01/19/93 ESTHER DEAL A/K/A ESTHER GUTOW v. ALAN

[1]     

COURT OF APPEALS OF MICHIGAN

[2]     

Nos. 126553

[3]     

1993.MI.42 <http://www.versuslaw.com>, 496 N.W.2d 403, 197 Mich. App. 739

[4]     

January 19, 1993

[5]     

ESTHER DEAL A/K/A ESTHER GUTOW, PLAINTIFF-APPELLEE PLAINTIFF-APPELLANT,
v.
ALAN DEAL, DEFENDANT-APPELLANT DEFENDANT APPELLEE.

[6]     

Before: Corrigan, P.j., and Michael J. Kelly and Griffin, JJ.

[7]     

The opinion of the court was delivered by: Kelly

[8]     

MICHAEL J. KELLY, J.

[9]     

In Docket No. 126553 plaintiff, Esther Deal appeals as of right from the February 20, 1990, order of the Oakland Circuit Court modifying the terms of the parties' default judgment of divorce with regard to visitation and child support. In Docket No. 149033 defendant, Alan Deal appeals as of right from the January 15, 1992, order of the Oakland Circuit Court holding him in contempt of court for failure to pay child support. Defendant was sentenced to thirty days in jail to be suspended upon payment of $1,000. These matters have been consolidated on appeal.

[10]    

Plaintiff and defendant, Orthodox Jews, were married in 1982. Three children were born of the marriage. The parties began to experience marital difficulties, and then permanently separated in 1986. Thereafter, defendant discontinued the Orthodox life-style of his upbringing. Plaintiff filed for divorce early in 1988.

[11]    

On December 23, 1988, a default judgment of divorce was entered. Plaintiff was awarded custody of the minor children and defendant was awarded "reasonable" visitation. In April, 1989, plaintiff remarried and subsequently moved to Cleveland, Ohio with the minor children and her new husband. Defendant then filed a petition to modify the visitation and child support provisions of the judgment of divorce. An evidentiary hearing was held, and the trial court entered an order modifying visitation and child support. In particular, the order provided that defendant was to have weekend visitation once a month from Friday to Sunday at his residence in Michigan, that he was to have an additional Sunday visitation per month in Ohio, that he was to have visitation on certain religious holidays and over Father's day weekend. The order also reduced defendant's child support obligation from $198 per week to $150 per week.

[12]    

First, we hold that plaintiff has not preserved the issue of enforcement of the parties' Orthodox Jewish marriage contract. Plaintiff failed to request specific performance of the contract of marriage in the court below and the contract itself was not introduced into evidence and is not a part of the record before us. Issues raised for the first time on appeal are not subject to appellate review. People v Malone, 193 Mich App 366; 483 NW2d 470 (1992).

[13]    

Plaintiff next argues that the trial court erred in modifying visitation. Plaintiff argues that the modified visitation arrangement is not in the children's best interest because it will interfere with observance of the Sabbath. The child custody act of 1970, MCL 722.21 et seq ; MSA 25.312(1) et seq., governs child custody disputes between parents. Our review of a visitation order is de novo, but we will not reverse the order unless the trial court made findings of fact against the great weight of the evidence, committed a palpable abuse of discretion, or committed a clear legal error. Booth v Booth, 194 Mich App 284, 292; NW2d (1992); Thames v Thames, 191 Mich App 299, 305; 477 NW2d 496 (1991). *fn1 Visitation shall be granted if it is in the best interests of the child and in a frequency, duration, and type reasonably calculated to promote a strong relationship between the parent and the child. MCL 722.27a(1); MSA 25.312(7a)(1); Booth, (supra) at 292. The controlling factor in determining visitation rights is the best interests of the child. Thames, (supra) at 305-306.

[14]    

Review of the record convinces us that the trial court did not abuse its discretion in modifying defendant's visitation days and dates. Restriction of visitation to Sundays only would not have provided enough time for the children to be with defendant, and permitting the children to stay with defendant until Monday morning would have disrupted the children's schooling as well as defendant's work schedule. Although psychologist Kirzner did testify that it would be preferable to leave the children with plaintiff on the Sabbath, he admitted that the failure to do so would not result in harm to the children. We believe that the trial court's order is in the best interests of the children and is not an abuse of discretion.

[15]    

Plaintiff next argues that the trial court erred in modifying the child support provision of the judgment of divorce. We disagree.

[16]    

A trial court may modify a child support order upon a showing of a change in circumstances justifying modification. MCL 552.17; MSA 25.97; Edwards v Edwards, 192 Mich App 559, 562; 481 NW2d 769 (1992). Modification of child support is within the sound discretion of the trial court. The trial court's findings of fact are reviewed under the clearly erroneous standard, but the court's ultimate Disposition is subject to de novo review. *fn2 Id. This Court will not reverse that Disposition unless we are convinced we would have reached a different result in the trial court's place. Id.

[17]    

After reviewing the record in this matter, we are not convinced we would have reached a different result in the trial court's place, and, therefore, affirm the modification of defendant's child support obligation.

[18]    

Next, on the cross appeal we find no merit in defendant's argument that he was denied due process at the hearing on plaintiff's motion for an order to show cause why defendant continued to be in arrears in child support payments. Defendant had notice of the nature of the proceedings, an opportunity to be heard in a meaningful time and manner by an impartial decision maker. Klco v Dynamic Train Corp., 192 Mich App 39, 42-43; 480 NW2d 596 (1991).

[19]    

Defendant next argues that the trial court abused its discretion by issuing the January 15, 1992, commitment order. We disagree.

[20]    

The issuance of an order of contempt is in the sound discretion of the trial court and will be reviewed for an abuse of discretion. Wells v Wells, 144 Mich App 722, 732; 375 NW2d 800 (1985). An order of commitment shall be entered only if other remedies appear unlikely to correct the payer's failure or refusal to pay support. MCL 552.637; MSA 25.164(37); Mead v Batchlor, 435 Mich 480, 505 (1990).

[21]    

After reviewing the record in this matter, we do not find that the trial court abused its discretion in entering the contempt order. Defendant promptly paid the $1,000 alternative and escaped confinement. To the extent that the order exceeded four weeks of payments under the support order (MCL 552.633; MSA , we find defendant husband's counsel admitted his ability to pay and in fact represented that her client was making the regular support payments. For any other purpose the matter is moot. There was a subsequent show cause in May of 1992, and we decline to redirect the trial court to a prior proceeding.

[22]    

Affirmed.

[23]    

Michael J. Kelly

[24]    

Maura D. Corrigan

[25]    

Richard A. Griffin

 


 

Opinion Footnotes

 


[26]    

*fn1 The term "de novo" as applied in review proceedings has been the subject of recent treatment by the Supreme Court in the case of Department of Civil Rights ex rel Johnson v Silver Dollar Cafe, 441 Mich 110; NW2d (1992).

[27]    

*fn2 Whether that standard now encompasses the reviewing court's power to substitute its judgment is problematical under Department of Civil Rights, (supra) , p. 6: "To give meaning to the term 'de novo', we must hold that a circuit court, in reviewing a decision of the Civil Rights Commission, may substitute its assessment for the findings, Conclusion, and decision of the Civil Rights Commission." Query: Does analogous review of a decision of the circuit court by the Court of Appeals permit similar displacement? Since we do not have a different assessment of the findings here, we decline to explore that issue.

19930119

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