Tarayea Smith v. Myking Smith ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TARAYEA SMITH, UNPUBLISHED
November 10, 2022
Plaintiff/Counterdefendant-Appellee,
v No. 358123
Saginaw Circuit Court
MYKING SMITH, Family Division
LC No. 20-042170-DM
Defendant/Counterplaintiff-Appellant.
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
PER CURIAM.
Defendant, Myking Smith, appeals as of right the judgment of divorce ending his marriage
to plaintiff, Tarayea Smith. For the reasons stated in this opinion, we affirm the judgment of
divorce in part, but vacate it in part and remand for proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant married on December 6, 2015. They had two children1 together
before they separated in July 2017. In September 2016, defendant committed numerous assaultive
criminal offenses. Later, he was convicted and sentenced to a minimum of 8 years and 10 months’
imprisonment. Defendant’s earliest release date is March 11, 2026, and his maximum release date
is May 11, 2039.
In May 2020, plaintiff, proceeding pro se, filed for divorce. Plaintiff requested the trial
court to award her sole legal and physical custody of the parties’ children, to make determinations
regarding child support, healthcare, and childcare expenses, and to grant any other equitable relief.
In response, defendant, who was represented by counsel, agreed that the trial court should grant a
judgment of divorce, but he requested the trial court to order joint custody of the children,2 to order
1
The children were born on May 13, 2015 and August 11, 2016.
2
Presumably defendant was referring to legal, not physical custody, given his incarceration. See
Merecki v Merecki, 336 Mich App 639, 647 n 3; 971 NW2d 659 (2021).
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child support consistent with this state’s guidelines, to equitably divide the parties’ assets and
debts, and to grant any other equitable relief. Later, defendant identified the issues for trial as
being custody, parenting time, support, property settlement, assets, and debts.
The trial court also entered an order that directed the parties to “participate in a [r]eferee
[c]onference regarding matters of child support, custody, parenting time, and conservation of
assets . . . .” The referee was to “make efforts to resolve the matters of child support, custody,
parenting time, conservation of assets or any other relief sought by either party’s pleadings.” If
the parties failed to “stipulate to an agreement, the [r]eferee . . . [was to] immediately make a
recommendation . . . regarding the unresolved issue of child support, custody, and parenting
time . . . .” The referee’s order was “to become an immediate interim order of the Court subject
to either party filing an objection within twenty-one (21) days of the Order and requesting a
hearing.”3 The parties were further to provide the referee with income information, including a
recent paycheck stub or other verification of income, and prior federal and state tax returns with
copies of W-2 forms.
The referee held a hearing on November 3, 2020,4 and submitted findings of fact to the
trial court. Due to defendant’s incarceration, the referee concluded that plaintiff would have sole
physical and legal custody of the children. Defendant would have visitation either by phone or
video on either Sunday afternoon or Monday evening for ten minutes per child. The referee did
not order any child support given defendant’s incarceration, but required defendant to notify the
Friend of the Court within thirty days of his release.
The trial court entered a temporary order on November 23, 2020, granting plaintiff sole
legal and physical custody of the two minor children, awarding defendant phone or video contact
with the children for 10 minutes per child, and providing no child support while defendant was
incarcerated. As to the conservation of the parties’ assets, the parties and their respective counsel
were to “place any agreements in their final judgment of divorce.” The trial court’s order was to
become final 21 days after it was served on the parties on December 4, 2020, unless a party
objected.
3
See MCL 552.507(4) (“The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon motion of the court.
The request of a party shall be made within 21 days after the recommendation of the referee is
made available to that party.”); MCR 3.215(E)(4) (“A party may obtain a judicial hearing on any
matter that has been the subject of a referee hearing and that resulted in a statement of findings
and a recommended order by filing a written objection and notice of hearing within 21 days after
the referee’s recommendation for an order is served on the attorneys for the parties, or the parties
if they are not represented by counsel. The objection must include a clear and concise statement
of the specific findings or application of law to which an objection is made. Objections regarding
the accuracy or completeness of the recommendation must state with specificity the inaccuracy or
omission.”).
4
Appellant has not provided the transcript from this hearing.
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On December 1, 2020, plaintiff filed an “[e]mergency [m]otion to [e]xpedite [h]earing”
requesting that all communications between defendant and the children cease. 5 The register of
actions indicates that a hearing on plaintiff’s motion was scheduled for January 2021, and that
defendant was not present at the hearing, even though his attorney was. There is no order6 or
corresponding transcript for that hearing in the record. The register of actions, however, reflects
that the trial court awarded defendant “video parenting time” at defendant’s expense and the call’s
duration was at plaintiff’s discretion. Plaintiff subsequently obtained counsel.
On April 13, 2021, on the date set for trial via remote access technology in light of the
continuing pandemic, plaintiff and her attorney appeared, but defendant was not present and his
attorney was late.7 Defense counsel asserted that he was prepared for trial, but explained that the
parties’ attorneys had discussed the case and he thought that “the vast majority of issues resolved
themselves due to the [defendant’s] incarceration.” Even so, there were “some lingering disputes
about telephone contact and visitation with the children,” i.e., defendant’s parenting time.
Plaintiff’s counsel confirmed defense counsel’s representations. She clarified that defendant had
telephone calls scheduled for a range of times and that the attorneys had discussed arranging them
for Sunday at a specific time so that plaintiff and the children could plan their activities. Moreover,
defendant sought visitation for the children with his family. Plaintiff opposed this due to
molestation allegations within defendant’s family and defendant’s current unavailability to
supervise such visitation. The trial court interjected that it was not inclined to order that type of
visitation. Plaintiff’s counsel added: “Everything else we believe, Your Honor, I believe we have
an agreement on.”
The trial court then inquired about defendant, specifically asking whether defense counsel
was willing to move forward without him. Defense counsel declined, stating “I don’t think that is
5
Whether plaintiff’s in propria persona motion was an objection to the November order that
followed the referee conference is unclear, especially without the transcript. That order was not
served upon plaintiff until after her motion was filed and plaintiff’s motion was not captioned as
an objection although it was apparently prepared two days after the November 23 order was
entered. Plaintiff later refiled her motion with a notice of hearing. If plaintiff’s motion was an
objection to defendant’s parenting time order, the court should have scheduled a de novo hearing.
See Butters v Butters, ___ Mich App ___, ___ NW2d ___ (2022) (Docket No. 359665), slip op at
3-5. If it was not, the referee’s order became a final order. See MCR 3.215(E)(1)(c).
6
The register of actions reflects that defense counsel was to prepare the order. At the April 2021
hearing when the trial court inquired about plaintiff’s motion, defense counsel responded: “I don’t
believe anything came from . . . [it].”
7
No orders were entered requesting “prisoner participation” in the court proceedings held in
January or April 2021. See MCR 2.004. The only order requesting “prisoner participation” in the
record concerned the November 2020 referee conference directing the Michigan Department of
Corrections to allow defendant to participate in the proceeding via telephone. During the
April 2021 hearing, the trial court observed that it did not know why defendant “wasn’t available
today or why you [defense counsel] didn’t take care of that ahead of time . . . .” Even so, lack of
compliance with MCR 2.004 is not an issue raised in this appeal.
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a good idea . . . .” Defense counsel opined that defendant would want to participate primarily
because the phone calls between defendant and the children had “been a train wreck.”
Regarding the parenting time issues, defense counsel volunteered
I don’t know if these issues [the parenting time disputes] merit the trial court’s time.
Because, as I indicated, most of the issues self[-]resolved because of the
[defendant’s] incarceration. Support, parenting time, [and] custody, you know - -
The trial court then observed that plaintiff was going to receive full legal and physical custody.
And defense counsel recognized the earlier order to that effect.
After confirming that no proofs regarding the statutory grounds for divorce had been
presented, the trial court proposed taking proofs “just in case you guys do work it out.” The trial
court indicated its inclination to limit defendant’s visitation to 7:00 to 8:00 p.m. on Sunday. As
defendant’s prison calls were limited to 15 minutes, the trial court opined that defendant could
divide his time between the children.
The trial court again asserted that it would take proofs to save the parties from having to
return. The court added that if the matter resolved, “fine”; if not, “we’ll have to set a new trial
date.”
The trial court then questioned plaintiff, who was under oath, and placed the requisite
statutory grounds for the divorce on the record. Again, the trial court stated it was giving the
parties “a couple of weeks to work out a [j]udgment.” If they could not, “we will have to reset
[this].” At the end of the hearing, the court reiterated:
I expect to see a [j]udgment within the next couple weeks, otherwise we will reset
this. And you need to let my clerk know if you need it reset.
Two weeks later, on April 27, 2021, plaintiff’s counsel e-mailed defense counsel a copy of
a proposed judgment of divorce without response. Pertinent to this appeal, the proposed judgment
of divorce awarded plaintiff sole legal and physical custody of the children, provided that neither
party was awarded support, and forever barred spousal support. After two days without a response,
plaintiff’s counsel e-mailed defense counsel again. This time, defense counsel acknowledged
receiving the proposed divorce judgment, but reported that he had not had time to review it.
On May 17 and 27, plaintiff’s counsel sent follow up e-mails to defense counsel without
response. Concerned over the court’s initial timeline, plaintiff’s counsel contacted the court clerk.
On June 5, 2021, the trial court set a show-cause hearing on July 21, 2021 regarding why the
judgment should not be entered.
On June 24, 2021, plaintiff’s counsel again e-mailed defense counsel to follow up in light
of the trial court’s show-cause order. Defense counsel failed to respond. Plaintiff’s counsel also
left defense counsel a voicemail regarding the show-cause order without response.
On July 19, 2021, plaintiff’s counsel sent defense counsel a final e-mail prior to the show-
cause hearing. Defense counsel’s secretary called back to report that defense counsel had an
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appointment scheduled with defendant the following day and would contact plaintiff’s counsel
thereafter.
The next day, which was the day before the scheduled show-cause hearing, plaintiff’s
attorney filed a written response detailing her efforts to obtain a response from defense counsel.
Defense counsel did not respond in writing to the trial court’s show-cause order.
At the July 21 show-cause hearing, plaintiff’s attorney informed the trial court that defense
counsel had not responded to plaintiff’s proposed divorce judgment until yesterday. At that point,
defense counsel reported that defendant was not in agreement with awarding plaintiff sole custody8
and that he wanted to reserve the issue of spousal support.9
Plaintiff’s counsel maintained that awarding custody to defendant was inappropriate due
to his incarceration, adding that upon defendant’s release, he could petition for custody.
Additionally, the trial court had earlier awarded plaintiff sole legal and physical custody and there
was no change in circumstances warranting modification. Finally, plaintiff’s attorney contended
that defendant gave up his right to put on proofs because he failed to appear on the trial date.10
Plaintiff’s counsel then asked the court to sign the judgment.
In response, defense counsel asserted that defendant had been moved to a “difficult
facility,” which made it arduous for counsel to communicate with him. As a consequence, defense
counsel did not have defendant’s authority to stipulate to the proposed divorce judgment. Defense
counsel again asserted that defendant objected to the proposed custody and spousal support
terms.11 Counsel frankly explained that securing defendant’s consent was more difficult given
plaintiff’s consistent violations of defendant’s court-ordered visitation.
The trial court inquired why defense counsel had not conveyed this information to
plaintiff’s counsel. Defense counsel offered that he had done so in April and in the e-mail stating
that he would not agree to the proposed judgment’s provisions awarding custody to plaintiff and
barring spousal support. The trial court then interjected that defense counsel had not done so until
the day before the scheduled show-cause hearing. Defense counsel agreed, explaining that “[t]hat
was the first time I [had] talked to [defendant] in probably a month . . . .”12 Defense counsel added
that he believed that on the trial date (April 13), the trial court had indicated that if the parties did
8
This was a change from defense counsel’s position at the April 13 hearing.
9
Again, this was a change from defense counsel’s representation at the April 13 hearing.
10
Plaintiff did not advance this argument during the April 13 hearing. Rather the trial court
repeatedly stated it would reset the trial date if the parties did not agree on a judgment.
11
See footnotes 8 and 9.
12
The trial was scheduled for April 13 and the show-cause was heard in July. Moreover, plaintiff’s
counsel repeatedly attempted to contact defense counsel from April 27 through July 20.
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not agree to entry of the divorce judgment, it “would reschedule a trial date.” Defense counsel
ended by stating:
So [plaintiff’s] counsel sent over this take it or leave it Judgment[13] consistently
that I have no authority to enter into and that [defendant] is refusing to enter into.
And if the Court wants to sign it, the Court can sign it. But, it can’t be as a consent
[judgment].
The trial court signed plaintiff’s proposed judgment of divorce, stating that the April trial
date came and went. This appeal followed.
II. ANALYSIS
Defendant argues that the trial court erred and abused its discretion when it failed to hold
a trial or make any findings of fact or law before entering the judgment of divorce. We agree in
part.
We begin by noting that defendant has not provided this Court with the entire transcript as
required by MCR 7.210(B)(1)(a). “The obligation to produce the transcripts applies regardless of
whether the transcript is directly relevant to the issues on appeal . . . [and t]his Court can refuse to
consider issues for which the appellant failed to produce the transcript.” Thompson v Thompson,
261 Mich App 353, 359 n 1; 683 NW2d 250 (2004). When an appellant fails to provide relevant
transcripts, this Court has alternatively held that “[t]he issue is considered abandoned on
appeal,” Taylor v Blue Cross & Blue Shield of Mich, 205 Mich App 644, 654; 517 NW2d 864(1994), or that “it constitutes a waiver of the issue,” Shinn v Mich Assigned Claims Facility, 314
Mich App 765, 768-769; 887 NW2d 635 (2016). In either event, “this Court will refuse to consider
issues for which the appellant failed to produce the transcript.” PT Today, Inc v Comm’r of Office
of Fin & Ins Servs, 270 Mich App 110, 151-152; 715 NW2d 398 (2006). “However, the Court
may consider an issue if the transcript [is] not relevant to the issue on appeal or if the issue on
appeal is simply one of law.” Kern v Kern-Koskela, 320 Mich App 212, 230; 905 NW2d 453(2017).
In this case, defendant failed to provide the November 3, 2020 transcript from the court-
ordered referee conference, addressing custody, parenting time, and child support. Defendant also
failed to provide the transcript from the January 4, 2021 hearing on plaintiff’s emergency motion
to expedite hearing, which sought to halt defendant’s parenting time. Because we are presented
with an issue that is a matter of law, however, we will proceed.
We next consider whether defense counsel harbored appellate error given his parting
remark to the trial court at the July hearing. Defense counsel told the trial court that if it was going
to sign the proposed judgment of divorce, it could do so long as it was not captioned a consent
judgment of divorce. See e.g., Loutts v Loutts, 298 Mich App 21, 36; 826 NW2d 152 (2012) (“It
13
The record reflects that plaintiff’s counsel sought either sign off or “any corrections” or “any
changes” or “any additions, deletions, or corrections [defendant] want[ed] made.”
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is unfair to harbor error and use it as an appellate parachute.”); Valentine v Valentine, 277 Mich
App 37, 40; 742 NW2d 627 (2007) (“On numerous occasions, this Court had denied a party the
right to raise an appellate challenge when the party harbored an error as an appellate parachute.”)
(quotation marks omitted). Given the parties’ attorneys’ representations on the April trial date that
they agreed on support, parenting time,14 and custody, the trial court was led to believe that those
matters were settled. See MCR 2.507(G) (“An agreement or consent with the parties or their
attorneys respecting the proceedings in an action is not binding unless it was made in open
court . . . .”). On the other hand, the trial court itself repeatedly recognized that the parties’ failure
to agree upon the divorce judgment necessitated resetting the trial date. It appears that the
proceedings became further muddled when the trial court entered the show-cause order after
plaintiff’s counsel contacted the court’s clerk.15 The show-cause order diverged from what the
court had verbally directed: if the parties did not agree to the terms of the divorce judgment, they
should have informed the clerk so that the trial date would be reset.
Neither attorney, however, is free from fault. As to defense counsel, he failed to timely
communicate with both opposing counsel and the court. Indeed, the record suggests that it is
questionable whether defendant was motivated by a true dispute over the issues of custody and
support, which defense counsel had all but conceded on the date set for trial,16 or whether he was
disgruntled over plaintiff’s alleged interference with defendant’s parenting time, which, in turn,
was limited by his incarceration. Nevertheless, the trial court had repeatedly verbalized its
intention to reschedule the trial if the parties did not agree on the judgment. At the show-cause
hearing, defense counsel voiced both his inability to sign the proposed judgment of divorce and
defendant’s opposition to custody and spousal support being barred.
A court is required to consider an award of joint custody upon a parent’s request and must
“state on the record the reasons for granting or denying” the request. MCL 722.26a. In rendering
its decision, the court must “determine whether joint custody is in the best interest of the child by
considering the” statutory best-interest factors. MCL 722.26a. On the other hand, a trial court’s
decision to award spousal support, bar support, or reserve support is discretionary. See
MCL 552.23 (if the parties’ estate and effects “are insufficient for the suitable support and
maintenance of either party . . . , the court may . . . award” spousal support); McCoy v McCoy, 317
Mich 478, 481; 27 NW2d 62 (1947); Torakis v Torakis, 194 Mich App 201, 202; 486 NW2d 10714
With the exception of issues pertaining to parenting time that defense counsel discussed on the
record given that parenting time was limited due to defendant’s incarceration.
15
If the parties had reached an agreement, plaintiff’s counsel could have filed a motion to settle
the judgment. See MCR 3.211(F)(1), which requires that the moving party, “[w]ithin 21 days
after . . . the settlement agreement is placed on the record . . . [to] submit a judgment, order, or a
motion to settle the judgment or order, unless the court has granted an extension.”).
16
We do not know what defendant’s position was at the earlier referee conference addressing
custody, parenting time, and support because defendant failed to provide the transcript from that
hearing.
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(1992). The “parties . . . are entitled to individual consideration based on the law and facts
applicable to their case . . . .” Myland v Myland, 290 Mich App 691, 697; 804 NW2d 124 (2010).
“In general, a trial court’s legal determinations are reviewed de novo, any underlying
factual findings are reviewed for clear error, and ultimate discretionary decisions are reviewed for
an abuse of that discretion.” Hein v Hein, 337 Mich App 109, 115; 972 NW2d 337 (2021). A trial
court abuses its discretion when it makes an error of law. Id. at 116. A finding is clearly erroneous
if this Court is “left with a definite and firm conviction that a mistake has been made.”
Cunningham v Cunningham, 289 Mich App 195, 200; 795 NW2d 826 (2010).
The court must “enter a judgment dissolving the bonds of matrimony if evidence is
presented in open court that there has been a breakdown in the marriage relationship to the extent
that the objects of matrimony have been destroyed and there remains no reasonable likelihood that
the marriage can be preserved.” MCL 552.6(3) “In a divorce case, the trial judge performs two
distinct functions. First, the court must find facts on the basis of the evidence presented, and then
the court must exercise its discretion in fashioning a disposition.” Beason v Beason, 435 Mich
791, 798; 460 NW2d 207 (1990). “In its fact-finding role, the trial court must hear the evidence
[and] choose which witnesses to credit when the evidence conflicts . . . .” Id. “[T]he trial court
must make findings of fact and dispositional rulings.” Reed v Reed, 265 Mich App 131, 150; 693
NW2d 825 (2005). Specifically, in an action tried without a jury, the trial court must “find the
facts specially, state separately its conclusions of law, and direct entry of the appropriate
judgment.” MCR 2.517(A)(1); see MCR 3.210(D) (“The court must make findings of fact as
provided in MCR 2.517 . . . .”). “Brief, definite, and pertinent findings and conclusions on the
contested matters are sufficient, without over elaboration of detail or particularization of facts.”
MCR 2.517(A)(2). “The court may state [its] findings and conclusions on the record or include
them in a written opinion.”
In this case, on the date set for trial, the trial court questioned plaintiff, who was under oath,
to establish the statutory basis for the parties’ divorce. The divorce judgment reads:
THIS CAUSE is before the court upon the filing of the complaint by Plaintiff.
Defendant filed an answer and counter complaint for divorce.[17] Proofs have been
presented in court, for which it appears that there has been a breakdown of the
marriage relationship to the extent that the objects of matrimony have been
destroyed and there remains no reasonable likelihood that the marriage can be
preserved. Testimony was taken on the date set for trial . . . . The court has subject
matter jurisdiction over this proceeding and personal jurisdiction over the parties.
IT IS ORDERED:
17
The register of actions does not reflect that defendant filed a countercomplaint for divorce;
instead, in his answer he requested that the court grant a judgment of divorce.
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DIVORCE
The marriage between . . . [the parties] is dissolved, and a divorce from the bonds
of matrimony between the parties is ordered and adjudged.
This was sufficient to satisfy the trial court’s obligations with respect to findings of fact and
conclusions of law in a written opinion as to the parties’ divorce.18 See MCR 2.517(A) and
MCR 3.210(D).
But there were no findings of fact or conclusions of law made at the hearings or prior to
entry of the judgment prepared by plaintiff relating to the specific issues addressed in the judgment
of divorce on the contested matters of custody19 and the barring of future spousal support.
Although the trial court was not required to overelaborate its findings in particularized detail, the
trial court was required to provide at least “[b]rief, definite, and pertinent findings and conclusions
on the contested matters” to support its decision to issue the judgment of divorce.
MCR 2.517(A)(2). Because the trial court failed to provide the bare minimum findings of fact and
conclusions of law, remand is necessary.
Affirmed in part regarding the parties’ divorce, but otherwise vacated and remanded for
further proceedings consistent with this opinion. We do not retain jurisdiction. Neither party
having prevailed in full, we decline to award costs pursuant to MCR 7.219(A).
/s/ Kirsten Frank Kelly
/s/ Anica Letica
/s/ Michelle M. Rick
18
We are mindful that plaintiff has a child from a later relationship.
19
See generally MCR 3.200 et seq., governing domestic relations actions. See also MCR 3.210,
governing hearings and trials. For example, MCR 3.210(C) requires the court to hold a hearing
when custody of a minor child is contested. Although custody was addressed during the referee
conference, as previously mentioned, defendant has not provided that transcript for our review and
this Court has held that a referee errs “in making a custody determination without considering the
best-interest factors,” and a trial court errs “in accepting the referee’s custody recommendation
without satisfying itself that the best-interest factors were considered.” Rivette v Rose-Molina,
278 Mich App 327, 333; 750 NW2d 603 (2008).
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