BOBBIJO WOODWARD V GREGORY MARK WOODWARD
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STATE OF MICHIGAN
COURT OF APPEALS
BOBBIJO WOODWARD,
UNPUBLISHED
March 4, 2010
Plaintiff-Appellee,
v
No. 294441
Lapeer Circuit Court
LC No. 08-040752-DM
GREGORY MARK WOODWARD,
Defendant-Appellant.
Before: Servitto, P.J., and Bandstra and Fort Hood, JJ.
PER CURIAM.
Defendant appeals as of right a circuit court custody and support order that also granted
plaintiff’s motion for a change of domicile. We affirm. This appeal has been decided without
oral argument pursuant to MCR 7.214(E).
The trial court’s factual findings are reviewed under the great weight of the evidence
standard, while its decision to grant a petition for a change of domicile is reviewed for an abuse
of discretion. Brown v Loveman, 260 Mich App 576, 600; 680 NW2d 432 (2004). “Under the
‘great weight of the evidence’ standard, a trial court’s findings should be affirmed unless the
evidence clearly preponderates in the opposite direction.” Mogle v Scriver, 241 Mich App 192,
196; 614 NW2d 696 (2000). An abuse of discretion in matters involving child custody exists
where the result is so palpably and grossly violative of fact and logic that it evidences a
perversity of will or the exercise of passion or bias. Shulick v Richards, 273 Mich App 320, 324325; 729 NW2d 533 (2006).
When parents share joint legal custody of their children and one parent proposes to
relocate more than 100 miles away, a motion for change of domicile is governed by MCL
722.31. Spires v Bergman, 276 Mich App 432, 436-437; 741 NW2d 523 (2007); Rittershaus v
Rittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007). That statute provides, in pertinent
part:
Before permitting a legal residence change. . . , 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.
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(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. [MCL 722.31(4).]
The party seeking a change of domicile has the burden of proving by a preponderance of the
evidence that the change is warranted. Brown, 260 Mich App at 600.
Defendant argues that the trial court erred by finding that factor (a) favored permitting the
relocation because plaintiff failed to establish that a move to Marblehead, Massachusetts, would
improve the quality of the children’s lives. However, plaintiff was not required to prove that the
move would improve the quality of their lives, only that it had the capacity to do so. As the trial
court found, the evidence showed that the children would have basically the same lifestyle
regardless of where they lived, apart from the diminution in time spent with defendant. There
was a suitable home in a suitable neighborhood in both communities, there were good schools in
both communities, the children had friends in both communities, and they had a chance to see
nearby relatives in both communities. However, plaintiff, who had been the children’s sole
source of financial support because defendant had been unemployed, had lost her job and been
unable to find new employment in Michigan, whereas she had at least some work available to
her immediately in Marblehead. “It is well established that the relocating parent’s increased
earning potential may improve a child’s quality of life[.]” Rittershaus, 273 Mich App at 466.
The trial court tacitly recognized this in its finding that if plaintiff were to remain in Michigan
without work, the children’s quality of life could be detrimentally affected. Therefore, the trial
court’s conclusion with respect to factor (a) is not against the great weight of the evidence.
Regarding factor (b), the trial court found that defendant had not taken full advantage of
his parenting time. Although the custody and support order entered in 2005 was not admitted
into evidence, defendant admitted that it gave him parenting time for half the summer and that he
had not exercised that time, apparently because of all the extra time he had spent babysitting the
children. While defendant was seeing the children on a regular basis almost daily, the time spent
with them for a few hours while plaintiff was at work and on alternate weekends is not the same
as being a full-time parent for five or six weeks at a time. Therefore, the trial court’s conclusion
with respect to this aspect of factor (b) is not against the great weight of the evidence.
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Regarding factor (c), the trial court found that it would be possible to work out a new
visitation schedule adequate to preserve defendant’s relationship with the children. That finding
is supported by plaintiff’s testimony that defendant had maintained regular telephone contact
with the children during an extended vacation to Marblehead, and by her testimony regarding a
proposed visitation schedule. While telephone calls and extended visits throughout the year are
no substitute for daily personal contact and sole custody every other weekend, such a heightened
level of contact is impossible when the children move any great distance away. Further, “the
new visitation plan need not be equal to the prior visitation plan in all respects. It only need
provide a realistic opportunity to preserve and foster the parental relationship previously enjoyed
by the noncustodial parent.” Mogle, 241 Mich App at 204. The order entered by the trial court
left it to the parties to devise a parenting time schedule and presumably any agreement that was
mutually satisfactory to both parties would be sufficient to maintain the relationship between
defendant and the children. Although the parties were unable to agree, the court’s subsequent
order granting defendant extended visitation in Michigan during school holidays, and unlimited
visitation in Massachusetts provided an adequate basis to preserve and foster defendant’s
relationship with the children. See Anderson v Anderson, 170 Mich App 305, 311; 427 NW2d
627 (1988). Therefore, the trial court’s conclusion with respect to this aspect of factor (c) is not
against the great weight of the evidence.
Defendant does not challenge the trial court’s findings regarding factors (d) and (e).
Therefore, after considering the record presented, we conclude that the trial court’s decision to
grant plaintiff’s motion for change of domicile was not an abuse of discretion.
We affirm.
/s/ Deborah A. Servitto
/s/ Richard A. Bandstra
/s/ Karen M. Fort Hood
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