Considerations for Appeal of Discovery Rulings in Michigan Family Law

Doug Dante

DougDante1@yahoo.com

December 18, 2008

I am not a lawyer and this is not legal advice.

Many people complain that they can't get accurate information from the other
party. They can't get the other parent's income information, can't get the other
parent to testify under oath, can't get the court to require the other party to
respond to an interrogatory to get the latest pay stub of the other party, etc
Legally, I understand all of these these processes to be Discovery. See Michigan
Court Rules:

http://coa.courts.mi.gov/rules/

In the rules, note Chapter 2, Civil Procedure, and in particular “Subchapter 2.300
Discovery:

http://coa.courts.mi.gov/rules/documents/1Chapter2CivilProcedure.pdf

Note also that Subchapter 2.100 applies to the manner in which discovery and
other motions are processed. These rules appear to me to be cumbersome, and I
would discuss the use of a professional process server with my lawyer. More
information is available via Wikipedia here:

http://en.wikipedia.org/wiki/Service_of_process

Briefly:

"Discovery of material information is obtainable by use of depositions,

interrogatories, requests for the production and inspection of writings
and other materials, requests for admission of facts, and physical
examinations."

http://legal-dictionary.thefreedictionary.com/abuse+of+discretion
If a judge rules against my discovery motion, I would consider some of the
following information in partnership with my lawyer:

Michigan's Court of Appeals has held:

Civil Procedure - Discovery - Review - Standard

A trial court’s decision on a discovery motion is reviewed for an abuse

of discretion, but an issue of statutory interpretation is reviewed de
novo as a question of law.

http://coa.courts.mi.gov/Digest/DigestDetail?mode=view&digestId=69
495

I might also consider constitutional claims, arguing that the decision violates my
constitutional rights.

If a statute covered the discovery, I might appeal on the grounds that the court
failed to properly interpret the statute, which can be reviewed de novo, meaning
that the court of appeals isn't supposed to show any particular deference to the
trial court for that particular decision.

The most significant statutory language with regards to discovery in family law is
likely MCL 722.30:

"722.30 Access to records or information by noncustodial parent.

"Sec. 10.
"Notwithstanding any other provision of law, a parent shall not be
denied access to records or information concerning his or her child
because the parent is not the child's custodial parent, unless the
parent is prohibited from having access to the records or information
by a protective order. As used in this section, “records or information”
includes, but is not limited to, medical, dental, and school records,
day care provider's records, and notification of meetings regarding
the child's education."

http://www.legislature.mi.gov/mileg.aspx?page=getObject&objectNa
me=mcl-722-30

De novo review is helpful because the court of appeals will issue rulings as a strict
interpretation of the law, allowing the judge no particular discretion when
interpreting the law (although discretion may be applied when interpreting the
facts of the case).
The statutory language, to me, may include the right to any information
concerning the child, including information not written down, and might include
the right to question the other party or witnesses such as grandparents under
oath regarding information about the child that can't be obtained via written
records.

However, in many cases, a statute may not cover a discovery motion explicitly.
Here I would consider with my lawyer an appeal based on the argument that the
judge abused his/her discretion when denying my discovery motion. This can be
done independently or along with an appeal based on statutory language.

Michigan's Supreme Court held:

In Department of Transportation v Randolph

Appeal and Error - Review - Standard - Abuse of Discretion -
Standard

An abuse of discretion standard of review acknowledges that there

are circumstances in which there is no single correct result. When a
trial court selects one of the principled outcomes, it has not abused its
discretion and the appellate court must defer to its judgment.

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=63105&mode=
view#396045

Michigan's Court of Appeals held:

In Kyser v Kasson Township

Appeal and Error - Review - Standard - Abuse of Discretion -
Standard

An abuse of discretion occurs when a court chooses a decision which

falls outside the range of reasonable and principled outcomes.

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=67895&mode=
view#442865

In re Kurzyniec Estate
Administrative Law - Agency - Decision - Review - Abuse of
Discretion

"To reverse an agency's decision as an abuse of discretion, a court

must find the result so palpably and grossly violative of fact and logic
that it evidences a perversity of will, a defiance of judgment or an
 exercise of passion or bias. To be arbitrary is to decide without
reference to principles, circumstances or significance."

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=14015&mode=
view#62585

If I were to appeal a discovery motion, I might argue that the decision was outside
the range of reasonable and principled outcomes, or conversely, that it was either
unreasonable or unprincipled.

One definition of both words is:

principled:

ADJECTIVE: In accordance with principles of right or good conduct:

ethical, moral, proper, right, righteous, rightful, right-minded,
virtuous. See RIGHT.

http://www.bartleby.com/62/89/P1178900.html

reasonable:

ADJECTIVE: 1. Kept within sensible limits: conservative, discreet,

moderate, restrained, temperate. See PLAIN, RESTRAINT. (more at
the link below)...

http://www.bartleby.com/62/68/R1236800.html

Here I might argue based on the definitions of principled and reasonable, and
their synonyms, that the decision was not principled and/or not reasonable. I
believe that either is sufficient. For example:

The judge's decision to deny my discovery motion to cross examine

the other party under oath, in the face of a report by his/her servant
soandso which admits the lies of the other parent into evidence as
fact, was not balanced, or sensible, making this decision an
unreasonable abuse of discretion, and it is therefore a violation of my
fourteenth amendment due process right to the care and custody of
my child.

Or:
 The judge's decision to deny my discovery motion of the the
grandparents knowledge of the abuse my child continues to suffer
serves the purpose of helping his abuser cover for the abuse of my
child, is not in accordance with the principles of good conduct, and is
therefore a violation of my fourteenth amendment due process right
to the care and custody of my child

Work with your lawyer to determine if an appeal is right for you and the proper
wording for that appeal.

Let's look at the antonyms of principled and reasonable:

unprincipled

ADJECTIVE: Lacking scruples or principles: conscienceless, ruthless,

unconscionable, unethical, unscrupulous. See HONEST.

http://www.bartleby.com/62/64/U1626400.html

unreasonable

ADJECTIVE: 1. Beyond all reason: obscene, outrageous,

preposterous, ridiculous, shocking, unconscionable. (more at link
below )...

http://www.bartleby.com/62/80/U1628000.html

I might work with my lawyer to argue based on the definitions of unprincipled and
unreasonable that the decision was a violation of my due process rights. Since a
decision can't be both unprincipled and principled, or unreasonable and
reasonable, it follows that such a decision is not reasonable or not principled,
respectively. Again, I believe that either is sufficient. For example:

When the judge refused to allow my discovery motion for an

interrogatory of the other parent to determine in his/her own words
how much parenting time I had been denied, and the lies that he/she
had told our child, the judge knew that he/she was allowing the other
parent to destroy the loving and mutually beneficial relationship that
our child and I share. To ignore the suffering of a child and parent is
ruthless, conscienceless, and represents an unprincipled abuse of
discretion. This decision is therefore a violation of my fourteenth
 amendment due process rights to the care and custody of my child.

Or

When the judge denied my motion to request production of my child's

educational records from the schools, even though I have a long
history as a loving and involved parent, based on the idea that my
gaining knowledge of my child's grades is somehow detrimental to my
child, with no basis in evidence, and no other reasons presented,
his/her decision was shocking and outrageous, making it an
unreasonable abuse of discretion. This decision is therefore a
violation of my fourteenth amendment due process rights to the care
and custody of my child.

Although it relates to Administrative Law, I could also try to use the language of
the In re Kurzyniec Estate decision. So I must argue that the result is palpably and
grossly violative of fact and logic, and that it evidences one of a perversity of will,
a defiance of judgment, an exercise of passion, or an exercise of bias. It probably
also should be arbitrary, decided without reference all of principles,
circumstances, and significance.

For example:

When the judge ruled that I may never see my child again
unsupervised, based on my truthful claim that my child had suffered
bruises and other injuries in the care of the child's other parent, the
result was palpably and grossly violative of fact and logic, as I had
only tried to protect my child, and had never done, nor attempted to
do, my child any harm. This decision reflects a perversity of will and
an exercise of bias, as the court is bent on stripping my child and I of
our relationship with one another, regardless of the facts. The
decision was arbitrary, as the judge failed to reference the principles
which led to his/her decision, the circumstances of the decision which
led to the application of those principles, and the significance of
his/her decision. This decision is therefore a violation of my
fourteenth amendment due process rights to the care and custody of
my child.

The most significant constitutional claim which I would consider with my lawyer is
the fourteenth amendment due process right of a parent to the care and custody
of his/her child. It's helpful to review this.

The US Supreme Court held that:

 "In light of this extensive precedent, it cannot now be doubted that
the Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the care,
custody, and control of their children."

Troxel V Granville
http://www.law.cornell.edu/supct/html/99-138.ZO.html

Michigan's Supreme Court has held:

"Constitutional Law - Review - Standard

Constitutional questions are reviewed de novo on appeal."

http://coa.courts.mi.gov/Digest/DigestDetail?mode=view&digestId=69
435

They've also held that:

Appeal and Error - Stare Decisis - Federal Decision - Federal Law -

Supreme Court/Lower Courts

State courts are bound by the decisions of the United States Supreme
Court construing federal law, but are not bound by the decisions of
lower federal courts. Rather, the decisions of lower federal courts are
merely persuasive authority.

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=62695&mode=
view#392845

However, Michigan's Court of Appeals previously has also held that due process
protections are weaker for some aspects of child custody, such as parenting time
enforcement.

"Domestic Relations - Child Custody - Due Process

A parent's interest in the care and custody of his minor child is an

 important interest which merits due process protection, but a custody
decree which does not sever the parental bond and is subject to
modification is not entitled to due process rights to the same extent
as in a termination of parental rights proceeding. In custody disputes,
the overriding concern is the welfare of the child."

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=34375&mode=
view#170525

An “important interests” seems weaker than a “fundamental right” to me.

However, please note that the Michigan Appeals opinion calling care and custody
“an important interest” was from 1997. This ruling predates the 2004 Michigan
Supreme Court ruling on which held that US Supreme Court rulings, such as
Troxel, which called care and custody a “fundamental right”, were precedents that
must be respected by all Michigan Courts. If presented with an appeal and given
the opportunity to distinguish between these two concepts of “important
interests” or “fundamental right”, either the Court of Appeals may reverse itself
based on the Michigan Supreme Court and US Supreme Court rulings, the
Michigan Supreme Court may reverse the Michigan Court of Appeals, or the US
Supreme Court may reverse them both. I hope it doesn't have to go that far!

However, even within the framework of “important interests”, and even in “[not]
to the same extent” as termination proceedings, the due process rights of parents
to the care and custody of their children do exist! It's difficult to determine what
the limits are, the the court has not made published rulings that specify the limits.

Based on my reading of the Michigan Appellate Digest, the Michigan Court of

Appeals will review constitutional claims differently depending on whether or not
they are preserved, which I understand to mean that it was first brought before
the lower court. Generally, I believe that a court of appeals will give more
scrutiny to constitutional claims first brought before the lower court and then
denied rather than those not preserved.

"Appeal and Error - Constitutional Issues - Consideration - Not

Preserved
"Constitutional Law - Review - Standard - Not Preserved

"An unpreserved claim of constitutional error is reviewed for plain

error

"Appeal and Error - Constitutional Issues - Review - Standard

"Constitutional Law - Review - Standard

"Constitutional issues are reviewed de novo on appeal."

 http://coa.courts.mi.gov/Digest/DigestDetail?digestId=46345&mode=
view#271495

Therefore, if I am concerned that I might make a constitutional claim later on

appeal, I might discuss with my lawyer the idea of being ready to make the
constitutional claim at the trial court first, so that the trial court has a chance to
rule on it, on the hope that this may help me on appeal. My lawyer is responsible
for devising a trial strategy in conjunction with me, and he/she can work with me
to find the best way to handle this situation.

I might argue something like, my fourteenth amendment due process rights to the
care and custody of my child give me the right to this information.

The Michigan Supreme Court said:

"Due Process - Procedural - Standard

"Procedural due process requires that an individual be given notice

and an opportunity to be heard in a meaningful manner before being
subjected to a deprivation of life, liberty or property."

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=56935&mode=
view#358375

Obviously, property includes a person's paycheck, so my expectation is that these

due process requirements should apply to child support obligations or other
transfers of money or property.

Because parenting is a fundamental liberty interest, I also personally believe that

these same due process limits apply to all procedures which limit my parenting,
except where such requirements are in opposition to the welfare of the child.
When the court rules that a discovery motion is in opposition to the welfare of the
child (such as ex-parte orders), it must do so in a manner which does not abuse
its discretion. That is, it must act in a principled and reasonable manner. See
above.

Please note that, to me, “welfare” is not the same as “best interests”. The
Michigan Court of Appeals limited due process rights based on the welfare of the
child, not the best interests. If I were before a judge and he/she refused my
discovery motion on the grounds that it is against the best interests of the child, I
would discuss the situation with my lawyer and consider objecting, possibly
arguing that the decision violated by due process rights above.
Also, please note that in the case of a child support or parenting time order, or
other order of the court, I may be later called before the court for being in
contempt of its orders. At that time, my due process rights come into play. I
would discuss with my lawyer arguing by analogy that if I'm to have such rights
when answering for my actions as a result of the order, that I should be given the
same rights when it's written. Otherwise, the court may end up writing an order
and causing myself and my children all sorts of consternation, only to discover
later when my new rights are available that the court made a decision that is
incorrect, based on evidence that could have been admitted right at the
beginning. It is therefore proper to apply at least the same level of due process
protections to the decision of making an order that will be used to enforce that
same order.

Courts - Contempt - Due Process - Requirements

http://coa.courts.mi.gov/Digest/DigestDetail?digestId=66605&mode=
view#429055

There are many possible ways to present possible due process violations, and a
full review here is impractical.

If I were you, I would consider going to the Michigan appellate digest and typing in
"due process" and discussing relevant rulings and results with my lawyer.

http://coa.courts.mi.gov/Digest/digestSearchInput.jsp?option=subtopic

Also, please note Subchapter 2.000 General Provisions, Rule 2.003 Disqualification
of Judge, and in particular 2.003 (C)(1) Time For Filing, which is 14 days. If my
lawyer and I decide to motion to disqualify, I would discuss with my lawyer the
timing of an appeal such that my judge has the opportunity to approve or deny
my disqualification motion, so that I might bring both issues before the Court of
Appeals simultaneously with his/her help. According to Rule 7.101, the time for
taking an appeal is 21 days after the entry of the order or judgment appealed
from.

It also may be possible for my lawyer and myself, working together, to change the
judge's mind on the matter without an appeal through a motion for
reconsideration. I believe that this can also change the time available for appeal.
See Subchapter 2.600 Judgments and Orders / Postjudgment Proceedings for more
information. It is possible that my lawyer and I can work together to prepare an
appeal and, in effect, ask the judge in my case to consider the appeal first. It
might work. I would talk with my lawyer.

Best of luck!