Opinion
No. 338738
10-10-2017
JENNIFER L. WILSON, Plaintiff-Appellant, v. ANDREW JAMES HANEY, Defendant-Appellee.
UNPUBLISHED Montcalm Circuit Court
LC No. 2010-013025-DS Before: MURRAY, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Plaintiff appeals by right from the trial court's order denying her motion to change the domicile of her and defendant's 12-year-old daughter. We affirm.
In 2011, the trial court entered a stipulated order that granted sole physical and legal custody of the minor child to plaintiff. In exchange for the grant of custody, plaintiff agreed to waive defendant's child support arrearage and future child support. The order also stated that defendant shall have no visitation with the minor child.
In January 2017, plaintiff moved for a change in domicile. Plaintiff wished to move herself and the minor child from Sheridan, Michigan, to Milwaukee, Wisconsin, to live with her boyfriend. Defendant opposed the motion. The Friend of the Court held a hearing on plaintiff's motion. Testimony from plaintiff and defendant indicated that even though defendant had no legal visitation rights, he had consistent visitation with the minor child in the two or three years before the hearing. After hearing testimony, the Friend of the Court considered the D'Onofrio factors, which are codified in MCL 722.31(4). The Friend of the Court then found that because of "the practice of the parties," the minor child had an established custodial environment with plaintiff and defendant and that a change in domicile could alter the established custodial environment. It concluded that a change in domicile was not in the minor child's best interests. The Friend of the Court denied plaintiff's motion for change of domicile.
Plaintiff objected to the Friend of the Court's order and requested a de novo review of the order. Plaintiff argued that the Friend of the Court erred in considering the D'Onofrio factors because the factors do not apply in cases in which one parent has sole legal custody of the child. Following a two-part de novo review hearing, the trial court agreed that the D'Onofrio factors were not applicable because plaintiff had sole legal custody of the minor child. Still, the trial court determined that it was required to determine whether there was an established custodial environment, whether the proposed move would alter the established custodial environment, and whether the move was in the minor child's best interests. The trial court affirmed the Friend of the Court's findings on these issues and denied plaintiff's motion.
On appeal, plaintiff argues that because she had sole legal custody of the minor child, the trial court committed clear legal error when it considered the D'Onofrio factors. We disagree.
We review a trial court's decision on a motion for change of domicile for an abuse of discretion. Sulaica v Rometty, 308 Mich App 568, 577; 866 NW2d 838 (2014). "[A]n abuse of discretion exists when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias." Id. We review questions of law for clear legal error. Id. "A trial court commits legal error when it incorrectly chooses, interprets, or applies the law." Id.
This Court has previously articulated the analysis that a trial court must use when deciding a motion for change of domicile:
A motion for a change of domicile essentially requires a four-step approach. First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), the so-called D'Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. [Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709 (2013).]
However, MCL 722.31, including subsection (4), where the D'Onofrio factors are codified, does not apply to a motion for a change of domicile if the order governing the child's custody granted sole legal custody to one of the child's parents. MCL 722.31(2); Spires v Bergman, 276 Mich App 432, 437-438; 741 NW2d 523 (2007). Nonetheless, a trial court must still determine whether an established custodial environment existed, whether a change in domicile would modify that established custodial environment, and, if so, whether the change in domicile would be in the child's best interests by clear and convincing evidence. See Sulaica, 308 Mich App at 585-586; Rains, 301 Mich App at 325.
Plaintiff had sole legal custody of the minor child. Consequently, the Friend of the Court erred in considering the D'Onofrio factors. MCL 722.31(2); Spires, 276 Mich App at 437-438. The trial court, however, corrected the error at the de novo review hearing. The trial court stated that plaintiff, because she had sole legal custody, bypassed the first step in the analysis, but it was still required to determine whether the change in domicile would modify an established custodial environment, and if so, whether the change was in the best interests of the minor child. Based on the trial court's statements at the de novo review hearing, we find there is no merit to plaintiff's claim that the trial court applied the wrong legal framework. Although the trial court did not specifically explain each step in the applicable legal process, it essentially followed the steps outlined in Sulaica, 308 Mich App at 585-586, and Rains, 301 Mich App at 325.
Plaintiff also argues that the trial court's findings that the minor child had an established custodial environment with defendant and that a change in domicile was not in the minor child's best interests were against the great weight of the evidence. We review a trial court's factual findings under the great weight of the evidence standard. Yachcik v Yachcik, 319 Mich App 24, ___; 900 NW2d 113 (2017). "This Court may not substitute its judgment on questions of fact unless the facts clearly preponderate in the opposite direction." Rains, 301 Mich App at 324 (quotation marks, citation, and alteration marks omitted).
An established custodial environment is established "if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort." MCL 722.27(1)(c).
An established custodial environment is one of significant duration in which a parent provides care, discipline, love, guidance, and attention that is appropriate to the age and individual needs of the child. It is both a physical and a psychological environment that fosters a relationship between custodian and child and is marked by security, stability, and permanence. [Berger v Berger, 277 Mich App 700, 706; 747 NW2d 336 (2008).]"An established custodial environment may exist with both parents where a child looks to both the mother and the father for guidance, discipline, the necessities of life, and parental comfort." Id. at 707.
The trial court affirmed the Friend of the Court's findings that the minor child had an established custodial environment with plaintiff and defendant and that a change in domicile would alter the established custodial environment. At the Friend of the Court hearing, defendant testified that he had the minor child approximately 40% of the time, including "pretty much all summer" and "every weekend." Plaintiff acknowledged that defendant had "regular" and "consistent" parenting time with the minor child for the past couple years. The distance between Sheridan, Michigan, and Milwaukee, Wisconsin would make it difficult for defendant to have consistent visitation with the minor child. Although plaintiff offered to meet defendant one weekend a month to allow defendant to see the minor child, this would constitute a significant change from the parties' present arrangement. The Friend of the Court's findings that the minor child had an established custodial environment with plaintiff and defendant and that a change in domicile would alter the established custodial environment were not against the great weight of the evidence. Yachcik, 319 Mich App at 31.
The trial court also affirmed the Friend of the Court's finding that a change in domicile was not, by clear and convincing evidence, in the best interests of the minor child. Plaintiff argues that the Friend of the Court's findings on best-interest factors (b), (d), (e), (h), (i), and (j) were against the great weight of the evidence.
Regarding factor (b), "[t]he capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any," MCL 722.23(b), and factor (d), "[t]he length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity," MCL 722.23(d), we agree that the evidence showed that defendant had regular and consistent visitation with the minor child over the past two or three years. The Friend of the Court's findings that plaintiff and defendant were equal on these two factors were not against the great weight of the evidence. Yachcik, 319 Mich App at 31.
Regarding factor (e), "[t]he permanence, as a family unit, of the existing or proposed custodial home or homes," MCL 722.23(e), again, we note that evidence showed that defendant had regular and consistent visitation with the minor child over the past two or three years. Additionally, testimony showed that defendant had the support of extended family members. Although plaintiff had a boyfriend, she did not, as the Friend of the Court noted, have a "legal commitment" to him. The Friend of the Court's finding that plaintiff and defendant were equal on factor (e) was not against the great weight of the evidence. Yachcik, 319 Mich App at 31.
Factor (h) concerns "[t]he home, school, and community record of the child," MCL 722.23(h). Defendant testified that his sister helped the minor child with her school work and improve her grades so that the child would not be held back. The Friend of the Court's finding that factor (h) equally favored plaintiff and defendant was not against the great weight of the evidence. Yachcik, 319 Mich App at 31.
Regarding factor (i), "[t]he reasonable preference of the child, if the court considers the child to be of sufficient age to express preference," MCL 722.23(i), the court found in favor of defendant. Plaintiff testified that the minor child was "conflicted" about moving to Wisconsin. She explained that the minor child wanted to stay near family in Michigan, but was also excited about moving. According to defendant, the minor child definitely did not want to move to Wisconsin. Because the minor child was 12 years old, had lived in the Sheridan, Michigan area her entire life, and was close to her extended family members who lived there, the trial court's finding that the minor child would be "afraid or timid" to move to Wisconsin was not against the great weight of the evidence. Yachcik, 319 Mich App at 31. The trial court's finding that factor (i) favored defendant did not clearly preponderate in the opposite direction of the facts. Rains, 301 Mich App at 324.
Finally, regarding factor (j), "[t]he willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents," MCL 722.23(j), we agree that the evidence showed that plaintiff and defendant had worked together to facilitate the minor child's visitation with defendant without court intervention. The Friend of the Court also noted that both plaintiff and defendant acted civilly toward the other. The Friend of the Court's finding that plaintiff and defendant were equal on factor (j) was not against the great weight of the evidence. Yachcik, 319 Mich App at 31.
Having reviewed the findings on the best-interest factors, we cannot conclude that the trial court erred in determining that plaintiff had not proved by clear and convincing evidence that a change in domicile was in the best interests of the minor child. Rains, 301 Mich App at 382. Accordingly, the trial court did not abuse its discretion in denying plaintiff's motion to change domicile. Sulaica, 308 Mich App at 577.
We affirm.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Jane E. Markey
D'Onofrio v D'Onofrio, 144 NJ Supp 200, 206-207; 365 A2d 27 (1976).