Heather Ann Kimball v. Timothy Roland Pearson Jr ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
HEATHER ANN KIMBALL, formerly known as UNPUBLISHED
HEATHER ANN PEARSON, March 29, 2018
Plaintiff-Appellee,
v No. 335639
Macomb Circuit Court
Family Division
TIMOTHY ROLAND PEARSON, JR., LC No. 2010-002626-DM
Defendant-Appellant.
AFTER REMAND
Before: GLEICHER, P.J., and M. J. KELLY and SHAPIRO, JJ.
PER CURIAM.
The judgment of divorce in this case was entered on April 11, 2011. It provided for joint
legal custody, primary physical custody to plaintiff, and parenting time for defendant every other
weekend from the end of school Friday through start of school on Monday, and one weekday
evening each week. On October 3, 2011, plaintiff filed a motion requesting permission to move
from Macomb County to Gaylord. Defendant opposed the motion. The referee recommended
denial of the request, and plaintiff requested a de novo hearing before the judge. Before the
hearing, the parties reached a resolution. Defendant withdrew his opposition to the move to
Gaylord, gave up his weekday parenting time, and agreed to transfer the children back to
plaintiff at 6 p.m. Sunday evenings rather than taking them to school on Monday. In return,
plaintiff agreed that defendant would have parenting time for the entire summer except for one
week in July and the week before school resumed.
After the move, communication between the parties degenerated and joint decision
making became difficult, all of which affected the children. In July 2016, defendant filed a
motion to change custody and to change the children’s domicile to his home. The referee
recommended that the motion be denied as there was no substantial change or good cause to
change custody. At a de novo hearing in August 2016, the trial court denied defendant’s motion
concluding that the Vodvarka1 threshold had not been met. The court’s decision on the threshold
1
Vodvarka v Grasmeyer, 259 Mich. App. 499; 675 NW2d 847 (2003).
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was made without an evidentiary hearing. This is permitted by Vodvarka, 259 Mich. App. at 512,
but only where “there are [no] contested factual issues that must be resolved in order for the
court to make an informed decision on the motion.”
Defendant moved for reconsideration. He attached to his motion, a letter from the
children’s therapist, Josette Lucci, in which she reported that the children had described incidents
of physical and emotional abuse by their step-father at plaintiff’s home. The trial court denied
the motion for reconsideration, and defendant appealed.
We issued an unpublished opinion on July 25, 2017, holding that the trial court did not
err in its initial denial of the motion to change custody, but that it did err in denying the motion
for reconsideration without further factual development.2 We found that the allegations provided
in the therapist’s letter were highly concerning, particularly as they came from a professional
treating the children. 3 Accordingly, we remanded the case “for an evidentiary hearing to
determine the extent to which the allegations in it were true, and, if so, what action needed to be
taken for the best interests of the children.”4 We retained jurisdiction.5
On remand, the trial court conducted an extensive evidentiary hearing after which it
concluded that there was good cause to change custody based on the parent’s apparent inability
to work together. See Wright v Wright, 279 Mich. App. 291, 299-300; 761 NW2d 443 (2008)
(holding that joint custody was not an option where the parties “would not be able to cooperate
and generally agree concerning important decisions affecting the welfare of the child.”).
However, rather than granting custody to defendant, who brought the motion, the court granted
sole legal custody to plaintiff based upon its review of the statutory best-interest factors. MCL
722.23.
Defendant appeals from that order arguing, inter alia, that the trial court erred by not
permitting Lucci to recount the statements of the children that led her to report concerns of
abuse. We agree. The trial court ruled that this evidence was inadmissible because it was
hearsay and did not fall within the MRE 803(4)6 exception for statements made for purposes of
medical treatment because Lucci was a social worker and not a doctor. This conclusion was
erroneous. “MRE 803(4) is not by its terms limited solely to statements made for purposes of
2
Kimball v Pearson Jr., unpublished per curiam opinion of the Court of Appeals, issued July 25,
2017 (Docket No. 335639), p 1.
3
Id. at 3-4.
4
Kimball, unpub op at 5. We are typically very reluctant to find error in a trial court’s denial of
a motion for reconsideration, especially based on assertions of new evidence.
5
Id.
6
MRE 803(4) provides as follows:
Statements made for purposes of medical diagnosis or treatment
describing medical history, or past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external
source thereof insofar as reasonably pertinent to diagnosis or
treatment.
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medical treatment by physicians and we decline to read the rule so narrowly.” Galli v Reutter,
148 Mich. App. 313, 318; 384 NW2d 43 (1985); See also In re Freiburger, 153 Mich. App. 251;
395 NW2d 300 (1986) (social worker) (abrogated in part by People v LaLone, 432 Mich. 103,
437 NW2d 611 (1989); People v Mahone, 294 Mich. App. 208; 816 NW2d 436 (2011); People
v McElhaney, 215 Mich. App. 269, 279; 545 NW2d 2d 18 (1996) (physician’s assistant); People v
Skinner, 153 Mich. App. 815; 396 NW2d 548 (1986) (psychologist); United States v Kappell, 418
F3d 550 (CA 6, 2005) (social worker); People v Zysk, 149 Mich. App. 452; 386 NW2d 213
(1986) (nurse).
The erroneous exclusion of the children’s statements to Lucci was significant. Given that
Lucci was not permitted to describe the grounds for the statements in the letter to the court, her
concerns about abuse appeared to have had little, if any, basis. Moreover, it likely affected the
trial court’s conclusion that Lucci’s entire testimony was not credible, a broad conclusion that
appears to have been a significant factor in the court’s best interests analysis. Finally, the
erroneous ruling prevented the establishment of an adequate record concerning the reason for our
remand.7
In light of this error, we again remand. On remand, the trial court shall resume the
evidentiary hearing for the sole purpose of hearing full testimony from Lucci during which she
may describe the statements and behaviors of the children that led her to express concern about
abuse at the mother’s home and offer her opinions about their significance. After considering
that testimony, the court shall again rule on the motion to change custody.
We also agree with defendant that the trial court erred in substantially reducing his
parenting time. Parenting time was not a subject of the hearing and the trial court addressed it
only briefly at the end of its opinion from the bench. We conclude that the change violates the
statutory requirement that “parenting time shall be granted to a parent in a frequency, duration,
and type reasonably calculated to promote a strong relationship between the child and the parent
granted parenting time.” MCL 722.27a(1). In this regard, we note that defendant’s substantial
summer parenting time had been stipulated to by plaintiff in exchange for agreeing to allow her
to move the children over 150 miles from the family home, an action which appears to have
been, at least in part, the genesis of the parties’ ongoing custody litigation. Further, while having
the children return to their mother’s home earlier on Sunday in order to give the children time to
get ready for school on Mondays is reasonable, the loss of time to the father should be made up
by increased parenting time at less disruptive times.
Remanded for further proceedings. The October 5, 2017 custody order shall remain in
effect until the trial court’s decision on remand. We retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
7
We also note that during the balance of the hearing, the trial court allowed several witnesses
presented by plaintiff to recount hearsay statements of the children.
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Court of Appeals, State of Michigan
ORDER
Elizabeth L. Gleicher
Heather Ann Kimball v Timothy Roland Pearson, Jr Presiding Judge
Docket No. 335639 Michael J. Kelly
LC No. 2010-002626-DM Douglas B. Shapiro
Judges
Pursuant to the opinion issued concurrently with this order, the Court REMANDS this
matter to the Macomb Circuit Court to resume the evidentiary hearing and reopen proofs for the sole
purpose of hearing the full testimony of the child’s therapist, Josette Lucci, during which Lucci may
recount the statements and behaviors of the parties’ children that led her to express concern about abuse
in the mother’s home, as well as offer her opinions about the significance of the statements and
behaviors. This Court retains jurisdiction in this cause.
Upon the expiration of the 56-day period in which to file an application for leave to
appeal in the Supreme Court, MCR 7.305(C)(2), the trial court shall reconvene the evidentiary hearing
and take the testimony of Lucci. Those proceedings shall be given priority on remand until they are
concluded. The trial court shall reconsider and rule on the motion to change custody within 21 days of
the close of the evidentiary hearing. The trial court’s ruling shall also provide for reasonable parenting
time for the noncustodial parent consistent with the opinion of this Court. Within seven days after entry,
appellant shall file with this Court a copy of the order entered on remand. The transcript of all
proceedings on remand shall be prepared and filed within 21 days of the completion of the proceedings.
/s/ Elizabeth L. Gleicher
March 29, 2018