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Safdar v. Aziz

Supreme Court of Michigan

March 27, 2018

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

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         SYLLABUS

         Zaid Safdar filed an action in the Oakland Circuit Court, Family Division, seeking a divorce from Donya Aziz. The court granted a judgment of divorce, which provided that the parties would share joint legal custody of their minor child and that defendant would have sole physical custody of the child. Defendant appealed the court's denial of her motion for attorney fees in relation to the judgment. While that appeal was pending in the Court of Appeals, defendant moved in the trial court for a change of domicile. The court, Lisa Langton, J., denied defendant's motion, reasoning that under MCR 7.208(A), it lacked the authority to modify the custody order while defendant's appeal of the attorney-fee award was pending in the Court of Appeals. The court rejected defendant's reliance on Lemmen v Lemmen, 481 Mich. 164 (2008)- which held that under MCL 552.17(1) and MCR 7.208(A)(4), a trial court may modify an order or judgment concerning child support or spousal support after a claim of appeal is filed or leave to appeal is granted-reasoning that Lemmen was limited to when a party sought to alter child and spousal support awards while an appeal was pending and did not apply to changes in domicile. The court also denied defendant's motion for reconsideration. Defendant applied for leave to appeal in the Court of Appeals, which granted the application. The Court of Appeals, O'Brien, P.J., and Jansen and Murray, JJ., reversed in a per curiam opinion, holding that Lemmen also applied to judgments concerning the care and custody of children. 321 Mich.App. 219 (2017). Plaintiff sought leave to appeal in the Supreme Court.

         In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal and without hearing oral argument, held:

         A circuit court has jurisdiction to consider a motion to change the domicile of a minor child established by a custody award in a divorce judgment while that underlying judgment is pending on appeal. MCL 722.27(1)(c)-a provision of the Child Custody Act (CCA), MCL 722.21 et seq., governing circuit courts' powers to resolve custody disputes-is an exception otherwise provided by law to the rule in MCR 7.208(A) that a trial court may not amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted.

         1. MCR 7.208(A) states that a trial court may not set aside or amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted except in certain situations, including, under MCR 7.208(A)(4), as otherwise provided by law. Lemmen held that the Legislature's grant of continuing jurisdiction to modify child and spousal support orders in divorce proceedings in MCL 552.17(1) and MCL 552.28 satisfies the "otherwise provided by law" requirement of MCR 7.208(A)(4). In so holding, Lemmen 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). Rather, a statute satisfies MCR 7.208(A)(4) when the Legislature has authorized continuing jurisdiction to amend or modify a final judgment. As Lemmen explained, the authorization in MCL 552.17(1) to amend or modify a judgment "as the circumstances of the parents and the benefit of the children require" suggested that the purpose of allowing modification of a final judgment regarding child support was to ensure the welfare of the children when the circumstances of the parents or the needs of the children have changed, and therefore requiring the trial court to wait to make modifications until after an appeal was completed would be contrary to the plain language of the statutes and would defeat their purpose.

         2. The Court of Appeals erred to the extent it concluded that a circuit court may derive continuing jurisdiction over a motion for change in domicile only from MCL 552.17(1) rather than directly from MCL 722.27(1), and that portion of the decision was vacated. While Lemmen's reasoning applies to the Legislature's broad grant of authority in the CCA, 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) of the CCA, which applies more specifically to this situation than MCL 552.17 and is therefore favored. A motion for change of domicile brought under MCL 722.31(4) falls within the scope of a "child custody dispute" as the term is used in MCL 722.27(1). MCL 722.27(1) reflects the Legislature's intent to protect the interests of children in the face of changing circumstances by authorizing jurisdiction in the circuit court until the child reaches adulthood. MCL 722.27(1)(c) specifically permits the circuit court to modify or amend its orders when proper cause is shown or when there has been a change of circumstances. 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 CCA 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. Accordingly, MCL 722.27(1) authorizes the continuing jurisdiction of a circuit court to modify or amend its previous judgments or orders and is an exception to MCR 7.208(A) otherwise provided by law.

         Affirmed in part and vacated in part; case remanded to the Oakland Circuit Court for further proceedings.

         BEFORE THE ENTIRE BENCH

          OPINION

          Per Curiam.

         At issue in this case is whether a circuit court has jurisdiction to consider a motion to change the domicile of a minor child established by a custody award in a divorce judgment while that underlying judgment is pending on appeal. To answer that question, we must determine whether MCL 722.27(1)(c)-a provision of the Child Custody Act (CCA), MCL 722.21 et seq., governing circuit courts' powers to resolve custody disputes-falls under an exception to the rule in MCR 7.208(A) that a trial court may not amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted. In lieu of granting leave to appeal, we affirm the result reached by the Court of Appeals and hold that MCL 722.27(1) is an exception "otherwise provided by law" under MCR 7.208(A)(4).

         MCR 7.208(A) provides:

Limitations. 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 ...

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