author: D. C. Riley, P.J.

text:
    PEOPLE v GREENWOOD
    Docket No. 78-402.
    Submitted November 21, 1978, at Detroit.
    Decided December 5, 1978.
    Robert Greenwood was charged with arson in the burning of a building. On the date set for trial, defense counsel moved to suppress any evidence gathered from the arson investigation because of the failure to procure a search warrant. The evidence was ordered suppressed by the Detroit Recorder’s Court, Donald L. Hobson, J. As a result of this ruling, the prosecution indicated its inability to proceed and the case was dismissed without prejudice. From this dismissal, the people appeal by leave granted. Held:

    The evidence was improperly suppressed. The defendant did not have standing to challenge the admissibility of this evidence because 1) the defendant had no rights whatsoever in the searched premises and therefore no reasonable expectation of privacy, 2) there was no showing that the defendant was on the grounds at the time of or after the fire, 3) the defendant himself admitted that he did not own or occupy the grounds on which the blaze occurred, and 4) the defendant was not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence.
    Reversed, and remanded for trial.
    1. Searches and Seizures — Search Warrants — Fire-Damaged Premises — Expectation of Privacy.
    Absent consent to the search or abandonment of the premises, a warrant is required in order for police to re-enter and search an area once a fire has been extinguished and the fire fighters have left the premises, because, even where occupancy is impossible, an expectation of privacy is warranted since private effects often remain on the fire-damaged premises.

      References for Points in Headnotes

       68 Am Jur 2d, Searches and Seizures §§ 35, 36.

       5 Am Jur 2d, Appeal and Error §§ 601, 602.
    29 Am Jur 2d, Evidence § 418.

       29 Am Jur 2d, Evidence § 418.
    Nature of interest in or connection with, premises searched as affecting standing to attack legality of search. 78 ALR2d 246.
    Interest in property as requisite of accused’s standing to raise question of constitutionality of search and seizure. 4 L Ed 2d 1999.

       5 Am Jur 2d, Arson and Related Offenses §§ 11,12.

      2. Appeal and Error — Evidence—Suppression of Evidence — Standing.
    The Court of Appeals, in determining whether a trial court properly granted a defendant’s motion to suppress evidence, must necessarily consider the prefatory issue of whether the defendant had the requisite standing from which to voice his objection to the admission of the allegedly unconstitutional evidence.
    3. Searches and Seizures — Standing—Premises Searched — Proprietary or Possessory Interest — Offense Charged — Expectation of Privacy.
    A defendant has no standing to contest a search and seizure where the defendant 1) was not on the premises at the time of the contested search and seizure, 2) alleged no proprietary or possessory interest in the premises, and 3) was not charged with an offense that includes, as an essential element, possession of the seized evidence at the time of the contested search and seizure; to contest a search a defendant need only meet one of the three qualifications; however, the defendant must normally demonstrate some legitimate interest in the premises searched or the objects seized and such inquiry has characteristically turned on the scope of the defendant’s reasonable expectation of privacy.
    4. Arson — Building—Real Property — Instrumentality to Set Fire —Statutes.
    The crime of willfully or maliciously burning a building requires 1) the burning of any building or other real property, or the contents therefore, and 2) that the fire was willfully or maliciously set; possession of any instrumentality used to set the fire is not an essential element of the crime (MCL 750.73; MSA 28.268).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert J. Sheiko, Assistant Prosecuting Attorney, for the people.

      Vesta Svenson, for defendant on appeal.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. C. Riley, P.J.

Defendant Robert Greenwood was charged with the burning of a building during the early morning hours of July 4, 1977, contrary to MCL 750.73; MSA 28.268. At the preliminary examination, Lieutenant James Szafran, an investigator for the City of Detroit, testified that he arrived to examine the area approximately 8 hours after the fire department responded to the blaze. During his exploration, Szafran found and collected evidence of the recent burning, and also took photographs of the scene. It was his conclusion that the fire was of an incendiary nature.

On the date set for trial, defense counsel moved to suppress any evidence gathered from the arson investigation because of the failure to procure a search warrant. Over the prosecution’s objection that defendant lacked standing to complain of the search, the court below, on the authority of People v Tyler, 399 Mich 564; 250 NW2d 467 (1977), ordered the evidence suppressed. As a result of this ruling, the prosecution indicated its inability to proceed and the case was dismissed without prejudice. From this dismissal the people appeal.

In Tyler, supra, the Michigan Supreme Court held that absent consent or abandonment, a warrant is required in order to re-enter and search an area once a fire has been extinguished and the fire fighters have left the premises. Tyler was subsequently appealed to the United States Supreme Court which substantially affirmed the previous decision. Michigan v Tyler, 436 US 499; 98 S Ct 1942; 56 L Ed 2d 486 (1978).

In determining whether the trial court properly granted defendant’s motion to suppress we must necessarily consider the prefatory issue of whether defendant had the requisite standing from which to voice his objection to the admission of the alleged unconstitutional evidence. Neither the United States Supreme Court Tyler opinion, nor the Michigan Supreme Court decision, specifically addressed this issue. However, those opinions spoke of protecting the expectation of privacy of persons who lived in their homes or worked in offices after those premises were burned. Michigan v Tyler, supra, 436 US at 505-506, People v Tyler, supra, at 582-583. Even where occupancy was impossible the United States Supreme Court stated that an expectation of privacy is warranted since "private effects often remain on the fire-damaged premises”. Michigan v Tyler, supra, 436 US at 505. The Court consistently referred to "occupants” and "owners” as being those persons protected by the warrantless investigation of fire officials. Michigan v Tyler, supra, 436 US at 508-509.

The test for determining standing is summarized in Brown v United States, 411 US 223, 229; 93 S Ct 1565; 36 L Ed 2d 208 (1973), as follows:

"[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.”

A defendant need only qualify under one of the three sections to contest a search. People v Ray Jackson, 71 Mich App 487, 489; 247 NW2d 382 (1976), People v Morgan Clark, 68 Mich App 674, 692; 243 NW2d 914 (1976) (Noble, J., dissenting). Yet, as Brown supra, indicates, defendant must normally demonstrate some legitimate interest in the premises searched or the objects seized, United States v Hunt, 505 F2d 931, 939-940 (CA 5, 1974), cert den, 421 US 975; 95 S Ct 1974; 44 L Ed 2d 466 (1975), and such inquiry has characteristically turned on the scope of defendant’s "reasonable expectations of privacy”. Hunt, supra, at 940. See Katz v United States, 389 US 347; 88 S Ct 507; 19 L Ed 2d 576 (1967).

Michigan decisions have underscored the necessity that a defendant come within the ambit of these traditionally recognized connections with the territory subject to the intrusion. Thus, for example, in Jackson, supra, the Court, citing Brown, held that defendant lacked standing to object to the search of another’s car subsequent to the arrest of defendant and out of his presence. Similarly, in People v Scott, 44 Mich App 462; 205 NW2d 291 (1973), defendant did not have standing to contest an invalid search of his girl-friend’s residence. See also People v Hale, 7 Mich App 127; 151 NW2d 240 (1967), wherein it was determined that the accused could not object to a search and seizure of property owned by another.

Turning to the case at bar, we hold that defendant lacked the requisite standing to protest the introduction at trial of any incriminating evidence gathered during the post-fire investigation. From the information revealed in the transcript, defendant had no rights whatsoever in the searched premises and therefore no reasonable expectation of privacy. There is no showing that defendant was on the grounds at the time of or after the fire. Defendant himself admitted that he did not own or occupy the grounds on which the blaze occurred. Finally, defendant was not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence.

The evidence being properly admissible, the lower court erred in ordering its suppression. We therefore remand the case to the court below for trial on the charged offense. Because of our holding, we need not reach the question of whether the investigative entry, 8 hours subsequent to the fire, constituted an illegal search and seizure for lack of a valid warrant.

Reversed and remanded.

       MCL 750.73; MSA 28.268 requires: (1) the burning of any building or other real property, or the contents thereof, and (2) that the fire was willfully or maliciously set. Possession of any instrumentality used to set the fire is not an essential element of the charged crime.


source: Caselaw Access Project

author: J. H. Vander Wal, J. Beasley, P.J.

license: Public Domain

text:
    PEOPLE v BROOKS
    Docket No. 78-739.
    Submitted October 17, 1978, at Detroit.
    Decided December 5, 1978.
    Leave to appeal applied for.
    Van Luster Brooks was arrested and charged with carrying a pistol in a motor vehicle. He was bound over for trial in Recorder’s Court of Detroit, James T. Kallman, J. A motion to quash the information was granted by Donald L. Hobson, J. The people appeal by leave granted. The question on appeal is whether or not the trial court erred in holding that the defendant’s taxicab was a place of business within the meaning of the concealed weapons statute, and therefore excepted from the coverage of the statute. Held:

    A taxicab is not a place of business within the meaning of the concealed weapons statute.
    Reversed and remanded.
    Beasley, J., dissented. He would hold that for purposes of the concealed weapons statute a validly licensed taxicab is a place of business.
    Opinion of the Court
    1. Weapons — Concealed Weapons — Criminal Liability — Statutes— Statutory Exceptions — Place of Business — Taxicabs.
    The concealed weapons statute provides that a person may carry a concealed weapon in his dwelling house or place of business or on other land possessed by him; the place of business referred to is land; therefore, where a licensed taxicab operator was carrying a pistol in his cab at the time of his arrest, he is guilty of a criminal offense, because a taxicab is not a place of business within the meaning of the statute (MCL 750.227; MSA 28.424).
    Dissent by Beasley, J.
    2. Weapons — Concealed Weapons — Place of Business — Taxicabs— Criminal Liability — Exemptions.

      A validly licensed taxicab is a place of business for purposes of the concealed weapons statute; therefore, a licensed taxicab

      operator is exempt from criminal liability under the statute if arrested while he is carrying a pistol in his cab.

      Reference for Points in Headnotes

       79 Am Jur 2d, Weapons and Firearms §§ 18, 26.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and E. Gail Willhardt, Assistant Prosecuting Attorney, for the people.

      Ashford, Cannon & Lumumba, for defendant.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   J. H. Vander Wal, J.

The defendant was arrested on July 4, 1977, and charged with carrying a pistol in a motor vehicle in violation of MCL 750.227; MSA 28.424. At a preliminary examination before visiting Recorder’s Court Judge James T. Kallman on July 13, 1977, the defendant was bound over for trial. A motion to quash the information was filed on September 19, 1977. At a hearing on the motion before Recorder’s Court Judge Donald L. Hobson on September 27, 1977, the motion was granted and the case was dismissed. The prosecutor was granted leave to appeal by an order of this Court dated April 7, 1978.

Both parties agree that the defendant, a licensed taxicab operator, was carrying a pistol in his taxicab at the time of his arrest on July 4, 1977. The only question on appeal is whether or not the trial court erred in holding that the defendant’s taxicab was a place of business within the meaning of the concealed weapons statute, and therefore excepted from the coverage of the statute.

MCL 750.227; MSA 28.424 provides in part (emphasis added):

" * * * a person who shall carry a pistol concealed on or about his person, or, whether concealed or otherwise, in a vehicle operated or occupied by him, except in his dwelling house or place of business or on other land possessed by him, without a license to carry the pistol as provided by law or if licensed, carrying in a place or manner inconsistent with any restrictions upon such license, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years, or by fine of not more than $2,500.00.”

In People v Bailey, 10 Mich App 636, 639-640; 160 NW2d 380 (1968), we stated: " * * * The basic intent of the legislature * * * was that weapons should not be carried where they might be used to take lives.” Accord, People v Johnnie W Jones, 12 Mich App 293, 295-296; 162 NW2d 847 (1968), lv den, 383 Mich 771 (1969).

And in People v Clark, 21 Mich App 712, 716; 176 NW2d 427 (1970), after reviewing the general intent of the statute, we concluded:

" * * * The purpose of the exemptions was to allow persons to defend those areas in which they have a possessory interest. This is the clear import of the phrase 'possessed by him’ which modifies the three areas set forth in the statute.”

It is important to note that we read the three exceptions together to determine their meaning and scope. See also, People v Gatt, 77 Mich App 310; 258 NW2d 212 (1977), lv den, 402 Mich 837 (1977).

With these Michigan cases and principles as a backdrop, we turn to United States v Waters, 73 F Supp 72 (D DC, 1947), cause certified, 175 F2d 340 (1948), app dis, 335 US 869; 69 S Ct 168; 93 L Ed 413 (1948). In Waters, the Federal district court applied a statute which prohibited the carrying of a pistol without a license "except in his dwelling house or place of business or on other land possessed by him” to the carrying of a pistol in a taxicab. The defendant claimed the taxi was his place of business, but the Court concluded:

" * * * The words 'other land possessed by him’ which immediately follow the words 'place of business’ compel the view that the place of business referred to is land. Any interpretation to the contrary would give to the word 'other’ as applied to the word 'land’ no significance whatever. Defendant’s taxicab, therefore, was not a 'place of business’ as the term is used in the statute.” Waters, supra, 73.

We agree with the reasoning in Waters; defendant’s taxicab is not a place of business as the term is used in the statute. Consequently, the trial court erred in quashing the information.

Reversed and remanded.

R. B. Burns, J., concurred.

Beasley, P.J.

(dissenting). I respectfully dissent. I do not find the interpretation placed on a somewhat similar statute in 1948 by the Federal district court for the District of Columbia either persuasive or binding.

The statute excepts three categories:

" * * * in his dwelling house or place of business or on other land possessed by him.”

Granted that the language is somewhat ambiguous and that drawing the parameters of the exceptions is difficult, I would find that for purposes of the concealed weapons statute a validly licensed taxicab is a place of business.

Therefore, I would affirm.

        United States v Waters, 73 F Supp 72 (D DC, 1947), cause certified, 175 F2d 340 (1948), app dis, 335 US 869; 69 S Ct 168; 93 L Ed 413 (1948).

       MCL 750.227; MSA 28.424.

        People v Gatt, 77 Mich App 310; 258 NW2d 212 (1977), lv den, 402 Mich 837 (1977).


author:
J. H. Gillis, P.J.
      R. M. Maher, J.

text:
    TROXLER v TROXLER
    Docket No. 78-2115.
    Submitted October 4, 1978, at Escanaba.
    Decided December 5, 1978.
    Plaintiff Diane V. Troxler, now known as Diane V. Healy, was granted a divorce from defendant Dennis R. Troxler by the Schoolcraft Circuit Court, William F. Hood, J. The judgment provided that plaintiff have the care, custody, control and supervision of the parties’ three children. Defendant filed a petition for change of custody. The court ordered the judgment of divorce modified to change custody of the children from plaintiff to defendant. Plaintiff appeals. Held:

    1. The trial court made specific findings on the factors which make up the best interests of the child as required by the Child Custody Act.
    2. The trial court did not make erroneous findings nor commit a palpable abuse of discretion which would justify reversal.
    3. The evidence supports the trial court’s findings that it is in the best interests of the children to award custody to their father.
    Affirmed.
    R. M. Maher, J., dissented and would hold that the trial court properly considered the factors for determining whether the best interests of the children would be served by changing custody but failed to find by clear and convincing evidence that the best interests of the children required a change of custody. The failure to apply the clear and convincing evidence standard was clear legal error on the major issue of burden of proof.
    The conditions at the time of a hearing for a change of custody should be the focus of the court’s inquiry, not the past conduct of the parties. The evidence in favor of each party was evenly balanced, therefore, no change of custody should have been granted.

      References for Points in Headnotes

       4 Am Jur 2d, Appeal and Error § 136.
    42 Am Jur 2d, Infants § 43.

       42 Am Jur 2d, Infants § 43.

       42 Am Jur 2d, Infants §§ 56, 57.
    59 Am Jur 2d, Parent and Child §§ 31, 32.

      Opinion op the Court
    1. Parent and Child — Appeal and Error — Child Custody Act— Custody Disputes — Findings op Fact — Abuse of Discretion— Legal Error — Statutes.
    The Child Custody Act provides that all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).
    2. Parent and Child — Best Interests op Child — Child Custody Disputes — Statutes.
    The best interests of the child shall control in a custody dispute between the child’s parents (MCL 722.25; MSA 25.312[5]).
    3. Parent and Child — Child Custody Act — Change op Custody— Clear and Convincing Evidence — Best Interests op Child— Statutes.
    The Child Custody Act provides that a court shall not change the established custody of a child unless clear and convincing evidence is presented that the change is in the best interests of the child (MCL 722.27[c]; MSA 25.312[7][c]).
    4. Parent and Child — Appeal and Error — Child Custody — Change op Custody — Evidence—Child’s Best Interest — Factors— Statutes.
    Custody of the parties’ children was properly changed from the mother to the father where the evidence supports the court’s findings in favor of the father, and where the court made specific findings on the factors which make up the best interests of the children, finding in favor of the father on three of the factors and that the parties were equal as to the remaining factors (MCL 722.23; MSA 25.312[3]).
    Dissent by R. M. Maher, J.
    5. Parent and Child — Appeal and Error — Child Custody Disputes —Change of Custody — Proper Standard — Best Interests op Child — Clear and Convincing Evidence — Clear Legal Error — Statutes.

      A trial court failed to apply the proper standard in determining that a change of custody was appropriate, in a child custody dispute, where the court properly considered the factors for

      determining whether the best interests of the child would be served by changing custody but failed to find by clear and convincing evidence that the best interests of the child required a change of custody; failure to apply the clear and convicing evidence standard was clear legal error on the major issue of burden of proof (MCL 722.23, 722.27, 722.28; MSA 25.312[3], 25.312[7], 25.312[8j).

    6. Parent and Child — Trial—Motions—Child Custody Disputes — • Change op Custody — Focus op Inquiry — Present Conditions —Past Conduct.

      A trial court, in considering a motion for a change of custody, should focus its inquiry on the conditions as they are at the time of the hearing, not on the past conduct of the parties.

    Upper Peninsula Legal Services, Inc. (by Steven L. Pence), for plaintiff.

      Nebel & Revord, for defendant.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   J. H. Gillis, P.J.

On March 30, 1977, Judge William F. Hood granted plaintiff a judgment of divorce from defendant. That judgment provided in part that plaintiff have the care, custody, control and supervision of the parties’ three children, Todd, Scott and Brad. On August 11, 1977, defendant filed a petition to change custody of the children from plaintiff to himself. After a hearing on the petition on September 9, 1977, Judge Hood filed an order modifying the judgment of divorce thereby giving custody of the three children to defendant.

Plaintiff later filed a motion to set aside that order modifying the judgment of divorce and plaintiffs motion was granted since the court lacked jurisdiction for certain technical reasons. Defendant then filed a second petition for change of custody and a hearing was held on that petition on May 9, 1978. Again, Judge Hood acted favorably to defendant and ordered a change of custody from plaintiff to defendant. It is from this final order that plaintiff appeals as of right.

The guidelines for appellate review of custody decisions is set forth in the Child Custody Act of 1970, MCL 722.28; MSA 25.312(8):

"To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.”

See also Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

When a custody dispute is between parents, the best interests of the child shall control. MCL 722.25; MSA 25.312(5). The act also provides that the court shall not change the established custody of the child unless clear and convincing evidence is presented that the change is in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c), Parrott v Parrott, 53 Mich App 635; 220 NW2d 176 (1974).

The modification of the divorce judgment changed the custody of the children from the mother to the father. As is required by the act, the trial court made specific findings on the factors which make up the "best interests of the child”. MCL 722.23; MSA 25.312(3). Our review of the record convinces us that the trial court did not make erroneous findings nor commit a palpable abuse of discretion which would justify reversal.

The trial court found specifically in favor of the father on three of the factors; stable environment, permanence, as a family unit, of the home, and moral fitness. As to the remaining factors the trial court found the parties were equal.

In addition to that evidence cited by the trial court, we note other testimony which supports the conclusion that it is clearly in the best interests of the children to award custody to defendant. The children were doing well in school and were receiving proper care in their father’s home according to an investigator from the friend of the court. The friend of the court also recommended that the children stay with their father.

There was testimony from plaintiff that her new husband (Healy) had struck her and "pretty near knocked her teeth out”. Testimony also disclosed that this was Healy’s third marriage.

Defendant sent plaintiff a blank check while she was cohabiting with Healy, prior to their marriage, so she could move herself and the children into a place of their own. This testimony was supplied by the plaintiff.

We believe this evidence supports the trial court’s findings in favor of the defendant. In addition, the trial court found in favor of neither party on the "preference of the child” factor. There was testimony from both plaintiff and defendant that the children preferred to live with their father. We would be inclined to find in favor of the father as to this factor in addition to those so found by the trial court.

We are convinced that it is in the best interests of the children to award custody to their father. Therefore, the order of the lower court granting custody to defendant is affirmed.

Affirmed. Costs to appellee.

D. E. Holbrook, J., concurred.

R. M. Maher, J.

(dissenting). I must dissent. It is clear from a review of the entire record that the court below failed to apply the proper standard for determining whether a change of custody is appropriate. That standard is set out in MCL 722.27; MSA 25.312(7):

"If a child custody dispute has been submitted to a circuit court as an original action under this act or has arisen incidentally from other actions therein or orders or judgments thereof, for the best interests of the child the court may:
"(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches the age of 18 years or in exceptional circumstances, until the child reaches majority. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.” (Emphasis added.)

At the time of the court’s decision, permanent custody was in plaintiff, the earlier order changing custody having been set aside for lack of jurisdiction. In order for the court below to amend the judgment of divorce to change custody from plaintiff to defendant, he was required to find by clear and convincing evidence that a change of custody was in the best interests of the children, Berman v Berman, 84 Mich App 740; 270 NW2d 680 (1978), Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977). Nowhere in the lower court’s findings was this standard even recognized, much less applied. The court below properly considered the factors set out in MCL 722.23; MSA 25.312(3) in determining whether the best interests of the children would be served by changing custody. However, it failed to find by clear and convincing evidence that the best interests of the children required a change of custody. Instead, the court obviously found at most a preponderance of evidence supporting a change.

The court considered the parents equally qualified with regard to emotional ties with the children; capacity to give love, affection and guidance; capacity to provide for material needs; mental and physical health; home, school and community record of the children; and preference of the children. In the matter of moral fitness, the court considered defendant more fit solely because plaintiff had lived with her present husband before their marriage. The court for the same reason considered defendant’s home a more stable and satisfactory environment. The court apparently gave no weight to evidence of defendant’s history of drinking and violent conduct. Additionally, the court found that defendant’s home was the more permanent family unit, because plaintiff planned to move to a new town and because her present husband had not come to court to testify in the custody hearing. After weighing all these factors, the court concluded:

"When I put the sum of them together, the Court is satisfied it is in the best interests of the children that they remain in the present environment and in the present home and that it is in their best interest to do so.
"So an order may be entered granting the defendant husband the permanent custody of the three children.”

This Court is required to review de novo the record in a custody case, and to affirm the trial court’s judgment unless we find that it is against the great weight of the evidence, constitutes an abuse of discretion or resulted from clear legal error on a major issue, MCL 722.28; MSA 25.312(8), Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), Berman v Berman, supra. Failure to apply the clear and convincing evidence standard was clear legal error on the major issue of burden of proof.

Additionally, review of the trial court’s findings reveals that its decision was based largely on the fact that plaintiff had lived with her present husband prior to their marriage, rather than on the situation as it existed at the time of the hearing on the petition for change of custody. It is the conditions at the time of the hearing which should be the focus of the court’s inquiry, not past conduct of the parties, see Feldman v Feldman, 55 Mich App 147; 222 NW2d 2 (1974), Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). See also Hilbert v Hilbert, 57 Mich App 247; 225 NW2d 697 (1974), Roudabush v Roudabush, 62 Mich App 391; 233 NW2d 596 (1975).

I have reviewed the record of the hearing below and find that the clear and convincing evidence standard was not met by the evidence presented. In my opinion the evidence in favor of each party .was evenly balanced, and, therefore, no change of custody should have been granted, Outcalt v Outcalt, 40 Mich App 392; 198 NW2d 779 (1972).

I would reverse.


author: Per Curiam:

text:
    PEOPLE v DUNLAP PEOPLE v WILLIAMS
    Docket Nos. 77-1364, 77-2161.
    Submitted October 5, 1978, at Detroit.
    Decided December 6, 1978.
    Theresa Dunlap, Harold Williams, and two others were charged with assault with intent to commit murder. Dunlap was convicted as charged, Williams was convicted of assault with intent to do great bodily harm less than murder, a third codefendant was convicted of the crime charged and the fourth was acquitted, Recorder’s Court of Detroit, Samuel H. Olsen, J. Defendants Dunlap and Williams appeal separately, each claiming that their trial should have been severed from that of the codefendants. The Court of Appeals consolidated the cases for hearing and decision. Held:

    1. Defendant Dunlap’s failure to move in the trial court for a severance precludes appellate review of the issue, because there is no showing in the record of a miscarriage of justice as to Dunlap resulting from the joint trial.
    2. Defendant Williams did move for a severance before any evidence was presented, alleging that a codefendant’s testimony was going to exculpate that codefendant at Williams’ expense. Williams did not, however, substantiate this allegation in any manner, thereby waiving his objection to the joinder. In addition, there was no prejudice to Williams as the jury apparently totally disbelieved the codefendant’s testimony.
    Affirmed.
    1. Criminal Law — Trial—Severance—Appeal and Error — Miscarriage of Justice.
    A codefendant’s failure to move for a severance of his trial precludes review of that issue except to remedy a miscarriage of justice.
    References for Points in Headnotes

       75 Am Jur 2d, Trial § 9.

       75 Am Jur 2d, Trial §§ 17, 20-24.

       75 Am Jur 2d, Trial § 23.

      2. Criminal Law — Trial—Severance—Prejudice—Waiver—Appeal and Error.
    Michigan has a strong policy in favor of joint trials and a defendant must make an affirmative showing of prejudice before he is entitled to severance; a defendant who moved for severance alleging that one of his codefendants was going to exculpate herself at his expense, but who made no effort to substantiate his allegation, waived his objection to the joinder and on appeal reversal of the defendant’s conviction should be granted only to prevent a miscarriage of justice.
    3. Criminal Law — Testimony of Codefendant — Prejudice.
    A defendant was not prejudiced by the antagonistic testimony of a codefendant where the record shows that the jury totally disbelieved that testimony and that the defendant was convicted on the evidence presented by the prosecution.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Raymond P. Walsh (in Dunlap) and Larry L. Roberts (in Williams), Assistants Prosecuting Attorney, for the people.

      Raymond L. Miller, for defendant Theresa Dunlap on appeal.

      Bruce R. Saperstein, for defendant Harold Williams on appeal.
    Before: Bronson, P.J., and M. J. Kelly and D. C. Riley, JJ.
   Per Curiam:

Defendants were charged with the crime of assault with intent to commit murder, MCL 750.83; MSA 28.278. After a joint jury trial defendant Dunlap was convicted of the crime charged and sentenced to a prison term of 50 to 80 years, and defendant Williams was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and sentenced to a prison term of six years four months to 10 years. A third codefendant, Essie Henderson, was also convicted of assault with intent to murder and a fourth codefendant was acquitted. Defendants Dunlap and Harold Williams now appeal as of right.

Defendants’ convictions arose out of an incident which occurred on March 22, 1976. The complainant and another person went to defendant Dunlap’s house. Upon entering the house complainant was attacked by Essie Henderson. Ms. Henderson stabbed complainant with a pair of scissors, bit off part of her ear, and then hit her on the head with a wine bottle. After complainant was wrestled to the ground and tied up and while Ms. Henderson was sitting on her, defendant Dunlap injected heroin and bleach into complainant’s body approximately six times. Complainant was then thrown into the trunk of a car and taken to the banks of the Detroit River where she was shot twice by defendant Williams, once in the neck and once in the arm. Complainant was found the next morning by police who took her to the hospital where she recovered from her injuries.

On appeal both defendants claim that their trials should have been severed from that of Essie Henderson because Ms. Henderson exculpated herself while implicating defendants. Such a claim, if proven, would require severance. People v Hurst, 396 Mich 1; 238 NW2d 6 (1976). We will address each claim separately.

Prior to trial defendant Dunlap did not move for a severance nor did she join defendant Williams’ motion for a severance. In People v Cochran, 84 Mich App 710, 712; 270 NW2d 502 (1978), this Court stated that "a failure to move for severance precludes review of that issue, except to remedy a miscarriage of justice”. Accord, United States v Papadakis, 510 F2d 287 (CA 2, 1975), cert den, 421 US 950; 95 S Ct 1682; 44 L Ed 2d 104 (1975). A review of the record in this case shows no miscarriage of justice. Ms. Henderson did state that defendant Dunlap had stuck the complainant several times with a needle, but this point was admitted by the defense, and as such, there was no prejudice to defendant’s case. More importantly, Ms. Henderson testified that defendant Dunlap was forced to accompany the others to the river where complainant was shot. Since complainant was obviously not dead at this time, testimony that defendant Dunlap no longer wanted to continue the escapade would tend to negative any finding that she intended to kill complainant, a necessary element of the crime charged. Taken as a whole, then, not only did Ms. Henderson’s testimony not exculpate herself at the expense of inculpating defendant Dunlap but, if anything, Ms. Henderson’s testimony served to exculpate defendant Dunlap. The decision not to object to the joinder of defendant Dunlap’s trial with Ms. Henderson’s was a tactical decision and will not be the basis for reversal on appeal.

Defendant Williams’ case is more complicated. After the jury had been empaneled but before any evidence was taken, defendant Williams did move for severance based on the allegation that one of his codefendants was going to exculpate herself at his expense. He did not support this contention by citing previous antagonistic statements made by the codefendant, as was done in Hurst, nor did he accept the prosecution’s suggestion of making an offer of proof on this point. There is a strong policy in this state in favor of joint trials and a defendant must make an affirmative showing of prejudice before he is entitled to severance. People v Carroll, 396 Mich 408; 240 NW2d 722 (1976). Accord, People v Gunter, 76 Mich App 483; 257 NW2d 133 (1977). Since defendant Williams made absolutely no effort to substantiate his allegation, he waived his objection to the joinder, and on appeal reversal will be granted only to prevent a miscarriage of justice. Cochran, supra.

We find no such injustice in the present case. The record indicates that Ms. Henderson admitted her involvement in this affair and testified to defendant Williams’ involvement. The only place where she tried to exculpate herself and inculpate defendant Williams was in regard to the question of intent to kill. The gist of her testimony on this point was that she did not want to kill complainant but she was forced by defendant Williams to accompany him to the river where he intended to shoot and kill complainant. The reason why severance is dictated in these situations is to assure that defendant will be convicted by the prosecutor’s evidence, and not be prejudiced by a co-defendant who would all too willingly sacrifice defendant to save herself. See Hurst, supra.

In the present case, the prosecution’s evidence clearly showed that defendant Williams put complainant in the trunk of his car, drove her to the river, and shot her twice. The only evidence that Ms. Henderson’s testimony added to this was that defendant Williams had the subjective intent to kill complainant and she did not. The jury totally disbelieved this evidence. It convicted Ms. Henderson of assault with intent to murder and convicted Williams of assault with intent to do great bodily harm less than murder, the exact opposite of what it would have done if it had believed Ms. Henderson’s testimony. Since the prosecution’s evidence clearly showed an assault with intent to do great bodily harm by Williams and the testimony of Ms. Henderson which implicated defendant Williams in a greater crime, but exculpated herself from that crime, was totally disbelieved by the jury, Williams was convicted on the evidence presented by the prosecution and was in no way prejudiced by the antagonistic testimony of his codefendant.

Defendants’ other allegations of error are without merit.

Affirmed.


author: Per Curiam.

text:
    REMES v DUBY (AFTER REMAND)
    Docket No. 77-3200.
    Submitted October 11, 1978, at Lansing.
    Decided December 6, 1978.
    Leave to appeal applied for.
    Richard C. Remes and Billie Jane Remes commenced an action for damages for trespass against deputy sheriffs Joseph Duby and Gerald Woods, the law firm of Brown, Colman and DeMent, and Michael L. Chojnowski, a member of that law firm. The defendants’ motion for summary judgment was granted and the plaintiffs appealed. The Court of Appeals reversed and remanded, 69 Mich App 265 (1976). On remand, the plaintiffs were granted an opportunity to amend their pleadings to include specific allegations as to the defendant attorneys’ part in directing the alleged trespass of deputy sheriffs Woods and Duby. Subsequently summary judgment was granted as to defendants Michael L. Chojnowski and Brown, Colman & DeMent in Eaton Circuit Court, Hudson E. Deming, J., based on the failure of the plaintiffs to present competent evidence to support the allegations as to the defendant attorneys’ part in directing the alleged trespass. Plaintiffs appeal. Held:

    Plaintiffs’ affidavits supporting the allegations in the amended complaint, for the most part, contain inadmissible hearsay, mere conclusionary language and reiteration of the .unsworn averments in the complaint, and as such are insufficient to support the plaintiffs’ claim. The summary judgment was proper.
    Affirmed.
    1. Judgment — Summary Judgment — Failure to State Claim— Pleadings — Court Rules.
    Motions for summary judgment based on the failure of a plaintiff to state, a claim upon which relief can be granted are to be tested on the pleadings alone (GCR 1963, 117.2[1]).
    References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 13.

       73 Am Jur 2d, Summary Judgment § 18,

       73 Am Jur 2d, Summary Judgment §§ 26, 27.

      2. Judgment — Summary Judgment — Genuine Issue of Fact — Affidavits — Court Rules.
    A motion for summary judgment based on the failure of a plaintiff to raise a genuine issue as to any material fact is designed to determine whether there is any competent evidence that could support the plaintiffs claim; in ruling on such a motion, the trial court must consider the pleadings, affidavits, depositions, admissions and documentary evidence filed in the action (GCR 1963, 117.2[3]).
    3. Judgment — Summary Judgment — Affidavits—Court Rules.
    Affidavits used in a summary judgment proceeding must be made on personal knowledge of the affiant and shall set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds stated in the pleading or motion, and such standard is not satisfied with an affidavit which is based solely on information and belief (GCR 117.2[3]).
    4. Judgment — Summary Judgment — Genuine Issue of Fact — Evi-dentiary Support — Court Rules.
    Summary judgment grounded on the nonmoving party’s failure to raise a genuine issue as to any material fact is permissible when the nonmoving party is unable to provide evidentiary support for his allegations (GCR 1963, 117.2[3]).

      H. Donald Bruce, for plaintiffs.

      Foster, Swift, Collins & Coey, P.C. (by Michael J. Schmedlen), for defendants Chojnowski and Brown, Colman & Dement.
    Before: Danhof, C.J., and Bashara and Cynar, JJ.
   After Remand

Per Curiam.

Plaintiffs appeal from an order of summary judgment for defendants. The trial judge based his order on the failure of the plaintiffs to raise a genuine issue as to any material fact. GCR 1963, 117.2(3).

This is not the first time that this action has been before our Court. In Remes v Duby, 69 Mich App 265; 244 NW2d 440 (1976), this Court reversed a trial court order of summary judgment. Plaintiffs were granted, on remand, an opportunity to amend their pleadings to include specific allegations as to the defendant attorneys’ part in directing the alleged trespass of deputy sheriffs Woods and Duby.

Such specific allegations were deemed necessary and essential to the retention of the attorneys as defendants. This appeal arises out of the subsequent trial court proceeding.

Plaintiffs’ claim in the case at bar that their amended complaint meets the requisite specificity necessary to state a cause of action pursuant to GCR 1963, 117.2(1), and that the evidence submitted by the parties presents a genuine issue as to a material fact. GCR 1963, 117.2(3).

The amended complaint of plaintiffs contains one revised paragraph in which it is alleged that attorney Chojnowski directed Woods and Duby to make service on the plaintiffs "at any cost”, including forceful entry into their home. Furthermore, they claim that:

"Subsequent inquiry to the Eaton County Prosecuting Attorney’s office and the Eaton County Sheriffs office resulted in being told 'The attorney from Kalamazoo that secured and delivered the summons told the process servers of the Sheriffs Department that they had a right to enter the Remes’ house and to get service on them at "any cost”, and could break into the Remes’ house to make service’.”

Motions brought under GCR 1963, 117.2(1) are to be tested on the pleadings alone. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974). We find these pleadings sufficient to state a cause of action upon which relief could be granted so as to negate the availability of summary judgment under GCR 117.2(1).

However, a motion for summary judgment grounded on GCR 1963, 117.2(3) is designed to determine whether there is any competent evidence that could support the claim. The courts must consider the pleadings, affidavits, depositions, admissions, and documentary evidence filed in the action. See Bashara, The Elusive Summary Judgment Rule: Sifting Through the Maze, 1976 Det Col L Rev 397.

Supporting affidavits must be based on personal knowledge, not merely information and belief, so that the affiant can testify competently if sworn as a witness.

The affidavit must set forth with particularity such facts as would be admissible as evidence. Opinion, conclusionary denials, unsworn aver-ments, and inadmissible hearsay do not satisfy the court rule. Durant v Stahlin, 375 Mich 628, 657; 135 NW2d 392 (1965).

For the most part, plaintiffs’ supporting affidavits contain inadmissible hearsay, mere conclu-sionary language and reiteration of the unsworn averments.

It is only Sheriff Hoag’s affidavit which merits further consideration. In his affidavit he states that

"the attorney from said law firm contacted him and requested service be made at any cost, by any means, and offered $100.00 to $200.00 bonus for making the service; and that this information was passed on to Deputies Duby and Woods.”

The material or ultimate fact needed to be proved in this case is whether defendant attorneys ever directed that service on plaintiffs be made by use of illegal means.

We are compelled to agree with the findings of the trial judge that there is not one statement in all of the affidavits from which we may infer that the defendant attorneys advised anyone that the deputies were to serve the plaintiffs by forceful entry into their home.

The most that is found is that the summons was allegedly to be served "at any cost” and "by any means”.

We agree with the trial court that it is not a function of the judiciary to indulge in the remote speculation that the statement contemplated service by other than legal means.

When the nonmoving party is unable to provide evidentiary support for the allegations, summary judgment is permissible. See The Elusive Summary Judgment Rule, supra, at 417.

The trial court properly found there was no genuine issue as to any material fact. The order of summary judgment is affirmed. Costs to defendants.

       Plaintiffs’ amended complaint, p 2.


text:
    ALLSTATE INSURANCE COMPANY v ANDERSON
    Docket No. 77-3621.
    Submitted October 10, 1978, at Detroit.
    Decided December 6, 1978.
    Leave to appeal applied for.
    Lacy Anderson, owner and operator of a truck insured by plaintiff Allstate Insurance Company, and Anderson’s passengers, defendants Estille Johnson and Leonard Gierak, were severely injured in a collision with an uninsured motorist. Anderson also owned a car insured by Allstate in a separate policy. Each vehicle carried uninsured motorist coverage in the amount of $20,000/$40,000. Anderson, Johnson and Gierak filed a claim for uninsured motorist benefits with Allstate Insurance Company. Claimants contend that stacking of benefits was available, thus creating a combined total coverage of $80,000. Allstate contends that stacking of coverages was not available thus limiting a total award to $40,000. Allstate brought a declaratory judgment action in Wayne Circuit Court on the issue of stacking. Judgment for defendants, Horace W. Gilmore, J. Plaintiff appeals. Held:

    1. Uninsured motorist benefits under two automobile insurance policies may be stacked where the insured is the owner of both policies at the time of an accident with an uninsured motorist.
    2. Uninsured motorist benefits under two automobile insurance policies may be stacked by passengers of an insured motorist who has two policies with uninsured motorist coverage at the time of an accident with an uninsured motorist.
    Affirmed.
    1. Insurance — Insurance Contracts — Strict Construction.
    Insurance contracts are to be strictly construed against the insurer; it is the duty of the court to ascertain the meaning which an insured would reasonably expect.
    References for Points in Headnotes

       43 Am Jur 2d, Insurance §§ 271-273.

       7 Am Jur 2d, Automobile Insurance §§ 135, 135.7 (Supp), 136, 200-203.
    Uninsured motorist insurance: validity and construction of "other insurance” provisions. 28 ALR3d 551.

      2. Automobiles — Insurance—Uninsured Motorist — Two Policies— Stacking of Benefits.
    The stacking of uninsured motorist benefits of two automobile insurance policies is permissible where the insured is the owner of both policies at the time of an accident and there is no language or phrase in either policy which would lead him to reasonably expect to be limited to recovery on one policy alone.
    3. Automobiles — Insurance—Uninsured Motorist — Two Premiums —Single Recovery.
    An insurer should not be allowed to collect premiums for two uninsured motorist provisions in separate policies and then attempt to deliver only one recovery.
    4. Automobiles — Insurance—Uninsured Motorist — Two Policies— Passengers — Stacking of Benefits.
    Passengers of an insured motorist who had two policies with separate uninsured motorist provisions at the time of an accident involving an uninsured motorist are allowed to stack benefits under each of the policies.
    5. Automobiles — Insurance—Uninsured Motorist — Passengers— Definitions.
    The uninsured motorist provisions of an automobile insurance policy make no distinction between the insured and his passengers; an "insured” in the uninsured motorist provision includes "any other person while occupying an insured automobile”.

      Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C. (by James L. Borin), for plaintiff.

      Gerald Tuchow Law Offices, P.C. (by Robert T. Benefiel), for defendant.
    Before: M. F. Cavanagh, P.J., and D. E. Hol-brook, Jr., and N. J. Kaufman, JJ.
   Per Curiam.

On January 10, 1975, defendant Lacy Anderson, owner and operator of a truck insured by plaintiff Allstate Insurance Co., and Anderson’s passengers, defendants Johnson and Gierak, were severely injured in a collision with an uninsured motorist. Anderson also owned a car insured by Allstate in a separate policy. Each policy contained uninsured motorist coverage in the limits of $20,000/$40,000. This appeal, from an order of summary judgment granted in defendant’s favor on September 2, 1977, concerns the question of whether Anderson and his passengers may "stack” benefits under Anderson’s two policies.

For the reasons stated in the dissenting opinion in Kozak v Detroit Automobile Inter-Insurance Exchange, 79 Mich App 777; 262 NW2d 904 (1977), adopted in Detroit Automobile Inter-Insurance Exchange v Curl, 82 Mich App 140; 266 NW2d 479 (1978), we hold that stacking is permissible as to all three defendants.

Allstate argues that two provisions in the uninsured motorist section of the policy preclude stacking. The first is a part of the definition of "insured”:

"The insurance applies separately with respect to each insured, but the application of the insurance to more than one insured shall not operate to increase the limits of Allstate’s liability.”

The second is a 102-word sentence under the caption "Limits of Liability”:

"The limit of liability stated in the declarations as applicable to 'each person’ is the limit of Allstate’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person as the result of any one accident and, subject to the above provision respecting each person, the limit of liability stated in the declarations as applicable to 'each accident’ is the total limit of Allstate’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as the result of any one accident.”

Insurance contracts are to be strictly construed against the insurer. Nickerson v Citizens Mutual Insurance Co, 393 Mich 324, 330; 224 NW2d 896 (1975) . The court’s duty is to ascertain the meaning which the insured would reasonably expect. Zurich Insurance Co v Rombough, 384 Mich 228, 233; 180 NW2d 775 (1970). We cannot find that defendant Anderson, reading the two above-quoted clauses, would reasonably expect to be limited to recovery on the truck policy alone. The clauses are not written in terms of a second vehicle, a second policy, or passengers — terms which the insured might understand.

Even if the language were clear, the result might well be unconscionable. The insurer is collecting two uninsured motorist premiums, yet attempting to deliver only one recovery. See Blakeslee v Farm Bureau Mutual Insurance Co of Michigan, 388 Mich 464, 474; 201 NW2d 786 (1972), Boettner v State Farm Mutual Insurance Co, 388 Mich 482, 487; 201 NW2d 795 (1972), Michigan Millers Mutual Insurance Co v Adams, 84 Mich App 361, 366-371; 269 NW2d 602 (1978) (D. E. Holbrook, J., dissenting).

Allstate argues that even if we allow stacking as to the named insured, we should deny it as to the passengers, because they paid no premiums and are not resident relatives of the named insured. We do not find this argument persuasive. The terms of the policy make no such distinction; the definition of "insured” in the uninsured motorist section includes "any other person while occupying an insured automobile”. Thus Auto-Owners Insurance Co v Traviss, 72 Mich App 66; 248 NW2d 673 (1976) , is not on point, because in Traviss the defendant’s decedent did not fall within the policy definition of "insured”.

Allstate also directs our attention to Detroit Automobile Inter-Insurance Exchange v Curl, supra. In that case Russell Curl was killed in a collision with an uninsured motorist. Curl had resided in a household with his parents and a relative named Cummins. Curl’s estate sought to stack three policies — two issued to Curl’s parents, and one issued to Cummins. This Court allowed stacking of the parents’ policies, but denied it as to the Cummins policy.

In the case at bar Allstate contends that Anderson and Gierak are on the same footing as the Cummins policy. We disagree. The logical extension of stacking of the Cummins policy would have been unlimited liability which the insurer could not possibly foresee when writing a policy — e.g., a resident of a commune attempting to stack policies held by 20 or 30 residents of the same commune. In the case at bar, however, the insurer could forsee the liability stemming from a finite number of passengers, all defined as "insureds”, riding in a vehicle of finite size. As stated in the dissenting opinion of Kozak, supra at 786, should this result seem unfair to the insurer, the insurer may always petition the insurance commissioner for a rate adjustment. The insured has no such remedy.

Affirmed.


text:
    PEOPLE v JOHNSON
    Docket No. 77-3737.
    Submitted November 20, 1978, at Detroit.
    Decided December 6, 1978.
    Richard L. Johnson was convicted of attempted carnal knowledge of a female over the age of 16 and placed on five years probation. Subsequently, he was convicted of assault and battery and his probation was ordered revoked, predicated on the second conviction, Recorder’s Court of Detroit, Donald L. Hob-son, J. The defendant appeals, raising the issue of whether at the probation revocation hearing the defendant was entitled to collaterally attack the second conviction which formed the basis for the charge of probation violation. Held:

    The defendant was not entitled to collaterally attack, at the probation revocation hearing, the conviction which formed the basis of the probation violation charge because the only way to challenge the propriety of the underlying conviction is by way of direct appeal.
    Affirmed.
    Criminal Law-Probation Revocation — Probation Violation— Criminal Conviction — Collateral Challenge.
    A defendant who, while on probation, was convicted of a crime in violation of the conditions of his probation is not entitled to challenge, at his probation revocation hearing, the validity of the conviction which forms the basis for the charge of probation violation; the only proper manner to challenge the propriety of the underlying conviction is by way of direct appeal.
    References for Points in Headnote
    21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    Comment note — Procedural requirements, under Federal Constitution, applicable to revocation of probation or parole. 36 L Ed 2d 1077.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.

      William A. House, for defendant on appeal.
    Before: D. C. Riley, P.J., and Bronson and T. Gillespie, JJ.

      Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant appeals as of right from an order revoking his probation. The revocation was predicated on defendant’s conviction of a crime in violation of the conditions of his probation. The sole issue on appeal is whether at the probation revocation hearing defendant is entitled to collaterally attack the validity of the conviction which forms the basis for the charge of probation violation. In People v Clements, 72 Mich App 500; 250 NW2d 100 (1976), we answered this question in the negative and declared that the only proper manner to challenge the propriety of the underlying conviction is by way of direct appeal. In the respect that People v Brooks, 16 Mich App 759; 168 NW2d 658 (1969), can be construed as holding that questions concerning the validity of the conviction may be raised at the revocation hearing, it is no longer controlling. See People v Pickett, 391 Mich 305; 215 NW2d 695 (1974).

Affirmed.


text:
    TEXACO, INC v CLIFTON
    Docket No. 77-5167.
    Submitted June 6, 1978, at Grand Rapids.
    Decided December 6, 1978.
    Leave to appeal applied for.
    Texaco, Inc., brought a contract action against defendants Rodger J. Clifton, Harry E. Peterson, Marlene J. Peterson and Jeanette Clifton based on documents which the defendants executed guarantying the payment of certain obligations of the Gripe-Clifton Oil Company, Inc., to Texaco. The Calhoun Circuit Court, Creighton R. Coleman, J., found defendants Rodger Clifton and Harry Peterson jointly and severally liable to Texaco in the amount of $332,679.08 and defendants Marlene Peterson and Jeanette Clifton jointly with the other defendants and severally liable to Texaco in the amount of $100,000. Defendants appeal, claiming they were released from their guaranties because a material alteration occurred in the principal contract between Texaco and Gripe-Clifton Oil which adversely affected their duties as guarantors. Held:

    1. The trial judge’s findings were not clearly erroneous in his conclusion that Texaco was at liberty under the terms of the contract to observe the mandatory Federal gasoline allocation regulations without a breach of contract.
    2. The enactment of the mandatory program changed the parties’ duties under the terms of the contract but did not materially alter the terms of the contract and the guarantors were not released from their obligations.
    3. The separate guaranties executed by Mr. Clifton and Mr. Peterson were not, by their terms, tied to any particular contract between Texaco and Gripe-Clifton Oil and a change in the contract did not affect the guarantors’ liability.
    4. The delivery of gasoline by Texaco was not a condition precedent to Gripe-Clifton Oil’s obligation to repay Texaco; the language in the contract established just one of the alternate methods of payment open to Gripe-Clifton Oil.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 839-841.

       17 Am Jur 2d, Contracts § 240.

       38 Am Jur 2d, Guaranty §§ 73, 74, 81.

       17 Am Jur 2d, Contracts § 339.

      Affirmed.
    1. Appeal and Error — Findings of Fact — Without Jury — Clear Error — Court Rules.
    The findings of fact by a trial court sitting without a jury are to be affirmed on appeal unless they are clearly erroneous (GCR 1963, 517.1).
    2. Contracts — Interpretation.
    Contracts are to be interpreted so that meaning can be given to all the terms thereof, if possible.
    3. Contracts — Guaranty—Changes in Duties — Material Alterations.
    Guarantors were not released from liability on their guaranties due to the enactment of a mandatory Federal gasoline allocation program where the enactment of such program changed the parties’ duties under the terms of the contract containing such guaranties but did not materially alter the terms of the contract and where the contract itself provided for the observance of such mandatory regulations.
    4. Contracts — Absolute Debts — Conditions Precedent — Impossibility.
    A debt evidenced by a contract is due and payable a reasonable time after a condition precedent to the payment of the debt becomes impossible to fulfill where the parties were acknowledging a debt absolute upon the signing of the contract.

      Allen, Worth & Hatch, for plaintiff.

      Kendall MacLeod, for defendant.
    Before: Danhof, C.J., and V. J. Brennan and R. H. Campbell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

After a nonjury trial, defendants, Rodger Clifton and Harry Peterson, were found jointly and severally liable to plaintiff, Texaco, Inc., in the amount of $332,679.08 and defendants, Marlene Peterson and Jeanette Clifton, were found, jointly with the other defendants and severally, liable to plaintiff in the amount of $100,000. Defendants’ liability was based on documents which they executed guarantying payment of certain obligations of the Gripe-Clifton Oil Company, Inc. (hereinafter, G-C Oil), to Texaco. Defendants appeal as of right claiming that they were released from their guaranties because a material alteration occurred in the principal contract between Texaco and G-C Oil which adversely affected their duties as guarantors.

In a letter dated November 13, 1973, Rodger Clifton made a proposal for an agreement between G-C Oil and Texaco whereby G-C Oil would be reestablished as a distributor of Texaco products. This letter acknowledged that G-C Oil had an outstanding debt to Texaco in the amount of $93,853.43. The proposal, which was accepted by Texaco, stated that Texaco would provide G-C Oil with a maximum of 10,000,000 gallons of gasoline per year and that Texaco would also give G-C Oil $250,000 in product advances and extend to them a $100,000 line of credit. These product advances were to be repaid at a rate of one cent per gallon of gasoline sold to G-C Oil by Texaco during the first two years and at a rate of one and one-quarter cents per gallon of gas sold thereafter. In the proposal, G-C Oil offered to execute two promissory notes to Texaco: one for the outstanding debt and another for the product advances. Guaranties were also to be obtained from the defendants. The proposal also provided:

"It is understood that the actual quantities to be supplied by TEXACO to Clifton under the agreement will be subject at all times to and in accord with such TEXACO and/or governmental allocation program in effect during the term of the agreement provided, however, that any allocation of products to Clifton will be based upon the gallonage fígures set forth in this agreement * * * .”

On November 14, 1973, G-C Oil and Texaco entered into a written distributor agreement. According to this agreement, Texaco agreed to sell to G-C Oil "in quantities specified from time to time by Purchaser, but * * * not less per year than the minimum quantity nor more per year than the maximum quantity stated below.

Minimum Maximum
Texaco Motor Gasoline -0- gals. 10,000,000 gals ”.

The distributor agreement also provided: •

"9. In the event Seller’s capacity to perform as to all or some of its customers, including Buyer, becomes impractical, in Seller’s sole judgment, for any reason whatsoever, Seller shall be relieved of its obligation to perform hereunder and shall not be obligated to Buyer by reason of any delay in performance in whole or in part. Seller shall notify Buyer in writing of its lack of capacity to perform by mail addressed to Buyer. In such notification Seller shall advise Buyer the quantities, if any, Seller will be able to supply Buyer in the foreseeable future. Within ten (10) days thereafter, Buyer shall notify Seller whether it wishes to purchase such reduced quantities where Seller has advised that reduced quantities are available, otherwise this agreement shall terminate.
"11. If Seller determines that it is unable to perform hereunder by reason of any federal, state or local law or regulation, order, rule, recommendation, request or suggestion relating to priority, rationing or allocation of any product covered hereby, Seller may terminate this agreement at any time on ten (10) days notice to purchaser.
"13. Purchaser understands and agrees that the quantities of product specified herein are the maximum quantities that will be delivered in any twelve month period and the actual quantities to be supplied by Seller will be subject at all times to and in accord with such Texaco and/or governmental allocation program in effect during the term of this agreement provided, however, that any allocation will be based upon the gallo-nage specified herein.”

G-C Oil also executed two promissory notes to Texaco evidencing the $250,000 in product advances and the outstanding debt of $93,853.43. Defendants, Mr. Clifton and Mr. Peterson, each signed these notes guarantying payment of these obligations when due. They also signed guaranties whereby they "unconditionally and absolutely guarantee payment when due of any and all present or future indebtedness owed to” plaintiff by GC Oil. Mrs. Clifton and Mrs. Peterson also signed guaranties similar to their husbands, but these guaranties were limited to the amount of the $100,000 line of credit.

On November 27, 1973, Congress enacted the Emergency Petroleum Allocation Act, 15 USC 751, et seq., which authorized the establishment of a mandatory gasoline allocation program. In the regulations implementing this act, the Federal Energy Administration established a base period for determining one’s allocations of 1972, limiting wholesalers to a certain percentage of the quantity of gasoline they purchased in that year. According to the regulations, G-C Oil’s allocation base was approximately 5,802,500 gallons annually rather than the 10,000,000 gallons referred to in the contract.

On February 26, 1976, G-C Oil initiated a Chapter 11 proceeding in the Federal Bankruptcy Court. On March 15, 1976, plaintiff notified defendants of G-C Oil’s default and demanded payment.

Defendants claim that they were released from their obligations as guarantors because the enactment of the mandatory gasoline allocation program pursuant to 15 USC 751 et seq., materially altered the underlying contract between Texaco and G-C Oil and adversely affected their obligations as guarantors, see Wilson Leasing Co v Seaway Pharmacal Corp, 53 Mich App 359; 220 NW2d 83 (1974). Defendants claim that because the mandatory allocation program used a base of only 5,802,500 gallons instead of the 10,000,000 referred to in the contract, they could not get enough gasoline to sell. Defendants claim that if G-C Oil had received the 10,000,000 gallons promised, it would have been in a better position to meet its obligations so that the guarantors would not have been called upon to pay on its default. Therefore, defendants claim that the enactment of the Emergency Petroleum Allocation Act, supra, materially altered the principal contract so as to release them from their obligations as guarantors.

The trial judge found that Texaco did not unconditionally promise to deliver to G-C Oil 10,000,000 gallons of gasoline even if this required violating mandatory Federal regulations. The trial judge found that this 10,000,000 gallon figure referred only to the maximum amount that Texaco would deliver. The trial judge recognized the inconsistency between the language in paragraph 13 of the distributor agreement which stated that any allocation program would be based on the gallonage specified, 10,000,000 gallons, and the language in the agreement which stated that any allocation program would be in accordance with government regulations in cases in which the government regulations specified a different allocation base. The trial judge interpreted this language to mean that the 10,000,000 gallon base would apply to any voluntary allocation program which was instituted by either Texaco or the government. However, he concluded that the possibility that a mandatory allocation program might be created which required a base different from the 10,000,000 gallon allocation base specified in the agreement was controlled by the provisions of paragraphs 9 and 13 of the distributor agreement. Therefore, he concluded that Texaco was at liberty, under the terms of the contract, to observe the mandatory regulations without breaching the contract.

Findings of fact by the trial court sitting without a jury are to be affirmed unless they are clearly erroneous, GCR 1963, 517.1. After a review of the record in this case, we conclude that the findings of the trial judge were not clearly erroneous. The guarantors in this case were aware of the terms of the underlying contract. All the parties were aware of the possibility of a voluntary and/or mandatory allocation program. The contract was structured accordingly. Although some of the contract terms appear inconsistent, the trial judge did not err in his interpretation of them. Contracts are to be interpreted so that meaning can be given to all the terms thereof, if possible, see McIntosh v Groomes, 227 Mich 215; 198 NW 954 (1924). The enactment of the mandatory program was a contingency contemplated by the parties when they entered into the agreement and they inserted a provision in the contract stating how this contingency would affect their relationship. The enactment of the mandatory program changed the parties’ duties under the terms of the contract but it did not materially alter the terms of the contract.

Since there was no material alteration of the terms of the contract, the guarantors are not released from their obligations. We also note that the separate guaranties executed by Mr. Clifton and Mr. Peterson were not, by their terms, tied to any particular contract between G-C Oil and Texaco. Therefore, any change in that contract would not have affected the guarantors’ liability on these guaranties, see John A Tolman Co v Griffin, 111 Mich 301, 304; 69 NW 649 (1896).

Defendants also argue that the judgment should be reversed because, according to the terms of the note evidencing the debt on the product advances, G-C Oil’s obligation to repay Texaco was not due. In the promissory note given to Texaco by G-C Oil, G-C Oil agreed to pay off the product advances without interest at the rate of one cent per every gallon of gasoline and fuel oils sold by Texaco to Clifton during the first two years of the agreement and at the rate of 1-1/4 cents per every gallon during the third year of said term. Defendants argue that this method of payment was the exclusive method contemplated by the parties. They argue that the reference to one cent per gallon sold was a condition precedent to G-C Oil’s obligation to repay Texaco and that until Texaco sold and delivered gasoline to G-C Oil, its debt was not due. Defendants also argue that G-C Oil has paid Texaco one cent for every gallon of gas delivered and so it does not owe Texaco any additional money on this note. The trial court found that the delivery of gasoline was not a condition precedent to G-C Oil’s obligation to repay Texaco but that this language in the contract established just one of the alternative methods of payment open to G-C Oil.

We conclude that the trial court did not err in its interpretation of these provisions. In any event, if this clause is viewed as a condition precedent, the performance of it should be excused because of impossibility. The parties stipulated that Texaco had made over $121,000 in product advances to GC Oil and that the $93,000 referred to in the note was an antecedent debt. The only performance left unfulfilled was the payment by G-C Oil. G-C Oil is now bankrupt and is not accepting deliveries of gasoline from Texaco. Since the performance of the condition precedent is now impossible and since the parties were acknowledging a debt absolute upon the signing of the contract, the debt is due and payable in a reasonable time after the condition precedent became impossible to fulfill, see Wagner v Kincaid, 291 Mich 262; 289 NW 154 (1939), Restatement Contracts, § 301, p 445, 5 Williston, Contracts, (3d ed), § 799, p 815, LRA 1917B, p 1050, 148 ALR 1075. A reasonable time has elapsed and the amounts payable under the note are now due. Therefore, the guarantors are obligated to pay.

The other issues raised by defendants do not warrant extended discussion or reversal.

Affirmed. Costs to plaintiff.

       This conclusion is also supported by MCL 440.2615; MSA 19.2615, since the trial court found that Texaco did not assume a greater obligation requiring it to violate the mandatory Federal regulations, see also, Terry v Atlantic Richfield Co, 72 Cal App 3d 962; 140 Cal Rptr 510 (1977). 15 USC 755(c) also provided that compliance with the Federal regulations would be available as a defense in any breach of contract action. However, Texaco’s liability for breach of contract.is not the issue in this case. The issue to be resolved is whether the guarantors were released from their guaranties.

        See, Grace v Croninger, 12 Cal App 2d 603; 55 P2d 940 (1936); In Grace, supra, the guarantor guaranteed payment of the leasee’s rents for a saloon. The lease provided that the building could be used only as a saloon, a cigar store, or a place for a shbeshine stand. The War Time Prohibition Act, 40 Stat 1046, was enacted and severely limited the leasee’s use of the building. The leasee still used the building to serve non-alcoholic beverages, sell cigars, and to shine shoes. The Court in Grace, supra, held that although the enactment of the prohibition act severely frustrated the leasee’s venture, the lease was still in effect and the guarantor was not released from his guaranty.


author: Per Curiam. D. E. Holbrook, J.

text:
    LeBLANC v STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    Docket No. 78-261.
    Submitted October 3, 1978, at Escanaba.
    Decided December 6, 1978.
    Leave to appeal applied for.
    Joseph LeBlanc was insured under a no-fault automobile insurance policy issued by State Farm Mutual Automobile Insurance Company. He made a claim under his no-fault policy for personal injury benefits. He had also received Medicare payments for medical and hospital services. The no-fault policy contained a provision for the subtraction of government benefits which had been received. State Farm deducted the amount paid by Medicare from the benefits it paid. Mr. LeBlanc brought an action in Houghton Circuit Court to recover the deducted Medicare payments. Summary judgment for plaintiff, Stephen D. Condon, J. The court refused to award attorney fees to plaintiffs counsel. Defendant appeals and plaintiff cross-appeals. Held:

    1. Under the no-fault automobile insurance statute an insurer is allowed to set off benefits payable against benefits received from a governmental source.
    2. The insurer neither unreasonably delayed nor unreasonably refused to pay plaintiffs claim; therefore, no attorney fees may be charged under the no-fault act.
    Affirmed in part, reversed in part.
    D. E. Holbrook, J., dissented and would hold that the no-fault automobile insurance statute which allows an insurer to set off benefits against benefits received from an unrelated purchased medicare insurance policy from the government is unreasonable and unconstitutional.
    Opinion of the Court
    1. Constitutional Law — Automobiles—No-Fault Insurance — Benefits — Set Offs — Statutes.
    A section of the no-fault automobile insurance statute which allows an insurer to set off benefits payable against benefits received from a governmental source is constitutional (MCL 500.3109; MSA 24.13109).

      References for Points in Headnotes

       New Topic Service Am Jur 2d, No-Fault Insurance § 22.

       New Topic Service Am Jur 2d, No-Fault Insurance § 7.

      2. Automobiles — No-Fault Insurance — Benefits—Delay in Payment — Refusal to Pay — Attorney Fees.
    Attorney fees may be charged under the no-fault act against an insurer in an action by a claimant for personal or property protection benefits which are overdue only upon a finding that the insurer unreasonably delayed or refused payment.
    Dissent by D. E. Holbrook, J.
    3. Constitutional Law — Automobiles—No-Fault Insurance — Benefits — Set Offs.

      A section of the ¡no-fault automobile insurance act which allows an insurer to set off beneñts received from an unrelated purchased medicare insurance policy from the government is unreasonable and unconstitutional (MCL 500.3109[1]; MSA 24.13109[1]).

      McLean & McCarthy, for plaintiff.

      Weis & Cossi, P.C., for defendant.
    Before: J. H. Gillis, P.J., and D. E. Holbrook and R. M. Maher, JJ.
   Per Curiam.

This is an automobile no-fault insurance case wherein plaintiff sustained personal injuries and received Medicare payments with respect to medical and hospital services rendered therefor.

Plaintiff was insured under a no-fault automobile insurance policy issued by the defendant and he made a claim for personal protection benefits under that policy. The policy contained a provision for subtraction of government benefits, as mandated by MCL 500.3109; MSA 24.13109. Defendant therefore deducted the amount paid by Medicare from the benefits paid to the plaintiff.

Plaintiff brought this action on April 15, 1977, to recover the deducted Medicare amounts and was granted a summary judgment by the trial court on the authority of O’Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976).

The trial court denied an award of attorney fees for plaintiff’s counsel, finding no unreasonable refusal to pay benefits on behalf of the defendant. From that judgment defendant filed an appeal pursuant to GCR 1963, 806.1 and plaintiff has filed a cross-appeal pursuant to GCR 1963, 807.1.

We are aware of the split of authority in this Court with respect to the constitutionality of the government benefits deduction provision of the no-fault automobile insurance act. O’Donnell, supra, Wysocki v Detroit Automobile Inter-Insurance Exchange, 77 Mich App 565; 258 NW2d 561 (1977), and Pollock v Frankenmuth Mutual Insurance Co, 79 Mich App 218; 261 NW2d 554 (1977), have declared this provision of the act to be in violation of the constitutional standards of equal protection and due process.

On the other hand, the constitutionality of the provision has been upheld in Smart v Citizens Mutual Insurance Co, 83 Mich App 30; 268 NW2d 273 (1978), and Greene v State Farm Mutual Automobile Insurance Co, 83 Mich App 505; 268 NW2d 703 (1978).

We find the latter cases more convincing and quote with approval from Judge Bashara’s dissent in O’Donnell, supra, at 506-507:

"Under the statutory scheme everyone participating in no-fault is entitled to certain minimum benefits. The fact that some individuals are unable to purchase private insurance is of no moment. As long as everyone has an opportunity to enjoy a minimum statutory benefit, there is no absolute deprivation. Any discrimination that might exist is insufficient to justify invoking the Equal Protection Clause.”

As to the trial court’s refusal to award an attorney fee, we affirm. See Davidson v Johnson (On Rehearing), 79 Mich App 660, 666-667; 262 NW2d 887 (1977).

Reversed in part; affirmed in part. No costs, a public question being involved.

D. E. Holbrook, J.

(dissenting). This writer must respectfully dissent from the decision reached by the majority with respect to the constitutionality of MCL 500.3109; MSA 24.13109. As noted by the majority, a significant split of opinion has arisen in our Court on this issue.

The constitutionality of MCL 500.3109 was first raised in O’Donnell v State Farm Mutual Automobile Insurance Co, 70 Mich App 487; 245 NW2d 801 (1976), lv gtd 397 Mich 848 (1976). In reaching the conclusion that MCL 500.3109(1); MSA 24.13109(1), is unconstitutional, the majority in O’Donnell noted at 495, 496-497 that:

"[T]he effect of § 3109(1) is to allow both no-fault benefits and private insurance benefits to those who have such private insurance, yet it reduces no-fault benefits by any benefits received under a governmental program. Thus, those who have no private insurance or who cannot afford such insurance receive fewer benefits because of that fact. We find this section to be patently unreasonable and discriminatory.
"The provision requires the reduction of recovery by benefits which are in a very real sense 'paid for’ by the 'insured’, such as under social security, or benefits which are in the nature of employee benefits to government employees and veterans. In this case the beneficiary’s no-fault benefits are reduced by governmental insurance the insured has paid for but not by private insurance for which he has paid.” (Footnote omitted.)

The next panel to have considered this issue was the panel which decided Wysocki v Detroit Automobile Inter-Insurance Exchange, 77 Mich App 565; 258 NW2d 561 (1977), and which also concluded that the statute in question was unconstitutional. In Wysocki a unanimous Court affirmed the O’Donnell determination that no reasonable basis existed for the like treatment of both "earned” and "unearned” governmental benefits or for the dissimilar treatment of private insurance benefits and governmental benefits. This Court unanimously arrived at the same result in Pollock v Frankenmuth Mutual Insurance Co, 79 Mich App 218; 261 NW2d 554 (1977), lv to appeal pending, although the Court adopted a different approach from that utilized previously.

In Pollock at 224 the Court noted that the purpose of this provision was to reduce insurance premiums by eliminating one source of duplicative recovery. The Court held this to be a legitimate legislative objective, however, it held that the net effect of the statute in this regard was to require:

"[T]he class of insureds entitled to workers’ compensation as well as no-fault recovery is forced to subsidize premium savings by the greater class of all insureds. To put the matter another way, worker motorists are forced to purchase insurance on which the law denies them a right of recovery, so that other insureds may enjoy lower premiums for insurance on which they can recover.”

The next panel of this Court to consider the issue of the constitutionality of MCL 500.3109(1), relied upon Pollock in a unanimous per curiam opinion holding the pertinent section of the no-fault act to be unconstitutional. Mielke v Michigan Millers Mutual Insurance Co, 82 Mich App 721; 267 NW2d 165 (1978), lv to appeal pending. MCL 500.3109(1) was first upheld by a panel of this Court in Smart v Citizens Mutual Insurance Co, 83 Mich App 30, 33; 268 NW2d 273 (1978). In that case the majority concluded as follows:

"In mandatory terms, the Legislature, by its enactment of the no-fault automobile insurance provisions, established a minimum level of disability benefits for Michigan citizens who suffer adverse financial consequences from personal injury automobile accidents. The establishment of that minimum level is maintained by § 3109(1).
"All benefits derived from governmentally promulgated programs are combined under that section to reach the predetermined minimum benefit level. Those who desire to enhance that benefit provision may do so by voluntarily entering into private contractual arrangements. The constitutional implications of this scheme were also analyzed in the dissenting opinion in O’Donnell. With that reasoning and result, we agree.”

A majority of the Court in Greene v State Farm Mutual Automobile Insurance Co, 83 Mich App 505; 268 NW2d 703 (1978), lv to appeal pending concurred in the Smart opinion’s reasoning.

This writer finds the approach taken by the Smart opinion in considering § 3109(1) to be untenable. It sanctions a procedure whereby many persons will receive reduced benefits under legislatively mandated insurance contracts, because of their receipt of unrelated governmental benefits which were also purchased. As the statute reads, this writer respectfully dissents from the majority’s decision in this case and agrees with the result reached in Pollock and Mielke.

This writer votes for affirmance.

       In this case, the plaintiff purchased Medicare insurance.


author: Per Curiam. Beasley, J.

text:
    FLAHERTY v SMITH
    Docket No. 78-976.
    Submitted October 18, 1978, at Detroit.
    Decided December 6, 1978.
    Plaintiff James Flaherty was granted temporary custody of his seven-year-old stepchild after the death of the child’s mother. A custody hearing was subsequently held, at the conclusion of which the Wayne Circuit Court, Christopher C. Brown, J., granted immediate custody of the child to defendant Clara Mae Smith, the maternal grandmother. The Court of Appeals thereafter granted plaintiff’s motion for a stay of execution pending appeal. On appeal held:

    1. The trial court committed clear legal error on a major issue since it failed to consider, in determining the best interests of the child, whether the child was capable of expressing a reasonable preference as to whom the child preferred to live with. There was evidence tending to establish that the child was able to express a reasonable preference and preferred to continue to live with the plaintiff.
    2. In a case such as this one, where the custody issue was a close one, an expression of preference by an intelligent, unbiased child might be a determining factor in the decision as to what the best interests of the child are.
    3. The statements of the trial judge, coupled with his inability to follow the evidence and clear precedent, suggest a strong preexisting opinion, therefore it is advisable that the case be heard by a different judge on remand.
    Reversed and remanded.
    Beasley, P.J., dissented and would hold that the complex inter-racial factors present suggest that the trial judge was correct in declining to expose the child to the inevitable pressures involved in extracting an expression of preference.

      References for Points in Headnotes

       42 Am Jur 2d, Infants § 43.

       42 Am Jur 2d, Infants §§ 44-46. Child’s wishes as factor in awarding custody. 4 ALR3d 1396.

       42 Am Jur 2d, Infants §§ 32, 44.
    Propriety of court conducting private interview with child in determining custody. 99 ALR2d 954.

      The Child Custody Act does not require that in every case the trial judge conduct some kind of on-the-record hearing with the child to determine whether the child should be required to express a preference. In many cases, the best interests of the child are served by declining to force the child to express a preference.
    There is nothing in the record to suggest a basis for taking this case from the trial judge and assigning it to another judge on remand.
    Opinion of the Court
    1. Infants — Appeal and Error — Child Custody Act — Custody Dis- ■ putes — Findings of Fact — Abuse of Discretion — Legal Error — Statutes.
    The Child Custody Act provides that all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue (MCL 722.28; MSA 25.312[8]).
    2. Infants — Child Custody Disputes — Best Interests of Child— Factors — Child Custody Act — Statutes.
    The best interests of the child, as determined through an evaluation of the factors listed in the Child Custody Act, control a determination of child custody (MCL 722.23; MSA 25.312[3]).
    3. Appeal and Error — Infants—Child Custody Disputes — Best Interests of Child — Child’s Preference — Statutes.
    A trial court committed a clear legal error on a major issue in a custody dispute over a seven-year-old child where it failed to consider, in determining the best interests of the child, whether the child was capable of expressing a reasonable preference as to whom the child preferred to live with since the court was of the opinion that a seven-year-old child was not in a position to voice such an opinion where the custody issue was a close one and there was evidence tending to establish that the child was able to express a reasonable preference (MCL 722.23; MSA 25.312[3]).
    Dissent by Beasley, P.J.
    4. Infants — Child Custody Disputes — Best Interests of Child— Child’s Custodial Preference.

      The overriding consideration in custody matters is the best interest of the child; the best interest of the child is served, in

      many cases, by declining to force a child to express a custodial preference between the parties.

    5. Infants — Child Custody Act — Record—Child’s Custodial Preference — Statutes.

      The Child Custody Act does not require a trial judge to conduct some kind of on-the-record hearing or interview with the child in every child custody case in order to determine whether the child should be required to express a custodial preference between the parties (MCL 722.21 et seq.; MSA 25.312[1] et seq.)

      Marianne O. Battani, for plaintiff.

      Bell & Hudson, P.C. (by Edward F. Bell and Ronald A. Molter), for defendant.
    Before: Beasley, P.J., and R. B. Burns and J. H. Vander Wal, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.

   Per Curiam.

This case involves a custody dispute between a 7-year-old child’s stepfather and maternal grandmother. Following the death of the child’s mother, plaintiff stepfather sought and was granted temporary custody. A custody hearing was subsequently held, at the conclusion of which the trial court granted immediate custody of the child to defendant grandmother. This Court granted a stay pending appeal.

On review, we are limited to a determination of whether the trial court made findings of fact against the great weight of evidence, committed a palpable abuse of discretion, or committed a clear legal error on a major issue. MCL 722.28; MSA 25.312(8). We conclude that the trial court committed a clear legal error on a major issue.

Under the Child Custody Act, the best interests of the child, as determined through evaluation of the factors listed in MCL 722.23; MSA 25.312(3), control the determination of custody. One factor to be considered is:

"(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.”

In In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975), a trial court declined to interview a 4-year-old child as to its preference, because the trial court did not deem the child to be of sufficient age to express a preference. No record had been made as to whether the child was capable of expressing a reasonable preference. This Court observed that, in a close case, an expression of preference by an intelligent, unbiased child might be a determining factor in the decision as to what the best interests of the child are. This Court remanded for a determination of the child’s ability to express a reasonable preference, and such further action as circumstances warranted. This decision has been subsequently reaffirmed by this Court. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977), cf., Barnes v Barnes, 77 Mich App 112; 258 NW2d 65 (1977).

In the instant case, plaintiffs counsel inquired as to the judge’s desire regarding an interview of the child. The judge responded:

"I don’t have any desire. The Court is of the opinion that a seven year old is not in a position to voice his opinion as to whom it should live with. Despite the fact that the seven year old might have stated to anyone that it had a preference to live at a particular place or with a particular individual. This Court is not going to take that into consideration. So there is no [necessity for me to talk to the seven year old child..
"MS. BATTANI: Excuse me Your Honor, but I believe that it has frequently been held in Lewis versus Lewis [Lewis v Lewis, supra] and Barns versus Barns [sic] [Barnes v Barnes, supra] and custody of James [In re Custody of James B, supra] that the Court must have a[n] evidentiary hearing as to whether or not the child is able to express an opinion.
"THE COURT: I don’t think so. I don’t think that is a correct interpretation of that case. These guidelines indicate that, if the Court deems the child to be of sufficient age to express a preference. I am deeming that a seven year old is not.
"MS. BATTANI: Your Honor, you are deeming this without even interviewing the child?
"THE COURT: He is seven years old. I don’t think a seven year old has the ability too [sic]. That is the Court ruling and it is stated for the record.
"MS. BATTANI: For the record, I would like my objections noted.
"THE COURT: It is noted.”

At the conclusion of the hearing, while discussing his evaluation of the factors listed in MCL 722.23; MSA 25.312(3), the judge stated:

"The Court, in this particular instance, is of the opinion that a seven year old child is just not in the position to voice a determination as to who he shall live with. He hasn’t lived long enough and experienced enough. He is not able to make any kind of rational determination about his own well being. How could any of us listen to a seven year old child and arrive at a conclusion that he knows what is best for him. I would venture to say, that we would be held responsible if we let a seven year old, under our custody and control, decide his future.”

As in James B, the custody issue was a close one. Unlike James B, there was evidence tending to establish that the child was able to express a reasonable preference and preferred to continue to live with plaintiff.

The statement of the judge, coupled with his inability to follow the evidence and clear precedent, suggest such a strong preexisting opinion on this issue that we think it advisable that the case be heard by a different judge on remand. See Lewis v Lewis, supra, at 567; 252 NW2d at 239. That judge shall beview the record de novo; determine whether the child is capable of expressing a reasonable preference, and, if so, what that preference is, In re Custody of James B, supra, and may supplement the record if the delay caused by this error so necessitates, Roudabush v Roudabush, 62 Mich App 391, 395; 233 NW2d 596, 597 (1975).

Reversed and remanded. No costs.

Beasley, J.

(dissenting). I respectfully dissent.

The majority hold that the trial judge was in error in declining to interview a 7-year-old child to ascertain whether he had a custodial preference between his maternal grandmother and his stepfather.

In custody matters, by statute, case law and common sense, the paramount overriding consideration is the best interest of the child. In many cases, the best interest of the child is served by declining to force the child to express a preference.

The complex inter-racial factors present suggest that the trial judge was wise and correct in declining to expose the child to the inevitable pressures involved in extracting an expression of preference for appellate review.

I do not believe that the Child Custody Act of 1970, MCL 722.21 et seq.; MSA 25.312(1) et seq., requires that in every case the trial judge conduct some kind of on-the-record hearing or interview with the child to determine whether the child should be required to express a preference. Contrary to In re Custody of James B, I doubt that the Supreme Court will find that a 4-year-old is of sufficient age to express a preference, or that it is error for a trial judge to decline to force a 4-year-old child to testify so that an appellate court will have a record to review.

In the within case, the trial judge has made his position clear. He did not believe the 7-year-old was of sufficient age to express a preference. Obviously, the trial judge assumed that if asked, the 7-year-old would express a preference to stay with the Stepfather. Apparently, the trial judge also believes it will not serve the child’s best interest to probe for the reason for his preference.

Last, I find nothing in this record to suggest a basis for taking this case from the trial judge who heard and decided it and to assign it to another judge on remand.

I would vote to affirm.

       66 Mich App 133; 238 NW2d 550 (1975).