Cavanagh v. Cavanagh , 17 Mich. App. 585 ( 1969 )

17 Mich. App. 585 (1969) 170 N.W.2d 176

CAVANAGH
v.
CAVANAGH

Docket No. 6,063.

Michigan Court of Appeals.

Decided May 29, 1969.

Piggins, Balmer, Grigsby, Skillman & Erickson for plaintiff.

Buesser, Buesser, Snyder & Blank, for defendant.

BEFORE: McGREGOR, P.J., and R.B. BURNS and DANHOF, JJ.

McGREGOR, P.J.

This appeal disputes a judgment of absolute divorce granted defendant by the circuit court on the ground of extreme cruelty. The court awarded custody of the four oldest boys, aged 14, 13, 12 and 8, to their father, the defendant, and the other four children to their mother, the plaintiff.

The court found that defendant had presented the required proof for a judgment of divorce. Plaintiff contends, however, that statutory grounds for divorce were not established because the primary factors mentioned by the court, namely, the absence of hope for reconciliation and incompatibility, are not sufficient, according to Michigan divorce statutes.

Clearly, incompatibility is not a statutory ground for divorce. Niskanen v. Niskanen (1963), 371 Mich. 1. However, since review of divorce judgments is de novo, Buck v. Buck (1948), 320 Mich. 624, the total quantum of evidence presented to the lower court may be reviewed. The record contains ample factual support for a finding of extreme cruelty on the part of plaintiff, as pleaded by defendant. Therefore, we are not convinced that we must have reached a different conclusion had we occupied the position of the lower court under like circumstances. Reeves v. Reeves (1952), 335 Mich. 193.

Plaintiff controverts the lower court's custody disposition by arguing, first, that the judge should not have relied on the preferences of the three older boys. The trial judge did not rely solely on the wishes of the boys, but was guided by a comprehensive and well-reasoned opinion by the Friend of the Court Referee. The Referee heard six witnesses for the plaintiff and three witnesses for the defendant, as well as the parties themselves. In addition, he had the benefit of a separate report by an investigator for the Friend of the Court. This report, based on three days of testimony, interviews with the children, and independent investigation, recommended that custody of the four older boys be awarded to defendant and that custody of the other four children be awarded to plaintiff. The testimony taken at the Friend of the Court hearings was offered and admitted into evidence at the trial, in its entirety, pursuant to the stipulation of the parties. Thus, it is not apparent that the judge abused his discretion regarding the custody of the three older boys.

Next, plaintiff asserts that the grant of custody of the 8-year-old boy to the father was erroneous, since there is a clear statutory preference for the custody of children under 12 to be awarded to the mother. MCLA § 722.541 (Stat Ann 1957 Rev § 25.311); Paton v. Paton (1961), 363 Mich. 192. Defendant responds by arguing that the award of custody is discretionary, with the child's welfare the primary consideration. Arsenault v. Arsenault (1966), 5 Mich. App. 476. The record indicates that the court determined the custody of the 8-year-old child largely in reference to the Friend of the Court report and its own conclusions as to the best interests of the child. Pursuant to the stipulation of the parties made at trial, the trial judge conferred privately, in chambers, with the five oldest children to assist the court in its determination. The custody determination was proper, as countenanced by Hornbeck v. Hornbeck (1946), 316 Mich. 208.

The final issue raised concerns the court's award of support and alimony payments and the disposition of marital property. The court was clearly within its discretion in its disposition of the litigants' property and its determination of payments to be made. Again, we cannot conclude that we would have reached a different conclusion or that the record discloses a manifest abuse of discretion. Billingsley v. Billingsley (1946), 315 Mich. 417.

Affirmed. Costs to defendant.

All concurred.