Markle vs. Markle

Recent Family Law Developments

Case: Markle v. Markle (Unpublished) [click links for full text]

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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