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STATE OF MICHIGAN

IN THE COURT OF APPEALS

ANGELENA MCCONCHIE,
Plaintiff-Appellant,

Courl of Appeals No. 326651

JOSHUA DAVID VOIGHT,

Livingston County Circuit Court


Case No. 1044132-DZ

Defendant-Appellee.

Neal D. Nielsen (P26577)


Attorney for Plaintiff-Appel lant
2000 Grand River Annex, Suite 200
Brighton, Ml 48114
(810) 227-7777

Christine M. Heckler (P73382)


Heckler Law Office
Attorney for Defendant-Appellee
8163 Grand RiverAve., Suite 100
Brighton, Ml 48114
(810) 227-1700

David G. Stoker (P24959)


Timothy M. Perrone (P37940)
Cohl, Stoker & Toskey, P.C.
Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. CapitolAve.
Lansing, Ml 48933
(517) 372-9000

LIVINGSTON COUNTY CIRCUIT JUDGE DAVID J. READER'S


MOTION FOR CORRECTION OF COURT OF APPEALS' OPINION

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correction of factual errors set forth in the Court of Appeals' September 15, 2015

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Opinion in this case.

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Livingston County Circuit Judge David J. Reader, by his attorneys, Cohl, Stoker
& Toskey, P.C,, moves pursuant to MCR 7.216( X7) and other applicable rules for the

The factual errors, if uncorrected, will serve to mislead the public as the Court's
practices, call into question the validity of the Circuit Court's Orders in other cases, and

result in lawsuits against Judge Reader upon the suggestion that Judge Reader lacks
judicial immunity,
This Motion is supported by the attached Brief, Exhibits, and Afiidavits.

WHEREFORE, Livingston County Circuit Judge David

J. Reader

respectfully

requests that this Honorable Court review the facts presented in this Motion, issue a
corrected Opinion resolving this appeal, and grant Judge Reader such other and further
relief as may be required.
Respectfully submitted,

COHL, STOKER & TOSKEY, P.C,

Dated: September 29, 2A15


(P2495e)

Cohl, Stoker & Toskey, P.C.


Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. CapitolAve.
Lansing, Ml 48933
(517) 372-e000
n:\client\livingsion\circuit court\litigation\mcconchie v voight\motion for correclion of ct app opinion.doc

STATE OF MICHIGAN
IN THE COURT OF APPEALS

ANGELENA MCCONCHIE,
Plaintiff-Appellant,
v

Court of Appeals No. 326651

JOSHUA DAVID VOIGHT,

Livingston County Circuit Court


Case No. 10-44132-DZ

Defendant-Appellee.

Neal D. Nielsen (P26577)


Attorney for Plaintiff-Appel lant
2000 Grand River Annex, Suite 200
Brighton, Ml 48114
(810) 227-7777
Christine M. Heckler (P73382)
Heckler Law Office
Attorney for Defendant-Appellee
8163 Grand River Ave., Suite 100
Brighton, Ml48114
(810) 227-1700

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David G. Stoker (P24959)


Timothy M. Perrone (P37940)
Cohl, Stoker & Toskey, P.C.
Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. CapitolAve.
Lansing, Ml 48933
(517) 372-eooo

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BRIEF IN SUPPORT OF
LIVINGSTON COUNTY CIRGUIT JUDGE DAVID J. READER'S
MOTTON FOR CORREC_TION OF COURT OF APPEALS'OptNtON

TABLE OF CONTENTS

AUTHORTTTES
LIST OF EXHIBITS
STATEMENT OF BASIS OF JURISDICTION
STATEMENT OF QUESTIONS INVOLVED...,.,..,..
TNTRODUCTTON
STATEMENT OF FACTS....
ARGUMENT......,...
TNDEX OF

I.

..,.,........,. ii
......... iii

................. iv
.........V

................,..1
...................1
..........2

THE FACTUAL ERRORS IN THE COURT OF APPEALS' SEPTEMBER 15,


2015 oPtNtON MUST BE
,........,,....,...2

CORRECTED
A. Standard of Review
B. Factual Errors
1.

..........2
..................4

Defendant Father Filed an Objection to the September 5,2014 lnterim


..........4

Order

2. The Referee

Did not Stamp the Judge's Signature on the Order................5

3. The March 4,2015 Order Was an lnterim Order, and Always ldentified
as an lnterim

4.

Order

....................6

Judge Reader Did Not Add the Term "lnterim" to the lnterim Order............7

C. Failure to Correct Factual


CONCLUSION AND

RELIEF

Errors..,...

................8
,.......,10

INDEX OF AUTHORTTTES

Cases

Abelv Grossman lnvestmenfs Co,

,..........

........,.......3

Qa10).......,.....

.......3

302 Mich App 232; 838 NW2d 204 eA13)


Edry v Adelman,
486 Mich 634; 786 NW2d 567

People v Nash,
244 Mich App 93; 625 NW2d 87
Ratte v Conigan,
989 F Supp 2d 550 (ED Mich,

(2000)

,.i.!,ir........

2013)

.....^.........4

.........^..........8

Union Carbide Corp v Michigan Public Seryice Comm'n,


153 Mich App217;395 NW2d 292 (1980)

.......

United Airlines, lnc v McDonald,


432 US 385; e7 S Ct 2464; 53 L Ed 2d 423 (1977)

....................3

........

......3

Court Rules
MCR 3.215(GX1)

...........

7.211
MCR 7.21s(F)
MCR

7.216(4)
MCR 7.216(A\(7) ..............
MCR

.................6
.......2
...,......,..... iv

..................2
...............2

LIST OF EXHIBITS

1.

September 15,2015 Opinion of the Court of Appeals

2. Affidavit of Judge David J. Reader


3.

Affidavit of Referee Lori Marran

4.

September 5,2A14lnterim Order

5.

March 4,2A15 lnterim Order

6.

Defendant's Objection to Referee Report & Recommendation Dated September 4,


2014

7.

Michigan Appeals weblog

8.

Michigan Lawyers Weekly article

9.

Livingston Press & Argus article

ilt

STATEMENT OF BASIS OF JURISDICTION

This Court has jurisdiction in this case for purposes of this Motion pursuant to
MCR 7.215{F) and (l), asthe Court's Opinion was issued on September 15,2015, and

this Motion is filed within 21 days of the issuance of the Opinion.

iv

STATEMENT OF QUESTTON INVOLVED

I.

WHETHER FACTUAL ERRORS SET FORTH IN THE COURT OF APPEALS'


SEPTEMBER 15, 2015 SHOULD BE CORRECTED, WHERE FAILURE TO CORRECT
THE ERRORS WILL SERVE TO MISLEAD THE PUBLIC, AND HAVE A
DETRIMENTAL EFFECT ON THE CIRCUIT COURT.
The Circuit Court says, "Yes."
Plaintiff-Appellant has no response.
Defendant-Appellee has no response.

INTRODUCTION
Livingston County Circuit Judge David J. Reader has serious concerns regarding

factual errors set forth in the Court of Appeals' September 15, 2A15 Opinion in this

case. (See copy of Opinion, attached as Exhibit 1), Judge Reader does not object to

the result of the Court of Appeals' 2-1 decision in this case. However, certain
statements contained in the majority Opinion are factually incorrect, and must be
corrected in order to avoid (a) misleading the public as to the Circuit Court's practices,
(b) calling into question the validity of the Circuit Court's Orders in other cases, and (c)
suggesting that Judge Reader lacks judicial immunity.

$TATEMENT OF FACTS

This is a family law case involving a dispute over custody and parenting time.
The facts in suppott of this Motion are set forth in the accompanying Affidavits of Judge
David J. Reader, and Referee Lori Marran, or within documents already in the record on

appeal. (See Affidavit of Judge David J. Reader, attached as Exhibit 2; see Affidavit of
Referee Lori Marran, attached as Exhibit 3).

For purposes of this Motion, the relevant facts begin with the Defendant father's

April 8, 2A14 Motion for Change of Custody. A hearing on the Motion for Change of
Custody was held on September 4,

2AM.

(Ex. 3, fl2). After the hearing, the Referee

recommended denial of the father's Motion, and set

March

4,

"parenting time hearing" for

2015, as set forth in an lnterim Order dated Septembe

September 5, 2A14 lnterim Order, attached as Exhibit

4).

r 5, 2014. (See

Judge Reader personally

signed the lnterim Order, and dated it "9-5-14." (Ex. 2, lf2). The father subsequently filed
a written Objection to this lnterim Order, which was denied by the

Court. (Ex. 3, tf2).

At the March 4, 2A15 hearing, the Referee recommended "extended parenting


time" to the Defendant father, and "reasonable parenting time" to the Plaintiff mother, as

set forth in an lnterim Order dated March


attached as Exhibit

4,2015. (See March 4,2015 lnterim

5). The March 4,2A15 lnterim

Order,

Order also stated that "Defendant

shall be the primary custodian of the child." Subsequent proceedings were held in the
trial Court, by which a full evidentiary hearing would be held on the issues contained in
the March 4,2015 lnterim Order. (Ex. 3, llll3-4).

Even so, the Plaintiff mother filed an appeal in the Court of Appeals from the
March

4,2015 lnterim Order. ln an Opinion dated September 15,2015, this Court

vacated the March 4,2015 lnterim Order, "as it was the result of numerous legal errors."

(Ex. 1, p

2).

ln explaining the errors that resulted in the vacated lnterim Order, this

Court made several statements of fact as to the trial Court's practices in this case with
regard to the signing of lnterim Orders. However, as set forth in the accompanying
Affidavits of Judge David J. Reader, and Referee Lori Marran (Exhibits 2 and 3), those
statements of fact are demonstrably false, and require correction.

ARGUMENT

I.

THE FACTUAL ERRORS IN THE COURT OF APPEALS' SEPTEMBER 15, 2A15


OPINION MUST BE CORRECTED

A. Standard of Review.
This Motion for Correction of Opinion is brought under MCR 7.216(A),which lists,
in addition to the general powers possessed by the appellate court, additional relief and

orders which the Court of Appeals may grant or enter as justice requires and as the

Court deems proper. MCR 7.216(A)(7). Any form of relief listed maybe sought by
motion, see MCR 7,211, or may be directed by the Court on its own motion. The

appellate court may enter any order or judgment, or grant further or different relief, in

any case as justice may require. See Edqy v Adelman, 486 Mich 634, 638 n 3; 786
NW2d 567 (2010).

The movant for the relief requested here is the presiding Judge of the trial Court
in this case. lt is incongruous for the trial Court Judge to become a party to a case over

which he has presided, and thus

Motion

to

Intervene in this case would be

inappropriate. Rather, the movant seeks to employ the Court of Appeals' flexible motion
practice to obtain the necessary relief, without the necessity of intervening as a par1y.

There are situations where a non-party to a case is an aggrieved party with


standing to

appeal. Abel v Grossman lnvestmenfs Co, 302 Mich App 232; B3B NW2d

2A4 {2013),. This is consistent with several decisions of the Federal Courts permitting

post-judgment intervention for the purpose

of appeal. See United Airlines, lnc

McDonald, 432 US 385, 395-396 n 16; 97 S Ct 2464;53 L Ed 2d 423 (1977). This


typically occurs where the existing parties are unwilling to pursue the necessary relief.

The critical inquiry in every such case is whether in view of all the circumstances the
intervenor acted promptly after the entry of final judgment. ld.

Here, Judge Reader has filed his Motion for Correction of Opinion within the time

period in which the named parties could have moved for reconsideration, or filed an
application for leave to appeal to the Michigan Supreme Court. Thus, this Motion is
timely filed, and should be considered by this Court,
1

See also lJnion Carbide Corp v Michigan Pubtic Seruice Comm'n,153 Mich App 217,
223-227;395 NW2d 292 (1986), rev'd on other grds, 431 Mich 135;428 NW2d 322
(lgBBXa person whose interests have been affected by a judgment or administrative
decision has the right to initiate or continue appellate review proceedings, even though
post-adjudicative intervention would not be allowed for the purpose of reopening
proceedings in the trial forum).

The Court of Appeals may also properly consider the Affidavits filed with this
Motion, even though the Court normally does not consider evidence not presented at

the trial Court, where consideration of the affidavits clarifies the record. See People v
Nash, 244 Mich App 93; 625 NW2d 87 (2000) (appellate court considered affidavit of
court reporter). Further, it is submitted that the factual errors noted in the Affidavits may
also be identified within the trial court documents contained within the record already in
the Court of Appeal's possession.

B. Factual Errors
As set forth in the Affidavits, there are several factual errors in the Court of
Appeals' Opinion that bhould be corrected. They do not appear to have any basis in the
record, and were not presented in the parties'appellate briefs.

1. Defendant Father Filed an Obiection to the September 5. 2014


lnterim Order.
On Page 2 of the Court of Appeals September 15,2015 Opinion (Ex. 1), second
paragraph, the Court discusses the father's April 8,2014 motion for change of custody,

and the subsequent hearing held on September 4, 2A14. The Court recites that the
Referee recommended denial of the father's motion to change custody, referred both
parents to a family therapist, and set a "parenting time hearing" for March 4,2A15. The
Court's Opinion then states. "Father did not seek a de novo hearing or an appeal."
However, the record in this case reflects that the father, through counsel, filed an

objection which was subsequently denied by the trial

Court, (See Defendant's

Objection to Referee Report & Recommendation Dated September 4,2014, attached as

Exhibit 6; Ex.
Item

3).

This filing was referenced in the trial Court's Register of Actions as

#92. ln addition, both parties reference this fact on page I of their respective

Briefs on appeal. See Defendant-Appellee's Brief, page 8: "On September 29,2A14,

the Defendant Father filed an objection to the lnterim Order Adopting Friend of the
Court Referee Recommendation, dated September 5, 2014." See also PlaintiffAppellant's Brief, p

8:

"On September 29,2A14, the Defendant Father filed an objection

to the lnterim Order Adopting Friend of the Court Referee Recommendation, dated
September 5,2014;'

2. The Referee Did not Stamp the Judoe's Siqnature on the Order.
On page 4 of the Court of Appeals' Opinion (Ex. 1), second full paragraph, the
Courl stated:

Another procedural error occurred when, rather than issuing a


recommendation and proposed order, the referee stamped the judge's
name on the order chansing custody, thereby giving it immediate effect
and depriving mother of the opportunity to object to the referee's
recommendation before it became an enforceable order of the Court.
(Emphasis added).

As set forth in the accompanying Affidavits the Referee did not stamp

the

Judge's signature on the March 4,2015 Order, or any other Order. (Ex. 2, !JIJ3-4; Ex. 3,

fls). That is not the practice of the Circuit Court. (Ex. 2, fl6), Rather, Judge Reader
personally signed the Order, and dated it accordingly in his own hand. (Ex. 2,

Ex. 3,

t[5). lt does not appear that either of the parties to this appeal

11113-4;

made any

arguments to this effect in their respective briefs. lt is unknown how the Court came to

this conclusion, as there does not appear to be any support for it in the record (nor
could there be, as it never happened).

lndeed, the parties' Briefs reflect their understanding that Judge Reader actually
signed the lnterim Order. On page 4 of Plaintiff-Appellant's Brief it states:

"The parties were ordered to attend a parenting time review on March 4,


2015, wherein the Referee recommended modifying the parties' custody
order, relying on ex-parte communications and witness testimony, which
were not subject to cross-examination by Plaintiff-Appellant. Without
conducting a proper evidentiary hearing, the 44th Circuit Court adopted
the Referee's recommendation on March 4,2015." (Emphasis added).
Further, on page

of Plaintiff-Appellant's Brief it states:

"A review hearing was conducted on March 4,2015, wherein the Court
modified the parties' custody order and the custodial environment of the
parties' minor child based upon the recomnendations set forth by the
Referee." (Emphasis added).
Most telling is the statement on page 8 of Plaintiff-Appellant's Reply Brief:

"ln this matter, Plaintiff-Appellant immediately objected to the Friend of the


Court Recommendation, which was signed bv the Trial Court as an Order
temporarily modifying custody on March 4,2015." (Emphasis added).
3., The March 4 . 2015 Order Was an lnterim Order. and Alwavs
ldentified ag-an lnterim Order.

On page 4 of the Court of Appeals' September 15, 2A16 Opinion, footnote 5, the
Court explained why MCR 3.215(GX1) was inapplicable in this case, in part because

"the order issued by the referee under the judge's signature was

permanent, not

'interim' order." (See Ex. 1, p 4, n 5).

This statement of fact is erroneous, because the Circuit Court's March 4,2A15
Order was at all times entitled "lnterim Order Adopting Friend of the Court Referee

Recommendation." (Ex.

5), This was consistent with the Court's practice to label all

such lnterim orders as "lnterim." (Ex. 2, flS; Ex. 3, 116). lt is unclear how the March 4,
2015 lnterim Order, clearly labeled as such at all times, could be construed as anything
other than an lnterim Order. !t was definitely not a permanent Order. (Ex. 2, flS; Ex. 3,

116) Plaintiff-Appellant's Briefs clearly recognized that this was an "interim Order," with
Plaintiff-Appellant's Brief at page 12 stating:

The Court allowed the interirn ordgr to stand until the evidentiary hearing
is completed. (Ernphasis added).
Further, on pages 21-22 of Plaintiff-Appellant's Brief and page

of Plaintiff-Appellant's

Reply Brief it is stated:

The Trial Court stated, "l am finding that the hearing itself was not
complete and should be continued. As a consequence, I'm going to
allow the interim order at this time to stand as an interim order until the

evidentiary hearing is completed." ... The interim order entered on March


4, 2015, rnodified the current custodial order of the parties' minor child
which violated the requirement set forth in Mann,. . . (Emphasis added).

Again, it is unclear how this Court could make this misstatement of fact, when
there is no support for it in the record, nor is it contained in either of the parties' Briefs
on appeal

4. Judqe Req*rr Did Not Add the Term "lnterinl" to the

Inte.rim

Order.
On page 5 of the Court of Appeals' September 15, 2015 Opinion, the Court notes
that the trial Judge found that the hearing resulting in the March 4,2015 lnterim Order

was incomplete, and that the tnterim Order it would stand as an lnterim Order until the
evidentiary hearing is completed. The Court's Opinion then erroneously states: "The
judge also added the word 'interim' to the order that had been entered on March 4."

As noted above, the March 4,2015 lnterim Order was designated as such from
its inception, consistent with the Court's practices. (Ex. 2, flS; Ex. 3,

t[6).

The "lnterim"

designation was printed in the title of the Order at the time it was drafted by the Referee.

(Ex.

5).

According to the accompanying Affidavits, the lnterim Order was always

designated as such, and the trial Judge did not add the word "lnterim" to the Order. (Ex.

2,

115;

Ex. 3,

fl6). There is no support in the record for this Court's factual assertion

otherwise, and neither party mentioned it in their Briefs on appeal.

C. Failure to Correct Factual Errors.


The factual errors set forth above must be corrected by this Court. Failure to do
so results in misleading the public as to the Circuit Court's actual practices with regard

to the issuance of lnterim Orders following a Referee hearing. By stating as fact the
false assertion that the Circuit Court has a practice of permitting the Referee to issue
permanent orders by inserting the Judge's signature by use of a stamp, the public and
practicing attorneys may challenge the Court's Orders issued in other cases.

Perhaps the worst ramification of the Court of Appeals' erroneous statement of


facts with regard to the Circuit Court's practices, i.e., stamping the Judge's signature on
Orders, is the suggestion on page 5 of the September 15,2015 Opinion that such an
inappropriate use of this type of authority violates due process, such that the Judge
could be sued individually because giving someone else authority to issue immediately
effective orders under his authority "was an 'administrative act' and not a 'judicial act'
protected by immunity." (Ex. 1, p 5).

The Court of Appeals' Opinion went so far as to cite the case of Raffe v Corrigan,

989 F Supp 2d 550 (ED Mich, 2013), in which a child was removed from his father's
custody by MDHHS using pre-signed orders. The Federal Court held that the Judge
who gave this authority was unprotected by judicial immunity. (Ex. 1, p 5).

The Court then chastised Judge Reader:

ln this case, the practice allowing the referee to stamp orders with the
judge's name is improper for exactly the same reasons. The referee had
no authority to issue an immediately effective order changing custody.
And the judge cannot give carte blanche permission for the referee to sign
his name without the judge ever seeing the order or knowing anything
about the case.

Thus, the publication of the false notion that the Circuit Court employed a
practice in this case that is not only violative of due process, but is actionable against

the trial Judge notwithstanding judicial immunity, may result in lawsuits against Judge
Reader, to which the Court and County (or the State) will have to expend time and
resources to resolve. Moreover, perpetuation of this false assertion is unnecessarily
embarrassing not only to Judge Reader, but also to the entire Circuit Court, and the
judiciary as a whole.

The effects are already being

felt.

The "grossly improper" actions by the

Livingston County Circuit Coutt and the Friend of the Court Referee as set forth in the

September 15,2015 Opinion were widely reported in a weblog addressed to appellate

court practitioners throughout Michigan. (See Michigan Appeals weblog, attached as


Exhibit 7).

The case was also repoded in Michigan Lawyers Weekly, with commentary from

the parties' attorneys, but ethics rules prevented Judge Reader and Referee Marran
from commenting on the case. (See Michigan Lawyers Weekly article, attached as
Exhibit 8). However, one of the attorneys quoted in the article publicly questioned the
accuracy of the facts set forth in the Opinion.

ln addition, the case was reported to the general public in the Livingston Press &

Argus, in which the factual errors identified here were disseminated. However, an
attorney is quoted in the article as being troubled by this Court's "obvious error,"
especially when impeaching the character of a well-respected judge. (See September
29,2A15 Livingston Press & Argus article, attached as Exhibit 9.)

GONCLUSION AND RELIEF

For all the foregoing reasons, Livingston County Circuit Judge David J, Reader
respectfully requests that this Honorable Court review the facts presented in this Motion,
issue a corrected Opinion resolving this appeal, and grant Judge Reader such other and

further relief as may be required.


Respectfu lly submitted,

COHL, STOKER & TOSKEY, P.C.

Dated: September 29, 2015


M. Perrone (P37940)
Cohl, Stoker & Toskey, P.C.
Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. CapitolAve.
Lansing, Ml 48933
(s17) 372-9000
n:\client\livingston\circuit

coufl\litigation\ncconchie v voight\brief in support of motion.doc

10

Exhibit

STATE OF'MICHIGAN
COURT OF APPEALS
ANGELENA JOY MCCONCHIE,

FOR PUBLICATION
September 15, 2015
9:20 a.m.

PlaintifLAppellant,

No.

326651

Livingston Circuit Couft


Farnily Division
LC No. 1A-A44132-DZ

JOSHUA DAVID VOIGHT,


f)efbndant-AppelIee.

Before: Sawven, P.J., and M. J.I(slt-v and SHnprRo,


Srtaptno,

JJ.

J.

This is plaintiff tnotlter's appeal from a March 4,2A15 order changing prirnary physical
custody of the cliild fl'orn mother to defendant father. We vacate that order because it was issued
and entered in violation of multiple procedural rules and substantive requirements, including:
lack of a motion to change custody; failure to hold a full hearing, failure to make a deterrnination
regarding the child's established custodial environment, and failure to make a determination that
propel' cause or a change of circumstances justified reconsideration of the child's custodial
situation.
Tlie palties lived together for several years. In 2009, they had a child. On November 4,
2010, an order was entered granting mother sole legal and physical custody of the chiid.l On
Decenrber 22, 201A, father filed a tnotion to have both legal and physical custody changed to
joint. The parties reached an agreement resulting in dismissal of that motion and entry of a
consent order on April29,201 I that gave the partiesjoint legal custody, but gave "sole physical
custody" to mother witlt "teasonable and liberal [parenting tirne] as the parties agree." However,
the order stated that the pafiies were living together and so child support was not ordered.
On September 18,2013, father filed a motion to change custody. On the tlate set fbr
hearing, tire parties reached an agreement and a consent order was entered providing that father
was to have parenting tirne altcrnate weekends and one midweek evening. 'l'he ordel also

I It is not clear fi'om the record whether the pzuties were continuing to reside together at that
time.

-1-

ref'erred the matter to the Friend of the Court (FOC) for a statutory review of child

supporl. On
December 3, 2A73, the FOC issued a Notice of Intent to Enter Proposed Child Support Order
providing for child support payments of $303 per month fi'om father to mother. On l)ecember 6,
2013, father filed otrjections to the praposed child support order. On February 28, 2014, the
referee heard the objections, found that the FOC recornrnendation was accurate, and prepared a
recommended order.

On Aplil 8,2014, father filed a motion for change of custody, alleging that the child was
unsafe at mother's apartment because of an incident on March 29,2A14, when the five-year old
chiid wandered into the hallway while his rnother was asleep and was accidentally locked out of
the apartrrent. T'he child was unhurt. Child Protective Services (CPS) investigated the incident
and rernained involved with rnother and chilcl for several months.

A hearing on the rnotion

to

change custody was held on Septernber 4,2014. At the hearing, the CPS worker assigned to the
case testified that the child was safe, mother's home was adequate, the incident was accidental,

and--contrary to father's allegations-the mother did not have a substance abuse problem.
!'ather also testified. The referee found that the child's established custodial envirorunent was
with rnother and tliat there was neithcr proper cause nor a significant change in circumstances to
justify considering a change in that oustodial environment. Accordingly, slie denied thther's
rnotion to change custody. The order also referred both parents to a farnily therapist and set a
"parenting time heating" for March 4,2015. Father did not seek a de novo hearing ol an appeal.
When the parties convened for that "parenting tirne hearing," the referee entered an order
immediately transfeuing prirnary physical custody to the father. We vacate that order as it was
the result of numerous legal errors.

The first two enors occurred before the referee's ruling and constituted violation of
rurother's riglit to due process:
Due process is a flexible concept, the essence of which requires fundamental
fairness. The basic requirements of due process in a civil case inslude notice of
the proceeding and a meaningful opporhrnity to be heard fAl-Maliki v LaGrant,
286 Mich App 483,485; 781 NW2d 853 (2009) (citations omitted).1
The first violation occurred when a change of primary physical custody was considered at the
March 4,2015 hearing even though no motion to change physical custody was pending. Father's
October 2014 rnotion had already been denied without appeal, no new rnotion had been filed,
and there was no emergsrlcy that required the court to dispense with the requirements of fair
notice provided by the rules governiug rnotion practice and as a matter of due process.
'I'he second violation occurred dur:ing the hearing. Father's counsel conducted a direct
exaurination of. the family therapist. 'l'he therapist's testirnony was, for the most part, a recitation
of father's allegations that rnother's prescription rnedications, either as a result of abuse or'
prescribecl use, were preventing her frorn waking up early enough in the morning to take the
child to kindergarten, which resulted in several absences. The therapist opined that father's
allegtitions regarding possible substance abuse rnight be true, and she expressed oonceill that tho

.)

child had missed rnultiple days of kindergarten.z When rnother's counsel sought to clossexamine the therapist, the referee stated that there was little tirne left in the single hour that had
been set aside tbr the hearing. Further, she required that if mother's oounsel wished to crossexarnine father's r,vitness at all, mother would have to pay the witness at her professional rate for
the time spent on cross-exalnination. Moreover, the referee did not afford any time for rnother to
call her own witnesses nor did she continue the llearing for completion on another day. The
referee's actions denied rnother an opportunity to be heard on a motion to change custody that
had not even been filed and noticed for hearing.
The referee made several substantive errors in the course of rnaking her ruling, including
what appears to be a cornplete disregard of the substantive law governing a oourt's decision
when considering a change of ctistody. These requirernents are well-known and clearly set out in
YodvarkavGrasmq,er,259 MichApp 499;675 NW2d 841 (2003). First,therefereedidnot
find that father had established proper cause, i,e., "one or more appropriate grounds that have or
could have a significant effect on the child's life to the extent that a reevaluation of the child's
custodial sittration should be undertaken," nol'did the referee find that father had established a
material change of circumstances, i.e., that "since the entry of the last custody order, the
conditions surrounding custody of the child, which have or could have a signi,/icont effect on the
clrild's weli-being, have materially changed." Id. at 511, 513 (ernphasis in original). In the
absence of sucli a finding, which presumably would only be made after a motion was filed and
the nonmoving party had an opportunity to tespond, it was improper for the referee to even
consider a reevaluation of the best interest factors and the child's custodial situation. See iri, at
5i1, 513.3 Second, the referee failed to make a determination regarding the cliild's established
custodiai environment even tirough such a firiding is necessary in order to deterrnine the burden
of proof. See id. at 509. Third, the referee made no mention of the best interest factors prior to
ordering the change in custody. See fu/. at 516. Slie appears to have realized her error after the
parties and their attorneys had left the courtroom and later that day, without the presence of
parties or counsel, stated her best-interest findings from the bench.a

At a subsequent

hearing, the referee stated that the failure to follow the Yodvarlca
framework did not matter because she had merely changed parenting time, not custody. This
suggestion is directly contradicted by the language of the order, which expressly provided that
father would be the "primary custodian of the child." The referee also suggested that there was

The therapist testified that the child, according to father, had missed 22 days of kindergarten. It
was later revealed that the child only missed 1 I days.
3 Tn Vodvarka, we explained that tht: initial requirernent that the cour"t find proper cause or
change of oircumstances before reevaluating the child's custodial situation was "intended to erect
a barrier against reuroval of a child frorn an established custodial environment and to minimize

irnwarranted and disnrptive changes


(intemal quotation omitted).

of custody orders." Vodvarka, 259 Mich App at 509

a Mother argues that the refbree's findings on best interest were in error; however, we wiil not
discuss those arguments in light of our decision to vacate the order because of other errors.

-3-

no such thing as "primary plrysical custody" in the law and that any issues regarding which
parent provided the horne for the child were merely parenting-time issues. Contrary to the
refbree's statement that physical custody is not mentioned in the Child Custody Act, MCL
722.21 e{ seq., the phrase does appear in section 26a of that Act. See MCL'122.26a. Second, the
meaning of the term "physical custody" has been well and repeatedly explairted in caselaw. See
Dailey v Kloenhanter,29T Mich App 660, 670; 81 1 NW2d 501 (201 1).

The referee's observation is correcl insofirr as we have recognized that not every
modiflcation of parentir-rg tirne amounts to a change of physicai custody and that the terms
"physical custody" and "parenting tirne" are sometimes used without precision. Moreover, it is
not ahvays easy to ascertain at lvhat point parenting-tirne changes rise to tire level of a change in
prirnary pirysical custody, This was recognized in Shade v l{right,291 Mich App 17, 27; 805
NWzd i (2010), where lve held that not all changes to parenting time are so significant that the
child's established custodial environment is altered. We noted that the prirnary concern in child
custody determinations "is the stabilify of the child's environmeut and avoidance of unwauanted
and disruptive custody changes," while "the focus of parenting time is to foster a strong
relationslrip between the child and the child's parerts." Id. at 28-29. In this case, the basis for
the custody change was father's allegation that the mother was not providing a stable
environmerrt, not that schedule changes should be made to assure his continuing lelationship
with the child. Further, the degree of change in this case is anything but ruodest. Father now has
physical custody of the child all but every other weekend, which is the complete opposite of the
previous arangement. By contrast, in Shade, the change in parenting time resulted in a net
reduction of about nine days per year in parerrting time to the nonmoving party. [d. at27 tt3.
While there ale cases where the line between a parenting tirne change and a custody change can
be difficult to discern, this is not one; the facts in this case clearly speak to a change of custody.
Tliis was implicitly recognized by the leferee, given that the best-interest factors she reviewed
fi'or-n the bench were those set out in MCL 122.23, which are used in deter-mining cr:stody, not
tlrose set out in MCL722.27a(6), which govern parenting-time decisions and by the text of the
order changing the child's primary custodian.
Another procedural error oocured when, rather than issuing a recommendation and
proposed order, the referee stamped the judge 's name on the order changing custody, thereby
giving it irnmediate effect and depriving mother of the opporlunity to object to the referee's
recommendation before it became an enforceable order of the court. Absent a request for an
emergency change (a reqnest which was not made and for which there was no basis), during the
}l-day period following a referee recommendation, the status quo is to remain in effect and if
objections are filed, the objecting party is entitled to a de novo review or hearing before the
judge. MCR 3,21s(EX4).5

A trial coud has the power to, "by an administrative order or by an order in the case, provide
that the referee's recommendation will take eft-ect on an interirn basis pending a judicial
hearing." MCR 3.21s(GX1). This provision, however, has no applioation to this case. First, the
order issued by the referee under the judge's signature was a pennanent, not "interitn" order.
Second, the court rule explicitly states that no adrninistrative order may give interitn efl'ect to a
referec's order that changes a child's custody. MCR 3.215(GX3X1r.
-4-

'lhe inappropriate use of this type of aclninistrative authority was the subject of a recent
federal court decision involving the removal of a child from his parcnts because his lather had
given hirn a "Mike's Hard Lemorlade" at a baseball game without realizing that it contained
alcolrol. Ratte v Cotigan,989 F Supp 2d 550, 553 (ED Mich,20l3). The Departrnent of Health
and Hurlan Services (DHS) removed the child using pre-signed orders that the judge had
provided for their use. 1d, at 556. One of the issues was that the DIIS wrote the order on a form
that the judge had pre-signecl. Id. The lbderal district court lield that this practice violated due
ptocess. Id. at 561. Indeed, the court held that the judge could be sued individually because
giving authority to sorneone else to issue orders under her authority was an "administrative act"
and not a 'Judicial act" protected by immunity. Id. at 560-561. In this case, the practice
allowing the referee to stamp olders witir the judge's name is improper for exactly the same
reasons. The referee had no authority to issue an immediately effective order changing custody.
And the judge cannot give carte blanohe pennission for the referee to sign his name r,vithout the
judge ever seeing the order or knowing anything about the case.

Mother tirnely objected to the March 4,2A15 order, and the case was reviewed by the
judge who lecognized that a flill hearing had not taken place. Howevcr, rather than vacating the
order and schedr"rling a proper hearing, the judge stated, "I am finding that the l-rearing itself was
not cornplete and should be continued. As a consequence, I'm going to allow the interim order
at this tirne to stand as an interirn order until the evidentiary hearing is cornpleted." The judge
also added the word "interim" to the order that had been entered on Malch 4.
Despite being directed to complete the hearing, the record on appeal contained no
indicating that it was ever completed. Accordingly, through the clerk's office, we directed the
parties to provide copies oforders entered since thejudge's order that the hearing be reconvened
and completed. Based on the orders the Court thereafter received from the parties, we take
judicial notice, MRE 201, of the subsequent proceedings,
Rather than completing the hearing as ordered by the judge, on May ll , 201,5 , the referee
refeued the case to the Friend of the Court for "an expedited review of parenting time." Mother
filed objections to this order and on June 29, 2015, the judge issued an order stating that "the
custody hearing has not been completed and . . . the Referee in this matter shall cornplete the
custody hearing forthwith." Nevertheless, the court continued the "interirn orders" until the

conclusion of such hearing, which as of oral arguments before this Court had not yet been
convened. Thus, the irnproperly decided and improperly issued Mareh 4 order that changed
primary physical custody fi'om mother to father remains in effect.

The rnanner in which the change of custody was ordered was grossly improper. The
order is vacated and the child shall be returned to the primary physical custody of mother.
Thereafter, father, should he wish to do so, may file a proper motion for change of custody.
Should he file such a motion, we t'urther direct that all proceedings relevant be conducted on an
expedited basis and that all such prooeedings be conducted directly by the trialjudge rather than
referred to the referee. MCR 7.216(A)(7), (9).
Taxable costs to appellant as the prevailing party. MCR 7.219(A).

/s7

Douglas B. Shapiro

/s/ Michael J. Kelly

-5-

STATE OF MICHIGAN
COURT OF'APPEAL
FOR PUBLICATION
September 15,2015

ANGELENA JOY MCCONCHIE,


Plaintiff-Appellant,

No.

326651

Livingston Circuit Court


Family Division
LC No. 10-444132-DZ

JOSHUA DAVID VOIGHT,


Defendant-Appellee.

Before: SAwyER, P.J., and M.


SewvrR,

J.

Krlly

and SuaRIRo, JJ.

.J. (dissentittg).

I respeotfi.rlly dissent.

Wrile I do not necessarily

with the reasoning of the majority and its conclusion


that this matter was mishandled by tlie referee, I do disagree that the best remedy is to reverse the
lower couft and have it start over. I reach this conclusion in light of the trial courl's indication
that the referee's recommendation would only constitute a temporary order pending a full
resolution of tire rnatter and an entry of a final order. At this stage, I believe that the better and
more expeditious resolution of this case would be merely to remand the matter to the trial court
with directions that the trial court itself sirall conduct the evidentiary hearing necessary to reach a
final disposition of this rnatter and to prornptly enter an order reaching a final resolution of this
matter. Thereafter, any party dissatisfied with the trial court's resolution of the matter could
disagree

pursue an appeal.

/s/ David H. Sawyer

-1-

Exhibit 2

STATE OF MICHIGAN
IN THE COURT OF APPEALS

ANGELENA MCCONCF,IIE,
Plaintiff-Appellant,
V

Court of Appeals No. 326651

JOSHUA DAVID VOIGHT,

Livingston County Circuit Court


Case No. 10-44132-DZ

Defendant-Appellee.

Neal D. Nielsen (P26577)


Attorney for Plai ntiff-Appellant
2000 Grand River Annex, Suite 200
Brighton, Ml 481 '14
(810) 227-7777

Christine M. Heckler (P73382)


Heckler Law Office
Attorney fo r Defendant-Appellee
8163 Grand River Ave., Suite 100
Brighton, Ml48114
(810) 227-1700

David G. Stoker (P24959)


Timothy M. Perrone (P37940)
Cohl, Stoker & Toskey, P.C.
Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. Capitol Ave.
Lansing, MI 48933
(517) 372-e000

AFFIDAVIT OF JUDGE DAVID J. READER


l, Judge David J. Reader, being first duly sworn, state as follows:

1.

I am the presiding Judge of the Livingston County Circuit Court in the abovecaptioned matter. I make this Affidavit in support of my Motion for Correction of Opinion
in this appeal. The statements contained in this Affidavit are true to the best of my
knowledge. lf sworn as a witness, I am competent to testify to the truth of the matters
asserted.

2.

After the September 4, 2A14 hearing on the Defendant father's Motion for
Change of Custody, the Referee recommended denial of the father's Motion, and set a
"parenting time hearing" for March 4, 2015, as set forth in an lnterim Order dated
September 5,2014. I personally signed the lnterim Order, and dated it "9-5-14." A
photocopy of the original order is marked Exhibit "A" and attached to this affidavit. The
photocopy clearly shows affiant's original signature.

3. After the hearing on March 4, 2015, the Referee recommended "extended


parenting time" to the Defendant father, and "reasonable parenting time" to the Plaintiff
mother, as set forth in an lnterim Order dated March 4, 2015, signed by affiant. A
photocopy of the original order is marked Exhibit "8" and attached to this affidavit. The
photocopy clearly shows affiant's original signature. This Order is the subject of appeal
to the Court of Appeals in this case.
4.

With regard to the March 4,2015 lnterim Order recommended in this case by
Referee Lori A. Marran, I personally signed the lnterim Order with my own hand on
March 4,2A15, and inserted the date of my signature next to my signature. The order
was not signature stamped.

5.

The March 4, 2A15 lnterim Order issued in this case by Referee Lori A.
Marran was at all times labeled as an "lnterim Order," consistent with the Court's
practice, and I did not add the word "lnterim" to the title of the Order or anywhere else.
The word "lnterim" always appeared in the Order and was not later inserted after
signature by affiant.

6. ln contested referee hearings where lnterim Orders may be recommended


there is no "Carte Blanche" authorization given by atfiant for a signature stamp to be
used by a referee in lieu of affiant's original signature; recommendations in such cases
by a referee are reviewed by affiant personally. Further, affiant is not aware of an
lnterim Order in any contested referee hearing on any domestic file assigned to affiant
being approved by other than an original signature of affiant or a Judge assigned to the
Circuit Court acting in affiant's absence.

MTCHTGAN

couNTY oF L|VINGSTON

STATE OF

Subscribed and sworn

S+kudQgl,
ttt)ttt))

to

before ffie,

Notary Public, tnis

'ZQ

Oay of

2015, bv Judge David J. Reader.

,rrll

,)

Notary
County of Livingston, Michigan
Acting in the County of Livingston_
My commission expires: Q-to-2'olq

a:\-clipnt\l!vinliton\circuit courtUitigation\mcconchie v voight\aff of judge reader.doc

Stiltu oJ'Micltigutr
the Ftmily CourtJ'or the Coutttl' of Livingsrtrt
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..\n gelen',t iVI c Cun ch ie

Plainiiii

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Joshun Voighr
f)eienclar:t

File hlo. 1U--lJl3?-DZ


Jurlge: David J. Reader
Refereer Lori A. Nlarran

C
US

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lnterim Orrler rlioptitrg Friend of the Court


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of suirl Coutt, ltcl.J irr the Counr'sour ol thc F"rmily Cqun ilt

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ab,-',ve entirlerl nrltter wiis sct tbr a Rcl'eree hearing bef.,re Lori A, ilIurran on Scplcnrber3. 101{.
The p.r[ties rppeared 0s rroted ru the Rel'eree Report and Recomnrcrrdaiic:n orr this sarle date The
Ref'eree ltavtrtg heard tlre palties and their artorne) (rt-any) irr accotdance ,,vith IUCR 3 2li, rnade a
Recommendnti,:rt. 'fhe Releree's Recomntendntion rvhiclr is'ret forth belorv, shall become an Orderol

Tlte

the Courl, urrless rvritten objections are t'iled with the Court, and the objecrrons arc properly noticed for
hearirrg bclore the Judge assignecl to rhe case, rvitltin 1[ <lays, as set forllr in the notice containerl irr the
Referee's Report trrcl Recontrnettdntion. The Court beirrg tirlly adlised in the prernises rnakes tlie
fb llorving detelnr inations:

IT IS }IEIIEI}Y ORDERED:
The request r,l Defendant Joshuir Voight tbr moditicalion o[:cusrody of thc minor child is denied.

lf

either parent is to be arvay liom tlre minor child during their parenting time tbr more lhan 4 hours, thar
parentshlll give the otherpetrent the firstright to care l'orthe child priortoanyotlrerperson. lltlre
exercise olfirst reftrsalexlencls past the child's bedtime, thc child shallspend the night in the residence
of tlre porent exercising the option and the child shall be picked up in the nrorning by the parent ivirh thc
regularly :lcheduled parenting tinre,
Tlre pyrrties slrall engage rvith Dr, Chirrlene l(ushler Plr.D., lu86 Charles l"l. Orndorl'Drive, Blightorr, Vli
481 I 6 tB l0) 229-8074 tbr therapl' to address issues related to co-parenling and gomrnunicittion. Each
ltppointnretrt. The cost for therepy shall be apportionecl belrv,.:en tlre parties accorrling to the Urrilbrnr
Cltitd Support Order cltted lvlarch I 0, 20 14, Plain tiff shall bc bilted lbr 3 i% of rhe cost and Delbndant
shall be billerl {br 65%o o1'the cost.
Pelenting tinre shall bc revierveit by the ret'eree on: Nlurch

,\li prior Ordcrs

-1,

20t5 at 9:00 c,m.

r,vhich arq'rlot irtcorrsrstertt r,rith tlris Ordcr;lxr:lremain in

tirll lblce unrl elltcr.

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judge. Dlvitl J. llclrder
F.eleree : Luri A, \{ur r ni)

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Interitt Ordcr Adryting Frient{ 0f the Court


R eJb ru
n

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t il scs:ilr)n ol'siiitl ('rrrrfl. hcld in tlru C;rur [,'olrr ol't1:.: lrrulily i-r!llrt ill thu.lrrdiciitl ('utlttr.
r,rl M i uit t gittt on rltr s
Ci ty tr t' I lorr c il,

*H,',j,lr:

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l,rorc crrl.itled lnirile.' rlas lict lur o Rcl-:rec ltcttrittu bclc,rc Lori ;\. ivlalratr ort i\'lltr'clt d.2015
lhc ptrrl,cs;rp1>caletl as nutetl il tlit RLI'crsc Rcprrn ttttd Rcctrttttntttrlirliott olt tltri $,trtrt dale, 'l'ltc Relcrlu
ixrvrng hcard l!r parlrs nntl thcir lttorncy 1il' any) itt accurcloncc s rth ivlCl( 3 'l li. rnadc a
llecnrirrnentluti<rn.'l'irs l{cfcrcc's Rciornrnerdatiorr rvhiclt is sct lolth bclorv. sl'all b*{rrtnc ao Oxler of thc
Cou;1. rrn[:ss \r11ltcn otriijutr{)n$ rltu l]lerl rrit:r'lltc Court. Ulrd tlrtl objcctions urc propcrll rroticcd lirr
hcnrirg beforc thr: Jtrdgc nssigrru.l to thc r:asc, rvithin 2l'tlu1,s, ns sct forth irl thc n0tic uglttaincd in thc
Itefi.'ree's Rclr6rt an{ ltccommcndation. Thc,Court hcirrg f'ull1'rrdviscd it llrc prcatises tltitkes [hc
I hc

l,r

llou

IT

TS

irr

g rlt:tcrrninalrrirrt

IIERIii},r. OITI)IiRE,I):

l,lctl.lrlrlrrt.[oslrrr;r lariglrt is grantccl c.rrcnclctj parenti'nll tinrr: n'ith thc trtnor clrilcl C:olc
MrCprir:lric, $grrr 0?i211?009. l)c'crrrlaut shall be thc prirlrrr)'c.rstodian ol'ltrL'chiltl
,'hc pai tic.s sl:itllcontinuc t0 trcnt with I)r. C'hurl:nc Krrslrlsr [)lr,l), tp rttltiiui,; isr;ucs lcBilrdiilg
cp. pirlc rlti rtg 3!l(l c(1ill111 ttll'rcirtton'

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lr4c(.!rpcfiicisgriuttr..(l rco.trlrral:lcF{lrcntinBlimr:uttirllct,t,rrr:r.'ccL'crtclslirrrti

lrrir{u.r rrt fi.0t} p.nr l,lrlorrgh Surrdal,rr{ 6:00 p.rn, I)clertrlitnt .cliirll lltovicle all ehild cBrL

il'l}lflilliill'

ilrrr.,rkitrg.
pltrticstlr.: lsf{trt'cl to Kirrcn Loclt []ryrre lv'A t'l'C' ll0 tj' Gr:rnrl liircr \r' ' Ho'r':ll ]41
{88{jilil0),1.}?-003:1 rocr.rrnplctcul:irruih,,,\liscssnrunl. l'laintrlfslrall hetc',portsitrlcl'ori5n.,
()I thc C{)s{ urrcl t)cl'urrlaut sltall bc rusputtsibL: lilr 65ni ol'thc corit.
-t'he

i';rrrriit';rtTittt,.,,ltall tlururir:irr,tl h5'tlrcl'cicr';crrtt.tVl,t,r'll'i:ili:rt

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pi'rt'r C)rtlur'' rrhtclt ltrc lttit tllr;ol1':istritlt rvith this

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lJilpn:.

Exhibit 3

STATE OF MICHIGAN
IN THE COURT OF APPEALS

ANGELENA MCCONCHIE,
Plaintiff-Appellant,
V

Court of Appeals No. 326651

JOSHUA DAVID VOIGHT,

Livingston County Circuit Court


Case No. 1O-44132-DZ

Defendant-Appellee.

Neal D. Nielsen (P26577)


Attorney for Plai ntiff-Appe llant
2000 Grand River Annex, Suite 200
Brighton, Ml 48114
(810) 227-7777

Christine M. Heckler (P73382)


Heckler Law Office
Atto rney fo r Defend ant-Appel lee
8163 Grand RiverAve,, Suite 100
Brighton, Ml 48114
(810) 227-1700

David G. Stoker (P24959)


Timothy M. Perrone (P379a0)
Cohl, Stoker & Toskey, P.C.
Attorneys for Livingston County
Circuit Judge David J. Reader
601 N. Capitol Ave.
Lansing, Ml 48933
(517) 372-9000

AFFIDAVIT OF REFEREE LORI A. MARRAN

l, Referee LoriA. Marran, being first duly sworn, state as follows:

1.

I am a Friend of the Court Referee for the Livingston County Circuit Court in
the above-captioned matter. I make this Affidavit in support of Judge Reader's Motion
for Correction of Opinion in this appeal. The statements contained in this Affidavit are
true to the best of my knowledge. lf sworn as a witness, I am competent to testify to the
truth of the matters assefted,

2. On April 8,2A14, the Defendant father filed a Motion for Change of Custody.
A hearing on the Motion for Change of Custody was held on September 4,2014. After
the hearing, I recommended denial of the father's Motion, and set a "parenting time
hearing" for March 4,2015, as set forth in an lnterim Order dated September 5,2A14.
The father subsequently filed a written Objection to this lnterim Order, which was denied
by the Court.

3.

After the hearing on March 4, 2A15, I recommended "extended parenting


time" to the Defendant father, and "reasonable parenting time" to the Plaintiff mother, as
set forth in an lnterim Order dated March 4,2015.

4.

The March 4, 2015 lnterim Order also stated that "Defendant shall be the
primary custodian of the child." Subsequent proceedings were held in the trial Court, by
which a full evidentiary hearing would be held on the issues contained in the March 4,
2015lnterim Order.

5.

The March 4,2015 lnterim Order issued in this case was personally signed
and dated by Judge Reader in his own hand on March 4,2015.

6.

Further, the March 4,2015 lnterim Order issued in this case was at all times
labeled as an "lnterim Order," consistent with the Court's practice, and Judge Reader
did not add the word "lnterim" to the title of the Order or anywhere else.

STATE OF MICHIGAN
COUNTY OF LIVINGSTON

)
)

Subscribed and sworn

Sqdala4,

to

before ffie,

Notary Public, this

Zo1s, by Referee Lori A. Marran.

4toru or
tl

al.n.Dzfu
County of tiuings*ft, Michigan
Livingston
Acting in
My commission expires: t ' 27' aat

t#ffiffit

n:\client\livlngston\circuit

court\litigation\mcconchie

v voight\aff of referee marran.doc

Exhibit 4

Stute oJ'tYl ichigurr


w
rt llt Fmfily {'uurt
the County oJ'Livinosturr

J'ot'

r\ngele n it NI r: Ct n chie

lllaintif't'

.i-'i)j)

l,,l

Joshua Voiglrt

File No, 10-+,1132-DZ

ti'':i

Juclge: David J. Rearler


Rel'eree: Lori r\. iVlarran

Defenclarit

C
,{r/
a

C'
a
r,l't
a cr<1,

Iilterint Order Adoptitrg friend aJ'the Court


R
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crlslitl Cuutt,

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lrul,J irt thc Courtroolu

City ol'l.lorvell, County of

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Tlte'*bovu eniitle,-[ nt{rtter was sct for a Referee hearirrg belirre Lori A. IVlarurn on Seplcnrber 3, ],01{,
The prtrties rppeared ils rloted in tlte Ret'eree Repor"t ilnd Rcconrnrcndation orr this sarne date. The
Rel'eree lrlvirrg lrcarrJ thc pnrties arrd their aftofrre) (if any) irr accordance rvith fulCR 3.115, rnatle a
Recomnxndatian, 'l'he Releree's l].ecomntenclation rvhiclr is set lortlr belorv, shall becom* un Orderof'
the Court, urrless rvrinen objectious are l'iled with thc Cr:ur[, an.d the objections arc properly noticed lor
hetring bclolc tlre Judge assigned to {he case, rvitltitr ? I clays, as set lorth in the notice contairrcrl in the
Rel'eree's Report tncl Reconrrnendation. The Court beirrg lirlly udvised in tlre prernises rnirkes tlre
fb I lorvi ng cleternr irrltions
:

IT IS }ItrITEBY ORDERED:
The request of Delendant Joshua Voight tbr motlit'rcation ot'custody of the minor child is denied.

If either Farent is to be atvay liom the minor child during their parenting time fbr more than 4 hours, rhat
parent slrnll give the other pilrerlt the first right to care lbr the child prior to ilny other person. Ilrlre
exercise of first lefirsalextends past the child's becltime, the child shallspend the niglrt in the residence
of the p&reflt exercising the option and the child shall be picked up in the nrorning by the parent rvith the
regularly schecluled parenting tinre,
1'lre pprtiut shnll engnge rvitli Dr, Charlene ltushler Ph.D., 1086 Charles I'1. Omdorl'Drive, Brighton. lvli
48116 {810) 229-8074 tbr therapy to address issues related t$ co1p-itrenting.an-(!eommunication, Eaclr

p.rrty-iIriil.l.contir.ii.E...}irrsh1irrortici.wirhirr".tlffit\ti"-anaimmiTeoT.Iii
Itllpointnletrt. The cost fbr thetnpy shall bc apporlionccl bct*ten the partics nccoriling to the Unilbrnr
Child Support Order dated lvletrcli 10,2014. Plaintift'shnll be billecl tbr35% of thc cost and Delbndant
shall be billcrl tbr 65% of the cost.

Pnlentingtime shall bc revierved by the ret'eree on; lvlarcli{, ?015 at9:00 t.m,

,\ll

prior Orrlcrs',vlrich are not itrc.rnsistent willt this Oruler ihaSlremuin in tirll lbrce uril eltect,

yco

[li" r J1

Jurlge

Exhibit 5

YOL

'

1-Ilutr COtr'Y
441.1I Circuit C,:uii

CountY Ctcrk';r Oliico

STATE OF MICHICAN
IN THE 44'h CIRCUIT COURT
FAMILY DIVISION
Angelena McConchie

Plaintiff

Case

No: l0-44132-DZ

HON, DAVID J. READER


Joshua David Voight

Defendant.
Neal D. Nielsen (P26577)

Attomey for Plaintiff


2000 Grand River Annex, Suite 200
Brighton, MI48l l4
{8t0)227-7777

Christine M. Heckler (P73382)


Heckler Law Office
Attorney for Defendant
8163 Grand River Ave., Suite 100
Brighton, Ml48l l4

$lq227-1700
DEFENDANT'S OBJECTION TO REFEREE REPORT & R.BCCOMENDATION,
DATED SEPTEMBER 4,2014
Defendant, Joshua David Voight, by and through his attorney, Christine
states as follorvs for his objection:

I.

M. Heckler,

A transcript request was made to the Circuit Court Administrator's Oflice on September
17,2014; however, the transcription service did not contact counsel to prepare the
trans*ipt until the date this objection was filed; thus, counsel reserves the right to amend
this objection upon receipt of the transcript.

2. If either party objects to a referee's

report, the trial coun must hold a de novo hearing.


MCL 552.507(4); Cochrane v Brown, 234 Mich App 129, l3 I -134; 592 NW2d 123 (1999).

3.

Pursuant to MCR 3.215, "[t]o 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."

4.

Referee Marran lountJ that "defendant did not meet his burden of proof by clear and
convincing evidence to warrant modification of the current custody order.'

5,

However, the proper standard applicable to the threshold question of proper cause or
changc in circumstances is only a preponderance:

Under the Vodvarka framework the threshold question in any


motion that would result in a change in the established custodial
environment is whether the moving party has established proper

cause or change of circumstances. MCL 722.27(l)(c); Vodvarka v.


Grasmeyer,259 Mich App 499; 675 NWzd 847 QA$). The moving

party has the burden ofproofby a preponderance ofthe evidence to


establish that either proper cause or a change of circumstances
exists. ld. at 509, Proper cause means one or rnore appropriate
grounds that have or could have a significant effect on the child's
life to the extent that a reevaluation of the child's custodial situation
should be undertaken. ld. at 5l l. ln Vodvarka, the Court of Appeals
held that grounds for proper cause should be relative to the twelve
best interest factors contained in MCL 722.23(a)-(l). The grounds
presented should be "legally sufTicient," i.e., they must be

of

magnitude to have a significant effect on the child's well-being to


the extent that revisiting the custody order would be proper, 1d. at
512.

6.

Furthermore, clear and convincing evidence is not necessary to change the terms of a
custody order when a change in those terms will not change the established custodial
environment. Milts v Mills, 152 Mich App 388 (19S6).r

7.

However, the Referee report lailed to identify


environment and with whom.

8,

tn this case, the Defendant Father testified that the PlaintiffMother had been substantiated
for negiec{gltgying an_incident in whiclr the child was &UnC lqleaming and rying in the
hallway of the Mother's apartment complex and neighbors called the police after the
Mother failed to respond to the S-year-old for over 30 minutes.

if the child

had a substantial custodial

.c.

9.

When &e police anived, Mother was found sleeping and had to be roused.

10. When the Father testified and/or attempted to testiry about further details, which were
included in the Friend of the Court Investigation Report, such as the fact that the CPS report
stated "there rvere lots of empty beer cans lying around the apartment; . . Angelena denies
having parties and excessive drinking; however, this has been reported by neighbors in the
complex", Referee Marran indicated that she could read the report herself, which left the
Father rvith the impression that the report was evidence.

l. The Referee report indicates that the Friend of the Court Report was not

considered,

however:

The Friend of the Court is authorized to investigate a child custody


dispute and issue a report and recommendation according to MCL

I While I

court order dctermincs custody it does not neccssarily establish a custodial environment. "Such on
environment depend[s] instead upon a custodial relationship of a significant duration in which [the child is] provided
thc parental care, discipline, love, guidance and allenlion appropriate to his age and individual needs; an environment
in both the physical and psychological sense in rvhich the relotionship between the custodian and the child is marked
by qualities of security, stability, and permanence;' Baker Baker,4l I Mich 567, 579-80 (1981).

552.505(lXg). The court's consideration

of a

report

and

recommendations submined under MCL 552.505(lXg) is not


subject to the rules of evidence. MRE I l0l(bX9). Considering
admissible evidence, such as live testimony, affidavits, documents,
or other admissible evidence was necessary for a trial coun to

properly make the determination or make the findings of fact


necessary to support its custody determination, Mann v Mam,l90
Mich App 526,532:476 NW2d 439 (1991).
See attached , Kallnnan v Danhoff, decided September 30, 2010,
295 r 60.

Mich App, Docket No.

of the Court Report recommends a change in custody with the Mother receiving
limited parenting time until'she addresses her "mental health and substance abuse" and
"financial and occupational stress."

12. The Friend

l3.in addition to the testimony

and Friend

of the Court Report, additional concerns have

occuned since the evidentiary hearing on September 3,2014t

a.

The child has missed three days of school in the course of,three weeks because the
Mother alleged the child was sick; however, when the Father picked &e child up
for parenting time he did not appear to be sick or report iliness; instead, the child
reported that the Mother did not wake-up to take him to school. Exhibit A.

Tr, Jn adrlition to missing sihooJ, there was one day when the Mothir failed to pick the
child up from school and the school had to call her after all the children had gone
home.

c. When Father came to pick the chiid up for parenting time in the aftemoon, the
Mother was still in her pajamas and robe and the child had not been fed a meal all
day; it appeared that the Mother had been sleeping or passed out all day.

d. The Father was notified that the Mother permitted

nude and inappropriate photos


of herself to be posted on Facebook, which is a public forum. Exhibit B.

14. These new concerns are consistence with the evidence and testimony that the Mother has
had a long-tenn problem with alcohol that inhibits her ability to function, including ge$ing
the child to school or making it to work, snd also impairs her judgment.

WHEREFORE, Defendant reguests that this Court grant his motion to modify custody and/or
parenting time.

Respectfully Subm itted:

Dated:

Q.zct.

tt-1

Christine M. Heckler (P73382)


Heckler Law Office
Attomey for Defendant

Exhibit 6

Stuta oJ'rt'[ichi,gurt
Itr tlrc lltntil-1, Courl J'or tha Crtutrls't{ l.itirtt.rttttt
A

rrgrlent Joy

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ful cConc h

Ililu No. ti)-04+ t32-D7.

illaintiff
.losh urt ilurid
l)e icnrlaut

Jrrrlgc: Dlvitl J. Itcrder


p.eleree: Lor.i A. \{u lrn*r

Vcight

Intcrim Ordcr Adopting Friend of lhe Court


R eJb

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Itavnrg hr.:a,'j' lh* pilr'lcs antl (hcir nttorns)' 1il' any) itt accrxclattco n i1l1 ivl(l{ 1,2 | i. rnadc a
llecorirnrunrlittitrtr.'l'irg llcftrrcc's RecomtncFdalirtn rrhich is sct lorlh bclorv, shall bccon:c an Or'tlerof'tlrc
Court, tprluss lrt.lttc6 ol$uctrans arc filed rritir tltu Coutt. utrd thu objcctiun:i urc propr:rl1 rroliccd lirr
lrenrirrg beforc thu Jrrclgunssigrr*il to tbe citsc, rlithin ll'drls, as scr lorth it the noticc r':ontained in tlrc
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Next Blog>

Cre;:te

tslog

liig;n ln

MICHIGAN APPEALS
A BLOG TO EXPLORE AND DISCUSS ISSUES AFFECTING APPELLATE PRACTICE, INCLUDING

RECENT CASES, PRIMARILY FROM THE MICHIGAN SUPREME COURT, MICHIGAN COURT OF
APPEALS, AND THE SIXTH CIRCUIT COURT OF APPEALS. THE APPELLATE DECISIONS EXAMINED
IN THIS BLOG COVER A WIDE RANGE OF FIELDS, SUCH AS FAMILY, CRIMINAL, EMPLOYMENT,
AND PERSONAL INJURY LAW.

THURSDAY, SEPTEMBER

17,

2015

LINKS

"Grossty lmproper" Actions by the Livingston


County Circuit Court and an FOC Referee in a
Custody Case
This week, the Court of Appeats reteased a pubtished opinion in
McConchie v Voight, Docket No. 326651 (September 15, 2015)
(Shapiro, J, author), addressing the "grossty improper" actions of
Judge Reader of the Livingston County Circuit Court and one of the

Speaker Law Firm Website

BLOG ARCH IVE

Y 2A1s (16)
V

September (4)

Standing, How Does lt Work?*


lnsane Ctown Posse ...

in regard to the custody of the parties'


chitd. Stip op at 5. The referee and judge viotated a host of wettestabtished procedural and substantive requirements in awarding the
father with sote physicat custody. The basic background is that the

"Grossty lmproper" Actions by

parties had a chitd together in 2009 and subsequentty entered various

the Livingston Count...

Friend of the Court referees

C0A utiLizes visual aid in tegat

matpractice case

consent orders that resutted in the mother having sote


cuslody and the parties having joint tegat custody, with reasonabte
parenting time for the father. ln Aprit 2014, the father fited a motion
for change of custody based on an incident where the mother had
fatten asteep and the chitd was locked out of the home. ln September
2014 the referee found the mother had the estabtished custodial
environment, and the father had not proven there was proper cause
physical

or change in circumstances to warrant a change in the estabtished


custodial environment. The referee atso ordered the parties into
famity therapy and set a scheduted a "parenting time hearing" in
March 2015. ,At this hearing, the referee ordered the immediate
transfer of sote physicat custody from the mother to the father.
The Court of Appeats exptained the shockingty expansive list of errors
committed by the FOC referee and the triat court. First, the referee

viotated the mother's constitutional due process rights by changing


physical custody even though the father had not fited a motion to do
so and by interfering with her abitity to cross-examine the famity
therapist and offer her own witnesses. The referee first indjcated
there was very [ittle time for cross-examination and if the mother
wanted to cross-examine the therapist, she woutd have to pay the

A Sympathetic Court of Appeals


Panel in a Section ...

)
>
)
)
>
>
>
>
>
>
>

August (3)
Juty (4)
June (4)

February (1)

2014 {16)

2012 (6)
2011 (6)
2010 (12)
2009 (20)
2008 (18)
2007 (22)

CONTRI BUTORS

therapist her hourty professionaI rate. The referee atso did not attow
the mother to calI any of her own witnesses and did not continue the
hearing to attow mother an opportunity to be heard.
The referee atso committed substantive errors in changing custody to
such a degree that the Court of Appeals described her decisions as
"what appears to be a complete disregard for the substantive law
governing a courfs decision when considering a change of custody."
Sl.ip op at 3. The referee did not make findings on proper cause or
change in circumstances, determine the chitd's estabtished custodia[

environment, and made no best interest findings before changing


custody. Apparently, the referee reatized her error and decided to
make a ruting from the bench on the best interest factors without the
parties or their counsel present, At a later hearing, incredibty, the
referee argued that her failure to fotlow the welt-estabtished law
governing changes of custody djd not matter because 1 ) she djd not

in her
"primary
physical
as
the taw

change custody (despite the directty contradictory language

order) and 2) there is no such thing in


custody."

The Court of Appeats addressed the referee's ctaim that the taw does
not have anything catted "primary physical custody." First, the Court
of Appeats indicated that casetaw repeatedty defines and describes
physical custody and MCL 722.76a of the Chitd Custody Act

specificatty mentions physicat custody. The Court of Appeals


recognized that there is not always a ctear distinction between mere
changes in parenting time and changes in an established custodial
environment. However, the Court of Appeats hetd that in this case
that the change was a change in custody was ctear because the order
changed sote physicaI custody to father atong with switching
parenting time lo give them the exact opposite of what they had
before, meaning lhe mother onty had every other weekend and a
weekday visit. The Court of Appeals atso noted that, despite her tater
ctaims, the referee seemed to be aware that her order changed
custody because she went back on the record to specificatty address
the best interest custody factors, not the parenting time factors.

The referee and trial court atso engaged in egregious procedural


errors wherein the trial court improperty detegated its judiciat power
to the referee. Specificatly, "rather than issuing a recommendation
and proposed order," as required under the Court Rutes, with an
opportunity for the parties to object and invoke the right to a de novo
hearing by the trial court, "the referee stamped the judge's name on
the order changing custody." sl,ip op at 4 (emphasis added)' The
mother was, therefore, deprived of her right to object to the order

Jenny Schu
Megen Mil.ter

Liisa Speaker

trial court has authority to


make a referee's interim order take immediate effect pending a
judicial hearing under MCR 3.215(G)(1), the trial court cannot give
immediale inlerim effect to a referee's order that changes custody
and have a de novo hearing. White the

under MCR 3.215(G)(3)(b), Further, the triat court itsetf was not even

the authority giving interim effect to the order. The Court of Appeats
hetd that the referee was comptetety without authority to give
interim effect to its order, and "the judge cannot give carte btanche
permission for the referee to sign his name without the judge ever
seeing the order or knowing anything about the case." Stip op at 5.

A fina{. issue was that after the mother objected to the referee's
order, the judge hetd a hearing and labeted the referee's order as
"interim" and ordered the evidentiary hearing be completed. This was
not sufficient to correct the referee's error, as the trial court had no
authority to give interim effect to a referee's order changing custody,
especiatty where none of the substantive requirements had been met.
Perhaps unsurprisingty, after the trial court's order, the referee again
did not do as required and did not comptete the hearings as ordered
by the tria[ court.
The Court of Appeats entered a very specific form of retief because of

the highty egregious actions of the triat court and the referee. ln
addition to vacating the triat court's order and returning primary
physicat custody to the mother, the Court of Appeats indicated that
the father must fite a motion to change custody for any proceedings
to proceed regarding custody. lf the father did fite such a motion, the
proceedings were to be expediled and the trial judge had to conduct
the hearings rather than referring them to the referee.

ln an interesting twist, Judge Sawyer dissented from the Court of


Appeats decision, not because he disagreed regarding the numerous

errors commitled, but because he did not agree with the retief
provided. Judge Sawyer thought the most appropriate remedy was not
to reverse or vacate the change of custody, but to remand the issue to
the triat court with directions that the trial court directty conduct the
evidentiary hearing and reach a finat resotution instead of having the
triai court "start over." Judge Sawyer fourrd this appropriate because
of the trial court's tabeting of the order as a temporary order pending
a fu[[ resotution of the custody issue.
ln tight of the current uproar regarding pubtished versus unpubl.ished
opinions, it is interesting that this opinion was one chosen to be
pubtished. Certainty, the case is fascinating and shows just how
wrong cases can go when procedurat, constitutionat, and substantive

requirements are ignored. However, atl of the law in the case is weltestabtished and clear, making it an interesting choice for pubtication,

as normatty pubtished opinions are used to address novel issues.


Regardtess of the reason for pubtication, this case certainty
demonstrates why procedurat and substantive requirements are in
ptace to ensure an opportunity to be heard and to prevent the
unnecessary removat of a chitd f rom an estabtished custodiat
environment without proof of the proper bases.

POSTED BY MEGEN MILLER

AT 10:49

AM

LABELS: 126651, CONSTITUTIONAL, CUSTODY, FOC, FRIEND OF THE COURT,


JUDGE READER, JUD6E SAWYER, JUDGE SHAPIRO, LIYINGSTON COUNTY,
MCCONCHIE, PARENTING TIME, PROCEDURAL, PUBLISHED OPINION,
REFEREE, SUBSTANTIVE, VOIGHT

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Exhibit I

Livingstoii County hearing referee 'grossly' mishandled custody case ...

http://nrilawyersweekly.corn/news/2015 /09l25llivingston-county-hear...

IlKLY
Livingston County hearing referee 'grossly' mishandled custody case

Appeals couft says mom's due-process rights violated


By: Traci R. Gentilozzi in News

Stories

September 25, 2015

A custody order must be vacated because the hearing referee not only violated the mother's due process rights
when entering the order, but also committed numerous legal errors, the Michigan Couft of Appeals has ruled,

In ircconchie v. Toigbf(M|LW No. 07-89724, 6 pages), the Livingston Circuit Court had awarded the plaintiff mother
sole legal and physical custody of the parties'S-year-old child. The pafties later agreed tojoint legal custody. After
the father filed a motion to change custody, the parties agreed to give the father certain parenting time.
The father then filed another motion to change custody, claimlng the child had been locked out of the mother's
apartment because she fell asleep, Child Protective Services investigated. At a hearing, a CPS worker testified the

mother! home was adequate, the lock-out was accidental and, contrary to the father's assertions, the mother did
not have a drug problem.
The father's motion to change custody was denied. The referee, Lori A. Marran, found the child's established
custodial environment was with the mother and there was no significant change in circumstances to alter it. A
parenting-time hearing was scheduled,
At the parenting-tlme hearing, Marran immediately entered an order transferring primary physical custody to the
father.
The Court of Appeals reversed in a 2-1 published decision written by Judge Douglas B, Shapiro, joined by Judge
Michael J. Kelly,

First, the referee denied the mother an opportunity to be heard on a motion that had not even been filed and
noticed for hearing, Shapiro said.
Second, the referee did not have the authority to issue a custody order that was immediately effective and a trial
judge cannot give a referee unfettered permission to stamp his name on orders, Shapiro said,
"The manner in which the change of custody was ordered was grossly improper," Shapiro said, ordering the child be
returned to the mother.

ludge David H. Sawyer dissented, saying the case should have been remanded for an evidentiary hearing and final
disposition by the trial court.

'Inaccurate' COA opinion?


Brighton attorney Karen A. Carver, who represents the mother and was co-counsel in the case with attorney Neal D.
Nielsen, said she is pleased with the ruling.
"Our client has already picked up her son," Carver said, "The Court of Appeals made it clear this decision will stand
and the father will have to file a motion lf he wants to change custody."
Carver said the trial judge should not have given the referee the authority

orders.

Yhe stamp should have never been utilized to change custody,"

to issue lmmediately effective custody

she said.

But Brighton private practitioner Christine Marie Heckler, who represents the father, said the criticisms of the referee
and the trial judge "are verifiably untrue."
Heckler noted the appeals court said that, under MCR 3.215(GX1), "A trial court has the power to, by an
administrative order or by an order in the case, provide that the referee's recommendation will take effect on an
interim basis pending a judicial hearing."
Heckler said this rule does not apply here because the order issued by the referee under the judge's signature was a
permanent order.
She also pointed out the Court of Appeals said the judge "added the

r ,-i:1

word'interim'to the order" that was entered

9/25/2A15 3:56 PII

Livirrgston'Counly hearing referee 'grossly' mishandled custody case

,..

http://r:iilawyersweekly,com/nervs/2O151A9D5/livingston-county-hear..,

on March 4,2015, But according to Heckler, this order was "very clearly an 'interim'order from the onset" and "the
word 'interim'was not later added by the judge."

in addition, "the order was personally signed by the judge, not the referee," Heckler said.
"Fudhermorer these parties had been before thisjudge prior to the March 4, 2015 order, so to state that he'knew
nothing about the case' is factually inaccurate and unfair," she said.

"I am troubled that the Court of Appeals could

make such an obvious error, especially when impeaching the character of a well-respected

judge."

A motion has been filed in the trial court, as instructed by the Cout ofAppeals, Heckler said. In addition, she said a
motion for reconsideration or to correct the record may also be filed with the appeals court.
When contacted for this story, Livingston County Frlend of the Court Melissa A. Scharrer said that, pursuant to
ethics rules, the trial judge and the referee could not comrnent on the decision. "The matter of correcting the factual
inaccuracies contained within the Court of Appeals opinion has been referred to civil counsel," Scharrer said.

Due process violation


Shapiro said the mother's due-process rights were violated in several ways,
The first violation, he said, happened when a change of custody was considered at the parenting-time hearlng,
although no motion was pending. He noted the father's custody motion had already been denied and was not
appealed, and a new motion had not been filed. He also pointed out there was no emergency that superseded the
fair notice requirements.
The second violation, according to Shapiro, occurred when the father's aftorney conducted a direct examination of

the family therapist.The testimony, he said, was basically a recltation of the father's allegations about the mother
taking prescriptions medications and not being able to wake up and take the child to school.

It was improper for the referee to tell the mother's attorney there was insumcient time to cross-examine the
therapist, Shapiro said. The referee did not give the mother time to call her own witnesses and did not continue the
hearing on another day, he noted.

In addition, it was inappropriate for the referee io require that, if the motherb attorney wanted to cross-examine
the father's witness, the mother had to pay the witness at the professional rate for the time spent on crossexamination.
"The referee's actions denied mother an opportunity to be heard on a motion to change custody that had not even
been filed and noticed for hearing," Shaplro stated.

Procedural mistakes
The referee also did not determine whether there was proper cause for a re-evaluation of custody, Shapiro said.
Moreover, before entering the custody order, the referee did not make a custodial environment determination and
did not reference the best-interest

factort Shapiro

said.

The referee "appears to have realized her error after the parties and their attorneys had left the courtroom and later
that day, without the presence of parties or counsel, stated her best-interest findlngs from the bench," the judge
noted.
According to Shapiro, the referee said she did not follow the requirements because she changed parenting time
instead ofcustody. However, this explanation "is directly contradicted by the language of the order, which expressly
provided that father would be the 'primary custodian of the child,"' the judge noted.
Also, instead of issuing a recommendation and proposed order, the referee stamped the judge's name on the
custody order, giving

it immediate effect, Shapiro

said. This deprived the mother of the opportunity to object to the

referee! recommendation before it became an enforceable order, he noted.


Here, the referee "had no authority to issue an immediately effective order changing custody," Shapiro said, "And
ttre judge cannot give carte blanche permission for the referee to sign his name without the judge ever seeing the

order or knowing anything about the case."

In conclusion, Shapiro vacated the custody order, "If the father moves for a change of custody, the trial judge, not

l nf?

912512015

3:56 PN

[,ivingston Couuty hearing referec 'grossly' rnishandled custody case

...

http:/imi lawyersweekly.cominewsl20

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the referee, shall handle matters on an expedited basis."

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9125/2015 3:56 I'Ir

Exhibit I

Court County referee ogrossly' mishandled custody

case

http ://www. livingstondaily.com/story/news/locaVcommunity/livingsto..

Court: County referee 'grossly' mishandled custody case


r

LisrRoo:e,Church,LivlngltotrDoily 9:50a.n, ED'|'Seplenbet29,20l5

A Michigan Court of Appeals ruling says a Livingston County allorney referee violated a mother's due-procss
rights in a custody hearing and committed numerous legal errors.

.
,

ln its opinion, lhe court found thal Friend of the Court referee Lori Marran "grossly' mishandled lhe custody
case. As a resull, the court vacaled Marran's order giving physical custody of lhe couple's child to the father.
'I
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;

-h+..

i E'#i

"The manner in which the change of custody was ordered was grossly improper," lhe court added. "The order is
vacated and the child shall be relurned to the primary physical custody of the mother."

Atlomey Christine M. Heckler, who represents the father, said the appeals couri "made obvious enors" in its
ruling and as a result unfaidy impeached "the character of a well-respected judge." ln particular, she said, the
"most serious criticisms raised in the decision ... are veriliably untrue."

(Pholo: Submitted file phato)

Heckler said the appeals courl noted that Judge David Reader added word "inlerim" lo an ordor entered on
March 4. However, she said that is untrue because lhe March 4 order "very clearly" indicated it was an "interim" order and was not added later as the
appeals court noted.
She also notod lhal thejudge personally signed the order, not the referee.

"l am troubled lhat the COA could make such an obvious error, especially when impeaching the character of a well-respecled Judge," Heckler said
Tuesday.

"Furthermore, these parties had been before lhis judge prior to the March 4, 201 5, order, so lo stale lhal he 'knew nothing about the case' is factually
inaccurate and unfair," Heckler added.
The appeals courl found the referee failed to find the father had proper cause for his request to change custody and Manan failed io give the mother time
to appeal her decision by rubber-stamping Reader's name on the court order, which put lhe custody change inio immediate effect.
The appeals court also found that the practice of allowing a referee to stamp the judge's name on an order is improper because lhe referee "had no
aulhority lo issue an immediately etfective order changing custody, and the judge cannot give carte blanche permission" for the referee to sign the judge's
name without ever seeing the order or being knowledgeable about lhe case.
The appeals court noted that the judge did later review the case and recognized that a full hearing needed to occur. However, the court said, the judge
did not vacale Marran's improper order, but rather ordered that a hearing "be continued." Despite that order, a hearing was not completed.
According to court documenls, a court order was entered Nov. 4, 2010, granting lhe mother sole legal and physical custody of the couple's child. ln
December that year, the father sought lo have it changed to joint legal and physical custody, but the motion was dismissed when ihe pair came to an
agreement in 201'1 thal granted physical custody to the mother but joint legal custody to both parents.
ln April 2014, the falher again filed a motion to change custody when his 5-year-old child was accidentally locked out of lhe mother's home while she was
sleeping. He also alleged the child's mother had a substance abuse problem, but Child Prolective Services was unable to substantiate lhat claim and a
CPS social worker later testified that the molher's home was safe and lhe lock-out incident was accidental.
\/vhen lhe pa(ies convened in March for a "parenting tlme hearing," Manan entered an order transfening primary custody to lhe father. However, the

appeals courl vacated {hat order as a "result of numerous legal enors."


The first enors, lhe courl noted, violated the mother's due-process rights. Specifically, the court found that Maran granted the change without proper
motion since lhe father's initial motion had been denied and not appealed.
The appeals court went on to say Marran took testimony from the family's therapist, who repeated the father's allegations, but the referee failed to allow

lhe mother's attomey to cross-examine the therapist and did not allow the mother to present any witnesses.
'The referee made several subslantive errors in the course of making her ruling, including what appears to be a complete disregard of the subslanlive law
governing a court's decision when considering a change of custody," the appeals court wrote in its decision released thls month.

of

9n91201510:10 AIt

Court: County referee 'grossly' mishandled custody case

http://www.livingstondaily.com/story/news/local/communityllivingsto..

Repodo/s no!e; Ihis slory ias been updated to add comments from tha falhef s attorney, who was not available at the initial time af writing.
Contact Livingstan Daily iustice repoder Lisa Roose-Church at 517-552-2846 or lrchurch@gannoft.com. Follow her on Twitter @LisaRoosaChurch.
Read or Share lhis story: http:/lldpaa.com/lFxhmMl

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