Jurisdiction is with the Circuit Court for interlocutoy appeals of a probate court interlocutory order.

In Button v Oakland Livingston Human Service Agency, Unpub Per Curiam Opinion of the Court of Appeals, (#314952, 8/14/2014) the Court of Appeals held that the circuit court had jurisdiction to decide OLHSA’s application for leave to appeal the probate court order denying defendants’ motions for summary disposition. The order that OLHSA sought to appeal to the circuit court was an interlocutory order. See Mossing v Demlow Prods, Inc, 287 Mich App 87 780 (2010) (stating that an order denying summary disposition “is inherently interlocutory.).

 

The court rules governing probate court proceedings contain a subchapter on appeals, 5.800. MCR 5.801(D) addresses appeals from interlocutory orders of the probate court, and provides in pertinent part: An interlocutory order, such as an order regarding discovery; ruling on evidence; appointing a guardian ad litem; or suspending a fiduciary for failure to give a new bond, to file an inventory, or to render an account, may be appealed only to the circuit court and only by leave of that court. . . . [Emphasis added.]  The court rules governing appeals to the circuit court similarly provide that the circuit court has appellate jurisdiction over interlocutory orders of the probate court. MCR 7.103(B)(1)(a) provides that a “circuit court may grant leave to appeal from . . . a judgment or order of a trial court when . . . no appeal of right exists.” (Emphasis added; paragraph structure omitted). For the purposes of subchapter 7.100, “trial court” is defined as “the district, probate, or municipal court from which the ‘appeal’ is taken.” MCR 7.102(9).

the permissible use of two-way video technology

In People v Shaw, Unpub Per Curiam Opinion of the Court of Appeals (#314865, 8/21/2014) the Court held that the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses.  Unless MCR 6.006(A) specifically allows for the hearing to be conducted via two-way interactive video technology, defendant must expressly agree to appear via video or (s)he has a right to be personally present at the hearing

 

“The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . . the right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.” Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978 (2004) (quotation marks omitted). This right applies to the sentencing hearing, as well as the trial itself. People v Mallory, 421 Mich 229, 247 (1984); People v Palmerton, 200 Mich App 302, 304 (1993). The Michigan Court Rules further provide that a trial court may use two-way interactive video technology to conduct the following proceedings between a courtroom and a prison, jail, or other location: initial arraignments on the warrant or complaint, arraignments on the information, pretrial conferences, pleas, sentencings for misdemeanor offenses, show cause hearings, waivers and adjournments of extradition, referrals for forensic determination of competency, and waivers and adjournments of preliminary examinations. [MCR 6.006(A) (emphasis added).] “[W]e interpret court rules using the same principles that govern the interpretation of statutes.” People v Buie, 491 Mich 294, 304 (2012) (quotation marks omitted).

 

“It is a basic principle of statutory construction that the express mention of one thing implies the exclusion of other similar things.” People v Oswald, 208 Mich App 444, 446 (1995); see also People v Carruthers, 301 Mich App 590, 604 (2013). Thus, the plain language of MCR 6.006(A) indicates that a trial court may not use a video conference to secure a defendant’s appearance when sentencing him for felony offenses rather than misdemeanor offenses. Here, defendant was being sentenced for his felony convictions. MCL 750.224f(5); MCL 750.227b(1). Therefore, absent a defendant’s express agreement to appear via video, see People v Carter, 462 Mich 206, 217-218 (2000) (noting that a party can waive a “broad array of constitutional and statutory provisions”), a trial court must secure the defendant’s physical appearance at sentencing.

The reasonable preference of the child.

In Kubicki v Sharpe, Jr, __ Mich App __ (#317614, 8/28/2014) the Court of Appeals held that the circuit court legally and harmfully erred by failing to consider the child’s wishes when it made its best-interest determination.

In regard to factor i, the court stated, “The parties did not want the [c]ourt to interview the child. Therefore, his preference has not been considered by the [c]ourt.” Regardless whether the parties wished for an interview, the court was affirmatively required to consider the child’s preference.

 

“One of the . . . factors a trial judge must consider in a custody dispute is the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.” Bowers v Bowers, 190 Mich App 51, 55 (1991) (quotation marks and citation omitted). “Children of six, and definitely of nine, years of age are old enough to have their preferences given some weight in a custody dispute, especially where there was a prior custody arrangement.” Id. at 55-56.

 

At the time of the evidentiary hearing, the child was 10 years old, and as such, was “definitely . . . old enough to have [his] preference[] given some weight . . . .” Id. “The trial court’s failure to interview the child[] was error requiring reversal.” Id. at 56.
 

Because the circuit court did not consider DLS’s preference, we must vacate the circuit court’s order, and remand for a new custody hearing.