D'Allessandro v. Ely
| Decision Date | 31 January 1989 |
| Docket Number | Docket No. 101610 |
| Citation | 173 Mich.App. 788,434 N.W.2d 662 |
| Parties | Domenick D'ALLESSANDRO and Domenica D'Allessandro, Plaintiffs-Appellants, v. Daniel ELY and Nancy Ely, Defendants-Appellees. 173 Mich.App. 788, 434 N.W.2d 662 |
| Court | Court of Appeal of Michigan — District of US |
[173 MICHAPP 790] Barnard, Smith & Burness by Robert J. Barnard, Jr., Kalamazoo, for plaintiffs-appellants.
Neal, Hanson, Hanson & Hamlin by Ward S. Hamlin, Jr., South Haven, for defendants-appellees.
Harold Schuitmaker, Paw Paw, Guardian ad litem, for Nichole Ely and Michael Ely.
Before WEAVER, P.J., and DOCTOROFF and SAPALA, * JJ.
Plaintiffs appeal as of right from an order by the Cass Circuit Court dismissing plaintiffs' verified complaint for grandparent visitation[173 MICHAPP 791] rights. The circuit court held that the Van Buren County Probate Court and the Cass Circuit Court have concurrent jurisdiction and that the Van Buren County Probate Court had properly preempted the Cass Circuit Court's jurisdiction regarding the issue of grandparent visitation. We hold that the trial court erred in dismissing plaintiffs' complaint. We reverse and remand for a hearing on plaintiffs' complaint for grandparent visitation rights pursuant to M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b).
In December, 1984, Rebecca Ely and her husband, Robert Ely, were tragically killed in a train-automobile accident. Surviving that accident were the Ely's two minor children, Nichole Ely, born March 25, 1981, and Michael Ely, born January 2, 1983.
Guardianship proceedings were instituted in Van Buren County Probate Court. By court order entered on July 15, 1985, Daniel and Nancy Ely, brother and sister-in-law of the deceased father, were appointed guardians of Nichole and Michael. Also included in that order was the right to visitation with the minor children by the D'Allessandro family, plaintiffs, the maternal grandparents. No objection has been made to the appointment of Daniel and Nancy Ely as guardians of the minor children. On July 16, 1986, the Van Buren County Probate Court entered an order amending the original order and suspending plaintiffs' visitation rights, without a hearing, until plaintiffs attended counseling sessions.
On November 17, 1986, plaintiffs filed a complaint in the Cass Circuit Court under the grandparent visitation statute, M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b). The children were residents of Cass County at that time.
The guardian ad litem for the minor children, [173 MICHAPP 792] appointed in the guardianship proceedings, filed a motion to intervene in the circuit court action and a motion for a change of venue or dismissal. Defendants also filed motions alternatively seeking dismissal on the basis of the prior jurisdiction of the Van Buren County Probate Court or a change of venue.
A hearing was held before a Cass County Friend of the Court referee on December 10, 1986. The referee recommended that plaintiffs' complaint be dismissed, finding that the matter was properly within the jurisdiction of the Van Buren County Probate Court which had already entered two orders dealing with visitation between plaintiffs and the minor children.
On December 18, 1986, plaintiffs filed a motion in Cass Circuit Court pursuant to M.C.L. Sec. 552.507(5); M.S.A. Sec. 25.176(7)(5) for de novo review on the jurisdiction issue.
On February 23, 1987, the de novo hearing on the issue of jurisdiction was held before the Cass Circuit Court. The circuit court entered its opinion on April 2, 1987. The circuit court determined that the Van Buren County Probate Court and the Cass Circuit Court had concurrent jurisdiction on the matter of grandparent visitation. The circuit court found that there was a pending custody dispute in the probate court because it had appointed defendants as guardians and had entered visitation orders. Thus, the Van Buren County Probate Court had properly preempted the Cass Circuit Court's jurisdiction on the question of grandparent visitation. The circuit court stated that the only reason that plaintiffs brought this action in Cass County was because plaintiffs received an unfavorable ruling in the Van Buren County Probate Court.
Parenthetically, it should be added that during [173 MICHAPP 793] the pendency of this case in the circuit court, proceedings were continuing in the probate court. On February 20, 1987, following a hearing on a petition by the guardian ad litem and a counter-petition by plaintiffs, the Van Buren County Probate Court entered an order which stated that, inter alia, jurisdiction with the Van Buren County Probate Court was proper, the probate court has inherent powers to grant or deny visitation, the previous order fixing visitation with plaintiffs would not be altered unless the conditions set forth therein were satisfied, and parties seeking visitation with the minor children may, upon filing a petition, be heard at any time before that court.
In October, 1987, another hearing was held in the Van Buren County Probate Court. Plaintiffs had attended counseling sessions with the minor children as ordered by the probate court. In November, 1987, the probate court entered an amended order for grandparent visitation, restoring plaintiffs' visitation privileges.
Plaintiffs' direct appeal is from the opinion and order of the circuit court which dismissed plaintiffs' complaint for grandparent visitation rights, holding that the probate court had preempted jurisdiction. All orders and judgments of the circuit court under the Child Custody Act shall be affirmed on appeal unless the trial court made findings of fact against the great weight of the evidence or committed a palpable abuse of discretion or a clear legal error on a major issue. M.C.L. Sec. 722.28; M.S.A. Sec. 25.312(8).
The circuit court based its dismissal of plaintiffs' complaint on its finding that, according to the facts of the case, the Cass Circuit Court and the Van Buren County Probate Court had concurrent jurisdiction to determine grandparent visitation. The circuit court then held that because the Van [173 MICHAPP 794] Buren County Probate Court had already asserted its jurisdiction and had entered orders concerning plaintiffs' visitation, it had properly preempted the circuit court's jurisdiction. In essence, the circuit court found that the probate court had jurisdiction to enter orders pertaining to visitation. This was clear legal error.
We hold that the probate court does not have jurisdiction to enter an order concerning visitation in guardianship matters. Although created by the Constitution, the probate court is a court of limited jurisdiction, deriving all of its power from statutes. Teasel v. Dep't of Mental Health, 419 Mich. 390, 417, 355 N.W.2d 75 (1984); Const. 1963, art. 6, Sec. 15; M.C.L. Sec. 700.1 et seq., M.S.A. Sec. 27.5001 et seq. Neither the circuit court nor the appellate courts can expand the jurisdiction of the probate court without legislative consent. In re Kasuba Estate, 401 Mich. 560, 566, 258 N.W.2d 731 (1977).
The probate court has jurisdiction over guardianship proceedings. M.C.L. Sec. 700.401 et seq.; M.S.A. Sec. 27.5401 et seq. Section 424, M.C.L. Sec. 700.424; M.S.A. Sec. 27.5424, reads in part:
"The court may appoint a guardian for an unmarried minor if the parental rights of custody are terminated or suspended by circumstances or prior court order."
Section 431(1), M.C.L. Sec. 700.431(1); M.S.A. Sec. 27.5431(1), reads in part:
"A guardian of a minor has the powers and responsibilities of a parent who is not deprived of custody of the parent's minor and unemanicipated child...."
Thus the probate court appoints the guardian. The minor child becomes the ward of the guardian. [173 MICHAPP 795] The guardian, not the probate court, has the parental power which includes decisions over visitation. Therefore, the probate court does not have jurisdiction to enter an order concerning visitation in guardianship matters. 1
Grandparent visitation rights are expressly created by statute as part of the Child Custody Act, M.C.L. Sec. 722.27b; M.S.A. Sec. 25.312(7b). The Child Custody Act falls under the jurisdiction of the circuit court. M.C.L. Sec. 722.27b(1); M.S.A. Sec. 25.312(7b)(1) states:
Subsection (3) of Sec. 7b requires that a grandparent seeking a grandchild visitation order commence an action for grandchild visitation by complaint or complaint and motion for an order to show cause in the circuit court in the county in which the grandchild resides. A hearing shall be held if a party so requests. Plaintiffs correctly [173 MICHAPP 796] complied with the provisions of this subsection and have a right to their properly requested hearing.
The circuit court again committed legal error when it based its finding of concurrent jurisdiction, in part, on its determination that there was a "child custody dispute" pending in the Van Buren County Probate Court as contemplated and defined under M.C.L. Sec. 722.27b(2)(b); M.S.A. Sec. 25.312(7b)(2)(b). The circuit court made this determination by its interpretation of Sec. 7b(2)(b) which states in pertinent part:
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