Lead
These cases present two related issues
In both Grange and ACIA, the respective judgment of divorce and custody order conclusively established the minor children’s domiciles. Accordingly, we reverse the judgment of the Court of Appeals in Grange, which erroneously held that a minor of divorced parents can have two domiciles, and we remand to the circuit court for entry of summary disposition in favor of Grange Insurance Company. In ACIA, we reverse the judgment of the Court of Appeals, which erred by concluding that a question of fact existed regarding the child’s domicile, and we remand to the circuit court for entry of summary disposition in favor of ACIA.
I. FACTS AND PROCEDURAL HISTORY
A. GRANGE v LAWRENCE
Edward Lawrence and Laura Rosinski were married in 1997 and had two daughters, Katelyn and Josalyn, the latter of whom is the deceased insured in this case. Lawrence and Rosinski divorced in 2005; Rosinski remained in the marital home and Lawrence moved into his parents’ home, both located in Muskegon, Michigan. The judgment of divorce granted Lawrence and Rosinski joint legal custody of Josalyn and Katelyn, but Rosinski was given “primary physical custody” of the girls. The judgment of divorce provided Lawrence with frequent parenting time, including alternating weekends, Wednesday evenings, alternating holidays, liberal phone contact, and liberal parenting time when Rosinski was unavailable. The judgment of divorce further provided:
A parent whose custody or parenting time of a child is governed by this order, shall not change the legal residence of the child except in compliance with [MCL 722.31], which prohibits moving a child out of the State of Michigan or greater than 100 miles from the non-custodial parent without a court order. The party awarded custody must notify the Friend of the Court, in writing, immediately, when the minor child is moved to another address.
On September 24, 2009, eight-year-old Josalyn was a passenger in a car owned and driven by Rosinski when another driver ignored a stop sign and hit Rosinski’s vehicle, resulting in fatal injuries to Josalyn. Rosinski and Lawrence were appointed as joint personal representatives of Josalyn’s estate.
Subsequently, Farm Bureau asserted that Grange was in the same order of priority for the payment of PIP benefits because, in its view, Josalyn was “domiciled” in both parents’ homes pursuant to MCL 500.3114(1); Farm Bureau thus sought from Grange partial reimbursement of benefits pursuant to MCL 500.3115(2). Grange denied the claim and filed a complaint for declaratory relief, seeking a declaration that Josalyn was domiciled with Rosinski, not Lawrence, at the time of the accident. Grange asserted that it was not required to reimburse Farm Bureau for any of the PIP benefits that Farm Bureau had paid because Josalyn was not “domiciled” with Lawrence at the time of the accident as required by MCL 500.3114(1), and Michigan law does not recognize dual domiciles. Grange further asserted that it was not obligated to pay PIP benefits for Josalyn’s injuries because Josalyn was not a named insured under its policy.
Farm Bureau filed a counterclaim seeking a declaratory judgment that Josalyn was domiciled with each of her parents at the time of the accident and that Farm Bureau was entitled to partial reimbursement of the PIP benefits it had paid. Farm Bureau also argued that the Grange policy conflicted with the no-fault act by excluding Josalyn as an insured through its automatic attribution of domicile to the residence of the custodial parent.
Both insurance companies filed motions for summary disposition pursuant to MCR 2.116(0(10) and the circuit court granted summary disposition to Farm Bureau. Applying the factors that are traditionally used to determine domicile under the no-fault act as set forth in Workman v Detroit Automobile Inter-Insurance Exchange
Grange appealed to the Court of Appeals, which affirmed the circuit court’s decision.
Grange sought leave to appeal, which this Court granted.
B. ACIA V STATE FARM
In this case, Sarah is the minor child fatally injured in a motor vehicle accident. Sarah’s parents, Francis Campanelli and Tina Taylor, were divorced in Michigan in 1995. The original judgment of divorce granted joint legal custody of Sarah and her sister, Ashley, to both parents and “physical custody” to Campanelli, allowing Taylor only reasonable visitation. Additionally, the judgment of divorce contained the following provision:
DOMICILE OF THE MINOR CHILDREN
The domicile or residence of said minor children shall not be removed from the State of Michigan without the prior approval of the Court, and that [Campanelli] shall promptly notify the Friend of the Court whenever said children Eire moved to Emother address.
A little more than a year after the family court granted the judgment of divorce, Campanelli secured a job in Tennessee that offered a considerable improvement in his career. He moved the family court to modify the original judgment of divorce and successfully obtained an order in February 1996, as the custodial parent, permitting him to change the children’s domicile to the state of Tennessee.
In 2007, when Sarah was 16-years-old, she went to Michigan to stay for the summer with her mother, who lived with Sarah’s great-uncle, Terry Gravelle, in Howell, Michigan. During the time that she lived with her mother, Sarah decided that she wanted to get to know Taylor better and, with Campanelli’s permission, remained in Michigan with her mother and attended high school that fall.
On November 26, 2007, Sarah was a passenger in a car driven by her friend, Kayla, and insured by State Farm Mutual Automobile Insurance Company (State Farm). Kayla lost control of the car, which careened off the road and into a tree, resulting in what would ultimately be fatal injuries to Sarah. The severe injuries Sarah sustained required medical care. Automobile Club Insurance Association (ACIA), as the insurer of Sarah’s uncle, Gravelle, in whose household Sarah resided, paid Sarah’s medical bills during the period before her death.
ACIA commenced an action in the circuit court to secure determinations that (1) Sarah was not “domiciled” in Michigan, (2) ACIA, therefore, was not responsible for Sarah’s PIP benefits under MCL 500.3114(1), and (3) State Farm, as the insurer of the vehicle in which Sarah was a passenger when she was injured, was the responsible insurer pursuant to the no-fault priority provision of MCL 500.3114(4). State Farm denied liability and both providers filed cross-motions for summary disposition under MCR 2.116(C)(10).
The circuit court granted summary disposition in favor of State Farm, finding that Sarah “had residency in Michigan with her mother and her uncle at the time of the motor vehicle accident.”
The Court of Appeals reversed, reasoning that the evidence of Sarah’s domicile, and in particular her intent, presented a question of fact for resolution by the jury and that summary disposition was, thus, not proper for either party.
State Farm applied to this Court for leave to appeal and ACIA filed a response to that application, as well as a cross-application. We ordered argument on whether to grant the applications or take other action.
II. STANDARD of review
This Court reviews de novo a decision to grant or deny a motion for summary disposition.
III. ANALYSIS
Michigan’s no-fault act generally abolishes tort liability arising from the ownership, maintenance, or use of a motor vehicle.
[A] personal protection insurance policy described in [MCL 500.3101(1)] applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household, if the injury arises from a motor vehicle accident.[24 ]
In these cases, the parties dispute whether the injured individual was a relative of the insured who was “domiciled in the same household” as the insured.
In the instance that more than one insurer’s policy is applicable to the injured person under this provision, then the priority provision of MCL 500.3115(2) is triggered and may allow an insurer to recoup benefits from other insurer(s) of equal priority.
Comparatively, in some instances no insurer’s PIP policy is applicable to the injured person under MCL 500.3114(1) because the person is not “the person named in the policy, the person’s spouse, [or] a relative of either domiciled in the same household ....” In this event, MCL 500.3114(4) may apply such that the insurer of the accident vehicle is liable for PIP benefits to the occupant of a motor vehicle. MCL 500.3114(4) provides:
Except as provided in [MCL 500.3114(1)-MCL 500.3114(3)], a person suffering accidental bodily injury arising from a motor vehicle accident while an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) The insurer of the owner or registrant of the vehicle occupied.
(b) The insurer of the operator of the vehicle occupied.
This is the legal posture of ACIA, where the dispute involves whether Sarah was “domiciled with a relative” in Michigan for the purposes of MCL 500.3114(1), or instead, whether MCL 500.3114(4) applies. The circuit court concluded that Sarah was domiciled in Michigan, thus making ACIA, the insurer of Sarah’s uncle with whom she resided in Michigan, liable for PIP benefits rather than State Farm, the insurer of the accident vehicle.
The pivotal inquiry in both these insurance-coverage disputes, then, turns on the interpretation of the term “domiciled” as it is used in MCL 500.3114(1). Mainly, the meaning of “domicile,” and specifically how a child’s domicile is determined, will dictate the ultimate determination of which insurer is liable for PIP benefits in each case. Our inquiry first addresses the preliminary
A. DOMICILE AND THE NO-FAULT ACT
Notably, the no-fault act does not define the term “domiciled.” The unambiguous language of MCL 500.3114(1) simply states that “a personal protection insurance policy . . . applies to accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household . . . .”
For over 165 years, Michigan courts have defined “domicile” to mean “the place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning.”
a man retains his domicile of origin [upon his birth] until he changes it, by acquiring another; and so each successive domicile continues, until changed by acquiring another. And it is equally obvious that the acquisition of a new domicile does, at the same instant, terminate the preceding one.[33 ]
In this way, our common law has recognized that from the time of a person’s
In furtherance of this understanding of domicile, the common law has necessarily distinguished between the concepts of “domicile” and “residence:”
The former, in its ordinary acceptation, was defined to be, ‘A place where a person lives or has his home,’ while ‘[a]ny place of abode or dwelling place,’ however temporary it might have been, was said to constitute a residence. A person’s domicile was his legal residence or home in contemplation of law.[34 ]
Stated more succinctly, a person may have only one domicile, but more than one residence.
Returning to the language of MCL 500.3114(1), there is no indication that the Legislature intended to deviate from this well established common-law meaning of the term “domicile.” And, because a person, from the moment of his birth onward, can only have one domicile within the traditional meaning of that term, it follows that a child, regardless of his parents’ marital status or his multiple legal residences, may also have only one domicile at any given point in time.
Indeed, rather than there being any indication that the Legislature intended to deviate from this common-law rule, there is, in fact, evidence that the Legislature favored this single-location rule. Had the Legislature intended to make insurers liable for PIP benefits for dual coexisting “domiciles,” then it would have used the term “resided,” not “domiciled,” because, as previously explained, a person may have more than one residence at a time, but only one domicile. However, the Legislature instead expressly chose to use the more restrictive term, “domiciled,” thereby limiting the universe of insurers that are potentially liable under MCL 500.3114(1). In fact, the Legislature specifically rejected use of the term “residence,” as used in the uniform act on which the no-fault act is modeled, in favor of the term “domiciled” in defining those eligible for PIP benefits under MCL 500.3114(1).
Therefore, given the absence of any indication that the Legislature intended a contrary meaning, the Legislature’s use of the term “domiciled,” evinces an intent to incorporate all those common-law legal concepts related to that term, including the law of domicile as it relates to minors more fully addressed below. Accordingly, consistent with the traditional common-law principle that a person may have only one domicile at a given point in time, we hold that a child, whose parents are divorced and who has more than one legal residence, may have only a single domicile at any one point in time that continues until the child acquires a different one.
Farm Bureau, however, suggests that we should reach the opposite conclusion — that a child of divorced parents who has two legal residences may also have two coexisting domiciles, one with each parent. In support, Farm Bureau, like the Court of Appeals in Grange, asserts that our decision in Workman specifically recognized “residence” and “domicile” to be legally synonymous for purposes of MCL 500.3114(1), meaning that, just as a person can have more than one residence, a person can also have more than one “domicile.” In Workman, the seminal case in which we interpreted the phrase “domiciled in the same household” as used in MCL 500.3114(1), we considered whether the claimant, the insured’s adult daughter-in-law, was domiciled in the same household as the insured. After noting that no caselaw interpreted the phrase, “domiciled in the same household,” we articulated a flexible multi-factor test to aid courts in determining domicile, in which no one factor is determinative.
(1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his “domicile” or “household; (2) the formality or informality of the relationship between the person and the members of the household; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises, (4) the existence of another place of lodging by the person alleging “residence” or “domicile” in the household ... .[41 ]
Although the statutory language of [MCL 500.3114(1)] refers to persons “domiciled in the same household” as an insured, we believe this body of law [that deals with the question of whether a person is a ‘resident’ of an insured’s ‘household’ under particular insurance policies,] is analytically applicable to the consideration before us. We conclude this because, in this state, the terms “domicile” and “residence” are legally synonymous (except in special circumstances)[42 ]
It is this final phrase — “the terms ‘domicile’ and ‘residence’ are legally synonymous” — on which Farm Bureau and the Court of Appeals rely. This statement, however, when read in context of the entire opinion, does not stand for the proposition that domicile is the equivalent of residence under MCL 500.3114(1). Rather, Workman merely acknowledged that, generally, “residence” has sometimes been given the equivalent meaning of “domicile.” Workman did not, however, establish that interpretation as an absolute rule. Indeed, this point is bolstered by the cases Workman cites in support of its statement that “the terms ‘domicile’ and ‘residence’ are legally synonymous.” Workman first cited to Gluc v Klein,
However, the corollary — that domicile has sometimes been given the same meaning as residence — is simply not true. This Court has never interpreted “domicile” to be the equivalent of “residence,” as demonstrated by the cases Workman cites and the preceding discussion regarding the common-law meaning of domicile. Indeed, Workman itself cannot reasonably be interpreted
Our holding thus clarifies, that to the extent that Workman has been understood to imply that “domicile” and “residence” retain no independent significance for the purposes of the no-fault act, such a conclusion is not valid and that “domicile” must be understood consistent with its historical underpinnings. Further, although Workman recognized that “domicile” and “residence” are often used interchangeably by the Legislature in other contexts and, therefore described the terms as synonymous in those situations, Workman also explained that it is often necessary to distinguish between the terms consistent with the Legislature’s intent, as in the instant case.
The Court of Appeals in Grange therefore erred by interpreting Workman to mean that domicile is the equivalent of residence and that a minor child can be “domiciled” for purposes of MCL 500.3114(1) in multiple residences.
B. DETERMINING A CHILD’S DOMICILE
Our holding, that a child may have only one domicile at any one time consistent with traditional common-law principles, does not establish how a child’s single domicile is determined. Workman and its progeny applying the traditional domicile test defined domicile in relation to an adult but, for reasons that we will explain, these factors are not helpful in determining a child’s domicile. To resolve how a child’s domicile is determined — and given our conclusion that the Legislature intended that the term “domiciled,” as used in MCL 500.3114(1), be interpreted consistent with
i. THE COMMON LAW OF DOMICILE PERTAINING TO MINORS
Our common law recognizes three means of acquiring a domicile, which are generally applicable to all persons depending on the factual circumstances, including: (1) domicile of origin or of nativity; (2) domicile of choice; and (3) domicile by operation of law.
Typically, as indicated in the preceding discussion and demonstrated by the Workman factors, an adult acquires a new domicile by choosing one of his or her choice, which makes the question of intent a preeminent concern in determining an adult’s domicile. One of the requisites for acquiring a domicile of choice, then, is the legal capacity necessary to form the intent required to select a new domicile.
Regarding children, a child’s ability to acquire a new domicile is limited in ways that an adult’s ability to acquire a domicile is not. This is because, for purposes of our legal system, an unemancipated child, unlike a competent adult, lacks the legal capacity to make legally binding determinations for him or herself and, therefore, a child lacks the capacity to acquire a domicile of choice.
The inquiry into a child’s domicile becomes more complicated when the child’s parents are divorced. Our common law, however, has accounted for these types of familial situations. Specifically, nearly a century ago in In re Volk,
[U]nder the decree of divorce, the mother was given [the child’s] unrestricted custody. His domicile thereafter became that of his mother, and, when she removed to this State and became domiciled here, the domicile of the child was in Michigan.[58 ]
By acknowledging that the child’s domicile changed by operation of law as a result of the decree of divorce, this Court expressly recognized that a child’s domicile, upon the divorce or separation of the child’s parents, is the same as that of the parent to whose custody he has been legally given pursuant to a custody order.
We reaffirm these common-law principles and, in doing so, we emphasize that domicile is a singular concept. Just as a person does not have two domiciles, a person likewise does not have a domicile set by operation of law for some purposes and perhaps a different domicile for other purposes — such as for consideration under the no-fault act or any other statute that uses the term “domicile.” A person’s domicile for one purpose is his domicile for all purposes; similarly, a child does not have a domicile set by court order only for certain purposes, but not others.
Our analysis could end with articulation of this common-law rule and affirmation of these principles. We would be remiss, however, not to acknowledge that child custody orders are created pursuant to the provisions of the Child Custody Act,
ii. THE CHILD CUSTODY ACT AND DOMICILE
The Child Custody Act governs the creation of child custody orders and provides a comprehensive statutory scheme for resolving custody disputes.
At the outset, we note that the Child Custody Act is consistent with the notion that a child may have only a single domicile at any given point in time. Nowhere
However, no provision of the Child Custody Act expressly provides that an order establishing custody or domicile is conclusive evidence of a child’s domicile for purposes of the no-fault act or otherwise. Moreover, the Act allows for myriad possible scenarios in postdivorce familial relationships, recognizing different combinations of legal and physical custody, and offering flexibility in terms of parenting time arrangements.
Once a custody order is entered pursuant to a judgment of divorce or otherwise, that custody order is legally binding on the parents and the order cannot be modified absent court approval or compliance with the applicable provisions of the Child Custody Act.
We thus believe that our prior conclusion — that in the instance where a child’s parents are divorced, the family court’s custody order entered pursuant to the Child Custody Act establishes the child’s domicile by operation of law and is determinative of the child’s domicile for purposes of the no-fault act — is consistent with the Child Custody Act itself.
Therefore, courts presiding over an insurance coverage dispute involving the minor child of divorced parents must treat a custody order as conclusive evidence of a child’s domicile.
i. GRANGE V LAWRENCE
When the family court entered the 2005 judgment of divorce between Lawrence and Rosinski, their child Josalyn acquired a domicile by operation of law consistent with the terms of the judgment of divorce. Specifically, the order granted Lawrence and Rosinski joint legal custody, while Rosinski was granted primary physical custody and Lawrence liberal parenting time. Because the order granted Rosinski primary physical custody, Josalyn’s domicile was with Rosinski. So long as Josalyn lacked the legal capacity to acquire a new domicile of choice and neither of her parents successfully moved to modify the order through a motion to change custody or residence under MCL 722.27 or MCL 722.31 in a family court of continuing jurisdiction, Josalyn’s domicile would remain with Rosinski pursuant to the terms of the judgment of divorce.
At the time of the accident in 2009 the judgment of divorce had never been modified pursuant to the provisions of the Child Custody Act. Nor had Josalyn reached the age of majority or become emancipated, such that she could acquire a different domicile of her own choosing. Therefore, at the time of the accident, Josa-lyn’s domicile was with Rosinski pursuant to the terms of the judgment of divorce. In reaching the contrary conclusion that Josalyn was domiciled with both parents, the lower courts erred by concluding that a person could have dual domiciles, erred by failing to recognize the legal effect of the family court’s custody order, and erred by applying the Workman factors that are inapplicable to a person whose domicile is set by operation of law.
Therefore, because Josalyn can only have one domicile, it follows that she was not domiciled with Lawrence, Grange’s insured. The terms of the judgment of divorce provide conclusive evidence of Josalyn’s domicile and, there being no ambiguity in that order, there is no question of fact that Josalyn was domiciled in Rosinski’s household. It further follows that because Josalyn was not domiciled with Lawrence, Grange is not liable for Josa-lyn’s PIP benefits under MCL 500.3114(1). For this same reason, Grange is not an insurer of equal priority
ii. ACIA V STATE FARM
In ACIA, the 1995 judgment of divorce granted Taylor and Campanelli joint legal custody, Campanelli primary physical custody, and, in an express domicile provision, established Sarah’s domicile in Michigan with Campanelli. Upon entry of this order, Sarah’s domicile was established by operation of law and her parents no longer had the legal capacity to establish a different domicile of choice on Sarah’s behalf, and nor could Sarah, not having reached the age of majority and not being emancipated, acquire a new domicile of her own choosing. Campanelli, however, successfully moved for a change of residency in 1996 and the family court entered an order modifying the judgment of divorce by changing Sarah’s domicile to Tennessee. Taylor and Campanelli retained joint legal custody and Campanelli retained primary physical custody. Sarah’s domicile, then, was changed by operation of law to Tennessee upon entry of the 1996 order.
There is no dispute that the 1996 order expressly establishing Sarah’s domicile in Tennessee remained in effect at the time of the accident in 2007, when Sarah was only 16 years of age. Although Sarah was then residing with her mother in Michigan, Sarah was domiciled in Tennessee at the time of the accident as established by the 1996 order. There being no question of fact as to Sarah’s domicile in Tennessee, it is clear that ACIA, the insurer of the Michigan household, is not liable for Sarah’s PIP benefits under MCL 500.3114(1). Instead, State Farm is the insurer in first priority to pay PIP benefits, and the lower courts thus erred by denying ACIA summary disposition.
IV CONCLUSION
It has long been established in our common law that a person, including a child, may have only a single domicile at any one time. We reaffirm this principle and hold that a child of divorced parents who may have more than one legal residence, nevertheless still has only one domicile at a given point in time, including for purposes of the no-fault act. In the instance that the child’s parents are divorced and a family court has entered an order relating to custody, we hold, consistent with our common law and the Child Custody Act, that the child’s domicile is established by operation of law and that the custody order is determinative of the child’s domicile for purposes of the no-fault act.
In Grange, the judgment of divorce conclusively established the minor child’s domicile with her mother at the time of the accident and, thus, Grange is not hable for providing PIP benefits following the child’s automobile accident. Accordingly, we reverse the judgment of the Court of Appeals in Grange and we remand to the circuit court for entry of summary disposition in favor of Grange.
In ACIA, the custody order conclusively established the minor child’s domicile with
Notes
MCL 500.3101, et seq.
At the time of the accident, the 2005 judgment of divorce was still in effect. However, Lawrence had moved into a two-bedroom apartment, while Rosinski continued to reside in the former marital home.
The pertinent portion of Grange’s policy provided PIP “benefits to or for an insured who sustains bodily injury... caused by an accident.” The Grange policy defined “insured” to include ‘You or any family member injured in an auto accident.” The Grange policy further defined “family member” as:
[A] person related to you by blood, marriage or adoption and whose principal residence is at the location shown on the Declarations page. If a court has adjudicated that one parent is the custodial parent, that adjudication shall be conclusive with respect to the minor child’s principal residence. [Emphasis added.]
Workman v Detroit Auto Inter-Ins Exch,
Dairyland Ins Co v Auto-Owners Ins Co,
Grange Ins Co of Mich v Lawrence,
Id. at 323, 324.
Id. at 324.
Id. at 325.
Grange Ins Co v Lawrence,
(1) whether a person, and in particular the minor child of divorced parents, can have two domiciles for the purpose of determining coverage under MCL 500.3114(1) of the Michigan no-fault act; (2) whether, in answering the first issue, a court order determining the minor’s custody has any effect; and (3) whether an insurance policy provision giving preclusive effect to a court-ordered custody arrangement is enforceable. [Id.]
The family court’s order was entitled “Order Permitting Defendant to Change Children’s Domicile to the State of Tennessee.”
Taylor provided Sarah with a room of her own in her uncle’s home, filed an affidavit of residence with the Howell Public Schools, affirming that Taylor lived in Howell and that Sarah resided with her. Taylor listed Gravelle’s address as their residence.
In the meantime, Taylor, after learning that Campanelli was planning to have Sarah flown back to Tennessee for medical care, obtained an ex parte order from the Wayne Circuit Court purporting to transfer Sarah’s custody to Taylor and her domicile to Taylor’s Michigan address. The Wayne Circuit Court later reversed itself on January 7, 2008, vacating the ex parte order and declaring it void ah initio. By that time, however, Sarah had passed away from her injuries. Sarah’s parents, however, continued to litigate. Taylor sought to open an estate for Sarah in Livingston County Probate Court, contending that Sarah was domiciled in Michigan when she died. After a two-day testimonial hearing, the probate court ruled that, consistent with the provisions of the family court’s orders in the divorce proceedings, Sarah was domiciled in Tennessee, not in Michigan, on the date of her death. The probate court entered orders pursuant to its ruling, declaring Sarah to be a “nonresident of Michigan” and giving Campanelli the right to make decisions regarding funeral arrangements for Sarah.
The circuit court concluded that it was not bound by the probate court’s determination that Sarah was domiciled in Tennessee, see note 13, because the parties to the probate court proceedings were different.
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co, unpublished opinion per curiam of the Court of Appeals, issued June 21, 2011 (Docket No. 294324).
Id. at 4-5.
Auto Club Ins Ass’n v State Farm Mut Auto Ins Co,
Elba Twp v Gratiot Co Drain Com’r,
Quinto v Cross & Peters Co,
Hartzler v Radeka,
Elba Twp,
See MCL 500.3105.
MCL 500.3107; MCL 500.3108.
MCL 500.3114(1) (emphasis added).
MCL 500.3115(2) provides:
When 2 or more insurers are in the same order of priority to provide personal protection insurance benefits an insurer paying benefits due is entitled to partial recoupment from the other insurers in the same order of priority, together with a reasonable amount of partial recoupment of the expense of processing the claim, in order to accomplish equitable distribution of the loss among such insurers.
Emphasis added.
Title Office, Inc v Van Buren Co Treasurer,
Herman v Berrien Co,
MCL 8.3a.
In re High, 2 Doug 515, 523 (Mich, 1847).
Henry v Henry,
In re High, 2 Doug at 523 (emphasis added); see also In re Scheyer’s Estate,
In re High, 2 Doug at 523.
Gluc v Klein,
In re Scheyer’s Estate,
Beecher v Common Council of Detroit,
In re High, 2 Doug 523-524 (“The question of domicile, is then, a question of fact and intent, and if these elements are found, the reference of the domicile to one place or another depends upon the comparative weight of the circumstances.”).
For reasons we explain later in this opinion, the Child Custody Act, MCL 722.21 et seq., which governs the creation of child custody orders, does not abrogate the common-law rule that a person can have only a single domicile and does not create a dual-domicile situation.
This Court has acknowledged that the no-fault act is modeled after the Uniform Motor Vehicle Reparations Act, see MacDonald v State Farm Mut Ins Co,
Workman,
Id. at 496-497 (citations omitted). Later, in Dairyland Ins Co v Auto-Owners Ins Co,
Other relevant indicia of domicile include such factors as [1] whether the claimant continues to use his parents’ home as his mailing address, [2] whether he maintains some possessions with his parents, [3] whether he uses his parents’ address on his driver’s license or other documents, [4] whether a room is maintained for the claimant at the parents’ home, and [5] whether the claimant is dependent upon the parents for support.
The Workman-Dairyland multifactored framework comprises the one now commonly employed by Michigan courts when a question of fact exists as to where a person is domiciled.
Workman,
Gluc v Klein,226 Mich 175 , 178;197 NW 691 (1924); Hartzler v Radeka,265 Mich 451 , 452;251 NW 554 (1933); Reaume & Silloway, Inc v Tetzlaff,315 Mich 95 ;23 NW2d 219 (1946). For an example of such a “special circumstance”, see School District No 1, Fractional, of Mancelona Twp v School District No 1 of Custer Twp,236 Mich 677 , 681;211 NW 60 (1926); Ortman v Miller,33 Mich App 451 , 458;190 NW2d 242 (1971).
Gluc,
Hartzler,
Reaume & Silloway, Inc,
See Sch Dist No 1 Fractional of Mancelona Twp,
Similarly, see Feaster v Portage Pub Sch,
For this same reason, Farm Bureau’s suggestion that this Court follow the holding of a Sixth Circuit Court of Appeals case, Walbro Corp v Amerisure Cos,
8 Mich Civ Jur, Domicile, § 1.
See In re High, 2 Doug at 523-524.
Restatement, Conflict of Laws, 2d, §§ 22, 23; 8 Mich Civ Jur, Domicile, § 5.
Comments a and b of the Restatement, § 15 provide:
a. Requirements for acquisition of domicil of choice. The requirements for acquiring a domicil of choice are (1) legal capacity to do so, (2) physical presence as described in § 16 and (3) the existence of the attitude of mind described in § 18 toward the place in question....
b. A person may acquire a domicil of choice if
(1) having had a domicil by operation of law, such as a domicil of origin, he acquires a domicil of choice in a place other than his former domicil; or
(2) having had a domicil of choice in one place, he acquires a new domicil of choice in another place. [Emphasis added.]
See id. It is basic black letter law that an unemancipated minor lacks the legal capacity to acquire a domicile of choice. See Yarborough v Yarborough,
See Holy field,
See In re High, 2 Doug at 523-524 (recognizing that a child acquires a domicile of origin upon birth that is the same as his parents); Hering v Mosher,
See In re High, 2 Doug at 524 (explaining that a child who “was bom in Vermont, about the year 1812, where he continued to reside with his parents, who were domiciled there, until he went south some time prior to 1832, and before he had attained the age of twenty-one[,]” was domiciled in Vermont, as “Vermont, then, was the domicile of his birth or nativity ... and it continued to be his domicile until he acquired another, which he could not do until he arrived at foil age....” [emphasis added]). Indeed, in the instance where a child’s parents remain married, when the parents acquire a new domicile of choice, the child also acquires that same domicile consistent with the parents’ intent. Under these circumstances, because the child’s domicile is determined in relation to his parents’ domicile, the Workman factors remain relevant only to the extent that they are used to determine the parents’ intentions. See Holyfield, 490 US at 48.
In re Volk,
In re Volk at 31-32 (emphasis added).
The United States Supreme Court recognized the same principle in Yarborough,
In re Volk,
In an effort to avoid creating a two-domicile situation under its rebuttable presumption test, i.e., the concurrence would allow a child to have one domicile for purposes of the no-fault act and another different domicile in the family law context, the concurrence argues that the family court lacks the authority to determine a minor child’s domicile in its custody orders. This position, however, conflicts with the concurrence’s rebuttable presumption test, which recognizes the family court’s authority in this regard by treating the custody order as presumptive evidence of a minor child’s domicile.
Child Custody Act, MCL 722.21 et seq.
MCL 722.26.
MCL 722.24(1).
See MCL 722.31, which pertains to the requirements necessary to change a child’s residence, and provides in part that “[a] child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent.” Notably, the caselaw addressing disputes related to motions for a change of residency also interchangeably describe these motions as motions for a change of domicile. See Rains v Rains,
See Const 1963, art 3, § 7 (indicating that the common law remains in force until it is “changed, amended or repealed”); see also Dawe v Dr Reuven Bar-Levav & Assocs, PC,
For example, MCL 722.26a recognizes the possibility of “joint custody,” which may consist of either joint physical custody or joint legal custody or both joint physical and legal custody. MCL 722.26a(7) defines “joint custody” to mean
an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents.
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
“Although not specifically designated in the statute, the custody described in [MCL 722.26a(7)(a)] is commonly referred to as joint physical custody, and that described in [MCL 722.26a(7)(b)] is referred to as joint legal custody.” Dailey v Kloenhamer,
See Harvey v Harvey,
See MCL 722.27(1)(c), which indicates that a family court may “modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age .. . [and that the] court shall not. .. change the established custodial environment of a child unless there is presented clear and convincing evidence that-it is in the best interest of the child.”
See MCL 722.31, which provides in relevant part:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents.
See also MCR 3.211(C)(3), which provides:
A judgment or order awarding custody of a minor must provide that
(1) the domicile or residence of the minor may not be moved from Michigan without the approval of the judge who awarded custody or the judge’s successor,* * *
(3) a parent whose custody or parenting time of a child is governed by the order shall not change the legal residence of the child except in compliance with section 11 of the Child Custody Act, MCL 722.31.
The concurrence' acknowledges that parents are legally bound by custody orders, but then concludes that parents retain the ability to establish a minor child’s domicile in contravention of a custody order. This reasoning — and the rebuttable presumption test that stems from it — departs from established principles of Michigan’s domiciliary common law and statutory law and, instead, is based on the concern that domicile dictated by a custody order may not be aligned with the minor child’s actual living arrangements. This approach is not supportable in our law and we decline to give legal effect to the fact that a child’s living situation may not be consistent with the custody order.
We recognize that parents often reach informal agreements concerning custody matters or, having established a formal arrangement through court order, may through mutual agreement decide to deviate from that arrangement such that a child’s living situation is not aligned with the custody order. Our holding does not, in reality, restrict parents in their ability to address custody arrangements in these regards, but courts should be cognizant that parents’ informal modifications to the custody arrangement established in a custody order have no effect on a child’s domicile.
Despite this clear directive, the concurrence argues that our holding injects uncertainty into the realm of no-fault law. We believe that it is the concurrence’s rebuttable presumption test that would create uncertainty because it would require insurers to evaluate parents’ claims of domicile or leave an insurer guessing regarding its risk of exposure to liability.
A domicile set by operation of law — for example, by court order— obviates the need to engage in an analysis of the Workman-Dairyland factors, which were designed to help determine a person’s domicile when it was an open or contested question.
Compare MCL 722.26a(7)(a) (physical custody) with MCL 722.26a(7)(b) (legal custody).
See In re Volk,
We recognize that a custody order may allow for reasonable or flexible parenting time. However, the physical-custody inquiry, which governs the domicile determination, has to do with the child’s primary physical location under the express terms of the custody order and not with how the order allots “parenting time.” Indeed, by allowing for reasonable or flexible parenting time in a custody order, a family court has not relinquished its authority to establish the physical custody of the minor child.
Although not presently before this Court, we recognize that determining domicile by reference to a custody order may appear to lead to a perplexing result where the order grants each parent joint physical custody under MCL 722.26a(7) and creates an equal 50/50 division of physical custody. To begin with, we emphasize that an award of joint physical custody alone does not automatically create this potentially perplexing situation because although an order may award joint physical custody, it may also establish that one parent has primary physical custody. Alternatively, the details of the physical custody division may reveal that one parent has physical custody of the child more often than the other parent despite the joint physical custody arrangement. Thus, it is only in the very rare event that a custody order awards joint physical custody and grants both parents an equal amount of time to exercise physical custody that this issue arises. Indeed, MCL 722.26a(7) does not require that parents share equal physical custodial time for a court to award joint physical custody; rather, [MCL 722.26a(7)(a)] merely defines joint physical custody as an order “[t]hat the child shall reside alternately for specific periods with each of the parents.” Emphasis added. The statute does not, however, require that the child reside with each parent for an equal amount of time to constitute joint physical custody.
In the unusual event that a custody order does grant an equal division of physical custody, and only in this instance, then the child’s domicile would alternate between the parents so as to he the same as that of the parent with whom he is living at the time. Restatement, § 22 (1971). Thus, the child’s domicile is with the parent who has physical custody as established by the custody order at the specific time of the incident at issue. This approach is consistent with the terms of the custody order and avoids a finding that the child has dual coexisting domiciles. Such a rule is consistent with In re Volk and retains our traditional understanding that a person can only have one domicile at a time.
Given our holding that a custody determination of a minor child governs domicile, Farm Bureau’s argument that Grange’s policy conflicts with the no-fault act is unavailing. Recall that the pertinent portion of Grange’s policy states: “If a court has adjudicated that one parent is the custodial parent, that adjudication shall be conclusive with respect to the minor child’s principal residence.” This provision is plainly consistent with our holding and does not, as the Court of Appeals held, restrict coverage that otherwise would have been permitted under the no-fault act.
Concurrence Opinion
(concurring). I concur in the result reached by the majority in these cases. I also agree with the majority that a person, including a minor child, can have only one domicile at any given time. I disagree, however, with the rule the majority has adopted for determining the domicile of a child with two legal residences under the Child Custody Act
The majority assumes that physical custody orders are the same as domicile determinations as a matter of law.
I also disagree that a family court order of joint physical custody can establish an alternating domicile system, whereby the minor child’s domicile is wherever the custody order indicates the child is supposed to be. Such a system is a semantic end-run around our traditional rule that a person may only have one domicile and ignores the practical reality that in virtually all cases, a child will have a primary residence that will constitute the child’s domicile.
I conclude that the majority’s rule unduly impinges on the ability of an insurer to accurately assess its risks when entering insurance agreements and places an unreasonable burden on insurers to inquire about, obtain, and interpret family court orders. This is because the majority rule places no-fault personal protection insurance (PIP) liability on the insurer of the parent who has been ordered physical custody, even when the child is not primarily living with that parent. The majority’s rule, in my view, is inconsistent with the no-fault act, which provides PIP protection for “accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household . . . .
It is an undeniable fact that parents involved in custody disputes often reach an agreement between themselves to provide for a different custodial environment than
Thus, in Grange, I conclude that the presumption of domicile created by the family court’s judgment of divorce is not rebutted under the facts of this case and, consistent with the majority, I would reverse the judgment of the Court of Appeals and remand to the circuit court for entry of summary disposition in favor of Grange. In ACIA, I conclude that the Court of Appeals erred by finding a question of fact regarding the child’s domicile. Reviewing the record as a whole, I conclude that the evidence did not rebut the presumption, created by the family court’s orders, that the child was domiciled in Tennessee. Consistent with the majority, I would reverse the judgment of the Court of Appeals and remand to the circuit court for entry of summary disposition in favor of ACIA.
I. ANALYSIS
A. DOMICILE GENERALLY
A person’s domicile is significant in a variety of legal contexts,
“Domicile” is, of course, a concept widely used in both federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is generally uncontroverted. “Domicile” is not necessarily synonymous with “residence,” and one can reside in one place but be domiciled in another. For adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one’s intent to remain there. One acquires a “domicile of origin” at birth, and that domicile continues until a new one (a “domicile of choice”) is acquired. Since most minors are legally incapable of forming the requisite intent to establish a domicile, their domicile is determined by that of their parents.[11 ]
Domicile by operation of law occurs when a person lacks the capacity to establish a domicile by choice.
B. DOMICILE AS IT RELATES TO THE MICHIGAN NO-FAULT ACT
Pursuant to MCL 500.3114(1), the no-fault act provides PIP protection for “accidental bodily injury to the person named in the policy, the person’s spouse, and a relative of either domiciled in the same household .. . .” Generally speaking, domicile determinations for purposes of assessing insurer liability in the no-fault context are made by considering the factual circumstances surrounding the party’s living situation and by balancing and weighing several factors, none of which is determinative on its own.
Among the relevant factors are the following: (1) the subjective or declared intent of the person of remaining, either permanently or for an indefinite or unlimited length of time, in the place he contends is his “domicile” or “household”; (2) the formality or informality of the relationship between the person and the members of the household; (3) whether the place where the person lives is in the same house, within the same curtilage or upon the same premises; (4) the existence of another place of lodging by the person alleging “residence” or “domicile” in the household.[19 ]
To address “the particular problems posed by young people departing from the parents’ home and establishing new domiciles as part of the normal transition to adulthood and independence[,]”
[(1)] whether the claimant continues to use his parents’ home as his mailing address, [(2)] whether he maintains some possessions with his parents, [(3)] whether he uses his parents’ address on his driver’s license or other documents, [(4)] whether a room is maintained for the claimant at the parents’ home, and [(5)] whether the claimant is dependent upon the parents for support.[ 22 ]
However, this Court has not yet addressed where a minor child is “domiciled” for purposes of no-fault insurance when the child’s parents maintain two separate households, which both constitute a legal residence of the child pursuant to the Child Custody Act.
C. CUSTODY DETERMINATIONS
Under the Child Custody Act, until a child turns 18, the family court has jurisdiction to make child custody determinations when there is a child custody dispute.
(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following:
(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age....[25 ]
The Child Custody Act first provided for joint custody in 1981.
... an order of the court in which 1 or both of the following is specified:
(a) That the child shall reside alternately for specific periods with each of the parents[, or]
(b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child. [][27 ]
Although not specifically named as such by the statute, “the custody described in [(a)] is commonly referred to as joint physical custody, and that described in [(b)] is referred to as joint legal custody.”
Under MCL 722.31, where the parents of a child share joint legal custody and parental custody of that child is governed by a court order, the child is considered to have a legal residence with each parent for
D. A MINOR CHILD MAY NOT HAVE DUAL DOMICILES
Complications arise in determining the domicile of a child for purposes of no-fault insurance where the child has two legal residences because his or her parents share legal custody. The trial court and the Court of Appeals both reached the extraordinary conclusion in Grange that Josalyn had two domiciles: one with Ros-inski and one with Lawrence. This conclusion departs from established Michigan law that a person may have only one domicile.
As this Court stated in Gluc v Klein:
Under the common law, there was a distinction between “domicile” and “residence.” The former, in its ordinary acceptation, was defined to be, “A place where a person lives or has his home,” while “Any place of abode or dwelling place,” however temporary it might have been, was said to constitute a residence. A person’s domicile was his legal residence or home in contemplation of law.[34 ]
While “residence” may be defined in more restrictive ways under Michigan law,
E. THE MAJORITY’S DOMICILE BY OPERATION OF LAW APPROACH
The majority attempts to extend the common-law doctrine of domicile by operation of law beyond its logical and practical bounds. I agree with the majority that unemancipated minor children cannot establish a domicile by choice, given that they are incapable of forming the requisite intent.
Despite the fact that the majority and I agree that a child may only have one domicile at any given time, the majority’s alternating-domicile theory for children whose parents share joint physical custody contradicts this long-standing principle and in substance permits dual domiciles for such children. This alternating-domicile concept is unprecedented in the domicile jurisprudence of this state, which views domicile as that place where a person ultimately returns, despite going elsewhere for a period of time.
Further, the majority opinion assumes that a custody order establishes domicile as a matter of law. While a family court’s orders pertaining to custody and the legal residence of a child, if implemented, can certainly establish custodial environments from which a domicile arises and, thus, a legal determination of domicile can be made, I question whether the family court has the authority under the Child Custody Act to explicitly set a child’s domicile by court order. The Child Custody Act speaks in terms of “legal residence” and only uses the word “domicile” in one section of the statute, MCL 722.27b(9), which states:
The court shall not enter an order prohibiting an individual who has legal custody of a child from changing the domicile of the child if the prohibition is primarily for the purpose of allowing a grandparent to exercise the rights conferred in a grandparenting time order entered under this section.
Significantly, the use of “domicile” in this section does not suggest that family courts have the authority to establish, as a matter of law, a child’s domicile in making a custody determination. Rather, this section assumes a parent has legal custody of a child, and it prohibits a court from barring that parent from a change of domicile so that a grandparent may seek or maintain visitation with the child.
Moreover, the majority rule now requires insurance companies to inquire about custody orders, obtain a copy of those orders, and interpret those orders to properly assess its risks,
A domicile determination for a minor child of parents who have separate domiciles brings with it unique considerations due to the family court’s involvement in making child custody determinations and the court’s involvement in circumstances where a change in the legal residence of a child is disputed.
Further, custody and residence determinations are made by family courts when disputes arise between parents.
Nonetheless, I recognize the reality that, with the passage of time, a child’s living situation will not always align with the family court’s orders, despite the general
Regarding a change in legal residence, the Child Custody Act requires parents to seek the family court’s approval before moving a child more than 100 miles from his or her legal residence, unless, among other exceptions, the other parent consents to the move.
In consideration of these realities, while at the same time recognizing the need for a rule that fosters consistency, I would hold that, for purposes of determining domicile under the no-fault act, where the facts regarding the child’s living arrangements are reasonably consistent with the provisions of the family court’s orders, those orders will be determinative of the child’s domicile.
In determining whether this presumption can be rebutted, I would have courts look to the traditional nonexclusive factors for determining domicile for purposes of no-fault insurance articulated by this Court in Workman and, particularly, those articulated by the Court of Appeals in Dairyland, which specifically address whether a child is domiciled with his or her parents under the no-fault act. While Dairyland involved a child that had reached the age of majority, I find these factors to be similarly relevant for determining the intent of a minor child’s parents regarding the child’s domicile because they focus on objective indicators of the intent to have the child remain permanently in a given home. Additionally, there are other relevant factors that are unique to the context of minor children whose parents share joint custody: (1) where the child actually spends the majority of his or her time, and (2) where the child actually sleeps the majority of the nights of the week. It bears repeating, however, that none of these domicile factors would alone be determinative.
II. APPLICATION
A. GRANGE INS CO OF MICH v LAWRENCE
Because the underlying facts necessary to determine Josalyn’s domicile at the time of her death are not in dispute, where Josalyn was domiciled is a question of law.
With regard to whether this presumption created by the family court order could be rebutted, I would conclude that it cannot under the facts of this case. Because Rosinski’s residence was identified whenever an address was needed for the child, the little mail Josalyn received would have been sent to this address. The accident report and Josalyn’s death certificate both listed Rosinski’s home as the child’s home. While Lawrence did maintain a room for the children in his apartment, the sisters shared a bed, and the majority of Josalyn’s clothing and her pets were kept at Rosinski’s residence. Josalyn depended on both of her parents for support. The facts also indicate that Josalyn spent the majority of her time and the majority of her overnights at Rosinski’s home. Significantly, both Lawrence and Rosinski indicated that Rosinski’s home was Josalyn’s primary residence, given the ordinary meaning of the phrase. Overall, the facts in this case indicate that Lawrence and Rosinski implemented the custody order and do not demonstrate that Lawrence and Rosinski jointly intended for Lawrence’s residence to be the child’s only domicile. On this basis, I would conclude that the lower courts erred by concluding that Josalyn was domiciled with both Lawrence and Rosinski and that Grange was liable for PIP benefits arising out of Josalyn’s injuries and
B. ACIA V STATE FARM MUTUAL AUTO INS CO
The material facts necessary to determine Sarah’s domicile at the time of her death are not in dispute; therefore, where Sarah was domiciled is a question of law.
With regard to whether this presumption could be overcome in this case, the factual situation presented in ACIA is a closer question than the situation presented in Grange. However, as in Grange, I would conclude that the presumption likewise cannot be rebutted under the facts of ACIA. The fact that Sarah stayed in Michigan after her summer break, attended high school in Michigan the following fall, and obtained a part-time job in Michigan, indicates that Sarah used Taylor’s address as her mailing address and on documents. Taylor’s address was also listed as Sarah’s address on Sarah’s hospital records and death certificate. Given the length of Sarah’s stay in Michigan, it can be inferred that she had a significant amount of possessions at Taylor’s Michigan residence. The facts indicate that Sarah had her own room in Michigan and that Taylor provided for Sarah while she was in Michigan. It is also clear that for the period of time that Sarah was staying in Michigan, she actually spent most of her time and overnights in Michigan; however, prior to Sarah coming to Michigan, she spent nearly 11 years in Tennessee with Campanelli, only occasionally visiting Taylor in Michigan. None of the facts in the record suggest that Sarah’s domicile in Tennessee ceased to exist; the facts indicate that Campanelli gave Sarah permission to stay temporarily in Michigan after the summer to attend school in the fall so that Sarah could get to know Taylor better. Campanelli stated, “I did eventually agree that she could stay on a temporary basis and enroll in high school!,]” and further stated, “It was never intended to be permanent....”
The facts in this case are not so clearly inconsistent with the family court’s orders so as to rebut the presumption that domicile is established by the custody order. Absent evidence of a clear joint intent on the part of Sarah’s parents to change Sarah’s domicile, the presumption that Sarah was domiciled in Tennessee would stand. While the facts certainly indicate that there was the intent for Sarah to remain for an extended period of time in Michigan, the facts do not clearly indicate that Sarah’s parents jointly intended for her to remain in Michigan.
In my view, the lower courts improperly focused on Sarah’s intent with regard to
I would conclude that Sarah was domiciled with Campanelli in Tennessee at the time of her death; therefore, ACIA is not liable for providing PIP benefits for Sarah’s injuries and death.
III. CONCLUSION
Consistent with the majority opinion, I would reaffirm Michigan’s long-standing principle that a person, including a minor child, can have only one domicile. Further, I concur in the majority’s results in these cases. I would reach those results instead by holding that when a minor child has two legal residences pursuant to the Child Custody Act, family court orders relating to custody of the child and the child’s residence(s) create a rebuttable presumption of domicile under the no-fault act. Under the facts of these cases, the presumptions in these cases would not be rebutted.
MCL 722.21 et seq.
The majority is equating physical custody with domicile by operation of law, despite the fact that a child whose parents share, at a minimum, joint legal custody has a legal residence with each parent. While in the overwhelming number of cases it may turn out that a child’s domicile is the same as that indicated by the custody order, in my view, a custody order does not have the effect of creating domicile, instead it creates the custodial environment from which domicile can he established. See part 1(C).
MCL 500.3114(1) (emphasis added).
Notwithstanding all the good intentions behind a court order establishingjoint custody, the reality remains that there is but one domicile for a minor child. As explained more fully in this opinion, see part 1(F), factors such as where the child goes to school, where the majority of the child’s belongings are kept, and the address used to register the child for functions will assist a fact-finder in making a domicile determination.
See, e.g., People v Dowdy,
See In re High, 2 Doug 515, 522 (1847) (“It may be laid down as a settled maxim that every man must have such a national domicile somewhere.”).
Id.
Dowdy,
As stated by this Court in In re High, 2 Doug at 523-524:
[Domicile] is always that place which has more of the qualities of a principal or permanent residence, and more pretensions to be considered as such, than any other place. Two things, it is said, must concur to constitute domicile. First, residence, which however is not indispensable to retain domicile after it has been once acquired; and, secondly, intention of making it the home of the party: Story’s Confl. Laws, § 44. The question of domicile, is then, a question of fact and intent, and if these elements are found, the reference of the domicile to one place or another depends upon the comparative weight of the circumstances. In the language of the chief justice, in Abington v. North Bridgewater, 23 Pick., 178, “it depends, not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his home or domicile in one place, overbalance all the like proofs tending to establish it in another.
8 Mich Civ Jur, Domicile, § 1.
Miss Band of Choctaw Indians v Holyfield,
8 Mich Civ Jur, Domicile, § 5.
Miss Band of Choctaw Indians,
Specifically, “[t]he domicile] of origin is the domicilie] which a person has at birth[,]” and “[t]he domicilie] of a legitimate child at birth is the domicilie] of its father at that time, subject to the rule stated in § 22 pertaining to divorce or separation of the parents. If the child is not the legitimate child of its father, or is born after the father’s death, its domicile at birth is the domicilie] of its mother at that time.” Restatement Conflict of Laws, 2d, § 14(2), p 59. The domicile of origin “continues until a new domicile is acquired.” Id. at comment b.
See Hering v Mosher,
Even when a family court order awards physical custody primarily or exclusively to one parent, the Legislature has determined that where joint legal custody exists, the minor child has a legal residence with each parent. MCL 722.31. See also part I(C).
See part I(E).
Workman v Detroit Auto Inter-Ins Exch,
Id. at 496-497 (citations omitted).
Dairyland Ins Co v Auto-Owners Ins Co,
See, e.g., Fowler v Auto Club Ins Ass’n,
Dairyland,
MCL 722.31(1).
MCL 722.27.
MCL 722.27(1)(a).
MCL 722.26a.
MCL 722.26a(7).
Dailey v Kloenhamer,
MCL 722.26a(7)(a).
MCL 722.31 provides, in part:
(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued.
(2) A parent’s change of a child’s legal residence is not restricted by subsection (1) if the other parent consents to, or if the court... permits, the residence change. This section does not apply if the order governing the child’s custody grants sole legal custody to 1 of the child’s parents....
Actions of a parent pursuant to MCL 722.31 are commonly referred to as petitions to change domicile, despite MCL 722.31’s use of the term “residence.” See, e.g., McKimmy v Melling,
Dowdy,
Workman,
Ante at 498.
Gluc v Klein,
See, e.g., Dowdy,
that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall he his or her official residence for purposes of this act. [Quotation marks and citation omitted.]
Miss Band of Choctaw Indians,
MCL 722.31(1). The general rule is that “[a] child’s domicile, in the case of the divorce or separation of his parents, is the same as that of the parent to whose custody he has been legally given.” Restatement Conflicts of Laws, 2d, § 22, comment d. However, this rule is unhelpful where legal custody has been given jointly to both parents. See also In re Volk,
In re High, 2 Doug at 522-523.
Ante at 493, quoting In re High, 2 Doug at 523.
See In re High, 2 Doug at 522 (“[Domicile] is always that place which has more of the qualities of a principal or permanent residence, and more pretensions to be considered as such, than any other place.”).
See Titan Ins Co v Hyten,
Footnote 77 of the majority’s opinion, which indicates that in situations of joint legal and physical custody, domicile would alternate consistent with the family court’s orders, is particularly troubling in this regard.
MCL 500.3114(1). Emphasis added.
Take, for example, the following hypothetical: A Michigan couple gets divorced, and the mother and the father are awarded joint legal custody of the couple’s three-year-old daughter, but mother is awarded sole physical custody. The father moves to Florida because he cannot find work in Michigan. Ultimately, after several months, the mother decides she does not want to raise the young child, discusses this with the father, and the child is sent to live with the father in Florida. The mother and the father do not go back to court to seek a change in custody in either state. The child gets into a car accident at the age of 16 in Florida. Under the majority’s rule, the child would be domiciled in Michigan, despite living for nearly 13 years in Florida under the exclusive care of her father.
MCL 722.27; MCL 722.31.
See In re High, 2 Doug at 522-523.
Workman,
Kirby v Mich High Sch Athletic Ass’n,
See the discussion of presumptions in Johnson v Secretary of State,
The burden of producing evidence is not invariably allocated to the pleader of the fact to be proved. That burden may be otherwise allocated by the Legislature or judicial decision based, among other factors, on an estimate of the probabilities, fairness and special policy considerations, and similar concerns may justify the creation, judicially or by law, of a presumption to aid the party who has the burden of production.
See also Juvelis v Snider,
See MCL 722.27(1); MCL 722.31(2).
This Court held in Harvey v Harvey,
MCL 722.31(2).
MCL 722.27(1)(e) provides, in part:
If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may]...
(c) Modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child
reaches 18 years of age and, subject to section 5b of the support and parenting time enforcement act,1982 PA 295 , MCL 552.605b, until the child reaches 19 years and 6 months of age. The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.
When family court orders exist, they are, in my view, central to determining the domicile of a minor child in the no-fault context. But domicile determinations in no-fault decisions have no effect in family court adjudications regarding a child’s custody and legal residence. Family courts are charged with making determinations that focus on the best interests of the child. See MCL 722.27(1) (“If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may do 1 or more of the following!.]”) (emphasis added); see also MCL 722.31(4) (“Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court’s deliberations!.]”) (emphasis added); Gagnon v Glowacki,
The majority approach fails to recognize that a court order may allow parents to modify the time a child spends with each parent. For example, in Grange the custody order provides:
IT IS FURTHER ORDERED that the Defendant, EDWARD BLAINE LAWRENCE, shall have rights of parenting time with the minor child at the following times:
1. Alternating weekends from Friday at 6p.m. until Sunday at 6 p.m.;
2. Every Wednesday from 4:30 p.m. until 7:30 p.m.[;]
3. Alternating Holidays by mutual agreement. .. ;
4. Any other reasonable times that the parties may agree to[.] [Emphasis added.]
Under this provision of the order, the parents were free to alter the child’s living arrangements such that the father could be primarily responsible for the physical custody of the child. The majority would ignore a subsequent decision by the parents to make the father the new primary custodian in fact, reasoning that such changes only alter parenting time and not the domicile. For the reasons stated in this opinion, we believe the better approach is to make domicile determinations on the basis of the actual living situation of the child.
It is important to note that while “physical custody” is a term commonly associated with the custody described in MCL 722.26a(7)(a), this phrase is not defined in the Child Custody Act. However, MCL 722.1102(n), a provision of the Uniform Child-Custody Jurisdiction and Enforcement Act, defines “physical custody” as “the physical care and supervision of a child.”
See Citizens Mut Ins Co v Community Servs Ins,
Workman,
The rule I propose is consistent with this Court’s decision in Volk in which the child was determined to be domiciled with the child’s mother where the mother was given unrestricted custody. Under my rule, just as under the majority rule, a child whose mother or father is given sole legal and physical custody, i.e., where one parent has unrestricted custody, is domiciled with that parent because there is only one legal residence that can constitute the child’s domicile.
Further, I note that in Vanguard Insurance Co v Racine,
Workman,
See Fowler,
In our grant order, this Court asked the parties to address in part “whether an insurance policy provision giving preclusive effect to a court-ordered custody arrangement is enforceable.” Grange Ins Co of Mich v Lawrence,
“To the degree that [a policy] is in conflict with the [no-fault] statute, it is contrary to public policy and, therefore, invalid.” Cruz v State Farm Mut Auto Ins Co,
[A] person related to you by blood, marriage or adoption and whose principal residence is at the location shown on the Declarations Page. If a court has adjudicated that one parent is the custodial parent, that adjudication shall be conclusive with respect to the minor child’s principal residence. [Emphasis added.]
The issue is whether, under my rule, the italicized portion of this definition would violate the no-fault act, which provides for PIP benefits for relatives of an insured, who, in relevant part, are a “relative of [a person named in the policy or the person’s spouse] domiciled in the same household . . . .” MCL 500.3114(1) (emphasis added).
It is clear from the policy’s choice of the phrase “principal residence” that Grange anticipated the factual dilemma that arose in this case: a child of divorced parents with two legal residences under Michigan law. The policy’s statement that a court adjudication regarding custody is conclusive constitutes Grange’s attempt to close what it saw as a potential gap in the no-fault act that could have been interpreted to expand Grange’s liability. Because a minor child of divorced parents could have two legal residences, Grange recognized that it was not entirely clear under Michigan law whether such a child could likewise have two domiciles for purposes of PIP benefits pursuant to MCL 500.3114(1). However, because Grange’s policy makes custody orders conclusive of domicile, the policy would conflict with the rule I have proposed in this opinion.
See Fowler,
See Miss Band of Choctaw Indians,