CARLEEN J BASA V ANDREW J BASA
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STATE OF MICHIGAN
COURT OF APPEALS
CARLEEN J. BASA, f/k/a CARLEEN J. GAUTZ,
UNPUBLISHED
August 4, 2009
Plaintiff-Appellee,
v
No. 287311
Livingston Circuit Court
LC No. 05-037123-DM
ANDREW J. BASA,
Defendant-Appellant.
Before: Meter, P.J., and Murray and Beckering, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s order granting plaintiff’s motion to change
domicile of the parties’ two minor children from Howell, Michigan to Alexander, Arkansas. We
reverse and remand for further proceedings consistent with this opinion.
I
The parties were married in 1998 and lived together in Howell. Two children were born
of the marriage: Chloe, born September 1999, and Karl, born June 2002. In 2003, the parties
separated, and they were divorced on January 5, 2006. A default judgment of divorce awarded
the parties joint legal custody, plaintiff was awarded primary physical custody, and defendant
was given “reasonable and liberal” parenting time. On July 5, 2007, citing economic hardship,
plaintiff moved in the trial court to change domicile of the minor children from Howell to
Arkansas where her parents were located. In August 2007, before the motion was heard, plaintiff
quit her job, left the minor children in defendant’s care, and moved to Arkansas.
In January 2008, the trial court held a two-day evidentiary hearing to address the change
of domicile factors pursuant to MCL 722.31(4). The trial court found that plaintiff met her
burden under the statute and specifically found that a joint custodial environment existed with
both parties. The trial court later held a best interests hearing in April 2008, during which
plaintiff testified that she had obtained full-time employment in Arkansas earning $16 an hour.
In August 2008, the trial court reversed its earlier determination that a joint custodial
environment existed and held that, because there was no established custodial environment with
defendant, no best interests analysis was required. It granted plaintiff’s motion to change
domicile.
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II
Defendant argues on appeal that the trial court erred in applying the change of domicile
factors under MCL 722.31(4) and determining that the change of domicile was warranted. We
agree. A trial court’s findings in applying the factors under MCL 722.31(4) are reviewed under
the great weight of the evidence standard. Brown v Loveman, 260 Mich App 576, 600; 680
NW2d 432 (2004). Under that standard, we will affirm a trial court’s factual findings “unless the
evidence clearly preponderates in the opposite direction.” Mogle v Scriver, 241 Mich App 192,
196; 614 NW2d 696 (2000). A trial court’s decision on a request for a change of domicile is
reviewed for an abuse of discretion. Grew v Knox, 265 Mich App 333, 339; 694 NW2d 772
(2005).
MCL 722.31(4) states as follows:
(4) Before permitting a legal residence change otherwise restricted by subsection
(1),[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. [Emphasis added.]
1
MCL 722.31(1) states, in 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.”
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“The moving party has the burden of establishing by a preponderance of the evidence that the
change in domicile is warranted.” Mogle, supra at 203.
With regard to factor (a) the trial court found that the change in domicile had the capacity
to improve the lives of the children and plaintiff primarily because the move would provide
financial stability for plaintiff. We find that the trial court’s concerted focus on defendant’s
financial weaknesses in its application of this factor does not comport with the statute’s
requirement that the court conduct its review “with the child as the primary focus . . . .” MCL
722.31(4) (emphasis added). In addition, we conclude on the record before us that some of the
court’s findings under factor (a) are against the great weight of the evidence. The court found
that defendant failed to provide “consistent or adequate financial support for the children during
and after the marriage” and that defendant failed to pay “regular and consistent” child support.
Both of these findings are against the great weight of the evidence. Plaintiff testified that during
the marriage and before the parties were separated, defendant worked up to three jobs at a time to
provide for the family. Essentially, the trial court critiqued defendant’s inability to establish
economic independence and ultimate necessity to move in with his father as failure to provide
for the children, while it critiqued plaintiff’s similar inability to establish economic independence
and necessity to live with her parents in Arkansas as the establishment of “financial stability.”
Additionally, evidence showed that defendant always made his child support payments except
for one period when he lost his job, and that he worked to repay one-third of the arrears after
obtaining employment. Plaintiff forgave the remainder of the arrears. In addition, when plaintiff
was struggling financially, defendant offered to care for the children and plaintiff’s son by
another relationship, Damien. The court also critiqued defendant’s missed child support
payments as a failure to provide for his children, yet the court failed to consider that plaintiff did
not offer any financial support for the children during the entire year she left the children in
defendant’s care and resided in Arkansas. The trial court’s finding that defendant’s ability to
provide suitable housing was “in question” is also against the great weight of the evidence.
Defendant testified that church assistance allowed his father to avoid foreclosure on his home,
where defendant and the children resided. But, even if defendant’s father lost his home at some
point, the evidence established that defendant and his wife had sufficient income to provide
suitable, alternative housing.
The court also erred in its review of factor (a) when it overemphasized plaintiff’s
improved life in Arkansas instead of focusing on the benefits to the children from the move.
Instead of focusing on defendant’s failures and plaintiff’s improved financial stability, the trial
court should have focused its analysis on whether a $4.34 hourly wage increase and proximity to
plaintiff’s parents had the capacity to improve the children’s lives even though the move would
result in a loss of the continued presence of defendant in their everyday lives, connection to the
community where they lived since birth, and ties to family living in Michigan.
With regard to factor (b), the court found that following the “separation and divorce,”
defendant did not exercise “consistent parenting time.” We find that the trial court erred in
applying this factor and that its findings are against the great weight of the evidence. The statute
requires an inquiry into “[t]he degree to which each parent has complied with, and utilized his or
her time under, a court order governing parenting time with the child . . . .” MCL 722.31(4)(b)
(emphasis added). The trial court’s inquiry should have been limited to whether defendant
exercised “reasonable and liberal” parenting time as provided by the default judgment of divorce.
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The trial court’s finding that defendant failed to exercise “consistent parenting time” after the
judgment of divorce was entered is against the great weight of the evidence. While there was a
short period of time where defendant did not have contact with the children, he cared for them,
on average, two to three overnights every week and alternating weekends from summer 2006
until August 2007. From August 2007 forward, defendant provided full-time parental care for
the children while plaintiff was in Arkansas.
With regard to factors (c), (d), and (e), we conclude that the trial court’s findings are not
against the great weight of the evidence. Nevertheless, we conclude that the trial court abused its
discretion in granting the motion to change domicile where its decision rested on erroneous
findings as to the other factors. On remand, the trial court must reconsider the factors set forth in
MCL 722.31(4) and determine whether plaintiff established by a preponderance of the evidence
that a change of domicile is warranted. Mogle, supra at 203. Assuming that plaintiff can meet
her burden on remand, we consider defendant’s other issues on appeal.
III
After applying the factors in MCL 722.31(4), as set forth above, and before granting a
motion to change domicile, a trial court must determine “whether granting [the] plaintiff’s
motion for a change of domicile would result in a change of an established custodial
environment . . . .” Rittershaus v Rittershaus, 273 Mich App 462, 470; 730 NW2d 262 (2007).
If the trial court finds that a custodial environment exists with the non-moving party, “[t]he issue
then becomes whether . . . [the] proposed parenting time schedule effectively amount[s] to a
change in the established custodial environment so as to require an inquiry into the best interest
factors . . . .” Brown, supra at 596. If the relocation amounts to a change in an established
custodial environment, the moving party then has the burden of proving by clear and convincing
evidence that the proposed change in domicile is in the children’s best interests. Id.
Defendant argues that the trial court erred in determining that no custodial environment
existed with defendant and that no best interests analysis was required. Again, we agree. The
determination whether a custodial environment exists involves a question of fact, Rittershaus,
supra at 471, which we review under the great weight of the evidence standard, Fletcher v
Fletcher, 447 Mich 871, 876-877; 526 NW2d 889 (1994).
MCL 722.27(1)(c) states, in pertinent part:
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. [Emphasis added.]
In this case, the trial court’s determination that no custodial environment existed with
defendant was against the great weight of the evidence. Here, the record evidence showed that,
since their birth, defendant has been actively involved in the children’s lives, at least the majority
of the time. Defendant resided with Chloe for the first three years of her life and Karl for the
first year of his life. Defendant has consistently provided financial support for the children, with
the exception of one period when he was unemployed, visited with the children, and provided
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parental care for the children. For approximately one year before plaintiff moved to Arkansas,
defendant, on average, had two to three overnight visits with the children every week in addition
to his parenting time on alternating weekends. After plaintiff moved to Arkansas the children
resided with defendant full time for approximately one year before the trial court issued its order
permitting the change of domicile in August 2008. During that year, defendant was essentially
the only parent involved in the children’s daily lives, and he was solely responsible for meeting
all of the children’s financial and material needs without receiving any support from plaintiff.
Defendant, his new wife, or a caretaker would transport the children to and from school every
weekday where they were performing well, and defendant’s workplace accommodated the
children’s school schedule as needed. Defendant and his wife helped the children with their
schoolwork, and defendant brought the children to Sunday school at a local church and
introduced Chloe to a youth group at the church. In addition, defendant testified that the children
felt free to communicate their concerns to either him or his wife. Furthermore, the children’s
psychologist testified that Chloe did not want to leave defendant and move to Arkansas; she was
fearful of not being able to see defendant again.
The trial court’s reasoning in support of its determination that no custodial environment
existed with defendant is unpersuasive and lacks legal merit. The court referenced “additional
testimony” at the evidentiary hearing in April to support its determination, yet it did not indicate
what additional testimony established that Chloe and Karl did not look to defendant for
“guidance, discipline, the necessities of life, and parental comfort.” MCL 722.27(1)(c).
Additionally, the court reasoned that the children’s living arrangement in the year preceding the
court’s order changing domicile was only temporary and that all parties involved were aware of
this. However, reasoning that the nine-year-old and six-year-old children would refrain from
looking to defendant for “guidance, discipline, the necessities of life, and parental comfort”
merely because the court was eventually going to enter an order is attenuated at best. Moreover,
the reasoning is contrary to established law. A custodial environment can be established as a
result of a temporary arrangement. Berger v Berger, 277 Mich App 700, 707; 747 NW2d 336
(2008). The trial court also failed to cite anywhere in the Child Custody Act, MCL 722.21 et
seq., to support the proposition that public policy, something relied on by the trial court, is an
appropriate consideration in determining whether a custodial environment exists. Finally, the
trial court’s reliance on case law was misplaced.
Because we find that there was an established custodial environment with both plaintiff
and defendant, the trial court was required to determine whether the proposed parenting
arrangement would change that custodial environment. Brown, supra at 596. On this record, we
find that parenting time during summer vacations and alternating holidays would result in a
change in the custodial environment with defendant, who had full time care of the children at the
time the order was issued and had substantial, regular contact before that time. Therefore, the
trial court was required to conduct a review of the statutory best interest factors, MCL 722.23, to
determine if plaintiff established by clear and convincing evidence that the change in domicile is
in the children’s best interest. Brown, supra at 596. The trial court did not do so. Rather, it
made findings of fact regarding the best interest factors, stated the findings were really
unnecessary, and failed to weigh the factors using the appropriate burden of proof.
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IV
Defendant also argues on appeal that the trial court’s findings with regard to several of
the statutory best interest factors were erroneous. A trial court’s application of the statutory best
interest factors involves findings of fact, which we review under the great weight of the evidence
standard. Fletcher, supra. On review of the record, we find that several of the court’s factual
findings were against the great weight of the evidence because the evidence clearly
preponderates in the opposite direction.
We first find several underlying factual findings by the trial court to be against the great
weight of the evidence, although the ultimate findings on the factors related to those findings
were not. See MCL 722.23(a), (b), and (e). With respect to factor (a), which concerns “[t]he
love, affection, and other emotional ties existing between the parties involved and the child,”
MCL 722.23(a), the trial court found that defendant exercised inconsistent parenting time during
the months before plaintiff moved to Arkansas. In fact, the record revealed that defendant
exercised parenting time on average of two to three days every week and alternating weekends
for almost one year before plaintiff moved to Arkansas. Nevertheless, the finding that factor (a)
favored defendant with respect to Chloe and was equal for both parties with respect to Karl was
not against the great weight of evidence.
With respect to factor (b), concerning “[t]he 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,” MCL 722.23(b), the trial court weighed this
factor equally between both parties. In doing so, it found that religion was not a significant part
of the children’s lives, that “concerns” during the time period when plaintiff was the children’s
primary caregiver were caused in significant part by defendant, and that there was “little
evidence to demonstrate [defendant’s] capacity or willingness to provide the children with love,
affection or guidance.” These underlying factual findings are against the great weight of the
evidence. During the nearly year-long period that the children lived with defendant, they
attended Sunday school and Chloe attended a Wednesday youth group at a local church. In
addition, the trial court failed to articulate the “concerns” that were caused by defendant and did
not consider defendant’s offer to provide full-time care for the three children while plaintiff was
experiencing financial difficulties in Michigan. Furthermore, the evidence shows that defendant
demonstrated a capacity and willingness to provide love, affection and guidance to the children
by caring for them full time, without issue, for a year before the trial court’s ruling. Initially,
defendant resided with the children and plaintiff, and he would work multiple jobs to ensure his
family had income and allow plaintiff to be a stay-at-home mother. Following the parties’
separation, plaintiff and the children spent weekends at defendant’s apartment, and thereafter
defendant had overnight visits with the children on Wednesdays and every other weekend.
While there was a period of a few months where defendant was absent from the children’s lives,
his involvement increased in the summer of 2006. He was caring for them two to three times a
week plus every other weekend, and he eventually became their full-time parent. However,
while there were several erroneous factual findings by the trial court, its ultimate finding that the
parties were equal on this factor was not against the great weight of the evidence.
Factor (e) concerns “[t]he permanence, as a family unit, of the existing or proposed
custodial home or homes.” MCL 722.23(e). The trial court weighed this factor equally between
both parties after noting that both plaintiff’s and defendant’s living arrangements are familiar to
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and consistent for the children. The trial court’s underlying findings as to factor (e) are against
the great weight of the evidence in that they are incomplete and fail to consider the beneficial
and negative aspects of uprooting the children from the Howell community. More importantly,
the finding failed to consider Chloe’s feelings of abandonment by plaintiff. This fact concerns
the permanence of the family unit and should have been considered. Nevertheless, on the record,
the ultimate finding that the parties were equal on this factor was not against the great weight of
the evidence.
With respect to factors (c), (d), and (j), we conclude that there were underlying factual
findings that were against the great weight of the evidence and the ultimate factual findings were
also against the great weight of the evidence. Factor (c) concerns “[t]he 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.” MCL 722.23(c). The trial court weighed this factor in favor of plaintiff after
finding, in part, that “[defendant’s] financial support of the children during the marriage and after
the divorce has been inadequate and inconsistent.” The trial court’s finding regarding
defendant’s financial support of the children is against the great weight of the evidence, as is the
ultimate finding that this factor favored plaintiff. From 2000 to 2003, defendant worked up to
three jobs to provide for the family, and he was their only source of income. With the exception
of one period where he was unemployed, he always paid child support. Furthermore, defendant
offered to provide full-time care for the children when plaintiff was struggling financially in
Michigan. After plaintiff moved to Arkansas defendant was the sole source of income for the
children while plaintiff, despite earning more than defendant, failed to offer any support to the
children during the year she resided there. With regard to medical care, there is nothing in the
record that suggests defendant was deficient in ensuring that the children’s medical needs were
met. The evidence clearly preponderated in finding the parties equal under factor (c).
With respect to factor (d), “[t]he length of time the child has lived in a stable, satisfactory
environment, and the desirability of maintaining continuity,” MCL 722.23(d), the trial court
weighed this factor in favor of plaintiff and found that the children’s needs would be met while
living in Arkansas. The trial court also found that “[i]t is unclear” whether defendant’s father’s
home will be maintained,” and it noted the negative aspects of defendant’s work schedule.
These findings are against the great weight of the evidence. The trial court failed to cite facts in
the record that support the contention that the living arrangement in Arkansas, where the children
will be separated from defendant, will serve to meet their emotional needs. The trial court’s
findings concerning defendant’s living arrangements are unsupported by the evidence, and the
trial court failed to reference the negative aspects of plaintiff’s work hours in Arkansas, which
would provide her with limited time for the children as well. Additionally, the trial court failed
to consider the beneficial and negative aspects of removing the children from the Howell
community, where they have established ties to the community through school and church, and
where they are close to extended family. The evidence clearly preponderated in favor of
defendant with respect to factor (d) where he had maintained the children in their home
community, in a single residence with his father, and in close proximity to their known schools
and church.
Finally, factor (j) concerns “[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
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parent or the child and the parents.” MCL 722.23(j). In weighing this factor in favor of plaintiff,
the trial court found, in part, that defendant did not return plaintiff’s telephone calls after she
moved to Arkansas or help the children communicate with plaintiff, and noted that defendant and
his wife scheduled their wedding on a date when plaintiff planned to meet with Chloe for a
counseling session. In addition, the court found that defendant made demeaning comments
about plaintiff. The trial court’s underlying findings with respect to this factor are against the
great weight of the evidence as is the ultimate finding that the factor favored plaintiff. The trial
court failed to consider whether plaintiff’s move to Arkansas, as opposed to attempting to
establish herself in Michigan, facilitated the children’s relationship with defendant. In addition,
in its application of the next factor (factor (k)), the trial court noted that both parties made
“demeaning comments to the other,” yet the court only referenced the demeaning comments
made by defendant in its analysis of this factor. Furthermore, in regard to its finding that
defendant failed to answer or return plaintiff’s telephone calls, the trial court failed to consider
that, at the best interest hearing, plaintiff acknowledged that the children were made available to
her for telephone calls and agreed that her contact with the children was going well and that her
calls were returned “most of the time . . . unless something comes up with the schedule or they’re
working late.” In addition, plaintiff acknowledged that, after the first court session, Chloe went
through a phase where she did not want to speak with plaintiff on the telephone. Defendant
testified that he encouraged the children to speak with plaintiff on the telephone and plaintiff had
visitation with the children over the Christmas holiday in 2007. There is no indication that
defendant interfered with this visit, or that plaintiff wanted to travel to Michigan to visit with the
children at any other time after she moved to Arkansas. With respect to defendant’s wedding
plans, the trial court failed to consider both that plaintiff had ample notice of the cancellation,
and that the wedding was planned before defendant was informed of the counseling session.
These facts do not suggest that defendant deliberately interfered with plaintiff meeting Chloe for
therapy as the trial court implied in its order. The evidence clearly preponderated in a finding
that this factor was equal to both parties.
With respect to the remaining factors, we conclude that the trial court’s findings are not
against the great weight of the evidence. On remand, assuming the trial court finds that plaintiff
has established by a preponderance of the evidence that a change of domicile is warranted, the
court needs to reconsider, on the record as a whole, its findings with respect to factors (c), (d),
and (j), and it needs to apply the appropriate clear and convincing burden of proof when
weighing whether a change in the custodial environment is in the children’s best interests.
Brown, supra at 596.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Patrick M. Meter
/s/ Jane M. Beckering
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