Appeals Court: Evidence Did Not Support Dad Moving To Texas With Children

The trial court erroneously granted a father’s motion to move to Texas with the parties’ children because, among other things, there was insufficient evidence the children’s lives would be improved by relocating, the Michigan Court of Appeals has ruled.

The parties in Yarde v Yarde (Docket No. 359309) are divorced and share joint legal custody of their two children. The plaintiff-father has primary physical custody of the children and the defendant-mother, who is in the U.S. Air Force, has most of the summer, holiday and school breaks with them. The divorce judgment also provided that the children’s domicile is in Michigan and could not be changed without approval of the Calhoun County Circuit Court.

The defendant was stationed in Georgia at the time of the divorce proceedings. The plaintiff and the children lived in Texas during part of the divorce proceedings, but by the time the divorce judgment was entered they had relocated to the Battle Creek, Michigan area to live with the plaintiff’s mother. In an effort to be closer to the children, the defendant subsequently negotiated a transfer to Ohio, where she lived a relatively short distance from the children.

Shortly after the defendant relocated to Ohio, the plaintiff filed a motion for change of domicile. He asked the Calhoun County trial court to let him move to Texas with the children, where he maintained that he had a job opportunity. He asserted the defendant’s parenting-time schedule would not be affected by the move. The defendant objected to the move, pointing out that she had just relocated to Ohio and was now closer to the children. The defendant also sought more parenting time and an increase in child support.

The Calhoun County trial court granted the plaintiff’s motion to move the children to Texas with him. It also granted the defendant’s motion for increased parenting time.

The Court of Appeals vacated the trial court’s order, finding that the plaintiff “provided little specific evidence” to support that the change in domicile “had the capacity to improve the quality of life for the children, other than the uncertain promise of an increased income.”

Moreover, “[i]t certainly appears that plaintiff’s plan to change the children’s domicile was inspired to frustrate the parenting-time schedule, and the trial court’s finding to the contrary was against the great weight of the evidence,” the Court of Appeals observed.

Judges Michelle M. Rick, Mark T. Boonstra and Colleen A. O’Brien were on the panel that issued the unpublished opinion.

‘Little Specific Evidence’

In its analysis, the Court of Appeals examined MCL 722.31, the statute governing the legal residence of children who are subject to a custody order. The appeals court looked at MCL 722.31(4) in particular, which says:

(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.

Considering MCL 722.31(4)(a), the Court of Appeals noted the Calhoun County trial court found that the plaintiff’s move to Texas could improve the overall quality of the children’s lives. “However, beyond finding that plaintiff would potentially earn more money in Texas … there was little evidence to support how the move would improve the children’s lives,” the appeals court said. “Plaintiff testified that the increased income would allow him to buy things for the children, take them to an amusement park, or have them participate in after-school programs. Plaintiff never testified that the children were without anything that they needed, or even wanted, in Michigan.”

In addition, the Court of Appeals said the plaintiff did not establish that his earning potential was greater in Texas than if he chose to work more hours at his job in Michigan. Moreover, regarding the trial court’s finding that the plaintiff would only be working in one location in Texas, while his Michigan job occasionally required him to travel, “there was no evidence regarding plaintiff routinely working outside out of Battle Creek or that it interfered with his parenting time, even if plaintiff had at some point worked in other cities.”

Therefore, the plaintiff’s claims and the trial court’s findings regarding an improvement in the children’s lives “were largely conclusory and lacking evidence to support them,” the Court of Appeals stated.

The Court of Appeals also pointed out:

• Although the plaintiff claimed the children’s lives would be improved because their aunt could help them in Texas, the record showed that grandparents, aunts, uncles and cousins lived near the children in Michigan.

• In Michigan, the children were “much closer” to the defendant and were “near both sides of their family.”

• Although the plaintiff testified that “everything [was] just better” in Texas, he did not specifically elaborate as to how the children’s lives would be improved.

• The plaintiff had “unclear plans for housing” in Texas.

“On the whole, plaintiff provided little specific evidence to support the conclusion that the proposed change in domicile had the capacity to improve the quality of life for the children, other than the uncertain promise of an increased income,” the Court of Appeals said. “Yet, standing alone, we conclude that the trial court’s findings concerning this factor were not against the great weight of the evidence.”

‘Clear Legal Error’

The Court of Appeals continued by explaining that, when examining MCL 722.31(4)(b) and (c), the trial court made several findings that were “against the great weight of the evidence.”

Looking at MCL 722.31(4)(b), the Court of Appeals noted that when the plaintiff first began considering a move to Texas, he did not tell the defendant. The plaintiff “without ever mentioning the potential move to defendant, asked the trial court for permission to move to Texas approximately six months after defendant began the process of moving closer to the children. … Had plaintiff told defendant about his moving plans at any point in the months that she was preparing her move, defendant could have attempted to move to a base closer to plaintiff’s intended destination; defendant testified that there were multiple Air Force bases in Texas to which she could have transferred, but defendant could potentially not be approved for another move for four years after having so recently transferred.”

Soon after the defendant moved to Ohio to be closer to the children, the plaintiff, “without discussing the matter with defendant, almost immediately sought to move the children to Texas,” the Court of Appeals pointed out. Although the record was unclear whether the plaintiff knew the defendant would be restricted from making another move soon after moving to Ohio, “he was undisputedly aware that defendant had undergone a fairly laborious process of obtaining approval for the move in the first place. It certainly appears that plaintiff’s plan to change the children’s domicile was inspired to frustrate the parenting-time schedule, and the trial court’s finding to the contrary was against the great weight of the evidence.”

Regarding MCL 722.31(4)(c), the Court of Appeals emphasized the defendant had only lived in Ohio “for a matter of weeks” when the plaintiff filed his change of domicile motion. “However, defendant exercised all of her parenting time, including extra weekends, in the time that she lived [in Ohio]. Moreover, defendant also testified that she would need to take leave time in order to facilitate the transportation of the children and parenting time, if their domicile were changed to Texas.”

The trial court’s “essential error” when analyzing MCL 722.31(4)(b) and (c), the Court of Appeals explained, was its “failure to compare the potential move to Texas to the current circumstances of the parties, i.e., that defendant lived in Ohio, was a 3 ½-hour drive away from the children and could not transfer again for a significant period of time. Instead, the trial court repeatedly compared the proposed move to Texas … to the situation when defendant lived in Georgia …. But trial courts are generally required to consider up-to-date information in child custody proceedings. … Moreover, the trial court’s findings concerning these factors failed to consider the factors with the children as the primary focus.”

According to the Court of Appeals, the trial court wrongly focused on the fact that the parties had previously lived a similar distance apart and did not consider the proposed move to Texas “in the context of dramatically increasing the travel time for the children when compared to defendant’s residence in Ohio.” Therefore, “the trial court committed clear error in its analysis … and that … error led to findings that were against the great weight of the evidence.”

In conclusion, the trial court abused its discretion by finding that a preponderance of the evidence supported the plaintiff’s motion for a change of domicile, the Court of Appeals said.

“The trial court’s order granting plaintiff’s motion for change of domicile must be vacated.”