Smith v. Smith, Docket No. 189964

• Decision Date: 17 September 1996
• Docket Number: Docket No. 189964
• Citation: 555 N.W.2d 271,218 Mich.App. 727
• Parties: Elizabeth Anne SMITH, Plaintiff-Appellee, v. Matthew A. SMITH, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 271

555 N.W.2d 271

218 Mich.App. 727

Elizabeth Anne SMITH, Plaintiff-Appellee, v. Matthew A. SMITH, Defendant-Appellant.

Docket No. 189964.

Court of Appeals of Michigan.

Submitted July 9, 1996, at Grand Rapids.

Decided Sept. 17, 1996, at 9:05 a.m.

Released for Publication Nov. 8, 1996.

Krupp Law Offices, P.C. by Christian G. Krupp, II, Grand Rapids, for plaintiff.

Oosterhouse, Kravitz & Witte, P.C. by Curtis R. Witte, Grand Rapids, for defendant.

Before DOCTOROFF, C.J., and WAHLS and SMOLENSKI, JJ.

WAHLS, Judge.

Defendant appeals as of right a judgment of divorce as well as orders pertaining to child support, discovery, and other matters. The parties were married on December 6, 1987, in Genesee County, and have two children from that marriage. Defendant contends that the trial court lacked jurisdiction in this case because plaintiff neither intended to live in Kent County nor actually lived there for ten days before filing for divorce. We remand the case and direct the trial court to hold an evidentiary hearing regarding this jurisdictional question.

Plaintiff's complaint alleges that she and the parties' two children moved out of the marital home, which is located in Genesee County, on September 9, 1994. On September 19, 1994, plaintiff signed the divorce complaint in which she stated that she had resided in Kent County for at least ten days before filing the complaint. Plaintiff's counsel filed the complaint with the Kent Circuit Court on September 23, 1994.

On October 13, 1994, the court entered a temporary order that defendant pay $250 a week in child support, that plaintiff have custody of the two boys, and that defendant have visitation at mutually agreed-upon times. The parties agreed on minor modifications of the temporary order, and the court entered an order reflecting those changes on November 18, 1994. On March 1, 1995, defendant moved to dismiss the case. Defendant claimed that the court lacked jurisdiction under M.C.L. § 552.9(1); M.S.A. § 25.89(1), because plaintiff was not a resident of Kent County on the filing date or on any of the ten days preceding the filing. Thereafter, defendant noted his position at the opening of virtually every hearing.

Whether a court has subject-matter jurisdiction is a question of law. Universal Am-Can Ltd v. Attorney General, 197 Mich.App. 34, 37, 494 N.W.2d 787 (1992). The burden is on the plaintiff to establish jurisdiction. Id. Although the jurisdictional issue here was never resolved by the trial court, a challenge to subject- matter jurisdiction may be raised at any time, even if raised for the first time on appeal. Lehman v. Lehman, 312 Mich. 102, 105, 19 N.W.2d 502 (1945); Ass'n of Businesses Advocating Tariff Equity v. Public Service Comm., 192 Mich.App. 19, 24, 480 N.W.2d 585 (1991).

In Michigan, the circuit court's jurisdiction in a divorce action is strictly statutory. Stamadianos v. Stamadianos, 425 Mich. 1, 5, 385 N.W.2d 604 (1986); Tilley v. Tilley, 195 Mich.App. 309, 312, 489 N.W.2d 185 (1992). The Legislature has granted circuit courts jurisdiction to hear divorce cases, M.C.L. § 552.6; M.S.A. § 25.86, but limited that jurisdiction to those litigants who satisfy the following residency requirements of M.C.L. § 552.9(1); M.S.A. § 25.89(1):

A judgment of divorce shall not be granted by a court in this state in an action of divorce unless the complainant or defendant has resided in this state for 180 days immediately preceding the filing of the complaint and, except as otherwise provided in subsection (2), 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.

The residency and waiting period requirements of this statute are jurisdictional. Stamadianos, supra, pp. 6-7, 385 N.W.2d 604; Fowler v. Fowler, 191 Mich.App. 318, 319, 477 N.W.2d 112 (1991). Consequently, if these requirements are not met, the court cannot grant a judgment of divorce and must dismiss the case. Id.

When used in statutes conferring jurisdiction, residence is interpreted to mean legal residence or domicile. Id. The issue of legal residency is principally one of intent. Id. Presence, abode, property ownership, and other facts are often considered, but intent is the key factor. Leader v. Leader 73 Mich.App. 276, 281, 251 N.W.2d 288 (1977). Here, defendant raised a question of fact regarding whether plaintiff met the ten-day county residency requirement. Plaintiff's complaint alleged that she lived in Kent County from September 9, 1994, to September 19, 1994. However, in moving to dismiss this case, defendant argued that plaintiff did not leave the marital home until September 12, 1994, that school records from an elementary school in White Cloud (Newaygo County), Michigan, revealed that plaintiff had registered one of the children for classes there on September 14, 1994, and that, on that date, plaintiff gave the elementary school a White Cloud address for that child and herself.

Courts are bound to take notice of the limits of their authority. Bowie v. Arder, 441 Mich. 23, 56, 490 N.W.2d 568 (1992); People v. Erwin, 212 Mich.App. 55, 65, 536 N.W.2d 818 (1995). Even if the question is not raised by either party, a court should, on its own motion, recognize its lack of jurisdiction by staying the proceedings, resolving the jurisdictional question, and dismissing the case if jurisdiction is lacking. Fox v. Univ. of Michigan Bd. of Regents, 375 Mich. 238, 242, 134 N.W.2d 146 (1965); Lehman, supra, p. 105, 19 N.W.2d 502; In re Estate of Fraser, 288 Mich. 392, 394, 285 N.W. 1 (1939).

While the issue of defendant's jurisdictional motion was pending, defendant argued that he was being denied visitation with the children and did not pay any child support. On the other hand, plaintiff argued that defendant could not be trusted with visitation because he was not obeying the trial court's child support orders. Meanwhile, the child support arrearages kept climbing. On June 21, 1995, the trial court issued a bench warrant authorizing defendant's arrest for nonpayment of child support. On October 16, 1995, the date scheduled for the evidentiary hearing regarding defendant's motion, defendant did not appear. The court stated that a party in contempt of court for failure to obey that court's orders is not in a position to argue through local counsel that the case should be dismissed. The court also noted that a party in contempt was required to purge himself of the contempt before being heard by the court. The court never held the evidentiary hearing. Rather, plaintiff was sworn in and testified that she had resided in Kent County for ten days before filing for divorce. The court then entered a default judgment of divorce.

It is true that a circuit court has the authority to order a party to pay child support during the pendency of a divorce action. M.C.L. § 552.15; M.S.A. § 25.95. However, the child support arrearages were based on the trial court's temporary orders requiring child support. If the trial court lacked jurisdiction over this case, then it lacked authority to enforce...