RODNEY A HATHAWAY V LUCINDA J POSTON-HATHAWAY
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STATE OF MICHIGAN
COURT OF APPEALS
RODNEY A. HATHAWAY,
UNPUBLISHED
April 14, 1998
Plaintiff-Appellee,
v
No. 203582
Monroe Circuit Court
LC No. 95-022338-DM
LUCINDA J. POSTON-HATHAWAY,
Defendant-Appellant.
Before: Saad, P.J., and Wahls and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from a judgment of divorce awarding sole physical and legal
custody of the parties’ minor children to plaintiff, and granting plaintiff a fifty-six percent share of the
marital assets. We affirm in part, reverse in part, and remand for further proceedings.
The parties, both of whom are optometrists, married in 1978. They have two children, a
daughter born in 1984 and a son born in 1988. The parties began to experience marital problems and
sometime early in 1995 sought the services of a marriage counselor. According to plaintiff, the marriage
continued to deteriorate throughout the summer of 1995. Plaintiff filed for divorce on November 30,
1995. At trial, defendant acknowledged that she had a romantic relationship with her dance instructor
prior to plaintiff’s filing for divorce but testified that their sexual relationship did not begin until December
1995, after plaintiff had filed for divorce.1 The day before the divorce trial began, defendant purchased
a house approximately six or seven doors away from the parties’ marital home. She assumed
occupancy of the house just prior to the conclusion of the divorce trial. Plaintiff and the children
continued to live in the marital home.
Defendant first argues that the trial court committed clear legal error in failing to determine
whether a custodial environment had been established prior to awarding custody to plaintiff. We agree.
Whether an established custodial environment exists is a question of f which the trial court must
act,
address before it determines the child's best interest. Overall v Overall, 203 Mich App 450, 455; 512
NW2d 851 (1994). A custodial environment is established if
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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. [MCL 722.27(1)(c); MSA
25.312(7)(1)(c).]
An established custodial environment is one of significant duration, both physical and psychological, in
which the relationship between the custodian and child is marked by security, stability and permanence.
Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981); DeVries v DeVries, 163 Mich
App 266, 271; 413 NW2d 764 (1987). A custodial environment can be established as a result of a
temporary or permanent custody order, in violation of a custody order, in the absence of a custody
order, or pursuant to an order which was later reversed. Hayes v Hayes, 209 Mich App 385, 388;
532 NW2d 190 (1995). The circuit court must make a specific finding regarding the existence of a
custodial environment. If it fails to do so, this Court will remand for a finding unless there is sufficient
information in the record for this Court to make its own finding by de novo review. Underwood v
Underwood, 163 Mich App 383, 389; 414 NW2d 171 (1987).
In the present action, a temporary custody order granting joint legal and physical custody of the
children to both parties was signed December 5, 1995. Both parties were to remain in the marital
home, with plaintiff having primary responsibility for the children every Wednesday, Thursday, Friday,
and Saturday, and defendant having primary responsibility every Sunday, Monday, and Tuesday. The
parties abided by the order throughout the pendency of the divorce. The two children were interviewed
by the friend of the court referee, the court-appointed psychologist, and the court itself. While their
exact comments were kept confidential, the court did indicate that the children got along well with both
parents and very much wanted to be with both parents. The court further noted that the children would
be unhappy if their relationship with defendant were somehow cut off and inferred that the daughter may
have expressed a preference to be with defendant.
Nonetheless, in making its final custody determination, the circuit court did not first determine
whether a custodial environment had been established. Failure to determine whether an established
custodial environment exists prior to awarding custody constitutes clear legal error on a major issue, see
Bowers v Bowers, 198 Mich App 320, 323; 497 NW2d 602 (1993), particularly since whether an
established custodial environment exists determines the standard of proof courts are to apply to custody
determinations. When a custody determination would change the established custodial environment,
MCL 722.27(1)(c); MSA 25.312(7)(1)(c) requires that the change be shown to be in the child’s best
interest by clear and convincing evidence. Rummelt v Anderson, 196 Mich App 491, 494; 493
NW2d 434 (1992). Upon a finding of error, appellate courts should remand to the trial court unless the
error was harmless. Fletcher v Fletcher, 447 Mich 871, 882; 526 NW2d 889 (1994). Therefore,
we remand this case to the circuit court for a determination of whether an established custodial
environment existed prior to the entry of the judgment of divorce. If an established custodial
environment is found to have existed, this environment can be changed only upon a showing, by clear
and convincing evidence, that the change is in the best interests of the children. MCL 722.27(1)(c);
MSA 25.312(7)(1)(c).
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Defendant further argues that the circuit court overly emphasized her relationship with her dance
instructor, giving improper weight to this factor in determining the best interests of the children. Custody
disputes are to be resolved in the children’s best interest, as measured by the factors set forth in MCL
722.23; MSA 25.312(3). Specifically, defendant maintains that the circuit court erred in evaluating
statutory best interest factors b, d, e, and l, because the court’s analysis under these factors was
permeated by its consideration of the relationship. We agree with defendant that the circuit court erred
in considering her relationship throughout its analysis of the best interest factors. Because we find that
this error was not harmless, our appropriate response is to remand to the circuit court to reevaluate the
best interest factors and the appropriate custodial arrangement. See Fletcher, supra at 888-889.
Because it will be germane to the circuit court’s reevalution on remand, we do note that the
court mentioned defendant’s extramarital relationship throughout its analysis despite the court’s
recognition of opinions reversing trial courts for overemphasizing extramarital relationships in determining
custody. We remind the court, as it plainly was aware, that this overemphasis is inappropriate. In an
opinion mentioned by the circuit court, Truitt v Truitt, 172 Mich App 38; 431 NW2d 454 (1988), this
Court reversed the trial court’s custody determination because, among other things, the court based its
findings on best interest factors d and e on its conclusions about one party’s extramarital relationships.
As the panel noted, “A trial judge must consider, evaluate, and determine each of these factors
individually to determine the best interests of the child.” Id. at 47. Moreover, in its reevaluation of
factor f, the moral fitness of the parties, the circuit court “must look to the parent-child relationship and
the effect that the conduct at issue will have on that relationship.” Fletcher, supra at 887. Even when
evaluating factor f, extramarital relations are not necessarily a reliable indicator of how one will function
within the parent-child relationship. Id. “[T]o punish infidelity at the risk of jeopardizing a child’s best
interest simply contravenes the overriding purpose of the Child Custody Act.” Id. at 888.
Finally, we make no comment on defendant’s contention that a proper analysis of the best
interest factors would favor a grant of custody to her. Although we recognize that the circuit court was
not required to accept their recommendations, we do note that both the court-appointed psychologist
and the friend of the court recommended that the joint custody arrangement established during the
pendency of the divorce proceedings was in the best interests of the minor children and should be
continued.
Defendant next argues that the trial court improperly valued defendant’s business. We disagree.
When reviewing dispositional rulings, we must first review the circuit court’s findings of fact under the
clearly erroneous standard. Sparks v Sparks, 440 Mich 141, 151; 485 NW2d 893 (1992). If the
findings of fact are upheld, we must then decide whether the dispositive ruling was fair and equitable in
light of those facts. Id. at 151-152. The circuit court’s ruling should be affirmed unless we are left with
the firm conviction that the division was inequitable. Id. In the present case, the circuit court did not
commit clear error in valuing defendant’s business. Defendant herself represented her business to be
valued at $41,000 when she signed a loan application. Furthermore, the trial court’s evaluation of
$41,000 was within the range of figures given by the parties’ experts. As such, the valuation was not
clearly erroneous. Rickel v Rickel, 177 Mich App 647, 650; 442 NW2d 735 (1989).
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Next, defendant contends that the circuit court improperly distributed the proceeds twice from a
single bank account. We agree. Defendant maintained two checking accounts, one denominated the
“household account” and one denominated the “business account.” Defendant paid household
expenses out of the household account and deposited moneys in the business account for the purpose of
paying taxes. Plaintiff’s expert included the balance in the business account, which at the time of the
valuation was approximately $20,000, to arrive at the figure of $42,000 as the value of defendant’s
business. Plaintiff’s expert was unaware at the time of his evaluation that this same account was listed
separately as a marital asset. Defendant’s expert also agreed that the asset, as an account or as part of
defendant’s business, should not be counted twice.
The court valued defendant’s business at $41,000, which valuation was based, in part, on the
money in the business account, and ordered that the value be split on a 56/44 percent basis, with
plaintiff receiving the greater amount -- $22,960. Because plaintiff was awarded a percentage of the
value of defendant’s business, which included the money in the account, he cannot also again be
awarded a portion of the account as part of the marital estate. As such, the circuit court erred in
distributing this account twice.
Defendant next argues that the division of the marital estate on a 56/44 percent basis, with the
greater amount awarded to plaintiff, was inequitable. Again, we agree. Absent a binding agreement,
the goal in distributing marital assets in a divorce proceeding is to reach an equitable distribution of
property in light of all the circumstances. Byington v Byington, 224 Mich App 103, 114; 568 NW2d
141 (1997). Each spouse need not receive a mathematically equal share, but significant departures
from congruence must be explained clearly by the court. Knowles v Knowles, 185 Mich App 497,
501; 462 NW2d 777 (1990).
Although divisions of property are not governed by any set rules, certain principles
nonetheless apply. Among the equitable factors to be considered are the source of the
property; the parties’ contributions toward its acquisition, as well as to the general
marital estate; the duration of the marriage; the needs and circumstances of the parties;
their ages, health, life status, and earning abilities; the cause of the divorce, as well as
past relations and conduct between the parties; and general principles of equity.
[Hanaway v Hanaway, 208 Mich App 278, 292-293; 527 NW2d 792 (1995).]
Fault is a factor to be considered, but it is not the only factor. Sparks v Sparks, 440 Mich 141, 158;
485 NW2d 893 (1992). “[T]he trial court must consider all the relevant factors and not assign
disproportionate weight to any one circumstance.” Id. “[W]here any of the factors . . . are relevant to
the value of the property or to the needs of the parties, the trial court shall make specific findings of fact
regarding those factors.” Id. at 159.
In the present case, the circuit court determined that the majority of the marital estate was to be
split between the parties on a 56/44 percent basis, with plaintiff receiving the greater amount. In
reaching its decision, the court found that “fault is primarily in the wife’s conduct” and that, while plaintiff
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may have been insensitive and not as interested in the marriage as in other things, the court could not
“find anything significant there.” “[T]he division of the assets . . . ought to be 56 percent to the
husband, 46 [sic] percent to the wife because there is substantial marital fault.” The court failed to
address any of the other factors. “Marital misconduct is only one factor among many and should not be
dispositive.” Sparks, supra at 163. Moreover, in the present case, defendant maintained and the
evidence tended to show that the sexual relationship with her dance instructor did not begin until after
plaintiff had filed for divorce. It is improper to hold divorcing parties to a standard of morality or
behavior appropriate for marital partners. Knowles, supra at 500. We find that the division of the
marital estate was inequitable because it was based entirely on the issue of the alleged marital
misconduct of defendant, and the circuit court erred in failing to address the other delineated factors in
dividing the marital estate.
Finally, defendant argues that this matter should be assigned to a new judge on remand. A
motion to disqualify a judge must first be decided by the challenged judge. Homestead Devpt Co v
Holly Twp, 178 Mich App 239, 248; 443 NW2d 385 (1989). An appellant may not seek
disqualification of a judge for the first time on appeal. Id. Defendant did not preserve this issue for
appellate review, and we decline to address it.
Affirmed in part, reversed in part. We remand to the circuit court for reevaluation of its custody
award and division of the marital assets. On remand, the circuit court should consider up-to-date
information, including the children's current and reasonable preferences and any other changes in
circumstances arising since the original custody order. Fletcher, supra at 889. This Court does not
retain jurisdiction.
/s/ Henry William Saad
/s/ Myron H. Wahls
/s/ Hilda R. Gage
1
Defendant and her dance instructor have since married.
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