Wilcox v. Wilcox

298 N.W.2d 667, 100 Mich. App. 75, 1980 Mich. App. LEXIS 2924
CourtMichigan Court of Appeals
DecidedSeptember 15, 1980
DocketDocket 43938, 47069
StatusPublished
Cited by7 cases

This text of 298 N.W.2d 667 (Wilcox v. Wilcox) 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
Wilcox v. Wilcox, 298 N.W.2d 667, 100 Mich. App. 75, 1980 Mich. App. LEXIS 2924 (Mich. Ct. App. 1980).

Opinions

Cynar, J.

Plaintiff, Elizabeth Wilcox, appeals from the child custody provision as well as the property settlement and alimony in gross award in a judgment of divorce granted February 13, 1979. The court ordered joint custody of the two children to be held by the plaintiff and defendant, Kent Wilcox, with the parties to exchange physical custody of both children weekly unless the parties agreed otherwise.

The parties were married on or about October 5, 1968, in East Lansing, Michigan, and as a result of this marriage, one child, Frank Sterling Wilcox, was born on December 17, 1969. The child of the plaintiff by her former marriage, Marni Darr Holmes Wilcox, born February 8, 1966, was adopted by the defendant.

The parties were separated for several months prior to the filing of the complaint for divorce in March, 1978. During the separation, the plaintiff had custody of the minor children.

As found by the circuit court, one of the main precipitating factors in the dissolution of the mar[80]*80riage was the defendant’s decision to find a new partner.

In an ex parte order entered March 28, 1978, custody was awarded to the plaintiff. This order was modified to "joint custody” on May 24, 1978. The nature of this "joint custody” was to have the two minor children stay one week with the plaintiff and then stay one week with the defendant.

At trial, testimony was first taken from Dr. Garry E. Stollak, a certified consulting psychologist and professor of psychology at Michigan State University. Dr. Stollak worked with the parties prior to trial in an effort to work out a suitable plan for custody of the children, both before and during the pendency of the divorce.

Dr. Stollak testified that beginning in September 1978 Marni became dissatisfied with the shared custody arrangement, preferring to reside only with the plaintiff. He also observed that Frank, the younger child, had a healthy relationship with both parties and that he did not want to be forced to choose with which parent he would, live. In later testimony, Dr. Stollak stated that the plaintiff’s negative attitude to an alternate custodial arrangement had affected the children’s views of it. Finally, he testified that the children would not have difficulty meeting the standards of conduct for each separate home, that an alternate custody arrangement could be beneficial to the children and that the presence of a female friend in the defendant’s home would not adversely affect the children’s development.

Testimony was also heard at trial from Lynn Keller, a mental health therapist with the Capital Area Counseling Center. Ms. Keller, who previously interviewed and counseled Marni, expressed the opinion that Marni preferred to live with her [81]*81mother and that the maternal relationship was more important to Marni than that with her stepfather. She also said the children preferred to live together, but that no negative effects would arise if they lived apart. Ms. Keller testified as to counseling sessions held with the children and the defendant, concluding that the defendant loved his children very much and that he had no desire to force an undesired custody arrangement on Marni. In response to questions posed by the trial court, Ms. Keller stated that an alternate custodial arrangement involving periods of time longer than one week is generally preferable. However, Ms. Keller stated further that alternate custody, even with longer periods of time, would not work in this case.

Plaintiff testified that she was a better parent than defendant. She described the defendant as an "extreme authoritarian” to the point that Marni would urinate involuntarily if he yelled at her. The plaintiff also stated that when Frank returns to her custody under the week-to-week arrangement, he is greatly withdrawn and hangs onto her for three or four days. Finally, in the plaintiffs opinion, the divorce was brought about by an adulterous relationship of the defendant with another woman.

Defendant admitted at trial to Marni’s dislike of alternate custody. He expressed the further opinion, however, that Marni’s opinion was strongly affected by the negative suggestions of the plaintiff and that under the guidance of Lynn Keller his relationship with Marni had improved dramatically. Defendant also denied that an adulterous relationship caused the parties’ marital breakup. Finally, he suggested that alternate custody would be in the best interests of the children and that [82]*82such an arrangement would permit the children to maintain close personal bonds with both parents.

The court in an oral opinion applied the factors set forth in § 3 of the Child Custody Act, MCL 722.23; MSA 25.312(3), discussing each factor enumerated therein. With respect to subsection (a), which is concerned with love, affection, and other emotional ties, and under subsection (b), which is concerned with capacity and disposition of competing parties to give the child love, etc., the court found the parties equal. With respect to subsection (c), which looks at the capacity and disposition of parties to provide the child with food, clothing, etc., the court found that there was no problem with either parent. As to factors listed in subsection (d), relating to length of time the child lived in a satisfactory environment, the court indicated that the parties had not been separated very long and that joint custody had been carried out to some extent. With respect to subsection (e), the court found that permanence as a family unit did not appear to be totally applicable in this case; while, with respect to subsection (f), the court noted that, while it may have been contended that Mr. Wilcox was less morally fit, the situation will resolve itself. As to the factor recited in subsection (g), there was no problem with the mental or physical health of either parent. With respect to subsection (h), there was no difficulty around the neighborhood, and the children were doing well in school. With respect to subsection (i), Marni preferred to be in the custody of her mother but Frank had not expressed a preference one way or another.

In the disposition of property, the trial court awarded to the plaintiff full title to the marital home and a jointly owned seven-unit apartment [83]*83building. The equity in the marital home was divided equally between the parties but was not made payable to the defendant until the plaintiff moved, sold or assigned her interest in the home, remarried, died, or the youngest child of the marriage reached 18 years of age. The plaintiff also received full title to a second apartment building owned by the parties which had an equity of $3,000. The trial court then added the equity of the third property to that of the seven-unit building, a total of $73,000 in equity. After deducting $15,000 from this total based upon the plaintiff’s original investment in the seven-unit building, the trial court divided the remaining equity value into equal $29,000 shares. Out of the defendant’s share $7,500 was ordered to be paid to the plaintiff as alimony in gross.

Approximately one half of the states have enacted legislation concerned with the issue of joint custody. Some 23 states have equalized parental rights in child custody through legislation.1 Under California’s 1980 custody statutes,2 joint custody is the court’s first and preferred alternative, and the court is required to enumerate its reasons if it refuses to award joint custody.

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Related

in Re Ajr Minor
Michigan Supreme Court, 2014
In re AJR
852 N.W.2d 760 (Michigan Supreme Court, 2014)
Wilcox v. Wilcox
310 N.W.2d 434 (Michigan Court of Appeals, 1981)
McLain v. McLain
310 N.W.2d 316 (Michigan Court of Appeals, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
298 N.W.2d 667, 100 Mich. App. 75, 1980 Mich. App. LEXIS 2924, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-wilcox-michctapp-1980.