Gulyas v. Gulyas
Gulyas v. Gulyas
Opinion of the Court
Plaintiff appeals from the opinion and order of the trial court awarding custody of the parties’ 6-year-old daughter to the defendant, pursuant to the provisions of the child custody act of 1970.
It is well settled that, with respect to child custody disputes, all orders and judgments of the circuit court should 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. MCLA 722.28; MSA 25.312(8).
MCLA 722.25; MSA 25.312(5) provides in pertinent part as follows: "When the dispute is between the parents * * * the best interests of the child shall control.”
MCLA 722.23; MSA 25.312(3) defines "best interests of the child” to mean "the sum total of the following findings to be considered, evaluated and determined by the court: * * * ”. The section thereafter enumerates nine specific factors which
In reviewing the trial court’s findings with regard to the factors to be considered the trial judge found the competing parties to be equal with respect to subprovisions (a), (c), (f), (g) and (h). The court further found that the evidence weighed in the defendant-father’s favor as to subprovisions (b), (d) and (e). The court’s findings with respect to (b), (d) and (e) read as follows:
"2. Both parties have the capacity to give love and affection to the child but the wife’s career and need for obtaining a better livelihood heretofore has diminished her manifested ability to care for the child other than in Day Care homes. Her disposition towards the child is shown by her testimony that she would give up her job if she were awarded the child. Whether she actually would do so is a question. Heretofore she obviously felt that her job would not interfere with the child’s care.
"4. The child was with the husband after the wife left and cared for by his mother. For five months, the child was in New York. Since October 2, 1975, the child has been with the father in Michigan. She has been attending a private school in Michigan, and has received care from the husband’s mother with whom they live. There is a desirability of maintaining continuity of stable home life for the child. Her present residence appears to provide a stable and satisfactory environment.
"5. The permanence of the husband’s home as a family unit appears to be slightly better than that of the wife. The wife’s employment is subject to transfer to another city, albeit she testified she can refuse to accept a transfer. Previously, she accepted a transfer.”
The court also took into consideration the reasonable preference of the child which is borne out
"The reasonable preference of the child was disclosed to the court in a private interview with the child on January 15, 1975 by stipulation of the attorneys. Without wishing to lessen either parent’s love for the child by divulging the child’s preference, the court is taking the child’s preference into consideration.”
Other factors considered by the court to be relevant appear in the court’s opinion as follows:
"As to other factors of consideration, this court is of the opinion that the mother of the child is an energetic and ambitious career woman. She testified as to her work hours. She allegedly is a supervisor of seventeen offices in Buffalo and surrounding area while her new husband travels about the state of New York in a supervisory capacity also for H & R Block. This court is of the opinion that the father of the child is perhaps less ambitious than the mother, but is more of a homebody.
"In summary, a totalling of the evaluations of the factors set forth in the Child Custody Act is convincing that the best interests of the child, Tiffany, would be served by awarding her custody to her father, with the right of reasonable visitation accorded to the mother.”
Having reviewed the transcript testimony taken in these proceedings and comparing same to the trial court’s findings we are unable to say that the trial judge made findings of fact against the great weight of evidence, committed a palpable abuse of discretion or clearly legally erred on a major issue. Accordingly, the judgment of the trial court is affirmed. Costs to appellee.
Concurring Opinion
(concurring). While I concur in Judge D. E. Holbrook, Jr’s, opinion, I wish to add a word in response to the dissent.
"A judge agonizes more about reaching the right result in a contested custody issue than about any other type of decision he renders.”1
Plainly enough, all the potentialities envisaged by this realization are embodied in this case. Con-cededly, the questions presented on appeal by such cases are difficult. On the one hand, this Court should scrupulously avoid scuttling the clear statutory mandate contained in MCLA 722.28; MSA 25.312(8)
Experience amply attests that the trial judge’s interview with the child is, at best, a difficult method of garnering truthful information. A particular instance will illustrate my thought.
To begin with, let us suppose we have a child of
Faced with this situation, the task of the trial judge is twofold. He must first allay the justifiable fears of the child while, at the same time, he attempts to gain a true reflection of the child’s preference. The usual response of a trial judge to this situation is to inform the child that all that is said to him in chambers will be held strictly in confidence. The trial judge may well justify his course of action on two grounds: (1) as noted above, to gain both the child’s confidence and a truthful expression of his preference, and (2) not out of solicitude for the jilted parent’s ego but, rather, to protect the fragile emotional psyche of a six-year-old child who, after disclosure, might have difficulty facing the rejected parent and still, lest we forget, will quite possibly be living with this parent or at some juncture might return to the custody of that parent.
This illustration is offered not because it suggests the appropriate response by this Court in all instances but, instead, to show that the importance and extreme delicacy of this type of situation is, generally, best left to the discretion of the trial judge who is dealing directly with the parties and the child. Were the rule otherwise, I think it clear from the illustration above that a trial judge might well attempt to avoid the conversation with the child.
Furthermore, I fail to perceive any reason for disclosure where it would not cause reversal of the trial judge’s decision. The case was so close that even were the child’s preference the mother, I would not conclude that the trial judge’s decision was against the great weight of the evidence.
Lastly, I wish to reflect on several of the comments made in the dissent on the evidence. I must, again, emphasize that the previously cited statute makes it clear that it is not our function to cast a roving judicial eye to discover evidence to support our particular position. We must deal with the record as presented, not with the record as we would like it to read. I am of the view that the comments made by the trial judge were justified and supported by ample evidence on the record. Accordingly, I concur in Judge D. E. Holbrook Jr.’s opinion.
Fritts vKrugh, 354 Mich 97, 101; 92 NW2d 604 (1958).
MCLA 722.28; MSA 25.312(8) reads:
"Sec. 8. 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.”
Dissenting Opinion
(dissenting). Once again this Court must venture into the maelstrom of a hotly
In an effort to determine the child’s "best interests”, MCLA 722.23; MSA 25.312(3), the lower court held an evidentiary hearing attended by plaintiff, defendant, and their respective witnesses and attorneys. Although the statute would permit it, MCLA 722.27(e), MSA 25.312(7)(e), the judge appointed neither guardian ad litem nor counsel to represent the child. Instead, the judge chose an in camera chat with Tiffany to elicit her "reasonable preference”. MCLA 722.23(i); MSA 25.312(3)(i).
Out of solicitude for the feelings of the rejected parent, the court declined to reveal Tiffany’s choice. However, the judge indicated in his written opinion that the child’s wishes were being taken into account. Ultimately, the court awarded custody to defendant.
While I appreciate the court’s concern that revelation of the child’s preference might endanger the relationship between Tiffany and the parent who was not chosen, I believe the failure to provide this Court with a substantive account of the in camera interview effectively frustrates meaningful appellate review, and hence constitutes "clear error on a major legal issue”. MCLA 722.28; MSA 25.312(8). Where, as here, "[t]he question of proper custody is close, and an expression of preference by an intelligent, unbiased child might be the determining factor in deciding what the 'best interests’ of the child are”, In re Custody of James B, 66 Mich App 133, 134; 238 NW2d 550 (1975), the trial court, once it chooses to determine the child’s preference, is obliged to relay the same to this Court. See Bowler v Bowler, 351 Mich 398,
Although Bowler and Oakes, supra, employ language suggesting the need for objection or motion to preserve an appellate record, it is unwise to adopt a no-objection, no-error rule given our paramount concern for Tiffany’s best interests, the absence of counsel on her behalf, and the mandate of GCR 1963, 517.1, which requires a trial court in nonjury cases "to specify with some precision the subsidiary facts on which the ultimate conclusion of fact rests”. Jamens v Avon Township, 71 Mich App 70; 246 NW2d 410 (1976), Ray v Mason County Drain Commissioner, 393 Mich 294, 301-302; 224 NW2d 883 (1975), and Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). In addition, since error may possibly arise from an in camera interview with a child, see, eg., Burghdoff v Burghdoff, 66 Mich App 608, 613-614; 239 NW2d 679 (1976), it is incumbent on the lower court to preserve an adequate record for appellate examination. In light of this Court’s obligation to review child custody cases de novo, Outcalt v Outcalt, 40 Mich App 392, 394; 198 NW2d 779 (1972), Bahr v Bahr, 60 Mich App 354, 360; 230 NW2d 430 (1975), I would reverse and remand this cause to the trial court to outline the substantive content of his interview with Tiffany.
If, on remand, the court is unable to state with
Another disturbing feature of this case must be addressed. That is, whether, as plaintiff contends, the lower court committed clear legal error or palpably abused its discretion in awarding custody to defendant for the sole reason that plaintiff is a successful career woman.
The record demonstrates that Esther Gulyas is employed as a regional manager of 17 offices of H & R Block, a tax preparation firm. She began working for the company in the Detroit metropolitan area but was later transferred to the Buffalo, New York, region. She testified at the hearing that she works 40 to 50 hours a week during tax season and 10 to 30 hours a week the rest of the year. She also indicated that she would refuse reassignment to another city and would quit her job, if necessary, to spend more time with Tiffany.
A careful reading of the lower court’s opinion
With regard to the competing parties’ ability and disposition to give the child love, affection and guidance, MCLA 722.23(b); MSA 25.312(3)(b), the trial judge noted that plaintiffs "career and need for obtaining a better livelihood has diminished her manifested ability to care for the child other than in Day Care homes”. However, the judge did not remark upon defendant’s inability personally to care for the child during his working hours. In addition, the court doubted plaintiffs statement that she would resign if need be to care for Tiffany. Apparently, the court would require that plaintiff cease working in order to show her sincerity; but the same is not expected of Kenneth Gulyas. Moreover, if plaintiff were to give up her career, she would confront a classic "Catch-22”, for she would thereby lessen her "capacity to provide the child with food, clothing, medical care and other material needs”. MCLA 722.23(c); MSA 25.312(3)(c).
The subject of plaintiffs career was again raised by the court in considering "the permanence, as a family unit”, of the parties’ respective homes, MCLA 722.23(e); MSA 25.312(3)(e), and once again the court doubted plaintiffs willingness to refuse a job transfer. Curiously, though, the court did not refer to testimony at the hearing which indicated that defendant’s father, who lives in and owns the
The next factor the court considered, the moral fitness of the competing parties, MCLA 722.23(f); MSA 25.312(3)(f), was "evaluated as being about equal, with the husband more inclined towards the old fashioned virtues”. (Emphasis added.) This rather cryptic comment is perhaps better understood by reference to the court’s evaluation of MCLA 722.230); MSA 25.312(3)0), the catch-all factor:
"As to other factors of consideration, this court is of the opinion that the mother of the child is an energetic and ambitious career woman * * * and that the father of the child is perhaps less ambitious than the mother, but is more of a homebody.” {Emphasis added.)
Apparently, the trial judge equates job status and the desire to advance in one’s chosen field with morality. While the statute does not define "moral fitness”, I do not believe that phrase should be used as a means of imposing on supplicants before the court one’s personal, philosophical beliefs regarding the work ethic.
Perhaps, however, the judge meant to imply by his use of the words "old fashioned virtues” and "homebody” merely that defendant is better able
While in the context of this case the lower court’s undue emphasis on plaintiffs career and its apparent obliviousness to defendant’s personal inability to care for Tiffany during working hours may not amount to an abuse of discretion under Spalding v Spalding, 355 Mich 382; 94 NW2d 810 (1959), it should be noted that the best interests of the child, as statutorily defined, should not be used as a screen with which to hide outmoded notions of a woman’s role being near hearth and home.
A close scrutiny of the record shows that the factor of the parties’ respective work obligations, like many of the express statutory criteria the court weighed, is not particularly significant. This tends to emphasize not only the importance of Tiffany’s reasonable preference, but also the duty of the court to utilize the other statutory provisions at its disposal:
"There is, of course, the danger of self-serving testimony on behalf of the various contestants for the life of the child. Therefore, we would encourage independent investigation, including independent psychiatric evalúa*152 tion of the parties and the child and such other inquiries as are consistent with due process.” In Re Maria S Weldon, 397 Mich 225, 277; 244 NW2d 827 (1976). (Coleman, J., concurring, but dissenting on other grounds.)
Since in the present case many of the statutory factors, which define the child’s best interests, were not especially compelling, sound practice dictates resort to other avenues permitted by the statute. I urge the court on remand to heed the counsel of Justice Coleman, and I "request that the trial judge order an up-to-date investigation with a new custodial hearing at which both parties [and preferably counsel for Tiffany] may submit such evidence as they deem calculated to enlighten the trial judge in his task of determining what situation will be in the best interests of the child”. Roudabush v Roudabush, 62 Mich App 391, 395; 233 NW2d 596 (1975).
Although a remand will assuredly delay final resolution of this case, a reviewing court has an obligation to examine all of the record, and a trial court has the corresponding duty to see that the record it supplies is as complete as possible. Cf., Kailimai v Firestone Tire & Rubber Co, 398 Mich 230; 247 NW2d 295 (1976). Unless and until the Supreme Court comes to grips with the problem (possibly by adopting the proposed court rule espoused by Justice O’Hara in his dissent in Roudabush, supra
"With all the fervor I can command I suggest that the Supreme Court forthwith under its rule-making power put an end to this cruel sham of entitling a change in child custody as an adversary proceeding between divorced parents as here. I would like to see the Supreme Court require that such cases be entitled 'In the Matter of the Custody of_, a minor’. I would hope the trial bench would be directed to discard all this nonsense of rules of evidence related to ordinary adversary civil cases. Is the question still who is going to 'win’, appellant or appellee, with the child a pawn of their animosities?
Reference
- Cited By
- 7 cases
- Status
- Published