Overall v. Overall

• Decision Date: 07 February 1994
• Docket Number: Docket No. 157256
• Citation: 203 Mich.App. 450,512 N.W.2d 851
• Parties: Vanessa OVERALL, Plaintiff-Appellant, v. Simuel L. OVERALL, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 851

512 N.W.2d 851

203 Mich.App. 450

Vanessa OVERALL, Plaintiff-Appellant, v. Simuel L. OVERALL, Defendant-Appellee.

Docket No. 157256.

Court of Appeals of Michigan.

Submitted Dec. 22, 1993, at Lansing.

Decided Feb. 7, 1994, at 9:50 a.m.

Released for Publication April 1, 1994.

Earl R. Spuhler, Fenton, for plaintiff-appellant.

Kathleen Buckley, Grand Blanc, for defendant-appellee.

Before SHEPHERD, P.J., and McDONALD and JANSEN, JJ.

SHEPHERD, Presiding Judge.

Plaintiff, Vanessa Overall, appeals as of right a September 21, 1992, judgment of divorce that included a provision granting primary physical custody of the parties' minor child to defendant, Simuel L. Overall. We affirm the judgment of the trial court in all respects.

The parties were married in September 1989 and became separated by January 1991. A child was born of the union on February 5, 1990. Plaintiffalso has two other children from a previous marriage.

Plaintiff has a masters degree in communications and, at the time of trial, was employed as a teacher for the learning disabled. Plaintiff also did some modeling during the summer months. Defendant was employed as a musician for Capital Records, which required him to travel frequently.

Plaintiff alleged that she left the marital home because defendant physically abused her in front of the children. Defendant acknowledged that he had slapped her once, but denied any other abuse.

After plaintiff left the marital home, the parties remained separated for only a few weeks. Then, plaintiff allowed defendant to move in with her because he had been experiencing illness, apparently chronic fatigue syndrome. With regard to the issue of defendant's health, plaintiff alleged that defendant's illness had affected him so seriously that he began to have delusions that parasites were living underneath his skin. Plaintiff alleged that defendant had stuck himself with a syringe and had cut himself with a razor blade in order to rid himself of the parasites. However, defendant vehemently denied these allegations, and a doctor who examined defendant testified that plaintiff's allegations were inconsistent with defendant's physical condition.

In April 1991, defendant went to a medical facility in Georgia for treatment. When defendant returned, plaintiff was leaving for Arkansas to take her two older children to stay with their father for the summer. While plaintiff was gone, defendant discovered nude photographs of plaintiff that had been taken in their home. When plaintiff returned in mid-June 1991 and was confronted by defendant with the pictures, plaintiff said it was none of his business. According to defendant, plaintiff told him that he should leave with the child because the child was holding her back. Defendant left with the child and took care of the child almost exclusively by himself for a number of months.

Later, when plaintiff filed for divorce in October 1991, she wanted to spend more time with the child. On October 29, 1991, a temporary visitation order was entered pursuant to a stipulation of the parties, which ordered that defendant was to have primary physical custody and that plaintiff was to have liberal visitation for five hours a day. The order also specifically stated that the custodial arrangement would not establish a custodial environment with either party.

Thereafter, apparently there were problems with visitation--so many problems that the trial court ordered all transfers of custody of the child take place at the police station.

Because defendant had been given primary physical custody, plaintiff was ordered on February 24, 1992, to pay child support of $123 a week. However, by September 1992, only one payment had been made pursuant to an income withholding order, and plaintiff's arrearage was over $3,000.

The social worker assigned to the case, Katherine Morrison, testified that it seemed that plaintiff should be the custodial parent because she had the greatest potential for caring appropriately for the child. Morrison based her conclusions on defendant's weak health and perceived emotional instability. However, defendant's physician would later testify that defendant's medical condition was greatly improved and that nothing would prevent him from taking care of his son.

Near the end of the divorce trial, it was learned that defendant was offered a position with Motown Records in Georgia and wanted to take the child to Georgia to live with him.

After reviewing the evidence and making findings of fact concerning the various child custody factors outlined in M.C.L. § 722.23; M.S.A. § 25.312(3), the trial court granted the parties joint legal custody and gave primary physical custody to defendant. Plaintiff was given custody during the Christmas, spring, and summer vacations. The trial court also granted defendant permission to move the child to Georgia. The trial court ordered the foregoing in the September 21, 1992, judgment of divorce, from which plaintiff appeals as of right.

On appeal, plaintiff raises various issues in an attempt to demonstrate that the trial court's decision was not made in the best interests of the child.

In accordance with Beason v. Beason, 435 Mich. 791, 798, 460 N.W.2d 207 (1990), in divorce cases this Court reviews the trial court's findings of fact for clear error. Fletcher v. Fletcher, 200 Mich.App. 505, 522, 504 N.W.2d 684 (1993). A finding is clearly erroneous if the appellate court, after reviewing all the evidence, is left with a definite and firm conviction that a mistake has been made. Harper v. Harper, 199 Mich.App. 409, 410, 502 N.W.2d 731 (1993). Because child custody decisions are dispositional in nature, a trial court's ultimate decision is subject to review de novo. Fletcher, supra 200 Mich.App. at 512, 504 N.W.2d 684. However, while our review is de novo, it is also limited by § 8 of the Child Custody Act, M.C.L. § 722.28; M.S.A. § 25.312(8), which provides:

To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.

Also in accord, see Barringer v. Barringer, 191 Mich.App. 639, 640, 479 N.W.2d 3 (1991).

I

First, plaintiff argues that the trial court erred in failing to determine whether a custodial environment was created after the parties' separation and during the pendency of the divorce. We find this issue to be without merit because the trial court did address the issue of the existence of a custodial environment.

Whether a custodial environment exists is a question of fact, which the trial court must address before ruling on the child's best interests. Stringer v. Vincent, 161 Mich.App. 429, 434, 411 N.W.2d 474 (1987). In the case at bar, the trial court based its finding that no custodial environment existed on the prior custody order and the stipulation of the parties that the shared custody arrangement was not to create any custodial environment with either parent. Thus, contrary to plaintiff's contentions, the trial court made sufficient findings here. Id. We would only further note that the record tends to demonstrate that, if anyone, it was defendant who had spent the most time caring for the child. Thus, this issue is without merit.

II

Next, plaintiff argues that the trial court erred by not making specific findings of fact pursuant to MCR 2.517(A)(1). However, we disagree.

Our review of the record of the proceedings below indicates that the trial court carefully considered each of the statutory factors outlined in § 3 of the Child Custody Act, M.C.L. § 722.23; M.S.A. § 25.312(3), and made specific findings on the record before granting primary physical custody to defendant, in accord with Schubring v. Schubring, 190 Mich.App. 468, 470, 476 N.W.2d 434 (1991). Thus, this issue is without merit.

III

Next, plaintiff urges us to review the record below and find that the preponderance of the evidence favored granting her physical custody. However, after reviewing the record and the trial court's findings, we are not convinced that the trial court made findings of fact against the great weight of the evidence, abused its discretion, or committed an error of law when it decided to grant defendant primary physical custody. M.C.L. § 722.28; M.S.A. § 25.312(8); Barringer, supra, 191 Mich.App. at 640, 479 N.W.2d 3.

The record clearly indicates that the trial court considered the eleven statutory factors of § 3 of the act. After hearing testimony for three days, the trial court found that the preponderance of the evidence favored defendant because statutory factor c strongly favored defendant, factor k somewhat favored plaintiff, and the parties were essentially equal with regard to factors a, b, d, e, f, g, h, i, and j. The trial court awarded the parties joint physical custody, but granted defendant primary physical custody because of "the desirability of maintaining continuity." Our review of the record supports the trial court's decision.

In particular, with respect to factor c, concerning the capacity and disposition to provide necessary support, the record reflects that defendant supported the child almost entirely on his own during the pendency of the divorce, while plaintiff made only one child support payment pursuant to an income withholding order and was otherwise significantly in arrears. Thus, the trial court did not err in finding that factor c favored defendant.

Under factor k, the trial court believed that it would be desirable for the child to have some contact with his half brothers. In that respect, the trial court found that factor k somewhat favored plaintiff. On appeal, defendant does...