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Docket Number

Docket No. 73337.

Attorney(S)

Legal Aid of Western Michigan (by William D. Evenson), for defendant.

Judges

PER CURIAM.
M.J. KELLY, P.J. (dissenting).

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Smart Summary

Case Summary: Lewis v. Lewis, Docket No. 73337 (Michigan Court of Appeals, Aug. 21, 1984)

Factual and Procedural Background

Plaintiff (father) Raymond Percey Lewis and defendant-appellant (mother) Mary Jane Lewis were married September 14, 1973, and divorced on August 15, 1983. The parties have four children: Christine (born October 8, 1973), Angie (born July 24, 1976), Daniel (born August 4, 1978), and Mark (born November 26, 1980).

After a custody hearing the trial court took the matter under advisement and filed a written opinion on July 21, 1983. The divorce judgment dated August 15, 1983, awarded custody of Angie and Daniel to the plaintiff-father and custody of Christine and Mark to the defendant-mother. The court ordered plaintiff-father to pay child support to defendant-mother for the two children awarded to her in the amount of $25 per week per child until each child reached age 18.

Defendant-mother appealed the custody provisions of the divorce judgment as of right. Plaintiff-father did not file a brief on appeal. The Court of Appeals issued a per curiam opinion affirming the custody determinations but identified an error in the trial court's conditioning of part of the custody award.

Legal Issues Presented

What standard of proof applies when no established custodial environment exists for the child(ren) — the preponderance of the evidence standard or the clear and convincing evidence standard?
Whether the trial court erred by conditioning its award of custody of Angie and Daniel to the father on the father's marriage within 30 days of the divorce judgment, and whether that condition is contrary to public policy.
Whether, given the record and any confusion as to the applicable standard(s), the appellate court should alter the trial court's custody determinations.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Baker v. Baker, 411 Mich. 567, 309 N.W.2d 532 (1981)	Establishes that when a custodial environment has not been established, custody determinations are to be made based on the best interests of the child by a preponderance of the evidence; clear and convincing standard applies only when changing an established custodial environment.	The majority and the dissent reference Baker to explain the correct standard (preponderance) when no custodial environment exists. The dissent relies on Baker to argue the trial court erroneously applied the clear and convincing standard to the nonestablished custodial situation and would remand for reconsideration under the proper standard. The majority cites Baker (through the court's notes) in explaining applicable standards and concludes the trial court's findings were supported by a preponderance of the evidence despite confusing language.

Court's Reasoning and Analysis

Standard of review: The Court of Appeals reviewed custody issues de novo on the record but stated it gives considerable deference to the trial judge's superior vantage point on credibility and the statutory custody factors (citing the Child Custody Act and MCL 722.23).

Trial-court findings and applicable standards: The trial court concluded that a custodial environment had not been established for Angie and Daniel. Under that factual premise, the proper measure of proof for awarding custody is by a preponderance of the evidence. The written opinion of the trial court indicated that the trial judge intended to apply that preponderance standard. However, the trial court's opinion also used the phrase "clear and convincing case" in describing the mother's showing and discussed both standards in relation to the father's burden to change custody.

Appellate analysis of the record and evidence: The majority acknowledged the trial court's confusing references to different standards of proof but examined the trial record and the opinion's findings under each of the 11 factors required by the Child Custody Act of 1970. The Court of Appeals determined the trial judge had carefully weighed those statutory factors and that the factual findings were based on the evidence presented. The appellate court concluded the testimony and findings were sufficient to support the custody award by a preponderance of the evidence despite the trial court's inconsistent language about standards.

Error identified: The Court of Appeals found error in the trial court's conditioning of the award of custody of Angie and Daniel on the father's marriage within 30 days of the divorce judgment. The majority characterized that conditional provision as against public policy.

Disposition rationale: Although the majority found the marriage-conditioning provision to be erroneous and contrary to public policy, it declined to allow that error to serve as a basis for altering custody determinations that otherwise conformed substantially to law and the children's best interests. Therefore, the court affirmed the custody judgments.

Separate/dissenting view: Judge M.J. Kelly dissented. The dissent emphasized that the trial court applied an incorrect, more burdensome "clear and convincing" standard when awarding custody to the father in a situation where no custodial environment had been established. Relying on Baker v. Baker, the dissent concluded the trial court erred as a matter of law and would remand for reconsideration of the June 24, 1983 custody hearing evidence under the correct preponderance-of-the-evidence standard rather than simply affirming.

Holding and Implications

Affirmed.

Holding (core ruling): The Court of Appeals affirmed the trial court's custody allocations (custody of Angie and Daniel to the father; custody of Christine and Mark to the mother) and the related child support order for the children awarded to the mother.

Implications for the parties: The custody determinations and support order remain in effect as entered by the trial court. The appellate majority identified and criticized a specific trial-court condition—tying the father's custody award for Angie and Daniel to his marriage within 30 days—as contrary to public policy, but the majority did not alter the underlying custody allocations on that basis.

Broader precedential effect: The opinion does not announce a new rule of law; it applies existing standards (as discussed with reference to Baker v. Baker and the Child Custody Act) and expressly notes the trial court's language concerning standards was confusing but that the findings nonetheless were supported by a preponderance of the evidence. The dissent would have remanded for reconsideration under the correct standard.

Additional case and panel information included in the opinion: Decision was per curiam with Judge M.J. Kelly issuing a dissent. Legal Aid of Western Michigan (William D. Evenson) represented the defendant-appellant. The judgment was dated August 15, 1983; the trial court filed a written opinion July 21, 1983; the Court of Appeals decision was filed August 21, 1984.

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LEWIS v LEWIS

PER CURIAM.

Defendant-appellant, Mary Jane Lewis, appeals as of right from the custody provisions of a divorce judgment dated August 15, 1983.

Married September 14, 1973, plaintiff, Raymond Percey Lewis, and defendant-appellant, Mary Jane Lewis, were divorced on August 15, 1983. The parties have four children, Christine, born October 8, 1973, Angie, born July 24, 1976, Daniel, born August 4, 1978, and Mark, born November 26, 1980. After trial, the trial judge took the matter under advisement and then filed a written opinion on July 21, 1983. Pursuant to the opinion, the judgment of divorce awarded custody of Angie and Daniel to plaintiff-father and custody of Christine and Mark to defendant-mother. Plaintiff-father was ordered to pay child support for the two children awarded to defendant-mother in the sum of $25 per week per child, to continue until each child respectively reached 18. Defendant-mother appeals from the custody provisions provided in the judgment of divorce. Plaintiff-father does not file a brief on appeal.

In custody cases, on appeal we review de novo on the trial record. In so doing, we give considerable deference to the superior vantage point of the trial judge respecting issues of credibility and preferences under the factors enumerated in the child custody statute.

MCL 722.23; MSA 25.312(3).

In the within case, the trial judge held that a custodial environment was not established for Angie and Daniel. Under such circumstances, the measure of proof for award of custody is a preponderance of evidence. This is the standard which the court indicated it was applying in its opinion determining custody of Angie and Daniel. However, as defendant points out, the court then referred to a "clear and convincing case" when it stated:

Baker v Baker, 411 Mich. 567, 582; 309 N.W.2d 532 (1981).

"The facts would indicate that the mother has made out a clear and convincing case for custody for all four children under the circumstances as they existed at the time of the hearing. However, if the father has married or is to be married in the immediate future (less than 30 days from the date of this opinion) this court would consider that she has not made out a `clear and convincing' case against the father."

The court also referred to both standards when discussing plaintiff in its opinion, first indicating that plaintiff's burden of proof for a custody change was that of "clear and convincing evidence" and later holding that, as plaintiff had not met the "preponderance of evidence test", Christine and Mark would remain in their mother's custody.

In spite of this confusion in reference to the applicable standards, on review of the record we are not inclined to disturb the custody award made by the trial judge on this basis. The opinion indicates that the court carefully weighed each of the 11 factors required by the Child Custody Act of 1970 to determine the best interests of the children. While the court's language concerning the standards applied was confusing, the court's findings under each factor were based upon the evidence presented, and the testimony was such as to support the custody award by a preponderance of the evidence.

However, we believe the court erred in conditioning its award of custody of Angie and Daniel to plaintiff on plaintiff's marriage within 30 days of the divorce judgment. We believe this provision was against public policy. We do not, however, permit this error to become a basis for altering the custody determinations which were otherwise substantially according to law and in the best interests of the children.

Affirmed.

M.J. KELLY, P.J. (dissenting).

I respectfully dissent.

The trial court relied upon an incorrect standard of proof in awarding plaintiff-appellee custody of the two minor children, Angie and Daniel. There is no dispute but that an established custodial environment did not exist for either child. Thus, and as recognized by the majority, the trial court's custody decision was to be based upon the best interests of the two children as determined by the preponderance of the evidence. Baker v Baker, 411 Mich. 567, 582; 309 N.W.2d 532 (1981). The court, however, erroneously held defendant to the more burdensome clear and convincing standard of proof appropriately applicable on requests to change an established custodial environment.

While I would find that the court erred as a matter of law in awarding custody of Angie and Daniel to the plaintiff, I would not reverse the custody award as requested by defendant in her brief on appeal. I would instead remand to the trial court for reconsideration of the facts as established at the June 24, 1983, custody hearing in light of the appropriate standard of proof.

LEWIS v. LEWIS