MSC Holds Child Custody Order Not Dispositive of Child's Domicile for No-Fault Actions, Overruling Grange
Frownfelter v Esurance Property & Casualty Insurance Company
Opinion Issued: July 22, 2026
Michigan Supreme Court Docket Nos. 168356; 168357
Author: Justice Brian K. Zahra
The Michigan Association for Justice and the Family Law Section of the State Bar of Michigan filed a joint amicus brief, authored by Liisa Speaker, Elizabeth Parker, and Jordan Ahlers-Smith.
Holding: A custody order does not determine a child’s domicile for purposes of the no-fault act. As the domicile rule set forth in Grange Ins Co of Mich v Lawrence, 494 Mich 475 (2013) requires courts to treat child custody orders as dispositive of the question of domicile, Grange is overruled. When determining a child’s domicile for purposes of priority of insurances under the no-fault act, courts should look to the traditional factors for determining domicile for purposes of no-fault insurance articulated in Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477 (1979), and Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675 (1983) while using the governing child custody order as a starting point of the analysis. When the child’s parents share joint custody, courts should also consider where the child actually spends the majority of their time and where the child actually sleeps most nights of the week. These factors are not exhaustive, and no one factor is dispositive. The Court thus vacated the Court of Appeals opinion and remanded to the Trial Court for further proceedings.
Facts: Plaintiff’s, McKenna Frownfelter, parents divorced in 2011 and their divorce judgment awarded the parents joint physical custody of Plaintiff and her brother. The parents voluntarily deviated from this order in the years following its entry to the point that Plaintiff was spending 75% of her time in her mother’s home, but the parents did not seek to alter their controlling custody order. In January 2020, Plaintiff was injured in an auto accident while driving to school after spending the night in her father’s home. Plaintiff required emergency back surgery and other care to address her injuries.
In October 2020, Plaintiff filed a first-party complaint against Esurance (one of her father’s insurance providers) for violation of the no-fault act. Esurance filed a third-party complaint against Progressive Michigan Insurance Company (father’s insurance), Farmers Insurance Company (father’s insurance), and Auto-Owners Insurance Company (mother’s insurance) in May 2021, arguing that those entities were higher priority insurers and requesting reimbursement. Esurance then moved for summary disposition of Plaintiff’s case, arguing that Plaintiff was domiciled with her mother at the time of the accident, making Auto-Owners the highest priority insurer. Auto-Owners filed a counter motion, arguing that, pursuant to Grange, Plaintiff was domiciled with her father at the time of the accident since the controlling custody order awarded the parents equal custody and there was no dispute Plaintiff had been at her father’s home the night before the accident. The Trial Court agreed with Auto-Owners and denied Esurance’s motion. The Trial Court later determined that, based on Grange and the determination of Plaintiff’s domicile, Plaintiff was a “resident” of her father’s home at the time of the accident, meaning the “step-down” provision in her father’s Esurance policy applied.
Plaintiff appealed both decisions to the Court of Appeals, which affirmed the Trial Court’s rulings in a split decision based on the parents’ divorce judgment and Grange. Plaintiff sought leave to appeal from the Michigan Supreme Court, which granted oral argument on the application and directed the parties to file supplemental briefs addressing “whether the lower courts erred in concluding that: (1) the appellant was domiciled with her father, Corey Frownfelter, at the time of the January 8, 2020 motor vehicle accident, and (2) whether the lower courts erred in concluding that appellant was a resident of Frownfelter’s household at the time of the accident.”
Key Appellate Rulings
Grange wrongly held that a child custody order is solely determinative of a child’s domicile for purposes of the no-fault act.
The Court first explained that the concept of domicile under Michigan law has long been understood to be the place where a person has chosen to make their home with no intention of moving and with the intent to return to after going elsewhere for a long or short period of time. A person may have only one domicile, which can be established in one of three ways. A child’s domicile, due to the child’s inability to form the required intent to establish a domicile by choice, is established by operation of law based on the domicile of the child’s parents. However, in cases where the child’s parents are divorced, living separately, or sharing joint legal custody, “the common law notions of domicile are not neatly applicable.”
Although the question of domicile is essential for determining priority of insurers under the no-fault act, see MCL 500.3114(1),the act itself does not define “domicile.” Instead, courts of this state have developed multi-factor, non-exhaustive tests (such as the tests found in Workman and Dairyland) under the common law to determine domicile for assessing insurer liability. When the question of determining a minor child’s domicile where the child’s parents maintain two separate household came before the Supreme Court in Grange, the Supreme Court, in a departure from this established common law, determined that ““in the event that the child’s parents are divorced and a family court has entered an order relating to custody,…the child’s domicile is established by operation of law and…the custody order is thus determinative of the child’s domicile for all purposes, including the no-fault act.”
The Court determined that this rule was “novel” as it was “an attempt[] to extend the common-law doctrine of domicile by operation of law beyond its logical and practical bounds” and that “concerns about the [Grange] test have been borne out with the passage of time, and this case perfectly illustrates why the Grange majority rule is not only legally flawed but falls far short of addressing the practical realities of postdivorce familial relationships.” The Court concluded that Grange “oversimplified the analysis by holding that domicile attaches by operation of law according solely to the terms of the applicable custody order,” as the Child Custody Act does not give trial courts the authority to establish a child’s domicile within the bounds of a child custody order. The Child Custody Act instead authorizes trial courts to create established custodial environments (which, unlike domicile, can exist in more than one home) with a focus on a child’s best interests. “[B]ecause the considerations inherent in the Child Custody Act are unique to that act and are not neatly transferable to other areas of the law, application of the Grange majority test undermines well-established concepts of domicile law.” The Court also concluded that the Grange test had proven difficult to apply and “is particularly ill-suited for cases in which a custody order grants each parent joint physical custody under MCL 722.26a(7) and creates an equal division of physical custody.” Due to these reasons, the Court held that Grange had been wrongly decided.
Under the McCormick v Carrier stare decisis analysis, Grange should be overruled.
The Court recognized that, although Grange had been wrongly decided, this did not automatically require the Court to overrule Grange. Under the factors set forth in McCormick v Carrier, 487 Mich 180, 211 (2010), the Court held Grange should be overruled. First, while the Grange rule is workable “on paper…in practice, Grange has significant workability problems.” The Court cited several cases from the Court of Appeals which struggled to apply the rule in Grange to similar cases to the facts at issue here, and also acknowledged that there are many situations where the controlling custody order does not reflect the family’s reality. Second, because Grange was only issued 13 years prior to the instant opinion and “it is highly unlikely that parties specifically rely on this Court’s decision in Grange when entering into their insurance contracts,” reliability concerns weighed in favor of overruling Grange. Third, upholding the Grange rule “will result in serious detriment prejudicial to public interests,” as the shifting domicile framework is contrary to public interest as it “seriously hampers divorced parents’ ability to ensure that their children will be properly covered and might, in some instances, lead to catastrophically injured children being uninsured or underinsured.” Lastly, Grange sufficiently departs from the traditional multi-factor approach to ascertaining domicile such that it “created a novel domicile scheme that does not comport with our traditional understanding of domicile.”
Justice Thomas’s Concurrence
Justice Thomas concurred with the majority’s holdings regarding the resolution of the instant case, the critiques of Grange, and that “in determining a minor child’s domicile for purposes of no-fault insurance, a judgment of divorce or other custody orders, while informative, are only a starting point, and courts must consider the factors and circumstances pertinent to a domicile determination for a minor child of divorced parents.” Justice Thomas wrote separately “to highlight the implications of this case for our family courts.” Although Justice Thomas agreed with the majority’s holding and test applied, she expressed her preference would have been to decide the case more narrowly and leave the decision of whether to overrule Grange for a different day, as the portion of Grange relied on by the lower courts was dicta. Justice Thomas expressed concern that many of the parents of the 16,000 children involved in divorce proceedings every year in Michigan and the nearly 70% of cases which involve at least one self-represented party are going to be focused on more important concerns when drafting divorce judgments or child custody orders than their auto-insurance policies. Justice Thomas determined that the instant decision “provides a consistent determination regarding domicile across all cases, helps mitigate, but does not eliminate” the impact of “choices made in the family court during or after a divorce involving minor children.”
