Opinion
361374
05-17-2022
Bradley J Lemmen v. Jennifer A Lemmen
LC No. 19-054008-DM
Amy Ronayne Krause Michael F. Gadola Judges
ORDER
BROCK A. SWARTZLE PRESIDING JUDGE
The motion for immediate consideration is GRANTED.
The motion for stay pending appeal is GRANTED, and further proceedings are STAYED pending resolution of this appeal or further order of this Court. This Court orders defendant to procure a transcript of the August 5, 2021, October 20, 2021, December 27, 2021, January 10, 2022, April 14, 2022, and May 10, 2022 hearings on an EXPEDITED BASIS. If plaintiff chooses to respond to the application for leave to appeal, plaintiff shall file his answer within seven (7) days following this Court's receipt of all of the above listed transcripts.
Ronayne Krause, J., respectfully dissents from the order granting stay. Procedurally, mother failed to comply with MCR 7.105(B)(5) because she has not provided us with any transcripts; worse, mother did not even attempt to order them on an expedited basis despite clearly believing the matter to be urgent. Inexplicably, the majority chooses to reward her for being dilatory. I would deny her motion to stay for that reason alone, or at a minimum, I would impose a deadline following which the stay would be automatically lifted if we do not receive the transcripts.
Furthermore, mother's argument is absurd on its face. She contends that the "lower court committed clear legal error when it failed to address whether the establish [sic] custodial environment of the children would be modified if the children were injected with the shot" (mother's brief, p 16). Mother makes much of her undoubtedly sincere, if medically unsubstantiated, religious belief that "the body is based upon specific genetic make-up and that injections dilute that makeup and cause great travesty to the Holy Spirit's creation" (mother's brief, p 9), notwithstanding the fact that one of the children was treated with chemotherapy for cancer. More than a century ago, the notion that vaccines tended to harm the body rather than cure disease had already been relegated to a minority position disagreed with by medical authority. See Jacobson v Massachusetts. 197 U.S. 11, 30; 25 S.Ct. 358; 49 L.Ed. 643 (1905). To the extent mother provides us with any evidentiary support for her extraordinary views, it appears to be some kind of "briefing document," which appears to indicate that, unlike COVID-19, the risks from vaccination do not include death-something likely to be a significant concern for a child who has a history of cancer. The rest of mother's argument, insofar as it is comprehensible, appears to be either a misuse of statistics or based on testimonial evidence that, as noted, she was obligated to provide but did not. In any event, the entire premise of mother's argument appears to be that the children's relationship with father will be destroyed in the event father chooses to conduct himself responsibly by making a decision that will protect the children's long-term health at the cost of some temporary discomfort. It is well-known that parents must sometimes make decisions with which their children do not agree. To the extent mother accuses father of changing his views, that is not an unheard-of phenomenon when people come into contact with new knowledge.
I would deny mother's request for stay on both the lack of substantive merits and the lack of procedural merits, or at a minimum I would limit the stay to three days unless the transcripts are received by this Court within that time.