Kernozek v. Hershey

Full title: KERNOZEK v. HERSHEY

Court: Michigan Court of Appeals

Date published: Apr 24, 1973

46 Mich. App. 393 (Mich. Ct. App. 1973)

208 N.W.2d 242

Opinion

Docket No. 13090.

Decided April 24, 1973.

Appeal from Wayne, Horace W. Gilmore, J. Submitted Division 1 November 13, 1972, at Detroit. (Docket No. 13090.) Decided April 24, 1973.

Complaint by Victor Kernozek and Helen Kernozek against Harvey Hershey and Lois Hershey for visitation privileges to see plaintiffs' grandchildren, the children of Harvey Hershey and his first wife, plaintiff's only child, who is deceased. Complaint dismissed. Plaintiffs appeal. Affirmed.

John J. Kraus, for plaintiffs.

I.R. Starr, for defendants on appeal.

Before: LEVIN, P.J., and V.J. BRENNAN and O'HARA,^_ JJ.

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

O'HARA, J.

This is an appeal of right from an order of the trial judge denying visitation privileges to the grandparents of two grandchildren aged eight and nine. They are the children of the grandparents' deceased daughter. Their father has remarried.

We have deep sympathy for the children who are caught in a cross fire resulting from the apparent irreconcilable differences between the stepmother, the father, and the grandparents.

To what end do we quote the testimony of the parties with its religious and ethnic crimination and recrimination? The grandparents allege and doubtless it is so that they miss seeing the children. The parents counter that after visits to them the children are upset and disturbed.

To what end do we quote the cold print of the statute¹ which permits the grant of visitation subject to the overriding best interests of the children?

1 MCLA 722.27a; MSA 25.312(7a)

At best this case becomes a test of credibility of the witnesses and the weight of the testimony. The trial judge observed all who testified. He assessed weight and credibility. He concluded it was not in the children's best interests to order visitation privileges. It would be ill-considered of us to substitute our judgment for his. We are hopeful that the unpleasantness and tension will abate as the children grow older in years and the contesting parties will substitute wisdom and charity for ill-will.

We find no basis to reverse the trial court.

Affirmed — costs to the appellees.

V.J. BRENNAN, J., concurred.

LEVIN, P.J., did not participate.