Divorce; Motion to change children’s domicile; MCL 722.31(4); Rains v Rains; Established custodial environment (ECE); MCL 722.27(1)(c); Modification; Sabatine v Sabatine; Statutory best-interest factors (MCL 722.23); Factors (a)-(d) & (f)-(k); MCR 3.210(C)(5); Judicial bias/request for reassignment; Attorney fees; MCR 3.206(D); Lack of an evidentiary hearing; Reasonableness

In this divorce case, the court held that plaintiff-mother established by a preponderance of the evidence that the MCL 722.31(4) factors supported changing the domicile of the parties’ children to Canada. Further, the trial court did not err in finding that the children had an ECE with plaintiff, and that the best-interest factors supported her request to move them to Canada. The court rejected defendant-father’s judicial bias claim, and upheld the trial court’s award of attorney fees to plaintiff. Reviewing the trial court’s findings on the MCL 722.31(4) factors, the court found defendant failed to show any error. Next, it rejected his argument that the trial court’s finding of an ECE with plaintiff was against the great weight of the evidence. “The evidence showed that the children looked to [her] for guidance, discipline, the necessities of life, and parental comfort. Modifying how defendant spent his parenting time with the children because of the move did not involve significant changes to” their ECE. In light of that, she only had “to prove by a preponderance of the evidence that the move was in the children’s best interests.” After reviewing the trial court’s findings on the challenged best-interest factors, the court held that she did so. Defendant failed to show that the trial court wrongly decided that factors (a), (b), (d), (f), and (k) favored plaintiff, and that factors (c) and (g) were even/neutral. It also did not err in finding that factor (i) did not apply where even the older child (age 6) was unable to express a reasonable preference. As to the trial court’s order awarding plaintiff $15,421.08 in attorney fees, the court rejected defendant’s argument that the evidence did not support the “ruling that [she] lacked the ability to pay her fees.” It also found that there was no reason to apply judicial estoppel to bar her motion, and no error in “the trial court’s decision that defendant had the ability to pay” them. Further, as he “did not properly challenge the reasonableness of the amount of fees charged by plaintiff’s attorney or the billable hours, or specifically request an evidentiary hearing, there was no need for the” trial court to conduct one. Finally, he failed to show that it erred in determining the requested fees were reasonable. Affirmed.

Custody & parenting time; Due process; Notice of the nature of the proceedings; Change of custody before an evidentiary hearing; Harmless error; Lieberman v Orr; Barretta v Zhitkov; Distinguishing O’Brien v D’Annunzio; Confidential guardian ad litem (GAL) or legal guardian ad litem (L-GAL) report; MCL 722.24(3); Children’s best interests; MCL 722.23; Factors (b), (d), (h), (j), & (k); International travel prohibition; MCL 722.27a(9); Attorney fees; MCR 3.206(D)(2)(b); MRPC 1.5(a); Wood v Detroit Auto Inter-Ins Exch; Remand to different judge; Established custodial environment (ECE)

The court found that defendant-father was deprived of due process when the trial court changed both physical and legal custody of the parties’ children before conducting an evidentiary hearing, but the error was harmless. Further, the parties were entitled to a copy of a confidential GAL or L-GAL report now that the trial court had issued its ruling. Defendant’s challenges to the trial court’s finding on several of the best-interest factors failed, and the trial court did not abuse “its discretion by prohibiting him from traveling internationally with the children without a prior court order.” Finally, plaintiff-mother was entitled to attorney fees but remand was required as to the amount. As to the change in custody without an evidentiary hearing, this case was “like Barretta, in that the interim changes in parenting time amounted to a change in the children’s” ECE. But it was unlike O’Brien in that there was no indication the trial “court’s interim orders affected its final opinion and order.” Defendant could not show prejudice. The “effect of the orders was harmless in the overall best interests analysis[.]” But the court held that the trial court erred in not releasing the confidential report to the parties after the evidentiary hearing and its ruling. Next, it concluded the trial court’s findings that factors (b), (d), (h), (j), and (k) favored plaintiff were not against the great weight of the evidence. As to attorney fees, the court rejected defendant’s assertion “there was no causal connection between [his] conduct and plaintiff’s incurred attorney fees,” but it agreed that the trial court did not “engage in the required analysis before awarding the fees.” If the trial court determined “the parties created a sufficient factual record to review the issue, then [it] should have articulated the factual basis for this finding on the record. Otherwise, an evidentiary hearing was required to address defendant’s objections to plaintiff’s billing statement.” And even if a hearing was not warranted, it failed to make any “finding on the reasonable hourly rate customarily charged in the same locality for similar legal services. [It] also did not make an express finding on the reasonable number of hours expended in the case” or as to whether the Wood and MRPC 1.5(a) factors warranted a departure. The court denied defendant’s request for remand to a different judge. Affirmed in part, vacated in part, and remanded.

Sentencing; Authority to resentence; Judgment of sentence (JOS) validity; Whether the original sentence was “imposed” within the meaning of MCR 6.429(A); Failure to appear at the Michigan Department of Corrections (MDOC) to serve the sentence; People v Stewart; Whether defendant should have been allowed to withdraw his plea; Misconduct under MCR 6.310(B)(3)

The court held that while defendant-Sims’s original 2022 sentence was valid, it was not “imposed” due to his “failure to report to the MDOC and to be within the physical custody of the court.” Thus, the trial court did not err in resentencing him in 2024. Further, he “did not have the right to withdraw his plea because he committed misconduct” under MCR 6.310(B)(3) by absconding. He was convicted via plea of felony-firearm, second or subsequent offense, and meth possession. He was sentenced in 2022 to five years for felony-firearm and ordered to report to the MDOC one week after sentencing. The trial court then entered the JOS. But “Sims failed to appear, resulting in his subsequent arrest and resentencing before the trial court” in 2024. He was then sentenced to five years for felony-firearm and 38 months to 10 years for meth possession, to be served consecutively. He argued that the trial court did not have the authority to resentence him in 2024 because his 2022 JOS remained valid. The parties did “not dispute that the 2022 sentence was valid.” The court then considered “whether Sims’s sentence commenced after the 2022 [JOS] was entered, despite [his] failure to appear at the MDOC to serve his sentence. The trial court concluded that Sims had not commenced serving his sentence and resentencing was appropriate[.]” The court agreed with the trial court that a pre-1990 case, Stewart, “was ‘substantially similar’ to” this case, and it did not err by resentencing Sims in 2024. He “had not begun serving his 2022 sentence because he was not physically incarcerated before resentencing. Like the defendant in Stewart, Sims was ‘not in the custody of jail officials’ for the 2022 sentence, such that that he ‘had not yet commenced serving his sentence.’ . . . Sims was sentenced remotely via Zoom and given a week to get his affairs in order and report to the MDOC. [His] failure to initiate serving the 2022 sentence indicates that it was never ‘imposed’ within the meaning of MCR 6.429(A).” A trial court has “the authority to modify a valid judgment if it has not been ‘imposed.’” Affirmed.

Juror misconduct; People v Budzyn; Lay or expert opinion; MRE 701; People v Dobek; Prosecutorial misconduct; People v Fyda

The court held that juror misconduct did not create a real and substantial possibility of affecting the verdict, that any error in admitting a detective’s testimony was not outcome-determinative, and that the prosecutor’s closing argument was not improper. Defendant, a physical therapist, was tried on multiple CSC charges based on testimony from several complainants and other witnesses. The jury convicted on some counts and acquitted on others. After trial, defendant moved for a new trial based on a juror’s outside research about the timing of media coverage in an unrelated high-profile case, a detective’s testimony on redirect about whether sexual assault suspects commonly have multiple victims, and a closing remark that defense counsel was trying to “distract” the jury. The trial court held an evidentiary hearing and denied relief. On appeal, the court reiterated jurors may consider only evidence presented in open court and that where extraneous facts enter deliberations, a defendant must show exposure and that it created “a real and substantial possibility” of affecting the verdict, requiring “a direct connection between the extrinsic material and the adverse verdict.” The juror researched when a nationally televised interview aired and compared it to when a complainant came forward. But the court held that the record showed the other jurors immediately shut down that discussion, the juror testified the information did not affect the panel, and she testified she would have voted guilty even without the research. Thus, defendant failed to meet the Budzyn prejudice threshold. As to the detective’s redirect testimony, the court acknowledged the testimony was based on experience and explained that even if it should have been treated as expert testimony, the detective’s background supported qualification. Further, in any event the statement did not more probably than not affect the outcome given the length of trial and the jury’s differentiated verdicts. Finally, the court found no prosecutorial misconduct, holding the prosecutor’s “distraction” comment was a permissible response to defense themes and consistent with precedent recognizing prosecutors may characterize defense theories as distractions without suggesting defense counsel disbelieves the defendant. And because the comment was not improper, counsel was not ineffective for failing to object. Affirmed.

Plea taking; MCR 6.301; People v Smith; Ineffective assistance; People v Douglas

The court held that the trial court did not err by declining to proceed with a plea after the prosecutor’s offer expired and that defendant failed to establish ineffective assistance of counsel. On the first day of trial, the prosecutor extended a plea offer with a short deadline. Defendant vacillated, asked questions, and made statements reflecting uncertainty and continued insistence he did not commit the charged conduct. He also failed to comply with the trial court’s effort to place him under oath after he said at one point that “I guess I’m taking the plea deal.” The deadline elapsed “without defendant complying with the trial court’s instruction.” The parties proceeded to trial and the jury convicted defendant of first-degree murder and second-degree arson. On appeal, the court stated the prosecutor has “constitutional authority to determine the charge or charges a defendant will face,” and a trial court may not accept a plea to a lesser charge without the prosecutor’s consent. It further emphasized there is “no absolute right to have a guilty plea accepted” because a trial “court may reject a plea in exercise of sound judicial discretion.” The court held that defendant did not accept the plea offer before the time limit expired and identified no prejudice from reliance on the offer. It noted a prosecutor may revoke an offer before acceptance absent prejudice, and the record showed the trial court attempted to initiate plea-taking by instructing defendant to stand and raise his right hand, but defendant remained equivocal and did not proceed under oath before the offer was no longer available. The court explained that once the offer expired, the trial court could not “usurp the prosecutor’s constitutional authority” by reinstating it without consent, and it was not an abuse of discretion to end discussions and forgo a plea colloquy. Turning to the ineffective assistance claim, the court applied the plea-stage prejudice framework and held that defendant could not show the outcome of the plea process would have been different because his own indecision and failure to timely accept the offer caused the trial to proceed. The prosecutor withdrew the offer due to the deadline passing, and the trial court could not accept a plea without prosecutorial consent. Affirmed.

Other acts evidence; MRE 404(b); People v Denson; Sufficiency of the evidence for a breaking & entering (B&E) a building with intent to commit larceny conviction; People v Toole; Restitution; People v Fawaz; The Crime Victim’s Rights Act; Sentencing; Scoring of PRVs 1 & 5 & OVs 13 & 16; Within-guidelines sentence; Ineffective assistance of counsel

While the court concluded the trial court abused its discretion in admitting some of the challenged other acts evidence, it held that defendant was not entitled to appellate relief on this basis. It also held that there was sufficient evidence to support his B&E a building with intent to commit larceny conviction. Further, the trial court did not abuse its discretion in awarding restitution, and it did not err in scoring 75 points for PRV 1 and 20 points for PRV 5, or 5 points for OV 16. While “it did plainly err in scoring” 10 points for OV 13 instead of 5, defendant was not entitled to relief as his guidelines range did not change. Finally, the court rejected his ineffective assistance of counsel claims. Thus, it affirmed his conviction and his sentence, as a habitual offender, fourth offense, to 60 months to 30 years. The case arose from coin-operated laundry facilities in an apartment complex (the Parkview) being broken into. As to defendant’s challenge to the admission of other acts evidence, the court held “that the trial court did not abuse its discretion by admitting evidence of the other strikingly similar offenses pertaining to the damage to laundry and coin machines to steal money. However, the strikingly similar requirement was lacking with regard to the entry into a community room to steal a large screen television and entry into the utility room of a car wash.” While the court concluded “the trial court abused its discretion by allowing the non-strikingly similar other-acts evidence to be admitted,” it could not “conclude that the erroneous admission constituted outcome-determinative error.” The owner of the apartment complex (S) “had videotape depicting defendant in the laundry room removing coins from the dryer. Defendant admitted he was on the video; however, [he] maintained that the video, which lacked a date and time stamp, was from a 2020 incident when he broke into the Parkview’s laundry machines to support his drug habit. [He] further asserted that he entered into a plea deal that essentially exempted him from prosecution for the 2020 breaking and entering of Parkview. Yet, there was no record evidence that [S] filed a police report in 2020 alleging a break-in and theft of coins from his property, no evidence that [S] had functioning surveillance video cameras at that time, and no evidence of a plea deal that prevented the prosecution from pursuing charges arising from the criminal conduct that occurred at Parkview.”

Search & seizure; Motion to suppress; Whether a drug sniffing dog’s alert provides “probable cause” in a state that has legalized marijuana or hemp; Florida v Harris; United States v Santiago; Admission of texzt messages; FRE 404(b); Be on the Lookout (BOLO)

The court held that the district court did not err in denying defendant-Saine’s motion to suppress evidence found after a drug sniffing dog’s alert triggered a search of his truck. Under Harris, such an alert is presumptively sufficient for probable cause and the court concluded that “the fact that an officer—or a K9—could have merely smelled hemp or another legal cannabis substance does not necessarily negate probable cause.” Saine was convicted of FIP after a K9 alerted to an area of his truck and a gun was found in the truck. He first argued that the district court erred by denying his motion to suppress the gun seized from his vehicle. He claimed that Harris, the controlling case regarding canine searches providing probable cause, was inapplicable in a state such as Tennessee that has legalized hemp because dogs cannot distinguish between hemp and illegal marijuana. But the court noted that “probable cause determinations focus on probabilities, not certainties. Probable cause does not require officers to eliminate alternative innocent explanations.” Instead, it only requires “‘a probability or substantial chance of criminal activity, not an actual showing of such activity.’” The court also noted that it held in Santiago “that human officers smelling marijuana can provide probable cause for an arrest, even when certain types of cannabis are legal.” And Saine did not give it “a persuasive reason to distinguish Santiago here.” In addition, other factors supported a search of the truck, including a BOLO “indicating Saine was potentially involved in narcotics trafficking” as well as his presence in a motel known for its criminal activity. The court held that the officers had probable cause for the search. Saine also challenged the admission of text messages that revealed the presence of firearms at his home, claiming they were inadmissible under FRE 404(b). But the court found that the evidence was not admitted to prove that he possessed a firearm. The district court offered to give a jury instruction that the evidence was only to be considered as to “Saine’s ‘state of mind’ or what ‘he knew.’” Further, even if the court applied Rule 404(b), his “challenge would still fail.” Affirmed.

Divorce; Motion to change children’s domicile; MCL 722.31(4); Rains v Rains; Established custodial environment (ECE); MCL 722.27(1)(c); Modification; Sabatine v Sabatine; Statutory best-interest factors (MCL 722.23); Factors (a)-(d) & (f)-(k); MCR 3.210(C)(5); Judicial bias/request for reassignment; Attorney fees; MCR 3.206(D); Lack of an evidentiary hearing; Reasonableness

In this divorce case, the court held that plaintiff-mother established by a preponderance of the evidence that the MCL 722.31(4) factors supported changing the domicile of the parties’ children to Canada. Further, the trial court did not err in finding that the children had an ECE with plaintiff, and that the best-interest factors supported her request to move them to Canada. The court rejected defendant-father’s judicial bias claim, and upheld the trial court’s award of attorney fees to plaintiff. Reviewing the trial court’s findings on the MCL 722.31(4) factors, the court found defendant failed to show any error. Next, it rejected his argument that the trial court’s finding of an ECE with plaintiff was against the great weight of the evidence. “The evidence showed that the children looked to [her] for guidance, discipline, the necessities of life, and parental comfort. Modifying how defendant spent his parenting time with the children because of the move did not involve significant changes to” their ECE. In light of that, she only had “to prove by a preponderance of the evidence that the move was in the children’s best interests.” After reviewing the trial court’s findings on the challenged best-interest factors, the court held that she did so. Defendant failed to show that the trial court wrongly decided that factors (a), (b), (d), (f), and (k) favored plaintiff, and that factors (c) and (g) were even/neutral. It also did not err in finding that factor (i) did not apply where even the older child (age 6) was unable to express a reasonable preference. As to the trial court’s order awarding plaintiff $15,421.08 in attorney fees, the court rejected defendant’s argument that the evidence did not support the “ruling that [she] lacked the ability to pay her fees.” It also found that there was no reason to apply judicial estoppel to bar her motion, and no error in “the trial court’s decision that defendant had the ability to pay” them. Further, as he “did not properly challenge the reasonableness of the amount of fees charged by plaintiff’s attorney or the billable hours, or specifically request an evidentiary hearing, there was no need for the” trial court to conduct one. Finally, he failed to show that it erred in determining the requested fees were reasonable. Affirmed.

Custody & parenting time; Due process; Notice of the nature of the proceedings; Change of custody before an evidentiary hearing; Harmless error; Lieberman v Orr; Barretta v Zhitkov; Distinguishing O’Brien v D’Annunzio; Confidential guardian ad litem (GAL) or legal guardian ad litem (L-GAL) report; MCL 722.24(3); Children’s best interests; MCL 722.23; Factors (b), (d), (h), (j), & (k); International travel prohibition; MCL 722.27a(9); Attorney fees; MCR 3.206(D)(2)(b); MRPC 1.5(a); Wood v Detroit Auto Inter-Ins Exch; Remand to different judge; Established custodial environment (ECE)

The court found that defendant-father was deprived of due process when the trial court changed both physical and legal custody of the parties’ children before conducting an evidentiary hearing, but the error was harmless. Further, the parties were entitled to a copy of a confidential GAL or L-GAL report now that the trial court had issued its ruling. Defendant’s challenges to the trial court’s finding on several of the best-interest factors failed, and the trial court did not abuse “its discretion by prohibiting him from traveling internationally with the children without a prior court order.” Finally, plaintiff-mother was entitled to attorney fees but remand was required as to the amount. As to the change in custody without an evidentiary hearing, this case was “like Barretta, in that the interim changes in parenting time amounted to a change in the children’s” ECE. But it was unlike O’Brien in that there was no indication the trial “court’s interim orders affected its final opinion and order.” Defendant could not show prejudice. The “effect of the orders was harmless in the overall best interests analysis[.]” But the court held that the trial court erred in not releasing the confidential report to the parties after the evidentiary hearing and its ruling. Next, it concluded the trial court’s findings that factors (b), (d), (h), (j), and (k) favored plaintiff were not against the great weight of the evidence. As to attorney fees, the court rejected defendant’s assertion “there was no causal connection between [his] conduct and plaintiff’s incurred attorney fees,” but it agreed that the trial court did not “engage in the required analysis before awarding the fees.” If the trial court determined “the parties created a sufficient factual record to review the issue, then [it] should have articulated the factual basis for this finding on the record. Otherwise, an evidentiary hearing was required to address defendant’s objections to plaintiff’s billing statement.” And even if a hearing was not warranted, it failed to make any “finding on the reasonable hourly rate customarily charged in the same locality for similar legal services. [It] also did not make an express finding on the reasonable number of hours expended in the case” or as to whether the Wood and MRPC 1.5(a) factors warranted a departure. The court denied defendant’s request for remand to a different judge. Affirmed in part, vacated in part, and remanded.

Auto negligence; McGuire v Rabaut; Comparative fault; MCL 600.2959; Laier v Kitchen

The court held that the trial court erred by denying summary disposition because the record evidence established plaintiff was more than 50% at fault for the collision as a matter of law. Plaintiff drove eastbound and collided with the rear of a truck that was backing from a driveway. Defendants moved for summary disposition, arguing video evidence and expert reconstruction showed plaintiff had ample time to perceive the hazard and avoid impact. Plaintiff presented arguments about right-of-way, lighting, and potential negligence by the driver and employer, but did not submit his own deposition testimony or an affidavit explaining his actions. The trial court denied the motion as a “jury call.” On appeal, the court reiterated that once a moving party supports a summary disposition motion, the nonmoving party may not rest on allegations and must submit documentary evidence setting forth specific facts to show a genuine issue for trial. It held plaintiff failed that burden because the surveillance video showed two vehicles passed the truck without incident, plaintiff then entered the frame and made “no effort to slow down or turn to avoid colliding,” and another vehicle behind plaintiff slowed and stopped, demonstrating the hazard was visible. The court applied comparative fault principles and emphasized that a favored driver cannot proceed blindly, noting a favored driver “is not permitted to lower his head, close his eyes, and charge blindly through intersections on the theory that such is his ‘right,’” and that the duty to act arises when observations “reveal, or should reveal to the reasonably prudent man, an impending danger.” The court also relied on the driver’s deposition testimony that plaintiff apologized and admitted distraction, and on defendants’ expert’s conclusion that plaintiff’s headlights were visible for several seconds, there was no braking or steering indicated, and there was “more than sufficient time and distance” to perceive and brake normally to avoid collision. Plaintiff offered only narrative criticism of the expert and hearsay objections without countervailing admissible evidence or a competing expert affidavit, and the court held conjecture and speculation are insufficient. Finally, the court rejected plaintiff’s theory that dumpster placement made the employer negligent, concluding it was not foreseeable that placement would cause the harm where plaintiff’s inattentiveness was the operative cause. Reversed and remanded.