Reynolds v. Reynolds , 323 Mich. 332 ( 1948 )

The sole question here is as to who shall have the custody of a boy, now six years of age, the issue of the marriage between the parties hereto. In May, 1944, plaintiff was granted an uncontested decree of divorce from the defendant, and by the decree the custody of the minor was given to his paternal grandmother, in accordance with an agreement between the parties which the court approved. The plaintiff was decreed to pay $5 per week for the child's support. He has since remarried.

In March, 1947, the defendant filed a petition to amend the decree, and to give her the custody of the child. The plaintiff opposed granting the petition and an extended hearing was held before Judge Archie D. McDonald, acting in Calhoun county. At its conclusion, Judge McDonald filed an opinion reviewing the facts and the law, and concluded that it would be for the best interests of the minor to grant future custody to his mother, the defendant Ferne B. Reynolds, who had remarried and had become Ferne B. Robinson. From such amended decree the boy's father appeals.

The testimony adduced by the plaintiff in opposing the change of custody relates largely to the facts and circumstances as they existed at and before the time the decree of divorce was granted in 1944. Admittedly the defendant had made "mistakes" which then afforded ample ground for divorce. At that time she agreed that custody of the child should be given to the plaintiff's mother. She had no home and was without means to take care of the child. Doubtless there was a further reason for not giving her the custody, that under the proofs shown the court probably would not have found her to be a fit person. The testimony taken at the hearing on the instant petition shows a definite change in her attitude as well as her circumstances. She remarried in March, 1946, and lives with her husband in the home he owns in Urbandale, a part of Battle Creek. She is now happily married, neither of them uses intoxicating liquor, her husband works steadily. He also had been previously divorced, and is paying alimony for the support of three children by a former marriage. She testified:

"Since I met my husband I haven't drank a thing. We don't have it in the house. My husband won't allow it. I feel because I am older now that I have a different outlook upon things. My age had a great deal to do with the indiscretions of which I have been guilty in the past."

The proofs establish that the defendant's present husband is a good parent, and that he desires to have the child in their home. The child would have the advantages of school, Sunday school, clothing, medical attention, and the care of his mother. Admittedly the home would be a proper place for the child.

Since the divorce the boy has been in the custody of his grandparents who live in Vermontville, a village in Eaton county. There is no question whatever but that they have a proper home in which to care for the boy, and the proof is equally convincing that they are proper persons to have the care and custody of the boy. It may be their misfortune but certainly not their fault that they are somewhat elderly people (she is 54, the husband is past 70). She was divorced from a former husband in 1939, and married her present husband the same year. They have a good home, but no independent income except that he is receiving about $30 per month "from social security." They acquired their present home in October, 1946. When they first took the custody of the boy they lived in Kalamazoo. In October, 1945, they went West in a house trailer, taking the boy with them, for about 5 months, then lived in Constantine until October 10, 1946. They would like to keep the boy.

The circuit judge thus had evidence of two good homes and two families who contested for the custody, where either home would be a proper place to leave the boy. However, the court had ample proof of a change of conditions since the boy's mother, the defendant here, had consented to the custody being decreed to the boy's paternal grandmother. It shows that the boy's mother now has a proper home, with ample means, and is now a proper person to have the custody. Under such conditions, the court took into consideration the change in her circumstances as well as the appearance of the witnesses and their manner of testifying before him, and also gave consideration to the statute by virtue of which in case of a separation the mother is prima facie entitled to the care and custody of children under 12 years of age. 3 Comp. Laws 1929, § 12852 (Stat. Ann. § 25.311).

"Evidence that mother was unfit to have custody of her four-year-old son or has relinquished such right by contract must be clear and convincing in order to deprive her of his custody in view of statute giving her first claim to custody of children under the age of 12 years (3 Comp. Laws 1929, § 12852)." Burkhardt v. Burkhardt (syllabus), 286 Mich. 526.

"After decree of divorce the trial court still has jurisdiction to consider whether the best interests of the children will be subserved, and whether the mother is a fit person to continue having the custody (3 Comp. Laws 1929, § 12739).^*

"While the welfare of a child is always the concern of the court in suits for divorce, the mother is, by statute, prima facie entitled to the custody of a three-year-old child (3 Comp. Laws 1929, § 12852)." Gorton v. Gorton (syllabi), 316 Mich. 375.

On January 5, 1948, we decided a case where the facts are quite parallel to those in the case at bar. In that case the husband was granted a decree of divorce and shortly afterward, because of the misconduct of the wife, the custody of the minor children was given to him. Later, when she desired to recover the custody, the trial judge told her "to remain in Lansing and make a good name for herself." She followed this advice and established a very fine reputation. Both parties to the divorce remarried, and both had established satisfactory homes. The children were in the actual custody of the husband in his new home. After three years she filed a petition to modify the decree and give her the custody. Her petition was granted by the trial judge and the order was affirmed by this Court on appeal. The Court said:

"We are convinced that the record shows that plaintiff is now a proper person to have custody of the children, and that they will be well taken care of by her. While it is true that the custody was taken away from her for proper reasons in 1943, she has done everything possible to redeem herself in the eyes of the court and the public by her good conduct and behavior ever since.

"The testimony shows that plaintiff was only 16 years of age when she married defendant, and 21 when she lost the custody of the children. It is claimed that her delinquency was due to her extreme youth. * * * The sole question is whether the court abused its discretion, after seeing and hearing plaintiff and the other witnesses, by awarding the custody of the children to plaintiff. We have held in these unfortunate cases that in awarding the custody of minor children on the separation of parents, a court of chancery has discretionary powers to consider the varying elements entering into each case and to make such disposition as the best interests of the child appear to demand; that if there is not an abuse of discretion, we will uphold the decree of the trial court. * * *

"Under the peculiar facts of the instant case, we cannot say that the judge abused his discretion in giving the custody of the children to the plaintiff." Sargent v. Sargent, 320 Mich. 33.

In these cases the controlling question is, what is for the best interests of the minor. The trial court has the advantage of seeing and hearing the witnesses and in this case, from a reading of the record, we are not convinced that we would have reached a different conclusion. The decree is affirmed. The circuit court has the power to make any future order as to the custody, should changes in conditions require further modification for the best interests of the child. For that purpose, and for enforcement of the decree, the case is remanded. No costs awarded.

BUSHNELL, C.J., and SHARPE, NORTH, BUTZEL, and CARR, JJ., concurred with BOYLES, J.

^* Stat. Ann. § 25.97. — REPORTER.