            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



TYRA LYNAE GRAYER,                                                 UNPUBLISHED
                                                                   April 11, 2019
               Plaintiff/Counterdefendant-
               Appellee,

v                                                                  No. 345322
                                                                   Jackson Circuit Court
CURTIS GRAYER III,                                                 LC No. 15-000686-DM

               Defendant/Counterplaintiff-
               Appellant.


Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

       Defendant, Curtis Grayer III, appeals as of right the trial court’s opinion and order
denying his motion regarding a change of custody and change of domicile for the two minor
children he shares with plaintiff, Tyra Lynae Grayer. We vacate the trial court’s opinion and
remand for further proceedings.

       Plaintiff and defendant enjoyed joint physical and legal custody of their two minor
children since their divorce. Defendant recently moved from Michigan to Indiana to pursue an
education at Notre Dame Law School. Defendant sought sole legal custody of the children, a
change of domicile, and increased parenting time. After an evidentiary hearing and an interview
with the children, the trial court issued an order finding that defendant had not proven by clear
and convincing evidence that a change of domicile was in the children’s best interests. The trial
court denied defendant’s motion for a change of custody and a change of domicile and instead
awarded primary physical custody to plaintiff. Defendant now appeals.

       Defendant raises a number of claims on appeal: the trial court erred when it denied his
motion for a change of domicile, it erred while analyzing the best-interest factors, it erred when
denying his proposed parenting-time schedule, and it erred when it changed the parties’ custody
agreement. Because defendant’s first argument is meritorious, we decline to review the
remaining claims on appeal.




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         Generally, 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.”
MCL 722.28. “This Court reviews discretionary rulings, including a trial court’s custody and
parenting-time decisions, for an abuse of discretion.” Mitchell v Mitchell, 296 Mich App 513,
522; 823 NW2d 153 (2012). An abuse of discretion with regard to a custody issue occurs “when
the trial court’s decision 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.” Berger v Berger,
277 Mich App 700, 705; 747 NW2d 336 (2008). Additionally, a trial court commits “clear legal
error” when it chooses, interprets, or applies the law incorrectly. Fletcher v Fletcher, 447 Mich
871, 881; 526 NW2d 889 (1994).

         Generally, “[a] child whose parental custody is governed by court order has, for the
purposes of this section, a legal residence with each parent,” and the child’s parents may not
change the legal residence of the child to a location more than 100 miles from their location at
the time the original order was issued. MCL 722.31(1). When a party seeks a change of
domicile over 100 miles, a trial court must consider the following factors, with the children as
the trial court’s primary focus:

               (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).]

        The trial court’s process for deciding a motion for change of domicile “essentially
requires a four-step approach.” Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709 (2013).




                                                -2-
                 First, a trial court must determine whether the moving party has
         established by a preponderance of the evidence that the factors enumerated in
         MCL 722.31(4), the so-called D’Onofrio[1] factors, support a motion for a change
         of domicile. Second, if the factors support a change in domicile, then the trial
         court must then determine whether an established custodial environment exists.
         Third, if an established custodial environment exists, the trial court must then
         determine whether the change of domicile would modify or alter that established
         custodial environment. Finally, if, and only if, the trial court finds that a change
         of domicile would modify or alter the child’s established custodial environment
         must the trial court determine whether the change in domicile would be in the
         child’s best interests by considering whether the best-interest factors in MCL
         722.23 have been established by clear and convincing evidence. [Id.]

        Defendant submits that the trial court erred in the first step of its analysis when it applied
MCL 722.31(4)(c). Regarding this factor, the trial court stated that “[g]iven the parties [sic]
established parenting time schedule, and Plaintiff-Mother’s custodial relationship with the
children, a move of this distance would ultimately disrupt and significantly alter the current
arrangements.” A trial court’s inquiry on this matter should not be whether the proposed
parenting-time schedule is equivalent to the old; rather, it should be “whether the proposed
parenting-time schedule provides a realistic opportunity to preserve and foster the parental
relationship previously enjoyed” by the nonmoving parent. McKimmy v Melling, 291 Mich App
577, 584; 805 NW2d 615 (2011) (cleaned up).

        Defendant argues that the trial court erred because it considered the effect of the move on
plaintiff’s relationship with the children, but it did not consider the effect of the move on
defendant’s relationship with the children. This argument is without merit. Defendant’s motion
centers around his relationship with the children: if he moves and has primary physical custody
of the children, certainly he will be able to maintain his relationship with them. Therefore, the
trial court must inquire only whether the nonmoving parent’s relationship will be preserved. See
id. The trial court did not err when it failed to state that defendant’s relationship with the
children would be preserved if he moved with the children.

        The trial court did commit clear legal error, however, when it applied Subsection (c).
The proper question is not whether plaintiff could maintain the current visiting schedule. Id. But
this is what the trial court considered, finding that “a move of this distance would ultimately
disrupt and significantly alter the current arrangements.” The trial court only considered
whether, after defendant moved, plaintiff would be able to continue her current parenting-time
arrangement. This was improper. See id. The trial court should have, instead, considered
whether the proposed schedule would provide plaintiff with a realistic opportunity to maintain
her relationships with the children. See id. Therefore, the trial court’s decision was “improperly
influenced by an erroneous interpretation of factor (c).” Id. at 584-585. The trial court clearly
erred. See Fletcher, 447 Mich at 881. Because the trial court erred on this point, defendant is


1
    D’Onofrio v D’Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976).


                                                 -3-
entitled to a remand. See McKimmy, 291 Mich App at 585. We decline to review the remaining
issues raised by defendant on appeal.

        Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                        /s/ Brock A. Swartzle
                                                        /s/ Mark J. Cavanagh
                                                        /s/ Thomas C. Cameron




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