbeck,"
and ordered the parties to return to joint counseling. The trial court also required plaintiff to
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consistently update defendant regarding Gwyneth's activity schedule and medical treatments.
However, the trial court denied defendant's motion for a change of custody because "most issues
were previously raised in prior Motions and Defendant is out of town for work weeks at a time,
and issues do not rise to the level of necessitating a change."
MCL 722.27(1)(c) governs the circumstances under which the trial court can modify or
amend its previous custody order for the best interest of the child. MCL 722.27(1)(c) states in
relevant part:
The court shall not modify or amend its previous judgments or orders or
issue a new order so as to change the established custodial environment of a child
unless there is presented clear and convincing evidence that it is in the best
interest of the child. The custodial environment of a child is established 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.
Defendant failed to establish by clear and convincing evidence that a change in custody
was in Gwyneth's best interest. Defendant alleged that plaintiff forced Gwyneth to use the last
name "Dumm" at school. Defendant also asserted that officials at Gwyneth's school told him
that Gwyneth did not exhibit behavior reflecting a need for attention deficit/hyperactivity
disorder (ADHD) medication. Defendant alleged that Gwyneth was not responding well to the
ADHD medication and attacked plaintiff for failing to seek follow-up treatment. He claimed that
plaintiff 's parents could testify that Gwyneth was under extreme distress arising from plaintiff 's
treatment and control over her. However, defendant presented no affidavits from school officials
or plaintiff 's parents or any medical records or documentation from Gwyneth's physician
regarding her behavior and need for medical treatment. Given the lack of evidence supporting
defendant's assertions, the trial court properly determined that defendant failed to establish by
clear and convincing evidence that a change in custody was in Gwyneth's best interest.
Defendant also challenges the trial court's decision to adopt the Friend of the Court
(FOC) recommendation and findings of fact over his objection without conducting an evidentiary
hearing. Pursuant to MCR 3.215(E)(7), "[t]he court may hear a party's objection to the referee's
recommendation for an order on the same day as the referee hearing . . . ," provided that the
parties are notified in advance and are given the option to refuse a same-day hearing. MCR
3.215(F)(2) governs the conduct of the judicial hearing following a party's objection to an FOC
recommendation as follows:
To the extent allowed by law, the court may conduct the judicial hearing
by review of the record of the referee hearing, but the court must allow the parties
to present live evidence at the judicial hearing. The court may, in its discretion:
(a) prohibit a party from presenting evidence on findings of fact to which
no objection was filed;
(b) determine that the referee's finding was conclusive as to a fact to which
no objection was filed;
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(c) prohibit a party from introducing new evidence or calling new
witnesses unless there is an adequate showing that the evidence was not available
at the referee hearing;
(d) impose any other reasonable restrictions and conditions to conserve the
resources of the parties and the court.
MCL 552.507 also permits judicial review of FOC recommendations following the
objection of a party. The statute provides in relevant part:
(4) The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon
motion of the court. The request of a party shall be made within 21 days after the
recommendation of the referee is made available to that party.
(5) A hearing is de novo despite the court's imposition of reasonable
restrictions and conditions to conserve the resources of the parties and the court if
the following conditions are met:
(a) The parties have been given a full opportunity to present and preserve
important evidence at the referee hearing.
(b) For findings of fact to which the parties have objected, the parties are
afforded a new opportunity to offer the same evidence to the court as was
presented to the referee and to supplement that evidence with evidence that could
not have been presented to the referee.
(6) Subject to subsection (5), de novo hearings include, but are not limited
to, the following:
(a) A new decision based entirely on the record of a previous hearing,
including any memoranda, recommendations, or proposed orders by the referee.
(b) A new decision based only on evidence presented at the time of the de
novo hearing.
(c) A new decision based in part on the record of a referee hearing
supplemented by evidence that was not introduced at a previous hearing.
Given that the FOC referee's recommendation was issued on the same day that the trial
court hearing was conducted, we presume that defendant orally challenged the recommendation
at the FOC hearing and that a judicial hearing was held on the same day pursuant to MCR
3.215(E)(7). The trial court heard argument from both parties and FOC referee Laurie Savin.
Referee Savin indicated that the parties had raised every issue currently before the court in
earlier motions to the FOC and that the issues had been resolved in the past without objection
from either party. Defendant asserted that Referee Savin had precluded him from presenting
evidence.
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However, there is no indication, besides defendant's self-serving assertions, that
defendant attempted to present evidence before the FOC and was prevented from doing so.
Defendant brought no evidence or affidavits to court on the day of the hearing. Rather,
defendant continued to make allegations without providing any support for his claims. The trial
court accepted Referee Savin's version of events and issued its order accordingly. We defer to a
trial court's unique opportunity to judge the credibility of the witnesses before it and,
consequently, we accept the trial court's conclusion that Referee Savin's findings and statements
before the trial court were credible. MCR 2.613(C).
Further, the trial court properly considered the FOC recommendation and the testimony
of Referee Savin. The Michigan Rules of Evidence do not apply to a trial court's consideration
of an FOC report or recommendation that is submitted pursuant to MCL 552.505(1)(g), as in this
case. MRE 1101(b)(9). In earlier versions of this court rule, the trial court was permitted to base
its review solely on the FOC record only if the parties consented. Cochrane v Brown, 234
Mich App 129, 132; 592 NW2d 123 (1999). However, recent amendments of the statute and
court rule have lifted this restriction, and the trial court is no longer prevented from considering
an FOC report or recommendation if it also allows the parties to present live evidence. MCR
3.215(F)(2); MCL 552.507(5)(b), (6); 2004 PA 210. As noted earlier, defendant neither asked to
present live evidence before the trial court nor presented any documentation or affidavits to
support his allegations. The October 11, 2006, hearing before the trial court satisfied the
requirement in MCL 552.507(4) specifying that a trial court "shall hold a de novo hearing on any
matter that has been the subject of a referee hearing" on the written request of either party or by
motion of the court. Contrary to defendant's assertion on appeal, the trial court properly
reviewed the FOC record and issued a proper order in reliance on the FOC recommendation.
Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Donald S. Owens
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