Opinion
Docket No. 91250.
Decided December 15, 1986.
Kathleen Buckley, for plaintiff.
This Court is once again called upon to intervene in the parties' continuing custody/visitation dispute over their child, Paul Kasem. The parties were married on September 16, 1972, and divorced on February 14, 1978. One child, Paul, was born of the marriage on May 3, 1973. The judgment of divorce granted custody to plaintiff and visitation rights to defendant. Thereafter, plaintiff sought an increase in child support and defendant sought a change in custody. The trial court entered an order on May 23, 1983, which, inter alia, modified the divorce judgment to provide for joint custody, with defendant having physical custody during the summer months and plaintiff having physical custody during the school year.
Plaintiff took an appeal to this Court and we reversed, concluding that there was an established custodial environment with plaintiff and that defendant had failed to meet his burden of establishing, by clear and convincing evidence, that a change in custody was in the best interests of the child. Arndt v. Kasem, 135 Mich. App. 252; 353 N.W.2d 497 (1984).
Following our decision in Arndt on July 30, 1984, the trial court rendered an opinion increasing defendant's visitation from four weeks to eight weeks during the summer.
Plaintiff, thereafter, praeciped the visitation issue for trial. Defendant moved for either sole or joint custody and plaintiff moved for increased child support. Testimony was taken in May, 1985. The circuit court rendered an opinion from the bench which left physical custody with plaintiff, but which granted joint legal custody. Defendant's visitation remained at eight weeks during the summer.
We should note that at all times defendant had visitation during the remainder of the year based upon alternate weekends and holidays. However, we direct our attention to the summer visitation as that is the object of the current dispute.
I
The first issue for our consideration is whether the trial court erred in granting joint legal custody. MCL 722.26a(1); MSA 25.312(6a)(1) provides that the trial court shall consider an award of joint custody at the request of either party and state on the record the reasons for granting or denying the request. See also Wilcox v. Wilcox (On Remand), 108 Mich. App. 488; 310 N.W.2d 434 (1981). MCL 722.26a(1); MSA 25.312(6a)(1) provides as follows:
In custody disputes between parents, the parents shall be advised of joint custody. At the request of either parent, the court shall consider an award of joint custody, and shall state on the record the reasons for granting or denying a request. In other cases joint custody may be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors.
(a) The factors enumerated in section 3 [MCL 722.23; MSA 25.312(3)].
(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
We have carefully reviewed the trial court's December 10, 1985, opinion from the bench and cannot conclude that the trial court complied with the requirement that it state the reasons for its decision on the record. The bench opinion is devoid of any consideration of the best-interest factors. Therefore, a reversal is required. Currey v. Currey, 109 Mich. App. 111, 117-118; 310 N.W.2d 913 (1981).
While a remand is appropriate where it is necessary to supplement the record with the trial court's findings on the various best-interest factors, Speers v. Speers, 108 Mich. App. 543, 545; 310 N.W.2d 455 (1981), that remedy is not available in this case inasmuch as the circuit judge who heard this matter is now deceased. Accordingly, we remand for a new hearing, obviously in front of a different circuit judge. Petrey v. Petrey, 127 Mich. App. 577, 580; 339 N.W.2d 226 (1983).
II
Next, we consider whether the trial court also erred in modifying visitation rights absent a showing that such a modification was in the best interests of the child. At least one panel of this Court has held that a trial court must evaluate each of the best-interest factors and make definite findings of fact and conclusions of law in visitation disputes. Dowd v. Dowd, 97 Mich. App. 276, 278-279; 293 N.W.2d 797 (1980). However, another panel rejected such a stringent requirement for visitation cases in Hoffman v. Hoffman, 119 Mich. App. 79, 83; 326 N.W.2d 136 (1982). The Hoffman Court required only that a trial court, in visitation dispute cases, make findings of fact and conclusions of law only on those issues which are contested. Id.
It is unnecessary for us to decide between the two standards, as the trial court's bench opinion was inadequate under either. Not only does the bench opinion fail to address all of the statutory factors, it also fails to address the issues in contest. While this might ordinarily be cured by a remand for a new opinion by the trial judge, his death renders it necessary to conduct a new hearing. Petrey, supra.
III
Finally, we address the trial court's failure to grant plaintiff's motion for increased child support. The trial court failed to address this issue at all. Rather than attempt to reach a conclusion ourselves, in view of the necessity for remand on other issues, we direct the trial court to reconsider plaintiff's motion for increased child support on remand.
Since we dispose of this appeal on the ground of the trial court's failure to make sufficient findings of fact and conclusions of law, and we have not rendered an opinion on the merits of the trial court's determination, we direct that, in order to provide at least minimal stability to the child until this matter is resolved, the trial court's order of March 3, 1986, implementing the December 10, 1985, opinion shall remain in force until the trial court enters an order on remand. However, we direct the trial court to conduct a hearing on remand and issue its decision forthwith.
Reversed and remanded for further proceedings consistent with this opinion. Jurisdiction is not retained. No costs.