OUSSAMA JAWAD BACHIR V SHANNA LYNN PEVELER-STROMIK
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STATE OF MICHIGAN
COURT OF APPEALS
OUSSAMA JAWAD BACHIR,
UNPUBLISHED
January 20, 2011
Plaintiff-Appellant,
v
No. 296339
Wayne Circuit Court
Family Division
LC No. 00-011668-DC
SHANNA LYNN PEVELER-STROMIK,
Defendant-Appellee.
Before: FORT HOOD, P.J., and MURRAY and SERVITTO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for change of domicile.
Because the trial court’s factual determinations regarding the change of domicile were not
against the great weight of the evidence, because the trial court did not abuse its discretion in
allowing the change, and because the change in domicile was in the minor child’s best interests,
we affirm.
Plaintiff and defendant, though never married, have a minor child in common (DOB
3/27/99). In 2000, plaintiff initiated an action to determine issues concerning the custody and
care of the minor child. The parties quickly entered a consent order in the matter, which
provided, in part, that defendant would have primary physical custody of the child, that the
parties would share joint legal custody, and that the domicile of the minor child would not be
removed from Michigan without judicial approval. Issues arose concerning plaintiff’s parenting
time with the child in 2003 and again in 2005, but were ultimately resolved. In 2009, defendant
moved for a change in the minor child’s domicile, indicating that her and the minor child’s
quality of lives would drastically improve if they were permitted to relocate to Florida.
Defendant’s motion was scheduled for an evidentiary hearing, at the conclusion of which the
trial court granted plaintiff’s motion for a change of the minor child’s domicile to the state of
Florida. This appeal followed.
Plaintiff argues on appeal that the trial court’s findings of fact with regard to the change
of domicile factors delineated in MCL 722.31 were against the great weight of the evidence. We
disagree.
The trial court's decision on a petition to change the domicile of a minor child is reviewed
for an abuse of discretion. Rittershaus v Rittershaus, 273 Mich App 462, 464; 730 NW2d 262
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(2007). The trial court’s factual findings in reaching its decision are reviewed under the great
weight of the evidence standard. Id.
When a parent of a child whose custody is governed by court order seeks to move with
the minor child to a location more than 100 miles away from his or her current legal residence,
and the parent does not have sole legal custody, the trial court must consider the following
factors before permitting the requested legal residence change:
(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. [MCL 722.31(4).]
Plaintiff argues that the trial court erred in finding that factor (a) favored defendant
because there was no evidence presented that defendant’s and the child’s quality of life would
improve by relocating to Florida. We disagree.
Defendant testified at the evidentiary hearing that she had an increased earning potential
in Florida because she had obtained a position as a nurse in a labor and delivery department at
the Orange Park Medical Center, a job that paid approximately $14,000 a year more than her
current job at Henry Ford, and was in the medical department in which she preferred to work. In
addition to the increase in salary, defendant testified that she would be working better hours,
which would allow her to spend more time with her children, and she would have the
opportunity to pursue a Master’s degree in midwifery, paid for in part by her new employer.
Defendant further testified that her brother and her husband’s parents would be moving to
Florida with them, which would allow the child to continue having a relationship with them.
Defendant’s husband, Ryan Stromik, testified that he would also have greater earning potential
as an insurance investigator in Florida than in Michigan because of the downturn in the Michigan
economy.
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Plaintiff argues that defendant could have obtained a similar position in Michigan, but
that she failed to look for one. However, defendant testified that she did search for positions in
Michigan and throughout the country, but did not find one. An increase in the earning potential
of the parent as a result of a change of domicile may increase the child's quality of life.
Rittershaus, 273 Mich App at 466. At the same time, the trial court should consider the
potentially detrimental effects of physically severing the bond between siblings in cases where
the children likely have already experienced serious disruption in their lives, as well as a sense of
deep personal loss. Brown v Loveman, 260 Mich App 576, 602; 680 NW2d 432 (2004).
It is unclear from the record whether the school in Florida would be better or worse than
the child’s Michigan school, and moving to Florida would likely have a negative effect on the
relationship between the child and plaintiff and the child and his brother, Noah. However, in
addition to the economic advantage the move would bring, defendant testified that the
community in which she, the child and the rest of her family would be living had superior
schools and was family-oriented with many activities available for the child and his sisters. The
testimony also revealed that defendant would be working a schedule much more conducive to the
family schedule. Despite the potential drawbacks that a move would bring, we conclude that
trial court’s finding that this factor favored defendant is not against the great weight of the
evidence.
Plaintiff next argues that the trial court erred in finding that factor (b), whether each
parent has utilized his or her parenting time, was neutral when it should have found that this
factor favored plaintiff. We disagree.
With respect to factor (b), the trial court concluded that each parent had substantially
complied with the parenting requirements with the child’s best interests in mind, and that
defendant was not moving to Florida because of her desire to interfere with plaintiff’s parenting
time. Both defendant and plaintiff testified that they regularly spent time with the child during
their parenting time. Consistent with having sole physical custody of the child, defendant
testified that she was the child’s primary caregiver and took him to doctor and dentist
appointments, went to his parent teacher conferences and PTA meetings, and organized his
extracurricular activities. The child visited with plaintiff every other weekend and, during the
change of domicile proceedings, every Tuesday and Thursday. Prior to the most recent
proceedings, plaintiff did not regularly use his allotted visiting times on Tuesday and Thursday.
At the same time, defendant testified that occasionally she offered, and plaintiff utilized extra
time with the child. Both parties also testified that, at some point, the other interfered with their
time with the child. Based on the evidence, a finding that both parents generally utilized their
parenting time and that factor (b) favored neither party is not against the great weight of the
evidence.
Plaintiff further argues that factor (b) should have favored him because defendant was
motivated to move to Florida in part by a desire to limit plaintiff’s parenting time with the child.
Although Dr. Larry Mark Frieberg testified that defendant and her husband, Stromik, had
concerns about some of plaintiff’s activities and they may have wanted the child to spend less
time with plaintiff, plaintiff provided no real evidence that a substantial reason for the proposed
move was because defendant wanted to keep the child away from plaintiff. The evidence in the
record indicates that defendant wanted to move to improve the quality of life for herself and her
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family, including the child. Defendant found a job in Florida, doing exactly what she had always
dreamed of doing, with much better working hours and the potential for job growth. Moreover,
her husband had greater career opportunities in Florida than in Michigan. Defendant found a
child-friendly community with great schools and housing they could afford. While plaintiff
argues that defendant could have searched for positions in Michigan, defendant testified that she
searched for jobs in Michigan, but did not find any in the same department and with the same
pay and advantages as that offered in Florida. Moreover, there is no legal requirement that
defendant must search for positions in her current location, before she can seek to change her
domicile. Furthermore, as the trial court found, the move to Florida would result in plaintiff
having the same or more time with the child than he would have had if the child stayed in
Michigan. Taken together, the trial court’s findings with regard to factor (b) are not against the
great weight of the evidence.
Plaintiff further argues that the trial court erred in finding that factor (c), the degree to
which the trial court is satisfied that the modification in the parenting time schedule will
adequately preserve the relationship between the child and both parents, favored defendant. We
disagree.
The trial court found that defendant’s visitation plan, which, in the event of the move to
Florida, allowed plaintiff extended visitation with the child during the summer and spring
holidays, made up for the changes in the parenting schedule. The trial court concluded that
relocating the child to Florida would not interfere with plaintiff’s relationship with the child.
This finding is supported by the great weight of the evidence.
The evidence in the record indicates that for the majority of the child’s life, plaintiff had
parenting time with the child every other weekend for a total of 52 nights a year. Plaintiff also
had parenting time with the child every Tuesday and Thursday after school until 8:00 p.m., but
plaintiff rarely utilized that time because of the driving distance between his house and
defendant’s house and because the child had afterschool activities that interfered. Under the plan
defendant agreed, in the event that defendant and the child move to Florida, plaintiff would have
parenting time every summer from July 1 until August 15 for a total of 46 nights, every spring
break for a total of ten nights, and every other Christmas for a total of 12 nights. Every year,
plaintiff would thus have between 56 and 68 nights with the child. In addition, defendant agreed
to allow the child to speak to plaintiff twice a week through a web camera via the computer.
Defendant also testified that plaintiff could spend as much time with the child as he wanted
whenever plaintiff was in Florida. While it is true that plaintiff would not see the child as often
if the child moved to Florida, plaintiff and the child would have more concentrated time together,
which could be just as beneficial and may, as indicated at one point by the trial court, reduce the
friction between the parties. In total, the trial court’s finding that the parenting time schedule
would adequately preserve plaintiff and the child’s relationship is not against the great weight of
the evidence.
Plaintiff next argues that the trial court erred in finding that the move to Florida would be
in the child’s best interest. We disagree.
If a modification of custody would change the established custodial environment of a
child, there must be a showing that the change is in the child's best interest by clear and
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convincing evidence. MCL 722.27(1)(c); Sinicropi v Mazurek, 273 Mich App 149, 178; 729
NW2d 256 (2006). A determination whether an established custodial environment exists is a
question of fact. Foskett v Foskett, 247 Mich App 1, 5; 634 NW2d 363 (2001). The trial court’s
findings of fact are reviewed under the great weight standard and will be affirmed unless the
evidence clearly preponderates in the opposite direction. McIntosh v McIntosh, 282 Mich App
471, 474-475; 768 NW2d 325 (2009).
Child custody disputes, including changes of domicile that alter established custodial
relationships, must be resolved in the child's best interests, according to the factors set forth in
the Child Custody Act (CCA) at MCL 722.23. Harvey v Harvey, 470 Mich 186, 187; 680 NW2d
835 (2004); Brown, 260 Mich App at 590-591. The custodial environment of a child is
established if, over an appreciable period of time, the child naturally looks to the custodian in
that environment for guidance, discipline, the necessities of life, and parental comfort. MCL
722.27(1)(c); Pierron v Pierron, 486 Mich 81, 85-86; 782 NW2d 480 (2010). An established
custodial environment may exist with both parents when a child looks to both his mother and
father for guidance, discipline, the necessities of life, and parental comfort. Berger v Berger, 277
Mich App 700, 707; 747 NW2d 336 (2008).
In this case, the trial court concluded, “relocation of the minor child to the State of
Florida would effectively change the established custodial environment as to parenting time, and,
therefore, the best interest factors must be considered in conjunction with the statutory factors
promulgated under MCL 722.31.” After analyzing the best interest factors, the trial court further
found:
[C]hanging the domicile of the minor child from Michigan to Florida would have
the capacity to improve the minor child’s quality of life, would not be deleterious
to plaintiff’s ability to foster a parental relationship with the minor child, would
not severally [sic] curtail the child’s parenting time opportunities between
plaintiff and the minor child, is not tantamount to a material change of custody or
change in the established custodial environment, and, in effect, would provide
plaintiff the benefit of additional uninterrupted and less contentious parenting
time with the minor child.
The trial court appears to be contradicting itself by first indicating that the new parenting time
schedule would alter an established custodial relationship and then asserting that the parenting
time schedule would not alter that relationship. Nevertheless, the trial court proceeded in the
more cautious manner, as though the move would, in fact, alter the established custodial
environment, and employed the proper analysis in determining whether the move would serve
the best interests of the child.
The CCA sets out “the following factors to be considered, evaluated, and determined by
the court” to establish the best interests of a child:
(a) The love, affection, and other emotional ties existing between the parties
involved and the child.
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(b) The capacity and disposition of the parties involved to give the child love,
affection, and guidance and to continue the education and raising of the child in
his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with
food, clothing, medical care or other remedial care recognized and permitted
under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment,
and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home
or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of
sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a
close and continuing parent-child relationship between the child and the other
parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or
witnessed by the child.
(l) Any other factor considered by the court to be relevant to a particular child
custody dispute. [MCL 722.23.]
Plaintiff argues that the trial court erred in finding that factor (d), the length of time the
child has lived in a stable, satisfactory environment and the desirability of maintaining that
environment, favored defendant. We disagree.
The trial court concluded that factor (d) favored defendant because “defendant has proven
herself capable of providing a stable environment for the benefit of the minor child.” It further
found that “the minor’s child’s primary residence has been with defendant for an appreciable part
of his life, and defendant has been successful in providing a stable, nurturing, and dependable
living environment for the child over the years.” These findings are supported by the evidence.
The evidence in the record indicates that the child spent the majority of his life residing
with defendant and Stromik and his two sisters. Defendant and Stromik have provided a stable,
nurturing and dependable environment for the child, which has allowed the child to excel in
school and to be, by all accounts a generally happy child. Plaintiff, in fact, acknowledged that
defendant is a good mother and did a great job teaching the minor child. Plaintiff has also been
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there for the child and has provided guidance to the child, but the evidence in the record indicates
that he frequently had others involved in the exchange of the child between defendant and
plaintiff, and did not utilize all of the parenting time available to him. As a result, the trial
court’s finding that this factor favored defendant is supported by the evidence.
Plaintiff further argues that the trial court erred in finding that factor (j), the willingness
of each of the parties to facilitate and encourage a close and continuing parent-child relationship
between the child and the other parent, was neutral when it should have found that this factor
favored plaintiff. We disagree.
The trial court’s finding that this factor is neutral because “the parties mutual lack of an
ability to foster an affirmative relationship with the other parent is equally abysmal” is supported
by clear and convincing evidence. In this case, although they complied with the court orders,
both parties did not seem interested in facilitating a relationship between the child and the other
parent. According to Dr. Frieberg, defendant would interrogate the child when he returned from
visits with plaintiff. She and Stromik also told the child that plaintiff was a drug dealer and a bad
parent. While defendant occasionally denied or interfered with plaintiff’s parenting time, she
would also occasionally allow plaintiff additional time with the child outside of the parenting
schedule. On the other hand, plaintiff told the child that defendant and Stromik were racist, and
at least once refused to allow the child to return home to defendant’s house after a weekend
visitation ended. Plaintiff also forced the child to choose between football practice, which
defendant and Stromik wanted him to go to, and time with plaintiff, putting the child in a very
difficult position. Altogether, this factor favored neither party.
Plaintiff does not question on appeal the trial court’s findings with regard to the other
factors in the best interest analysis. As a result, the trial court’s findings, that the move to
Florida was in the child’s best interest, are supported by clear and convincing evidence.
Ultimately, given that the trial court did not err with regard to its findings on the factors in MCL
722.31(4) and the best interest factors under MCL 722.23, the trial court did not abuse its
discretion in granting defendant’s motion for change of domicile.
Affirmed.
/s/ Karen Fort Hood
/s/ Christopher M. Murray
/s/ Deborah A. Servitto
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