Grange Insurance Co of Michigan v. Edward Lawrence ( 2013 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
GRANGE INSURANCE COMPANY OF MICHIGAN v LAWRENCE
AUTOMOBILE CLUB INSURANCE ASSOCIATION v STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY
Docket Nos. 145206, 143808. Argued April 11, 2013 (Calendar No. 1). Decided July 29, 2013.
Grange Insurance Company of Michigan brought an action in the Muskegon Circuit
Court, seeking a declaratory judgment regarding its responsibility under a no-fault insurance
policy issued to Edward Lawrence to reimburse Farm Bureau General Insurance Company of
Michigan for personal protection insurance (PIP) benefits it had paid following the death of
Josalyn Lawrence, a minor, as the result of an automobile accident. The accident occurred while
Josalyn’s mother, Laura Rosinski, was driving a vehicle insured by Farm Bureau. Josalyn’s
father, Edward Lawrence, and Rosinski were divorced at the time of the accident and shared
joint legal custody of the child, although Rosinski had primary physical custody. Edward
Lawrence was the named insured on an automobile insurance policy issued by Grange. Farm
Bureau sought partial reimbursement of the PIP benefits paid, arguing that Grange was in the
same order of priority under MCL 500.3115(2), because Josalyn was domiciled in both parents’
homes under MCL 500.3114(1). Farm Bureau filed a counterclaim and both insurers filed
motions for summary disposition. The circuit court, Timothy G. Hicks, J., granted Farm Bureau
summary disposition, finding that Josalyn had two domiciles at the time of her death. Grange
appealed. The Court of Appeals, BECKERING, P.J., and OWENS, and RONAYNE KRAUSE, JJ.,
affirmed the circuit court’s order, concluding that Josalyn resided and was domiciled with both
parents. The Court of Appeals also held that Grange’s policy was invalid because it required a
court adjudication of custody to be conclusive for determining a child’s “principal residence,”
which would improperly limit Grange’s obligation where the no-fault act does not. 296 Mich
App 319 (2012). The Supreme Court granted Grange’s application for leave to appeal in Docket
No. 145206 to determine whether the minor child of divorced parents can have two domiciles for
the purpose of determining coverage under MCL 500.3114(1) of Michigan’s no-fault act,
whether a custody order affects the determination of domicile and whether an insurance policy
provision giving preclusive effect to a court-ordered custody arrangement is enforceable. 493
Mich 851 (2012).
Automobile Club Insurance Association (ACIA) brought an action in the Ingham Circuit
Court, seeking a determination regarding its duty under a no-fault insurance policy for PIP
benefits paid by State Farm Mutual Automobile Insurance Company following the death of
Sarah Campanelli, a minor, as the result of an automobile accident. At the time of the accident,
Sarah’s parents, Francis Campanelli and Tina Taylor, were divorced and shared joint legal
custody of Sarah, but Campanelli had physical custody, with Taylor allowed reasonable
visitation. Soon after the divorce, the family court modified the original judgment of divorce,
permitting Campanelli to move and to change Sarah’s domicile to Tennessee. When the accident
occurred eleven years later, Sarah was staying in Michigan to attend school after a summer visit
with her mother. Sarah was fatally injured while a passenger in a car driven by a friend that was
insured by State Farm. ACIA, as the insurer of Terry Gravelle, Sarah’s uncle and in whose
household she resided while in Michigan, paid Sarah’s medical bills during the period before her
death. ACIA claimed that State Farm was the responsible insurer pursuant to MCL 500.3114(4),
arguing that Sarah was not domiciled in Michigan and that ACIA was therefore not responsible
for Sarah’s PIP benefits under MCL 500.3114(1). State Farm denied liability and both parties
filed cross-motions for summary disposition. The circuit court, Joyce Draganchuk, J., granted
State Farm summary disposition and ruled that ACIA was responsible for Sarah’s PIP benefits,
finding that the facts demonstrated that Sarah resided and was domiciled in Michigan in part
because there was a lack of evidence of a clear intent to return to Tennessee. ACIA appealed.
The Court of Appeals, MARKEY, P.J., and WILDER, and STEPHENS, JJ., reversed, concluding that
there was a question of fact as to Sarah’s domicile. The Court of Appeals also rejected ACIA’s
argument that the judgment of divorce and subsequent modification conclusively established
Sarah’s domicile for purposes of insurance coverage. Unpublished opinion per curiam of the
Court of Appeals, issued June 21, 2011 (Docket No. 294324). The Supreme Court heard oral
argument on ACIA’s application for leave to appeal in Docket No. 143808 to determine whether
the judgment of divorce, as amended, conclusively established Sarah’s legal residence and
domicile in Tennessee or whether she had the capacity to acquire a different legal residence or
domicile of choice. 491 Mich 875 (2012).
In an opinion by Justice KELLY, joined by Chief Justice YOUNG, and Justices CAVANAGH
and VIVIANO, the Supreme Court held:
Consistent with the common law, a child of divorced parents has only one domicile at
any given point in time. A family court custody order establishes a child’s domicile by operation
of law and determines the child’s domicile for all purposes, including the no-fault act.
1. Under MCL 500.3114(4)(1), PIP benefits are paid for accidental bodily injury arising
out of a motor vehicle accident to the person named in the policy, the person’s spouse, and a
relative of either domiciled in the same household. As used in the no-fault act, the term
“domiciled” is a technical word that is construed according to its peculiar and appropriate
meaning. MCL 500.3114(1) incorporates the common-law definition of domicile, which means
that place where a person has his fixed, permanent home, and principal establishment, and to
which, whenever he is absent, he has the intention of returning. While a person may have more
than one residence, he may have only one domicile at any point during his or her life. Generally,
a domicile is determined by reviewing the person’s intent as related to the residence, as well as
considering all the facts and circumstances taken together. When deciding to whom insurers
would be liable for the payment of PIP benefits, MCL 500.3114(1), there is no evidence that the
Legislature intended to deviate from the common-law definition of “domicile” and use of the
word evinces an intent to incorporate all common-law legal concepts related to the term.
Accordingly, a child, whose parents are divorced and who has more than one legal residence,
may have only a single domicile at any one point in time that continues until the child acquires a
different one. The holding is consistent with Workman v Detroit Auto Inter-Ins Exch, 404 Mich
477; 274 NW2d 373 (1979), which recognized that the Legislature has sometimes given the term
“residence” the equivalent meaning of “domicile”; however, for purposes of the no-fault act, the
term “domicile” is not the equivalent of “residence.” In Grange the Court of Appeals erred by
interpreting Workman to mean that domicile is the equivalent of residence and that a minor child
can be “domiciled” for purposes of MCL 500.3114(1) in multiple residences.
2. The common law recognizes three means of acquiring a domicile: (1) domicile of
origin or of nativity, which is established when a person is born; (2) domicile of choice, which
occurs when a person replaces his current domicile by choosing another; and (3) domicile by
operation of law, which occurs when a person with a legal disability lacks the capacity to acquire
a domicile of choice and one is established by operation of law. An unemancipated child, unlike
a competent adult, lacks the legal capacity to acquire a domicile of choice and, therefore, a
child’s domicile is determined by reference to the domicile of his or her parents. While intent is
critical for determining the domicile of an adult, a child’s intent is irrelevant and the Workman
factors that are considered to inform an adult’s intent to change his domicile are not applicable
when determining a child’s domicile. Rather, when a child is born, the child’s domicile of origin
is that of his or her father and remains the same until a new domicile is acquired through the
actions of the child’s parents or until that point in time when the minor can acquire a domicile of
choice through emancipation or by reaching the age of majority.
3. The common law recognizes that following the divorce of a child’s parents and entry
of a custody order, the child’s domicile is established by operation of law consistent with the
terms of the custody order and is determinative of the child’s domicile for all purposes, including
the no-fault act. This holding is also consistent with the Child Custody Act, MCL 722.21 et seq.,
itself, which entrusts courts with making custody determinations in a child’s best interests. In
these situations, the terms of the custody order are therefore determinative of a minor child’s
domicile. In accordance with the common law, which focuses primarily on location in a
determination of domicile, the relevant consideration is which parent has physical custody under
the terms of the order. For example, a child’s domicile is with the parent who is granted primary
or sole physical custody under the terms of the custody order, regardless of whether the parents
share joint legal custody.
4. The Child Custody Act is consistent with the common-law rule that a person may
have only one domicile at any given point in time and there is no express indication that the
Legislature intended a different result. That parents are legally bound by the terms of a custody
order and, therefore, lack the legal capacity to independently change the child’s domicile
mandates the conclusion that a child’s domicile is established by the court as a matter of law.
5. In Grange, the lower courts erred by denying Grange summary disposition. Josalyn
was domiciled with Rosinski at the time of her accident because the 2005 judgment of divorce
granted Rosinski primary physical custody and the order had never been modified pursuant to the
provisions of the Child Custody Act; in addition, Josalyn had not reached the age of majority or
become emancipated such that she could acquire a different domicile of her own choosing. The
lower courts erred by concluding that Josalyn was domiciled with both parents, erred by failing
to recognize the legal effect of the family court order, and erred by applying the Workman
factors that are inapplicable to a minor child whose domicile is set by operation of law. Because
Josalyn was not domiciled with Lawrence, his insurer, Grange, was not required to reimburse
Farm Bureau under MCL 500.3115(2) for the PIP benefits it paid.
6. In ACIA, the lower courts erred by denying ACIA summary disposition. The 1995
judgment of divorce granted Taylor and Campanelli joint legal custody. It granted Campanelli
primary physical custody and expressly established Sarah’s domicile in Michigan. The judgment
was later modified in 1996 by court order changing Sarah’s domicile to Tennessee where
Campanelli retained primary physical custody. Although Sarah was residing in Michigan with
her mother at the time of the accident, her domicile remained in Tennessee as established by the
1996 order. ACIA, the insurer of the Michigan household in which Sarah resided, was not liable
for PIP benefits under MCL 500.3114(1).
Grange reversed and remanded to the circuit court for entry of summary disposition in
favor of Grange.
ACIA reversed and remanded to the circuit court for entry of summary disposition in
favor of ACIA.
Justice ZAHRA, joined by Justices MARKMAN and MCCORMACK, concurred in the result
reached by the majority in both Grange and ACIA. He agreed with the majority that any person,
including a minor child, can have only one domicile at any given time and that Workman does
not stand for the proposition that “domicile” is the equivalent of “residence” for purposes of the
no-fault act. He disagreed, however, with the rule the majority adopted for determining the
domicile of a child with two legal residences under the Child Custody Act. The majority’s
holding that the domicile of a child with two legal residences is determined by a family court
order establishing physical custody of that child: (1) improperly assumes that a physical custody
order is the same as a domicile determination as a matter of law, (2) allows a family court order
awarding joint physical custody to establish an alternating domicile system, which is inconsistent
with the rule that a person may have only one domicile, and (3) impinges on an insurer’s ability
to accurately assess its risks when entering into insurance agreements and places an unreasonable
burden on insurers to inquire about and interpret family court custody orders. Justice ZAHRA
would have held that family court custody orders establish a presumption of domicile that may
be rebutted when the child’s actual living arrangements are so clearly inconsistent with the
family court’s custody order that it is reasonable to conclude that the parents have expressly or
impliedly reached an agreement regarding the child’s domicile. To rebut this presumption,
Justice ZAHRA would have required courts to consider the factors traditionally used to assess
domicile to determine the domicile of minor children.
©2013 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED JULY 29, 2013
STATE OF MICHIGAN
SUPREME COURT
GRANGE INSURANCE COMPANY OF
MICHIGAN,
Plaintiff/Counterdefendant-
Appellant,
v No. 145206
EDWARD LAWRENCE, Individually and
Joint Personal Representative of the Estate of
Josalyn A. Lawrence, and LAURA
ROSINSKI, Individually and Joint Personal
Representative of the Estate of Josalyn A.
Lawrence,
Defendants-Appellees,
and
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant/Counterplaintiff-
Appellee.
AUTOMOBILE CLUB INSURANCE
ASSOCIATION,
Plaintiff-Appellee/Cross-
Appellant,
v No. 143808
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellant/Cross-
Appellee,
and
ALLSTATE INSURANCE COMPANY,
Defendant.
BEFORE THE ENTIRE BENCH
MARY BETH KELLY, J.
These cases present two related issues under Michigan’s no-fault act:1 (1) whether
a child of divorced parents who has a legal residence in both parents’ homes and who is
injured in an automobile accident can be “domiciled” in more than one household within
the meaning of MCL 500.3114(1); and (2) whether a family court order establishing the
custody of minor children is conclusive evidence of a child’s domicile for purposes of
determining coverage under MCL 500.3114(1). We hold, consistent with traditional
definitions of the term “domicile” under the common law and as that term is used in
MCL 500.3114(1), that a child of divorced parents has only one domicile at any given
point in time. Further, in the event that the child’s parents are divorced and a family
court has entered an order relating to custody, we hold, consistent with the common law
of domicile as it pertains to minors and the legally binding nature of custody orders, that
1
MCL 500.3101, et seq.
2
the child’s domicile is established by operation of law and that the custody order is thus
determinative of the child’s domicile for all purposes, including the no-fault act.
In both Grange and ACIA, the respective judgment of divorce and custody order
conclusively established the minor children’s domiciles. Accordingly, we reverse the
judgment of the Court of Appeals in Grange, which erroneously held that a minor of
divorced parents can have two domiciles, and we remand to the circuit court for entry of
summary disposition in favor of Grange Insurance Company. In ACIA, we reverse the
judgment of the Court of Appeals, which erred by concluding that a question of fact
existed regarding the child’s domicile, and we remand to the circuit court for entry of
summary disposition in favor of ACIA.
I. FACTS AND PROCEDURAL HISTORY
A. GRANGE v LAWRENCE
Edward Lawrence and Laura Rosinski were married in 1997 and had two
daughters, Katelyn and Josalyn, the latter of whom is the deceased insured in this case.
Lawrence and Rosinski divorced in 2005; Rosinski remained in the marital home and
Lawrence moved into his parents’ home, both located in Muskegon, Michigan. The
judgment of divorce granted Lawrence and Rosinski joint legal custody of Josalyn and
Katelyn, but Rosinski was given “primary physical custody” of the girls. The judgment
of divorce provided Lawrence with frequent parenting time, including alternating
weekends, Wednesday evenings, alternating holidays, liberal phone contact, and liberal
parenting time when Rosinski was unavailable. The judgment of divorce further
provided:
3
A parent whose custody or parenting time of a child is governed by
this order, shall not change the legal residence of the child except in
compliance with [MCL 722.31], which prohibits moving a child out of the
State of Michigan or greater than 100 miles from the non-custodial parent
without a court order. The party awarded custody must notify the Friend of
the Court, in writing, immediately, when the minor child is moved to
another address.
On September 24, 2009, eight-year-old Josalyn was a passenger in a car owned
and driven by Rosinski when another driver ignored a stop sign and hit Rosinski’s
vehicle, resulting in fatal injuries to Josalyn. Rosinski and Lawrence were appointed as
joint personal representatives of Josalyn’s estate.2
After the accident, Rosinski and Lawrence submitted claims for personal injury
protection (PIP) insurance benefits to their respective insurers. Rosinski was the named
insured on an automobile insurance policy provided by Farm Bureau General Insurance
Company of Michigan (Farm Bureau); Lawrence was the named insured on an
automobile insurance policy provided by Grange Insurance Company (Grange). Farm
Bureau insured the car that was involved in the accident and Grange did not insure any
vehicle involved in the accident. With regard to Rosinski’s claim, Farm Bureau paid
more than $30,000 in PIP benefits for Josalyn’s injuries and death; Grange denied
Lawrence’s claim for PIP benefits.
Subsequently, Farm Bureau asserted that Grange was in the same order of priority
for the payment of PIP benefits because, in its view, Josalyn was “domiciled” in both
parents’ homes pursuant to MCL 500.3114(1); Farm Bureau thus sought from Grange
2
At the time of the accident, the 2005 judgment of divorce was still in effect. However,
Lawrence had moved into a two-bedroom apartment, while Rosinski continued to reside
in the former marital home.
4
partial reimbursement of benefits pursuant to MCL 500.3115(2). Grange denied the
claim and filed a complaint for declaratory relief, seeking a declaration that Josalyn was
domiciled with Rosinski, not Lawrence, at the time of the accident. Grange asserted that
it was not required to reimburse Farm Bureau for any of the PIP benefits that Farm
Bureau had paid because Josalyn was not “domiciled” with Lawrence at the time of the
accident as required by MCL 500.3114(1), and Michigan law does not recognize dual
domiciles. Grange further asserted that it was not obligated to pay PIP benefits for
Josalyn’s injuries because Josalyn was not a named insured under its policy.3
Farm Bureau filed a counterclaim seeking a declaratory judgment that Josalyn was
domiciled with each of her parents at the time of the accident and that Farm Bureau was
entitled to partial reimbursement of the PIP benefits it had paid. Farm Bureau also
argued that the Grange policy conflicted with the no-fault act by excluding Josalyn as an
insured through its automatic attribution of domicile to the residence of the custodial
parent.
Both insurance companies filed motions for summary disposition pursuant to
MCR 2.116(C)(10) and the circuit court granted summary disposition to Farm Bureau.
3
The pertinent portion of Grange’s policy provided PIP “benefits to or for an insured
who sustains bodily injury . . . caused by an accident.” The Grange policy defined
“insured” to include “You or any family member injured in an auto accident.” The
Grange policy further defined “family member” as:
[A] person related to you by blood, marriage or adoption and whose
principal residence is at the location shown on the Declarations page. If a
court has adjudicated that one parent is the custodial parent, that
adjudication shall be conclusive with respect to the minor child’s principal
residence. [Emphasis added.]
5
Applying the factors that are traditionally used to determine domicile under the no-fault
act as set forth in Workman v Detroit Automobile Inter-Insurance Exchange4 and
Dairyland Insurance Co v Auto-Owners Insurance Co,5 the circuit court concluded that
Josalyn had two domiciles at the time of the accident, one with each parent. The circuit
court thus ordered Grange to reimburse Farm Bureau for 50 percent of the PIP benefits
Farm Bureau had paid and 50 percent of Farm Bureau’s processing expenses.
Grange appealed to the Court of Appeals, which affirmed the circuit court’s
decision.6 The Court of Appeals rejected Grange’s argument that Michigan law does not
recognize dual domiciles for a minor child of divorced parents because, according to the
panel, “[t]he Michigan Supreme Court has . . . determined . . . for purposes of the no-fault
act, [that] the terms ‘domicile’ and ‘residence’ are ‘legally synonymous’” and “nothing in
MCL 500.3114(1) . . . limits a minor child of divorced parents to one domicile or defines
domicile as a ‘principal residence.’”7 After applying the domicile factors from Workman
and Dairyland, the Court of Appeals concluded that the undisputed evidence established
that Josalyn resided with both parents. Regarding the effect of the judgment of divorce,
which established primary physical custody with Rosinski, the Court of Appeals stated,
“that order does not change the fact that the evidence showed that Josalyn actually
4
Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 496-497; 274 NW2d 373
(1979).
5
Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 682; 333 NW2d 322
(1983).
6
Grange Ins Co of Mich v Lawrence, 296 Mich App 319, 325; 819 NW2d 580 (2012).
7
Id. at 323, 324.
6
resided with both her parents, which is the relevant inquiry under the no-fault act.”8 The
Court of Appeals also held that Grange’s policy was invalid because the policy, which
requires a court adjudication of custody to be conclusive for determining a child’s
principal residence, would limit Grange’s “obligation where the no-fault act does
not . . . .” 9
Grange sought leave to appeal, which this Court granted.10
B. ACIA v STATE FARM
In this case, Sarah is the minor child fatally injured in a motor vehicle accident.
Sarah’s parents, Francis Campanelli and Tina Taylor, were divorced in Michigan in 1995.
The original judgment of divorce granted joint legal custody of Sarah and her sister,
Ashley, to both parents and “physical custody” to Campanelli, allowing Taylor only
reasonable visitation. Additionally, the judgment of divorce contained the following
provision:
DOMICILE OF THE MINOR CHILDREN
The domicile or residence of said minor children shall not be
removed from the State of Michigan without the prior approval of the
8
Id. at 324.
9
Id. at 325.
10
Grange Ins Co v Lawrence, 493 Mich 851 (2012). We directed the parties to address:
(1) whether a person, and in particular the minor child of divorced parents,
can have two domiciles for the purpose of determining coverage under
MCL 500.3114(1) of the Michigan no-fault act; (2) whether, in answering
the first issue, a court order determining the minor’s custody has any effect;
and (3) whether an insurance policy provision giving preclusive effect to a
court-ordered custody arrangement is enforceable. [Id.]
7
Court, and that [Campanelli] shall promptly notify the Friend of the Court
whenever said children are moved to another address.
A little more than a year after the family court granted the judgment of divorce,
Campanelli secured a job in Tennessee that offered a considerable improvement in his
career. He moved the family court to modify the original judgment of divorce and
successfully obtained an order in February 1996, as the custodial parent, permitting him
to change the children’s domicile to the state of Tennessee.11 Under the terms of that
order, Taylor was entitled to six weeks of visitation in the summer, and Campanelli and
Taylor were to alternate the one-week Easter, Christmas, and winter school vacations.
The February 1996 order did not otherwise modify either the joint legal custody
originally granted to both parents or the physical custody awarded to Campanelli.
In 2007, when Sarah was 16-years-old, she went to Michigan to stay for the
summer with her mother, who lived with Sarah’s great-uncle, Terry Gravelle, in Howell,
Michigan. During the time that she lived with her mother, Sarah decided that she wanted
to get to know Taylor better and, with Campanelli’s permission, remained in Michigan
with her mother and attended high school that fall.12
On November 26, 2007, Sarah was a passenger in a car driven by her friend,
Kayla, and insured by State Farm Mutual Automobile Insurance Company (State Farm).
Kayla lost control of the car, which careened off the road and into a tree, resulting in
11
The family court’s order was entitled “Order Permitting Defendant to Change
Children’s Domicile to the State of Tennessee.”
12
Taylor provided Sarah with a room of her own in her uncle’s home, filed an affidavit of
residence with the Howell Public Schools, affirming that Taylor lived in Howell and that
Sarah resided with her. Taylor listed Gravelle’s address as their residence.
8
what would ultimately be fatal injuries to Sarah. The severe injuries Sarah sustained
required medical care. Automobile Club Insurance Association (ACIA), as the insurer of
Sarah’s uncle, Gravelle, in whose household Sarah resided, paid Sarah’s medical bills
during the period before her death.13
ACIA commenced an action in the circuit court to secure determinations that (1)
Sarah was not “domiciled” in Michigan, (2) ACIA, therefore, was not responsible for
Sarah’s PIP benefits under MCL 500.3114(1), and (3) State Farm, as the insurer of the
vehicle in which Sarah was a passenger when she was injured, was the responsible
insurer pursuant to the no-fault priority provision of MCL 500.3114(4). State Farm
denied liability and both providers filed cross-motions for summary disposition under
MCR 2.116(C)(10).
The circuit court granted summary disposition in favor of State Farm, finding that
Sarah “had residency in Michigan with her mother and her uncle at the time of the motor
vehicle accident.”14 The circuit court noted the conflicting testimony on the issue of
13
In the meantime, Taylor, after learning that Campanelli was planning to have Sarah
flown back to Tennessee for medical care, obtained an ex parte order from the Wayne
Circuit Court purporting to transfer Sarah’s custody to Taylor and her domicile to
Taylor’s Michigan address. The Wayne Circuit Court later reversed itself on January 7,
2008, vacating the ex parte order and declaring it void ab initio. By that time, however,
Sarah had passed away from her injuries. Sarah’s parents, however, continued to litigate.
Taylor sought to open an estate for Sarah in Livingston County Probate Court,
contending that Sarah was domiciled in Michigan when she died. After a two-day
testimonial hearing, the probate court ruled that, consistent with the provisions of the
family court’s orders in the divorce proceedings, Sarah was domiciled in Tennessee, not
in Michigan, on the date of her death. The probate court entered orders pursuant to its
ruling, declaring Sarah to be a “nonresident of Michigan” and giving Campanelli the right
to make decisions regarding funeral arrangements for Sarah.
14
The circuit court concluded that it was not bound by the probate court’s determination
9
Sarah’s intent to return to Tennessee, but then concluded that the record reflected a “lack
of evidence of a clear intent to return to Tennessee . . . .” In support, the circuit court
cited the absence of any definite actions by Sarah to withdraw from school in Michigan
and reenroll in school in Tennessee, coupled with indications that Sarah regarded her
mother’s residence as her own. Accordingly, because the circuit court found that Sarah
was domiciled in Michigan, it ruled that ACIA was responsible for Sarah’s PIP benefits
under MCL 500.3114(1).
The Court of Appeals reversed, reasoning that the evidence of Sarah’s domicile,
and in particular her intent, presented a question of fact for resolution by the jury and that
summary disposition was, thus, not proper for either party.15 The Court of Appeals also
rejected ACIA’s argument that the judgment of divorce and subsequent February 1996
order modifying domicile conclusively established Sarah’s domicile for all purposes.
According to the panel, the family court “did not determine Sarah’s domicile for the
purpose of insurance coverage, and there is no authority that suggests that [the circuit
court in the insurance dispute] was required to adopt the ruling of different jurisdictions
deciding the issue for a different purpose for different parties.”16
that Sarah was domiciled in Tennessee, see note 13, because the parties to the probate
court proceedings were different.
15
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co, unpublished opinion per curiam of
the Court of Appeals, issued June 21, 2011 (Docket No. 294324).
16
Id. at 4-5.
10
State Farm applied to this Court for leave to appeal and ACIA filed a response to
that application, as well as a cross-application. We ordered argument on whether to grant
the applications or take other action.17
II. STANDARD OF REVIEW
This Court reviews de novo a decision to grant or deny a motion for summary
disposition.18 Summary disposition under MCR 2.116(C)(10) is appropriately granted
where no genuine issue of material fact remains and the moving party is entitled to
judgment as a matter of law.19 A domicile determination is generally a question of fact;
however, where the underlying material facts are not in dispute, the determination of
domicile is a question of law for the circuit court.20 We likewise review de novo issues
of statutory interpretation.21
17
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co, 491 Mich 875 (2012). We directed
the parties to address “whether legal residence and domicile of the insured minor were
conclusively established in Tennessee pursuant to the judgment of divorce entered by the
Wayne Circuit Court, as amended, or whether the minor had the capacity to acquire a
different legal residence or domicile of choice.” Id., citing Vanguard Ins Co v Racine,
224 Mich App 229, 233; 568 NW2d 156 (1997); MCR 3.211(C)(1) and (3); 8 Mich Civ
Jur, Domicile, § 7; Restatement, Conflict of Laws, 2d, §§ 15 and 22(1) comments a and
d.
18
Elba Twp v Gratiot Co Drain Com’r, 493 Mich 265, 277; 831 NW2d 204 (2013).
19
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
20
Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554 (1933).
21
Elba Twp, 493 Mich at 278.
11
III. ANALYSIS
Michigan’s no-fault act generally abolishes tort liability arising from the
ownership, maintenance, or use of a motor vehicle.22 Instead, insurance companies are
required to provide first party insurance benefits for accidental bodily injury arising out
of the use of a motor vehicle, which are commonly referred to as personal protection
insurance (PIP) benefits.23 In this regard, MCL 500.3114(1), which is at the center of the
litigation in both these cases, provides the general rule for determining which Michigan
insurer is liable to provide PIP benefits. The statute provides, in relevant part:
[A] personal protection insurance policy described in [MCL
500.3101(1)] applies to accidental bodily injury to the person named in the
policy, the person’s spouse, and a relative of either domiciled in the same
household, if the injury arises from a motor vehicle accident.[24]
In these cases, the parties dispute whether the injured individual was a relative of the
insured who was “domiciled in the same household” as the insured.
In the instance that more than one insurer’s policy is applicable to the injured
person under this provision, then the priority provision of MCL 500.3115(2) is triggered
and may allow an insurer to recoup benefits from other insurer(s) of equal priority.25
22
See MCL 500.3105.
23
MCL 500.3107; MCL 500.3108.
24
MCL 500.3114(1) (emphasis added).
25
MCL 500.3115(2) provides:
When 2 or more insurers are in the same order of priority to provide
personal protection insurance benefits an insurer paying benefits due is
entitled to partial recoupment from the other insurers in the same order of
priority, together with a reasonable amount of partial recoupment of the
12
This is the legal situation in Grange, wherein the lower courts held that Josalyn had two
“domiciles” within the meaning of MCL 500.3114(1)—one with Lawrence insured by
Grange and another with Rosinski insured by Farm Bureau. Pursuant to MCL
500.3115(2), the lower courts thus concluded that Grange is an insurer of equal priority
with Farm Bureau, thereby entitling Farm Bureau to partial recoupment of the PIP
benefits that it had paid on Josalyn’s behalf.
Comparatively, in some instances no insurer’s PIP policy is applicable to the
injured person under MCL 500.3114(1) because the person is not “the person named in
the policy, the person’s spouse, [or] a relative of either domiciled in the same
household . . . .” In this event, MCL 500.3114(4) may apply such that the insurer of the
accident vehicle is liable for PIP benefits to the occupant of a motor vehicle. MCL
500.3114(4) provides:
Except as provided in [MCL 500.3114(1)-MCL 500.3114(3)], a
person suffering accidental bodily injury arising from a motor vehicle
accident while an occupant of a motor vehicle shall claim personal
protection insurance benefits from insurers in the following order of
priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied.
This is the legal posture of ACIA, where the dispute involves whether Sarah was
“domiciled with a relative” in Michigan for the purposes of MCL 500.3114(1), or instead,
whether MCL 500.3114(4) applies. The circuit court concluded that Sarah was domiciled
expense of processing the claim, in order to accomplish equitable
distribution of the loss among such insurers.
13
in Michigan, thus making ACIA, the insurer of Sarah’s uncle with whom she resided in
Michigan, liable for PIP benefits rather than State Farm, the insurer of the accident
vehicle.
The pivotal inquiry in both these insurance-coverage disputes, then, turns on the
interpretation of the term “domiciled” as it is used in MCL 500.3114(1). Mainly, the
meaning of “domicile,” and specifically how a child’s domicile is determined, will dictate
the ultimate determination of which insurer is liable for PIP benefits in each case. Our
inquiry first addresses the preliminary issue raised only in Grange: whether a child of
divorced parents injured in a motor vehicle accident can be “domiciled” in more than one
household for purposes of the no-fault act. We next consider the question posed in both
Grange and ACIA: whether a family court order pertaining to a child’s custody
conclusively establishes a child’s domicile under the no-fault act.
A. DOMICILE AND THE NO-FAULT ACT
Notably, the no-fault act does not define the term “domiciled.” The unambiguous
language of MCL 500.3114(1) simply states that “a personal protection insurance
policy . . . applies to accidental bodily injury to the person named in the policy, the
person’s spouse, and a relative of either domiciled in the same household . . . .”26 When
construing this statutory language, our main objective is to discern the Legislature’s
intent through the language plainly expressed.27 Normally, this Court will accord an
26
Emphasis added.
27
Title Office, Inc v Van Buren Co Treasurer, 469 Mich 516, 519; 676 NW2d 207
(2004).
14
undefined statutory term its ordinary and commonly used meaning.28 However, where
the Legislature uses a technical word that has acquired a particular meaning in the law,
and absent any contrary legislative indication, we construe it “according to such peculiar
and appropriate meaning.”29 The term “domicile” is just such a word that has a precise,
technical meaning in Michigan’s common law, and thus must be understood according to
that particular meaning.
For over 165 years, Michigan courts have defined “domicile” to mean “the place
where a person has his true, fixed, permanent home, and principal establishment, and to
which, whenever he is absent, he has the intention of returning.”30 Similarly, a person’s
domicile has been defined to be “‘that place where a person has voluntarily fixed his
abode not for a mere special or temporary purpose, but with a present intention of making
it his home, either permanently or for an indefinite or unlimited length of time.’”31 In this
regard, the Court has recognized that “[i]t may be laid down as a settled maxim that every
man must have such a national domicile somewhere. It is equally well settled that no
person can have more than one such domicile, at one and the same time.”32 From this
settled principle, it follows that
28
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008).
29
MCL 8.3a.
30
In re High, 2 Doug 515, 523 (Mich, 1847).
31
Henry v Henry, 362 Mich 85, 101-102; 106 NW2d 570 (1960), quoting Williams v
North Carolina, 325 US 226, 236; 65 S Ct 1092; 89 L Ed 1577 (1945) (quotation marks
omitted).
32
In re High, 2 Doug at 523 (emphasis added); see also In re Scheyer’s Estate, 336 Mich
645, 651-652; 59 NW2d 33 (1953) (“One cannot be permanently located in more than 1
15
a man retains his domicile of origin [upon his birth] until he changes it, by
acquiring another; and so each successive domicile continues, until changed
by acquiring another. And it is equally obvious that the acquisition of a
new domicile does, at the same instant, terminate the preceding one.[33]
In this way, our common law has recognized that from the time of a person’s birth—from
childhood through adulthood—a person can only have a single domicile at any given
point in time. Indeed, there are few legal axioms as established as the one providing that
every person has a domicile, and that a person may have one—and only one—domicile.
In furtherance of this understanding of domicile, the common law has necessarily
distinguished between the concepts of “domicile” and “residence:”
The former, in its ordinary acceptation, was defined to be, ‘A place
where a person lives or has his home,’ while ‘[a]ny place of abode or
dwelling place,’ however temporary it might have been, was said to
constitute a residence. A person’s domicile was his legal residence or home
in contemplation of law.[34]
Stated more succinctly, a person may have only one domicile, but more than one
residence.35 For purposes of distinguishing “domicile” from “residence,” this Court has
explained that “domicile is acquired by the combination of residence and the intention to
reside in a given place . . . . If the intention of permanently residing in a place exists, a
residence in pursuance of that intention, however short, will establish a domicile.”36 The
place; one cannot be domiciled in more than 1 place; one cannot intend to remain for an
extended period of time in more than 1 place.”).
33
In re High, 2 Doug at 523.
34
Gluc v Klein, 226 Mich 175, 177-178; 197 NW 691 (1924).
35
In re Scheyer’s Estate, 336 Mich at 651-652.
36
Beecher v Common Council of Detroit, 114 Mich 228, 230; 72 NW 206 (1897).
16
traditional common-law inquiry into a person’s “domicile,” then, is generally a question
of intent, but also considers all the facts and circumstances taken together.37
Returning to the language of MCL 500.3114(1), there is no indication that the
Legislature intended to deviate from this well established common-law meaning of the
term “domicile.” And, because a person, from the moment of his birth onward, can only
have one domicile within the traditional meaning of that term, it follows that a child,
regardless of his parents’ marital status or his multiple legal residences, may also have
only one domicile at any given point in time.38
Indeed, rather than there being any indication that the Legislature intended to
deviate from this common-law rule, there is, in fact, evidence that the Legislature favored
this single-location rule. Had the Legislature intended to make insurers liable for PIP
benefits for dual coexisting “domiciles,” then it would have used the term “resided,” not
“domiciled,” because, as previously explained, a person may have more than one
residence at a time, but only one domicile. However, the Legislature instead expressly
chose to use the more restrictive term, “domiciled,” thereby limiting the universe of
insurers that are potentially liable under MCL 500.3114(1). In fact, the Legislature
specifically rejected use of the term “residence,” as used in the uniform act on which the
37
In re High, 2 Doug 523-524 (“The question of domicile, is then, a question of fact and
intent, and if these elements are found, the reference of the domicile to one place or
another depends upon the comparative weight of the circumstances.”).
38
For reasons we explain later in this opinion, the Child Custody Act, MCL 722.21 et
seq., which governs the creation of child custody orders, does not abrogate the common-
law rule that a person can have only a single domicile and does not create a dual-domicile
situation.
17
no-fault act is modeled, in favor of the term “domiciled” in defining those eligible for PIP
benefits under MCL 500.3114(1).39 The Legislature thus affirmatively chose a term that
it knew had a particular meaning, and we must accord this legislative choice its full
weight when determining the Legislature’s intent.
Therefore, given the absence of any indication that the Legislature intended a
contrary meaning, the Legislature’s use of the term “domiciled,” evinces an intent to
incorporate all those common-law legal concepts related to that term, including the law of
domicile as it relates to minors more fully addressed below. Accordingly, consistent with
the traditional common-law principle that a person may have only one domicile at a given
point in time, we hold that a child, whose parents are divorced and who has more than
one legal residence, may have only a single domicile at any one point in time that
continues until the child acquires a different one.
Farm Bureau, however, suggests that we should reach the opposite conclusion—
that a child of divorced parents who has two legal residences may also have two
coexisting domiciles, one with each parent. In support, Farm Bureau, like the Court of
Appeals in Grange, asserts that our decision in Workman specifically recognized
39
This Court has acknowledged that the no-fault act is modeled after the Uniform Motor
Vehicle Reparations Act, see MacDonald v State Farm Mut Ins Co, 419 Mich 146, 151;
350 NW2d 233 (1984). Section 1(a)(3)(ii) of 14 ULA, Civil Procedural and Remedial
Laws, Uniform Motor Vehicle Accident Reparations Act, p 43, includes those “residing
in the same household with a named insured” within the definition of “basic reparation
insured,” of whom are eligible for benefits. See id. at § 4(b), p 56. In other words, under
the model act, a person need only reside in the same household as the policy holder to be
considered a basic reparation insured who may claim benefits against the policyholder’s
insurance company. Id. at 57.
18
“residence” and “domicile” to be legally synonymous for purposes of MCL 500.3114(1),
meaning that, just as a person can have more than one residence, a person can also have
more than one “domicile.” In Workman, the seminal case in which we interpreted the
phrase “domiciled in the same household” as used in MCL 500.3114(1), we considered
whether the claimant, the insured’s adult daughter-in-law, was domiciled in the same
household as the insured. After noting that no caselaw interpreted the phrase, “domiciled
in the same household,” we articulated a flexible multi-factor test to aid courts in
determining domicile, in which no one factor is determinative.40 The factors to be
considered included:
(1) the subjective or declared intent of the person of remaining,
either permanently or for an indefinite or unlimited length of time, in the
place he contends is his “domicile” or “household; (2) the formality or
informality of the relationship between the person and the members of the
household; (3) whether the place where the person lives is in the same
house, within the same curtilage or upon the same premises, (4) the
existence of another place of lodging by the person alleging “residence” or
“domicile” in the household . . . .[41]
40
Workman, 404 Mich at 495-496.
41
Id. at 496-497 (citations omitted). Later, in Dairyland Ins Co v Auto-Owners Ins Co,
123 Mich App at 682, the Court of Appeals added five more factors relevant for
determining no-fault domicile, with a particular focus on adult children of an insured who
may have complicated living arrangements:
Other relevant indicia of domicile include such factors as [1]
whether the claimant continues to use his parents’ home as his mailing
address, [2] whether he maintains some possessions with his parents, [3]
whether he uses his parents’ address on his driver’s license or other
documents, [4] whether a room is maintained for the claimant at the
parents’ home, and [5] whether the claimant is dependent upon the parents
for support.
19
In articulating this test, the Court stated:
Although the statutory language of [MCL 500.3114(1)] refers to
persons “domiciled in the same household” as an insured, we believe this
body of law [that deals with the question of whether a person is a ‘resident’
of an insured’s ‘household’ under particular insurance policies,] is
analytically applicable to the consideration before us. We conclude this
because, in this state, the terms “domicile” and “residence” are legally
synonymous (except in special circumstances).[42]
It is this final phrase—“the terms ‘domicile’ and ‘residence’ are legally
synonymous”—on which Farm Bureau and the Court of Appeals rely. This statement,
however, when read in context of the entire opinion, does not stand for the proposition
that domicile is the equivalent of residence under MCL 500.3114(1). Rather, Workman
merely acknowledged that, generally, “residence” has sometimes been given the
equivalent meaning of “domicile.” Workman did not, however, establish that
interpretation as an absolute rule. Indeed, this point is bolstered by the cases Workman
cites in support of its statement that “the terms ‘domicile’ and ‘residence’ are legally
The Workman-Dairyland multifactored framework comprises the one now commonly
employed by Michigan courts when a question of fact exists as to where a person is
domiciled.
42
Workman, 404 Mich at 495 (second emphasis added). In support of the statement, “the
terms ‘domicile’ and ‘residence’ are legally synonymous,” Workman provides the
following in footnote 4, id. at 495 n 4:
Gluc v Klein, 226 Mich 175, 178; 197 NW 691 (1924); Hartzler v
Radeka, 265 Mich 451, 452; 251 NW 554 (1933); Reaume & Silloway, Inc
v Tetzlaff, 315 Mich 95; 23 NW2d 219 (1946). For an example of such a
“special circumstance”, see School District No 1, Fractional, of Mancelona
Twp v School District No 1 of Custer Twp, 236 Mich 677, 681; 211 NW 60(1926); Ortman v Miller, 33 Mich App 451, 458; 190 NW2d 242 (1971).
20
synonymous.” Workman first cited to Gluc v Klein,43 where this Court recognized the
traditional common-law distinction between “residence” and “domicile,” but noted that
sometimes the Legislature has given residence the same meaning as domicile. We later
made the same point in both Hartzler v Radeka44 and Reaume & Silloway, Inc v
Tetzlaff.45 Further, the two cases Workman cited as “special circumstances” in which
“domicile” and “residence” are not synonymous both involved determining a minor’s
domicile for purposes of applying relevant statutes.46
However, the corollary—that domicile has sometimes been given the same
meaning as residence—is simply not true. This Court has never interpreted “domicile” to
be the equivalent of “residence,” as demonstrated by the cases Workman cites and the
preceding discussion regarding the common-law meaning of domicile. Indeed, Workman
itself cannot reasonably be interpreted to advocate such a conclusion, given that
Workman adopts a multifactor domicile test that is analytically the same as the traditional
domicile test employed for more than a century at common law. Stated otherwise,
43
Gluc, 226 Mich at 175, 178.
44
Hartzler, 265 Mich at 451, 452.
45
Reaume & Silloway, Inc, 315 Mich at 95, 99.
46
See Sch Dist No 1 Fractional of Mancelona Twp, 236 Mich at 681 (concluding that the
Legislature, in the context of a school statute, intended to give the terms “residence” and
“domicile” their traditional, distinctive common-law meanings); and Ortman, 33 Mich
App at 458 (reaching the same conclusion in the context of a motor vehicle accident
claims fund statute).
21
Workman is entirely consistent with our conclusion that the term “domicile” is to be
interpreted the same as its common-law meaning.
Our holding thus clarifies, that to the extent that Workman has been understood to
imply that “domicile” and “residence” retain no independent significance for the
purposes of the no-fault act, such a conclusion is not valid and that “domicile” must be
understood consistent with its historical underpinnings. Further, although Workman
recognized that “domicile” and “residence” are often used interchangeably by the
Legislature in other contexts and, therefore described the terms as synonymous in those
situations, Workman also explained that it is often necessary to distinguish between the
terms consistent with the Legislature’s intent, as in the instant case.47
The Court of Appeals in Grange therefore erred by interpreting Workman to mean
that domicile is the equivalent of residence and that a minor child can be “domiciled” for
purposes of MCL 500.3114(1) in multiple residences.48 Neither Workman nor the plain
47
Similarly, see Feaster v Portage Pub Sch, 451 Mich 351, 356; 547 NW2d 328 (1996)
(quoting Feaster v Portage Pub Sch, 210 Mich App 643, 657; 534 NW2d 242 (1995),
rev’d 451 Mich 351 (1996), in turn citing Sch Dist No 1 Fractional of Mancelona Twp,
236 Mich at 681-682), where this Court more recently reasserted the legal difference
between the terms “domicile” and “residence” in the context of applying school statutes
to minor children, concluding that “[i]t is well established that residency for educational
purposes is not the equivalent of legal domicile.” Likewise, construing “domicile” and
“residence” as synonymous under the no-fault act would entirely defeat the specific
legislative choice to employ the more restrictive term “domiciled” in place of broader
term “resided.”
48
For this same reason, Farm Bureau’s suggestion that this Court follow the holding of a
Sixth Circuit Court of Appeals case, Walbro Corp v Amerisure Cos, 133 F3d 961 (CA 6,
1988), is unavailing. In Walbro, the Sixth Circuit interpreted Workman to permit dual
domiciles where the minor child had a legal residence with both parents as a result of a
22
language of MCL 500.3114(1) support this conclusion. The Court of Appeals’ holding in
Grange, and Farm Bureau’s adherence to that position, is plainly inconsistent with our
jurisprudence regarding the meaning of “domicile” and the clear language of MCL
500.3114(1) which, as we have explained, incorporates the common-law meaning of that
term.
B. DETERMINING A CHILD’S DOMICILE
Our holding, that a child may have only one domicile at any one time consistent
with traditional common-law principles, does not establish how a child’s single domicile
is determined. Workman and its progeny applying the traditional domicile test defined
domicile in relation to an adult but, for reasons that we will explain, these factors are not
helpful in determining a child’s domicile. To resolve how a child’s domicile is
determined—and given our conclusion that the Legislature intended that the term
“domiciled,” as used in MCL 500.3114(1), be interpreted consistent with its common-law
meaning—we further consider the law of domicile as it pertains to minors.
i. THE COMMON LAW OF DOMICILE PERTAINING TO MINORS
Our common law recognizes three means of acquiring a domicile, which are
generally applicable to all persons depending on the factual circumstances, including: (1)
domicile of origin or of nativity; (2) domicile of choice; and (3) domicile by operation of
joint legal and physical custody order. Aside from its lack of any precedential value,
Walbro misconstrued Workman and the statutory language of MCL 500.3114(1) in the
same manner as the Court of Appeals in Grange as permitting a person to have more than
one domicile at a given point in time. Walbro also wrongly applied, for reasons we
explain later in this opinion, the Workman domicile factors to determine the child’s
domicile.
23
law.49 A domicile of origin or of nativity is established when a person is born, fulfilling
the maxim that every person has a domicile from the time of birth.50 Meanwhile, a
domicile by choice occurs when a person replaces his current domicile by choosing
another, consistent with the proposition that every person must have a domicile until a
new domicile is determined. Finally, a domicile by operation of law occurs when a
person with a legal disability lacks the capacity to acquire a domicile of choice, and thus
the domicile is established by operation of law.51
Typically, as indicated in the preceding discussion and demonstrated by the
Workman factors, an adult acquires a new domicile by choosing one of his or her choice,
which makes the question of intent a preeminent concern in determining an adult’s
domicile. One of the requisites for acquiring a domicile of choice, then, is the legal
capacity necessary to form the intent required to select a new domicile.52
49
8 Mich Civ Jur, Domicile, § 1.
50
See In re High, 2 Doug at 523-524.
51
Restatement, Conflict of Laws, 2d, §§ 22, 23; 8 Mich Civ Jur, Domicile, § 5.
52
Comments a and b of the Restatement, § 15 provide:
a. Requirements for acquisition of domicil of choice. The
requirements for acquiring a domicil of choice are (1) legal capacity to do
so, (2) physical presence as described in § 16 and (3) the existence of the
attitude of mind described in § 18 toward the place in question. . . .
b. A person may acquire a domicil of choice if
(1) having had a domicil by operation of law, such as a domicil of
origin, he acquires a domicil of choice in a place other than his former
domicil; or
24
Regarding children, a child’s ability to acquire a new domicile is limited in ways
that an adult’s ability to acquire a domicile is not. This is because, for purposes of our
legal system, an unemancipated child, unlike a competent adult, lacks the legal capacity
to make legally binding determinations for him or herself and, therefore, a child lacks the
capacity to acquire a domicile of choice.53 Thus, while intent is critical for determining
the domicile of an adult, a child’s intent regarding domicile is simply irrelevant, and the
traditional factors applied in determining an adult’s domicile are likewise irrelevant.
Instead, the child’s domicile is determined by reference to the domicile of his or her
parents.54 For instance, our common law has recognized that when a child is born, the
child acquires a domicile of origin, which is that of his father.55 The child’s domicile of
(2) having had a domicil of choice in one place, he acquires a new
domicil of choice in another place. [Emphasis added.]
53
See id. It is basic black letter law that an unemancipated minor lacks the legal capacity
to acquire a domicile of choice. See Yarborough v Yarborough, 290 US 202, 211; 54 S
Ct 181; 78 L Ed 269 (1933) (“[Minor child] was not capable by her own act of changing
her domicile.”); Miss Band of Choctaw Indians v Holyfield, 490 US 30, 48; 109 S Ct
1597; 104 L Ed 2d 29 (1989) (“[M]ost minors are legally incapable of forming the
requisite intent to establish a domicile . . . .”). Our Legislature has recognized that
unemancipated minors lack the necessary legal capacity to acquire a domicile of choice
by expressly granting emancipated minors “the right to establish a separate domicile.”
MCL 722.4e(1)(d).
54
See Holyfield, 490 US at 48 (“[Generally, a child’s] domicile is determined by that of
their parents.”); see also Lamar v Micou, 112 US 452, 470; 5 S Ct 221; 28 L Ed 751(1884) (stating the general rule that the domicile of an infant follows that of his father).
55
See In re High, 2 Doug at 523-524 (recognizing that a child acquires a domicile of
origin upon birth that is the same as his parents); Hering v Mosher, 144 Mich 152,
154; 107 NW 907 (1906) (noting that a child’s domicile of origin is the same as his
father’s domicile).
25
origin remains the child’s domicile until a new domicile is acquired through the actions
of the child’s parents or until that point in time when the minor, either through
emancipation or by reaching the age of majority, can acquire a domicile of choice.56
The inquiry into a child’s domicile becomes more complicated when the child’s
parents are divorced. Our common law, however, has accounted for these types of
familial situations. Specifically, nearly a century ago in In re Volk,57 this Court
considered the domicile of a child for purposes of determining whether Michigan courts
must accord full faith and credit to Ohio judgments pertaining to a child. In that case, the
parents of the minor child had previously lived in Ohio, but after their divorce the mother
established a new domicile in Michigan. The Court explained:
[U]nder the decree of divorce, the mother was given [the child’s]
unrestricted custody. His domicile thereafter became that of his mother,
and, when she removed to this State and became domiciled here, the
domicile of the child was in Michigan.[58]
56
See In re High, 2 Doug at 524 (explaining that a child who “was born in Vermont,
about the year 1812, where he continued to reside with his parents, who were
domiciled there, until he went south some time prior to 1832, and before he had
attained the age of twenty-one[,]” was domiciled in Vermont, as “Vermont, then, was
the domicile of his birth or nativity . . . and it continued to be his domicile until he
acquired another, which he could not do until he arrived at full age . . . .” [emphasis
added]). Indeed, in the instance where a child’s parents remain married, when the
parents acquire a new domicile of choice, the child also acquires that same domicile
consistent with the parents’ intent. Under these circumstances, because the child’s
domicile is determined in relation to his parents’ domicile, the Workman factors remain
relevant only to the extent that they are used to determine the parents’ intentions. See
Holyfield, 490 US at 48.
57
In re Volk, 254 Mich 25; 235 NW 854 (1931), overruled in part on other grounds by
Hentz v Hentz, 371 Mich 335 (1963).
58
In re Volk at 31-32 (emphasis added).
26
By acknowledging that the child’s domicile changed by operation of law as a result of the
decree of divorce, this Court expressly recognized that a child’s domicile, upon the
divorce or separation of the child’s parents, is the same as that of the parent to whose
custody he has been legally given pursuant to a custody order.59 More simply put, In re
Volk held that a custody determination is determinative of a child’s domicile.60 Under
our common law, then, a child’s domicile upon the divorce of his parents and entry of a
custody order is established by operation of law consistent with the terms of the custody
order.
We reaffirm these common-law principles and, in doing so, we emphasize that
domicile is a singular concept. Just as a person does not have two domiciles, a person
likewise does not have a domicile set by operation of law for some purposes and perhaps
a different domicile for other purposes—such as for consideration under the no-fault act
or any other statute that uses the term “domicile.” A person’s domicile for one purpose is
his domicile for all purposes; similarly, a child does not have a domicile set by court
59
The United States Supreme Court recognized the same principle in Yarborough, 290
US at 211, when it indicated that the child’s “domicile continued to be [the same as her
father’s] until entry of the [divorce] judgment in question [which granted the mother
custody of the child].” Likewise, the Restatement, § 22, comment d states in part, “A
child’s domicil, in the case of the divorce or separation of his parents, is the same as that
of the parent to whose custody he has been legally given.”
60
In re Volk, 254 Mich at 31-32. Similarly, and more recently, in Vanguard Ins Co v
Racine, 224 Mich App 229, 233; 568 NW2d 156 (1997), the Court of Appeals noted that
a party has only one domicile, and, in the case of a minor child of divorced parents, the
one domicile would be that parent’s home where the minor “spent the majority of his
time and where [the parent] had physical custody . . . under the divorce judgment.”
(Emphasis added.)
27
order only for certain purposes, but not others.61 The Legislature made a deliberate
choice in selecting the term “domiciled” in Michigan’s no-fault act, and where domicile
is set by operation of law, that determination must be given full legal effect.
Our analysis could end with articulation of this common-law rule and affirmation
of these principles. We would be remiss, however, not to acknowledge that child custody
orders are created pursuant to the provisions of the Child Custody Act,62 which was
enacted 40 years after In re Volk was decided. Consequently, because we have concluded
that MCL 500.3114(1) incorporates the common law of domicile, which provides that a
custody order is determinative of a child’s domicile, it is necessary to further consider
whether the Child Custody Act is consistent with this common-law directive. We
conclude that the Child Custody Act is consistent with the common-law rule and that the
Act’s provisions enforce the traditional determinations regarding what entities have the
legal capacity to establish a minor child’s domicile.
ii. THE CHILD CUSTODY ACT AND DOMICILE
The Child Custody Act governs the creation of child custody orders and provides a
comprehensive statutory scheme for resolving custody disputes.63 With it, the
61
In an effort to avoid creating a two-domicile situation under its rebuttable presumption
test, i.e., the concurrence would allow a child to have one domicile for purposes of the
no-fault act and another different domicile in the family law context, the concurrence
argues that the family court lacks the authority to determine a minor child’s domicile in
its custody orders. This position, however, conflicts with the concurrence’s rebuttable
presumption test, which recognizes the family court’s authority in this regard by treating
the custody order as presumptive evidence of a minor child’s domicile.
62
Child Custody Act, MCL 722.21 et seq.
63
MCL 722.26.
28
Legislature has sought to promote the best interests of children, which is the hallmark of
any custody order. To this end, the Legislature has charged courts, in any dispute
regarding custody, with “declar[ing] the child’s inherent rights and establish[ing] the
rights and duties as to the child’s custody . . . in accordance with this act.”64
At the outset, we note that the Child Custody Act is consistent with the notion that
a child may have only a single domicile at any given point in time. Nowhere does the
Child Custody Act indicate that a child may have dual domiciles, as Farm Bureau
suggests. Rather, while the Child Custody Act permits a child to have a “legal residence
with each parent,” that language serves merely as an acknowledgment that a child may
have more than one residence.65 Absent an express indication that the Legislature
intended a different result, we will not presume that the Legislature intended to modify
the common-law rule applicable to children and adults alike that a person may have only
a single domicile at a given point in time.66
64
MCL 722.24(1).
65
See MCL 722.31, which pertains to the requirements necessary to change a child’s
residence, and provides in part that “[a] child whose parental custody is governed by
court order has, for the purposes of this section, a legal residence with each parent.”
Notably, the caselaw addressing disputes related to motions for a change of residency
also interchangeably describe these motions as motions for a change of domicile. See
Rains v Rains, 301 Mich App ___; ___ NW2d ___ (2013); McKimmy v Melling, 291
Mich App 577, 580-582; 805 NW2d 615 (2011). The courts loose use of the terms
“residency” and “domicile” in the context of motions to change residency under MCL
722.31, however, has no impact on the Legislature’s express decision to use the term
“residence,” as opposed to domicile, and does not inform the meaning of the Child
Custody Act.
66
See Const 1963, art 3, § 7 (indicating that the common law remains in force until it is
“changed, amended or repealed”); see also Dawe v Dr Reuven Bar-Levav & Assocs, PC,
29
However, no provision of the Child Custody Act expressly provides that an order
establishing custody or domicile is conclusive evidence of a child’s domicile for purposes
of the no-fault act or otherwise. Moreover, the Act allows for myriad possible scenarios
in postdivorce familial relationships, recognizing different combinations of legal and
physical custody, and offering flexibility in terms of parenting time arrangements.67
Ultimately though, we believe that the Child Custody Act and related court rules lend
further support to the conclusion that a child’s domicile is established by a custody
determination of the family court because that entity is the single entity entrusted by our
laws with the capacity to determine domicile under these circumstances.
Once a custody order is entered pursuant to a judgment of divorce or otherwise,
that custody order is legally binding on the parents and the order cannot be modified
absent court approval or compliance with the applicable provisions of the Child Custody
485 Mich 20, 28; 780 NW2d 272 (2010) (“[T]he Legislature ‘should speak in no
uncertain terms’ when it exercises its authority to modify the common law.”).
67
For example, MCL 722.26a recognizes the possibility of “joint custody,” which may
consist of either joint physical custody or joint legal custody or both joint physical and
legal custody. MCL 722.26a(7) defines “joint custody” to mean
an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with
each of the parents.
(b) That the parents shall share decision-making authority as to the
important decisions affecting the welfare of the child.
“Although not specifically designated in the statute, the custody described in [MCL
722.26a(7)(a)] is commonly referred to as joint physical custody, and that described in
[MCL 722.26a(7)(b)] is referred to as joint legal custody.” Dailey v Kloenhamer, 291
Mich App 660, 670; 811 NW2d 501 (2011).
30
Act.68 Because parents are legally bound by the terms of the custody order, the order
therefore negates the parents’ legal capacity, which is necessary to establish a domicile of
choice for the minor child that is different from that established in the custody order.
Specific provisions of the Child Custody Act support the notion that a parent’s ultra vires
acts do not, as a matter of law, effect a change in a child’s court-ordered domicile: If a
parent wishes to modify a custody order, the Act requires a parent to move for
modification of the custody order and to demonstrate a proper cause or change of
circumstances related to the established custodial environment.69 And, in the instance
that a parent seeks to change the child’s legal residence, the parent is prohibited from
moving a child across state lines without court approval and, in some situations, is
prohibited from moving the child more than 100 miles without prior court approval.70
68
See Harvey v Harvey, 470 Mich 186, 194; 680 NW2d 835 (2004) (indicating that
custody orders are binding once entered by court order); Brausch v Brausch, 283 Mich
App 339, 354; 770 NW2d 77 (2009) (indicating that a family court’s custody order is
valid and binding for all purposes until properly set aside or otherwise modified).
69
See MCL 722.27(1)(c), which indicates that a family court may “modify or amend its
previous judgments or orders for proper cause shown or because of change of
circumstances until the child reaches 18 years of age . . . [and that the] court shall not . . .
change the established custodial environment of a child unless there is presented clear
and convincing evidence that it is in the best interest of the child.”
70
See MCL 722.31, which provides in relevant part:
(1) A child whose parental custody is governed by court order has,
for the purposes of this section, a legal residence with each parent. 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.
31
Therefore, that parents are legally bound by custody orders mandates the conclusion that
a child’s domicile is established by the court order as a matter of law.71
We thus believe that our prior conclusion—that in the instance where a child’s
parents are divorced, the family court’s custody order entered pursuant to the Child
Custody Act establishes the child’s domicile by operation of law and is determinative of
the child’s domicile for purposes of the no-fault act—is consistent with the Child
(2) A parent’s change of a child’s legal residence is not restricted by
subsection (1) if the other parent consents to, or if the court, after
complying with subsection (4), permits, the residence change. This section
does not apply if the order governing the child’s custody grants sole legal
custody to 1 of the child’s parents.
See also MCR 3.211(C)(3), which provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from
Michigan without the approval of the judge who awarded custody or the
judge’s successor,* * *
(3) a parent whose custody or parenting time of a child is governed by the
order shall not change the legal residence of the child except in compliance
with section 11 of the Child Custody Act, MCL 722.31.
71
The concurrence acknowledges that parents are legally bound by custody orders, but
then concludes that parents retain the ability to establish a minor child’s domicile in
contravention of a custody order. This reasoning—and the rebuttable presumption test
that stems from it—departs from established principles of Michigan’s domiciliary
common law and statutory law and, instead, is based on the concern that domicile
dictated by a custody order may not be aligned with the minor child’s actual living
arrangements. This approach is not supportable in our law and we decline to give legal
effect to the fact that a child’s living situation may not be consistent with the custody
order.
32
Custody Act itself.72 This holding gives the best effect to the provisions of the Child
Custody Act, which entrusts courts with making custody determinations in a child’s “best
interests,” including those related to living arrangements. Any contrary rule could foster
noncompliance with custody orders entered under the Child Custody Act by implicitly
sanctioning conduct that might establish a minor child’s domicile in contravention of a
controlling custody order. Instead, adherence to the rule that the custody order controls
the determination of a minor child’s domicile encourages compliance with legally
binding court orders and statutory law.
Therefore, courts presiding over an insurance coverage dispute involving the
minor child of divorced parents must treat a custody order as conclusive evidence of a
child’s domicile.73 Where a court order sets a child’s custody or domicile by operation of
law, the factual circumstances or the parents’ or child’s intentions are irrelevant to the
domicile determination.74 Rather, the appropriate analysis is focused on the terms of the
72
We recognize that parents often reach informal agreements concerning custody matters
or, having established a formal arrangement through court order, may through mutual
agreement decide to deviate from that arrangement such that a child’s living situation is
not aligned with the custody order. Our holding does not, in reality, restrict parents in
their ability to address custody arrangements in these regards, but courts should be
cognizant that parents’ informal modifications to the custody arrangement established in
a custody order have no effect on a child’s domicile.
73
Despite this clear directive, the concurrence argues that our holding injects uncertainty
into the realm of no-fault law. We believe that it is the concurrence’s rebuttable
presumption test that would create uncertainty because it would require insurers to
evaluate parents’ claims of domicile or leave an insurer guessing regarding its risk of
exposure to liability.
74
A domicile set by operation of law—for example, by court order—obviates the need to
engage in an analysis of the Workman-Dairyland factors, which were designed to help
determine a person’s domicile when it was an open or contested question.
33
custody order. In directing courts to abide by the custody order, we are cognizant that the
Child Custody Act draws a distinction between physical custody and legal custody:
Physical custody pertains to where the child shall physically “reside,” whereas legal
custody is understood to mean decision-making authority as to important decisions
affecting the child’s welfare.75 Because the focus under our common law with respect to
domicile mostly concerns a question of location and the same is true with respect to a
child’s domicile in the instance that the parents are divorced,76 the relevant consideration
is which parent has physical custody under the terms of the order.77 By way of example,
a child’s domicile will be with a parent if the custody order grants that parent primary or
sole physical custody, or expressly establishes domicile with that parent through a
domicile provision, regardless of whether the parents share joint legal custody.78
75
Compare MCL 722.26a(7)(a) (physical custody) with MCL 722.26a(7)(b) (legal
custody).
76
See In re Volk, 254 Mich at 31-32, which determined that a child’s domicile was with
that parent who had been given physical custody of the child.
77
We recognize that a custody order may allow for reasonable or flexible parenting time.
However, the physical-custody inquiry, which governs the domicile determination,
has to do with the child’s primary physical location under the express terms of the
custody order and not with how the order allots “parenting time.” Indeed, by allowing
for reasonable or flexible parenting time in a custody order, a family court has not
relinquished its authority to establish the physical custody of the minor child.
78
Although not presently before this Court, we recognize that determining domicile by
reference to a custody order may appear to lead to a perplexing result where the order
grants each parent joint physical custody under MCL 722.26a(7) and creates an equal
50/50 division of physical custody. To begin with, we emphasize that an award of joint
physical custody alone does not automatically create this potentially perplexing situation
because although an order may award joint physical custody, it may also establish that
one parent has primary physical custody. Alternatively, the details of the physical
custody division may reveal that one parent has physical custody of the child more often
34
C. APPLICATION
i. GRANGE v LAWRENCE
When the family court entered the 2005 judgment of divorce between Lawrence
and Rosinski, their child Josalyn acquired a domicile by operation of law consistent with
the terms of the judgment of divorce. Specifically, the order granted Lawrence and
Rosinski joint legal custody, while Rosinski was granted primary physical custody and
Lawrence liberal parenting time. Because the order granted Rosinski primary physical
custody, Josalyn’s domicile was with Rosinski. So long as Josalyn lacked the legal
capacity to acquire a new domicile of choice and neither of her parents successfully
moved to modify the order through a motion to change custody or residence under MCL
722.27 or MCL 722.31 in a family court of continuing jurisdiction, Josalyn’s domicile
would remain with Rosinski pursuant to the terms of the judgment of divorce.
than the other parent despite the joint physical custody arrangement. Thus, it is only in
the very rare event that a custody order awards joint physical custody and grants both
parents an equal amount of time to exercise physical custody that this issue arises.
Indeed, MCL 722.26a(7) does not require that parents share equal physical custodial time
for a court to award joint physical custody; rather, [MCL 722.26a(7)(a)] merely defines
joint physical custody as an order “[t]hat the child shall reside alternately for specific
periods with each of the parents.” Emphasis added. The statute does not, however,
require that the child reside with each parent for an equal amount of time to constitute
joint physical custody.
In the unusual event that a custody order does grant an equal division of physical custody,
and only in this instance, then the child’s domicile would alternate between the parents so
as to be the same as that of the parent with whom he is living at the time. Restatement,
§ 22 (1971). Thus, the child’s domicile is with the parent who has physical custody as
established by the custody order at the specific time of the incident at issue. This
approach is consistent with the terms of the custody order and avoids a finding that the
child has dual coexisting domiciles. Such a rule is consistent with In re Volk and retains
our traditional understanding that a person can only have one domicile at a time.
35
At the time of the accident in 2009 the judgment of divorce had never been
modified pursuant to the provisions of the Child Custody Act. Nor had Josalyn reached
the age of majority or become emancipated, such that she could acquire a different
domicile of her own choosing. Therefore, at the time of the accident, Josalyn’s domicile
was with Rosinski pursuant to the terms of the judgment of divorce. In reaching the
contrary conclusion that Josalyn was domiciled with both parents, the lower courts erred
by concluding that a person could have dual domiciles, erred by failing to recognize the
legal effect of the family court’s custody order, and erred by applying the Workman
factors that are inapplicable to a person whose domicile is set by operation of law.
Therefore, because Josalyn can only have one domicile, it follows that she was not
domiciled with Lawrence, Grange’s insured. The terms of the judgment of divorce
provide conclusive evidence of Josalyn’s domicile and, there being no ambiguity in that
order, there is no question of fact that Josalyn was domiciled in Rosinski’s household. It
further follows that because Josalyn was not domiciled with Lawrence, Grange is not
liable for Josalyn’s PIP benefits under MCL 500.3114(1). For this same reason, Grange
is not an insurer of equal priority with Farm Bureau and, thus, Grange is not required to
reimburse Farm Bureau under MCL 500.3115(2) for the PIP benefits it paid for Josalyn’s
care following her accident.79 The lower courts therefore erred by denying Grange
summary disposition.
79
Given our holding that a custody determination of a minor child governs domicile,
Farm Bureau’s argument that Grange’s policy conflicts with the no-fault act is
unavailing. Recall that the pertinent portion of Grange’s policy states: “If a court has
adjudicated that one parent is the custodial parent, that adjudication shall be conclusive
with respect to the minor child’s principal residence.” This provision is plainly consistent
36
ii. ACIA v STATE FARM
In ACIA, the 1995 judgment of divorce granted Taylor and Campanelli joint legal
custody, Campanelli primary physical custody, and, in an express domicile provision,
established Sarah’s domicile in Michigan with Campanelli. Upon entry of this order,
Sarah’s domicile was established by operation of law and her parents no longer had the
legal capacity to establish a different domicile of choice on Sarah’s behalf, and nor could
Sarah, not having reached the age of majority and not being emancipated, acquire a new
domicile of her own choosing. Campanelli, however, successfully moved for a change of
residency in 1996 and the family court entered an order modifying the judgment of
divorce by changing Sarah’s domicile to Tennessee. Taylor and Campanelli retained
joint legal custody and Campanelli retained primary physical custody. Sarah’s domicile,
then, was changed by operation of law to Tennessee upon entry of the 1996 order.
There is no dispute that the 1996 order expressly establishing Sarah’s domicile in
Tennessee remained in effect at the time of the accident in 2007, when Sarah was only 16
years of age. Although Sarah was then residing with her mother in Michigan, Sarah was
domiciled in Tennessee at the time of the accident as established by the 1996 order.
There being no question of fact as to Sarah’s domicile in Tennessee, it is clear that ACIA,
the insurer of the Michigan household, is not liable for Sarah’s PIP benefits under MCL
500.3114(1). Instead, State Farm is the insurer in first priority to pay PIP benefits, and
the lower courts thus erred by denying ACIA summary disposition.
with our holding and does not, as the Court of Appeals held, restrict coverage that
otherwise would have been permitted under the no-fault act.
37
IV. CONCLUSION
It has long been established in our common law that a person, including a child,
may have only a single domicile at any one time. We reaffirm this principle and hold that
a child of divorced parents who may have more than one legal residence, nevertheless
still has only one domicile at a given point in time, including for purposes of the no-fault
act. In the instance that the child’s parents are divorced and a family court has entered an
order relating to custody, we hold, consistent with our common law and the Child
Custody Act, that the child’s domicile is established by operation of law and that the
custody order is determinative of the child’s domicile for purposes of the no-fault act.
In Grange, the judgment of divorce conclusively established the minor child’s
domicile with her mother at the time of the accident and, thus, Grange is not liable for
providing PIP benefits following the child’s automobile accident. Accordingly, we
reverse the judgment of the Court of Appeals in Grange and we remand to the circuit
court for entry of summary disposition in favor of Grange.
In ACIA, the custody order conclusively established the minor child’s domicile
with her father at the time of the accident and, thus, ACIA is not liable for providing PIP
benefits following the child’s automobile accident. We thus reverse the judgment of the
Court of Appeals and we remand to the circuit court for entry of summary disposition in
favor of ACIA.
Mary Beth Kelly
Robert P. Young, Jr.
Michael F. Cavanagh
David F. Viviano
38
STATE OF MICHIGAN
SUPREME COURT
GRANGE INSURANCE COMPANY OF
MICHIGAN,
Plaintiff/Counterdefendant-
Appellant,
v No. 145206
EDWARD LAWRENCE, Individually and
Joint Personal Representative of the Estate of
Josalyn A. Lawrence, and LAURA
ROSINSKI, Individually and Joint Personal
Representative of the Estate of Josalyn A.
Lawrence,
Defendants-Appellees,
and
FARM BUREAU GENERAL INSURANCE
COMPANY OF MICHIGAN,
Defendant/Counterplaintiff-
Appellee.
AUTOMOBILE CLUB INSURANCE
ASSOCIATION,
Plaintiff-Appellee/Cross-
Appellant,
v No. 143808
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant-Appellant/Cross-
Appellee,
and
ALLSTATE INSURANCE COMPANY,
Defendant.
ZAHRA, J. (concurring).
I concur in the result reached by the majority in these cases. I also agree with the
majority that a person, including a minor child, can have only one domicile at any given
time. I disagree, however, with the rule the majority has adopted for determining the
domicile of a child with two legal residences under the Child Custody Act1 for several
reasons. The majority holds that the domicile of a child with two legal residences is
necessarily equated with a family court order establishing physical custody of that child,
regardless of whether the parents in fact follow the family court’s order. Although this
rule appears to have the benefit of reaffirming the legally binding nature of a custody
order, such a perfunctory rule falls far short of addressing the practical realities of post-
divorce familial relationships.
The majority assumes that physical custody orders are the same as domicile
determinations as a matter of law.2 I question this assumption. Instead, I believe the
Child Custody Act grants the family court the authority to establish the custodial
1
MCL 722.21 et seq.
2
The majority is equating physical custody with domicile by operation of law, despite the
fact that a child whose parents share, at a minimum, joint legal custody has a legal
residence with each parent. While in the overwhelming number of cases it may turn out
that a child’s domicile is the same as that indicated by the custody order, in my view, a
custody order does not have the effect of creating domicile, instead it creates the
custodial environment from which domicile can be established. See part I(C).
2
environment(s) of the child or children subject to that order. It is from this custodial
environment that the legal determination of domicile can be made.
I also disagree that a family court order of joint physical custody can establish an
alternating domicile system, whereby the minor child’s domicile is wherever the custody
order indicates the child is supposed to be. Such a system is a semantic end-run around
our traditional rule that a person may only have one domicile and ignores the practical
reality that in virtually all cases, a child will have a primary residence that will constitute
the child’s domicile.
I conclude that the majority’s rule unduly impinges on the ability of an insurer to
accurately assess its risks when entering insurance agreements and places an
unreasonable burden on insurers to inquire about, obtain, and interpret family court
orders. This is because the majority rule places no-fault personal protection insurance
(PIP) liability on the insurer of the parent who has been ordered physical custody, even
when the child is not primarily living with that parent. The majority’s rule, in my view,
is inconsistent with the no-fault act, which provides PIP protection for “accidental bodily
injury to the person named in the policy, the person’s spouse, and a relative of either
domiciled in the same household . . . .3
It is an undeniable fact that parents involved in custody disputes often reach an
agreement between themselves to provide for a different custodial environment than that
provided in the family court’s initial order of custody. I would adopt a rule that
recognizes this reality. Specifically, I would conclude that family court orders of custody
3
MCL 500.3114(1) (emphasis added).
3
establish a presumption of domicile that may be rebutted when the child’s actual living
arrangements are so clearly inconsistent with the family court’s custody order that it is
reasonable to conclude that the parents have expressly or impliedly reached an agreement
regarding the child’s domicile. To rebut this presumption, I would require courts to
consider the factors traditionally used to assess domicile to determine the domicile of
minor children.4
Thus, in Grange, I conclude that the presumption of domicile created by the
family court’s judgment of divorce is not rebutted under the facts of this case and,
consistent with the majority, I would reverse the judgment of the Court of Appeals and
remand to the circuit court for entry of summary disposition in favor of Grange. In ACIA,
I conclude that the Court of Appeals erred by finding a question of fact regarding the
child’s domicile. Reviewing the record as a whole, I conclude that the evidence did not
rebut the presumption, created by the family court’s orders, that the child was domiciled
in Tennessee. Consistent with the majority, I would reverse the judgment of the Court of
Appeals and remand to the circuit court for entry of summary disposition in favor of
ACIA.
4
Notwithstanding all the good intentions behind a court order establishing joint custody,
the reality remains that there is but one domicile for a minor child. As explained more
fully in this opinion, see part I(F), factors such as where the child goes to school, where
the majority of the child’s belongings are kept, and the address used to register the child
for functions will assist a fact-finder in making a domicile determination.
4
I. ANALYSIS
A. DOMICILE GENERALLY
A person’s domicile is significant in a variety of legal contexts,5 and it is a concept
with deep roots in Michigan law.6 This Court stated in 1847 that it is “well settled that no
person can have more than one [national] domicile, at one and the same time . . . .”7 This
Court has recently reiterated that a person may have only one domicile, and “a domicile
is ‘the place where a person has his home, with no present intention of removing, and to
which he intends to return after going elsewhere for a longer or shorter time.’”8
Generally, domicile is “a question of fact and intent[,]” and a determination of domicile
involves looking at all the facts and circumstances to determine whether the evidence that
a person is domiciled in one location outweighs the evidence that a person is domiciled in
another location.9
5
See, e.g., People v Dowdy, 489 Mich 373, 376; 802 NW2d 239 (2011) (addressing
“whether homeless sex offenders have a ‘residence’ or ‘domicile’ such that they can
comply” with the Sex Offenders Registration Act); In re Servaas, 484 Mich 634, 642;
774 NW2d 46 (2009) (discussing Const 1963, art 6, § 20, which requires a judge or
justice to vacate his or her office if he or she “removes his domicile beyond the limits of
the territory from which he was elected or appointed . . . .”).
6
See In re High, 2 Doug 515, 522 (1847) (“It may be laid down as a settled maxim that
every man must have such a national domicile somewhere.”).
7
Id.
8
Dowdy, 489 Mich at 385, quoting Hartzler v Radeka, 265 Mich 451, 452; 251 NW 554(1933).
9
As stated by this Court in In re High, 2 Doug at 523-524:
[Domicile] is always that place which has more of the qualities of a
principal or permanent residence, and more pretensions to be considered as
such, than any other place. Two things, it is said, must concur to constitute
5
As observed by the majority, there are three means of acquiring a domicile,
depending on the factual context: “(1) domicile of origin or of nativity; (2) domicile of
choice; and (3) domicile by operation of law.”10 In Miss Band of Choctaw Indians v
Holyfield, the Supreme Court of the United States discussed the concept of domicile,
drawing on “common-law principles of domicile” and explaining:
“Domicile” is, of course, a concept widely used in both federal and
state courts for jurisdiction and conflict-of-laws purposes, and its meaning
is generally uncontroverted. “Domicile” is not necessarily synonymous
with “residence,” and one can reside in one place but be domiciled in
another. For adults, domicile is established by physical presence in a place
in connection with a certain state of mind concerning one’s intent to remain
there. One acquires a “domicile of origin” at birth, and that domicile
continues until a new one (a “domicile of choice”) is acquired. Since most
minors are legally incapable of forming the requisite intent to establish a
domicile, their domicile is determined by that of their parents.[11]
Domicile by operation of law occurs when a person lacks the capacity to establish a
domicile by choice.12 Therefore, because a minor child typically cannot form the
domicile. First, residence, which however is not indispensable to retain
domicile after it has been once acquired; and, secondly, intention of making
it the home of the party: Story’s Confl. Laws, § 44. The question of
domicile, is then, a question of fact and intent, and if these elements are
found, the reference of the domicile to one place or another depends upon
the comparative weight of the circumstances. In the language of the chief
justice, in Abington v. North Bridgewater, 23 Pick., 178, “it depends, not
upon proving particular facts, but whether all the facts and circumstances
taken together, tending to show that a man has his home or domicile in one
place, overbalance all the like proofs tending to establish it in another.
10
8 Mich Civ Jur, Domicile, § 1.
11
Miss Band of Choctaw Indians v Holyfield, 490 US 30, 48; 109 S Ct 1597; 104 L Ed 2d
29 (1996) (citations omitted).
12
8 Mich Civ Jur, Domicile, § 5.
6
requisite intent to establish a domicile by choice, a minor child’s domicile is determined,
by operation of law, by the domicile of the child’s parents.13 One’s domicile of origin is
the starting point, and it remains a person’s domicile until that domicile is usurped by a
subsequent domicile attained by choice or by operation of law.14 Where a child’s parents
have changed their own domicile, the domicile of the child likewise changes by operation
of law.15 However, these common law notions of domicile do not resolve the question of
13
Miss Band of Choctaw Indians, 490 US at 48. See 8 Mich Civ Jur, Domicile, § 21
(“Everyone is assigned a domicile of origin at birth by operation of law.”) (emphasis
added). But note, when a minor child has been emancipated, he or she may establish a
domicile by choice. See MCL 722.4e(1)(d), which provides: “A minor emancipated by
operation of law or by court order shall be considered to have the rights and
responsibilities of an adult . . . . A minor shall be considered emancipated for the
purposes of, but not limited to, . . . [t]he right to establish a separate domicile.”
14
Specifically, “[t]he domicil[e] of origin is the domicil[e] which a person has at birth[,]”
and “[t]he domicil[e] of a legitimate child at birth is the domicil[e] of its father at that
time, subject to the rule stated in § 22 pertaining to divorce or separation of the parents.
If the child is not the legitimate child of its father, or is born after the father’s death, its
domicile at birth is the domicil[e] of its mother at that time.” Restatement Conflict of
Laws, 2d, § 14(2), p 59. The domicile of origin “continues until a new domicile is
acquired.” Id. at comment b.
15
See Hering v Mosher, 144 Mich 152, 154, 155; 107 NW 917 (1906), in which this
Court stated, “We accept the doctrine, as a general proposition, that the domicile of a
child is that of its origin, or of its last surviving parent[,]” and “If [the child’s father]
gained a domicile [in Wayne County], conceding the general rule to apply, it became in
law the domicile of this child.” This Court also recognized in Hering that “[a] parent
may give his child domicile different from his own by consenting to its adoption; that he
may do so by less formal proceedings we consider equally permissible.” Id. at 156.
7
where a child is domiciled when the child’s parents share, at a minimum,16 joint legal
custody such that the child has two legal residences pursuant to the Child Custody Act.17
B. DOMICILE AS IT RELATES TO THE MICHIGAN NO-FAULT ACT
Pursuant to MCL 500.3114(1), the no-fault act provides PIP protection for
“accidental bodily injury to the person named in the policy, the person’s spouse, and a
relative of either domiciled in the same household . . . .” Generally speaking, domicile
determinations for purposes of assessing insurer liability in the no-fault context are made
by considering the factual circumstances surrounding the party’s living situation and by
balancing and weighing several factors, none of which is determinative on its own.18 A
non-exhaustive list of factors for determining whether a person is “domiciled in the same
household” under the no-fault act was articulated by this Court in Workman:
Among the relevant factors are the following: (1) the subjective or
declared intent of the person of remaining, either permanently or for an
indefinite or unlimited length of time, in the place he contends is his
“domicile” or “household”; (2) the formality or informality of the
relationship between the person and the members of the household; (3)
whether the place where the person lives is in the same house, within the
same curtilage or upon the same premises; (4) the existence of another
place of lodging by the person alleging “residence” or “domicile” in the
household.[19]
16
Even when a family court order awards physical custody primarily or exclusively to
one parent, the Legislature has determined that where joint legal custody exists, the minor
child has a legal residence with each parent. MCL 722.31. See also part I(C).
17
See part I(E).
18
Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 496; 274 NW2d 373 (1979).
19
Id. at 496-497 (citations omitted).
8
To address “the particular problems posed by young people departing from the
parents’ home and establishing new domiciles as part of the normal transition to
adulthood and independence[,]”20 the Court of Appeals has considered whether a child of
majority age is “domiciled” with the child’s parents in several cases.21 In the first of
these cases, Dairyland, the Court of Appeals laid out additional relevant factors for
determining whether a child is domiciled with his or her parents:
[(1)] whether the claimant continues to use his parents’ home as his
mailing address, [(2)] whether he maintains some possessions with his
parents, [(3)] whether he uses his parents’ address on his driver’s license or
other documents, [(4)] whether a room is maintained for the claimant at the
parents’ home, and [(5)] whether the claimant is dependent upon the
parents for support.[22]
However, this Court has not yet addressed where a minor child is “domiciled” for
purposes of no-fault insurance when the child’s parents maintain two separate
households, which both constitute a legal residence of the child pursuant to the Child
Custody Act.23 Because domestic relations law and the Child Custody Act are implicated
in this no-fault context, it is appropriate to review the law regarding child custody.
20
Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 681; 333 NW2d 322
(1983).
21
See, e.g., Fowler v Auto Club Ins Ass’n, 254 Mich App 362; 656 NW2d 856 (2002);
Goldstein v Progressive Cas Ins Co, 218 Mich App 105; 553 NW2d 353 (1996) (noting
that the injured child, who was a student attending college out of state from his parents’
residence, with no specific age provided, was domiciled with his parents, not at the
college).
22
Dairyland, 123 Mich App at 682.
23
MCL 722.31(1).
9
C. CUSTODY DETERMINATIONS
Under the Child Custody Act, until a child turns 18, the family court has
jurisdiction to make child custody determinations when there is a child custody dispute.24
The Child Custody Act provides, in pertinent part:
(1) If a child custody dispute has been submitted to the circuit court
as an original action under this act or has arisen incidentally from another
action in the circuit court or an order or judgment of the circuit court, for
the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties
involved or to others and provide for payment of support for the child, until
the child reaches 18 years of age. . . .[25]
The Child Custody Act first provided for joint custody in 1981.26 MCL 722.26a requires
the family court to advise parents of joint custody and, upon request of either parent, to
consider awarding joint custody of a child. “Joint custody” is defined as:
. . . an order of the court in which 1 or both of the following is
specified:
(a) That the child shall reside alternately for specific periods with
each of the parents[, or]
(b) That the parents shall share decision-making authority as to the
important decisions affecting the welfare of the child.[][27]
Although not specifically named as such by the statute, “the custody described in [(a)] is
commonly referred to as joint physical custody, and that described in [(b)] is referred to
24
MCL 722.27.
25
MCL 722.27(1)(a).
26
MCL 722.26a.
27
MCL 722.26a(7).
10
as joint legal custody.”28 Therefore, a family court may grant (1) “legal custody” to one
or both parents and (2) “physical custody” solely to one parent or jointly to both, which
would involve the child “resid[ing] alternately for specific periods with each of the
parents.”29
Under MCL 722.31, where the parents of a child share joint legal custody and
parental custody of that child is governed by a court order, the child is considered to have
a legal residence with each parent for purposes of evaluating a parent’s action to change
the child’s legal residence.30
28
Dailey v Kloenhamer, 291 Mich App 660, 670; 811 NW2d 501 (2011).
29
MCL 722.26a(7)(a).
30
MCL 722.31 provides, in part:
(1) A child whose parental custody is governed by court order has,
for the purposes of this section, a legal residence with each parent. 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.
(2) A parent’s change of a child’s legal residence is not restricted by
subsection (1) if the other parent consents to, or if the court . . . permits, the
residence change. This section does not apply if the order governing the
child’s custody grants sole legal custody to 1 of the child’s parents. . . .
Actions of a parent pursuant to MCL 722.31 are commonly referred to as petitions to
change domicile, despite MCL 722.31’s use of the term “residence.” See, e.g., McKimmy
v Melling, 291 Mich App 577, 580-582; 805 NW2d 615 (2011) (discussing change of
domicile and change of legal residence interchangeably). It is significant that while the
Legislature chose to focus on “legal residence,” some practitioners and courts apparently
colloquially use the term “domicile.”
11
D. A MINOR CHILD MAY NOT HAVE DUAL DOMICILES
Complications arise in determining the domicile of a child for purposes of no-fault
insurance where the child has two legal residences because his or her parents share legal
custody. The trial court and the Court of Appeals both reached the extraordinary
conclusion in Grange that Josalyn had two domiciles: one with Rosinski and one with
Lawrence. This conclusion departs from established Michigan law that a person may
have only one domicile.31 I join the majority in reaffirming this long-standing principle.
Further, I agree with the majority’s conclusion that Workman32 “does not stand for the
proposition that domicile is the equivalent of residence under MCL 500.3114(1).”33
As this Court stated in Gluc v Klein:
Under the common law, there was a distinction between “domicile”
and “residence.” The former, in its ordinary acceptation, was defined to be,
“A place where a person lives or has his home,” while “Any place of abode
or dwelling place,” however temporary it might have been, was said to
constitute a residence. A person’s domicile was his legal residence or
home in contemplation of law.[34]
While “residence” may be defined in more restrictive ways under Michigan law,35 for
example, “legal residence” as discussed in Gluc, the underlying distinction between the
31
Dowdy, 489 Mich at 385; In re High, 2 Doug at 522.
32
Workman, 404 Mich at 495 (stating “the terms ‘domicile’ and ‘residence’ are legally
synonymous”).
33
Ante at 20.
34
Gluc v Klein, 226 Mich 175, 177-178; 197 NW 691 (1924) (emphasis added).
35
See, e.g., Dowdy, 489 Mich at 382, where this Court noted that the Legislature chose to
define the word “residence” as used in the Sex Offender Registry Act to mean
12
concepts of domicile and residence remains: while a person may have only one domicile,
he or she may have more than one residence. And while legal residence is often equated
with domicile, because there can be only one domicile, where two legal residences exist,
it is axiomatic that only one can be determined to be the domicile. The fact that a
domicile determination is complicated by the factual circumstances of the inquiry does
not constitute a sound reason to depart from the established principle that a person can
have only one domicile. Therefore, even where a child is considered to have a legal
residence with each parent, his or her domicile must be that of only one of the child’s
parents.
E. THE MAJORITY’S DOMICILE BY OPERATION OF LAW APPROACH
The majority attempts to extend the common-law doctrine of domicile by
operation of law beyond its logical and practical bounds. I agree with the majority that
unemancipated minor children cannot establish a domicile by choice, given that they are
incapable of forming the requisite intent.36 But domicile by operation of law, the means
by which unemancipated minors acquire the domicile of their parents, is not easily
determined when parents share joint legal custody, given that joint legal custody creates
that place at which a person habitually sleeps, keeps his or her personal
effects, and has a regular place of lodging. If a person has more than 1
residence, or if a wife has a residence separate from that of the husband,
that place at which the person resides the greater part of the time shall be
his or her official residence for purposes of this act. [Quotation marks and
citation omitted.]
36
Miss Band of Choctaw Indians, 490 US at 48.
13
two legal residences for the child, either of which could constitute the child’s domicile.37
While the domicile-by-operation-of-law framework indicates that there are two potential
residences where a child could be considered domiciled in this context, given that there
can only be one domicile, it stops short of answering, “Which legal residence constitutes
the child’s domicile?”
Despite the fact that the majority and I agree that a child may only have one
domicile at any given time, the majority’s alternating-domicile theory for children whose
parents share joint physical custody contradicts this long-standing principle and in
substance permits dual domiciles for such children. This alternating-domicile concept is
unprecedented in the domicile jurisprudence of this state, which views domicile as that
place where a person ultimately returns, despite going elsewhere for a period of time.38
As the majority states, “For over 165 years, Michigan courts have defined ‘domicile’ to
mean ‘the place where a person has his true, fixed, permanent home, and principal
37
MCL 722.31(1). The general rule is that “[a] child’s domicile, in the case of the
divorce or separation of his parents, is the same as that of the parent to whose custody he
has been legally given.” Restatement Conflicts of Laws, 2d, § 22, comment d. However,
this rule is unhelpful where legal custody has been given jointly to both parents. See also
In re Volk, 254 Mich 25, 32; 235 NW 854 (1931), overruled in part on other grounds by
Hentz v Hentz, 371 Mich 335 (1963), in which this Court concluded that a child whose
mother was given unrestricted custody of her minor child pursuant to a judgment of
divorce was domiciled with the child’s mother, quoting 9 RCL, p 549, which stated,
“When a divorce has been granted to the wife, however, and unrestricted custody of the
minor child of the marriage given her in the decree, her own domicile, and not the
father’s, establishes that of the child.” However, in the cases at issue, unlike Volk, the
parents shared joint legal custody. Neither parent in either of the present cases was
granted unrestricted custody, as in Volk. Therefore, I question the majority’s reliance on
this case.
38
In re High, 2 Doug at 522-523.
14
establishment, and to which, whenever he is absent, he has the intention of returning.’”39
The fact that a child cannot establish a domicile by choice is not a sufficient reason to
ignore that permanence underpins the concept of domicile in our jurisprudence.40
Further, the majority opinion assumes that a custody order establishes domicile as
a matter of law. While a family court’s orders pertaining to custody and the legal
residence of a child, if implemented, can certainly establish custodial environments from
which a domicile arises and, thus, a legal determination of domicile can be made, I
question whether the family court has the authority under the Child Custody Act to
explicitly set a child’s domicile by court order. The Child Custody Act speaks in terms
of “legal residence” and only uses the word “domicile” in one section of the statute, MCL
722.27b(9), which states:
The court shall not enter an order prohibiting an individual who has
legal custody of a child from changing the domicile of the child if the
prohibition is primarily for the purpose of allowing a grandparent to
exercise the rights conferred in a grandparenting time order entered under
this section.
Significantly, the use of “domicile” in this section does not suggest that family courts
have the authority to establish, as a matter of law, a child’s domicile in making a custody
determination. Rather, this section assumes a parent has legal custody of a child, and it
39
Ante at 15, quoting In re High, 2 Doug at 523.
40
See In re High, 2 Doug at 522 (“[Domicile] is always that place which has more of the
qualities of a principal or permanent residence, and more pretensions to be considered as
such, than any other place.”).
15
prohibits a court from barring that parent from a change of domicile so that a grandparent
may seek or maintain visitation with the child.
Moreover, the majority rule now requires insurance companies to inquire about
custody orders, obtain a copy of those orders, and interpret those orders to properly assess
its risks,41 which unduly burdens insurers and injects unreasonable uncertainty into an
insurer’s risk-assessment process.42 The majority’s rule prevents an insurer from being
able to simply ask, “Who resides with you?” to assess its risks. Ultimately, the majority’s
rule, in my view, is inconsistent with the no-fault act, which provides PIP protection “to
accidental bodily injury to the person named in the policy, the person’s spouse, and a
relative of either domiciled in the same household . . . .”43 Under the majority’s rule, a
child could be “domiciled” in one state pursuant to a custody order, but actually live in
another state.44 It is difficult to discern how such a situation could constitute being
domiciled in the same household.
41
See Titan Ins Co v Hyten, 491 Mich 547, 570; 817 NW2d 562 (2012) (reaffirming the
principle that “an insurer has no duty to investigate or verify the representations of a
potential insured”).
42
Footnote 77 of the majority’s opinion, which indicates that in situations of joint legal
and physical custody, domicile would alternate consistent with the family court’s orders,
is particularly troubling in this regard.
43
MCL 500.3114(1). Emphasis added.
44
Take, for example, the following hypothetical: A Michigan couple gets divorced, and
the mother and the father are awarded joint legal custody of the couple’s three-year-old
daughter, but mother is awarded sole physical custody. The father moves to Florida
because he cannot find work in Michigan. Ultimately, after several months, the mother
decides she does not want to raise the young child, discusses this with the father, and the
child is sent to live with the father in Florida. The mother and the father do not go back
to court to seek a change in custody in either state. The child gets into a car accident at
16
F. DETERMINATION OF DOMICILE OF CHILDREN WITH TWO LEGAL
RESIDENCES
A domicile determination for a minor child of parents who have separate
domiciles brings with it unique considerations due to the family court’s involvement in
making child custody determinations and the court’s involvement in circumstances where
a change in the legal residence of a child is disputed.45 Like the traditional examination
of a person’s domicile, in my view, the determination of the domicile of a child with two
legal residences requires a review of all the facts and circumstances to determine whether
the evidence that the child is domiciled in one legal residence outweighs the evidence that
the child is domiciled in another legal residence.46 But in light of the family court’s
involvement in determining where a child resides, and the deference owed to that court’s
determinations, an inquiry into where a child is domiciled also necessarily involves
consideration of the family court’s orders relating to custody of a child and a child’s legal
residence(s). While generally no one factor is conclusive in determining domicile,47 in
this unique context, a family court’s custody and residence determinations are the starting
point for determining a child’s domicile because “[a] party must obey an order entered by
a court with proper jurisdiction.”48 Therefore, I would begin with the presumption that
the age of 16 in Florida. Under the majority’s rule, the child would be domiciled in
Michigan, despite living for nearly 13 years in Florida under the exclusive care of her
father.
45
MCL 722.27; MCL 722.31.
46
See In re High, 2 Doug at 522-523.
47
Workman, 404 Mich at 496.
48
Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d 290 (1998).
17
the parties to family court orders relating to custody and residence of the child have in
fact obeyed and implemented those orders.49
Further, custody and residence determinations are made by family courts when
disputes arise between parents.50 A family court’s custody and residence determinations
inform where and with whom the child is supposed to live, sleep, spend his or her time,
and ultimately return, though the child may spend time elsewhere. I would establish a
rule that presumes that these determinations reflect the actual living situation of the child,
and, thus, function as a proxy for the intent of the parents regarding the child’s domicile,
due to the parents’ inability to form a joint parental intent.
Nonetheless, I recognize the reality that, with the passage of time, a child’s living
situation will not always align with the family court’s orders, despite the general rule that
49
See the discussion of presumptions in Johnson v Secretary of State, 406 Mich 420,
432; 280 NW2d 9 (1979), where this Court noted:
The burden of producing evidence is not invariably allocated to the
pleader of the fact to be proved. That burden may be otherwise allocated by
the Legislature or judicial decision based, among other factors, on an
estimate of the probabilities, fairness and special policy considerations, and
similar concerns may justify the creation, judicially or by law, of a
presumption to aid the party who has the burden of production.
See also Juvelis v Snider, 68 F3d 648, 651, 657 (CA 3, 1995) (permitting the domicile by
operation of law conclusion that a “profoundly retarded and physically handicapped 33
year old” is domiciled where his parents were domiciled to be rebutted by (1) “several
objective factors that support the conclusion” that the man had “established a domicile in
Pennsylvania,” (2) the man’s expressed “subjective attachment” to his residence, “within
his limited ability to” express such an attachment, and (3) the fact that his parents acted in
good faith and in the man’s best interest by asserting that the man was domiciled at the
residential home in Pennsylvania).
50
See MCL 722.27(1); MCL 722.31(2).
18
a party must follow the orders of a court. It is common for parents, after the bitterness of
a custody dispute has subsided, to resolve their differences over time and to reach an
agreement regarding the living arrangements for their child.51 Parents commonly reach
amicable, private agreements, reflective of their joint intent, that conflict with an existing
family court order.
Regarding a change in legal residence, the Child Custody Act requires parents to
seek the family court’s approval before moving a child more than 100 miles from his or
her legal residence, unless, among other exceptions, the other parent consents to the
move.52 Regarding a modification of a custody order, however, the Child Custody Act
envisions parents returning to the family court to seek modifications.53 Therefore, while
51
This Court held in Harvey v Harvey, 470 Mich 186, 194; 680 NW2d 835 (2004), that
parties cannot “limit the trial court’s authority to review custody determinations” by
stipulation to a particular custody arrangement. There is no question that if a custody or
legal-residence matter came before the family court, the family court alone is charged
with making determinations in the child’s best interests, and stipulation by the parties to
an alternative custody arrangement cannot usurp that authority. However, this is not the
situation in the cases currently before this Court; the situation in question is one in which
parents, after the entry of a court order regarding custody or legal residence, have not
sought the family court’s subsequent intervention and have amicably chosen, despite the
binding legal nature of the orders, to act in contravention of a family court’s orders. See
also Phillips v Jordan, 241 Mich App 17, 23-24; 614 NW2d 183 (2000) (holding that the
trial court properly set aside a stipulated custody order where “the trial court entered the
stipulated order to change custody without making any independent determination
regarding the best interests of the child pursuant to the Child Custody Act”).
52
MCL 722.31(2).
53
MCL 722.27(1)(c) provides, in part:
If a child custody dispute has been submitted to the circuit court as
an original action under this act or has arisen incidentally from another
action in the circuit court or an order or judgment of the circuit court, for
the best interests of the child the court may] . . .
19
parents have a legal duty to seek the family court’s approval of amicable agreements
regarding custody modifications, this does not always occur. The majority’s view fails to
take this reality into account.
In consideration of these realities, while at the same time recognizing the need for
a rule that fosters consistency, I would hold that, for purposes of determining domicile
under the no-fault act, where the facts regarding the child’s living arrangements are
reasonably consistent with the provisions of the family court’s orders, those orders will
be determinative of the child’s domicile.54 However, where the facts of the child’s living
* * *
(c) Modify or amend its previous judgments or orders for proper
cause shown or because of change of circumstances until the child reaches
18 years of age and, subject to section 5b of the support and parenting time
enforcement act, 1982 PA 295, MCL 552.605b, until the child reaches 19
years and 6 months of age. The court shall not modify or amend its
previous judgments or orders or issue a new order so as to change the
established custodial environment of a child unless there is presented clear
and convincing evidence that it is in the best interest of the child.
54
When family court orders exist, they are, in my view, central to determining the
domicile of a minor child in the no-fault context. But domicile determinations in no-fault
decisions have no effect in family court adjudications regarding a child’s custody and
legal residence. Family courts are charged with making determinations that focus on the
best interests of the child. See MCL 722.27(1) (“If a child custody dispute has been
submitted to the circuit court as an original action under this act or has arisen incidentally
from another action in the circuit court or an order or judgment of the circuit court, for
the best interests of the child the court may do 1 or more of the following[.]”) (emphasis
added); see also MCL 722.31(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[.]”) (emphasis added); Gagnon
v Glowacki, 295 Mich App 557, 570; 815 NW2d 141 (2012) (“After granting a change of
domicile, the trial court must determine whether there will be a change in the established
custodial environment and, if so, determine whether the relocating parent can prove, by
clear and convincing evidence, that the change is in the child’s best interest.”) (emphasis
20
arrangements are so clearly inconsistent with the family court’s orders that it is
reasonable to conclude that the child’s parents have expressly or impliedly reached an
agreement regarding the child’s domicile that differs from the domicile indicated by the
family court’s orders, the presumption of domicile created by the family court’s orders
would be rebutted.55 Under this rule, courts would make domicile determinations in light
added). No-fault decisions regarding insurer priority on the basis of domicile
determinations are inapposite to custody and legal residence determinations in the family
court context because no-fault law focuses on the practical issue of which insurer is liable
for insurance coverage and does not take into consideration the best interests of the child.
Again, I question whether the family court has the authority under the Child Custody Act
to explicitly set a child’s domicile, as opposed to establishing the custodial environment
in which the child will live.
55
The majority approach fails to recognize that a court order may allow parents to modify
the time a child spends with each parent. For example, in Grange the custody order
provides:
IT IS FURTHER ORDERED that the Defendant, EDWARD
BLAINE LAWRENCE, shall have rights of parenting time with the minor
child at the following times:
1. Alternating weekends from Friday at 6p.m. until Sunday at 6 p.m.;
2. Every Wednesday from 4:30 p.m. until 7:30 p.m.[;]
3. Alternating Holidays by mutual agreement . . . ;
4. Any other reasonable times that the parties may agree to[.]
[Emphasis added.]
Under this provision of the order, the parents were free to alter the child’s living
arrangements such that the father could be primarily responsible for the physical custody
of the child. The majority would ignore a subsequent decision by the parents to make the
father the new primary custodian in fact, reasoning that such changes only alter parenting
time and not the domicile. For the reasons stated in this opinion, we believe the better
approach is to make domicile determinations on the basis of the actual living situation of
the child.
21
of the actual facts of the custodial situation, rather than solely on a court order that may
have little relevance to the actual living situation of the child after the passage of time,
namely, with regard to which parent actually has physical custody of the child.56 This
presumption would promote certainty regarding domicile determinations in the no-fault
context,57 maintain the long-standing character of the no-fault domicile inquiry as an
inquiry focused on the actual facts of the situation,58 and afford the appropriate deference
that custody and legal-residence determinations ought to be given outside the domestic
relations context.59
56
It is important to note that while “physical custody” is a term commonly associated
with the custody described in MCL 722.26a(7)(a), this phrase is not defined in the Child
Custody Act. However, MCL 722.1102(n), a provision of the Uniform Child-Custody
Jurisdiction and Enforcement Act, defines “physical custody” as “the physical care and
supervision of a child.”
57
See Citizens Mut Ins Co v Community Servs Ins, 65 Mich App 731, 733; 238 NW2d
182 (1975) (“There is reason for limiting insurance benefits to any relative of the insured
or his spouse to those relatives domiciled in the insured’s household. It creates a definite
limit to the exposure of the insurer, an essential factor in determining the insurance
premium.”) (emphasis added); but see Bierbusse v Farmers Ins Group of Cos, 84 Mich
App 34, 36-38; 269 NW2d 297 (1978) (declining to follow the “hard and fast rule set
forth in Citizens Mutual” because doing so would deny relief to the plaintiff daughter,
holding, “When a couple is separated pending divorce and one spouse is the named
insured on a no-fault policy, the other spouse and the children of the named insured are
covered by the no-fault policy, even though they are domiciled in separate households,
until the divorce is finalized.”). The Court of Appeals in Bierbusse also stated, “While
agreeing that the statute should be interpreted in a manner that allows an insurer to
reasonably calculate the scope of risk and the premium incidental thereto, we do not
believe that a per se rule excluding from coverage any relative not domiciled in the same
household as the named insured is in accord with the legislative intent.” Id. at 37
(emphasis added).
58
Workman, 404 Mich at 496-497; In re High, 2 Doug at 523.
59
The rule I propose is consistent with this Court’s decision in Volk in which the child
was determined to be domiciled with the child’s mother where the mother was given
22
In determining whether this presumption can be rebutted, I would have courts look
to the traditional nonexclusive factors for determining domicile for purposes of no-fault
insurance articulated by this Court in Workman and, particularly, those articulated by the
Court of Appeals in Dairyland, which specifically address whether a child is domiciled
with his or her parents under the no-fault act. While Dairyland involved a child that had
reached the age of majority, I find these factors to be similarly relevant for determining
the intent of a minor child’s parents regarding the child’s domicile because they focus on
objective indicators of the intent to have the child remain permanently in a given home.
Additionally, there are other relevant factors that are unique to the context of minor
children whose parents share joint custody: (1) where the child actually spends the
majority of his or her time, and (2) where the child actually sleeps the majority of the
unrestricted custody. Under my rule, just as under the majority rule, a child whose
mother or father is given sole legal and physical custody, i.e., where one parent has
unrestricted custody, is domiciled with that parent because there is only one legal
residence that can constitute the child’s domicile.
Further, I note that in Vanguard Insurance Co v Racine, 224 Mich App 229, 233;
568 NW2d 156 (1997), the Court of Appeals stated that a person has one domicile and
concluded that the child at issue “would be” domiciled with the child’s mother because
the mother’s home “was where [the child] spent the majority of his time and where [the
child’s mother] had physical custody of [the child] under the divorce judgment.”
However, I note that the Court of Appeals made this statement without fully analyzing
this issue and without providing authority to support its conclusion. Additionally, this
statement of the Court of Appeals cannot fairly be interpreted as indicating that the court
considered the custody determination in the judgment of divorce to be conclusive of
domicile, given that the court, in the same breath, pointed to where the child spent the
majority of his time.
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nights of the week. It bears repeating, however, that none of these domicile factors
would alone be determinative.60
II. APPLICATION
A. GRANGE INS CO OF MICH v LAWRENCE
Because the underlying facts necessary to determine Josalyn’s domicile at the time
of her death are not in dispute, where Josalyn was domiciled is a question of law.61 In the
present case, the judgment of divorce granted joint legal custody to both Lawrence and
Rosinski, but primary physical custody to Rosinski and a significant amount of parenting
time to Lawrence. The family court’s judgment demonstrates that it was intended that
Josalyn would spend the majority of her time at Rosinski’s residence, and while there
was the intent for Josalyn to spend time with Lawrence at his residence, the intent was
always for the child to return to Rosinski’s residence. Therefore, under the rule I would
establish, the custody determination contained within the judgment of divorce in this case
would create a rebuttable presumption that the child was domiciled with Rosinski.
With regard to whether this presumption created by the family court order could
be rebutted, I would conclude that it cannot under the facts of this case. Because
Rosinski’s residence was identified whenever an address was needed for the child, the
little mail Josalyn received would have been sent to this address. The accident report and
Josalyn’s death certificate both listed Rosinski’s home as the child’s home. While
Lawrence did maintain a room for the children in his apartment, the sisters shared a bed,
60
Workman, 404 Mich at 496.
61
See Fowler, 254 Mich App at 364.
24
and the majority of Josalyn’s clothing and her pets were kept at Rosinski’s residence.
Josalyn depended on both of her parents for support. The facts also indicate that Josalyn
spent the majority of her time and the majority of her overnights at Rosinski’s home.
Significantly, both Lawrence and Rosinski indicated that Rosinski’s home was Josalyn’s
primary residence, given the ordinary meaning of the phrase. Overall, the facts in this
case indicate that Lawrence and Rosinski implemented the custody order and do not
demonstrate that Lawrence and Rosinski jointly intended for Lawrence’s residence to be
the child’s only domicile. On this basis, I would conclude that the lower courts erred by
concluding that Josalyn was domiciled with both Lawrence and Rosinski and that Grange
was liable for PIP benefits arising out of Josalyn’s injuries and death.62
62
In our grant order, this Court asked the parties to address in part “whether an insurance
policy provision giving preclusive effect to a court-ordered custody arrangement is
enforceable.” Grange Ins Co of Mich v Lawrence, 493 Mich 851 (2012). For the reasons
set forth in this opinion, I agree with the majority that Grange is entitled to summary
disposition. Nonetheless, under my rule, I would conclude that a portion of the Grange
policy may be invalid.
“To the degree that [a policy] is in conflict with the [no-fault] statute, it is contrary
to public policy and, therefore, invalid.” Cruz v State Farm Mut Auto Ins Co, 466 Mich
588, 601; 648 NW2d 591 (2002). Regarding PIP benefits, the Grange policy defined a
covered “insured,” in pertinent part, as “any family member,” which in turn was defined
as:
[A] person related to you by blood, marriage or adoption and whose
principal residence is at the location shown on the Declarations Page. If a
court has adjudicated that one parent is the custodial parent, that
adjudication shall be conclusive with respect to the minor child’s principal
residence. [Emphasis added.]
The issue is whether, under my rule, the italicized portion of this definition would violate
the no-fault act, which provides for PIP benefits for relatives of an insured, who, in
relevant part, are a “relative of [a person named in the policy or the person’s spouse]
domiciled in the same household . . . .” MCL 500.3114(1) (emphasis added).
25
B. ACIA v STATE FARM MUTUAL AUTO INS CO
The material facts necessary to determine Sarah’s domicile at the time of her death
are not in dispute; therefore, where Sarah was domiciled is a question of law.63 The
original judgment of divorce granted physical custody to Campanelli and indicated that
the child’s domicile was to be in Michigan. However, Campanelli obtained permission
as the custodial parent, by order of the court, to change the child’s domicile to Tennessee.
Before the child’s death, an ex parte order from the circuit court purportedly transferred
custody of Sarah to Taylor and changed Sarah’s domicile to Taylor’s Michigan address;
however, this order was subsequently vacated and declared void ab initio. The judgment
of divorce granting physical custody to Campanelli and the subsequent order changing
the child’s domicile to Tennessee demonstrate that it was intended that Sarah would
spend the majority of her time with Campanelli in Tennessee. While there was the intent
for Sarah to leave Tennessee to spend time with Taylor in Michigan, the intent was
always for Sarah to return to Tennessee. Therefore, I would conclude that these orders
would establish a presumption that Sarah was domiciled in Tennessee with Campanelli.
It is clear from the policy’s choice of the phrase “principal residence” that Grange
anticipated the factual dilemma that arose in this case: a child of divorced parents with
two legal residences under Michigan law. The policy’s statement that a court
adjudication regarding custody is conclusive constitutes Grange’s attempt to close what it
saw as a potential gap in the no-fault act that could have been interpreted to expand
Grange’s liability. Because a minor child of divorced parents could have two legal
residences, Grange recognized that it was not entirely clear under Michigan law whether
such a child could likewise have two domiciles for purposes of PIP benefits pursuant to
MCL 500.3114(1). However, because Grange’s policy makes custody orders conclusive
of domicile, the policy would conflict with the rule I have proposed in this opinion.
63
See Fowler, 254 Mich App at 364.
26
With regard to whether this presumption could be overcome in this case, the
factual situation presented in ACIA is a closer question than the situation presented in
Grange. However, as in Grange, I would conclude that the presumption likewise cannot
be rebutted under the facts of ACIA. The fact that Sarah stayed in Michigan after her
summer break, attended high school in Michigan the following fall, and obtained a part-
time job in Michigan, indicates that Sarah used Taylor’s address as her mailing address
and on documents. Taylor’s address was also listed as Sarah’s address on Sarah’s
hospital records and death certificate. Given the length of Sarah’s stay in Michigan, it
can be inferred that she had a significant amount of possessions at Taylor’s Michigan
residence. The facts indicate that Sarah had her own room in Michigan and that Taylor
provided for Sarah while she was in Michigan. It is also clear that for the period of time
that Sarah was staying in Michigan, she actually spent most of her time and overnights in
Michigan; however, prior to Sarah coming to Michigan, she spent nearly 11 years in
Tennessee with Campanelli, only occasionally visiting Taylor in Michigan. None of the
facts in the record suggest that Sarah’s domicile in Tennessee ceased to exist; the facts
indicate that Campanelli gave Sarah permission to stay temporarily in Michigan after the
summer to attend school in the fall so that Sarah could get to know Taylor better.
Campanelli stated, “I did eventually agree that she could stay on a temporary basis and
enroll in high school[,]” and further stated, “It was never intended to be permanent . . . .”
The facts in this case are not so clearly inconsistent with the family court’s orders
so as to rebut the presumption that domicile is established by the custody order. Absent
evidence of a clear joint intent on the part of Sarah’s parents to change Sarah’s domicile,
the presumption that Sarah was domiciled in Tennessee would stand. While the facts
27
certainly indicate that there was the intent for Sarah to remain for an extended period of
time in Michigan, the facts do not clearly indicate that Sarah’s parents jointly intended
for her to remain in Michigan.
In my view, the lower courts improperly focused on Sarah’s intent with regard to
her domicile and whether she intended to remain in Michigan or return to Tennessee.
While Sarah was an older teen at 16 years old, she was not emancipated. An
unemancipated minor child’s intent is not pertinent in determining where the child is
domiciled under the no-fault act.64 The appropriate inquiry instead focuses on whether
the child’s parents have reached a joint intent regarding the child’s domicile that differs
from the domicile indicated by the family court’s orders.
I would conclude that Sarah was domiciled with Campanelli in Tennessee at the
time of her death; therefore, ACIA is not liable for providing PIP benefits for Sarah’s
injuries and death.
III. CONCLUSION
Consistent with the majority opinion, I would reaffirm Michigan’s long-standing
principle that a person, including a minor child, can have only one domicile. Further, I
concur in the majority’s results in these cases. I would reach those results instead by
holding that when a minor child has two legal residences pursuant to the Child Custody
64
See Miss Band of Choctaw Indians, 490 US at 48; MCL 722.4e(1)(d). I recognize that
a child’s preference is considered by the family court in certain circumstances. See MCL
722.23(i) (listing “[t]he reasonable preference of the child, if the court considers the child
to be of sufficient age to express preference[,]” as a factor in the best-interest-of-the-child
determinations). However, I would distinguish that the intent of the child is not pertinent
for purposes of determining domicile under the no-fault act.
28
Act, family court orders relating to custody of the child and the child’s residence(s) create
a rebuttable presumption of domicile under the no-fault act. Under the facts of these
cases, the presumptions in these cases would not be rebutted.
Brian K. Zahra
Stephen J. Markman
Bridget M. McCormack
29