Erica Rhae Moote v. Dustin Edward Moote

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ERICA RHAE MOOTE, FOR PUBLICATION
August 27, 2019
Plaintiff-Appellee, 9:05 a.m.
v No. 346527
Alger Circuit Court
DUSTIN EDWARD MOOTE, Family Division
LC No. 2016-007600-DM
Defendant-Appellant.
Before: GADOLA, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
RONAYNE KRAUSE, J.
In this custody matter, defendant-father appeals by right from the portion of the parties’
judgment of divorce1 that, in relevant part, granted plaintiff-mother’s request to change the
domicile of the parties’ minor child, AM, by allowing plaintiff to move to Alabama with AM.
We affirm.
I. BACKGROUND
Plaintiff and defendant were married in December 2008 and had one minor child born
during the marriage, AM. Plaintiff also had a daughter from a prior marriage, who is not at issue
in this matter. During the parties’ marriage, plaintiff was primarily a stay-at-home parent while
defendant was in the military until he began collecting disability benefits in 2014. However, the
marriage was riddled with domestic violence, allegedly committed by both parties, and several
periods of separation.
1
This Court previously dismissed defendant’s claim of appeal from the judgment of divorce for
lack of jurisdiction because, under the circumstances, it was not a final judgment under MCR
7.202(6)(a). Moote v Moote, unpublished order of the Court of Appeals, entered October 17,
2018 (Docket No. 345744). Defendant claims an appeal in this matter from the trial court’s later
and final child support order. Substantively, however, defendant does not challenge the support
order, but rather only the change of domicile.
-1-
In March 2016, plaintiff filed a complaint for divorce requesting sole physical and legal
custody of AM. Plaintiff later rescinded her request for sole legal custody and asked for joint
legal custody to continue. Defendant responded that the parties should share joint legal and
physical custody. During the pendency of the case, defendant began exercising parenting time
every other weekend with both children, although there was testimony at the parties’ divorce
hearing that he occasionally cancelled visitations. Meanwhile, plaintiff had primary custody of
the children, and she managed all of their educational and health care needs.
In May 2018, plaintiff filed a motion for a change of domicile, requesting the trial court’s
approval to relocate with AM to plaintiff’s home state of Alabama. The trial court took
testimony on the matter during the parties’ divorce hearing. At the hearing, plaintiff testified that
her family resided in Alabama and could offer her support and child care so that she could obtain
an education and employment. She further suggested that both children could continue to have a
relationship with defendant through electronic communications and extensive parenting time
during the summer and holiday breaks. Defendant objected to the relocation, arguing that the
distance and long periods of time between visitations would strain his relationship with AM.
The trial court agreed with plaintiff that the change in domicile had the capacity to improve both
plaintiff’s and AM’s lives, and it granted plaintiff’s motion within the judgment of divorce.
On appeal, defendant argues that the trial court abused its direction by making findings
and granting plaintiff’s motion for change of domicile without sufficiently analyzing the best-
interest factors in MCL 722.23 or required considerations under MCL 722.31(4). We disagree.
II. STANDARD OF REVIEW
“This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to
grant a motion for change of domicile.” Sulaica v Rometty, 308 Mich. App. 568, 577; 866 NW2d
838 (2014). An abuse of discretion exists when the trial court’s decision is “palpably and grossly
violative of fact and logic . . . ” Fletcher v Fletcher, 447 Mich. 871, 879; 526 NW2d 889 (1994),
quoting Spalding v Spalding, 355 Mich. 382, 384-385; 94 NW2d 810 (1959).2
In child custody disputes, “ ‘all orders and judgments of the circuit court shall be
affirmed on appeal unless the trial judge made findings of fact against the great weight of
evidence or committed a palpable abuse of discretion or a clear legal error on a major issue.’ ”
Pierron v Pierron, 486 Mich. 81, 85; 782 NW2d 480 (2010), quoting MCL 722.28. The great
weight of the evidence standard applies to all findings of fact; a trial court’s findings, including
the trial court’s findings in applying the MCL 722.31 factors, should be affirmed unless the
evidence clearly preponderates in the opposite direction. Pierron, 486 Mich. at 85; see also
Gagnon v Glowacki, 295 Mich. App. 557, 565; 815 NW2d 141 (2012). In reviewing the trial
court’s findings, this Court should defer to the trial court’s determination of credibility. Shann v
2
Although the “outside the range of principled outcomes” standard is now the “default abuse of
discretion standard,” see Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 N.W.2d 809
(2006), child custody cases specifically retain the historic Spalding standard. Maier v Maier,
311 Mich. App. 218, 221-223; 874 N.W.2d 725 (2015).
-2-
Shann, 293 Mich. App. 302, 305; 809 NW2d 435 (2011). Further, this Court may not substitute
its judgment on questions of fact “unless the facts clearly preponderate in the opposite direction.”
Gagnon, 295 Mich. App. at 565.
III. APPLICABLE LAW
Pursuant to MCR 3.211(C)(3), “a parent whose custody or parenting time of a child is
governed by [court] order shall not change the legal residence of the child except in compliance
with . . . MCL 722.31.” In pertinent part, MCL 722.31 states:
(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.
* * *
(4) Before permitting a legal residence change otherwise restricted by
subsection (1), the court shall consider each of the following factors, with the
child as the primary focus in the court’s deliberations:
(a) Whether the legal residence change has the capacity to improve the
quality of life for both the child and the relocating parent.
(b) The degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child, and whether
the parent’s plan to change the child’s legal residence is inspired by that parent’s
desire to defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the court permits the
legal residence change, it is possible to order a modification of the parenting time
schedule and other arrangements governing the child’s schedule in a manner that
can provide an adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each parent is likely
to comply with the modification.
(d) The extent to which the parent opposing the legal residence change is
motivated by a desire to secure a financial advantage with respect to a support
obligation.
(e) Domestic violence, regardless of whether the violence was directed
against or witnessed by the child.
Thus, when a parent moves for leave to change a child’s domicile by a distance of more than 100
miles, the trial court must consider the request using the following four-part analysis:
-3-
First, a trial court must determine whether the moving party has established by a
preponderance of the evidence that the factors enumerated in MCL 722.31(4), the
so-called D’Onofrio factors,[3] support a motion for a change of domicile.
Second, if the factors support a change in domicile, then the trial court must then
determine whether an established custodial environment exists. Third, if an
established custodial environment exists, the trial court must then determine
whether the change of domicile would modify or alter that established custodial
environment. Finally, if, and only if, the trial court finds that a change of
domicile would modify or alter the child’s established custodial environment must
the trial court determine whether the change in domicile would be in the child’s
best interests by considering whether the best-interest factors in MCL 722.23 have
been established by clear and convincing evidence. [Rains v Rains, 301 Mich
App 313, 325; 836 NW2d 709 (2013) (citation omitted).]
This four-part analysis requires that the trial court consider the factors “with the child as the
primary focus in the court’s deliberations.” MCL 722.31(4).
IV. ANALYSIS OF D’ONOFRIO FACTORS
As an initial matter, defendant does not clearly present an argument pertaining to the
D’Onofrio factors under MCL 722.31. He directly cites only some of the best interest factors
under MCL 722.23. This may constitute abandonment of any challenge to the trial court’s
findings that the D’Onofrio factors support plaintiff’s motion to change AM’s domicile. See
People v Harris, 261 Mich. App. 44, 50; 680 NW2d 17 (2004). Nevertheless, we would, in any
event, conclude that the trial court’s findings were not against the great weight of the evidence.
Under the first D’Onofrio factor, MCL 722.31(4)(a), the trial court found that the
proposed relocation had the capacity to improve the quality of life for both AM and plaintiff. In
particular, the trial court determined that the move would provide plaintiff with a support system
that would benefit AM. Both children expressed their preference to go to Alabama. There was
evidence that plaintiff worked “odd jobs” and only worked when defendant had been available to
provide care for the children or the children were in school. Plaintiff testified that in Alabama,
she had free childcare available, and she intended to find employment and continue her
education. Defendant argues that plaintiff has demonstrated a lack of work ethic and would only
depend on her family if allowed to relocate, but we defer to the trial court on issues of credibility.
Shann, 293 Mich. App. at 305. The trial court was free to believe plaintiff’s testimony that she
would have no trouble finding employment opportunities in Alabama. Moreover, it is
undisputed that plaintiff had not worked during the marriage primarily because she was a stay-at-
3
See D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976). The “D’Onofrio
factors” were adopted by this Court as the proper analysis when addressing removal petitions in
Henry v Henry, 119 Mich. App. 319, 323-324; 326 NW2d 497 (1982); see also Costantini v
Costantini, 446 Mich. 870, 871; 521 NW2d 1 (1994) (RILEY, J.). Our Supreme Court does not
appear to have addressed the propriety of relying on D’Onofrio. See Marko v Marko, 462 Mich.
881; 613 NW2d 722 (2000); app dismissed 462 Mich. 881, 882; 617 NW2d 691 (2000).
-4-
home parent. Defendant recognized that plaintiff could have worked more during the marriage,
but he stated that “it was better for the children that she didn’t work.” Defendant contends that
he may have continued to assist plaintiff and assist in AM’s care if AM remained in Michigan.
Nevertheless, the trial court’s finding that the move had the capacity to improve AM’s and
plaintiff’s quality of life was not against the great weight of the evidence. Even if this factor was
close, the evidence did not clearly preponderate in the opposite direction. Gagnon, 295 Mich
App at 565.
Under the second D’Onofrio factor, MCL 722.31(4)(b), defendant contends that “part of
[plaintiff’s] motivation is simply to hurt [defendant’s] relationship with his daughter.” We
presume this to approximate an argument that plaintiff’s request to change domicile was an
attempt to defeat or frustrate the parenting-time schedule that the parties were exercising at the
time. We disagree. Notably, plaintiff proposed a new parenting-time schedule that would still
allow defendant to exercise substantial parenting time, and she expressly asked the court to
“grant [defendant] extensive parenting time in the summer.” Plaintiff also suggested that AM
and defendant could maintain contact through videoconferencing software. Plaintiff’s
suggestions tend to indicate that she was not attempting to frustrate the parties’ existing
parenting time schedule and that she would continue to facilitate defendant’s parenting time and
relationship with AM.
Under the third D’Onofrio factor, MCL 722.31(4)(c), the trial court opined that it was
possible to modify the parenting-time schedule in a manner that could provide an adequate basis
for preserving and fostering the parental relationship between defendant and AM. As noted,
plaintiff proposed, and the trial court adopted, a schedule that granted defendant most of each
summer, other school breaks, and one long weekend a month if he could travel to visit AM. The
trial court also ordered that AM would have a right to communicate electronically with
defendant. Notwithstanding defendant’s claim that the schedule will harm his relationship with
AM, the trial court observed that defendant would exercise more overnights with AM under the
new schedule than under the alternating weekend schedule. The visiting time schedule under
MCL 772.31(4)(c) “need not be equal to the prior visitation plan in all respects.” Brown v
Loveman, 260 Mich. App. 576, 603; 680 NW2d 432 (2004). Under the circumstances, “the
proposed parenting-time schedule provides a realistic opportunity to preserve and foster the
parental relationship previously enjoyed by the nonrelocating parent.” McKimmy v Melling, 291
Mich. App. 577, 584; 805 NW2d 615 (2011) (citation and quotation marks omitted).
Accordingly, the trial court’s finding that the parental relationship could be preserved with the
modified parenting-time schedule was not against the great weight of the evidence.
Under the fourth D’Onofrio factor, MCL 722.31(4)(d), the record supports a conclusion
that plaintiff’s motion was not “motivated by a desire to secure a financial advantage with
respect to a support obligation.” Indeed, plaintiff testified that the move could prove financially
challenging for her at first, but she wanted the children to be cared for by family whenever she
had to work or attend school. Furthermore, the trial court specifically explained that it had not
taken plaintiff’s move to Alabama into account when addressing the issue of spousal support.
Defendant does not present any argument that would support an opposite conclusion.
Finally, under the fifth D’Onofrio factor, MCL 722.31(4)(e), the record is clear that both
parties alleged domestic violence during the marriage; however, there is no indication that this
-5-
played a role in the trial court’s consideration of plaintiff’s request for relocation. The court
need not comment on every matter in evidence or declare acceptance or rejection of every
proposition argued. Fletcher, 447 Mich. at 883. Furthermore, defendant does not raise any
arguments regarding this factor. Ultimately, the trial court determined that plaintiff’s move to
Alabama was warranted and would benefit AM. Based on the foregoing, the trial court’s
findings concerning the D’Onofrio factors as set forth in MCL 722.31(4) were not against the
great weight of the evidence.
V. CUSTODIAL ENVIRONMENT AND BEST INTERESTS
If the trial court determines that the D’Onofrio factors support a requested change of
domicile, the next step is for the court to determine whether an established custodial environment
exists. Rains, 301 Mich. App. at 325. “An established custodial environment is one of significant
duration in which a parent provides care, discipline, love, guidance, and attention that is
appropriate to the age and individual needs of the child.” Berger v Berger, 277 Mich. App. 700,
706; 747 NW2d 336 (2008). Defendant does not challenge the trial court’s finding that an
established custodial environment existed with plaintiff. The evidence that AM lived with
plaintiff, and plaintiff was responsible for AM’s educational and health needs, tends to indicate
that no challenge would be appropriate in any event.
Defendant argues that the trial court failed to properly analyze the best interest factors
under MCL 722.23. However, the trial court was not required to address the best interest factors.
As this Court has explained,
if, and only if, the trial court finds that a change of domicile would modify or alter
the child’s established custodial environment must the trial court determine
whether the change in domicile would be in the child’s best interests by
considering whether the best-interest factors in MCL 722.23 have been
established by clear and convincing evidence. [Rains, 301 Mich. App. at 325
(emphasis added).]
Plaintiff’s move to Alabama with AM would only change AM’s domicile. The move would not
change AM’s established custodial environment with plaintiff. Consequently, the trial court’s
failure to address the best interest factors was neither erroneous nor an abuse of discretion. Id.
Affirmed.
/s/ Amy Ronayne Krause
/s/ Michael F. Gadola
/s/ Jane E. Markey
-6-