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Spring 2005 Family Law Appellate Decisions

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Issue 27, Spring 2005

Recent Appellate Decisions
by Rebecca Shiemke, MPLP Family Law Attorney

Following is a summary of some recent family law court decisions. The summary includes one Michigan Supreme Court decision, two published Court of Appeals decisions and one unpublished decision concerning retaliation against a PPO petitioner.

Arbitration and Custody Determination

MacIntyre v MacIntyre, 472 Mich 882 (2005)

Issued March 31, 2005

The Michigan Supreme Court reversed the Court of Appeals decision, which held that when a party challenges an arbitrator's custody determination, the trial court must hold a de novo hearing on the best interest factors. (See MacIntyre v MacIntyre, 264 Mich App 690 (2005). The Supreme Court stated that the arbitration statute merely requires a "review" of an arbitrator's custody determination, and, as long as the reviewing court is able to independently determine that the custody determination is in the child's best interests, an evidentiary hearing in not required.

Paternity Act and Standing

Numerick v Krull, 265 Mich App 232 (2005)

Issued February 15, 2005

Grand Traverse Circuit Court

The Court of Appeals affirmed the trial court's order dismissing Plaintiff's Paternity Act, where the child was not "born out of wedlock" as defined in the Act.

Facts: The parties had an ongoing relationship and Defendant became pregnant. When the relationship ended and before the child's birth, Plaintiff filed an action under the Paternity Act. Defendant then married another man and gave birth during the marriage. The trial court dismissed Plaintiff's suit finding that the child was not "born out of wedlock" as defined in the Paternity Act.

Decision: The Court of Appeals affirmed, finding that Plaintiff's action was barred by the language of the Paternity Act and subsequent case authority. The focus of the Court was on the definition of "a child born out of wedlock." In part, the paternity act defines the phrase as a child born to a woman who was not married from conception to the date of the birth of the child. The Court dismissed Plaintiff's attempt to distinguish his case based on the fact that his action was filed before the child was born, stating that the statute permits an action to be brought only with regard to a child born out of wedlock, regardless of the timing of the action. Finally, the Court noted its lack of authority to rewrite statutes and invited Plaintiff to seek relief from the legislature.

Change of Custody and the "100 Mile Rule"

Grew v Knox, 265 Mich App 333 (2005)

Issued February 24, 2005

Monroe Circuit Court

The Court of Appeals affirmed the trial court's decision denying defendant's motion to change domicile, vacated the court's decision changing custody and remanded for an evidentiary hearing on change of custody.

Facts: In 1998 a support order was entered that also awarded the parties joint legal custody and Plaintiff physical custody of the minor child. In 2004, Plaintiff decided to move to Traverse City and Defendant filed a motion for temporary custody. At a hearing, the trial court set an evidentiary hearing to determine whether plaintiff could move before considering the change in custody request. The court also permitted the child to stay with defendant until the hearing. At the evidentiary hearing the court found that plaintiff failed to meet her burden to change domicile under MCL 722.31 (the "100-mile rule"), did not hold a hearing on defendant's motion to change custody and granted temporary custody to defendant.


Change of custody. The Court held that an evidentiary hearing is mandated before custody can be changed, even on a temporary basis. Here, the trial court's determination that a change of domicile was not warranted and plaintiff's intent to remain in Traverse City required a review of custody, including an analysis of the best interest factors before changing custody.

"100-mile rule". The Court held that the so-called "100-mile rule" applies to all custody orders, including those entered prior to the enactment of MCR 722.31. The Court upheld the trial court's denial of plaintiff's motion to change domicile under MCR 722.31 and found that the trial court properly focused on the child rather than the party seeking the change.

Negligence Claims Against PPO Petitioner

Oliver v Penczak, Court of Appeals Docket No. 250560


March 3, 2005

Wayne Circuit Court

The Court of Appeals affirmed the trial court's decision dismissing Plaintiff's false light and abuse of process claims against Defendant for statements Defendant made in her PPO petition and to the police.

Facts: In 2000, Defendant, Marie Penczak, obtained a PPO against plaintiff based on specific statements she made in her petition. Plaintiff was subsequently arrested for violating the PPO. After it expired, defendant petitioned for and was granted a second PPO. In 2002, plaintiff filed this action against defendant alleging that defendant's statements in her PPO petition and to the police portrayed plaintiff in a false light and constituted libel and slander.


False light claim. The Court of Appeals found that all of defendant's statements in connection with obtaining and enforcing the PPO were made to the police. Case law establishes that communications made to police regarding criminal activity are absolutely privileged and where an absolute privilege exists, there can be no action for defamation.

Abuse of process claim. To prevail on an abuse of process claim, plaintiff must show that defendant has used a proper legal procedure for an improper purpose given the intended use of that procedure. Further, plaintiff must show some corroborating act that demonstrates the ulterior purpose. Here, plaintiff argued that defendant's ulterior motive in seeking a PPO was to have plaintiff arrested and gain an advantage in their divorce action. The court dismissed that argument finding that the fact that defendant caused plaintiff to be arrested doesn't relate to the reason for which she sought the PPO. Further, defendant's argument is undermined by the fact that defendant's second PPO was requested after the parties' divorce was final.

Frivolous claim. Finally, the Court affirmed the trial court's finding that plaintiff's complaint was frivolous based on a review of plaintiff's claims. Plaintiff's first two claims were without legal merit. He conceded that his libel and slander claim was barred by the statute of limitation and his false light was barred by absolute privilege. Plaintiff's third claim--abuse of process--was at least partially without legal merit, as discussed above. As a result, plaintiff was required to pay attorney fees.