McLauchlin v. McLauchlin

372 Mich. 275 (1964) 125 N.W.2d 867

McLAUCHLIN
v.
McLAUCHLIN.

Calendar No. 114, Docket No. 50,238.

Supreme Court of Michigan.

Decided February 3, 1964.

Robert A. Kozlow, for defendant.

BLACK, J.

The plaintiff wife and the defendant husband were divorced by decree entered May 5, 1956. The decree required that defendant pay, for support of the 3 minor children of the parties, the sum of $45 per week. Defendant duly made all such weekly payments. In May of 1959 plaintiff petitioned for permission to take the 3 children with her to California. Such permission was granted by order entered June 2, 1959, on special condition of summer custody. The pertinent portion of such order reads:

"It is hereby ordered, that the plaintiff may remove the children from the State of Michigan.

"It is further ordered that the defendant, Kenneth I. McLauchlin, upon making prior arrangements through the office of the friend of the court, may have the children for a period not exceeding 4 weeks during the summer months, and that during such visitation period with the defendant, the order for support shall be held in abeyance.

"It is further ordered, that the plaintiff shall bear the transportation costs for the children's annual visit with the defendant.

"It is further ordered, that the defendant's counter-petition, for change of custody, be denied."

Plaintiff refused, in 1959 and 1960, to let defendant have the children per such order. She did the same in 1961. On advice of counsel, defendant then stopped the support payments. Plaintiff has remarried, as has defendant, and seems now to be a permanent resident of California. Defendant thereafter was ordered to show cause, in contempt proceedings, for failure to make the support payments. At the hearing it was determined that plaintiff had failed to abide the summer custodial rights of defendant. The support payments were temporarily suspended by a "no determination now" order. The judicial effort, of course, was that of forcing plaintiff to reconsider. She refused to do so.

November 8, 1962, the matter came to final hearing. Judge Holland, feeling that continued suspension of payment might harm the children, ordered defendant to commence payment at the reduced rate of $15 per week, also that all arrearages since September 17, 1961, "are hereby canceled." Defendant, appealing, presents this question:

"Does the fact that the mother who is in California with the children and who refuses to send the children back to the State of Michigan to visit father, pursuant to court order, justify court in refusing to enforce support?"

On authority of Pronesti v. Pronesti, 368 Mich. 453, the circuit court's order is reversed. Upon remand the court will enter an order suspending, until further ascertainment is made per ensuing direction, defendant's decretally ordered obligation of child support. The court will proceed to further investigation, through the office of friend of court, designed to ascertain whether in actual fact the children are being and will be adversely affected by such suspension of payments. If plaintiff in her California home is able to and is providing requisite care for and support of the children, the order of suspension will continue until she conforms with defendant's visitation rights, at which time payment as then found necessary and just will be resumed. If, on the other hand, it is made to appear that such suspension will adversely affect the children, the court will enter a new order for resumption of payment by defendant, in such amount as newly ascertained facts may indicate. All arrearages will be canceled as of the time of ascertainment and new order as directed.

Bernstein v. Bernstein, 365 Mich. 491, is not opposed to the foregoing determination. Here there is a definite showing of "changed circumstances"; a showing which calls for a complete new look.

Ordered accordingly. No costs.

DETHMERS, KELLY, SOURIS, SMITH, and O'HARA, JJ., concurred with BLACK, J.

KAVANAGH, C.J., concurred in result.

ADAMS, J., took no part in the decision of this case.