Jack v. Jack

610 N.W.2d 231 (2000) 239 Mich. App. 668

Paul JACK, Plaintiff-Appellant,
v.
Lois Marie JACK, Defendant-Appellee.

Docket No. 219851.

Court of Appeals of Michigan.

Submitted December 14, 1999, at Detroit. Decided February 11, 2000, at 9:05 a.m. Released for Publication May 4, 2000.

Merchan & Corbin, P.C. (by Kim Corbin), Grosse Pointe Park, for the plaintiff.

Rita F. Young, Detroit, for the defendant.

Before: MARK J. CAVANAGH, P.J., and HOLBROOK, JR. and MICHAEL J. KELLY, JJ.

HOLBROOK, JR., J.

Plaintiff appeals as of right from the parties' judgment of divorce. We reverse and remand.

The parties are the parents of two minor children, Erin, born on November 30, 1992, and Adam, born on June 26, 1995. The parties separated in early 1998. On February 20, 1998, a stipulated order was entered granting both temporary physical and legal custody of the children. In the January 29, 1999, judgment of divorce, the parties were granted joint legal custody, but defendant was granted sole physical custody. Plaintiff's appeal is focused entirely on the issue of custody of the two children.

Plaintiff first argues that the trial court committed error requiring reversal by failing to determine whether an established custodial environment existed. We agree. MCL 722.27(1)(c); MSA 25.312(7)(1)(c) states that the circuit court

shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

Because a temporary custody order existed, the trial court was required to make a finding regarding the issue whether an established custodial environment existed. Bowers v. Bowers, 190 Mich.App. 51, 53-54, 475 N.W.2d 394 (1991); DeVries v. De Vries, 163 Mich.App. 266, 270, 413 N.W.2d 764 (1987). "Where a trial court fails to make a finding regarding the existence of a custodial environment, this Court will remand for a finding unless there is sufficient information in the record for this Court to make its own determination of this issue by de novo review." Thames v. Thames, 191 Mich.App. 299, 304, 477 N.W.2d 496 (1991). Accord Bowers, supra at 53-54, 475 N.W.2d 394.

Upon review de novo of the record, we believe that the evidence shows that an established custodial environment existed with both parents. Duperon v. Duperon, 175 Mich.App. 77, 80, 437 N.W.2d 318 (1989) ("An established custodial environment can exist in more than one home."). The record establishes that the children looked to both parents to provide them with "guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c); MSA 25.312(7)(1)(c). While defendant may have provided the majority of the financial support for the children despite an apparent ability of plaintiff to provide more assistance than he did, we do not believe that this necessarily means that such an environment existed only with defendant. Further, the fact that the children's primary residence remained in defendant's home after the parties separated did not extinguish the custodial environment that existed with plaintiff. See Nielsen v. Nielsen, 163 Mich.App. 430, 433, 415 N.W.2d 6 (1987). Therefore, because the trial court committed a clear legal error by failing to find that a custodial environment existed with both parents, Bowers, supra at 54, 475 N.W.2d 394, we hold that the case must be remanded to determine whether there was clear and convincing evidence that a change in custody was in the best interests of the children. Nielsen, supra at 433-434, 415 N.W.2d 6.

Finally, we reject plaintiff's argument that the trial court erred in admitting the psychological report prepared by Dr. Andrew Maltz in connection with the custody dispute in this matter. At plaintiff's request, the trial court ordered that "the parties and the two minor children undergo a psychological evaluation with Dr. Andrew Maltz ... with a report to be submitted to the Court with regard to the issue of custody." Further, while plaintiff's counsel objected at trial to plaintiff's being questioned about the contents of the report, counsel also indicated that plaintiff had no "problem with the Court" reviewing Dr. Maltz' report. Therefore, because plaintiff's position on appeal is contrary to his position below, and because he waived any objection he may have had to the trial court's reviewing the report, we conclude that plaintiff's argument is without merit. People v. Fetterley, 229 Mich.App. 511, 520, 583 N.W.2d 199 (1998); Phinney v. Perlmutter, 222 Mich.App. 513, 537-538, 564 N.W.2d 532 (1997).

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

MARK J. CAVANAGH, P.J., concurred.

MICHAEL J. KELLY, J. (dissenting).

I respectfully dissent.

The majority finds that there is sufficient information on the record for this Court to make its own determination of the custody issue by review de novo. Although it is true that the record indicates that the children relied on both parents to provide them with guidance, discipline, and the necessities of life, I believe this Court is too remote a tribunal to interpret the nuances that always emanate from determinations of the credibility of parties and their children, let alone interviews regarding custody matters and preferences of the children. I would prefer to remand and have the trial court determine the question of custodial environment because I believe that, on the present record, the court could have made a conclusion that no established custodial environment existed with either parent. Likewise, I believe the court could have concluded that because the children lived with defendant, the only established custodial environment was with her. If so, its award to defendant of physical custody of the children would require affirmance because, except with regard to factor k, M.C.L. § 722.23(k); MSA 25.312(3)(k), I am satisfied that the trial court's findings of fact with respect to each of the factors in question are not contrary to the great weight of the evidence and that although factor k favored plaintiff, any error in that regard was harmless in light of the trial court's findings regarding the other best interest factors.

I also believe that the trial court erred in admitting the psychological report prepared by Dr. Andrew Maltz because plaintiff did object to the admission of the psychologist's report when defense counsel attempted to question defendant regarding the psychologist's conclusions. Although plaintiff's attorney indicated that he had "no problem with the court reviewing Dr. Maltz's report," that certainly did not constitute a waiver of his objection. The psychologist did not testify, and, without a stipulation by both parties that the report should be admitted, the report was not admissible. Baluch v. Baluch, 180 Mich.App. 689, 693, 447 N.W.2d 775 (1989); Petoskey v. Kotas, 147 Mich.App. 487, 490, 382 N.W.2d 804 (1985).

I would remand for a determination of custodial environment by the trial court, but bar the admission of the psychological report prepared by Dr. Maltz unless he testifies or the parties stipulate its admissibility.