Child custody; De novo hearing on timely filed objections to a referee’s recommendations; MCL 552.507(4); “Shall”; MCR 3.215(F); McGregor v Jones

Holding that the trial court clearly erred in not conducting the required de novo hearing, the court vacated the order denying defendant-father’s objection to the referee recommendation and remanded for a de novo hearing pursuant to MCR 3.215(F). Defendant “sought a change in legal custody and parenting time for the parties’ three” children. After a hearing before a family court referee, “the referee issued findings and recommended denying the motion. Defendant filed a timely objection to the referee’s findings and recommendation, which the trial court denied without holding a hearing de novo.” The court held that “the trial court committed clear legal error by resolving defendant’s objection on the basis of the record without giving [him] the opportunity to present evidence at a live hearing[.]” The court noted that “defendant did not request a hearing de novo in the trial court; rather, he requested a de novo ‘review.’ A party can obtain a record-based review as one type of de novo hearing.” However, under MCR 3.215(F)(2), the trial court is required to “provide the parties with an opportunity to ‘present live evidence at the judicial hearing’ which did not occur here.” Further, the court recognized in McGregor “that trial courts are not permitted to resolve an objection to the referee’s recommendation ‘on the basis of the record alone without providing the parties some opportunity to supplement that record at the hearing if they wish to do so.’” That is what occurred here.