Crampton v. Crampton , 178 Mich. App. 362 ( 1989 )

178 Mich. App. 362 (1989) 443 N.W.2d 419

CRAMPTON
v.
CRAMPTON

Docket No. 110043.

Michigan Court of Appeals.

Decided May 17, 1989.

Terrance P. Sheehan, for plaintiff.

David G. Moore, for defendant.

Before: MacKENZIE, P.J., and HOOD and GRIBBS, JJ.

PER CURIAM.

Defendant appeals as of right from an order of the circuit court directing a change of physical custody of two minor children from defendant mother to plaintiff father. We reverse.

The dispositive issue here is the trial court's failure to provide the parties with a de novo hearing. It was not sufficient for the court to rely on the testimony and evidence from the referee's hearing and to limit the taking of further testimony as was done here. Truitt v Truitt, 172 Mich App 38, 43-43; 431 NW2d 454 (1988). This is clear legal error requiring reversal. Id., p 44; MCL 722.28; MSA 25.312(8).

Given this disposition, we need not address defendant's other issues concerning an earlier injunction and the sufficiency of the evidence. Also, consideration of whether the court appropriately enjoined defendant from moving to another county is now moot given the dissolution of that order. As a general rule, we do not review moot issues. Contesti v Attorney General, 164 Mich App 271, 278; 416 NW2d 410 (1987).

However, in our review of these issues, we were struck by the attitude of the court reflected in the record. The court was correct to be concerned regarding potential harm to the children because of the stepfather's drinking pattern. However, this appears to have been the controlling issue in the decision to change custody. As with the injunction, it appears that the court may, understandably, have taken a more drastic approach to issues which could have been resolved differently if the best interests of the children were being considered. Custody matters are always difficult for trial courts because they require difficult and Solomon-like decisions. We believe it is in the best interests of the children to obtain a full and fair hearing by a judge who is not burdened by the recollection, consciously or unconsciously, of earlier testimony at prior hearings.

In an effort to relieve the trial court of such burdens and in the best interest of the children, we direct that any future hearings on this matter be held before a different circuit judge.

Reversed.