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Docket Number

Docket No. 101533.

Attorney(S)

Paul M. Ladas, for plaintiff. Persinger Farmer, P.C. (by Floyd H. Farmer, Jr.) for defendant.

Judges

PER CURIAM.

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Smart Summary

Anderson v. Anderson, Docket No. 101533 (Mich. Ct. App. July 20, 1988)

Factual and Procedural Background

The parties were divorced by judgment entered August 27, 1979. Plaintiff (the mother) was awarded custody of the parties' minor daughter, Melissa (born June 8, 1977); defendant (the father) received liberal visitation rights (at all reasonable times upon reasonable notice and alternate holidays). The parties generally cooperated regarding visitation and defendant maintained a strong relationship with the child.

In February 1987 defendant moved for a change of custody after hearing rumors that plaintiff intended to remove Melissa from Michigan. Plaintiff denied the rumors. Plaintiff later filed a motion seeking permission to relocate Melissa to Arizona because plaintiff's husband (Mr. Brilliant) hoped to obtain employment there and his parents reside in Arizona; the move would also allow plaintiff to reduce work hours and spend more time with the children. Defendant conceded he could not prove a material change in circumstances to warrant a change of custody, so the proceeding focused on plaintiff's motion to remove the child.

A hearing was held May 1, 1987. The trial court concluded neither party was motivated by improper purpose, found the move would further Mr. Brilliant's career and improve the family's financial situation, and approved removal to Arizona while fashioning an alternative visitation schedule (six weeks in summer, entire Christmas vacations, alternate spring vacations, and other arranged times; transportation costs to be shared). An order permitting removal was entered June 9, 1987. Defendant appealed, challenging the trial court's allowance of the removal.

Legal Issues Presented

Whether the trial court erred in permitting the custodial parent to remove the minor child from the State of Michigan.
Whether the trial court's findings with respect to factors (1) and (4) of the D'Onofrio test were erroneous — specifically, (1) whether the prospective move would improve the quality of life for the custodial parent and the child, and (4) whether there was a realistic opportunity for visitation adequate to preserve and foster the noncustodial parent's relationship with the child.

Arguments of the Parties

Plaintiff's Arguments

The move to Arizona would further Mr. Brilliant's employment prospects, thereby improving the family's financial situation.
Increased income would permit plaintiff to reduce work hours and spend more time with the children; the move would benefit Melissa and the family unit as a whole (including an adopted son).
The proposed visitation schedule (extended visits several times a year) would provide a realistic opportunity to preserve and foster the father-child relationship.
Neither she nor her husband were motivated by an improper purpose in seeking removal; Melissa was not opposed to the move (contrary to the friend of the court's report).

Defendant's Arguments

He initially sought a change of custody based on rumors of proposed removal and opposed the removal when plaintiff filed for it.
On appeal, he challenged the trial court's factual findings on D'Onofrio factors (1) and (4): arguing the move would not sufficiently improve the child's quality of life and that the alternate visitation plan (extended periods) was inadequate compared to the prior frequent, weekend-focused visitation schedule.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
D'Onofrio v D'Onofrio, 144 N.J. Super. 200; 365 A.2d 27 (1976)	The multi-factor test for adjudicating a custodial parent's request to remove a minor child from the state (factors including improvement in quality of life, motivation to defeat visitation, financial motives of noncustodial parent, and realism of alternative visitation).	The court adopted the D'Onofrio test as the appropriate framework and applied its enumerated factors to the facts of this case.
Mills v Mills, 152 Mich. App. 388, 393-395; 393 N.W.2d 903 (1986)	Supports adoption of the D'Onofrio test in Michigan; clarifies that preponderance of the evidence is the proper standard for removal petitions and that appellate review is for abuse of discretion.	The court relied on Mills to apply the preponderance standard and to state that reversal requires an abuse of discretion.
Dick v Dick, 147 Mich. App. 513, 516-517; 383 N.W.2d 240 (1985)	Cited as part of the line of cases adopting D'Onofrio; also cited as a decision applying a different standard of review in a related context.	The court referenced Dick as part of the controlling line of cases adopting D'Onofrio and noted that Dick cited a different standard in a particular context but proceeded to apply the prevailing D'Onofrio approach.
Bielawski v Bielawski, 137 Mich. App. 587, 591-592; 358 N.W.2d 383 (1984)	Part of the Michigan decisions adopting the D'Onofrio framework.	Used to support the proposition that D'Onofrio is the preferred test and to situate the instant decision within that line of authority.
Scott v Scott, 124 Mich. App. 448, 451-452; 335 N.W.2d 68 (1983)	Supports appellate standard that a trial court's allowance of removal will not be reversed absent an abuse of discretion.	The court cited Scott in affirming that review of a removal decision is for abuse of discretion.
Henry v Henry, 119 Mich. App. 319, 323; 326 N.W.2d 497 (1982)	Included among Michigan cases rejecting the older "best interests of the child" test in favor of the D'Onofrio approach.	Referenced as part of the line of cases endorsing the D'Onofrio test.
Watters v Watters, 112 Mich. App. 1, 11; 314 N.W.2d 778 (1981)	Earlier case applying a "best interests of the child" test that later Michigan decisions rejected for removal disputes.	The court noted Watters as belonging to an earlier line of cases whose test was rejected in favor of D'Onofrio.
Hutchins v Hutchins, 84 Mich. App. 236, 238; 269 N.W.2d 539 (1978)	Another early case employing the "best interests" test subsequently rejected for removal disputes.	Listed as part of the earlier cases whose approach was supplanted by D'Onofrio and the later Michigan decisions.

Court's Reasoning and Analysis

The court applied the D'Onofrio test (as adopted by recent panels of this Court) to evaluate plaintiff's custodial parent's motion to remove the minor child from the state. Under that test the trial court must consider: (1) whether the move can improve the quality of life for the custodial parent and child; (2) whether the move is motivated to defeat visitation and whether the custodial parent will comply with substitute visitation while beyond the state's jurisdiction; (3) whether the noncustodial parent's resistance is motivated by financial advantage regarding support; and (4) whether there is a realistic opportunity for visitation adequate to preserve and foster the noncustodial parent's relationship with the child.

The opinion explains the applicable standards: to support removal the moving party need show entitlement by a preponderance of the evidence (the clear-and-convincing standard used in custody changes does not apply), and appellate review of a trial court's removal decision is for abuse of discretion.

Addressing the specific facts, the court found: (a) neither party acted from an improper purpose (factor 2), and defendant did not demonstrate financial-motive objections (factor 3); (b) the move would further Mr. Brilliant's career and thereby improve the family's financial situation, which would allow plaintiff to reduce work hours and spend more time with the children and meet the children's anticipated needs — the court concluded plaintiff satisfied the preponderance-of-evidence burden that the move would improve the quality of life for plaintiff, Melissa, and the family (factor 1); and (c) although defendant's contact with Melissa would be less frequent, the trial court found that extended, uninterrupted visitation periods (six weeks in summer, entire Christmas vacations, alternate spring vacations, and other arranged times) constituted a realistic opportunity to preserve and foster the father-child relationship (factor 4). The court observed that the friend of the court's report was contrary to the trial court's finding that Melissa was not opposed to the move.

The appellate panel rejected defendant's contention that the court placed exclusive emphasis on Mr. Brilliant's interests, explaining the career opportunity was considered only insofar as it demonstrated benefits to the entire family. The panel also rejected the claim that the alternate visitation schedule was inadequate, citing D'Onofrio's recognition that uninterrupted visits of a week or more several times a year may better serve a paternal relationship than frequent short visits that involve little exercise of parental responsibility.

Holding and Implications

AFFIRMED.

Direct effect: The trial court's order permitting plaintiff to remove Melissa from Michigan to Arizona and the attendant modified visitation schedule (six weeks in summer, entire Christmas vacations, alternate spring vacations, and other arranged times; transportation costs divided equally) was affirmed. The appellate court applied the D'Onofrio multi-factor test, concluded the trial court did not abuse its discretion, and found plaintiff met the preponderance-of-evidence burden on the relevant factors the defendant contested.

Broader implications: The opinion applies and endorses the D'Onofrio framework as adopted in recent Michigan decisions and reiterates that a preponderance of the evidence supports removal petitions and that appellate review is for abuse of discretion. The opinion does not announce a new rule of law beyond applying those established authorities.

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ANDERSON v ANDERSON

PER CURIAM.

Defendant appeals as of right from the order of the Ottawa Circuit Court allowing plaintiff (defendant's ex-wife) to remove their minor daughter Melissa (born June 8, 1977) from the State of Michigan. We affirm.

By an August 27, 1979, judgment of divorce, the parties' marriage was terminated and plaintiff was awarded custody of Melissa. However, defendant was granted very liberal visitation rights ("at all reasonable times upon reasonable notice" and alternate holidays). To their credit, the parties have been cooperative with each other as to matters concerning Melissa, including visitation. Defendant has exercised his visitation rights diligently and has fostered a strong relationship with the child.

In February of 1987, defendant apparently heard unsubstantiated rumors that plaintiff intended to remove Melissa from this state (which plaintiff adamantly denied) so he filed a motion with the court for change of custody. Later, plaintiff did in fact file a motion requesting permission to remove Melissa to Arizona. Plaintiff had remarried six years earlier and her present husband, Mr. Brilliant, hoped to obtain employment in Arizona. Also, plaintiff and Mr. Brilliant desired to move to that state because his parents currently reside there.

Prior to the hearing, defendant conceded that he could not prove there had been a material change of circumstances which warranted a change in custody. The case therefore proceeded on the issue whether plaintiff should be allowed to remove Melissa to Arizona.

The hearing was held on May 1, 1987. After both parties presented compelling evidence in support of their positions, the trial court stated that its decision "is probably one of the most difficult ones I have had of this type in a long time." Having to make a decision, though, the court granted plaintiff's motion to remove Melissa to Arizona. It first found that neither party was motivated by any improper purpose in seeking or opposing the change of domicile. However, it went on to find that the move would further Mr. Brilliant's career, which would in turn improve the family situation. With an increase in Mr. Brilliant's income, plaintiff could reduce her work hours and spend more time with the children (the Brilliants also have a minor son by adoption). The increased income was also necessary to meet the children's added needs. The court recognized that defendant would have less frequent contacts with Melissa but believed this would be offset by allowing extended visitations several times throughout the year. Accordingly, defendant was granted visitation for six weeks during the summer, for the entire Christmas vacations, for alternate spring vacations, and for any other times that could be arranged. The costs of transportation were to be divided equally between the parties. Finally, the court noted that, contrary to what the friend of the court's report indicated, Melissa was not opposed to the move to Arizona.

An order modifying the divorce judgment and allowing plaintiff to remove Melissa from the state was entered on June 9, 1987. Defendant claims his appeal as of right from that order. The sole issue on appeal is whether the trial court erred in allowing the removal of Melissa.

In reviewing a custodial parent's request to change the domicile of a minor child, panels of this Court have most recently adopted the test formulated in D'Onofrio v D'Onofrio, 144 N.J. Super. 200; 365 A.2d 27 (1976). See Mills v Mills, 152 Mich. App. 388, 394-395; 393 N.W.2d 903 (1986); Dick v Dick, 147 Mich. App. 513, 516-517; 383 N.W.2d 240 (1985); Bielawski v Bielawski, 137 Mich. App. 587, 591-592; 358 N.W.2d 383 (1984); Scott v Scott, 124 Mich. App. 448, 451-452; 335 N.W.2d 68 (1983); Henry v Henry, 119 Mich. App. 319, 323; 326 N.W.2d 497 (1982). Those cases rejected the "best interests of the child" test applied in the earlier cases of Watters v Watters, 112 Mich. App. 1, 11; 314 N.W.2d 778 (1981), and Hutchins v Hutchins, 84 Mich. App. 236, 238; 269 N.W.2d 539 (1978). For the reasons discussed in the more recent line of cases, we believe that D'Onofrio is the better test and that the trial court properly applied it in the instant case.

The D'Onofrio test provides that, when a trial court rules on a custodial parent's motion to remove a minor child from the state, it must consider: (1) whether the prospective move has the capacity to improve the quality of life for both the custodial parent and the child; (2) whether the move is inspired by the custodial parent's desire to defeat or frustrate visitation by the noncustodial parent and whether the custodial parent is likely to comply with the substitute visitation orders where he or she is no longer subject to the jurisdiction of the courts of this state; (3) the extent to which the noncustodial parent, in resisting the move, is motivated by the desire to secure a financial advantage in respect of a continuing support obligation; and (4) the degree to which the court is satisfied that there will be a realistic opportunity for visitation in lieu of the weekly pattern which can provide an adequate basis for preserving and fostering the parental relationship with the noncustodial parent if removal is allowed. 144 N.J. Super. 206-207. To support a removal petition, the moving party need only show that such is warranted by a preponderance of the evidence. The clear and convincing evidence standard, applicable to change of custody cases, has no application. Mills, supra, pp 393-394. A lower court's decision to allow removal of the child from the state will not be reversed on appeal absent an abuse of discretion. Id., p 394; Scott, supra, p 451. But see Dick, supra, p 516 (wherein this Court, citing the statute and a case pertaining to change of custody disputes, applied a different standard of review).

In the instant case, defendant challenges only the trial court's findings as to factors (1) and (4) of the D'Onofrio test. He does not dispute the findings regarding factors (2) and (3). We will therefore limit our review accordingly.

Contrary to what defendant contends, we do not believe the court considered the interests of Mr. Brilliant to the exclusion of the entire family's interests in general and Melissa's interests in particular. The court did place great emphasis on career opportunities for Mr. Brilliant in Arizona, but it did so only to illustrate the benefits to the entire family unit. The move would improve the family's financial situation. This was particularly important because the Brilliants recently adopted a six-year-old boy and because the financial needs of the children would likely increase as they grew older. Also, the added income would allow plaintiff to cut back on her work hours and spend more time raising the children — which she expressed a desire to do. Defendant cannot reasonably dispute that this would be a great benefit to the family unit. We believe plaintiff met her burden of proving by a preponderance of the evidence that the quality of hers, Melissa's, and the entire family's lives will be improved by the move to Arizona.

Defendant next argues that the trial court erred in finding that an adequate, alternate visitation schedule was available. He asserts that the extended periods of visitation under the new plan can in no way compare with the frequent visitations (alternate weekends and whenever else possible) under the old plan. We disagree.

D'Onofrio does not require that the new visitation plan and the old visitation plan be equal in all respects. Dare to say, such equality could never be possible. D'Onofrio requires only that there be a realistic opportunity for preserving and fostering the parental relationship previously enjoyed by the noncustodial parent. Here, in place of having Melissa on alternate weekends (and other, impromptu times), defendant has the child for six weeks during the summer, the entirety of each Christmas vacation, alternate spring vacations, and other times which can be arranged. Perhaps the extended periods of visitation will foster, not hinder, an even closer father-child relationship. As the D'Onofrio Court stated:

It is at least arguable, and the literature does not suggest otherwise, that the alternative of uninterrupted visits of a week or more in duration several times a year, where the father is in constant and exclusive parental contact with the children and has to plan and provide for them on a daily basis, may well serve the paternal relationship better than the typical weekly visit which involves little if any exercise of real paternal responsibility. [ 144 N.J. Super. 207.]

Affirmed.

ANDERSON v. ANDERSON