Nichols v. Nichols , 106 Mich. App. 584 ( 1981 )

106 Mich. App. 584 (1981) 308 N.W.2d 297

NICHOLS
v.
NICHOLS.

Docket No. 51912.

Michigan Court of Appeals.

Decided May 20, 1981.

Daniel J. Kelly, for plaintiff.

Lyon, Mellon & Conboy, for defendant.

Before: BEASLEY, P.J., and R.M. MAHER and R.S. HOFFIUS,^[*] JJ.

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 report 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 custody 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.

BEASLEY, P.J. (concurring).

I concur fully in the majority's opinion, but write additionally, since I was a member of the panel in Dempsey v Dempsey,^[1] which is cited in this opinion and was referred to in the briefs.

While I have no desire to recant from the result and the findings in Dempsey, I have second thoughts about the language used with respect to the recommendation and report of the friend of the court. While this language was in the nature of dicta, unnecessary to decision, it is, to say the least, misleading.

Insofar as the following emphasized language from Dempsey is interpreted to suggest that awareness by a trial judge of the contents of a friend of the court report or recommendation not admitted in evidence requires reversal on appeal, it is erroneous:

"It was error for the court to weigh, in making his custody determination, any evidence not made part of the record, including the friend of the court report. The trial judge's admitted knowledge of the contents of this report might well have had a persuasive effect in the final determination of custody. For this reason alone we would have to vacate the trial court's custody order."^[2] (Emphasis added.)

MCL 552.253; MSA 25.173 provides as follows:

"Sec. 3. Said ``Friend of the Court' shall have full power by citation or other order duly issued by the circuit court to compel the attendance of witnesses to take testimony and to do each and everything necessary, including the taking of contempt proceedings, to collect any and all delinquent payments due for said dependent minor children, to make recommendations to the circuit courts for the betterment of the conditions of said dependent minor children and to ascertain the moral and general conditions surrounding said dependent minor children and shall report the result of his findings in writing to the circuit court. The judges of each of the several judicial circuits throughout the state of Michigan may refer to the ``Friend of the Court' for investigation and recommendation all pleadings, including motions in divorce, separate maintenance and annulment cases wherein the rights of dependent minor children are involved. Said ``Friend of the Court' shall assume responsibility for the enforcement of all preliminary and interlocutory as well as decretal orders in such causes. The court may designate the ``Friend of the Court' to act as referee in the taking of testimony of witnesses and hearing the statement of parties upon pending motions and such ``Friend of the Court' so designated shall take and subscribe the oath of office provided by constitution and shall have authority to administer oaths and examine witnesses and shall make a written, signed report to the court containing a summary of the testimony and a recommendation for the court's findings and disposition of such matters."

GCR 1963, 727.1 amplifies and specifies the statutory duties of the friend of the court as follows:

".1 Investigation and Report. In all actions in which an application is made for alimony, for the support and maintenance of a wife or minor children, or for the custody of minor children, the Friend of the Court shall:

"(1) Investigate the financial ability, occupation and earning capacity of the parties; and

"(2) If there are minor children, investigate the home conditions, environment and surroundings of the parties and of any other person in whose home the children are being kept, or are proposed to be kept at any time; and

"(3) Include in a final report a finding as to home conditions and finances of the parties and the moral surroundings and care given the child or children, together with a recommendation as to custody, visitation rights, amount of support, and amount of alimony. A copy of the final report shall be filed and notice of filing given to counsel for each party in the manner provided for in Rule 107.

"All motions may be referred to the Friend of the Court for investigation and recommendation."

As all circuit judges are well aware, in one form or another the friend of the court recommendation is almost invariably placed in the court file for their review. Thus, the court rule and statute may be said to require making the friend of the court recommendation available to the court. We would assume that this includes a direction to the circuit judge to be aware of it. Complying with the statute and court rule by reading the friend of the court recommendation does not disqualify the trial judge from deciding custody, visitation, and child support questions.^[3]

However, it is the law that where custody, visitation, or child support becomes a contested matter for evidentiary hearing, the friend of the court recommendation is not admissible in evidence except by stipulation of the parties. Neither are the reports (the so-called raw file) of the friend of the court admissible in evidence, except as stipulated.

The findings of a trial judge relative to custody must be based upon competent evidence adduced in the hearing. The recommendation and reports of the friend of the court are not such admissible evidence in the contested hearing except upon stipulation of the parties.

In summary, the trial judge may read and review the friend of the court recommendation and reports. Awareness of the contents of such recommendations and reports does not disqualify the trial judge from deciding contested issues, but where there is a contested issue it must be decided upon competent evidence.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] 96 Mich. App. 276; 292 NW2d 549 (1980), modified on other grounds 409 Mich. 495; 296 NW2d 813 (1980).

[2] Id., 284.

[3] Ewald v Ewald, 14 Mich. App. 665, 672; 166 NW2d 49 (1968), Campbell v Evans, 358 Mich. 128, 131-132, 99 NW2d 341 (1959), Krachun v Krachun, 355 Mich. 167, 169; 93 NW2d 885 (1959), Bowler v Bowler, 351 Mich. 398; 88 NW2d 505 (1958).