Nichols v. Nichols

Per Curiam.

Defendant appeals from a judgment of divorce entered on October 15, 1979, following trial on July 27, 1979. The parties were married on August 22, 1970. Two children were born: Brett, born June 30, 1972, and Renee, born October 20, 1974. The family resided in St. Clair County until the fall of 1976, when they moved to Cheboygan, Michigan, where defendant began the practice of architecture. In the summer of 1978, marital problems developed, and the couple separated. Plaintiff took the children and returned to St. Clair County. On June 30, 1978, she filed a complaint for divorce in St. Clair County Circuit Court. Defendant also filed one in Cheboygan County Circuit Court, but the jurisdictional problem was eventually resolved in favor of St. Clair County.

On December 28, 1978, the friend of the court’s *587report was filed, recommending custody in plaintiff and child support of $90 per week. On January 8, 1979, defendant filed objections to the report. Defendant also filed a countercomplaint for divorce and a request for custody of the two children.

After trial, the court, in a written opinion and judgment, granted the divorce and gave custody of the two children to plaintiff. Defendant appeals from the judgment.

Defendant claims that the judge’s opinion was against the great weight of the evidence and that the trial court erroneously refused to appoint a behavioral scientist to assist in making the child custody determination and improperly considered a report prepared by the friend of the court.

The trial judge, in a carefully written opinion, reviewed the entire proceedings, including his interviews with both children, and made findings of fact in accordance with the Child Custody Act. Defendant had sought joint custody, but the court determined that it "would not be in the best interest of the children”. It should be noted that the award of custody in the case at bar antedated the recent joint custody amendment to the Child Custody Act of 1970, MCL 722.26a; MSA 25.312(6a). The court granted defendant visitation rights for four weeks during the summer vacation, monthly weekend visits from Friday to Sunday, alternate Thanksgiving weekends (four days), and equal time during spring and Christmas breaks.

This Court reviews divorce matters de novo upon the record; however, where, as here, the trial judge saw the witnesses and heard the testimony, we give great weight to his findings of fact. Bowler v Bowler, 351 Mich 398, 403-404; 88 NW2d 505 (1958), McCarthy v McCarthy, 74 Mich App 105, 108-109; 253 NW2d 672 (1977). Moreover, a cus*588tody award must 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”. MCL 722.28; MSA 25.312(8).

The trial court’s findings of fact and conclusions of law are supported by the evidence in the case. Two weeks before the trial date defendant filed a motion requesting that a behavioral scientist be appointed to submit a report to the court to assist in determining the best interests of the children. The motion was heard on the day set for trial, and the court in its discretion denied the motion. Defendant concedes that the appointment of such a person is within the discretion of the court, and this Court finds no error in the denial of the motion.

This Court is further of the opinion that the consideration by the trial judge of a supplemental report by the friend of the court was not error in this case, even though the parties did not agree to its admission into evidence. "Such a report is authorized by statute for the consideration of the circuit judge.” Krachun v Krachun, 355 Mich 167, 169; 93 NW2d 885 (1959), MCL 552.253; MSA 25.173. "The trial judge may consider the report in reaching his decision, but the report is inadmissible as evidence unless all of the parties agree otherwise.” McCarthy, supra, 109. The trial judge remains "in duty bound to exercise his own judgment on properly received evidence”. Brugel v Hildebrant, 332 Mich 475, 484; 52 NW2d 190 (1952). We hold that the trial judge in the case at bar fulfilled his duty.

Defendant’s remaining allegations of error are unpersuasive.

Affirmed. Costs to plaintiff.