                           STATE OF MICHIGAN

                            COURT OF APPEALS



MELISSA L. FLICK, f/k/a MELISSA L. MARSH,                              UNPUBLISHED
                                                                       January 5, 2016
               Plaintiff-Appellee,

v                                                                      No. 327679
                                                                       Midland Circuit Court
JUSTIN D. MARSH,                                                       LC No. 11-007745-DM

               Defendant-Appellant.


Before: Saad, P.J., and Stephens and O’Brien, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 the trial court’s opinion and order granting
plaintiff’s motion to change the domicile of their minor child. For the reasons set forth below,
we affirm.

         “This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to
grant a motion for change of domicile. 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 v Rometty, 308 Mich App 568,
577; 866 NW2d 838 (2014) (internal citation omitted). Similarly, in this context, this Court
reviews for clear legal error questions of law, including the interpretation and application of a
statute. Id. “A trial court commits legal error when it incorrectly chooses, interprets, or applies
the law.” Id. This Court reviews a trial court’s factual findings in applying the factors set forth
in MCL 722.31 under the great weight of the evidence standard. Gagnon v Glowacki, 295 Mich
App 557, 565; 815 NW2d 141 (2012). “ ‘Under this standard, we may not substitute our
judgment on questions of fact unless the facts clearly preponderate in the opposite direction.’ ”
Id. quoting McKimmy v Melling, 291 Mich App 577, 581; 805 NW2d 615 (2011).




1
 Melissa L Flick v Justin D Marsh, unpublished order of the Court of Appeals, entered July 28,
2015 (Docket No. 327679).




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       Plaintiff moved the trial court to change the child’s domicile from Midland, Michigan to
Boston, Massachusetts after defendant would not consent. At a hearing on the motion, the court
heard testimony from plaintiff and her husband, and defendant and his wife. Plaintiff and her
husband testified to their relationships with the child and the improvement the move would make
on the child and plaintiff’s life. Defendant and his wife testified to their relationships with the
child and the strain the move would inflict on defendant’s relationship with the child. After
consideration of the factors enumerated in MCL 722.31, the court granted plaintiff’s motion.
Defendant argues that the trial court abused its discretion in granting plaintiff’s motion. We
disagree.

       When a parent attempts to change the domicile of a child to a location that is over 100
miles away or to another state, regardless of the distance involved, MCL 722.31 is implicated.
Gagnon, 295 Mich App at 566. MCL 722.31 provides, in pertinent part, as follows:

               (1) 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 residence at the time of the commencement of the
       action in which the order is issued.

                                             * * *

               (4) Before permitting a legal residence change otherwise restricted by
       subsection (1), the court shall consider each of the following factors, with the
       child as the primary focus in the court’s deliberations:

               (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.

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“The party requesting the change of domicile has the burden of establishing by a preponderance
of the evidence that the change is warranted.” McKimmy, 291 Mich App at 582.

        Defendant argues that the trial court’s factual findings with respect to factors (a), (b), and
(c) were against the great weight of the evidence. This Court’s review focuses on whether the
trial court’s findings are “ ‘so contrary to the great weight of the evidence as to disclose an
unwarranted finding, or whether the verdict is so plainly a miscarriage of justice as to call for a
new trial . . . .’ ” Fletcher v Fletcher, 447 Mich 871, 878; 526 NW2d 889 (1994) quoting
Murchie v Standard Oil Co, 355 Mich 550, 558; 94 NW2d 799 (1959). This Court “should not
substitute its judgment on questions of fact unless they ‘clearly preponderate in the opposite
direction.’ ” Id.

        With respect to factor (a), the court concluded that the change of domicile would improve
the quality of life for both the child and plaintiff. Plaintiff’s husband testified that he would earn
over $100,000 with his new employment in Massachusetts. The trial court found credible
plaintiff’s and her husband’s testimony as to how that increase in income would benefit plaintiff
and the child. The trial court specifically noted the improved potential for plaintiff’s
employment, the potential for a superior education for the child, and the potential to improve
plaintiff’s and the child’s living situation. We defer to those credibility determinations, Kessler v
Kessler, 295 Mich App 54, 64; 811 NW2d 39 (2011), and conclude that the trial court’s factual
findings with respect to factor (a) were not against the great weight of the evidence.

        With respect to factor (b), whether the relocation was inspired by the relocating parent’s
desire to frustrate parenting time, the trial court found that there was no evidence to support such
a conclusion. Defendant argues that this finding was against the great weight of the evidence
based on his and his wife’s testimony that plaintiff has previously refused parenting time and
was attempting to replace defendant with her new husband as the child’s father. However, while
that is an accurate summary of defendant’s and his wife’s testimony, it is also true that plaintiff
allowed defendant to exercise an additional week of parenting time outside of what the divorce
judgment required. Plaintiff also expressly testified that relocating was not inspired by a desire
to defeat defendant’s parenting time. The trial court found plaintiff’s and her husband’s
testimony more credible, and, again, that is a determination that we defer to, Kessler, 295 Mich
App at 64, and conclude that the trial court’s factual findings with respect to factor (b) were not
against the great weight of the evidence.

        The same is true with respect to factor (c), whether there is a realistic opportunity for the
non-relocating parent to preserve and foster the parental relationship that was previously
enjoyed. The trial court found that such a relationship could “be preserved with a visitation
schedule and Skype or video communication.” Defendant contends that this finding was against
the great weight of the evidence because such a substantial decrease in parenting time would
prevent a realistic opportunity to preserve and foster a relationship with the child. While it
certainly appears that defendant’s parenting time is reduced by the new parenting-time schedule,
the inquiry under factor (c) is not whether the new parenting schedule is equivalent to the old;
rather, it is “whether the proposed parenting-time schedule provides ‘a realistic opportunity to
preserve and foster the parental relationship previously enjoyed’ by the nonrelocating parent.”
McKimmy, 291 Mich App at 584 (citation omitted); see also Brown v Loveman, 260 Mich App
576, 603; 680 NW2d 432 (2004). While defendant’s parenting time is not equivalent, he

                                                 -3-
nevertheless maintains a realistic opportunity to preserve and foster a relationship with parenting
time during summer, winter, and spring breaks, as well as the opportunity to communicate with
the child twice per week via webcam or telephone. Thus, we conclude that the trial court’s
factual findings with respect to factor (c) were not against the great weight of the evidence.

        Given our conclusion that the trial court’s factual findings with respect to the factors set
forth in MCL 722.31 were not against the great weight of the evidence, we also conclude that the
court did not abuse its discretion in granting plaintiff’s motion to change the child’s domicile.

       For the same reason, we need not address defendant’s mootness argument. We also
decline “to impose sanctions” as requested by plaintiff.

       Affirmed.

                                                             /s/ Henry William Saad
                                                             /s/ Cynthia Diane Stephens
                                                             /s/ Colleen A. O'Brien




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