Opinion
367477
10-05-2023
Teri Nicole Brock v. Lance Richard Winter
LC No. 2023-518412-DP.
Sima G. Patel, Presiding Judge, Kathleen Jansen, Colleen A. O'Brien, Judges.
ORDER
The motion for immediate consideration is GRANTED.
Pursuant to MCR 7.205(E)(2), in lieu of granting the delayed application for leave to appeal, the Court VACATES the June 29, 2023 order entered by the Oakland Circuit Court and REMANDS for entry of an order dismissing the case for lack of jurisdiction. The trial court erred by concluding that Michigan was the child's home state when plaintiff commenced these proceedings in February 2023. See MCL 722.1201(1)(a). The child did not spend at least six consecutive months in Michigan immediately before the commencement of these proceedings, see MCL 722.1102(g); rather, the child spent a mere 56 days in Michigan during the relevant six-month period, and 53 of those days were after November 6, 2022. In nevertheless concluding that Michigan was the child's home state, the trial court erroneously determined the child's home state on the basis of where plaintiff intended to reside rather than where the child was actually and physically present. See Ramamoorthi v Ramamoorthi, 323 Mich.App. 324, 338-339; 918 N.W.2d 191 (2018). It was not until November 2022 that the child began actually spending significant time in Michigan as compared to Arizona. Between November 6, 2022, and February 21, 2023, TW divided his time fairly equally between Arizona and Michigan, and in these circumstances, the trial court did not err by concluding that Arizona was also not the child's home state when plaintiff commenced these proceedings in February 2023. However, the trial court erred by failing to consider the second basis for jurisdiction under MCL 722.1201(1)(a)-whether Arizona "was the home state of the child within 6 months before the commencement of the proceeding." The child was born in Arizona on March 26, 2022, and as of November 2022, the child had lived nearly the entirety of his life in Arizona with the exception of temporary absences for trips to Michigan, California, Oregon, and Illinois. See MCL 722.1102(g). Consequently, as recently as early November 2022, which fell "within 6 months before the commencement of the proceedings," Arizona was clearly the child's home state, and under MCL 722.1201(1)(a), jurisdiction was proper in Arizona, where defendant continues to live. In these circumstances, when Arizona has not declined to exercise jurisdiction, the trial court erred by considering the significant connections test and by assuming jurisdiction in Michigan. See MCL 722.1201(1)(b); Nash v Salter, 280 Mich.App. 104, 110; 760 N.W.2d 612 (2008). On remand, the trial court shall enter an order dismissing the case for lack of jurisdiction.
This order has immediate effect. MCR 7.215(F)(2).
The Court does not retain jurisdiction.