Brown v. Loveman, Docket No. 249016.

• Decision Date: 14 May 2004
• Docket Number: Docket No. 249016.
• Citation: 260 Mich. App. 576,680 N.W.2d 432
• Parties: Jamison Whiting BROWN, Plaintiff-Appellant, v. Courtney Hope LOVEMAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

680 N.W.2d 432

260 Mich. App. 576

Jamison Whiting BROWN, Plaintiff-Appellant, v. Courtney Hope LOVEMAN, Defendant-Appellee.

Docket No. 249016.

Court of Appeals of Michigan.

Submitted November 4, 2003, at Lansing.

Decided February 12, 2004, at 9:00 a.m.

Released for Publication May 14, 2004.

Sandor M. Gelman, P.C. (by Sandor M. Gelman), Troy, for the plaintiff.

Butzel Long (by Edward D. Gold, T. Gordon Scupholm, II, and Jack D. Shumate), Bloomfield Hills, for the defendant.

Before: O'CONNELL, P.J., and JANSEN and WILDER, JJ.

JANSEN, J.

Plaintiff appeals by leave granted from the trial court's order adopting a parenting time schedule proposed by defendant and an order dispensing with oral argument and denying his motions for stay and for rehearing, amendment, or clarification. We affirm in part, reverse in part, and remand for further proceedings.

On July 12, 1998, Marley Loveman-Brown was born to plaintiff and defendant. The parties never married, but lived together from the time Marley was born until sometime in the fall 2001, when they began maintaining separate residences.¹ By mutual agreement, the parties shared physical custody of Marley. Defendant was expected to graduate with a master's degree in April 2003, and applied for jobs in Michigan, Ohio, Wisconsin, Minnesota, New York, and California in the fall 2002. Plaintiff filed a complaint seeking an award of custody and a decree that Marley could not be removed from Michigan. Then, plaintiff moved for a status quo order and a referral to the friend of the court, seeking the same relief requested in the initial complaint, as well as the entry of an order requiring both parties to maintain the status quo, and restraining both parties from removing Marley from Michigan. Defendant filed a counterclaim for custody, support, and court authority to remove Marley from Michigan.

The parties appeared before the trial court and agreed to have the trial court enter a status quo order providing that until the trial court acts on the matter or until the parties reach an agreement, neither party would remove the child from the state, and that the parties would continue the existing parenting time schedule. Subsequently, the trial court entered an order directing that "the presently existing arrangements between the parties for custody and parenting time shall remain in place and the minor child shall not be removed from the State of Michigan during the pendency of this action and until further Order of the Court."

At a later date, the trial court heard opening statements from both parties, and their arguments concerning whether the D'Onofrio² factors or the best interest factors were applicable. Following the hearing, the trial court proposed the use of a "conference style" hearing, in which witnesses would be permitted to testify without being examined or cross-examined by counsel. At no time during the proceedings did either party object to the procedure. An evidentiary hearing or a conference style hearing was held, during which the witnesses generally read from prepared statements and were not subject to direct examination or cross-examination by counsel.

Defendant testified that she applied for jobs all over the country, including Michigan, Ohio, Minnesota, Wisconsin, California, and New York, and received two job offers: one in California with Ernest and Julio Gallo Winery, and one in New York for Maybelline, a division of L'Oreal, which included a starting salary of $90,000 a year, a $15,000 signing bonus, and the possibility for future advancement. Defendant testified that she researched schools in New York City to determine which school would be the best for Marley, who was to start kindergarten in September 2003. Defendant also testified that moving to New York City was not inspired by a desire to defeat or frustrate visitation by plaintiff, but was, rather, based on where she found employment that would improve her and Marley's quality of life. Defendant further testified that she would work hard to create parenting time opportunities for plaintiff and an opportunity for Marley to see her sisters.

Plaintiff is an associate at a landscape architecture firm in Michigan. Plaintiff has two daughters from a previous marriage, Jasmine, age ten, and Savannah, age six, who he indicates have a close relationship with Marley. Plaintiff testified that moving to New York would only have the potential to improve the quality of life for defendant, not for Marley. Plaintiff contended that if Marley went to New York, it would be impossible to maintain the same level of parenting time.

The trial court applied the D'Onofrio factors and stated on the record its finding that defendant sustained her burden of proof under the D'Onofrio factors and, thus, it allowed her to remove Marley from Michigan to New York. Then, the trial court directed each party to provide a proposed parenting time schedule within two weeks.

Defendant's proposed parenting time schedule provided that defendant would have parenting time during the school year and up to one weekend a month during the summer, and that plaintiff would have parenting time during the summer, as well as over winter break, mid-winter break, spring break, and up to two weekends a month during the school year. The trial court entered an order adopting defendant's proposed parenting time schedule, which stated "this Court finds that the parenting proposal offered by Defendant-mother is most reasonable and in the best interest of the minor child." The order allowed defendant to take Marley to New York on May 12, 2003.

Plaintiff moved for rehearing, amendment, or clarification. Plaintiff argued that the trial court's order adopting defendant's proposed parenting time schedule failed to directly address the issue of custody and, in effect, significantly changed the established custodial environment of the minor child without a full evidentiary hearing and defendant's establishment by clear and convincing evidence that a change of custody is in the minor child's best interest. Additionally, plaintiff requested clarification regarding whether the trial court's order constituted a custody order that was a final order for purposes of appeal. Subsequently, the trial court entered an order dispensing with oral argument and denying plaintiff's motions for stay and for rehearing, amendment, or clarification. On June 30, 2003, this Court: granted plaintiff's motion for immediate consideration; denied his motion to stay enforcement of the trial court's order; granted leave to appeal, limited to the issues raised on appeal, pursuant to MCR 7.205(D)(4); and on its own motion, ordered an expedited appeal.

Plaintiff's first issue on appeal is that the trial court erred in applying the standards set forth in D'Onofrio as opposed to those imposed by MCL 722.23, MCL 722.27, and MCL 722.31 where there had been no prior custody order and where the established custodial environment was with both parents. We agree in part and disagree in part.An issue of statutory interpretation, presents a question of law that is reviewed de novo. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003); Ronan v. Michigan Public School Employees Retirement System, 245 Mich.App. 645, 648, 629 N.W.2d 429 (2001).

Plaintiff contends that the trial court erred in applying the D'Onofrio factors, as opposed to the best interest factors, where there had been a prior status quo order and where the trial court determined that an established custodial environment existed with both parties. We find that the trial court did not err in applying the D'Onofrio factors when considering defendant's petition to change the minor child's residence. However, once the trial court granted defendant permission to remove the minor child from the state, and it became clear that defendant's proposed parenting time schedule would effectively result in a change in the child's established custodial environment with both parties, it should have engaged in an analysis of the best interest factors, MCL 722.23, to determine whether defendant could prove, by clear and convincing evidence, that the removal and consequent change in established custodial environment and parenting time was in the child's best interest.

The trial court evaluated the evidence under the four factors set forth in D'Onofrio, supra, as previously adopted by this Court. See, e.g., Overall v. Overall, 203 Mich.App. 450, 458, 512 N.W.2d 851 (1994); Bielawski v. Bielawski, 137 Mich. App. 587, 358 N.W.2d 383 (1984). Under the D'Onofrio test, the trial court must consider:

(1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is 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. [Overall, supra at 458-459, 512 N.W.2d 851; see also D'Onofrio, supra at 206-207, 365 A.2d 27.]

In applying the D'Onofrio factors, the trial court determined, with regard to the first factor, that moving to New York had the capacity to improve the quality of life for defendant and Marley because defendant "has been very determined and organized, and frankly it's admirable what she's been able to accomplish. But, more importantly, the...