KAREN S ELLSWORTH V KURT LEE SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
KAREN S. ELLSWORTH,
UNPUBLISHED
February 23, 2010
Plaintiff-Appellant,
v
No. 294002
Alpena Circuit Court
LC No. 00-000970-DC
KURT LEE SMITH,
Defendant-Appellee.
Before: Fitzgerald, P.J., and Cavanagh and Davis, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order authorizing the domicile of the
parties’ child to remain in Maryland until further order, and increasing defendant’s parenting
time. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Plaintiff and defendant are the parents of a son, Kameron (DOB 3-15-98). In an order
entered on January 27, 2000, the trial court awarded plaintiff sole legal and physical custody of
Kameron, and granted defendant “reasonable and liberal” parenting time. A stipulated order
entered on September 24, 2004, provided that plaintiff would continue to have sole legal and
physical custody of Kameron, and that defendant would have parenting time pursuant to a
specified schedule. In an order entered on July 10, 2006, the trial court granted defendant an
additional four overnights of parenting time. The order specified that all other terms of the
September 24, 2004, stipulated order remained in effect.
In June 2007, plaintiff filed a motion to change Kameron’s domicile to Maryland.
Plaintiff noted that she had graduated from Thomas Cooley Law School, and had been accepted
at the University of Baltimore’s Law School to complete an LLM degree in tax law. The trial
court held a hearing on June 19, 2007, and in a subsequent written opinion and order entered on
July 5, 2007, granted plaintiff’s motion on a conditional basis. The court considered the factors
set out in MCL 722.31(4),1 and concluded that the change of domicile was warranted for a period
1
These factors, i.e., whether the proposed change of domicile had the capacity to improve the
quality of life for the child and the relocating parent; whether the relocating parent’s plan to
(continued…)
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of two years. The order provided that if after two years plaintiff wished to continue living with
Kameron in a state other than Michigan, plaintiff would be required to seek approval from the
court to do so. On December 21, 2007, the trial court entered an amended order making certain
changes to defendant’s parenting time schedule.
In May 2009, defendant filed a motion to review the December 2007 amended order.
Defendant noted that plaintiff had informed him that she wished to make her move to Maryland
permanent. Defendant asserted that that would not be in Kameron’s best interests, and requested
that the court order plaintiff and Kameron to return to Michigan. In the alternative, defendant
requested that the court review the parenting time provisions of the amended order, and grant
him additional parenting time during Kameron’s summer vacation and Christmas break.
The trial court held a hearing on defendant’s motion; plaintiff was not present at the
hearing because her adult son (who is not connected to this case) was undergoing chemotherapy
treatments. In an amended order entered on August 19, 2009, the trial court ordered that
Kameron’s legal residence would remain in Maryland until further order of the court, and would
not change absent a petition and hearing. The trial court also made certain adjustments to
defendant’s parenting time schedule. It is this order from which plaintiff appeals.
On appeal, plaintiff first argues that the trial court erred in granting defendant additional
parenting time without first determining whether a change of circumstances had occurred,
determining a custodial environment, and considering the statutory best interest factors. We
disagree.
The Child Custody Act, MCL 722.21 et seq., governs parenting time decisions. “MCL
722.27a(1) requires that parenting time ‘“shall be granted in accordance with the best interests of
the child.”’ Berger v Berger, 277 Mich App 700, 716; 747 NW2d 336 (2008). We review a
parenting time order de novo, but “must affirm the trial court unless its 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.” Id.; see also MCL 722.28.
Plaintiff has conflated the procedure for seeking a change of custody with that for seeking
a modification of parenting time. The procedure for seeking a change of custody is as follows:
A party that seeks a change in custody has the initial burden of
establishing, by a preponderance of the evidence, that either proper cause or a
change of circumstances exists to warrant a change in custody. MCL
722.27(1)(c); Vodvarka v Grasmeyer, 259 Mich App 499, 509; 675 NW2d 847
(…continued)
change the child’s domicile is motivated by a desire to frustrate or defeat the other parent’s
parenting time schedule; whether a modification of parenting time could be accomplished in
order to preserve and foster the relationship between the child and each parent; whether the
parent opposing the change is motivated by a desire to secure a financial advantage; and whether
the child has suffered or witnessed any domestic violence, are commonly referred to as the
“D’Onofrio” factors, after D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27
(1976), the case in which they were enumerated.
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(2003). Thereafter, the trial court then determines whether an established
custodial environment exists and analyze[s] the best-interest factors set forth in
MCL 722.23. Id. If the court finds that an established custodial environment
exists, it may not change the established custodial environment unless it finds
clear and convincing evidence that a change of custody is in the child’s best
interest. MCL 722.27(1)(c). See also Dumm v Brodbeck, 276 Mich App 460,
462; 740 NW2d 751 (2007). [Powery v Wells, 278 Mich App 526, 527-528; 752
NW2d 47 (2008).]
Defendant’s motion to review the December 2007 amended order did not seek a change of
custody, and his requested modification of parenting time was not so extensive that it would have
changed Kameron’s established custodial environment. Therefore, the trial court was not
required to conduct the extensive inquiry required by a motion for change of custody. Powery,
278 Mich App at 528.
A court “shall” grant parenting time “in accordance with the best interests of the child.”
MCL 722.27a(1). A court “may” consider various enumerated factors “when determining the
frequency, duration, and type of parenting time to be granted[.]” MCL 722.27a(6). In this case,
the trial court considered defendant’s request for increased parenting time, and granted an
increase of what seems to amount to a couple of weeks spread throughout the year. Plaintiff
does not specifically contend that this increase in defendant’s parenting time was not in
Kameron’s best interests.
Nothing on the record establishes that the trial court made factual findings against the
great weight of the evidence, committed a palpable abuse of discretion, or made a clear legal
error on a major issue. Berger, 277 Mich App at 716. Plaintiff has not established that she is
entitled to relief on this issue.
Next, plaintiff argues that in 2007, the trial court erred by analyzing the factors set out in
MCL 722.31(4) when it considered plaintiff’s motion to change Kameron’s domicile to
Maryland. Plaintiff had at that time and still has sole legal and physical custody of Kameron.
The factors set out in MCL 722.31(4) had no applicability to plaintiff’s request to change
Kameron’s domicile. We agree, but find the error harmless under the circumstances.
We review a trial court’s interpretation and application of a statute de novo on appeal.
Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 187; 732 NW2d 88 (2007).
MCL 722.31 provides in pertinent part:
(1) A child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent. 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 a 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.
(2) A parent’s change of a child’s legal residence is not restricted by subsection
(1) if the other parent consents to, or if the court, after complying with subsection
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(4), permits, the residence change. This section does not apply if the order
governing the child’s custody grants sole legal custody to 1 of the child’s parents.
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(4) Before permitting a legal residence change otherwise restricted by subsection
(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.
In 2007, the trial court granted plaintiff’s motion to change Kameron’s domicile to
Maryland on a conditional basis, and stated that if after two years plaintiff wished to continue
living with Kameron in a state other than Michigan, plaintiff would be required to seek approval
from the court. In the August 19, 2009, order from which plaintiff appeals, the trial court stated
that Kameron’s domicile was to remain in Maryland until further order, and was not to be
changed absent a proper motion and hearing.
In Brausch v Brausch, 283 Mich App 339, 349-350; 770 NW2d 77 (2009), this Court
stated:
Simply stated, when a parent with sole legal custody desires to relocate, he or she
must first obtain the trial court’s approval, but the factors set forth in D’Onofrio v
D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976), and codified in MCL
722.31(4) do not apply to the request.
The trial court erred in 2007 when it considered the factors set out in MCL 722.31(4) when
deciding plaintiff’s motion to change Kameron’s domicile to Maryland. However, the error
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should be considered ultimately harmless because the trial court granted plaintiff’s motion.
Thus, under Brausch, if in the future plaintiff wishes to relocate with Kameron, plaintiff must
obtain the approval of the trial court; however, the factors set out in MCL 722.31(4) would not
be applicable to plaintiff’s request.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Mark J. Cavanagh
/s/ Alton T. Davis
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