Cooper v. Cooper

285 N.W.2d 819, 93 Mich. App. 220, 1979 Mich. App. LEXIS 2417
CourtMichigan Court of Appeals
DecidedOctober 16, 1979
DocketDocket 78-3682, 78-4790
StatusPublished
Cited by9 cases

This text of 285 N.W.2d 819 (Cooper v. Cooper) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Cooper, 285 N.W.2d 819, 93 Mich. App. 220, 1979 Mich. App. LEXIS 2417 (Mich. Ct. App. 1979).

Opinions

Per Curiam.

This case started out as a routine divorce matter. Plaintiff wife was granted a default divorce as well as custody of the minor child, Lawrence, hereinafter referred to as Larry. Defendant husband was ordered to pay support and was granted reasonable visitation. Soon thereafter, both litigants married different parties. Plaintiff married a career employee with the United States Government whose work was transferred to Virginia. At this time, plaintiff petitioned to change domicile to Virginia. In turn, defendant moved for modification of custody, alleging changed circumstances. The parties worked this out between themselves by allowing defendant greater visita[224]*224tion rights. Plaintiff and Larry then moved to Virginia without a court order allowing the move.

There followed a series of job-related moves by plaintiff, her new husband and Larry. The first such move took them from Virginia to Texas. As no one was apprised of plaintiff’s address, defendant was able to obtain an order to stay support payments in November, 1975. From Texas, the peripatetic trio moved to Idaho. After establishing residence there, plaintiff requested the Michigan Friend of the Court to forward the accrued support payments. These payments were halted by the November, 1975 order, however.

In October, 1977, an order was issued permitting plaintiff to change her domicile to Idaho, giving defendant Christmas and summer visitations, suspending support for refusal of visitation and providing for payment of support arrearages into escrow. In December, 1977, defendant moved to compel plaintiff to honor this order, contending that plaintiff refused to allow visitation until defendant paid Larry’s medical bills. An order to this effect was entered.

During Larry’s 1978 summer visit, defendant moved for a change of custody. At this juncture, for reasons not apparent from the court records, defendant was awarded temporary custody by an ex parte order. Thereafter, following a custody hearing, the plaintiff was permitted to retain custody and, accordingly, defendant was ordered to produce the child. While the Macomb County custody hearing was pending, however, defendant took Larry with him to Texas where he initiated custody proceedings. Later, he initiated custody proceedings in Idaho as well. We are not called upon to review the decisions of these out-state tribunals, however. Thus, we confine our consider[225]*225ation to the propriety of the Macomb County Circuit Court’s rulings. On September 8, 1978, in ruling on plaintiff’s show cause petition, the Ma-comb County Circuit Court ordered defendant to deliver the child to Idaho. On October 6, 1978, plaintiff moved for attorney fees, alleging that she had insufficient funds. This motion was granted and plaintiff was awarded $2,520 in attorney fees on October 26, 1978.

On December 8, 1978, plaintiff moved to modify the judgment of divorce, alleging that the defendant had attempted to contravene the court’s September 8, 1978, order and flee with the child. This modification motion requested an absolute denial of defendant’s visitation rights. The trial court granted plaintiff’s motion and revoked defendant’s visitation rights. From these adverse determinations, defendant appeals by leave granted.

The principal issues defendant raises in this appeal are whether the trial judge’s findings of fact comported with the factors comprising the "best interests of the child” as set forth in the Child Custody Act, MCL 722.23; MSA 25.312(3), and whether these findings of fact were contrary to the great weight of the evidence.

The guidelines for appellate review of custody decisions are set forth in the Child Custody Act, 1970 PA 91; MCL 722.21 et seq.; MSA 25.312(1) et seq. As indicated in MCL 722.28; MSA 25.312(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.”

See also Feldman v Feldman, 55 Mich App 147; [226]*226222 NW2d 2 (1974), Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

When a custody dispute is between parents, the best interests of the child shall control. MCL 722.25; MSA 25.312(4). The act also provides that the court shall not change the established custody of the child unless clear and convincing evidence is presented that the change is in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c), Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974).

After a review of the record, we find that the trial court, as required by the act, made specific findings on the factors which make up the best interests of the child, MCL 722.23; MSA 25.312(3). Moreover, this review convinces us that the trial court did not commit a palpable abuse of discretion which would justify reversal.

The defendant raises a myriad of collateral questions with respect to the trial court’s conduct during the custody hearing. He charges the court abused its discretion and engaged in judicial misconduct by erroneously reviewing letters and reports of prospective witnesses before the hearing, conferring with plaintiffs attorney before the hearing, and providing him with psychiatric reports concerning the child, conducting an in camera hearing with one of defendant’s witnesses after she had given her testimony, and considering plaintiffs affidavits which consisted of reports prepared by the child’s out-of-state teachers, neighbors and physicians.

We have reviewed the court’s actions and found no palpable abuse of discretion. First, the letters and reports allegedly improperly reviewed by the trial court were favorable to the defendant. Moreover, the court’s on-record statements emphasized [227]*227that it was impartial and that it was unaffected despite this allegedly improper review. Secondly, defendant has not made a showing that the court and plaintiff’s attorney conferred for the purpose of discussing the merits of the case before the hearing. An equally plausible inference, in the absence of such a showing, is that this conference consisted of nothing more than an innocent conversation concerning whether or not the trial would proceed as scheduled.

Thirdly, no inferences of prejudice can be drawn from the fact that the court met with one of defendant’s witnesses, the Friend of the Court representative, in chambers after she testified. If anything, this incident further demonstrates the court’s concern for the welfare of the child. Fourthly, the affidavits the defendant complains of were never formally received into evidence at the hearing, nor did the court make a reference to them in its findings of fact. Thus, it cannot be said that the trial court improperly relied upon these reports.

Next, defendant argues the trial court abused its discretion in refusing to compel plaintiff to submit to a psychiatric examination. We acknowledge it is within the court’s discretionary power to order such an examination. See Siwik v Siwik, 89 Mich App 603, 609; 280 NW2d 610 (1979). However, we find no abuse in the instant factual situation.

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Cooper v. Cooper
285 N.W.2d 819 (Michigan Court of Appeals, 1979)

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Bluebook (online)
285 N.W.2d 819, 93 Mich. App. 220, 1979 Mich. App. LEXIS 2417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-cooper-michctapp-1979.