Troxler v. Troxler

J. H. Gillis, P.J.

On March 30, 1977, Judge William F. Hood granted plaintiff a judgment of divorce from defendant. That judgment provided in part that plaintiff have the care, custody, control and supervision of the parties’ three children, Todd, Scott and Brad. On August 11, 1977, defendant filed a petition to change custody of the children from plaintiff to himself. After a hearing on the petition on September 9, 1977, Judge Hood filed an order modifying the judgment of divorce thereby giving custody of the three children to defendant.

Plaintiff later filed a motion to set aside that order modifying the judgment of divorce and plaintiffs motion was granted since the court lacked jurisdiction for certain technical reasons. Defendant then filed a second petition for change of custody and a hearing was held on that petition on *523May 9, 1978. Again, Judge Hood acted favorably to defendant and ordered a change of custody from plaintiff to defendant. It is from this final order that plaintiff appeals as of right.

The guidelines for appellate review of custody decisions is set forth in the Child Custody Act of 1970, MCL 722.28; MSA 25.312(8):

"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.”

See also Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

When a custody dispute is between parents, the best interests of the child shall control. MCL 722.25; MSA 25.312(5). The act also provides that the court shall not change the established custody of the child unless clear and convincing evidence is presented that the change is in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c), Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974).

The modification of the divorce judgment changed the custody of the children from the mother to the father. As is required by the act, the trial court made specific findings on the factors which make up the "best interests of the child”. MCL 722.23; MSA 25.312(3). Our review of the record convinces us that the trial court did not make erroneous findings nor commit a palpable abuse of discretion which would justify reversal.

The trial court found specifically in favor of the father on three of the factors; stable environment, *524permanence, as a family unit, of the home, and moral fitness. As to the remaining factors the trial court found the parties were equal.

In addition to that evidence cited by the trial court, we note other testimony which supports the conclusion that it is clearly in the best interests of the children to award custody to defendant. The children were doing well in school and were receiving proper care in their father’s home according to an investigator from the friend of the court. The friend of the court also recommended that the children stay with their father.

There was testimony from plaintiff that her new husband (Healy) had struck her and "pretty near knocked her teeth out”. Testimony also disclosed that this was Healy’s third marriage.

Defendant sent plaintiff a blank check while she was cohabiting with Healy, prior to their marriage, so she could move herself and the children into a place of their own. This testimony was supplied by the plaintiff.

We believe this evidence supports the trial court’s findings in favor of the defendant. In addition, the trial court found in favor of neither party on the "preference of the child” factor. There was testimony from both plaintiff and defendant that the children preferred to live with their father. We would be inclined to find in favor of the father as to this factor in addition to those so found by the trial court.

We are convinced that it is in the best interests of the children to award custody to their father. Therefore, the order of the lower court granting custody to defendant is affirmed.

Affirmed. Costs to appellee.

D. E. Holbrook, J., concurred.