Brecht v. Hendry, Docket No. 308343.

• Citation: 297 Mich.App. 732,825 N.W.2d 110
• Decision Date: 11 September 2012
• Docket Number: Docket No. 308343.
• Parties: BRECHT v. HENDRY.
• Court: Court of Appeal of Michigan (US)

297 Mich.App. 732

825 N.W.2d 110

BRECHT

v.HENDRY.

Docket No. 308343.

Court of Appeals of Michigan.

Submitted July 17, 2012, at Detroit.

Decided July 24, 2012.

Approved for publication Sept. 11, 2012, at 9:00 a.m.

Validity Called into Doubt

MCR 3.211(C)(1)

Neil C. Szabo, Flint, for the plaintiff.

John P. Lozano, for the defendant.

Before: TALBOT, P.J., and SERVITTO and M.J. KELLY, JJ.

M.J. KELLY, J.

Plaintiff, Melissa Danelle Brecht, appeals by leave granted the trial court's order denying her motion for permission to change the domicile of her daughter with defendant Lee Allen Hendry, II. Because we conclude that the trial court improperly applied the law governing a motion to change domicile, we vacate the trial court's order and remand for proceedings consistent with this opinion.

I. BASIC FACTS

Brecht and Hendry had their daughter in November 2007. In September 2009, the trial court awarded Brecht sole legal and physical custody of the child and gave Hendry parenting time. However, the order also provided that, at least 48 hours before exercising parenting time, Hendry had to notify Brecht about his intent to exercise parenting time and had to provide Brecht with the address and telephone number for the location where he intended to exercise the parenting time. As required under MCR 3.211(C)(1) and (3), the custody order provided that the domicile of the minor child could not be removed from the state of Michigan without the court's approval and that a parent whose custody or parenting time was governed by the order could not change the child's legal residence unless the change complied with MCL 722.31.

In June 2011, Hendry asked the trial court to order Brecht to show cause and requested to change the custody and parenting time order after Brecht moved to North Dakota with their daughter without first obtaining the trial court's permission. After holding a hearing, the trial court entered an order requiring Brecht to return the child to Michigan.

Thereafter, Brecht moved for permission to change the child's domicile from Michigan to North Dakota. At the evidentiary hearing Brecht presented evidence on the factors enumerated under MCL 722.31(4) and argued that the trial court should grant her motion on that basis. After considering the factors, the trial court denied the motion for a change in domicile.

In October 2011, Brecht moved for relief from the order under MCR 2.612(C)(1)(a), (e), and (f). Specifically, she argued that the trial court erred when it considered the factors stated under MCL 722.31(4) because those factors do not apply when a parent with sole custody seeks to change the child's domicile. She further argued that, in cases where a parent has sole custody, the court is required to approve a request to change the child's domicile out of state after the parent presents proof that he or she has sole custody. The trial court disagreed:

I absolutely appreciate counsel's argument that the court has no option and no choice in sole custody cases. I disagree with that. I believe that the court is required to look at what is in the best interest of the child.

And at this point based on the facts that this court has been presented with over and over and over with this case, I do not believe it is in her best interests to leave the State of Michigan. I am not vacating my order. The order will stand.

After the trial court entered an order denying Brecht's motion for reconsideration, Brecht appealed.

II. CHANGE OF DOMICILE

A. STANDARD OF REVIEW

On appeal, Brecht argues that the trial court erred when it denied her motion to change domicile on the basis of the factors enumerated under MCL 722.31(4). Specifically, she argues that the trial court cannot consider those factors when analyzing her request because our Legislature provided that those factors do not apply in situations involving sole custody. This Court reviews de novo the proper interpretation and application of statutes and court rules. Estes v. Titus, 481 Mich. 573, 578–579, 751 N.W.2d 493 (2008). This Court also reviews de novo as a question of law the proper interpretation and application of the common law, such as the common law governing petitions for a change of domicile. See Mich. Citizens for Water Conservation v. Nest1e Waters North America Inc., 269 Mich.App. 25, 53, 83, 709 N.W.2d 174 (2005), rev'd in part on unrelated grounds 479 Mich. 280, 737 N.W.2d 447 (2007).

B. CUSTODY, DOMICILE, AND COURT SUPERVISION

1. MCR 3.211(C)(1)

Michigan courts have the authority to resolve disputes concerning the custody of children, whether as an original action or incidentally from another action. See MCL 722.27(1). In such cases, the trial court must “ declare the child's inherent rights and establish the rights and duties as to the child's custody, support, and parenting time in accordance with this act.” MCL 722.24(1). Moreover, after a Michigan court has entered a judgment or order governing child custody, the court retains jurisdiction over the child and may modify its order or judgment until the child reaches—at the latest—age 19 years and six months. MCL 722.27(1)(c). Thus, Michigan courts have a continuing interest in protecting the children subject to custody orders and ensuring that the parents continue to meet their obligations.

Until 1963, a parent could change a child's domicile without the court's permission unless otherwise provided in the original judgment or order. However, in 1963, our Supreme Court adopted the General Court Rules, which included a provision requiring every judgment involving child custody to contain a requirement that parents obtain the court's permission before moving the child's domicile out of this state. See GCR 1963, 729.4(1). Our Supreme Court adopted this rule in order to ensure the efficient administration of our courts' continuing jurisdiction over children subject to court orders and to ensure that the Friend of the Court would have notice and an opportunity to make recommendations consistent with its obligations. See committee comments to GCR 1963, 727.2 (noting that courts may have difficulty exercising their jurisdiction when a parent moves the child from the state) and GCR 1963, 729.4 (noting that the purpose of GCR 1963, 729.4 was to “facilitate continuing supervision over the child”), reprinted in 4 Honigman & Hawkins, Mich. Court Rules Annotated (2d ed., 1967), pp. 390–391, 429.

This Court determined that GCR 1963, 729.4—current MCR 3.211(C)(1)—gave trial courts the discretion to approve or deny a parent's request to move a child's domicile from this state. See Lem v. Lem, 12 Mich.App. 174, 177, 162 N.W.2d 683 (1968) (reviewing the trial court's reasons for granting permission and determining that the decision was not an abuse of discretion). This Court did not at first provide the trial courts with any guidance for evaluating these requests; rather, the trial court could presumably premise its decision on any factors that it deemed relevant to the requested change and this Court would uphold those decisions as long as they did not amount to an abuse of discretion. See id. However, some panels of this Court instructed trial courts to consider the request in light of factors taken from the decision in D'Onofrio v. D'Onofrio, 144 N.J.Super. 200, 365 A.2d 27 (1976). See Scott v. Scott, 124 Mich.App. 448, 452, 335 N.W.2d 68 (1983); Henry v. Henry, 119 Mich.App. 319, 323, 326 N.W.2d 497 (1982); Watters v. Watters, 112 Mich.App. 1, 12–13, 314 N.W.2d 778 (1981).

Under the so-called D'Onofrio factors, a trial court should consider the rights of the noncustodial parent as well as the rights of the custodial parent in determining whether to grant the requested change in domicile:

“(1) ‘It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children.

“(2) ‘It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this State.

“(3) ‘It must likewise take into account the integrity of the noncustodial parent's motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations.

“(4) ‘Finally, the court must be satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed.’ ” [Henry, 119 Mich.App. at 323–324, 326 N.W.2d 497, quoting D'Onofrio, 144 N.J.Super. at 206–207, 365 A.2d 27.]

Eventually this Court held that trial courts must consider the D'Onofrio factors when resolving a parent's request to move the child's domicile outside this state. See Overall v. Overall, 203 Mich.App. 450, 458, 512 N.W.2d 851 (1994). Further, this Court recognized that MCR 3.211(C)(1) applied to both sole and joint custody orders. See Scott, 124 Mich.App. at 452, 335 N.W.2d 68 (applying the D'Onofrio factors to a joint custody situation); Henry, 119 Mich.App. at 324, 326 N.W.2d 497 (applying the D'Onofrio factors to a sole custody situation). Accordingly, under the common law applicable to requests for a change in domicile under MCR 3.211(C)(1), a parent with sole or joint custody could not change the domicile of a child to a location outside this state without obtaining the trial court's permission and the trial court had to make its decision after considering the D'Onofrio factors, but that decision would not be disturbed on appeal absent an abuse of discretion.

2. THE 100–MILE RULE

The common law...