I.
PERTINENT FACTS AND PROCEDURAL HISTORY
This
case has a lengthy and contentious history, both in the trial
court and in numerous prior appeals to this
Court.[1] In an opinion issued in a previous appeal
a panel of this Court summarized the history of the
parties' relationship and divorce as follows:
Plaintiff and defendant married in 2010. Early in their
marriage, the parties lived in Connecticut, and they both
worked on Wall Street in New York City. Defendant was an
investment banker, and plaintiff worked as a statistician.
At some point, defendant, who had both a law degree and an
MBA, lost his investment job, and he changed careers,
switching to law. Plaintiff also changed careers, deciding
to pursue a doctorate degree in sociology. The parties
moved to
Michigan-despite plaintiff's reluctance-in 2014 when
defendant accepted a position in the federal
prosecutor's office. Defendant currently works as an
assistant United States attorney. Following the
parties' divorce, plaintiff finished her doctorate
degree at the State University of New York Albany, and she
now works at the University of Michigan as a research
investigator and research scholar.
The parties have two children together: BK and SK.
Plaintiff filed for divorce in November 2015. Eventually,
pursuant to a consent judgment of divorce entered on April
21, 2017, defendant received sole physical and legal
custody of the children, and plaintiff received supervised
parenting time at Catholic Social Services. The reasons for
the supervised parenting time were plaintiff's
mentalhealth problems involving manipulation and alienating
behavior, such as fabricated ideas of child abuse. The
divorce judgment provides that plaintiff "has a
serious personality disorder, and serious problems with
manipulation that will require much psychotherapeutic
effort." The treatment directives in the divorce
judgment specified that the long-term goal was for
plaintiff to "be able to present believable evidence
that her mental health is being properly treated and that
she is not endangering the children by the kind of
alienating behavior that Defendant reasonably fears.
Fabricated ideas of child abuse are dangerous not only to
Defendant, but to the minor children's burgeoning
self-concept."
The divorce judgment was agreed to after both parties were
evaluated by Dr. Pamela Ludolph, Ph.D., a court-appointed
psychologist, and Dr. Elissa P. Benedek, M.D., a
psychiatrist. Notable to plaintiff's arguments on
appeal, Dr. Ludolph diagnosed plaintiff with borderline
personality disorder. Dr. Benedek, though not definitively
diagnosing borderline personality disorder, also concluded
that plaintiff exhibited borderline personality
"traits." Undisputedly, plaintiff has a long
history of mental-health problems, and she has also been
diagnosed with major depressive disorder related to events
in late 2014 and early 2015. By the time of the
parties' divorce, plaintiff's depression was in
remission, but, according to Dr. Ludolph and Dr. Benedek,
likely to reoccur. Dr. Ludolph recommended treatment for
plaintiff. The divorce judgment expressly incorporated Dr.
Ludolph's mental-health determinations and treatment
recommendations, including requirements that plaintiff
treat with a psychologist, a psychiatrist, and take any
medication as prescribed.
With regard to defendant, when evaluating the parties, Dr.
Ludolph noted that defendant had problems with anger, and
under the divorce judgment, defendant was also ordered to
seek mental-health treatment. When evaluating the parties,
Dr. Ludolph also considered the parties' respective
parenting skills and their relationship with each other,
and she opined that, given the acrimonious relationship
between the parties, coparenting would be
"impossible." In view of the parties'
respective strengths and weaknesses, and their inability to
coparent, Dr. Ludolph recommended that defendant receive
sole physical and legal custody.
As noted, the divorce judgment mentions plaintiff's
"alienating behavior" and "fabricated
ideas" of child abuse, which everyone agreed can be
harmful to
children. In this regard, over the last several years both
before and after entry of the divorce judgment, plaintiff
has made various complaints about defendant, including
allegations of child abuse, all of which defendant denies
and none of which have been substantiated. Plaintiff first
accused defendant of physically and sexually abusing BK in
2017 during the divorce proceedings. Plaintiff's claims
were investigated by police; BK was forensically
interviewed; and the claims were not substantiated. Despite
her allegations of child abuse, plaintiff, at other times,
admitted that the children were "safe" with
defendant, including during her testimony at a recent
evidentiary hearing.
Plaintiff has also, at various times, accused defendant of
domestic violence against her. Since the divorce, plaintiff
has more recently filed for, and then withdrawn, requests
for personal protection orders (PPOs), she has accused
defendant of breaking into her home to steal her passport
(which she later found in her house), she has written to
the State Bar Commissioner, she has posted about defendant
on Facebook, and during a parenting-time visit, she
attempted to photograph SK's genital area in an effort
to establish that SK had sexually transmitted genital warts
when, in actuality, SK had a common childhood condition
called "molluscum contagiosum," which is more
commonly referred to as "water warts." [See
Kuebler v Kuebler, unpublished per curiam opinion
of the Court of Appeals, issued November 18, 2021 (Docket
Nos. 354327, 355934, and 356641, and 356709), pp 2-3.]
In
December 2017, plaintiff filed a motion titled as a motion to
"move parenting time." Substantively, she sought
unsupervised parenting time and a substantial increase in the
amount of her parenting time. Plaintiff's basic position
was that a change in parenting time was warranted because,
contrary to Dr. Ludolph's diagnosis, she did not have
borderline personality disorder. She supported this assertion
with opinions from a licensed social worker as well as her
therapist, Dr. Melody Vaitkus; both opined that she did not
have borderline personality disorder. Dr. Philip Saragoza, a
psychiatrist, likewise stated that plaintiff did not have
borderline personality disorder, although he noted examples
of plaintiff "engaging in deceit/manipulation."
Following the filing of this motion, the parties engaged in
almost three years of litigation, both in the trial court and
in multiple appeals to this Court. Ultimately, following an
evidentiary hearing, the trial judge, Judge Archie C. Brown,
denied plaintiff's motion, concluding that plaintiff had
failed to establish proper cause or a change of circumstances
to revisit the issue, when plaintiff's manipulative and
alienating behavior had not improved but actually
"worsened" over time.
Plaintiff
sought delayed leave to appeal the trial court's denial,
which this Court granted. On appeal, this Court affirmed
Judge Brown's decision, detailing at some length
plaintiff's behavior, including her fabrications about
defendant and her efforts to malign him, and the potentially
harmful effects of such behavior on the children. See
id. at 8-14. This Court focused on plaintiff's
observable conduct, recognizing that "[a] particular
diagnosis, or lack thereof, does not necessarily make a
parent inherently fit or unfit to see his or her
children." Id. at 13. But, this Court
explained, "[i]n this case it was-and
remains-plaintiff's manipulative and alienating behavior,
including her fabricated allegations of child abuse against
defendant, that warranted the supervised parenting-time
arrangement provided in the judgment of divorce."
Id. This Court
issued its previous opinion, resolving the appeals from Judge
Brown's orders, on November 18, 2021.
In the
meantime, in January 2021, the case was reassigned to Judge
Tracy E. Van den Bergh. In March 2021, while appeals in this
Court remained pending, plaintiff again moved the trial court
to modify custody and parenting time, seeking joint legal and
joint physical custody of the children. According to
plaintiff's newest motion, the Department of Licensing
and Regulatory Affairs, Bureau of Professional Licensing
(LARA) had recently filed an administrative complaint against
Dr. Ludolph that included allegations that an expert hired by
LARA had concluded that Dr. Ludolph's evaluation of
plaintiff was professionally incompetent. In her motion,
plaintiff argued that the LARA complaint provided grounds for
questioning Dr. Ludolph's diagnosis of borderline
personality disorder. Because the LARA complaint was filed
after the evidentiary hearing before Judge Brown, plaintiff
asserted that she could not have presented this information
to Judge Brown and that it constituted a new proper cause or
change in circumstances.[2]
Following
the filing of plaintiff's newest motion, Judge Van den
Bergh entered several interim orders changing parenting time
and effectively changing custody, without holding an
evidentiary hearing and without complying with the procedures
in the Child Custody Act, MCL 722.21 et...
