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Recent Family Law
Developments
Case:
Markle v. Markle (Unpublished) [click links for full text
(requires Adobe Reader)]
Decided:
August 14, 2007
Facts:
Plaintiff filed his complaint for divorce and petition for temporary
custody of the children in Michigan on May 28, 2003, but omitted the
affidavit
required by the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA). The Van Buren Friend of the Court mailed
plaintiff forms on June 2, 2003 to rectify the omission. On June 4,
2003, Defendant filed an ex parte application for a personal
protection order in Texas. The Texas court granted the protection
order, which was served upon plaintiff on June 12, 2003. The Friend
of the Court received Plaintiff's completed UCCJEA affidavit on June
16, 2003.
The
divorce was scheduled for trial on January 12, 2004. On that date,
the parties’ attorneys told the court that although they had yet to
agree on a division of property, they had reached a
settlement on all but two aspects of the primary issues of custody
and parenting time with the minor children. The Michigan trial
court accepted the parties' agreement, made a ruling, and entered a
judgment of divorce on October 3, 2005. The judgment incorporated
the parties' stipulation regarding custody and
parenting time.
Plaintiff
appealed and defendant cross-appealed.
First,
Defendant argued that the Michigan custody proceeding was improperly
commenced because plaintiff initially omitted the UCCJEA affidavit
required by
MCL
722.1209 and
MCR 3.206(A)(3). Defendant also argued that the Michigan
custody proceeding was improperly commenced because plaintiff failed
to disclose the Texas protective order proceeding when he finally
filed his UCCJEA affidavit.
According
to defendant, the Michigan proceeding was never properly commenced,
so Michigan could not be the children’s
home state
because they did not reside in Michigan with plaintiff “at least six
consecutive months immediately before the commencement of the
proceeding" as required by the UCCJEA.
Finally,
defendant argued that although Texas lacked jurisdiction to make an
initial child custody determination under MCL 722.1201(1)(a), (b),
(c), or (d), Texas had 'temporary emergency jurisdiction' under
Texas' enactment of the UCCJEA.
Analysis: The Court of Appeals disagreed with each of
Defendant's claims. It held that the Michigan action was
properly commenced because plaintiff filed his UCCJEA affidavit June
16, 2003. The court noted when required information is omitted,
MCL
722.1209(2) allows a trial court to stay a proceeding until the
information is provided.
As to
plaintiff's alleged failure to disclose the Texas proceeding in the
Michigan filing, The Court of Appeals held: "The record is unclear
whether, plaintiff was aware of the Texas proceeding at the time he
executed the affidavit. It is true that the FOC received
plaintiff’s UCCJEA affidavit on Monday, June 16, 2003, after
plaintiff had been served a copy of the temporary ex parte order on
Thursday, June 12, 2003. But if one allows time for mailing and
processing and considers that a weekend intervened, defendant is
unable to prove that plaintiff executed his UCCJEA affidavit after
receiving notice of the Texas protective order proceeding."
The Court
then turned to plaintiff's appeal. The parties had stipulated to
certain custody and parenting time terms. One of those terms was
that “while the defendant remains in Michigan,” she would have
regular parenting time on alternate weekends and alternating
holidays. The Court Of Appeals observed that while stipulations are
agreements between the parties and are generally construed as
contracts, contract principles do not govern child custody matters.
In
Harvey v Harvey, 470 Mich 186, 192; 680 NW2d 835 (2004),
the Michigan Supreme Court held that “where the parties have agreed
to a custody arrangement,” the trial court is not required “to
conduct a hearing or otherwise engage in intensive fact-finding.”
Instead, the court must “satisfy itself concerning the best
interests of the children. When the court signs the order, it
indicates that it has done so. A judge signs an order only after
profound deliberation and in the exercise of the judge’s traditional
broad discretion.”
The Court
of Appeals opined that the trial court had in fact satisfied itself
that the agreement comported with the best interests of the minor
children. According to the Court: "With respect to the
alternate weekend and holiday parenting time, we conclude that no
basis exists to reverse the trial court. Plaintiff has not
established that the trial court clearly erred in determining the
parties had not made their custody and parenting time stipulation
contingent on defendant’s moving out of Michigan at the end of the
2004-2005 school year. Moreover, plaintiff makes no argument that
the trial court’s ruling is contrary to the best interests of the
children. Consequently, we find no abuse of discretion in the trial
court’s rulings regarding custody or parenting time."
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