Sirovey v. Campbell

• Court: Court of Appeal of Michigan
• Writing for the Court: SMOLENSKI
• Citation: Sirovey v. Campbell, 223 Mich.App. 59, 565 N.W.2d 857 (Mich. App. 1997)
• Decision Date: 18 April 1997
• Docket Number: 189136,Docket Nos. 180182
• Parties: Griff Daniel SIROVEY, Plaintiff-Appellee, v. Kathryn J. CAMPBELL, f/k/a Kathryn Jeanette Sirovey, Defendant-Appellant, and Daniel Sirovey and Dolly Sirovey, Intervening Petitioners-Appellees. Griff D. SIROVEY, Plaintiff, v. Kathryn J. CAMPBELL, f/k/a Kathryn Sirovey, Defendant-Appellant, and Daniel Sirovey and Dolly Sirovey, Intervening Petitioners-Appellees.

Page 857

565 N.W.2d 857

223 Mich.App. 59

Griff Daniel SIROVEY, Plaintiff-Appellee, v. Kathryn J. CAMPBELL, f/k/a Kathryn Jeanette Sirovey,

Defendant-Appellant,

and

Daniel Sirovey and Dolly Sirovey, Intervening Petitioners-Appellees.

Griff D. SIROVEY, Plaintiff, v. Kathryn J. CAMPBELL, f/k/a Kathryn Sirovey, Defendant-Appellant, and Daniel Sirovey and Dolly Sirovey, Intervening Petitioners-Appellees.

Docket Nos. 180182, 189136.

Court of Appeals of Michigan.

Submitted Oct. 1, 1996, at Detroit.

Decided April 18, 1997, at 9:20 a.m.

Released for Publication July 16, 1997.

Daniel C. Devine, Jr., Bloomfield Hills, for Daniel and Dolly Sirovey.

Sylvia K. Delin, Birmingham, for Kathryn J. Campbell.

Before MARKMAN, P.J., and SMOLENSKI and G.S. BUTH ^*, JJ.

SMOLENSKI, Judge.

In these consolidated appeals involving child custody, defendant Kathryn Campbell (formerly Kathryn Sirovey) appeals by leave granted October and November 1994 orders of the Oakland Circuit Court. For the reasons stated in this opinion, we reverse the October and November orders except to the extent that they relate to visitation.

In 1982, plaintiff, Griff Sirovey, ¹ and defendant were married. A child, Heather, was born later that same year. The lower court file contains a letter signed by plaintiff and defendant indicating that they separated in 1987 and that defendant agreed that plaintiff have physical custody of Heather because he and his parents would best be able to provide for her. In 1988, a consent judgment of divorce was entered by the Oakland Circuit Court in which plaintiff and defendant agreed that they would share joint legal custody of Heather, but that plaintiff would have physical custody of Heather with defendant having reasonable visitation. The consent judgment of divorce specified that Heather's address was 1495 West Maple, Walled Lake, Michigan, the address of plaintiff's residence. The consent judgment of divorce also provided that plaintiff "shall promptly notify the Friend of the Court" whenever Heather was moved to another address. ²

The consent judgment of divorce did not include any provisions relating to visitation by any of Heather's grandparents. However, at some point in her young life, although the record is not entirely clear in this regard, ³ Heather began living with intervening petitioners at their residence in Detroit. Intervening petitioners drove Heather to Walled Lake every day to attend school. There is no indication that the circuit court or the friend of the court was notified of Heather's change of address.

Heather continued living with intervening petitioners through the first half of 1994. However, in early July 1994, plaintiff and defendant stipulated that physical custody be awarded to defendant effective July 15, 1994, with plaintiff having reasonable visitation. On or about July 25, 1994, the circuit court, without a determination of either the statutory best interests factors ⁴ or the existence of a custodial environment, ⁵ entered an order modifying the divorce judgment consistent with the stipulation. This order further provided in relevant part:

This Order is granted without investigation by the Office of the Friend of the Court, based upon the representation of the parties that this change is in the best interests of the minor child(ren).

Defendant acquired physical custody of Heather. Intervening petitioners were not informed of the entry of the order.

However, on August 10, 1994, after they apparently became so informed, intervening petitioners moved, in relevant part, (1) to intervene in the Sirovey v. Sirovey divorce case, (2) for an order to show cause why the July stipulation and order effecting Heather's custody should not be set aside, and (3) for an order awarding them legal and physical custody of Heather. Intervening petitioners contended that an established custodial environment existed with them, that the court had jurisdiction to decide their request for third-party custody, and that they had standing to seek custody of Heather pursuant to § 7 of the Child Custody Act, M.C.L. § 722.27; M.S.A. § 25.312(7). In the alternative, intervening petitioners also requested that they be granted visitation with Heather during the pendency of the action. That same day, the court entered an order to show cause that required the parties to appear before the court on August 19, 1994, concerning the relief requested by intervening petitioners.

One day before the scheduled show cause hearing, defendant answered the motions of intervening petitioners, asserting that the court did not have jurisdiction to consider intervening petitioners' motions and that intervening petitioners did not have standing pursuant to § 6c(1) of the Child Custody Act, M.C.L. § 722.26c(1); M.S.A. § 25.312(6c)(1) (action for custody by third person). Following the scheduled show cause hearing, the court took the matter under advisement pending a ruling regarding the "jurisdictional question as to whether the paternal grandparents have standing to be awarded custody."

In September 1994, intervening petitioners moved for summary disposition, requesting that the court "enter an Order establishing this Court's jurisdiction to determine third-party custody and to immediately award and return full physical custody of [Heather] to the Intervening Petitioners." Defendant also moved for summary disposition, requesting that the court dismiss intervening petitioners' action again on the ground that they did not have standing under § 6c(1) of the Child Custody Act to intervene in the divorce action with regard to the issue of custody. A hearing regarding the motions for summary disposition occurred in early October 1994. However, an order reflecting the circuit court's rulings at this hearing was not entered until November 9, 1994, because the parties were unable to agree upon the wording of a proposed order. As finally entered, the order provided, in relevant part, as follows:

1. This Court shall have jurisdiction over the minor child, HEATHER SIROVEY, for matters of custody and visitation until said child reaches the age of majority.

2. Intervening Petitioners, Paternal Grandparents, DANIEL and DOLLY SIROVEY, have standing to asset [sic] a claim for custody of said minor child in this matter pursuant to [§ 17a(1) of the divorce act, M.C.L. § 552.17a(1); M.S.A. § 25.97(1)(1) ].[ ⁶

3. Public Act No. 259 of 1993, at Page 3, Section 6c(1) [of the Child Custody Act] does not apply to this matter.

The order also provided that intervening petitioners have visitation with Heather. In Docket No. 189136, defendant appeals by leave granted from that order.

Meanwhile, on October 11, 1994, the circuit court, after reviewing a friend of the court recommendation, entered an order sua sponte appointing a guardian ad litem for Heather during the pendency of this action. In Docket No. 180182, defendant appeals by leave granted from that order.

Proceedings in the lower court have continued. A custody trial was scheduled for July 1995 and then adjourned without further action. It appears that at this time Heather is in defendant's physical custody with intervening petitioners having visitation.

On appeal, defendant raises no issue concerning visitation. Rather, the sole issue raised by defendant is her contention that intervening petitioners do not have standing to bring an action for custody of Heather. In Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992), our Supreme Court defined standing:

"One cannot rightfully invoke the jurisdiction of the court to enforce private rights, or maintain a civil action for the enforcement of such rights, unless one has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy. This interest is generally spoken of as 'standing' ".... [Id. at 42-43, 490 N.W.2d 568 (quoting 59 Am. Jur. 2d, Parties, § 30, p. 414).]

Defendant specifically contends on appeal, as she did below, that intervening petitioners do not have standing under § 6c of the Child Custody Act to assert a claim for custody of Heather. However, intervening petitioners contend that they do have standing to assert a claim for custody pursuant to § 7(1)(a) of the Child Custody Act, which provided, in part, as follows at the time the relevant proceedings below were ongoing:

(1) If a child custody dispute has been submitted to the circuit court as an original action under this act or has arisen incidentally from another action in the circuit court or an order or judgment of the circuit court, for the best interests of the child the court may:

(a) Award the custody of the child to 1 or more of the parties involved or to others and provide for payment of support for the child, until the child reaches 18 years of age.... [M.C.L. § 722.27(1)(a); M.S.A. § 25.312(7)(1)(a).] [ ⁷

The Child Custody Act applies directly to original child custody disputes or incidentally to child custody disputes arising from other actions, typically divorce proceedings. See In re Clausen (DeBoer v. Schmidt), 442 Mich. 648, 683, 502 N.W.2d 649 (1993). The term "child custody dispute" is generally used broadly throughout the Child Custody Act "to mean any action or situation involving the placement of a child." Frame v. Nehls, 452 Mich. 171, 179, 550 N.W.2d 739 (1996). Accordingly, there is certainly a bona fide child custody dispute in this case between defendant and intervening petitioners concerning Heather's placement. See Bowie, supra at 54, 490 N.W.2d 568. The question remains whether intervening petitioners have standing to assert a claim for custody of Heather. Id. at 55, 490 N.W.2d 568. Stated otherwise, the question remains whether intervening petitioners have standing to request the circuit court to make a determination of Heather's best interests ⁸ with respect to her custody. See id. at 41, 490 N.W.2d 568.

As a...