Lem v. Lem

• Decision Date: 27 June 1968
• Docket Number: No. 3,Docket No. 4235,3
• Citation: 162 N.W.2d 683,12 Mich.App. 174
• Parties: Edna Gale LEM, Plaintiff-Appellee, v. James W. LEM, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 683

162 N.W.2d 683

12 Mich.App. 174

Edna Gale LEM, Plaintiff-Appellee, v. James W. LEM, Defendant-Appellant.

Docket No. 4235.

Court of Appeals of Michigan, Division No. 3.

June 27, 1968.

Released for Publication Dec. 2, 1968.

Frederick A. Sauer, Jr., Sauer & Brewer, Kalamazoo, for appellant.

Ralph O. Birkhold, Kalamazoo, for appellee.

Before FITZGERALD, P.J., and GILLIS and McGREGOR, JJ.

McGREGOR, Judge.

As issue here is whether or not a circuit court has authority to amend a judgment of divorce to grant the plaintiff mother permission to permanently remove her two children from the State, when the judgment of divorce gave the support-paying father rights of visitation.

An uncontested divorce judgment granted July 20, 1964, gave the mother custody of the two children, gave the father reasonable visitation rights, and provided that the father pay $22.50 weekly for support of the children, plus group medical and hospitalization insurance for their protection. The judgment also contained the required language concerning the necessity of obtaining approval of the court to remove the children from the State of Michigan.

The mother's petition for modification of the judgment of divorce was filed July 6, 1967, praying for permission of the court to remove the two children to California to live, and also for an increase in support payments. Such petition alleged that the defendant-father's earnings had increased from $80 or $85 at the time of the divorce to $115 weekly at present. The father's answer thereto admitted current earnings of $114 weekly, but denied that the reasons given by the mother could be the basis for a modification of the divorce judgment. Concurrently, the father filed a cross-petition for modification of the judgment of divorce, seeking custody of the two children.

On August 1, 1967, the court denied the father's cross-petition and granted relief to the mother. The order allowed her to remove the children to California, increased the support payments required of the father to $34.50 per week, but provided that if and when the mother took the children to California the support payments should be reduced to $22.50 per week, to continue at the reduced amount so long as the children resided outside the State of Michigan. This modification also provided tht the father should have the right to have the two children for six weeks during summer vacations if he had an approved home and paid their round-trip transportation for the visits.

From this order of modification of the divorce judgment the father appeals, contending the trial court abused its discretion and that GCR 1963, 729.4* does not specify the basis of the modification nor provide any guidelines for determination of the appropriate circumstances permitting the removal of a child from this State.

In its comprehensive opinion, given from the bench, the trial court stated:

'The defendant husband remarried in April of this year. * * *

'Defendant * * * never contested this divorce case. * * * He did not contact the investigator to tell his side of the story so far as the children were concerned. * * * Although he was given liberal visitation rights under the terms of the judgment, he hasn't...