Petrey v. Petrey

127 Mich. App. 577 (1983) 339 N.W.2d 226

PETREY
v.
PETREY

Docket No. 63789.

Michigan Court of Appeals.

Decided July 22, 1983.

Stewart, O'Reilly, Lascoe & Rancilio, P.C. (by Paul J. O'Reilly), for petitioner.

Glime, Daoust, Wilds, Rusing & Widlak (by Richard C. Stavoe), for respondent.

Before: T.M. BURNS, P.J., and R.M. MAHER and CYNAR, JJ.

PER CURIAM.

On November 23, 1981, the trial court entered an order in this case allowing petitioner visitation rights with her grandchild. Respondent appeals by leave granted.

Before respondent and her husband, Robert Petrey, the petitioner's son, were divorced, Robert died. Subsequently, the divorce proceedings were stopped. Over the next few years, the relationship between the parties in this case deteriorated. Respondent refused to allow petitioner to see the grandchild, Bradley, respondent's son. Therefore, petitioner sued to obtain visitation rights.

Respondent argues that the statute then in effect limits grandparental visitation rights to actual disputes concerning the child's custody. MCL 722.27; MSA 25.312(7). Recently, 1982 PA 340 was added as MCL 722.27b; MSA 25.312(7)(b), which states:

"If a natural parent of an unmarried child is deceased, a parent of the deceased person may commence an action for visitation."

In light of this recent statute, respondent's argument is without merit.

Respondent next argues that the trial court's opinion did not comply with GCR 1963, 517.1 and that its decision was against the great weight of the evidence. Because we agree that the opinion was inadequate, we do not address the great weight of the evidence argument.

GCR 1963, 517.1 requires a trial court to make findings of fact whenever a case is tried without a jury. These findings are necessary to allow this Court to effectively carry out its appellate responsibilities. Wolfe v Howatt, 119 Mich. App. 109; 326 NW2d 442 (1982). Although in a child custody dispute the trial court must make a specific finding on each factor listed in MCL 722.23; MSA 25.312(3), it need not separately evaluate all of these in a pure visitation dispute but may focus solely on the contested issues. Hoffman v Hoffman, 119 Mich. App. 79; 326 NW2d 136 (1982). No party may effectively waive this requirement. People v Smith, 101 Mich. App. 110; 300 NW2d 470 (1980).

A dispute over visitation must be decided in the child's best interests. Cooper v Cooper, 93 Mich. App. 220; 285 NW2d 819 (1979). After reviewing the record, we cannot find any opinion in which the trial court made specific findings on any of the material issues. Therefore, pursuant to Hoffman, supra, the appropriate remedy would normally be to remand this case to the trial court to write an opinion explaining why the child's best interests support its order. Unfortunately, the trial judge who issued the order allowing visitation has since died. Although we can find authority giving us the power to require a retired trial judge to write a new opinion,^[1] we can find no authority giving us guidelines if the trial judge is deceased.

Although, conceivably, we could decide the matter de novo ourselves, we believe that the best alternative is to remand for a new hearing. Even with de novo review, we strongly defer to the trial court's findings. Ray v Mason County Drain Comm, 393 Mich. 294, 303; 224 NW2d 883 (1975); Caywood v Dep't of Natural Resources, 71 Mich. App. 322; 248 NW2d 253 (1976), lv den 399 Mich. 845 (1977).^[2] In the present case, the facts are strongly contested. An appellate court is not the best forum for resolving evidentiary conflicts and for determining in the first instance which side should prevail.^[3]

Therefore, we believe that the most appropriate course in this case is to remand for a new hearing. Because of this resolution, we need not address respondent's last argument. The stay of July 1, 1982, is temporarily lifted pending the outcome of the hearing on remand.

Remanded for a new hearing. We do not retain jurisdiction.

NOTES

[1] Livingston v Krown Chemical Mfg, Inc, 394 Mich. 144, 153-154; 229 NW2d 793 (1975); Dauer v Zabel, 381 Mich. 555, 558; 164 NW2d 1 (1969).

[2] In Lansing Charter Twp v Bondy, 408 Mich. 854 (1980), the Supreme Court, rather than deciding the issues itself, remanded the case for a new trial where the trial court had not adequately complied with GCR 1963, 517.1 and most likely would not have been able by that time to fairly comply with it on remand.

[3] In fact, child custody matters seem to be especially troublesome. See Siwik v Siwik, 89 Mich. App. 603, 606; 280 NW2d 610 (1979).