MARILYN ROSE LUTHER V JOHN ERIC WIK
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STATE OF MICHIGAN
COURT OF APPEALS
MARILYN ROSE LUTHER,
UNPUBLISHED
February 19, 2008
Plaintiff-Appellee,
v
No. 271587
Livingston Circuit Court
LC No. 06-036815-DZ
JOHN ERIC WIK,
Defendant-Appellant.
Before: Davis, P.J., and Murphy and White, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order of custody and parenting time
awarding plaintiff sole physical custody, the parties joint legal custody, and defendant parenting
time of alternate weekends and holidays, and 30 days in the summer. We affirm.
The minor child, Alissa, was born on September 16, 1998. Plaintiff and defendant lived
together with Alissa for the first six months of her life in the Farmington area. Subsequently,
they lived apart, and eventually plaintiff moved to Fowlerville, where she purchased a home with
her fiancé.
In June 2005, the trial court entered an ex parte order awarding plaintiff sole physical
custody of Alissa. The issue of parenting time was reserved. Defendant objected to the ex parte
order, claimed that the custody issue had not been determined by any court, and claimed that
defendant provided Alissa an established custodial environment until the 2004-2005 school year.
The parties entered into a consent agreement with a temporary award of custody and parenting
time. Plaintiff received physical custody and defendant received parenting time of the first three
weekends of every month, alternate holidays, and Wednesday evenings for three hours.
Extended parenting time for the summer was not addressed. The order indicated that it was a
temporary order, pending further hearing. On January 6, 2006, the court entered a consent order
that set a hearing regarding the issues of parenting time and custody before a Friend of the Court
referee on March 14, 2006.
At the March 14, 2006, evidentiary hearing before the referee, defendant relinquished his
claim to custody, and the parties worked toward a parenting time agreement. The parties could
not agree. Defendant desired parenting time of three weekends per month and 45 days in the
summer. Plaintiff wished to change to a “normal” parenting time schedule of alternate weekends
and 30 days in the summer. One of the most important issues discussed during this hearing was
how to transport Alissa to and from her parenting time. Defendant does not have a driver license
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and works until early evening every Friday night. Plaintiff is unable to transport Alissa on
Friday nights, and defendant can only provide transportation if his mother or fiancée is allowed
to transport Alissa. At the hearing, the parties ultimately agreed that defendant’s fiancée or
mother could transport Alissa to defendant’s home, and that plaintiff would transport her on the
return trip on Sunday evenings. During the hearing, the referee noted that he had some hesitation
with allowing the parenting time to continue for three weekends per month, but that defendant’s
investment in his relationship with Alissa, and plaintiff’s choice to move Alissa to a new city,
may justify the unusual arrangement.
The referee recommended that defendant continue to receive three weekends per month
of parenting time and 45 days of extended parenting time in the summer. Defendant objected
because the recommendation required that he be present for his parenting time transportation
responsibilities. Plaintiff objected to the referee’s recommendation because she desired
“normal” parenting time of alternate weekends and 30 days in the summer.
On May 2, 2006, the trial court held a hearing on these objections to the referee’s
recommendation. Both parties were represented by counsel, who had the opportunity to express
each party’s position. The referee also gave a summary of the proceedings to the court. At the
end of the hearing, the trial court ordered that defendant be granted parenting time on alternate
weekends and holidays, with 30 days extended parenting time in the summer. On May 22, 2006,
the trial court issued a supplementary order that specified the date on which parenting time was
to begin following the new schedule, and explicitly allowed defendant’s mother and fiancée to
transport Alissa to defendant’s parenting time.
Defendant then moved for rehearing or reconsideration, arguing that the trial court failed
to conduct a de novo hearing after his objection to the referee’s recommendation, and that he was
prevented from offering live testimony at the hearing. The trial court denied his motion.
I
Defendant contends that the trial court failed to conduct a de novo hearing regarding
parenting time, although defendant properly objected to the referee’s findings within the
statutory period. He maintains that a trial court is not permitted to base its opinion solely on the
referee’s report and recommendation unless the parties stipulate to that method.
This Court reviews issues of statutory construction de novo. Lash v City of Traverse
City, 479 Mich 180, 186; 735 NW2d 628 (2007). Effective October 1, 2004, MCL 552.507, the
statute regarding the requirements for de novo hearings related to issues previously decided by a
friend of the court referee, was amended. The court rule, MCR 3.215(F)(2), was changed to
comply with the statute effective May 1, 2005. The ruling defendant appeals was made after
these changes to the statute and court rule; however, defendant’s argument is based on case law
interpreting and applying the older versions of the statute and court rule. Because the trial court
conducted a de novo hearing as it is currently described in MCL 552.507(4), (5), and (6), we
affirm the trial court’s order.
The purpose of statutory construction is to “discern and give effect to the Legislature’s
intent.” Elezovic v Ford Motor Co, 274 Mich App 1, 5; 731 NW2d 452 (2007). If the plain
language of the statute is unambiguous, then “no judicial construction is permitted, and the
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statute must be enforced as written.” Id. Before October 1, 2004, MCL 552.507 provided in
pertinent part:
(5) 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 under subsection
(4), except that a request for a de novo hearing concerning an order of income
withholding shall be made within 14 days after the recommendation of the referee
is made available to the party under subsection (4).
In Cochrane v Brown, 234 Mich App 129, 132; 592 NW2d 123 (1999), this Court interpreted the
statutory requirement for a de novo hearing. The Court explained that the statute required a “de
novo hearing” rather than “de novo review.” Id. at 132. The Court held that, based on the
limitations in MCR 3.215(F)(2), a de novo review of the record, without more, could only
constitute a de novo hearing where both parties consented. Id.
However, effective October 1, 2004, the Legislature amended MCL 552.507,
renumbering section (5) as (4), and adding sections (5) and (6), which state:
(5) A hearing is de novo despite the court’s imposition of reasonable restrictions
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 the previous hearing.
Here, as MCL 552.507(5) requires, the parties were given a full opportunity to present
evidence at the referee hearing. They both addressed the referee and explained their positions. It
is undisputed that the hearing was taped and later transcribed, to ensure preservation of the
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evidence. Neither party claims on appeal that they were not given a full opportunity to present
evidence at the referee hearing. More importantly, the parties’ objections to the referee’s
recommendation were not objections to factual issues. Defendant objected only to the fact that
the referee neglected to include a provision that would allow defendant’s fiancée or his mother to
transport Alissa to his parenting time. Plaintiff objected to the referee’s ultimate decision, and
requested that defendant receive alternate weekends and 30 days in the summer for parenting
time, and that defendant pay her attorney fees. None of these are findings of fact that would
require the presentation of evidence under MCL 552.507(5)(b). Therefore, both the conditions
found in MCL 552.507(5) were met, and the trial court was permitted to conduct a de novo
hearing on the basis of the record alone. See Dumm v Brodbeck, 276 Mich App 460, 464-465;
740 NW2d 751 (2007).
Because the trial court met the criteria for a de novo hearing listed in MCL 552.507, and
reviewed the record by listening to the referee’s accurate summary, we conclude that the trial
court conducted a de novo hearing pursuant to MCL 552.507. Dumm, supra at 464-465.
II
Defendant also asserts that the trial court violated the court rule that requires the court to
allow parties to provide live evidence in judicial hearings regarding parenting time, because the
hearing was during motion call and defendant could not provide live evidence. Statutory
interpretation involves a question of law this Court reviews de novo. Adams v Linderman, 244
Mich App 178, 184; 624 NW2d 776 (2000).
Under the Michigan court rules, the parties to a parenting dispute have the right to present
live evidence during a judicial hearing on matters previously heard by a referee. MCR
3.215(F)(2). After MCL 552.507(4), (5), and (6) were rewritten to allow the trial court to hold a
de novo hearing by reviewing the record, without regard to the parties’ consent, the related court
rule was also amended. MCR 3.215(F)(2) now states:
(2) 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;
(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.
Thus, while the parties have the right to present live evidence, this right is not absolute. Within
the trial court’s discretion, the court may prohibit parties from presenting evidence where the
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parties did not object to that issue or where the evidence was available during the referee
hearing. MCR 3.215(F)(2).
Here, defendant did not assert his right to present live evidence during the May 2, 2006
hearing. Further, defendant did not show the trial court that he had evidence to present that was
related to an objection of the parties and was unavailable during the referee hearing. Thus, under
MCR 3.215(F)(2)(b) and (c), even if defendant had requested the opportunity to present live
evidence, the trial court would have been within its discretion to deny defendant the opportunity.
Therefore, the trial court did not commit error requiring reversal with respect to defendant’s right
to present live evidence.
III
Defendant’s last argument is that the trial court simply used the standard Friend of the
Court formula and did not consider the specific situation of the parties in determining parenting
time. Defendant maintains that this was a gross abuse of discretion, particularly in light of the
fact that the trial court did not explain its consideration of the best interests of the minor child.
This Court reviews a parenting time order de novo, but “will not reverse the order unless
the trial court made findings of fact against the great weight of the evidence, committed a
palpable abuse of discretion, or committed a clear legal error.” Brown v Loveman, 260 Mich
App 576, 591-592; 680 NW2d 432 (2004). Clear legal error exists when the trial court “errs in
its choice, interpretation, or application of the existing law.” Shulick v Richards, 273 Mich App
320, 323; 729 NW2d 533 (2006). In a child custody case, an abuse of discretion exists where the
result is “so palpably and grossly violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of
reason but rather of passion or bias.” Id. at 324-325, quoting Spalding v Spalding, 355 Mich
382, 384-385; 94 NW2d 810 (1959).
Under Michigan law, “[v]isitation shall be granted if it is in the best interests of the child
. . .” Deal v Deal, 197 Mich App 739, 741; 496 NW2d 403 (1993). The visitation should be of
the frequency, duration, and type that is “reasonably calculated to promote a strong relationship
between the parent and the child.” Id. The trial court should consider the factors related to the
best interests of the child listed in MCL 722.23, and the specific parenting time factors listed in
MCL 722.27a.1 However, where parenting time alone is at issue, the trial court is not required to
1
MCL 722.27a(6) states:
The court may consider the following factors when determining the frequency,
duration, and type of parenting time to be granted:
(a) The existence of any special circumstances or needs of the child.
(b) Whether the child is a nursing child less than 6 months of age, or less than 1
year of age if the child receives substantial nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child during parenting
(continued…)
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make a finding on each specific factor. Hoffman v Hoffman, 119 Mich App 79, 83; 326 NW2d
136 (1982). Instead, the trial court may focus on only those factors which are contested. Id.
Here, the trial court did not place any findings of fact on the record. The trial court did
not discuss either the factors related to the child’s best interest or those specific to parenting
time. However, it does not appear from the record that any of the factors listed in MCL
722.27a(6) were actually contested. The only statutory factor implicated by the parties’
discussion during the evidentiary and motion hearings was the factor related to difficulties with
transportation. MCL 722.27a(6)(e). This issue was addressed by the trial court when it ordered
that defendant did not have to be present during Alissa’s transportation to his parenting time.
Further, the referee specifically considered each of the parenting time factors in his written report
and accurately presented the issues to the court. Plaintiff objected to the ultimate decision made
by the referee regarding defendant’s parenting time, but neither she nor defendant contested any
of the referee’s findings on the parenting time factors.
Under these circumstances, we cannot say that the trial court’s decision defied reason or
was made out of bias and we conclude that the trial court did not commit a palpable abuse of
discretion.
Plaintiff argues that defendant’s appeal is frivolous and requests attorney fees in the
amount of $2,850. However, plaintiff cites no authority to explain what constitutes a frivolous
appeal or to support that this Court should grant attorney fees. Therefore, plaintiff has
abandoned this issue, and this Court is not required to review it. Prince v MacDonald, 237 Mich
App 186, 197; 602 NW2d 834 (1999).
(…continued)
time.
(d) The reasonable likelihood of abuse of a parent resulting from the exercise of
parenting time.
(e) The inconvenience to, and burdensome impact or effect on, the child of
traveling for the purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise parenting time in
accordance with the court order.
(g) Whether a parent has frequently failed to exercise reasonable parenting time.
(h) The threatened or actual detention of the child with the intent to retain or
conceal the child from the other parent or from a third person who has legal
custody. A custodial parent’s temporary residence with the child in a domestic
violence shelter shall not be construed as evidence of the custodial parent’s intent
to retain or conceal the child from the other parent.
(i) Any other relevant factors.
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Affirmed.
/s/ Alton T. Davis
/s/ William B. Murphy
/s/ Helene N. White
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