Berger v. Berger

• Decision Date: 31 January 2008
• Docket Number: Docket No. 279025.
• Citation: 277 Mich.App. 700,747 N.W.2d 336
• Parties: Kristen BERGER, Plaintiff-Appellee, v. Derek Thomas BERGER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

747 N.W.2d 336

277 Mich.App. 700

Kristen BERGER, Plaintiff-Appellee, v. Derek Thomas BERGER, Defendant-Appellant.

Docket No. 279025.

Court of Appeals of Michigan.

Submitted January 15, 2008, at Lansing.

Decided January 31, 2008, at 9:00 a.m.

Kathleen Rezmierski, Attorney at Law, P.L.L.C. (by Kathleen Rezmierski), Jackson, for the plaintiff.

Judith A. Curtis, Grosse Pointe, for the defendant.

Before: FITZGERALD, P.J., and MARKEY and SMOLENSKI, JJ.

PER CURIAM.

Defendant appeals by right a judgment of divorce entered after a six-day trial. We affirm in part, reverse in part, and remand for further proceedings.

I

Defendant first argues that the trial court clearly erred by finding that plaintiff satisfied the 10-day jurisdictional residency requirement of MCL 552.9(1).¹ We disagree.

A claim that the trial court lacked jurisdiction is a question of law that this Court reviews de novo. Reed v. Reed, 265 Mich.App. 131, 157, 693 N.W.2d 825 (2005). But whether a party has satisfied the requirement of MCL 552.9(1) and "has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint" presents a question of fact. See Smith v. Smith, 218 Mich.App. 727, 730-731, 555 N.W.2d 271 (1996); Leader v. Leader, 73 Mich. App. 276, 281, 283, 251 N.W.2d 288 (1977). This Court reviews for clear error the factual findings underlying the trial court's rulings. MCR 2.613(C); Beason v. Beason, 435 Mich. 791, 805, 460 N.W.2d 207 (1990). A finding is clearly erroneous if, on all the evidence, the Court is left with the definite and firm conviction that a mistake has been made. Id.

The trial court determined that plaintiff established residency in Jackson County on December 16, 2006. Although defendant points to some testimony by plaintiff that would support a contrary finding if viewed in isolation, we defer to the trial court's superior fact-finding ability, MCR 2.613(C), and are not left with a definite and firm conviction that a mistake was made when viewed in light of the whole record. Beason, supra at 805, 460 N.W.2d 207. Therefore, we cannot conclude that the trial court clearly erred in finding that plaintiff satisfied the 10-day residency requirement of MCL 552.9(1).

We do not agree with defendant's argument that MCL 552.9(1) requires plaintiff's continuing physical presence in Jackson County for the 10 days immediately preceding filing for divorce. The statute's plain language requires only that plaintiff had established her residence for the "10 days immediately preceding the filing of the complaint." Once plaintiff established and intended Jackson County as her residence on December 16, 2005, her temporary absence did not change it.

This Court in Leader, supra, held that the plaintiff satisfied the similar 180-day state residency requirement of MCL 552.9(1) even though the plaintiff lived in Kentucky for four months during the 180 days immediately preceding her filing for divorce in Michigan. The Leader Court determined on the basis of the plaintiff's intent that her residence remained Michigan. Leader, supra at 280, 251 N.W.2d 288. The Court's discussion of the statutory residency requirement is instructive in the present case.

The Leader Court observed that "residence" is "a place of abode accompanied with the intention to remain." Id. Further, the Court noted that in Michigan, domicile and residence are synonymous terms. Id. The Court also noted that because of modern society's mobility, for the purpose of determining residency, "physical presence for a longer period of time is no longer the key factor it once was." Id. at 281, 251 N.W.2d 288. The Court opined: "For many purposes, residence must be considered in light of a person's intent. Presence, abode, property ownership and other facts are often considered, yet intent is the key factor. This has been recognized in most jurisdictions and repeatedly cited." Id. (internal citation omitted).

The Leader case establishes two important principles applicable to the case at bar. First, determining residence or domicile requires a multi-factor analysis, but the preeminent factor is the person's intent. Second, an established domicile is not destroyed by a temporary absence if the person has no intention of changing his or her domicile. The trial court properly applied the first principle in finding that plaintiff established Jackson County as her residence on December 16, 2005. The court applied the second principle in finding that plaintiff "resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint" even if plaintiff slept one night in her Ann Arbor apartment during that 10-day period. The critical factor regarding this issue is whether the trial court clearly erred in finding that plaintiff established Jackson County as her residence by December 16, 2005. Our review of all the evidence at the jurisdictional hearing, with deference to the trial court's superior fact-finding ability, does not leave us with a definite and firm conviction that the trial court mistakenly found that plaintiff satisfied the 10-day jurisdictional requirement of MCL 552.9(1). Beason, supra at 805, 460 N.W.2d 207.

II

Defendant next argues that the trial court erred by finding that a custodial environment for the parties' children existed with plaintiff but not defendant. Defendant also argues that the trial court's findings regarding several of the statutory factors used to determine the best interests of the children were against the great weight of the evidence. We disagree.

The Child Custody Act, MCL 722.21 et seq., governs child custody disputes. The act is intended to promote the best interests of children, and it is to be liberally construed. MCL 722.26(1); Mason v. Simmons, 267 Mich.App. 188, 194, 704 N.W.2d 104 (2005).

This Court must affirm all custody orders unless the trial court's findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. MCL 722.28; Fletcher v. Fletcher, 447 Mich. 871, 876-877 (Brickley, J.), 900 (Griffin, J.); 526 N.W.2d 889 (1994). Thus, a trial court's findings regarding the existence of an established custodial environment and with respect to each factor regarding the best interest of a child under MCL 722.23 should be affirmed unless the evidence clearly preponderates in the opposite direction. Fletcher, supra at 879, 526 N.W.2d 889; Phillips v. Jordan, 241 Mich. App. 17, 20, 614 N.W.2d 183 (2000). This Court will defer to the trial court's credibility determinations, and the trial court has discretion to accord differing weight to the best-interest factors. Sinicropi v. Mazurek, 273 Mich.App. 149, 155, 184, 729 N.W.2d 256 (2006). The trial court's discretionary rulings, such as to whom to award custody, are reviewed for an abuse of discretion. Fletcher, supra at 879, 526 N.W.2d 889. An abuse of discretion exists when the trial court's decision 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. at 879-880, 526 N.W.2d 889, citing Spalding v. Spalding, 355 Mich. 382, 384-385, 94 N.W.2d 810 (1959). This standard continues to apply to a trial court's custody decision, which is entitled to the utmost level of deference. Shulick v. Richards, 273 Mich.App. 320, 325, 729 N.W.2d 533 (2006). This Court reviews questions of law for clear legal error that occurs when a trial court incorrectly chooses, interprets, or applies the law. Fletcher, supra at 881, 526 N.W.2d 889; Phillips, supra at 20, 614 N.W.2d 183.

A

Whether an established custodial environment exists is a question of fact that we must affirm unless the trial court's finding is against the great weight of the evidence. MCL 722.28; Mogle v. Scriver, 241 Mich. App. 192, 196-197, 614 N.W.2d 696 (2000). A finding is against the great weight of the evidence if the evidence clearly preponderates in the opposite direction. Sinicropi, supra at 155, 729 N.W.2d 256.

MCL 722.27(1)(c) provides that a 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. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship shall also be considered.

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. Baker v. Baker, 411 Mich. 567, 579-580, 309 N.W.2d 532 (1981). The existence of a temporary custody order does not preclude a finding that an established custodial environment exists with the noncustodian or that an established custodial environment does not exist with the custodian. Id. at 579, 309 N.W.2d 532; Moser v. Moser, 184 Mich.App. 111, 114-116, 457 N.W.2d 70 (1990). A custodial environment can be established as a result of a temporary custody order, in violation of a custody order, or in the absence of a custody order. Hayes v. Hayes, 209 Mich. App. 385, 388, 532 N.W.2d 190 (1995). 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. Foskett v. Foskett, 247 Mich.App. 1, 8, 634 N.W.2d 363 (2001).

The gist of defendant's argument is that because plaintiff was so busy outside the home, she could not have established a custodial environment with the children superior to that of defendant. At best, defendant argues, the...