If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PATRICIA LABARRE,

Plaintiff-Appellant,

UNPUBLISHED

August 15, 2019

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 midweek visit for approximately 41⁄2 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
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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 
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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, 
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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.
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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 
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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