100-Mile Rule ‘Procedural Misstep’ Requires Remand, Re-Evaluation
In denying a divorced mother’s request for a change of domicile for herself and the parties’ children, the trial court made a “procedural misstep” by not properly addressing the 100-mile rule and, therefore, the case must be remanded, the Michigan Court of Appeals has ruled.
The parties in Kelly v Sholander (Docket No. 367943) were divorced and had three children together. The plaintiff-mother filed a motion in the Marquette County Circuit Court for a change of domicile, asking to move with the children from Marquette to Atlantic Mine, Michigan. In her motion, she noted the relocation was “approximately 115 miles from Marquette, just barely exceeding the 100-mile rule” in MCL 722.31(1). The trial court denied the plaintiff’s motion.
The plaintiff appealed.
The Court of Appeals vacated the trial court’s decision and remanded the case.
The trial court’s “failure to address the application of the 100-mile rule set forth in MCL 722.31(1) was a procedural misstep that requires further factual findings,” the Court of Appeals wrote. “If the trial court finds that plaintiff’s proposed move is subject to the 100-mile rule, it must also reevaluate the change-of-residence factors set forth in MCL 722.31(4)(a) and (b).”
Judge Michael J. Riordan, Judge Michelle M. Rick and Judge Noah P. Hood were on the panel that issued the unpublished opinion.
Background
The plaintiff and the defendant were divorced in 2021. They had joint legal and physical custody of their minor children. The judgment of divorce also provided that “[a] parent whose custody or parenting time of a child is governed by this order will not change the legal residence of the child except in compliance with … MCL 722.31, unless otherwise specified in this order or the Agreement.”
According to the trial court, the parties had a “contentious relationship” after their divorce and the record was “replete with references to the difficulties in these parties’ relationship.”
The plaintiff filed a motion for a change of domicile in 2023, requesting to move with the children from Marquette to Atlantic Mine, Michigan, where her then-fiancé (now husband) resided. In support of her motion, the plaintiff said the new residence was “approximately 115 miles from Marquette, just barely exceeding the 100-mile rule.” The defendant opposed the motion.
After an evidentiary hearing, the trial court denied the plaintiff’s motion, citing in part the parties’ post-divorce history of “contentious relations,” as well as concerns about the children attending a different school district.
The plaintiff appealed.
100-Mile Rule
In its analysis, the Court of Appeals first examined the 100-mile rule in MCL 722.31(1), noting it is “the threshold inquiry in a multi-step approach for evaluating a motion for a change of residence.”
MCL 722.31(1) says: “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.”
According to the Court of Appeals, “[i]mplicit in MCL 722.31(1) … is that a custodial parent may move a child’s residence by less than 100 miles without first obtaining permission from the court or consent from the other party.”
After the trial court makes this threshold inquiry, “[a] motion for a change of domicile essentially requires a four-step approach,” the Court of Appeals said, citing Rains v Rains, 301 Mich App 313 (2013). This four-step approach is as follows:
determine whether the moving party has established by a preponderance of the evidence that the factors enumerated in MCL 722.31(4) support a motion for a change of domicile.
if the factors support a change in domicile, determine whether an established custodial environment exists.
if an established custodial environment exists, determine whether the change of domicile would modify or alter that established custodial environment.
if – and only if – 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.
Here, the parties and the trial court “presumed that the 100-mile rule limitation of MCL 722.31(1) applied such that plaintiff’s proposed move required defendant’s or the trial court’s consent,” the Court of Appeals said. “When asked at the evidentiary hearing ‘how many miles’ separated Marquette from her proposed new residence, plaintiff replied, ‘from [defendant’s] house to that address is 112 miles,’ and ‘from the city center of Marquette, from my house, it’s about 102 miles to [her husband’s] house.’ Yet, the 100-mile rule limitation imposed by MCL 722.31(1) refers to ‘radial’ or straight-line miles, rather than ‘road’ or driving miles.”
In support of her motion, the plaintiff indicated that her proposed new residence in Atlantic Mine was “a straight line distance of 65.91 miles and driving distance of 107.43 miles from the parties’ home at the commencement of the divorce action,” the Court of Appeals observed. “Plaintiff also cites Bowers [v VanderMeulen-Bowers, 278 Mich App 287 (2008)] for the proposition that ‘[t]he proper method for calculating the distance between the current legal residence and the proposed residence is to measure the distance by radial miles, i.e., on a straight line or “as the crow flies,” rather than by road miles.’ But plaintiff fails to acknowledge that her straight-line distance calculation calls into question the trial court’s application of MCL 722.31(1) and (4) in the first instance.”
The Court of Appeals further noted it was “not obligated” to accept the plaintiff’s estimate of the straight-line distance between the children’s current legal residence and her proposed legal residence. “But we do take judicial notice [under MRE 201(b)] that Marquette and Atlantic Mine are separated in part by Keweenaw Bay, such that the driving distance between them is greater than the straight-line distance between them.”
Next, the Court of Appeals indicated that while it does not “typically address matters over which the parties and the trial court expressed no disagreement,” it said the trial court’s analysis of the MCL 722.31(4) factors – “without first addressing the application of MCL 722.31(1)’s 100-mile rule” – was a “procedural misstep that requires further factual development and findings.” Therefore, “[w]e … remand this case to the trial court to determine on the record whether plaintiff’s proposed move implicates MCL 722.31(1)’s 100-mile rule.”
Factors Misapplied
The Court of Appeals continued by reviewing the trial court’s findings and conclusions regarding the factors in MCL 722.31(4), “in the event that the 100-mile rule is implicated and the trial court proceeds to address whether the proposed move alters the children’s established custodial environment and serves their best interests.”
Specifically, the plaintiff argued the trial court wrongly applied two factors in MCL 722.31(4): (a) “whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent,” and (b) “the parents’ compliance with, and utilization of parenting time and whether the change would frustrate that utilization.”
The Court of Appeals agreed.
“Concerning factor (a), the trial court recounted that the parties’ divorce proceedings two years earlier, including plaintiff’s unsuccessful motion to move the children to Michigan’s lower peninsula and prior dispute regarding a change to the children’s schools,” the Court of Appeals wrote. “The court … found that the proposed move had the capacity to improve plaintiff’s quality of life. However, the court opined that the proposed move offered no such advantage to the children. … We defer to the trial court’s finding that, although both school districts ‘appear to offer an appropriate learning environment,’ the proposed change of schools did not have the capacity to improve (or diminish) the children’s quality of life.”
However, the trial court “did not decide factor (a) in relation to the children entirely on that basis,” the Court of Appeals said. “It also expressed concerns about the greater commuting distance between the parties’ residences, especially in light of the parties’ poor relationship. We conclude that the court displayed an excessive concern for the anticipated additional strain on the parties’ relationship when the issue before it was how the proposed move would impact the children’s quality of life. … [T]he court should have accounted for the additional logistical burdens the proposed move could cause without presuming that the parties would allow any resulting exacerbation of their ‘tumultuous’ relationship to impact the children’s quality of life.”
The trial court also misapplied factor (b), which “concerns the degree to which each parent has complied with, and taken advantage of, court-ordered parenting time, along with the extent to which ‘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,’” the Court of Appeals explained. “MCL 722.31(4)(b) calls for two determinations – the extent to which the parties have properly exercised parenting time, and whether the moving parent is motivated by a desire to frustrate the other parent in that regard. It does not ask about the parents’ discord with each other, their satisfaction with the pertinent custody arrangement, or how well they communicate with each other.”
Accordingly, “we agree with plaintiff that the trial court should have recognized that, given its findings regarding the parties’ compliance with parenting time, and plaintiff’s lack of pernicious motive, factor (b) did not pose an impediment to plaintiff’s plan to relocate,” the Court of Appeals said.
As a result, “we vacate the trial court’s order denying plaintiff’s motion for a change of residence and remand for further proceedings,” the Court of Appeals concluded. “If plaintiff’s proposed move is found to be subject to the 100-mile rule of MCL 722.31(1), the trial court is to reevaluate the factors set forth in MCL 722.31(4)(a) and (b) ….”
