Meghan Elaine Matthew v. Thomas William Trudell ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
MEGHAN ELAINE MATTHEW, UNPUBLISHED
April 5, 2017
Plaintiff-Appellant,
v No. 334911
Emmet Circuit Court
THOMAS WILLIAM TRUDELL, LC No. 14-104443-DM
Defendant-Appellee.
Before: BECKERING, P.J., and O’CONNELL and BORRELLO, JJ.
PER CURIAM.
Plaintiff appeals as of right a September 1, 2016, trial court order denying plaintiff’s
motion to change daughter IGT’s legal residence from Harbor Springs to Jenison. For the
reasons set forth in this opinion, we affirm.
I. FACTS
IGT was born in 2011, during the parties’ marriage. Before the divorce proceedings were
commenced in April 2014, plaintiff moved in with her current husband Trevor Matthew and had
given birth to his daughter on May 23, 2013. The trial court entered a consent judgment of
divorce on October 21, 2014 that awarded the parties joint legal and physical custody of IGT.
The trial court listed IGT’s domicile as both plaintiff’s mailing address in Harbor Springs and
defendant’s mailing address in Alanson. Further, the trial court found that IGT “ha[d] a legal
residence with each parent” and ordered that neither parent could change the child’s legal
residence “to a location that is more than 100 miles from the child’s legal residence with the
other party” unless permitted by the trial court or permitted under MCL 722.31. The court
awarded each party parenting time on a weekly basis and during holidays as agreed to by the
parties or pursuant to the trial court’s schedule if unable to agree.
Plaintiff testified that, around this time, defendant began living with his mother Carole
and an uncle named Mark. Plaintiff agreed that she and defendant followed the parenting time
schedule but plaintiff characterized Carole as IGT’s “primary caretaker” during defendant’s
parenting time.
Plaintiff moved to change IGT’s custody on October 21, 2015, shortly after her new
marriage. Plaintiff asserted that she and her husband were moving to Grand Rapids, specifically,
“the Jenison area” and testified that this move would cause the parties to live three and a half
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hours apart. Plaintiff amended her motion on October 26, 2015 to request a change in IGT’s
domicile, legal residence, and parenting time schedule.
The court scheduled an evidentiary hearing before a referee. At the hearing, plaintiff
testified that on or about November 3, 2015, her husband Matthew started a new job in the Grand
Rapids-area in production at Adams Plastics earning $11.78 per hour with full benefits including
health insurance for the family. Before that, Matthew worked as a subcontractor in Northern
Michigan as a skydiving instructor and IGT was on MiChild for health insurance. Matthew was
only able to obtain about three or four months of seasonable work per year as a skydiving
instructor and he did not have any benefits. Matthew wanted to relocate to Grand Rapids for
better job opportunities and plaintiff testified that there were no stable year-round manufacturing
jobs in Northern Michigan. Matthew owned a trailer home in Harbor Springs where he and
plaintiff resided with IGT and their daughter. After relocating, Matthew and plaintiff signed a
lease agreement on a two-bedroom apartment in Jenison.
Plaintiff testified that she enrolled at Ross Medical Education Center in Kentwood where
she planned to complete the accelerated six-month medical assistant program. At the time of the
hearing, plaintiff was completing the administrative portion of the medical assistant program by
taking online classes; however, plaintiff explained that for the clinical aspect of the program, she
needed to be in Grand Rapids. Plaintiff testified that clinical externships often led to job-
placement with an employer. She stated that the program had a 97-percent job placement rate
and stated that medical assistants can earn between $17 and $22 per hour in the Grand Rapids-
area. Plaintiff testified that there were more opportunities for medical assistants in the Grand
Rapids-area including three major hospital systems and multiple medical offices. She stated that
she researched the job market for medical assistants in Northern Michigan and determined that
there were not as many opportunities as in Grand Rapids. Plaintiff also obtained a part-time
secretarial job at a Metro Health office earning $12.00 per hour.
In contrast, in Northern Michigan, plaintiff worked a series of jobs in customer service
for a medical supplier, as a telephone receptionist for a skydiving scheduler, in addition to
working in asset-protection at Meijer. In November 2015, following a surgery, plaintiff quit her
last job in customer service where she earned $11.50 per hour with benefits. Plaintiff agreed that
there were secretarial jobs in Northern Michigan earning about $12.00 per hour, but she
maintained that she would have better opportunities to obtain a career-job in Grand Rapids as a
medical assistant.
Plaintiff explained that in Grand Rapids she would have more of a support network of her
dad and siblings and aunts, uncles and cousins. In contrast, in Northern Michigan, her only
relatives included her estranged mother and younger siblings; her relatives did not help her with
care for IGT. Plaintiff agreed that defendant did not miss any of his parenting time. Defendant
lived with his mother Carole and an uncle in a three-bedroom home. When IGT was with
defendant for his parenting week, IGT would share a room with Carole. Carole smoked and
provided most of the care for IGT, while defendant worked at FedEx as a deliveryman. IGT had
asthma and on two occasions returned from defendant’s home with pinworms and lice. Plaintiff
agreed that defendant was involved in IGT’s life including her school and medical decisions, but
Carole had to provide most of the daily care for IGT.
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Plaintiff testified that relocating to Grand Rapids would benefit IGT because it would
allow her to have a stable two-parent home to live in with her sister. In addition, plaintiff
testified that she did research and learned that Jenison schools were ranked higher than Petoskey
area schools and the crime rate was lower in Jenison. Furthermore, relocating to Grand Rapids
would provide financial stability and allow Matthew to have year-round employment and would
give her more career opportunities as a medical assistant. Plaintiff testified that there were more
opportunities for extracurricular and cultural activities and greater diversity in the Grand Rapids
area, which would be good for IGT in the long-term. Plaintiff testified that she proposed to have
parenting time during the week in Grand Rapids, while defendant could have parenting time
three weekends per month, holidays, summer break, and spring and other school breaks.
Plaintiff testified that defendant indicated he was opposed to the idea because he did not want
IGT in the car so much driving the three-hour trip to see him and because he thought that IGT
should grow up in the place where she was born.
On cross-examination, plaintiff agreed that there were secretarial jobs in Northern
Michigan similar to the one she recently obtained at Metro Health in Grand Rapids and she
agreed that there were jobs for medical assistants in Northern Michigan. However, plaintiff
maintained that there was lower demand in Northern Michigan and more career opportunities in
Grand Rapids. Plaintiff testified that she was attending Ross Medical Education Center with the
current parenting-time arrangement because she was able to complete some of the initial classes
online. However, plaintiff stated she would complete the clinical portion in Grand Rapids.
Matthew testified that he married plaintiff in October 2015. At the time, Matthew owned
a mobile home in Harbor Springs and worked as a skydiving instructor doing seasonal work.
Specifically, Matthew worked as an independent contractor and did not have benefits, although
he received a stipend for benefits. Matthew and plaintiff had a child together before they got
married. Matthew explained that, following the birth of his child and his marriage, he began to
have a different view on the inherent risks of skydiving so he decided to seek different
employment. Matthew looked at some opportunities in Northern Michigan, but they were
mostly seasonal work so he applied for manufacturing work in Grand Rapids. Matthew started
working full-time at Adams Plastics in Wyoming on or about November 3, 2015. Matthew
earned $11.78 per hour, which amounted to about the same amount that he would earn as a
skydiving instructor. However, unlike his former job, his new job included health, vision, dental,
and life insurance for his family. Matthew testified that Adams was expanding and hiring people
and there were no concerns about layoffs. Matthew stated that the new job at Adams was much
more stable than his work as a skydiving instructor. There was the potential for promotions and
raises. Matthew explained that he viewed his work at Adams as a “stepping stone” job to
something better and he planned to go back to school or find his own career after plaintiff
finished her schooling at Ross. Matthew stated that he planned to sell the trailer in Harbor
Springs if the court allowed IGT to move and he and plaintiff did not have a “plan B” in the
event the court denied plaintiff’s motion and they would need to discuss the issue. Matthew
stated that there were greater opportunities in Grand Rapids in the job market, education, and the
potential to see different people and cultures. He also had greater family support in Grand
Rapids.
Following the hearing, the referee recommended that the trial court deny plaintiff’s
motion to change IGT’s legal residence because plaintiff “failed to carry her burden” to show
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that the change was warranted pursuant to MCL 722.31(4). Because plaintiff failed to meet this
burden the referee reasoned that it was “unnecessary to examine whether there existed an
established custodial environment between [IGT] and Defendant.” Plaintiff objected to the
recommendation. She argued that that the testimony established by a preponderance of the
evidence that a change in legal residence should be granted pursuant to MCL 722.31(4).
Following a hearing, the trial court noted that plaintiff was apparently settled in Grand
Rapids and that IGT was about to start school. It affirmed the referee’s recommendation, finding
that plaintiff “failed to prove by a preponderance of the evidence that her proposed move of IGT
to Jenison, Michigan is warranted.” Its analysis centered on de novo review of MCL 722.31(4)
factors (a), (b), and (c); it found that plaintiff failed to meet her burden under any of these three
factors. The trial court found factors (d) and (e) irrelevant. This appeal ensued.
II. STANDARD OF REVIEW
Pursuant to MCL 722.28, in child custody disputes, “all orders and judgments of the
circuit court shall be affirmed on appeal unless the trial judge made findings of fact against the
great weight of evidence or committed a palpable abuse of discretion or a clear legal error on a
major issue.” Accordingly, this Court reviews for an abuse of discretion a trial court’s decision
on whether to grant a motion for change of domicile and its decision on whether to change
custody. Fletcher v Fletcher, 447 Mich. 871, 879-880; 526 NW2d 889 (1994); Sulaica v
Rometty, 308 Mich. App. 568, 577; 866 NW2d 838 (2014). The trial court’s findings of fact are
reviewed under the great weight of the evidence standard. Fletcher, 447 Mich. at 878-879. “This
Court may not substitute [its] judgment on questions of fact unless the facts clearly preponderate
in the opposite direction.” Rains v Rains, 301 Mich. App. 313, 324-325; 836 NW2d 709 (2013)
(quotation marks and citations omitted; alteration in original).
III. GOVERNING LAW
Under the Child Custody Act (CCA), MCL 722.21 et seq, absent court approval, when a
child’s custody is governed by a court order, a parent may not change the legal residence of that
child to a location more than 100 miles away. MCL 722.31(1). This Court has previously
explained the framework governing a motion to change domicile as follows:
A motion for a change of domicile essentially requires a four-step approach.
First, a trial court must determine whether the moving party has established by a
preponderance of the evidence that the factors enumerated in MCL 722.31(4), the
so-called D’Onofrio factors, support a motion for a change of domicile. Second,
if the factors support a change in domicile, then the trial court must then
determine whether an established custodial environment exists. Third, if an
established custodial environment exists, the trial court must then determine
whether the change of domicile would modify or alter that established custodial
environment. Finally, if, and only if, the trial court finds that a change of
domicile would modify or alter the child’s established custodial environment must
the trial court determine whether the change in domicile would be in the child’s
best interests by considering whether the best-interest factors in MCL 722.23 have
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been established by clear and convincing evidence. [Rains, 301 Mich. App. at 325
(footnote omitted).]
The first step in the above-cited framework involves applying the factors set forth in
MCL 722.31(4), which provides as follows:
(4) 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. [MCL 722.31(4).]
“[T]he moving party [must] establish[] by a preponderance of the evidence that the factors . . .
support a motion for a change of domicile.” Rains, 301 Mich. App. at 325.
IV. APPLICATION OF MCL 722.31(4)
Factor (a) directs a court to consider “[w]hether the legal residence change has the
capacity to improve the quality of life for both the child and the relocating parent.” In this case,
with respect to factor (a), the trial court found that plaintiff failed to prove by a preponderance of
the evidence that the residence change had the capacity to improve the life of plaintiff or the
child. With respect to the child, the court found that IGT had spent her entire life in Northern
Michigan with both parents and extended family. While plaintiff offered general testimony that
Jenison was a better school district, nothing in the record substantiated that claim. The court
noted that plaintiff did not offer any testimony on what the plans were for before or after school
care for IGT and there was no testimony regarding what activities she would be enrolled in.
There was nothing to substantiate that crime rates were lower in Jenison as opposed to Harbor
Springs. The court also noted that plaintiff failed to offer testimony regarding the impact the
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move would have on IGT’s family relationships. While IGT would benefit by being closer to
plaintiff’s extended family, the benefit did not outweigh the negative impact the move would
have on IGT’s relationship with defendant, her father.
With respect to plaintiff, the trial court noted that plaintiff was furthering her education
that would provide her with gainful employment and that Matthew obtained full-time
employment in the Grand Rapids area. The court acknowledged that plaintiff would be closer to
family in Grand Rapids, but reasoned that “other than moving closer to family the Plaintiff has
not shown that relocating for education or employment warrants a change in the child’s legal
residence.” The court noted that Matthew “decided to change careers and they wanted to move
somewhere with more opportunity.” Matthew “briefly” looked for jobs in Northern Michigan,
and “despite finding full time, year round employment, he states his income in the new position
is the same.” The court acknowledged that while Matthew did have benefits at his new job,
Matthew stated that the job was a “stepping stone” job. The court considered Matthew’s
testimony regarding his job “speculative,” and plaintiff’s testimony about her “job history and
search” as “equally speculative.” The court reasoned:
Plaintiff has had 3 jobs in as many years. Her last job before the move to Jenison
provided health insurance but paid 50 cents less per hour than her current
secretarial position. She did not testify she applied for or secured a position as a
medical assistant in Grand Rapids.
Plaintiff presented no testimony that she attempted to find comparable work in
northern Michigan before moving. She did not present evidence that she inquired
into a Medical Assistant program in the Petoskey area or that she applied for any
positions of any kind in Petoskey. Plaintiff acknowledged there are comparable
jobs available at any number of hospitals or offices closer to Harbor Springs, but
she thought there were more in Grand Rapids.
While Plaintiff claims she would have more opportunity in Grand Rapids, there is
nothing in the record, aside from her own hope and her statements that such
opportunities may be available, to support this claim. The Plaintiff’s desire to be
employed in an area that may provide an opportunity for advancement appears to
have been the driving force behind the move.
In conclusion, Plaintiff has not met her burden of providing beyond a
preponderance that the quality of hers or [IGT’s] lives will be improved by the
move to the Grand Rapids area such that a relocation of the child’s domicile is
warranted.
Here, the trial court’s findings were not against the great weight of the evidence. Plaintiff
argues that the trial court held her to an improper burden. She asserts that the trial court required
her to prove that a specific degree of improvement would occur to her life and IGT’s life, instead
of requiring her to prove by a preponderance of the evidence that their lives had the capacity to
improve. However, the trial court cited the correct preponderance of the evidence standard and it
never articulated a specific degree to which plaintiff needed to show that her family’s financial
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situation would improve in order to permit the legal residence change. The court applied the
correct burden of proof.
The trial court found that both plaintiff and her husband could make comparable salaries
in each area. Plaintiff testified that she would make $.50 per hour more at the job she was
offered in Grand Rapids than she made at her most recent job in northern Michigan. Her
husband described his pay as “about the same.” It appears that the family could secure benefits
in either area; plaintiff testified that she had health insurance at her most recent job in Northern
Michigan and her husband testified that he had health insurance at his Grand Rapids area job.
Plaintiff spoke about seeking a medical assistant job in the Grand Rapids area after she
completed her training/educational program. She testified that the salary and demand for jobs
was higher in the Grand Rapids area. However, she also acknowledged that there were medical
assistant jobs in Northern Michigan. The trial court also found that IGT had access to extended
family in Northern Michigan as well and that IGT had formed friendships in Northern Michigan,
and there was no evidence that IGT would lack access to extracurricular activities in Northern
Michigan now that she is over the age of five. In short, the record does not clearly preponderate
in the opposite direction of these findings. Rains, 301 Mich. App. at 324-325.
Factor (b) directs the trial court to consider the degree to which each parent has utilized
his or her parenting time. MCL 722.31(4)(b). Here, the trial court considered plaintiff’s
testimony that both plaintiff and defendant were involved in IGT’s life and concluded that both
parents utilized their parenting time. While Carole provided care as a grandmother while
defendant was working, contrary to plaintiff’s argument, this did not support that defendant did
not utilize his parenting time. In short, the trial court considered the relevant evidence in making
these findings with respect to factor (b) and the findings were not against the great weight of the
evidence. Rains, 301 Mich. App. at 324-325.
Factor (c) focuses on “[t]he degree to which the court is satisfied that . . . it is possible to
order a modification of the parenting time schedule and other arrangements governing the child’s
schedule” to “preserv[e] and foster[] the parental relationship between the child and each parent”
“if the court permits the legal residence change”; and whether each parent is likely to comply
with the modification.” MCL 722.31(4)(c). The court made the following findings with respect
to this factor:
Plaintiff acknowledged the proposed plan put the child in a car for 21 to 28 hours
per month due to the 3 ½ hour one way commute from northern Michigan to
southern Michigan. She did not see this as a problem nor did she present any
understanding of the impact this would have on the child or her relationship with
her Father. There is no testimony regarding the financial impact on either party or
feasibility of these weekly trips.
The schedule proposed by Plaintiff provides Defendant with 3 weekends per
month reducing his overnights to 6 per month. The Plaintiff suggests Defendant
have extended time during holidays and summer break to make up for the loss of
time. However, Plaintiff acknowledged Defendant’s work as a FedEx driver
could make extended time during holidays difficult.
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Plaintiff stated Defendant Father shows interest in his daughter and attends her
school conference. The proposed parenting time plan eliminates the Father’s
opportunity to attend school activities on weekdays or be involved in her day-to-
day life during the school year.
In conclusion, the record submitted by Plaintiff fails to establish by a
preponderance of the evidence, how a parenting time schedule would be arranged
to adequately preserve and foster the parental relationship between [IGT] and her
father.
The court’s findings with respect to factor (c) were not against the great weight of the
evidence. Here, the evidence showed that defendant was involved in IGT’s daily life in Northern
Michigan. He participated in IGT’s schooling and participated in important decisions regarding
her livelihood. Defendant always took advantage of his parenting time and was clearly bonded
with IGT. Plaintiff proposed to move the child over three hours away and this would
significantly impact defendant’s ability to be involved in his daughter’s life. He would no longer
be able to participate on a daily basis in her schooling or after-school programs or any future
sporting events or extra-curricular activities that IGT may become involved in. While plaintiff
proposed that defendant could have IGT for three weekends per month, the trial court noted that
a significant portion of this time would be spent in the car driving to and from Grand Rapids,
which would limit the amount of time defendant had with IGT. In short, the trial court’s findings
with respect to factor (c) were not against the great weight of the evidence. Rains, 301 Mich
App at 324-325.
The trial court concluded that factors (d) (extent to which the change is motivated by a
desire to secure a financial advantage with regard to child support) and (e) (domestic violence),
were inapplicable in the present case. This finding was not erroneous.
In sum, the trial court’s factual findings with regard to the MCL 722.31(4) factors were
not against the great weight of the evidence. Therefore, the trial court did not abuse its discretion
in denying plaintiff’s motion to change IGT’s legal residence.
V. CUSTODIAL ENVIRONMENT/BEST INTERESTS
Plaintiff argues that even though the trial court denied her motion for a change in
domicile, the trial court should have analyzed the impact her relocation had on the custodial
environment and the best interests of the child. This issue involves application of the CCA,
which is a question of law we review de novo. Speicher v Columbia Twp Bd of Trustees, 497
Mich. 125, 133; 860 NW2d 51 (2014).
Plaintiff cites Yachcik v Yachcik, ___Mich App___; ___NW2d___(2017) (Docket No.
333834) in support of her argument that the trial court was required to consider the custodial
environment and best interest factors. In Yachcik, the parties lived in Alpena, Michigan, they
had a son, GY, together while they were married, and then they divorced. Slip op. at 1.
Following the divorce, the parties agreed to a parenting time arrangement on an alternating
weekly basis. Id. In August 2012, the plaintiff mother married a man, Benjamin Wallen, who
lived and worked in Pennsylvania. Id. at 1-2. The plaintiff moved to change GY’s domicile to
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Pennsylvania and indicated during the hearing that she intended to move to Pennsylvania
regardless of the court’s decision on the motion. Id. at 2. The defendant father opposed the
motion, and verbally requested that the court award him primary custody of GY in the event that
the plaintiff moved to Pennsylvania. Id. The trial court denied the plaintiff’s motion to change
domicile, concluding that the plaintiff failed to meet her burden under MCL 722.31(4). Id. at 2-
3. In addition, “[f]ollowing the hearing on plaintiff’s motion to change the child’s domicile, the
trial court held that the inverse of plaintiff’s proposed parenting time schedule would be in effect
in the event that plaintiff moved to Pennsylvania.” Id. at 12. Specifically, the trial court stated:
In the event that the Plaintiff moves from the area to the state of Pennsylvania she
is to enjoy the same parenting time schedule for herself that she proposed for Mr.
Yachcik at the hearing in this cause. If she does not leave this area, the Order of
week on week off will control custody and parenting time. [Emphasis added in
Yachcik, slip op at 14.]
On appeal, this Court affirmed the trial court’s holding with respect to its decision on the
change of domicile; however, this Court agreed with the plaintiff that the trial court erred when it
modified the prior custody order without first determining whether there was a custodial
environment and whether the change was in GY’s best interests. Id. at 11-14.
In addressing the issue, this Court turned to Grew v Knox, 265 Mich. App. 333; 694 NW2d
772 (2005). In Grew, the plaintiff moved to change the legal residence of the parties’ child from
Monroe County to Traverse City. Id. at 334-335. The defendant objected and moved for
temporary custody of the child. Id. The trial court denied the motion to change domicile and, as
a result, “the trial court did not hold a hearing on defendant’s motion for a change of custody.
However, despite the lack of a custody hearing, the trial court granted temporary physical
custody to defendant for as long as plaintiff continued to live in [Traverse City].” Id. at 336.
The Grew Court held that the trial court “erred in awarding temporary physical custody of the
child to defendant without conducting an evidentiary hearing or making findings of fact pursuant
to MCL 722.23 and 722.27.” The Grew Court reasoned as follows:
the trial court altered the parties’ custody arrangements after conducting an
evidentiary hearing on plaintiff’s motion for a change of legal residence.
Although a hearing under MCL 722.31 does take into consideration the child’s
interests, see MCL 722.31(4), the child’s best interests as delineated by MCL
722.23 are not the primary focus of the hearing. Likewise, had the court held a
hearing regarding defendant’s motion for a change of custody, the burden would
have been on defendant to prove by clear and convincing evidence that the change
was in the child’s best interests, MCL 722.27(1)(c), rather than on plaintiff, as
was the case in the hearing under plaintiff’s motion for a change of legal
residence. Yet once the trial court determined that plaintiff had not met her
burden under MCL 722.31, the trial court ended the hearing and awarded
temporary custody to defendant without hearing testimony regarding whether a
change in custody was in the child’s best interests or making findings regarding
the child’s best interests. A trial court should not temporarily change custody by
a post-judgment interim order when it could not do so by a final order changing
custody. [] Whether a court is establishing custody in an original matter, or
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altering a prior custody order, the requirement is the same: specific findings of
fact regarding each of twelve factors that are to be taken into account in
determining the best interests of the child must be made. [Grew, 265 Mich. App. at
337 (quotation marks and citations omitted).]
The Grew Court concluded:
The court’s determination that a change of the child’s legal residence was not
warranted, coupled with plaintiff’s intention to remain in Traverse City,
necessitated a review of the current custody situation, and the trial court should
have analyzed the best interest factors under MCL 722.23 and 722.27 before
making any changes to custody. [] Consequently, the trial court abused its
discretion when it awarded temporary custody to defendant after a hearing on
change of legal residence without finding that it was in the child’s best interests.
[Grew, 265 Mich. App. at 337-338.]
In Yachcik, this Court relied on Grew and held that the trial court erred when, after
denying the plaintiff mother’s motion to change domicile, it modified the custody order awarding
physical custody to the defendant father. The Yachcik Court held as follows:
Although Grew is distinguishable to a certain extent because defendant did not
bring a separate motion for temporary custody in this case, we believe that the
analysis in Grew can be understood as generally holding that a trial court is
required to analyze the best interest factors before entering a custody order that
alters an established custodial environment, even in cases when that change in
custody is prompted by a situation where a parent, whose motion for a change in
domicile was denied, still decides to move, or remain, a significant distance away.
Further, even if we assume, arguendo, that Grew is not generally applicable in
these situations, defendant’s actions in this case were similar to the defendant’s
actions in Grew. Defendant did not file a separate motion requesting a change in
custody in this case, but he asked for such a change in his response to plaintiff’s
motion by requesting modification of the parenting time schedule and the current
custody arrangement so that he would be awarded “primary physical custody” if
plaintiff moved to Pennsylvania. Correspondingly, the trial court implicitly
recognized that its alteration of the parenting time arrangement, upon plaintiff’s
move to Pennsylvania, constituted a change in custody. . . . [Yachcik, slip op at
13-14.]
In this case, unlike in Grew and Yachcik, the trial court did not modify an existing
custody order after it denied plaintiff’s motion to change domicile. The previous order providing
week-on-week-off parenting time remained in effect. Perhaps this is because plaintiff and her
husband Matthew equivocated on what they planned to do in the event the trial court denied the
motion to change domicile. Matthew testified that he and plaintiff did not have a “plan B” and
they would need to discuss the issue. Plaintiff did not clearly testify as to whether she was living
in Grand Rapids on a permanent basis or whether she planned to move there irrespective of the
trial court’s ruling. Thus, this case is different from Grew and Yachcik. Here, the trial court did
not award physical custody to defendant; rather, the former order remained in effect. To the
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extent that plaintiff intends to relocate to Grand Rapids on a permanent basis irrespective of the
court’s order, then plaintiff should file a motion to modify the present custody order to award
parenting time that is in IGT’s best interests. If plaintiff were to make this request, then the trial
court would be required to first determine whether there is a custodial environment with both
parents and then fashion a custody arrangement that is in IGT’s best interests. See MCL
722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich. App. 499, 512; 675 NW2d 847 (2003).
Affirmed.
/s/ Jane M. Beckering
/s/ Peter D. O'Connell
/s/ Stephen L. Borrello
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