Lewis v. Lewis

• Decision Date: 05 November 1986
• Docket Number: Docket No. 81233
• Citation: 395 N.W.2d 44,153 Mich.App. 164
• Parties: Sherry Diane LEWIS, Plaintiff-Appellee, v. Kenneth Eugene LEWIS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 44

395 N.W.2d 44

153 Mich.App. 164

Sherry Diane LEWIS, Plaintiff-Appellee, v.Kenneth Eugene LEWIS, Defendant-Appellant.

Docket No. 81233.

Court of Appeals of Michigan.

Submitted Nov. 6, 1985.

Decided July 8, 1986.

Released for Publication Nov. 5, 1986.

Coupe & Van Allsburg by William W. Coupe, Holland, for plaintiff-appellee.

Barnard & Smith, P.C. by Robert J. Barnard, Jr., Kalamazoo, for defendant-appellant.

Before MAHER, P.J., and KELLY and MOES^*, JJ.

PER CURIAM.

Defendant appeals by leave granted from an order of the Allegan County Circuit Court establishing the court's jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), M.C.L. Sec. 600.651 et seq.;M.S.A. Sec. 27A.651 et seq.

Plaintiff and defendant were married in Florida on October 21, 1979.James Chad Lewis was born on August 21, 1980.Sarah Leann Lewis was born on December 20, 1982.On May 21, 1984, plaintiff, pregnant with her third child, travelled to Michigan with the parties' two children to visit her sick father.Plaintiff did not return to Florida and on June 11, 1984, she filed a complaint for separate maintenance in the Allegan County Circuit Court.On June 12, 1984, the trial court entered an ex parte order granting plaintiff temporary custody, alimony and child support.

Defendant arrived in Michigan on August 1, 1984, at which time he was served with copies of plaintiff's complaint and the ex parte order.Defendant filed an answer to plaintiff's complaint, a petition to set aside the ex parte order for custody, alimony and child support, and numerous motions seeking dismissal of plaintiff's lawsuit.

On October 17, 1984, the Allegan County Circuit Court judge issued an opinion concluding that the court had jurisdiction of the child custody determination under the UCCJA.All other defense motions were denied as being without merit.On December 19, 1984, the Allegan County Circuit Court judge entered a temporary order for custody, child support, and visitation.

On appeal, defendant raises several issues, including a challenge to the trial court's exercise of jurisdiction under the UCCJA.Since we conclude, however, that the trial court lacked jurisdiction over the action for separate maintenance and that its orders are void, resolution of the remaining issues is not necessary to this appeal.

Defendant raises an issue of first impression: whether the residency requirements for an action for divorce are applicable to an action for separate maintenance.After a thorough review of the applicable statutes, ¹we conclude that a circuit court cannot exercise jurisdiction over an action for separate maintenance where neither of the parties resided in this state for 180 days and in the county of filing for 10 days prior to the filing of the complaint for separate maintenance.

There is no dispute that prior to 1972the statute governing separate maintenance proceedings did not require residency in this state by a party for a certain length of time.Hatch v. Hatch, 323 Mich. 581, 36 N.W.2d 152(1949).M.C.L. Sec. 552.301;M.S.A. Sec. 25.211 provided in part:

"That whenever a husband shall, without good and sufficient cause desert his wife, or shall have hereafter deserted his wife without good and sufficient cause being of sufficient ability to support her, or shall have become an habitual drunkard since their marriage, or practiced extreme cruelty towards her, or committed the crime of adultery, or any other offense that entitles the wife to a decree of divorce or of separation, and shall refuse and neglect to support his wife, either the wife or husband being a resident of this state, the circuit court in chancery of any county in this state in which said husband or wife shall reside, shall on the application of the wife by petition, allot, assign, set apart and decree to her as alimony the use of such part of her husband's real and personal estate, or such proportion of his earnings, income or revenue as the court may determine * * *."(Emphasis added.)(Repealed by 75 P.A. 1971, Sec. 2, effective January 1, 1972.)

Under the statute, as long as one of the parties was a resident for any length of time, the circuit court had jurisdiction over the proceedings.In contrast, the statute governing divorce proceedings, M.C.L. Sec. 552.9;M.S.A. Sec. 25.89, has always required a term of residence as a condition for maintaining a proceeding for divorce.²

In 1971, the Legislature revised the divorce laws and adopted a no-fault basis for granting a judgment of divorce.At the same time, the separate maintenance statute was repealed and replaced to some extent by M.C.L. Sec. 552.7;M.S.A. Sec. 25.87 which provides:

"An action for separate maintenance may be filed in the circuit court in the same manner and on the same grounds as an action for divorce.In the complaint the plaintiff shall make no other explanation of the grounds for separate maintenance than by use of the statutory language."(Emphasis added.)

We construe Sec. 7 to require compliance with the jurisdictional residency requirements of the divorce statute.³

Although the residency requirements of the divorce statute may have been designed to discourage hasty divorces, Hill v. Hill, 354 Mich. 475, 477, 93 N.W.2d 157(1958), we believe, in light of the adoption of the no-fault system, that the purpose of the residency requirements is to establish a sufficient nexus between the state and the parties in order to protect the state's interests in avoiding officious intermeddling in matters of which another state has a paramount interest and in minimizing the susceptibility of its own divorce decrees to collateral attack.SeeSosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532(1975).As a panel of this Court has stated, the residency requirements of the divorce statute are designed to prevent "forum shopping".⁴We find such state interests equally compelling in actions for separate maintenance.

Furthermore, we believe that the 1971 revisions reflect a conscious effort by the Legislature to link the proceedings for separate maintenance and divorce.Conspicuously unchanged by the 1971 revisions is the statute governing annulment proceedings.M.C.L. 552.3;M.S.A. Sec. 25.83, like former M.C.L. Sec. 552.301;M.S.A. Sec. 25.211, does not require a term of residency as a condition for obtaining an annulment.The residency requirements of the divorce statute are inapplicable to actions for annulment.Hill, supra, 354 Mich. p. 477, 93 N.W.2d 157.As long as one of the parties is a resident of the county where the petition is filed, the circuit court has jurisdiction over the proceedings.We find significant the fact that while the annulment statute was not affected by the 1971 revisions, the law governing separate maintenance was modified so that an action for separate maintenance is to be filed "in the same manner" as an action for divorce.

In addition, M.C.L. Sec. 552.7(4);M.S.A. Sec. 25.87(4) provides that a judgment of separate maintenance may only be awarded if a counterclaim for divorce has not been filed.The Legislature, by requiring a 180-day residency for divorce actions, does not eliminate the 180 days when a counterclaim for divorce is filed in an action for separate maintenance.It would be inconsistent to allow a judgment of divorce in less than 180 days if it were awarded as a counterclaim rather than as a complaint.Were there no residence requirements for separate maintenance, a judgment of divorce could in like manner, pursuant to this statute, be granted without the required 180-day residency.

For these reasons, we conclude that a circuit court lacks jurisdiction to entertain an action for separate maintenance where neither of the parties resided in...