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STATE OF MICHIGAN COURT OF APPEALS

LILLY HAHN, Plaintiff-Appellee, v BENJAMIN BELOTE, Defendant-Appellant.

UNPUBLISHED January 20, 2009

No. 286077 Branch Circuit Court LC No. 05-050287-DS

Before: Beckering, P.J., and Whitbeck and M. J. Kelly, JJ. PER CURIAM. Defendant Benjamin Belote appeals as of right the trial court's decisions to deny Belote's motion for change in domicile from Ohio to Michigan, and to grant a change in physical custody giving him and plaintiff Lilly Hahn joint physical custody of their minor children. We affirm. I. Basic Facts And Procedural History Hahn and Belote were never married, but they have two sons together. Hahn and Belote met in 2001, and Hahn became pregnant in 2002. They lived with Belote's parents in Grand Rapids, Michigan from June 2002 until November 30, 2002. At that time, Hahn and Belote moved into an apartment in Grand Rapids. After their first son was born, Hahn and Belote continued to live together in Grand Rapids. In October 2003, Hahn and Belote were involved in an altercation, and Hahn moved to Sunbury, Ohio. After she moved to Ohio, Hahn and Belote continued to date sporadically. In February 2005, Hahn and Belote attempted to reconcile their relationship and leased an apartment together in Coldwater, Michigan. Shortly after moving to Coldwater, Hahn discovered that she was pregnant with their second son. After learning that she was pregnant, Hahn and Belote had another altercation, and Hahn moved back to Ohio. After another attempt to reconcile in 2005, Hahn filed an action for child support in Michigan, but she permanently moved to Ohio. Belote thereafter moved to Ohio in May 2005. In March 2006, the trial court ordered Hahn and Belote to share joint legal custody of their children. The trial court also ordered that Hahn was to retain physical custody and granted Belote parenting time of one full week and one weekend per month. In August 2006, police were dispatched to Hahn's residence because she threatened suicide and cut herself. In February 2007, the Friend of the Court recommended that Belote be given primary care of the children. After an evidentiary hearing, the trial court ordered that Hahn and Belote continue to share joint legal custody, but the court felt it was in the children's best interest to change primary care of the -1-

children to Belote. The trial court cited Hahn's mental health issues and lack of a satisfactory stable environment as reasons to change custody. The trial court granted Hahn parenting time of one full week and one weekend per month; however, the parenting time was contingent upon Hahn complying with the requirements proscribed by mental health professionals. The trial court stated that this was a "provisional order" and that if Hahn complied with the conditions, the trial court would consider an expansion of parenting time. On October 31, 2007, Belote moved for change of domicile and sought permission to move back to Michigan. In February 2008, Hahn moved for a change in custody, asking the trial court to order joint physical custody. Both motions were heard at the same time. Belote testified that after moving to Ohio in 2005, he was employed at Advanced Auto Distribution earning $12.75 an hour. In October 2007, Belote was laid off because of a lack of business. After he was laid off, Belote was temporarily employed at a Ford Dealership for approximately three weeks as a mechanic earning $16 an hour, but he was laid off when there was insufficient business to sustain his position. Belote receives unemployment and food stamp assistance. Belote also supplements his income with his savings and using his mechanic skills to perform side jobs. Belote wished to move to Michigan because the job prospects for his position were better, and he had family in Michigan to help support the children. Since losing his job, Belote utilized various services offered through the Ohio Work Force Program to improve his resume and interview skills. Belote also performed several internet searches looking for available jobs in the automotive or mechanical field. Over a 60-day period, Belote searched the five counties closest to his residence and found only one job matching his criteria. Belote excluded the southern part of Columbus, Ohio in his job search because the commute would be too long from his present home. Additionally, Belote has performed several job searches through the Michigan Talent Bank and, using the same criteria, found 78 jobs over a 30-day period. Belote received two job offers from employers in Michigan but turned them down because he was not allowed to move the children out of Ohio. Belote is on good terms with the manager at one of the employers that offered him a job, and he expected that he would be offered a job again when a position became available. In addition, the two offered jobs in Michigan had a higher rate of pay than Belote was earning in Ohio. Belote acknowledged that the overall unemployment rate was worse in Michigan than Ohio, but he testified that in his specific field, there were more opportunities in Michigan. Belote also testified that he was not moving to take the children away from Hahn, and he submitted a proposed plan for parenting time. Belote proposed that Hahn receive one weekend a month and six weeks during the summertime. As for holidays and vacations, Belote proposed that the parties either split the time or have alternating schedules with the children. Belote planned to move approximately 300 miles away from Hahn and recognized that parenting time would be a struggle. Belote proposed that he meet Hahn at the halfway point in Fort Wayne, Indiana. In addition, to foster a relationship between the children and Hahn, and because telephone calls were a point of contention between Hahn and Belote, Belote proposed that he purchase a cellular telephone for the children to enable Hahn to call them directly. Hahn testified that Belote told her three weeks after he was awarded custody that he and the children were planning to move back to Michigan. Hahn stated that Belote wanted to return to Michigan because his dad and uncle were sick. Hahn refused to give permission for Belote to -2-

move the children to Michigan because she felt that she did not get enough time with the children under the existing arrangement, and she recognized that if the children moved to Michigan she would see them even less. Hahn testified that Belote refuses to allow her to speak over the telephone with the children while they are with him. Despite the fact that Hahn and Belote agreed to a telephone schedule of 5:00 p.m. to 8:00 p.m. on Wednesdays and Saturday, Hahn said that sometimes Belote would just answer the telephone then hang up without talking. Hahn testified that she deserved joint custody of the children because she fostered a good relationship between the children and Belote by avoiding negative talk about Belote. Hahn attended church three out of four weeks, did not use drugs, and only consumed alcohol occasionally. Hahn testified that she compiled with the trial court order that she receive mental health treatment by seeing a therapist and taking medication. In addition, Hahn said she was learning stress coping techniques and had not cut herself or attempted suicide since the incident in August 2006. Hahn further testified that her fianc

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