BILLIE J DERRY V JAMES A DERRY
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STATE OF MICHIGAN
COURT OF APPEALS
BILLIE J. DERRY,
UNPUBLISHED
August 31, 2010
Plaintiff-Appellant,
v
Nos. 294029; 294167
Wayne Circuit Court
Family Division
LC No. 03-318588-DM
JAMES A. DERRY,
Defendant-Appellee.
Before: JANSEN, P.J., and CAVANAGH and TALBOT, JJ.
JANSEN, P.J. (dissenting).
I cannot conclude that the trial court’s findings were against the great weight of the
evidence or that the court abused its discretion by denying plaintiff’s motion to change the minor
child’s domicile. Nor do I perceive any other errors requiring reversal in this case. Accordingly,
I respectfully dissent.
The trial court credited defendant with factor (a), which concerns whether the legal
residence change has the capacity to improve the quality of life for both the child and the
relocating parent. MCL 722.31(4)(a). Although the court found that the planned move to
Massachusetts would substantially improve plaintiff’s quality of life from a financial standpoint,
the court did not believe that the move would improve the child’s overall quality of life. The
court observed that the child had a strong relationship with defendant and defendant’s extended
family in Michigan, and that defendant and his family provided the child with stability and a
sense of familial permanence. The court found that the child’s friends were in Michigan and that
he was doing well academically and socially in Michigan. The court concluded that the
requested move to Massachusetts would be disruptive to the child’s life.
These findings on factor (a) were not against the great weight of the evidence. As an
initial matter, the planned move to Massachusetts did have the potential to provide benefits to the
child. The family would earn more money and be moving to a larger, nicer home. Moreover,
the Massachusetts school district in which the child would be enrolled is at least as good, if not
better, than the child’s present school district as measured by test scores. Notwithstanding these
benefits, however, the move would be costly for the child in other, more significant ways. The
trial court was correct in finding that the child is closely bonded with defendant and defendant’s
extended family. Defendant and his extended family spend time with him on a weekly basis, and
he looks to defendant for fatherly love and guidance. Furthermore, the child has close friends in
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Michigan and is doing well in the Michigan school district. Plaintiff presented no evidence to
rebut these facts. A move to Massachusetts, where the child has no family or friends, would
strongly undermine his relationships and ties to his Michigan family and friends. I cannot
conclude that the trial court erred with respect to factor (a).
Next, the court found that the parties were equal with regard to factor (b), which pertains
to the degree to which each parent has complied with and utilized his or her time under a court
order governing parenting time, 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.
MCL 722.31(4)(b). First, the trial court opined that plaintiff’s proposed move was not being
made to frustrate defendant’s parenting time. Second, the court determined that, for the most
part, defendant had exercised his parenting time. The court found that defendant’s occasional
failure to exercise his parenting time was not motivated by complacency or a lack of interest in
the child.
I cannot conclude that the trial court’s findings concerning factor (b) were against the
great weight of the evidence. There was no evidence that plaintiff’s proposed move was inspired
by a desire to frustrate defendant’s parenting time or otherwise motivated by bad faith. With
regard to parenting time, it is undisputed that plaintiff has consistently utilized her time under the
parenting time order. Defendant concedes that he frequently does not utilize his Thursday
parenting time, allowing the child to spend Thursdays at plaintiff’s house since he attends school
in Trenton on Friday. But defendant maintains that he consistently utilizes his Thursday
parenting time on the occasions when the child does not have school on Friday, and notes that he
makes up the parenting time for the Thursdays that he misses. Defendant does not address
plaintiff’s assertion that he fails to utilize his school break and holiday parenting time or his two
consecutive weeks in the summer. However, I agree with the trial court that the total parenting
time that defendant has failed to exercise is not a significant amount, and that defendant’s failure
to utilize all of his parenting time is not motivated by complacency or a lack of desire to foster a
relationship with the child. Indeed, it appears to me that defendant’s weekday work schedule is
mostly the cause. I cannot say that the trial court erred in finding that the parties were equally
situated with regard to factor (b).
Next, the trial court credited defendant with factor (c), which concerns the degree to
which it is possible to order a modification of the parenting time schedule to preserve and foster
the parental relationship between the child and each parent. MCL 722.31(4)(c). While
acknowledging that plaintiff proposed an extensive visitation scheme, the court concluded that
relocation to Massachusetts would nevertheless substantially impair defendant’s parenting time
to the detriment of the child and the father-son relationship. The trial court’s findings concerning
factor (c) were not against the great weight of the evidence. It is true that, to plaintiff’s credit,
she proposed a new parenting time schedule that would allow the child to visit defendant in
Michigan several times throughout the year. But although plaintiff’s proposed visitation
schedule is extensive, I agree with the trial court that it would not preserve the strong
relationship presently existing between defendant and the child. See Mogle v Scriver, 241 Mich
App 192, 204; 614 NW2d 696 (2000) (stating that although the new visitation plan need not be
equal to the prior visitation plan in all respects, it must provide a realistic opportunity to preserve
and foster the parental relationship previously enjoyed by the noncustodial parent). Presently,
defendant and the child spend every weekend together. The record demonstrates that defendant
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and the child have a close and loving relationship, and that the child looks to defendant for love
and guidance. Further, during defendant’s parenting time, the child looks to him for basic
necessities. Defendant’s extended family is close to the child as well, and spends time with him
on a weekly basis. If the child were in Massachusetts during the school year and could visit
defendant only one extended weekend per month, the relationship between the child and
defendant—heretofore characterized by weekly, hands-on parenting—would be meaningfully
undermined. I perceive no error with regard to factor (c).1
In sum, the trial court concluded that plaintiff had not sustained her burden of proof, and
her motion to change domicile was therefore denied. I do not believe that the trial court’s
findings of fact were against the great weight of the evidence, and I cannot conclude that the
court’s decision to deny plaintiff’s petition for a change of domicile constituted an abuse of
discretion.
Nor do I agree with plaintiff’s contentions that the trial court erred by failing to articulate
and apply the correct evidentiary standard or that the trial court erred with regard to its finding
concerning the established custodial environment. To support a change of domicile petition, the
moving party need only show that such is warranted by a preponderance of the evidence.
Anderson v Anderson, 170 Mich App 305, 309; 427 NW2d 627 (1988). Here, the trial court
never articulated which standard of proof it was applying. Plaintiff is incorrect, however, to
assert that the court applied the clear and convincing evidence standard. Plaintiff does not point
to any statement of the court, nor does one exist, to support her allegation in this regard. It is
well settled that a judge is presumed to know and apply the correct law. In re Costs & Attorney
Fees, 250 Mich App 89, 101; 645 NW2d 697 (2002).
With regard to the established custodial environment, the trial court’s failure to expressly
indicate that the child had an established custodial environment with plaintiff, in addition to the
one that he had with defendant, appears to be a simple oversight. There is no evidence upon
which to conclude that plaintiff played any less a role in the child’s life than defendant did. The
record reflects that plaintiff has consistently provided the child with love, guidance, discipline,
and the basic necessities of life. If the child has an established custodial environment with
defendant, as the court concluded, he certainly has one with plaintiff as well. “Where a trial
court fails to make a finding regarding the existence of a custodial environment, this Court will
remand for a finding unless there is sufficient information in the record for this Court to make its
own determination of this issue by de novo review.” Thames v Thames, 191 Mich App 299, 304;
477 NW2d 496 (1991). I believe that there is sufficient evidence in the record to conclude that
the child had an established custodial environment with both parents.
I must also reject plaintiff’s assertion that the trial court erred by failing to consider what
will become of the child’s custody if plaintiff moves to Massachusetts. Plaintiff disregards the
1
Factor (d) concerns 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, and
factor (e) concerns domestic violence. MCL 722.31(4)(d) and (e). The court found that these
two factors were irrelevant. Plaintiff does not contest this finding.
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facts that the trial court denied her motion to change the child’s domicile and that neither party
has moved for a change in custody. Consequently, the trial court was not obligated to consider
the best-interest factors of MCL 722.23.
Finally, plaintiff contends that this case raises public policy concerns, including whether
it is appropriate to force someone in her position to choose between living with her child or her
husband. While it might be true that plaintiff is in an unenviable position, this Court’s role is
limited to applying the applicable law. See Henry v Dow Chemical Co, 473 Mich 63, 88; 701
NW2d 684 (2005) (stating that it is the Legislature’s function, not that of the courts, to draw
lines reflecting public policy considerations). The Legislature has clearly indicated that change
of domicile disputes must be decided on the basis of the factors set forth in MCL 722.31. As the
trial court concluded, plaintiff failed to sustain her burden under MCL 722.31. In my opinion,
plaintiff’s motion to change the child’s domicile was properly denied. I would affirm the trial
court’s decision in full.
/s/ Kathleen Jansen
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