Brecht v. Hendry
297 Mich. App. 732
| Mich. Ct. App. | 2012Background
- Brecht has sole legal custody of her daughter, with Hendry having parenting time under a Michigan custody order.
- Brecht moved with the child to North Dakota and sought court permission to change the child’s domicile.
- The trial court denied Brecht’s motion to change domicile and Brecht appealed with leave granted.
- Legal framework discussed includes MCR 3.211(C)(1), MCL 722.31, and the historical D’Onofrio factors governing domicile changes.
- Post-2000, MCL 722.31 introduced a 100-mile rule and enumerated factors; Spires and Brausch narrowed application when sole custody exists.
- The court ultimately held that MCL 722.31 did not apply to Brecht’s sole-custody situation and remanded, vacating the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCL 722.31 applies when there is sole custody | Brecht argues 722.31 does not apply to sole custody and D’Onofrio factors are inapplicable. | Hendry/defense contends 722.31 applies and factors govern decision. | 722.31 does not apply; D’Onofrio factors not required. |
| Whether the trial court erred by considering D’Onofrio factors when 722.31 does not apply | If 722.31 doesn’t apply, trial court cannot use D’Onofrio factors. | Court may still exercise discretion in grant/deny, independent of D’Onofrio when 722.31 non-applicable. | Court erred in considering D’Onofrio factors. |
| Whether the trial court should have granted Brecht’s motion after determining 722.31 did not apply | Once 722.31 is inapplicable, motion should be granted as a matter of course. | Discretion still governs, but findings must align with applicable framework. | Motion should be granted; remand for proceedings consistent with this opinion. |
Key Cases Cited
- Spires v Bergman, 276 Mich App 432 (2007) (codified factors altered common-law duties; 722.31 not to require D’Onofrio when sole custody)
- Brausch v Brausch, 283 Mich App 339 (2009) (once 722.31 not applicable, trial court cannot rely on D’Onofrio; discretion remains)
- Overall v Overall, 203 Mich App 450 (1994) (D’Onofrio factors required under pre-722.31 regime)
- Scott v Scott, 124 Mich App 448 (1983) (applies D’Onofrio-type analysis to custody move decisions)
- Henry v Henry, 119 Mich App 319 (1982) (D’Onofrio factors applied to determine permissible moves)