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### STATE OF MICHIGAN

COURT OF APPEALS

MELISSA L. FLICK, f/k/a MELISSA L. MARSH,

Plaintiff-Appellee, UNPUBLISHED January 5, 2016

v No. 327679 Midland Circuit Court JUSTIN D. MARSH, LC No. 11-007745-DM

Defendant-Appellant.

Before: Saad, P.J., and Ste phens and O’Brien, JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 the trial court’s opinion and order granting plaintiff’s motion to change the domicile of their minor child. For the reasons set forth below, we affirm.

“This Court reviews for an abuse of discretion a trial court’s ultimate decision whether to grant a motion for change of domicile. In this context, an abu se of discretion exists when the result is so palpably and grossl y violative of fact and logic t hat it evidences a p erversity of will, a defiance of judgment, or the exe rcise of passion or bias.” Sulaica v Rometty , 308 Mich App 568, 577; 866 NW2d 838 (2014) (internal citation omitted). Similarl y, in this context, this Court reviews for clear legal error que stions of law, including the i nterpretation and application of a
statute. Id . “A trial court commits legal error when it incorrectly choos es, interprets, or applies the law.” Id . This Court reviews a trial c ourt’s factual findings in apply ing the factors set forth in MCL 722.31 under the great weight of the evidence standard. Gagnon v Glowacki , 295 Mich App 557, 565; 815 NW2d 141 (2012). “ ‘Under this standard, we may not substitute our judgment on questions of fact unless the facts clearly preponde rate in the opposite direction.’ ” Id . quoting McKimmy v Melling , 291 Mich App 577, 581; 805 NW2d 615 (2011).

1 Melissa L Flick v Justin D Marsh , unpublished order of the Court of Appeals, entered July 28, 2015 (Docket No. 327679).-2- Plaintiff moved the trial court to change the child’s domicile from Midland, Michigan to Boston, Massachusetts after defendant would not consent. At a hearing on the motion, the court heard testimony from plaintiff and her husband, and defendant a nd his wife. Plaintiff and her husband testified to t heir relationships with the child and the improvement the move would make on the child and plaintiff’s life. Defendant and his wife test ified to their relationships with the child and the strain the move would inflict on defendant’s rela tionship with the child. After consideration of the factors enumerated in MCL 722.31, the cour t granted plaintiff’s motion. Defendant argues that the trial c ourt abused its discretion in granting plaintiff’s motion. We disagree.

When a parent attempts to change the domicile of a child to a location that is over 100 miles away or to another state, r egardless of the distance invo lved, MCL 722.31 is implicated. Gagnon , 295 Mich App at 566. MCL 722.31 provides, in pertinent part, as follows:

(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 paren t of a child whose custody is governed by court order shall not change a legal r esidence of the child to a loca tion that is more than 100 miles from the child’s legal r esidence at the time of the c ommencement of the action in which the order is issued.

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(4) Before permitting a legal residence change otherwise restr icted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in t he court’s deliberations:

(a) Whether the legal residence change has the capacity to imp rove the quality of life for both the ch ild and the relocating parent.

(b) The degree to which each parent has complied with, and uti lized his or her time under, a court order gove rning parenting time with the child, and whether the parent’s plan to change the child’s legal residence is insp ired by that parent’s desire to defeat or frustrate t he parenting time schedule.

(c) The degree to which the court is satisfied that, if the co urt permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child a nd each parent; and whether eac h parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residenc e change is motivated by a desire to secure a financial advantage with resp ect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.-3- “The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that the change is warranted.” McKimmy , 291 Mich App at 582.

Defendant argues that the trial court’s factual findings with respect to factors (a), (b), and (c) were against the great weight of the evidence. This Court’ s review focuses on whether the trial court’s findings are “ ‘so contrary to the great weight o f the evidence as to disclose an unwarranted finding, or whether t he verdict is so plainly a mis carriage of justice as to call for a new trial . . . .’ ” Fletcher v Fletcher , 447 Mich 871, 878; 526 NW2d 889 (1994) quoting Murchie v Standard Oil Co , 355 Mich 550, 558; 94 NW2d 799 (1959). This Court “should no t substitute its judgment on questions of fact unless they ‘clear ly preponderate in the opposite direction.’ ” Id

. With respect to factor (a), the court concluded that the chang e of domicile would improve the quality of life for both the child and plaintiff. Plaintif f’s husband testified that he would earn over $100,000 with his new employmen t in Massachusetts. The tr ial court found credible plaintiff’s and her husband’s testimony as to how that increase in income would benefit plaintiff and the child. The trial court specifically noted the improved potential for plaintiff’s employment, the potential for a superior education for the chil d, and the potential to improve plaintiff’s and the child’s liv ing situation. We defer to thos e credibility determinations, Kessler v Kessler , 295 Mich App 54, 64; 811 NW2d 39 (2011), and conclude that the trial court’s factual findings with respect to factor ( a) were not against the great weight of the evidence.

With respect to factor (b), whether the relocation was inspire d by the relocating parent’s desire to frustrate parenting time, the trial court found that there was no evidence to support such a conclusion. Defendant argues that this finding was against t he great weight of the evidence based on his and his wife’s testimony that plaintiff has previo usly refused parenting time and was attempting to replace defendant with her new husband as the child’s father. However, while that is an accurate summary of defendant’s and his wife’s testi mony, it is also true that plaintiff allowed defendant to exercise an additional week of parenting t ime outside of what the divorce judgment required. Plaintiff also expressly testified that rel ocating was not inspired by a desire to defeat defendant’s parenting time. The trial court found pl aintiff’s and her husband’s testimony more credible, and, again, that is a determination th at we defer to, Kessler , 295 Mich App at 64, and conclude that the trial court’s factual findings with respect to factor (b) were not against the great weight of the evidence.

The same is true with respect to factor (c), whether there is a realistic opportunity for the non-relocating parent to preserve and foster the parental relat ionship that was previously enjoyed. The trial court found that such a relationship could “be preserved with a visitation schedule and Skype or video communication.” Defendant contends that this finding was against the great weight of the evidence because such a substantial dec rease in parenting time would prevent a realistic opportunity t o preserve and foster a relati onship with the child. While it certainly appears that defendant’s parenting time is reduced by the new parenting-time schedule, the inquiry under factor (c) is not whether the new parenting s chedule is equivalent to the old; rather, it is “whether the proposed parenting-time schedule pro vides ‘a realistic opportunity to preserve and foster the parental relationship previously enjoye d’ by the nonrelocating parent.” McKimmy , 291 Mich App at 584 (cita tion omitted); see also Brown v Loveman , 260 Mich App 576, 603; 680 NW2d 432 (2004). While defendant’s parenting tim e is not equivalent, he-4- nevertheless maintains a realistic opportunity to preserve and foster a relationship with parenting time during summer, winter, and spring breaks, as well as the o pportunity to communicate with the child twice per week via webcam or telephone. Thus, we con clude that the trial court’s factual findings with respect to f actor (c) were n ot against th e great weight of the evidence.

Given our conclusion that the trial court’s factual findings w ith respect to the factors set forth in MCL 722.31 were not against the great weight of the ev idence, we also conclude that the court did not abuse its discreti on in granting plaintiff’s moti on to change the child’s domicile.

For the same reason, we need not address defendant’s mootness argument. We also decline “to impose sanctions ” as requested by plaintiff.

Affirmed.

/s/ Henry William Saad /s/ Cynthia Diane Stephens /s/ Colleen A. O'Brien