Charlene Diane Dorais v. Gabor George Burt ( 2023 )

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
CHARLENE DIANE DORAIS, UNPUBLISHED
May 18, 2023
Plaintiff-Appellee,
v No. 361132
Kent Circuit Court
GABOR GEORGE BURT, LC No. 21-010452-DM
Defendant-Appellant.
Before: CAMERON, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
In this divorce case involving a challenge to the trial court’s jurisdiction, defendant, Gabor
George Burt, appeals by leave granted1 the trial court’s denial of his motion to dismiss plaintiff,
Charlene Diane Dorais’s, complaint for divorce. For the reasons explained herein, we reverse the
trial court’s denial of the motion to dismiss and remand for entry of an order dismissing the
noncustodial components of plaintiff’s complaint.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
The parties married in Budapest, Hungary, in September 1993. From 2000 onward, they
and their four children lived primarily in the United States, except for approximately 18 months
spent in Hungary between 2014 and 2016. When this proceeding began, the parties’ only minor
child resided with plaintiff in Grand Rapids. The parties and their children have dual citizenship
in the United States and Hungary. In May 2021, defendant left the marital home in Grand Rapids
and moved back to Hungary. In September 2021, he filed a lawsuit in Budapest seeking dissolution
of the parties’ marriage. In November 2021, plaintiff filed a complaint for divorce in Kent County.
In response, defendant sent a letter to the trial judge assigned to the case and explained that he
resided in Budapest, that he had already initiated a divorce proceeding in Hungary, and that the
Hungarian court had exercised jurisdiction and scheduled an initial hearing for January 2022.
1
Dorais v Burt, unpublished order of the Court of Appeals, entered August 11, 2022 (Docket No.
361132).
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Defendant asked the trial court to dismiss plaintiff’s complaint “on the basis of parallel
proceedings.”
Plaintiff argued in response that the Michigan court had jurisdiction over the case. Plaintiff
asserted that jurisdiction is properly challenged only if Michigan declined jurisdiction. Plaintiff
urged the trial court to deny defendant’s motion to dismiss for these reasons.
The trial court found that plaintiff’s complaint was properly filed in Michigan. Plaintiff
alleged that she had resided in Michigan for more than 180 days and in Kent County for more than
10 days immediately before she filed her verified complaint for divorce. In addition, the parties
jointly owned property in Michigan. The trial court concluded that it had jurisdiction over the
divorce case and the minor child custody case because the child had lived in Michigan for the past
five years. The trial court entered an order denying defendant’s motion to dismiss for the reasons
stated on the record. Nothing in the court’s comments indicated that it considered the Hungarian
court to have initiated the proceeding. This appeal followed.
II. JURISDICTION
Defendant argues that the trial court erred by failing to limit the exercise of its jurisdiction
to the custodial matters in plaintiff’s divorce complaint pursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), MCL 722.1101 et seq., and dismissing the
noncustodial matters under MCR 2.116(C)(6). We agree.
A. STANDARD OF REVIEW
Defendant’s request to the trial court to dismiss the divorce proceedings initiated by
plaintiff “on the basis of parallel proceedings” was the functional equivalent of moving for
summary disposition under MCR 2.116(C)(6). We review de novo a trial court’s decision on a
motion for summary disposition, “reviewing the record as it existed at the time of the trial court’s
ruling.” Planet Bingo, LLC v VKGS, LLC, 319 Mich App 308, 319; 900 NW2d 680 (2017).
Summary disposition under MCR 2.116(C)(6) “is appropriate whenever there is another action
between the same parties involving the same claims currently initiated and pending at the time of
the decision regarding the motion for summary disposition.” Planet Bingo, LLC, 319 Mich App
at 325 (quotation marks and citation omitted). This subrule applies even when the other action is
in a foreign court. See Valeo Switches & Detection Sys, Inc v Emcom, Inc, 272 Mich App 309,
319; 725 NW2d 364 (2006). “MCR 2.116(C)(6) is a codification of the former plea of abatement
by prior action, the purpose of which was to protect parties from the harassment of new suits.” Id.
at 313 (quotation marks and citation omitted). The plain language of MCR 2.116(C)(6) is in
keeping with that purpose, i.e., the prevention of “litigious harassment involving the same question
and claims as those presented in pending litigation.” Id. at 319-320 (quotation marks and citation
omitted).
Meanwhile, a trial court’s exercise of jurisdiction under the UCCJEA is reviewed for an
abuse of discretion. Cheesman v Williams, 311 Mich App 147, 150; 874 NW2d 385 (2015); Nash
v Salter, 280 Mich App 104, 108; 760 NW2d 612 (2008). An abuse of discretion occurs when a
court “chooses an outcome outside the range of principled outcomes.” Zalewski v Zalewski, ___
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Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 357047); slip op at 2 (quotation marks
and citation omitted).
B. LAW AND ANALYSIS
The question here is whether the trial court properly exercised jurisdiction over the parties’
divorce. The Hungarian and Michigan actions involve the same parties and the same claim, i.e., a
request for dissolution of a marriage. Accordingly, the divorce actions filed in Hungary and
Michigan are sufficiently similar that they constitute the “same claim” between the same parties.
Planet Bingo, LLC, 319 Mich App at 325. Defendant filed for divorce first in the Hungarian court,
so plaintiff’s complaint is subject to dismissal under MCR 2.116(C)(6). But because this case also
involves a minor child, child custody is at issue.
“The UCCJEA governs child custody proceedings involving Michigan and a proceeding
or party outside of the state.” Hernandez v Mayoral-Martinez, 329 Mich App 206, 210; 942 NW2d
80 (2019). The UCCJEA “treats foreign countries as another ‘state’ for jurisdictional purposes.”
Id. “Under the UCCJEA, a child’s initial custody determination must take place in the child’s
home state, unless the home state declines to exercise home-state jurisdiction under the UCCJEA
because another state would be a more appropriate forum.” Foster v Wolkowitz, 486 Mich 356,
359; 785 NW2d 59 (2010); see MCL 722.1201. “ ‘Home state’ means the state in which a child
lived with a parent or a person acting as a parent for at least 6 consecutive months immediately
before the commencement of a child-custody proceeding.” MCL 722.1102(g). “ ‘Child-custody
proceeding’ means a proceeding in which legal custody, physical custody, or parenting time with
respect to a child is an issue. Child-custody proceeding includes a proceeding for divorce . . . .”
MCL 722.1102(d). The UCCJEA specifically provides for bifurcation of a child-custody
proceeding and a divorce proceeding. MCL 722.1207(4); see Ramamoorthi v Ramamoorthi, 323
Mich App 324, 334-335; 918 NW2d 191 (2018) (indicating that a trial court’s lack of jurisdiction
“to make a custody determination did not prevent the trial court from entering an otherwise valid
divorce judgment concerning noncustody matters”).
The parties do not dispute that the UCCJEA applies here. Nor can it be reasonably disputed
that the Michigan court has home-state jurisdiction under the UCCJEA to make an initial custody
determination. Indeed, defendant acknowledged that the parties’ minor child had resided in
Michigan for the past five or six years during the hearing on his motion to dismiss. Given this
acknowledgment, and knowing that another action between the same parties involving the same
claim had been initiated in a Hungarian court, the trial court erred by not limiting its exercise of
jurisdiction to child-custody determinations under the UCCJEA and applying the unambiguous
language of MCR 2.116(C)(6) to dismiss without prejudice the noncustodial parts of plaintiff’s
complaint for divorce. See Valeo Switches, 272 Mich App at 319 (observing that dismissal without
prejudice is appropriate in case the foreign court’s jurisdiction is disputed or the case is dismissed
for a reason other than its merits). If the Hungarian court does not resolve issues concerning the
parties’ jointly owned Michigan property, either party may file an action thereafter in Michigan to
resolve those outstanding issues. Whether comity dictates that the Hungarian divorce degree
should be recognized and enforced in Michigan can only be determined after the decree has been
issued. See Dart v Dart, 460 Mich 573; 597 NW2d 82 (1999).
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Reversed and remanded for entry of an order dismissing the noncustodial components of
plaintiff’s complaint for divorce. We do not retain jurisdiction.
/s/ Thomas C. Cameron
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
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