JOHN LOUIS KRIEGER V KAREN MARILYN KRIEGER
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN LOUIS KRIEGER,
UNPUBLISHED
March 26, 1999
Plaintiff-Appellant,
v
No. 210139
Midland Circuit Court
LC No. 96-005471 DM
KAREN MARILYN KRIEGER,
Defendant-Appellee.
Before: Gage, P.J., and MacKenzie and White, JJ.
PER CURIAM.
Plaintiff appeals as of right from a divorce judgment, challenging the trial court's award of
physical custody of the parties' minor children to defendant. We affirm but remand.
I
The parties met in 1980, when defendant was in medical school, which she had begun in 1979.
Plaintiff is a graduate of a fine arts school and was initially employed in automotive design and then was
self-employed as an artist. The parties married in 1982, and had four children, Carolyn, Katherine,
Andrew, and Mary, all of whom were minors at the time of trial in 1997. This was plaintiff’s first
marriage and defendant’s third marriage. Plaintiff worked at home. Defendant took an eight-month
maternity leave from medical school when the parties’ first child, Carolyn, was born in May 1983, after
which plaintiff cared for Carolyn at the family home in Plymouth. The family moved to Ada when
defendant graduated from medical school in December 1984, so that defendant could pursue an
internship and residency. The parties’ second child, Katherine (Katie), was born in August 1985, at
which time defendant took a four or five-month maternity leave. Defendant then returned to medicine
and plaintiff cared for the two minor children. Defendant finished her internship in May 1986, and
began a psychiatric residency the next month. In December 1986, defendant reduced her participation
in the residency program to part-time. The parties’ third child, Andrew, was born in August 1987, and
in December of that year defendant left medicine and began staying at home with the three children.
-1
Apparently the parties’ relationship deteriorated when defendant abandoned her hospital
residency. Plaintiff continued to work at home and defendant started a daycare business out of the
home, which operated from 1988 through 1992 but was unsuccessful. Defendant also bred dogs.
In 1992, the family moved back to Plymouth, and defendant resumed her medical residency for
two months, but then dropped out. Defendant left the Plymouth home with the children in November
1992, to go to her mother and stepfather’s home. Soon after this incident, plaintiff filed for divorce in
Wayne County. Defendant and the children returned to the family home. In connection with the 1992
divorce action, Dr. Walter Ambinder, a psychologist and lawyer, was appointed by the court to
perform independent psychological examinations of the parties and children. Dr. Ambinder
recommended that the parties have joint physical and legal custody on a week on, week off basis, and
noted in his 1993 report that the children had positive feelings for plaintiff and wanted him to participate
in their lives, but unanimously expressed wanting to live with defendant. Dr. Ambinder, a rebuttal
witness at the instant trial, testified that he noted in 1993 that the children were told what to say and
think, that their responses to his inquiries were so similar and that they used language so sophisticated
for their age, that he concluded that they had been programmed. The parties later dropped the divorce
proceeding and attempted several reconciliations.
In November 1993, the family moved to Midland in order to be closer to defendant’s family.
The parties’ fourth child, Mary, was born in January 1994. Defendant worked outside the home as a
nurse, having reactivated her nursing license, and continued breeding dogs and started another daycare
business. She allowed her medical license to lapse.
Marital problems continued and plaintiff filed the instant complaint for divorce i May 1996,
n
seeking custody of the children. A temporary order entered in July 1996 provided for joint legal and
physical custody. In late 1996, the parties entered into a modified “nesting” arrangement pursuant to
which each had exclusive parenting time every other weekend, during which the other would leave the
home. The order provided for the appointment of an independent psychologist and for an evaluation by
the Friend of the Court.
The independent psychologists, Clawar and Rivlin of the Walden Counseling & Therapy Center
in Pennsylvania, issued a report concluding that defendant had alienated the children from plaintiff by
brainwashing them, and recommending that plaintiff have sole custody. They concluded that the parties
were equal on five of the statutory best interest factors, that plaintiff was favored on six factors, (d), (f),
(g), (j), (k), and (l), and that defendant was favored on one factor, (h).
The Friend of the Court evaluator, Alan Zoltowski, testified that plaintiff should be awarded full
custody of the children with limited visitation to defendant. He testified that he concluded that defendant
consciously alienated and brainwashed the children against plaintiff. Regarding the statutory best interest
factors, Zoltowski concluded that the parties were equal on eight factors, that plaintiff was favored on
three factors, (f), (g), and (j), and that defendant was favored on one factor, (h).
Trial in the instant case began in April 1997 and, after seven days, was adjourned in order to
allow defendant to retain an expert to perform a custody evaluation. Trial resumed in July 1997. Dr.
-2
Richard Gardner testified for the defense that he prepared a report and concluded that defendant was
not engaging in parental alienation, that defendant should be awarded custody of the four children, and
that the problems between the children and plaintiff were a result of plaintiff’s own neglect and abuse,
and plaintiff’s being schizophrenic, paranoid, delusional and psychotic. Dr. Gardner testified that he
concluded that defendant was favored under all of the statutory best interest factors.
The trial court awarded the parties joint legal custody and defendant physical custody. The trial
court found that there was an established custodial environment with defendant, but stated that
regardless of whether that was or was not the case, its final custody determination would not change.
The trial court concluded that the parties were equal on eight of the statutory best interest factors, that
defendant was favored on three factors, (a), (b), and (j), and that plaintiff was not favored on any
factor. The court determined that factor (l) was not applicable.
II
In reviewing a child custody matter, we must affirm the decision of the trial court unless its
factual findings are against the great weight of the evidence, its discretionary rulings demonstrate a
palpable abuse of discretion, or it has made a clear legal error regarding a major issue. MCL 722.28;
MSA 25.312(8); Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994). This Court
should affirm a trial court’s factual findings unless the evidence clearly preponderates in the opposite
direction. Fletcher, supra at 879.
We first note that this acrimonious case presents troubling circumstances, primarily marked
deleterious effects on the children.1 The testimony at the lengthy trial presented a rather clear picture
that for a significant period of time preceding the trial, apparently four years, there was ongoing conflict,
tension, and altercations between the parties, and between defendant and the children on one side, and
plaintiff on the other. There was substantial evidence that defendant had for some time severely
alienated the children from their father,2 and inappropriately involved the children in conflicts that should
have been confined to the parties alone.3 The testimony was clear that at the time the independent
evaluations were performed for the instant trial, the three oldest children expressed alarmingly and
strictly negative views of plaintiff4 and plaintiff’s family,5 while noting that defendant had virtually no
negative qualities. There was also substantial evidence that the children deliberately, and apparently
with defendant’s tacit or express approval, sabotaged plaintiff’s visitation time by acting up, challenging
and disrespecting him, and otherwise causing problems.6 At the same time, all the experts testified that
both parents contributed to the problems. Zoltowski testified, “Mother is to blame for it by alienating
these children from their father. Father has allowed it to go on. He’s to blame for allowing it to occur
the last four years.” Zoltowski, Rivlin and Ambinder noted that plaintiff had a history of passivity and
acquiescing to defendant that was problematic and had to be improved,7 while noting that defendant’s
conduct was conscious and egregious. With all that said, it is nevertheless clear from the record, and
undisputed, that the children uniformly expressed a very strong preference to live with defendant.
-3
III
Plaintiff first’s argument is that the trial court’s finding that an established custodial environment
existed with defendant was against the great weight of the evidence.
The existence of an established custodial environment is a question of fact for the trial court to
resolve on the basis of statutory criteria. Hayes v Hayes, 209 Mich App 385, 387-388; 532 NW2d
190 (1995). The statute provides:
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. [MCL 722.27(1)(c); MSA 25.312(7)(1)(c).]
The requisite custodial environment will depend on a "custodial relationship of a significant duration in
which [a child] was provided the parental care, discipline, love, guidance and attention appropriate to
his age and individual needs; an environment in both the physical and psychological sense in which the
relationship between the custodian and the child is marked by qualities of security, stability and
permanence." Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981). If the court finds an
established custodial environment, clear and convincing evidence is required to change custody; if not, a
change in custody may be made if supported by a preponderance of the evidence. Hayes, supra at
387.
While there is some force to plaintiff’s argument that the trial court erred in concluding that there
was an established custodial environment with defendant because the children did not naturally look to
defendant, to the exclusion of plaintiff, for guidance, discipline, the necessities of life and comfort, but
only because of defendant’s successful campaign to alienate the children from plaintiff, we agree with the
trial court that the standard employed did not determine the outcome in the instant case.
Plaintiff next argues that the trial court's findings on four of the best interest factors, (a), (b), (i)
and (j) of MCL 722.23; MSA 25.312(3), were against the great weight of the evidence. Although
plaintiff correctly observes that both independent experts concluded that the parties were equal on these
factors, the evidence did not clearly preponderate against the trial court's findings that defendant was
favored under factors (a), (b), and (i). Fletcher, supra at 879.
Regarding factor (a), the love, affection and other emotional ties existing between the parties
involved and the children, the evidence at trial was clear that defendant’s relationship with the children
was close, warm, and loving; and, there is no dispute that at the time of trial the emotional ties between
plaintiff and the children were extremely strained. Under these circumstances, we cannot conclude that
the trial court’s finding in defendant’s favor was against the great weight of the evidence.
Regarding factor (b), the capacity and disposition of the parties involved to give the children
love, affection, and guidance and continuation of the education and raising of the children in their religion
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or creed, if any, there was testimony that plaintiff was less warm and verbal than defendant, did not
communicate as much with the children as defendant, and was not always readily able to empathize with
the children. The evidence was clear that defendant was much more involved in the children’s school
activities than plaintiff. Although there was evidence that plaintiff was not always informed of the
children’s school activities, all of the children’s teachers called at trial testified that defendant regularly
attended the children’s functions and involved herself in the school, while they rarely saw or were
contacted by plaintiff. Under these circumstances, the trial court’s finding in defendant’s favor was not
against the great weight of the evidence.
Regarding factor (i), the reasonable preference of the child, the record is clear that the children
unanimously expressed a preference to live with defendant. The trial court’s finding in defendant’s favor
was not against the great weight of the evidence.
However, the great weight of the evidence favored plaintiff under factor (j), “[t]he willingness
and ability of each of the parties to facilitate and encourage a close and continuing parent-child
relationship between the child and the other parent or the child and the parents.” There was substantial
evidence that defendant over a period of several years alienated the children from plaintiff and plaintiff’s
family, spoke derisively of plaintiff to the children, and condoned or encouraged the children to make
plaintiff’s visitation time with them difficult and unpleasant. Although Dr. Ambinder testified that in 1993
he believed that each party had spoken negatively about the other to the children, and defendant
testified at trial that she wanted the children to have a relationship with their father, this evidence was
scant in comparison to the substantial evidence that defendant was not only unwilling or unable, or both,
to facilitate and encourage a close and continuing relationship with plaintiff, but actively sought to
alienate the children from plaintiff. The trial court’s finding that the parties were equal on this factor was
against the great weight of the evidence.
Plaintiff also argues that the trial court’s determination that defendant’s alienation of the children
was not relevant to its analysis of factors (a) and (i) was error. Plaintiff contends that the trial court
improperly ignored Zoltowski’s testimony that factors (a), (i), and (j) are interconnected, and that
because defendant did not facilitate a relationship between the children and plaintiff [factor (j)], factors
(a) and (i) (the love, affection and other emotional ties existing between the parties involved and the
child, and the reasonable preference of the child, respectively), were affected.
Although we agree with plaintiff that a parent’s deliberate and successful alienation of a child
from the other parent would influence the child’s preference regarding custody, and the love, affection
and other emotional ties between the other parent and the child, we cannot say, and plaintiff has
presented no authority to support that, the trial court was obliged to so conclude, and weigh the factors
equally, in this case. While it is clear that defendant had negatively affected the children’s feeling for
plaintiff, there was also evidence that defendant had a warmer, closer relationship with the children and
that the children expressed clear preferences for defendant when Ambinder did his first evaluation. A
court could deal with this type of circumstance by opting to give factor (j) greater weight than the other
factors, or could consider the circumstances under factor (l), “any other factor considered by the court
to be relevant.” We find no error in the courts weighing of factors (a), (b) and (i).
-5
Plaintiff further argues that the court gave inadequate weight to the experts’ testimony. Bearing
in mind that it was for the trial court to determine the weight to be accorded the expert testimony,
Phillips v Deihm, 213 Mich App 389, 401-402; 541 NW2d 566 (1995), we nevertheless agree that
the trial court gave inadequate weight to the import of the experts’ testimony in declining to order
counseling. While we do not substitute our judgment for the trial court’s judgment that some of the
experts appeared one-sided and lacking in objectivity, even taking this into account the great weight of
the evidence established that defendant consciously alienated the children from plaintiff and that the
situation was not healthy for the children.
It is against this very troubling backdrop that we conclude the award of custody to defendant
should be affirmed. In light of the level of negativity the children exhibited toward plaintiff, and the
children’s intense emotional attachment to defendant, who by all accounts is an excellent mother other
than with respect to her conduct regarding plaintiff, we affirm the trial court’s custody award because it
is questionable whether an award to plaintiff would have any significant chance of succeeding.8
Thus, we do not disturb the trial court’s ultimate determination to award physical custody to
defendant. However, we find it necessary to remand for the imposition of conditions and controls. The
court should require as a condition of custody that the parties (not necessarily together) and children
receive ongoing counseling.9 This condition should be imposed without regard to the parties’ ability to
agree upon a counselor or counselors, or the terms of the counseling.10 Further, plaintiff’s visitation
should be adequate to facilitate the repair of his relationship with the children, consistent with the parties’
counseling.
Affirmed, but remanded for proceedings consistent with this opinion.
jurisdiction.
We do not retain
/s/ Hilda R. Gage
/s/ Barbara B. MacKenzie
/s/ Helene N. White
1
Zoltowski testified while discussing factor (d), the length of time the child has lived in a stable,
satisfactory environment, that “Both parents are in the home and the children are doing poorly.” Dr.
Ambinder testified after having read the experts’ evaluations and viewed Dr. Gardner’s videotapes that
the children were doing much worse than they were in 1993, noting that in 1993 the children expressed
positive feelings for plaintiff and a desire to see him. Rivlin testified that Andrew was suffering from
depression and that Katie was full of rage and anger. See also ns 2, 3 and 5, infra.
2
Rivlin testified that “all the children are imbued with that notion that they can only love one parent
without receiving the nonacceptance, the lack of love from their mother as a punitive measure. At trial,
a letter from Carolyn to her mother was introduced that supports Rivlin’s testimony. The letter stated:
Dear Mom,
10/11 [1996]
-6
The night went okay. I decided to pack Mary’s clothes first so that dad couldn’t. I put
them in the bottom of my backpack, but then dad wanted to ‘see’ what I’d packed for
her, so he swiched [sic] them all for better clothes. Never to fear, though, as soon
as he was out of sight, I repacked the clothes I’d got first.
We left around 7:15 or so, and went to get gas, pop, and gum. Then dad had to get
some dipers [sic] and snaks [sic] from Meijer, and we had a ‘blast’ exploding our pops
in the car. Shake it, screw off the top, and watch it fizz!!! We figured if you can’t
trash the house, trash the car! There is also a good collection of gum, gum wrapers
[sic], spit balls, food crumbs, and spilled pop in there.
I think I’ve figured out why dad likes to go up here instead of staying at home. Here,
his Mommy waits on him hand and foot. There is no cleaning, no cooking, no laundry,
and you’ve got 3 adults to help gang up on the kids instead of just 1.
I realy [sic] hate it here. Didn’t you hear him say that he would give us some warning if
he decided to go somewhere if we would go without so much fuss? I distinctly
remember making that agreement and having a lot of reasurance [sic] because of it. I
guess it just teaches me that I can’t trust him.
Well, one day he’s going to learn that he can’t run away to his parent’s [sic] house
every time a responsibilty [sic] is throw [sic] on his sholders [sic].
I miss you soooooooo much, and I’ll be soooooo happy when we leave. It’s like he’s
sending us to the torcher [sic] chamber and saying, ‘Have a nice time!’ It doesn’t
work. I’ll make a big stink about leaving Sunday night. Please tell me about this
special arangement [sic] for holidays if it’s not one of his fantisy [sic] ‘court orders’
again.
Love ya, Carolyn [with drawing of a mouth and a heart with an arrow through it.]
[Emphasis added.]
Another example is the comments Andrew scribbled on a note that plaintiff had left for
defendant. Plaintiff’s note stated:
7/1/96
Karen
You need to tell me if you are not having dinner at the agreed to time. I have not seen
my [word crossed out and not legible] in days and need to know where they are. As
I’ve requested repeatedly in the past
John
-7
On the note Andrew wrote “butt” over the word that had been crossed out and wrote these
remarks on the note: “Do you write in pig-latten [sic]?”“Were [sic] did you learn english?” “Ya
know why ya haven’t seen your butt? Cause it’s in place of your head!” “Eat your butt
[illegible] we all ready [sic] ate! Yumm!”
Rivlin also testified that Andrew told her that he is mean to plaintiff and that, when she asked
Andrew whether he felt okay about mistreating his father, Andrew responded that his father
deserves it and that his mother means so much to him that his father should let him go.
Rivlin also testified that in one of the sessions in which she saw defendant and the children:
. . . rather than defend the father, Mrs. Krieger became part of the negative part of the
criticisms. She listened, and even though the children were extremely derogatory, rather
than say something positive, she entered into the conversation and helped the children
expand upon what they were already discussing in terms of the criticisms and the
negativity.
3
Rivlin testified that she noted from interviewing Carolyn that
She is imbued with marital history. She went back into historical information, stating
that her mother had wanted to get back with dad. She also said—stated that her
mother hadn’t believed that the father would be able to provide adequate care for the
children and subsequently that’s why she quit her job.
Karen [sic Carolyn] felt that her mother had moved back to Midland, as her mother had
stated in her interviews, so that the maternal grandmother could help with the child
rearing, rather than the father, because he was deficient in that area.
Rivlin further testified that Carolyn told her she and her mother were very close, that her mother
confides in her from time to time and had said to Carolyn: “How could I marry this guy and get myself
into this?” Carolyn reported to Rivlin that when she asked her mother “Well, why did you?” her mother
responded that the reason was to have children. Rivlin further noted that Carolyn had “a plethora of
legal knowledge” of the initial divorce filing.
See also, n 4, infra.
4
For example, Rivlin testified that Carolyn told her that her mother ran the washer empty after her father
washed his clothes. Carolyn told Rivlin that her father “smells funny” and Katie told Rivlin that her
father is unclean and that “things can happen when you’re unclean.” Carolyn also told Rivlin that her
mother served her father smaller portions and different food than the children receive, and that it was
because the family did not have finances to feed everyone sufficiently, that the children “get better stuff
because we’re growing children,” and that plaintiff was not paying for the food. Plaintiff had reported
both of these situations to Rivlin. Rivlin also testified that Carolyn confirmed another complaint of
plaintiff’s, that when he tries to go in the children’s rooms they tell him to get out.
-8
Zoltowski testified that the children told him that they sabotage the parenting time they spend with their
father by putting up a “big stink” when they have to go with him, hiding, and, according to Katie,
breaking the rules but not getting caught.
5
Rivlin testified:
Each of the children have a lot of negatives about the father’s side of the family. I was
really kind of taken aback because Katie described her grandmother as being very
kissy and very sassy, that she gets smothered with kisses when they go there, and I
understand some kids just don’t like that, but this was an extreme reaction to a
grandparent’s, you know, demonstration of affection, but this was characterized as
something that was bad, something to be criticized.
And, um, she sits in judgment, as an adult would, in terms of dialogue. She said that her
grandmother can only discuss the weather and pine needles. She told me that an uncle
is a smoker, that he has a sagging face. She said that there was another relative who
didn’t have a brilliant career. This is unusual, unusual choice of words from a child of
her age . . .
And, um, she said that her grandfather was a real jerk. . . .
All the kids state that they would prefer contact with the maternal side of the family.
Rivlin also testified that the children told her that they were disrespectful to their paternal
grandparents, that that was okay and that their mother does not care.
6
See ns 2 and 4, supra.
7
Zoltowski testified at trial, however, that plaintiff had greatly improved his ability to assert himself by
the time of trial. Plaintiff had apparently been in parent-training counseling.
8
This is in accord with Dr. Ambinder’s testimony, which differed from Rivlin’s and Zoltowski’s, that
although he believed that the children had been programmed, he also believed that it would be a mistake
to take the mother from the children, and that the same result could be accomplished by assuring that
plaintiff had more time with the children.
9
Zoltowski testified that the family needed therapy in order to move on and that defendant’s behavior
indicated she had psychological problems. Rivlin testified that the children should have therapy, by a
therapist who is experienced in custody matters and in parental alienation. Rivlin also recommended
therapy for the parties. Dr. Ambinder testified that Zoltowski’s observations were congruent with his
and that they both felt defendant would benefit from therapy, and that counseling for the children was
essential.
-9
10
The trial court expressed the view that counseling was strongly advised but declined to order that it
take place, instead inviting the parties’ input.
-10
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