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C Matthew J Krieg v. Katherine a Baleja ( 2022 )


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  •             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
MATTHEW J. KRIEG,                                                    UNPUBLISHED
October 20, 2022
Plaintiff-Appellee/Cross-Appellant,
v                                                                    No. 359264
Gratiot Circuit Court
KATHERINE A. BALEJA, formerly known as                               LC No. 16-003404-DM
KATHERINE A. KRIEG,
Defendant-Appellant/Cross-Appellee.
Before: M. J. KELLY, P.J., and CAMERON and HOOD, JJ.
M. J. KELLY, P.J. (concurring).
I concur in the majority’s decision to affirm the trial court’s child-custody order. I write
separately because, for the reasons stated more thoroughly in my concurring opinion in Mr.
Sunshine v Delta College Bd of Trustees, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 358042) (M. J. KELLY, P.J., concurring), I would apply our Supreme Court’s raise-or-waive
jurisprudence to defendant’s unpreserved issue as opposed to a plain-error analysis. In my view,
the majority erroneously relies instead on cases from this Court that apply the plain-error standard
stated by our Supreme Court in People v Carines,
    460 Mich 750
    , 763;
    597 NW2d 130
     (1999), to
unpreserved issues raised in juvenile-delinquency proceedings, see In re Diehl,
    329 Mich App 671
    ;
    944 NW2d 180
     (2019), and child protective proceedings, see In re Utrera,
    281 Mich App 1
    ,
8;
    761 NW2d 253
     (2008) and In re VanDalen,
    293 Mich App 120
    , 135;
    809 NW2d 412
     (2011).
Juvenile-delinquency proceedings are criminal in nature, so the standard from Carines is
appropriate in Diehl. Moreover, our Supreme Court has applied the plain-error standard to child
protective proceedings. See In re Ferranti,
    504 Mich 1
    , 29;
    934 NW2d 610
     (2019). However, the
case before this Court is a civil case involving child custody. Our Supreme Court has long-held
that the failure to preserve an issue for appellate review in a civil case generally waives review of
that issue on appeal. Napier v Jacobs,
    429 Mich 222
    , 227;
    414 NW2d 862
     (1987); Walters v
Nadell,
    481 Mich 377
    , 387;
    751 NW2d 431
     (2008). Because our Supreme Court’s opinions in
-1-
Napier and Walters are binding precedent,1 I would find that by failing to raise the issue in the trial
court, defendant has waived review of it on appeal.
/s/ Michael J. Kelly
1
See Paige v City of Sterling Hts,
    476 Mich 495
    , 524;
    720 NW2d 219
     (2006) (stating that all lower
courts are bound by a decision issued by our Supreme Court until such time that the Supreme Court
itself overrules that decision).
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