Wilkins v. Wilkins

• Decision Date: 20 May 1986
• Docket Number: Docket No. 82259
• Citation: 149 Mich.App. 779,386 N.W.2d 677
• Court: Court of Appeal of Michigan — District of US
• Parties: Joan E. WILKINS, Plaintiff-Appellee, v. George S. WILKINS, Defendant-Appellant. 149 Mich.App. 779, 386 N.W.2d 677

Page 677

386 N.W.2d 677

Joan E. WILKINS, Plaintiff-Appellee, v. George S. WILKINS, Defendant-Appellant.

Docket No. 82259.

149 Mich.App. 779, 386 N.W.2d 677

Court of Appeals of Michigan.

Submitted Oct. 16, 1985.

Decided March 17, 1986.

Released for Publication May 20, 1986.

[149 MICHAPP 782] Jacob F. Fahrner, Jr., Ann Arbor, for plaintiff-appellee.

Kenneth B. Williams, East Lansing, for defendant-appellant.

Before V.J. BRENNAN, P.J., and BEASLEY and NOECKER, ^* JJ.

V.J. BRENNAN, Presiding Judge.

Plaintiff, Joan E. Wilkins, and defendant, George S. Wilkins, were married on August 10, 1968. Three children were born during their marriage: George S. Wilkins, III, born February 14, 1974; Charles M. Wilkins, born July [149 MICHAPP 783] 14, 1977; and Nicholas J. Wilkins, born September 19, 1979. Plaintiff and defendant were divorced by order of Livingston County Circuit Court Judge Bert M. Hensick on December 20, 1984. Defendant appeals as of right from the custody award and division of marital property.

Plaintiff filed her complaint of divorce with the Livingston County Circuit Court on December 6, 1982. In the complaint, she requested custody of the three minor children and asked that the parties' personal and real property be equitably divided.

Defendant filed a counterclaim for divorce on January 31, 1983. Defendant requested joint legal custody of the children, but asked that physical custody be awarded to plaintiff. Defendant also filed his answer to plaintiff's complaint on January 31, 1983. He neither admitted nor denied plaintiff's assertion that she should be awarded physical custody of the children.

On March 29, 1984, plaintiff filed a petition to permanently remove the children from Michigan. In the petition, plaintiff stated that defendant had had notice for several months of her intention to return with the children to Evanston, Illinois. She asserted that the move to Illinois would improve the general quality of life for herself and the children and was not intended to deprive defendant of contact with the children. Plaintiff further claimed that she was willing to share the reasonable cost of transporting the children to visit defendant and to otherwise preserve and foster defendant's relationship with the children. No answer to the petition was filed by defendant.

Trial was held on April 6, June 28 and 29, and August 17, 1984.

Following the submission of briefs and written closing arguments, the trial court rendered a written[149 MICHAPP 784] opinion on the issues raised at trial. The trial court indicated that custody had become an issue, but found that there was no indication prior to trial that defendant wanted physical custody. Moreover, the trial court found that it was evident from defendant's testimony that he was not planning to obtain physical custody of the children. Despite the absence of what the trial court believed to be any actual dispute as to physical custody, the trial court examined and applied the best interests of the child factors set forth in Sec. 3 of the Child Custody Act. Under factor (i), the reasonable preference of the children, the trial court found that, because the children were 10 years old and younger, they were not of a sufficient age to express a preference. The trial court found that, because several of the other factors preponderated in favor of plaintiff, physical custody would be awarded to plaintiff. Nonetheless, joint legal custody was awarded to the parties.

A hearing to settle and enter the judgment was held on November 19, 1984. At that time, it was revealed that, prior to the commencement of proceedings on one of the days of trial, Judge Hensick had, without knowing that they were involved in the trial, given plaintiff and the minor children a tour of the courthouse's holding cells. The judge stated that there was no harm meant or intended or resulting from his contact with the plaintiff and the children but he admitted that he had not informed the attorneys of the meeting. Defendant claimed that prejudice had resulted from the meeting.

The judgment of divorce was entered on December 21, 1984. Defendant was ordered to pay $375 a week in child support. He was required to pay alimony to plaintiff in the amount of $25,000 over the next five years and, in addition, $12,000 a year [149 MICHAPP 785] in "permanent alimony" until plaintiff or defendant died or plaintiff remarried. Two-thirds of the parties' equity in the marital home, or $25,000 in cash, was awarded to plaintiff. The parties' condominium, located in Brighton, Michigan, as well as the parties' one-quarter acre lot in Rotunda, Florida, were awarded to defendant. The judgment also provided for the awarding of certain articles of personal property to each of the parties. The present value of defendant's retirement fund at Ford was divided equally between the parties. Defendant's retirement plan and stock option plan were awarded to defendant.

Defendant claims that the trial court reversibly erred in its determination that physical custody should be awarded to plaintiff.

Under Sec. 7 of the Child Custody Act (M.C.L. Sec. 722.21 et seq.; M.S.A. Sec. 25.312(1) et seq., the trial court is to award custody pursuant to the "best interests of the child". M.C.L. Sec. 722.27; M.S.A. Sec. 25.312(7); Deel v. Deel, 113 Mich.App. 556, 317 N.W.2d 685 (1982). The best interests of the child are also considered in joint custody cases. See M.C.L. Sec. 722.26a; M.S.A. Sec. 25.312(6a). The factors to be considered in determining what is in the best interests of the child are specified in Sec. 3 of the Child Custody Act as follows:

"(a) The love, affection, and other emotional ties existing between the parties involved and the child.

"(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the educating and raising of the child in its religion or creed, if any.

"(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

[149 MICHAPP 786] "(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

"(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

"(f) The moral fitness of the parties involved.

"(g) The mental and physical health of the parties involved.

"(h) The home, school, and community record of the child.

"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

"(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.

"(k) Any other factor considered by the court to be relevant to a particular child custody dispute." M.C.L. Sec. 722.23; M.S.A. Sec. 25.312(3).

Review of the trial court's findings by this Court is de novo. DeGrow v. DeGrow, 112 Mich.App. 260, 265, 315 N.W.2d 915 (1982). A reviewing court must appraise the evidence apart from the trial court's findings. Deel v. Deel, supra. Section 8 of the Child Custody Act provides that:

"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).

Our review of the records indicates that the trial court carefully considered all of the above factors of Sec. 3. We find his findings of fact were sufficiently supported by the record. Also, we find no abuse of discretion or legal error.

[149 MICHAPP 787] Defendant's next claim is that the trial court made inadequate findings of fact in regard to plaintiff's petition to remove the children to Illinois. The record does not support this claim. To the contrary, the court's findings are adequate.

Defendant claims that he is entitled to a new trial because of the trial judge's contact with plaintiff and the children.

In order to justify the granting of a new trial on the basis of allegations of misconduct by the trial judge, it must be established that there was actual prejudice resulting from the alleged misconduct. Cole v. DAIIE, 137 Mich.App. 603, 610, 357 N.W.2d 898 (1984); Elsasser v. American Motors Corp, 81 Mich.App. 379, 388, 265 N.W.2d 339 (1978).

In the instant case, defendant failed to establish any prejudice resulting from Judge Hensick's contact with plaintiff and the children and his failure to promptly inform the attorneys of his contact. At the November 19, 1984, post-trial hearing, Judge Hensick explained his actions. He explained that, at the time of his contact with plaintiff and the children, he was unaware that plaintiff and the children were involved in any litigation before the court. He also explained that there was no discussion of any issue relating to the litigation during the tour of the holding cell facilities. He also asserted that the contact with plaintiff and the children had no impact on the manner in which he treated the parties during the litigation. Furthermore, the trial court record reveals no partiality in favor of either of the parties as the result of the judge's contact. Nor was there any assertion made in this regard by defendant. Rather, the transcript of the November 19, 1984, hearing reveals that defendant accepted Judge Hensick's explanation of his contact with plaintiff and the children. At that time, defendant did not indicate [149 MICHAPP 788] any displeasure with the judge's contact and did not request a new trial. Defendant has failed to establish any actual prejudice so as to entitle him to a new...