Thomas J O'Brien Jr v. Ann Marie D'Annunzio ( 2020 )

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
THOMAS J. O’BRIEN, JR., UNPUBLISHED
February 27, 2020
Plaintiff-Appellee,
v No. 347830
Oakland Circuit Court
ANN MARIE D’ANNUNZIO, Family Division
LC No. 2004-693882-DC
Defendant-Appellant.
Before: MURRAY, C.J., and SAWYER and GLEICHER, JJ.
MURRAY, C.J. (concurring).
I concur in the majority opinion’s analysis and conclusion to affirm the trial court’s
February 19, 2019 order regarding custody and parenting time. I write separately to point out
several ways in which the dissenting opinion misses the mark.
I. THE DISSENT’S THEORY
The dissent’s main theory is that defendant could not (and did not) get a fair decision from
the trial court because the trial court entered an ex parte order changing custody and parenting time
on November 6, 2017. And, the theory goes, had four witnesses (two police officers and two
physicians) testified on November 6, 2017, plaintiff’s allegations would have been proven false,
and no changes to the prior orders would have occurred. Though we all agree that the trial court
erred in changing custody and parenting time without an actual hearing (a fact the trial court
implicitly recognized by scheduling a hearing the very next week), the dissent’s underlying
assumption is simply that–an assumption as to how the trial court would have ruled had a hearing
been held–and the assumption as to the outcome had a hearing been held is based upon the dissent’s
own view of the evidence, gleaned from the cold record.
Initially, it is important to point out that when plaintiff came to court on November 6, 2017,
the trial court was already aware that the custodial situation between the parties had again turned
for the worse. The record shows that since August 2017, both parties had filed emergency motions
regarding custody and parenting time, both motions were denied on an emergency basis, but as a
result of the motions, two orders were entered: one for a custody and parenting time investigation,
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and another for interim parenting time. Thus, what was presented by plaintiff to the court on
November 6, 2017, was a continuation of what had been occurring for months.
Additionally, the dissent asserts that if two police officers and two physicians would have
testified on November 6, 2017, then the trial court would have never entered the ex parte order.
If, however, a hearing had been held that day, who is to say that only those four witnesses would
have testified? If we are going to speculate about what could have occurred had a hearing been
held, it seems safe to assume that the parties and the children would have also participated in the
hearing. And, if they did, it is also safe to assume that the trial court would have made the same
credibility findings and conclusions that it did in its final opinion rendered after nine days of
hearings. In other words, it likely would have found plaintiff credible, and defendant to have
serious behavioral and emotional issues that seriously affect her ability to parent the teenagers.
Thus, if we are going to speculate as to what would have happened on November 6, 2017, we
should at least guide it by looking to the complete evidence presented during the case.
Consequently, the dissent’s premise is built upon speculation and assumptions (who would
have testified, how the trial court would have ruled, etc.) and, as shown below, to reverse the
ultimate order would necessitate casting aside well-established principles and recent caselaw that
supports the trial court’s decision.
II. THE TRIAL COURT’S OPINION
It is not often that our Court overturns a trial court’s custody decision, let alone a decision
explained in a thorough 55-page opinion, and which was issued after nine hearing days, where 15
witnesses and numerous exhibits were submitted and analyzed by the court. There are a couple of
overarching reasons why custody decisions, and especially thorough ones like this, are rarely
overturned. First, custody decisions are one of the few decisions that remain subject to the most
onerous abuse of discretion standard existing in Michigan: the appellant must show that the trial
court’s ultimate decision “is so palpably and grossly violative of fact and logic that it evidences a
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Yachcik v Yachcik,
319 Mich. App. 24, 31; 900 NW2d 113 (2017) (quotation marks and citation omitted). Custody
decisions like this one therefore remain subject to “the utmost level of deference.” Berger v
Berger, 277 Mich. App. 700, 706; 747 NW2d 336 (2008). Second, Michigan courts have
historically and correctly concluded that it is the trial court, and not the appellate court, that is most
familiar with the family, the family circumstances, and has heard first-hand the testimony coming
from family members and other witnesses familiar with the family. Brandt v Brandt, 250 Mich
App 68, 71-72; 645 NW2d 327 (2002) (recognizing that “[t]he ‘one family, one judge’ approach
allows the judge to be intimately familiar with all the proceedings involving the parties.”).
Through regular motion hearings, conferences, and evidentiary hearings, trial courts become
“familiar” with a case and those involved. Id. Here, the trial court noted at the start of its opinion
that these parents and children had been before the court on many different occasions, and almost
always for custody and parenting time disputes.
And that is also why, no matter what type of case is involved, our Courts have long
recognized the ability of trial courts to pick up on the many nuances of witness testimony, which
places trial courts in the optimal position to not only resolve credibility issues, but to determine
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what weight to give testimony. What the Court stated in Hartka v Hartka, 346 Mich. 453, 455; 78
NW2d 133 (1956), is applicable here:
This matter being an appeal from a decree of divorce is, of course, heard
here on the record de novo; but the Court generally gives great weight to the
findings of fact of the trial judge.
The trial court is our arena for the test of truth. There the contesting parties
and their witnesses appear face to face in flesh and blood with weight and size and
demeanor under the eye of the trial judge. He sees the averted glance, marks the
hesitation, detects the note of hysteria in the voice of a witness whose words may
be calculated to deceive. The cold words on a printed page show none of these
essentials to the search for fact.
See, also, Kessinger v Kessinger, 360 Mich. 528, 532; 104 NW2d 192 (1960); Vollrath v Vollrath,
163 Mich. 301, 303; 128 N.W. 190 (1910).1
That is not to say that we, as an appellate court, abdicate our appellate review when
reviewing these decisions. Our appellate duty is, however, fully and properly exercised when
enforcing the “utmost level” of deferential review to the challenged decision. And, just as
importantly, we do abdicate our proper appellate role when we take on the fact-finding role,
picking and choosing what evidence is most compelling or persuasive, in deciding for ourselves
what implications and inferences can be made from the evidence, and what evidence the trial court
should have found persuasive. Acting in that manner raises serious concerns. See, e.g., United
States v Raddatz, 447 U.S. 667, 681 n 7; 100 S. Ct. 2406; 65 L. Ed. 2d 424 (1980) (“[I]t is unlikely
that a district judge would reject a magistrate’s proposed findings on credibility when those
findings are dispositive and substitute the judge’s own appraisal; to do so without seeing and
hearing the witness or witnesses whose credibility is in question could well give rise to serious
questions. . . .”).
The dissenting opinion is well-written and thoughtful. However, the opinion goes well
beyond the highly deferential standard of review by engaging in a microscopic and one-sided
review of the evidence and procedural background that led to the ultimate decision. Indeed, if one
were to read the dissent in isolation, one would conclude that the trial court had no regard for
defendant, and intentionally disregarded all credible evidence in concluding that defendant was
not entitled to custody or, at the time, parenting time. But, as the majority opinion makes clear,
that is far from the case. Instead, as the majority opinion acknowledges, despite several legal
errors that occurred during the process, that the trial court ultimately issued an opinion and order
1
This law alone essentially precludes a reversal of this decision. It is impossible for an appellate
court to disregard a trial court’s finding that one of the party’s testimony “vacillated between
laughing, crying, tense, and calm seemingly independent of anything occurring in the courtroom,
the question posed to her, or anything about the particular incident about which she testified.”
None of these descriptions of a witness’s mannerisms are evident from a cold transcript.
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that was extraordinarily thorough, addressed all issues presented by the parties (as well as some of
the concerns raised by the dissent), and adhered to the controlling child custody factors. In the
end, the dissenting opinion merely represents a different opinion as to what evidence was best to
rely upon in making this custody decision.2 But a mere difference of opinion regarding the
evidence is not a basis for reversal, even under a less deferential standard of review. People v
Cress, 468 Mich. 678, 690-691; 664 NW2d 174 (2003).
According to the dissent, the trial court was tainted against defendant as a result of one ex
parte hearing, disregarded facts supporting defendant’s position, misrepresented evidence to make
it look more harmful to defendant, had no interest in helping rebuild the relationship between
defendant and the children, and allowed teenagers to dictate the situation. A reading of the trial
court’s opinion proves otherwise. For example, the dissent correctly emphasizes language within
MCL 722.27a(1) regarding a trial court’s obligation to grant parenting time in a frequency,
duration, and type reasonably calculated to “promote a strong relationship between the child and
the parent granted parenting time.” This mandate is familiar to anyone who practices domestic-
relations law in this state, and the trial court was quite aware of the statutory duty, as it specifically
quoted MCL 722.27a(1) and the need to promote parenting time.
The dissent uses this law as a springboard to argue that the trial court abdicated its duty to
help rebuild the relationships through parenting time. The trial court did no such thing. Instead,
it just came to a different conclusion than does the dissent. In addressing parenting time, the trial
court recognized that, in light of its findings regarding defendant’s inability to control her negative
feelings about plaintiff, her inability to properly communicate and deal with her children, and to
otherwise control her temper, granting parenting time would “further ‘endanger the child’s
physical, mental, or emotional health.’ ” MCL 722.27a(3). The court in fact quoted a recent
decision of this Court, Luna v Regnier, 326 Mich. App. 173, 180-181; 930 NW2d 410 (2018), which
recognized that forcing parenting time between children and a parent may at times cause emotional
trauma, and further drive a wedge between parent and child:
In regard to ZR, our review indicates that forced parenting time, especially
in light of ZR’s strongly expressed preference that he be allowed to consider a
relationship with defendant in the future at his own discretion, was likely to cause
emotional trauma and to drive a wedge further between mother and child, not foster
a strong relationship. See MCL 722.27a(1).
In Luna, id. at 181, the parent that was restricted from engaging in parenting time had been
restricted for several years, unlike the situation here where defendant was deprived of parenting
time (except for sporadic phone calls) for just over a year before the decision was issued.
2
As noted, there were 15 witnesses. The dissent addresses the testimony of only six of those, and
does not address the credibility findings made by the trial court about the parties, i.e., the parents
of the children. Thus, even if the dissent is correct about what more accurate testimony could have
been presented in November 2017, the apparently untainted evidence of nine other witnesses
(including all four family members) would still support the trial court’s decision.
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Moreover, because the trial court recognized the significance of its ruling, it permitted, consistent
with Luna, id. at 183, “periodic hearings to determine whether reinstituting parenting time would
be in the children’s best interests.” There is no question that the trial court fulfilled its
responsibility under MCL 727.27a(1) and (3), even if the result was no current parenting time for
defendant.3
Luna also resolves the dissent’s sua sponte conclusion that reunification therapy is
necessary to help restore a relationship between defendant and her children. For one, it is certainly
not our role to make recommendations or issue orders regarding what type of therapy should be
utilized for a particular family. Second, the Luna Court specifically addressed a trial court’s
decision to not order reunification therapy, and to instead opt for periodic hearings on parenting
time. Id. Not surprisingly, the Luna Court concluded which option to take was within the trial
court’s discretion:
Finally, defendant argues that the trial court’s order suspending her
parenting time without ordering reunification therapy constituted a de facto
termination of her parental rights. While we do not believe that the trial court
abused its discretion by suspending defendant’s parenting time and declining to
order reunification therapy, we do believe that it is necessary to remand this case
and direct the trial court to conduct periodic hearings to determine whether the
children wish to reinitiate contact with defendant and whether resumption of
parenting time would be in their best interests. [Id.]
The dissenting opinion also repeatedly chastises the trial court (and plaintiff) for
purportedly giving too much power to the children as to whether parenting time should occur. The
Luna Court, however, concluded that the children’s wishes regarding reinitiating contact with a
parent were a highly relevant consideration in whether to resume parenting time. Id. Again, it is
the trial court’s decision to determine the weight to be given the children’s preference because the
trial court, not us, has had the opportunity over an extended period of time to get a feel for the
family dynamics at issue. Brandt, 250 Mich. App. at 74. Both of these children were also 15, and
quite possibly (only the trial court would know for sure), articulated mature answers to the long-
lasting and difficult family dynamics.
Another concern is that the dissenting opinion ignores the trial court’s long familiarity with
the case. Although this judge has not handled the case from the outset, it having been filed in
2004, the trial court did familiarize itself with the history of this case that dates back to 2005. As
the trial court recounts in its opinion, there have been numerous orders and hearings involving
3
The dissent’s citation to In re Kellogg, __ Mich App __; __ NW2d __ (2020) (Docket No.
349930), is inapt. That case dealt with the law governing the termination of parental rights, and
this case does not. Additionally, we must presume that the trial court will be able to grant
defendant parenting time if evidence is brought forth warranting the change. Trial courts
addressing custody and parenting time issues are required to acknowledge that people and
circumstances can change, and must consider that potential until jurisdiction over the children is
lost.
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these parents and these children in 2005, 2007, 2008, and 2009, and then those that began in 2017.
The trial court was aware that, in the first few years after initiation of this case, there were repeated
orders regarding the need for a parenting time coordinator, and the recommendations made
regarding custody and parenting time.
Finally, the dissenting opinion has one theory of the case, while the trial court had another
theory of the case. Both theories have a basis in the evidence, but as set forth in the initial part of
this opinion, it is not our duty as appellate judges to decide which facts are more persuasive or
worthy of more weight. It is enough to say, as the majority does, that evidence supported the trial
court’s findings.
Nevertheless, several factual points need to be made. First, the record does not support the
dissenting opinion’s conclusion that the trial court simply “terminated” defendant’s rights without
any actual evidentiary support. To the contrary, the trial court recognized (among many other
things) that since at least 2008, defendant has had great difficulty controlling her emotions and her
hatred for plaintiff, and exhibited these feelings through poor behavior and antics in front of the
children. And, she continued in her ways even when she knew it was causing significant problems
with her relationships. The court cited to a 2008 ADEPT report that outlined defendant’s numerous
parenting difficulties, attitude problems, and disruptions that had still not been rectified by 2018,
despite many years of coparenting. Importantly, the concerns the trial court had with defendant
were not attributable to the fact that she had personality disorders (Dr. J. Scott Allen, defendant’s
psychiatrist, testified that defendant has ADHD, major depression disorder and PTSD, and treats
her with a combination of psychotherapy, counseling, and medication), a fact the dissent cannot
seem to overcome.4 Instead, the court focused on defendant’s tortured relationship with her
children (which existed, according to the evidence and the court’s findings, well before November
6, 2017), and concluded that defendant’s behaviors and dealings with her children and plaintiff led
to the existing severed relationship. The record and the trial court’s finding are replete with
examples of how defendant would routinely interfere with the children’s lives in an abnormal and
unhealthy way.5
4
The dissent discredits plaintiff for opining that defendant has a “mental illness.” The dissent may
be correct, but the only relevant point is that the trial court specifically gave no weight to that
testimony, so what plaintiff said had nothing to do with the trial court’s decision.
5
For example, it is undisputed that on one occasion defendant and her attorney showed up at the
children’s school in the middle of the day, and attempted to extract them without any basis for
doing so. A school employee testified that despite many children of divorced parents attending
the school, he had never seen anything like what defendant did. Also, during a therapy session
with the children, defendant demanded that the therapist call defendant’s attorney on the speaker
phone because she was outraged with certain aspects of the therapy. Other evidence showed that
defendant had many other improper communications or interactions with the children. Although
it is certainly true, as the dissent states, that teenagers should not control a parenting situation, it is
equally true that a parent needs to understand the complications and special circumstances that
teenagers are experiencing. As the trial court found, for many years prior to these most recent
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Lastly, although the trial court did err in completely eliminating the parenting time and
custody of plaintiff without an evidentiary hearing on November 6, 2017, the trial court’s final
determination on the existence of a change in circumstances was based upon evidence that
predated the November 6, 2017 motion. And, with respect to the delay between November 15,
2017, and the first day of the evidentiary hearing on March 20, 2018, the parties agreed to adjourn
several scheduled hearing dates before March 20, 2018, because, to their credit, they were seeking
to resolve these disputes without court intervention. Indeed, at a January 17, 2018 motion hearing,
the court again recognized the importance of having a quick hearing, and set it to start two days
later, January 19, 2018. But it was adjourned. Thus, the trial court was not acting in any type of
dilatory manner in scheduling the evidentiary hearing, and in fact, repeatedly stated at the motion
hearing about the need to conduct the hearings in light of the order suspending defendant’s
parenting time.
For these reasons, and for those reasons set forth in the majority opinion, I conclude that
under the proper standards of review, the trial court’s decision must be affirmed.
/s/ Christopher M. Murray
hearings, and continuing up to and including these hearings, defendant exhibited an inability to
understand these relationships, and in fact, exacerbated them.
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