Stamadianos v. Stamadianos
| Decision Date | 07 June 1984 |
| Docket Number | Docket No. 66909 |
| Citation | 350 N.W.2d 268,133 Mich.App. 430 |
| Parties | Eugenia Pantely STAMADIANOS, Plaintiff-Appellant, v. Thomas G. STAMADIANOS, Defendant-Appellee. 133 Mich.App. 430, 350 N.W.2d 268 |
| Court | Court of Appeal of Michigan — District of US |
[133 MICHAPP 432] Erwin A. Salisbury, Ann Arbor, for plaintiff-appellant.
Whitker & Benz, P.C. by Bruce H. Benz, Ann Arbor, for defendant-appellee.
Before KELLY, P.J., and R.B. BURNS and BENSON *, JJ.
Plaintiff and defendant were granted a consent default judgment of divorce in the Livingston County Circuit Court on April 27, 1981. The final decree incorporated a property settlement which had been negotiated by the parties and which apportioned all marital assets and liabilities. Plaintiff was awarded $625 in attorney fees.
One year after entry of the judgment, defendant filed a motion to modify the property settlement alleging that plaintiff had committed several frauds upon the court. Various responsive pleadings were filed, following which plaintiff eventually filed an affidavit admitting that she had failed to comply with the ten-day residency rule set forth [133 MICHAPP 433] in M.C.L. Sec. 552.9; M.S.A. Sec. 25.89. While plaintiff had resided in Livingston County ten days prior to filing her divorce complaint, she never intended to make Livingston County her permanent home and had not understood the necessity of such intent in establishing legal residency.
At the hearing on defendant's motion, the trial court found that it was without jurisdiction to grant the divorce in light of plaintiff's failure to comply with the ten-day residency rule. However, since plaintiff had remarried, the trial court declined to set aside the judgment in its entirety and instead set aside only the property settlement provisions and the award of attorney fees. The court further denied plaintiff's request for attorney fees accrued as a result of defendant's motion for modification and instead assessed costs and attorney fees against plaintiff in the amount of $6,107.38.
Plaintiff appeals as of right from the denial of attorney fees and from the assessment of fees and costs against her.
While plaintiff does not challenge the trial court's ruling that it was without jurisdiction to enter a divorce decree in the instant case, we conclude that this is the determinative issue. M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 provides:
"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."
While the trial court in this case construed this provision to be entirely jurisdictional, this Court [133 MICHAPP 434] reached a contrary conclusion in Abadi v. Abadi, 78 Mich.App. 73, 76-77, 259 N.W.2d 244 (1977), lv. den. 402 Mich. 870 (1978). We agree with the holding in Abadi and find that the trial court erred in ruling that it was without jurisdiction in the instant case.
The concept of personal jurisdiction generally refers to the nexus or contact between an individual party and the forum state. M.C.L. Sec. 600.701; M.S.A. Sec. 27A.701; Fitzwater v. Fitzwater, 97 Mich.App. 92, 97, 294 N.W.2d 249 (1980). Venue, on the other hand, refers in modern law to the geographical place of trial or to the locality in which a suit may be heard. 92 CJS, Venue, Sec. 1 p. 667. See also, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p. 246 fn 5.
The ten-day residency rule at issue here is not specifically designated by the Legislature as a jurisdictional or venue provision. All that is clear from the face of the statute is that the ten-day residency rule is one of two residency prerequisites to the maintenance of a divorce action in a circuit court of this state. Where the terms of a statute are ambiguous, this Court must construe the statute so as to effectuate the legislative intent behind its enactment. Carpenter v. School District of the City of Flint, 115 Mich.App. 683, 686-687, 321 N.W.2d 772 (1982), lv. den. 417 Mich. 868 (1983). Given the generally understood concepts of jurisdiction and venue as already described, we do not believe that the Legislature intended the ten-day residency rule to be a jurisdictional prerequisite to the filing of a divorce complaint in this state.
While we do not have any data on the subject, we believe that a significant number of divorces in Michigan involve one party taking up residence in another county immediately prior to the filing of a [133 MICHAPP 435] divorce complaint, usually as a result of the parties' reasonable decision to discontinue living together. For various reasons, these living arrangements are often temporary. To now hold that an otherwise valid divorce decree may subsequently be declared void on the ground that one of the parties did not satisfy the county residency requirement, we believe, casts a cloud of uncertainty over these divorces and constitutes too powerful a weapon to place in the hands of disgruntled former spouses, absent specific direction from the Legislature that such is the intent of M.C.L. Sec. 552.9; M.S.A. Sec. 25.89. This case presents only one of the many problems that may result from a finding that the ten-day residency requirement is jurisdictional in nature. Justifiably relying on what she believed to be a valid divorce decree, plaintiff remarried before defendant moved to have the decree declared void. The trial court inexplicably and inconsistently held that, while its lack of jurisdiction over the parties required it to void the property settlement and attorney fee award, it was not necessary to declare the actual grant of the divorce void as well. We believe that if the ten-day residency requirement is truly jurisdictional then the trial court had no alternative but to declare that divorce decree invalid as well. Divorce is too frequent a fact of marital life to be infected by such a latent malignancy.
We recognize that in Lehman v. Lehman, 312 Mich. 102, 19 N.W.2d 502 (1945), the Michigan Supreme Court construed a county residency statute applicable to divorce actions as jurisdictional in nature. We do not believe that the holding in Lehman is controlling, however, since (1) Lehman involves a different statute and (2) at the time Lehman was decided, the Michigan Legislature [133 MICHAPP 436] had not yet embraced the modern concept of venue as subsequently set forth in Chapter 16 of the Revised Judicature Act, M.C.L. Sec. 600.1601 et seq.; M.S.A. Sec. 27A.1601 et seq. We further note our disagreement with another panel of this Court which has construed the ten-day residency rule set forth in M.C.L. Sec. 552.9; M.S.A. Sec. 25.89, prior to its amendment, as jurisdictional in nature. Beaudry v. Beaudry, 20 Mich.App. 287, 174 N.W.2d 28 (1969).
Given our finding that the ten-day residency rule constitutes a venue provision, it follows that the trial court erred in setting aside the property settlement and attorney fees provisions of the consent default judgment entered in the instant case. Defendant failed to timely move for a change of venue, thereby waiving his right to raise this issue one year after entry of the divorce order. M.C.L. Sec. 600.1645; M.S.A. Sec. 27A.1645; GCR 1963, 401, 402, 409.
The original consent default judgment of divorce is reinstated and the award of attorney fees and costs against plaintiff is vacated. We remand this case for trial court consideration of whether attorney fees and costs incurred as a result of defendant's motion for modification and the resulting appeal should be assessed against either party, consistent with GCR 1963, 726. We do not retain jurisdiction.
Reversed and remanded.
In my opinion the ten-day county residence requirement of M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 represents a jurisdictional limitation on the court's power to enter a divorce judgment.
As the majority notes, in Lehman v. Lehman, [133 MICHAPP 437] 312 Mich. 102, 19 N.W.2d 502 (1945), the Michigan Supreme Court construed a precursor to M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 as being jurisdictional. With all due respect to the majority, I conclude that Lehman is controlling. It is of no import that the current statutory provisions on venue embodied in M.C.L. Sec. 600.1601; M.S.A. Sec. 27A.1601 through M.C.L. Sec. 600.1659; M.S.A. Sec. 27A.1659 were not codified as a group at the time Lehman was decided. Most, if not all, of the provisions set forth in Chapter 16 of the Revised Judicature Act (RJA) were embodied elsewhere in the complied laws when Lehman was decided or represented the common law of this state at the time of Lehman. Moreover, the simple fact is that not one of the venue provisions in Chapter 16 of RJA specifically applies to divorce actions. I fail to see how the Legislature's codification of preexisting venue provisions in the RJA reflects a legislative intent to overrule Lehman.
It is presumed that when the Legislature amends a statute it has knowledge of the existing law. Skidmore v. Czapiga, 82 Mich.App. 689, 691, 267 N.W.2d 150 (1978), lv. den. 403 Mich. 810 (1978). Had the Legislature intended to abrogate the rule of Lehman by codifying venue provisions in the RJA, it would minimally have included a provision addressing venue in divorce cases. Not only did the Legislature fail to do this, but in 1974 it reenacted M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 in positive language similar to that used in the provision in effect at the time of Lehman and kept this provision in the section of the compiled laws concerned with divorce.
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Stamadianos v. Stamadianos
...to appeal) 2 regarding attorney fees, assessments, and costs. We reverse the Court of Appeals decision in Stamadianos v. Stamadianos, 133 Mich.App. 430, 350 N.W.2d 268 (1984), and hold that the ten-day county residency provision is jurisdictional. Thus, we set aside the judgment of divorce,......
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Pantely v. Garris, Garris & Garris, P.C.
...entire judgment, holding that the ten-day requirement was a venue provision only and not jurisdictional. Stamadianos v. Stamadianos, 133 Mich.App. 430, 434-436, 350 N.W.2d 268 (1984). The Michigan Supreme Court reversed and set aside the entire judgment, holding that the residency requireme......