THERESA MARIE AVOURIS V GREGORY VINCENZO RASA
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STATE OF MICHIGAN
COURT OF APPEALS
THERESA MARIE AVOURIS,
UNPUBLISHED
September 17, 2009
Plaintiff-Appellee,
v
No. 291045
Macomb Circuit Court
Family Division
LC No. 2002-002204-DS
GREGORY VINCENZO RASA,
Defendant-Appellant.
Before: Sawyer, P.J., and Cavanagh and Hoekstra, JJ.
PER CURIAM.
Defendant appeals as of right an order granting a motion for change of domicile in favor
of plaintiff. The order permitted plaintiff to move from Utica, Michigan to Wellston, Michigan
with the parties’ minor child. We affirm.
Pursuant to MCL 722.28, “[t]his Court must affirm all custody orders unless the trial
court’s findings of fact were against the great weight of the evidence, the court committed a
palpable abuse of discretion, or the court made a clear legal error on a major issue.” Berger v
Berger, 277 Mich App 700, 705; 747 NW2d 336 (2008). A finding of fact is not against the
great weight of the evidence unless the evidence clearly preponderates in the opposite direction.
Phillips v Jordan, 241 Mich App 17, 20; 614 NW2d 183 (2000). In a child custody context,
“[a]n abuse of discretion exists when the trial court’s decision is so palpably and grossly
violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the
exercise of passion or bias.” Berger, supra at 705.
As an introductory matter, defendant argues that the trial court should have required
plaintiff to show that the change in domicile was in the best interests of the child by clear and
convincing evidence because the child had an established custodial environment with both
parties. We disagree.
Where there is a joint established custodial environment, neither parent’s custody may be
disrupted absent clear and convincing evidence. Sinicropi v Mazurek, 273 Mich App 149, 178;
729 NW2d 256 (2006), citing Foskett v Foskett, 247 Mich App 1, 8; 634 NW2d 363 (2001).
“[T]he trial court is not required to consider the best-interest factors until it first determines that
the [domicile] modification actually changes the children’s established custodial environment.”
Rittershaus v Rittershaus, 273 Mich App 462, 470-471; 730 NW2d 262 (2007). Where the
change in domicile will not affect the established custodial environment, the moving party has
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only “the burden of establishing by a preponderance of the evidence that the change in domicile
is warranted.” Mogle v Scriver, 241 Mich App 192, 203; 614 NW2d 696 (2000).
The parties in this case had joint custody of the child, but plaintiff, the child’s mother,
had full physical custody. The trial court found that an established custodial environment only
existed with plaintiff. Defendant argues that this finding was against the great weight of the
evidence. He contends that the child had an established custodial environment with him as well,
and because of this the trial court clearly erred by not requiring plaintiff to show by clear and
convincing evidence that the change in domicile was in the child’s best interests. This argument
requires a review of whether the trial court’s finding that there was not an established custodial
environment with defendant was against the great weight of the evidence.
MCL 722.27(1)(c) provides:
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.
Whether an established custodial environment exists is a question of fact. Foskett, supra at 8.
An established custodial environment can exist with both parents, even if the child’s primary
residence is with one parent and the same parent provides most of the financial support for the
child. Jack v Jack, 239 Mich App 668, 671; 610 NW2d 231 (2000). Further, an established
custodial environment is one of significant duration, both physical and psychological, “in which
the relationship between the custodian and child is marked by security, stability and
permanence.” Baker v Baker, 411 Mich 567, 579-580; 309 NW2d 532 (1981).
Defendant has not established that the trial court’s finding that an established custodial
environment only existed with plaintiff is against the great weight of the evidence. In
determining that the child’s established custodial environment was with plaintiff, the trial court
noted that the child primarily lived with plaintiff and that he attended school from plaintiff’s
home. The trial court found that both plaintiff and defendant had participated in the child’s
school life and attended doctor’s appointments. However, the trial court also found that the
parties had conducted themselves in a way in which the mother primarily had physical custody.
Although testimony indicated that the child looked to defendant for his needs while in
defendant’s care and there were periods of time where defendant’s time with the child was more
than what was scheduled, defendant can point to no testimony establishing that the child also
looked to him for guidance, discipline, and parental comfort on a day-to-day basis. Their
relationship does not have the characteristic of permanence and stability that is emblematic of an
established custodial environment. See id. Thus, we conclude that the trial court’s finding that
the child’s established custodial environment lay solely with plaintiff was not against the great
weight of the evidence. Therefore, plaintiff only needed to prove that the change in domicile
was warranted by a preponderance of the evidence. See Mogle, supra at 203.
Where, as here, a parent petitions the court to change the legal residence of the child to a
location that is more than 100 miles from the child’s legal residence, the trial court must consider
the following factors, set forth in MCL 722.31(4), before permitting the change:
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(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.
The trial court’s determination that the change in domicile had “the capacity to improve
the quality of life for” plaintiff and the child, as provided in MCL 722.31(4)(a), comported with
the evidence presented at the hearing. The trial court based this finding on plaintiff’s marriage
planned for August 2009 to her fiancé, Michael Gelowski, who lived in Wellston. The trial court
also based this finding on plaintiff’s new employment as an event hostess at the Little River
Casino in Manistee, after she was unable to find suitable employment in the area where she
currently lived. Additionally, the trial court found that the move would improve the quality of
life for the child. It based this finding on the benefit of being in an improved situation with
plaintiff and the quality of the rural environment that the child would be living in.
Defendant argues that the trial court’s finding on this factor went against the great weight
of the evidence. First, defendant argues there was no evidence of a qualitative comparison
between Utica and Wellston schools. Although the trial court did not make any specific findings
about the quality of the schools, the principal of Wellston Elementary did testify that Wellston
was an excellent school that could meet the needs of the parties’ child. The principal noted that
the school was limited in extracurricular activities, but he did state that scouting and baseball
were particularly popular. Further, defendant has presented no evidence to suggest that Wellston
is an inferior school district. Therefore, there is nothing on the record with regard to the school
that would go contrary to the trial court’s quality of life findings.
Defendant also argues that the trial court did not give enough weight to plaintiff routinely
bringing the child to school late. However, the trial court did address the frequent tardiness. It
found that although the tardiness was problematic, there was no evidence that it had affected the
child’s schoolwork or harmed the child in his move from kindergarten to first grade. Further,
this issue has little to do with allowing the change in domicile because there was testimony that
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defendant had been unable to help the child get to school on time because of his own work
schedule.
Defendant also argues that it was impossible for the trial court to make an informed
quality of life finding at all because there was no testimony from or about how Gelowski treated
the child. Although Gelowski was not at the hearing due to a work obligation, there was
testimony from plaintiff that she and Gelowski had scheduled a wedding date for August 2009.
There was also testimony about Gelowski’s family business of rental cabins in Wellston. The
fact that plaintiff was planning to get married to Gelowski was part of the rationale behind the
trial court’s conclusion that she and the child would be improving their quality of life.
Additionally, there is no evidence that Gelowski would mistreat the child. Defendant also
submits that plaintiff’s work schedule is now 2:00 p.m. to 10:00 p.m., not 8:00 a.m. to 4:00 p.m.
However, defendant provides no support for this allegation beyond the bald assertion included in
his brief. Therefore, we conclude that the trial court’s quality of life findings were not against
the great weight of the evidence.
With respect to MCL 722.31(4)(b), the evidence supports the trial court’s findings that
the parties had cooperated with regard to parenting time and that plaintiff’s move to Wellston
was not “inspired by [her] desire to defeat or frustrate the parenting time schedule.” Although
the trial court found that the move would partially impair defendant’s parenting time, it also
found that plaintiff was willing to put forth a lot of effort to provide defendant with adequate
time. The trial court also found that both parties had complied with the existing parenting time
order.
Defendant contends that plaintiff was not adhering to the parenting time order and that
she had further violated it by already moving to Wellston prior to seeking permission. Defendant
testified that he was not receiving adequate time as stated in the order. However, the time
defendant referred to was tied to a provision regarding plaintiff’s work schedule. As the trial
court found, because plaintiff’s work schedule changed, that provision had lapsed in 2005. Also,
there was support for the trial court’s finding that plaintiff had not moved because the principal
of Wellston Elementary testified that the child was not formally enrolled in the school and
plaintiff’s own testimony, which the court found credible. Although there was testimony that she
was offered a job at the Wellston Elementary School that would begin on November 11, 2008,
plaintiff did not take this job. Therefore, the trial court’s finding that both plaintiff and defendant
had complied with the scheduling order was not against the great weight of the evidence.
Given the parties’ past cooperation in relation to parenting time, the trial court also
properly determined that the parties would comply with the modified parenting time order
pursuant to MCL 722.31(4)(c). Defendant does not contest this finding. Moreover, we also
agree with the trial court’s finding that it is “possible to order a modification of the parenting
time schedule” in this case and adequately preserve and foster the parent-child relationship. See
MCL 722.31(4)(c). Defendant argues that the trial court did not make a finding in this regard.
Further, defendant contends it would not be possible to order a modification that would preserve
and foster his relationship with the child.
Despite defendant’s contention, the trial court did make findings on this issue. As the
trial court found, although the distance would be formidable, other avenues of modern
communication technology, including the use of a web cam, would enable defendant to preserve
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and foster a relationship with the child. Further, plaintiff offered to drive to a half way meeting
point to transfer the child to defendant and to let defendant take the child for extended holidays
when his school schedule allowed. Based on this evidence, the trial court did not clearly err by
finding that there was an adequate basis for preserving and fostering the parental relationship
between defendant and the child.
The record also supports the trial court’s finding that defendant’s motivation for opposing
the move was in no way related to a desire to secure a financial advantage with respect to a
support obligation. See MCL 722.31(4)(d). Defendant does not contest this finding. Finally,
with regard to MCL 722.31(4)(e), the trial court found that domestic violence is not an issue in
this case and defendant does not contest this finding.
In sum, based on evidentiary support for the trial court’s findings that the move would
have the capacity to improve the quality of life for plaintiff and the child and that defendant
would be able to foster and preserve a relationship with the child, we conclude that the trial court
did not abuse its discretion in ruling that a change of domicile was warranted under MCL
722.31(4).
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
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