Your honor Jordan a show and broad on behalf of uh the defendant Brandon me who last I knew was in the waiting room and I do not see him. I do see him on my screen now so I believe he's here with us. Are you here Mr Me?
Yes sir. All right. Thank you.
So it looks like we have council and the parties. Um got a bunch of busy stuff going on with this case. So, let me get it set up here in my file.
Looks like we have a request for um to set aside the referee's recommendation and then we have a objection to the referee's recommendation. I believe that's all the same thing uh from the plaintiffs. Uh so let me hear from the plaintiffs first and then we'll hear from the defense and then we'll see where we go from there.
Yes, your honor. Uh thank you. We are requesting a denovo hearing pursuant to MCR 3.
215. Under that court rule, the court may conduct a hearing, take additional evidence or order that the referee conduct a further hearing when necessary to properly decide the issues. And that's what we think is going on here in this case.
The referee's recommendation rests materially. It rests on materially incomplete record particularly as it relates to the child's school placement um which as we all know is a significant joint legal custody issue that directly implicates multiple best interest factors. Um let me let me interrupt you for just a second.
Um I think that there's two steps to this process. One is that there was already an order entered adopting the referee's recommendation. Is that correct?
That is correct your honor. So, you're asking me to set that aside based on some um service issues that you had trying to get that objection here in a timely manner. Is that correct?
That is correct, your honor. And just for additional context, um I think I even misspoke in my motion for reconsideration in that I I believe I indicated that we gave opposing council notice on the 16th prior to the deadline. She was actually given notice on the 15th.
Um, [clears throat] we did overnight our objection to get to the court the next morning and [clears throat] apparently did not get there until the day after the deadline. Um, that's our own deal with UPS and as to why that occurred, but we would argue that certainly dad has not been prejudiced by this delay. I think that's even more evident in the fact that he was able to file a response to our objection.
So, as far as I'm aware, cuz it's it was never brought up to me, I didn't notice that this was late until we got the signed order um through a records request uh that we realized that there was a problem. So, we would argue that nobody's been prejudiced by the delay. We're here today.
Um and we would ask that you know based for the re on the reasons outlined in our motion that the court could constitute the constitute the delay as excusable mistake or neglect however you want to word it but um I don't feel disposing of the objection and request for a denovo serves the children's best interest um just because of a technicality. All right. As to that limited motion to set aside the order based on the service issue, uh, defense council, your response.
Well, your [clears throat] honor, I don't have the Well, I I see it now because my assistant brought it in because it's in my mail this morning this motion to set aside. I see at the bottom of his cover letter, he says he emailed it to me. Uh, I I presume November 5th, the date of his cover letter.
I did not receive that via email. So, I have not even reviewed his motion to set aside. I am aware that he is making that request.
My position is um I see it in his motion now. Michigan law MCL 552. 507 and MCR 3.
215 right to request a denovo hearing under MCL 552. 507 507 and MCR 3. 215.
Either party has a right to request a denovo hearing by filing a written objection and a notice of hearing with the cler of the court within 21 days after recommendation is served. One, file a written objection. Two, f a notice of hearing.
three with the cler of the court within 21 days after recommendation is served. What happened next? Timely objection filed.
The court must conduct a denovo yelling. The judge we hear the case and you knew no defense to the friend of the court recommendation. New hearing new decision.
No timely objection filed. If no timely objection is filed, the proposed order is submitted to the judge and typically entered. Proposed order is submitted and entered.
Key takeaway act within 21 days if you disagree with a friend of the court. Recommendation otherwise you may lose your right to a denovo hearing and the recommendation will likely become the court order. protect your right and meet 21 days deadline that he states his client retained him a couple days prior to the objection period.
Um, this is kind of her uh MO in this type of case. It's happened in motions before where she is not timely. Um, she withdraws the motions after my clients spend significant fees defending them.
And so my position is that the court should uphold their order and that it wasn't filed timely. Your honor, if I may offer some quick insight, I I also don't know the veracity of the truth as to what council just stated regarding, you know, prior filings or being withdrawn. I I will point out that even when I look at the register of actions, my client had less than 7 days notice for this evidentiary hearing.
It doesn't even look like for this Febru or September 15th hearing, the actual notice of hearing was not prepared until September 9th. So, procedurally, I think my client was at a disadvantage. I think that pertains both to this issue as well as the request for the denovo.
But, nonetheless, um I again, I do not think that dismissing this based on a technicality serves the children's best interest, the child's best interest in any way, shape, or form. And we're here. I do not know why we would not just continue as as planned.
All right. I'm going to uh agree to set aside the order adopting the referee's recommendation uh because I do believe that uh plaintiffs council attempt had it answer ready prior to the or had an objection ready prior to the expiration of the time period. Uh but there was an issue with overnight mail uh which he has documented in his motion uh that appears to me to be uh while he was skating very close to the edge as far as a time limit uh he did take action substantial action within the time limit that normally would have gotten the um objection to the court within the normal time period.
uh it was but for the court's um efficiency um where I entered the order on the first day that it was possible to enter that order um it it nor in most courts and in quite frankly in this court normally it would have taken a couple of days and the documentation would have been here in a timely manner. Um so for those reasons uh the procedural technicality of it I am going to grant the request to set aside the order adopting the referee's recommendation and find that the um objection was timely entered which brings us to so council if you would uh plaintiffs council if you would prepare an order uh that grants that motion um for my signature I would appreciate that and then that brings us to today uh where there is the request for a denovo hearing. Uh so I'll hear argument uh on whether or not we should have a denovo hearing and then we'll set if that's granted, we'll set a time in the future for the actual argument and because I have not had a chance to review the referee's uh CD or the the video of that yet.
Um so we'll hear some argument on whether or not we should have a denovo hearing. So I'll allow plaintiff now to argue that motion. Go ahead, sir.
Thank you, your honor. As I was just mentioning, this hearing was originally scheduled for October 15th. The the referee evidentiary hearing and then suddenly I I believe my client got noticed on September 8th that the hearing was now be moving being moved up to September 15th.
The notice for that hearings was actually prepared on September 9th. Um and I think that leaves her at a severe disadvantage. She did try to get officials from both schools as well as other witnesses to appear for that hearing.
Of course, um she is not an attorney. I I understand that she didn't know how to subpoena these witnesses, but I must say even if I had 6 days notice of a hearing, I think it would be very difficult for me to get witnessed for an evidentiary hearing on such short turnaround. So with that, I think immediately she was at a disadvantage for this hearing.
Um, and first of all, the referee did not hear because of this testimony from any personnel at the child's school, the prior school or the current school. Yet, these are the individuals who teach, evaluate, and observe this child daily. It's not just based on uh subjective opinions of the parties.
And we believe that these witnesses would have central facts under several best interest factors, particularly BH and and J. Without that testimony, the referee clearly lacks a complete evidentiary basis to assess the child's schooling needs and whether or not the the the the current school versus the prior school, you know, who is better equipped to accommodate the child. Not to mention, the referee didn't hear any testimony regarding other options as well, such as other schools, homeschooling, whatever else there could be.
I think it's also important to note that this objection appear or the uh the the recommendation your honor appears to be more heavily focused on sanction driven regarding my client and her procedural deficiencies and going about this rather than what's actually in the child's best interest. So, we believe that the Michigan courts have recognized that this denovo process exists to ensure that the judge and the referee can make the ultimate decision on contested issues based on a complete record and that the court uses the denovo hearing to receive additional evidence for the referee's record does not adequately address the child's best interest. And that's what we think is going on here.
We don't believe that this is a minor issue. The school placement is significant. It affects the child's stability, daily routine connections, um access to academic supports, which I think is clearly um controlling in this case simply because this child does have an IEP and this kind of decision of this magnitude should not rest on a partially complete record.
We are not asking the court to rehear this matter. We're not asking the court to relitigate. We're just asking to sub to supplement additional testimony so that this court can make a proper decision in the child's best interest.
Uh at the end of the day, your honor, I think the process here was uh procedurally deficient itself in the fact that there was such short notice for my client to gather these witnesses for this hearing. And we would just ask that this court either send this case back to the referee in order to conduct uh some supplemental testimony or this court can hear that on a denovo hearing. But we would ask that this court allow my client to present that uh evidence and testimony.
Council, thank you honor. Uh first I rely on all of the arguments set forth in my response to uh plaintiff's objection. The fact of the matter is, Miss Rollins failed to properly prepare for what was a 3-hour evidentiary hearing.
She can claim all she wants that she didn't have time to prepare, but my client had the same amount of time. She filed to my office 3 days before the evidentiary hearing a list of proposed exhibits and witnesses. She failed to call witnesses.
She failed to um and I will disclaim my uh colleague did handle the evidentiary hearing. So to my knowledge um she did not submit any evidence at the evidentiary hearing. She could have raised procedural issues at that time or timeliness issues and that was not done.
In fact, now she's retained counsel just days before the deadline and as we just went over had issues getting an objection in timely. Um and now she does want to relitigate this whole case. her whole 60some paragraph objection sets forth how what evidence she will present what witnesses she would like to call all of that would have been available and was available to her at the evidentiary hearing she filed an exparte motion trying to change the child's school it was denied uh my client did the same thing to try to prevent the change of school that was denied and there were several hearings noticed um my office had to call the court numerous times to make sure we were prepared and that what was noticed was actually what was happening that day.
She could have done the exact same thing and failed to do so. The fact that she was underprepared for again what was a 3hour evidentiary hearing, it would be prejuditial to my client if this court allowed another uh full-blown evidentiary hearing. Pursuant to MCR 3.
215 F2, this court does have discretion to limit uh witnesses and exhibits that were available to her. Michigan Complied Laws MCL 552507 bracket 4. The court shall hold a denovo hearing on any matter that has been the subject of a referee hearing upon the written request or either party under MCL 552.
507 507 bracket four. Either party has the right to request a denovo hearing by submitting a written request after the referee has issued a recommendation. What a denial hearing requires.
Michigan appalat court have been emphatic. A genuine denial hearing requires more than a paper review. The court must allow the parties to present life evidence at the judicial hearing.
Number one, present live witness. Party must be allowed to call and examine witnesses in person. Two, introduce documentary evidence.
Party must be allowed to offer and examine documents into evidence. Three, crossexamine witnesses. The oppositing parties must have the opportunity to cross-examine weaknesses.
Four, make agreements. Party must be allowed to make full arguments to the judge. A denovo hearing means the judge hears the case and you considers the evidence for the first time and makes an independent decision.
Not just a review of the referee's record, not just written brief and submission, not just a rubber stamp of the recommendation at the time of the evidentiary hearing. Frankly, I don't think a denovo hearing should be granted at all in this case, but if one is, I would request that they are limited to new evidence available after uh the evidentiary hearing, which frankly will only be detrimental to her cuz the child is not doing well in his current school. I also do want to point out that she continues to violate this court's order despite the referee's recommendation admonishing her for saying we are now going on four months of the child being in a choice of school of her choice only that only benefits her.
The child again is doing extremely poorly and for sake of uh arguing against my own argument of bringing up new evidence. Uh th this cannot continue to go on. We have a show cause motion uh pending and I believe sanctions should be granted against her and the child should immediately be replaced in uh Gaylord Community Schools.
May I have a brief response? Yes. Thank you, your honor.
So, first of all, I I would caution the court as to allowing this allowing council to provide facts that have not been proven or testified to regarding how the child is currently doing. I will say that I think it's even more concerning that neither one of these parties actually reside in this district anymore. I can't even sit here and say today that this child could even be allowed back into uh the Gaylord school district.
Um my client has sold her home and it's not just as simple as well, it's in this child's best interest that we limit this witness testimony. This court's job is to determine what is actually in this child's best interest. And the only way they can do that is to get a full um record to review.
I I I would say that these witnesses weren't available on such short notice and I do not think any witnesses should be limited. I I don't think that my goal here is not to have cumulative testimony. It's not to put my client back on the stand to testify to what she already did.
But it would be my intent to take a few hours to get the people in here. And maybe the court uh opinion changes, maybe it doesn't. But I think by giving my client less than 7 days notice for this hearing did put her at a disadvantage.
Um I do think that's a violation of her due process. And at the end of the day, we we don't feel in any way, shape, or form that any of this is to serve the best interest of the child rather than just sanction my client. May I respond, your honor?
No. How is it that your client plaintiffs council didn't have notice and didn't have preparation time when she didn't bring the issue of changing schools to the court's attention until the end of August? How is it that she would not have proper notice that a hearing would be required and that witnesses and school information would be necessary when she waited until August the 28th to file to even file a first motion regarding changing school systems beginning the next weekend or after the next weekend after the the Labor Day weekend.
So, how is it that she did not have sufficient time to file a motion and gather the witnesses and evidence that she needed during the entire length of the summer preceding her motion? And I think that's a fair question, your honor. I think that just lends uh questions to the timeline here.
My my understanding is that my client had discussed this with opposing party and it wasn't until the end of summer that he indicated he wasn't okay with this arrangement. That's my understanding. Um and at that point she had was well underway of already I mean obviously she she had to take steps to get this child into this school ahead of that filing.
It wasn't until it was clear that he wasn't actually agreeing to anything and that this was a legitimate problem and that she learned what the process was that she did file that motion. And from when I look at it, it was kind of a messy start to the case and the fact that there were several expartes filed. Um, you know, the best procedure probably wasn't followed here and hindsight is 2020, but nonetheless, I I think that's still different.
She she filed the motion. Um, I I don't even I can't even say if she knew who the teachers were at the new school at the time that she filed that motion. But even then, in my experience with these school officials, they're not going to show up unless they do have a subpoena.
And you get that um advice from their council. So, so she filed this on the 28th and then there was a hearing on the 15th. I I still think that's there was no way for her to know when a hearing would actually be scheduled, especially since the original notice was for October 15th and then got pushed up a month.
So that was just kind of unusual. I I think with the timing, it was unusual because the court wanted to make a decision before the child was in school for any length of time, which is how that decision is supposed to be made. It's supposed to not jerk a child out of a school system and bounce it back and forth.
The court had no way of knowing which way the case was going to go. So, we set it as early as possible so that we could make a decision that would not unfairly jerk the child around if a decision to the contrary was made. Uh I I think the court did everything in its power to make amends for the mess that the plaintiff created.
We tried to have a hearing as quickly as possible so that neither side was prejudiced and the child was not clearly prejudiced by moving school districts. Uh she's the one who made the unilateral decision to move the school districts uh without prior court intervention, which is something that just simply should not be done period. Uh she did it.
She bears the consequences of that decision. And the consequence is there was a shorter timeline. That's not the court's fault and it's not the defendant's fault.
She had every time to to to gather the evidence during the summer. She didn't make a decision to go over to um the Traverse City area or the Forest Schools area um on August the 28th. She had that decision made many weeks in advance of that.
Um, so she's had plenty of time in my view to gather that evidence and to have those witnesses available ahead of time. The fact that she waited until the last minute to gather the evidence is nobody's fault but her own. Uh, so no, I under the statute, I'm not going to give her the ability to call witnesses that she could have had previously.
NCL 552. 507 subsection P uh see subse excuse me subsection six uh says that a denovo includes a denovo hearing includes um a new decision based entirely on the record of previous hearing including any documentation submitted there and that's what we're going to do. I'm going to make it on that the information that was available to the uh referee at that time.
The court has the discretion under that statute to prohibit the party from presenting evidence uh that was not objected to uh to deter determine the referee's finding conclusive as to any fact that was not objected to and to prohibit the introduction of new evidence or use of new witnesses absent showing that the evidence was not available at the referee hearing. I believe that that evidence was available at the prior referee hearing for all the reasons I stated on the record. So I will grant you a request for a denovo uh review.
I will make that denovo review based on the information previously provided to the referee and I'll issue my written opinion uh as quickly as possible thereafter. Um defense council, if you prepare that second order uh with that ruling, I'd appreciate it. Is there anything else that we need to do today, council?
I don't believe so your honor. Thank you very much. That's all.
Thank you, your honor. MCR 3. 215 bracket F bracket 2 authority to prohibit new evidence or new witnesses.
MCR 3. 215 215 bracket F bracket 2 permit the court in a denovo hearing to prohibit new evidence or new witnesses unless adequate showing the party must show that the evidence or witnesses was not available at the referee hearing without the showing the courts may prohibit the new evidence or new witnesses. Court expresses finding in the case.
The court expressly finds for the reasons it states that the school testimony was available at the time of the referee hearing while the evidence was available. The school existed and was in operation before the referee hearing. The information and the weaknesses were known or should have been known by reasonable diligence.
The party had sufficient time to obtain the testimony and present it at the refu hearing. No unexpected circumstances prevented the party from securing the testimony earlier. Key takeaway under MCR 3.
215 215 bracket F bracket two. New evidence or new witnesses can be excluded at a denovo hearing unless the party makes an adequate showing that the evidence was not available at the referee hearing. Thank you guys for watching.
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