STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS MELANIE ELIZABETH MCCOY, Plaintiff-Appellant, UNPUBLISHED April 11, 2017 v No Saginaw Circuit Court ANTHONY JAMES MAIN, LC No DS Defendant-Appellee. Before: RONAYNE KRAUSE, P.J., and O CONNELL and METER, JJ. PER CURIAM. Plaintiff appeals by right the trial court s order enforcing custody and parenting time recommendations of the Friend of the Court (FOC). This appeal concerns the custody of the parties minor child, born May 15, Plaintiff was initially awarded sole legal and physical custody, but the parties later agreed to allow defendant some parenting time. Defendant eventually became concerned that plaintiff was making poor choices and petitioned to change custody and parenting time. The trial court ordered an investigation by the FOC into plaintiff s living conditions, the results of which induced it to immediately grant defendant temporary custody. The FOC prepared an analysis and report that recommended joint legal custody and primary physical custody with defendant, which the trial court ordered. Plaintiff contends that the trial court erred by relying entirely on the FOC s report and in failing to conduct an evidentiary hearing. We do not agree with the entirety of plaintiff s characterization of the trial court s obligations, at least on the facts of this case, but the record does not disclose whether the trial court made its own independent findings as required. We therefore remand for clarification. Plaintiff argues that a trial court must conduct an evidentiary hearing when modifying custody pursuant to MCL This is not entirely technically accurate. The statute requires the presentation to the court of clear and convincing evidence that [the modification] is in the best interest of the child. MCL (1)(c). Therefore, it does not explicitly require a hearing. Nevertheless, plaintiff correctly asserts that the trial court may consider a report prepared by the FOC when making a decision, but the report is not itself []admissible as evidence unless all of the parties agree otherwise. McCarthy v McCarthy, 74 Mich App 105, 109; 253 NW2d 672 (1977); see also Duperon v Duperon, 175 Mich App 77, 79-80; 437 NW2d 318 (1989). Importantly, however, the trial court s consideration of the report is only erroneous if the trial court deprives the parties of their right to a full hearing should they wish one; notably, the parties may forego such a hearing if they choose. Bowler v Bowler, 351 Mich 398, ; -1-

2 88 NW2d 505 (1958). In other words, an evidentiary hearing is a right held by the parties, but it is not necessarily a per se obligation on the part of the court. The trial court ordered the inspection of plaintiff s home and referral of parenting time and custody issues to the FOC in response to defendant s petition for legal and physical custody of the parties minor child. Defendant alleged, inter alia, that plaintiff had no permanent residence, was traveling back and forth between Grand Rapids and Saginaw on a constant basis, stayed with different relatives while in Saginaw, and the child was being left in Saginaw for extended periods of time under the ostensible care of infirm grandparents who could not properly care for the child and in a house shared with teenagers who engaged in fist fights. He also claimed that the child s primary residence in Saginaw was flea-infested and smelled of urine, that the child had fleas in her hair and was covered with flea bites on several occasions, and that plaintiff had assaulted her boyfriend. The Court stated that after the FOC s home inspection the FOC was to set another hearing before the court if necessary. The home inspection revealed brown spots on plaintiff s bed that were suspected urine spots from cats, that the child s room was cluttered with many clothes and toys and reeked of cat urine, and that there were approximately four cats and the only litter box, which was full of feces, was right outside the child s room and stunk horribly. Also, the dining room and kitchen were [v]ery cluttered and filthy and the refrigerator was filthy with spilled food on all of the shelves and inside door. The basement was filthy with things piled up all over, there was mold on the walls, there was a tied up German Shepherd, and the investigator stepped in cat feces. Moreover, although plaintiff told the investigator that she only worked weekends when defendant had the child, her employer said that she worked varying dates and times and averaged about 30 hours each week. The FOC inspector not only presented a written summary of the inspection to the trial court, but also, on the record, personally summarized to the trial court her experiences during that inspection of the severely unsanitary conditions at the house. The trial court observed that it could smell cat urine from plaintiff in the courtroom and had been able to at the prior hearing; it offered plaintiff the opportunity to say something, but plaintiff only stated that she had not yet obtained an attorney. The trial court suspended her parenting time until she could provide adequate housing and pending a FOC inspection thereof. Several months later, on May 27, 2016, the FOC filed the report and recommendation. It recommended that the parties continue to have joint legal custody of the child, but defendant should have primary physical custody and plaintiff should have some limited weekly parenting time. The FOC recommendations were based on the underlying FOC report, which analyzed the eleven best interest factors required by MCL to be used to assess the best interest of the child. In general summary, the report found both parties equal under many factors, but that plaintiff had demonstrated instability that was expected to continue whereas defendant was able to provide the child a healthy, safe, and stable environment. The parties were notified that the trial court would adopt the FOC s recommendations unless a written objection was made within 21 days. Defendant did file a timely objection, and a hearing was scheduled for June 27, At the hearing, defendant s attorney objected to the FOC s parenting time recommendation, to which the trial court responded that it would hold a hearing if the parties could not resolve the issue. On August 2, 2016, defendant moved to withdraw his objections, and the trial court entered an order to that effect. -2-

3 In the meantime, plaintiff obtained counsel, and on July 25, 2016, almost two months after the FOC recommendation had been filed, she sought to contest the child s custody and filed objections to the FOC report and recommendation. Consistent with her argument on appeal, plaintiff argued that the report and recommendation could not be the basis for deciding custody because that the court s custody findings must be based on evidence presented at an evidentiary hearing. The trial court held a hearing, at which plaintiff again requested an evidentiary hearing and asserted that the FOC report and recommendation relied on the pleadings alone and that there was a change in custody because she had full physical custody and the prior orders had not been intended as permanent changes in custody. The trial court stated that [i]t s not based on the pleadings because a full investigation had been conducted, and it denied plaintiff s requests as untimely. The court issued an order denying plaintiff s request for an evidentiary hearing on the issue of custody and parenting time. The court adopted the FOC recommendations from the FOC report and recommendation. As noted, the hearing requirement is a right held by the parties, not a per se obligation of the trial court. The Friend of the Court Act requires a trial court to hold a hearing de novo to review a friend of the court recommendation if either party objects to that recommendation in writing within 21 days. MCL (4) and (5); see also MCR 3.215(E)(4). Although defendant filed a timely objection, defendant withdrew that objection. Plaintiff did not file an objection until substantially beyond the 21-day deadline. The record clearly shows that plaintiff had ample time to do so, as required by MCL 3.210(C)(5); likewise, plaintiff had ample time to find an attorney. Although a party appearing in propria persona may be held to somewhat more relaxed standards than would a member of the bar, that leeway does not extend to a complete abdication. 1 See Haines v Kerner, 404 US 519, ; 92 S Ct 594; 30 L Ed 2d 652 (1972); Estelle v Gamble, 429 US 97, ; 97 S Ct 285; 50 L Ed 2d 251 (1976); Hughes v Rowe, 449 US 5, 9-13; 101 S Ct 173; 66 L Ed 2d 163 (1980). Because the time for objecting to the report and recommendation had passed, the trial court was not required to hold a judicial hearing. MCL (4). We appreciate plaintiff s argument that she relied on defendant s objection. Under MCL (4), a hearing is to be held upon the written request of either party so long as such a request is made within 21 days after the recommendation of the referee is made available to that party. The trial court properly scheduled a hearing upon receipt of defendant s written objection. See Cochrane v Brown, 234 Mich App 129, ; 592 NW2d 123 (1999). However, the statute does not articulate the consequences of withdrawing any such objections where the other party has given no indication whatsoever of also objecting or of relying on the objection. It is, of course, well established that all parties may rely on a jury demand, but the Court Rules mandate that a jury demand may not be withdrawn without the consent of all parties. MCR 2.508(D)(3); Mink v Masters, 204 Mich App 242, ; 514 NW2d 235 (1994). We 1 We note that the United States Supreme Court cases focus on prisoners filing pleadings without the assistance of counsel. This Court has expressed doubt whether that leeway extends to other civil matters. See Totman v School Dist of Royal Oak, 135 Mich App 121, ; 352 NW2d 364 (1984). We presume that the interests of justice would best be served by granting that leeway under all circumstances, but because plaintiff here simply missed the deadline entirely, and did so by more than a trivial amount of time, that leeway is of no practical consequence because it simply would not stretch that far. -3-

4 think it is therefore not an analogous situation. In the absence of any rule or statute to the contrary of which we have been made aware, we believe we must conclude that objections to an FOC report may be withdrawn, so the trial court is not per se obligated to hold a hearing if no party that has actually expressed a desire for one continues to do so. Plaintiff s contention that the trial court took no evidence is, in any event, overstated. As noted, the FOC investigator personally addressed the trial court in conjunction with the submission of her report. The trial court s ability to smell plaintiff, while perhaps not the traditional sort of evidence, nevertheless was also evidence. As discussed, the trial court was permitted to consider the separate FOC report so long as it did not infringe upon the parties right to a hearing. The trial court did not: both parties had ample opportunity to exercise that right, and both parties declined to do so within the confines of that opportunity. The 21-day limit is established by statute, MCL (4), not arbitrarily set by the trial court. Plaintiff also argues that the trial court erroneously failed to state its factual findings and conclusions for each best interest factor. It is readily apparent from the record that the trial court chose to adopt the detailed and extensive findings as set forth in the FOC report. We find no need for the trial court to have recited them from the bench or reiterated them in a separate order; consequently, we disagree that the trial court failed to state its findings and conclusions. However, we agree with plaintiff that the circuit court is required to determine independently what custodial placement is in the best interests of the children, emphasizing that the statutory best-interest factors control whenever a court enters an order affecting child custody. Rivette v Rose-Molina, 278 Mich App 327, ; 750 NW2d 603 (2008). Furthermore, this obligation exists even if the trial court was not required to hold a hearing. What is lacking in the record is more than subtle hints that the trial court independently made findings. Clearly, the trial court considered evidence from the FOC investigator and its own observations of the parties, but the record as it is suggests the disturbing possibility that the trial court adopted the FOC s findings simply because plaintiff failed to make a timely objection. We emphasize that adoption of the findings in the FOC report is not prohibited so long as the trial court made an independent determination that those findings were correct and proper. We think the record is ambiguous whether the trial court did make the requisite independent determination or whether it simply blindly accepted the FOC report s findings and determinations. 2 Plaintiff does not substantively challenge the findings themselves, so we do not review them. However, because we cannot determine whether they were truly the findings of the trial court after an independent analysis that agreed with the FOC, or whether the trial court simply adopted the FOC s findings because no timely objection had been filed, we must remand this matter for clarification. 2 Our dissenting colleague finds no such ambiguity, citing an order the trial court entered after its first hearing but prior to its second hearing and prior to the order appealed from, allegedly stating that it reviewed the FOC findings while fully advised and adopted the recommended ruling as its own. Although the preamble in the order does indeed state that the court was fully advised in the premises, we infer much less from this essentially boilerplate recitation than our dissenting colleague apparently does. -4-

5 On remand, the trial court may do either of the following: (1) add to the record a clear explanation of how it independently arrived at the findings regarding the best interest factors that it included in its custody order, and some articulation of its reasoning, although it need not be lengthy; or (2) hold a de novo evidentiary hearing, taking into account up-to-date information pursuant to Fletcher v Fletcher, 447 Mich 871, 889; 526 NW2d 889 (1994), and perform the independent analysis that it should have performed previously irrespective of whether any objections had been filed. The trial court shall have 21 days from the date of this opinion to either provide the record with the explanation or inform us that it will hold the evidentiary hearing. We retain jurisdiction. No costs, neither party having prevailed at this time. MCR 7.219(A). /s/ Amy Ronayne Krause /s/ Patrick M. Meter -5-

6 Court of Appeals, State of Michigan ORDER Melanie Elizabeth McCoy v Anthony James Main Docket No Amy Ronayne Krause Presiding Judge Peter D. O'Connell LC No DS Patrick M. Meter Judges Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction. Proceedings on remand in this matter shall commence within 21 days of the Clerk s certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, the trial court shall either provide the record with the explanation or inform this Court that it will hold the evidentiary hearing. The proceedings on remand are limited to these issues. The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings. /s/ Amy Ronayne Krause O'Connell, J., would affirm the trial court's original decision and finds no need for a remand. April 11, 2017

7 STATE OF MICHIGAN COURT OF APPEALS MELANIE ELIZABETH MCCOY, Plaintiff-Appellant, UNPUBLISHED April 11, 2017 v No Saginaw Circuit Court ANTHONY JAMES MAIN, LC No DS Defendant-Appellee. Before: RONAYNE KRAUSE, P.J., and O CONNELL and METER, JJ. O CONNELL, J. (dissenting). I respectfully dissent. Plaintiff did not object to the Friend of the Court (FOC) report until well after the 21-day deadline to file objections. I would affirm the trial court s decision. MCR 3.210(C)(6) provides that the court must give the parties an opportunity to review and file objections to the FOC report. If a party files an objection to the report, the trial court must conduct an evidentiary hearing before changing custody of the minor children. MCL (4). In this case, defendant filed a timely objection to the FOC report, and the trial court scheduled a hearing for June 27, At the June hearing, the trial court indicated it would hold a further hearing if the parties did not resolve the issue. On August 2, 2016, defendant moved to withdraw his objections to the report, and the trial court entered an order to that effect. Only then did plaintiff file objections to the report. The trial court ruled that plaintiff s objections were not timely and refused to hold an evidentiary hearing. Because plaintiff did not file an objection until substantially beyond the 21-day deadline, the trial court was not required to hold a hearing under MCL (4). Accordingly, the trial court did not err in declining to hold a hearing. The trial court also did not fail to make its own independent findings. The trial court s August 16, 2016 order indicates that it reviewed the Friend of the Court s proposed findings -1-

8 while fully advised and adopted the recommended ruling as its own. 1 Absent objection by a party, the trial court did not need to do more. I would affirm. /s/ Peter D. O Connell 1 The majority concludes that this order is ambiguous. Courts should interpret the terms in a trial court s judgment in the same manner as courts interpret contracts. Smith v Smith, 278 Mich App 198, 200; 748 NW2d 258 (2008). A contract is ambiguous when its provisions are capable of conflicting interpretations. Farm Bureau Mut Ins Co of Mich v Nikkel, 460 Mich 558, 566; 596 NW2d 915 (1999). There is nothing ambiguous about the trial court s statement that it was fully advised and adopted the findings. The majority impermissibly creates an ambiguity in a clear, concise order where none exists. See Frankenmuth Mut Ins Co of Mich v Masters, 460 Mich 105, 111; 595 NW2d 832 (1995). -2-