Baker v. Baker

• Citation: 411 Mich. 567,309 N.W.2d 532
• Decision Date: 01 September 1981
• Docket Number: No. 6,Docket No. 63660,6
• Parties: Phillip BAKER, Plaintiff-Appellant, v. Tanny BAKER, Defendant-Appellee. Calendar411 Mich. 567, 309 N.W.2d 532
• Court: Supreme Court of Michigan

Page 532

309 N.W.2d 532

Phillip BAKER, Plaintiff-Appellant, v. Tanny BAKER, Defendant-Appellee.

Docket No. 63660.

Calendar No. 6.

411 Mich. 567, 309 N.W.2d 532

Supreme Court of Michigan.

Argued May 6, 1980.

Decided Sept. 1, 1981.

Peter J. Riebschleger, Sumpter & Loznak, P. C., Cheboygan, for plaintiff-appellant.

Joel W. Gillard, Gillard, Bauer & Mazrum, Alpena, for defendant-appellee.

RYAN, Justice.

This is a child custody case whose subject is an 11-year-old boy, the son of divorced parents.

Our order granting leave to appeal obligates us to answer two questions:

1. Whether, on the facts of this case, there existed at the time of trial an established custodial environment from which the trial court was by statute forbidden to remove the minor child, absent clear and convincing evidence that the child's best interests required a change of custody;

and

2. "(W)hether, under the facts of this case, the trial court erroneously overlooked the importance of long-term community contacts as a factor contributing to a finding of 'custodial environment'." 407 Mich. 947.

We answer both questions in the negative and affirm the judgment of the Court of Appeals which affirmed the decision of the trial court to award custody of the child of the parties to appellee.

Our decision involves consideration of the interplay of three provisions of the Child Custody Act: ¹ §§ 3, 7(c) and 8.

It is important to note at the outset that while our review of the trial court's custody determination in this case is de novo, Hensley v. Hensley, 357 Mich. 3, 97 N.W.2d 615 (1959), we are nevertheless bound by § 8 of the Child Custody Act, which states:

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue." ² (Emphasis added.)

We understand that provision to require us to affirm the trial judge's determination that on this record the best interests of the child involved would be best served by ordering him placed in the custody of appellee unless we find that the trial court committed clear legal error in making that order, made findings of fact against the great weight of the evidence, or committed a palpable abuse of discretion. For the reasons stated hereafter, we conclude he did not.

I

Appellee, Tanny Baker, was first married in November, 1967. A child, Sharyll Anne, was born of the marriage, which ended in divorce. Appellee then married appellant Phillip Baker and on August 5, 1970, a son, Arthur Lee, whose custody is at issue before us, was born of that marriage. Sharyll Anne was later adopted by appellant. From the time of Arthur's birth and until June, 1978, the two children lived with their parents in the marital home in the area of Alpena, Michigan.

On June 18, 1978, Mrs. Baker took the two children to Colorado for a vacation with her parents. One month later she and the children returned to Michigan, and she informed her husband that she wanted a divorce. On July 21, 1978, Mr. Baker filed a complaint for divorce in the Alpena Circuit Court. No order for custody of either of the children was entered at that time. Later, at an informal conference held at the office of the Friend of the Court, the parties agreed that Mrs. Baker and both children would return to Colorado where they would establish a new home. In accordance with that understanding, Mrs. Baker and the two children moved to Buena Vista, Colorado, on July 31, 1978, and took up residence.

On September 12, 1978, Mr. Baker appeared in Colorado unannounced, physically removed his son Arthur from Mrs. Baker's home and immediately returned to Michigan with the child. He had not consulted the boy's mother in advance or advised her of his intention to remove the child from her custody. Sharyll Anne remained with her mother in Colorado.

On September 16, 1978, Mr. Baker obtained from the circuit court in Alpena an ex parte interim order for custody of Arthur. He made no request for custody of Sharyll Anne. After a contested hearing on October 3, 1978, the court ordered that custody with Mr. Baker be continued. Arthur remained in Alpena with his father until the trial.

The trial was held on November 2, 1978. At its conclusion the court granted a divorce and awarded custody of both children to the appellee. As part of the property division, the court directed appellant to repay the sum of $4,800 to appellee's parents for what was characterized as an "advancement" made to the parties during their marriage. ³

II

For decades the trial and appellate judiciary of this state struggled with the delicate task of resolving child custody disputes, a task made both frustrating and unsatisfactory by the need to apply inexact standards of largely unproven significance to factual scenarios of limitless variation. Courts were required to evaluate a plethora of sociological, economic, and psychological data in an effort to reach custody decisions intended, in the last analysis, to serve the affected child's best interests. Predictably, the myriad factors evaluated by trial courts in child custody disputes were given uneven consideration and only such significance as a particular judicial fact-finder deemed appropriate in the exercise of his own, virtually unfettered, discretion. ⁴ The standards for determining the child's best interests were essentially subjective.

By enacting the Child Custody Act of 1970, and particularly § 3 thereof, the Legislature attempted, among other things, to standardize the criteria for resolving child custody cases by declaring that the ultimate standard for the award of custody the best interests of the child is to be determined by evaluation and consideration of ten specifically identified factors. ⁵ In adopting § 7(c) of the act, the Legislature intended to minimize the prospect of unwarranted and disruptive change of custody orders and to erect a barrier against removal of a child from an "established custodial environment", except in the most compelling cases. Section 7(c) provides:

"The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered." (Emphasis added.)

Complementing the foregoing provision is § 8, quoted supra, which limits the power of an appellate court to disturb a trial court's custody decision to those instances in which the "trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error".

III

Appellant claims the trial court committed clear legal error in failing to apply the clear and convincing evidence standard of § 7(c) to the determination whether, at the time of trial, young Arthur Baker's best interests required a change of custody to appellee. He also claims that even if the clear and convincing evidence standard of § 7(c) was not applicable in this case, the trial court's finding that the best interests of the child required a change of custody was nevertheless contrary to the great weight of evidence. Specifically, appellant argues that the evidence shows that from the time of Arthur's birth until the date of trial, November 2, 1978, with the exception of "two occasions of one and one and one-half months, respectively", the boy was living in an "established custodial environment" in Alpena within the meaning of § 7(c) of the act. Consequently, he maintains, the court was forbidden to order a change of custody to appellee unless it first found, by "clear and convincing" evidence, that the boy's best interests required that he be taken from his father's care and sent to live with his mother in Colorado.

Appellee contends, on the other hand, that the child was not living in an "established custodial environment" with appellant at any time, as that expression is used in § 7(c); that in resolving the custody dispute at trial the court was bound only to determine the child's best interests; and that the court's custody decision was factually and legally correct.

IV

It is clear that absent the existence of an "established custodial environment", the trial judge was free to award custody of the boy either to his mother or to his father simply by determining the child's best interests, as that standard is defined in § 3 of the act. Therefore, to determine whether the trial court's authority to order a change of custody in November, 1978, depended upon a showing by "clear and convincing evidence", as opposed to a mere preponderance of evidence that the child's best interests called for a change of custody, we must first decide whether the prerequisite "established custodial environment" existed.

We are provided a measure of legislative guidance as to the meaning of an "established custodial environment" by § 7(c) of the act which we repeat here for ease of reference:

"The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered."

Certainly the orders of custody that entered on September 16 and...