Scott Bassett of Bradenton, Florida--a successful Michigan family law appellate lawyer--is today's guest blogger. He writes about the remand from the Court of Appeals of a case involving a Wayne County trial court's denial of a relocation motion.
In an interesting unpublished decision, the Court of Appeals, in a 2 to 1 decision, vacated Judge Halloran's (Wayne Co.) denial of a change of domicile request and remanded for a new hearing before a different judge. (Congrats to Anne Argiroff for her success in this appeal).
I find this interesting because these factors, at least to me, ought to be relevant to a change of domicile request. Indeed, if the evidence is strong enough on these factors, I can imagine cases where they should be dispositive, but apparently the majority on this panel thinks otherwise.
As in the Pierron school change dispute, the panel showed a willingness to reject the trial court's factual determinations. I wonder if we are seeing a trend here where the C of A is now willing to do what is traditionally refrained from in family cases and substitute its view of the facts for that of the trial judge.
There were several other areas where the majority expressed concern with the trial court's handling of the matter, including taking nine months to hear and decide the case, its failure to discuss how the child's preference impacted the decision, etc. They seemed sufficiently aggravated that they decided a different judge should hear the remand proceedings, basically starting from scratch with a "a new hearing on the motion to change domicile based on the currently existing factual circumstances."
Judge Jansen wrote a dissent disagreeing with the majority's conclusion the Judge Halloran's findings were against the great weight of the evidence, stating:
"Although the court found that the planned move to Massachusetts would substantially improve plaintiff’s quality of life from a financial standpoint, the court did not believe that the move would improve the child’s overall quality of life. The court observed that the child had a strong relationship with defendant and defendant’s extended family in Michigan, and that defendant and his family provided the child with stability and a sense of familial permanence. The court found that the child’s friends were in Michigan and that he was doing well academically and socially in Michigan. The court concluded that the requested move to Massachusetts would be disruptive to the child’s life."
This case demonstrates once more that change of domicile disputes are the most difficult of all family law cases. Although there was a winner and loser in the appeal, it seems the time factor involved makes the child the real loser.
The opinions are here:
Derry v Derry, Per Curiam (Cavanaugh and Talbot, JJ) (Unpublished)
Derry v Derry, Dissenting (Jansenm PJ)
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