Kaiser v. Kaiser

• Decision Date: 04 May 1964
• Docket Number: No. 15,15
• Citation: 127 N.W.2d 887,373 Mich. 31
• Parties: Kathleen KAISER, Plaintiff and Appellant, v. Howard KAISER, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 887

127 N.W.2d 887

373 Mich. 31

Kathleen KAISER, Plaintiff and Appellant, v.Howard KAISER, Defendant and Appellee.

No. 15.

Supreme Court of Michigan.

May 4, 1964.

George Kratchman, Detroit, for plaintiff and appellant.

Carl R. Thomsen, Detroit, for defendant and appellee.

Before KAVANAGH, C. J., and DETHMERS, KELLY, BLACK, SOURIS, SMITH, O'HARA and ADAMS, JJ.

PER CURIAM.

This is a dispute between parents over custody of their only child, a daughter, now 14 years old.It is an appeal from a denial of plaintiff's petition to modify a decree with respect to custody.

In January, 1952, after approximately 3 1/2 years of marriage plaintiff obtained a divorce from defendant and, at that time, received custody of the child who was then 2 years of age.Plaintiffmother then took the young child and went to live in the home of her parents.In December, 1953, plaintiff was institutionalized for mental illness and restored in 1959.On June 17, 1954, the decree of divorce was modified to award custody to defendantfather.By this modification the maternal grandparents retained visitation rights and the child since has periodically visited with her grandparents and with plaintiff, in accordance with decretal provisions.Defendant remarried in 1956.Since the 1954 modification defendant has had continuous custody.It is undisputed that plaintiff has recovered from her illness and is presently both physically and mentally fit.She resides with her parents, is gainfully employed, and has not remarried.

In June, 1960, plaintiff petitioned for modification of the decree to award her custody of the child.After investigation by the friend of the court, including the taking of testimony by a referee, the matter was heard in circuit court.After full hearing and review of the evidence, the circuit judge found it to be 'in the interests of the welfare of the child' that the custody remain unchanged.Summing up his appraisal of the parents, the following is quoted from the 1962 opinion of the circuit judge:

'In this case both parents are fit.Both homes are fine homes.The maternal grandparents are splendid people.The same may be said for the husband's second wife.

'Both parents love the child; and she, in turn, loves both of her parents.

'The mother was once mentally ill and had tuberculosis, but she has recovered fully and is now physically and mentally sound.It was because of this illness that custody was taken from the mother and vested with the father.

'Both parents are unusually fine, decent, and morally upright people.'

While both parents were found to present suitable environment, that is, fitness of home and person, the learned circuit judge analyzed the particular needs of the child.He found the young girl to be 'unusually tender and sensitive from an emotional point of view.'Because of 'this emotionally tender and sensitive' nature, drastic...