MARY URISKO, UNPUBLISHED
November 12, 1999
Plaintiff-Appellant/Cross-Appellee,
v No. 214266
Wayne Circuit Court
RICHARD F. X. URISKO, Family Division
LC No. 96-624312 DM
Defendant-Appellee/Cross-
Appellant.
______________________________________________
MARY URISKO,
Plaintiff/Counterdefendant-
Appellant,
v No.214902
Wayne Circuit Court
RICHARD F. X. URISKO, Family Division
LC No. 96-624312 DM
Defendant/Counterplaintiff-
Appellee.
______________________________________________
Before: Hoekstra, P.J., and O'Connell and R. J. Danhof*, JJ.
PER CURIAM.
In Docket No. 214266, plaintiff, Mary Urisko, appeals as of right from
a judgment of divorce, challenging the trial court's determination of
custody. Defendant, Richard Urisko, has filed a cross-appeal challenging
the trial court's property distribution and award of attorney fees to
plaintiff. In Docket No. 214902, plaintiff appeals by leave granted from an
order modifying the judgment of divorce to allow defendant to change the
children's domicile. The appeals have been consolidated for this Court's
consideration. We affirm.
_______________________
* Former Court of Appeals judge, sitting on the Court of Appeals by
assignment.
-1-
Plaintiff first claims that the trial court erred in finding that no
established custodial environment existed and therefore failing to require
clear and convincing evidence that a change of custodial environment was in
the best interests of the children. MCL 722.27(1)(c); MSA 25.312(7)(1)(c).
The trial court's factual determination whether an established custodial
environment existed will be reversed only if it was against the great
weight of the evidence. Hayes v Hayes, 209 Mich App 385, 387-388; 532 NW2d
190 (1995); Fletcher v Fletcher, 447 Mich 871, 877-878; 526 NW2d 889
(1994); MCL 722.28; MSA 25.312(8). An established custodial environment
exists where "over an appreciable time the child naturally looks to the
custodian in that environment for guidance, discipline, the necessities of
life, and parental comfort." MCL 722.27(1)(c); MSA 25.312(7)(1)(c). Other
factors include "[t]he age of the child, the physical environment, and the
inclination of the custodian and the child as to permanency of the
relationship. . . ." Id.
We conclude that the court's finding that no established custodial
environment existed was not against the great weight of the evidence.
Defendant vacated the marital home approximately four months before the
divorce trial began, pursuant to a court order awarding temporary custody
of the children to plaintiff. Before this point, both parents occupied the
marital home and were involved in their children's lives. Moreover, even
after leaving the marital home, defendant remained actively involved with
the children. The children did not look to one parent, alone, for guidance,
discipline, the necessities of life, and parental comfort. Additionally,
there was no expectation of permanence in the children's placement with
plaintiff because of the upcoming custody trial. The children were keenly
aware, even though defendant had moved from the marital home, that their
custody was in dispute and that both parties were attempting to gain
custody of them. Uncertainty created by an upcoming custody trial can
prevent the development of an established custodial environment. Bowers v
Bowers (After Remand), 198 Mich App 320, 326; 497 NW2d 602 (1993). Under
these circumstances, the trial court's finding was not against the great
weight of the evidence.
Plaintiff also argues that the trial court erred in awarding physical
custody of the children to defendant. Again, we disagree. Custody disputes
are to be resolved in the best interests of the children. Id. at 324. The
factors the trial court must consider are set forth in MCL 722.23; MSA
25.312(3). According to MCL 722.28; MSA 25.312(8), we review the trial
court's findings regarding each statutory best-interest factor to determine
whether they are against the great weight of the evidence, and we review
the trial court's discretionary ruling on which parent is awarded custody
for an abuse of discretion. Fletcher, supra at 879-880. An abuse of
discretion exists where the ruling was "so palpably and grossly violative
of fact and logic that it evidences not the exercise of will but perversity
of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias." Spalding v Spalding, 355
Mich 382, 384-385; 94 NW2d 810 (1959); Fletcher, supra at 879-880. In this
case, the trial court carefully considered the best-interest factors, and,
after reviewing the voluminous record in this contentious divorce, we
conclude that the court's findings were not against the great weight of the
evidence because the evidence does not clearly preponderate toward the
opposite findings. Id. at 879. Additionally, we conclude that its decision
to award custody to defendant was not an abuse of discretion.
-2-
On cross-appeal, defendant claims that the trial court's property
division was inequitable. We disagree. The goal in distributing marital
assets in a divorce proceeding "is to reach an equitable division in light
of all the circumstances." Byington v Byington, 224 Mich App 103, 114; 568
NW2d 141 (1997). The factors the court should consider include the
following:
(1) duration of the marriage, (2) contributions of the parties to the
marital estate, (3) age of the parties, (4) health of the parties,
(5) life status of the parties, (6) necessities and circumstances of
the parties, (7) earning abilities of the parties, (8) past relations
and conduct of the parties, and (9) general principles of equity.
[Sparks v Sparks, 440 Mich 141, 159-160; 485 NW2d 893 (1992).]
On appeal, we review the trial court's factual findings for clear error.
Beason v Beason, 435 Mich 791, 805; 460 NW2d 207 (1990). "A finding is
clearly erroneous if the appellate court, on all the evidence, is left with
a definite and firm conviction that a mistake has been committed." Id. If
the factual findings are upheld, the dispositional ruling dividing the
marital estate "should be affirmed unless the appellate court is left with
the firm conviction that the division was inequitable." Sparks, supra at
152.
Defendant claims that the trial court should have found that
plaintiff was at fault for the breakdown of the marital relationship. Fault
is a valid consideration in matters of property division. Sparks, supra at
158. In this case, the trial court found that neither party was at fault
for the breakdown of the marital relationship. After reviewing the record,
we conclude that this finding was not clearly erroneous. In fact,
substantial evidence indicated that defendant played a significant role in
the breakdown of the marital relationship.
In light of the court's factual findings, we conclude that the
division of the marital estate was not inequitable. The two main assets,
the marital home and defendant's retirement plan, were divided equally
between the parties. However, the trial court deducted certain liabilities
from defendant's one-half share in the marital home. Those liabilities
included plaintiff's one-half share in defendant's retirement plan, a
second mortgage on the marital home which had been paid off by plaintiff,
and an award of attorney fees to plaintiff. These setoffs extinguished
defendant's share in the marital home, and the court awarded the home to
plaintiff. Defendant was awarded the entire retirement plan because
plaintiff's share was factored into the award of the home. We find nothing
inequitable in this distribution of the marital assets.
In addition to the division of assets, each party was required to
assume some of the parties' enormous financial debt. Defendant argues that
he should not have been required to assume certain tax liabilities.
However, the evidence indicated that these tax liabilities were a result of
defendant's failure to file tax returns on his income for a three-year
period. Plaintiff, after discovering that defendant had failed to file
income tax returns, filed her own individual tax returns and paid the
taxes, penalties, and interest due on her income for those three years.
Under these circumstances, we conclude that it was not inequitable for the
trial court to order defendant to be solely responsible for those debts.
Defendant also claims that he should not have been required to pay
two-thirds of the amount owed to a private school for the children's
tuition. The trial court ordered defendant to assume two-thirds of this
debt due to the disparity in the parties' incomes. The evidence indicated
that defendant's income was almost twice that of plaintiff. We
-3-
conclude that, in light of the court's factual findings, it was not
inequitable for the trial court to order defendant to pay two-thirds of
this debt.
Defendant also claims that the trial court erred in awarding
plaintiff $20,000 in attorney fees. "Attorney fees in a divorce action are
awarded only as necessary to enable a party to prosecute or defend a suit,
and this Court will not reverse the trial court's decision absent an abuse
of discretion." Hanaway v Hanaway, 208 Mich App 278, 298; 527 NW2d 792
(1995). Attorney fees may also be awarded when they are incurred "as a
result of the other party's unreasonable conduct in the course of the
litigation." Hawkins v Murphy, 222 Mich App 664, 669; 565 NW2d 674 (1997).
In this case, the evidence indicated that defendant earned approximately
twice as much as plaintiff and that both parties incurred massive legal
fees. The trial court found that the disparity in the parties' incomes
merited an award of attorney fees to plaintiff. The court awarded $20,000
in attorney fees, although plaintiff had asked the court to award
substantially more than this amount. Moreover, the trial court found that
plaintiff's legal costs were increased unnecessarily because defendant
failed to timely comply with certain court orders and, while acting in
propria persona, filed "numerous frivolous motions." Under these
circumstances, we find no abuse of discretion in the court's award of
attorney fees.
In her consolidated appeal, plaintiff argues that the trial court
erred in allowing defendant to move the children to South Carolina with
him. We review the trial court's decision whether to grant a motion for
change of domicile for an abuse of discretion. Overall v Overall, 203 Mich
App 450, 459; 512 NW2d 851 (1994). Michigan applies the D'Onofrio test,
taken from D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27
(1976), for determining whether to grant a motion for change of domicile.
Overall, supra at 458. Under this test, the trial court must consider the
following factors:
(1) whether the prospective move has the capacity to improve the
quality of life for both the custodial parent and the child; (2)
whether the move is inspired by the custodial parent's desire to
defeat or frustrate visitation by the noncustodial parent and whether
the custodial parent is likely to comply with the substitute
visitation orders where he or she is no longer subject to the
jurisdiction of the courts of this state; (3) the extent to which the
noncustodial parent, in resisting the move, is motivated by the
desire to secure a financial advantage in respect of a continuing
support obligation; and (4) the degree to which the court is
satisfied that there will be a realistic opportunity for visitation
in lieu of the weekly pattern which can provide an adequate basis for
preserving and fostering the parental relationship with the
noncustodial parent if removal is allowed. [Anderson v Anderson, 170
Mich App 305, 309; 427 NW2d 627 (1988).]
The moving party has the burden of demonstrating that removal is warranted
by a preponderance of the evidence. Overall, supra at 459.
In this case, the trial court's decision to allow defendant to take
the children to South Carolina was not an abuse of discretion. Contrary to
plaintiff's assertion, the record reflects that the trial court considered
the appropriate factors in making its determination. The trial court
concluded that the move to South Carolina would improve the general quality
of life for
-4-
defendant and the children. Plaintiff does not dispute that defendant was
offered employment in South Carolina that would generate a substantial
increase in income. The trial court also concluded that the move was not
intended to defeat or frustrate plaintiff's visitation. In fact, defendant
agreed to remain subject to the court's jurisdiction and agreed to pay for
a significant portion of the children's travel expenses for visitation with
plaintiff, indicating that it was unlikely that defendant was attempting to
frustrate visitation. Neither party challenges the court's holding that the
third factor was not applicable because plaintiff was not resisting the
move for financial advantage. Additionally, a visitation schedule was
fashioned that allowed plaintiff a realistic opportunity of preserving and
fostering a relationship with the children. We find no abuse of discretion
in the trial court's ruling.
Plaintiff claims that the trial court should have held an evidentiary
hearing before allowing the change of domicile. The trial court's decision
whether to hold an evidentiary hearing on a motion for change of domicile
is reviewed for an abuse of discretion. Bielawski v Bielawski, 137 Mich App
587, 592; 358 NW2d 383 (1984). The court should consider "whether there
exist contested factual questions that must be resolved before a court can
make an informed decision on whether or not to grant the motion." Id.
Plaintiff claimed that a question existed whether defendant knew about the
possibility of a job offer in South Carolina at the time of the original
custody determination. However, such a question does not affect the
application of the four D'Onofrio factors in this case. Additionally,
because it was not raised before the trial court, we do not review
plaintiff's claim that questions existed regarding the quality of the
schools in the district to which defendant was moving the children. We find
no abuse of discretion in the trial court's refusal to hold an evidentiary
hearing.
Affirmed.
/s/ Peter D. O'Connell
/s/ Robert J. Danhof
-5-
STATE OF MICHIGAN
COURT OF APPEALS
_________________________________
MARY URISKO, UNPUBLISHED
November 12, 1999
Plaintiff-Appellant/Cross-Appellee,
v No. 214266
Wayne Circuit Court
RICHARD F. X. URISKO, Family Division
LC No. 96-624312 DM
Defendant-Appellee/Cross-
Appellant.
______________________________________________
Before: Hoekstra, P.J., and O'Connell and R. J. Danhof*, JJ
HOEKSTRA, J. (dissenting).
I respectfully dissent from that portion of the majority opinion
affirming the trial court's custody determination. I would find that some
of the trial court's key findings were against the great weight of the
evidence, and, consequently, that the trial court abused its discretion in
granting custody of the children to defendant.
As my colleagues note in their majority opinion, custody disputes are
to be resolved according the children's best interest. Bowers v Bowers
(After Remand), 198 Mich App 320, 324; 497 NW2d 602 (1993). In reaching its
decision, the trial court must consider the factors set forth
_________________________
* Former Court of Appeals judge, sitting on the Court of Appeals by
assignment.
-1-
in MCL 722.23; MSA 25.312(3).1 We review the trial court's findings
regarding these factors to determine whether they are against the great
weight of the evidence, and we review its decision to grant custody for an
abuse of discretion. After reviewing the trial court's findings with
respect to some of these factors, I find its application of the factors to
be against the great weight of the evidence and her decision to grant
custody to the father to be an abuse of discretion.
The trial court's finding with respect to MCL 722.23(1); MSA
25.312(3)(1) is the most appalling and egregious of its errors. Under this
general provision, the trial court claimed that the mother had been
insensitive to her son's needs during the divorce. In short, the boy had
refused to travel to his grandparents' house for Christmas because it meant
that he would miss playing in a hockey game. Plaintiff, physically unable
to force the boy into the car, eventually called her father and brother in
Kalamazoo to help her deal with the situation. Although the boy did
eventually comply, plaintiff and her children did not arrive at the family
gathering until late that evening, ruining the holiday. As a punishment,
plaintiff forbade her son from playing in the rest of the tournament.
Defendant then undermined plaintiff's effort at discipline by taking the
couple's son to the hockey games. In recounting this incident, the trial
court stated:
However, this Court finds that mother's handling of the situation was
insensitive and her choice of discipline was disproportionate to the
incident. The father, on the other hand, has a greater ability to
communicate and persuade the children to correct their behaviors and
go along with what is expected of them.
In this case, the Court finds that any rational parent also
would have overruled mother's choice of discipline with respect to
this incident. Therefore, this factor favors father.
I cannot understand how the trial court reached this conclusion. The
mother's discipline was measured and appropriate, and the trial court's
claim that any rational parent would have found otherwise suggests to me an
inappropriate bias towards the defendant. Family, at Christmas time, is
always a higher priority than a hockey game. Not only was plaintiff's
discipline appropriate, the defendant's attempt to undermine plaintiff's
authority was further evidence of his immaturity and effort to alienate the
children from their mother. This incident weighs in plaintiff's favor, and
I simply cannot comprehend the trial court's decision to use it as a point
that favors defendant.
I also vehemently disagree with the trial court's application of MCL
722.23(d); MSA 25.312(3)(d), specifically as it pertains to the mother's
ability to maintain a stable and continuous environment for the children.
Defendant was unemployed at the time of the divorce, having apparently been
asked to leave his position with his law firm. Plaintiff, on the other
hand, was employed as a professor at a local college. Both parties
graduated from the same law school. However, the trial court characterizes
defendant as an "eminently qualified attorney," while claiming that
plaintiff lacks stability and continuity. As I read the record, plaintiff
admitted that she may have to seek a new, higher paying position now that
defendant was unemployed. I do not understand the trial court's conclusion
that this candor translates into a less stable situation for the children,
especially when the defendant is unemployed. The trial court appeared to
_______________________________
base its conclusion on defendant's professed intention to seek employment
in the city, but, of course,
-2-
nothing guaranteed that he would find a job locally. In fact, after several
months of looking, defendant could not find a job locally and eventually
took a position in South Carolina.
I have concerns about several other factors that, when considered in
light of the trial court's decisions on the matters discussed above, cause
me to question whether the decisions were against the great weight of the
evidence. For example, under MCL 722.23(e); MSA 25.312(3)(e), the trial
court found that defendant was better suited to maintain the permanence of
the family home. Given that defendant was unemployed and had failed to pay
his income taxes (which can result in a lien being placed on any home that
he does own), I find the trial court's emphasis on defendant's commitment
to remain in the area to be indefensible. I can see no reason to find that
this factor favors defendant. In fact, I maintain that it favors plaintiff.
Finally, the trial court's decision that MCL 722.23(g); MSA
25.312(3)(g) favored neither party also appears indefensible, based on this
record. Defendant's behavior is childish and immature, He has clearly
attempted to manipulate and alienate his children's affections for their
mother. I find his sudden increased involvement in the children's lives to
be a thinly veiled attempt to manipulate these proceedings, an effort which
appears to have worked.
Consequently, I would find that the trial court abused its discretion
in awarding custody to defendant.
/s/ Joel P. Hoekstra
1MCL 722.23; MSA 25.312(3) states:
Sec. 3. As used in this act, 'best interests of the child' means the
sum total of the following factors to be considered, evaluated, and
determined by the court:
(a) The love, affection, and other emotional ties existing between the
parties involved and the child.
(b) 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, if any.
(c) The capacity and disposition of the parties involved to provide
the child with food, clothing, medical care or other remedial care
recognized and permitted under the laws of this state in place of
medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed
custodial home or homes.
(f) The moral fitness of the parties involved.
-3-
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the
child to be of sufficient age to express preference.
(j) The 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.
(k) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
(l) Any other factor considered by the court to be relevant to a
particular child custody dispute.
-4-
|