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
JEFFREY CURTIS TODD, UNPUBLISHED
August 10, 2023
Plaintiff-Appellee,
v No. 364763
Barry Circuit Court
NIKKI LEANN TODD, LC No. 2022-000037-DM
Defendant-Appellant.
Before: RIORDAN, P.J., and MARKEY and YATES, JJ.
PER CURIAM.
In this child-custody dispute, defendant appeals as of right a final order of custody. We
vacate the order and remand to the trial court for further proceedings.
I. FACTS
This case involves a custody dispute over the parties’ two minor sons, arising out of the
parties’ divorce. The parties divorced in September 2022, but they reserved the issues of custody,
parenting time, and school district for an evidentiary hearing before a Friend of the Court referee.
After the evidentiary hearing, the referee drafted a recommended order awarding joint legal
custody and 50/50 parenting time to the parties. Defendant objected to the referee’s recommended
order, arguing that the referee’s findings regarding best-interests factors (c), (g), and (k), see
MCL 722.23; parenting-time factor (c), see MCL 722.27a; and legal custody, see
MCL 722.26a(1)(b); were erroneous. Defendant contended that the evidence strongly supported
an award of primary physical custody and sole legal custody to herself.
The trial court held a hearing on defendant’s objection to the referee’s recommended order,
during which each party presented arguments. Neither party presented new evidence. After the
parties concluded their arguments, the trial court expressly addressed best-interests factor (g):1
1
Factor (g) concerns “[t]he mental and physical health of the parties involved.” MCL 722.23(g).
-1-
The referee acknowledged that [plaintiff] was diagnosed with a—a mental
health diagnosis that would—he would have always. And that he’s required to keep
close track of his mental health and have a safety plan in place. She testified that—
or I mean she found that he is under medical care following the doctor’s
recommendations, that the current plan has been in effect for a period of time, and
there—[plaintiff] has been managing.
So the argument is that the finding of the referee was against the great
weight of the evidence. The testimony that has—that I reviewed certainly
establishes beyond a doubt that [plaintiff] has a mental illness. So that—that’s not
at issue. Does he have a mental—he absolutely has a mental illness. But as it
relates to the child custody factors it is not simply the existence of a mental illness
that is the factor. It is does it rise to the level or does it, as a result of having that
mental illness, impact his ability to parent his children. Certainly the testimony has
established, through the course of the parties’ marriage, [plaintiff’s] mental health
affected his participation in the family. But it’s not all about what was, it’s about
what is. So certainly [plaintiff’s] mental illness has affected him over the course of
time, what is currently happening and does it impact his ability to parent his
children.
As I look at all the testimony and the evidence, I might conclude something
different, but I did not have the benefit of observing [plaintiff] through the course
of this matter, listening to his testimony, determining his credibility. The referee
had that benefit. So I will not disturb her finding that Factor G weighs equally.
The trial court then addressed the clear-and-convincing-evidence standard in light of its
discussion of factor (g), stating:
But even if I did, and determine that Factor G would be weighed in favor of
[defendant], does that then rise to the level of clear and convincing evidence?
Because again, no one has challenged the issue of—of the established custodial
environment, so that makes the—the burden of proof clear and convincing
evidence, even on an initial determination, if there is established custodial
environment in both homes. And the finding is there is, and—and so the
determination of the Referee, based on all the hearings, all the information, was that
there were three factors that weighed in favor of [defendant] and all the other factors
being equal. Like I said, even if—if I said I would have given G to [defendant],
that would be four, and the six remaining weigh equally.
So is that clear and convincing evidence? I cannot find that the Referee
erred in determining that [defendant] failed to present clear and convincing
evidence that custody—that the best interest of the minor children required a—a
sole legal or sole physical custodial order.
Finally, the trial court addressed the issue of legal custody. The trial court noted that
defendant identified various items of disagreement with plaintiff. The trial court explained that
-2-
the parties were able to resolve the issue of mental-health counseling and that the trial court did
not see anything in the transcript that suggested that the parties could not reach a resolution
regarding medical care and religion. The trial concluded that it would not disturb the referee’s
findings because the referee did not materially err, the referee had the opportunity to listen to both
parties and determine credibility, and the referee’s findings “are not against the greater weight of
the evidence.”
After the hearing, the trial court issued an order rejecting defendant’s objections to the
referee’s recommended order and adopting the recommended order in full.
Defendant now appeals.
II. STANDARD OF REVIEW
To expedite the resolution of a child custody dispute by prompt and final
adjudication, all orders and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue. [MCL 722.28; see also Pierron v Pierron, 486 Mich 81, 85; 782
NW2d 480 (2010).]
Whether the trial court conducted a proper de novo hearing in response to a party’s
objection to a referee’s recommendation is a question of law reviewed de novo. Cochrane v
Brown, 234 Mich App 129, 131; 592 NW2d 123 (1999).
III. DE NOVO HEARING
Defendant argues that the trial court erred by entering the final order of custody without
applying the proper standards of a de novo hearing pursuant to MCL 552.507. Specifically,
defendant argues that the trial court reviewed the referee’s findings under a deferential appellate
standard, rather than a de novo standard required by statute. We agree.
Pursuant to the Friend of the Court Act, MCL 552.501 et seq., when a custody dispute is
submitted to a referee for hearing, a party that files a timely objection to the referee’s
recommendation is entitled to have the matter reviewed by the trial court through a de novo
hearing. MCL 552.507(4). That statute provides:
The court shall hold a de novo hearing on any matter that has been the
subject of a referee hearing, upon the written request of either party or upon motion
of the court. The request of a party shall be made within 21 days after the
recommendation of the referee is made available to that party.
Similarly, MCR 3.215(E)(4) recognizes the right to a judicial hearing:
A party may obtain a judicial hearing on any matter that has been the subject
of a referee hearing and that resulted in a statement of findings and a recommended
order by filing a written objection and notice of hearing within 21 days after the
-3-
referee’s recommendation for an order is served on the attorneys for the parties, or
the parties if they are not represented by counsel. . . .
If either party objects to the referee’s recommendation, the trial court must hold a de novo
hearing. Harvey v Harvey, 257 Mich App 278, 292; 668 NW2d 187 (2003). This hearing must
be a de novo hearing, not merely a de novo review of the referee’s recommendation. Cochrane,
234 Mich App at 132.2 “The purpose of a de novo hearing is for the trial court to render its own
decision based on the evidence, independent of any prior ruling.” Sturgis v Sturgis, 302 Mich App
706, 708; 840 NW2d 408 (2013) (cleaned up); see also Marshall v Beal, 158 Mich App 582, 591;
405 NW2d 101 (1986) (explaining that when “a trial de novo is required, the circuit court is
required to proceed as if no prior determination had been made and arrive at an independent
decision”) (quotation marks and citation omitted). The failure to provide a de novo hearing
constitutes clear legal error. Butters v Butters, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket No. 359665); slip op at 5, vacated in part on other grounds 982 NW2d 173 (Mich 2022).
In this case, the referee held a two-day evidentiary hearing and recommended that the
parents share physical and legal custody. Defendant objected to the referee’s recommendation,
specifically citing the referee’s factual findings regarding best-interests factors (c), (g), and (k).
This objection was filed within 21 days after the recommendation was made available. See MCL
552.507(4). The trial court held a hearing on defendant’s objection. Neither party asserts that he
or she was improperly denied the right to present new evidence at the hearing. Instead, the parties
relied on the record of the previous hearing. See MCL 552.507(6). The question is whether the
trial court properly resolved the de novo hearing by reaching an “independent” decision, see
Sturgis, 302 Mich App at 708, or whether the trial court improperly deferred to the referee’s
findings.
This is close. On one hand, defendant observes that the trial court deferred to the referee’s
finding under factor (g) despite indicating that it may have found otherwise based on its own
review of the record. Moreover, while not specifically noted by defendant, the trial court also
stated that the referee’s findings were not “against the greater weight of the evidence,” which
suggests a deferential appellate standard of review of findings of fact. See MCL 722.28. Plaintiff,
on the other hand, asserts that the trial court, when discussing factor (g), simply acknowledged that
the referee made credibility determinations before issuing her recommended order. Plaintiff
further asserts that the trial court would have not changed its ultimate ruling regardless of factor
(g) and that the reference to “greater weight of the evidence” should be overlooked.
After reviewing the trial court’s oral opinion from the bench, we must conclude that a
remand to that court is warranted. When discussing factor (g), the trial court stated, “As I look at
all the testimony and the evidence, I might conclude something different, but I did not have the
benefit of observing [plaintiff] through the course of this matter, listening to his testimony,
determining his credibility.” Then, the trial court stated that it “will not disturb [the referee’s]
2
Cochrane was decided before MCL 552.507 was amended to permit the trial court to premise its
decision entirely on the record of the previous hearing. See MCL 552.507, as amended by 2004
PA 210. This amendment did not negate the requirement to conduct a de novo hearing.
-4-
finding that Factor G weighs equally.” The most reasonable understanding of these statements, in
our view, is that the trial court was inclined to find that factor (g) favored defendant but believed
that it was constrained from doing so because the referee was better-positioned to determine
credibility. While we acknowledge the accuracy of the trial court’s statement regarding credibility,
the nature of a de novo hearing allows the trial court more leeway to render its own findings than
it seemed to recognize in this instance. See Sturgis, 302 Mich App at 708 (“The purpose of a de
novo hearing is for the trial court to render its own decision based on the evidence, independent of
any prior ruling.”) (cleaned up).3
Further, the trial court stated at the end of its opinion that the referee’s findings were not
“against the greater weight of the evidence based on [its] review of the Transcripts.” As noted,
the “great weight of the evidence” standard applies to appellate review of findings of fact, see
MCL 722.28, which suggests that the trial court reviewed the referee’s findings under that
standard. If this was the only reference in the trial court’s opinion to a deferential standard of
review, we might be able to overlook it as urged by plaintiff. However, this statement, coupled
with the trial court’s earlier discussion of factor (g), indicates that the trial court may have
incorrectly understood that it was required to provide some deference to the referee’s findings.
For these reasons, we conclude that trial court may have essentially performed an appellate
review of the referee’s findings as opposed to issuing an independent review and decision.
Therefore, we remand this matter to the trial court for further proceedings to render such a review
and decision.4 Given our resolution of this issue, we need not address defendant’s remaining issues
on appeal.
IV. CONCLUSION
We vacate the final order of custody and remand to the trial court for further proceedings
consistent with our opinion. We do not retain jurisdiction.
3
Plaintiff argues that the trial court explained that the outcome of the de novo hearing would not
have been different even if it had found that factor (g) favored defendant. However, we do not
necessarily read the trial court’s explanation in that manner. The trial court posed the question,
“So is that clear and convincing evidence?” Then, the trial court stated that the referee did not err
by determining that defendant failed to present clear and convincing evidence that a custody
modification was warranted. Thus, the trial court appears to have simply acknowledged that the
outcome of the de novo hearing would be a closer call if it found that factor (g) favored defendant,
but that it did not have to resolve that question at that time.
4
We note that “[w]hen nonharmless errors occur in child custody cases that necessitate a remand
to the circuit court for reevaluation, those courts should address the circumstances of the child as
they exist at the time of remand.” Butters, 982 NW2d at 173.
-5-
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Christopher P. Yates
-6-