text:
    RALEIGH v WATKINS
    Docket No. 46005.
    Submitted February 13, 1980, at Lansing.
    Decided April 24, 1980.
    David Raleigh brought an action in circuit court seeking visitation rights with the child born to Pamela Watkins, asserting paternity of that child. Defendant in her original answer admitted plaintiffs paternity but denied that plaintiff should have visitation rights. Defendant later, by an amended answer, denied plaintiffs paternity. Evidence was offered which showed that defendant, while still married, had sexual relations with plaintiff during the period July 12, 1975, to October, 1975, and that during that period she used no contraceptives. Proofs further showed that defendant’s last act of intercourse with her husband was no later than July 12, 1975, and that she had been taking birth control pills while she was living with her husband. A blood test indicated that the child’s blood was compatible with plaintiffs blood. At the time of her divorce on November 5, 1975, defendant indicated that she stated that no children were born of her marriage. It was uncontroverted that plaintiff was of fine character and had a sincere love and devotion for the child. While there was no evidence that plaintiffs visitation pursuant to temporary orders of visitation had any bad effects upon the child, defendant’s expert witness opined that visitation was not in the child’s best interests because of the child’s inability to comprehend the concept of a biological nonresident father and because the distress to defendant caused by plaintiffs visits ultimately affected the child. The Washtenaw Circuit Court, Henry T. Conlin, J., determined that plaintiff was the father of the child and ordered that plaintiff have visitation rights. Defendant appeals. Held:

    1. It was proper for the circuit court, in this suit to secure visitation rights, to consider the question of whether plaintiff was the natural father of the child, even though defendant was married at the time of conception of the child. Since the proofs offered were clear and convincing evidence of plaintiff’s paternity of the child, the presumption of legitimacy was rebutted and the circuit court’s determination of paternity was proper.

      References for Points in Headnotes
    [1, 2] 10 Am Jur 2d, Bastards § 19.
    [3] 10 Am Jur 2d, Bastards §§ 19-24.
    [4, 5] 10 Am Jur 2d, Bastards § 62.5.
    Right of putative father to visit illegitimate child. 15 ALR3d 887.

      2. The best interests of the child standard contained in the Child Custody Act of 1970 is applicable to the less pervasive right to visitation of the child by plaintiff, the natural father of the child.
    3. Since the circuit court’s determination that permitting visitation of the child by plaintiff was in the best interests of the child is not against the great weight of the evidence, the order granting visitation is affirmed pursuant to the appellate review standard contained in the Child Custody Act of 1970.
    Affirmed.
    1. Children Born Out of Wedlock — Visitation — Courts — Statutes.
    It is proper for the circuit court, in an action by a putative father seeking visitation rights with a child, to determine the lineage of a child born at a time when the child’s mother was married to another (MCL 722.24; MSA 25.312[4]).
    2. Children Born Out of Wedlock —• Evidence — Presumptions — Legitimacy.
    A putative father who is seeking to show that he is the natural father of a child conceived while the child’s mother was legally married to another must, in order to rebut the presumption of legitimacy, show by clear and convincing evidence that he is the natural father.
    3. Children Born Out of Wedlock — Presumptions — Legitimacy — Paternity — Visitation — Evidence.
    The presumption of legitimacy is rebutted and paternity is proven where a putative father seeking visitation rights with his child establishes that: (1) the child’s mother’s last intercourse with her husband was no later than July 12, 1975; (2) the child’s mother used birth control pills while married to her husband; (3) the child’s mother was divorced from her husband on November 5, 1975; (4) the child’s mother had sexual relations with the putative father during the period of July 12, 1975 to October, 1975; (5) the child’s mother in pleadings filed with the circuit court admitted becoming pregnant during the period she was having sexual relations with the putative father; (6) a blood test of plaintiff indicated that plaintiff’s blood was compatible with the child’s blood; and (7) the child was born May 24, 1976.

      4. Children Born Out of Wedlock — Best Interests of Child — Visitation — Statutes.
    The best interest of the child standard contained in the Child Custody Act of 1970 is applicable to the determination of the less pervasive right to visitation of a child by a putative father (MCL 722.23; MSA 25.312[3]).
    5. Children Born Out of Wedlock — Visitation — Best Interests of Child — Appeal.
    An order by a circuit court awarding the right of visitation of a child to a putative father will be affirmed where the circuit court finds that such visitation is in the best interests of the child and the Court of Appeals finds that the trial court’s determination is not against the great weight of the evidence.

      Edward B. Goldman, for plaintiff.

      Burgoyne & Pratt, for defendant.
    Before: J. H. Gillis, P.J., and Allen and M. J. Kelly, JJ.
   Per Curiam.

Defendant Pamela Watkins appeals from the Washtenaw County Circuit Court’s order finding paternity in and granting visitation rights to plaintiff David Raleigh.

Defendant, mother of Christopher Watkins, claims error in the trial court’s finding that plaintiff is the natural father of defendant’s infant son, thereby establishing plaintiffs standing to seek visitation privileges with respect to his son. The right of a putative father to litigate a custody claim was established by this Court in Winsett v Donaldson, 69 Mich App 36, 39; 244 NW2d 355 (1976). The Winsett Court stated, "It is entirely proper for a circuit court, in the course of hearing a child custody dispute, to determine the lineage of a child born at a time when the child’s mother was married”. Although Winsett was decided in the context of a custody dispute, its reasoning is equally applicable to a petition for visitation privileges. The Child Custody Act provides that the court shall fix rights and duties as to custody, support and visitation in the best interests of the child. MCL 722.24; MSA 25.312(4). When the child is conceived while the mother is legally married to another man, as in the instant case, the evidence that plaintiff is the child’s natural father must be clear and convincing in order to rebut the presumption of legitimacy. Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977). Here, the evidence offered to prove paternity included:

(1) An admission in defendant’s original sworn answer to plaintiff’s complaint that plaintiff was the child’s father;

(2) An additional admission by defendant in a subsequent brief filed for an October 23, 1976, hearing that defendant became pregnant by the plaintiff during the time she lived with him;

(3) Defendant’s statement at trial that she was taking birth control pills while she was living with her husband;

(4) Defendant’s statement at trial that she utilized no contraceptives during the time she lived with and had sexual relations with plaintiff;

(5) Defendant’s statement at trial that the father of her child could only be either her husband or plaintiff.

(6) Defendant’s last date of intercourse with her former husband was between July 4 and July 12, 1975. Defendant used birth control pills until July 12, 1975. Defendant lived with plaintiff from July 12, 1975, through August 15, 1975, and continued to have sexual relations with him through October of 1975. The minor child, Christopher, was born May 24, 1976. Therefore, the relevant dates indicate that in order for defendant’s husband to be the father of her child the birth control pills would have to have been ineffective and defendant would have to have been approximately four months pregnant at the time of her divorce in 1975. Yet, defendant stated she did not know she was pregnant at the time of her divorce;

(7) Defendant’s judgment of divorce stated that no children were born of defendant’s marriage to her husband. When defendant was given the opportunity to amend that judgment to reflect the fact of having had a child by that marriage, the opportunity was declined;

(8) A blood test of plaintiff requested by defendant indicated that plaintiff’s blood type was compatible with the blood type of his alleged son, Christopher;

(9) No steps were ever taken by defendant to determine whether her former husband could be the father of her child;

(10) Plaintiff testified that defendant told him that Christopher was his son; and

(11) Defendant’s expert witness, Dr. Carol Austad, testified that defendant told her that plaintiff David Raleigh "must be” Christopher’s father.

The only evidence offered against the finding of paternity was defendant’s denial at trial based on her conviction that she will "never be 100% sure” that plaintiff is the father of her son. We conclude that the trial court was correct in its judgment finding that plaintiff rebutted the presumption of legitimacy and proved paternity in himself by clear and convincing evidence.

Having decided that plaintiff had standing to litigate his claim for visitation rights, we next consider whether the trial court erred in finding that granting such rights was in the child’s best interests. In making its decision the lower court recognized the child’s best interest as the controlling issue. We agree with the trial court’s approach to deciding the visitation question in accordance with the "best interest” analysis factors set forth in the Child Custody Act, MCL 722.23; MSA 25.312(3). The fact that the Child Custody Act analysis is applicable in situations other than the typical custody dispute is demonstrated by the Supreme Court’s decision in In the Matter of Baby Boy Barlow, 404 Mich 216; 273 NW2d 35 (1978). The Barlow court sanctioned the use of the Child Custody Act’s definition of the child’s best interest in a case involving termination of parental rights under the adoption code. This multiple factor definition was designed to assure that custody is awarded to the party best equipped to raise the child; therefore, the standards embrace a wide range of considerations. Plaintiff herein seeks only visitation rights, not custody of the child. Defendant has no ground for complaint based upon utilization of the Child Custody Act standards as a guide in considering plaintiffs petition for a grant of far less pervasive rights.

In addition to providing standards for determining the best interest of the child, the Child Custody Act set forth the standard of appellate review:

"Sec. 8. To expedite the resolution of a child custody dispute by prompt and final adjudication, all orders and judgments of the circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.” MCL 722.28- MSA 25.312(8).

Our review of the record indicates that the trial court’s award of visitation rights was not against the great weight of the evidence and is therefore affirmed. Several witnesses commented as to plaintiff’s fine character and sincere love for and devotion to his son. None offered any testimony to the contrary. It was uncontroverted that plaintiff had sought permanent visitation rights with Christopher since the child was 13 weeks old and had consistently exercised his temporary visitation rights in the past. Plaintiff further contributed regular support payments for the child since Christopher was 13 weeks old, which were rejected by defendant and accordingly reserved in an escrow account pending the outcome of this appeal. No witness testified as to any bad effects on Christopher resulting from plaintiff’s visitation; in fact, even the defendant and her family admitted that Christopher is a loving and affectionate, secure child who does not appear to be disturbed by the visitation. Defendant further conceded that Christopher appears to be happy when plaintiff comes to visit and regards plaintiff as a friend.

The trial court also considered the testimony of defendant’s expert witness, Dr. Carol Austad, that visitation was not in the child’s best interest. This opinion was based upon the three-year-old child’s inability to comprehend the concept of a biological nonresident father and upon the distress that plaintiff’s visits caused to the mother, which ultimately affected the child. The lower court opined that "the positive elements of Plaintiff’s visitation more than outweighs [sic] any speculative carryover effect of the mother’s discomfort to the child”. We believe the trial court’s evaluation is in accord with the great weight of the evidence.

This case presents a unique situation in that the mother, father, and child never formed a traditional family unit. The relationship between the parties ceased before the child was born and mother and child have resided with the child’s maternal grandparents since defendant’s divorce. However, we do not believe that the lack of psychological ties between father and son should serve to deprive plaintiff of visitation rights since, as the trial court noted, "this is due to the limited opportunity which plaintiff has had to cultivate these bonds. Plaintiff does have, and has shown, the love and affection a natural father has for his child.”

The "best interest of the child” test is highly subjective and individualized. Our decision is necessarily limited to the factual circumstances present here. Plaintiff is apparently a fit parent deserving of visitation rights. Trial testimony indicates that the child is cheerful, stable, and will ultimately benefits from his father’s visits.

The decision of the trial court is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    EDEL v EDEL
    Docket No. 46321.
    Submitted February 7, 1980, at Grand Rapids.
    Decided April 24, 1980.
    Sharon M. Edel was granted a divorce from Michael J. Edel, Kalamazoo Circuit Court, Robert L. Borsos, J. Custody of the couple’s minor child was awarded to the defendant. One of the considerations of the trial court in determining custody was that the plaintiff, a white woman, was going with and planning to marry a black man. The plaintiff appeals. Held:

    1. The mother’s association with a person of another race was not relevant to a custody decision and should not have been considered.
    2. Upon remand for a rehearing of the custody issue before a different judge the parties should be afforded the opportunity to bring the record up to date by supplementing the record with whatever proofs they wish to present and that the court deems to be relevant to the child’s custody. The custody decision should be de novo.

    3. A custody order which is reversed on appeal does not create an established custodial environment. However, the court on remand may consider the time the child has spent with the defendant.
    Remanded for further proceedings.
    1. Parent and Child — Custody — Race.
    A parent’s association with a person of another race is not a relevant consideration in a child custody determination.
    2. Parent and Child — Custody — Review — Remand — De Novo Review.
    A trial court’s review of a child custody order, after remand from the Court of Appeals, should be de novo with both parties afforded the opportunity to supplement the record with whatever proofs they wish to present and that the court deems relevant to the child’s custody.

      References for Points in Headnotes
    [1] 24 Am Jur 2d, Divorce and Separation § 786.
    Race as factor in custody award or proceeding. 57 ALR2d 678.
    [2, 3] 24 Am Jur 2d, Divorce and Separation § 793.

      3. Parent and Child — Custody — Review — Established Custodial Environment — Statutes.
    A trial court, in reviewing a child custody order after remand from the Court of Appeals, is not precluded from weighing the quality and duration of the child’s stay with the parent originally granted custody during the pendency of the appeal; however, no "established custodial environment” is created by a custody order that is reversed on appeal (MCL 722.27; MSA 25.312[7]).

      Legal Aid Bureau for Kalamazoo and Van Burén Counties, Inc. (by Roger J. Bus), for plaintiff.

      John J. Peters, for defendant.
    Before: Danhof, C.J., and R. B. Burns and Mackenzie, JJ.
   Per Curiam.

The plaintiff brings this appeal from a judgment of divorce granting custody of the couple’s minor child to the defendant.

The plaintiff and the defendant separated in May, 1978. In November, 1978, the circuit court awarded temporary custody of their child, Kristen, to the plaintiff. After trial in May, 1979, the court issued a judgment granting the complaint for divorce, apportioning the marital property and placing Kristen permanently in the custody of the defendant. At that time, Kristen was five years old.

The court’s findings reflect the evidence, which shows that Kristen is a healthy and well-adjusted child, with strong affectional ties to both parties. There was little question that both are able parents and are willing to provide very well for the child’s economic and psychological needs. The plaintiff has become engaged to a man whose ability as a stepparent is not open to serious question, who shows a mature respect for Kristen’s relationship with her father, and for whom Kristen apparently has a strong liking. As the plaintiffs counsel argued to the trial court, there are no "monsters” in this case.

The defendant intends to remain with Kristen in Kalamazoo, where he works as a computer programer. He has preserved the ties between Kristen and all her grandparents, who also live in that area. The defendant’s parents and the plaintiffs sister-in-law are apparently willing to care for Kristen while her father works. The plaintiffs fiance has taken a position as the program director of a radio station in Toledo. It is the plaintiff’s intention to take Kristen there with her and to marry this man as soon as his own divorce becomes final. The plaintiff has been offered a part time job in the same radio station.

The trial judge issued his opinion from the bench, evaluating the evidence with reference to the several factors set forth in MCL 722.23; MSA 25.312(3) and prefacing his remarks with the observation that the dispute was "one of the most difficult custody cases [he had] had in almost five years on the bench”. Considering the statutory factors in order, he found the parties to be equal with respect to most of them, but believed that in three areas the evidence favored the defendant’s claim to custody.

The court went on to address one other aspect of the case that it thought was relevant:

"The Court also notes the presence of the boyfriend. Now, the Court states on the record that the boyfriend is black. There has been no mention of it. The Court is not certain whether or not it is correct in mentioning this, but I feel that I must. We have come a long way in race relationships. The Court examined this man very closely when he was testifying. This man is black, but he is not culturally inferior to this woman. They can have a good life if they want to. He appears to be as well educated as she. He speaks well. Maybe this is his training as a radio announcer. He has what sounds like a good job, but it may be sort of a transitory job, because I would guess that if he is successful in Toledo, that he is going to have other opportunities to go to other stations.
"So the life probably will not be as stable as if he stayed in Kalamazoo or if the mother had stayed with the present husband. This is no great disadvantage because if he worked for a corporation, if he worked for General Motors, he probably would expect every five or ten years to be transferred. I doubt that with the radio station he’s going to be changing any more often than that, no matter how successful he becomes.
"The Court can’t help but think that there is a problem, small one, but nevertheless a problem and rather than to put it on a racial basis, a black against white, the Court would make the analogy of a French girl who marries a German and goes to Germany to live. They are both white, but they are going to have problems and they are going to have to overcome those problems. That is the problem that Kristen would also have to live with. Thank goodness those problems are not as great as they were 20 years ago. I think it is an element that this Court in doing its duty has to weigh.
"The same problem occurs when you have, maybe to a lesser extent, when you have an inter-religion marriage. Where the child is going to be raised Catholic or Protestant or Jew. Not to say that those marriages shouldn’t take place, but I think that is something the Court has to consider. It would be easier for the Court to duck the issue and to ignore the fact that there is a color difference here. I’m satisfied that the boyfriend does love Kristen very much. I think that he will be a good stepfather to her, whether the child were to be in his home or come to visit frequently.
"I did not ask the child about the boyfriend for several reasons. I am not sure that she could have given me an answer that would have been helpful, but noticing the way he testified on the stand, I don’t think that he could have faked that feeling that he has of Kristen and I’m sure that if I could have had unlimited time with Kristen and opened her mind, that she probably would have had a very warm feeling towards him. The time did not permit that and I don’t think I have the skills to do this, to illicit [sic] from her even if I did have the time.
"There is another element the Court wants to discuss about the boyfriend, and that is this. Even without the child, the mother and the boyfriend, and I think they are both honest, I think they both intend it when they say they are going to marry as soon as they are free to do so, but they are going to have some adjustment to make. They are going to have to get acquainted with each other. I don’t think it is going to be as easy with Kristen in the picture, at least in the beginning. They hope to have their own children. I hope they do, but I think to avoid the mother having a second unfortunate marriage where she feels that she perhaps made a mistake, that maybe the first year or two they probably should focus on each other and not be too distracted by other obligations.
"The Court recognizes that the marriage may never come about, but I think they are both sincere and I think they both want the marriage and unless something dramatic happens, I think that they will marry when they are able to.”

The consideration of race in child custody matters has apparently never been directly addressed by the courts of this state. We have encountered Potter v Potter, 372 Mich 637; 127 NW2d 320 (1964), in which the Court reviewed an award of custody of a young child to her father, after her mother had removed the child to California in violation of a court order. While in California, the mother married a man whom she had been seeing before her divorce. A plurality of the Court wrote:

"An attempt has been made by counsel for [the mother] to inject into the case questions of civil rights, under the Fourteenth Amendment to the Federal Constitution, involving racial equality. As the basis for such attempt, counsel point out in their brief that: 'Plaintiff and defendant are white. Dr. Baugh is a Negro.’ It is established by the record that Dr. Baugh is appellant’s present husband and the 'Mr. X’ referred to in the pleadings and proofs. It is obvious from the opinion of the circuit judge that he did not consider such racial differences as of special significance at the present time. We fully concur in this view. Possible developments in the future because of the situation referred to are matters wholly of speculation and conjecture, and as such may not affect the present determination of the case. What we actually have before us is the matter of the custody of a young child as of the present time. The trial court has, of course, the reserve power under the statute to modify the decree in the respect here involved in the event of changed circumstances.” 372 Mich at 648.

Courts in a few other states have encountered the problem in a variety of situations and have shown little favor for the use of race as a factor in custody decisions. The subsequent marriage of the white mother of an illegitimate child to a black man was held to be an improper basis for lodging custody of the child with its white father in In re Brenda H, 37 Ohio Misc 123; 66 Ohio Op 2d 178; 305 NE2d 815 (1973). Even more to the point is Commonwealth ex rel Myers v Myers, 468 Pa 134; 360 A2d 587 (1976), in which a white father sought custody of his children from their white mother because her stable but unsolemnized relationship with a black man threatened the children’s "racial identity”. The race of the mother’s paramour was held to be "not relevant” in deciding the issue. Myers relied on the earlier decision of the Supreme Court of Pennsylvania in Commonwealth ex rel Lucas v Kreischer, 450 Pa 352; 299 A2d 243 (1973), in which a white father had refused to surrender custody of the couple’s children after their white mother married a black man. The court said:

"In its opinion, the [trial] court stated that the benefit of geographical location is a 'highly controversial issue, * * *, and is not conclusive one way or the other.’ The basic reason for the court’s ruling in granting custody to the father was the existence of the interracial marriage of the mother and the possible detriment that might result to the children from living with the mother under such circumstances.
"* * * In the instant case, the record is completely barren of any evidence that the children here involved will. suffer from living with the mother under the existing circumstances. Significantly, the children have evidenced no ill will towards the mother or concern over her second marriage, and no social problems, such as bias or prejudice, ensued while they were under her care from September 1969 to June 1970. The real issue posed by this appeal is, whether a subsequent interracial marriage by the mother, in and of itself, is such a compelling reason as will warrant a court in denying her the custody of her children. We rule it is not.
"As noted by Judge Hoffman in his dissenting opinion below, there has been a marked increase in the United States in recent years of interracial marriages and trans-racial adoptions, and sociological studies establish that children raised in a home consisting of a father and mother who are of different races do not suffer from this circumstance. * * * We agree wholeheartedly with Judge Hoffman’s statement that 'in a multiracial society such as ours racial prejudice and tension are inevitable. If * * * children are raised in a happy and stable home, they will be able to cope with prejudice and hopefully learn that people are unique individuals who should be judged as such.’ ” 450 Pa at 355-356.

See also Goldman v Hicks, 241 Ala 80; 1 So 2d 18 (1941), and Milligan v Davison, 244 Pa Super 255; 367 A2d 299 (1976).

We are persuaded by the reasoning of these courts and therefore hold that the trial judge committed a "clear legal error on a major issue” in considering a parent’s association with a person of another race to be relevant to a custody decision. MCL 722.27(a); MSA 25.312(7)(a). There was absolutely no evidence or argument that her mother’s proposed marriage would have any detrimental effect on Kristen. We seriously doubt that such proof would have been admissible if offered. As the court wrote in Brenda H, supra,

"Irrespective of the chances for success or failure of bi-racial or other 'mixed’ marriages and in spite of abounding prejudice of all kinds (racial, ethnical [sic] and religious) the American 'melting pot’ will continue to bring about the marital union of persons of different racial, religious and cultural backgrounds. . The law wisely does not and should not interfere with this process.” 37 Ohio Mise at 129-130.

Our resolution of this issue makes consideration of the plaintiffs other claims on appeal unnecessary.

While the record shows that the race of the plaintiffs fiance was a factor in the trial court’s decision, it was not the only aspect of the evidence that the trial court found to favor custody in the defendant. Thus, we would not be justified in reversing this decision outright, for both parties are entitled to a decision on the proper merits of their respective cases. The circuit court should redetermine Kristen’s custody without reference to the race of the plaintiffs fiance. On remand, the case should be assigned to a new judge.

In practically any other sort of case, a new decision based on the record produced in May, 1979, would be proper, for what is challenged here is merely the court’s assessment of the evidence, rather than the character of evidence received; ordinarily, litigants are entitled to only one opportunity to present their cases. However, in this custody dispute, the "litigant” with the most at stake is Kristen. The year that has passed since the trial is a significant period in her young life. Her interests are too important to be determined by a record that may be quite stale. See Roudabush v Roudabush, 62 Mich App 391; 233 NW2d 596 (1975). The new judge should therefore afford both parties the opportunity to supplement the record with whatever proofs they wish to present and that he deems relevant to Kristen’s custody. His decision should be de novo.

We anticipate and decide one additional difficulty that will be encountered in deciding this case on remand. Ordinarily, a hearing or trial on remand is deemed to be the proceeding to which the party who has obtained appellate relief was entitled in the first instance; remand is ordered because improper events in the original proceeding have operated to the detriment of the victorious appellant. From this rather self-evident proposition flows the corollary that the time spent by a successful appellant in securing the right originally denied should not disadvantage her when those rights are at last honored.

MCL 722.23(d); MSA 25.312(3)(d) directs the trial court to consider in determining the custody of a child "[t]he length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity”. The entire Child Custody Act, MCL 722.2Í et seq.; MSA 25.312(1) et seq., is perfused with reference to the "best interests” and "inherent rights” of the child. We consider this provision and these statements of policy to be superior to the symmetry of common-law appellate remedies and even to the rights of the plaintiff, who has prevailed in this appeal. Thus, in reviewing Kristen’s custody, the circuit court shall not be precluded from weighing the quality and duration of her stay with the defendant during this appeal.

This cause is remanded for proceedings not inconsistent with this opinion. Custody of the child shall remain with the defendant pending the new hearing.

No costs, neither party prevailing in full._

       The statute provides:
      " '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.”

       We are of course aware of the increased burden of proof which must be carried by a party seeking a change in a child’s "established custodial environment”, MCL 722.27; MSA 25.312(7). In light of our decision regarding the role of MCL 722.23(d); MSA 25.312(3)(d) in the proceedings on remand, we believe that the advantage to Kristen the increased burden of proof might provide does not justify the added burden it would impose upon the plaintiff. We therefore hold that no "established custodial environment” is created by a custody order that is reversed on appeal. Cf., Berman v Berman, 84 Mich App 740; 270 NW2d 680 (1978).


text:
    DOWD v DOWD
    Docket No. 47784.
    Submitted March 6, 1980, at Grand Rapids.
    Decided April 24, 1980.
    Leslie H. Dowd (hereinafter plaintiff) was granted a judgment of divorce from Barbara J. Dowd (hereinafter defendant) which provided in part that physical custody of the parties’ four children would be shared, with defendant having physical custody during the school year and plaintiff having custody during the summer months. Subsequently, the Van Burén Circuit Court, Chester J. Byrns, J., entered an order pursuant to stipulation of the parties granting plaintiff physical custody of the children during the 1978-1979 school year. Plaintiff later petitioned the court for amendment of the divorce judgment, seeking custody of the children for the entire year. The Friend of the Court report indicated no change in the custody arrangement was warranted. However, the court altered the custody provision to provide for each party to have physical custody of the children for alternating three-month periods. Defendant appeals. Held:

    1. The best interests of the child shall control in a custody dispute or modification of custody between parents.
    2. The trial court must evaluate each of the factors in the Child Custody Act, make definite findings of fact and state its conclusions of law to determine the best interest of the child before deciding a custody or visitation rights dispute.
    3. The general standard for appellate review of custody decisions provides that all orders and judgments of a 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.
    Reversed and remanded.
    References for Points in Headnotes
    [1, 2] 24 Am Jur 2d, Divorce and Separation §§ 783, 820.
    42 Am Jur 2d, Infants § 33.
    [3] 24 Am Jur 2d, Divorce and Separation §§ 779, 812.

      1. Parent and Child — Child Custody.
    The best interest of the child shall control in a custody dispute or modification of custody between parents (MCL 722.25; MSA 25.312[5]).
    2. Parent and Child — Child Custody — Statutes — Court Rules.
    The trial court must evaluate each of the factors listed in the Child Custody Act, make definite findings of fact and state its conclusions of law, to determine the best interest of the child before deciding a custody or visitation rights dispute (MCL 722.27; MSA 25.312[7], GCR 1963, 517.1).
    3. Parent and Child — Custody — Appellate Review.
    The general standard for appellate review of custody decisions provides that all orders and judgments of a circuit court shall be aifirmed 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.

      Frederick A. Sauer, Jr., for plaintiff.

      Richard C. Walsh, for defendant.
    Before: Allen, P.J., and M. F. Cavanagh and C. W. Simon, JJ.

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

   Per Curiam.

On July 18, 1978, plaintiff was granted a judgment of divorce from defendant. The judgment provided in part that custody of the parties’ four children would be shared, with defendant having physical custody and control during the school year, and plaintiff having physical custody and control during the summer months. On October 10, 1978, the court entered an order pursuant to stipulation of the parties granting plaintiff physical custody and control during the 1978-1979 school year "for the best interests of the children * * * at a time when the Defendant mother, Barbara J. Dowd, is attempting to establish some economic base and stability”.

Plaintiff later petitioned for amendment of the judgment of divorce to grant him year-round physical custody of the children. Before the hearing on the petition, the Friend of the Court filed a report which concluded that no change in the custody arrangement was warranted. Nevertheless, following a hearing on August 24, 1979, the court altered the physical custody provisions of the divorce to grant each party physical custody of the children for alternating three-month periods. Defendant, whose period of custody was thus reduced from nine months to six months during the year, appeals as of right.

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

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

See also, Radway v Radway, 81 Mich App 328; 265 NW2d 202 (1978).

The act provides that in a custody dispute between parents the best interests of the child shall control, MCL 722.25; MSA 25.312(5), and indicates that modification of previous orders providing for custody should not occur unless the modification is in the best interests of the child. MCL 722.27; MSA 25.312(7). The act contains an extensive list of factors to be considered in determining the best interests of the child.

The trial court must evaluate each of the factors to determine the best interests of the child before deciding a custody or visitation rights dispute. Flaherty v Smith, 87 Mich App 561; 274 NW2d 72 (1978), Troxler v Troxler, 87 Mich App 520; 274 NW2d 835 (1978), Stevens v Stevens, 86 Mich App 258; 273 NW2d 490 (1978). The present case, involving modification of the terms of a joint custody arrangement, is governed by this rule. Furthermore, the trial court was required by GCR 1963, 517.1, to make definite findings of fact and to state its conclusions of law; a duty which extends to the determination and explicit consideration of each of the "best interests” factors listed in the act. Lewis v Lewis, 73 Mich App 563; 252 NW2d 237 (1977).

It is clear from this record that the paramount concern of the learned trial judge was the children’s well being. However, while stating that it was ruling in the best interest of the children and pointing out generally the environmental factors considered, the trial court failed to make the required analysis of the statutory factors. Each of these factors should have been specifically evaluated and a conclusion on each stated.

The transcript of the hearing below also leaves us with the impression that the trial court improperly. considered the fact that the children had been living with the father for the previous nine months or more as a factor supporting the custody modification. The reason the children were with the father during that period was the voluntary arrangement by which the mother gave up custody for the 1978-1979 school year for economic reasons. In Miller v Miller, 23 Mich App 430; 178 NW2d 822 (1970), lv den 383 Mich 799 (1970), this Court held that a mother should be encouraged to give up her children temporarily if she finds herself unable to care for them alone, and that sound policy is to provide such encouragement by returning custody to her once she is able to care for them.

The order of the lower court is reversed and a new hearing ordered in accordance with this opinion.

Reversed and remanded.


text:
    PORTER v MICHIGAN MUTUAL LIABILITY COMPANY (ON REMAND)
    Docket No. 48015.
    Submitted December 10, 1979, at Grand Rapids.
    Decided April 24, 1980.
    Philip Porter was injured when his motorcycle was struck by an automobile, and he brought an action to recover no-fault insurance benefits from Michigan Mutual Liability Company, the insurer of an automobile owned by his father, or from Aetna Life and Casualty Company, the insurer of the automobile which struck him. Porter lived with his father, and the father’s no-fault insurance policy provided for a $5,000 deductible where the injury arose out of the use of an owned motorcycle by the named insured or a relative. The plaintiff argued that the $5,000 deductible violated the no-fault insurance act, that the statutory .delegation to the Insurance Commissioner of authority to approve such deductibles was not made with the constitutionally required standards, and that the deductible violated the Equal Protection and Due Process Clauses. The Berrien Circuit Court, Julian E. Hughes, J., granted a partial summary judgment for defendants Michigan Mutual and Aetna. The plaintiffs claims against Aetna and the driver of the automobile were settled and dismissed by stipulation and the plaintiff appealed the summary judgment as to Michigan Mutual. The Court of Appeals reversed and remanded for a determination of the amount of no-fault benefits to which the plaintiff was entitled. 80 Mich App 145 (1977). Michigan Mutual appealed to the Supreme Court on the issue of the validity of the $5,000 deductible. The Supreme Court held that a motorcyclist injured in a motor vehicle accident must first look to his own insurer if he has one for personal protection benefits and that the delegation of authority to the Insurance Commissioner to approve deductibles was constitutional and remanded the case to the Court of Appeals for consideration of the additional challenges of the validity of the $5,000 deductible. 407 Mich 175 (1979). Held:

      References for Points in Headnotes
    [1, 2] 7 Am Jur 2d (Rev), Automobile Insurance §§ 27, 367, 368.
    Validity and construction of "no-fault” automobile insurance plans. 42 ALR3d 299.

      1. The deductible provision does not constitute a denial of equal protection by creating two classes of motorcyclists who are treated differently (those who are covered by their own policy who must look to their own insurer for recompense subject to the deductible and those are not covered by their own policy and can recover full benefits from the insurer of the automobile owner or driver involved in the accident) because, to the extent of the deductible, the motorcyclist is not uninsured, but self-insured, arising from the contractual arrangement between himself and his insurer.
    2. The statute requiring an insurer to offer "deductibles and exclusions reasonably related to other health and accident coverage on the insured” does not require an insurer to make mid-term offers to its insureds in the absence of appropriate regulations from the Insurance Commissioner requiring such offers.
    Summary judgment for Michigan Mutual reversed and remanded with instructions that Michigan Mutual shall have the benefit of the deductible.
    A. E. Keyes, J., did not participate.
    1. Insurance — No-Fault Insurance — Personal Protection Benefits — Deductibles -— Equal Protection.
    The Insurance Commissioner’s approval of a no-fault policy provision providing for a $5,000 deductible in personal protection benefits for injuries sustained by occupants of two-wheel motor vehicles does not constitute a denial of equal protection by creating two classes of motorcyclists who are treated differently (those who are covered by their own policy who must look to their own insurer for recompense subject to the deductible and those who are not covered by their own policy and can recover full benefits from the insurer of the automobile owner or driver involved in the accident) because, to the extent of the deductible, the motorcyclist is not uninsured, but self-insured, arising from the contractual arrangement between himself and his insurer.
    2. Insurance — No-Fault Insurance — Statutes — Deductibles — Exclusions — Mid-Term Offers.
    The statute requiring an insurer to offer "deductibles and exclusions reasonably related to other health and accident coverage on the insured” does not require an insurer to make mid-term offers to its insureds in the absence of appropriate regulations from the Insurance Commissioner requiring such offers (MCL 500.3109a; MSA 24.13109[1]).

      Keller, Keller & Creager (by Craig A. Rochav), for plaintiff.

      Lilly, Smith & Domeny, for defendant Michigan Mutual Liability Company.
    Before: Danhof, C.J., and T. M. Burns and A. E. Keyes, JJ.

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

   On Remand

Per Curiam.

This case comes before us on remand from the Supreme Court and is accompanied by an instruction that we consider an additional challenge to the validity of a $5,000 deductible in the policy under which plaintiff was insured by defendant. In its original opinion in this case, this Court, with Chief Judge Danhof dissenting, held that the provision of the insurance policy setting forth the $5,000 deductible was invalid because the • delegation of authority to the insurance commissioner to approve the deductible was not made with proper safeguards and constitutionally required standards. On October 29, 1979, the Supreme Court reversed the decision of this Court and remanded this case for our consideration of plaintiff’s second challenge to the deductible.

Section 3109(3) of the no-fault act, MCL 500.3109(3); MSA 24.13109(3), provides:

"An insurer providing personal protection insurance benefits may offer, at appropriately reduced premium rates, a deductible of a specified dollar amount which does not exceed $300.00 per accident. This deductible may be applicable to all or any specified types of personal protection insurance benefits but shall apply only to benefits payable to the person named in the policy, his spouse and any relative of either domiciled in the same household. Any other deductible provisions require the prior approval of the Commissioner.”

On October 1, 1973, the insurance commissioner approved of no-fault insurance policy provisions providing for a $5,000 deductible for injuries sustained by occupants of two-wheel motor vehicles. Plaintiff argues that this deductible creates two classes of motorcyclists and treats them differently: a motorcyclist covered by a no-fault policy who is required to first look to his own insurer for recompense of his injuries and is subject to the deductible and a motorcyclist who is not covered by a no-fault policy and can recover full personal protection benefits from the insurer of the automobile owner or driver involved in the accident. Plaintiff contends that this classification has no rational relationship to any statutory purpose and, therefore, constitutes a denial of equal protection of the laws.

However, we hold that a motorcyclist is not uninsured, but self-insured, to the extent of his deductible and, as a consequence, no classification is made by § 3109(3). The deductible arises out of a contractual relationship between a motorcyclist and his insurer. In return for a reduced premium, a motorcyclist assumes the risk for the first $5,000 of bodily injury sustained in an accident. As was noted in the Supreme Court’s opinion, plaintiff could have purchased an endorsement for an additional premium that would have eliminated the policy’s "limits of liability” clause and the $5,000 deductible. To the extent that no such additional protection was sought or purchased by plaintiff, any disadvantaged class that plaintiff may now fall into arose by a contractual agreement and not pursuant to the statute.

In support of our conclusion that plaintiffs challenge to the constitutionality of § 3109(3) must fail, we note that not only did plaintiffs father contract with defendant for reduced coverage in the form of an increased deductible, but he also contracted for an increase in coverage in another respect. The optional motorcycle endorsement on the insurance policy provides no-fault personal injury protection and coverage for motorcycle accidents in which no "motor vehicle” is involved and for which no no-fault motor vehicle coverage would otherwise provide compensation. Therefore, inasmuch as plaintiff has elected to place himself in the classification that he now claims is unconstitutional we are unpersuaded by plaintiffs argument that § 3109(3) violates equal protection of the laws.

We similarly reject plaintiffs contention that MCL 500.3109a; MSA 24.13109(1), which took effect in the second month of plaintiffs father’s no-fault policy, required defendant to immediately offer to paintiffs father a deductible that was reasonably related to his other accident insurance coverage. In full, that statute reads as follows:

"An insurer providing personal protection insurance benefits shall offer, at appropriately reduced premium rates, deductibles and exclusions reasonably related to other health and accident coverage on the insured. The deductibles and exclusions required to be offered by this section shall be subject to prior approval by the commissioner and shall apply only to benefits payable to the person named in the policy, the spouse of the insured and any relative of either domiciled in the same household.”

Prior to this statute’s effective date, June 3, 1974, the insurance commissioner ordered insurers to offer deductibles of no greater than $300 in all new or renewal policies issued after this date. There is no evidence in the record that the commissioner ever approved of any regulations governing these newly mandated terms, other than this $300 deductible requirement. Nonetheless, plaintiff argues that § 3109a has required defendant to make mid-term offers of insurance coverage to its insureds of deductibles that were reasonably related to other health and insurance coverage and that were no greater than $300. We find this argument to be without merit because we cannot read the statute to require mid-term offers. This is particularly true in the absence of appropriate regulations from the commissioner which would have required the making of such offers.

Summary judgment for defendant Michigan Mutual Liability Company is reversed. In further proceedings, this defendant shall be entitled to benefits of the $5,000 deductible set forth in the policy agreed to by the parties.

A. E. Keyes, J., did not participate in this opinion.


author: D. C. Riley, J.

text:
    PEOPLE v POWELL
    Docket No. 77-1702.
    Submitted February 14, 1979, at Detroit.
    Decided May 5, 1980.
    Elijah Powell was convicted of second-degree murder, Recorder’s Court of Detroit, Joseph E. Maher, J. Defendant appealed, and the Court of Appeals remanded for an evidentiary hearing relative to the pretrial identification process (per curiam opinion of June 7, 1979 [unreported]) and retained jurisdiction. That hearing was held and the Court of Appeals issued the instant opinion. The defendant alleged, among other things, that a witness was erroneously permitted to identify the defendant in court where the only prior identification was a photographic showup conducted while the defendant was in custody, and that the trial court erred by admitting testimony of a radiologist who identified the victim by comparison of chest x-rays. Held:

    1. One exception to the requirement that photographic identification may not be used where the defendant is in custody is where there is an insufficient number of persons with the defendant’s physical characteristics available to participate in a lineup. In this case it was agreed that the defendant’s characteristics would prevent a fair lineup. The photographic identification was a reasonable alternative. In addition, the photographic identification was not unduly suggestive.
    2. The testimony of the radiologist was properly admitted. The radiologist was duly qualified to make the identification by comparison of the x-rays. The evidence was before the jury, and, as with all expert testimony, was to be weighed by them as to its probative value.
    Affirmed.
    References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence § 371.8.
    Admissibility of evidence of photographic identification as affected by allegedly suggestive identification procedures. 39 ALR3d 1000.
    [2] 29 Am Jur 2d, Evidence §§ 371 et seq., 1143.
    [3, 4] 29 Am Jur 2d, Evidence § 371.6.
    [5] 29 Am Jur 2d, Evidence §§ 799, 800.
    Preliminary proof, verfication, or authentication of x-rays requisite to their introduction in evidence in civil cases. 5 ALR3d 303.

      1. Criminal Law — Identification — Photographs — Proper Lineups — Physical Characteristics.
    Photographs should not be used to identify an in-custody accused; this rule has some exceptions, one of which is where there is an insufficient number of persons with the defendant’s physical characteristics available for lineup participation.
    2. Criminal Law — Eyewitness Identification — Fairness — Totality of Circumstances.
    The fairness of pretrial identification procedures is to be judged on the totality of circumstances.
    3. Criminal Law — Identification — Showups — Physical Dissimilarities —■ Totality of Circumstances.
    Physical dissimilarities between a suspect and other showup participants does not constitute impermissible suggestiveness per se; any degree of suggestibility must be judged by the totality of the circumstances.
    4. Criminal Law — Identification — Showups — Evidence — Weight of Evidence — Admissibility of Evidence.
    The validity of an identification resulting from a police showup is a question for the jury; the question presented concerns the weight to be given such identification, not its admissibility.
    5. Evidence — Identification — X-ray Identification — Expert Witnesses.
    Testimony by a duly-qualified expert regarding the identification of a body by the comparison of x-rays is not subject to the requirement that the technological principle involved must first be shown to be accurate and acceptable within the scientific community; such testimony is properly admissible as expert testimony and is to be weighed by the jury the same as any other expert testimony.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutor’s Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

      Thomas A. Neenan, for defendant on appeal.

      Before: Cynar, P.J., and D. E. Holbrook, Jr., and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant Elijah Powell was convicted by a jury on February 17, 1977, of second-degree murder, MCL 750.317; MSA 28.549. The trial involved the killing of one Christal Davis, whose burned torso, absent head and limbs, was discovered in a Washtenaw County park on October 3, 1975. Defendant was sentenced to a term of 80 to 120 years imprisonment, appeals as of right, and questions several evidentiary rulings by the court below.

Defendant alleges that the court erroneously permitted a witness to identify the defendant in court where the only prior out-of-court identification was at a photographic showup conducted while the defendant was in custody.

The record reveals that on the morning of October 1, 1975, Thomas Lipkea, while driving near the park where the homicide victim was discovered, noticed a thin column of smoke rising from a wooded area. Shortly thereafter, he observed a 1972 Caprice pull out of that same area and eventually come to a stop behind his auto as both waited for the change of a traffic signal. Through his rearview mirror, Lipkea viewed its occupant for approximately ten seconds. Over objection at trial, he was allowed to identify the defendant as the driver of that vehicle.

The witness further testified that about two weeks after the incident a photo showup was conducted at police headquarters, at which time he identified the defendant from a group of six photographs. The record shows that defendant was in custody at the time.

In People v Anderson, 389 Mich 155, 186-187; 205 NW2d 461 (1973), the Supreme Court held that, subject to certain exceptions, identification by photograph should not be used where the accused is in custody. Those exceptions apply when:

(1) it is not possible to arrange a proper lineup,

(2) there is an insufficient number of persons available with defendant’s physical characteristics,

(3) the nature of the case requires immediate identification,

(4) the witnesses are at a place far distant from the location of the in-custody accused, and

(5) the subject refuses to participate in a lineup and by his actions would seek to destroy the value of the identification.

Identification procedures are to be judged on the totality of the circumstances. People v Richmond, 84 Mich App 178, 181; 269 NW2d 521 (1978). Here it was the mutual decision of the police and the defense that the defendant’s middle age and distinctive physical characteristics (five feet, nine inches, 269 pounds) would prevent any fair lineup. There simply were not sufficient persons with similar characteristics available for lineup participation at the Wayne County jail. Thus, under Anderson, supra, it was not possible to arrange a proper lineup. We believe that the photographic identification thereafter utilized was an acceptable and reasonable alternative.

Defendant also contends that the photographic identification itself was impermissibly suggestive since only three of the six pictures used in the showup accurately depicted a man with the description originally given to police.

It has never been held that physical dissimilarities between the suspect and the other participants in a showup constitute impermissible suggestiveness per se. Richmond, supra. Even under normal circumstances, it would be unusual if the police had six persons with like characteristics locked up in the same jail. People v Lloyd, 5 Mich App 717, 724; 147 NW2d 740 (1967). When the police are confronted with a person of unique characteristics such as the defendant, finding sufficient comparable persons from the jail or from available police officers becomes extremely unlikely. Under these circumstances, one must judge any degree of suggestibility by the totality of the circumstances. See Richmond, supra, 181.

We believe that given the set of instant facts, the photographic identification was not impermissibly suggestive. Defendant’s counsel was present during the officer’s perusal of mug shots from which the showup photographs were selected. The officer testified that some 100 photographs were considered before the six were chosen. Defendant’s counsel did not object to the ultimate shots selected. If there were sharply distinguishing physical characteristics that the attorney did not notice which might have impaired the validity of the witness’s identification, this lack of trustworthiness could have been argued before the jury at trial. See People v Herrera, 42 Mich App 617; 202 NW2d 515 (1972).

"[T]he purpose of a lineup is identification. If the defendant is the tallest man in the lineup, and if he believes that this impairs the validity of the identification, he should see that the jury is apprised of that fact. This is a question of the weight to be given the lineup identification, not its admissibility. It presents no basis for a new trial.” Lloyd, supra, 724-725.

Defendant next alleges that the court erred when it permitted a radiologist to identify the discovered torso as that of Christal Davis through a comparison of chest x-rays. At trial, Dr. William Martel compared an x-ray of the burned torso and one taken of Christal Davis during her stay in a hospital approximately four and one-half years earlier. He stated that in his judgment both x-rays were taken of the same individual. Defense counsel objected, asserting that no foundation had been laid to show that this was a scientifically accepted and reliable method of identification. The trial judge ruled that Dr. Martel was qualified to give an opinion concerning the identification of the torso. We affirm that decision.

There is no question that Dr. Martel was sufficiently qualified as an expert witness, having testified that he was a professor of medicine at the University of Michigan Medical School and a specialist in the area of radiology for about 20 years. He stated that in his career he had viewed more than 100,000 x-rays, and had often viewed those films in order to establish that more than one was of the same person. Further, he had on previous occasions successfully measured his ability to match x-rays of the same individual. He indicated that identification of the x-rays was based upon wide variation in the shape of ribs and bone clavicles and calcific densities common within the cartilage of each one of the many ribs. Such densities, he noted, were very irregular in configuration. In comparing the ante and post mortem x-rays in the present case, Dr. Martel remarked that the calcification densities on every one of the ribs was "identical in the minutest irregularity”. After explaining the steps taken and circumstances relied on in arriving at his conclusion, the doctor concluded that, based on all three of the above factors, there was no doubt in his mind that the two x-rays were of the same person.

We are unable to agree with defendant that the question of admitting the testimony involved should be considered within the realm of "scientific evidence”, and thus subject to the requirement that the validity of the technological principle involved must first be shown to be accurate and acceptable within the scientific community. See, People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), People v Barbara, 400 Mich 352; 255 NW2d 171 (1977). We are not concerned with an unproven or disputed scientific instrument, such as a polygraph or voiceprint. Indeed, even if we were, the accuracy or legitimacy of the x-ray as a scientific procedure would not be open to refutation. Furthermore, it cannot be genuinely argued that the use and comparison of x-rays has not been sufficiently established and accepted within the medical profession.

We also note that, unlike polygraphs and voice-prints which are primarily used in connection with criminal law and investigation (and possibly suspect on that basis), x-ray technology has developed independent of the criminal justice system, and is not subject to the inherent dangers of the testimony of partial or interested witnesses whose livelihood depends upon the acceptance of the technique involved. Tobey, supra, 145. Nor is the question of the correlative relation between an instrument’s physiological accuracy and its capability to perceive or annul deceptive efforts present in the case of x-ray.

While defendant maintains that identification by x-ray, as opposed to the underlying scientific technique of the x-ray procedure itself, is at issue here, we believe the question is properly one of opinion testimony typically within the competence and province of an expert witness. See Commonwealth v Devlin, 365 Mass 149; 310 NE2d 353 (1974). Qualified as an expert, and relying on his experience in the field of radiology, Dr. Martel stated that, based upon the comparison of x-rays, the body discovered and Christal Davis, in his professional opinion, were one and the same. The evidence was properly before the jury, and, as with all expert testimony, was to be weighed by them as to its probative value. People v Gray, 57 Mich App 289, 296; 225 NW2d 733 (1975).

We have reviewed defendant’s other relevant claims of error and find them to be of no merit. The testimony of Marguerite Davis regarding the statements allegedly made by Christal Davis immediately prior to her disappearance was properly admissible under the state of mind exception to the hearsay rule. Hazen v Elmendorf, 365 Mich 624, 630; 113 NW2d 892 (1962), People v Solomon, 47 Mich App 208, 213; 209 NW2d 257 (1973), rev’d on other grounds 391 Mich 767 (1974).

Nor did the lower court err in denying defendant’s motion to quash the search warrants issued for defendant’s apartment and person, or in refusing to suppress evidence seized pursuant thereto. Absent the technically inaccurate factual statement contained in the affidavit to the apartment warrant, see People v Staffney, 70 Mich App 737, 742; 246 NW2d 364 (1976), lv den 401 Mich 819 (1977), both underlying affidavits included factual averments sufficient to support a finding of probable cause.

Affirmed.


author: V. J. Brennan, J.

text:
    J PROPES ELECTRIC COMPANY v DeWITT-NEWTON, INC
    Docket Nos. 77-5173, 77-5174, 77-5175, 77-5176.
    Submitted December 5, 1979, at Detroit.
    Decided May 5, 1980.
    On November 18, 1971, Thunderbird Investment Corporation contracted with DeWitt-Newton, Inc., as general contractor to build an inn. Construction began in November, 1971. Thunderbird obtained a mortgage loan from IDS Mortgage Corporation in the sum of $4,100,000, later increased to $4,300,000, which it recorded on April 11, 1972. By the spring of 1973 there were unpaid claims of $203,000 for authorized work not included in or provided for by the construction loan. IDS refused Thunderbird Investment’s request to increase the amount of the mortgage loan to cover these bills. Work began to slow down on the project and IDS authorized three construction draws, the last on or about September 14, 1973. A & A Electrical Services, a subcontractor, provided labor and materials under contract with DeWitt-Newton from the fall of 1973 until about January 2, 1974, when DeWitt-Newton was billed approximately $20,-000. On March 23, 1974, A & A again provided labor at DeWittNewton’s request and billed $328. On or about May 23, 1974, DeWitt-Newton served on Thunderbird Investment’s resident agent a notice of intent to claim a lien and a statement of account and lien, which was recorded on June 6, 1974, and a document entitled "unpaid bills on Thunderbird Hilton project, Plymouth, Michigan, subject to lien”. DeWitt-Newton did not serve IDS with a notice of intent to claim a lien, statement of account and lien, or statement of unpaid bills and did not name IDS as owner in its statement of account and lien filed with the Register of Deeds. Prior to the mailing and receiving of DeWittNewton’s statement of account and lien, on April 4, 1974, upon foreclosure of the construction mortgage, IDS Mortgage Corporation received a sheriffs deed to the inn property. The sheriffs deed was recorded April 5, 1974. J. Propes Electric Company and other subcontractors brought actions to enforce mechanics’ liens against the Thunderbird-Hilton Inn, which claims are now being asserted against the IDS Mortgage Corporation (IDS), the present owner of the inn, and DeWitt-Newton, Inc., the general contractor, for labor and materials supplied at the Thunderbird Hilton construction project. The cases were consolidated for trial. The Wayne Circuit Court, John D. O’Hair, J., granted judgment for all lienors against IDS. IDS appeals. Subsequent to the trial court judgment and the filing of this appeal all the subcontractors settled their claims with IDS, leaving DeWitt-Newton the sole appellee. Held:

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 839.
    53 Am Jur 2d, Mechanics’ Lien § 202.
    [2] 53 Am Jur 2d, Mechanics’ Lien §§ 151, 170-178.
    [3] 53 Am Jur 2d, Mechanics’ Liens § 268.

      1. The trial court found that work done on a construction project on March 23, 1974, was intended to further the project and the construction contract and was not simply a device to revive lien rights which had expired by statute. The court held the work was beneficial and necessary even though relatively small in comparison to the entire project. The Court of Appeals will not disturb such a conclusion clearly supported by the evidence.
    2. Failure to serve a statement of account and lien upon IDS and to name IDS as owner does not render the lien ineffective even though IDS acquired the property on April 4, 1974, prior to the sending of notice of intent to claim a lien on May 23, 1974, because the parties were in direct dealing regarding the project.
    3. All properly perfected mechanics’ liens based on projects commenced before the filing of a construction mortgage take priority over that mortgage.
    Affirmed.
    1. Mechanics’ Liens — Construction Contracts — Labor and Materials — Good Faith — Appeal.
    A trial judge’s conclusion that labor and material furnished within the statutory period but after a construction contract had been substantially completed were supplied in good faith and to complete the contract rather than to revive a mechanic’s lien and that the work was intended to further the project and the construction contract were findings of fact and, where supported by the proofs, will not be disturbed on appeal.
    2. Mechanics’ Liens — Notice op Intent — Direct Dealing — Owners — Contractors.
    A mechanic’s lien is not rendered ineffective by the failure of a contractor to give an owner notice of its intent to claim a lien where the parties were in direct dealing regarding the construction project; owners in direct dealing fall within the statutory direct dealing exception of the mechanics’ liens statute (MCL 570.6; MSA 26.286).
    3. Mechanics’ Liens — Mortgages — Construction Mortgages — Priority.
    All properly perfected mechanics’ liens based upon projects commenced before the filing of a construction mortgage take priority over that mortgage; partial ownership of the construction project does not, by itself, defeat the priority of the contractor’s lien over such a construction mortgage (MCL 570.9; MSA 26.289).

      Weiner & Hauser (by J. Laevin Weiner), for defendant-appellee DeWitt-Newton, Inc.

      Dykema, Gossett, Spencer, Goodnow & Trigg (by Laurence D. Connor), for defendant-appellant IDS Mortgage Corporation.
    Before: Mackenzie, P.J., and V. J. Brennan and D. F. Walsh, JJ.
   V. J. Brennan, J.

This is an appeal from the consolidated trial of four cases in which mechanics’ liens were asserted against the Thunderbird Hilton Inn by five subcontractors and the general contractor, DeWitt-Newton, defendant-appellee. The lower court entered judgment in favor of all of the lienors against IDS, defendant-appellant, the present owner of the Inn. IDS appeals. Subsequent to judgment and the filing of this appeal, the five subcontractors reached a settlement with defendant IDS. Therefore, DeWitt-Newton is the sole appellee.

This case arose out of a construction project known as the Thunderbird Hilton Inn (hereinafter the Inn). On November 18, 1971, Thunderbird Investment Corporation entered into a construction contract with DeWitt-Newton whereby DeWitt-Newton as general contractor agreed to build the Inn. Construction began in late November of 1971.

Subsequently, Thunderbird Investment Corporation obtained a mortgage loan from IDS Mortgage Corporation in the initial amount of $4,100,000. That amount was increased to $4,300,000 and the mortgage was recorded on April 11, 1972.

As work progressed, it became apparent that the cost of completing the structure was greater than initially planned. In the spring of 1973, there were unpaid claims amounting to $203,000 for extra work authorized by the general contractor and Thunderbird Investment Corporation, as owner, but which were not included in or provided for by the construction loan with IDS.

In April or May of 1973, Thunderbird Investment Company applied to IDS for an increase in the amount of the mortgage loan to cover these bills. This request was refused. Work began to slow down on the project after May of 1973. The general contractor secured the project for the winter and, for such purposes, IDS authorized three construction draws, the last of which was made on or about September 14, 1973.

In the fall of 1973, DeWitt-Newton contracted with A & A Electrical Services. A & A performed work and provided materials until on or about January 2, 1974, at which time DeWitt-Newton was billed approximately $20,000 for these services. In March of 1974, DeWitt-Newton requested that A & A perform assorted electrical services in the bathrooms and on exit signs and to do general clean-up work on the project. The work was done on March 23, 1974, and DeWitt-Newton was billed $328.

On or about May 23, 1974, DeWitt-Newton served Thunderbird Investment Corporation’s resident agent with an intent to claim a lien, a statement of account and lien and a document entitled "unpaid bills on Thunderbird Hilton project, Plymouth, Michigan, subject to lien”. The statement of account and lien was subsequently recorded in the office of the Wayne County Register of Deeds on June 6, 1974.

The Inn property was purchased April 4, 1974, through the foreclosure sale of the IDS Construction mortgage, at a sheriffs sale. The sheriffs deed to IDS was recorded on April 5, 1974, in the office of the Wayne County Register of Deeds.

Following a hearing, Judge John D. O’Hair entered a very thorough and well written opinion in favor of DeWitt-Newton Corporation and the five subcontractors. IDS appeals from two of the trial court’s findings. We first address Judge O’Hair’s finding that DeWitt-Newton substantially complied with the recording and notice requirements of the mechanics’ lien act.

IDS asserts that the trial court’s finding was erroneous on two grounds. First, IDS argues that DeWitt-Newton did not comply with MCL 570.5; MSA 26.285 and file its statements of account and lien within 90 days after furnishing the last labor and materials on the project pursuant to its contract with Thunderbird Investment Corporation. DeWitt-Newton mailed its statement of account and lien on or about May 23, 1974. Since the last work on the project was done on March 23, 1974, by A & A Electrical Company, DeWitt contends that the statement of account and lien was timely filed. IDS does not dispute that A & A performed work on the project on March 23, 1974, but argues that the work was not done in good faith but merely to revive DeWitt’s lien rights. Whether labor and material furnished within the statutory period but after the contract has been substantially completed were furnished in good faith and for the purpose of completing the contract or to revive the lien is a question of fact. Neely v International Corn Products Corp, 232 Mich 81, 86; 205 NW 96 (1925). Sacchetti v Recreation Co, 304 Mich 185, 190; 7 NW2d 265 (1943).

The work done on March 23, 1974, consisted of repair work on the exit lighting and in the second floor bathrooms. This work was done at the request of DeWitt-Newton and was part of A & A’s October, 1973, contract. A & A billed DeWitt-Newton $21,889.05 for work done from October, 1973, to January 2, 1974. The bill for the March 23rd work was $328. Although IDS alleges that the work performed after September, 1973, was for the purpose of sale or to avoid bond liability, this allegation is not supported by the record. Rather it appears the work was done to attract additional financiers for the project. Admittedly, the work on the project was slowing down due to lack of money. However, it appears that the Thunderbird Investment Company was seeking new money to bolster the project. A & A’s testimony that the March 23rd work was done under the original contract is uncontroverted. There was no allegation that the work was not done, that it did not benefit the project or that it was done in an unworkmanlike manner. Judge O’Hair concluded that:

"The Court is satisfied that the work done at the project in the latter part of March, 1974, was intended to further the project and the construction contract, and was not simply a device to afford DeWitt-Newton the opportunity to record its statement of account and lien within the time period prescribed by MCLA 570.5. Though the amount of work done at the project was relatively small in comparison to the entire project, it was beneficial and necessary.”

We decline to disturb this conclusion since it was clearly supported by the proofs. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), Smith v Michigan State Accident Fund, 403 Mich 201, 204; 267 NW2d 909 (1978).

IDS next asserts that DeWitt-Newton’s failure to serve its statement of account and lien upon IDS and to name IDS as an owner on same renders DeWitt-Newton’s lien ineffective in light of MCL 570.5; MSA 26.285, and MCL 570.6; MSA 28.286. IDS argues that since it purchased the Inn on April 4, 1974, at a foreclosure sale and obtained a sheriffs deed, its equitable interest in the property, Gerasimos v Continental Bank; 237 Mich 513, 519-520; 212 NW 71 (1927), Gage v Sanborn, 106 Mich 269; 64 NW 32 (1895), makes it an "owner” within the meaning of the mechanic’s lien act. While this argument is persuasive, we do not here determine its merit since resolution of this issue is controlled by the "direct dealing” language of MCL 570.6; MSA 26.286. It is undisputed that IDS and DeWitt-Newton were in direct dealings regarding the Thunderbird Inn project. As such, if IDS were an "owner” it fell within the statutory direct-dealing exception and DeWitt-Newton was not required to give IDS notice of its intent to claim a lien. Burton Drywall, Inc v Kaufman, 402 Mich 366; 263 NW2d 249 (1978).

For the reasons stated we conclude that there was substantial compliance with the various requirements of the mechanic’s lien act in the present case.

IDS’s final argument is that the trial court erred in finding that DeWitt-Newton’s mechanics’ lien was superior to IDS’s construction mortgage. We disagree.

It is clear that all properly perfected mechanics’ liens based upon projects commenced before the filing of a construction mortgage take priority over that mortgage. MCL 570.9; MSA 26.289 provides in pertinent part:_

"The several liens herein provided for shall continue for 1 year after such statement or account is recorded in the office of the register of deeds, and no longer unless proceedings are begun to enforce the same as hereinafter provided, and such liens shall take priority as follows:
"Third, They shall be preferred to all other titles, liens or incumbrances which may attach to or upon such building, machinery, structure or improvement, or to or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said building or buildings, erection, structure or improvement”.

Williams & Works, Inc v Springfield Corp, 76 Mich App 541; 257 NW2d 160 (1977), Wallich Lumber Co v Golds, 375 Mich 323; 134 NW2d 722 (1965).

In this case the parties do not dispute that the general contractor entered into a contract with Thunderbird Investment Corporation to construct the Inn on November 18, 1971, that work on the Inn began in November, 1971, and that defendant IDS’s construction mortgage was not recorded until April 11, 1972. Based on these facts, DeWittNewton’s mechanics’ lien should take priority over IDS’s construction mortgage.

IDS argues, however, that since DeWitt-Newton owned 20% of the outstanding stock of Thunderbird Investment Company, owner of the Thunderbird Inn, DeWitt-Newton was in effect a partial owner of the Inn. As such, IDS contends, DeWittNewton is precluded by Heide v Societatea Romana, 262 Mich 394; 247 NW 702 (1933), from claiming that its mechanics’ lien has priority over IDS’s construction mortgage. We decline to read Heide as broadly as IDS urges.

In Heide, plaintiffs undertook in October, 1928, to construct an assembly hall for the defendant Society. By May of 1929, while construction was in progress, the Society ran out of funds. "Anxious to procure a loan upon the property in order to proceed with the work and pay subcontractors, material men, and laborers, as well as plaintiffs”, id., 395, the Society and plaintiffs made joint but unsuccessful efforts to procure financing. The parties then agreed that if plaintiffs could obtain a loan, "the society would execute a deed to them and they would execute a mortgage to secure an issue of bonds and then reconvey the property to the society, subject to the mortgage”. Id. A written agreement was prepared, the parties continued to work in concert and induced a lender to take a mortgage for $50,000 and to advance monies from time to time thereunder to pay subcontractors and the plaintiffs. The mortgage was duly executed and various sums advanced, the building was completed, and then plaintiffs filed a lien for the balance of the contract price and for extras. This lien excluded all sums paid subcontractors, materialmen and laborers by the mortgagee. On appeal, plaintiffs claimed priority of the lien because the mortgage was subsequent to the commencement of work under the building contract.

Finding that plaintiffs took an active part in inducing the lender to take the mortgage and presented its own sworn statement of the amount due under the contract to the lender, the Supreme Court held that "loss of otherwise priority may arise where contractors, in effect, by affirmative action, induce or procure a mortgage to be given for their benefit and participate in the proceeds”. Id., 400. (Emphasis added.)

We agree with DeWitt-Newton’s analysis that the basis of the Heide decision is the agreement between the owner and the contractor, the active participation of the contractor in seeking the construction loan, its presentation of a sworn statement to the construction lender directly to induce the making of that loan and the totality of the circumstances surrounding the three parties.

While the general contractor in Heide was also an owner of the project, this fact was incidental to the issue considered by that Court. We do not read Heide as stating that simply by virtue of being an owner of the project the general contractor-owner loses the priority of his mechanics’ lien to a construction mortgagee. Nor do we find IDS’s argument that since DeWitt-Newton did not include $203,000 worth of "extras” due the subcontractors in the sworn statements or certificates of the contract-buyer submitted to IDS, DeWitt-Newton is now estopped from asserting its mechanics’ lien as superior to the mortgage lien. This $203,000 arose in the spring of 1973 and represented unpaid claims for extra work authorized by DeWitt-Newton and the owner, Thunderbird Investment Corporation, but were not included in or provided for by the construction loan with IDS. Although Thunderbird Investment Company applied to IDS for an increase in the amount of the mortgage loan to cover these bills, IDS refused the request: Clearly, IDS was not prejudiced by this statement since it not only refused to grant the requested increase, but both the owner and IDS admitted knowledge of the $203,000 extras prior to presentation of the sworn statement. Additionally, we note that since the statement only covered sums paid out under the mortgage, the inclusion of the $203,000 would have served no purpose.

Aside from the argument made as to the $203,000, there is no allegation that DeWitt-Newton affirmatively induced or procured IDS to give a mortgage for its benefit. Absent a finding of factual circumstances comparable to those found in Heide, we are unwilling to extend the holding of that case to cover the instant one. Here, the trial court correctly applied the general priority rule and found DeWitt-Newton’s mechanics’ lien superior to IDS’s mortgage.

Affirmed. Costs to be paid by appellant.

       MCL 570.5; MSA 26.285 provides in pertinent part:
      "Every person, or his agent or attorney, whether contractor, subcontractor, material man or laborer, who wishes to avail himself of the provisions of this statute, shall make and record in the office of the register of deeds, in the county or counties in which said real estate, house, swimming pool, building, structure or improvement to be charged with the lien is situated, a just and true statement or account of the demand due him, over and above all legal setoffs, setting forth the time when such materials were furnished or labor performed, and for whom, and containing a correct description of the property to be charged with the lien, and the name of the owner, part owner or lessee, if known, which statement shall be verified by affidavit. Such verified statement or account shall be recorded within 90 days from the date on which the last of the materials shall have been furnished or the last of the labor or the last of the designing, engineering or surveying services shall have been performed or the last day of use of any rented or leased equipment by the person claiming the lien.”

       See footnote 1.

       MCL 570.6; MSA 26.286 provides in pertinent part:
      "Every person recording such statement or account as provided in the preceding section, except those persons contracting or dealing directly with the owner, part owner or lessee of such premises, shall within 10 days after the recording thereof, serve on the owner, part owner or lessee of such premises, if he can be found within the county or in case of his absence from the county, on his agent having charge of such premises, within the county wherein the property situated, a copy of such statement or claim; * * * before any subsequent proceedings shall be taken for the enforcement of such lien.”

       MCL 570.29; MSA 26.309 defines owner as follows:
      "For the purpose of this act the words 'owner, part owner or lessee’ shall be construed to include all the interest, either legal or equitable, which such person may have in the real estate upon which the improvements contemplated by this act are made, including the interest held by any person under contracts of purchase, whether in writing or otherwise.”

       See footnote 3.