Schwiesow v. Schwiesow, Docket No. 87087

• Decision Date: 18 June 1987
• Docket Number: Docket No. 87087
• Citation: 406 N.W.2d 878,159 Mich.App. 548
• Parties: Kimberle A. SCHWIESOW, Plaintiff-Appellee, v. Frank Michael SCHWIESOW, Defendant-Appellant. 159 Mich.App. 548, 406 N.W.2d 878
• Court: Court of Appeal of Michigan — District of US

Page 878

406 N.W.2d 878

Kimberle A. SCHWIESOW, Plaintiff-Appellee, v. Frank Michael SCHWIESOW, Defendant-Appellant.

Docket No. 87087.

159 Mich.App. 548, 406 N.W.2d 878

Court of Appeals of Michigan.

Submitted June 3, 1986.

Decided April 21, 1987.

Released for Publication June 18, 1987.

[159 MICHAPP 551] Boyce, White & Werth by David P. Werth, Alpena, for plaintiff-appellee.

Jason, Kowalski, Poch & Bartko by Gregory Bartko, Rogers City, for defendant-appellant.

Before KELLY, P.J., and HOLBROOK and GREEN, ^* JJ.

KELLY, Presiding Judge.

Defendant Frank Schwiesow appeals as of right from the property and child custody provisions of a divorce judgment entered August 20, 1985. We remand for further proceedings consistent with this opinion.

Plaintiff and defendant were married on August 25, 1973 when plaintiff was sixteen and defendant twenty-seven years of age. Two children were born of the marriage, a son, Cody William Schwiesow, born October 23, 1975, and a daughter, Sky Nicole Schwiesow, born June 11, 1977.

Immediately after their marriage, the parties moved to the Schwiesow family farm which had been in defendant's family for generations and which had been given to defendant by his father as a gift in June of 1972. During the early years of their marriage, the parties worked together making extensive repairs to the farmhouse, adding a basement, remodeling the kitchen, and adding a fireplace and a new heating system. The parties also tore down old outbuildings, repaired and replaced fencing and added stalls to the barn. The parties built a 24' by 30' workshop outside the house. In 1976, defendant executed a deed on the farm property naming himself and plaintiff tenants by the entirety.

At all times during the marriage, defendant was employed by the Presque Isle Electric Company. [159 MICHAPP 552] The farm was not a money-making venture and, at the time of trial, defendant's sole income was $450 a week in net salary. Plaintiff completed her high school education and graduated magna cum laude from Alpena Area Community College in the years following the parties' marriage. In 1980, plaintiff began school at Saginaw Valley State College and graduated in December of 1982 with a bachelor's degree and a secondary teaching certificate. In order to attend Saginaw Valley State, which was some distance from the parties' home, plaintiff resided in an apartment with her two brothers in Saginaw during the week and commuted home for the weekends. During the years plaintiff attended Saginaw Valley State, plaintiff's mother stayed in the parties' home and helped defendant care for the two minor children during the week.

Plaintiff completed her bachelor's degree work in December of 1982 and moved back home. On October 20, 1983, however, plaintiff left the marital home and moved several miles away to Black Lake, where she and the children took up residence with her mother. On December 17, 1983, plaintiff was involved in a serious automobile collision and suffered closed-head injuries, resulting in a coma. The children were immediately returned to the farm and resided there with their father.

Plaintiff slowly emerged from the coma and was discharged from the hospital on April 14, 1984. Plaintiff continued to make steady recovery and at the time of trial was only minimally impaired. She has some residual weakness in her right hand which prohibits her from cooking on a gas stove. Because of poor balance, plaintiff used a quad cane at the time of trial but her doctors anticipated that she would advance to a single cane within a matter of months. Plaintiff's speech is good but [159 MICHAPP 553] somewhat slower than it was prior to the accident. Plaintiff is unable to drive and relies wholly upon her mother for transportation. When plaintiff left the parties' home in October of 1983, she moved into a small private apartment attached to her mother's house, comprised of a kitchenette, living room, bedroom and bath.

Plaintiff filed for divorce on May 4, 1984, less than one month after her discharge from the hospital, and requested permanent physical and legal custody of the two children. Although plaintiff filed a motion for temporary custody in August of 1984, an order was never entered on that motion. On December 22, 1984, plaintiff left with her mother for Kansas where she remained until April 13, 1985, just prior to trial in this case. While in Kansas, plaintiff further recuperated from her injuries by swimming and walking daily. She exercised no visitation with her children during the 3 1/2-month stay in Kansas.

Defendant eventually moved for a temporary custody order and on February 19, 1985, the parties entered into a stipulation providing that defendant would have primary physical custody of both children until the end of the 1984-85 school year and that plaintiff would have primary physical custody during the summer vacation period beginning July 1, 1985. Since the parties' separation in October of 1983 the minor children have resided at the farm with their father from December of 1983 until at least June 1, 1985. ¹

[159 MICHAPP 554] The custody portions of the trial were conducted on April 18 and May 31, 1985. At the conclusion of the May hearing, the trial court awarded the parties joint legal custody with physical custody to alternate between the parties every other school year. Plaintiff was awarded primary physical custody of the children commencing September 1, 1985, for the 1985-86 school year and defendant was awarded primary physical custody of the children commencing September 1, 1986, for the 1986-87 school year. Custody is to be shared by the parties during the summer months. The judgment of divorce was entered August 20, 1985, following which defendant sought in this Court a stay of the custody transfer pending resolution of this appeal. Defendant's request for a stay was denied by this Court by order of September 3, 1985. The parties waived oral argument on appeal. We presume, however, that plaintiff exercised her custody rights for the school year that has just ended.

I.

Defendant challenges the arrangement of alternating physical custody but does not seek reversal of the award of joint legal custody. Defendant argues that the trial court erred in refusing to find an established custodial environment and in thus relieving plaintiff of the burden of establishing by clear and convincing evidence that a change in established custodial environment was in the best interest of the children. M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c). Defendant correctly apprehends the critical issue. Absent the existence of an established custodial environment, the parties compare equally under the totality of factors which determine the best interests of the children, M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3), in which case the trial [159 MICHAPP 555] court was free to order a shared physical custody arrangement. M.C.L. Sec. 722.26a; M.S.A. Sec. 25.312(6a).

The trial court in this case rendered extensive and detailed findings on each of the factors enumerated in M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3). It is clear from these findings that in refusing to find an established custodial environment, the trial court was reluctant to "punish" the plaintiff mother for her misfortune of having been seriously injured at an inopportune time, especially where all other evidence revealed that she was a particularly responsible and self-motivated individual. We share the trial court's concern. However, the Legislature has made a policy decision to standardize the criteria for resolving custody disputes. Baker v. Baker, 411 Mich. 567, 576, 309 N.W.2d 532 (1981). Under the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq., custody disputes must always be resolved in favor of the best interests of the children involved. In accordance with this emphasis on the children's interests, the Legislature has imposed a difficult burden on those who seek to remove children from an established custodial environment:

"(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may:

* * *

"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented [159 MICHAPP 556] clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered." M.C.L. Sec. 722.27(1)(c); M.S.A. Sec. 25.312(7)(1)(c).

We are persuaded on the basis of the evidence presented that the two minor children in this case had an established custodial environment with their father at the time of trial. Both children had lived in that setting all of their lives. Both had established good to excellent academic records at the local school which they attended. For most of the five years immediately preceding the divorce trial, there were long absences on the part of the mother. From some undisclosed date in 1980 until December of 1982, when Cody was between four and seven and Sky between two and five, the plaintiff resided away from the home during the weekdays to attend school at Saginaw Valley State. Defendant and the children's maternal grandmother were the primary caretakers of the...