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Moote v. Moote

Court of Appeals of Michigan

August 27, 2019

ERICA RHAE MOOTE, Plaintiff-Appellee,
v.
DUSTIN EDWARD MOOTE, Defendant-Appellant.

          Alger Circuit Court Family Division LC No. 2016-007600-DM

          Before: Gadola, P.J., and Markey and Ronayne Krause, JJ.

          RONAYNE KRAUSE, J.

         In this custody matter, defendant-father appeals by right from the portion of the parties' judgment of divorce[1] that, in relevant part, granted plaintiff-mother's request to change the domicile of the parties' minor child, AM, by allowing plaintiff to move to Alabama with AM. We affirm.

         I. BACKGROUND

         Plaintiff and defendant were married in December 2008 and had one minor child born during the marriage, AM. Plaintiff also had a daughter from a prior marriage, who is not at issue in this matter. During the parties' marriage, plaintiff was primarily a stay-at-home parent while defendant was in the military until he began collecting disability benefits in 2014. However, the marriage was riddled with domestic violence, allegedly committed by both parties, and several periods of separation.

         In March 2016, plaintiff filed a complaint for divorce requesting sole physical and legal custody of AM. Plaintiff later rescinded her request for sole legal custody and asked for joint legal custody to continue. Defendant responded that the parties should share joint legal and physical custody. During the pendency of the case, defendant began exercising parenting time every other weekend with both children, although there was testimony at the parties' divorce hearing that he occasionally cancelled visitations. Meanwhile, plaintiff had primary custody of the children, and she managed all of their educational and health care needs.

         In May 2018, plaintiff filed a motion for a change of domicile, requesting the trial court's approval to relocate with AM to plaintiff's home state of Alabama. The trial court took testimony on the matter during the parties' divorce hearing. At the hearing, plaintiff testified that her family resided in Alabama and could offer her support and child care so that she could obtain an education and employment. She further suggested that both children could continue to have a relationship with defendant through electronic communications and extensive parenting time during the summer and holiday breaks. Defendant objected to the relocation, arguing that the distance and long periods of time between visitations would strain his relationship with AM. The trial court agreed with plaintiff that the change in domicile had the capacity to improve both plaintiff's and AM's lives, and it granted plaintiff's motion within the judgment of divorce.

         On appeal, defendant argues that the trial court abused its direction by making findings and granting plaintiff's motion for change of domicile without sufficiently analyzing the best-interest factors in MCL 722.23 or required considerations under MCL 722.31(4). We disagree.

         II. STANDARD OF REVIEW

         "This Court reviews for an abuse of discretion a trial court's ultimate decision whether to grant a motion for change of domicile." Sulaica v Rometty, 308 Mich.App. 568, 577; 866 N.W.2d 838 (2014). An abuse of discretion exists when the trial court's decision is "palpably and grossly violative of fact and logic . . ." Fletcher v Fletcher, 447 Mich. 871, 879; 526 N.W.2d 889 (1994), quoting Spalding v Spalding, 355 Mich. 382, 384-385; 94 N.W.2d 810 (1959).[2]

         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.'" Pierron v Pierron, 486 Mich. 81, 85; 782 N.W.2d 480 (2010), quoting MCL 722.28. The great weight of the evidence standard applies to all findings of fact; a trial court's findings, including the trial court's findings in applying the MCL 722.31 factors, should be affirmed unless the evidence clearly preponderates in the opposite direction. Pierron, 486 Mich. at 85; see also Gagnon v Glowacki, 295 Mich.App. 557, 565; 815 N.W.2d 141 (2012). In reviewing the trial court's findings, this Court should defer to the trial court's determination of credibility. Shann v. Shann, 293 Mich.App. 302, 305; 809 N.W.2d 435 (2011). Further, this Court may not substitute its judgment on questions of fact "unless the facts clearly preponderate in the opposite direction." Gagnon, 295 Mich.App. at 565.

         III. APPLICABLE LAW

         Pursuant to MCR 3.211(C)(3), "a parent whose custody or parenting time of a child is governed by [court] order shall not change the legal residence of the child except in compliance with . ...


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