Prus v. Prus ( 1972 )

Lesinski, C. J.

Plaintiff Shirley Ann Prus brought this action for a judgment of absolute divorce, alleging extreme cruelty. Defendant Perry Ray Prus filed a counter-complaint for absolute divorce, also charging extreme cruelty as his ground. From a judgment awarding plaintiff a divorce and custody of the three minor children still residing in the marital home, defendant husband appeals as of right.

Defendant raises two issues before this Court, arguing that the trial court erred in granting a divorce to plaintiff, rather than to him, and that the trial court erroneously awarded custody of the three minor children to plaintiff.

Being of an equitable nature, a divorce action is reviewed de novo in this Court. However, the trial court’s findings of fact are accorded great weight for, as was stated in Heckelman v Heckelman, 3 Mich App 159,164 (1966):

"[T]he trial court has the distinct advantage over this Court of seeing and hearing the parties and the witnesses, observing their demeanor and attitudes, and is in a better position to weigh the evidence and determine the credibility thereof. This Court will not substitute its judgment for that of the trial judge, without showing of abuse of discretion.”

In regard to whether the trial court committed error by granting an absolute divorce to plaintiff, a review of the record reveals that both plaintiff and defendant charged each other with various acts of wrongdoing and that each generally denied the accusations of the other. The only other testimony at trial was provided by five witnesses called by defendant. The trial court, in a written opinion, stated that, disregarding the mutual denials and accusations of the parties themselves, the testimony adduced by defendant’s witnesses at trial tended to favor plaintiff’s position.

Especially significant, in the trial court’s opinion, was the testimony of Ruth Lowe, who was the Prus’s next door neighbor. Mrs. Lowe testified that she had seen plaintiff inebriated only once, in contrast to defendant’s position that plaintiff was an alcoholic. Mrs. Lowe related that she could remember only one occasion when plaintiff was acting in a loud manner, and that was because defendant was striking their son. Mrs. Lowe further told of plaintiff’s complaints about the beatings which she received from defendant. On the other hand, another neighbor, Beverly Pittman, testified that plaintiff "always had a beer bottle”, and that the situation at the marital home, in the absence of defendant, "was really a riot”. However, she further stated that defendant recently "had a woman over there” at the marital home.

Defendant, in his brief on appeal, discusses the recrimination defense, MCLA 552.10; MSA 25.90. On the basis of the testimony at trial, though, defendant is asserting, not that the trial court erred in granting a divorce at all in this case, but that the trial court erred in granting a divorce to plaintiff, instead of to defendant. Concerning the recrimination defense, this Court, in Formicola v Formicola, 32 Mich App 417, 420, said:

"It has long been a rule that those who came into a court of chancery must have clean hands and, if not, the court will leave the parties as it finds them. However, there is a growing tendency in divorce cases to relax this rule, on grounds of public policy or the particular proofs in the case under consideration. The more modern view is to adopt a doctrine of comparative rectitude or turpitude.”

We cannot say, on this record, that the trial court abused its discretion in finding that the comparative guilt of defendant outweighed that of plaintiff. See Jaikins v Jaikins, 370 Mich 488 (1963).

We also reject defendant’s contention that the trial court erroneously granted custody of the three minor children to plaintiff. The standard which we employ in reviewing child custody issues is mandated by statute. MCLA 722.28; MSA 25.312(8) states that:

"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.”

After examining the record in this case, we hold that the trial court did not err under this standard in awarding custody of the children to the plaintiff wife.

Affirmed.

Bronson, J., concurred.