Zaid Safdar v. Donya Aziz
Zaid Safdar v. Donya Aziz
Opinion
*220 Defendant appeals by leave granted 1 a March 24, 2017 order denying without prejudice defendant's motion to change domicile and relocate with the *221 parties' daughter to Pakistan. The underlying facts are not in dispute.
Plaintiff and defendant, both Pakistani citizens, were married in Pakistan on June 24, 2011, and relocated to the United States, where plaintiff resided with an employment visa. In 2015, defendant moved to Michigan to live with her aunt, while plaintiff continued to reside in Maryland. The couple's only daughter was born in Oakland County on January 1, 2016, and the parties divorced on December 21, 2016. Pursuant to the judgment of divorce, the parties agreed to share joint legal custody of the minor child, while defendant would maintain sole physical custody. The divorce judgment contained a provision prohibiting the exercise of parenting time in any country that is not a party to the Hague Convention on the Civil Aspects of International Child Abduction. At that time, the prohibition applied to Pakistan. Challenging only the trial court's denial of her motion for attorney fees, defendant filed a claim of appeal from the divorce judgment. That appeal is pending before this Court in Docket No. 336590.
In March 2017, defendant filed the motion to change domicile that is the subject *833 of this appeal, expressing her desire to relocate with the minor child to Pakistan as soon as possible and claiming that Pakistan had completed steps to become a party to the Hague Convention since entry of the judgment of divorce. Plaintiff objected, arguing that the trial court lacked authority to set aside or amend the judgment of divorce while defendant's appeal from that judgment was pending before this Court. Defendant responded that her first appeal was limited to the issue of attorney fees and that the appeal did not preclude the trial court's consideration of custody matters. The trial court adopted *222 plaintiff's position and entered an order dismissing defendant's motion for change of domicile without prejudice, reasoning that pursuant to MCR 7.208(A), it lacked jurisdiction to modify any component of the judgment of divorce.
Defendant filed a motion for reconsideration in the trial court, arguing that under MCR 7.208(A)(4), the trial court was not limited by the pending appeal from considering modification of the divorce judgment "as otherwise provided by law." Defendant argued that because MCL 722.27(1)(c) and MCL 552.17(1) permit a trial court to consider issues related to custody as they arise, the trial court did not need to wait for resolution of the pending appeal before it considered defendant's motion for change of domicile on the merits. In support of her position, defendant cited our Supreme Court's holding in
Lemmen v. Lemmen
,
On appeal, defendant argues that the trial court erred when it concluded that it lacked jurisdiction to consider the merits of her motion for change of domicile because the trial court was authorized to consider the issue of domicile under MCR 7.208(A)(4), MCL 722.27(1)(c), and MCL 552.17(1). We agree.
"The proper interpretation and application of a statute presents a question of law that we review de novo."
Petersen v. Magna Corp.
,
In pertinent part, MCR 7.208(A) provides:
After a claim of appeal is filed or leave to appeal is granted, the trial court or tribunal may not set aside or amend the judgment or order appealed from except
(1) by order of the Court of Appeals,
(2) by stipulation of the parties,
(3) after a decision on the merits in an action in which a preliminary injunction was granted, or
(4) as otherwise provided by law.
There is no dispute that the first three exceptions to the broad prohibition of MCR 7.208(A) do not apply in this case. Defendant argues that MCL 552.17(1) and MCL 722.27(1)(c) give the trial court the authority to invoke the MCR 7.208(A)(4)"as otherwise provided by law" exception, *834 thus allowing the court to consider defendant's motion for a change of domicile while the appeal in Docket No. 336590 is pending. MCL 552.17(1) provides:
After entry of a judgment concerning annulment, divorce, or separate maintenance and on the petition of either parent, the court may revise and alter a judgment concerning the care, custody, maintenance, and support of some or all of the children, as the circumstances of the parents and the benefit of the children require.
*224 Similarly, MCL 722.27(1)(c) of the Child Custody Act (CCA), MCL 722.21 et seq., permits a trial court to "modify or amend its previous judgments or orders for proper cause shown or because of change of circumstances until the child reaches 18 years of age .... "
In
Lemmen
, our Supreme Court held that MCL 552.17(1) and a related statute, MCL 552.28, "satisfy the exception in MCR 7.208(A)(4) allowing a trial court to amend an order or judgment during an appeal 'as otherwise provided by law.' "
Lemmen
,
to require the trial court to wait to make modifications until after an appeal is completed is contrary to the plain language of the statute[ ] and would defeat [its] purpose, which is to enable the trial court to make modifications to child and spousal support orders when such modifications are necessary. The appeals process might take several years to complete. If there is a change in circumstances that would affect the needs of one of the parties or their children, or the ability of one of the parties to pay, the trial court should not, and does not, have to wait until that time has passed to modify a support order. [ Id . ]
Plaintiff correctly notes that there is no caselaw applying MCL 552.17(1) as an exception to MCR 7.208(A)(4) in a case involving a change of domicile. Plaintiff argues that because the
Lemmen
Court's consideration was limited to issues involving spousal and child support, it should not be expanded to all custody determinations. But plaintiff's reading of
Lemmen
is myopic. Although the
Lemmen
Court considered
*225
the interplay of MCL 552.17(1) and MCR 7.208(A) in the context of child support, the Court framed the issue before it in general and comprehensive terms: "At issue here is whether MCL 552.17(1) and MCL 552.28 fall within an exception to the rule of MCR 7.208(A) that a trial court may not amend a final judgment after a claim of appeal has been filed or leave to appeal has been granted."
Lemmen
,
Under the plain language of MCL 552.17(1), a trial court is vested with authority to "alter a judgment concerning the care, custody, maintenance,
and
support of some or all of the children ...." (Emphasis added.) We are not persuaded by plaintiff's suggestion that after
Lemmen
, only one of these four coequal categories constitutes an exception under MCR 7.208(A). See
Robinson v. City of Lansing
,
*835
G.C. Timmis & Co. v. Guardian Alarm Co.
,
The parties also dispute whether a change in domicile is an issue concerning the care and custody of a child. In
Rains v. Rains
,
Although MCL 552.17(1) is not part of the CCA, they " 'relate[s] to the same person or thing, or the same class of persons or things,' " and should be read together harmoniously if possible.
Apsey
,
The trial court erred when it determined that it lacked the authority to consider defendant's motion for change of domicile and to modify the parties' divorce judgment during the pendency of defendant's appeal.
Reversed. We do not retain jurisdiction.
O'BRIEN, P.J., and JANSEN and MURRAY, JJ., concurred.
Safdar v. Aziz , unpublished order of the Court of Appeals, entered May 26, 2017 (Docket No. 337985).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.