Order 

  February 1, 2005
  
  ADM File No. 2004-40
  
  
  Amendment of Rule 3.215
  of the Michigan Court Rules
  (Domestic Relations Referees)
                        
  
   On order of the Court, notice of the proposed changes and an opportunity
  for comment in writing and at a public hearing having been provided, and
  consideration having been given to the comments received, the following
  amendment of Rule 3.215 of the Michigan Court Rules is adopted, effective May 1,
  2005.
  
        [Additions are indicated by underlining and 
          deletions are indicated by strikeover.]
  

ICLE Editor's Note:
  
  
  [Italicized, bracketed text] indicates text that has been deleted.
  
  
  Bold text  indicates new text.
  
  Rule 3.215 Domestic Relations Referees
  
       (A)  Qualifications of Referees. A referee appointed [by the chief judge of the
       circuit] pursuant to MCL 552.507(1) must be a member in good standing of the
       State Bar of Michigan. A non-attorney friend of the court [who is not a
       lawyer, but] who [is] was serving as a referee [at the time
       of adoption of this rule,] when this rule took effect on May 1, 1993,
       may continue to serve.  [A successor must meet the qualifications established by
       this rule.
                 
       ](B)  Referrals to the Referee.
  
            (1)  The chief judge may, [refer motions of a particular kind to a
            referee,] by administrative order, direct that specified types of
            domestic relations motions be heard initially by a referee.
                 
            (2)   To the extent allowed by law, the judge to whom [an] a
            domestic relations action is assigned may refer other motions in
            that action to a referee
            
                 (a)  on written stipulation of the parties,
     
                 (b)  on [written] a party's motion [by a
                 party], or
            
            (c)  on the judge's own initiative.
            
            (3)     In domestic relations matters, the judge to whom an action is
            assigned, or the chief judge by administrative order, may authorize referees
            to conduct settlement conferences and, subject to judicial review,
            scheduling conferences.
                 
       (C)   Scheduling of the Referee Hearing.
            (1)  Within 14 days after receiving a motion referred under subrule
            (B)(1) or [a referral under subrule] (B)(2), the referee must
            arrange for service of a notice scheduling a referee hearing
            [schedule the] [matter for hearing.]
            
            [(2)]   [The referee must serve a notice of hearing] on the attorneys
            for the parties, or on the parties if they are not represented by counsel.  The
            notice of hearing must clearly state that the matter will be heard by a referee.
            
  
            (2)     The referee may adjourn a hearing for good cause without
            preparing a recommendation for an order, except that if the adjournment is
            subject to any terms or conditions, the referee may only prepare a
            recommendation for an adjournment order to be signed by a judge.
            
       (D)   Conduct of Referee Hearings.
     
            (1)  The Michigan Rules of Evidence apply to referee hearings.
     
            (2)  A referee must provide the parties with notice of the right to request a
            judicial hearing by giving
            
                 (a)  oral notice during the hearing, and
            
                 (b)  written notice in the recommendation for an order.
            
            (3)  Testimony must be taken in person, except that, for good cause, a
            referee may allow testimony to be taken by telephone or other electronically
            reliable means[, in extraordinary circumstances].
            
            (4)  An electronic or stenographic record must be kept of all hearings.
  
       (E)  Posthearing Procedures.
  
            (1)  Within 21 days after a hearing, [except for a hearing on income
            withholding,] the referee must either make a statement of findings on
            the record or submit a written, signed report containing a summary of
            testimony and a statement of findings.  In either event, the referee must
            make a recommendation for an order and arrange for it to be submitted to
            the court and the attorneys for the parties, or the parties if they are not
            represented by counsel.  A proof of service must be filed with the court. 
            [If the recommendation for an order is] [approved by the court
            and no written objection is filed with the court clerk] [within 21
            days after the recommendation is served on the attorneys for the]
            [parties, or the parties if they are not represented by counsel, the order
            will] [take effect.
            ]
                 (a)     The referee must find facts specially and state separately
                 the law the referee applied.  Brief, definite, and pertinent findings
                 and conclusions on the contested matters are sufficient, without
                 overelaboration of detail or particularization of facts.      
            
                 (b)     The referee's recommended order must include:
                      (i)     a signature line for the court to indicate its
                      approval of the referee's recommended order;
  
                      (ii)    notice that if the recommended order is approved
                      by the court and no written objection is filed with
                      the court clerk within 21 days after the
                      recommended order is served, the recommended
                      order will become the final order;
  
                      (iii)   notice advising the parties of any interim effect
                      the recommended order may have; and
                 
                      (iv)    prominent notice of all available methods for
                      obtaining a judicial hearing.
  
                 (c)   If the court approves the referee's recommended order,
                 the recommended order must be served within 7 days of
                 approval, or within 3 days of approval if the recommended order is
                 given interim effect, and a proof of service must be filed with the
                 court.  If the recommendation is approved by the court and no
                 written objection is filed with the court clerk within 21 days after
                 service, the recommended order will become a final order.
  
            (2)  If the hearing concerns income withholding, the referee must arrange for a
            recommended order to be submitted to the court forthwith.  If the
            recommended order is approved by the court, it must be given immediate
            effect pursuant to MCL 552.607(4).  
  
            (3)  A party may obtain a judicial hearing on any matter that has been the subject
            of a referee hearing and that resulted in a statement of findings and a
            recommended order by filing
            
                 [(a)]   [a written objection and notice of hearing within 14 days
                 after the referee's recommended order is served on the attorneys for
                 the parties, or the parties if they are not represented by counsel, if the
                 order is for income withholding, or
                 
                 (b)]  a written objection and notice of hearing within 21 days after
                 the referee's recommendation for an order is served on the attorneys
                 for the parties, or the parties if they are not represented by
                 counsel[, if] [the order concerns any other matter]. 
                 The objection must include a clear and concise
                 statement of the specific findings or application of law to
                 which an objection is made.  Objections regarding the
                 accuracy or completeness of the recommendation must state
                 with specificity the inaccuracy or omission.
            
            (4)   The party who requests a judicial hearing must serve the objection
            and notice of hearing on the opposing party or counsel in the manner
            provided in MCR 2.119(C).
                 
            (5)     A circuit court may, by local administrative order, establish
            additional methods for obtaining a judicial hearing.  
  
            (6)   The court may hear a party's objection to the referee's
            recommendation for an order on the same day as the referee hearing,
            provided that the notice scheduling the referee hearing advises the parties
            that a same-day judicial hearing will be available and the parties have the
            option of refusing a same-day hearing if they have not yet decided whether
            they will object to the referee's recommendation for an order. 
                 
            (7)   The parties may waive their right to object to the referee's
            recommendation for an order by consenting in writing to the immediate
            entry of the recommended order.
  
       (F)  Judicial Hearings.
    
            (1)  The judicial hearing must be held within 21 days after the written objection
            is filed, unless time is extended by the court for good cause.
       
            (2)  [If both parties consent, the judicial hearing may be based solely on the
            record of the referee hearing.]  To the extent allowed by law, the
            court may conduct the judicial hearing by review of the record of the referee
            hearing, but the court must allow the parties to present live evidence at the
            judicial hearing.  The court may, in its discretion:
         
                 (a)     prohibit a party from presenting evidence on
                 findings of fact to which no objection was filed;
  
                 (b)     determine that the referee's finding was conclusive as to
                 a fact to which no objection was filed;  
  
                 (c)     prohibit a party from introducing new evidence or
                 calling new witnesses unless there is an adequate showing that the
                 evidence was not available at the referee hearing;
  
                 (d)     impose any other reasonable restrictions and conditions
                 to conserve the resources of the parties and the court.
  
            (3)   If the court determines that an objection is frivolous or has been
            interposed for the purpose of delay, the court may assess reasonable costs
            and attorney fees.
  
  (G)     Interim Effect for Referee's Recommendation for an Order.
  
            (1)     Except as limited by subrules (G)(2) and (G)(3), the court may,
            by an administrative order or by an order in the case, provide that the
            referee's recommended order will take effect on an interim basis pending a
            judicial hearing.  The court must provide notice that the referee's
            recommended order will be an interim order by including that notice under a
            separate heading in the referee's recommended order, or by an order
            adopting the referee's recommended order as an interim order.  
  
            (2)     The court may not give interim effect to a referee's
            recommendation for any of the following orders:
            
                 (a)   An order for incarceration;
  
                 (b)   An order for forfeiture of any property; 
  
                 (c)   An order imposing costs, fines, or other sanctions.
                 [
            ](3)     The court may not, by administrative order, give interim
            effect to a referee's recommendation for the following types of orders:
            
                 (a)   An order under subrule (G)(2);
  
                 (b)   An order that changes a child's custody;
  
                 (c)   An order that changes a child's domicile;
  
                 (d)   An order that would render subsequent judicial
                 consideration of the matter moot.
       
  Staff Comment:  The February 1, 2005, effective May 1, 2005, amendments
  implement 2004 PA 210, which redefines "de novo hearings" and allows trial courts to give
  interim effect to a referee's recommended order pending a hearing de novo pursuant to
  Michigan Court Rules.
  
       The staff comment is not an authoritative construction by the Court.