Benjamin Ashmore v. Kelly Ashmore ( 2020 )

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
BENJAMIN ASHMORE, UNPUBLISHED
June 4, 2020
Plaintiff-Appellant,
v Nos. 350375; 351761; 351844
Oakland Circuit Court
KELLY ASHMORE, LC No. 2014-819119-DC
Defendant-Appellee.
Before: BECKERING, P.J., and FORT HOOD and SHAPIRO, JJ.
PER CURIAM.
In Docket No. 350375, plaintiff, Benjamin Ashmore, appeals as of right the trial court’s
August 22, 2019 order requiring plaintiff to return his and defendant Kelly Ashmore’s minor child,
LA, to Michigan by 5:00 p.m. on August 25, 2019, denying plaintiff’s request for temporary relief,
and ordering that LA attend school in Michigan until further notice. In Docket No. 351761,
plaintiff appeals by leave granted1 the trial court’s August 28, 2019 order suspending his parenting
time and issuing a bench warrant for his arrest. And, in Docket No. 351844, plaintiff appeals by
leave granted2 the trial court’s October 15, 2019 order denying his motion for reconsideration. We
affirm the trial court’s October 15, 2019 order in Docket No. 351844, vacate the trial court’s
August 22, 2019 order in Docket No. 350375 to the extent that it effectively concluded there was
no proper cause to revisit custody, and vacate that portion of its August 28, 2019 order in Docket
No. 351761 suspending plaintiff’s parenting time, and we remand for further proceedings.
1
Benjamin Ashmore v Kelly Ashmore, unpublished order of the Court of Appeals, entered January
10, 2020 (Docket No. 351761).
2
Benjamin Ashmore v Kelly Ashmore, unpublished order of the Court of Appeals, entered January
10, 2020 (Docket No. 351844).
-1-
I. FACTS AND PROCEDURAL HISTORY
There is a long procedural history between the parties. This custody case involves
plaintiff’s and defendant’s minor daughter, LA, and whether she would attend high school and live
with plaintiff in New Jersey, or stay with defendant in Michigan.
On June 30, 2011, a judgment of divorce was entered in a New York court. The judgment
of divorce awarded defendant sole legal and physical custody of the parties’ three children, granted
plaintiff supervised parenting time, and allowed defendant to move to Michigan with the children.
Defendant and her three children moved to Michigan, and plaintiff moved to New Jersey. After
contentious proceedings and attempts by plaintiff to obtain custody of the children, the parties
entered into a May 26, 2015 consent order3. The parties were awarded joint legal custody of the
children, with defendant to have primary custody of LA and the couple’s other daughter, while
plaintiff had primary custody of the couple’s son. The May 26, 2015 consent order provided that
defendant “shall have primary residence for school purposes of . . . [LA]” but also contained an
“8th Grade Clause” regarding LA, which stated:
IT IS FURTHER ORDERED that neither Plaintiff nor Defendant shall raise the
issue of [LA’s] preference regarding her primary residence before the second
semester of her 8th grade year. If, at that time, she is still expressing a preference
to live with Plaintiff, the parties shall mutually discuss [LA’s] request, with Plaintiff
encouraging [LA] to maintain her primary residence with Defendant. If Plaintiff
and Defendant cannot mutually agree, they shall consult with, and seek a
recommendation from [LA’s] therapist on this issue. If the parties are still unable
to agree, they shall seek resolution of the issue from the Friend of the Court and the
parties agree to accept conclusively the recommendation of the Friend of the Court
on this issue.
In the years after the 2015 consent order, plaintiff filed several motions to modify custody
and parenting time. At issue here is plaintiff’s May 8, 2019 motion, in which he sought to modify
the consent order on the basis of the 8th-grade clause because LA allegedly expressed a desire to
move to New Jersey to attend high school. After defendant objected to plaintiff’s motion, and a
reply from plaintiff discussing, in relevant part, LA’s alleged decline in mental health, the trial
court entered an order on May 23, 2019, stating, in relevant part:
IT IS HEREBY ORDERED that [the] parties follow through with the plan
outlined in the 5/26/15 Order, beginning with mutual discussion, then getting a
recommendation from [LA’s] therapist regarding [LA] moving to NJ to attend
school there in the fall—parties to sign releases for therapist to speak with CPTS
Kathleen Doan, and then submitting the matter to the Friend of the Court for [a]
hearing.
3
The parties and the trial court signed the order on May 21, 2015, but it was entered into the
register of actions on May 26, 2015.
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Less than two months later, on July 8, 2019, Friend of the Court Referee Evanne L. Dietz
issued a recommendation related to plaintiff’s motion to modify the consent order. Referee Dietz
noted that although the case was on the trial court’s docket on May 22, 2019, “it was discovered
that the parties had not yet followed the terms of [the May 2015 consent order] and were instructed
to do that before further action could be taken on Plaintiff’s Motion.” Referee Dietz also noted
that before his May 8, 2019 motion, plaintiff filed two motions to modify custody, contrary to the
provision in the consent order stating that “neither Plaintiff nor Defendant shall raise the issue of
[LA’s] preference regarding her primary residence before the second semester of her 8th grade
year.” With respect to plaintiff’s May 8, 2019 motion, Referee Dietz found that plaintiff had not
only “fail[ed] to abide by the terms of the order up to this point,” but he also “had not followed the
prescribed steps contained within the [May 2015 consent] order” when he filed his May 8, 2019
motion. After quoting the trial court’s May 23, 2019 order, Referee Dietz observed that “[w]hile
it appears that the parties have had some discussion and did have a meeting with [LA’s] therapist,
[Dr. Jennifer Gramzow,] who did call to speak with CPTS Kathleen Doan,” there still had not been
a “legal determination that the current custody order, or established custodial environment, should
be changed.” Referee Dietz asserted that the question of whether proper cause or a change of
circumstances existed had to be answered for the trial court to then determine “whether an
established custodial environment exists before it can consider modifying an existing custody
order.” Referee Dietz explained that, other than the parties’ agreement to discuss LA’s relocation
to New Jersey, “there appear[ed] to be no legal basis to modify custody at th[at] time.”
On August 9, 2019, plaintiff sent by facsimile to the Friend of the Court and by mail to the
trial court an affidavit in support of his May 8, 2019 motion, explaining the circumstances of the
May 23, 2019 order, objecting to Referee Dietz’s recommendation, and seeking to disqualify
Referee Dietz. On August 16, 2019, the trial court issued a memorandum explaining it was “the
responsibility of any moving party to properly file a motion to place matters, via motion, notice of
hearing, and a praecipe or repraecipe if appropriate, on the court’s calendar.” The trial court
continued, “But for court staff conducting status checks on files, the court would not have known
of this filing.” The memorandum then stated, “Until otherwise ordered by the court, the minor
child [LA] shall begin school in Michigan.”
On August 19, 2019, defendant filed a request for an emergency hearing to adopt Referee
Dietz’s recommendation and entry of an order enforcing the return of LA to defendant before
school started on August 27, 2019. Defendant was “fearful” that unless an emergency hearing was
held and an order for LA’s immediate return was entered, plaintiff would not return LA to
defendant. Defendant contended that plaintiff continued to disobey court orders and had
encouraged LA to do the same. That same day, the trial court entered an order regarding
defendant’s emergency motion. The trial court ordered that the clerk “place the matter on [the trial
court’s] August 21, 2019 docket” and ordered the parties to appear on that date for further
proceedings.
Plaintiff filed a response to defendant’s emergency motion requesting denial of defendant’s
motion or, at least to appear by telephone or Judge Online or adjourn the hearing, and requesting
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a temporary order allowing LA to remain New Jersey. In an August 22, 2019 order4, the trial court
granted plaintiff’s request to adjourn the August 21, 2019 hearing and ordered the parties to appear
on August 28, 2019, instead. Moreover, the trial court ordered that plaintiff “shall produce the
minor child [LA] to mother [defendant], in Michigan, no later than 5pm on Sunday, August 25,
2019,” and that LA “shall attend school, in Michigan, until further order.” The trial court denied
plaintiff’s request for a temporary order allowing LA to remain in New Jersey.
After plaintiff failed to return LA to defendant in violation of the trial court’s August 22,
2019 order, the trial court entered an order appointing counsel to represent plaintiff at the August
28, 2019 motion hearing. After the August 28, 2019 hearing, the trial court entered an order
suspending plaintiff’s parenting time under MCR 3.207(B)(1) until further order of the court. The
trial court also issued a bench warrant, dated August 28, 2019, to secure plaintiff’s appearance.
Shortly before the trial court entered its August 28, 2019 order, plaintiff filed an appeal
from the trial court’s August 22, 2019 order. This Court dismissed plaintiff’s appeal for lack of
jurisdiction on the basis that the order at issue was not a final order.5 Plaintiff filed a motion for
reconsideration, which this Court granted, vacating the dismissal order and reinstating plaintiff’s
claim of appeal.6 This Court acknowledged that the “August 22, 2019, order, which effectively
denied plaintiff appellant’s motion to change domicile so that the minor child could attend high
school in New Jersey, fits the definition of final order contained in MCR 7.202(6)(a)(iii).”
Plaintiff filed a motion for reconsideration of the trial court’s August 28, 2019 order,
arguing that the order should be vacated, and the bench warrant cancelled, because defendant
agreed that LA should attend school in New Jersey. Plaintiff argued that defendant filed her
emergency motion as a smokescreen under which defendant could hide and “effectively present to
[LA] that it was the Court, and not the mother, who had decided and determined that [LA] should
remain in Michigan.” Plaintiff asserted there was “no other reasonable explanation” for the
emergency motion, or defendant’s refusal to file an answer with the Court of Appeals or to
communicate with plaintiff regarding LA’s return to Michigan. Plaintiff argued there was no good
cause to suspend his parenting time, order LA to return to Michigan without a hearing, or issue a
bench warrant. Plaintiff also argued that it was palpable error for the trial court to treat plaintiff’s
failure to abide by the August 22, 2019 order as contempt. On October 15, 2019, the trial court
entered an order denying plaintiff’s motion for reconsideration.
Plaintiff filed delayed applications for leave to appeal from the trial court’s August 28,
2019 and October 15, 2019 orders. This Court granted plaintiff’s delayed applications for leave
4
The trial court signed the order on August 20, 2019, but it was entered into the register of actions
on August 22, 2019.
5
Benjamin Ashmore v Kelly Ashmore, unpublished order of the Court of Appeals, entered
September 3, 2019 (Docket No. 350375).
6
Benjamin Ashmore v Kelly Ashmore, unpublished order of the Court of Appeals, issued
September 17, 2019 (Docket No. 350375).
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to appeal in Docket Nos. 351761 and 351844, limiting the appeal “to the issues raised in the
application and supporting brief,” and, on this Court’s own motion, consolidated Dockets Nos.
350375, 351761, and 351844.7
II. MOTION TO MODIFY CONSENT ORDER
Plaintiff argues that the trial court erred by entering the August 22, 2019 order because it
effectively denied his motion to modify the consent order pursuant to the 8th grade clause without
first having a hearing and addressing its merits. For the reasons set forth below, we agree that
error occurred.
Under MCL 722.28, this Court must affirm a custody order on appeal “unless the circuit
court’s findings were against the great weight of the evidence, the circuit court committed a
palpable abuse of discretion, or the circuit court made a clear legal error on a major issue.” Pierron
v Pierron, 282 Mich. App. 222, 242; 765 NW2d 345 (2009) (Pierron I), aff’d by Pierron v Pierron,
486 Mich. 81; 782 NW2d 480 (2010) (Pierron II) (citations omitted). “The great weight of the
evidence standard applies to all findings of fact; the circuit court’s findings should be affirmed
unless the evidence clearly preponderates in the opposite direction.” Pierron I, 282 Mich. App. at
242-243 (citations omitted). In a child custody proceeding, an abuse of discretion occurs when a
trial court’s decision “is so palpably and grossly violative of fact and logic that it evidences a
perversity of will, a defiance of judgment, or the exercise of passion or bias.” Butler v Simmons-
Butler, 308 Mich. App. 195, 201; 863 NW2d 677 (2014) (citation and quotation marks omitted).
“A circuit court commits legal error ‘when it incorrectly chooses, interprets, or applies the law.’ ”
Pierron I, 282 Mich. App. at 243 (citation omitted).
The Child Custody Act of 1970 (CCA), MCL 722.21 et seq., outlines procedures for
modifying child custody orders. MCL 722.27(1)(c) states:
If a child dispute has been submitted to the circuit court as an original action under
this act or has arisen incidentally from another action in the circuit court or an order
or judgment of the circuit court, for the best interests of the child the court may do
1 or more of the following:
* * *
(c) Subject to subsection (3), modify or amend its previous judgments or orders for
proper cause shown or because a change of circumstances until the child reaches
18 years of age . . . . The court shall not modify or amend its previous judgments
or orders or issue a new order so as to change the established custodial environment
of a child unless there is presented clear and convincing evidence that it is in the
best interest of the child.
7
Benjamin Ashmore v Kelly Ashmore, unpublished order of the Court of Appeals, entered January
10, 2020 (Docket Nos. 350375, 351761, and 351844).
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“Under the CCA, if a child custody dispute has arisen, the circuit court may, in the best
interests of the child, modify its previous orders or judgments ‘for proper cause shown or because
of change of circumstances . . . .’ ” In re AP, 283 Mich. App. 574, 600; 770 NW2d 403 (2009),
quoting Vodvarka v Grasmeyer, 259 Mich. App. 499, 508-509; 675 NW2d 847 (2003). “Thus, the
party seeking a change of custody must first establish proper cause or change of circumstances by
a preponderance of the evidence.” In re AP, 283 Mich. App. at 600. To establish proper cause
sufficient to justify revisiting custody, there must be appropriate grounds that have, or could have,
a significant impact on the child’s life such that a reevaluation of custody should be made.
Vodvarka, 259 Mich. App. at 511. To establish a change of circumstances sufficient to justify
revisiting custody, there must be a change in conditions related to custody since entry of the last
custody order that has had, or could have, a significant impact on the child’s well-being. Corporan
v Henton, 282 Mich. App. 599, 604; 766 NW2d 903 (2009).
The “8th grade clause” of the parties’ May 2015 consent agreement required the parties to
do three things once LA reached the second semester of 8th grade and still expressed a desire to
live with plaintiff and attend school in New Jersey. They had to mutually discuss LA’s request,
with plaintiff encouraging LA to keep her primary residence with defendant. If the parties could
not agree, they had to seek and obtain a recommendation from LA’s therapist on the issue. If the
parties still could not agree, the May 2015 consent agreement required them to “seek resolution of
the issue from the Friend of the Court[.]” Further, the parties agreed “to accept conclusively the
recommendation of the Friend of the Court on this issue.” The court’s May 23, 2019 order stated
that the parties had not yet fully complied with these requirements, and ordered them to do so.
In her July 8, 2019 recommendation, Referee Dietz acknowledged the steps the parties had
eventually taken in accord with the 8th grade clause requirements: mutual discussions had been
held and the parents had met with LA’s therapist, who spoke with “CPTS Kathleen Doan.”
Nevertheless, rather than address its recommendation in light of the child’s preference and the
therapist’s recommendation for LA, the referee simply concluded that, because there had not yet
been a legal determination that proper cause or a change in circumstances existed, no legal basis
existed to revisit the current custody order. In our view, however, the parties’ substantial
compliance with the terms of the 8th grade clause, which led to a continued impasse, constituted
proper cause to revisit the custody issue.8
8
The record suggests that neither party complied perfectly with their agreement. As the referee
pointed out, plaintiff filed two motions to change custody prior to the second semester of LA’s 8th
grade year, which suggests that he did not fulfill his obligation to urge LA to keep her primary
residence with defendant. In addition, there are allegations that defendant’s friends or family may
have informed LA prematurely about the 8th grade clause. The consent agreement did not contain
any provisions for what to do in such circumstances. Despite their imperfect compliance, the
record shows that defendant agreed with plaintiff that they could not resolve the issue on their own
and should follow the path established in their 2015 consent agreement. In a December 11, 2018
e-mail attached to plaintiff’s May 8, 2019 motion, defendant recommended that plaintiff “go to
the [FOC] and call [LA’s] counselor if you haven’t talked to her in a while. See what she thinks.
This was all in our order to do so let’s do them, get them resolved and do this as peaceful as
-6-
Implicit in the May 2015 agreement between the parties was that if LA still wanted to move
to New Jersey by the second semester of her 8th grade year, and the parties followed certain
agreed-upon steps but still could not agree as to LA’s primary residence, proper cause would exist
to revisit custody. The parties would submit the issue to the Friend of the Court for a best-interest
determination and accept the Friend of the Court’s recommendation. Thus, to the extent the referee
indicated that the parties had followed the path they had laid out in their agreement, proper cause
existed to warrant revisiting the custody issue. Apparently laboring under the misapprehension
that the court’s May 23, 2019 order instructed the Friend of the Court to hold a hearing, the parties
failed to take steps to “submit[] the matter to the Friend of the Court for [a] hearing” after the May
23, 2019 order. However, plaintiff’s May 8, 2019 motion to modify custody was still pending,
thus giving the court the opportunity to refer the issue of LA’s residence to the Friend of the Court
in accordance with the parties’ consent agreement.9 Given these circumstances, we conclude that
the trial court erred. We vacate the August 22, 2019 order to the extent that it effectively denied
plaintiff’s May 8, 2019 motion on the basis that no proper cause existed to revisit the custody issue,
and we remand this matter to the trial court for referral to the Friend of the Court for further
proceedings in accordance with the parties’ May 2015 consent agreement.
Plaintiff also argues that his right to due process was violated when the Friend of the Court
provided advance notice to defendant but did not mail to him Referee Dietz’s recommendation
and did not call to advise him about it until 10 days after it had been docketed, and when the trial
court returned letters he wrote to the court apparently without reviewing them. We disagree.
Due process essentially denotes fundamental fairness. In re Beck, 287 Mich. App. 400, 401;
788 NW2d 697 (2010), aff’d on other grounds 488 Mich. 6 (2010). Procedural due process requires
“notice and a meaningful opportunity to be heard before an impartial decision maker.” Id. Plaintiff
acknowledges that he was notified of Referee Dietz’s recommendation on July 20, 2019, and that
he received it on July 29, 2019. Plaintiff also admits that, despite not checking his voicemail for
over a month, he received a voicemail from CPTS Kathleen Doan informing him that Referee
Dietz’s recommendation had been mailed to him on July 8, 2019. Plaintiff has not established that
his due process rights were violated under these circumstances.
As for the letters plaintiff sent to the trial court, plaintiff attached to his brief on appeal a
July 29, 2019 letter from the trial court indicating that it had received his letters but could not
“respond to, or consider” them because they were “ex parte communications” and that he had to
“follow the proper procedures” if he “wish[ed] to bring a matter to the Court’s attention . . . .”
Given the dangers inherent in ex parte communications, including “depriv[ing] the absent party of
the right to respond and be heard,” “suggest[ing] bias or partiality on the part of the judge,” the
“risk of an erroneous ruling on the law or facts” because of one-sided argumentation or incomplete
possible.” She expressed similar sentiments in an April 2019 e-mail, shortly before plaintiff filed
his motion to modify custody.
9
In his May 8, 2019 motion, plaintiff asked the trial court to decide the issue instead of the Friend
of the Court. However, according to the terms of the May 2015 consent agreement, which plaintiff
asked the trial court to enforce, the parties were required to submit the issue to the Friend of the
Court, and they agreed to be bound by its conclusion.
-7-
or inaccurate information, and an “invitation to improper influence if not outright corruption,” the
trial court did not err or deprive plaintiff of due process when it did not review plaintiff’s letters.
Greivance Administrator v Lopatin, 462 Mich. 235, 262-263; 612 NW2d 120 (2000) (quotation
marks and citation omitted).
Plaintiff also claims that he was denied due process when the trial court refused to allow
him to appear by Judge Online for the emergency hearing scheduled for August 21, 2019.
However, in plaintiff’s response to defendant’s emergency motion, plaintiff requested to either
appear by telephone or Judge Online or to adjourn the emergency hearing. The trial court
adjourned the hearing until August 28, 2019. Thus, plaintiff’s claim that the trial court denied him
due process is without merit because the trial court granted his request by postponing the
emergency hearing until August 28, 2019. To the extent plaintiff claims he was denied due process
related to the August 28, 2019 hearing, that claim is without merit. According to the trial court’s
August 28, 2019 order, plaintiff was in the courthouse and ready to attend and participate in the
hearing scheduled for that day. However, before appearing in front of Referee Dietz and going on
the record, plaintiff left the courthouse. As a result, any lost opportunity to participate in the
August 28, 2019 hearing was the result of plaintiff’s conduct, not the trial court’s.
III. PARENTING TIME AND SERVICE ON THIRD PARTIES
Plaintiff argues that the trial court erred when it entered the August 28, 2019 order and
suspended his parenting time. Plaintiff fails to cite supporting authority and, therefore, has
abandoned the issue. Houghton ex rel Johnson v Keller, 256 Mich. App. 336, 339-340; 662 NW2d
854 (2003) (stating that failure to cite supporting authority and properly address the merits of an
assertion of error constitutes abandonment of the issues on appeal). However, “this Court may
overlook preservation requirements if the failure to consider the issue would result in manifest
injustice . . . .” Smith v Foerster-Bolser Constr, Inc, 269 Mich. App. 424, 427; 711 NW2d 421
(2006). Because this issue involves parenting time with a minor child, and failure of the Court to
consider whether the trial court erred by suspending plaintiff’s parenting time may result in
manifest injustice, this Court will address the merits of the issue.
The trial court erred by suspending plaintiff’s parenting time. The trial court explained
that it was suspending plaintiff’s parenting time because of his “conduct at court” and “his failure
to comply with multiple court orders to return the minor child to Michigan so that she may begin
school . . . .” The trial court also explained that, under MCR 3.207(B)(1), it found that the “specific
facts set forth in the pleading demonstrate ‘that irreparable injury, loss, or damage [would] result
from the delay required to effect notice, or that notice itself will precipitate adverse action before
an order can be issued.’ ”10
10
Plaintiff argues that the trial court did not identify “the pleading” that demonstrated the potential
irreparable injury, loss, or damage that might occur from delayed notice, or notice itself. While
the trial court only stated “the pleading,” it is clear from the face of the order that defendant’s
August 19, 2019 emergency motion was the subject of the August 28, 2019 hearing. Specifically,
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“Parenting time shall be granted in accordance with the best interests of the child. It is
presumed to be in the best interests of a child for the child to have a strong relationship with both
of his or her parents.” MCL 722.27a(1). “A child has a right to parenting time with a parent unless
it is shown on the record by clear and convincing evidence that it would endanger the child’s
physical, mental, or emotional health.” MCL 722.27a(3). Therefore, before a trial court can enter
an order suspending parenting time, the trial court must hold an evidentiary hearing and find by
clear and convincing evidence that continuation of parenting time would endanger the child’s
physical, mental, or emotional health. Rozek v Rozek, 203 Mich. App. 193, 194-195; 511 NW2d
693 (1993).
“Orders concerning parenting time must be affirmed on appeal unless the trial court’s
findings were against the great weight of the evidence, the court committed a palpable abuse of
discretion, or the court made a clear legal error on a major issue.” Shade v Wright, 291 Mich. App.
17, 20-21; 805 NW2d 1 (2010). “[A] court speaks through its written orders and judgments, not
through its oral pronouncements.” In re Contempt of Henry, 282 Mich. App. 656, 678; 765 NW2d
44 (2009). In the present case, the trial court’s August 28, 2019 order suspending plaintiff’s
parenting time does not discuss whether it found by clear and convincing evidence that the
continuation of plaintiff’s parenting time would endanger LA’s physical, mental, or emotional
health. Moreover, the trial court entered the order without holding an evidentiary hearing to
determine whether suspension of plaintiff’s parenting time was warranted. The trial court’s
decision to enter the August 28, 2019 order without holding an evidentiary hearing and making
findings on the basis of clear and convincing evidence was plain error. Rozek, 203 Mich. App. at
194-195; Shade, 291 Mich. App. at 20-21.
Moreover, the trial court had no authority to suspend parenting time under MCL
712A.13a(13), which states that suspension of parenting time is permitted only when parenting
time imposes a risk of harm to the child. The trial court made no findings of harm and instead
based its suspension of plaintiff’s parenting time on plaintiff’s “conduct at court” (apparently
leaving the courthouse without meeting with Referee Dietz or going on the record) and his failure
to comply with court orders to return LA to Michigan. The trial court’s reasons for suspending
parenting time did not justify the suspension under MCL 712A.13a(13). To the extent the trial
court’s order relies on allegations in defendant’s August 19, 2019 emergency motion to justify its
suspension of plaintiff’s parenting time, defendant’s motion did not allege that LA was at risk of
any harm by virtue of residing with plaintiff in New Jersey. In fact, defendant conceded that LA
had “a desire to live in New Jersey . . . .” And, to the extent any of defendant’s allegations in her
emergency motion can be construed as presenting a risk of harm to LA, they remain only
allegations and do not rise to the level of clear and convincing evidence necessary to suspend
parenting time. Rozek, 203 Mich. App. at 194-195. Further, plaintiff was prejudiced because his
parenting time with his child was suspended without a hearing. Therefore, the August 28, 2019
order suspending plaintiff’s parenting time is vacated and we remand to the trial court for the
proper procedure to be followed. “On remand, the trial court ‘should consider up-to-date
the August 28, 2019 order states: “On August 28, 2019, the parties appeared on Defendant
[mother’s] adjourned emergency motion per the court’s August 20, 2019 order.”
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information’ and ‘any other changes in circumstances arising since the’ ” August 28, 2019 order.
Kessler v Kessler, 295 Mich. App. 54, 63; 811 NW2d 39 (2011).
Plaintiff also argues that the trial court erred by directing the court clerk to serve the August
28, 2019 order and bench warrant on several third parties, including plaintiff’s appointed attorney,
law school, and employers. Plaintiff provides no supporting authority and, as a result, he has
abandoned the issue. Because this Court is not convinced that manifest injustice would result by
our failure to consider this issue, we decline to do so. Houghton, 256 Mich. App. at 339-340.
IV. MOTION FOR RECONSIDERATION
Plaintiff next argues that the trial court erred when it denied his motion for reconsideration
as untimely. We disagree.
MCR 2.119(F)(1) states that a motion for reconsideration “of the decision on a motion must
be served and filed not later than 21 days after entry of an order deciding the motion.” Mailing a
document does not constitute “filing” a document. Hollis v Zabowski, 101 Mich. App. 456, 458;
300 NW2d 597 (1980) (citations omitted). A document is not considered filed until it is delivered
to the clerk of the court or to the judge. MCR 1.109(C); Biafore v Baker, 119 Mich. App. 667, 669;
326 NW2d 598 (1982), citing People v Madigan, 223 Mich. 86, 89; 193 N.W. 806 (1923) (“[A]
paper or document is filed when it is delivered to and received by the proper officer to be kept on
file, and the endorsement of the officer with whom it is filed is but evidence of the time of filing.”)
The date next to the signature block at the end of plaintiff’s motion for reconsideration is
September 17, 2019. However, the record reflects that plaintiff’s motion was not delivered to the
clerk of the court until September 23, 2019. The stamp on the front of the motion indicates it was
received for filing at 4:05 p.m. on September 23, 2019. Plaintiff requested reconsideration of the
trial court’s August 28, 2019 order suspending his parenting time and issuing a bench warrant for
his arrest. Under MCR 2.119(F)(1), plaintiff had to file the motion within 21 days of the entry of
the August 28, 2019 order. Thus, plaintiff’s motion should have been filed on or before September
18, 2019, which was one day after plaintiff signed it. Because plaintiff’s motion for
reconsideration was not delivered to the clerk of the court until September 23, 2019, despite
allegedly being mailed on September 17, 2019, the trial court did not err in concluding that
plaintiff’s motion was untimely.
V. REQUEST FOR REFERRAL TO JUDICIAL TENURE COMMISSION AND
REASSIGNMENT TO A DIFFERENT JUDGE ON REMAND
Next, plaintiff argues that the trial judge’s conduct warrants referral to the Judicial Tenure
Commission. We disagree.
A party must raise a claim of judicial misconduct below to preserve the issue for appellate
review. MCR 2.003; Evans & Luptak v Obolensky, 194 Mich. App. 708, 715; 487 NW2d 521
(1992). Plaintiff did not raise a claim of judicial bias below. Therefore, the issue is unpreserved
and our review is for plain error affecting substantial rights. Rivette v Rose-Molina, 278 Mich. App.
327, 328; 750 NW2d 603 (2008).
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“A trial judge is presumed to be impartial and the party who asserts partiality has a heavy
burden of overcoming that presumption.” In re MKK, 286 Mich. App. 546, 566; 781 NW2d 132
(2009). To establish judicial bias, the party asserting partiality must show that “the trial court
harbored deep-seated favoritism or antagonism . . . that would make fair judgment impossible.”
Berger v Berger, 277 Mich. App. 700, 714; 747 NW2d 336 (2008). Establishing judicial bias or
prejudice “usually requires that the source of the bias be in events or information outside the
judicial proceedings.” Id. A trial judge’s unethical conduct may warrant referral to the Judicial
Tenure Commission. See People v Ellis, 468 Mich. 25, 26-28; 658 NW2d 142 (2003).
Review of the record does not reveal that the trial judge’s conduct was unethical or
demonstrated a “deep-seated . . . antagonism” toward plaintiff. Plaintiff claims that it was
improper for the judge to serve LA’s school, and his law school and employers, when he had a
court-appointed attorney. However, the trial court could have reasonably concluded, even if
potentially erroneously, that service on LA’s school and on plaintiff’s law school and employers,
all in New Jersey where plaintiff lived, was more likely to ensure plaintiff received the order and
bench warrant than service on his Michigan court-appointed attorney. Therefore, this Court cannot
conclude that the judge’s conduct warrants referral to the Judicial Tenure Commission.
Plaintiff also argues that the trial judge’s conduct warrants reassignment to another judge
should this Court decide to remand. We disagree.
Generally, “ ‘[i]n reviewing a motion to disqualify a judge, this Court reviews the trial
court’s findings of fact for an abuse of discretion and reviews the court’s application of those facts
to the relevant law de novo.’ ” In re Contempt of Henry, 282 Mich. App. at 679 (citation omitted).
Because plaintiff failed to raise the issue of judicial bias in the trial court by filing a motion to
disqualify the trial judge, the issue is unpreserved. Therefore, this Court reviews the issue for plain
error affecting defendant’s substantial rights. Rivette, 278 Mich. App. at 328.
In In re Bibi Guardianship, 315 Mich. App. 323, 337; 890 NW2d 387 (2016), this Court
observed:
The general concern when deciding whether to remand to a different trial judge is
whether the appearance of justice will be better served if another judge presides
over the case. In deciding whether to remand to a different judge, this Court
considers whether the original judge would have difficulty in putting aside
previously expressed views or findings, whether reassignment is advisable to
preserve the appearance of justice, and whether reassignment will not entail
excessive waste or duplication. [Quotation marks and citations omitted.]
“The mere fact that a judge ruled against a litigant, even if the rulings are later determined
to be erroneous, is not sufficient to require . . . reassignment.” In re Contempt of Henry, 282 Mich
App at 680. This is true even if the trial court “vigorously and consistently expressed” the
erroneous rulings. Ireland v Smith, 214 Mich. App. 235, 249; 542 NW2d 344 (1995), aff’d as mod
on other grounds 451 Mich. 457 (1996), quoting Wayne Co Prosecutor v Parole Bd, 210 Mich. App.
148, 155; 532 NW2d 899 (1995). In fact, “judicial rulings, in and of themselves, almost never
constitute a valid basis for a motion alleging bias, unless the judicial opinion displays a deep-seated
favoritism or antagonism that would make fair judgment impossible and overcomes a heavy
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presumption of judicial impartiality.” Armstrong v Ypsilanti Charter Twp, 248 Mich. App. 573,
597; 640 NW2d 321 (2001) (quotation marks and citations omitted).
Plaintiff has failed to establish that remand to a different judge is necessary. Plaintiff
claims that by failing to hold any hearings and determining that LA should go to school in
Michigan, the trial court judge prejudged the case and would have “great difficulty” putting aside
her views if remanded for further proceedings. However, the mere fact that the judge ruled against
plaintiff and ordered that LA was to attend school in Michigan is not sufficient to require
reassignment. In re Contempt of Henry, 282 Mich. App. at 680. Because plaintiff has failed to
show that the judge’s actions “displayed a deep-seated . . . antagonism that would make fair
judgment impossible” and has not overcome the presumption of judicial impartiality, plaintiff’s
request for reassignment is denied. Armstrong, 248 Mich. App. at 597.
VI. CONCLUSION
We vacate the trial court’s August 22, 2019 order in Docket No. 350375 to the extent that
it effectively denied plaintiff’s May 8, 2019 motion on the basis that no proper cause existed,
despite the parties’ 8th grade clause in the May 2015 consent agreement, and remand this matter
to the trial court for referral to the Friend of the Court for further proceedings in accordance with
the consent agreement. We also vacate that portion of the trial court’s order suspending plaintiff’s
parenting time in Docket No 351761. We affirm the trial court’s October 15, 2019 order in Docket
No. 351844. We do not retain jurisdiction.
/s/ Jane M. Beckering
/s/ Karen M. Fort Hood
/s/ Douglas B. Shapiro
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