McKimmy v. Melling, Docket No. 298700.
| Decision Date | 10 February 2011 |
| Docket Number | Docket No. 298700. |
| Citation | 291 Mich.App. 577,805 N.W.2d 615 |
| Parties | McKIMMY v. MELLING. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Alane & Chartier, P.L.C., Lansing (by Natalie Alane), for plaintiff.
White & Hotchkiss, PLLC (by Kenneth R. Hotchkiss), for defendant.
Before: HOEKSTRA, P.J., and CAVANAGH and BORRELLO, JJ.
Plaintiff appeals by leave granted the trial court's order denying her motion for change of domicile. Because we conclude that the trial court misapplied factor (c) of the statutory change of domicile factors, MCL 722.31(4), we vacate the trial court's order and remand for new findings on factor (c).
Plaintiff and defendant are the parents of two young boys. They share joint legal custody of the boys, while plaintiff maintains sole physical custody. Defendant has parenting time every weekend from 9:00 a.m. on Saturday until 7:00 p.m. on Sunday. He consistently exercises his parenting time, and his bond with the boys is “[e]xceptional.”
In October 2009, plaintiff moved the trial court for permission to change the boys' domicile from Jackson, Michigan, to Minot, North Dakota, where her fiancé lived. At the evidentiary hearing, plaintiff testified that she had since married her fiancé and that they had purchased a four-bedroom house in a safe and family-oriented neighborhood in Minot. Plaintiff proposed a modified parenting-time schedule for defendant, where the boys would stay with defendant over the summer and on alternate holidays. Plaintiff also suggested that defendant could have regular contact with the boys over the telephone and the Internet. Defendant acknowledged that under plaintiff's proposed parenting time schedule, he would have substantially more overnights with the boys, but he believed that regular physical contact with the boys was necessary to maintain his bond with them.
The trial court denied plaintiff's motion for change of domicile. The trial court concluded that a move to North Dakota had the capacity to improve the quality of life for plaintiff and the two boys and that plaintiff's desire to move to North Dakota was not to defeat defendant's parenting time. However, it concluded that any benefits of the move were outweighed by the “potentially very dire” consequences on the relationship between defendant and the two boys. In reaching this conclusion, the trial court found the ages of the boys, three and four years, to be particularly relevant. It stated:
And at three and four years old you look for a lot of guidance and a lot of caring from your parents. And certainly at three and four years old you don't have a cell phone; you probably, these probably aren't kids that want to spend a whole heck of a lot of time on the phone; and they probably don't have a really long attention span when it comes down to sitting down and Skyping with dad or, or having that kind of relationship. And so much of preserving and fostering a relationship with younger children is simply being there and performing those tasks with them, and being as [defendant's attorney] referenced, being there for, you know, certain events that they go through and, and being able to be there and having the capacity and ability to be there to give them a hug, and, and that's not to say that you can't be an exceptional parent over the phone or via technology. I think—I, the court just thinks that with, with the children's ages it's probably a little more difficult to say that telephone contact and email contact and Skyping is gonna be as meaningful as, for a three and four year old, as having them spending time weekly in the physical presence of their dad.
The trial court recognized that defendant would have “nonstop parenting time” during the summer under plaintiff's proposed parenting-time schedule, but noted that “the cost” would be defendant having only very limited contact with the children during the remaining nine months of the year. It thought there was “a real possibility” that defendant's relationship with the two boys would suffer; it was unsure how well the relationship could be maintained if the boys were not in the physical presence of defendant each week.
On appeal, plaintiff argues that the trial court improperly analyzed factor (c) of the statutory change of domicile factors, MCL 722.31(4). Specifically, plaintiff maintains that the trial court fixated too heavily on the frequency of the visits under her proposed parenting-time schedule and whether the two boys could effectively use technology, while failing to consider whether awarding defendant extended periods of parenting time would preserve and foster the parent-child relationship. We agree that the trial court erred in its application of factor (c), but for a reason different than that argued by plaintiff.
We review for an abuse of discretion a trial court's ultimate decision whether to grant a motion for change of domicile. Brown v. Loveman, 260 Mich.App. 576, 600, 680 N.W.2d 432 (2004). However, the trial court's findings of fact regarding the statutory change of domicile factors are reviewed 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. Rittershaus v. Rittershaus, 273 Mich.App. 462, 472–473, 730 N.W.2d 262 (2007). But where a trial court's findings of fact may have been influenced by an incorrect view of the law, our review is not limited to clear error. Beason v. Beason, 435 Mich. 791, 804–805, 460 N.W.2d 207 (1990).
“[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.” MCL 722.31(1). However, the prohibition in subsection (1) does not apply if the other parent consents to the move or the court, after complying with subsection (4), permits the change of residence. MCL 722.31(2). MCL 722.31(4) provides:
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.1
The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that the change is warranted. Mogle v. Scriver, 241 Mich.App. 192, 203, 614 N.W.2d 696 (2000).
Implicit in factor (c) is an acknowledgement that weekly visitation is not practicable when parents are separated by state borders. Brown, 260 Mich.App. at 603, 680 N.W.2d 432. Indeed, when the domicile of a child is changed, the new visitation plan need not be equal with the old visitation plan, as such equality is not possible. Anderson v. Anderson...
To continue reading
Request your trial
-
Grange Ins. Co. of Mich. v. Lawrence
...motions as motions for a change of domicile. See Rains v. Rains, 301 Mich.App 313, 836 N.W.2d 709 (2013); McKimmy v. Melling, 291 Mich.App. 577, 580–82, 805 N.W.2d 615 (2011). The courts loose use of the terms “residency” and “domicile” in the context of motions to change residency under MC......
-
Gagnon v. Glowacki
...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 reside......
-
Yachcik v. Yachcik
...and convincing evidence. 3D'Onofrio v. D'Onofrio , 144 N.J.Super. 200, 206–207, 365 A.2d 27 (1976).See also McKimmy v. Melling , 291 Mich.App. 577, 582, 805 N.W.2d 615 (2011) ("The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that......
-
Rains v. Rains
...[its] 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). However, “where a trial court's findings of fact may have been influenced by an incorrect view of the law, our review is n......