KUBIAK v. STEEN

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Docket Number

Docket No. 17976.

Attorney(S)

Wenger, Vande Vrede, Lavigne Powers, for plaintiffs. Gage, Brukoff, Dubin Siudara, for defendant.

Judges

HOLBROOK, J.

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Smart Summary

Factual and Procedural Background

Defendant Ronald Steen was married to Karen Steen, daughter of the plaintiffs, Anthony and Virginia Kubiak. Their only child, David Allen Steen, was born on August 26, 1969. Karen and Ronald divorced on March 1, 1972, with custody of David awarded to Karen. Karen and David lived with the plaintiffs in Macomb County until Karen's death in a car accident on February 27, 1973. David was seriously injured and hospitalized in Children's Hospital, Wayne County. On March 14, 1973, the plaintiffs filed a custody action in the Macomb County Circuit Court. Defendant, residing in Wayne County, moved for a change of venue to Wayne County Circuit Court, which was denied. He sought and was granted leave to appeal this denial. The appeal was submitted on January 4, 1974, and decided on February 11, 1974.

Legal Issues Presented

Whether the defendant's motion for a change of venue was timely filed.
Whether the defendant's appearance in Macomb County Circuit Court subjected him to its jurisdiction and discretion to decide venue.
Whether the proper venue for the custody action was Macomb County or Wayne County, specifically whether the child's residence or domicile was that of the surviving parent in Wayne County after the death of the custodial parent.

Arguments of the Parties

Plaintiffs' Arguments

The defendant's motion for change of venue was not timely because it was raised after appearance.
Once the defendant appeared in Macomb County Circuit Court, he subjected himself to its jurisdiction and its discretion to decide venue.
Macomb County Circuit Court had jurisdiction and proper venue to hear the custody matter.

Defendant's Arguments

The motion for change of venue was timely, filed at the time of filing his answer in accordance with GCR 1963, 401.
The proper venue for the custody action is Wayne County because the child was physically present there at the time of filing.
The child's residence or domicile became that of the surviving parent (defendant) in Wayne County upon the death of the custodial parent, citing out-of-state authority.
The proper venue determination is to be made at the institution of the action.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
DesJardin v Lynn, 6 Mich. App. 439; 149 N.W.2d 228 (1967)	Proper timing and requirement for change of venue motions under GCR 1963, 401 and 404.	Confirmed that the motion for change of venue must be timely and that the court must order a change if venue is improper.
Gluc v Klein, 226 Mich. 175; 197 N.W. 691	Synonymity of "residence" and "domicile" in Michigan law.	Recognized but distinguished on facts; the court did not fully adopt this view in the case at hand.
In re Fox Estate, 3 Mich. App. 501; 142 N.W.2d 866	Synonymity of "residence" and "domicile".	Noted but found factually distinguishable from the present case.
Ortman v Miller, 33 Mich. App. 451; 190 N.W.2d 242 (1971)	Authority suggesting "residence" and "domicile" are not always synonymous.	Supported the court's reluctance to treat the terms as interchangeable in all cases.
Baram v Schwartz, 151 Conn. 315; 197 A.2d 334 (1964)	Out-of-state authority holding child's domicile becomes that of surviving parent upon death of custodial parent.	Rejected as inapplicable under Michigan law and the Child Custody Act's best interests standard.
Ostergren v Ostergren, 368 Mich. 408; 118 N.W.2d 245 (1962)	Statutory presumption favoring awarding custody to a parent in custody disputes.	Noted but held that this presumption does not mandate automatic assignment of child's domicile to surviving parent for venue purposes.

Court's Reasoning and Analysis

The court first addressed the timeliness of the defendant's motion for change of venue, concluding it was timely since it was filed with the answer, consistent with GCR 1963, 401. The court rejected the plaintiffs' argument that by appearing in Macomb County Circuit Court, the defendant submitted to its jurisdiction and discretion over venue, citing GCR 1963, 404 which mandates a change if venue is improper once a timely motion is made.

Turning to the substantive issue of proper venue under the Child Custody Act of 1970, the court accepted for argument's sake that the proper venue is where the child "resides or may be found" at the institution of the action. The defendant argued that since the child was hospitalized in Wayne County and the domicile of the child shifted to the surviving parent in Wayne County upon the custodial parent's death, venue should lie in Wayne County.

The court declined to adopt the defendant's premise that the child's domicile automatically shifts to that of the surviving parent upon death of the custodial parent, noting the lack of Michigan authority supporting this and the potential conflict with the best interests standard of the Child Custody Act. The court underscored that the statutory term used was "resides," not "residence" or "domicile," and analyzed the term "reside" as commonly understood to mean actual physical habitation rather than legal domicile.

Given that the child had lived with his mother in Macomb County until her death and the defendant did not argue a change in the child's actual residence, the court found the venue in Macomb County proper. The court emphasized that venue should be where the child can be found or actually lives to minimize disruption to the child's life.

Holding and Implications

The court affirmed the denial of the defendant's motion for change of venue, holding that Macomb County was the proper venue for the custody action.

The direct effect of this decision is that the custody dispute will proceed in Macomb County Circuit Court. The court did not establish a broad precedent that a child's domicile automatically follows the surviving parent after the death of a custodial parent, instead emphasizing the primacy of the child's best interests and actual residence in venue determinations under the Child Custody Act of 1970.

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KUBIAK v STEEN

HOLBROOK, J.

Defendant Ronald Steen was married to Karen Steen, daughter of the plaintiffs. Their only child, David Allen Steen, was born August 26, 1969. Karen and Ronald Steen were divorced March 1, 1972, by order of the Macomb County Circuit Court and the custody and care of David was granted to Karen Steen. Karen and David resided in the home of Karen's parents in Macomb County until February 27, 1973, when Karen was killed in an automobile accident in Macomb County. David was seriously injured in the accident and was being treated for his injuries in Children's Hospital, Wayne County, on March 14, 1973, when this custody action for him was instituted by his grandparents in Macomb County Circuit Court. At the time of the filing of this custody action the defendant Ronald Steen was residing in Wayne County. Defendant moved for a change of venue to Wayne County Circuit Court, which was denied. He sought emergency leave to appeal from that denial in this Court in August 1973. We granted leave to appeal on September 26, 1973.

We have essentially three issues before us on appeal. First, plaintiffs claim that defendant's motion for a change of venue was not timely raised. We disagree. The defendant filed his motion for a change of venue at the time he filed his answer, and GCR 1963, 401 expressly provides that: "Motion for change of venue shall be filed before or at the time the defendant files an answer". (Emphasis supplied.)

Second, plaintiffs argue that since the Macomb County Circuit Court could have jurisdiction to hear this child custody matter, once the defendant appeared before that court he subjected himself to its jurisdiction and thus it had full discretion to decide if venue was proper or not. This claim is without merit. Once a timely motion is made GCR 1963, 404 requires the court to order that improper venue be changed. DesJardin v Lynn, 6 Mich. App. 439; 149 N.W.2d 228 (1967).

Third, defendant claims that the trial court erred in denying his request for a change of venue. Under the Child Custody Act of 1970, MCLA 722.26; MSA 25.312(6), the proper venue in a child custody action lies in "the circuit court of the county where the child resides or may be found by complaint or complaint and motion for order to show cause". (Emphasis supplied.) From this statute defendant's argument proceeds thusly:

(1) The proper time to determine venue is at the institution of the action. DesJardin, supra.

(2) On the date of the institution of this custody action, March 14, 1973, David Steen could be "found" in Wayne County's Children's Hospital.

(3) On March 14, 1973, the "residence" or "domicile" (the terms are synonymous and interchangeable, Gluc v Klein, 226 Mich. 175; 197 N.W. 691; In re Fox Estate, 3 Mich. App. 501; 142 N.W.2d 866) of David Steen was that of the defendant father, who resided in Wayne County, since upon the death of a parent to whom custody has been awarded, the domicile of the child becomes that of the surviving parent. Baram v Schwartz, 151 Conn. 315; 197 A.2d 334 (1964); In re Skinner, 230 Iowa 1016; 300 N.W. 1; 136 ALR 907 (1941); Peacock v Bradshaw, 194 S.W.2d 551 (Tex, 1946); Clark v Jelinek, 90 Idaho 592; 414 P.2d 892; 136 ALR 914 (1966).

Therefore, venue should be set in Wayne County.

We have assumed solely for the purposes of this opinion the validity of propositions (1) and (2) of defendant's argument and proceed to dispose of this case through discussion of only proposition (3). At the outset we note that defendant claims that the terms "residence" and "domicile" are synonymous and interchangeable in Michigan. While we recognize that there is strong language in Gluc and In re Fox Estate, supra, holding the terms synonymous, both cases are factually distinguishable from this one. Moreover, there is some authority in this jurisdiction that suggests that the terms are not always synonymous. Ortman v Miller, 33 Mich. App. 451; 190 N.W.2d 242 (1971). For outstate cases, see 37 Words Phrases, "Residence", pp 339-362. See, also, 1 Restatement Conflicts of Laws, 2d, § 11, pp 45-46. However, we need not decide here in what cases the terms residence and domicile are to be treated as synonymous by this Court. For defendant's proposition (3) is erroneous on a more basic ground.

Defendant asserts that on the death of a parent with custody of a child the domicile of the child immediately becomes that of the surviving parent. While there is outstate authority, cited above, for this premise, there is none in Michigan. The outstate decisions are apparently grounded on the desire to give the surviving parent every advantage possible in custody proceedings and on the notion that since a minor is incapable of choosing his own legal domicile or residence, it must be determined by looking to that of his surviving parent. The instant action is brought under the Child Custody Act of 1970, under which the best interests of the child are paramount. MCLA 722.25; MSA 25.312(5); Ostergren v Ostergren, 368 Mich. 408; 118 N.W.2d 245 (1962). While it is true that when the custody dispute is between the parent and a third person there is a statutory, albeit rebuttable, presumption that the best interests of the child are served by awarding custody to the parent, this does not necessitate the holding that a child's residence or domicile in every case is that of his surviving parent. MCLA 722.25; MSA 25.312(5). The statutory presumption does not negate the motivating force embodied in the Child Custody Act, service of the best interests of the child. A rule written into Michigan law and thus into the Child Custody Act by judicial fiat to the effect that a child's residence or domicile is in all cases that of his surviving parent could conceivably work directly against, rather than for, the best interests of the child. We, therefore, decline to follow the case law from other jurisdictions in the facts and circumstances of this case. Thus, we reject the premise that the domicile or residence of a minor child is automatically that of his or her surviving parent in every situation.

Support for this ruling is found in the very language of the venue statute in issue. The Legislature did not use the word "residence" or "domicile" but "resides". That the term "resides" may have a different connotation than the term "residence" is without doubt.

"It has been said that the word `reside' has two distinct meanings, and that it may be employed in two senses, and, in what is sometimes referred to as the strict, legal, or technical sense, it means legal domicile as distinguished from mere residence or place of actual abode. In this sense the word `reside' means legal residence; legal domicile, or the home of a person in contemplation of law; the place where a person is deemed in law to live, which may not always be the place of his actual dwelling, and thus the term may mean something different from being bodily present, and does not necessarily refer to the place of actual abode. When employed in this sense, the word `reside' includes not only physical presence in a place, but also the accompanying intent of choosing that place as a permanent residence.

"In what is sometimes referred to as its popular sense, the word `reside' means the personal, actual, or physical habitation of a person; actual residence or place of abode; and it signifies being physically present in a place and actually staying there. In this sense the term means merely residence, that is, personal residence, and it does not mean legal residence or domicile." (Emphasis supplied.) 77 CJS, "Reside", pp 285-286.

We believe that the Legislature intended the word "reside" to be used in its "popular sense" when used in the venue statute here in issue. For if the primary goal in custody actions is service of the best interests of the child, it is only logical that the law insist that custody suits be litigated either where the child can be found or actually lives (resides), since either locus will generally mean the least disruption of the child's personal life over the duration of the suit.

Defendant admitted in his brief on appeal that up to the time of his former wife's death, the child David Allen Steen lived with Karen Steen in Macomb County. Defendant did not argue either before the trial judge or this Court in his brief on appeal that the child's actual residence had been changed from Macomb County. Thus, we find that the trial judge did not err in finding that venue in this dispute could properly be found in Macomb County.

Affirmed. Costs to await the final outcome.

All concurred.