Barretta v. Zhitkov
| Docket Number | 364921,365078 |
| Decision Date | 24 August 2023 |
| Parties | MARIYA BARRETTA, Plaintiff/Counterdefendant-Appellant, v. MAKSIM ZHITKOV, Defendant/Counterplaintiff-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2016-847920-DM
Before: BOONSTRA, PJ., and LETICA and FEENEY, JJ.
In Docket No. 364921, Plaintiff/Counterdefendant, Mariya Barretta, appeals as of right the trial court's January 24, 2023 order which suspended plaintiff's parenting time with her minor child, AZ. The January 24, 2023 order also prohibited plaintiff from contacting AZ. In Docket No 365078, plaintiff appeals by delayed leave granted[1] four orders, one of which is the January 24, 2023 order. The three remaining orders are the trial court's (1) December 19, 2022 order that temporarily suspended plaintiff's parenting time and ordered her to immediately return AZ to the care of Defendant-Counterplaintiff, Maksim Zhitkov; (2) a January 11 2023 order that granted plaintiff "limited and supervised" parenting time with AZ; and (3) a January 13, 2023 order that suspended plaintiff's parenting time and ordered her not to have contact with AZ. Because the trial court erred in various respects, we vacate and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
The parties are the parents of AZ, who was born during the parties' marriage. A May 16, 2018 judgment of divorce granted the parties joint legal and physical custody of AZ.[2] The parties were granted "week on/week off parenting time."[3] After entry of the judgment of divorce, the parties filed various motions concerning custody and parenting time. Each party continuously alleged the other engaged in wrongful conduct and both the number and severity of the allegations continued to escalate throughout the proceedings. AZ began to develop significant mental health issues. In July 2022, the trial court appointed a guardian ad litem (GAL).
On December 15, 2022, defendant moved the trial court to immediately suspend plaintiff's parenting time. In relevant part, defendant alleged: (1) AZ missed or was tardy to school during plaintiff's parenting time;[4] (2) plaintiff was suffering from mental health issues; (3) plaintiff was attempting to alienate AZ from defendant, in part, by convincing him to fabricate sexual assault allegations; and (4) plaintiff failed to take AZ to certain appointments to address his mental health issues. On December 16, 2022, the trial court entered an order, finding it was in AZ's best interests to temporarily suspend plaintiff's parenting time.[5] The trial court held it would hear oral arguments on December 21, 2022.
Plaintiff moved to have the December 16, 2022 order immediately set aside, arguing it was not in AZ's best interests to suspend her parenting time and place AZ in defendant's sole care. According to plaintiff, AZ had alleged defendant and defendant's son from a previous relationship, IZ, had sexually assaulted him. Plaintiff also alleged defendant failed to take AZ's mental health issues seriously even though they involved suicidal ideation, anxiety, and depression. In a December 19, 2022 order, the trial court denied the motion and again held plaintiff's parenting time was temporarily suspended pending the December 21, 2022 hearing. Plaintiff was ordered to immediately place AZ in defendant's care. Thereafter, AZ was admitted to a psychiatric hospital.
On December 21, 2022, the referee heard oral arguments before the parties and the referee appeared before the trial court. The GAL recommended plaintiff be granted supervised parenting time with AZ, who was still in treatment for his mental health issues, including after his release. During the 15-minute hearing, however, the GAL presented no evidence or explanation regarding why supervised parenting time was necessary. There was a delay in entering an order after the December 21, 2022 hearing.[6] In the meantime, AZ was released from the hospital, he returned to defendant's care, and plaintiff applied for and received an ex parte Personal Protection Order (PPO) against defendant on January 3, 2023.[7] On January 11, 2023, the trial court entered an order. In relevant part, it stated:
Plaintiff immediately moved the trial court to lift the supervision requirement for her parenting time and "restore her parenting time." Plaintiff also moved the trial court to order that defendant was limited to supervised parenting time, arguing defendant failed to address AZ's mental health needs after AZ was released from inpatient treatment.[9] The next day, on January 12, 2023, plaintiff moved the trial court to immediately suspend defendant's parenting time because AZ was hospitalized on the evening of January 11, 2023, while in defendant's care, alleging she was the only parent equipped to ensure AZ received the necessary treatment. Defendant opposed plaintiff's motions, arguing plaintiff had defied the trial court's orders suspending her parenting time by communicating with AZ, which is what led to the January 11, 2023 "mental health episode." Defendant alleged he was ensuring AZ received necessary treatment.
On January 13, 2023, the trial court entered an "Order Re: Emergency Motion", in relevant part, holding that plaintiff failed to "demonstrate by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice or that notice itself will precipitate adverse action before an order can be issued." The order also stated that the court would "entertain oral argument" on plaintiff's motion on January 18, 2023. The trial court further found it was in AZ's best interests to temporarily suspend plaintiff's parenting time, "including no phone, email, or third party contact," pending oral argument.
On January 18, 2023, the trial court heard oral arguments on plaintiff's motions. It was noted by the GAL and defendant that medical professionals believed AZ's mental health issues improved after plaintiff's parenting time and contact with AZ was suspended.[10] Plaintiff vehemently objected to her parenting time continuing to be suspended, noting it would change the established custodial environment. Plaintiff argued "she would be entitled to a prompt evidentiary hearing on that" so the trial court could "make findings." After hearing the parties' arguments and the GAL's recommendation that plaintiff's parenting time be suspended, the trial court adopted the GAL's recommendation. The trial court stated: "This is not permanent, mom, it's temporary...."[11] When asked about the order of reference contained in the January 11, 2023 order, the trial court noted an evidentiary hearing concerning custody was not yet necessary because a change of custody had not occurred. According to the trial court, doing a review hearing with the referee was the preferred course of action:
Well, I think it should be a review and like what's the evidentiary hearing going to be? There's no change of custody right now. You know you may have the psychological and have these reviews and whatever's going on in your life be like this wasn't serving our child.. ..I mean, right. Like what's the evidentiary hearing going to be on? The review could go smashingly well and mom you could agree to certain things, dad you could agree to certain things and if not then I guess you're going to have your-file a new motion and we'll get you an evidentiary hearing ASAP.
When reminded that there was already an order for an evidentiary hearing to cover custody and parenting time, the court responded,
On January 23, 2023, the trial court signed an order, which was not entered into the register of actions until January 24, 2023. The trial court ruled, in relevant part: The claim of appeal in Docket No. 364921 followed. Thereafter, in Docket No. 365078, plaintiff filed a delayed application for leave to appeal (1) the January 24, 2023 order; (2) the January 13, 2023 order; (3) the January 11, 2023 order; and (4) the December 19, 2022 order. We granted leave and consolidated the matters. Barreta v Zhitkov, unpublished order of the Court of Appeals, entered March 30, 2022 (Docket No. 365078).
"This Court . . . reviews de novo questions of constitutional law." Bailey v Antrim County, 341 Mich.App 411, 420; N.W.2d (2022) (alteration in original; quotation marks and citation omitted). This Court reviews "de novo a trial court's interpretation and application of a statute," id. at 421, and court rules, In re Sanders, 495...
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