Neff v. Neff , 358 Mich. 134 ( 1959 )

358 Mich. 134 (1959) 99 N.W.2d 344

NEFF
v.
NEFF.

Docket No. 19, Calendar No. 48,022.

Supreme Court of Michigan.

Decided November 25, 1959.

Stratton, Wise, Early, McDonald & Starbuck, for plaintiff.

Seymour & Seymour (Dalton G. Seymour, of counsel), for defendant.

VOELKER, J.

The chancellor below, without hearing any testimony, and on the basis of an oral report made to him in open court by the friend of the court, granted defendant father's contested petition to modify a decree of divorce (which decree originally awarded custody of the children to the plaintiff mother), thereby changing custody to the father. The plaintiff mother has appealed.

There is no point in further outlining the factual background of this case as it appears to be raised by the current pleadings. It is enough to say that there is a dispute. The action below was taken before our recent decisions were handed down in Bowler v. Bowler, 351 Mich. 398, and Campbell v. Evans, 358 Mich. 128. In view of those cases we find we must reverse and remand this case for further proceedings, including a hearing before the chancellor. Even assuming arguendo that custody of the children should be changed to the father, which we do not pass on, there is no way from the skimpy and almost nonexistent evidentiary record before us that we can determine whether there was any change in circumstances or, if so, whether it was sufficient to warrant the action taken below. It is especially important in cases of this nature, where possible further and future changes in circumstances may possibly lead to still further moves toward modification, that an evidentiary record be made. See, also, the somewhat related case of Krachun v. Krachun, 355 Mich. 167.

The order below modifying the decree as to custody of the children is reversed and the cause remanded for further proceedings, with costs to appellant.

DETHMERS, C.J., and CARR, KELLY, SMITH, BLACK, EDWARDS, and KAVANAGH, JJ., concurred.