Gulyas v. Gulyas

254 N.W.2d 818, 75 Mich. App. 138, 1977 Mich. App. LEXIS 1085

• Court: Michigan Court of Appeals
• Decided: April 19, 1977
• Docket: Docket 28160
• Status: Published

Opinions

D. E. Holbrook, Jr., P. J.

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 the court shall consider together with a final factor which reads: "(j) any other factor considered by the court to be relative to a particular child custody dispute.”

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 by the following statement in the court’s written opinion:

"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.