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Ludwig v. Ludwig

Court of Appeals of Michigan

December 12, 2017

SUSAN REANEL LUDWIG, Plaintiff-Appellant,
CRAIG COOPER LUDWIG, Defendant-Appellee.

         Oakland Circuit Court Family Division LC No. 2008-749066-DM

          Before: Jansen, P.J., Cavanagh and Cameron, JJ.

          PER CURIAM.

         In this consolidated appeal involving a custody dispute, plaintiff appeals by leave granted[1] the trial court's order to begin family therapy and reunification between defendant and the parties' two minor children. We affirm.

         I. BACKGROUND

         Plaintiff and defendant were married in 1994 and had three children[2] during the course of their marriage. On July 21, 2008, plaintiff filed a complaint for divorce, and shortly after, she requested the trial court order defendant to undergo a psychological evaluation. The trial court then ordered both parties to submit to a psychological evaluation with a psychologist. The assessment of defendant was largely negative.[3] On February 19, 2009, the trial court ordered defendant to vacate the marital home, allowing supervised parenting time until further order of the court.

         On May 6, 2009, the parties signed a consent judgment of divorce where plaintiff was granted sole legal and physical custody of the two minor children. Defendant was granted supervised parenting time, but at some point in 2009, plaintiff obtained a personal protection order (PPO) against defendant. She obtained a second PPO in 2010. Around that time, defendant joined the Army and was eventually deployed overseas. He returned in December of 2011 and began living in Texas. Upon his return, he attempted to arrange supervised parenting time with the minor children, but claimed that plaintiff prevented contact with the children. In 2012, defendant was found in violation of the 2010 PPO by visiting one of the children at her school, and defendant's parenting time was suspended until further order of the court.

         In 2013, defendant requested to have unsupervised parenting time, claiming he had been attending regular therapy with two different counselors in Texas. Plaintiff argued that any parenting time with defendant would not be in the best interests of the children, considering his history of psychological problems. She insisted that defendant submit to another independent psychological evaluation. After a hearing on defendant's motion, the trial court ordered defendant to submit to a second evaluation with a Michigan-based psychologist agreed on by the parties. On November 26, 2014, which was 18 months after the trial court entered its order, Dr. Jackson E. Turner evaluated defendant in Michigan without plaintiff's approval. It appears from the record that defendant moved from Texas back to Michigan at some point during this time. Turner concluded that defendant was capable and ready to interact positively with the children and recommended that the process of reunification begin with gradual steps leading to one-on-one parenting time. Plaintiff argued that the evaluation from Turner should not be considered because the trial court's order required that the parties agree on a psychologist. The trial court expressed its concern that the minor children were not involved with Turner's evaluation, and it ordered another psychological evaluation to be performed by Dr. James N. Bow, and requiring that he work with all members of the family in order to get a more expansive view of the situation.

         Bow diagnosed defendant with persecutory type delusion disorder and concluded that defendant's prognosis was poor, and he would likely never be entirely free of the condition. He recommended that defendant engage in therapy, focusing on a number of specified concerns. Thus, the trial court ordered defendant to participate in therapy with Dr. John Cotter, a treating psychologist. On September 23, 2015, Cotter began treating defendant with a focus on the concerns identified by Bow.

         On December 23, 2015, the trial court granted plaintiff's motion to move to California with the children. By January 29, 2016, defendant had completed 12 sessions with Cotter. Thereafter, Cotter recommended the trial court begin the reunification process between defendant and the children. After a hearing on defendant's motion to adopt Cotter's recommendation, the trial court ordered defendant to undergo a reevaluation with Bow, but he refused to reevaluate defendant, claiming it would amount to a conflict of interest. Defendant then asked the trial court to modify its previous order and allow Cotter to conduct the reevaluation, but plaintiff argued that a different psychologist should perform the reevaluation. The trial court heard arguments on May 4, 2016, and it ordered Cotter to review all of the psychological evaluations, to have Cotter and defendant discuss what the children had said about defendant, to address the other issues with defendant, and then to inform the trial court regarding defendant's progress with his mental health. From March 23, 2016, to September 15, 2016, defendant visited Cotter 20 more times.

         The trial court held a hearing on September 15, 2016, and Cotter testified as a fact witness. According to the trial court, the purpose of the hearing was to evaluate whether Bow's recommendations for treatment had been followed, whether defendant was making progress, and to determine whether it would be appropriate at that time to initiate the reunification process. After three days of direct and cross-examination of Cotter, the trial court had the parties submit closing arguments via briefing regarding whether defendant had sufficiently improved to begin the first step of Cotter's plan for reunification. Plaintiff argued that the reunification process should not begin until the trial court conducted a full evidentiary hearing.

         The trial court entered an opinion and order on January 23, 2017, holding that defendant had "satisfactorily complied with substantial hoops, ordered at both [p]laintiff's request and the court's own caution, to demonstrate a reunification process should begin." The trial court ordered the following: (1) the minor children shall participate with a therapist in California for a minimum of four sessions within 45 days, (2) after the children's therapy, and within 60 days, a reunification video conference must be conducted between defendant, the children, the therapist in California, and Cotter, (3) after the first reunification conference, the frequency, duration, and method of continued contact will be at the therapists' discretion, and (4) after six months, the Friend of the Court will review the matter in order to determine if, at that time, a motion to change parenting time should be entertained. The trial court made clear that it was not changing parenting time, concluding "that therapeutic contact does not constitute a 'change' in parenting time as [d]efendant will not be having any 'parenting time, ' supervised or otherwise, at this juncture and through this medium."

         Plaintiff argues on appeal that the trial court committed clear legal error by ordering the minor children and defendant to engage in family therapy with therapists, all by way of video conference, as part of the reunification process without first holding an evidentiary ...

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