Dempsey v. DempseyDempsey v. Dempsey
- Reporters:
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- Before:
- Bowles
On March 14, 1979, following a contested trial, custody of the parties’ three minor children was awarded to defendant father. Plaintiff mother by leave of the Court presses her delayed appeal.
On July 19, 1977, plaintiff filed a complaint for divorce and sought custody of her three children. On August 29, 1978, defendant was awarded temporary custody. Plaintiff continued to care for the children. On October 30, 1978, the final report of the friend of the court recommending that custody of the children be awarded to defendant was filed. Plaintiff objected to the report of the friend of the court. Permanent custody. of the children was awarded to defendant and judgment entered following the court’s March 27, 1979, decision.
Proofs at trial showed that plaintiff sought divorce on the basis that defendant did not spend any time with her or the family but, rather, bowled and went on snowmobile trips without them in his leisure time. Defendant also worked nights and frequently was not home in time to eat dinner with the family. Plaintiff did all the cooking, sewing, and laundry for the children, bought their clothes, took them to the doctor, and attended parent-teacher conferences. She testified that defendant did not share these responsibilities. Plaintiff also testified that she took the children to church and Sunday school and that defendant did not attend. To his credit, however, she also stated that defendant was a hard-working man, spent the money he earned on the family, and that he had been a good father. Additionally, there was testi
At the time of trial the older children were nine and seven and the youngest child, Eric, was three. Eric suffered from epilepsy and had seizures. His epilepsy has been relieved by new medication. Plaintiff assumed for three years the care of Eric with relation to his epilepsy, working with the Traverse Bay Intermediate School Special Education Program (TBA), receiving training on home therapy; defendant did not participate. Defendant had suggested an abortion when plaintiff mother was carrying Eric. However, after Eric’s birth, defendant showed an interest in him. Defendant testified as to his care of Eric, playing with him and reading him stories. Eric’s father also took the boy on errands with him. As far as defendant’s failure to go to the hospital with Eric when the boy was suffering from seizures, defendant testified that he was in the middle of work, couldn’t get away, and did not realize the seriousness of the situation.
The testimony on behalf of plaintiff by neighbors and staff members of TBA showed that she was coping well with Eric’s seizures and his special education home program. At the time of trial Eric was attending school two days a week while the home program of therapy continued. It was shown that the program for Eric could continue with someone other than plaintiff supervising. However, such a change would require a lot of extra work. According to testimony, if defendant had custody it would take some time to train him to be able to continue with Eric’s program.
After the filing of the divorce complaint the parties continued to reside together in the marital
In regard to economic circumstances, plaintiff worked part-time with an income of $1,000 to $3,000 in 1978. During 1978 defendant earned some $14,000 to $15,000.
At trial defendant sought to introduce the report and recommendations of the friend of the court. The trial judge, following objection by plaintiff’s counsel, declined to receive the report. However, the record reveals the following comment made by the judge:
“The Court will sustain the objection. It is an unnecessary inquiry, since the Court is aware of the recommendation.”
After granting custody to defendant the court reserved judgment as to whether plaintiff should pay any support. The court suggested that she could provide regular day care for the children instead.
Pursuant to
“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 clear legal error on a major issue.”
Review is de novo, but special consideration is given to the trial court’s findings of fact. Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977).
I
The Child Custody Act requires the court to use the standard of the best interests of the child in determining the parent to whom custody should be awarded.
The interview of a minor child is a difficult matter requiring tact and sensitivity, but it is often helpful in a fair adjudication of the child’s best interests. The court does have the discretion to determine whether the child is of sufficient age to express a preference. In Roudabush v Roudabush, 62 Mich App 391, 394; 233 NW2d 596 (1975), this Court held that it is not mandatory for the trial judge to consider the preference of the child. That Court also declared, however, that sound practice dictated that the • child be interviewed when there are significant environmental differences between the parents. In Lewis v Lewis, 73 Mich App 563, 566; 252 NW2d 237 (1977), one of the parties requested that the court interview the children. The court refused without explaining why it declined to interview the children. This was found to be reversible error.
In this case the better practice, in order to dispel all doubts concerning the custody decision, was for the judge to state on the record the reason or reasons for not speaking with the children. Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978), In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975). However, our ultimate disposition of this case makes it unnecessary to remand on this issue.
II
The law has long been settled that the report of the friend of the court is not generally admissible
Ill
Among the ten factors to be considered in determining the best interests of the child is:
“The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.”
Plaintiff urges that this provision of the Child Custody Act is unconstitutional as violative of her rights to equal protection and due process of law. It is asserted that
In Reed v Reed, 404 US 71, 76; 92 S Ct 251; 30 L Ed 2d 225 (1971), which involved equal protection and discrimination based on gender, Mr. Chief Justice Burger spoke for a unanimous Court:
“A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” (Citation omitted.)
This has been called the rational basis test.
In a child custody dispute the economic capacity of the parties has a rational relationship to the best interests of the child. The central and decisive point is that in contemplating what is best for a child the economic well-being of the child must be considered and hence the relative circumstances of the parties. There are economic differences, not gender differences, reflected in
As to economic discrimination, the rational basis test was applied by the Supreme Court in
United
Unlike the problem in Boddie, plaintiff is not excluded from exercising her right to seek and win custody on the basis of her marginal economic situation. The record in the case at bar shows the plaintiff had a relatively low rating on economic circumstance. However, such a rating is not conclusive in making a determination concerning custody. There is neither a denial of due process nor of equal protection of the law fostered by the Child Custody Act. The legislative determination that relative economic circumstances be weighed as one of the ten criteria in determining the best interests of the child has a rational basis. It cannot be overemphasized that in a child custody dispute the rights of the children are paramount.
IV
We now turn to a consideration of whether the trial court’s grant of custody to defendant was against the great weight of the evidence.
In evaluating the statutory criteria of
“Defendant has a substantially greater capacity and disposition to provide the children with food, clothing, medical care and other material needs. He has worked as a mechanic for a substantial period of time and has a
The factor of stability indicates a preference that Defendant be the custodial parent. The children have lived in the same community and the same home since 1974. Defendant has a greater interest and the capacity to continue to maintain that home. Plaintiff has indicated an intention to find housing but has no fixed plans.
“The Court also considers as relevant the motivation for divorce. For many years Plaintiff has been the parent with most direct and frequent contact with the children in their day to day supervision, and Defendant has assumed the wage earner role and has been out of the home for extensive hours because of his employment. Plaintiff is the one principally interested in the divorce. She has developed personal interests which take her from the home. Defendant has responded to the change of circumstances since the filing of the Complaint by working shorter hours, being available for supervision of children through the breakfast and preparing their lunches.. Defendant has further demonstrated the greater ability to change his personal routine and to develop constructive plans for care of the children if accorded custody.”
As to the property disposition, the court awarded defendant the marital home, two of the three cars, first pick of the two snowmobiles, checking and savings bank accounts, a garden
The trial judge evaluated the relevant economic circumstances of the parties in such a way as almost to preclude plaintiff from gaining custody. Pre-eminent and decisive reliance was placed upon defendant’s superior economic position. True, the employment of the plaintiff had been sporadic and part-time, but she had had three pregnancies, the responsibility of caring for the children, and the youngest child, not three years old, was an epileptic who required special care. This care was provided by plaintiff. Indeed, the trial judge in reference to stability of environment,
“Defendant has a greater interest and the capacity to continue to maintain that home.”
Further, the property disposition was such that the plaintiff probably could never gain custody in the future, keeping in view her very limited economic capacity and the great emphasis which the court placed on relative economic circumstances.
The court further ordered in regard to the plaintiffs role in supporting the children:
“To as nearly as possible parallel the prior conditions, the Court will reserve any requirement for payment of support with the suggestion that Plaintiff might make a contribution by services, providing regular day care for the children and thus eliminating the cost of outside babysitters.”
The Child Custody Act wisely addresses the best interests of the child and further requires that in a custody determination the ten criteria or factors be evaluated with specific findings by the trial court. This is not to suggest that the resolution of a custody case lies in a box score evaluation; that that party who is accorded the winner on six factors should necessarily “win”.
A child custody determination is much more difficult and subtle than an arithmetical computation of factors. It is one of the most demanding undertakings of a trial judge, one in which he must not only listen to what is said to him and observe all that happens before him, but a task requiring him to discern and feel the climate and chemistry of the relationships between children and parents. This is an inquiry in which the court hopes to hear not only the words but the music of the various relationships.
Here, the evaluation of factors placed undue reliance upon economic circumstances in relation to other factors. Economic matters are of considerable consequence in childrearing, but not preponderantly more important than other factors. Indeed, it can be argued that economic circumstances never should be conclusively determinative. The reason is plain. In most cases the mother will be disadvantaged, although with changing life patterns this is not always so. It is not merely a question of prejudicial effect upon mothers; the danger in placing undue reliance on economic
Upon review of the record we conclude that the award of custody of the minor children to defendant was clearly erroneous. Consequently, the trial court is reversed. Since the disposition of the property of the parties was related intimately to the child custody determination, the case must be remanded to. the trial court for a reassessment of child support, alimony, and property disposition.
Reversed and remanded.