Arsenault v. Arsenault , 5 Mich. App. 476 ( 1966 )

5 Mich. App. 476 (1966) 146 N.W.2d 837

ARSENAULT
v.
ARSENAULT.

Docket No. 906.

Michigan Court of Appeals.

Decided December 22, 1966.

Thomas P. Gillotte, (Brakie J. Orr, of counsel), for plaintiff.

Powell, Peres, Carr & Jacques (Leonard A. Peres, of counsel), for defendant.

QUINN, P.J.

Plaintiff filed complaint for divorce on the basis of cruelty. Defendant answered and also filed a cross-complaint for divorce on the basis of cruelty to which plaintiff filed answer. At the conclusion of a full trial, plaintiff was granted a divorce, custody of an 8-year-old child, as well as other relief, and defendant's cross-complaint was dismissed. Defendant appeals and questions the propriety of the grant of divorce and custody to plaintiff and contends he should have been awarded the divorce and custody.

The rule governing this Court on an appeal of this type is well stated in Chubb v. Chubb (1941), 297 Mich. 501, 506, as follows:

"While we are not restricted by the findings of the circuit court, a divorce case on appeal being heard de novo, especial consideration is given to such findings, so largely based upon the credibility of the witnesses, and the reviewing court ought not to reverse the determination of the trial court in such a case, unless convinced that it must have reached a different conclusion had it occupied the position of the lower court, under like circumstances."

A recitation of the facts relied on by each party would serve no purpose. Suffice it to say that de novo review of the record does not convince us that we would have reached a different conclusion than that reached by the trial judge had we occupied his position.

With respect to the award of custody to plaintiff, the statutory presumption favors her. CL 1948, § 722.541 (Stat Ann 1957 Rev § 25.311). In Ostergren v. Ostergren (1962), 368 Mich. 408, 411, the Supreme Court said:

"And, normally, we do not override the mother's statutory preference even when the proofs indicate the mother has been guilty of serious misconduct if the best interest of the children requires they be continued in her custody. Particularly is this so if the custody decision must be made at the time of entry of the divorce decree when the choice usually is between leaving the children with their mother or leaving them with their father."

The award of custody is a discretionary matter. CL 1948, § 552.16 (Stat Ann 1957 Rev § 25.96); CL 1948, § 722.565 (Stat Ann 1957 Rev § 25.241). The welfare of the child is the primary consideration, Lehman v. Lehman (1955), 342 Mich. 708, and proof of unfitness is required to deprive the mother of custody, Geark v. Geark (1947), 318 Mich. 614. The advantage of the trial court in being able to observe these parents during the trial, and to hear their testimony is peculiarly persuasive in the area of custody. It is such that this Court is not prepared to say the trial court abused its discretion in not finding the mother unfit.

Affirmed, with costs to plaintiff.

FITZGERALD and T.G. KAVANAGH, JJ., concurred.