Ireland v. Smith

• Decision Date: 21 May 1996
• Docket Number: 104951,Docket Nos. 104950
• Citation: 547 N.W.2d 686,451 Mich. 457
• Parties: , 64 USLW 2784 Jennifer IRELAND, Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 686

547 N.W.2d 686

451 Mich. 457, 64 USLW 2784

Jennifer IRELAND, Plaintiff-Appellee, v. Steven SMITH, Defendant-Appellant.

Docket Nos. 104950, 104951.

Supreme Court of Michigan.

May 21, 1996.

[451 Mich. 458] Julie Kunce Field, Ann Arbor, for plaintiff.

Sharon-Lee Edwards, Detroit, for defendant.

OPINION

PER CURIAM.

This is a custody dispute. Following a hearing, the circuit court ordered that the defendant father be given custody of the parties' minor child. The Court of Appeals set aside the circuit court order and remanded the case for further proceedings before a different judge. The Court of Appeals retained jurisdiction. We approve the remand ordered by the Court of Appeals, though we modify the accompanying directions.

I

In their mid-teens, plaintiff Jennifer Ireland and defendant Steven Smith conceived a child, Maranda, who was born in 1991. The parties did not marry, but continued living with their respective parents while they completed high school. After initially planning to put the baby up for adoption, Ms. Ireland decided instead to keep her. The child lived with Ms. Ireland and her mother in Mount Clemens.

After a time, Mr. Smith began visiting the child and providing a few items for her care. However, Maranda continued to live with her mother and maternal grandmother, who provided nearly all the necessary support.

In January 1993, Ms. Ireland began an action to obtain child-support payments from Mr. Smith. She also obtained an ex parte order that granted her continuing custody of Maranda.

Ms. Ireland enrolled as a scholarship student at the University of Michigan in Ann Arbor for the fall semester of 1993. She and Maranda lived in the university's family housing unit. On weekdays, Maranda attended a university-approved day-care center.

During this period, Mr. Smith remained at his parents' home. He evidently continues to live with them.

In May and June 1994, the circuit court conducted a trial regarding the issue of custody. It would be difficult to exaggerate the extent to which the parties disagreed with regard to the proper setting for Maranda. Each produced witnesses who spoke very disparagingly of the other, and there was little agreement about the facts of this matter.

Following the hearing, the circuit court issued an opinion in which it discussed each of the statutory factors for determining the best interests of the child. ¹ The court found that each of the statutory factors weighed evenly between the parties, except factor e, which concerns:

The permanence, as a family unit, of the existing or proposed custodial home or homes.

The circuit court found that factor e "heavily" favored Mr. Smith. It contrasted the stability of continued residence with Mr. Smith and his parents with the occasional moves that were likely as Ms. Ireland continued her education. In an extended discussion of this factor, the court also noted the demands that would be imposed on Ms. Ireland as she sought both to raise a child and attend the university.

For those reasons, the circuit court ordered that Mr. Smith be given custody of Maranda. Ms. Ireland appealed, ² and the Court of Appeals entered a stay.

Issues concerning visitation remained in circuit court. Those proceedings included entry of an order denying Ms. Ireland's motion to disqualify the trial judge. From that order, she filed a second appeal.

The Court of Appeals consolidated the appeals, and decided the case in a single opinion. 214 Mich.App. 235, 542 N.W.2d 344 (1995). The Court of Appeals agreed with the circuit court that Ms. Ireland had provided an established custodial environment. ³ However, it found that the circuit court had erred in determining that factor e favored Mr. Smith. The Court of Appeals upheld the circuit court's determination that the other statutory factors favored neither party.

The Court of Appeals remanded the case for further consideration, retaining jurisdiction. The Court also disqualified the trial judge from further participation in this matter.

Mr. Smith has applied to this Court for leave to appeal. ⁴

II

In the central portion of its analysis, the Court of Appeals first explained its conclusion that the evidentiary record did not support a factual finding that factor e favored Mr. Smith:

We find no support in the record for the trial court's speculation that there is "no way that a single parent, attending an academic program at an institution as prestigious as the University of Michigan, can do justice to their studies and to raising of an infant child." The evidence shows that the child has thrived in the university environment. Defendant concedes that he has no complaint about the university day care, and the trial court recognized that the child has had a "meaningful experience" there. The trial court found plaintiff's day-care arrangements "appropriate," but concluded that defendant's plan to have his mother baby-sit was better for the child because she was a "blood relative" rather than a "stranger." Both parties will necessarily need the help of other people to care for their child as they continue their education and employment, and eventually their careers. In light of undisputed evidence that plaintiff's child-care arrangements are appropriate and working well, the evidence does not support the trial court's judgment that defendant's proposed, but untested, plans for the child's care would be better. [214 Mich.App. at 245-246, 542 N.W.2d 344.]

The Court of Appeals then explained that the circuit court had committed an error of law in its application of factor e. Observing that the factor concerns "permanence" of the custodial home, not its "acceptability," the Court stated:

Moreover, an evaluation of each party's arrangements for the child's care while her parents work to go to school is not an appropriate consideration under this factor. We find the trial court committed clear legal error in considering the "acceptability" of the parties' homes and child-care arrangements under this factor, which is directed to the "permanence, as a family unit," of the individual parties. "This factor exclusively concerns whether the family unit will remain intact, not an evaluation about whether one custodial home would be more acceptable than the other." See Fletcher v. Fletcher, 200 Mich.App. 505, 517, 504 N.W.2d 684 (1993). Our Supreme Court affirmed this Court's opinion on this issue, 447 Mich. 871, 884-885 (1994), stating, "We agree with the Court of Appeals. The facts relied upon and expressed by the judge relate to acceptability, rather than permanence, of the custodial unit." [214 Mich.App. at 246, 542 N.W.2d 344.]

Finally, the Court of Appeals provided direction for the proceedings on remand:

On remand, the trial court is to consider "up-to-date information" regarding this factor, as well as the fact that the child has "been living with the plaintiff during the appeal and any other changes in circumstances arising since the trial court's original custody order." Id., emphasis added. The trial court is not, however, to entertain or revisit further "evidence" concerning events before the trial in May and June 1994. See id. [214 Mich.App. at 247, 542 N.W.2d 344.][ ⁵]

III

We affirm the decision of the Court of Appeals to remand this case, and we agree that the circuit court erred in finding that factor e heavily favored Mr. Smith. However, we write to clarify the analysis and modify the terms of the remand.

A

First, there is the issue how properly to understand factor e. ⁶ As the Court of Appeals observed, we discussed this factor in Fletcher, where we explained:

Factor e requires the trial court to consider "[t]he permanence, as a family unit, of the existing or proposed custodial home or homes." M.C.L. § 722.23(e); M.S.A. § 25.312(3)(e). In the instant case, the trial court focused on the "acceptability of the custodial home," as opposed to its permanence. It stated its findings as follows:

"The Court is satisfied that either parent would provide permanence, as a family unit, and would offer acceptable custodial homes. It is undisputed that plaintiff as a father is accustomed to and willing to preform [sic] the day to day jobs to maintain a household. The Court feels that some weight should be assigned in favor of plaintiff because the evidence shows that defendant had been out of the home in the evening many times and thus not caring for the family while plaintiff has been present on those occasions."

Because acceptability of the home is not pertinent to factor e, the panel found that it was legal error for the trial court to consider it. We agree with the Court of Appeals. The facts relied upon and expressed by the judge relate to acceptability, rather than permanence, of the custodial unit. Therefore, the trial court's error seems to go beyond mere word choice. [447 Mich. at 884-885, 526 N.W.2d 889.]

We adhere to that explanation. The Legislature has provided twelve statutory factors, of which the first eleven (a through k) concern specific aspects of the family situation. ⁷ Among them are factors d and e:

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

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

These factors are phrased somewhat awkwardly, ⁸ and there clearly is a degree of overlap between them. However, we are satisfied that the focus of factor e is the child's prospects for a stable family environment. ⁹

In this instance, we discern no significant difference between the stability of the settings proposed by the two parties. Ms. Ireland likely will continue to spend time both at the University of Michigan and at her mother's home in Mount Clemens (two settings that are now familiar to the child). It is also possible that she will change residences at the university, and that she will move again after completing her education....