Harris v. Harris
| Docket Number | 362552 |
| Decision Date | 21 December 2023 |
| Parties | REBECCA LYNN HARRIS, Plaintiff-Appellant, v. BRANDON L. HARRIS, Defendant-Appellee |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2021-504585-DM
Before: PATEL, P.J., and SWARTZLE and HOOD, JJ.
Plaintiff Rebecca Lynn Harris (Rebecca) appeals as of right the trial court's judgment of divorce, which awarded her and defendant, Brandon Harris (Brandon), joint legal and physical custody of their two minor children, and awarded equal parenting time under a 2-2-5-5 schedule.[1]Rebecca challenges the trial court's custody and parenting-time decisions and refusal to award interim child support. For the reasons stated in this opinion, we affirm.
Rebecca and Brandon met in 2017, while they were both employed at the same company. They married in December 2018. Rebecca gave birth to their daughter, VH, in December 2019. Approximately a year later, in November 2020, Rebecca gave birth to the couples' son, EH, who was born with fused kidneys, a medical condition that requires lifetime medical monitoring. Brandon also has an older son, JH, from a prior marriage and who lives with his ex-wife. In December 2020, Rebecca and the parties' two children left the marital home in Troy and began residing with her mother. Shortly thereafter, Rebecca filed this action for divorce.
VH was approximately two years old at the time of the custody hearing in November 2021. EH was approximately one year old. Brandon remained in the marital home for the duration of the lower court proceedings. For approximately the first three months after the separation, Brandon did not regularly see his children. Pursuant to an April 2021 interim parenting-time order, however, the children were with Brandon every weekend, and with Rebecca during the week. At the time of the custody hearing, therefore, the children had been living with Brandon regularly every weekend for nine months.
In mid-May 2021, Rebecca sought interim child support and an order compelling the sale of the parties' marital home. After Brandon responded, and the court held a hearing, the court entered an order modifying the status-quo order to provide that Brandon was to be solely responsible for payments related to the marital home, and that the parties would pay their own personal expenses. The order also reserved for mediation or trial the issue of temporary child support.
By court order, the parties underwent a psychological evaluation with Richard W. Wooten, Ph.D. After meeting with each party individually several times in June 2021, Dr. Wooten issued an extensive report detailing his findings. Part of his report detailed Rebecca's accusations of domestic abuse. Dr. Wooten also observed the parties with their two children. He addressed the statutory best-interest factors and opined that the children had an established custodial environment with Rebecca. Ultimately, Dr. Wooten recommended that the parties share joint legal and physical custody of the children, and that both parties attend therapy. He also recommended a "2-2-5-5" schedule for parenting time.
A central issue on appeal is Rebecca's failure to timely file her witness list. On July 9, 2021, the deadline for filing witness lists, Brandon timely filed his witness list. On July 14, 2021, after Rebecca had already missed the witness list filing deadline, the parties stipulated to an adjournment of the August 16, 2021 trial date. The parties requested the adjournment because they had not received the psychological evaluation report from Dr. Richard Wooten, who had evaluated both parties, and mediation was scheduled for August 10, 2021. In a stipulated order, the court rescheduled the trial to October 1, 2021. The stipulated order also provided that "[a]ll dates in the court's Domestic Scheduling Order issued on March 17, 2021 will be extended an equivalent number of days to the adjournment of the trial date."
Rebecca filed her witness list on September 13, 2021. Brandon filed a motion to preclude Rebecca from calling any witnesses at trial. He argued that pursuant to the July 14, 2021 stipulated order, the new discovery cutoff date was September 1, 2021. Accordingly, the parties had to file their witness lists by August 25, 2021. Brandon argued that because Rebecca's witness list, filed on September 13, 2021, was untimely, she should be precluded from calling witnesses at trial. He further asserted that he was prejudiced by Rebecca's violation of the scheduling orders. In response, Rebecca attributed the late filing of her witness list to an "administrative error." She also filed a motion for a second adjournment of trial, arguing that if her late filing of her witness list prejudiced Brandon, the solution was to adjourn the scheduled October 1, 2021 trial.
On September 20, 2021, the trial court entered an order granting Brandon's motion to strike Rebecca's witness list but rejected both sides' positions, finding:
[B]oth sides incorrectly state the procedural posture of the case. The [July 14, 2021] adjournment order extended all deadlines "an equivalent number of days to the adjournment of the trial date." This would, for example, move the trial briefing deadline to one week prior to the new trial date. The order did not, however, alter any deadline tied to the discovery cutoff. Discovery closed two days after the adjournment order [i.e., July 16, 2021]; it was not extended. Because the discovery cutoff in the scheduling order was a discrete date independent of the trial date, it is unclear what an "equivalent number of days to the adjournment of the trial date" would constitute in terms of a deadline.
The court concluded that Rebecca's untimely filing of her witness list warranted discovery sanctions, stating:
Given the untimely filing of [Rebecca's] witness list by several months, and only a few weeks before trial, [Rebecca] may only call herself and [Brandon] as witnesses during her case in chief. [Rebecca] may not call, during her case in chief, any other witnesses on [Brandon's] witness list. [Rebecca] may utilize rebuttal witnesses, if appropriate, but their testimony may only be offered for rebuttal purposes. [Footnotes omitted.]
The day after the court entered its order, Rebecca filed a motion to bar Brandon's witnesses. She argued that because Brandon's list identified witnesses generically, and failed to include their names and addresses, the witnesses should be struck. Rebecca asserted that the vagueness of Brandon's witness list precluded her from conducting any discovery.
The next day, Rebecca filed her exhibit list in which she identified as possible exhibits "text message chains" between her and Brandon. That same day, she filed an amended motion to adjourn the October 1, 2021 trial date.
The trial court entered an order granting Rebecca's request to adjourn trial and rescheduled the matter for November 29, 2021. The court also clarified that Regarding Brandon's witness list, the court found that "[w]hile mother's position is well taken, insofar as she cannot reasonably prepare for trial without knowing who may be called during father's case-in-chief, the objection itself is premature." Accordingly, the court found that it would be Brandon's burden to establish an appropriate foundation for any witnesses he intended to call and then, if appropriate, Rebecca could raise any objections, including surprise or lack of notice.
Trial began in November 2021 and lasted two days. At the outset, the court indicated that the only witnesses available to testify if called by either party would be the parties and Dr. Wooten. The court clarified that Brandon could call Dr. Wooten and that Rebecca could cross-examine him. The parties had previously stipulated to the admissibility of Dr. Wooten's extensive report. Thereafter, Rebecca called Brandon as her first witness. Brandon was equivocal on the issue of domestic violence, admitting that Rebecca moved out of the marital home "because of the domestic violence" and admitting to verbal "abuse," but denying specific assaultive acts aside from two instances where he restrained Rebecca in order to leave a room or the house. Rebecca then testified on her own behalf. Because the parties were unable to complete Rebecca's testimony, the matter was adjourned and scheduled to resume in January 2022.
In mid-January 2022, Rebecca filed an amended exhibit list adding as potential "rebuttal exhibits" several text messages between her and Brandon occurring between January 13, 2021, and February 8, 2021. Brandon moved to strike the amended exhibit list as untimely, noting that under the scheduling order, exhibits were required to be exchanged three weeks before trial. Brandon further noted that all of the proposed additional exhibits could have been included in Rebecca's original exhibit list because the proposed exhibits were text messages from early 2021. The trial court, adopting Brandon's reasoning, granted the motion to strike Rebecca's newly identified exhibits.
When trial resumed in late January 2022, the parties and the court completed their examination of Rebecca. Rebecca's attorney then indicated that he wished to present evidence on rebuttal: recalling the parties and offering additional "rebuttal exhibits." The trial court indicated that Rebecca could be recalled in rebuttal, but it reminded her attorney that it had ruled earlier that no additional exhibits would be admitted. Regarding recalling Brandon, the court noted that Rebecca's attorney had thoroughly...
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