Klont v. Klont , 130 Mich. App. 138 ( 1983 )

130 Mich. App. 138 (1983) 342 N.W.2d 549

KLONT
v.
KLONT

Docket No. 66527.

Michigan Court of Appeals.

Decided September 21, 1983.

McKay, Murphy & Guerre, P.C. (by Libby Altman Berngard), for plaintiff.

Smith & Smith (by L'Mell M. Smith), for defendant.

Before: MacKENZIE, P.J., and M.J. KELLY and S. EVERETT,^[*] JJ.

PER CURIAM.

The plaintiff in this case is an American citizen, while the defendant is a citizen of the Republic of West Germany. The parties met in Germany and subsequently were married in this state. They were domiciled here for a period of time, during the course of which the child whose custody is in dispute was born.

After the birth of the child, a divorce action was instituted in Michigan, but the parties reconciled and the complaint was dismissed. They then moved to Germany, the defendant and the minor child going in July, 1980, when the youngster was 13 months old. The plaintiff, by agreement of the parties, followed in October, 1980.

In March, 1981, the parties separated again and the defendant filed in the West German courts a suit for divorce and for custody of the child. The plaintiff in this action was served and obtained counsel. After a hearing, the defendant was given the right to occupy the marital home and did so with the minor child. A hearing was scheduled in the West German court on May 13, 1982, in connection with the divorce and custody matter. The day before the hearing, plaintiff took the child and returned to this country. On May 25, 1982, he filed a petition for custody in the Ingham County Circuit Court.

The defendant filed an answer alleging, among other things, that the Ingham County Circuit Court did not have jurisdiction to hear the matter in view of the provisions of the Uniform Child Custody Jurisdiction Act. MCL 600.651 et seq.; MSA 27A.651 et seq. The German court on May 13, 1982, at the hearing which plaintiff did not attend, entered an order granting temporary custody to the defendant and scheduling continuation of the hearing for May 27, 1982.

The Ingham County trial judge concluded that he did have jurisdiction and a hearing was held, after which the judge concluded that the best interests of the child would be served by awarding custody to the plaintiff father.

While the orders of the German court were admitted as evidence at the hearing, the judge stated that, because there was no evidence that West Germany had recognized the Uniform Child Custody Jurisdiction Act, he felt there was no alternative to his assuming jurisdiction. Section 673 of the act, MCL 600.673; MSA 27A.673, reads as follows:

"The general policies of sections 651 to 673 extend to the international area. The provisions of sections 651 to 673 relating to the recognition and enforcement of custody decrees or judgments of other states apply to custody decrees or judgments and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons."

Section 656(1) of the act provides that a Michigan court shall not exercise its jurisdiction if at the time there is a child custody proceeding pending in a court of another state which has exercised jurisdiction substantially in conformity with the act. MCL 600.656(1); MSA 27A.656(1). Neither of the exceptions provided in § 656(1), that the foreign court has stayed its proceedings or there is an emergency related to mistreatment of the child, applies in the present case. Also, § 663 of the act requires Michigan courts to recognize and enforce decrees of a court of another state if it exercised jurisdiction under factual circumstances meeting the jurisdictional standards of the act. MCL 600.663; MSA 27A.663. The act is not a reciprocal enactment; therefore, § 656(1) and § 663 apply even if the foreign jurisdiction has not adopted the act, so long as the foreign court's exercise of jurisdiction conforms with the criteria enumerated in the act. McDonald v McDonald, 74 Mich App 119, 127-128; 253 NW2d 678 (1977); Bull v Bull, 109 Mich App 328, 335; 311 NW2d 768 (1981).

It is clear that the German court had jurisdiction over the parties and their child under § 653(1)(a) of the act. Also, the plaintiff had prior notice of the hearing held in the German court on May 13, 1982, and the plaintiff may not claim that he had no reasonable opportunity to be heard at that proceeding, since he purposefully failed to attend it. The action of the plaintiff was exactly that which the statute sought to prevent, namely, the unilateral removal of a child in order to obtain an award of custody. We are satisfied that the trial judge was in error in determining that the circuit court had jurisdiction rather than the West German court. His order is therefore set aside. The case is remanded with instructions to enter an order enforcing the temporary custody order of the West German court.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.