Requests for sole custody & change of domicile; Request for a de novo hearing on the referee’s findings; MCL 552.507(4) & (5); MCR 3.215(F)(2); Butters v Butters

The court concluded that the trial court erred when it denied plaintiff-Rene-Pollard’s request for a de novo hearing on the referee’s findings. Thus, it vacated the order adopting with modification the referee’s findings and recommendations and denying her requests for sole custody and a change of domicile, and remanded for the trial court to hold a de novo hearing. The trial court conducted a hearing on plaintiff’s objections. It “asked whether the parties had any evidence that they ‘were not able to present at the time of the hearing[.]’ Plaintiff responded that the only witness she was unable to present during the referee’s hearing was an ‘expert on domestic abuse,’ claiming the referee refused to admit the expert’s testimony because of time restraints.” The proposed expert, S, “was purportedly relevant to plaintiff’s argument that she be awarded sole legal custody of the children.” At the hearing, the trial court did not grant or deny her request to present S, “stating it would review the record involving the proposed expert to determine whether it was necessary to take” S’s testimony. It later “issued its order adopting the referee’s recommendations without holding another hearing.” In the order, the trial “court stated it ‘review[ed] the recommendation de novo and finds that the referee conducted an exhaustive hearing where the parties were each able to present their desired evidence.’” It was unclear to the court “how the trial court arrived at this conclusion. Plaintiff explicitly objected to the referee’s recommendation because she was not permitted to offer [S’s] testimony.” The court held that assuming “the trial court did not simply overlook the issue and, in fact, meant to deny plaintiff’s request to present [S’s] testimony at a de novo hearing, . . . the trial court’s discretion to deny a party the right to present testimony at such a hearing is not unlimited under MCR 3.215(F)(2).” Plaintiff objected to the referee’s findings as to “the issue of custody of the children; thus, MCR 3.215(F)(2)(a) and (b), which allow the court to disallow presentation of new evidence and adopt recommendations without a hearing when no objection is made, do not apply.” Further, the record showed that “plaintiff was prepared to offer [S’s] testimony to the referee but could not. Therefore, there was an ‘adequate showing that the evidence was not available at the referee hearing.’” The court concluded to “the extent the trial court denied plaintiff’s request to hold a de novo hearing and present [S’s] testimony because it sought to ‘impose any other reasonable restrictions and conditions to conserve the resources of the parties and the court,’” it could not affirm “on this basis without explicit findings as to why the [trial] court believed such a decision was ‘reasonable’ under the circumstances.” The court retained jurisdiction.