e-Journal Summary

e-Journal Number : 72519
Opinion Date : 02/27/2020
e-Journal Date : 03/18/2020
Court : Michigan Court of Appeals
Case Name : O'Brien v. D'Annunzio
Practice Area(s) : Family Law
Judge(s) : Per Curiam – Murray and Sawyer; Concurrence – Murray; Dissent – Gleicher
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Custody; The Child Custody Act (CCA) (MCL 722.21 et seq.); MCL 722.27(1)(c); Lieberman v. Orr; Credibility; Beason v. Beason; Threshold requirements for a party seeking a custody change; Vodvarka v. Grasmeyer; Necessity of an evidentiary hearing before custody can be modified; Grew v. Knox; Harmless error; Fletcher v. Fletcher; Kubicki v. Sharpe; Established custodial environment;Yachcik v. Yachcik; Children’s best interests; MCL 722.25(1); Pierron v. Pierron; Findings on the statutory factors; Factors (a), (j), & (l); Consideration of each child’s individual best interests; Foskett v. Foskett; Reliance on a referee recommendation; Admissibility of evidence supporting the trial court’s rulings; Ex parte communications; Consideration of a Friend of the Court (FOC) report; Harvey v. Harvey; Order enjoining an FOC employee & the children’s counselor from discussing contents of their communication to counsel or the parties; The Friend of the Court Act (MCL 552.501 et seq.); MCL 552.507a(1); MCR 3.210(C)(6); In camera interview of the children; Factor (i); Molloy v. Molloy; Discovery; Denial of requests to compel production; Cabrera v. Ekema; MCR 3.218(B)(1) & (A)(1); Expert testimony; MRE 702; Alleged judicial bias; Parenting-time; MCL 722.27a(1) & (3); McRoberts v. Ferguson; Luna v. Regnier; Request for reassignment on remand; Cassidy v. Cassidy; Bayati v. Bayati


The court concluded that the trial court’s errors were harmless, rejected defendant-mother's claims of judicial bias, and held that the trial court did not abuse its discretion in granting plaintiff-father sole legal and physical custody. It also found that the trial court did not abuse its discretion in suspending her parenting time under MCL 722.27a(3). Finally, it declined her request to order reassignment of the case on remand, noting that it found no error requiring remand and that it would not have been necessary in this case. Thus, the court affirmed the order granting plaintiff sole legal and physical custody of the parties’ children, and providing defendant with no parenting time, subject to periodic review to determine whether reinstituting it would be in the children’s best interests. The court agreed with defendant that the trial court erred by failing to comply with procedural requirements of the CCA “before granting plaintiff full-time parenting time in” 11/17. It also agreed that “the trial court committed clear legal error by precluding disclosure of the” recommendation as to continued reunification efforts to the parties, and in denying defendant’s motion to compel production of “the raw test data from the psychological evaluations of the parties and children.” However, it found these errors harmless in this case. As to the custody ruling, the court concluded that “the trial court’s poor view of defendant’s credibility appears well grounded.” It disagreed with her contention that “the trial court’s perception went against the great weight of the evidence because her testimony was corroborated by text messages and over 40 exhibits . . . .” Although many of the text messages corroborated assertions she made at the hearings, they concerned essentially uncontested matters. While she might disagree with the trial court’s findings, “the trial court found from the totality of the evidence that plaintiff’s actions were generally appropriate and in” the children’s best interests.

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