Thames v. Thames

• Decision Date: 16 September 1991
• Docket Number: Docket No. 132389
• Citation: 477 N.W.2d 496,191 Mich.App. 299
• Parties: Woudnesh E. THAMES, Plaintiff-Appellee, v. Harold O. THAMES, Defendant-Appellant. 191 Mich.App. 299, 477 N.W.2d 496
• Court: Court of Appeal of Michigan — District of US

Page 496

477 N.W.2d 496

Woudnesh E. THAMES, Plaintiff-Appellee, v. Harold O. THAMES, Defendant-Appellant.

Docket No. 132389.

191 Mich.App. 299, 477 N.W.2d 496

Court of Appeals of Michigan.

Submitted June 4, 1991, at Detroit.

Decided Sept. 16, 1991, at 9:45 a.m.

Released for Publication Dec. 16, 1991.

[191 MICHAPP 300] Hill Lewis by Wendy L. Potts, Birmingham, for plaintiff-appellee.

Acevedo & Baggott by Nancy L. Baggott, Detroit, for defendant-appellant.

Before DANHOF, C.J., and DOCTOROFF and BRENNAN, JJ.

PER CURIAM.

Defendant appeals as of right from a judgment of divorce entered on June 11, 1990, and raises ten issues on appeal. We affirm.

The parties married on April 17, 1972, and have one minor child, Viticia, born March 15, 1978. Plaintiff filed for divorce in 1987, but the action was dismissed when the parties reconciled in March 1988. Plaintiff filed this action on November 16, 1988. Trial was held in March 1990.

[191 MICHAPP 301] During the marriage, the parties acquired a home, a pension, automobiles, jewelry, a fur coat, and debts. The trial court awarded plaintiff custody of the minor child, rehabilitative alimony for three years, and all the marital assets except for defendant's pension and three older cars. Defendant was ordered to pay $13,000 of plaintiff's attorney fees and to pay $5,420 directly to plaintiff. Defendant was also ordered to discharge his father's lien on the marital home.

Defendant's first claim is that the trial court erred in ordering defendant to deliver to plaintiff the assets of an irrevocable trust established for the benefit of the parties' minor child.

On October 13, 1988, defendant transferred $5,081.18 and 138 shares of Ford Motor Company common stock into an irrevocable trust for the benefit of the parties' minor child. The trust was also made the beneficiary of defendant's life insurance policy through his employer. Defendant's cousin was appointed trustee. Defendant did not inform plaintiff that he was setting up the trust. Plaintiff filed the complaint in this action on November 16, 1988. Defendant claimed he did not know that plaintiff had filed for divorce until December 9, 1988, when he was served with the complaint. The trial court found that defendant established the trust in anticipation of the divorce and to put the assets contained in the trust beyond plaintiff's reach. The trial court then found the trust corpus to be an asset of the marital estate subject to division between the parties.

This Court is required to accept the factual findings of a trial court in a divorce case unless those findings are clearly erroneous. Beason v. Beason, 435 Mich. 791, 805, 460 N.W.2d 207 (1990). A finding is clearly erroneous if the reviewing court, on all the evidence, is left with a definite [191 MICHAPP 302] and firm conviction that a mistake has been committed. Id. Under this standard, the reviewing court cannot reverse if the trial court's view of the evidence is plausible. Id. Deference is given to the special opportunity of the trial court to judge the credibility of witnesses. MCR 2.613(C).

A divorce case is equitable in nature, and a court of equity molds its relief according to the character of the case. Wiand v. Wiand, 178 Mich.App. 137, 144, 443 N.W.2d 464 (1989), quoting Schaeffer v. Schaeffer, 106 Mich.App. 452, 457-458, 308 N.W.2d 226 (1981). Once the court acquires jurisdiction, it will do what is necessary to accord complete equity and to conclude the controversy. Wiand, supra, 178 Mich.App. at p. 144, 443 N.W.2d 464. Generally, a court has no authority to adjudicate the rights of third parties in divorce actions. Id., at p. 146, 443 N.W.2d 464. An exception to the general rule exists when it is claimed that a third party has conspired with one spouse to deprive the other spouse of an interest in the marital estate. Id. See also anno: Propriety of consideration of, and disposition as to, third persons' property claims in divorce litigation, 63 ALR3d 373. The court, therefore, has authority to find that assets were fraudulently transferred to a third party to deprive a spouse of an interest in marital property. It follows that another exception exists for situations like the one before us. One spouse cannot deprive the other of an interest in the marital estate by transferring marital property into a trust for the benefit of a third party. Having reviewed the record in this case, we are not left with a definite and firm conviction that a mistake has been committed. The trial court's findings are not clearly erroneous. Accordingly, we affirm the trial court's determination that the trust corpus was an asset of the marital estate subject to division between the parties.

[191 MICHAPP 303] Defendant's second claim is that the trial court abused its discretion in allowing plaintiff to waive the child's social worker-client privilege and in admitting the social worker's testimony.

The relevant privilege statute provides in pertinent part:

[A] communication between a certified social worker, ... and a person counseled is confidential. This privilege is not subject to waiver except ... where so waived by the client or a person authorized to act in the client's behalf. [M.C.L. Sec. 339.1610; M.S.A. Sec. 18.425(1610).]

Unless defined in the statute, every word of a statute should be accorded its plain and ordinary meaning. M.C.L. Sec. 8.3a; M.S.A. Sec. 2.212(1); Dezwaan v. Holland Motor Express, 189 Mich.App. 575, 473 N.W.2d 788 (1991); Victorson v. Dep't. of Treasury, 183 Mich.App. 318, 323, 454 N.W.2d 256 (1990). According to the plain language of the statute, any person authorized to act in the client's behalf can waive the privilege. Plaintiff, as the child's mother and a joint custodian, is a person authorized to act in the child's behalf and, hence, could waive the privilege. The fact that the content of the social worker's testimony was not favorable to defendant is irrelevant to the issue whether the privilege could be waived by plaintiff. The trial court did not abuse its discretion in allowing plaintiff to waive the child's social worker-client privilege or in allowing the social worker to testify as an expert witness. King v. Taylor Chrysler-Plymouth, Inc., 184 Mich.App. 204, 214-215, 457 N.W.2d 42 (1990).

Defendant waived review of his assertion that the testimony was inadmissible hearsay by failing to object to the testimony on that basis at trial. An [191 MICHAPP 304] objection based on one ground is insufficient to preserve an appellate attack based on a different ground. MRE 103; People v. Winchell, 171 Mich.App. 662, 665, 430 N.W.2d 812 (1988). Defendant's assertion that the trial court abused its discretion in disregarding plaintiff's disobedience of a prior counseling order is without merit. We note that the record indicates that defendant himself violated the order. Defendant's assertion that the trial court abused its discretion in adopting the social worker's testimony goes to its weight, not admissibility, and is without merit. The trial court's view of the evidence is plausible, and its findings are not clearly erroneous.

Defendant's third claim is that the trial court erred in awarding legal and physical custody of the parties' minor child to plaintiff.

This Court must affirm all custody orders unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or committed clear legal error on a major issue. M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8).

Defendant argues that the trial court erred in failing to determine whether an established custodial environment existed.

We agree with defendant that the trial court in this case failed to make a finding regarding whether an established custodial environment existed. Where a trial court fails to make a finding regarding the existence of a custodial environment, this Court will remand for a finding unless there is sufficient information in the record for this Court to make its own finding by de novo review. Bowers v. Bowers, 190 Mich.App. 51, 475 N.W.2d 394 (1991); DeVries v. DeVries, 163 Mich.App. 266, 271, 413 N.W.2d 764 (1987).

Upon de novo review, we conclude, as urged by defendant, that there was no established custodial [191 MICHAPP 305] environment. Absent the existence of an established custodial environment, the preponderance of the evidence standard applies, and the trial court was free to award custody simply by determining the child's best interests. Baker v. Baker, 411 Mich. 567, 579, 309 N.W.2d 532 (1981).

Custody disputes are to be resolved in the child's best interests. M.C.L. Sec. 722.25; M.S.A. Sec. 25.312(5). To determine the best interests of the child, the trial court must consider and explicitly state its findings and conclusions with regard to each of the eleven factors set forth in Sec. 3 of the Child Custody Act, M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3). On review, considerable deference is given to the superior vantage point of the trial judge respecting issues of credibility and preferences under the statutory factors. Lewis v. Lewis, 138 Mich.App. 191, 193, 360 N.W.2d 170 (1984).

The trial court in the instant case carefully addressed each of the statutory factors, and its findings of fact are supported by the record. Having reviewed the record, we conclude that the trial court's findings were not against the great weight of the evidence and that the trial court did not commit a palpable abuse of discretion or commit clear legal error. Accordingly, the award of custody to plaintiff is affirmed.

Defendant's fourth claim is that the visitation order was an abuse of the trial court's discretion.

Visitation disputes are governed by the Child Custody Act, M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq. This Court reviews a visitation order de novo, but will affirm the order unless the trial court made findings of fact against the great weight of the evidence,...