Duperon v. Duperon, Docket No. 106865

• Decision Date: 10 April 1989
• Docket Number: Docket No. 106865
• Parties: Janet Kay DUPERON, formerly known as Janet Kay Winowiecki, Plaintiff-Appellant, v. Wilfred DUPERON, Defendant-Appellee. 175 Mich.App. 77, 437 N.W.2d 318
• Court: Court of Appeal of Michigan — District of US

Page 318

437 N.W.2d 318

Janet Kay DUPERON, formerly known as Janet Kay Winowiecki Plaintiff-Appellant, v. Wilfred DUPERON, Defendant-Appellee.

Docket No. 106865.

175 Mich.App. 77, 437 N.W.2d 318

Court of Appeals of Michigan.

Submitted Oct. 13, 1988.

Decided Feb. 21, 1989.

Released for Publication April 10, 1989.

[175 MICHAPP 78] Jeffrey J. McManus, P.C. by Jeffrey J. McManus, Traverse City, for plaintiff-appellant.

Aylsworth & Aylsworth, P.C. by Glenn Aylsworth, Traverse City, for defendant-appellee.

Before BEASLEY, P.J., and JOHN H. GILLIS and SCHMA, ^* JJ.

BEASLEY, Presiding Judge.

Plaintiff, Janet Kay Duperon, and defendant, Wilfred Duperon, were divorced in 1982. The parties were granted joint legal and physical custody of their two minor children--the children to spend alternate months with each. In 1987, plaintiff petitioned for sole custody of the [175 MICHAPP 79] children. Following a hearing, the trial court denied plaintiff's petition. Plaintiff appeals as of right.

First, plaintiff contends that the trial court erred in refusing to consider the report and recommendation prepared by the Friend of the Court (FOC). M.C.L. Sec. 552.505(d); M.S.A. Sec. 25.176(5)(d) requires the FOC to investigate relevant facts and prepare a written report and recommendation prior to adjudication of a custody dispute. ¹ The FOC's report and recommendation is not admissible as evidence unless both parties agree to admit it in evidence. ² However, the report may be considered by the trial court as an aid to understanding the issues to be resolved. ³ The trial court's ultimate findings relative to custody must be based upon competent evidence adduced at the hearing. ⁴ Thus, while the FOC's report and recommendation may not form the basis for the trial court's findings, it may be used to establish a background and context for the proceedings.

While the trial court may consider the FOC report and recommendation, plaintiff is unable to direct our attention to any legal authority in support of the proposition that it must do so. Plaintiff claims that Hoffman v. Hoffman ⁵ dictates the result she seeks. In Hoffman, this Court did hold that the trial court erroneously refused to consider a FOC report. However, the basis for that ruling was that the trial court had, due to a mistaken, though understandable, interpretation [175 MICHAPP 80] of the case of Dempsey v. Dempsey, ⁶ viewed consideration of the report as prohibited. In Hoffman, this Court declined to endorse Dempsey 's apparent proscription and found the trial court's refusal to consider the report on the basis of Dempsey erroneous. We do not read Hoffman as establishing a blanket mandate that the trial court consider FOC reports, and we find no error in the trial court's refusal to consider the report here.

Second, plaintiff contends that the trial court erred in determining that a "custodial environment" had been established with both parties, thus requiring plaintiff to show by clear and convincing evidence that a change in custody was warranted before her petition could be granted. ⁷ A custodial environment is established if, over an appreciable time, the children naturally look to the parent in that environment for guidance, discipline, the necessities of life and parental comforts. ⁸ An established custodial environment can exist in more than one home. ⁹ Our review of child custody cases is de novo. ¹⁰ However, under M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8), and so as to expedite resolution of custody disputes, we should affirm the trial court unless its findings were against the great weight of the evidence, unless it committed a palpable abuse of discretion or unless it committed a clear legal error on a major issue.

In the within case, the parties were divorced in 1982, and the trial court ordered joint custody. [175 MICHAPP 81] Initially, the children remained in the marital home and each parent stayed there in alternating months. ¹¹ The parties agreed in 1984 that the children should move monthly, rather than having the parents do so. An order to that effect was entered by the trial court. For three and one-half years from the entry of that order until the hearing on the instant petition, the children lived with this arrangement. The children have been doing well in school, attend church regularly and their two homes are in close proximity to both their school and to members of their extended families. The trial court found that both parties provided parental guidance, comfort, discipline and the necessities of life. This finding is supported by the record and constitutes neither an abuse of discretion nor a clear legal error.

Third, plaintiff contends that the trial court erred in failing to interview the children concerning their custodial preference. Custody disputes are to be resolved in the child's best interests, as measured by eleven factors set forth in M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3). ¹² One of these factors is the "reasonable preference of the child." ¹³ The child's preference, as well as each of the statutorily enumerated factors, must be evaluated and considered when a court decides a custody matter. ¹⁴ Although no in camera interview took place, defendant conceded that the children would prefer to be with plaintiff. In ruling on plaintiff's motion, the trial court stated, inter alia, "[t]he only factor in the [175 MICHAPP 82] Act that would weigh in favor of the plaintiff would be the preference of the children." Thus, the trial court did consider the children's preference. We find no abuse of discretion on this issue.

Finally, plaintiff contends that the trial court failed to give sufficient weight to the children's custodial preference as adduced in the testimony of a counselor. In ruling on plaintiff's petition, the trial court stated its finding that, generally, and apart from the children's preference, none of the statutory factors appreciably militated in favor of one party over the other and that the children's preference did not "in and of itself ... rise to the level of clear and convincing [evidence] that would allow a change in the present custody arrangements." Where there is an established custodial environment, the burden is on the moving party to establish by clear and convincing evidence that a change in custody is in the children's best interests. ¹⁵ We agree with the trial court's finding that plaintiff failed to carry her burden of demonstrating that the best interests of the children truly would be served by awarding her sole custody. At most, she only established her case by a preponderance of the evidence. As stated by the Michigan Supreme Court in Baker v. Baker: ¹⁶

"In adopting Sec. 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."

We do not find sufficient grounds to upset the trial court's decision.

AFFIRMED.

* William Gardner Schma, 9th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended 1968.

1 See also M.C.R. Sec. 3.207(A).

2 Bowler v. Bowler, 351 Mich. 398, 405, 88 N.W.2d...