Emily Kathleen Trapp v. Gerald Allen Setter Jr ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
EMILY KATHLEEN TRAPP, formerly known as UNPUBLISHED
EMILY KATHLEEN SETTER, November 3, 2022
Plaintiff-Appellee,
v No. 361376
Oakland Circuit Court
Family Division
GERALD ALLEN SETTER, JR., LC No. 2016-842870-DM
Defendant-Appellant.
Before: RICK, P.J., and O’BRIEN and PATEL, JJ.
PER CURIAM.
Defendant appeals as of right an April 22, 2022 amended opinion and order granting
plaintiff’s motion to change the domicile of the parties’ minor children, ZRS and GJS (sometimes
referred to collectively as the children), from Clarkston, Michigan, to Traverse City, Michigan.
We affirm.
The parties were married in 2011. On December 16, 2016, a consent judgment of divorce
was entered. The parties were granted joint legal and physical custody of the children. The parties
were afforded equal parenting time beginning in January 2017.
In 2021, plaintiff filed a motion to change the domicile of the children from Clarkston to
Traverse City. She was engaged to Michael Ring, who lived and worked in Traverse City.
Defendant opposed the motion. A three-day evidentiary hearing was held. By the time of the
evidentiary hearing, plaintiff and Ring were married and had purchased a home in Traverse City,
although plaintiff was continuing to live in a rented home in Clarkston. Plaintiff had a job offer in
Traverse City making more money than she was making at her job in Clarkston. Defendant
admitted at the evidentiary hearing that he had discussed the court proceedings and the proposed
move with the children. The trial court cautioned the parties not to discuss these matters with the
children. The trial court interviewed the children in chambers.
On January 9, 2022, the trial court issued an opinion and order granting plaintiff’s motion
to change domicile. The court evaluated the change-of-domicile factors set forth in
-1-
MCL 722.31(4) and concluded that those factors supported the request for a change of domicile
by a preponderance of the evidence. Next, the court found that the children had an established
custodial environment with both parties. The court further found that the modified parenting-time
order that the court was adopting as a result of the change of domicile would not alter the
established custodial environment and that it was thus unnecessary to examine the best-interest
factors of MCL 722.23. The court granted defendant extensive in-person parenting time, including
on weekends, summer breaks, spring breaks, and school holidays. Defendant was to have regular
telephonic and electronic contact with the children, including through Skype, Facetime, text
messages, and Google Duo.
On January 28, 2022, defendant filed a motion for reconsideration. He argued that the
change of domicile would alter the children’s established custodial environment with defendant
and that the trial court had thus erred in failing to examine the best-interest factors of MCL 722.23.
At a March 2, 2022 hearing on the motion for reconsideration, defendant’s counsel admitted that
the court’s modified or new parenting-time schedule reduced defendant’s parenting time by only
about 20 to 30 days a year. Also, defendant admitted that he had discussed the January 9, 2022
opinion and order with the children. Defendant apologized to the court for having again discussed
the court proceedings with the children, despite the court’s previous instruction not to do so.
On March 4, 2022, the trial court entered an order granting defendant’s motion for
reconsideration. On April 22, 2022, the trial court issued an amended opinion and order granting
plaintiff’s motion for change of domicile. The trial court found that the change of domicile would
alter the established custodial environment, and the court thus evaluated the best-interest factors
of MCL 722.23. The court found that the parties were equal on most of the factors. The court
found that plaintiff was favored on factor (j) because defendant had inappropriately discussed the
proposed move and the court proceedings with the children. The court considered the reasonable
preferences of the children under factor (i). The court determined that plaintiff had established by
clear and convincing evidence that the change of domicile was in the best interests of the children.
The court adopted the same parenting-time schedule set forth in the January 9, 2022 opinion and
order. This appeal ensued.
Defendant’s first argument on appeal is that the trial court erred in its findings on some of
the best-interest factors of MCL 722.23 and in its determination that plaintiff had established by
clear and convincing evidence that the proposed move to Traverse City was in the children’s best
interests. We disagree.
“In a child custody dispute, ‘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.’ ” Pennington v
Pennington, 329 Mich App 562, 569-570; 944 NW2d 131 (2019), quoting MCL 722.28. “A trial
court’s ultimate decision on a motion for change of domicile is reviewed for an abuse of
discretion.” Safdar v Aziz, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 358877),
quoting Rains v Rains, 301 Mich App 313, 324; 836 NW2d 709 (2013); slip op at 5, lv pending
(Docket No. 164665). “In this context, ‘[a]n abuse of discretion is found only in extreme cases in
which the result is so palpably and grossly violative of fact and logic that it evidences a perversity
of will or the exercise of passion or bias.’ ” Id. (quotation marks, and citation omitted).
-2-
“The trial court’s findings regarding the best-interest factors of MCL 722.23 are . . .
reviewed under the great-weight-of-the-evidence standard.” Id. at 6. The trial court’s findings are
thus “affirmed unless the evidence clearly preponderates in the opposite direction.” Id. (quotation
marks and citation omitted). This Court defers to the trial court’s credibility determinations. Id.
This Court has explained the process that a trial court must follow when deciding a motion
for change of domicile:
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) . . .
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 been established by clear and convincing
evidence. [Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709 (2013).]
In its April 22, 2022 amended opinion and order, the trial court followed the process set
forth in Rains. The trial court determined that plaintiff had established by a preponderance of the
evidence that the factors of MCL 722.31(4) supported the motion for a change of domicile. The
trial court then found that the children had an established custodial environment with both parties.
Next, the trial court determined that the change of domicile would modify or alter the established
custodial environment. Finally, the trial court evaluated the best-interest factors of MCL 722.23
and determined that plaintiff had established by clear and convincing evidence that the change of
domicile was in the children’s best interests. The court thus granted the motion for a change of
domicile and adopted a new parenting-time schedule.
Defendant’s first argument on appeal concerns the fourth Rains step. Defendant challenges
the trial court’s findings on factors (d), (e), and (j) of MCL 722.23 and argues that the trial court
erred in determining that plaintiff had established by clear and convincing evidence that the change
of domicile was in the children’s best interests. Defendant’s argument is unavailing.
This Court has explained:
Under the fourth Rains step, ‘[i]f the trial court concludes that a change in
an established custodial environment would occur, then the party requesting the
change of domicile must prove by clear and convincing evidence that the change is
in the child’s best interests.’ In determining the child’s best interests, the trial court
is required to consider the factors set forth in MCL 722.23. The trial court’s
‘findings and conclusions need not include consideration of every piece of evidence
entered and argument raised by the parties. However, the record must be sufficient
for this Court to determine whether the evidence clearly preponderates against the
-3-
trial court’s findings.’ Again, ‘[t]his Court will defer to the trial court’s credibility
determinations, and the trial court has discretion to accord differing weight to the
best-interest factors.’ [Safdar, ___ Mich App at ___; slip op at 10-11 (quotation
marks, and citations omitted).]
Defendant’s appellate argument regarding factors (d) and (e) is cursory and made only in
passing. He fails to provide a distinct argument regarding each of those factors. His entire
argument regarding those two factors consists of two sentences asserting that most of the children’s
family and friends live in Clarkston and that the trial court thus erred in failing to find in favor of
defendant on factors (d) and (e). “A party may not simply announce a position and leave it to this
Court to make the party’s arguments and search for authority to support the party’s position.
Failure to adequately brief an issue constitutes abandonment.” Seifeddine v Jaber, 327 Mich App
514, 519-520; 934 NW2d 64 (2019) (citations omitted). Given the cursory nature of defendant’s
argument regarding factors (d) and (e) as well as his failure to provide a distinct argument
regarding each of those factors, his appellate argument regarding factors (d) and (e) has been
abandoned on appeal. Defendant also fails to provide a record citation to support his factual
assertion that most of the children’s family and friends live in Clarkston. Defendant has thereby
failed to comply with MCR 7.212(C)(7), which states, in relevant part, “Facts stated must be
supported by specific page references to the transcript, the pleadings, or other document or paper
filed with the trial court.” “This Court will not search the record for factual support for a party’s
claim.” McIntosh v McIntosh, 282 Mich App 471, 485; 768 NW2d 325 (2009) (citation omitted).
In any event, the trial court’s findings on factors (d) and (e) were not against the great
weight of the evidence. Factor (d) is “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity.” MCL 722.23(d). The trial court
determined that this factor favored both parties, i.e., that the parties were equal on this factor. The
court found that “the children live in a stable and satisfactory environment with both parents” and
that, although defendant “works many hours, . . . he has a support system that allows him to
continue to meet the children’s needs in his care.” Defendant argues that this factor should favor
only him, but he has provided no basis to question the trial court’s finding that the children have
lived in a stable, satisfactory environment with both parties. Even accepting as true defendant’s
assertion that most of the children’s family and friends live in Clarkston,1 this by itself does not
require a finding that factor (d) favors only defendant. Under the trial court’s new parenting-time
schedule, the children will continue to spend a considerable amount of time with defendant in
Clarkston. The evidence does not clearly preponderate against the trial court’s finding that factor
(d) favors both parties.
Factor (e) concerns “[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes.” MCL 722.23(e). Factor (e) “exclusively concerns whether the family
unit will remain intact, not an evaluation about whether one custodial home would be more
acceptable than the other.” Ireland v Smith, 451 Mich 457, 462; 547 NW2d 686 (1996) (quotation
marks and citation omitted). The trial court determined that this factor favored both parties, i.e.,
1
It is notable that plaintiff testified that the children are very close to plaintiff’s parents, who
planned to move to Traverse City if the motion to change domicile was granted.
-4-
that the parties were equal on this factor. The court found that “the children have a family unit
with” defendant. The court further found that plaintiff “has remarried and purchased a home in
Traverse City with her now husband. The [c]ourt finds that the children and [plaintiff] reside in a
rented home. The [c]ourt finds that the children are bonded to [plaintiff] in both their current home
in Clarkston . . . and in their home in Traverse City.” Defendant argues that this factor should
favor him alone, but he has provided no basis to conclude that the children will lack an intact
family unit with plaintiff. Indeed, the purpose of the move to Traverse City was so that plaintiff,
her husband, and the children could live together in one home as an intact family unit. The
evidence does not clearly preponderate against the trial court’s finding that both parties are favored
on this factor.
Factor (j) is “[t]he willingness and ability of each of the parties to facilitate and encourage
a close and continuing parent-child relationship between the child and the other parent or the child
and the parents.” MCL 722.23(j). The trial court found that this factor favored plaintiff. The
court explained:
This [c]ourt finds that the pendency of this action has deteriorated the
continuity of the parties as it relates to the minor children. The testimony indicates
that [defendant] inappropriately spoke to the children about this case prior to the
evidentiary hearing and inappropriately spoke to the children about this case when
the [c]ourt issued its opinion and order on January 9, 2022.
Prior to this action, the testimony is that the parties [sic] have shared equal
time with [plaintiff] and [defendant].
With respect to the court’s findings on factor (j), defendant argues that the trial court
inappropriately utilized its order changing domicile to punish defendant for communicating with
the children about the case. Defendant cites Bylinski v Bylinski, 25 Mich App 227, 229; 181 NW2d
283 (1970), in which this Court stated that the trial court “could not order a change of custody as
a punishment for contempt.” Defendant also cites Kaiser v Kaiser, 352 Mich 601, 604; 90 NW2d
861 (1958), which likewise held that a change of custody was not a proper means of punishing a
parent for contempt.
Bylinski and Kaiser are inapplicable here. The trial court did not order a change of domicile
as a means of punishing defendant for contempt or for his actions in speaking with the children
about the case. Rather, the court properly considered defendant’s inappropriate communications
with the children in the context of determining what was in the best interests of the children.
Specifically, as will be explained, the trial court reasonably considered defendant’s inappropriate
communications with the children in the context of factor (j) of MCL 722.23.
Defendant admitted that he discussed the case with the children multiple times. Defendant
testified that ZRS initially said that she wanted to move to Traverse City, but her opinion had
-5-
changed.2 When asked if the reason for ZRS’s change of opinion was because defendant said that
he did not want them to move, defendant responded: “I don’t know if that had an influence. I have
specifically, or not—I, I have just mentioned, you know, what each side would entail, uh, but not
to tell them you must stay with me or anything of that nature.” Defendant elaborated:
I, I explained that if they were to move to Traverse City they would go to school
up there and most likely see me on holidays and the summertime. And if they
stayed here and [plaintiff] still chose to move that they would see her on holidays
and summertime most likely and be in Clarkston for schooling. Just to explain that
it’s, the dynamic differences.
Defendant testified further that ZRS initially said it was fun and like a vacation when she
goes to Traverse City. But she later said that she did not want to leave her friends in Clarkston
and that she understood the difficulty of maintaining a relationship with either defendant or
plaintiff if ZRS did not see either of them for a long period of time. Defendant testified that he
has never told the children what to say with respect to this proposed move. However, he admitted
that he has “told them that I believe it would be best for them to, to stay how it is right now, that
that would be the, the ideal situation.”
Even after the trial court cautioned the parties not to discuss the case with the children,
defendant discussed the trial court’s January 9, 2022 opinion with the children. At the March 2,
2022 hearing on defendant’s motion for reconsideration, the trial court placed defendant under
oath and asked if he had read the trial court’s January 9, 2022 opinion and order to the children or
spoken to them about what was contained in the opinion and order. Defendant denied reading the
entire opinion and order to the children but admitted that he told the children “small pieces” and
“a quick two second synopsis” of the opinion and order. The trial court told defendant that it was
“very inappropriate” for him to have communicated with the children about the court’s opinion
and order. Defendant apologized to the court. The court stated that such inappropriate
communication placed additional stress on the children and that the court had previously instructed
the parties not to do that after prior instances of such improper communications. The court
continued:
So that was the wrong thing to do and it’s something that you can apologize
for now but even at the time that you did it you knew that it was putting the kids in
an awkward position and you were thinking about yourself, not your kids. So the
court is disappointed, all right?
Defendant’s communications with the children supported the trial court’s determination
that plaintiff was favored on factor (j). Defendant’s statements to the children could reasonably
be viewed as attempts to influence the children’s views regarding the proposed move to Traverse
City and as undermining the children’s relationship with plaintiff. The evidence did not clearly
2
Plaintiff testified that she believes that the children want to move to Traverse City. Plaintiff
stated that she did not discuss the proposed move with the children until after defendant did so
first. According to plaintiff, ZRS brought the subject up with plaintiff and said that she wanted to
move to Traverse City, and ZRS had not changed her mind about it.
-6-
preponderate against the trial court’s finding on factor (j). Again, there is no basis to conclude that
the trial court ordered the change of domicile as a means to punish defendant. Rather, the court
considered defendant’s improper communications with the children in the context of evaluating
what was in the best interests of the children.
Defendant argues that plaintiff also spoke with the children about the court proceedings.
However, plaintiff testified that she did not discuss the proposed move with the children until after
defendant did so first. According to plaintiff, ZRS brought the subject up with plaintiff. When
asked if she had told the children what is going on with the court case, plaintiff testified that
defendant “chose to tell them.” Moreover, defendant testified that he did not know which party
first discussed the proposed move with the children. Again, this Court defers to the trial court’s
credibility determinations. Safdar, ___ Mich App at ___; slip op at 11. Moreover, there is no
evidence that plaintiff discussed the January 9, 2022 opinion and order with the children, like
defendant did after the trial court cautioned the parties against discussing the case with the children.
Defendant also suggests that factor (j) should not favor plaintiff because she scheduled
doctor appointments to occur during the day while defendant was working. But given that
defendant works for most of the day, it was not unreasonable for plaintiff to schedule appointments
to occur while defendant was working. Defendant admitted that plaintiff generally informs him
of the children’s doctor appointments and what happens at those appointments. Defendant also
admitted that plaintiff facilitates a relationship between defendant and the children. Overall, the
trial court’s finding that factor (j) favored plaintiff was not against the great weight of the evidence.
Defendant has thus failed to establish that any of the trial court’s findings on the best-
interest factors of MCL 722.23 were against the great weight of the evidence. Defendant’s
argument focuses almost exclusively on factor (j), and he has failed to present a successful
challenge to the trial court’s determination that plaintiff was favored on that factor. Although the
trial court indicated that the best-interest factors other than factor (j) (setting aside factor (i) for the
moment) were equal, the trial court has discretion to determine how much weight to accord to the
best-interest factors, Safdar, ___ Mich App at ___; slip op at 11. The trial court reasonably found
factor (j) to merit considerable weight in these circumstances. Also, defendant’s argument
regarding the trial court’s best-interests determination ignores the fact that the trial court
considered the reasonable preferences of the children under factor (i), which could also have
played a role in the trial court’s overall best-interests determination. Defendant has not shown any
error in the trial court’s determination that plaintiff established by clear and convincing evidence
that the change of domicile was in the best interests of the children.
Defendant next presents arguments concerning the first Rains step. He challenges the trial
court’s findings regarding some of the change-of-domicile factors of MCL 722.31(4) and the
court’s determination that plaintiff had established by a preponderance of the evidence that the
factors of MCL 722.31(4) supported the motion for a change of domicile. Defendant’s arguments
are unconvincing.
A trial court’s findings regarding the change-of-domicile factors of MCL 722.31(4) are
reviewed under the ‘great-weight-of-the-evidence’ standard. Rains, 301 Mich App
at 324(citations omitted). Therefore, the trial court’s findings are affirmed unless the evidence
clearly preponderates in the opposite direction. Id.
-7-
Factor (a) is “[w]hether the legal residence change has the capacity to improve the quality
of life for both the child and the relocating parent.” MCL 722.31(4)(a). The trial court found that
the larger home owned by plaintiff and Ring in Traverse City and plaintiff’s increased salary in
the job that she has been offered in Traverse City would create a better life for her and the children.
The evidence does not clearly preponderate against the trial court’s findings.
Plaintiff testified that she and Ring own a house in Traverse City that is larger than the
home that plaintiff rents in Clarkston. The house in Traverse City is 3,000 square feet, with four
bedrooms and three full bathrooms. The property consists of 16 acres of rolling hills. The children
like to engage in outdoor sports and activities, and they would have more space to do that in
Traverse City.
Plaintiff testified that she has a job offer in Traverse City that would pay her substantially
more income than she makes at her job in Clarkston. She earns about $23,000 a year in her
cosmetology job in Clarkston, although she made only $16,000 in 2020. She has been offered a
sales job in Traverse City at which she would be able to work partially remotely with flexible
hours. She would have an annual salary of $35,000 as well as commission and the use of a
company vehicle. She would thus make significantly more money with that company than she
currently makes. The job would allow her flexibility to take care of the children.
Plaintiff further testified that the children are very close to plaintiff’s parents, who planned
to move to Traverse City if the motion to change domicile was granted. The children would attend
a school that was part of the Grand Traverse School District. The ratings for that school are similar
to the ratings for the children’s school in Clarkston. Also, the children would be able to continue
their extracurricular activities in Traverse City.
Plaintiff explained that she and Ring were maintaining two households, i.e., one each in
Traverse City and Clarkston, which was financially difficult because they were making mortgage
payments for the home in Traverse City and rental payments for the home in Clarkston. She
testified that the children have a wonderful relationship with Ring. The proposed move would
allow plaintiff, Ring, and the children to bond as a family unit. Notably, Ring, who earns $84,000
a year plus bonuses, was required to live in Traverse City as part of his job. It would have been
difficult for him to find another position in which he could make that amount of money.
Overall, the evidence supports the trial court’s finding that the proposed move had the
capacity to improve the overall quality of life for the children and plaintiff. Increased financial
resources is a relevant consideration under factor (a) of MCL 722.31(4). Yachcik v Yachcik, 319
Mich App 24, 43-44; 900 NW2d 113 (2017). Defendant argues that earning more income is not
enough by itself to establish a capacity to improve a child’s overall quality of life. Defendant
emphasizes that the children have always attended school in Clarkston and that they have extended
family and friends in Clarkston. It is true that “living in close proximity to immediate and extended
family members and remaining in a stable environment are relevant considerations with regard to
MCL 722.31(4)(a).” Id. at 44. But as noted, there were facts other than plaintiff’s increased
income at the job in Traverse City indicating that the proposed move had the capacity to improve
the children’s overall quality of life. Plaintiff’s job in Traverse City would afford her a flexible
schedule so that she could care for the children. The children would have a larger home with more
space outdoors to engage in sports and activities that they enjoy. The school in Traverse City was
-8-
rated similar to the school attended in Clarkston, and the children could continue their
extracurricular activities in Traverse City.
As for defendant’s concerns about the children being away from extended relatives, it is
notable that plaintiff’s parents, to whom the children were very close, planned to move to Traverse
City if the motion for change of domicile was granted. In addition, defendant would continue to
exercise significant parenting time under the trial court’s new parenting-time schedule, and there
is no reason to believe that the children would be unable to continue their relationships with
extended family members in Clarkston. And the move would allow the children to live with
plaintiff and Ring as an intact family unit. In sum, the trial court’s findings regarding factor (a) of
MCL 722.31(4) were not against the great weight of the evidence.3
Factor (b) is “[t]he 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.” MCL 722.31(4)(b). The trial court found that both parties had
substantially complied with the parenting-time order and that plaintiff was not attempting to
frustrate defendant’s parenting time. Defendant does not challenge those findings.
Factor (c) is:
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. [MCL 722.31(4)(c).]
The trial court stated that it could modify the parenting-time schedule in a manner that preserved
and fostered each party’s parental relationship with the children. Further, the court was satisfied
that both parties would comply with the modified parenting-time schedule.
Defendant notes that, under the existing parenting-time order, the parties shared equal
parenting time. He argues that the move to Traverse City will necessitate a vast change in
parenting time and in his parental relationship with the children.
When a child’s domicile is changed, the new parenting-time plan is not required to be equal
with the old parenting-time plan because “such equality is not possible.” McKimmy v Melling,
291 Mich App 577, 583; 805 NW2d 615 (2011)(citation omitted). “The new [parenting-time] plan
‘only need provide a realistic opportunity to preserve and foster the parental relationship
3
Defendant asserts that plaintiff failed to look for higher-paying jobs in the Clarkston area.
Defendant fails to cite authority establishing that such a job search is a prerequisite to a court’s
consideration of increased financial resources as part of the analysis under factor (a), and in any
event, as noted, there were multiple grounds supporting the conclusion that the proposed move
had the capacity to improve the overall quality of life for the children and plaintiff.
-9-
previously enjoyed’ by the nonrelocating parent.” Id. (citation omitted). Also, in applying factor
(c), a court should consider “the use of modern technology. The separation between a parent and
a child ‘can be diminished by the use of modern communication technology.’ ” Id. (citations
omitted).
In its new parenting-time plan, the trial court granted extensive in-person parenting time to
defendant, including during weekends, summer breaks, spring breaks, and school holidays. At the
March 2, 2022 hearing on defendant’s motion for reconsideration, defendant’s counsel agreed that
there was a difference of only about 20 to 30 days a year between defendant’s parenting time under
the existing schedule and his parenting time under the new schedule. The trial court ordered that
defendant was to have regular telephonic and electronic contact with the children, including
through Facetime, Skype, text messaging, and Google Duo. And given that the parties have a
history of complying with the existing parenting-time order, there was no reason to doubt that the
parties would comply with the new parenting-time plan. Overall, the trial court’s finding on factor
(c) was not against the great weight of the evidence.
Factor (d) is “[t]he 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.”
MCL 722.31(4)(d). The trial court noted that there was no indication that defendant was opposing
the proposed move out of a desire to secure a financial advantage. Factor (e) concerns domestic
violence. MCL 722.31(4)(e). The trial court stated that factor (e) was inapplicable because there
was no testimony indicating domestic violence. Defendant does not challenge the trial court’s
determinations regarding factors (d) and (e).
In sum, defendant’s arguments on this issue are unavailing. None of the trial court’s
findings regarding the change-of-domicile factors of MCL 722.31(4) were against the great weight
of the evidence. The evidence supported the trial court’s findings on the factors at issue on appeal.
In particular, the evidence supported the trial court’s finding on factor (a) that the change of
domicile had the capacity to improve the quality of life for the children and plaintiff, and the
evidence supported the trial court’s finding on factor (c) that it was possible to modify the
parenting-time schedule in a manner that preserved and fostered each party’s parental relationship
with the children. Defendant has failed to establish any error in the trial court’s determination that
plaintiff established by a preponderance of the evidence that the factors of MCL 722.31(4)
supported the motion for a change of domicile. The trial court did not abuse its discretion in
granting the motion for a change of domicile.
Defendant’s final argument on appeal is that the trial court erred in denying his motion for
a directed verdict or involuntary dismissal. We disagree.
Initially, we note that defendant below referred to his motion as being for a directed verdict,
but on appeal he relies on the involuntary-dismissal provision of MCR 2.504(B)(2). Nonetheless,
he makes the same basic argument on appeal that he asserted below, i.e., that plaintiff had failed
to present sufficient evidence as of the close of her proofs. The motion for directed verdict may
be treated as a motion for involuntary dismissal under MCR 2.504(B)(2). See Sands Appliance
Servs, Inc v Wilson, 463 Mich 231, 235 n 2; 615 NW2d 241 (2000) (noting that a purported motion
for a directed verdict at a bench trial would more accurately be described as a motion for
involuntary dismissal under MCR 2.504(B)(2)); See, also, Samuel D Begola Servs, Inc v Wild
-10-
Bros, 210 Mich App 636, 639; 534 NW2d 217 (1995) (treating a motion for a directed verdict as
a motion for involuntary dismissal under MCR 2.504(B)(2)). Therefore, we will refer to the
motion at issue as a motion for involuntary dismissal rather than a motion for a directed verdict.
In reviewing a decision on a motion for involuntary dismissal under MCR 2.504(B)(2), this
Court reviews issues of law de novo and reviews factual findings for clear error. Sands Appliance
Servs, 463 Mich at 238. A finding of fact is clearly erroneous if this Court is left with a definite
and firm conviction that the trial court made a mistake. Samuel D Begola Servs, 210 Mich App
at 639.
MCR 2.504(B)(2) provides:
In an action, claim, or hearing tried without a jury, after the presentation of the
plaintiff’s evidence, the court, on its own initiative, may dismiss, or the defendant,
without waiving the defendant’s right to offer evidence if the motion is not granted,
may move for dismissal on the ground that on the facts and the law, the plaintiff
has no right to relief. The court may then determine the facts and render judgment
against the plaintiff, or may decline to render judgment until the close of all the
evidence. If the court renders judgment on the merits against the plaintiff, the court
shall make findings as provided in MCR 2.517.
Unlike a motion for directed verdict in a jury trial, a motion for involuntary dismissal requires a
court to exercise its “ ‘function as trier of fact, weigh the evidence, pass upon the credibility of
witnesses and select between conflicting inferences.’ ” Williamstown Twp v Hudson, 311 Mich
App 276, 287; 874 NW2d 419 (2015) (citation omitted).
In arguing that the trial court should have granted his request for an involuntary dismissal,
defendant essentially repeats the arguments he asserted earlier in his brief on appeal, i.e., that
plaintiff did not present sufficient evidence in support of the change-of-domicile factors of
MCL 722.31(4) and did not show by clear and convincing evidence that it was in the best interests
of the children to change domicile. Defendant also notes that his testimony at the March 2, 2022
hearing on his motion for reconsideration occurred after the close of plaintiff’s proofs.
Defendant’s argument is unavailing. As explained earlier, the evidence supported the trial
court’s determinations regarding the change-of-domicile factors of MCL 722.31(4) and regarding
the best interests of the children. The vast majority of the testimony presented at the evidentiary
hearing, including the testimony of plaintiff and Ring as well as some of the testimony of
defendant, occurred before the close of plaintiff’s proofs, which was on the third day of the three-
day evidentiary hearing. The only testimony presented by defendant after the close of plaintiff’s
proofs was a small amount of additional testimony of defendant. Defendant fails to provide an
adequate argument focused on why the evidence presented before the close of plaintiff’s proofs
was insufficient without the additional testimony of defendant presented after the close of
plaintiff’s proofs. Defendant “cannot leave it to this Court to make his arguments for him. His
failure to adequately brief the issue constitutes abandonment.” Seifeddine, 327 Mich App at 521
(citation omitted).
-11-
Defendant refers to his testimony at the March 2, 2022 hearing regarding some of his
communications with the children about the case. That testimony was provided after the close of
plaintiff’s proofs and was thus not before the court when it ruled on defendant’s motion for
involuntary dismissal. But defendant fails to explain how plaintiff’s proofs were inadequate
without that testimony. Some testimony about certain of defendant’s improper communications
with the children had already been provided before the close of plaintiff’s proofs. Defendant has
failed to show that his testimony at the March 2, 2022 hearing was so critical that an involuntary
dismissal was required in the absence of that testimony.
Affirmed.
/s/ Michelle M. Rick
/s/ Colleen A. O’Brien
/s/ Sima G. Patel
-12-