Safdar v. Aziz

• Decision Date: 07 March 2019
• Docket Number: No. 344030,344030
• Citation: 327 Mich.App. 252,933 N.W.2d 708
• Parties: Zaid SAFDAR, Plaintiff-Appellee, v. Donya AZIZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 252

933 N.W.2d 708

Zaid SAFDAR, Plaintiff-Appellee,

v.Donya AZIZ, Defendant-Appellant.

No. 344030

Court of Appeals of Michigan.

Submitted December 12, 2018, at Detroit.

Decided March 7, 2019, at 9:05 a.m.

Williams, Williams, Rattner & Plunkett, PC (by James P. Cunningham, Birmingham and Mary-Claire Petcoff) for plaintiff.

Clark Hill PLC (by Randi P. Glanz, Birmingham and Cynthia M. Filipovich, Detroit) for defendant.

Before: Murray, C.J., and Shapiro and Riordan, JJ.

Murray, C.J.

This is defendant’s appeal of the trial court’s order denying her motion for change of domicile to Pakistan for the minor child, IBAS, born during her marriage to plaintiff. Under state law, MCL 722.27a(10), a trial court cannot enter a parenting-time order allowing for the exercise of parenting time in a country that is not a "party" to the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention or the Convention). Because the United States has not accepted Pakistan’s accession to the Convention, Pakistan is not a "party" to the Convention for purposes of MCL 722.27a(10). Consequently, we affirm the trial court’s order denying the motion for change of domicile, but for reasons different than those utilized by the trial court.

I. BACKGROUND FACTS AND PROCEEDINGS

The parties are once again before this Court on an issue primarily pertaining to their minor child. Relevant to the current appeal is this Court’s decision in Safdar v. Aziz , 321 Mich. App. 219, 221-222, 909 N.W.2d 831 (2017), aff'd in part and vacated in part 501 Mich. 213, 912 N.W.2d 511 (2018), which addressed the parties' history:

Plaintiff and defendant, both Pakistani citizens, were married in Pakistan on June 24, 2011, and relocated to the United States, where plaintiff resided with an employment visa. In 2015, defendant moved to Michigan to live with her aunt, while plaintiff continued to reside in Maryland. The couple’s only daughter was born in Oakland County on January 1, 2016, and the parties divorced on December 21, 2016. Pursuant to the judgment of divorce, the parties agreed to share joint legal custody of the minor child, while defendant would maintain sole physical custody. The divorce judgment contained a provision prohibiting the exercise of parenting time in any country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. At that time, the prohibition applied to Pakistan. Challenging only the trial court’s denial of her motion for attorney fees, defendant filed a claim of appeal from the divorce judgment....

In March 2017, defendant filed the motion to change domicile that is the subject of this appeal, expressing her desire to relocate with the minor child to Pakistan as soon as possible and claiming that Pakistan had completed steps to become a party to the Hague Convention since entry of the judgment of divorce. Plaintiff objected, arguing that the trial court lacked authority to set aside or amend the judgment of divorce while defendant’s appeal from that judgment was pending before this Court. Defendant responded that her first appeal was limited to the issue of attorney fees and that the appeal did not preclude the trial court’s consideration of custody matters. The trial court adopted plaintiff’s position and entered an order dismissing defendant’s motion for change of domicile without prejudice, reasoning that pursuant to MCR 7.208(A), it lacked jurisdiction to modify any component of the judgment of divorce.

This Court reversed the trial court on the basis that "[t]he trial court erred when it determined that it lacked the authority to consider defendant’s motion for change of domicile and to modify the parties' divorce judgment during the pendency of defendant’s appeal." Id . at 227, 909 N.W.2d 831. Plaintiff appealed this decision and, in lieu of granting leave to appeal, the Michigan Supreme Court held that " MCL 722.27(1) authorizes the continuing jurisdiction of a circuit court to modify or amend its previous judgments or orders and is an exception to MCR 7.208(A) ‘otherwise provided by law.’ " Safdar v. Aziz , 501 Mich. 213, 219, 912 N.W.2d 511 (2018). The Supreme Court vacated this Court’s "decision to the extent it derived jurisdiction from MCL 552.17, affirm[ed] the result reached," and remanded the matter to the trial court for further proceedings. Id .

On September 27, 2017, which was shortly after the issuance of this Court’s opinion but before the Supreme Court’s ruling, defendant filed a new motion for change of domicile seeking to relocate the minor child with her to Pakistan. Defendant asserted that Pakistan was now a party to the Convention, eliminating any restriction imposed by MCL 722.27a(10).¹ Further, she argued that the move would greatly improve the quality of life for her and the minor child because a secure home, an excellent international school system, and free healthcare would be available, her immediate and extended family would be nearby, and she would have greater job opportunities and a more affordable cost of living. Defendant emphasized her full and complete compliance with the trial court’s previous orders, plaintiff’s monthly visits with the minor child, and her willingness to expand or accommodate a more beneficial parenting-time schedule to assure plaintiff’s maintenance of a bond with the minor child. She also denied having any improper motivation for the relocation. Plaintiff filed an answer to the motion for change of domicile, asserting that Pakistan’s accession to the Convention has not made it a treaty partner with the United States or a "party" in accordance with MCL 722.27a(10).²

At a subsequent motion hearing, the trial court discussed with the parties Pakistan’s status with respect to the Convention, ultimately indicating that the United States' failure to recognize Pakistan as a treaty partner constituted "a concern" and "a big issue." Nonetheless, the trial court indicated that an evidentiary hearing was required to resolve the motion to change domicile:

Well because the Court of Appeals says I had to I'm scheduling the hearing. I don't—I think you've got a up—uphill battle because I'm—I guess I will do more research but I have to be completely satisfied—I have that ... with respect to their participation, even if I decide that changing—moving this child to a different country is a good idea for that ... which ... you know it's concerning ‘cuz I don't—I don't know how you prove that it's in the child’s best interest. I really don't know. I mean you gotta look at all the factors, I'm gonna do that but it's ... not like you can go see him every ... other weekend or whatever.

The evidentiary hearing was conducted over a two-day period, with witnesses testifying for both sides about such matters as the political and economic environment in Pakistan, the school and living conditions that would be made available to the child in both countries, the past and current history between the parties, and the procedure for, as well as the likelihood of, enforcing a United States custody order in Pakistan.

On March 30, 2018, the trial court issued a written order. The trial court engaged in a lengthy recitation of the parties' history and the testimony adduced at the hearing and then, as to the Convention issue, concluded:

For the purposes of Article 38 [of the Convention], both parties agree that the United States is a contracting state, that Pakistan properly acceded to the Hague Convention, and that the United States did not take any of the required steps to declare its acceptance of Pakistan’s accession. Thus, the United States has not accepted Pakistan’s accession. Citizens of neither country have legal recourse, under the Hague Convention, if a parent from one country abducts a child into the other country.

The trial court then provided a thorough analysis of the factors set forth in MCL 722.31(4), finding that three factors favored plaintiff, that two factors were neutral between the parties, and that defendant failed to establish by a preponderance of the evidence that a change in domicile was in the child’s best interests. Having determined that a change in the minor child’s domicile was not in the child’s best interests, the trial court did not proceed to an analysis of whether a change would occur in the established custodial environment.

II. ANALYSIS

A. HAGUE CONVENTION AND MCL 722.27a(10)

Defendant contends that, because Pakistan has acceded to the Convention, it is now a "party" to that Convention as required by MCL 722.27a(10) and, therefore, the proscriptions imposed by MCL 722.27a(10) no longer remain an impediment to her request for change of domicile. As noted, the trial court recognized that the United States is a contracting party to the Convention and that Pakistan acceded to the Convention, but it never determined whether, as a result, Pakistan could be considered a "party" to the Convention for purposes of the statute.

"Issues of statutory interpretation are questions of law that this Court reviews de novo." Spectrum Health Hosps. v. Farm Bureau Mut. Ins. Co. of Mich. , 492 Mich. 503, 515, 821 N.W.2d 117 (2012). "Treaties have the same legal effect as statutes, and therefore a ... court’s interpretation of a treaty is reviewed de novo as well." VLM Food Trading Int'l, Inc. v. Illinois Trading Co. , 811 F.3d 247, 251 (C.A. 7, 2016).³

The rules of statutory interpretation are recognized to encompass the following:

In examining a statute, it is our obligation to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. One fundamental principle of statutory construction is that "a clear and unambiguous statute leaves no room for judicial construction or interpretation." Thus, when the Legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction; the proper role of a court is to apply

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