Green v. Green, Docket No. 78-1508

• Decision Date: 28 December 1978
• Docket Number: Docket No. 78-1508
• Citation: 276 N.W.2d 472,87 Mich.App. 706
• Parties: David GREEN, Plaintiff-Appellee, v. Debbie GREEN, Defendant-Appellant. 87 Mich.App. 706, 276 N.W.2d 472
• Court: Court of Appeal of Michigan — District of US

Page 472

276 N.W.2d 472

David GREEN, Plaintiff-Appellee, v. Debbie GREEN, Defendant-Appellant.

Docket No. 78-1508.

87 Mich.App. 706, 276 N.W.2d 472

Court of Appeals of Michigan.

Dec. 28, 1978.

Released for Publication March 29, 1979.

[87 MICHAPP 708] William H. Price, Jr., Ann Arbor, for defendant-appellant.

George C. Stewart, Ann Arbor, for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA and CYNAR, JJ.

DANHOF, Chief Judge.

This case involves the custody of a minor child, presently living with her father, the plaintiff, and her paternal grandparents at the latter's home in Ann Arbor.

The plaintiff brought the child to Michigan in February, 1977, from Texas, where he had separated from the child's mother. Subsequently, the mother, defendant in this suit, won custody of the child by default judgment filed in Texas on June 2, 1977, and within two weeks thereafter came to Michigan to enforce the decree in the Washtenaw County Circuit Court. The circuit court agreed to accord full faith and credit to the Texas judgment, but stayed enforcement until the father had had a reasonable opportunity to petition the Texas court for an amendment based on a change in circumstances.

The plaintiff discovered that by Texas law the judgment could not be amended in that state for one year. Therefore, he petitioned the Washtenaw court to reconsider its order and determine the [87 MICHAPP 709] permanent custody of the child. The Washtenaw County Friend of the Court informed the court that, because the child was in a critical stage of her development, it was imperative to decide the custody question immediately.

Whereupon, Washtenaw County Circuit Judge Ross Campbell telephoned the Texas court that had entered the initial custody decree to discuss whether Michigan should exercise its concurrent jurisdiction to modify the decree. The judges agreed by phone, later confirmed by letter of record, that it would be expedient for the Michigan court at that time to make some determination of the child's custody. Accordingly, Judge Campbell held a hearing which both parties attended with counsel, and concluded it was in the best interest of the child to stay with the father so long as he remained unmarried and living at his parents' home.

The defendant appeals that decision raising issues under both the Uniform Child Custody Jurisdiction Act, M.C.L. § 600.651 Et seq.; M.S.A. § 27A.651 Et seq., and the Child Custody Act, M.C.L. §§ 722.21-722.29; M.S.A. §§ 25.312(1)-25.312(9).

I

She first contends that the Washtenaw County Circuit Court did not have subject matter jurisdiction to determine questions relating to the child's permanent custody. The authority to modify the custody decree of a foreign court is granted and conditioned by three sections of the Uniform Child Custody Jurisdiction Act.

The basic grant of jurisdiction is in Sec. 3, M.C.L. § 600.653; M.S.A. § 27A.653, which provides in pertinent part:

[87 MICHAPP 710] (a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or

(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships;

Neither party seriously contends that the Washtenaw County Circuit Court lacked minimal jurisdiction. The plaintiff asserts that the court had jurisdiction under subsections 3(a)(1) and 3(a)(2). We agree there was jurisdiction under 3(a)(2). ¹

[87 MICHAPP 711] The first condition to a court's Sec. 3 jurisdiction to modify a foreign custody decree is stated in subsection 14(a), M.C.L. § 600.664(1); M.S.A. § 27A.664(1):

"If a court of another state has made a custody decree or judgment, a court of this state shall not modify that decree or judgment unless it appears to the court of this state that the court which rendered the decree or judgment does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with sections 651 to 673 or has declined to assume jurisdiction to modify the decree or judgment and the court of this state has jurisdiction."

The theory of this subsection is that courts rendering custody decrees normally retain continuing jurisdiction to modify them, and other states, in order to achieve greater stability of custody arrangements and avoid forum shopping, will defer to that continuing jurisdiction so long as the original state retains jurisdiction under the standards of the act. 9 Uniform Laws Annotated (Master ed.), Uniform Child Custody Jurisdiction Act, Commissioner's Note, p. 122. (Hereinafter Commissioner's Note.)

In this case, as the Washtenaw County Circuit Court acknowledged, Texas retained continuing jurisdiction to modify its original decree. See Commissioner's Note, Supra. We find, however, that the Texas court declined to exercise jurisdiction by its phone conversation and letter.

In determining whether to decline or retain jurisdiction, the Texas and Michigan judges admirably[87 MICHAPP 712] followed the procedures prescribed by the Uniform Child Custody Jurisdiction Act, Sec. 7, M.C.L. § 600.657; M.S.A. § 27A.657, including the suggestion in subsection d that the courts communicate and exchange pertinent information. ²

In her brief the defendant complains that the Texas court's decline of jurisdiction was too informal, that "courts speak through their written orders, not through letters between Judges". Neither the language of Sec. 14 nor the corresponding commissioner's notes require a court to formally decline to assume jurisdiction. The Act is to be construed to promote its purposes, which are generally to assure that child custody is determined by the state that can best decide the case in the interest of the child and to discourage relitigation and unilateral removal of children by avoiding judicial conflicts and by promoting cooperation and exchange of information between judges. See M.C.L. § 600.651; M.S.A. § 27A.651. While we would encourage judges in the future to decline jurisdiction by order, we find the purposes of the Act were adequately served in the present case by the judges' mutual decision and its official recordation.

A second qualification to a court's authority to modify under Sec. 3 is the "clean hands" principle of subsection 8(b), M.C.L. § 600.658(2); M.S.A. § 27A.658(2). That subsection is in two parts. The first mandates the court, "(u)nless required in the interest of the child," to decline to exercise jurisdiction to modify a foreign custody decree "if the petitioner, without consent of the person entitled to custody, has improperly [87 MICHAPP 713] removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody". Clearly, the present plaintiff's acts of removing his daughter from Texas and keeping her in his parents' home after the Texas decree was entered do not fall within the last clause of the quoted sentence. Neither do we reason that his removal was improper under the preceding clause. "Improperly" under subsection 8(b) means illegally, qualified by a special circumstances justification. Commissioner's Note, supra, Sec. 8(b), p. 116. Compare, Uniform Child Custody Jurisdiction Act, Sec. 8(a), M.C.L. § 600.658(1); M.S.A. § 27A.658(1) (definition of "wrongfully"). Since both spouses had a right to custody, until a court determination was made, and since the plaintiff removed the child from Texas before the Texas court entered its initial decree, his acts were not illegal.

Part two of M.C.L. § 600.658(2); M.S.A. § 27A.658(2), requires the court in its discretion to decline to exercise jurisdiction, "if the petitioner has violated (any other) provision(s) of a custody decree or judgment of another state * * * (and it) is just and proper under the circumstances" to decline jurisdiction. We agree with the Oregon case of Settle v. Settle, 276 Or. 759, 556 P.2d 962 (1976), Rev'g, 25 Or.App. 579, 550 P.2d 445 (1976), that the failure to return a child to the one entitled to custody under the decree of another state amounts to a violation of that state's decree under part two of subsection 8(b). Under the circumstances of this case, however, the Washtenaw County Circuit Court did not abuse its discretion in retaining jurisdiction.

In Settle, supra, the Oregon Supreme Court held it was proper for a lower court to exercise jurisdiction[87 MICHAPP 714] to modify an Indiana custody decree even though the petitioner's failure to obey the foreign decree was aggravated by her acts of removing the children from Indiana to Oregon during the pendency of a marriage dissolution proceeding in Indiana and secreting the child's whereabouts in Oregon. In contrast, the petitioner in the present case removed his daughter to Michigan before his wife began marriage dissolution proceedings in Texas and never secreted the child's whereabouts in this state. Indeed, the petitioner obtained a temporary custody order shortly after he arrived in Michigan, and has maintained custody ever since under a series of orders and judgments of the Washtenaw County Circuit Court.

In the final analysis the court should not decline jurisdiction under the clean hands principle to punish the parent...