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STATE OF MICHIGAN
COURT OF APPEALS


RITA P. SPIRES, Plaintiff-Appellee, v ANTHONY J. BERGMAN, Defendant-Appellant.

FOR PUBLICATION August 21, 2007 9:00 a.m. Nos. 276722; 276841 Ottawa Circuit Court Family Division LC No. 01-041876-DP Official Reported Version

Before: Bandstra, P.J., and Cavanagh and Jansen, JJ. PER CURIAM. In Docket No. 276722, defendant appeals by leave granted the family court's order changing the domicile of the parties' minor child. In Docket No. 276841, defendant appeals by right the family court's custody determination, which is contained in the same order. We affirm in part, vacate in part, and remand for further proceedings on defendant's motion to change custody. I The parties are the parents of Malachi Joseph Bergman, born in 2001. The parties never married but defendant acknowledged paternity the day the child was born. An order of filiation was later entered. Plaintiff received sole legal and physical custody of the child, and defendant received reasonable parenting time. The original order establishing paternity and custody provided that "the domicile or residence of the minor child shall not be changed from the State of Michigan without prior approval of [the court]." In 2004, plaintiff filed a motion seeking to change the child's domicile from Michigan to Texas. Plaintiff alleged that she would have greater family support in Texas than she had in Michigan at that time. Defendant opposed the motion, arguing that the proposed move to Texas would "not allow meaningful parenting time and would further sever a warm and loving bond between the minor child and his extended family here in Michigan." In addition, defendant filed a motion requesting that the family court memorialize the parties' informal parenting-time agreement.

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The parties appeared before a referee in September 2004, and agreed that defendant would have parenting time on alternate weekends. The family court entered a written order to this effect, but apparently did not rule on plaintiff 's motion to change domicile at that time. In October 2006, defendant moved for sole legal and physical custody of the child. Defendant argued that such a change was warranted because circumstances had changed and plaintiff could not provide a stable home for their son. Plaintiff responded that defendant had not met his burden of showing a change in circumstances to warrant a change of custody. Also in response, plaintiff again moved to change the child's domicile from Michigan to Texas. Plaintiff argued that MCL 722.31 did not apply because she had sole legal custody. In December 2006, the family court held a hearing on the parties' motions. However, rather than conducting a full evidentiary hearing to decide whether a change of custody or change of domicile was warranted, the court simply commented that the parties had reached a reasonable resolution of the matter. Plaintiff 's attorney placed the parties' agreement on the record, stating that plaintiff could move to Waco, Texas, with the child as long as defendant would receive joint legal custody and plaintiff would not move more than 100 miles from Waco without the court's permission. Plaintiff 's attorney also stated that the parties had agreed to alter defendant's parenting time. Defendant's attorney then objected to the move to Texas, and stated that defendant did not consent to the change of domicile. However, defendant's attorney also stated that because the court was most likely going to approve the change of domicile, defendant wished "to consent to joint legal [custody], as well as the parenting time that was explained by [plaintiff 's attorney], in the event the Court makes the decision that it has no choice . . . but to allow [the change of domicile]." The court then granted plaintiff 's motion for the change of domicile. The court opined that because plaintiff had sole legal custody of the child, MCL 722.31 did not apply in this case, and that it was therefore not required to consider the factors enumerated in MCL 722.31(4). In fact, the court concluded that because plaintiff had sole legal custody, it essentially had no choice but to approve the proposed change of domicile: So, the bottom line is the Court is determining that the plaintiff does not need permission of this Court, or the permission of the defendant, to relocate outside of the state of Michigan. Therefore, I am granting her request over the defendant's objection . . . . So, that is the decision of the Court as it pertains to that. Concerning defendant's pending motion for a change of custody, the court stated that it would "take the rest of . . . the agreement, which is by way of stipulation." The court granted joint legal custody to both parties. II Defendant first argues that the family court erred by failing to hold a full evidentiary hearing and by failing to make findings of fact with respect to plaintiff 's motion to change the -2-


child's domicile. Specifically, defendant contends that Michigan common law and MCR 3.211(C) required the court to consider the factors enumerated in D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976), and that upon considering these factors, the court likely would have concluded that the proposed change of domicile was not in the child's best interest. We disagree. The lower court's interpretation and application of statutes and court rules is reviewed de novo on appeal. Muci v State Farm Mut Auto Ins Co, 478 Mich 178, 187; 732 NW2d 88 (2007); Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). We review for an abuse of discretion the family court's decision to allow a parent to remove a child from the state. Mogle v Scriver, 241 Mich App 192, 202; 614 NW2d 696 (2000). "By its language, MCL 722.31 specifically applies to all cases in which a parent wishes to change the legal residence of a child 'whose custody is governed by court order . . . .'" Grew v Knox, 265 Mich App 333, 338; 694 NW2d 772 (2005). The Michigan Legislature has specifically codified the change-of-domicile factors enumerated in D'Onofrio, supra, at MCL 722.31(4). Rittershaus v Rittershaus, 273 Mich App 462, 465; 730 NW2d 262 (2007). When the parents share joint custody and one parent is seeking permission to relocate more than 100 miles away, the family court must consider the factors of MCL 722.31(4). Rittershaus, supra at 465. However, when the parent seeking the change of domicile has sole legal custody of the child, MCL 722.31 does not apply, and the court need not consider the factors enumerated in subsection 4. MCL 722.31(2); see also Rittershaus, supra at 465.1 In the present case, it is undisputed that plaintiff had sole legal custody of the child at the time of the proceedings below. Accordingly, MCL 722.31 did not govern plaintiff 's request to change the child's domicile, and the family court properly declined to consider the factors of MCL 722.31(4). However, defendant argues that the court was nonetheless required by the common law and by MCR 3.211(C) to make findings of fact on each of the D'Onofrio factors before approving the change of domicile. We address these arguments in turn. Defendant asserts that notwithstanding the inapplicability of MCL 722.31 to this case, Michigan courts have a common-law obligation to consider the D'Onofrio factors before authorizing a change of domicile for a minor child. Defendant cites several cases for this proposition.2

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Only when the parents share joint physical custody and the proposed change of domicile would also constitute a change in the child's established custodial environment is it also necessary to evaluate whether the change of domicile would be in the child's best interest. Brown v Loveman, 260 Mich App 576, 598 n 7; 680 NW2d 432 (2004). This concern is not present in the case at bar because plaintiff had sole legal and physical custody.
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See, e.g., Mogle, supra at 202-203; Overall v Overall, 203 Mich App 450, 458; 512 NW2d 851 (1994).

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This argument is simply without merit. It is true that in the cases cited by defendant, the D'Onofrio factors were used to determine whether the relocating parent should be allowed to change the child's domicile. However, all these cases were adopted before the enactment of MCL 722.31 by way of 2000 PA 422. And as noted above, when the Legislature codified Michigan's usage of the D'Onofrio factors, it concurrently chose to expressly exempt custody cases in which the relocating parent has sole legal custody. MCL 722.31(2). It is well settled that the Michigan Legislature has the power to change or modify the common law. Const 1963, art 3,

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