Opinion
No. 336251
06-15-2017
MICHAEL ALLEN WHITE II, Plaintiff-Appellant, v. ABBY GARBER, Defendant-Appellee.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2016-847615-DC Before: SERVITTO, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
In this action under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., plaintiff appeals as of right the trial court's order dismissing his child custody complaint on the basis of lack of jurisdiction. We affirm.
Plaintiff argues that the trial court erred in concluding that it did not have jurisdiction where defendant had already commenced child-custody proceedings in Tennessee. We disagree.
While plaintiff frames his arguments in a manner that challenges the trial court's conclusion that Michigan is not the minor child's home state, his arguments ultimately pertain to the trial court's conclusion regarding its jurisdiction.
"The determination whether a trial court has subject-matter jurisdiction and issues of statutory construction present questions of law, which we review de novo." White v Harrison-White, 280 Mich App 383, 387; 760 NW2d 691 (2008). "However, 'the determination whether to exercise jurisdiction under the UCCJEA [is] within the discretion of the trial court, and would not be reversed absent an abuse of that discretion.' " Nash v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008), quoting Young v Punturo (On Reconsideration), 270 Mich App 553, 560; 718 NW2d 366 (2006). Such an abuse of discretion occurs when the trial court's decision falls outside "the range of principled outcomes[.]" Jamil v Jahan, 280 Mich App 92, 100; 760 NW2d 266 (2008).
"The UCCJEA prescribes the powers and duties of the court in a child-custody proceeding involving [Michigan] and a proceeding or party outside of this state . . . [.]" Cheesman v Williams, 311 Mich App 147, 151; 874 NW2d 385 (2015) (citation and internal quotations omitted). Like Michigan, Tennessee also relies on the UCCJEA for interstate child-custody jurisdiction questions: "The Uniform Child Custody Jurisdiction and Enforcement Act ('UCCJEA') is codified at Tennessee Code Annotated sections 36-6-201 to-243 (2001) and governs jurisdiction between Tennessee and other states over child custody proceedings." Button v Waite, 208 SW3d 366, 369 (Tenn, 2006). This Court has recognized that a state has "jurisdiction substantially in conformity with [the UCCJEA][,]" MCL 722.1206(1), where jurisdiction complies with MCL 722.1201(1), or the identical statute from the foreign state. Fisher v Belcher, 269 Mich App 247, 255; 713 NW2d 6 (2005). In the present case, Tennessee's virtually identical version of MCL 722.1201(1) is codified at Tenn Code Ann 36-6-216(a).
The applicable statute governing jurisdiction in this case is MCL 722.1201, which provides as follows:
We recognize that in Fisher, 269 Mich App at 253-254, this Court stated that "[b]efore a Michigan court makes an initial child custody determination, its determination is subject to whether an out-of-state child custody proceeding has already commenced[,]" and the Fisher Court highlighted the accompanying procedure set forth in MCL 722.1206. However, in Fisher, this Court made this ruling (1) in response to the plaintiff's argument on appeal that she had initiated legal proceedings first for purposes of determining jurisdiction under the UCCJEA, and, (2) in factual circumstances where both the Michigan court and a Missouri court had actively evaluated whether they had jurisdiction, and the Michigan trial court ultimately rendered a custody judgment in accordance with its jurisdiction. Fisher, 269 Mich App at 251, 253. The Michigan trial court subsequently entered an order declining jurisdiction in the case after determining Missouri was the more appropriate forum for the case. Id. at 251. Thus, Fisher is distinguishable from the instant case. Importantly, in Fisher this Court also recognized that MCL 722.1201(2) provides that MCL 722.1201(1) is the "exclusive jurisdictional basis for making a child-custody determination by a court of this state." Fisher, 269 Mich App at 260-261.
(1) Except as otherwise provided in [MCL 722.1204] a court of this state has jurisdiction to make an initial child-custody determination only in the following situations:
(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision (a), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under [MCL 722.1207] or [MCL 722.1208] and the court finds both of the following:
(i) The child and the child's parents, or the child and at least 1 parent or a person acting as a parent, have a significant connection with this state other than mere physical presence.
(ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships.
(c) All courts having jurisdiction under subdivision (a) or (b) have declined to exercise jurisdiction on the grounds that a court of this state is the more appropriate forum to determine the custody of the child under [MCL 722.1207] or [MCL 722.1208].
(d) No court of another state would have jurisdiction under subdivision (a), (b), or (c).
(2) Subsection (1) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(3) Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child-custody determination. [Footnotes omitted.]
The UCCJEA defines "home state" in relevant part as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child-custody proceeding." MCL 722.1102(g); Tenn Code Ann 36-6-205(7). Notably, in this case Michigan was not the minor child's "home state[,]" given that the minor child did not live in Michigan for six consecutive months. MCL 722.1102(g).
Pursuant to MCL 722.1201(1), if a minor child does not have a "home state" under the UCCJEA, jurisdiction should then be considered with respect to MCL 722.1201(1)(b). In order to establish jurisdiction pursuant to this statutory subsection, two things are required: "the child and at least 1 parent or a person acting as a parent, have a significant connection with [Michigan] other than mere physical presence" and "[s]ubstantial evidence is available in [Michigan] concerning the child's care, protection, training, and personal relationships." MCL 722.1201(1)(b). This Court has held that a "significant connection" with a state is present "where one parent resides in the state, maintains a meaningful relationship with the child, and, in maintaining the relationship, exercises parenting time in the state." White, 280 Mich App at 394.
The record reveals that at the time defendant initiated legal proceedings in Tennessee, she and the minor child were residing there, and had just moved back to Tennessee in October of 2016. The record reflects that defendant was solely in charge of the care and maintenance of the minor child, because plaintiff was in Michigan and had been enjoined from contacting defendant or the minor child after the trial court entered a personal protection order (PPO) following his violent and suicidal behavior with a loaded firearm in the presence of defendant. The PPO enjoined plaintiff from spending parenting time with the minor child. It also appears from the record that defendant and the minor child were also close to defendant's family and friends that lived in Tennessee. Accordingly, it is clear that defendant and the minor child had a significant connection to Tennessee, as opposed to Michigan, as contemplated by MCL 722.1201(b)(i). See also White, 280 Mich App at 394. The record also contained "[s]ubstantial evidence" regarding the minor child's "care, protection, training and personal relationships" in Tennessee. MCL 722.1201(1)(b)(ii). Accordingly, the trial court correctly concluded that it did not have jurisdiction of this matter pursuant to MCL 722.1201.
It appears that plaintiff is permitted to exercise supervised parenting time with the minor child pursuant to an order of the Tennessee court. To the extent that plaintiff asserts that the trial court's determination on the issue of jurisdiction will impact his ability to visit the minor child where the Michigan PPO restricts contact with the minor child, such arguments are not properly before this Court where plaintiff has not filed an appeal from the separate action involving the PPO.
In both the trial court and this Court, defendant points to MCL 722.1206(2), arguing that this statutory subsection required the trial court to confer with the Tennessee court before dismissing plaintiff's complaint on the basis of its lack of jurisdiction.
MCL 722.1206 provides, in pertinent part, as follows:
(1) Except as otherwise provided in [MCL 722.1204] a court of this state may not exercise its jurisdiction under this article if, at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court of another state having jurisdiction substantially in conformity with this act, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under [MCL 722.1207].
(2) Except as otherwise provided in [MCL 722.1204], before hearing a child-custody proceeding, a court of this state shall examine the court documents and other information supplied by the parties as required by [MCL 722 .1209]. If the court determines that, at the time of the commencement of the proceeding, a child-custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this act, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this act does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the child-custody proceeding. [Footnotes omitted; emphasis added.]
Our review of the statutory text confirms that this statutory provision applies when a Michigan court has jurisdiction pursuant to the UCCJEA. For example, MCL 722.1206(1) clearly states that "a court of this state may not exercise its jurisdiction" under certain delineated circumstances. As we have discussed above, the trial court, well-familiar with the procedural posture and facts of this case, observed that it did not have jurisdiction over this case. Therefore, where the trial court expressly found that it lacked jurisdiction, there would be little utility, as a procedural matter, for it to confer with the Tennessee court to determine the appropriate forum for this case as set forth in MCL 722.1206(2). This Court recognized the same principle in Cheesman, 311 Mich App at 158, in the context of reviewing a trial court's determination pursuant to MCL 722.1207, which allows a trial court to decline to exercise jurisdiction where Michigan is determined to be an inconvenient forum. Specifically, the Cheesman Court observed that where a trial court concludes that it does not have jurisdiction, it cannot "subsequently decline to exercise jurisdiction that it did not possess." Cheesman, 311 Mich App at 158. On this record, the trial court's decision to refrain from exercising jurisdiction did not amount to an abuse of discretion. Nash, 280 Mich App at 108.
We acknowledge that in Fisher, 269 Mich App at 255, this Court observed that where a child custody proceeding has been initiated in another state, a Michigan court must confer with the trial court of the other state. However, the facts of Fisher are distinguishable from the present case, where the trial court in Fisher initially determined that it had jurisdiction over the case. Id. at 250-251. Here, the trial court expressly and unequivocally decided that it did not have jurisdiction over the instant case. --------
Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood