Paul McGrath v. Julia Bressette ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PAUL MCGRATH, UNPUBLISHED
June 16, 2022
Plaintiff-Appellee,
V No. 358965
Leelanau Circuit Court
JULIA BRESSETTE, LC No. 21-010665-DC
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and M. J. KELLY and YATES, JJ.
PER CURIAM.
This is an interlocutory appeal in a child-custody action filed in Leelanau Circuit Court.
Defendant moved to dismiss the complaint, arguing that the Grand Traverse Band of Ottawa and
Chippewa Indians Tribal Court (the Tribal Court) possessed superior jurisdiction. The circuit court
denied the motion. After granting leave to appeal,1 we reverse and remand.
I. FACTS
Plaintiff commenced this action in circuit court to establish custody, support, and parenting
time in connection with the parties’ several minor children.2 The caption of plaintiff’s complaint
reflects as follows:
There is a pending action in the family division of the Tribal Court for the
Grand Traverse Band of Ottawa and Chippewa Indians, that being case number
2021-3268-CV-CW, between the parties who are the parties to this action and are
the subject of this Complaint.
1
McGrath v Bressette, unpublished order of the Court of Appeals, entered January 26, 2022
(Docket No. 358965).
2
Apparently, the parties were never married, but plaintiff’s paternity is not contested.
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The body of the complaint adds that, “[p]ursuant to an Order in that case, the children are removed
from the care of Defendant Mother and placed in the care of Father.” Defendant admits that the
action in the Tribal Court was a child-protective one.3 In this case, defendant, in lieu of answering,
filed a limited appearance through counsel in order to move the circuit court to dismiss on the
ground that it lacked jurisdiction.
At the hearing on the motion, defendant’s counsel asserted that the parties were enrolled
members of the Grand Traverse Band of Ottawa and Chippewa Indians (the Tribe), that the subject
children “are all either enrolled or eligible for enrollment,” and that “[t]hey all live on the
reservation.” Counsel argued that the circuit court lacked jurisdiction over the custody matter
because a custody proceeding was pending in the Tribal Court at the time plaintiff filed his
complaint, citing the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), MCL
722.1101 et seq. Counsel further argued that “the laws of the state of Michigan do not reach into
. . . reservation territory over reservation matters,” such that the circuit court lacked even
concurrent jurisdiction with the Tribal Court.
When the circuit court asked if the child-protective proceeding was still pending in the
Tribal Court, counsel for defendant answered that “[i]t was dismissed yesterday with prejudice,”
but argued that “it was pending at the time that this complaint was filed, which is what the
UCCJEA looks at.”
Counsel for plaintiff stated that plaintiff filed the custody case in circuit court at the “urging
and direction” of Tribal authorities, who encouraged him to do so in order that the circuit court
“could enter custody orders that would then make the abuse and neglect matter a [moot] point,”
and that “[t]hat’s why that case was dismissed yesterday.”
Counsel for defendant encouraged the circuit court to contact the Tribal Court. According
to defense counsel, the Tribal Court “made it crystal clear that tribal law applies to tribal members
on the tribal reservation in tribal court” and “would absolutely be ready to accept this jurisdiction.”
Counsel for plaintiff agreed that communication between the judges was in order. The circuit
court stated that it would call the Tribal Court and then issue an order on the motion to dismiss.
A few days after the hearing, the circuit court entered an order denying defendant’s motion
to dismiss. The order stated in part that:
A conversation between [the circuit court] and [the Tribal Court judge] occurred on
September 16, 2021. This Court sent the [Tribal Court] a copy of all the pleadings
filed herein along with the citations offered by Defendant during oral argument
regarding the issue of [the Tribe] having exclusive jurisdiction. On September 22,
2021 [the Tribal Court judge] indicated via email that the [Tribal Court] does not
3
Not in dispute is that this child-protective proceeding was a child-custody proceeding for present
purposes. See MCL 722.1102(d) (defining “child-custody proceeding” as “a proceeding in which
legal custody, physical custody, or parenting time with respect to a child is an issue,” including “a
proceeding for . . . neglect, abuse, dependency, guardianship, . . . termination of parental rights,
and protection from domestic violence, in which the issue may appear”).
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have exclusive jurisdiction and has no concerns regarding the matter proceeding in
the state court. On September 28, 2021, [the Tribal Court judge] also reported via
email to this Court that the [Tribal Court] would not be a more appropriate forum.
The circuit court added that “[i]t would be presumptuous of this Court to challenge [the Tribal
Court’s] determination that the [Tribal Court] does not have exclusive jurisdiction,” noted that
“there is no longer any case pending in the [Tribal Court],” and opined that “witnesses would not
be inconvenienced by traveling to the Leelanau Government Center versus the [Tribal Court] as
they are approximately 6 miles apart.” The order declared that the “Leelanau County Circuit
Court, Family Division will maintain jurisdiction and conduct all proceedings in this filing.”
A few days later, the circuit court entered an order regarding custody and parenting time.
On appeal, defendant argues that the circuit court erroneously exercised operational
jurisdiction in this matter because a related proceeding was pending in the Tribal Court when the
instant action commenced. She also argues that the circuit court erroneously exercised personal
jurisdiction over defendant and the subject children, whose home state was the Tribe, not the state
of Michigan.
II. ANALYSIS
“Courts are bound to take notice of the limits of their authority[.]” Fox v Bd of Regents,
375 Mich 238, 242; 134 NW2d 146 (1965) (quotation marks and citation omitted). The existence
of jurisdiction presents a question of law that this Court reviews de novo. Adams v Adams, 276
Mich App 704, 708-709; 742 NW2d 399 (2007). Issues of statutory interpretation are also
reviewed de novo. Thompson v Thompson, 261 Mich App 353, 358; 683 NW2d 250 (2004).
The parties agree that neither the federal Indian Child Welfare Act, 25 USC 1901 et seq.,
nor the Michigan Indian Family Preservation Act, MCL 712B.1 et seq., comes into play in this
case. The parties likewise agree that the issue is whether, under the UCCJEA, the circuit court
erred by exercising jurisdiction after a custody case had been commenced in the Tribal Court, and
whether the court erred by making an initial custody determination without articulating a basis for
concluding that Michigan was the children’s home state, or that the Tribal Court had effectively
yielded its jurisdiction. We answer both questions in the affirmative, and each answer provides an
independent ground for reversal.
A. INITIAL DETERMINATION
MCL 722.1201(1) provides “the exclusive jurisdictional basis for making a child-custody
determination by a court of this state.” MCL 722.1202(2). The inquiry under that statute involves
determining the home state of the subject children. “Home state” for this purpose is defined as
the state in which a child lived with a parent or person acting as a parent for at least
6 consecutive months immediately before the commencement of a child-custody
proceeding. In the case of a child less than 6 months of age, the term means the
state in which the child lived from birth with a parent or person acting as a parent.
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A period of temporary absence of a parent or person acting as a parent is included
as part of the period. [MCL 722.1102(g).]
MCL 722.1104(2) directs Michigan courts to “treat a tribe as a state of the United States.”
A “[t]ribe” is “an Indian tribe or band, or Alaskan native village, that is recognized by federal law
or formally acknowledged by a state.” MCL 722.1102(q). By all accounts, the Grand Traverse
Band of Ottawa and Chippewa Indians is a federally recognized tribe.
MCL 722.1201(1) provides:
Except as otherwise provided in [MCL 722.12044], a court of this state has
jurisdiction to make an initial child-custody determination only in the following
situations:
(a) This state is the home state of the child on the date of the commencement
of the proceeding, or was the home state of the child within 6 months before the
commencement of the proceeding and the child is absent from this state but a parent
or person acting as a parent continues to live in this state.
(b) A court of another state does not have jurisdiction under subdivision (a),
or a court of the home state of the child has declined to exercise jurisdiction on the
ground that this state is the more appropriate forum under [MCL 722.12075or MCL
722.12086] and the court finds both of the following:
(i) The child and the child’s parents, or the child and at least 1 parent or a
person acting as a parent, have a significant connection with this state other than
mere physical presence.
(ii) Substantial evidence is available in this state concerning the child’s care,
protection, training, and personal relationships.
(c) All courts having jurisdiction under subdivision (a) or (b) have declined
to exercise jurisdiction on the grounds that a court of this state is the more
appropriate forum to determine the custody of the child under [MCL 722.1207 or
MCL 722.1208].
(d) No court of another state would have jurisdiction under subdivision (a),
(b), or (c).
4
MCL 722.1204 concerns temporary emergency jurisdiction.
5
MCL 722.1207 sets forth the bases upon which a court of this state having jurisdiction over a
custody matter may nonetheless decline to exercise it in deference to another forum.
6
Under MCL 722.1208, a court must decline to exercise its jurisdiction when a person invoking
its jurisdiction has engaged in unjustifiable conduct, except under specified circumstances.
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In this case, plaintiff, in his complaint, listed several addresses for the children, all in
Michigan but for one in Minnesota, but did not specify whether those residences were on Tribal
land. Plaintiff further asserted that “Michigan is the home state of the minor children as they have
resided in Michigan for at least 180 days prior to the commencement of this proceeding,” and that
“[t]his Court has both subject matter jurisdiction over this proceeding and personal jurisdiction
over the parties and their minor children,” while saying nothing of Tribal jurisdiction. In contrast,
defendant asserted at the hearing on the motion to dismiss that she and plaintiff were enrolled
members of the Tribe, that the subject children “are all either enrolled or eligible for enrollment,”
and that “[t]hey all live on the reservation,” and argued that the circuit court lacked even concurrent
jurisdiction with the Tribal Court. If defendant’s representations are correct, it would appear that
the Tribe, rather than Michigan, is the children’s home state.
If the Tribe is the children’s home state, MCL 722.1201(1)(a) itself expressly does not
confer jurisdiction on the circuit court. In that event, however, the circuit court may exercise
jurisdiction under MCL 722.1201(1)(b) if the Tribe declines to exercise jurisdiction on the ground
that the circuit court is the more appropriate forum, and if the circuit court finds that the children
and at least one parent have a significant connection with Michigan “other than mere physical
presence” within its borders, and also that substantial evidence concerning the children’s care and
personal relationships is available in Michigan. MCL 722.1201(1)(b).
But the circuit court offered no express findings concerning the children’s home state.
Defendant argues that the court impliedly found that Michigan was the home state by having
exercised jurisdiction. We observe, however, that the circuit court impliedly recognized the Tribe
as the home state, having contacted the Tribal Court with an apparent willingness to defer to the
Tribal Court should the latter wish to maintain, or reclaim, jurisdiction. The circuit court’s actions
thus do not clarify by implication whether that court made a “home state” determination.
The circuit court also articulated no factual findings regarding whether the children or
parents had significant connections with Michigan, or whether substantial evidence concerning the
children was available in Michigan. And the Tribal Court, according to the circuit court, did not
indicate that the Tribal Court dismissed its own custody-related case specifically because of a
finding that the circuit court was the more appropriate forum.
For these reasons, we conclude that there is an insufficient factual record from which to
evaluate the propriety of the circuit court’s decision to exercise personal jurisdiction in this case.
“[I]n general, the remedy for a failure to make proper findings of fact . . . is to remand the case to
the trial court for a reevaluation of the relevant factors.” Cheesman v Williams, 311 Mich App
147, 160; 874 NW2d 385 (2015), citing the Child Custody Act, MCL 722.21 et seq.
We also conclude that the circuit court erroneously exercised its operational jurisdiction in
this case because the record does not indicate that the Tribal Court dismissed the related proceeding
before it because of a determination that the circuit court would offer the more convenient forum.
MCL 722.1206 provides, in pertinent part:
(1) Except as otherwise provided in [MCL 722.1204], a court of this state
may not exercise its jurisdiction under this article if, at the time of the
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commencement of the proceeding, a child-custody proceeding has been
commenced in a court of another state having jurisdiction substantially in
conformity with this act, unless the proceeding has been terminated or is stayed by
the court of the other state because a court of this state is a more convenient forum
under [MCL 722.1207].
(2) Except as otherwise provided in [MCL 722.1204], before hearing a
child-custody proceeding, a court of this state shall examine the court documents
and other information supplied by the parties . . . . If the court determines that, at
the time of the commencement of the proceeding, a child-custody proceeding has
been commenced in a court in another state having jurisdiction substantially in
accordance with this act, the court of this state shall stay its proceeding and
communicate with the court of the other state. If the court of the state having
jurisdiction substantially in accordance with this act does not determine that the
court of this state is a more appropriate forum, the court of this state shall dismiss
the child-custody proceeding.
The timing of the filing of the custody action in the circuit court, while a child-protective
proceeding was pending in the Tribal Court, did not itself deprive the circuit court of operational
jurisdiction under MCL 722.1206(1) because of the statute’s exception for when “the proceeding
has been terminated,” as was the case here. Of concern, however, is the qualification that, for such
purposes, the foreign-state proceeding was “terminated or stayed by the court of the other state
because a court of this state is a more convenient forum.” (Emphasis added.) The record in this
case includes no finding below that the circuit court was a more convenient forum than was the
Tribal Court.
Plaintiff argues that the lack of a finding that the circuit court was the more convenient
forum is not problematic because MCL 711.1206(1) sets forth “two things” as exceptions to its
prohibition of the exercise of jurisdiction when a custody proceeding has been commenced in
another state: “(1) termination of the proceeding or (2) stay of the proceeding because the state
forum is more convenient.” Plaintiff thus argues that the qualification “because a court of this
state is a more convenient forum” applies only when the proceeding has been stayed, not when it
has been terminated. We disagree. The lack of a comma separating “the proceeding has been
terminated” from “or is stayed” indicates that the qualification “because a court of this state is a
more convenient forum” applies to both. Comporting with this reading is the provision in MCL
722.1201(1)(c) that includes, among the circumstances that must be present for a state court to
make an initial custody determination, that “a court of the home state of the child has declined to
exercise jurisdiction on the ground that this state is the more appropriate forum,” without concern
for whether the decision not to exercise jurisdiction took the form of an initial decision, or a
subsequent dismissal or stay of proceedings. Further, there is no logical reason for MCL
711.1206(1) to distinguish “terminated” from “stayed” such that only the latter eventuality
conditions allowing a state court to proceed upon a finding that the state forum is the more
convenient one. For these reasons, we conclude that, although the circuit court correctly
recognized that the Tribal Court, having “terminated” its child-protective case, removed that action
as an absolute bar to the circuit court’s exercise of jurisdiction under MCL 711.1206(1), the circuit
court erred by failing to recognize that the statute conditioned that effect on the Tribal Court
terminating its case specifically “because a court of this state is a more convenient forum.”
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As noted earlier, the circuit court reported that the Tribal Court judge “indicated via email
that the Grand Traverse Band does not have exclusive jurisdiction and has no concerns regarding
the matter proceeding in the state court,” and “also reported via email to this Court that the [Tribal
Court] court would not be a more appropriate forum.”
The circuit court’s reliance on its informal communications with the Tribal Court judge is
itself problematic because no record of those communications was made available to the parties.
MCL 722.1206(2) calls for “the court of this state” to “communicate with the court of the other
state.” MCL 722.1110 governs such communications, providing as follows:
(1) A court of this state may communicate with a court in another state
concerning a proceeding arising under this act.
(2) The court may allow the parties to participate in the communication. If
the parties are not able to participate in the communication, the parties shall be
given the opportunity to present facts and legal arguments before a decision on
jurisdiction is made.
(3) A communication between courts on schedules, calendars, court records,
and similar matters may occur without informing the parties. A record need not be
made of that communication.
(4) Except as provided in subsection (3), a record must be made of a
communication under this section. The parties must be informed promptly of the
communication and granted access to the record.
(5) For the purposes of this section, “record” means information that is
inscribed on a tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form. Record includes each of the following:
(a) Notes or transcripts of a court reporter who listened to a conference call
between the courts.
(b) An electronic recording of a telephone call.
(c) A memorandum or electronic record of a communication between the
courts.
(d) A memorandum or electronic record of a communication between the
courts that a court makes after the communication.
In this case, the lower court file contains no record of the circuit court’s communications with the
Tribal Court judge beyond what the circuit court described in its order denying the motion to
dismiss.
Regardless, taking the circuit court’s account at face value for present purposes means
acknowledging that the Tribal Court unhesitatingly deferred to the circuit court’s jurisdiction,
disclaimed the Tribal Court’s exclusive jurisdiction, and stated that the Tribal Court was not the
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more appropriate forum, thus seemingly implying that the two tribunals had concurrent
jurisdiction, but stopped short of opining that the circuit court presented the more convenient
forum. Nor did the circuit court endeavor to fill in that blank, having opined that “witnesses would
not be inconvenienced by travelling to the Leelanau Government Center versus the [Tribal Court]
as they are approximately 6 miles apart,” without implying that the circuit court offered the forum
of greater convenience for anyone involved in the case.
For these reasons, we conclude that the circuit court exercised jurisdiction in violation of
MCL 722.1206(1) because, although (we are told) the custody-related action earlier commenced
in the Tribal Court had been terminated, the record does not indicate that it was terminated
specifically because the Tribal Court found that the circuit court offered the more convenient
forum.
Accordingly, we vacate the circuit court’s orders respectively denying the motion to
dismiss and setting forth an initial custody determination. We remand this case to the circuit court
with instructions to make proper findings, reevaluate the relevant factors, and decide anew whether
it had personal jurisdiction over defendant and the children, and, if appropriate, to issue a new
initial custody determination and otherwise proceed with the case.
Reversed and remanded. We do not retain jurisdiction.
/s/ Amy Ronayne Krause
/s/ Michael J. Kelly
/s/ Christopher P. Yates
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