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Dissent Presents Effective Argument for Allowing Change of Residence

Posted on Friday, May 18, 2018

 The Michigan Court of Appeals, in Hund v Hund, No.334313, a divided opinion, affirmed a lower court order that denied defendant-mother’s request to change the legal residence of the child, OMH, to Canada while granting plaintiff-father’s motion for primary physical custody. The dissenting opinion, written by Hon. Michael Gadola, argued that a change of domicile to Canada was warranted and that the lower court abused its discretion by granting the father’s motion for change of custody.

Facts: 

The Hunds divorced in 2013. The parties agreed to joint legal custody of their child, OMH, the mother having primary physical custody while the father had parenting time. Time passed and the mother met and married Ryan Tiernay who lived in Sarnia, Ontario, Canada. At the time mother lived in Howell and father lived in Pinckney. The mother filed a motion in the court to change the child’s legal residence to Sarnia when the father wouldn’t allow the child to move. Following a two-day hearing, the referee recommended:

  • Denial of defendant-mother’s motion to change domicile because she failed to show by a preponderance of the evidence that the factors in MCL 722.31(4) supported the move, and
  • A grant of the plaintiff’s motion to change custody because the plaintiff proved by clear and convincing evidence that the change was in the child’s best interest.

The defendant objected to the recommendation, however, the trial court adopted the recommendations. The Court of Appeals affirmed the trial court.

The dissent:

Why are dissenting opinions important? The reasoning in a dissent, such as the extensive one written by Judge Gadola, can, over time, a convince a majority of the court. In that case, the original majority decision can be overruled.

Defendant’s Motion for Change of Domicile

The opinion begins with Judge Gadola’s statement that “…defendant’s proposed move to Sarnia, Ontario, Canada should not have triggered the application of MCL 722.31 (1)” which states:

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.

Judge Gadola argued that the distance used for assessing the applicability of the above section is measured in radial not road miles. (Bowers v VanderMeulenBowers, 278 Mich App 287, 294; 750 NW2d 597 (2008). The radial distance from the Pinckney residence to the furthest outer edge of Sarnia is only approximately 90 miles. However, the opinion notes that the original custody order in this matter prohibits moving the child out of the state without permission of the court regardless of the distance. Indicating that, had he not been constrained by case law (Gagnon v Glowacki, 295 Mich App 557, 566; 295 NW2d 557 (2012) which supports the prohibition against moving out of state regardless of the number of miles, he would hold that defendant should not have been subject to an inquiry under MCL 722.31.

Even so, after reviewing the factors in MCL 722.31(4), he concluded that the trial court’s findings regarding the statutory change-of-domicile factors went against the great weight of the evidence. Looking at each in turn, Judge Gadola wrote “All things considered, it appears that the trial court found that all of the change-of-domicile factors other than MCL 722.31(4)(a) were neutral, and, in my opinion, these findings were not against the great weight of the evidence.”

Looking at (a) which states “Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.” Judge Gadola argued that the testimony showed that Tiernay’s income would allow defendant mother to stay at home, the move to Sarnia would provide the child with a high-quality education, bring him closer to his extended family and that he had developed a close relationship with his step-family. All these factors, said the opinion, would improve his quality of life. “Considering this evidence, the trial court’s finding that defendant’s proposed move did not have the capacity to improve the child’s life was against the great weight of the evidence.”

Plaintiff’s Motion to Change Custody

Majority applies an improper legal framework

Judge Gadola first noted that because plaintiff was seeking to modify custody, the trial court was not permitted to revisit the existing custody order and assess the child’s best interests unless plaintiff first established proper cause or a change of circumstances under the restrictive standard set forth in Vodvarka v Grasmeyer, 259 Mich App 499, 509-514; 675 NW2d 847 (2003). The majority opinion fails to address this threshold inquiry before concluding that the child had an established custodial environment with both parents and discussing the trial court’s best-interest analysis under MCL 722.23. “Accordingly, the majority applies an improper legal framework for reviewing plaintiff’s motion to change custody.”
Plaintiff can’t reopen custody matter

 “I further believe that the trial court abused its discretion by granting plaintiff sole physical custody of the child. Under the Child Custody Act, a party moving to modify an existing child custody order must first establish proper cause or a change of circumstances before the trial court may reopen the custody matter and hold a hearing to assess whether the proposed modification is in a child’s best interests.”

In this case, Judge Gadola noted that the changes that occurred in the child’s life were the normal life changes the occur during the life of a child and don’t warrant a change of custody. “Applying the proper threshold inquiry, plaintiff failed to demonstrate proper cause or a change of circumstances under Vodvarka sufficient to allow the trial court to reopen the custody matter.”

Looking at each factor

The trial court found that an established custodial environment existed with both parents and that awarding plaintiff sole physical custody could alter that environment. When a change of custody affects a child’s established custodial environment, the proponent of the change bears the burden of proving by clear and convincing evidence that the change is warranted under the best-interest factors in MCL 722.23.

The trial court concluded that plaintiff proved by clear and convincing evidence that the change of custody was in the child’s best interests after finding that factors (b), (c), (d), (e), (h), and arguably (l) favored plaintiff, while all other factors were neutral. The COA agreed.

Judge Gadola, after analyzing each factor in turn, wrote “In my opinion, these factors should have been considered either neutral or as favoring defendant. Plaintiff did not present any evidence that would rise to the level of “clear and convincing” to support a change of the child’s physical custody.

Conclusion:

\Judge Gadola concluded that “Nothing from the facts of this case would support by clear and convincing evidence that a disruptive change of the child’s physical custody was warranted. Accordingly, I would additionally hold that the trial court abused its discretion by granting plaintiff’s motion to change custody.”

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