judge david reader motion coa

8/20/2019 Judge David Reader Motion COA

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result

in

lawsuits against Judge

Reader upon

the

suggestion

that Judge

Reader lacks

judicial

immunity,

This

Motion

is supported by

the attached Brief, Exhibits,

and Afiidavits.

WHEREFORE,

Livingston

County Circuit

Judge David

J.

Reader

respectfully

requests that

this

Honorable

Court review

the facts

presented

in

this

Motion, issue

a

corrected

Opinion

resolving

this appeal,

and

grant

Judge Reader

such other

and further

relief

as

may

be

required.

Respectfully

submitted,

COHL, STOKER

&

TOSKEY,

P.C,

Dated:

September

29, 2A15

Cohl, Stoker

&

Toskey,

P.C.

Attorneys for

Livingston

County

Circuit

Judge

David

J.

Reader

601

N.

CapitolAve.

Lansing, Ml

48933

(517)

372-e000

n:\client\livingsion\circuit court\litigation\mcconchie v

voight\motion for

correclion

of ct app

opinion.doc

2

(P2495e)


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TABLE

OF

CONTENTS

TNDEX

OF

AUTHORTTTES

..,.,........,.

LIST OF EXHIBITS .........

STATEMENT OF BASIS

OF

JURISDICTION

.................

STATEMENT OF

QUESTIONS

INVOLVED...,.,..,.. .........

TNTRODUCTTON

................,..

STATEMENT OF FACTS.... ...................

ARGUMENT......,...

..........

I.

THE

FACTUAL ERRORS

IN

THE

COURT

OF

APPEALS' SEPTEMBER

15,

2015

oPtNtON

MUST

BE

CORRECTED

,........,,....,...

A.

Standard

of Review ..........

B.

Factual

Errors

..................

1.

Defendant

Father Filed an Objection

to

the

September 5,2014

lnterim

Order

..........

2.

The

Referee

Did not

Stamp the Judge's Signature on the

Order...............

3. The March 4,2015

Order

Was

an lnterim Order, and Always

ldentified

as an

lnterim

Order

....................

4.

Judge Reader

Did Not Add

the Term

"lnterim"

to

the

lnterim Order............

C.

Failure

to

Correct Factual

Errors..,...

................

CONCLUSION AND

RELIEF

,.......,1


5/55

INDEX

OF

AUTHORTTTES

Cases

Abelv

Grossman lnvestmenfs

Co,

302

Mich

App

232; 838 NW2d

204

eA13)

,..........

........,.......

Edry

v

Adelman,

486 Mich 634; 786

NW2d 567

Qa10).......,.....

.......

People

v

Nash,

244 Mich App 93; 625

NW2d

87

(2000)

,.i. ,ir........

.....^.........

Ratte

v Conigan,

989

F

Supp 2d

550

(ED

Mich,

2013)

.........^..........

Union

Carbide

Corp

v

Michigan Public Seryice Comm'n,

153 Mich

App217;395

NW2d

292

(1980)

.......

....................3

United

Airlines,

lnc

v

McDonald,

432

US

385;

e7

S

Ct

2464; 53 L

Ed 2d

423

(1977)

........

......

Court

Rules

MCR

3.215(GX1)

...........

.................

MCR

7.211

.......

MCR

7.21s(F)

...,......,..... i

MCR

7.216(4)

..................

MCR

7.216(A\(7) ..............

...............


6/55

LIST OF EXHIBITS

1.

September 15,2015 Opinion

of

the Court

of

Appeals

2. Affidavit

of

Judge

David

J.

Reader

3.

Affidavit

of

Referee

Lori

Marran

4. September

5,2A14lnterim

Order

5.

March

4,2A15

lnterim Order

6. Defendant's Objection to

Referee

Report

&

Recommendation

Dated

September

2014

7. Michigan Appeals weblog

8.

Michigan Lawyers

Weekly

article

9. Livingston Press

&

Argus article

ilt


7/55

STATEMENT OF BASIS

OF JURISDICTION

This Court

has

jurisdiction

in this

case for

purposes

of

this

Motion

pursuant

t

MCR

7.215{F)

and

(l),

asthe Court's Opinion

was

issued on September

15,2015, an

this Motion

is

filed within 21

days

of

the issuance of the Opinion.

iv


8/55

STATEMENT OF

QUESTTON

INVOLVED

I.

WHETHER FACTUAL

ERRORS

SET

FORTH

IN THE

COURT

OF

APPEALS

SEPTEMBER 15, 2015 SHOULD

BE

CORRECTED,

WHERE

FAILURE

TO CORREC

THE ERRORS

WILL SERVE TO MISLEAD

THE

PUBLIC,

AND HAVE

DETRIMENTAL

EFFECT ON

THE

CIRCUIT COURT.

The Circuit

Court

says,

"Yes."

Plaintiff-Appellant

has no response.

Defendant-Appellee

has no

response.

V


9/55

INTRODUCTION

Livingston

County

Circuit

Judge

David

J.

Reader has

serious concerns regardin

factual

errors set

forth

in

the Court of

Appeals'

September 15,

2A15

Opinion in

thi

case.

(See

copy

of

Opinion, attached

as Exhibit 1), Judge Reader

does not object t

the result

of the

Court of Appeals' 2-1 decision

in this case. However,

certai

statements contained

in the

majority Opinion

are factually

incorrect,

and must

b

corrected

in order to avoid

(a)

misleading

the

public

as

to the

Circuit Court's

practices

(b)

calling

into

question

the

validity

of

the

Circuit Court's Orders in other

cases, and

(c

suggesting

that Judge

Reader

lacks

judicial

immunity.

$TATEMENT OF FACTS

This is

a family law case

involving

a

dispute

over

custody

and

parenting

time

The facts in suppott of

this

Motion

are set forth

in the accompanying Affidavits

of

Judg

David

J.

Reader,

and Referee

Lori Marran, or within

documents already

in

the record o

appeal.

(See

Affidavit of Judge David

J.

Reader, attached

as

Exhibit

2;

see Affidavit

o

Referee Lori Marran,

attached as Exhibit

3).

For

purposes

of

this

Motion,

the

relevant

facts begin with

the

Defendant

father

April

8,

2A14 Motion

for

Change

of

Custody.

A

hearing

on

the Motion for Change

o

Custody

was

held on September

4, 2AM.

(Ex.

3,

fl2).

After

the

hearing, the Refere

recommended

denial

of

the father's

Motion,

and set

a

"parenting

time

hearing" fo

March

4,

2015,

as

set

forth

in

an

lnterim

Order

dated

Septembe

r 5,

2014.

(Se

September

5,

2A14

lnterim

Order,

attached

as

Exhibit

4). Judge

Reader

personall

signed

the

lnterim Order,

and dated it

"9-5-14." (Ex.

2,

lf2).

The

father subsequently file

a written

Objection

to this lnterim

Order, which

was denied

by the Court.

(Ex.

3,

tf2).


10/55

At the March

4,

2A15

hearing, the Referee recommended

"extended

parentin

time" to

the

Defendant

father, and

"reasonable parenting

time" to the Plaintiff

mother, a

set

forth

in

an

lnterim Order

dated March

4,2015.

(See

March

4,2015

lnterim Orde

attached

as Exhibit 5).

The March

4,2A15 lnterim Order

also

stated

that

"Defendan

shall

be

the

primary

custodian of the child." Subsequent

proceedings

were held in

th

trial Court, by

which

a full evidentiary hearing would

be held on

the

issues contained

i

the March 4,2015 lnterim

Order.

(Ex.

3,

llll3-4).

Even so, the

Plaintiff

mother filed an

appeal in

the

Court

of Appeals

from

th

March

4,2015

lnterim

Order. ln

an

Opinion dated September

15,2015,

this

Cou

vacated

the

March

4,2015

lnterim Order,

"as

it

was

the

result

of numerous legal errors.

(Ex.

1,

p

2). ln

explaining

the

errors

that

resulted

in the

vacated lnterim

Order, thi

Court made several statements

of

fact

as

to

the

trial

Court's

practices

in

this case wit

regard

to

the

signing

of

lnterim

Orders. However,

as

set

forth in

the

accompanying

Affidavits of

Judge David J. Reader, and Referee Lori

Marran

(Exhibits

2 and 3),

thos

statements

of

fact are

demonstrably false, and require correction.

ARGUMENT

I. THE FACTUAL

ERRORS

IN

THE

COURT

OF APPEALS' SEPTEMBER

15,

2A1

OPINION

MUST

BE

CORRECTED

A.

Standard

of Review.

This Motion for Correction

of Opinion is

brought under MCR

7.216(A),which

lists

in addition

to the

general

powers possessed

by

the appellate

court, additional relief

an

orders

which the

Court of

Appeals

may

grant

or

enter

as

justice

requires

and

as

th

Court

deems

proper.

MCR

7.216(A)(7).

Any form

of

relief

listed

maybe

sought

b

motion, see

MCR 7,211,

or

may

be

directed

by the Court on its

own

motion. Th


11/55

appellate

court

may

enter

any order or

judgment,

or

grant

further or

different

relief,

any

case

as

justice

may

require. See

Edqy

v

Adelman,

486

Mich

634,

638 n 3; 78

NW2d

567

(2010).

The movant

for the

relief

requested here is

the

presiding

Judge

of

the trial

Cou

in

this

case.

lt

is

incongruous for

the trial Court Judge to become

a

party

to

a

case ove

which he

has

presided,

and thus

a

Motion

to Intervene

in

this

case would b

inappropriate. Rather,

the

movant seeks to employ

the Court

of Appeals' flexible

motio

practice

to obtain the necessary relief,

without the necessity

of

intervening

as

a

par1y.

There

are

situations

where

a

non-party

to

a

case

is

an

aggrieved party

wit

standing

to

appeal. Abel

v

Grossman lnvestmenfs

Co,

302

Mich

App

232;

B3B NW2

2A4

{2013),.

This is consistent with several

decisions

of

the Federal

Courts

permittin

post-judgment

intervention

for

the

purpose

of appeal. See

United

Airlines,

lnc

McDonald,

432 US 385,

395-396

n 16;

97 S

Ct

2464;53

L

Ed

2d 423

(1977).

Th

typically occurs where

the

existing

parties

are

unwilling

to

pursue

the

necessary

relie

The

critical inquiry

in

every such

case

is whether

in

view

of

all

the

circumstances

th

intervenor

acted

promptly

after

the entry

of

final

judgment.

ld.

1

Here, Judge Reader

has

filed his Motion for Correction

of Opinion

within the

tim

period

in which

the

named

parties

could have

moved

for

reconsideration,

or

filed

a

application

for

leave

to

appeal

to

the Michigan

Supreme

Court.

Thus, this Motion

timely

filed, and should

be considered

by

this

Court,

1

See also

lJnion

Carbide Corp v

Michigan

Pubtic Seruice

Comm'n,153 Mich

App

21

223-227;395

NW2d 292

(1986),

rev'd on other

grds,

431 Mich

135;428 NW2d

32

(lgBBXa

person

whose

interests

have

been

affected

by a

judgment

or

administrative

decision has the

right

to initiate

or

continue

appellate

review

proceedings,

even thoug

post-adjudicative

intervention

would

not

be allowed

for the

purpose

of

reopenin

proceedings

in the

trial forum).


12/55

The

Court

of

Appeals

may

also

properly

consider

the

Affidavits

filed

with

thi

Motion,

even

though

the

Court normally

does not

consider evidence

not

presented

a

the trial

Court, where consideration

of the affidavits

clarifies

the

record.

See People

Nash,

244

Mich

App

93; 625

NW2d

87

(2000) (appellate

court

considered affidavit

o

court

reporter).

Further,

it is

submitted that the factual errors

noted

in

the

Affidavits

ma

also be identified within the

trial

court

documents contained

within

the

record already

the Court

of

Appeal's

possession.

B. Factual Errors

As

set forth

in

the

Affidavits,

there are

several

factual

errors

in the

Court

o

Appeals'

Opinion that bhould be

corrected.

They

do

not appear

to

have any

basis in

th

record,

and were not

presented

in

the

parties'appellate

briefs.

1.

Defendant Father Filed an

Obiection to the September

5.

2014

lnterim

Order.

On

Page 2

of

the

Court

of Appeals

September

15,2015

Opinion

(Ex.

1),

secon

paragraph,

the Court discusses the father's April

8,2014

motion for

change

of

custody

and

the

subsequent hearing

held

on

September

4, 2A14. The

Court

recites

that

th

Referee

recommended denial

of

the father's

motion

to change

custody, referred

bot

parents

to a family therapist,

and set

a

"parenting

time hearing" for March

4,2A15.

Th

Court's Opinion

then

states.

"Father

did not seek a de novo hearing or

an

appeal."

However,

the

record

in

this case reflects

that

the father, through

counsel,

filed

a

objection

which

was

subsequently

denied

by the trial

Court,

(See

Defendant'

Objection

to

Referee

Report & Recommendation Dated September

4,2014,

attached

a

Exhibit 6;

Ex.

3). This filing

was referenced

in

the

trial

Court's

Register

of

Actions

a

Item #92.

ln

addition,

both

parties

reference this fact on

page

I

of

their

respectiv


13/55

Briefs

on

appeal.

See

Defendant-Appellee's

Brief,

page

8:

"On

September

29,2A14

the

Defendant Father

filed

an

objection

to

the

lnterim Order Adopting Friend

of

th

Court Referee

Recommendation,

dated

September

5, 2014."

See

also

Plaintif

Appellant's Brief,

p

8:

"On

September

29,2A14,

the

Defendant Father filed an objectio

to

the lnterim

Order Adopting

Friend

of

the

Court Referee

Recommendation,

date

September

5,2014;'

2.

The Referee

Did

not

Stamp

the Judoe's Siqnature on the

Order.

On

page

4

of the

Court of

Appeals' Opinion

(Ex.

1), second

full

paragraph,

th

Courl

stated:

Another

procedural

error occurred

when, rather

than

issuing

a

recommendation and

proposed

order, the referee stamped the

judge's

name on

the

order

chansing

custody, thereby

giving

it

immediate

effect

and depriving

mother of the

opportunity

to

object

to the

referee's

recommendation

before

it

became

an

enforceable

order

of

the

Court.

(Emphasis

added).

As set

forth in

the accompanying

Affidavits the Referee

did

not stamp

th

Judge's

signature

on

the

March

4,2015

Order,

or

any

other

Order.

(Ex.

2,

JIJ3-4;

Ex.

fls).

That is

not the

practice

of

the

Circuit

Court.

(Ex.

2,

fl6),

Rather,

Judge

Read

personally

signed

the

Order, and

dated

it accordingly in

his own

hand.

(Ex.

2,

11113-

Ex.

3,

t[5).

lt does not

appear

that

either

of the

parties

to

this

appeal made

an

arguments

to

this effect in their respective

briefs. lt

is unknown how

the

Court came

this conclusion, as there does

not appear

to be

any

support for

it

in

the

record

(n

could

there be, as it never happened).

lndeed,

the

parties'

Briefs reflect their

understanding

that Judge

Reader

actual

signed

the

lnterim

Order.

On

page

4

of

Plaintiff-Appellant's Brief

it

states:

5


14/55

"The

parties

were ordered

to

attend

a

parenting

time

review

on March

4,

2015, wherein

the

Referee recommended

modifying

the

parties'

custody

order,

relying

on

ex-parte

communications

and

witness

testimony, which

were

not

subject

to

cross-examination

by

Plaintiff-Appellant.

Without

conducting

a

proper

evidentiary hearing,

the 44th

Circuit

Court

adopted

the

Referee's recommendation on March

4,2015."

(Emphasis added).

Further,

on

page

I of

Plaintiff-Appellant's

Brief

it

states:

"A

review

hearing was conducted on

March

4,2015,

wherein

the

Court

modified

the

parties'

custody

order

and

the

custodial

environment of the

parties'

minor child based upon

the

recomnendations

set forth

by the

Referee."

(Emphasis

added).

Most

telling is

the statement on

page

8 of


Reply

Brief:

"ln this matter,

Plaintiff-Appellant immediately objected to

the

Friend of the

Court Recommendation,

which was signed

bv

the Trial Court

as an Order

temporarily

modifying custody

on

March

4,2015."

(Emphasis

added).

3.,

The March

4

.

2015 Order

Was

an lnterim

Order.

and

Alwavs

ldentified ag-an lnterim

Order.

On

page

4

of the Court

of Appeals'

September

15,

2A16

Opinion, footnote

5, the

Court

explained

why MCR 3.215(GX1) was inapplicable

in

this case,

in

part

because

"the

order

issued by

the

referee under the

judge's

signature

was

a

permanent,

no

'interim'

order."

(See

Ex.

1,

p

4, n

5).

This

statement

of

fact is erroneous,

because

the

Circuit

Court's

March

4,2A1

Order was

at

all

times entitled

"lnterim

Order

Adopting Friend

of the

Court

Referee

Recommendation."

(Ex.

5),

This

was consistent

with

the

Court's

practice

to

label a

such lnterim orders

as

"lnterim." (Ex.

2,

flS;

Ex. 3,

116).

lt is

unclear

how

the

March 4

2015

lnterim Order, clearly

labeled

as such at

all times, could

be

construed as anything

other than

an

lnterim

Order.

t

was definitely

not

a

permanent

Order.

(Ex.

2,

flS;

Ex.

3

116)


Briefs

clearly

recognized

that

this

was

an

"interim

Order,"

with


Brief at

page

12

stating:


15/55

The

Court allowed

the

interirn ordgr

to

stand until

the

evidentiary

hearing

is completed.

(Ernphasis

added).

Further,

on

pages

21-22

of


Brief and

page

I

of


Reply

Brief it

is

stated:

The Trial

Court

stated,

"l

am

finding

that the

hearing itself

was

not

complete

and should

be continued. As

a

consequence, I'm

going

to

allow

the interim

order

at this time

to

stand

as

an

interim order until the

evidentiary

hearing

is

completed."

...

The interim order

entered

on

March

4, 2015,

rnodified

the

current

custodial

order

of

the

parties'

minor

child

which

violated

the

requirement

set

forth

in

Mann,.

.

.

(Emphasis

added).

Again,

it is

unclear

how this Court

could

make

this

misstatement

of fact,

whe

there is no support

for it

in

the

record, nor is it contained

in

either of

the

parties'

Brief

on

appeal

4. Judqe

Req*rr

Did

Not

Add the Term

"lnterinl"

to the

Inte.rim

Order.

On

page

5

of

the

Court

of Appeals' September

15,

2015

Opinion,

the

Court note

that the

trial

Judge found that

the

hearing

resulting in

the

March

4,2015

lnterim Orde

was

incomplete, and that

the

tnterim Order

it

would stand

as an

lnterim Order until

th

evidentiary

hearing

is

completed.

The

Court's Opinion

then

erroneously states:

"Th

judge

also added the

word

'interim'

to

the

order that

had

been entered on March

4."

As noted

above,

the

March 4,2015

lnterim

Order

was designated as such from

its inception, consistent

with

the Court's

practices.

(Ex.

2,

flS;

Ex. 3,

t[6).

The

"lnterim

designation

was

printed

in

the

title of the Order at

the

time it was drafted by the Referee

(Ex.

5).

According

to

the

accompanying

Affidavits,

the

lnterim

Order was

alway

designated

as such,

and

the trial

Judge

did

not

add

the

word

"lnterim"

to

the Order.

(Ex

2,

115;

Ex. 3,

fl6).

There

is

no

support

in

the

record

for

this

Court's factual

assertio

otherwise, and neither

party

mentioned it

in

their Briefs on appeal.


16/55

C. Failure to

Correct

Factual

Errors.

The factual errors

set

forth

above must be corrected by

this

Court.

Failure

to

d

so results

in

misleading

the

public

as

to

the Circuit

Court's actual

practices

with

regar

to

the

issuance

of

lnterim

Orders following

a Referee hearing.

By stating

as fact

th

false

assertion

that

the

Circuit

Court

has

a

practice

of

permitting

the

Referee to issu

permanent

orders

by

inserting

the

Judge's

signature by use

of a

stamp,

the

public

an

practicing

attorneys

may challenge

the

Court's

Orders

issued

in

other

cases.

Perhaps

the

worst

ramification

of the

Court

of

Appeals'

erroneous statement

facts with

regard

to the Circuit

Court's

practices,

i.e., stamping

the Judge's signature

o

Orders, is

the

suggestion

on

page

5 of the

September 15,2015

Opinion

that

such

a

inappropriate

use

of this

type

of

authority

violates

due

process,

such

that

the Judg

could be

sued

individually because

giving

someone

else authority

to

issue immediate

effective orders under his authority

"was

an

'administrative

act'

and

not a

'judicial

ac

protected

by

immunity."

(Ex.

1,

p

5).

The Court of Appeals' Opinion went so far

as to cite the case of Raffe v Corrigan

989 F Supp 2d 550

(ED

Mich, 2013),

in

which

a child was removed

from his father

custody

by

MDHHS

using

pre-signed

orders. The

Federal

Court

held

that

the Judg

who

gave

this authority

was unprotected

by

judicial

immunity.

(Ex.

1,

p

5).

The Court then chastised Judge

Reader:

ln

this

case,

the

practice

allowing

the

referee

to

stamp

orders

with

the

judge's

name

is

improper for exactly

the

same reasons.

The referee

had

no

authority to

issue an

immediately

effective

order

changing custody.

And

the

judge

cannot

give

carte blanche

permission

for

the referee to

sign

his

name without the

judge

ever

seeing

the

order

or knowing

anything

about the case.

I


17/55

Thus,

the

publication

of

the false

notion

that the Circuit

Court employed

practice

in

this

case

that

is

not only

violative

of

due

process,

but

is

actionable again

the trial

Judge

notwithstanding

judicial

immunity,

may result

in

lawsuits

against

Judg

Reader,

to

which

the

Court and County

(or

the State) will

have

to expend

time

an

resources

to

resolve.

Moreover,

perpetuation

of this

false

assertion

is unnecessaril

embarrassing

not only

to

Judge

Reader,

but also

to the

entire

Circuit Court,

and

th

judiciary

as

a

whole.

The

effects

are

already being felt.

The

"grossly

improper"

actions

by

th

Livingston

County Circuit

Coutt

and

the

Friend

of

the

Court Referee as

set

forth

in

th

September

15,2015

Opinion were

widely reported

in

a

weblog

addressed

to

appella

court

practitioners

throughout

Michigan.

(See

Michigan

Appeals

weblog, attached

a

Exhibit

7).

The

case

was also

repoded

in Michigan Lawyers Weekly, with

commentary from

the

parties'

attorneys,

but ethics

rules

prevented

Judge Reader

and

Referee Marra

from

commenting on the

case.

(See

Michigan

Lawyers Weekly

article,

attached

a

Exhibit

8).

However, one

of the

attorneys

quoted

in

the article

publicly

questioned

th

accuracy of the

facts

set

forth

in

the

Opinion.

ln

addition,

the case

was reported

to the

general

public

in

the

Livingston Press

Argus,

in

which

the

factual

errors identified here

were

disseminated.

However,

a

attorney

is

quoted

in

the

article

as

being troubled

by this

Court's

"obvious

error

especially

when

impeaching

the

character

of

a

well-respected

judge.

(See

Septembe

29,2A15 Livingston

Press

&

Argus

article, attached

as

Exhibit

9.)

I


18/55

GONCLUSION

AND

RELIEF

For

all

the

foregoing reasons, Livingston

County

Circuit

Judge

David

J, Reade

respectfully requests

that this

Honorable Court review

the

facts

presented

in

this

Motion

issue a

corrected

Opinion resolving this appeal, and

grant

Judge Reader

such other

an

further

relief as may be

required.

Respectfu

lly submitted,

COHL,

STOKER

&

TOSKEY,

P.C.

Dated:

September 29, 2015

Cohl, Stoker

&

Toskey,

P.C.

Attorneys for Livingston

County

Circuit Judge David

J. Reader

601

N.

CapitolAve.

Lansing, Ml 48933

(s17)

372-9000

n:\client\livingston\circuit

coufl\litigation\ncconchie

v voight\brief in support

of motion.doc

M.

Perrone

(P37940)

10


19/55

Exhibit

1


20/55

STATE

OF'MICHIGAN

COURT

OF

APPEALS

ANGELENA

JOY MCCONCHIE,

PlaintifLAppellant,

JOSHUA

DAVID

VOIGHT,

FOR

PUBLICATION

September 15,

2015

9:20 a.m.

No.

326651

Livingston

Circuit Couft

Farnily

Division

LC

No. 1A-A44132-DZ

f)efbndant-AppelIee.

Before:

Sawven,

P.J.,

and

M.

J.I(slt-v

and

SHnprRo,

JJ.

Srtaptno,

J.

This is

plaintiff

tnotlter's

appeal

from

a

March

4,2A15

order changing

prirnary physical

custody

of the cliild

fl'orn mother to

defendant father.

We vacate

that order

because

it

was issued

and entered

in

violation

of

multiple

procedural

rules

and substantive requirements,

including:

lack

of

a

motion

to change custody;

failure to

hold a full

hearing, failure

to make

a

deterrnination

regarding the

child's

established

custodial

environment,

and

failure to make

a determination

that

propel'

cause

or

a

change

of

circumstances

justified

reconsideration

of

the

child's

custodial

situation.

Tlie

palties

lived together for

several

years.

In 2009,

they had

a

child.

On November

4,

2010,

an

order

was entered

granting

mother

sole legal

and

physical

custody

of

the

chiid.l On

Decenrber 22,

201A,

father

filed a

tnotion

to have both

legal

and

physical

custody

changed

to

joint.

The

parties

reached

an agreement resulting

in

dismissal

of

that

motion

and entry of

a

consent order on April29,201

I that

gave

the

partiesjoint

legal custody,

but

gave

"sole

physical

custody" to

mother

witlt

"teasonable

and

liberal

[parenting

tirne]

as

the

parties

agree."

However,

the order stated that

the

pafiies

were

living

together

and so child support

was not

ordered.

On

September 18,2013, father

filed

a motion

to

change

custody.

On

the tlate

set fbr

hearing, tire parties reached an agreement and a consent order

was

entered

providing

that

father

was to have

parenting

tirne

altcrnate weekends

and

one midweek

evening.

'l'he

ordel

also

I

It

is

not

clear fi'om the record whether

the

pzuties

were

continuing

to reside

together

at that

time.

-1-


21/55

ref'erred the matter

to

the

Friend of the

Court

(FOC)

for

a statutory review

of child

supporl.

On

December 3, 2A73, the

FOC

issued

a Notice

of

Intent

to

Enter Proposed

Child

Support Order

providing

for child support payments

of

$303

per

month fi'om

father to

mother.

On

l)ecember

6,

2013,

father filed

otrjections

to the

praposed

child

support

order.

On

February

28, 2014,

the

referee heard

the objections, found that

the

FOC

recornrnendation

was

accurate, and prepared

a

recommended order.

On

Aplil

8,2014, father filed

a

motion

for

change

of

custody,

alleging that the

child

was

unsafe

at

mother's

apartment because of an incident

on March 29,2A14,

when the five-year

old

chiid

wandered

into the hallway while

his

rnother

was asleep

and

was

accidentally locked

out

of

the

apartrrent.

T'he

child

was unhurt.

Child Protective Services

(CPS)

investigated

the

incident

and

rernained

involved

with

rnother

and chilcl for

several months.

A

hearing

on the rnotion

to

change

custody was

held

on Septernber 4,2014. At

the hearing,

the

CPS worker assigned

to

the

case

testified that

the

child was safe,

mother's

home

was

adequate, the incident

was

accidental,

and--contrary

to

father's

allegations-the

mother

did not

have

a

substance

abuse

problem.

'ather

also

testified. The referee found

that the

child's

established

custodial envirorunent was

with

rnother and

tliat

there was neithcr

proper

cause

nor

a

significant

change

in

circumstances to

justify

considering

a

change

in

that oustodial

environment.

Accordingly,

slie

denied thther's

rnotion

to

change

custody.

The order also referred

both

parents

to

a farnily therapist and set

a

"parenting

time

heating"

for

March

4,2015.

Father did not

seek

a

de novo hearing

ol an appeal.

When

the

parties

convened

for

that

"parenting

tirne

hearing," the referee entered

an order

immediately transfeuing

prirnary physical

custody

to the

father.

We

vacate that

order

as

it was

the result

of

numerous legal errors.

The first two

enors occurred

before

the

referee's

ruling

and

constituted

violation

of

rurother's riglit to due

process:

Due

process

is a

flexible

concept,

the

essence

of

which

requires

fundamental

fairness. The

basic

requirements

of

due process

in

a

civil case

inslude

notice

of

the

proceeding

and a meaningful

opporhrnity to

be heard

fAl-Maliki

v LaGrant,

286

Mich App 483,485; 781 NW2d

853

(2009) (citations

omitted).1

The

first violation

occurred

when

a change

of

primary physical

custody was

considered at

the

March 4,2015 hearing even

though

no motion to change

physical

custody was

pending.

Father's

October

2014 rnotion had

already been

denied

without

appeal, no new rnotion had been filed,

and

there

was

no

emergsrlcy that required the

court

to

dispense with

the requirements

of

fair

notice

provided

by the

rules

governiug

rnotion

practice

and

as a

matter of

due

process.

'I'he

second

violation

occurred dur:ing the

hearing.

Father's counsel conducted a

direct

exaurination

of.

the

family

therapist.

'l'he

therapist's

testirnony was,

for

the most part,

a

recitation

of father's allegations that

rnother's

prescription

rnedications,

either

as

a

result

of abuse

or'

prescribecl

use, were

preventing

her frorn waking

up early enough in the

morning

to

take the

child

to kindergarten,

which

resulted in several absences.

The

therapist opined

that

father's

allegtitions

regarding

possible

substance

abuse

rnight

be

true,

and she

expressed oonceill that tho

.)


22/55

child

had missed

rnultiple

days

of kindergarten.z When rnother's counsel sought

to closs-

examine the therapist, the referee

stated

that

there was

little

tirne

left

in

the single

hour that

had

been

set

aside

tbr

the

hearing.

Further, she

required

that if mother's oounsel

wished

to

cross-

exarnine father's

r,vitness

at all,

mother

would have to

pay

the witness at her

professional

rate for

the

time

spent on

cross-exalnination. Moreover,

the

referee did

not afford

any

time

for

rnother

to

call her

own

witnesses nor

did

she continue the llearing for

completion

on

another

day.

The

referee's actions denied rnother an opportunity to be heard on

a

motion to change custody that

had not even

been

filed

and noticed

for

hearing.

The referee made several substantive errors

in the course

of

rnaking her

ruling,

including

what appears

to

be

a

cornplete disregard

of

the substantive

law

governing

a

oourt's

decision

when

considering a

change

of

ctistody. These

requirernents are well-known

and

clearly set out in

YodvarkavGrasmq,er,259

MichApp

499;675 NW2d 841

(2003).

First,therefereedidnot

find that

father had established

proper

cause, i,e., "one or more

appropriate

grounds

that have or

could

have a

significant

effect on the

child's

life

to

the

extent

that

a

reevaluation

of

the

child's

custodial sittration

should be undertaken,"

nol'did

the

referee

find

that father had

established

a

material

change

of

circumstances,

i.e., that

"since

the

entry

of

the

last

custody order,

the

conditions surrounding

custody of the child, which have or

could

have

a

signi,/icont effect on the

clrild's

weli-being,

have

materially

changed." Id. at 511,

513

(ernphasis

in original). In

the

absence

of

sucli a finding, which

presumably

would

only

be

made

after a motion

was

filed and

the nonmoving

party

had an opportunity

to

tespond, it was improper

for

the

referee

to

even

consider a reevaluation

of

the

best interest

factors

and

the

child's

custodial situation.

See iri,

at

5i1,

513.3

Second,

the referee

failed

to

make

a

determination regarding the cliild's established

custodiai environment even

tirough

such

a

firiding

is

necessary

in

order

to

deterrnine

the burden

of

proof.

See id. at 509.

Third,

the

referee made

no

mention

of

the

best

interest factors

prior

to

ordering

the

change in

custody.

See fu/.

at

516.

Slie

appears

to have realized

her

error after

the

parties

and

their

attorneys had

left

the courtroom

and

later

that

day,

without

the

presence

of

parties

or

counsel, stated her best-interest findings from the bench.a

At

a

subsequent

hearing,

the

referee

stated that the failure to

follow

the

Yodvarlca

framework did

not matter because she had merely changed

parenting

time,

not custody.

This

suggestion

is

directly

contradicted

by

the

language

of

the

order,

which expressly

provided

that

father

would

be the

"primary custodian of the

child."

The referee also suggested that there

was

2

The therapist

testified

that

the child, according to father,

had

missed

22

days

of

kindergarten. It

was

later revealed that the

child only missed 1

I

days.

3

Tn Vodvarka,

we

explained that

tht: initial

requirernent

that the cour"t

find

proper

cause or

change

of

oircumstances before reevaluating the

child's

custodial situation

was

"intended to

erect

a

barrier

against

reuroval

of

a

child

frorn

an

established custodial environment and to minimize

irnwarranted

and

disnrptive changes of custody orders." Vodvarka,

259

Mich

App

at

509

(intemal quotation omitted).

a

Mother argues that the

refbree's findings

on

best interest were

in

error; however, we

wiil

not

discuss

those arguments in light

of

our decision to

vacate

the order

because of other errors.

-3-


23/55

no such

thing

as

"primary

plrysical

custody"

in the

law and

that any

issues

regarding which

parent

provided

the

horne

for

the

child

were merely

parenting-time

issues.

Contrary

to

the

refbree's statement

that

physical

custody

is not

mentioned

in

the Child

Custody

Act,

MCL

722.21

e{ seq., the

phrase

does appear

in

section 26a of that

Act.

See

MCL'122.26a. Second, the

meaning

of

the

term "physical custody"

has been

well

and

repeatedly

explairted

in

caselaw.

See

Dailey

v

Kloenhanter,29T

Mich App

660, 670; 81 1 NW2d 501

(201

1).

The

referee's observation

is

correcl insofirr

as

we

have

recognized

that not

every

modiflcation

of

parentir-rg

tirne

amounts

to

a change of

physicai

custody

and

that

the

terms

"physical

custody"

and

"parenting

tirne"

are

sometimes used

without

precision.

Moreover,

it

is

not ahvays

easy

to ascertain

at lvhat

point

parenting-tirne

changes

rise

to tire level

of

a change

in

prirnary

pirysical

custody, This

was

recognized

in Shade

v

l{right,291

Mich

App

17,

27; 805

NWzd

i

(2010),

where lve held

that not

all

changes

to

parenting

time are

so

significant

that the

child's

established

custodial

environment is

altered.

We

noted that the

prirnary

concern

in

child

custody

determinations

"is the stabilify

of the child's environmeut

and avoidance

of

unwauanted

and

disruptive

custody changes,"

while "the

focus

of

parenting

time

is to

foster

a

strong

relationslrip

between

the

child

and

the

child's

parerts." Id.

at

28-29. In

this

case,

the basis

for

the

custody change

was

father's

allegation that

the mother

was not

providing

a

stable

environmerrt,

not

that

schedule

changes should be

made

to

assure his continuing

lelationship

with

the

child.

Further,

the degree

of

change in

this

case

is

anything

but

ruodest.

Father

now

has

physical custody of the

child all

but every other weekend,

which

is the

complete

opposite

of the

previous

arangement.

By contrast,

in

Shade,

the

change in

parenting

time

resulted

in

a net

reduction

of about nine days

per year

in

parerrting

time to the

nonmoving

party.

[d. at27

tt3.

While

there ale cases

where

the

line between

a

parenting

tirne change and

a custody change

can

be difficult

to

discern,

this is not one;

the facts

in this

case clearly

speak

to

a change

of

custody.

Tliis

was

implicitly

recognized

by

the

leferee,

given

that the best-interest

factors she

reviewed

fi'or-n

the bench

were

those set out

in

MCL

122.23,

which

are

used

in

deter-mining cr:stody,

not

tlrose set

out

in

MCL722.27a(6),

which

govern parenting-time

decisions and

by the text of

the

order changing the

child's

primary

custodian.

Another

procedural

error oocured

when, rather

than

issuing

a

recommendation

and

proposed

order,

the

referee

stamped

the

judge

's

name on

the order

changing custody, thereby

giving

it irnmediate

effect

and

depriving mother

of

the

opporlunity

to object

to

the

referee's

recommendation

before it

became an

enforceable order of the

court.

Absent a request

for

an

emergency

change

(a

reqnest

which

was not made and

for

which

there

was

no basis),

during

the

}l-day

period

following

a referee recommendation,

the status

quo

is

to

remain

in effect and if

objections

are

filed, the

objecting

party

is

entitled

to

a

de

novo review

or hearing

before

the

judge.

MCR

3,21s(EX4).5

5

A

trial

coud

has the

power

to,

"by

an

administrative

order or

by an

order

in

the

case,

provide

that

the

referee's

recommendation

will take

eft-ect on

an

interirn

basis

pending

a

judicial

hearing."

MCR

3.21s(GX1).

This

provision,

however,

has no applioation

to this

case. First, the

order

issued

by the

referee under

the

judge's

signature

was a

pennanent,

not

"interitn"

order.

Second,

the

court rule

explicitly

states that no adrninistrative

order

may

give

interitn

efl'ect to

a

referec's

order

that changes a child's

custody. MCR

3.215(GX3X1r.

-4-


24/55

'lhe

inappropriate

use

of this type of aclninistrative

authority was the subject of a recent

federal court

decision

involving

the removal

of

a child from

his

parcnts

because his lather had

given

hirn a

"Mike's

Hard

Lemorlade"

at a baseball

game

without

realizing that it

contained

alcolrol. Ratte

v

Cotigan,989

F

Supp

2d 550, 553

(ED

Mich,20l3).

The Departrnent

of Health

and

Hurlan

Services

(DHS)

removed

the

child

using

pre-signed

orders

that

the

judge

had

provided

for

their

use.

1d, at

556.

One

of the

issues

was that the DIIS wrote the order

on

a

form

that the

judge

had

pre-signecl.

Id.

The lbderal

district

court

lield

that

this

practice

violated

due

ptocess.

Id.

at 561.

Indeed,

the

court held

that

the

judge

could be sued individually

because

giving

authority to sorneone

else

to issue orders under her

authority was an

"administrative

act"

and

not

a

'Judicial act"

protected

by

immunity.

Id.

at

560-561.

In

this

case, the

practice

allowing the

referee to

stamp olders

witir

the

judge's

name

is

improper

for

exactly

the same

reasons.

The referee had no authority

to

issue an immediately

effective order

changing

custody.

And

the

judge

cannot

give

carte blanohe

pennission

for

the referee

to

sign his

name r,vithout the

judge

ever

seeing

the

order or knowing anything about

the

case.

Mother tirnely objected

to

the March

4,2A15

order, and the case was reviewed by the

judge

who

lecognized that

a

flill

hearing had

not

taken

place.

Howevcr, rather than vacating the

order

and

schedr"rling

a

proper

hearing, the

judge

stated,

"I am finding that the

l-rearing

itself

was

not cornplete

and

should be continued. As a consequence, I'm

going

to

allow the interim order

at this tirne to stand as an

interirn

order

until

the

evidentiary hearing is cornpleted."

The

judge

also added the word

"interim"

to the order that had been

entered

on Malch 4.

Despite

being

directed

to complete the

hearing,

the

record

on appeal contained

no

indicating

that it was ever completed. Accordingly, through the clerk's office, we directed

the

parties

to

provide

copies

oforders

entered

since thejudge's order

that

the hearing

be

reconvened

and

completed.

Based

on the

orders the Court thereafter received

from the

parties,

we take

judicial

notice, MRE

201,

of

the subsequent

proceedings,

Rather than

completing

the hearing as

ordered

by

the

judge,

on

May

ll

,

201,5

,

the referee

refeued the

case

to

the

Friend

of

the

Court

for

"an

expedited

review

of

parenting

time."

Mother

filed

objections

to this order and on

June

29, 2015, the

judge

issued

an

order

stating that "the

custody

hearing has not been completed and .

.

.

the Referee in this matter shall cornplete the

custody

hearing

forthwith."

Nevertheless, the court continued the "interirn orders"

until

the

conclusion

of

such hearing,

which

as

of

oral arguments before

this

Court had not

yet

been

convened.

Thus,

the

irnproperly decided and

improperly

issued

Mareh

4

order that

changed

primary

physical

custody fi'om

mother to father remains in effect.

The

rnanner

in

which

the change

of custody was ordered was

grossly

improper. The

order

is

vacated

and

the child

shall be returned

to

the

primary physical

custody

of

mother.

Thereafter,

father,

should he

wish

to do so, may

file

a

proper

motion

for

change

of

custody.

Should

he

file

such

a

motion, we t'urther direct that all

proceedings

relevant

be

conducted on an

expedited basis

and

that

all

such

prooeedings be conducted

directly

by

the

trialjudge

rather than

referred to the

referee.

MCR 7.216(A)(7),

(9).

Taxable

costs to appellant

as

the

prevailing

party.

MCR 7.219(A).

/s7

Douglas

B.

Shapiro

/s/

Michael

J. Kelly

-5-


25/55

STATE OF MICHIGAN

COURT OF'APPEAL

ANGELENA JOY MCCONCHIE,

Plaintiff-Appellant,

JOSHUA DAVID VOIGHT,

FOR

PUBLICATION

September

15,2015

No.

326651

Livingston

Circuit Court

Family Division

LC

No.

10-444132-DZ

Defendant-Appellee.

Before:

SAwyER,

P.J., and

M.

J.

Krlly

and SuaRIRo, JJ.

SewvrR, P

.J.

(dissentittg).

I respeotfi.rlly dissent.

Wrile

I

do not necessarily disagree

with

the

reasoning of

the

majority and its conclusion

that

this

matter

was mishandled by tlie

referee,

I do disagree that

the

best remedy

is to

reverse

the

lower

couft

and have

it

start over.

I

reach

this

conclusion

in light of the trial courl's indication

that the

referee's

recommendation

would

only

constitute

a

temporary order pending

a

full

resolution of tire rnatter and an entry

of

a

final order. At

this

stage,

I believe

that

the

better

and

more expeditious

resolution

of

this

case

would

be merely

to

remand the matter to the

trial

court

with directions that

the

trial

court itself sirall conduct the evidentiary hearing

necessary to

reach

a

final

disposition of

this

rnatter

and

to

prornptly

enter an order reaching a final resolution

of

this

matter.

Thereafter,

any

party

dissatisfied

with

the

trial

court's resolution

of

the

matter could

pursue

an appeal.

/s/ David H. Sawyer

-1-


26/55

Exhibit

2


27/55

STATE OF MICHIGAN

IN

THE COURT

OF

APPEALS

ANGELENA

MCCONCF,IIE,


V

JOSHUA

DAVID

VOIGHT,

Defendant-Appellee.

Neal

D. Nielsen

(P26577)

Attorney

for Plai ntiff-Appellant

2000

Grand

River

Annex, Suite 200

Brighton,

Ml

481

'14

(810)

227-7777

David

G. Stoker

(P24959)

Timothy M. Perrone

(P37940)

Cohl, Stoker

&

Toskey,

P.C.

Attorneys

for Livingston County

Circuit

Judge

David

J. Reader

601

N. Capitol Ave.

Lansing,

MI

48933

(517) 372-e000

Court

of Appeals No.

326651

Livingston County Circuit

Court

Case

No.

10-44132-DZ

Christine M. Heckler

(P73382)

Heckler Law

Office

Attorney

fo

r Defendant-Appellee

8163

Grand

River

Ave.,

Suite

100

Brighton,

Ml48114

(810)

227-1700

AFFIDAVIT

OF

JUDGE

DAVID

J.

READER

l, Judge

David

J. Reader,

being

first duly

sworn, state as follows:

1.

I am

the

presiding

Judge

of

the

Livingston

County

Circuit

Court in

the

above-

captioned

matter. I

make this

Affidavit in

support

of my

Motion

for Correction

of

Opinion

in

this

appeal.

The

statements

contained

in

this

Affidavit are true

to

the

best

of my

knowledge.

lf sworn

as a

witness,

I

am competent to testify to the

truth

of the

matters

asserted.

2.

After

the September

4, 2A14 hearing

on

the Defendant

father's

Motion

for

Change of

Custody,

the

Referee recommended

denial

of

the

father's Motion, and

set

a

"parenting

time hearing"

for March

4,

2015,

as

set

forth

in an lnterim

Order

dated

September

5,2014.

I

personally

signed

the

lnterim Order, and

dated

it

"9-5-14."

A

photocopy

of the original order is marked Exhibit

"A"

and

attached

to this

affidavit.

The

photocopy

clearly shows affiant's original

signature.


28/55

3. After

the hearing on

March

4,

2015,

the Referee recommended

"extended

parenting

time"

to

the

Defendant

father,

and

"reasonable

parenting

time"

to the

Plaintiff

mother,

as set forth in an

lnterim

Order

dated

March

4,

2015,

signed

by affiant. A

photocopy

of

the

original order is marked Exhibit

"8"

and

attached

to

this affidavit.

The

photocopy

clearly

shows affiant's

original

signature.

This Order

is

the subject of

appeal

to the Court

of

Appeals

in

this

case.

4.

With regard

to

the

March

4,2015 lnterim Order

recommended in

this case by

Referee

Lori

A.

Marran,

I

personally

signed

the

lnterim Order

with my own hand on

March

4,2A15,

and inserted

the date

of

my signature next to my signature. The order

was

not signature

stamped.

5. The

March

4,

2A15 lnterim

Order issued in this case

by

Referee Lori A.

Marran

was at

all times

labeled

as

an

"lnterim

Order,"

consistent with the Court's

practice,

and

I

did

not add the word

"lnterim"

to

the

title of

the

Order

or

anywhere else.

The word

"lnterim" always appeared

in

the

Order

and

was not

later

inserted

after

signature by affiant.

6.

ln

contested

referee hearings

where

lnterim

Orders may

be recommended

there

is no

"Carte

Blanche"

authorization

given

by

atfiant

for

a signature stamp

to

be

used by

a referee

in

lieu

of

affiant's

original signature;

recommendations

in

such

cases

by a

referee

are reviewed

by affiant

personally.

Further,

affiant

is not

aware of

an

lnterim

Order

in

any contested referee

hearing

on

any domestic file assigned

to

affiant

being approved by other than an original signature of affiant or

a

Judge

assigned to the

Circuit Court acting

in

affiant's absence.

,)

STATE OF

MTCHTGAN

)

couNTY

oF

L|VINGSTON

)

-

Subscribed and

sworn

to before ffie,

S+kudQgl,

2015,

bv Judge David J. Reader.

,rrll ttt)ttt))

)

Notary

Public,

tnis

'ZQ

Oay

of

Notary

County of Livingston, Michigan

Acting in the County of Livingston_

My commission expires:

Q-to-2'olq

,

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reader.doc


29/55

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31/55

Exhibit

3


32/55

STATE OF MICHIGAN

IN

THE

COURT OF APPEALS

ANGELENA

MCCONCHIE,


V

JOSHUA DAVID

VOIGHT,

Defendant-Appellee.

Neal D.

Nielsen

(P26577)

Attorney for

Plai ntiff-Appe

llant

2000 Grand

River

Annex,

Suite 200

Brighton,

Ml 48114

(810)

227-7777

David G. Stoker

(P24959)

Timothy M. Perrone

(P379a0)

Cohl, Stoker & Toskey, P.C.

Attorneys

for

Livingston

County

Circuit

Judge

David

J. Reader

601 N.

Capitol Ave.

Lansing,

Ml 48933

(517) 372-9000

Court of Appeals No. 326651

Livingston County Circuit Court

Case

No. 1O-44132-DZ

Christine

M.

Heckler

(P73382)

Heckler Law Office

Atto

rney

fo

r

Defend ant-Appel lee

8163 Grand

RiverAve,,

Suite 100

Brighton, Ml

48114

(810)

227-1700

AFFIDAVIT

OF REFEREE LORI A.

MARRAN

l,

Referee

LoriA.

Marran,

being

first duly sworn,

state

as follows:

1.

I

am a Friend of

the

Court Referee

for the

Livingston County

Circuit Court

in

the

above-captioned

matter.

I make

this Affidavit

in

support

of

Judge

Reader's

Motion

for

Correction

of

Opinion

in

this

appeal.

The statements contained

in this

Affidavit are

true to

the

best

of my

knowledge.

lf sworn as

a

witness, I am competent

to

testify to

the

truth

of

the

matters assefted,

2.

On

April

8,2A14, the

Defendant father

filed a

Motion

for Change of

Custody.

A

hearing on

the

Motion

for

Change

of

Custody was

held on September

4,2014.

After

the

hearing,

I

recommended

denial

of the

father's

Motion,

and

set

a

"parenting

time

hearing"

for

March 4,2015,

as

set

forth in an

lnterim Order

dated

September 5,2A14.

The father subsequently filed

a

written

Objection to

this lnterim Order, which was denied

by

the

Court.


33/55

3.

After

the

hearing

on

March

4,

2A15,

I

recommended

"extended

parenting

time"

to

the

Defendant

father,

and

"reasonable parenting

time" to the

Plaintiff

mother,

as

set forth in an lnterim Order dated March

4,2015.

4.

The

March

4,

2015

lnterim

Order also

stated

that

"Defendant

shall

be

the

primary

custodian

of

the child." Subsequent

proceedings

were held

in

the trial Court, by

which a

full

evidentiary hearing

would

be

held on

the

issues

contained in

the

March

4,

2015lnterim

Order.

5.

The

March

4,2015

lnterim

Order issued in this

case

was

personally

signed

and

dated by

Judge Reader

in

his

own hand on March

4,2015.

6.

Further,

the

March

4,2015

lnterim Order

issued

in

this

case

was

at

all times

labeled as

an

"lnterim

Order,"

consistent

with

the

Court's

practice,

and

Judge

Reader

did not add the word

"lnterim"

to the title

of

the Order or anywhere

else.

STATE OF MICHIGAN

COUNTY OF LIVINGSTON

)

)

^

Subscribed

and sworn

to before ffie,

Sqdala4,

Zo1s,

by Referee

Lori A. Marran.

a Notary

Public, this

County

of

tiuings*€ft,

Michigan

Acting

in

t#ffiffit

Livingston

My

commission

expires:

t

'

27'

aat

0

n:\client\livlngston\circuit

court\litigation\mcconchie

v

voight\aff

of referee

marran.doc

al.n.Dzfu

4toru

or

tl

2


34/55

Exhibit

4


35/55

w

llt e

rt

Stute

oJ'tYl ichigurr

Fmfily

{'uurt

J'ot'

the

County

oJ'Livinosturr

r\ngele

n

it

NI

r:

Ct

n chie

lllaintif't'

v

Joshua

Voiglrt

Defenclarit

File

No,

10-+,1132-DZ

Juclge:

David

J.

Rearler

Rel'eree:

Lori

r\.

iVlarran

.i-'i)j)

/

l,,l

ti'':i

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a

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Courtroolu ultltc F.rrnil;r Corrn

lt

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ol'l.lorvell,

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of

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{

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rt

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hearirrg

belirre

Lori

A.

IVlarurn

on Seplcnrber 3,

],01{,

The

prtrties

rppeared

ils

rloted

in

tlte

Ret'eree

Repor"t

ilnd

Rcconrnrcndation

orr this

sarne

date.

The

Rel'eree

lrlvirrg

lrcarrJ

thc

pnrties

arrd their

aftofrre)

(if

any) irr accordance

rvith

fulCR 3.115, rnatle a

Recomnxndatian,

'l'he

Releree's l].ecomntenclation rvhiclr is

set

lortlr belorv,

shall

becom*

un

Orderof'

the

Court,

urrless

rvrinen

objectious are

l'iled

with

thc Cr:ur[,

an.d

the

objections

arc

properly

noticed

lor

hetring

bclolc tlre

Judge

assigned to

{he

case,

rvitltitr

?

I

clays,

as

set

lorth

in

the notice contairrcrl

in

the

Rel'eree's Report

tncl

Reconrrnendation. The

Court beirrg

lirlly

udvised

in

tlre

prernises

rnirkes

tlre

fb

I

lorvi ng

cleternr

irrltions :

IT IS }ItrITEBY

ORDERED:

The

request

of

Delendant

Joshua

Voight

tbr motlit'rcation

ot'custody

of

the

minor child

is denied.

If

either Farent is

to

be atvay

liom

the minor

child

during

their

parenting

time

fbr more

than

4

hours,

rhat

parent

slrnll

give

the other

pilrerlt

the first right

to

care lbr the child prior

to ilny other

person.

Ilrlre

exercise

of first

lefirsalextends

past

the

child's

becltime,

the

child

shallspend

the

niglrt

in

the

residence

of

the

p&reflt

exercising

the

option

and

the

child

shall

be picked

up

in

the

nrorning

by

the

parent

rvith

the

regularly schecluled parenting

tinre,

1'lre

pprtiut

shnll engnge

rvitli

Dr,

Charlene

ltushler Ph.D.,

1086

Charles

I'1.

Omdorl'Drive,

Brighton.

lvli

48116

{810)

229-8074 tbr

therapy

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36/55

Exhibit

5


37/55

YOL

Angelena

McConchie

Plaintiff

Joshua

David

Voight

1-Ilutr

COtr'Y

'

441.1I

Circuit

C,:uii

CountY

Ctcrk';r

Oliico

STATE

OF MICHICAN

IN THE

44'h

CIRCUIT COURT

FAMILY

DIVISION

Case

No:

l0-44132-DZ

HON,

DAVID

J.

READER

Defendant.

Neal

D.

Nielsen

(P26577)

Attomey

for

Plaintiff

2000

Grand

River

Annex, Suite

200

Brighton, MI48l

l4

{8t0)227-7777

Christine

M. Heckler

(P73382)

Heckler Law Office

Attorney

for Defendant

8163

Grand River Ave.,

Suite

100

Brighton,

Ml48l

l4

$lq227-1700

DEFENDANT'S

OBJECTION TO

REFEREE

REPORT

&

R.BCCOMENDATION,

DATED

SEPTEMBER

4,2014

Defendant,

Joshua

David Voight,

by

and

through

his attorney, Christine M. Heckler,

states

as

follorvs for

his

objection:

I.

A

transcript

request

was made

to

the

Circuit

Court

Administrator's Oflice on September

17,2014;

however,

the transcription service

did not

contact

counsel

to

prepare

the

trans*ipt

until

the

date this

objection

was filed; thus,

counsel

reserves

the

right

to

amend

this

objection

upon receipt

of

the transcript.

2. If

either party

objects

to

a

referee's

report,

the trial

coun must

hold

a de novo hearing.

MCL

552.507(4); Cochrane v

Brown,

234

Mich

App 129,

l3

I -134;

592

NW2d

123

(1999).

3.

Pursuant to MCR 3.215,

"[t]o

the

extent

allowed by

law, the court

may

conduct

the

judicial

hearing

by

review

of

the

record

of

the

referee hearing,

but

the court

must allow

the

parties

to

present

live

evidence

at

the

judicial

hearing."

4.

Referee

Marran

lountJ

that

"defendant

did

not

meet

his burden

of

proof

by clear and

convincing evidence to

warrant

modification of

the

current custody

order.'

5,

However, the

proper standard applicable

to

the threshold

question

of

proper

cause

or

changc

in

circumstances is only

a preponderance:

Under

the

Vodvarka framework

the threshold

question

in

any

motion

that

would result

in

a

change

in

the established custodial

environment

is

whether the

moving

party

has established

proper


38/55

cause or

change of circumstances. MCL

722.27(l)(c);

Vodvarka v.

Grasmeyer,259

Mich App 499; 675

NWzd

847

QA$).

The

moving

party

has the burden

ofproofby a

preponderance

ofthe

evidence to

establish that either proper cause

or

a

change

of

circumstances

exists.

ld.

at 509,

Proper

cause means

one

or

rnore appropriate

grounds

that

have

or

could have

a

significant effect

on

the

child's

life

to the extent

that a reevaluation of the child's custodial situation

should

be

undertaken. ld.

at

5l

l.

judge david reader motion coa

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