Moser v. Moser

457 N.W.2d 70, 184 Mich. App. 111
CourtMichigan Court of Appeals
DecidedJune 4, 1990
DocketDocket 118971
StatusPublished
Cited by5 cases

This text of 457 N.W.2d 70 (Moser v. Moser) 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
Moser v. Moser, 457 N.W.2d 70, 184 Mich. App. 111 (Mich. Ct. App. 1990).

Opinions

Cynar, J.

Defendant, Diane L. Moser, appeals as of right from the judgment of divorce entered on July 5, 1989, after a bench trial before the Ottawa Circuit Court. On August 4, 1989, this Court granted defendant’s motion for immediate consideration, but denied her motion for stay of proceedings. We affirm.

Defendant argues first that the trial court erred in awarding permanent custody of the minor children from the marriage to plaintiff, Gale E. Moser, Jr. We disagree.

Because a divorce judgment is equitable in nature, appellate review is de novo. DeVries v DeVries, 163 Mich App 266, 269; 413 NW2d 764 (1987). However, our review of child custody determinations is limited by MCL 722.28; MSA 25.312(8), which provides:

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.

[114]*114Nevertheless, the trial court’s ability to modify a previous custody order is itself limited by MCL 722.27(l)(c); MSA 25.312(7)(l)(c), which provides:

(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may:
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered. [Emphasis added.]

See also Curless v Curless, 137 Mich App 673; 357 NW2d 921 (1984) (affirming trial court’s award of permanent custody in father where mother had temporary custody prior to final judgment of divorce).

In this case, pursuant to an interim order, defendant had temporary custody of the children for about fifteen months prior to issuance of the trial court’s written opinion on May 19, 1989, following the divorce trial which concluded on May 3, 1989. In its opinion, the trial court made specific findings [115]*115of fact, which we find are supported in the record, regarding the absence of an established custodial environment with defendant, stating in pertinent part:

The capacity and disposition of competing parties to provide the children with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
This factor favors the father. Plaintiff is gainfully employed and defendant is not but with plaintiff paying adequate support each would have the capacity to provide the physical necessities for the children.
Defendant does not have the disposition to do so as does plaintiff. An example when each of the children were in need of attention plaintiff had to call his sister to care for Ryan, ill with the chicken pox, and to take Sarah who was injured for medical treatment at a time when defendant was not employed but engaged in extracurricular activities which she chose over providing the care for her children.
The home, school and community record of the children is a factor which favors the father, especially in the case of Sarah the older child. Sarah, the thirteen year old daughter, is doing very poorly in school while under defendant’s primary care. During the first semester of her seventh grade, when her father lived at home, she missed three days of school. The second semester, after the parties separated and she lived with her mother, Sarah missed sixteen days of school. During the first six weeks of the eighth grade while living with her mother, she already missed seven and one half days of school. Her mother claims Sarah was excessively ill but there is no identification of the illnesses. The pattern seems more consistent with plaintiff’s testimony that defendant stayed in bed until approximately fifteen [116]*116minutes before the children are scheduled to go to school and his testimony that she doesn’t require the children to do anything that they don’t want to do. Sarah definitely needs a parent who is more organized and structured and insistent on better performance from her.

The trial court concluded:

The evidence indicates that Mrs. Moser is basically disfunctional [sic] as a parent and homemaker. She chooses activities which occupy her time, take her away from the home and are primarily self gratifying without benefit for her children or family. When a choice is to be made between these activities and her children she chooses her activities. Although the father’s job will take him away from the home for a significant period of each working day, this Court believes he is more capable of providing a consistent, reliable structure upon the activities of the children with predictable outcomes for their behavior.

We do not find that the court’s findings of fact were against the great weight of the evidence, nor that the court committed a "palpable abuse of discretion or a clear legal error” in awarding permanent custody of the minor children to plaintiff. MCL 722.28; MSA 25.312(8).

Defendant argues next that the trial court erred in its division of the marital estate. The trial court split the total marital estate evenly between the parties, however defendant claims she should have been awarded more than a one-half share. Once again, we disagree.

Though our review of property settlements in divorce cases is de novo on the record, we will not substitute our judgment for that of the trial court unless we are convinced that an abuse of discretion has occurred or we are convinced we would [117]*117have reached a different result. Wilson v Wilson, 179 Mich App 519, 522-523; 446 NW2d 496 (1989). The trial court’s objective is to reach a fair and equitable property division in light of all the circumstances. In making the division, the trial court must consider: the duration of the marriage; the contributions of the parties to the joint estate; the parties’ station in life and earning abilities; fault or past misconduct; and other equitable circumstances. Id.

Our review of the trial court’s written opinion in this matter indicates that the trial court considered all of the above factors and more. Further, our review of the record indicates that there was ample support for the court’s findings with respect 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.

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Moser v. Moser
457 N.W.2d 70 (Michigan Court of Appeals, 1990)

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Bluebook (online)
457 N.W.2d 70, 184 Mich. App. 111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moser-v-moser-michctapp-1990.