RITA P SPIRES V ANTHONY J BERGMAN
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
RITA P. SPIRES,
FOR PUBLICATION
August 21, 2007
9:00 a.m.
Plaintiff-Appellee,
v
Nos. 276722; 276841
Ottawa Circuit Court
Family Division
LC No. 01-041876-DP
ANTHONY J. BERGMAN,
Defendant-Appellant.
Official Reported Version
Before: Bandstra, P.J., and Cavanagh and Jansen, JJ.
PER CURIAM.
In Docket No. 276722, defendant appeals by leave granted the family court's order
changing the domicile of the parties' minor child. In Docket No. 276841, defendant appeals by
right the family court's custody determination, which is contained in the same order. We affirm
in part, vacate in part, and remand for further proceedings on defendant's motion to change
custody.
I
The parties are the parents of Malachi Joseph Bergman, born in 2001. The parties never
married but defendant acknowledged paternity the day the child was born. An order of filiation
was later entered. Plaintiff received sole legal and physical custody of the child, and defendant
received reasonable parenting time. The original order establishing paternity and custody
provided that "the domicile or residence of the minor child shall not be changed from the State of
Michigan without prior approval of [the court]."
In 2004, plaintiff filed a motion seeking to change the child's domicile from Michigan to
Texas. Plaintiff alleged that she would have greater family support in Texas than she had in
Michigan at that time. Defendant opposed the motion, arguing that the proposed move to Texas
would "not allow meaningful parenting time and would further sever a warm and loving bond
between the minor child and his extended family here in Michigan." In addition, defendant filed
a motion requesting that the family court memorialize the parties' informal parenting-time
agreement.
-1-
The parties appeared before a referee in September 2004, and agreed that defendant
would have parenting time on alternate weekends. The family court entered a written order to
this effect, but apparently did not rule on plaintiff 's motion to change domicile at that time.
In October 2006, defendant moved for sole legal and physical custody of the child.
Defendant argued that such a change was warranted because circumstances had changed and
plaintiff could not provide a stable home for their son. Plaintiff responded that defendant had
not met his burden of showing a change in circumstances to warrant a change of custody. Also
in response, plaintiff again moved to change the child's domicile from Michigan to Texas.
Plaintiff argued that MCL 722.31 did not apply because she had sole legal custody.
In December 2006, the family court held a hearing on the parties' motions. However,
rather than conducting a full evidentiary hearing to decide whether a change of custody or
change of domicile was warranted, the court simply commented that the parties had reached a
reasonable resolution of the matter. Plaintiff 's attorney placed the parties' agreement on the
record, stating that plaintiff could move to Waco, Texas, with the child as long as defendant
would receive joint legal custody and plaintiff would not move more than 100 miles from Waco
without the court's permission. Plaintiff 's attorney also stated that the parties had agreed to alter
defendant's parenting time.
Defendant's attorney then objected to the move to Texas, and stated that defendant did
not consent to the change of domicile. However, defendant's attorney also stated that because
the court was most likely going to approve the change of domicile, defendant wished "to consent
to joint legal [custody], as well as the parenting time that was explained by [plaintiff 's attorney],
in the event the Court makes the decision that it has no choice . . . but to allow [the change of
domicile]."
The court then granted plaintiff 's motion for the change of domicile. The court opined
that because plaintiff had sole legal custody of the child, MCL 722.31 did not apply in this case,
and that it was therefore not required to consider the factors enumerated in MCL 722.31(4). In
fact, the court concluded that because plaintiff had sole legal custody, it essentially had no
choice but to approve the proposed change of domicile:
So, the bottom line is the Court is determining that the plaintiff does not
need permission of this Court, or the permission of the defendant, to relocate
outside of the state of Michigan. Therefore, I am granting her request over the
defendant's objection . . . . So, that is the decision of the Court as it pertains to
that.
Concerning defendant's pending motion for a change of custody, the court stated that it would
"take the rest of . . . the agreement, which is by way of stipulation." The court granted joint legal
custody to both parties.
II
Defendant first argues that the family court erred by failing to hold a full evidentiary
hearing and by failing to make findings of fact with respect to plaintiff 's motion to change the
-2-
child's domicile. Specifically, defendant contends that Michigan common law and MCR
3.211(C) required the court to consider the factors enumerated in D'Onofrio v D'Onofrio, 144 NJ
Super 200, 206-207; 365 A2d 27 (1976), and that upon considering these factors, the court likely
would have concluded that the proposed change of domicile was not in the child's best interest.
We disagree.
The lower court's interpretation and application of statutes and court rules is reviewed de
novo on appeal. Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 187; 732 NW2d 88 (2007);
Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). We review for an abuse of
discretion the family court's decision to allow a parent to remove a child from the state. Mogle v
Scriver, 241 Mich App 192, 202; 614 NW2d 696 (2000).
"By its language, MCL 722.31 specifically applies to all cases in which a parent wishes
to change the legal residence of a child 'whose custody is governed by court order . . . .'" Grew v
Knox, 265 Mich App 333, 338; 694 NW2d 772 (2005). The Michigan Legislature has
specifically codified the change-of-domicile factors enumerated in D'Onofrio, supra, at MCL
722.31(4). Rittershaus v Rittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007). When
the parents share joint custody and one parent is seeking permission to relocate more than 100
miles away, the family court must consider the factors of MCL 722.31(4). Rittershaus, supra at
465. However, when the parent seeking the change of domicile has sole legal custody of the
child, MCL 722.31 does not apply, and the court need not consider the factors enumerated in
subsection 4. MCL 722.31(2); see also Rittershaus, supra at 465.1 In the present case, it is
undisputed that plaintiff had sole legal custody of the child at the time of the proceedings below.
Accordingly, MCL 722.31 did not govern plaintiff 's request to change the child's domicile, and
the family court properly declined to consider the factors of MCL 722.31(4).
However, defendant argues that the court was nonetheless required by the common law
and by MCR 3.211(C) to make findings of fact on each of the D'Onofrio factors before
approving the change of domicile. We address these arguments in turn.
Defendant asserts that notwithstanding the inapplicability of MCL 722.31 to this case,
Michigan courts have a common-law obligation to consider the D'Onofrio factors before
authorizing a change of domicile for a minor child. Defendant cites several cases for this
proposition.2
1
Only when the parents share joint physical custody and the proposed change of domicile would
also constitute a change in the child's established custodial environment is it also necessary to
evaluate whether the change of domicile would be in the child's best interest. Brown v Loveman,
260 Mich App 576, 598 n 7; 680 NW2d 432 (2004). This concern is not present in the case at
bar because plaintiff had sole legal and physical custody.
2
See, e.g., Mogle, supra at 202-203; Overall v Overall, 203 Mich App 450, 458; 512 NW2d 851
(1994).
-3-
This argument is simply without merit. It is true that in the cases cited by defendant, the
D'Onofrio factors were used to determine whether the relocating parent should be allowed to
change the child's domicile. However, all these cases were adopted before the enactment of
MCL 722.31 by way of 2000 PA 422. And as noted above, when the Legislature codified
Michigan's usage of the D'Onofrio factors, it concurrently chose to expressly exempt custody
cases in which the relocating parent has sole legal custody. MCL 722.31(2).
It is well settled that the Michigan Legislature has the power to change or modify the
common law. Const 1963, art 3, § 7; Wold Architects & Engineers v Strat, 474 Mich 223, 233;
713 NW2d 750 (2006). The Legislature is presumed to be aware of the common law when it
acts, and statutes must be interpreted in conformance with their express terms even if they
conflict with the common law. Id. at 233-234. Even assuming arguendo that it was customary
before the enactment of MCL 722.31 to consider the D'Onofrio factors in change-of-domicile
matters wherein one parent had sole legal custody, the plain language of MCL 722.31(2) has
altered any such practice. Use of the D'Onofrio factors in change-of-domicile cases is now
exclusively controlled by MCL 722.31, and the language of MCL 722.31(2) plainly provides that
"[t]his section does not apply if the order governing the child's custody grants sole legal custody
to 1 of the child's parents." Defendant's argument that the family court was required by common
law to apply the D'Onofrio factors, despite the express statutory exemption for parents with sole
legal custody, is unsupported by Michigan law.
Defendant also argues that the family court was required to approve the proposed change
of domicile, using the D'Onofrio factors, pursuant to MCR 3.211(C). MCR 3.211(C) provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from
Michigan without the approval of the judge who awarded custody or the judge's
successor,
(2) the person awarded custody must promptly notify the friend of the
court in writing when the minor is moved to another address, and
(3) a parent whose custody or parenting time of a child is governed by the
order shall not change the legal residence of the child except in compliance with
section 11 of the Child Custody Act, MCL 722.31.
The rules of statutory construction also apply to court rules. In re KH, 469 Mich 621, 628; 677
NW2d 800 (2004). Thus, this Court must accord every word or phrase of a court rule its plain
and ordinary meaning. Id.
MCR 3.211(C)(1) mandates that custody orders contain language requiring the court to
approve a proposed interstate move. However, contrary to defendant's position, the language of
the court rule does not require the family court to consider the D'Onofrio factors. Instead, the
court rule simply requires the court to comply with MCL 722.31, which by its own language
makes consideration of the D'Onofrio factors unnecessary when the relocating parent has sole
legal custody. MCL 722.31(2); see also Rittershaus, supra at 465.
-4-
The original custody order in this case provided that "a parent whose custody or
parenting time of a child is governed by this Order shall not change the legal residence of the
child except in compliance with . . . MCL 722.31." Moreover, in accordance with MCR
3.211(C)(1), plaintiff sought the family court's approval of the proposed change of domicile.
The family court fully complied with MCR 3.211(C) before approving the change. The court
began by determining that because plaintiff had sole legal custody, her ability to change the
child's domicile was not restricted by MCL 722.31. Once the court had determined that it was
not required to consider the factors of MCL 722.31(4), it properly approved plaintiff 's proposed
move to Texas. We conclude that the court fully satisfied the dictates of MCR 3.211(C) by first
conducting all necessary inquiries under MCL 722.31. The family court did not abuse its
discretion by approving the proposed change of the minor child's domicile. Mogle, supra at 202.
III
Defendant next argues that the family court erred by failing to make findings of fact and
by failing to rule with respect to his motion to change custody. He also contends that the court
should have ruled on his motion to change custody before considering plaintiff 's request to
change the child's domicile. We agree in part.
As an initial matter, we address plaintiff 's argument that defendant is barred from
challenging the family court's custody order because he is bound by the stipulated agreement that
was placed on the record. At the beginning of the hearing, the family court noted that the parties
had reached an agreement, and that "[w]hile not making everybody happy, I believe that the
parties believe they have a reasonable resolution." Plaintiff 's attorney then placed the agreement
on the record. After noting defendant's objections to the change of domicile, defendant's
attorney stated that defendant wished "to consent to joint legal [custody], as well as the parenting
time that was explained by [plaintiff 's attorney], in the event the Court makes the decision that it
has no choice . . . but to allow [the change of domicile]."
Although plaintiff asserts that defendant is bound by this agreement, stipulated
agreements do not apply in child custody matters. Phillips v Jordan, 241 Mich App 17, 21; 614
NW2d 183 (2000).
Stipulated orders that are accepted by the trial court are generally
construed under the same rules of construction as contracts. Like contracts,
stipulated orders are agreements reached by and between the parties. However,
contract principles do not govern child custody matters. The Legislature imposed
on trial courts, through the Child Custody Act, MCL 722.21 et seq.; MSA
25.312(1) et seq., the duty to review proposed changes in child custody to
determine whether the changes would be in the best interests of the child. MCL
722.27(1)(c); MSA 25.312(7)(1)(c)[.] While trial courts try to encourage parents
to work together to come to an agreement regarding custody matters, the circuit
court retains jurisdiction over the child until the child reaches the age of majority.
The trial court cannot blindly accept the stipulation of the parents, but must
independently determine what is in the best interests of the child. [Id. (internal
citations omitted).]
-5-
In other words, although the parties may have reached a contingent settlement agreement with
respect to plaintiff 's change-of-domicile motion, defendant cannot be bound by any stipulated
agreement on the issue of child custody. Id. By entering into a stipulated agreement that related
primarily to plaintiff 's change-of-domicile request, defendant in no way abandoned or waived
the right to a judicial determination on his change-of-custody motion. Id.
Nor are we persuaded by plaintiff 's argument that defendant may not bring this appeal
because he is not an aggrieved party. To maintain an appeal, a person must ordinarily be
"aggrieved" by the lower court's decision. MCR 7.203(A); Dep't of Consumer & Industry
Services v Shah, 236 Mich App 381, 385; 600 NW2d 406 (1999). "An aggrieved party is not
one who is merely disappointed over a certain result. Rather, to have standing on appeal, a
litigant must have suffered a concrete and particularized injury, as would a party plaintiff
initially invoking the court's power." Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286,
291-292; 715 NW2d 846 (2006).
Plaintiff asserts that defendant is in a better position after the family court's decision
because he now shares joint legal custody. However, even though defendant occupies a better
position with respect to the custody of the child, it does not necessarily follow that he is not
aggrieved. Defendant had moved for sole legal and physical custody of the child. However,
because of the stipulated agreement between the parties that related to plaintiff 's change-ofdomicile request, the court declined to consider defendant's petition for a change in custody. The
family court's failure to act in this regard denied defendant his right to an evidentiary hearing on
the motion to modify custody. Defendant was therefore injured, and is an aggrieved party for
purposes of this appeal. MCR 7.203(A).
We now turn to the substance of defendant's issues in Docket No. 276841. Defendant
argues that (1) the family court erred by failing to address his custody motion and by failing to
make findings of fact on the record, and (2) the family court should have ruled on his custody
motion before considering plaintiff 's motion for change of domicile.
We agree that the family court erred by failing to make findings of fact and by failing to
rule with respect to defendant's change-of-custody motion. The court merely adopted joint
custody, citing the stipulated agreement placed on the record by the parties' attorneys. However,
as noted above, the family court cannot accept a stipulation of the parents in child custody
matters, and must independently determine what is in the best interests of the child. Phillips,
supra at 21.
In child custody cases, the family court must consider all the factors delineated in MCL
722.23 and explicitly state its findings and conclusions with respect to each of them. Foskett v
Foskett, 247 Mich App 1, 9; 634 NW2d 363 (2001). "Where a trial court fails to consider
custody issues in accordance with the mandates set forth in MCL 722.23 'and make reviewable
findings of fact, the proper remedy is to remand for a new child custody hearing.'" Id. at 12,
quoting Bowers v Bowers, 190 Mich App 51, 56; 475 NW2d 394 (1991). In the case at bar, the
court did not rule on defendant's motion and did not make the requisite factual findings on the
record. Accordingly, we must remand for a new hearing on defendant's motion to change
custody. Foskett, supra at 9, 12.
-6-
Defendant lastly contends that the family court should have ruled on his custody motion
before considering plaintiff 's change-of-domicile motion. This contention is unavailing. We
agree with defendant that MCL 722.26a(1) requires the family court to advise the parties of the
possibility of joint custody, to "consider an award of joint custody," and to "state on the record
the reasons for granting or denying a request." However, we do not agree with defendant's
suggestion that if the court had considered an award of joint custody before deciding plaintiff 's
motion for a change of domicile, the family court's decision on the domicile issue would
necessarily have been different. Such a suggestion is little more than conjecture. We simply
cannot speculate concerning whether the family court's ultimate decision on domicile would
have been different if one of the parties had first requested joint custody.
Additionally, defendant cites no proper authority to support his position that the family
court should have decided his motion for a change of custody before considering plaintiff 's
request for a change of domicile. We readily acknowledge that a decision on the custody motion
in advance of the domicile motion could have affected the court's decision on the change-ofdomicile issue. However, we can locate no rule of law that mandates a certain sequential order
in which such motions must be decided.3 We will not search for authority to sustain or reject a
party's position. Davenport v Grosse Pointe Farms Bd of Zoning Appeals, 210 Mich App 400,
405; 534 NW2d 143 (1995). Defendant's failure to cite sufficient authority has resulted in the
abandonment of this issue on appeal. Goldstone v Bloomfield Twp Pub Library, 268 Mich App
642, 658; 708 NW2d 740 (2005).
IV
We affirm the portion of the family court's order allowing plaintiff to change the minor
child's domicile to Texas. We also affirm the court's decision to rule on plaintiff 's change-ofdomicile request before considering defendant's motion to change custody.
We vacate the portion of the family court's order granting joint custody based on the
parties' stipulated agreement, and remand for further proceedings on defendant's motion to
change custody.4
3
If the family court had decided the custody motion first and granted defendant joint legal
custody, it would have been required to comply with MCL 722.31 and to consider the D'Onofrio
factors in deciding whether to grant or deny plaintiff 's motion to change domicile. However,
even if the court had decided the custody motion first, it is just as likely that the court would
have denied defendant's request for custody and proceeded to grant plaintiff 's change-ofdomicile motion. Defendant's position is based on mere speculation.
4
The family court may not modify an existing custody order unless it first finds that the moving
party has demonstrated proper cause or a change in circumstances. MCL 722.27(1)(c); Foskett,
supra at 5. When modification of a custody order would change the established custodial
environment, the court must find by clear and convincing evidence that a change in custody is in
the child's best interests. MCL 722.27(1)(c). This requires the court to consider the factors
listed in MCL 722.23 and to state its findings and conclusions with respect to each one. Foskett,
(continued…)
-7-
Affirmed in part, vacated in part, and remanded for further proceedings on defendant's
motion to change custody. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
(…continued)
supra at 9. On remand, the family court should consider this Court's decision in Rittershaus,
supra at 473, where we concluded that moving a child across the country constituted a sufficient
change in circumstances to reopen a custody matter. See also Sehlke v VanDerMaas, 268 Mich
App 262, 263; 707 NW2d 603 (2005), rev'd in part on other grounds 474 Mich 1053 (2006).
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.