Gary R Hund v. Natalie T Hund
334313
| Mich. Ct. App. | Jul 6, 2017Background
- Parties divorced by consent judgment: joint legal custody; mother (Hund) awarded primary physical custody; father (Hund) parenting time.
- Mother met and married a man in Sarnia, Ontario, and sought to change the child’s legal residence to Sarnia (outside 100-mile restriction) in Jan 2016; father opposed and sought primary physical custody.
- Referee held a two-day hearing, recommended denying the domicile change under MCL 722.31(4) and granting father primary physical custody under MCL 722.23; referee also proposed a revised parenting-time schedule.
- Trial court adopted the referee’s recommendations: denied mother’s move-to-Canada request and awarded father primary physical custody; mother’s parenting time significantly reduced during school year but preserved evenings/weekends.
- Court reasoned mother failed to show by a preponderance that the move would improve her and the child’s quality of life (factor (a)), and the court found by clear and convincing evidence that custody modification was in the child’s best interests (factors (b), (c), (d), (e), (h)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mother may change child’s legal residence to Sarnia (MCL 722.31) | Mother: move would improve family life and child’s opportunities | Father: move would not improve child’s quality of life; would frustrate parenting time | Denied — mother failed by preponderance to satisfy MCL 722.31(4); (a) and (c) weighed against move, others neutral. |
| Whether trial court may consider mother’s temporary living situation when evaluating "capacity to improve" (MCL 722.31(4)(a)) | Mother: court should compare proposed move to her actual (temporary) Marine City situation | Father: court may compare proposed move to a non-self-created baseline and consider voluntariness | Held: Court may in its discretion view voluntary, self-created reductions in quality of life when assessing capacity to improve; no legal error. |
| Whether father proved change of primary physical custody is in child's best interests (MCL 722.23) | Father: demonstrated best-interest factors favor him; child’s stability, school enrollment, health issues support change | Mother: trial court misweighed factors and should have considered other evidence under factor (l) | Held: Granted — court found established custodial environment; father met clear-and-convincing burden; factors (b),(c),(d),(e),(h) favored father; decision not against great weight of evidence. |
| Whether awarded parenting-time schedule was inadequate | Father: schedule preserves stability and best interests | Mother: reduction from 9/14 overnights to 2/14 overnights harmful | Held: Parenting-time schedule affirmed; mother retained substantial evening/weekend contact and record did not show schedule undermines parent–child relationship. |
Key Cases Cited
- Eickelberg v. Eickelberg, 309 Mich. App. 694 (review of statutory interpretation is de novo)
- Pierron v. Pierron, 486 Mich. 81 (established custodial environment and burden distinctions)
- Gagnon v. Glowacki, 295 Mich. App. 557 (relocation analysis recognizing increased earning potential can favor move)
- McIntosh v. McIntosh, 282 Mich. App. 471 (factual findings reviewed for great weight of the evidence)
- Rains v. Rains, 301 Mich. App. 313 (appellate review standard; not to substitute judgment on facts)
- Sinicropi v. Mazurek, 273 Mich. App. 149 (trial court may weigh best-interest factors unequally)
- Vodvarka v. Grasmeyer, 259 Mich. App. 499 (evaluating a "change" requires comparing two circumstances)
- Carlson v. Carlson, 293 Mich. App. 203 (imputing income where parent voluntarily reduces earnings)