Heather Ann Kimball v. Timothy Roland Pearson Jr
335639
| Mich. Ct. App. | Jul 25, 2017Background
- Parties are divorced parents of three minor children; custody order dated October 22, 2012. Defendant (Pearson) moved on July 20, 2016 to modify custody, alleging parental alienation and abuse by plaintiff’s new husband (Rocky).
- Trial court denied the motion without an evidentiary hearing, concluding defendant failed to show proper cause or a change in circumstances; DHHS had not substantiated the abuse allegation.
- Defendant filed a motion for reconsideration attaching additional evidence: two handwritten letters from the children (MP and RP) and a therapist’s letter (Josette Lucci). The court struck the children’s letters and denied reconsideration, finding the evidence could have been filed earlier.
- Lucci’s letter described repeated emotional and physical abuse of DP by the stepfather and allegations of active alienation by plaintiff; combined with an earlier counselor letter (Cardamone), it raised professional concerns about alienation and abuse.
- The Court of Appeals held the trial court did not err in its initial denial but erred by refusing to hold any evidentiary hearing after receiving Lucci’s letter on reconsideration; remanded for an evidentiary hearing limited to whether there has been a material change in circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant met the threshold showing of proper cause or change in circumstances to reopen custody | Plaintiff argued disputes between parents did not rise to proper cause/change; DHHS did not substantiate abuse | Defendant argued new evidence (therapist letters, children’s statements) showed alienation and abuse amounting to proper cause/change | Trial court’s initial denial upheld as not against great weight of evidence, but remanded because later-submitted therapist letter warranted an evidentiary hearing |
| Whether the trial court abused discretion by denying motion for reconsideration without a hearing | Plaintiff maintained reconsideration should be denied because evidence could have been submitted earlier and children’s letters were improperly public | Defendant argued the new therapist letter and prior counselor letter raised serious, previously undetermined issues affecting children’s welfare | Court held the trial court erred in refusing to consider Lucci’s letter and should have held an evidentiary hearing despite timing concerns because child welfare overrides typical reconsideration limits |
| Whether the appellate court may review an award of attorney fees related to the reconsideration motion | Plaintiff: any fee award exists and is proper | Defendant: appealed fee award as improper | Court: Fee issue not before it — no fee order in record, so dispute not ripe for review |
Key Cases Cited
- Kubicki v. Sharpe, 306 Mich. App. 525 (discusses threshold requirement of proper cause or change in circumstances under MCL 722.27(1)(c))
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (defines proper cause and change of circumstances standards for custody modification)
- Corporan v. Henton, 282 Mich. App. 599 (applies great-weight-of-the-evidence review to trial court’s threshold determination)
- Fletcher v. Fletcher, 447 Mich. 871 (explains great-weight standard and primary goal of Child Custody Act: children’s best interests)
- Charbeneau v. Wayne County General Hospital, 158 Mich. App. 730 (motion for reconsideration principles; evidence could have been presented earlier)
- Molloy v. Molloy, 247 Mich. App. 348 (procedure for obtaining children’s custody preferences via in camera interview)
- King v. Michigan State Police Department, 303 Mich. App. 162 (ripeness principle: appellate review requires a final order; contingent claims are not ripe)