Wilcox v. Wilcox

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*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 *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 *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 *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. Joint custody under the California code is defined as "an order awarding custody of the minor child or children to both parents and providing that physicál custody shall be shared by the parents in such a way as to assure the child or children frequent and continuing contact with both parents; provided, however, that such order may award joint legal custody without awarding joint physical custody”.

The Michigan Child Custody Act of 19703 nei*84ther prevents nor requires joint custody. In Schilleman v Schilleman, 61 Mich App 446; 232 NW2d 737 (1975), lv den 395 Mich 769 (1975), the Court indicated that, while it did not generally favor orders which alternate the custody of the children between parents for equal periods of time, the trial court’s decision in that case was affirmed because the Court could not say that the trial court committed a palpable abuse of discretion in awarding such alternate custody.

Viewed from the standpoint of the best interests of the child, joint custody, when workable following a divorce, affords access and continuity to a parent and active participation in the life of a child following a divorce. We are in accord with our colleague that, where divorcing parents can agree that joint custody is the arrangement that serves the best interests of the child, trial courts should give approval, except, perhaps, in the unusual case where a trial court finds evidence that such an arrangement is contrary to the best interests of the child. However, we are not in total agreement that, where a parent in good faith does not believe that joint custody will serve the best interests of the child, joint custody should not be awarded over such an objection. First, it is necessary to define the term joint, alternative, or shared custody, since the understanding of its meaning may differ. There is a difference between joint legal custody, which is concerned with making decisions which significantly affect the life of a child, and joint physical custody, which is concerned with the child living with the parent. There are multiple situations where legal custody awarded to a sole parent deprives the other parent of sharing in making decisions concerned with the child’s education, dental, other health care, as well *85as other decisions in the life of the child. Whether the plaintiff agrees to joint custody or not, the facts support an award of joint legal custody of the children in this case.

Under MCL 722.25; MSA 25.312(5), a dispute between parents over custody of a minor child is to be decided on the basis of the "best interests of the child”. No doubt § 3(j),4 which provides for consideration by the trial court of "any other factor considered by the court to be relevant to a particular child custody dispute”, was added to encompass significant and unique fact situations which otherwise might be overlooked or not considered. Certainly, the "best interests of the child” cannot be viewed in a vacuum but, rather, must be viewed from the standpoint of how things actually are in a specific case.

The granting of joint custody is not agreed to by both parents in this case. We have a situation where the plaintiff, embittered by a number of events, several of which are mentioned here, is opposed to the award of joint custody. It does not matter whether there is acceptance or rejection of the life style of the defendant, who took on another mate. Defendant has his side of the story. However, when viewed from the plaintiff’s position, the strong feelings she has are accurately illustrated by her indication that she will give up custody altogether rather than accept joint custody.

Further, plaintiff’s viewpoint differs from the defendant’s in regard to the property division. The plaintiff is not willing to accept the property division, particularly as it concerns the Woodruff Street apartment building, which has an equity of $70,000. Plaintiff contends that: (1) the initial *86investment came from her side of the family; (2) during part of the marriage the defendant was a student; and, (3) defendant’s yearly earnings were meager except for the last year or two of the marriage. This factor exacerbates the tension between the parties relative to the child custody issue.

Even under a more favorable setting, alternate physical custody, although workable, may have its problems. Here, the custody order provides the parties shall exchange physical custody of the minor children on Friday of each week or make whatever other arrangement is mutually agreeable to the parties. With what is mutually agreeable we have no difference on the facts before us. However, the transfer of physical custody from one parent to the other on alternate weeks can only be compared to the travel of a tennis ball back and forth from one side of the tennis court to the other. Such movement of the children is not in their best interests.

It is our finding that the trial court was correct in ordering joint legal custody in both parents. Nonetheless, we find that the trial court erred in awarding alternate or joint physical custody of the minor children in this case. The trial court’s order to exchange physical custody of the minor children on Friday of each week is set aside and physical custody of both minor children awarded to Plaintiff, Elizabeth Wilcox, subject to reasonable visitation rights in defendant, Kent Wilcox.

The authority of the trial court to divide marital property between the parties to a divorce arises under MCL 552.19; MSA 25.99, and the court’s authority to order alimony is statutorily provided in MCL 552.23; MSA 25.103.

It is well settled that a division of marital *87property or an award of alimony is a matter within the discretion of a trial court. Johnson v Johnson, 346 Mich 418; 78 NW2d 216 (1956), Pinney v Pinney, 47 Mich App 290; 209 NW2d 467 (1973), Van Ommen v Van Ommen, 25 Mich App 652; 181 NW2d 634 (1970). In Johnson v Johnson, supra, 431, the Supreme Court held:

"The division of property in a divorce action is not governed by any rigid rules or mathematical formula. Each case depends on the particular facts involved. * * *
"The portion of property awarded to each party depends upon all the equitable factors involved, including the following: source of property, contribution towards its acquisition, the years of married life, the needs of the parties, their earning ability and also the cause for divorce.”

Further, this Court will not reverse an award of property or alimony unless it is convinced that, had it occupied the trial court’s position, it would have reached a different result. Paul v Paul, 362 Mich 43; 106 NW2d 384 (1960), Simmons v Simmons, 58 Mich App 480; 228 NW2d 432 (1975), Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974).

And although a property award need not meet any specific numerical standard, it "must be fair in light of the overall financial circumstances of the parties”. McDermott v McDermott, 84 Mich App 39, 41; 269 NW2d 299 (1978).

While we view the trial court’s decision to award alimony in gross to the plaintiff and its division of marital property as a very close question in this case, the trial court did not abuse its discretion. A review of the record discloses no reversible error.

We affirm the property settlement and alimony *88in gross provisions, as well as the joint legal custody in both parents. However, we reverse the joint physical custody determination and award physical custody of both minor children to plaintiff, Elizabeth Wilcox, subject to reasonable visitation rights in the defendant, Kent Wilcox. Therefore, this case is remanded to the trial court for a determination of child support and reasonable visitation rights. No costs are awarded.

Danhof, C.J., concurred.

Foster & Freed, Joint Custody: Legislative Reform, 16 Trial 22 (June, 1980).

See Cal Civ Code §§ 4600, 4600.5 (West).

MCL 722.21 et seq.; MSA 25.312(1) et seq.

MCL 722.23(j); MSA 25.312(3Xj).