Attard v. Adamczyk
| Decision Date | 24 April 1985 |
| Docket Number | Docket No. 77614 |
| Citation | 141 Mich.App. 246,367 N.W.2d 75 |
| Parties | Lillian H. ATTARD, Plaintiff-Appellant, v. Daniel J. ADAMCZYK, Defendant-Appellee. 141 Mich.App. 246, 367 N.W.2d 75 |
| Court | Court of Appeal of Michigan — District of US |
[141 MICHAPP 247] Herbert L. Kay, Southfield, for plaintiff-appellant.
Draugelis, Ashton, Scully and Haynes by Thomas J. Knatz, Plymouth, for defendant-appellee.
[141 MICHAPP 248] Before ALLEN, P.J., and J.H. GILLIS and GIOVAN, * JJ.
Plaintiff appeals as of right from the entry of a judgment granting defendant's motion for summary judgment for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1).
Pursuant to a judgment of the Macomb County Circuit Court, the marriage between plaintiff's daughter and the defendant was dissolved on September 27, 1976. Under the terms of the divorce judgment, defendant was awarded custody of the couple's two minor children, and specific visitation rights were granted to the plaintiff's daughter.
Plaintiff commenced this action in Oakland County, where the defendant now resides with his children, seeking an order granting the same specific visitation rights which were granted to her daughter under the terms of the divorce judgment. Plaintiff alleged that her daughter's employment required that she travel extensively outside the state, and as a result she has been unable to take full advantage of her specific visitation days. Plaintiff relied upon the so-called "Grandparent Visitation Act", M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b), to support her request for visitation rights. The circuit court, however, found the statute cited by plaintiff to be inapplicable to the facts of this case and thus granted defendant's motion for summary judgment. We agree and therefore affirm this aspect of the lower court's ruling.
A motion for summary judgment brought under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted is designed to test the legal sufficiency of the claim as determined from the pleadings alone. The factual allegations[141 MICHAPP 249] of the complaint are to be taken as true, along with any inferences or conclusions which may fairly be drawn therefrom. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Borsuk v. Wheeler, 133 Mich.App. 403, 406-407, 349 N.W.2d 522 (1984).
The statute here at issue, M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b), provides a means by which a grandparent may seek an order of visitation from the circuit court in the county in which the child resides. However, the circumstance under which such an order of visitation may be available is strictly limited. Section 27b(1) of the statute provides that a grandparent may seek an order of visitation "only if a child custody dispute with respect to that child is pending before the court." A "child custody dispute" is then defined under Sec. 27b(2) as a proceeding in which any of the following occurs:
"(a) The marriage of the child's parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.
"(b) Legal custody of the child is given to a party other than the child's parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized." M.C.L. Sec. 722.27b(2); M.S.A. Sec. 25.312(7b)(2).
It should be obvious that neither of the definitions of a child custody dispute set out in the statute are applicable in the instant case. The marriage of the plaintiff's daughter and defendant had been dissolved by the Macomb County Circuit Court as of September 27, [141 MICHAPP 250] 1976. Further, the children's father was given custody under the terms of the divorce judgment, thus rendering subsection (b) inapplicable. Since the language of the statute is clear and unambiguous, judicial construction is neither required nor permitted. Perry v. Sturdevant Manufacturing Co., 124 Mich.App. 11, 15, 333 N.W.2d 366 (1983). The trial court correctly granted defendant's motion for summary judgment.
Although not necessary for the resolution of this case, we wish to take this opportunity to express our concern over certain procedural and jurisdictional problems we perceive as arising from the provisions of M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b). Subsection (3) of this statute requires that an action for visitation must be brought in the circuit court of the county in which the grandchild resides. We believe that such a requirement will, in some cases, violate the traditional rule which grants to the trial judge who presided over a divorce action, or his successor, the continuing authority to oversee the parties' compliance with the terms of the divorce judgment. For example, M.C.L. Sec. 552.17a; M.S.A. Sec. 25.97(1) extends to the trial court having jurisdiction over the parties to a divorce the authority to direct an order of custody and support governing children of the marriage. Further, pursuant to M.C.L. Sec. 552.17; M.S.A. Sec. 25.97, the court also retains continuing authority to modify the provisions of a previously issued judgment of divorce. San Joaquin County, California v. Dewey, 105 Mich.App. 122, 128, 306 N.W.2d 418 (1981). Due to the special nature of divorce cases, we believe that requests for modifications in divorce decrees and child custody disputes are best heard and decided by the court already familiar with the facts and special circumstances of each case. To the extent that M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b) requires a different[141 MICHAPP 251] court to hear a request for an order of visitation, we consider the...
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