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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UNPUBLISHED 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 Stephens and O’Brien, JJ. 

PER CURIAM. 

 Defendant appeals by leave granted1

 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 abuse of discretion exists when the 

result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a 

defiance of judgment, or the exercise of passion or bias.” Sulaica v Rometty, 308 Mich App 568, 

577; 866 NW2d 838 (2014) (internal citation omitted). Similarly, in this context, this Court 

reviews for clear legal error questions of law, including the interpretation and application of a 

statute. Id. “A trial court commits legal error when it incorrectly chooses, interprets, or applies 

the law.” Id. This Court reviews a trial court’s factual findings in applying 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 preponderate 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1 Melissa L Flick v Justin D Marsh, unpublished order of the Court of Appeals, entered July 28, 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). 
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 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 and his wife. Plaintiff and her 

husband testified to their relationships with the child and the improvement the move would make 

on the child and plaintiff’s life. Defendant and his wife testified to their relationships with the 

child and the strain the move would inflict on defendant’s relationship with the child. After 

consideration of the factors enumerated in MCL 722.31, the court granted plaintiff’s motion. 

Defendant argues that the trial court 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, regardless of the distance involved, 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 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. 

* * * 

 (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: 

 (a) Whether the legal residence change has the capacity to improve the 

quality of life for both the child and the relocating parent. 

 (b) The degree to which each parent has complied with, and utilized his or 

her time under, a court order governing parenting time with the child, and whether 

the parent’s plan to change the child’s legal residence is inspired by that parent’s 

desire to defeat or frustrate the parenting time schedule. 

 (c) The degree to which the court is satisfied that, if the court 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 and each parent; and whether each parent is likely 

to comply with the modification. 

 (d) The extent to which the parent opposing the legal residence change is 

motivated by a desire to secure a financial advantage with respect to a support 

obligation. 

 (e) Domestic violence, regardless of whether the violence was directed 

against or witnessed by the child. 
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“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 of the evidence as to disclose an 

unwarranted finding, or whether the verdict is so plainly a miscarriage 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 not 

substitute its judgment on questions of fact unless they ‘clearly preponderate in the opposite 

direction.’ ” Id. 

 With respect to factor (a), the court concluded that the change of domicile would improve 

the quality of life for both the child and plaintiff. Plaintiff’s husband testified that he would earn 

over $100,000 with his new employment in Massachusetts. The trial 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 child, and the potential to improve 

plaintiff’s and the child’s living situation. We defer to those 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 inspired 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 the great weight of the evidence 

based on his and his wife’s testimony that plaintiff has previously 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 testimony, it is also true that plaintiff 

allowed defendant to exercise an additional week of parenting time outside of what the divorce 

judgment required. Plaintiff also expressly testified that relocating was not inspired by a desire 

to defeat defendant’s parenting time. The trial court found plaintiff’s and her husband’s 

testimony more credible, and, again, that is a determination that 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 relationship 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 decrease in parenting time would 

prevent a realistic opportunity to preserve and foster a relationship 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 schedule is equivalent to the old; 

rather, it is “whether the proposed parenting-time schedule provides ‘a realistic opportunity to 

preserve and foster the parental relationship previously enjoyed’ by the nonrelocating parent.” 

McKimmy, 291 Mich App at 584 (citation omitted); see also Brown v Loveman, 260 Mich App 

576, 603; 680 NW2d 432 (2004). While defendant’s parenting time is not equivalent, he 
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nevertheless maintains a realistic opportunity to preserve and foster a relationship with parenting 

time during summer, winter, and spring breaks, as well as the opportunity to communicate with 

the child twice per week via webcam or telephone. Thus, we conclude that the trial court’s 

factual findings with respect to factor (c) were not against the great weight of the evidence. 

 Given our conclusion that the trial court’s factual findings with respect to the factors set 

forth in MCL 722.31 were not against the great weight of the evidence, we also conclude that the 

court did not abuse its discretion in granting plaintiff’s motion 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