Jaikins v. Jaikins

*490 Per Curiam. Of the hitter and irreconcilable testimony given in this tragic divorce case, the least set forth in our reports the better for the minor children of the parties, particularly when they have grown to read and comprehend. Their interests surely are primary. At conclusion of a grimly contested 9-day hearing the trial judge denied a divorce to both parties on bill and cross-bill. Both appeal. Each insists that he or she should have a decree as prayed. The trial judge filed no findings of fact with respect to the issues presented by bill and cross-bill and contented himself with summary ruling set forth in the appendix hereof. Thus, hearing the case to arrive at the required “independent conclusion,” 1 we are left to weigh credibility and find facts as best an appellate court can from comparatively lifeless printed words. Urgent questions of child custody and visitation being foremost in the order of judicial concern, and this Court having decided after extended conference that a cause for divorce had been made out by the plaintiff husband, the following order was issued under date of June 13, 1963: “Ordered that the decree entered in this cause on March 5, 1962, insofar as same adjudges denial of a divorce to plaintiff according to the prayer of his bill, be and the same is hereby reversed. “Ordered further that this cause be and is remanded to the Oakland county circuit court for entry of a decree granting plaintiff an absolute divorce, and for further proceedings consistent with this order and such new decree, including prompt hearing *491 of all pending issues pertaining to custody and welfare of the minor children. “Aside from providing for a decree of divorce as directed above, the prime purpose of this order is that of restoring to the circuit court immediate jurisdiction over all unsettled matters including such as have been presented by pleadings filed since the original record was certified to this Court. “The final 2 sentences of the opinion of Vial v. Vial, 369 Mich 534, 538, are repeated and adopted for application to this case on remand. The Court’s opinion on review, now in the course of preparation, is due for release on the date of the Court’s next conference.” The first question, decided as above by our order of June 13th, was whether either party had made out a cause for divorce. This Court said, in Fansler v. Fansler, 344 Mich 569, 579, and we repeat for the case at hand, that: “CL 1948, §§ 552.7, 552.8 (Stat Ann §§ 25.87, 25-.88), provide that a divorce may be granted on the ground of extreme cruelty, but does not define extreme cruelty. In Brookhouse v. Brookhouse, 286 Mich 151, this Court said that grievances, to justify a decree, may be mental or physical, if they are of a sufficiently aggravated nature.” The Court has said further, in Hall v. Hall, 172 Mich 210, 213 (cited in Fansler, supra at 579), that “ ‘Extreme cruelty’ is an exceedingly elastic term”, and that “Those acts, or that conduct and language, which in some walks of life would pass as the ordinary incidents of the marital relation, might constitute, in other social phases, the very refinement of cruelty.” Unaided as we are by findings and conclusions disclosing what testimony to believe and what to disbelieve, it appears from print by reasonable preponderance that the defendant wife was guilty of *492 somé of the acts of cruelty testified to by the plaintiff husband and his witnesses and, in particular, that she did not on regular occasion treat the infant children and care personally for them as a mother should. That such may have been due to temporary or intermittent mental disturbance is possible, yet, as in Vial v. Vial, 369 Mich 534, it is factually con-cludable that the mother’s mental troubles were not of such nature as to render her incapable of comprehension and understanding of what she did in the way of acts and attitudes toward the children and her husband. 2 This is not to say that the plaintiff husband was blameless. It is to say that he appears to have been a good father, and that his comparative guilt as husband is outweighed by that of the wife. Here we apply the rule of compared fault, found in Boter v. Boter, 338 Mich 187, and cases cited therein. We are not unaware that a distantly seated appellate court should approach these findings with caution and full understanding of the fact that little children are quite a care, especially for their mother during the diaper years. Yet that court is not relieved from responsibility for tending well to the primary duty of judicial guardianship of small children, nor is it relieved from holding when it should that failure of parental due care of such children, coupled with some proof of mistreatment of them, is of itself evidence of statutory cruelty. The record before us indicatively suggests that such is the case and that the trial judge so far has awarded primary custody of the children to the father, rather than to the mother, on that account. *493 We have found, and now record such finding, thát the proof of unmarital attitude and unwifely action on the part of the defendant wife, combined with the proof of want of care and mistreatment by her of the children as fairly disclosed, constitutes a case of statutory cruelty and that a decree of divorce should have been entered below on the plaintiff’s bill. To be explicit for the purpose of precedent, the Court adopts the rule that mistreatment of children, if the other parent as here is guiltless thereof, constitutes some evidence of cruelty by the guilty party which justifies a divorce. For elaboration, see annotation, “Mistreatment of children as grounds for divorce,” 82 ALR2d 1361. The second question highlights the difficulty of consideration of custodial controversies by a court which has not even seen the witnesses and those whose independent advices are vitally needed, such as the friend of court and his aides. The trial judge was commendably concerned about the rights and well-being of the minor children. One, Mary Ann Margaret, was born in 1955. The other, James W. Jaikins III,' was born in 1956. Prior to full hearing below, and ultimately by the appealed decree, custody was awarded to the plaintiff father. The decree reads: “(b) That in the interests and welfare of the minor children, the court having determined and requested that defendant, Marian E. Jaikins, undergo psychiatric examination and evaluation, and she having failed and neglected to undergo such psychiatric examination and evaluation, the rights of visitation of defendant, Marian E. Jaikins, with the minor children, Mary Ann Jaikins and James W. Jaikins, III, be, and the same hereby is, limited to the premises of the father where the children now live, and such visitations shall be made on Tuesday and Friday of each week between the hours of 2 *494 o’clock p.m. and 5 o’clock p.m., and then with sufficient surveillance and supervision; that in the event of any dispute concerning the nature of this surveillance and supervision, the friend of the court may act as an arbiter thereof, subject only to the review thereof by this court in the case of any dissatisfaction with the arbiter’s ruling.” 3 During oral argument both counsel advised that the defendant wife, upon allegation of intervening and favorable new circumstances, has applied recently for transfer of custody to her. Her petition, duly answered by the plaintiff husband, pends before Judge Beer; hence our determination to restore immediate jurisdiction to his court in order that such new issue may be determined promptly with one polar rule in mind, the prima-facie right of the mother under the statute, qualified only by what upon searching proof and judicial meditation is best for 2 beset and bewildered youngsters. Their lives and environmental upbringing are due, as matters now appear, for control more or less permanently by not 1 but expectably many judicial orders. Such orders should be right, and they can be made right only by the exercise of extraordinary judicial care. 4 No ground has been shown for criticism of any of the trial judge’s past and current orders pertaining to custody and visitation. On that score we conclude he has done well with what, usually, becomes the most difficult of all judicial tasks. The case is remanded, per foregoing order, accompanied only by advices that the trial judge may, in his discretion, request the sitting with him of 1 or 2 additional judges of the sixth circuit to determine future ques *495 tions of custody and visitation, all in the interest of satisfying the parties, if satisfaction is possible, that judges who see and hear are better equipped to decide custodial and best interest questions than are judges of appellate courts. The foregoing opinion records our decision of June 13th with reasons for such decision. The question of costs and fees on appeal is left to the trial judge, as in Vial v. Vial, 369 Mich 534. Dethmers, Kelly, Kavanagh, Souris, Smith, and O’Hara, JJ., concurred. Carr, C. J., concurred in result. Black, J., took no part in the decision of this case. APPENDIX (Quotation from “Ruling of the Court”, made from the bench November 27, 1961) “Prom all the proofs, the circumstances of this case are such that it will not be discreet and proper to grant divorce on either the bill of complaint or the cross-bill of complaint. “The complete contradictions in the testimony have made it difficult to determine the facts. Neither party in my opinion has proven a cause of action for divorce by a fair preponderance of the evidence. Further, on the record before me, they have each contributed to their marital difficulties. “There are indications Mrs. Jaikins may not be well mentally. This is not cause for a divorce. The marriage contract under the laws of this State is for life, in sickness and health, for better or worse, unless statutory extreme cruelty is proven by a fair preponderance of the evidence. “Divorce is denied to each party. The bill and the cross-bill are dismissed.” Footnotes [1] “This being an equity ease we hear it de novo. Bankers Trust Company v. Bradfield, 324 Mich 116. While we give due consideration to the findings of the trial judge, nonetheless it is our duty to weigh the evidence and reach an independent conclusion. Hawthorne v. Dunn, 210 Mich 176, 179.” (Hitchman v. Township of Oakland, 329 Mich 331, 335, 336; followed in Prudential Ins. Co. v. Cusick, 369 Mich 269, 284.) [2] “Mental irresponsibility is not available as a defense to cruelty if the defendant was capable of comprehending and understanding the wrong he was committing. 9 RCL, Divorce and Separation, p 334, § 113.” Fansler v. Fansler, supra, at 579. See same rule, Gardner v. Gardner, 239 Mich 306, 309. [3] A modifying order was entered July 9, 1962. The order retains custody in favor of the father, subject only to right of the mother to take the children from the father’s home on limited occasions. [4] For latest enunciation in a like ease, see Ostergren v. Ostergren, 368 Mich 408.