Moses v. Oakland Circuit Judge , 14 Mich. App. 265 ( 1968 )

14 Mich. App. 265 (1968) 165 N.W.2d 497

MOSES
v.
OAKLAND CIRCUIT JUDGE

Docket No. 4,836.

Michigan Court of Appeals.

Decided November 26, 1968.

Louis Rosenzweig, for plaintiff.

Garry Borin, for defendant.

PER CURIAM:

This is a complaint for superintending control to vacate an order of Oakland county circuit court judge Arthur E. Moore ordering that jurisdiction over the minor child of the above parties to a divorce action be transferred to the Oakland county juvenile court.

Plaintiff filed suit for divorce against defendant Donald Edward Moses in Oakland county circuit court and an ex parte order for custody of the minor child and a preliminary injunctive order were issued. Defendant Moses appearing in propria persona filed a counter-claim for divorce and a motion to vacate the orders. Upon hearing, the orders were modified; defendant objected and the matter was brought on for settlement on December 18, 1967.

On December 19, 1967, Judge Moore on his own motion transferred "jurisdiction over the minor child" to the Oakland county juvenile court.

A review of the order and the record reveals an apparent emergency situation confronting an experienced and compassionate trial judge. It is mandatory for the trial judge to use inherent judicial powers in order to prevent total chaos in the court-room. Particularly is this true where we have vague statutory vehicles with which to operate. (See Sovereign v. Sovereign [1958], 354 Mich. 65.)

We are not primarily concerned with the issue of custody, although it is inconceivable that it is not encompassed herein. We are primarily concerned with the issue of waiver of jurisdiction to a probate court.

The citation by plaintiff and defendants of the case of Riemersma v. Riemersma (1945), 311 Mich. 452, is not applicable except on the issue of custody. No challenge was made by either party on the question of proper waiver of jurisdiction over the child.

CL 1948, § 712A.2, as amended by PA 1965, No 182 (MCLA § 712A.2; Stat Ann 1968 Cum Supp § 27.3178[598.2]) which controls probate court procedure must be construed in its relation to CL 1948, § 552.15 (Stat Ann 1957 Rev § 25.95). We believe the latter controls on the facts before us.

We are convinced that a trial judge must make a preliminary finding that a child is "dependent and neglected" in order to effectively waive jurisdiction to a probate court. Further, that a probate court can only accept jurisdiction after such findings of fact have been made or concluded. Judge Moore's order does not meet the requirements. Jernigan v. Jernigan (1955), 344 Mich. 511.

It is ordered that the order of Judge Moore be vacated.

McGREGOR, P.J., and QUINN and LETTS, JJ., concurred.