Brown v. Brown

192 Mich. App. 44 (1991) 480 N.W.2d 292

BROWN
v.
BROWN

Docket No. 129642.

Michigan Court of Appeals.

Decided November 19, 1991, at 9:05 A.M.

Tammy R. Evett, for Janet Brown.

Kosick & Rochau (by Peter H. Kosick), for Kenneth and Josephine Brown.

Before: JANSEN, P.J., and MICHAEL J. KELLY and BRENNAN, JJ.

PER CURIAM.

On October 15, 1987, the trial court entered a judgment of divorce providing that plaintiff had sole physical custody of the parties' daughter and that plaintiff and defendant had joint legal custody. Two years later, petitioners, as paternal grandparents, filed a petition seeking visitation rights. On May 25, 1990, the circuit court entered an order denying the grandparents' request for visitation, holding that there was no longer a custody dispute pending and, therefore, the court was without jurisdiction to hear petitioners' request. Petitioners appeal as of right. We reverse.

MCL 722.27b(1); MSA 25.312(7b)(1) provides that a grandparent of a child may seek an order for visitation only if a child custody dispute with respect to that child is pending before the court. A child custody dispute includes a proceeding where 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. MCL 722.27b(2); MSA 25.312(7b)(2).

The issue presented in the present case is whether the child custody dispute is considered to be still pending after the judgment of divorce is entered. We hold that it is. We agree with the reasoning in two decisions issued by panels of the Court of Appeals, Jewett v Jewett, 172 Mich App 391; 431 NW2d 523 (1988), and Olepa v Olepa, 151 Mich App 690; 391 NW2d 446 (1986). Both panels held that a child custody dispute is still pending for the purposes of requests for grandparents' visitation after a divorce judgment has been entered. Jewett, supra at 394, Olepa, supra at 696-697. The legislative intent behind § 7b was to require that an action for annulment, divorce, or legal separation be filed before a grandparent could seek visitation. However, once the action is commenced, the circuit court retains jurisdiction for purposes of enforcement or modification of the judgment until the child reaches the age of majority. Jewett, supra; Olepa, supra.

We note that another panel of this Court reached a different conclusion in Attard v Adamczyk, 141 Mich App 246; 367 NW2d 75 (1985), apparently premising its decision on the fact that a divorce had already been granted and the notion that a child custody dispute is no longer pending after a divorce judgment is entered. To the extent that our opinion is in conflict with Attard, we disagree with the Attard opinion. To this extent, our opinion resolves a prior conflict within the Court of Appeals and becomes the controlling law regarding this issue under Administrative Order No. 1990-6, 436 Mich lxxxiv.

Reversed and remanded. We do not retain jurisdiction.