Atchison v. Atchison

• Decision Date: 01 July 2003
• Docket Number: Docket No. 243503.
• Citation: 256 Mich. App. 531,664 N.W.2d 249
• Parties: Dennis ATCHISON, Plaintiff-Appellant, v. Teresa L. ATCHISON, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

664 N.W.2d 249

256 Mich. App. 531

Dennis ATCHISON, Plaintiff-Appellant, v. Teresa L. ATCHISON, Defendant-Appellee.

Docket No. 243503.

Court of Appeals of Michigan.

Submitted March 4, 2003, at Detroit.

Decided May 13, 2003, at 9:05 a.m.

Released for Publication July 1, 2003.

Puzzuoli, Hribar, Iafrate, Majerowicz, Gaber, Seay, Jansen & Kohler (by Wendy A. Jansen), Clinton Township, for the plaintiff.

Rini and Rini (by James W. Rini), Clinton Township, for the defendant.

Before: HOEKSTRA, P.J., and SMOLENSKI and FORT HOOD, JJ.

PER CURIAM.

Plaintiff Dennis Atchison appeals as of right from the trial court's order denying his petition for change of custody. We affirm.

The parties were married in June 1985, and resided in Michigan. A daughter was born in 1988, and a son was born in 1992. In 1994, defendant Teresa L. Atchison moved with the two children to Toronto to care for her terminally ill father. After her father's death, defendant and the children continued to live in Ontario, Canada. On January 2, 1998, plaintiff filed a complaint for divorce. Defendant filed an answer to the complaint and her own countercomplaint for divorce. In these pleadings, defendant alleged that proceedings regarding physical custody of the children were pending in an Ontario court. On September 1, 1998, the trial court entered a consent judgment of divorce by withdrawal. The judgment of divorce divided the parties' assets and set forth the payment of child support. The child-support provision of the judgment of divorce provided:

IT IS FURTHER ORDERED AND ADJUDGED that the Plaintiff shall pay through the office of the Macomb County Friend of the Court the sum of Two Hundred Thirty One ($231.00) dollars per week for the support and child care of the parties two (2) minor children commencing upon entry of this Judgment and until said children attains the age of eighteen (18) years, or beyond if said child is regularly attending high school with a reasonable expectation of completing sufficient credits to graduate from high school while residing on a full time basis with the payee of support or at an institution, but in no case after each child reaches nineteen (19) years and six (6) months of age or until further order of this court.

While the payment of child support was through the office of the Macomb County friend of the court, the judgment of divorce contained the following provision regarding child custody:

IT IS FURTHER ORDERED AND ADJUDGED that custody and visitation of the minor children shall be awarded pursuant to the Order of the Ontario Court Provincial Division Case # D84/98-A-A1 entered on February 9, 1998 a copy of which is attached hereto and made a part hereof and marked Exhibit A, and the Ontario Court shall retain jurisdiction with respect to the issue of custody and visitation.

The order of the Ontario Court Provincial Division provided, in relevant part:

1. The parties shall have joint custody of the children of the marriage....

2. The primary residence of the children shall be with the Applicant [defendant], in the Province of Ontario, the Respondent husband [plaintiff] having acknowledged and agreed that the children have habitually resided in the Province of Ontario since April, 1994, and that the children will retain the

Province of Ontario as their domicile, and the parties having further agreed that should any issues respecting custody or access arise in future, those issues will be heard and determined by the Ontario Court.

The parties formally modified the child-support payments by court order to account for "temporary" placements of the minor daughter with plaintiff between September 2000 and September 2001. In July 2002, plaintiff petitioned for change of custody with respect to the minor daughter. Plaintiff alleged that the temporary placements of the minor daughter in his custody had, in effect, resulted in a change of domicile and a court order would merely reduce the current custodial situation to writing. In response, defendant alleged that the trial court lacked jurisdiction in light of the divorce judgment's provision that custody issues were to be determined by the Ontario court. Initially, the trial court held that it would confer with the judge in Toronto regarding jurisdiction. At a subsequent hearing, the trial court was advised that a consultation with the Ontario court would not occur without the filing of a formal petition in the Ontario court. Plaintiff alleged that a petition did not need to be filed in Ontario because Michigan had become the home state on the basis of the minor daughter's residence in this state for at least six months. The trial court denied the petition for change of custody, declining to exercise jurisdiction in light of the terms of the judgment of divorce.

Plaintiff alleges that the trial court committed clear legal error by refusing to accept jurisdiction of the custody petition involving the minor daughter in light of her two-year residency in this state. We disagree. Whether a trial court has subject-matter jurisdiction presents a question of law that this Court reviews de novo. Brooks v. Mammo, 254 Mich.App. 486, 492, 657 N.W.2d 793 (2002); Young v. Punturo, 252 Mich.App. 47, 54, 651 N.W.2d 122 (2002). This issue also involves interpretation of the Uniform Child Custody Jurisdiction and Enforcement Act, (UCCJEA), M.C.L. § 722.1101 et seq. Issues of statutory construction present questions of law that are reviewed de novo. Cruz v. State Farm Mut. Automobile Ins. Co., 466 Mich. 588, 594, 648 N.W.2d 591 (2002). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. In re MCI Telecom Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). This determination is accomplished by examining the plain language of the statute itself. Id. If the statutory language is unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed and further judicial construction is neither permitted nor required. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). Under the plain-meaning rule, courts must give the ordinary and accepted meaning to the mandatory word "shall" and the permissive word "may" unless to do so would frustrate the legislative intent as evidenced by other statutory language or by reading the statute as a whole. Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612, 321 N.W.2d 668 (1982). Applying the plain language of the UCCJEA to this case, we conclude that the trial court properly declined jurisdiction. DiBenedetto, supra.

Michigan adopted the Uniform Child Custody Jurisdiction Act (UCCJA) to provide standards to determine: (1) whether a state could take jurisdiction of a child-custody dispute, (2) whether other states were prohibited from subsequently taking jurisdiction, (3) enforcement of a custody decision, and (4) when modification of a child-custody decision was permitted. In re Clausen, 442 Mich. 648, 662-663, 502 N.W.2d 649 (1993). Despite the widespread adoption of the UCCJA, differing interpretations resulted in uncertainty regarding the enforcement of custody decisions. In response, Congress adopted the Parental Kidnapping Prevention Act (PKPA), 28 USC 1738A, to impose a duty on states to enforce a child-custody determination entered by a court in a sister state if the determination was consistent with the UCCJA. Id. at 664, 502 N.W.2d 649. However, inconsistency in interpretation of the UCCJA and the overlapping technicalities of the PKPA resulted in a loss of uniformity among the states. Consequently, in 1997, the National Conference of Commissioners on Uniform State Laws (NCCUSL) drafted and approved the UCCJEA to rectify thirty years of inconsistent case law and revise child-custody jurisdiction in light of overlapping federal enactments, including the Uniform Interstate Family Support Act.¹ The UCCJEA was designed to: (1) rectify jurisdictional issues by prioritizing home-state jurisdiction, (2) clarify emergency jurisdictional issues to address time limitations and domestic-violence issues, (3) clarify the exclusive continuing jurisdiction for the state that entered the child-custody decree, (4) specify the type of custody proceedings that are governed by the act, (5) eliminate the term "best interests" to the extent it invited a substantive analysis into jurisdictional considerations, and (6) provide a cost-effective and swift remedy in custody determinations.² The UCCJEA became effective in Michigan on April 1, 2002.³ MCL 722.1101. Plaintiff acknowledged the passage of the UCCJEA and does not dispute its application to this petition.

A foreign country is treated as a state of the United States when applying the general and jurisdictional provisions of the UCCJEA. MCL 722.1105(1).⁴ Once a court of another state has rendered a child-custody determination, a Michigan court shall not modify this order, M.C.L. § 722.1203, unless certain criteria are established. MCL 722.1203 provides:

Except as otherwise provided in section 204 [MCL 722.1204], a court of this state shall not modify a child-custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial child-custody determination under section 201(1)(a) or (b) [MCL 722.1201] and either of the following applies:

(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 202 [MCL 722.1202] or that a court of this state would be a more convenient forum under section 207 [MCL 722.1207].

(b) A court of this state or a court of the other state determines that neither the child, nor a parent of the child, nor a person acting as a parent presently resides in the other state.

Thus, to modify a child-custody determination from another state, the Michigan court must have...