‘Domicile Provision’ Invalid, Best Interests Of Children Must Be Considered

In this custody case, the trial court correctly invalidated the “domicile provision” in the parties’ consent judgment of divorce and found that the best interests of the children must be considered before letting the defendant move the children out-of-state, the Michigan Court of Appeals has ruled. 

When the parties in Moultrie v Moultrie (Docket No. 367948) were married, the plaintiff committed domestic violence against the defendant. The violence resulted in the plaintiff’s criminal conviction. When the parties separated, the defendant took their two minor children to Indiana, where she had family. The children attended school there. The parties filed for divorce and, when the divorce was finalized by a consent judgment, the defendant returned to Michigan with the children. The consent judgment of divorce included a stipulation that “the domicile of the minor children shall be the State of Indiana.” It also included a “domicile provision,” under which the defendant “may return to the State of Indiana without having to seek consent from the Court” if the plaintiff committed an act of domestic violence against her.  

After the defendant returned to Michigan with the children, the plaintiff allegedly committed additional acts of domestic violence against her. As a result, the defendant returned to Indiana with the children. Thereafter, the plaintiff picked up the children for his parenting time, drove them to Michigan and refused to return them to the defendant.  

The parties filed motions in the Ingham County Circuit Court regarding the defendant’s rights under the judgment of divorce. The trial court ruled that, notwithstanding the judgment of divorce, the children had not been domiciled in Indiana and struck the domicile provision under MCR 3.211(C)(1). The trial court also referenced the 100-mile rule in MCL 722.31(1) and found the proposed move would change the children’s established custodial environment, requiring it to consider the best interests of the children. The trial court referred the matter for an evidentiary hearing. The defendant appealed.  

The Court of Appeals affirmed in part and reversed in part.  

The defendant’s “proposed move to Indiana constitutes a change in the children’s residence,” the Court of Appeals said. “The parties’ stipulation that the children had a domicile in Indiana does not preclude the operation of MCR 3.211(C)(1). Thus, the trial court properly struck the domicile provision under MCR 3.211(C)(1).” 

Regarding the 100-mile rule, although the trial court “erred to the extent it held that it must consider the D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976)] factors,” it correctly held that it had to consider the best interests of the children under MCL 722.23 before allowing the defendant to move the children from Michigan to Indiana, the Court of Appeals said. 

Judge Colleen A. O’Brien, Judge Michael J. Kelly and Judge Kathleen A. Feeney were on the panel that issued the unpublished opinion. 

Domicile Provision 

On appeal, the defendant argued that MCR 3.211(C)(1) did not apply to invalidate the domicile provision because the parties had stipulated the children were domiciled in Indiana. 

MCR 3.211(C)(1) says the “domicile or residence of the minor may not be moved from Michigan without the approval of” the trial court, the Court of Appeals noted. “This Court has held that even if a parent has sole custody of the child, even if the 100-mile rule does not apply, and even if the trial court has no practical discretion to exercise, the parent must still obtain the trial court’s approval before moving a child out of Michigan. … Further, any purported waiver in a judgment of divorce permitting a party to move the child without court approval would contravene MCR 3.211(C) and is unenforceable. … Thus, the trial court was required to strike the domicile provision.” 

Although the trial court “clearly erred” by finding the children did not reside in Indiana when the plaintiff filed for divorce, MCR 3.211(C)(1) “addresses moving a child’s ‘domicile or residence’ and having a domicile in Indiana does not preclude having multiple residences elsewhere,” the Court of Appeals said. “There is no dispute that the children lived in East Lansing for approximately two years before the move at issue, so [the defendant’s] proposed move to Indiana constitutes a change in the children’s residence.” 

The parties’ stipulation that the children had a domicile in Indiana “does not preclude the operation of MCR 3.211(C)(1),” the Court of Appeals explained. “Thus, the trial court properly struck the domicile provision under MCR 3.211(C)(1).”

100-Mile Rule 

Next, the Court of Appeals examined whether the trial court improperly held that the 100-mile rule applied.  

“In general, MCL 722.31(1) prohibits moving the legal residence of a child ‘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,’” the Court of Appeals observed. “That prohibition is subject to several exceptions, including, in relevant part, ‘if, at the time of the commencement of the action in which the custody order is issued, the child’s 2 residences were more than 100 miles apart.’” 

Here, the Court of Appeals said that MCL 722.31(1) did not apply “because the children had a legal residence in Indianapolis when plaintiff filed for divorce, and because that residence was more than 100 miles from [the plaintiff’s] residence ….” The Court of Appeals reasserted the trial court “clearly erred” by finding the children did not reside in Indiana when the defendant filed for divorce. “To the extent that the provision in the parties’ consent judgment of divorce stating that ‘the domicile of the minor children shall be the State of Indiana’ was a factual stipulation, the trial court erred by disregarding it. … If the children were domiciled in Indiana, they necessarily resided there.” 

In addition, “the evidence also supports that stipulation,” the Court of Appeals wrote. “The children were attending an elementary school in Indiana …, and it is difficult to imagine how they could have done so without legally residing in Indiana. [The plaintiff] filed his complaint for divorce in October 2020. [The defendant] was awarded the marital home in East Lansing and the uniform child support order listed [her] address as being at the marital home. However, that does not prove that [the defendant] or the children were actually living at the marital home. Rather, she moved back to East Lansing when the terms of the divorce were settled. To the extent the trial court found that the children did not legally reside in Indiana when the divorce proceedings were commenced, the evidence clearly preponderates in the opposite direction.” 

According to the Court of Appeals, if the 100-mile rule applied, the trial court would have been required to consider the D’Onofrio factors in MCL 722.31(4) before it could allow the defendant to move the children. “In contrast, if the 100-mile rule does not apply, ‘a parent must still seek the trial court’s permission under MCR 3.211(C)(1) before moving a child subject to a custody order out of this state,’ but the trial court should not consider the D’Onofrio factors.”  

Because the 100-mile rule did not apply, “the trial court should not consider the D’Onofrio factors when determining whether it is permissible to move the children out of the state under MCR 3.211(C)(1),” the Court of Appeals said. “In doing so, because [the defendant] and [the plaintiff] share custody, the trial court must consider whether the move would constitute a change in an established custodial environment. … If it would constitute a change in an established custodial environment, MCL 722.27(1)(c) requires the court to analyze the best interests of the children under MCL 722.23. … In this case, the trial court recognized its obligations under MCL 722.27(1)(c) and MCL 722.23, and [the defendant] does not challenge the trial court’s finding that the proposed move would alter the established custodial environment.”

Therefore, “the trial court erred to the extent it held that it must consider the D’Onofrio factors, but it did not err to the extent it held that it must consider the best interests of the children under MCL 722.23 before permitting [the defendant] to move the children from Michigan to Indiana,” the Court of Appeals concluded. “We reverse the trial court’s order to the extent it holds that the children were not domiciled or did not reside in Indiana at the time [the plaintiff] filed for divorce, and to the extent it holds that the 100-mile rule applies, and we remand for further proceedings ….”