Gagnon v. Glowacki

• Decision Date: 06 March 2012
• Docket Number: Docket No. 303449.
• Citation: 295 Mich.App. 557,815 N.W.2d 141
• Parties: GAGNON v. GLOWACKI.
• Court: Court of Appeal of Michigan — District of US

295 Mich.App. 557

815 N.W.2d 141

GAGNON

v.GLOWACKI.

Docket No. 303449.

Court of Appeals of Michigan.

Submitted Jan. 11, 2012, at Detroit.

Decided March 6, 2012, at 9:05 a.m.

Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec) for Randi Gagnon.

Gentry Law Offices, P.C., Whitmore Lake (by Kevin S. Gentry), for Gary Glowacki.

Before: JANSEN, P.J., and WILDER and KIRSTEN FRANK KELLY, JJ.

WILDER, J.

Defendant appeals as of right the trial court's order granting plaintiff's request to change the domicile of their minor child from Michigan to Windsor, Ontario. We affirm.

I. BASIC FACTS

Plaintiff and defendant never married and had a son together, who was born on September 19, 2005. Around the time that the child was born, plaintiff and defendant stopped dating. Since birth, the child has lived with plaintiff in her grandmother's home in Plymouth. Defendant lives approximately 11 1/2 miles away in Farmington Hills and is married. He and his wife have a child of their own, who was born in June 2010.

A court order awarded plaintiff and defendant joint legal and joint physical custody of their child. The order provided that the child would primarily reside with plaintiff with defendant having parenting time every Tuesday and Thursday evening and alternate weekends. Additionally, defendant received an overnight with the child every other Thursday night.

Plaintiff worked as an assistant in a latch-key program in the Plymouth–Canton School district from 2003 until 2006, when she decided to quit because she determined that the cost of providing child care for her son was almost as much as her income. Plaintiff then became a nanny for her friend's children until the end of 2009, which allowed her to take care of her son at the same time. During this time, plaintiff attempted to further her education by attending a paramedic class on Saturdays. Defendant would watch and care for their son while plaintiff was in class. Eventually, plaintiff quit to take care of her grandmother, who was in failing health.¹ In August 2007, plaintiff's car was repossessed because she could not afford to keep current with the payments. In 2009, she began to attend classes at a community college to study criminal justice. However, just a few months later, plaintiff lacked the means to get to the school because her friend would no longer allow her use of the friend's car. Consequently, plaintiff stopped attending the classes.

Plaintiff has tried to find other jobs in Michigan within walking distance of her home. Because of her desire to be home when the child was home, she limited her work availability to every other weekend and 12:30 p.m. to 3:30 p.m. Monday through Friday, when the child would either be with defendant or at preschool. Plaintiff did not receive any offers or call backs.

Because of her lack of employment, plaintiff was relying on child support and public assistance from the State in the form of a bridge card. Because the monthly mortgage payment was $918 she could not continue to afford to live in her grandmother's home. After plaintiff's grandmother passed away, title in the home went to plaintiff's mother, who assumed the existing mortgage. Plaintiff was paying a portion of the mortgage ($500) each month to her mother. More recently, plaintiff has not been able to afford the $500, so her mother has been paying the full mortgage amount. Plaintiff's mother testified that she is unable to continue paying the mortgage each month and that her intention is to sell the house.

Defendant is employed as a supervisor of the service department for an armored transport company and exercises additional parenting time as much as possible, bringing the child lunch, taking the child to McDonald's, and going on vacations. Defendant and the child talk on the phone two or three times per day, with the child initiating many of the calls. Defendant did the majority of transporting the child to preschool with his wife helping occasionally. Defendant also has been taking the child to ice skating classes on Tuesday evenings, during his parenting time. And defendant testified that he and the child have an “extremely strong” relationship and that their bond is “unbreakable.” Even plaintiff testified that the child “idolizes his father like a superhero. He loves his father.” Plaintiff added that the child looks to defendant for guidance and discipline in his day-to-day life when the child is with him.

Because of plaintiff's lack of access to transportation, defendant has always done all of the driving to and from Plymouth for his parenting time. It takes approximately 15 minutes to drive from his home in Farmington Hills to plaintiff's home in Plymouth. Defendant also has taken the child to all of his doctor appointments and dentist appointments.

Plaintiff desires to move to Windsor, where she grew up and her entire family still resides. Plaintiff also testified that she would gain access to a car because her mother and her mother's husband ² have four cars between them.³ Furthermore, plaintiff has a job offer to work, as a waitress at The Penalty Box, which is a restaurant in Windsor where her mother also works. The job would be for 25 to 30 hours per week making approximately $18 per hour, including tips. Plaintiff's mother would be available to care for the child while plaintiff was at work or school because she would quit her job if necessary. Plaintiff plans to live with her father in his three-bedroom house for a few weeks until she is able to rent an apartment on her own. Additionally, plaintiff plans for the child to attend St. Maria Goretti Catholic Elementary School, which is located near the home of her father.

On August 30, 2010, plaintiff filed a motion to change the domicile of the child from Plymouth to Windsor. After conducting a hearing, the trial court granted the motion. In its order dated February 8, 2011, it found that plaintiff successfully established by a preponderance of the evidence that the move was warranted. It also found that an established custodial environment existed with both parents and that the established custodial environment would not be affected with the move “if Defendant were given an additional weekend each month and were allowed to maintain his Tuesday and Thursday parenting time sessions if desired.” Because it found no change in the established custodial environment, the trial court found it unnecessary to consider any best-interests factors. The trial court also ordered plaintiff to drop off and pick up the child in Detroit for parenting time with defendant.

II. CHANGE OF DOMICILE: MCL 722.31

Defendant first contends that the trial court erred by addressing the change in legal residence factors set forth in MCL 722.31(4) from the perspective of plaintiff, rather than the child, and by improperly crediting some of plaintiff's factual claims. Defendant also suggests that other factual findings of the trial court were erroneous. We disagree.

We review a decision on a petition to change the domicile of a minor child for an abuse of discretion. Brown v. Loveman, 260 Mich.App. 576, 600, 680 N.W.2d 432 (2004). We review the trial court's findings in applying the MCL 722.31 factors under the great weight of the evidence standard. Id. “Under this standard, we may not substitute our judgment on questions of fact unless the facts clearly preponderate in the opposite direction.” McKimmy v. Melling, 291 Mich.App. 577, 581, 805 N.W.2d 615 (2011).

Under MCL 722.31(1) “a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued” without court approval. Before allowing a change of legal residence, a court must consider the following factors in MCL 722.31(4):

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

“The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that the change is warranted.” McKimmy, 291 Mich.App. at 582, 805 N.W.2d 615. In addition, MCL 722.31(4) requires that the trial court consider the factors “with the child as the primary focus in the court's deliberations.”

On its face, MCL 722.31 is only applicable when a parent attempts to change the domicile of a child to a location that is over 100 miles away. However, when a child's custody is governed by a court order that prohibits the child from moving to another state without the permission of the court, as is the case here, regardless of the distance involved if the proposed residence change involves leaving the state, then the factors under MCL 722.31(4) are the proper criteria for the court to consider.⁴ See Mogle v. Scriver, 241 Mich.App. 192, 202–203, 614 N.W.2d 696 (2000).

With regard to MCL 722.31(4)(a), capacity to...