Bielawski v. Bielawski , 137 Mich. App. 587 ( 1984 )

137 Mich. App. 587 (1984) 358 N.W.2d 383

BIELAWSKI
v.
BIELAWSKI

Docket No. 77313.

Michigan Court of Appeals.

Decided September 17, 1984.

Van Til, Kasiborski & Ronayne (by John J. Ronayne, III, and Kenneth A. Flaska), for plaintiff.

Sherrie Bielawski, in propria persona.

Before: MacKENZIE, P.J., and BEASLEY and J.R. KIRWAN,^[*] JJ.

J.R. KIRWAN, J.

This is an appeal as of right from the trial court's decision to grant defendant mother's motion to amend the decree of divorce so as to allow the mother to move her residence with the minor child from Michigan to Texas.

Plaintiff Michael Bielawski and defendant Sherrie Bielawski were divorced on March 26, 1981. The parties were granted joint legal custody of their daughter, Ann, with physical custody awarded to the mother. Also contained in the judgment of divorce was a provision that the child could not be removed from the State of Michigan without prior approval of the court.

On March 14, 1984, defendant filed her motion for modification of the judgment of divorce requesting that she be allowed to remove the child from Michigan. According to the motion, she had been formally offered a job in Dallas, Texas, as a project manager with a consulting firm and had made an application to rent an apartment in Dallas which would provide adequate living arrangements for her and her child. At the hearing on the motion she argued that the move to Texas would substantially improve her financial security, that the move was not an attempt to deprive plaintiff of visitation rights, and that she was willing to pay expenses of transporting the child to Michigan to assure plaintiff his visitation rights.

Plaintiff claimed that defendant had made previous threats to leave the state and that the present motion was simply another attempt to prevent the father from having a meaningful relationship with his daughter. He also claimed that the motion was not made in good faith and that the move would not be in the best interests of the child. (Plaintiff's further claim that the child had missed a great deal of school was answered by defendant's counsel who indicated that the child had been withdrawn from school in anticipation of the move to Texas and that the child otherwise had missed very little school.) In order to support these accusations, plaintiff's counsel requested that resolution of the matter be delayed so that he could conduct discovery. The trial court, however, refused the request, stating that because defendant's offer of a job in Texas was to expire within a few days, an emergency situation existed requiring an immediate decision. The court then granted defendant's motion to remove the child from the state.

I

There presently exists in this Court a split of authority as to whether the "best interest of the child factors" as set forth in § 3 of the Child Custody Act, MCL 722.21 et seq.; MSA 25.312(1) et seq., must be considered before deciding a motion to allow the removal of a minor child from the state. Two panels of this Court, Hutchins v Hutchins, 84 Mich. App. 236; 269 NW2d 539 (1978), and Watters v Watters, 112 Mich. App. 1, 13; 314 NW2d 778 (1981), have determined that the best interest of the child test is controlling in deciding motions for removal. Two other panels, however, Henry v Henry, 119 Mich. App. 319; 326 NW2d 497 (1982), and Scott v Scott, 124 Mich. App. 448; 335 NW2d 68 (1983), have determined that since a motion for removal does not involve a custody determination, a review of the best interest of the child factors as set forth in the Child Custody Act is inappropriate.

It is this Court's view that the more recent cases, Henry, supra, and Scott, supra, present the better view. Consideration of the "custody factors" ordinarily neither leads nor reasonably relates to a resolution of those issues that arise when a custodial parent seeks to remove a child to a place that is geographically distant from where the noncustodial parent lives. When such motions are made, the underlying concern of the noncustodial parent is almost always the effect that such move will have upon the relationship of the child and the noncustodial parent, and visitation rights. A consideration of the "custody factors" is not helpful in searching for resolutions to these problems. We believe that the interests of all parties are better served in resolving such motions by following the criteria enunciated in Watters, supra, pp 12-13, the Court quoted from D'Onofrio v D'Onofrio, 144 NJ Super 200, 206-207; 365 A2d 27 (1976):

"Where * * * the custodial parent can demonstrate that a real advantage to herself and the children will result from their removing their residence to a place so geographically distant as to render weekly visitation impossible, then the court must weigh a number of determinative factors in order to accommodate the compelling interests of all of the family members. It should consider the prospective advantages of the move in terms of its likely capacity for improving the general quality of life for both the custodial parent and the children. It must evaluate the integrity of the motives of the custodial parent in seeking the move in order to determine whether the removal is inspired primarily by the desire to defeat or frustrate visitation by the noncustodial parent, and whether the custodial parent is likely to comply with substitute visitation orders when she is no longer subject to the jurisdiction of the courts of this state. It must likewise take into account the integrity of the noncustodial parent's motives in resisting the removal and consider the extent to which, if at all, the opposition is intended to secure a financial advantage in respect of continuing support obligations. Finally, the court must be 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."

The trial court did not, therefore, err in not considering the custody factors in resolving this motion.

II

Did the trial court abuse its discretion in granting defendant's motion to remove the child from the jurisdiction of the court without conducting an evidentiary hearing? We do not believe in every instance that a trial court is required to conduct an evidentiary hearing in considering a motion to remove a child from the jurisdiction of the court. A trial court should have discretion in making this determination and such determination should not be disturbed unless an abuse of discretion is shown.

In deciding whether or not a trial court should hold an evidentiary hearing, the court should first determine whether there exist contested factual questions that must be resolved before a court can make an informed decision on whether or not to grant the motion. In this instance, we do not believe that there were any meaningful contested factual questions that would require a hearing. It is essentially uncontested that a substantial economic advantage would accrue to the mother and child if the move is approved and that the living arrangements in Texas were adequate for the child. Further, the mother's present good faith was demonstrated by her willingness to pay expenses that would be incurred in returning the child to Michigan for visitation with the father, and there existed nothing on the record that would prevent the trial court from fashioning an appropriate visitation order that would protect the relationship between the father and the child and guarantee visitation rights. As the trial court was required to make an immediate decision because the job offer expired in a few days, we find no abuse of discretion in denying an evidentiary hearing in this matter.

III

Did the trial court abuse its discretion in granting the motion to remove the child to Texas? Applying the standards as set forth in D'Onofrio, supra, we find no abuse of discretion. The custodial parent demonstrated that there existed a real advantage to herself and the child by removing her residence from Michigan to Texas. The substantial increase in income from her employment in Texas will undoubtedly improve the mother-daughter family unit relationship as well as elevate the quality of their lives. Further, the trial court can construct a visitation order that will assure the father the opportunity of preserving and fostering the parental relationship. And finally, the granting of this motion does not prevent the plaintiff from later moving for a change of custody if he believes that he can show by clear and convincing evidence that the best interests of the child would be served by transferring custody from the mother to him.

For these reasons, the trial court did not err in granting defendant's motion for removal of the child to Texas.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.