162 N.W.2d 89 | Mich. Ct. App. | 1968
EDDINGER
v.
EDDINGER.
Michigan Court of Appeals.
Wilson & Stone, for plaintiff.
Mustard, Clagett & Everett, for defendant.
J.H. GILLIS, J.
This appeal arises on a petition to modify a judgment of divorce with respect to custody of a minor child. The parental contestants are Stephen and Lois Eddinger who were divorced in January, 1964. A son, James, the subject of the controversy, was born to Stephen and Lois, born in April, 1962. The mother was successful as petitioner in this action to modify the judgment. The modification was entered November 3, 1966. The father has appealed.
Custody of James was originally awarded to his father pursuant to a stipulation entered as part of the judgment of divorce and property settlement. The stipulation recited that the mother was limited by a low earning capacity and believed that the best interests of the child would be served by leaving him with the father and particularly under the care of the paternal grandmother. The father at that time was financially unable to contribute monetarily to the support of the child and for this reason as well, as indicated by the record, the mother agreed to place custody of the child with the father.
Every indication is that James is well-loved and desired by all parties. The grandmother in particular *638 seemed to provide good care to the child during his residence with her.
In her petition to modify the judgment of custody, the mother alleged that by change of circumstances since entry of the original order, the best interests of the child would be served by awarding custody to her. She set forth and proved to the satisfaction of the trial judge that she has prepared a home for her son and is now steadily employed and able to provide for his needs. It was shown, moreover, that the father is now gainfully employed and able to contribute monetarily to the support of his son.
The many legal and equitable axioms with which the bench and bar are familiar are hollow words when we deal with the custody of children. Foxall v. Foxall (1947), 319 Mich. 459; House v. House (1962), 367 Mich. 350. In each case "the welfare of the child is paramount to all other considerations." Lazell v. Lazell (1935), 271 Mich. 271, 274.
Plaintiff has made her showing of changed circumstances which, we believe, would allow the trial judge to find that the best interests of the child would be served by award of custody to the mother. We are convinced that the changed circumstances controlling the present petition are those economic and social circumstances set forth by the mother. The consent to custody at the original determination was financially oriented and did not concern the fitness of either parent. In this regard the present action differs from Hentz v. Hentz (1963), 371 Mich. 335, where fitness was in issue at the original custody determination. As our Supreme Court stated in Vines v. Vines (1955), 344 Mich. 222, 225, 226:
"We do hear chancery cases de novo, but we are reluctant to reverse, except for very potent reasons, where the trial judge did not abuse his discretion *639 in making his determination as to what was for the best interest of the child."
Finding no abuse of discretion or error on the part of the trial judge, the judgment granting modification is affirmed, without costs.
HOLBROOK, P.J., and BURNS, J., concurred.
