Scott v. Scott

• Decision Date: 08 June 1983
• Docket Number: Docket No. 66801
• Citation: 124 Mich.App. 448,335 N.W.2d 68
• Parties: Richard L. SCOTT, Plaintiff-Appellant, v. Deborah L. SCOTT (Martin), Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 68

335 N.W.2d 68

124 Mich.App. 448

Richard L. SCOTT, Plaintiff-Appellant, v. Deborah L. SCOTT (Martin), Defendant-Appellee.

Docket No. 66801.

Court of Appeals of Michigan.

Submitted Jan. 5, 1983.

Decided March 22, 1983.

Released for Publication June 8, 1983.

Lanoman, Luyendyk, Latimer, Clink & Robb by Jon O. Vander Ploeg, Muskegon, for plaintiff-appellant.

Parmenter, Forsythe, Rude, Gavigan, Van Epps & Briggs by George D. Van Epps and James R. Seastrom, Muskegon, for defendant-appellee.

Before MacKENZIE, P.J., and R.B. BURNS and QUINNELL ^*, JJ.

PER CURIAM.

The parties were granted a divorce February 17, 1981. The judgment provided joint custody of the two minor children, with defendant afforded custody during the school year. Subsequently, both parties remarried. On May 4, 1982, defendant petitioned the trial court to remove the minor children to Columbus, Ohio, claiming that she was originally from that community, that her family was located there, and that her employment prospects were better there. Plaintiff answered, opposing her request, and further petitioned the trial court to award him sole custody of the children. Following an August 20, 1982, hearing on these petitions, the trial court decided in favor of defendant and granted her petition to move out of the state. Plaintiff now appeals.

We note at the outset that, while our review of the trial court's custody determination is de novo, DeGrow v. DeGrow, 112 Mich.App. 260, 315 N.W.2d 915 (1982), we are bound by Sec. 8 of the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq.:

"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." M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8).

We find no palpable abuse of discretion, clear legal error, or findings of fact against the great weight of evidence. The trial court found that the parties were equal in all matters pertaining to the custody of the children. Although the trial court's opinion did not enumerate explicitly the statutory factors to be considered, see Baker v. Baker, 411 Mich. 567, 309 N.W.2d 532 (1981), it is clear that the totality of the factors was considered. The trial court certainly was aware of the specific requirements, as it took testimony from the parties regarding the topics in the custody act and was presented with an investigative report specifically enumerating the statutory factors seriatim. Thus, a remand to expand the findings of fact would be superfluous and a burden not only upon the circuit court's resources but also upon the parties.

Moreover, plaintiff does not challenge the trial court's methods, but rather claims that, by allowing defendant to move to Ohio, plaintiff is essentially deprived of his joint custody of the children and, accordingly, sole custody should be granted to him. After reviewing the record and the briefs of the parties, we find no basis for reversing the trial court's denial of plaintiff's petition for sole custody. Joint custody was originally granted, presumably in the best interests of the children, and the trial court correctly concluded that joint custody should continue. See Longhi v. Longhi, 119 Mich.App. 41, 325 N.W.2d 617 (1982).

Turning to defendant's request to move to Ohio, this Court has found that the decision to grant or deny such a request:

"is entrusted to the discretion of the trial judge, Lem v Lem, 12 Mich App 174; 162 NW2d 683 (1968), and his decision will be affirmed unless he commits a palpable abuse of discretion, MCL 722.28; MSA 25.312(8)." Hutchins v Hutchins, 84 Mich.App. 236, 238, 269 N.W.2d 539 (1978).

Furthermore, this Court stated in Henry v. Henry, 119 Mich.App. 319, 323, 326 N.W.2d 497 (1982).

"We believe the appropriate test to the applied in cases dealing with removal petitions is that articulated by the New Jersey Court in D'Onofrio v D'Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), aff'd 144 NJ Super 352; 365 A2d 716 (1976), adopted by reference in Watters v Watters, [112 Mich App 1; 314 NW2d 778 (1981) ]."

D'Onofrio recognized the mutual rights involved, and outlined factors to be considered to accommodate them:

(1) "It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children."

(2) "It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply...