Paton v. Paton

• Decision Date: 26 April 1961
• Docket Number: No. 69,69
• Citation: 108 N.W.2d 876,363 Mich. 192
• Parties: William A. PATON, Jr., Plaintiff and Appellee, v. Diana Doyle PATON, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 876

108 N.W.2d 876

363 Mich. 192

William A. PATON, Jr., Plaintiff and Appellee, v. Diana Doyle PATON, Defendant and Appellant.

No. 69.

Supreme Court of Michigan.

April 26, 1961.

Sigler, Anderson & Carr, Lansing, for appellant.

Kennedy & Dobson, Ann Arbor, for appellee.

Before the Entire Bench except CARR and SMITH, JJ.

BLACK, Justice (dissenting).

This appeal, taken by the defendant mother from a decree of divorce entered September 8, 1959, has by our order of October 14, 1960 and subsequent proceedings resolved its sole thrust into a custodial question; one of ways and means to effectuate the best interests of now four-year-old Victoria Jane Paton.

When the appeal came to submission during our October term, it developed that each of the respective parties had remarried. Our said order ensued. The order directed remand of the case 'for the taking of further testimony as to conditions existing since last hearing * * *, touching on where and in whose custody the best interests of the minor child will be subserved and for recommendations thereon from the trial judge.'

In pursuance of that order the chancellor proceeded to conduct an extensive hearing. Both parties were afforded free right of testimonial presentation touching the stated question. The chancellor's recommendations, appearing in the final pages of the transcript returned here, may fairly be summarized as follows:

The chancellor suggests that it is now in order 'for the mother to have the child with her for certain defined periods of time, so that the relationship of this mother and child may be better determined, especially as to any effect that it may have upon the child.' He finds that 'The mother appears now * * * to be much more stabilized' than before (the chancellor refers here to the originally found fact that the mother was suffering certain mental disturbances), and concludes by saying that he 'does not recommend a change of custody at this time, but recommends that gradually the child's relationship with its mother be reflected by further court determination as to custody,' and that 'any shift in possession of the child, even for short periods of time, should be guided by the consideration of the possible effect of any sudden change upon the child.'

The background of these recommendations appears in the appendix on appeal, filed April 1, 1960. For general understanding of the case such background is submitted as follows:

The husband is an American citizen. From separation until recent remarriage he resided with his parents in Ann Arbor. The wife is a subject of Great Britain. ¹ The parties were married in England September 10, 1955 and commenced Lansing life later that year. Shortly after they arrived in Lansing the wife commenced suffering from a skin irritation 'which apparently was not explainable on a purely physical basis.' The relationship of the parties seems to have deteriorated steadily as this trouble developed. The child was born March 7, 1957. In the fall of 1957, upon her physician's advice, the mother commenced taking psychiatric treatment. The psychiatrist, a medical doctor, deposed in June of 1958 that the mother was 'a mentally ill person' and that 'with continued treatment the prognosis for her improvement and recovery is good.'

In the meantime, and on October 12, 1957, the child by agreement of the aprties was turned over to the custody of her paternal grandparents. There she has remained, with excellent environmental care until the present time.

According to the mother's testimony the psychiatrist advised, in the spring of 1958, that she was then in condition 'to care for the child.' She charges that, as the parties were planning to move the child from Ann Arbor to their home in Lansing, the 'plaintiff surrepitiously removed both cars from the family home, established residence in Ann Arbor with his parents and filed suit for divorce, seeking custody of the child.'

The father's bill for divorce was filed June 23, 1958. Charges and countercharges followed. July 17, 1958 the chancellor ordered that temporary custody of the child be placed with the 'Washtenaw Friend of Court' with the 'care and supervision of the child being given to the paternal grandparents.' November 14, 1958, the psychiatrist having allegedly given her 'a clear bill of health,' the mother petitioned for temporary custody. A hearing on this petition was held. The petition was denied. The chancellor's order, retaining custody with the friend of court and grandparents as above, was incorporated substantially in the appealed decree.

The presented issue has been carefully and vigorously briefed. The mother, apparently on her was to generally better health, wants a peremptory order for custody in her favor. The father and the paternal grandparents resist with vigor and rely upon the chancellor's original opinion and his recommendations as brought here.

My conclusion is that no ground has been shown for disturbing the original decretal provision. Neither is there good reason for disregard or modification of that which has recently been recommended to us. The child's welfare is paramount. She knows no home or care other than that which able and affectionate grandparents have provided and she was placed in that home by agreement and for good reason. There she should stay, subject to more and more temporary visits and stays with her mother, until an order as now sought is more fully justified. Such an order would take her to another state, beyond the jurisdiction of our courts (See Herbstman v. Shiftan, Mich., 108 N.W.2d 869). It should be withheld until it is made to appear--to the chancellor's satisfaction--that the mother and her new husband have according to their declared intention moved to Michigan.

Judge Breakey had not disregarded the rights of the mother. He would simply guard the welfare of the child, on a sort of month to month basis until trials and other developments prove out more favorably, and indicates intention of transferring custody to the mother when such transfer will prove best for the child. This is good judgment, deserving of approbation.

The complete record calls for approval of the chancellor's recommendations. The case should be remanded for entry of such order or orders, in furtherance of such recommendations, as to the chancellor may appear just and meet. It hardly need be added that either party may apply for leave to review subsequent orders.

KAVANAGH, Justice.

Most of the facts with reference to this case are set forth in the opinion of Mr. Justice BLACK. The additional facts necessary to its disposition are found from an examination of the complete record in the original trial and the record on rehearing.

The testimony discloses the mother of the child has remarried and has established a proper and fit home at 233 Orchard Street, East...