MARLENE G BUDDE V DAVID L BUDDE
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STATE OF MICHIGAN
COURT OF APPEALS
MARLENE G. BUDDE,
UNPUBLISHED
July 17, 1998
Plaintiff/CounterdefendantAppellee,
v
No. 202749
St. Clair Circuit Court
LC No. 95-002550 DM
DAVID L. BUDDE,
`
Defendant/Counterplaintiff
Appellant.
Before: Wahls, P.J., and Holbrook, Jr. and Fitzgerald, JJ.
PER CURIAM.
Defendant appeals as of right a judgment of divorce, challenging the award of physical and legal
custody of the parties’ minor son to plaintiff. We affirm in part and remand.
Defendant first argues that in determining the best interests of the child, the trial court failed to
consider that plaintiff knowingly made false accusations of sexual abuse against defendant and involved
the minor child in those false accusations. However, the trial court found that there was no evidence
that plaintiff made knowingly false accusations. This finding was not against the great weight of the
evidence. MCL 722.28; MSA 25.312(8); York v Morofsky, 225 Mich App 333, 335; 571 NW2d
524 (1997); Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994). Although the
timing of plaintiff’s request for official investigations into defendant’s conduct raised some concern, there
was evidence that plaintiff was acting in her child’s best interests when she asked to have the matters
investigated.
Defendant also argues that in analyzing factor (b), MCL 722.23(b); MSA 25.312(3)(b), which
considers the capacity and disposition of the parties involved to give the child love, affection, and
guidance and to continue the education and raising of the child in his or her religion or creed, the trial
court was biased against defendant as a result of plaintiff’s allegations of sexual abuse. The record does
not support defendant’s contention. When the court discussed the sleeping arrangement in defendant’s
home, where the child shared a bed with defendant, its only concern was that defendant should not have
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fostered an improper emotional dependency and should have encouraged the minor child to sleep in his
own bed. The court did not intimate that this arrangement involved improper sexual conduct. Similarly,
when the court mentioned that the daughters of a neighbor and a daycare provider felt uncomfortable
with defendant, based on the observations of the parent, the court did so in the context of defendant’s
apparent inability to impose effective discipline and to set limits for the minor child. The court’s findings
regarding the parents’ abilities to impose discipline was supported by defendant’s own testimony
regarding an incident at a pool where defendant “couldn’t convince [the minor child] to allow me to do
or to get him to do anything else.” Given defendant’s own testimony that he was not able to discipline
the minor child effectively even when he attempted to do so, the trial court was justified in referring to
the testimony of the daycare provider who related an episode when the minor child was kicking his
father and continued to do so despite defendant’s request that he stop. The evidence that the trial court
relied on for its finding that this factor favored plaintiff was consistent with plaintiff’s testimony that
defendant set no limits for the minor child and relied on her to impose discipline. Moreover, the court
properly regarded the incident at the pool as an illustration of defendant’s lack of capacity and
disposition toward guiding his son’s behavior. The trial court’s findings were not contrary to the great
weight of the evidence. Fletcher, supra at 878.
Further, the court described the parties’ role in the minor child’s religious upbringing, relying on
uncontradicted evidence that plaintiff was the only parent involved in imparting religious education to the
minor child. The trial court did not explicitly draw a negative conclusion from defendant’s non
involvement in religious activities and did not give any indication that it was considering the merits of the
religious beliefs of the parties instead of the child’s best interests pursuant to MCL 722.23;
MSA 25.312(3). Fisher v Fisher, 118 Mich App 227, 234; 324 NW2d 582 (1982). Although the
court found that factor (b) favored plaintiff, we are unable to detect that this finding was based on a
judgment regarding the merits of the parties’ beliefs instead of an evaluation of the child’s best interests,
and conclude therefore that the court committed no clear legal error.
Defendant argues that the court chose to ignore highly questionable conduct by plaintiff in
deciding that the parties were equal with regard to factor (f), the moral fitness of the parties involved.
With regard to plaintiff’s moral fitness, the court mentioned that none of the charges that she had
brought with state regulatory and licensing agencies regarding defendant’s sexual abuse of his son had
been substantiated. The court found that the parties’ problems were essentially “adult, personal
problems which have not affected their ability to be moral parents with regard to their relationship with
the minor child.” Even though there was evidence that the minor child was questioned during the course
of the investigation into defendant’s alleged sexual abuse of him, the trial court was entitled to believe
that plaintiff acted upon her genuine concerns and in her child’s interests. Fletcher, supra at 886-887.
Although there was some ambiguity in plaintiff’s testimony, where she apparently first indicated that the
reason for her regulatory action against defendant was that defendant was seeking custody of the minor
child, she then denied flatly that her action was linked to defendant’s request for custody. It is
impossible to construe plaintiff’s ambiguous testimony as an admission that she was pursuing a vindictive
campaign against defendant merely to gain advantage in custody proceedings. There was no evidence
that plaintiff wanted to harm the minor child. Moreover, there was no evidence that plaintiff had falsely
told her fourteen-year-old son that defendant had been convicted of sexually abusing the minor child,
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but only evidence that this child had told a friend that he hated defendant because it had been proven in
court that defendant molested the minor child. The trial court’s finding that plaintiff was a moral parent
with regard to her relationship with the child was not against the great weight of the evidence.
Defendant argues that because the trial court failed to mention plaintiff’s false accusations of
sexual abuse against defendant under factor (g), the mental and physical health of the parties, it did not
consider that plaintiff’s behavior was indicative of a psychopath. The trial court mentioned that plaintiff
suffered from bulimia, and that plaintiff had counseling in the past. The court did not give much
credence to a family practitioner’s testimony that plaintiff had a “borderline personality disorder” since
the practitioner was not board certified in psychiatry and had not examined plaintiff in any professional
manner. Without any other evidence, defendant’s argument that the trial court should have considered
plaintiff’s allegations regarding defendant’s sexual abuse of their son to be a sign of mental illness has
little merit.
Defendant argues that the court’s failure to consider plaintiff’s false allegations of sexual abuse
under factor (j), the willingness and ability of each of the parties to facilitate and encourage a close
relationship with the other parent, and finding that this factor was more favorable to plaintiff, was against
the great weight of the evidence. The court considered plaintiff’s testimony that she wanted the child to
have a close loving relationship with his father and her actions of facilitating a temporary joint physical
custody arrangement with expansive parenting time for each parent. It found that despite defendant’s
anxiety that plaintiff would destroy his relationship with the child, no satisfactory evidence was presented
establishing “parental alienation syndrome.” Considering plaintiff’s actions and lack of anxiety over
defendant’s role in parenting, the court found that plaintiff’s attitude on this issue appeared controlled
and mature. Accordingly, the court found that this factor tended to be more favorable to plaintiff than
defendant. Since the evidence did not show that plaintiff’s unsubstantiated suspicions that defendant
sexually abused the child caused her to mar or discourage the relationship between defendant and the
child, the trial court’s finding was not against the great weight of the evidence.
Defendant argues that the court committed a clear legal error in focusing on defendant’s
concerns that plaintiff would not protect his relationship with the minor child, instead of defendant’s
conduct and capacity to facilitate a good relationship between plaintiff and the minor child. Given the
visitation arrangement that plaintiff allowed without a court order, the trial court could consider
defendant’s reservations that plaintiff would not continue to facilitate a relationship between him and the
minor child as unjustified. Although it failed to discuss all the evidence that could pertain to the parties’
willingness and ability to facilitate a relationship with the other parent, the trial court did not commit any
clear legal error, and satisfied the requirements of the court rules and case law. Fletcher, supra at 883.
Defendant next argues that many legal and factual errors were prejudicial to defendant and so
distorted the “best interests” findings that reversal is mandated. With regard to factor (a), the love,
affection, and other emotional ties existing between the parties involved and the child, the trial court
stated that its findings tended to be more favorable to plaintiff than to defendant. The court found that
although both parties loved their son, defendant’s closeness might border on the obsessive. This finding
was based on the daycare provider’s testimony that when the child was two and one-half years old and
defendant arrived at daycare to pick him up, defendant would not let him return to play with other
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children, but would demand that the child give him his total affection. Another basis was defendant’s
own testimony that he allowed the child to sleep with him instead of in his own room, first because he
thought this arrangement “fostered a sense of security” for his son, and later because of the noise of a
“rock tumbler” in the child’s bedroom. Although defendant argues that the daycare provider was not
qualified to characterize defendant’s relationship with his son as abnormal, and that her personal dislike
of defendant made her testimony untrustworthy, defendant does not refute her testimony that defendant
behaved in the way that she described. Similarly, defendant does not contest that at different times and
for different reasons, defendant allowed the child to sleep with him. The trial court’s concern was not,
as defendant argues, that the sleeping arrangement was indicative of a form of sexual abuse, but only
that it fostered an improper emotional dependency. This concern was supported by the opinion of a
licensed clinical psychologist that a shared sleeping arrangement could become a problem if it is “not
something that the parent works towards getting the child out of the habit of doing.” The trial court’s
finding was not against the great weight of the evidence. Moreover, since the trial court was entitled to
discuss emotional dependence of the child as part of the “love, affection, and other emotional ties
existing between the parties involved and the child,” the court did not commit clear legal error when it
made its findings regarding factor (a).
Defendant next argues that the trial court committed clear legal error in its evaluation of factor
(c), the capacity and disposition of the parties involved to provide the child with food, clothing, medical
care or other remedial care, and other material needs. Defendant argues that this factor does not
concern historical circumstances but present capacity and disposition.
Although defendant
demonstrated his capacity to provide for the minor child’s material needs, the trial court did not err in
taking into account the parties’ roles and their disposition to take care of the child’s material needs
during his whole life. Because disposition by definition involves an habitual tendency or inclination,
customary arrangements could form part of the court’s assessment. The trial court did not commit clear
legal error when it found that this factor tended to be more favorable to plaintiff than defendant.
Defendant next argues that the trial court committed clear legal and factual error in its evaluation
of factor (e), the permanence, as a family unit, of the existing or proposed custodial home or homes,
finding that this factor favored plaintiff. Defendant argues that the trial court should have focused on the
next twelve years of the minor child’s life, and should not have premised its finding on what it implicitly
found to be a short-term situation, namely the presence of the child’s half-brother in plaintiff’s home.
The evidence showed that these half-brothers had a close relationship. Even though the half-brother
was eight years older than the parties’ child, and it was therefore to be anticipated that he would leave
home while the minor child was growing up, this could be seen as a normal change that would not
disqualify plaintiff’s family unit from being described as stable and having a measure of permanence.
Ireland v Smith, 451 Mich 457, 465; 547 NW2d 686 (1996). Given the flux in the affairs of most
families’ lives and the normal changes that are bound to occur, an evaluation of permanence necessarily
has to start with the present situation. The trial court did not err in considering the “potentially
detrimental effects of physically severing [the] bond” that existed between the half-siblings, Wiechmann
v Wiechmann, 212 Mich App 436, 439-440; 538 NW2d 57 (1995), and refusing to look too far
down the road in making its evaluation of permanence.
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Defendant next argues that the trial court committed clear legal and factual error in its
determination that factor (k), concerning domestic violence, favored plaintiff. The trial court found that
the minor child had been exposed to domestic violence, and that the child was aware of an incident
when defendant threw plaintiff to the floor. There was evidence of other incidents of domestic violence.
Even though the trial court did not mention all the incidents, it apparently considered the one incident
that occurred in the child’s presence to be the most serious. In doing so, the court did not commit clear
legal error, nor were its findings against the great weight of the evidence.
Defendant also argues that the trial court committed clear legal and factual error in its
consideration of factor (l). The trial court gave a broad characterization of the demeanor and attitude of
the witnesses including their credibility and willingness to be forthright or evasive. While the trial court
found that plaintiff was being candid and willing to accommodate defendant within reason, the court
found defendant to be defiant, and “dedicated to fighting a battle that was to be a fight to the bitter
end.” The evidence showed that defendant expressed fears that if he was not awarded custody his
relationship with the child would become increasingly distant and that the child would withdraw from him
because plaintiff might relocate. Defendant’s fears were based on plaintiff’s allegedly abusive character
and her alleged threats that she was going to raise the minor child by herself. Since the trial court acted
within its mandate when it observed defendant and assessed the witness’ credibility, it committed no
legal error when it drew conclusions. Fletcher, supra at 889-890. Moreover, since defendant offered
no proof regarding his fears that plaintiff would relocate or destroy his relationship with the minor child,
the court properly relied on evidence that plaintiff had accommodated d
efendant by allowing him
extensive parenting time with the minor child in finding that defendant’s fears were unfounded. Although
plaintiff testified that she liked to be in control, that she automatically assumed most of the responsibility
for the minor child’s needs because defendant did not participate or show concern or interest, and that
she could not recall an incident where she compromised with defendant over the minor child’s welfare,
the court’s statement that plaintiff “was willing to accommodate defendant within reason” was
supported by the lack of evidence to show that plaintiff ever interfered with defendant’s extensive
parenting time. The trial court’s findings were not against the great weight of the evidence.
Also, the trial court was entitled to consider a Friend of the Court report, considering that it
reached its own conclusions. Truitt v Truitt, 172 Mich App 38, 43; 431 NW2d 454 (1988). Here,
the language used by the trial court indicates that the court considered the Friend of the Court
recommendation but arrived at an independent conclusion based on its own hearing.
Defendant next argues that the trial court committed clear legal error in denying defendant his
statutory right to access the child’s psychological records. The court, relying on Thames v Thames,
191 Mich App 299, 303; 477 NW2d 496 (1991), appointed a guardian ad litem to consult with the
social worker and to report back to the court regarding whether it would be in the best interests of the
child to grant defendant’s request to waive the privilege on behalf of the child. Following the
recommendation of the guardian ad litem that the court should exercise its discretion to prevent the
social worker from revealing the case file, the court agreed to look at the file of the case worker and to
consider it in an in camera review. However, defendant would not stipulate to allow the report to be
read in camera without some opportunity for objection or rebuttal.
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The Court’s ruling in Thames left room for a judge to exercise some discretion when it had to
make such a decision. Considering that in child custody cases the overwhelmingly predominant factor is
the welfare of the child, Harper v Harper, 199 Mich App 409, 417; 502 NW2d 731 (1993), we
conclude that the judge in the instant case did not abuse his discretion when he sought to protect the
minor child from the probable negative effect of a breach of confidence with the therapist and made the
offer of an in camera inspection of the minor child’s counseling records.
Defendant next argues that given plaintiff’s history of mental illness, false accusations of sexual
abuse, admitted perpetration of unprovoked domestic violence, and conduct that her own expert felt
would affect and perhaps destroy the minor child’s relationship with defendant, the trial court abused its
discretion in failing to order her to submit to a psychological evaluation. The trial court concluded that
orders for psychological testing were “not normally the type of orders that are entered in divorce
actions, and unless the parties agree to joint psychological testing this court will not order them.”
The court rule governing mental examination, MCR 3.311, provides as follows:
(A) Order for Examination. When the mental or physical condition (including
the blood group) of a party, or of a person in the custody or under the legal control of a
party, is in controversy, the court in which the action is pending may order the party to
submit to a physical or mental or blood examination by a physician (or other
appropriate professional) or to produce for examination the person in the party’s
custody or legal control. The order may be entered only on motion for good cause with
notice to the person to be examined and to all parties. The order must specify the time,
place, manner, conditions, and scope of the examination and the person or persons by
whom it is to be made, and may provide that the attorney for the person to be examined
may be present at the examination.
In Brewster v Martin Marietta Aluminum Sales, Inc, 107 Mich App 639, 643; 309 NW2d 687
(1981), this Court held that the rule is applicable to all civil actions. However, since the trial court
concluded that the rule was not applicable to a sex discrimination case, this Court found that the trial
court did not reach a decision on whether the supervisor’s mental condition was actually placed in
controversy or whether good cause existed for granting the plaintiff’s requested examination. Since the
issue had not been decided by the trial court, this Court declined to consider it, id. at 646, but reversed
the decision of the trial court, and remanded it “for determination of whether plaintiff has established that
[the supervisor’s] mental condition is in controversy and whether good cause existed for granting the
mental examination.” Id. at 647.
Here, the trial court similarly did not decide the issue. Therefore, the matter is remanded to the
trial court for a determination of whether defendant established that plaintiff’s mental condition was in
controversy and whether good cause existed for granting the mental examination. If on remand
defendant is able to make such a showing, the custody determination will have to be reevaluated.1
Affirmed in part and remanded. Jurisdiction is not retained.
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/s/ Myron H. Wahls
/s/ Donald E. Holbrook, Jr.
/s/ E. Thomas Fitzgerald
1
The trial court need not conduct an entirely new hearing, but may reevaluate the factors and the
determination in light of any new evidence.
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