Supreme Court’s Recent Ruling as to Domicile, Custody Orders for Minors

August 19, 2013

A Person Can Have Only One Domicile for Purposes of MCL 500.3114(1) & 3115(2); and Custody Orders Determine a Child's Domicile

"Dual" Domicile Is Dead

Grange v. Lawrence and the Creation of Dual Domicile

In 2011, the Michigan Court of Appeals in Grange v. Lawrence determined that a child of divorced parents may have dual domiciles despite a custody order from the court establishing primary/physical custody to one parent. "[T]hat order does not change the fact that evidence showed [the child] actually resided with both parents." [1] The Appellate Court relied on language in a principle residency case Workman v. DAIIE, which stated "the terms 'domicile' and 'residence' are 'legally synonymous' and nothing in MCL 500.3114(1) . . . limits a minor child of divorced parents to one domicile or defines domicile as a 'principle residence.'" [2]

The term residence is a much broader definition which under the Workman and Dairyland factors could then be successfully argued to establish dual residency and, according to this opinion, dual domiciles. This exposed insurers in higher priority (under MCL 500.3114(1)) or equal priority (under MCL 500.3115(2)) to instances where they would have to pay benefits for their insured's child, who primarily lived with another parent but would visit their insured every other weekend so long as the Workman and Dairyland [3] factors were met (such as child keeping belongings at their residence, having their own room, receiving financial support, etc).

Supreme Court Overrules Grange

In a recent opinion by the Michigan Supreme Court [4], the Court rejects the Appellate Court's analysis that a minor child of divorced parents can have dual domiciles. The Court was clear that in no instance may an individual have dual domiciles as the common law definition of domicile is "the place where a person has his true, fixed, permanent home, and principle establishment, and to which, whenever he is absent, he has the intention of returning."

The Court relied on the legislature's use of the legal term of art "domiciled" within MCL 500.3114(1) that has a specific meaning unlike the term "residence" which the Appellate Court relied on to establish dual domicile. The Supreme Court dismissed the argument that the language used in Workman that domicile and residence are legally synonymous by simply stating the sentence was read out of context with the entire opinion and case precedent. The Supreme Court ultimately held:

"Accordingly, consistent with the traditional common-law principle that a person may have only one domicile at a given point in time, we hold that a child, whose parents are divorced and who has more than one legal residence, may have only a single domicile at any point in time that continues until the child acquires a different one."

Thus, a person can only be domiciled at one location for purposes of a higher priority insurer pursuant to MCL 500.3114(1) and an equal priority insurer pursuant to MCL 500.3115(2).

A Minor Child of Divorced Parents Domicile Is Determined by the Court's Custody Order

The Supreme Court provided guidance to insurers who are undertaking priority investigations involving minor children. When attempting to establish where a minor child of divorced parents is domiciled, look to the custody order entered by the court; intent of the parents or minor child does not matter.

"Therefore, courts presiding over an insurance coverage dispute involving the minor child of divorced parents must treat a custody order as conclusive evidence of a child's domicile. Where a court order sets a child's custody or domicile by operation of law, the factual circumstances or the parents' or child's intentions are irrelevant to the domicile determination. Rather, the appropriate analysis is focused on the terms of the custody order."

In a companion case, ACIA v. State Farm [5] , the Supreme Court ordered that a 16-year-old girl who was involved in a 2007 motor vehicle accident and was residing with her mother and even going to high school in Michigan was actually domiciled with her father in Tennessee pursuant to a 1996 Tennessee custody order. It is not until the child turns eighteen (18) that intent of the child can be a factor in determining an individual's domicile.

Conclusion

When investigating higher or possibly equal priority insurance of a minor child with divorced parents, attempt and obtain a copy of the custody order from the parents or the court as soon as possible. That Order will be conclusive as to the child's domicile . Just because the child is residing with one parent or family member does not mean that this is the location where she is domiciled for purposes of the Michigan No-Fault Act.

The question is less clear if the parents are separated but not divorced. The Court only speaks to establish that a minor child will have the same domicile as his/her parents. In his concurrence, Justice Zahra opines that we continue to use the Dairyland factors to establish a child's domicile and points out other factors to consider as well.

"While Dairyland involved a child that had reached the age of majority, I find these factors to be similarly relevant for determining the intent of a minor child's parents regarding the child's domicile because they focus on objective indicators of the intent to have the child remain permanently in a given home. Additionally, there are other relevant factors that are unique to the context of minor children whose parents share joint custody: (1) where the child actually spends the majority of his or her time, and (2) where the child actually sleeps the majority of the nights of the week."

If you have any questions regarding Michigan's new laws or their impact on the No-Fault please feel free to contact any of the attorneys of the firm.

Sincerely,

/s/ Kevin P. Wirth

And the attorneys of Anselmi Mierzejewski Ruth & Sowle P.C.


[1] Grange Ins. Co. of Michigan v. Lawrence, 296 Mich App 319, 324 (2012).

[2] Workman v. DAIIE, 404 Mich. 477, 495 (1979).

[3] Dairyland Ins Co v Auto-Owners Ins Co, 123 Mich App 675, 682; 333 NW2d 322
(1983).

[4] Grange Insurance Company of Michigan v. Lawrence, Docket No. 145206. Argued April 11, 2013 (Calendar No. 1). Decided July 29, 2013.

[5] ACIA v. State Farm, Docket No. 143808. Argued April 11, 2013 (Calendar No. 1). Decided July 29, 2013.