Krajewski v. Krajewski, Docket No. 63848

• Decision Date: 06 July 1983
• Docket Number: Docket No. 63848
• Citation: 125 Mich.App. 407,335 N.W.2d 923
• Parties: Edna KRAJEWSKI (Now Edna Kiser), Plaintiff-Appellant, v. Gerhard KRAJEWSKI, Defendant, v. Theresa KRAJEWSKI, Minor, by Guardian ad Litem James STRAUB, and Prosecuting Attorney for Berrien County, Michigan, Appellees. 125 Mich.App. 407, 335 N.W.2d 923
• Court: Court of Appeal of Michigan — District of US

Page 923

335 N.W.2d 923

Edna KRAJEWSKI (Now Edna Kiser), Plaintiff-Appellant, v. Gerhard KRAJEWSKI, Defendant, v. Theresa KRAJEWSKI, Minor, by Guardian ad Litem James STRAUB, and Prosecuting Attorney for Berrien County, Michigan, Appellees.

Docket No. 63848.

125 Mich.App. 407, 335 N.W.2d 923

Court of Appeals of Michigan.

Submitted Nov. 5, 1982.

Decided May 3, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 409] Berrien County Legal Services Bureau, Inc. by Mary Ellen Drolet, St. Joseph, for plaintiff-appellant.

Seymour, Conybeare, Straub, Seaman & Allen by James M. Straub, St. Joseph, for appellee Theresa Krajewski by guardian ad litem James Straub.

Paul L. Maloney, Pros. Atty., and Robert S. Yampolsky, Asst. Pros. Atty., St. Joseph, for appellees.

Before MacKENZIE, P.J., and MAHER and SIMON ^*, JJ.

SIMON, Judge.

This action originally came before the Berrien County Circuit Court on motion of the prosecutor to waive jurisdiction over a child, Theresa Krajewski, to probate court where proceedings based on neglect were pending. The child, through her guardian ad litem, then brought a motion in circuit court for a declaratory judgment that a waiver of circuit court jurisdiction was not a prerequisite to probate court jurisdiction. Plaintiff appeals from the circuit court's determination that no waiver of circuit court jurisdiction was necessary. ¹

The custody of Theresa and her brother Edward was originally placed in plaintiff mother, Edna Krajewski, by a judgment of divorce granted in 1974. Subsequently, Theresa and Edward became temporary wards of the probate court under neglect proceedings. Probate jurisdiction over [125 MICHAPP 410] Theresa was terminated in 1978. Shortly thereafter the circuit court order was modified to place custody of Theresa in defendant father, Gerhard Krajewski.

In 1979, a neglect petition based on the father's failure to deal with Theresa's school problems was filed in probate court. The child was, after due hearing, made a temporary ward of the probate court and placed in a foster home under the supervision of the Department of Social Services. The mother appeared at this hearing and requested an opportunity to prove that she was a suitable person to take custody of her daughter because the pending petition contained no allegations of neglect on her part. While the action was pending, the question arose as to whether a waiver was necessary from circuit court because of this Court's decision in Rozelle v. Dora, 103 Mich.App. 607, 303 N.W.2d 43 (1981). The present action was then initiated in circuit court. The circuit judge ruled that Rozelle was factually distinguishable and that GCR 1963, 724.1(5) was intended to override any limiting effect M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2) might have on a probate court's exercise of jurisdiction. The effect of the ruling was that proceedings could continue in the probate court.

The probate court has no inherent powers. Its jurisdiction over children is derived solely from the Michigan Constitution and statutes. Fritts v. Krugh, 354 Mich. 97, 112, 92 N.W.2d 604 (1958). The probate court has original jurisdiction in all cases involving dependents, except as otherwise provided by law. Const.1963, art. 6, Sec. 15. Since the circuit courts have original jurisdiction in all matters not prohibited by law, Const.1963, art. 6, Sec. 13, circuit and probate courts have concurrent jurisdiction [125 MICHAPP 411] over neglected and abused minor children. Sovereign v. Sovereign, 354 Mich. 65, 86-87, 92 N.W.2d 585 (1958).

M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2) grants the probate court jurisdiction over neglect proceedings and further provides:

"If a petition is filed in any probate court alleging that a child is within the provisions of paragraphs (1) or (2) of subdivision (b), and the custody of such child shall be subject to the prior or continuing order of another court of record of this state, the court in which such petition is filed shall forthwith cause notice of the filing of such petition to be served upon the prosecuting attorney for the county in which such other court is situated, personally or by registered mail. Immediately upon receiving such notice, the prosecuting attorney shall prepare and file such pleadings, petitions, notices or orders as may be necessary to bring the matter before such other court for hearing and such disposition, consistent with the powers of such court, as may be for the best interests of such child. Pending action by such other court in regard to the matter, the probate court with which such petition has been filed shall have jurisdiction to make any temporary orders pertaining to care or custody which may be deemed advisable or necessary for the protection of such child." (Emphasis added).

PCR 111.2 incorporates by reference GCR 1963, 724.1(5), which provides:

"(5) Proceedings Affecting the Person of a Minor; Orders of Prior and Subsequent Courts of Record. Whenever any order, judgment, or amended order or judgment of any court of record of this state has provided or should have provided for continuing jurisdiction over the person of any minor; and during such continuing jurisdiction, proceedings are commenced in another court of record of this state having separate jurisdictional grounds provided by law affecting the [125 MICHAPP 412] person of the same minor, no waiver or transfer of jurisdiction is required for the full and valid exercise of jurisdiction of the subsequent court.

"All original pleadings shall indicate prior continuing jurisdiction of another court of record, if such fact is known to the petitioner.

"When a minor is known to be subject to the continuing jurisdiction of a prior court, written notice of the proceedings in the subsequent court shall be mailed to the clerk or register, the friend of the court or juvenile officer, and the prosecuting attorney of the county wherein such prior court is located. Such notice shall be mailed at least 20 days prior to the date set for hearing unless the minor is not then known to be subject to such continuing jurisdiction in which case such notice shall be given immediately upon such fact becoming known. Notice is not jurisdictional, and shall not preclude the subsequent court from entering interim orders prior to the expiration of said 20-day period if best interests of the child so require." (Emphasis added.)

Rozelle v. Dora, supra, presented this Court with the procedural converse of the present case. In Rozelle, the issue was whether the circuit court, having continuing jurisdiction over the child pursuant to a divorce decree, could entertain a motion for visitation rights after the probate court had permanently terminated the rights. The Court concluded that the circuit court could exercise jurisdiction under M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2), reasoning:

"The critical language is that contained in the second paragraph of subsection 2 above. This section provides that where the custody of a child is within the continuing jurisdiction of one court, a probate court later presented with a petition regarding custody is required to provide notice of the petition to the prosecutor in the county of the first court. That prosecuting attorney is then required to prepare pertinent pleadings or other documents so as to bring the custody-related matter [125 MICHAPP 413] before the court with continuing jurisdiction. The only authority of the probate court to act in regards to a person over whom the prior court has continuing jurisdiction is that 'temporary orders' may be issued which are 'deemed advisable or necessary for the protection of such child'.

* * *

"In this case, the child was subject to the continuing jurisdiction of the Ingham County Circuit Court, based upon a prior paternity action brought therein against the defendant. Further, at no time did the Ingham Circuit Court fully waive its jurisdiction. Where the child was under the continuing jurisdiction of the Ingham Circuit Court, the jurisdiction of the Ionia Probate Court was statutorily limited to the issuance of temporary orders pending further circuit court action. Therefore, the Ingham Circuit Court correctly found itself with jurisdiction to hear the plaintiff's petition." 103 Mich.App. at 610-612, 303 N.W.2d 43.

The Court also noted that under the procedural posture of the case GCR 1963, 724.1(5) did not conflict with M.C.L. Sec. 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2). While we agree with that conclusion, in the procedural setting of the present case, a clear conflict between the statute and rule arises.

When addressing a question of statutory meaning, this Court must first review the specific language of the disputed provision. Lamphere Schools v. Lamphere Federation of Teachers, 400 Mich. 104, 110, 252 N.W.2d 818 (1977), citing Dussia v. Monroe County Employees Retirement System, 386 Mich. 244, 191 N.W.2d 307 (1971). Further, it is a court's duty to determine and declare the legislative intent behind a particular provision. Aikens v. Dep't of Conservation, 387 Mich. 495, 198 N.W.2d 304 (1972).

As noted in Rozelle, the terms of M.C.L. Sec. [125 MICHAPP 414] 712A.2(b)(2); M.S.A. Sec. 27.3178(598.2)(b)(2) are clear and unambiguous. The statute provides that where an allegedly neglected child is subject to the continuing jurisdiction of a circuit court, the probate cou...