Sarah M Gleason v. Ryan J Gleason

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
SARAH M. GLEASON, UNPUBLISHED
February 4, 2021
Plaintiff-Appellee,
v No. 352811
St. Clair Circuit Court
Family Division
RYAN J. GLEASON, LC No. 13-002588-DM
Defendant-Appellant.
Before: FORT HOOD, P.J., and CAVANAGH and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order granting plaintiff’s motion for a change
of domicile of their minor child, LG, and denying defendant’s motion to stay the proceedings. We
affirm.
I. FACTUAL BACKGROUND
Plaintiff and defendant were married on February 15, 2008. LG was born on April 20,
2010. On September 30, 2013, plaintiff filed for divorce. On November 14, 2013, the court
entered an order for custody and parenting time awarding plaintiff and defendant joint legal and
joint physical custody of LG. Plaintiff was awarded primary residence of LG with LG attending
school in the Algonac School District unless otherwise agreed upon by plaintiff and defendant or
further court order. In regard to parenting time, defendant had LG every other Tuesday until the
following Monday morning at 8:00 a.m. Plaintiff then had LG from Monday morning for eight
days until the following Tuesday. On February 27, 2014, the judgment of divorce was entered.
Subsequently, both plaintiff and defendant separately moved to Sterling Heights where LG started
to attend school. At the time the proceedings commenced in this action, plaintiff and defendant
both lived in Sterling Heights.
On October 8, 2019, plaintiff filed an amended motion for change of domicile asserting
that she was a member of the Air National Guard, currently working at the Selfridge Air National
Guard Base (Selfridge), on active reserve for the military, and employed by the Department of
Defense in a civilian job. With her position at Selfridge, plaintiff was deployed several times a
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year, which lasted several weeks or several months, and she was required to participate in drill
weekends once a month. Plaintiff further asserted that she had been offered a new job with the
military in Alpena, Michigan (Alpena), which was scheduled to begin on November 15, 2019.
Plaintiff believed that accepting the job in Alpena and relocating LG to Alpena would improve her
life as well as LG’s life because she would no longer be deployed or have to participate in drill
weekends, which kept her away from LG, she would receive free health insurance for her and LG,
she would be able to retire from the military much earlier with the position in Alpena than with
her current position, and LG would benefit from living in a small town such as Alpena. Defendant
filed a response arguing that the trial court should not grant plaintiff’s motion for change of
domicile because plaintiff was motivated to move to Alpena to be with her fiancé Jules Matthew
Descamps, and relocating LG to Alpena would take him farther away from defendant, his friends
and family, and his school. During the proceedings, defendant also filed a motion requesting that
the court grant him full custody of LG and grant plaintiff reasonable parenting time.
The court held an evidentiary hearing on plaintiff’s motion for change of domicile and
defendant’s motion to change custody. The trial court concluded that it was in LG’s best interests
that plaintiff have full physical custody of LG. The court granted plaintiff’s motion for change of
domicile. The trial court also ordered, despite an oral motion by defendant requesting that the
court stay the change of domicile until LG’s school semester ended, that the change of domicile
would become effectively immediately. Defendant now appeals.
II. CHANGE OF DOMICILE
Defendant argues that the trial court abused its discretion in granting plaintiff’s motion for
a change of domicile because plaintiff failed to establish, by a preponderance of the evidence, that
the enumerated factors in MCL 722.31(4) favored a change in domicile. We disagree.
“This Court reviews a trial court’s decision regarding a motion for change of domicile for
an abuse of discretion and a trial court’s findings regarding the factors set forth in MCL 722.31(4)
under the ‘great weight of the evidence’ standard.” Rains v Rains, 301 Mich App 313, 324; 836
NW2d 709 (2013). “An abuse of discretion is found only in extreme cases in which the result is
so palpably and grossly violative of fact and logic that it evidences a perversity of will or the
exercise of passion or bias.” Id. (quotation marks and citation omitted). Under the great weight
of the evidence standard, “the trial court’s findings will be sustained unless the evidence clearly
preponderates in the opposite direction.” Wardell v Hincka, 297 Mich App 127, 133; 822 NW2d
278 (2012). “However, where a trial court’s findings of fact may have been influenced by an
incorrect view of the law, our review is not limited to clear error.” Rains, 301 Mich App at 324-
325 (quotation marks and citation omitted). “In the child custody context, questions of law are
reviewed for clear legal error.” Sulaica v Rometty, 308 Mich App 568, 577; 866 NW2d 838 (2014).
“A trial court commits legal error when it incorrectly chooses, interprets, or applies the law.” Id.In Rains, this Court enumerated the four-step process a court must undertake when
determining whether to grant or deny a motion for change of domicile:
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
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so-called D’Onofrio[1] factors, support a motion for a change of domicile. Second,
if the factors support a change in domicile, then the trial court must then determine
whether an established custodial environment exists. Third, if an established
custodial environment exists, the trial court must then determine whether the
change of domicile would modify or alter that established custodial environment.
Finally, if, and only if, the trial court finds that a change of domicile would modify
or alter the child’s established custodial environment must the trial court determine
whether the change in domicile would be in the child’s best interests by considering
whether the best-interest factors in MCL 722.23 have been established by clear and
convincing evidence. [Rains, 301 Mich App at 325 (citation omitted).]
A. WHETHER PLAINTIFF ESTABLISHED THE FACTORS ENUMERATED IN MCL
722.31(4) BY A PREPONDERANCE OF THE EVIDENCE
Under MCL 722.31(1), “a parent of a child whose custody is governed by court order shall
not change a legal residence of the child to a location that is more than 100 miles from the child’s
legal residence at the time of the commencement of the action in which the order is issued.” MCL
722.31(4) governs when a parent seeks to move a child more than 100 miles from the child’s legal
residence, and provides:
(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.
1
D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976).
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(e) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
As the party requesting the change in domicile, plaintiff had the burden of establishing, by a
preponderance of the evidence, that the change in domicile was warranted. Rains, 301 Mich App
at 325-325. Defendant argues that the trial court’s findings regarding MCL 722.31(4)(a) and (c)
were against the great weight of the evidence.
1. MCL 722.31(4)(a)
Defendant contends that the trial court’s finding under MCL 722.31(4)(a)— that changing
LG’s legal residence to Alpena had the capacity to improve his quality of life—was against the
great weight of the evidence. Defendant contends that the trial court focused on the way in which
the move to Alpena would improve plaintiff’s quality of life but failed to focus primarily on the
way in which the move to Alpena would improve LG’s quality of life.
This Court has recognized that “an increase in a parent’s income may improve a child’s
quality of life.” Yachcik v Yachcik, 319 Mich App 24, 41; 900 NW2d 113 (2017). The court found
that there would be an improvement in the “financial situation” if plaintiff relocated to Alpena.
The court noted that, although plaintiff’s actual salary would not increase, the benefits she would
receive from the new position, as well as the ability to retire earlier, were an improvement because
the new position would move her toward financial stability. The court concluded that the move to
Alpena had the capacity to improve both plaintiff’s and LG’s lives because plaintiff would not
have to be deployed if she accepted the new position in Alpena. The court noted that, throughout
LG’s life, plaintiff had been absent because she had been deployed for extended periods of time.
Further, the court noted that it was hard on LG to have plaintiff absent for these periods of time.
The court also took particular concern with the risk posed with deployment.
This Court has also recognized that “living in close proximity to immediate and extended
family members and remaining in a stable environment are relevant considerations with regard to
MCL 722.31(4)(a).” Id. at 44. The court found that the move to Alpena had the potential to
improve LG’s life because Alpena was closer in proximity to LG’s maternal family. The court
noted that, although Alpena was farther away from LG’s paternal family, LG appeared to have a
closer relationship with his maternal family than his paternal family because, when plaintiff was
deployed, LG spent some of that time living with his maternal grandparents. We note, however,
that the record does not support the trial court’s finding that LG would be closer to his maternal
family in Alpena. Plaintiff testified that her parents and sisters lived in Millington, Michigan,
which is approximately an hour and a half drive from Sterling Heights and two hours from Alpena.
Thus, the move to Alpena would move LG farther from his maternal family as well as farther from
his paternal family.
Further, “the benefits of the school or school district where the moving party plans to
relocate is a relevant consideration under MCL 722.31(4).” Id. at 41. The court also considered
the evidence presented regarding the safety of both Sterling Heights and Alpena, as well as the
statistics of the elementary school in Alpena and the school LG attended in Sterling Heights. The
court found that the schooling or crime rates did not affect its decision because LG would perform
well in any school he attended, and it was unlikely that he would get involved in unsafe situations.
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Upon review of the record, the trial court primarily focused on the fact that plaintiff’s new
position offered multiple benefits, including financial stability, increased time with plaintiff, and
no risk of deployment, all of which had the capacity to improve LG’s life. And, although the trial
court’s conclusion regarding proximity to extended family does not appear to be supported by the
record, the evidence does not indicate that the trial court’s result was so palpably and grossly
violative of fact and logic that it evidences a perversity of will or the exercise of passion or bias.
Thus, the trial court did not abuse its discretion in regard to MCL 722.31(4)(a).
2. MCL 722.31(4)(c)
Defendants contends that, because of the domicile change, it is not possible for the court
to order a modification of the parenting time schedule that will adequately preserve and foster his
relationship with LG. We disagree.
“[W]hen the domicile of a child is changed, the new visitation plan need not be equal with
the old visitation plan, as such equality is not possible.” McKimmy v Melling, 291 Mich App 577,
583; 805 NW2d 615 (2011). “The new visitation plan only need provide a realistic opportunity to
preserve and foster the parental relationship previously enjoyed by the nonrelocating parent.” Id.(quotation marks and citation omitted). “This Court has previously opined that ‘[p]erhaps’
extended periods of visitation will ‘foster, not hinder,’ a closer parent-child relationship.” Id.,quoting Anderson v Anderson, 170 Mich App 305, 311; 427 NW2d 627 (1988). “In applying
factor (c), a trial court should consider the financial feasibility of the new visitation plan and the
ages of the children, as well as the use of modern technology[.]” McKimmy, 291 Mich App at 583.
“The separation between a parent and a child can be diminished by the use of modern
communication technology.” Id. (quotation marks and citation omitted).
The court concluded that a week on week off schedule would no longer be possible because
LG could not attend two different schools. The court further concluded that it would be possible
to work out a parenting time schedule to allow both plaintiff and defendant to maintain their
relationship with LG. The court believed that, because both plaintiff and defendant had a strong
relationship with LG, it would be possible for either parent to maintain their respective relationship
with LG. The court also noted that it was taking into consideration available technology that would
diminish any separation.
The court ordered that defendant would have parenting time one weekend a month, and
plaintiff would be required to drive LG to Sterling Heights for that weekend. The court also
ordered that defendant could have one other weekend a month in Alpena if he wanted to drive to
Alpena for the weekend. In addition, defendant would have parenting time in the summer, starting
the first Sunday after school ends. The court ordered the parties to use the St. Clair County long
distance guidelines for holidays, which generally recommends alternating holidays. The court also
asserted that LG needed to be able to contact defendant at any time. Because the inquiry under
MCL 722.31(4)(c) is “only whether the proposed parenting-time schedule provides a realistic
opportunity to preserve and foster the parental relationship previously enjoyed by the
nonrelocating parent,” Melling, 291 Mich App at 584 (citations and quotation marks omitted), the
trial court’s findings are not against the great weight of the evidence. The parenting time schedule
allows defendant to maintain regular contact with LG. He has the ability to see him two weekends
a month. Further, during the summer, defendant has sole parenting time, allowing him and LG to
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maintain a similar schedule and routine as under the prior parenting time schedule. In addition,
defendant is entitled to communicate electronically with LG at any time.
3. FOCUS ON THE CHILD UNDER MCL 722.31(4)
Defendant contends that that trial court committed legal error by, on its face, failing to
apply the correct legal standard. We disagree.
For an issue to be preserved for appellate review, it must be raised in the trial court.
Glasker-Davis v Auvenshine, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 345238);
slip op at 3. “[I]ssue preservation requirements only impose a general prohibition against raising
an issue for the first time on appeal.” Id. at ___; slip op at 3 (citation omitted). In the lower court,
defendant failed to challenge the trial court’s findings on the basis that the court misapplied the
legal standard. Thus, this issue is not preserved for appellate review. This Court reviews
unpreserved issues for plain error. In re Contempt of Henry, 282 Mich App 656, 666; 765 NW2d
44 (2009). “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Id. (quotation marks and citation omitted). “The third requirement generally
requires a showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings.” In re Diehl, 329 Mich App 671, 701; 944 NW2d 180 (2019) (citation omitted).
Under MCL 722.31(4), as stated earlier, before permitting a legal residence change
restricted by subsection MCL 722.31(1), the court is required to consider the factors set forth in
MCL 722.31(4)(a)-(e) with the child as the primary focus in the court’s deliberations. Defendant
contends that the trial court clearly erred because it failed to keep LG the primary focus of its
deliberations, but rather, the trial court focused primarily on whether relocating to Alpena would
benefit plaintiff.
Defendant’s argument is without merit. The trial court did not appear to improperly apply
MCL 722.31(4). The court stated on the record that it needed to consider MCL 722.31 and the
D’Onofrio factors. The court further stated that “[t]he analysis under the D’Onofrio factors, as
[sic], that’s codified in [MCL] 722.31(4), [the] primary focus is supposed to be on [LG].” Thus,
the court acknowledged that its primary focus must be on LG. Therefore, the trial court did not
clearly apply the wrong legal standard to its findings.
B. ESTABLISHED CUSTODIAL ENVIRONMENT
“It is only after the trial court determines that the moving party has shown by a
preponderance of the evidence that a change of domicile is warranted that the trial court must
determine whether an established custodial environment exists.” Rains, 301 Mich App at 327.
Under MCL 722.27(1)(c):
The custodial environment of a child is established if over an appreciable time the
child naturally looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child, the physical
environment, and the inclination of the custodian and the child as to permanency of
the relationship shall also be considered. If a motion for change of custody is filed
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while a parent is active duty, the court shall not consider a parent’s absence due to
that active duty status in a best interest of the child determination.
“A child may have an established custodial environment with both parents where a child looks to
both the mother and the father for guidance, discipline, the necessities of life, and parental
comfort.” Rains, 301 Mich App at 327 (quotation marks and citation omitted).
The court determined that LG’s change of residence from Sterling Heights to Alpena, and
the consequent change in parenting time for defendant, would change the established custodial
environment from both plaintiff and defendant to plaintiff. Defendant does not dispute the trial
court’s conclusion. On appeal, plaintiff briefly asserts that LG’s established custodial environment
may not change because the move to Alpena does not affect defendant’s ability to guide, discipline,
comfort, and provide for LG. Nonetheless, plaintiff argues that, if there is a change in custodial
environment, the trial court correctly found that the change in custodial environment was in LG’s
best interest.2
W note that the trial court properly found that LG’s custodial environment would change
from both parents to only plaintiff. LG lived with both plaintiff and defendant in Sterling Heights.
Defendant equally participated in providing structure and guidance for LG. Defendant parented
LG equally during the school year. He helped him with his homework and was actively involved
in his life. The everyday involvement, particularly during the school year when a structured
environment is so important for a child, would inevitably change from both plaintiff and defendant
to only plaintiff with the move to Alpena. Thus, the court was required to determine whether the
change in custodial environment was in LG’s best interests. Id. at 328.
C. BEST INTERESTS
Defendant argues that the trial court erred in concluding that plaintiff established, by clear
and convincing evidence, that it was in LG’s best interests to change the established custodial
environment. We disagree.
As noted above, “[t]his Court reviews a trial court’s decision regarding a motion for change
of domicile for an abuse of discretion[.]” Rains, 301 Mich App at 324. This Court reviews a trial
court’s findings of fact regarding the best interest factors “under the great weight of the evidence
standard.” Sinicropi v Mazurek, 273 Mich App 149, 155; 729 NW2d 256 (2006).
If the trial court concludes that a change in an established custodial environment would
occur, then the party requesting the change of domicile must prove by clear and convincing
2
In the trial court, plaintiff agreed that the established custodial environment would change if LG
moved to Alpena. Thus, to the extent plaintiff intends to argue on appeal that the established
custodial environment will not change, this argument was waived in the trial court. “A waiver
consists of the intentional relinquishment or abandonment of a known right.” Patel v Patel, 324
Mich App 631, 634; 922 NW2d 647 (2018). “Thus, a valid waiver may be shown by express
declarations or by declarations that manifest the parties’ intent and purpose[.]” Id. (quotation
marks and citation omitted).
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evidence that the change is in the child’s best interests. Id. MCL 722.23 sets forth the factors to
be considered in determining a child’s best interests:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in his
or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted under
the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and
the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or
homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent or the child and the parents. A court may not consider negatively for the
purposes of this factor any reasonable action taken by a parent to protect a child or
that parent from sexual assault or domestic violence by the child’s other parent.
(k) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute.
“These findings and conclusions need not include consideration of every piece of evidence entered
and argument raised by the parties. However, the record must be sufficient for this Court to
determine whether the evidence clearly preponderates against the trial court’s findings.” Rains,
301 Mich App at 329 (quotation marks and citation omitted). “This Court will defer to the trial
court’s credibility determinations, and the trial court has discretion to accord differing weight to
the best-interest factors.” Id. (quotation marks and citation omitted). “A court need not give equal
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weight to all the factors, but may consider the relative weight of the factors as appropriate to the
circumstances.” Sinicropi, 273 Mich App at 184.
The trial court found that best interest factors (a), (b), (d), (e), (f), and (g) were neutral and
favored neither plaintiff nor defendant, factor (k) was not applicable, and factors (c), (h), (j), and
(l) favored plaintiff. Defendant challenges the trial court’s findings regarding factors (d), (e), (f),
(h), and (j).
1. MCL 722.23(d)
MCL 722.23(d) requires the court to consider “[t]he length of time the child has lived in a
stable, satisfactory environment, and the desirability of maintaining continuity.” Defendant argues
that the trial court’s failure to find that this factor favored defendant was against the great weight
of the evidence. We disagree.
The trial court found that best interest factor (d) was neutral because both plaintiff and
defendant had consistently provided LG an appropriate household, and LG was comfortable in
both plaintiff’s and defendant’s homes. The court further found that both plaintiff and defendant
protected LG and provided LG with a safe household. The trial court’s findings were not against
the great weight of the evidence. Since the time of the party’s divorce in 2014 and the initial
custody order, LG had equal time living with both plaintiff and defendant. Both plaintiff and
defendant consistently exercised their one week on and one week off parenting time. The evidence
supported the finding that both plaintiff and defendant provided safe, suitable, and satisfactory
environments for LG.
2. MCL 722.23(e)
MCL 722.23(e) requires the court to consider “[t]he permanence, as a family unit, of the
existing or proposed custodial home or homes.” Defendant argues that the trial court’s failure to
find that MCL 722.23(e) favored defendant was against the great weight of the evidence because
plaintiff has a history of unstable relationships. We disagree.
“This factor exclusively concerns whether the family unit will remain intact, not an
evaluation about whether one custodial home would be more acceptable than the other.” Rains,
310 Mich App at 336 (quotation marks and citation omitted). The trial court concluded that best
interest factor (e) was neutral because plaintiff and defendant both provide permanency to LG.
The trial court considered plaintiff’s previous engagement to Greg Atkins as well as her current
engagement to Descamps, and concluded that there was no evidence that there had been anything
inappropriate about plaintiff having Atkins and Descamps in her household. In addition, the court
found that plaintiff and Descamps had a home together in Alpena, and the relationship and living
arrangement appeared permanent. In addition, the court noted that both plaintiff and defendant
were relatively young adults and may have different romantic relationships in the future, but
despite this fact, they both provided a permanent household. The trial court’s findings were not
against the great weight of the evidence. Despite plaintiff’s relationships, there was no evidence
that plaintiff failed to provide a permanent family unit for LG, or that she would not be able to
provide a permanent family unit for LG in Alpena. Defendant also provided a permanent family
unit for LG. Therefore, this factor is neutral.
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3. MCL 722.23(f)
MCL 722.23(f) requires the court to consider “[t]he moral fitness of the parties involved.”
Defendant argues that the trial court’s failure to find that MCL 722.23(f) favored defendant was
against the great weight of the evidence because plaintiff has a history of unstable relationships
and her relationships negatively affected LG. We disagree.
In Fletcher v Fletcher, 447 Mich 871, 887; 526 NW2d 889 (1994), the Michigan Supreme
Court explained the relevant inquiry when evaluating best interest factor (f):
To evaluate parental fitness, courts must look to the parent-child relationship and
the effect that the conduct at issue will have on that relationship. Thus, the question
under factor f is not “who is the morally superior adult;” the question concerns the
parties’ relative fitness to provide for their child, given the moral disposition of
each party as demonstrated by individual conduct. We hold that in making that
finding, questionable conduct is relevant to factor f only if it is a type of conduct
that necessarily has a significant influence on how one will function as a parent.
[Footnote omitted.]
Here, the trial court found that best interest factor (f) was neutral because neither plaintiff nor
defendant had any issues that impacted their ability to properly parent LG. Defendant contends
that plaintiff’s personal relationships impacted her moral fitness as a parent insofar as her
relationship choices impacted LG. The evidence indicates that plaintiff entered into a relationship
with Atkins in 2016, to whom she became engaged. In December 2018, the relationship ended, in
part, because LG did not like Atkins. In January 2019, plaintiff started dating Descamps, and in
February 2019, Descamps moved into plaintiff’s home.
The trial court’s finding that best interest factor (f) was neutral was not against the great
weight of the evidence. Despite plaintiff’s two relationships, there was no evidence that her
decisions regarding her relationships significantly influenced how she functioned as a parent. In
fact, plaintiff ended her relationship with Atkins, in part, because LG did not like Atkins. Thus,
plaintiff put LG before her relationship.
4. MCL 722.23(h)
MCL 722.23(h) requires that “[t]he home, school, and community record of the child” be
considered. Defendant contends that the trial court erred in concluding that this factor favored
plaintiff because the trial court completely failed to consider LG’s life in Sterling Heights. We
agree.
The trial court concluded that best interest factor (h) favored plaintiff because plaintiff “is
a little bit more flexible” and “more mindful of encouraging” LG’s relationship with his friends.
The court also found that, “as it relates to the community and the school engagement,” factor (h)
favored plaintiff. The court provided no other support for its finding. The trial court’s findings
were against the great weight of the evidence. There was ample evidence presented regarding
LG’s home, school, and community record as it pertains to defendant and his life in Sterling
Heights. There is no dispute that LG and defendant had a strong bond. They had established a
routine in their home together. Defendant assisted LG with his homework, and required LG to
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complete chores. The testimony indicated that defendant was very involved in LG’s life. LG
played football for the city. As soon as LG joined the football team, defendant joined as a “team
dad.” LG was a straight-A student at his elementary school in Sterling Heights. LG had friends
and family in the community. Further, defendant had located a church for him and LG to attend
in the area. This factor should have been neutral. The record indicates that LG was succeeding in
his home life, schooling, and community in Sterling Heights, and defendant helped foster his
success.
5. MCL 722.23(j)
MCL 722.23(j) requires consideration of “[t]he willingness and ability of each of the
parties to facilitate and encourage a close and continuing parent-child relationship between the
child and the other parent or the child and the parents.” Defendant argues that the trial court’s
findings regarding factor (j) were against the create weight of the evidence. We disagree.
Defendant contends that the trial court’s findings were against the great weight of the
evidence because plaintiff’s failure to inform defendant that she intended to move to Alpena
demonstrated that plaintiff was unwilling to facilitate and encourage a relationship between LG
and defendant. The trial court found that this factor favored plaintiff because she had demonstrated
a wiliness to encourage a relationship between defendant and LG. The trial court’s findings were
not against the great weight of the evidence. The trial court found that plaintiff had previously
moved to Sterling Heights where defendant lived, so that plaintiff and defendant could be closer
for LG. Plaintiff demonstrated that she attempted to include defendant in activities with her and
LG. This is supported by the record.
Plaintiff testified that she invited defendant to play football with her and LG, she invited
defendant on a vacation with her and LG, she allowed LG to speak to defendant on the phone
during her parenting time, she bought Father’s Day cards for LG to give to defendant, and she
invited defendant to two of LG’s birthday parties. The court also found that, since the proceedings
had begun, defendant had retreated and refused to encourage LG’s relationship with plaintiff.
Defendant testified that, since the proceedings started, it had become more difficult to coparent
with plaintiff. Defendant did not discourage LG from speaking to plaintiff during his parenting
time, but he also did not encourage LG to speak to her. Defendant indicated that, because he and
plaintiff only had a limited amount of time with LG, when it is their respective parenting time,
they should have their time alone. Although plaintiff and defendant had always attended LG’s
parent-teacher conferences together prior to the proceedings, and despite plaintiff asking defendant
to attend LG’s 2019 parent-teacher conference with her, defendant refused because he did not think
it was a good idea for them to go together. Thus, the record supports the trial court’s findings.
In conclusion, despite the fact that the trial court’s findings regarding factor (h) were
against the great weight of the evidence, the trial court’s findings regarding factors (d), (e), (f), and
(j) were not against the great weight of the evidence. Thus, the trial court did not abuse its
discretion in concluding that it was in LG’s best interests to grant plaintiff’s motion for change of
domicile.
III. DUE PROCESS
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Defendant contends that the trial court violated his due process rights when it decided to
grant plaintiff’s motion for change of domicile before defendant presented his case. We disagree.
“Due process requires that a litigant be afforded a fair trial of the issues involved in the
controversy and a determination of disputed questions of fact on the basis of evidence.” Hisaw v
Hayes, 133 Mich App 639, 644; 350 NW2d 302 (1984). Defendant contends that he was denied
his ability to present a defense to plaintiff’s motion for change of domicile, and therefore, denied
his due process rights because the trial court decided to grant plaintiff’s motion prior to defendant
presenting any evidence. In support of this argument, defendant contends that the trial judge stated
on the record that, during his in camera review with LG, he told LG that he would be moving to
Alpena, which could be the reason LG had recently displayed abnormal, negative behaviors. The
in camera interview occurred before defendant had finished presenting his evidence in the case.
Defendant, however, misconstrues that trial judge’s statement. During the evidentiary hearing,
while the trial judge was rendering his decision, the judge referenced LG’s recent behavior in
school, stating:
I just want to mention I think he obviously knows what’s going on. I may have told
him it was going to happen in a couple weeks, so my guess is he had a pretty good
idea of what was going to happen. And so I’m sure he’s been kind of on edge, not
sure exactly what day it’s going to be and those kinds of things, and so I’ll take the
blame on that one as I think about it.
The trial judge did not state that he told LG that he would be moving to Alpena or that the court
intended to grant plaintiff’s motion for change of domicile. On the basis of the record, it appears
that the trial judge likely told LG that a decision would be rendered within the next couple of
weeks, which may have caused LG to act out. Defendant was afforded the opportunity to present
his evidence, and there is no indication that the trial court decided to grant plaintiff’s motion for
change of domicile before the conclusion of the evidentiary hearing.
IV. LEGAL ERROR
Defendant also argues that the trial court committed a legal error by failing to address the
best interest factors separately as they related to defendant’s motion to change custody. We
disagree.
If the trial court finds that a change of domicile would modify or alter the child’s
established custodial environment, then the trial court must determine whether the change in
domicile would be in the child’s best interests by determining whether the best interest factors in
MCL 722.23 have been established by clear and convincing evidence. Rains, 301 Mich App at
325. The trial court thoroughly analyzed the best interest factors and concluded that plaintiff
should have full physical custody of LG and it was in LG’s best interests to change LG’s domicile
Defendant provides no legal support for the contention that the trial court was required to conduct
a separate best interest analysis solely to determine whether defendant could establish, by clear
and convincing evidence, that changing the established custodial environment favored defendant
despite the fact that the trial court made a clear ruling on the issue. Thus, defendant has failed to
establish that this Court should remand for the trial court to conduct a separate best interest
analysis.
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Affirmed.
/s/ Karen M. Fort Hood
/s/ Mark J. Cavanagh
/s/ Jonathan Tukel
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