Wallace v. Wallace

• Decision Date: 26 May 1970
• Docket Number: No. 3,Docket No. 6366,3
• Citation: 179 N.W.2d 699,23 Mich.App. 741
• Parties: Eunice M. WALLACE, Plaintiff-Appellant, v. Richard G. WALLACE, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 699

179 N.W.2d 699

23 Mich.App. 741

Eunice M. WALLACE, Plaintiff-Appellant, v. Richard G. WALLACE, Defendant-Appellee.

Docket No. 6366.

Court of Appeals of Michigan, Division No. 3.

May 26, 1970.

Released for Publication Oct. 2, 1970.

Edward M. Yampolsky, Benton Harbor, for appellant.

William J. Hover, South Haven, for appellee.

Before R. B. BURNS, P.J., and FITZGERALD and LEVIN, JJ.

LEVIN, Judge.

This appeal challenges on several grounds an order modifying the child custody provisions of a divorce decree entered a number of years ago.

A decree of divorce was entered October 4, 1962 dissolving the marriage of the plaintiff wife and the defendant husband. The decree granted custody of the minor child of the marriage, Claudia, to her maternal aunt and uncle, Betty and David Tait. Subsequently the wife, the husband, the Taits and the minor child all moved to California.

On June 28, 1967 the husband filed a petition with the circuit court which had entered the dicree asking that the decree be modified to award him custody of Claudia. ¹ A hearing on the petition was scheduled for July 28, 1967.

The wife filed a motion to dismiss on July 27, 1967, on the ground of Forum non conveniens, both parents, the child and the Taits all now living in California. A copy of this motion was not served on the husband or his attorney, nor was it noticed for hearing; the motion was not acted upon by the trial court. ²

The wife did not answer the petition, nor did she appear personally or by counsel at the scheduled hearing. At the hearing one witness testified, the maternal grandmother who is a resident of Michigan. She said that her daughter was not mentally or physically able to assume Claudia's custody. As far as she knew Claudia's father had furnished the child's entire support since the divorce. Several years ago, after the move to California, he assumed actual physical custody of the child. However, because of the nature of his employment--he is a radio operator in the merchant marine--it is necessary for Claudia to live with relatives or friends much of the time.

Since the grandmother had not heard from Claudia for some time and did not know her present living situation, the trial judge said that he thought the friend of the court should be given an opportunity to make an investigation and recommendation before an order was signed.

Subsequently an order was entered modifying the judgment of divorce to grant custody of the child to the father. ³ It states that it was entered upon the father's petition and the filed report of the friend of the court recommending that the petition be granted.

The mother then moved to vacate the order changing custody on several grounds, which we will presently consider. Her motion was denied and this appeal followed.

The circuit court, having entered a decree of divorce making an award of custody of a minor child, had jurisdiction to entertain a petition to modify that portion of the decree even though both parents and the child had ceased to be residents of Michigan. See Hentz v. Hentz (1963), 371 Mich. 335, 340, 341, 123 N.W.2d 757, 760, where the Michigan Supreme Court so held and stated, 'whether the order (modifying the decree) is good outside of Michigan is not determinative of its validity in this State nor of the jurisdiction of the Michigan court which made it.' ⁴

The husband's petition was verified as required by the court rule, GCR 1963, 725, but the notary's signature was not authenticated in the manner required by R.J.A. § 2102 (M.C.L.A. § 600.2102 (Stat.Ann.1962 Rev. § 27A.2102)) concerning the authentication of affidavits taken in another State or country. The wife claims that this defect is jurisdictional on the authority of In re Alston's Estate (1924), 229 Mich. 478, 201 N.W. 460. There a petition for delayed appeal from an order of the probate court to the circuit court was not authenticated in the manner required by the relevant statutory provision, which read then as it does now. The Michigan Supreme Court held that the unauthenticated petition could not be considered because the 'affidavit is a nullity.' The Court quoted the statement in Berkery v. Wayne Circuit Judge (1890), 82 Mich. 160, 46 N.W. 436, that an unauthenticated affidavit 'gave no jurisdiction to the clerk to file the transcript, or enter and docket the judgment.'

In an opinion filed in support of his order denying the wife's petition to vacate the order changing custody, the trial judge distinguished Alston on the grounds that there, in contrast with this case, the factual allegations in the petition were not supported at a hearing by other evidence and, in any event, he could change the provision in the decree regarding the child's custody on his own motion.

While a court may, as suggested but not decided in Geark v. Geark (1947), 318 Mich. 614, 617, 29 N.W.2d 89, have the authority on the motion of the prosecuting attorney or the friend of the court or, perhaps, even on its own motion, to change child custody provisions, in this case the court did not act on its own initiative. ⁵ The court was moved to act by the petition of the father.

We, nevertheless, see no need to reverse the trial judge's order.

Claudia was 13 years of age at the time of the hearing; her 16th birthday is next week, June 1, 1970.

The claimed defect can be cured by amendment. R.J.A. § 2311 provides:

'After judgment rendered in any cause, any defect or imperfections in matter or (of ⁶) form, contained in the record, pleadings, Process, entries, returns or other proceedings, may be rectified and amended by the court, in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variation in the record, from any process, pleading or proceeding had in such cause, shall be reformed and amended according to such original process, pleading or proceeding.' M.C.L.A. § 600.2311 (Stat.Ann.1962 Rev. § 27A.2311). ⁷ (Emphasis supplied.)

The court rules also provide for liberal amendment; GCR 1963, 102.3 provides that at any time the court may, in its discretion, allow any process to be amended. GCR 1963, 118.1 permits amendment of a pleading at any time by leave of court.

In Harrison v. Harrison (1893), 94 Mich. 559, 54 N.W. 275, the wife sued for divorce and the husband filed a cross bill for annulment. The Supreme Court concluded that the cross bill should have been granted. It appeared, however, that the cross bill had not been verfied as required by statute. The court acknowledged that a decree could not be granted on an unverified cross bill and remanded with the direction that the trial court allow the cross bill to be verified and then enter judgment in favor of the defendant husband granting him annulment of the marriage. Similarly see Van Slyke v. Van Slyke (1914), 183 Mich. 536, 540, 150 N.W. 114.

Here, as in Harrison and Van Slyke, and in contrast with Berkery v. Wayne Circuit Judge, Supra, where it was held that the defective affidavit could not be corrected by an order Nunc pro tunc, the circuit court acquired 'jurisdiction' independently of the defective petition by reason of papers properly filed in the proceedings before the defective petition was filed. ⁸

On the authority of Harrison and Van Slyke, we remand with directions similar to those there expressed, namely, that the petitioning husband be given an opportunity to obtain an authentication of the notary's signature...