Trial Court Can Consider Motion To Change Child’s Domicile While Appeal Is Pending

by: Matt Newburg

04/10/2018 08:08 AM EST
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While an issue in a custody case is being appealed, the trial court that presided over the matter retains jurisdiction and may consider a motion to change the domicile of the child, the Michigan Supreme Court has ruled.

In Safdar v Aziz, the Supreme Court explained that the Child Custody Act – specifically MCL 722.27(1) – authorizes the trial court’s continuing jurisdiction to modify or amend its previous judgments or orders. This is an exception to the Michigan Court Rules “otherwise provided by law,” the Supreme Court held.

According to the Supreme Court, it would be contrary to the plain language of the Child Custody Act to require a trial court to wait for the conclusion of an appeal before addressing a change in circumstances that would affect the best interests of the child.

Child Custody Act

MCL 722.27(1) provides that, if a custody dispute has been submitted to the trial court as an original action or has arisen incidentally from another action in the trial court or an order or judgment of the trial court, “for the best interests of the child the court may do 1 or more of the following: … (c) modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age.”

MCL 722.27(1) further says: “The court shall not modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

Meanwhile, the Michigan Court Rules regarding appellate procedure address a trial court’s authority while an appeal is pending. MCR 7.208(A) says that, after a claim of appeal is filed or leave to appeal is granted, a trial court may not set aside or amend the judgment or order appealed from, except:

1) by order of the Court of Appeals.

2) by stipulation of the parties.

3) after a decision on the merits in an action in which a preliminary injunction was granted.

4) as otherwise provided by law.

At issue in Safdar was whether the trial court still had jurisdiction to consider a motion to change the child’s domicile which was established by a custody award in a divorce judgment, while that underlying judgment was pending appeal. 

‘Lemmen’ Law

To answer the question presented in Safdar, the Michigan Supreme Court looked to its 2008 ruling in Lemmen v Lemmen.

The Lemmen Court held that the Legislature’s grant of continuing jurisdiction to modify child and spousal support orders in MCL 552.17(1) and MCL 552.28 satisfied the “otherwise provided by law” requirement of MCR 7.208(A)(4). According to the justices, the Lemmen Court “made clear” that another law need not grant jurisdiction specifically for judgments pending on appeal to qualify as an exception under MCR 7.208(A)(4). “[T]o require the trial court to wait to make modifications until after an appeal is completed is contrary to the plain language of the statutes and would defeat their purpose.”

The Supreme Court continued by explaining that, in Safdar, the Court of Appeals found that the rationale in Lemmen also applied to situations involving custody. However, the Court of Appeals further said that, because a motion for change of domicile is filed under MCL 722.31(4) of the Child Custody Act and not MCL 552.17, an additional step was needed to connect Lemmen’s statement about child-support modification to a dispute regarding domicile. According to the appeals court in Safdar, MCL 552.17(1) and the Child Custody Act had to be interpreted in light of each other because both related to the same person or thing. As a result, the Court of Appeals in Safdar held that a trial court may derive continuing jurisdiction over a motion for change in domicile from MCL 552.17(1), and that this jurisdiction also attaches when a motion involves custody.

“We mostly agree,” the Supreme Court said. “Lemmen’s reasoning applies to the Legislature’s broad grant of authority in the [Child Custody Act], but the circuit court’s jurisdiction to modify a final judgment with respect to the child custody dispute may be derived exclusively from MCL 722.27(1) …, without resort to MCL 552.17. As between two applicable provisions, we favor the more specific.”

Best Interests Of Child

Next, the Supreme Court noted that a motion for change of domicile filed under MCL 722.31(4) falls within the scope of a “child custody dispute,” as that term is used in MCL 722.27(1).

According to the justices, MCL 722.27(1) reflects the Legislature’s intent to protect the interests of children when there are changing circumstances by authorizing trial court jurisdiction until the child becomes an adult.

Further, MCL 722.27(1)(c) “specifically permits” a trial court to modify or amend its orders when proper cause is shown or when there has been a change in circumstances, the Supreme Court noted. “Its sole limiting principle is that the modification be in the best interests of the child. As in Lemmen, it would be contrary to the plain language of the [Child Custody Act] to require a court to wait for the conclusion of an appeal to address a change in circumstances that would affect the interests of the child.”

In conclusion, the Supreme Court held that MCL 722.27(1) authorizes a trial court’s continuing jurisdiction to modify or amend its previous judgments or orders, and that this is an exception to MCR 7.208(A) “otherwise provided by law.”

Therefore, the Supreme Court vacated the Court of Appeals decision to the extent that it derived jurisdiction from MCL 552.17, affirmed the result that was reached and remanded the case to the trial court.

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