SHEILA MARIE GENDICH V TERENCE ARTHUR R WHITEMAN
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STATE OF MICHIGAN
COURT OF APPEALS
SHEILA MARIE GENDICH,
UNPUBLISHED
June 29, 2010
Plaintiff-Appellee,
v
No. 293139
Clinton Circuit Court
LC No. 99-013367-DM
TERENCE ARTHUR R. WHITEMAN,
Defendant-Appellant.
Before: DAVIS, P.J., AND DONOFRIO AND STEPHENS, JJ.
STEPHENS, J. (concurring)
While I concur with the holding of the majority I write separately to address the issue of
whether the trial court impermissibly considered evidence of the dismissed criminal charges
under factor (f). The majority correctly cites Berger v Berger, 277 Mich App 700, 712-713; 747
NW2d 336 (2008), in holding that a court may consider any questionable illegal or offensive
behavior under section (f). Defendant’s conviction was set aside. He made no admission of
immoral or illegal conduct. There was no evidence presented in the custody dispute that he had
engaged in the heinous behavior of which he had been accused. Thus there was no proof of
illegal, immoral or offensive behavior. Berger drew its’ essence regarding the scope of evidence
appropriate under factor (f) from, Fletcher v Fletcher, 447 Mich 871; 526 NW2d 889 (1994). In
quoting Fletcher, Berger explained that “under factor f, the issue is not who is the morally
superior adult, but rather ‘the parties' relative fitness to provide for their child, given the moral
disposition of each party as demonstrated by individual conduct.’” Berger, 277 Mich App at
713, quoting Fletcher, 447 Mich at 887.
At best, defendant admitted that his daughter was alienated from him, due in part to the
absence associated with the criminal proceedings. A court-compelled absence does not equate to
immoral or offensive behavior. Likewise, while the trial court was reasonably appalled that
defendant testified that he did not remember the litany of criminal charges that kept him in jail
for a year, that lack of candor or memory was not evidence that could be appropriately
considered under factor (f).
Although the trial court erroneously considered the criminal charges when evaluating
factor (f), defendant is not entitled to relief. Had the trial court not improperly applied factor (f)
to the facts in this case, there was still more than sufficient competent evidence upon which to
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make the custodial ruling made in this case. Consequently, I agree with the outcome reached by
the majority.
/s/ Cynthia Diane Stephens
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