*1 Moser Moser v v MOSER MOSER Rapids. January at Grand 118971. Submitted Docket No. 4, 1990. Decided June Moser, defendant, Jr., Moser, Plaintiff, L. were and Diane E. Gale Court, L. Bos- Calvin of the Ottawa Circuit divorced nian, J., parties’ was custody two minor children of the and appealed. plaintiff. granted to Defendant Appeals held: The Court awarding permanent 1. trial court did not err defendant, pursuant though plaintiff even of the children to order, for of the children interim prior approximately of divorce. fifteen months findings regarding specific the absence The court made defendant, and environment with of an established custodial great weight findings of the evidence. are not those palpable nor abuse of discretion The court committed neither awarding permanent custody of the error in a clear plaintiff. children to splitting marital not err in the total 2. The trial court did parties. evenly all the The court considered estate between factors, ample support for and there is in the record relevant those factors. The division of the the court’s as to equitable. marital estate was per awarding $65 trial court did not err in defendant circumstances, awarding per alimony. $65 week in Under the proper equitable alimony of the exercise week court’s discretion. Affirmed. Kelly, J., custody issue. dissented as to the child Michael that, finding erred in
He hold that would custody had been it was the initial divorce action and because tempo- period during the defendant had at issue fifteen-month children, precluded rary custody from the court was determining existed that an established custodial environment References 915-918, 927, 617, 625, 653, 2d, Separation §§ Am Jur Divorce 970, 974. 41 ALR4th 481. distribution doctrine. Divorce: with the defendant. He would find an established custodial environment in defendant and would reverse court’s holding precluded concluding that it was from that an estab- lished custodial environment existed and remand to the trial *2 custody court for determination based on the existence of a custodial environment with the mother from the date of the through change custody interim order the date of the of the Custody change custody order. from the date of the of the order hearing to the date of the on remand would not be considered. Custody Appeal. — — 1. Parent and Child Child judgments All orders and of a circuit court in a child appeal judge matter must be affirmed on unless the trial made great weight the of evidence or commit- palpable ted a abuse of discretion or a clear error on a (MCL major 722.28; 25.312[8]). issue MSA Custody. — 2. Parent and Child Child temporary custody The fact that a mother had of her minor period pursuant children for a of fifteen months to an interim prevent in a divorce action does not the court from finding that no established custodial environment in existed the granting permanent mother or from child to the chil- dren’s father on the basis that it is in the best interests of the children to do so. Property Appeal. — —
3. Divorce Division Appeals property The Court of reviews settlements in divorce cases de modify novo on the record but will not reverse or property division unless convinced that an abuse of discretion occurred or that it would have reached a different result it occupied position the of the trial court. Property — 4. Divorce Division. objective arriving property at a settlement is to attain a equitable light division which is fair and of all the circum- stances; making property, a division of the trial court must marriage, examine the duration of the contributions of the parties estate, joint parties’ to the the station in life and earning abilities, past misconduct, fault or and other circumstances. Alimony Appeal. — — 5. Divorce grant alimony or denial of lies within the sound discretion of court; Appeals the modify trial the Court of will not an award alimony unless it is convinced that an abuse of discretion occurred or that it would have reached a different result had it occupied position of the trial court. Moser Moser v op Opinion the Court Alimony — — Fault. 6. Divorce alimony must consider computing award of A trial court parties to marriage, of the contributions duration abilities, earning estate, fault in life and joint station their misconduct, equitable circumstances. past and other Hoogeboom, plaintiff. for C. Kenneth Wilson, & Herman- Nolan Potuznik, Spaniola, Potuznik), for defendant. son, Denis V. P.C. (by Kelly P.J., Brennan, and Michael Before: Cynar, JJ. Moser, as Defendant, appeals L. Diane Cynar, on of divorce entered right from 1989, trial Ottawa a bench before after July this Court August Court. On Circuit immediate consid- motion for defendant’s *3 granted proceed- for eration, stay denied her motion but affirm. ings. We erred argues first that
Defendant minor chil- of the awarding permanent custody Moser, E. Gale marriage plaintiff, to dren from disagree. Jr. We in na is judgment
Because a divorce v De de novo. DeVries ture, appellate review is Vries, 266, 269; 764 413 NW2d App 163 Mich (1987). However, our of child deter custody review 722.28; MSA minations limited MCL by 25.312(8), provides: which expedite the resolution of a child To
dispute prompt adjudication, final all or- judgments of the circuit court shall be ders and affirmed on findings appeal judge made unless weight great of evi- palpable a abuse of discretion dence or committed major error on a issue. or a clear App 114 184 Mich 111 Opinion of the Court Nevertheless, the trial court’s to a ability modify previous custody is itself limited by MCL 25.312(7)(l)(c), 722.27(l)(c); MSA provides: which (1) If custody dispute a child has been submitted original to the circuit court anas action under this act or has arisen incidentally from another action in the circuit court judgment circuit court or an order or of the court, for the best interests of the child the
may: (c) Modify or previous judgments amend its or proper orders for cause shown or because of change of circumstances until the child reaches age. years of The court shall not modify amend previous judgments its or orders or issue new change order so as to environment of the established custodial presented
a child unless there is convincing clear and evidence that it is in the best interest of the child. The custodial environment child appreciable is established if over an time naturally the child looks the custodian in that guidance, discipline, environment for the necessi- life, parental ties of age comfort. The of the child, environment, physical and the inclina- tion of the nency perma- custodian and the child as to relationship shall also be considered. [Emphasis added.] Curless, See also Curless v 673; (1984) NW2d (affirming trial court’s award permanent father where mother custody prior to final of di- vorce). case, pursuant
In this order, interim defen- *4 dant had of the children for fifteen prior about months to issuance of the trial court’s written on following May the divorce trial which concluded on May opinion, In its specific findings court made Moser v Moser Opinion of the Court supported fact, record, which we find are in the regarding the absence of an established custodial stating pertinent defendant, environment with part: capacity disposition competing par- food, provide clothing, ties to medical care or other the children with recognized
remedial care permitted and of medical under the laws of this state in lieu care, and other material needs. gain-
This factor favors the father. Plaintiff is fully employed and defendant is not but with plaintiff paying adequate support the have each would provide capacity physical necessities for the children. disposition
Defendant does not have the to do so plaintiff. example as does children were call his sister to care for An each of the when plaintiff need of attention had to Ryan, ill the chicken pox, injured and to take Sarah who was for medi- cal treatment at a time when not defendant was engaged in employed but extracurricular activities providing which she chose over the care for her children. home, school and community record of the father, espe- children is a factor which favors the Sarah,
cially the thirteen the case of Sarah the older child. year daughter, doing very old poorly in primary school while under defendant’s During care. the first semester of her seventh home, grade, when her father lived at she missed semester, days three of school. The second after parties separated the mother, ing living and one half and she lived with her days Sarah missed Dur- sixteen school. eighth grade
the first six weeks of the while mother, already with her she missed seven days of school. Her mother claims excessively Sarah ill no but there is identifica- pattern tion of the illnesses. The seems more plaintiff’s testimony consistent with dant that defen- stayed approximately until fifteen bed *5 App 184 Mich Opinion of Court go the children are scheduled minutes before require testimony that she doesn’t school and his anything they that don’t want
the children to do to do. parent who is more definitely Sarah needs a on better organized and structured and insistent performance from her.
The trial court concluded: indicates that Mrs. Moser is basi- evidence parent cally disfunctional as a and home- [sic] occupy which her maker. She chooses activities time, marily dren pri- away take her from the home and are gratifying
self without benefit for her chil- family. a choice is to be made or When these and her children she between activities Although job her the father’s chooses activities. significant him the home for a away will take from working period is day, of each this Court believes he consistent, capable providing reliable more upon the children structure the activities of predictable outcomes for their behavior.
We do not find that the court’s evidence, great weight nor were "palpable that court committed abuse of awarding discretion or a clear error” permanent plain- of the minor children to 25.312(8). 722.28; tiff. MCL MSA argues Defendant next the trial court erred in its division of the marital estate. The trial court split evenly the total marital estate between the parties, however defendant claims she should have more a one-half share. been awarded than Once again, disagree. we
Though our
settlements
property
review
record,
divorce cases is de novo on the
we will not
our
for that of the trial court
substitute
unless we are convinced that an abuse of discre-
are convinced we
tion has occurred
we
would
Moser v Moser
op
Opinion
the Court
Wilson,
v
have reached a
Wilson
different
result.
(1989).
522-523;
Our the trial written in court’s this matter indicates that the trial court consid- ered all Further, of the above factors and more. our review of the record indicates that there was ample support for the court’s respect with to those factors. The trial court did not abuse its discretion, nor do we find that we would have reached a different result in this case. The division of the total marital assets in equita- this case was ble. defendant
Finally, argues that unpersuasively the trial court erred in awarding her "only” $65 per week in alimony.
The standard of review of an alimony award by our Court is the same as that for property divi- Kurz, sions. Kurz v 295; 178 Mich (1989). Moreover, NW2d 782 the factors that are to be considered by at arriving appropriate award of alimony are the same as well. Id.
In affirming the alimony award in this case as a proper exercise of the lower court’s discretion, we note per week sum was $65 ordered the court by paid to be by plaintiff indefi- nitely, and in addition to an award of alimony gross $37,295 in the amount of paid to be at week, per rate of bringing $110 defendant’s weekly up to alimony for about years following $175 6V2 App 111 Kelly, J. Michael J. Dissent of di- Moreover, under the divorce. $20,000 savings she vorce, retains defendant at home as a beautician working accumulated marriage, years the first few during during the incurred is for all debts plaintiff liable that defen- Further, indicates marriage. the record though she employment gainful capable dant to seek work minimal effort only has made note, did the trial court also as retraining. We has apparently that while defendant opinion, its not pursue she did problems minor health some alleged lack of an additional medical care because Europe finances, trip for a instead opting circumstances, we her children. Under thát we would have not convinced definitely are from that of reached a result different court.
Affirmed.
Brennan, P.J., concurred. (dissenting). Kelly, I believe
Michael *7 declining in to determine whether trial court erred with environment existed an established custodial stated: the defendant. The court and has This is the initial divorce action precluding this Court from conclud- been at issue has been ing that an established environment made for the children. environment
I find an custodial established obtained defendant mother. She the entered Feb- pursuant to an interim order care, her granted and that ruary and control of the children. education custody, 14, 1988, and December Trial was commenced grant- 3, court’s May concluded 19, May husband is dated ing custody plaintiff 1989, change of effecting and 119 Moser v Moser 1990] Kelly, Michael Dissent matters was entered of all disposition custody and not have been 5, may 1989. The environment July to me irrele but that seems exemplary, ideal or more The fifteen if not unattainable. vant to create a de served temporary custody months To custodial established facto environment. 673; Curless, 137 App Mich Curless v that extent (1984), require a further injects 921 357 NW2d it have been may I think of stability, ment Baker, 411 Baker v Compare decided. wrongly (1981); DeVries v 532 567; Mich NW2d De (1987). 266; 413 NW2d Vries, App 163 Mich a 1989, conducted on hearing was July On defen- brought by the proceedings stay motion to in the filed already been appeal An dant wife. motion purpose and Appeals Court of pending the proceedings stay request attorney defendant’s appeal. outcome court erred that argued essentially existing presently not a ruling that there was Counsel stated: environment. custodial that’s point out to the Court simply I would error, totally it’s at least we believe totally error, to the case of—MCL I make reference and 722.27(l)(c) 25.312(7)(l)(c)], v Ka also Arndt [MSA (1984), sem, NW2d 135 Mich [353 Blaskowski, App 1 Blaskowski v [320 (1982). rules have been And those NW2d 268] I will years, and in the last several established quote: it and case law make "Michigan statutory changing custodial of an established that dear improper unless the child is of a environment convincing evi clear and presented is Court of the child.” it in the best interest dence 722.27(l)(c), v that’s Arndt MCL also And Kasem, quoted. previously *8 argument, pages more twenty or After as follows: ruled court trial 184 by Michael Kelly, Dissent going deny Court is to stay the motion for proceedings. I particularly feel this was not a close question regard to the custody. issue of And Court, Supreme through their edicts and rules,
through their court have made a priority disputes them, item of custody resolving and I paramount think that is to this case. The court then went on to deny the defendant stay of thirty days for request counsel to emer- gency relief in the Court of Appeals. Although I think it is rather clear how the trial court would rule if it were required to decide the issue in the context of a custodial environment having been established mother, with the I it feel would be inappropriate to bypass such a procedure. The decision, circuit judge’s based it largely as was on the mother’s inadequate attention, care and undercut not only by the court’s own states that emotional ties between the competing parties mother, favored the but also friend of the court recommendation grant the mother for one year and then "reevaluate situation.”
I would reverse the trial court’s holding that it precluded from concluding that an established custodial environment existed and remand to the trial court for a custody determination based upon the existence of a custodial environment with the mother from the order, date of the interim Febru- ary through the date of the change of the order, May Custody from May 23, 1989, to the date of hearing on remand is not to be considered.