Opinion
No. 344637
03-19-2019
JESSICA MARY DONAKOWSKI, Plaintiff-Appellee, v. RYAN REDDIE, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Alpena Circuit Court Family Division
LC No. 13-005526-DC Before: METER, P.J., and SERVITTO and REDFORD, JJ. PER CURIAM.
In this custody action, defendant-father appeals by right the trial court's order granting plaintiff-mother's motion to change domicile and denying defendant's motion to change physical custody. We vacate the trial court's judgment regarding plaintiff's motion and remand for consideration of whether an established custodial environment existed, but we affirm the trial court's judgment regarding defendant's motion.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff and defendant have one minor child together, who was born in 2013. The trial court awarded plaintiff primary physical custody but joint legal custody along with defendant. Defendant received parenting time every Sunday and Monday from 11:00 a.m. to 3:00 p.m. Holidays were to be shared or alternated. Neither parent could move more than 100 miles from the other parent. In January 2017, on defendant's motion, the trial court entered a stipulation and order in which the parenting-time schedule was to be as agreed upon by the parties. If they were unable to agree, then it was to "be pursuant to the Alpena County Parenting Time Policy." Defendant subsequently exercised parenting time on alternate weekends from Friday until Monday and had alternate midweek visits from Sunday to Tuesday.
In September 2017, plaintiff moved for a change of domicile. Plaintiff had married Jerome Gapeczynski in July 2017, and he recently obtained employment as a police officer in the Sault Ste. Marie Police Department. Plaintiff desired to move herself and the minor child to Sault Ste. Marie to be with her husband and to enable her to obtain a bachelor's degree from Lake Superior State University. Jerome's employment would enable plaintiff to attend school full-time while also giving the minor child her full attention. Plaintiff also desired to move to Sault Ste. Marie so that the minor child could experience the cultural diversity and academic opportunities in the city. Defendant opposed plaintiff's motion and filed a counter-motion seeking to change physical custody of the minor child. He argued that the move should not be permitted; however, if the trial court did permit it, defendant argued alternatively that he should have physical custody of the minor child because the move constituted a change of circumstances.
After holding a hearing on the motions, the trial court denied defendant's motion and granted plaintiff's motion. It is from this order that defendant appeals.
II. CHANGE OF DOMICILE
A. STANDARDS OF REVIEW
"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) (citation omitted). An abuse of discretion occurs when "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 citations omitted). For questions of fact, this Court must not "substitute [its] judgment . . . unless the facts clearly preponderate in the opposite direction." Id. (quotation marks and citation omitted; alteration in original). However, if the trial court makes an error in the law that influences its findings of fact, then this Court's review is not limited to clear error. Id. at 324-325. Finally, for questions of law, this Court reviews the trial court's decisions 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.
B. ANALYSIS
Defendant argues that the trial court erred when it failed to consider whether a custodial environment existed and, if so, whether plaintiff's proposed move would modify or alter this custodial environment. We agree.
The Child Custody Act of 1970, MCL 722.21 et seq., governs change of domicile actions. MCL 722.31(1) states in pertinent part:
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.This Court previously enumerated the four steps that a trial court must undertake in deciding a motion to change 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
so-called D'Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. [Rains, 301 Mich App at 325 (emphasis added).]In other words, the trial court must consider the five factors articulated in MCL 722.31(4), and after determining that the plaintiff established that the factors weigh in favor of a domicile change, the trial court must determine whether an established custodial environment exists. If so, then the trial court must determine whether the domicile change would modify or alter the established custodial environment.
In the present case, the trial court considered the MCL 722.31(4) factors. However, after concluding that the factors weighed in favor of the proposed domicile change, the trial court ended its analysis without undertaking the remaining steps in the required analysis. The trial court did not articulate its analysis or conclusion regarding whether an established custodial environment existed. Therefore, the trial court committed clear legal error. See Rittershaus v Rittershaus, 273 Mich App 462, 469-471; 730 NW2d 262 (2007) (holding that the trial court erred by "failing to determine whether granting plaintiff's motion for a change of domicile would result in a change of an established custodial environment, thus requiring the trial court to also address and analyze the best-interest factors.").
Clear legal error requires remand for the trial court to apply the " 'proper legal framework,' unless the error is harmless." Sulaica, 308 Mich App at 585, quoting Rains, 301 Mich App at 331. If the trial court "fails to make a finding regarding the existence of a custodial environment, this Court will remand for a finding unless there is sufficient information in the record for this Court to make its own determination of this issue by de novo review." Rittershaus, 273 Mich App at 471 (quotation marks and citations omitted). "The established custodial environment is the environment in which 'over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.' " Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d 480 (2010), quoting MCL 722.27(1)(c). A custodial environment can be established in more than one home. Rittershaus, 273 Mich App at 471.
In the present case, the record is insufficient for this Court to determine de novo whether an established custodial environment existed with one or both parents of the child. See Sulaica, 308 Mich App at 585 (holding that the record was insufficient to decide if the failure to consider whether an established custodial environment existed was harmless error). Moreover, even if we were to hold otherwise, we believe that the record is also insufficient to determine whether plaintiff's move would modify or alter any established custodial environment with defendant. The limited testimony presented at the hearing related primarily to the D'Onofrio factors. On remand, the trial court must make additional findings to determine the established custodial environment.
Additionally, on remand, the trial court shall follow the steps set forth in Rains which instructs:
A motion for a change of domicile essentially requires a four-step approach. First, a trial court must determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4), the so-called D'Onofrio factors, support a motion for a change of domicile. Second, if the factors support a change in domicile, then the trial court must then determine whether an established custodial environment exists. Third, if an established custodial environment exists, the trial court must then determine whether the change of domicile would modify or alter that established custodial environment. Finally, if, and only if, the trial court finds that a change of domicile would modify or alter the child's established custodial environment must the trial court determine whether the change in domicile would be in the child's best interests by considering whether the best-interest factors in MCL 722.23 have been established by clear and convincing evidence. Rains, 301 Mich App at 325.
III. CHANGE OF CUSTODY
A. STANDARDS OF REVIEW
This Court reviews custody decisions for an abuse of discretion. Vodvarka v Grasmeyer, 259 Mich App 499, 507-508; 675 NW2d 847 (2003). For findings of fact, this Court applies the great weight of the evidence standard. Id. at 507. The trial court's findings on an established custodial environment and the custody factors "should be affirmed unless the evidence clearly preponderates in the opposite direction." Id. (citation omitted). "Questions of law are reviewed for clear legal error." Id. at 508 (citation omitted). Clear error occurs when the trial court "incorrectly chooses, interprets, or applies the law." Id. (citation omitted).
B. ANALYSIS
Defendant argues that the trial court erred in summarily denying his motion to change physical custody without considering the best-interest factors. We disagree because the trial court determined that there was no proper cause or change of circumstances.
A trial court may "modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances," if clear and convincing evidence establishes that the modification would be in the child's best interests. MCL 722.27(1)(c). "[P]roper cause means one or more appropriate grounds that have or could have a significant effect on the child's life to the extent that a reevaluation of the child's custodial situation should be undertaken." Vodvarka, 259 Mich App at 511. "[T]o establish a 'change of circumstances,' a movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the child, which have or could have a significant effect on the child's well-being, have materially changed." Id. at 513 (emphasis omitted). To constitute a change of circumstances under MCL 722.27(1)(c), "the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child, and there must be at least some evidence that the material changes have had or will almost certainly have an effect on the child." Id. at 513-514.
When a party seeks a change in custody or proposed change in the previous judgment, the party must first show by a preponderance of the evidence that either proper cause or change of circumstances has occurred to warrant the change. Vodvarka, 259 Mich App at 508-509. In Vodvarka, this Court explained that:
The movant, of course, has the burden of proving by a preponderance of the evidence that either proper cause or a change of circumstances exists before the trial court can consider whether an established custodial environment exists (thus establishing the burden of proof) and conduct a review of the best interest factors. [Id. at 509 (citation omitted).]
In the present case, the trial court found that defendant failed to establish proper cause or change of circumstances. The trial court, therefore, had no obligation to consider the best-interest factors. Defendant further argues that he was entitled to an evidentiary hearing, but a trial court is not required to hold an evidentiary hearing on whether there is proper cause or a change of circumstances. See Lieberman v Orr, 319 Mich App 68, 102; 900 NW2d 130 (2017).
We vacate the trial court's judgment regarding plaintiff's motion, affirm the trial court's judgment regarding defendant's motion, and remand for proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ James Robert Redford
D'Onofrio v D'Onofrio, 144 NJ Super 200; 365 A2d 27 (1976).