Troxler v. Troxler

*525 R. M. Maher, J.

(dissenting). I must dissent. It is clear from a review of the entire record that the court below failed to apply the proper standard for determining whether a change of custody is appropriate. That standard is set out in MCL 722.27; MSA 25.312(7):

"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:

"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The 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.” (Emphasis added.)

At the time of the court’s decision, permanent custody was in plaintiff, the earlier order changing custody having been set aside for lack of jurisdiction. In order for the court below to amend the judgment of divorce to change custody from plaintiff to defendant, he was required to find by clear and convincing evidence that a change of custody was in the best interests of the children, Berman v Berman, 84 Mich App 740 ; 270 NW2d 680 (1978), Eigner v Eigner, 79 Mich App 189 ; 261 NW2d 254 (1977). Nowhere in the lower court’s findings was this standard even recognized, much less applied. The court below properly considered the factors set out in MCL 722.23; MSA 25.312(3) in determining whether the best interests of the children *526 would be served by changing custody. However, it failed to find by clear and convincing evidence that the best interests of the children required a change of custody. Instead, the court obviously found at most a preponderance of evidence supporting a change.

The court considered the parents equally qualified with regard to emotional ties with the children; capacity to give love, affection and guidance; capacity to provide for material needs; mental and physical health; home, school and community record of the children; and preference of the children. In the matter of moral fitness, the court considered defendant more fit solely because plaintiff had lived with her present husband before their marriage. The court for the same reason considered defendant’s home a more stable and satisfactory environment. The court apparently gave no weight to evidence of defendant’s history of drinking and violent conduct. Additionally, the court found that defendant’s home was the more permanent family unit, because plaintiff planned to move to a new town and because her present husband had not come to court to testify in the custody hearing. After weighing all these factors, the court concluded:

"When I put the sum of them together, the Court is satisfied it is in the best interests of the children that they remain in the present environment and in the present home and that it is in their best interest to do so.

"So an order may be entered granting the defendant husband the permanent custody of the three children.”

This Court is required to review de novo the record in a custody case, and to affirm the trial court’s judgment unless we find that it is against *527 the great weight of the evidence, constitutes an abuse of discretion or resulted from clear legal error on a major issue, MCL 722.28; MSA 25.312(8), Bahr v Bahr, 60 Mich App 354 ; 230 NW2d 430 (1975), Berman v Berman, supra. Failure to apply the clear and convincing evidence standard was clear legal error on the major issue of burden of proof.

Additionally, review of the trial court’s findings reveals that its decision was based largely on the fact that plaintiff had lived with her present husband prior to their marriage, rather than on the situation as it existed at the time of the hearing on the petition for change of custody. It is the conditions at the time of the hearing which should be the focus of the court’s inquiry, not past conduct of the parties, see Feldman v Feldman, 55 Mich App 147 ; 222 NW2d 2 (1974), Zawisa v Zawisa, 61 Mich App 1 ; 232 NW2d 275 (1975). See also Hilbert v Hilbert, 57 Mich App 247 ; 225 NW2d 697 (1974), Roudabush v Roudabush, 62 Mich App 391 ; 233 NW2d 596 (1975).

I have reviewed the record of the hearing below and find that the clear and convincing evidence standard was not met by the evidence presented. In my opinion the evidence in favor of each party .was evenly balanced, and, therefore, no change of custody should have been granted, Outcalt v Outcalt, 40 Mich App 392 ; 198 NW2d 779 (1972).

I would reverse.