author: M. E. Clements, J.

text:
    PITTSFIELD TOWNSHIP v CITY OF ANN ARBOR
    Docket No. 77-4078.
    Submitted June 22, 1978, at Lansing.
    Decided October 2, 1978.
    Ann Arbor City Council passed a resolution annexing six parcels of land, collectively referred to as the airport parcel, from Pittsfield Township. A proceeding was commenced in Washtenaw Circuit Court, by Pittsfield Township, to have the annexation declared null and void. Ann Arbor City Council passed a second resolution annexing land known as the Eisenhower Parkway which was also located in Pittsfield Township. Pitts-field Township requested the court to void this annexation also. The court found that the attempted annexation of the airport property was illegal because it created an enclave of township property that was politically deadlocked and could result in gerrymandering. The court also found that the boundary of the attempted airport annexation was not a reasonable configuration, was not proportionately adjacent or contiguous to the city and could not properly be annexed by resolution. The court found that Eisenhower Parkway was not a park, was not vacant property, and that its annexation would also create an illegal township enclave within city boundaries. Summary judgment for Pittsfield Township as to both attempted annexations, Ross W. Campbell, J. The City of Ann Arbor appeals. Held:

    The annexation of township territory to a city by resolution of its city council requires that the property be adjacent to the city, a park or vacant property, owned by the city and without residents thereon. The annexation statute is not exclusive and courts may examine proposed city annexations to determine whether they are reasonably contiguous with the city and whether illegal enclaves would be created. The court acted properly when it examined the proposed annexations and found (1) that the proposed airport annexation would create an illegal triangular enclave of township property surrounded by city territory, and (2) Eisenhower Parkway is in constant use as a road, had not been abandoned, and was not vacant property for purposes of the statute and that the annexation of the roadway would result in the creation of an enclave of township property resided in by over 100 persons.

      References for Points in Headnotes
    [1, 6] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 50, 55, 57.
    [2-4] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 57.
    [5] 73 Am Jur 2d, Statutes §§ 204, 206-208.
    [7] 73 Am Jur 2d, Summary Judgment § 18.

      Affirmed.
    1. Municipal Corporations — Towns—Annexation—Contiguity— Gerrymandering — Compactness of Boundaries — Appeal and Error — Statutes.
    Township territory may be annexed to a city solely by resolution of the city council where the territory proposed to be annexed is adjacent to the city and consists of a park or vacant property located in the township and owned by the city and there is no one residing thereon; this annexation statute is not exclusive and appellate courts generally hold that such additonal factors as contiguity, gerrymandering, and reasonable compactness of boundaries be considered by trial courts in annexation cases (MCL 117.9[8]; MSA 5.2088[8]).
    2. Municipal Corporations — Towns—Annexation—Contiguity— Enclaves.
    A trial court should examine proposed city annexations of township territory to determine whether such annexations are reasonably contiguous with the city and whether illegal enclaves would be created.
    3. Words and Phrases — Enclaves—Definition.
    An enclave is defined as a tract of territory enclosed within a foreign territory.
    4. Municipal Corporations — Towns—Annexation—Enclaves— Township Territory.
    A triangular enclave of township territory surrounded by city territory should not be created by a city annexation of township property.
    5. Statutes — Construction—Sentences—Words—Approved Usage.
    Eifect must be given to each part of a sentence in construing the words of a statute so as not to render any other part nugatory; words are to be construed according to their common and approved usage (MCL 8.3a; MSA 2.212[1]).

      6. Municipal Corporations — Towns—Annexation—Vacant Property — Beneficial Property Use — Statutes.
    A portion of the annexation statute which provides for the annexation of a park or vacant property located in a township and owned by the city requires that the township land to be annexed be owned by the city and consists of a park or land which is not resided upon and not utilized for any beneficial purpose; a parkway that is in constant use as a road has not been abandoned and is not vacant property for purposes of this portion of the statute (MCL 117.9[8]; MSA 5.2088[8]).
    7. Judgment — Summary Judgment — Supporting Affidavit — Sufficiency.
    An affidavit in support of a motion for summary judgment is not fatally defective because it contains some facts of which the affiant has no personal knowledge if other portions of the affidavit of which the affiant does have personal knowledge are legally sufficient to support a trial court in its decision to grant. a judgment.

      Reading & Etter, for plaintiff.

      John K. Van Loon, Assistant City Attorney, for defendant.
    Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

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

   M. E. Clements, J.

On December 20, 1976, the Ann Arbor City Council passed a resolution pursuant to MCL 117.9(8); MSA 5.2088(8), annexing six parcels of land from Pittsfield Township, henceforth collectively referred to as the "airport parcel”. The airport parcel is an irregularly shaped piece of land consisting of 700 acres, only 330 feet of which is physically connected with a city boundary. On January 13, 1977, Pittsfield Township commenced a proceeding in the lower court to have the annexation declared null and void.

On February 2, 1977, an Ann Arbor City Council resolution annexed a parcel of land known as the Eisenhower Parkway, which was also a part of Pittsfield Township. This parcel, which lies between Stone School Road on the west and Packard Road on the east, consists of a roadway with two westbound lanes and two eastbound lanes separated by a median. Plaintiff also requested that the court void this annexation.

Plaintiff and defendant each brought a motion for summary judgment pursuant to GCR 1963, 117.2(3) for the reason that there was no genuine issue of material fact. In addition, plaintiff moved for summary judgment under GCR 1963, 117.2(2) on the ground that the defendant had failed to state a valid defense to the claim asserted against it.

The trial court refused to decide the question of whether or not the airport parcel was used as a park, saying that there were both recreational and commercial usages of the property. The trial court did find that the attempted annexation of the airport property was not legal because it created an enclave of township property that was politically deadlocked, the creation of which amounted to gerrymandering. The trial court also found that the boundary of the attempted airport annexation was not a reasonable configuration, and was not proportionately adjacent or contiguous to the city, and so could not properly be annexed by resolution.

The trial court found that the parkway was not a park nor was it vacant property, and that its annexation would also create an illegal township enclave within city boundaries. Having made these findings, the trial court granted the plaintiff’s motion for summary judgment, thereby voiding the attempted annexation of these two properties.

MCL 117.9(8); MSA 5.2088(8) provides the procedure for an annexation by resolution when certain conditions are met:

"(8) Where the territory proposed to be annexed to any city is adjacent to the city and consists of a park or vacant property located in a township and owned by the city annexing the same, and there is no one residing thereon, such territory may be annexed to the city solely by resolution of the city council of the city * * *

The defendant city argues that the terms of the statute, with which it has complied, are exclusive. We disagree. Michigan appellate courts have traditionally held that additional factors to be considered by trial courts in annexation cases include contiguity, gerrymandering, and reasonable compactness of boundaries. Saginaw v Saginaw County Board of Supervisors, 1 Mich App 65; 134 NW2d 378 (1965), Owosso Twp v Owosso, 25 Mich App 460; 181 NW2d 541 (1970), aff'd, 385 Mich 587; 189 NW2d 421 (1971). The judiciary must apply the test of reason to insure compliance with legislative intent. Owosso Twp, supra, 25 Mich App at 467.

We conclude that the trial court in the case at bar acted properly when it examined the proposed annexations to determine whether they were reasonably contiguous with the city and whether they created illegal enclaves.

An enclave is defined as a tract of territory enclosed within a foreign territory. In Genesee Twp v Genesee County, 369 Mich 592, 603; 120 NW2d 759 (1963), the Supreme Court quoted extensively from 37 Am Jur, Municipal Corporations, § 27, and included the following observation:

"When contiguity is required by statute, the attempted consolidation of 2 municipalities which are contiguous at 2 points with an intervening space between is unlawful, since it would leave a tract of territory within but not part of the consolidated municipality.”

This has been taken as an invalidation of enclaves created by annexation. Saginaw v Saginaw County Board of Supervisors, supra.

The trial court found that the proposed airport annexation would create a triangular enclave of township surrounded by city territory. There was, thus, no error in the grant of summary judgment to the plaintiff on the proposed airport annexation.

We note that there is no evidence of improper gerrymandering in the city’s actions. As we said in Grand Haven Twp v Grand Haven (On Remand), 38 Mich App 122; 196 NW2d 3 (1972), the irregular boundaries of a proposed annexation can be explained by the fact that the city bought the property involved parcel by parcel as it became available on the public market.

The defendant City of Ann Arbor claims that it should be allowed to annex Eisenhower Parkway, which it owns in fee, according to the terms of MCL 117.9(8); MSA 5.2088(8), because it is "vacant property”. But the fact that no one does or can reside on the property does not render it vacant. According to the terms of the statute:

"(8) Where the territory proposed to be annexed to any city is adjacent to the city and consists of a park or vacant property located in a township and owned by the city annexing the same, and there is no one residing thereon, such territory may be annexed to the city solely by resolution of the city council of the city * * * .” (Emphasis added).

In construing the words of a statute, effect must be given to each part of a sentence, so as not to render any other part nugatory. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). If we said that vacant land is the same as land upon which no one resides, we would render part of the sentence in the statute redundant. According to MCL 8.3a; MSA 2.212(1), words are to be construed according to their common and approved usage. Webster’s New Collegiate Dictionary (1974 ed), p 1290, defines vacant land as that which is not put to use.

The statute requires that the land to be annexed must (a) be owned by the city and (b) consist of (1) a park or (2) land which is not resided upon and which is not being utilized for any beneficial purpose. However, the Eisenhower Parkway is in constant use as a road, and has not been abandoned. Therefore, it is not "vacant property” for purpose of the statute, and the trial court did not err in voiding the annexation.

Further, annexation of the roadway would result in the creation of an enclave of township property resided in by over 100 persons. The creation of an enclave is not permitted by Michigan courts, as we have discussed earlier.

The defendant city argues further that the plaintiffs motion for summary judgment was fatally defective because it contained some facts of which the affiant had no personal knowledge, in contradiction of the rule in Jones v Shek, 48 Mich App 530; 210 NW2d 808 (1973), and GCR 1963, 117.3, 116.4. However, we find that the other portions of the affidavit, of which the affiant did have personal knowledge, were legally sufficient to support the trial court’s decision.

Affirmed.

        See Appendix A.

        See Appendix B.

         Saginaw v Saginaw County Board of Supervisors, 1 Mich App 65, 70 (1965).


source: Caselaw Access Project

author: R. B. Burns, P.J.

license: Public Domain

text:
    WATLING, LERCHEN & CO., INC. v ORMOND (AFTER REMAND)
    Docket No. 77-1017.
    Submitted March 9, 1978, at Detroit.
    Decided October 3, 1978.
    Watling, Lerchen & Co., Inc., filed a complaint in circuit court alleging that Dennis C. Ormond owed plaintiff $15,270 for stock which it purchased for Ormond on account. Ormond alleged in a counterclaim that he was injured through the mishandling of the transaction. The court determined that it lacked subject matter jurisdiction over the counterclaim and granted the plaintiff’s motion for accelerated judgment. Ormond moved for leave to file an amended counterclaim. He alleged that the plaintiff, as a member of the New York Stock Exchange, was subject to the exchange rules, that plaintiff should have known that Ormond might be required to file certain documents with the Securities and Exchange Commission, and that the plaintiff failed in its duty to properly advise him and that as a result he had suffered loss. The Oakland Circuit Court, Farrell E. Roberts, J., denied the motion to amend. Ormond appealed, and the Court of Appeals remanded in an unpublished per curiam opinion, instructing the trial court to set forth its reasons for denial of the motion to amend. The trial court did so, and in its opinion reasoned that amendment would be futile because the amended counterclaim dealt with matters which were within the exclusive jurisdiction of the Federal courts. Held:

    The Federal law under the Securities Exchange Act is directed at fraud. The breach of duty alleged by the defendant, the violation of rules of the stock exchange, is an act of negligence. The Federal courts do not, therefore, have exclusive jurisdiction over the subject matter of defendant’s counterclaim, and the motion to amend should have been granted.
    Reversed and remanded.
    1. Securities Regulation — Stock Exchange Rules — Jurisdiction— Nature of Rules.
    A court, when faced with a decision of whether a violation of a stock exchange rule is actionable under Federal law, must look to the nature of the particular rule and its place in the regulatory scheme, with the party urging the implication of a Federal liability carrying a considerably heavier burden of persuasion than when the violation is of a Federal statute or of a Security and Exchange Commission regulation.

      References for Points in Headnotes
    [1] 69 Am Jur 2d, Securities Regulation — Federal §§ 537-566.
    [2] 69 Am Jur 2d, Securities Regulation — Federal § 460 et seq.

    [3] 69 Am Jur 2d, Securities Regulation — Federal § 546.

      2. Securities Regulation — Stock Exchange Rules — Due Diligence —Fraud—Negligence—Federal Law.
    Violation of a stock exchange rule requiring members of the exchange to use due diligence to learn the essential facts relative to every customer and order is not per se actionable under Federal law; the Federal law is directed to fraud, not mere negligence, therefore, the facts involved in the rule violation must minimally be tantamount to fraud in order to state a Federal cause of action.
    3. Securities Regulation — Courts—Jurisdiction—Negligence.
    A defendant’s counterclaim against a stockbroker which alleges negligence in a stock transaction is not subject to exclusive jurisdiction of the Federal courts; therefore, a circuit court’s grant of the plaintiffs motion for accelerated judgment on the counterclaim and denial of defendant’s motion to amend the counterclaim, for lack of jurisdiction over the claim was erroneous.

      Dickinson, Wright, McKean, Cudlip & Moon (by J. Bryan Williams and Shelley D. Roberts), for plaintiff.

      Bodman, Longley, Bogle & Dahling (by Richard D. Rohr and James J. Walsh), for defendant.
    Before: R. B. Burns, P.J., and Bronson and D. F. Walsh, JJ.
   After Remand

R. B. Burns, P.J.

Plaintiff filed a complaint in circuit court alleging that it had purchased 1000 shares of American Agronomics Corporation stock on account for defendant, and was owed $15,270 for the stock. Defendant answered, and counterclaimed, alleging he was injured through plaintiff’s mishandling of the transaction. The trial court granted plaintiff’s motion for accelerated judgment on the counterclaim, upon determining that it lacked subject matter jurisdiction over the claim.

Defendant moved for leave to file an amended counterclaim. In the amended counterclaim defendant alleges that he was without knowledge of the law and rules regarding purchase of securities, and that plaintiff’s agents had alleged that they had expertise in the purchase of securities and related matters. Defendant further alleges that plaintiff was a member of the New York Stock Exchange and American Stock Exchange, and subject to exchange rules that it know the essential facts about each customer and order; that plaintiff knew or should have known that defendant’s sister and brother-in-law were major stockholders in American Agronomics Corporation, and as a consequence defendant might be required to file a schedule 13-D with the Securities and Exchange Commission in connection with the purchase, and be restricted in reselling the stock. Defendant alleges that plaintiff had a duty to advise defendant of the legal ramifications of the purchase, to file a schedule 13-D, or to consult with an attorney; failed to so advise; and as a result, defendant has been sued by the Securities and Exchange Commission and various other parties, has been enjoined from selling his stock as it has declined in value, and has been subjected to adverse publicity.

Defendant’s motion for leave to file an amended counterclaim was denied by the trial court. Defendant appealed, and this Court remanded to the trial court with instructions to set forth the reasons for the denial of defendant’s motion. Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656-657; 213 NW2d 134, 137 (1973). The trial court filed an opinion explaining that it had denied the motion because the amended counterclaim was legally insufficient on its face, and amendment would, therefore, be futile. Ben P Fyke & Sons v Gunter Co, supra. The trial court reasoned that the duty alleged to have been breached by plaintiff derives from exchange rules rather than common law, and therefore exclusive jurisdiction over the claim resides in Federal courts. 15 USC 78aa. We reverse.

15 USC 78aa provides in part that,

"[t]he district courts of the United States, and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have exclusive jurisdiction of violations of this chapter or the rules and regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by this chapter or the rules and regulations thereunder”.

However,

"[t]he rights and remedies provided by this chapter shall be in addition to any and all other rights and remedies that may exist at law or in equity * * * ”. 15 USC 78bb.

Thus, if the duty alleged to have been violated by plaintiff was created by the Securities Exchange Act of 1934 or "the rules and regulations thereunder”, and does not exist "at law or in equity”, the Federal courts have exclusive jurisdiction.

"This is not meant to suggest that it was the intent of Congress, in enacting the statute in question, to preempt common-law rights which might have been fully adjudicated and enforced in a State court before the act was passed. A more likely construction of the statute is that it confers exclusive jurisdiction on Federal courts to entertain only those actions which involve some right of recovery which goes beyond such common-law rights. * * * Both State and Federal courts recognize that a common-law action giving rise to a private civil remedy enforcible in the State courts may arise out of violations of the provisions of the act * * * .” McCollum v Billings, 53 Misc 2d 661, 664-665; 279 NYS2d 609, 614 (Sup Ct, 1967). (Citation omitted.)

"[Rjules and regulations thereunder”, 15 USC 78aa, refers to Securities and Exchange Commission rules, not stock exchange rules. Starkman v Seroussi, 377 F Supp 518, 523 (SD NY, 1974). However, stock exchange rules are promulgated as a condition of registration, 15 USC 78f(d), and may amount to a substitute for regulation by the Securities and Exchange Commission. Colonial Realty Corp v Bache & Co, 358 F2d 178, 182 (CA 2, 1966), cert den, 385 US 817; 87 S Ct 40; 17 L Ed 2d 56 (1966), Starkman v Seroussi, supra. Depending upon the rule and the circumstances, a violation of an exchange rule may be actionable as a violation of a "duty created by this chapter”, 15 USC 78aa. Starkman v Seroussi, supra.

In determining whether violation of a stock exchange rule is actionable under Federal law,

"the court must look to the nature of the particular rule and its place in the regulatory scheme, with the party urging the implication of a federal liability carrying a considerably heavier burden of persuasion than when the violation is of the statute or an SEC regulation. The case for implication would be strongest when the rule imposes an explicit duty unknown to the common law.” Colonial Realty Corp v Bache & Co, supra, 182.

In part this reluctance to find per se Federal liability for violation of exchange rules is due to the unlikelihood that Congress intended to create a new body of Federal broker-customer law, thereby stripping state courts of the power to adjudicate claims between brokers and customers. Colonial Realty Corp, supra at 183.

The exchange rules relied upon by defendant in his counterclaim require members of the exchanges to use due diligence to learn the essential facts relative to every customer and order. New York Exchange Rule 405, American Stock Exchange Rule 411. Although Federal courts are split on the issue of whether violation of Rule 405, and by implication Rule 411, may ever state a cause of action, compare Buttrey v Merrill Lynch, Pierce, Fenner & Smith, Inc, 410 F2d 135, 142-145 (CA 7, 1969), cert den, 396 US 838; 90 S Ct 98; 24 L Ed 2d 88 (1969), with Nelson v Hench, 428 F Supp 411, 417-420 (D Minn, 1977), it is clear that violations of Rule 405 are not per se actionable. Rather, because the Securities Exchange Act is directed to fraud, not mere negligence, the facts involved in the rule violation must minimally be "tantamount to fraud” to state a Federal cause of action. See Buttrey, supra at 143, Wells v Blythe & Co, Inc, 351 F Supp 999 (ND Cal, 1972), Hecht v Harris, Upham & Co, 283 F Supp 417, 430 (ND Cal, 1968), aff'd as modified, 430 F2d 1202 (CA 9, 1970).

Defendant’s counterclaim alleges negligence, not fraud. As a consequence, Federal courts do not have exclusive jurisdiction over the counterclaim.

Plaintiff argues that the counterclaim fails to state a cause of action under state law, first, because there are no prior cases stating that a broker owes its customers a duty to advise of legal complications involved in a stock transaction, and second, such a duty would amount to a requirement that it engage in the unauthorized practice of law.

" 'The court should be especially reluctant to dismiss on the basis of the pleadings when the asserted theory of liability is novel or extreme, since it is important that new legal theories be explored and assayed in the light of actual facts rather than a pleader’s suppositions.’ ” Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426, 430; 202 NW2d 577, 580 (1972), quoting 5 Wright & Miller, Federal Practice & Procedure, § 1357, p 603.

The absence of prior reported cases on broker negligence certainly does not mean brokers are under no duty to their customers to refrain from careless infliction of injury. Rather, plaintiffs objection that it is under no duty to warn about the legal implications of a purchase, to file a schedule 13-D, or consult an attorney really goes to the issue of specific standard of care, not duty, and is properly a question for a jury. Moning v Alfono, 400 Mich 425; 254 NW2d 759 (1977). We need not discuss at this point the extent of advice regarding legal complications about which a broker might be required to give a client in light of the unauthorized practice statute, MCL 600.916; MSA 27A.916, since defendant has alleged that plaintiff failed to advise him to consult an attorney, which would clearly not be unauthorized practice.

Reversed and remanded.


author: W. Van Valkenburg, J.

text:
    STRUBLE v. DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE
    Docket No. 77-4250.
    Submitted June 12, 1978, at Grand Rapids.
    Decided October 3, 1978.
    Leave to appeal denied, 406 Mich —.
    Plaintiff Juanita Struble, a housewife, was injured in an automobile accident. She sued her husband’s insurer, defendant Detroit Automobile Inter-Insurance Exchange, for personal protection benefits claiming that as a result of her injuries she suffered a loss of earning capacity entitling her to benefits under the wage-loss section of the no-fault act. Defendant moved for summary judgment for failure to state a claim for which relief can be granted. The Berrien Circuit Court, William S. White, J., granted summary judgment. Plaintiff appeals. Held:

    1. The section of the no-fault act allowing for compensation for loss of income does not extend to loss of earning capacity but applies only to work loss consisting of lost income from work that an injured person would have performed if no injury had occurred.
    2. That section is not unconstitutional as being violative of equal protection.
    Affirmed.
    1. Statutes — Construction—State Legislature — Legislative Meaning.
    The Legislature must be held to intend the meaning which it has plainly expressed, and in such cases there is no room for construction or attempted interpretation to vary such meaning.
    2. Statutes — State Legislature — Legislative Power — Abrogation of Common-Law.
    The Legislature possesses the right to extinguish a common-law measure of damages by appropriate language.
    References for Points in Headnotes
    [1] 73 Am Jur 2d, Statutes §§ 204-208.
    [2] 73 Am Jur 2d, Statutes § 185.
    [3, 7] Am Jur 2d, New Topic Service, No-Fault Insurance § 29.
    [4] 16 Am Jur 2d, Constitutional Law §§ 335, 485-493.
    [5] 16 Am Jur 2d, Constitutional Law § 488.

      3. Automobiles — Statutes—No-Fault Act — Work Loss — Loss of Earning Capacity.
    The Legislature intended to provide damages for work loss only and not for loss of earning capacity in enacting the work loss section of the no-fault act (MCL 500.3107[b]; MSA 24.13107[b]).
    4. Constitutional Law — Equal Protection.
    Equal protection of the law requires that all persons subject to particular legislation be treated alike under like circumstances and conditions, but the guarantee of equal protection of the law is not one of equality of operation or application to all citizens of the state (US Const, Am XIV, Const 1963, art 1, §§ 1, 2).
    5. Constitutional Law — Equal Protection — Classification.
    The Equal Protection Clause precludes irrational discrimination as between persons or groups of persons in the incidence of a law but does not require situations which are different in fact or opinion to be treated in law as though they were the same and permits reasonable legislative classification based on substantial distinctions germane to the purpose of the law (US Const, Am XIV, Const 1963, art 1, § 2).
    6. Constitutional Law — Fourteenth Amendment — Equal Discretion — Automobiles—Statutes—No-Fault Act.
    The Legislature has wide discretion as to classification, and under the Fourteenth Amendment a distinction in legislation is not arbitrary if any state of facts can reasonably be conceived which would sustain it; therefore, the rule of equality permits many practical inequalities and what satisfies equality cannot be precisely defined; this test is applicable to Michigan’s no-fault act (US Const, Am XIV; MCL 500.3101 et seq.; MSA 24.13101 et seq.).

    7. Constitutional Law — Equal Protection — Automobiles—Statutes — No-Fault Act.
    The statute allowing compensation to those injured in automobile accidents for actual work loss and not for loss of earning capacity is not violative of the equal protection requirement of the Constitution (MCL 500.3107[b]; MSÁ 24.13107[b]).

      Sloan, Zarbock & Risdon (by William L. Benefiel), for plaintiff.

      Butzbaugh, Page, Butzbaugh & Dewane, for defendant.

      Before: D. E. Holbrook, Jr., P.J., and T. M. Burns and W. Van Valkenburg, JJ.

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

   W. Van Valkenburg, J.

New and complex legislation, such as 1972 PA 294, often provides a fertile breeding ground for interpretative litigation. The present case is illustrative of that situation as this Court is called upon to interpret the intention of the Legislature when it enacted MCL 500.3107(b); MSA 24.13107(b). That legislation reads in pertinent part as follows:

"Work loss consisting of loss of income from work an injured person would have performed during the first 3 years after the date of the accident if he had not been injured and expenses not exceeding $20.00 per day, reasonably incurred in obtaining ordinary and necessary services in lieu of those that, if he had not been injured, an injured person would have performed during the first 3 years after the date of the accident, not for income but for the benefit of himself or of his dependent.”

The present controversy centers around the word "would” and its meaning in the context of that statute.

Plaintiff, a housewife, alleged in her complaint that she sustained disabling injuries as a result of an automobile accident on May 9, 1975. By virtue of an insurance policy issued by defendant to her husband, she claimed personal protection benefits as set forth therein.

She presented the following allegation in paragraph 6 of her complaint:

"As a result of the injuries sustained in the described accident, Plaintiff suffered a loss of earning capacity entitling her to benefits under Sec. 3107 of the No-Fault Act, for wage loss benefits from the date of the accident for a period of three years.”

Defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), on the ground that plaintiff had failed to state a claim upon which relief could be granted. Defendant’s theory was that the statute provided no benefits for loss of earning capacity but only for work loss consisting of lost income from work that an injured person would have performed if no injury had occurred.

The trial court, after receiving the parties’ briefs, granted defendant’s motion, stating in part as follows:

"The court feels that the language of the statute is clear and unambiguous. It was the legislative’s [sic] intent to provide benefits, only for actual work loss sustained. It must be presumed * * * that the legislature was fully cognizant of the law, case law, common law, court law, if you please, that existed in Michigan at the time that they enacted the no-fault statute.”

Therefore, this issue is centered on the single question of whether the Legislature intended to include loss of earning capacity as a part of the benefits. The trial judge held that it did not. We agree.

First, we should note that the word "would” is the past tense of "will” and more particularly defined in Safety Cab, Inc v Ferguson, 137 Ind App 644, 651; 205 NE2d 827 (1965):

"The Oxford English Dictionary, Vol. XII, p. 137, meaning no. 42 defines the word 'would’ as 'expressing merely a possibility or contingency in the supposed case’. Black’s Law Dictionary, 4th Ed., p. 1782, defines the word 'would’ as 'a word sometimes expressing what might be expected. Often interchangeable with the word "should”.’ ”

No definition of the word has been located in Michigan cases, but the Supreme Court in Prince v Lott, 369 Mich 606, 610; 120 NW2d 780 (1963), did infer that it would follow the usual meaning when it was held that:

"Defendants would not have been entitled to an instruction of the kind suggested had they requested it because the factor to be considered in determining such damages is not what plaintiff would have but what he could have earned but for the injury. It is the loss of earning capacity for which damages are to be awarded.”

The law is well established that when the language of a statute is clear and unambiguous no interpretation need or can be made. Jones v Grand Ledge Public Schools, 349 Mich 1; 84 NW2d 327 (1957), Acme Messenger Service Co v Unemployment Compensation Comm, 306 Mich 704, 709; 11 NW2d 296 (1943), Murray v Ferris, 74 Mich App 91, 94; 253 NW2d 365 (1977); Schigur v Secretary of State, 73 Mich App 239, 243; 251 NW2d 567 (1977), Gregory Boat Co v Detroit, 37 Mich App 673, 676; 195 NW2d 290 (1972); Collins v Motorists Mutual Ins Co, 36 Mich App 424, 430; 194 NW2d 148 (1971).

An extension of that rule was promulgated by the Supreme Court in MacQueen v City Comm of Port Huron, 194 Mich 328, 342; 160 NW 627 (1916). There the Court held:

"It is a cardinal rule that the legislature must be held to intend the meaning which it has plainly expressed, and in such cases there is no room for construction, or attempted interpretation to vary such meaning.”

Further, plaintiff contends that the common-law tort rule should not be considered as abrogated unless there is a clear intent to do so. There is little argument about this principle. 73 Am Jur 2d, Statutes, § 181, p 384. However, plaintiffs reliance upon Garwols v Bankers Trust Co, 251 Mich 420, 427; 232 NW 239 (1930), is misplaced. There an illegitimate son, and sole heir, murdered his mother with the thought that he would inherit her estate and thereafter be able to marry a woman who had rejected him because of his poverty. The conclusion of the Court is self-explanatory:

"The omission to so foresee and to provide therefor cannot be presumed to work a repeal of the fundamental rule of the common law under which this murderer is disabled from inheriting. By so holding we are not grafting an exception into the statute by construction, but we are construing the statute according to the obvious intent of the legislature.”

The law is clear that the Legislature possesses the right to extinguish the common-law measure of damages by appropriate language. "A statute which expressly extinguishes a common-law right is a proper exercise of legislative authority. Bean v McFarland, 280 Mich 19; 273 NW 332 (1937).” Dole v Oosting, 82 Mich App 291, 297; 266 NW2d 795 (1978).

This Court in Shavers v Attorney General, 65 Mich App 355, 366; 237 NW2d 325 (1975), aff'd in part, rev’d in part, 402 Mich 554; 267 NW2d 72 (1978), stated, "Common law remedies are not sacrosanct * * * and their replacement by other means of redress is within the Legislature’s prerogative”. (Citations omitted).

The Supreme Court in Boyer v Backus, 282 Mich 701, 704; 280 NW 756 (1938), said, "[b]ut the common law does not remain in force if it appears that the rule has been changed by statute”.

Further evidence of the Legislature’s intent can be gleaned from the title of the act. Kalee v Dewey Products Co, 296 Mich 540, 545; 296 NW 826 (1941). The title of 1972 PA 294, reads in part: "An act * * * to modify tort liability arising out of certain accidents; to require security for losses arising out of certain accidents * * * ”.

Additionally, the Legislature by the enactment of 1975 PA 311, being MCL 500.3107a; MSA 24.13107(1), which provides for payment to one temporarily unemployed on the basis of earned income during the last month in which he was working full time, clearly indicates that loss of earning capacity was not to be compensated.

The discussion in Harper v Progressive Casualty Ins Co, 79 Mich App 764, 766-767; 263 NW2d 1 (1977), is very helpful in determining the legislative intent. As explained therein, the Legislature must have been "familiar with the intention ascribed by the drafters” of the uniform motor vehicle accident reparation act, 13 Uniform Laws Annotated 358, 362, § l(5)(ii) as § 3107(b) is copied almost verbatim therefrom. The drafters of the uniform act made known their intentions in no uncertain terms:

" 'Work loss’, as are the other components of loss, is restricted to accrued loss, and thus covers only actual loss of earnings as contrasted to loss of earning capacity. Thus, an employed person suffers no work loss from injury until the time he would have been employed but for his injury.” 13 Uniform Laws Annotated 358, 362; comments to § l(5)(ii) of the uniform act.

Finally, our decision in the present case is supported by this Court’s decision in Nawrocki v Hawkeye Security Ins Co, 83 Mich App 135; 268 NW2d 317 (1978), which, while varying factually from the present case, comes to the same result.

Therefore, by virtue of the above definitions and the authorities hereinbefore cited, we conclude that the trial judge was correct in holding that the Legislature intended to provide damages for work loss only and not for loss of earning capacity.

Plaintiff next contends that the trial court’s interpretation of MCL 500.3107(b); MSA 24.13107(b) denied her equal protection of the law under both the United States and Michigan Constitutions.

The equality of rights protected by our state constitution is the same as that protected and preserved by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Const 1963, art 1, §§ 1 and 2; US Const, Am XIV.

The purpose of the Equal Protection Clause of the Fourteenth Amendment is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper execution by duly constituted agents. Fox v Employment Security Comm, 379 Mich 579, 588; 153 NW2d 644 (1967). Equal protection of the law requires that all persons subject to particular legislation be treated alike under like circumstances and conditions, but the guarantee of equal protection of the law is not one of equality of operation or application to all citizens of the state. Grayson v Board of Accountancy, 27 Mich App 26, 31-32; 183 NW2d 424 (1970). The Equal Protection Clause precludes irrational discrimination as between persons or groups of persons in the incidence of a law but does not require situations which are different in fact or opinion to be treated in law as though they were the same. Goesaert v Cleary, 335 US 464; 69 S Ct 198; 93 L Ed 163 (1948).

Accordingly, equal protection of the law does not prevent, and is not violated by, a reasonable classification by legislative enactment if it applies alike to all persons within such class and reasonable grounds exist for making the distinction between those who fall within such class and those who do not. People v Palazzolo, 62 Mich App 140, 146; 233 NW2d 216 (1975). A classification must be based on substantial distinctions and be germane to the purpose of the law. Manistee Bank & Trust Co v McGowan, 394 Mich 655, 665-672; 232 NW2d 636 (1975), Fox v Employment Security Comm, supra.

The Legislature has wide discretion as to classification, and under the Fourteenth Amendment a distinction in legislation is not arbitrary if any state of facts can reasonably be conceived that would sustain it. Therefore, the rule of equality permits many practical inequalities and what satisfies equality cannot be precisely defined. Goesaert v Cleary, supra. A classification does not violate the Equal Protection Clause unless it is so lacking in an adequate or reasonable basis as to preclude an assumption that legislative discretion was exercised. Kriger v South Oakland County Mutual Aid Pact, 49 Mich App 7, 10-11; 211 NW2d 228 (1973), rev’d on other grounds, 399 Mich 835; 250 NW2d 67 (1977).

The United States Supreme Court has traditionally applied two tests in determining the validity of legislation in equal protection cases. If the interest is "fundamental” or the classification is "suspect”, a "strict scrutiny” test is applied requiring the state to show a compelling interest which justifies the classification. Other legislation, principally social and economic, is subjected to review under the traditional equal protection test discussed above. Under that test, the burden is on the person challenging the classification to show that it is without reasonable justification. Manistee Bank & Trust Co v McGowan, supra.

This two-tiered approach to equal protection analysis, which was developed in the 1960’s, is still applied today. However, recent cases have not embraced the rigid attitude adopted by earlier cases toward the two-level approach, in which application of scrutiny that was "strict” in theory in fact proved fatal to the legislation in question and application of the traditional rational basis test with minimal scrutiny in theory meant no scrutiny in fact. Recently, a significant shift has taken place in the operation of equal protection law. A mounting discontent with the two-tier approach has been manifested in the Court. Craig v Boren, 429 US 190; 97 S Ct 451; 50 L Ed 2d 397 (1976).

This growing discontent has resulted in recent years in the adoption of an intermediate test which is applied in certain equal protection cases. Under this intermediate test, the classification must rest upon some ground of difference which has a fair and substantial relation to the object of the legislation. Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971), Schigur v Secretary of State, 73 Mich App 239, 245; 251 NW2d 567 (1977). The result is that the Court is less willing to supply justifying rationales by exercising its imagination, as is the case when the rational basis test is applied, and more certain to assess the means in terms of legislative purposes that have substantial basis in actuality, not merely in conjecture.

In determining the constitutionality of § 3107(b) it is necessary to first determine the applicable equal protection test to be applied. In the present case, the classification made by the Legislature draws a distinction between those injured individuals who would suffer an actual work loss and those who would not. There is no "suspect” classification involved nor is there a "fundamental” interest. Therefore, the "strict scrutiny” test is inapplicable.

Since the no-fault legislation is new and still deemed experimental, the "fair-and-substantial-relation-to-the-object-of-the-legislation” test is not applicable, but instead the traditional equal protection analysis must be used. Richardson v Belcher, 404 US 78; 92 S Ct 254; 30 L Ed 2d 231 (1971), Shavers v Attorney General, 402 Mich 554; 267 NW2d 72 (1978), Manistee Bank & Trust Co v McGowan, supra, Schigur v Secretary of State, supra, McKendrick v Petrucci, 71 Mich App 200; 247 NW2d 349 (1976).

In applying the "rational basis” test, the inquiry has traditionally focused upon the character of the classification in question, the relative importance of the governmental benefits that they do not receive to the individuals in the class discriminated against, and the state interest asserted in support of the classification. Massachusetts Bd of Retirement v Murgia, 427 US 307; 96 S Ct 2562; 49 L Ed 2d 520 (1976). Here the state interest is to provide recovery to those persons who have sustained an actual wage loss resulting from an automobile accident and to allow for reduced insurance rates. There is a rational relation between the legislative objective and § 3107(b), even under the interpretation made by the trial court in the present case. Under that section, recovery is only allowed where it can be shown that there was an actual work loss.

It must be remembered that even though a legislative solution appears undesirable, unfair, unjust or inhumane, this in and of itself does not empower a court to override the Legislature and substitute its own solution. A legislative classification need not be drawn with mathematical nicety, and rough approximations will do. Statutes are cloaked with a presumption of constitutional validity and the burden of rebutting that presumption is on the person challenging the statute. Manistee Bank & Trust Co v McGowan, supra, Schigur v Secretary of State, supra. That presumption was not rebutted in the present case and § 3107(b) is, therefore, not unconstitutional.

It is further argued by plaintiff that the trial judge considered factual matters not set forth in the complaint in deciding the motion for summary judgment pursuant to GCR 1963, 117.2(1).

First, it should be noted that counsel for defendant, both in his brief and oral arguments, has vehemently denied that the trial court considered factual matters not contained within the complaint.

The rule is well settled that such a motion will be tested by the pleadings alone which must be considered as true. Todd v Biglow, 51 Mich App 346, 349; 214 NW2d 733 (1974).

Nevertheless, whether the statement in the judge’s opinion that "the facts are clear” was inadvertently made or not is immaterial. Plaintiff in paragraph 6 of her complaint merely alleges "a loss of earning capacity” and does not claim any damages for work loss.

Therefore, the trial court, having determined that the statute was clear and unambiguous and covered only loss of wages resulting from an automobile accident, was free to conclude that the complaint failed to state a claim upon which relief could be granted. Any possible reference to the facts under these circumstances would be harmless error. Bostrom v Jennings, 326 Mich 146, 158; 40 NW2d 97 (1949).

Affirmed. No costs, an interpretation of a statute being involved.


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

text:
    STEVENS v STEVENS
    Docket Nos. 77-4305, 78-1039.
    Submitted June 22, 1978, at Detroit.
    Decided October 3, 1978.
    Todd R. Stevens was born to Katherine M. Stevens and David G. Stevens. Plaintiff Katherine Stevens later filed for a divorce from defendant, David Stevens. While the divorce action was pending, plaintiff petitioned the Wayne Probate Court to have Dale Stevens and his wife Jeannie Stevens, Todd’s paternal uncle and aunt, appointed as guardians for the child, who suffers from cerebral palsy. The Wayne Probate Court, Ernest C. Boehm, J., granted the plaintiff’s petition. A default judgment of divorce was subsequently entered by the Wayne Circuit Court, Thomas J. Foley, J. Custody of the child was awarded to the plaintiff but actual custody was to remain with the co-guardians until further order of the court. Plaintiff then sought a modification of the divorce judgment, seeking actual custody of Todd. The Wayne Circuit Court then entered an interim order granting the plaintiff certain visitation rights, Theodore R. Bohn, J. The judgment of divorce was later modified so that the actual custody of Todd was to be returned to the plaintiff, Virginia A. Sobotka, J. Appellants, Dale and Jeannie Stevens, appeal from the orders modifying the judgment of divorce relative to custody and to visitation rights. Cases consolidated on appeal. Held:

    Courts sitting without a jury have a duty to make findings of fact specially and to state separately their conclusions of law thereon. A trial court must consider, evaluate, and determine all the factors enumerated in the Child Custody Act in determining the best interests of a child involved in a custody dispute. The child’s reasonable preference as between the parties must be taken into account by the trial court when it examines the best interests of the child to see where custody shall reside where the court deems the child to be of sufficient age to express such a preference. It is presumed that the best interests of the child are served by awarding custody to the parent or parents, in a child custody dispute between the parent or parents and an agency or third person, unless the contrary is established by clear and convincing evidence that the best interests of the child are served by awarding custody to the third party. The established custodial environment of a child should not be changed absent clear and convincing evidence that it is in the best interest of the child. Disputes over visitation rights are governed by the Child Custody Act which requires a trial court to take the best interests of a child into account when ruling on visitation rights. The trial court did not make certain findings of fact in determining the best interests of the child in accordance with the requirements of the Child Custody Act and, therefore, erred in modifying the plaintiffs visiting rights.

      References for Points in Headnotes
    [1] 20 Am Jur 2d, Courts § 67.
    [2, 6] 42 Am Jur 2d, Infants § 42 et seq.

    59 Am Jur 2d, Parent and Child §§ 32, 41.
    [3] 42 Am Jur 2d, Infants § 43.
    [4] 24 Am Jur 2d, Divorce and Separation § 784.
    42 Am Jur 2d, Infants § 44.
    Child’s wishes as factor in awarding custody. 4 ALR3d 1396.
    [5] 59 Am Jur 2d, Parent and Child § 26.
    [7] 59 Am Jur 2d, Parent and Child § 45.
    Visitation rights of persons other than natural or adoptive parents. 98 ALR2d 325.

      Reversed and remanded.
    1. Courts — Sitting Without Jury — Findings op Fact — Conclusions of Law — Court Rules.
    Courts sitting without a jury have a duty to make findings of fact specially and to state separately their conclusions of law thereon (GCR 1963, 517.1).
    2. Infants — Divorce—Child Custody — Child Custody Act — Factors — Best Interests — Statutes.
    A trial court must consider, evaluate and determine all the factors enumerated in the Child Custody Act in determining the best interests of a child involved in a custody dispute (MCL 722.23; MSA 25.312[3j).
    3. Appeal and Error — Findings of Fact — Abuses of Discretion— Legal Errors.
    All orders and judgments of a circuit court made in a child custody dispute 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]).

      4. Infants — Divorce—-Child Custody — Child’s Reasonable Preference — Statutes.
    A trial judge’s failure to speak with the child involved in a custody dispute in order to ascertain the child’s reasonable preference as between the parties to the dispute generally requires remand; this factor must be taken into account by the trial court when it evaluates the best interests of the child to see where custody shall reside where the court deems the child to be of sufficient age to express a preference (MCL 722.23; MSA 25.312[3]).
    5. Infants — Divorce—-Child Custody — Parents—Third Parties— Best Interests — Presumptions—Statutes.
    It is presumed that the best interests of the child are served by awarding custody to the parent or parents, in a child custody dispute between the parent or parents and an agency or a third person, unless the contrary is established by clear and convincing evidence; the presumption is rebutted where clear and convincing evidence establishes that the best interests of the child are served by awarding custody to the third party (MCL 722.25; MSA 25.312[5]).
    6. Infants — Divorce—Child Custody — Best Interests — Evidence— Statutes.
    The established custodial environment of a child should not be changed absent clear and convincing evidence that it is in the best interest of the child (MCL 722.27[c]; MSA 25.312[7][c]).
    7. Infants — Visitation Rights — Child Custody Act — Child’s Best Interests — Statutes.
    Disputes over visitation rights are governed by the Child Custody Act which requires the trial court to take the best interests of the child into account when ruling on visitation rights (MCL 722.27[b]; MSA 25.312[7][b]).

      Frank R. Langton & Associates, P.C. (by David W. Martin), for plaintiff.

      Fred Checkaway, for co-guardians.
    Before: R. M. Maher, P.J., and J. H. Gillis and McGregor, JJ.

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

   R. M. Maher, P.J.

The appellants herein appeal from two trial court orders. One dated November 2, 1977, transferred custody of appellants’ nephew, Todd Stevens, to plaintiff, Katherine Stevens, Todd’s natural mother. The other order, dated March 22, 1978, modified plaintiff’s visitation rights.

Todd Richard Stevens was born on June 29, 1972, to Katherine Stevens, plaintiff herein, and David Stevens. Katherine filed for divorce in January, 1974. Three days after filing for divorce, plaintiff petitioned the Wayne County Probate Court to have appellants, Dale Stevens and his wife Jeannie Stevens, Todd’s paternal uncle and aunt, appointed as co-guardians for her son, who suffers from cerebral palsy. Mr. and Mrs. Stevens have had physical custody ever since.

On January 23, 1975, a default judgment of divorce was entered. Custody of Todd was awarded to plaintiff, Katherine Stevens, who allowed her son to remain with Dale and Jeannie Stevens.

On July 16, 1976, plaintiff petitioned the trial court for a change of custody, asking that complete custody be returned to her. The court referred the matter to the Friend of the Court for his report and recommendation. During the course of the investigation, the trial court entered an order granting plaintiff the right to visit Todd one day every weekend for three hours at appellants’ house while this action was pending. The mother rarely visited the child.

The report of the Friend of the Court recommended that the established custodial environment of the child should not be changed. But the trial court, after holding a hearing and upon review of the Friend of the Court’s recommendation, ordered that custody of Todd be returned to his natural mother, the plaintiff. Dale Stevens and his wife appealed and moved for a stay of execution, which was granted by this Court. On March 22, 1978, the trial court entered an interim order modifying the visitation rights. Plaintiff could visit Todd one weekend a month away from the custodial home. The visitation order also provided that plaintiff could visit Todd for one week, from June 10 to June 18, 1978, away from the custodial home.

We turn first to the assertion of the appellants that in making its decision the trial court did not make specific independent evidentiary findings of fact and conclusions of law. GCR 1963, 517.1 imposes on courts, sitting without juries, the duty to make findings of fact specially and to state separately their conclusions of law thereon. Moreover, the Child Custody Act requires the trial court to consider, evaluate and determine all the factors enumerated in the act at MCL 722.23; MSA 25.312C3).

Proper fact findings are essential in child custody cases. Zawisa v Zawisa, 61 Mich App 1; 232 NW2d 275 (1975). Definite findings of fact and conclusions of law must be made if the explicit standard for appellate review of child custody orders provided in the act is to be meaningful. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977). Under the statutory standard 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.

In the case at bar, the trial judge, before ruling, disclosed that he had read the entire summary of the Friend of the Court and his recommendation. In his ruling, the judge apparently relied on the findings in the reports prepared by the Friend of the Court. Because of this judicial reliance, the Friend of the Court’s findings should be examined to ascertain if they comport with the mandate of MCL 722.23. See Hilbert v Hilbert, 57 Mich App 247; 225 NW2d 697 (1974).

In his findings, the Friend of the Court thoroughly examined seven of the factors in MCL 722.23. He did not specifically address the home, school and community record of the child, but testimony at the hearing conducted by the Friend of the Court asserted that the home, school and community development of the child was normal.

Nor did the judge elicit from Todd his reasonable preference as required in MCL 722.23(i). The report of the Friend of the Court likewise lacked an expression of Todd’s preference. The failure of the trial judge to speak with the child or at least to set out his reasons for not speaking with the child, generally requires remand. In re Custody of James B, 66 Mich App 133; 238 NW2d 550 (1975). We deem the fact findings in this case, based as they were on the explicit fact findings of the Friend of the Court, to be sufficient, with the exception of the trial judge’s failure to interview Todd as to his preference. Before discussing the consequences of that failure, it is necessary for us to consider another of appellants’ allegations of error.

Appellants claim that the ruling of the trial court, granting custody to Todd’s natural mother, is against the great weight of the evidence. But we must grapple here not so much with a factual evidentiary question as with two competing legal presumptions. The trial court’s ruling was based on a statutory presumption which favors the natural parent in certain custody cases. The judge held MCL 722.25; MSA 25.312(5) applicable. That section provides:

"When the dispute is between the parents, between agencies or between third persons the best interests of the child shall control. When the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence.”

The competing statutory presumption is contained in MCL 722.27(c); MSA 25.312(7)(c), which states:

"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. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in such environment for guidance, discipline, the necessities of life and parental comfort. The age of the child, the physical environment and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.” (Emphasis supplied.)

Contrary to what the trial judge did in his decision, the Friend of the Court had applied MCL 722.27(c), viewing the custody proceedings as an attempted change in the established custodial environment of the child. The trial judge, on the other hand, concluded that appellants’ custody of Todd was intended as a temporary arrangement and that, therefore, MCL 722.27(c) did not apply. In utilizing MCL 722.25, the trial court held that appellants had not presented evidence to rebut the presumption in favor of the natural mother.

In Baldwin v Baldwin, 56 Mich App 489; 224 NW2d 116 (1974), a panel of this Court dealt with the competing provisions of MCL 722.25 and 722.27. The Baldwin Court concluded that custody will be awarded to the natural parent, in a child custody suit between a parent and a third party, when no clear and convincing evidence is presented to rebut the statutory presumption that favors the parent, even though the established custodial environment of the child will be changed thereby. The Court stated that no real evidence was presented to demonstrate any deficiency in the natural parent’s willingness or ability to provide those factors which are to be considered in evaluating and determining the best interests of the child. The suggestion, both in the Baldwin language and in the cases it cites for support* is that only a finding of unfitness on the part of the natural parent could rebut the presumption contained in MCL 722.25.

In Bahr v Bahr, 60 Mich App 354; 230 NW2d 430 (1975), this Court confronted the interplay of the two presumptions. In that case the Court held:

"Still recognized, of course, is the presumption that the best interests of the child would be served by granting custody to the natural parent. MCLA 722.25, supra. Indeed this remains a presumption of the strongest order and it must be seriously considered and heavily weighted in favor of the parent. Nevertheless if the 'clear and convincing evidence’ establishes that the best interest of the child is served by awarding custody to the third party, the presumption is rebutted.” 60 Mich App at 359. (Emphasis supplied.)

The Court went on to say that rebuttal of the presumption in favor of parental custody no longer requires proof of parental unfitness, neglect, or abandonment. According to the Court, the Child Custody Act of 1970 repudiated such a doctrine as well as those cases, cited in Baldwin, which espoused the doctrine.

We agree with the Court in Bahr. The overriding concern of the Child Custody Act of 1970 and, for that matter, of all child custody litigation is the best interests of the child. That concern is not addressed when there exists a presumption in favor of parental custody which can be rebutted only by a showing of unfitness. In a case such as Baldwin, the best interests of the child become subservient to the rights of the parent. We do not believe that is what the Legislature intended. The presumption in favor of the natural parent is rebutted if clear and convincing evidence establishes that the best interests of the child are served by awarding custody to the third party.

In re Maria S. Weldon, 397 Mich 225; 244 NW2d 827 (1976), a case in which five of the Justices participated, suggests that three members of the Supreme Court support the reasoning of Bahr. Speaking of the controlling criterion in the Child Custody Act, Justice Williams stated:

"It is abundantly clear to me that the whole purpose of the act is to serve 'the best interests’ of the child and the second sentence in § 5 establishes that as between the natural parents and the third party the criterion is 'the best interests of the child’. It presumes that this interest shall be placement or custody with the natural parent unless the opposing party proves the opposite.

In a concurring opinion in which Justice Fitzgerald joined, Justice Coleman quoted extensively and approvingly from Bahr. She concluded that the presumption in MCL 722.25 in favor of a natural parent may be overcome by something other than a finding that the parent is unfit.

"[F]itness is not an impermeable wall to keep out all other considerations. That isolated factor is not determinative, but may be one of many factors employed by a judge.” 397 Mich at 277 (Footnote omitted.)

The omitted footnote cites the text of MCL 722.23; MSA 25.312(3) which lists the factors to consider in determining the best interests of the child. Justice Coleman also cites from numerous cases and articles which hold that a child should remain with the third party rather than with the natural parent if by such an arrangement the best interests of the child will be served, despite the fact that the natural parent is not unfit.

The reasoning in Bahr, which we adopt, requires that the basic inquiry be into the best interests of the child. The presumptions in MCL 722.25 and MCL 722.27(c) should be recognized equally, with the best interest of the child as the overriding concern, a concern sufficient to overcome any of the rebuttable presumptions in the statute.

Because we adopt the holding and reasoning of Bahr, a remand is necessary. The trial judge gave too much weight to the presumption in favor of the natural parent, treating it as a presumption rebuttable only by a demonstration of the natural parent’s unfitness. On remand the trial court must recognize that the standard with which we deal is the best interests of the child and must use it. While the presumption in favor of the natural parent exists, it can be rebutted if clear and convincing evidence establishes that the best interests of the child are served by awarding custody to the third party. Bahr v Bahr, 60 Mich App at 359.

It will also be necessary on remand for the trial judge, should he deem the child to be of sufficient age to express preference, to speak with Todd to consider, evaluate and determine his reasonable preference as between the parties. That factor must then be taken into account by the trial court when it evaluates the best interests of the child to see where custody shall reside.

Our disposition of this case makes it necessary for us to consider the issue of visitation rights. We must determine whether the trial court erred in modifying plaintiffs visitation rights without making any findings of fact or remanding the case to the Friend of the Court for a recommendation.

Disputes over visitation rights are governed by the Child Custody Act. Stevenson v Stevenson, 74 Mich App 656; 254 NW2d 337 (1977). MCL 722.27(b); MSA 25.312(7)(b) requires the trial court to take the best interests of the child into account when ruling on visitation rights. When the requested modification amounts to a change in the established custodial environment, the trial court should not grant such a modification unless it is persuaded by clear and convincing evidence that the change would be in the best interests of the child. MCL 722.27(c); MSA 25.312(7)(c), Stevenson v Stevenson, supra.

In order to determine what the best interests of the child are, the trial court has to make certain findings of fact. See MCL 722.23. The trial court failed to do this in the present case and, therefore, erred in modifying visitation rights.

As to visitation rights, the case is remanded for further findings and the introduction of medical evidence concerning Todd’s health and his ability to cope with a limited dual custody environment. See Lorenz v Lorenz, 70 Mich App 356; 247 NW2d 569 (1976).

As to custody, the case is remanded so that the trial judge, in making an award, may use the criterion of the best interests of the child as contained in Bahr v Bahr, supra. While weight must be given to the presumption in favor of the natural parent, it is a presumption which can be rebutted by a showing that the best interests of the child would be served by another arrangement.

In addition, on remand, should the trial judge interview Todd to ascertain with whom he would prefer to reside, this factor should be but one of the considerations the judge uses in deciding where the best interests of the child lie.

At the trial level, the case was heard, at various stages, by several acting judges who are responsible for the present outcome. The case is remanded to Judge Thomas J. Foley for consideration of these issues in a manner consistent with this opinion.

Reversed and remanded.

       The following are the factors enumerated at MCL 722.23; MSA 25.312(3):
      "Best interests of the child” means the sum total of the following factors to be considered, evaluated and determined by the court:
      "(a) The love, affection and other emotional ties existing between the competing parties and the child.
      "(b) The capacity and disposition of competing parties to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
      "(c) The capacity and disposition of competing parties to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
      "(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
      "(e) The permanence, as a family unit, of the existing or proposed custodial home.
      "(f) The moral fitness of the competing parties.
      "(g) The mental and physical health of the competing parties.
      "(h) The home, school and community record of the child.
      "(i) The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.

        "(j) Any other factor considered by the court to be relevant to a particular child custody dispute.”

       The report of the Friend of the Court included the following findings:
      "In determining the best interests of the minor child TODD, a number of factors have been considered. The love, affection and other emotional ties existing between the parties and the child appear to be about equal. However, the respondents have had much more association with the child.
      "Both the petitioner and the respondents appear to have the capacity to give the child love, affection and guidance. Moreover, they all have about the same capacity to provide the child with food, clothing and medical care. The petitioner, as well as the respondent uncle, are working. In addition, the respondent-aunt testified that she quit her job in 1974 to care for the child.
      "With respect to medical care, it is noted that the child has cerebral palsy, and the respondents have seen him through two (2) operations since they assumed physical custody.
      "It has also been shown through the testimony that the minor child has lived in a stable and satisfactory environment since the respondents have had physical custody.
      "Both sides agreed that the present home of the respondents is physically suitable. The proposed home of the petitioner is being built, and she expects to move into it shortly with her husband and their child.
      "There appears to be no question regarding the physical, mental and moral fitness of the parties to care for the child.
      "Considering all the factors, it does not appear that the established custodial environment of the child should be changed. No clear and convincing evidence has been presented which would substantiate a conclusion that it would be in the best interests of the child to award his physical custody to the petitioner, rather than to the respondents.

       Two members of this panel, Judge McGregor and Judge Gillis, were on the panel which decided Baldwin v Baldwin, supra. To the extent that case fails to use the criterion of the best interests of the child in determining custody, it no longer reflects the views of either judge.

      " The whole purpose of the act is 'to declare the inherent rights of minor children; to establish rights and duties to their custody, support and visitation in disputed actions * * * ’.

      " Section 5 provides that '[w]hen the dispute is between the parent or parents and an agency or a third person, it is presumed that the best interests of the child are served by awarding custody to the parent or parents, unless the contrary is established by clear and convincing evidence’.
      "The standard for establishing the contrary is to determine the best interests of the child as set forth in § 3. See, e.g., Bahr v Bahr, 60 Mich App 354, 357-360; 230 NW2d 430 (1975); lv den’d, 394 Mich 794 (1975).” 397 Mich at 240.


author: M. J. Kelly, J.

text:
    PEOPLE v PLYLER
    Docket No. 77-4489.
    Submitted May 2, 1978, at Marquette.
    Decided October 3, 1978.
    Carole S. Plyler was charged with inciting to murder as a result of a series of telephone conversations between her and an informant. The first of these conversations was recorded without benefit of a search warrant, although two subsequent conversations, as well as two meetings, were recorded pursuant to search warrants. During interrogation of the defendant she indicated that she would not write or sign a statement until she had talked to an attorney. Questioning continued for some minutes after this assertion. The defendant moved for suppression of the information obtained during the interrogation and of the telephone conversations and meetings. The Marquette Circuit Court, John E. McDonald, J., granted the motions to suppress, and the prosecution appeals by leave granted. Held:

    1. The statements which defendant made to police during the interrogation were properly suppressed. Once the defendant indicated that she wished to consult an attorney, all questioning should have stopped, and because no record was made of the interview it was impossible for the court to determine what information was obtained prior to the request for counsel, which would have been admissible, and what was obtained after the request. Therefore, the results of the entire interview were properly suppressed.
    2. Suppression of all of the telephone recordings and films was error. The first conversation, recorded without a warrant, was not necessary to establish probable cause for issuance of the search warrants because the testimony of the informant was an alternate source upon which to base the warrants, even if the first recording had not been made. The subsequently obtained evidence therefore was not tainted as a result of the primary illegality.
    Affirmed in part, reversed in part, and remanded.
    References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 778.
    [2-4] 21 Am Jur 2d, Criminal Law § 314.
    [5] 29 Am Jur 2d, Evidence §§ 380-386.

      1. Criminal Law — Appeal and Error — Statement of Defendant— Voluntariness of Statement.
    The Court of Appeals, in reviewing a trial court’s determination of the voluntariness of a defendant’s statements, must examine the entire record and make an independent determination, reversing only when convinced that the trial court’s decision was clearly erroneous.
    2. Criminal Law — Questioning of Defendant — Request for Counsel.
    Police interrogation of a suspect must stop if the suspect indicates in any manner and at any stage in the process that he wishes to consult with an attorney.
    3. Criminal Law — Questioning of Defendant — Request for Counsel.
    The motivation behind a defendant’s request, during interrogation, for consultation with an attorney is irrelevant; the request for counsel is, in itself, enough to require a termination of the interrogation.
    4. Criminal Law — Evidence-Statement of Defendant — Request for Counsel.
    A trial court’s suppression of all of a defendant’s statement made to police during an interview, both before and after the defendant requested an attorney, was not clearly erroneous where, because no recording was made of the conversation, it was impossible to separate that part of the interview conducted prior to the request for counsel from that conducted subsequent to that request.
    5. Criminal Law — Evidence—Admissibility—Search Warrants.
    The inadmissibility into evidence of a telephone conversation recorded without a search warrant does not affect the admissibility of other evidence obtained later pursuant to search warrants where an informant’s testimony could have provided a basis for the warrants even if no recording of the first conversation had been made; no special advantage to the prosecution flowed from the illegal activity.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary L. Walker, Prosecuting Attorney, for the people.

      Kendricks, Bordeau, Casselman & Adamini, P.C. (by Ronald D. Keefe), for defendant.

      Before: V. J. Brennan, P.J., and R. B. Burns and M. J. Kelly, JJ.
   M. J. Kelly, J.

Plaintiff appeals from a Marquette County Circuit Court order granting defendant’s motion to suppress certain statements made by the defendant during interrogation and other physical evidence. Plaintiff raises two issues on appeal. We affirm as to the first issue and reverse as to the second.

Defendant stands charged with inciting to murder, contrary to MCL 750.157b; MSA 28.354(2). This prosecution arises from the following facts:

On March 14, 1977, defendant allegedly telephoned one Kenneth Epps and asked whether he would be willing to cause a fatal accident to an unnamed person for $15,000. Epps told defendant he would have to think about it and later reported the call to the Marquette City Police. The next day, defendant again called Epps and told him to forget the matter and Epps agreed to do so; however, he reported the second call to the police. After the March 15, 1977, telephone conversation, the defendant never again called Epps or initiated any contact with him; all subsequent contacts between the parties were initiated by Epps at the urging of the police.

On March 28, 1977, Epps, at the direction and in the presence of the police, called the defendant. This conversation was tape recorded by the police without the defendant’s knowledge and without having obtained a search warrant. During the next two days, the police obtained four separate search warrants to tape record two telephone conversations and a meeting between the defendant and Epps at a local restaurant and to record and film a second meeting between them. Immediately after the second meeting, the defendant was arrested.

During oral interrogation of the defendant, the police requested that the defendant either write out a statement of what she had told them or sign a statement that had been prepared by them. Defendant replied that she did not want to write anything until she talked to an attorney. Oral interrogation, however, continued for 15 minutes to 1/2 hour thereafter. On September 21, 1977, the trial court granted the defendant’s motion to suppress, ruling that it was unable to separate the information obtained by the police interrogators prior to the request for an attorney from that obtained subsequent to that request and therefore suppressed the entire interrogation. Further, the court ordered that the first recorded telephone conversation be suppressed because it was made without a warrant and also suppressed the other recordings and films obtained pursuant to warrants on the grounds that they had no separate source independent of the first illegal recording.

The first issue raised on appeal is whether all of the defendant’s statements made in the course of the interrogation were rendered inadmissible by further questioning after she said that she did not want to reduce her statement to written form until she had seen an attorney.

Plaintiff argues that the police interrogation of defendant did not have to be terminated under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), merely because she indicated that she desired to speak to an attorney before reducing her oral statements to writing. Alternatively, the plaintiff asserts that, even if defendant’s statement should have terminated the interrogation, her oral statements up to the time of her request for an attorney should be admitted because they are severable from the statements made by her after the point at which questioning should have been terminated. We reject both of these contentions.

The decision of a trial judge following a hearing held under People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), is reversed only if this Court has a "definite and firm conviction that a mistake has been committed”. People v Bradley, 54 Mich App 89, 98; 220 NW2d 305 (1974). The reviewing court, after examining the entire record, must make an independent determination and may reverse only when convinced that the trial court’s decision was clearly erroneous. People v Brannan, 64 Mich App 374, 376; 236 NW2d 80 (1975), lv gtd, 395 Mich 812 (1975).

Plaintiff argues that the interruption of the interrogation by defendant did not require termination of the interview. Plaintiff relies on United States v Frazier, 155 US App DC 135; 476 F2d 891 (1973), and People v Bradley, supra, for this argument. However, this reliance is misplaced because in both cases the defendant failed to specifically state that he wished to consult with counsel. In People v Brannan, supra, we held that questioning of the accused should have ceased as soon as the accused indicated that "he’d have to check with a lawyer” before he could decide whether to submit to a Polygraph test. Characterizing the reference to an attorney as a "red flag”, the Court of Appeals’ majority said:

"This should have stopped the interrogation forthwith as Miranda requires that if a suspect indicates in any manner and at any stage of the process he wishes to consult with an attorney, there can be no questioning. Miranda v Arizona, 384 US 436, 477; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966), People v Ansley, 18 Mich App 659, 667; 171 NW2d 649 (1969).” 64 Mich App at 378-379.

Similarly, in People ex rel Wayne Prosecutor v Recorder’s Court Judge, 79 Mich App 495; 261 NW2d 63 (1977), this Court held that an examining magistrate did not abuse her discretion in holding that a criminal defendant’s statement to a police officer was not admissible where the statement was made subsequent to Miranda warnings, and was given after the defendant indicated a desire for counsel by asking the interrogating officer whether he thought she should have an attorney. An ambiguous indication of an interest in having counsel requires cessation of police interrogation. People v Lewis, 47 Mich App 450; 209 NW2d 450 (1973), People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). The crucial factor in the present case is that the defendant indicated a desire to consult with an attorney; the motivation behind this request is irrelevant. The request for counsel is, in itself, enough to require a termination of interrogation.

As to plaintiffs contention that the statements obtained in violation of defendant’s rights are severable from those obtained previously, the record does not support this argument. The trial court specifically noted in its opinion that the substantive content of defendant’s statements had not been introduced at the hearing. The police denied that there had been a tape recording made of the interrogation. Although police officers testified that there were no new areas of inquiry after defendant’s request for counsel, the trial court found that it was practically impossible to separate the part of the interview conducted after questioning should have been terminated from the rest of the interview. If there had been a tape recording of the interrogation, as was the case in People v Van Epps, 59 Mich App 277; 229 NW2d 414 (1975), then such a separation would be possible. In the absence of a recording, however, the determination of the trial court was not clearly erroneous.

The second issue raised in this appeal is whether a warrantless recording of a telephone conversation between an informant and a defendant prevents the use of evidence obtained under subsequent search warrants. On this question, we find that the trial court erred in suppressing the physical evidence and reverse.

The "fruits of the poisonous tree” doctrine is employed to discourage unlawful police practices by depriving the law enforcement officers of advantages flowing from the primary illegality. People v Jones, 66 Mich App 223, 230; 238 NW2d 813 (1975). Thus, if law enforcement agents have exploited a primary illegality, any evidence so acquired must be suppressed. In the present case, however, the defendant has failed to establish that the tape recordings and films were special advantages necessarily flowing from the first illegal telephone monitoring.

The record indicates that the first, warrantless, recording need not have been used to establish probable cause for the issuance of the subsequent search warrants. In People v Beavers, 393 Mich 554; 227 NW2d 511 (1975), the Court held that warrantless participant monitoring of a conversation between a confidential police informant and a defendant is inadmissible as a violation of the defendant’s Fourth Amendment rights. Id. at 566. But, the Court stated that the admissibility of the informant’s testimony is not affected thereby, it is only the monitored account of the conversation which must be suppressed. Id. at 567. Here, the informant’s testimony could have provided a basis for the subsequent search warrants even if no recording of the first telephone conversation had been made; there is, therefore, no special advantage flowing from the illegal activity which should be deprived the law enforcement agency.

In any event, the record shows that the conversation recorded in violation of Beavers did not constitute a substantial portion of the case against defendant. There had been two previous conversations before the police became involved in the investigation. The officer testifying at the probable cause hearing for the first search warrant had questioned the informant about the original conversation and had also listened to the informant’s version of the first monitored conversation. This information, standing alone, would have been sufficient to establish probable cause. Thus, the trial court’s order suppressing the evidence obtained pursuant to the search warrants must be reversed.

Affirmed in part; reversed in part. Remanded.


text:
    PEOPLE v HANER
    Docket No. 77-4622.
    Submitted June 20, 1978, at Lansing.
    Decided October 3, 1978.
    John M. Haner was convicted of breaking and entering with intent to commit larceny, Midland Circuit Court, Tyrone Gillespie, J. After trial, the defendant filed a motion for a new trial based on the trial court’s refusal to give a requested instruction on the crime of entering without breaking. After a hearing, the motion was granted, although no formal order for a new trial was ever entered.
    Subsequently, the prosecutor informed the trial court that he did not wish to proceed with a new trial. The prosecutor recommended that the defendant’s conviction of breaking and entering be vacated, and that judgment of conviction on the charge of entering without breaking be substituted. After a hearing on the prosecutor’s motion, the trial court set aside its order for a new trial and agreed to sentence the defendant on the lesser included offense of entering without breaking. The defendant appeals. Held:

    1. The trial court erred in refusing to give the requested instruction. However, this error does not entitle the defendant to a new trial because the usual appellate remedy is to remand the case for entry of a judgment of conviction on the lesser offense with the prosecutor having the option of accepting the conviction on the lesser charge or, upon proper motion, move for a retrial on the original charge. The trial court did not err in vacating its order for a new trial and in its stead entering a conviction on the lesser offense.
    2. The trial court properly determined that a statement made to police by the defendant was made voluntarily and, therefore, admissible in evidence.
    Affirmed.
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law § 226.
    [3] 58 Am Jur 2d, New Trial § 127.
    [4] 58 Am Jur 2d, New Trial § 217.
    [5] 29 Am Jur 2d, Evidence §§ 523-596.

      1. Criminal Law — Lesser Included Offenses — Common-Law Test.
    The common-law test for lesser included offenses requires that the lesser must be such that it is impossible to commit the greater without first having committed the lesser; if the lesser included offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.
    2. Burglary — Lesser Included Offenses — Breaking and Entering —Entering Without Breaking — Requested Instructions.
    Entering without breaking is a necessarily included lesser offense to the crime of breaking and entering; therefore, it is reversible error to refuse to give a requested instruction on entering without breaking where a defendant is being tried for breaking and entering.
    3. Criminal Law — Instructions to Jury — Lesser Included Offenses — New Trial — Prosecutor’s Option.
    A trial court’s erroneous failure to give a requested instruction on a lesser included offense does not entitle a defendant to a new trial; the usual remedy applied by an appellate court is to remand the case for entry of a judgment of conviction of the lesser offense, with the prosecutor having the option to accept the conviction on the reduced charge, or upon proper notice, move for a retrial on the original charge.
    4. New Trial — Orders—Vacating Order for New Trial.
    A trial court may set aside and vacate an order for a new trial improvidently granted.
    5. Constitutional Law — Criminal Law — Confessions—Voluntariness of Confession.
    A reviewing court must examine the entire record and make an independent determination when reviewing a finding by the trial court that a defendant’s confession made to police was made voluntarily.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Doyle A. Rowland, Prosecuting Attorney, and Thomas C. Panian, Assistant Prosecuting Attorney, for the people.

      John P. Higgins, for defendant on appeal.

      Before: R. B. Burns, P.J., and D. F. Walsh and M. E. Clements, JJ.

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

   M. E. Clements, J.

On July 14, 1977, the defendant was convicted by a jury of breaking and entering an occupied building with intent to commit larceny, MCL 750.110; MSA 28.305. On July 19, 1977, the defendant filed a motion for a new trial, based on the trial court’s refusal to give a requested instruction on the crime of entering without breaking, MCL 750.111; MSA 28.306.

On August 11, 1977, at a hearing on the defendant’s motion, the people opposed the defendant’s motion, arguing that the offense of entering without breaking was not a necessarily included offense to breaking and entering. Based on an unpublished order issued by this Court in People v Loeffler (Docket No. 77-427, dated July 29, 1977), the trial court granted the defendant’s motion. No formal order for a new trial was ever entered.

In a letter dated August 15, 1977, the prosecutor informed the trial court that he did not wish to proceed with a new trial. He recommended that the defendant’s conviction of breaking and entering be vacated, and that judgment of guilt on the charge of entering without breaking be substituted.

At the conclusion of a hearing on the prosecutor’s motion, the trial court set aside its order of a new trial and agreed to sentence the defendant on the lesser included offense of entering without breaking. The defendant was then sentenced to six months in the county jail and given three years probation. The defendant appeals as of right.

The common-law test for lesser included offenses requires "that the lesser must be such that it is impossible to commit the greater without first having committed the lesser”. People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975). "If the lesser included offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.” Ora Jones, 395 Mich at 390. We find that entering without breaking is a necessarily included lesser offense to the crime of breaking and entering. Thus, the trial court committed reversible error in refusing the request to charge on the lesser offense.

A trial court’s erroneous failure to give a requested instruction on a lesser included offense does not entitle the defendant to a new trial. The usual remedy by the appellate court is to remand the case for entry of conviction of the lesser offense. Such cases allow the prosecutor to accept conviction of the reduced charge or, upon proper notice, move for a retrial on the original charge. People v Page, 83 Mich App 412; 268 NW2d 666 (1978). See also, People v Allen, 80 Mich App 786, 788-789; 265 NW2d 47 (1978), People v Thompson, 76 Mich App 705, 708; 257 NW2d 268 (1977), lv den, 402 Mich 829 (1977), People v Lank Thomas, 399 Mich 826; 249 NW2d 867 (1977).

In the case at bar, the trial court perceived its own error and proceeded to correct it by granting the defendant a new trial, rather than by substituting entry of conviction of the lesser offense.

A trial court may set aside and vacate an order for a new trial improvidently granted. People v Beath, 277 Mich 473, 479; 269 NW 238 (1936), People v Poole, 7 Mich App 237, 242; 151 NW2d 365 (1967).

There is no indication that the defendant was prejudiced by the trial court’s actions. We hold, therefore, that the trial court did not err in vacating its order of a new trial and in its stead entering a conviction on the lesser offense of breaking without entering.

The defendant also challenges the trial court’s admission into evidence of a written statement allegedly made by the defendant shortly after his arrest and after he was given the Miranda warnings. The statement was not read to the defendant and was not signed by him. The defendant argues that his refusal to sign the statement constituted a revocation of his previous waiver of the Fifth Amendment right to silence. At a pretrial suppression hearing, the trial court found that the statement was a voluntary confession, that the defendant had knowingly and intelligently waived his Miranda rights, and therefore the statement was admissible at trial.

In reviewing a finding of voluntariness at a Walker hearing, the reviewing court must examine the entire record and make an independent determination of the issue of voluntariness. People v Robinson, 386 Mich 551, 557; 194 NW2d 709 (1972), People v Cutler, 73 Mich App 313, 317; 251 NW2d 303 (1977). The defendant’s testimony at the suppression hearing indicated that he had been given the Miranda warnings, and that he understood their meaning, before making his incriminating statement. Thus, we hold that the people have sustained the burden of proving that the statement was voluntary when made.

The defendant’s other issues of error have been rendered moot by our previous determinations.

Affirmed.