In re Bibi Guardianship

• Decision Date: 03 May 2016
• Docket Number: Docket No. 327159.
• Citation: 890 N.W.2d 387,315 Mich.App. 323
• Parties: In re BIBI GUARDIANSHIP.
• Court: Court of Appeal of Michigan — District of US

315 Mich.App. 323

890 N.W.2d 387

In re BIBI GUARDIANSHIP.

Docket No. 327159.

Court of Appeals of Michigan.

Submitted April 12, 2016, at Detroit.

Decided May 3, 2016, at 9:05 a.m.

Wood, Kull, Herschfus, Obee & Kull, PC, Farmington Hills (by Katherine Wainright Shensky ), for Nadima Bibi.

Vincent D. Giovanni, Franklin for Lorraine Wallace.

Before: JANSEN, P.J., and SERVITTO and M.J. KELLY, JJ.

PER CURIAM.

In this dispute over guardianship, petitioner, Nadima Bibi, appeals by leave granted¹ the circuit court's appellate opinion and order, which affirmed the probate court's guardianship decision in favor of respondent, Lorraine Wallace. We conclude that the probate court erred when it applied principles of preclusion to Bibi's petition and that the circuit court erred when it affirmed the probate court's order. Accordingly, we reverse and remand for further proceedings in the probate court.

I. BASIC FACTS

This case arises out of a guardianship dispute between the minor wards' grandmothers. It began not long after the entry of a consent judgment in an earlier Canadian proceeding. According to the parties, the wards' parents have a long history of substance abuse, transient living, criminal activity, and incarceration for drug offenses. The Canadian proceeding was a "child protection proceeding" instituted by the Windsor–Essex Children's Aid Society (Children's Aid) under Ontario's Child and Family Services Act, RSO 1990, c C.11 (Can). The parties to that proceeding, including Bibi, agreed to the consent judgment. Under the terms of the consent judgment, the court "placed" the wards under the joint care and custody of Wallace and the wards' maternal aunt, "subject to the supervision of [Children's Aid] for a period of six months," and subject to further terms and conditions. The following spring, the wards' father died. Around that same time, their mother was incarcerated in a Florida county jail.

Bibi subsequently petitioned the probate court and asked it to appoint her as the wards' full guardian. In a cross-petition, Wallace also asked to be appointed the wards' guardian. The probate court determined that Bibi's petitions were barred by collateral estoppel and res judicata arising from the Canadian consent judgment. It then granted Wallace's request.

Bibi appealed the probate court's decision in the circuit court, and the circuit court affirmed. It determined that the probate court had properly applied collateral estoppel to bar Bibi's petition. In the alternative, it agreed with Wallace's argument that Bibi failed to establish grounds for revisiting an existing custody order. Specifically, it stated that Bibi failed to establish proper cause or a change of circumstances sufficient to justify "reopening the guardianship decision of the Ontario Court...."

Bibi now appeals in this Court.

II. ANALYSIS

A. STANDARDS OF REVIEW

Bibi argues on appeal that the probate and circuit courts erred by applying res judicata and estoppel and erred in applying the relevant law. "This Court reviews de novo whether the trial court properly interpreted and applied the relevant statutes...." Kaeb v. Kaeb, 309 Mich.App. 556, 564, 873 N.W.2d 319 (2015). This Court also reviews de novo whether the trial court properly applied legal doctrines such as res judicata and collateral estoppel. Estes v. Titus, 481 Mich. 573, 578–579, 751 N.W.2d 493 (2008). We likewise review de novo issues concerning choice and conflicts of law. Talmer Bank & Trust v. Parikh, 304 Mich.App. 373, 383, 848 N.W.2d 408 (2014), vacated in part on other grounds 497 Mich. 857, 852 N.W.2d 896 (2014).

This Court, however, reviews for an abuse of discretion a probate court's dispositional rulings and reviews for clear error the factual findings underlying a probate court's decision.

In re Lundy Estate, 291 Mich.App. 347, 352, 804 N.W.2d 773 (2011). A probate court "abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes." In re Temple Marital Trust, 278 Mich.App. 122, 128, 748 N.W.2d 265 (2008). A probate court's "finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding." In re Bennett Estate, 255 Mich.App. 545, 549, 662 N.W.2d 772 (2003).

B. CHOICE OF LAW

We must first determine whether Michigan or Canadian law governs the preclusive effect of the Canadian consent judgment. As a matter of comity, our Courts have recognized the validity of judgments from foreign nations. See Dart v. Dart, 460 Mich. 573, 597 N.W.2d 82 (1999). Likewise, "a consent judgment is a settlement or a contract that becomes a court judgment when the judge sanctions it," Acorn Investment Co. v. Mich. Basic Prop. Ins. Assn., 495 Mich. 338, 354, 852 N.W.2d 22 (2014) (quotation marks and citation omitted), and, subject to an exception, "interpretation of contract provisions is governed by the law of the state in which the contract was entered," Jones v. State Farm Mut. Auto. Ins. Co., 202 Mich.App. 393, 398, 509 N.W.2d 829 (1993), mod on other grounds by Patterson v. Kleiman, 447 Mich. 429, 433 n. 3, 526 N.W.2d 879 (1994). The exception to the rule is that, "[i]f the court of last resort in the foreign [jurisdiction] has not declared the applicable foreign law with absolute certainty, then Michigan law controls an action instituted in a Michigan forum." Jones, 202 Mich.App. at 398, 509 N.W.2d 829 (quotation marks and citations omitted). This exception applies to a foreign jurisdiction's application of preclusion principles. See id. at 398–401, 509 N.W.2d 829 (concluding that Michigan law controlled because the Kentucky Supreme Court had not declared with absolute certainty whether Kentucky's application of the doctrine of res judicata would bar the plaintiff's claim). Both collateral estoppel and res judicata are applied in a flexible, discretionary manner under Canadian law. Penner v. Niagara (Regional Police Servs. Bd.), 2013 SCC 19, ¶ 29; 2 SCR 125 (Can, 2013); R v. Mahalingan, 2008 SCC 63, ¶¶ 109–110; 3 SCR 316 (Can, 2008). Therefore, we shall apply Michigan law to determine whether the Canadian consent judgment should be given preclusive effect. See Jones, 202 Mich.App. at 398, 509 N.W.2d 829.

C. UNIFORM CHILD–CUSTODY JURISDICTION AND ENFORCEMENT ACT

As a preliminary matter, we shall address the parties' arguments concerning the application of the Uniform Child–Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq. Under the UCCJEA, a guardianship proceeding qualifies as a "child-custody proceeding," MCL 722.1102(d), and the phrase "child-custody determination" is broadly defined as "a judgment, decree, or other court order providing for legal custody, physical custody, or parenting time with respect to a child," including "a permanent, temporary, initial, and modification order," MCL 722.1102(c). The UCCJEA further defines "physical custody" as "the physical care and supervision of a child." MCL 722.1102(n). Therefore, despite the fact that the Canadian consent judgment established a temporary placement for the wards, it nevertheless qualifies as a "child-custody determination" regarding "physical custody" under the UCCJEA.

Because the consent judgment qualified as a child-custody determination, after the probate court became aware of the Canadian proceeding, it had to confer with the Ontario court regarding jurisdiction before it could exercise its own jurisdiction to issue a guardianship decision. See Fisher v. Belcher, 269 Mich.App. 247, 255, 713 N.W.2d 6 (2005). After conferring with the Ontario court, the probate court was permitted to exercise its jurisdiction under the UCCJEA if the prior " proceeding [was] terminated or ... stayed by the [foreign] court ... because a court of this state is a more convenient forum...." MCL 722.1206(1) ; see also Fisher, 269 Mich.App. at 255, 713 N.W.2d 6.

At the July 2014 petition hearing, the probate court noted for the record that it had conferred with the Ontario court and received "confirmation" that there was "nothing pending over in the [Ontario c]ourt" and that the Ontario court would accordingly terminate its jurisdiction over the wards. Because Bibi, Wallace, and the wards all now reside in Michigan, this state was clearly the more convenient forum. Consequently, after the Ontario court indicated that it had "nothing pending" in the prior action, and that it would terminate its jurisdiction as soon as the probate court assumed jurisdiction, the UCCJEA no longer applied.

D. COLLATERAL ESTOPPEL

Bibi argues that the probate court erred when it applied collateral estoppel to bar her petition. "Collateral estoppel is a flexible rule intended to relieve parties of multiple litigation, conserve judicial resources, and encourage reliance on adjudication." Rental Props. Owners Ass'n of Kent Co. v. Kent Co. Treasurer, 308 Mich.App. 498, 529, 866 N.W.2d 817 (2014). "The doctrine of collateral estoppel must be applied so as to strike a balance between the need to eliminate repetitious and needless litigation and the interest in affording litigants a full and fair adjudication of the issues involved in their claims." Storey v. Meijer, Inc., 431 Mich. 368, 372, 429 N.W.2d 169 (1988). However, collateral estoppel "does not apply to consent judgments where factual issues are neither tried nor conceded." Smit v. State Farm Mut. Auto. Ins. Co., 207 Mich.App. 674, 682, 525 N.W.2d 528 (1994), citing Van Pembrook v. Zero Mfg. Co., 146 Mich.App. 87, 102–103, 380 N.W.2d 60 (1985). There is no indication that the factual issues involved in the prior proceeding were actually tried or conceded by entry of the consent judgment. On the contrary, the consent judgment was merely an agreement between the parties regarding a temporary placement for the wards who were under the supervision of Children's Aid.

Additionally, the consent judgment was not a final decision on the merits. By its own terms, the consent judgment...