STEPHANI LARA YACHCIK, also known as STEPHANI LARA WALLEN, Plaintiff-Appellant,
KRISTOPHER JON YACHCIK, Defendant-Appellee.
Circuit Court Family Division LC No. 05-000157-DM
Before: Hoekstra, P.J., and Saad and Riordan, JJ.
appeals as of right the trial court order (1) denying her
motion to change the minor child's domicile from Michigan
to Pennsylvania and (2) providing that, if plaintiff moves to
Pennsylvania,  she will be awarded the same parenting
time that she had proposed for defendant in conjunction with
her motion. We affirm in part, vacate in part, and remand for
further proceedings consistent with this opinion.
and defendant married in June 2003. Their son, GY, was born
during the first year of their marriage. The parties divorced
in August 2005, agreeing to joint legal and physical custody
of GY. After the divorce, both parties remained in the
Alpena, Michigan area.
time later, defendant began dating Christina LeTourneau. The
couple began living together when GY was approximately two
years old. Plaintiff also had her own relationships.
2012, plaintiff and defendant agreed to modify their
parenting time arrangement so that each party would have
parenting time on an alternating weekly basis. In August
2012, plaintiff married her current husband, Benjamin Wallen,
who lives and works near the New York/Pennsylvania border. He
searched for employment in Michigan, but was unable to find a
job with health insurance benefits comparable to those
through his out-of-state job, which cover ongoing treatment
for a rare form of cancer with which he is afflicted.
Wallen's work schedule provides four days off every other
weekend, which gives him an opportunity to visit plaintiff
and GY in Michigan once every month or month and a half.
Occasionally, plaintiff and GY have visited Wallen in
Pennsylvania as well.
January 2016, plaintiff filed a motion to change the
child's domicile to Pennsylvania. She explained that she
had found a job there,  and that she and her husband could save
thousands of dollars in living expenses each year if they
could consolidate their households and no longer pay for
separate residences. She also proposed a parenting time
schedule under which GY would stay with plaintiff and Wallen
during the school year and visit defendant in Michigan
"for Thanksgiving break, one week of Christmas break,
spring break, and 10 weeks of summer break."
opposed the motion, contending that the move would not be
beneficial to the child. He also requested that the trial
court award him primary physical custody if plaintiff moves
to Pennsylvania and ensure that the parenting time schedule
is consistent with the best interests of the child if
plaintiff moves away from the Alpena area.
trial court held a hearing on plaintiff's motion in May
2016, taking testimony from plaintiff; Wallen; defendant;
LeTourneau; the owner of the business that offered plaintiff
a job in Pennsylvania; the director of
admissions from Notre Dame High School, a private
Catholic school where plaintiff planned to send GY upon
moving to Pennsylvania; and a Pennsylvania realtor who was
working with plaintiff and Wallen. During her testimony,
plaintiff proposed that defendant should receive parenting
time during Thanksgiving break, half of Christmas break, all
of spring break, and the entire summer break except for the
first and last weeks if the court granted her motion.
Plaintiff clearly indicated during the hearing that she
intended to move to Pennsylvania regardless of the outcome of
her motion to change the child's domicile. At the end of
the hearing, the court took the matter under advisement,
promising to issue a written opinion.
trial court's opinion and order summarized the factual
and procedural background of the case and stated the
following as its decision and reasoning:
MCL 722.31(4) controls the question of a legal residence
change. That statutory provision requires this Court to
determine whether the change in residence has the capacity to
improve the quality of life for both the child and the
relocating parent, but, placing primary focus on the child.
It is clear from the testimony that [plaintiff's] life
would improve greatly in both a financial sense and an
emotional sense since her move to Pennsylvania would be
uniting herself with her husband and gaining employment. But
the proof involved with the improvement in the quality of
life for [GY] is less clear. The Court is of the opinion that
removing the child from this community where he has a large
extended family into a community where he has no extended
family is very much against his best interest. Additionally,
the child has been going to the Alpena Public Schools since
he became school[-aged] [and going] into a community where he
knows not one so[ul] other than [plaintiff and Wallen] is
also against his best interest. The proof concerning the
superiority of the proposed school is not strong and fails to
establish by a preponderance of evidence that the residence
change has the capacity to improve the quality of life for
the minor child.
For all of the foregoing reasons, this Court
DENIES Plaintiff's Motion for Change of
Residence for the minor child. In the event that the
Plaintiff moves from the area to the state of Pennsylvania
she is to enjoy the same parenting time schedule for herself
that she proposed for [defendant] at the hearing in this
cause. If she does not leave this area, the Order of week on
week off will control custody and parenting time. This Court
FINDS that there has been an established
custodial environment in both homes for the minor child.
plaintiff filed a motion for reconsideration, which the trial
STANDARD OF REVIEW
to MCL 722.28, in child custody disputes, "all orders
and judgments of the circuit court shall be affirmed on
appeal unless the trial judge made findings of fact against
the great weight of evidence or committed a palpable abuse of
discretion or a clear legal error on a major issue."
Accordingly, this Court reviews for an abuse of discretion a
trial court's decision on whether to grant a motion for
change of domicile and its decision on whether to change
custody. Fletcher v Fletcher, 447 Mich. 871,
879-880; 526 N.W.2d 889 (1994); Sulaica v Rometty,
308 Mich.App. 568, 577; 866 N.W.2d 838 (2014). "In this
context, an abuse of discretion exists when the result is so
palpably and grossly violative of fact and logic that it
evidences a perversity of will, a defiance of judgment, or
the exercise of passion or bias." Sulaica, 308
Mich.App. at 577; see also Fletcher, 447 Mich. at
the child custody context, questions of law are reviewed for
clear legal error. A trial court commits legal error when it
incorrectly chooses, interprets, or applies the law."
Sulaica, 308 Mich.App. at 577; see also
Fletcher, 447 Mich. at 876-877. The trial
court's findings of fact are reviewed under the great
weight of the evidence standard. Fletcher, 447 Mich.
at 878-879; see also Rains v Rains, 301 Mich.App.
313, 324; 836 N.W.2d 709 (2013). "This Court may not
substitute [its] judgment on questions of fact unless the
facts clearly preponderate in the opposite direction.
However, where a trial court's findings of fact may have
been influenced by an incorrect view of the law, our review
is not limited to clear error." Rains, 301
Mich.App. at 324-325 (quotation marks and citations omitted;
alteration in original).
Court reviews de novo the proper interpretation and
application of statutes and court rules." Brecht v
Hendry, 297 Mich.App. 732, 736; 825 N.W.2d 110 (2012).
A court's primary goal when interpreting a statute is to
discern legislative intent first by examining the plain
language of the statute. Courts construe the words in a
statute in light of their ordinary meaning and their context
within the statute as a whole. A court must give effect to
every word, phrase, and clause, and avoid an interpretation
that renders any part of a statute nugatory or surplusage.
Statutory provisions must also be read in the context of the
entire act. It is presumed that the Legislature was aware of
judicial interpretations of the existing law when passing
legislation. When statutory language is clear and
unambiguous, courts enforce the language as written. [Lee
v Smith, 310 Mich.App. 507, 509; 871 N.W.2d 873 (2015)
it is important to keep in mind the following principles in
Statutory language should be construed reasonably, keeping in
mind the purpose of the act. The purpose of judicial
statutory construction is to ascertain and give effect to the
intent of the Legislature. In determining the
Legislature's intent, we must first look to the language
of the statute itself. Moreover, when considering the correct
interpretation, the statute must be read as a whole. A
statute must be read in conjunction with other relevant
statutes to ensure that the legislative intent is correctly
ascertained. The statute must be interpreted in a manner that
ensures that it works in harmony with the entire statutory
scheme. The Legislature is presumed to be familiar with the
rules of statutory construction and, when promulgating new
laws, to be aware of the consequences of its use or omission
of statutory language, and to have considered the effect of
new laws on all existing laws. [In re MKK, 286
Mich.App. 546, 556-557; 781 N.W.2d 132 (2009) (quotation
marks and citations omitted).]
CONSIDERATION OF THE FACTORS UNDER MCL 722.31(4)
first argues that the trial court erred by failing to
consider four out of the five factors listed under MCL
722.31(4) when it decided plaintiff's motion for a change
of domicile. We disagree.
11 of the Child Custody Act ("CCA"), MCL 722.21
et seq., provides, in relevant part:
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 the child to a location
that is more than 100 miles from the child's legal