Opinion
No. 330362
02-21-2017
NAZAR MOHAMED NASSER, Plaintiff-Appellant, v. ANISSA SALEM YAFAI, formerly known as ANISSA SALEM NASSER, Defendant-Appellee.
UNPUBLISHED Wayne Circuit Court Family Division
LC No. 02-219004-DM Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ. PER CURIAM.
Plaintiff Nazar Mohamed Nasser appeals as of right the order of the trial court awarding sole legal and physical custody of the parties' minor child to defendant Anissa Salem Yafai. We vacate the trial court's opinion and order and remand this proceeding to a different trial judge for further proceedings.
I.
The parties were married on March 12, 2000, and their only child, TN, was born in 2001. A judgment of divorce was entered on March 31, 2003. Yafai subsequently remarried and moved with her new husband to Oregon in 2006. As a result of various motions and orders following the judgment of divorce and one appeal before this Court, Nasser v Yafai, unpublished order of the Court of Appeals issued May 28, 2013 (Docket No. 311085), as of April 2014, the parties had joint legal and joint physical custody. TN primarily resided with Nasser but Yafai was allowed two holiday parenting times a year with TN in Oregon and was allowed parenting time in Oregon with TN during the majority of the summer. The present dispute began on April 8, 2014 when Yafai filed an emergency motion seeking an ex parte order for the change of custody alleging that TN had met with Barbara Watry, who the trial court had previously appointed TN's guardian ad litem (GAL), that Watry had reported to Yafai that TN disclosed to her that he had been beaten regularly by Nasser, and that Watry would be preparing a report to the Court. In later orders the trial court disclosed that it did receive a report from Watry later that day. Yafai acknowledged that despite her abuse suspicions, she did not contact Nasser, the police, or CPS but simply had the emergency motion filed on April 8 and then flew to Michigan and picked TN up from school on April 9.
Watry was initially appointed GAL by the trial court following an emergency motion to suspend Nasser's parenting time filed by Yafai in 2010. As with the 2014 emergency motion, the 2010 motion also concerned allegations of abuse.
It is unclear whether Yafai had the authority to pick TN up from school in the manner that she did.
The trial court granted Yafai's emergency motion precluding Nasser from having contact with TN and allowing Yafai to take TN to Oregon on April 9. No evidentiary hearing was held prior to the issuance of the order and one was not scheduled until May 16, 2014. The trial court relied solely on GAL Watry's report, finding that under MCL 722.27(1)(d) the report was admissible evidence and sufficient for it to temporarily modify TN's custody arrangement. However, the trial court subsequently ordered the GAL report destroyed, and, therefore, we have not been able to review it. A CPS investigation did not substantiate any allegations of abuse, and, after a motion hearing on May 8, 2014, the trial court vacated the ex parte order.
While Nasser filed a motion seeking to have the GAL report purged from the record, it is unclear if the trial court ordered the report destroyed pursuant to Nasser's motion or on its own initiative.
The May 8, 2014 hearing was conducted simply as a motion hearing and not an evidentiary hearing. The CPS investigator, who reported that the allegations against Nasser were not substantiated, was not sworn before reporting his findings to the court. Additionally, while the trial court vacated its April 9, 2014 ex parte order, when asked by Nasser's counsel if this meant that TN was to be returned to him pursuant to previous custody and parenting time orders, the trial court expressly refused to state where TN was to be placed following the hearing.
Immediately following the hearing, Watry made a phone call to a Dr. Joseph Zambo, a limited licensed psychologist who had previously counseled TN and whom the trial court had ordered TN to begin counseling with, and requested that Dr. Zambo meet with TN. Yafai drove TN to Dr. Zambo's office that same day, and, after he met with TN, Dr. Zambo wrote a detailed letter to Watry stating that during the interview TN described numerous instances of Nasser physically abusing him. The following day, May 9, 2014, Yafai attached this letter to a second emergency motion for an ex parte order to change custody. On May 16, 2014 the trial court entered a brief order stating that TN was to return to Oregon for the remainder of the school year. The trial court's May 16, 2014 order also stated that Nasser's attorney could not depose Watry and that Watry would not be permitted to testify at court.
While a motion hearing was held prior to the entrance of the May 16 order, the hearing was not an evidentiary hearing. The trial court relied on the fact that its May 8 order had stated that Nasser's parenting time would be suspended if Dr. Zambo expressed any concerns.
TN resided with Yafai in Oregon during the last two months of the 2013-2014 school year and through the summer of 2014 despite several motions by Nasser seeking to have TN returned to Michigan, all of which were denied by the trial court. It was not until August 27 that the trial court ordered that TN be returned to Michigan and that he attend school in Michigan in the fall. The order stated that TN was to reside with Yafai's family and that Nasser's parenting time was to be supervised. Following the August 27 order, Yafai returned to Michigan with TN and continued to have him reside with her while he began school. Two parenting time sessions were scheduled for Nasser in early September, but the parenting time supervisor testified that in both instances TN adamantly refused to participate.
The trial court ordered the parties and TN to submit to a psychological evaluation by a Dr. Pamela Ludolph and for Ludolph to submit a report to the court. On September 17, 2014, Yafai filed a motion alleging that TN had been traumatized by his return to Michigan and requesting that she be allowed to return him to Oregon. In support of this motion, Yafai relied on a report from Watry, two letters written by Dr. Zambo to Watry, and TN's medical records. On October 17, 2014 the trial court ordered that upon completion of Dr. Ludolph's last appointment with TN he be permitted to return to Oregon with Yafai until further order of the court. A full evidentiary hearing on the issue of custody and parenting time was held on various dates between January 27, 2015 and July 22, 2015. On June 8, 2015 the trial court ordered that Watry be released from her duties as GAL. On July 17, 2015 the trial court entered an order stating that "[p]ursuant to MCL 722.24 this Court appoints Benton G. Richardson as Attorney Guardian Ad Litem."
As with previous orders, the October 17 order followed a motion hearing but not an evidentiary hearing. At the motion hearing, the trial court stated it had interviewed TN and that TN had expressed his desire to return to Oregon with Yafai.
The parties submitted their written closing statements to the court on August 31, 2015, and the trial court issued an opinion and order on November 6, 2015 that granted Yafai sole physical and legal custody and prohibiting Nasser from having any in-person parenting time with TN absent a recommendation in support from TN's therapist in Oregon.
II.
Although not dispositive of our ultimate resolution of this case, we find that the trial court committed numerous legal errors through its various orders between April and October 2014 that impermissibly changed TN's established custodial environment without properly holding an evidentiary hearing on TN's best interests.
While the trial court had the authority to enter emergency and ex parte orders if it was satisfied that Yafai's motion set forth facts that showed "irreparable injury, loss, or damage" would result from any delay, MCR 3.207(B)(1), the trial court's authority is limited by MCL 722.27(1)(c), which provides that "[t]he court shall not . . . 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." "[W]hen considering an important decision affecting the welfare of the child, the trial court must first determine whether the proposed change would modify the established custodial environment" and that if so a full review of the best interest factors is required. Pierron v Pierron, 486 Mich 81, 85-86, 92; 782 NW2d 480 (2010).
Through its various orders between April and October 2014, the trial court effectively changed TN's established custodial environment from being in Michigan with Nasser to being in Oregon with Yafai. Prior to April 2014, TN had primarily resided with Nasser since the time of the parties' divorce in 2003 and had always attended school in Michigan. Despite disrupting that environment through its various orders beginning in April 2014 and sending the child back and forth across the country the trial court did not hold a single evidentiary hearing but instead relied on various hearsay reports from Watry (at least one of which it then had destroyed) and letters to Watry from Dr. Zambo. "A trial court's characterization of its change in physical custody or possession as temporary or interim, does not change the fact that the court is changing physical custody of the child." Mann v Mann, 190 Mich App 526, 531; 476 NW2d 439 (1991). "A hearing is required before custody can be changed on even a temporary basis." Schlender v Schlender, 235 Mich App 230, 233; 596 NW2d 643 (1999) and Grew v Knox, 265 Mich App 333, 336; 694 NW2d 772 (2005).
While the trial court may have considered each of its orders between April and October 2014 as either temporary or a mere modification of parenting time, in reality these orders effectively changed TN's established custodial environment and modified the previous custody order. While an initial ex parte order removing TN from Nasser's care may have been justified due to concerns expressed in a GAL report, it is inexplicable why the trial court moved TN clear across the country in the middle of the school year when it is undisputed that Yafai and Nasser both had numerous family with whom TN could have been placed pending an opportunity for an evidentiary hearing on the allegations. Having sent the child to Oregon on April 9, the court then directed he be returned to Michigan in early May, only to then issue an order on May 16, 2014 directing that he return to Oregon with Yafai for the remainder of the school year. Then, Nasser's requests to have TN returned to Michigan to allow him some parenting time, even supervised time, during the summer vacation were denied. Despite the fact that Yafai had previously been awarded parenting time with TN in Oregon during the summers, the trial court's actions in allowing TN to remain in Oregon the entire summer were not simply a maintenance of the previous custody arrangement. TN had already spent the entire latter part of the spring with Yafai in Oregon, contrary to past practice. Allowing TN to remain in Oregon the entire summer only served to increase his bond with Yafai while further decreasing his bond with Nasser. Then in October of 2014, again without holding an evidentiary hearing or making a best interest determination, the trial court ordered that TN could return to Oregon with Yafai indefinitely.
We agree with Nasser that the trial court impermissibly altered TN's established custodial environment without an evidentiary hearing or best interest determination contrary to well established case law. Grew, 265 Mich App at 336, Schlender, 235 Mich App at 233, and Mann, 190 Mich App at 531. Nevertheless, these errors cannot form the basis for our decision to vacate the trial court's November 2015 opinion and order granting Yafai sole physical and legal custody because the trial court did ultimately hold a full evidentiary hearing. Mann, 190 Mich App at 533. Even if a trial court erroneously grants a party temporary custody pending the outcome of a custody trial, that error does not, in and of itself, necessitate vacating the final order entered after the full evidentiary hearing. Hayes v Hayes, 209 Mich App 385, 387-389; 532 NW2d 190 (1995).
Nasser could have filed a claim of appeal from any of the trial court's temporary orders and asserted as a basis for relief that those orders impermissibly changed TN's established custodial environment without the required evidentiary hearing. See MCR 7.202(6)(a)(iii), Thurston v Escamilla, 469 Mich 1009; 677 NW2d 28 (2004) (stating that an order permitting a party to move the children to the state of New York was an order "affecting the custody of a minor' " under MCR 7.202(6)(a)(iii)), and Surman v Surman, 277 Mich App 287, 293-294; 745 NW2d 802 (2007) (stating that a temporary order is a "final order" appealable by right to this Court provided it affects the custody of a minor child, and a failure to timely file an appeal from that order precludes a party from later seeking to obtain appellate relief from the temporary order in a claim of appeal from a later order).
III.
Turning to the trial court's November 2015 opinion and order, we find that the trial court committed clear legal error in impermissibly relying on reports from both Watry and her successor to form the basis of its threshold proper cause determination, its finding that an established custodial environment existed with Yafai, and its findings on the best interest factors. Therefore, we vacate the grant of sole physical and legal custody to Yafai.
While the trial court's findings of fact are reviewed to ensure that they are not against the great weight of the evidence, and discretionary decisions are reviewed for an abuse of discretion, questions of law are reviewed for clear error. Kubicki v Sharpe, 306 Mich App 525, 538; 858 NW2d 57 (2014). "The trial court has committed clear error when this Court is definitely and firmly convinced that it made a mistake." Parks v Parks, 304 Mich App 232, 237; 850 NW2d 595 (2014) (citation and quotation marks omitted). "In child custody cases, an abuse of discretion occurs if the result [is] so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias." Maier v Maier, 311 Mich App 218, 221; 874 NW2d 725 (2015).
In support of its finding that an established custodial environment existed with defendant, the trial court noted that "[t]hrough reports by both G.A.L.'s, . . . [TN] appears to look to the Defendant mother for guidance, healthy discipline and parental comfort." In its best interest determination, the trial court also noted that it found "the reports submitted by the G.A.L.'s . . . to be highly credible and relevant to the issues at hand." In its evaluation of best interest factor (k) (domestic violence), MCL 722.23(k), the trial court again looked to both of the guardian ad litem reports stating that TN had "consistently maintained to both Guardains Ad Litem . . . that his father abused him." Finally, the trial court relied on reports from both Watry and her successor to support its finding that Nasser had engaged in "argumentative behavior" sufficient to justify a conclusion that Yafai should be granted sole legal custody of TN. These consistent references to the reports of both Watry and her successor convince us that both of them exerted considerable influence on and played a key role in shaping the trial court's overall determination. In relying as heavily as it did on these reports, the trial court ran afoul the statutory limitations placed on their roles.
A guardian ad litem is "an individual whom the court appoints to assist the court in determining the child's best interests" and who does not need to be an attorney. MCL 722.22. A trial court may "[u]tilize a guardian ad litem . . . in the investigation and study of custody disputes and consider [his or her] recommendations for the resolution of the disputes." MCL 722.27(1)(d). A lawyer guardian ad litem, by contrast, has a duty to the child, not to the court, and essentially functions as the child's attorney. MCL 722.24(2) & MCL 712A.17d. The reports from a lawyer guardian ad litem are not to be admitted into evidence unless all parties stipulate. MCL 722.24. And because a trial court's decision to modify a previous custody order must be based on admissible evidence, MCL 722.27(1)(c) and Mann v Mann, 190 Mich App 526, 532; 476 NW2d 439 (1991), a trial court may not use the report of a lawyer guardian ad litem to support its determination on whether proper cause or change of custody exists, its determination on whether an established custodial environment exists, or its best interest determination.
While we ultimately take no position on whether the trial court was correct in its conclusion that MCL 722.27(1)(d) allowed it to consider Watry's April 2014 report as evidence to support even its initial temporary orders in the Spring of 2014, we note that the statutory language does not state that a guardian ad litem's report can be admitted into evidence; it simply states that the court may "[u]tilize a guardian ad litem . . . and consider [his or her] recommendations." The fact that a trial court is allowed to read a report and consider its recommendations is not the same thing as stating that the report is admissible evidence. A trial court is certainly allowed to hear both written and oral opening and closing statements from attorneys and no doubt considers their persuasive effect in making its ultimate determination. But this is not the same thing as relying on such statements as evidence to support the factual conclusions necessary to reach a resolution.
The order appointing Watry's successor, "Benton G. Richardson," explicitly states that he was appointed "as Attorney Guardian Ad Litem" and appointed "[p]ursuant to MCL 722.24." Therefore, the trial court committed clear legal error in using his report in the manner that it did to support its November 2015 order. While Watry was initially appointed simply "as guardian ad litem," the order that appointed her was from March 25, 2010, over four years before the start of this present dispute. Our evaluation of her actions in the present dispute, which began in April of 2014, convince us that she acted more in accordance with the role of a lawyer guardian ad litem. Despite allowing her to submit multiple reports on multiple occasions, the trial court ordered that Nasser's attorney could not take her deposition and that she was not allowed to testify at trial.
Furthermore, while her initial April 2014 report was stricken from the record and we have not been able to review it, the one report from Watry that is contained in the record, from June 2014, reads far more like the brief of a zealous advocate than it does a report submitted by a neutral investigator seeking to aid the court in determining TN's best interest. Therefore, we construe the trial court's order prohibiting Nasser's counsel from deposing Watry and prohibiting her from testifying at trial as an order that effectively appointed her as a lawyer guardian ad litem. See Keywell & Rosenfield v Bithell, 254 Mich App 300, 326; 657 NW2d 759 (2002) (stating that it is the substance of a ruling that determines its true nature, not its label), and Dubin v Fincher, unpublished opinion per curiam of the Court of Appeals issued June 19, 2014 (Docket No. 318076), p 12 (determining that when a trial court order allowed an attorney to perform all the functions of a lawyer guardian ad litem and restricted her ability to be called as a witness that the order had the effect of making such an appointment notwithstanding the absence of explicit language stating as much). Given that Watry functioned in all aspects as a lawyer guardian ad litem, the trial court committed reversible error in relying on her report in the manner that it did to support its November 2015 order.
The report refers to Nasser's actions as "outrageous and ludicrous" and describes Nasser as having a "complete disregard [for] the child's emotional well-being." Additionally, upon noting Nasser's objections to having the trial court speak with TN, the report states that "if Father has the bravado to make such requests in open Court, for all to hear and know, what is the true extent of what goes on in private with the child?" --------
Finally, despite having stricken Watry's April 2014 report from the record, the trial court continued to rely on that report in its November 2015 order. In making its threshold proper cause determination, the trial court noted the allegations made by Watry that TN had reported abuse. Furthermore, in its evaluation of best interest factor (d) ("the length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity"), MCL 722.23(d), the trial court again made explicit reference to TN's "statements to the G.A.L. . . . that the father physically assaulted him." These statements are both clear references to Watry's initial April 2014 report that first disclosed the abuse allegations that formed the basis for this present dispute. As we have noted, the trial court's order destroying Watry's April 2014 report has precluded us from having the opportunity review it. Because the trial court ordered the report be destroyed and stricken from the record it was clear and reversible error for the trial court to rely on it to support its November 2015 order. Therefore, even absent our determination that Watry functioned as a lawyer guardian ad litem, we would still be compelled to vacate the trial court's November 2015 award of sole legal and physical custody to Yafai because the trial court erroneously relied on a stricken report in both its threshold probable cause and best interest determinations.
IV
We also vacate the trial court's November 2015 order pertaining to parenting time. The trial court only granted Nasser parenting time after consultation and recommendation of TN's therapist. "[P]arenting time shall be granted . . . in a frequency, duration, and type reasonably calculated to promote a strong relationship between the child and the parent granted parenting time." MCL 722.27a(1). The grant or structuring of parenting time should provide "a realistic opportunity to preserve and foster the parental relationship." See McKimmy v Melling, 291 Mich App 577, 584; 805 NW2d 615 (2011) (discussing the development of a parenting time schedule when a change of domicile or legal residence occurs).
The trial court's order states that parenting time will be at the recommendation of TN's therapist in Oregon. This therapist never testified at the custody hearing. The trial court indicated near the end of the hearing that it would plan on speaking to him, but it is unclear from the record whether this actually happened. To the extent the trial court did speak to this therapist and consider his opinion, this would clearly be improper as Nasser would not have had any opportunity to cross-examine him or rebut his statements. While the trial court's order provided Nasser with the opportunity to continue to have phone calls with TN, the record established that the likelihood of Yafai working with TN to ensure that such calls actually take place and are productive to helping Nasser and TN rebuild their relationship is minimal. The trial court's order that only provides Nasser with parenting time upon the conformity of a recommendation with TN's current therapist effectively deprives Nasser of any opportunity to seek an avenue towards obtaining parenting time with his son.
The trial court was correctly reluctant to force interaction without an evaluation or input by the child's counselor regarding the potential for harm, but this is no excuse for the failure to define a specific plan to attain the stated goal. We agree with Nasser that the trial court's orders limiting his parenting time make it difficult if not impossible for him to repair his relationship with his son. There has never been a detailed plan for Nasser to engage in contact with TN, albeit in a structured manner, necessary to rebuild the parent child relationship. Given the lack of structure provided by the trial court and its reliance on future ex parte statements by a non-witness, it is difficult to see how reasonable parenting time can be established. Therefore, we vacate the trial court's order as it pertains to Nasser's parenting time.
V.
Nasser contends it is necessary, on remand, to assign this matter to an alternative judge. Nasser references the chaotic nature of the proceedings and considerable delays to support his request for reassignment. This Court "may remand to a different judge if the original judge would have difficulty in putting aside previously expressed views or findings, if reassignment is advisable to preserve the appearance of justice, and if reassignment will not entail excessive waste or duplication." Bayati v Bayati, 264 Mich App 595, 602-603; 691 NW2d 812 (2004).
We agree with Nasser that on remand this matter should be assigned to a different judge. The trial judge lost control of these proceedings as demonstrated by the lengthy delays in conducting the evidentiary hearing and issuance of an opinion and order. The trial court frequently expressed frustration with the manner and timeliness of the proceedings, yet it did not actively take steps to garner control or effectuate change in the behavior of the parties or their counsel. We also recognize the trial court's numerous legal errors in these proceedings, both in its November 2015 order and also in its orders between April and October 2014 that altered TN's established custodial environment without conducting the required evidentiary hearings. We conclude that assignment to an alternative judge is necessary to expeditiously resolve these remaining issues in a manner consistent with established law.
We vacate the trial court's November 2015 opinion and order in its entirety. We remand to the trial court for further proceedings as to custody and parenting time. On remand, an alternative trial judge shall be assigned. We do not retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ Deborah A. Servitto
/s/ Douglas B. Shapiro