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Safdar v. Aziz

Court of Appeals of Michigan

September 7, 2017

ZAID SAFDAR, Plaintiff-Appellee,
v.
DONYA AZIZ, Defendant-Appellant.

         Oakland Circuit Court Family Division LC No. 2016-839363-DM

          Before: O'Brien, P.J., and Jansen and Murray, JJ.

          PER CURIAM.

         Defendant appeals by leave granted[1] a March 24, 2017 order denying without prejudice defendant's motion to change domicile and relocate with the parties' daughter to Pakistan. The underlying facts are not in dispute.

         Plaintiff and defendant, both Pakistani citizens, were married in Pakistan on June 24, 2011, and relocated to the United States, where plaintiff resided with an employment visa. In 2015, defendant moved to Michigan to live with her aunt, while plaintiff continued to reside in Maryland. The couples' only daughter was born in Oakland County on January 1, 2016. The parties divorced on December 21, 2016. Pursuant to the judgment of divorce, the parties would share joint legal custody of the minor child while defendant would maintain sole physical custody. The divorce judgment contained a provision prohibiting the exercise of parenting time in any country not a party to the Hague convention. At that time, the prohibition applied to Pakistan. Challenging only the trial court's denial of her motion for attorney fees, defendant filed a claim of appeal from the divorce judgment. That appeal is pending before this Court in Docket No. 336590.

         In March 2017, defendant filed the motion to change domicile that is the subject of this appeal, expressing her desire to relocate with the minor child to Pakistan as soon as possible and claiming that Pakistan had completed steps to become a party to the Hague convention since entry of the judgment of divorce. Plaintiff objected, arguing that the trial court lacked authority to set aside or amend the judgment of divorce while defendant's appeal from the judgment of divorce was still pending before this Court. Defendant responded that her appeal was limited to the issue of attorney fees, and did not preclude the trial court's consideration of custody matters. The trial court adopted plaintiff's position and entered an order dismissing defendant's motion for change of domicile without prejudice, reasoning that pursuant to MCR 7.208(A), it lacked jurisdiction to modify any component of the judgment of divorce.

         Defendant filed a motion for reconsideration in the trial court, arguing that under MCR 7.208(A)(4), the trial court was not limited by the pending appeal from considering modification of the divorce judgment "as otherwise provided by law." Defendant argued that because MCL 722.27(1)(c) and MCL 522.17(1) permit a trial court to consider issues related to custody as they arise, the trial court did not need to wait for resolution of the pending appeal before it considered her motion for change of domicile on the merits. In support of her position, defendant cited our Supreme Court's holding in Lemmen v Lemmen, 481 Mich. 164, 167; 749 N.W.2d 255 (2008), where the Court specifically held that MCL 552.17(1) satisfied the exception of MCR 7.208(A)(4). The trial court denied defendant's motion, concluding that Lemmen's holding was limited to judgments concerning child or spousal support and did not extend to changes relating to custody or changes of domicile.

         On appeal, defendant argues that the trial court erred when it concluded that it lacked jurisdiction to consider the merits of her motion for change of domicile because the trial court was authorized to consider the issue of domicile under MCR 7.208(A)(4), MCL 722.27(1)(c) and MCL 552.17(1). We agree.

         "The proper interpretation and application of a statute presents a question of law that we review de novo." Petersen v Magna Corp, 484 Mich. 300, 306; 773 N.W.2d 564 (2009). "We interpret court rules using the same principles that govern the interpretation of statutes." Ligons v Crittenton Hosp, 490 Mich. 61, 70; 803 N.W.2d 271 (2011). "Our goal when interpreting and applying statutes or court rules is to give effect to the plain meaning of the text. If the text is unambiguous, we apply the language as written without construction or interpretation." Id. We also review de novo the question of a trial court's subject-matter jurisdiction. Clohset v No Name Corp, 302 Mich.App. 550, 559; 840 N.W.2d 375 (2013).

         In pertinent part, MCR 7.208(A) provides:

After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal 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 ...

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