HERE Oakland County Child Custody and child support as discussed by Terry Bankert a Flint Divorce Lawyer. To talk to a divorce Lawyer about your family law issues call 810-235-1970
What follows is principally Oakland Circuit Court ,LC No. 2007-736726-DC, OLGA GENNADYEVNA DEWALD, Plaintiff-Appellee, JEROME WESTFIELD DEWALD, Defendant-Appellant. State of Michigan Court of Appeals, UNPUBLISHED ,May 25, 2010 ,,v No. 294094 ,Before: MARKEY, P.J., and ZAHRA and GLEICHER, JJ. ,PER CURIAM.
Note this opinion has been altered for media presentation see original article at [1].
FATHER Defendant appeals as of right from a n OAKLAND circuit court order granting his motion for relief from a default judgment of filiation, CHILD custody, CHILD parenting time, and child support.
We affirm. AND AGREE WITH THE OAKLAND COUNTY COURT
DIVORCED IN RUSSIA
In June 2006, the parties divorced in Russia.
MOTHER NEEDS ENFORCEABLE MICHIGAN ORDER
In July 2007, MOTHER plaintiff filed a complaint in Michigan seeking an order awarding her custody of the parties’ two minor children and child support.
FATHER ON PAROL THOUGHT TO HAVE RETURNED TO RUSSIA
According to the complaint, defendant “was on parole for larceny by conversion and is
suspected to have illegally moved back to Russia.”
MOTHER TRIED TO SERVE AT MICHIGAN ADDRESS
Plaintiff tried unsuccessfully serving the summons and complaint on defendant at an address in East Lansing.
COURT AUTHORIZES ALTERNATE SERVICE
In November 2007, the circuit court authorized alternate service by posting in the Oakland County courthouse and publication in the Oakland County Legal News.
THREE WEEK PROCESS
After posting and publication took place over the course of three weeks in December 2007, on January 24, 2008 plaintiff filed an application for a default of defendant, which the court clerk entered the same day.
02/29/2008 COURT ENTERS A DEFAULT JUDGEMENT
On February 29, 2008, the circuit court entered a default judgment of filiation, custody, parenting time and child support.
05/2009 COUNRT ENTER A BENCH WARRANT RE: UNPAID CHILD SUPPORT OVER $10,000
In early May 2009, the circuit court ordered that a bench warrant issue for defendant’s
arrest on the ground that he had failed to appear at a show cause hearing concerning his unpaid
child support, which exceeded $10,000.
05/2009 FATHER PRESENTS HIMSELF AND WARRANT LIFTED
Later in May 2009, the circuit court discharged the bench warrant after defendant had appeared “in friend of the court” on May 18, 2009.
FATHERS SAYS THERE SHOULD NOT HAVE BEEN AN ORDER HE WAS NOT NOTIFIED
In July 2009, defendant moved for relief from judgment under MCR 2.612, arguing that he never
received notice of plaintiff’s complaint or the default judgment, …
FATHER SAYS MOM LIED SHE KNEW WHERE HE WAS, IN RUSSIA
and that plaintiff fraudulently misrepresented to the court that she did not know his address in Moscow. In an August 2009 addendum to the motion for relief from judgment, defendant insisted that the default judgment against him “[wa]s void for lack of personal jurisdiction.”
COURT AFTER FOUND MOTHER KNEW WHERE HE WAS
After a lengthy hearing, the circuit court on August 12, 2009 granted defendant relief from judgment pursuant to MCR 2.612(C)(1)(f), finding that plaintiff knew defendant’s address in Moscow but did not disclose it to the court or attempt to serve him there, despite ,
(1) having many contacts with defendant
between the filing of the Michigan custody action and the circuit court’s entry of the default
judgment, and
(2) serving defendant successfully at his Moscow address in relation to a lawsuit
initiated in Russia.
THE CIRCUIT COURT ORDER
The circuit court’s order read, “The relief from judgment is granted. Support
arrearage and custody and parenting time provision is set aside. There is no child support
arrearage. This order shall be presented to the U.S. Embassy for return and issuance of passport.
Retroactive support is reserved.”1
FATHERS SAYS COURT FOUND HIM THE WINNER AND DID NOT GIVE HIME THE PRIZE.
Defendant avers on appeal that the circuit court failed to recognize the nullity of its
default judgment, its lack of personal jurisdiction over him, its erroneous reservation of the
retroactive child support issue, and its error in not granting relief under MCR 2.612(C)(1)(d)
instead of subrule (f).
THE MICHIGAN COURT OF APPEALS IS REVIEWING TO DETERMINE IF THE OAKLAND COUNTY CIRCUIT COURT MADE A MISTAKE
We review for an abuse of discretion a trial court’s ruling on a motion for
relief from judgment. Heugel v Heugel, 237 Mich App 471, 478; 603 NW2d 121 (1999). A trial
court abuses its discretion only when it selects a decision that falls outside the range of
reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
We review de novo issues of statute and court rule application and
interpretation, constitutional issues, and whether a court possesses personal jurisdiction over a
litigant. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); In re Terry, 240 Mich
App 14, 20; 610 NW2d 563 (2000); In re Hawley, 238 Mich App 509, 511; 606 NW2d 50
(1999).
Under MCR 2.612(C), the following circumstances may warrant a grant of relief from a
judgment:
(1) On motion and on just terms, the court may relieve a party or the
legal representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other
misconduct of an adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the
judgment.
(2) The motion must be made within a reasonable time, and, for the
grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the
judgment, order, or proceeding was entered or taken. A motion under this subrule
does not affect the finality of a judgment or suspend its operation.
(3) This subrule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding; to
grant relief to a defendant not actually personally notified as provided in subrule
(B); or to set aside a judgment for fraud on the court.
THE COURT OF APPEALS SAID THE LOWER COURT CAN DESIGN THE RELIEF FROM JUDGEMENT, THE CASE DOES NOT JUST GO AWAY
We conclude that the circuit court did not abuse its discretion in granting defendant relief
from judgment pursuant to MCR 2.612(C)(1)(f), and that the court properly continued to
exercise personal jurisdiction over defendant.
THE COURT DID RECOGNIZE THE NULLITY AND ELIMATED ARREARAGES
Contrary to defendant’s argument, the circuit court did not refuse to recognize the nullity of the default judgment against him. “It is well settled that judgments that have been set aside are nullities.” Smith v MEEMIC Ins Co, 285 Mich App 529, 532; 776 NW2d 408 (2009).
As reflected in the language of the circuit court’s August
12, 2009 order, the court remained well aware that in granting defendant relief from the February
2008 default judgment it was rendering the default judgment a nullity;
THE COURT CONTINUED TO EXPLAIN
A. as we have noted, the court ordered that it was setting aside the default judgment’s “[s]upport arrearage and custody and parenting time provision[s],” and that
B.“[t]here is no child support arrearage.”
THE COURT THEN GAVE THE PARTIES A NEW START TO LITIGATE THE ISSUES
At the hearing, the circuit court additionally set the matter for trial and instructed the parties to begin discovery and negotiations concerning the issues of child support and custody.
THE OAKLAND COUNTY FAMILY COURT USED THE RIGHT RULES
Also contrary to defendant’s position on appeal, the circuit court properly invoked MCR
2.612(C)(1)(f) as the basis for granting him relief from the default judgment. Generally, to
justify a court’s grant of relief under subrule (f), three requirements must exist:
“(1) the reason for setting aside the judgment must not fall under subsections a through e,
(2) the substantial rights of the opposing party must not be detrimentally affected if the judgment is set aside, and
THE COURT DOES NOT HAVE TO COMMIT AN INJUSTICE TO SOLVE AN INJUSTICE
(3) extraordinary circumstances must exist that mandate setting aside the judgment in order to
achieve justice.” Heugel, 237 Mich App at 478-479. However, the Court in Heugel, id. at 481,
reaffirmed that “a trial court may properly grant relief from a judgment under MCR
2.612(C)(1)(f), even where one or more of the bases for setting aside a judgment under
subsections a through e are present, when additional factors exist that persuade the court that
injustice will result if the judgment is allowed to stand.”
THE OAKLAND CIRCUIT COURT PROPERLY CRAFTED A FAIR DECISION BASED UPON THEIR EXPIERENCE.
“The trial courts must be empowered to draw from their long experience, both with the particular case and from the bench, to determine whether any variables in the case warrant th[e] extraordinary relief” afforded in MCR 2.612(C)(1)(f). Id. at 480, quoting Kaleal v Kaleal, 73 Mich App 181, 189; 250 NW2d 799
(1977).
Subsection (f) invests “the court with a grand reservoir of equitable power to do justice
in a particular case and vests power in courts adequate to enable them to vacate judgments
whenever such action is appropriate to accomplish justice.” Heugel, 237 Mich App at 481
(internal quotation omitted).
BUIT FATHER SAID HE NEVER GOT THE PAPERS , HIS PAROL AGENT TOLD HIM
Defendant testified that he never received service of any proceedings in plaintiff’s
Michigan custody action, and asserted in an affidavit that he had no knowledge of the case until
his parole officer in Michigan apprised him of it.
MOTHER SAYS SHE TOLD HIM IN 12/2008
Plaintiff estimated that she first mentioned the Michigan custody case to defendant in December 2008.
THE PARTIES AHD LIVED IN TWO LOCATIONS IN RUSSIA
The parties’ testimony agreed that over the course of their marriage, they lived at two primary locations in Moscow.
MOTHER SAID HE GOT THE PAPERS AT ONE OF THE ADDRESSES
Defendant recounted that he had lived at one of these locations as his permanent address between August
2006 and September 2008 and from May 2009 to the present; plaintiff confirmed that in October
2007 she had commenced litigation against defendant in Russia and that her Russian attorney
achieved service of the complaint on defendant at one of the two Moscow addresses they had
shared. Plaintiff recalled that she had forwarded to her counsel in the Michigan custody matter
the two addresses likely occupied by defendant in Moscow.
THE PARTIES HAD COMMUNICATION BUT MOTHER NEVER BROUGHT UP WHAT SHE WAS DOING IN MICHIGAN.
The parties did not dispute that over the course of repeated contacts, by email and otherwise, between 2006 and May 2008, plaintiff never mentioned to defendant the Michigan custody action or the default judgment.
IT WOULD HAVE BEEN UNJUST TO LET THE DEFAULT STAND
Given the ample evidence in this case supporting the circuit court’s findings that plaintiff had neglected to
properly serve defendant, despite possessing knowledge of his likely whereabouts that she did
not share with the court, an injustice would result if the court permitted the default judgment to
stand. Consequently, the circuit court acted within its discretion in granting defendant relief
under MCR 2.612(C)(1)(f).
HERE IS THE POINT FATHER DID NOT GET THE ORIGIONAL PAPER WORK SO THE ORDER DERIVED FROM THAT MUST FALL. BUT BY APPEARING TO PROTEST THE JUDGMENT HE IN FACT HAS FALLEN UNDER THE JURISDICTION OF THE COURT THAT CAN NOW MOVE FORWARD.
We reject defendant’s contention that the circuit court lacked personal jurisdiction over
him because he never received service of process. Our review of the record reveals that the
circuit court possessed personal jurisdiction on the basis of defendant’s general appearances in
the court.
FATHER ENTERD A GENERAL APPEARENCE
A party who enters a general appearance and contests a cause of action on
the merits submits to the court’s jurisdiction and waives service of process
objections. Generally, any action on the part of a defendant that recognizes the
pending proceedings, with the exception of objecting to the court’s jurisdiction,
will constitute a general appearance.
FATHER CREATED AN APPEARANCE ON THE FILE
Only two requirements must be met to render an act adequate to support the inference that there is an appearance:
(1) knowledge of the pending proceedings and (2) an intent to appear.
FATHER THEN SUBMITTED TO THE COURTS JURISDICTION OR CATCH -22
A party that submits to the court’s jurisdiction may not be dismissed for not having received
service of process. MCR 2.102(E)(2). [Penny v ABA Pharmaceutical Co (On
Remand), 203 Mich App 178, 181-182; 511 NW2d 896 (1993), overruled in part
on other grounds in Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 293; 731
NW2d 29 (2007).]
FATHERS PROCESS
In this case, before defendant sought relief from the default judgment and contested
plaintiff’s failure to serve him,
(1) he appeared at the friend of the court on May 18, 2009,
(2) he filed a motion to reduce the amount of child support the circuit court had ordered him to pay in
the default judgment,
(3) he requested a waiver of motion filing fees,
(4) he and plaintiff moved to opt out of friend of the court services,
(5) he negotiated a proposed stipulated order with plaintiff regarding child support, and
(6) he appeared via telephone at a July 8, 2009 hearing and expressed his desire to stipulate to a proposed order on the record, although the circuit court refused to allow the parties to opt out of friend of the court services. These actions establish that defendant had knowledge of the custody proceedings, intended to appear, and in fact made general appearances, thus submitting to the circuit court’s jurisdiction. Penny, 203 Mich App at 181-182. Moreover, at the hearing on the motion for relief from the default judgment, defense
counsel repeatedly conceded that the circuit court had personal jurisdiction over defendant and
that he wanted to continue litigating the issues of parenting time, child support, and custody.
ONCDE YOU ALLOW JURISDICTION TO ATTACH YOU CANNOT OBJECT TO IT.
Defense counsel’s affirmations of the circuit court’s personal jurisdiction constitute a waiver to
any present objections by defendant, which extinguishes any personal jurisdiction-related error.
Lease Acceptance Corp v Adams, 272 Mich App 209, 229; 724 NW2d 724 (2006) (“Challenges
to personal jurisdiction may be waived by either express or implied consent.”) (internal quotation
omitted); Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App 241, 252; 673 NW2d
805 (2003) (noting that “[a] party may not take a position in the trial court and subsequently seek
redress in an appellate court that is based on a position contrary to that taken in the trial court”)
(internal quotation omitted).
WHAT THE COURT DIOD WAS TO SET ASIDE A JUDGEMENT REACHED BY FRAUD
Although defendant submits that the circuit court erred in relying on Penny, 203 Mich
App 178, defendant appears to confuse the circuit court’s holdings. The court set aside the
default judgment against defendant on the basis of its conclusion that as a result of fraud by
plaintiff, defendant did not receive proper service of the complaint or notice of the default and
default judgment against him.
ONCE THE PRIOR ORDER SETR ASDIE THE COURT HAS CONTINUING JURISDICTION
The circuit court did not find that, because defendant had
appeared after entry of the default judgment, he made an appearance with respect to that default
judgment. Instead, the circuit court merely and correctly determined that it had continuing
subject-matter jurisdiction over the custody issue, MCL 722.26; Harvey v Harvey, 470 Mich
186, 192; 680 NW2d 835 (2004), and personal jurisdiction over defendant after he made general
appearances in the circuit court.
FATHER SAYS THE COURT VIOLATED HIS DUE PROCESS
Defendant also claims that the circuit court violated his due process rights..[FOOTE NOTE 2]
The failure of service of the complaint or default and default judgment on defendant deprived him of
procedural due process because the failure of service prevented him from having an opportunity
to be heard concerning the child custody, support, and parenting time matters. Krueger v
Williams, 410 Mich 144, 157-159; 300 NW2d 910 (1981).
LACK OF DUE PROCESS SET ASDIE THE JUDGEMENT BUT THE CASE CONTINUES
Although the initial lack of service deprived defendant of due process, the circuit court ultimately set aside the default judgment and directed that the parties litigate the issues anew. And, as noted, defendant made general appearances and submitted to the circuit court’s personal jurisdiction over him. Penny, 203 Mich
App at 181-182; see also In re Slis, 144 Mich App 678, 683; 375 NW2d 788 (1985) (“A party
who enters a general appearance and contests a cause of action on the merits submits to the
jurisdiction of the court and waives service of process objections.”).
The only case defendant cites in support of his due process argument, Armstrong v
Manzo, 380 US 545; 85 S Ct 1187; 14 L Ed 2d 62 (1965), does not apply to the instant
circumstances. In Armstrong, id. at 547-548, a court terminated the petitioner’s parental rights to
his daughter without notice in the course of an adoption proceeding.
The United States Supreme Court held that the lack of notice combined with the resultant burden of proof imposed on the petitioner when he eventually sought relief combined to violate his constitutional rights:
Had the petitioner been given the timely notice which the Constitution
requires, the . . . moving parties . . . would have had the burden of proving their
2 Defendant neglected to set forth this issue in his appellate statement of questions presented,
rendering it technically not properly before the Court. MCR 7.212(C)(5); English v Blue Cross
Blue Shield of Michigan, 263 Mich App 449, 459; 688 NW2d 523 (2004).
case as against whatever defenses the petitioner might have interposed. It would
have been incumbent upon them to show not only that [the adoptive father] met
all the requisites of an adoptive parent under Texas law, but also to prove why the
petitioner’s consent to the adoption was not required. Had neither side offered
any evidence, those who initiated the adoption proceedings could not have
prevailed.
Instead, the petitioner was faced on his first appearance in the courtroom
with the task of overcoming an adverse decree entered by one judge, based upon a
finding of nonsupport made by another judge. As the record shows, there was
placed upon the petitioner the burden of affirmatively showing that he had
contributed to the support of his daughter to the limit of his financial ability over
the period involved. The burdens thus placed upon the petitioner were real, not
purely theoretical. For it is plain that where the burden of proof lies may be
decisive of the outcome. Yet these burdens would not have been imposed upon
him had he been given timely notice in accord with the Constitution. [Id. at 551-
552 (internal quotation omitted).]
HERE FATHER HAD THE SLATE WIPED CLEAN
Here by contrast, defendant has already obtained relief in the form of wiping the slate clean in
these custody proceedings through the circuit court’s grant of his motion for relief from the
default judgment. Because defendant has the opportunity to litigate the custody issues anew, his
due process rights remain intact.
THE OAKLAND COURT WAS FAIR
With respect to defendant’s suggestions that the circuit court should not have granted
relief under MCR 2.612(C)(1)(f) “if an equally plausible alternative exists that will provide the
same result,” and that the circuit court harbored a bias against him, defendant has abandoned
these claims by neglecting to refer to binding authority in support of them. Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959). Furthermore, regarding defendant’s judicial bias
claim, we have discerned nothing in the record tending to substantiate this assertion, and his bias
claim has become moot given that a new judge has been appointed to preside over his case.
Detroit v Ambassador Bridge Co, 481 Mich 29, 50; 748 NW2d 221 (2008).3
Affirmed.
MOTHER WON FATHER HAS TO PAY COSTS
Costs to plaintiff as the prevailing party on appeal. MCR 7.219(A).
Posted here by
Terry Bankert
http://attorneybankert.com
Of
http://dumpmyspouse.com
see
[1]
Original Opinion
http://www.icle.org/contentfiles/mlo/unpublished/20100525_294094.pdf
FOOT NOTE 1 In a subsequent motion for reconsideration, defendant maintained that the circuit court had
mistakenly granted relief under MCR 2.612(C)(1)(f), instead of subrule (d), because the court
never obtained personal jurisdiction over him. The circuit court denied the motion, discerning no
palpable error in its prior ruling.
FOOT NOTE 3 To the extent that defendant also urges this Court to peremptorily reverse the circuit court
pursuant to MCR 7.211(C)(4), we decline to consider this proposal because defendant did not
properly raise it in a motion before this Court, MCR 7.211(A)(2), (3), and he offers no authority
establishing the propriety of peremptory reversal
CAP HEADLINES ARE from Terry Bankert along with (trb), other extnal citations may be used.
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