Attard v. Adamczyk

141 Mich. App. 246 (1985) 367 N.W.2d 75

ATTARD
v.
ADAMCZYK

Docket No. 77614.

Michigan Court of Appeals.

Decided March 4, 1985.

Herbert L. Kay, for plaintiff.

Draugelis, Ashton, Scully & Haynes (by Thomas J. Knatz), for defendant.

Before: ALLEN, P.J., AND J.H. GILLIS and W.J. GIOVAN,^[*] JJ.

J.H. GILLIS, J.

Plaintiff appeals as of right from the entry of a judgment granting defendant's motion for summary judgment for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1).

Pursuant to a judgment of the Macomb County Circuit Court, the marriage between plaintiff's daughter and the defendant was dissolved on September 27, 1976. Under the terms of the divorce judgment, defendant was awarded custody of the couple's two minor children, and specific visitation rights were granted to the plaintiff's daughter.

Plaintiff commenced this action in Oakland County, where the defendant now resides with his children, seeking an order granting the same specific visitation rights which were granted to her daughter under the terms of the divorce judgment. Plaintiff alleged that her daughter's employment required that she travel extensively outside the state, and as a result she has been unable to take full advantage of her specific visitation days. Plaintiff relied upon the so-called "Grandparent Visitation Act", MCL 722.27b; MSA 25.312(7b), to support her request for visitation rights. The circuit court, however, found the statute cited by plaintiff to be inapplicable to the facts of this case and thus granted defendant's motion for summary judgment. We agree and therefore affirm this aspect of the lower court's ruling.

A motion for summary judgment brought under GCR 1963, 117.2(1) for failure to state a claim upon which relief can be granted is designed to test the legal sufficiency of the claim as determined from the pleadings alone. The factual allegations of the complaint are to be taken as true, along with any inferences or conclusions which may fairly be drawn therefrom. The motion should be granted only where the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery. Borsuk v Wheeler, 133 Mich. App. 403, 406-407; 349 NW2d 522 (1984).

The statute here at issue, MCL 722.27b; MSA 25.312(7b), provides a means by which a grandparent may seek an order of visitation from the circuit court in the county in which the child resides. However, the circumstance under which such an order of visitation may be available is strictly limited. Section 27b(1) of the statute provides that a grandparent may seek an order of visitation "only if a child custody dispute with the respect to that child is pending before the court". A "child custody dispute" is then defined under § 27b(2) as a proceeding in which any of the following occurs:

"(a) The marriage of the child's parents is declared invalid or is dissolved by the court, or a court enters a decree of legal separation with regard to the marriage.

"(b) Legal custody of the child is given to a party other than the child's parent, or the child is placed outside of and does not reside in the home of a parent, excluding any child who has been placed for adoption with other than a stepparent, or whose adoption by other than a stepparent has been legally finalized." MCL 722.27b(2); MSA 25.312(7b)(2).

It should be obvious that neither of the definitions of a child custody dispute set out in the statute are applicable in the instant case. Subsection (a) does not apply since the marriage of the plaintiff's daughter and defendant had been dissolved by the Macomb County Circuit Court as of September 27, 1976. Further, the children's father was given custody under the terms of the divorce judgment, thus rendering subsection (b) inapplicable. Since the language of the statute is clear and unambiguous, judicial construction is neither required nor permitted. Perry v Sturdevant Manufacturing Co, 124 Mich. App. 11, 15; 333 NW2d 366 (1983). The trial court correctly granted defendant's motion for summary judgment.

Although not necessary for the resolution of this case, we wish to take this opportunity to express our concern over certain procedural and jurisdictional problems we perceive as arising from the provisions of MCL 722.27b; MSA 25.312(7b). Subsection (3) of this statute requires that an action for visitation must be brought in the circuit court of the county in which the grandchild resides. We believe that such a requirement will, in some cases, violate the traditional rule which grants to the trial judge who presided over a divorce action, or his successor, the continuing authority to oversee the parties' compliance with the terms of the divorce judgment. For example, MCL 552.17a; MSA 25.97(1) extends to the trial court having jurisdiction over the parties to a divorce the authority to direct an order of custody and support governing children of the marriage. Further, pursuant to MCL 552.17; MSA 25.97, the court also retains continuing authority to modify the provisions of a previously issued judgment of divorce. San Joaquin County, California v Dewey, 105 Mich. App. 122, 128; 306 NW2d 418 (1981). Due to the special nature of divorce cases, we believe that requests for modifications in divorce decrees and child custody disputes are best heard and decided by the court already familiar with the facts and special circumstances of each case. To the extent that MCL 722.27b; MSA 25.312(7b) requires a different court to hear a request for an order of visitation, we consider the statute to be unwisely written.

We conclude that the trial court ruled correctly in granting the defendant's motion for summary judgment, since no child custody dispute was pending before the court. We note, however, that pursuant to MCL 552.17; MSA 25.97, plaintiff might have been more successful had her daughter petitioned the Macomb County Circuit Court judge who presided over the divorce of the plaintiff's daughter and the defendant, or his successor, to modify the terms of the divorce judgment to authorize plaintiff to pick up the children in her daughter's place whenever the daughter was unable to exercise her visitation rights.

The next question presented is whether the trial court erred in granting costs and attorney fees to the defendant on the grounds that plaintiff's claim was "frivolous". Defendant's brief suggests that the trial court's actions were authorized by GCR 1963, 111.6, which provides:

"If it appears at the trial that any fact alleged or denied by a pleading ought not to have been so alleged or denied and such fact if alleged is not proved or if denied is proved or admitted, the court may, if the allegation or denial is unreasonable, require the party making such allegation or denial to pay to the adverse party the reasonable expenses incurred in proving or preparing to prove or disprove such fact as the case may be, including reasonable attorney fees."

However, as noted in the Court in Minor v Michigan Education Ass'n, 127 Mich. App. 196, 200; 338 NW2d 913 (1983), "[n]othing in GCR 1963, 111.6 confers any authority to award attorney fees or costs incurred in disputing an adverse party's position as to issues of law", but rather applies only to the steps taken by an opponent to establish disputed matters of fact. The Minor Court further stated that:

"We cannot condone the principle of allowing a trial court to apply GCR 1963, 111.6 to reimburse a party for time spent in disputing questions of law, no matter how improbable or novel the legal theory involved. Such an application not only contravenes the narrowly drawn language of GCR 1963, 111.6 as demonstrated supra, but more importantly carries with it the potential for deterring even good-faith litigants from seeking legitimate relief in the courts." 127 Mich App 200-201.

There can be no doubt that the case at hand involved a question of law, i.e., plaintiff's contention that she is entitled to visitation rights under the terms of MCL 722.27b; MSA 25.312(7b). While we have concluded that plaintiff's contention lacks merit, it involved only a legal interpretation and did not involve unwarranted factual allegations. Therefore, defendant was not forced to prepare proofs to dispute any allegations of fact. GCR 1063, 111.6 does not confer authority to award attorney fees in such a case and thus the award of costs and fees must be reversed.

Affirmed in part; reversed in part. No costs to either party.

NOTES

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