            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



PATRICIA LABARRE,                                                    UNPUBLISHED
                                                                     August 15, 2019
               Plaintiff-Appellant,

v                                                                    No. 346508
                                                                     Ingham Circuit Court
ROBERT S. LABARRE,                                                   Family Division
                                                                     LC No. 09-002722-DM
               Defendant-Appellee.


Before: CAVANAGH, P.J., and STEPHENS and O’BRIEN, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order declining to modify joint legal custody
or parenting time. Plaintiff and defendant had joint legal custody and a parenting-time schedule
with the child, BTL, primarily living with plaintiff during the school year and with defendant
during the summer. Plaintiff asked for sole legal custody and additional parenting time during
the summer. The trial court declined those requests because plaintiff did not show that they were
in BTL’s best interests. We affirm.

                                       I. BACKGROUND

        When the parties signed a consent judgment of divorce in 2010, the parties were awarded
joint legal and physical custody as well as equal parenting time with BTL, who was then two
years old. By the time BTL started school in 2013, plaintiff had moved to Howell, and defendant
had moved to DeWitt. Plaintiff enrolled BTL in school in Brighton, and defendant sought a
change in parenting time. The trial court resolved the parenting-time dispute in March 2014 by
giving defendant parenting time on alternating long weekends from Wednesday evening through
Sunday evening during the school year. During the summer, BTL lived with defendant, and
plaintiff had alternating weekends, from Friday evening through Sunday evening, and one mid-
week visit for approximately 4½ hours. Each party had two full weeks with BTL during the
summer with the option of taking the full two weeks at once or as two one-week blocks.

        In the summer of 2017, plaintiff requested sole legal custody, arguing that she and
defendant had difficulty co-parenting and that defendant would not agree to medical treatment
for the diagnosis and treatment of BTL’s ADHD, BTL’s need for orthodontic work, and BTL’s


                                                -1-
need for vision testing and glasses. Plaintiff also requested an alternating weekly or biweekly
schedule during the summer, which would increase her overall parenting time.

        At the referee hearing, plaintiff testified about defendant’s nonparticipation in the
diagnosis and treatment of BTL’s ADHD. At one point, defendant took BTL off of his stimulant
medication, and BTL exhibited an extrapyramidal effect when he went back on the medication,
which required plaintiff to seek additional treatment to identify a more suitable medication.
With the aid of a pediatric psychiatrist, whom defendant refused to see or take BTL to, BTL
went on a suitable nonstimulant medication. Plaintiff also testified that defendant balked at the
idea of braces for a ten-year-old child, but ultimately agreed to speak with the dentist about
BTL’s teeth. Plaintiff further testified that defendant refused to give plaintiff or the eye doctor’s
office the insurance information for BTL’s eye exam, and defendant insisted on taking BTL to an
eye doctor of his choosing without notifying plaintiff about the appointment. Plaintiff ultimately
chose a pair of glasses after learning that BTL needed them, but defendant refused to pay for the
glasses because he thought plaintiff chose an unnecessarily expensive pair.

        On the issue of parenting time, plaintiff opposed increasing defendant’s overnights with
BTL during the school year to balance out her proposed expanded parenting time during the
summer. Defendant opposed plaintiff’s request for expanded summer parenting time without a
comparable decrease in her parenting time during the school year. Plaintiff stated her intention
to find summer activities for BTL and her belief that increasing parenting time with defendant
during the school year would be detrimental to BTL’s school performance. Plaintiff testified
that, during the summer, she went 13 days without seeing BTL, except for one mid-week visit.

        After the hearing, the referee found that the parties agreed that changed circumstances
warranted revisiting custody and parenting time and that an established custodial environment
existed with both parents. The referee evaluated the best-interest factors under MCL 722.23, and
determined that factors (a), (b), (d), (e), (f), (g), (h), and (k) weighed equally or neutrally. The
referee found that factor (c)—the capacity and disposition to provide the child with food,
clothing, and medical treatment—favored plaintiff because she was better able to get medical
treatment for BTL, while defendant delayed or made it inconvenient for plaintiff to get BTL
treatment. The referee found that factor (j) weighed against both parties because they had
difficulty keeping their personal conflict separate from their co-parenting. The referee weighed
factor (l) in favor of joint legal custody and directed the parties to work harder to be proper joint
legal custodians. The referee noted that defendant had become more engaged in BTL’s medical
treatment and concluded that both parties had “unclean hands” when it came to joint legal
custody. The referee instructed the parties to seek judicial intervention to resolve disputes rather
than resorting to unilateral action. The referee stated, however, that modification of legal
custody may be warranted in the future if the necessity for judicial intervention became
excessive. The referee ultimately concluded that plaintiff had not shown by clear and convincing
evidence that granting her sole legal custody would be in BTL’s best interests.

       The referee also evaluated the parenting-time factors under MCL 722.27(a)(7), and
concluded that factors (a), (b), (c), (d), (h), and (i) did not apply. For factor (e), the referee found
that BTL had acclimated to the travel distance between the parties (who lived an hour apart) with
no negative impact. For factor (f), the referee found that both parents were eager to have
parenting time and exercise their parenting time consistent with court orders or in a manner best

                                                  -2-
suited to BTL’s interests when deviation from the court-ordered schedule was necessary. For
factor (g), the referee found that both parties exercised parenting time regularly. The referee
ultimately declined to expand plaintiff’s summer parenting time because plaintiff had not shown
by a preponderance of the evidence why her proposed change, which would significantly reduce
the number of defendant’s overnights with BTL, would be in the child’s best interests.

        Plaintiff objected to the referee’s recommendations and requested a de novo hearing. At
the de novo hearing, plaintiff stated her willingness to participate in joint co-parenting therapy
and mediation to resolve disputes. Defendant would only agree to joint therapy if plaintiff
underwent individual therapy first, and he would only agree to mediation if the trial court found
it to be the most appropriate dispute resolution method. The parties again testified about their
past disputes in obtaining medical treatment for BTL related to the ADHD diagnosis, the
orthodontic problem, and the child’s vision. Plaintiff stated that BTL had gotten braces since the
referee hearing and that defendant had taken BTL to the orthodontist to fix a problem with the
braces. Defendant continued to give BTL his ADHD medication, although defendant still
refused to take BTL to the psychiatrist.

        Plaintiff continued to ask for alternating weeks in the summer, stating that she went 12 or
13 days without seeing BTL in the summer except for a brief mid-week visit. Unlike at the
referee hearing, plaintiff proposed extending defendant’s parenting time during the school year
by one additional overnight every other week. Defendant objected to this proposal and wanted to
maintain his summer parenting time because he anticipated that parenting time during the school
year would be less available as BTL’s extracurricular activities and social engagements
increased.

        At the conclusion of the hearing, the trial court stated that it would finish reviewing the
transcripts before it rendered a decision. The trial court subsequently signed an order affirming
the referee’s recommendations against changing legal custody or parenting time.

                                         II. DISCUSSION

        Three standards of review apply to child custody disputes. “The great weight of the
evidence standard applies to all findings of fact. Under that standard, the trial court’s findings
will be sustained unless the evidence clearly preponderates in the opposite direction.” LaFleche
v Ybarra, 242 Mich App 692, 695; 619 NW2d 738 (2000) (citation omitted). “The clear legal
error standard applies when the trial court errs in its choice, interpretation, or application of the
existing law.” Shulick v Richards, 273 Mich App 320, 323; 729 NW2d 533 (2006).
“Discretionary rulings are reviewed for an abuse of discretion, including a trial court’s
determination on the issue of custody.” Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363
(2001). These standards also apply to parenting-time disputes. See Pickering v Pickering, 268
Mich App 1, 5; 706 NW2d 835 (2005).

                                     A. LEGAL CUSTODY

        Plaintiff argues that the trial court erred by failing to change joint legal custody to sole
legal custody for plaintiff. We disagree.


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        To modify a custody decision, the moving party must establish by a preponderance of the
evidence that proper cause or changed circumstances warrant a modification of custody. Dailey
v Kloenhamer, 291 Mich App 660, 665; 811 NW2d 501 (2011). Once the trial court finds proper
cause or changed circumstances to revisit custody, the trial court must determine whether the
proposed custody modification would alter the child’s established custodial environment.
Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d 480 (2010). If the requested change would
alter the child’s established custodial environment, the moving party must establish by clear and
convincing evidence that the proposed change in custody would be in the child’s best interests.
Powery v Wells, 278 Mich App 526, 528; 752 NW2d 47 (2008).

        The parties agree that changed circumstances allowed the trial court to revisit custody.
The referee found that BTL had an established custodial environment with both parents.
Plaintiff does not challenge this finding, nor does plaintiff challenge the referee’s findings on the
best-interest factors. Instead, plaintiff argues that the referee’s findings as to the parties’ inability
to communicate and co-parent effectively demonstrated why plaintiff should have been granted
sole legal custody.

        It is true that the referee concluded that best-interest factor (c)—the parties’ capacity and
disposition to provide the child with food, clothing, and medical care—favored plaintiff. The
referee reasoned that plaintiff sought out medical treatment and abided by medical professionals’
recommendations, while defendant failed to engage or delayed in engaging with medical
providers, made it more difficult for plaintiff to obtain medical treatment for BTL, and
unilaterally deviated from the prescription of BTL’s medication. Yet the referee also concluded
that factor (l), which permits consideration of any other factor, weighed in favor of maintaining
joint legal custody because defendant had shown improvement in participating in BTL’s medical
treatment. The referee warned the parties to act as joint legal custodians and to take unresolved
disputes to court rather than resort to unilateral action.

        Plaintiff’s argument that these recommendations demonstrate why she should be granted
sole legal custody is unpersuasive because it does not identify clear and convincing evidence in
favor of granting her sole legal custody. Powery, 278 Mich App at 528. Joint custody “means
that the parents share the decision-making authority with respect to the important decisions
affecting the welfare of the child,” and the trial court must resolve decisions in the child’s best
interests when the parents cannot agree. Lombardo v Lombardo, 202 Mich App 151, 159; 507
NW2d 788 (1993). Plaintiff analogizes this case to Dailey, 291 Mich App at 667-669, in which
this Court affirmed a trial court’s modification of custody from joint legal custody to sole legal
custody to the defendant-father after the parties spent several months exchanging motions
regarding the child’s medical treatment. The trial court in that case found that three factors
favored the defendant-father, and although the parties were unable to make decisions together
about the child’s medical treatment, the defendant-father demonstrated his willingness to
acquiesce to the plaintiff-mother’s demands and remain open to the plaintiff’s opinions, while
the plaintiff did not reciprocate. Id. at 667-668.

        While the instant case has some similarity to Dailey in that defendant contributed to the
parties’ dysfunctional co-parenting related to BTL’s medical treatments, the record supports that
he also participated in decisions for BTL’s medical treatment. For example, defendant agreed to
continue administering ADHD medication to BTL and to have BTL’s orthodontic needs treated,

                                                  -4-
and he agreed that BTL needed glasses. These three concerns—the disputes over BTL’s ADHD
medication, orthodontic treatment, and need for glasses—were the primary disputes underlying
plaintiff’s request for sole legal custody, and unlike in Dailey, these disputes were resolved.
Additionally, unlike in Dailey, the referee found that both parties had “unclean hands.” Indeed,
plaintiff admitted that she resorted to unilateral decision-making because, according to plaintiff,
defendant refused to participate. Thus, while the referee assigned a greater degree of blame to
defendant in his consideration of factor (c), plaintiff bore a portion of the blame, as reflected by
the referee’s finding on factor (l). This further distinguishes this case from Dailey. Plaintiff also
testified that BTL was doing well in school, played basketball, and had many friends. Thus, also
unlike in Dailey, BTL appears to be living a generally healthy and well-adjusted life, despite his
parents’ demonstrated animosity toward each other and its taint on their co-parenting.
Accordingly, the referee’s findings were not against the great weight of the evidence, and the
trial court did not abuse its discretion by maintaining joint legal custody.

       Still, according to plaintiff, the trial court erroneously affirmed the referee’s
recommendation without making independent findings of fact after plaintiff presented new
evidence at the de novo hearing.

        In a custody dispute, a trial court must hold a de novo hearing when a party files a timely
objection to a referee’s recommendation and requests a de novo hearing to present additional
evidence. Cochrane v Brown, 234 Mich App 129, 131-132; 592 NW2d 123 (1999). MCL
552.507 governs the conduct of a de novo hearing and states, in pertinent part, as follows:

              (4) The court shall hold a de novo hearing on any matter that has been the
       subject of a referee hearing, upon the written request of either party or upon
       motion of the court. The request of a party shall be made within 21 days after the
       recommendation of the referee is made available to that party.

                (5) A hearing is de novo despite the court’s imposition of reasonable
       restrictions and conditions to conserve the resources of the parties and the court if
       the following conditions are met:

              (a) The parties have been given a full opportunity to present and preserve
       important evidence at the referee hearing.

              (b) For findings of fact to which the parties have objected, the parties are
       afforded a new opportunity to offer the same evidence to the court as was
       presented to the referee and to supplement that evidence with evidence that could
       not have been presented to the referee.

                (6) Subject to subsection (5), de novo hearings include, but are not limited
       to, the following:

              (a) A new decision based entirely on the record of a previous hearing,
       including any memoranda, recommendations, or proposed orders by the referee.

              (b) A new decision based only on evidence presented at the time of the de
       novo hearing.

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             (c) A new decision based in part on the record of a referee hearing
       supplemented by evidence that was not introduced at a previous hearing.

Under MCL 552.507, a trial court may rely on a referee’s recommendation when a party has
been given the opportunity to present evidence at a de novo hearing. Dumm v Brodbeck, 276
Mich App 460, 465-466; 740 NW2d 751 (2007).

        Plaintiff had the opportunity to present evidence at the de novo hearing that echoed or
supplemented the evidence submitted to the referee, as required by MCL 552.507(5)(b). Yet
none of the evidence she presented was new substantive evidence bearing on legal custody. At
the hearing, plaintiff again testified about defendant’s nonparticipation in the diagnosis and
treatment of BTL’s ADHD, and about the parties’ dispute over having BTL’s vision tested
because of defendant’s refusal to share his wife’s insurance information with plaintiff. Plaintiff
further testified that BTL had gotten braces since the referee hearing and that defendant had
taken BTL to the orthodontist to fix a problem with the braces. She also testified about the cost
of BTL’s glasses. At the referee hearing, plaintiff had testified extensively about defendant’s
nonparticipation in the diagnosis and treatment of the child’s ADHD, in addition to defendant’s
refusal to communicate with her directly about the child’s orthodontic and ophthalmological
care. Thus, the portion of her testimony at the de novo hearing that discussed these issues was
cumulative. The added details that plaintiff testified about at the de novo hearing—namely the
follow-up orthodontic care and the exact cost of BTL’s glasses—did not affect legal custody
because they did not implicate the parties’ communication and co-parenting deficiencies. In fact,
that defendant had taken BTL to the orthodontist to fix a problem with BTL’s braces militated
against plaintiff’s legal objection that defendant remained oppositional; defendant’s taking BTL
to the orthodontist showed that defendant was participating in BTL’s treatment and co-parenting
more effectively. Accordingly, the trial court did not clearly err by adopting the referee’s
recommendation to maintain joint legal custody.

        Nor did the trial court err when it did not independently consider the best-interest factors.
A trial court is required to confirm that the referee considered the child’s best interests or make
its own findings of fact regarding the best-interest factors before modifying custody. Rivette v
Rose-Molina, 278 Mich App 327, 332-333; 750 NW2d 603 (2008). Unlike Rivette, 278 Mich
App at 332, in which the trial court explicitly stated that it would not revisit the referee’s findings
on the best-interest factors, the trial court here stated that it would review the transcripts of the
referee hearing before it rendered a final decision. The trial court also demonstrated that it had
read the referee’s recommendation. Plaintiff criticizes the trial court for entering the de novo
hearing with a bias against plaintiff based on the referee’s recommendation and for commenting
that the referee had a good reputation. However, the trial court’s review of the referee’s
recommendation was legally required, and the trial court’s comment about the referee’s ability
did not reflect an abdication of the trial court’s responsibility to review the best-interest factors
before making a final decision, especially when the trial court held a de novo hearing and stated
at the conclusion of that hearing that it still needed to finish reviewing the transcripts of the
referee hearing. In short, the record shows that the trial court reviewed the best-interest factors,
as it was required to do, before it adopted the referee’s recommendation, as it was permitted to
do. Therefore, the trial court did not err by adopting the referee’s recommendation for joint legal
custody without independently stating findings of fact or conclusions of law.


                                                 -6-
                                     B. PARENTING TIME

      Plaintiff argues that the referee did not adequately consider the issue of parenting time.
We disagree.

        The trial court may modify parenting time only for proper cause or changed
circumstances. Shade v Wright, 291 Mich App 17, 22; 805 NW2d 1 (2010). If the proposed
modification of parenting time would not alter the child’s established custodial environment, the
moving party must show by a preponderance of the evidence that the modified schedule would
be in the child’s best interests. Id. at 23.

        The referee determined that the parties had agreed that changed circumstances warranted
modification of parenting time, the child had an established custodial environment with both
parents, and modifying parenting time required only a showing by a preponderance of the
evidence that the change would be in BTL’s best interests. Plaintiff challenges none of these
conclusions, arguing only that the referee’s recommendation to deny plaintiff’s request to change
summer parenting time did not account for the long periods of time plaintiff did not see the child
in the summer and that plaintiff’s proposed schedule would give defendant more time during the
school year. Plaintiff’s argument overlooks her testimony and the referee’s finding on plaintiff’s
requested summer parenting-time schedule. Initially, defendant proposed increasing his
overnights during the school year to balance out plaintiff’s requested increase in summer
parenting time, but plaintiff opposed this request while continuing to ask for expanded parenting
time during the summer. In addition, although plaintiff testified that she had one mid-week visit
and went 13 days between seeing the child, her summer parenting time consisted of alternating
weekends and one mid-week visit. Therefore, plaintiff had four overnights with the child during
a two-week time span in the summer, and only nine nights passed between the end of one long
weekend and the beginning of the next long weekend plaintiff had with the child. Putting aside
each party’s two uninterrupted weeks during the summer, plaintiff’s testimony that she went 13
days without seeing the child in the summer was inaccurate. On the basis of this testimony and
the parenting-time schedule, the referee correctly found that plaintiff overstated the amount of
time she went without seeing the child in the summer. The referee further noted that plaintiff’s
proposal would significantly reduce the number of defendant’s overnights per year, which was
consistent with plaintiff’s testimony that she did not agree that defendant should have additional
overnights during the school year. The referee also evaluated the parenting-time factors, MCL
722.27a(7), which plaintiff does not challenge on appeal. The referee found that both parents
exercised parenting time regularly and generally in accordance with court orders, except when
the child’s interests required a deviation from the schedule. The referee further found that the
travel distance between the parties did not have a negative impact on the child. Accordingly,
plaintiff’s argument that the referee did not adequately consider the issue of parenting time is
incorrect.

        Plaintiff further argues that the trial court erred by adopting the referee’s recommendation
without making additional findings of fact regarding the parenting-time factors based on new
evidence presented at the de novo hearing, and that it erred by not rectifying the error in the
referee’s failure to consider the issue thoroughly. At the referee hearing, plaintiff testified that
she was not amenable to expanding defendant’s overnight parenting time during the school year.
At the de novo hearing, however, after plaintiff described her request for increased parenting
                                                -7-
time in the summer by alternating weeks, she offered to extend defendant’s alternating long
weekends with BTL during the school year from Sunday evening to Monday morning, offering
defendant two additional overnights per month during the school year. Defendant then stated his
opposition to that compromise and his desire to keep the existing parenting-time schedule
because the child’s anticipated increased extracurricular activities during the school year would
decrease the availability of parenting time during the school year. Plaintiff repeated her
testimony that she went 12 or 13 days without seeing the child in the summer. Plaintiff testified
that she believed her proposed alternating weekly summer parenting-time schedule would benefit
the child by allowing him to participate in more activities during the summer and to see his
school friends more often.

        Again, a party is entitled to a de novo hearing upon the filing of a timely objection to a
referee’s recommendation. Cochrane, 234 Mich App at 133-134. When an issue was not the
subject of a referee hearing, however, “there [is] no basis for a de novo hearing.” Sturgis v
Sturgis, 302 Mich App 706, 708; 840 NW2d 408 (2013). Plaintiff’s request at the de novo
hearing for a modification of parenting time was different from her position at the referee
hearing, and she cites no authority for the proposition that the trial court was required to consider
plaintiff’s changed position. Further, MCL 552.507 requires the trial court to provide the
objecting party with the opportunity to present additional evidence on contested issues.
Cochrane, 234 Mich App at 133-134. The trial court complied with that requirement and
allowed plaintiff to present evidence at the de novo hearing. Yet plaintiff did not present any
supplemental evidence about parenting time that she could not have presented at the referee
hearing. See MCL 552.557(5)(b). Thus, the trial court did not clearly err by adopting the
referee’s recommendation against modifying summer parenting time.

       Affirmed.




                                                              /s/ Mark J. Cavanagh
                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Colleen A. O’Brien




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