Patrick v. Patrick, Docket No. 44930

• Decision Date: 24 July 1980
• Docket Number: Docket No. 44930
• Citation: 297 N.W.2d 635,99 Mich.App. 132
• Parties: Carolyn PATRICK, Plaintiff-Appellee, v. Manfred PATRICK, Defendant-Appellant. 99 Mich.App. 132, 297 N.W.2d 635
• Court: Court of Appeal of Michigan — District of US

Page 635

297 N.W.2d 635

Carolyn PATRICK, Plaintiff-Appellee, v. Manfred PATRICK, Defendant-Appellant.

Docket No. 44930.

99 Mich.App. 132, 297 N.W.2d 635

Court of Appeals of Michigan.

July 24, 1980.

Released for Publication Nov. 5, 1980.

[99 MICHAPP 133] Lance A. Fertig, Lansing, for defendant-appellant.

James A. Moore, St. Johns, for plaintiff-appellee.

Before WALSH, P. J., and BASHARA and GLASER, ^* JJ.

PER CURIAM.

Defendant appeals as of right from a judgment of divorce entered on May 2, 1979, which granted plaintiff custody of the parties' four minor children and divided the marital assets.

On appeal, defendant argues that the trial court abused its discretion by awarding plaintiff property he acquired prior to their 15-year marriage.

The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Johnson v. Johnson, 346 Mich. 418, 431, 78 N.W.2d 216 (1956). The end sought is a fair and equitable distribution under all of the circumstances. Crane v. Crane, 17 Mich.App. 588, 591, 170 N.W.2d 194 (1969). Although we review divorce cases de novo, we will not substitute our judgment for that of the trial court absent an abuse of discretion. Kurtz v. Kurtz, 34 Mich.App. 34, 35, 190 N.W.2d 689 (1971). The factors to be considered include the source of the property, the length of marriage, the needs of the parties, their earning abilities, and the cause of the divorce. Sabourin v. [99 MICHAPP 134] Sabourin, 67 Mich.App. 100, 104, 240 N.W.2d 284 (1976).

In the instant case, defendant owned a 40-acre farm with a barn and attached aircraft hanger and two acres of other land before the marriage. During their marriage, a house was built on the two acres. Plaintiff did not work regularly during the 15 year marriage, but cared for the children and performed the household chores. During the pendency of the divorce, plaintiff was on public assistance. The trial court awarded plaintiff the new home, a pickup truck, a boat, motor and trailer and certain sums of money. It awarded defendant the farm, farm machinery, car, and airplane, and airplane parts.

Having reviewed the record, we conclude that the trial court did not abuse its discretion by dividing the property in this fashion. The fact that the property on which the new house stands belonged to defendant before the marriage is outweighed by the other factors.

Defendant also argues that the trial court erred in not asking the children their parental preference, and in not following their preference.

During the trial, the court requested an interview with the children and held a 15-minute interview in chambers, making the following comments on the record:

"THE COURT: Let the record reflect that the Court conferred in chambers with Ronald, Suzanne, Timothy and Deborah Patrick and the Court did so considering the best interest of the children and pursuant to the Child Custody Act. The Court is not going to place in the record anything that the children told the Court but the Court will use that along-use the information it gathered in talking to the children along with other evidence it may find in this case in determining which [99 MICHAPP 135] parent to award custody of the children and the Court does that under (I) of the Custody Act, being MSA 25.312(i)."

Later, in its March 13, 1979, opinion on the issues, the court wrote:

"The Court met in chambers with all four children and while it did not request the children to express a preference as to a parent, the Court noted and observed the unexpressed desires of the children with respect to custody. Two of the children are of tender years, 61/2 and 31/2 years of age respectively, and the Court did not place undue emphasis on their wishes nor will the Court now place the children in a compromising position by indicating their desires as to custody."

Our review of this issue is limited by M.C.L. § 722.28; M.S.A. § 25.312(8):

"To expedite the resolution of a child...