White v. Harrison-White

• Decision Date: 21 August 2008
• Docket Number: Docket No. 272612.
• Citation: 280 Mich. App. 383,760 N.W.2d 691
• Parties: WHITE v. HARRISON-WHITE.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 691

280 Mich. App. 383

WHITE v. HARRISON-WHITE.

Docket No. 272612.

Court of Appeals of Michigan.

Submitted March 4, 2008, at Grand Rapids.

Decided August 21, 2008, at 9:10 a.m.

Strain, Murphy & Vanderwal, P.C. (by Peter D. Bosch), Grand Rapids, for the plaintiff.

Margaret E. Allen, for the defendant.

Before: FITZGERALD, P.J., and SMOLENSKI and BECKERING, JJ.

PER CURIAM.

Plaintiff appeals by leave granted the May 19, 2006, trial court order granting defendant's motion for a finding that the court lacked exclusive, continuing jurisdiction under the RELEVANT provision of the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1202(1)(a). We reverse and remand for proceedings consistent with this opinion.

I

The parties were married in Ontario, Canada, in September 1993, and their son, Callum White, was born in Ontario in July 1997. In May 2000, plaintiff began employment in Grand Rapids, Michigan. He then commuted between Ontario and Michigan for almost one year. In February 2001, plaintiff, defendant, and Callum moved to Rockford, Michigan. But, by February 2004, the parties' marriage had broken down and defendant and Callum returned to Ontario, where they currently reside.

Plaintiff filed for a divorce in March 2004. The trial court issued a temporary order dated July 6, 2004, stating that plaintiff "shall exercise parenting time with the parties' minor child every other weekend ... with every other visitation occurring in Ontario, Canada and every other visitation occurring in Rockford, Michigan," as well as alternating holiday and vacation parenting time. The court entered a judgment of divorce in July 2005, awarding joint legal custody to the parties, but primary physical custody to defendant. The divorce judgment awarded plaintiff liberal parenting time to be exercised in Michigan and Ontario.

The parenting time provisions of the divorce judgment were twice amended, and the August 29, 2005, amendment to the judgment provides, in part:

The Plaintiff shall have reasonable and liberal parenting time with the parties' minor child, including but not limited to alternating weekends and every other holiday. The weekend and holiday visitation shall be as follows:

A. Every other weekend as set forth in the Court's Order dated July 6, 2004.

B. From December of 2005 through March of 2006, the Plaintiff shall exercise parenting time as set forth in the Court's Temporary Order dated July 6, 2004. In that regard, the Plaintiff shall exercise his parenting time with the child in Ontario, Canada with alternating weekends of the parenting time being exercised in the United States.

C. Beginning in April of 2006 and continuing through November of 2006 and for similar periods in calendar years thereafter, the Plaintiff shall have the right to exercise his parenting time in the United States for two alternate weekends in a row, with parenting time for the third alternate weekend being exercised in Canada.

D. Beginning in April of 2007 and continuing through November of 2007 and for similar periods in calendar years thereafter, the Plaintiff may exercise his parenting time in the United States for three consecutive alternating weekends, with the fourth being exercised in Ontario, Canada.

The amendment further provides that plaintiff shall be entitled to regular telephone contact with Callum, alternating holiday parenting time, and vacation parenting time, including, but not limited to, every other spring vacation, half of Christmas vacation and, beginning in 2008, three consecutive weeks of summer vacation. In an order dated March 20, 2006, the trial court granted plaintiff's request for makeup visitation, as well as parenting time on Christmas Day 2006 and 2007.

On March 30, 2006, defendant moved for a finding that the trial court no longer had exclusive, continuing jurisdiction over custody determinations in this case, pursuant to MCL 722.1202(1)(a) and (b). The trial court granted defendant's motion in a May 19, 2006, order, determining that it no longer had jurisdiction under "MCL 722.1202(1)(a) and 722.1203" because "neither the child nor his parents [sic] have a significant connection with the State of Michigan and substantial evidence is no longer available in the state concerning the child's care, protection, training and personal relationships...." The court noted at the hearing on the matter, however, that it was reluctant to grant the motion because it seemed illogical to divest the court of jurisdiction considering that defendant had submitted to the jurisdiction of the Michigan courts at the time of the divorce judgment and subsequent custody rulings, despite the fact that she and Callum were already living in Ontario. We subsequently granted plaintiff's delayed application for leave to appeal. White v. Harrison-White, unpublished order of the Court of Appeals, entered November 27, 2006 (Docket No. 272612).

II

In this case of first impression, we are asked to construe the meaning of MCL 722.1202(1)(a), particularly the phrase "significant connection," to determine whether exclusive, continuing jurisdiction remained in Michigan under the circumstances presented. The determination whether a trial court has subject-matter jurisdiction and issues of statutory construction present questions of law, which we review de novo. Atchison v. Atchison, 256 Mich.App. 531, 534-535, 664 N.W.2d 249 (2003).

As this Court stated in USAA Ins. Co. v. Houston Gen. Ins. Co., 220 MichApp. 386, 389-390, 559 N.W.2d 98 (1996):

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature in enacting a provision. Statutory language should be construed reasonably, keeping in mind the purpose of the statute. The first criterion in determining intent is the specific language of the statute. If the statutory language is clear and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written. However, if reasonable minds can differ regarding the meaning of a statute, judicial construction is appropriate. [Citations omitted.]

Every word or phrase of a statute should be accorded its plain and ordinary meaning, but if the legislative intent cannot be determined from the statute itself, this Court may consult dictionary definitions. Haynes v. Neshewat, 477 Mich. 29, 36, 729 N.W.2d 488 (2007). Additionally, decisions from other states may guide this Court when interpreting uniform acts. SCD Chem. Distributors, Inc. v. Medley, 203 Mich.App. 374, 378, 512 N.W.2d 86 (1994).

III

The UCCJEA was promulgated by the National Conference of Commissioners on Uniform State Laws in 1997 and became effective in Michigan in 2002. Atchison, supra at 536, 664 N.W.2d 249. The UCCJEA was designed to replace the Uniform Child Custody Jurisdiction Act (UCCJA) and "rectify thirty years of inconsistent case law and revise child-custody jurisdiction in light of overlapping federal enactments." Id. The UCCJEA was further designed to

(1) rectify jurisdictional issues by prioritizing home-state jurisdiction, (2) clarify emergency jurisdictional issues to address time limitations and domestic-violence issues, (3) clarify the exclusive continuing jurisdiction for the state that entered the child-custody decree, (4) specify the type of custody proceedings that are governed by the act, (5) eliminate the term "best interests" to the extent that it invited a substantive analysis into jurisdictional considerations, and (6) provide a cost-effective and swift remedy in custody determinations. [Id.]

When applying the general and jurisdictional provisions of the UCCJEA, a foreign country is treated as a state of the United States. Id. at 537, 664 N.W.2d 249.

MCL 722.1202, which provides for the retention of exclusive, continuing jurisdiction for the state that entered the custody decree, was specifically designed to "rectify conflicting proceedings and orders in child-custody disputes." Id. at 538, 664 N.W.2d 249. MCL 722.1202 states, in relevant part:

(1) Except as otherwise provided in section 204¹, a court of this state that has made a child-custody determination consistent with section 201² or 203³ has exclusive, continuing jurisdiction over the child-custody determination until either of the following occurs:

(a) A court of this state determines that neither the child, nor the child and 1 parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.

(b) A court of this state or a court of another state determines that neither the child, nor a parent of the child, nor a person acting as the child's parent presently resides in this state.

(2) A court of this state that has exclusive, continuing jurisdiction under this section may decline to exercise its jurisdiction if the court determines that it is an inconvenient forum under section 207.⁴

Under MCL 722.1202(1)(a), a court of this state that makes an initial custody determination retains exclusive, continuing jurisdiction until neither the child nor the child and one parent or a person acting as a parent "have a significant connection with this state" and "substantial evidence is no longer available in this state concerning the child's care, protection, training and personal relationships." The Legislature's use of the term "and" compels the conclusion that jurisdiction is retained until both the requisite significant connection and the requisite substantial evidence are lacking. See Karaczewski v. Farbman Stein & Co., 478 Mich. 28, 43, 732 N.W.2d 56 (2007). The literal meanings of the terms "and" and "or" should be followed if they do not render the statute dubious. Auto-Owners Ins. v. Stenberg Bros., 227 Mich.App. 45, 50-51, 575 N.W.2d 79 (1997); Root v. Ins. Co. of North America, 214...