Pierson v. Pierson

• Decision Date: 04 May 1984
• Docket Number: Docket No. 70146
• Citation: Pierson v. Pierson, 347 N.W.2d 779, 132 Mich.App. 667 (Mich. App. 1984)
• Parties: Charlotte Kay PIERSON, Plaintiff-Appellee, v. Ronnie D. PIERSON, Defendant-Appellant. 132 Mich.App. 667, 347 N.W.2d 779
• Court: Court of Appeal of Michigan — District of US

Page 779

347 N.W.2d 779

Charlotte Kay PIERSON, Plaintiff-Appellee, v.Ronnie D. PIERSON, Defendant-Appellant.

Docket No. 70146.

132 Mich.App. 667, 347 N.W.2d 779

Court of Appeals of Michigan.

Submitted Nov. 1, 1983.

Decided March 6, 1984.

Released for Publication May 4, 1984.

[132 MICHAPP 668]Hooper, Hathaway, Price, Beuche & Wallace by James A. Evashevski, Ann Arbor, for plaintiff-appellee.

Law Offices of Peter J. Johnson by William J. Pearson, St. Joseph, for defendant-appellant.

Before MacKENZIE, P.J., and J.H. GILLIS and MEGARGLE, ^* JJ.

PER CURIAM.

Defendant husband appeals as of right from the denial of his motion to set aside a default judgment of divorce for lack of subject matter jurisdiction.

PlaintiffCharlotte Pierson and defendantRonnie Pierson were married on December 13, 1975, in Riverside, California.Two children were born during the course of the marriage: Carrie, born May 14, 1977; and Lora, born April 3, 1978.After numerous domestic arguments, plaintiff and her two daughters left the parties' home in Santa Rosa, California, arriving in Michigan on April 14, 1981.On April 28, 1981, plaintiff filed a complaint for separate maintenance in Washtenaw County Circuit Court.

On October 15, 1981, six months and one day after her arrival in Michigan, plaintiff filed an amended complaint for divorce.No original complaint of divorce was filed.

Defendant failed to respond to the amended complaint within the 20 days allotted by statute.Accordingly, a default judgment was entered on [132 MICHAPP 669]November 20, 1981, in which plaintiff was granted custody of the two children.Defendant then filed a special appearance to attack the subject matter jurisdiction of the trial court on two separate grounds.First, defendant alleged that plaintiff had not been a resident of Michigan for at least 180 days prior to the filing of the original complaint as required by M.C.L. Sec. 552.9;M.S.A. Sec. 25.89.Second, defendant claimed that plaintiff failed to comply with the six-month "waiting period" specified under M.C.L. Sec. 552.9f;M.S.A. Sec. 25.89(6).

This motion was denied by the trial judge who reasoned that because plaintiff had been a resident of Michigan for 180 days at the time the amended complaint was filed, public policy did not require that the default judgment be overturned in order to "prevent forum shopping".Defendant now appeals as of right from the judge's determination that subject matter jurisdiction over the divorce existed at the time the default judgment was entered.

In order to obtain a divorce in Michigan, the following statutory residency and waiting period requirements must be met.

Under M.C.L. Sec. 552.9;M.S.A. Sec. 25.89,

"[a] judgment of divorce shall not be granted by a court in this state in an action for divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and the complainant or defendant has resided in the county in which the complaint is filed for 10 days immediately preceding the filing of the complaint."

M.C.L. Sec. 552.9f;M.S.A. Sec. 25.89(6) requires that:

"In every case where there are dependent minor children under the age of 18 years, no proofs or testimony[132 MICHAPP 670] shall be taken in such cases for divorce until the expiration of 6 months from the day the bill of complaint is filed."

Plaintiff asserts that she fully complied with both of these statutory provisions.Plaintiff reaches this conclusion by using the date of the complaint for separate maintenance to fulfill the waiting period required under M.C.L. Sec. 552.9f;[M.S.A. Sec. 25.89(6) ].Since six months and one day elapsed between the date of filing and the day proofs and testimony were taken, plaintiff claims that she complied with the statutory requirement.

Also, plaintiff contends that the 180-day residency requirement should be measured from the date she arrived in Michigan to the date she filed the amended complaint of divorce.Measuring from the date of the amended complaint for divorce, rather than the date of the complaint for separate maintenance, plaintiff argues that she satisfied the 180-day residency requirement.

We disagree.

As defendant correctly points out, GCR 1963, 118.4 requires that the October 15, 1981, date on which the amended complaint for divorce was filed relate back to April 28, 1981, the date of the original complaint for separate maintenance.

The test for determining if an amendment relates back to the date of the original proceeding is whether "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading".GCR 1963, 118.4;Guerra v. Bar-Har Investments, Inc., 112 Mich.App. 302, 306, 315 N.W.2d 921(1982).

The focus is on whether the amendment springs from the same transactional setting as the original [132 MICHAPP 671] pleading.LaBar v. Cooper, 376 Mich. 401, 405-406, 137 N.W.2d 136(1965).The relation-back provision of GCR 1963, 118.4 applies here since both the original complaint for separate maintenance and the amended complaint for divorce arose out of the breakdown of the marriage.Consequently, the trial court was without jurisdiction to render a default judgment.

This conclusion is further supported by the ruling in Bull v. Bull, 109 Mich.App. 328, 311 N.W.2d 768...