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.
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,
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,
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. [MCL 339.1610; MSA 18.425(1610).]
Unless defined in the statute, every word of a statute should be accorded its plain and ordinary meaning. MCL 8.3a; MSA 2.212(1);
Dezwaan v Holland Motor Express,
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
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. MCL 722.28; MSA 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,
Upon de novo review, we conclude, as urged by defendant, that there was no established custodial
Custody disputes are to be resolved in the child’s best interests. MCL 722.25; MSA 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 § 3 of the Child Custody Act, MCL 722.23; MSA 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,
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, MCL 722.21
et
seq.; MSA 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, committed a palpable abuse of discretion, or committed clear legal error. MCL 722.28; MSA 25.312(8);
Farrell v Farrell,
Our review of the record convinces us that the trial court did not abuse its discretion in changing the visitation scheduled in the temporary order or in requiring that defendant give telephone notice to plaintiff twelve hours in advance of exercising visitation. The temporary order gave defendant visitation on Tuesdays from 5:00 p.m. to 8:00 p.m. and on alternate weekends. The visitation provision in the judgment of divorce gives defendant visitation on the first, third, and fifth, if applicable, weekends of the month, on alternate holidays, for three consecutive days during the Christmas and Easter school vacations, and for two périods of twenty-one consecutive days during the summer school vacation. The discontinuation of the midweek visitation is supported by testimony that such an arrangement is very disruptive for the child. The testimony further reveals that the relationship between the parties is replete with strife and animosity. Arguably, the extended periods of visitation ordered may serve the father-child relationship better than the midweek evening visitation. See
Anderson v Anderson,
Defendant’s fifth claim is that the trial court abused its discretion in ordering defendant to pay $138 a week in child support.
The award of child support rests in the sound discretion of the trial court, and its exercise of discretion is presumed to be correct.
Hoke v Hoke,
Although appellate review is de novo, the trial court’s factual findings are reviewed for clear error. Beason, supra. A finding is clearly erroneous if the appellate court, on all the evidence, is left with a definite and firm conviction that a mistake was made. Id. The party appealing the support order bears the burden of showing that a mistake was made. Id., p 804; Hoke, supra, p 206.
Having reviewed the record, we find that adequate information was presented to enable the trial court to make a determination of child support. We note that the friend of the court recommendation was calculated using figures presented by the parties and received from defendant’s employer. In addition, the amount awarded is consistent with the amount recommended in the 1990 Child Support Guidelines Manual. Defendant has not convinced us that a mistake was made. The trial court did not abuse its discretion in awarding child support.
Defendant’s sixth claim is that the trial court abused its discretion in awarding alimony.
The award of alimony is within the trial court’s discretion and is to be based on what is just and reasonable under the circumstances of the case.
Lesko v Lesko,
This Court reviews an award of alimony de novo, but must accept the trial court’s factual findings unless they are clearly erroneous.
Beason, supra,
p 805;
Burkey v Burkey (On Rehearing),
Defendant’s seventh claim on appeal is that the division of the marital property is inequitable in light of the evidence presented.
The division of marital assets rests within the discretion of the trial court.
Nielsen v Nielsen,
The goal in distributing marital assets is to reach an equitable distribution of property in light of all the circumstances.
Beckett v Beckett,
After reviewing the record, we find that the division of marital. assets was fair and equitable and are not convinced that we would have reached a different result if we had occupied the trial court’s position. Defendant’s argument asks this Court to make new credibility determinations. We cannot do so. Matters of credibility are for the trial court to determine. MCR 2.613(C). The record supports the trial court’s findings regarding the value of the marital assets. The division of property can be justified by the disparate earning abilities of the parties, defendant’s responsibility in causing the marital breakdown, defendant’s attempt to put marital assets outside plaintiff’s reach, and the fact that plaintiff was awarded custody of the parties’ minor child. In view of the circumstances, we will not disturb the trial court’s property division.
Defendant’s eighth claim is that the trial court
Necessary and reasonable attorney fees may be awarded to enable a party to carry on or defend a divorce action. Lesko, supra, p 406; MCR 3.206(A), An award of attorney fees is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. Kurz, supra, p 297. In 1989, plaintiff earned approximately $12,000. Plaintiff testified that she had substantial debt. The record supports a finding that plaintiff was in need of financial assistance to defend the action. Further, the trial court found that defendant’s actions caused plaintiff to incur debts and that defendant unnecessarily prolonged the proceedings by making spurious claims and allegations. Attorney fees are authorized under such conditions. Lesko, supra. Accordingly, we affirm the award of attorney fees to plaintiff.
Defendant’s ninth claim is that the trial court’s failure to find plaintiff to be at fault is against the great weight of the evidence. Fault is a legitimate consideration in arriving at a property division in a divorce matter. Burkey, supra. The trial court’s findings of fact are reviewed under the clearly erroneous standard.
The trial court made the following findings with regard to the issue of fault:
Plaintiff attributed the breakdown of the marriage to the fact that defendant physically abused her, that he failed to involve her in his personal life or in decisions affecting the family, and that he has long accused her of adultery. Defendant attributed the breakdown of the marriage to plaintiffs adultery and her "dishonest,” "conniving” and "deceitful” nature. He accused her of having affairs with one or two men, of stealing jewelry from a friend, of filing false insurance claims, andthe like. Given defendant’s general demeanor on the stand, the overall tenor of his testimony, and the absence of any credible evidence supporting these accusations, the Court finds them to be without merit. Plaintiff, however, was not without fault. She provoked some arguments, a few of which culminated in defendant’s physical outbursts. Given the testimony of both parties, the Court finds that both parties contributed to the breakdown of the marriage, but that defendant is substantially more at fault than the plaintiff.
This Court gives special deference to the trial court’s findings where they are based on the credibility of witnesses.
Stanton v Dachille,
Defendant’s last claim is that the trial court erred in failing to find that plaintiff was not credible. Credibility is a matter for the trier of fact to ascertain. This Court will not resolve it anew.
People v Vaughn,
Affirmed.