Hund v. Hund, 334313

• Decision Date: 06 July 2017
• Docket Number: No. 334313,334313
• Parties: GARY R. HUND, Plaintiff/Cross-Defendant-Appellee, v. NATALIE T. HUND, Defendant/Cross-Plaintiff-Appellant.
• Court: Court of Appeal of Michigan — District of US

GARY R. HUND, Plaintiff/Cross-Defendant-Appellee, v. NATALIE T. HUND, Defendant/Cross-Plaintiff-Appellant.

No. 334313

STATE OF MICHIGAN COURT OF APPEALS

July 6, 2017

UNPUBLISHED

Livingston Circuit Court

LC No. 12-047005-DM

Before: GADOLA, P.J., and JANSEN and SAAD, JJ.

GADOLA, P.J. (dissenting).

I respectfully dissent. In my opinion, defendant proved by a preponderance of the evidence that a change of domicile was warranted under the factors in MCL 722.31(4) of the Child Custody Act, MCL 722.21 et seq., and the trial court's finding that defendant's proposed move did not have the capacity to improve the child's life went against the great weight of the evidence. I further believe that the trial court abused its discretion by granting plaintiff's motion to change the child's custody.¹

I. DEFENDANT'S MOTION FOR CHANGE OF DOMICILE

As a preliminary matter, in my opinion, defendant's proposed move to Sarnia, Ontario should not have triggered the application of MCL 722.31. MCL 722.31(1) states the following:

Except as otherwise provided in this section, 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.

At the time the parties commenced the instant action, the child's legal residence was located at 4837 Mercer Road in Pinckney, Michigan. Defendant sought to relocate to Sarnia, Ontario, stating in her motion to change domicile that her new residence was 5.6 miles across the bridge and approximately 106 miles from the Pinckney residence. Although there are easily more than 100 road miles between the Pinckney residence and Sarnia, Ontario, for purposes of assessing the applicability of MCL 722.31 distance is measured by radial miles. Bowers v VanderMeulen-Bowers, 278 Mich App 287, 294; 750 NW2d 597 (2008). The radial distance from the Pinckney residence to the furthest outer edge of Sarnia, well beyond 5.6 miles past the bridge, is only approximately 90 miles. See People v Perry, 232 Mich 433, 442; 205 NW 151 (1925) ("Courts may take judicial notice of political boundaries, such as counties, cities, and townships."); McCroskey v Gene Deming Motor Sales, Inc, 94 Mich App 309, 311; 288 NW2d 418 (1979) (noting that courts may take judicial notice of the distance between locations).

In Gagnon v Glowacki, 295 Mich App 557, 566; 295 NW2d 557 (2012), this Court explained that, "[o]n 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." (Emphasis added.) However, relying on Mogle v Scriver, 241 Mich App 192, 202-203; 614 NW2d 696 (2000), the Gagnon Court nonetheless concluded that "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 . . . regardless of the distance involved if the proposed residence change involves leaving the state, then the factors under MCR 722.31(4) are the proper criteria for the court to consider." Gagnon, 295 Mich App at 566. In this case, the child's custody was governed by a court order that prohibited moving the child from the state without the permission of the court, so admittedly, the holding from Gagnon, 295 Mich App at 566, applies.

It is noteworthy, however, that the holding in Gagnon relies on Mogle, which was decided before the Michigan Legislature enacted MCL 722.31 by way of 2000 PA 422, effective January 9, 2001. In Mogle, 241 Mich App at 202-203, 203 n 2, this Court held that, "[i]n determining whether to grant a request to change a child's state of domicile, a trial court must consider" the D'Onofrio² factors. In Spires v Bergman, 276 Mich App 432, 437; 741 NW2d 523 (2007), this Court noted that, before the enactment of MCL 722.31, "the D'Onofrio factors were used to determine whether the relocating parent should be allowed to change a child's domicile."When the Legislature enacted MCL 722.31, however, it codified the circumstances in which the factors apply. Spires, 276 Mich App at 438. The Spires Court explained:

It is well settled that the Michigan Legislature has the power to change or modify the common law.³ The Legislature is presumed to be aware of the common law when it acts, and statutes must be interpreted in conformance with their express terms even if they conflict with the common law. [Id. (citations omitted).]

The Spires Court thus held that "[u]se of the D'onofrio factors in change-of-domicile cases is now exclusively controlled by MCL 722.31[.]" Id.; see also Brecht v Hendry, 297 Mich App 732, 742; 825 NW2d 110 (2012) (explaining that, under the decision in Spires, although a parent "must still seek the trial court's permission under MCL 3.211(C)(1)⁴ before moving a child subject to a custody order out of this state, if MCL 722.31 does not apply, the trial court has no obligation to consider the D'Onofrio factors").

As this Court noted in Gagnon, 295 Mich App at 566, "[o]n 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." (Emphasis added.) In my opinion, the plain language of MCL 722.31 supersedes the common-law application of the D'Onofrio factors and only applies in cases in which a relocating parent seeks to move more than 100 miles away, regardless of whether the proposed move would bring the child beyond state borders.⁵ Were I not constrained by this Court'sholding in Gagnon, see MCR 7.215(C)(2), (J)(1), I would thus hold that defendant should not have been subject to an inquiry under MCL 722.31. Reviewing the factors in MCL 722.31(4), however, I nonetheless conclude that the trial court's findings regarding the statutory change-of-domicile factors went against the great weight of the evidence.

MCL 722.31(4) states the following:

Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court's deliberations:

(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 moving party has the burden of establishing by a preponderance of the evidence that the change in domicile is warranted." Mogle, 241 Mich App at 203. If a parent sufficiently establishes the change-of-domicile factors in MCL 722.31(4), the trial court must then determine whether the modified residence would change the child's established custodial environment. Brown v Loveman, 260 Mich App 576, 598 n 7; 680 NW2d 432 (2004). If relocation would"result in a change in parenting time so great as to necessarily change the established custodial environment," the court must inquire into the best-interest factors in MCL 722.23. Id. at 594-595, 598 n 7. The moving party must then prove by clear and convincing evidence that the change of domicile is in the child's best interests. Id.

With regard to factor (a), I agree with the majority that MCL 722.31 does not require courts to consider only the immediate circumstances at the time a parent files a motion to change domicile because the statute is concerned with capacities and potentials. I disagree, however, that the evidence did not clearly show that defendant's proposed move to Sarnia had the capacity to improve the child's life. It is well established that an "increase in income that will elevate the quality of life of the relocating parent and child supports a finding that a party has met its burden of proof" under MCL 722.31(4)(a). Brown, 260 Mich App at 601. Tiernay testified that he was a mechanical engineer, and defendant explained that Tiernay made enough money that she would not need to work. The majority asserts that defendant did not demonstrate an "increased earning potential" in Sarnia because the evidence showed that she either would not work, given Tiernay's income, or, if she did work, she would perform the same kind of work she performed in Michigan. This analysis improperly ignores that the income of a relocating parent's spouse and a relocating parent's ability to stay home because of a spouse's income are both beneficial considerations when assessing whether a move has the capacity to improve a child's life. See Mogle, 241 Mich App at 204-205 (affirming a trial court's determination that a move had the capacity to improve the life of a child where the mother petitioned for a change of domicile on the basis of her new husband's assignment to an Air Force base in Virginia and explained that she would assume the role of a stay-at-home mother).

The majority suggests that defendant could benefit from Tiernay's income while living in Michigan and that her remarriage was not a positive consideration because the child had only known Tiernay for a few months. This Court has held, however, that when a ...