Stamadianos v. Stamadianos

• Decision Date: 29 April 1986
• Docket Number: Docket No. 74171
• Citation: 385 N.W.2d 604,425 Mich. 1
• Parties: Eugenia Pantely STAMADIANOS, Plaintiff-Appellant, v. Thomas G. STAMADIANOS, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 604

385 N.W.2d 604

425 Mich. 1

Eugenia Pantely STAMADIANOS, Plaintiff-Appellant, v. Thomas G. STAMADIANOS, Defendant-Appellee.

Docket No. 74171.

Supreme Court of Michigan.

Submitted Dec. 19, 1985.

Decided April 29, 1986.

Molly H. Reno, Ann Arbor, for plaintiff-appellant.

RILEY, Justice.

This matter is before this Court to decide a question certified by the Court of Appeals ¹ as to whether the panel in the instant case erred in holding that the ten-day county residency rule set forth in M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 is a venue provision rather than a jurisdictional provision.

Also before this Court is the issue raised by the plaintiff (treated as an application for leave 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, and need not reach the other issue raised by plaintiff.

I. FACTS

The parties were granted a consent default judgment of divorce on April 27, 1981, by the Livingston Circuit Court. The plaintiff alleged in her sworn complaint for divorce, and testified at the pro confesso hearing on her complaint, that she had lived in Livingston County for at least ten days immediately preceding the filing of her complaint.

A property settlement apportioning the assets and liabilities of the parties was among the several provisions incorporated in the divorce judgment granted by the court. Also included was a provision requiring defendant to pay $625 toward plaintiff's attorney fees. Approximately one year following entry of this default judgment, the defendant filed a motion to modify the property settlement provisions, as well as the attorney-fee provision. As an alternative to modification, the defendant requested that the entire default judgment of the divorce be set aside, alleging that the plaintiff had committed several frauds upon the court, including misrepresenting that she was a resident of Livingston County for the statutorily required ten days immediately preceding the filing of the complaint. The plaintiff eventually filed an affidavit admitting failure to comply with the ten-day county residency rule.

Following the hearing on the defendant's motion, the trial court found that it had been without jurisdiction to enter the judgment of divorce. However, the trial judge further concluded that, since the plaintiff had remarried, rather than set aside the judgment he would set aside the property settlement provisions and the award of attorney fees. In addition, the Court denied the plaintiff's request for attorney fees which accrued pursuant to defendant's motion to modify, and instead assessed attorney fees and costs (totaling $6,107.38) against the plaintiff.

It was the refusal of the trial court to award attorney fees and from the assessment of fees and costs against her that the plaintiff raised in the Court of Appeals. However, while the plaintiff did not challenge the trial court's ruling that it lacked jurisdiction to enter a divorce decree, the Court of Appeals concluded that jurisdiction was the dispositive issue, holding that M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 is a venue provision. Consistent, therewith, they reinstated the consent default judgment of divorce and vacated the award of attorney fees and costs against plaintiff. The case was remanded to the trial court for consideration of whether attorney fees and costs incurred pursuant to defendant's motion for modification and the resulting appeal should be assessed against either party.

II. DISCUSSION

In Michigan, there is no common-law authority to grant a judgment of divorce. The jurisdiction of the circuit courts in matters of divorce is strictly statutory. Yedinak v. Yedinak, 383 Mich. 409, 175 N.W.2d 706 (1970); Flynn v. Flynn, 367 Mich. 625, 116 N.W.2d 907 (1962), and Hatch v. Hatch, 323 Mich. 581, 36 N.W.2d 152 (1949).

The statute in question 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." 1974 P.A. 344; M.C.L. Sec. 552.9; M.S.A. Sec. 25.89. (Emphasis added.)

The dispute in this case centers on the emphasized language regarding county residency. However, an examination of the state residency requirement is necessary to our analysis of the county residency requirement.

State residency requirements, by definition, obligate a plaintiff, in order to obtain a decree of divorce, to reside a certain period of time within the state in which the divorce decree is sought. These state residency requirements have been upheld by the United States Supreme Court against the contention that they violate the United States Constitution. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Furthermore, many jurisdictions, including Michigan, have held that compliance with the statutory requirement as to the length of residency is jurisdictional and that the failure of a court to comply renders a divorce decree absolutely void. ³

In Kennedy v. Kennedy, 325 Mich. 613, 617, 39 N.W.2d 67 (1949), this Court held that where there was no evidence that either of the parties to divorce actually had resided in the state for at least one year as required by the applicable statute, the trial court did not have jurisdiction to render a divorce decree.

"There was no testimony on the hearing in open court to establish that either of the parties had resided in the State of Michigan for a period of 1 year. See C.L.1929, Sec. 12731, as amended by P.A.1941 No. 2, (CLS 1945, Sec. 12731, Stat.Ann. 1946 Cum.Supp. Sec. 25.89). ⁴

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"While the defendant withdrew his answer and consented that the bill of complaint be taken as confessed, and consented that the plaintiff proceed at once as in a pro confesso case, still such consent does not establish jurisdiction. In Bradfield v. Bradfield, 154 Mich 115, 119 [117 NW 588 (1908) ] (129 Am St Rep 468), we say:

" 'It is urged that, even should the court hold that complainant was not a resident of this State within the meaning of the statute, defendant by admitting in his answer the allegation of the bill relative to her residence is precluded from raising the question. Such admission did not confer jurisdiction upon the court. If the law were otherwise, the very purpose of the statute would be defeated, and collusive and fraudulent divorces encouraged. Such holding would be against public policy. Upon this question the conclusion of the court is founded upon reason and supported by authority.' (Citing Smith v Smith, 10 ND 219 [86 NW 721 (1901) ], and Prettyman v Prettyman, 125 Ind 149 [25 NE 179 (1890) ].)" 325 Mich. 615-616, 39 N.W.2d 67.

See also White v. White, 242 Mich. 555, 219 N.W. 593 (1928); Bradfield v. Bradfield, supra, and Pierson v. Pierson, 132 Mich.App. 667, 347 N.W.2d 779 (1984).

Having reaffirmed that Michigan case law supports the conclusion that the state residency requirement of M.C.L. Sec. 552.9; M.S.A. Sec. 25.89 is jurisdictional, we conclude, also, that the ten-day county residency requirement set forth in the same statute also represents a jurisdictional limitation on the circuit court's power to enter a divorce decree.

This Court held in Lehman v. Lehman, 312 Mich. 102, 105, 19 N.W.2d 502 (1945), that the county residency requirement extant at that time represented a jurisdictional limitation on the circuit court. In applying the county residency requirement which read "[a] divorce from the bonds of matrimony may be decreed by the circuit court of the county where the parties or one of them, reside ...," ⁵ we reversed the trial court's decree and directed the entry of a decree dismissing the plaintiff's bill of complaint and defendant's cross-bill, because the trial court lacked jurisdiction to grant the decree in question.

"The record clearly establishes that neither party was a resident of Chippewa county at the time the present suit was begun or when the decree was entered. Wright v. Genesee Circuit Judge, 117 Mich 244 [75 NW 465 (1898) ]; Reed v Reed, 52 Mich 117 (50 Am Rep 247) [ (1883) ]. Therefore, under section 12728 quoted above, the circuit court of that county was without jurisdiction to grant the decree in question. The jurisdiction of the court was statutory ( Winter v Winter, 276 Mich 665 [268 NW 774 (1936) ]; Herp v Herp, 254 Mich 33 [235 NW 850 (1931) ]; Haines v Haines, 35 Mich 138 (1876), and jurisdiction could not be conferred by consent of the parties. Mondou v. Lincoln Mutual Casualty Co, 283 Mich 353 [278 NW 94 (1938) ]; Nichols v Houghton Circuit Judge, 185 Mich 654 (Ann Cas 1917 D, 100) [ (1915) ]. Failure to allege residence in the county could be cured by amendment, but the fact of residence must be proved. In the case of People v McCaffrey, 75 Mich 115, 125, 126 [42 NW 681 (1889) ], we said:

" 'Failure to allege his residence within that particular county was not a jurisdictional defect.

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" 'The omission to allege it may be cured by amendment, though this fact (of residence) must be made to appear in the proofs in order to give relief.'

"In 3 Searl, Michigan Pleading & Practice, p 333, Sec. 1334, it is stated:

" 'Bills for divorce must be filed in the county where one of the parties resides.'

"See, also, Titus v Chippewa Circuit Judge, 168 Mich 507 [134 NW 487 (1912) ]." (Emphasis in original.) 312 Mich. 106, 19 N.W.2d 502.

The county residency rule was later at issue in Beaudry v. Beaudry, 20 Mich.App. 287, 174 N.W.2d 28 (1969), wherein the defendant appealed from the denial of his motion to dismiss the complaint for divorce...