Adams v. Adams

• Decision Date: 10 September 1980
• Docket Number: Docket No. 49823
• Citation: 298 N.W.2d 871,100 Mich.App. 1
• Parties: Lynn S. ADAMS, now known as Lynn S. Kucharski, Plaintiff-Appellant, v. Charles W. ADAMS, Defendant-Appellee. 100 Mich.App. 1, 298 N.W.2d 871
• Court: Court of Appeal of Michigan — District of US

Page 871

298 N.W.2d 871

Lynn S. ADAMS, now known as Lynn S. Kucharski Plaintiff-Appellant, v. Charles W. ADAMS, Defendant-Appellee.

Docket No. 49823.

100 Mich.App. 1, 298 N.W.2d 871

Court of Appeals of Michigan.

Sept. 10, 1980.

Rehearing Denied Oct. 9, 1980.

Released for Publication Dec. 9, 1980.

Michael C. [100 MICHAPP 5] Moran, Ann Arbor, for plaintiff-appellant.

Robert L. Henry, Jr., Ann Arbor, for defendant-appellee.

Before J. H. GILLIS, P. J., and KAUFMAN and MAHER, JJ.

J. H. GILLIS, Presiding Judge.

Plaintiff appeals as of right from the January 25, 1980, order of the Washtenaw County Circuit Court awarding a change of custody of her minor daughter, Leslie, from plaintiff to defendant. ¹

Plaintiff raises five issues on appeal, only one of which requires lengthy discussion: whether the [100 MICHAPP 6] trial court's order changing custody of the minor child was premised on "findings of fact against the great weight of the evidence", or evidenced a "palpable abuse of discretion or a clear legal error on a major issue". M.C.L. § 722.28; M.S.A. § 25.312(8). Plaintiff asserts that there is no evidence to support the ordered change but, rather, that the trial judge impermissibly relied on visitation disputes to find that the child's best interests are better served by placing custody in her father.

On January 8, 1976, judgment of divorce was entered in Washtenaw County Circuit Court. At that time, custody of Leslie Adams was given to plaintiff. Thereafter, plaintiff married William Kucharski, and, on September 7, 1977, plaintiff obtained the trial court's permission to move to Wisconsin with Leslie and plaintiff's new husband.

On July 26, 1979, plaintiff petitioned the Washtenaw County Circuit Court for payment of accrued child support, for increase in child support, for attorney fees, and for permission to remove Leslie to Oregon because Mr. Kucharski had changed jobs. Defendant answered plaintiff's petition and requested the court to deny all of plaintiff's requests and award permanent custody of Leslie to defendant or condition plaintiff's right to remove the child to Oregon on a modification of the visitation schedule and plaintiff's agreement to pay travel costs associated therewith.

Plaintiff's petition was argued on August 15, 1979, and the trial court orally granted permission to remove the child to Oregon. The judge also set up a modified visitation schedule, denied the request for attorney fees, and referred defendant's request for custody to the friend of the court. An order in accord with the terms set at the hearing was entered on October 31, 1979. In the meantime, [100 MICHAPP 7] on August 24, 1979, the Washtenaw County friend of the court filed its recommendation that custody of the child remain in plaintiff.

On December 5, 1979, a petition for order to show cause was filed by the Washtenaw County friend of the court. The petition asserted that plaintiff had violated the October 31, 1979, order modifying judgment of divorce by failing to insure that the minor child spent Thanksgiving with her father. An order to show cause was issued on December 5, 1979; plaintiff was ordered to appear and show cause on December 19, 1979. On that date, plaintiff failed to appear personally. The trial court entered an order finding plaintiff in contempt for her failure to obey the October 31, 1979, visitation schedule, expanding the scheduled Christmas visit, and setting hearing on defendant's request for change of custody for January 11, 1980.

On January 4, 1980, plaintiff's present attorney filed an appearance as co-counsel, a motion to quash the finding of contempt, and a motion to dismiss or adjourn the change of custody hearing. These motions were argued on January 9, 1980, and resulted in the trial judge's statement that he probably would set aside the finding of contempt because it was not made on the record in the presence of plaintiff's attorney, but he would reserve his ruling on the question until after the custody hearing. Plaintiff's motion to dismiss or adjourn the change of custody hearing, which was argued to be premised in part on the trial court's earlier statement that he would probably change custody to defendant, was denied. The trial judge stated that he would hear all the evidence before he ruled on the custody question and that plaintiff's request for an adjournment because of the [100 MICHAPP 8] unavailability of an expert witness could not be granted because the hearing would proceed as scheduled.

Although it is not clear from the lower court file, the January 11, 1980, hearing on the proposed custody change was adjourned to January 18, 1980, apparently due to a blizzard in Oregon which prevented plaintiff from traveling. On January 18, 1980, counsel first argued plaintiff's motion to disqualify the trial judge under GCR 1963, 912.2(2), (7). Plaintiff premised her motion on: (1) the trial judge's prior statement that he would award custody to the friend of the court before he heard the evidence because of the visitation disputes, (2) the trial court's personal attitude toward plaintiff's attorney, and (3) plaintiff's fear that the court was biased against her. The trial court denied the motion, and Judge Ager, who heard the same motion immediately thereafter, also denied it. Judge Ager's reasoning was that a showing of actual prejudice was required, and no prejudice had been established.

On January 21, 1980, the custody hearing began. Although neither plaintiff nor the minor child appeared, plaintiff's attorney was present. The only witnesses to testify before the trial court were presented by defendant. At the close of defendant's proofs, the trial court ruled: (1) that the friend of the court's recommendation that plaintiff retain custody of the child was stipulated as an exhibit, (2) that an unsolicited Oregon Conciliation Service report on Leslie was inadmissible under the hearsay rule, and (3) that plaintiff's motion for an adjournment in order to present the author of the foregoing report was denied. Finally, the trial judge set January 23, 1980, as the date he would give his opinion on the merits of the proposed custody change.

[100 MICHAPP 9] On January 23, 1980, the trial judge issued his opinion from the bench. In substance, he discussed each of the criteria for determining the child's best interests under M.C.L. § 722.23; M.S.A. § 25.312(3). First, however, the judge detailed plaintiff's moves to Wisconsin and to Oregon, the order setting forth a "specific visitation schedule" which was "immediately violated * * * within a month" by plaintiff, plaintiff's failure to personally appear before the court on the matter of the violation, the fact that plaintiff's present attorney was the "third attorney involved in this case" on her behalf, the court's belief that plaintiff was in contempt of court, (although it would not hold that she was in contempt because "(a)lthough (he) did mean to hold her in contempt (he) did neglect to do so" at the hearing on the issue), and, finally, his opinion that " * * * there is clear and convincing evidence that there must be a change in custody".

The trial court's review of the statutory criteria provided in pertinent part as follows:

"(a) The love, affection and other emotional ties existing between the competing parties and the child."

Equal.

"(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any."

Plaintiff did not have the requisite capacity and disposition to give Leslie the love or guidance to which she is entitled because plaintiff had " * * * continually done every (thing) that she (could) to avoid th(e) Court's orders in setting up visitation. * * * She (did) not want the child to know its [100 MICHAPP 10] father. * * * (S)he use(d) the child as a tool, too, in the opinion of this Court to do the child harm and to do damage to the child and the father because of her evident hatred for Mr. Adams." Also, the record established that the child had been educated in three different school systems although she is only in fourth grade, but that defendant could provide Leslie with a stable educational environment.

"(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs."

Defendant would be the "better provider" because there was no evidence to establish plaintiff's capability in this regard, because plaintiff and her husband moved from job to job, and because defendant had remained in the same job for approximately 8 years.

"(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity."

The record showed that Leslie had not lived in a stable and satisfactory environment. She had been moved three times " * * * and her mother ha(d) done nothing but * * * abus(e) the child in some manner to get back at her husband and usually this (was) done by visitations."

"(e) The permanence, as a family unit, of the existing or proposed custodial home."

Neither party had been married to their present spouses long enough to make a determination.

"(f) [100 MICHAPP 11] The moral fitness of the competing parties."

Both parties had resolved "any unfitness that they may have had" and both were happily married.

"(g) The mental and physical health of the competing parties."

Equal.

"(h) The home, school and community record of the child."

While Leslie had a school record, she did not have "much" of a home or community record because she had moved too much.

"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference."

No determination was made because plaintiff "denied th(e) court the ability...