Edel v. Edel

• Decision Date: 24 April 1980
• Docket Number: Docket No. 46321
• Citation: 97 Mich.App. 266,293 N.W.2d 792
• Parties: Sharon M. EDEL, Plaintiff-Appellant, v. Michael J. EDEL, Defendant-Appellee. 97 Mich.App. 266, 293 N.W.2d 792
• Court: Court of Appeal of Michigan — District of US

Page 792

293 N.W.2d 792

Sharon M. EDEL, Plaintiff-Appellant, v. Michael J. EDEL, Defendant-Appellee.

Docket No. 46321.

97 Mich.App. 266, 293 N.W.2d 792

Court of Appeals of Michigan.

April 24, 1980.

Released for Publication July 11, 1980.

[97 MICHAPP 267] Roger J. Bus, James B. Toohey, Kalamazoo, for plaintiff-appellant.

John J. Peters, Kalamazoo, for defendant-appellee.

Before DANHOF, C. J., and R. B. BURNS and MacKENZIE, JJ.

PER CURIAM.

The plaintiff brings this appeal from a judgment of divorce granting custody of the couple's minor child to the defendant.

The plaintiff and the defendant separated in May, 1978. In November, 1978, the circuit court awarded temporary custody of their child, Kristen, to the plaintiff. After trial in May, 1979, the court issued a judgment granting the complaint for divorce, apportioning the marital property and placing Kristen permanently in the custody of the defendant. At that time, Kristen was five years old.

The court's findings reflect the evidence, which shows that Kristen is a healthy and well-adjusted child, with strong affectional ties to both parties. There was little question that both are able parents and are willing to provide very well for the child's economic and psychological needs. The plaintiff has become engaged to a man whose [97 MICHAPP 268] ability as a stepparent is not open to serious question, who shows a mature respect for Kristen's relationship with her father, and for whom Kristen apparently has a strong liking. As the plaintiff's counsel argued to the trial court, there are no "monsters" in this case.

The defendant intends to remain with Kristen in Kalamazoo, where he works as a computer programmer. He has preserved the ties between Kristen and all her grandparents, who also live in that area. The defendant's parents and the plaintiff's sister-in-law are apparently willing to care for Kristen while her father works. The plaintiff's fiance has taken a position as the program director of a radio station in Toledo. It is the plaintiff's intention to take Kristen there with her and to marry this man as soon as his own divorce becomes final. The plaintiff has been offered a part time job in the same radio station.

The trial judge issued his opinion from the bench, evaluating the evidence with reference to the several factors set forth in M.C.L. § 722.23; M.S.A. § 25.312(3) ¹ and prefacing his remarks with the observation[97 MICHAPP 269] that the dispute was "one of the most difficult custody cases (he had) had in almost five years on the bench". Considering the statutory factors in order, he found the parties to be equal with respect to most of them, but believed that in three areas the evidence favored the defendant's claim to custody.

The court went on to address one other aspect of the case that it thought was relevant:

"The Court also notes the presence of the boyfriend. Now, the Court states on the record that the boyfriend is black. There has been no mention of it. The Court is not certain whether or not it is correct in mentioning this, but I feel that I must. We have come a long way in race relationships. The Court examined this man very closely when he was testifying. This man is black, but he is not culturally inferior to this woman. They can have a good life if they want to. He appears to be as well educated as she. He speaks well. Maybe this is his training as a radio announcer. He has what sounds like a good job, but it may be sort of a transitory job, because I would guess that if he is successful in Toledo, that he is going to have other opportunities to go to other stations.

"So the life probably will not be as stable as if he stayed in Kalamazoo or if the mother had stayed with the present husband. This is no great disadvantage because if he worked for a corporation, if he worked for General Motors, he probably would expect every five or ten years to be transferred. I doubt that with the radio station he's going to be changing any more often than that, no matter how successful he becomes.

"The Court can't help but think that there is a problem, small one, but nevertheless a problem and rather than to put it on a racial basis, a black against white, the Court would make the analogy of a French [97 MICHAPP 270] girl who marries a German and goes to Germany to live. They are both white, but they are going to have problems and they are going to have to overcome those problems. That is the problem that Kristen would also have to live with. Thank goodness those problems are not as great as they were 20 years ago. I think it is an element that this Court in doing its duty has to weigh.

"The same problem occurs when you have, maybe to a lesser extent, when you have an inter-religion marriage. Where the child is going to be raised Catholic or Protestant or Jew. Not to say that those marriages shouldn't take place, but I think that is something the Court has to consider. It would be easier for the Court to duck the issue and to ignore the fact that there is a color difference here. I'm satisfied that the boyfriend does love Kristen very much. I think that he will be a good stepfather to her, whether the child were to be in his home or come to visit frequently.

"I did not ask the child about the boyfriend for several reasons. I am not sure that she could have given me an answer that would have been helpful, but noticing the way he testified on the stand, I don't think that he could have faked that feeling that he has of Kristen and I'm sure that if I could have had unlimited time with Kristen and opened her mind, that she probably would have had a very warm feeling towards him. The time did not permit that and I don't think I have the skills to do this, to illicit (sic) from her even if I did have the time.

"There is another element the Court wants to discuss about the boyfriend, and that is this. Even without the child, the mother and the boyfriend, and I think they are both honest, I think they both intend it when they say they are going to marry as soon as they are free to do so, but they are going to have some adjustment to make. They are going to have to get acquainted with each other. I don't think it is going to be as easy with Kristen in the picture, at least in the beginning. They hope to have their own children. I hope they do, but I think to avoid the mother having a second unfortunate marriage where she feels that she perhaps made a mistake, that maybe the first year or two they probably [97 MICHAPP 271] should focus on each other and not be too distracted by other obligations.

"The Court recognizes that the marriage may never come about, but I think they are both sincere and I think they both want the marriage and unless something dramatic happens, I think that they will marry when they are able to."

The consideration of race in child custody matters has apparently never been directly addressed by the courts of this state. We have encountered Potter v. Potter, 372 Mich. 637, 127 N.W.2d 320 (1964), in which the Court reviewed an award of custody of a young child to her father, after her mother had removed the child to California in violation of a court order. While in California, the mother married a man whom she had been seeing before her divorce. A plurality of the Court wrote:

"An attempt has been made by counsel for (the mother) to inject into the case questions of civil rights, under the Fourteenth Amendment to the Federal Constitution, involving racial equality. As the basis for such attempt, counsel point out in their brief that: 'Plaintiff and defendant are white. Dr. Baugh is a Negro.' It is established by the record that Dr. Baugh is appellant's present husband and the 'Mr. X' referred to in the pleadings and proofs. It is obvious from the opinion of the circuit judge that he did not consider such racial differences as of special significance at the present time. We fully concur in this view. Possible developments in the future because of the situation referred to are matters wholly of speculation and conjecture, and as such may not affect the present determination of the case. What we actually have before us is the matter of the custody of a young child as of the present time. The trial court has, of course, the reserve power under the statute to modify the decree in the respect here involved in the event of changed circumstances." 372 Mich. at 648, 127 N.W.2d at 326.

[97 MICHAPP 272] Courts in a few other states have encountered the problem in a variety of situations and have shown little favor for the use of race as a factor in custody decisions. The subsequent marriage of the white mother of an illegitimate child to a black man was held to be an improper basis for lodging custody of the child with its white father in In re Brenda H., 37 Ohio Misc. 123, 66 Ohio Op.2d 178, 305 N.E.2d 815 (1973). Even more to the point is Commonwealth ex rel. Myers v. Myers, 468 Pa. 134, 360 A.2d 587 (1976), in which a white father sought custody of his children from their white mother because her stable but unsolemnized relationship with a black man threatened the children's "racial identity". The race of the mother's paramour was held to be "not relevant" in deciding the issue. Myers relied on the earlier decision of the Supreme Court of Pennsylvania in Commonwealth ex rel. Lucas v. Kreischer, 450 Pa. 352, 299 A.2d 243 (1973), in which a white father had refused to surrender custody of the couple's children after their white mother married a black man. The Court said:

"In its opinion, the (trial) court stated that the benefit of geographical location is a 'highly controversial issue, . . . , and is not conclusive one way or the other.' The basic reason for the court's ruling in granting custody to the father was the existence of the interracial marriage of the mother and the possible detriment that might result to the children from living with the mother under such circumstances.

" * * * In the instant case,...