Fisher v. Belcher

• Decision Date: 15 December 2005
• Docket Number: Docket No. 263083.
• Citation: 713 N.W.2d 6,269 Mich. App. 247
• Parties: Krista FISHER, Plaintiff-Appellant, v. Shannon BELCHER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 6

713 N.W.2d 6

269 Mich. App. 247

Krista FISHER, Plaintiff-Appellant, v. Shannon BELCHER, Defendant-Appellee.

Docket No. 263083.

Court of Appeals of Michigan.

Submitted November 8, 2005, at Lansing.

Decided December 15, 2005, at 9:05 a.m.

Released for Publication March 2, 2006.

COPYRIGHT MATERIAL OMITTED

Legal Services of Northern Michigan, Inc. (by Steven Hornick), Gaylord, for the plaintiff.

Bloomquist & Associates, PLLC (by Todd H. Nye), Grayling, and Van Matre & Krueger, L.L.C. (by Robert V. Krueger), Mexico, MO, for the defendant.

Before: DONOFRIO, P.J., and ZAHRA and KIRSTEN FRANK KELLY, JJ.

DONOFRIO, P.J.

Plaintiff, Krista Fisher, appeals as of right an order of dismissal predicated on a finding that Michigan did not have jurisdiction to determine child custody and acknowledging that the child custody determination would proceed in Missouri, where defendant, Shannon Belcher, had previously filed a child custody proceeding. Because the trial court did not abuse its discretion when it elected not to hear oral argument before rendering a decision on jurisdiction, did not err when it dismissed the Michigan child custody proceeding after communication with the sister state's trial court pursuant to the relevant provision of the Uniform Child-Custody Jurisdiction and Enforcement Act, MCL 722.1206(2), and appropriately set aside its child custody order, we affirm.

I. Substantive Facts and Procedure

This appeal challenges a child custody jurisdictional determination involving Michigan and Missouri regarding a minor child, Emma Belcher, born April 30, 2004. Before Emma's birth, the parties resided together in Missouri, and they continued to reside together after her birth until plaintiff moved with Emma to Michigan on July 30, 2004. Since arriving in Michigan on August 1, 2004, plaintiff and Emma have continued to reside here. On September 23, 2004, plaintiff filed a complaint in Michigan for child support only pursuant to the Uniform Interstate Family Support Act (UIFSA), MCL 552.1101 et seq., against defendant. Plaintiff provided neither an affidavit of paternity nor an acknowledgement of paternity with her complaint. Also, plaintiff did not seek a determination of paternity, custody, or parenting time. Apparently, on October 11, 2004, defendant was served with plaintiff's child support complaint. On October 26, 2004, defendant filed a petition in Missouri to establish paternity of Emma and for custody conditioned on paternity. On November 1, 2004, defendant filed a special appearance and motion to dismiss plaintiff's child support complaint, arguing that Missouri had jurisdiction and that Michigan lacked personal jurisdiction.

On December 13, 2004, plaintiff filed a motion in Missouri to dismiss for lack of subject-matter jurisdiction, which motion was later denied. On January 14, 2005, plaintiff filed a petition in Michigan for temporary custody, parenting time, and child support. The petition included a supporting affidavit as required by the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., in which plaintiff acknowledged defendant's pending custody petition in Missouri. On February 2, 2005, defendant filed a motion to stay the Michigan proceeding pending the paternity test and the resolution of whether Missouri or Michigan had jurisdiction over the child custody determination. Defendant noted that he had filed a petition for custody in Missouri before plaintiff filed her January 14, 2005, petition. On February 4, 2005, the Friend of the Court filed a notice regarding plaintiff's petition for temporary custody, parenting time, and child support, and a referee hearing was scheduled for March 10, 2005. The notice provided that a party would waive the right to object and have a hearing before a judge if the party failed to appear at the hearing. The notice also stated that an order would be entered immediately following the hearing.

On March 8, 2005, the Missouri court conferred with the Michigan court regarding proper jurisdiction and stated that jurisdiction could not be determined at that time because additional information was needed. The Missouri court ordered the parties to file with that court, and the Michigan court, a list of witnesses and anticipated exhibits. Similarly, on March 10, 2005, the Michigan court ordered the parties to file with that court, and the Missouri court, a list of witnesses and anticipated exhibits. On March 16, 2005, the report of the referee's findings and recommendations was filed, which recommended that plaintiff be granted sole legal and physical custody of Emma, noting that defendant had failed to appear at the hearing. The Michigan court adopted the referee's findings and granted plaintiff custody on March 16, 2005. On March 18, 2005, plaintiff objected to the Michigan court's finding that she had filed her custody petition in January 2005. Plaintiff argued that the custody issue related back to her initial pleading for child support because the Family Support Act (FSA), MCL 552.451 et seq., provides for custody in specific instances.

On April 21, 2005, plaintiff filed a brief arguing that Michigan had jurisdiction and that Michigan was the more convenient forum. On April 27, 2005, the Michigan court ordered a hearing to show cause regarding why its March 16, 2005, custody order should not be set aside. At the show cause hearing on May 4, 2005, the court stated that its custody order had inadvertently decided which state had jurisdiction. The court also stated that it was not fair to defendant to grant plaintiff custody and to foreclose the issue of jurisdiction simply because defendant defaulted. On May 9, 2005, the Michigan court set aside its March 16, 2005, custody order. On May 12, 2005, the Michigan court and the Missouri court conferred by telephone. Both courts agreed that neither state was the child's home state and determined that Missouri was the proper state of jurisdiction. On May 16, 2005, the Michigan court entered an order declining jurisdiction to determine child custody and stating that the matter would proceed in Missouri. On May 20, 2005, the Missouri court entered an order determining that Missouri was the proper state of jurisdiction.

II. Analysis

A

Plaintiff first argues that the trial court abused its discretion when it elected not to hear oral argument before rendering a decision on proper jurisdiction. A court may, in its discretion, omit or limit oral argument regarding a motion. MCR 2.119(E)(3). Oral argument, when allowed, should assist the court beyond the briefing. The decision to omit or limit oral argument is reviewed on appeal for an abuse of discretion. American Transmission, Inc. v. Channel 7 of Detroit, Inc., 239 Mich.App. 695, 709, 609 N.W.2d 607 (2000). An abuse of discretion occurs only when the result is so palpably and grossly violative of fact and logic that it evidences a perversity of will, a defiance of judgment, or the exercise of passion or bias. Flint City Council v. Michigan, 253 Mich.App. 378, 397, 655 N.W.2d 604 (2002).

Although defendant failed to submit a brief, the Michigan trial court was satisfied that plaintiff had thoroughly briefed the jurisdictional issue. The Michigan trial court elected not to hear oral argument, but did confer with the Missouri trial court regarding proper jurisdiction before rendering its decision. See MCL 722.1110 and 722.1206(2). Without defendant's argument, plaintiff's position required no further elaboration. The trial court did not abuse its discretion in omitting oral argument. American Transmission, Inc., supra at 709, 609 N.W.2d 607.

B

Plaintiff argues that the trial court erred in its jurisdictional analysis and in ultimately declining jurisdiction. Whether a court has subject-matter jurisdiction to hear a particular matter is an issue of law that is reviewed de novo. Young v. Punturo, 252 Mich.App. 47, 54, 651 N.W.2d 122 (2002). Once jurisdiction is established, a trial court's decision concerning whether to exercise jurisdiction in a custody proceeding is reviewed for an abuse of discretion. Id.

At the time this dispute arose Michigan had adopted the UCCJEA,¹ but Missouri was still acting, and continues to act, under the Uniform Child Custody Jurisdiction Act.² Plaintiff argues that the trial court clearly erred when it applied a balancing test resulting in a finding that Michigan did not have jurisdiction to hear the matter under MCL 722.1201(1)(b), and also erred when it found that plaintiff and the minor child did not have a "significant connection" with Michigan. Plaintiff assigns error to the trial court's analysis pursuant to MCL 722.1201³ regarding when a Michigan court has jurisdiction to make an initial child custody determination. Before a Michigan court makes an initial child custody determination, its determination is subject to whether an out-of-state child custody proceeding has already commenced. Specifically, MCL 722.1206 provides, in pertinent part:

(1) Except as otherwise provided in section 204, a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section 207.

(2) Except as otherwise provided in section 204, before hearing a child-custody proceeding, a court of this state shall examine the court documents and other information supplied by the parties as required by section 209. If the court determines that, at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this state shall stay its...