Gary R Hund v. Natalie T Hund
334313
| Mich. Ct. App. | Jul 6, 2017Background
- Parents divorced; custody order prohibited moving child out of Michigan without court permission. Defendant (mother) sought to relocate with the child to Sarnia, Ontario (radial distance ≈ 90 miles from prior Michigan residence).
- Defendant remarried a Canadian man (Tiernay) and would live with him in Sarnia; he had higher income and a larger home; defendant asserted the move would improve the child’s quality of life and provide extended-family proximity.
- A referee and trial court considered the statutory change-of-domicile factors (MCL 722.31(4)) and later plaintiff (father) moved to modify custody; the trial court granted plaintiff sole physical custody and denied defendant’s relocation.
- Judge Gadola dissented: he concluded the trial court’s factual findings regarding the relocation’s capacity to improve the child’s life were against the great weight of the evidence and that the court abused its discretion in changing custody.
- Dispute central issues: (1) whether MCL 722.31 applies when a proposed move crosses state/national lines but is less than 100 miles radial distance, (2) whether defendant met the burden under MCL 722.31(4), (3) whether plaintiff showed proper cause/change of circumstances to reopen custody, and (4) whether clear and convincing evidence supported awarding plaintiff sole physical custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of MCL 722.31 (distance vs. crossing border) | MCL 722.31 applies because relocation would cross state/country lines and prior order forbids leaving state without permission. | MCL 722.31 applies only when proposed move is >100 miles (radial); Sarnia is ≈90 radial miles so statute should not control. | Gadola: plain language limits MCL 722.31 to moves >100 miles radial; but bound by precedent (Gagnon/Mogle) so he nonetheless applies the statutory factors. He would have held the statute inapplicable. |
| Whether defendant met MCL 722.31(4) (change of domicile) — factor (a) capacity to improve child's life | Move would not materially improve child’s life; increased income is speculative; step-family is recent. | Increased household income, larger home, access to parks/activities, extended family, and ability for defendant to be a stay-at-home parent support capacity to improve child's life. | Gadola: Defendant met her burden by preponderance on factor (a); other factors were neutral. Trial court’s finding against (a) was against great weight of evidence. |
| Whether plaintiff established proper cause/change of circumstances to reopen custody (Vodvarka standard) | Father argued mother’s moves, remarriage to Canadian, child’s school age, and parenting-time problems constituted change of circumstances/proper cause. | Those are normal post-divorce life changes (intrastate moves, remarriage, child aging) that do not meet Vodvarka’s restrictive standard; Dehring controls for moves <100 miles. | Gadola: Plaintiff failed to show proper cause or change of circumstances under Vodvarka; trial court erred in reopening custody. |
| Whether award of sole physical custody to plaintiff was supported by clear and convincing evidence (best-interest factors) | Trial court found several MCL 722.23 factors favored plaintiff (b, c, d, e, h, maybe l). | Many best-interest factors were neutral or favored defendant (b, c, d, e, h, l); evidence did not meet clear-and-convincing threshold to disrupt custodial environment. | Gadola: Trial court abused discretion; plaintiff did not prove by clear and convincing evidence that custody change was warranted. |
Key Cases Cited
- Bowers v. VanderMeulen-Bowers, 278 Mich App 287 (radial miles govern distance measurement under domicile statute)
- Mogle v. Scriver, 241 Mich App 192 (pre-MCL 722.31 use of D'Onofrio factors for interstate moves)
- Gagnon v. Glowacki, 295 Mich App 557 (applies MCL 722.31 factors to moves leaving the state per precedent)
- Spires v. Bergman, 276 Mich App 432 (Legislature codified change-of-domicile framework; D'Onofrio now controlled by statute)
- Brown v. Loveman, 260 Mich App 576 (if relocation changes established custodial environment, moving party must prove by clear and convincing evidence)
- Vodvarka v. Grasmeyer, 259 Mich App 499 (standard for showing proper cause or change of circumstances to reopen custody)
- Pierron v. Pierron, 486 Mich 81 (burden of proof distinctions when custodial environment would or would not change)