DENISE D LACASSE V RICHARD G LACASSEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DENISE D. LaCASSE,
December 1, 1998
Ingham Circuit Court
LC No. 95-086704 DM
RICHARD G. LaCASSE,
Before: White, P.J., and Markman and Young, Jr., JJ.
Defendant appeals as of right from a judgment of divorce that, inter alia, awarded plaintiff sole
physical and legal custody of the parties’ two minor children. We affirm.
On appeal, defendant challenges the trial court’s custody award, claiming that the court’s
findings of fact on the statutory best interest factors, MCL 722.23; MSA 25.312(3), are against the
great weight of the evidence and that the court erred in awarding sole physical and legal custody of the
minor children to plaintiff. We disagree.
After carefully reviewing the record, we conclude that the trial court did not err in awarding
plaintiff sole physical and legal custody of the children. The record indicates that the trial court carefully
considered the factors relative to the best interests of the children set forth in MCL 722.23; MSA
25.312(3). The trial court’s findings of fact with respect to each of the factors in question are not
contrary to the great weight of the evidence, nor does the trial court’s ruling regarding the ultimate
custody decision constitute an abuse of discretion. See Fletcher v Fletcher, 447 Mich 871, 879; 526
NW2d 889 (1994); McCain v McCain, 229 Mich App 123, 131; 580 NW2d 485 (1998).
We also hold that the trial court did not err in determining that the minor children, then three and
five years of age, were of insufficient age to express a reasonable preference. Such a
determination was within the trial court’s discretion, Dempsey v Dempsey, 96 Mich App 276, 283;
292 NW2d 549 (1980), modified in part on other grounds 409 Mich 495 (1990), and we are not
convinced that the trial court abused its discretion.
We reject defendant’s claim that the trial court, without first holding an evidentiary hearing,
erred in entering the October 31, 1995, order that awarded temporary physical and legal custody of the
children to plaintiff. In light of the unique circumstances existing at the time of the order, this action was
authorized by MCL 722.27(1)(f); MSA 25.312(7)(1)(f), which provides that, for the best interests of
the children, the court may “[t]ake any other action considered to be necessary in a particular child
custody dispute.” Further, even if we were to conclude that the trial court erred, it would not compel us
to reverse the trial court’s final order awarding sole physical and legal custody to plaintiff because an
evidentiary hearing was eventually held and, as explained above, the trial court properly considered the
best interest factors and determined in its discretion that plaintiff should be awarded sole custody. Cf.
Mann v Mann, 190 Mich App 526, 533; 476 NW2d 439 (1991).
Next, defendant claims that the trial court abused its discretion in admitting the expert testimony
of Dr. Hobbs. We disagree. Dr. Hobbs’ testimony clearly satisfied the requirements of MRE 702.
Moreover, to the extent that it is recognized at all in Michigan, cf. Nelson v American Sterilizer Co
(On Remand), 223 Mich App 485, 491; 566 NW2d 671 (1997), we have substantial doubt that the
analysis contained in Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786;
125 L Ed 2d 469 (1993), regarding the admissibility of “novel scientific evidence,” has any application
here. Any objection defendant had to Dr. Hobbs’ testimony went to its weight, not its admissibility. In
any event, we would also find that any error in the admission of Dr. Hobbs’ testimony was harmless in
light of the abundance of other evidence supporting the trial court’s decision to award custody to
We also reject defendant’s claim that the trial court, in its dispositional ruling, made findings of
fact not supported by the evidence and that the property division was otherwise inequitable. This Court
reviews the trial court’s factual findings for clear error and will affirm the trial court’s dispositive ruling
unless we are left with the firm conviction that the division was inequitable. Sparks v Sparks, 440 Mich
141, 151; 485 NW2d 893 (1992); Draggoo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642
(1997). Having reviewed the record, we conclude that defendant has failed to establish that the trial
court’s factual findings, including its finding as to the valuation of defendant’s pension, were clearly
erroneous. Nor are we convinced that the property division was inequitable.
Lastly, we find no abuse of discretion in the trial court’s decision to award plaintiff $30,000 in
attorney fees. See Hawkins v Murphy, 222 Mich App 664, 669; 565 NW2d 674 (1997); Jansen v
Jansen, 205 Mich App 169, 173; 517 NW2d 275 (1994). Contrary to defendant’s claim that there
was “no showing that plaintiff required the award of fees to carry on her prosecution of the divorce,”
plaintiff specifically testified at trial that she “would not [have been] able to proceed if it were not for the
generosity of [her] attorneys.” She also testified that she was not in a position to pay her attorney fees.
Thus, plaintiff established that an award of attorney fees was necessary to allow her to carry on this
divorce action. Under these circumstances, a award of attorney fees was authorized. See MCR
/s/ Helene N. White
/s/ Stephen J. Markman
/s/ Robert P. Young, Jr.