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

Order Michigan Supreme Court
Lansing, Michigan
June 11, 2021 Bridget M. McCormack,
Chief Justice
161335 Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
THOMAS J. O’BRIEN, JR., Elizabeth M. Welch,
Plaintiff-Appellee, Justices
v SC: 161335
COA: 347830
Oakland CC Family Division:
2004-693882-DC
ANN MARIE D’ANNUNZIO,
Defendant-Appellant.
_____________________________________/
On May 5, 2021, the Court heard oral argument on the application for leave to
appeal the February 27, 2020 judgment of the Court of Appeals. On order of the Court,
the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to
appeal, we VACATE the February 19, 2019 order of the Oakland Circuit Court and
REMAND this case to that court for further proceedings. We DIRECT the Oakland
Circuit Court to assign a different judge to preside over further proceedings in this case.
The trial court erred by modifying the children’s established custodial
environment in its November 16, 2017 temporary order without first conducting an
evidentiary hearing. That order suspended the appellant’s parenting time, precluded her
from initiating contact with the children, and continued granting the appellee full-time
parenting time. By doing so, the order had the effect of modifying the children’s
established custodial environment. Therefore, MCL 722.27(1)(c) applied,1 and the trial
court should have first conducted an evidentiary hearing. Grew v Knox, 265 Mich App
333, 336 (2005) (“An evidentiary hearing is mandated before custody can be modified,
even on a temporary basis.”). Despite this Court’s admonishment in Daly v Ward, 501
Mich 897, 898 (2017), that it is “critical . . . that trial courts fully comply with MCL
722.27(1)(c) before entering an order that alters a child’s established custodial
environment,” the trial court failed to do so. In Daly, we explained that full compliance
with MCL 722.27(1)(c) is necessary because “[i]n many instances, it is difficult—if not
altogether impossible—to effectively remedy [an error] on appeal, and to restore the
status quo ante, . . . without causing undue harm to the child.” Daly, 501 Mich at 898.
To be sure, it is impossible to effectively remedy the error in entering the November 16,
1
That provision reads, in relevant part: “The court shall not modify or amend its
previous judgments or orders or issue a new order so as to change the established
custodial environment of a child unless there is presented clear and convincing evidence
that it is in the best interest of the child.”
2
2017 order when 15 months passed before an order properly based on an evidentiary
hearing was issued. The trial court’s February 19, 2019 final opinion and order relied on
events that occurred in a custodial environment that was erroneously altered in November
2017. Therefore, we cannot conclude that the error was harmless.
On remand, the trial court shall conduct a hearing within 14 days of the date of
this order to determine how the case should proceed. We further direct the trial court to
expedite its consideration and resolution of this case.
We do not retain jurisdiction.
CLEMENT, J., (concurring).
I concur with the Court’s remand order. While MCL 722.27a(12) to (14) allow for
the issuance of ex parte orders concerning parenting time, the November 16, 2017 order
did not, practically speaking, affect only parenting time. Though it was couched in those
terms, the order changed the custodial environment by completely suspending appellant’s
parenting time and affording appellee full parenting time. Therefore, rather than falling
under the allowance for ex parte orders as provided in MCL 722.27a(12) to (14), the
November 16, 2017 order falls within the requirement in MCL 722.27(c)(1) that orders
modifying the established custodial environment be entered after an evidentiary hearing.
Nevertheless, the trial court ignored this procedural requirement.
It is true that an established custodial environment must be just that—
established—hence why an established custodial environment exists only “if over an
appreciable time the child naturally looks to the custodian in that environment for
guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c).
An “appreciable time” is, of course, not a very precise phrase, and I can imagine
borderline cases in which it is difficult to tell whether a custodial environment has been
in place for long enough to be established. But this case is no such borderline case. I am
certain that after 15 months, the children had an established custodial environment with
the only parent they saw.
Moreover, I am hesitant to fault appellant for trying to resolve the dispute with
appellee rather than immediately appeal the November 16, 2017 order. Even had she
appealed immediately and not requested any adjournments, if the evidentiary hearings
took the same amount of time as they did—almost a full year—the children’s established
custodial environment still would have been improperly modified by the temporary order
by the time a proper opinion and order was issued.
Setting aside any effect appellant’s actions might have had on the proceedings, it
is important that lower courts follow the correct procedure when modifying a child’s
established custodial environment. As the statutory scheme reflects, doing so is serious
3
business. This Court has explained that the statute exemplifies a preference for stability
in children’s lives: “In adopting [MCL 722.27(1)(c)], the Legislature intended to
minimize the prospect of unwarranted and disruptive change of custody orders and to
erect a barrier against removal of a child from an ‘established custodial environment,’
except in the most compelling cases.” Baker v Baker, 411 Mich 567, 576-577 (1981).
Therefore, we have warned trial courts how important it is to follow the requirements of
MCL 722.27(1)(c). See Daly v Ward, 501 Mich 897, 898 (2017). But here the trial court
entered a temporary order without an evidentiary hearing and then waited 15 months to
issue an order that complied with the statute. By that time, the temporary order had
changed the established custodial environment. Moreover, the trial court relied on events
that occurred in that new established custodial environment when issuing its February 19,
2019 opinion and order.
I believe the original error in entering the November 16, 2017 order without an
evidentiary hearing, and its effect on the February 19, 2019 order, justify vacating the
2019 order and remanding the case. While vacating the order will undo the custody
arrangement put in place by that order, the parties remain free to file new motions
regarding custody. I fully expect them to do so. I agree with Justice VIVIANO that during
the course of the remand, the trial court should not disregard the children’s current living
situation. See Fletcher v Fletcher, 447 Mich 871, 889 (1994) (holding that “on remand,
the court should consider up-to-date information, including the children’s current and
reasonable preferences, as well as the fact that the children have been living with the
plaintiff during the appeal and any other changes in circumstances arising since the trial
court’s original custody order”). I also share his concern about the trial court’s decision
to completely suspend appellant’s parenting time, and I join him in encouraging the trial
court to facilitate the children’s redevelopment of a relationship with appellant. I believe
the majority’s order lays the groundwork for these steps, so I concur in the vacatur and
remand.
I also concur in the majority’s decision to reassign the case to a different judge.
For the reasons stated in Judge GLEICHER’s dissent, I believe the original judge will have
a difficult time setting aside her previous opinions; and because the error in entering the
November 16, 2017 order had such longstanding effects, I think reassignment is
necessary to preserve the appearance of justice. In light of those concerns, I do not
believe reassignment will cause excessive waste. Bayati v Bayati, 264 Mich App 595,
603 (2004).
VIVIANO, J. (concurring in part and dissenting in part).
I agree with much of the Court’s order, so far as its reasoning can be discerned,
but I dissent from its decision to reassign this case to another judge on remand and I write
further to address its confusing and seemingly incomplete remedy of vacating the trial
court’s custody order. In fashioning this relief, the Court fails to give any real guidance
4
on the effect of its order and what the trial court should do next. I would follow our
precedent and remand for reevaluation while the status quo is maintained.
Plaintiff-father and defendant-mother shared custody of their two minor children
for years without issue, but in 2017, the relationship between the teenage children and
defendant began to break down. On November 6, 2017, after several instances in which
police officers were called to intervene in confrontations between defendant and the
children, plaintiff filed an ex parte motion to suspend defendant’s parenting time and to
grant him sole physical and legal custody of the children. The trial court granted that
motion and, after holding a hearing in which no evidence was presented, decided on
November 16, 2017, to continue the previous ex parte order as a temporary order. At the
time plaintiff filed his ex parte motion, plaintiff and defendant shared custody and
parenting time; after the court granted his motion, plaintiff alone had custody and
parenting time. The court’s decision changed the children’s established custodial
environment, i.e., the environment in which there is a person to whom the children
looked for “guidance, discipline, the necessities of life, and parental comfort.” MCL
722.27(1)(c). But the trial court did not complete the evidentiary hearing required by that
subsection until October 2018 and did not enter a final order granting plaintiff sole
physical and legal custody until February 2019. That order also suspended defendant’s
parenting time and conditioned future contact between defendant and the children on
whether the children wished to reinstate contact with defendant.
I agree with the majority that the trial court erred by entering a series of orders that
had the effect over time of modifying the children’s established custodial environment
without first conducting an evidentiary hearing. See Daly v Ward, 501 Mich 897 (2017).
I also believe that the trial court erred by suspending defendant’s parenting time for the
duration of the proceedings and conditioning future contact on the children’s wishes. The
purpose of parenting time is “to foster a strong relationship between the child and the
child’s parents.” Shade v Wright, 291 Mich App 17, 29 (2010). We presume that it is in
the children’s best interests to have a strong relationship with both parents. MCL
722.27a(1). Moreover, although the child’s preference is a consideration, it is only one
best-interest factor among many. See MCL 722.23; Treutle v Treutle, 197 Mich App
690, 694-695 (1992) (“The child’s preference does not automatically outweigh the other
factors, but is only one element evaluated to determine the best interests of the child.”).
The majority here glosses over the next step of determining whether these errors
were harmless. See Fletcher v Fletcher, 447 Mich 871, 889 (1994). In finding that they
were harmless, the Court of Appeals majority engaged in a standard assessment of
harmlessness. It noted that the trial court’s later decision in 2019 purported to assess the
issue of custody from the perspective of the circumstances existing at the time of the first
order in November 2017. See O’Brien v D’Annunzio, unpublished per curiam opinion of
the Court of Appeals, issued February 27, 2020 (Docket No. 347830), p 5. This might be
enough to show harmlessness if it could convince a reviewing court that the initial error
5
in changing the custodial environment, along with the circumstances resulting from that
change, played no role in the trial court’s later ratification of its initial improper decision.
In those circumstances, the trial court might demonstrate that it would have reached the
same decision irrespective of the error in failing to hold an earlier hearing.
But it is unclear whether such a demonstration will always be possible in this
context. As the Court of Appeals majority admits, the trial court’s later opinion
“references and relies upon a number of events that occurred after it temporarily granted
plaintiff physical custody . . . .” Id. And as the Court of Appeals dissent noted, the
development and assessment of evidence is a critical part in combating biases that might
creep into the decision-making process. Id. (GLEICHER, J., dissenting) at 3. Once initial
impressions are formed and conclusions reached, decision-makers will naturally look for
evidence that confirms the decision already made. See Kahneman, Thinking, Fast and
Slow (New York: Farrar, Straus and Giroux, 2011), p 81. In addition, the consequences
of the decision here were severe: the children were removed from defendant’s home and
were prevented from seeing her without supervision. O’Brien (GLEICHER, J., dissenting),
unpub op at 4. As the dissent observed, this likely had inextricable effects of its own,
especially on the children’s relationship with defendant. Id. Although not every similar
error in this setting will be harmful, here the trial court’s reliance on intervening facts, the
lengthy delay before it attempted to rectify its mistake, and the complete separation of the
children and the mother make the errors harmful.
But finding an error, even a harmful one, does not end the analysis. Custody cases
are perhaps unique in that remedying the harm to the wronged party risks causing even
greater harm to the children caught in the middle. As this Court has recognized, “In
many instances, it is difficult—if not altogether impossible—to effectively remedy on
appeal, and to restore the status quo ante, following an erroneous order altering a child’s
established custodial environment without causing undue harm to the child.” Daly, 501
Mich at 898. As a result, an error in “entering an order that alters a child’s established
custodial environment . . . may have lasting consequences yet effectively be irreversible.”
Id.
Where I part company with the majority is in its decision to remand the case for
further proceedings in front of a new judge unacquainted with the parties or the case only
months before the children turn 18 and the case must conclude.2 In addition, the legal
2
The majority fails to provide any justification for its decision to remand this case to a
new judge—a decision that I think is unwarranted and unwise at this stage of the
proceedings. See, e.g., Bayati v Bayati, 264 Mich App 595, 603 (2004) (noting that an
appellate court may remand a case to a different judge “if the original judge would have
difficulty in putting aside previously expressed views or findings, if reassignment is
advisable to preserve the appearance of justice, and if reassignment will not entail
excessive waste or duplication.”).
6
effect of the majority’s order to vacate is not apparent. It would seem, for example, that
we are not simply inviting the trial court to revisit the conclusions it reached after the
evidentiary hearing. One possible reading of the majority’s order is that the parties and
the children will return to the status quo as it existed before plaintiff was granted full-
time parenting time on November 6, 2017. Under this scenario, the children would be
thrust back to the physical custody of their mother despite having had virtually no contact
with her for nearly 3½ years. Such a resolution would do nothing to meaningfully
address the children’s antagonism toward their mother but instead would seem primed to
create a volatile situation. It is hard to imagine how this abrupt change would be in the
children’s best interests.
A better reading of the majority’s order—one that is at least consistent with our
precedent in this area—is that it allows for a more delicate remedy to balance the
interests of the parties and the children. We have, in fact, prescribed such an approach
for appellate courts upon determining that a harmful error was made in a custody
determination. In Fletcher, 447 Mich at 889, we held that after finding that an error was
not harmless, “an appellate court should remand the case for reevaluation . . . .” “[O]n
remand,” we continued, “the court should consider up-to-date information, including the
children’s current and reasonable preferences, as well as the fact that the children have
been living with the plaintiff during the appeal and any other changes in circumstances
arising since the trial court’s original custody order.” Id. This course of action does not
require vacatur of the trial court order. Indeed, we rejected a rule that would allow an
appellate court to order a “peremptory change of custody” precisely because that relief
would not “secure custody decisions that are in the best interests of the child.” Id.Instead of the majority’s confusing order, I would eliminate the guesswork and
expressly order a Fletcher remand so that a reevaluation could immediately take place
while the status quo is maintained. This would provide stability for the children while
giving the trial court the flexibility to quickly address what I find to be the most troubling
error below: the decision to completely suspend defendant’s parenting time and to
condition future parenting time on the children’s wishes. Because time is short and the
children’s relationship with the mother is presumed to be in their best interests, I would
explicitly order the trial court to conduct an expedited hearing on parenting time as a first
step in the Fletcher reevaluation and to make every effort to encourage the children to
develop a healthy relationship with their mother as they enter adulthood. See, e.g.,
Ludwig v Ludwig, 501 Mich 1075, 1075 (2018) (remanding for a hearing on whether
reunification was in the children’s best interests when the trial court’s order “left up to
the unfettered discretion of the [children’s] therapists the ‘frequency, duration, and
method’ of any additional contact between the defendant and the children”) (citation
omitted).
For these reasons, I concur in part and dissent in part.
7
ZAHRA, J., (dissenting).
I respectfully dissent from the Court’s order vacating the family court’s February
19, 2019 final order that is based on the family court’s November 16, 2017 temporary
order awarding appellee full parenting time without first conducting an evidentiary
hearing. Instead, I would deny appellant’s application in this case.
The rules are plainly stated. Both the Child Custody Act, MCL 722.21 et seq., and
the court rules expressly permit an ex parte order to be entered without a hearing. MCL
722.27a(12) expressly provides that a “parent may seek an ex parte interim order
concerning parenting time.” “If the opposing party objects to the ex parte interim order,
he or she shall file with the clerk of the court within 14 days after receiving notice of the
order a written objection . . . .” MCL 722.27a(13). If there is an objection, “the friend of
the court shall attempt to resolve the dispute within 14 days after receiving it.” MCL
722.27a(14). Then, “[i]f the opposing party wishes to proceed without assistance of
counsel, the friend of the court shall schedule a hearing with the court that shall be held
within 21 days after the filing of the motion. If the opposing party files a motion to
modify or rescind the ex parte interim order and requests a hearing, the court shall resolve
the dispute within 28 days after the hearing is requested.” Id. The notice provided for an
ex parte order clearly states that a written objection must be filed within 14 days.
The applicable court rules largely mirror the above statutes. See MCR
3.207(B)(1) through (5), (6)(a). The relevant statutes and court rules do not require a
hearing before a family court suspends a party’s parenting time. Together, they only
provide for a hearing within 21 days after the objection to any change in parenting time is
received.
I acknowledge that MCL 722.27(1)(c) provides that “[t]he court shall not modify
or amend its previous judgments or orders or issue a new order so as to change the
established custodial environment of a child unless there is presented clear and
convincing evidence that it is in the best interest of the child.” I also acknowledge that
Daly v Ward, 501 Mich 897, 898 (2017), cautions a family court not to enter an ex parte
order “if it also alters the child’s established custodial environment without first making
the findings required by MCL 722.27(1)(c).” Importantly, though, MCL 722.27(1)(c)
provides that “[t]he custodial environment of a child is established if over an appreciable
time the child naturally looks to the custodian in that environment for guidance,
discipline, the necessities of life, and parental comfort.” In my view, the above cited
statutes and court rules contemplate a scheme in which timely adherence prevents an ex
parte or temporary order from accruing the “appreciable time” required to alter the
child’s custodial environment. In this case, appellant did not seek to appeal the
November 16, 2017 temporary order awarding appellee full parenting time until filing an
emergency appeal on March 29, 2018. Instead, appellant first requested an adjournment
at a November 15, 2017 hearing, and then on January 10, 2018 filed a motion seeking the
8
restoration of her parenting time. At a January 17, 2018 hearing on the motion, the
family court acknowledged that appellant had made “a very good argument.” The court
set a hearing to be held two days later:
I’m going to set [a] hearing on Friday afternoon. I don’t care what you
guys have, you’re coming in here Friday afternoon and I’m going to have a
hearing on parenting time and custody.
. . . I’m clearing my docket . . . and I know there’s not going to be
twenty-five days of discovery, you’re going to put your parties on the stand,
you’re going to tell me what’s going on and I’m going to make a decision.
But on that date, appellant, with appellee’s consent, requested an adjournment
until mid-March and entered into a stipulated order on January 26, 2018 to try to resolve
the dispute in the meantime. An evidentiary hearing began on March 20, 2018. It was
only after the evidentiary hearing had begun that appellant filed an emergency appeal on
March 29, 2018. At this point, even if the Court of Appeals or this Court were to
conclude that the November 16, 2017 order was entered in error, the remedy would have
been to vacate the order and remand for an evidentiary hearing that was currently taking
place. In sum, I would conclude that appellant’s failure to appeal the November 16, 2017
order and her decision to instead request several adjournments of the evidentiary hearing
renders her claim presented in this appeal either waived or harmless. I would deny
appellant’s application.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 11, 2021
t0608
Clerk